Pace Law Review
Volume 30
Issue 5 Fall 2010
Opening Up a Closed World: A Sourcebook on
Prison Oversight

Article 13

11-18-2010

The Role of Civilian Organizations with Prison
Access and Citizen Members—The New York
Experience
John M. Brickman

Recommended Citation
John M. Brickman, The Role of Civilian Organizations with Prison Access and Citizen Members—The
New York Experience, 30 Pace L. Rev. 1562 (2010)
Available at: http://digitalcommons.pace.edu/plr/vol30/iss5/13
This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law
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The Role of Civilian Organizations
with Prison Access and Citizen
Members—The New York
Experience
John M. Brickman
“You can only expect what you inspect.”1
Even as incarceration represents the most intrusive power
of the state, the deprivation of citizens’ liberty, we demand that
modern government be transparent and accountable. But no
government institution presents more opacity, and is less
answerable, than the prison.
The independent civilian
overseer addresses and ameliorates the conundrum.
New York offers two models of citizen oversight2 agencies
for correctional facilities, one a private organization with
statutory rights of prison access and the other a government
agency with powers mandated by law. The Correctional
Association of New York, which visits and inspects state
prisons, is non-governmental but operates with citizen
volunteers and a professional staff under a legislative grant of
authority. The New York City Board of Correction, a New York


Mr. Brickman served as the Executive Director of the New York City
Board of Correction (1971-75) and the Chair of the Board of The Correctional
Association of New York (2005-08). He is a member of Ackerman, Levine,
Cullen, Brickman & Limmer, LLP, located in Great Neck, New York, where
he practices commercial litigation, and is also a Commissioner of the New
York State Commission on Public Integrity. He speaks and writes regularly
on issues relating to prisons and jails, as well as lawyers’ ethics. Mr.
Brickman received his B.A. degree from The Johns Hopkins University in
1966, and his J.D., cum laude, from Columbia University School of Law in
1969. This paper presents an expanded version of his presentation at the
“Opening of a Closed World” conference.
1. JACK MAPLE & CHRIS MITCHELL, THE CRIME FIGHTER: HOW YOU CAN
MAKE YOUR COMMUNITY CRIME FREE 187-88 (1999).
2. A civilian overseer is someone who is not a correctional professional,
or at the very least, someone who may have worked in corrections but no
longer does, and hence presents the prospect of independence.

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City government agency, oversees city correctional facilities
and functions with unpaid board members appointed by
different (and sometimes competing) branches of government,
assisted by a professional staff.3 Each body offers lessons for
effective oversight.
In existence for 166 years, the Correctional Association
enjoys the statutory right of access to New York state prisons.4
From its organization in 1844, the Association has sent citizen
volunteers to visit, monitor, and evaluate New York state
correctional facilities. Since 1846, the Association has had the
right, by statute, to visit state correctional facilities.5 It guards
its privilege vigorously and exercises it frequently.
The
Association typically visits ten or more state prisons annually
and prepares and presents detailed reports on its visits to the
Department of Correctional Services (“DOCS,” the agency that
operates the facilities), the legislature, and the public.6 It also
issues extensive topical reports7 and conducts public education
3. N.Y. CITY CHARTER § 626 (1977).
4. Chapter 163 of the Laws of 1846, which incorporated the Prison
Association of New York (its original title; the name changed in 1961),
provided that the executive committee of the Association,
[b]y such committees as they shall from time to time
appoint, shall have power, and it shall be their duty to visit,
inspect and examine, all the prisons in the state, and
annually report to the legislature their state and conditions,
and all such other things in regard to them as may enable
the legislature to perfect their government and discipline.
1846
N.Y.
Laws
ch.
163,
§
6,
available
at
http://www.correctionhistory.org/html/chronicl/cany/html/cany02a.html.
4. The Association is a New York not-for-profit corporation with taxexempt status under the Internal Revenue Code. See I.R.C. § 501(c)(3)
(2006).
5. Accordingly, the Association plays a rare, perhaps unique, role in the
oversight of American prisons. Its only counterpart appears to be the
Pennsylvania Prison Society, the authorized members of which may visit
Pennsylvania correctional institutions. 61 PA. CONS. STAT. ANN. §§ 3512,
3513 (West 2009).
6. For a roster of available reports, see Correctional Association of New
York,
Reports
and
Policy
Briefings,
http://www.correctionalassociation.org/publications/reports.htm (last visited
Mar. 28, 2010).
7. See, e.g., CORR. ASS’N OF N.Y., HEALTHCARE IN NEW YORK PRISONS 20042007
(2009),
available
at
http://www.correctionalassociation.org/publications/download/pvp/issue_repor

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programs.
In its early years, the roster of Correctional Association
citizen volunteers included New York’s most prominent, and
accordingly, most affluent men (until the twentieth century,
Correctional Association activists were virtually all male).
They included Theodore Roosevelt, John D. Rockefeller,
Andrew Carnegie, Cornelius Vanderbilt, Benjamin F. Butler
(Attorney General of the United States and later United States
Attorney for the Southern District of New York), John J. Astor,
Jr., Samuel F. B. Morse, Jacob H. Schiff, and a host of other
names that are recognizable instantly as representative of New
York’s elite.
The profile of the Correctional Association visitor has
changed dramatically. In addition to prominent citizens,
Association volunteers now include men and women with
diverse racial, ethnic, economic, educational, and vocational
backgrounds. Some have long advocated the improvement of
prison conditions and programs.
Others have enjoyed
distinguished professional careers as physicians and lawyers,
or in academia. In addition, the list includes ex-offenders,
whose special experiences present an irreplaceable resource for
the work of the Association, indeed for any monitor of prison
operations, programs, and conditions.
The New York City Board of Correction was established in
1957, upon adoption of Section 626 of the City Charter.8 Its
powers and duties have included, among others, the inspection
and visitation “at any time9 of all institutions and facilities
under the jurisdiction” of the New York City Department of
ts/Healthcare_Report_2004-07.pdf.
8. For a history of the Board of Correction, see Annette Gordon-Reed,
Watching the Protectors: Independent Oversight of Municipal Law
Enforcement Agencies, 40 N.Y.L. SCH. L. REV. 87, 91-105 (1995). See also
Harold Baer, Jr. & Arminda Bepko, A Necessary and Proper Role for Federal
Courts in Prison Reform: The Benjamin v. Malcolm Consent Decrees, 52
N.Y.L. SCH. L. REV. 3, 18 n.62 (2008).
9. Charter revision approved in 1975, infra note 12 and accompanying
text, added the phrase “at any time.” The City Charter Revision Commission
included the phrase in the referendum at the suggestion of the Board, which
was concerned about limitation on its access that jail administrators might
impose.
The original charter language, which governed until the
effectiveness of the changes approved in 1977, provided simply for “[t]he
inspection and visitation of all institutions and facilities under the
jurisdiction of the department.”

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Correction, which operates the city’s jail and prison system;10
the inspection of all department records; the evaluation of
departmental performance; and the establishment of grievance
procedures for inmates and department employees.11
In a major expansion of the Board’s authority, beyond its
initial “relatively undefined mandate,”12 a 1977 City Charter
amendment gave the Board the additional power to establish
minimum standards for the “care, custody, correction,
treatment, supervision, and discipline of all persons held or
confined under the jurisdiction of the Department.”13 Since the
amendment, the Board also has had the power to issue
subpoenas, conduct hearings, require the attendance of
witnesses, and compel the production of documents.14
From the establishment of the Board until 1977, the mayor
selected all nine members and appointed its chair.
Consequently, the Board was only as independent and
aggressive as the mayor wished, and a mayor who preferred
seeming harmony, or to avoid public criticism of one mayoral
appointee (the correction commissioner) by others (the Board),
had the obvious opportunity to defang the Board. In practice,
mayors have taken various approaches. For example, Rudolph
Giuliani tried repeatedly to abolish the Board.15 Conversely,
10. The mayor appoints the Commissioner of Correction (chief executive
of the Department of Correction), who has responsibility for the operation of
the department. N.Y. CITY CHARTER § 623.
11. N.Y. CITY CHARTER § 626.
12. Gordon-Reed, supra note 8, at 92. An empowered Board (and
especially an active and independent chair) can use the Board’s influence to
bring progressive change to the jails. William J. vanden Heuvel, who chaired
the Board from its revitalization in October 1970 until February 1973,
provided a remarkable example of provocative leadership, even before the
Board had power to set minimum standards for the Department of
Correction. Under vanden Heuvel, the Board and its staff visited institutions
regularly, exercising the singular power that gives the Board purpose and
permits it to fulfill its mandate.
13. N.Y. CITY CHARTER, ch. 25, § 626(e) (1977) (adopted by referendum in
1975, effective January 1, 1977). Board members recognized the risks of
their added duties. At a board meeting before the referendum, member
David A. Schulte reminded colleagues that adopting the expansion would
change the nature of members’ responsibilities, and noted that some might
not welcome the new burdens. As the staff head, I attended that meeting.
14. N.Y. CITY CHARTER § 626(g).
15. See, e.g., Francis X. Clines, Rikers Is Tense as Cuts Loom, and
Official Warns of Crisis, N.Y. TIMES, Nov. 17, 1994, at B1; Alison Mitchell
Council Passes a Deficit-Cutting Package, N.Y. TIMES, Feb. 3, 1995, at B7;

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after riots raged throughout the department in October 1970,
John V. Lindsay revived the Board by appointing William J.
vanden Heuvel as chair, and tolerated, indeed welcomed, the
Board as activist foil to the department, a move that lead to the
“retirement” of the incumbent correction commissioner.16
It was clear that allowing the mayor to appoint, and thus
control, both the watchdog and the watched made little sense.
Accordingly, since the 1977 City Charter changes, the mayor
has shared the authority to appoint board members with the
City Council (the city’s legislative body) and the presiding
justices of the Appellate Division for the First and Second
Judicial Departments (the two intermediate state appellate
courts located in the city).17 Each appoints three members for
terms of six years, with staggered expirations.18
Although the mayor appoints the chair, the arrangement is
structured to avoid mayoral dominance. The practical result
has varied. In 2007, advocates coalesced in opposition to
proposals before the Board to truncate minimum standards for
jails that the Board had established three decades earlier. The
proposed changes, proffered by the Department of Correction,
among other things would have reduced permitted cell sizes,
cut back contact visits, subjected inmates in need of protection
to twenty-three-hour lock-in status, and eliminated required
Spanish-language translation at all jails.
The proposals generated vociferous objection. Many of the
complaints centered on the Board’s reliance on the Department
of Correction, its apparent acquiescence to the administrative
demands of senior departmental leadership, and the majority’s
seeming indifference to outside opinion—no matter how expert.
The proposals would have made institutional life more difficult
for inmates and allowed the department to save money without
affording commensurate benefits. One group of experienced
prison overseers wrote that “the board has squandered its
independence . . . . An oversight body must not become part of

David Rohde, City Board Asks to Step in to Oversee Jail Health Care, N.Y.
TIMES, Nov. 21,1998, at B3.
16. See, e.g., Maurice Carroll, McGrath Quits, Jail Post; Says He Was
Not Ousted, N.Y. TIMES, Nov. 20, 1971, at A1.
17. N.Y. CITY CHARTER § 626(a).
18. Id.

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the political practicalities of the day.”19 In my testimony before
the Board, I was blunter:
When the watcher and the watched become too
close, when they share not simply common goals
but common activities, the oversight agency no
longer acts independently, and it fails in its
purpose . . . . With regret, I believe that your
proposals to revise the minimum standards
reflect your loss of independence and,
accordingly, your failure to fulfill the purpose for
which the board was created some [fifty] years
ago, and to follow the example created by the
board during the years in which it had its most
sustained impact on the Department of
Correction. Here, you give the appearance of a
behind-the-scenes
partnership
with
the
Department of Correction . . . .20
Facing severe public pressure, the Board rejected all but
two of the proposed amendments to the minimum standards.
Since the 2007 controversy, new board members, appointed by
the presiding justices of the Appellate Divisions, the City
Council, and the mayor himself, seem to offer a degree of
activism and a willingness to assert independence from the
Department of Correction.
While some correctional administrators may not welcome
the presence of outsiders, others concede the watchdog’s virtue.
According to Martin Horn, the New York City correction
commissioner at the time, “[t]he role of oversight” is “critical to
the operations of prisons and jails in democratic societies.”21
19. Michael B. Mushlin, John Horan, David Lenefsky, Madeline deLone,
John M. Brickman & Clay Hiles, Independent Oversight of N.Y. Jails, N.Y.
L.J.,
May
17,
2007,
at
2,
available
at
http://www.law.pace.edu/news/inTheNews/Mushlin%20op%20ed%20NYLJ.05
07.pdf..
20. John M. Brickman, Address before the New York City Board of
Correction
(Apr.
17,
2007),
available
at
www.nycjailreform.org/documents/CA/CA_Brickman.doc.
21. Clyde Haberman, NYC; Breaking the Chains of Inhumanity, N.Y.
TIMES, July 30, 2004, at B1. At the “Opening of a Closed World” conference,
Mr. Horn noted that prison oversight “makes you better” and moves the

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Yet challenge to oversight by civilians, whose primary
vocational interests are not in the corrections field, comes
easily.
So too do efforts by administrators to truncate
overseers’ access to facilities, the civilian agencies’ critical
right. For the Correctional Association, it happened as early as
184722 and has remained an issue into the twenty-first century.
In 2004, the Association sued the New York State Department
of Correctional Services to enjoin new restrictions on its
visitation rights.23
The value of civilian monitors to inmates and their families
is intuitively obvious, indeed axiomatic.
The New York
experience, however, demonstrates that civilian overseers also
bring benefits to prisons and their administrators.
For
example:




Citizen volunteers, who are often prominent
in their communities and active in
government, can influence legislators and
budget officials. These relationships provide
support for corrections administrators, who
might be well-advised to forego blanket
resistance to overseers’ calls for increased
budget allocations and enhanced programs.
Prison professionals can make these civilians
their allies in demanding a larger budget
share (or, in difficult economic times,
maintenance of existing appropriations).
Their status in the community places many
civilian monitors in favorable positions to
influence journalists, editorial writers, and
media outlets. At a time when correctional
administrators need all available assistance,
they can look to overseers to help make their
case to the public.

administrator toward fulfillment of an important goal, the need to be selfreflective.
22. See ILAN K. REICH, A CITIZEN CRUSADE FOR PRISON REFORM: THE
HISTORY OF THE CORRECTIONAL ASSOCIATION OF NEW YORK 13-14 (1994).
23. See Paul von Zielbauer, Prison Officials and Monitors are Headed for
a New Battle, N.Y. TIMES, Mar. 18, 2004, at B1; Haberman, supra note 21.

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







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With access to charitable and corporate
philanthropy, citizen volunteers can match
corrections personnel to sources of funds for
non-traditional or innovative activities that
are not feasible with governmental revenues.
Furthermore, citizens can facilitate financing
for demonstration projects that might later
receive public funding.24
Civilian overseers can provide “cover” to
administrators who wish to take steps that
may
be
unpopular
within
their
departments.25
Endorsements by oversight agencies give
“street
cred,”
or
helpful
external
endorsement, to good work by corrections
administrators and line-level professionals.26
The presence of the civilian overseer keeps
professional administrators at the top of their
game, to the collective benefit of the
government, staff, and inmates.

Each of the New York models offers advantages and
presents drawbacks.
The non-governmental organization,
exemplified by the Correctional Association, can maintain
24. In the years following its revival in 1970, the Board of Correction
won foundation grants for a variety of projects in city facilities. These
included a program that brought hundreds of volunteer clergy to visit jail
housing units, a program to provide prenatal services to pregnant inmates
(after the program demonstrated its effectiveness, the city administration
assumed the funding responsibility), a project that recruited volunteers to
teach literacy to inmates, and other activities otherwise unavailable for lack
of resources. See N.Y. CITY BD. OF CORR., ANNUAL REPORT (1972); N.Y. CITY
BD. OF CORR., ANNUAL REPORT (1973).
25. For example, in and after 2007, when the New York State
Department of Correctional Services sought to close institutions for
budgetary and other reasons, the support of the Correctional Association
helped overcome resistance by correctional staff unions protecting members’
jobs and municipal officials, who feared the impact of prison shutdowns on
local economies. See Nicholas Confessore, Spitzer Seeks Way to Find State
Prisons He Can Close, N.Y. TIMES, Feb. 5, 2007, at B1; Robert Gangi, Ease
State Budget Woes by Closing More Prisons, NEWSDAY, Nov. 12, 2009.
26. Administrators might welcome more of this praise: “Mr. [Martin]
Horn said it wouldn't kill monitors to throw more bouquets when they see
things going right.” Haberman, supra note 21.

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leadership that is less likely to change arbitrarily with
corresponding shifts in the political landscape.27
The
government body, such as the Board of Correction, is
susceptible to budgetary variations in lean times or because of
political disagreement with agency activities, with particular
risk when it challenges a jail administration that enjoys the
mayor’s favor. The not-for-profit organization, however, must
also sustain itself—similarly an issue in a downturn—and
must continually devote substantial resources and the
attention of senior personnel to development issues and
activities.28
The principal power of the Correctional Association is its
ability to visit and inspect the prison, return to the outside
world, and report its findings. Its authority, of course, has
been bolstered by its 166 years of activity and its credibility
among legislators, the media, the criminal justice system, and
broader communities. The Board of Correction also enjoys the
right to visit the jails, emerge, and report, but since 1977, its
principal power has been rooted in its standard-setting
function. Although dissatisfied mayoral administrations have
suggested abolishing the Board and hence vitiating this
authority, public pressure and resistance from the City Council
have thwarted these efforts.29 Moreover, the decentralized
appointment process has tempered, if not eliminated, the risk
of mayoral dominance. And perhaps precisely because when
the Board speaks it does so as an agency of government, its
challenges to the system seem more likely to be newsworthy
than the voice of a private, although venerable, organization.
To which model should a jurisdiction seeking to establish
or strengthen a correctional oversight function look? Each
27. Ironically, the incumbent Executive Director of the Correctional
Association has held the post since 1982, while there have been only four
executive directors of the Board of Correction since its revitalization in 1970;
the last has held the post since 1983. Neither job offers formal tenure or civil
service protection, but the point remains that the public employee position is
more likely to turn over frequently, the Board of Correction experience
notwithstanding.
28. The Correctional Association generates operating revenues from
foundations, private and corporate contributors, and government grants for
targeted programs. Since 2007, it has also enjoyed a significant endowment
that stems from its sale of a Manhattan building that it had owned and
occupied for some 120 years.
29. See, e.g., Clines, supra note 15; Mitchell, supra note 15.

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offers advantages and risks and there seems little reason to
favor one paradigm over the other. Either approach, or a
combination of both, will benefit the public good.
Werner von Heisenberg’s uncertainty principle, an axiom
of physics, teaches that the fact of observation will alter the
subatomic reaction being investigated. Watching something
affects its course. In facilities that confine people, the presence
of civilian overseers humanizes everyone—inmates and staff—
and makes the prison a better, more effective, and more
enlightened institution for all.

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