Suing Mario Cuomo

The death of Mario Cuomo reminded me that I met Governor Cuomo and talked to him only once. I also sued him only once.

I met him at a fund raiser during his last campaign for governor in 1994. I praised him for his opposition to the death penalty. I mentioned that Sister Helen Prejean (the author of "Dead Man Walking" and a stern opponent of the death penalty) was a client of mine. He said to me "Why does a nun need a lawyer?" I told him I represented her on the movie deal for her book. I also told him. "You're right. Nuns don't need lawyers, but lawyers often need a nun to guide them."

I did not mention that I had sued him (successfully) ten years before.

Cuomo first ran for governor in 1982. He was opposed by Mayor Ed Koch of New York City. While Cuomo was campaigning on Long Island, some constituents told him about a serious local problem that they were facing.

In the early 1980's, the prison population in New York had expanded as a result of the Rockefeller drug laws and the major drive to increase prison sentences. In June, 1982, the New York State correctional system was filled to 114% of capacity. Then Governor Carey looked around to see how to solve the problem. The Pilgrim State Psychiatric Center in West Brentwood, New York had been cleared of all mental patients - largely as a result of the effort to treat such patients with drugs and release them to their homes, .Carey immediately converted the psychiatric center into a medium security prison -- the Long Island Correctional Facility at Brentwood -- and in June, 1982, sent about 600 prisoners from overcrowded penitentiaries upstate to the new facility.'

But the local population was very unhappy about the prospect of a medium security prison being established so close to their homes (They were apparently not concerned about the hundreds of mental patients that formerly lived in the facility). Cuomo apparently thought that opposing the prison was politically advantageous. He made a campaign promise that if he was elected, he would close Brentwood.

Cuomo was elected in 1982 and began to serve in January 1983. Immediately local pressure was put on him to fulfill his campaign promises. His correctional officials began to plan for closing the prison. One new prison was prepared upstate and another facility was greatly expanded with temporary housing.

But the local prisoners actually liked the Long Island facility. It was larger than the upstate prisons, not overcrowded, and the individual cells were more comfortable than the places where they would be sent. More important, the prison was close to New York City where many of their friends and family lived. That close proximity made it easier for them to receive visitors. Oddly enough, the correction officers also liked the new prison. They also lived close by and disliked the prospect of moving to remote, colder parts of the State.

Finally, in September 1984, Cuomo announced that he was going to fulfill his promise and immediately close the prison. Both the local correction officers and the prisoners panicked. The correction officers brought a law suit in state court claiming that they would face hazardous conditions upstate. They lost.

A group of prisoners, led by one Theodore Mitchell, brought a pro se action in federal court in Uniondale, claiming that the prisoners would face cruel and unusual punishment if they were sent to already overcrowded prisons upstate. The local federal judge, Frank X. Altimari, appointed me to represent the prisoners. (I was teaching constitutional law at Hofstra Law School, and the local federal court was actually located on Hofstra's campus. I had met the judge at various seminars sponsored by the Federal Judicial Center).

The federal judge ordered an immediate hearing on whether to stop the closing. I called the union leader of the correction officers and told him I wanted officers from all of the upstate medium facilities to come to testify about what would happen if Brentwood were closed and 50 or 100 prisoners were sent to each upstate medium prison. We gathered a group of them before the hearing. I suggested that they might compare the situation to what would happen if a lifeboat was filled to capacity and suddenly ten more people were forced on board. Of course, the boat would sink.

The hearing took place at the end of September, 1984. The upstate officers told about the terrible conditions that the prisoners would face upstate in the already overcrowded system. The lifeboat analogy was used again and again. The State put on witnesses that said that new "temporary housing" could alleviate the situation. But previously the state officials running the prison system had complained about the inadequacy of the "temporary housing."

On October 1, 1984. Judge Altimari issued an order prohibiting the governor from closing the facility. He described that situation that the Brentwood prisoners would face:

... a substantial number of inmates [would be] housed in 'temporary housing' which was never designed to house inmates, and that healthy and/or non-disruptive inmates [were] housed in the infirmaries or medical units . . . Prison guards and commissioners testified that infirmaries, program rooms, recreation rooms, storage and locker areas, and even a chapel had been converted to inmate housing units. Further, Commissioner Coughlin admitted in a March 1984 affidavit that DOCS then used 3,652 beds classified as temporary housing and stated that "[t]his housing provides insufficient living space and is substandard with regard to showers, toilets, food service, etc. Mitchell v. Cuomo, 748 F.2d 804 (2d Cir. 1984).

He added:

[There is] ample evidence which points to an increase in the level of tension and the number of fights or incidents of violence caused by the overcrowding and the "idle time" of inmates with no assigned work. Commissioner Coughlin stated in a September 1983 affidavit that the extended use of temporary housing capacity was "unacceptable in that it significantly heighten[ed] the possibility of inmate disturbance", and in March 1984 he "attribut[ed] the riot at the Ossining Correctional Facility in January of 1983 directly to the pressures which overcrowding places on the housing and program resources of the system and on the persons who live and work in our facilities." Mitchell v. Cuomo, 748 F.2d 804 (2d Cir. 1984)

Governor Cuomo was very unhappy about Judge Altimari's decision. "We believe that the Federal Court had overstepped his authority. [This is] just the first round." The State immediately appealed to the Second Circuit Court of Appeals. But the Governor lost the second round as well. The Court of Appeals court affirmed Judge Altimari's injunction. That court noted:

The district judge found irreparable harm arising from the facts that without injunctive relief, plaintiffs would be transferred into an already overcrowded system and the LICF would be permanently closed. . . . .the irreparable harm he found arose from the possible deprivation of eighth amendment rights that plaintiffs contend will follow from implementation of the plan. " . . . Given the evidence of increasing overcrowding in the state system and its potentially dangerous consequences, which constitute the alleged threat to plaintiffs' eighth amendment rights, the district judge's finding of irreparable harm is not clearly erroneous. Mitchell v. Cuomo

The governor was furious. He told his associates, well I can't close the place, but I can refuse to send any new prisoners there. Over the next six months, the prison population in the facility was reduced by about 200 to less than 300 prisoners. It was getting to the point where each prisoner would be guarded by one correction officer.

The judge saw that some new steps had to be taken. He urged the parties to come to some settlement. I went to the prison and spoke to the remaining prisoners. Their chief concern was distance: they wanted to be as close to New York City as possible, so their families could visit them. There was another medium correctional prison on Staten Island, the Arthur Kill Correctional Facility which could house 900 prisoners. I urged the State to transfer most of the remaining prisoners to Arthur Kill and a few more to Taconic and Otisville facilities, close to the City.

The State agreed. Brentwood was closed in April, 1985 and the remaining prisoners went to their new homes close by.

I then petitioned for attorneys' fees. Under the Civil Rights Attorneys Fees Award Act, lawyers representing plaintiffs in civil rights cases are entitled to have the losing party pay their fees. The State objected. "You lost," their lawyers said. "The prison was closed." I answered:
"I wasn't representing the prison, I was representing the prisoners. And the prisoners enjoyed months of continued life in Brentwood, rather than crowded prisons upstate."

The judge awarded our legal team our fees.


Leon Friedman is a Professor of Constitutional Law at the Maurice A. Deane School of Law at Hofstra.