Attorney General James Forces Erie County Sheriff to Address Rampant Sexual Misconduct in Correctional Facilities

Sheriff’s Office Required to Take Several Measures to Timely Report and Appropriately
Investigate Allegations of Correction Officers Engaging in Sexual Misconduct

NEW YORK – New York Attorney General Letitia James today announced an agreement negotiated by her office to force the Erie County Sheriff’s Department to follow mandated procedures to timely and effectively address allegations of sexual misconduct between correction officers and incarcerated individuals at the Erie County Holding Center and the Erie County Correctional Facility. The agreement resolves a March 2021 lawsuit filed by Attorney General James on behalf of the New York State Commission of Correction (SCOC) against Erie County and Erie County Sheriff Timothy Howard.

The lawsuit identifies several instances when Sheriff Howard refused to comply with directives requiring his office to timely report allegations of sexual misconduct in the facilities to the SCOC, and, in many cases, doing so only after the allegations surfaced in media reports. Attorney General James also found that the Erie County Sheriff’s Office conducted insufficient investigations into several of the incidents by neglecting to interview witnesses, evaluate all available evidence, or refer the matters for criminal investigation.

“The Erie County Sheriff’s Office must finally confront the harsh realities of its correctional facilities and take real measures to end the widespread sexual misconduct perpetrated by its correction officers,” said Attorney General James. “The policies that the sheriff’s office will now be required to put in place will go far in preventing the misconduct that jeopardized the safety and wellbeing of incarcerated individuals for far too long. New Yorkers deserve transparency, accountability, and honesty from their law enforcement agencies, and this agreement ensures that they get it.”

“For too long, the Erie County Sheriff’s Office has ignored its responsibilities and dismissed the Commission’s findings and oversight,” said Commission of Correction Chairman Allen Riley. “As part of this settlement, the Sheriff finally comes clean and admits his failure to comply with regulations that are designed to protect the safety of individuals in custody, facility staff and the community. It also provides the Commission with additional resources to hold the agency accountable going forward, including the appointment of an independent monitor to review policies, audit of prior incident reporting and submit an annual audit report with the Commission detailing findings. I thank Attorney General James for her team’s willingness to partner with us to address the Sheriff’s Office flagrant disregard for its obligations to operate a facility that is safe and stable and treats those incarcerated with dignity and respect.”

New York state has a zero-tolerance policy for sexual offenses committed against any incarcerated individual. State law deems incarcerated individuals as “incapable of consent” to sexual conduct with facility employees, and subjects guards to criminal liability for such conduct. Any sexual contact between a guard and an incarcerated person is deemed non-consensual under state law, due to the inherent power discrepancy between guards and incarcerated individuals. Accordingly, the SCOC’s guidelines and regulations require local correctional facilities to promptly report serious incidents, including any degree of rape, sexual abuse, or sexual misconduct.   

The SCOC maintains regulations and guidelines requiring the timely and adequate reporting of sexual misconduct allegations in correctional facilities to the agency. After the sheriff’s office failed to timely report serious incidents — such as an erroneous release, an assault, and multiple suicide attempts in Erie County facilities — the SCOC issued specific directives, in May 2017, for the county to promptly report serious incidents, or otherwise face a regulatory proceeding in state court. New York codes, rules, and regulations, as well as the SCOC’s guidelines, require the sheriff’s office to report alleged sex offenses to the SCOC within 24 hours of occurrence or discovery of the incident. Despite this, the Office of the Attorney General found that the sheriff’s office went months or years between discovery of an incident and reporting it to the SCOC.

The agreement, which was submitted to the Erie County Supreme Court for review, stipulates that the county and sheriff’s office must take measures to timely report and appropriately investigate allegations of correction officers engaging in sexual misconduct, including:

• Forcing the sheriff’s office to uphold the SCOC’s regulations;
• Directing the sheriff’s office and the county to appoint an independent monitor to conduct a retrospective audit of incident reporting, and provide an annual audit for the next three years;
• Directing the sheriff’s office to provide the SCOC with proof of training for correction officers related to New York’s zero-tolerance policy regarding sexual misconduct in correctional facilities, how to handle situations where incarcerated individuals allege sexual misconduct, and the SCOC guidelines for reporting such misconduct;
• Directing the sheriff’s office to provide specialized training for investigators and other appropriate staff regarding investigating sexual abuse in correctional settings; and
• Developing and/or revising procedures related to the review, investigation, and assessment of reportable incidents, and to work with the SCOC to develop and improve upon existing policies and procedures.

This case is being handled by Assistant Attorney General Lindsay McKenzie of the Civil Rights Bureau and Assistant Attorney General Lois Saldana of the Executive Division, under the supervision of Civil Rights Bureau Chief Jessica Clarke. The Civil Rights Bureau is a part of the Division of Social Justice, led by Chief Deputy Attorney General Meghan Faux and is under the oversight of First Deputy Attorney General Jennifer Levy.