The Marshall Project is a nonprofit newsroom covering the U.S. criminal justice system. Sign up for our newsletters to receive all of our stories and analysis. A guard working at a Hudson Valley prison pummeled a 19-year-old shackled by the legs to a restraint chair. An officer at a facility near the Canadian border denied food to a man in solitary confinement 13 times over a week. Outside Albany, a guard told a prisoner, “That’s how you get dumped on your fucking head,” then smashed his head into a wall. Each time, New York state officials fired the guards. Each time, they appealed. Each time, private arbitrators gave the officers their jobs back. Between 2010 and 2022, arbitrators reinstated three out of every four guards fired for abuse or covering it up, according to a review by The Marshall Project of 136 cases. The decisions the outside arbitrators wrote heavily favored prison guards, even in the face of strong evidence against them. Just two arbitrators handled about half of these cases, the review found. Arbitrators often dismissed prisoners’ testimony as unreliable and criticized the state for putting on weak cases, according to a review of disciplinary records. Among the cases in which arbitrators upheld the firings of officers, a majority came after coworkers contradicted the accused guard. In effect, arbitrators — typically private lawyers — can overrule personnel decisions made by the corrections department’s senior leadership, including the commissioner appointed by the governor. Former New York state corrections Commissioner Brian Fischer said arbitration is “a crazy system” that doesn’t benefit the public. “The employee should be terminated, the inmate should not be abused,” he said. “And yet we let it go on and on.” Current and former arbitrators say the system has a limited role: to protect a worker from a supervisor’s unfair decision, based on the evidence. “Those laws are not written to protect management,” said James Cooper, who decided New York prison guard cases for about 30 years. “Those laws are designed to protect the employees.” As The Marshall Project and The New York Times previously reported, the state almost never succeeds in firing guards. Experts say this helps sustain a culture of cover-ups among corrections officers who falsify reports and send beating victims to solitary confinement. Arbitration loosely resembles a trial. The prison agency investigates misconduct and presents evidence at a hearing, which can last days, to defend its decision to fire a staffer. The state and the guards’ union call officers, prisoners and experts as witnesses before the arbitrator, whose role resembles that of a judge. Both sides help select the arbitrator. Arbitrators typically make rulings based on the preponderance of the evidence — meaning the misconduct was more likely than not to have occurred. But in practice, The Marshall Project analysis found, they often didn’t fire guards unless there was overwhelming evidence. Nearly every abuse case in which a guard’s firing was upheld relied on the statements of coworkers, video or DNA evidence, according to the review. There was one exception, and in that case, eight prisoners testified against the officer. “Unfortunately, the department as a whole has been very comfortable with lying on reports for years,” said John Ginnitti, who spent 15 years as an internal investigator after 19 years as a prison guard. The rarity of firings sends the message to officers that misbehavior imposes little risk or cost. “Hey, this strategy works for us,” Ginnitti said. “Why would we change it?” In an email response to written questions, a spokesman for the corrections department wrote that the agency “does not speak for or represent disciplinary arbitrators, as they are independent third parties.” The prison guards union president said in a statement that while his organization takes reports of abuse seriously, it has a duty to defend members from any allegations. “Other than successfully defending our members a majority of the time in the cases cited, we have no influence over the decision the arbitrator makes,” said Chris Summers of the New York State Correctional Officers and Police Benevolent Association. “It is a system that is independent, fair and just.” The limited but growing number of body and wall cameras in many New York prisons means that video evidence was often unavailable in the cases reviewed. In its statement to The Marshall Project, the department pointed out that it has spent hundreds of millions in recent years installing more cameras in prisons and expanding its body camera program. Meanwhile, cracks in the blue wall are rare. Officers who report a colleague’s wrongdoing can face harassment and threats on the job. We Are Witnesses Intimate portraits of people who have been touched by the criminal justice systemCody Mackey was a trainee at Five Points prison in the Finger Lakes region in 2016 when he reported misconduct he said he witnessed, records show. A prisoner had thrown clear liquid at him and two other guards. Mackey went into a staff bathroom to remove his shirt as evidence and found one of the officers urinating on his own and the second guard’s uniforms — they were trying to frame the prisoner. Video captured the guards discussing the scheme, according to state records. Prison officials fired them. The guards appealed. Mackey’s testimony and a DNA analysis of the urine convinced the arbitrator to fire the guard who urinated and a sergeant who covered it up; the other officer was suspended for 9 months. By then, prison managers had removed Mackey from Five Points over concerns for his safety. He was transferred to another prison, where, on his first day, two correctional officers called him a rat to his face. Someone took to the public announcement system to say, “Things are going to be different here than at Five Points,” according to arbitration records. He resigned at the end of his shift. The prison department spokesman said employees who retaliate against staff for reporting wrongdoing are investigated and held accountable. Mackey said the FBI opened an investigation into additional threats made against him on Facebook and elsewhere. “I didn’t get union protection,” he said. “They’re protecting the bad COs.” Shortly after two guards said they used force to subdue a prisoner who attacked them at Wende prison, near Buffalo, in 2014, investigators received a complaint that the prisoner had been assaulted. In their reports, guards David Nixon and Richard Mazzola claimed that they punched the prisoner several times in the side and shoulder. But the man had a boot-shaped bruise on his back, and he said that officers had broken three of his teeth, according to arbitration records. The prison agency fired the guards, who appealed. When the case went before an arbitrator, doctors for both the union and the state testified that the prisoner’s wounds were consistent with a baton strike and a boot-heel stomp. The two guards testified that they used force to gain control of a prisoner who had attacked Mazzola. They stuck with what they wrote in their use of force reports, which did not account for the prisoner’s serious injuries. Arbitrator Samuel Butto ruled in 2016 that the officers were guilty of lying in their reports and that they deserved severe penalties. But he still reversed their firings, citing their excellent work histories. He ordered them back on the job after a 12-month suspension without pay. In an emailed response, Butto declined to discuss individual cases. “I have always approached each case with all its complexities objectively, and reviewed my decisions with great care to preserve or restore the rights of all concerned,” Butto wrote. Nixon did not respond to a request for comment; Mazzola declined. Acting as his own lawyer, the prisoner sued the guards for excessive use of force; in 2020, the state paid him $9,200 to settle the case. A good work history was one of the most common reasons arbitrators cited in reinstating fired officers. This held true even in cases where the state presented video or other strong evidence of mistreatment. In one case, video captured an officer threatening to “dump” a prisoner before slamming his head into a wall, according to arbitration records. The state argued that video evidence proved the guard used excessive force and needed to be fired. But the arbitrator, Timothy Taylor, was not convinced the head slam was intentional — it could have been an accident, he ruled. Despite Baldwin’s admitted history of falsifying reports, video of the assault and a coworker’s testimony, a state arbitrator felt the excessive use of force was unclear.
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