New York Prisoner Gets Five Years in Solitary for Cell Phone Smuggled in by Guard

Philip Miller was midway through a twenty-year sentence for robbery at Sing Sing Prison in New York, with an almost spotless prison record, when he was caught with a mobile phone in his cell in April 2010. He was charged with two disciplinary violations: “possession of contraband” and also “altering state property,” since he had hidden the cell phone and charger in “a compartment carved out of the windowsill.”

Miller was brought before an internal prison disciplinary hearing and pled guilty to the two charges. But he sought to call various inmates who could attest to his good behavior and to describe what actually had happened. The hearing officer denied him his request, claiming that he, the prison officer, knew all about Miller and it wasn’t necessary to call the witnesses. Miller was found guilty of both charges and sentenced to 60 months—five years—in solitary, with a proviso that 24 months might be suspended if he incurred no further disciplinary charges. Despite the nonviolent nature of his offenses, Miller was shipped off to serve his time at Southport, the all-solitary supermax facility south of Elmira.

Long stretches in the so-called Special Housing Unit (“the SHU” or, more commonly, “the box”) is an everyday punishment in New York State prisons. Currently, about 4,500 inmates are serving time in some form of 23-hour-a-day lockdown, with sentences ranging from months to decades. As we wrote in an earlier article, New York leads the nation in the use of “disciplinary segregation,” and isolation “is very much a punishment of first resort, doled out for minor rule violations as well as major offenses. In New York, the most common reason for a stint in solitary is creating a ‘disturbance’ or ‘demonstration.’…Second is ‘dirty urine’—testing positive for drugs of any kind…Other infractions include refusing to obey orders, ‘interfering with employees,’ being ‘out of place’ and possession of contraband—not only a shiv but a joint, a cellphone or too many postage stamps.”

Miller appealed his conviction and sentence within the prison system, insisting that he had been denied his right to have witnesses testify on his behalf. He lost. He then went to state court and lost there. Finally, he took his case to the state court’s appellate division where the decision against him, handed down in August 2012, contained this rather incoherent passage:

Petitioner’s claim that he was improperly denied the right to call character witnesses to mitigate the penalty to be imposed as a result of his guilty plea is also unavailing. Petitioner’s witnesses would have testified about his positive prison record, which was known to the Hearing Officer and considered in the disposition of this matter. Since the Hearing Officer considered petitioner’s character before imposing the penalty, the testimony of the witnesses would have been redundant and, therefore, properly excluded.

Out of the panel of five judges in the appellate court, four of them upheld the lower court’s decision unreservedly. The fifth, Judge J. Garry, “concurred in part and dissented in part.” In his opinion, Judge Garry wrote: “While I do not disagree with the resolution of petitioner’s constitutional and evidentiary challenges, I cannot countenance the penalty imposed, i.e., confinement for 60 months in the special housing unit (hereinafter SHU), with 24 months suspended. The severity of this penalty is disproportionate to the offense.”

In explaining why the punishment was excessive, Judge Garry pointed to prisoners charged with violent offenses who had in fact received shorter sentences in the box. He also revealed another aspect of the case: Philip Miller had not, in fact, had the cell phone smuggled into prison for him. He had bought it from another prisoner, who had in turn bought it from a guard.

In explaining the penalty, the Hearing Officer stated…that the penalty was intended to deter petitioner and others from similar conduct in the future. However, he further stated that the penalty was justified by “the sophistication of this scheme to smuggle a cell phone into this facility. This aspect of the penalty is unsupported by the record, as petitioner was not found guilty of smuggling or conspiring to smuggle cell phones into the prison. The primary participants in the scheme were a correction officer who brought contraband into the facility and certain inmates who received the contraband and resold it to other inmates. The evidence did not reveal that petitioner was one of these participants, rather than a mere purchaser who acquired the cell phone from one of them, and thereafter concealed it, nor did the evidence reveal use of this phone to facilitate the smuggling.

The corrections officer in question was 12-year veteran Leon Strand. According to information provided upon request by the New York State Department of Corrections and Community Supervision’s Office of Public Information, Strand was “arrested on felony dangerous contraband charges by the New York State Police on May 21, 2010.” The following day, Strand was suspended without pay, and he “resigned from his Correction Officer position while facing DOCCS disciplinary charges.” The Public Information Office also reported that “on November 23, 2010, Strand pleaded guilty to Promoting Prison Contraband,” but was not aware what sentence he had received. Records show that Strand never served any time in the New York State prison system, and as far as we can ascertain, never did any jail time, either.

Philip Miller remains in solitary confinement at Southport. According to the DOCCS Public Information Office, he received an additional small reduction in his sentence for good behavior, and is now eligible to return to the general population on January 27, 2013, after serving 32 months and 16 days in the SHU.

Sarah Kerr of the Legal Aid Society’s Prisoners Rights Project brought Miller’s case to our attention, and commented on it in an email:

That Philip Miller was sentenced to five years in solitary confinement for possessing a cell phone introduced to the prison by a member of DOCCS Correction staff demonstrates the need for time limits on the use of solitary confinement in our prisons. Although 24 months of the sentence were suspended, even 36 months is an excessive, harsh and inhumane sentence. Moreover, Mr. Miller will have to endure 3 years of the harsh conditions in isolation without breaking any more prison rules to guarantee that the suspended 24 months are not invoked by DOCCS. As noted by the dissent of Judge Garry, this penalty is disproportionate to the offense and shockingly unfair.

As Kerr points out, the appeals court “had an opportunity to remit the case for reconsideration of the penalty, and its failure to do so suggests that legislative limitations on New York’s ability to impose sentences of solitary confinement are required to end its excessive and inhumane overuse in our State’s prisons.”