Days after the monitor who serves as the federal court's eyes and ears on Rikers Island issued a blistering report concluding that the Adams administration is "incapable" of reforming Rikers Island and documenting its efforts to obstruct the monitor's oversight, Judge Laura Taylor Swain issued a new order Tuesday, telling the Adams Administration it must stop obstructing and trying to spin the monitor's work.
"In light of the disturbing reports of defendants' recent behavior [in the monitor's report], the Court reminds the Commissioner of the Department of Correction and all Defendants that they must not interfere with, attempt to influence, or otherwise threaten the Monitor," Swain's order reads.
The order sets an aggressive schedule of deadlines for jails officials to address the concerns raised in the monitor's latest report, directing Department of Correction Commissioner Louis Molina and his leadership team to meet with her monitor by next Wednesday "to devise a plan that can be implemented immediately to ameliorate the unacceptable levels of harm in the New York City jails." Swain gives the Department of Correction until October 25 to do whatever it needs to do to start accurately reporting incidents of violence in City jails, a fundamental task at which, the monitor reported last week, the DOC is failing.
But Judge Swain's ability to compel the Adams administration to change simply by issuing more orders is not clear. After more than a year of issuing supplemental orders directing the City to comply with existing orders, the judge finds herself in the same position again. "Continued failure by the Commissioner, or by any defendant, to scrupulously comply with any of the Court’s Nunez Orders," she writes, "including this order, may result in additional orders or sanctions."
The bigger stakes, of course, lie not in whatever sanctions the judge might impose on DOC leadership for failing to respect federal court orders, but in the looming prospect that Swain might order Rikers and the entire jail system taken out of New York City control entirely, and entrust them to a court-appointed receiver better equipped and more committed to reducing violence in the jails. The Adams administration and the guards unions with which he is politically allied want to forestall this outcome, and Judge Swain has set a briefing schedule for arguments on the question with final papers due next February.
To make their best argument that the City is incapable of running its jails without unconstitutional levels of chronic violence, though, lawyers for people held on Rikers require evidence—evidence that in some instances City lawyers are fighting to keep from them.
Specifically, lawyers for people in custody want records related to guards' use of force against incarcerated people, related to deaths in custody, and other recorded incidents of violence and neglect. Lawyers for the City argue that these records should not be turned over because the DOC is still conducting its own investigations, and turning any related documents over could disclose law enforcement techniques, reveal confidential sources, or otherwise interfere with those investigations.
This concern for the sanctity of the investigative process is a bit rich, coming from a department whose very failure to properly investigate instances of violence is in part the subject of the court proceedings, and whose effective hobbling of its Investigations Division over the past two years has been thoroughly reported.
Case law says a government agency can't just claim its internal investigation is ongoing as a blanket justification for refusing to turn over documents, but the DOC has so far refused to offer a more specific justification. Meanwhile, many of the cases it claims are still under investigation are more than 120 days old, and therefore well outside the court-ordered deadline by which investigations must be resolved.
Whether Judge Swain will order the Department of Correction to turn over the records in question remains to be seen. Regardless, the struggle over evidence suggests that the City's legal strategy of delay and obstruction remains unchanged.
