‘Something Can and Must Change’: The Long Process to Take Rikers Out of NYC’s Control Has Begun
Faced with ongoing constitutional violations, a federal judge Thursday scheduled arguments for putting NYC jails into receivership
1:58 PM EDT on August 11, 2023
New York City's jails, so rife with violence that their conditions have been acknowledged as a violation of the U.S. constitution for the better part of a decade, may finally be taken out of the City's control altogether. At a long-anticipated two-hour hearing on Thursday before a packed courtroom, a federal judge set a schedule for arguments on appointing a receiver to administer the jails, a dramatic and rarely employed step, but one that lawyers for people on Rikers say is warranted by City's failure over eight years to improve conditions. "People incarcerated at Rikers are at a grave risk of immediate harm," Judge Laura Taylor Swain said. "The court is deeply concerned about the safety and well being of every person held at Rikers Island, and all of those work there."
Lawyers for people being held on Rikers have been asking Swain to consider taking the jails out of New York City's control for more than a year, arguing that conditions in the jails are even worse than they were eight years ago, when the City entered into a consent decree to resolve a class action lawsuit brought by incarcerated people and joined by federal prosecutors for the Southern District of New York. But the administration of Mayor Eric Adams resisted these calls, arguing that the crisis on Rikers, years and decades in the making, would take a long time to resolve, and that Adams's jails commissioner, Louis Molina, was making good progress in turning the situation around.
Initially, the court appointed monitor, Steve Martin, who serves as the court's eyes and ears tracking the City's progress in making the jails safer, was willing to give Molina the benefit of the doubt, telling the judge last summer that the City should be given time to implement an "action plan" to improve conditions at Rikers.
Since that time, 20 people held in New York City jails have died, and Molina has undertaken a campaign to restrict the flow of information about what is happening on Rikers, cutting off independent access to security footage for the City's own jails watchdog and announcing that the Department of Correction would stop notifying the public when people die in custody. (The City's watchdog agency, the Board of Correction, announced Wednesday that it is taking the unusual step of suing the City and the Department of Correction to restore its unimpeded access to video evidence.)
Crucially, Molina also attempted to spin Martin and his team as they sought to fulfill their mandate to keep the federal court informed of progress, obstructing the monitor's access to information and providing him with information that was not true. In crossing the federal court monitor in this way, Molina and the Adams administration appear to have paved the way to the outcome they sought to avoid: a court takeover of the City's jail system and the appointment of a receiver empowered to radically rewrite the contracts of the guards unions that form a political power base for the mayor.
The tone of Martin's reports to the court changed markedly in June, when jail officials gave him the runaround as he sought information about five incidents of violence and serious injury that took place in the jails over the space of two weeks. In one instance, Molina's team told the monitor that Joshua Valles, a 31-year-old New Yorker awaiting trial on Rikers, had suffered a heart attack and died, and that "the Department does not suspect that any foul play occurred." As Hell Gate first reported, Valles was actually found to have a cracked skull and severe brain injury.
"The Department's approach to reform has recently become characterized by inaccuracies and a lack of transparency," the monitor wrote in June. "There are numerous situations in which only selective information is shared in response to a request that serves to blur the reality of the situation or to gloss over concerning facts."
The monitor's report clearly alarmed Judge Swain, who scheduled yesterday's hearing to decide whether to allow a motion to appoint a receiver.
In response. Molina and the Adams administration have carried on a hamfisted public relations campaign, questioning the monitor's motivation in the press, and, earlier this week, staging a photo-op for sympathetic city councilmembers who reported of their tour of Rikers, "it's a great atmosphere in there."
However effective the administration may have imagined these strategies would be in influencing the public, they only antagonized the monitor. At yesterday's hearing, Deputy Monitor Anna Friedberg made a point of itemizing a catalog of violence and mayhem on the Department's own records that took place on August 8, the day of the credulous councilmembers' visit. It included 29 reported incidents of use of force against people in custody; 12 fights; seven fires; two serious injuries outside of these other incidents; 10 incidents of self-harm or expressed intent to self-harm; two allegations of sexual misconduct by staff; and nine assaults on staff.
Friedberg described an inspection the monitor's team made of Rikers facilities the very day before the hearing, during which the team encountered people who said they'd been languishing in intake cells longer than jail staff had initially reported. In another facility, the team observed a group of men suspected to have taken part in a slashing and stabbing attack earlier sharing narcotics and in various states of incapacitation, unable to communicate.
"We simply cannot proceed the way we are going now," Friedberg concluded. "Something can and must change. The dynamic has to be different."
Molina, ordered by Swain to attend yesterday's hearing in person, made his usual appeal to be allowed to continue his stewardship of Rikers, somberly reading from prepared remarks to argue that while, by most metrics, violence on Rikers is even worse than it was when the City entered the consent decree eight years ago, it is at least better, in many respects, than it was at its very worst in 2021. He recited a litany of favorable statistics, selectively comparing calendar years in some instances and fiscal years in others.
"Since 2016, the concentration of individuals that are capable of violent acts has dramatically increased," Molina told the court, implying that the work of keeping Rikers safe has become more difficult in that time. Unacknowledged by Molina was the fact that while the concentration of people charged with serious crimes held on Rikers has increased significantly in that time, that's mostly because bail reform has dramatically reduced the total jail population by sending fewer people with minor charges to Rikers. That is, the share of people in custody facing violent charges has gone up because the number of people guards are responsible for supervising is down.
"The Adams administration has made progress that has been impactful at a breathtaking pace," Molina told the court. "No receiver will come into the New York City Department of Correction and induce greater reform at a faster pace than what we have accomplished and continue to accomplish every day."
Mary Lynn Werlwas, a lawyer with the Legal Aid Society representing people held on Rikers, told the court that the time for promises of change is long past. The bottom line, she said, is "There remains a pattern and practice of excessive force and violation of the claimants' constitutional rights to this very day."
The court, the monitor and all the parties to the consent decree have expended enormous energy in the process over the last eight years, but have very little to show for it, Werlwas said. The court has issued multiple new orders; the monitor has issued innumerable recommendations, and yet the Department of Correction has not fundamentally changed. "At its core," Werlwas said, "this is an agency in which the staff and supervisors are permitted to abdicate their basic correctional responsibilities with impunity."
Federal prosecutors, who only joined calls for receivership recently, agreed. "Simply put, the department is not fulfilling its core obligation to follow basic security protocols, ensure the safety of people in custody, and protect them and department staff from harm," said Assistant U.S. Attorney Jeffrey Powell. "The City has failed thus far to offer any novel strategies for fresh approaches to address the patently unsafe conditions in the jail. As we have heard more of the same thing that we have been hearing for the last several years."
Judge Swain was persuaded that the current state of affairs is unacceptable. But federal law makes it very difficult for judges to order the takeover of a jail system. A Clinton-era law designed to reduce court's ability to interfere in jails and prisons, the Prison Litigation Reform Act, requires judges to make sure that the actions they take to fix conditions in a jail "extend no further than necessary to correct the violation of the federal right of a particular plaintiff or plaintiffs," that that action must be "narrowly drawn" and extend "no further than necessary to correct the violation of the federal right” and that it must be 'the least intrusive means necessary to correct the violation."
Federal prosecutors and lawyers for people locked on Rikers feel they can clear this bar—the court has been trying to end the mass constitutional violation of New York City jails for eight years using less intrusive measures than a monitor, and it hasn't worked. But it will be well into 2024 before Swain will decide if she is persuaded: The plaintiff's arguments for receivership are due November 17. The City's counterargument is due January 16, and the plaintiff's reply is due February 15. Depending on how those filing shape up, the judge may decide to schedule evidentiary hearings to establish the necessity of a receivership.
In the meantime, Swain said, she expects Molina and the Adams administration to redouble their efforts to address the crisis on Rikers. "Rapid improvement of the day to day results of these efforts is expected," she said. "The monitoring team will be watching, I will be watching, and the people of the city and the press will be watching. The loved ones of those who live and those who work in the jails will be watching with justifiable expectation."
If recent months and years are any indication, however, expectations of the Department of Correction's willingness and ability to undertake dramatic reforms should be tempered. In the months between now and when the judge finally rules on receivership, the violence and constitutional violations on Rikers are likely to continue, and more people are likely to die.
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