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Locked Up

Why 18 Deaths in Custody This Year Isn’t Enough to Take Control of Jails Away From NYC

"Change has to come from the inside," the NYC Correction commissioner told a federal court Thursday.

12:37 PM EST on November 18, 2022

(Michael Appleton / Mayoral Photography Office)

Back in May of this year, six people had already died in the custody of New York City jails, and violence on Rikers Island was, by some metrics, considerably worse even than it had been six years earlier, when the City first entered a consent decree to resolve a lawsuit in which the U.S. Attorney for the Southern District of New York called Rikers “more inspired by Lord of the Flies than any legitimate philosophy of humane detention.” 

Lawyers for the people held in these conditions on Rikers asked the judge presiding over the consent decree, Judge Laura Taylor Swain, for permission to present evidence that New York City was in contempt of her court’s order to stop violating their rights, and that the jail complex should be taken out of city control and transferred to a court-empowered authority called a receiver. Swain refused to hear these arguments, saying at the time that the administration of Mayor Eric Adams needed more time to try its hand at improving conditions.

Over the next six months, the death count in city jails for the year tripled to 18. On Thursday, appearing before Judge Swain for the first time since May, lawyers for the people held on Rikers asked once again for permission to submit evidence that New York City is either incapable or unwilling to respect the constitutional rights of the people it locks up in its jails. Once again, Swain’s answer was the same: The Adams administration deserves more time to see if it can make things better. If they like, she said, the people dying and having their constitutional rights violated in New York City jails can ask her again at the next court hearing, in five months.

Judge Swain has strong legal grounding for her position. In 1997, frustrated that jails and prisons were increasingly being put under injunction and forced to reform after federal courts found them to be violating people’s constitutional rights, Congress passed the Prison Litigation Reform Act, which made it much more difficult for courts to interfere in the operation of jails and prisons. Under the act, a judge "shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right."

Just what constitutes the "least intrusive means necessary" is a blurry target, especially when a local authority eager to wriggle out of federal oversight is prepared to promise that it has changed, that this time will be different, that it is ready to start laying the foundations for the plans for the beginnings of some changes that could be very promising.

Proving nothing else can work is a high bar, and it’s one that attorneys for the Legal Aid Society of New York, who represent the plaintiff class in the case, haven’t met, argued Kimberly Joyce of the New York City Law Department. Receivership is supposed to be a last resort, when there are no alternative remedies, she said, noting that it took 22 years of inaction and contempt in another case before a court determined receivership was appropriate. Six years into court oversight of Rikers, seeking a receivership is precipitous, she said.
Correction Commissioner Louis Molina addressed the court himself, blaming conditions on Rikers on the previous administration, and saying he has the situation in hand. "Transitioning responsibility to a third party will not solve the issues, your honor," he told Judge Swain. "I will.”

The Department of Correction is making big moves, Molina said. He has hired a lot of new senior officials, many of them with substantial experience in corrections. Just recently, he said, DOC had started staffing deputy wardens to supervise guards 24 hours a day, seven days a week. (Previously, deputy wardens were only on site weekdays until 3 p.m.) Acknowledging the profusion of suicides on Rikers, Molina said the department is "hiring a consultant to address self-harm prevention."

Mary Lynne Werlwas of the Legal Aid Society argued that appointing a receiver wouldn’t do anything to set back what progress DOC may be making. "This view of a receiver as upsetting the apple cart or restarting the clock is not rooted in what receivership actually means," she said. A receiver would add to that progress, cutting through political, bureaucratic, and even legal obstacles.

What’s a receiver going to do that the Adams administration isn’t already doing? the judge asked.

Lots of things, Werlwas responded. To take one, as evidence of its improvement, the City has pointed to its acceleration in resolving disciplinary cases, the enormous backlog of which had rendered accountability for guards largely meaningless. But a closer look at that supposed improvement shows it to be largely hollow: "An astonishing number of disciplinary matters” are being referred back down to the leadership of individual jail facilities for investigation, she said. Indeed, nearly half of use-of force incidents have resulted in a referral back to the facility where the alleged infraction transpired in the first place. And what happens to the cases there? "What you’d expect," Werlwas said. "Discipline cases are being abandoned."

In serious disciplinary cases, staff are subject to command discipline, but the monitor’s most recent report found that more than a third of those disciplinary cases were dismissed, 70 percent of those dismissals not on the merits of the case, but simply because of paperwork screw-ups or foot-dragging. "It is this 70 percent of dismissals that are of concern to the Monitoring Team because they signal a lack of proper management of an essential accountability tool," the report noted.

The point, Werlwas said, is that staff accountability, identified by the court’s own monitor as one of the major failures driving the rolling crisis of Rikers, is "ultimately tied up in politics." (Werlwas did not specifically name the powerful guards’ unions, but her implication was clear.) 

"Having a structure independent of these vagaries," she said, is the only way to cut through the politics and make real change. 

Faced with the plaintiff’s demand for receivership, the Adams administration this month finally gave ground on one of the monitor’s longstanding recommendations that it had been fighting for the first eleven months of the Adams mayoralty: It agreed to hire facility managers, formerly known as wardens, from outside the current uniformed ranks, a move opposed by the guards’ unions. Doing so requires the court to order it, superseding a host of state and city laws using the same power that a federal receiver might use, and requires the City to formally admit that it has tried everything else and nothing short of this action can keep its jails from continuing to violate the rights of the people it locks up.

Even this concession is a half-measure. While the city gave ground on opening up Warden slots to outsiders, it still refuses to do so for Deputy Wardens, whom the Monitor has also singled out for failing to end the culture of violence at Rikers. Why one and not the other? One possibility: Wardens are not unionized, and have no meaningful political pull in city government. Deputy wardens and assistant deputy wardens are, and they do.

"There is no correctional reason not to include [deputy wardens and] assistant deputy wardens," Debra Greenberger, another lawyer for the plaintiffs, told the judge Thursday. “It’s a political reason.”

Why not include deputy and assistant deputy wardens? the judge asked the City’s lawyers. "We don’t need to," Joyce answered. 

"Change has to come from the inside," Molina chimed in. "We do have talent among Assistant Deputy Wardens that has to be nurtured."

Swain took a brief period of silence to consider the arguments, then read her ruling from a prepared statement. "This court remains deeply concerned" about conditions in New York City jails, she said, but "there are indications of progress that the court does not see fit to impede or complicate at this time."

Throughout the two-hour proceeding Thursday, seven women had been watching silently in benches on the right side of the gallery. They were the mother, sisters, and aunts of Eric Tavira, who was found dead in his cell on a mental health observation unit on Rikers last month with a rope around his neck. DOC officials had bounced Tavira, who lived with schizophrenia and bipolar disorder, through 20 housing assignments over 16 months. The guard who was required to look in on Tavira every fifteen minutes hadn’t checked on him for an hour. The family buried Eric last weekend.

"Stay safe," Judge Swain bid the courtroom as she concluded the hearing. She acknowledged the Tavira family, telling them she was very sorry for their loss. The work being done in this courtroom, she tried to explain, was for them, or rather, "for other families."

If the present rate of death in New York City jails continues, by the time Swain next takes up the case at the end of April, eight more families may join Tavira's in the gallery.

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