A Federal Judge Allows the Fatal, Dickensian Farce on Rikers Island to Continue
At the latest hearing, the federal judge overseeing violence reduction efforts on Rikers once again declined to take the jails out of NYC control
12:58 PM EDT on April 28, 2023
A federal court hearing yesterday confirmed that, despite the hopes of jail reformers for a federal takeover to improve conditions on Rikers Island, the court is in no hurry to exercise its power.
Twelve years ago, the federal government decided that violence in the jails where the people of New York City keep their fellows awaiting trial was so bad that it violated the founding tenets of the U.S. Constitution. The Justice Department, along with people held on Rikers, sued New York City in Federal court, and nearly eight years ago the lawsuit produced a consent judgment: The City agreed to take specific steps to make Rikers less violent, and the court appointed a monitor to keep track of their progress.
Since then, things have gotten worse, despite—or perhaps partly due to—the fact that Rikers has a ratio of staff to incarcerated people many times higher than the national average. The consent judgment of 2015 "did not anticipate the depth of dysfunction in staffing and basic security operations in the jails," the monitor wrote in an April 3 report. "Thus, the reforms required by that document presupposed a foundational layer that did not, in fact, exist."
But if you thought that the ongoing operation of an unconstitutional dungeon on American soil would light an urgent fire of judicial action to rectify the situation, you would be mistaken. Judge Laura Taylor Swain still holds hearings a few times a year to hear from the parties. Her monitor, Steve Martin, continues to file voluminous reports documenting the ongoing deficiencies and horrors of the jail system. The cycle repeats, year after year, as the bodies pile up. Last year alone, 19 people died in the custody of NYC jails. Another died in February. The reasons why—deliberate opacity, entrenched culture, concentrated political power hostile to reforms—are not secret.
Lawyers for the people held on Rikers have been pressing for the court to do more than schedule the odd hearing. They want Swain to take the jail out of New York City's control and appoint a federal receiver to run it.
New York City mayor Eric Adams does not want this. He is closely allied with politically powerful guards unions, which do not want to close Rikers, do not appreciate outsiders coming in to tell them to change their longstanding way of doing things, and especially do not want a federal takeover by a receiver not politically beholden to them and who is empowered to unilaterally negate the provisions of their contracts that make fixing Rikers so difficult.
The Adams administration has been fighting tooth and nail to avoid receivership, assuring Judge Swain that they are busy laying the foundations for change that will one day mean the jails aren't unconstitutionally unsafe, and they just need a bit more time. Judge Swain has been entirely content to give them more time.
Yesterday's hearing, held high above the city on the 17th floor of the federal courthouse on Pearl Street, set a new low point for the court's inertia.
Martin, the court monitor, attempts to wield the carrot and the stick in his reports, leavening the litany of skull fractures, intransigent staff, and official noncooperation with smatterings of praise for elementary gestures of compliance, and allowances of cause for "cautious optimism" that perhaps the Department of Correction may someday improve conditions in its jails. The tactic makes for peculiar reading, and in court yesterday, Martin acknowledged the ongoing ambivalence of his reports, invoking Dickens: "It was the best of times, it was the worst of times."
But on Rikers, it is in no conceivable sense "the best of times." The more apt Dickens reference would be to Jarndyce and Jarndyce, the interminable legal proceeding in Bleak House that occupies courts and lawyers for generations and produces no outcome of any value to anybody.
Martin's manner, courtly and ponderously slow, does not help to set a tone of urgency. He opened his remarks yesterday with several minutes of thorough and gracious thanks to his staff, one of whom is soon to leave for a new job after seven long years unsuccessfully bringing Rikers into compliance with the United States Constitution.
Lawyers for the people locked on Rikers attempted to break through the courtroom's languor. "We have heard a great deal today about grounds for cautious optimism," Kayla Simpson of the Legal Aid Society told Judge Swain. "We do not think the record justifies that optimism. It is a grim conclusion, but we think there can be no other: The remedial process has not worked."
Guards reported 7,005 "use of force incidents" last year, Simpson said. The proportion of those incidents resulting in serious injury was three times higher than it was in 2016. The monitor is calling the rate of slashings and stabbings on the island as "exorbitant."
"These would have been simply unfathomable numbers when the Consent Judgment was entered—they are frankly unfathomable now. What are considered major events in other systems are routine incidents in this City."
Meanwhile, the Department of Correction still won't do the one thing everyone knows would make a difference: stop staffing the middle and ranks of jail management with people already chronically infected with Rikers culture of brutality and neglect. Nearly half of the 26 people DOC Commissioner Louis Molina recently elevated to Assistant Deputy Warden were "not recommended" for promotion by divisions within his own department, Simpson said.
Some of these examples are particularly egregious. The Daily News reported that Molina promoted a guard sued for assaulting Khalief Browder on video while Browder was handcuffed to head the notoriously "hyper-confrontational" turtle-armored Emergency Services Unit. After the news broke, and as the monitor's report criticizing the ESU neared publication, Molina quickly gave the job to someone else and claimed he never gave the job to Vaughn in the first place. Losing a position in the ESU over a history of brutality isn't always forever, though. In 2021, the monitor insisted that DOC force guards with histories of gratuitous violence out of the ESU. In his most recent report, Martin notes that not only has Molina continued to staff ESU with guards who have documented histories of brutality, but early this year he quietly brought 16 of the guards Martin had made him remove back onto the team.
Meanwhile, the monitor's report also notes that the Adams administration has gutted the office in charge of investigating misconduct among jail staff. One of Molina's first acts was to fire Sarena Townsend as Deputy Commissioner for Investigations, Intelligence and Trials, after she says she rejected his pressure to make thousands of outstanding misconduct cases go away. In the ensuing months, investigators left their jobs in droves.
Last summer, Molina hired a new head of investigations, Manuel Hernandez, who happened to be his former squad commander when Molina was in the NYPD. Soon after, the monitoring team began to notice that something was very wrong. Under Hernandez, "staff had been influenced or prompted, either overtly or implicitly, to adopt a more lenient approach when assessing cases and to change their practice in ways that compromised the quality of the investigations." Under pressure from the monitor, Molina finally fired Hernandez. But the damage has been done. Investigations have been so thoroughly sabotaged under Molina that Martin says hundreds of disciplinary cases may need to be "revisited and perhaps reinvestigated."
Jail officials and their lawyers waved all these alarms off yesterday. It's not fair to compare Rikers today to Rikers eight years ago, Alan Scheiner of the NYC Law Department told the court, because the world is different now: There is a "general societal rise in mental illness"; COVID happened; bail reform means that fewer people who aren't actually a threat to others are locked up. "The simplistic approach that just because something is worse in the jails, it must be our fault," doesn't hold up, he said.
Nor are statistics to be taken at face value. "The sheer numbers don't really tell you the whole story," he cautioned. People get hurt for many different reasons, he said. Some may be hurt because inappropriate force was used, but "sometimes people get hurt because appropriate force was used."
It doesn't make sense to actually order jail officials to do the things the monitor is telling them to do, Scheiner said, because the arguments over the precise language of that order would distract jail officials from trying to do what the monitor is telling them to do.
Scheiner told the judge that DOC had recently begun distributing tablet computers to try to avoid violence brought on by idleness among incarcerated people. This was a strange framing of the facts. DOC has actually had a tablet program for years, though it canceled its previous contract with a tablet provider before switching to a new provider.
It's good to promote from within the existing culture of Rikers, Scheiner insisted, because of "the need to motivate people" and "the need to meet the expectations" of promotion among the current cadre of guards.
Having heard all this, Judge Swain agreed that the best thing for her to do about Rikers for the moment is nothing much.
"I find it neither necessary nor prudent," the judge concluded at the end of the hearing, "to require that anything be embodied in an order at this juncture." Nevertheless, she said, the issue is of the utmost importance. "This is a very big problem that affects many people who are not in control of this process."
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