Late last month, Federal District Court Judge Laura Taylor Swain found New York City and the Department of Correction in contempt of court on 18 counts in Nunez v. Department of Correction, the now almost fourteen-year-old civil lawsuit seeking redress for dangerous conditions at the Rikers Island complex.
This is not her first finding of contempt, but it is the first one where she has been so explicit about being “inclined to impose a receivership,” a measure that would take control away from the municipal chain of command and vest it to some significant — or potentially absolute — extent in an outside administrator appointed by the court itself. Swain urged the parties to agree on a framework of what this could look like by January 14, which would then be presented for the court’s consideration.
The specifics items that Swain wants the parties to hash out and present a framework on are the mechanics of a receivership itself: whether one would fully replace or work alongside a DOC commissioner, how one would be appointed, the parameters of their tenure, their powers, and what qualities would make a candidate qualified for the position.
Each of these questions is fundamental to the effort in some way, and the answers would go a long way towards determining its ultimate success. It stands to reason that if the biggest obstacle to reform has been a DOC management too closely tied and far too deferential to the city’s political leadership, then having a DOC commissioner remain with some concrete authorities would potentially hamper the work of the receiver. The speed and decisiveness with which the receiver could execute policy shifts, personnel changes, and management decisions — including replacing DOC leadership, which has the day-to-day responsibility for executing the plans that the parties and the monitor keep laying out, and which keep not being followed through on — would depend on some level of independence and ability to act decisively.
I realize that I’ve written a decent amount about Rikers and I can fall into the trap of understanding the issues to be self-evident, so let me just briefly recap what’s so rotten on that island.
Federal Monitor Steve Martin, appointed by the court in 2015 as part of the longer-running lawsuit, has a truly extensive record in corrections settings, having served as everything from prosecutor to corrections official to probation officer to private attorney to consultant, involving jails and prisons around the country, for decades. This seasoned professional could barely hide his shock and disgust at the conditions inside the Rikers complex, often noting that the very management structures and culture of the department prized impunity and incompetence, with detainee deaths, slashings, beatings, and lack of medical treatment practically a matter of routine.
Swain, who through years of observing this case I’ve always seen to be even-handed, meticulous, and cautious in her assessments and pronouncements, does not mince words in this order. After dozens of pages of findings of facts with blunt titles like “Failure to Conduct Adequate Use of Force Investigations and Hold Staff Accountable,” she writes that “[t]he last nine years also leave no doubt that continued insistence on compliance with the Court’s orders by persons answerable principally to political authorities would lead only to confrontation and delay; that the current management structure and staffing are insufficient to turn the tide within a reasonable period; that Defendants have consistently fallen short of the requisite compliance with Court orders for years, at times under circumstances that suggest bad faith; and that enormous resources—that the City devotes to a system that is at the same time overstaffed and underserved—are not being deployed effectively.”
This is of course not a new assessment. A version of this has been the advocates’ view for years, but had been often dismissed as alarmist or uncharitable to the city’s progress. When all is said and done, almost a decade after the federal monitor was appointed — which is to say, a decade after the conditions at Rikers were found to be literally unconstitutional — all of what ailed the jail continues to ail it.
Some readers may now be wondering, does a federal receiver still seem like a good idea in the era of Trump, a man so averse to principles of fairness in the criminal legal system that he recently said a “real rough, nasty” and “violent day” of policing would fix crime in America? The good news is that a federal receiver is not actually responsive to the Justice Department or really the executive administration at all; a receiver would be appointed directly by, and answer exclusively to, the court itself.
There is only one area here where a second Trump administration could have an impact, and that’s on the U.S. Attorney for the Southern District of New York, whose office has intervened in the case on the plaintiffs’ side. Current U.S. Attorney Damian Williams made waves last summer when he announced his office’s support for a receiver, a heavyweight voice that added a lot of pressure on the pro-receiver side. Trump so far has only announced one pick for a U.S. Attorney office, which is unsurprisingly this one, given the role’s national prominence.
His pick is former Securities and Exchange Commissioner Jay Clayton, by most accounts a serious and relatively moderate official; it’s not clear whether or not Clayton will maintain the office’s support for receivership or pull it. Even if he does the latter, though, the judge won’t necessarily change course, especially since she’s likely going to rule not too long after the changeover occurs.
As for who the receiver would actually be, that’s anyone’s guess, though they won’t necessarily be someone who comes from the corrections panorama. THE CITY asked three potential candidates — the former head of the NYCLU, a previous acting DOC commissioner, and a longtime incarceration reformer who has served in executive roles in other detention settings — if they would be willing to take on the job, and all said yes.
Ultimately, the parties will probably have to agree on a consensus candidate, like they did for Martin, with the assent of the judge. If and when that happens, for the first time since this case first appeared before Swain and set off years of stunted attempts to improve conditions, the buck will not stop with the city’s existing administrative structures, but with someone responsive only to the court and its imperative to turn the ship around quickly.
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