By Tandy Lau from Amsterdam News
Published on December 5, 2024
Federal judge Laura Taylor Swain held the City of New York in civil contempt last
Wednesday, Nov. 27 for failing to properly implement court-ordered reforms in
city jails, particularly on Rikers Island, stemming from a 2012 class action lawsuit
over unconstitutional detainee conditions. The case, Nunez v. City of New York,
was settled in 2015 and required the NYC Department of Corrections (DOC) to
comply with a laundry list of changes and report them to a monitoring team.
Additionally, Swain is “inclined” to install a receiver, a federally-appointed third
party to assume control over jail operations from the city until those reforms are
met. The measure is largely seen as a last ditch effort but is also regarded as long
overdue by many criminal justice advocates. Parties will meet with the monitor and
file “proposed frameworks” by Jan. 14, 2025, for how the takeover could work.
Contempt orders result from disregarding the court’s authority — Swain writes that
conditions are “demonstratively worse” than when the city agreed upon the
reforms. The ruling specifically points to noncompliance towards 18 provisions
spread across four court orders pertaining to issues like use of force, staff
discipline, and jail security.
The Nunez plaintiffs’ previous attempt to hold the DOC in contempt, which was
made in an effort to point out issues with intake on Rikers Island, failed last year.
Their co-counsel, Debra Greenberger, says Wednesday’s decision was a big step
toward keeping people held in city jails safe.
“What we have asked the court [to do] was to hold the city in contempt [for] a
large number of provisions of the court’s orders,” said Greenberger over the phone.
“And it’s important to realize that those orders are orders the city agreed to. ‘This
is important to make the jail safe [and] to meet the constitutional requirements’ —
those are all things the city said, [it agrees] those are necessary. And then they
didn’t do that.
“Then the monitor, who has been painstaking in pointing out each time the city has
violated these orders, would tell them and the city would continue not to do it…we
saw contempt as an important piece of the puzzle to try to figure out how do we
change things.”
While criminal contempt orders have led to jail time for notable figures like former
White House aide Steve Bannon and ex-Maricopa County Sheriff Joe Arpaio, civil
contempt is not punitive in nature and intends to ensure compliance. Ultimately,
Swain ruled “imposing a term of incarceration on Department [of Corrections] or
City leaders until compliance has been achieved would do little to advance
reform.”
Other contempt remedies considered besides receivership include fining the city
and releasing Rikers Island detainees (which would require authority beyond
Swain from a three-judge panel). Both were disregarded.
A spokesperson for Mayor Eric Adams pointed to improved relations between the
monitor and the DOC following his appointment of current commissioner Lynelle
Maginley-Liddie last December noted in Swain’s contempt order.
“Commissioner Maginley-Liddie has also proven herself to the court and the
monitor as the necessary steady hand to continue protecting those in our care and
who work for the DOC,” Adams’ spokesperson said in a statement. “We are proud
of our work, but recognize there is more to be done and look forward to working
with the federal monitoring team on our shared goal of continuing to improve the
safety of everyone in our jails.”
While Swain credits Maginley-Liddie — the second Black woman to head the
DOC — with developing more transparency and cooperating with the monitor, she
notes past commissioners also started their tenures with strong working
relationships but ultimately failed to comply with court orders. The judge remains
noncommittal on whether Maginley-Liddie’s “good intentions” will effectively
usher in the mandated reforms.
The DOC blames the increased violence on increasingly violent charges among
those detained, pointing to recent bail reform laws mitigating the number of people
held in pre-trial detention for non-violent felonies. However, Swain notes no
evidence correlating a person-in-custody’s charges with excessive use of force and
dismissed the argument’s relevance to the city’s “obligations to provide safe and
humane treatment to those within its jails.” To be clear, those held in pre-trial
detention are innocent until proven guilty.
“These people are charged, they’re not convicted, but regardless of the crime they
were charged with, [are] entitled to have a minimum consular constitutional level
of safety, and the city jails have violated that,” said Greenberger. “And it’s not just
that they have violated the end piece, which is that the jails are unsafe. Many of
our contempt provisions are about the building blocks: they’re not staffing jails
appropriately. That has nothing to do with who the jail population is.
“Posts are unstaffed. This is like security 101, you should have people on posts,
right? And people aren’t being disciplined for misconduct again. This has nothing
to do with the demographics of the jail population.”
A “federal takeover” remains a common misconception for receivership. While the
receiver is ultimately appointed by a federal judge, the role relies on independence
to achieve reforms without political pressure or red tape.
The Bill Clinton-appointed Swain enjoys a lifetime term, so the incoming Trump
administration’s impact on a federal receivership would be nominal. Experts say
the upcoming departure of U.S. Attorney Damian Williams, who intervened
in Nunez and supported both receivership and a contempt order, will not impact the
case. Former SEC chair Jay Clayton will likely replace him as Trump’s appointee.
Still, the selection process for a receiver will be a “monumental decision”
according to Campaign Zero Executive Director DeRay Mckesson. The prominent
civil rights activist says receivership will play a big role in racial justice given the
disproportionate number of Black and Brown New Yorkers held in custody.
“There’s a question of, can we, can we think outside the box to get somebody to be
the receiver here that is not just a repetition of the same type of leadership we’ve
seen in other places across the country,” said Mckesson over Zoom.
Those with carceral backgrounds are overwhelmingly tapped for receivership over
correctional facilities, although law professor Clark Kelso was appointed to
oversee California’s prison medical system due to his expertise in all three
branches in government.
“It’s really important to choose the right person: someone who would have the
vision necessary to make the types of reforms that we’re talking about [and]
somebody who would have the level of independence and vision to be a reformer,”
said Greenberger. “So some of this is just a process of finding the right person. It’s
not clear to me whether the city and the plaintiffs will agree on who that person is
but I expect if we don’t, that the court would play an active role in choosing the
person.”
The Nunez reforms entail all city jails, even as the issue is synonymous with Rikers
Island, home of seven active facilities which are scheduled to be closed in
2027 and replaced by four borough-based jails. Although unlikely, closure and
receivership could intersect if issues persist past the deadline.
“Closure is a political creature, and this receivership process is inherently not
supposed to be a political creature,” said Hernandez Stroud, a senior fellow at
NYU’s Brennan Center for Justice. “In a way, they are running parallel. I don’t
think that they have to run at odds with each other.”
While the city council’s direct hand in passing the borough-based jail plan cannot
intervene as intimately with receivership, a resolution was reintroduced by Public
Advocate Jumaane Williams earlier this year to declare a loss of confidence in the
DOC and push for a receiver.
Stroud adds that receivers historically established “significant and positive impacts
on systems.” Those reforms range from eliminating overcrowding to securing
budget increases to petitioning judges to waive state and local laws impeding
constitutional compliance. But the jails will eventually return under the city’s
control after any receivership.
“I think that receivers are effective, but ultimately it’s up to the government to
maintain a receiver’s work after that receivership ends and judicial oversight fades
away,” said Stroud. “Before the case ends, there is a period of judicial oversight to
sit back and see whether the government is capable of maintaining the reforms
instituted by receivership. One problem sometimes is that receivers spin in ways
that [the] government might find politically unsustainable.
“For example, D.C.’s receivership cured a lot of problems with the delivery of
medical and mental health care, but there was a subcommittee hearing in Congress
after the receivership that, despite all the progress, lamented the cost of delivering
healthcare post receivership compared to other comparable systems delivering
healthcare within prisons and jails.”
But high price tags do not necessarily belie a profligate receiver; they can also
mean necessary resources towards the reforms were not being spent.
“The task for any receivership and judge is to make sure that the receivership’s
work sets up the government in the best possible position to maintain the reforms
after the receivership terminates,” said Stroud.
On the ground, Swain’s decision signifies a major victory for advocates. Yonah
Zeitz, Katal Center’s director of advocacy, recalls the fight for receivership spans
years of protests and actions through roughly 90 different organizations. Now, he
hopes those same movements get a seat at the table.
“We’d want to see there the avenues for active communities to weigh in [and] to
influence the process,” said Zeitz. “We want to make sure that the receiver makes
themselves accessible to the communities, the folks that are on the ground [and]
most directly impacted by Rikers, because there’s no way that you can effectively
shift the long standing, deeper issues without hearing from the folks that are
experiencing it.”
