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Federal Judge Kicks Rikers Receivership Question Down Road

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By Reuven Blau via The City

Despite a spike in violence and deaths in city jails, a federal judge Thursday rejected demands from inmate advocates to strip control of jails from the City Hall by transferring the Department of Correction to a “receiver.”

Laura Taylor Swain, the chief judge for the U.S. District Court for the Southern District of New York, said Department of Correction Commissioner Louis Molina deserved more time to implement his own plan for action. 

“With sustained commitment of action the department can build a foundation on which reform can be achieved,” Swain ruled after a two-hour hearing at the Daniel Patrick Moynihan Courthouse in Lower Manhattan. 

The highly anticipated decision disappointed a growing chorus of criminal justice reformers and elected officials who have for months been pushing the judge to begin the process of appointing a nonpartisan federal receiver who, they say, would not be influenced by politics. 

“There is no time to wait,” Debra Greenberger, a criminal defense attorney representing detainees, told the judge. 

“The problem is a systemic failure,” Greenberger said, noting conditions have worsened even after the same court appointed a federal monitor to keep an eye on city jails in 2015. 

“I don’t want to be sitting here in a year at the same place,” she added. 

The hearing pitted attorneys from the city Law Department and the DOC against the Legal Aid Society, the city’s largest public defender service, as well as Greenberger and her firm, Emery Celli Brinckerhoff Abady Ward & Maazel. 

‘Seeing Gains’

Notably, two key players urged Swain to stay the course: Steve Martin, the federal monitor; and a representative for Southern District U.S. Attorney Damian Williams. 

Martin — also known as the Nunez monitor, named for the lead plaintiff in the original class-action suit — told the judge “unprecedented” progress was finally being made. 

“Progress, once it gets underway, can get momentum,” he said. “I’m not [saying] that I’m seeing momentum but we are seeing gains.” 

For example, he noted, correction staff at one facility on Rikers have finally agreed to make sure officers remain at certain posts in housing units. They have also started to keep detainees away from corridors where fights and slashings frequently occur. 

“That has never happened,” Martin boasted to Swain, referring to jail supervisors finally listening to his recommendations. 

That positive testimony was a far cry from his 12 reports so far in seven years — with each one calling out an increase in violent incidents and a host of other problems at city lockups. 

At the Thursday hearing, Molina also announced the city’s plans to get permission to hire wardens from outside the DOC. Currently, those leadership roles must be filled by internal staff already on the payroll according to the city’s administrative code. 

Martin and other jail experts have been urging the department to make that change for wardens and deputy wardens for years. 

See You Next Spring

The receiver argument is not permanently settled: Swain ordered all the sides back in court in April for another review. 

Before the hearing, inmate advocates rallied outside the courthouse, urging the judge to appoint a receiver and to speed up the shutdown of the facilities on Rikers — per the city’s embattled plan to build four borough-based jails. 

They noted 18 detainees have died in DOC custody so far this year, the highest total since 23 died in 2013. 

“Mayor [Eric] Adams, if it was one of his family members he would have gone there himself,” Henry Robinson told the crowd of roughly 40 activists — mainly from his nonprofit Katal Center for Equity, Health, and Justice — wearing black “Shut it Down” T-shirts. 

Advocates including Akeem Browder, brother of Kalief Browder, center, joined the rally. 

On Monday, the Legal Aid Society formally filed a brief asking Swain to appoint a receiver to take over the troubled jail complex. 

A receiver likely would have power to tear up union contracts and make politically unpopular decisions like making it easier for the city to discipline and fire officers found guilty of hurting inmates, or going absent without obtaining official leave — a growing problem. 

Under receivership, Swain would appoint a person deemed to be a corrections expert to take over running city jails — including the plan to shut Rikers and house detainees in four new jails in each borough except Staten Island.

Adams has repeatedly described the possibility of a receiver as a takeover by the Federal Bureau of Prisons — but that’s not how it would work. A receiver would actually be a person, possibly with some experience reforming public agencies, appointed and overseen by Swain. 

In June, Molina announced an action plan with a key proposal to hire additional civilian staffers to do paperwork so officers can return to guarding detainees. The plan — developed with Martin — also calls for streamlining the discipline process. 

Additionally on Thursday, Molina — who was at the Somos conference in Puerto Rico with other city commissioners last week — said that he has hired 28 new department deputies with combined “hundreds of years” of experience reforming jails. 

Inmate advocates and a growing list of local officials — like city Comptroller Brad Lander, several Council members and Liz Glazer, director of the Mayor’s Office of Criminal Justice under former Mayor Bill de Blasio — were hoping Swain would conclude that Molina’s reforms aren’t working. 

DOC leaders — spanning three commissioners — have refused to enact several of Martin’s recommendations designed to curb violence and make it easier to discipline staff. 

As for the receivership, legal experts predicted that Swain, if convinced that was a possible need, would set a so-called briefing schedule. That’s where both sides can argue their case for or against the appointment of a receiver. 

That process — which might include an actual courtroom hearing — could take at least three or four months because each party will likely be given weeks to respond to the initial written arguments, based on prior similar cases.  

Swain’s ruling was hailed by the union representing top jail supervisors. 

“The receiver would have had way too much authority who would be starting from scratch,” said Joe Russo, president of the Assistant Deputy Wardens/Deputy Wardens Association.

“Like these people are coming with magical powers to fix everything,” Russo added, noting he also opposes allowing hiring of wardens from outside the department. 

Missed Medical Checks Before Deaths

On Wednesday, the night before the court hearing, the city’s jail oversight board released a report examining nine of the recent deaths behind bars. 

The report found that each of the detainees who died missed medical appointments. 

THE CITY reported in July that Dashawn Carter missed 92 medical appointments during his three stints in jail dating back to 2018, before his apparent suicide earlier this year. 

The 25-year-old Staten Islander was found hanging from a bedsheet attached to a window in the corner of a housing unit in the Anna M. Kross Center on Rikers on May 7.

Most of his no-shows — likely for mental health appointments — were because correction officers failed to escort Carter to clinics located outside of the main housing areas, an earlier Board of Correction review revealed. 

The BOC’s latest, more comprehensive, report found more of the same.

“When individuals who require psychiatric treatment or therapy are not consistently brought to their mental health or medication appointments, they run the risk of decompensating,” the report stated, using a psychological term for losing the ability to maintain normal emotional functions.

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