After PR stunts, damning reports and a new lawsuit, judge sets stage for potential federal takeover of Rikers next year

At a court hearing on Thursday, federal judge Laura Taylor Swain ordered the Legal Aid Society and the Department of Correction to submit briefs arguing for and against federal receivership, beginning a process that could ultimately result in the federal government taking control of the city’s troubled jails system early next year.  

In the week before the hearing, a number of critics of the DOC took steps to emphasize the necessity of a federal takeover of New York City jails. So many organizations wrote to Swain that she posted a notice on the court docket: “The Court has received a number of communications, from individuals and groups who are not parties to the above-captioned case, in which the writers express their views on various issues pertaining to the management of the jails on Rikers Island. The Court does not respond to these communications. Nor does the Court post these communications on the public docket.” 

On Monday, the court-appointed federal monitor released a report revealing that more than a dozen additional people may have died this year shortly after being released from city jails. Two days later, New York City Comptroller Brad Lander released his own report showing that violence has continued to increase at Rikers Island jails, which remain understaffed.

Meanwhile, the Board of Correction – an independent watchdog agency which oversees the city’s sprawling jails system – filed a lawsuit against the DOC. The Board of Correction has accused the DOC of attempting to cover up the inhumane conditions in the jails by refusing to provide the Board with records and video footage related to incidents at Rikers that they are legally entitled to.

The monitor’s report, the comptroller’s report and the Board of Correction lawsuit were all intended to send a message to Swain: there is no other option other than federal receivership for city jails. It seems the judge got the message.

Judge Swain’s decision

At the Thursday hearing, Swain moved the complicated proceedings along in just under two hours. The attorneys representing the plaintiffs in the case – the federal monitoring team, the Legal Aid Society’s Mary Lynn Werlwas and federal prosecutor Jeffrey Powell – argued for a court order that would set a briefing schedule for a contempt motion, the first step in a process that could allow a federal receiver to take control of the city’s jails system next year. DOC Commissioner Louis Molina and attorneys representing the city argued against the proposed order. 

During the arguments, Swain sat stone-faced and locked eyes with all of the speakers in her courtroom except for Molina. While he spoke, Swain peered down at her screen reflected in her spectacles and scrolled through documents. Molina and the city’s lawyers attempted to nitpick at certain language in the proposed order that would allow the federal monitor access to all DOC meetings and also quibbled about the number of supervisors needed in DOC’s investigative division, but they were overruled on both of their proposed amendments to the order.

Legal Aid’s Werlwas bluntly said that the DOC could not be trusted to run the jails. “Recommendations have fallen to the ground,” she told the judge. “There is no shortage of plans; what has lacked is implementation. … At its core, this is an agency that abdicates its responsibility with impunity.  Most disturbingly, the agency doesn’t seem to appreciate the harm it causes, placing guns in the hands of its ESU team and not responding to the monitor.”

But it was Anna Friedberg, the deputy federal monitor, who carried the hearing. Friedberg, who is nine months pregnant and expecting next week, described visiting Rikers on Wednesday.  

She said they toured two of the jails on the island: the “RESH” or enhanced security unit of the Rose M. Singer Center, a formerly all-female jail that now also has a special unit that houses men; and an intake unit at the Otis Bantum Correctional Center, a jail that was closed two years ago but recently reopened by Molina. Both of these units are newly-retrofitted and recently  held up as model Rikers jails; after investing millions of dollars to refurbish the Otis Bantum Correctional Center, Molina bragged to the Board of Correction that the jail was now “operational at the standard we need it to be.” These units are also supposed to be very secure; they are heavily staffed, and their occupants are routinely searched and not permitted visitors.  

Friedberg said that despite all that, the monitoring team still witnessed rampant drug use on their visit. At one point, she told the court, she entered an intake area and observed four individuals smoking a substance that had rendered them inarticulate, unable to move and almost in a convulsive state. She spotted a contraband blunt on the floor, still burning, and fled the area to protect her unborn child from the fumes. When Friedberg raised the issue of illegal substance use with DOC personnel at the jail, she said, they admitted that “we have a fentanyl problem in the jails” but did not take any steps to remove the illegal substances or move the affected individuals from the intake area into medical care.

Friedberg also slammed the DOC for repeated attempts to manipulate the public and press through publicity stunts. “We still have questions regarding DOC’s attempts to shape public perception over the past three days,” she said, adding that “the department has only facilitated tours with various public officials and provided social media content and new paint.” 

This is not the first time that the DOC’s attempts to influence public opinion have come under scrutiny. During an earlier status conference on June 13, Swain rebuked the DOC for attempting to manipulate public perception of Rikers instead of focusing on working with the federal monitor and fixing the underlying issues in the jails. “My confidence in the commitment of the city leadership to be all in in recognizing that need and in working with the monitoring structure that the Court has imposed in good faith and in all candor has been shaken by…the way in which the leadership has approached seeking to shape public opinion and public perception of these very serious issues that have been raised by the monitor,” she said at the time.

At the hearing on Thursday, Friedberg specifically called out last week’s visit to Rikers by the City Council’s Common Sense Caucus. “On the day a large tour of individuals was escorted this week, there were 67 incidents: 29 use of force, 11 slashings and stabbings, 12 fights, seven fires, two serious injuries, ten self harm incidents, narcan was used twice, incidents of staff assault and sexual misconduct towards people in custody by staff as well as nine grams of cocaine, 21 grams of marijuana, 17 prozac pills, 15 sharp objects and two phones recovered,” she said, adding that granting selective public tours “appears to be another attempt to evade oversight.”

For his part, Molina tried unsuccessfully to fend off the federal prosecutor and monitoring team’s harsh assessments with a light sprinkling of his accomplishments. He argued that the DOC of 2023 should not be held to the standards of the DOC in 2016. But it was not enough to satisfy Swain. “Some improvement in selected statistics is not enough…the court made clear that should defendants fail to make progress, the court would agree to move towards receivership. Defendants have not demonstrated by willingness or action to engage with the monitoring team to ensure safety at Rikers,” she concluded. 

In a slow, monotone cadence, the judge explained that federal receivership was not an inevitability, though it was on the table. “The fact that I have authorized this motion practice does not mean I have given up on the defendants,” she said. “Instead, I’ve authorized the order because developments are not enough and not thorough…Defendants are to take the next few months to prove they will do nothing but implement the safety plan.” Swain also warned the city and DOC that they were now under the microscope. “The monitoring team will be watching, the press will be watching, the loved ones of those who live and work in the jails will be watching,” she said.

Swain scheduled the next hearing in the case for Nov. 28 and set the following schedule for motions: plaintiff’s motion for contempt must be submitted by Nov. 17, defendants reply by Dec. 31 and plaintiff’s response to the reply by Feb. 15, 2024. That means the absolute earliest that a federal receiver could take over the city’s jails system would be February 2024. 

Even more unrecorded deaths?

On Monday, the federal monitor published its latest report, which included data suggesting that the true number of people who have died following stays in city jails is higher than previously known.  An appendix buried at the end of the report revealed that Correctional Health Services,  the health services division of HHC that serves the DOC, submitted 34 clinical condition letters between Jan. 1, 2023 and June 13. These letters, which ask courts to dismiss charges against defendants due to their precariously poor health conditions, are usually only issued when death is all but certain.  

“The Department reports that 15 of the 34 individuals with clinical condition letters have been released from custody, the monitor’s report states. “Of those 15 individuals, six individuals were released on their own recognizance and their health status is unknown, one individual was released on their own recognizance and died shortly thereafter their release (incident #4 of the Monitor’s May 26, 2023 Report), two individuals were released with time served, two individuals had their warrants lifted, one individual was released because his sentence expired, one individual was released on conditional discharge, one individual was transferred to state prison, and one individual died while in-custody. The other 19 individuals with clinical condition letters remain in custody.”

Of the 15 people released with clinical condition letters this year, we only know one of their names: Joshua Valles, who was granted medical release on May 20 and then died on May 27th at North Shore Jewish Hospital. The other fourteen people may have already perished,.   There is not a state or local law that governs medical releases for people in pre-trial detention in New York.  Commissioner Molina told the federal monitor that the department uses the definitions outlined in a state law for the compassionate releases for NY state prisoners which only authorizes medical releases of this type when death is inevitable or when “in light of the inmate's medical condition, there is a reasonable probability that the inmate, if released, will live and remain at liberty without violating the law.”  We know that of the 16 people whose deaths following compassionate release have been documented over the past eight years, the average amount of time between release and death was 66 days. If all 14 unnamed people granted medical or compassionate release this year have since died, that would raise the overall city jails death toll for 2023 to at least 21 people.  Asked specifically about the status of these 14 individuals, DOC officials declined to comment.

State law does not require correction authorities to report deaths after medical releases, but the federal “Death in Custody Reporting Act” mandates that states must report information regarding the deaths of people in all forms of confinement to the U.S Department of Justice’s Bureau of Justice Statistics. During Thursday's hearing, Molina made a special note of saying that he believed that “no other jurisdiction would count the death of a person after compassionate release.” But the DOJ has clarified that it considers all deaths in medical facilities to count as “in-custody” deaths that must be reported. “If the incarcerated person, absent the medical condition, would have been in prison at the time of death, it counts as a reportable death,” according to a DOJ fact sheet. “Although the person was not physically in a correctional facility at the time of death, the death is still one of an ‘incarcerated individual.”  This likely includes deaths that occur following medical and compassionate release.

A prior City & State investigation revealed that since 2014, the DOC has only publicly reported on 44 of the 120 deaths that occurred either in DOC custody or after medical release.

Board of Correction vs. Department of Correction 

On Wednesday, the Board of Correction filed its own lawsuit against DOC, arguing that Molina’s arbitrary decision to curb the Board of Correction’s access to DOC video footage “is of a piece with DOC’s pattern and practice of attempting at any cost to evade oversight, transparency, and accountability.” The lawsuit accuses the DOC of censoring responses to the Board of Correction’s FOIL requests, denying access to DOC records and deleting footage from Rikers that was specifically requested by the Board. On the same day that the lawsuit was filed in state court, five of the eight members of the Board of Correction published an op-ed in the Daily News calling for a federal receiver to assume control over the city’s jails.  

The lawsuit reveals that the Board of Correction’s controversial new chair, Dwayne Sampson, attempted to win back access to video footage by agreeing to allow the DOC to censor responses to the Board’s public records requests. Despite this offer, the DOC still refused to give the Board unfettered access to the department’s video archives. The complaint lays it all out:

 “On January 12, Mr. Sampson wrote a follow-up letter to Commissioner Molina to further address any potential concerns regarding the Board’s response to certain FOIL requests in more depth…After Mr. Sampson sent this letter, in January 2023, the Board updated its FOIL Operating Procedures. Under the updated procedures, Board staff now notify DOC’s Records Access Officer whenever the Board receives a FOIL request for DOC records. Board staff ask DOC’s Records Access Officer for recommendations on redactions before producing the responsive document.”

The complaint also blames the city for abetting DOC’s attempts to resist transparency, though it stops short of naming the mayor: “Disappointingly, the Respondent New York City…has joined in DOC’s efforts to obfuscate and obstruct oversight of the Department. When the Board brought DOC’s termination of the Board’s long-standing video access to the attention of the Respondent City, rather than resolve the issue by directing Commissioner Molina to reinstate access, the Respondent City effectively ratified the decision and, for months, has frustrated the Board’s attempts to resolve the dispute.”

The lawsuit follows months of fruitless negotiations between the Board of Correction and the city over DOC’s refusal to allow unfettered access to video footage. For its part, the city Law Department has declined to represent either party in the legal fracas.

A strong case against DOC

The Board of Correction is being represented in its lawsuit against DOC by Steven Banks, the former CEO of the Legal Aid Society, Banks also has led the city Department of Homeless Services and the Human Resources Administration during the de Blasio administration and is now in private practice at the white-shoe law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP. 

In the complaint filed on behalf of the Board of Correction, Banks argues that the DOC’s decision to revoke the Board’s access to video footage “arbitrarly and capriciously violates the board’s inspection rights,” which are explicitly laid out in the New York City charter. In a footnote to the complaint, Banks politely paints Molina’s motive for revoking access as irrational. “The court must be certain that ‘an agency has considered all the important aspects of the issue and articulated a satisfactory explanation for its action, including a rational connection between the facts found and the choice made,” he writes, adding that a “decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious.” 

The job of defending DOC’s policies falls to Paul Schechtman, the department’s deputy commissioner for legal affairs, though a source close to DOC told City & State that Shechtman has been heard telling people around town that he is worried that defending Molina’s positions is “making him look bad.” Before joining DOC, Shechtman represented Norman Seabrook, the former Correctional Officers Benevolent Association president, in a federal bribery case that resulted in Seabrook being sentenced to almost five years in jail. 

Schechtman did not appear on behalf of the DOC in the two most recent status hearings in federal court – on June 13 and Aug. 10 – and it is not clear whether he will file a notice of appearance in the Board of Correction lawsuit. The DOC did not respond to a request for comment concerning who will represent the department in court. 

After Thursday’s hearing, one thing seems clear: Molina’s apparent attempt to avoid federal receivership by thwarting his own oversight bodies was anything but rational.