What You Don’t Know Will Hurt You

It is a barbarous time in New York City’s jails. In 2022, 19 people died, the highest rate since 1996, with stabbings and slashings 50% higher than the previous record high in 1995. Today, the federal court in Manhattan in charge of overseeing the City’s efforts to reduce violence in the jails will meet to determine, again, if progress has been made, and if so whether the progress is sufficient to continue on the current bleak trajectory. 

To make the judgment on progress, the court has information from the monitor, who has access to the jails as well as the Department of Correction’s (DOC) records and people. This monopoly on information has shut out relevant context and dynamics that drive the violence and dysfunction, conditions that rarely seem to get better, and in recent years have gotten radically worse.

We offer here some analysis of why the situation has deteriorated so badly, and what kind of information, context and insight could assist the court in making the difficult decisions demanded of it. We urge, most of all, that the court break the monopoly on information by inviting a briefing by the parties — those representing the plaintiff class of the incarcerated, the United States Attorney, the City of New York and the DOC, but also qualified amici, for example, the oversight agency for the city’s jails, the Board of Correction (BOC) — on the following question: What is driving the unbridled violence in the jails and what are some options to address those conditions effectively and durably?

Some of us have advocated strongly that the City should accept a federal receiver who would have the authority to cut through red tape and, where necessary and when approved by the court, abrogate contracts and address the jails’ stubborn problems in a manner freed of the history and politics that now snarl the effective implementation of policy.  We continue to urge this remedy and offer this solution — of breaking the seal of information — as an aide to decision-making whether in the context of weighing the merits of receivership or on the path to a different and durable remedy.

Why are the jails broken?

The City is in its eighth year under a federal consent decree aimed at curing the unconstitutional conditions in the jails, and in the 13th month since the monitor supervising the progress declared a five-alarm fire emergency because of the unabatedly brutal conditions. Today, the unconstitutional levels of violence, which in 2015 put the city under federal monitorship, are but a wished-for dream, as stabbings and slashings stand at five times the 2016 level and uses of force at twice the 2016 level.

By now, everyone agrees that the City’s jails are broken, even the unusual suspects. Most recently the monitor, who in his report preparing for today’s hearing, sounded a startlingly abolitionist theme, noting that the jails are so dangerous that everyone with authority should work to empty them. 

The court is in an unenviable position, first, because the problems laid at its door to fix are largely ones of governance — an essential responsibility of the government, not the judiciary, in the ordinary case. And second, because to solve those problems, the court must understand what has caused them. These causes are mired in a complicated and opaque history that has hemmed in governmental action through years of settled, though certainly not best, practice, and formal and informal agreements reflecting the push and pull of past and present politics. Haunting it all is the power of the correction officers union, seemingly constraining the choices that the City could make to improve the well-being of both those incarcerated and those working in the jails.

All this would make the hill steep enough. But there is something more pernicious and pervasive: the monopoly on information exercised in the courtroom by the monitor and the City, and the brazen war on transparency waged by the administration against oversight that suffocates inquiry when it should spur questions. The City is essentially vacuum-sealing sources of information on the jails.

Here are a few examples of how the court only sees what the City allows it to see:

• The Department abruptly eliminated independent access to jails' video footage to BOC, apparently viewing their charter responsibilities as optional.
• The City has urged BOC to reduce the frequency of its public meetings, the only regular forums where the public can receive information and put questions to the Board and city administration.
• The Department has ignored information requests from congressional representatives, City Council members and the media. 

The past indicates that when the Department controls the facts that are disseminated, it is prone to mislead. In 2018, the Board found the Department underreporting serious injuries by 80%. When the Board audited required supervisor tours in 2019, it found that 38% of them, while written in the logbook, simply did not occur. After Judge Laura Taylor Swain ordered a reliable tracking system for people languishing in the intakes in September 2021, the Board found the Department manipulating data in that system in October 2022.

The examples of the Department’s unreliable and implausible data are numerous, yet it is their data that we find in the tables throughout the monitor’s report, akin to letting Exxon write the official record on climate change. The Department’s and City’s efforts to ignore independent oversight and intervention are costly on many levels. Most recently, the City agreed to pay $53 million to the more than 4,000 people held in unsanctioned solitary confinement, without any due process, in city jails between March 2018 and June 2022, after multiple efforts by the Board to get DOC to cease those harmful practices.

For decades, the Department of Correction has held the key to the black box of jail information, a repository of mostly paper-based record systems that obscure and belie reality. The federal monitor has in recent years urged the Department to keep more and better records and create new information and accountability systems with spotty success. More urgently, the monitor’s reports call out the troubling fact that still the Department does not know where its staff are posted, where incarcerated people are at any given time and more. Nevertheless, the monitor and judge are reliant upon the Department to determine progress.

In the few instances where the monitor attempts to verify information, the task proves discouraging. For example, the most recent monitor report discusses a recent visit to intake, the unit where people first entering Rikers are assessed for housing and other needs, and where the conditions have been a point of controversy between the parties. There the monitor encountered “a few lapses in processes and procedures the Department worked hard to develop.” There were no “staff expeditors” and data was not being properly entered into a dashboard documenting the location and movement of incarcerated people.

Why has so little changed since 2015?

It has been eight years since the City acknowledged the unconstitutional levels of violence in the jails — what the U.S. Attorney referred to as a “culture of violence” — and agreed to remedy the violations by meeting more than 300 specific metrics. Since then, there have been numerous court meetings and many thousands of pages of detailed analysis of the problems plaguing the jails. But conditions today are astronomically worse than in 2015 both by the numbers and by the individual cases that backlight the world of ineptitude and corruption that pervades the Department’s operations.

Things have been broken for so long that we appear to have lost our ability to be shocked into action. The sheer brutality does not seem to accelerate change: not the person in custodywho died choking on an orange because no staff was present to assist; not the man who slit his throat in full view of officers who watched him bleed out; not the man, suffering from mental illness, who climbed a 30-foot fence topped with razor wire, in full view of officers, leaping to his death in the East River, five stories below him. In the current context, all of this seems to result in business-as-usual, not an urgent call to action.

Nor does the level of mismanagement, shading into corruption, seem to shock the conscience or spur effective action: not the captain who remained on post after instructing a subordinate to let a man hang himself because “she thought he was joking” (she was subsequently convicted of criminally negligent homicide); not the burying of cases alleging excessive use of force or the “selling cheap” of the settlement of other cases. After a year of mismanagement, or perhaps malfeasance, one of the deputy commissioners was finally either pushed or jumped to retirement.

The source of dysfunction, all seem to agree now, is as banal as its effects are savage: the absence of a working management structure or accountability mechanism. This leads to escalating violence: hyper-aggressive and inadequately trained officers respond in a predatory environment to disputes or violence among incarcerated people; the violence between the officers and the incarcerated further twists the rubber band of tension in the facility; incarcerated people arm themselves — often from the broken doors, windows and walls that surround them — creating a vicious cycle of fear and violence among all housed and working in the jails.

The abject failure of the accountability system further fuels what the monitor refers to as the culture of impunity. This culture of impunity is further cultivated by the failure of the discipline system, which resulted in plummeting consequences for excessive use of force (down 20% between 2021 and 2022). Even here, in his April 2023 report, the monitor found more than one in four staff disciplinary cases had either “questionable” or “unreasonable” penalties.

Although the monitor, a man of deep and wide experience, with an able team, has spent eight years investigating and detailing these problems, they do not get better. More than that, despite the welter of words, there is an elision in the language and narrative of the reports that makes it difficult for the casual or even informed reader to understand whether, in fact, the monitor is optimistic that things are getting better or pessimistic whether change can ever happen at the pace the crises demand. Reports are notable for the seesaw between despair (“the sheer number of incidents cannot begin to capture the real abject harm”) and cautious optimism about modest steps forward (“there have been improvements in addressing core foundational issues and in remediating the dangerous conditions in the jails — but the current state of affairs remains deeply troubling”). 

There is good reason for the dizzying seesaw between optimism and pessimism. First, objectively, things have gotten horrendously worse since 2015 which, by consent decree logic, should have marked the nadir of jail conditions. Second, measured month by month, even quarter by quarter, sometimes a few things do get better. But inevitably and depressingly, what gets better then gets worse far too often, and the sources of dysfunction are so many and so deep, and the skills of the Department so deficient and unsupported, that there is no steady discernible progress towards a stable and durable future of humane conditions. 

Two examples of the ‘reveal codes’ behind the dysfunction

We offer here two examples of dynamics that are driving the problems yet remain submerged. Bringing these to light could help the court decide whether the current efforts in fact are offering a “glimmer of hope” or whether they are too little too late and a different course is required. Two themes run through all: a staggering inability to achieve basic management competence, combined with an implicit, and apparently unquestioning, assent to union power that aggravates the violence. There is much, of course, that we and the court do not know. But this is a beginning. We urge the court to press the City and the monitor for clarifying information that would illuminate a path to durable change.

1. If staffing is the problem, why are the right people not hired?

Despite being the most richly staffed jail in the country, if not the world, the jails face the conundrum that they do not have the right people in the right positions. Two intertwined issues bedevil this problem: first, as a general matter, the Department seems unable to build a management structure, and unable or unwilling to vet staff properly to ensure that the people they are hiring are up to the job. Second, union agreements, both informal and formal, appear to stand in the way of safer conditions for both staff and incarcerated people. Yet these quite evident facts get short shrift by the monitor when diagnosing the staffing failures and when assessing the prognosis for improvement offered by the civilian positions filled so far. 

In a bald, if unspoken, expression of union power, the Department has been hobbled, or has hobbled itself, in hiring key staff. The Department is missing an entire cohort of middle management — the engine of operations in every organization, including the city’s jails. (We have written extensively about this issue here.) In the jails, this cohort plays the critical role of running the jails’ daily operations. This includes supervising and supporting officers; ensuring movement within and between jails happens as it should to healthcare, the courts and more; overseeing the cleanliness and upkeep of the physical plant; maintaining and distributing adequate and required items and supplies; effectively responding to violence; and, of course, keeping those incarcerated and working in the jail safe.

The full complement of people needed are wardens, deputy wardens, assistant deputy wardens and captains. For years, the monitor has urged that the Department fill these spots from outside because the ranks are thin and not up to the job: for example, 12 of the 26 captains who were promoted to assistant deputy warden were “concerning” to the monitor.

It should be far from a surprise that the Department has trouble promoting from within its ranks in ways that comport with policy and the monitor’s judgment. The monitor has instituted increasingly more training requirements for staff with respect to basic policy — like suicide prevention – and sought to place officers with more education and experience in units for people with complex needs, such as young people or people with behavioral health issues. But the Department has and continues to undervalue training. Last year, despite an unusually (20-year) high suicide rate, fewer than one in five correctional officers had taken their mandated suicide prevention training. This year, the Department cut pre-service officer training in half from six to three months and removed a requirement that officers have any college credits. And the ranks from which these officers must be promoted were found by another city watchdog to also be inadequate; their repeated independent audits indicated a third of the 5,600 people hired between 2015 and 2018 should not have been.

A few months ago, after a strange Rube Goldberg arrangement to manage the jails failed, involving parallel civilian and uniform teams, each with different lines of command, the City agreed to apply for an order to permit it to hire wardens from outside. Importantly, and fatally, however, they did not ask to hire from outside the much-needed and more numerous deputy and assistant wardens and captain roles, necessary to ensure that the Wardens are successful — a point not lost on the U.S. Attorney at the November conference.

Why this partial solution? We do not know for sure, but it is striking that the deputy wardens, assistant deputy wardens and captain positions are union jobs, while the wardens and the 38 top-level hires including deputy commissioners (9), associate commissioners (7) and assistant commissioners (22) are civilian positions. To hire that full complement of uniformed officers would require a negotiation with the union and a change or waiver of the rules that the city is either unwilling or unable to accomplish. 

A cynic, or simply an observer with an unvarnished view of the quagmire of the last eight years, might speculate that the administration has traded management stability and the reduction in violence that goes with it, for labor peace. Ironically, this trade has not and will not bring better conditions for members. But without this effort, it will not matter how many deputy, associate and assistant commissioners are hired. It is sound and fury. An entity or person bringing a fresh and apolitical approach to the history of obligation and agreements would be more likely to interpret and intervene in these matters unencumbered.

2. Why can’t accountability and discipline operate without fear or favor?

While high standards in hiring, training and management are the irreducible minimum to a well-run institution and a professional workforce, these cannot be sustained without an impartial and consistent system of accountability. If officers do not believe not only that their work is important and valued, but also that transgressions will be consistently and fairly addressed, management will be undermined and corroded. Here again, the pull of union politics and the operations of management intertwine in a way that undermines the safety of all in the jails but is not explicitly diagnosed in the reports to the court.

The most egregious recent case is that of Captain Rebecca Hillman. In November 2020, as an incarcerated person started to hang himself in full view of officers, she both instructed an officer not to cut him down and refused to do so herself, then lied about her actions. The man was left hanging until he was dead. In this case, the Manhattan District Attorney charged Hillman with criminally negligent homicide and she was convicted this year after testifying that she just thought the man was joking.

But in the two-and-a-half years between this death and her conviction, Hillman continued to collect a full paycheck, with only a 28-day suspension. Why? While the complex of agreements and laws allows that officers may be suspended until the conclusion of a felony prosecution, a handshake agreement between the captains’ union and the DOC, reached years before the Hillman case, limited Hillman’s suspension to 28 days in cases of captains accused of felonies.

The corrosive arrangements at work in the Hillman case are evident in the systemic and unremediated failure over the past year of the division of the Department responsible for accountability and discipline. The Investigations Division (ID) is presided over by a deputy commissioner and is responsible for investigating all staff misconduct. It is the integrity arm of the DOC. Over time, the federal monitor increased ID’s responsibility as it became clear that the supervisors of the individual jail operations had failed to identify and punish staff misconduct consistently, or in an unbiased fashion. Significantly, the monitor required ID to investigate every use of force, uses of force being the main benchmark of the consent decree litigation.

On January 3, 2022, the first day of the new administration, the new DOC commissioner fired the Deputy Commissioner of the Investigations Division after she refused to dump thousands of cases to clear a backlog. (That Deputy Commissioner is Sarena Townsend, one of the authors of this piece.) The only way to “clear” the cases was to plead them out to charges less serious than the conduct warranted. 

Over the course of 2022, several things happened that significantly weakened the ID’s performance, corrupted its management and further undermined confidence in fair and impartial accountability. First, the number of investigations of use-of-force cases dropped precipitously as ID failed to investigate them. Then, the pattern of “cheap” pleas, that is pleas to minor charges in cases of significance, accelerated significantly. Third, the structure of the ID, which ensured that investigators had the benefit of lawyers working side by side and that use of force investigations were hardwired into the ID management priorities was dismantled, separating out — and weakening — key elements of the Department. Finally, the staffing of the Department was hollowed out with investigators and supervisors dropping by 48% between January 2020 and April 2023. 

All along the way there was a striking lack of curiosity by the commissioner — even in the face of repeated questions by the monitor — as to why performance was so, to be generous, lackluster. Escalating concern and repeated questions from the monitor that got no answer from the Department led to a formal request. Two months later, the monitor got his answer. To his voluminous set of questions and concerns, the Department offered a thin two-page memo, a back of the hand that was not lost on the monitor. Eventually, on the Friday that the monitor’s April report was to be filed, the deputy commissioner resigned.

Are these problems attributable to a single bad apple or to a feeble structure? Are these failures a result of ineptitude and carelessness? Or is this also a malign bargain for union peace? (That is, the department signals it will not prosecute cases, and when it does, it will offer light penalties, in order for the union or union leadership to be satisfied). Unions rightly and essentially are zealous advocates for their members. But a corrupt system corrupts absolutely and undermines the confidence and the safety of all.

While all of us as former government officials believe strongly in the importance of letting government govern, there comes a point — and we believe we are at that point — where some other power and authority is required that can conduct business unbiased and at arms-length, untrammeled by past agreements, associations or sense of future debts. We believe the court, the City, the people who are held and who work in the jail and all New Yorkers would benefit from the injection of clarifying contextual information about the history and causes of the current crises. This would provide a foundation for finding a more effective and durable remedy. We offer these questions as a place to start:

• Over eight years of stringent and knowledgeable monitorship, conditions have deteriorated significantly. What powers beyond those that the monitor has could assist the city in reaching compliance? What other governance structures, over which the court has influence, could assist the City and the Department to improve on reductions in violence?
• At the current trajectory, what is the estimated timeline to return back to the levels of violence at the time of the consent decree?
• What are the structural obstacles to reducing violence to 2015 levels and lower?
• What role do union agreements, city and state laws and regs impede the City’s ability to make change?
• What are the processes, systems or dynamics that if changed today would immediately reduce violence and keep it low for the long term?
• What will the Department do to strengthen recruitment and training?

* Unless otherwise noted, the facts referred to in this paper can be found in the reports here and here.