Reuven Blau, The City
The city’s troubled jail system moved one step closer Tuesday to a total takeover by a court-appointed federal receiver.
The ruling by Laura Taylor Swain, chief district judge for the U.S. District Court for the Southern District of New York, could lead to control of the city Department of Correction being stripped from Mayor Eric Adams and handed to an outsider known as a receiver.
Swain ruled that Manhattan federal prosecutors and lawyers from The Legal Aid Society could make their case this summer via legal briefs for transferring part, if not all, of the department to a third party.
Legal experts say a receiver can be granted extraordinary powers and would technically not be required to follow union contracts — meaning everything from job protections to work hours could be on the line across the correction department.
During an online “emergency status conference,” Swain questioned the ability of Correction Commissioner Louis Molina to reform the department — and to honestly report what is going on behind bars.
“For years now, there has been a situation that is, in the deputy monitor’s words, ‘not normal’ and ‘not acceptable,’” Swain said.
“That has changed my confidence in the commitment of the city leadership to be all-in…and [to be] working with the monitoring structure that the court has imposed in good faith,” she said.
Her confidence, Swain added, “has been shaken by the incidents of the past few weeks.”
The federal monitor overseeing the department issued a special report right before Memorial Day weekend citing five disturbing cases, including that of one detainee who jumped to his death from atop a mental health unit on Rikers Island.
Tuesday’s ruling is in contrast to Swain’s decision in December, when she blocked Legal Aid’s push to yank power from Molina and the mayor.
Her decision on a possible appointment of a receiver is likely months away and is based on the upcoming report by federal monitor Steve Martin and his staff, according to legal experts. The federal monitor and his team have been in place since 2015.
If Swain decides a receivership is necessary, she will likely ask both sides — The Legal Aid Society, plus the feds — as well as the Adams administration to submit a list of acceptable candidates for the role, according to lawyers who have researched the process.
Swain then probably will try to get the two sides to agree on a selection, based on prior similar cases.
Despite their universal power, receivers at other jail systems have usually worked to secure union support before making major decisions.
Notably, Martin, the monitor, and a representative for Southern District U.S. Attorney Damian Williams have not called for an outright takeover by a receiver.
The federal prosecutor’s office joined the class action case in August 2014 after finding “extremely high rates of violence and excessive use of solitary confinement for adolescent males” at Rikers.
On Tuesday, Jeffrey Powell, an assistant U.S. attorney, noted that Molina has failed to consult with the monitor on key issues and ignored requests for information.
“This, of course, undermines the entire structure of court oversight,” Powell told Swain, saying the situation “simply could not continue.”
“It is deeply disturbing that almost eight years after the consent judgment was entered in this case, the monitor feels that he must resort to seeking a court order to ensure that he receives timely and accurate information from the department, including basic information about persons who have died in custody, or who have sustained serious injuries,” Powell added.
He also said he was “deeply concerned” by Molina’s comments defending the actions of officers involved in the case of James Carlton, who THE CITY first reported was paralyzed after officers tackled him to the ground as he was shackled on May 11.
In court, Molina defended his 18-month tenure, citing a drop in deaths from 19 last year to three so far in 2023. He also pointed out the number of officers calling out sick has dropped from more than 1,000 per day during the peak of the pandemic to under 100.
But Powell countered that any improvements are not enough.
“What cannot be disputed is that every safety and violence indicator is substantially worse now than it was when the consent judgment went into effect in November 2015,” he said.
More Violent Than Pre-Pandemic
The DOC is currently on pace to have approximately 350 stabbings and slashings this year, records show. That’s down from the 420 stabbings reported in 2021 and 468 stabbings reported in 2022, Molina noted.
But this year’s projected total is more than the number of stabbings and flashings that occurred in the combined three-year period from 2017 to 2019, when the department’s population was significantly higher, according to Anna Friedberg, a deputy monitor.
On Tuesday, Swain cited the three letters filed by Martin, which slam Molina and his staff for suppressing information about five recent jailhouse incidents, including one where the shackled detainee suffered a broken neck and was paralyzed following a takedown by officers.
That detainee, Carlton, 40, struck his head on a bench, a plastic container, a partition and the floor on May 11 inside the Vernon C. Bain Center in The Bronx, according to jail records cited by Martin.
Carlton was being escorted by an officer when he balked at an order to exit an elevator inside the five-story floating jail barge in the East River, according to the Department of Correction’s initial report of the incident.
A specialized “probe team” then came to the area, put him on a gurney, and moved him to a search area.
After a body scan search, hand-held video showed that Carlton stood up as officers tried to help him put on his shoes — a task difficult to do alone while his hands were cuffed behind his back and legs were shackled, the Martin report said.
Carlton’s leg “jerked towards what appeared to be the helmet of one of the staff members assisting him with his shoes,” the report said. “Multiple staff then took the individual to the floor.”
Jail officials have disciplined at least five staffers for failing to properly escort Carlton or secure a gate inside the jail barge, and for failing to report his injuries and transfer via ambulance to a hospital, Martin’s latest court filing revealed.
On Tuesday, Swain asked Molina about the incident and his assertions that officers were in the clear.
“How do you reconcile the statement that there’s no wrongdoing with the fact that apparently internal charges have been brought?” Swain asked, noting Carlton was “banged” on the ground.
Molina said his comments to the media specifically addressed the initial takedown to stop Carlton’s attempted escape when he raced out of the elevator.
“Inadvertently, it appears that the person in custody’s head may have hit a bench, may have hit a floor,” he added, referring to the second takedown. “But preliminarily, the actions of those officers … I don’t find concerning as of yet, but the investigation is ongoing.”
Swain appeared dismayed by Molina’s response.
“So you don’t find it concerning that a person was taken to the floor, cuffed behind in shackles, to a concrete floor, and being taken down face first?” she asked Molina.
The commissioner noted the officers have made their case to jail investigators looking into the May 11 encounter.
At the start of the court hearing, Mary Lynne Werlwas, director of the Prisoners’ Rights Project at Legal Aid, argued that the “entire process is unworkable” because city jail officials are not providing accurate information.
“This process cannot work when we cannot trust … fundamental elements of what the city is saying,” Werlwas said.
As an example, the commissioner vowed to remove rogue staff from the department’s emergency services unit, she said, but that never happened.
The department also has failed to properly improve the intake system where detainees have gotten stuck for days without beds, Werlwas said. Over the last year, jail officials promised to track each person as they make their way to a housing unit. That never happened and now jail officials are not planning to create a tracking system, according to Martin’s latest reports.
The only possible solution is the appointment of a receiver, she argued.
“The monitor cannot be in all places at once,” Werlwas said. “The monitor cannot verify every important factual assertion in the city name. The monitor does not have the power to implement its recommendations.”
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