Judge to DOC: Who is in charge?
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Who is in charge of Rikers Island and the Department of Correction? Federal Judge Laura Swain, who is currently considering whether or not the city should maintain control over the jail, said she’s not sure. Eagle photo by Jacob Kaye
By Jacob Kaye
Who is in charge of the city’s troubled Department of Correction? The judge considering whether or not the city is capable of running Rikers Island wants to know.
In a scathing order issued late Thursday, federal Judge Laura Swain demanded the DOC answer a number of questions about the agency’s leadership team, as well as accusations that, in defiance of a court order, it misled the federal monitor about a recently-opened unit on Rikers Island.
Swain, who received a formal filing from the Legal Aid Society requesting the city’s dangerous jail complex be taken over a court-appointed receiver on Friday, also outright asked the correction department whey they believe they shouldn’t be held in contempt of court for its “failure…to communicate transparently, proactively, and accurately with the monitoring team.”
It’s the first communication from Swain since Mayor Eric Adams announced that DOC Commissioner Louis Molina would be promoted to an assistant deputy mayor role within City Hall, leaving the future of the DOC’s leadership unknown.
The Adams administration has yet to announce Molina’s successor, nor have they announced what day Molina’s transition will take place – they have, however, said he’s expected to move to City Hall at some point in November. Though Molina is expected to have some influence over the DOC in his new role, it’s unclear just exactly what or how much he’ll continue to directly lead the department.
The leadership change doesn’t appear to have inspired confidence in either federal monitor Steve J. Martin or Swain.
“The court is disturbed that the conditions of the jails at Rikers — which were already notoriously dangerous — continue to deteriorate, and that effective administrative reform remains elusive, despite the clear requirements detailed in the consent judgment and recent court orders,” Swain said in her Thursday order.
Swain’s order came in responses to a letter filed by Martin earlier in the week in which he said that an Arson Reduction Housing Unit designed to reduce violence in the jail was “opened without consultation or notification to the monitor despite the fact that such consultation is required by the Nunez Court Orders, despite repeated requests from the monitor that the department do so, and despite a commitment from department leadership that such consultation and notification would occur prior to implementing any such unit.”
In her order, Swain said that the monitor’s letter “particularly in light of the current commissioner’s recent announcement of his intent to resign…raises profound questions that demand answers about the management of the department.”
Martin has for months accused Molina and others in the DOC’s leadership team of blowing off collaborating with the monitoring team. Following each accusation, Swain has reprimanded the department.
However, last week’s accusations from Martin and Swain’s response appear to be ratcheted up a notch.
“It is becoming increasingly difficult for the monitor to do the work required of him by the Nunez Court Orders,” the monitor said in the letter. “Sustained and chronic institutional resistance and recalcitrance toward court ordered reform is an insurmountable impediment to any monitorship.”
According to Martin, the monitoring team received on Nov. 14 an anonymous tip regarding the opening of the new restrictive housing unit the day prior.
Less than a week prior, the DOC told the monitor that the unit was still in the “early planning stages” and “assured the monitor that he would be consulted prior to the opening of the unit,” according to the monitor’s letter.
Nonetheless, five detainees were being housed in the unit shortly after, though the monitor said that he believed their placement there was “arbitrary.”
“The unit’s operation guide, subsequently provided by the department, is poorly written, haphazard, vague, and ambiguous,” the monitor’s letter to Swain read. “The written guidance is not dated or signed by any department leadership. It is unclear who developed these procedures and who authorized opening the unit.”
“The authorization by department leadership to open and operate this unit under these conditions is deeply troubling,” the monitor added.
The unit was shut down a day after the monitor raised concerns about it.
According to Martin, DOC leadership defended the move and said that their “intent was not to disregard the monitoring team’s approval but to show a proactive approach to the agency’s progress.”
In response, the monitoring team said that they felt it was “unclear how the department’s interest in demonstrating ‘a proactive approach to the agency’s progress’ precludes the department from consulting the monitor, especially when it affirmatively agreed to do so and is required to do so by the Nunez Court Orders.”
“It is further unclear why the department’s stated interest in ‘proactively” addressing issues was then not proactively reported to the monitor,” the monitor said to Swain. “Finally, the department’s interest in ‘show[ing] a proactive approach to the agency’s progress’ is not a basis for the department to elect not to provide information the monitor requested or not to consult/seek approval of the monitor under the Nunez Court Orders.”
“This explanation for the failure to consult appears to be yet another attempt by department leadership to deflect responsibility for its obligations,” Martin added.
In her Thursday order, Swain demanded the DOC provide her with the names of the people who authorized the opening of the unit, as well as the names of the people who were responsible for telling the monitoring team about the opening of the unit.
She also ordered the DOC to tell her the “names of the individuals who are currently functioning as commissioner and senior deputy commissioner of the department, as well as when — and what — changes in those personnel are contemplated.”
The city has until Nov. 28 to respond to Swain’s order.
A spokesperson for the DOC said “the department is working diligently every day to improve the safety of its facilities, including efforts to reduce fires started by persons in custody.”
“The department will continue to work with the monitoring team on the shared mission of improving the safety of its jails and will respond in court as directed,” the spokesperson added.
The DOC’s most recent struggle with the monitor likely won’t aid them in their attempt to defend themselves against federal receivership.
On Friday, the Legal Aid Society formally filed a contempt motion and demanded that Swain order a federal receiver – or a court-appointed third party to take over control of Rikers Island, where over two dozen people have died in the past year and 11 months.
The filing, which is over 1,00-pages long, argues that the city has failed to comply with the consent judgment reached in the Nunez case in 2015, and that all other attempts to bring them into compliance with that judgment have similarly failed.
“The levels of violence and brutality in the city jails that exist today were unimaginable when the consent judgment was entered in 2015, and the city has demonstrated through eight years of recalcitrance and defiance of court orders that it cannot and will not reform its unconstitutional practices,” Mary Lynne Werlwas, the director of the Prisoners’ Rights Project at The Legal Aid Society, said in a statement. “A receiver with the authority and mandate to make the difficult decisions the city will not is needed to secure the progress that two administrations and multiple Correction commissioners have all failed to achieve, and protect the constitutional rights of all people incarcerated in New York City jails.”
A Law Department spokesperson told the Eagle in a statement on Friday that the Adams administration “has made progress in many areas to address the deeply rooted problems at Rikers that have existed for generations.”
“We are committed to building upon that work and we do not believe a receivership is the solution to fixing the city’s jail system,” the spokesperson added.
The request from the Legal Aid Society was expected, and has been in the works for the past several months.
The Legal Aid Society first accused the DOC of being out of compliance in July, an accusation the DOC denied. After meeting several times to discuss the allegations, the department and public defense firm were “not…able to resolve the dispute.”
What comes next is expected to be a potentially years-long process.
The DOC will next appear before Swain in early December. However, it’s not required to respond in full to the Legal Aid Society’s contempt motion until early January.
Swain is expected to hear the final arguments over receivership in February, and her decision may follow shortly after.
If she decides to take the extreme measure of ordering a receiver, it could be a year or more before one is appointed, their role defined and officially put in control of the jail complex, which is set to close in 2027, per city law.
