Lawmakers question DOC’s ability to get detainees to court

Paul Shechtman, general counsel for the Department of Correction, testifies before the City Council on May 30, 2023. Photo by Gerardo Romo / NYC Council Media Unit

By Jacob Kaye

While Department of Correction officials say that their ability to get detainees to their court appearances has markedly improved over the past year, others say the corrections agency isn’t being forthcoming about its practices.

Appearing before the City Council on Tuesday, the top attorney for the city’s correction’s department said that a change in practices has resulted in an increase in the percentage of detainees it produces for court on a daily basis. The uptick comes after the DOC’s court production levels dropped precipitously during the first year of current DOC Commissioner Louis Molina’s tenure – a drop the agency blamed on an “epidemic” of detainees refusing to leave their cells and go to the courthouse.

But councilmembers, advocates and public defense attorneys questioned the DOC’s newfound success during the Tuesday hearing, claiming that the DOC’s data likely doesn’t reflect the true nature of the situation and that detainees are still missing court appearances in droves.

The hearing, which was held by the Council’s committees on criminal justice and oversight and investigations, centered around a new bill from the chairs of those committees – Councilmembers Carlina Rivera and Gale Brewer.

The bill would require the DOC to record audio and video of instances in which a detainee refuses to attend a court appearance. According to the bill, the video and audio would then be uploaded to a database and be available to defense attorneys. The legislation would also require the DOC to report monthly on its court production success rate.

Paul Shechtman, the DOC’s general counsel, told councilmembers on Tuesday that while he was told that giving his opinion on the legislation was above his “pay grade,” he doesn’t think the bill is needed.

“I don't think it's necessary given the current state of affairs,” Shechtman said.

According to the attorney, the DOC produced defendants for their court appearances 96 percent of the time this month. That’s compared to several months last year, when the DOC’s court production rate sat around 72 percent.

“The good news is the court production has improved significantly,” Schechtman said. “Until recently, it has not been the department’s strong suit. That is no longer the case.”

Among the elements of the bill the attorney said are not necessary was the requirement that the DOC report court production data monthly.

But there were disputes over the data presented by Schechtman on Tuesday. The DOC collects the data by hand, and lawmakers said that the outdated methods have left an inaccurate picture of who is and isn’t produced for court. Sometimes, defendants are sent to court when they are not on a judge’s docket that day and other times defendants are told by DOC officials that they don’t have a record of a court appearance that day when in fact there is one on the books, according to advocates.

Shechtman defended the increase in court production on Tuesday and attributed it to a new approach to getting detainees out of their cell, into a bus and through the courthouse doors.

The DOC recently began implementing a “soft hand” approach, which allows correctional officers to take a detainee by the arm and bring them to the bus in cases where the defendant does not want to go to court.

Since the practice was implemented in March, the number of refusals to go to court has reduced from around 1,170 per month to a little less than 500 in May, according to Shechtman.

Though he attributed the “soft hand” approach to the reduction in refusals, he also said that the practice was only implemented three times in May. Shechtman said that instead, the policy has acted as a deterrent.

“If you say to people, ‘Get on the bus,’ and if they know you're going to grab them by the arm and put them on the bus, they go on the bus and you don't have to use force,” he said.

But lawmakers and others testifying on Tuesday said that they believe that issues in producing defendants for their court appearances still plagues the department and that testimony from Molina given earlier this year misled councilmembers on the DOC’s court production abilities.

“Defense attorneys tell us that DOC frequently fails to bring their clients to court while chalking these absences up to refusals, but the attorneys have an enormously difficult time accessing proof their clients refuse to come to court,” Brewer said.

“They also have evidence that what DOC staff claim are refusals to appear, may be more like mistakes on their part – we don't know,” she added.

Marva Brown, an attorney with the Legal Aid Society, said that on “too many occasions, I've sat in court on a scheduled court appearance date, waiting for hours on end for an incarcerated client who is simply not produced to court.”

Brown said that she and her colleagues have been told that the reason their client wasn’t in court was because they refused, only to learn later that that wasn’t the case.

Brown cited the case of a Queens man she referred to as “Mr. M,” who was not produced for court on the day of one of his appearances, and whose attorneys were told that he had refused to get on the bus. However, after the attorneys requested video of Mr. M’s refusal, he “was miraculously produced to court on the next bus from the island.”

The late arrival or the failure to arrive at all impacts all involved in the case, Brown said.

“This leads to delays in the criminal process, wasted time for loved ones and witnesses and increased periods of incarceration on matters that would otherwise be resolved had the client been produced to court,” Brown said.

For the defendant, missing one court date could mean they don’t appear before a judge for another several months – on average, detainees have court appearances every 57 days.

“That obviously artificially inflates the population at Rikers,” Zachary Katznelson, the executive director of the Lippman Commission, said during Tuesday’s hearing.

At several points during Tuesday’s hearing, Shechtman and others said that strides also need to be made in the Office of Court Administration’s handling of cases. Delays in cases are not only attributable to the DOC’s ability to produce defendants, but also to judge’s abilities to hear them, the attorney said.

There are currently around 500 detainees on Rikers Island who have been held there for over two years. Around 738 have been detained for between one and two years. Nearly all of those being held for long periods of time have yet to go to trial.

“It is DOC that is solely responsible for the safe and timely transportation of Court defendants,” Lucian Chalfen, a spokesperson for OCA, told the Eagle in a statement on Tuesday. “The Courts have been working closely with DOC to coordinate and improve its ability to bring incarcerated individuals to Court reliably and on time.”

Chalfen added that many of the defendants that have been awaiting a trial for several years are involved in “quite complex” cases “contrary to a comment made by a DOC witness,” and that the court system has recently begun implementing a number of programs to prioritize older cases.

“To the extent that DOC indicated that the courts are causing delays because it takes too long to bring these cases to resolution, the court tries cases when both sides – prosecution and defense – are ready for trial,” Chalfen said. “Judges are often waiting to try any case that is ready and the courts do not turn away cases where both sides are ready to go.”