Rikers receivership process may begin as soon as late summer, judge says

A federal judge said Tuesday that she’d consider allowing proceedings to install a federal receivership on Rikers Island to begin later this summer. AP file photo by Seth Wenig

By Jacob Kaye

A federal judge said Tuesday that her confidence in the Department of Correction’s ability and commitment to reform troubled Rikers Island has been “shaken” and that she’s open to hearing arguments about why the jail should be handed over to a federal receiver.

The extraordinary ruling by Judge Laura Swain, who serves as the chief judge of the United States District Court for the Southern District of New York, marks the potential first step toward federal receivership, a judicial order that could see the city stripped of its control over Rikers and have it handed over to a court-appointed authority.

Presiding over an emergency conference in the decade-old civil rights case known as Nunez v. City of New York on Tuesday, Swain told attorneys with the Legal Aid Society, which represents the plaintiff class in the case, that they will be allowed to propose getting the ball rolling on the receivership process during the case’s next conference, which is scheduled for early August.

It’s not the first time federal receivership has been threatened in the case, and Swain has previously rejected efforts from the Legal Aid Society to get a receiver implemented. The judge noted the extreme nature of the measure at the close of the three-hour conference on Tuesday.

“Receivership would be an extraordinary step here,” Swain said.

But recent reporting by Steve J. Martin, the federal monitor appointed to oversee conditions in the jail complex in 2015, pushed Swain to reconsider the measure, she said.

Martin’s recent reports suggest that Department of Correction Commissioner Louis Molina and other top officials in the department have become less and less communicative with the monitoring team in recent months. In one of the reports, the monitor noted five incidents, two of which were fatal, that he said were not properly reported. Taken together, the monitor said that his belief in the city’s dedication to complying with the various court orders stemming from the Nunez case is wavering.

“One concerning trend has emerged where the department is no longer operating in a transparent manner,” Martin said, adding that at times, he feels the department has been operating in an “obstructive manner.”

“The current state of affairs in the jails remains alarming,” Martin added.

Swain agreed on Tuesday.

“My confidence in the commitment of the city leadership to be all in on recognizing the need and in working with the monitoring structure that the court has imposed in good faith and candor has been shaken by the incidents of the past few weeks,” Swain said.

“While I am not ready to authorize or structure receivership motion practice…I am willing to let the parties explore further and seek to concretize the nature of any receivership motion practice proposal and the set of issues that it would implicate,” she added.

Following the conference on Tuesday, the Legal Aid Society left little ambiguity as to whether or not they’d be seeking a receivership in August.

“The Department of Correction has had nearly eight years to bring the city jails into compliance with the federal court’s orders, but conditions today are indeed worse than they were when the court ordered improvements in 2015, compounded by the city’s so-called action plan that has utterly failed to secure the progress that officials promised,” the public defense firm said in a statement.

“Between rampant excessive force, an astonishing number of deaths and serious injuries, and the department’s untruthfulness and efforts to shield its incompetence from outside eyes, only an independent entity such as a receiver can deliver on what the city was unable to accomplish,” they added. “Absent a radical turn-around that the city has time and again demonstrated a lack of capacity or willingness to fulfill, we fully intend to pursue a motion for receivership consistent with the court’s directions at today’s conference.”

Talks of a federal receivership first began last year, during what was the deadliest year on Rikers Island since the creation of the consent decree nearly a decade ago.

Swain rejected the motion for receivership from the Legal Aid Society and instead ordered the city and the monitor to together craft an “action plan” designed to correct the violent conditions within the jails and poor management practices within the DOC.

When granting the action plan on June 15, 2022, exactly a day shy of a year before Tuesday’s conference, Swain said that should the plan not show results or be followed, she’d consider further action, including a potential receiver.

“This action plan represents a way to move forward with concrete measures now to address the ongoing crisis at Rikers Island,” Swain said in 2022. “The court has approved the proposed measures contained with the action plan, in full recognition that further remedial relief may be necessary should defendants not fulfill their commitments and demonstrate their ability to make urgently needed changes.”

Swain said on Tuesday that she was “disappointed that the state of affairs [on Rikers Island]” had necessitated the conference and the potential need for further court orders.

Attorneys with the Legal Aid Society said during the conference that a receivership is not only necessary because of the breakdown in communication between the department and the court-appointed monitor, but because, by a number of measures, Rikers Island is in poorer condition than when the court originally ruled that detainees’ constitutional rights were being violated on the island.

While use of force incidents, stabbings and slashings and other measures of a jail’s dangerousness have decreased when compared to 2021, a year of acute crisis on the island, the measures currently remain higher than they did in the year prior to the beginning of the consent decree.

During the conference on Tuesday, an attorney with the city and Molina argued that to show improvement, the current figures should be compared to the peak of the crisis, in 2021. However the monitor, the Legal Aid Society and a representative with the U.S. attorney for the Southern District of New York argued that instead, the only real comparison should be to when the civil rights case kicked off in the first place.

“The city argues that the clock should restart with the appointment of a new commissioner,” said Mary Lynne Werlwas, the director of the Legal Aid Society’s Prisoners’ Rights Project. “But the goal of this…was to stop the game of whac-a-mole.”

Martin and his monitoring team are currently working on a report, which will be issued on July 10, that details how well or poorly the department has adhered to the action plan.

Attorneys with the U.S. attorney for the Southern District of New York said on Tuesday that they would refrain from taking a position on receivership until after the report had been issued. The office joined the call for receivership last year, but also signed on in support of the action plan just before the judge approved it.

The commissioner, the mayor and attorneys for the city have and remained opposed to the installation of a receiver.

During the conference on Tuesday, Molina made little to no mention of the potential of receivership, but did defend his and his staff’s behavior, particularly in regard to the five incidents in the report, as well as the alleged lack of communication with the monitor.

During his comments and during questioning from the judge, the commissioner diverted blame onto previous administrations, misunderstandings and breakdowns in communication with Correctional Health Services, which provides medical services to detainees and falls under the city’s Department of Health and not the DOC.

“The department we inherited was on the brink of collapse,” Molina said. “When we think about what existed in January 2021 and 2022, and where we are today, the department has improved significantly.”

One of the few times the commissioner brought up receivership or the future of Rikers, which is set to close in 2027 per city law, was after Swain questioned him on the monitor’s assertion that Molina had requested that several of the incidents shared in the report not be shared with the court.

“We have a number of groups that just want to see the department fail,” the commissioner said. “I don’t take a position on whether or not Rikers Island should close or stay open, but we still have a responsibility to stabilize the system.”

Though the question of receivership was pushed back until later in the summer, Swain did approve the creation of a Nunez manager on Tuesday. The manager, who will work for the DOC, will be exclusively responsible for coordinating communication and reporting between the monitoring team and the department.

During the appearance on Tuesday, the DOC attempted to get the judge to allow the department full control over who is hired for the position and to allow the eventual manager to have duties beyond Nunez monitorship. Swain rejected both of those requests.

The next conference in the case will be held on Aug. 10.