Are NYC's Jails Ungovernable?

Elizabeth Glazer: Hello, everybody, and welcome to our forum today, glad you're here. And welcome to High Noon in New York City, or at least that's what it feels like when it comes to the city's jails. They keep hitting what must be bottom, only to go lower. I'll give you just one fact that stands in for many facts. 26 people have died since last year, and the way they've died says everything about the complete collapse of the jails in management. One person slit his throat — he had a razor in the jail — in front of officers and bled out. Another man choked on an orange as his fellow detainees tried to get attention in what was essentially an unstaffed unit. All of this is even more shocking because jails are supposed to just house people temporarily, people who are presumed innocent as they're awaiting the resolution of their cases.

Next week in a courtroom in Manhattan, things may begin to change. The city has been operating under a federal consent decree that they signed eight years ago that was aimed at stemming the brutality. The court is going to bring together all the people who are involved in the suit; the Legal Aid Society, who represents people in jail; the United States of America, represented by the US Attorney and on the other side, New York City and its jails. Unusually, the court has ordered the commissioner of the department himself, not just lawyers, to attend. So the court is going to decide whether to start a process that could result in taking away from the City the power to operate the jails. Instead, the court would confer that authority on what's called a receiver, a person appointed by the court who has the power not simply to recommend change, but to effect the jails even if it means changing contracts and laws.

I'm Liz Glazer. I run a policy venture called Vital City, and I'm really pleased to be able to join partners at Columbia Law School, at the CUNY Institute for State and Local Governance and Campaign Zero in presenting today's forum. Together we've presented two other forums — this is the third — that try to untangle and maybe even solve these problems. Why are the jails in such terrible shape, and what will it take to fix them? I'm going to give cliff notes about how we got here. My colleague, Hernandez Stroud, who is counsel at the Brennan Center, is going to spend a few minutes on what a receivership is and how it's worked and how it hasn't. And then at the end, Michael Jacobson, a former New York City Corrections Commissioner, will close us out. In between we have two incredibly distinguished groups of panelists and two stellar moderators. Jan Ransom from the New York Times is an investigative reporter who has made front page news with insightful reporting on the problems in the jails, and she's going to moderate the first panel on what it takes to govern the jails.

Errol Louis is the city's foremost commentator on politics, policy and people. He hosts a daily show called “Inside City Hall.” He writes regularly for New York Magazine, among many, many other things, and he's going to moderate the second panel on why oversight is important. They will take a few questions from you all. You should just put the questions in the Q&A. And for those that we don't get to, we'll put answers online at vitalcitynyc.org. The full bios of all our panelists and data and writing from many of them are available on vitalcitynyc.org as well.

The current debate over receivership is often framed as a competition. "Will the city lose control?" But really, the only competition here is for the best structure for the wellbeing of those people who are detained and who are working in the jails. That has not been going well, and not just in this administration, but for decades, stretching over five consent decrees through the terms of eight mayors and 24 corrections commissioners. The consent decrees have covered every imaginable aspect of daily life, but violence is the thing, because when there's so much violence, there can't be any semblance of a normalized life, not for the people detained, nor for those staffing the facilities. Everybody is walking point with ever-escalating tensions erupting into violence at the slightest provocation.

As the Federal Monitor has underscored, the amount of violence at Rikers and the city's jails is not normal, it's not typical and it's certainly not constitutional. Even under the current consent decree, which is aimed at fixing what the then-U.S. attorney called the “culture of violence,” things have gotten much, much worse. Deaths are now at three times levels declared unconstitutional in 2015. Slashings and stabbings are at six times that level. And you know things are at an all-time low when the dream is to get back to the merely unconstitutional levels of 2015.

How could conditions be this bad, and why don't they get better? Well, it's not a question of money. The department spends more than a billion dollars a year, amounting to about $500,000 per person detained per year. And it's not a question of staffing. The city jails are one of the most richly staffed jails in the nation, maybe in the world. As the monitor has noted, it is a question of management or the lack of it, a non-functioning discipline system, broken security protocols and union rules that hamper how and where people can be assigned or who can be hired, among many, many other structural problems.

Concerns over these fatal conditions reached a fever pitch in March of last year when the monitor issued a five alarm fire special report noting that the conditions continue to spiral out of control with imminent harm to those detained and to staff. Since then, the jails have been operating under an emergency action plan. But again, things have just gotten worse. Last year ended with the highest rate of deaths since 1996 and the highest rate of stabbings and slashings since 1993. And then in May of this year, it became crystal clear that it was not just that the City was unable to implement change, it was unwilling to do so. Over the course of just nine days this past May in the jails, two people died and three people suffered hideous and life-altering injuries. The city hid these incidents from the monitor, who only discovered them from newspaper accounts and tips.

Essentially, the City stuck its tongue out at the monitor and the court, declaring it wasn't required to report this key information, bringing into the open what has been a troubling record since last January of hobbling oversight authorities and withholding information. So, the question became: If the court can't trust whether the information it's receiving is a full and unvarnished account of conditions, how can it ever hope to solve them? So yes, it's High Noon in the sense of a turning point, but receivership is not without its risks. The question is: Compared to what we have now, does receivership offer some hope of a route to constitutionally acceptable conditions? Hernandez, over to you for more on receivership, and then we'll go right into our panels, first with Jan Ransom.

Hernandez Stroud: Thank you, Liz. As Liz mentioned, I'll provide a brief primer on receivership. For me, a simple hypothetical clinches the idea. Imagine you are, like me, no fan of the dentist. I’m sorry to any dental professionals who've joined us, it's nothing personal. But in any case, suppose that for months, you have a really bad toothache. If you've experienced this, you know how excruciating a bad toothache can be. So, say you decide to take Orajel and Tylenol, but much to your chagrin, the toothache doesn't get better. In fact, it gets worse, and it gets so bad — unbearable, in fact — that you're left with no choice but to face your mortal fear, the dentist. After examining your tooth, the dentist tells you that continuing to take Tylenol and Orajel won't cure your tooth problem and that you need more aggressive treatment. The only remedy short of pulling the tooth is a root canal, and that might not even cure the problem. But at this stage, based on an examination of the tooth, it's the only viable option that might succeed in repairing the damage and saving the tooth.

That hypothetical pretty much captures the essence of a receivership for a prison or a jail. Receiverships for prisons and jails are meant for intractable, difficult situations behind bars where the government has failed to improve conditions after multiple years, after multiple different kinds of efforts and after multiple failures. Before a judge can impose receivership, however, decades of precedent, as well as a 1996 federal law called the Prison Litigation Reform Act (also known as the PLRA) requires judges to be absolutely sure that receivership is necessary. For that reason, there have only been 12 receiverships in all of history in the United States.

After a judge determines a receivership is absolutely necessary and orders it, the judge has great discretion to structure it, but the judge won't want to do that alone. The judge will want to get help from the parties. And one important question is who the receiver will be. For starters, the receiver won't be the Federal Bureau of Prisons — that's a common misunderstanding. The parties will offer suggestions to the judge as to whom the receiver should be. Ultimately, the judge will pick a receiver who seems best suited for dealing with the most severe challenges confronting the jail or prison. So, for example, when it comes to New York City's jails, a complex government agency riddled with decades of complicated interlocking challenges, particularly management and staffing inadequacies, which have given rise, as Liz mentioned, to stunning levels of violence, perhaps you'll pick a person who has run successfully or turned around a complex corporation or business. The receiver could be a former corrections official, a judge or perhaps even the monitor who has been involved in the case.

In some instances, the government might retain some power during the receivership, it might not be a total stripping of power. In other instances, perhaps the receivership is just a partial one isolated to a discreet aspect of the prison or jail, like improving health or medical care. In any case, the judge, based on the challenges, will also decide what powers to grant the receiver. Typically, receivers have quite broad powers. Receivers have made differences. They've stopped overcrowding. They've improved staffing and restructured management. They've improved the delivery of healthcare. They've unlocked funding from legislatures where that funding was unavailable for political reasons. They've also dealt with union leaders who cling to policies that run counter to the receiver's work.

But receivers are also no panacea. A receiver could be the wrong person for the job. The receivership might face unintended consequences. It can't control every particular factor or thing that could affect their success. Of course, when the government gets the keys back to the prison or jail after the receiver's work is over, the government might not fully commit itself to the reforms. I'll leave you with this, and it's to think about why a receivership is a remarkable power. It’s because the government is running a public institution in a way that violates the rights of a stigmatized, unpopular and politically powerless subgroup of people that depend on that public institution. If you think about when else in history we’ve seen a government run a public institution in that sort of way, look back to the 1950s and '60s when innocent Black school children and their families wanted to attend white public schools after the Supreme Court spurned the noxious fiction that separate was equal when it struck down the segregation of school children by race in Brown v. Board of Education.

Receivership then was one of many tools that courts deployed in trying to ensure the dignity of those Black school children. Just as here, it is, and could be, one of many tools that a court has to ensure the dignity of incarcerated people when confined in dehumanizing prisons and jails. It might do a lot of good, or it might not work, but to go back to the hypothetical I began with, it might be the only viable option on the table if everything we've tried has failed to resolve the problem. With that, I'll turn the program over to Jan Ransom who, as Liz mentioned, has been a best-in-class reporter covering Rikers for the New York Times for our first panel. Thank you.

Panel One

Jan Ransom: Thank you, Liz and Hernandez. This first panel will weigh in on a question that many have been asking as of late: "What does it take to govern the city's jails?" We have Stanley Brezenoff, a man of many hats in New York City government, including having served as first deputy mayor under the Koch administration and as chair of the Board of Correction, a jail oversight panel, for several years during the de Blasio administration.

We have Michael Jacobson, who served as the correction commissioner from 1995 to 1998, and is now the director of the CUNY Institute for State and Local Governance. And Hernandez Stroud, who we just heard from: senior counsel at the Brennan Center for Justice at New York University School of Law. And Sara Norman, the deputy director of the Prison Law Office, a nonprofit advocacy group for incarcerated people. The Prison Law Office represents all people in California prisons in a lawsuit that led to the installation of a federal receiver over California's prison medical care.

So, let's dive in. I'd like to start with Michael. You and I have talked many times about the problems facing the city's jails, and my biggest question has always been, how did we get here? As commissioner, you managed to drive violence down. It has always been an issue, but what did you do then, and how were the problems different then compared to today?

Michael Jacobson: Sure, thanks, Jan. Let me start with a little historical context in terms of the differences and then dive into the heart of your question. There are a couple of key differences between now and the early '90s when the system peaked at about 21 or 22,000. That was the population then, severely overcrowded. Today, the population is around 6,000. It had been 4,000 a couple of years ago, but it’s still about a third of the size that it was around when I was there and a little before. Right now, as Liz mentioned, there's about one correction officer for every incarcerated person. Back then, there was one correction officer for every two incarcerated people, and even that was a very high staffing ratio. The staffing ratios have only gotten higher, and, as Liz said, it costs around $500,000 annually. It was a fraction of that years ago.

The other thing that's worth mentioning that’s a huge difference between then and now is the length of stay. The time people spend in jail, especially pretrial detainees, has completely deteriorated over the last two decades. The system length of stay used to be around 40 to 50 days, and it's now closer to six months. You cannot keep people in a jail that long and not expect to have all sorts of problems. When you look at the population now, it's not just that they stay longer, but also that about a third of that population stays for a year or more. About a third of that population stays for two years or more. And then there are several hundred that stay for three years. That is a complete breakdown in any notion of speedy disposition. It's an institutional miscarriage of justice.

That's all at the feet of the courts. I mean, the courts have done a horrible job processing cases. That deserves its own panel, but that one fact is present in almost everything we'll talk about today in terms of violence, missed appointments, deteriorated conditions, et cetera. In terms of violence, as you mentioned, it was incredibly high in the mid '90s and peaked there in some ways. It started to come down rapidly with a lot of concentrated attention. It’s hard to say what exactly was the most effective thing that drove down violence back then, but probably the single most important thing was putting huge amounts of funding into programs, programs of all sorts. Jails were turned into drug treatment facilities. We had horticultural programs, high intensity bootcamps, vocational ed. That was done by switching funding from uniform staff to program staff, and the value of programs in the smooth running of jails is well known.

When you think about what's happening now and the levels of violence that Liz was talking about, nothing else can explain it other than lack of capacity and uniform staff, and leadership of that uniform staff. It's essential to running a safe and efficient jail system. This started about a decade ago, so it predates this administration — they inherited this. The system started bleeding experienced and talented uniform leadership and has never really recovered from that. But the trends that we see, especially recently given the size of the population just cannot be explained by any external factor. That is, is the population different somehow than it used to be? Is it more difficult than it used to be? None of that is true. It's a higher percentage of people there for violence, but it's not more people than there were when the system had three times as many. It's all about internal management and leadership capacity. The challenge for the City is how to build that back up in a way that can safely, efficiently and justly run the city jails.

Jan Ransom: Thank you for that. You touched on this a bit, but is it just the fact that the population is staying there longer that makes the problems at Rikers so intractable, or is there more to it?

Michael Jacobson: No, it’s not just that, but that is incredibly important. I mean, you can't keep people in any jail, much less this jail, for months and years and not expect to see huge problems. It's just something that has to be tackled. It's very difficult to do. No one person controls it. It's not the mayor's job, it's not the governor's job. If it's anyone's job, it's the courts’ job, and they have not risen to this challenge. I think they deserve to be put under huge pressure to do that.

There are two issues facing the system now. I don't think any of them are intractable, but fixing them is going to require short-term strategies to start bending the curve on indicators like stabbings and slashings, missed medical appointments, on-time court delivery, suicides, overdoses and self-harm. But even that's not enough. I mean, it's obviously incredibly important to do that, but given the years of lost capacity and leadership, the department really now has to go through a rigorous, serious and open organizational and cultural change process that's designed to answer some very fundamental questions. What is the purpose of jail? What are the qualifications of staff, both uniform and civilian? How best should they be trained, supervised and disciplined? What kind of personnel, training, policies and procedures will ensure that the jails we have are based on the principle of human dignity?

That's a process that has to be transparent and involve not only a variety of local government agencies, but also labor, community members, civil society and especially those with lived experience. What I'm talking about is a hugely intense and difficult organizational change and redesign process to go through. But, especially given all the problems that we see, and especially because all of this is implicated in closing Rikers and opening new, smaller, well-designed borough based jails, the city cannot move into those jails five years from now with the same staff, the same leadership capacity and the same policies and procedures as it has now. There are short-term issues and hugely important long-term issues, and they both have to be addressed simultaneously, and now.

Jan Ransom: Thank you. I want to direct my next question to Stanley. There's been a lot of talk about oversight. We witnessed this year that the jails’ commissioner takes steps to limit that oversight as it relates to the City's Board of Correction. Stanley, as a former chair of the board, can you talk about the importance of its role in the functioning of the jails?

Stan Brezenoff: I don’t think that speaking from the perspective of the Board of Corrections gives the full picture, but in a sense, the approach that's been taken by the administration to the Board of Corrections early on is symptomatic of the overall approach of believing that if you suppress information, somehow the horrendous problems aren't really there.

But the Board of Corrections is potentially an important institution, an organization that the wisdom of many generations has sought to assure is there. It's an unusual organization because it is both a creature of government and an overseer of government. It is monitoring the rights, the treatment of populations that are not generally the highest priority of governance or of interest to the broader public. But it is testimonial to the city of New York that it exists and that its mission is one of protection of constitutional rights and human rights, and ultimately a test of the humanity of the city.

The Board of Corrections inherently reflects some of the issues that were articulated earlier. Corrections is not the favorite function of a city or even a state. It calls for resources that elected officials would love to see go elsewhere. It has a population that does not enjoy political support, and therefore, the Board of Corrections has been part of a troika where, when things are in balance, delicate balance, it has been effective in using its access to information in making the case for reforms, improvement, better standards and so on. But history is replete with examples of where the government has sought to downplay what have emerged as the facts in any situation. Fortunately, I don't think that there has been much in the way of history that parallels what we're seeing now, which is a combination of denial and Orwellian approaches to describing what is going on. The Board of Corrections serves in a way as an instrument that includes diplomacy, includes brokering and includes vigorous advocacy, but to be effective, it requires the support of the mayoral administration.

Jan Ransom: To that point, with the limitations to accessing information obviously  impeding the Board's ability to perform its duties, what responsibility, if any, does the mayor have to ensure that the Board is able to do its job?

Stan Brezenoff: Ultimately, this is one of those cases where the buck stops at City Hall. Now, I'm not suggesting that the Board of Corrections stand on the steps of City Hall and berate the mayor or present petitions. There are other ways to make the case, but you need some possibility of receptivity at City Hall. I've worn many hats in this arrangement over the years. There has to be some ability for the Board of Corrections, perhaps directly with the department, or with City Hall, to make its case and to advocate vigorously, but to be mindful that there is often a balancing act going on. Obviously, some things are not susceptible to compromise. Basic standards of care for the prisoners — especially for the detainees — has to be the moral imperative that impels the Board of Corrections. But there are complexities, some of them related to collective bargaining, some of them related to availability of resources.

But in making their case, which I believe they have done effectively over the years, there has to be some ear, one would hope at both the Department of Corrections and at City Hall, but especially at City Hall. Now, I cannot think of any mayor that loved the responsibility that the city has for the Department of Corrections. Probably Michael can attest to that. There have been some mayors that have steadfastly resisted the responsibility and the allocation of necessary resources. But to simply flout what is a fundamental municipal responsibility and to use the city budget as a tool to punish the Board of Corrections and bend it to its will — which I believe is happening now — has perhaps happened once or twice in history. Again, it's not possible to conceive of a circumstance where the Board of Corrections is not engaged with the mayor. The chair, after all, is designated by the mayor and serves at the mayor's pleasure.

The other members of the Board of Correction also have ties to political appointment. But there is some mixture of advocacy being a gadfly, of using information, of presenting alternatives and of interacting with the union, which the Board of Corrections certainly made efforts to do when I was there because the imperatives of safety and wellbeing extend to the workforce as well as to the prisoners. It's important that the Board of Corrections keeps that in mind. Sometimes it hasn't been as mindful as, in my view, it should be on questions of the safety of the staff. The Board of Corrections is one part — I think an important part — but just one part of this picture. To my mind, not only are we at a point where the dentistry required is urgent, we are also at a point where we have to virtually start from scratch in correcting what we're confronting.

To my mind, that means that parallel to the receivership has to be the closing of Rikers and the reinvigorating of the efforts to reduce the population and to reduce the length of stay. The successes of the past that Michael alluded to were the product of lots of hard work and advocacy, even with the state government. It is absolutely absurd that the population, while much lower than it used to be, is increasing when we have established, in law and in the purposes of public policy, that Rikers must be closed. Perhaps there is some way to intersect the receivership and some dictatorial approach to achieving the closing of Rikers.

Jan Ransom: Thank you, sir. I want to make sure we get everyone to weigh in on this as well. I'm going to turn to Hernandez. After the seventh person died this year, who also happened to be the fourth person to die in July alone, you tweeted: "We are witnessing a decades-in-the-making humanitarian catastrophe on Rikers Island." How and why are things so bad, and what, if anything, can be done about it? We've heard a lot of talk about receivership.

Hernandez Stroud: That's right, thank you, Jan. I think Michael, Liz and Stan really covered why things are so bad, so I'll just focus on the second part of the question: What can be done about it? There has been a lot of talk about receivership, and if you look at how previous receivers have approached staffing, for example, which seems to be a critical challenge for Rikers, one close example to my mind is the Alabama receivership, which happened between 1979 and 1983. That receivership was riddled with management problems, and those management problems, very similar to those here, affected every aspect of the prison operation. The New York Times, your publication, actually noted that for the better part of two decades, the management scheme just was not present. One of the questions asked in the chat was “do the receivers have the power to hire and fire and in contracts or renegotiate contracts?” The answer to that question is “yes.” It is a litigation process in terms of the union issues, but typically receivers are granted these very vast powers when it comes to staffing because there are constitutional rights on the line. In order to vindicate the constitutional interest, you have to give these receivers pretty wide-ranging power. What the Alabama receivership did was remove unqualified doctors and hire new qualified medical staff. Prior to the receivership, there were only about 27 medical professionals for the entire state prison system, and during the receivership period, that number of medical staff grew to about 130 employees. The receiver set new performance metrics, standards and benchmarks for the employee's required training, and all of this resulted in a marked improvement in operations, especially in cleanliness and in terms of the medical services.

When it comes to unwinding some of the dysfunction on Rikers, I think it's going to be important to look at what a receiver can do with respect to staffing. Because the receiver would be deployed to deal with these very serious constitutional issues, and because the power from which a receiver flows is very high and extreme in nature, the receiver is going to have to have some of these powers to deal with staffing. Fortunately, we have some examples where they've been able to successfully do that.

Jan Ransom: You spoke early on about the pros and cons a bit. Can you expand on that and what could a receiver look like in New York City jails? It may not mean that they have total control of the jail system, right?

Hernandez Stroud: That's right. I mean, I did mention earlier that a receivership could be a partial one. For example, the receivership in DC from 1995 to 2000 focused solely on the delivery of medical and mental care, which is similar to California's receivership, which focuses on medical care. You could end up with a situation where the judge is thinking about how the law not only requires it to be very sure that a receivership is necessary, but also to make sure that it doesn't go further than necessary, that it basically be tailored just to the problems. If the judge were to find that the problems could be in some way isolated, they could fashion the receivership around the remediation of those particular problems and leave the current governing scheme intact.

Liz raised a vital point earlier, which was that when the City failed to disclose certain information and the monitor and the court had to learn of conditions not from the jails but through the media, it was a huge blow to the confidence that the judge and the court have in the City's ability. So if, like Liz said, the City can't be trusted to be a partner in this work, it really does call into question whether the judge would devise a receivership where they have any amount of control and responsibility. The ways in which receivers have been most successful is in infrastructure, where receivers have been able to make numerous improvements because they can bypass procurement regulations that might stand in the way.

For example, it takes a very long time right now to deal with locks on the cells in the city jails. This sounds like a small thing, but there are rules in place that really preclude how quickly those sorts of improvements can be made. A receiver would have the authority, by court order, to deal with things like functional locks on cells, which really do go to the security and the stability of the facility. Receivers have been able to reduce overcrowding, so to the extent that a receiver might think about how this relates to closure, they might propose a population cap, which is not an easy thing to secure, but might well be necessary, especially if this receivership is thinking about how we get to humane jail system once Rikers closes.

Receivers have also been very powerful in dealing with union regulations that run counter to their work. The Cook County, Ill. jail case, which was a receivership, is a perfect example of that, where there were numerous disputes between the unions and the receiver. In most of those disputes, the receiver was able to prevail. For well over a century, it's been settled in law that receivers have expansive authorities to break, renegotiate and enter into new contracts so long as that sort of effort is tied to remediating the problem for which the receivership was created to begin with.

Jan Ransom: Thank you, Hernandez. Sara, this next question is for you. Can you tell us about the implementation of a federal receiver in California? What was happening in the prison system there that led to the need for a receiver?

Sara Norman: Sure. Thanks very much, Jan. A lot of the conditions in the California prisons in the early 2000s — which is when we first moved for receivership under our litigation, the Plata v. Newsom case — will sound familiar to people who have been following Rikers. For medical care, the system was drastically understaffed and under-resourced. The physical plant was entirely inadequate to serve the needs of the population, and much of what was there was crumbling. But perhaps most importantly, the leadership was unable to even recognize the scope of the problem, much less assess it, devise remedies and implement those remedies.

A lot of Judge Felton Henderson’s findings in the California case involved the toxic and utterly incapable leadership of the state and the prison system that led them to deny, evade and utterly fail in the face of all the problems that were presented. That resulted in the uncontested evidence before the judge that over 50 people a year in California prisons were dying of medical abuse and neglect. That's more than one person a week dying of the failure to identify and treat cancer, heart conditions, diabetes and all kinds of very profound medical concerns that come up every day in the prison and jail system.

Jan Ransom: What, if anything, can New York City learn from the experience in California?

Sara Norman: The essential point to keep in mind is that while a receiver is a drastic remedy, to be sure, it comes into play for a drastic situation like the one facing Rikers, when the people running the system are incapable of identifying and fixing the problems that they face. Another fairly drastic remedy that is in the judge’s toolkit is contempt. Contempt is a coercive sanction that comes into play when the people running the system are capable of fixing the problems but refuse to do so. It is a coercive remedy to get them to act. Receivership comes into play when they're absolutely incapable of doing that, when prior court orders have not worked and when the court finds that the capacity to change is not there.

One of the things to learn from the California system — which has resulted in significant improvements in infrastructure and staffing and all of the areas that Hernandez laid out as being potential pluses of a receivership — is that the receiver is not an instant fix. The receiver doesn't transform the system overnight. It's not like you wake up the morning after the appointment of a receiver and everything has changed. It's the injection of a new player on the scene with very significant powers, but not unlimited powers. The powers are bounded by what the federal court can order and what the federal court has ordered. For example, the receiver can't just appropriate funds to run a system. You still have to go through the legislative arm of government. Civics lessons still pertain to the situation.

But you have someone on the scene whose job it is to fix the tremendous harm that is occurring, that is wreaking havoc on the lives of people in the system, and in fact is killing many of them. That person's sole job and focus, with significant power at their back, is to fix those problems. That's not anyone else's job. I'm a plaintiff's attorney myself; the plaintiffs play an incredibly important role, but they don't have power to fix problems. The people running the system have a million things going on. I'm not a big fan of the prison industrial complex, but I do acknowledge that it takes a tremendous amount of time and energy and work just to keep the lights on in the system, much less fix the intractable problems.

The lesson to learn from California is that when you bring in a receiver who's not politically beholden to any of the constituencies, who has independence and power and a single sole focus, you inject new energy and new capabilities into the scene that can shift the balances. It's not an overnight fix, but it's sort of a thumb on the scale if you pick your receiver in favor of competence, efficiency and solutions.

Jan Ransom: Let's talk about that. When we spoke before, you mentioned that the receiver in California is a lawyer, if I'm remembering correctly.

Sara Norman: Mm-hmm.

Jan Ransom: So, it matters who is selected and there should be some thought behind that?

Sara Norman: Absolutely. The judge has a lot of options, as was discussed earlier. One way of looking at this is: Do you want a receiver who looks like the people that the receiver would be replacing or is working side by side with? Do you want a corrections official because they have the skills and the understanding of the systems? Do you want someone entirely outside of that system who is sort of a turnaround specialist, who knows how to identify problems and look for fixes? That's what we went for in California. In the end, the judge appointed Clark Kelso, who's a law professor who has come in on other situations in the state to fix intractable problems.

The receiver would be able to then hire the expertise that they need. We had an experience with a prior receiver in California who did not work well with the parties and the players. The important thing is that the receiver comes in with an understanding of the various players and the powers out there, and the will and the ability to maneuver and to move people in the direction that's needed to affect change.

Jan Ransom: I wanted to expand on something that was touched on a bit early on. In 2021, we had 16 people die; last year, 19 people; this year, so far, seven. Slashings and stabbings and uses of force are still high. I think a lot of people wonder how bad things have to get. We've talked about bad faith, but are there other factors that play into whether a judge decides to take the step towards receivership?

Sara Norman: In my experience, death is ... I don't know how to say this in a way that respects the gravity of the situation. Death is an extraordinary motivating factor for a judge. The city is killing people in the system and judges have broad, equitable powers to act and to fashion remedies to fit the situation. When death is on the table like it is now, when the system can't keep people alive, judges have a tendency to go deep because the consequences are dire and irreversible.

Jan Ransom: I don't know if anyone else wants to weigh in on that question.

All right, I'm going to the next one. Should the judge decide to appoint a receiver? What role can the Adams administration play in this? That question is for the group.

Michael Jacobson: I'll start. As Sara was saying, whoever the receiver is and whatever powers the judge grants them, they're not dictators. They have to live in a political environment where the mayor runs the city and has control over most of the services that are delivered in the city. The state government is implicated here, and certainly the city council and labor unions. Even with the extraordinary powers granted to a receiver, you need someone who can work with those political entities, who understands the value of what they can add. One of the things Hernandez said, which I think is incredibly important, is that once the receiver leaves, whenever that is, you want all levels of government to be committed to those reforms, not to wait breathlessly so they can end all those reforms.

That is sort of political work that any receiver is going to need to be capable of. I think a number of people said you need the right person. It obviously has to be someone who's an organizational expert, perhaps with correctional experience. But they have to be able to recognize that, especially in New York City, community members, advocacy groups and city government in all its forms play a role. They have a say, and the receiver has to find a way to work with them, corral them and convince them about the path forward.

Hernandez Stroud: If I had a magic wand, and if receivership was inevitable — which it may well be — if I'm in the government and I'm advising the mayor, I would say to embrace this as an opportunity. That's what happened in Alabama, actually, there was a change of administration. And in Fulton County, which actually had a receivership, but if anyone's been paying attention, the DOJ just either last week or the week before issued a warning that there's reason to believe there are more constitutional violations occurring. To the extent that the government can embrace receivership, sometimes governments will see receivership in greater judicial intervention as a way to unlock funding that might not be a good idea through the normal political process, but you can through the court somehow secure that funding that might otherwise be unavailable.

As Sara mentioned, it's not like the receiver will just get a blank check. They still have to go through the normal legislative channels, but that figure is taking into account what it takes to reduce or eliminate the sort of suffering that's occurring. It's not a budget that's made thinking about, "Well, is this a good political decision or bad political decision?" In that regard, if I'm advising the mayor, I would say this is actually the way that you get to do the best job that you can in terms of the city jails and not have to deal with some of the political considerations that you otherwise would have to deal with.

Jan Ransom: Thank you.

Sara Norman: Can I weigh in really quickly on that?

Jan Ransom: Yes, yes.

Sara Norman: Thank you. I will say, from the California perspective — this is me speculating now, I don't have an inside take on the governor's office — but when the pandemic hit and it was hitting prisons and jails horrendously hard, I could hear the sighs of relief from Sacramento that they had a receivership running medical care in the prisons, because they had the capability of bringing in immense expertise. It didn't always go well, but the receiver was able to work the political angle and bring in experts and do all kinds of things to try to address the pandemic in the California prisons that the state simply would not have done with their entrenched bureaucracy and their limited mindset. I would urge any administration to keep an open mind and think about the possibilities and capabilities that a receivership would open up for them.

Jan Ransom: Thank you, Sara. We're going to address one of the questions in the Q&A. If a non-party or not-for-profit or another local government entity wanted to raise a concern to the receiver, would it behoove them to motion to intervene in the matter or simply write to the court?

Sara Norman: I’ll just try to quickly parse some of the legalities here. First, you'd have to wait for a receiver to be appointed to reach out to the receiver. In that case, I would very much hope that the judge, in appointing the receiver, and the receiver, in establishing their administration, would set up ways in which they could hear from people with lived experience of incarceration and their communities, as well as providers and other service organizations. To be effective, a receiver will have to be able to hear from people in ways that judges actually can't. I don't think, from the facts that we're given, that anybody would technically be able to intervene, but I would hope and I would suggest that all parties urge the court to establish a receivership that's open to such commentary.

Michael Jacobson: Echoing what Sara said, there's no receiver that would be worth their salt who would not want to engage in that kind of discussion, broadly, with community members, advocacy organizations and people with lived experience. I mean, that receiver is going to have to get information from a variety of places and have a process where he or she hears from a huge number of folks. That question in some ways presupposes that you somehow are going to have to force your way in. But any good receiver will make that an incredibly high priority for how they move ahead.

Jan Ransom: Let's take one more question from the Q&A. "Were there lessons from decarceration efforts, made at the onset of the COVID pandemic, that might be useful to reducing the population, to align with the borough-based jails plan?" Then there's a second part of the question, "Can this be part of the charge under receivership?" Some of this has been discussed, but maybe we can expand on that.

Michael Jacobson: Well, I can start with the first part of the question. There were certainly lessons to be learned about what happened during the pandemic. The city had a process, and Liz was involved in that, for looking at who was incarcerated, and making decisions about who could be safely released. That was a huge success. The population did go down significantly. It did not lead to more crime, or less public safety. That's a process that our city, or any city, should be doing all the time.

The only reason anyone should be in jail pretrial is because they're either at a hugely high risk of not coming back to jail, or — at least in most other places, though not in New York — they're a huge threat to public safety. If you don't meet either of those two criteria, you shouldn't be in jail in the first place.

A constant look at that, and driving our population down that way, is incredibly important. I think we have, in some ways, all the evidence we need from what happened in the pandemic. It should absolutely keep happening now. As Stan mentioned, the city is going to have to double down on getting its population down, and that is one of the ways: to have these intensive looks at who is in, and making some decisions about who really needs to be in.

Sara Norman: To just quickly add to that, federal judges do not, anymore, have the power to order populations to be reduced. Therefore, it is on elected officials, and the people who elected them, to fight for policies just like Michael described. We incarcerate far too many people in this country. It damages the people who are incarcerated, their families, their communities and our entire society, in incalculable ways. We need to incarcerate fewer people. It really, as I said, is up to elected officials, and those of us who vote for them, to make sure that that happens.

Jan Ransom: Alright. Well thank you, everyone on panel one, for your insight and responses. Going to hand it all over to Errol Louis. Thank you.

Panel Two

Errol Louis: Thanks very much, Jan, and thanks to everybody who participated. That was a great first panel. We're going to start the next conversation now. Along the way, I'll urge people to tell people to join us for this conversation through whatever social media you have access to. Both the Q&A and the chat will be available to you for questions. I urge you to use the Q&A. We'll probably delve into them more towards the end, but we'll perhaps sprinkle some in along the way. I'll just run through the biographies of our participants quickly, and then we'll start.

Christy Lopez is a professor at Georgetown University Law School. She previously led the section of the Federal Department of Justice responsible for police department consent decrees. Martha King is a senior program officer at the Charles H. Revson Foundation, and the former Executive Director of the City's Board of Correction. Graham Rayman is a reporter at the New York Daily News who specializes in criminal justice matters and is the co-author of a book about Rikers Island. Stanley Richards is the deputy CEO of the Fortune Society and recently served as the first deputy commissioner of the Department of Correction. Sarena Townsend, who is now a partner at Townsend, Mottola & Uris Law, is a former deputy commissioner of investigation and trials at the Department of Correction.

Now, we are talking because the city government has taken very severe, even brazen steps to suppress information about what is happening in the jails. That includes limiting the access of the Board of Correction and refusing to release information to the press or the public about whether deaths are occurring. We're going to talk about transparency, and how to make that part of this equation. We'll explore what we can learn about the value of transparency, and we'll look at some other contexts, like police department consent decrees, to get some clues about how the city ought to best move forward.

Clearly, something has not worked properly, or as intended, when it comes to the safeguards that are supposed to incentivize good professional behavior and prevent bad behavior at Rikers. We use phrases like watchdog, oversight and guardrails, which imply that something bad will almost certainly happen if there are not guard dogs. Dogs, so to speak, are overseers doing oversight, watching the people in the institutions.

We're going to talk about ways that government institutions and private institutions like the news media can enhance public safety and improve the situation in the Department of Corrections. Stanley, I want to start with you. To what extent were oversight considerations part of daily decision making when you were there as first deputy? Was it more like a set of limits that you could walk up to and try not to step out of bounds? Or was it baked into the way you made decisions?

Stanley Richards: When Commissioner Schiraldi and I were there, we often talked about bringing light into a place that felt very, very dark. Oversight and bringing in elected officials and community members to see what was going on was part of our strategy to bring light to it, to generate enough energy and concern about the way in which the facilities were operating and the conditions that people were confined in. We thought they could generate enough energy to begin close down Rikers, and transform the system.

We specifically targeted elected officials and had them come out, and we brought community members in. We partnered with the Board of Corrections around some of the policies around how to safely house transgender and LBGTQ populations and ensure their rights. Oversight, light and transparency were a significant part of our strategy for changing Rikers, closing it and transforming the system. We thought if people actually saw what was happening there, saw the number of people that the system was reduced to, that they could begin to hope and see something better, and want to see some changes.

Errol Louis: Stanley, did outside reporting help with that? Because there's taking council members on a tour or otherwise trying to get the attention of City Hall, but of course, some of that is outside of your control once we in the news media get ahold of the story.

Stanley Richards: Absolutely. It was the media, it was elected officials, it was community members, the Board of Corrections. All of those parties really helped shed light on what was going on. It's a horrible thing that's happening. Why is this happening? We felt it was really important for people to see it. So yes, media played a part in it, and our elected officials played a part in it. It was part of our strategy to try to close Rikers and transform the system.

Errol Louis: Sarena, you were the watchdog. To what extent, beyond the four corners of a disciplinary proceeding, were you able to not just limit abuses, but try to transform the culture, or at least instruct officials about best practices? Was there a role for outside transparency, an outside look into Rikers, that was a part of what you were doing?

Sarena Townsend: Absolutely, and thank you, Errol, for the question. People sometimes forget that part of the consent decree was a focus on transparency itself. In fact, it required the department to put cameras everywhere. It required the department to do self-reporting on use of force, which had not been done much before. The federal monitor even gave my division, the Internal Affairs Investigation division, the role of investigating every single use of force, no matter what, no matter whether the use of force looked good or looked bad. There was a huge focus on transparency.

As for communications about what was going on there, we had an excellent partnership at the time with the New York City Department of Investigations, for example. Dana Roth was the IG there. We worked hand in hand. We spoke all the time. I saw that in a recent monitor's report, the current commissioner said that it was rare, or uncommon, to brief the monitor on certain internal investigations. That was not my experience. That's not true of how things were run previously. I was communicating with the federal monitor and his team on probably a daily basis with respect to what I was seeing internally and on specific cases, and general oversight.

We were very transparent with the Board of Correction as well. I myself testified in front of City Council and the Board of Correction, whereas under this administration, I've never seen the Investigation Division deputy commissioner anywhere publicly. It was a huge priority under Commissioner Ponte, Commissioner Brann and Commissioner Schiraldi for the right people to know. When we talk about oversight, a lot of times, with media, we talk about the public's right to know.

Well, people could agree or disagree with respect to how much the public needs to know certain things. But what I will tell you is that the actual people and agencies that are charged with oversight, like the Board of Correction, DOI, the Bronx DA's office, all of the DA's offices, the federal monitor and Internal Affairs, all of those entities must know. The unfortunate situation is whether or not the public knows what's going on under this administration. This administration is also hampering the agencies and the entities who are charged with knowing from knowing.

Errol Louis: Martha, we recently got word that the Board of Correction was informed it will no longer have unrestricted real time access to the video feed from cameras on Rikers Island. From your experience, will that create a substantive problem in and of itself, as far as the Board's work? Or is it more a matter of what a lack of access would symbolize?

Martha King: Definitely not just in symbol alone. It's been eight months at least that the Board has not had access to video. The department and the City have also cut off the Board's access to staffing data. The City sought to reduce the number of public meetings that the Board was able to hold. They sought to reduce the number of public comments that the Board could receive. The video access is only one part of an intentional, coordinated strategy to incapacitate the Board of Correction.

The use of video plays into all of the investigations that the Board conducts, so we wouldn't be able to have identified underreporting of serious injuries by 80% in 2019. We wouldn't have been able to identify the fact that supervisors were not making their rounds 40% of the time if we hadn't been able to look at video. Obviously, the video is also crucial to the death investigations that the Board is carrying out.

Errol Louis: Wow, that's extraordinary. Graham, the access to cameras came after my colleague, Courtney Gross, reported on the death of a young man, a suicide. We used video because we could get it, and because TV is a visual medium. You have developed a lot of contacts, though you do your work a little bit differently. You know a lot of insiders at Correction. Do you have adequate access to your sources? I don't want to focus too much on the technology cutoff to the exclusion of what you're able to find out about what's going on there.

Graham Rayman: Well, certainly, the DOC isn't a monolithic entity. In fact, there are a range of factions inside the department that have different issues with what's happening in jails. There's a whole range of different ideas about how things should be run. Just one example is that Commissioner Molina bringing in outside assistant commissioners has rankled a lot of people in middle management, because they're seeing their career paths to chief getting short-circuited.

There's some discontent there. There's discontent among the rank and file who work double and triple tours in the jails while other officers have cushy assignments. Obviously, it takes building up trust and relationships, but it’s certainly possible to get information. But what we've seen from the Adams administration goes beyond video. It's basically a systematic attempt to shut down the more official avenues to get information.

I've done a couple of stories recently where, literally, the effort seems to be to scare people into not talking, to intimidate people. There's the case of Dr. James Uhrig, who made a series of critical social media commentaries over the past year and was barred from Rikers. This is a man with 44 years of medical experience. He speaks multiple languages. He's worked all over the world. This is somebody you want to have in your medical system.

A second example is Captain Awais Ghauri, who sent an internal email in which he complained about security provisions with respect to a detainee who had assaulted 32 officers. He was suspended. Instead of his comments being embraced, he's facing disciplinary proceedings. To me, these are unforced errors by the administration. It wasn't necessary to do these things. All it does is make people trust what's coming out of the DOC less.

Errol Louis: Okay. Now, Professor Lopez, consent decrees are a pretty strong form of oversight that, ideally, are supposed to get an institution and its leaders to adopt new policies and inaugurate a new culture. As we've heard, the Department of Correction has had five consent decrees across eight mayoralties. In general, what's the process by which the institutional culture is supposed to change? What are we getting wrong here?

Christy Lopez: Thank you for that question, and for having me here today. One thing to keep in mind is that every place is a little bit different. One of the most fundamental mistakes you can make is assuming that the problems you're seeing here are the same as the problems you saw at another place. You really do have to dig in and figure out what exactly the issue is here. I've been following Rikers from afar, but don't have the level of expertise that all of you do about what's been happening there. I just want to put that caveat to what I'm about to say because people have already raised a lot of the factors that come into play when you're really trying to change the culture and the functioning of an institution. And that’s why consent decrees over several years may not have been enough here.

I do think that what Sara Norman said earlier about the idea of having the willingness to make the change, but also the capacity to make the change, is a big issue. There have been dozens of consent decrees in the policing arena, and there's only been one receivership. I happened to have been the monitor of that department, the Oakland Police Department, before it was under receivership, when it was at a consent decree.

In most of those cases, I can tell you that, even with a consent decree, nothing changed until there was a willingness to make change among the leadership. A mayor came in who appointed a police chief who wanted to make change. In my view, it's really hard to brute force change through just a consent decree. You're going to need that willingness from leadership. However, even with that willingness, the capacity to do so may not be there, and not necessarily because of some incompetence on the part of the individuals involved. It can be that entrenched bureaucracy that Sara was describing, that limited thinking, which is a learned helplessness. It's almost a defense mechanism from feeling that futility and inability to get anything done, even though you want to.

I'm not trying to be an apologist for the plenty of people working in these systems who don't care or who are actually hostile, but there are often a lot of people who would like to make a change, but have just given up, and that can create these capacity issues. That's where something like a receivership can be so important. As Sara pointed out, they're not an immediate fix, and I think that's incredibly important to keep in mind. What they bring to the situation, in my view, more than the willingness to make change or the capacity to make change, is the real power to make change institutionally, rather than in an individual capacity.

The bottom line answer to your question is that when the receiver is selected here, there's going to be a real need to figure out exactly what the obstacles to change have been and ensure that this receiver has the precise power necessary to overcome those particular challenges. That's something that all of you can answer much better than I can. I do just want to put a plug in for the transparency component, for a couple of reasons.

One is that what I've been hearing about Rikers recently — like not being open, and not reporting deaths — is striking me a lot more as a willingness problem than a capacity problem. That's not a capacity issue; you've just decided you're not going to play ball anymore. You're going to need to make sure that the receiver has the ability to break through and call that out, to hold people accountable for those sorts of shenanigans, I'll say very kindly.

The other issue to keep in mind is that this receiver is going to need a lot of power. That is important, and perhaps essential, but also dangerous. To counter that, the judge and the plaintiffs are going to need to work on that issue, as well as the defendants. But transparency is going to be really key here.

Transparency is always really important, as a few people have said, because you really want to put that information in the hands of the public so they can assess for themselves what's going on. I think it's particularly important when you have something like a receiver and you really want the public, not just the parties and the judge, to have a very clear sense about what that receiver is doing.

Errol Louis: It’s interesting because there are a lot of differences here between Correction and some of the police departments that you've dealt with. One of them is that this is an institution that doesn't really have a strong political constituency behind it, as Stan Brezenoff pointed out. I've heard from Michael Jacobson and others that it's not unusual for a mayor to go two, three or four years without ever even talking to their Correction commissioner. That might be part of how we got to the point that we're at right now.

It's certainly not seen as mission-critical for any given administration when it comes to public safety. Everybody thinks about the cops; nobody thinks about what happens after the cops put on the handcuffs. In your experience, though, Professor, the political leadership point that you made was really well taken. Have you encountered situations where the political leadership was basically dragged kicking and screaming into the consent decree and didn't want to play ball? Because much of what we're seeing here, with the shutdown of communications, appears to be coming from City Hall.

Christy Lopez: Yeah, absolutely. We dealt with that when I was at the Department of Justice. I also worked a lot in prisons and jails. I actually did more of that work before I went into policing, realizing that you weren't going to fix these places and that we need to keep people out of them. I do have some experience there, and I agree with you that there's not as much political support for people who are imprisoned. I will say that you get a little more of that for people imprisoned in Rikers than in most of the jails and prisons I was working at, in places like Mississippi. But still, point taken; it's really important.

That does increase the likelihood that people will be dragged kicking and screaming into these agreements, and we certainly saw the spectrum of that. We had chiefs and mayors who asked us, openly or not so openly, to come in and conduct an investigation, and to make sure that there was a consent decree at the end of the day. We had other people who were quietly kicking and screaming, but made the political calculus that, publicly, they would cooperate and support the investigation and consent decree. We had people who were kicking and screaming from day one — Sheriff Joe Arpaio, in Maricopa County, for example.

And there were those where, over time, the leadership in the jurisdiction changed, where the leadership may initially have been supportive, but now is not. New Orleans, La. is an example of that, in the New Orleans Police Department. You can actually see that dynamic I started out talking about, how there was really significant change happening. After a long time under that consent decree, they should be out by now, but it's in danger of falling apart because that willingness at the political level is no longer there. It's really hard, as I said, to make that change happen, where you don't have that [inaudible 01:22:56].

Errol Louis: Stanley Richards, we're getting into the thick of the political situation here. Something I have certainly noticed with this administration, especially when it comes to Correction, is that Mayor Adams, who's a former member of the NYPD, and his correction commissioner, who is also a former member of the NYPD, are reacting in a very particular way where they are politicizing, to a certain extent, the very fact of oversight.

We often hear the mayor say, "Well, you didn't do this with all of these other prior mayors. You're doing this only to the second Black mayor," or, "I'm the mayor who’s gone to Rikers more than any other, and all of the people on both sides of the bars look like me." It is a very hot button, very specific way of amping up the stakes there, in a way that makes it that much harder, at least for some of my colleagues in the media. I'll say whatever I think, whenever I think it, but for some people, it's making the whole issue very touchy. I was wondering what you make of all of that?

Stanley Richards: The problem we have right now with Rikers Island wasn't created by Mayor Adams, and it wasn't created by Commissioner Molina. I think that the dialogue that has brought us to this point has resembled a prize fight. The bell rings, and everybody goes to their corner. I would say — and I think Sara said this earlier — that this is a moment where Mayor Adams and Commissioner Molina could lean in and say that this isn't a failure of their leadership or a failure of their stewardship of the Department of Corrections, City of New York. This is a moment where they can embrace transparency, oversight and real transformation, and be the stewards of that transformation.

Right now, it's feeling like it's a personal attack on Mayor Adams or on Commissioner Molina. This isn't about a situation that they created, but they are in leadership roles right now where they can begin to change it. We collectively need to shift the way we use language as we talk about this and get out of this "somebody has to win and someone has to lose" mindset. I firmly believe that we can have a situation where we can have the City win, we can have the men and women who work in the Department of Correction win, and we can have those who need to be detained win. This doesn't have to be a win-lose situation.

Errol Louis: Sarena, the reality is that there's a factor here that we simply cannot ignore, and that's the Correction Officers' Benevolent Association (COBA), the main union, which is incredibly powerful. It always was, for a number of different reasons, some of it having to do with the ability to control access to Rikers Island, as well as the political smarts of some of their past leadership and the fact that they go fairly high up the food chain and you're still a union member. Whereas in other systems, it might be a little bit different. Sarena, talk a little bit about the role, as far as you know, that they are, or could be, playing in all of this.

Sarena Townsend: Sure. They're always going to be very influential one way or another, and it's up to the commissioner and possibly even the mayor to determine just how far they themselves are willing to go to accommodate COBA's requests and demands. We've seen COBA make demands for many, many different things. For example, wanting to bring back cargo pants after the New York City Department of Investigation heavily advised DOC that they should not be allowed to wear cargo pants because that was a main avenue for contraband introduction. It seems like such a little issue; it's just an article of clothing. But there was a very good reason for DOI to take that position. And here you have an administration who, for seemingly no real reason other than to potentially make the union happy, are allowing cargo pants to come back. I don't think it was a fashion decision.

You have big requests and you have little requests, and you have big demands and little demands. When I was in charge of the investigation and trials division, COBA wanted to have certain members of ESU who I had removed because it violated the consent decree to have them there put back into ESU. They wanted me to change my policy on how to conduct investigations. They wanted their members to be able to view video of an incident before I brought them in to interrogate them.

Interestingly, nobody is suggesting that the police do that, just that the correction officers benefit from that. There are a lot of demands that are made, and one of the reasons why receivership is so attractive is because you have somebody come in until the problem is fixed rather than this staccato rhythm of somebody coming in and leaving. In the latter situation, COBA is able to ask for a lot of favors from an incoming commissioner. And when they don't get that favor from this commissioner, they'll get it from the next commissioner. And so, COBA and the Corrections Captain's Association and above have a lot of power depending on just how amenable the commissioner is to giving them that leeway.

Errol Louis: Graham, what's your sense of where the union is? I've talked with some members and their various presidents over the years, and as Sarena suggests, there is very much a kind of wait and see attitude that I have picked up on where mayors come and go, commissioners come and go, and the union stays.

Graham Rayman: Yeah, there's certainly that feeling of “we're going to be around here long after you're gone.” Toward the end of the pandemic and afterwards, the sick leave crisis was an interesting challenge. The message was basically that you need the rank and file. So, if the rank and file are resisting, then the administration, at the time, there was a lot of stuff that happened as a result of all those sick outs. My sense of where they are is that they're probably planning to file legal challenges to receivership. And if the receivership becomes more real, I think that they're going to fight it tooth and nail. To Stanley's point, I've always been a little unclear as to why the Adams administration hasn't been more open to some kind of outside control.

It seems to me that if they were more willing or interested in talking about it, then they would have more control over what the shape of that receiver would be, so it doesn't have to be, as Stanley said, a prize fight all the time. But I feel like the message from COBA often turns it into a prize fight. I think the COBA president, Benny Bosio, is very aggressive in supporting his members and I don't see a lot of compromise coming from what he says. Maybe that will change, but we'll wait and see.

Errol Louis: It's interesting. My answer to that would be that the core of the mayor's political base are black civil service uniform workers like himself, and COBA endorsed him and he stands with those folks. He says, "I am them. They are me. This is where I come from. This is who I am. If I can't keep these people happy politically speaking, what good am I?" He seems to have kind of thrown in with them.

There's also a question that was addressed in the prior panel. I've talked with some of the union leadership and some rank and file who seem to believe that even if a receiver comes in, all of their negotiated benefits would stay the same, that all of their rules would have to be negotiated. And I was telling them, “I don't know about that, guys. I think that, yes, you'll still have some collective bargaining rights, but those rights are going to be very, very limited compared to what you're used to. It's not like you're going to sit down with a federal receiver who's taking complete control of Rikers and you're going to start talking about cargo pants. It's just not going to happen.”

Let me bring Martha into this. To the extent that there is a receiver or serious talk about a receiver, we don't know what Judge Swain will do. She's been very patient, but if you read between the lines that patience appears to be wearing thin. The receiver doesn't just show up with a list of what he or she could do — the process would be negotiated. From your point of view, Martha, what should we make sure is included in any receivership arrangement? What are some tricks or traps or requirements around transparency or anything else that we should make sure are included?

Martha King: I'll answer your question briefly, because I want to return to something that you also implied, Errol, which is the nature of the fundamental reform that needs to take place here. It's not going to be about cargo pants; it will be about the contract and it will be about the job descriptions. But I think it’s certainly for a receiver to come in and to recreate administrative systems that are accurate and functioning, and we know that the administrative systems of the department are totally deficient right now. A great example of that is the City's largest settlement related to the city's jails most recently, which is a $300 million payout to up to 80,000 people who were kept in jail after they posted their bail. That is because their paper records and their management of the regular day-to-day function of the department was not working.

A receiver needs to come in and deal with the administrative messes inside of the department. I also just want to step back and say, speaking to Christy's point in terms of capacity versus willingness, that I think that where we are is not an accident. The fact that the administration is being so obstructive to so many different parts of the oversight world for the jails is not by accident, because we've seen three phases of what's happened. One, we saw that the department was unable to comply with the terms of the consent judgment set up in 2015. And so then the federal monitor said, “Okay, you know what? We're not even going to pay attention to the consent judgment.” That's what was said in 2021. Instead, you need to fix the basic management of this department. You need to fix how you manage staff, create some basic security practices and fix how you are managing the people in your custody.

And then we've seen, through the monitor's report, that the department is still unable to make basic changes around improving the management. That is compounded by this unwillingness to cooperate with the monitor or any other oversight entity. This isn't random, because one of the points of oversight is you see a divergent reality. When we look at the most recent Nunez monitor’s report, we see that the risk and the danger to people in custody is actually acute right now. The monitor pointed out that the frequency of use of force misconduct by staff was unprecedented this year. And that misconduct is not happening because the department is responding to a fight in the heat of the moment. 67% of that misconduct happens when they are simply conducting searches or escorting people from place to place. All this is to say that the obstruction suggests that there are real reasons that this administration wants to keep facts under wraps right now.

Errol Louis: Professor Lopez, can this question of transparency be written fully and firmly into consent decrees and/or a receivership arrangement?

Christy Lopez: Perhaps not as fully as some people would like. As several people have mentioned, the court has broad equitable powers that they can invest or give to the receiver, but these powers are not unlimited. So, for example, if there are state laws that say this information can't be revealed, they can't reveal it. It's also my understanding that with a lot of the terms of the collective bargaining agreements in these state laws related to unions, the judge can't just grant the receiver the opportunity to work around them.

But the judge can make clear and grant the receiver a lot of power, both to communicate with and receive communications from the public, and to obtain information, analyze it and make it public. The judge can give whatever the law would allow to the receiver, and it can be much greater than what is currently present. If I were an advocate of openness and transparency here, I would be focusing much of my effort on making sure that the court grants the receiver the full possible power to obtain and share information from all the relevant bureaucracies and sub-bureaucracies. And also that they require that the receiver talk to, hear from and communicate back to the public more broadly.

Errol Louis: Okay, I'm going to urge folks. If you have questions, you can type them in the Q&A; there's a button on the lower right part of your screen. You can also throw them in the chat if you're not able to find the Q&A button. I see a question here from Jacqueline that I’m going to direct to Stanley. Her question is: How much does the unlimited medical leave which reduces staff in the jails contribute to the problems?

Stanley Richards: I think that's a major contributor. We ended up with about 30% of the staff unavailable that were sick or on modified duty, which was massive in terms of being able to cover posts, being able to provide basic services and being able to get people to court. Unlimited sick time was one of the challenges. Sarena and her team had rules around that, about how many days people could be out and about where people are supposed to be during that sick time. Sarena and her team would go out and do investigations, and they did an amazing job of identifying people who were falsely documenting that they were sick when they weren't sick, following them on social media when they were supposed to be sick. Yeah, unlimited sick time was a major, major challenge. Sarena could speak to the investigative part of how we handled the sick time.

Sarena Townsend: Thank you, Stanley, I appreciate the compliment. We did try very hard to combat that, alongside DOI as well. It’s very interesting to me because NYPD has unlimited sick leave. Corrections is not the only agency that has unlimited sick leave, but you see more abuse of that sick leave than in any other agency. It's not even measurable; it's not even comparable. It's very interesting. And it's hard, because correction officers really do get injured and sick and should be entitled to have the ability to take the time that they need to recuperate. It's just very unfortunate. And those officers who don't abuse the sick leave don't look kindly upon their colleagues who abuse that sick leave. If I may, I want to address one thing that the current administration is talking about with respect to unlimited sick leave.

They say that they have very few people compared to the past who are out sick. The only issue is you still have tons of unstaffed posts. So you have to question, well, if they're not out sick, where are they? It's my understanding that a lot of them have been terminated. There's nothing wrong with terminating people who abuse sick leave — I myself sought to do that as well. But you can't just tout fewer people out sick and use that to claim that you have more people staffing the jails when the people who were out sick have been terminated and not replaced. We have to remember that when the agency touts fewer people out sick, that doesn’t necessarily mean that the posts are staffed.

Errol Louis: I've got a question directed to Stanley. You said the Rikers problem wasn't created by the Adams and Molina administration. My question is, who or which administration was the problem created by?

Stanley Richards: This is a problem that is the decades in the making. The mere structure of Rikers Island is out of sight, out mind. As a formerly incarcerated person, I remember that when you went over the bridge, it was the bridge of no return. It always was a place that was not in public view, that was managed. There was a subculture of survival of the fittest on that island. So, this is decades and generations in the making. This isn't something that happened under the de Blasio administration or the Adams administration. One of the things we did at the Lippman Commission to recommend closing Rikers, and one of the things the advocates were doing about closing Rikers is highlight that notion that it has always been out of sight, out of mind. There hasn't been accountability, there hasn't been transparency.

Over the decades, terrible things have happened to both people in custody and people who work there. And that trauma doesn't end when your sentence ends or when you leave. That trauma is transferred into the community. New York has been living with a system that has been horrible to people who are incarcerated there and the communities that they come from, because they end up coming back to the community worse off than they did before they left.

Errol Louis: And Graham, you were one of the editors behind a wonderful oral history of Rikers. If we're going to assume that this was decades in the making, where would you urge people to take a look to see where problems started to reach a critical level?

Graham Rayman: That's such a tough question to answer. The population swelled at the end of the ‘80s and into the ‘90s. One of the key decisions made in the ‘80s was to continue to build jails on Rikers. That was the deal with the population. It vastly expanded the facilities on Rikers.

One of the interesting things that my co-author Reuven Blau and I found was that after the excesses of the nineties and the broken windows policing that put so many people in jail, as Michael Jacobson mentioned in the earlier panel, there were people within the criminal justice system — lawyers, social workers, etcetera — who felt that this was crazy. And so they were working from within the system to get the population down while other people were working from outside the system. The population started to slowly descend through this century, and we got all the way down to under 4,000 during the pandemic, but then it goes back up. You have to take the pandemic into account when you're talking about the issues the jails are facing. Also, the jails or the facilities are incredibly old; they're falling apart. Pieces of the jails are used as weapons.

It's a very difficult question to answer. The fact that the population is so low and yet violence is so high is just an extraordinary double take. Anybody who was working for DOC in the ‘90s has to be befuddled and confused by that strange dichotomy. I don't understand it.

Errol Louis: I urge everybody to take a look at “Rikers: An Oral History,” the book that Graham Rayman was the co-author of. That brings us to the end of our times. I want to thank Stanley, Sarena, Martha, Graham and Christy for joining me. I'm going to turn it over now to Michael Jacobson, former corrections commissioner and wise man on all of these issues.

Michael Jacobson: “Wise man” — thanks, Errol. So, it's been almost two hours and I know we're all ready to go. I just want to say a couple of high level things before I thank all the participants. I say this knowing that for the participants, and for the people who are viewing this, there's a mix of folks who are experts, who live in this world and have strong positions one way or another, and folks who are tuning in because they’re interested and these are important issues.

Two of the things we've tried to do in these two panels through our excellent moderators are place some of these current problems in a historical context and make incredibly clear the importance of transparency and how it relates to almost everything we're talking about. Key to some of the things we discussed is the relationship between the issues we're talking about and closing Rikers Island. They are inseparable. They are of a piece. We've tried, through a lot of our experts, to make clear what the powers of a receiver and the variations between different kinds of receiverships are. Sara and Hernandez’s examples of what other receiverships can look like are food for thought, both for the people on this webinar and obviously for the judge.

All of the problems we’ve talked about — violence, length of stay, missed medical appointments, absences, etcetera, etcetera — have to be brought down now, and those indicators have to start going in a better direction. That's necessary. It’s necessary, but it’s not sufficient, because the other thing that has to happen — under the guide of transparency and openness — is that Rikers Island has to be closed, which implicates population. As a number of people have made mention of, there has to be a cultural and organizational change process to have a different mindset, to have a system that's based on human dignity and human rights. All those things have to happen together.

It's an incredibly daunting challenge. Whether the judge decides on a receiver or not, government is going to have to figure out how to do all three of those things in the short term and the long term. As Stanley said, to shine light on a very dark place. All of that has to happen regardless of the structure that the judge decides on. It's something for all of us to think about. It's axiomatic. It's a categorical imperative that the City undertake that. Whatever form of governance we have, those things are essential for the people who work on Rikers and the jail system, and they're certainly essential for the people who are housed there. 

I hope we've given folks some information, some food for thought. Thank you all so much for coming. A special thanks to Jan and Errol for being such excellent moderators, to the organizations that co-sponsored this and obviously, to all the excellent panelists and to all of you folks for joining. There will be a way for you to send questions in if you haven't already, through Vital City. Liz, I don't know if you want to say a word about that.

Okay. Anna's putting it in the chat. You can send them to info@vitalcitynyc.org. That's where questions will be fielded. Feel free to ask away and follow up on anything that you've heard. We look forward to hearing from you and responding. Thank you all so much for doing this.