Can A Receiver Bring Enduring Change for the Better?

New York City’s jails have been operating under a federal consent decree for nine years, aimed at reducing unconstitutional levels of violence. Over the course of the past several years, as violence has spiked to levels well beyond those found unconstitutional in 2015, a new idea has gained currency: The court should appoint a receiver, a person who has the power to implement, not just monitor. Courts will generally consider appointing a receiver only as a last resort when other options have failed. Many Vital City contributors, through participation in forums and in their writing, have been leading voices for this approach. Several elected officials have voiced their support for a receiver, but Mayor Eric Adams has opposed such a move. 

Despite this opposition, on Sept. 25, Judge Laura Swain directed New York City officials to work with lawyers for the plaintiffs in Nunez v. New York City Department of Correction, the Legal Aid Society and the U.S. Attorney’s Office to develop a plan for a potential court takeover of Rikers Island through receivership. In other jurisdictions, receivers have had the executive authority to run the jails, including setting budgets and adjusting collective bargaining contracts. In this way, a receiver effectively has the authority not just of a jails’ commissioner, but of a mayor. The goal is to use these remarkable powers to establish good correctional practice with respect to management, security and accountability — foundation stones of decent and humane jails that have long been missing from Rikers Island.

The appointment of a receiver would be an unprecedented step for New York City, but it has been done in other places. Vital City recently asked several correctional experts what advice they would offer New York.

Sara Norman: You want a receiver who doesn’t want the job of commissioner

In 2005, federal judge Thelton Henderson appointed a receiver to fix California’s disastrously inadequate state prison medical care system, finding that “the threat of future injury and death is virtually guaranteed in the absence of drastic action.” He did this in response to a motion by the Prison Law Office, where I was, until recently, deputy director. This bold move has paid off with significant systemic improvements that have saved the lives of many people incarcerated in California. It also opened the door to what was, until then, a rarely used remedial measure in civil rights cases. 

The Nunez court order of Sept. 26 lays out the essential factors to be considered in the appointment of a receiver. Here are some warnings from the California experience for two of them: the tenure of the receiver and the qualities/experience of the person appointed. 

It is essential that the receiver’s tenure be dependent on systemic achievements rather than the calendar. Any approach rooted in a set number of years will fail; those opposed to reform will have the incentive to run out the clock. In my experience, obstructive corrections administrators have superb skills in this area. 

In order to turn the attention of all players to productive ends, the receiver’s tenure should be measured by concrete accomplishments: for example, the establishment of a meaningful grievance system for residents, a use-of-force review with a feedback loop that leads to genuine self-correction and adequate staffing to supervise residents safely and allow for beneficial programming. 

It is also essential to separate the end of the receivership from the end of the case. Once the court determines that the receiver has achieved the substantive goals he or she has been given, it remains to be seen whether, in the absence of that oversight, the remedies established are truly durable. The parties and the court should understand this distinction from the beginning.

Along with positive attributes (strategic thinking, management skills, systems approach), I urge the parties and the court to consider a crucial negative attribute: the lack of ambition to run the system. You want a receiver who doesn’t want the job of commissioner, whose focus is solely on accomplishing the court’s established goals without any consideration of personal ambition. From the California system, the most effective qualities are those of an outsider who understands failing systems and can apply pressure, who can support or axe as needed and who can work hand in hand with the career administrators and staff who support reforms. Avoid a candidate whose approach is to develop their own power structure. 

Hernandez D. Stroud: City leaders should embrace the receiver and shape it

In the dozen times in U.S. history since 1979 that federal and state judges have ordered correctional receiverships, judges have either imposed one on the government or the parties have voluntarily agreed to the arrangement. Either way, judges appoint third-party administrators — generally called “receivers” — to run and reform troubled prisons and jails. Selection of a receiver often turns on a perceived ability to improve conditions behind bars based on the candidate’s expertise and prior experience in similar settings.

Courts grant immense, sweeping powers to receivers, empowering them to address complicated, interlocking, deep structural challenges like inadequate health care, extreme brutality and managerial incompetence. So it should be little wonder that receivers — whose fidelity is singularly to the law, not politics — have sometimes had to make politically unpopular but legally necessary decisions. These can include enlarging correctional budgets, spurring new prison and jail construction, and facilitating the release of people behind bars.

Receiverships can leave the government with little say as to the receiver’s work. Yet when receivership ends, the government is responsible for maintaining the improvements. New York City leaders can and should work constructively to ensure that a potential receiver’s work is sustainable after receivership terminates — a key challenge in most structural litigation to reform public institutions.

New York City leaders could play a key role in the appointment of a receiver. In Jones v. Gusman, which led to a negotiated receivership for the Orleans Parish Prison from 2016 to 2020, the judge allowed the sheriff to select a receiver from a slate of three candidates whom the plaintiffs and New Orleans city government had nominated, subject to the court’s final approval.

New York City leaders could also seek to place some checks on a receiver’s spending. In Doe v. Cook County, which prompted a negotiated receivership for the Cook County Juvenile Temporary Detention Center, the judge required the receiver’s proposed budgets to be automatically reviewed by county commissioners if they exceeded 10% of prereceivership annual jail spending. 

New York City leaders could further try to dictate the receivership by negotiating a cap on the length of any receivership. In Inmates of D.C. Jail v. Jackson, the judge placed the District of Columbia Jail under receivership and ruled the receivership would automatically terminate five years from the date of the receiver’s appointment in 1995. The receivership ended in 2000.

Receivership is, to be sure, no panacea. But it can lead to some marked improvements for the people confined to and working within troubled institutions. New York City leaders should ensure they’re part of the takeover process to ensure our jails never again return to this sordid state.

Zachary Carter: It is essential to curb the influence of the correction officers’ union

Nearly nine years after the entry of the consent decree intended to address the epidemic of violence at Rikers, the monitor appointed to oversee compliance with the decree was compelled to observe the following:

Omitted from this summary catalog of failures is the role of the union representing Rikers correction officers in actively opposing and obstructing reforms recommended by the monitor that constitute widely accepted corrections practices designed to reduce unnecessary violence against incarcerated persons and staff. 

The union’s role in supporting a culture of unnecessary violence is compounded by City leadership, which fails to resist and at times acquiesces to union demands that run counter to needed reforms in the disciplinary process for officers implicated in unnecessary acts of violence or neglect of their duties. Most prominently, in response to an aggressive campaign by the union, and as his first significant official act, the former commissioner of the Department of Correction dismissed the disciplinary manager, the deputy commissioner for intelligence, investigations and trials, who had been widely regarded for bringing much-improved efficiency to a disciplinary process that had rarely held officers promptly accountable for their actions. And the union’s stubborn commitment to a culture of physical force without effective constraint is demonstrated by its objection to a prohibition against the use of physical force even in response to mere verbal provocation.

The practical political reality is that the union exerts its influence not just with the corrections commissioner but with City Hall. Consequently, even with the appointment of a corrections commissioner less inclined to defer to union demands, without the political support of the mayor in the face of union opposition, the commissioner will have a difficult time implementing needed reforms. For that reason, the appointment of a receiver is necessary, not so much to supplant the corrections commissioner but to temporarily replace the mayor as the authority to whom the commissioner reports. Such a receiver, empowered with the authority routinely granted to waive provisions of contracts, including provisions of collective bargaining agreements that present obstacles to reform, can provide the support needed by the commissioner to finally achieve full and effective compliance with the decree. 

Michael Jacobson: Focus, without fear or favor, till the job is done — no matter how long

At this point, it is fairly common knowledge among the “expert” classes and a good portion of the general public, that the New York City jail system is in a state of crisis. Deaths of incarcerated people, overall violence, stabbings and slashings, use of force and missed medical appointments — all at near record highs (even with a small downturn in some of these metrics in the last several months) — and a general sense of chaos are now hallmarks of this system where it currently costs almost $500,000 annually to incarcerate one person. And while the building of the new borough jails and the planned closing of Rikers Island will be a huge step forward, it will not be enough to bring far-reaching and systemic organizational and culture change to the Department of Correction. The goal of this change would be to create a system based on dignity and human rights, where violence of all sorts is the exception rather than the rule, and normalization and reintegration are the guiding principles for the mission and vision of the agency.

The only path toward a yearslong process that rigorously and formally reimagines how a jail system should be run — including the requirements, training, supervision and discipline for all those who work there — is the appointment of a receiver by the federal court. I say this for a couple of reasons. The first is that a serious organizational change process — one that reimagines a new paradigm for how a jail should be run and is transparent — involves, in a very real way, labor, other City agencies, formerly incarcerated people, community-based organizations, local and global experts, the mayor’s office and City Council. And it will by necessity take a number of years. There is no turning around, in the short term, an agency as large and complex as the Department of Correction with its currently ingrained culture. This means almost by definition that it cannot be done by a mayor, and the reason for that is that the median tenure for a New York City Correction Commissioner over the last few decades is roughly two years. The constant and predictable turnover in corrections commissioners (not to mention mayors) is completely antithetical to a formal, rigorous and frankly difficult political process to create and implement a new way that jails are run.

Second, this process must necessarily be overseen and directed by someone who will not only have the tenure to finish it but also the political independence to weather the inevitable blowback from any number of places, including the mayor’s office, labor unions, advocates and an assortment of elected officials. It is axiomatic that institutional and political self-interests will play themselves out as a plan is developed that implicates staffing, oversight, budget and labor contracts, and only someone who has a level of independence and moral authority (and political acumen) will be in a position to see this difficult and complicated process through to the end.

The City will not be moving into the first borough-based jail for another several years, and it cannot move into that jail, or any of the others that will come online shortly after that, with the same operating principles, policies and organizational culture that it has now. That would be a failure. The City is spending upwards of $16 billion on new jails. But only reimagining and then implementing a system based on human dignity will make that investment worthwhile. The only realistic plan to accomplish this is the appointment of a federal receiver.

Sarena Townsend: To gain accountability, lose undue union influence

Over the last decade, the New York City Department of Correction (DOC) has been governed by five different commissioners. That is a new commissioner every two years. And no matter the competency of these commissioners, none has succeeded in fixing our jails. And none will, so long as the correction unions — including the officers’ union, COBA, and the Captains’ and Assistant/Deputy Wardens’ Associations (CCA, ADWA) — are in charge.

The inability to hold staff accountable has long impeded the Department’s reform. And one of the reasons for inconsistent — and sometimes non-existent — discipline is a commissioner’s fear of the unions, who prefer the status quo over progress. For example, during COVID, when staff were calling out sick at unprecedented levels, officers who worked civilian desk jobs or other unnecessary posts refused to redeploy to jails where they were desperately needed. Some of those officers even feigned illness and called ambulances to pick them up from the parking lot rather than work in the jails. Instead of encouraging those officers to do their jobs, which would also help their exhausted colleagues who were working triple shifts, correction union leaders suborned a staff revolt: all of a sudden, staff began submitting piles of work orders saying their busses were unable to take detainees to court due to minor issues like a damaged windshield wiper. It was the oldest trick in the book, dreamed up by convicted felon and former COBA union president Norman Seabrook, reinvigorated in 2020. It is also only one of many examples of union interference with staff accountability. 

Correction union leaders wield unmatched power on Rikers Island, and they outlast commissioners. In fact, that longevity is their greatest power. “Unfavorable” changes that one commissioner makes can later be reversed when a new commissioner takes the job and feels pressure to placate aggressive union leaders. Commissioners fear that upsetting the union will cost them their job; and they are right This power imbalance, where the commissioner has the title but the unions have the influence and tenure, means that a commissioner can rarely make lasting change in the jails. And when a commissioner dares to discipline staff, that is reason enough for the union to push them out.  I know this, in part, because it happened to me.

Thus, union leaders, not the commissioner nor the city, run DOC. That is why DOC has not reformed itself and why changing a commissioner in the hopes for a better DOC is naive and futile. A federal receiver, impervious to union intimidation due to their own superseding authority, will be able to do the job a commissioner cannot. In short, the next leader of DOC must be able to override the union; something the City has never been able or willing to do.