What history says about how change comes about
As we watch the jail wars over Rikers Island from the West Coast, we are concerned. Together, we have over 50 years of experience watching criminal justice reforms and prison and jail conditions litigation, one as a researcher and the other as a researcher and litigator. The recent history of reform efforts at Rikers Island does not give us much encouragement for its future.
Conditions in New York City’s jails are terrible and have been as long as anyone can remember. Still, Rikers Island now houses fewer than half the number of people it did 20 years ago, and its budget is twice what it was then. Despite a dramatic decline in crime and the jail population; ongoing reform efforts; increased funding; extensive litigation; consent decrees; court orders and a library of reports by experts, consultants, special monitors and masters; continuous news coverage; and earnest promises by public officials, significant problems at Rikers Island remain — and perhaps are expanding. Consider these expectations for the future: Low jail population projections, skyscraper jails in Chinatown and other locations and the relocation of troublesome inmates somewhere else. What could go wrong?
Further, plans now in place, or at least some of them, appear to us to represent the triumph of hope over experience. This said, the problems of Rikers Island are not unique to New York City. Unfortunately, they are all too common in other big cities, and indeed for jails in communities of all sizes.
As we review the various court orders, consultant reports, agency responses and plans, we note a disconnect. Courts have repeatedly found that Rikers Island is a vile and dangerous place. An unending pattern of violence — inmate-inmate, inmate-guard, guard-inmate and self-inflicted — is endemic. Deaths and more deaths. A high proportion of unattended inmates with acute mental illness, substance abuse, homelessness and combinations of those problems.
The Southern prisons were modeled after the slave plantation. Indeed, some were situated on abandoned plantations — Tucker Farm, Cummins Farm, Angola, Parchman Farm — and they often returned a profit to the state.
The findings are horrific; they remind us of prison conditions uncovered in prison litigation in the Deep South in the 1970s and 1980s, and the squalor of jails reported in England by John Howard in the late 18th century and by G.W. Cable in his reports on Southern convict work camps in the late 19th century. But there is one crucial difference between New York and these other institutions: New York’s jails cost the City a fortune, and these other earlier institutions cost the state next to nothing and at times even brought in revenue. Put simply, the problem in New York is not a lack of funding.
The Southern plantation model prisons were ended in the 1980s by creative lawyers and tenacious judges who relied heavily on monitors and special masters. There is by now a small library of books and articles providing accounts of the development and impact of these prison and jail cases, including one by the current monitor of the Rikers consent decree who played an outsize role in the Texas prison litigation, and another by one of us. Change was slow and incremental. At first judges defined the problems as violations of due process, equal protection and prohibitions against cruel and unusual punishment. At some point, they realized this was insufficient. They could not reform a prison if the institution was unrecognizable as such.
The Southern prisons were modeled after the slave plantation. Indeed, some were situated on abandoned plantations — Tucker Farm, Cummins Farm, Angola, Parchman Farm — and they often returned a profit to the state. They did this by using brutal convicts as guards, housing inmates in crowded, unguarded dormitories, denying basic medical services and working convicts under the eyes of armed convict trusties. Recoiling from the plantation model, judges asked “What should a modern prison look like?” and turned to experts from other states to provide an answer. Then they set about making policy, taking incremental steps to conceive and construct a functional prison.
Judges, of course, know little about running a prison, but they are likely to have previous experience in public service and know something about effective public administration. The first major conditions case concerning the Arkansas prison system, Holt v. Sarver (1969-1999) was presided over — indeed, created by — federal judge J. Henley Smith, who had previously served as a bankruptcy referee, as general counsel for the Federal Communications System and as director of the Office of Administrative Procedure in the Department of Justice. His successor on the case was Judge G. Thomas Eisele, who had been Governor Winthrop Rockefeller’s chief of staff when prison reform was the governor’s top priority. Judge William Wayne Justice, who “managed” the massive systemwide Ruiz v. Estelle case in Texas, drew on his extensive experience handling school desegregation cases in East Texas. Similarly, in at least two extended second-generation prison cases in California involving delivery of medical services and conditions in solitary confinement, Plata v. Schwarzenegger, federal Judge Thelton Henderson drew on his experience with recalcitrant officials when litigating voting rights and school desegregation cases in the South in the 1960s.
In the Arkansas cases, Judge Henley Smith in effect served as his own special master over a period of six years. His successor, who had firsthand experience dealing with the State’s prisons, eventually appointed a well-known expert as special monitor to oversee developments and make recommendations to the court. Judge Justice appointed a highly regarded expert as a special master, who in turn employed a staff to plan the reorganization of the Texas Department of Corrections. And in Plata v. Schwarzeneggerin California, Judge Henderson, frustrated with the state’s failure of resolve, wrote a lengthy opinion explaining the urgent need to appoint a receiver to remedy “incompetence and indifference” and eventually appointed J. Clark Kelso, a respected law professor and former head of several state agencies, as the receiver to run the Department’s medical health care unit. In short order, he dismissed several officials and replaced them with his own team. That team oversaw the system’s health care unit for the next 15 years, dismissing officials, reorganizing the delivery of health care and badgering the state for more funding. Eventually, Judge Henderson ordered the release of over 30,000 inmates in order to relieve the overburdened healthcare system.
Considering the duration and the magnitude of problems at Rikers Island, it is surprising that a receiver was not appointed to take charge years ago.
Judge Henderson was not the first federal judge to appoint a receiver to oversee the restructuring of a public institution. Several judges in the South in the 1970s placed school districts in receivership for failing to develop meaningful desegregation plans. In 1979, in Pugh v. Locke, Judge Frank Johnson appointed a receiver to reorganize the Alabama Department of Corrections in response to the state’s failure to be responsive to the court’s orders. In some instances, judges have served as their own “receivers.” In a Texas prison case, the special master (and staff) performed receiver-like functions.
Unless a judge is willing to devote near full time to an institutional reform case or is satisfied with symbolic responses (as some judges in the Southern school desegregation cases were), it is imperative for them to have eyes and ears to assist in the reconstruction of a failing institution, and the voice of a trusted agent who can speak, at least informally, in the name of the judge. The appointment of a receiver, with authority to appoint, dismiss and reorganize, is especially important if the leadership and staff of an institution resist change. But even when officials initially welcome intervention, their stance is likely to change if further inquiry by the court or a receiver reveals that failure of leadership is one of the sources of protracted failings.
Still, a judge and staff can only do so much. In reorganizing prisons and jails, judges have not tried to reinvent the institution. Rather, they and their staffs have cajoled custodial institutions to adopt conventional and long-held standards developed for large-scale institutions set by the American Correctional Association and professional organizations of dieticians, heating and sanitary engineers, and medical and mental health associations, as well as cajoled officials for more funding. In pursuing this, judges have also insisted that prison officials adopt and follow standard features of bureaucratic organization, supervision and control, accountability and the like, and often have had to oversee the removal of ineffective staff and management, vet the hiring of new personnel, oversee reorganization, press for tighter supervision, insist on recordkeeping and more. Implementation is a developmental process, not a straightforward act of compliance with a predetermined plan.
It can be long and arduous. Holt v. Sarver lasted 17 years, from 1965 to 1982; the precursor to Ruiz was filed in 1982 and wound down in the 1990s. Their paths are akin to that of mountain climbers who, as they move upward, confront one false summit after another. But the judges in the earliest conditions cases described above stayed the course, and the mountain was conquered.
In the South, judges held that the plantation model prisons in effect were bankrupt, and appointed experts who acted like receivers to reconstruct the failed institutions. In most cases, their teams were effective, and the new institutions, while far from ideal, have nevertheless stood the test of time. Most Southern prisons still lag behind the rest of the nation, but they are run as bureaucracies, staffed with professional personnel and accredited by national organizations. Violence is a small fraction of what it once was, and certainly prisoners no longer need to sell their blood in order to pay for medical services. Inmate deaths are now routinely investigated.
This idea caught on, and in still other seemingly intractable conditions cases, judges have in effect declared jails and correctional systems or parts of them bankrupt and appointed receivers to reorganize them. Federal Judge Thelton Henderson in the Plata case, dealing with inadequate medical care in California prisons, placed all responsibility for medical care under the management of a receiver in 2009. The same receiver held this position for well over 10 years. Once he had ordered the prison to create positions and hire staff to provide basic medical services, he then had to deal with inadequate medical care due to overcrowding. Now the receiver has had to press the department to fill authorized vacancies faster.
Federal judges have also appointed receivers to reorganize jails in more than half a dozen communities, including Wayne County, Michigan; Greenville, Mississippi; McDowell County, West Virginia; and New Orleans (currently appointing an independent jail compliance director). Time will tell how they have fared. By now, the idea of a receiver in conditions suits has been planted and is likely to take root and grow.
As long ago as the early 18th century (see Barnardiston’s Reports: 1740-1741), common-law judges recognized the social value of bankruptcy, the orderly dissolution and distribution of assets and, later, the reorganizing of a company to get it back on its feet. This was especially true for businesses too big to fail and for public utilities that provide essential services. The recent use of special masters and receivers to reorganize prisons and jails is but a small step in the evolution of this idea. Like public utilities, jails and prisons cannot be dissolved, and so some institution — the courts, as a last resort — must step in to reorganize them.
Considering the duration and the magnitude of problems at Rikers Island, it is surprising that a receiver was not appointed to take charge years ago. But as obvious as it is, the process of getting from here to there is fraught. Like California’s prison system, Rikers Island is the subject of a number of far-reaching suits, each addressing a different facet of a gigantic mess. In California, the receiver in the Plata case charged with reordering prison medical health care has been quite effective in pursuing this task. Notably, the class of inmates requiring mental health care covered by the litigation in Coleman v. Newsom has benefited to some degree by the Plata receiver taking over certain functions that pertain to the delivery of both medical and mental health care — overseeing prison pharmacies, medical records and other services such as nursing.
Yet, the Department of Corrections’ provision of mental health services remains inadequate, mired in seemingly endless litigation. As we write this, lawyers representing the Coleman class and the state of California are jointly requesting the court to place mental health care into the hands of the very same receiver who administers medical care. The lesson: There should be one receiver for the entire system of health care, not just one of its several parts. This is easier said than done, since cases spring up independently and are brought by different people for different reasons and at different times, often years or even decades apart. Such may be the challenge of appointing one receiver for all of Rikers Island.
City officials appear to pin their hopes on a shifting cast of administrators and optimistic consultants with new plans.
There is still another reason for a receiver in New York. There appears to us to be a disconnect between the findings and orders of the courts and the substance of the most prominent and widely discussed reforms in the making. The courts find endemic violence, helpless and unattended inmates, callous treatment, mistakes, deliberate indifference and a host of problems that reveal an ineffective and inefficient organization — a pattern and culture of indifference that points to organizational weakness and lack of meaningful supervision, oversight and leadership. In contrast, City officials appear to pin their hopes on a shifting cast of administrators and optimistic consultants with new plans.
Would-be reformers point to outmoded facilities, high bail, long waiting times for hearings, lack of external social services and faulty recordkeeping. Their solutions: new borough-based jails (a 30-story jail in Chinatown!), more lenient pretrial release conditions, fewer continuances, faster turnaround in the courts, relocation of problematic inmates elsewhere, better recordkeeping and the like. The assumption is that the jails would operate more humanely if these external changes were made. No doubt they would.
However, these reform proposals identify “nonreactive causes” of failure — that is, the problems that are not people, including old facilities, costs and longer processing times. Note that these “causes” are not identified as individuals, such as leaders who don’t lead, managers who don’t manage and guards who don’t guard. Such “reactive causes” can and do push back. Vigorously.
It is far safer to focus on nonreactive causes of problems, but doing so may sidestep confrontation with the most difficult causes of failures — supervision, management and other bureaucratic and professional weaknesses. These are reactive causes of failure, which generate massive pushback, especially in local governments, where personnel issues are fiercely political. Disciplining and firing management and staff is often a form of political suicide.
Focusing on nonreactive causes and solutions is more comfortable. It certainly generates less opposition. The shift from centralization to decentralization and back is a ping-pong game familiar to all students of organizations. Getting a better class of clients by exporting problem clients elsewhere is another familiar standby. New is always better than refurbishing the old. Wildly optimistic projections (e.g., 3,300 inmates by the end of the decade!) is an oft-used parlor trick. Yet these recipes don’t work; time and time again, they permit officials to kick failures down the road for future administrations to deal with. Meanwhile, the problems compound. As appealing as they are, such solutions do not confront structural problems that lie behind chronic shortcomings.
All these factors are good reasons for the appointment of a receiver for all of Rikers Island. But even this will fail to make a difference if the receiver lacks stature and other key players in urban government do not sign on. Two questions: Does a judge have the courage to make this appointment? And if so, who would take the job?