Getting Correction staff to follow the rules, then and now
When Mark Nunez, a teenager detained on Rikers Island, filed his lawsuit against the New York City Department of Correction (DOC) in 2011, he ignited a now decade-long quest for reform in New York City jails. Nunez’s claim that a DOC captain viciously beat him with the assistance of other uniformed officers resulted in a class-action lawsuit and, later, a consent decree aimed at stemming excessive use of force by the jails’ staff against people in custody.
Holding officers accountable for using excessive force was the central goal of the consent decree, which is overseen by a federal monitor, Steven J. Martin. The overall and day-to-day task of accountability, however, falls mainly on two units of the DOC: the Investigation Division (ID), which is responsible for investigating staff misconduct, and the Trials Division, where attorneys seek discipline on cases substantiated by ID, either by plea deal or at trial at a City tribunal called the Office of Administrative Trials and Hearings (OATH), which adjudicates a series of administrative claims across City agencies including Sanitation Department tickets and police-issued civil summonses for quality-of-life offenses. An OATH administrative law judge conducts the trial, writes a report and recommendation regarding guilt (if any) and suggests a penalty. The finding goes to the DOC commissioner, who has complete discretion to adopt or overrule. The commissioner has similar authority over plea deals that the department’s lawyers have reached with staff charged with disciplinary violations.
As Martin took a deeper look into DOC’s handling of staff misconduct, he realized in 2017 that investigations into staff use of force were slow, incomplete and biased, and that the DOC was not seeking severe enough penalties against staff who broke the rules. The Nunez consent decree mandated faster and better investigations, and a new disciplinary matrix with clearer, spelled-out guidelines for how to punish various offenses.
Unfortunately, compliance with this aspect of the consent decree — that is, speeding up case times and improving the quality of the investigations — was not possible for four reasons.
First, the decree increased ID’s caseload by over 900%, from hundreds to several thousands of cases per year. Previously, most use-of-force incidents were investigated by a uniformed jail supervisor. But because Martin found those supervisors to be incompetent, he did not trust them to hold their colleagues accountable. Thus, more (and eventually all) use-of-force incidents were to be investigated by ID, even those where no misconduct was alleged or observed.
Second, the consent decree ordered ID to take additional, frequently unnecessary, investigative steps before closing a case. Third, the decree cut ID’s 18-month statute of limitation to six months to move cases faster. And last, no new investigators were hired to help in anticipation of these changes.
Essentially, ID was expected to do much more work, on many more cases, in a shorter period of time, with more precision and without any additional staff at the outset. As soon as the consent decree was executed, an immediate and massive backlog ensued and, with it, yearslong noncompliance.
The Trials Division — which can only pursue discipline after ID substantiates its investigation — was mandated under the consent decree to seek “swift and meaningful” discipline. However, between the lag in ID due to their new mandates, and a short roster of judges at OATH, the Trials Division was not able to pursue discipline at a speed anyone would define as “swift.” The Trials Division, sandwiched between ID and OATH, simply could not comply with the consent decree: ID took too long to send cases, and OATH was unable to calendar more than 12 cases a month.
Essentially, the Department of Correction’s Investigation Division was expected to do much more work, on many more cases, in a shorter period of time, with more precision and without any additional staff at the outset.
Complicating matters further, OATH judges were unwilling to apply the new, harsher guidelines linked to the newly adopted disciplinary matrix, which violated OATH’s own precedent. Losing at trial and receiving an OATH penalty, therefore, was more beneficial to the accused staffer than signing a plea deal aligned with the new disciplinary matrix. So in practice, the consent decree actually deterred early settlements.
The monitor did not disguise his impatience and frustration at the backlog that inevitably ensued in both ID and Trials. Report after report scathingly detailed DOC’s lack of accountability.
What happened next: An attempt to discipline the system
I’m especially familiar with this history because, in 2018, I accepted the role of deputy commissioner of DOC — and, very early in my tenure, combined ID and Trials. As a former prosecutor at the Brooklyn District Attorney’s Office, I knew the value of working closely with investigators to build a case. Pairing ID and Trials benefited both divisions: The attorneys learned the intricacies of the jails and its confusing paperwork from investigators, who, in turn, learned from the attorneys how best to meet evidentiary standards.
To circumvent the issue of the short OATH calendar, I developed a system to negotiate settlements without OATH. This practice cleared a long-standing backlog, but was upended when Benny Boscio became president of the Correction Officers Benevolent Association (COBA) and instructed his attorneys to refuse to negotiate outside of OATH. OATH then hired additional judges to hear more cases, and it effectively ended Boscio’s obstruction.
To cure the ID backlog, I hired more investigators and developed a new workflow, adding a layer of investigation up front to weed out cases that did not warrant a formal investigation. Under the new intake process, cases were filtered within 25 business days and followed one of four tracks: to the Trials Division for expedited discipline, to dismissal, to corrective action like retraining, or into ID for a fuller investigation.
In time, my team clawed its way into compliance with many of the provisions guiding investigations and discipline. Unfortunately, it worked too well. The optics of moving more cases efficiently through a “harsher” disciplinary system led to a pervasive, misleading and aggressive campaign by COBA, the Corrections Captain Association and the Assistant Deputy Warden / Deputy Warden Association, who wailed that discipline was too tough. Another tactic the union presidents employed was to claim unifying the divisions was a “conflict of interest.” Of course it was not, because of the series of checks and balances by OATH and the commissioner.
Today: A fractured system
In early 2022, the unions won the battle to slow down discipline and water down the accountability when they convinced then-Commissioner Louis Molina to fire me and split ID and Trials into multiple divisions again. The now siloed divisions produce illogical investigatory outcomes and unreasonable, inconsistent discipline.
As an attorney in private practice, I now represent correctional staff at the same OATH hearings I used to oversee. I have seen the department seek termination for a decorated high-ranking woman who missed work because someone crashed head-on into her car, exploding both vehicles into flames. I have defended another high-ranking individual in a matter the department was forced to dismiss after I explained to the OATH judge that there was no DOC rule in existence that my client violated. I represent someone the department falsely arrested; the matter was swiftly dismissed by the Bronx District Attorney’s Office when a lab conclusively, and easily, determined that a children’s balloon in my client’s vehicle was not filled with drugs.
It is not “accountability” if the charges are bogus.
There are ways to investigate and discipline staff fairly. Developing systems without considering the impossibility of implementation is not the way to do it. Neither is capitulating to an aggressive union who has successfully bullied its way into shielding members from necessary discipline. Nor is it ideal to swing the pendulum to a blindly aggressive disciplinary system in order to appease a federal monitor who has, in my experience, been willing to hear and consider dissenting points of view. Presently, the department is still violating the consent decree and has lost the momentum and compliance it had gained.
The future: Compliance via receivership
To reclaim compliance and reach the goal of swift and meaningful discipline, the department must recombine, retrain and fully staff ID and Trials.
Then, the commissioner must resist the scare tactics of union leaders who will inevitably claim that this more efficient system is unduly harsh and unchecked. The commissioner herself, now Lynelle Maginley-Liddie, should remind the union and the staff that she is the final arbiter of discipline and that she can set the tone and precedent within the department.
Next, add an internal tribunal to resolve lower-level disciplinary cases efficiently without resorting to escalation to OATH. Matters that require harsh penalties like termination should continue to be adjudicated by OATH for independent evaluation. However, matters that used to be handled by jail staff before the existence of the consent decree should be heard internally, but by better-trained, unbiased arbiters in its own division within the department.
Here, and overall, a federal receiver would be ideal. A federal receiver is a third party who has power that surpasses even that of the commissioner. The scope of the receiver can be limited to certain areas, such as the investigative and disciplinary divisions. Unlike the commissioner, the receiver reports not to the mayor but to federal Judge Laura Swain, who has been overseeing the Nunez litigation since its inception. A federal receiver has the authority to implement necessary changes without being bound by institutional handshake deals.
To reclaim compliance and reach the goal of swift and meaningful discipline, the department must recombine, retrain and fully staff the Investigation and Trials divisions.
The most notorious example of how accountability fails is encapsulated in the case of Captain Rebecca Hillman, who was working in a DOC jail when a detainee placed a noose around his neck and hanged from his cell, in full view of Hillman and an officer whom she supervised. When the officer made an attempt to cut the man down and save his life, Hillman stopped him, saying the detainee was simply “playing around.” He slowly suffocated in that noose and eventually died. While indicted for criminally negligent homicide in New York County Supreme Court, a charge she was ultimately convicted of, Hillman was able to return to a paid position at DOC because although there was a rule allowing for full suspension of officers facing felony charges, the DOC captain’s union brokered a handshake deal years prior ridding the department of that practice for captains. While many New Yorkers spend their time awaiting trial incarcerated on Rikers Island, Hillman was able to return to her job and make her full salary while awaiting hers. After trial, Hillman was sentenced to six months in jail.
A federal receiver, immune to untoward union influence, unaffected by mayoral elections and willing to work with union and DOC leadership, is likely the only person who can gain sustainable compliance with federal mandates. Someone who is unencumbered and above the politics of favors can institute the needed reforms and training, and stay put long enough to make it work in the long term.