Dying in Darkness on Rikers Island

“The issues raised in this Special Report [the failure to report death and life-altering injuries among the incarcerated people] raise profound uncertainties and significant questions about whether the Commissioner and agency officials are capable of managing such serious incidents, have the requisite objectivity and transparency necessary to address such incidents and advance the reforms, and are capable of engaging in effective collaboration with the monitoring team.”

-Special Report of the Nunez Independent Monitor, filed with the U.S. District Court for the Southern District of New York, May 26, 2023 (pages 17-18)

Jails are closed societies in the best of times. By their very nature, whatever happens, for better or worse, happens behind locked gates. Nowhere is this more true than in the New York City jails, marooned on Rikers Island in the East River, making difficult even the “natural surveillance,” as one public defender once described it to me, of visits from family and lawyers. But as the jails have spiraled into a condition of brutal collapse, instead of the “disinfectant of sunlight,” the city government has shut off access to key information that might improve conditions, stiff-arming the public and oversight authorities alike in an increasingly anti-democratic trend. 

Although the jails are now entering the eighth year under a federal consent decree aimed at abating a “culture of violence” of unconstitutional proportions, conditions have only gotten worse. Last year, the City reported 19 people who died in custody or soon after being released in mortal peril, a rate not seen since 1996.

At one time, the City’s inability to improve could be chalked up to ineptitude — a fixable condition. But a report released into the dead of the Memorial Day weekend by the federal monitor overseeing jail conditions chillingly demonstrates that the ineptitude has a heavy helping of malice mixed in. It is not just that the city government is unable to comply with the consent decree, it is that it is aggressively unwilling to abide by the rule of law. 

A number of former city correction commissioners, the City’s former corporation counsel who led the negotiations leading to the consent decree, several elected officials and former public officials, including me, have called for a change in governance — not simply the replacement of one mayoral appointee with another, but the installation of a different kind and degree of power in the role of a court-appointed receiver. Unlike the monitor, the receiver would stand in the shoes of the city administration but would have powers beyond those of local government officials, permitting it to cut through the regulations and practices that impede improvement. Overcoming the myriad impediments to good governance could help achieve the humane jails that the city has demonstrably been unable to fix. (Vital City, together with partners, has written extensively and sponsored forums on the causes of dysfunction that a receiver could address).

Only the court has the power to effect this kind of necessary change. And the first steps could be taken at the June 13 emergency hearing the court has set in the wake of the monitor’s astonishing Memorial Day report. Here, I propose some steps and lay out the support.

The unholy marriage of the inability to control brutality with the unwillingness to obey the law

Over the past eight years, the federal monitor, Steve Martin, has regularly reported to the court on the City’s progress or lack thereof in meeting the requirements of the consent decree. In thousands of pages, he has detailed the complete collapse of the department — accountability, management and security — and provided detailed instructions on how to fix those profound problems. Sometimes, the challenges are so great that Martin rings a five-alarm fire bell in the form of a “Special Report.”

The Special Reports, letters and orders pressing for immediate action now well outnumber the workaday status reports (27 vs. 12). In March of 2022, in language rarely seen in a government report, Martin warned that “the jails remain unstable and unsafe for both inmates and staff.“ As he said: “these high rates [of violence] are not typical, they are not expected, they are not normal.” (Emphasis in original.)

Since then, violence has skyrocketed, making the goal of reaching even the unconstitutionally violent conditions of 2015-2016 but a dream: In 2022, deaths occurred at more than twice the rate as at the time the consent decree was signed, stabbings and slashings 6.6 times and uses of force at 9.6 times. The nature of the incidents reflects the extent of the breakdown in staffing, management and training, among many other things: one man choked to death on an orange in an unstaffed unit as his fellow incarcerated people banged on windows and doors to attract attention; another man hung himself in full view of officers, as a supervisor rejected pleas for help because she thought the man was faking.

But even in this subset of hair-on-fire monitor missives, last Friday’s stood out. This time, with the brutality of the jail conditions bleeding through on every page, Martin called out the apparently intentional withholding of information regarding the death of one person and “life-altering injuries” afflicting four others, one of whom has now died.

The effective performance of the monitor’s job — to bring the City into compliance with the federal consent decree — depends upon the City providing a full, frank and prompt accounting of incidents of violence and harm. (Indeed, forthrightness about information is a foundation stone of effective governance, even in the absence of patrolling authorities). Instead, as the monitor wrote, he learned about one death from the newspapers — a man, Rubu Zhao, threw himself from the upper tier of a mental health unit to his death on the floor below. The other four incidents came from tipsters days after the department knew. 

Like the facts behind some of the 2022 deaths I described earlier, these incidents reveal the depth of dysfunction in the running of the jails. For example:

• James Carlton, 40, was restrained and tackled so forcefully that he is now paralyzed from the neck down. The monitor learned of this 11 days after it happened. 
• Daniel Cruz, 39, was badly beaten by other incarcerated people, left naked and unattended for several hours, as officers passed by, until emergency surgery was performed. The monitor learned of this two days after it happened, and the jails rebuffed his request for a briefing. 
• An 86-year-old man who allegedly refused to leave the admissions area was rear-cuffed and left alone for four hours in a pen with no toilet or sink. He was finally transported to an ICU for a potentially life-threatening blood clot.

There is a macabre dog-ate-my-homework tone in several of the official explanations for the “life-altering” injuries. In one, Correction Commissioner Louis Molina explains that the man fell over tying his shoes because of a pre-existing injury, and it was that fall that resulted in his current quadriplegia. With respect to the man with life-altering injuries who has since died, Joshua Valles, the commissioner insisted that there could be no malfeasance on the part of officers and thus no investigation warranted because the symptoms were simply a headache. It has now emerged from the autopsy that Valles’ skull was fractured.

The City’s anti-corruption agency, the Department of Investigation (DOI), is looking into all five incidents. DOI has the power to refer criminal charges to the city’s District Attorneys and United States Attorneys.

In reading the City’s responses, there is also a new note of impatience and arrogance in the face of inquiry, one that has apparently hardened into obdurate disobedience of the law. The jails commissioner back-handed the monitor’s complaint on Cruz, saying, “I don’t know what you would expect,” a particularly surprising reaction because under law, any evidence of potentially criminal activity would need to be referred to investigators or prosecutors. 

Molina now baldly asserts — in the manner of a schoolyard taunt of “make me” — that he is not required to report deaths to the monitor at all. On Wednesday, this remarkable assertion was followed by the Department of Correction’s announcement that it would end the practice of announcing deaths to the public. And on Thursday, the mayor rushed to his commissioner’s aid with a statement that torques the norm of expected standards of behavior and performance by public officials: Limiting information to the public is “within the boundaries of not violating any laws.”

The cooking of the books has been happening down some side alleys of governmental administration as well. Compassionate release, a humane practice of releasing those close to death, has taken on a more cynical cast. Last year, three people were compassionately released. As documented in the press, the commissioner instructed his staff by email, in an unguarded moment, to get one of the people “off the department’s count” — that is, to ensure he would be released and thus not added to that year’s mounting accounting of the dead. Of the five incidents in the monitor’s Memorial Day report, two have since been granted compassionate release. One, Valles, has died, and the second, the 86-year-old, is in the ICU.

The handling of information on deaths and serious injury raises pressing questions in light of the monitor’s report: Have there been other deaths this year that DOC has not reported? Has the department used “compassionate release” in additional cases, not yet public, as a way to ensure that deaths are not added to a public count?

Culture of opacity

From Day 1, on some days more brazen than others, hiding the ball has been the modus operandi of this administration. On the first day in office in January 2022, Molina, then the newly appointed jails commissioner, fired the well-regarded deputy commissioner of investigations who was responsible for accountability — that is, ensuring that there is just and swift punishment for malfeasance, whether smuggling in drugs and razors or beating up incarcerated people (in the parlance of the consent decree “excessive use of force”).

Of course, every administration is entitled to replace high-ranking officials with their own picks. But as emerged in press accounts subsequently, the firing was because the deputy commissioner refused to agree to the wholesale dismissal of a set of cases. A revolving door of replacements followed, and with each month that passed, a weakening in the penalties for misconduct, a sweeping of some cases under the rug and a pleading out of others for modest punishments. The latest investigations chief either jumped or was pushed into retirement in the wake of evidence that he had simply failed to investigate scores of cases, while others in the department settled cases on the cheap.

All the while, the administration has weakened the city’s Board of Correction — the only oversight agency that has full run of the jails and full access to the kind of information the jail administrators do, a crucial and powerful weapon in ensuring oversight. It has done so by:

• refusing to comply with the law that requires the submission of videos of uses of force to the board – key evidence in brutality cases;
• forcing out the executive director of the board in apparent retaliation for her prompt fulfillment of journalists’ freedom of information requests; and
• attempting to limit the number of public meetings that the Board holds.

What the court should do now

The court’s job is to assess progress in compliance with the consent decree and order remedial action if necessary. Spurred into emergency mode by the monitor’s March 2022 Special Report, the subsequent 15 months have been a languorous affair: The parties appear in court — it is true that the commissioner has been ordered to be present, a sign of the seriousness with which the court takes this proceeding. But the long court conferences follow a pattern in which each of the parties tells its version of the facts of the progress or lack of progress. While ineffably courteous, the court does not test or try to reconcile the often opposing facts presented, and thus the path to resolution is murky. Nineteen people have died during this emergency period.

The Legal Aid Society (and on some days the United States Attorney’s Office) argue that the current administration does not have the power or will to effect change and has requested permission to file a motion to show cause as to why a federal receiver should not be allowed. The court has denied this motion.

It is hard to see what there is to wait for. The filing of a motion merely permits the court to hear evidence that is otherwise unavailable to her because the sole source of information is the monitor, who in turn depends on the Department, whose bona fides have been repeatedly called into question.

On June 13, the court will hold another status conference, relating this time to the specific charges leveled by the monitor. It is an existential moment for the credibility of the court and for the chances of improvement in the city’s jails. Given this dire moment, these are the judge’s three imperatives in that conference:

• order the city to report deaths timely to the monitor and to the public;
• order the city to report to the monitor and the public which individuals have been compassionately released and subsequently died; and
• grant the plaintiffs’ request to file a motion for an order to show cause why a receiver should not be appointed.

Time to break the gridlock and move towards sunlight.