Lessons on Receivership in Correctional Settings

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.