The Fatal Cost of Waiting: What Must Happen Now in the City’s Jails

Something is very wrong in New York City’s jails.

In June and July, five more people died in city custody, bringing the total dead to 11 this year. At this rate, the City is on track to surpass last year’s astonishing death toll of 16.  Violence is out of control, with no sign of abating. Stabbings and slashings are up 39% over last year, 379% since 2019 and 520% over 2016, the year after the City agreed to submit to monitoring under a consent decree aimed at ending the “culture of violence” in the City’s jails. Every day, up to a third of staff does not come to work, a dereliction that is both the cause and effect of the rampant violence. Going to jail – intended as temporary detention while a case is being resolved or for a short sentence – should not be a matter of life, death or maiming. But now that is the gamble.  

At this rate, a reduction even to the constitutionally impermissible levels of violence in 2015 would be a victory. 

Four months from now, the City, the Monitor and the plaintiffs in the case will be back in court to assess progress on an Action Plan the City has developed. Four months is a long time to wait when a house is on fire, especially when the outcome is unlikely to be radically different. 

Over the past six years the Monitor has issued thousands of pages of detailed recommendations, backed up by three remedial court orders. But, as the Monitor has noted, “actions by the City and the Department have failed to address the underlying problems, despite these issues having been raised by the Monitoring Team over and over again for years.” 

As conditions continue to spiral out of control, the central issue is who can fix the jails and what power is required to make sure the fixes last. The City has asserted that fixing the jails is entirely within its power. This assertion has been met with some skepticism from the Court and the plaintiffs (represented by the United States Attorney and Legal Aid).  Each has noted the durability of the deadly dysfunction spanning many years and administrations, as well as the legal, regulatory and political obstacles the City has persistently pointed to as the impediment to progress. 

Haunting the proceedings is the outsized power of the unions and the difficulty of negotiating even common-sense changes in work rules. The memory of union officials closing the bridge that connects Rikers Island to the rest of the city, thus halting all court proceedings, remains a powerful evocation of what the union is willing to do when push comes to shove. And the decisions city officials may need to make can be in conflict with political alliances. As the Monitor noted: “[T]he City and the Department will undoubtedly need to make difficult decisions that may not be politically beneficial.”

In this context, one thing is abundantly clear: monitoring, even by this highly experienced team, is not enough to spur the actions that could change the deeply entrenched culture of brutality in the jails. The United States Attorney, several former New York City Department of Correction’s commissioners, a Corporation Counsel for the City of New York and others, including me, have all raised the idea of the appointment of a federal receiver.

A receiver has full operational authority to run the Department. An expert in corrections or organizational management appointed as receiver stands in the shoes of the Commissioner and even the Mayor and, in addition to wide powers conferred by court order, can petition the court for additional authority to override contractual or other legal obligations. A court can empower a receiver to cut through collective bargaining provisions that impede the establishment of a functioning department, for example. The receiver establishes the structures and processes necessary to operate safe, humane jails and then delegates the authority for running the department back to the city. There is precedent in other jurisdictions for doing just that.

To be clear, I and most others view this as a last resort. I have been a public servant for 30 years, have seen the good that government can do, and believe city government—not an “imperial judiciary,” working through an unelected official—should run city agencies. But in this case, the City has demonstrated that lifting the jails out of the current deadly, untenable circumstances is beyond its capacity. And each day that goes by without effective intervention represents another day in which avoidable harm is visited on both the people held and the people who work in our jails. 

The law sets a high bar for appointing a receiver: courts “employ a balancing test and look at factors such as: the presence of a grave and immediate threat of harm to the plaintiffs; the failure of less extreme measures; limited utility of continuing to insist on compliance with current orders; lack of effective leadership; bad faith; waste of resources; and likelihood that a receiver will be a timely and effective remedy.” (See Sara Norman’s explainer “What is a Receiver?”)

The long-standing state of crisis in the City jails signals that something more than mere elbow grease and additional money is required.  After all, many previous administrations, neither fools nor knaves, have bent themselves to the task of improvement. The City has entered into five previous consent decrees, spanning the administration of eight mayors and 24 commissioners. Extraordinary resources have been poured into the jails, now topping more than $550,000 per incarcerated person per year. The jails are the most richly staffed in the world, even when a third of the workforce doesn’t show up. As the Monitor has stated, “despite the bloated size of its workforce and its extraordinary budget, the agency has not seen an appreciable improvement in the appalling conditions of confinement that are at the heart of the Consent Judgment.” 

In addition to this history of failed efforts and accelerating deterioration, the Monitor has also provided a thorough record of the complete collapse of the Department’s management structure. Abandoning the notion that the City would be able to address the 300 provisions of the Consent Judgment, the Monitor implored the Department to focus on fixing four foundational areas: “1) ineffective staff management, supervision, and deployment; 2) poor security practices; 3) inadequate inmate management; 4) limited and protracted discipline for staff misconduct.”

Put another way, everything is broken. The New York City Department of Correction must be rebuilt from the ground up. 

The City oversees eight jails. They are mini-cities, complicated to run. At the most basic level, they need strong leadership, someone who ensures they are well staffed and that the staff is making the rounds to provide care and custody. So that people do not die in their cells from lack of attention.

Hiring trained and competent middle management to run the jails has been the Monitor’s persistent call but maddeningly elusive to accomplish. Union rules and other regulatory structures prohibit the hiring of staff from outside the uniform ranks, and the defection of large numbers of management uniformed staff over the past 10 years has left a large hole that it is impossible to fill from within. 

A federal receiver, if appointed, could cut through this by making an application to the judge to permit hiring middle managers from outside the Department, as part of a broader endeavor to rebuild the management, staffing, training and morale of the Department. In Chicago, a receiver did exactly this, working with the union, the department, defenders, local government and others. 

This direct and effective route, however, is not how New York City is operating. Instead, the Department has created a highly unusual management structure designed not to ruffle union feathers. Under this new structure, the warden of each jail will report to the commissioner, thus jumping several ranks in the reporting scheme. While this admirably signals the direct concern of the commissioner, it is utterly unworkable operationally. In effect, the commissioner will be responsible for overseeing daily operations at all eight facilities.

In addition, new civilian positions have been created to work as partners with the wardens, essentially operating as co-heads of the jails. Except, the civilians are reporting through a separate civilian chain of command, four ranks down from the commissioner, undermining their authority and creating the conditions for conflict with uniformed wardens where there should be cooperation. This Rube Goldberg gets around, for now, the union and regulatory issues. But what happens when there is a misstep in relations? Or a new administration comes in? The implicit consent could be withdrawn and even this jury-rigged structure, for whatever value it provides, would collapse.

Appointing a receiver is not a silver bullet, but there is no better solution on the table or in sight.  The legal road to putting a receiver in place could take months or longer, and that process hasn’t even begun. 

As things stand today, the Court plans to assess the City’s progress in November and then decide whether further consideration of a receiver is warranted. The jeopardy is that the November date will arrive without durable progress by the City and also without an alternative plan, leading to yet more waiting, more lives lost and further erosion of an already dysfunctional department. The Court can and should do more, by requiring the immediate start of a step-by-step analysis of what it will take to fashion a functional department, not Rube Goldberg workarounds. And crucially, the court must know what changes in law, regulation and other agreements—formal and informal—are needed and who has the power to make those changes.

The drumbeat of uncontrolled violence and dysfunction gets louder every day, but collectively we seem to have tuned it out. It has, apparently, lost the power to shock us to action although it is a powerful shock to our conscience.  The complete failure of the jails is now being captured outside of a sober Monitor report or dispassionate Court update. We are literally seeing the movies taken inside the jails by those incarcerated, using smuggled cellphones, that show the sheer lawlessness of life on Rikers: slashing in the showers, rampant drug use, broken doors permitting uncontrolled movement. 

This is no rehab job. This is a tear-down.  And if we do not fix this soon – fix, not workaround – we will pay irretrievably in lives and in the legitimacy of both city government and the justice system.