The Limits of Litigation

The New York City Department of Correction (DOC) has been in a state of chaos for decades, its jails plagued by violence, disorder and disrepair. The dysfunction has persisted despite countless lawsuits and numerous consent decrees — and through the tenures of several mayors and commissioners. Many thoughtful, committed and powerful people have tried to stem this chaos, with little effect. As the federal court now considers receivership for DOC, it is important to ask: What can we learn from this history? Are there lessons that could benefit the people who are held in custody, the people who work in the jails, the jail system as a whole and the City itself?

One of the most powerful tools to affect change in a jail or prison is litigation that results in a consent decree. A consent decree is an order by a federal court that lays out specific steps to address the unconstitutional conditions identified in a lawsuit. For the last 54 years, the City jails have been under some form of consent decree. Seven different consent decrees have tried to address many aspects of core jail operations: use of force, training, policies and procedures, overcrowding, sanitation, temperature, lighting, a lack of access to medical care and the inadequate provision of mental health care. But for all the power of federal prosecutors and courts, the record suggests that these consent decrees, and the oversight they bring, have had an extremely limited impact in improving conditions inside jails.

The adversarial nature of litigation means that the focus of the court is tailored to address the narrow issues presented by the parties involved. In 1996, the federal government further limited the court’s focus when the Prison Reform Litigation Act (PLRA) was passed, largely to curb class-action litigation to challenge conditions in jails and prisons. Under the PLRA, relief is limited and “extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.”

The nature of litigation is to attempt to remedy a particular problem. But addressing multifaceted dysfunction in correctional facilities almost inevitably requires an approach beyond the narrowly tailored, because the problems in jails and prisons are often overlapping and intersecting.

There is a long history of litigation and consent decrees involving DOC, starting in the early 1970s and continuing to this day. Michael Jacobson, David Hafetz, Liz DeWolf and I laid out this history in “Beyond the Island: Changing the Culture of New York City Jails.” In 1970, the Legal Aid Society filed a class-action lawsuit, Rehm v. McGrath, challenging the conditions in the Manhattan Detention Center, also known as “the Tombs.” Conditions in the jail had been deteriorating since the mid-1960s. It was overcrowded and short-staffed, which led to people being locked in their cells 24 hours per day. They were denied showers, recreation, visits and court dates, and were forced to eat in their cells. The jail was also experiencing deteriorating environmental conditions. Tensions finally boiled over resulting in a jail uprising. Following the uprising, Legal Aid filed suit challenging these conditions. Under Rehm, the City entered into a consent decree to address the overcrowding; lack of access to medical care, visits and mail; and unsanitary conditions. After the City failed to make progress under the consent decree, the judge presiding over the case ordered the jail closed in 1974, and after some negotiation, the City did, in fact, close the Tombs. Unfortunately, both the people and the institutional problems were simply moved to Rikers.

With the City’s fiscal crisis as a backdrop, conditions on Rikers deteriorated, ultimately leading to another uprising of people in custody protesting overcrowding. This time it was in the House of Detention for Men (later referred to as the James A. Thomas Center, now closed). Legal Aid filed Benjamin v. Malcolm in 1975, again challenging conditions in the jail. Under the same judge who presided over the Rehm case, the scope of the consent decree was eventually expanded to cover conditions across the entire jail system, and it continues on, in part, today.

As monitoring under the Benjamin consent decree continued, Legal Aid continued to file class-action litigation. In 1983, Legal Aid filed Fischer v. Koehler, claiming DOC was using excessive force on individuals held in what is now the Eric M. Taylor Center. The judge found in favor of the plaintiffs. Similarly, in Jackson v. Montemagno, Legal Aid claimed that excessive force was used on people held in the Brooklyn House of Detention (later referred to as the Brooklyn Detention Complex, now closed). That case was settled in 1991, with an agreement that DOC would implement systems for controlling and investigating use-of-force incidents as well as disciplining DOC staff for unnecessary or excessive force.

As Legal Aid was challenging excessive force, the Urban Justice Center filed class-action litigation, Brad H. v. City of New York, claiming that DOC had failed to provide adequate discharge planning for those with a diagnosed mental illness. Under a consent decree entered in 2003, DOC agreed to develop an assessment and discharge plan for continuing treatment, support services, public benefits and housing. That consent decree remains in place today, and DOC’s compliance is subject to ongoing monitoring.

This timeline brings us to Nunez v. City of New York. Legal Aid filed the class-action lawsuit in 2011, again challenging the department’s use of excessive force. The complaint argued that there was a deeply entrenched pattern, practice and culture of unlawful and excessive force. The plaintiffs, including the Southern District of New York, and the City entered into a consent decree in 2015 which set standards on the use of force, training and other core operational issues. A monitoring team was put in place to ensure compliance.

Unfortunately, as the monitoring reports attest, not much has changed in the last nine years other than a reduction in the monitoring team’s confidence in DOC’s ability to address these challenges meaningfully. Indeed, little has changed in the last 50 years on Rikers Island.

DOC has always been a large and complex system. It is now made up of nine jails on Rikers Island, each with its own management and organizational culture. By its nature, litigation focused on conditions in a specific jail or a specific population cannot address the problems of the entire system. Instead of driving a comprehensive approach to reform, the consent decrees have created a pattern of attempted reform by whack-a-mole.

Further compounding the piecemeal approach by narrowly tailored litigation is the fact that DOC also has multiple local oversight bodies, each with a different mandate. The New York City Council has budgetary and legislative oversight. The Board of Correction establishes minimum standards for the department and conducts day-to-day oversight. The New York State Commission on Correction oversees compliance with state law. This is to say nothing of the management from City Hall, press coverage by the media and the oversight from defense lawyers, activists and others with an interest in the jails.

Moreover, the external and internal politics of the jails are often complicated. The Correction Officers’ Benevolent Association, the correction officers union, is politically powerful and often objects to reforms. The majority of the staff on Rikers Island are people of color, often women, many of whom join DOC seeking a path to the middle class or opportunity to help. And they are often coming from the same marginalized communities as the people in their charge. The staff’s best interests — a safe and supportive work environment — can often get lost in the political battles among the union and elected officials. 

Amid all of the competing interests, those held behind bars are often the least powerful. Transforming our jails will require elected officials to spend significant political capital — political capital that incarcerated individuals simply do not possess. The reality is that those locked up on Rikers Island are often out of sight and out of mind.

While the obstacles are enormous, the past several decades have seen significant change. Concerted efforts to reduce the jail population have had an impact. From a high of over 21,000 in 1990, the City’s jails now house about 6,400 people. That’s the good news. The bad news is that those who remain in custody have increasingly complex needs. More than 50% of the population has a diagnosed mental illness and nearly 20% have a serious mental illness (e.g., schizophrenia, schizoaffective disorder, bipolar disorder or serious depression). Upward of 66% of the population are held on violent felony offenses. The length of stay has increased 136% in the last 20 years, from 40 days to over 100 days. These changed dynamics have only intensified the demands on DOC.

The need for change on Rikers Island is greater than ever. Unfortunately, litigation, on its own, has proved insufficient to drive necessary reforms. Without consistent leadership, a clear strategy and a changed organizational culture, chaos will persist. And as chaos persists, DOC will be increasingly unable to meet the needs of those held in custody. 

A clearly articulated vision and mission are essential to any strong organization. And each level of the organization needs to be held accountable to that vision and mission. This is essential to meeting the City’s goals of a smaller and safer system that provides the necessary care to people in custody. The last 50-plus years teaches us that litigation alone cannot accomplish this.