What Does it Take to Govern the Jails?

Jan Ransom: Thank you, Liz and Hernandez. This first panel will weigh in on a question that many have been asking as of late: "What does it take to govern the city's jails?" We have Stanley Brezenoff, a man of many hats in New York City government, including having served as first deputy mayor under the Koch administration and as chair of the Board of Correction, a jail oversight panel, for several years during the de Blasio administration.

We have Michael Jacobson, who served as the correction commissioner from 1995 to 1998, and is now the director of the CUNY Institute for State and Local Governance. And Hernandez Stroud, who we just heard from: senior counsel at the Brennan Center for Justice at New York University School of Law. And Sara Norman, the deputy director of the Prison Law Office, a nonprofit advocacy group for incarcerated people. The Prison Law Office represents all people in California prisons in a lawsuit that led to the installation of a federal receiver over California's prison medical care.

So, let's dive in. I'd like to start with Michael. You and I have talked many times about the problems facing the city's jails, and my biggest question has always been, how did we get here? As commissioner, you managed to drive violence down. It has always been an issue, but what did you do then, and how were the problems different then compared to today?

Michael Jacobson: Sure, thanks, Jan. Let me start with a little historical context in terms of the differences and then dive into the heart of your question. There are a couple of key differences between now and the early '90s when the system peaked at about 21 or 22,000. That was the population then, severely overcrowded. Today, the population is around 6,000. It had been 4,000 a couple of years ago, but it’s still about a third of the size that it was around when I was there and a little before. Right now, as Liz mentioned, there's about one correction officer for every incarcerated person. Back then, there was one correction officer for every two incarcerated people, and even that was a very high staffing ratio. The staffing ratios have only gotten higher, and, as Liz said, it costs around $500,000 annually. It was a fraction of that years ago.

The other thing that's worth mentioning that’s a huge difference between then and now is the length of stay. The time people spend in jail, especially pretrial detainees, has completely deteriorated over the last two decades. The system length of stay used to be around 40 to 50 days, and it's now closer to six months. You cannot keep people in a jail that long and not expect to have all sorts of problems. When you look at the population now, it's not just that they stay longer, but also that about a third of that population stays for a year or more. About a third of that population stays for two years or more. And then there are several hundred that stay for three years. That is a complete breakdown in any notion of speedy disposition. It's an institutional miscarriage of justice.

That's all at the feet of the courts. I mean, the courts have done a horrible job processing cases. That deserves its own panel, but that one fact is present in almost everything we'll talk about today in terms of violence, missed appointments, deteriorated conditions, et cetera. In terms of violence, as you mentioned, it was incredibly high in the mid '90s and peaked there in some ways. It started to come down rapidly with a lot of concentrated attention. It’s hard to say what exactly was the most effective thing that drove down violence back then, but probably the single most important thing was putting huge amounts of funding into programs, programs of all sorts. Jails were turned into drug treatment facilities. We had horticultural programs, high intensity bootcamps, vocational ed. That was done by switching funding from uniform staff to program staff, and the value of programs in the smooth running of jails is well known.

When you think about what's happening now and the levels of violence that Liz was talking about, nothing else can explain it other than lack of capacity and uniform staff, and leadership of that uniform staff. It's essential to running a safe and efficient jail system. This started about a decade ago, so it predates this administration — they inherited this. The system started bleeding experienced and talented uniform leadership and has never really recovered from that. But the trends that we see, especially recently given the size of the population just cannot be explained by any external factor. That is, is the population different somehow than it used to be? Is it more difficult than it used to be? None of that is true. It's a higher percentage of people there for violence, but it's not more people than there were when the system had three times as many. It's all about internal management and leadership capacity. The challenge for the City is how to build that back up in a way that can safely, efficiently and justly run the city jails.

Jan Ransom: Thank you for that. You touched on this a bit, but is it just the fact that the population is staying there longer that makes the problems at Rikers so intractable, or is there more to it?

Michael Jacobson: No, it’s not just that, but that is incredibly important. I mean, you can't keep people in any jail, much less this jail, for months and years and not expect to see huge problems. It's just something that has to be tackled. It's very difficult to do. No one person controls it. It's not the mayor's job, it's not the governor's job. If it's anyone's job, it's the courts’ job, and they have not risen to this challenge. I think they deserve to be put under huge pressure to do that.

There are two issues facing the system now. I don't think any of them are intractable, but fixing them is going to require short-term strategies to start bending the curve on indicators like stabbings and slashings, missed medical appointments, on-time court delivery, suicides, overdoses and self-harm. But even that's not enough. I mean, it's obviously incredibly important to do that, but given the years of lost capacity and leadership, the department really now has to go through a rigorous, serious and open organizational and cultural change process that's designed to answer some very fundamental questions. What is the purpose of jail? What are the qualifications of staff, both uniform and civilian? How best should they be trained, supervised and disciplined? What kind of personnel, training, policies and procedures will ensure that the jails we have are based on the principle of human dignity?

That's a process that has to be transparent and involve not only a variety of local government agencies, but also labor, community members, civil society and especially those with lived experience. What I'm talking about is a hugely intense and difficult organizational change and redesign process to go through. But, especially given all the problems that we see, and especially because all of this is implicated in closing Rikers and opening new, smaller, well-designed borough based jails, the city cannot move into those jails five years from now with the same staff, the same leadership capacity and the same policies and procedures as it has now. There are short-term issues and hugely important long-term issues, and they both have to be addressed simultaneously, and now.

Jan Ransom: Thank you. I want to direct my next question to Stanley. There's been a lot of talk about oversight. We witnessed this year that the jails’ commissioner takes steps to limit that oversight as it relates to the City's Board of Correction. Stanley, as a former chair of the board, can you talk about the importance of its role in the functioning of the jails?

Stan Brezenoff: I don’t think that speaking from the perspective of the Board of Corrections gives the full picture, but in a sense, the approach that's been taken by the administration to the Board of Corrections early on is symptomatic of the overall approach of believing that if you suppress information, somehow the horrendous problems aren't really there.

But the Board of Corrections is potentially an important institution, an organization that the wisdom of many generations has sought to assure is there. It's an unusual organization because it is both a creature of government and an overseer of government. It is monitoring the rights, the treatment of populations that are not generally the highest priority of governance or of interest to the broader public. But it is testimonial to the city of New York that it exists and that its mission is one of protection of constitutional rights and human rights, and ultimately a test of the humanity of the city.

The Board of Corrections inherently reflects some of the issues that were articulated earlier. Corrections is not the favorite function of a city or even a state. It calls for resources that elected officials would love to see go elsewhere. It has a population that does not enjoy political support, and therefore, the Board of Corrections has been part of a troika where, when things are in balance, delicate balance, it has been effective in using its access to information in making the case for reforms, improvement, better standards and so on. But history is replete with examples of where the government has sought to downplay what have emerged as the facts in any situation. Fortunately, I don't think that there has been much in the way of history that parallels what we're seeing now, which is a combination of denial and Orwellian approaches to describing what is going on. The Board of Corrections serves in a way as an instrument that includes diplomacy, includes brokering and includes vigorous advocacy, but to be effective, it requires the support of the mayoral administration.

Jan Ransom: To that point, with the limitations to accessing information obviously  impeding the Board's ability to perform its duties, what responsibility, if any, does the mayor have to ensure that the Board is able to do its job?

Stan Brezenoff: Ultimately, this is one of those cases where the buck stops at City Hall. Now, I'm not suggesting that the Board of Corrections stand on the steps of City Hall and berate the mayor or present petitions. There are other ways to make the case, but you need some possibility of receptivity at City Hall. I've worn many hats in this arrangement over the years. There has to be some ability for the Board of Corrections, perhaps directly with the department, or with City Hall, to make its case and to advocate vigorously, but to be mindful that there is often a balancing act going on. Obviously, some things are not susceptible to compromise. Basic standards of care for the prisoners — especially for the detainees — has to be the moral imperative that impels the Board of Corrections. But there are complexities, some of them related to collective bargaining, some of them related to availability of resources.

But in making their case, which I believe they have done effectively over the years, there has to be some ear, one would hope at both the Department of Corrections and at City Hall, but especially at City Hall. Now, I cannot think of any mayor that loved the responsibility that the city has for the Department of Corrections. Probably Michael can attest to that. There have been some mayors that have steadfastly resisted the responsibility and the allocation of necessary resources. But to simply flout what is a fundamental municipal responsibility and to use the city budget as a tool to punish the Board of Corrections and bend it to its will — which I believe is happening now — has perhaps happened once or twice in history. Again, it's not possible to conceive of a circumstance where the Board of Corrections is not engaged with the mayor. The chair, after all, is designated by the mayor and serves at the mayor's pleasure.

The other members of the Board of Correction also have ties to political appointment. But there is some mixture of advocacy being a gadfly, of using information, of presenting alternatives and of interacting with the union, which the Board of Corrections certainly made efforts to do when I was there because the imperatives of safety and wellbeing extend to the workforce as well as to the prisoners. It's important that the Board of Corrections keeps that in mind. Sometimes it hasn't been as mindful as, in my view, it should be on questions of the safety of the staff. The Board of Corrections is one part — I think an important part — but just one part of this picture. To my mind, not only are we at a point where the dentistry required is urgent, we are also at a point where we have to virtually start from scratch in correcting what we're confronting.

To my mind, that means that parallel to the receivership has to be the closing of Rikers and the reinvigorating of the efforts to reduce the population and to reduce the length of stay. The successes of the past that Michael alluded to were the product of lots of hard work and advocacy, even with the state government. It is absolutely absurd that the population, while much lower than it used to be, is increasing when we have established, in law and in the purposes of public policy, that Rikers must be closed. Perhaps there is some way to intersect the receivership and some dictatorial approach to achieving the closing of Rikers.

Jan Ransom: Thank you, sir. I want to make sure we get everyone to weigh in on this as well. I'm going to turn to Hernandez. After the seventh person died this year, who also happened to be the fourth person to die in July alone, you tweeted: "We are witnessing a decades-in-the-making humanitarian catastrophe on Rikers Island." How and why are things so bad, and what, if anything, can be done about it? We've heard a lot of talk about receivership.

Hernandez Stroud: That's right, thank you, Jan. I think Michael, Liz and Stan really covered why things are so bad, so I'll just focus on the second part of the question: What can be done about it? There has been a lot of talk about receivership, and if you look at how previous receivers have approached staffing, for example, which seems to be a critical challenge for Rikers, one close example to my mind is the Alabama receivership, which happened between 1979 and 1983. That receivership was riddled with management problems, and those management problems, very similar to those here, affected every aspect of the prison operation. The New York Times, your publication, actually noted that for the better part of two decades, the management scheme just was not present. One of the questions asked in the chat was “do the receivers have the power to hire and fire and in contracts or renegotiate contracts?” The answer to that question is “yes.” It is a litigation process in terms of the union issues, but typically receivers are granted these very vast powers when it comes to staffing because there are constitutional rights on the line. In order to vindicate the constitutional interest, you have to give these receivers pretty wide-ranging power. What the Alabama receivership did was remove unqualified doctors and hire new qualified medical staff. Prior to the receivership, there were only about 27 medical professionals for the entire state prison system, and during the receivership period, that number of medical staff grew to about 130 employees. The receiver set new performance metrics, standards and benchmarks for the employee's required training, and all of this resulted in a marked improvement in operations, especially in cleanliness and in terms of the medical services.

When it comes to unwinding some of the dysfunction on Rikers, I think it's going to be important to look at what a receiver can do with respect to staffing. Because the receiver would be deployed to deal with these very serious constitutional issues, and because the power from which a receiver flows is very high and extreme in nature, the receiver is going to have to have some of these powers to deal with staffing. Fortunately, we have some examples where they've been able to successfully do that.

Jan Ransom: You spoke early on about the pros and cons a bit. Can you expand on that and what could a receiver look like in New York City jails? It may not mean that they have total control of the jail system, right?

Hernandez Stroud: That's right. I mean, I did mention earlier that a receivership could be a partial one. For example, the receivership in DC from 1995 to 2000 focused solely on the delivery of medical and mental care, which is similar to California's receivership, which focuses on medical care. You could end up with a situation where the judge is thinking about how the law not only requires it to be very sure that a receivership is necessary, but also to make sure that it doesn't go further than necessary, that it basically be tailored just to the problems. If the judge were to find that the problems could be in some way isolated, they could fashion the receivership around the remediation of those particular problems and leave the current governing scheme intact.

Liz raised a vital point earlier, which was that when the City failed to disclose certain information and the monitor and the court had to learn of conditions not from the jails but through the media, it was a huge blow to the confidence that the judge and the court have in the City's ability. So if, like Liz said, the City can't be trusted to be a partner in this work, it really does call into question whether the judge would devise a receivership where they have any amount of control and responsibility. The ways in which receivers have been most successful is in infrastructure, where receivers have been able to make numerous improvements because they can bypass procurement regulations that might stand in the way.

For example, it takes a very long time right now to deal with locks on the cells in the city jails. This sounds like a small thing, but there are rules in place that really preclude how quickly those sorts of improvements can be made. A receiver would have the authority, by court order, to deal with things like functional locks on cells, which really do go to the security and the stability of the facility. Receivers have been able to reduce overcrowding, so to the extent that a receiver might think about how this relates to closure, they might propose a population cap, which is not an easy thing to secure, but might well be necessary, especially if this receivership is thinking about how we get to humane jail system once Rikers closes.

Receivers have also been very powerful in dealing with union regulations that run counter to their work. The Cook County, Ill. jail case, which was a receivership, is a perfect example of that, where there were numerous disputes between the unions and the receiver. In most of those disputes, the receiver was able to prevail. For well over a century, it's been settled in law that receivers have expansive authorities to break, renegotiate and enter into new contracts so long as that sort of effort is tied to remediating the problem for which the receivership was created to begin with.

Jan Ransom: Thank you, Hernandez. Sara, this next question is for you. Can you tell us about the implementation of a federal receiver in California? What was happening in the prison system there that led to the need for a receiver?

Sara Norman: Sure. Thanks very much, Jan. A lot of the conditions in the California prisons in the early 2000s — which is when we first moved for receivership under our litigation, the Plata v. Newsom case — will sound familiar to people who have been following Rikers. For medical care, the system was drastically understaffed and under-resourced. The physical plant was entirely inadequate to serve the needs of the population, and much of what was there was crumbling. But perhaps most importantly, the leadership was unable to even recognize the scope of the problem, much less assess it, devise remedies and implement those remedies.

A lot of Judge Felton Henderson’s findings in the California case involved the toxic and utterly incapable leadership of the state and the prison system that led them to deny, evade and utterly fail in the face of all the problems that were presented. That resulted in the uncontested evidence before the judge that over 50 people a year in California prisons were dying of medical abuse and neglect. That's more than one person a week dying of the failure to identify and treat cancer, heart conditions, diabetes and all kinds of very profound medical concerns that come up every day in the prison and jail system.

Jan Ransom: What, if anything, can New York City learn from the experience in California?

Sara Norman: The essential point to keep in mind is that while a receiver is a drastic remedy, to be sure, it comes into play for a drastic situation like the one facing Rikers, when the people running the system are incapable of identifying and fixing the problems that they face. Another fairly drastic remedy that is in the judge’s toolkit is contempt. Contempt is a coercive sanction that comes into play when the people running the system are capable of fixing the problems but refuse to do so. It is a coercive remedy to get them to act. Receivership comes into play when they're absolutely incapable of doing that, when prior court orders have not worked and when the court finds that the capacity to change is not there.

One of the things to learn from the California system — which has resulted in significant improvements in infrastructure and staffing and all of the areas that Hernandez laid out as being potential pluses of a receivership — is that the receiver is not an instant fix. The receiver doesn't transform the system overnight. It's not like you wake up the morning after the appointment of a receiver and everything has changed. It's the injection of a new player on the scene with very significant powers, but not unlimited powers. The powers are bounded by what the federal court can order and what the federal court has ordered. For example, the receiver can't just appropriate funds to run a system. You still have to go through the legislative arm of government. Civics lessons still pertain to the situation.

But you have someone on the scene whose job it is to fix the tremendous harm that is occurring, that is wreaking havoc on the lives of people in the system, and in fact is killing many of them. That person's sole job and focus, with significant power at their back, is to fix those problems. That's not anyone else's job. I'm a plaintiff's attorney myself; the plaintiffs play an incredibly important role, but they don't have power to fix problems. The people running the system have a million things going on. I'm not a big fan of the prison industrial complex, but I do acknowledge that it takes a tremendous amount of time and energy and work just to keep the lights on in the system, much less fix the intractable problems.

The lesson to learn from California is that when you bring in a receiver who's not politically beholden to any of the constituencies, who has independence and power and a single sole focus, you inject new energy and new capabilities into the scene that can shift the balances. It's not an overnight fix, but it's sort of a thumb on the scale if you pick your receiver in favor of competence, efficiency and solutions.

Jan Ransom: Let's talk about that. When we spoke before, you mentioned that the receiver in California is a lawyer, if I'm remembering correctly.

Sara Norman: Mm-hmm.

Jan Ransom: So, it matters who is selected and there should be some thought behind that?

Sara Norman: Absolutely. The judge has a lot of options, as was discussed earlier. One way of looking at this is: Do you want a receiver who looks like the people that the receiver would be replacing or is working side by side with? Do you want a corrections official because they have the skills and the understanding of the systems? Do you want someone entirely outside of that system who is sort of a turnaround specialist, who knows how to identify problems and look for fixes? That's what we went for in California. In the end, the judge appointed Clark Kelso, who's a law professor who has come in on other situations in the state to fix intractable problems.

The receiver would be able to then hire the expertise that they need. We had an experience with a prior receiver in California who did not work well with the parties and the players. The important thing is that the receiver comes in with an understanding of the various players and the powers out there, and the will and the ability to maneuver and to move people in the direction that's needed to affect change.

Jan Ransom: I wanted to expand on something that was touched on a bit early on. In 2021, we had 16 people die; last year, 19 people; this year, so far, seven. Slashings and stabbings and uses of force are still high. I think a lot of people wonder how bad things have to get. We've talked about bad faith, but are there other factors that play into whether a judge decides to take the step towards receivership?

Sara Norman: In my experience, death is ... I don't know how to say this in a way that respects the gravity of the situation. Death is an extraordinary motivating factor for a judge. The city is killing people in the system and judges have broad, equitable powers to act and to fashion remedies to fit the situation. When death is on the table like it is now, when the system can't keep people alive, judges have a tendency to go deep because the consequences are dire and irreversible.

Jan Ransom: I don't know if anyone else wants to weigh in on that question.

All right, I'm going to the next one. Should the judge decide to appoint a receiver? What role can the Adams administration play in this? That question is for the group.

Michael Jacobson: I'll start. As Sara was saying, whoever the receiver is and whatever powers the judge grants them, they're not dictators. They have to live in a political environment where the mayor runs the city and has control over most of the services that are delivered in the city. The state government is implicated here, and certainly the city council and labor unions. Even with the extraordinary powers granted to a receiver, you need someone who can work with those political entities, who understands the value of what they can add. One of the things Hernandez said, which I think is incredibly important, is that once the receiver leaves, whenever that is, you want all levels of government to be committed to those reforms, not to wait breathlessly so they can end all those reforms.

That is sort of political work that any receiver is going to need to be capable of. I think a number of people said you need the right person. It obviously has to be someone who's an organizational expert, perhaps with correctional experience. But they have to be able to recognize that, especially in New York City, community members, advocacy groups and city government in all its forms play a role. They have a say, and the receiver has to find a way to work with them, corral them and convince them about the path forward.

Hernandez Stroud: If I had a magic wand, and if receivership was inevitable — which it may well be — if I'm in the government and I'm advising the mayor, I would say to embrace this as an opportunity. That's what happened in Alabama, actually, there was a change of administration. And in Fulton County, which actually had a receivership, but if anyone's been paying attention, the DOJ just either last week or the week before issued a warning that there's reason to believe there are more constitutional violations occurring. To the extent that the government can embrace receivership, sometimes governments will see receivership in greater judicial intervention as a way to unlock funding that might not be a good idea through the normal political process, but you can through the court somehow secure that funding that might otherwise be unavailable.

As Sara mentioned, it's not like the receiver will just get a blank check. They still have to go through the normal legislative channels, but that figure is taking into account what it takes to reduce or eliminate the sort of suffering that's occurring. It's not a budget that's made thinking about, "Well, is this a good political decision or bad political decision?" In that regard, if I'm advising the mayor, I would say this is actually the way that you get to do the best job that you can in terms of the city jails and not have to deal with some of the political considerations that you otherwise would have to deal with.

Jan Ransom: Thank you.

Sara Norman: Can I weigh in really quickly on that?

Jan Ransom: Yes, yes.

Sara Norman: Thank you. I will say, from the California perspective — this is me speculating now, I don't have an inside take on the governor's office — but when the pandemic hit and it was hitting prisons and jails horrendously hard, I could hear the sighs of relief from Sacramento that they had a receivership running medical care in the prisons, because they had the capability of bringing in immense expertise. It didn't always go well, but the receiver was able to work the political angle and bring in experts and do all kinds of things to try to address the pandemic in the California prisons that the state simply would not have done with their entrenched bureaucracy and their limited mindset. I would urge any administration to keep an open mind and think about the possibilities and capabilities that a receivership would open up for them.

Jan Ransom: Thank you, Sara. We're going to address one of the questions in the Q&A. If a non-party or not-for-profit or another local government entity wanted to raise a concern to the receiver, would it behoove them to motion to intervene in the matter or simply write to the court?

Sara Norman: I’ll just try to quickly parse some of the legalities here. First, you'd have to wait for a receiver to be appointed to reach out to the receiver. In that case, I would very much hope that the judge, in appointing the receiver, and the receiver, in establishing their administration, would set up ways in which they could hear from people with lived experience of incarceration and their communities, as well as providers and other service organizations. To be effective, a receiver will have to be able to hear from people in ways that judges actually can't. I don't think, from the facts that we're given, that anybody would technically be able to intervene, but I would hope and I would suggest that all parties urge the court to establish a receivership that's open to such commentary.

Michael Jacobson: Echoing what Sara said, there's no receiver that would be worth their salt who would not want to engage in that kind of discussion, broadly, with community members, advocacy organizations and people with lived experience. I mean, that receiver is going to have to get information from a variety of places and have a process where he or she hears from a huge number of folks. That question in some ways presupposes that you somehow are going to have to force your way in. But any good receiver will make that an incredibly high priority for how they move ahead.

Jan Ransom: Let's take one more question from the Q&A. "Were there lessons from decarceration efforts, made at the onset of the COVID pandemic, that might be useful to reducing the population, to align with the borough-based jails plan?" Then there's a second part of the question, "Can this be part of the charge under receivership?" Some of this has been discussed, but maybe we can expand on that.

Michael Jacobson: Well, I can start with the first part of the question. There were certainly lessons to be learned about what happened during the pandemic. The city had a process, and Liz was involved in that, for looking at who was incarcerated, and making decisions about who could be safely released. That was a huge success. The population did go down significantly. It did not lead to more crime, or less public safety. That's a process that our city, or any city, should be doing all the time.

The only reason anyone should be in jail pretrial is because they're either at a hugely high risk of not coming back to jail, or — at least in most other places, though not in New York — they're a huge threat to public safety. If you don't meet either of those two criteria, you shouldn't be in jail in the first place.

A constant look at that, and driving our population down that way, is incredibly important. I think we have, in some ways, all the evidence we need from what happened in the pandemic. It should absolutely keep happening now. As Stan mentioned, the city is going to have to double down on getting its population down, and that is one of the ways: to have these intensive looks at who is in, and making some decisions about who really needs to be in.

Sara Norman: To just quickly add to that, federal judges do not, anymore, have the power to order populations to be reduced. Therefore, it is on elected officials, and the people who elected them, to fight for policies just like Michael described. We incarcerate far too many people in this country. It damages the people who are incarcerated, their families, their communities and our entire society, in incalculable ways. We need to incarcerate fewer people. It really, as I said, is up to elected officials, and those of us who vote for them, to make sure that that happens.

Jan Ransom: Alright. Well thank you, everyone on panel one, for your insight and responses. Going to hand it all over to Errol Louis. Thank you.