On Tuesday, federal Judge Laura Taylor Swain held a status conference on the ongoing litigation in Nunez v. Department of Correction, the federal case involving unconstitutional conditions at the Rikers Island jail complex.
Coming together were multiple members of the federal monitoring team led by longtime corrections expert Steve Martin, as well as lawyers for the plaintiffs (represented by the Legal Aid Society), the Manhattan U.S. attorney, and the city itself. It was the first such hearing in months after much back and forth, so anticipation was high.
Yet what most struck me about the hearing wasn’t really what the parties talked about but what they didn’t. The hearing only very tangentially touched on the actual people detained at the island complex, the violence that encompasses them, the failure to treat their physical and mental health conditions, the physical decay of the facilities, or any of the other emergency-level issues that these and other proceedings are ostensibly about. Instead, the lawyers spent the better part of an hour and a half discussing first the appropriate evidentiary designation of Martin’s perspectives on the motions for contempt and receivership, and then the appropriate fact-finding and briefing schedule ahead of the September oral arguments on the motions.
In the first case, the disagreement concerned whether Martin and the monitoring team can be considered experts on specific questions around contempt and receivership — the method to appoint a federal administrator for the Department of Correction, who would have direct decision-making and executive authority — because the city contends these are beyond their narrow expertise on “correctional systems and correctional best practices” and start getting into departmental politics. Therefore, city lawyers argued, the court should not consider the monitoring teams’ opinions specifically on these questions to be expert opinions. Ultimately, Swain put forward the idea of considering Martin’s perspectives on these motions as material, but not necessarily expert, opinions.
If this all seems like incredibly procedural and almost unintelligible hair-splitting, congrats on not having had your brain irrevocably brined by law school, I guess. This is meaningless to any given layman, even if it has some substantive legal impact. The second question is a little more practical, involving how much time plaintiffs’ lawyers need to consider the city’s submissions of evidence and resolve evidentiary disputes ahead of having to be prepared for arguments. As one lawyer put it, the court risks getting itself into a catch-22 of having endless disputes over the facts, which can stretch on so long that there are new facts to then fight about. This is a bit more understandable, but still, for anyone who might have tuned in expecting concrete updates on the situation at Rikers and the parties’ plans to make things better, this is all pretty arcane.
Look, I get it. This is a federal court. These are complex matters with a lot of real import for a lot of people’s lives, and the wrangling over receivership specifically involves some delicate considerations, not least of which is taking a department out of the control of a city’s elected government and putting it in the hands of a single court-appointed manager. I don’t have to tell regular readers that I have some sharp opinions on the matter of federal judges, and the Supreme Court in particular, deciding to appoint themselves our functional unelected overseers over the past few years. This is something we have to be careful about, and there’s a reason no one is making rash decisions. But come on.
We’ve been talking about receivership for years. The Manhattan U.S. attorney Damian Williams finally announced support for a receiver a year ago. The Board of Correction, too. They were followed by New York State Attorney General Letitia James, the state’s bar association, and many others, all last year. All the back and forth about the evidentiary record is made even more frustrating by the fact that, yes, the circumstances on the ground are updated all the time, but the basic contours of the problem have barely shifted since the monitor was appointed 9 years ago, or even really from the pre-monitor days.
The department cannot ensure proper supervision or accountability for its staff, is in thrall to the Correction Officers’ Benevolent Association (I won’t miss an opportunity to remind everyone that previous COBA president Norman Seabrook was convicted of comically ham-fisted federal corruption charges), hasn’t developed proper systems for tracking detainee health, and so on. The severity ebbs and flows but it’s the same issues, over and over. By most accounts, prior DOC commissioner Louis Molina understood his job as protecting the administration and trying to sweep issues under the rug (for this loyal soldiering, he got a cushy and pretty much undefined job at City Hall before a head-scratching appointment to head the crucial Department of Citywide Administrative Services).
Current commissioner Lynelle Maginley-Liddie seems to be doing much better on at least the transparency front, and was commended by the monitoring team for opening up lines of communication and striving to address some of the issues identified. But the simple fact is this doesn’t seem like an issue that she or any commissioner from within the DOC, and constrained by the particulars of city government, can adequately address, especially not if we accept the premise that this is an emergency-level issue. How much leeway would we give the authorities to address the issues if we were talking about some spike in violent crime or a collapse of public transit? Probably not much.
So now we’re scheduled for oral arguments on September 25, after which it could be months until Swain issues a final decision. As the judge made clear, there are a lot of unanswered questions not just about whether a receiver should be appointed, but what such an arrangement would even look like — what powers would the receiver have, specifically? What mandate? How would they interface with the department’s existing bureaucracy and the city government? What are the metrics for success? How long might they be expected to be at the helm?
These are certainly questions worth answering, but we’re years into these discussions. What are we even doing here? Next year will mark a decade since the monitor’s appointment, during which time some 120 people have died in or shortly after release from custody, many not actively reported by the department. Given that trend, we can expect some more deaths by the time that the judge makes a determination on the receivership question.
Now, do I think a receiver could come in and fix the problems in one fell swoop, preventing harm and saving lives with ease? No, and anyone who might argue that misunderstands the point and role of the receiver. But what we’ve been doing for a long time clearly isn’t working, and whether you like it or not, it reflects badly on all of us New Yorkers.
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