Plaintiffs Want NYC Jails Handed Over To Federal Receiver

By Marco Poggio | November 20, 2023, 5:01 PM EST ·

Plaintiffs in a decadelong class action challenging brutality by staff at New York City jails have asked a federal judge to appoint a federal receiver to take the helm of the troubled city jail system following record violence at its facilities, attorneys confirmed on Monday.

In a motion filed Friday evening in federal court in Manhattan, attorneys for the plaintiffs laid out a plan to empower an independent decision maker to take over the facilities run by the New York City Department of Correction. The aim is to comply with a 2015 consent decree that sought to stem the violence, but which the city has struggled to follow.

Under the proposal, the receiver would assume near-total control of the city's jail system.

According to a proposed order, the receiver would be vested with all the "all powers necessary" to enforce the decree. That includes full authority to control and supervise the DOC's day-to-day operations and the power to enact or change DOC policies, create or modify positions and negotiate and revise contracts, including those with labor unions. The receiver would answer only to the court.

The city would retain its own Corrections Department commissioner, but that person would only serve in an assisting role throughout the receivership, which has no set ending date.

The plaintiffs said the appointment of a receiver is necessary because the risk of harm at city jails is even higher today than it was in 2015, when the court entered the decree to improve conditions inside the city's jails.

"Thousands of people incarcerated in DOC facilities have suffered extreme and intolerable levels of violence and remain in imminent risk of further harm on a daily basis," the Legal Aid Society of New York, which represents the plaintiffs alongside civil rights boutique firm Emery Celli Brinckerhoff & Abady LLP, said in a statement Monday.

If she signs off on the proposal, U.S. District Judge Laura Taylor Swain would then find a person to appoint as a receiver. Should the parties fail to agree on a candidate, they would each have one month to submit a nomination for the judge to choose from.

Katherine Haas, a staff attorney at the Legal Aid Society's Prisoners' Rights Project, told Law360 that violence statistics indicate that the city has lost control of its jails, and that a power shift is necessary.

"We have to change something and this is the option that's left. This is what we have to do, because the city has failed for eight years," she said. "We've allowed them to try everything they can, and it hasn't worked."

Twenty-eight people have died in DOC custody in 2022 and 2023 alone, more than in over a decade, according to a brief filed alongside the motion.

On Oct. 5, Manish Kunwar, 27, was found dead at the Rikers Island jail complex, the city's largest jail, which is notorious for being rife with violence and has been the focus of yearlong campaigns by advocates who seek to have it closed down. Kunwar was the ninth person to die in a city jail this year.

Plaintiffs said in the brief that every indicator of physical harm — use of force, stabbings and slashings, fights, serious injuries, in-custody deaths — is "demonstrably worse" than in 2016, which marked one year into the consent decree's implementation.

The current average monthly rate of stabbings and slashings is almost 250% higher than 2016. Fights occur more frequently.

The number of use-of-force incidents is projected to reach 6,500 at the end of the year — 2,000 more than reported in 2016 — if the current rate persists. The overall use-of-force rate is more than twice as high, and the percentage of use-of-force incidents resulting in serious injuries to incarcerated people and staff has doubled since then, according to the brief.

Nicholas Paolucci, a spokesman for the city's Law Department, rebuffed the idea of a receivership in an emailed statement on Monday.

"This administration has made progress in many areas to address the deeply rooted problems at Rikers that have existed for generations," Paolucci said. "We are committed to building upon that work, and we do not believe a receivership is the solution to fixing the city's jail system."

But Debbie Greenberger, a partner at Emery Celli, said the city has run out of time.

"The ongoing violence and harm calls for extraordinary measures, like a receiver, because the status quo violates our clients' constitutional rights every day," she said.

In 2012, the Legal Aid Society and attorneys with Emery Celli filed a lawsuit on behalf of 12 people detained in city jails, including name plaintiff Ralph Nunez, seeking to end what they described as a pattern of unnecessary and excessive force by guards against them. The suit, which became a class action in January 2013, sought damages but also a declaration by the court that the correctional officers had violated the inmates' rights under the U.S. Constitution and state law.

Joining the suit on behalf of the plaintiffs in December 2014, the U.S. government asked the court to intervene to force a change in DOC practices, saying they violated the constitutional rights of people ages 16 to 18 held in the jails.

The litigation reached a milestone in October 2015, when Judge Taylor Swain entered a consent decree ordering the city to take specific actions to undo a pattern of violence by staff against incarcerated people and to implement new policies to reduce violence in the jails overall. Following the decree, the court appointed a federal monitor to oversee the reforms.

The monitor, which unlike the proposed receiver has no sway over DOC policies and can only make recommendations, has since issued 50 reports looking at whether and how the city has complied with the consent judgment. For the most part, those reports found that conditions at the jails not only haven't improved — they have gotten worse.

A special report published in July found the city's jail system in a status of disarray and "patently unsafe." The numbers of stabbings, slashings, fights and assaults of staff were found to be exceedingly high, and so were incidents involving excessive use of force by guards.

And in a report issued in October, the monitor said correctional officers have continued to use prohibited force techniques such as head strikes, choke holds, kicks, and body slams "at an extremely high rate."

The report found that there were 587 incidents involving head strikes between January 2022 and May 2023 and that dozens of staff were suspended for use-of-force misconduct in the first five months of this year.

Under the receivership proposal, the monitor would continue to perform its functions, including producing its periodic reports on the efforts made to comply with the decree. The monitor and the receiver would work independently of each other and wouldn't be answerable to each other.

The Correction Officers' Benevolent Association, the union representing the city's correctional line officers, declined to comment on Monday.

The case is Nunez et al. v. The City of New York et al., case number 11-cv-05845, in the U.S. District Court for the Southern District of New York.

--Editing by Rich Mills.

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