Special to the Vanguard
New York, NY – On Friday, the New York Civil Liberties Union submitted an amicus brief in support of federal receivership at Rikers Island.
In the brief, the NYCLU argues that receivership is consistent with the ultimate goal of permanently closing Rikers Island. The brief argues further that following decades of secrecy from City officials about the constitutional violations at the facility, the court must ensure that the receiver is transparent and responsive to the public regarding its activities and data collection.
“Rikers Island is dangerous, inhumane, and a constitutional nightmare for those in its custody, the vast majority of whom are Black and Brown New Yorkers. Mayor Adams and his predecessors have shown that they are unwilling and unable to address this abhorrent humanitarian crisis. A federal receiver must step in and take immediate action,” said Molly Biklen, Deputy Legal Director at the New York Civil Liberties Union.
They added, “The court must ensure that the receiver is transparent, accountable to the public, and able to stop the alarming secrecy campaign that the Adams administration and the Department of Corrections have waged. Decarceration and permanent closure can and must remain the ultimate goal, and the receiver is a necessary step to bring Rikers’ 
deadly conditions to an end.”
From the brief…
Given the current conditions at Rikers, the appointment of an independent receiver is necessary for the safety of people in custody there. Appointment of a receiver now is particularly appropriate given recent and aggressive efforts by DOC to conceal information from this Court, from other oversight bodies, and from the public. In light of this history and the intense public interest in Rikers Island, the Court should assure that a central feature of the receivership is a commitment to full transparency about all aspects of Rikers Island.
The Department of Correction Recently Has Engaged in a Concerted Campaign to Conceal the Extent of Constitutional Violations at Rikers Island.
As Rikers Island has become ever more dangerous over the last several years, DOC has resorted to an alarming campaign of attempting to conceal the constitutional violations permeating its jails and the deathly toll those violations are taking on those held there. The agency fails to collect useful data, withholds information the Monitor requests, and obscures crucial information from journalists and the watchdogs that inform the public. The results of this accelerating secrecy campaign are deadly and provide further support for an independent receiver.
Currently, DOC underestimates harm to people in custody at Rikers with data collection methods that fail at every step. To begin with, DOC staff have discretion over the disclosure of serious violent incidents, which they often do not report. See, e.g., Special Report at 4-9, May 26, 2023, ECF No. 533 [hereinafter May 26 Special Report] (detailing five unreported incidents leading to the death or serious physical injury of people in custody that took place in less than one month). When reports occur, DOC frequently incorrectly or incomprehensibly categorizes the violence, making it difficult to track progress. See Status Report at 29-32, Nov. 8, 2023, ECF No. 595 [hereinafter Nov. 8 Report]. As a result of these inconsistent reporting practices, the Monitor has disclaimed any confidence in the accuracy of DOC’s data regarding stabbings and slashings. Id. at 8. Sometimes, DOC falsifies statistics entirely. See Legal Aid Society Letter at 5, Nov. 14, 2022, ECF No. 477 (detailing how DOC “retroactively changed a person’s ‘In-Custody Start Time’” in at least “16 instances” over several days to create the appearance of compliance with a 24-hour intake processing limit) (internal citations omitted). Undetected, these statistical “adjustments” would allow unconstitutional conditions to go unscrutinized. See Second Status Report on DOC’s Action Plan by the Nunez Independent Monitor at 84-87 Oct. 28, 2022, ECF No. 472 (echoing these concerns and adding that “the data currently captured by the system [is] unreliable and unusable.”).
Further, because “the Department’s requirements for incident reporting are embedded in at least 8 different policies,” resulting databases are piecemeal and do not provide a complete picture of violence or discipline. Nov. 8 Report at 30-31. Video footage and photography cannot fill in the gaps because staff often fail to turn on body cameras and photograph the wrong people after an incident. Id. at 84. The resulting data on use of force, stabbings and slashings, sexual misconduct, causes of hospitalizations, and deaths is unreliable and underestimates harm to those in custody. May 26 Special Report at 12 (detailing harm from 2019 and 2021; Nov. 8 Report at 33-34, 58. And many of the most troubling incidents are not reported timely, if at all. See Nov. 8 Report at 36; May 26 Special Report at 3-10.
As this Court is well aware, DOC has gone to increasing lengths to withhold accurate data from the Monitor in this case. Status Report at 1, Nov. 30, 2023, ECF No. 616. DOC’s responses to inquiries from the Monitor about data collection have been vague and unresponsive or have provided incomplete data on injuries and hospitalizations. May 26 Special Report at 3-10; Nov. 8 Report at 32, 35, 43. In a willful attempt to hide these reports, DOC has claimed falsely that neither the Consent Decree nor the Action Plan required DOC to report deaths of people in their custody to the Monitor. May 26 Special Report at 5-6; Second Remedial Order, ¶ 1(i)(b), ECF No. 398; Action Plan, § D, ¶ 2(g), §G, ¶ 4 (b)(iv)(1), ECF No. 465. As a policy DOC now makes “ongoing efforts to interfere, obfuscate and otherwise impede” transparency. Nov. 8 Report at 39. The Monitoring team “receives continuing reports that staff are afraid to speak or be candid with the Monitor for fear of reprisal by the Commissioner and possibly other Department leadership.” Status Report at 12, Nov. 30, 2023, ECF No. 616. Last month, senior leadership threatened to sue the Monitor. Id. at 16.
Beyond the Monitor, DOC has also sought to limit information to the Board of Correction, which is responsible for the independent oversight of the Rikers Island correctional facilities. On January 9, 2023, DOC blocked the Board’s previously broad remote access to surveillance footage from inside the jails that it uses to fulfil its oversight duties and investigate deaths of individuals in custody. DOC successfully obfuscated investigations for nine months, backtracking only recently after the Board sued. The Board of Correction’s investigations are confidential, and DOC has provided no credible rationale for its efforts to stymie their work by sharply limiting access to video from the jails. DOC has also sought to keep information from the public, most notably announcing that it has ceased the practice of notifying journalists about deaths in custody. No credible justification supports this policy change. Further, the reviews of deaths in city jails by Correctional Health Services, the agency responsible for medical care at Rikers, are not public and any proposed corrective actions are not made transparent. Indeed, these reviews “are so tightly kept under wraps that Correctional Health Services does not even publicly acknowledge who receives them.” Public findings by the Board of Correction and the state Commission on Correction are no substitute, as the Commission on Correction’s reviews typically take years to complete its review.
