Members of the Board of Correction and an attorney with the Legal Aid Society tore into the Department of Correction’s response to a Federal monitor’s broadly disapproving report on use-of-force incidents in city jails.
They further suggested that DOC leadership disrespected the report’s fact-finding by neglecting to engage with the board, instead delegating one of its Deputy General Counsels and an Assistant Commissioner to answer questions at the board’s Nov. 12 meeting. The head of the Correction Officers union, however, said the monitor's report was flawed because it failed to consider the degree to which "hyper-aggressive inmates" spurred the rise in use-of-force cases.
‘A 5-Alarm Fire’
During public-comment time toward the close of the meeting, Kayla Simpson, a staff attorney with the Prisoners' Rights Project at The Legal Aid Society, said the DOC counsel’s response to the report was “dismissive” and “minimizing."
“The culture described in this report is a five-alarm fire,” she said. “This response...is not a five-alarm response. None of us should be OK with this.”
The report, the eighth by the Federal monitor installed as part of a consent decree to address one of the nation’s most persistently violent jail systems, documented both a rise in the raw number of use-of-force occurrences and their frequency, with the rate of incidents now nearly double what it was three years ago, shortly after the monitor was put in place. The jail population has dropped by 20 percent since then.
Except for the six-month span ending in June 2017, the rate of incidents has increased in each period documented by the monitor and his team. The rate, which is calculated using a facility’s average daily population, now stands at 7.41. It was 3.75 when the consent decree went into effect in 2015.
The report, released in late October, paints a sobering picture of DOC management and line staff. The monitoring team noted that officers “are often hyper-confrontational and respond to incidents in a manner that is hasty, hurried, thoughtless, reckless, careless, or in disregard of consequences.”
At other times, the report noted, staff “under-react to incidents, demonstrate poor situational awareness, and/or poor skills in developing constructive, functional relationships with inmates.”
Ms. Simpson called the report “302 pages of operational failure.”
While she said she understood the board’s reluctance to micromanage the DOC’s day-to-day operations, she said the report “counsels the most hands-on approach possible,” including with regard to the board’s rule-making and reporting requirements.
She alluded to the Federal monitor’s finding that the DOC “has not shown itself capable of devising and implementing effective strategies to institutionalize the use of force reforms required by the consent judgment.”
‘Change Takes Time’
During her discussion earlier in the meeting with the board and in answer to members’ questions, Lisa Richardson, a DOC Deputy General Counsel, said the department “has not shied away” from instituting initiatives to achieve compliance with the monitor’s provisions.
She noted, as had the DOC previously, that the department is in 85-percent overall compliance with the consent decree’s elements. Those include new training regimens, disciplinary guidelines, timely completion of use-of-force reports as well as documentation of those incidents, the installation of cameras throughout jail facilities, and improved staff recruitment and selection processes.
“The safety and well-being of people who work and live in our facilities is our top priority,” she said, adding that the monitor’s report “makes clear there are no easy solutions.”
Ms. Richardson acknowledged that much needed to be done to achieve significant reform. She also alluded to the monitor’s observation that “full reform and culture change takes time.”
She added that investigations into use-of-force incidents were “significantly impacted” by decree provisions such that it exponentially increased investigators’ workload.
Ms. Richardson said the DOC’s Nunez team was working with the Federal monitor to streamline the consent judgment’s requirements so that use-of-force cases could be closed quicker, and that discipline, when warranted and appropriate, could be fast-tracked.
Need a Better Response
But Ms. Simpson said Ms. Richardson’s reasoning that the consent judgment’s demanding directives are the cause of investigative backlogs was “infuriating” since the consent decree is one the DOC itself negotiated, agreed to and “a court ordered them to follow.”
The report, she said, made it clear that the reason the DOC was failing to implement needed change was not because of institutional obstacles, but because “there is a toxicity present in that agency.”
There is “no acknowledgement, even from the civilian leadership, [of] the crisis that is facing this agency," she said.
Board Member Stanley Richards was also not assuaged by Ms. Richardson’s explications or by Assistant Commissioner Marshall Volk’s. “I was wondering if we were reading different reports,” he said after they spoke. “This report was not good, and your response was not consistent with what they said.”
Asserting that just a fraction of the DOC’s 10,000 officers were “bad people,” Mr. Richards said the department nevertheless needed to better respond to “the few who may do some things that are bad and inappropriate, to hold them accountable so that the other officers who do good work every day don’t get blanketed in a report like this.”
Robert Cohen, another board member, said he wanted the BOC to reconsider the report, and would ask for a presentation from DOC officials on how it was responding to its “very, very, very, very serious concerns.” He said he was hopeful of not getting “a kind of Alice in Wonderland kind of response saying that everything is 85 percent great and ‘we’re really making a lot of progress,’ because that is not what the report said.”
The claim that the DOC was 85 percent in compliance with the decree’s provisions also drew derision from Ms. Simpson, the Legal Aid attorney. The report outlined key elements of the decree that remained unaddressed, including the implementation of a use-of-force policy; timely and quality investigation; meaningful and adequate discipline; and a reduction in violence among young inmates.
Jacqueline Sherman, the board’s interim Chairwoman, said it would once again take up the report in either January or February. “And we’ll expect to have a more substantive conversation regarding the challenges the department is facing,” she said.
Following the hearing, the DOC's Deputy Commissioner of Public Information, Peter Thorne, said the agency would look forward to further discussing the report with the board.
"High ranking officials —our Assistant Commissioner who heads the Nunez Compliance Unit and our deputy general counsel—provided testimony and answered all the questions the Board had regarding the latest Nunez Monitor’s report,” he said. “We are proud of the hard work that these talented and dedicated civil servants are doing, and they are the experts in this area. As always, we would be happy to continue engaging with the Board about the Nunez report if they have further questions.”
COBA: ‘We Get It Right’
The president of the Correction Officers Benevolent Association, Elias Husamudeen, who was at the meeting, dismissed the board’s criticism, saying that it was based on a report that was willfully selective and, in the process, demonized Correction Officers.
“They’re all about the big, bad boogieman, the man who can’t get it right,” he said of the criticisms. “Nothing could be further from the truth. We get it right...The reality is they are trying to undervalue what we do and marginalize who we are.”
Mr. Husamudeen said he had read only parts of the report, adding that this eighth iteration was likely similar to the others.
He nonetheless said it failed to note the outsize role played by hyper-aggressive inmates. “He has nothing to say about people who drive the violence in the jails,” Mr. Husamudeen said of the monitor.
He said the majority of use-of-force incidents were precipitated by inmate-on-inmate fights and stabbings. The use-of-force increases, he said, were attributable to the lack of consequences for inmates who engage in violence with each other and with Correction Officers. “The reality is you send us violence,” he said.
Aside from broadly suggesting that the DOC could take steps to lessen violence inside its facilities by “managing inmates,” Mr. Husamudeen rejected the notion that his members had failed to buy into reform initiatives.
“You don’t have to get me to buy into anything,” he said. “I’m doing my job; we do that every day.”
The monitor’s report articulated one “essential question,” namely “why had the various reforms designed to improve the detection and—and ultimately prevention of—[Use-of-Force]-related misconduct not been effective?”
Julia Davis, the director of youth justice and child welfare at the Children’s Defense Fund, said the onus was on the board to get that question answered.
“This is an absolute failure, and you all need to probe why,” she said to the board members. The board has a responsibility given that its hearings are essentially the sole opportunity for the public to have a dialogue with the DOC.
“You need to think about the failures of the policies to date,” Ms. Davis said. “You all have a moment now to intervene in this in a very hands-on way,” both to probe the reasons for those failures and to then use those answers to determine rule-making. She urged the board to next take up the issues raised in the report by asking questions of correction officers, rather than by giving DOC leadership a platform she suggested the department had not merited.