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CLEAR THE BOTTLENECK: The Department of Correction must take steps to expedite a backlogged caseload of nearly 2,000 use-of-force incidents substantiated by DOC investigators, a Federal Judge has ordered. Some of the cases go back at least three years. Another roughly 2,000 cases were potentially lost to the statute of limitations.

A Federal Judge has ordered city jail officials to process a sizable backlog of use-of-force-related misconduct cases.

Finding that the Department of Correction has “repeatedly” failed to show that it was meaningfully addressing incidents of violence by officers inside city lockups, Judge Laura Taylor Swain Nov. 22 directed the agency to put together a list within 30 days of at least 400 cases for “expeditious resolution.”

She instructed the department’s Trials Division to work with the Federal Monitor keeping tabs on Correction's violence-prevention efforts to come up with a basis for prioritizing cases. 

Nearly 2,000 Cases

The number of cases where "objective evidence of use-of-force misconduct has been substantiated" by DOC investigators is approaching 2,000, the Monitor wrote Judge Swain in late September. Her order compels the agency to “impose appropriate and meaningful discipline” in connection with those 400 backlogged cases by April 30.  

Of those cases, almost 600 date back more than three years, according to the Monitor, Steve Martin, and his team. No discipline has been imposed in any of those. (The Monitor has previously found that an investigations bottleneck resulted in about 2,000 cases being unaddressed because of the statute of limitations.)

A DOC spokesperson, though, said the department has been diligent in addressing the disciplinary backlog. 

“We remain committed to ensuring accountability in our agency. As the monitor has previously noted, we were able to clear a large backlog of investigations of disciplinary cases related to Use of Force, and these pending cases, which will also be cleared, are the result,” the spokesperson said in an email. 

Blind to Realities?

The president of the Correction Officers’ Benevolent Association, Benny Boscio Jr., who has been critical of the department’s discipline process, said the Judge’s order failed to account for what often leads to use-force-incidents. 

“Correction Officers are the only workforce in the city who can get assaulted and suspended for the very same incident simply for doing our jobs. Instead of ordering the Department to ramp up its disciplinary crusade against our officers, it would have been more productive for the Judge and the Federal Monitor to investigate the violent incidents that drive use of force incidents in the first place,” he said in a statement. 

For instance, Mr. Boscio said that a female officer’s defending herself against a sexual assault is considered a use of force, as is an officer’s use of his hands to break up a fight among inmates. 

Of 6,690 use-of-force incidents cited by the union, 4,950 were precipitated by inmate-on-inmate fights, while another 901 involved assaults on staff, he said. 

It's not clear, however, how many of the incidents cited by the union ultimately led to UOF charges.

'Trials Take Years'

The DOC noted that the city’s Office of Administrative Trials and Hearings had recently expanded its trials division by appointing six Administrative Law Judges, in part to address Nunez-related cases growing out of a consent decree reached with the U.S. Attorney's Office in Manhattan. The hiring of additional ALJs, with a specific focus on use-of-force violations, was among recommendations made by the Monitor earlier this year. 

“The process for holding Staff accountable is complicated, convoluted, and involves various bureaucratic requirements that have all resulted in systemic dysfunction and long delays,” Mr. Martin and his team wrote Judge Swain in September. 

While most cases are settled at OATH, others require a trial, the Monitor wrote at the time, but “the current process for convening a trial takes years” following an incident. Just 19 trials regarding use-of-force matters took place between September 2020 and June 2021. Those proceedings dealt with UOF incidents that took place at least two years before. 

Judge Swain directed the DOC to ensure that at least 150 pre-trial conferences tied to discipline cases being adjudicated by OATH take place each month. “If there continue to be delays in conferencing cases despite this calendaring practice, OATH will assign additional resources to hear these cases,” she wrote.

Orders Boost in Trial Staff 

She also instructed that DOC “substantially increase” staff within the department’s Trials Division “to ensure that disciplinary cases are prosecuted expeditiously and that the Department can meet the obligations of this Order.” By the end of the year, the division must have at least eight more attorneys handling cases, she wrote.  

Mary Lynne Werlwas, Director of the Prisoners’ Rights Project at the Legal Aid Society, which represented the plaintiffs in the case that led to the consent decree and the appointment of the Federal Monitor in 2015, said the Judge’s directives were “necessary steps” if the city and the DOC are to meaningfully address and comply with the provisions of the decree. 

“The culture of impunity that permeates the Department of Correction will never change until misconduct is met with timely and appropriate discipline,” she said. “These are necessary steps toward addressing years-long, egregious non-compliance by the City, and we will continue to vigilantly enforce the relief to which our clients are entitled.”


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