OFFICER USE OF FORCE AND THE FAILURE OF OVERSIGHT OF NEW YORK CITY JAILS.

• Author: Ferentz, Jennifer

Introduction 1394 I. Excessive Use of Force as an Intractable Problem 1397 A. Jails and a History of Violence 1397 B. Judicial Intervention and Federal Monitorship 1402 C. Nunez v. City of New York and the Nunez Federal Monitorship 1405 II. Mapping the New York City Jail System 1407 A. The Department of Correction 1408 B. New York City Government Oversight Agencies and Officials 1411 i. Board of Correction 1411 ii. Office of the Mayor 1413 iii. New York City Council 1415 iv. Office of Administrative Trials and Hearings.... 1417 v. Department of Investigation 1418 vi. Bronx District Attorney's Office 1419 C. New York State Oversight 1420 i. The State Commission of Correction 1420 III. Oversight's Abdication of Responsibility 1422 A. "The System Is Overwhelmed" 1422 B. No Minimum Standards 1424 C. Oversight's Silence on the Use of Force 1426 i. The Mayor and the Mayor's Office of Criminal Justice 1426 ii. New York City Council 1428 iii. Department of Investigation and District Attorneys 1429 D. New York State Would Rather Play Politics 1429 E. Yet Another Oversight Hurdle: Office of Administrative Trials and Hearings' Precedent 1431 IV. Steps to Strengthen Oversight 1431 A. Board of Correction: Promulgate Minimum Standards, Make Funding Independent, Diversify Composition, and Broaden Enforcement Authority 1432 B. Oversight Actors Should Be Connected 1434 C. Move All Use of Force Investigations to Department of Investigation and Address Problematic Office of Administrative Trials and Hearings' Precedent 1435 Conclusion 1436 INTRODUCTION

Violence runs through the entirety of the U.S. criminal justice system, and it is a part of daily life in prisons and jails. Two underlying reasons for this violence are that the modern U.S. carceral state is characterized by a "tough on crime" approach that prioritizes punishment over rehabilitation, (1) and that it is built on the legacy of slavery and racism. (2) In prisons and jails, (3) it is an accepted fact that correction officers will use some measure of physical force to control incarcerated people. (4) Thus jurisdictions have different rules or policies that outline the bounds of what, when, and how much force is appropriate to use in various circumstances. (5) However, our country is currently reckoning with the very idea of uniformed force; (6) collectively, more people are beginning to understand that this force is synonymous with violence (7) and that this violence is racialized. (8)

U.S. prisons and jails are a "massive social institution plagued by problems," and these problems are exacerbated "by the vacuum that exists when it comes to meaningful oversight and public accountability." (9) And this vacuum exists here in New York City. This Note asks the reader to consider: what is the point of government oversight if one of the most pressing issues incarcerated people face today--the intractable problem of unnecessary and excessive officer use of force--goes ignored by such oversight? This Note examines the larger structure of oversight of New York City jails (10) to try to understand how the use of force rate continues to increase despite ongoing federal Monitorship, and the Department of Correction's alleged commitment to change. Ultimately, this Note argues the actors responsible for changing the rules governing New York City jails and the practices carried out within them are abdicating that responsibility when it comes to this violence.

Part I traces the history of brutality in New York City jails and focuses on the work of prisoners' rights advocates and judicial intervention on this issue, which culminated in the lawsuit Nunez v. City of New York. (11) Part II then seeks to identify and document the institutional actors' legal authority that play a role in the functioning and oversight of New York City jails, focusing on how these entities can impact excessive use of force. Part III examines both the current state of correction officer use of force in City jails and oversight actors' reaction to this issue within the past few years. This Part demonstrates both how the Department of Correction (DOC) is ill-equipped to change, and how oversight bodies with legal authority to make a difference have remained mostly silent. Finally, Part IV recommends several policy changes to strengthen oversight over New York City jails, and tackle the central and ubiquitous problem of excessive use of force.

1. EXCESSIVE USE OF FORCE AS AN INTRACTABLE PROBLEM

   Section LA traces the entrenched history of violence in New York City jails, with a particular emphasis on Rikers Island. Section LB then outlines the efforts of prisoners' rights advocates to ensure the safety and well-being of incarcerated people through judicial intervention and Monitorship. Finally, Section I.C focuses on the lawsuit Nunez v. City of New York, (12) the ongoing reports the Nunez Federal Monitor publishes, and the current status of New York City jails, including the continued prevalence of correction officers' unnecessary and excessive use of force.

   1. Jails and a History of Violence

      New York City jails, in particular Rikers Island, have always been notorious for violence. (13) Although gang-related conflict in jail is prevalent, (14) brutality carried out by correction officers in City jails is also an intrinsic part of this violence. (15) Correction officers have dragged an inmate by the neck, handcuffed, and punched the inmate in the face; (16) in a gang of three, kicked and punched a man in the stomach; (17) beaten inmates after forcing them to strip naked; (18) forced inmates to eat cigarettes and flushed their heads in toilets; (19) kept a man in a cell with no running water for two days, and then hit him in the face when he asked for water; (20) and pepper-sprayed someone as he lay face down in the shower after another officer hit him in the back of the head so hard he lost consciousness. (21) Formerly-incarcerated people have also spoken about the horrors they experienced in these jails beyond this brutality, which include no access to cold water or cold showers on scorching hot summer days, (22) mice and cockroach infestations in cells, and a lack of access to necessary and life-saving medication. (23) Since facilities were first built on Rikers Island, DOC's actions have prompted lawsuits that allege organizational indifference to these problems and overwhelming mismanagement. (24)

      In 1884, New York City bought Rikers Island from the Riker family, with plans to expand its size and build a prison facility to relieve the overcrowding and squalid conditions present in the City's two operating jails. (25) Opened in the 1930s, the Rikers Island Penitentiary was accessible only by ferry, and the people incarcerated there lived next to garbage dumped by the Department of Sanitation, (26) despite the City's intention for it to be on the cutting edge of penitentiary design. (27) By 1939, a Bronx court deemed it to be "nearly unlivable." (28) Regardless, the City's use of Rikers Island kept growing, leveling out the garbage piles, (29) and building new facilities in the 1960s and 1970s. (30) In 1974, in response to a class action brought by the Legal Aid Society, a court ordered the temporary shut-down of a jail near City Hall in Manhattan, known colloquially as the Tombs, for its poor living conditions; (31) after this, DOC started to house increasingly more detainees on Rikers Island. (32)

      The prevalence of drug use and an increased reliance on policing in the 1980s meant that Rikers Island housed an ever-ballooning population of detainees; under Mayor Rudolph Giuliani, the Rikers population skyrocketed in the early 1990s. (33) For example, in 1991, around 22,000 people were held in DOC custody. (34) To handle the overflow, DOC set up tents and navy barges to house people (35)--one of which, nicknamed the Roat, still operates today. (36) Although the New York City jail population reached its peak around 30 years ago and crime rates have steadily fallen since then, City jail facilities' problematic conditions, prevalence of violence, and correction staff's persistent corruption have never gone away. (37)

      After years of activism concentrated into the #CloseRikers campaign, (38) in conjunction with the momentum built by allegations of pervasive brutality in the lawsuit Nunez v. the City of New York (39)--which was joined by the U.S. Attorney for the Southern District of New York (40)--Mayor Bill de Blasio announced that his Administration would officially close Rikers Island. (41) His Administration eventually laid out an $8 billion plan (42) to construct a "smaller network of modern jails" in four boroughs. (43) The New York City Council officially endorsed this plan in October 2019 by voting to close Rikers Island by 2026.44 Ultimately, this borough-based plan depends on shrinking the jail population substantially to around 3,300 from approximately 7,000 in 2019. (45) Bail reform laws that prohibit the use of cash-bail for the majority of arrests are critical to reducing the jail population; however, those that went into effect on January 1, 2020--which had the potential to impact approximately 43% of all people held in pre-trial detention (46)--were amended by the state legislature only three months later. (47) The three-month impact of the original law led to a drop in pre-trial detainees across New York State, (48) and the effect of the revision may not actually be that substantive. (49) It is undeniable, though, that COVID-19 hit New York City particularly hard in March and April of 2020, leading activists and lawyers to demand the release of people in custody. (50) Further, the Board of Correction (BOC or the Board) urged the City to rapidly reduce its jail population. (51) Releasing certain categories of people did become part of the City's public health response to the pandemic, and as of April 2020, DOC reduced its jail population to just under 4,000 people. (52) However, the...