177 Livingston Street 7th Floor Brooklyn, NY 11201 (718) 254-0700 info@bds.org

BDS TESTIFIES BEFORE NYC COUNCIL COMMITTEE ON JUSTICE SYSTEM AND COMMITTEE ON HOUSING AND BUILDINGS OVERSIGHT MEETING AND INTRODUCTION OF BILLS INT 1104-2018 AND INT 1529-2019

TESTIMONY OF:

Alexandra Dougherty, Senior Staff Attorney, Civil Justice Practice

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council

Committee on Justice System and Committee on Housing and Buildings

Oversight Meeting and Introduction of Bills Int 1104-2018 and Int 1529-2019

February 24, 2020

My name is Alexandra Dougherty, and I am a Senior Staff Attorney of the Civil Justice Practice at Brooklyn Defender Services (BDS). I would like to take this opportunity to speak in support of ongoing and expanded funding of the right to counsel for New York City tenants.

Brooklyn Defender Services provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for nearly 30,000 clients in Brooklyn every year. BDS’ Civil Justice Practice (CJP) aims to reduce the civil collateral consequences for our clients who have had interaction with the criminal, family or immigration justice systems. We also serve our clients with additional civil legal needs; we know that even a minor housing or benefits issue, if unaddressed, can have insurmountable repercussions, especially for our clients who are already dealing with serious problems in other forums.

BDS supports Intro numbers 1104-2018 and 1529-2019. We applaud the city for increasing funding and expanding eligibility for Right to Counsel programs. Our colleagues in the Right to Counsel coalition have made clear why this particular expansion of RTC is so critical, and we encourage the Council to continue supporting this important work.

As the Council expands the scope of what RTC representation can look like, we would like to take this opportunity to draw the Council’s attention to our specific client base. As an office in the unique position of already being assigned counsel in other forums, many of our clients’ civil legal issues are not easily generalized or best resolved by traditional Housing Court representation.  I urge the City Council to continue considering the specific circumstances and needs of tenants like BDS clients for whom housing instability is part of a broader picture that includes criminal or family court involvement.

The City should respect client continuity and client choice

The vast majority of CJP clients are referred to us by another BDS unit and already have a BDS attorney in another forum. Unlike traditional providers, our model allows us to establish a connection to clients without first requiring screening and an extensive in person intake procedure. We routinely give advice and appear in court for existing BDS clients immediately upon contact. Providing civil representation within BDS minimizes confusion for our clients and saves clients the time of going through a complicated intake procedure with another provider, as well as and the emotional labor of discussing sensitive details of the case at a new office.

The nature of our representation means that we are able to share information about our clients’ cases amongst our colleagues at BDS in order to anticipate and avoid potential civil problems. Our clients can choose to work with a CJP attorney as soon as they have housing or civil questions instead of waiting until they are sued in Housing Court. When we get involved early, we are often able to prevent a Housing Court case entirely by addressing underlying benefits issues with administrative agencies, settling directly with the landlord out of court, or giving clients preventative advice. When we are able to resolve issues before they develop into court cases, our clients are spared months of stressful litigation, the threat of imminent eviction, and placement on the tenant blacklist, which would be a devastating long term obstacle to securing stable affordable housing.

We frequently get involved in a case early when a BDS criminal client is temporarily excluded from their apartment pursuant to an order of protection. Our client is immediately forced to choose between finding new housing, and potentially owing rent in two apartments, or violating the order of protection and risk getting charged with contempt. In that situation, the tenant would not be eligible for representation from a traditional provider until they eventually fall behind in rent and get sued in Housing Court, potentially months later. Instead, we can immediately provide advice about their various options and minimize the risk of either losing the apartment or violating the order of protection. CJP’s housing specialist can also provide critical early guidance in that situation by helping our clients secure affordable housing before eviction is imminent.

Continuity in representation creates expertise and efficiency

BDS clients are often dealing with multiple complex legal systems. Their civil legal needs are best met by attorneys who have knowledge in and access to these other legal systems. CJP attorneys routinely go to criminal and family court with our clients and colleagues, and directly inform those courts about our clients’ housing and civil issues. When an incarcerated BDS client faces housing consequences we have the infrastructure in place to communicate with that client. We often prevent incarcerated tenants from defaulting in Housing Court because our colleagues refer those cases to us early.

In fact, judges and court staff are aware of our expertise and ability to handle these types of housing cases. We receive a steady stream of referrals from the court of cases in which the tenant is incarcerated or is facing eviction based on an underlying criminal case, as the court is aware that our office has a unique ability and capacity to work with these tenants.

Our colleagues from other providers also refer cases to CJP, even cases in the existing Universal Access zip codes. Housing cases that are linked with ongoing criminal or family court cases tend to be more legally and factually complicated and time-intensive than traditional Housing Court cases. We enthusiastically take these referrals from other providers who could successfully resolve multiple traditional Housing Court cases in the time it would take to litigate one housing case based upon criminal charges. We also take referrals of these cases from providers whose federal funding requirements prevent them from handling certain criminal charges.

Providing tenants with continuous BDS representation is not just administratively efficient, it is also client-focused and results in concrete victories for our clients. This is obvious when looking at NYCHA termination of tenancy proceedings. BDS criminal attorneys refer cases involving NYCHA tenants to CJP promptly before the threat of eviction has arisen. We consult with the criminal attorney and advise how a potential plea would affect our client’s NYCHA housing before NYCHA has even started a termination proceeding.

Ms. S and Mr. V are recent CJP clients who live in NYCHA with their daughter. Mr. V’s BDS criminal defense attorney referred them to us as soon as she became aware they were NYCHA tenants. We advised that Mr. V’s plea offer would likely be safe for the family’s housing because it would result in the case getting dismissed and sealed. Because we were involved at this early stage, we were immediately aware when NYCHA started a termination proceeding against Ms. S, who was the head of household. At the first hearing date NYCHA offered a settlement agreement in which Mr. V would be permanently excluded from the apartment on the basis of his arrest. His permanent exclusion would have been devastating for the family because Mr. V is their daughter’s primary care giver during the day while Ms. S is getting treatment for a chronic health issue. Instead of advising Mr. V and Ms. S to settle, we showed NYCHA proof that the criminal case had been dismissed and sealed; permanent exclusion based on that arrest would be a violation of New York State sealing statutes. NYCHA declined to pursue the termination proceeding and our clients were able to avoid any threat of eviction and disruption to their family’s stability. NYCHA routinely offers permanent exclusion to tenants facing termination regardless of the disposition of the criminal case, and CJP is uniquely able to protect our clients from devastating consequences of NYCHA’s repeated violations of the state sealing statutes.

BDS clients deserve nuanced resolutions, which are not always traditional “wins” in Housing Court

When a BDS client faces a cascading set of issues in multiple legal systems, the best outcome reflects our client’s priorities and considers these issues holistically. CJP attorneys work with our BDS colleagues to address our clients’ needs and respect their priorities. Sometimes, a traditional victory in Housing Court does not reflect these priorities. An alternative solution like entering shelter voluntarily may be the best option considering ongoing housing and family cases, for example. Traditional providers can’t always identify alternative resolutions when their representation is limited to Housing Court.

One BDS client, Mr. S, was living in a one bedroom rent stabilized apartment when ACS removed his three children from their mother and placed them in his custody. He suddenly found himself the single dad of three kids in a one-bedroom apartment. He was forced to quit his job to care for them and couldn’t pay for his rent. Meanwhile, ACS began threatening to remove the children from him too because the apartment was too small for all of them. Amid this uncertainty, Mr. S’s landlord brought a non-payment case against him because he had fallen behind on the rent. He could have easily applied for FHEPS, which would have paid his arrears and ongoing rent, and remained in his affordable rent stabilized apartment. However, he was desperate to leave the apartment and prevent the removal of his children. What Mr. S wanted was to save his family, which required either finding a larger apartment on an emergency basis or going to PATH and be placed in an appropriately sized shelter. Housing Court is rightfully very resistant to the idea of surrendering an affordable rent stabilized apartment. Without our knowledge and expertise of Mr. S’s family court situation, he likely would have been forced into resolving the nonpayment case at the expense of losing his children to foster care.

Conclusion

BDS enthusiastically supports the city’s groundbreaking Right to Counsel initiative and its commitment to implementing and expanding the program. Our partners in the Right to Counsel Coalition provide critical and zealous representation keeping thousands of the most vulnerable New Yorkers in their homes each year. As the City Council continues to expand Right to Council, we ask that they remember the unique needs of our client population and how they may be best served in every capacity. The Civil Justice Program will continue work to meet the needs of BDS clients suffering unsafe housing conditions, facing eviction for nonpayment during times of financial hardship, or facing eviction in holdover proceedings borne from Brooklyn’s shortage of affordable housing and rampant gentrification, whether this means litigation in housing court, representation in administrative hearings, or where these issues can be resolved through persistence and determined advocacy of our staff.

Thank you for considering my comments. If you have any questions, please feel free to reach out to me at 718-254-0700 ext. 141 or adougherty@bds.org.

BDS TESTIFIES BEFORE NYC COUNCIL COMMITTEE ON PUBLIC SAFETY JOINTLY WITH THE COMMITTEE ON JUSTICE SYSTEM OVERSIGHT HEARING DNA COLLECTION AND STORAGE IN NYC

TESTIMONY OF:

Clinton Hughes

Forensic DNA Attorney

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Public Safety

Jointly with the Committee on Justice System

Oversight – DNA Collection and Storage in NYC 

February 25, 2020

My name is Clinton Hughes. I am the Forensic DNA Attorney at Brooklyn Defender Services (BDS). I have practiced as a public defender for 23 years, seven of which I have specialized in forensic DNA litigation. I am part of the Forensic Science Practice at BDS. The Forensic Science Practice’s mission is to provide resource and support counsel services to trial attorneys facing complex forensic issues in misdemeanor, felony, and homicide cases in Brooklyn Criminal and Supreme Court. In that role, the Practice monitors the development of emerging scientific, technical, digital, and surveillance techniques, educates our trial lawyers regarding those techniques, and analyzes the legal and scientific or technical issues raised by the techniques themselves as well as their use or misuse.

BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for nearly 30,000 clients in Brooklyn every year.

I thank Chair Donovan Richards and Chair Rory Lancman for inviting us to testify today about DNA Collection and Storage in NYC.

BDS joins with the other defenders in calling for the City Council to abolish the unauthorized suspect database maintained by the New York City Office of Chief Medical Examiner, in conjunction with the New York Police Department.

Background

In 1997, the OCME implemented a system for collecting previously-typed DNA profiles into a searchable local database. Originally, the OCME’s local database was called LINKAGE. In 2014, the lab absorbed the LINKAGE database into the local level of the CODIS database, called the Local DNA Index System (“LDIS”).

By way of brief background, CODIS (Combined DNA Index System) is actually the software databasing package developed and provided by the Federal Bureau of Investigation to DNA laboratories around the country. The CODIS database system consists of three levels: the National DNA Index System (NDIS); the State DNA Index System (SDIS); and the Local DNA Index System (LDIS). As the administrator of the CODIS database system, the FBI promulgates detailed regulations governing the types of samples that can be uploaded to NDIS, as well as quality assurance standards for labs conducting testing that feeds into NDIS.

In New York, the New York State legislature created the State DNA Databank in 1994 with the passage of Executive Law § 995. The database became operational in 1996. By law, when it comes to known contributors, the New York database can only house DNA collected from convicted offenders. While the list of crimes for which a conviction permits DNA sample collection has grown five times since 1996, the New York State legislature has repeatedly rebuffed efforts to expand DNA collection to arrestees.[1]

Despite New York State’s careful calibration of the balance between the individual’s rights to genetic and basic privacy, as well as due process, and the State’s interest in crime solving, the City of New York’s agencies—the NYPD and the OCME—have chosen to operate a rogue DNA database that reaches samples taken from persons not authorized for collection. In other words, the OCME’s “LDIS” does an end run around New York State’s carefully prescribed scheme in pursuit of crime solving.

And over the last five years, the OCME’s rogue database has been growing.[2]

Growth of the OCME’s Rogue Database

This unauthorized database has been fed in part by the surreptitious collection of individuals’ saliva samples by the NYPD.

The NYPD’s practice has developed into stacking up cartons of Newport cigarettes – the most popular cigarette in our clients’ communities. The police then hand them out like candy during interrogations at precincts. No nervous arrestee or detainee, even if they were completely innocent, would envision that accepting the cigarette to smoke in the middle of a public building with the blessing of the police would mean that their profile would end up in perpetuity in a database.

We have watched videos where our clients have asserted their right to counsel as they drink from a water bottle or smoke an offered cigarette. Then they are led out of the interrogation room, the cigarette butts are left in the ashtray – what are our clients going to do, eat them? Put them in their pockets? – and the police collect the cigarette butts for evidence. The same little game plays out with water cups or bottles, and DNA profiles are collected by the thousands.

Self-regulation is not the answer here. What started as a self-regulated, unauthorized database has emerged into a vast invasion of the genetic privacy of thousands of New Yorkers, many if not most of whom, are poor people of color.

The local database is in contravention to Executive Law § 995-d, which dictates that the results of DNA testing are confidential and which specifically protects the right of a defendant to nondisclosure of his or her DNA information.

As Dr. Howard Baum, former Technical Leader of the OCME and creator of the local database has stated, he never envisioned that the database would become the repository of profiles that the NYPD dragnetted from neighborhoods of color. Our clients at BDS have been directly impacted by dragnets – the systematic search for someone like a black male in Brownsville — practices that target our clients particularly because they are Black or because they are male or because they reside in a particular neighborhood.

Dr. Baum never envisioned that the database would include thousands of profiles who were tricked into handing over their DNA without consent or court-order. Even our clients who consented to have their DNA taken have told us that they had no real understanding that their cooperation meant that their DNA would lead to their profiles staying in a government database forever.

Dr. Baum never envisioned that the local database would include people who were merely detained – sometimes never even arrested, and many never being convicted of any crimes.

The local database was also set up long before the NYPD’s Domain Awareness System was created. The Domain Awareness System (“DAS”) is a software program created by the NYPD and Microsoft that aggregates data collected by the NYPD across the city. While the DAS’s role in aggregating surveillance camera video is well known, another DAS function is its ability to inform officers whether or not an individual detainee’s DNA profile is in the database – thus making the detainee a target for DNA collection by individual police officers.

The OCME and NYPD DNA collection and storage practice’s threat to our community’s liberty is also growing.

The practices of the NYPD mean that not just the numerical profiles of Black and brown folks get warehoused in an electronic database. For each of those warehoused profiles, the OCME maintains extracts of the DNA in tiny vials like these:

As technologies emerge, law enforcement and the lab can go back to that little vial and effectively interrogate the DNA to invade the genetic privacy of the individual’s genetic code in even deeper and more disturbing ways. Genetic genealogy, which has been much reported-on in the news recently, is only the latest incarnation. This technique uses DNA analysis methods that mine more of the human genome for sensitive information than a traditional forensic DNA test, and surveil not just the individuals’ DNA but also the DNA of that individual’s entire family line.

The DNA technique employed in genetic genealogy—Single Nucleotide Polymorphism (SNPs) testing or Next Generation Sequencing—is being considered for widespread forensic uses by the law enforcement community as we speak. Whereas traditional DNA testing—Short Tandem Repeat (STR) testing—only measures the lengths of certain segments of non-coding regions on our genome, SNPs and NextGen testing actually codes the genome (revealing the specific As, Gs, Ts, and Cs we all learned about in high school) and potentially reveals deeply intimate details including things like predisposition to disease and susceptibility to addiction. And where STR testing only looks at a very small percentage of the overall genome, SNPs testing looks at huge percentages of the overall genome, revealing the most private elements of our selves.

In the face of this brave new world of genetic testing and the overall threat to privacy, as well as our First Amendment associational freedoms, we need to think about vulnerable communities when considering emerging technologies. The OCME and the NYPD, without oversight or regulation are effectively building a warehoused library of entire community’s genetic extracts. With emerging technologies like genetic genealogy and so-called Next Generation Sequencing, the genetic privacy of not only the individual but the individual’s family will come under surveillance by law enforcement.

We now know that ‘Junk DNA’ is not really “junk” at all: it can by tied by inference to other areas on the human genome, that in turn can reveal sensitive information like susceptibility to disease.[3] As technologies emerge and forensic profiles become even more revealing of a person’s biological status, it is really encumbent upon our elected officials to protect the genetic privacy of its citizens and their families.

A pledge by the NYPD to review cases it has submitted in order to ‘clean up’ the database is not enough. First, this self-regulation does not address that the database is not authorized by law. Second, the City Council cannot rely on the NYPD to self-regulate a problem that it has created and perpetuated with unbridled zeal.

The time is now for the Council to abolish this rogue database and allow law enforcement to work under the structure set up by the state legislature Executive Law Section 995.

[1] It is worth noting that, in 1999, the legislative record reflects that then-Mayor Rudy Giuliani even specifically requested that the legislature expand collection to arrestees. Mayor Giuliani asserted: “While the City enthusiastically supports this legislation and acknowledges the positive effect it will have on solving crime, it should be noted that the City of New York believes DNA testing upon arrest would allow for even greater efficiency and effectiveness in law enforcement. Examining DNA samples at the time of arrest would dramatically increase the ability of police to accurately identify or negate one’s potential culpability while under arrest.” The New York State Legislature refused to expand the database to arrestees.

[2] Ann Givens and Robert Lewis, “Push to solve gun cases fuels rapid growth of New York’s DNA database,” New York Daily News (Sept. 25, 2017), at https://www.nydailynews.com/new-york/nyc-crime/push-solve-gun-cases-fuels-growth-new-york-dna-database-article-1.3516711.

[3] See “Statistical Detection of Relatives Typed with Disjoint Forensic and Biomedical Loci,” Cell 175, 848–858, October 18, 2018, and “Linkage disequilibrium matches forensic genetic records to disjoint genomic marker sets,” PNAS | May 30, 2017 | vol. 114 | no. 22 | 5671–5676.

BDS TESTIFIES BEFORE NYC COUNCIL COMMITTEE ON CRIMINAL JUSTICE OVERSIGHT HEARING ON VIOLENCE IN CITY JAILS

TESTIMONY OF: 

Brooke Menschel 

Civil Rights Counsel 

BROOKLYN DEFENDER SERVICES 

 

Presented before 

The New York City Council  

Committee on Criminal Justice 

Oversight Hearing on Violence in City Jails 

 

February 3, 2020 

 

My name is Brooke Menschel. I am the Civil Rights Counsel at Brooklyn Defender Services (“BDS”)I have been engaged in legal advocacy around jail and prison conditions in New York and throughout the Deep South.  

 

BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for nearly 30,000 people in Brooklyn every year, thousands of whom are detained or incarcerated in City jails in connection with their criminal cases. We thank the City Council Committee on Criminal Justice, and in particular Chairman Keith Powers for the opportunity to testify about the experiences of the people that we represent who are housed in the City jails, along with the members of the BDS staff who serve them. We also call the Committee’s attention to the Eighth Report (“Report”) filed by the court-appointed monitor in Nunez v. City of New York et. al, 11-cv-5845 (LTS), filed this past October, which assess the efforts and progress made by the City and the Department of Corrections (“DOC” or “Department”) to reduce violence in the City’s jails. 

Any discussion regarding jail conditions would be incomplete if we did not first address the compulsion toward incarceration rather than community investment in resources that actually improve safety. Pre-trial incarceration, in particular, has long been used as immediate punishment prior to any trial that has served as leverage to extract guilty pleas regardless of culpability. The 2019 bail and discovery reform laws in New York are a critical step to ensuring that, at least in most criminal cases, jails do not serve these improper purposes. Studies show that the vast majority of people released without conditions, or whose bail is paid by a charitable fund, attend all court dates and fulfill all obligations. Pre-trial services, including Supervised Release and other programs that are well-funded in New York City, are successfully helping ensure that people appear for court without destroying their lives. By contrast, even a relatively short time in jail often derails a person’s livelihood, living arrangements, family obligations, and community ties. Nonetheless, the 2019 laws are now under coordinated and direct political attack and require ongoing support from elected officials in all levels of government. The new laws make our City safer, but these critical gains may be lost if we as a community—including more government leaders—do not join together and support the new laws. 

Nevertheless, addressing endemic violence in New York City jails will take more than reducing the population. What is required is dramatic culture change that permeates the Department of Correction and a commitment by City leadership to invest in educational systems, healthcare and treatment facilities, local infrastructure, and the fabric of communities that will ensure all New Yorkers have the opportunity to prosper. The stated goal of creating a jail system that is smaller, safer, and fairer–one consistent with the overall criminal justice system we are building in New York City, in which crime continues to fall, the jail population drops significantly, and all New Yorkers are treated with dignity”1 is not only appropriate, it is a necessity. Yet it remains aspirational. This is a significant moment in our City’s history to address the needs of communities devasted by our criminal legal system and mass incarcerationWe can start by taking steps to ensure that the City’s jails are not the most violent corners or our community.  

New York City Jails’ Culture of Violence 

Historically, NYC jails, especially those on Rikers Island, have seen astronomical rates of violence. Countless lawsuits, media reports, and investigations have detailed the violence and abuse that seeps into every corridor of the DOC. The “culture of violence” is well documented. In a 2015 statement announcing the Nunez agreement, then-U.S. Attorney Preet Bharara noted that the settlement agreement provided a “comprehensive framework [that] requires the City to implement sweeping operational changes to fix a broken system and dismantle a decades-long culture of violence.”2  

Nearly five years later—thanks to the voices of directly impacted people, pressure from advocates, oversight of the court-appointed Nunez monitor, and the commitment of government officials including members of the City Councilthere are indications that progress is possibleNonetheless, the promised reforms and improved culture continue to elude us. The most recent report issued by the Nunez monitor described how much further we still have to go: 

The conditions that gave rise to the [Nunez] Consent Judgment have not abated since the Effective Date. While the pace of reform is not stagnant and the Department has taken several steps to advance the reforms, the Department has not shown itself capable of devising and implementing effective strategies to fully institutionalize the [required reforms]. . . . Simply put, the system is overwhelmed. . . . The Department’s efforts during the Eighth Monitoring Period did not initiative a change to the troubling conditions that have existed through the time of the Consent Judgment. . . . This cultural dynamic, which is better described as an occupational ideology, runs counter to modern and professional correctional practice. Ultimately, these failures perpetuate the toxic culture of the Facilities discussed in previous reports.3   

Academic literature and court filings are rife with reasons that the troublesome culture persists. The constant theme is that officers and staff rely heavily on physical forceviolence, and other trauma-inducing practices as “tools” to control people in their custody, and those practices foster an environment where violence is not just the norm but in fact the preferred method for addressing conflictThe Nunez Report alone identifies a range of training, supervision, and accountability factors that contribute to the deficient culture.4 Notably, the Nunez monitor described staff’s inability to manage the people in their charge and a habit of “dehumanizing inmates and exacerbating the use of force via their language, tone, and non-verbal communication.”5 Similarly, the Department and the Correction Officers Benevolent Association (“COBA”) adamantly oppose limitations on the use of restrictive housing, claiming time and again that it is the most effective means of maintaining safety, security, and order.6 Studies consistently conclude that isolation induces irrational anger and diminishes impulse control, leads to violent outbursts, and invokes the very behavior it theoretically aims to discourage.7 Yet because the Department has relieso heavily for so long on isolation as a means to address violence, it is ill-equipped to prioritize more effective methods of discipline and rehabilitation.  

The Nunez Report details an increase in the use of force by correctional staff, the highest rate since monitoring began.8 The Department’s efforts to equip staff with de-escalation techniques and compel them to apply their skills have been largely ineffective.9  Rather than exercising patience, restraint, and common sense, staff too often fuel conflict through belittling name-calling and provocation, then jump at the chance to use violence.10  

The frequent and persistent reports from people we represent that staff use pepper spray indiscriminately and without provocation are just one example of this troubling trend. In response to a verbal disagreement with one young person BDS represented, an officer became enraged and took out her pepper spray. When the young man fled the area, the officer unleashed the pepper spray and changes the young man through the mess hall, dousing everyone else in the area. The pepper spray triggered a severe asthma attack which left the young man coughing up blood. He was taken to intake where he waited several hours before receiving medical care. All in response to a verbal disagreement.  

More challenging to quantify than any use of force by staff, but arguably more disturbing, is the frequent reports that we receive that staff are complicit in, encourage, and facilitate gang violence. In a recent incident, an officer threatened to move one man into a unit housing rival gang members following a verbal argument. Indeed, shortly after the man was moved, he encountered approximately seven members of a rival gang. Predictably, he was attacked and suffered two deep cuts on his face, requiring several stitches. 

Treating People with Humanity Would Reduce Violence 

Beyond the most serious cases of physical brutality, stemming the tide of violence in City jails requires addressing the myriad humiliations people endure on a daily basis. As the Nunez monitor recognized, “language, tone, and non-verbal communication” can all exacerbate violence.11 Structural and individual cruelties contribute to an environment rife with tension. For example, most young people are limited to visits devoid of meaningful physical contact–separated by a wide table and plexiglass barrier. Ostensibly a security measure, the separation of young people in crisis from a parent’s loving touch breeds deep resentment and fuels anger. To make matters worse, conversations during visits are often dominated by the humiliating ordeal visitors endure to get through “security procedures” prior to seeing their loved ones. 

Other everyday cruelties include officers tightening handcuffs to the point that hands lose their feeling, then twisting the wrists to cause shooting pain while uttering threats of further violence. In restrictive housing and similar high-security units, people rely on officers for their most basic needs. When officers take it upon themselves, which we understand happens regularly, to deprive people of toilet paper, food, showers, recreation, or other human necessities as unofficial retribution for disfavored conduct, people become desperate. That desperation predictably leads to further misbehavior, for which they often suffer further unofficial punishment.As a result, some people turn to gangs for access to basic amenities and, fundamentally, for survival. And in turn, the cycle of violence and isolation becomes more entrenched and more difficult to dismantle. 

We cannot reduce violence in the City’s jails or among incarcerated people without first addressing the ways staff practices fuel the broader culture of violence.  So long as humiliation remains a celebrated tactic and gangs are manipulated to control or intimidate, violence will remain unabated.  

Lack of Adequate Supervision and Accountability Mask Abuse and Compound Problems 

The Department’s promotion, supervision, and investigation practices only reinforce the conclusion that uniformed staff are permitted to brutalize the people in their care with impunity. A major shift in Department culture can only happen when supervisors and management respect the basic human dignity of the people in their care, demonstrate a baseline of professionalism, and ensure accountability among the rank and file. Sadly, this is far from the case right now. The Department’s long-standing and consistent failure to meaningfully investigate and hold officers accountable for brutality and misconduct has led to leadership that itself practices—and at the very least condones—those very same abusive tactics 

Visiting the jails, it is far too common to hear supervisors encourage cruelty, disrespect, and violence toward incarcerated people. The people we represent report these experiences on a daily basis. Even more disturbing, perhaps, is the frequency with which supervisors themselves are responsible for unnecessarily escalating conflicts or encouraging subordinates to resort to force quickly and excessively. Once an incident is underway, supervisors sometimes participate in the very acts of brutality they should intervene to prevent. And those who do intervene are largely unsupported as they try to impose accountability on their subordinates. The Nunez Report describes the trend and its impact: 

Staff engaging in insubordination, including in some instances exhibiting out-of-control behavior and physically assaulting supervisors who attempt to intervene in an inappropriate use of force. That incidents like these are occurring at all, and are not addressed immediately by management, clearly serves to perpetuate an already toxic environment.12  

Even when supervisors are not involved in an incident, they are routinely complicit in violence by failing to ensure a fair or effective investigation process. Interviews with victims or witnesses of use of force regularly take place within earshot of other people, often including the very Department staff involved in an incident. Officers are known to retaliate against people who report misconduct, both violently and through more subtle means.13 Many people refuse to provide a full account of an incident in order to protect themselves because they fear retaliation in one form or another. Almost universally, victims and witnesses who come forward to report violence or brutality despite the risk of retribution and discredited without any reason. And rather than intervening to address these deficiencies, supervisors often ignore evidence of collusion and fail to interview victims or witnesses of uses of force themselves. Instead, the regular practice is for supervisors to rubber-stamp the statements of subordinate officers.  

While the Department’s investigators are purportedly independent, the division is plagued by many of the same deficiencies and itself serves as a rubber stamp on misconduct. Preliminarily reviews of allegations are rarely completed in a timely fashion, and the investigations that are completed regularly fail to uncover or address staff misconduct. In rare cases that an investigation finds staff misconduct, discipline is delayed and largely ineffectual, except in certain high-profile cases.14 

We urge the Department and City officials to closely review promotions, demand a baseline of professionalism and competence from supervisors, and strictly enforce accountability. With even a semblance of adequate supervision, we believe some of the most egregious incidents could be avoided. In the long-term, it is imperative that management and supervisory staff embrace and demonstrate respect for the dignity of the people in their custody. When misconduct does occur, as it inevitably will in a large, complex system, we must demand accountability and transparency rather than allowing misbehavior to fester and go unpunished.  

Conclusion 

The Council’s focus on violence in the jails is timely. Just last week, the Board of Correction (“Board” or “BOC”) concluded its public comment period on restrictive housing rulemaking,15 and is expected to release revised rules in the coming months. In October, the Nunez Report laid out an action plan to improve the culture in the jails. The movement to “close Rikers” is well underway. Law reform has paved a path to reduce the population of the City’s jails.    

Now is the time for fundamental, systemic change. We have a unique opportunity to not just change policy but also to address the serious systemic and cultural attitudes that lead to widespread violence and dehumanizing treatment of New Yorkers in City custody. Yet it is apparent that without more support for City and Department of Correction leadership, the change desperately needed to shift the “deep seated culture” will continue to drag. For years, the Department has promised impending reform, yet after the Nunez Report described little progress, DOC Commissioner Cynthia Brann once again sought to justify the continuing problems, noting that “[m]eaningful reform and culture change take time.”16 While we respect that decades of thinking does not shift overnight, at this point change is long overdue.  

The culture inside the jails seems to be getting worse, not better. In response to the Nunez monitor’s conclusion that “the number of [Use of Force] incidents and rates have continued to climb . . . . [and recently reached] their highest levels since the Consent Judgment went into effect,”17 Mayor De Blasio regrettably minimized the findings.18  

We urge our City’s leaders to read the most recent Nunez Report as a call to action. Rather than dismissing the findings and further delaying reforms that would ensure the people we incarcerate are treated safely, fairly, and with dignity, we hope the City will expedite culture change and embrace the monitor’s suggestions. People, not facilities, are at the root of the problem. Opacity and misdirection, not facilities, are the root of the problem. Excuses, not facilities, are the root of the problem. Until our leaders demand accountability and transparency, the culture of violence will invade any building we use to incarcerate people. We urge the City Council to lead the charge by: 

  • Requiring that the plan to close Rikers and expand borough-based jails incorporates policy, training, and supervision reforms that address the ongoing culture of violence inside the Department of Correction; 
  • Pushing the Department and the City to adopt the recommendations of the Nunez monitor, particularly those aimed at fully implementing the Use of Force Directive, improving the investigation process, and enhancing staff discipline and accountability; 
  • Demanding—through oversight, investigation, and reporting—that the Department no longer answer misbehavior with violence, insubordination with misconduct; 
  • Insisting that the Department curb its overreliance on chemical spray and other overly harsh restraints and instead prioritize and recognize officers who effectively adopt de-escalation practices; 
  • Encouraging the Board of Correction to adopt strict rules that limit the use of restrictive housing and replace it with effective, humane discipline strategies 
  • Supporting efforts by directly impacted people and their advocates to call attention to misconduct and excessive force in the jails; and 
  • Denouncing—in legislation, media interviews, and public forums, the ongoing cycle of violence festering in the City’s jails. 

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BDS is grateful to the Committee on Criminal Justice for hosting this important hearing and continuing to call attention to the troubling state of our City’s jails. Thank you for your time and consideration of our comments. We look forward to continuing to discuss these and other issues that impact people we represent.  

If you have any additional questions, please contact Kelsey De Avila, Jail Services Project Director, at kdeavila@bds.org or me at bmenschel@bds.org.