Use of force

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New York City Enters Settlement With Feds Over Rikers Island Brutality

New York City and the Department of Justice settled a 2012 class action lawsuit this week brought by the Legal Aid Society (Nunez v City of New York), alleging rampant inmate abuse on Rikers Island. The Nunez lawsuit is just one of many to have detailed the horrific conditions facing inmates in NYC jails and underscores the pervasive brutality and impunity with which the city’s corrections officers have traditionally operated.

In December of last year, Mayor Bill De Blasio’s Rikers Island task force introduced a collection of proposals he argued would make the city a progressive leader in criminal justice reform. Those proposals included ending solitary confinement for inmates under 21 (contingent on funding and programming by 2016), curbing punitive segregation for inmates with a history of mental illness, implementing thousands of surveillance cameras, rekindling the Department of Correction’s (DOC) long-dormant recruitment program and beefing up oversight and investigative measures aimed at policing the behavior of guards. At the beginning of this year, the city also implemented a multi-million dollar super-solitary unit known as the Enhanced Supervision Housing Unit (ESHU) and announced plans to restrict inmate visitation, which were met with vehement protest from the community.

The majority of the terms of the settlement mirror proposals from the De Blasio task force. And while some of these reforms would qualify as improvements of the status quo, I believe the package will ultimately fall far short of the city’s goal of ending the abusive environment on Rikers and achieving one of those most progressive criminal justice systems in the country. The reforms are largely empty gestures towards law enforcement accountability we see taking place elsewhere in the country, or represent policies and procedures that should shock each and every one of us for not having existed before; their implementation  should not impress us now. Really, this situation should lead us to question whether the department can be trusted to play a constructive role in the city’s justice apparatus.

The following analysis is based on the summary of the agreement made available on the Department of Justice website.

Monitor: Steve J. Martin

The agreement calls for the establishment of an independent Monitor to oversee the implementation of the terms of the settlement. According to the NY Law Journal, Steve J. Martin is a former corrections officer and “prison reform expert” out of Oklahoma who has been involved in lawsuits out of NYC jails for over two decades.

It is worth noting that Martin’s selection as Monitor was praised by the president of the powerful Correction Officers’ Benevolent Association Norman Seabrook, who believes “Martin will treat his roughly 9,200 members even-handedly—and conclude that the vast majority of guards are not responsible for excessive violence that has been the target of critics.”

Wishful thinking or not, Seabrook is not the only person quoted in the article who believes Martin will be “balanced” in his oversight of guard-on-inmate brutality.

Use of Force & Officer Oversight

The Department of Corrections will be required to create a new Use of Force policy that will “set forth explicit prohibitions regarding the use of certain categories of force, and provide correction officers with clear direction on when and how force may be used.”

Officers will be required to report use of force incidents, and DOC investigations into those reports will be “thorough, timely and objective.” DOC will “take all necessary steps to impose appropriate and meaningful discipline, up to and including termination,” for officers found to be in violation of the policy.

An “early warning system” will be devised to identify and discipline officers “whose conduct may warrant corrective actions,” as well as analyze data to help pinpoint “staff members who are at risk of engaging in serious misconduct absent appropriate intervention or services by DOC.” It is unclear what this system will look like or how it will work.

However welcome these changes may be, they are far from new or innovative. NYC jails have always had Use of Force policies and reporting requirements. The problem is they’ve rarely been enforced. It is unclear how the mere existence of these policies will force the cultural shift necessary for accountability to take place in the DOC — especially when there are still leaders within the department who were promoted after allegedly suppressing numbers on violent incidents involving inmates.

Technology

The Department of Corrections will also be required to beef up the presence of video recording technology throughout the facility. DOC will be expected to install at least 7,800 additional cameras on a rolling basis — at least 25% of which must be installed by July 1, 2016. At minimum, 75% of these thousands of cameras must be installed one year from now, and DOC will prioritize placement in facilities with “the most significant levels of violence.” It will preserve video footage of use of force incidents and inmate-on-inmate violence for four years.

Jumping on the growing bandwagon taking place in police departments around the country including the NYPD, DOC will be testing body cameras for use “by certain corrections officers.” This program will be evaluated in one year to determine if it should be expanded.

DOC will also force staff to use handheld video cameras to “record, among other things, responses to use of force incidents, cell extractions, and most living quarter searches, except when safety or security concerns require an immediate response that would preclude waiting for the recording requirement.” It will require recordings to be made in full and “any break in the recording be explained.”

Finally, the city will be required to introduce “enhanced computerized tracking systems” to monitor all the data on use of force incidents, investigations and disciplinary actions. The hope is that analyzing this data will help identify patterns that can inform inmate supervision and the oversight of officers. The goal is to set up a comprehensive system by the end of next year that will “track data relating to incidents involving correction officers in a centralized manner.”

While more cameras can be a good thing, they are far from a silver bullet. There are well-documented problems with relying on body cameras and other surveillance technology in law enforcement. For example, officers can simply turn their cameras off, or say they forgot to turn them on in the first place. In more than a few cases, the presence of video evidence doesn’t even change the outcome of proceedings.

Recruitment & Training

Perhaps one of the most shocking and embarrassing aspects of the DOC to be uncovered in investigations over the past two years has been that the department has had virtually no recruitment program and was not conducting background checks on new-hires for nearly a decade. DOC hires were found to have criminal ties, sometimes with people being held on Rikers Island. Others were found to have failed psychological exams and flunked the NYPD test, only to find employment in the city’s jails. Several have been found smuggling contraband to inmates while still others have been charged with extreme brutality against and deadly indifference toward inmates.

To this end, the DOC will develop a “comprehensive staff recruitment program to attract well-qualified applicants and will employ an objective process to select and hire staff.” This includes actually performing background checks for things as basic as making sure new hires aren’t known gang members or have relationships with prisoners on Rikers. The DOC will be made to exercise extra precaution when hiring supervisors and staff for special units like the ESHU and mental health segregation — including an analysis of prior use of force incidents. DOC will also implement additional and more-focused trainings on issues like use of force, crisis intervention and defensive tactics.

Finally, the settlement creates some space for whistleblowers at the DOC. It calls for the establishment of an “anonymous reporting system” to report use of force violations, and the DOC is instructed to “promptly notifty” the US Attorney’s Office of “any use of force incident where correction staff conduct appears to be criminal in nature.”

It’s great to see support for the development of a whistleblower culture at the DOC. But as anyone who has followed whistleblowing cases for the past few years likely knows, the existence of so-called “proper channels” does not preclude the bureaucratic indifference or threat of retaliation that often keeps dissidents quiet.

Incarcerated Children

The agreement also calls for additional reforms aimed at juvenile prisoners. They include specialized programming “to minimize idleness,” capping inmate-to-staff ratios, conducting daily inspections of youth housing, and developing an “age-appropriate classification system” for inmates under the age of 18.

It also calls for moving young inmates to “secure alternative housing” if they express concerns for their safety. It requires the adoption of the Direct Supervision Model, in which staff frequently and informally engage inmates in conversation and intervene in incidents early on to avoid escalation. There will be at least 32 hours of training involved in this program.

The DOC will be required to “timely report and thoroughly investigate all allegations of sexual assault involving young inmates” and train officers in youth housing in conflict resolution and crisis intervention — especially with regards to inmates suffering from mental illness.

With regards to the use of solitary confinement against children, the settlement seems not to acknowledge efforts by the Board of Correction to eliminate isolation among inmates aged 16-21, focusing instead on those under 18. While inmates under 18 will not be placed in solitary, inmates that are 18-years-old will be given “a continuum of alternatives.” DOC will not be permitted to use isolation against “any 18-year-old inmate with a serious mental illness,” placing them in solitary only after “a mental health care professional determines that confinement does not present a substantial risk of serious harm to the inmate.” The department will also be made to monitor the physical and mental health of any 18-year-old in solitary. DOC will maintain an “outside consultant” to independently review DOC infraction processes and procedures concerning minors.

Perhaps the most interesting item in the agreement is the plan to develop an “alternative housing site” for young inmates that “will make best efforts to identify an alternative site not located on Rikers Island.” The idea is to create housing that will be easier for family members to visit, increase safety and provide more adequate recreation and programing.

The handling of the youth prisoner dilemma on Rikers Island is perfectly emblamatic of how this “reform program” completely misses the mark. Rather than invest in the institutionalization and refinment of caging children, why not spend that money on developing programs and interventions in their communities instead? Why remove them from their communities at all? The acknowledgement that personal connection is important (made by plans to relocate youth inmates to housing more easily visited and outside of the jail atmosphere) shows that city leaders know jailing kids isn’t working, but lack the resolve to take that extra step and end youth detention altogether.

NYC: Latest Experiment in Carceral Liberalism

After months of platitudes on justice and transparency and accountability from the highest levels of city and federal government, after numerous packed and boisterous board meetings and reports and lawsuits, after promises to make New York City a pillar of progressive criminal justice, what we have been left with is the latest installment of the toxic “carceral Liberalism” sweeping the nation — that is, the drive to try to make prisons more “comfortable” and humane, and less offensive to the sensibilities of the public, instead of looking beyond their use completely.

The absolute madness of this is already becoming apparent. One Rikers reform involved giving mental health workers a greater role in decisions regarding the placement of an inmate in solitary confinement. City officials believed that jail guards had too much power to determine who could and could not be isolated, which they abused, and that placing a health professional in the equation would divert many inmates from the hole. But a recently released report actually argues that having medical staff make any such decision on punitive segregation is a natural violation of their Hippocratic oath to “do no harm.”

Just before that report, an investigation into the first few months of the ESHU found that officers failed to keep complete records and medical staff were delivering inadequate medical care. Despite a new facility, reformed protocols and newly trained staff, it was the same old problems at the same old DOC. Why should we trust the department to behave any differently now?

If NYC really wanted to take the lead in progressive criminal justice reform, it would have invested all of this time, energy and resources into looking beyond jails. The city has the opportunity now to devised new ways to enforce laws and pursue accountability by giving communities the resources and autonomy they need instead of coercing them and tearing them apart. Right now, it is ignoring that opportunity in what seems to be an effort to put this all behind them as quickly as possible.

At bare minimum, the city could have ended youth detention and the isolation of all inmates, but instead it has chosen to move youth detention and refine the use of isolation. It has asked for time and patience for the reforms to take hold, but NYC inmates (or those that have survived the clutches of Rikers) have waited far, far too long already.  This is not just an unacceptable strategy; it’s an insult to the dignity and intelligence of all New Yorkers.

Rikers needs a wrecking ball, not a wrench; the place should be shuttered, not renovated.  Until the city abandons its quest to fix its jails in favor of an effort to replace them with institutions focused on reducing — and not producing — harm, my guess is we will be left to “wait and see” until the next round of horrific reports are released, followed by more task forces, investigations and piecemeal reforms, ad infinitum.

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Excited Delirium, the Use of Force and the Death of Natasha McKenna

Update: Taser’s role in the rise of excited delirium diagnoses is an important part of this story. H/T to @SusieMadrak

Last week, police in Fairfax County, Virginia, said a medical examiner determined that a 37 year old mentally ill black woman named Natasha McKenna died of ‘excited delirium’ in February after being tased and restrained by six armored sheriff’s deputies.

I had never heard of excited delirium before, so I dug into it a little bit. The American Psychiatric Association (APA) maintains a resource known as the Diagnostic and Statistical Manual of Mental Disorders, or the DSM. The DSM contains a diagnostic classification list that details all the diagnoses recognized by the APA. It’s a pretty big book that details many, many mental disorders and diagnoses. Delirium is a classified diagnosis, but excited delirium is not.

That’s because there is significant and decades-old debate in the medical and civil liberties communities over whether excited delirium is real or if it’s a scapegoat for police brutality. Back in 2003, the Los Angeles Times reported that in-custody deaths involving excited delirium diagnoses were thought to be on the rise:

Although no one tracks the number of suspected cases — nor are there any public records on the number of people who die in police custody — researchers suspect that the condition accounts for a half-dozen deaths in most major cities each year. By some estimates, excited delirium is now being ruled as the reason behind the majority off all in-custody deaths.

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According to neurologists and medical examiners who have researched the issue, excited delirium is an often-fatal condition that can occur in a small subset of people who use drugs, mostly stimulants like cocaine or methamphetamines, over a long period of time. Typically, as users continue to take the drugs, the number of drug receptors in the brain rises, which helps pump dopamine and other excess hormones out of the brain.

But in people at risk of excited delirium, there is a genetic fault that impairs the brain’s ability to increase those receptors, they say. After drug use, that can lead to a dangerously high level of hormones in a part of the brain known as the amygdala, which later can bring on delirium, paranoia and aggression. More often than not, that attracts the police.

In such instances, even a minimal struggle can lead to too much pressure on the heart or lungs and the person can die. Another problem: Long-term stimulant use can enlarge and weaken the heart, which can be overtaxed during a big adrenaline rush. “It’s a very dangerous toxic mix of events,” says Karch.

The excited delirium diagnosis originated in the early years of the War on Drugs in cases involving cocaine. It therefor comes directly to us from a law enforcement and forensic psychiatry setting. The diagnosis is not recognized by many mainstream associations like the APA. Most cases involve people in distress who are often suffering from mental illness or, as the LA Times noted, substance abuse and addiction — and the use of force against them by law enforcement, many times involving tasers or restraints.

Amanda Truscott, writing in the Canadian Medical Association Journal in 2008, explored the dynamic between excited delirium cases and the use of force. She defined it as “being characterized by agitation, incoherence, bizarre behaviour, high temperature, superhuman strength, a high tolerance for pain — and sometimes, the compulsion to break or bang on glass.”

She tells the story of Robert Dziekanski, who died in-custody after a confrontation with police at the Vancouver International Airport:

Dziekanski touched down in Vancouver on Oct. 14, 2007, following a 13-hour flight from Poland and for 8 hours roamed the immigration lounge, steadfastly insisting that his mother would soon meet him. She, meanwhile, awaited his arrival in the baggage claims area, while airport officials did nothing to ensure the pair could connect. Lost, confused and unable to speak English, Dziekanski used office chairs to build a makeshift barricade between a pair of glass doors as if to ensure that no one could remove him from his meeting place with his mother. Obviously frustrated, he began to throw computer equipment onto the floor and against a glass wall. The police were summoned and in stunning sequence of events captured on video by an eyewitness’s cell phone, Dziekanski was pinned the floor, shot by a taser and eventually died.

The police said medical examiners determined that Dziekanski died of excited delirium.

In cases where an ‘excited’ person is restrained, tased and pinned to the floor and later dies, the excited delirium diagnosis introduces a level of ambiguity that absolves officers of responsibility for that person’s death. While most rational people would read these stories and conclude that, justified or not, it was the struggle and use of force that killed these individuals, excited delirium diagnoses shift the blame to the victim.

After all, isn’t this the primary tactic in law enforcement and criminal justice that got us to this very point of mass incarceration and extreme racism and brutality on behalf of cops and corrections officers? I do not believe the excited delirium diagnosis is all that different from the “super predator” myth of the 1990’s that helped fill American prisons by dehumanizing young black men as animalistic and aggressive. Instead of being treated as patients or just people in need of a crisis intervention, those who are said to have died of excited delirium are similarly labeled as dangerous monsters that needed to be put down.

In light of all of this, it’s fair to say Natasha McKenna’s purported cause of death could probably use an outside 2nd opinion.

h/t my old friend Kirk Murphy for bringing this to my attention