CRIPA Investigation of the New York City Department of Corre

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Notes:

1 When we use the term “adolescents” or “adolescent inmates” in this letter, we are referring to male inmates between the ages of 16 and 18 housed at Rikers.

2 We did not undertake a review of the adequacy of medical or mental health services provided to adolescent inmates at Rikers. Our discussions with DOHMH staff and review of DOHMH records were purely in support of our investigation into staff use of force, inmate-on-inmate violence, and the use of punitive segregation. However, our investigation nonetheless raises serious concerns about the quality of mental health services at Rikers; this critical issue, which warrants considerable attention and potentially raises concerns both under CRIPA and the Americans with Disabilities Act (“ADA”), may be addressed in a future investigation by this Office.

3 For various reasons, including because DOC was unable to locate some videos, and because DOC did not provide us with open DOC Investigation Division and staff disciplinary files, we did not receive all relevant records for these sample incidents.

4 After City attorneys expressed their desire to sit in on these interviews, we reached an agreement with the City whereby our consultant interviewed inmates one-on-one, outside both our presence and the presence of City attorneys, to encourage full and candid discussion between the inmates and our consultant. We participated, however, in the interview of one adolescent inmate—Inmate D—who was involved in a use of force that is highlighted in the Appendix to this report.

5 The Department is currently the subject of a class action lawsuit brought by current and former inmates at Rikers alleging system-wide, unconstitutional use of force by staff against inmates. See Nunez v. City of New York, 11 Civ. 5845 (LTS) (THK).

6 See Department of Correction website, http://www.nyc.gov/html/doc/html/about/about_doc.shtml.

7 Additional facilities are located in Brooklyn, Manhattan, Queens, and a floating jail barge in the Bronx. See http://www.nyc.gov/html/doc/html/about/ ... view.shtml.

8 North Carolina is the other state.

9 http://www.nyc.gov/html/doc/downloads/p ... ESCENT.pdf. These figures include adolescent females, which represent approximately 10% of all adolescent admissions. The fiscal year runs from July through June of the following year.

10 These use of force figures exclude “use of force allegations,” which refer to instances when sources other than DOC personnel report that force was used on an inmate. There were 56 use of force allegations at RNDC or EMTC in FY 2013 and 45 in FY 2012.

11 From April 2012 through April 2013, adolescent fights resulted in 430 visible inmate injuries, according to DOHMH data.

12 The internal report was not issued until 16 months after then-Commissioner Schriro directed the audit. RNDC staff’s failure to accurately and consistently document inmate fights also was noted during a prior security audit in early 2011, but little was done to address the problem.

13 RNDC inmates suffered 22 jaw fractures during the first 5 ½ months of 2012 alone.

14 Our investigation did not focus on incidents involving alleged sexual assault. However, the limited information we obtained raises a concern that DOC may be under-reporting sexual assault allegations. In calendar years 2011 and 2012, DOC reported a total of only seven incidents of alleged sexual assault where the alleged victim was an adolescent. (Five of these incidents were determined to be unfounded or unsubstantiated and the other two investigations were pending at the time DOC provided the data.) This number seems extremely small given the size of the adolescent inmate population, the frequency of inmate-on-inmate violence, and the high rate of negative interactions between staff and inmates. Our consultant expressed concern as to whether allegations of sexual assault are being consistently reported and investigated in compliance with the Prison Rape Elimination Act, 42 U.S.C. § 15601 et seq., and the relevant DOJ implementing regulations. We encourage the Department to examine these issues.

15 The Department’s Use of Force Directive directs that force may be used “only as a last alternative after all other reasonable efforts to resolve a situation have failed.” The Directive further provides that “the amount of force used at any time should always be proportional to the threat posed by the inmate at that time,” and “staff must start with the minimum amount of force needed and escalate the amount of force used only if the situation requires escalation.”

16 24-hour reports include summaries of unusual incidents that occurred during a given day, including use of force incidents.

17 The 64 incidents include 25 “use of force allegations.” There were 12 additional incidents that do not specifically reference a blow to the head or face but state that the officer punched the inmate and the inmate sustained an injury to his head or facial area.

18 DOC’s Use of Force Directive prohibits using force “[t]o punish, discipline, assault or retaliate against an inmate.”

19 The account of this incident is based on our consultant’s interviews of the two inmates, and DOI’s report summarizing its investigation and findings.

20 In late 2013, DOHMH’s Bureau of Correctional Health Services (“CHS”) analyzed serious injuries involving staff uses of force for the entire inmate population. According to CHS’ report summarizing its review, 64 of the 80 inmates CHS interviewed reported having been struck by DOC staff after being restrained.

21 DOC does not require staff to document counseling efforts so it is difficult to assess compliance with this policy.

22 According to the report prepared by DOHMH’s Bureau of Correctional Health Services (discussed supra at n.20), 45 inmates (including adult inmates) reported in interviews that DOC staff interfered with their effort to seek medical treatment or otherwise retaliated against them after a use of force incident by, among other things, threatening inmates with violence or infractions unless they declined medical care or stated that the injures were due to something other than staff use of force.

23 The inmate’s allegation that he was pressured not to report this incident also raises concerns under the Prison Rape Elimination Act, 42 U.S.C. § 15601 et seq., and the relevant DOJ implementing regulations.

24 Oleoresin Capsicum (“OC”) spray, commonly known as pepper spray, is a chemical agent that irritates the eyes and respiratory system of a target.

25 In July 2014, criminal charges were brought by the Bronx District Attorney’s Office against a Captain and two correction officers for beating an adult inmate unconscious. The DOC staff members were charged both with felony assault and with felony charges in connection with preparing and submitting false “use of force” reports. In June 2013, criminal charges were brought against ten DOC staff members, including the former Assistant Chief of Security, two Captains, and seven correction officers, in connection with a severe assault on an adult inmate that resulted in multiple facial fractures. These DOC staff members also were charged with not only felony assault, but with felony charges related to their attempts to cover-up the attack by submitting false use of force reports and false use of force witness reports, in which DOC staff claimed the inmate attacked an officer first. While the inmates involved in these particular assaults were not adolescents, the allegedly false information in the use of force reports in these criminal incidents is similar to the patterns suggesting false reporting that we found in our investigation.

26 According to the Department’s Use of Force Directive, a Class A use of force is one which requires “medical treatment beyond the prescription of over-the-counter analgesics or the administration of minor first aid,” including lacerations, fractures, sutures, chipped or cracked teeth, or multiple abrasions and/or contusions.

27 In early 2014, DOC announced that the ID was going to add 26 staff positions.

28 According to the Department’s Use of Force Directive, a Class B use of force is one “which does not require hospitalization or medical treatment beyond prescription of over-the-counter analgesics or the administration of minor first aid.” The “forcible use of mechanical restraints in a confrontational situation that results in no or minor injury” is also a Class B use of force.

29 According to the Department’s Use of Force Directive, a Class C use of force is one that results in “no injury” to the staff member or inmate involved, and includes incidents where “use of OC-spray results in no injury, beyond irritation that can be addressed through decontamination.”

30 One officer was identified as having been “counseled” on October 18, 2012, then again on November 29, 2012, and yet a third time on December 12, 2012, with no escalating response from the Department.

31 During calendar year 2012 alone, one officer was involved in 16 reported uses of force.

32 The incentive pay offered to correction officers willing to work in adolescent housing areas is equal to a 3% increase for the first year, and can reach up to 12% over a 4-year period. As of January 14, 2014, only 38 staff members had received “specialty pay” since it was introduced at RNDC.

33 In early 2014, after our on-site tours of the facilities and staff interviews, the Department once again appointed a new RNDC Warden.

34 In August 2013, 11 inmates and one correction officer reportedly sustained injuries during a large fight involving adult inmates in GRVC. This incident was captured on video that was obtained by ABC News and posted on its website. (http://www.huffingtonpost.com/2013/08/2 ... 99160.html). Although there were numerous staff members at the scene, none intervened while inmates fought and threw chairs and other objects at each other. According to ABC, the incident continued for more than one hour.

35 The Integrity Control Officer is charged with overseeing the extent to which staff comply with Department policies and procedures.

36 The use of force training materials include an example that offers troublesome guidance to officers. In the example, an inmate is seated in an unauthorized area and refuses to comply with an order to return to his housing area. The inmate spits at the officer and states: “It will take more than you to move me.” The materials incorrectly indicate that these circumstances justify the use of chemical agents against the inmate. However, in such a situation, best practices require the officer to first seek to control the situation verbally by applying appropriate conflict resolution skills, according to our consultant.

37 Graham Rayman, Rikers Fight Club, The Village Voice, Feb. 4, 2009.

38 Press Release, Bronx District Attorney=s Office, Death of an 18-Year Old Inmate on Rikers Island Last October Leads to Numerous Charges, Jan. 22, 2009, http://bronxda.nyc.gov/information/2009/case3.htm.

39 Elizabeth A. Harris, Corrections Officers Plead Guilty in Assault Case, N.Y. Times, Oct. 21, 2011.

40 Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.

41 Shortly after our second site visit in April 2013, DOC made the long overdue decision to stop placing infracted mentally ill adolescents in MHAUII. MHAUII was an inappropriate setting for any inmate suffering from mental illness, particularly adolescents. The conditions were deplorable, the physical facilities were in disrepair, and adolescents were not separated by sight and sound from adult offenders as required by correctional standards. It was evident that the adolescents were at risk of psychologically decompensating due to the corrosive environment. Several of the most egregious use of force incidents occurred at MHAUII. At the end of 2013, DOC finally closed the entire unit.

42 Inmates may be permitted to attend visits, the law library, or religious services in addition to the one out-of-cell hour permitted for recreation. In addition, as discussed below, certain infracted inmates with mental illnesses are placed in RNDC’s restrictive housing unit where they may earn additional out-of-cell time as they reach various goals.

43 During our investigation, we did not focus on the nature or quality of the educational services delivered to adolescents, including adolescents placed in segregation units. However, we are concerned that the educational services offered to youth in punitive segregation units may not comply with the requirements of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (“IDEA”), and may look more closely at this issue in the future.

44 In late 2013, DOC opened the Clinical Alternative to Punitive Segregation (“CAPS”) unit as an alternative to punitive segregation for inmates deemed to be seriously mentally ill. When placed at CAPS, the inmate’s infraction is set aside and he is assigned to a secure setting for treatment for a period of time determined by clinical staff. Unfortunately, the unit has only 60 beds for adult and adolescent male inmates combined, far fewer than is needed to accommodate the high number of seriously mentally ill inmates who commit infractions. Very few adolescents have been placed in CAPS. Gilligan Report, at 8.

45 Our investigation has not focused on the quality or adequacy of the inmate disciplinary system. However, based on the volume of infractions, the pattern and practice of false use of force reporting, and inmate reports of staff pressuring them not to report incidents, we believe the Department should take steps to ensure the integrity of the disciplinary process.

46 DOC has indicated that it plans to implement additional reforms, including the use of intermediate sanctions in lieu of punitive segregation (e.g., in-school detention, probation).

47 Ten of the inmates housed in the RHU had sentences exceeding 100 days.

48 An asterisk indicates that our consultant interviewed the inmate involved in the incident during our on-site tours.