VII. REMEDIAL MEASURES
We recognize that the Department has instituted several new initiatives in recent years, some of which are specifically designed to better manage the adolescent inmate population. Some of these, such as the RHU, focus on alternatives to traditional punitive segregation for disciplining adolescent inmates. Others are designed to more productively fill the time for adolescent inmates, such as the ABLE program, also discussed above. Still other measures aim to reduce conflict between adolescent inmates, including by moving adolescents out of dormitory housing and requiring them to wear institutional garb and footwear. Additional staff have been added to adolescent housing areas, as noted above, as well as additional management positions, including a newly created position of Deputy Warden for Adolescents. Although these initiatives are laudable, they have thus far done little to meaningfully reduce violence among the adolescent inmate population. Indeed, at least one relatively new initiative, the use of TCR, has already been abandoned by the Department.
The larger problem, however, is that by and large these reforms do not address—or even attempt to address—the core problem and the heart of our findings: use of excessive and unnecessary force by correction officers against adolescent inmates and the lack of accountability for such conduct. The few reforms that arguably go to this issue—such as the installation of additional cameras, the addition of a DIAL hotline that allows inmates to anonymously report abuse, including by staff, and the addition of an Integrity Control Officer located within RNDC—do not go nearly far enough. As noted above, for example, there are still many areas throughout RNDC and EMTC with no camera coverage, including the school areas, where adolescent inmates spend a significant portion of their waking hours. Fundamentally, these few changes alone—while certainly important—cannot and will not fix a system where officers regularly use excessive and unnecessary force with minimal consequences.
Accordingly, in order to address the constitutional deficiencies identified in this letter and protect the constitutional rights of adolescent inmates, the Department should implement, at a minimum, the following measures:A. House Adolescent Inmates at a DOC Jail Not Located on Rikers Island that Will Utilize “Direct Supervision” Management Model
1. The Department should develop a plan to house adolescents at a DOC jail not located on Rikers Island that will be staffed by experienced, competent officers and supervisors who will receive specialized training in managing youth with behavioral problems and mental health needs. The Department should incentivize well-qualified staff to volunteer for assignment to this facility by offering significant pay increases, preferred schedules, and other benefits.
2. The Department should employ a “direct supervision” management style in the adolescent facility. Direct supervision refers to an inmate management strategy in which, among other things, staff continuously interact with and actively supervise inmates from posts within housing areas, as opposed to being stationed in isolated offices. Direct supervision has been shown to reduce rates of violence, lead to better inmate behavior, lower operating costs, and improve staff confidence and morale. Frontline housing officers and first line supervisors are afforded substantial decision-making authority so that they feel empowered and responsible for the effective management and supervision of the unit. To effectively employ the direct supervision approach, the jail should be designed to reduce the physical barriers between inmates and staff, and ensure clear sightlines to all housing areas. It would be difficult to implement direct supervision at RNDC due to its linear design and layout. Housing adolescent inmates at an alternative facility located off Rikers Island will put DOC in a better position to develop a new paradigm for effectively managing the adolescent inmate population.B. Increase Number of Cameras in Adolescent Areas of Jails
1. Install additional video surveillance cameras in all adolescent areas, including but not limited to housing areas, school/classroom areas, intake, search locations, and clinics.
2. Enhance and ensure compliance with procedures for maintaining video surveillance of use of force incidents and inmate-on-inmate fights or assaults, and sanction staff for failure to comply with these procedures. If, upon preliminary review, a particular portion of the video footage appears crucial, that portion of the video should be copied and maintained separately from the original.C. Strengthen the Department’s Use of Force Directive
1. Develop and implement the following clarifications and changes to the Use of Force Directive, and related policies and procedures:
a. Clarify the definition of “use of force” to provide better guidance on the conduct that triggers reporting and investigation requirements. The definition should include any instance where staff use their hands or other parts of their body, objects, instruments, chemical agents, electric devices, fire arms or any other physical method to restrain, subdue, intimidate, or compel an inmate to act in a particular way, or stop acting in a particular way.
b. Clarify that headshots are considered an excessive and unnecessary use of force, except in the rare circumstances where an officer or some other individual is at imminent risk of serious bodily injury and no more reasonable method of control may be used to avoid such injury.
c. Explicitly prohibit, or further highlight and emphasize the prohibition on, the following:
i. The use of unnecessarily painful escort or restraint techniques.
ii. The use of force as a response to inmate verbal insults or threats.
iii. The use of force against inmates in restraints, unless the inmate presents an imminent threat to the safety of staff or others in which case the force must be proportionate to the threat.
iv. The use of force as corporal punishment, emphasizing the principle that force can be used only to stop or control what an inmate is currently doing, not in response to what he previously did.
v. The use of force as a response to inmates’ failure to follow instructions where there is no immediate threat to the safety of the institution, inmates, or staff, unless staff has attempted a hierarchy of nonphysical alternatives that are documented, including the use of time as circumstances allow.
vi. Harassing or verbally provoking inmates.
vii. Retaliation against inmates, Departmental staff, medical staff, or teachers for reporting a use of force incident or providing information in connection with a use of force investigation.
viii. Pressuring or coercing inmates, Departmental staff, medical staff, or teachers not to report a use of force incident. d. In situations involving cell extractions or other planned uses of forces, require the following additional reporting: (i) the name of the mental health care professional who attempted to resolve the incident without the use of force; (ii) a written report prepared by the mental health care professional setting forth his or her efforts to attempt to resolve the situation and why those attempts were not successful; and (iii) the length of time spent trying to resolve the situation without the use of force.
e. Require staff in planned use of force situations to wait a minimum of 90 seconds after application of chemical agents before proceeding with a physical use of force so the chemical agent can take effect. Staff should be required to document compliance with this procedure. This requirement would not apply if an inmate’s conduct changes a planned use of force into a reactive use of force.
f. Specify requirements for training on the Use of Force Directive specifically, including which staff must complete the training, when they must be trained (including regular refresher courses), and the length of the training.
2. Reorganize the Use of Force Directive to make it more accessible to front line correction officers, clarifying key requirements and prohibitions. In addition, prepare a separate, short summary of the key requirements and prohibitions that are included in the Use of Force Directive. The summary should be designed specifically for use and quick reference by correction officers. A separate summary could be prepared for supervisors, outlining the key responsibilities for Captains and Tour Commanders.D. Use of Force Reporting
1. Ensure that all staff who are involved in or witness a use of force incident submit complete, accurate, and prompt reports. The Department should institute a zero tolerance policy for failure to submit complete, accurate, and prompt reports—both by involved officers or by witnesses—with serious consequence for failure to do so. Supervisors must also be held accountable for the failure of officers under their command to satisfy this requirement.
2. In the event staff report that force was necessary due to an inmate’s alleged resistance, require staff written reports to provide a specific and detailed description of the inmate’s alleged resistance and conduct.
3. Ensure that staff do not review video footage prior to completing their written reports or being interviewed, and prohibit staff from changing their written reports after reviewing video footage.
4. To the extent possible, segregate staff involved in a use of force incident until they have submitted their written reports to ensure that they submit independent reports.
5. Clarify the definitions of the categories of institutional violence data maintained by the Department (e.g., “use of force allegations,” inmate-oninmate “fight” vs. “assault”) to ensure the collection and reporting of reliable and accurate data.
6. Ensure that adequate systems are in place to accurately track information on use of force incidents and inmate-on-inmate fights and assaults, including the inmate(s) and/or staff involved, the location of the incident, the nature of any injuries, medical care provided, the investigation and findings, and any corrective, disciplinary, or prosecution actions taken against inmates or staff.
7. Ensure that medical staff advise the ID whenever they have reason to suspect that inmates have sustained injuries due to staff use of force so that such incidents are identified and properly investigated. Train medical staff on how to report incidents where inmate mistreatment is suspected.
8. Ensure that the camcorder operator assigned to search teams follows an established and approved video protocol and films any conflicts or incidents arising out of the search.
9. In the event a camcorder operator fails to properly record a planned use of force, conduct an investigation and, when appropriate, take appropriate disciplinary actions.
10. Expand the video recording protocol used for cell extractions or other planned uses of force to include the recording of: (a) attempts made to obtain the inmate’s compliance before force is used; (b) a statement from the team leader summarizing the situation and the plan for resolution; and (c) a statement from the camcorder operator explaining any impediments to obtaining a clear video recording of the incident.
11. Revise the grievance policy so that inmate complaints concerning staff use of force or staff verbal harassment are grievable, and ensure that such complaints are promptly referred for investigation.
12. Develop and implement a reliable procedure for identifying and timely addressing emergency grievances involving inmate safety issues.
13. Ensure that non-DOC staff, such as medical personnel and teachers, report any use of force that they witness. Clearly communicate this requirement to all non-DOC staff, emphasizing that failure to report such incidents, or false reporting related to such incidents, may lead to administrative or legal sanctions.E. Use of Force Investigations
1. Ensure that all use of force incidents are thoroughly and timely investigated, and that complete and detailed reports are prepared summarizing the findings and any recommended corrective actions. Each person investigating an incident, whether for a preliminary investigation or a final investigation, should be required to make recommendations based on his or her findings. Staff shall be accountable for biased, incomplete, or otherwise inappropriate investigations, reports, and recommendations.
2. Ensure that every reasonable effort is made to obtain the involved inmate’s account of a use of force incident, as well as the accounts of any key inmate witnesses, even if that requires making multiple interview attempts. Assure inmate witnesses that they will not be subject to any form of retaliation for providing information in connection with an investigation. Requests for interviews with inmates shall not be made at cell fronts or within sight or hearing of other inmates. Generally such requests shall be made one-on-one and off the living unit. Offer inmates the opportunity to be interviewed in a private and confidential setting.
3. Require in-person interviews of any staff member who submits a written report stating that he or she did not observe any use of force where there is reason to believe that the staff member was in close proximity to the location of the incident and should have observed what occurred.
4. Where video surveillance is available, require staff responsible for investigating the incident to summarize the video footage and explain whether the footage is consistent with witness reports.
5. Ensure that use of force investigations are completed in a reasonable amount of time. Require ID investigations to be completed within 60 days, absent unusual and documented circumstances. If necessary, increase the staff and resources of the ID to ensure that each investigator is assigned a manageable caseload.
6. Address the current backlog of pending ID investigations. Complete investigations of any incident that occurred during the last three months within 60 days of the date of this report. If necessary, allocate additional staff and resources to meet this deadline.
7. Ensure that investigation of the most serious use of force incidents are prioritized to ensure that they are investigated in an expedited manner.
8. Clarify the criteria used to determine whether use of force incidents must be investigated by the ID. At a minimum, the ID should investigate any incident involving: (a) an alleged headshot by staff; (b) a serious injury to an inmate or staff member; (c) a staff member who has been involved in three or more use of force incidents within the last 12 months; or (d) a staff member previously disciplined for violation of the use of force policies and procedures within the prior 18 months.
9. Clarify the criteria used to determine whether a use of force incident should be referred to law enforcement for further investigation, and establish a mechanism for then promptly referring relevant incidents to outside investigative and law enforcement agencies, including the United States Attorney’s Office for the Southern District of New York.
10. Develop and implement a standardized system for the organization and contents of investigation files to facilitate review and oversight.
11. Ensure that facility-level investigations are appropriate, thorough, and timely. In addition to the currently required reviews of certain facility-level investigations by ID line investigators, require senior ID managers and Department managers to periodically review a sample of investigations conducted at the facility level as well. The results of these reviews should be documented and any appropriate remedial actions should be taken.
12. Develop and implement a quality control process to ensure that ID investigations are appropriate, thorough, and timely. Senior Department managers should review a sample of investigations performed by the ID. The results of these reviews should be documented and any appropriate remedial actions should be taken. In addition, an external entity should conduct periodic audits of the ID’s operations and investigations.F. Safety and Supervision
1. Ensure that inmates are adequately supervised at all times.
2. Ensure that staff intervene in a timely manner to prevent inmate-on-inmate fights and assaults and de-escalate inmate-on-inmate altercations.
3. Ensure that injured inmates receive prompt medical care after a use of force incident or inmate-on-inmate fight or assault. Ensure that staff document the time and date an inmate is taken to receive medical care after a fight, assault, or staff use of force, and the time and date the inmate is initially assessed by medical staff.
4. Develop and implement an age-appropriate classification system for adolescent inmates that incorporates factors that are particularly relevant to assessing the needs of adolescents and the security risks they pose.
5. Promptly place adolescents who express concerns for their personal safety in temporary protective custody housing, pending evaluation of the risk to the inmate’s safety and a final determination as to whether the inmate should remain in protective custody housing, whether the inmate should be transferred to another housing unit, or whether other precautions should be taken. The Department should follow the same protocol when a family member, lawyer, or other individual expresses credible concerns on behalf of an adolescent inmate.
6. Transfer any inmates deemed to be particularly vulnerable or otherwise at risk to an alternative housing unit.
7. Redefine expectations regarding staff professionalism and staff-inmate communications, and implement a zero-tolerance policy towards verbally harassing or humiliating inmates. This prohibition should include homophobic slurs, racial epithets, and obscenities. The Department should document the new expectations and clearly convey them to staff, and hold non-compliant staff accountable.
8. Offer adolescents enhanced programming and activities, especially in the evenings and on weekends, to engage them and reduce idleness.
9. To the extent possible, adopt a team staffing structure where a group of officers and a supervisor are consistently assigned to the same adolescent housing area and same tour to facilitate staffing continuity and improve staff-inmate relations.
10. Limit the practice of assigning recently hired correction officers to adolescent housing areas immediately upon their graduation from the Academy.
11. Develop and implement measures to reduce staff turnover at adolescent housing facilities.
12. Adopt incentives, including greater financial incentives, to persuade experienced and qualified officers to work in adolescent housing facilities.
13. Ensure that specialized teams, such as the probe and cell extraction teams, are staffed with officers with superior skills and extensive experience. To the extent possible, the staffing of these teams should remain constant for stability and continuity purposes.
14. Require the Wardens and Deputy Wardens to tour adolescent housing units for at least one hour each day, making themselves available to respond to questions and concerns.
15. Ensure that all allegations of sexual assault involving adolescents are properly and timely reported and thoroughly investigated, whether those allegations are from an inmate, a family member, an inmate advocate, a grievance, or some other source.G. Training
1. Develop more comprehensive and effective competency-based training programs on use of force policies and force and defensive tactics. The trainings should be largely scenario-based and involve significant role-playing, demonstrations, and/or videotape reflecting realistic situations. The training should emphasize, among other things, techniques to avoid the use of force when possible, the importance of using time and distance to de-escalate, the general prohibition against headshots, the utilization of control techniques designed to minimize injuries to inmates and staff, the need to cooperate with use of force investigations, and the array of disciplinary actions that will be taken for violations of use of force policies and procedures.
2. Develop a remedial training program specifically designed for officers found to have violated use of force policies and procedures. This program shall be separate and different from the general in-service use of force training program, and shall focus in large part on the more frequent types of use of force violations.
3. Develop a more comprehensive and effective competency-based training program on conflict resolution and crises intervention skills for frontline officers and first line supervisors. The training should be realistic, corrections-specific, and skill-based.
4. Revise the recently implemented adolescent training program so that it focuses less on theoretical principles and more on techniques to manage the challenging adolescent behaviors that staff routinely encounter. Require all staff assigned to adolescent facilities to successfully complete this training.
5. Develop stand-alone required training on the importance of submitting prompt, complete, and accurate use of force reports, and the serious potential consequences (including criminal consequences) for falsifying use of force reports and/or failing to report a use of force, including as a witness. The training should be offered at the Academy for new recruits, and refresher courses should be required annually. Some version of this training should also be required for all non-DOC staff who work on Rikers Island.
6. Develop and implement an effective and comprehensive competency-based training program for all staff responsible for reviewing or investigating use of force incidents (e.g., ID staff, Wardens, Assistant Deputy Wardens, Captains, Tour Commanders) that covers investigation methods and skills, including conducting effective witness and victim interviews, reviewing video surveillance for consistency with policy requirements and inmate statements, and identifying and resolving areas of discrepancy.
7. Ensure that staff are adequately trained on how to interact and manage adolescents with mental illnesses and/or suicidal tendencies.H. Accountability
1. Ensure that staff are subject to appropriate and meaningful discipline for any violation of use of force policies and procedures, including but not limited to: (a) using unnecessary or excessive force; (b) failing to submit prompt, complete, and accurate use of force reports; (c) encouraging, pressuring, or coercing inmates or DOC and non-DOC staff members not to report uses of force; and (d) failing to intervene as soon as practical when inmate-on-inmate violence occurs.
2. Develop categories of officer misconduct that warrant termination, including but not limited to: (a) hitting an inmate who is in restraints; (b) kicking an inmate who is on the ground; (c) striking an inmate in the head except in situations where an officer or some other individual is at imminent risk of serious bodily injury and no more reasonable method of control may be used to avoid such injury; (d) providing an intentionally false use of force report or interview; and (e) intentionally failing to report staff use of force resulting in serious bodily injury.
3. In the event that a staff member is found to have utilized excessive or unnecessary force or otherwise violated the Department’s use of force policies, assess the fitness of the staff member for continued assignment to an adolescent housing area.
4. Develop and implement a formalized progressive disciplinary process for violations of use of force policies and procedures.
5. Develop and implement an early warning system (“EWS”) designed to effectively identify potentially problematic staff as early as possible.
a. The EWS should track the frequency with which staff are involved in uses of force, are the subject of a complaint or grievance, engage in unprofessional conduct, are subject to disciplinary action, and are involved in other incidents that may serve as predictors of future misconduct. The EWS should be triggered when officers reach a threshold developed and determined by the Department.
b. Staff identified by the EWS should be subject to an appropriate corrective action plan (at least one year in duration), and should be deemed ineligible for promotion or special assignments, including the probe or cell extraction teams, until the corrective action plan has been successfully completed. The corrective action plan shall not substitute for, or mitigate, administrative disciplinary action in any incident.
6. Require that a supervisor above the rank of Captain interview any staff member who: (a) utilizes a headshot; (b) uses restraints or escort techniques that result in an inmate injury; or (c) strikes an inmate without first applying OC spray. The interviewer should document the interview and attempt to ascertain whether the conduct violated Department policy and procedures.
7. Ensure that ID staff and other staff responsible for investigating the use of force are appropriately disciplined for any failure to conduct a thorough, timely, and unbiased investigation.
8. Ensure that DOC supervisors and managers are held accountable for the performance of their subordinates, including by being subject to appropriate disciplinary measures when staff under their supervision improperly use force or fail to adequately report the use of force.
9. Develop a strategic plan to create and maintain a culture of accountability at all levels of the Department.I. Inmate Discipline
1. Develop and implement an adequate continuum of alternative disciplinary sanctions for rule violations that do not involve lengthy isolation, as well as systems to reward and incentivize good behavior.
2. Develop and implement an alternative housing strategy for chronically disruptive adolescents that does not deny them the programming and privileges afforded to the general population and does not compromise the safety of other inmates or staff.
3. Prohibit placing adolescents with mental health disorders in solitary confinement for punitive purposes. Ensure that a mental health care professional is consulted prior to the imposition of any disciplinary sanction on adolescents with mental health disorders.
4. Establish an appropriate therapeutic secure setting to house adolescents with serious mental illnesses who commit infractions, which should be staffed by well-trained and qualified personnel and operated jointly by DOC and DOHMH.
5. To the extent any adolescents without mental health disorders are placed in punitive segregation, monitor their medical and mental health status on a daily basis to ensure that their health is not deteriorating.
6. Ensure that the conditions of the housing areas for infracted inmates, including individual cells, are sanitary, safe, adequately ventilated, and properly maintained.
7. Retain an outside consultant to conduct an independent review of Department infraction processes and procedures to ensure that: (a) they are fair and reasonable; (b) inmates are afforded due process; and (c) infractions are imposed on adolescents only where there is sufficient evidence of a rule violation. The consultant should document the results of the review and make any appropriate recommendations, which DOC should implement.J. Management and Leadership
1. Develop and implement a comprehensive strategic plan for altering the institutional culture to one that does not tolerate violence, and holds staff accountable for using excessive or unnecessary force.
2. Enhance management continuity at adolescent housing facilities, and limit, to the extent possible, the rate of turnover among Wardens and Deputy Wardens.
3. Develop and implement procedures to identify systemic patterns associated with uses of force and inmate-on-inmate fights and assaults, and take appropriate steps to address these patterns.
4. Require DOC’s top operational administrators to conduct periodic unannounced tours (including evening and weekend tours) of adolescent housing areas.
We hope to continue working with the Department in an amicable and cooperative fashion to address our outstanding concerns, and to develop specific policies and procedures that will implement the remedial measures discussed above. We are obligated to advise you that, in the event that we are unable to reach a resolution regarding our concerns, the Attorney General may initiate a lawsuit pursuant to CRIPA to correct deficiencies of the kind identified in this letter 49 days after appropriate officials have been notified of them. See 42 U.S.C. § 1997b(a)(1). We would prefer, however, to resolve this matter by working cooperatively with you and are hopeful that we will be able to do so in this case. We will be contacting you to discuss this matter in further detail.
Finally, please note that this findings letter is a public document. It will be posted on the website of the Civil Rights Division of the United States Department of Justice. We will also provide a copy of this letter to any individual or entity upon request.
Acting Assistant Attorney General, Civil Rights Division
United States Attorney for the Southern District of New York
By: Jeffrey K. Powell Assistant United States Attorney
By: Emily E. Daughtry Assistant United States Attorney