Now Hiring: The receivership search begins after federal judge greenlights takeover

Interested in running the city’s jail system? Do you have excellent communication and demonstrative collaborative skills — along with substantial correctional and leadership experience outside of the New York Department of Corrections (DOC)? If so, you can apply for the Nunez Remediation Manager role by sending a cover letter, resume, and three references to nunezremediationmanagerapps@nysd.uscourts.gov.

The fancy title ostensibly refers to the independent receiver assigned to oversee Rikers Island facilities and other local jails after Chief U.S. District Judge Laura Swain ordered the long-deliberated federal takeover last Tuesday, May 13. At least four candidates need to be “confidently” presented to the court by Aug. 29.

“The nearly decade-long record in this case, amassed since the Consent Judgment went into effect, establishes that less extreme remediation measures have failed,” wrote Swain in her 77-page opinion. “Defendants have demonstrated — in virtually every core area the Court and the Monitor have identified as related to the persistence of excessive and unnecessary force — that neither court orders nor the Monitor’s interventions are sufficient to push the DOC toward compliance.”

Receivership — the last ditch effort of placing an institution under a custodian — seemed inevitable since last November, when Swain held the city in contempt for repeated noncompliance with court-mandated reforms from the Nunez class-action settlement alleging unconstitutional and excessive use of force on Rikers Island by staff. Other remedies like levying financial penalties and jailing responsible officials were mentioned but not seriously considered.

Through the receivership order, the city will transfer power over local jails to a third-party expert appointed by the federal courts. The receiver would return control over the facilities once compliance is met.

A spokesperson for Mayor Eric Adams directed to comments he made during a May 13 media roundtable. He argued the poor conditions on Rikers date back long before he entered office and pointed to reductions in slashings and staff sick-outs. However, 38 people died in or shortly after DOC custody under the Adams administration. Almost all were housed on Rikers Island.

“So we’re just going to follow the rules to improve the conditions of Rikers,” said Adams. “I’ve been on Rikers Island more than any man in the history of this city, speaking to correction officers and inmates. And we’ve done more to stop the river that feeds Rikers Island. We’ve done that. And so it’s up to the — that’s outside my span of control. I’m going to follow whatever rules she puts in place because she has the authority to do so.”

Debra Greenberger, a partner at class counsel Emery Celli Brinckerhoff Abady Ward & Maazel LLP, said the details remain in the works between the plaintiffs and the city. She is one of the lawyers representing all present and future individuals incarcerated by the DOC for injunctive and declaratory relief in the lawsuit (although some named plaintiffs also sued for monetary damages).

“The point of all of these changes was to fix the problem,” said Greenberger over the phone. “And the city also agreed that there would be an independent monitor who would look at and evaluate whether the city was complying with the provisions of the order. What happened over the life of this consent judgment is that the monitor, time and again, would say the city is not complying with what they agreed to do. Even when there [were] moments of progress, there would then be backsliding.

“On multiple occasions through the course of this agreement, the court entered into other agreements, second agreements [and] action plans — all different ways to get to a world where the city actually makes the jail safe for people in custody. It continued not to work.”

Nine years of Nunez

Nunez was the sixth class-action lawsuit “challenging a pattern and practice of excessive and unnecessary force in New York City’s jails.” A concurrent U.S. Attorney’s Office investigation found constitutional violations specifically against male teenagers in custody predating Raise the Age laws.

Court-ordered reforms sprung from the settlement in fall 2015 through 25 sections and “hundreds of provisions” for the DOC to implement. Additionally, a monitor was federally appointed to document progress.

Year after year, the city fell short on the required reforms, and the action plan was later enacted in 2022. The monitoring team believed DOC did not lack “the authority and the ability to address” the dangerous jail conditions and pointed to the department’s “foundational patterns and practices” hampering compliance with the court’s orders.

This October marks a decade since Nunez was settled. The most recent monitor’s report, filed just last week, detailed “little progress in reducing the frequency with which staff use force to respond to the behaviors of people in custody” and pointed to greater use of force rates in 2024 than when the litigation began. However, they noted improvements in decreasing the “most egregious incidents.”

“Courts, just as a general matter, don’t want these sorts of cases,” said Brennan Center for Justice senior fellow Hernandez Stroud. “They do not see themselves as administrators of jails and prisons, and it is only when there is neglect by a political government that courts feel duty-bound after years and years of giving the government opportunities, do they ever feel compelled to get involved.”

“There is immense judicial reluctance, and these are just not the cases that judges are hunting for … we live in a democracy. Courts really are there to decide questions [like] ‘is this constitutional?’ The court doesn’t want to go any further than necessary, because it’s not accountable politically. People haven’t voted Judge Swain [into] office, but on the other side of that is the Constitution, the rights of incarcerated people, and the rule of law.”

Receivership’s royal history

Long before receivers oversaw the jails between the Bronx and Queens, they managed the affairs of kings. The concept dates back to English history, according to Stroud.

“Receivership actually emerged in England centuries ago as a way to protect real property,” he said. “When a king would die without a son, the court stepped in to appoint a temporary person to essentially manage the castle. This concept was exported to the United States in the late 1800s [to] early 1900s. [More than a quarter] of the nation’s railroad trackage was under receivership because [the corporations whose] job it was to run the railroads were doing it for their own benefit, not for that of the shippers and stakeholders.”

“The hope was that the courts could appoint someone who could reorganize them, and turn them back over to the owners [to run consistently with the law].”

Courts began employing receivership toward public matters following the Brown v. Board of Education decision declaring the “separate but equal” doctrine unconstitutional. Judges began mandating desegregation in noncompliant public schools during the racist southern backlash against integration, after a decade of voluntary compliance with Brown produced virtually no change in school competition. Receivership over prisons and jails starting in the 1970s grew out of those rulings, said Stroud.

Swain’s decision marks just the 14th time a judge placed a correctional facility or system under receivership. Recent examples include the Miami-Dade County jail and medical care in California’s prisons.

Ask and you shall receive

To be clear, the Trump administration will not play a direct role in the city’s receivership. The Nunez Remediation Manager “will be appointed by and answerable only to the Court” under Swain, who was handpicked by democratic former president Bill Clinton and boasts a lifetime tenure as a federal judge.

In fact, a receiver’s role is directly tied to independence. Receiverships often need to make politically-unpopular decisions to eliminate constitutional violations and need to ensure their implemented reforms are sustainable once they abdicate control.

DOC commissioner Lynelle Maginley-Liddie will be retained and work alongside the receiver, which Stroud said is unprecedented. While some other correctional heads previously remained in their roles under receivership, the constitutional reforms were more narrowly tailored compared to the broad takeover of New York’s city jail system.

Maginley-Liddie, the department’s first Black woman commissioner, drew praise from the monitoring team in Nunez reports. The city previously proposed to install her as a “compliance director,” basically allowing her to answer to the city and judge alike.

“We did not think this dual hat system made any sense or would lead to, what the court has called, ‘the transformational change’ that’s necessary,” said Greenberger. “We said that what we need is an independent receiver. And then what happened this week is that the Court said we need an independent receiver, a dual hat approach that the city is proposing is not something she was going to adopt.”

Receivers overseeing jails or prisons do not necessarily need a correctional background. For example, a judge appointed then-incoming Alabama Gov. Forrest James Jr. to oversee the state’s prison system in the late 1970s.

Several prominent names showed interest in the role earlier this year, including renowned civil rights attorney Norman Siegel. He told the Amsterdam News “it would be an honor” and hopes to address the Sixth Amendment’s right to a speedy trial through the receivership, given most of Rikers Island’s population is held on pretrial detention and are innocent before proven guilty.

“There’s something wrong with the system there that adds to tension between the staff and the detainees, and the detainees among themselves,” said Siegel. “And I don’t think you can minimize that overriding factor.”

Receivership’s limited scope

With the receivership’s independence comes limitations on involvement with other existing reforms. The Prison Litigation Reform Act (PLRA) signed into law by Pres. Clinton in 1996 famously limited incarcerated individuals’ ability to sue in federal court. But the legislation also curbs a federal judge’s ability to interject in prison and jail operations.

“That law says essentially that when crafting something like a receivership, you have to do it in the most narrow way possible,” said Stroud. “Laser-focused on the remediation of the constitutional violations, and you can go no further than that. There’s a whole lot conceivably that the court could pursue in terms of improvements and changes … but the court really is bound by the PLRA and judicial precedents that say you can only focus on eliminating the constitutional violations and nothing more.”

The city’s borough-based jail plan mandates Rikers Island’s closure by 2027. Four facilities based near the city’s municipal criminal courts and designed to mitigate custody conditions would then hold the remaining people in detention. However, construction is significantly behind schedule, with some slated to open past 2030.

Due to PLRA, the Nunez Remediation Manager cannot directly address political measures like Rikers’ closure. But the receivership can unofficially further the city’s plan if they align with eliminating constitutional violations

For example, the Adams administration long blamed Rikers’ high population count for stymieing the closure plan as the new facilities can only house around 4,000 people. The receiver could push for decarceration if overcrowding contributed to unconstitutional conditions.

“We’re gonna continue to do the advocacy and organizing around those issues that we’ve been pushing the city to implement the law, and that’s around decarceration,” said Freedom Agenda co-founder Darren Mack, a major advocate for Rikers’ closure. “We’ve seen the monitor agree that we need to reduce the population … regardless if there’s a receiver or not, our work is going to continue to push the city to seek to implement the [borough-based jail] plan.”

The tug-of-war between Adams and the city council also includes solitary confinement-related practices and U.S. Immigration and Customs Enforcement (ICE) presence on Rikers Island. In fact, the mayor recently blamed local laws passed by the council for the receivership order. He pointed to the borough-based jail plan for preventing capital improvements on Rikers Island.

Adams also said he hoped Swain would look at “laws that state that we can’t handcuff dangerous inmates when we’re transporting them.” The federal monitor’s report on Local Law 42 of 2024, the solitary confinement-related ban the mayor is likely referring to, pondered whether some of the provisions would undermine Nunez reforms.

Tandy Lau is a Report for America corps member who writes about public safety for the Amsterdam News. Your donation to match our RFA grant helps keep him writing stories like this one; please consider making a tax-deductible gift of any amount today by visiting https://bit.ly/amnews1.

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