The court’s imperative at this week’s hearing
Tomorrow, in federal courts in both Miami and New York, Americans will be able to see for themselves how the rule of law is kept alive. Of course, the Miami proceeding will be to arraign a former president of the United States on charges that underscore his contempt for any supervising authority. The New York proceeding has flown under the radar, in part, because it is about the city’s jails, a society closed to the outside world, and in part because, despite the escalating evidence of rampant violence and mismanagement, the crises have not broken the surface of the city’s conscience.
On Tuesday morning, however, the City’s adherence to the rule of law will be tested. Eight years of laboring under a federal consent decree aimed at abating the “culture of violence” that has defined the jails has resulted only in
In the Special Report on the May deaths and injuries, the monitor describes how the Department of Correction not only failed to advise him of the events but obdurately insisted that it had no obligation to do so. The hiding of the ball raises another question: If this record of destruction and mayhem — covering four jails, each with a separate staff of employees — was not reported by the jails’ administration, not because of negligence but because of intention, what else has gone unreported? Were there more than the three deaths reported this year? More assaults and injuries?
For all the monitor’s knowledge and skill, the “monitoring” of the situation is unequal to the problems if the City — the prime mover — cannot, and now, apparently, will not act. A federal receiver has different powers from a monitor, powers that are negotiated by the parties to the consent decree and ultimately decided upon and ordered by the court. But at its core, a receiver stands in the shoes of a mayor, with executive powers over the department, and the authority to change agreements (for example, collective bargaining agreements) and regulations (for example, procurement rules).
These are mighty powers, reserved for that last resort — a place that we have now reached. To order the appointment of a receiver, the court must find some combination of grave and immediate threat of harm to the plaintiffs, the failure of less extreme measures, the limited utility of continuing to insist on compliance with current orders and the lack of effective leadership.
At a moment so devoid of sunlight, the city and democracy would be well-served, were the court to grant the plaintiffs their oft-proffered request to file a motion requesting a receiver.
Oh yes, bad faith is also on that list. While it is a balancing test, meaning the court must not find every element in equal degree, the nine days at Rikers and all that has preceded and succeeded them, provide firm support for a finding of bad faith as well. When in an unguarded moment, the commissioner urges that an incarcerated person close to death be compassionately released to get him “off the count,” so that the death will not appear in the public tally of the dead, the balance tips to bad faith. When the commissioner in an apparently uncounseled letter, not only thumbs his nose at the monitor’s authority by insisting the City is not required to report deaths, but also urges that the monitor deep-six the apparently inconvenient evidence of ineptitude, malice and worse, lest it “fuel the flames of those who believe we cannot govern ourselves,” the evidence of bad faith mounts.
We are at a turning point. At a moment so devoid of sunlight, the city and democracy would be well-served were the court to grant the plaintiffs their oft-proffered request to file a motion requesting a receiver. The filing of the motion does not end the question. After all, the City will respond with its motion and the court will need to consider all the facts and arguments.
Thus far, the department has exercised a monopoly on the information that feeds the monitor and the court and thus the public. In a democracy, monopolies on information do not have much to recommend them. But when they are corrupted, as this one is, then opening up the sources of information could provide the court and the public with much-needed information about the advantages and disadvantages of a different, and, we wager, better way to be governed.
