Fordham Urban Law Journal
Volume 47

Number 5

Article 4

2020

Officer Use of Force and the Failure of Oversight of New York City
Jails
Jennifer Ferentz

Follow this and additional works at: https://ir.lawnet.fordham.edu/ulj

Recommended Citation
Jennifer Ferentz, Officer Use of Force and the Failure of Oversight of New York City Jails, 47 Fordham Urb.
L.J. 1393 (2020).
Available at: https://ir.lawnet.fordham.edu/ulj/vol47/iss5/4

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tmelnick@law.fordham.edu.

OFFICER USE OF FORCE AND THE FAILURE OF
OVERSIGHT OF NEW YORK CITY JAILS
Jennifer Ferentz*
Introduction ............................................................................1394
I. Excessive Use of Force as an Intractable Problem .................1397
A. Jails and a History of Violence...................................1397
B. Judicial Intervention and Federal Monitorship ..........1402
C. Nunez v. City of New York and the Nunez Federal
Monitorship.............................................................1405
II. Mapping the New York City Jail System .............................1407
A. The Department of Correction ...................................1408
B. New York City Government Oversight Agencies and
Officials ...................................................................1411
i. Board of Correction ..............................................1411
ii. Office of the Mayor ..............................................1413
iii. New York City Council .......................................1415
iv. Office of Administrative Trials and Hearings ......1417
v. Department of Investigation ...............................1418
vi. Bronx District Attorney’s Office .........................1419
C. New York State Oversight .........................................1420
i. The State Commission of Correction .....................1420
III. Oversight’s Abdication of Responsibility ...........................1422
A. “The System Is Overwhelmed” ..................................1422
B. No Minimum Standards .............................................1424
C. Oversight’s Silence on the Use of Force ......................1426
i. The Mayor and the Mayor’s Office of Criminal
Justice ...............................................................1426
ii. New York City Council ........................................1428

* I would like to thank the Fordham Urban Law Journal's editors and staff for their help
through the writing process. Thank you also to Professor Nestor Davidson for his direction
and encouragement, to Professor Aaron Saiger for his guidance, to Dean Diller for his
mentorship, and to those who gave me such thoughtful feedback, including Bennett Stein.
And of course to my family and friends: I could not have done this without your endless
support.

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[Vol. XLVII

iii. Department of Investigation and District
Attorneys ...........................................................1429
D. New York State Would Rather Play Politics .............1429
E. Yet Another Oversight Hurdle: Office of Administrative
Trials and Hearings’ Precedent ................................1431
IV. Steps to Strengthen Oversight ............................................1431
A. Board of Correction: Promulgate Minimum Standards,
Make Funding Independent, Diversify Composition, and
Broaden Enforcement Authority .............................1432
B. Oversight Actors Should Be Connected ......................1434
C. Move All Use of Force Investigations to Department of
Investigation and Address Problematic Office of
Administrative Trials and Hearings’ Precedent ........1435
Conclusion................................................................................1436
INTRODUCTION
Violence runs through the entirety of the U.S. criminal justice system,
and it is a part of daily life in prisons and jails. Two underlying reasons
for this violence are that the modern U.S. carceral state is characterized
by a “tough on crime” approach that prioritizes punishment over
rehabilitation,1 and that it is built on the legacy of slavery and racism.2
In prisons and jails,3 it is an accepted fact that correction officers will use

1. See Michael Jacobson et al., Beyond the Island: Changing the Culture of New York
City Jails, 45 FORDHAM URB. L.J. 373, 407–08 (2018).
2. See Race and the Criminal Justice System, EQUAL JUST. INITIATIVE (Oct. 1, 2014),
https://eji.org/news/history-racial-injustice-race-and-criminal-justice/
[https://perma.cc/A3D8-V7PY]; see also Morris E. Lasker, Prison Reform Revisited: A
Judge’s Perspective, 24 PACE L. REV. 427, 430–31 (2004).
3. Prisons are facilities that house people convicted of felonies who must serve more
than one year and are usually run by the state or federal government. See Ellen Belcher,
New York Prisons and Jails: Historical Research, JOHN JAY COLL. CRIM. JUST., LLOYD
SEALY
LIBR.
(Aug.
3,
2020),
https://guides.lib.jjay.cuny.edu/NYPrisons
[https://perma.cc/9NXY-EUHH]. Jails are facilities that house pre-trial detainees — as
well as people sentenced to under one year, waiting to be transferred to a prison, or being
held on parole violations — and are usually run at the city or county level. See id. New
York City jails also hold a large number of people for parole violations only. See
Christopher Robbins, More and More People Winding up in NYC Jails for Technical Parole
Violations,
GOTHAMIST
(Aug.
27,
2019,
5:02
PM),
https://gothamist.com/news/more-and-more-people-winding-nyc-jails-technical-parole-vi
olations [https://perma.cc/W4M7-HY49]. The long-term effects of prisons and jails also
vary widely. For example, in prison, long-term illness is the primary cause of death
(88.3%); in contrast, in jail, 30.7% of deaths are by suicide. Compare E. ANN CARSON &
MARY P. COWHIG, U.S. DEP’T OF JUST., OFF. OF JUST. PROGRAMS, MORTALITY IN STATE

2020] OFFICER USE OF FORCE AND THE FAILURE OF OVERSIGHT 1395
some measure of physical force to control incarcerated people.4 Thus
jurisdictions have different rules or policies that outline the bounds of
what, when, and how much force is appropriate to use in various
circumstances.5 However, our country is currently reckoning with the
very idea of uniformed force;6 collectively, more people are beginning to
understand that this force is synonymous with violence7 and that this
violence is racialized.8
U.S. prisons and jails are a “massive social institution plagued by
problems,” and these problems are exacerbated “by the vacuum that

AND
FEDERAL
PRISONS,
2001–2016
—
STATISTICAL
TABLES
(2020),
https://www.bjs.gov/content/pub/pdf/msfp0116st.pdf [https://perma.cc/Z7WX-8SFZ],
with E. ANN CARSON & MARY P. COWHIG, U.S. DEP’T OF JUST., OFF. OF JUST. PROGRAMS,
MORTALITY IN LOCAL JAILS, 2001–2016 — STATISTICAL TABLES (2020),
https://www.bjs.gov/content/pub/pdf/mlj0016st.pdf [https://perma.cc/Z57J-KTBK].
4. See John Boston, Excessive Force and New York City Jails: Litigation and Its
Lessons, 22 WASH. U. J.L. & POL’Y 155, 167 (2006) (stating “the use of force can never be
eliminated entirely, but prisons and jails can be managed with a minimal amount of
physical force”).
5. See, e.g., N.Y.C. DEP’T OF CORR., DIRECTIVE NO. 5006R-D: USE OF FORCE (2017),
https://www1.nyc.gov/assets/doc/downloads/directives/Directive_5006R-D_Final.pdf
[https://perma.cc/H2NM-54FD] (stating the “Use of Force is any instance where Staff use
their hands or other parts of their body, objects, instruments, chemical agents, electronic
devices, firearms, or any other physical method to restrain, subdue, or compel an Inmate
to act or stop acting in a particular way. The term ‘Use of Force’ does not include moving,
escorting, transporting, or applying restraints to a compliant Inmate”). The U.S.
Constitution also sets boundaries for the amount and type of force officers may use in the
corrections setting; however, this standard “[grants] wide latitude to . . . officers,” as a
finding of malicious or sadistic intent is needed to violate the Eighth Amendment’s
prohibition on cruel and unusual punishment. Boston, supra note 4, at 160.
6. See Derrick Johnson, The George Floyd Uprising Has Brought Us Hope. Now We
Must Turn Protest to Policy, GUARDIAN (June 30, 2020, 6:27 AM),
https://www.theguardian.com/commentisfree/2020/jun/30/black-lives-matter-protests-vo
ting-policy-change [https://perma.cc/DD7S-MYLY].
7. See, e.g., Catherine E. Shoichet, Protests Are Erupting over Police Brutality. And
Some Officers Are Responding to the Outcry with Force, CNN (June 5, 2020, 1:18 PM),
https://www.cnn.com/2020/06/02/us/police-protests-use-of-force/index.html
[https://perma.cc/2PE8-PB82].
8. See Bryan Stevenson, Slavery Gave America a Fear of Black People and a Taste for
Violent Punishment. Both Still Define Our Criminal Justice System, N.Y. TIMES MAG. (Aug.
14,
2019),
https://www.nytimes.com/interactive/2019/08/14/magazine/prison-industrial-complex-sl
avery-racism.html [https://perma.cc/DYU5-EAKA]; see also VERA INST. OF JUST.,
INCARCERATION
TRENDS
IN
NEW
YORK
(2019),
https://www.vera.org/downloads/pdfdownloads/state-incarceration-trends-new-york.pdf
[https://perma.cc/T866-JCY2] (establishing that despite making up only 19% of the New
York State population, Black people make up 43% of people in jail and 48% of people in
prison).

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exists when it comes to meaningful oversight and public accountability.”9
And this vacuum exists here in New York City. This Note asks the reader
to consider: what is the point of government oversight if one of the most
pressing issues incarcerated people face today — the intractable problem
of unnecessary and excessive officer use of force — goes ignored by such
oversight? This Note examines the larger structure of oversight of New
York City jails10 to try to understand how the use of force rate continues
to increase despite ongoing federal Monitorship, and the Department of
Correction’s alleged commitment to change. Ultimately, this Note argues
the actors responsible for changing the rules governing New York City
jails and the practices carried out within them are abdicating that
responsibility when it comes to this violence.
Part I traces the history of brutality in New York City jails and focuses
on the work of prisoners’ rights advocates and judicial intervention on
this issue, which culminated in the lawsuit Nunez v. City of New York.11
Part II then seeks to identify and document the institutional actors’ legal
authority that play a role in the functioning and oversight of New York
City jails, focusing on how these entities can impact excessive use of force.
Part III examines both the current state of correction officer use of force
in City jails and oversight actors’ reaction to this issue within the past few
years. This Part demonstrates both how the Department of Correction
(DOC) is ill-equipped to change, and how oversight bodies with legal
authority to make a difference have remained mostly silent. Finally, Part

9. Michele Deitch & Michael B. Mushlin, Let the Sunshine In: The ABA and Prison
Oversight, STATE OF CRIM. JUST. 243, 244 (2011).
10. This Note does not include jails that hold people in federal pre-trial detention or
custody. The facilities this Note refers to as “New York City jails” are Brooklyn Detention
Complex (closed in January 2020), Manhattan Detention Complex, Vernon C. Bail
Correctional Center, and facilities on Rikers Island (Anna M. Cross Center, Eric M. Taylor
Center, George Motchan Detention Center, George R. Vierno Center, North Infirmary
Command, Otis Bantum Correctional Center, Robert N. Davoren Complex, Rose M.
Singer Center, and West Facility). This understanding excludes Bellevue Hospital Prison
Ward and Elmhurst Hospital Prison Ward, which are under the shared jurisdiction of the
Department of Correction and NYC Health and Hospitals Corporation, and come with
their own set of challenges like unique barriers to access compassionate healthcare. The
Manhattan Detention Complex is colloquially known as “the Tombs,” and Vernon C. Bail
Correction Center is known as “the Boat.” See Kim Kelly, At the Center of the Coronavirus
Pandemic, People Inside NYC Jails Describe Fear, Confusion and a Lack of Supplies,
APPEAL (Apr. 8, 2020), https://theappeal.org/new-york-city-jails-coronavirus-covid-19/
[https://perma.cc/3G37-LSMP].
11. See Complaint, Nunez v. City of New York (S.D.N.Y. 2012) (No. 11 Civ. 5845)
[hereinafter
Nunez
Complaint],
https://www.legalaidnyc.org/wp-content/uploads/2019/09/Nunez-Complaint.pdf
[https://perma.cc/JU24-DXTK].

2020] OFFICER USE OF FORCE AND THE FAILURE OF OVERSIGHT 1397
IV recommends several policy changes to strengthen oversight over New
York City jails, and tackle the central and ubiquitous problem of
excessive use of force.
I. EXCESSIVE USE OF FORCE AS AN INTRACTABLE PROBLEM
Section I.A traces the entrenched history of violence in New York City
jails, with a particular emphasis on Rikers Island. Section I.B then
outlines the efforts of prisoners’ rights advocates to ensure the safety and
well-being of incarcerated people through judicial intervention and
Monitorship. Finally, Section I.C focuses on the lawsuit Nunez v. City of
New York,12 the ongoing reports the Nunez Federal Monitor publishes,
and the current status of New York City jails, including the continued
prevalence of correction officers’ unnecessary and excessive use of force.
A. Jails and a History of Violence
New York City jails, in particular Rikers Island, have always been
notorious for violence.13 Although gang-related conflict in jail is
prevalent,14 brutality carried out by correction officers in City jails is also
an intrinsic part of this violence.15 Correction officers have dragged an
inmate by the neck, handcuffed, and punched the inmate in the face;16 in
a gang of three, kicked and punched a man in the stomach;17 beaten
inmates after forcing them to strip naked;18 forced inmates to eat
cigarettes and flushed their heads in toilets;19 kept a man in a cell with no
running water for two days, and then hit him in the face when he asked

12. Id.
13. See Jacobson et al., supra note 1, at 381 (citing U.S. DEP’T OF JUST., U.S. ATT’Y’S
OFF. FOR THE S. DIST. OF N.Y., CRIPA INVESTIGATION OF THE NEW YORK CITY
DEPARTMENT OF CORRECTION JAILS ON RIKERS ISLAND
3
(2014),
https://www.clearinghouse.net/chDocs/not_public/JC-NY-0062-0001.pdf
[https://perma.cc/Q4Q5-BW8B]).
14. See generally This Is Rikers: From the People Who Live and Work There, MARSHALL
PROJECT (June 28, 2015, 9:00 PM) [hereinafter MARSHALL PROJECT],
https://www.themarshallproject.org/2015/06/28/this-is-rikers
[https://perma.cc/H4J3-CUFG].
15. See Nunez Complaint, supra note 11, at 5.
16. See Fisher v. Koehler, 692 F. Supp. 1519, 1533 (S.D.N.Y. 1988) (discussing
plaintiff James Kenny).
17. See id. at 1534 (discussing plaintiff Keith Beattie).
18. See Stipulation of Settlement at 4, Sheppard v. Phoenix (S.D.N.Y. 1998) (No. 91
Civ. 4148).
19. See id. at 11.

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[Vol. XLVII

for water;20 and pepper-sprayed someone as he lay face down in the
shower after another officer hit him in the back of the head so hard he lost
consciousness.21 Formerly-incarcerated people have also spoken about
the horrors they experienced in these jails beyond this brutality, which
include no access to cold water or cold showers on scorching hot summer
days,22 mice and cockroach infestations in cells, and a lack of access to
necessary and life-saving medication.23 Since facilities were first built on
Rikers Island, DOC’s actions have prompted lawsuits that allege
organizational indifference to these problems and overwhelming
mismanagement.24
In 1884, New York City bought Rikers Island from the Riker family,
with plans to expand its size and build a prison facility to relieve the
overcrowding and squalid conditions present in the City’s two operating
jails.25 Opened in the 1930s, the Rikers Island Penitentiary was accessible
only by ferry, and the people incarcerated there lived next to garbage
dumped by the Department of Sanitation,26 despite the City’s intention
for it to be on the cutting edge of penitentiary design.27 By 1939, a Bronx

20. See Ingles v. City of New York, 2003 WL 402565, at *2 (S.D.N.Y. 2003) (discussing
plaintiff Ed Sykes).
21. See Nunez Complaint, supra note 11, at 42–45 (discussing Plaintiff Rodney Byre).
22. See Raven Rakia, A Sinking Jail: The Environmental Disaster That Is Rikers
(Mar.
15,
2016),
Island,
GRIST
https://grist.org/justice/a-sinking-jail-the-environmental-disaster-that-is-rikers-island/
[https://perma.cc/MJX3-NACS].
23. See MARSHALL PROJECT, supra note 14.
24. See Section I.C; see also Jarrod Shanahan, When Incarceration Kills, JACOBIN (Aug.
8,
2019),
https://jacobinmag.com/2019/08/life-and-death-in-rikers-island-review-book-prison-jail-h
omer-venters [https://perma.cc/BT9J-XD7U].
25. See John Surico, How Rikers Island Became the Most Notorious Jail in America,
(Jan.
11,
2016,
12:00
AM),
VICE
https://www.vice.com/en_us/article/dp59yq/how-rikers-island-became-the-most-notoriou
s-jail-in-america [https://perma.cc/7C9X-9GXM]. The patriarch of the family, Richard
Riker, used his position as a criminal court municipal officer to label free African
Americans as “fugitive slaves” to get kickbacks from kidnappers who sold them into
slavery. See id.
26. In 1938, the State Commission of Correction commented on the “anomalous
situation” of having a $10 million penitentiary located in the middle of a municipal dump.
See Riker’s Island Use as Dump Denounced, N.Y. TIMES (Nov. 27, 1938),
https://timesmachine.nytimes.com/timesmachine/1938/11/27/99570997.html?pageNumb
er=13.
27. See Jarrod Shanahan, Captives of a New Alcatraz: The New York City
Department of Correction from 1954 to 1990 (2019) (Ph.D. dissertation, City University
of New York) (on file with author); see also New Prison Ready on Riker’s Island, N.Y.
TIMES
(June
30,
1935),

2020] OFFICER USE OF FORCE AND THE FAILURE OF OVERSIGHT 1399
court deemed it to be “nearly unlivable.”28 Regardless, the City’s use of
Rikers Island kept growing, leveling out the garbage piles,29 and building
new facilities in the 1960s and 1970s.30 In 1974, in response to a class
action brought by the Legal Aid Society, a court ordered the temporary
shut-down of a jail near City Hall in Manhattan, known colloquially as
the Tombs, for its poor living conditions;31 after this, DOC started to
house increasingly more detainees on Rikers Island.32
The prevalence of drug use and an increased reliance on policing in the
1980s meant that Rikers Island housed an ever-ballooning population of
detainees; under Mayor Rudolph Giuliani, the Rikers population
skyrocketed in the early 1990s.33 For example, in 1991, around 22,000
people were held in DOC custody.34 To handle the overflow, DOC set up
tents and navy barges to house people35 — one of which, nicknamed the
Boat, still operates today.36 Although the New York City jail population
reached its peak around 30 years ago and crime rates have steadily fallen
since then, City jail facilities’ problematic conditions, prevalence of
violence, and correction staff’s persistent corruption have never gone
away.37

https://timesmachine.nytimes.com/timesmachine/1935/06/30/95507721.html?pageNumb
er=21.
28. Surico, supra note 25.
29. See Rakia, supra note 22.
30. See Surico, supra note 25.
31. See Jacobson et al., supra note 1, at 385–86.
32. See Janos Marton, #CloseRikers: The Campaign to Transform New York City’s
Criminal Justice System, 45 FORDHAM URB. L.J. 499, 510 (2018).
33. See Surico, supra note 25.
34. See Marton, supra note 32, at 520.
35. See id. at 512.
36. See Matthew Haag, A Floating Jail Was Supposed to Be Temporary. That Was 27
(Oct.
10,
2019),
Years
Ago.,
N.Y.
TIMES
https://www.nytimes.com/2019/10/10/nyregion/nyc-jail-barge-rikers.html
[https://perma.cc/5PGC-JYCW].
37. See, e.g., Press Release, U.S. Dep’t of Just., U.S. Att’y’s Off. for the E. Dist. of
N.Y., Six New York City Correction Officers and 15 Others Charged with Conspiring to
Accept Bribes and Smuggle Contraband into Rikers Island Facilities (Jan. 14, 2020),
https://www.justice.gov/usao-edny/pr/six-new-york-city-correction-officers-and-15-other
s-charged-conspiring-accept-bribes [https://perma.cc/JM49-68FY]; Brian Sonenstein,
New York City Inspectors Smuggle Contraband into Jail, Find Culture of Corruption Live
and
Well,
SHADOWPROOF
(Feb.
14,
2018),
https://shadowproof.com/2018/02/14/nyc-doc-contraband-inspectors-undercover-corrupti
on/ [https://perma.cc/ZR68-CZ79]; see also Surico, supra note 25 (discussing the
entrenched culture of misogyny, cruelty, and illegality in correction officers taking
foothold in the 1980s).

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After years of activism concentrated into the #CloseRikers
campaign,38 in conjunction with the momentum built by allegations of
pervasive brutality in the lawsuit Nunez v. the City of New York39 —
which was joined by the U.S. Attorney for the Southern District of New
York40 — Mayor Bill de Blasio announced that his Administration would
officially close Rikers Island.41 His Administration eventually laid out an
$8 billion plan42 to construct a “smaller network of modern jails” in four
boroughs.43 The New York City Council officially endorsed this plan in
October 2019 by voting to close Rikers Island by 2026.44 Ultimately, this
borough-based plan depends on shrinking the jail population
substantially to around 3,300 from approximately 7,000 in 2019.45 Bail

38. See generally Marton, supra note 32.
39. See discussion infra Section I.C.
40. See United States’ Proposed Complaint-in-Intervention, Nunez v. City of New
York (S.D.N.Y. 2014) (No. 11 Civ. 5845). The Southern District of New York intervened
in the underlying class action lawsuit after releasing a Civil Rights of Institutionalized
Persons Act (CRIPA) investigation report, which found that there was an
unconstitutional pattern and practice of violence on Rikers Island for incarcerated people
under the age of 18. See Press Release, U.S. Dep’t of Just., U.S. Att’y’s Off. for the S. Dist.
of N.Y., Department of Justice Takes Legal Action to Address Pattern and Practice of
Excessive Force and Violence at Rikers Island Jails That Violates the Constitutional
Rights
of
Young
Male
Inmates
(Dec.
18,
2014),
https://www.justice.gov/usao-sdny/pr/department-justice-takes-legal-action-address-pat
tern-and-practice-excessive-force-and [https://perma.cc/MC59-HAE7].
41. See Joel Rose, Rikers Island Could Be Closed and Replaced with Smaller Jails Around
(Mar.
31,
2017,
7:36
PM),
New
York
City,
NPR
https://www.npr.org/sections/thetwo-way/2017/03/31/522251063/rikers-island-could-be-c
losed-and-replaced-with-smaller-jails-around-new-york-ci
[https://perma.cc/XXM6-ZJDM].
42. See Matthew Haag, N.Y.C. Votes to Close Rikers. Now Comes the Hard Part., N.Y.
TIMES
(Oct.
17,
2019),
https://www.nytimes.com/2019/10/17/nyregion/rikers-island-closing-vote.html
[https://perma.cc/59VP-C2CC].
43. CITY OF N.Y., OFF. OF THE MAYOR, SMALLER SAFER FAIRER: A ROADMAP TO
CLOSING
RIKERS
ISLAND
7
(2017),
https://rikers.cityofnewyork.us/wp-content/uploads/Smaller-Safer-Fairer-1.pdf
[https://perma.cc/RAW7-X3LR].
44. See Rikers to Close, N.Y. CITY COUNCIL, https://council.nyc.gov/data/closerikers/
[https://perma.cc/5JG3-X9UD] (last visited Aug. 21, 2020). New York City Council’s vote
included a set of reforms to the Minimum Standards for the treatment of incarcerated
people and design outlines for any new jails built. See Ben Chapman, New York City
Council Proposes a Plan for Jails after Rikers, WALL ST. J. (Oct. 2, 2019, 6:37 PM),
https://www.wsj.com/articles/new-york-city-council-proposes-a-plan-for-jails-after-rikers
-11570055867.
45. See Bobby Cuza, City Hall: Jail Population Expected to Drop to 3,300 by 2026, NY1
(Oct.
14,
2019,
9:19
PM),
https://www.ny1.com/nyc/all-boroughs/politics/2019/10/15/nyc-jail-population-expectedto-drop-to-3300-by-2026-city-hall-says [https://perma.cc/SC9X-6EJ9].

2020] OFFICER USE OF FORCE AND THE FAILURE OF OVERSIGHT 1401
reform laws that prohibit the use of cash-bail for the majority of arrests
are critical to reducing the jail population; however, those that went into
effect on January 1, 2020 — which had the potential to impact
approximately 43% of all people held in pre-trial detention46 — were
amended by the state legislature only three months later.47 The
three-month impact of the original law led to a drop in pre-trial detainees
across New York State,48 and the effect of the revision may not actually
be that substantive.49 It is undeniable, though, that COVID-19 hit New
York City particularly hard in March and April of 2020, leading activists
and lawyers to demand the release of people in custody.50 Further, the
Board of Correction (BOC or the Board) urged the City to rapidly reduce
its jail population.51 Releasing certain categories of people did become
part of the City’s public health response to the pandemic, and as of April
2020, DOC reduced its jail population to just under 4,000 people.52

46. See MICHAEL REMPEL & KRYSTAL RODRIGUEZ, CTR. FOR CT. INNOVATION, BAIL
REFORM IN NEW YORK: LEGISLATIVE PROVISIONS AND IMPLICATIONS FOR NEW YORK
CITY
8
(2019),
https://www.courtinnovation.org/sites/default/files/media/document/2019/Bail_Reform_
NY_full_0.pdf [https://perma.cc/2HPT-V4EA].
47. See Taryn A. Merkl, New York’s Latest Bail Law Changes Explained, BRENNAN
CTR.
FOR
JUST.
(Apr.
16,
2020),
https://www.brennancenter.org/our-work/analysis-opinion/new-yorks-latest-bail-law-cha
nges-explained [https://perma.cc/X4F3-7Q3B].
48. See Jamiles Lartey, New York Rolled Back Bail Reform. What Will the Rest of the
PROJECT
(Apr.
23,
2020,
6:00
AM),
Country
Do?,
MARSHALL
https://www.themarshallproject.org/2020/04/23/in-new-york-s-bail-reform-backlash-a-ca
utionary-tale-for-other-states [https://perma.cc/BQA6-6YH3].
49. See Merkl, supra note 47. See generally MICHAEL REMPEL & KRYSTAL RODRIGUEZ,
CTR.
FOR
CT.
INNOVATION,
BAIL
REFORM
REVISITED
(2020),
https://www.courtinnovation.org/sites/default/files/media/document/2020/bail_reform_re
visited_05272020.pdf [https://perma.cc/6JN2-MAVX].
50. See Josiah Bates, Campaigns, Fundraisers Work to Bail New York City Inmates
Amid COVID-19 Outbreaks in Jails and Detention Centers, TIME (Apr. 17, 2020, 5:23 PM),
https://time.com/5821512/bail-campaigns-new-york-inmates-coronavirus/
[https://perma.cc/6WXN-2FKQ].
51. See Press Release, N.Y.C. Bd. of Corr., New York City Board of Correction Calls
for City to Begin Releasing People from Jail as Part of Public Health Response to
COVID-19
(Mar.
17,
2020),
https://www1.nyc.gov/assets/boc/downloads/pdf/News/covid-19/2020.03.17%20-%20Boa
rd%20of%20Correction%20Statement%20re%20Release.pdf
[https://perma.cc/XRC8-X3SS]; see also Letter from Jacqueline Sherman, Interim Chair,
N.Y.C. Bd. of Corr., to New York City’s Crim. Just. Leaders (Mar. 21, 2020),
https://www1.nyc.gov/assets/boc/downloads/pdf/News/covid-19/Letter-from-BOC-re-NY
C-Jails-and-COVID-19-2020-03-21.pdf [https://perma.cc/A3S6-2TL2].
52. Press Release, Off. of the Mayor, City Jail Population Drops Below 4,000 for First
Time
Since
1946
(Apr.
21,
2020),

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However, the overall effect of this historical moment on City jails — as
with all aspects of City life — remains uncertain.
B. Judicial Intervention and Federal Monitorship
The history of institutional reform litigation and the legacy of the
prisoners’ rights movement are key to understanding the modern
administration of jails and how the U.S. government has come to
institutionally recognize the fundamental rights of incarcerated people.
The era of this litigation began with Brown v. Board of Education, which
opened the federal courts to a new type of injunctive relief and civil rights
enforcement.53 In the 1970s, incarcerated people led wide-spread
uprisings, and the backlash in response rippled throughout the country.54
In 1974, the Supreme Court declared “[t]here is no iron curtain drawn
between the Constitution and the prisons of this country.”55 That same
year, in New York City, the District Court for the Southern District of
New York ordered the Tombs to be closed, ending a class action litigation
brought by the Legal Aid Society.56 Litigation in the 1980s then boomed,
brought by both prisoners’ rights lawyers and incarcerated people
themselves; by 1993, incarcerated people had filed 19% of the cases on the
federal docket.57
This momentum then faced two major hurdles. First, the Supreme
Court took a turn in its jurisprudence by “radically enlarging the scope of
deference accorded to prison administrators,” ultimately deeming “even
objectively brutal treatment” constitutional.58 Second, Congress and
https://www1.nyc.gov/office-of-the-mayor/news/278-20/city-jail-population-drops-below
-4-000-first-time-since-1946 [https://perma.cc/U9DN-FSQG].
53. See Margo Schlanger, Civil Rights Injunctions over Time: A Case Study of Jail and
Prison Court Orders, 81 N.Y.U. L. REV. 550, 552 (2006).
54. See Michael Mushlin & Naomi Roslyn Galtz, Getting Real About Race and Prisoner
Rights, 36 FORDHAM URB. L.J. 27, 32 (2009); see also Michael Avery, Book Review: Blood
in the Water: The Attica Prison Uprising of 1971 and Its Legacy, NAT’L LAWS.’S GUILD:
REV.,
https://www.nlg.org/nlg-review/article/book-review-blood-in-the-water-the-attica-prison
-uprising-of-1971-and-its-legacy/ [https://perma.cc/EDT3-ASKS] (last visited Sept. 17,
2020) (discussing the Attica uprising and the abject cruelty of the government’s response).
55. Deitch & Mushlin, supra note 9, at 243 (quoting Wolff v. McDonnell, 418 U.S. 539,
555–56 (1974)). Under traditional jurisprudence, incarcerated people were considered
“slaves of the state.” Mushlin & Galtz, supra note 54, at 32.
56. See Jacobson et al., supra note 1, at 385–86.
57. See Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555, 1558 (2003).
58. See Mushlin & Galtz, supra note 54, at 32; see also, e.g., Wilson v. Seiter, 501 U.S.
294, 302–03 (1991) (stating that for conditions of confinement within the carceral setting
to violate the Eighth Amendment’s prohibition on cruel and unusual punishment,
correction officers’ intention — not the conditions — are key. Officers must be deliberately

2020] OFFICER USE OF FORCE AND THE FAILURE OF OVERSIGHT 1403
President Bill Clinton passed the Prison Litigation Reform Act (PLRA),59
which severely restricted incarcerated people’s access to federal courts.60
The PLRA was designed “with the express purpose of reducing prison
litigation,” and created procedural hurdles.61 For example, the PLRA
contains a “three strikes” provision, which mandates that if an
incarcerated person sues and loses in three separate federal suits, he or she
is barred from bringing any suit in forma pauperis, even if an unsuccessful
lawsuit was the result of a failure to state a viable claim.62 Also, the
PLRA requires incarcerated people to exhaust all available
administrative remedies, like the jail’s grievance system,63 before seeking
redress in a court, no matter how opaque or dysfunctional the
administrative procedure may be.64 Finally, PLRA provisions that
“restrict the scope of consent decrees . . . and reduce the amount of
attorneys’ fees that may be recovered when prisoner plaintiffs prevail,”
along with the exhaustion requirement, make building class action
lawsuits monumentally harder.65 Still, prisoners’ rights litigation’s legacy
has ensured there are uniform standards for staff behavior and conditions
of confinement for incarcerated people.66
Litigation in New York City is a part of this history, and despite the
PLRA, four federally appointed Monitors remain active in overseeing
New York City jails.67 A Monitor is an independent person or
indifferent or wonton in their conduct); Turner v. Safley, 428 U.S. 78, 89 (1987) (holding
regulations that impinge on incarcerated people’s constitutional rights need only be
“reasonably related to legitimate penological interests”).
59. 42 U.S.C. § 1997.
60. See David M. Shapiro & Charles Hogle, The Horror Chamber: Unqualified Impunity
in Prison, 93 NOTRE DAME L. REV. 2021, 2048 (2018).
61. See Mushlin & Galtz, supra note 54, at 35.
62. See 28 U.S.C. § 1915(g). Being able to bring a suit in forma pauperis means a person
can submit an affidavit stating they are unable to pay court-related fees in lieu of payment
to the court. See 28 U.S.C. § 1915(a)(1).
63. See, e.g., N.Y.C. DEP’T OF CORR., DIRECTIVE NO. 3376R-A: INMATE GRIEVANCE
PROCEDURES
11–20
(2018),
https://www1.nyc.gov/assets/doc/downloads/directives/Directive_3376R-A.pdf
[https://perma.cc/FDY8-VSAL].
64. See Rachel Poser, Why It’s Nearly Impossible for Prisoners to Sue Prisons, NEW
YORKER
(May
30,
2016),
https://www.newyorker.com/news/news-desk/why-its-nearly-impossible-for-prisoners-tosue-prisons [https://perma.cc/5BZ3-CVQ2].
65. See Mushlin & Galtz, supra note 54, at 35.
66. See Malcolm M. Feeley & Van Swearingen, The Prison Conditions Cases and the
Bureaucratization of American Corrections: Influences, Impacts and Implications, 24 PACE
L. REV. 433, 442–43 (2004).
67. See Stephen Rex Brown & Reuven Blau, Decades of Federal Oversight of City
Correction Department Hasn’t Yet Fixed Myriad Jail Woes, DAILY NEWS (Dec. 16, 2018),

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organization that oversees the execution and compliance with a consent
judgment, or consent decree, which is a court-approved settlement signed
by all parties to a suit.68 As the DOC is the defendant organization in
lawsuits aimed at reforming City jails, Monitors actively engage with
DOC through investigation and on-the-ground support, and will regularly
make suggestions and publish reports to the court overseeing the
litigation.69 The longest Monitor over DOC, established under Benjamin
v. Fraser, has been active since 1982.70 Although the Consent Judgement
was scaled back in 2003, DOC must still comply with ventilation, lighting,
and temperature standards under the Benjamin Monitorship.71 Until
recently, a second Monitor kept track of DOC’s compliance with the
Consent Judgement under Handberry v. Thompson,72 which stemmed
from a class action filed in 1996 against the City, DOC, and the
Department of Education. A third Monitor oversees discharging
practices for people from jail with mental illnesses.73 Finally, the fourth
Monitorship, the Nunez Monitor, has been active since 2015 and addresses
the subject of officer use of force.74

https://www.nydailynews.com/new-york/ny-metro-jail-Monitors-20181213-story.html
[https://perma.cc/CR78-EXSE].
68. See Jim Wagstaffe, Enforcing Settlement and Consent Decrees, LEXISNEXIS (Sept.
12,
2018),
https://www.lexisnexis.com/lexis-practice-advisor/the-journal/b/lpa/posts/enforcing-settl
ements-and-consent-decrees [https://perma.cc/TU8M-8TVR]; Monitors Standards, AM.
BAR
ASS’N,
https://www.americanbar.org/groups/criminal_justice/standards/MonitorsStandards/
[https://perma.cc/H6BK-CP3U] (last visited Sept. 17, 2020).
69. See Loretta A. Johnson, Note, Protecting the Constitutional Rights of Minority
Youth on Rikers Island, 6 COLUM. J. RACE & L. 48, 60 (2016).
70. 343 F.3d 35, 40 (2d Cir. 2003). The plaintiffs, represented by the Legal Aid Society,
sued the City of New York and New York City jail officials in seven related class action
lawsuits alleging unconstitutional confinement conditions.
71. See id. at 52.
72. 446 F.3d 335 (2d Cir. 2006); see also Handberry v. Thompson, 2016 WL 1268265
(S.D.N.Y. Mar. 31, 2016). This agreement ensures individuals have access to educational
opportunities during their incarceration. See Derek Gilna, Court Issues New Injunction
Mandating Education for NYC Prisoners at Rikers Island, PRISON LEGAL NEWS (July 6,
2016),
https://www.prisonlegalnews.org/news/2016/jul/6/court-issues-new-injunction-mandating
-education-nyc-prisoners-rikers-island/ [https://perma.cc/XD5T-WKGT].
73. This Monitor was established under Brad H. v. City of New York, a class action
brought in 1999 by the Urban Justice Center. See Impact Litigation, URB. JUST. CTR.
(Nov. 25, 2019), https://mhp.urbanjustice.org/2019/11/25/brad-h-v-city-of-new-york/
[https://perma.cc/CM7W-SGSS].
74. See Nunez Complaint, supra note 11.

2020] OFFICER USE OF FORCE AND THE FAILURE OF OVERSIGHT 1405
C. Nunez v. City of New York and the Nunez Federal Monitorship
In 2012, after decades of bringing litigation against the City for
correction officers’ perpetrated brutality,75 the Prisoners’ Rights Project
at the Legal Aid Society filed Nunez v. City of New York.76 The lawsuit
alleged a “pattern and practice of unnecessary and excessive force
inflicted upon inmates of New York City jails by [DOC] uniformed staff .
. . knowingly permitted and encouraged by Department supervisors,”
citing 11 incidents where DOC staff beat and abused incarcerated people
(the plaintiffs) as examples.77 The parties signed a Consent Judgment in
2015, which, in around 300 provisions, outlines how DOC is to train,
report, investigate, and discipline use of force by correction officers.78 The
Consent Judgment also focuses on the particular issue of incarcerating
minors on Rikers Island.79 As stated in Section I.B, the decree also set up

75. See
The
Prisoners’
Rights
Project,
LEGAL
AID
SOC’Y,
https://www.legalaidnyc.org/programs-projects-units/the-prisoners-rights-project/
[https://perma.cc/EE5K-7FGQ] (last visited Sept. 16, 2020) (“[T]he Prisoners’ Rights
Project [(PRP)] has been fighting to end the rampant brutality by staff against people
incarcerated in New York City jails and mandate reforms to prevent abuse. Our successive
class action litigations challenging staff brutality in individual jails lead to the landmark
decision in Sheppard v. Phoenix, ended the reign of terror in New York City’s Central
Punitive Segregation Unit. When the City failed in its obligations, PRP brought system
wide class action litigation in Ingles v. Toro, which revised the use of force policy and
piloted camera surveillance in the jails.”); see also Boston, supra note 4, at 161–68.
76. Nunez Complaint, supra note 11.
77. Id.
78. See generally Nunez v. City of New York, 11 Civ. 5845 (S.D.N.Y. Oct. 21, 2015)
(consent judgment) [hereinafter Nunez Consent Judgment]. For example, under this
agreement, DOC was required to implement a new Use of Force Directive, or policy, which
is written according to the general principles that
(i) the force used shall always be the minimum amount necessary, and must be
proportional to the resistance or threat encountered; (ii) the use of excessive and
unnecessary force is expressly prohibited; (iii) the Department has a zero
tolerance policy for excessive and unnecessary force; and (iv) the best and safest
way to manage potential Use of Force situations is to prevent or resolve them
without physical force.
Id. at 5. The consent decree also ensured mandatory training and reporting requirements
for staff, investigation procedure, staff discipline, special provisions for the supervision of
people under the age of 19, discipline of incarcerated people, and the creation and
implementation of a plan to move all people in custody under the age of 18 off Rikers
Island. See id. at 10, 15, 25, 40, 44, 46.
79. See Ninth Report of the Nunez Independent Monitor at 1–2, Nunez, 11 Civ. 5845
(S.D.N.Y. May 29, 2020) [hereinafter Ninth Nunez Monitor’s Report],
https://www1.nyc.gov/assets/doc/downloads/pdf/9thMonitorsReport052920AsFiled.pdf
[https://perma.cc/6D83-2RSL]. In 2018, Governor Andrew Cuomo signed the Raise the
Age Law, which required New York City and DOC to move 16- and 17-year-olds off of

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an independent Monitor, the Nunez Monitor, that tracks DOC’s
compliance with the Consent Judgement and has published detailed
reports approximately every six months for the past five years.80 By May
2020, the Monitor had issued nine reports.81
Today, there are record-low numbers of incarcerated people in the City
jails.82 Furthermore, DOC’s staff-to-inmate ratio is 1:1.3, making it the
“largest staffing complement for jails in the United States.”83 This

Rikers Island and into facilities the DOC and the Administration of Children’s Services
jointly managed. See Press Release, Governor Andrew M. Cuomo, Governor Cuomo
Announces Raise the Age Law Now in Effect [hereinafter Raise the Age Law],
https://www.governor.ny.gov/news/governor-cuomo-announces-raise-age-law-now-effect
[https://perma.cc/725D-HDK3] (last visited Sept. 17, 2020).
DEP’T
CORRECTION,
80. See
Nunez
Monitor
Reports,
N.Y.C.
https://www1.nyc.gov/site/doc/media/nunez-reports.page
[https://perma.cc/9WAH-J2UH] (last visited Sept. 18, 2020); see also Benjamin Weiser,
Lawsuit Accuses City’s Jails of Condoning Inmate Abuse, N.Y. TIMES (May 29, 2012),
https://www.nytimes.com/2012/05/30/nyregion/suit-says-new-york-citys-jails-condone-g
uards-beatings-of-inmates.html [https://perma.cc/E6UT-8GUD]; Press Release, U.S.
Dep’t of Just., U.S. Att’y’s Off. for the S. Dist. of N.Y, Department of Justice Takes Legal
Action to Address Pattern and Practice of Excessive Force and Violence at Rikers Island
Jails That Violates the Constitutional Rights of Young Male Inmates (Dec. 18, 2014),
https://www.justice.gov/usao-sdny/pr/department-justice-takes-legal-action-address-pat
tern-and-practice-excessive-force-and [https://perma.cc/GK2Q-UKUC].
81. This Note focuses on the Eighth and Ninth Monitor Reports, dated October 28,
2019, and May 29, 2020, respectively. As of the time of this Note’s publication, it is likely
that another report will have been issued. Although some facts on the ground will change,
it is the Author’s opinion that DOC’s non-compliance with the Nunez Consent Judgment
will not be radically different.
82. At the end of the reporting period in Fiscal 2020, the average daily jail population
in New York City was approximately just over 7,000. See Cynthia Brann, What We Do,
N.Y.C. DEP’T OF CORR., PRELIMINARY MAYOR’S MGMT. REP. 61, 61 (2020) [hereinafter
PRELIMINARY
MAYOR’S
MGMT.
REP.],
https://www1.nyc.gov/assets/operations/downloads/pdf/pmmr2020/doc.pdf
[https://perma.cc/Q7ZS-HJ2Z]; see also Average Daily Jail Population in NYC, MAYOR’S
OFF.
CRIM.
JUST.,
https://criminaljustice.cityofnewyork.us/individual_charts/average-daily-jail-population
-in-nyc/ [https://perma.cc/7WMV-U2XH] (last visited Aug. 21, 2020) (showing a steady
decrease in jail population since 1991). By May 2020, the jail population decreased to
under 4,000 people, the lowest levels of people in DOC custody since 1946. See Ninth Nunez
Monitor’s Report, supra note 79, at 2. The decrease since 2019 is mostly due is mostly due
to the global COVID-19 pandemic. See id. at 11.
83. Eighth Report of the Nunez Independent Monitor at 7, Nunez, 11 Civ. 5845
(S.D.N.Y. Oct. 28, 2019) [hereinafter Eighth Nunez Monitor’s Report],
https://www1.nyc.gov/assets/doc/downloads/pdf/8th_Monitor_Report.pdf
[https://perma.cc/3REX-Y6RB]. Michael Jacobson, the Executive Director of the CUNY
Institute for State and Local Governance and a member of the Independent Commission
on New York City Justice and Incarceration Reform, has observed that DOC staffing has
stayed the same since the 1990s, even though the jail population has dropped by
approximately three-quarters. See Ethan Geringer-Sameth, Council to Examine Persistent

2020] OFFICER USE OF FORCE AND THE FAILURE OF OVERSIGHT 1407
staffing ratio and level of physical control should enable DOC to reduce
the use of violence on incarcerated people; however, the Ninth Nunez
Monitor’s Report, published in May 2020, reveals that DOC officers have
carried out the highest levels of use of force incidents since 2015.84 The
Report also announced that “the conditions that gave rise to the Consent
Judgment have not abated . . . and the desired outcomes are simply not
yet evident.”85 The parties filed with the court in August 2020 and signed
a Remedial Order86 in response to continued non-compliance with the
original Consent Judgment.87
II. MAPPING THE NEW YORK CITY JAIL SYSTEM
The Nunez Monitor is federally appointed oversight that has
continuously reported DOC’s inability to control officer use of force levels.
However, jails in New York City already have internal mechanisms and
external oversight that should, in theory, be able to tackle the pervasive
correction officer use of force. Before analyzing the shortcomings of these
internal investigations and external oversight bodies, Section II.A
examines the structure of DOC itself, including the internal systems the

and Growing Violence Plaguing City Jails, GOTHAM GAZETTE (Jan. 28, 2020),
https://www.gothamgazette.com/city/9069-council-to-examine-growing-violence-plaguin
g-city-jails-rikers [https://perma.cc/3P85-9YQR]; Our Mission, A MORE JUST NYC,
https://www.morejustnyc.org/about-us [https://perma.cc/W6Z6-BFK2] (last visited Aug.
17, 2020). He stated, “it’s probably the most richly-resourced correctional system on the
planet.” See Geringer-Sameth, supra note 83.
84. See Ninth Nunez Monitor’s Report, supra note 79, at 3 (explaining that “use of
force rates . . . [have] reached their highest level since the Consent Judgment went into
effect”); see also Eighth Nunez Monitor’s Report, supra note 83, at 3 (stating the exact
same thing).
85. See Ninth Nunez Monitor’s Report, supra note 79, at 3 (stating “the conditions
that gave rise to the Consent Judgment have not abated since the Effective Date, and the
desired outcomes are simply not yet evident”).
86. See generally Remedial Consent Order Addressing Non-Compliance, Nunez, 11 Civ.
5845 (S.D.N.Y. Aug. 05, 2020) [hereinafter Nunez Remedial Consent Order],
https://www.justice.gov/usao-sdny/press-release/file/1301816/download
[https://perma.cc/VSJ9-K6PP].
87. See Press Release, Legal Aid Soc’y, Statement on Agreement to Address City’s
Ongoing Non-Compliance Issues with Rikers Island Consent Judgment (Aug. 6, 2020),
https://legalaidnyc.org/wp-content/uploads/2020/08/08-06-20-1-Statement-On-Agreemen
t-To-Address-City%E2%80%99s-Ongoing-Non-Compliance-Issues-with-Rikers-Island-C
onsent-Judgment.pdf [https://perma.cc/BX7E-83JC]; Press Release, U.S. Dep’t of Just.,
U.S. Att’y’s Off. for the S. Dist. of N.Y., Acting Manhattan U.S. Attorney Announces
Agreement to Address New York City’s Ongoing Non-Compliance with Rikers Consent
Judgment
(Aug.
6,
2020),
https://www.justice.gov/usao-sdny/pr/acting-manhattan-us-attorney-announces-agreem
ent-address-new-york-city-s-ongoing-non [https://perma.cc/RC47-KVAJ].

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Nunez Consent Judgment required DOC to implement. Then Section II.B
explores oversight actors within New York City. Finally, Section II.C
looks at oversight actors in New York State. Sections II.B and II.C
consider what kind of authority these oversight actors have to either
require DOC to confront the issue of officer use of force or to impact this
crisis on their own.
A. The Department of Correction
The New York City DOC dates back to 1895,88 and today controls 11
jail buildings (eight of which are on Rikers Island), two hospital prison
wards, and court holding pens in all five boroughs.89 As mandated by the
New York City Charter, a Commissioner of Correction (the
Commissioner), who has the authority to appoint two deputies,90 heads
DOC.91 The Mayor appoints and has discretionary power to remove the
Commissioner.92 The Commissioner has “charge and management” of the
City’s jails, hospital wards, and court pens.93 As of 2020, DOC has a
budget that supports a staff of 12,206: 10,063 are uniformed officers and
2,043 are civilians who serve various administrative functions.94 Officers
are collectively represented in a powerful union, the Correction Officers’
Benevolent Association (COBA).95 DOC’s budget, passed by the New
88. History
of
DOC,
N.Y.C.
DEP’T
CORRECTION,
https://www1.nyc.gov/site/doc/about/history-doc.page [https://perma.cc/R4HX-L6L3]
(last visited Aug. 17, 2020).
Facilities
Overview,
N.Y.C.
DEP’T
CORRECTION,
89. See
https://www1.nyc.gov/site/doc/about/about-doc.page [https://perma.cc/HM56-YG7M]
(last visited Aug. 17, 2020).
90. See N.Y.C. CHARTER § 622.
91. See id. § 621.
92. See id. § 6.
93. See id. § 623.
94. N.Y. CITY COUNCIL, FINANCE DIVISION BRIEFING PAPER: DEPARTMENT OF
CORRECTION 2 (2019) [hereinafter FINANCE DIVISION BRIEFING PAPER],
https://council.nyc.gov/budget/wp-content/uploads/sites/54/2019/03/072-DOC-2020.pdf
[https://perma.cc/7M3Y-SFXP].
95. The Correction Officers’ Benevolent Association (COBA), New York City’s
correction officers’ union, is certified by the Office of Collective Bargaining (OCB). See
Bargaining
Units,
OFF.
COLLECTIVE
BARGAINING,
https://www.ocb-nyc.org/guides/bargaining/ [https://perma.cc/8BGZ-XGTE] (last visited
Sept. 16, 2020). The Board of Certification, one of two separate boards under OCB,
“determines which union, if any, represents a majority of employees in a given unit and
certifies that union as the exclusive collective bargaining representative of the bargaining
unit.”
Board
of
Certification,
OFF.
COLLECTIVE
BARGAINING,
https://www.ocb-nyc.org/about/board-of-certification/
[https://perma.cc/P4P6-N9SL]
(last visited Aug. 21, 2020). Representing around 9,000 DOC employees, COBA has an
executive board and assigned delegates to each of the New York City jail facilities,

2020] OFFICER USE OF FORCE AND THE FAILURE OF OVERSIGHT 1409
York City Council, is $1.4 billion for 2020.96 As the agency with direct
control over the day-to-day operations of New York City jails, DOC —
and by extension, the correction officers who work for it and its internal
mechanisms that are in place for correction officers’ actions — is the focus
of the Nunez Consent Judgment.
DOC publishes directives, or “Policy and Operating Procedures,” “that
[govern] the methods of accomplishing [the] missions, objectives, and
goals” of the Department and details the “full scope” of DOC’s
activities.97 DOC’s “Use of Force” directive was rewritten to conform
with the Nunez Consent Judgment.98 DOC also promulgated Title 39 of
the Rules of the City of New York, which contains the “Inmate Rule
Book.”99 This rule book outlines the rights of incarcerated people,
detailing general rights and privileges, required rules of conduct, hearing
procedures, penalties, and appeals.100 Directives and the Inmate Rule
Book contain what DOC has officially sanctioned as appropriate staff
behavior and the rights of incarcerated people within City jail facilities.
DOC has internal mechanisms to investigate instances when official
procedures are not followed. The Investigation Division (ID) investigates
misconduct DOC staff commit, including use of force and sexual assault
allegations.101 The ID has civilian and officer staffers,102 and its staff has
grown to 245 employees in the past few years in an effort to comply with
the Nunez Consent Decree.103 The Nunez Ninth Monitor’s report

including prison hospital wards and the Investigations Unit within DOC. See About
COBA, CORR. OFFICERS’ BENEVOLENT ASS’N, INC.,
https://www.cobanyc.org/correction-officers-benevolent-association-inc
[https://perma.cc/BEX7-YD8X] (last visited Sept. 17, 2020).
96. See FINANCE DIVISION BRIEFING PAPER, supra note 94, at 1.
97. N.Y.C. DEP’T OF CORR., DIRECTIVE NO. 0001: TABLE OF CONTENTS (1978).
Different distribution rules apply to directives, 46 of which are approved for online
publication.
See
Directives,
N.Y.C.
DEP’T
CORRECTION,
https://www1.nyc.gov/site/doc/directives/directives.page [https://perma.cc/34G7-5FQ2]
(last visited Sept. 17, 2020).
98. See Heidi Grossman, Deputy Comm’r of Legal Matters, N.Y.C. Dep’t of Corr.,
Statement
before
the
New
York
City
Council
(Nov.
14,
2016),
https://www1.nyc.gov/site/doc/media/nunez-settlement%20.page
[https://perma.cc/G772-XHJW].
99. 39 R.C.N.Y §§ 1-01–1-06.
100. See id. § 1-02.
101. See Job Posting Notice for Investigator Position in Investigations Unit, N.Y.C. DEP’T
CORRECTION
(July
28,
2017),
https://www1.nyc.gov/assets/jointheboldest/downloads/pdf/job/DisciplineStaff_Conduct
_%20II_072_2018_296183.pdf [https://perma.cc/23CY-PZUX].
102. See id.
103. See Ninth Nunez Monitor’s Report, supra note 79, at 171.

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announced that DOC reorganized the units under ID, moving from a
facility-based model to an “Intake Squad,” launched in February of
2020,104 responsible for the preliminary evaluation of each use of force
incident.105 The Intake Squad investigator decides whether to close the
investigation and recommend a disciplinary or administrative response
against the officer involved, or refer the investigation for a “Full ID”
investigation.106 The DOC Deputy Commissioner who oversees the ID
also oversees the Trials Division,107 which is required to “negotiate plea
dispositions and make recommendations to [the Office of Administrative
Trials and Hearings]108 judges” when the ID forwards a case of officer
misconduct.109 How quickly and objectively ID staff is able to process
incidents and decide what follow up is necessary is an indicator of how
well DOC, as an agency, can regulate its own behavior; the review process
of use of force incidents has continually not met the standards laid out by
the Nunez Consent Judgment.110
DOC must also operate in compliance with Minimum Standards BOC,
the Department’s non-judicial oversight board, promulgates.111
However, DOC can make an application to BOC to request a variance
from these Minimum Standards.112 BOC then holds public meetings,113
where it votes on DOC’s variance requests.114 A variance can be: (1)
“limited,” to extend for a set period of time; (2) “continuing,” set for an
indefinite amount of time; or (3) “emergency,” granted for a maximum of
30 days.115 A continuing variance can only be requested if, “despite . . .

104. See id. at 48.
105. See id. at 43–44.
106. See id. at 45–46. For a description of a “Full ID” investigation, see Nunez Consent
Judgment, supra note 78, at 18–21.
DEP’T
CORRECTION,
107. Leadership
at
DOC,
N.Y.C.
https://www1.nyc.gov/site/doc/about/leadership-at-doc.page
[https://perma.cc/A2UK-MQ5W] (last visited Aug. 19, 2020).
108. See infra Section II.B.iv.
109. Nunez Consent Judgment, supra note 78, at 27.
110. See infra Section III.A.
111. See infra Section II.B.i.
112. See 40 R.C.N.Y. § 1-15(a).
113. See
Meetings,
NYC
BD.
CORRECTION,
https://www1.nyc.gov/site/boc/meetings/meetings.page [https://perma.cc/G5FE-78SH]
(last visited Aug. 19, 2020).
114. See 40 R.C.N.Y. § 1-15(a); see also, e.g., Record of Variance Action for July 9, 2019
B D.
CORRECTION,
Public
Meeting,
NYC
https://www1.nyc.gov/assets/boc/downloads/pdf/Meetings/2019/July/2019.7%20Record
%20of%20Variance%20Action%20-%20Psychotropic%20medications%20FINAL.pdf
[https://perma.cc/MQE3-2HKZ].
115. 40 R.C.N.Y. § 1-15(b).

2020] OFFICER USE OF FORCE AND THE FAILURE OF OVERSIGHT 1411
best efforts,” full compliance would “create extreme practical difficulties
as a result of circumstances unique to a particular facility.”116 BOC can
only grant an indefinite variance if it “would not create a danger or undue
hardship to staff or prisoners,” or “an alternative” way of satisfying the
“intent” of the minimum standard is available.117 Variance requests are
a primary way that DOC and BOC formally interact, and require that the
two agencies be in ongoing communication. Although BOC has the power
to investigate DOC practices, whether BOC denied a variance request or
not,118 it is unclear whether BOC would have the power to sue to enforce
the Minimum Standards. Even though it is DOC’s staff that is on the
ground carrying out the day-to-day operations in City jails, DOC, as an
agency, sits in the middle of a web of oversight actors described in
Sections II.B and II.C.
B. New York City Government Oversight Agencies and Officials
As Professors Michele Deitch and Michael Mushlin aptly put it,
“independent, external oversight of conditions in correctional facilities is
an essential tool for protecting human rights in a closed institutional
environment” like New York City jails.119 As the Constitution of New
York State cedes “home rule powers” to local governments within the
state,120 the New York City Charter outlines much of the legal authority
over New York City jails to specific actors within the New York City
government.121 This Section examines the authority of the BOC, the
Mayor and the Mayor’s Office of Criminal Justice (MOCJ), the New York
City Council and pertinent committees and commissions under its
purview, the Office of Administrative Trials and Hearings (OATH), the
Department of Investigation (DOI), and the Bronx District Attorney’s
Office, as it pertains to DOC and DOC employees.
i. Board of Correction
The New York City BOC is a non-judicial oversight board that
“regulates, monitors, and inspects the correctional facilities of the

116.
117.
118.
119.
120.
121.

Id. § 1-15(b)(2).
Id.
See infra Section II.B.i.
Deitch & Mushlin, supra note 9, at 248.
N.Y. CONST. art. IX, § 2.
See generally N.Y.C. CHARTER.

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City.”122 Twenty years after its creation in 1957, New York City voters
approved Charter Amendments that gave the Board a mandate to create
Minimum Standards, or “binding and enforceable regulations,”123 for the
care of all people in DOC’s custody. 124 Nine people serve on the Board
for six-year, staggered terms.125 To scale back the Mayor’s dominance,
the 1977 Charter Amendments diversified who selects BOC members126 —
now, the Mayor chooses three, the City Council chooses three, and the two
departments of the New York State Appellate Court nominate the last
three members.127 The BOC members have “for-cause” removal
protection, meaning they can only be removed for neglect of their
duties.128 In 2020, the Board’s budget was $3.1 million,129 which is only
0.22% of the amount of money allocated to DOC.
The BOC’s ability to publicize information is key to its oversight role.
It has the authority to inspect or visit any facility under DOC’s
jurisdiction at-will, read all agency records, and evaluate DOC’s
performance.130 Importantly, the Board also has subpoena power,131
entitling it to any piece of information or individual testimony by those
in DOC. In addition, the Board must submit a report to the Mayor, the
New York City Council, and the DOC Commissioner at least once per year
with “findings and recommendations” for the better administration of
jails.132 The power to compel DOC employees to appear publicly at Board

122. About, NYC BD. CORRECTION, https://www1.nyc.gov/site/boc/about/about.page
[https://perma.cc/9LDV-NB9K] (last visited Aug. 19, 2020).
123. Richard Wolf, Reflection on a Government Model of Correctional Oversight, 30 PACE
L. REV. 1610, 1612–13 (2010).
124. See John Brickman, The Role of Civilian Organizations with Prison Access and
Citizen Members: The New York Experience, 30 PACE L. REV. 1562, 1564–65 (2010).
125. N.Y.C. CHARTER § 626(a).
126. See Brickman, supra note 124, at 1566.
127. N.Y.C. CHARTER § 626(a).
128. See id. In addition to the nine members, the Board has a staff that includes teams
under the Executive Director, General Counsel, Monitoring, and Research. See Board
Staff, NYC BD. CORRECTION, https://www1.nyc.gov/site/boc/about/board-staff.page
[https://perma.cc/R44P-4K9S] (last visited Aug. 19, 2020). This staff consists of fewer
than 30 people who work either from an office in New York City’s main municipal building
or in an office trailer on Rikers Island. See id. Compare this figure to DOC staff, which is
approximately 12,000. See FINANCE DIVISION BRIEFING PAPER, supra note 94, at 7.
129. See N.Y. CITY COUNCIL, FINANCE DIVISION BRIEFING PAPER: BOARD OF
CORRECTION
2
(2019),
https://council.nyc.gov/budget/wp-content/uploads/sites/54/2019/03/073-BOC-2020.pdf
[https://perma.cc/C92T-7CQZ].
130. N.Y.C. CHARTER § 626(c).
131. See id. § 626(g).
132. Id. § 626(d).

2020] OFFICER USE OF FORCE AND THE FAILURE OF OVERSIGHT 1413
meetings, and having the right to any DOC materials, enables BOC to
direct public and press attention to the issues going on in New York City
jails.
As mentioned above, the City Charter charges the Board with
establishing Minimum Standards for the “care, custody, correction,
treatment, supervision, and discipline” for the people incarcerated in New
York City jails, codified as Title 40 in the Rules of the City of New
York.133 These Minimum Standards regulate a wide range of issues, from
access to health and mental health care to the amount of time DOC can
place an individual in punitive segregation or solitary confinement.134
However, as Section III.B discusses, the Board has not promulgated
Minimum Standards for officer use of force.135 If the Department cannot
comply with something dictated in these Minimum Standards, DOC must
make a variance request, which is heard and decided on at the Board’s
public meetings, where activists, experts, and elected officials usually
comment publicly.136 Again, these regular public meetings emphasize the
Board’s ability to drive news coverage and put otherwise hidden issues in
City jails on display.
ii. Office of the Mayor
As the chief executive officer of New York City,137 the Mayor can
impact the City’s policy priorities mainly through staffing decisions and
budget priorities. The heads of mayoral agencies serve at the Mayor’s
pleasure and he, therefore, has the power to hire and fire the
Commissioner of Correction.138 The Mayor also has the authority to
appoint Deputy Mayors with whatever “duties and responsibilities” he
assigns.139 For example, the First Deputy Mayor “directly supervises and

133. See About, NYC BD. CORRECTION, supra note 122. The Mayor and DOC
Commissioner have the opportunity to review and comment on Minimum Standards
before the Board publishes them. See N.Y.C. CHARTER § 626(e).
134. See generally 40 R.C.N.Y. §§ 1-01–5-42.
135. See infra Section III.B.
CORRECTION,
136. See,
e.g.,
2019
Meetings,
NYC
BD.
https://www1.nyc.gov/site/boc/meetings/2019-meetings.page
[https://perma.cc/AB3L-5Q4Q] (last visited Aug.19, 2020). The live recordings, agendas,
and decisions made in these meetings are posted on the Board’s website. See id.
137. See N.Y.C. CHARTER § 3.
138. See id. § 6.
139. Id. § 7.

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coordinates with the Department of Correction.”140 The Mayor can also
reorganize any agencies under his purview,141 which include the MOCJ,142
the Mayor’s Office of Management and Budget (OMB), and the Mayor’s
Office of Labor Relations (OLR). Each of these three offices plays a
different role in the operation, direction, and workforce of New York City
jails.
The MOCJ has the duty to advise the Mayor regarding any “criminal
justice programs and activities” within New York City.143 Within the
MOCJ, the Justice Implementation Task Force is dedicated to the
“Smaller, Safer, Fairer” plan to close Rikers Island and build four
borough-based jails facilities with a maximum capacity of 3,300 total.144
The Justice Implementation Task Force has three working groups: Safely
Reducing the Size of the Jail Population, Culture Change, and Design and
Facilities.145 OMB assists the Mayor with his duty to propose a
preliminary and executive budget.146 As dictated by the Charter, the
Mayor plays a significant role in creating the City’s operating budget,
coordinating the reported needs of every government agency in the
City,147 and negotiating with the New York City Council to pass a budget
each year.148 OLR represents the Mayor “in the conduct of all labor
relations between the City of New York and labor unions representing
employees of the City.”149 Therefore, through collective bargaining
140. First
Deputy
Mayor,
OFF.
MAYOR,
https://www1.nyc.gov/office-of-the-mayor/dean-fuleihan.page
[https://perma.cc/HE89-QVHK] (last visited Aug. 19, 2020).
141. See N.Y.C. CHARTER § 11.
142. Id. § 13.
143. Id.
144. See The Justice Implementation Task Force, MAYOR’S OFF. CRIM. JUST.,
https://criminaljustice.cityofnewyork.us/programs/justice-implementation-task-force/
[https://perma.cc/6CAK-L5BU] (last visited Aug. 19, 2020).
145. See SMALLER SAFER FAIRER: A ROADMAP TO CLOSING RIKERS ISLAND, supra note
43, at 8–9.
146. See N.Y.C. CHARTER § 225(a)–(b). The New York City budget schedule is laid out
in the New York City Charter. See New York City Budget Cycle, MAYOR’S OFF. MGMT. &
BUDGET,
https://www1.nyc.gov/site/omb/about/new-york-city-budget-cycle.page
[https://perma.cc/ARP2-VF8Z] (last visited Aug. 19, 2020).
147. See N.Y.C. CHARTER § 103.
148. See id. § 254. The Mayor has veto power over changes to the budget, but this can
be overridden by a two-thirds vote in the Council. See id. § 255. New York City Council’s
Committee on Finance is tasked with reviewing and modifying the City’s budget. See
Committee on Finance, N.Y. CITY COUNCIL, https://council.nyc.gov/committees/finance/
[https://perma.cc/9E47-E86X] (last visited Aug. 19, 2020).
149. About OLR, OFF. LAB. RELS., https://www1.nyc.gov/site/olr/about/about-olr.page
[https://perma.cc/EHW9-MPWF] (last visited Aug. 19, 2020). The Executive Orders
dictate the Mayor’s legal authority. See id.

2020] OFFICER USE OF FORCE AND THE FAILURE OF OVERSIGHT 1415
agreements, COBA, the union that represents thousands of DOC
employees, contracts with OLR.150 It is the Mayor who dictates the
administration’s priorities when coordinating with mayoral agencies like
DOC, when proposing and negotiating the content the City’s operating
budget, and when bargaining with city employees.
iii. New York City Council
The New York City Council (the Council) is the “legislative body of the
city”151 and operates as an “equal partner” to the Mayor.152 The legal
relationship between the Mayor and the Council is comparable to that of
the President and Congress on the federal level.153 The Council is
composed of 51 Council Members, each elected from a district in New
York City.154 The Council also has a popularly elected public advocate,155
who does not get a vote but acts as an ombudsman for the City
government.156 The Council currently includes 38 standing committees
that have jurisdiction over different matters and city agencies.157 For
example, the Committee on Criminal Justice oversees DOC, BOC, and the
150. See, e.g., Executed Contract: Correction Officers, OFF. OF LAB. RELS. (Jan. 6, 2017)
[hereinafter
COBA
Agreement],
https://www1.nyc.gov/assets/olr/downloads/pdf/collectivebargaining/coba-final-agreeme
nt-2011-2019.pdf [https://perma.cc/TM75-EZ2K]. The last contract expired on February
28, 2019, and negotiations are still pending. See President’s Message, COBA NEWS, Apr.
2019,
at
3,
https://www.cobanyc.org/sites/default/files/files/COBA_Newsletter_April_2019.pdf
[https://perma.cc/X3U9-BXAU]. In addition to outlining requirements for salary,
vacation, and health benefits, this expired contract also ensures the existence of a labor
management committee to interface with OLR. See COBA Agreement, supra note 150, at
35. It also created the Rikers Island Central Arrest Unit in coordination with the Bronx
District Attorney to “pursue re-arrest of aggravated harassment and assault on Correction
Officers committed by [incarcerated persons] while [in jail].” Id. at 64.
151. N.Y.C. CHARTER § 21. The Council has the power to amend the New York City
Charter. See id. § 40.
152. What We Do, N.Y. CITY COUNCIL, https://council.nyc.gov/azbout/
[https://perma.cc/HA5M-ZP24] (last visited Aug. 19, 2020).
153. See id.
CITY
COUNCIL,
154. See
Council
Members
&
Districts,
N.Y.
https://council.nyc.gov/districts/ [https://perma.cc/EX5L-F7LV] (last visited Aug. 19,
2020).
155. See N.Y.C. CHARTER § 24. The Council also elects a speaker who presides over
Council meetings. See id. § 44.
156. See Duties of the Public Advocate Office, N.Y.C. PUB. ADVOC. JUMAANE D.
WILLIAMS,
https://www.pubadvocate.nyc.gov/about#duties/
[https://perma.cc/Z9L3-3NAJ] (last visited Sept. 17, 2020) (“In the event of a vacancy or
incapacity of the mayor, the public advocate is first in line to become mayor.”).
157. See Committees, N.Y. CITY COUNCIL, https://council.nyc.gov/committees/
[https://perma.cc/X8BM-UCZA] (last visited Aug 24, 2020).

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Department of Probation.158 As DOC falls within its purview, the
Committee on Criminal Justice has the power of “investigation and
oversight” and must review DOC’s activities, efficiency, and appropriated
budget.159 Furthermore, the Committee is responsible for holding at least
one hearing per year on the Department’s activities.160 As with every
committee in the Council, this committee can demand any governmentemployed person to appear under oath and compel the production of any
document it deems necessary.161
The former Speaker of the City Council, Melissa Mark-Viverito,
convened the Independent Commission on New York City Criminal
Justice and Incarceration Reform, which issued a blueprint, A More Just
New York City, for improving New York City’s criminal justice system in
2017.162 This proposal called for closing Rikers Island and building new,
borough-based facilities, on top of other reforms.163 As outlined above,
the de Blasio Administration then issued its plan for closing Rikers and
convened the Justice Implementation Task Force under the MOCJ.164 In
October 2019, the Council officially voted to close Rikers Island165 and
passed Local Law 2019/192, which requires the MOCJ to submit a report
twice per year and BOC to submit a report once per year on the status of
closing Rikers Island.166

158. See
Committee
on
Criminal
Justice,
N.Y.
CITY
COUNCIL,
https://council.nyc.gov/committees/criminal-justice/ [https://perma.cc/QE2Z-F2J6] (last
visited Aug 24, 2020).
159. N.Y.C. CHARTER § 29(a)(1)–(2) (this section also gives each individual City Council
member power of investigation and oversight, and, therefore, any Council member can
visit City jails at any time); see, e.g., Samar Khursid, Now Overseeing Closure, Council
Member Makes First Visit to Rikers, GOTHAM GAZETTE (Mar. 7, 2018),
https://www.gothamgazette.com/city/7516-now-overseeing-rikers-closure-council-membe
r-makes-first-visit [https://perma.cc/4AG7-WTYK].
160. See N.Y.C. CHARTER § 29(a)(1)–(2)
161. See id. § 29(b).
162. INDEP. COMM’N ON N.Y.C. CRIM. JUST. & INCARCERATION REFORM, A MORE JUST
NEW YORK CITY 14 (2017) [hereinafter A MORE JUST NEW YORK CITY],
https://static1.squarespace.com/static/5b6de4731aef1de914f43628/t/5b96c6f81ae6cf5e9c5
f186d/1536607993842/Lippman+Commission+Report+FINAL+Singles.pdf
[https://perma.cc/6XBW-CYVX].
163. See FINANCE DIVISION BRIEFING PAPER, supra note 94, at 12–14.
164. See supra Section II.B.ii.
165. See Richard Gonzalez, City Council Votes to Close New York’s Notorious Rikers
Island
Jail
Complex,
NPR
(Oct.
17,
2019,
8:32
PM),
https://www.npr.org/2019/10/17/771167909/new-york-to-close-citys-notorious-rikers-isla
nd-jail-complex [https://perma.cc/YH57-REVX]; see also SMALLER SAFER FAIRER: A
ROADMAP TO CLOSING RIKERS ISLAND, supra note 43.
166. N.Y.
CITY
COUNCIL,
LEGIS.
RSCH.
CTR.,
https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=4146410&GUID=8E3F4ED

2020] OFFICER USE OF FORCE AND THE FAILURE OF OVERSIGHT 1417
iv. Office of Administrative Trials and Hearings
If DOC seeks to take disciplinary action against one of their employees,
that employee has a right to a hearing in front of an administrative law
judge (ALJ) in the Office of Administrative Trials and Hearings
(OATH).167 This is because both uniformed and non-uniformed DOC
employees take an exam as part of the application process,168 and are
therefore designated as “competitive class” employees under the New
York State Civil Service Law.169 OATH’s mandate is to “conduct
adjudicatory hearings for all agencies of the city unless otherwise
provided for by executive order, rule, law or pursuant to collective
bargaining agreements.”170 OATH has also promulgated rules governing
these disciplinary hearings171 that give ALJs particular privileges. For
example, ALJs have the right to request that the “personnel file, abstract
of a personnel file, driver record, owner record, or other similar or
analogous file” be provided for his or her review if not previously entered
into evidence.172 However, the DOC Commissioner ultimately still retains
the “authority to accept the factual findings and penalty
recommendation or to modify them, as appropriate” after an OATH
hearing.173

3-8A6F-402F-9D5B-25A3707DA104&Options=&Search=
[https://perma.cc/8E3E-JJMQ].
167. See N.Y. CIV. SERV. LAW § 75(1) (McKinney 2020).
CORRECTION,
168. See
Become
a
Correction
Officer,
DEP’T
https://www1.nyc.gov/site/jointheboldest/officer/apply-now.page
[https://perma.cc/8HKW-22UV] (last visited Sept. 17, 2020); Join the Boldest: All Open
Jobs,
DEP’T
CORRECTION,
https://www1.nyc.gov/site/jointheboldest/civilian/open-roles.page
[https://perma.cc/72GC-7SXF] (last visited Aug. 17, 2020).
169. N.Y. CIV. SERV. LAW § 44 (McKinney 2020).
170. N.Y.C. CHARTER § 1048(1).
171. See 48 R.C.N.Y. § 1-03.
172. Id. § 1-47(b). COBA’s collective bargaining agreement states that “the past
disciplinary or work record of an employee may not be revealed during a Section 75 . . .
disciplinary proceeding until a determination as to guilt or innocence of the member has
been determined.” COBA Agreement, supra note 150. However, Title 48, § 1-47(b) specifies
that an ALJ may request such records “upon determining that the petition” or document
requesting the administrative hearing, “will be sustained in whole or in part.” 48 R.C.N.Y.
§ 1-47(b). ALJs also maintain the right to obtain these records ex parte. See id. § 1-47(b).
173. Eighth Nunez Monitor’s Report, supra note 83, at 184.

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v. Department of Investigation
The DOI is New York City’s independent inspector general and is a law
enforcement agency.174 Originally created in 1873 to root out corruption
in City government,175 DOI’s authority is broad. The Charter empowers
the agency’s commissioner to “make any study or investigation which in
his opinion may be in the best interests of the city, including but not
limited to investigations of the affairs, functions, accounts, methods,
personnel or efficiency of any agency.”176 DOI, therefore, has an
incredible amount of discretion to look into an agency’s affairs that is
widely recognized as having internal challenges, such as DOC.
DOI has broad investigative and enforcement authority. First, DOI
has Inspectors General Units at all New York City agencies called squads,
that investigate and can choose to coordinate prosecution of City
personnel for illegal behavior.177 Squad 1 is specifically charged with
conducting “system-wide” investigations and making recommendations
to improve DOC, with a goal of “improving conditions in city jails.”178
DOI is authorized to take into consideration any civil litigation brought
against individual DOC officers, DOC, or the City, notices of claim
received by or settled by the City’s comptroller about DOC, and any
criminal charges brought against individual officers.179 Second, DOI has
the duty to have a complaint bureau within DOC to receive complaints.180
Third, the DOC Commissioner must act in coordination with the specific
Inspector General assigned to DOC, who may bring formal and informal
disciplinary proceedings against any DOC employee.181 Finally, DOI can

174. DOI’s
Mission
and
History,
DEP’T
INVESTIGATION,
https://www1.nyc.gov/site/doi/about/mission.page [https://perma.cc/F7ZB-L8NH] (last
visited Aug. 17, 2020).
175. See id.
176. N.Y.C. CHARTER § 803(b) (emphasis added).
177. Inspectors
General,
DEP’T
INVESTIGATION,
https://www1.nyc.gov/site/doi/offices/inspector-general.page
[https://perma.cc/GXG9-CERD] (last visited Aug. 17, 2020).
178. N.Y.C. CHARTER § 803(d)(1). The sub-section of DOI, or “squad,” responsible for
Monitoring DOC is Squad 1. See Squad One, DEP’T INVESTIGATION,
https://www1.nyc.gov/site/doi/offices/squad-one.page
[https://perma.cc/9JFH-ZJCB]
(last visited Aug. 17, 2020).
179. See N.Y.C. CHARTER § 803(d)(1).
180. See id. § 804.
181. See Legal and Executive Authority: Executive Order No. 105, DEP’T INVESTIGATION,
https://www1.nyc.gov/site/doi/about/legal-executive-authority.page#eo105
[https://perma.cc/L4ES-KGYM] (last visited Sept. 17, 2020).

2020] OFFICER USE OF FORCE AND THE FAILURE OF OVERSIGHT 1419
also refer cases against DOC employees to the appropriate District
Attorney for criminal prosecution.182
vi. Bronx District Attorney’s Office
The Bronx District Attorney (Bronx DA) has a trailer office on Rikers
Island, which, as of 2018, housed 12 prosecutors and two investigators.183
Two bureaus within the investigations division of the Bronx DA’s office
are charged with handling subject matters that stem from crime within
the jail system.184 First, the Rikers Island Prosecution Bureau targets
“criminal networks” within City jails and “prosecutes criminal offenses
committed on Rikers.”185 As part of this bureau, the Rikers Island
Central Arrest unit was created by the City’s contract with COBA.186
According to a memorandum of understanding between COBA and the
City, the Arrest Unit pursues the “re-arrest for aggravated harassment
and assault on Correction Officers committed by [incarcerated persons]
while [in jail].”187 Second, the Public Integrity Unit is “responsible for
examining allegations of misconduct by correction officers,”188 and
specifically, “investigates allegations of excessive force by uniformed
public servants.”189 There is also a Correction Intelligence Bureau, which
has the general task of “[investigating] crime in the jails.”190 By setting
182. See Eighth Nunez Monitor’s Report, supra note 83, at 160 (“The Department shall
promptly refer any Use of Force Incident to DOI for further investigation when the
conduct of Staff appears to be criminal in nature.”).
183. See James C. McKinley Jr., Seeking to Curb Jail Violence, Bronx Prosecutors Set up
Shop
on
Rikers
Island,
N.Y.
TIMES
(Jan.
24,
2018),
https://www.nytimes.com/2018/01/24/nyregion/rikers-bronx-prosecutor-violence.html
[https://perma.cc/A2SS-T5NP].
BRONX
DIST.
ATT’Y,
184. See
Investigations
Division,
OFF.
https://www.bronxda.nyc.gov/html/bureaus/investigations-division.shtml
[https://perma.cc/6VWF-EZNY] (last visited Sept. 17, 2020) (stating the Public Integrity
Bureau and Rikers Island Prosecution Bureau handle crime originating in City jails).
185. Id.
186. See Press Release, Off. of the Mayor, Mayor de Blasio Announces Tentative
Contract Agreement with Correction Officers’ Benevolent Association (Dec. 31, 2015),
https://www1.nyc.gov/office-of-the-mayor/news/985-15/mayor-de-blasio-tentative-contr
act-agreement-correction-officers-benevolent [https://perma.cc/SEU9-TM88].
187. COBA Agreement, supra note 150; see also Michael Schwirtz, New York City and
Correction Officers Reach Tentative Contract Deal, N.Y. TIMES (Dec. 31, 2015),
https://www.nytimes.com/2016/01/01/nyregion/new-york-city-correction-officers-reach-t
entative-contract-deal.html [https://perma.cc/5M83-MFGU] (finding this new contract
provision allows the Central Arrest Unit to prosecute inmates more efficiently when they
assault correction officers).
188. McKinley, supra note 183.
189. Investigations Division, supra note 184.
190. McKinley, supra note 183.

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up an office directly on Rikers Island, this branch of the Bronx DA has a
unique closeness to the day-to-day happening of City jails.
C. New York State Oversight
Both the governor’s agenda and New York State Legislature’s laws
undoubtedly have an effect on criminal justice in New York City.191
Committees within the New York State Senate and Assembly also focus
on issues affecting incarcerated people. Further, the Corrections
Association of New York (CANY), which is one of only two independent
organizations with authority to visit and report on State prisons,192 has
existed since 1844, playing an important role in the history of advocating
for prisoners’ rights in all of New York State.193 This Section, however,
only examines the New York State Commission of Correction, as it is an
oversight body that explicitly has authority over all of the jails and
prisons in New York State.
i. The State Commission of Correction
The State’s legislative branch194 created the New York State’s
Commission of Correction (SCOC or the Commission), which sits within
the State’s executive branch.195 The Commission has three “deliberative”

191. See Raise the Age Law, supra note 79.
192. See Jack Beck, Role of the Correctional Association of New York in a New Paradigm
of Prison Monitoring, 30 PACE L. REV. 1572, 1573 (2010); see also Who We Are, CORR.
ASS’N
N.Y.,
https://www.correctionalassociation.org/about-cany
[https://perma.cc/WR7H-JAVN] (last visited Aug. 20, 2020).
193. See
History
and
Impact,
CORR.
ASS’N
N.Y.,
https://www.correctionalassociation.org/history-and-impact
[https://perma.cc/C28J-RXDS] (last visited Aug. 17, 2020).
194. The New York State Legislature consists of a senate and an assembly. N.Y. CONST.
art. III, § 1. The senate has a standing committee on Crime Victims, Crime, and Correction
that issues reports and holds public meetings. See Crime Victims, Crime and Correction,
N.Y.
STATE
SENATE,
https://www.nysenate.gov/committees/crime-victims-crime-and-correction
[https://perma.cc/85P9-7AN5] (last visited Sept. 17, 2020). The Assembly’s Standing
Committee on Correction can hold hearings and issue reports on jails and prisons in the
state. See Standing Committee on Correction, N.Y. STATE ASSEMBLY,
https://nyassembly.gov/comm/?id=10 [https://perma.cc/EQ6W-GLYK] (last visited
Sept. 17, 2020). Given the lack of public material produced by these standing committees
with respect to New York City jails, however, this Note will not address them beyond this
footnote.
195. See N.Y. CONST. art. V, § 4 (“Except as otherwise provided in this constitution,
the heads of all other departments and the members of all boards and commissions,
excepting temporary commissions for special purposes, shall be appointed by the
governor.”).

2020] OFFICER USE OF FORCE AND THE FAILURE OF OVERSIGHT 1421
members196 appointed by the Governor and confirmed with the advice
and consent of the Senate, with each member serving five-year terms.197
The Governor chooses one of these members to be the chairman, or chief
executive officer. 198 The two other deliberative members serve as the
chairs of the Medical Review Board and Citizens’ Policy and Complaint
Review Council.199 The Medical Review Board makes recommendations
for “improving the delivery of health care to detainees and sentenced
offenders.”200 This duty exists because SCOC has the duty to “investigate
and review the cause and circumstances surrounding the death of any
inmate of a correctional facility.”201
SCOC writes “reports [for] the Governor . . . of New York,”202 as the
Commission is charged with “establishing minimum standards for the safe
and proper operation of local jails and the inspection and enforcement of
local facilities to ensure that facilities are meeting all legal
requirements.”203 SCOC can approve or reject construction plans for
correctional facilities.204 Further, SCOC has the power to contract,205
issue subpoenas,206 and “[c]lose any correctional facility which is unsafe,
unsanitary or inadequate.”207 This makes the scope of SCOC’s authority
to affect the on-the-ground realities in New York State jails quite broad.

196. Medical Review Board and Citizen’s Policy and Complaint Review Council, N.Y.
STATE,
COMM’N
CORRECTION
[hereinafter
Medical
Review
Board],
https://scoc.ny.gov/mrbcpcrc.htm [https://perma.cc/2Z3A-CMQK] (last visited Aug. 17,
2020).
197. See N.Y. CORRECT. LAW § 41(1)–(2) (McKinney 2020).
198. See id. §§ 41(1), 44(1).
199. See Medical Review Board, supra note 196.
200. Id.
201. N.Y. CORRECT. LAW § 47.
202. N.Y. STATE, COMM’N OF CORR., THE WORST OFFENDERS, REPORT: THE MOST
PROBLEMATIC CORRECTIONAL FACILITIES IN NEW YORK STATE 1–2 (2018) [hereinafter
THE
WORST
OFFENDERS],
https://scoc.ny.gov/pdfdocs/Problematic-Jails-Report-2-2018.pdf
[https://perma.cc/2KTN-Z2ZH].
203. Id. at 1. As of January 2020, there is a bill pending in the New York State
Legislature which would require SCOC to present these reports to both the Assembly and
the Senate, as well as to the Governor. See N.Y. Assemb. 9062, 243rd Leg. Sess. (N.Y.
2019).
204. See N.Y. CORRECT. LAW § 45(10).
205. See id. § 45(14).
206. Id. § 46(2).
207. Id. § 45(8)(a).

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III. OVERSIGHT’S ABDICATION OF RESPONSIBILITY
Part II outlined the systems within DOC and the non-DOC oversight
actors responsible for setting the standards for how incarcerated people
are treated and can potentially hold DOC accountable. Part III catalogs
DOC’s and oversight actors’ responses to the statistics of violence within
jails, with the aim to ultimately show that at every stage, DOC and its
oversight have failed to meaningfully address “unnecessary and
excessive”208 officer use of force. Instead, DOC prefers to focus on future
goals and vague promises of a better system tomorrow. Part III argues
that New York City’s carceral system has met the crisis of violence in its
jails with relative silence.
A. “The System Is Overwhelmed”209
DOC’s own data demonstrates a steady increase in use of force by
correction officers in recent years.210 As stated above, the “use of force
rates . . . reached their highest levels” since 2015, the year the Nunez
Consent Judgment went into effect to address this exact issue.211 The
Monitor has stated DOC’s failure to bring staff to comply with the consent
decree is “driven in large part by the overreliance on Probe Teams,”212
and alarms the use of unnecessarily painful escort techniques,
unnecessary and improper use of [Chemical Agent or “OC”] spray,213 and
hyper-confrontational staff behaviors.214 The Monitor also notes that
these “problems are compounded by uniform leadership’s inability to
identify these aspects of Staff misconduct, thus failing to address them
with their subordinates.”215 Another major hurdle regarding staff

208. Ninth Nunez Monitor’s Report, supra note 79, at 3.
209. Eighth Nunez Monitor’s Report, supra note 83, at 5.
210. See PRELIMINARY MAYOR’S MGMT. REP., supra note 82, at 62; see also Erin Durkin,
New Stats Show Surge in Violence at Rikers Island, POLITICO (Sept. 17, 2019, 6:51 PM),
https://www.politico.com/states/new-york/albany/story/2019/09/17/new-stats-show-surge
-in-violence-at-rikers-island-1193798#:~:text=Advertisement- [https://perma.cc/REL85GNB].
211. See Ninth Nunez Monitor’s Report, supra note 79, at 3.
212. Probe teams are when a “large numbers of Staff respond to a centralized location
(generally in or near intake) to suit up in heavy riot gear (helmet, prison vest, baton,
poly-carbon shield, MK-9, chemical agent and breathing apparatus).” Id. at 28.
“Although by policy, a Probe Team should consist of four to seven Officers and a Captain,
often significantly larger numbers of Staff (up to 30) respond.” Id.
213. When someone is exposed to OC spray, that person must go through
decontamination. See id. at 109 n.115.
214. See id. at 3.
215. Id. at 3–4.

2020] OFFICER USE OF FORCE AND THE FAILURE OF OVERSIGHT 1423
discipline is the significant backlog of use of force incidents that require
investigation.216
The Monitor continues to report that ID is
“overwhelmed.”217 For example, between January 2019 and July 2019,
approximately 2,000 instances of officer use of force against incarcerated
individuals — many of which timed out of the administrative disciplinary
hearing 18-month statute of limitations — went uninvestigated.218
Further, by April 2020, a total of 8,400 preliminary and full investigations
of use of force incidents remained pending.219
In 2016, DOC issued a 14-point plan — an “Anti-Violence Reform
Agenda.”220 Further, DOC’s internal policy, or directive, regarding use of
force — that complies with the requirements of the Nunez Consent
Judgment — went into effect in January of 2017.221 Despite its
staff-to-inmate ratio of 1:1.3,222 in 2019, DOC embraced the reasoning
that “as the . . . overall [incarcerated] population [in jail declines], [it] is
managing a population made up of individuals with more serious
offenses.”223 Most recently, in an appearance before the BOC at its
January 2020 public meeting, DOC Commissioner Cynthia Brann and
General Counsel Heidi Grossman responded to the troubling fact of
ever-increasing rates of officer use of force, emphasizing that the
Department was making progress and in partial or substantial compliance
with 85% of the provisions outlined in the Nunez consent judgment.224
However, as the Ninth Nunez Monitor report observes, DOC remains
non-compliant “with four of the most consequential provisions of the
Consent Judgment: (1) implementation of the Use of Force Policy . . . ;

216. See id. at 174.
217. Id.
218. See Eighth Nunez Monitor’s Report, supra note 83, at 131–32 (“Pursuant to [New
York] Civil Service Law . . . § 75 . . . ‘no removal or disciplinary proceeding shall be
commenced more than eighteen months after the occurrence of the alleged incompetency
or misconduct complained of and described in the charges . . . such limitations shall not
apply where the incompetency or misconduct complained of and described in the charges
would, if proved in a court of appropriate jurisdiction, constitute a crime.’”).
219. See Ninth Nunez Monitor’s Report, supra note 79, at 41.
220. See DOC’s 14-Point Antiviolence Reform Agenda, DEP’T CORRECTION,
https://www1.nyc.gov/assets/doc/downloads/press-release/2016_Com_%20PontePresenta
tion.pdf [https://perma.cc/ZB2P-LDA8] (last visited Aug. 23, 2020).
221. See supra Section II.A.
222. Eighth Nunez Monitor’s Report, supra note 83, at 7.
223. PRELIMINARY MAYOR’S MGMT. REP., supra note 82, at 72.
224. See generally January 14, 2020 Public Meeting Minutes, NYC BD. CORRECTION
(Jan.
14,
2020),
https://www1.nyc.gov/assets/boc/downloads/pdf/Meetings/2020/january/minutes-202001.
pdf [https://perma.cc/4L2P-APDU].

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(2) timely and quality investigations . . . ; (3) meaningful and adequate
discipline . . . and (4) reducing violence among Young Inmates.”225 Brann
and Grossman offered several reasons for the increase in use of force: that
the new definition of “use of force” adopted through the Consent
Judgement captures more instances than previously understood to
actually be “force” by DOC staff, and, therefore, there is ongoing
confusion;226 that the increased number of cameras in DOC facilities lead
to the counting of more instances;227 and that, even if use of force rates
have gone up, the number of incidents resulting in serious injuries have
gone down and allegations of use of force by incarcerated people have also
gone down.228 DOC, in concert with the Monitor, devised a plan for the
review of use of force called the “Intake Squad,” which aims to review all
incidents within 25 days of their occurrence, complete preliminary
investigations in a more streamlined process,229 and act in concert with
attorneys in the Trials Division.230 After almost five years of
Monitorship, the system remains overwhelmed.
B. No Minimum Standards
The BOC has not promulgated Minimum Standards regarding use of
force, and even if the Board were to promulgate new Minimum Standards,
it would not have the authority to fire DOC staff or shut down facilities
for non-compliance.231 However, following the Eighth Nunez Monitor
Report, BOC did ask DOC to present on the report’s findings.232 Members
of the Board found DOC’s presentation insincere, as it was inconsistent
with the overall negative Monitor’s report.233 The Board requested the
DOC Commissioner herself speak to the Board to answer for the report’s

225. Ninth Nunez Monitor’s Report, supra note 79, at 4; see also supra note 79 and
accompanying text (discussing the Southern District of New York’s intervention after
finding an unconstitutional pattern and practice of excessive force against 16- and
17-year-olds).
226. See January 14, 2020 Public Meeting Minutes, supra note 224, at 37.
227. See id.
228. See id. at 38.
229. See Ninth Nunez Monitor’s Report, supra note 79, at 43–44.
230. See id. at 48.
231. See supra Section II.B.ii.
232. See November 12, 2019 Public Meeting Minutes, NYC BD. CORRECTION (Nov. 12,
2019),
https://www1.nyc.gov/assets/boc/downloads/pdf/Meetings/2019/November/minutes-2019
1112.pdf [https://perma.cc/493H-HAPC].
233. See id. at 12.

2020] OFFICER USE OF FORCE AND THE FAILURE OF OVERSIGHT 1425
contents.234 Appearing in January 2020, Commissioner Brann and
General Counsel Grossman contended that the Department was in
compliance with 85% of the Consent Judgment’s requirements.235 Board
member Dr. Robert Cohen, after pointing out that some of DOC
leadership’s “logic [was] impossible to understand,”236 then asked
whether DOC leadership actually “[has] the capacity” to meet the
mandates of the Nunez Consent Decree, given rising use of force rates after
four years of efforts and the apparent training of 10,000 DOC
employees.237 Dr. Cohen also asked if BOC Board members, the
Commissioner, and the independent Monitor’s team could view relevant
video footage of correction officers engaging in use of force, so they could
bridge the “real disconnect” between DOC staff and the Monitor’s
understanding of what actually constitutes inappropriate use of force.238
In January of 2019, BOC issued a report that, among other metrics,
found there was a 260% increase in the total number of injuries related to
staff use of force in the last ten years; the numbers went from 1,981
injuries, in 2008, to 7,139 in 2018.239 This is all despite a 32% drop in the

234. See id.
235. See January 14, 2020 Public Meeting Minutes, supra note 224, at 30; supra note 225
and accompanying text.
236. Id. at 42. The City Council appointed Dr. Robert Cohen to the Board, for the first
time in 2009, and to a second six-year term in 2017. See Eileen Grench & Rosa Goldensohn,
Mayor ‘Interfered’ with Jails Overseer on Solitary Confinement, Member Charges, CITY (Oct.
22,
2019,
10:17
PM),
https://www.thecity.nyc/2019/10/22/21210740/mayor-interfered-with-jails-overseer-on-s
olitary-confinement-member-charges [https://perma.cc/LPA7-2V32]. Dr. Cohen has
experience working as a Director of the Montefiore Rikers Island Health Services on
Rikers Island, among his leadership experience, and has served as a federal court Monitor
to oversee medical care for incarcerated people in five states, including New York. See
Board
Members,
Robert
L.
Cohen,
M.D.,
NYC
B D.
CORRECTION,
https://www1.nyc.gov/site/boc/about/robert-l-cohen-md.page
[https://perma.cc/Q3QH-YXV3] (last visited Aug. 24, 2020).
237. See January 14, 2020 Public Meeting Minutes, supra note 224, at 43–44.
238. See id. at 49. Earlier in the meeting, Brann and Grossman pointed to confusion
among DOC staff about what constitutes use of force, given the Consent Judgment
changed the definition to include a broader number of incidents. See id. at 37. During the
public comments portion of the March 2020 BOC meeting, Sarita Daftary-Steel,
community organizer with JustLeadership USA, asked the Board to update the
community on whether this meeting happened. See March 10, 2020 Public Meeting
Minutes,
N.Y.C.
DEP’T
CORRECTION
137
(Mar.
10,
2020),
https://www1.nyc.gov/assets/boc/downloads/pdf/2020_03_10_march_board_meeting_mi
nutes_and_transcript_final.pdf [https://perma.cc/2N6W-XFUE]. It is unclear whether
this meeting has occurred since then.
239. N.Y.C. BD. OF CORR., SERIOUS INJURY REPORTS IN NYC JAILS: JANUARY 2019, at
9
(2019),

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jail population.240
The report also highlighted that DOC was
underreporting serious injuries — DOC reported approximately 80%
fewer serious injuries than Correctional Health Services.241 In response to
these findings, BOC promulgated new Minimum Standards to align
DOC’s serious injury reporting with Correctional Health Services’
reporting.242 Although these new regulations will make sure DOC adheres
to a more thorough standard of reporting, BOC’s actions only begin to
tackle the underlying problem of violence — and staff-perpetuated
violence — that continues to plague New York City jails. The BOC’s
response to its serious injury findings highlights the main problem with
the Agency’s scope of authority and lack of capacity.
C. Oversight’s Silence on the Use of Force
i. The Mayor and the Mayor’s Office of Criminal Justice
In 2017, Mayor Bill de Blasio announced his Administration’s plan to
close Rikers Island, unafraid to call out the violence in New York City
jails as a major impetus.243 Since then, the focus of the de Blasio
Administration has been on the future, backing a plan to build four new,

https://www1.nyc.gov/assets/boc/downloads/pdf/Reports/BOC-Reports/2019.01.07 - BOC
Serious Injury Report - Final.pdf [https://perma.cc/2YRG-TLWM].
240. Id. at 3. In general, the report states that most injuries in the jails “were related
to inmate on inmate fights, followed by use of force (excluding allegations), accidents, and
‘other.’” Id. at 9. BOC also points out that DOC “[lacked] a single metric from which to
determine the actual number of serious injuries occurring to people in its custody.” Id. at
13.
241. Id. at 10. It is noteworthy that the health (and mental health) services within New
York City jails are run independent of DOC. In June of 2015, Correctional Health Services,
previously overseen by the Department of Health and Mental Hygiene (DOHMH),
became a Division of NYC Health and Hospitals (NYC H+H). See Health and Hospitals
Corporation to Run City Correctional Health Service, OFF. MAYOR (June 10, 2015),
https://www1.nyc.gov/office-of-the-mayor/news/383-15/health-hospitals-corporation-run
-city-correctional-health-service [https://perma.cc/6GEZ-VYZ7]; Correctional Health
Services,
NYC
HEALTH
&
HOSPS.,
https://www.nychealthandhospitals.org/correctionalhealthservices/
[https://perma.cc/W3HV-26LK] (last visited Aug. 24, 2020)). NYC H+H is a “public
benefit corporation” created in 1969. N.Y. UNCONSOL. LAW § 7384(1) (McKinney 2019).
This public-private entity touts itself as the “largest public health care system in the
United
States.”
About,
NYC
HEALTH
&
HOSPS.,
https://www.nychealthandhospitals.org/about-nyc-health-hospitals/
[https://perma.cc/A5EL-GQ84] (last visited Aug. 24, 2020).
242. See Notice of Adoption of Rules, N.Y.C. BD. CORRECTION 1–2 (2019),
https://www1.nyc.gov/assets/boc/downloads/pdf/Meetings/2019/July/final-injury-reporti
ng-rule-002.pdf [https://perma.cc/NK2W-ZVUD].
243. See Rose, supra note 41.

2020] OFFICER USE OF FORCE AND THE FAILURE OF OVERSIGHT 1427
borough-based jail facilities. 244 Although two jail facilities have closed
since 2018,245 at de Blasio’s direction, MOCJ has continued to focus on the
future of incarceration, setting a goal to reduce the capacity for jail
facilities to around 3,300 people,246 together with a “[change in] culture,
purpose and location of city jails.”247 However, by only addressing the
jails of the future, focusing most of their messaging on downward trends
in jail population,248 and construction plans,249 the Mayor and his
Administration are ignoring the present violence crisis. As of now, Rikers
Island is on track to close in 2026;250 for six more years, people will be
incarcerated in facilities that have been nearly uninhabitable since they
first opened,251 subject to unrelenting corrections officer brutality.252
Further, the Justice Implementation Task Force reports that its Culture
Change Working group is “conduct[ing] research and develop[ing]
detailed recommendations” regarding “in-custody violence.”253 Not only
is this vague, but also the entire Nunez Consent Judgement is a reaction

244. See MAYOR’S OFF. OF CRIM. JUST., STRATEGIC PLAN: FISCAL YEARS 2019–2021, at
(2019)
[hereinafter
STRATEGIC
PLAN:
FISCAL
YEARS
2019–2021],
9
http://criminaljustice.cityofnewyork.us/wp-content/uploads/2018/11/Strategic-Plan-2019
-2021.pdf [https://perma.cc/R9DZ-7WXL].
245. See Sydney Pereira, Brooklyn’s House of Detention Closes Under de Blasio’s New
Jails
Plan,
GOTHAMIST
(Jan.
3,
2020,
4:51
PM),
https://gothamist.com/news/brooklyns-house-detention-closes-under-de-blasios-new-jails
-plan [https://perma.cc/PC52-GEWH]; New York Is Leading a Historic Decarceration
Plan. Our Plan Is to Close Rikers Island and Replace It with a Smaller Network of Modern
Jails., A ROADMAP TO CLOSING RIKERS, https://rikers.cityofnewyork.us/
[https://perma.cc/RR38-479N] (last visited Sept. 17, 2020). A facility slated to close in
March 2020 had to reopen briefly to house people with COVID-19. See Chelsia Rose
Marcius, Coronavirus Prompts Reopening of Shuttered Jail on Rikers Island, DAILY NEWS
(Mar.
23,
2020,
2:08
PM),
https://www.nydailynews.com/coronavirus/ny-coronavirus-correction-department-reope
n-jail-20200323-dq2bn3hap5g5bkjagjzsmkdxie-story.html
[https://perma.cc/6R29R9HB].
246. As of March 2020, New York City jails had an average daily population of around
CORRECTION,
7,200
people.
See
Facilities
Overview,
DEP’T
https://www1.nyc.gov/site/doc/about/facilities.page [https://perma.cc/Q3X8-ELQH] (last
visited Aug. 23, 2020).
247. See STRATEGIC PLAN: FISCAL YEARS 2019–2021, supra note 244.
248. See Smaller Safer Fairer: The Jail Population in NYC: Under 6,000 in 2020; 3,300
by 2026, MAYOR’S OFF. CRIM. JUST. 2 (2019) [hereinafter The Jail Population in NYC],
https://rikers.cityofnewyork.us/wp-content/uploads/Rikers-scorecard__NovemberDecem
ber-2019.pdf [https://perma.cc/7NVF-4LKV] (last visited Aug. 24, 2020).
249. See id.
250. See id.
251. See supra Section I.A.
252. See supra Section I.C.
253. See The Jail Population in NYC, supra note 248, at 3.

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and an attempt to solve DOC’s broken culture of excessive and
unnecessary violence. As the City’s chief executive, the Mayor has
unfettered authority to tackle the issue of officer use of force in jails today
— he can fire the DOC Commissioner,254 push for a reduction or
redirection of funds for DOC’s budget, and possesses the discretion to
appoint more outspoken members to BOC. In fact, in October of 2019,
Mayor de Blasio declined to reappoint BOC board member Bryanne
Hamill — who was outspoken on the issue of solitary confinement — a
move seen by advocates as silencing a progressive voice on the Board.255
By remaining silent on the use of force, however, the de Blasio
Administration has decided that the everyday reality in the City jails is
just not their problem.
ii. New York City Council
In October 2019, the New York City Council officially voted to close
Rikers Island and adopted a plan, in concert with the Mayor, to revamp
the City’s approach to criminal justice and incarceration.256 Although the
Independent Commission, A More Just New York, is an example of the
City Council leading on addressing the City’s problematic correctional
system, the Independent Commission’s report did not specify the ways in
which DOC should tackle the issue of use of force.257 The Commission
simply acknowledges systemic violence in City jails,258 and points to the
ongoing Nunez litigation and 14-point plan on quality staff training as
antidotes to excessive use of force.259 The Committee on Criminal Justice
did hold a hearing in February 2020, where it compelled DOC
Commissioner Brann to testify on the lack of compliance with the Nunez
Consent Judgment.260 Unfortunately, legislation focused on the future of
New York jails, and discussion with DOC’s current leadership does not
address the crisis of violence happening in the jails today. The Council’s

254. See supra Section II.B.ii.
255. See Reuven Blau & Rosa Goldensohn, De Blasio Ousts Key Solitary Confinement
Foe
as
Reform
Nears,
CITY
(Oct.
17,
2019,
5:23
PM),
https://www.thecity.nyc/2019/10/17/21210752/de-blasio-ousts-key-solitary-confinementfoe-as-reform-nears [https://perma.cc/GM6R-8TRP].
256. See Rikers to Close, supra note 44.
257. See generally A MORE JUST NEW YORK CITY, supra note 162.
258. See id. at 13–14.
259. See id. at 85–86.
260. See Mark Hallum, City Council Presses Corrections Department to Explain Jail
Violence
Spike,
AMNY
(Feb.
3,
2020),
https://www.amny.com/politics/doc-provides-nuance-for-uptick-in-violent-incidents-in-j
ail-facilities/ [https://perma.cc/5SVZ-PHAH].

2020] OFFICER USE OF FORCE AND THE FAILURE OF OVERSIGHT 1429
own analysis of the DOC budget notes that, given DOC efforts and the
monetary investments in tackling the issue of officer perpetrated violence,
“it is alarming that [use of force] incidents have not been declining.”261
Council members have the power to pass new legislation around use of
force and actively seek the reduction or redirection of DOC’s funding.
iii. Department of Investigation and District Attorneys
By the end of 2019, only eight other cases were pending with the DOI
or District Attorneys.262 The Ninth Nunez Monitor writes the slow pace
with which outside law enforcement considers the cases referred to it has
repercussions for effective discipline; it is only after referred cases are
declined that an administrative disciplinary proceeding can begin.263
Both of these entities have powerful enforcement tools specifically
designed to hold people accountable for their actions, and yet, when it
comes to officer use of force, using these tools is a non-priority.
D. New York State Would Rather Play Politics
New York State government’s involvement in the day-to-day
operations of New York City jails can, at best, be described as arbitrary
and, at worst, as politically motivated. For example, SCOC issued one
report detailing the brutal death of an incarcerated person on Rikers
Island in May of 2017.264 However, the ongoing nature of the systemic
violence in New York City jails,265 and the number of deaths that have
occurred in them,266 should warrant far more than only one report, given
that SCOC has a duty to investigate the deaths of all incarcerated persons
in New York State.267 Furthermore, the dynamic between Mayor de

261. FINANCE DIVISION BRIEFING PAPER, supra note 94, at 19.
262. See Ninth Nunez Monitor’s Report, supra note 79, at 160–61.
263. See id. at 161–62.
264. See Michael Schwartz & William K. Rashbaum, Rikers Deemed Too Dangerous for
TIMES
(May
5,
2017),
Transferred
Inmates,
N.Y.
https://www.nytimes.com/2017/05/05/nyregion/rikers-island-transferred-inmates.html
[https://perma.cc/AK6N-RCEA].
265. See supra Section I.C.
266. See David Brand, More Than 370 People Have Died in NYC Jails Since 2001,
DAILY
EAGLE
(Oct.
23,
2019),
BROOKLYN
https://brooklyneagle.com/articles/2019/10/23/deaths-nyc-jails/
[https://perma.cc/54T4-2UY3]. Seven people committed suicide while incarcerated in New
York
City
jails
in
2019.
See
Inmate
Deaths,
OPEN
DATA,
https://data.cityofnewyork.us/Public-Safety/Inmate-Deaths/f64t-5yiv
[https://perma.cc/4GWF-KHTL] (last visited Aug. 19, 2020).
267. See N.Y. CORRECT. LAW § 47-1(a).

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Blasio and Governor Cuomo seems to be the reason why SCOC comments
on officer use of force at all. For example, in February 2018, SCOC issued
a report detailing, among other facility failures, how correction officers
killed an incarcerated man in a Rikers’ jail with use of force; the report
specifically criticized the Rikers Island closure plan as envisioned by the
de Blasio Administration.268 The report warned that because of the
“City’s inaction and protracted ten-year proposal,” SCOC would
“examine steps to expeditiously close Rikers . . . to ensure that the
constitutional rights of inmates and staff are protected.”269 Later that
month, SCOC Chairman Thomas Beilein sent a letter to DOC
Commissioner Brann specifying that housing areas in a facility on Rikers
Island needed to be “vacated by close of business” due to failures in
safety.270 The de Blasio Administration stated State action “smacks of
politics, and not sound policy,” and then sued to block the order.271 The
housing areas were not vacated and Rikers Island is still very much
open.272 Given that SCOC, as an oversight body, has the authority to
close prisons and jails, it is unfortunate that it has not taken bolder action
to better the conditions for people incarcerated in New York City.273

268. THE WORST OFFENDERS, supra note 203, at 37 (finding an inmate, referred to as
“Individual 9,” died by use of force by officers). The report also states that DOC officers
falsified documentation in connection to this incident. See id.
269. Id. at 3.
270. Letter from Thomas A. Beilein, Chairman, N.Y. State Comm’n of Corr., to Cynthia
Brann,
Comm’r,
N.Y.C.
Dep’t
of
Corr.
2
(Feb.
28,
2018),
https://www.politico.com/states/f/?id=00000161-f816-de1c-abff-f8bf5d7e0000
[https://perma.cc/EVN3-XL38].
271. Yoav Gonen, De Blasio Sues to Block Cuomo from Closing Rikers Facility, N.Y.
POST
(Mar.
5,
2018),
https://nypost.com/2018/03/05/de-blasio-sues-to-block-cuomo-from-closing-rikers-facility
[https://perma.cc/PL4A-NVJJ].
272. See Ninth Nunez Monitor’s Report, supra note 79, at 281–82 (documenting the
continuing security failures and safety concerns in RNDC, which houses the majority of
all 18-year-old males on Rikers Island. The use of force rate against 18-year-olds is nine
times higher than the average used against adults).
273. This is unsurprising, however, given that through a Freedom of Information Law
request covering May 2017 to January 2020, journalists obtained SCOC death reports
revealing that on average, it took SCOC two-and-a-half years per case to complete an
investigation. See Reuven Blau & Carson Kessler, Many Deaths at New York State Prisons
(Jul.
5,
2020,
6:15
PM),
Are
Preventable,
Review
Finds,
CITY
https://www.thecity.nyc/2020/7/5/21312137/new-york-state-prisons-death-preventable
[https://perma.cc/QR27-B6PP].

2020] OFFICER USE OF FORCE AND THE FAILURE OF OVERSIGHT 1431
E. Yet Another Oversight Hurdle: Office of Administrative Trials and
Hearings’ Precedent
OATH — where disciplinary proceedings for DOC officers occur — is
an administrative court, and, thus, the ALJs who preside over the
hearings consider precedent from previous administrative decisions when
making decisions regarding staff discipline.274 The Ninth Nunez Monitor
pointed out that OATH disciplinary proceedings’ precedent for DOC
officers actually runs counter to the goals of the Consent Judgment’s
requirements for timely and meaningful discipline.275 The Nunez Consent
Judgment requires the imposition of certain disciplinary outcomes
regardless of factors, such as the severity of injuries.276 ALJs, however,
under OATH precedent, would consider factors such as “severity of the
use of force” or “whether or not the inmate sustained a serious injury”
when determining what penalty to impose on an officer.277 Thus, the
Consent Judgment may proscribe certain disciplinary outcomes for a
particular action that an ALJ at OATH ultimately has the discretion to
not impose, putting DOC in an “untenable position” to conform to the
Consent Judgment.278 Therefore, OATH’s imposed penalties result in
“disciplinary outcomes . . . [that] are not proportionate with Staff
misconduct,” which “impacts DOC’s ability to impose meaningful
discipline,”279 a central tenet of the Consent Judgment. This very tension
is addressed in the Remedial Order filed by the parties in August 2020.280
IV. STEPS TO STRENGTHEN OVERSIGHT
Part IV of this Note offers three proposals to meaningfully change
oversight in New York to effectively address the problem of constant and
excessive correction officer use of force: (1) increase BOC’s funding,

274. See Ninth Nunez Monitor’s Report, supra note 79, at 208.
275. See id.
276. See Nunez Consent Judgement, supra note 78, at 25–26 (noting that the
misconduct of “[d]eliberately providing materially false information in a Use of Force
Report or during an interview regarding a Use of Force Incident . . . [and] [d]eliberately
failing to report Use of Force by a Staff Member” will result in penalties ranging from a
minimum of a 30-day suspension without pay which may include a loss of accrued
vacation days, or a 15-day suspension without pay plus a one-year probation period
stipulating that any Use of Force Violation or policy violation will result in termination).
277. Seventh Report of the Nunez Independent Monitor at 157–58, Nunez v. City of
New
York,
11
Civ.
5845
(S.D.N.Y.
2012)
(Apr.
18,
2019),
http://tillidgroup.com/wp-content/uploads/2019/04/7th-Monitors-Report-04-18-19-As-Fil
ed.pdf [https://perma.cc/B7ZP-YDLN].
278. Id. at 158.
279. See Eighth Nunez Monitor’s Report, supra note 83, at 184.
280. See supra Section I.C.

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change its composition, broaden its enforcement power, and demand it
promulgates Minimum Standards with regards to use of force; (2)
mandate communication between all already existing oversight bodies;
and (3) move all use of force investigations from within DOC to DOI, and
tackle the ineffectiveness of OATH precedent when it comes to
disciplining correction officers. Although significant hurdles stand in the
way of actually achieving these goals, like an amendment to the City
Charter, if instituted, they would positively impact the daily lives of
incarcerated people who desperately need someone to take impactful
action now.
A. Board of Correction: Promulgate Minimum Standards, Make Funding
Independent, Diversify Composition, and Broaden Enforcement Authority
BOC must issue Minimum Standards for correction officer use of force.
These standards can build on the language DOC already agreed to in the
Nunez Consent Judgment and incorporate language from DOC’s use of
force policy; for example, the minimum standard can state outright that
“all Staff have a duty to protect incarcerated people from harm, and have
a responsibility to intervene to de-escalate confrontations as soon as it is
practicable and reasonably safe to do so.”281 As long as BOC is charged
with issuing standards that govern the “care, custody, correction,
treatment, supervision, and discipline” of people in DOC custody,282 it is
unclear how use of force can fall outside of its mandate. Not having these
Minimum Standards demonstrates that the Agency is operating with
blinders on and is unwilling to embrace its purpose.
For these new Minimum Standards to actually make a difference, three
other changes to BOC are necessary. First, BOC’s budget needs to be
independent of the whims of New York City’s budget process. Richard
Wolf, former Executive Director of BOC, has argued that “funding has
been the Board’s Achilles heel.”283 While the New York City budget has
allocated $1.4 billion to DOC for 2020, it allocated $3.1 million to BOC.
BOC’s budget, therefore, represents only 0.22% of the total amount of
money going to DOC. The City’s investment into oversight outside DOC’s
structure has to be more significant. Therefore, much like the 2019

281. Nunez Consent Judgement, supra note 78, at 8. Further, the Minimum Standards
should contain a provision that requires the DOC Commissioner to both submit a written
report and appear in front of the Board to report on use of force issues within DOC
facilities.
282. About, NYC BD. CORRECTION, supra note 122.
283. Wolf, supra note 123, at 1622.

2020] OFFICER USE OF FORCE AND THE FAILURE OF OVERSIGHT 1433
amendments to the Civilian Complaint Review Board (CCRB),284 an
amendment should be made to the City Charter to directly tie BOC’s
budget to a percentage — higher than .22% — to DOC’s budget. With
this expanded capacity, BOC could hire more staff and more effectively
be the “eyes and ears” within the City jails.285 If one of the BOC’s main
purposes is to publicize the everyday reality of incarcerated people, this
expanded staff could assist in collecting narratives of victims of correction
officers’ brutality and work to support the promulgation of use of force
Minimum Standards.
Second, people who have personally experienced incarceration in New
York City jails needs to serve on the Board. This would hopefully give
the Board more courage to confront DOC and embrace a more adversarial
approach. Before 1977, the Mayor appointed all nine members to BOC,
whereas now, the Mayor appoints three, the City Council appoints three,
and the Mayor appoints three through nomination from presiding justices
of two city appellate courts.286 The legislature could make an amendment
to the City Charter, similar again to the 2019 CCRB amendments,287 to
change BOC’s composition. Such an amendment could expand the Board
by three members, or alternatively replace one of three members that are
nominated by each branch of government to be selected by the Public
Advocate with certain requirements attached.
For example, a
requirement could be that at least one member has spent time
incarcerated in a DOC facility. This change would ensure the people most
affected by incarceration have their voices represented on the Board.
Then, hopefully, the issues of violence and excessive correction officer use
of force, which people experience daily in jail, would be discussed more
openly and frequently. These new members could inspire BOC to act with
the urgency the problems require.
Third, the New York City Charter needs to be amended to give the
Board explicit enforcement power, such as the unquestionable ability to
sue DOC, impose penalties, fire key staff members, and close facilities for
lack of compliance with Minimum Standards. Professor Michele Deitch,
in her article “Distinguishing the Various Functions of Effective Prison

284. See
Ballot
Questions,
CHARTER
2019
NYC
(2019),
https://static1.squarespace.com/static/5bfc4cecfcf7fde7d3719c06/t/5d83de07e707a67e06d
1ad9e/1568923145884/BallotQuestions_English.pdf
[https://perma.cc/JG4X-56DQ]
(asking in Ballot Question 2 to raise CCRB’s funds to increase employee headcount equal
to 0.65% of the Police Department’s).
285. See id.
286. N.Y.C. CHARTER § 626(a); supra Section II.B.i.
287. See Ballot Questions, supra note 284.

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Oversight,” lays out seven core functions that must co-exist in various
bodies to make for effective oversight: regulation, audit, accreditation,
investigation, legal reporting, and inspection and monitoring.288 In
Deitch’s framework, the Board serves a regulatory function when it sets
Minimum Standards for the treatment of people in DOC custody. Deitch
writes governmental entities that exercise the regulation function need to
be able “to wield a hammer over the correctional agency.”289 Therefore,
in addition to setting these standards, BOC needs to have “the power to
enforce . . . standards and policies through . . . the imposition of fines, the
ability to close an institution, or the ability to hire or fire directors.”290
Right now, BOC engages primarily in inspection and monitoring. If BOC
were to promulgate Minimum Standards for the use of force, with
expanded enforcement power, it would actually be able to close jail
buildings where staff continue to violate these standards.
B. Oversight Actors Should Be Connected
Part II showed the varied authorities different agencies, institutions,
and elected officials have over New York City jails — the web of jail
oversight.291 As Deitch points out, not one institution can “meaningfully
serve every function” of oversight.292 Thus, one way to improve the
efficiency and scope of New York City jail oversight would simply be to
connect all of the players. The problem of excessive and unnecessary
officer use of force could become manageable if the powers of each
oversight actor complemented each other, instead of existing in silos. For
example, SCOC and the BOC do not engage in any ongoing
communication and, therefore, do not act in concert with one another.
The scope of SCOC’s legal authority is broad,293 but SCOC seems to wield
this power sparingly. Further, much of the law that determines the
SCOC’s power and duties focuses on cooperation with local correctional
facilities. However, there is no law that compels SCOC to actively
communicate with BOC. If SCOC were required to develop a working
relationship with BOC, then this could expand the capacity of both
agencies, provide more unified investigation, and publicize challenges

288. Michele Deitch, Distinguishing the Various Functions of Effective Prison Oversight,
30 PACE L. REV. 1438, 1439 (2010).
289. Id. at 1440.
290. Id.
291. See supra Sections II.A–C.
292. Deitch, supra note 289, at 1440.
293. See supra Section II.C.i.

2020] OFFICER USE OF FORCE AND THE FAILURE OF OVERSIGHT 1435
more effectively. Ideally, SCOC could close a jail facility that BOC points
out is particularly egregious when it comes to levels of violence.
C. Move All Use of Force Investigations to Department of Investigation
and Address Problematic Office of Administrative Trials and Hearings’
Precedent
Oversight must exist outside the closed system which it regulates. As
shown consistently through the Nunez Monitor’s Reports, the ID within
DOC has been unable to effectively investigate use of force incidents.294
Instead, all use of force investigations — and the necessary expansion of
investigative staff — should be housed under DOI, an independent
government agency that already has the authority to take on these
investigations.295 DOI has the power to refer any investigation to the
District Attorney for criminal prosecution.296 Once DOI is in charge of
all use of force investigations, the Agency should also be able to refer cases
to the non-criminal disciplinary process OATH oversees.
However, as discussed above,297 there is a discordance between the
precedent in OATH’s case law and the Nunez Consent Judgment’s goals
with regards to staff discipline, that the independent Monitor observes “is
undermining [DOC’s] overall effort to impose meaningful and timely
discipline.”298 At the same time, another problem is quickly approaching:
superfluous DOC staff. The City’s plans to close Rikers Island by 2027
and replace all jail facilities with four borough-based buildings depends
on drastically reducing the number of people in jail to an estimated 3,300
people.299 The hope is that changes to bail laws will accomplish the
drastic reduction, as judges will no longer be able to set bail amounts for
lower-level offenses.300 As the City and State’s public health response to
294. See supra Section III.A.
295. See supra Section II.B.v.
296. See id.
297. See supra Section III.E.
298. Eighth Nunez Monitor’s Report, supra note 83, at 184.
299. See Reuven Blau & Rachel Holiday Smith, Delays on Rikers Replacement Jails
Buoy Critics, Even as Planning Moves Ahead, CITY (July 8, 2020, 2:13 PM),
https://www.thecity.nyc/2020/7/8/21317561/delays-on-rikers-island-replacement-jails-bu
oy-critics [https://perma.cc/WP48-L9JW].
300. See The Jail Population in NYC, supra note 248; REMPEL & RODRIGUEZ, supra
note 49; see also Kate Torgovnick May, How the Bail System in the US Became Such a Mess
—
and
How
It
Can
Be
Fixed,
TED
(Aug.
31,
2018),
https://ideas.ted.com/how-the-bail-system-in-the-us-became-such-a-mess-and-how-it-ca
n-be-fixed/ [https://perma.cc/S7TM-BTV8] (noting that “nearly 70 percent of the people
held in local jails [in the U.S.] are there for one reason: they don’t have enough money to
pay bail”).

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COVID-19 came to include releasing people unnecessarily in jail and
reducing the number of people taken into custody, the jail population in
New York City has actually gone down to about 4,363.301 DOC needs to
get rid of an ever-increasing number of superfluous staff. At the same
time, there remains an egregious lack of consequences for many officers
who engage in unnecessary use of force. Therefore, bolstering the OATH
process and putting resources into solving the tension between the
Consent Judgment and OATH precedent serves the dual purpose of
ensuring proportionate discipline and weeding out staff uncommitted to
culture change. The Nunez Remedial Order, filed by the parties in August
2020, addressed the OATH precedent problem, and required the City to
“advise all OATH [ALJs] who handle proceedings relating to [use of
force] violations” of the particular disciplinary outcomes dictated by the
Consent Judgment within 30 days from the Court’s endorsement.302
Thus, resolving the issue of OATH precedent and moving all use of force
investigations to DOI would lead to a more independent and streamlined
process for disciplining, and potentially prosecuting, problematic DOC
staff.
CONCLUSION
As civil rights attorney Bryan Stevenson stated, “the true measure of
our character is how we treat the poor, the disfavored, the accused, the
incarcerated, and the condemned.”303 Despite all of the achievements in
hard-won court battles and protests that advocates have made,304 prisons
and jails have always been and will continue to be inhumane places. With
time and patient activism, one day, the majority of people in the United
States may fall out of our collective “love affair with imprisonment.”305
Abhorrent conditions, brutality, and violence have been a part of New
York City jails’ history from their inception.306 Prisoners’ rights
advocates, attorneys, and incarcerated people have been responsible for
ensuring fundamental rights for those within City facilities. The Nunez
Consent Judgement is both a culmination and a necessary accountability

301. See New York City Jail Population Reduction in the Time of COVID-19, MAYOR’S
OFF.
CRIM.
JUST.
(2020),
http://criminaljustice.cityofnewyork.us/wp-content/uploads/2020/04/MOCJ-COVID-19-J
ail-Reduction.pdf [https://perma.cc/97RM-JWTT]; see also supra Section I.A.
302. Nunez Remedial Consent Order, supra note 86, at 7.
303. BRYAN STEVENSON, JUST MERCY: A STORY OF JUSTICE AND REDEMPTION 18
(2015).
304. See Marton, supra note 32, at 534–53; supra Sections I.B–C.
305. Lasker, supra note 2, at 429.
306. See supra Section I.A.

2020] OFFICER USE OF FORCE AND THE FAILURE OF OVERSIGHT 1437
measure for DOC and correction officers, but it can only go so far. To
truly take a step forward, the oversight entities responsible for setting the
rules in which the DOC can act must take ownership and responsibility
for the failures of New York City’s carceral system. Ultimately, the City
has adopted a plan to shift the way people are held in detention in the
City, albeit too slowly. However, for these plans to have any chance of
success — plans that purport to do away with DOC’s culture of excessive
and unnecessary use of force — changes to the web of jail oversight in the
City need to be made, and these oversight actors need to embrace their
role in shaping the future.
Robin Campbell, a former director of media relations for DOC, wrote
an article providing insight into the changing media narratives around
what it is like to be incarcerated within New York City jails.307 He
concludes his article, writing, “[b]laming those who walk a jail’s corridors
for a ‘culture of brutality’ is too easy. Responsibility also lies with the
leaders of these institutions, the politicians who fund and oversee them
and . . . the citizens of the city, who set the expectations.”308 Although
shifting the way New York City conducts jail oversight can only happen
over time and with considerable effort, this Note aims to coalesce
disparate information and add to the many voices calling out for an end
to this violence.

307. Robin Campbell, It Was My Job to Tell the Truth About Jails, MARSHALL PROJECT
(July
25,
2019,
10:00
PM),
https://www.themarshallproject.org/2019/07/25/it-was-my-job-to-tell-the-truth-about-ja
ils [https://perma.cc/L5V2-DE2R].
308. Id.