By Ashley Southall and Jan Ransom, July 22, 2018
Three years ago, when New York City banned solitary confinement for inmates younger than 22 and curtailed it for others, Mayor Bill de Blasio held up the policy as a model for reform.
But since the rules were approved, the city has stepped up a longstanding practice of transferring some inmates to correctional facilities elsewhere in the state where no such restrictions exist. Dozens of New York City inmates, including several teenagers, have ended up in solitary confinement.
Transfers of inmates 21 and younger increased sharply starting in 2015, the year the city adopted the solitary ban, and except for a drop in 2017, the number of such transfers has remained well above the levels seen before the ban, according to Correction Department data.
At least 10 young inmates have been transferred from New York City this year, including eight who are in solitary at one upstate jail, the Albany County Correctional Facility, according to their lawyers.
New York City has long had the power to make such transfers if an inmate is especially vulnerable to attack or presents a high risk to other inmates or to guards. But the sharp overall increase in transfers since the solitary ban was put into place for city jails suggests that transfers to other jurisdictions have become an end-run around the city’s own rules on solitary confinement.
Defense lawyers say transferring inmates allows city officials to avoid responsibility for harsher conditions of confinement. A few of the lawyers are challenging the transfers in court on the grounds that they violate inmates’ due process rights, as well as state law and city rules.
Peter Thorne, the chief spokesman for the Correction Department, said transfers are based on “safety or security” and are not used as punishment.
Isolation of inmates has been shown to heighten risks of suicide and depression, especially among young people, and the city has not only limited the use of solitary confinement, but has begun moving 16- and 17-year-olds off Rikers Island to comply with a new state law that raised the age at which a person could be charged as an adult to 18.
But some of the reform efforts have faced resistance, most notably from the union representing guards, which has said serious sanctions like solitary must be preserved for violent inmates.
Inmates who have been charged with assaulting guards are among those most often transferred, in part because the Correction Department cannot ensure their safety.
Martin F. Horn, who was correction commissioner from 2003 to 2009, said that if such inmates were harmed, it could raise the specter of payback: “It makes sense to send them elsewhere where they’re not ‘hot,’” he said.
But inmates said the transfers do not make them safer. All the inmates sent to Albany said through their attorneys or in interviews that they have been beaten by guards and put into solitary confinement for months.
Steven Espinal, 19, who prosecutors say led an attack in February that left a Rikers guard’s spine fractured, said guards stomped and kicked him so badly when he arrived that he lost hearing in his left ear and passed blood in his urine. He was hospitalized, then sentenced to 600 days in solitary confinement for violating jail rules, his lawyer said.
While they beat him, Mr. Espinal said in an interview, the guards kept saying, “This ain’t New York City. We do what we want.”
Jesse Hoberman-Kelly said he learned of the transfers in February, when he began representing one of Mr. Espinal’s co-defendants, Samson Walston, 19. Both teenagers, and their two co-defendants, are being held in Albany awaiting trial on a charge of gang assault for the attack on the Rikers guard, Officer Jean Souffrant, which was captured on video.
Sheriff Craig D. Apple Sr., who runs the Albany jail, dismissed the inmates’ claims of abuse as “frivolous” and an attempt to force their return to the city.
“My staff has not done anything to these people whatsoever,” Sheriff Apple said.
He said it was the jail’s policy to isolate inmates who have assaulted staff, regardless of their age, where the incident occurred, or restrictions in the jurisdiction that sent them to Albany.
The solitary rules put in place in 2015 expanded a restriction that only had applied to 16- and 17-year-olds.
Previously, the city sent few inmates 21 and younger out of town each year, according to city data. But the number rose to 16 in the first two years of the ban. It declined in 2017, but rose again this year. Currently, 10 young New York City inmates are being held in outside jails, according to the Correction Department. There are currently 811 inmates younger than 21 in the city’s jails.
Detailed information about how transfers have been used under Mr. de Blasio was not available because orders granted for safety reasons were destroyed three years after they expired. That practice ended in April, when the state Commission of Correction, which approves transfers, began collecting data about inmates, including age, ethnicity, race and sex.
The Correction Department operates eight jails on Rikers Island and four others around the city. Together the facilities can hold about 11,000 people, and the agency has more than 10,400 uniformed officers.
But with fewer people being detained, the jails are well below capacity. David A. Fullard, a former correction captain who worked at Rikers for 30 years, said it was a shame that the city has been unable to find a way to house high-risk inmates without relying on other jurisdictions.
“You can’t figure this out? You can’t pull a consultant to help you with that?” Mr. Fullard, a professor at Empire State College, said. “It’s embarrassing.”
The case of Kalief Browder, a Bronx teenager who spent much of a three-year stint awaiting trial in solitary confinement at Rikers Island, highlighted the dangers associated with prolonged isolation. After prosecutors dropped their case, he committed suicide in 2015. After his death, Mr. de Blasio said, “Kalief’s story helped inspire our efforts” at Rikers.
Martin Guggenheim, a law professor at New York University, said what had been “a great victory” is now being circumvented by a practice that he believes is legally dubious.
The Correction Department has implemented alternatives to solitary confinement, including secure units where inmates receive therapy and counseling. States such as Mississippi, California, Colorado, Illinois and Washington have taken steps toward reducing the number of inmatesplaced in solitary.
Since city jails implemented alternatives to solitary confinement for inmates 21 and younger, officers have complained they lost an effective tool for controlling young inmates. Elias Husamudeen, the president of the Correction Officers’ Benevolent Association, said the city is trying to have it both ways by banning youth from solitary in its jails but transferring them to jails where they can be isolated.
“The city, the mayor would rather have someone do what we could do and pay hundreds of dollars a day to have them there,” he said.
Between July 2013 and June 2017, the Correction Department said it paid more than $560,000 to jails in other counties to house city inmates. Albany County receives $175 per inmate each day, Sheriff Apple said.
Inmates sent to the Albany jail described a pattern of abuse that begins with made-up misconduct and weapons violations. In written complaints and in interviews with The New York Times and their lawyers, they said the charges serve as a pretext for beating and isolating them.
Those charged with assaulting Rikers guards described taunts from guards in Albany that suggest retaliation: “‘This is for Rikers,’” Nazeem Francis, 19, told his lawyer, Stuart J. Grossman. Mr. Francis and Devin Burns, 18, are also charged with assaulting Officer Souffrant.
Mr. Espinal was taken to Albany Medical Center, where doctors scanned his body and inserted a catheter in his penis, his lawyer, Ruben D. Fernandez, said.
The Correction Commission, which is managed by a three-member board appointed by Gov. Andrew M. Cuomo and oversees local jails and state prisons, is investigating eight grievances filed by two city inmates who are being held in Albany, according to its spokeswoman, Janine Kava.
Natalie Grybauskas, a spokeswoman for Mayor de Blasio, said the city views transfers as the safest option for the inmates, but she conceded, “That doesn’t eliminate the possibility of any violence happening in any other jail.”
A spokesman for the Board of Correction, the city’s jail oversight panel, said it wants to see the practice minimized.
Albany is a two-and-a-half hour drive from New York City, and lawyers complain that inmates sent to the jail have missed court dates because they are transported late or not at all, prolonging their cases and pressuring them to accept plea deals.
The young men accused of assaulting Officer Souffrant were already facing serious charges like attempted murder, assault and gun possession. Correction officials believe they are gang members, an affiliation that leads to tougher bail conditions and sentences. Three of them had weapons when they arrived in Albany, a Bronx prosecutor recently said in court.
Last year, Mr. Cuomo, a Democrat, introduced regulations broadening oversight of solitary confinement in local jails, which the state commission is expected to adopt this summer. The regulations require jails to explain in writing any decision to place inmates in solitary for more than a month or to restrict or deny recreation and services.
In June, legislation that would have restricted the use of solitary in state prisons and local jails passed the Democrat-led Assembly, but stalled in the Republican-controlled Senate.
But even without these changes, advocates for inmates say the city’s practice of transferring young inmates appears to violate current law, which requires correction officials to send inmates to the closest suitable facilities and to take into consideration their lawyers’ and families’ ability to reach them.
Nancy Ginsburg, the director of The Legal Aid Society’s Adolescent Intervention and Diversion Project, which is challenging Mr. Francis’s transfer, said, “I think that nobody’s really paying attention to that.”