New Correction Tab for Illegal Strip-Searches; Policy Shift Spurred By $50M Payout Not Enacted

By REUVEN BLAU

The Correction Department is reviewing why the agency failed to implement a policy to stop strip-searching nonviolent offenders, despite a 2002 court settlement that cost the city $50 million for similar searches.

FELL THROUGH THE CRACKS: Assistant Deputy Wardens/Deputy Wardens Association President Sidney Schwartzbaum (left) said the Correction Department had saddled his members with excessive paperwork, leaving them insufficient time to ensure compliance with a court settlement banning strip-searches of inmates charged with misdemeanors. But Correction Officers Benevolent Association President Norman Seabrook (center) said Correction Commissioner Martin Horn should re-examine the policy with an eye toward allowing searches of inmates who in the past had been convicted of violent crimes.

Critics of the department last week questioned how what has been labeled as a "miscommunication" could occur, noting that the city now may owe up to $10 million more under the latest agreement.

Unions Point Upward

Joining the chorus of disbelief, the unions representing uniformed correction officers asserted that the department officials responsible should be held accountable.

The department Oct. 4 acknowledged that it failed to comply with the agreement to stop all strip-searches of inmates waiting trials on misdemeanor charges at Rikers Island.

Correction Commissioner Martin F. Horn - who apparently only became aware of the issue several months ago - is examining why the policy was never implemented after the original settlement.

"We are looking to determine how it happened that the policy that we had in place, which met the requirement of the law, was not consistently applied," said department spokesman Stephen J. Morello. "We will follow that review wherever it takes us."

When Mr. Horn was appointed Commissioner in early 2003, the briefing papers he received stated that the department had changed its practice and was no longer routinely strip-searching detainees, according to Mr. Morello.

Questions Priorities

The union representing second- and third-level correction supervisors last week criticized the department for bogging down its members with unnecessary paperwork.

"The Wardens and Deputy Wardens have been relegated to their office computers, completing time-consuming, redundant, duplicative reports that are counter-productive to 'hands-on' management," said Sidney Schwartzbaum, president of the Assistant Deputy Wardens/Deputy Wardens Association. "The Department of Correction would be better served if managers spent more direct interaction with evaluation and training staff, assessing their facilities for security concerns, and ensuring legal compliance with court orders."

Correction Captains Association President Ronald Whitfield said he wants the department to use the same strict standard of discipline for any officials found liable.

"The department has always held our Captains accountable if they might have made an error," he remarked during a phone interview. "If anybody in the high echelon was responsible, they should be held accountable too, just like my Captains."

Puts Onus on Horn

Norman Seabrook, president of the Correction Officers Benevolent Association, said that the officers conducting the strip-searches were following directions given to them by their supervisors. "Correction Officers don't make policies and procedures, we enforce policies and procedures," he remarked during an Oct. 10 phone interview.

The communication breakdown, he continued, is something that Commissioner Horn is going to have to "swiftly" address.

The union president also noted that suspects facing trial on misdemeanor charges often have past violent histories that include multiple felony convictions. But under the original settlement, the department cannot strip-search those new detainees when they first enter the jail unless there is reasonable suspicion.

"You have to look at that person's record," Mr. Seabrook contended. "What if that person was known to be assaultive?"

Searches Once Standard

The legal agreement, which was reported in the New York Times, was reached in Federal District Court in Manhattan. The case was brought by a group of inmates who had disputed the searches, which they contended violated their rights.

Prior to the 2002 settlement, all new inmates were required to submit to searches that were often conducted in front of 10 or 12 other inmates. During the searches, officers would check their entire bodies, including anal cavities.

In 2001, the U.S. Court of Appeals for the Second Circuit concluded that strip-searches for misdemeanor suspects violated the law, barring a legitimate suspicion that the individual was hiding contraband. Inmates facing felony charges are allowed to be strip-searched upon admittance, and misdemeanor suspects can be searched when they return to the jail from court.

Under a settlement that was later amended, the Giuliani administration agreed to pay up to $50 million to the thousands of individuals who were improperly searched before they were arraigned in court.

Lawyer's Discovery

In 2005, Richard D. Emery got involved in the case, arguing that the $750 paid to each inmate searched once was too low. He also contended that the first settlement didn't cover all the affected inmates.

While working on that case, he discovered that the department was still strip-searching misdemeanor suspects and not complying with the settlement.

Notably, Deputy Chief Mark Cranston testified during his deposition that he was not sure the new policy was being implemented. "I can only speak to the promulgation of the policy and not the implementation," he said. "Because it's not in my purview to make sure that policies and procedures are complied with at the facility level."

Why Didn't Horn Know?

Sources indicated last week that Chief of Facility Operations Patrick Walsh also testified during his deposition last October that the policy had not yet been implemented. Mr. Horn, however, only discovered the problem several months ago, the insider said.

It is unclear why the Law Department never relayed the information to Mr. Horn or other agency officials. It is also uncertain why the Law Department failed to make sure that Correction Department was abiding by the original settlement considering the significant amount of money at stake.

The Law Department declined to comment, citing ongoing related litigation.

John Boston, director of the Legal Aid Society's Prisoners' Rights Project, charged that the new settlement proved that the Correction Department "cannot be relied upon to carry out its promises or follow its own policies."

He added, "There's a huge disconnect between what is said in the central office and actual implementation at the line level at the jails. This is why we are still litigating in a case with a 1975 docket number about issues like sanitation."

The Legal Aid Society and other advocacy groups have been highly critical of the department's proposal to decrease the space required to house inmates, require prisoners to wear uniforms, and permit officers to monitor their phone calls.

Fight Repeal

The unions representing correction officers have also objected to several of the proposed changes. They are concerned with the plan to amend and in some cases repeal regulations requiring the department to have employees fluent in Spanish available and guidelines specifying how much overtime officers can work. They also object to a plan decreasing the space required to house inmates, which they contend would create safety problems.

"If we can't do this right, how are we going to ensure that the inmates have clean clothes?" one union official asked.

The plan is scheduled to be voted on by the Board of Correction next month.