With almost metronomic regularity, investigative reports have shed light on a lawlessness that seems to pervade the prisons of New York. From Rikers to Attica, Clinton to Ulster and Fishkill, well documented and widespread reports of abuse by corrections officers have been detailed in a manner that evokes images of an era we thought long gone. And just as troubling, these instances of reported abuse are met with only marginal inquiry and minimal prosecution from authorities who appear all too comfortable being merely passive observers.
Set against the backdrop of a growing bipartisan consensus that what we now refer to as mass‐ incarceration must be addressed, the image of rampant abuse inside our prisons casts an additional pall over our system of justice. Getting the public to pay attention to conditions inside prisons ‐ anywhere, at any time – is difficult. The public at large often feels that those who are there deserve the conditions they must endure, part and parcel of the sentence they have received for their criminal behavior.
Yet once conditions of a sufficiently horrific nature can be documented — think Abu Ghraib, Guantanamo — we recognize that turning a blind eye violates every clause of our social compact. It also breeds the recidivism rates and inability to reintegrate into society that dooms too many former inmates to an unending cycle of poverty and crime.
There are several themes that emerge from the inquiries into the near anarchic conditions in our prisons:
The failure of prosecutors to push aggressively against fellow law enforcement entities – in this instance correction officers. As we have seen in so many other contexts, some prosecutors are just reluctant to vigorously pursue law enforcement’s own failures.
Politically powerful forces – in New York, the unions representing corrections officers. They have pushed back against serious inquiry and prosecution and succeeded in weakening an arbitration process designed to decide whether offenders keep their jobs and under what conditions. Too often these arbitrations result in “split the baby” resolutions, returning abusive employees to the very environment where they do not belong.
And the natural credibility gap that attaches to convicts as witnesses alleging abuse. As prosecutors, we are used to saying, “We don’t choose our witnesses; priest and rabbis are not often witnesses to violent crime.” Yet we know that certain categories of witnesses bring particular trust problems, and inmates are among the least likely to get an impartial hearing.
The frequency and breadth of the problem suggest that this is not an instance of “a few bad apples” – the response one invariably hears when problems are first discerned in any industry or sector. That was the defense articulated by leading financial executives in the early days of the Wall Street corruption cases over a decade ago. Now, as then, the scandals were symptoms of systemic breakdown. The kind of conspiracy of silence that shrouded Wall Street for so long must not be allowed to hide abuses in our corrections system.
Fortunately, there are mechanisms for correcting these failings. The governor and attorney general have statutory investigative powers designed for an instance such as this. The governor can create a Moreland Act commission, which, if properly independent, has vast investigative reach. The attorney general, by statute, "may, with the approval of the governor, and when directed by the governor, shall, inquire into matters concerning the public peace, public safety and public justice." The attorney general should request such authority. How could the governor refuse? In addition, the comptroller could conduct an audit to determine why the discipline of corrections officers has been so inadequate. And of course legislative committees could conduct inquiries. There are many avenues for meaningful inquiry. We know that sunlight is the best disinfectant, and much sunlight is needed here.
At the end of the day, my belief is that local law enforcement in New York has failed utterly at rooting out official corruption, whether within our elected branches of government or within law enforcement itself. The only plausible answer to the problem of brutality in our prisons is twofold: eliminate arbitration with respect to prison employment, and turn over responsibility for the prosecution of violence in prisons to either a statewide special prosecutor or federal authorities.
This is a moment when prosecutorial choices and police behavior on the street are properly garnering much attention; perhaps it is time we also extend that scrutiny to a venue too often shielded from the public eye – our prisons.
Eliot Spitzer is the former governor and former attorney general of New York.