In April 2015, New York Administrative Law Judge Faye Lewis recommended that Rikers Island prison guard Aubrey Victor be fired: he had, she determined, hit a prisoner in the face and stomped on his head without cause. Now, Correction Officer's Benevolent Association lawyers are suing in the state Supreme Court to keep his records and those belonging to other guards secret.
What’s more troubling is that most already are.
New York has among the most restrictive laws governing the release of police and prison guard records nationwide: As a general practice, they don’t do it. Victor’s record became public, as the Marshall Project detailed in October, because he appealed to the city’s Office of Administrative Trials and Hearings, which is, at least for the moment, not subject to the state’s secrecy regime.
The union argues that guard safety is at risk. In an amicus brief filed last week, however, the New York Civil Liberties Union contends that ruling in the union’s favor “would cloak in secrecy a culture of violence that pervades Rikers Island and that is the target of pressing reform efforts.”
The NYCLU is right: The guards union wants to shut one of the public’s only very-tiny windows into rampant abuse at New York City’s infamous jail complex.
Sadly, New York is not alone. Twenty months after Michael Brown was shot dead in August 2014, official secrecy makes it very hard for Americans to learn about police who engage in misconduct. And when it comes to prisons and jails, that confidentiality is even more troubling: Guards wield enormous authority over inmates, and the abuse they mete out takes place beyond public view. While random bystanders often observe or record police abuse, beatings in prison are typically only observed by other guards, maybe other prisoners, or perhaps by no one else at all. What’s worse is that because prison guards are rarely punished for misconduct, impunity reins, and the omnipresent threat of retaliation can make prisoners too terrified to speak out.
Police disciplinary records are “effectively confidential” in nearly half of all states, limited in 15 and generally public in just 12, according to an October report from WNYC. Though I could find no similar overview of laws regulating disclosure of correctional guard records, the situation appears to be similarly dismal.
In at least one case, Philadelphia, it’s worse. Records of publicly initiated complaints against police officers are available thanks to a mayoral executive order. But correctional officer records at the city’s huge prison system remain confidential. This is something that I discovered as a reporter at Philadelphia City Paper: on a tip, I interviewed outside visitors who witnessed a guard commit a brutal assault, then obtained a video of that same guard committing a separate assault and then, finally, after months of reporting, he was forced to resign. I never did get his record.
Melissa Melewsky, media law counsel at the Pennsylvania NewsMedia Association, complains that because “the law restricts public access, the public can't hold public officials accountable.”
In Florida, prison guard records, like those of police, are generally available to the public, says Sam Morley, general counsel at the Florida Press Association. Thanks in part to that openness, the Miami Herald’s Julie Brown was able to expose widespread prison abuse and coverups, and won the Polk Award for her efforts.
But Brown says that even in the Sunshine State, obstruction remains the norm. The Herald, she says, has sued the state Department of Corrections multiple times to obtain information, and reporters must request documents with exquisite precision in order to receive them. When she does get documents, the DOC often redacts information under the guise that it could compromise prison security or is "medically related." Leaked documents obtained by Brown, however, show that such too-sensitive-to-reveal words include the word “stretcher.”
“It makes it impossible for the public, and worse, the inmates' families, to find out what happened to their loved one,” emails Brown.
The regime of silence and secrecy means that Americans have very little idea as to what people being incarcerated at their expense and in their name are subjected to. Mass incarceration is now the subject of fierce criticism and political debate in the United States. But prison conditions, by design, receive little attention. Without media scrutiny, it is difficult to convey prisoners’ humanity. And it is thus more difficult to make a case for reform.
This is what makes the work of Prison Photography, a social art project that works to render America’s invisible prison archipelago knowable, so valuable. But it’s also a sobering reminder of how much we miss, and the unfortunate public policy outcomes that ensue.
“Today, what happens in prison stays mostly in prison, making it harder to draw connections in the public mind between justice on the inside and justice on the outside,” political scientist Marie Gottschalk writes in "Caught: The Prison State and the Lockdown of American Politics."
“The ability to identify with an offender—or not—is a key predictor of why people differ in their levels of punitiveness,” she writes.
Available data suggests that most stories are not getting told.
Take this Department of Justice report, covered on by ProPublica in 2014, which found that half of the 8,000 complaints of prison sexual abuse made over a two year period involved guards. ProPublica reports that abuse is rarely proven, and that in the rare case that it is, “the perpetrator rarely faces prosecution. While most prison staff shown to be involved in sexual misconduct lost their jobs, fewer than half were referred for prosecution, and only 1 percent ultimately got convicted.”
About a third of prison staff found to have abused prisoners are allowed to resign prior to the investigation’s completion, “meaning there’s no public record of what exactly transpired and nothing preventing them from getting a similar job at another facility.”
In a separate survey, more than 80,000 prisoners reported sexual abuse by staff and inmates over a two-year period. That’s a number ten times higher than the DOJ figure, which relied on data reported by prison administrators. The impunity, and the widespread fear of retaliation, may very well be scaring abused prisoners into silence.
In September 2015, Tom Robbins, writing for the New York Times and Marshall Project, reported on the case of Ulster Correctional Facility guard Michael Bukowski, who an arbitrator found had kicked prisoner Ramon Fabian in the groin. Fabian had to have part of his right testicle removed. The arbitrator, however, proposed just suspending him for just 120 days. In a rare move, the Department of Corrections refused to reinstate him. The case’s details were made public, says Robbins, because Bukowski filed suit in state Supreme Court to get his job back, and so he had to append the arbitrator’s decision.
Justice Kimberly A. O’Connor rejected the arbitrator’s decision, writing that the mere suspension “shocks the judicial conscience.”
In December, however, another judge acquitted Michael Bukowski of a misdemeanor assault charge for assaulting Fabian.
Bukowski’s severe discipline was anomalous: Guards are rarely fired for alleged misdeeds. Robbins reported that “the state has sought to fire 30 prison guards accused of abusing inmates through a convoluted arbitration process that is required under the union contract” since 2010. “Officials have prevailed only eight times, according to records of disciplinary cases released under state Freedom of Information Law requests."
Those FOIL responses, however, redacted all names, including the names of the facilities where the alleged abuse took place.
In the New Yorker, Jennifer Gonnerman reported on Kalief Browder, a teenager held for three years at Rikers for a robbery he insisted he never committed and for which he was never convicted. Amongst other things, Gonnerman exposed surveillance footage showing Browder being brutally thrown to the floor by a guard. There is no standard procedure for accessing such videos. Notably, Gonnerman never said how she obtained it, or from who.
“The usual tools of any reporter — the ability to observe, to conduct face-to-face interviews, to examine documents — are severely restricted when it comes to reporting on prisons,” emails Gonnerman. “Wardens almost never permit journalists to tour their prisons, and correction officers are typically prohibited from talking to the press. At the same time, however, the worst sort of prisons abuses occur when correction officers think nobody is watching them. It’s the very secretive nature of prisons that makes reporting on them so challenging — and so necessary.”
Last June, Browder committed suicide. We didn’t know the track record of the guard who threw him to the floor, and we don’t know it now. Browder’s case, like that of Fabian, is a reminder that even sunlight can only do so much good.