Ross Sandler

This issue of CityLaw contains an assessment of the 2015 Nunez consent decree aimed at curing excessive use of force at the City prisons. The City deserves credit for developing appropriate plans, rather than defending indefensible conditions in the jails. Yet the method adopted by the City – consenting to supervision by judges, outside experts and attorneys – harbors dangers: rigidity and loss of managerial flexibility that can interfere with achievement of the decree’s salutary objectives and undermine local democracy.

The decree is an encyclopedia of rules, prescriptions, procedures and formulaic dictates. These prophylactic duties have a way of devouring the main goal of reducing excessive use of force. It is easy to track training hours, but harder to judge when the City has ended systemic uses of excessive force. But ending constitutional violations is the sole basis for signing the federal court order. Once the City ends the unconstitutional use of force, the decree should end, whether the prophylactic duties have been completed or not.

Under the Nunez decree its duration is not measured by success in correcting constitutional violations. It is instead measured by how long it takes the City to complete the prophylactic measures.  In a joint memo the parties advised Judge Laura Taylor Swain that she could sign a decree in which the City consented to give up its right to move to earlier terminate the decree. This argument clashes, however, with the Supreme Court’s opinion in Horne v. Flores, 129 S.Ct. 2579 (2009), which held that once a durable remedy has been achieved the judge is obligated to terminate the decree. The Supreme Court wrote that “When the objects of the decree have been attained . . . responsibility for discharging the State’s obligations [must be] returned promptly to the State and its officials.” Horne at p. 2596.

Judge Swain should, along with the parties, keep focused on constitutional violations. When constitutional violations end, so should the Nunez decree.

Ross Sandler