Last Monday, Alan Fuchsberg argued an appeal before the Appellate Division court of New York, Second Department, located in Brooklyn. Alan argued for the right to sue in tort on behalf of our client, Jonathan, who at the age of 16 had his jaw broken while a prisoner at Riker’s Island. He was sucker-punched after an argument broke out in the gym and because there was no active supervision, it turned into a fight. Incredibly, 32 adolescent inmates, between ages 15 and 17, identified by Rikers as prerogative fighters, and/or coming out of punitive segregation, classified as medium to highly dangerous. They were left hanging out in the far end of the gym with only one correction officer at the opposite end, without any recreation officers to supervise their activities.
The assailant inmate was only 15 years of age but convicted of second-degree Robbery, a violent crime involving force. It was during “go-back” time, a notorious time for fights breaking out.These kids were in a segregated unit because these inmates were determined to be prerogative fighters defines the “scope of the duty owed”. These prisoners constitute a risk of harm not only to the general prison population but also to each other. This is a “risk of harm reasonably to be perceived.”—indeed, that was perceived.In the case of Sanchez v State of New York, the Court of Appeals, New York’s highest court, described so poignantly the duty owed to these adolescent inmates: “Having assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates.”Cockfighting is illegal in all 50 states because it is cruel and inhumane to animals. How do we ever justify putting prerogative fighters together in prison-hold, without adequate supervision? Of all people, don’t children in prison deserve another chance, who often have had childhoods with abuse and neglect.
There were 845 adolescent fights at Rikers Island in one year alone! Enforcing the federal Civil Rights of Institutionalized Persons Rights Act, in 2014 the U.S. Department of Justice did a study of Rikers Island which concluded that “adolescent inmates are not adequately protected from harm caused by violence inflicted by other inmates, including an inmate on inmate fights…these conditions have resulted in serious harm to adolescent inmates at Rikers.” These injuries include broken jaws, noses, orbital areas, and slashings. The study concludes that “the pervasive inmate-on-inmate violence is largely due to DOC’s (Department of Correction’s) failure to adequately supervise adolescents “Cockfighting is illegal in all 50 states because it is cruel and inhumane. How do we ever justify putting prerogative fighters together in prison-hold, without adequate supervision? Of all people, don’t children in prison deserve another chance, who often have had childhoods with abuse and neglect.In addition to Federal Law, State regulation (9 NYCCR sec. 7003), require “active supervision” of inmates during recreational activities. One correction officer simply cannot be expected to timely prevent or respond to an emergency situation. If proper supervision had been provided, this attack could have been prevented.How unfair that Jonathan had surgery, his jaw wired for months, and now has clicking jaw pain and migraines (TMJ). To his credit, Jonathan became a paralegal in our office and now is employed as a custodian by the Salvation Army.
The bittersweet end to this story is that New York State is finally becoming enlightened and changing its laws to raise the age of adult criminal responsibility to 18. Also, New York is one of only two states that send 16- and 17-year-olds to adult prisons. Happily, this will change too. By 2019, Rikers Island will be closed to adolescents who will be housed in their own facility with properly trained supervisors to help them grow up and avoid adult prison as a revolving door of life.