Appeals Court Affirms Jail Ventilation Requirements, Blasts “Untruthfulness, Non-Compliance, And Inaction” By City
TUESDAY, MARCH 23, 2010

The Second Circuit Court of Appeals yesterday upheld a lower court order requiring the City Department of Correction to carry out a significant repair and renovation program for non-functioning ventilation systems in the City’s jails. The court cited “a troubling pattern of non-compliance and misrepresentations on the part of the Department,” and concluded that “nearly a half-decade of untruthfulness, non-compliance, and inaction constitutes sufficient justification” for the order. Its decision came in Benjamin v. Schriro, the current title of Legal Aid’s long-standing litigation about living conditions in the City jails.

Previously, in 2001, federal district judge Harold Baer, Jr., found after an extensive trial that the lack of working ventilation in the City’s jails violated the Constitution because it threatened prisoners’ health through the spread of airborne disease as well as undermining sanitation. Judge Baer ordered the Department of Correction annually to “repair or replace to working order all ventilation systems” in the jails, and to certify their compliance to the court. That order and Judge Baer’s findings were affirmed by the Second Circuit in 2003.

For several years, the Department falsely certified that it was in substantial compliance with the “working order” requirement. After the false certifications were discovered, an independent ventilation consultant hired to investigate compliance found what the appeals court called “substantial shortcomings and deficiencies” requiring “a litany of mechanical, structural, and electrical upgrades” in order to comply with the 2001 Order. The Department did not dispute these findings, but later submitted a remediation plan.

In light of the history of noncompliance and misrepresentations, Legal Aid then requested that Judge Baer enter an order requiring the Department to carry out the promised plan on the proposed schedule. Judge Baer did so in February 2009, and the Department appealed. It was this order that the appeals court upheld, noting that the lack of such a plan “for many years has resulted in ongoing and unremedied constitutional violations in City jails.”

During the period of false certifications, as well as the remedial plan and the decision to appeal Judge Baer’s 2009 order, the Commissioner of Correction was Martin F. Horn, who resigned in July 2009. He was replaced in September 2009 by the current Commissioner, Dr. Dora B. Schriro.

The case was argued in the Second Circuit by John Boston , Director of Legal Aid’s Prisoners’ Rights Project. The Benjamin litigation is handled by Boston, Veronica Vela, and Dale A. Wilker of the Project.

Read the full decision (PDF).