The Legal Aid Society, Brooklyn Defender Services, and Milbank LLP have filed an affirmation in Agnew v. New York City Department of Correction responding to the New York City Department of Correction (DOC)’s claim that it is in substantial compliance with the Court’s order to provide incarcerated New Yorkers’ access to medical care in local jails.

In May, the court found DOC in contempt of a December order to comply with its preexisting legal obligations to provide access to care and gave the City 30 days to demonstrate compliance and avoid sanctions. The DOC submitted an affidavit claiming that it had complied with the order, however, a thorough review of the City’s data revealed otherwise.

When called upon to explain the drastic shift in numbers away from what had previously been attributed to a lack of DOC escorts to accompany persons to appointments, DOC revealed that it had created several new categories of reasons why people were not produced to necessary medical appointments. And further, DOC was arguing that these non-productions, all of which were still due to DOC created circumstances, should not count toward assessing compliance.

The new category containing the largest number of non-productions was “Maximum Safe Capacity.” “Maximum Safe Capacity” refers to “the availability of safe space to wait for the scheduled appointment, when escort officers are available to bring individuals to the clinic,” according to the DOC’s affidavit. DOC’s failure to provide sufficient space in its facilities for individuals to wait for their medical appointments accounted for 1,441 missed medical appointments in May 2022 and 469 between June 1 and June 15, 2022.

Attorneys also took issue with DOC’s claim that any mention of the almost unprecedented number of deaths in its custody over the last year and any inference that those deaths were at all relevant to the issues in the case were “insulting and inflammatory.” Three deaths that occurred in custody earlier this year were linked to failures to provide access to timely medical care and the mismanagement of staff. In two of the three deaths discussed in that report, incarcerated persons were forced to carry the dying person to medical care because there was no staff available to respond to the medical emergency or escort the person to medical care.

“DOC continues to claim compliance with the Court’s order by hiding behind red tape and careful language. But in reality, thousands of people incarcerated in NYC jails have been denied access to medical care because of DOC’s failures,” reads a statement from Legal Aid and its partners. “As the Department touts ‘progress,’ people in its custody continue to suffer, and nine people have died so far this year. Rather than avoiding responsibility for the humanitarian crisis unfolding before its eyes, DOC must immediately resolve these failures.”