The Appeal Podcast: A Pattern of Jail Deaths in Western New York—and Across the Country
With Appeal contributor Raina Lipsitz
About 1,000 people die in U.S. jails every year. But Erie County, New York, is an outlier, with 24 such deaths since Timothy Howard took over as sheriff in 2005. This week, we’re going to talk with Appeal contributor Raina Lipsitz about what’s happening in Erie County and what it tells us about the broader problem of people dying in jail.
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Adam Johnson: Hi, welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us on Facebook at The Appeal’s main webpage and Twitter @TheAppealPod and be sure to subscribe and rate us on iTunes. Almost a thousand people in the United States died while being held and county and local prisons in 2012, the last year such records were kept. Many as a result of abuse and neglect. One of the worst offenders, Erie County, New York, had 24 such deaths over the past 14 years since Tim Howard took over as sheriff. This week we’re going to talk with Appeal contributor Raina Lipsitz about Erie County and what it tells us about the broader problem of people dying in police custody.
Raina Lipsitz: A lot of these deaths in Erie County jails, they were suicides. I think people somehow have less sympathy for that, but what I would say is that it all feeds together, you know, lack of treatment, lack of resources, lack of care. People go in there with existing mental health problems and existing drug problems and that all combines to create this culture of hopelessness and despair and a lot of the people who died were young. I mean they were 18 to 30.
Adam: Thank you so much for joining us.
Raina Lipsitz: Thanks for having me.
Adam: So you wrote a article for the appeal that I thought was really fascinating in depth look about people who die in the custody of county jails, sheriff’s departments in particular. Something that obviously became part of the national conversation during the Sandra Bland case and now there’s a new documentary out that’s a sort of relitigating that. And this was something that I thought was interesting where you sort of went in and looked at a couple of the cases. It really zoomed in on the humanitarian aspect of it. Can you talk about Erie County and then more broadly what you think Erie County tells us about the problem of people in county jail dying in general?
Raina Lipsitz: Sure. So I grew up in Erie County. I grew up in the city of Buffalo, New York, and Erie County encompasses, um, the city, but also some areas around the city. I should know more about the specific boundaries, but I, I don’t, but it’s western New York. That’s where the county is and it’s home of, as I write in the article, some of the worst jails in New York state. Um, there are two jails, Erie County Holding Center and the Erie County Correctional Facility and are both run by Sheriff Tim Howard, who is, who I focused on in my article. He’s sort of a good example of a sheriff who has been under some scrutiny in the local press, but I don’t think he’s known nationally. And he’s a pretty, he presides over jails in a way that is unaccountable. He has been multiply criticized by state agencies for failure to follow the law. And 24 inmates have died since he became sheriff in 2005. So, um, he is worth paying attention to. And in my article, I look specifically at the case of India Cummings who is a young woman who died in February 2016 when she was only 27 years old after being incarcerated at the Erie County Holding Center.
Adam: Yeah. So she, she died 16 days into her stay at the prison, uh, under very mysterious circumstances, uh, her mother was prevented from seeing her, from visiting her. Can we talk about maybe the particulars of that case and how that played out in terms of the investigation and any kind of lawsuits that were, that were undertaken as a result?
Raina Lipsitz: Sure. So she, her death is being investigated. There was a report issued by the New York State Commission on Correction looking into her death and, and that commission suggested that her death should have been ruled a homicide by medical neglect, which it wasn’t. It was ruled, the official determination of the pathologists who, who wrote her autopsy report was that the cause was “undetermined.” So there’s a state agency that looked into it. Then the Erie County DA kicked it over to the New York State Attorney General’s Office because his office has a conflict. He employed somebody who is married to an Erie County deputy, I believe it’s a woman. Um, and so his office has this sort of clear conflict of interest. He hasn’t been able to investigate any of these cases himself. He did ask for the AG’s office to open a special investigation which they agreed to do in September. And that investigation is ongoing. Um, you know, it actually, the interesting thing to me is that it’s not mysterious the circumstances of her death, at least if you trust the report of the state commission, it’s very clear how she died, which was pretty horrible. I mean, she was having a medical episode, serious medical episodes, one of which stemmed from an injury, her arm was broken probably during her arrest. We don’t know that for a fact because my FOIL request for the arrest records was denied.
Adam: For those who don’t know FOIL is the New York equivalent of FOIA. Just to clarify.
Raina Lipsitz: And you know, my, my request for that record was denied on the grounds of like it was just something ridiculous like it will impede state business or something. It was just, he just didn’t want to give me the record possibly because there’s something in it that indicates that the arresting officers injured her. That injury was never treated and she developed this very serious blood ailment as a result of an untreated broken arm, which certainly contributed to her death. I mean that’s not a, that’s not in dispute even by the person who wrote her autopsy report, who, who was employed by the county and you know, generally agreed was sort of seen as someone who is trying to protect the interests of the county and he wrote in his report that her broken arm and her untreated broken arm contributed to her death. So a lot of the facts are not in dispute. The question is just what is the AG, what’s the outcome of the AG investigation going to be? We don’t know that yet. They’re still in the middle of investigating. So far, no one has been charged in her death with a crime. There is a suit. Her mother filed a lawsuit in May 2017 in federal court and I believe there are a couple of other lawsuits in the works although they haven’t been filed yet, so that’s the current status.
Adam: So Sheriff Howard has had 24 inmates die incarcerated people die in his custody since 2005, which just perusing some of the other statistics online is obviously fairly high. Now there’s been, one of the last years that records were kept in 2012 there was 958 inmates who died in local jails, county jails. Now, suicide is the leading cause of death for most inmates. I want to talk more broadly about the issue of inmates dying in jail. This was of course a huge issue with the Sandra Bland case, which is, there is a fine line between negligence, homicide and not letting people get the care they need, whether it be physical or mental. What are the kind of the civil rights, custodial responsibilities of, of jailers in this country? And I think and I, and the second question I have is I think most people assume that there’s some entity overseeing this, but in a lot of places there really isn’t. There’s state agencies, but they have very little resources and authority. What are the kind of oversights and what mechanism of accountability is there other than the survivors of the family of the deceased suing the jail?
Raina Lipsitz: Right. Those are really good questions. I’m not a lawyer and I’m not an expert in, in any of that. I will say that, you know, as you just said, it’s pretty. It varies widely from state to state, county to county. Different localities have different rules and different overseeing bodies. In New York state, well in Erie County specifically, there used to be a Special Corrections Advisory Board that would report to the Erie County state legislature. The Republicans disbanded that when they took power, I think it was in 2014 and then when the Democrats took the legislature back in 2018, they’ve since been working on reinstating that, but that’s an advisory board. They don’t actually have, my understanding is that they don’t have any enforcement mechanism anyway, you know, there’s a state commission that can issue these reports and has issued reports on a number of the inmate deaths in Erie County jails. But again, there’s no, you know, the only thing that can happen, I mean, the thing that was most shocking to me in researching this article was that Sheriff Howard has no, there’s no way to get rid of this guy. He’s, he was re-elected four times. He was appointed and elected and re-elected three subsequent times, most recently in 2017. You, you can’t recall elected officials in New York State, which is something that I didn’t know before reporting this article. Uh, the only way to get rid of him as if Governor Cuomo decides to remove him from office or starts proceedings to remove him from office.
Adam: And he has refused to do so.
Raina Lipsitz: I don’t know that he’s refused. I, I’m, I’m, I’m unaware of any serious requests that he do so. I mean people have said he should think about it, you know, they’ve issued public comments saying that. I don’t know if anyone’s written a letter asking him officially to do that. I think people don’t understand that that’s even a possibility. I think the main focus locally has been on, you know, on defeating Tim Howard during an election and that just, and, and you know, they came very close to unseating him in the last election. He only won by I think 1.5 percent or something like that. But I think people are not aware that that’s a remedy. I, I, I would be shocked if Andrew Cuomo made it a priority to remove this guy from office. I mean, I think partly because it wouldn’t look so good for Andrew Cuomo. I mean Tim Howard is a Republican. It’s very unpopular, is my understanding to remove law enforcement, you know, especially elected law enforcement officials from office. So I don’t really see that happening, but as of right now that’s the only way that we could actually get this guy out of office.
Adam: We did a sheriff explainer in a previous episode where we kind of explained to people what sheriff’s were cause I know this is a new sort of entry point to reform that a lot of activists are working on and a lot of people don’t actually know what they are. And now I know that Howard is affiliated with the Constitutional Sheriffs and Peace Officers Association, which is considered a fairly right-wing organization that was originally started to not enforce the laws they’ve deemed unconstitutional, sort of a kind of extra legal confederacy of like-minded people. Can we talk about how, um, the extent to which we know that Howard’s sort of disposition about this kind of law and order, tough guy mentality informs maybe informs the conditions of this jail and the neglect in it?
Raina Lipsitz: Sure. Yeah. I mean, so as you said, he’s involved with this group which, uh, of which Joe Arpaio is also a member. And his position is that essentially he doesn’t have to enforce laws that he thinks are unconstitutional. So he has publicly stated that he thinks New York State’s gun laws are unconstitutional. He suggested at some point in a press conference that he wasn’t going to enforce the state gun laws. He had to kind of partially walk that back and say, ‘well, I will uphold the law, but I don’t, I don’t believe in this particular law.’ He sees himself as a real tough guy. He is someone who does not have a lot of sympathy for anyone who winds up in jail. I mean, one of the quotes in my piece, and this is something he said to a newspaper reporter, was a, you know, “Bad things happen in jails because of the people who are sent to jail.”
Adam: Yes. Yes.
Raina Lipsitz: And that’s what he thinks, you know. So he’s certainly, he’s, I think of him as a kind of Trump want-to-be, Joe Arpaio want-to-be. He’s someone who thinks you have to really get tough with these people. And just to your earlier point, you mentioned suicide. A lot of these deaths in Erie County jails, they were suicides. I think people somehow have less sympathy for that, but what I would say is that it all feeds together, you know, lack of treatment, lack of resources, lack of care. People go in there with existing mental health problems and existing drug problems and that all combines to create this culture of hopelessness and despair and a lot of the people who died were young. I mean they were 18 to 30. And people who were there on very minor charges, not even convicted but potentially facing like a month in jail, two months in jail and they killed themselves and that’s a real failure of the jail. I mean you just have these young people there who for all kinds of reasons are feeling hopeless and they should survive a two week stay in jail. I mean, it’s insane that a healthy person would go to jail for one to two weeks and end up dead.
Adam: You also write about Richard Metcalf Jr. who was another person who died in Erie County jail. Can we talk about that case and the extent to which mental health played a role in that as well?
Raina Lipsitz: Sure. I mean that was one of the worst deaths and in Erie County jails. I mean the guy, he was 35 and he, he was arrested for breaking into a catering business. He just kind of wandered into it. He was having some kind of mental health issue. I don’t know that it was diagnosed, but it was clear that it was, something was going on with him. He was having a breakdown of some kind. The deputies are not trained at all to deal with that sort of thing. He was having a violent episode when he died. He was clawing at himself and spitting blood and you know, I have some sympathy for jail employees as well. I mean, I think that some of them are violent creeps and some of them are people who are just trying to do their jobs but do not have the tools, just are not equipped to deal with people in these real dire conditions. And so that’s what happened with Richard Metcalf. I think they had no idea how to react to what he was going through. I mean they beat him and they improperly applied a spit mask and he was choked to death after being beaten. I mean the pictures of him are truly disturbing. He was a young, healthy man other than these mental health issues which had been surfacing and should’ve been treated. And so I think it’s like, it’s not, it’s not generally the case that deputies are violently attacking people and murdering them for no reason. It’s more a problem of not knowing how to deal with people who are in real crisis and not having anything like the training or resources or tools that they would need to be effective.
Adam: Yeah. This is something that’s been a little bit on the front burner of the conversation for about five years now, which is the idea that jails in general, specifically county jails on the front lines are becoming the front lines of mental health issues because we are gutting mental health care, mental health facilities in lots of a rural areas, lots of urban areas. And this gets to the question about negligence, which is where do you, where do you draw the line between being under resourced and being actively negligent, and I assume this is something the Department of Justice looked into. I know that they sued Erie County about 10 years ago. Can we talk about that lawsuit and the extent to which the federal government has tried to provide oversight?
Raina Lipsitz: Sure. There was this lawsuit in 2009 initiated by the Department of Justice against Erie County jails and Sheriff Howard and they were alleging in the suit that it rose to the level of um, you know, constitutional violations. And there are, again, I’m not a constitutional expert, I’m not a legal scholar, but I believe that the Constitution entitles people to, you know, freedom from cruel and unusual punishment and sort of basic safety in jail and basic safety when they’re under state authority. And that’s not what’s been happening in Erie County jails. Now some of that has, overcrowding has been an issue for a long time, understaffing, poorly trained staff. Those are all issues that have been problems in Erie County jails since the 1990s and really haven’t effectively been addressed. There was a settlement with the DoJ and the Erie County jails were supposed to make all sorts of reforms. They’ve made, I would say minor progress in certain areas according to the reports that are issued every year about their, I think twice a year about their compliance with the settlement, but there are a lot of issues that they’ve left unaddressed. And I think that there’s a question, you know, the person who is ultimately responsible is the person who’s in charge and Sheriff Howard runs these jails. He’s the guy at the very top. If he was morally outraged by what was happening in his jails, if he made it a priority, he would be doing everything possible, everything in his power to this and instead he’s been publicly dismissive. He doesn’t think it’s a big problem. He thinks the state agency is picking on him. That’s fine, I mean, he can take that position, but that’s not responsible. It’s not legally responsible. It’s not morally responsible and it’s leading to people dying, young people dying.
Adam: So you, you have a personal relation, we should probably disclose, to this case where your aunt and father represented plaintiffs suing Timothy Howard about 9 years ago and 14 years ago.
Raina Lipsitz: Well, they represented individual plaintiffs, none of whom, maybe one of whom I mentioned in my article, but the article focused mostly on plaintiffs who had no relationship with my family, so they didn’t have anything to do with India Cummings for example, or with Richard Metcalf.
Adam: Right. And what was the result of those lawsuits? I’m, I’m, I’m just sort of curious.
Raina Lipsitz: Well, my aunt, uh, she won a suit at the beginning of last year, February 2018, something like that, um, compelling the sheriff to properly document suicide attempts. So he was, there’s a state requirement he’s supposed to report anytime someone tried to kill themselves, he’s supposed to report that to the state agency and explain the circumstances and say how they were dealing with it. And instead he would just claim that it wasn’t a suicide attempt, that it was a manipulative gesture or a disturbance. So he would just code it as something else, not report it, so therefore there’s no, it doesn’t trigger an investigation. And you know, there were, there’s a great Buffalo news reporter, Matt Spina, who did a lot of work on this, and he got some of those records that contradicted, you know, via FOIL requests, he got some records that contradicted the sheriff’s account and the sheriff’s deputies accounts of some of those cases. So he, he doesn’t want to, you know, I mean, Sheriff Howard doesn’t want people to know the scope of the problem in his jails. He’s actively attempted to suppress that information.
Adam: It’s kind of a little depressing this has to become a multigenerational legacy because this guy has been in office for so long. But um, before we go, can we talk about what are the activists on the ground, um, other than those you mentioned or people within certain state agencies trying to hold people like Howard to account? Can we talk about some of those organizations or people?
Raina Lipsitz: Sure. I am familiar with the local activists in Erie County and I know there’s a group called PUSH, People United for Sustainable Housing and they’re a housing group, but they also do other kind of social justice priorities. I know that there are people who have been working for a long time to get rid of Sheriff Howard. I guess I would say that and the Erie County legislature is doing some really good work. The majority leader is a young woman named April Baskin, who has spearheaded this effort locally to reinstate the special advisory board, the Special Corrections Advisory Board to the legislature and to try to reintroduce some accountability. She hasn’t compelled him. She’s invited him to testify, uh, at several public hearings, which he sort of did. He spoke for about five minutes and then left. And I guess what I would say is that I think people really are waking up not just in Erie County, but nationally to what a crisis this is, what a problem it is in jails nationwide and how people are being treated. And I think people are starting to see it and understand it not just as a racial justice issue, which it is because of the disproportionate number of people of color in our jails, um, but it’s broader than that. And it is a problem, all of it, it’s something that we should all be concerned about. Richard Metcalf Jr. was a white man. It just, this can happen to anyone. It can happen to anyone without resources who just gets caught up in the system. And I think it’s something that we really need to see as a human rights issue. And that people are coming together and developing that understanding.
Adam: Well thank you so much. That was extremely informative.
Raina Lipsitz: Thank you. Thanks for having me.
Adam: Thanks so much to our guest, Appeal contributor Raina Lipsitz. This has been The Appeal podcast. Remember, you can always follow us on Twitter @TheAppealPod, on Facebook at The Appeal magazine’s main webpage and as always you can subscribe to us and rate us on iTunes. The show is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn. Executive producer Sarah Leonard. I’m your host Adam Johnson. Thank you so much. We’ll talk to you next week.