Of all the suggestions for dealing with a sheriff who won’t or can’t stop the unending stream of inmate deaths in his jails, one has gotten very little attention.
Timothy Howard’s critics have called for everything from pressuring the state Commission of Correction to take him to court, to pressuring county legislators to establish a jail oversight board, to having the state attorney general probe why Howard can’t keep his inmates from ending up in the morgue.
But there is one, more radical solution that could accomplish what voters should have, but narrowly failed to do last year: Have the governor remove Howard from office.
That would be a radical step for at least two obvious reasons.
For one, it would overturn the will of Erie County voters who, despite the myriad problems in the county’s Holding Center and Correctional Facility, returned Howard to office last fall. Granted, it was narrow victory, with the three-term incumbent defeating retired FBI official Bernie Tolbert by a scant 51 percent to 49 percent margin. But a win is a win.
And then there are the politics. It would mean a Democratic governor, in the midst of his re-election campaign, taking the nearly unprecedented step of removing a Republican sheriff.
But death doesn’t – or at least shouldn’t – have a party label, even if most voters never imagine they or someone they love will be arrested and subject to Howard’s indifference to life while they are in one of his jails.
So far, there have been two dozen – that’s right, 24 – inmate deaths during Howard’s 13 years as sheriff. And that’s not even counting the death of the state trooper killed when Ralph "Bucky" Phillips walked out of the Correctional Facility.
Just since the election, the Commission of Correction has rated Erie County’s jails as among the worst in the state while deeming one of the deaths a homicide.
Lawsuits over the deaths continue to consume the dollars of hard-working taxpayers, dollars that could be better spent elsewhere.
And lest anyone forget, one more inmate died in the Holding Center just three months ago after being found with a noose around his neck.
Are those developments, on top of the previous tragedies, enough to tip the balance after a razor-close election, particularly when the sheriff shows no signs of wanting to improve operations and, to the contrary, belligerently berates the commission instead of using its reports as a template for reform.
The state constitution gives the governor the power to remove a sheriff after providing "the charges against him or her" and the chance to mount a defense. I can’t imagine Howard’s defense, particularly after he answered "I don’t know" 68 times during a deposition in a lawsuit over one of the 24 deaths. The charges could start with dereliction of duty.
But while the provision is in the constitution, it is rarely used.
Newsday in 2016, while reporting on the Suffolk County executive’s bid to oust the district attorney for alleged corruption, noted that then-Gov. Franklin D. Roosevelt used the provision in 1932 to remove a New York County sheriff who was part of the Tammany Hall machine.
Nan Haynes, professor emerita from the University at Buffalo Law School, could uncover only one other instance in which it was used to remove a sheriff. In that 1902 case, though not quite analogous, the Appellate Division noted that the governor’s power to remove an elected sheriff must be based on "such acts of commission or omission as affect the usefulness of the incumbent as a public officer."
Howard has repeatedly proven he is less than useless as a public officer. He is an expert at misusing his dress uniform to participate in political rallies and moonlighting on second jobs. But when it comes to overseeing his jails to ensure the safety of those accused – justifiably or not – he has failed with tragic results. And instead of trying to improve, he has resisted both the U.S. Justice Department and the state Commission of Correction at every turn, an obstinacy that has had fatal consequences.
Haynes, who co-authored a recent Buffalo News submission calling on the public to pressure state and county officials to crack down on Howard, pointed to the deaths of those in his custody and Howard’s "indifference" to their constitutional and human rights in agreeing it’s time to remove him.
So does lawyer and state Senate candidate Shaqurah Zachery, who has called on the governor to remove Howard. As an attorney sometimes representing people housed in the county lockups, she said she has always been interested in the issue but also points to three deaths in the jails in the past year, plus the Commission of Correction report saying the death of inmate India Cummings should be ruled a "homicide."
"Enough is enough. There is a way to address this in a very direct manner," she said, noting that if the election for sheriff were held today in the wake of the new developments, the results might well be different.
She also faulted her opponent for being silent on the issue. But state Sen. Tim Kennedy called that a "distortion of the truth," pointing out that he has been working with County Legislator April Baskin, chairwoman of the Public Safety Committee, to – among other things – hold community meetings on the issue and press the Commission of Correction to meet publicly with the committee to discuss the county jails.
"We’re asking for full transparency from the Commission of Correction," Kennedy said.
Baskin corroborated Kennedy’s support, saying he – along with Assemblymembers Crystal Peoples-Stokes and Sean Ryan – wrote letters pushing the COC, which had ignored her requests. Now the commission is finally responding, though it wants a private teleconference rather than a public meeting.
"I think the people deserve more than that," Baskin said, adding that the issue is still being negotiated.
She called the governor’s intervention "long overdue," while Kennedy pointed to Howard’s re-election and said he supports the democratic process, comparing it to trying to cope with a president he also doesn’t agree with.
But ultimately, it’s not up to Zachery or Kennedy or Baskin. It’s up to Gov. Andrew M. Cuomo and the Republican, Democratic and other gubernatorial candidates who would take his job. Cuomo’s office did not immediately respond to a request for comment, and it hasn’t been a big issue in the campaigns of those who would replace him, but it should be.
Granted, removing an elected official is a drastic step, one that has seldom been used – and for good reason. But there are at least two dozen reasons that justify it in this case.
If 24 inmate deaths aren’t enough, how many will it take? And whose loved one will be next?