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COMMENTARY

Latest court decision is 'get out of jail free card' for Sheriff Howard

Rod Watson

The shocking decision will only further embolden a public official whose flouting of both the rules and norms that govern a democratic society demands a public system of checks and balances that too often has been lacking.

In fact, it further weakens that very system at a moment when he already has proven – time and again – that he will disregard the rules and pursue his own agenda, to the detriment of the public he was elected to represent.

And no, I’m not talking about the U.S. Senate’s sham trial acquitting Donald Trump.

I’m talking about the State Supreme Court appellate division ruling that frees Erie County Sheriff Timothy Howard from the constraints of citizen oversight.

That oversight has proven necessary to protect people in Howard’s jails and protect taxpayers from the lawsuits stemming from the incompetence and obstinance that have resulted in at least 30 inmate deaths – an average of one every six months – during Howard’s 15-year reign of error.

Yet the five-judge panel ruled that the quartet of citizens who went to court to force Howard to comply – basically, to do his job – when it comes to accurately reporting suicide attempts "lack standing" to bring the case because they could not show that they had been injured by Howard’s refusal to do what’s mandated.

The four sought court help precisely because, instead of accurately telling the public when inmates attempted suicide, Howard’s team hid behind misleading descriptions like "individual inmate disturbances" because that artful language would not require them to report the suicide attempts to the state Commission of Correction.

That deception was on top of falsely reporting that a hospitalized inmate was injured in a fall when, in fact, he had been beaten by a prisoner from whom he had sought protection. And it was in addition to not accurately reporting that another inmate died because jail deputies improperly tied a spit mask around his neck and he ended up strangled.

Against that backdrop of repeated cover-ups in inmate deaths, Justice Mark Montour concluded in 2018 that the four citizens had the right to compel Howard to accurately report serious jail incidents, and that they could seek to have him held in contempt if he did not.

The fact that they had to go to court to force accuracy and transparency from an elected official speaks volumes. Yet in a thin, five-paragraph decision that explains little, the judges have unanimously taken away that stick.

For a sheriff who’s proven impervious to being sued by the U.S. Justice Department, castigated by the COC, hauled before the County Legislature and picketed by citizen groups trying to make him follow the rules, this is like a "get out of jail free card" – one that can only further endanger the folks still stuck in his jails. Howard’s history says the sheriff will continue to play fast and loose with the rules and inmate safety, now that the appellate division says his constituents cannot use the courts to hold him accountable.

Nan Haynes, a retired University at Buffalo law professor and one of the plaintiffs, said the decision flies in the face of New York law and public policy that says citizens have the right to petition their government.

"We’re all injured when he doesn’t report attempted suicides," Haynes said of the dubious argument that she and the others lack standing.

She noted that it’s part of the COC’s mandate that it examine statistics like suicide attempts when offering advice to improve the jails and safeguard anyone who might end up there after being arrested, rightly or wrongly.

Beyond that, county residents are on the hook for paying settlements in the myriad lawsuits Howard’s mismanagement has spawned. That alone should give the plaintiffs standing.

Instead, the judges said it’s up to the COC or other executive branch officials – not the courts – to make Howard shape up. But while the commission did sue Howard in 2009, its overall record illustrates way too much patience – patience that has proven deadly. If the commission had been doing its job, the citizens wouldn’t have had to take this step in the first place.

Now their – and our – only hope is a possible appeal, perhaps directly to the Court of Appeals.

"I’ll argue that it’s a matter of public importance," Haynes said.

Given the number of jail deaths and injuries, there’s no disputing that.

Nor is there any arguing with Haynes’ observation, as she noted that the appellate ruling unshackling a sheriff who feels unbound by rules and regulations came on the same day the Senate voted not hear any witnesses in its show trial of a president with the same disregard for the law.

"It’s really a scary time for democracy," she said.

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