A Critical Crossroad In The Campaign To Close Rikers

By Jonathan Lippman and Tyler Nims | March 3, 2019, 8:02 PM EST

Judge Jonathan Lippman
Judge Jonathan Lippman
Tyler Nims
Tyler Nims
In a momentous initiative that could set new standards for reform across the country, New York City is seeking to shut down its massive Rikers Island jail complex. This endeavor goes far beyond the jail walls — it encompasses deep changes to every sector of the criminal justice system.

Located in the East River between Queens and the Bronx, the nine jails on Rikers are accessible only by a two-lane bridge that is nearly three-quarters of a mile long. On any given day, the vast majority of the people locked up in these jails are awaiting trial, which means that every day nearly 1,000 detained people must be transported to and from criminal courthouses in each of the city's five boroughs. More than 90 percent of the people who are incarcerated are people of color. Almost half have been diagnosed with a mental illness.

For decades, the Rikers jails have been notorious for dysfunction and inhumane conditions, to such an extent that federal prosecutors sued New York City over the endemic violence in 2014.

Later that year, the horrors of Rikers were further highlighted by the story of Kalief Browder, a Bronx teenager who was charged with stealing a backpack. Kalief spent three long years in various jails on Rikers, where he was brutalized by guards and other detainees alike, before the charges against him were dismissed. Haunted by his experience on Rikers, he hanged himself after he was released.

This tragic story exemplifies not only the misery of the jails themselves, but also other problems in New York City's justice system, including case delays that can last for years and a cash bail system that allows wealthy people to pay for their freedom while they await trial but locks up poor people who can't afford to post bail. These harms are disproportionately visited on people of color, tearing apart families and communities. The human cost is enormous.

The financial cost of this dysfunctional system is also enormous: according to the New York City Comptroller, in 2018 the cost to house someone in a Rikers jail for a year was $302,000. The cost continues to rise.

The federal lawsuit and the tragedy of Kalief Browder's death contributed to growing calls for change, including the powerful #CLOSErikers campaign led by formerly incarcerated people.

In April 2016, Melissa Mark-Viverito, then speaker of the City Council, appointed one of the authors of this article (Judge Jonathan Lippman) to lead an independent group of civic leaders to "explore how we can get the population of Rikers to be so small that the dream of shutting it down becomes a reality."

The members of our commission have backgrounds in law enforcement, corrections, public defense, social services, philanthropy and business. Importantly, several members had been incarcerated on Rikers. Latham & Watkins serves as pro bono counsel to the commission; to date, a team of over 30 attorneys and staff have dedicated more than 3,000 pro bono hours to the commission's work.

Over the course of a year, our commission investigated New York City's justice system. We heard testimony from law enforcement, medical professionals and family members of people who were incarcerated. We delved into data about the jail system. We inspected justice facilities in other jurisdictions to understand best practices.

It did not take long for us to unanimously conclude that the Rikers jails are seriously broken and could not be fixed. They are too far from the borough courthouses, where nearly 1,000 detained people must be transported every day by bus. They are too inaccessible to family members, service providers and lawyers — visiting someone in Rikers for just an hour can take all day. And most importantly, we concluded that the "out of sight, out of mind" mentality fosters a culture of violence, neglect and impunity.

Our commission did not just call for closing Rikers — we put forward a road map for achieving the goal. First, we proposed more than 40 evidence-based reforms at every stage of the criminal justice process that we projected would improve public safety while reducing the number of people in jail by half. Second, we called for the development of modern and more humane jail facilities near each borough courthouse, designed to provide a safe environment that begins to prepare those inside to return to their communities from the moment they enter. Finally, we recommended that Rikers Island be repurposed for crucial environmental infrastructure or for expanding LaGuardia Airport to benefit the city as a whole. We also called for the misery of Rikers to be memorialized so that the island's painful history would never be forgotten.

We recognized that building a borough-based jail system would be expensive, but we projected that even accounting for these costs, our changes ultimately would save taxpayers more than a half billion dollars each year.

As we released our blueprint in April 2017, Mayor Bill de Blasio reached a momentous decision: He announced that closing Rikers would be the official policy of his administration. This goal was endorsed by political leaders across New York City and state, including Gov. Andrew Cuomo and the district attorneys in Brooklyn, the Bronx and Manhattan.

Closing Rikers is no simple project. It means rethinking incarceration as the default path to public safety. It requires changes to practice and policy across dozens of institutions, including the city's correction and police departments, the independently elected district attorneys in the five boroughs, the judiciary, nonprofit service providers, the defense bar and the state legislature. It also requires the city to site, design and build a smaller set of better-designed jails in the boroughs. And it will take a profound commitment to re-envisioning the way that jails are operated, with a focus on dignity and safety.

Two years after our commission's report and the mayor's announcement, the progress has been remarkable. There are nearly 1,500 fewer people in jail today than there were in April 2017. One of the nine jails on Rikers has already been shuttered. The city remains safer than ever.

Nonetheless, significant problems remain. Violence on Rikers continues at epidemic proportions, even as the number of people in jail has declined. The massive racial disparities that characterized Rikers two years ago are unchanged. Too many people are locked up only because they cannot afford bail. Cases still take too long to reach disposition. And while every other category of detention is declining, the number of people who are locked up for noncriminal violations of parole has increased.

The year ahead will be decisive. At the state level, there is the chance to pass important legislation to end cash bail, improve discovery and case processing, and fix the parole system, each of which would accelerate the timeline for closing Rikers. In New York City, a series of hearings on the borough facilities is scheduled to begin in the spring of 2019 — a process that may be contentious but which is necessary to end Rikers and establish a more humane justice system.

There are challenges and opportunities ahead, but, with continued focus, the goal of a more just New York City is increasingly within reach.

Jonathan Lippman is a former chief judge of New York state, chair of the Independent Commission on NYC Criminal Justice and Incarceration Reform, and of counsel at Latham & Watkins LLP. Tyler Nims is the commission's executive director.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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