Closing Rikers Island: A Catalyst for Criminal Justice Reform

Former New York State Chief Judge Jonathan Lippman, speaking at a CityLaw Breakfast on January 23, 2019, powerfully argued that the time has come to close Rikers Island, New York City’s notorious jail located on an island in the East River. Judge Lippman’s remarks echoed the 2017 recommendations of the Independent Commission on New York City Criminal Justice and Incarceration Reform which Judge Lippman chaired. Judge Lippman spoke at the breakfast in a question and answer format as a way to bring the audience into the conversation. Judge Lippman was questioned by Greg Berman, director of the Center for Court Innovation. A transcript of Judge Lippman’s passionate and persuasive remarks follows.

GREG BERMAN: Our task today is to talk about Rikers Island and the future of criminal justice reform in NYC. But before we get there, I want to, with your permission, set the scene. I did a little internet research – and came up with, which is one of my favorite quotes by you: “Being a little bit of a provocateur is a good thing for the judiciary.”  I don’t think every judge thinks of themselves as a provocateur and I was wondering if you could just talk for a minute about what you meant when you said that and where that idea, of being a provocateur, came from.

 

JUDGE LIPPMAN: The reason I have taken that position is that the judiciary is different than the other branches of government, the political branches of government.  We have luxuries that the political branches don’t have. And what I mean by that is that we’re not running for re-election. We can say things, particularly about criminal justice, that the other branches can’t. I viewed my role and even today with less constraint, as putting things on the table that maybe those that were caught in the “tough on crime,” “soft on crime,” political back and forth, can’t do. And that’s what I mean by “being a provocateur.”

On the other hand, there are judges who are hesitant to say interesting things particularly on criminal justice because they do not want to be accused of being “activist judges.” Oh my God, what would be worse, right? A judge who thinks they write the laws, instead of interpret the laws. I’ve had heads of the Senate Judiciary Committee say to me “You think you’re a legislator – you’re not, you’re the Chief Judge.” My view is that judges should be proactive in the pursuit of justice and that’s different than being an “activist judge.” That’s what our branch of government is all about—it’s about justice, equal justice. That’s what we do.

So, yes I’ve taken that role, I wear that role with pride. It informed my tenure as the Chief Judge – not only on criminal justice – but on other things and it informs my work today. When you get out of the judiciary, to some degree, your hands are untied and you’re able to say even more provocative and interesting things.

 

GREG BERMAN: So I want to fast forward to a little bit more than two years ago. You’ve retired from the bench, you joined Latham and Watkins and at some point you get a call from Melissa Mark-Viverito, then City Council Speaker – “Would you take on the task of leading an independent commission that would look at Rikers Island?” Did you hesitate? What made you say yes? And why were you willing to spend your political capital on this particular issue?

 

JUDGE LIPPMAN: I didn’t hesitate for a second. The only thing I asked is that it not be funded by government. That was my condition. And I didn’t hesitate because what could be a greater challenge? Turning a battleship around in port, all the discussion about Rikers Island. Talk, talk, talk… all these years and nothing happened. What a wonderful challenge for me, something that I care so passionately about. What could be more about equal justice than Rikers Island? So, not for a second, and it was a pleasure to do it, and to be able to do it in the way that I wanted to do it.

 

GREG BERMAN: One of the things that you insisted upon is that the Independent Commission on New York City Criminal Justice and Incarceration Reform hear testimony from dozens and dozens of people – experts in the field, people with lived experience, people from other places that have tried to reform their jail systems. I’m wondering whether you could tell me what of all the testimony stood out for you.

 

JUDGE LIPPMAN: If I had to pick one group that testified before the commission, it was ex-inmates. The voice of ex-inmates had never really been heard in a way that I think was appropriate – the people who know that place and know that place best. Inmates, family of former residents of Rikers Island, victims, prosecutors, defense people, all kinds of public figures from the Reverend Sharpton to all kinds of government officials. They all resonated, but particularly the voice of those who had been there. To me, they all got our attention, as did visiting Rikers Island – which is a transformative experience if you’ve never done it. I recommend doing it to really learn the horrors of Rikers Island. From those people who testified, from the visits there, we got the idea that the mass incarceration model doesn’t work, that you can’t fix it—this “one way in, one way out, out of sight, out of mind,” doesn’t work. Rikers Island is an accelerator of human misery. Whether you are there for three days, three weeks, three months, three years – you come out far worse than when you went in. We understood, after a relatively brief period of time, Rikers Island has to be taken down.

This vast panorama of people who came to see us emphasized it in different ways. But the horrors of it is most evident when you speak to some of these formerly incarcerated.

 

GREG BERMAN: The Commission was comprised of two dozen or so people. How did you get all those people to agree and then also bring along three of the district attorneys?

 

JUDGE LIPPMAN: I think it was a very diverse Commission and we did it purposely. We didn’t want to have a bunch of “Yes” people who had a pre-ordained conclusion. I think the one thing that brought everybody together—to blend it into one, was, the moral issues. What I tried to stress was, that there are the analytical issues of how much it costs and all that, and then there are the humanity issues.

What became clear to me and I tried to convey to the Commission is that Rikers Island is a stain on the soul of New York City. It is the values of the City that we care about that have to be raised to the front level by getting rid of this miserable, inhumane, brutalizing place. That’s how we were able to get such a diverse group together. Everyone got it, that we cannot exist as a City, the City which is this ideal, and we are all so proud of it, and we live with Rikers Island. What could be more demoralizing, more less in sync with the moral timber that exists in New York City? So that’s what brought everyone together. That’s how we were able to get such a diverse group with one goal.

 

GREG BERMAN: The Commission’s overarching recommendation was closing Rikers Island and replacing it with smaller, more humane facilities in each of the boroughs. But the Commission’s report, included four or five dozen recommendations for how we might get there. I know you love all your children, but I’m wondering whether you can pinpoint the two or three recommendations within the report that you think are most meaningful to helping us drive the population down to a level where we could conceivably close Rikers Island?

 

JUDGE LIPPMAN: The first part of the report was how to get the population at Rikers Island down. The idea is to build smaller, local jails. You can’t have thousands and thousands of inmates who wind up in the boroughs. Smaller was the idea, and more humane. So the recommendation was that you have to get down the population, which was about 10,000 at that point, down to 5,000. How do you do that? The first way you do that is to make jail the last resort. Some of our progressive DAs have figured that out exactly right, that jail is the last resort:

Diversion in the community: Keep people alive, keep them well, keep them healed, and only go to jail when you can’t do anything else.

Changing the bail system: Where people are kept in jail because they don’t have money is unconstitutional, as is being determined around the country. That system must change.

Speedy Trial: I am witness, complicit in the fact, that the courts take far too long to get cases from A to B.

Discovery: We should be sharing what everyone knows about a case. This is about justice, not one side having an upper hand.

All of those things in the first part of the report are dedicated to making the second part a reality, which is five local jails in New York City – smaller, located in the community where families can visit, more humane, economy of scale, no transportation issues. It takes prisoners a day to get from that horrible place to the court house, this can’t be.

These were basic recommendations that would get us to the five local jails, taking down Rikers Island. And ultimately, after the initial investment, save the City money because the jails are smaller, less expenditure on travel and such things, more efficient, and obviously, most importantly – more humane.

 

GREG BERMAN: It’s been a year since the Commission came out with its report and around the same time Mayor de Blasio and Governor Cuomo signed on to the idea of closing Rikers Island. I wonder if you could give us your assessment of the current state of play. Where are we at now? Have we made progress and are there areas where we are not seeing enough progress?

 

JUDGE LIPPMAN: Let me first commend Mayor de Blasio. He rose to the occasion, he’s committed to this. This is a landmark and the official policy of the City of New York is to close Rikers Island, and what a great accomplishment. We are not there yet, but just to change the policy was just fantastic. Now, we have virtually every public official. We have three of the five district attorneys coming out for closing Rikers and for criminal justice reform. On the getting the population down to 5,000 – I think we’ve made a lot of progress through diversion, supervised release, changing DA-law enforcement policies. We are down to 8,000 prisoners at Rikers Island. I think we made a lot of progress on those issues that you could do administratively, through changed policies. Now we have to go to changing the law, particularly in the legislature and that’s what’s on the table today. So to get to the next phase, we need legislative reform and not just good people doing good things on that side of the equation.

 

 

GREG BERMAN: You’ve seen the politics shift in Albany in the last few months. What advice would you give the governor and the leadership of the legislature?

 

JUDGE LIPPMAN: On the legislature, I would tell the governor and the legislature: this is the moment. The momentum for criminal justice reform in this country is at the local level, it’s not in Washington. That’s where you’re seeing new thinking and new ideas. This is an opportunity and it shouldn’t be missed. The composition of the legislature has changed, so I would say to the governor and legislature that this is the moment, this is what we have been waiting for. This is a one party government now. The governor should be able to do this, is committed to doing this. Criminal justice reform is on the verge of a quantum leap in New York State. And I would urge them to seize the moment. You cannot let this go.

 

GREG BERMAN: The City started to engage the public and the affected communities where they’re proposing siting new jails. I’ve been a little surprised to see that the advocacy community has come out against – not all of the advocacy community, but a significant amount – have come out against the building of these new jails and to push back against it. Does that surprise you?

 

JUDGE LIPPMAN: No, public hearings are public hearings. We are all used to that in City government. But I think they’re dead wrong. Their argument is “Oh, it’s going to cost a lot of money. Just fix up Rikers Island. It’s a burden on the community.” To me, if you’re against local jails, you’re for Rikers Island, and Rikers Island is an abomination. So I think the advocates are missing the boat on this. The bottom line is that mass incarceration doesn’t work. You can tinker around the edges. You can make it a little better, but you can’t fix it. That’s why they’re wrong. Local jails make sense. We know it from around the country. They’re smaller, they’re more humane, they don’t have this brutalizing effect on human beings.

But, if you’re going to build five local jails and destroy Rikers Island and then you have the same culture in those local jails as at Rikers Island – forget it. Then we might as well not touch it. We have to change the culture also. We have to change the whole role of the correction officer. What they’re there to do is not to punish. Look at all of the examples we have. Look at Kalief Browder, a 16-year-old kid was brutalized; a tribute to the inhumanity of Rikers Island, to the folly of our laws. He was 16 years old and it took three years to get his case heard. Browder wouldn’t take a plea. He stayed in that horrible place and he was there because his mother couldn’t make $3,000 in bail. What a horror show. So that’s the bottom line – it’s a horror show.

 

GREG BERMAN: Another issue that is divisive in the criminal justice reform community is the issue of risk assessment. There are some people that argue that risk assessment is essential. We can learn a lot about defendants and the risk they pose to society and the public and it would be insane not to arm judges with that information. On the flip side, there is a very strong push-back that argues that algorithms embed within them a kind of racism, and we need to move aggressively away from an actuarial risk assessment approach. Do you have a stance on that debate?

 

JUDGE LIPPMAN: Oh, I do. I want to be smart on criminal justice – not tough, not soft. The thought that risk assessment is some horror that is going to stereotype the criminal justice system and hurt people’s rights I think is dead wrong. Our friends, usually in the defense community, are against risk assessment. I think we would be nuts to ignore science. What are we going to do? Throw something away that would be of assistance to judges? What sense does that make? I think we have to make the risk assessment as transparent as we can. We have to use everything we possibly can to ensure that stereotypes are taken out of the risk assessment. But why wouldn’t we want to give judges every assistance that they can have? I’m not saying you have to write it into the statute, like they did in New Jersey, but let’s not throw away the benefits of modern science where the algorithms can help judges to determine who is a great risk and who isn’t.

 

 

GREG BERMAN: Richard Brown, the Queens DA (one of the two district attorneys who has not signed on to the idea of closing Rikers Island), wrote an Op-ed in the Daily News arguing that there hasn’t been enough public conversation about idea of closing Rikers Island and that it’s going to cost in the billions. And if we are going to spend, let’s say upwards of $10 billion, we should be talking about whether we want to spend it on Rikers Island, or fixing up NYCHA, or fixing the schools. How you would respond to that argument?

 

JUDGE LIPPMAN: I disagree with Dick Brown, my friend of 40 years. I don’t think that there’s a better place to spend money for the well-being of the future of this City than criminal justice and Rikers Island. To me, this is so much a part of the fabric of this City, the soul of the City, the morality of the City, the values of this City, that there couldn’t be a better place to spend our money. I think that he is wrong.

We have to be spending money and talking, thinking about criminal justice in this City. We have to grapple with an issue that’s more controversial than everything we’ve talked about so far; and that is that 40 percent of the people at Rikers Island are denominated as violent felons. We’ve got to stop labeling these things. Kalief Browder was labeled as a violent felon. He was accused of stealing a backpack. So, we can’t have these labels.

The issue of the day in criminal justice, around the country, are there ways to divert or to not jail violent felons. We had judges from around the country—people who experiment and think about these things. How do we deal with these so-called violent felons? We know from the stats that many of these cases are dismissed. So cases never go anywhere. We know from data produced at the Center for Court Innovation that many of these so called violent felons are low-risk people. So again back to the tough on crime, soft on crime – forget it. Each case is different—look at the individual person – stop with the labels.

 

GREG BERMAN: Even if we try to push forward change on all these fronts, what do we need to preserve? What’s worth keeping within the criminal justice system?

 

JUDGE LIPPMAN: You’re asking me if there is something good about the criminal justice system? Yes, I think there is. Look at what we’ve done in New York City in particular. Crime is at the lowest rate ever. And incarceration is one of the lowest in the country and at an extremely low rate here in the City. A decade or two ago, we had 22,000 people at Rikers Island. We’re down to 8,000. All the players in the criminal justice system must be doing something right if we are able to get incarceration levels down to record levels, crime down to record levels. So something’s good, especially in the system that’s the envy of the world. In terms of preserving due process rights and all the things that we hold dear. And don’t get me wrong – I get it, and I’ve spoken out again and again against it, two systems in justice- equal justice. We can do a lot better. But this system, has done some things incredibly right.

It is still staggering to me that we’ve been able to get incarceration down to the levels where it is and crime down to these levels and a lot of people, including the courts, have something to be proud of.

Criminal justice wonks, the prosecutors, the defense, government – this is an incredible accomplishment, but certainly we’ve got our hands full in making sure that every person, rich and poor, high and low alike, gets the same justice. It can’t be about the amount of money in your pocket or the color of your skin- that we know. Yes, we have accomplished a great deal, but we have got a long way to go to make it what it can be and what it should be.

 

QUESTIONS FROM THE PUBLIC:

BOB BISHOP: Under NY law, bail is just a question of whether the person will return to court – it’s not really a public safety issue.

 

JUDGE LIPPMAN: Well, I think that’s a good point. If you let me get on my soapbox again for a second. I believe that this idea that we should do away with bail, but not let judges consider dangerousness is a terrible mistake. And I’m delighted that the governor’s new bail proposal does not only do away with cash bail, but in some form allows judges to consider public safety. I believe the present system is unfair and unsafe and I’ve been saying this for how many years before anyone else was saying this. But I am so energized that we’re going to have bail reform in NY and I believe that we have to do away with cash bail all together for misdemeanors, felonies, everywhere. But to me it’s simple: bail is wrong, and in my view unconstitutional. If you’re not going to hurt somebody, you should be home with your family, with your community. On the other hand, if you’re going to go out in the street and hurt somebody, then we lock you up, we give you due process rights – all the deference you’re entitled to but that’s it. To me, that’s the simplest of rules: home with the community, jail’s the last resort. If you’re a danger, let judges look at this and do what they’re supposed to do and judge, but give people a due process right.

 

SANDY BALBOZA: I live about a half a block from the Brooklyn jail and I want to be brief, but the jail has been a problem. I’ve seen the culture-change affect our community. You may say that there is a lot of luxury development and the existing brownstone neighborhoods around the jail, but the jail has been a problem and we’d never been able to get anybody to help us with the issues and impacts that we have. I want to say that we are not against a jail, but are against a 20 FAR jail- a jail that’s 10 times larger than the jail we have now.

 

JUDGE LIPPMAN: I agree with you. One of our criticisms by the Commission of the City is that the jails are out of scale. The whole idea was to bring this down. We’ve got to get the population down, get parolees out of there. There are so many things we could do to make those jails smaller, but I agree with you: they can’t be out of character. I also agree with you that you know best – you’re living there, you have to go to these ULURP hearings, talk to the people making these ultimate decisions.  The new jail that hopefully will arise to replace the Brooklyn House will be 100 times better and will be helpful to the community. They’ll be modern buildings with light and air, and I think you’ll find it much better. That’s not to say that there are no problems that revolve around it. We need you to come to the different hearings, and the community has to be engaged because the City administration doesn’t know how to build it or what the problem is.  You have to tell them.

 

BALBOZA: The community has not been engaged. The process is being rushed, the City is cherry picking your recommendations, and 4 jails are not enough for the 5,000 that you’re talking about with all the services that are being on the premises of the jail.

 

JUDGE LIPPMAN: One of the reasons the proposed jails are so big is that the City is designing into them all kinds of different things to serve the community, but I think its overkill. If you look at the square footage in the jails proposed by the City compared to other places around the country. The City’s proposals are way, way, way greater.  So the scale has to be down.

 

JUSTIN POLLOCK: I am also a resident of Brooklyn and next-door neighbor of the Brooklyn House so I know it well. I would say that close to 100 percent of the neighborhood would like a new, modern jail and a better system for the courts as well. On the report, you had recommended five jails – one in each borough. In Brooklyn, that means one jail for a county of 2.6 million people. In New York State, every county, except for Richmond County, Staten Island, has a jail and, in counties with populations of larger than around 450,000, counties have two jails. Why did the commission recommend one jail for the state’s most populous county?

 

JUDGE LIPPMAN: I think it’s a good question, and I think you could argue otherwise. What basically happened is that our original plan, was that we should really make small jails with 20 of them around the City; 300 people, little jails. But the reality is that people don’t want jails in their bedrooms and next door and in the back yards. We ultimately came to the conclusion that it was not viable to recommend 20 or 30 jails around the City. And the best way to make clear that everyone shares the burden equally was to do one in each county. I would say Brooklyn has the best argument, or one of the best arguments for having more than one. But I will say this: it certainly doesn’t help when the administration, for political purposes, says that they’re not going to build a jail in Staten Island, where do you think those people are going to go?