Rafael A. Mangual joins Seth Barron to discuss New York City’s plan to replace the jail complex on Rikers Island with four borough-based jails and what it could mean for public order in the city.

New York City jails currently house a daily average of about 8,000 people, in a city of 8 million residents. Under the new plan, the borough-based jails (once constructed) will be able to house 3,300 people—less than half the city’s average daily jail population today. As Barron writes, the new target “will likely require a significant realignment of expectations about public safety.”

Audio Transcript

Brian Anderson: Welcome back to the 10 Blocks podcast. This is Brian Anderson, the editor of City Journal. New York City council recently approved a plan to build four new borough based jails to replace the massive detention complex on Rikers Island. Under this plan, city jails will be able to house just over 3,000 people, but that's less than half the city's average daily jail population today. Coming up on the show, associate editor Seth Barron and contributing editor Ralf Mangual will discuss the plan to shut down Rikers and what it could mean for New Yorkers. The conversation between Seth Barron and Ralf Mangual begins after this.

Seth Barron: Welcome back to 10 Blocks, the podcast of City Journal. This is your host for today, Seth Barron, City Journal's associate editor. I'm joined today by Rafael Mangual, fellow and deputy director of legal policy at the Manhattan Institute and contributing editor at City Journal. We're talking today about New York City's plan to close Rikers Island and build four smaller jails to replace what some have called a brutal penal colony in the East River. The city council voted last week to move ahead with the plan. So we're just going to talk about what the implications of this new move are. Rafael, thanks for joining us on 10 Blocks

Rafael Mangual: Thanks so much for having me.

Seth Barron: So why don't you tell us what was the problem with Rikers Island? Why does it have to be closed?

Rafael Mangual: Well, I'm not really sure I'm the one that can answer that question. It doesn't seem to me like closing Rikers Island is an imperative based on some of the problems that have been pointed out, right? From what I understand, the experience for inmates is not particularly good, but what that has to do with the actual set of buildings that they're housed in is really unclear to me. So, it seems to me that there was kind of a predetermined, politically motivated decision that this Island needed to be shut down and that the system needed to be borough-based. And yeah, I personally don't see why we have to go down that route.

Seth Barron: Well, from what I understand, the current facilities on Rikers Island are not in good repair and they also were not built in accord with today's best practices for jail design.

Rafael Mangual: Sure.

Seth Barron: Where people live in kind of a pod and the guards can see what's going on. The jails at Rikers Island are built with distorted lines of sight and corners where people can't be seen by the guards.

Rafael Mangual: Yeah.

Seth Barron: Plus the whole place is kind of falling apart.

Rafael Mangual: Sure. Look, as for the repairs that are needed at the facilities on Rikers Island, certainly there must be ways that you could do that without shutting the entire Island down and building a borough-based system. But I think it's important that while yes, it's true, the setup of Rikers Island does not reflect modern penological science in so far as sight lines are concerned and that sort of thing. But one of the things I think we would need to really think carefully about is ask the question, which is how much of today's problems are actually attributable to those design defects, right?

For example, look at the jail violence issue within Rikers Island. Violence has been going through the roof both inmate on inmate violence as well as inmate attacks on guards. A lot of that uptake has really happened since 2014. In fact, if you look at, if you go back 20 years to 1998 you'll see that the Rikers Island population was well over 17,000. It's about 7,000 today and there were only about 6,500 violent incidents back then. Despite today, there only being about 7,000 inmates. We only have about 12,000 violent incidents. So it's double the violence essentially with about half the population. In 1998, the design was exactly the same. So it doesn't seem to me that you can attribute, for example, some of the problems to the design violence being one of them.

Seth Barron: So if that's the case, why would you say that violence is much worse? Is it a function of brutal conditions? Are things more brutal there now?

Rafael Mangual: Well, they're certainly more brutal because inmates are more violent and I think inmates are more violent because of significant policy shifts that have been undertaken of the de Blasio administration. The main one has been basically the ban, the functional ban, on solitary confinement or punitive segregation for inmates who are age 21 and under. That started an unofficial policy in 2014 and became official policy first for inmates under 18 and then it was extended for inmates 21 and under. And what we've seen is that a huge chunk of the violence has actually been attributable to that policy shift. That's a perfect example of tweaks that could be made to improve conditions at Rikers Island without actually having to build anything.

Seth Barron: Originally when the city first announced this plan two years ago, they said they were going to reduce the total jailed population of the city from around nine or 10,000 because there's people not just in Rikers who are in jail, which was that there's a jail in Manhattan, The Tombs, and then in Brooklyn as well, but they were going to reduce that number to about 5,000. That's what the Lippman Report said in 2017 that 5,000 was the target number at which it would be possible to house all the jailed people in local borough-based jails. But now, the city says that the number really is just 3,300, they reduced the number of beds they're going to need, cells they're going to need. In order to reflect what crime is going to look like in 2026, is crime dropping that rapidly?

Rafael Mangual: Not to my knowledge. In fact, in New York City, some really important crime indicators are up for the year citywide, both homicides and shootings are up. More importantly, if you look at some of the more dangerous precincts within the city, shootings are actually up quite significantly. We're seeing increases ranging from 700% in some precincts to 400% in others, 300%, 78%. Crime is not evenly distributed throughout the city and in the areas that have been struggling with that issue over the last few years, we are seeing things start to deteriorate at least at the margins. So I'm not sure there's any real scientific basis or legitimate public policy rationale that depends on the assumption that crime will decrease so rapidly as to allow us to be able to cut our jail population in half in just a matter of a couple of years, especially given the fact that the vast majority of people who are in jail in New York City are already in the kind of worst of the worst offenders.

In other words, we have done a pretty good job in the city over the last couple of decades of reserving incarceration for the worst offenders. And it's really interesting to me because this was something that the mayor and his supporters have always latched onto as an explanation for the increased violence at Rikers Island over the last few years. One of the things that the city would say, and they actually wrote this in the mayor's management report of 2017 was basically that one of the reasons that violence was going through the roof within jail walls was that they're successful diversion of so-called nonviolent offenders to non-incarceral options has basically meant that the incarcerated population was, a bigger proportion of it was constituted by serious felons and violent offenders and people with gang affiliations, et cetera.

Well, they said that back when the jail population was at about 9,500. We've since gotten it down to about 7,000 and now they want to cut it in half again. What's not clear to me is why, if a few years ago the vast majority of people in jail were according to the city too violent to manage and control such that they couldn't put a cap on the violence. Why we ought to feel good about letting these people out, which is exactly what we're going to have to do to get to that 3,300 number.

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Seth Barron: If you look at the mayor's office of criminal justice statistics, they have a fact sheet who's in Rikers and they say very clearly the number of people in Rikers for prostitution or small marijuana possession is zero, and for fair beating, it's like maybe one or two on an average day.

Rafael Mangual: That's right.

Seth Barron: Which directly contradicts a lot of the rhetoric we hear from the advocates who continue to say that racist policies of mass incarceration that stem directly from slavery to Jim Crow to the drug war to now that that's what's driving incarceration, that people are essentially languishing on Rikers who haven't done anything. But how do we get to 3,300? Because they have given, it's not just monkeying around with politics and the numbers, they do have a rationale for how you're going to get there. So what can you say about, especially reforms at the state level that are now going to come into effect?

Rafael Mangual: Well, reforms at the state level is certainly going to be a big part of it, right? The bail reform package that is going into effect in January is going to mean that a significant number of people will no longer be eligible for pretrial detainment because in New York, judges can only consider the danger of absconsion in making a bail determination, they can consider danger to the community. And so what the new bail reform is going to do is it's going to take people who are facing charges on a long list of offenses and basically say that bail cannot be imposed in those sorts of cases, right? So, that's going to drive at least a chunk of the decrease. But they also knew that was happening back when the number was about 5,000.

Rafael Mangual: The other thing too is the mayor actually has driven his own bail reform initiative here within the city as two teenage offenders and has imposed a list of offenses that teenage offenders will now no longer be able to be held for on remand or bail. So, part of it's at the state level, part of it's at the city level, but again, none of these things account for the potential of a crime increase, right? I mean New York City is a large city. We've got almost nine million people. The idea that on any given day, no matter how long your time horizon is, that we're never going to need more than 3,300 beds just doesn't really seem like it's rooted in anything other than this kind of artificial cap that's been placed.

Seth Barron: Well, I've heard a lot of advocates, there's this group, No New Jails.

Rafael Mangual: Right.

Seth Barron: And one of the things that they say frequently is that if you build jail cells, you will fill them. That there's a kind of carceral logic.

Rafael Mangual: Yeah.

Seth Barron: That if you build it, they will come essentially. But you pointed out that there's a big hole in this logic.

Rafael Mangual: There's a huge hole in the logic, which is evidenced by the fact that New York state and New York City and the country as a whole is decarcerated at a relatively significant pace for years. The idea that every empty jail bed will be filled is just entirely contradicted by New York story alone, right. As I mentioned earlier, in the last 20 years, New York state has cut its prison population by somewhere around 30%. We've cut the jail population here in New York City by about 50%. There's plenty of space for more people on Rikers Island. The idea that empty space means we're going to find ways to fill it, yeah, it just doesn't reflect reality at all. But I do think these No New Jails people are really uncovering an important thread that underlies some of the opposition to incarceration as a legitimate public safety tool.

Rafael Mangual: I do think that there are more people than we understand who actually subscribe to this prison abolition and jail abolition mentality. Even the famous Congresswoman, AOC, Alexandria Ocasio-Cortez recently Tweeted that we need to seriously consider a prison abolition as a nation because of course our mass incarceration problem is a direct descendant of Jim Crow. So I don't think that this is a smart way to go about it at all. And yeah, in every respect, their arguments just are in complete opposition to what the data say.

Seth Barron: Yeah. The city just came up with a new program, is it Project Reset, Reset NYC, where I guess if it were originally was teenagers.

Rafael Mangual: Right.

Seth Barron: But now they've expanded it to everyone, including people with prior records that if you're arrested for I guess a nonviolent offense, you can undergo a kind of alternative to going to court. And I think in Brooklyn it involves taking a tour of the Brooklyn Museum of Art, two to four hour tour and then a discussion group. And this is meant, I don't know why this is considered restorative, but somehow it's better they say.

Rafael Mangual: Yeah. Well, I'm not sure that it is. I certainly haven't seen any evidence to indicate that it's better. The idea that you can judge these offenders and categorize them definitively as nonviolent based on the most recent offense for which they were arrested, it again just doesn't really reflect the reality, which is that criminals don't specialize. And some of the people, in fact many of the people, who engage in low level offenses and who get arrested for so-called low level offenses do actually tend to be pretty serious offenders in their own right, which means that sometimes you can actually get a pretty decent incapacitation benefit from their incarceration were you're to follow through on the penalties for those lower level offenses. This is something that we've seen in New York for a long time and these are lessons that we are ignoring, I think at our peril.

Seth Barron: Now, I've heard a lot of people say, and the former speaker of the city council, Melissa Mark-Viverito would say this, and a lot of people on Twitter come up with this, that people in Rikers, some of them have been sentenced to Rikers.

Rafael Mangual: Sure.

Seth Barron: But many of them, I think the majority of them, are waiting trial.

Rafael Mangual: Right.

Seth Barron: So technically they're innocent. They're not guilty. These are innocent people who are languishing on Rikers. Now, it occurred to me that, well, yes, technically they're innocent, but in fact most of them are guilty and will be shown to be guilty.

Rafael Mangual: Sure.

Seth Barron: That's not to say that innocent people should be punished, but what about this idea that there's a kind of unfairness to being jailed before you've had due process?

Rafael Mangual: Well, that's the thing. I don't think it's actually before you've had due process. And this is another fundamental misunderstanding that underlies the left approach to this debate. The idea that you cannot be held pretrial or that you cannot be held in a carceral facility without having been determined to be guilty beyond a reasonable doubt just has no real basis in the history of the due process clause. The fact is is that everybody who is in Rikers Island has received at least some level of due process up to a certain point and a judicial determination of probable cause is enough due process to hold somebody for a short period of time pretrial, right. So the idea that there hasn't been any real consideration of the case that's been presented by prosecutors in these instances just, again, just doesn't reflect reality.

If you're being held pretrial, a judge has made a determination that more likely than not you have committed the crime of which you are accused. There's a hearing. Both sides can make arguments at that hearing. You can move to dismiss the case, whatever. The fact of the matter is is that if you are after you are arrested, before you go to jail, that that determination is made and at least for a short period of time, that determination is enough to legally justify that incarceration pretrial.

Seth Barron: That's an interesting point that I think a lot of people miss. One other aspect of this whole debate that's interesting to think about is what will the new jails be like? Because the plan is, originally, some of these jails were going to be 40 stories high like giant jail skyscrapers. I looked it up and that would be taller than the tallest building in 25 states.

Rafael Mangual: Yeah.

Seth Barron: Now I don't know how many jail skyscrapers there are in the world, but it doesn't sound like the most efficient way to jail people. And our colleague, Nicole Gelinus, has a very interesting piece about this. I wonder, what are your thoughts? Because if you look at Rikers Island, it's about half the size of Central Park.

Rafael Mangual: Right.

Seth Barron: You can have jails that are fairly low slung. There's plenty of room for outdoor recreation. You can look at it on Google maps, there's basketball courts, there's a jogging track.

Rafael Mangual: Right.

Seth Barron: Presumably, you could have gardens, you could have a farm. There's all kinds of things you could have, especially if you have so few prisoners.

Rafael Mangual: Right.

Seth Barron: So what will jails in the middle of downtown Brooklyn, like a skyscraper jail be like?

Rafael Mangual: Yeah, it's anybody's guess. You're certainly going to lose a lot of outdoor space, right? I guess you could have a rooftop basketball court or something like that, or tennis court. But there's going to be significant complications and one of the things that I think is really going to be interesting to watch play out is the movement of prisoners and guards within the jails. Right? You're going to have elevators obviously to take people up and down. First thing that comes to my mind is what happens if there's a fire? Where do they go? Are we going to build tunnels to get these people to and from court if they're going to be near courthouses? How much is that construction going to cost? What is that going to be like? What are the logistics of that going to involve? When you need to move people in a really secure environment like a jail, the transaction costs of that are already high and it would seem to me that a vertical jail complex are only going to add to those transaction costs.

Seth Barron: Yeah. Because the stipulations that the city council's trying to write into law in terms of the design of the facilities, it's clear that what they're basing, what their model is like, Norwegian or Dutch prisons where people live in almost a dormitory style or like a suite and they have a kitchen and there's recreation and they're left to themselves. Now, as Nicole pointed out at Rikers right now, there's very strict rules about when you transport people around you have to make sure that certain categories of prisoner are not near each other, like passing in the hall. And I gather that means is members of different gangs. So there's all kinds of weird things that complicate, like you said, that just the logistics of moving somebody from one floor to the next would seem to militate against having this open humane prison system.

Rafael Mangual: Yeah. Well also the idea that you can just ... It just doesn't make sense to me that we ought to adopt that model from a country or set of countries in which there are categorical differences in the people who are incarcerated, right? We have significantly more crime here in the United States, significantly more violent crime, more gun crime. My guess is is that it would be a lot more dangerous to give Rikers inmates, for example, that much freedom and that much access to potentially dangerous tools. Prisoners and jail inmates, not just in Rikers but around the country, are just incredibly ingenious in the the way that they can fashion weapons out of sporks or even rolled up pieces of paper. It strikes me as dangerous to give the jail inmates at Rikers Island again, especially if you're reserving those carceral resources for truly the worst offenders, it strikes me as not a very good idea to give them that level of freedom.

Seth Barron: So let's just step back for a minute. January 1st, 2020 bail reform comes into effect. Who's going to be on the streets? Who will not be going to jail after they they're arrested? What kind of crimes can you get arrested for and then just immediately be turned around for?

Rafael Mangual: Burglary, I think burglary in the second degree is one of the more serious crimes that are on that list, some versions of low level assault I believe as well. I think resisting arrest might be on there. It's also important to keep in mind that this limits bail determinations just to the offense for which someone is arrested, right? So you may get arrested, for example, for the 14th time for something like selling loose cigarettes. And that may not sound like a very serious charge but that charge may not always reflect the danger that someone poses to society, which means that this may not necessarily be someone you want out on the street. One of the really big downsides to the New York bail reform is that judges will not be able to consider that danger in making those decisions.

They won't be able to consider what a person's past record will mean for their communities if they're not held pretrial. So yeah, it's a long list of offenses, some of which are more serious than I think the public is probably comfortable with. But this is what we're going to have to live with. And it's also going to be coupled with not just bail reform, but with discovery reform, which prosecutors seem really concerned will dissuade a lot of potential witnesses from coming forward and corroborating criminal cases, that the transaction costs of conducting a criminal prosecution will be so high as to price certain things out in the market, so to speak. So in the whole, I think we're potentially in for a rude awakening in the next few years.

Seth Barron: Great. Well, we'd love to hear your comments about today's episode on Twitter @CityJournal #10blocks. If you like our show and want to hear more of it, please leave ratings and reviews on iTunes. This is your host, Seth Barron. Ralf Mangual, thanks for joining us.

Rafael Mangual: Thanks again for having me. Always a pleasure.

Photo: DougSchneiderPhoto/iStock

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