Rebranding Mass Incarceration: The Lippman Commission and Carceral Devolution in New York City.

Author:Kurti, Zhandarka
 
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Abstract

In 2017, after a yearlong study of the conditions on Rikers Island, the Independent Commission on New York City Criminal Justice and Incarceration Reform (the Lippman Commission) released its recommendations to close the last penal colony in the United States and replace it with a series of neighborhood-based jails and enhanced community supervision. The commission was spearheaded by former Court of Appeals Judge Jonathan Lippman in collaboration with nonprofits. New York City Mayor Bill de Blasio pledged support to the plan. This article examines the Lippman Commission report and its recommendations to close Rikers Island as a contemporary case study in local decarceration and carceral devolution. We outline theories of decarceration and carceral devolution, highlight their centrality to the movement to close Rikers Island through a close reading of the Lippman Commission report, and conclude with reflections on what this change in New York City's carceral philosophy means for contemporary social justice movements.

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"WE MUST REPLACE OUR CURRENT MODEL OF MASS INCARCERATION with something that is more effective and more humane," writes Judge Jonathan Lippman (2017, 3) in the introduction to A More Just City, the final report of the Independent Commission on New York City Criminal Justice and Incarceration Reform. (1) The report calls for radically downsizing the New York City jail system, closing the Rikers Island complex, and relocating its remaining population to smaller facilities in the downtown of each borough. A subsequent report, Justice in Design (2017), drafted by a commission subcommittee in partnership with the nonprofit Van Alen Institute, proposes designs for these new jails. As the present New York City jail population hovers around 9,000, (2) the commission's plan to populate these new jails hinges on cutting the citywide jail population in half, through a combination of bail reform and community-based surveillance, to be accomplished through an expansion of alternatives to incarceration, programs that create new social roles for nonprofit organizations and the Department of Probation. Noticeably absent in the commission's recommendations are substantive programs for employment, public housing, and material assistance.

The commission arose, in its words, at a "unique moment" (Lippman Commission 2017, 22). Few, if any, of its ideas are new; the floor plan for the new jails, despite being touted as the product of a participatory action research project with directly affected community members, is an old model that has been in place at the Manhattan Detention Complex--known as the "Tombs"--for decades (ibid., 79). The present moment is unique not because of its bold new ideas, but because of the possibility of discrediting old ones. Mass incarceration as the primary means of managing poverty and urban marginality has entered a crisis of legitimacy alongside its guiding ideology, law and order. It is no longer a coherent political project with broad-based support. In fact, even though Jeff Sessions, Trump's former attorney general, vowed to renew the war on drugs, politicians across the spectrum, motivated largely by fiscal concerns, have sought to curtail the state's reliance on incarceration. We find ourselves in a crucial moment, when the status quo is no longer tenable, and radical offerings can move from the margins to the center of political debate. This is the moment enjoyed by Judge Lippman and his cohort of criminal justice reformers. Such an opportunity, we argue, is not to be squandered. This is why we have adopted such a critical stance toward many reformers with whose fundamental ambition--the reduction, to an absolute minimum, of people locked in cages--we wholeheartedly agree, despite a number of grave reservations about their methods for achieving it. As scholars of penal transformation, we believe that previous historical moments can offer some important perspective for understanding criminal justice reform and carceral state formation.

For clarity's sake, a brief definition of mass incarceration is in order. Following Gilmore (2006), Alexander (2010), Gottschalk (2014), and Wacquant (2009), we define mass incarceration as the entire regime of managing social crisis by means of police, courts, and prisons. This means social management using violence, incarceration, surveillance, and any entanglement in the carceral net--the continuum of coercive social institutions threatening to lead one from unrestricted bodily movement to confinement in a cage. Accordingly, we critically examine the role played by probation and other alternatives to incarceration in expanding the presence of the carceral state in the lives of working-class residents, in place of noncarceral means of social reproduction--which, we argue, is the essence of mass incarceration.

In what follows, we argue that the Lippman Commission's vision represents the hybridization of decarceration, narrowly understood as the state-sponsored closing down of prisons (Scull 1977, 1), and carceral devolution, defined by Reuben Miller (2014, 308) as "a set of interrelated policies that transfer carceral authority--in this case, the authority to rehabilitate and supervise prisoners--from federal and state-based institutions to local ones." It is possible, we assert, for substantive decarceration to be accomplished while the carceral net widens and expands, representing not an alternative to mass incarceration but a mutation and, in ideological terms, a rebranding. We make this case through a close reading of the commission's report, which we recognize to be on the vanguard of progressive penology in the United States. In so doing, we draw from the literature of critical criminology, and its robust critiques of the social relations and ideologies that shape criminal justice reform, in order to situate the present attempts to restructure the New York City jail system within a broader political and economic context. By way of conclusion, we reflect on what this changing terrain means for the tools we use to understand criminal justice reforms and carceral state formation.

Rikers Island: A National Embarrassment

The Lippman report denounces conditions in New York City Department of Correction (DOC) facilities at Rikers Island in strident language that may come as a surprise, given the commission's composition of 27 representatives from the city's political, nonprofit, law enforcement, and real estate sectors. (3) The introduction, penned by Lippman himself, declares in boldface "more jail does not equal greater public safety," decries Rikers Island as "a stain on our great City," and calls the facility, in still more boldface, "a 19th century solution to a 21st century problem" (Lippman Commission 2017, 2). On this point, the commission can certainly be taken at its word. Rikers Island, the so-called "Guantanamo of New York," is a grave embarrassment for a city purporting to lead the nation in criminal justice reform. Home to a city jail since 1935, (4) Rikers was established as a progressive alternative to the notorious and discredited Welfare Island penal colony by a "dream team" of progressive penologists using much of the same language surrounding humanist penology we see around new jail construction today (J. Mooney, J. Shanahan, unpublished manuscript). In the time since, Rikers has been the subject of several waves of crisis and reform. One wave in particular, under the progressive administration of Anna M. Kross, contributed substantially to the expansion of Rikers Island's carceral capacity and its centrality in the city's jail system, through the construction of new institutions, as well as a bridge connecting the island to mainland Queens. When the progressive administration left, and the rehabilitative programs intended for the new facilities went unrealized, this infrastructure remained. The structures built and designed by Kross served as ground zero for mass incarceration in New York City, during which time the penal colony became notorious, including a particularly nasty facility which bears the venerable reformer's name, the Anna M. Kross Center (Shanahan 2017a, Shanahan Norton 2017).

A series of lawsuits dating back to the late 1970s has furnished the public with a steady stream of horror stories, in addition to placing ongoing financial and organizational strain on the DOC. (5) In 2014, the Rikers complex was the subject of an investigation by the Manhattan US Attorney's office, which found widespread use of excessive force and violence against adolescents, a draconian regiment of solitary confinement, and the brutal treatment of inmates by correctional officers (Department of Justice 2014). In recent years, outlets like The New York Times and New York Magazine have scrupulously documented abuse and inhumane conditions at Rikers Island. Simultaneously, in the space of two years, the city's Department of Investigation released three reports denouncing the DOC's security protocol, hiring practices, and privately contracted health services, and amplifying the Department of Justice's findings that faulty administration of Rikers extends up and down the chain of command (New York Department of Investigation 2014, 2015a,b). Perhaps most damning is the story of Kalief Browder, a young black (6) man charged with robbery and held captive on Rikers Island for three years without trial, much of it in solitary confinement in the Robert N. Davoren Center for juveniles, dubbed the "house of pain." Browder's exoneration and subsequent suicide, detailed in the documentary series Time: The Kalief Browder Story, publicized the violence of the institution, the widespread use of solitary confinement, and a bail system that relegates low-income detainees to brutal jails while those who can afford bail await trial on the outside.

The closure of Rikers was also seriously considered in the early 1980s...

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