Incarceration Is Always a Policy Failure

Instead of building ‘humane jails’ to replace Rikers Island, let’s push the NYPD to cut down on arrests.

During a public hearing at Queens Borough Hall last month, more than 300 Kew Gardens residents lined up to discuss New York City’s plan to build a new jail in their neighborhood. Some attendees articulated stereotypical NIMBY concerns such as the literal long shadow the building would cast as well as the vehicle traffic it would bring. Others, recognizing the carceral significance of the hearing, filled the hall to chant, “If they build it, they will fill it.”

That hearing was one of the first steps of an approval process for a new jail in every New York City borough except Staten Island to replace existing jails on Rikers Island. Together, the four proposed new jails would house approximately 5,000 people by 2027 (the current population of Rikers is around 7,500). On May 6, the Mayor’s Office of Criminal Justice told The City they expect the number to drop to 4,000 because of state bail reform efforts. JustLeadershipUSA, an advocacy group dedicated to cutting the U.S. correctional population in half by 2030, envisions a jail system that would hold fewer than 3,000 people citywide by 2024.

On May 8, the Brooklyn Community Board rejected its borough-based jail; on May 14, Queens Community Board 9 rejected its jail. Manhattan and the Bronx will vote on their jails later this month.

But New York City has not committed to closing Rikers. Mayor Bill de Blasio’s 51-page report on Rikers leaves to a future administration the task of actually shuttering existing jails.

The mayor seeks to invest $10 billion to start building four new facilities as soon as 2020, whereas the tentative goal of closing Rikers’s eight jails would not begin until 2026 or later. “In order to [close Rikers],” the New York City website reads, “we must have a jail population that is small enough to be housed safely off Rikers Island.”

Misguided focus on ‘arrests as outputs’

But we don’t have to open any new jails in order to close Rikers.

The mayor’s proposal relies on the major fallacy that New York City must reduce jail commitments before reducing available jail space. The truth is the opposite: Closing jails can lead to reductions in pretrial detention and incarceration. Instead of replacing Rikers’ detention capacity with “humane jails,” New Yorkers should seize this opportunity to pressure the NYPD to reduce its use of arrest.

An individual can only end up in jail if the police decide to arrest them, and unless state law explicitly mandates an arrest for specific offenses, individual officers have the power to decide whether they will begin the criminal legal process. The NYPD—known for its “zero tolerance” policing tactics, wherein officers ticket and arrest New Yorkers for even the most minor violations—encourages officers to use their discretion liberally. This approach is the product of a mentality shift to “arrests as outputs,” or a CompStat policing culture where a police unit’s arrest metrics are used to gauge its productivity. It relies on the mistaken assumption that increased arrests, no matter the crime or context, reduce serious crime. And some officers have claimed in a lawsuit that NYPD enforces quotas for arrests and summonses, despite a ban on the practice. This is exactly what must change.

Cincinnati jail closure yields shift in policing

There is strong precedent supporting the idea that closing jails can pressure police to cut down on arrests. In 2008, the 822-bed Queensgate Correctional Facility in Cincinnati was shuttered, which eliminated more than one-third of the city’s available jail space. A 2017 study from University of Cincinnati criminologist Robin S. Engel analyzed police responses to the closure. In her research, Engel examined a deceivingly simple, yet powerful question: What happens when the police simply cannot lock up as many people as they used to?

The result was a paradigm shift in how police view arrest: “as a limited commodity rather than as a standard response.”

When the jail closure was announced, critics feared that crime would skyrocket as a result of limited jail space, but the opposite was true. From 2008 to 2014, violent crime in Cincinnati dropped by 38.5 percent, property crime by 18.9 percent. Felony arrests dropped by 41.3 percent, and misdemeanor arrests by 32.7 percent. Engel noted that crime and arrests were already on the decline in Cincinnati before the jail’s closure, but stressed that “the continuation of these downward trends, uninterrupted by the jail closure, is powerful.”

Engel pointed to three factors that explained these decreases. First, the Cincinnati Police Department committed to increasing transparency and legitimacy through the U.S. Department of Justice’s Collaborative Agreement, initiating an enormous change in the organization’s structure and culture. For example, the Collaborative Agreement led the city to create a community oversight institution to review police use of force and other serious incidents (among other reforms).

Second, the jail closure prompted a need for “surgical precision” in arrest and detention, encouraging the Cincinnati police to focus their attention on crimes that threatened public safety. As one Assistant Chief told Engel: “I asked my District Captains to make sure we were not using the limited jail resources for minor violations that could be handled in alternative ways, and to be more strategic about who we were arresting and why.”

Third, police implemented tactics such as focused deterrence, where law enforcement partners with communities to establish anti-violence social norms and provide viable alternatives through social services. At its best, focused deterrence can prevent shootings with minimal use of incarceration, and Cincinnati’s implementation was considered a national model. Such tactics did not require several thousand jail beds. After Queensgate closed, the number of beds in Cincinnati declined from about 2,300 to 1,500, which demonstrated that serious violent crime could be prevented without resorting to the state-sanctioned harassment and sweeping low-level arrests inherent in broken-windows policing. Both Mayor de Blasio and NYPD Commissioner James O’Neill, unfortunately, remain broken-windows adherents, and the city implements focused deterrence with soul-crushing punitiveness that is divorced from community social norms.

The closure of Queensgate forced the Cincinnati police to arrest fewer people, and that decreased arrest rate coincided with a historic reduction in violent crime. It’s powerful evidence suggesting that New York can decarcerate and maintain public safety.

Social services, not jails

Currently, New York City is experiencing its lowest homicide rate in 75 years. There are about three murders per 100,000 people, or just under 300 killings per year, compared with Cincinnati’s approximately 20 per 100,000. New York City’s misdemeanor arrest and felony arrest rates hover around 1,500 and 900 per 100,000. To the city’s credit, the misdemeanor arrest rate is about half of what it was a decade ago. Tellingly, a drop in misdemeanor arrests has not produced an accompanying spike in violent crime. That number can be lowered significantly while maintaining public safety.

Instead of investing $10 billion in new jails, New York City should fund social services and programs that are lacking in communities experiencing high rates of crime and incarceration. Incarceration is incredibly expensive, criminogenic, and dehumanizing: incarcerated people do not receive the support they need to succeed when they re-enter society, people who are sentenced to incarceration are more likely to commit a new crime later, and incarceration itself can function as a “school” where people internalize antisocial norms and crime techniques. Incarceration should only ever be used as a last resort: it is always a policy failure, indicia of where the state has failed its citizens.

Communities most affected by both crime and incarceration are overpoliced and underprotected. In 2018, the NYPD made 808 arrests for rape, but over 5,000 arrests for fare evasion. To remedy this, the city should facilitate community oversight of police and prosecutors, and significantly expand the scope and funding of its participatory budgeting program with a focus on communities that experience the most crime. In 2018, city residents directed the allocation of over $35 million in public funds for everything from technology upgrades at libraries to tree planting; such projects are inexpensive yet enormously valuable to communities especially when compared to a $10 billion jail construction project.

Imagine if New York City’s most vulnerable neighborhoods had the power to establish youth programs, mental health and addiction treatment, affordable housing, and living-wage jobs as they see fit. Investment in under-resourced communities could be further bolstered by police divestment. The NYPD has an annual budget of around $6 billion, and Mayor de Blasio has hired new officers and built new police facilities even as crime rates plummeted.

Even without a radical re-envisioning of budgeting and civic participation, the City Council still has better options than building a new jail in every borough. For example, if the city is truly concerned that closing Rikers without replacement jail beds would make New York less safe, it could expand the scope and funding of existing credible messenger programs, where violence interrupters apply their experience to connect with young men at pivotal moments and stop conflicts from escalating into shootings. Much like in focused deterrence, violence interrupters attempt to establish anti-violence social norms through “shooting responses,” vigils held after shootings that emphasize the community’s unwillingness to tolerate violence. Credible messenger programs are associated with significant reductions in gun violence. The city could also choose to pursue nonpunitive order maintenance tactics, like funding new community gardens or other green spaces in high-crime neighborhoods.

This fall, the City Council will most likely call a vote on the construction of new jails to replace Rikers. If it does, New Yorkers must ensure that we aren’t just moving pretrial detention from existing inhumane facilities to a slightly more humane set of facilities, oppose any construction of new jails, and instead choose to invest in communities most harmed by overpolicing.

Jonathan Ben-Menachem is a criminal justice advocate who also writes about issues including policing and the criminalization of poverty.