How many more people have to catch COVID-19 at Rikers Island before Mayor de Blasio takes decisive action? At least 39 incarcerated people and 21 Department of Correction staff have tested positive to date, and the real numbers are likely much higher—and climbing fast. As the crisis grows, the city is dragging its feet. By Monday, de Blasio confirmed the release of around 75 people, adding that 200 more are under consideration. These actions, however necessary and laudable, are dangerously insufficient. By contrast, New York City’s Board of Correction is calling for the release of 2,000 people, and fast, arguing that immediate action must be taken to prevent widespread infection. Underscoring the urgency of the moment, people locked up in two Rikers Island dormitories have refused to leave for work or meals, demanding similar releases. Time is of the essence. Will the mayor listen?

“We do not have a magic number at this point,” de Blasio told reporters Sunday. “This is something we’ve never dealt with before.” 

With respect to the novelty of the present moment, this is not quite true. In 1983, amid another public health crisis, the federal courts ordered a mass release from unsanitary, overcrowded city jails – and Mayor Koch had a choice to make between public health and the politics of “law and order.” His choice solidified the hothouse explosion of mass incarceration in New York State, and the funding priorities that have left New York City’s working people on both sides of the bars so vulnerable to the coronavirus in the first place.

The 1974 fiscal crisis had allowed Wall Street to dismantle much of the city’s human service infrastructure, just as unemployment and city disinvestment were laying waste to working-class neighborhoods across the city, especially in communities of color. New Yorkers were told to do more with less, and police and jails took the place of public services and living wage employment as city investment priorities shifted toward tax incentives for rich developers and “law and order” for the working class. Predictably, the city’s jail population swelled and DOC facilities became evermore crowded, squalid, and dangerous.

Like today, jail rebellions pushed reformers to act, and class-action lawsuits throughout the 1970s challenged the legality of the city’s filthy, bulging jails. Time and again, federal courts found DOC facilities to violate the Eighth Amendment prohibition of “cruel and unusual punishment.” Inspired by the national Prisoners’ Rights movement, the primary overseeing federal judge Hon. Morris Lasker believed that a jail which could not meet basic standards of sanitation and safety did not possess the legal right to imprison people.

The situation came to a head when the NYPD responded to an epidemic of addition to crack cocaine by arresting, on deliberately inflated charges, anyone found in possession of the drug. The city’s decision to treat the public health problem of addiction as a matter for “law and order” pushed the city’s jails to the breaking point.

In November of 1983, frustrated by a trend of municipal foot-dragging that stretched back over a decade, Judge Lasker ordered the city to release enough people to meet the minimum legal requirements for DOC capacity. Like most people on Rikers today, the New Yorkers the city released were not sent to jail as dangers to the community, but were locked up simply because they couldn’t afford to pay to get out.

In all, 621 people were freed. The apocalypse that Koch predicted did not come to pass. Instead, families and communities across the city got their loved ones and neighbors back, and people facing legal charges could await their day in court from the outside – the same as people with money were allowed to do. The rate of these people’s “failure to appear” to face these charges was well within the average for people granted bail, ten to fifteen percent. In other words, Lasker’s mass release revealed there was no reason for these people to be locked up in the first place.

These facts placed Koch at a crossroads. The mass release provided a model to help scale back the city’s reliance on incarceration, begin to treat addiction as a public health problem, and devote city funds toward issues underlying addiction – unemployment, disinvestment, and other manifestations of structural racism – instead of more human cages. Instead, Koch doubled down on racial dog-whistles and the lexicon of law and order, vilifying the people locked up in the city’s jails, and vowing to build so many new cells that the city would never again have to worry about running out of space. The result was a massive expansion of the city’s capacity to lock people in cages. DOC’s capital budget increased 3000 percent from 1980 to 1988, laying the final foundation stones for Rikers Island as we know it today.

Today another public health crisis is highlighting the failure of the healthcare system, housing, workplace protections, and basic social services for tens of millions of people within the United States alone. De Blasio faces a crossroads similar to what Koch faced in 1983. To keep people caged up as they await almost certain exposure to a potentially fatal disease – even, we are learning, for the young – is clearly “cruel and unusual punishment.” This is just as true for pretrial detainees as it is for the minority of the Rikers population convicted and sentenced to a year or less (and most often much less), whose short sentences indicate that courts do not consider them dangerous. Sadly, by using rhetoric that vilifies the people locked up on Rikers, and moving to re-open the notorious Eric M. Taylor Center and expand the city’s jail capacity in the name of “social distancing,” de Blasio seems to be following in the footsteps of Ed Koch.

There’s still time for de Blasio to do the right thing. A mass release in the name of public health could signal a watershed in shifting priorities from law and order policies that fail distressed communities, toward meaningful investment in vital resources that foster the underlying security and everyday wellbeing of New Yorkers. And it could demonstrate, as did the mass release of 1983, that countless more captives of New York City’s penal colony should be at home. It might be a lot more than 2,000 who we can set free in the end. The mayor finds himself at a crossroads. Will he make the right choice?

---

Jarrod Shanahan is an assistant professor of criminal justice at Governors State University and has written extensively on the history of Rikers Island.