New York City's incarceration rates have been dropping steadily, but a new report from the Center for Court Innovation, in collaboration with the Vera Institute of Justice, suggests the city’s jail population can still be brought significantly lower. The report looks in detail at key decision-points along the path from arrest through bail to sentencing and makes concrete suggestions for how to improve the system, especially for those defendants detained awaiting trial. In this New Thinking podcast, Matthew Watkins speaks with Michael Rempel, the report's lead author and the Center's research director.
The following is a transcript of the podcast:
MATTHEW WATKINS: Hi, I'm Matthew Watkins and you're listening to the New Thinking podcast from the Center for Court Innovation. Both crime and incarceration rates have been dropping steadily in New York City, but a new report from the Center, in collaboration with the Vera Institute of Justice, suggests the city's jail population can still be brought lower; a move that could also cut costs substantially. The report looks in detail at the process, from arrest to sentencing, and makes concrete suggestions on how to improve the system. To discuss the report, I'm joined today by its lead author, Mike Rempel. Mike is also the Director of Research here at the center. Mike, thanks so much for joining me today.
MIKE REMPEL: Good to be with you.
WATKINS: This report relies principally on industrial amounts of data. What kinds of conclusions, what kinds of perspectives can you get on a system as complex as the New York City correctional system, from looking at the data, that you might not be able to get without access to those kinds of numbers?
REMPEL: We can learn a lot. One of the advantages we have in New York City is that we actually have outstanding data sources available to us. We have the state’s Criminal Justice Agency, which is one of the best in the country at maintaining a very clean data set. Then, we merged that data with a variety of local data sources.
The idea for the project was actually developed by senior staff at the Mayor's Office of Criminal Justice in the city. What they wanted was something that they called a path analysis. What this meant, and what we did, was that we looked at the flow of criminal cases from where they start, at the point of arrest, to the next step, which is the arraignment. That's the very first appearance in court. To the next step, which is the whole processing of a case that takes place, from the arraignment until the final court appearance, which is the disposition.
WATKINS: There can often be a long gap in between.
REMPEL: There can often be long gaps in between, so this is the path we took. Then, the purpose of the project ... The purposes were essentially two-fold, to describe what happens at each of these decision points. Second, to critically analyze what happens at each of these decision points, and whether what happens is what we think logically should happen. For example, are individuals sent to jail who are in fact low risk and could be better supervised in the community? Or, are there delays in the process that is causing people to spend excessive trips to court or excessive time in Rikers Island, potentially? We looked at facts in each stage. Those were our two questions.
WATKINS: If we start with the first decision point, that would be the arrest decision point. What does your research suggest is happening at the arrest stage currently, and what's unexploited in terms of trying to reduce, safely, the number of people going to jail in New York City?
REMPEL: At arrest we focused on two potential decisions that a law enforcement officer could make. The first is whether to make what we call a custodial arrest, where the defendant is actually taken into custody and after booking at the precinct, is sent to a holding cell in the criminal court until arraignment, which happens within 24 hours. Essentially they'll spend a night in a holding cell.
WATKINS: Custodial arrest for a layperson just means arrest?
REMPEL: Arrest and taken into custody.
REMPEL: There's a second kind of arrest where they are booked. They're taken to the precinct, but then they do no spend a night in a holding cell. Instead, they're given a ticket. They're released, and they can come back for their first court date, the arraignment, sometime later. As it happens, it's several months later.
That's the first decision that we looked at. Should law enforcement make a custodial arrest? Or rather, we looked at the extent to which law enforcement makes a custodial arrest or issues a ticket. This focuses mainly on misdemeanors. Those are the cases that are eligible potentially for a ticket.
Second, we looked at whether there are certain kinds of cases that would be appropriate for neither of those two outcomes, and instead could be appropriate for diversion. Where in fact, the law enforcement officer might send an individual directly to a program of some kind. In effect, they could complete that program, the case could then never be forwarded, and never appear in court. We looked at that second potential decision as well.
WATKINS: Broadly speaking, how is the system doing right now in terms of diverting those people it's able to divert, or giving desk appearance tickets to those people who don't need to have a custodial arrest?
REMPEL: Let's start with diversion. Right now diversion at the police stage is very, very new. It's actually been a focus of the current mayoral administration. There are a couple of very small scale pilot programs.
WATKINS: They could be doing more diversion, in essence. That's what the numbers suggested.
REMPEL: There could, in theory, be more on diversion. What we actually found is that one could make a credible, statistical case for more diversion. What we found is that there are a great number of criminal cases that go through the courts whether it's through a desk appearance ticket, a night in the holding cell, making one court appearance, or sometimes making multiple court appearances. Potentially, with each court appearance requiring a day, potentially, waiting in court. None of us ... We found that we can statistically isolate certain categories of cases, that at the end of this process are extremely likely to have the case dismissed.
For example, a first-time, non-violent, misdemeanor defendant, ages 16-24, has an 80% likelihood of having the case dismissed. Since we know these cases are overwhelmingly likely to be dismissed anyway, instead of putting them through a process that could undermine their confidence in our justice system. They might be an appropriate candidate for diversion out of court, where they go to a program, perform several hours of something, and then are released.
WATKINS: Right, particularly at such a young age when the interactions with the criminal justice system can be so damaging and consequential.
REMPEL: Exactly. It's interesting, the justice system. It's actually responsive to the young age. That's why in the end these cases of young people are particularly likely to be dismissed, but the lack of responsiveness is in the process leading up to the dismissal, that perhaps could be circumvented.
WATKINS: Right, so we need to go the extra step of actually diverting them before we just dismiss their cases.
REMPEL: Right. Unlike diversion, desk appearance tickets are already very common. There are 10's of 1000's issued each year. What we actually found is that law enforcement, by no means, overuses desk appearance tickets. In fact, we found that only 1% of individuals who currently receive a desk appearance ticket pose a high risk of committing a future crime. In other words, it's very low-risk individuals who are sent right back out and told to return to court at a later time.
On the other hand, we actually found that desk appearance tickets are arguably underutilized. We did find racial dis-proportionalities in their use because black and Hispanic defendants are less likely to receive a ticket than white defendants, even if they have comparable characteristics.
WATKINS: If we turn to look at the question of arraignments, as related to these desk appearance tickets, there's often a long wait in-between the issuance of the ticket and the arraignment. Is that correct?
REMPEL: Right. We had some fascinating findings on that. Again, remember that the desk appearance ticket is supposed to be a positive for the defendant because they avoid the overnight in the holding cell. They basically are released on their own and they can go home several hours after the arrest.
However, what we found is that the court date, when the have to return to court for their arraignment, averages two months later city-wide, and three months later in the Bronx. This long gap between the arrest and the court date leads many individuals to forget that they have the court date. They don't appear. A warrant is issued. They're re-arrested.
We then found that even though these are primarily very low-level misdemeanor cases— they wouldn't have received the ticket in the first place if it was not a low-level case— We found that if this process happens and in the end they warrant, because they neglected their court date, when they are returned to court they actually are potentially exposed to serving jail time pre-trial.
WATKINS: Let's turn a little bit to look at this question of risk assessments. Maybe you could explain for people a little bit what a risk assessment is? Then, what your study found about how defendants of different risks levels are being treated by the system, and where there are some unexploited areas, in terms of reducing jail numbers.
REMPEL: Great. Risk assessments are used currently across the country. The purpose of a risk assessment is to use statistical information that is accurate for large groups of individuals, and to apply them to specific cases in order to understand their likelihood of re-offending.
Now, typically risk assessments will look at different types of risk. One type of risk might be Person-X has a low or high-risk of committing some future offense. Very often people are not just interested in that, because what they're interested in is a serious crime against the person. Often, risk assessments will focus on risk of violence, which really raises the question of risk to public safety.
That's risk assessment in a nutshell. What we did in this study is, we didn't use a risk assessment that is currently in use. In effect, we created our own risk assessment tool based on data we had, in order to in-turn critically examine who's going through the system.
Some the most interesting findings from that came during the pre-trial period where we found that a majority of those who currently are sent to jail prior to a conviction, actually pose a relatively lower, at most moderate, risk of re-offending. That led to a key area of reform, in terms of recognizing that there are large numbers that actually could be safely supervised in the community.
WATKINS: Essentially the suggestion from the numbers is that the current system is being too conservative, in terms of alternatives to detention vis-à vis risk levels.
REMPEL: As of several years ago, the current system was definitely being extremely conservative. Just to give you a sense of some of the statistics, we found that of those who are sent to jail prior to a conviction, right now 64% of them are in a minimal, low, or at most moderate-risk category. That's misdemeanors. Then among the felonies it's 59% in these low-risk categories. This is a pool that's ripe for diversion.
This has been the case for years. The city currently is piloting a solution to this very problem. What our findings speak to is the idea that this solution could actually be used with very, very large numbers of individuals.
WATKINS: Let's turn to look a little bit at the question of bail, which your report goes into in some detail. Let's say a defendant is ordered by a judge to pay a set amount of cash bail at his/her arraignment. What happens at that point? Is it easy for the person to then pay their bail? The bail is supposed to keep them out of jail, right?
REMPEL: The decision to set bail, as you indicated, happens right at the arraignment court appearance. The defendant can't pay the bail because right after the arraignment court appearance the defendant is then escorted to the back and prepared for transport to a city jail.
What actually happens is that a family member or friend, who ideally is in the audience at arraignment, hears the bail amount. Then, they have a certain number of hours, potentially, to pay the bail at a window in the courthouse. Now, what we found is that in point-of-fact, in only 11% of cases where bail is set, does the family member or friend actually pay bail successfully before the defendant is transported to a city jail.
The reasons for this are many. It could be that a family member or friend was not in the courtroom. It could be they were not notified. It could be that the defendant didn't have an opportunity to call a contact that the defendant had. It could be that the friend or family member was in the courtroom, but because of how quickly the proceedings move, didn't actually catch or understand what the bail amount was, didn't know where to go. It could also be that in any given case, because of the schedules of when the buses leave the courthouses to go to jail, that their window of time ... Which is theory could be up to three hours, was actually much shorter. The family member or friend could have paid bail right at the courthouse, but the defendant left the courthouse and was bused to jail before that could happen.
There are number of reasons this happens, but the up-shot is that it's a gap in the system that only about 1 in 10 defendants, for whom bail is set, can get it paid and avoid any jail time.
WATKINS: Again, this is another decision point in the system you've identified that is leading, arguably, to unnecessary detention.
REMPEL: Correct. What we found in a lot of cases, what happens is the defendants do have the financial wherewithal to get bail paid. What will happen after several days— They will spend several days in jail. They will have the experience that one has in jail, which is an experience that can be deeply scarring psychologically. Then, after several days later they will be released because they were in fact able to make bail.
WATKINS: Now, there's a larger debate about cash bail going on in this country that we're not going to get into here. I can see the relief on your face. The idea behind bail is it's meant to guard against either someone being a flight risk, failing to appear at their next court date, or being a risk to public safety. When your research looks at why bail is being set in the New York City system currently, is that how the system is actually functioning?
REMPEL: No, it's not. It's actually interesting, legally the justification for bail in New York State is to secure court attendance. In other words, you pay bail and since you're going to lose the bail money you paid if you don't show up for your court dates, you're incentivized to show up for your court dates.
Not our research, but what research by others has shown, is that actually about 15% of New York City defendants fail to appear at one of their court dates. Actually, most of those who fail to appear for a court date, they probably forgot. In the end, they tend to show up to court soon thereafter. Only about 5% of defendants both fail to appear for one of their court dates and have still disappeared 30 days later.
Others have actually found that fail-to-appear is not a great problem in the city. However, in our study we looked at what really drives bail decisions. We found that it was the charge. When we compared misdemeanor defendants to non-violent felony defendants to violent felony defendants, the likelihood that the prosecutors will request bail and that the judges will set bail goes much higher.
We found other factors related to criminal history were also important. Everything was dwarfed by the paramount importance of charge. Even though charge is actually unrelated to one's likelihood of not appearing for a scheduled court date. It is somewhat related, but not strongly related, to future risk to public safety.
WATKINS: If we just turn to look at sentencing now, your report looked for example, specifically at misdemeanor offenses. Often those sentences are very, very brief. What does that suggest to you in terms of another decision point in the system?
REMPEL: We should pause for a moment on that, and just observe that in some ways the quite low use of jail at the sentencing stage for misdemeanors is a strength of the system. We found that of those that have a conviction, only 16% of misdemeanors have a jail sentence. That means New York City is not drastically overusing jail at the sentencing stage.
However, we found that when jail is sentenced with misdemeanors, at the sentencing stage, in 4 out of 5 cases, the sentence is 30 days or less. A jail sentence of 30 days or less, on its face, is too short to incapacitate the defendant for a meaningful enough period of time to prevent future criminal behavior.
On the other hand, it's not too short to potentially increase the likelihood that these defendants will actually engage in criminal behavior after they are released, as a negative effect of the exposure to others who are also involved in the criminal justice system while they are in jail who, in some cases, may be up on more serious charges, may have more serious criminal histories, or may be higher-risk individuals.
While the strength of the system is the low use of jail, we found that even the use that exists probably could, and should, be avoided because it's so short, to produce no meaningful benefit.
WATKINS: And could be counter-productive.
REMPEL: And could be counter-productive.
WATKINS: Right. If we just want to turn lastly to the topic that will interest a lot of people, I'm sure, and that is cost. It sounds like you've identified a number of decision points in the system that would allow New York City to safely reduce its jail population, potentially quite significantly. What kinds of cost savings could that produce, do you think?
REMPEL: Cost savings that are significant, but not as significant as one might expect in the short term. The reasons are as follows. Jail is extremely expensive in New York City. On average it costs about $208,000 to incarcerate someone at a local jail per year. Less than a year, then prorate that on a daily basis.
WATKINS: That's far above the national rate.
REMPEL: That's far above the national rate. Jail is extremely expensive. In the long term, slashing the jail population would reap tremendous fiscal benefits to the city.
In the short term, one should candidly understand that you don't get a defendant per defendant reduction in costs just because you now are no longer filling a jail bed. A lot of the costs are what we call, fixed. You still have to maintain the jail. You still, unless you drastically reduce the jail population, are not going to shrink your workforce. You're still going to pay the pension to people who use to be in the work force. You're still going to pay everyone's salaries. You're still going to have to have subsidiary contracts with health and mental health providers for individuals in the jail.
A lot of the costs change slow. People should understand that you could slash the jail population in half. If you do that, the fiscal savings will be overwhelming in the long term, but it may take some time.
WATKINS: That's great. Mike, thanks so much.
REMPEL: Sure, thank you.
WATKINS: I've been speaking with Mike Rempel. He's the Director of Research here at the Center for Court Innovation. Mike is the lead author of a new study called Jail in New York City: Evidence-Based Opportunities for Reform. It's available on our website, CourtInnovation.org. My name is Matt Watkins. Thanks for listening to the New Thinking podcast.