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CJA

Research Brief No. 30

NEW YORK CITY CRIMINAL JUSTICE AGENCY, Inc.

September 2012

A series of reports summarizing current research from CJA Executive Director, Jerome E. McElroy Director, Research Dept., Richard R. Peterson, Ph.D. Research Brief Editor & Deputy Director, Research, Mary T. Phillips, Ph.D. Graphics & Production, Raymond P. Caligiure Administrative Associate, Annie Su

CJA is a not-for-profit corporation that provides a variety of criminal justice services under a contract with the City of New York. CJA staff interview defendants arrested in New York City, make recommendations for pretrial release, and notify released defendants of upcoming court dates. Within the Agency, the Research Department conducts studies covering a broad array of criminal justice policy concerns. The Research Brief series summarizes the results of some of these studies. New York City Criminal Justice Agency, Inc. 52 Duane Street New York, NY 10007 PHONE: 646 213-2500 FAX: 646 213-2650 WEB: www.nycja.org © 2012 NYC Criminal Justice Agency, Inc.

New York City’s Bail System — A World Apart By Mary T. Phillips, Ph.D. The National Symposium On Pretrial Justice held in Washington, DC, last year drew attention to deep flaws in pretrial release decision making in this country. At the same time, it highlighted some striking differences among jurisdictions in the ways in which release decisions are made and the legal frameworks within which various state courts operate. Symposium participants reached a consensus on many features that the nation’s pretrial justice systems should have, and they were enumerated in a set of published recommendatrions — all of which have long been endorsed by the American Bar Association (ABA). New York City already has some of the recommended features, setting the state and City apart from the many jurisdictions across the country that do not. However, New York lacks other recommended features that are in place widely elsewhere. In this Brief we review some differences between New York City’s

pretrial justice system and the rest of the country. We begin with a state-by-state comparison of key provisions of the laws governing bail and release decisions. Next, we examine pretrial release outcomes, comparing New York City to other large U.S. cities. Sharp contrasts were found in release rates, types of pretrial release, and bail amounts. We also consider whether these differences in release practices have implications for pretrial misconduct. We conclude with a review of the National Symposium recommendations, pointing out the changes that would be required in order to bring New York City into compliance. Although New York already does well on some measures, full compliance would require statewide legislative action as well as local initiatives. The full report from which this Brief is excerpted also summarizes a decade of bail research on many other topics affecting bail, release, and detention in New York City.

This Research Brief is adapted from A Decade of Bail Research in New York City (2012) by Mary T. Phillips, Ph.D., Deputy Director, Research Department The full report is available on CJA’s web site: www.nycja.org/research/research.htm Research Assistance: Raymond P. Caligiure, Miles H. Riemer-Peltz Systems Programming: Wayne Nehwadowich Address comments to the author at mphillips@nycja.org Please cite as follows, adapted to your citation style: Phillips, Mary T. 2012. “New York City’s Bail System — A World Apart” Research Brief series, no. 30. New York: New York City Criminal Justice Agency, Inc.


CJA

Research Brief Comparison of State Laws Governing the Pretrial Release Decision

In the wake of the Federal Bail Reform Act of 1966, many states passed laws that authorized release on recognizance and established risk of failure to appear as the only consideration in pretrial release decisions. The 1966 Act did not address danger, except for defendants charged with capital offenses, who could be detained to protect the community. The Bail Reform Act of 1984 amended the 1966 Act to authorize federal courts to consider danger to the community in non-capital cases, in addition to risk of failure to appear, and to allow preventive detention without bail for dangerous defendants. Following the Supreme Court’s decision in United States v Salerno upholding the Act’s preventive detention language, states began revising their laws accordingly. By 2010, only three states in addition to New York still did not allow any consideration of public safety. States have been slower to follow suit on preventive detention, with 27 states currently authorizing it in at least some circumstances. (New Jersey will become the 28th if a constitutional amendment passes in November 2012.) New York, along with Pennsylvania, occupies an in-between territory: preventive detention cannot be used to address public safety, but denial of bail is allowed if no bail amount would be sufficient to prevent the defendant’s flight.

►►Are the courts required to consider community safety when imposing bail? New York NO A bill passed by the NY legislature in June 2012 requires judges to consider — in domestic violence (DV) cases only — a violation of an order of protection and the prior use or possession of a weapon. However, community safety is not specifically authorized as a consideration even in these cases.

Other 49 States NO

3 (CT, MS, MO) in addition to NY

NOT EXACTLY 1 (KY) allows courts to consider defendant’s “likely behavior” YES, BUT YES

3 (AL, PA, WV) only in DV cases

42 (all other states)

►►May courts detain defendants for charges other than capital offenses? Other 49 States

New York NOT EXACTLY Bail or ROR must be ordered in misdemeanor or lesser severity cases, but in felony cases the courts may deny bail at their discretion (CPL §530.20.2). Since the courts are not authorized to consider danger to the community in making this decision, the only reason allowed for denying bail is that no amount of bail would ensure the defendant’s return to court. The legislative history of CPL §510.30, which specifies the criteria governing bail determinations, notes that the preventive detention provision was deliberately removed because it overburdened the courts. So, while NY does allow denial of bail in non-capital cases, it does not allow preventive detention (denial of bail for public safety reasons). This is similar to the law in Pennsylvania.

NO

→ 21 (AK & TN do not allow detention even

in capital cases; also AL, AR, CA, CT, DE, ID, IN, KS, KY, MN, MO, MT, *NJ, ND, SC, SD, WA, WV, WY)

NOT EXACTLY

→ 1 (PA) in addition to NY

YES, BUT 5 (IA, ME, NC, RI, TX) only in very restricted circumstances YES

→ 22 (AZ, CO, FL, GA, HI, IL, LA, MD, MA, MI, MS, NE, NV, NH, NM, OH, OK, OR, UT, VT, VA, WI)

*NJ voters are expected to approve an amendment to the state constitution in November 2012 that would authorize denial of bail to defendants who pose a danger to the community. NJ already requires the consideration of community safety in release decisions, but without preventive detention, the only way in which courts can address safety is to put conditions on release.

Source: Review of state statutes by the Pretrial Justice Institute (April 2010).

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CJA

Research Brief

Comparing New York City with Other Large Cities To compare release and bail in New York City with the rest of the country, we used national data published by the Bureau of Justice Statistics as part of its State Court Processing Statistics (SCPS) program (see blue box). The SCPS data were compared to New York City data for the same time period. Although the comparisons are restricted to felonies, it is likely that the dissimilarities between New York City and the rest of the country extend to nonfelony cases as well.

The State Court Processing Statistics (SCPS) Program The SCPS program of the Bureau of Justice Statistics collects and publishes data periodically on a sample of felony cases processed in state courts. The latest published SCPS report includes data collected from felony cases with a first court appearance on selected days in May 2006 in 39 of the 75 largest urban counties (40 counties were selected for sampling, but one was excluded because of incomplete data).

RELEASE AND DETENTION Figure 1 shows that release rates in felony cases are much higher in New York City than in Three of New York City’s five boroughs were the rest of the country: 77% were released prior included among the 39 SCPS counties sampled in to case disposition in New York City in 2006, com2006: the Bronx (Bronx County), Brooklyn (Kings pared to 58% nationwide. The proportion with a County), and Manhattan (New York County). The non-financial release in New York City was over specifications used to prepare the data files that double the proportion nationally: 56% with a nonwere sent to SCPS by CJA for the three sample financial release, compared to 25% nationwide. boroughs were reproduced to generate comparable New York City datasets, including all five The proportion of felony cases in which the boroughs of the City. A dataset of 2006 arrests defendant was detained to disposition was correwas prepared to match the dates included in the spondingly lower in New York City (23%) than on SCPS data, and another dataset of 2009 arrests average elsewhere (42%). A few defendants were was prepared to assess changes over time. In held without bail in both samples (4% in New York order to maintain comparability with SCPS data, City, 5% nationally). Detention resulting from the both New York City datasets were restricted to defendant’s inability to make bail was almost twice cases with a felony charge at arraignment. as likely to occur nationally (37%) as in New York City (19%). Figure 1 Release and Detention in New York City Compared to Other Large U.S. Cities Felony Defendants (May 2006 arrests) NEW YORK CITY

Released 77%

4%

56%

19%

NATIONWIDE Non-financial release Financial release Held on bail Denied bail

5% 25%

Detained 23%

Released 58%

37%

Detained 42%

33% 22% N = 1,569

N = 57,560 Detail may not sum to total because of rounding.

Research Brief #30

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CJA

Research Brief TYPE OF RELEASE

New York City: Release on recognizance (ROR) is by far the most common type of pretrial release in New York City. Among cases of defendants arrested and arraigned on a felony charge in May 2006, 72% of the defendants who were released were released on recognizance (Figure 2). The remainder of the releases were on bail (28%). The courts in New York City have many release options available to them, but few are used. All defendants in this sample were either released on recognizance without supervision, or had bail set. Nationwide: In sharp contrast to New York City, financial release predominated in the rest of the country. Over half (55%) of felony releases nationwide had financial conditions. The proportion of ROR release types in felony cases nationwide was less than half that in New York City: ROR comprised 28% of felony releases nationally, compared to 72% in New York City. Other forms of non-financial release, which were entirely absent in New York City, played an important role in the rest of the country. Conditional release (see inset box) accounted for 12% of felony releases nationwide, and unsecured bonds accounted for another 5%.

A dataset of 2009 arrests was examined to update the New York City data. ROR as a percentage of all felony releases had dropped by a few percentage points, with a corresponding rise of a few points in bail (not shown). However, ROR was still by far the most common form of pretrial release in felony cases. Conditional release: Release to the supervision of a pretrial services agency, or to a third party such as a drug treatment and monitoring program, is classified by SCPS as “conditional release.” In May 2006 no such pretrial release programs existed in New York City. A conditional release program has since been implemented in Queens under which defendants may be released to CJA’s supervision. However, only a fraction of 1% of all felony defendants in the city participate in Queens Supervised Release. (Strict program criteria include a nonviolent felony charge, likelihood that bail will be set, not a high risk of FTA, and the defendant’s agreement to participate.) This program will be expanded to Manhattan in the coming year, but even so, pretrial release under supervisory conditions will remain rare in New York City.

Figure 2 Type of Release in New York City Compared to Other Large U.S. Cities Felony Defendants Released Pre-Disposition (May 2006) NEW YORK CITY

NATIONWIDE ROR Conditional Unsecured Bond Financial

72%

28%

5% 12%

Non-financial 45%

55% 28%

N = 1,214

4

N = 33,279

September 2012


CJA

Research Brief

FORM AND AMOUNT OF BAIL Figure 3 Cash bail posted directly with the court was by Form of Bail in New York City far the most common form of bail making among Compared to Other Large U.S. Cities felony cases in New York City (76% of cases in Felony Defendants Released On Bail Pre-Disposition which bail was posted, Figure 3). Commercial bonds constituted about a quarter (24%) of felony bail postings. NEW YORK CITY NATIONWIDE (July–December 2005) (May 2006) Nationally, the picture was altogether different, with commercial bonds dominating (77%). Cash Commercial Bond Cash Bail Deposit Bond bail was rare outside New York City, comprising only 9% of bail postings. Deposit bonds — 14% of bail postings nationally — were more common 14% than cash bail. Deposit bond is a bond secured by 24% 9% a deposit of a sum of money, typically 10% of the 76% 77% bond amount. This type of financial release is authorized in New York City under the term “partially secured bail bond,” but it is rarely used (not at all in N = 4,552 N = 18,437 this sample). A 2005 sample with manually collected form of bail data was used for the New York City analysis.

Bail amounts in New York City were a fraction of amounts set on average elsewhere in the country (Figure 4). In cases of defendants who were released on bail, the average (mean) amount was $8,049 in New York City, compared to $17,100 nationally. In cases of defendants who were held on bail, the average was $16,759 in New York City, compared to $89,900 nationally. For all bail cases combined, the average amount was $12,071 in

New York City, compared to more than four times that amount nationally ($55,500). The medians (the amount above and below which are an equal number of cases) followed the same pattern. The greatest contrast between New York City and the rest of the country was among cases with a defendant held on bail: the median was $5,000 in New York City, compared to five times that amount ($25,000) nationwide.

Figure 4 Mean and Median Bail Amount in New York City Compared to Other Large U.S. Cities Felony Defendants With Bail Set (May 2006 Arrests) NEW YORK CITY Means Released on bail

Medians

$8,049

Held on bail

$16,759

$5,000

N = 290

$12,071

Combined bail

$3,000

N = 338

N = 628

$4,000

N = 18,614

$5,000

NATIONWIDE $17,100

Released on bail

$89,900

Held on bail

0

20000

Research Brief #30

40000

60000

$10,000

N = 39,484

$55,500

Combined bail

$25,000

N = 20,870

80000

100000

0

5000 10000 15000 20000 25000

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CJA

Research Brief

PRETRIAL MISCONDUCT We examined pretrial FTA and re-arrest rates On the other hand, pretrial re-arrest rates in the for felony cases in the counties with the highest New York counties were higher (28% to 33%) than (over 70%) and lowest (under 50%) release rates. the national average (18%). This was not the case The three New York counties — all with high for the other four high-release counties, however, release rates — had FTA rates of 19% to 20%, which had below average re-arrest rates (4% to near the national average of 18% (Figure 5). Oth- 15%). Furthermore, the highest re-arrest rate in the er high-release counties had similar or lower FTA nation (37%) was in Dallas, TX, which is among the rates. Moreover, three of the five low-release counties with the lowest release rates. counties had very high FTA rates (24%, 32%, and Together, these data show no consistent relation39%). These findings suggest that liberal release ship between the release rate in a jurisdiction and the policies are not associated with greater risk of FTA. likelihood of either type of pretrial misconduct. Figure 5 Pretrial FTA and Re-Arrest Rates Separately for SCPS Counties with the Highest and Lowest Release Rates Felony Defendants Released Pre-Disposition (May 2006 arrests) Counties With Highest Release Rates (over 70% released) 33% 28% 20%

20%

Counties With Lowest Release Rates (under 50% released) All Counties

FTA Re-Arrest

29% 19%

15%15%

18%

10% 4%

1%

New York City (77% released)

Manhattan (NY)

20%

18% 18%

11%

Brooklyn (NY)

37% 32%

24% 19% 6%

Bronx (NY)

39%

Hartford (CT)

Broward Baltimore St. Louis (FL) (MD) (MO)

(71% released)

(76% released)

(72% released)

(73% released)

6%

Los Ange- Orange les (CA) (CA) (31% released)

(32% released)

3% Ventura (CA)

(41% released)

Dallas (TX)

(45% released)

7%

11%

Harris (TX) (37% released)

CONCLUSIONS New York City relies less on financial conditions placed bail. Yet this form of release is available to and releases a higher proportion of felony defen- only a few in New York City. A third avenue is legislative. If New York were dants than any other jurisdiction in the country — without compromising court attendance. Despite to allow the courts to take public safety into account this, more than 50,000 defendants are detained an- in considering release, an empirically based recommendation system that predicts risk of re-arrest nually in New York City. The recommendations of the National Sympo- could be developed. With this information, the sium On Pretrial Justice, along with our review of courts could make better release decisions, posother states’ practices, suggest several avenues of sibly reducing re-arrest rates. reform that could reduce even further the City’s use If preventive detention were authorized as well, of pretrial detention. One avenue is increased use due process could be guaranteed before a defenof nonfinancial forms of release such as unsecured dant could be detained. The courts would then have bonds, which are already authorized in New York an option other than high bail to detain dangerous and are widely used elsewhere. criminals, who would no longer be able to buy their Another is the significant expansion of super- freedom. That in turn might encourage the courts vised release programs for defendants who other- to limit bail to an amount the defendant can make. wise would be detained on low bail. Nationally, 12% Such a policy would be in compliance with the ABA of felony releases involve supervisory conditions, and standard prohibiting such high bail that it results in in Washington, DC, such programs have virtually re- detention solely due to the inability to pay.

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September 2012


CJA

Research Brief

RECOMMENDATIONS OF THE NATIONAL SYMPOSIUM ON PRETRIAL JUSTICE May 31 – June 1, 2011 Washington, DC The Symposium culminated with the recommendations below regarding features that all pretrial justice systems should have in place. These features have also long been endorsed by the American Bar Association. A comment in italics on New York City’s compliance status follows each recommendation. •

Use of citation releases by law enforcement in lieu of custodial arests for nonviolent offenses when the individual’s identity is confirmed and no reasonable cause exists to suggest the individual may be a risk to the community or any other individual, or to be a risk to fail to appear in court. New York City is mostly in compliance. A Desk Appearance Ticket (DAT) is issued by the New York City Police Department rather than taking the defendant into custody in nonfelony (and some felony) arrests that meet certain criteria. However, many nonviolent offenses are excluded from eligibility for a DAT. •

Eliminating the use of automatic, predetermined money bail set with regard only to the arrest charge, and requiring all arrestees to be assessed for risk of re-arrest and flight, prior to any pretrial release. New York City is in compliance, except that risk of re-arrest is not part of the assessment. Risk of flight is assessed by CJA based on empirically validated criteria. Adding risk of re-arrest would require action by the New York State legislature. •

Screening of criminal cases by the prosecutor’s office before the initial appearance . . . New York City is in compliance. •

Presence of a defense counsel at the initial appearance who is prepared to make representations on the defendant’s behalf for the court’s pretrial release decision. New York City is in compliance. •

Presence of a judicial officer at the initial appearance who has received thorough training on pretrial release decision making, including on the laws that govern how the decisions are to be made and the research showing evidencebased decision making practices. Although a judge who is well versed in the law presides at the initial appearance, New York City is not fully in compliance with the recommendation for training. Training for new judges touches on the arraignment release decision and bail setting, but

Research Brief #30

judges appear to have little familiarity with the many forms of bail that they are authorized to set, or with research showing the effects of their decisions on length of detention or case outcomes. They may be unfamiliar with research identifying the best (and worst) predictors of failure to appear. They may also have very little idea how other judges would decide in similar cases. CJA found a large amount of variability in judicial release decisons for similarly situated defendants, which could be addressed through better judicial training. •

Existence of a pretrial services program or similar entity that: →Interviews all defendants who are in custody before the initial appearance; →Compiles the information that the court is required by law to take into consideration . . . ; →Assesses each defendant’s level of risk to be a danger to the community and to fail to appear in court using scientifically validated criteria; →Recommends to the court viable, least restrictive release options to address identified risks; and →Provides crime victims and others with mechanisms for reporting apparent violations of pretrial release conditions. New York City is partially in compliance. CJA fulfills the first three of these functions, except that the Agency does not have access to some of the information that the court is required by law to take into consideration; and the risk assessment is restricted to failure to appear. The last two functions presuppose a range of conditional release options that are not available in New York City. Compliance would require greatly expanding the availability of supervised released programs. •

Availability and use of detention without bail for defendants who pose unmanageable risks to public safety. New York is not in compliance. Adopting this recommendation would require action by the New York State legislature.

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Research Brief from

CJA

No. 30 (September 2012) New York City’s Bail System — A World Apart Forthcoming: No. 31 (January 2013) The EVE Project by Richard R. Peterson, Ph.D.

Most recently published in this series: No. 29 (May 2012) Evaluation Of Brooklyn’s Video Statement Program For DV Cases (Peterson) No. 28 (January 2012) Implementing Brooklyn’s Video Statement Program For DV Cases (Peterson) No. 27 (September 2011) How Release Type Affects Failure To Appear (Phillips) No. 26 (May 2011) Commercial Bail Bonds In New York City (Phillips) No. 25 (January 2011) Adolescent Male Domestic Violence Offenders (Peterson) No. 24 (September 2010) Predicting Post-Sentencing Re-Arrest (Siddiqi) No. 23 (May 2010) Making Bail In New York City (Phillips) No. 22 (January 2010) Young Male DV Offenders (Peterson) No. 21 (September 2009) Juvenile Offenders And Weapons (Gewirtz) No. 20 (May 2009) The CASES Day Custody Program (Solomon)

www.nycja.org/research/research.htm

Research Brief from

CJA

No. 30 (September 2012)

New York City’s Bail System — A World Apart The New York City Criminal Justice Agency, Inc. 52 Duane Street New York, NY 10007

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NYC Bail System 12