Decarcerating America Page 6
New York City Wins the War
Criminologist Franklin Zimring notes that the number of officers assigned to special narcotics units grew from 1,183 in 1990 to 2,800 in 1999.11 Yet by 2006, the narcotics force had shrunk back to 1,180. Zimring speculates that the city had simply won the drug war on its own terms, achieving the two major strategic objectives that animated the narcotic unit’s expansion: driving drug markets off the streets and reducing drug-traffic-related violence.12
While drug-related hospitalizations and drug overdose death trends remained relatively flat during this period (indicating stable prevalence of drug-using populations), police efforts were focused on affecting the nature of the city’s drug markets. The almost 60 percent drop in narcotics unit strength is strong circumstantial evidence that the reductions in open-air markets and lethal violence in drug traffic were signs of success in the department’s chief priorities.13
Misdemeanor Drug Arrests
In 1994, New York City police commissioner Bill Bratton introduced his trademark “broken windows” policing. He ended a long-standing NYPD policy that discouraged patrol officers from arresting people for petty drug offenses, and instead he encouraged them to be aggressive with people they saw committing “quality-of-life” crimes.14 Accordingly, misdemeanor drug arrests rose sharply from 1994 to 1996. After Commissioner Bratton retired, the sharp rise in low level arrests continued throughout the regime of his successor, Commissioner Howard Safir, peaking at 102,712 misdemeanor drug arrests in New York in the year 2000.
With a new commissioner, Bernard Kerik, misdemeanor drug arrests began a sharp decline that seemed to be an echo of the felony drug arrest decline. But in 2005 under Commissioner Ray Kelly, these arrests began to rise again to a new peak of 84,250 in 2011. By then drug reform advocates were loudly denouncing the tens of thousands of marijuana arrests that accounted for more than 40 percent of the misdemeanor drug arrests associated with the growth of “stop-and-frisk” policing practices, reaching 700,000 in its peak year.15 The Drug Policy Alliance, in collaboration with the Marijuana Arrest Research Project, the Center for NuLeadership on Urban Solutions, and VOCAL-NY organized a campaign to stop these arrests at both the local and state levels. Commissioner Kelly responded by issuing a series of memos clarifying and liberalizing NYPD’s arrest policies for marijuana, and Mayor Michael Bloomberg called for the issuance of desk appearance tickets in lieu of arrests for marijuana possession.
During the 2013 mayoral election campaign there was general agreement by the candidates to reduce marijuana arrests. From 2011 to 2015, the number of misdemeanor drug arrests plummeted by 50 percent, back to the level before Commissioner Bratton originally told the patrol troops to crack down on petty street crime.
Prosecution and Sentencing in Drug Cases
Reflecting the change in public sentiment about the issue of drugs, sentencing practices had already begun to shift across the state before the NYPD moved away from intensified drug enforcement in the early 2010s. As far back as 1990, the newly elected Kings County (Brooklyn) district attorney Charles J. Hynes decided that for many repeat felony drug offenders, their families and their communities would benefit more from treatment alternatives than from mandatory prison terms. Hynes struck a historic blow against the Second Felony Offender Law, agreeing to divert people with one or more prior felony convictions to treatment programs. Within a few years, district attorneys across the state were replicating Hynes’s Drug Treatment Alternative-to-Prison (DTAP) program.
An evaluation by Columbia University’s Center on Addiction and Substance Abuse found that the treatment alternative effectively diverted individuals from incarceration and reduced relapse and reoffense, even for those with significant criminal histories.16 Participants were found to be 36 percent less likely to be reconvicted and 67 percent less likely to return to prison after two years than a matched comparison group.
The treatment program joined an already robust network of alternative-to-incarceration programs. The city’s investments in these programs had been growing since the 1960s, when the Vera Institute of Justice first developed pretrial release and diversion programs that became national models, encouraging judges to send people to treatment, educational, or vocational programs instead of jail.
In the mid-1980s, New York State legislators were allocating hundreds of millions in tax dollars to expand the state’s prison system, but they also began to provide substantial funding for an array of new programs designed to target defendants thought to be jail-or prison-bound with advocacy and program interventions intended to reduce the courts’ reliance on incarceration. Although programs were not restricted to diverting drug cases alone, the proportion of felony drug cases that resulted in a prison sentence fell from 21 percent in 1997 to an all-time low of 11 percent in 2007.
Correctional Tools for Prison Population Management
At the state level, policy makers were working on a “right-sizing” approach to managing the prison population. They set a number of policies and programs in place to gain more control of population levels as well as to encourage those in their custody to maintain good behavior and engage in constructive activities while serving time. These included:
•Shock incarceration, where participants earned their GEDs. After release to parole, drug tests indicated an abstinence rate of 92 percent among Shock parolees.17 By December 2015, 68,764 people had participated in Shock, which began at the Monterey Shock Incarceration Facility in Schuyler Country, and 73 percent of those succeeded in receiving early parole. Correctional officials estimated that their early releases had saved taxpayers $1.5 billion.
•Earned parole eligibility, introduced in 1992 to provide people who are parole-eligible and who meet certain criteria with an “earned eligibility certificate” that enhances their chances for release at their first parole hearing. Most people who can be considered for a certificate receive one. But since 1995, when New York began to embrace truth-in-sentencing, the number of parole-eligible people in prison has declined, and many who remain parole-eligible are people sent to prison years ago with very long terms to serve. From October 2015 through March 2016, of the 3,941 people facing their initial parole hearing, 2,225 (57 percent) had been certified for early release. Of those certified, just 850 (38 percent) were granted parole. Of those denied a certificate, only 7 percent were granted parole.18
•The Merit Time Program, established in October 1997, allows people who are serving a prison term for a nonviolent, non-sex-related offense to earn a reduction of one-sixth off their minimum term, which qualifies them for early parole consideration. The reduction depends upon achievement of specific program goals—obtaining a GED or a vocational training certificate, completing an alcohol or drug abuse program, or performing four hundred hours of service on a community work crew—provided there have been no serious disciplinary infractions. Between the inception of the Merit Time Program and December 2006 (the latest year that program statistics were made available), 37,914 people had earned a merit time hearing at the parole board, of whom 64 percent were released prior to their designated parole eligibility date. On average, those granted merit time shaved about six months off their minimum sentence. A recidivism study found that the return-to-prison rate for Merit Time Program release was 31 percent, compared to 39 percent for all other releases. By 2006, Department of Corrections and Community Supervision (DOCCS) managers attributed $384 million in savings to the Merit Time Program.19
•Parole release. Until 1995, New York’s penal code required that state prison sentences be “indeterminate,” with judges sentencing people to a minimum typically set at one-third of the maximum. The parole board would review each case, with an initial hearing to be set in accordance with first eligibility at the minimum date. Good behavior could earn one-third off the maximum date. For example, someone sentenced to three to nine years could count on being released after serving six years at the most, unless he or she failed to earn “good time” credits. The federal
Violent Crime Control and Law Enforcement Act of 1994 allocated $9.7 billion in prison expansion funding for states that gave assurances that new correctional policies (including truth-in-sentencing laws) would be implemented to provide “sufficiently severe punishment for violent offenders.”20 As a result, from 1995 forward, the number of people sentenced to indeterminate prison terms and therefore eligible for parole release steadily decreased. By 2008, the number of conditional releases (after the sentence was fully served) exceeded the number of parole releases for the first time, and by 2013, only 34 percent of releases resulted from parole board decisions.
Drug Policy Reform by Legislative Action
As described above, decades of intensifying advocacy by proponents of drug policy reform and alternatives to incarceration began to outweigh the harsh rhetoric of drug “hawks” and the “tough-on-crime” movement during the late 1990s, resulting in an unprecedented reduction in New York’s state prison population. Most of that advocacy arose out of New York City, and not surprisingly, the entire decline in the state’s prison population was the result of the decline in imprisoned people from New York City. Yet an entire decade would pass before legislators caught up with public sentiment and substantially revised the Rockefeller drug laws.
In the fall of 2008, key members of the New York State Assembly convened unprecedented joint hearings involving the combined leadership of six legislative committees for day-long sessions in both New York City and Rochester. National experts, public health practitioners, and local reform advocates alike voiced the need to establish a public-health-based approach to the problem of drugs. In January 2009, more than three hundred people—health professionals, law enforcement veterans, elected officials, reform advocates, drug treatment specialists, and active drug users—gathered in New York City for a conference convened jointly by the Drug Policy Alliance and the New York Academy of Medicine to spur reform.
The Speaker of the Assembly responded with a pledge that 2009 would be the year that reform of the Rockefeller drug laws would be won. On April 7, 2009, New York’s governor, David Paterson, signed Article 216 of the Criminal Procedure Law.
Key elements of the reform included:
•Judicial discretion to place people convicted of drug offenses into treatment and to offer second chances when appropriate.
•Diversion from incarceration for people who commit crimes other than drug offenses because of issues stemming from substance dependence.
•Diversion eligibility for people convicted of second felony offenses.
•Opportunities to try community-based treatment without the threat of a longer sentence for failure.
•Plea deferral options, especially for noncitizen green card holders who would become deportable if they take a plea to any drug felony conviction, even if it is later withdrawn.
•Opportunities for resentencing for more than nine hundred people who were still in prison under the longer pre-2004 indeterminate terms.
•Record-sealing provisions that protect people who finish their sentences from employment discrimination based on the past offense.
•The option for a judge to dismiss a case in the interests of justice when the accused has successfully completed a treatment program.
The Impact of Drug Reform on the State Prison Population
The proportion of people admitted to serve a felony drug sentence among all new admissions in New York State prisons has been declining since 2000. While the passage of reforms was clearly a major victory for advocates in the battle against harsh drug war policies, little difference in the curve in commitments to New York State prison for drug offenses can be discerned pre-and post-passage of those reforms (Figure 2.4), perhaps because public opinion about the ineffectiveness of the laws had been shifting for decades, and judicial and prosecutorial practices had already changed accordingly.
Average sentences for people convicted of a drug felony also fell between 2000 and 2013, from twenty-seven months to nineteen months, along with a drop in the percentage of people within the overall prison population serving time for a drug conviction. All told, in 1996 24,000 people were serving a felony drug sentences in New York’s state prisons. At the end of 2014 there were fewer than 6,700—a breathtaking 72 percent decline.
Figure 2.4: Percentage of Drug Admissions Among All New Admissions to New York Prisons 2000–2013
Source: New York State Department of Corrections and Community Supervision
Figure 2.5: Percentage of People with Drug Convictions in New York State Prisons 1996–2014
Source: New York State Department of Corrections and Community Supervision
The cumulative effect of refocusing NYPD drug enforcement priorities, the shifting drug sentencing trends in the city courts, the use of incentivized release programs by the DOCCS, plus several legislative reforms—including the long-fought-for 2009 Rockefeller drug law reform—had a substantial impact on New York State’s prison population. Between 2000 and 2014, with 15,601 fewer people serving time on drug convictions, the overall prison population fell by 17,289. With thousands of empty prison beds, New York’s correctional managers have been able to greatly reduce their prison capacity, saving money and making the prisons safer for both correctional staff and the people they guard.
During the Pataki administration, the Department of Corrections deactivated 2,700 dormitory beds. After the sweeping changes to the Rockefeller drug laws enacted in April 2009, three small minimum-security prisons were closed and annexes were shuttered at six prisons that otherwise remained in operation. The DOCCS estimate was that some $52 million was saved over the next two years.21 By 2014, DOCCS managers had closed a total of thirteen prison facilities, and $24 million in economic development money had been allocated to assist local communities affected by prison closures.22
New York City’s Use of Jail
As with the New York State prison population, the decline in New York City’s jail population has been dramatic and driven by the shift in NYPD priorities along with substantial changes in courtroom decisions to eschew jail and local probation—which can often act as a feeder system to jail. The degree of decarceration within the city system has sparked serious discussions among policy makers and advocates about closing the notorious jail facilities on Rikers Island and relocating people incarcerated in New York City’s jails to smaller, borough-based facilities—an idea with substantial media and public support that became a mayoral pledge in 2017, as the incumbent mayor, Bill De Blasio, sought reelection.23
The population of the New York City Department of Correction at Rikers Island has declined from a historic high of 21,688 in 1991 to 9,762 at the end of April 2016, a remarkable 55 percent decline. Jail population levels are determined by two factors: the number of people who enter the jail, and the amount of time they are confined until released. Since 1998, the average length of stay for people convicted of either felonies or misdemeanors has increased only a bit,24 but the large decrease in admissions for both offense categories has resulted in a much lower jail population, nonetheless (Figure 2.6).25
Pretrial Release in New York City
Since the overwhelming majority of those in jail under the custody of the New York City Department of Correction are detained pretrial (87 percent as of May 26, 2016), what happens with the pretrial population has an important impact on New York City’s jail population. New York City detains fewer of those arrested than most other large urban jurisdictions, and over the past decade or so, releases of defendants at arraignment have increased.
Figure 2.6: Felony Admissions and Average Days to Release 1998–2015
Source: New York City Department of Correction
Founded in 1973 as the Vera Institute’s Manhattan Bail Project, New York City’s Criminal Justice Agency (CJA) became the nation’s pioneer in the use of a risk assessment instrument to advise courts on the likelihood that a defendant would return to court for the next court date if released on recognizance in lieu of bail at the hearing.
Recent research on pretrial release shows that defendants in New York City were more likely to be released prior to case disposition (74 percent) than defendants in the seventy-five other largest urban areas nationally (58 percent). Nonfinancial release in New York City also made up a larger portion of releases (50 percent) than was the case for the other large urban areas (25 percent).26
From 2004 to 2014, the percentage of people released on their own recognizance increased.27 For those individuals recommended for release on their own recognizance by the Criminal Justice Agency, 83 percent were released in 2014, compared to 78 percent in 2004, and for people evaluated as medium risk, 72 percent were released in 2004, compared to 79 percent in 2014. But arraignment judges appear to have become more liberal in general over this period, since 50 percent of those for whom CJA did not recommend release were released on recognizance anyway in 2014, compared to only 38 percent in this category who were released in 2014.28
A substantial majority of individuals in all recommendation categories made their court appearances as required, although higher appearance rates were associated with positive recommendations. In 2014, 7 percent of defendants in both felony and non-felony cases who were recommended for release failed to appear, as did 11 percent of those evaluated as moderate risk. By comparison, 22 percent of non-felony defendants who were not recommended for release failed to appear. In addition to near-universal screening of defendants for release on their own recognizance, in 2014 CJA operated bail-expediting programs in the four largest New York City boroughs—programs that assisted defendants for whom bail was set to contact relatives and friends for help in posting bail.