Decarcerating America Page 7

  The Sentenced Population

  In addition to the decline in felony arrests (and particularly felony drug arrests) described above, there has been a dramatic change in dispositions—the final decisions that the court makes in criminal cases, including sentencing—of people arrested for felonies and misdemeanors in New York during this time period.

  According to the New York State Division of Criminal Justice Services, prison sentences (of a year or more) declined sharply as a portion of all felony case dispositions, while shorter sentences to jail (i.e., for less than one year) rose slightly as a percentage of case dispositions. Overall, these substantial reductions in prison commitments (and small increases in the percentage of cases sent to jail) made a large contribution to reducing the city’s combined incarceration rate, since people committed to jail have shorter lengths of stay than those committed to prison.29

  Furthermore, even though jail sentences rose as a percentage of all felony cases disposed of, the overall number of jail sentences declined by 4,738 due to the 33 percent decline in felony cases handled by New York City courts between 1996 and 2014. In other words, the decline in felony arrests accounted for all of the decline in jail commitments for felony arrests, and then some.

  A different trend appears with the misdemeanor arrests and dispositions, although the misdemeanor trend also nets out to substantially fewer jail commitments. Misdemeanor arrests rose from 181,817 in 1996 to a peak of 237,818 in 2011 before falling to 215,352 in 2014, a net increase of 18 percent or 33,535 misdemeanor arrests.

  However, jail as a disposition for misdemeanor arrests declined during this period. In 1996, 25 percent of all misdemeanor cases were sentenced to jail, compared to only 20 percent in 2014. In total, despite the fact that there were 33,535 more misdemeanor arrests in 2014 than in 1996, 1,954 fewer cases in New York City ended in a jail sentence in 2014 than in 1996.

  As with state prison sentences, incarceration of people for drug offenses led the way in reducing the jail population in New York City. From 1996 to 2016, the number of people incarcerated in New York City’s jails for drug offenses declined by 73 percent, which made up more than half (52 percent) of the entire jail population decline during that time period.

  Formal probation supervision can be another route to incarceration for some individuals insofar as failure to abide by conditions of probation can result in jail or, less frequently, prison terms. From 1996 to 2014 in New York City, probation sentences and the number of people on probation declined considerably, early discharges from probation increased, face-to-face supervision decreased, and probation violations were substantially reduced.

  In 1996, 7 percent of felony cases and 0.7 percent of misdemeanor cases were sentenced to probation; in 2014, those rates were 4 percent and 0.3 percent, respectively. All told, the number of people sentenced to probation declined by two-thirds from 1996 to 2014, from 16,285 to 5,313. An analysis by the State Division of Criminal Justice Services for this chapter found that the number of people on probation in New York City declined by 33 percent between 1996 and 2015, compared to a 20 percent decline in the rest of the state.

  In addition to these court-driven changes, the New York City Probation Department itself reduced the onerous nature of probation and probation violations. In 1996, the probation department reduced face-to-face supervision by initiating monthly reporting to an electronic kiosk rather than more frequent face-to-face supervision for low-risk and otherwise deserving people on probation. Further, early discharges from probation increased nearly six-fold between 2007 and 2012.30 A state analysis showed that only 3 percent of those discharged early from probation in 2011 were reconvicted of a felony within a year of discharge.

  The Probation Department’s use of violations declined significantly. Just between 2009 and 2013, probation violations declined by 45 percent.31 By 2013, only 3 percent of people on probation in New York City experienced probation violations, compared to 11 percent in the rest of New York State.32

  Overall, in 2014, the number of felony and misdemeanor cases resulting in conditional (including a requirement such as community service) and unconditional discharges and fines exceeded the number sentenced to probation, jail, and prison combined. As New York was becoming a safer city, its courts were dismissing many more cases, and relying less frequently on prison, jail, and probation and more heavily on fines and conditional and unconditional discharges.

  Declines in Crime and Incarceration in the Nation’s Largest City

  From the mid-1990s to the present day, New York City experienced a well-publicized decline in crime that Franklin Zimring has described as the “Guinness Book of World Records crime drop,” exclaiming that the decline in crime in New York was “so dramatic we need a new way of keeping score.”33

  Less well publicized has been the city’s dramatic and simultaneous decline in incarceration. New York City’s dramatic combined reduction in incarceration and crime has left it as one of the safest and least-incarcerated cities in the United States. And while the city’s incarceration rate fell by 48 percent from 1991 to 2014, the violent crime rate fell by 73 percent.

  Based on data like these, it would be hard to argue that either New York City’s reduction in reliance on prison or jail sentences or its low combined incarceration rate is jeopardizing the public safety of the city’s residents. On the contrary, while New York’s incarceration rate fell by 55 percent between 1996 and 2014, its violent crime rate fell by 54 percent—this at a time when incarceration in the rest of the country and New York State continued to rise.

  In terms of sheer numbers, the contrast between New York City and the rest of the nation is even more dramatic. From 1991 to 2014, the city held 46 percent fewer people in jail and prison, while the rest of the nation increased the number of people behind bars by 34 percent. And although national data are not yet available for comparison, the combined prison and jail population decline for New York City reached 50 percent at the end of April 2016, down from its highest level at the end of 1998 (Figure 2.7).

  What Does It All Mean?

  Inspired by the refrain from “New York, New York,” “If I can make it there, I’ll make it anywhere,” we believe that a number of lessons can be drawn from the New York experience.

  Lesson 1: Whereas calls to reduce America’s incarceration rate by 50 percent may seem outlandish to some, our findings support the notion that a 50 percent reduction in incarceration is not an unrealistic goal, at least for large American cities (and advocates can help to get us there). New York City’s experience also points out that advocacy-driven decarceration efforts are more likely to seek and win audacious goals—like a 50 percent reduction in incarceration—than are technocratically driven approaches.

  Lesson 2: Less can be more when it comes to incarceration and supervision. During this period of sharply declining crime and incarceration in New York City, New York’s judges, prosecutors, and probation officials made less use of prison, jail, and probation while increasing their use of pretrial release, dismissals, adjournments in contemplation of dismissal, conditional and unconditional discharges, and fines—all sanctions whose connection with incarceration is attenuated. Not only are 2.2 million people in prison and jail in America, but 4.7 million people—one in fifty-four adults—are on probation or parole. About one-third of prison admissions are a result of parole violations,34 and in 2004, 330,000 people had their probation revoked for non-compliance.35

  Figure 2.7: People in State Prisons and Local Jails Comparing New York City with the Rest of the United States 1991–2014

  Source: Bureau of Justice Statistics

  Research has found that supervising people who present a low risk of reoffending not only wastes resources but also can increase the likelihood of rearrest, as informal forms of social attachment and control are replaced by less effective government controls and supervision.36 New York policy makers may have discovered that a justice system that reduces incarceration and supervision in favor of info
rmal, less intrusive dispositions and community-based programs addresses public safety in a less dehumanizing and more effective manner.

  Lesson 3: Programs may be having an impact, but they need to be evaluated. New York City has a wide array of alternatives to incarceration, funded by federal, state, local, and philanthropic dollars. Indeed, in 2015, the state and city budgets for New York City’s array of alternatives to incarceration amounted to $12 million and $11 million, respectively. The city also spent an additional $18 million to fund the Criminal Justice Agency.

  Lesson 4: As we reduce overall incarceration, much still needs to be done to impact the system’s stark racial disparities. While Latinos declined as a portion of the DOCCS population from 31 percent in 2000 to 24 percent in 2016 and experienced smaller declines in their proportion of the city’s jails, the disproportionality of African Americans stayed frozen in place throughout this unprecedented decline in incarceration in the city. African Americans, who make up 23 percent of New York City’s population, made up 51 percent of the DOCCS population in 2000 and 49 percent of the DOCCS population in 2016. Likewise, between 1992 and 2016, the percentage of those incarcerated in New York City jails who were African American barely moved, declining from 56 percent to 54 percent. Much more needs to be done to address these stark disparities, in New York and nationwide, as we continue to grapple with mass incarceration.

  Conclusion

  New York’s unprecedented reduction in reliance on incarceration has been a bottom-up, advocacy-driven, community-focused strategy, as opposed to a top-down, technocratic, elite-consensus approach. In New York, public officials and policy makers have been relentlessly pressured by vigorous demands from advocates, organizers, and activists, who have also worked tirelessly to educate the public about the need for a more humane and effective criminal justice system. And some of those same advocates traveled in and out of the corridors of power, influencing the city’s system to make more parsimonious use of incarceration, which as a result became the policy goal of a succession of city and state governments.

  The experiences in California and New Jersey, which embraced many of the same objectives as New York, suggest that a determined drug policy reform campaign is just one effective arrow in the decarceration quiver. These states demonstrated that the strategic use of litigation to spur a long-overdue devolution of correctional responsibilities and costs to local authorities, or just to wake up a slumbering parole board, can be highly effective. In states where ballot measures and referenda are available, they can be employed to make end runs around obstinate elected officials, provided they are accompanied by the sophisticated, adequately funded political campaigns that have succeeded in California.

  New York City, New Jersey, and California have made impressive progress toward reversing mass incarceration. These three states have come to lead the nation in reducing reliance on incarceration, but each state has accomplished this distinction using different decarceration strategies over different time frames. What they all have in common is that they won large reductions that corresponded with better-than-average declines in crime, proving that the level of public safety actually being provided by mass incarceration may indeed be, as the National Research Council has concluded, “highly uncertain.”37

  As states and localities look to downsize incarceration, they may also need to bolster their community-based services, supports, and opportunities to successfully absorb people returning to communities from jail and prison, as well as to increase confidence among court officials and other system stakeholders that locking them up in the first place may be avoided. Doing so in areas of concentrated poverty, which tend to be African American and Latino neighborhoods in urban areas that disproportionately contribute residents to state prisons and local jails, may also help reduce the racial and ethnic disparities that continue to plague our criminal justice system.

  We hope that people in states where there is still plenty of low-hanging fruit (e.g., people sentenced to jail or prison for low-level drug and property crimes, or violation of the requirements of community supervision) will find encouragement in these three states’ accomplishments to move more boldly along this trajectory. Our view is that, judging from what has been accomplished so far in the leading states, the necessary elements for success have been bold reform agendas, organizational moxie, and powerful public engagement.

  But enormous challenges remain, and we look to the three leading states to tackle yet more ambitious agendas. Our prisons have become mental health institutions by default. Sentences for people convicted of violent offenses are grossly excessive, compared to such sentences in our nation’s history and in other well-developed democracies. Our zeal for mandatory sentencing enhancements, “truth in sentencing,” and “three strikes” sloganeering must give way to permit greater judicial discretion in dealing with defendants as individuals. And we must foster a realization among the public that if the goal is public safety, long prison terms are far more costly and generally less effective than treatment interventions.

  These problems will not lend themselves easily to technocratic top-down solutions. They will take years of bottom-up advocacy, organizing, and public engagement to effect systemic change and promote more effective and humane solutions. But we are confident that the states already in the lead will continue to struggle with these challenges.

  Notes

  1. The authors would like to thank the following people for providing insights and data for this article: David Aziz, director of research at the New York State Department of Corrections and Community Supervision; Reagan Daly, associate research director at the Institute for State and Local Governance at the City University of New York; Brian Leung, juvenile justice planner at the New York City Mayor’s Office of Criminal Justice; Freda Solomon, senior research fellow at the New York Criminal Justice Agency; and Eric Sorenson, director of population research at the New York City Department of Correction.

  2. Pervaiz Shallwant & Mark Morales, NYC Officials Tout New Low in Crime, but Homicide, Rape, Robbery Rose, WALL ST. J., Jan. 4, 2016.

  3. Franklin Zimring, How New York Beat Crime, SCIENTIFIC AMERICAN, Aug. 1, 2011.

  4. Both crime and incarceration have continued to decline in New York City to the present day, but 2014 is the most recent time period for which national comparisons are possible. The FBI Uniform Crime Reports index crimes in two categories: violent crimes (aggravated assault, forcible rape, murder, and robbery) and property crimes (arson, burglary, larceny-theft, and motor vehicle theft).

  5. ALLEN J. BECK, U.S. DEP’T OF JUSTICE, PRISONERS IN 1999 (2000), available at http://www.bjs.gov/index.cfm?ty=pbdetail&iid=928.

  6. Lynn Zimmer, Proactive Policing Against Street-Level Drug Trafficking, 9 AM. J. POLICE 43 (1990), available at http://www.popcenter.org/responses/police_crackdowns/pdfs/zimmer_1990.pdf.

  7. STATE OF NEW YORK, DIVISION OF CRIMINAL JUSTICE SERVICES, NEW YORK STATE FELONY DRUG ARREST, INDICTMENT, AND CONVICTION TRENDS 1973–2008 (2010), available at www.criminaljustice.ny.gov/pio/annualreport/baseline_trends_report.pdf.

  8. Mary Beth Pfeiffer, Parole Denials Negate Crime Drop, POUGHKEEPSIE J., Nov. 16, 2000.

  9. FRANKLIN E. ZIMRING, THE CITY THAT BECAME SAFE: NEW YORK’S LESSONS FOR URBAN CRIME AND ITS CONTROL (2011).

  10. Holly Catina, Politics of Drug Reform, N.Y. TIMES, May 26, 1999.

  11. ZIMRING, supra note 9.

  12. Id. at page 116.

  13. Id. at page 116.

  14. Judith A. Greene, Zero Tolerance: A Case Study of Police Policies and Practices in New York City, 45 CRIME & DELINQ. 171 (1999).

  15. Queens College professor Harry Levine has compiled marijuana arrest data since 1997. His analysis is available at http://qcpages.qc.cuny.edu/~hlevine.

  16. NATIONAL CENTER ON ADDICTION AND SUBSTANCE ABUSE AT COLUMBIA UNIVERSITY, CROSSING THE BRIDGE: AN EVALUATION OF THE DRUG TREATMENT ALTERNATIVE-TO-PRISON (DTAP) PROGRAM (2003), available at http://www.centeronaddiction.org/addiction-res
earch/reports/crossing-bridge-evaluation-drug-treatment-alternative-prison-dtap-program.

  17. STATE OF NEW YORK, DEP’T OF CORRECTIONS & COMMUNITY SUPERVISION, SHOCK INCARCERATION 2007 LEGISLATIVE REPORT (2007), available at http://www.doccs.ny.gov/Research/Reports/2007/Shock_2007.pdf; STATE OF NEW YORK, DEP’T OF CORRECTIONS & COMMUNITY SUPERVISION, IMPACT OF 2009 DRUG LAW REFORM (2010), available at http://www.doccs.ny.gov/Research/Reports/2010/DrugLawReformShock.pdf.

  18. STATE OF NEW YORK, DEP’T OF CORRECTIONS & COMMUNITY SUPERVISION, EARNED ELIGIBILITY PROGRAM SUMMARY SEMIANNUAL REPORT: OCTOBER, 2015–MARCH 2016 (2016), available at http://www.doccs.ny.gov/Research/Reports/2016/EEP_Report_Oct15-Mar16.pdf

  19. STATE OF NEW YORK, DEP’T OF CORRECTIONS & COMMUNITY SUPERVISION, MERIT TIME PROGRAM SUMMARY, OCTOBER 1997–DECEMBER 2006 (2007).

  20. H.R. 3355, 103rd Cong. (1993–94), http://thomas.loc.gov/cgi-bin/query/z?c103:H.R.3355.ENR.

  21. State of New York, Dep’t of Corrections & Community Supervision, Fact Sheet: 2009 Prison Closures, http://www.doccs.ny.gov/FactSheets/PrisonClosure09.html.

  22. State of New York, Dep’t of Corrections & Community Supervision, Press Release: Department of Corrections Details the State’s Plan to Right-Size the New York’s Prison System, Feb. 5, 2014, http://www.doccs.ny.gov/PressRel/2014/Budget_Testimony_2014-15.html.

  23. Neil Barsky, Shut Down Rikers Island, N.Y. TIMES, July 17, 2015.

  24. This is the time for which length-of-stay data is available.

  25. These population totals include, in addition to felonies and misdemeanors, a variety of other categories (people jailed for violations or held on bench warrants, etc.). Length-of-stay data for each category were not available.