New York is in the midst of considering important criminal justice reforms – including bail, due process, and speedy trial – to reduce the overuse of jail.
We’re at a moment of growing consensus that incarceration should be a last resort, and not the default option, in our criminal justice system. Understanding the extent of the problem and exploring solutions is critical to enacting reforms that will succeed.
Who is in jail and why?
An arrest is the first step in any criminal case. But not every New Yorker who is arrested ends up in jail. What happens after an arrest depends on many factors, but one plays an outsized role: where in the state someone is arrested.
It’s not quite as simple as whether the arrest happens in Nassau County or Cattaraugus County. Even within a single county, an arrest for the same offense in an urban versus suburban or rural area could result in a different case outcome.
Compare the potentially different outcomes of the same misdemeanor arrest in Erie County—in Buffalo, the county seat, versus Hamburg, a village thirteen miles away.
Two-thirds of all arrests in New York are for misdemeanor charges—only one-third are for felonies. What happens with a low-level, misdemeanor case depends heavily on where the arrest occurs. In some parts of the state, people arrested for low-level offenses frequently have bail set or are convicted and sentenced to jail time.
In Clinton County, for example, nine out of 10 people in jail are there on misdemeanor charges.
In New York City, by contrast, only one out of 10 people in jail are there on misdemeanor charges even though misdemeanors make up two-thirds of all arrests in the city.
Across New York, the percentage of the total jail population held on misdemeanor charges varies by county, from as low as 6 percent in some counties to as high as 89 percent in others.
In towns and villages, especially in rural areas where the nearest court may be miles away, traveling to the courthouse for an arraignment is inconvenient when late at night or in bad weather. In those circumstances, arraignments are sometimes held at a justice's home, an in-between location, or even in a police car.
Despite the constitutional right...many New Yorkers arrested in suburban and rural areas do not have an attorney at arraignment.
Courts in some counties set bail relatively infrequently, especially on low-level charges. The vast majority of cases that come through New York City courts are either resolved with a disposition at arraignment or, if the case continues past the first court appearance, released on recognizance or released under supervision. In other counties, however, such as Chautauqua, a very high number of people are held pretrial in jail compared to overall arrests.
New York City has a population of 8.5 million, compared to slightly over 130,000 in Chautauqua County.
On any given day in New York City, approximately 7,500 people are held pretrial out of the more than 250,000 arrests made annually.
In Chautauqua County, in contrast, close to 200 people are held in jail pretrial on any given day, despite the fewer than 3,500 arrests in the county annually.
Overall, across New York, people held pretrial make up 67 percent of the average daily population in jail. That number is 77 percent in New York City, but is 50 percent or below in some parts of the state.
There is tremendous variation across New York in both how often bail is set and in what amounts. There are nine forms of bail available to the courts, although in practice only cash bail and insurance company bail bonds are typically used. Many counties also offer pretrial services programs as an alternative to bail.
In most counties, pretrial services are offered that provide an alternative to bail. Often called “release under supervision,” “pretrial release,” or “supervised release,” these programs are available primarily in city courts to offer judges a middle option between release on recognizance and setting bail. Many larger courts, such as in the city of Rochester, in Monroe County, or in New York City, have robust pretrial services programs operated by nonprofit organizations. In many smaller and more rural counties, the local probation department may run a pretrial services program called “release under supervision,” or RUS. In 26 counties and New York City, RUS programs are available in arraignments, so that judges can assign someone to pretrial supervision without having to set bail. In 24 other counties, the probation department conducts assessment interviews of potential participants only in the jail after bail has been set, and waits until the first court date after arraignment to accept someone into the program. Seven counties currently have no pretrial services available.
Seven in 10 people held on misdemeanors in Monroe County have bail set at $1,000 or less, compared to one in 10 in Chautauqua County.
That variation in bail holds for more serious offenses. In Monroe County, four in 10 people held on felony charges have bail set at $10,000 or higher, compared to eight in 10 in Chautauqua County.
Source: Vera Institute of Justice analysis of bail amounts reported in a one-day snapshot by the local departments of correction in New York City, and Monroe, Chautauqua, and Onondaga Counties.
In town and village courts, and even in some city courts, police officers contact an on-call assistant district attorney after an arrest to determine the prosecutor's bail request. The police officer conveys that request to the judge or justice presiding over arraignment. The conversation between a police officer and the court at arraignment can have a significant impact on the bail decision in a case.
The right to a speedy trial is another principle enshrined in the Constitution, but in New York the speedy trial law is really a rule of “readiness for trial.” Under the law, misdemeanors are required to be resolved within 90 days and felonies within 180 days. Yet many cases pend in court for much longer. Under the law, any time prosecutors state they are “ready” for trial, the speedy trial clock stops and the time in between the statement of readiness and the next court appearance is excluded from the speedy trial calculation.
The average length of stay in jail is 13 days in Herkimer County and 61 days in Westchester County. Many of the bigger courts across the state, in New York City, and in Nassau, Suffolk, and Westchester Counties, experience the biggest delays because of court congestion.
For people held in jail pretrial, speedy trial practices impact their length of stay. In some larger jurisdictions, adjournments of four to six weeks between court dates contribute to long lengths of stay in jail. In some rural counties, long lengths of stay may be the result of infrequent court calendars, where court is in session only once or twice a month.
More than three-quarters of felonies result in convictions in Schenectady versus 53 percent in the Bronx.
Almost one in five felony cases results in a prison sentence in Schenectady, while less than one in 10 do in the Bronx.
Some counties send many more people to prison on felony sentences than others.
Exploring metrics of criminal justice
The drivers of jail vary across the 62 counties of New York State. Use the data clearinghouse to look at what is driving your local county’s criminal justice trends. It includes data from the New York State Division of Criminal Justice Services, the Bureau of Justice Statistics’ Annual Census of Jails, and other sources. Take a deep dive into your county, compare counties side-by-side, and to the state as a whole.
Correcting the overuse of jail
The drivers of jail are the result of local-level policies and practices decided on by elected officials, police and sheriffs, judges, prosecutors, defense attorneys and, importantly, the public. Some of these decisions have resulted in the growth of jail in some parts of the state, while others have deliberately reduced the number of people in jail.
Because bail decisions impact the outcome of a case, arraignments must be conducted by judges trained in the law and those accused must have the benefit of a lawyer.
...much more can be done to ensure that someone’s wealth doesn’t determine pretrial liberty...
Incarceration should be used as a last resort, and not the default option.
There are places across New York State that have resisted the trend of jail growth or have dramatically reduced the number of people in jail.
In there are people in jail.
If it had the same incarceration rate as , there would be people in jail.
