By Beth Fertig, WNYC
December 11, 2019
Earl freely admits he’s had trouble with the law. He said he’s had problems with drugs and spent nine years in prison.
“I’ve a drug history and all that,” the 70-year-old explains. “I’m not trying to waste the rest of my life behind bars.”
This is why Earl, who didn’t want us using his last name, agreed to an alternative to bail when he was arrested earlier this fall on a drug charge. He’s now in a city program called supervised release, which expanded for all boroughs in 2016. Earl gets phone calls reminding him to appear in court. He also has to meet with someone in person every other week at the Long Island City office of the New York City Criminal Justice Agency (CJA), one of three providers of supervised release.
Amanda Kaim, a social worker at CJA, said Earl went beyond the minimum requirements by agreeing to see her for regular sessions. She also helped him with a housing program by putting him in touch with the right agency. Kaim said Earl has made all of his court dates. In her view, supervised release is saving the city money spent on housing poor defendants in jail while helping them sort out problems that may have contributed to their arrests.
“Being in Rikers…isn’t going to benefit someone versus getting their needs met outside,” she explained.
About 4,500 people across the city were in supervised release this year. City officials say the program is successful because about 87 percent of defendants now make all their court dates. Overall, they say roughly 20 percent do get rearrested while awaiting trial — the same rate as defendants out on bail.
Miriam Popper, who runs the program for the Mayor’s Office of Criminal Justice, said supervised release is a model for what bail reform will look like in January. “We’ve been able to show what we can do with a very least restrictive programming that offers support and helps people transition back into their homes in the community,” she stated.
But after the laws change in the new year, the number of defendants in supervised release could triple or quadruple, according to city estimates, because judges can no longer set bail for almost all misdemeanors and non-violent felonies. With more people eligible for supervised release, the program will have to accommodate defendants accused of a much wider range of crimes than those it currently serves, like Earl, who are typically arrested for theft and drug offenses.
This worries district attorneys, many politicians and other community members who say the new law will allow too many people accused of serious crimes to remain out on the streets, where they could commit other crimes.
How Supervised Release Will Change in January
The state changed its bail laws during the last legislative session in response to growing concerns about inequities in the criminal justice system. Numerous studies found bail punishes the poor, especially people of color, while wealthier defendants accused of the same crimes remain free until trial. New Jersey, California, and Washington, D.C. have also abolished or curtailed the use of cash bail.
When defendants appear in court starting on January 1, judges must consider the least restrictive conditions necessary to ensure they return. They can release someone on their own recognizance, with no conditions. Or, if an assessment determines there’s a risk of flight, they can order conditions such as phone calls and text messages reminding someone of their next court dates. Judges can also continue to set curfews and take away passports or firearms. They’ll also be allowed to order electronic monitoring, though this service isn’t yet available in New York.
Currently, judges can only order release with supervision if a defense attorney requests it. But under the new law, judges will have the power to order it for defendants who meet a certain level of risk. The city is adjusting its current risk assessment tool to help judges determine how much supervision defendants will need.
The Data Collaborative for Justice at John Jay College estimates that in New York City alone, 20 thousand cases where bail was set last year would have resulted in release had the new laws been in effect. To serve thousands of more defendants, the budget for supervised release will grow from the current $37.4 million to $116.4 million in fiscal year 2020. Manhattan District Attorney Cyrus Vance’s office is contributing the bulk of that by donating funds forfeited in investigations of major banks.
Popper said the city is enhancing supervised release to help stabilize defendants and keep them out of trouble while awaiting trial.
“We are working closely with the homeless outreach providers across the city so that the supervised release social workers can be in touch with people who are working with street homeless individuals every day and know where they are,” she said. There will also be additional mental health services.
But those services are all voluntary. The law only requires defendants to keep coming to court. And with so many more suspects in supervised release, the city will have to serve people accused of more serious crimes, such as choking and other offenses associated with domestic violence. This worries Leah Feldman, who works with victims as a vice president at Family Services in Poughkeepsie.
“Research tells us that the pretrial phase is the most dangerous time for a victim of domestic violence,” she explained.
Feldman said she supports bail reform overall, because most defendants shouldn’t be held in jail simply because they are poor. However, she said the criminal justice system needs to prioritize safety “by enforcing conditions that can monitor offenders post arraignment such as setting bail, which are protective actions for the victim in the community.” Otherwise, she said, “What opportunity will victims have to be able to seek safety through the criminal justice process?”
Counties outside of New York City are also much less likely to have an established supervised release program, and they certainly don’t have the funds that can be provided by the Manhattan DA.
Some advocates for victims of domestic violence aren’t as worried. Maureen Curtis, vice president of criminal justice and court programs for Safe Horizon, said her agency will work with victims to understand the new laws and plan for their safety. But she notes that most people accused of misdemeanor domestic violence charges don’t get bail anyway. “In fact, 99.9 percent of the time, there’s an order of protection issued,” she said.
WNYC reported last year that 80 percent of defendants accused of a misdemeanor choking charge were released on their own recognizance.
Under the new law, judges can order supervised release for these defendants and Popper said the city will encourage them to attend extra services, like cognitive behavioral therapy and classes about power dynamics in relationships. Of course, these will all be voluntary. Judges can set bail, however, on a defendant who persistently and willfully fails to appear in court, or who violates an order of protection. Aubrey Fox, executive director of CJA, cautioned that the interpretation of those terms is up in the air. “Obviously it will be challenged, and likely litigated,” he said.
Supervising Those Accused of More Violent Crimes
The new law only allows judges to initially set bail on someone accused of a violent crime, like rape and murder. But a couple of violent crimes were excluded. For example, a break-in by a burglar while the resident is still at home.
“Even if that person has eight or 10 prior burglaries, they could be a serial burglar, that case is no longer eligible for bail,” said Karen Friedman Agnifilo, chief assistant district attorney at the Manhattan District Attorney’s office.
Two violent crimes — burglary in the second degree and robbery in the second degree — will no longer be eligible for bail in January. And while bail also can’t be set on misdemeanors and non-violent felonies, Friedman Agnifilo said those offenses include many that are actually quite dangerous, in addition to domestic violence.
“Interestingly, also, all the white-collar offenses will no longer be bail eligible,” she explained. “Cases where people can steal millions and millions of dollars from people, from elderly vulnerable people, from businesses, identity thieves.”
Like most prosecutors, Friedman Agnifilo said she and her boss, Cyrus Vance, support ending cash bail for those accused of low level crimes. But the competing tensions of fairness and public safety have made prosecutors increasingly vocal about their concerns as January approaches.
Some judges are also concerned. George Grasso, supervising judge of Bronx Criminal Court, said he supports the criminal justice reforms overall. But he notes that the Center for Court Innovation found only 10 percent of all criminal cases in New York City will be eligible for bail once the laws change in January, and misdemeanors and non-violent felonies are excluded. Judges will have to set everyone else free — even someone accused of selling fentanyl-laced narcotics.
“That individual may be facing a very significant sentence, say, 10 years or up to 20 years in jail,” he explained. “And may have a very strong risk of flight. And in that circumstance, that’s just one example of a situation where the discretion has been removed from the court.”
But Grasso also acknowledges prosecutors in New York City have already become far less likely to seek bail. This is one of the reasons why the city’s jail population has fallen.
Advocates of supervised release believe the program has already shown it can be tailored to suit those accused of more serious crimes. They point to the program’s youth track, which works with teens accused of some violent felonies.
At CJA’s Long Island City office, 18-year-old Najah Washington sits with Zisa Aziza, a peer specialist. Washington has long, bright red hair and glamorous eyelashes. This fall, she was accused of a violent felony involving a stabbing. She insists it’s a case of mistaken identity. Nonetheless, she knows she’s not in a good place because she dropped out of high school in June and has problems managing her anger.
“I am aware of the fact that I need to change,” she tells Aziza. “My mom tells me all the time. She says she feels like I’m either going to go to jail or I’m going to, you know, be dead.”
Aziza encourages Washington to see a therapist. She isn’t ready; but she does start answering questions in a booklet about making positive changes. And she takes the address for a GED program.
JoAnn DeJesus, who has been involved with supervised release for CJA’s Queens office ever since it started as a pilot program 10 years ago, said she can appreciate the concern people have about letting people accused of more serious crimes walk free before their trials. But she said the program has proven it can help all types of defendants.
“I’ve seen them respond really well to social workers,” she said. “I’ve seen them build rapport. This is not a probation-like setting. They feel very comfortable. They come in, they really open up about some of the life circumstances that they’re going through and they trust in their social workers after they start meeting more regularly.”
Her program came under scrutiny by the tabloids this year when they reported that defendants were coddled with treats, like tickets to a Mets game. In fact, only six kids were given tickets by an anonymous donor as a reward for meeting all of their court dates and also completing extra services. The city has also spent thousands of dollars on $10 gift cards to restaurants including McDonalds when adults and teens in supervised release come to group meetings, or go beyond the minimum requirements of showing up to court on time.
Fox, of CJA, said these “incentives” take up less than 1 percent of the city’s total funding for Supervised Release. He said they’re used “in measured, modest and evidence-based ways” to encourage clients to continue positive behavior while they’re waiting to go to trial.
Despite the city’s support for supervised release, Mayor Bill de Blasio has joined other politicians and prosecutors in calling for changes to the bail laws. Unlike most states, New York’s bail statute doesn’t allow judges to consider whether a defendant is dangerous — only their risk of flight. Elizabeth Glazer, director of the Mayor’s Office for Criminal Justice, said that “doesn’t really permit an approach that’s aligned with what the risk is.”
In New Jersey, which eliminated cash bail three years ago, judges conduct risk assessments based on a suspect’s criminal history and the seriousness of the charges. They can then hold them in jail or release them with supervision. When asked if New York’s new law will keep the public safe, once judges can release more defendants but also give them pretrial supervision, Glazer answered carefully.
“We do think that these programs have some effect as well on the possibilities of reoffending.” she said. “But that’s not their purpose. Their purpose is to stay within the statute, what the legislature has required judges to do, and to get people back to court.”
Public defenders staunchly oppose changing the bail law to account for danger instead of flight risk. Lisa Schreibersdorf, executive director of Brooklyn Defender Services, said “we don’t have a crystal ball where we can predict what people are going to do in the future.”
States that do consider danger use risk assessment tools with algorithms that can be inherently biased against people of color, she said, because they’re more likely to get arrested in the first place. Though New Jersey’s version has kept the crime rate stable without causing a greater percentage of black and brown people to be held in jail before their trials, Schreibersdorf doesn’t think New York needs to change its statute if pretrial supervision is well-run.
“I actually do think it’s going to work,” she said, optimistically. “I think it’s important not to think that on January 1st we have to come in with a completed project.”
With the expansion in January, all sides will be closely watching the courts. They’ll be looking at how many people are released and under what conditions. They’ll also be watching for any changes in the crime rates.
Supporters of the new law also note that everyone is innocent until proven guilty. Thirty-year-old Zisa Aziza knows that from personal experience. Long before becoming a peer supervisor at CJA, she said she spent three weeks in different jails in California until the charges were dropped.
“It is extremely traumatizing,” she recalled. “The amount of spiritual pain one can experience while incarcerated can be completely prevented and avoided with the expansion of the bail reform.”