A Jail Population of 3,700 or Lower is Achievable

After decades of unrelenting human rights violations and resulting tragedies, New York City law requires the permanent closure of the unsafe jails on Rikers Island by August 31, 2027. According to the original plan, Rikers would be replaced by four modern jails with a citywide capacity of 3,300 people. However, Mayor Eric Adams appears to be increasing this target number to about 3,900.

Demonstrating that sizable jail reductions are possible, the city’s daily jail population previously plummeted from over 20,000 in 1991 to 8,400 in 2019, accompanied by historic declines in crime and arrests. Amid bail reform implementation and urgent efforts to release people at the onset of the pandemic, the jails reached a low-water mark of 3,809 on April 29, 2020.

But since then, the downward trend has reversed, imperiling the city’s commitment to shutter Rikers Island. The number of people in pretrial detention, which currently make up 85% of the jail population, has doubled since April 2020. Comprising another 8% of the population, people held on jail sentences of under a year have swelled to three times their 2020 number. Now over 6,200, the total jail population is too large to close Rikers on schedule unless policymakers launch new reforms. 

Meanwhile, the violence and appalling conditions at Rikers are by some measures growing worse. Unlike state prisons, Rikers was never intended to house people on a long-term basis. Yet spiraling average stays exceed 100 days, and more than 1,300 people in jail today have been languishing there for over a year.

Two reports released in 2021 identified dozens of strategies capable of safely and significantly shrinking the city’s use of jail. (Disclosure: I coauthored one of these reports, and the other appeared in Vital City.) Starting immediately, city officials, judges, prosecutors and defense attorneys could partner with experts and advocates to finalize promising new initiatives. With judges’ decisions affecting virtually everyone in jail, they play an especially outsize role in any plan. They are therefore heavily featured in the shortlist of steps outlined below.

1. Adopt Proven Strategies to Shrink Case Processing Delays 

In 2019, just 35% of indicted felonies in New York City were disposed within the national standard of 180 days. With jail stays ballooning during the pandemic, just under 2,400 people (46% of those currently held pretrial) have been incarcerated longer than that. The good news is that national research makes clear what works. Much of it boils down to encouraging judges to be more active — to set interim deadlines, to hold attorneys accountable for following speedy trial rules, to eliminate excessive intervals between court dates and to use case conferences to discuss and resolve bottlenecks. When partnering with the Brooklyn Supreme Court administration to pilot such practices, they led 80% of indicted felonies to be disposed within 10 months, compared to 60% for a matched comparison group.

2. Require Pretrial Release After 180 Days

To give case processing reforms teeth, state legislators could pass a law setting strict detention time limits of 180 days, with limited exceptions — adapting an excellent provision introduced several years ago. The court administration could institute an automatic hearing before an administrative judge at the 180-day mark, with the goal of ordering pretrial release with individualized conditions or, at a minimum, setting an enforceable timeline for reaching a fair case resolution. 

3. Stop Setting Bail on First Arrests

Evidence indicates that even in serious violent felony cases, releasing people with no prior arrest in the past two years lowered the city’s rearrest rate when compared to bail or detention. Moreover, the city’s validated release assessment, developed by national experts and rolled out in late 2019 for the express purpose of limiting unnecessary pretrial detention, never recommends anyone for pretrial conditions on a first arrest unless they are homeless, including people charged with violent felonies. Yet in 2022, even with bail reforms in place, the city’s judges counterproductively set bail or remanded people in 42% of these patently low-risk cases. 

4. Embrace the Release Assessment

In New York, the legal purpose of setting bail is ensuring return to court — something even people charged with serious crimes do at high rates year after year. Use of the release assessment could promote reliable, data-driven decisions — but the city’s judges are largely disregarding it. According to the assessment, three-quarters of people facing violent felony charges are appropriate for release on recognizance (ROR), yet in 2021, judges ordered ROR in 26% of these cases, while setting bail or remand in 53% (including 56% of Black and 43% of white people). While judges appear to be overdetaining people on average, research also indicates that decisions vary enormously from judge to judge on similar cases, undermining due process. If guided more by the assessment, judges would: (a) set bail under half as often, (b) avert racial bias and (c) constrain disparate outcomes from judge to judge. 

Although New York law forbids judges from basing their decisions on people’s perceived (and often misperceived) risk to public safety, it is worth adding that many of the same factors the release assessment links to failure to appear (e.g., multiple recent convictions, a pending case or a long warrant history) predict public safety risk as well. Some of the specific characteristics associated with a high likelihood of court attendance are precisely those our research at the Data Collaborative for Justice has linked to lower recidivism rates when judges release people. 

In moving the ball forward, it is well within the purview of the state court administration to issue a memo advising judges to rely on the release assessment for default guidance. The court administration should also ensure regular training and retraining of judges in the science behind the release assessment and the effects of its use in supporting court attendance and public safety alike.

5. Use Mandatory Programming for High-Need Cases

For people who really do pose a flight risk, the law allows judges to set restrictive conditions. In lieu of bail, judges could order more “mandatory programming,” encompassing anything from housing or employment assistance to treatment for health needs. Decades of research confirms that evidence-based programming for an array of individual needs can reduce recidivism. In the pretrial context, mandatory programming is suitable for people facing significant barriers to court attendance, or those who are initially noncompliant with a less stringent supervision regimen. Such an intensive requirement, however, should be carefully reserved for individuals who would otherwise face pretrial detention. 

6. End Unaffordable Bail

New York’s bail statute explicitly directs judges to consider “individual financial circumstances” and whether bail poses “undue hardship.” Courts across the country have ruled the Constitution requires judges to base bail decisions on what people can pay. Not so in New York City, where 10% or fewer people can post bail at arraignment. The court administration could:

• issue a directive mandating a credible inquiry into what people can pay before setting bail;

• advise on the fair use of partially secured bonds, which allow people to pay only 10% of the bail amount up front — a discount judges often reject or circumvent by inflating the initial total; and

• put a bench card in every courtroom (modeled after existing tools) to help judges assess defendants’ ability to pay and indigence (e.g., whether people are homeless, on public assistance or have incomes below 125% of poverty).

7. Implement Automatic Early Bail Reviews

A key provision dropped from New York’s final bail reform law required a rehearing whenever someone cannot post bail after five days. State legislators should pass this provision now. New York City courts should also assign one judge per borough to lower bail to a payable amount or order other conditions like supervised release or mandatory programming after no more than a week. 

8. Invest in Critical Tools

Unlike judges, the mayor does not directly incarcerate people. Still, the Adams administration could offer critical data, expertise and investments in jail alternatives. First steps could include:

• fully funding the citywide rollout of an intensive supervised release track to offer judges a larger menu of non-money release conditions (current funding is not nearly at scale);
• setting firm training schedules to ensure every new criminal court judge, prosecutor and defense attorney learns about the city’s release assessment and options like supervised release and mandatory programming; and offering regular retraining to longer-serving judges; and

• implementing a formal tool to assess people’s financial resources and inform the court of how much bail money (if any) they can post.

9. Establish Targeted Supportive Housing and Mental Health Options

The Adams administration could establish protocols for linking people at arraignment to supportive housing and mental health beds reserved for justice-involved people who are homeless or suffering from mental illness. The administration could also convene all players to figure out how to conduct more early needs assessments and facilitate higher enrollment in the city’s effective mental health courts, which have been operating under capacity for years. Such steps would help those most vulnerable — a growing population at Rikers, as people flagging for mental illness have risen from 44% in 2016 to 55% currently.

10. Notify the Court of Chronic Medical or Mental Health Conditions

The city’s Correctional Health Services (CHS) often submits compassionate release requests that go unaddressed. For the more than 29% of people at Rikers with a chronic medical condition and the 21% with a serious mental illness, the city should have CHS more routinely convey a release recommendation to the defense attorney and the court (with the individual’s permission). Each borough should assign a judge, and each DA’s office should assign a senior prosecutor, to review these notices and consider release alternatives to the care (or lack thereof) provided at the city jails. 

11. Curb the Incarceration of Women, Gender-Expansive People and People 55 and Over

These groups add up to more than 850 people in today’s jail population, pose a low risk of rearrest and face disproportionate health risks (including death) at Rikers. The city could conduct a needs assessment at Rikers intake and swiftly inform judges and attorneys of suitable off-ramps, such as community-based mental health services or supporting housing via SHERO, a well-regarded alternative to incarceration initiative for women launched in 2016. There are currently over 350 women alone at Rikers, even though a previous report suggested this number could be close to 100 by adopting a range of feasible diversion strategies.

12. Reboot the Early Release Program

At the pandemic’s onset in March 2020, the city released 296 people serving local jail sentences (54% of those serving such sentences at the time) to daily supervision via the Early Release (6A) Program. Considering research that incarceration sentences either have no effect on recidivism or even increase it, the Department of Correction could screen everyone and divert most people facing sentences of under a year to this program.

The Bottom Line: Possible Jail Reduction Implications

Projecting the precise results of future policies is an incurably hazardous exercise, prone to far less “hard science” than those who create projections sometimes like to admit.

First, policymakers cannot launch everything at once and may continue to resist some ideas entirely; the best-case scenario is a rapid, but phased, sequence of efficacious reforms. Second, policymakers will always allow for a modicum of case-by-case discretion. Third, scaling up community-based treatment resources to fully meet the demand for newly imagined diversion options may take years. Fourth, practitioners on the ground may not faithfully implement what policymakers intend, leading actual jail reductions to underperform expectations. Fifth, a good way to improve implementation is to launch new initiatives after engaging stakeholders at implicated agencies — but such consultation is likely to yield less ambitious initiatives than those drawn up by authors of Vital City articles. But lastly, there are surely countless good ideas for safely reducing the use of jail in New York City that this article omits — a final caveat suggesting that greater jail reductions may be achievable than those estimated below.

Upshot: Projecting policy reforms lies beyond any mathematical formula and depends crucially on the exercise of judgment. That is why the chart below provides a range of possibilities, though even then, reality may fall higher or lower than what emerges from this article’s good-faith effort.

All that said, given the January 2024 jail population of about 6,200 people in the absence of reform, and applying conservative assumptions of what reform could accomplish, steps outlined in this article could potentially bring the jail population to 3,700 or lower with robust implementation. This presumes a genuine will to act by all key players.

Note: For further details on projection methods and their limitations, please see the technical appendix. To avoid conveying an implausible level of precision, numbers for individual strategies are rounded to the nearest 50, and total jail reductions are rounded to the nearest 100. Strategies are reordered from this article’s main narrative to present them from earlier to later decision-points in the continuum of people’s justice involvement. People removed from the jail population at earlier points (e.g., not put in pretrial detention in the first place) are not double-counted when considering who can be removed from the population at later points (e.g., by reducing case delay for detained people).