In the vast majority of cases, defendants are not detained
while their cases are pending.
To close Rikers Island, the city must reduce its jail population significantly, from its current level of around 6,000 total individuals, of whom 5,300 are being held pretrial. The city’s fluctuating jail population has become a fixation among policymakers, criminal justice practitioners and advocates. Yet many involved in the debate have little idea about the number of people awaiting trial who are released to the community, despite its obvious relevance to the Rikers debate. After all, the more people who are released to the community awaiting trial, the fewer who are held in pretrial detention.
As of November 2023, there were 49,507 people released to the community. In other words, in the vast majority of cases, defendants are not detained while their cases are pending. Put another way, there are nine people in the community for every one person in pretrial detention — a higher rate than other jurisdictions where reliable data has been published.
The number and proportion of people being released pretrial matters, because it shows how much of a challenge New York City faces in meeting its goal of further reducing the jail population. The system must continue to function at a high release rate just to keep the jail population at its current level. Increasing the rate of pretrial release is one strategy (among many) to accomplish further reductions.
Unlike many cities, the most common outcome for a defendant with a pending case in New York is to be “released on recognizance” (or ROR), meaning that the defendant is free to leave with no conditions other than appearing for their next scheduled court appearance. New York City pioneered the use of ROR dating back to the early 1960s and has had consistently high ROR rates since then. (The ROR rate for pending cases increased from 60% in the late 1980s and 1990s to as high as 75% in 2019.)
For defendants who are more likely not to show up, the city has created a “supervised release” program. New York City’s Criminal Justice Agency (CJA), the agency I direct, is one of four nonprofit providers who are responsible for implementing the program, in which trained social workers provide community-based supervision and support for individuals with pending cases. The program combines mandated appointments (e.g., weekly or monthly meetings) and voluntary services (e.g., drug treatment, job training, mental health counseling).
In New York City, there are nine people released to the community for every one person held in pretrial detention.
The supervised release program manages cases whose defendants not so long ago would have been held in pretrial detention. There are now close to 10,000 people out on supervised release in New York City on any given day, almost twice as many people as those who are detained pretrial. This is a sea change in the operation of the New York City criminal justice system — in recent years, the number of people in the program citywide has more than quadrupled.
One of the concerns that was expressed in activist quarters when the supervised release program first launched was that it would engage in “net widening,” expanding the reach of the criminal justice system over populations that would otherwise be freed. This isn’t how things have played out as the program has evolved in recent years.
In its original iteration, supervised release had strict eligibility criteria. With limited exceptions, those charged with a violent felony offense were ineligible. In addition, a risk tool was used to measure the likelihood of nonappearance and new pretrial arrest, with the supervised release program focusing on a “medium” or “medium-high” risk group. (If you scored higher or lower on the risk tool, you weren’t eligible for supervised release.) At the same time, defense attorneys were encouraged to bring cases to the attention of the program, provided they met the program criteria. This was meant to reduce the risk of net widening, because presumably defense attorneys would only advance cases that were at genuine risk of pretrial detention (as opposed to an ROR).
A study published by the independent research group MDRC showed that during the evaluation period (2017-2019), program participants had high court appearance (and low pretrial arrest rates) despite being under pretrial supervision for nearly twice as long as a comparison group. The upshot of the MDRC evaluation was that the program’s levels of supervision and support were well matched to levels of risk of the people enrolling in the program.
However, one of the consequences of the controversial statewide bail reforms introduced in January 2020 was the removal of the eligibility criteria for the supervised release program. Over the objections of law enforcement, state law was amended to require judges to choose the least restrictive conditions of release to secure a defendant’s return to court. (New York is the only state in the country where judges are not allowed to take the likelihood of reoffending into account when making release decisions.)
The city’s supervised release program manages cases whose defendants not so long ago would have been held in pretrial detention.
The result has been not just a rapid expansion of supervised release but a change in the kinds of cases coming into the program. When you take a close look at the supervised release population today, roughly half are charged with a crime in which judges retain the discretion to set monetary bail. More strikingly, regardless of bail eligibility, those given supervised release and those held in pretrial detention have similarly high rates of pending cases and recent prosecutions — much higher than those who are released on recognizance or those who pay bail. In practice, what this means is that on bail-eligible cases, judges are using supervised release as the last chance they give individuals before setting high amounts of cash bail should they be arrested again while in the program. For non-bail eligible cases, they are reserving supervised release for the hardest cases, typically those cases that are coming through the system repeatedly.
The fact that supervised release is now focused on a higher-risk population of people should reduce concerns about net widening. And in fact, policymakers have recognized the critical importance of supervised release, providing increased funding to keep pace with growing caseloads.
A challenge going forward is to improve outcomes with the very small number of participants with high rates of pretrial failure. A data dashboard recently created by CJA illustrates the importance of focusing increased attention on this highest-risk group. It confirms a central insight from the criminal justice literature: A small number of people are responsible for a disproportionately large share of alleged offenses. According to the dashboard, over 90% of individuals are arrested and prosecuted only once (80%) or twice (10% to 12%) in a given year. But in 2022, 2,505 people were arrested and prosecuted in New York City five or more times. About 75% of those 2,505 people were arrested at least once on a felony charge — including 40% on a violent felony charge. This challenges the argument of some advocates that these “frequent flyers” are coming through the system only on minor charges. Fully 80% of this population has received supervised release. In 2018, it was only 16%, which highlights the changing nature of the program.
The changing nature of the supervised release caseload raises a new set of questions for researchers and practitioners to address. For whom is the current program model working best, and are there groups that require new models of supervision and more intensive supports? What are the public safety impacts in the short and medium term of releasing someone to the program versus setting monetary conditions of release (which could either lead to pretrial detention or a person paying their bail and obtaining release with no supervision)? Looking at like-for-like cases, how well does supervised release perform versus other conditions of release?
As the old saying goes, in government, there are no solutions, only trade-offs. To cut through the polarized debate about bail reform in New York, we will need to know more about how the trade-off is working between the increased use of supervised release and the decreased use of pretrial detention, particularly for those cases that remain bail eligible in the post-bail-reform world. As CJA has demonstrated through its suite of pretrial data dashboards, making trustworthy data publicly available is a key part of building trust in criminal justice reform efforts.
Supervised release has been critical to keeping the Rikers population within striking distance of the numerical targets required to shut down the facility. The question remains: how do we take the next step? And what role can and should supervised release play in this?
This piece is adapted from a forthcoming essay in Transactional Criminology.