Want Smaller Jails? Unstick Criminal Proceedings

For me, the plan to close Rikers Island and replace it with four borough-based jails by 2027 is not an abstraction. After the city issued the landmark “Roadmap for Closing Rikers Island” report, I served on Mayor de Blasio’s Justice Implementation Task Force, in a working group focused specifically on ways in which the inmate population could be safely reduced. 

More tangibly, for the past several years, I’ve been able to observe firsthand the slow demolition of the Queens House of Detention from the eighth floor of Queens Supreme Court, Criminal Term, where I still have chambers. The decrepit detention facility, where I used to visit clients as a legal aid lawyer, was adjacent to the courthouse and attached to the District Attorney’s Office. Although many people probably would have loved to see the “Queens House” toppled dramatically with a wrecking ball, the demolition had to be done deliberately and carefully, minimizing the disruption of court operations and without causing damage to adjacent buildings. Because the building’s façade was removed early in the demolition process, I could see the workers methodically deconstructing the building — brick by brick and cinder block by cinder block. The jailhouse shrank every week; now it’s gone, flattened to make room for one of the new detention facilities that will replace the Rikers jails.  

Closing Rikers Island depends on significantly reducing the number of inmates detained there, to around 4,000. To put that goal in context, 20 years ago, the inmate population in New York City’s jails was close to 19,000. As crime in the city decreased dramatically, the jail population shrank along with it. In the spring of 2020, it dipped as low as 3,800 when, with the COVID-19 pandemic bearing down on New York, a concerted effort was made to responsibly release as many inmates as possible. More recently, however, the jail population has crept back up, to over 6,000. 

The majority of the inmates at Rikers — over 80% — are criminal defendants awaiting trial or some other disposition of their cases. (The remainder are serving sentences of less than a year or being held on alleged parole violations.) A significant majority of these pretrial detainees are charged with violent felonies, including, according to our most recent numbers, around 900 hundred individuals indicted for murder or first-degree manslaughter. 

A central issue in the discussions about closing Rikers is what we call case processing, that is, the way in which judges try to manage cases efficiently and proactively as they wend their way from inception at arraignment to their ultimate resolution — whether it’s a guilty plea, a trial or a dismissal — with a focus on the points along the way where cases tend to get bogged down. Since the unprecedented disruption of normal court operations caused by the pandemic, our backlog of criminal cases in New York City has increased. At the end of 2019, we had around 1500 indicted cases over six months old where the defendant was incarcerated pretrial; that number is currently around 2700. In turn, there has been an increase in the average length of time pretrial detainees are incarcerated at Rikers. Particularly concerning to me, as the court system’s chief administrator, is a substantial increase in the number of cases involving incarcerated defendants that are over two years old. 

The question is, why has this happened and what can we do to address it?

As far as the causes of these delays, two of the main factors were beyond the court system’s control. First, the pandemic, with its mandated social distancing and strict limits on indoor gatherings, meant that for almost two years, it was very difficult for courts to do the things that help keep criminal cases moving forward: hearings and trials. An imminent trial date, in particular, has a way of focusing the parties’ attention on a case and, often, compelling a resolution. Second, coinciding with the peak pandemic years was a well-documented increase in violent crime in New York City. So, at the same time that we were largely unable to conduct hearings and trials, more serious cases were coming into the courts.

2020, however, was not just the beginning of the pandemic; it was also the year that transformative changes to New York’s bail, discovery and speedy trial laws took effect. Although bail reform has gotten a lot of attention in the press, one of the most consequential components of the amendments was tying the prosecution’s ability to be considered ready for trial, and thus stop the speedy trial clock from running, to compliance with new discovery provisions that mandate the “automatic” disclosure to the defense of a very broad array of information — 21 categories of materials that include police paperwork and body-worn camera footage, witness names and contact information, transcripts of grand jury testimony, DNA reports and NYPD records of the disciplinary histories of police witnesses, just to scratch the surface. 

One of the selling points of this discovery reform was that the prompt exchange of information between the prosecution and defense would hopefully lead to the faster resolution of cases. If the prosecution produced decisive evidence of guilt (like surveillance video or a dispositive DNA match), an early guilty plea might ensue. By the same token, if the discovery process revealed serious deficiencies in the prosecution’s case, the dismissal of unwarranted charges, or even the entire case, might result. 

Unfortunately, it has not turned out that way. 

Here’s why. In New York, prosecutors have six months to be ready for trial when the top charge is a felony. If they fail to do so, the case must be dismissed. (There’s an exception for murder cases, for which there is no statutory speedy trial time limitation.) How this plays out, in the simplest terms, is that the six-month time period begins to run when the prosecution begins and continues running until the prosecutor has done essentially everything necessary for the case to be tried. If the defense takes certain actions, however, like filing motions or requesting a hearing or an adjournment, the speedy trial clock stops. 

Our criminal justice system is an adversarial one; both sides are expected to do whatever they can (within ethical limits, of course) to gain an advantage. One reality of the present discovery regime is that, from the defense perspective, it often rewards waiting. It can take the prosecution weeks, if not months, to compile and produce the extensive discovery required by the new statute, and, during that time, prosecutors cannot be considered ready for trial, absent exceptional circumstances. If the defense just waits until all of the discovery has been produced — not doing anything in the meantime that will stop the speedy trial clock — it will continue to run, putting pressure on the prosecution. From a tactical point of view, this will often make sense: Perhaps the prosecution will be unable to provide the requisite discovery within six months and the case will be dismissed because the clock has run. But even if that doesn’t happen, there’s a good possibility that a substantial amount of speedy trial time will elapse, which will likely be advantageous for the defense down the road. 

Even after the prosecution has provided discovery to the defense, that’s far from the end of the matter. Having received all of the materials that the law now requires, defense attorneys have a constitutional obligation to review them carefully — to read through all of the police paperwork, prior testimony, forensic reports and medical records; watch the body-worn camera footage and surveillance videos, and listen to 911 calls and police radio transmissions; perhaps attempt to interview the witnesses whose names and contact information have been provided; and on and on — so that counsel can effectively engage in plea negotiations and strategically prepare for trial. 

All of this takes time, and judges are understandably wary about pushing too hard to rush counsel along, especially since courts are cognizant that defense lawyers are often juggling a number of serious cases at the same time. 

Finally, the connection between discovery compliance and prosecutorial trial readiness has led to a new brand of motion practice that has become ubiquitous: challenges to the prosecution’s discovery compliance, which typically involve disputes over belatedly produced materials or differing interpretations of what is required by various statutory provisions. These motions are often complex and can take months to resolve. If successful, they can result in a finding that the prosecution’s assertion of trial readiness was “illusory” — or invalid — and then dismissal of the case.

The current discovery process, in short, poses significant challenges to efficient case management. My intention here is not to criticize discovery reform — as a trial judge, I was frequently frustrated by pre-reform discovery practices, which, for different reasons, often delayed cases, and I have long supported the animating purpose of the changes. But effective case processing requires a realistic assessment of why cases get delayed. And discovery is currently an area where we need to troubleshoot and make improvements.

What else causes criminal cases to languish? Defense attorneys who take on more complicated cases than they can reasonably handle, statutes that restrict the plea bargains prosecutors can offer in serious cases, and harsh mandatory minimum sentences for repeat offenders that may not be warranted in certain cases, and which can make settling cases nearly impossible. Beyond all of that, I believe that something of a post-pandemic malaise has set in when it comes to trying cases. 

The dearth of criminal trials is not a recent phenomenon, of course. Several years before the pandemic, the U.S. Supreme Court acknowledged “the reality that criminal justice today is for the most part a system of pleas, not a system of trials.” Still, in New York City, we have yet to return to the number of criminal trials that we were conducting before the pandemic. Part of the reason for this, I believe, is that during the pandemic, everyone got out of the habit of trying cases. Trying cases is hard for everyone involved — it’s emotionally draining and physically taxing. For lawyers, it consumes nearly every waking hour of their day, and all their other work gets sidelined. No wonder, then, that many lawyers will postpone a trial for as long as a judge allows them to. 

So, aside from hoping for continued declines in shootings and murders like we saw last year, how do we in the criminal justice system begin to address these issues and, in doing so, decrease the number of pretrial detainees at Rikers? 

First, we need to usher cases through the discovery phase much more quickly. Part of the responsibility for this naturally falls on prosecutors’ offices, which have to adapt to the admittedly onerous demands of the discovery laws with appropriate staffing and by investing in technology that can help facilitate the efficient compilation and sharing of information. Fortunately, last year’s budget provided $50 million dollars to New York City district attorneys’ offices for this purpose.

And judges, particularly in cases involving incarcerated defendants, need to proactively manage the discovery process by setting firm deadlines for compliance, communicating with the parties in between court appearances to assess whether those deadlines will be met and prioritizing the disclosure of the most significant information in the case. Additionally, discovery disputes and formal challenges to discovery compliance need to be resolved quickly. 

Second, judges should have the discretion in appropriate cases to dispense with statutory restrictions on plea bargaining and depart from recidivist sentencing provisions. Many Rikers cases share characteristics that complicate their resolution from the outset. As noted, most of the individuals being detained pretrial are accused of violent crimes, and many of them have criminal records that subject them to stiff sentences that are mandatory for repeat offenders. Both of these things can make settling cases very difficult because New York law sets restrictions on the plea bargains that can be offered to defendants charged with violent crimes that sometimes foreclose the possibility of resolving a case on terms that both sides think are fair and reasonable. Moreover, even the minimum prison sentences for repeat offenders are often so lengthy that a defendant facing them has no real motivation to engage in plea bargaining. 

In some cases, the plea bargaining restrictions and recidivist sentencing provisions make sense, but sometimes they don’t — for example, when the defendant’s prior criminal behavior occurred in the distant past and the new offense is not serious enough to justify the minimum sentence the law requires. This is why the Unified Court System has proposed legislation that would allow the court to sentence a recidivist defendant as a first-time offender or dispense with the statutory restrictions on plea bargaining, when the prosecution consents and doing so is consistent with the interests of justice.

Finally, we need to get back to trying cases in the numbers that were the norm prior to the pandemic. Most lawyers who choose to become prosecutors or public defenders do so because they want to experience the adrenaline rush that can only come from a withering cross-examination or the delivery of a summation that makes the difference between a guilty verdict and an acquittal. To be sure, this vision of our criminal justice system has long been something of a fantasy. But since the pandemic, the gap between perception and reality has become even more pronounced.

Criminal trials are important for many reasons, not the least of which is the role they play in forcing both sides to realistically appraise the strengths and weaknesses of a case and decide whether it’s in their best interest to settle. Since my appointment as chief administrative judge, I have repeatedly stressed to our courts that we should never be the reason that a trial is delayed; when both sides are ready to try a criminal case, the court must be ready as well.