Four New York City District Attorneys (photo: John McCarten/City Council)
After a four-month hiatus as the courts struggled to go virtual amid the coronavirus outbreak, New York City's supervised pretrial release program is taking new clients again in all five boroughs.
Supervised release, established as a middle-ground between bail and release on recognizance, allows defendants to return to their communities before trial, under the watch of a case manager who checks in regularly, and also links the client to social services. The program has been lauded by some elected officials and prosecutors as an effective tool to ensure defendants make required court appearances and has been a growing part of the city's decarceration effort over the past decade, particularly in recent years.
But when the pandemic forced court proceedings to go online in March, supervised release intake grinded to a halt. Still, funding for the program almost tripled in the recently-passed fiscal year 2021 city budget and now judges in all five boroughs are again taking up the option at arraignments. Throughout it all, the 3,000 existing participants continued in the program using remote check-ins instead of on-site ones, while the city jail population has dropped to approximately 3,900 as of July 3, down from a daily average of over 8,300 in 2018 and about 11,700 in 2013.
"Supervised release is a crucial part of this administration’s ongoing efforts to reduce the city’s jail population," wrote Miriam Popper, who oversees the initiative as the executive director of Pretrial Justice Initiatives at the Mayor's Office of Criminal Justice (MOCJ), in an email. "It is important that attorneys, judges, and defendants have this option, particularly during this public health crisis, when we are trying to decrease the number of pretrial people in city custody."
In the scheme of New York State's pretrial statuses, supervised release falls somewhere in the middle in terms of how restrictive it is for the defendant -- remand to jail without the option of bail being the most restrictive and release on recognizance being the least. It still places some obligations on the defendant, like checking-in with case managers and creating an independent living plan, but provides greater freedom than in bail cases, where returning to court is conditioned, in part, on a desire to become financially whole.
Supporters of the program say it’s a constructive tool, relying on relationship- and community-building to not only encourage court appearances but to help foster better outcomes for clients after trial.
"The whole idea is to take people who are most often disconnected from the services they need to rebuild or reimagine their lives and, through supervised release, get them connected to those services," said Stanley Richards, executive vice president of The Fortune Society, which provides housing and a wide variety of other supports to individuals in the program.
"Supervised release is sort of the safety net that continues on with people throughout the adjudication of their cases to get them the services," he said.
First piloted in Queens in 2009, then in Manhattan in 2013, Mayor Bill de Blasio announced the initiative would expand citywide in 2015, with a $13.8 million investment from Manhattan District Attorney Cy Vance's asset forfeiture coffers.
“There is a very real human cost to how our criminal justice system treats people while they wait for trial,” de Blasio said in a 2015 statement. “Money bail is a problem because – as the system currently operates in New York – some people are being detained based on the size of their bank account, not the risk they pose. This is unacceptable. If people can be safely supervised in the community, they should be allowed to remain there regardless of their ability to pay.”
As part of the same announcement, then-Police Commissioner Bill Bratton praised the initiative as a public safety tool. “This program moves the city towards a more fair and equitable criminal justice system by decreasing unnecessary detention for those individuals awaiting trial, while more accurately assessing public safety risk and the supervision necessary to prevent people from reentering the criminal justice system,” he said in a statement.
Court appearance rates for supervised release participants are similar to cases where bail is set and where defendants are released on recognizance. Between March 2016 and March 2019, the court appearance rate for the 12,262 participants was 88 percent citywide, the same as releases without supervision, and just below the 91 percent appearance rate for bail cases. (The boroughs with the highest court appearance rates for supervised release were Manhattan and Queens, with 92 percent each, where the program has been running for longer.)
Last year, in anticipation of changes to the bail law, Vance invested another $100 million to be spent over two years -- coupled with additional city funding -- to drastically scale up the program.
In the city's current Fiscal Year 2021 budget, passed July 1, $117.5 million has been allocated to supervised release, including $50 million from Vance, a 270 percent increase over the fiscal year 2020 budget, according to a New York City Council spokesperson (a spokesperson for MOCJ said contracts are still being finalized and the final budget may be slightly smaller than the Council's figure). The city expects to triple or quadruple participation under the expansion, according to a City Hall press release announcing the new funding last year.
And it appears to be on track. In all of 2019, 641 defendants in Manhattan were released pretrial under supervision, compared with 1,162 in the first six months of 2020, according to Vance's office, even with the pandemic slowing the program.
"In a way, COVID kind of buried the lead," said Aubrey Fox, executive director of the New York City Criminal Justice Agency, which contracts with city government and first piloted the program in Queens. "This is like the quickest scaling-up process that I've experienced in my career."
"The increase in the city budget was in response to the new needs created by the State's bail reform law," Popper wrote in the email to Gotham Gazette. "Supervised Release has now expanded its eligibility to anyone pretrial, making an important set of resources available to a sizable new pre-trial population."
"The expanded Supervised Release will continue to utilize community-based resources, rather than law enforcement, to help get our clients back to court," she said.
But the changes to the bail law require judges to select the "least restrictive" appropriate pretrial status. With most misdemeanors no longer eligible for bail, supervised release is actually the most restrictive option in many cases.
"We don't actually want people to be ordered to supervised release if they don't need to be," said Mike Rempel, director of jail reform at Center for Court Innovation, which runs supervised release in the Bronx, Brooklyn, and Staten Island. "We don't want to over-supervise people who can show up at their court dates without the supervision."
MOCJ contracts with New York City Criminal Justice Agency and two other nonprofits to administer the program: Center for Court Innovation; and Center for Alternative Sentencing and Employment Services. The organizations use a risk assessment tool to determine each defendant's likelihood of returning to court and make a recommendation to a judge.
In supervised release cases, defendants are connected with a case manager from one of the three contracted organizations. The organizations in turn work with other providers, like Fortune Society, to connect them with a range of social services. Typical supportive work includes connecting participants to public assistance, helping them enroll in substance abuse treatment programs, or helping them find housing, employment, and schooling.
While checking in with a case manager and the frequency of the check-ins is mandated, other aspects of the program are voluntary.
"It's not meant to be a law enforcement-heavy approach to supervision," Fox said. "There are requirements, but the idea is to create this relationship between the individual who has been assigned to the program and their case manager."
When the coronavirus pandemic hit New York, court administrators struggled with the technical element of ensuring that confidential conversations between defendants and MOCJ's court representatives could continue to take place at arraignment, once those proceedings had moved to a digital format.
From March 17 to mid-July, the New York State Office of Court Administration (OCA), in consultation with MOCJ, suspended new client intake, while supervised release providers continued to serve roughly 3,000 current defendants through remote contact.
Around the same period, gun violence in the city skyrocketed. And more recently, between July 5 and August 2 shootings increased 165 percent compared to the same 28-day period last year, according to the NYPD.
De Blasio and Police Commissioner Dermot Shea have maintained the increase in shootings and murders is in part the result of suspended court operations. Court administrators, district attorneys, and public defenders have all refuted the claim, which is based on the idea that with court capacity limited, violent and crime-prone individuals are returning to the streets without the full accountability of the criminal legal system. Lucian Chalfen, a spokesperson for OCA, called the claims "at best totally factually incorrect and at worst an attempt to shift the blame for an increase in street violence," and prosecutors have insisted that arraignments have continued.
In the first quarter of 2019, the last period data is available, 8 percent of supervised release participants were rearrested for a felony -- which would include gun charges -- while awaiting trial. MOCJ did not provide comparative rearrest data for bail and release on recognizance cases and OCA directed arrest inquiries to the police department, which did not respond to requests for comment.
"Anyone who might have been released on SR [supervised release] instead of having bail set was not eligible for that avenue of release," wrote Alice Fontier, managing director of Neighborhood Defender Service of Harlem, in an email to Gotham Gazette, in reference to the possibility of release on one’s own recognizance (ROR). "It is rare that people charged with gun cases are released ROR."
"Accordingly, I don't think supervised release has any relevance to gun cases," she added.
With new entrants into supervised release suspended during the pandemic, more defendants in cases of criminal possession of a weapon were released on recognizance than on bail. From March 16 to July 26, 422 people facing weapons possession charges were released on recognizance, compared with 388 for whom bail was set, according to data provided by OCA.
"I think in general there may have been some people who would have really benefited from supervised release services but it was not so much that as a result they were detained," said Fox of the Criminal Justice Agency, indicating that some released on recognizance could have been in the supervised release program had it been taking new entrants.
While supervised release stopped taking new participants between mid-March and mid-July, providers were tapped to provide a similar service to a new clientele: individuals released from city jails because of COVID-19 health concerns.
Between March 16 and July 5, the city released roughly 1,500 jail detainees to mitigate the risk of COVID-19. At least 313 of them -- those who had completed trial, were serving city jail terms, and were let out under an early release program known as "6A" -- were put under the purview of the three supervised-release providers. While the form of the supervision was similar to the pretrial program, the conditions of their 6A releases meant checking in with a case manager daily, a much stricter requirement than the weekly or monthly check-ins of pretrial releases.
Providers, who normally have a representative in the courtroom at arraignment, were put in the position of having to reach and orient new participants outside of the typical framework.
"Now suddenly people were being released in the middle of the night from Rikers," Fox said. "How do we connect them to supervised release?"
"I have to say this period of pause was a period of intense work and creativity for all the supervised release providers," he added.
"Anytime we release someone, we have to make sure we work to keep everyone as safe as possible, but we had a real imperative about saving lives, that came first," de Blasio told reporters at a press conference in April, in response to questions about how supervision of the early COVID releases was working.
"The fact is, we're going to keep doing whatever it takes to monitor these individuals," he said. "And then, as soon as the crisis is over, the way the releases occurred, if anyone needs to be brought back to jail, they will be.
MOCJ said the three providers are still supervising roughly 70 people who were released under 6A. Of the original 313 early releases, 39 were rearrested by April 30, including one on a gun charge, according to data posted by MOCJ's official Twitter account.
Of the 3,000 participants in supervised release during the height of the pandemic, Fox said engagement remained high. "The programs have all worked really assiduously to keep engaging people," he said. "It's gone surprisingly well."
"We pivoted from being a court-date reminder service to being a wellness initiative where we were texting everyone daily wellness texts that offered links to services," in addition to personalized calls, Fox said. He said several hundred referrals to social services were made during the state of emergency.
"That offering is definitely not as intense as [pre-pandemic] supervised release," Fox noted, "but we did find it was quite effective in terms of at least giving people a sense that somebody cares about them."
One of the main challenges case managers have faced is reestablishing lines of communication remotely, especially with clients who have unstable housing and limited access to a phone or computer.
"This was an immediate challenge of working with homeless individuals without phones," said Rempel of Center for Court Innovation. "We had to be able to communicate with them remotely."
Rempel, Fox, and Richards all said their organizations purchased phones and devised ways to distribute them safely without risking exposure to the virus, either through drop-offs or contacts in the community.
Many of the service providers Gotham Gazette spoke with believe the coronavirus crisis may have helped secure the supervised release initiative, as officials seek alternatives to crowded jails and as well-established channels of communication become essential.
"As the courts start to reenvision how they will be operating in this new normal, supervised release is going to play a pivotal role in working with community-based organizations to make sure that we don't incarcerate people who don't need to be detained," Richards said.