There's a New Way for People Arrested in NYC to Avoid Jail

A 22-year-old black man stands with his hands clasped behind his back as the prosecution reads charges to the judge.

Low-level assault, a class D felony. Recommended bail? $75,000.

It's 6:45 PM on a Saturday evening at Brooklyn Criminal Court, and the audience is comprised mostly of family members—some of whom will wait until one in the morning for their loved ones to be called. In New York City, about 45,500 people are held in jail each year because they can't afford bail. The decision to send defendants home or to the notorious jail complex on Rikers Island—where they would await trial—is made during the few minutes they stand in front of a judge, often after spending about 22 hours in a New York Police Department (NYPD) holding cell.

But as of this month, there's a third option for people charged with misdemeanors and nonviolent felonies in all five boroughs: supervised release.

The judge, visibly tired, rests his forehead in the space between his thumb and index finger as he reviews the young man's file. He gazes into the audience and asks an officer to locate the supervised release court liaison. A few minutes later, Brooklyn Justice Initiatives (BJI) Program Director Jessica Kay comes running in and approaches the bench. She takes the man's case file from a defense attorney and says she has to go upstairs to her office to check on his eligibility.

The city government's interest in shrinking the population at Rikers by assessing the risk of re-offense—rather than a defendant's ability to pay—is part of what bail expert and legal scholar Tim Schnacke of the Center for Legal and Evidence-Based Practices calls "a full-blown bail reform movement."

"Bail reform is the low-hanging fruit of criminal justice reform," he tells me. "We are violating the rights of people across the country every day by doing the things we think are normal to do."

The city has invested $17.8 million in supervised release programs across the five boroughs. The Center for Court Innovation received the largest contract, of $7 million, to expand its pilot program in Brooklyn to the Bronx and Staten Island beginning March 1. The New York Criminal Justice Agency and the Center for Alternative Sentencing and Employment Services received funding to expand similar programs that have been up and running in Queens and Manhattan since 2009 and 2013, respectively. Citywide, Mayor Bill de Blasio's office estimates these programs will be able to supervise around 3,000 people over the course of the year, and will reduce the city's daily jail population—which is about 10,000—by 205 over the next three years.

Another man charged with a traffic violation and driving while intoxicated steps before the judge. The prosecution requests bail be set at $5,000, but again, the defense attorney wants supervised release, pointing out the man has an 11-year-old son and a part-time job. The BJI court liaison interviews the man through a caged window in a tiny room behind a door near where the judge sits, and succeeds in reaching someone from the man's life—a requirement of the program.

The judge sides with the defense, sparing the man a stay on New York's floating jail, known for its slashings and stabbings. Even a week in Rikers without violence can make someone more likely to get arrested once his or her case is over—and have a lasting, negative impact on quality of life.

Eligibility for supervised release in New York is determined by a risk-assessment tool that consists of eight questions, including the defendant's number of felony convictions in the last nine years, prior warrants, and their full-time activity. Supervision can range from weekly to monthly in-person visits and phone calls, depending on the person's risk assessment score.

But even as they cheer the prospect of keeping more people out of jail, some criminal justice reformers worry risk-assessment algorithms might exclude people from the program who need it the most—and fear additional monitoring of already over-policed areas like the Bronx could make things worse.

Robyn Mar, deputy managing director of criminal defense practice at the advocacy group and legal aid provider Bronx Defenders, says the requirements of the program resemble probation. After all, if a defendant on supervised release falls out of touch with the program, either missing an in-person visit or phone call, BJI must notify the court after 48 hours. The judge then decides how to proceed, whether by waiting until the defendant's next court appearance to reassess their bail status—or else issuing an immediate warrant for their arrest.

"Supervised release is a new option for judges to release more people pretrial," Mar says. "At the same time, it adds a whole other level of scrutiny and intrusion into the lives of people who haven't been convicted of anything and are presumed innocent. The vast majority of people already come back voluntarily and shouldn't be subject to pretrial detention or restrictions at all."

Brooklyn and the Bronx both have charitable bail funds, which use donations to bail out misdemeanor defendants facing amounts up to $2,000. About 97 percent of the people bailed out by the Bronx Freedom Fund end up coming to all their court dates with only text message and phone call reminders. But according to Alex Crohn, general counsel at the Mayor's Office of Criminal Justice, the supervised release program is targeted at suspects who need more than just a nudge to return to court.

"In the grand scheme of things, supervised release is a relatively light touch," he tells VICE. "It's not mandatory drug treatment; it's check-ins. For individuals who can be safely supervised in the community, this program is doing a bit more to ensure that people show up for court."

Seventy-two percent of participants in the November 2013 to September 2014 BJI pilot program for misdemeanor cases remained in compliance throughout their court case, according to data analyzed by CCI. Supervised release participants were less likely to receive a misdemeanor criminal conviction compared to those detained pretrial (21 percent vs. 38 percent), and significantly less likely to receive a jail sentence as a result of a conviction (11 percent vs. 34 percent). Participants were generally able to maintain what BJI calls "pro-social" ties to family, employment and housing while they fought their cases—which may have contributed to better outcomes.

"It's make or break for a lot of people," argues BJI Deputy Project Director Jonathan Monsalve.

Kay hopes supervised release will help defendants perceive the judicial process as a fair one and create a space inside the courthouse where they and their families can go for help.

"Blue doors," she says. "Do you know what we had to do to get blue doors?"

Onerous supervision remains a stumbling block as the program goes into wider practice, but most experts are cautiously optimistic at a tangible sign of change in New York's criminal justice system.

"We run the risk of making everything worse, but I'm not sure it could get much worse than the money bail system we have in place right now," explains Schancke, the legal scholar.

At just after 6:50 PM, the judge sees Kay rush in the courtroom door, shaking her head and making a "cut" motion with her hand. It's a signal that the young man does not qualify for supervised release because the program excludes all violent felonies, no matter how low-level.

The judge looks at the young man's criminal history and decides to let him go anyway—so long as he promises to meet with his attorney on Monday.

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