Empire State of Incarceration

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For decades, the story of jail incarceration in New York was considered a big city problem.
The Tombs.
The Boat.
Rikers Island.
Yet today, New York City’s jail numbers have dropped by more than half, while jails in the rest of the state have grown.
Three out of five New Yorkers in jail on any given day are held in facilities in the 57 counties outside New York City.
The trend is clear: New York City is no longer the driver of jail incarceration in our state.

Empire State of Incarceration

New York is in the midst of considering important criminal justice reforms – including bail, due process, and speedy trial – to reduce the overuse of jail.

We’re at a moment of growing consensus that incarceration should be a last resort, and not the default option, in our criminal justice system. Understanding the extent of the problem and exploring solutions is critical to enacting reforms that will succeed.

Before we begin, here’s a quick overview of bail, due process, and speedy trial.

Drivers of jail

Who is in jail and why?

An arrest is the first step in any criminal case. But not every New Yorker who is arrested ends up in jail. What happens after an arrest depends on many factors, but one plays an outsized role: where in the state someone is arrested.

It’s not quite as simple as whether the arrest happens in Nassau County or Cattaraugus County. Even within a single county, an arrest for the same offense in an urban versus suburban or rural area could result in a different case outcome. 

Where you’re arrested matters. What happens is different based on where you are.

Compare the potentially different outcomes of the same misdemeanor arrest in Erie County—in Buffalo, the county seat, versus Hamburg, a village thirteen miles away.


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Several drivers impact whether or not an arrest ends up in jail.

Level of charges

Two-thirds of all arrests in New York are for misdemeanor charges—only one-third are for felonies. What happens with a low-level, misdemeanor case depends heavily on where the arrest occurs. In some parts of the state, people arrested for low-level offenses frequently have bail set or are convicted and sentenced to jail time. 

Under New York law, charges range in severity from violations to misdemeanors to felonies. Violations are non-criminal dispositions under the law, and a conviction to a violation-level charge does not result in a permanent criminal record. Typical violation offenses include disorderly conduct and driving while impaired. Misdemeanors are criminal dispositions that carry a maximum penalty of a year in jail. A conviction to a misdemeanor does result in a permanent criminal record, although not all misdemeanors receive a sentence of jail. Felonies are criminal dispositions that carry a range of sanctions—from a conditional discharge to probation to prison. The eligible sanction for a felony conviction is determined by state law, and prison time is mandatory for certain felonies.

Why people are in jail varies depending on where you are.

In Clinton County, for example, nine out of 10 people in jail are there on misdemeanor charges.

In New York City, by contrast, only one out of 10 people in jail are there on misdemeanor charges even though misdemeanors make up two-thirds of all arrests in the city.

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Across New York, the percentage of the total jail population held on misdemeanor charges varies by county, from as low as 6 percent in some counties to as high as 89 percent in others.

Type of courts

All arraignments occur in either city, district, or justice courts. City and district courts are part of the statewide court system and are staffed with a judge, lawyers, and other resources like pretrial services. There are 61 city courts and two district courts across the state. Justice courts, made up of 1,200 town and village courts, are locally managed by a town or village. Justice courts handle all arraignments of arrests within that town or village, and locally-elected justices preside over the hearings and make bail decisions. The arrest-to-arraignment process between the city, district, and justice courts often follow a very different path. 

In city and district courts, cases are referred by the police to the local district attorney’s office within hours after an arrest. An assistant district attorney investigates and speaks with victims and witnesses before formal charges are written up in a criminal complaint. The person arrested is assigned a lawyer, who will meet with the client, discuss the case, and prepare a bail argument for the judge at arraignment. An assistant district attorney, a defense lawyer, and a judge are present at arraignment in city and district court. In some city courts—such as in New York City—many cases are resolved with a plea or dismissal at arraignment. That quick resolution to a case can only happen when an assistant district attorney is available to conference a case and if a defense lawyer is present to argue for an immediate disposition. For cases that are not resolved at arraignment in city courts, judges may have the option to release a person “under supervision” to pretrial services. This can occur when a judge isn’t willing to release the person on his or her own recognizance, but will consider an alternative to setting bail. In Nassau and Suffolk, arraignment occurs in district court, which has similar resources and follows the same arrest-to-arraignment process as city court. 

These resources and alternatives are often unavailable in town and village courts. Following an arrest in a town or village, the arresting officer will call an assistant district attorney for a bail recommendation, and will alert the justice on call, as well as the defense lawyer, if one is available. The justice will arrive and conduct the arraignment, either in the local courtroom or at another location if the courtroom is unavailable or too far away. At arraignment, no formal charges have been investigated by the district attorney’s office, and no information is conveyed to the justice other than from the arresting officer and, if one is present, the defense attorney.

Under New York law, the justices elected to serve in the town and village courts are not required to be lawyers, and approximately two-thirds are not. Funded by their localities, the town and village courts are not staffed by the New York State Office of Court Administration and are not under the jurisdiction of the statewide court system. Some town and village courts have their own courthouses and have at least two or three justices. These well-resourced town and village courts meet at least weekly, holding regularly scheduled calendar appearances to manage their dockets and caseloads. However, other town and village courts operate with less regularity. Court is convened when an arrest happens, or once every few weeks when a scheduled matter is on the calendar. These town and village courts are often far away from the local jail where people are detained pretrial while their cases are pending.

Mark Williams, former justice and current public defender of Cattaraugus County

In towns and villages, especially in rural areas where the nearest court may be miles away, traveling to the courthouse for an arraignment is inconvenient when late at night or in bad weather. In those circumstances, arraignments are sometimes held at a justice's home, an in-between location, or even in a police car.

Legal representation

Having defense counsel present at arraignments can make the difference between whether or not bail is set and, if it is, whether it’s at an amount the person or his or her family can afford. Despite the constitutional right to a lawyer in criminal proceedings, many New Yorkers arrested in suburban and rural parts of the state do not have an attorney at arraignment. This is especially true in town and village courts. 

At arraignment, defense counsel makes arguments on the client’s behalf for release on recognizance and conveys critical information to the judge or district attorney about the client and the case. Across New York, reform is underway to make good on the constitutional right to representation. The Hurrell-Harring vs. State of New York case, settled in 2014, spurred the creation of the Counsel at First Appearance program and resulted in five counties that were the subject of the lawsuit—Onondaga, Ontario, Schuyler, Suffolk, and Washington—providing counsel at every arraignment. CAFA is also being implemented or expanded in an additional thirty suburban and rural counties to ensure that people arrested have a court-appointed lawyer if they cannot afford one. With grants from the New York State Office of Indigent Legal Services, these counties are in various stages of launching or expanding access to counsel. Some counties are able to provide a lawyer at every arraignment, while others cannot, and within a county access to counsel may vary depending on the court. Additionally, some counties that do not have CAFA still provide counsel at arraignment. A law was also passed in 2016 creating centralized arraignment court parts in a handful of counties so that, at first appearance, people have access to a lawyer. In October 2017, the Office of Court Administration piloted a centralized arraignment court part in Broome, Oneida, Washington, and Onondaga counties. Money has been allocated in the state budget to require full counsel at every first appearance across the state by 2023.

Despite the constitutional right...many New Yorkers arrested in suburban and rural areas do not have an attorney at arraignment.

Use of bail

Courts in some counties set bail relatively infrequently, especially on low-level charges. The vast majority of cases that come through New York City courts are either resolved with a disposition at arraignment or, if the case continues past the first court appearance, released on recognizance or released under supervision. In other counties, however, such as Chautauqua, a very high number of people are held pretrial in jail compared to overall arrests.

The percentage of people held pretrial varies based on where you are.

New York City has a population of 8.5 million, compared to slightly over 130,000 in Chautauqua County.

On any given day in New York City, approximately 7,500 people are held pretrial out of the more than 250,000 arrests made annually.

In Chautauqua County, in contrast, close to 200 people are held in jail pretrial on any given day, despite the fewer than 3,500 arrests in the county annually.

Overall, across New York, people held pretrial make up 67 percent of the average daily population in jail. That number is 77 percent in New York City, but is 50 percent or below in some parts of the state.

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There is tremendous variation across New York in both how often bail is set and in what amounts. There are nine forms of bail available to the courts, although in practice only cash bail and insurance company bail bonds are typically used. Many counties also offer pretrial services programs as an alternative to bail. 

Under current New York law, bail can be set in nine different forms, including bonds where no deposit of money has to be paid up front, called an unsecured bond, or where a deposit of 10 percent or less of the full amount is paid up front, called a partially secured bond. Judges can also order bail to be paid by credit card, which is easier for many people to afford than paying full cash bail or obtaining a bond from a bail bond company. Yet judges and justices rarely use these forms of bail, instead opting to set cash bail or an insurance company bail bond, which are the most onerous forms for people to make. 

In most counties, pretrial services are offered that provide an alternative to bail. Often called “release under supervision,” “pretrial release,” or “supervised release,” these programs are available primarily in city courts to offer judges a middle option between release on recognizance and setting bail. Many larger courts, such as in the city of Rochester, in Monroe County, or in New York City, have robust pretrial services programs operated by nonprofit organizations. In many smaller and more rural counties, the local probation department may run a pretrial services program called “release under supervision,” or RUS. In 26 counties and New York City, RUS programs are available in arraignments, so that judges can assign someone to pretrial supervision without having to set bail. In 24 other counties, the probation department conducts assessment interviews of potential participants only in the jail after bail has been set, and waits until the first court date after arraignment to accept someone into the program. Seven counties currently have no pretrial services available.

County by county, bail amounts on misdemeanor and felony charges vary tremendously.

Seven in 10 people held on misdemeanors in Monroe County  have bail set at $1,000 or less, compared to one in 10 in Chautauqua County.

That variation in bail holds for more serious offenses. In Monroe County, four in 10 people held on felony charges have bail set at $10,000 or higher, compared to eight in 10 in Chautauqua County.

Source: Vera Institute of Justice analysis of bail amounts reported in a one-day snapshot by the local departments of correction in New York City, and Monroe, Chautauqua, and Onondaga Counties.

Brendan Cox, retired police chief and current director at the National Law Enforcement Assisted Diversion Bureau

In town and village courts, and even in some city courts, police officers contact an on-call assistant district attorney after an arrest to determine the prosecutor's bail request. The police officer conveys that request to the judge or justice presiding over arraignment. The conversation between a police officer and the court at arraignment can have a significant impact on the bail decision in a case.

Speedy trial

The right to a speedy trial is another principle enshrined in the Constitution, but in New York the speedy trial law is really a rule of “readiness for trial.” Under the law, misdemeanors are required to be resolved within 90 days and felonies within 180 days. Yet many cases pend in court for much longer. Under the law, any time prosecutors state they are “ready” for trial, the speedy trial clock stops and the time in between the statement of readiness and the next court appearance is excluded from the speedy trial calculation. 

Many reasons exist for why time is excludable under New York’s speedy trial law, Criminal Procedure Law §30.30. These include court delays, unavailability of defense counsel, and requests for “good cause” adjournments by the prosecutor. These delays result in cases lasting well over 90 days for misdemeanors or 180 days for felonies. In New York City, for example, the average misdemeanor case that goes to trial is more than two years old. Kalief’s Law, named after Kalief Browder, a 16-year-old arrested in the Bronx and held at Rikers Island for three years pending trial until his case was dismissed, passed the New York State Assembly in 2017, but did not make it through the Senate. The bill was introduced to fix the “readiness” loophole that allows cases to last for many months longer than the time allotted under the speedy trial law.

Across the state, average lengths of stay in jail vary greatly.

The average length of stay in jail is 13 days in Herkimer County and 61 days in Westchester County. Many of the bigger courts across the state, in New York City, and in Nassau, Suffolk, and Westchester Counties, experience the biggest delays because of court congestion.

Valdez Heron, organizer at the Katal Center for Health, Equity, and Justice

For people held in jail pretrial, speedy trial practices impact their length of stay. In some larger jurisdictions, adjournments of four to six weeks between court dates contribute to long lengths of stay in jail. In some rural counties, long lengths of stay may be the result of infrequent court calendars, where court is in session only once or twice a month.

Severity of punishment

Severity is also reflected in felony sentencing and prison sentences. Some counties send many more people to prison on felony sentences than others. For example, Monroe County, with a population of approximately 750,000, has more than 3,000 people serving sentences in state prison, while Westchester County, which has a population of close to 1 million, has less than half that number.

Nationally, upwards of 95 percent of cases are resolved by plea bargain or before trial. New York follows this trend. Cases that do not go to trial are resolved in one of three main ways: by a dismissal, an adjournment in contemplation of dismissal (ACD), or a conviction. A dismissal may happen at any point while a case is pending, including if a case exceeds the bounds set out under the speedy trial law. An ACD is a dismissal after a period of time, either six months or, in the case of an ACD for marijuana possession, 12 months. A conviction can include a non-criminal disposition, such as a conviction to a violation, or to a criminal disposition, such as a misdemeanor or felony. 

Sentences under New York law range from a conditional discharge, where a person may be required to complete a condition of the sentence, such as community service; to a fine; probation; or a custodial sentence including jail or prison time.

Across the state, dispositions and sentencing vary greatly.

More than three-quarters of felonies result in convictions in Schenectady versus 53 percent in the Bronx.

Almost one in five felony cases results in a prison sentence in Schenectady, while less than one in 10 do in the Bronx.

Some counties send many more people to prison on felony sentences than others.

Data clearinghouse

Exploring metrics of criminal justice

The drivers of jail vary across the 62 counties of New York State. Use the data clearinghouse to look at what is driving your local county’s criminal justice trends. It includes data from the New York State Division of Criminal Justice Services, the Bureau of Justice Statistics’ Annual Census of Jails, and other sources. Take a deep dive into your county, compare counties side-by-side, and to the state as a whole. 

Data deep dive

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Arrests
Incarceration
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Statewide metrics

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County-level factsheets

These county-level factsheets include quick facts about a county’s overall population, demographics, and key criminal justice statistics.

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Solutions

Correcting the overuse of jail

The drivers of jail are the result of local-level policies and practices decided on by elected officials, police and sheriffs, judges, prosecutors, defense attorneys and, importantly, the public. Some of these decisions have resulted in the growth of jail in some parts of the state, while others have deliberately reduced the number of people in jail.

What can we do to shift these trends 
towards ending the overuse of jail across 
all of New York?

Promoting due process at arraignment

The decision at arraignment about pretrial detention or release has been shown to impact the outcomes of some cases, including whether a person is sentenced to incarceration and the length of that sentence. For that reason, arraignments must be conducted by judges trained in the law; those accused of crimes must have the benefit of a lawyer; and resources such as pretrial services should be available in order to offer a meaningful alternative to bail. 

The centralized arraignment court parts are a promising start, where counties can guarantee that at least one courthouse will have counsel, judges, prosecutors, and pretrial services available under one roof. While a centralized arraignment court part may mean a greater distance to travel if an arrest occurs in one part of the county and the arraignment court part is in another, that inconvenience is worth the guarantee of a meaningful, robust, and constitutional first appearance in court.

Because bail decisions impact the outcome of a case, arraignments must be conducted by judges trained in the law and those accused must have the benefit of a lawyer.

Reforming bail

Even without any changes to New York’s bail statute, much more can be done to ensure that someone’s wealth doesn’t determine pretrial liberty, including alternatives to bail and greater use of the nine forms of bail available under the law. Pretrial services programs should be set up in all courts in the state, including town and village courts, so that more people have the benefit of being released under supervision instead of having bail set. These pretrial programs should also be expanded to include appropriate serious cases—including felonies designated as violent, which are traditionally excluded from eligibility for pretrial release. 

While ultimately New York should eliminate the use of money bail, in the interim the courts should make full use of the nine available forms of bail, especially partially secured and unsecured bonds, so that it is easier for people to afford bail when it is set. Courts should require that a partially secured bond alternative is automatically available as an option for bail payment whenever bail in the form of an insurance company bail bond is imposed. When bail is set, the courts should inquire into and consider a person’s ability to pay when determining the amount.

...much more can be done to ensure that someone’s wealth doesn’t determine pretrial liberty...

Allowing for discretion in sentencing

Prosecutors and judges should be given meaningful alternatives to seeking jail and prison sentences, even in serious cases. State legislators should pass reforms to state sentencing guidelines to eliminate mandatory minimums on felony convictions and allow prosecutors and judges to consider offering non-custodial sentences where appropriate. More alternative to incarceration programs should be funded across the state to ensure that incarceration is used as a last resort, and not the default option. 

The Independent Commission on New York City Criminal Justice and Incarceration Reform, chaired by the Honorable Jonathan Lippman, the former chief judge of the New York Court of Appeals, issued a report in April 2017 that recommended removing sentencing minimums requiring mandatory prison time so that judges have discretion to sentence someone to a non-custodial sentence in appropriate cases.

Incarceration should be used as a last resort, and not the default option.

Examples of solutions across the state

There are places across New York State that have resisted the trend of jail growth or have dramatically reduced the number of people in jail.

Madison County

For decades, Madison County has maintained a jail incarceration rate much lower than the statewide average.

New York City

In two decades, New York City has cut its jail population by over half from a high of 20,000 in jail on a given day.

Madison County

Volunteers started the Madison County Bail Fund to post unsecured bonds for people who could not afford bail.

New York City

New York City reduced its jail population by increasing release on recognizance and investing in alternatives to jail.

Madison County

The Bail Fund operated in partnership with local judges, the sheriff, and county jail and probation administrators.

New York City

New York City is planning to close Rikers Island and create a new, smaller jail system of borough-based facilities.

Imagining a smaller jail in your county

Places like Madison County and New York City have a jail incarceration rate well below the statewide average in New York. All counties across the state, regardless of size, location, or resources, can take steps to both reduce the use of jail and increase public safety. 

Imagine what the size of your jail could be if you had the same jail incarceration rate as another New York county:

In there are people in jail.
If it had the same incarceration rate as , there would be people in jail.