Day Custody Program Yr 2 Execsum 08

CJA

NEW YORK CITY CRIMINAL JUSTICE AGENCY, INC.

Jerome E. McElroy Executive Director

THE DAY CUSTODY PROGRAM: SECOND YEAR REPORT EXECUTIVE SUMMARY

Project Director Freda F. Solomon, Ph.D. Senior Research Fellow

September 2008

52 Duane Street, New York, NY 10007

(646) 213-2500

THE DAY CUSTODY PROGRAM: SECOND YEAR REPORT EXECUTIVE SUMMARY

Project Director Freda F. Solomon, Ph.D. Senior Research Fellow Project Co-Director Elyse J. Revere Research Analyst Project Programmer: Geraldine Staehs-Goirn Information Systems’ Department Programmer/Analyst

Project Staff: Steve Mardenfeld Senior Research Assistant Raymond Caligiure Graphics and Production Specialist Annie Su Administrative Associate

The full text of this report is available on the Agency web site, www.nycja.org

September 2008 © 2008 NYC Criminal Justice Agency, Inc.

THE DAY CUSTODY PROGRAM: SECOND YEAR REPORT EXECUTIVE SUMMARY The Day Custody Program (DCP) is a project of the Center for Alternative Sentencing and Employment Services (CASES), created in partnership with the New York City Department of Correction (DOC). DCP is designed as an alternative sentencing option for defendants in non-Spotlight targeted misdemeanor cases at the downtown Manhattan Criminal Court location, disposed at arraignment with an expected jail sentence greater than time served.

The program consists of an accountability component comparable to community service, needs assessment and early intervention programs, and discharge planning including referrals to community-based programs. These activities are provided in eight-hour daily sessions over three weekdays at a DOC facility adjacent to the downtown Manhattan courthouse. Defendants sentenced to the program have ten weekdays in which to complete the three program days’ activities. However, unlike a traditional jail sentence, defendants are released at the end of each program day and must return of their own volition on subsequent days.

DCP is a selective program requiring that cases and defendants meet a variety of criteria. Program eligibility requirements include that defendants have at least three prior misdemeanor convictions, and further requires consent to the program sentence by other court personnel including defense and prosecuting attorneys, judges, and the defendant him/herself. The program’s eligibility criteria exclude Spotlight-designated cases, a criminal justice program targeting a specific subgroup of active recidivist defendants in misdemeanor prosecuted cases. However, Spotlight cases may receive a DCP sentence if an application for program consideration is made by other court personnel, or in instances in which the cases appear otherwise eligible because court papers are not properly marked.

Depending on the day and time of week at which the sentence is imposed, some defendants commence their first program day immediately after sentencing while others need to begin program activities on another day. A court compliance date is scheduled fifteen days after sentencing at which time CASES reports on whether or not the defendant successfully completed the program. The DCP sentence is entered as an intermittent sentence of imprisonment with a jail sentence, usually of ten days, to be imposed for program failure.

Between October 1, 2007 and September 30, 2008, the second full program year, CASES staff screened the court papers in a total of 3,751 cases of which 496 cases (13.2%) received a DCP sentence. The remainder of the cases were rejected from program participation either by CASES staff based on eligibility criteria, or by other court participants—defense or prosecuting attorneys, judges, or defendants themselves.

Consistent with the previous year’s experience, the second year report on CASES’ Day Custody Program found that when a DCP sentence was imposed an overwhelming majority of defendants in the cases satisfactorily completed the program. In addition, appropriate penalties were imposed in cases of defendants who failed to successfully complete the program and were returned to court.

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Rejected cases were examined and there were overall differences found in the charge and severity composition between rejected cases convicted at arraignment and program-sentenced cases. These findings strongly suggested that sentenced cases would more likely have had jail sentences imposed, and of longer duration, than the rejected cases (excluding those Spotlight designated). The study also found that the Spotlight restriction was the largest source of program rejections, and sentencing practices at arraignment in the downtown Manhattan Criminal Court appear to affect the size of the program by restricting the number of defendants in non-Spotlight cases facing post-conviction jail time.

In a preliminary examination of re-arrests of program-sentenced cases and defendants, the study found a lower rate of, and longer time to, prosecuted re-arrests among successful program completers, but if re-arrested virtually no differences in the frequency of new prosecuted arrests, in comparison with the unsuccessful program defendants. However, because of the substantial differences in characteristics and numbers of cases and defendants between successful and unsuccessful program clients, no inferences about a program affect on recidivism could be drawn from this examination.

To systematically analyze whether the program had any apparent impact on recidivism, comparison groups of cases from a pre-program period sharing similar charge, defendant, and criminal history characteristics, were used. These pre-program cases were from calendar year 2004, prosecuted at the downtown Manhattan Criminal Court, with jail sentences greater than time served imposed for arraignment convictions.

Re-arrest patterns—prevalence of re-arrests, mean and median time to first rearrests, and mean and median numbers of re-arrests—were compared among the preprogram cases and defendants, with their DCP-sentenced counterparts, for all programsentenced cases and by program-eligibility categories: cases meeting the program’s eligibility criteria; Spotlight cases; and non-Spotlight cases in which defendants did not meet the prior conviction requirements. However, because there were so few cases of defendants with insufficient prior convictions, no meaningful comparison could be made for this category.

The analysis indicated that there were few if any differences in patterns of recidivism for defendants in the first year’s program-sentenced cases in comparison with those in the pre-program period, and some greater variations for defendants in the second year’s program-sentenced cases.

Recidivism patterns also were examined using matched pre-program comparison groups with shared demographic, criminal history and charge characteristics with those of successful DCP clients in the program eligible and Spotlight categories in each program year. This analysis was undertaken to determine if successful program completion had any apparent affect on the indicators of recidivism. Tests of statistical significance were used, as appropriate, to determine if differences found were likely to have occurred as a result of a program affect or by chance.

This research found little if any differences among first-year successful program clients and their counterparts in the matched comparison groups, and when differences were found none were statistically significant. In the second program year there were

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somewhat greater differences found with the pre-program matched groups, with lower re-arrest rates and longer average times to first re-arrests, in both the eligible and Spotlight categories. However, the differences were statistically significant only among second-year cases of defendants fitting the program’s eligible category. In addition, among re-arrested successful program clients no measurable differences were found in average numbers of re-arrests in either category.

KEY FINDINGS FROM THE STUDY There were 496 program-sentenced cases involving 485 defendants: 11 defendants each received a DCP sentence twice in the program’s first year. ► CASES’ selection criteria were met in over 60% of the program-sentenced cases, and in only a tiny percentage of the cases were there defendants with insufficient numbers of prior misdemeanor convictions. ► Over a third of the program-sentenced cases were Spotlight targeted, although they represented only a very small percentage of all Spotlight cases in the same time period. ► Defendants in program-sentenced cases were mostly male, non-Hispanic Black, and 35-years-of-age or older. Over 89% had more than the requisite three prior misdemeanor convictions, and over two-thirds also had previously been convicted for a crime of felony severity. Defendants in the program-sentenced cases were overwhelmingly rated by CJA as poor risks for recognizance release if the cases were continued past the arraignment appearance. These characteristics of secondyear program-sentenced defendants were very similar to those of first-year program defendants. ► In the second program year’s cases, only a quarter of the defendants reported being employed, in school, and/or in a training program on a full-time basis. This was lower than the 35.6% of defendants reporting full-time activity in the first program year’s cases. There also was a smaller percentage of defendants in second year cases indicating that they expected someone at their arraignment, although a larger percentage of defendants in these cases reported living with others in comparison with those in the first program year. ► At arrest over a third of the DCP-sentenced cases had a drug top arrest charge and another third a property-crime charge (mostly petit larceny) as the top charge.

Most of the remaining cases had top arrest charges involving fraud crimes such as fare evasion or forgery, or public disorder offenses such as criminal trespass. ► At arraignment the largest percentage of cases had a property-crime charge, and this category was more than ten percentage points greater than cases prosecuted for a drug crime. This change is important because almost all convictions in DCPsentenced cases were to the arraignment charge and crimes such as petit larceny tend to have a greater likelihood of jail time, and comparatively more of it, than almost all other types of misdemeanor charges. In addition, 92.3% of the DCPsentenced cases had a conviction to a charge of A-misdemeanor severity. ► Defendants in over 79.4% of all of the second-year DCP-sentenced cases successfully completed the program requirements, slightly lower than the 81.2%

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successful completion rate in the first program year. Among program-eligible cases the successful completion rate was 84.4%; it was lower (71.1%) in cases identified by CJA from DCJS-provided files as having been Spotlight designated.

For the first time, the annual DCP report examined whether time to intake affected successful completion rates. ► The research found that defendants in 30.7% of successful DCP-sentenced cases began the program on the day of sentencing, 44.2% began the program on the first day after sentencing, with the remainder beginning the program sometime thereafter. ► Among DCP-sentenced cases of defendants who began but did not successfully complete the program, 42.0% started the program on the day of sentencing. ► When successful and unsuccessful cases are viewed separately, the data appear to suggest that for those who at least start the program, success does not depend on whether or not program intake commences immediately after sentencing. ► If one considers the success rate among all cases in which defendants begin the program on the day of sentencing, in comparison with those scheduled to start at a later date (including those who never appeared) a somewhat different perspective appears. Among the cases in which defendants began the program on the sentence day 85.0% successfully completed the program. There was a lower, 76.8%, successful completion rate in the cases of defendants scheduled to begin the program on another day.

The second year program report also examined more closely the alternative jail sentence lengths imposed for program failure. In the program planning it was expected that judges would set a 10-day jail alternative sentence for program failure. ► The analysis showed that 10-day jail sentences for program failure were set in a substantial majority of DCP cases, but the exact percentage, and reasons for selecting longer jail alternative lengths, are unclear. ► The research found that there remain problems with the alternative sentence lengths recorded in the court’s computerized information system. This can have consequences for defendants in unsuccessful cases, and for effectively monitoring re-sentencing, when defendants are returned to court for program failure.

There were 102 cases in which defendants were reported to the court as having not successfully completed the program’s requirements. In 50 cases defendants did not complete the program and in 52 cases defendants failed to appear at all. ► As of May 30, 2008, 87 of the 102 cases (85.3%) had been re-sentenced for the program failure, almost all having been returned after a new arrest. The data suggest that defendants were held accountable for program failure when returned to court and in almost all instances defendants were re-sentenced to a jail term for program failure. ► In approximately three-quarters of the re-sentenced cases jail sentences of at least 10 days were imposed, with over half of the cases receiving a 10-day jail sentence, and the other quarter a sentence less than 10 days.

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► Because re-sentencing frequently occurred in conjunction with a new case it was not possible to precisely determine the exact consequence for program failure in every case.

There were 3,115 cases involving 2,665 defendants screened but not program sentenced. ► The demographic and criminal history characteristics of defendants in rejected cases closely resembled those in program-sentenced cases, and were fairly consistent regardless of the source or reason for rejection, although percentages among categories varied. These findings also were very similar with those for the first-year’s rejected cases. ► Over 60% of all rejections were made by CASES staff, with defense attorneys (21.4%) and judges (7.2%) being the second and third largest source of rejections overall. ► A majority of DCP staff rejections were because of a Spotlight designation (61.5%), with homeless/insufficient community ties (12.8%) the second most frequent reason given by DCP staff for rejection. ► Slightly over two-thirds of all rejected cases were disposed at Criminal Court arraignment, almost all by conviction, and in over four-fifths of these cases some form of jail sentence was imposed. However, in almost two thirds of these cases the jail sentence imposed was for less than 10 days including those with time-served sentences. (Comparatively longer sentences were imposed in Spotlight and judge rejected cases.) ► There were some variations in charge characteristics between program-rejected and program-sentenced cases both at arrest, and in the cases with arraignment convictions. However, because there were so many similarities in the defendant characteristics and case composition between program-sentenced and rejected cases, it was not possible from these data to provide guidance to CASES in ways to either change its targeting criteria or court-screening procedures.

An initial examination of re-arrests compared cases of successful and of unsuccessful program-sentenced defendants within five months of the compliance date, overall and by program-eligibility status in the sentenced case (eligible, insufficient priors, and Spotlight designation). However, because the characteristics of successful and unsuccessful defendants and cases are too dissimilar, these comparisons cannot be used to determine whether the program affects recidivism, a subject addressed in later sections. ► Overall, 52.7% of all DCP-sentenced defendants had a new prosecuted arrest within five months of their compliance date. The re-arrest was 47.7% among program-eligible defendants and 61.4% among DCP-sentenced defendants in Spotlight-targeted arrests. For the handful of cases in which defendants had insufficient priors the re-arrest rate was 50%. ► The re-arrest rate within five months of the compliance date was 49.1% among successful program completers: 45.1% among successful program completers who met the program’s eligibility requirements and 57.6% for successful program clients

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in Spotlight-targeted cases. Among defendants who did not successfully complete the program 66.7% had a prosecuted re-arrest within five months: 61.7% for those who met the eligibility requirements and 70.6% for unsuccessful program clients in Spotlight-targeted cases. There were too few defendants with insufficient community ties in the second program year for any meaningful separate comparisons to be made for this category of cases. ► Among re-arrested defendants the average time to a first new prosecuted arrest was longer for successful program completers, 54.79 days, with a median (midpoint) of 43.5 days. The average time to a new prosecuted re-arrest was 36.09 days among unsuccessful program clients, with a median of 24.5 days. ► The examination of recidivism also found that if re-arrested there was no difference in the average number of prosecuted re-arrests within the five-month interval between the defendants in the successful and unsuccessful completion groups.

CASES makes no representation that DCP will affect recidivism, and the research design for the first year study did not include a provision for examining this issue in a methodologically precise way. However, because of interest in this issue the secondyear report examined recidivism patterns between DCP-sentenced cases and defendants in each program year in comparison with pre-program cases and defendants sharing similar characteristics.

The comparison group cases were from calendar year 2004, in which defendants had prior criminal convictions, were arraigned on misdemeanor charges in the downtown Manhattan Criminal Court, and had arraignment convictions and sentences imposed greater than time served. The pre-program cases were categorized based on program-equivalent eligibility categories—eligible, Spotlight, and cases of defendants with insufficient misdemeanor convictions to meet the program’s criteria.

In the first section of the recidivism analysis the pre-program cases were used to determine a baseline of re-arrests for the pre-program cases within five months of jail release. These were then compared with re-arrest patterns of defendants in DCPsentenced cases within five months of the program compliance date, overall and within program-eligibility categories. ► Among the pre-program cases there was a 63% overall re-arrest rate. The rearrest rate among defendants in cases meeting the program’s eligibility requirements was 55.0% and in pre-program period Spotlight-targeted cases was 73.0%. ► The re-arrest rates in the first program year among DCP-sentenced cases were almost identical with those from the pre-program baseline period. The re-arrest rates were lower among all second-year program-sentenced cases, and for both the eligible and Spotlight cases’ categories. ► The average time to a first new prosecuted arrest was only slightly longer among defendants in first-year sentenced cases than among the pre-program cases, overall and within program eligibility categories. Longer mean and median times to first rearrests were found among defendants in the second-year’s program sentenced cases.

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► There were only fractional differences in the mean number of re-arrests, and the median number of re-arrests in the five-month interval was identical overall, and for both the eligible and Spotlight cases’ categories, among the pre-program and first and second program year sentenced cases.

To determine whether any of the differences found reflected a program impact on defendants with successful program completion, matched comparison groups were created from the pre-program data using a selection of demographic, criminal history and charge characteristics. Differences in prevalence, time to, and frequency, of rearrests, between the matched groups of cases of pre-program defendants, and first and second year successful program clients, were tested for the program’s eligible and Spotlight categories, as appropriate, using measures of statistical significance. There were too few cases of defendants with insufficient prior convictions to make comparisons meaningful. ► In the first program year there were almost identical re-arrest rates between the matched groups of pre-program and successful first-year defendants in the eligible and Spotlight categories, and there were no statistically significant differences. ► Among second-year program-eligible defendants there was a nine percentage point lower re-arrest rate in comparison with their pre-program counterparts, and this difference was statistically significant. However, the lower re-arrest rate among second-year defendants in Spotlight cases was not statistically significant. ► The only category for which the time to first re-arrest had a statistically significant difference, between the matched comparison groups of pre-program defendants and successful DCP clients, was for the longer average time found among second-year program-eligible defendants. ► No statistically significant differences were found in the mean numbers of rearrests for any category, in either program year, between successful program defendants and their matched comparison group counterparts.