Jail Displacement ATI Programs 02

Research Brief No. 1 NEW YORK CITY CRIMINAL JUSTICE AGENCY, Inc.

December 2002

A series of reports summarizing current research from CJA Executive Director, Jerome E. McElroy Director, Research Dept.

Richard R. Peterson, Ph.D. Research Brief Editor, Mary T. Phillips, Ph.D. Graphics & Production, Raymond Caligiure Administrative Associate, Bernice Linen-Reed CJA is a not-for-profit corporation that provides a variety of criminal justice services under a contract with the City of New York. CJA staff interview defendants arrested in New York City, make recommendations for pretrial release, and notify released defendants of upcoming court dates.

Within the Agency, the Research Department conducts studies covering a broad array of criminal justice policy concerns.

The Research Brief series summarizes the results of some of these studies.

Jail Displacement for ATI Programs

By Mary T. Phillips, Ph.D.

Are ATI programs really alternatives to incarceration? Or do they sanction people who would not have gone to jail anyway?

In New York City, the answer is mixed New York City funds a variety of Alternative-to-Incarceration (ATI) programs for defendants charged with misdemeanor and felony offenses.

One of the primary goals of these programs is to reduce time that many defendants would spend in jail or prison.

Eligible misdemeanor offenders are offered a program of community service instead of jail time.

For felony offenders, there are drug treatment, educational, and vocational training programs that allow them to live in the community under supervision. The idea is to provide a constructive alternative for many defendants who would otherwise receive substantial jail or prison sentences.

Do the ATI programs succeed in meeting this goal? Some critics argue that they simply “widen the

net.” Instead of serving defendants who were headed for jail — the argument goes — the programs are full of people who would not have had to serve any jail time anyway.

If so, it would mean that for some participants, the programs are not an alternative to incarceration, as intended, but rather provide the courts with a sentence alternative to probation or even outright dismissal.

This brief presents the results of a study designed to find out how eight NYC programs fared in displacing jail or prison time.

The researchers asked: • How much incarcerative time did each program displace, on average, for its clients?

• What factors are associated with greater displacement?

New York City Criminal Justice Agency 52 Duane Street New York, NY 10007 PHONE: 646 213-2500 FAX: 646 213-2650 WEB: www.nycja.org

This Research Brief is adapted from: Estimating Jail Displacement For Alternative-to-Incarceration Programs in New York City

by CJA Senior Research Analyst Mary T. Phillips, Ph.D. (August 2002).

An Executive Summary is also available.

For more detailed information, see the full report on the CJA web site: www.nycja.org/research/research.htm Address comments to the author at mphillips@nycja.org

© 2002 NYC Criminal Justice Agency

Research project staff: Raymond Caligiure, Taehyon Kim, Elizabeth Walton.

Systems programming: Wayne Nehwadowich, Aïda Tejaratchi.

R Reesseeaarrcchh B Brriieeff Background In 1997 the Mayor’s Office of the Criminal Justice Coordinator (OCJC) enlisted CJA’s help in targeting defendants for the ATI programs it funds. In order to maximize the jail displacement benefits of the programs, the City was interested in identifying defendants facing at least a 20-day sentence for misdemeanors and 6 months for felonies.

Until then, the programs had been operating without the benefit of an objective targeting procedure, and each program used its own methods.

Program administrators had to rely on experience and educated guesses to estimate the length of the sentence a defendant was facing.

CJA created a database of persons entering the OCJC-funded ATI programs, and the CJA research staff developed statistical procedures for identifying defendants likely to receive the targeted sentences. The database, which continues to be maintained by CJA, contains program entry and outcome data for every participant. During the first two years, CJA targeted eligible defendants and advocated in court for their release to an appropriate program. Since 1999, the advocacy function has been carried out by each agency independently, but CJA continues to target suitable clients and to provide the programs with lists of defendants meeting the eligibility criteria.

At the time the targeting began, it was still unknown whether the programs were meeting the displacement goals. This could be learned only after the targeting system had been in use for several years, allowing a large enough number of participants to complete the 6-month to one-year programs and to be sentenced. By the Spring of 2000, this condition had been met and research began.

The 8 programs included in the research are listed in the box at right. One program (CSSP) serves only misdemeanor defendants. The others were designed for felony defendants fitting various profiles. Two of the felony programs are for women (DAMAS and Women’s Day Treatment Program, now defunct); two provide treatment for substance abusers (El Rio and FlameTree; in addition, Women’s Day Treatment served female substance abusers); two are for youths (YAP for those under 16 and CEP for 16-to19-year-olds); and the remaining program (Freedom) is a general-purpose program for adults.

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ATI Programs Included in the Research Misdemeanor program: Community Service Sentencing Project (CSSP) of the Center for Alternative Sentencing and Employment Services (CASES) offers 5 to 10 days of community service to repeat misdemeanor offenders (also 15 days at the time of this research).

Felony programs: Court Employment Project (CEP) of CASES offers educational and vocational services to young (16-to-19-year-old) felony offenders.

Freedom Program of the Fortune Society offers educational and vocational services to adult (19 and older) felony offenders.

El Rio Day-Treatment Program of the Osborne Association offers substance abuse treatment to adult felony offenders in Manhattan and the Bronx.

FlameTree Program of the Fortune Society offers substance abuse treatment to adult felony offenders in Manhattan, Brooklyn, and Queens.

Youth Advocacy Project (YAP) of the Center for Community Alternatives offers rehabilitative services to 13-to-15-year-old felony offenders.

DAMAS Program of the Fortune Society offers educational and vocational services to female felony offenders.

Women’s Day Treatment Program of the Project Return Foundation offered outpatient substance abuse treatment to female felony offenders at the time of this research. The program was discontinued early in 2002 after the City significantly reduced its funding.

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R Reesseeaarrcchh B Brriieeff

Methodology The sample included all participants in the 8 ATI programs who exited the program between July 1, 1998, and March 31, 2000. (Cases from the first year of CJA targeting were excluded in order to allow for a shakeout period.) After this exclusion, the data file contained 1,646 misdemeanor cases and 1,014 felony cases. The misdemeanor defendants were all enrolled in the Community Service Sentencing Project (CSSP), and the felony defendants were distributed among the 7 felony programs.

The strategy was to match each ATI program participant with a defendant whose case and demographic characteristics were similar in every way that we could measure — except that the comparison case was not in an OCJC-funded ATI program.

The sentence for the comparison case could then be assumed to be the sentence that the sample defendant would have faced without program intervention. The difference between the two sentences — the one the ATI participant received and the one given the comparison defendant — is the amount of jail time displaced by the program.

For example, if a CSSP participant sentenced to a conditional discharge and 10 days community service were matched with a similar defendant sentenced to 30 days in jail, it would be reasonable to suppose that CSSP had displaced a 30-day sentence for this client.

Likewise, if a felony ATI participant ultimately

sentenced to probation were matched with a similar defendant sentenced to one year, the program would have displaced a one-year jail sentence.

In the calculation of displacement, time off for good behavior was subtracted from the sentence handed down in the comparison case, in order to provide a more realistic estimate of the time the ATI participant would actually have served had he or she not been diverted into a program.

An adjustment was also made for time spent in pretrial detention, since this was time that defendants had already served prior to the program’s intervention, so it could not be displaced. Further adjustments were made for defendants who failed to complete a program successfully and were resentenced to jail. When this happened, the length of the resentence was subtracted from the displacement effect.

Because of the adjustments for good behavior time and pretrial detention, “displacement” is always less than the actual length of the sentence displaced. For example, the maximum amount of time that can be displaced for a 20-day sentence is 11 days, after subtracting 7 days off for good behavior and 2 days minimum pretrial detention.

Likewise, the maximum displacement for a 6month sentence is 120 days, counting 2 months off for good behavior and 2 days pretrial detention.

Thus, the target goals for displacement were 11 days for CSSP and 120 days for the felony programs.

The Findings: The Misdemeanor Program CSSP was quite effective in displacing jail time for program participants who completed their community service successfully. The program displaced an average of 14 days in jail for each successful participant — well over the target of 11 days (the equivalent of a 20-day sentence).

However, a large minority (19%) of participants did not complete CSSP’s requirements, and it was program policy to request that the courts punish failure with stiff sentences. Displacement for this group was a negative number (-27 days), which means that they ended up serving more time in jail than they would have if they had never entered the program.

The program failures brought the overall average down to two days displacement per client.

Research Brief #1

Average Number of Jail Days Per Client Displaced by the Misdemeanor Program (CSSP)

Days 16

14 8 0

Target = 11 days Not Successful

Successful

2 All Cases

-8 -16 -24

-27

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R Reesseeaarrcchh B Brriieeff The Findings: The Misdemeanor Program (continued) Successful program completion was by far the most important factor determining the amount of displacement. All the same, successful completion did not guarantee displacement. Nor did failure in the program guarantee that there would be no displacement.

As shown in the pie charts below, CSSP displaced some jail time for over half (53%) of its successful participants — leaving 47% with no displacement in spite of success in the program. This

could be the result of CSSP’s accepting some clients who were not facing a jail sentence.

On the other hand, jail time was displaced for almost a quarter (22%) of the unsuccessful participants in spite of their failure to fulfill program requirements. This suggests that for a minority, the resentence after program failure did not measure up to the threatened punishment.

Overall, CSSP achieved displacement for 45% of its clientele.

Percentage of Program Participants for Whom Jail Was Displaced Misdemeanor Program(CSSP) Successful Program Completers

Displacement 53%

No Displacement 47%

Not Successful

Displacement 22%

No Displacement 77%

All Cases

Displacement 45%

No Displacement 55%

What Other Factors Were Associated With Greater Displacement?

Other factors besides successful program Misdemeanor Program (CSSP) completion also affected the amount of displaceAverage Number of Jail Days Displaced ment that CSSP could achieve for a given case.

By Selected Case/Defendant Characteristics More jail time was displaced when the initial Felony arraignment charge was a felony, when the case was not dis0.5 charge: No 32 posed at arraignment, when the defendant had an Yes Disposed at open case, and when the defendant was detained 16 arraignment: No leaving arraignment.

Yes -6 The effect was especially striking for defendants initially charged with a felony. Although 0 Open case: No 20 they constituted a small proportion of the total Yes Detained at (5%), CSSP displaced an average of 32 days for arraignment: No -4 each defendant in this group. This is a reflection 15 Yes of the perception that such cases are more serious than those initially charged as misdemeanors, and -10 0 10 20 30 40 thus these defendants are facing substantially longer jail sentences. The same reasoning applies Defendants facing prosecution on another to cases not disposed at arraignment, which is a open case (59%) avoided 20 days in jail, on avermuch larger group (39% of the total). Displaceage, by participating in CSSP. And defendants ment for this group (which includes the cases that who were detained leaving arraignment (35% of started out as felonies) averaged 16 days. the sample) avoided an average of 15 days in jail.

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R Reesseeaarrcchh B Brriieeff The Findings: The Combined Felony Programs Combined Felony Programs Like the misdemeanor program, the felony programs also had no trouble meeting the displacement goal for their participants who completed the program successfully. The felony programs together displaced about 11 months of incarceration (334 days), on average, for each successful client. This exceeded the goal of 120 days (maximum displacement for a 6-month sentence) by a large margin.

However, it was more difficult for felony defendants to finish a program successfully because of the longer time commitment (6 months to a year). Only 54% managed to do it, compared to 71% of the misdemeanor participants, who could succeed by showing up for 10 or 15 days of community service. No incarceration time was displaced for the unsuccessful program participants.

On the contrary, they spent an average of 139 days longer in jail or prison than they would have with no program intervention. Typically, these defendants were promised probation upon successful program completion; the price of failure was

Average Number of Jail Days Per Client Displaced by the Combined Felony Programs

Days 350 300

334

250 200 150

Target = 120 days

100

116

50 0

Not Successful Successful

All Cases

-50 -100

-139

-150

substantial incarceration.

In spite of the large proportion of failures, however, the overall average displacement still nearly reached the 120-day goal. The average displacement for all cases in the combined felony programs was 116 days.

Percentage of Program Participants for Whom Jail Was Displaced Combined Felony Programs Successful Program Completers

Not Successful

Displacement 53%

No Displacement 47%

Displacement 30%

No Displacement 70%

Over half of the successful felony program participants avoided some incarceration by participating in an ATI program. In fact, the proportion who did — 53% — is exactly the same as for the successful misdemeanor clients. Thus we draw the same inference: that even though program success was very important, it was no guarantee of displacement. The successful completers for whom no time was displaced were apparently not facing a sentence any longer than the one they received along with program participation.

Research Brief #1

All Cases

Displacement 42%

No Displacement 58%

Some jail time was also displaced for a large minority (30%) of those who failed felony program requirements. Additional CJA research has shown that this was likely to happen when participants who failed in an OCJC-funded program subsequently completed a different program.

Overall, the felony programs achieved some displacement for 42% of their participants. When displacement was achieved, it was high enough to offset the fact that the programs were effective less than half the time in obtaining any displacement.

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R Reesseeaarrcchh B Brriieeff The Findings: The Combined Felony Programs (continued) What Other Factors Were Associated With Greater Displacement?

Predicate felons (defendants with at least one prior felony conviction) were especially good candidates for displacement, although prosecutors were reluctant to release them to a program.

Predicates constituted only 6% of the felony sample. Programs were able to displace over a year (376 days) of incarceration, on average, for each predicate they enrolled.

Defendants charged with Class-B felonies (59% of the sample) were also facing more jail or prison time than those charged with less serious offenses.

Their displacement averaged 178 days. In addition, defendants prosecuted by a Superior Court Information (SCI, 13% of the sample) displaced more jail time by participating in an ATI program (157 days) than defendants who were indicted by a Grand Jury.

Being detained at arraignment affected displacement for felony as well as misdemeanor cases. Displacement for felony program participants who were released at Criminal Court arraign-

Combined Felony Programs Average Number of Jail Days Displaced

By Selected Case/Defendant Characteristics Predicate

No Yes

B felony

No Yes

Indictment Method

GJ SCI

97 24

178 110 157

No -50 Detained at arraignment Yes -100

376

139 0

100

200

300

400

500

ment was negative (they served more time than matched cases who did not participate in an ATI program). For each detainee (88% of the sample), however, the felony programs displaced an average 139 days of incarceration.

The Findings: Individual Felony Programs Displacement effects differed considerably from program to program, largely because of the varied nature of the defendant populations served by each.

Programs that accepted the most serious cases and defendants with the most serious criminal records had the potential to displace relatively long sentences. On the other hand, programs that served youth (CEP and YAP) were likely to displace more lenient sentences because many of their clients were eligible for Youthful Offender treatment.

In addition, the programs were not equally successful in retaining their clients to completion, and this also affected displacement. Since program failure triggered harsh sentences that wiped out displacement benefits, programs with the highest success rates tended to displace the most jail time. For example, Freedom had both the highest success rate (69%) and the highest average displacement per participant — 230 days for each participant.

On the other hand, El Rio had the lowest success rate (29%) and still displaced 114 days per client. Offsetting the low success rate was a relatively high proportion of predicate felons in the program.

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Average Number of Jail Days per Client Displaced by Individual Felony Programs Days 300 250 200

230

213

150 100

Target = 120 days 114

103

50 0 -50

57 Freedom Flame- El Rio Tree

DAMAS

CEP

Women’s Day 33 Treatment -28 YAP

The Women’s Day Treatment Program was the only program with no average displacement. It did displace some jail time for about a quarter of its cases, but not enough to offset those for whom the displacement was zero or negative. However, the number of cases in the program sample was very small (n=38). In addition, the program was in its first year of operation, so it may not have been fully operational. For these reasons, data from the Women’s Day Treatment Program are not definitive.

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Conclusions There is no doubt that the ATI programs examined in this research did displace incarceration for many of their clients. This research further established that, unless failure to fulfill the program requirements triggered a severe jail sentence, the programs met — and even exceeded — the displacement goals set by the City.

However, the research also found that there was no jail time displaced for more than half of the defendants in both the misdemeanor and the felony programs. There were two primary reasons for this: one reason is that many did not complete the program successfully and were sentenced more harshly than they would have been if they had never entered the program in the first place. This is by design. The rationale is that the threat of a severe punishment will encourage participants to complete the program successfully.

The second reason that no displacement was found for a large number of cases goes to the heart of the criticism sometimes leveled at ATIs: that many of their clients are not jailbound. This appears to be the situation for at least a third of the misdemeanor sample cases; these defendants completed CSSP successfully but no jail time was displaced. About a quarter of the felony sample also

completed a program successfully without displacing any jail time. They may have been jailbound, but the incarceration they were facing was not any more than it would have been without the ATI program.

One might argue that a quarter to a third is an unacceptable proportion of program participants for whom the ATI requirements were not an alternative to jail. However, it was realized from the beginning that statistical targeting could merely identify groups of defendants who were likely to be sentenced within the target ranges.

It could not guarantee that every targeted defendant would receive a sentence in that range.

That is why the goal was conceived as an average. Some would have received longer sentences, some shorter.

Understanding the factors that affect displacement can help programs to maximize their impact and reduce the number of defendants for whom no jail time is displaced. Programs may have little control over some of the factors, such as persuading prosecutors to agree to release more predicate felons to them. Other factors, however, suggest policy changes that may lie within the ability of program administrators to make. Some of these are outlined below.

POLICY IMPLICATIONS •

The research results provide strong justification for the City’s continuing support for ATI programs on the grounds that the programs do displace a substantial amount of jail time for both misdemeanor and felony defendants.

•

Since failure in the program undercuts displacement effects, finding ways to ensure success for a greater number of clients should be a priority for program administrators.

•

The misdemeanor program, CSSP, could increase its displacement by accepting fewer cases disposed at arraignment (and more cases continued past arraignment). Not only are continued cases more likely to draw jail sentences; these defendants also had a higher program success rate.

•

Both misdemeanor and felony programs could increase their displacement effects by focusing on defendants who were detained leaving Criminal Court arraignment.

Research Brief #1

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Introducing CJA’s Research Brief series Message fromblahblah the Associate Director blah blah blah blah blah blah blahblah for Research: blah blah blah blahblah blah blah blah blahblah pleased announceblah the beginning of a blahI am blah blah toblahblah blah blahblah series of blah Research blahblah blah. Briefs to be published several times a year by the New York blah Criminal blah blah blah blahblah blahJustice blah Agency (CJA).

Over the last 25 years, CJAblah has blahblah blah blah blah blahblah blah blah produced numerous research reports, blahblah blah blah blah blahblah blah which blah present aboutblah. the activities the blahblahinformation blahblah blah blah blahof blah court system as well as of CJA. This new blahblah blah blah blah blahblah blah blah blah Research Briefblah series presents summaries the blahblah blah blah blahblah blah blahofblah major findings of blahblah selected blahblah recent CJA blahblah blah blah blah research blah. reports.

The series has three goals: to blahblah blahblah blah blah. blah blah1)blah disseminate the highlights of research studies in blahblah blah blah blah blahblah blah blah blaha short, readable article; to present statistical blahblah blah blah blah 2) blahblah blah blah blah results inblah a visually appealing, easily accessible blahblah blah blahblah blahblah blah blah. format; 3) toblah discuss the implications of CJA’s blahandblah blahblah blah blah blah research in a way that will be useful for blahblah blah blah blah blahblah blah blahpolicy blah makers practitioners. blahblahandblah blah blah blahblah blah blah This first Research the impact of blahblah blahblah blahBrief blah.discusses blah blah. alternative-to-incarceration programs on jail displacement. We hope you find this and future issues in the series to be both informative and useful.

—Richard R. Peterson The New York City Criminal Justice Agency 52 Duane Street New York, NY 10007

TO:

Coming next in this series: Research Brief #2 April 2003 Criminal Recidivism Among Felony-Level ATI Program Participants in New York City

By Jukka Savolainen, Ph.D. This study examines the extent and nature of post-program criminal recidivism among felony offenders who exited from New York City Alternative-to-Incarceration programs from July 1998 through March 2000.

The full report and executive summary are already available on our web site: www.nycja.org/research/research.htm