Cases Day Custody 09

CJA

Research Brief No. 20

NEW YORK CITY CRIMINAL JUSTICE AGENCY, Inc.

May 2009

A series of reports summarizing current research from fro CJA Executive Director, Jerome E. McElroy Director, Research Dept., Richard R. Peterson, Ph.D. Research Brief Editor & Deputy Director, Research, Mary T. Phillips, Ph.D. Graphics & Production, Raymond P. Caligiure Administrative Associate, Annie Su

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.

New York City Criminal Justice Agency, Inc. 52 Duane Street New York, NY 10007 PHONE: 646 213-2500 FAX: 646 213-2650 WEB: www.nycja.org © 2009 NYC Criminal Justice Agency, Inc.

The CASES Day Custody Program

By Freda F. Solomon, Ph.D. Creating an alternative to short jail sentences for recidivist misdemeanor defendants 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 provides an alternative sentencing option in some misdemeanor-prosecuted cases convicted at Criminal Court arraignment in which a jail sentence would otherwise be imposed. It currently is available only at the downtown Manhattan court location.

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 attorneys, judges, and the defendant him/ herself. In addition, program staff may

not advocate for defendants in Spotlightdesignated cases, a criminal justice program targeting a specific subgroup of active recidivist defendants in misdemeanor cases. However, defendants in Spotlight cases may receive a DCP sentence if an application for the program is made by other court personnel, or in instances in which the case appears to be eligible because court papers are not properly marked.

The research describes characteristics of program participants and cases, reports on successful completion and failure rates, assesses penalties imposed for program failure, and describes and compares the characteristics of rejected cases and defendants.

Selected issues related to recidivism among all program-sentenced defendants, and separately among successful program clients, are examined in comparison with a pre-program period.

This Research Brief is adapted from The Day Custody Program: First Year Report (2008) and The Day Custody Program: Second Year Report (2008)

by Senior Research Fellow Freda F. Solomon, Ph.D. The full reports (and Executive Summaries) are available on CJA’s web site: www.nycja.org/research/research.htm Project Co-Director: Elyse J. Revere Research Assistance: Steve Mardenfeld Systems Programming: Geraldine Staehs-Goirn Address comments to the author at fsolomon@nycja.org Please cite as follows, adapted to your citation style: Solomon, Freda F. 2009. “The CASES Day Custody Program.”

Research Brief series, no. 20. New York: New York City Criminal Justice Agency, Inc.

CJA

Research Brief Program Description

Case and Defendant Characteristics In DCP-Sentenced Cases

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. 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.

Defendants sentenced to the program have 10 weekdays in which to complete the three program days’ activities. The DCP sentence is entered as an intermittent sentence of imprisonment with a jail sentence penalty for program failure, usually of 10 days. A court compliance date is scheduled 15 days after sentencing at which time CASES program staff report on whether or not the defendant successfully completed the program.

Between October 1, 2005, and September 30, 2007, the end of the second full year of operation, CASES staff screened the court papers in a total of 7,384 cases of which 1,044 cases (14%) 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.

In the first program year there were 548 program-sentenced cases involving 525 defendants (with 23 defendants sentenced twice in the first program year). In the second program year there were 496 cases involving 485 defendants (with 11 defendants each receiving a DCP sentence twice in the program’s second year). ► In both years CASES’ selection criteria were met in over 60% of the program-sentenced cases. 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 periods.

In a tiny percentage of the cases there were defendants without the required number of prior misdemeanor convictions. ► Defendants in program-sentenced cases were mostly male, nonHispanic Black, and 35 years of age or older. In over 85% of the cases defendants 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. ► Cumulatively, less than a third of defendants in program-sentenced cases reported being employed, in school and/or in a training program on a full-time basis—36% in the first program year and 25% among the second program year’s cases. ► In both program years over 90% of all DCP-sentenced cases were prosecuted for an A-misdemeanor severity crime, and over 90% of all cases also had a conviction to an A-misdemeanor severity crime. ► In both program years over a third of all cases were prosecuted for a property-category crime, almost all of which were for a charge of petit larceny (PL 155.25). The drug category, primarily non-marijuana drug possession (PL 220.03), had the second largest volume of cases (Figure 1). ► The misconduct category, which contains a number of public disorder offenses such as criminal trespass, had the third largest volume of cases although the percentage was greater in the second program year (Figure 1). In the fraud category almost all of the cases were prosecuted for fare evasion (PL 165.15).

Figure 1 Top Prosecuted Crime At Criminal Court Arraignment For DCP-Sentenced Cases Other 5%

Year 1 N = 548

Year 2 N = 496 0%

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Property 36%

Property 36%

Drugs 35%

Drugs 30% 50%

Misconduct 13%

Misconduct 16%

Fraud 11%

Fraud 9%

Other 9% 100%

May 2009

CJA Completion Rates The overall successful completion rate was over 80% in the first program year and almost 80% among defendants in the second program year’s cases (Figure 2). ► Among defendants in program-eligible cases the successful completion rate was 87% in the first program year and 84% in the second. ► Successful program completion rates were lower (72% and 71%, respectively) in Spotlight cases. ► The insufficient priors category (fewer than three misdemeanor convictions) was too small for meaningful comparisons.

Determining the exact penalty for program failure is complicated by the fact that re-sentencing frequently occurred subsequent to a new arrest and, additionally, that computerized court information records did not always correctly record the length of the jail sentence to be imposed for program failure.

However, in general it appeared that jail-sentence penalties were imposed in cases of defendants who failed to successfully complete the program and were returned to court.

Research Brief

Figure 2 Successful And Unsuccessful Program Completion By Eligibility Criteria Year 1 Year 2 Eligible N = 319 Spotlight N = 204

87%

72%

Insufficient Priors N = 25 TOTAL N = 548

0%

13%

Spotlight N = 183

28%

88%

81%

12%

100% Successful

84%

Insufficient Priors N=6

83%

0%

16%

29%

71%

TOTAL N = 496

19%

50%

Eligible N = 307

79%

17%

21%

50%

100%

Unsuccessful

Penalties For Program Failure In the first program year there were 103 cases in which defendants were reported to the court as having not successfully completed the program’s requirements. In 61 cases defendants did not complete the program and in 42 cases defendants failed to appear at all. ► As of June 12, 2007, 94 of the 103 cases had been re-sentenced for the program failure. Of the 94 cases, 88 received an imprisonment sentence (94%), of which 79% were for 10 or more days (Figure 3, Year 1). The remaining six cases were resentenced to a conditional discharge.

In the second program year 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%) had been resentenced for the program failure.

Of the 87 cases, 84 received a jail sentence, of which 75% were for 10 or more days (Figure 3, Year 2).

The remaining three cases received a conditional discharge sentence.

Figure 3 Length Of Jail Time (In Days) For Re-Sentences Of Imprisonment Year 1

Year 2 Less than 10 days

21%

15%

23%

31%

10 days More than 10 days

48%

N = 88

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52%

N = 84

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CJA

Research Brief

Rejected Cases

Recidivism

In the first program year there were 3,115 cases involving 2,665 defendants screened but not program sentenced. In the second year there were 3,225 cases and 2,750 defendants. ► Over 60% of all rejections were made by CASES staff, and the overwhelming majority of these rejections were because of a Spotlight program designation. Defense attorneys were the second greatest source of program rejections. ► In both program years the demographic characteristics of defendants in rejected cases closely resembled those in program-sentenced cases. ► There were some variations in charge characteristics between program-rejected and program-sentenced cases. ► Over two thirds of all rejected cases were disposed at Criminal Court arraignment, and in over four fifths 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 time-served sentences). ► Spotlight rejected cases had the greatest percentage of jail sentences and the largest volume of sentences imposed of at least 10 days. ► Defense (and defendant) rejected cases had the smallest percent of jail sentences. In addition, there was a comparatively smaller percentage of jail sentences of 10 or more days among the defense attorney rejected cases. ► In both program years there were larger percentages of rejected cases with arraignment convictions on drug charges in comparison with program-sentenced cases, which may have affected differences in jail sentence lengths in non-Spotlight cases.

Whether DCP could affect recidivism was an issue of interest to those involved in the program’s planning and implementation. As a starting point for examining this topic a pre-program data set from calendar year 2004 was created from cases in the CJA database.

The pre-program data set consisted of misdemeanor-prosecuted cases in the downtown Manhattan Criminal Court in which defendants were convicted at arraignment and had a jail sentence imposed that was greater than time served. In addition, prior conviction records also were accounted for so that the pre-program cases could be categorized based on program-equivalent eligibility categories—eligible, Spotlight, and cases of defendants with an insufficient number of prior misdemeanor convictions to meet the program’s criteria. To ameliorate any bias from the same defendants having multiple arrests in the pre-program study period we confined the selection to the first case in calendar year 2004 for any defendant with multiple arrests that fit the pre-program cases’ selection criteria.

There was a combined total of 3,850 defendants among the pre-program cases that met the selection criteria. For research purposes recidivism was defined as new prosecuted arrests within five months of jail release.

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► The overall re-arrest rate among the defendants in the preprogram cases was 59%. It was lower among defendants in the eligible-cases category, 53%, and higher among defendants in the Spotlighttargeted cases, 69% (Figure 4).

These pre-program cases were used as a baseline with which to compare re-arrests within five months of the court compliance date for all DCP-sentenced defendants in each program year (Figure 5). ► An identical overall re-arrest rate was found among defendants in the first program year, with a lower, 53%, overall re-arrest rate among second-year defendants. ► In comparison with preprogram defendants there was only slight variation within categories for first program year defendants. There were lower rates in the second program year—48% in the eligible and 61% in the Spotlight category. The insufficient prior misdemeanor category had too few defendants for any meaningful comparison purposes.

Figure 4 Re-Arrest Rates For Pre-Program Defendants 69% 59% 53% 40%

Eligible N=2,002

Spotlight N=1,596

Ins. Priors N=252

Total N=3,850

Figure 5 Re-Arrest Rates For DCP-Sentenced Defendants Year 1 71% 59% 54% 36%

Eligible N=310

Spotlight N=190

Ins. Priors N=25

Total N=525

Year 2 61%

Eligible N=302

53%

50%

48%

Spotlight N=177

Ins. Priors N=6

Total N=485

May 2009

CJA

Research Brief

Matched Comparisons In the previous section re-arrest comparisons were between all DCP-sentenced (including program failures) and pre-program defendant groups. To determine whether any of the differences found reflected a program impact on defendants with successful program completion we refined the comparison groups. Every successful DCP defendant was matched to a pre-program defendant based on demographic, criminal history and charge characteristics.

Differences between the matched groups of preprogram defendants, and first- and second-year successful program clients, were tested using measures of statistical significance. Separate comparisons were made for the program’s eligible and Spotlight categories. There were too few cases with insufficient prior misdemeanor convictions to make comparisons meaningful for that group. The results are presented in Figures 6 and 7.

Prevalence of re-arrests

► If re-arrested, successful program completers had a longer mean time to re-arrest in comparison with pre-program defendants in each matched comparison group (Figure 7). ► The average time to rearrest among second-year eligible defendants was 62 days in comparison with 46 days for their matched pre-program comparison group.

This 16-day difference was the largest among the matched comparison groups and was the only one that was statistically significant.

Research Brief #20

Eligible

Year 1 Successful DCP

Year 2

45%

52%

Matched Comparison

53%

54%

Spotlight

N=265

N=254

Successful DCP

68%

Matched Comparison

57%

73%

68%

0.0 12.5 N=135 25.0 37.5 50.0 62.5 75.0 87.5 100.0

N=126

Percent Re-Arrested

Figure 7 Time To First Re-Arrest For DCP-Successful and Matched Comparison Group Defendants Year 1 Eligible

Time to first re-arrest

Figure 6 Prevalence Of Re-Arrests For DCP-Successful and Matched Comparison Group Defendants

Spotlight

► In the first program year the re-arrest rates between the 265 matched successful and pre-program defendants in the eligible category were almost identical (52% versus 53%). There was little difference between the 135 matched defendants in the Spotlight category (68% versus 73%), and it was not statistically significant (Figure 6, Year 1). ► For second-year successful defendants in the eligible category the lower re-arrest rate between the 254 matched defendants (45% versus 54%) was statistically significant. However, in the Spotlight category the lower re-arrest rate among the 126 second-year successful defendants was not statistically significant (Figure 6, Year 2).

Year 2

Successful DCP

59

Matched Comparison

46

Successful DCP Matched Comparison

48 38

62

N=139

46

N=141

N=98

N=138

49

N=92

37

N=114

N=72

N=86

0.00000016.666700 33.333401 50.000101 66.666801 83.333502

Mean Number Of Days

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CJA

Research Brief

Matched Comparisons (continued) Figure 8 Frequency Of Re-Arrests For DCP-Successful and Matched Comparison Group Defendants

Frequency of re-arrests

Eligible

Year 1

Spotlight

â–ş Among the defendants with re-arrests, no statistically significant differences were found in the mean numbers of re-arrests for any category, in either program year, between successful program defendants and their matched comparison group counterparts. The mean number of re-arrests was approximately 2 for all groups (Figure 8).

Successful DCP

Year 2

1.65

Matched Comparison

1.78

Successful DCP

1.89

Matched Comparison

1.69

N=139

1.73

N=141

N=138

2.18

N=92

2.24

N=114

N=98

N=72

2.45

N=86

Mean Number Of Re-Arrests

Summary The CASES Day Custody Program is available as an alternative sentence in some misdemeanorprosecuted cases at the downtown Manhattan Criminal Court location.

Program activities take place over the course of three days in a DOC facility adjacent to the courthouse.

However, unlike a traditional jail sentence defendants are not held in a correctional facility for the entirety of the sentence. Instead, defendants are responsible for returning to the program location each day.

In the two full program years studied to date, the overwhelming majority of DCP-sentenced defendants satisfactorily completed the program.

Judges impose an alternative jail sentence, most commonly of 10 days, for program failure. In cases in which defendants have failed to satisfy the program’s mandate, the overwhelming majority has been returned to court, and in approximately three fourths of these cases jail sentences of at least 10 days were imposed.

Approximately 85% of all screened cases of recidivist misde-

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meanor defendants in each of the two program years studied have been rejected.

CASES staff was the source of the largest number of rejections, and the largest percentage of these rejections were due to the restriction on Spotlight cases. Defense attorneys were the second largest source of rejections.

Among all rejected cases at least three fourths had jail sentences imposed for an arraignment conviction. Spotlight-designated cases had the greatest likelihood of a jail sentence and the largest volume of arraignment jail sentences of 10 or more days. There was a very small percentage of jail sentences of 10 or more days among the defense attorney rejected cases.

As a baseline for examining recidivism a pre-program data set of downtown Manhattan cases with similar case and defendant characteristics was created, and new prosecuted arrests within five months of jail release were researched. The re-arrest rate among all first-year DCP-sentenced cases and defendants within five months of the court

compliance date was almost identical in comparison with the corresponding pre-program re-arrest rates. There was a somewhat lower overall re-arrest rate among secondyear program-sentenced cases and defendants.

Matched comparison groups were created between successful program defendants in each year and pre-program defendants. These were used to examine whether successful program completion might have had an effect on recidivism among defendants in the eligible and Spotlight cases.

The analysis found little difference in recidivism patterns among first-year successful program clients in these two categories and their matched pre-program counterparts, and none was statistically significant. In the second program year greater differences were found, and the lower re-arrest rates and longer average times to first re-arrests for defendants in the program-eligible category were statistically significant. This suggests that DCP may be having some effect on recidivism.

May 2009

CJA

Research Brief

Policy Implications The high compliance rate, the high likelihood of return to court for program failure, and appropriate penalties imposed upon unsuccessful defendants if returned to court, demonstrate that the program successfully holds programsentenced defendants accountable for their conviction for misdemeanor crimes. As such, CASES appears to have developed a viable alternative to short jail sentences (10 or more days) for at least some recidivist misdemeanor defendants.

There was some evidence of a modest effect on recidivism among second-year program-eligible participants in comparison with their pre-program counterparts. However, there still is more to be learned about what program elements work best and for what specific case and defendant characteristics. As a result, the extent to which this program can make inroads in the high recidivism rate among repeat misdemeanants remains to be seen.

The program is limited in size due to eligibility restrictions and sentencing practices in non-Spotlight cases at Manhattan Criminal Court arraignment. The exclusion of defendants in Spotlight-targeted cases greatly reduces the pool of program-eligible jailbound defendants. Although Spotlight-

Research Brief #20

targeted cases made up somewhat over a third of the DCP-sentenced cases in the first two program years, these cases represented only a tiny percentage of all Spotlight cases during the same time period. The Spotlight exclusion would continue to be a limiting factor were the program to be expanded to other court locations.

Among eligible but rejected nonSpotlight cases, the overwhelming majority received jail sentences but the overwhelming majority of these were for less than 10 days. Because defense attorneys are skillful at anticipating the sentence offers and jail time (if any) for guilty pleas, they have been effective gatekeepers in screening out cases in which defendants were not likely to receive a jail sentence at least equal to the alternative sentence for program failure.

To expand the eligible pool in the current downtown Manhattan Court location would require that either the District Attorney’s Office, judges, or both, more widely embrace the program to make it a more attractive alternative. Other possibilities would be to expand the program into other court locations with a different mix of cases and sentencing practices, and to post-arraignment Criminal Court appearances.

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Research Brief from

CJA

No. 20 (May 2009) The CASES Day Custody Program Forthcoming: No. 21 (September 2009) Juvenile Offenders and Weapons

by Marian J. Gewirtz

Most recently published in this series: No. 19 (January 2009) Pretrial Failure Among New York City Defendants (Siddiqi) No. 18 (September 2008) Bail, Detention, and Felony Case Outcomes (Phillips) No. 17 (May 2008) Pretrial Misconduct Among Domestic Violence Defendants (Peterson) No. 16 (January 2008) Predicting The Likelihood of Pretrial Re-Arrest For Violent Felony Offenses (Siddiqi) No. 15 (September 2007) The Risk of Re-Arrest For Serious Juvenile Offenders (Gewirtz) No. 14 (May 2007) Bail, Detention, & Nonfelony Case Outcomes (Phillips) No. 13 (January 2007) An Evaluation of CJA’s New Release-Recommendation System (Siddiqi) No. 12 (September 2006) Pretrial Outcomes For Domestic Violence Defendants (Peterson) No. 11 (April 2006) New York’s Gun Court Initiative: A Pilot Program Study (Solomon) No. 10 (December 2005) Assessing the Impact of Differing Models of Youth Crime Prosecution (Gewirtz)

www.nycja.org/research/research.htm

Research Brief from

CJA

No. 20 (May 2009)

The CASES Day Custody Program The New York City Criminal Justice Agency, Inc. 52 Duane Street New York, NY 10007

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