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Why New York Jail Populations Are Returning to Pre-Pandemic Levels

After the state rolled back a progressive bail law, data from the Vera Institute of Justice suggests judges are ordering more people be held in jails, amid continued worry over COVID-19.

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In mid-September, Angela Reich was sleeping at a supportive living facility for people struggling with substance use when police showed up at her door. They arrested Reich and brought her, in shorts and no bra, to drug court. Reich had started using again, and the facility had contacted the officers.

Kim Durkee, Reich’s mother, said the drug court judge sent her to jail in Broome County, New York, rather than to treatment, “to keep her safe, is what they claim[ed].”

Reich takes mood-stabilizing medication and medication to help with nightmares, which Durkee said she did not receive in jail. As a result, she wasn’t thinking or acting normally, said Durkee, and when presented with paperwork to be released to a treatment program, she did not sign it. She wasn’t released until late November.

Reich’s detention would have worried her mother under any circumstances, but she has been even more fearful during the pandemic. Jails have been “incubators” of COVID-19, according to a recent study. More than 20 percent of people in New York City jails have been infected at least once during their time in custody, and many more people in jails across the state have fallen ill.

But jails are still filling up. Data collected by the Vera Institute of Justice and shared with The Appeal shows that jail populations fell significantly across New York State until April 2020 and then began to rise by late summer,, nearly reaching their pre-pandemic levels by the end of that year. Between April and December 2020, the number of people in the state held pretrial—those charged with a crime and presumed legally innocent—rose by 34.4 percent, or nearly 2,500 people.

Despite some narratives that crime has been on a dramatic uptick, New York’s incidents of the most commonly reported crimes were nearly a quarter lower in 2020 compared to 2011, although there were small upticks in some violent crimes like murder and aggravated assault, according to the state’s data. Those increases are similar to the trend across the rest of the country.

The rise in the state’s jail populations, according to Vera’s experts and a forthcoming report shared with The Appeal, have instead been driven by judges choosing to incarcerate people instead of turning to other alternatives after the state rolled back its landmark bail reform law.

Durkee knows her daughter, like others in jail, struggles with her own issues. “But they’re still people,” she said. “Why is jail the ultimate answer?”

Bail reforms rolled back

In April 2019, in an effort to reduce the number of people in the state’s jails, New York legislators passed a law that barred judges from setting cash bail for most misdemeanors and nonviolent felonies, and required them to assess someone’s ability to pay before setting bail.

Initially, “bail reform actually worked,” said Jullian Harris-Calvin, who collected and analyzed the data and is the director of the Greater Justice New York program at Vera. Though the law didn’t take effect until January 2020, judges started to implement the new rules ahead of time, and jail populations dropped significantly, according to Vera’s analysis. Between April 2019 and April 2020 the number of people incarcerated pretrial fell by 46.2 percent statewide.

“A lot of judges were taking bail reform seriously,” said Harris-Calvin. And even those who didn’t like it still weren’t able to set bail for a large number of charges, she said. More people were “home with their families, going to work, and taking care of their children while fighting their case from home.”

“It seemed really positive,” said Alexis Pleus, executive director of Truth Pharm, a criminal justice reform organization in Binghamton.

But in April 2020, just months after bail reform had gone into effect, the state legislature rolled it back, making more than a dozen charges newly eligible for bail. The rollback followed a flurry of media reports that amplified select cases of people who were released without bail and then allegedly committed other crimes. The state rolled back its law “before there was any way there could have been data or any analysis to prove that bail reform was leading to growing crime rates,” Harris-Calvin noted.

At first, jail populations continued to decline anyway in response to the public outcry to release people at the start of the pandemic. But all of that began to fade in the summer of 2020. “We’ve been seeing our jail population tick back up,” Harris-Calvin said. In some counties, such as Cortland and Onondaga, the pretrial jail populations were higher at the end of 2020 than before bail reform took effect.

Courts shut down in response to the pandemic so cases took longer to process. Many state prisons stopped accepting transfers from jails, forcing people to wait months, while others were held past their release dates if they had been exposed to COVID-19.

Judges setting bail in many cases

And just as the fear mongering over the bail law got to the state legislature, Harris-Calvin suspects that “it also took hold of judges and prosecutors.”

Between June and October of 2020, Vera researchers observed 300 virtual arraignments in Broome, Erie, and Tompkins counties—counties diverse in their geography, size, and demographics, and where pretrial populations rose an average of 31 percent after the start of the pandemic. Despite the fact that fewer than a third of cases concerned bail-eligible charges, judges set bail or ordered someone to be detained in more than two-thirds of cases, according to data shared with The Appeal.

Vera’s court observations have shown that many prosecutors and judges are “trying to shoehorn particular cases into the new exceptions to the bail law,” she said. Judges are also still resistant to the law: In the court observations, judges routinely stated that they only ordered people to be released when charged with bail ineligible misdemeanors and nonviolent felonies because the law forced them to.

The state’s bail law still requires that judges take financial circumstances and ability to pay into consideration when setting bail. But “judges aren’t taking that seriously,” Harris-Calvin said. In more than 70 percent of cases where judges set bail, according to Vera’s observations, neither the judge nor the defense attorney brought up the person’s ability to pay it. “In courtrooms, there’s actually no discussion at all about someone’s financial circumstances,” Harris-Calvin said.

In response to a request for comment, Lucian Chalfen, director of public information for the New York court system, said in an email: “At arraignment, Judges set bail based on the facts and circumstances of the case solely to ensure a defendants [sic] return to court. If a defendant has an issue with the amount set, they can appeal the decision to the Appellate Division.”

Tompkins County has experienced a slightly different trend than the other counties, according to Vera’s data. Thirteen people were held pretrial in April 2020, 23 in August, and 17 in December. “Tompkins is doing very, very well at keeping the numbers as low as possible” thanks to investments it has made in alternatives to incarceration programs, said David Sanders, the former criminal justice coordinator for the county. But racial disparities increased: While the incarceration rates of Black and white people were nearly identical in May and June 2020, the gap had reopened by July.

Dangers of COVID-19 in jails

Being confined to jail is particularly dangerous, as COVID-19 continues to be a threat, according to advocates. The Broome County jail has been declared a COVID-19 hotspot at various points during the pandemic. At first people in the jail weren’t given any protective equipment like masks or sanitation equipment, advocates say; the jail eventually handed out masks but never gave out cleaning supplies. People who Pleus’s organization has worked with have told her that they were given one Tylenol a day when suffering from COVID-19 and little medical attention. Every time someone in a pod of incarcerated people got exposed, they would all go into lockdown for 10 days.

“It’s an unimaginable horror story,” said Bill Martin of Justice and Unity for the Southern Tier.

As in Broome County, the jail population in Erie County “started to creep back up” last fall, said Colleen Kristich, community researcher at Partnership for the Public Good. Advocates were alarmed at the lack of masks and hygiene products — not to mention the inability to socially distance in cramped living spaces.

Cortez Foster was arrested in January 2020 during a traffic stop and barred from posting bail to get out of the Erie County jail because he was on post-release supervision from a prior arrest. When the pandemic started, he said he and other incarcerated people weren’t given access to cleaning supplies and weren’t issued masks until much later in the year. Correctional officers entered units without masks on. Foster worried that his heart murmur put him at increased risk if he were to get COVID-19. “[W]e don’t know if we will contract this deadly virus while being held hostage in this facility that can not provide us with proper medical care,” he wrote in a petition in April 2020. People who tested positive were put into one unit together. “It was sickening. It was horrible,” he told The Appeal.

While in jail, Foster missed the first year of his son’s life, and his fiance struggled to pay her bills while caring for a young child on her own. His mother went into cardiac arrest, eventually requiring surgery, but Foster couldn’t get released to care for her. Once he was released this past January, “she got her confidence … back up simply because she knows her son is home,” Cortez said.

Where lawmakers stand

There’s little appetite in Albany for another fight over bail reform, Harris-Calvin said, and some lawmakers are trying to further weaken the law, not strengthen it. U.S. Representative John Katko, whose district includes Syracuse, has introduced federal legislation that would give judges more power to impose bail if they believe someone might be dangerous. Shortly after winning the election for New York City mayor, Eric Adams said rolling the state bail law back further to give judges more discretion will be a top priority.

But other lawmakers have raised concerns about whether high bail amounts are risking people’s health. In late November, U.S. Representatives Carolyn Maloney and Alexandria Ocasio-Cortez sent letters to all five of New York City’s district attorneys urging them to seek lower bail in order to reduce the city’s jail populations. “We have grave concerns that excessive bail amounts are leading to unnecessary pretrial detention and contributing to a humanitarian crisis in New York City’s jail system, particularly on Rikers Island,” they wrote of the jail complex there. Along with U.S. Representative Jamie Raskin of Maryland, they also sent letters to all district attorneys urging them to release anyone incarcerated on a misdemeanor or nonviolent felony, or those who face “significant health risks.”

To reduce jail populations at Rikers and throughout New York State, Harris-Calvin argues that state lawmakers have to “give the bail reform law more teeth.” First, she said, lawmakers need to undo the rollback of the law. But they also need to issue guidelines for how judges and prosecutors should take someone’s financial situation into account.

“We need to continue to move bail reform forward and strengthen its protections of people who are presumed innocent,” Harris-Calvin said. That will “allow for more people to go home.”