As Nassau County’s director of probation for six years before retiring in early 2016, after 38 years “in the system,” I was committed to meaningful justice reform. By any objective measure, our criminal and juvenile justice systems are broken. The financial costs are unsustainable and the offender outcomes unacceptable. Moreover, the very individuals and institutions that should be the champions of change are the most invested in maintaining the status quo. Whether by happenstance or design, and most likely both, we have created a justice industry with the primary goal of ensuring its own continuity.
Increasingly, non-system observers are viewing our policies, programs and impact through a procedural justice lens, and so should we. Simply stated, when the system is perceived as respectful and fair, or can otherwise lay claim to legitimacy, individuals tend to be increasingly law-abiding and they and the community more accepting of system outcomes, including when these outcomes are negative. Too often, however, the system is viewed as unfair and lacking respect.
Arguably, the most tragic example of procedural injustice is when an ostensibly routine interaction between law enforcement and a member of the community, such as a traffic stop, results in that person’s death. My 33 years of firearms training as a peace officer tells me that, with few exceptions, these appear to be justifiable homicides, but was the outcome fair? Of this I am much less certain.
Another troubling example of system illegitimacy arises when inmates in our jails and prisons are not provided the basic services they require. The New York State Attorney General, after investigating the deaths of 12 inmates at the Nassau County Correctional Center, has filed suit against Armor Correctional Health Services to address what appears to be an egregiously inadequate standard of physical and mental health care. Armor has been responsible for providing these services on a contractual basis since 2011. In response to the suit, the Nassau County Comptroller has at least temporarily suspended monthly payments to Armor, though there is some question whether this was motivated by a sense of justice or political gain. Those most responsible for this deadly debacle, the Nassau County executive and Legislature, remain on the sidelines.
While the debate over accountability and liability will and should continue, a more fundamental issue is the rate at which Nassau’s criminal defendants are held in custody following arrest. As reported monthly by New York State Division of Criminal Justice Services, Nassau routinely leads the state in pre-trial detention, with upwards of 80 percent of its jail inmates awaiting their day in court. These are individuals who have not been convicted of any criminal wrongdoing. The only issue that legally can be considered in setting their bail is whether they are likely to appear on subsequent court dates to answer the charges. In reality, other factors influence who is continued in custody following arraignment and who is released. Evidence-based pre-trial detention best practices emphasizing the objective assessment of risk of failure to appear give way to bail decisions influenced by the risk tolerance of system decision-makers, who tend to be risk-averse. The fewer the number of offenders released following arrest, the fewer the number of offenders who can re-offend while the original charges are pending and make the decision-makers look “soft on crime,” or otherwise ineffective. This procedural injustice inflates detention rates, with a disproportionate impact on specific groups.
The result, beyond the degradation of system legitimacy, is that some of Nassau’s pre-trial detainees are low-level offenders who present a minimal flight risk but are held, often on relatively low bail, in beds costing upwards of $250 per day. These costs increase significantly during the first few days of custody, driven by higher levels of inmate supervision and screening and the need to address immediate physical and mental health issues.
There are two available remedies Nassau should explore. First, staff arraignment court with experienced judges, prosecutors and defense attorneys, including on the weekends, and routinely train all parties in detention practice and local issues and trends. Second, build upon Probation’s existing universal screening of prisoners awaiting arraignment. After screening out those at the lowest and the greatest risk of failure to appear, for whom release decisions should be relatively straightforward, allocate the time and resources for Probation to interview and risk assess any prisoner presenting too little risk to require bail but too much risk to be released on his or her own recognizance. Existing Probation resources are sufficient if the current Conditional Release to Probation program were actually utilized, as designed, with these medium flight risk offenders in mind. CRP is now too commonly imposed as a feel-good add-on for lower risk defendants and, as a result, Probation workloads have grown so large that currently only about 20 percent of the prisoners screened on any given day can also be interviewed and risk assessed. Probation has tracked release decisions for these cases over the past four years, and there is essentially no relationship between objectively-assessed flight risk and release status.
Depriving community members of their liberty while they await disposition of pending criminal charges is as important a decision as any made throughout the legal process. The subsequent failure to provide every prisoner with the appropriate level of physical and mental health care is unconscionable. How many inmates awaiting court appearances at the Nassau jail could reasonably be released? How many inmates who could be released require health care while in custody? How many of those inmates, other than those who have died, received and continue to receive inadequate care? How much more responsive could Armor, or any health care provider, be if there were fewer inmates to care for?
The development and implementation of a more rational, objective and fair pre-trial detention model in Nassau County would improve justice system outcomes for the community and the offender, preserve taxpayer dollars, including those that ultimately fund civil litigation awards, and enhance the legitimacy and ultimate efficacy of Nassau’s justice system.