NYC Judges Have a Tool to Help Them Rule on Pretrial Detention. Why Are They Ignoring It to Make Racially Skewed Decisions?

Pretrial detention—sending someone to jail before they've even had a chance to establish their innocence—is one of the most consequential factors in all of criminal justice. People who are locked up before their trials are more likely to plead guilty and get criminal records, more likely to lose their homes and their jobs, more likely to get further enmeshed in the criminal justice system.

Reducing the number of people locked up pretrial in New York City jails over the first two decades of this century was what made it possible to contemplate closing Rikers Island and replacing it with smaller, more humane borough-based jails. The rise in pretrial detention in recent years has been used by the Adams administration and others to argue that this goal is not feasible.

Fortunately for New York City judges hearing criminal cases, the City's Criminal Justice Agency has a statistical instrument that is extremely good at predicting whether someone will come back to court. But as a new study published this month by the Data Collaborative for Justice finds, judges aren't following the guidance of the tools as much as they could. Instead they're locking up people who are likely to make their next court date on their own. 

Significantly, judges are deviating from the recommendations of the tool more for Black and Hispanic people, meaning that even though judges have a racially neutral mechanism for considering pretrial detention, they're choosing to disproportionately lock up people of color anyway. Indeed, in cases with violent felony charges where the assessment instrument recommends that someone be released, judges are setting bail on Black people at a rate 51 percent greater than for white people. As the survey authors put it, "low rates of judicial alignment, especially when the tool recommends [release on own recognizance], are producing both excessive and racially inequitable uses of supervision, bail, and detention."

We spoke with one of the authors of the study, DCJ's Associate Research Director Joanna Weill, about the study's findings and what it means.