The report, which analyzes arraignment data collected by the New York State Office of Court Administration, says decisions by the judges over a period of two and half years beginning in 2020 has resulted in an estimated total of 580 additional people being detained before trial, costing the city's taxpayers an extra roughly $77 million.
The Institute for the Quantitative Study of Inclusion, Diversity, and Equity joined forces with the Zimroth Center on the Administration of Criminal Law at New York University School of Law, and Scrutinize, a judicial accountability advocate group, to produce the report. The study analyzes arraignment data collected by the New York State Office of Court Administration and the state's Division of Criminal Justice Services.
According to the study's authors, the judges were responsible for substantially more carceral decisions than their colleagues, even when accounting for factors such as the severity of the cases before them and the defendants' prior criminal histories.
"The study essentially finds that a very small group of judges in New York City are responsible for disproportional carceral decisions, or exercise their discretion in a disproportionately carceral or punitive way," Oded Oren, the founder and executive director of Scrutinize, told Law360. "That has led to enormous consequences, both for individuals who are going through the system and the community and the system as a whole."
The report's authors proposed implementing new legislation to limit judges' discretion to incarcerate defendants pending trial and went as far as recommending the removal of overly carceral judges from overseeing criminal cases. It also called for court administrators to release to the public more data about judges' decisions.
The study analyzed information from a sample of over 48,000 criminal cases arraigned in New York City between Jan. 1, 2020, and June 30, 2022. The researchers said their report used statistical modeling that controlled for 16 distinct factors that might have impacted the judges' decisions.
"Our findings demonstrate that New York City defendants run a substantially greater risk of pretrial detention when their cases are arraigned by the fourteen judges identified in our report," the study said. "This finding is consistent with other research that has found that the identity of the arraigning judge is a strong predictor of the outcome of the bail determination."
Lucian Chalfen, a spokesperson for the state's court system, pointed out in an email to Law360 that the study did not take into consideration the context for each criminal case, which he said was crucial in understanding judges' decisions.
"Each and every criminal case has unique facts and circumstances that go into any judge's decision as to setting bail pretrial. This report looks at simple numbers, without any case context, which is always the determining factor in exercising judicial discretion. It analyzes the answer without looking at the math that went into the answer," Chalfen said. "The seemingly purposeful lack of context is indicative of the report's outcome."
The researchers said the factors they used in their analysis included criminal background and the age of defendants, the type and severity of the charges, and other relevant information such as the arraignment county and date — all of which they considered to be "context" of each case. The analysis looked at what an average judge would do in certain types of criminal cases, and identified the judges who departed from those standards, they said.
"If a judge is detaining a lot, maybe you could just say, 'Well, that's because that judge is getting a lot of extreme cases," Chad Topaz, the co-founder and executive director of research at QSIDE, told Law360. "But what our study does is sort of statistically control for all of that. So it enables more of an apples to apples comparison."
Topaz and Oren said their study aims at throwing a spotlight on judges, whom they say have been largely overlooked in political debates about reforming the criminal legal system, which tend to focus on prosecutors and law enforcement.
Bruce Green, a legal scholar and director of the Louis Stein Center for Law and Ethics at Fordham University School of Law, found the report "interesting" and said statistical information on how individual judges make decisions in a large sample of cases is useful to understand how they exercise discretion.
"There will always be judges at opposite ends of the spectrum, and disparities may not be significant enough to raise questions about whether judges are exercising discretion wisely. But if disparities are significant and worrisome, there is no reason why they should not be taken into account," he said.
Green said the information gathered from statistically analyzing judges' decisions might be useful to voters when the judges run for reelection, to officials in deciding whether to reappoint judges and for judicial administrators in deciding where to assign them.
On the other hand, Green said, limiting judges' discretion through legislation requires careful consideration. In the past, it brought mixed results, he said.
Sentencing guidelines have restricted the ability of judges to consider relevant factors about defendants that warrant leniency. Likewise, reducing judges' ability to use pretrial detention also means they are stripped of the authority of detaining people whom they, and members of the public, think might be dangerous to the community.
"Sometimes we will be unhappy with the results," Green said.
Oren and Topaz said their report has an additional purpose of emphasizing the role of judges in fueling incarceration and the burden of their decisions on taxpayers.
According to a 2021 report by the Office of the New York City Comptroller, it costs over $550,000 to incarcerate a person in New York City every year — about $1,525 per day. The city's Department of Correction's budget for the current fiscal year hit $1.3 billion.
Topaz and Oren's report made references to studies on the impact of incarceration on people's behavior that have concluded that people who spend even small periods of time behind bars appear to be more likely to commit crimes once they're out. That's in part because the time spent in jail often results in lost wages or employment, puts strain on families and exposes people with little or no prior criminal conduct to violence.
One of those studies, released in September 2022 by an advocacy group called New York City Criminal Justice Agency and based on a survey of more than 1,500 people who were arrested and charged with crimes, found that those who were detained before trial had a 35% likelihood of becoming unemployed since their arrest compared to a 20% likelihood for nondetained individuals.
A separate 2022 study funded by Arnold Ventures, a philanthropic organization founded by billionaires John D. Arnold and Laura Arnold, found that increasing the amount of time spent in pretrial detention was consistently associated with increased odds of rearrest.
Another study by a trio of academics that was featured in The Journal of Legal Studies at the University of Chicago Law School in 2016 came to a similar conclusion: It found that setting bail for a defendant leads to a 12% increase in the likelihood they will be convicted and a 6% to 9% increase in recidivism.
"That is the starting point that we should consider bail through: It makes us less safe. It increases racial disparities and inequities in the system. It costs a lot of money. And it really impacts case outcomes in a way that undermines the fairness of the system," Oren said.
Earlier this month, New York tweaked its bail policy as part of its new budget by removing a legal standard that forced judges to impose bail for offenses where the law allows it, only as the least restrictive means to ensure a defendant returns to court.
Advocates pushing for the abolishment of bail have said the changes, which revert aspects of a bail policy that went into effect in 2020 as part of a broad overhaul of bail laws in the state, will result in more people being held behind bars while they wait for their next day in court.
"We will have to see how it affects pretrial detention levels and the carcerality of judges," Oren said. "But I think one thing is pretty clear, which is that the New York Legislature, with these rollbacks, is going against research. It is making pretrial detention more likely."
--Editing by Lakshna Mehta.
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