COVID-19 and the ‘New Normal’ in Criminal Justice

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Cars line up at a coronavirus testing station in New York. Photo by New York National Guard via Flickr

The coronavirus pandemic has placed enormous pressure on New York City’s criminal justice system and the agencies that work within it—as it has in most other jurisdictions around the U.S.

How are agencies adapting to the “new normal?” What strategies and techniques used now will survive beyond the immediate crisis, and how much can we count on the public’s willingness to accept fundamental change?

Aubrey Fox, executive director of  New York City’s Criminal Justice Agency, and Greg Berman, former director of the Center for Court Innovation and now a Fellow there, explored those questions in a recent frank, private e-mail conversation. Both men invited The Crime Report to reproduce their exchange—in the interest of widening the debate.

What follows is a slightly edited transcript of their discussion thread.

Greg Berman

Greg Berman: How is New York’s Criminal Justice Agency (CJA) managing the Covid-19 crisis? It seems to me that CJA, which performs a release assessment of all defendants in New York City, helps expedite the bail payment process, and operates a supervised release program in Queens, is in a challenging position.

On the one hand, you have dozens of staffers —researchers, administrators, etc.— who, with a modicum of difficulty, can pretty much perform their jobs from anywhere. On the other hand, you have dozens of staffers —case managers, interviewers, etc—whose jobs don’t translate easily into remote work. The smooth functioning of the justice system depends upon these CJA employees. And thousands of New Yorkers rely upon CJA employees to avoid being detained on Rikers Island. You can’t just unilaterally send these folks home.

I’m wondering how you think about making organizational policy given these facts on the ground and the conflicting values of public health and fairness. Public health would seem to dictate that you move quickly to send as many people home as possible, even if you can’t send everyone. But fairness, and organizational culture, would seem to suggest that you want to come up with a single policy that applies evenly to everybody that works at the agency.

Is this a tension that you experienced? Or do you reject this framework?

Aubrey Fox: It’s good to hear from you Greg. Thanks for easing my sense of isolation! We wrestled with precisely the tension you identified: public health versus fairness. I’m sure these kinds of conversations were happening in non-profits across the city. About half of our staff were able to work from home right away, but our operational staff work 24/7 in the city’s courthouses, and we’ve been transitioning them to working from home.

Aubrey Fox

Aubrey Fox

And as you might imagine, the divide between those who can work from home and those who couldn’t immediately overlaps (but doesn’t neatly correspond) with other divides, like compensation and race.

Reflecting back on it, I would say that we experienced that tension in both productive and counter-productive ways. Productive, because it caused my executive team to think creatively. For example, early on we added five days to everyone’s sick leave balance. We didn’t want people to hoard their days or decide they had to come to work while sick if they had used them all up. (It’s also typically our operational people who have low sick leave balances.)

The counter-productive part was that concerns about fairness led to moving more slowly than I would have preferred. I remember in a tense executive meeting we decided to wait one more day before making major changes. One department head accurately summarized the consensus by saying, “So I should tell my staff they have to keep coming to work.” These were people who were almost all ready to work from home! I woke up the next morning and thought, this can’t be right. We announced a work-from-home policy the next day.

We were lucky in that, even with the delay, we were a few days ahead of [New York’s March 23] shutdown. So we had some time to prepare, and it happened in a relatively smooth way. And to my relief, everyone is working from home now.

A challenge I’m facing now is how to strengthen staff connection to the organization over the next two months, particularly those staff not used to working from home. Not everyone will want or need that, but my guess is that for a fairly large contingent of people it’s going to be important. As an aside, one of the things my team did that I’m proudest of is to on-board virtually 12 people who had a starting date after we closed the office.

These are people who would have been stuck in limbo without a job and maybe without health insurance. They were very grateful that we moved forward. This will be critical to our ability to support the city through a major public health emergency. But they’re not getting the chance to experience the CJA culture first hand.

I don’t have all the answers, but one thing I will say (and I would love for you to add your thoughts) is that I’ve seen this desire for connection with colleagues bubble up organically from staff. So we have one team connecting via Teams, suggesting strategies to keep collaborating on important work and finding ways to keep their morale up at this stressful time. They get together online at the same time each workday.

It’s a lovely thing to observe, and I want to encourage and support it where possible.

Berman: I think maintaining a unifying organizational culture is tough even in the best of times for organizations like yours that work across multiple locations and perform a variety of different functions. I can’t even begin to calculate the degree of difficulty involved in figuring out how to do it in the current environment.

While I am a big believer in the importance of smart, ethical leadership, I have always wondered whether organizational culture can be intentionally masterminded. Can culture be created on purpose? I suppose it can be, but it is very hard.

I think the best organizations have an organic sense of themselves and their place in the world that doesn’t come from mission statements or formal trainings or value statements. Far more important are questions like: Who gets promoted? Who chooses to stay at the agency over the long haul? Which voices carry the most weight in meetings? I’d argue that the answers to these questions determine an organization’s culture.

In terms of connectivity, I also think that organic often (but not always) trumps manufactured. A good organization has vibrant informal networks of communication and mutual support. I think you should be looking to nurture these networks and to empower the staff people—at all levels of the hierarchy—who are natural connectors to disseminate information.

I’m interested to hear your perspective on the new realities on the ground in the justice system. Has business ground to a halt within the courts? Are people actually getting released from Rikers?

Fox: Thanks for bringing up two of my favorite topics – how to shape organizational culture and hipster podcast episodes! Thanks to you, I am now an expert on the soundtrack to the 1993 film “Judgment Night.”

You asked about the realities of what’s going on in the ground in the justice system. I’ve been involved for over two decades in criminal justice in New York City, and I’ve never seen such dramatic change so quickly. The courts are largely shut down except for a small number of new arraignments, and CJA and Supervised Release are (for the moment at least) not part of the arraignment process.

At the same time, we are rethinking our basic operations. Supervised Release is moving from face-to-face contact to supervision over the phone (or FaceTime). There are over 30,000 New Yorkers who are currently released on recognizance awaiting a rescheduled court date, and at CJA (which issues over one million court reminders every year), we are thinking about how to stay in touch beyond telling them their court date has been postponed, including delivering public health messages.

Along with other Supervised Release providers (CASES and the Center for Court Innovation), we have also been asked to help support the release of people from Rikers Island in ways that have required almost minute-to-minute adjustments and improvisation.

It’s hard to get my head around all these developments, and I wonder what techniques and strategies that are being launched almost in desperation will survive beyond the immediate crisis.

 Berman: I think you are highlighting a reality that few people outside of our little bubble have wrapped their minds around: the justice system in New York City is in the midst of something that feels an awful lot like systemic change.

When I moved to New York at the end of the [David] Dinkins administration, New York was still grappling with a very real public safety crisis. The murder rate rose throughout the 1970s and 1980s, eventually peaking at 2,200 people annually. There were over 20,000 people in our jails, many of them housed in bubble tents that were supposed to be temporary structures but had become a semi-permanent part of the landscape on Rikers Island.

The size of the police force was growing and a new focus on order maintenance was taking hold. In the courts, short-term jail sentences (30 days or less) were a common response to minor crime. These were some of the basic facts of life in the justice system in New York City in the 1990s.

Today, basically none of those things are true.

The reach of the justice system has shrunk dramatically. As crime has gone down and police and prosecutors have sought to be more parsimonious, there are significantly fewer people entering the system. As you point out, the vast majority of the defendants who do come into the system are not held in jail— they are released on their own recognizance while their cases are pending. Judges are availing themselves of alternatives to incarceration. And the headcount on Rikers Island continues to fall— last time I checked it was a little more than 5,000, although you might have a more up-to-date number.

Editor’s Note: On Thursday, New York Mayor Bill deBlasio announced the number of inmates in the city’s jails had dropped to around 4,900—the lowest number recorded since 1949.

From my perspective, there has been very little acknowledgment, let alone celebration, of these changes. I imagine that part of this is a function of the times that we are living through— there is so much competing for people’s attention, and a free-floating anger and distrust seems to have settled on the land. It is also true that there is still a lot left to accomplish . We have not eliminated domestic violence or racial disparities or disorder on the subways or neighborhoods that are dangerous to walk through at night.

But I personally think we need to highlight the progress that has been made, particularly because of the current mood of public revolt against government.

Here is a real-life example of government adapting to changing conditions and public concerns. It is a story that should be widely shared —and replicated, where possible.

At the risk of asking you to play Nostradamus, I’m wondering how you think the current public health emergency will affect the trends that I have described above. An energized advocacy community is seizing on the crisis to argue for the immediate release of detainees on humanitarian grounds. It seems that some of this is already starting to happen.

There is a potential danger lurking here. New York City does not have a robust infrastructure to support those who are released— halfway houses, intensive services, supportive living situations where residents can get the structure they need, etc. What happens to the individuals who are released from Rikers will be closely watched, and any failures will undoubtedly be well publicized. Do you worry that this is a set-up for failure?

Fox: Yes, I am very worried.

One of the most overused metaphors in criminal justice is the idea of the pendulum – that responses to crime will inevitably swing between two extremes.

As CJA documented in a paper analyzing over five million pre-trial release decisions made in New York City from 1987 to 2018, the swinging pendulum hasn’t really been effect in New York City, at least not when you look at the data. What we see is a long and gradual swing in a single direction. Money bail as a percentage of pretrial release decisions at arraignment went from a high of 48 percent in 1990 to 23 percent in 2018 in a slow and steady drop.

At the same time, court caseload volume also went down, so the total number of money bails went from around 80,000 to 30,000 during the same time period. That’s why the Rikers population has dropped so much.

Those declines started to accelerate a few years ago, but really began to take off with the bail reforms that were adopted in [January] 2020 and have generated so much public controversy pre-coronavirus. What the bail laws did was shift a practitioner-led movement away from money bail and pretrial detention into overdrive. The explicit goal is to replace judicial discretion with legislative fiat.

I think there’s a legitimate argument to be made about whether those bail reforms are a good or a bad thing (spoiler alert: I think it’s complicated), but I think it’s undeniable that criminal justice politics are playing out in very volatile and unpredictable ways.

It’s in that context that (as you rightly point out) the tenor of the debate really concerns me. It’s worrying that advocates at best grudgingly acknowledge the remarkable changes that have already occurred in day to day criminal justice practice in the last few decades.

That unwillingness has created an enormous opening for those on the other side of the issue to sensationalize the difficult trade-offs and balancing acts that judges have to make every day. And if you’re trying to reform a system, it doesn’t make sense to alienate the very people who play a critical role in its functioning, as advocates do when they relentlessly bang the drum about the dangers of judges retaining more discretion to make decisions.

To borrow from the movie “Spinal Tap,” coronavirus has the potential to take this dynamic to 11. As I type, supervised release providers are being given the difficult task of supervising people being let out of New York City jails. This is a tremendously difficult logistical task given restrictions on travel and the (understandable) rush to release people as quickly as possible, which limits our ability to intake new clients in an organized way.

We are collectively inventing-on-the fly new protocols for supervising people remotely (what I call “social distancing social work”). But it’s not easy work, and it’s not clear to me that we can handle the enormous expectations that come with the job: to provide meaningful connections to social services while ensuring that clients stay on the straight and narrow – all in the middle of a pandemic.

So, I will turn the question back to you: is it possible to slow down the pendulum, or is New York City fated to see it swing back in the other direction?

Berman: It is always a fool’s game to predict the future, but this is doubly true in the current moment. Who knows what the world will look like when we finally do emerge from quarantine?  A lot will depend upon public opinion. I think the advocacy efforts of the past decade or so, reflected in the events following Ferguson, the rise of Black Lives Matter, the publication of The New Jim Crow—have had a real impact. They have created a constituency for criminal justice reform that previously did not exist on a significant scale.

But I think we should also be careful not to overestimate the public appetite for change. I I think the underlying assumptions about crime and justice among the general public are still pretty conservative. Surveys show that public concern about crime is largely untethered to actual crime rates. The public consistently thinks that crime is going up despite a decades-long trend in the opposite direction.

All of which is to say that there is a receptive audience out there when politicians and editorial writers highlight bad cases or upticks in certain categories of crime. If there are enough of these kinds of developments, then it is easy for me to imagine the pendulum swinging dramatically in a more punitive direction.

At the risk of being a cockeyed optimist, I think it is possible that one side effect of the coronavirus crisis will be to reduce some of the political energy around criminal justice. And I think that could be a good thing in the long run, allowing the system to achieve a sense of equilibrium and figure out how to transform the policy shifts of the last couple of years into effective practice on the ground.

Maybe that is a good note to end things on.

Readers’ comments are welcome.

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