Better by Half: The New York City Story of Winning
Large-Scale Decarceration while Increasing Public Safety

JUDITH A.
GREENE*
Director, Justice
Strategies

VINCENT
SCHIRALDI
Senior Research
Fellow, Harvard
Kennedy School,
Program in Criminal
Justice Policy and
Management

For much of the latter part of the twentieth century, New
York was a metaphor for the urban decay confronting so
many American cities. With the number of murders topping 2,200 in 1990, New York’s jail population was
bursting at the seams, peaking at nearly 22,000 inmates in
1991, more than double today’s population. Similarly, in
1998, the number of New York City residents in state
prisons peaked at 47,315, a number which fell by more than
half to 22,580 by May 2016.
Few could have imagined that in 2015, the City would
experience 350 murders with steep declines in other crime
categories as well.1 Writing in 2011, University of California
Law Professor Franklin Zimring dubbed New York City’s
crime decline ‘‘the largest and longest sustained drop in
street crime ever experienced by a big city in the developed
world.’’2
Given the dominance and popularity of incarceration as
a crime-control strategy in the United States during this
time period, a casual mid-’90s observer could be forgiven
for hypothesizing that, if such a miraculous decline in
crime were to occur over the next two decades, it would
surely be the result of a massive increase in New York City’s
incarceration rate. But quite the opposite turned out to be
true. Between 1996 and 2014, the City’s jail and state
prison combined incarceration rate declined by 55 percent,
while the combined incarceration rate in the remainder of
the United States rose by 12 percent. Despite the fact that
the City’s population grew by more than a million people
between 1996 and 2014, the number of New Yorkers
incarcerated in prisons and jails declined by 31,120 during
that time period.
But from 1996 to 2014, the City’s crime rate declined
more rapidly than index crime declined nationally. Between
1996 and 2014, index crime in New York City declined by
58 percent, while index crime nationally declined by a more
modest 42 percent.3
By 2014, this left New York City with the lowest crime
rate of the nation’s twenty largest cities and its second
lowest jail incarceration rate, behind only Wayne County
(Detroit), Michigan, much of which, unlike New York City,
is suburban.
The time period discussed in this paper—from the
1990s to this year, depending on what data was available
from various sources—was a time of great change in U.S.
prison policy. When it began, there was broad policy-maker

consensus around increasing imprisonment as a crime
control mechanism, peaking in the mid-’90s when the
majority of U.S. states passed ‘‘three strikes’’ mandatory
sentencing laws and Congress passed the Crime Control
Act of 1996, which included funding for prisons and
a federal ‘‘three strikes’’ provision. More recently, there is
a growing, bipartisan consensus that mass incarceration
should be ended (or, at least, curtailed).
One manifestation of America’s fading love affair with
prisons was the allocation of Justice Reinvestment Initiative
(JRI) funds by Congress in 2010. The JRI strategy was
described by Fabelo and Thompson, long-time JRI administrators at the Council of State Governments, as providing
technical assistance to ‘‘support state leaders who demonstrate working across party lines.’’4 The process begins with
the convening of ‘‘a bipartisan group of policymakers and
stakeholders representing all three branches of government.’’ CSG then conducts an analysis of the state’s criminal justice data, which are ‘‘distilled into concise actionable
reports for policymakers’ consideration.’’
A 2013 assessment of the JRI written by a group of
national criminal justice policy experts noted that ‘‘JRI’s
most enduring contribution to date may be its having created a space and a mindset among state officials to seriously
entertain the possibility of lowering prison populations.’’5
While lauding its goals, the authors concluded that the
original objectives of Justice Reinvestment—reducing correctional populations and budgets while reinvesting the
savings to improve the daily lives of residents living in the
neighborhoods that have been ravaged by mass incarceration—had faded along the way. The group expressed
a concern that JRI’s current implementation strategy might
simply serve to institutionalize current levels of mass
incarceration.
Fabelo and Thompson concede that ‘‘scientific findings
supporting the case for ‘less incarceration’ will be insufficient to achieve dramatic shifts in the use of prison and
jail.’’6 They write that it is hard to build broad, bipartisan
support among state leaders for proposals focused on
prison population reductions, even if cost savings could be
realized by doing so, and that elected officials are not moved
by arguments for social justice.
Near the end of the article they note that three states
are achieving significant reductions in their prison populations—New Jersey, New York, and California—without

Federal Sentencing Reporter, Vol. 29, No. 1, pp. 22–38, ISSN 1053-9867, electronic ISSN 1533-8363.
© 2016 Vera Institute of Justice. All rights reserved. Please direct requests for permission to photocopy
or reproduce article content through the University of California Press’s Reprints and Permissions web page,
http://www.ucpress.edu/journals.php?p¼reprints. DOI: 10.1525/fsr.2016.29.1.22.

22

FEDERAL SENTENCING REPORTER

• VOL. 29, NO. 1

• OCTOBER 2016

Chart 1
State prison population decline: Peak year to 2014

(Source: Bureau of Justice Statistics)

either a JRI frame or a ‘‘data-driven, consensus-based
approach to lawmaking.’’7 A quick look at eighteen states
that have seen declining prison populations on Chart 1
shows that New Jersey, New York, and California, what we
might call ‘‘do it yourself’’ states, have the greatest percentage declines in incarceration from their incarceration
peak to 2014.
New Jersey’s prison population decline was triggered by
a combination of parole and sentencing law reforms. Following a federal court decision in 2000 that found that the
parole board was in violation of state law for failing to
conduct timely hearings for 5,800 individuals, the state
eliminated the backlog in less than two years. The Drug
Policy Alliance and Families Against Mandatory Minimums, both of which established New Jersey offices, built
broad public support for changes to the state’s mandatory
sentencing laws for school-zone drug sales, resulting in
their abolition in 2010.
In California, decades of vigorous advocacy for reducing
the prison population by academics, advocates, and prison
litigators seemed to fall on deaf ears in Sacramento until
2011, when the U.S. Supreme Court affirmed a federal
court release order intended to reduce massive prison
overcrowding. The state responded with a series of policies,
including fiscally incentivizing counties to sentence persons convicted of nonviolent offenses to local sentences and
reduce probation violations to prison, and devolving correctional responsibility for people convicted of non-serious,
nonviolent, non-sex-registrant offenses from state to local
jurisdictions. Voters subsequently, resoundingly approved
ballot initiatives in 2012, modifying the state’s 25-to-life
‘‘three strikes law,’’ requiring that the third strike be a violent or serious felony (Proposition 36), and again in 2014,
reducing several drug and property felonies to misdemeanors (Proposition 47). A ballot initiative drafted by the
advocacy community, which shortens sentences for nonviolent offenders, expands good time, and returns discretion
to judges to decide which youth are tried as adults (Proposition 57), is on the ballot for November 2016 with Governor Jerry Brown’s support.

With these robust outcomes for advocacy-driven prison
population declines and less robust outcomes for the
‘‘insider’’8 JRI approach, it seems fair to ask whether the
Justice Reinvestment strategy, with its top-down reliance on
technocratic data analysis and elite consensus-building,
should be preferred to a vigorous bottom-up approach that
flexes grassroots muscle and elicits broad public engagement, as well as litigation, to build powerful political
demands for systemic change.
This article examines the case of New York City, whose
50-plus percent decline in incarceration starting in the mid1990s occurred at a time when incarceration rates in the
rest of the United States, taken as a whole, as well as in the
remainder of New York State, were increasing. Our
research reveals two noteworthy findings relative to New
York’s incarceration experiment. First, it flowed from—or
at the very least, coincided with—a bottom-up effort to
amend, repeal, and reverse the laws, policies, and practices
that swept our nation into the era of mass incarceration—
most particularly those involving the War on Drugs. Second, the profound decline in incarceration in the nation’s
largest city, which leaves it as one of the least incarcerated
cities in America, occurred at a time when New York was
also becoming the safest city in America, giving the lie to
the notion that dominated criminal justice policy in the
United States in the last four decades of the twentieth
century that more incarceration was needed to provide
more safety.
In short, we describe how New York City’s remarkable
reversal of mass incarceration was spurred by grassroots
advocacy and the growth of responsive and reform-minded
public officials at both the local and state levels.
I. New York’s State Prison Population De-Escalates

One of the three most robust state experiences with decarceration has taken place in New York. During 1999, the
state prison population hit an all-time high of 72,899.9 By
the end of 2015, the population had fallen by 28 percent to
just 52,344 (Chart 2).
As indicated in Chart 3, New York City is the sole driver
of the state’s prison population decline. Indeed, if criminal
justice officials in the rest of the state had followed the
City’s lead in adopting new policies and programs, the state
prison population might have fallen by another
13,000 people to reach an overall reduction of approximately 50 percent.
A remarkable policy shift at the New York City Police
Department (NYPD) was the principal factor that set the
trend in motion, after decades of costly prison construction
was needed to manage a boom in population growth. Drug
law enforcement in New York City had played a role in
prison population trends since enactment in 1973 of Gov.
Nelson Rockefeller’s notorious mandatory minimum drug
law reform—the Rockefeller Drug Law. Sale of only two
ounces, or possession of just four ounces, of a narcotic drug
became a Class A felony, carrying a 15-to-life prison sentence. The majority of drug offense cases subject to the new

FEDERAL SENTENCING REPORTER

• VOL. 29, NO. 1

• OCTOBER 2016

23

Chart 2
New York State prison population, 1993–2015

(Sources: Bureau of Justice Statistics; New York State
Department of Corrections and Community Supervision)

Chart 3
Comparing people in New York State prisons
sentenced in New York City with those sentenced
in the rest of the State, 1991–2015

(TNT). TNT mobilized roving cadres of plain-clothes and
undercover narcotics officers to saturate targeted neighborhoods with intensive buy-and-bust operations over
a three-month period before moving on to the next target.
Intensified street drug enforcement flooded prison
capacity, with individuals committed to prison for drug
offenses rising from just 834 in 1973 to 11,225 in 1992,
a remarkable thirteen-fold increase. By 1994, one-third of
all New York State prison beds were holding people serving
time for a drug conviction.11 Ninety percent of them were
Black or Latino.
After enactment of the Rockefeller Drug Laws, New
York legislators continued to constrict judicial discretion by
toughening other sentencing laws. In 1978, longer sentences were enacted for ‘‘violent felony offenders’’ and
‘‘persistent violent felony offenders.’’ Another measure
increased the likelihood that young people convicted of
violent crimes would receive an adult prison sentence.
George Pataki defeated incumbent Gov. Mario Cuomo
in 1994 on a platform of ‘‘truth in sentencing’’ and a pledge
to restore the death penalty. Legislators soon followed his
lead by amending Article 70 of the state Penal Laws to
eliminate parole for people convicted as two-time persistent
violent felony offenders, replacing discretionary release
with fixed ‘‘determinate’’ sentences.
Running for reelection in 1998, Gov. Pataki signed
‘‘Jenna’s Law,’’ abolishing parole for all people convicted as
violent felony offenders. His parole board marched in time
with his get-tough philosophy. Between 1994 and 1999, the
parole grant rate at first hearings dropped from 60 to
40 percent.12 Both Cuomo and Pataki oversaw massive
prison construction. Between 1988 and 1999, the state built
twenty new prisons.

II. Developments in New York City
A. Violent Crimes and Arrests Decrease in
New York City

(Source: New York State Department of Corrections and
Community Supervision)

law would involve much smaller weights, but the lesserknown Second Felony Offender Law, enacted along with
the Rockefeller Drug Law, made a prison sentence mandatory for anyone convicted of any two felonies—no matter
their nature—within ten years.
A national moral panic sparked in the mid-1980s by the
so-called crack crisis did not exempt New York City, even
though the state’s drug laws were already among the
toughest in the nation. Operation Pressure Point was
piloted by the NYPD on the lower east side of Manhattan in
1985.10 Soon the drug enforcement dragnet was spread
across City streets in other neighborhoods like East Harlem
and Southeast Queens by NYPD’s Tactical Narcotic Teams

24

FEDERAL SENTENCING REPORTER

• VOL. 29, NO. 1

New York City’s reported crime data show a remarkable
decrease in violent crime starting in 1991. By 2012, the
City’s violent crime rate had plummeted by 73 percent.
Arrests for violent felonies also declined. In 1994, there
were 70,880 arrests for violent felonies statewide. By 2015,
that figure had fallen to 40,816. Within New York City,
violent felony arrests fell by 49 percent, compared to just
22 percent in the rest of the state. During the same period,
felony drug arrests in the City also took a dramatic tumble
(Chart 4).
The Rockefeller Drug Laws met with opposition from
the day the governor announced his intention to toughen
sentencing laws. After the launch of TNT, criminal justice
reform advocates and community activists intensified their
opposition. In the late-1990s, an effort to organize students
against the Rockefeller Drug Laws was taken up by Kevin
Pranis under the banner of the Prison Moratorium Project
(PMP), an organization founded by Eddie Ellis. Ellis had
established a prison-based policy-reform think tank while

• OCTOBER 2016

Chart 4
Felony arrests in New York City, 1994–2015

percent in the rest of the state—at a time when drug use in
the City remained relatively stable.13
NYPD enforcement priorities had clearly begun to shift,
and the results were dramatic. In just two years, the number of drug arrests had fallen by more than 8,000 from the
high-water mark in 1998. It is plausible that the police were
responding to burgeoning public pressure and/or a shift in
attitudes toward the Drug War in New York City.
Indeed, in 1999, a well-publicized Zogby International
poll of likely New York State voters had indicated that the
Rockefeller Drug laws were highly unpopular.14 Twice as
many voters responded that they were more inclined to vote
for state legislators who would reduce drug sentences and
give judges greater discretion, than the number who said
they’d be less inclined to do so.

(Source: New York State Division of Criminal Justice
Services)

Franklin Zimring has described changes in staffing patterns at the NYPD during the period when crime rates were
falling in the City.15 He notes that during the 1990s, the
number of officers assigned to special narcotics units grew
by leaps and bounds, from 1,183 officers in 1990 to 2,800 in
1999. Yet by 2006, the narcotics force had shrunk back to
three fewer officers (1,180) than its original size. Zimring
speculates that the City had simply won the drug war on its
own terms:

B. New York City Wins the War

he was serving a sentence at New York’s Green Haven
prison. State and City University of New York students
marched in 1997 on the State Capitol carrying banners that
featured a graph depicting a nearly dollar-for-dollar shift in
state spending from higher education to prisons. Pranis
was joined by Kyung Ji Rhee, who played a major leadership
role in the PMP work.
PMP coined the term ‘‘Drop the Rock,’’ which was
embraced by the Correctional Association as the name of
their own drug reform campaign, launched by CA executive
director Robert Gangi in 1999. The campaign soon spawned
a broad coalition of organizations, including the Center for
Constitutional Rights, the Legal Aid Society, the United New
York Black Radical Congress, the American Jewish Congress, the New York Civil Liberties Union, and the Fortune
Society. In 2000, indie recording label Raptivism Records
released No More Prisons, an album of performances by
various rap and spoken-word artists in support of PMP, to
galvanize the hip-hop community about the issue.
In 2000, the Drug Policy Alliance (DPA) was formed in
New York City as a national organization from a merger of
the Lindesmith Center and the Drug Policy Foundation,
with Ethan Nadelmann as its first (and current) executive
director. By 2001, DPA, whose Rockefeller Drug Law
reform efforts were then led by Deborah Small, was producing Spanish-language television ads featuring family
members of people serving prison terms under the Rockefeller Drug laws. DPA’s sustained efforts throughout the
decade to educate the public about the harshness of these
laws served to broaden the various campaigns and alliances
into a powerful movement for reform. In 2006, Gabriel
Sayegh took on a key leadership role at DPA in guiding the
reform strategy to legislative victory in 2009.
Felony drug arrests in the City suddenly began a sharp
decline, from 45,978 in 1998 all the way to 15,507 in 2015—
a drop of 66 percent, compared to a decline of less than 20

Did the department’s priorities change that markedly? Or did New York City win its war on illegal
drugs and then withdraw its troops? One very likely
explanation is that the police had succeeded in
achieving the two major strategic objectives that animated the narcotic unit’s expansion—driving drug
markets off the streets and reducing drug traffic–
related violence.16
Zimring notes that drug-related hospitalizations and
drug-overdose death trends remained relatively flat during
the period. He surmises that the NYPD had never expected
to curtail drug use or its harms with the TNT strategy.
Perhaps their efforts were focused more on affecting the
nature of the drug markets than they were on actually
affecting drug trafficking and use:
Indeed, the almost 60 percent drop in narcotics unit
strength is strong circumstantial evidence that the
open air market and lethal violence aspects of drug
traffic were the department’s chief priorities all along.17
Whatever way the NYPD had measured the success of
its drug enforcement effort, police brass were clearly ready
to move on to other challenges. Mayor Rudy Giuliani
appointed Bernard Kerik to serve as New York City Police
Commissioner in 2000. Kerik had joined the force during
the height of TNT and was soon working undercover,
making scores of buy-and-bust arrests in Harlem and
Washington Heights. By 1990, he’d made detective. The
following year he was assigned to the New York Drug

FEDERAL SENTENCING REPORTER

• VOL. 29, NO. 1

• OCTOBER 2016

25

Enforcement Task Force, a post he held until joining the
protective detail for Mayor Giuliani. Having made his
bones as a drug warrior, Commissioner Kerik was wellequipped to call a retreat in the City’s drug war.

Chart 5
Misdemeanor arrests in New York City, 1994–
2015

C. Misdemeanor Drug Arrests Also Decline

In 1994, Police Commissioner Bill Bratton introduced his
trademark ‘‘broken windows’’ policing. He ended a longstanding NYPD policy that discouraged patrol officers from
arresting people for petty drug offenses, encouraging them
to be aggressive with people they saw committing ‘‘qualityof-life’’ crimes.18 Accordingly, misdemeanor drug arrests
rose sharply from 1994 to 1996, after which Bratton
returned to private life. The sharp rise continued throughout the regime of Commissioner Howard Safir, peaking in
2000 at 102,712.
Once Bernard Kerik replaced Commissioner Safir,
however, misdemeanor drug arrests began a sharp decline
that seems an echo of the felony drug arrest decline. In
2005, under Commissioner Ray Kelly, these arrests began
to rise again to a secondary peak of 84,250 in 2011. By then
drug reform advocates were loudly denouncing the tens of
thousands of marijuana arrests that comprised more than
40 percent of misdemeanor drug arrests and appeared to be
associated with excessive levels of ‘‘stop and frisk.’’19 The
Drug Policy Alliance, in collaboration with the Marijuana
Arrest Research Project, the Center for NuLeadership, and
VOCAL-NY, organized a campaign to stop these arrests at
both local and state levels. Commissioner Kelly responded
by issuing a series of memos clarifying and liberalizing the
NYPD’s arrest policies for marijuana, and Mayor Michael
Bloomberg called for the issuance of desk appearance
tickets in lieu of arrests for marijuana possession.
During the 2013 mayoral election campaign, there was
general agreement by the candidates to reduce marijuana
arrests. From 2011 to 2015, the number of misdemeanor
drug arrests plummeted by 50 percent, back to the level
before Commissioner Bratton told the patrol troops to crack
down on petty street crime (Chart 5).
III. Prosecution and Sentencing in Drug Cases

Recent data indicates that prosecutors across New York
State indict or file a superior court information for about 35
percent of felony drug arrests in order to prosecute them as
felonies in the superior courts.20 The decline in felony drug
cases between 2006 and 2015 (the period for which data are
available) has been significantly deeper than the decline in
violent offenses.
Reflecting the turn in public sentiment about the issue
of drugs, sentencing practices had already begun to shift
across the state before the NYPD shifted its priorities away
from intensified drug enforcement, and almost two decades before Rockefeller Drug Law reform was enacted. In
1990, the newly elected Kings County (Brooklyn) District
Attorney Charles J. Hynes decided that for many repeat
felony drug offenders, their families and their communities
would benefit more from a treatment alternative than from

26

FEDERAL SENTENCING REPORTER

• VOL. 29, NO. 1

(Source: New York State Division of Criminal Justice
Services)

Chart 6
Indictments and court informations prosecuted in
Superior Court, 2006–2015

(Source: New York State Division of Criminal Justice
Services)

a mandatory prison term. Hynes struck an historic blow
against the Second Felony Offender Law, agreeing to divert
people with one or more prior felony convictions to treatment programs. Within a few years, district attorneys
across the state were replicating Hynes’ Drug Treatment
Alternative-to-Prison (DTAP) program.
The DTAP program was evaluated by Columbia University’s Center on Addiction and Substance Abuse.21 The
CASA research team found that DTAP effectively diverted
individuals from incarceration and reduced relapse and reoffense, even for those with significant criminal histories.
DTAP participants were found to be 36 percent less likely to
be reconvicted and 67 percent less likely to return to prison
after two years than a matched comparison group.

• OCTOBER 2016

The DTAP program joined an already robust network of
ATI (alternatives to incarceration) programs that will be
discussed in more detail below. The City’s investments in
ATI programs had been growing since the 1960s, when the
Vera Institute of Justice first developed pretrial release and
diversion programs that became national models, encouraging judges to send people to treatment, educational, or
vocational programs instead of jail.
In the mid-1980s, New York State legislators were allocating hundreds of millions in tax dollars to expand the
state’s prison system, but they also began to provide substantial funding for an array of new ATI programs designed
to target defendants thought to be ‘‘jail- or prison-bound’’
with advocacy and program interventions intended to
reduce the courts’ reliance on incarceration. Some charged
that these programs were largely being misused by judges
to ‘‘widen the net’’ of criminal justice control (i.e., diverting
people who would probably not have been sent to jail or
prison in the first place).
Yet despite a lack of conclusive evidence that ATI programs have had much impact on the state prison population, no one would argue that the network did not have
a strong impact on the culture and climate of the courts—
with scores of ‘‘court representatives’’ from nonprofit
organizations and New York’s criminal defense agencies
actively advocating every day for noncustodial sentencing in
carefully screened cases, and an array of program services
ranging from behavioral health interventions, recovery, and
employment services, to specialized services for women as
well as for noncustodial fathers. Although ATI programs
were not restricted to diverting drug cases alone, the proportion of felony drug cases that resulted in a prison sentence fell from 21 percent in 1997 to an all-time low of 11
percent in 2007 (Chart 7).

Chart 7
Percentage of disposed felony drug cases
sentenced to prison, 1997–2014

IV. Correctional Tools for Prison Population Management

At the state level, correctional managers were working on
a right-sizing approach to managing the prison population.
They set a number of policies and programs in place to gain
more control of population levels as well as to encourage
those in their custody to maintain good behavior and engage
in constructive activities while serving time. These included:
A. Shock Incarceration

Established in 1997, participants in New York’s Shock
program were originally selected by correctional staff from
among those age 2322 and younger who were already in
prison to avoid widening the net of social control. Successful participation in substance abuse treatment resulted
in early release from prison.
A 2007 report to the legislature noted that 80 percent of
FY2005–2006 Shock participants had earned their GEDs.
After release to parole, drug tests indicated an abstinence
rate of 92 percent among Shock parolees.23 By December
2015, 68,764 people had participated in Shock, with a success rate of 73 percent, who received early parole. Correctional officials estimated that their early releases had saved
taxpayers $1.498 billion.24
B. Earned Parole Eligibility

New York’s Earned Eligibility Program (EEP) was introduced in 1992 to provide people that are parole-eligible and
who meet certain criteria with an ‘‘earned eligibility certificate’’ that enhances their chances for release at their first
parole hearing. Most people who can be considered for
a certificate by Department of Corrections and Community
Supervision (DOCCS) staff receive one. But since 1995,
when New York began to embrace truth-in-sentencing, the
number of parole-eligible people in prison has declined,
and many who remain parole eligible are people sent to
prison years ago with very long terms to serve.
From October 2015 through March 2016, 3,941 people
faced their initial parole hearing. 2,225 (57 percent) had
been certified for early release. Of those certified, only 850
(38 percent) were granted parole. Of those denied a certificate, only 7 percent were granted parole.25
C. Merit Time

(Source: New York State Department of Corrections and
Community Supervision)

The Merit Time Program, established in October 1997,
allows people who are serving a prison term for a nonviolent, non-sex offense to earn a reduction of one-sixth off
their minimum term, which qualifies them for early parole
consideration. The reduction depends upon achievement of
specific program goals—obtaining a GED or a vocational
training certificate, completing an alcohol or drug abuse
program, or performing 400 hours of service on a community work crew—provided there have been no serious
disciplinary infractions.
Between the inception of Merit Time and December
2006 (the latest year that program statistics were made
available), 37,914 people had earned a Merit hearing at the
parole board, of whom 64 percent were released prior to

FEDERAL SENTENCING REPORTER

• VOL. 29, NO. 1

• OCTOBER 2016

27

their designated parole eligibility date. On average, those
granted Merit Time shaved about six months off their
minimum sentence. A recidivism study found that the
return-to-prison rate for Merit Time release was 31 percent,
compared to 39 percent for all other releases. By 2006,
DOCCS managers attribute $384 million in savings to the
Merit Time program.26

Chart 8
Prison release type, 2000–2013

D. Parole Release

While these population reduction programs were increasingly embraced by correctional managers, the state’s most
traditional tool for population management began to fall by
the wayside. Until 1995, New York’s penal code required
that state prison sentences be ‘‘indeterminate,’’ with judges
sentencing people to a minimum typically set at one-third
of the maximum. The parole board would review each case,
with an initial hearing to be set in accordance with first
eligibility at the minimum date. Good behavior could earn
one-third off the maximum date. As such, unless they failed
to earn ‘‘good time’’ credits, someone sentenced to, for
example, three to nine years could count on being released
after serving six years at the most.
The federal Violent Crime Control and Law Enforcement Act of 1994 allocated $9.7 billion in prison expansion
funding for states that gave assurances that new correctional policies (including truth-in-sentencing laws) would
be implemented to provide ‘‘sufficiently severe punishment
for violent offenders.’’27
The New York State Legislature enacted a series of truthin-sentencing laws that required determinate terms for
someone convicted of a violent felony with a prior felony
conviction within the previous ten years (1995), of a firsttime violent felony (1998), of a drug felony (2004), and of
a ‘‘non-violent sex offense’’ (2007). Those receiving
a determinate sentence may only earn up to one-seventh
time off for good behavior.
As a result, from 1995 forward, the number of people
sentenced to indeterminate prison terms and therefore
eligible for parole release steadily decreased. In 2000, 59
percent of those released from prison gained release by the
parole authorities, while only 27 percent were released at
their conditional release date. By 2008, the number of
conditional releases exceeded the number of parole releases
for the first time, and by 2013, only 34 percent of releases
resulted from parole board decisions. That same year, 16
percent of those released from prison had ‘‘maxed-out’’
without any grant of ‘‘good time,’’ a modest but steady
increase from only 11 percent in 2000 (Chart 8).
Today, the bulk of those subject to indeterminate sentences are people still serving long terms for serious crimes
committed prior to truth-in-sentencing laws. As the pool of
parole-eligible people dwindled, the rate of parole board
approvals took a nose-dive (Chart 9).
Advocates charge that the increasingly elderly paroleeligible pool of people in DOCCS prisons are being denied
release purely on the basis of their conviction charges. They
say that the board is not taking account of their in-prison

28

FEDERAL SENTENCING REPORTER

• VOL. 29, NO. 1

(Source: New York State Department of Corrections and
Community Supervision)

Chart 9
Percentage of parole-eligible people approved,
1999–2015

(Source: New York State Department of Corrections and
Community Supervision)

behavior, their readiness for release, or their likelihood of
recidivating.28
V. Finally, Drug Policy Reform by Legislative Action

As described above, decades of intensifying advocacy by
proponents of drug policy reform and alternatives to
incarceration began to outweigh the harsh rhetoric of drug
‘‘hawks’’ and the ‘‘tough-on-crime’’ movement during the
late 1990s, resulting in an unprecedented reduction in New
York’s state prison population. Most of that advocacy arose
out of New York City, and not surprisingly, the entire
decline in the state’s prison population was the result of the
decline in persons imprisoned emanating from New York
City. Yet an entire decade would pass before legislators
caught up with public sentiment, and the Rockefeller Drug
Laws themselves would see substantial revision.

• OCTOBER 2016

At the urging of Gov. Pataki, some modest reform
measures were granted in 2003 and 2004 by the legislature. These included: (1) extending Merit Time credits to
those serving 15–life mandatory sentences; (2) expanding
the earned eligibility program from people serving a minimum sentence of six years to a minimum term of eight
years; and (3) allowing people who had no prior violent
felony record, and who were serving time for a nonviolent
conviction, to apply for ‘‘presumptive release’’ after serving
five-sixths of their minimum term. In 2004, a reform bill
ended indeterminate sentences for drug crimes and doubled the weight thresholds that triggered the harshest
mandatory prison sentences.
November 2004 saw yet stronger winds billowing the
sails of drug reform in New York when a political upset in
a closely watched race for District Attorney in Albany
defeated the incumbent DA. David Soares, an assistant
district attorney, ran against his boss on a drug reform
platform. He built a political base spanning Albany’s urban
core to the affluent suburbs with a bold denunciation of the
Rockefeller Drug Laws. Soares’ victory galvanized drug
policy reformers across the state and set many other elected
DAs on edge. Soares’ campaign was backed by philanthropist George Soros, a key funder of the Drug Policy
Alliance.29
In the fall of 2008, key members of the New York
State Assembly convened unprecedented joint hearings
involving the combined leadership of six legislative
committees for day-long sessions in both New York City
and Rochester. National experts, public health practitioners, and local reform advocates alike voiced the need
to establish a public health–based approach to the
problem of drugs.
In January 2009, more than 300 people—health professionals, law enforcement veterans, elected officials,
reform advocates, drug treatment specialists, and active
drug users—gathered in New York City for a conference
convened jointly by the Drug Policy Alliance and the New
York Academy of Medicine to spur reform.
The Speaker of the Assembly responded with a pledge
that 2009 would be the year that reform of the Rockefeller
Drug Laws would be won. On April 7, 2009, New York’s
Governor David Paterson signed Article 216 of the Criminal Procedure Law. Key elements of the reform included:
•

Judicial discretion to place people convicted of drug
offenses into treatment and to offer second chances
when appropriate

•

Diversion for people who commit crimes other than
drug offenses because of issues stemming from
substance dependence

•

Diversion eligibility for people convicted of second
felony offenses

•

Opportunities to try community-based treatment
without the threat of a longer sentence for failure

•

Plea deferral options, especially for non-citizen
green-card holders who would become deportable if

Chart 10
Percentage of drug admissions among all new
admissions, 2000–2013

(Source: New York State Department of Corrections and
Community Supervision)

they take a plea to any drug felony conviction, even if
it is later withdrawn
•

Opportunities for resentencing for more than 900
people who were still in prison under the longer pre2004 indeterminate terms

•

Sealing provisions that protect people who finish
their sentences from employment discrimination
based on the past offense

•

The option to dismiss a case in the interests of justice
when the accused has successfully completed
a treatment program.

Along with Rockefeller Drug Law reform, New York’s
legislators also strengthened DOCCS population-control
valves, extending Shock eligibility, extending Merit
Time to college participation, and establishing medical
parole.
VI. The Impact of Drug Reform on the State Prison
Population

The proportion of people admitted to serve a felony drug
sentence had been declining among all new admissions
since 2000, but the 2009 reform spurred a yet deeper
decline (Chart 10).
The average sentence for people convicted of a drug
felony also fell, along with the percentage of people serving
time for a drug conviction within the overall prison population (Charts 11, 12).
In 1996 there had been 24,000 people serving a felony
drug sentence in New York’s state prisons. At the end of
2014 there were less than 6,700, a breathtaking 72 percent
decline.
The cumulative effect of refocusing NYPD drug
enforcement priorities, the shifting drug sentencing trends
in the City courts, the use of incentivized release programs
at DOCCS, and the legislative reforms—including the longfought-for 2009 Rockefeller Drug Law reform—can be

FEDERAL SENTENCING REPORTER

• VOL. 29, NO. 1

• OCTOBER 2016

29

Chart 11
Average minimum sentence for people with a drug
conviction, 2000–2013 (in months)

Chart 13
New York State prison population, 2000–2014

(Source: New York State Department of Corrections and
Community Supervision)

Chart 12
Percentage of people with drug convictions in New
York State prisons, 1996–2014

(Source: New York State Department of Corrections and
Community Supervision)

VII. New York City’s Use of Jail

(Source: New York State Department of Corrections and
Community Supervision)

clearly seen on Chart 13. Between 2000 and 2014, with
15,601 fewer people serving time on a drug conviction, the
overall prison population level fell by 17,289.
With thousands of empty prison beds, New York’s correctional managers have been able to greatly reduce their
prison capacity, saving money and making the prisons safer
for both correctional staff and the people they guard. During the Pataki administration, DOCCS managers deactivated 2,700 dormitory beds. After the sweeping changes to
the Rockefeller Drug Laws enacted in April 2009, three
small minimum security prisons were closed and annexes
were shuttered at six prisons that otherwise remained in
operation. The DOCCS estimate was that some $52 million
was saved over the next two years.30 By 2014, DOCCS
managers had closed a total of 13 prison facilities, and $24
million in economic development money had been allocated to assist local communities affected by prison
closures.31

30

FEDERAL SENTENCING REPORTER

• VOL. 29, NO. 1

As with the New York State prison population, the decline
in New York City’s jail population has been dramatic and
driven by the shift in NYPD priorities along with substantial
changes in courtroom decisions that have eschewed the use
of jail. The degree of decarceration within the City system
has sparked serious discussions among policymakers and
advocates, with substantial media support, to close the
notorious jail facilities on Rikers Island and relocate persons incarcerated in New York City’s jails to smaller,
borough-based facilities.32
The population of the New York City Department of
Correction has declined from an historic high of 21,688 in
1991 to 9,762 at the end of April 2016, a remarkable
55 percent decline. Jail population levels are determined by
two factors: the number of people who enter the jail, and
the amount of time they are confined until released. Since
1998,33 the average length of stay for both felonies and
misdemeanors has increased somewhat, but admissions
for both offense categories have greatly decreased
(Charts 14, 15).34
A. Pretrial Release in New York City

Since the overwhelming majority of those in NYC Department of Correction custody are detained pretrial (87 percent as of May 26, 2016) what happens with the pretrial
population has an important impact on New York City’s jail
population. New York City detains fewer of those arrested
than most other large urban jurisdictions, and over the past
decade or so, releases of defendants at arraignment have
increased.
Criminal Justice Agency (CJA) staff screen and make
recommendations for defendants held for arraignment in

• OCTOBER 2016

Chart 14
Felong admissions and average days to release,
1998–2015

(Source: New York City Department of Correction)

Chart 15
Misdemeanor admissions and average days to
release, 1998–2015

individuals recommended for release by CJA, 83 percent
were ROR’ed in 2014, compared to 78 percent in 2004, and
for people evaluated by CJA as medium risk, 72 percent
were ROR’ed in 2004, compared to 79 percent in 2014. But
arraignment judges appear to have become more liberal in
general over this period, since 50 percent of those for whom
CJA did not recommend release were released on recognizance anyway in 2014, compared to only 38 percent in this
category who were ROR’ed in 2014.37
A substantial majority of individuals made their court
appearances as required in all recommendation categories,
although lower failure-to-appear rates were associated with
positive CJA recommendations. In 2014, 7 percent of
defendants in both felony and non-felony cases who were
recommended for release failed to appear, as did 11 percent
of those evaluated as moderate risk. By comparison,
defendants in 22 percent of non-felony cases who were not
recommended for release failed to appear.
In addition to near-universal screening of defendants
for release on their own recognizance, in 2014, CJA operated bail-expediting (BEX) programs in the four largest
NYC boroughs, which assisted defendants for whom bail
was set to contact relatives and friends for help in posting
bail. In 2014, Mary Phillips, Deputy Director of Research at
CJA, studied thousands of defendants in New York’s four
largest boroughs, with the following percentages making
bail either in court or within two days of being detained:
•

The Bronx: 26 percent of 5,150 made bail

•

Brooklyn: 21 percent of 7.988 made bail

•

Manhattan: 24 percent of 7,330 made bail

•

Queens: 33 percent of 4,333 made bail.38

B. The Sentenced Population

(Source: New York City Department of Correction)

New York City Courts, 24 hours a day, seven days a week, in
all five boroughs. Founded in 1973 as the Vera Institute’s
Manhattan Bail Project, CJA evolved from the nation’s
pioneer in the use of a risk assessment instrument to advise
courts about the likelihood that if released on recognizance
(ROR’ed) in lieu of bail, a defendant would return to court
on their next required court date.
Recent research on pretrial release shows that defendants in New York City were more likely to be released prior
to case disposition (74 percent) than was the case for the 75
other largest urban areas nationally (58 percent). Nonfinancial release in New York City also made up a larger
portion of releases (50 percent) than was the case for the
other large urban areas (25 percent).35
From 2004 to 2014, the percentage of persons released
on their own recognizance increased.36 For those

In addition to the decline in felony arrests—and particularly
felony drug arrests—described above, there has been
a dramatic change in dispositions of persons arrested for
felonies and misdemeanors in New York during this time
period.
According to the New York State Division of Criminal
Justice Services, felony cases fell by one-third between 1996
(125,703) and 2014 (84,505). Prison sentences declined
sharply as a portion of all felony case dispositions, while jail
dispositions rose slightly (Chart 16). Overall, this substantial reduction in prison commitments makes a large contribution to reducing the City’s combined incarceration
rate39 since people committed to prison have longer lengths
of stay than those committed to jail.
Furthermore, even though jail sentences rose as a percent of all felony cases disposed of, the overall number of jail
sentences declined by 4,738 due to the 33 percent decline in
felony cases disposed of by New York City Courts between
1996 and 2014. In other words, the decline in felony arrests
accounted for all of the decline in jail commitments for
felony arrests, and then some.

FEDERAL SENTENCING REPORTER

• VOL. 29, NO. 1

• OCTOBER 2016

31

Chart 16
Change in arrest dispositions for felony arrestees
in New York City, 1996–2014

(Source: New York State Division of Criminal Justice
Services)

Chart 17
Felony and misdemeanor arrest dispositions in
New York City, 1996–2014

(Source: New York State Division of Criminal Justice
Services)

A different trend appears with the misdemeanor arrests
and dispositions, although the misdemeanor trend also
nets out to substantially fewer jail commitments. Misdemeanor arrests rose from 181,817 in 1996 to a peak of
237,818 in 2011 before falling to 215,352 in 2014, a net
increase of 18 percent or 33,535 misdemeanor arrests
(Chart 17).
But the small number of misdemeanor acquittals rose,
and New York courts and prosecutors diverted, dismissed,
or declined to prosecute an increasing portion of misdemeanor cases, even as misdemeanor arrests mushroomed.
As such, even though there were 33,535 more misdemeanor
arrests in 2014 than in 1996, because of a 34 percent

32

FEDERAL SENTENCING REPORTER

• VOL. 29, NO. 1

increase in dismissals, acquittals, and declinations, 6,653
fewer misdemeanor convictions were obtained in 2014 than
in 1996.
Jail as a disposition for misdemeanor arrests also
declined during this time period. In 1996, 25 percent of all
misdemeanor cases were sentenced to jail, compared to
only 20 percent in 2014. In total, despite the fact that there
were 33,535 more misdemeanor arrests in 2014 than in
1996, there were 1,954 fewer cases in NYC ending in a jail
sentence in 2014 than in 1996.
During this time period, jail lengths of stay for individuals with felony charges increased by 28 percent, from
74 days in 1996 to 94 days in 2013, adding nearly three
weeks of incarceration for thousands of individuals.40
According to the Mayor’s Office of Criminal Justice, only
5 percent of all people discharged from Rikers Island in
2014 filled 44 percent of the jail’s beds because they each
spent over 270 days on Rikers waiting for disposition of
their case, prompting the Mayor’s office to launch an effort
to reduce case processing times and to allocate $17.8 million for pre-trial supervision programming.41 Clearly, had
case processing times not increased for persons with felony
charges, the declines in New York City’s jail population
would have been even greater.
As with state prison sentences, incarceration of persons
for drug offenses led the way in reducing the jail population
in New York City. From 1996 to 2016, there was a 73 percent decline in the number of people incarcerated in New
York City’s jails for drug offenses, which made up more
than half (52 percent) of the entire jail population decline
during that time period.
Unclassified offenses (e.g., warrant holds, violations,
loitering/prostitution, and missing cases) made up only 24
percent of the decline, and people held for violent offenses
accounted for only 13 percent of the decline. People incarcerated for property offenses comprised 5 percent of the
decline from 1996 to 2014, and those incarcerated for
driving while intoxicated comprised 6 percent of the
decline (Chart 18).
Formal probation supervision can be another route to
incarceration for some individuals insofar as failure to
abide by conditions of probation can result in jail or, less
frequently, prison terms. From 1996 to 2014 in New York
City, probation sentences and the number of people on
probation declined considerably, early discharges from
probation increased, face-to-face supervision decreased,
and probation violations were substantially reduced.
In 1996, 7 percent of felony cases and 0.7 percent of
misdemeanor cases were sentenced to probation, and in
2014, those rates were 4 percent and 0.3 percent, respectively. All told, the number of people sentenced to probation
declined by two-thirds from 1996 to 2014, declining from
16,285 to 5,313. An analysis by the State Division of Criminal Justice Services for this article found that the number
of people on probation in New York City declined by 33
percent between 1996 and 2015, compared to a 20 percent
decline in the rest of the state.

• OCTOBER 2016

Chart 18
Change in the incarcerated population by offense
type in New York City, 1996–2016

Chart 19
Felony and misdemeanor sentence dispositions in
New York City, 2014

(Source: New York City Department of Correction)

In addition to these court-driven changes, the New York
City Probation Department itself reduced the onerous
nature of probation and probation violations. In 1996, NYC
Probation reduced face-to-face supervision by initiating
monthly reporting to an electronic kiosk rather than more
frequent face-to-face supervision for low-risk and otherwise
deserving people on probation. Further, early discharges
from probation increased nearly six-fold between 2007 and
2012.42 A state analysis showed that only 3 percent of those
discharged early from probation in 2011 were reconvicted of
a felony within a year of discharge.
The Probation Department’s use of violations declined
significantly. Just between 2009 and 2013, probation violations declined by 45 percent.43 By 2013, only 3 percent of
people on probation in New York City experienced probation violations, compared to 11 percent in the rest of New
York State.44
Overall, in 2014, the number of felony and misdemeanor cases resulting in conditional and unconditional
sentences and fines exceeded the number sentenced to
probation, jail, and prison combined (Chart 19).
As such, as New York was becoming a safer city; its
courts were dismissing many more cases, and relying less
frequently on prison, jail, and probation, and more heavily
on fines and conditional and unconditional discharges.
VIII. Crime and Incarceration in the Nation’s Largest City

From the mid-1990s to the present day, New York City
experienced a well-publicized decline in crime that Franklin
Zimring has described as the ‘‘Guinness Book of World
Records Crime Drop,’’ exclaiming that the decline in crime
in New York was ‘‘so dramatic we need a new way of
keeping score.’’45
Less well-publicized has been the City’s dramatic and
simultaneous decline in incarceration—a decline we’ve
described in this paper. New York City’s dramatic

(Source: New York State Division of Criminal Justice
Services)

Chart 20
Combined jail and prison incarceration rate and
violent crime rate in New York City, per 100,000
residents, 1991–2016

(Sources: Federal Bureau of Investigation; New York State
Department of Corrections and Community Supervision;
New York City Department of Correction)

combined reduction in incarceration and crime has left it as
one of the safest and least incarcerated cities in the United
States. And while the City’s incarceration rate fell by 48
percent from 1991 to 2014, the violent crime rate fell by 73
percent (Chart 20).
Although it was not possible for the purposes of this
report to ascertain jail and prison populations for the
nation’s twenty largest cities, thanks to a recent on-line
source for county jail populations created by the Vera
Institute of Justice, we were able to calculate the jail

FEDERAL SENTENCING REPORTER

• VOL. 29, NO. 1

• OCTOBER 2016

33

Chart 21
Jail incarceration rates per 100,000 residents in
the nation’s 20 largest cities, 2014

Chart 23
Incarceration rates of people in state prisons and
local jails, per 100,000 residents, comparing New
York City with the rest of the United States, 1991–
2014

(Source: Vera Institute of Justice)

Chart 22
Violent and property crime rates in 20 cities and
the United States as a whole, 2014

(Source: Bureau Justice Statistics)

Chart 24
People in state prisons and local jails, comparing
New York City with the rest of the United States,
1991–2014

(Source: Federal Bureau of Investigation, Uniform Crime
Report)

incarceration rates for the counties containing the twenty
largest cities. As you can see from Chart 21, New York City
has the nation’s second lowest jail incarceration rate,
behind only Wayne County (Detroit), Michigan.46
Further, New York City had the lowest overall crime rate
of the nation’s twenty largest cities in 2014 (Chart 22).
Based on data like these, it would be hard to argue that
either New York City’s reduction in reliance on prison or
jail sentences, or its low combined incarceration rate, are
jeopardizing the public safety of the City’s residents. On
the contrary, while New York’s incarceration rate fell by 55
percent between 1996 and 2014, its violent crime rate fell
by 54 percent. This, at a time when incarceration in the
rest of the country and New York State continued to rise
(Chart 23).
In terms of sheer numbers, the contrast between New
York City and the rest of the nation is even more dramatic.

34

FEDERAL SENTENCING REPORTER

• VOL. 29, NO. 1

(Source: Bureau of Justice Statistics)

From 1991 to 2014, the City held 46 percent fewer people in
jail and prison, while the rest of the nation increased the
number of people behind bars by 34 percent. And although
national data is not yet available for comparison, the combined prison and jail population decline for New York City
reached 50 percent at the end of April 2016, down from its
highest level at the end of 1998 (Chart 24).
IX. What Does It All Mean?

Inspired by the refrain from New York, New York, ‘‘If I can
make it there, I’ll make it anywhere,’’ we believe that
a number of lessons can be drawn from the New York
experience with reducing prison and jail populations.
Lesson 1. A 50 percent reduction in the incarceration
rate is not an unrealistic goal (and advocates can help to get

• OCTOBER 2016

us there). Several criminal justice reform organizations and
advocates like Glenn Martin of JustLeadershipUSA,47 Van
Jones, CNN Commentator and founder of #Cut50,48 and
James F. Austin of JFA Institute,49 have urged that the U.S.
prison population be reduced by 50 percent. George Soros’
Open Society Foundation has granted the American Civil
Liberties Union $50 million to organize a campaign to cut
U.S. prison populations by half, a grant that has helped to
spur a left-right coalition to reduce mass incarceration.50
Whereas calls to reduce America’s incarceration rate by
50 percent may seem outlandish to some, our findings
support the notion that a 50 percent reduction in incarceration is not an unrealistic goal, at least for large American
cities. New York City’s experience also points up that
advocacy-driven decarceration efforts are more likely to
seek and win audacious goals—like a 50 percent reduction
in incarceration—than are technocratically driven
approaches.
As will be discussed, it will take yet more difficult policy
choices to reach a goal of a 50 percent reduction in the New
York State prison population as a whole. But the momentum toward decarceration has in no way abated in the City.
With sustained and vigorous campaigning by advocates to
address the other drivers of incarceration, efforts by the
Mayor’s Office, and major funding from philanthropies like
the MacArthur Foundation, we can expect to see more
progress in New York City in future years.
New York City is not alone in reducing its incarceration
rates while enjoying salutary impacts on crime. Over the
past two decades, a third of all states have experienced
prison population declines (see Chart 24). Moreover, from
2001 to 2013, juvenile incarceration rates across the United
States have fallen by 53 percent. The rate of juvenile incarceration fell in all but one state, and the rates in the five
largest states fell by nearly two-thirds during that time
period.51
Lesson 2. Less can be more when it comes to
incarceration and supervision. During this period of
sharply declining crime and incarceration in New York
City, New York’s judges, prosecutors and probation officials
made less use of prison, jail, and probation while increasing
their use of pretrial release, dismissals, adjournments in
contemplation of dismissal, conditional and unconditional
discharges, and fines—all sanctions whose connection with
incarceration is attenuated. In a national criminal justice
system awash in punishment and control during this time
period, the de-escalation of New York’s system stands out
as something for other jurisdictions to consider and for
researchers to delve more deeply into.
Not only are 2.2 million people in prison and jail in
America, but 4.7 million people—one in 54 adults—are on
probation or parole. Designed originally as either a frontend alternative to incarceration (probation) or a back-end
release valve for overcrowding (parole), community supervision all too often serves as a trip wire to incarcerate those
under supervision for trivial acts or technical, non-criminal
violations.52 Indeed, about one-third of prison admissions

are a result of parole violations,53 and in 2004, 330,000
people on probation were revoked for non-compliance.54
In 2014 in New York City, 32,696 (39 percent) of the
84,505 people arrested for felonies were acquitted, had their
cases dismissed, or were declined for prosecution, and
another 21,752 (26 percent) received fines and conditional
or unconditional discharges. By contrast, 18,159 (21 percent) were sentenced to jail, 6,442 (8 percent) were sentenced to prison, and 3,652 (4 percent) were sentenced to
probation. Dismissals, acquittals, declinations, fines, and
conditional/unconditional discharges were used almost
twice as frequently as prison, jail, and probation, combined.
Research has found that providing services and supervision to people who present a low risk of reoffending not
only wastes resources but can increase the likelihood of
rearrest, as informal forms of social attachment and control
are replaced by less effective government controls and
supervision.55 New York policy makers may have discovered that a justice system that reduces incarceration and
supervision in favor of informal, less intrusive dispositions
and community-based programs (discussed next) addresses
public safety in a less dehumanizing and more effective
manner.
Lesson 3. Programs may be having an impact, but they
need to be evaluated. Harder to document numerically than
the impact of changes in arrests, dismissals, and sentencing is the role played by community-based programs
designed to support justice-involved individuals and/or
divert them from incarceration. New York City has a wide
array of alternatives to incarceration, funded by federal,
state, local, and philanthropic dollars. Indeed, in FY2015,
the state and city budgets for New York City’s array of
alternatives to incarceration amounted to $12 million and
$11 million, respectively. The City also spent an additional
$18 million to fund the Criminal Justice Agency.
Although some research has found that some of New
York City’s alternative programs have had salutary impacts
on recidivism vs. matched jail inmates56 and have diverted
prison-bound defendants,57 no comprehensive, systemic
analysis exists on the impact of the City’s impressive array
of alternative programs on crime and incarceration. But
even if they did reduce crime and the likelihood of incarceration, most of those programs existed when the incarceration rates were much higher as well, so it is difficult to
tease out their impact on the City’s declining incarceration
rate. Clearly, this is an area in need of further study.
It is also possible that this robust program environment
helped to support formerly incarcerated persons so that
crime rates did not rise as incarceration rates declined. It is
also plausible that the combination of advocacy, retail
stakeholder education, and service provision that these nonprofit organizations engaged in influenced key decision
makers like judges, prosecutors, and probation authorities,
to make more parsimonious use of incarceration. Austin
and Jacobson58 suggest that this network of programs,
which existed in New York City but are neither as ubiquitous nor as focused on diverting people from incarceration

FEDERAL SENTENCING REPORTER

• VOL. 29, NO. 1

• OCTOBER 2016

35

statewide, may help explain why commitments to state
prison fell in the City but not in the rest of New York State.
Finally, it is common for management staff from these
programs to move back and forth between high-level government positions, spreading their influence in the halls of
power. Upper managers and/or board members of CASES,
the Center for Community Alternatives, the Center for
Court Innovation, the Center for Economic Opportunity,
the Fortune Society, and the Vera Institute of Justice have
served in key positions in City Hall at the Department of
Budget and in the Mayor’s Office of Operations, and as
Deputy Mayor, in addition to serving as Correction Commissioners and Probation Commissioners, and as Criminal
Justice Coordinator for New York City during the time
period covered by this essay.
X. Conclusion

If one were to characterize briefly the New York experience as distinct from the justice reinvestment strategy
described by Fabelo and Thompson, one might say that
New York’s unprecedented reduction in reliance on
incarceration has been a bottom-up, advocacy-driven,
community-focused strategy, as opposed to their topdown, technocratic, elite-consensus approach. In New
York, public officials and policy makers have been relentlessly pressured by vigorous demands from advocates,
organizers, and activists, who have also worked tirelessly
to educate the public about the need for a more humane
and effective criminal justice system. And some of those
same advocates traveled in and out of the corridors of
power, influencing the City’s system to make more parsimonious use of incarceration.
The experiences in California and New Jersey suggest
that a determined drug policy reform campaign is just one
effective arrow in the decarceration quiver. Strategic use of
litigation to spur a long-overdue devolution of correctional
responsibilities and costs to local authorities, or just to wake
up a slumbering parole board, can be highly effective. In
states where ballot measures and referenda are available,
they can be employed to make end-runs around obstinate
elected officials, provided they are accompanied by the
sophisticated, adequately funded political campaigns that
have succeeded in California.
New York City, New Jersey, and California have made
impressive progress toward reversing mass incarceration.
These three states have come to lead the nation in terms of
reducing reliance on incarceration, but each state has
accomplished this distinction using different decarceration
strategies over different time frames. What they all share in
common is that they won large reductions that corresponded with better-than-average declines in crime, proving that the level of public safety actually being provided by
mass incarceration may indeed be, as the National Academy of Sciences’ National Research Council has concluded,
‘‘highly uncertain.’’59
As states and localities look to downsize incarceration,
they may also need to bolster their community-based

36

FEDERAL SENTENCING REPORTER

• VOL. 29, NO. 1

services, supports, and opportunities to successfully absorb
people returning to communities from jail and prison, as
well as to increase confidence among court officials and
other system stakeholders that locking them up in the first
place may be avoided.
We hope that people in states where there is still plenty
of ‘‘low-hanging fruit’’ (e.g., people sentenced to jail or
prison for low-level drug and property crimes, or violation
of the requirements of community supervision) will find
encouragement in these three states’ accomplishments to
move more boldly along this trajectory. Our view is that,
judging from what has been accomplished so far in the
leading states, the necessary elements for success have
been bold reform agendas, organizational moxie, and
powerful public engagement.
But as enormous challenges remain, we look to the
three leading states to tackle yet more ambitious agendas.
Our prisons have become mental health institutions by
default. Sentences for people convicted of violent offenses
are grossly excessive, compared to such sentences in our
nation’s history and in other well-developed democracies.
Our zeal for mandatory sentencing enhancements, ‘‘truth
in sentencing,’’ and ‘‘three strikes’’ sloganeering must give
way to permit greater judicial discretion in dealing with
defendants as individuals. And we must foster a realization
among the public that if the goal is public safety, long
prison terms are far more costly and generally less effective
than treatment interventions.
These problems will not lend themselves easily to
technocratic top-down solutions. They will take years of
bottom-up advocacy, organizing, and public engagement
to effect systemic change and promote more effective and
humane solutions. But we are confident that the states
already in the lead will continue to struggle with these
challenges.
Notes
*

1

2

3

4

The authors would like to thanks the following people for
providing insights and data for this article: David Aziz, Director of Research, New Yok State Department of Corrections and
Community Supervision; Reagan Daly, Associate Research
Director, Institute for State and Local Governance, City University of New York; Brian Leung, Juvenile Justice Planner,
New York City Mayor’s Office of Criminal Justice; Freda Solomon, Senior Research Fellow, New York Criminal Justice
Agency; and Eric Sorenson, Director of Population Research,
NYC Department of Correction.
Pervaiz Shallwant & Mark Morales, NYC Officials Tout New Low
in Crime, but Homicide, Rape, Robbery Rose, Wall st. J., Jan. 4,
2016.
Franklin Zimring, How New York Beat Crime, Scientific American, Aug. 1, 2011.
Both crime and incarceration have continued to decline in New
York City to the present day, but 2014 is the most recent time
period for which national comparisons are possible. The FBI
Uniform Crime Reports indexes crimes in two categories:
violent crimes (aggravated assault, forcible rape, murder,
robbery) and property crimes (arson, burglary, larceny-theft,
motor vehicle theft).
Tony Fabelo & Michael Thompson, Reducing Incarceration
Rates: When Science Meets Political Realities, Issues in

• OCTOBER 2016

5

6
7
8

9

10

11

12

13

14
15
16
17
18

19

20

21

Science and Technology (Fall 2015), available at http://
issues.org/32-1/reducing-incarceration-rates-when-sciencemeets-political-realities/.
James Austin, Eric Cadora, Todd Clear, Kara Dansky, Judith
Greene, Vanita Gupta, Marc Mauer, Nicole Porter, Susan
Tucker & Malcolm Young, Ending Mass Incarceration: Charting a New Justice Reinvestment (2013), available at http://
www.justicestrategies.net/publications/2013/ending-massincarceration-charting-new-justice-reinvestment.
Fabelo & Thompson, supra note 4.
Id.
By contrast, the Annie E. Casey Foundation’s Juvenile
Detention Alternatives Initiative (JDAI), with its robust
emphasis on juvenile detention population declines, is an
example of an ‘‘insider’’ initiative that has achieved measureable juvenile detention population reductions in jurisdictions throughout the country See Chief Justice Earl
Warren Institute on Law and Social Policy, University of
California, Jdai Sites and States—An Evaluation of the
Juvenile Detention Alternatives Initiative: Jdai Sites Compared to Home State Totals (2012). JDAI focuses on juvenile pretrial populations, which are less influenced by the
kind of penal law restrictions, like mandatory minimums
and truth-in-sentencing laws, that contribute to adult prison
population growth. Last year, the MacArthur Foundation
launched its Safety and Justice Challenge to reduce jail
incarceration rates also with a strong emphasis on reducing
incarcerated populations by working with governmental
stakeholders—an initiative that is too early in its implementation to assess.
Allen J. Beck, U.S. Dep’t of Justice, Prisoners in 1999 (2000),
available at http://www.bjs.gov/index.cfm?ty¼pbdetail&
iid¼928.
Lynn Zimmer, Proactive Policing Against Street-Level Drug Trafficking, 9 Am. J. Police 43 (1990), available at http://www.
popcenter.org/responses/police_crackdowns/pdfs/zimmer_
1990.pdf.
State of New York, Division of Criminal Justice Services, New
York State Felony Drug Arrest, Indictment, and Conviction
Trends 1973–2008 (2010), available at www.criminaljustice.
ny.gov/pio/annualreport/baseline_trends_report.pdf.
Mary Beth Pfeiffer, Parole Denials Negate Crime Drop, Poughkeepsie J., Nov. 16, 2000.
Franklin E. Zimring, The City that Became Safe: New York’s
Lessons for Urban Crime and Its Control (2011).
Holly Catina. Politics of Drug Reform, N.Y. Times, May 26, 1999.
Zimring, supra note 13.
Id. at 116.
Id.
Judith A. Greene, Zero Tolerance: A Case Study of Police Policies and Practices in New York City, 45 Crime & Delinq. 171
(1999).
Queens College Professor Harry Levine has compiled marijuana arrest data since 1997. His analysis is available at
http://qcpages.qc.cuny.edu/*hlevine/.
In New York a felony may be prosecuted pursuant to the action
of a grand jury or by superior court information (SCI), which is
a written accusation by a district attorney filed in a superior
court. An SCI has the same force and effect as a felony
indictment. See NY Criminal Procedure Law § 200.15, http://
codes.findlaw.com/ny/criminal-procedure-law/cpl-sect-20015.html#sthash.LzE0J2HP.dpuf.
Data for indictments and FSIs earlier than 2006 is not
available from the New York State Division of Criminal Justice
Services.
National Center on Addiction and Substance Abuse at Columbia University, Crossing the Bridge: An Evaluation of the Drug
Treatment Alternative-to-Prison (DTAP) Program (2003),

22

23

24

25

26

27

28

29

30

31

32

33
34

35

36

37

38
39

40

available at http://www.centeronaddiction.org/addictionresearch/reports/crossing-bridge-evaluation-drug-treatmentalternative-prison-dtap-program.
Over the ensuing twelve years, the eligibility age was raised to
49 in three stages.
State of New York, Dep’t of Corrections & Community Supervision, Shock Incarceration 2007 Legislative Report (2007),
available at http://www.doccs.ny.gov/Research/Reports/
2007/Shock_2007.pdf; State of New York, Dep’t of Corrections & Community Supervision, Impact of 2009 Drug Law
Reform (2010), available at http://www.doccs.ny.gov/
Research/Reports/2010/DrugLawReformShock.pdf.
Email communication from David Aziz, Director of Research at
DOCCS, dated June 24, 2016.
State of New York, Dep’t of Corrections & Community Supervision, Earned Eligibility Program Summary Semiannual
Report: October 2015–march 2016 (2016), available at
http://www.doccs.ny.gov/Research/Reports/2016/EEP_
Report_Oct15-Mar16.pdf.
State of New York, Dep’t of Corrections & Community Supervision, Merit Time Program Summary, October 1997–
December 2006 (2007).
H.R. 3355, 103 rd Cong. (1993–1994), http://thomas.loc.gov/
cgi-bin/query/z?c103: H.R.3355.ENR.
Correctional Association of New York, The Elderly and Aging in
Prison, http://www.correctionalassociation.org/resource/
the-elderly-and-aging-in-prison#_edn4.
N.Y. Judge Slaps Soros-Backed Party, United Press Int’l, Oct.
15, 2004.
State of New York, Dep’t of Corrections & Community Supervision, Fact Sheet: 2009 Prison Closures, http://www.doccs.ny.
gov/FactSheets/PrisonClosure09.html.
State of New York, Dep’t of Corrections & Community Supervision, Press Release: Department of Corrections Details the
State’s Plan to Right-Size the New York’s Prison System, Feb. 5,
2014, http://www.doccs.ny.gov/PressRel/2014/Budget_
Testimony_2014-15.html.
Neil Barsky, Shut Down Rikers Island, N.Y. Times, July 17,
2015.
This is the time for which length of stay data is available.
These population totals include, in addition to felonies and
misdemeanors, a variety of other categories (people jailed
for violations or held on bench warrants, etc.). Length-of-stay
data for each category were not available.
Mary T. Phillips, Criminal Justice Agency, A Decade of Bail
Research in New York City (2012).
CJA’s recommendation process changed in 2003 so only
data from then until 2014, the most recent year available,
are reported here. Mary T. Phillips, Russell F. Ferri, & Raymond P. Caliguire, Criminal Justice Agency, Annual Report
2014 (2016).
People interviewed by CJA staff generally fall into three recommendation categories depending on their risk score:
Recommended for ROR (low risk); Moderate Risk for ROR;
Not Recommended for ROR (high risk). Mary T. Phillips &
Raymond P. Caliguire, Criminal Justice Agency, Annual
Report 2004 (2006); Phillips, Ferri, & Caliguire, supra
note 36.
Phillips, Ferri, & Caliguire, supra note 36.
The combined incarceration rate is the rate at which people
are in the custody of the City’s jail complex, combined with the
rate at which people are serving sentences imposed by City
judges in the custody of the state DOCCS.
These data are for individuals jailed both pretrial and postconviction. Lengths of stay for persons with misdemeanor
charges increased by 0.8 days, or 0.03 percent. Combined
lengths of stay for those with felony and misdemeanor charges
rose from 53 days to 55 days.

FEDERAL SENTENCING REPORTER

• VOL. 29, NO. 1

• OCTOBER 2016

37

41

42

43
44

45

46

47
48
49

50

51

38

New York City, Office of the Mayor, Mayor de Blasio Announces
$17.8 Million to Reduce Unnecessary Jail Time for People
Waiting for Trial, July 8, 2015.
New York City, Department of Probation, Do More Good: A Progress Report from the Nyc Department of Probation (2014).
Id.
State of New York, Office of Probation and Correctional Alternatives, State Probation Plan Data Summary (2013).
Joe Domanick, The New York ‘‘Miracle,’’ The Crime Report,
Oct. 16, 2011.
Whereas New York is city of 8.4 million made up of five urban
counties, Wayne County is a county of 1.8 million population
made up of urban and suburban areas, of which Detroit
accounted for 688,701 in 2013. Suburban areas tend to have
lower crime and incarceration rates.
See https://www.justleadershipusa.org/.
See http://www.cut50.org/.
James F. Austin, Reducing America’s Correctional Populations:
A Strategic Plan, 12 Just. Res. & Pol’y 1 (2010).
Erik Eckholm, A.C.L.U. in $50 Million Push to Reduce Jail Sentences, N.Y. Times, Nov. 6, 2014.
Pew Charitable Trusts, Juvenile Commitment Rate Drops 53%,
November 9, 2015, http://www.pewtrusts.org/en/
multimedia/data-visualizations/2015/juvenile-commitmentrate-drops-53-percent.

FEDERAL SENTENCING REPORTER

• VOL. 29, NO. 1

52

53

54

55

56

57

58

59

Ronald P. Corbett, Jr. The Burdens of Leniency: The Changing
Face of Probation, 99 U. Minn. L. Rev. 1697 (2015).
P.M. Guerino et al., U.S. Dep’t of Justice, prisoners in 2010
(2011), available at http://www.bjs.gov/content/pub/pdf/
p10.pdf.
Pew Center on the States, When Offenders Break the Rules:
Smart Responses to Parole and Probation Violations 3 (Nov.
2007), available at http://www.pewtrusts.org/*/media/
legacy/uploadedfiles/pcs_assets/2007/
when20offenders20break20the20rulespdf.pdf.
Harvard Kennedy School Program in Criminal Justice, Executive Session on Community Corrections, Consensus Paper
(forthcoming).
Juka Savolainen, Criminal Justice Agency, The Impact of Felony Ati Programs on Recidivism (2003).
Mary T. Phillips, Criminal Justice Agency, Estimating Jail Displacement for Alternative-to-Incarceration Programs in New
York City (2002).
James F. Austin & Michael Jacobson, Brennan Center for Justice, How New York City Reduced Mass Incarceration: A Model
for Change? (2013).
Comm. on Causes and Consequences of High Rates of Incarceration, Nat’l Research Council of the Nat’l Academies, The
Growth of Incarceration in the United States: Exploring Causes
and Consequences (2014).

• OCTOBER 2016