Introduction 

Most studies of bail and release decisions at first court appearance have relied on statistical analysis of official court data including, for example, the severity of the charges, details of any criminal history and, perhaps, some characteristics of the persons facing criminal charges. In contrast, Mary Phillips ground-breaking work examined the negotiations between the decision-makers at arraignments in Criminal Court through in-person courtroom observations. The Arraignment Observation Project began as a pilot program in 2001 and 2002 with CJA researchers observing arraignments in Manhattan courtrooms. The pilot program demonstrated that the observations could yield useful data. Some of the observation data showed considerable potential in explaining why charged persons with similar criminal records who were facing similar charges did not always receive the same outcomes in terms of release and bail setting. The pilot was so promising that the project was extended to include Brooklyn as well as Manhattan and the researchers were frequently granted permission to sit next to the judge at the bench instead of in the audience, which resulted in enhanced audibility of the proceedings.

The Court Observation Project, which began in 2017, expanded the initial project by employing CJA’s trained Pretrial Associates (PTAs) to observe arraignments citywide. Since the current Court Observation Project commenced, CJA implemented a revised release assessment in 2019{²}[Peterson, Richard. Brief No. 46: CJA’s Updated Release Assessment. September 20, 2020], and changes were mandated by NY State’s 2020 bail reform law and subsequent amendments{³}[Rodriguez, Krystal and Rempel, Michael. “Explaining New York’s 2023 Bail Reform Amendments.” May 2023.]. In light of these changes, we focus on recent findings, comparing observation data collected from October 2022 through March 2023 to findings in the 2004 report.

About Arraignment

An arraignment is an adult’s first appearance in Criminal Court following an arrest. Many cases are disposed at that hearing, either by plea, dismissal, or other resolutions. The remaining cases are adjourned (also referred to as continued), which means that a next court date is set for a follow-up hearing. The arraigning judge must decide whether to release the person with no conditions (release on recognizance, referred to as ROR), set some conditions such as supervised release, remand the person to pretrial detention with no bail set, or to choose an amount of money bail that the person must post to secure pretrial release. The judge makes the pretrial release decision with input from the prosecutor (also referred to as the assistant district attorney or ADA), the defense counsel, and the CJA release recommendation.

Arraignment Observation Study Findings 2004

The central finding of the 2004 study based on roughly 2,000 observed arraignments in Manhattan and Brooklyn between September 2002 and March 2003 is that the prosecutor dominated release and bail decisions:

The prosecutor bail request was the most powerful predictor of both ROR and, if ROR was not granted, of the amount of bail set.
The CJA release assessment (RA) recommendation had a small but significant effect on the ROR decision even though it had no effect on the prosecutor request nor on the amount of bail set.
The severity of the charge persons faced (“charge severity”) primarily affected prosecutor requests for bail.
In addition to the severity of the charge, whether the person had previously failed to appear at a scheduled court date was an important determinant of the prosecutor consent to ROR.
When the prosecutor request conflicted with the CJA release recommendation, the judge was more likely to side with the prosecutor, especially in the uncommon situation when the prosecutor favored ROR but the CJA release assessment did not.

October 2022 to March 2023 Court Observation: Changes Since 2002 to 2003

A lot has changed in the justice landscape in the twenty years since the data was collected for the 2004 Arraignment Observation Study.

First, as mentioned above, the release assessment (RA) recommendation used by CJA was revised in the fall of 2019. Both recommendation systems are based on empirical research identifying objectively measured factors that are associated with failure to appear (FTA). In other words, both employ a validated point scale system to evaluate the likelihood that individuals, if released, will appear for subsequent court dates. The largest difference between the RA in effect in 2002 to 2003 and the current RA, at least for purposes of comparing arraignment court observation outcomes, is that the current release assessment (RA) is scored more leniently when the arraignment charge is a misdemeanor or non-violent felony and is more restrictive when the charge is a violent felony offense (VFO). Notably, the updated RA can recommend “Consider all options” which can include an outcome of supervised release, or release under supervision (RUS). Both the release assessment recommendation of “Consider all options” and an RUS outcome were not available at the time of the original Arraignment Observation Study.

Second, NY State’s bail reform law and its amendments{⁴}[Rodriguez, Krystal and Rempel, Michael. “Explaining New York’s 2023] Bail Reform Amendments.” May 2023. eliminated the use of cash bail for nearly all misdemeanor cases and most cases with non-violent felony charges, thus enabling most persons to be released with no restrictions, under supervision, or with electronic monitoring. In 2002 to 2003, persons facing criminal charges in NY State could be detained pretrial or released on recognizance (ROR) or on bail. In both time periods, the amount of bail when set is at the discretion of the judge.

October 2022 to March 2023 Findings and Comparison to 2002 to 2003

CJA Pretrial Associates (PTAs) observed 16,602 arraignments for Summary arrests (those held in custody from arrest to arraignment) that were continued (not resolved) at arraignment across the boroughs in the six-month research period{⁵}[In contrast to Summary arrests, persons issued Desk Appearance Tickets (DATs) are released at arrest and are given appointments for arraignment at a future date.]. Since the 2004 study was conducted in Brooklyn and Manhattan, only the 8,134 observations in those boroughs are included in the comparisons presented below.

Also, considering changes in the CJA release assessment recommendation and those due to implementation of NYS bail reform, the findings are presented separately for cases with violent felony charges (VFO), other felony charges and misdemeanor (or lesser) charges. Thus, the findings for 2002 to 2003 are a re-analysis of the 2004 findings.

CJA Release Recommendation

The CJA release assessment recommended ROR in just over eight of every ten cases observed in Brooklyn and nearly seven of every ten in Manhattan in 2022 to 2023, much higher than the 66% in Brooklyn and 53% in Manhattan recommended for ROR under the assessment system in place during the earlier project (Figure 1). The proportion of cases recommended for ROR was higher in Brooklyn than in Manhattan for each charge severity category in both time periods and was also higher in 2022 to 2023 than in the previous period for each charge severity category.

As previously mentioned, in 2022 to 2023 the CJA release assessment can recommend “Consider all options” when the client does not qualify for a recommendation for ROR. “Consider all options” was recommended for 6.5% in Brooklyn and 8.5% in Manhattan (data not shown).

2004 Research

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