A Researcher’s Perspective on COVID-19, New York Bail Reform, and Pretrial Justice

A Q&A with Tiffany Bergin, Deputy Director of Research at The New York City Criminal Justice Agency

As the COVID-19 public health crisis continues to escalate in the United States, jurisdictions across the country are passing reforms decarcerating jails and prisons to curb the spread of the virus. In New York, this need is becoming more acute as detention centers in the state are seeing spikes in positive tests for coronavirus. New York also happens to be one of the places that, before the crisis, had already taken important strides in reforming its pretrial justice system: On January 1st, Gov. Andrew Cuomo signed one of the most ambitious criminal justice reform bills in the country, overhauling the state’s pretrial practices and all but eliminating the state’s use of cash bail. As the movement towards bail reform takes on even more urgency during COVID-19, we are spotlighting some of the research work assessing the impact of New York’s legislative action.

We sat down with Tiffany Bergin, who is leading research on courtroom decision-making and the direct impact of pretrial detention at The New York City Criminal Justice Agency (CJA), a government-funded nonprofit that provides pretrial services to New York City’s five boroughs. Since New York’s bail reform, CJA is drawing on its expertise to help the state’s 57 other counties develop similarly robust pretrial service programs as part of a project by the National Partnership for Pretrial Justice. In this reflective moment for the reform, we chatted with Bergin about the role of research in pretrial justice, demonstrating “justice in practice,” and the need for transparent, data-driven and evidence-based criminal justice practices.

NPPJ: Can you tell us about your work with the New York City Criminal Justice Agency?

TIFFANY BERGIN: The New York City Criminal Justice Agency (CJA) is the main pretrial services agency for New York City and I am the Deputy Director of Research. It’s interesting work because CJA has a long history of producing quite groundbreaking research on pretrial justice issues, but we’re primarily an operational agency. If you go to our website, you’ll see that we’ve published many reports over the past few decades on topics like pretrial release and bail, court date notification, juvenile justice, and tons of other topics and today our research team has over a dozen people. However, primarily we’re an agency that’s performing on-the-ground operational work. The majority of the staff members at CJA are not researchers.

Instead, they’re doing things like working to notify defendants of upcoming court dates. They’re helping to produce our release assessments to give to the court. They’re operating our supervised release program in the borough of Queens—and more. One thing I find quite interesting about our work at CJA is I’m a researcher within an operational agency, so I have the chance to learn from colleagues with a wide variety of expertise and I get to see first-hand how research is actually translated into practice on the ground, which is really exciting to see.

NPPJ: Can you talk about your and/or New York City Criminal Justice Agency’s role in New York’s landmark bail reform?

TB: It’s so interesting that given this global crisis and all that’s on our mind right now that thinking back just a couple of months, or even a few weeks ago on January 1st, legislation went into effect in New York State that did something quite dramatic—it eliminated cash bail for most misdemeanor and nonviolent felony charges. This is a really interesting moment to be a researcher working in the pretrial field and it’s particularly interesting to be in New York City at this time.

I think it’s important for CJA to maintain New York City’s quite high rates of court appearance. If you look at data from just a few years ago for example, some other work that colleagues of mine have done has shown that in New York City, defendants in only 7% of cases fail to appear and don’t return to court within 30 days. That’s very low, meaning we have a very high rate of court appearance in New York City. So, I think it’s a really important moment for CJA to help maintain New York City’s high rates of court appearance.

Another interesting thing I can say as well—and I think this is something CJA can really add to the conversation and research at CJA can really help us see—is that even before bail reform went into effect January 1st, the use of money bail in New York City was already dramatically declining. Some research by some of my colleagues shows that the percentage of continued cases in which bail was set at arraignment declined from a high of 48% in 1990 to just 23% in 2018. That’s a 25% decrease from 1990 to 2018—long before bail reform was ever adopted.

NPPJ: How has New York City Criminal Justice Agency been responding to COVID-19 in New York City?

TB: COVID-19 is a very challenging time for everyone, and it’s caused such global disruption, and has obviously caused disruption in New York City. I’m very proud of our outreach team at CJA, who have been contacting individuals about their rescheduling of court dates. We also have a whole team who run a helpline that individuals can call with questions and I think that’s been really helpful to individuals particularly at this difficult time. I know we’re doing a lot of other work as well, but I’m not quite as well placed to on some of that given that I’m on the research team.

NPPJ: Pandemic or no pandemic, what are the disadvantages of being detained pretrial?

TB: I think there is a quite significant and fast-growing body of research showing that pretrial detention can trigger quite important consequences for individuals—in particular, there is a lot of research examining the criminal justice consequences of being detained pretrial. There is work showing that being detained pretrial can increase a defendant’s likelihood of conviction as well as increase a defendant’s likelihood of receiving a jail or prison sentence. For defendants that are later released, there is work showing that pretrial detention can raise the risk of failure to appear before trial and even increase the likelihood of recidivism after disposition.

It’s kind of interesting because investigating these impacts of pretrial detention has a lot of historical resonance for CJA. In the 1960s, researchers from the Manhattan Bail Project, which was conducted by the Vera Institute of Justice, concluded that pretrial detention could unfavorably affect the severity of case dispositions, so it could have criminal justice consequences. And it’s interesting because this Manhattan Bail Project from the 1960s actually laid the groundwork for a lot of pretrial services in New York City and really laid the groundwork for the services that now CJA provides. And thinking ahead a little bit, 30 years later in the early 2000s, my predecessor here at CJA, Mary Philips, quite a distinguished researcher in the field of pretrial justice, continued this line of work. She did another landmark study finding that pretrial detention can increase a defendant’s likelihood of conviction, as well as the chance that a convicted defendant can receive a jail or prison sentence. So, these are certainly some of the impacts we see in the criminal justice realm. One of the other things that our project with Arnold Ventures is looking at is the collateral consequences of pretrial detention.

I’ve talked about the criminal justice consequences—how it affects the likelihood of conviction or sentence. Another important aspect, of course, is looking beyond just the criminal justice outcomes to ask: How can pretrial detention impact an individual’s employment, housing, and family? There’s a little bit of work on the collateral impact side of things, but not quite as much. I think this is an area that needs more research, and that’s something we’re hoping to contribute.

NPPJ: Why do you believe in pretrial justice?

TB: It’s interesting because at CJA, we often like to say that we demonstrate “justice in practice” and I really like that theme because I feel that at CJA I’m part of this very talented research team working on many projects, but we’re also within this larger operational agency where we have the real chance to put research into practice. I’ve always been very interested in finding ways to help evidence and research inform practice and policy and particularly in the realm of pretrial justice, there’s a lot of attention on that area now. And so I feel really excited to be in a place where we might be able to demonstrate justice in practice in all our work and find ways to better evaluate outcomes, provide data and findings that are helpful to individuals who are actually practitioners working on the ground, and help promote evidence based policy in this area.

NPPJ: What does pretrial justice look like to you? What do you think it takes to achieve pretrial justice?

TB: Obviously, it’s a difficult question to answer. It will mean different things to different people. But I think that there’s clearly an element of treating individuals fairly, focusing on improving court appearance, respecting the presumption of innocence, and using research to evaluate outcomes and promote evidence-based practice. At CJA, our mission is about reducing unnecessary pretrial detention. I think that, as I said earlier, justice in practice is a large part of that work. So, it’s hard for me to crystalize one specific definition of what pretrial justice means and how we get there, but I think all these notions play into it.

NPPJ: Are there particular pretrial reforms, initiatives, or research that you’re excited about?

TB: There’s so much uncertainty right now, but there are a few themes that I think are important and regardless of what the current global situation might be. One interesting thing to me is transparency in data and making sure that we have an open dialogue between researchers and the public, particularly in criminal justice. One initiative I can talk about in regard to that would be our Case Analysis Tool. The Case Analysis Tool allows anyone who’s interested to explore aggregate data on prosecutorial data on cases in New York City. This is an interactive data visualization that I think is an important part of our commitment to data transparency and supporting data-driven analysis of pretrial issues. One important development would be increasing transparency and helping to promote data-driven and evidence-based practices.

NPPJ: Anything else you want to talk about?

TB: We at CJA are really excited to be one of the partner organizations of the National Partnership for Pretrial Justice. We’re really grateful to be part of these conversations and I’m really honored to be representing some of the great work that CJA’s research team has done on the issue of impacts of pretrial detention.

I would like to encourage people to take a look at the research section of CJA’s website, because we have tons of really important and interesting research on there—some going back decades and some really recent—and all on really key topics in pretrial justice. CJA has a long and storied research history that I feel very honored to be a part of and I really would encourage anyone who’s interested to take a look. They could be quite useful for other jurisdictions as well.