Testimony of New York City Comptroller Brad Lander to the Committee on Criminal Justice on the Department of Correction FY 2023 Budget

Good afternoon, and thank you Chair Rivera, Members of the Committee on Criminal Justice, Council Members and staff for the opportunity to testify today.  

We are here at a critical moment for the Department of Correction, for those working and detained at Rikers Island, and for our city. Last September, in response to high levels of violence, staff absenteeism, and immediate risks to the safe management of jail facilities, the City declared a state of emergency for the Department of Correction. Last week, the independent federal monitoring team in the Nunez case released a special report, offering the latest grim window into the dysfunction and violence within our City jails. In just the last few days, George Pagan and Herman Diaz became the second and third individuals in DOC custody to die this year after 16 people died in their custody last year, the most in many years. 

I am here today, as the City’s Chief Financial and Accountability Officer, to make clear that the ongoing crisis in our jail system continues in spite of outsized resources, and will not be solved by increased funds – or by the addition of more uniformed officers to DOC’s already outsized headcount. As annual reports from the Comptroller’s office have shown, spending per person continues to grow and now totals more than half a million dollars per person in custody per year. Yet violence continues to climb. The problem isn’t a lack of resources, it’s how those resources are being managed.  

The Department of Correction has been on the Comptroller’s Watch List for years, and this morning, we released our most recent update. The Watch List spotlights agencies that raise serious budgetary and operational concerns. Here is some of what we found: 

• Chart 1 in our analysis shows that for the first time in four years, the DOC budget is forecast to increase in FY 2022. At the time of adoption, the budget was projected to fall by 6%, but revisions since adoption have resulted in a projected 7% increase over FY 2021. 

• While DOC overtime had generally been declining over the past few years, as shown in Chart 6, for the first seven months of FY 2022, uniformed overtime was 71% higher when compared to the same period two years ago. My office projects that overtime costs will exceed the City’s current assumptions by $67 million in FY 2022 and $49 million in FY 2023. A significant part of that overtime, we believe, are DOC staff forced to work double and triple shifts because their colleagues are unavailable to work. 

• Chart 7 shows that prior to FY 2020, the annual paid absence rate for uniformed staff at DOC averaged between 5% and 7% – close to the rates at the Fire Department (FDNY) and the Department of Sanitation (DSNY). However, while absences have grown at all uniformed agencies since the start of the pandemic, in the first four months of FY 2022 (July-October 2021), DOC’s uniformed absentee rate skyrocketed to 27%, far surpassing the 10% rate at FDNY and the 11% rate at DSNY. 

• Rates of violence have increased, as shown in Charts 9, 10, 11 and 12. The number of slashings and stabbings has more than tripled in the current fiscal year, and use of force incidents and allegations have also reached record highs in recent months. In the final quarter of FY 2021, the rate of use of force, adjusted for the jail population, was 81% higher than the same quarter in FY 2019 and triple the rate in FY 2017. 

• The provision of services to people in custody has deteriorated. Chart 15 shows that as the share of uniformed officers newly calling out sick last summer increased, the number of incarcerated individuals not produced for medical appointments rose to over 15,000 in July 2021, up from around 2,000 in June 2020. 

Given this harrowing reality, reform is urgent. Simply adding new uniformed officers to the rolls, while a quarter of Correction Officers don’t report to work will not reduce violence, save lives, or restore safe functioning to the system. DOC leadership must adopt new staffing policies that address the absentee crisis. To start, the Department should immediately comply with the federal monitoring team’s latest recommendations, including and especially the appointment of an external staffing manager with the authority to address and change the dysfunctional staffing practices.  

Like Chair Rivera, my office has requested and been promised information on staffing from DOC. I appreciate the Department’s assistance with this request and look forward to reviewing the information DOC has committed to provide. 

Bail reform 

Given the recent the current debate in Albany about rolling back bail reform, yesterday my office released a report charting trends in bail made and set in the city since 2019. The conversation on bail reform has become divorced from the data. In order to invest wisely in strategies that will keep our communities safe, it is critical to follow facts, rather than fear.  

While rising crime rates and several high-profile violent cases in recent months have understandably alarmed New Yorkers, the evidence on bail reform is clear: the numbers show essentially no change in pretrial arrest rates. Before bail reform, in January 2019, about 5% of the 57,000 people awaiting trial in the community were rearrested on a new charge that month. After the reforms took effect, in December 2021, about 4% of the 41,000 people awaiting trial in the community were rearrested. As Chart 10 of our bail report shows, over the past three years, before and after bail reform, regardless of bail or other pretrial conditions, each month fewer than 5% of people who were awaiting trial in the community were rearrested on a new charge – and fewer than 1% of people were rearrested on violent felony charges. 

Instead, we found that while the number of people subject to bail has substantially declined, bail continues to drive pretrial incarceration and syphon money from low-income communities of color. Defendants and their friends and family still posted $268 million in bail in 2021, up from $186 million in 2020.  Despite new requirements to consider a defendant’s ability to pay, average bail amounts have doubled from $19,162 in 2019 to $38,866 in 2021. Commercial bonds, which require nonrefundable fees, continue to be widely used, despite the fact that judges are required to set three forms of bail, including less onerous partially secured and unsecured bonds. 

Over 2020 and 2021, only roughly half of defendants who had bail set were able to eventually make bail, and even most of those who did were incarcerated for at least some amount of time before doing so – at great cost to themselves, their families, and the city.  

What does the evidence point toward? To start, we must reject rollbacks to bail reform. Making additional charges eligible for bail and further rolling back the hard-won reforms is not a real solution for violence but rather a means for syphoning money from vulnerable communities and jailing those too poor to make bail, as our analysis showed. 

Instead, I urge the New York State Office of Court Administration (OCA) to provide guidance, training, and instructions to judges on the mandates to assess a defendant’s ability to pay and use the least restrictive condition in setting bail. 

Crime rates have risen in New York City, as they have in cities across the country where no changes in bail policy were adopted. We do need a thoughtful debate and real action to address it, including investments in community-based violence interruption programs, evidence-based mental health services, supportive housing, and programs that get guns of the street. But since bail reform is not the cause of the increase, rolling it back will not advance public safety; it will only decrease justice.  

Are We Still on the Path to Closing Rikers?  

Finally, I want to turn to a critical long-term question facing this Council: Are we still on the path to close Rikers?  

In 2019, after years of advocacy and debate, this Council took action in 2019 to put NYC on a path to close Rikers Island. As you know, that plan is to replace Rikers Island facilities with four new jails with combined capacity of 3,300 by the end of 2027. As a member of this body who marched alongside advocates highlighting the deplorable conditions on the Island, I voted for that plan, and I continue to believe it is the best path forward towards a smaller, safer, and more just system. 

It is not currently clear whether the City is on track to achieve that goal.  

The average daily jail population declined steadily from 2007 to 2020. Following the implementation of bail reform and a concerted effort to reduce the jail population at the start of the pandemic, the jail population dropped below 4,000 in April 2020. But since then, following rollbacks in bail reform and rising crime rates, the average daily jail population was around 5,700.  It will require a more than 40% reduction in the average jail population to meet the capacity limits of the new jails, if and when they are built.   

Without a clearer commitment from the City and action now, I fear we will reach 2027 with crumbling facilities on Rikers still open, and more people incarcerated than new facilities can hold.  

If we are to make good on the plan to close Rikers, and reduce incidences of violence in the jails in the immediate term, we must take steps now to limit the number of people in custody. That’s one more reason while rolling back bail reform is bad public policy. It will lead to more people being detained awaiting trial, and make it harder to reach that goal.  

We must also prioritize far speedier disposition of criminal cases. Data released by the Mayor’s Office of Criminal Justice show a dramatic decrease in court productions, leaving individuals to languish on Rikers for longer periods of time before their cases are resolved. Effective deployment of available DOC staff is critical to achieving this.  

Detention should be used as a last resort and not as a substitute for appropriate mental health care, substance use treatment, or safe housing. That means expanding access to alternatives to detention and incarceration, especially for felony cases, for individuals who can remain safely in their communities. And it requires far deeper investments than those we have traditionally made – investments in supportive housing, year-round youth employment opportunities, peer-led crisis response and community-based mental health services. I urge the Department and the Council to look back to the recommendations of the Lippmann Commission, the Commission on Community Reinvestment and the Closure of Rikers Island, and the new work of Vital City. And I urge you to support your counterparts at the State level to enact smart harm reduction policies like the Treatment Not Jail Act, which would increase access to care and ensure the Department of Correction does not remain the largest de facto mental health services provider in the city. 

Advancing the vision of a smaller, safer and fairer jail system remains one of the City’s most pressing challenges and will necessitate collective action on the part of all criminal legal system stakeholders. It will take everything, from community investments that prevent crime, to ending the torture that is solitary confinement, to better compliance with our bail laws to consider defendants’ ability to pay, to reduce the jail population, close Rikers Island, and curb the violence in our jails. 

Thank you for the opportunity to testify, and for your work to address this humanitarian crisis.  

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