Cost of Discretion

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Cite as: Oren, Oded, Topaz, Chad M., & Oliva, Courtney M. (2023). Cost of Discretion: Judicial Decision-Making, Pretrial Detention, and Public Safety in New York City. Scrutinize, Institute for the Quantitative Study of Inclusion, Diversity, and Equity, Peter L. Zimroth Center on the Administration of Criminal Law.

Key Findings

  1. An analysis of public pretrial data from 2020 – 2022 reveals that some New York City judges are disproportionately carceral, i.e., these judges are substantially more likely to order pretrial detention than their peers, even when accounting for factors such as the severity of the case and the defendant’s prior criminal history.
  2. The fourteen judges who exhibited the most carceral discretion compared to their peers are Felicia Mennin, Gerald Lebovits, Quynda Santacroce, Josh Hanshaft, Kerry Ward, Bruna DiBiase, Gerianne Abriano, Beth Beller, Phyllis Chu, Alan Schiff, Tara Collins, Derefim Neckles, Joseph McCormack, and Lumarie Maldonado-Cruz.
  3. These fourteen judges’ disproportionately carceral decisions over 2.5 years resulted in an estimated 580 additional people detained, 154 additional years of pretrial detention, and over $77 million of additional costs borne by New York City taxpayers.

Key Conclusions and Recommendations

  1. Closer scrutiny of judges’ bail decisions is crucial because of the link between pretrial detention and increased recidivism rates, exacerbated racial disparities, and influence over case outcomes.
  2. New York (and other jurisdictions) must evaluate whether judicial discretion should be constrained given that legislative efforts to reform bail have not prevented some judges from exercising discretion in disproportionately carceral ways.
  3. New York lawmakers should consider the following approaches to constraining disproportionately carceral judges:
    • Making additional judge-level data publicly available to all New Yorkers.
    • Removing disproportionately carceral judges from overseeing criminal cases.
    • Limiting judges’ discretion to detain, including by mandating release from detention upon the preparation of a release plan by holistic teams of experts.