NIJ Audio Transcript: Reforming New Orleans' Criminal Justice System: The Role of Data and Research

Introduction by NIJ Director John H. Laub

John Laub Good morning. I'd like to get started. Good morning and welcome to today's installment of the Research for the Real World. This is NIJ's translational criminology seminar series, and this is the kickoff for the fall season. My name is John Laub and I'm the Director of the National Institute of Justice. I want to thank you all for being here this morning.

As you know, today's presentation, titled "Reforming New Orleans' Criminal Justice System: The Role of Data and Research," will feature Dr. Michael Jacobson from the Vera Institute of Justice. In this presentation, Dr. Jacobson will discuss the organization's work with the City of New Orleans, how they track vital criminal justice statistics, and how they use this empirical information as the basis for policy reform, development and implementation following Hurricane Katrina.

Now, it is my pleasure to introduce Dr. Michael Jacobson. Dr. Michael Jacobson joined the Vera Institute as the fourth director in January 2005. He's a sociologist by training with a career that spans both academia and government service. He's taught at John Jay College of Criminal Justice in the Graduate Center of the City University of New York. In addition, Dr. Jacobson has served the City of New York as corrections commissioner, probation commissioner and deputy budget director. In October 2010, Dr. Jacobson was appointed to the New York State Permanent Sentencing Commission by the chief judge of New York State. Given Dr. Jacobson's experience as both a researcher and a practitioner, I'm sure he will speak to the heart of translational criminology and how to use research to inform practice in policy, indeed the reason that this lecture series exists. Through telling us how he used data in research to improve the criminal justice system in New Orleans, I hope all of us will gain useful information that we could in turn take back to our agencies and organizations.

Now it's very rare that the Research for the Real World is able to attract somebody who is not only a strong academic, a strong person with respect to policy and practice, but also somewhat of a media rock star. For those of you like me that watch C-SPAN, Michael appeared on C-SPAN in — let me get the dates right here — February 13th talking about state prison funding. On May 4th, 2012, he also appeared on C-SPAN, along with James Lynch from the Bureau of Justice Statistics, talking about U.S. prison population trends. Finally, most of all, he appeared on April 22nd on the CBS Sunday Morning News talking about the costs of prison. I understand there's a film in the works for the fall and who knows what else and maybe he'll be at the film festival in Colorado next year. So with that: Michael Jacobson.

Presentation by Michael Jacobson

Michael Jacobson Thank you, John, and good morning, everybody. Thanks for having me here. I'm just going to get my notes. This will be probably in some ways not quite the usual talk that's given in these series I think for a couple of reasons. One — obvious one — I'm not going to use PowerPoint. You're welcome. And two, I decided to talk about our work in New Orleans for a few reasons, hopefully some of which will be obvious by the time I end my talk.

Vera's an interesting place. We do work all over the country. We do some very rigorous sort of social science research, technical assistance. We have projects that, from a research point of view, are certainly more sophisticated than the empirical work we've done in New Orleans. And I'm going to talk a little about, just from a comparison point of view, some of the work we've done in Los Angeles, which is a more really sort of rigorous, huge administrative data sort of research project. But one of the reasons I decided to talk about New Orleans even though the pure research work we've done there doesn't measure up to sort of peer-review kind of research, it is a really interesting mix of sort of policy work, technical assistance, on-the-ground facilitation and research all in the sort of furtherance of moving reform in New Orleans.

So I'm going to try to do a few things in this presentation. And I know we have 90 minutes. I plan to talk for all 90 of those minutes. I'm not taking any annoying, difficult questions. I'm going right to the end. No, OK, not really. I'm going to make a case certainly for projects like New Orleans that for the kind of work we do, for that sort of research and data analysis we've done, certainly in that sort of context, that that work — the research in and of itself is a necessary, but not remotely sort of sufficient part of moving along reform. Incredibly important, certainly in a case like New Orleans, to use that research in the context of a very long history, some really interesting longstanding politics, you know, criminal justice system that evolved out of the Napoleonic code and just providing research, just talking about research. Again, hugely important, but would never, ever be enough to sort of move that along. And again, that's in the context overall of a criminal justice system largely — certainly on the corrections and policy and punishment side — that's been immune to research for decades. I mean, if we had a system that was based on research, it wouldn't look like the way it looks now. So that's beginning to change largely, research- and evidence-based, and you can't shake a stick at a state legislature now without hearing about evidence-based programs. It's not all good, but it's mostly good. It's nice that the field is paying attention to evidence, but in the last 40 years the field of criminal justice policy does not have a vainglorious history of being driven by research. But again, I think that's certainly changing over the last decade or so and I think will change for the better even more going forward.

I'm going to talk a little about the research, the context we did that research in, in New Orleans. I'm going to compare it a little to Los Angeles because we've done pretty significant and substantive work and ongoing work in both those cities. Some interesting commonalities and some differences. Then I'll sort of end with at least for Vera what have been some of the lessons in doing that work.

First though, I think it probably makes sense to give you some context of how we appeared in New Orleans in the first place and what the sort of environment was for us doing the work we do and how we did it. Let me just do a few minutes of that sort of backdrop narrative that would give you some sense as I start to yack about this more of how we wound up there and what we do.

Right after Katrina — literally in the couple of months after Katrina — I got a phone call from a guy who was a newly-elected city council person. His name was James Carter. He's now the criminal justice coordinator in New Orleans. He's the highest official that works for Mayor Landrieu on criminal justice issues. But in 2006, he was a newly elected councilperson, and one of those folks — he was a defense attorney and Katrina helped sort of politicize him, as it did a number of folks in New Orleans. When he came on to the council, he sort of quickly realized both substantively and politically he needed an issue. He needed something that was going to sort of distinguish him somehow, and he quickly realized that that issue for him was going to be criminal justice.

He called me and he sort of introduced himself. Some of you I'm sure may have met him. He's a very interesting, very charismatic guy and he sort of launched into this speech about how he was a new councilman, how he was going to be in charge of the criminal justice committee for the city council of New Orleans. While there was all this pressure in New Orleans to rebuild and to rebuild to levels of pre-Katrina and housing and infrastructure, he was determined that New Orleans not rebuild to the criminal justice system that operated New Orleans pre-Katrina. Trite as it may be, that Katrina really was an opportunity to sort of reimagine and reform its criminal justice system and he was going to take the lead.

From his point of view, the president of the United States wasn't dealing with that issue, the governor of Louisiana wasn't dealing with that issue, the then-mayor of New Orleans wasn't dealing with that issue, and so he was going to deal with it. He was going to get it done and he was going to reform it. He gave this 10-minute passionate speech after which I don't remember exactly what I said, but it was something like, "Who are you?" "It was a great speech," I said, "but you're just a new city councilperson. How do you have the juice to get any of this done?"

He said, "I'm committed to doing it. I'll raise some money for Vera to come in initially and do sort of a high-level look at our system, and at least give us some guidance about what, given the lack of infrastructure, the lack of resources, what all our problems are. Give us some guidance as to the big areas. We know we can't turn the system around overnight, but come in and help us sort of pinpoint what specific reform areas should be. That's what I need you to do." And so he was a very convincing, very persuasive guy. We got a little bit of funding. We went down and we spent about a month there. We did a report that's on our website if people want to see it.

It was sort of a high-level report and it pinpointed several things about the New Orleans system that were sort of either obvious gaps in their system or, if they weren't a gap, they were broken in some really fundamental way. I want to go through a few of them now and then I'll talk about a few of the specific areas we've worked on in the role of sort of research and data analysis.

We found four to five areas that we thought in the next few years, in order to have a well-functioning criminal justice system, the city had to fix as soon as it possibly could. One is there was no pre-trial system at all. There was no such thing as release on recognizance in New Orleans. There's no sorting or interviewing of defendants. There's no capacity — well, there is now — but there is no historical capacity to do that kind of work. It's a money bail system. If you get arrested in New Orleans — and by the way, if you take anything from this lecture at all, even one smidgeon of information, don't get arrested in New Orleans. New Orleans Police Department is a very, very high-volume arrest police department. They were. They still are. I work and live in New York City. We tend to think of the NYPD as a high-volume arrest department? The NOPD arrests about three times per capita what the NYPD arrests. They have hugely high arrest rates and it is purely a money bail system. Everyone gets money bail.

No one gets ROR. I should say that's not quite true. The only way historically you could get released on recognizance in New Orleans is if a private attorney — and it has to be a private attorney; it cannot be a public defender — calls a judge and makes a case for his client to be released on recognizance, he may or may not get ROR, but that's the only way you can get ROR.

That's one of the reasons, certainly at the time, that New Orleans had — and I haven't looked at these figures lately, but probably still continues to have — the highest local incarceration rate in the U.S., which means the world. It's not solely, but largely because of that flow into the jail with no one getting released. That was just a huge part of the system, a huge piece of sort of best practice that was obviously missing. So that's one area we highlighted, and I'll talk about it in a little more detail in a couple of minutes.

The other — which was actually the first thing we worked on and which I'll also talk a little bit more about in a couple of minutes — was that, codified into Louisiana law and practiced by New Orleans, if you are arrested for a misdemeanor and detained, the DA has 45 days in which to file a formal charge and 60 days for a felony. That is, once you're in jail for a misdemeanor or a felony, you're not pre-trial; you're pre-charge. You can, and historically people have, stayed for 45 days for a misdemeanor, 60 days for a felony before a formal charge is even filed.

I've been around. I've seen a lot of stuff. I'm a pretty cynical person. I'm always amazed when you can find something new that you never thought of. People ask me about the constitutionality of that all the time. I'm sure there have been set challenges to it before. It still exists. So on the jail side now, that was just a huge issue for us. People not only were not sorted out, were not released on recognizance, but once you were in, you were in, and most of those folks, especially on the misdemeanor side, stayed more time than they would ever have stayed if they got sentenced to whatever they were there for. It was just an obvious thing that they had to look at.

The other thing we wanted them to look at was the use of summonses in lieu of arrests. As I said before, the NOPD has a hugely high volume. I think that will change over time, especially because the mayor and Ron Serpas, who's the police commissioner, are pretty determined to change that. I think the consent decree they have will probably force them to change even more, but especially on low-level nonviolent sort of quality-of-life arrests. Although they had the ability to use summonses, they did not use summonses. They just used custodial arrests, which to us made no sense, and again, given that system, those folks would be there for 45 — once they were in, they were there for 45 days, never even with the possibility of getting a 45-day sentence on what they did. We thought they should take advantage of being much more aggressive on using summonses.

The other thing that was apparent — and I'll get into some of the specific work now — essentially no alternatives to incarceration or detention, hugely little capacity. The DA has some diversion programs in his office, but no sort of structural ability to do alternatives to incarceration or detention.

Also, not surprisingly, especially given the population and the hugely concentrated poverty in New Orleans, and the high volume of arrests, you put that together, you know you're going to have incredibly high rates of mental-illness and drug-use people coming into the jail system. Not an unusual state of affairs for any city correction system, even more pronounced in New Orleans, again, just because — so poor, so much volume coming in, the rates are really high and in their case matched with next to no capacity to deliver those services. Mental health services, drug treatments, sorely lacking in New Orleans. A lot of cities that have problems with that sort of capacity — that's not unusual. New Orleans is sort of one end of that bell curve. They have very, very little capacity. A lot of people there working to change that now, and I'm sort of confident it will change. But that was another area we thought they needed to work on quickly in terms of system issues. There were a couple of others, but I'll just stop with them. You could tell the system, in some very fundamental ways, was just not a functioning system.

And so we did our report. We suggested they reform those areas. The city council sort of adopted our report as their official road map to criminal justice reform. Then the city council sort of said to Vera, "Come on down. You need to do this now." We had some interesting conversations, the gist of which was "No, you need to do this. We can help you do it, but we cannot come down to New Orleans and fix your criminal justice system. You have to fix your criminal justice system. We can provide all sorts of assistance: facilitation assistance, research assistance, best practice stuff. We can do a lot of stuff, but you have to do it."

At the time, these were very interesting conversations both within Vera and with national funders, because it was right after Katrina. The city at some level was asking us to come down and help. At one level, this is the kind of thing that Vera lives for. Of course you want to help. Look at that system. Even if you just do a little bit, you're doing a lot for a lot of people, so at some level we wanted to help. We had a lot of people — national funders, people who are serious politically astute folks — saying do not go down there. If you invest resources there — I understand why you would want to — you will disappear down a black hole of politics that you will never understand. You will never be seen again.

That scared me a little. We had this conversation with the city and it took the form of "We really want to provide assistance and we're willing to make a real commitment to the city. We're very fond of the city, the people there, the people in government, and the citizens, but you have to do this. You. You, the city. You have to get together and do this." And James Carter, he's a very astute guy. He kind of got that and he said, "Okay, I will get everyone in the city to sign on to all these reforms. Everyone. Every criminal justice leader is going to sign on to this."

Again, I don't remember what I said. It was probably a little more colorful than what I'm about to say, but it was something along the lines of, "Are you out of your mind? How are you going to do that?" And he said, "I'm going to do it. I need your help. I'm going to have a two-day retreat," in what wound up to be Point Clear, the redneck Riviera. Who knew? It's very nice. I'm going to get everyone there and after two days everyone is going to sign on to this reform. I said, "Okie dokie."

We really wanted to help. It's not like I'd bore you with the details — the details are probably more interesting than the rest of my presentation. We had this two-day retreat. He got everyone down there because he did in fact have enough political juice to do that. At the beginning of that retreat, there was a room like this, and all the leaders were there. All the principles were there with a lot of their staff. He said, you know, in my position, "Okay, here's why we're here. Vera did this report. You've all read it. If you haven't, here's what it said. We need to reform A, B, C and D. By the time we leave, everyone here is going to sign a document that says you are now committed to getting this reform done."

To say that was not warmly received would be an understatement, both on the substance. No official, no policymaker, no elected official likes to be told they're going to sign anything. Don't tell me I'm going to sign something. I'll sign something if I want to sign something, and I'm certainly not signing that.

Two days later they all signed it. All of them. Not only did they all sign it, there was a very sort of high-profile media event in the mayor's office with the mayor. It got a lot of press. They all came up and signed this very official-looking document committing to reform. Everyone: the sheriff, the mayor, the city council, the police commissioner, the courts, the public defender, the DA. Everyone. And that's a testament that in some way is a lesson from this to what will eventually become the larger local leadership. But in that case, it's one person who just had this vision and was determined to make it happen.

And so what happened after that was that all those principles formed that the signing of the document sort of created this organization called the Criminal Justice Leadership Alliance. That's the group that we now do all of our work through. Simply, it's just a collection of all the criminal justice leaders and mayor in the City of New Orleans. That's the group that committed to do all these reforms. There are now subgroups of that group that work on specific areas of reform.

Once they formed that group, the city committed to reform. That's initially when national funders started to come in to fund the work. Because we approached a lot of national funders at earlier stages saying, "Look, the city wants help. We'd like to help them. Is this the kind of thing you'll fund?" "No." No, everyone said no. "Because at least if we give money to Kansas, we kind of know where it's going to go. We know what's going to happen. We are not just shoveling money into New Orleans, because, you know, who knows?" But when we came back with this sort of leadership alliance and this large commitment, at that point, it was enough for Vera to make the institutional commitment we did, and it was enough for the funders to start funding. And so we got initial funding from the Jett Foundation — God rest their souls; Baptist Community Ministries, which is the big local funder in New Orleans; the Open Society Foundation; Ford; and then the latest from the Bureau of Justice Assistance at DOJ.

So we made this commitment to the city, and one of the commitments we made is it was clear to us if we were going to help the city move this reform along, we were going to have to have staff there all the time. I'm sure a lot of you are involved in engagements like this all the time. We have different engagements where we sort of come in and out of places. We help people move stuff along; we do some work; we leave; we come back; we talk to them on the phone. They can be pretty intense, but we're not there. We knew that that would never work in New Orleans. We knew we had to be there, and so we relocated staff there and opened our small office.

We knew that — I mean almost too many challenges to even contemplate — we knew one of them was going to be data. Their data is horrible. It's never easy to get good, clean data anywhere. This is really, really a challenge. I asked — I'm going to take out my Blackberry not because I'm going to tweet thousands of my followers now, but — I asked John Wool, who's the director of our New Orleans office, to just send me a sentence or two on the data there so I could describe it in a way that people who were sophisticated in data would understand, but without taking sort of 10 minutes, he sent me this. The best thing for me to do is just read it, I think, and you'll get a sense.

Okay, so I asked John "Just give me a sentence or two that describes the various data challenges…" Well, I'll just read this to you:

"I'm not sure I can sensibly string even random thoughts together as I started the day at 5:15 in the jail. The staff is always whining about how hard they work. But perhaps this is the best state to try to explain the criminal justice data system here. For historical reasons unrelated to anything a researcher might be concerned with, the court's data is funneled back to the sheriff's database, which also holds all jail-related data. The sheriff, an independently elected official, controls 90 percent of the data that does exist in New Orleans.

"Both in the sheriffs antiquated green screen AS400" — there's a blast from the past — "AS400 system and the court system, there were significant completeness and accuracy problems, and perhaps most importantly, programming the system to run queries that join data points is seen as akin to asking a 90-year-old man to walk up six flights of stairs. Everyone fears a fatal crash. Moreover, much of the data is entered in text fields, rather than delimited fields and searching becomes arduous.

"One example: Our pre-trial services program, which foremost needs to be able to identify court decisions about detention and release, has after more than a year, not been able to identify a field that specifies what the detention release decision is. Although it is in there somewhere in every case, both the court and particularly the jailer need to know if the person is supposed to be in custody or not.

"NOPD has some data, not nearly enough. The DA has next to no data system. And the two courts, the state court and the municipal court, do not share data. We're the only people who can tell the state court that their felony defendant has an open misdemeanor in municipal court and vice versa. And we have to look up individual by individual. There seems to be no current way to merge the two databases to do this. I'm going to sleep."

It's really poor data to work with, and since we sort of pride ourselves on being a sort of empirically based organization that uses data to further reform, this has been a huge challenge to us. I'm going to run through quickly how we've been able to use data in the furtherance of that reform. It's not the use of data that in any way, shape or form is something that NIJ would fund as a research project. You would just never even consider it. Understandably so. Maybe one day there'll be systems there that will allow such funding, but right now there are not.

One of our challenges has been, frankly, what does it mean to use research and data to push reform in a system that — I mean it's a little strong to say they have no data, but their data is of really limited value. One of the things we've done is rely on sort of national best practice, meta-analyses, other research that's been done on similar issues, and we've managed to use, I think pretty successfully, their data in a way to paint a picture, to tell a story, to sort of complete a narrative, and to really be sort of descriptive of a system that — we find that stuff pretty useful even though people, they've been in these systems forever, they've run them forever. They don't really know at any level of detail how people flow through, how long they stay, at what cost, at what risk. We have used that data as a way to sort of illuminate some of those things, and that's really helped.

So I'm going to run through how we sort of worked on some of those issues in the role of data in the next few minutes compared a little to Los Angeles and then talk about some of the lessons. So the first thing we took on was what we called expedited charging. That is, getting the time down from 45 days to file a misdemeanor charge to 60 days to file a felony charge. It goes to show you that even though… The leadership alliance signed off on all these reforms, they did it for a variety of reasons: for political reasons; they felt they sort of had to; for peer pressure; because they believed in it. It's all over the map.

But when you really start to drill down and say, "Now you all signed on. We're going to get rid of this 45 and 60 days. Our goal is going to be…" I think we said six days. I'm not sure why we said six days exactly. We went through with the group — I mentioned this to someone before — we talked about what happens in other cities. One of the ironclad rules of consulting is, no matter where you are, but certainly if you're in the South, don't ever talk about New York City. No one cares. It has no relevance to anyone's life. It means nothing. We sort of get that, but we do use New York, and Chicago, and L.A. just as a guide to other things that can happen. In New York City and other big cities, that charging decision is made most of the time within 24 hours. Other cities, 48 hours.

When we started to have that talk with that group, even though they all sort of signed on to it, it was at that point I think that they realized, "Oh my God! First of all, do we really want to do this?" Because there's both a sense that that's how they've done it forever and there were a hundred practical reasons why you couldn't get that time down. It just had to take that much time. That's what it took naturally. Also, it wasn't just an undercurrent; it was a stated current, a feeling among many of the actors that "Well, what's wrong with that? If these guys are in, they're not going to wreak havoc if they're in. They're in!" And you say, "Yeah, but they're not even charged with a crime. It's the United States of America." You have to charge them. You can keep them in if you charge them, and you decide their risk level. But you can't — I mean, they can because it's the law — but you can't keep people for 60 days.

The case we made to them — and that a lot of them, to their credit, saw — was that on both ends of that scale, what would happen is people would be in for 45 days. So it would mean the first time the DA and police would talk to each other would be on the 44th day. That's what happened. They would never talk. The 44th day they'd talk, and they'd go over the cases, and they realized for almost all of them, "Tch! This is a crap case. Eh, let him go." So they wouldn't even file charges. So the case we tried to make was, why wouldn't you want to have that discussion 30 days before? Why are you having this discussion now? Whose interest is served by that time? Even you folks think that this is a case that doesn't belong here, but on the other end, on the felonies, what would happen is the 59th day is the first day they would talk.

And for a lot of those cases, they have a serious crime problem in New Orleans. There's a serious violent crime problem. They've got some serious people in jail. For a lot of those cases they'd realize, "Oh my god, this is a serious guy. Maybe we should've talked. Maybe we should've done something in those 59 days to sort of get some evidence; to build some case. Now we don't have enough to charge him. We got to let him go."

It was a process of sort of convincing them that both on the low end they had cases that even they think shouldn't have been there at what for them is great cost. And on the serious end, they were letting violent felons go because they hadn't moved that time up.

Those were very difficult conversations. Coming from a liberal place like New York, this has existed for so long and I'm sure at some point they were similar difficult conversations in New York as well. But they were very difficult conversations. But like a lot of the work we do, we sort of convinced them, "Let's just try it. Let's see how it goes."

When you get into "Well, the reason we can't do it is because when the police change tours, the paper moves from here to here. How are we going to get the paper down there? We don't even have a fax machine." "We'll buy you a fax machine. What else?" "Well, you know, the clerks, they sit over there..." When you're in those kinds of discussions, you know that you're going to make some progress. Because all that sort of stuff you can deal with.

Again, sparing you a lot of the details — because this data we were able to track. We did know who was in from the sheriff's data, who was in for what charge for how long. And so we could track almost on a daily basis how long those pre-trial charging decisions took. This is sort of why we had to be there on the ground. Literally, the people in our office were installing fax machines, running back and forth to the office, talking to the police officers and the clerks about how the paper was going to move from there to there, running to the DA's office to make sure there was someone on the other side getting that police report, making sure there were then meetings, scheduling the meetings. You wouldn't think, you graduate law school or get a Ph.D. this is what you're going to do with your life, but apparently it is.

Like a lot of these reforms, once you do it, you sort of start to see the utility in it. The DAs would get the stuff early. They kind of like that. The police would sort of get it out. They weren't doing any more work. They were just kind of moving up the clock.

Again, a long story short, as soon as it started to happen, with very little technology, really very little real reform other than moving up those decisions and moving up some paperwork, those times — I think I wrote them down — the filing of charges have gone from an average of 61 days to six days. Arrest/arraignment for those detained has gone from 64 days to 11 days. It's still 11 days. It's not great. It's still six days. There's really no reason you can't do it in 24 hours, so we're still pushing. But again, once everyone got there, that's a substantial piece of reform for that system. At some level it's an inside baseball kind of reform, but that little piece of reform affects the lives of thousands of people who now stay far less in jail than they would've.

We used a lot of descriptive data for that, a lot of sort of research on best practices, a lot of bringing in — we took trips to all the jurisdictions. People saw how complaints rooms were. It doesn't quite fall under the rubric of "research," but it was using research that already existed. A lot of national best practice stuff and that was really useful.

What we found in a tremendous amount of our work is that not only sort of research and data and all that stuff that is so important, but people like to talk to their peers. And it's useful to talk to a bunch of smarty-pants researchers at NIJ or Vera, the Urban Institute, but legislators like to talk to legislators. DAs like to talk to DAs. It's not even an R&D thing. People just like to talk to people who, at least some level, are in their shoes.

Even though I used to do that stuff when I ran a correction agency — you don't understand what I do. I have all these political things I have to deal with. What do you know? You're just some sociologist who wants us to change. We use a lot of that in our work. We bring people out to other places. We bring — whether it's legislators or DAs or police chiefs, whatever — for discussions. We have at Vera what we call sort of associates. These are current practitioners who are kind enough to give us like four to six days of their time a year for these kind of engagements.

All that sort of factored into this expedited charging thing, but that's all sort of common to the changes we made in other areas. In the summonses area, again, that's an area where we didn't have great data. You couldn't do anything fancy with the data we have, but we did at least know how many arrests there were, how many were summons-eligible, and how many summonses there were.

For that one, we had another working group. Again, I can't stress enough that that Criminal Justice Leadership Alliance, even though it's not like everyone's on the same page and everyone's not holding hands singing Kumbaya, marching to the same tune — it's not that. But it is a group of people who have all committed at some level to working together. And that doesn't mean they all agree on any of these reforms, but they're at the table talking about it. No one's backchanneling, no one's going to the press — that's an old New Orleans tradition. Here's a dissertation: go back and do some content analysis of the Times Picayune coverage of New Orleans criminal justice system over five years. The police chief would have a press conference blasting the DA. It was the Wild West. That just doesn't happen anymore. Everyone has those arguments sort of through this leadership alliance. And it's hugely important and to their credit that they — this is not easy for them to do. They all take some level of political risk. They all are at least willing to cede some authority, to cede some budget depending on what's happening. It's not easy for policymakers and elected officials to do this.

On the summons issue, the NOPD was right there. The city council really wanted to push this issue of not making custodial arrests for things that were clearly summons-eligible. In New Orleans, what happens is that if you're arrested, along with the arrest you'll also be fined. It's a system of incredibly perverse incentives, New Orleans. I'll talk about that in my last 30 seconds as I'm sprinting toward the finish line. And so there are all sorts of reasons you don't want these folks arrested.

In 2007, NOPD issued 1,000 summonses and arrested 4,000 people on low-level municipal charges, so four times the number of arrests as summonses. The city passed two different ordinances that we helped draft and sort of create consensus around that really sort of strongly encouraged the use of summonses, and now that has flipped. Right now there are about 1,000 arrests and about 3,000 summonses. Again, at some level, an in-the-weeds, inside-baseball change, but a very big change for the city. And again, the data we use — just descriptive data in this case — very, very helpful for sort of tracking the progress of that.

So the thing I'll end with other than the funding chat — maybe I can talk about L.A. a little during question and answer — is the pre-trial initiative. That's what we have a Bureau of Justice Assistance grant for. And that was our sort of third pro — We didn't want to start off with pre-trial, because we knew that as difficult as the other things were, that was going to be a bear. Just because it's not only a big piece of work, the politics around it are pretty intense. We had judges essentially saying, "I will never, ever, ever release someone on their recognizance. Ever! You can do whatever you want. They will never happen in my courtroom." I must say, I think probably most of the judges said that to us.

But there were certainly other people in the city who were interested in doing that, even maybe some of the judges, although they didn't publicly say that. Again, that was one of the things that — Vera's done this sort of work for a long time now and it's the kind of thing that we always think, "We just need a couple of people to start. We can find somewhere some judge is going to be receptive to this. We just need one or two judges to start." That's our sort of operating theory about how to drive some of this reform.

And to BJA's credit (or insanity — you pick) they funded us to start this system. And I think I was telling Kris this story that that project started with — we got together a big group of policymakers in the city, the usual suspects, in some ways. The mayor actually facilitated the meeting, a lot of judges, the sheriff, the police chief, city attorney, all the people you would think would be there. It was co-hosted by the mayor and the US attorney there.

Mary Lou Leary came. She was then the deputy working for Laurie. We had the meeting and several people in the meeting expressed their extreme displeasure at the notion that this was going to be forced on the city. "What if this doesn't work in the city? It doesn't have to work here. You already decided to give us this product." There was a fair amount of yelling. Afterwards, Mary Lou said to me, "Wow, that was a really bad meeting."

It's funny because I said, "Really? I thought it was great!" Because in the New Orleans, it actually wasn't a bad a meeting. Although, if you never were in a lot of those meetings, you could see how someone would think, "God, that was awful." It actually wasn't awful. People said what they needed to say. A lot of people didn't say anything, which you have to understand in that context that's a good thing. If they got stuff to say, they'll say it. Not saying it means some kind of tacit approval in a strange sort of political world. Everyone was on notice that this was going to be a tough piece of work.

Again, a lot of people felt and still feel — they'd say very directly, "What if I decide to release someone and they do, like, a bad thing?" Part of me — and this is why my staff doesn't take me to meetings anymore really — part of me wants to say, "Well, you're a judge! This is what you do. Then don't be a judge. Go run a restaurant. These are decisions you have to make." I don't — even I am not at the point where I'll actually say that; I just think it.

We try to explain, it will happen. It happens now. They're doing bad stuff now. They're getting out because you can't hold them for a variety of reasons. But we understand that's a political risk people take. Part of the value of the criminal justice alliance there is that there's a sense of sort of shared risk. Everyone is buying in now. Is some person going to go out and conk a little old lady on the head and take her pocketbook because you've ROR'd him? Yeah, that's going to happen. Part of your cover is that you received a recommendation from a professional outside agency. Their best recommendation was to release this person. You released them. You were doing your job. In this case, it's on us.

Again, very difficult conversations. There's a tremendous amount of research now, obviously, on pre-trial practices. Vera ran the first pre-trial program of the country. We've done a lot of that research — Tim Murray's shop, NAPSA. There's a lot of good research on appearance rates, on show-up rates, on reoffending. And if you do this right, we sort of went over all the research on how well this can work. And again, in their particular case, we had not just us, but people come in talking about what happens if you over-punish low-level offenders and you sort of make them worse, and New Orleans is a prime example of that. They are spending huge amounts of money to create a public safety problem. They sort of got it and they got the message about really concentrating on the worst and violent offenders because they do have violent offenders. And they don't have a lot of money and that's where they — you know, they got this at some level.

Through the BJA funding, the sheriff who probably in some ways takes the most risk in a lot of these circumstances, built a space for us in the jail. That's where we conduct our interviews. We went live in April, I guess. We only have enough staff to interview people Monday through Friday during the day. We're not remotely set up yet for a 24-hour operation. That will be the next round of BJA funding, I'm sure.

But we do see 85 percent of all felonies that come through the system Monday through Friday. From, I guess, the end of May to last month, we assessed about 1,000 people and about 130 or 140 were in fact ROR'd. What is that, 13 percent or 14 percent? Compared to DC, where 85 percent of people get released on some form of recognizance and supervision, not even close to the — well, DC I suppose is the best standard for pre-trial. New York City does about 60 percent ROR. On the one hand, 14 percent isn't a lot; on the other hand, it was zero. And so for us, it's a start.

True to form, there are three or four judges now who they didn't start to use it initially; they just wanted to see what the information is like. We give them scores on low, medium and risk. We give them a little narrative report on the person. They like calling in. This is not a sustainable business model. They like calling the people who run this and talk to us about Joe. But slowly, that has sort of disappeared and they're just dealing with the paper now. And I don't want to be overly sanguine about this; it's still a very tough issue.

We still have a long way to go, but it's clear it's being seen, in some ways, as the way we want it to be seen, which is we're just giving you more information than you had to make better decisions. It's not a sentencing grid. You don't have to release anyone. We're just giving you information that you can use to release or not. Starting at about 14 percent, from our point of view it's not a bad place to be in the first few months. We still have a long way to go.

I know I need to stop in two minutes. One of the things that is an NIJ-type project, but it's too expensive for NIJ — one of the things that we know from New Orleans is that I've never seen a city that is so loaded with financial incentives everywhere in the system that are completely perverse and that mitigate toward greater incarceration, to more people in jail and prison, to more people under criminal justice control for no good purpose.

I'll give you a couple examples. I'm sure these are folded into discussions that DOJ is having with the city and the sheriff. The jail is the only jail I know of that's funded on a per diem basis. That is, the sheriff gets — I forget what it is exactly — $23.47 for each body that's in his jail. And so he has some interest in having as many bodies in his jail as possible because that's how he's funded. And the problem the sheriff has is even in Louisiana, $23 a day is not enough to run a good, safe, constitutional jail. Cannot be done. So you're always chasing your tail. There could be 50,000 people in prison there; he still wouldn't have enough money to run a good, safe, constitutional jail. But that's the dynamic. You need more bodies to get more money, but you never have enough money, so you need more bodies.

Those incentives are spread all over the system. Even the public defenders, every time they take a guilty plea, they get a fee. Right now, no one thinks the public defenders are actively pleading their clients out so they can get — I don't even remember what it is — $35, some revenue stream. But who would do such a thing? Why would you ever pay a public defender a fee for that?

As I said, every low-level case — simple marijuana possession is the most common arrest charge in New Orleans. It's not drug court, but if you go to court sort of during drug day, what you see is the defendants sort of line up. They're all taking their pleas because they've all been in jail already a long time. The magistrate — sometimes the judge, usually a magistrate, and I'll stop with this; I'll put off the L.A. thing — the magistrate will say, "All right. This is your first time, first defense. I'm giving you a six-month sentence suspended, time served," whatever it is, two or three years probation — I can't remember, "and a $1,000 fine. If you do it again, your second offense gets you five years in prison. Your third offense gets you 20 years in prison." It's Louisiana. They don't play.

So what happens on the fines is they're very politically popular. The bad guys are paying for this system. "You're a bad guy. You're going to pay for us to move you through the system." But what happens? Of course what happens is, I mean $1,000 — it might as well be $1 million dollar. It might as well be $100 million. These folks are not paying $1,000. It's just not going to happen. They may pay $25; they may pay $50. Maybe they pay $100. But inevitably, they're not going to pay. And they're going to get a traffic stop, and then they're going to go to prison for not paying that fine. So you may collect $50 in court fees, but you're going to spend $50,000 in tax levy money.

That's a study we actually have a proposal to do. The problem is — again I'm just giving you three examples; the system is loaded with these examples — we have a big cost-benefit capacity at Vera. We'd love to sort of look at just the costs — forget about benefits — of levying these fines and the expenses of when they're not paid. The problem is, of course, there is no administrative data. You can't just sit in the closet and play with data and SQL databases. You have to go in to hundreds of thousands of court files and paper.

It would cost a fortune to do this study. It's really something we're trying to get private money for, but in some ways that's at the heart of the system. Those financial incentives have long driven how the system operates. Even with that, this leadership group has sort of overcome a lot of them, but that needs to change in New Orleans for it really to be a top-flight system.

I'll end with saying there are a lot of lessons from this for us certainly and our sort of small role in this. Probably the biggest — then again it's kind of pride I suppose — sort of catalytic event in this case, Katrina. That local leadership, even though it started with one person, but morphed into this group, was just hugely important. None of that stuff — and I give the city and parish all the credit for doing all the stuff. They did it at the end of the day and it's really quite moving in a lot of ways, because it's been a very tough process for them. I was going to talk about L.A.; I don't have enough time. In terms of their effort, in terms of the risk they're putting out, in terms of what public officials are laying on the line there, to change that system — they're miles ahead of L.A. L.A. needs to change dramatically, but there's no push in L.A. You would think realignment might be enough to sort of galvanize people and push, but it hasn't been so far, and the New Orleans folks have really taken this on. They saw maybe through an event that they would've obviously rather not happened, but they saw this opportunity for reform, they saw the door open at some level, and they walked through it. That's to their credit, but clearly it's really led to some hugely interesting reforms, and if people could do work to galvanize other localities like that, I think we could push a lot more of this stuff, but it's been done in a city where it's been hugely difficult to do any reform for a century. At some level, if it can be done there, it can be done other places, but it can't be done just by an outside agency coming in and saying "We're here to help." They have to own it, and, to their credit, they do.

Questions and Answer Session

I'll stop there and take any questions.

Amy Solomon You talked about the fiscal disincentives in the system or incentives being in the wrong place. How much did the fiscal arguments help you persuade the stakeholders there that they had to change, for example, the number of days that people were being held? That's question one.

Number two is how does probation play into all of this? I'm assuming a lot of people who would be ROR'd are actually on probation. I didn't hear how their data or strategies were in the mix. Thanks.

Jacobson On the fiscal stuff, I'd say it was pretty important. I think certainly the city council and the mayor's office — their jail has about 2,600 — and actually it was 3,600 a year ago, and although I'd like to say it's from all of our initiatives (our stuff is in there somewhere), it's from dropping a lot of state inmates, and the federal government, for obvious reasons, pulled out a lot of their ICE and federal pre-trial inmates. But even at 2,600, if they had the national average of local incarceration rates, that jail would be about 800. So they're not going to have the national average overnight. That's not going to happen.

But I think people get that to the extent that you went from 2,600 to 800, even at the ridiculous per diem number, even if you kept that budgeting strategy, that's big money in New Orleans. That's a lot of money. And I think people get that even incrementally it's a lot of money. You know, what the sheriff is concerned about — and I feel his pain at some level; I used to do what he did — he's concerned that, especially because I'm assuming in the near future there's going to be a consent decree, but he's concerned that he's going to be under huge pressure, as he should be, to run a good, safe, constitutional jail.

Just because the city saves money… I mean, good for the city. Where's my money? It's a very interesting dynamic with the sheriff. I'm actually very fond of him. Probably the feeling isn't exactly mutual at the moment, but he's an interesting guy. The way he sort of views a lot of this is before he came into office and before Katrina there was a longtime sheriff there, Sheriff Foti. He's a white guy, a white sheriff. He built up that system. The New Orleans jail system I think was, before Katrina it might have been 7,500 or 8,000. Because Louisiana holds tons of state inmates at the local level. That's just what they do like them in New Mexico or the leaders in this. It's bad correctional practice, but sheriffs make a living off of holding state inmates, and Foti built huge numbers of prisons for that.

So Foti leaves office, Katrina happens, Sheriff Gusman comes in, who's African American, and all of a sudden there's all this attention. Part of Gusman is thinking — and I get it — "No one said boo when that guy was building up to 7,000 or 8,000. I'm at 2,600. People are busting my chops." He has a legitimate point, but he needs to go down even more. His concern is how am I going to have enough money if we do all this good stuff? And the answer is he's not going to have enough money if they keep budgeting him on a per diem basis. They can't budget that way. They have to budget like a real jail or like any big-city agency is budgeted. You're budgeted on your functions, and how much security you need, and how much programs you need, and how much recreation you need.

He's worried that once you give people the option of not giving him the per diem, they'll give him nothing, and I get his concern. This won't work if he's given nothing, and actually, that'll be one of the help from — a consent decree is not going to allow him to be given nothing. The fiscal stuff is of more interest to some of those actors than others, but doing that sort of cost and potentially cost benefit and cost savings piece has been, certainly on the city council on the mayoral side, hugely helpful at getting them in.

The probation thing is very interesting, and it's one of the big pieces of missing data. There's a large segment of that, of people in jail are probation violators. We don't quite know how many. We certainly don't know what they're there for violating in the first place. But to their credit, both the state correction, and part of it is probation, are really interested in reforming their kind of violation processes to sort of meld with these reforms.

But this is one of the big pieces of missing data there. In a perfect circumstance we'd see exactly who were there for parole and probation violations, what those violations were for, and we can't. I mean, we could if we sort of delved into court files, but we can't through the administrative data. So it's probably a bigger issue than we think it is, although the people are at the table themselves, but not enough has happened on the sort of back end of probation and parole.

Jeremy Haile It's Jeremy Haile with the sentencing project. I was wondering if you studied at all racial disparities in the system, and if you have any observations about how race has played a role in sort of the system that exists, and any reluctance to reforming it.

Jacobson This whole field is about race. It doesn't matter where you — you can be in Vermont and the racial disproportionalities are huge. I think even in New York City, I think 93 percent of the people you see at arraignment are people of color. So in New Orleans, it's… I don't know what it is. It's probably 98 — I'm making that up. It's even more. Again, not surprisingly, the communities where there's the most concentration of poverty there and there's huge amounts of concentration of poverty. Those are entirely communities of color and that's who's coming into the system.

One of the things about even when you're in the system — this was part of Jim Austin's work for NIJ when he was doing one of his population projections. He found that controlling for all the usual things — criminal history, instant charge — that black defendants stay twice as long as white defendants. Not a big "n" of white defendants, but again, those disproportionalities sort of run through the system.

There's no system where that's not true. It's probably more pronounced in New Orleans. Race is just so apparent in every discussion of every issue, understandably. And you see it nowhere to the extent you see it in New Orleans. Again, it's both race and class, because those are the folks who are also fined who wind up being in prison for being fined, and so it sort of extends not just the city, obviously; it extends to the state.

At some level, obviously you know it. All you have to do is look at your system and you know it's filled with black folks. Things like black people stay twice as long and they have higher rates of disproportionality than other places, you would think policymakers would be immune to some of that stuff. And it's actually pretty powerful. They're not completely closed off to those arguments, even though they get it at some level. But yeah, it is a huge and apparent problem in the city.

Thom Feucht Thom Feucht, NIJ. Thanks for the talk, Mike. The cost incentive's really interesting. I want to ask you about an allusion that you made to public safety, the idea that somebody who's detained for 45 days or 60 days isn't out doing other stuff. When you change that and you start turning those charges around faster or you start settling pre-trial disposition quicker, you run the risk that these guys go back out and do more bad stuff. Was that realized or was that never really a concern or did you just simply not capture that?

Jacobson We don't know yet. One of the things we've been doing is sort of setting ourselves up in all these areas for ultimately really serious evaluations. We have some sense early on that the show-up rate is — I forgot to write it down — really high. The rearrest rate, still very low. But we don't know, and certainly we don't make any pretense to know over time, both on pre-trial and on expedited charging. We're trying to sort of map out, sort of research designs now and think about where data would come from to look at this, because we want to be able to answer those questions not in the way I just answered them, but with some sort of validity.

I should say we didn't have enough money. Vera has built a lot of risk instruments in the past. We built the original one from the New York City Bail Agency. We just built one three years ago for the New York City Family Court to use to make in-and-out decisions. That was based on using hundreds of thousands of cases to predict failure to appear and reoffending. We did not do that in New Orleans. We didn't have the funds to do it. The data exists at some level if someone wanted to give us a huge amount of money to do it. What we did initially was piece together validated risk instruments that been used in other places. We tried to intuitively tailor it for New Orleans. We ultimately will, based on that, validate it and rework it, but we did not start with a New Orleans-validated instrument.

So all these things have yet to reach the level of an answer I could give you with any certainty. I can say it's good, bad, or indifferent. We know those are issues. We know if it's done right, you can overcome those issues. We hope we're doing it right. We don't really know. Hopefully, if I give you an update in two years, I'll be able to provide you with a more satisfactory answer. But we do know, at some point, whether it's us or someone else, someone needs to look at these things with a much more sort of scientific eye. And it's not going to be easy because the data to do that is just, even two years from now, going to be in rough shape.

Sarah Shirmer Hi. Sarah Shirmer, Mayor's Office of New Orleans. I'm curious on the city side. Vera came in with funding to do a lot of this work, and as you were mentioning, a lot of data is very bad and you have to go through each person to collect the data. On a city side, when you don't have the opportunity or that time or that funding, how much reform can you really move forward with when you have to put forth so much effort to get the research?

Jacobson It's very difficult. Ultimately, the city — and this is easy for me to say because it's not my money. Even a year ago, certainly pre the current mayor, the city had no centralized capacity to any criminal justice planning. There was no — I guess there was a — is it called the coordinator's office? There was no sort of policy making at all. It just didn't exist.

Now you have an office. You have Carter. You have whatever. People are involved in sort of looking at this, and they're getting a lot of outside help from Bloomberg and others. But a basic issue for the city is it's going to have to find the infrastructure money to create a system like that. Just know you can't do good criminal justice planning of any kind in any sustainable way by getting some of that sheriff's data over there, piecing it together with some court data, hoping the DA has some stuff, and let's combine it with the NOP — it can't be done. Again, that's easy for me to say.

It's money, and it's politics, and it's not going to happen overnight. I don't even know what the cost would be. But again, that's why people talked about the NOPD consent decree costing 11 million a year. I don't know if that's real or not, but whatever, 11 million a year. The jail consent decree, I don't know what that's going to cost. I don't know; 10 million a year — I'll just make something up. Those are big money numbers.

I ran a very consent decree jail system. They're incredibly complicated. At a minimum, they just have millions of checklists. They're way more complicated than that, but things you have to do. Even for just that you're going to need better data than you have now. And certainly to keep pushing the reforms that the mayor is obviously interested in pushing, he needs a tool. And it's to his credit that he gets whatever he gets by hook or crook and the force of his personality and the Leadership Alliance and bringing people to the table. But you can't be an executive of a complicated place like New Orleans, you just can't do it with the data that exists now.

There's nothing particularly satisfying about that answer. Maybe it's a $10 million investment — I'm just making up a number. Again, it's not just money; it's politics. Because those systems develop the way they — I don't think people are going to rush and say "Okay, I'll give up all my data; you do the coordination." If anyone can do it, he can probably do it. But a lot of these are beginning steps. You're not going to get from here to there when you really want to get to the best practice stuff. You can't have the decentralized middling data that you have now.

Hank Stawinski Thank you for the presentation. Hank Stawinski from Prince George's County. Two questions: What has been the reaction or the response of the community since this has occurred, and what has been the reaction or the response of the people in the criminal justice system to the changes?

Jacobson I'm probably not in some ways the best person to answer that. I can tell you that one of the things that's really helped over the last several years is that the business community has taken a real interest in sort of reform generally. This group and us, we've done a lot of presentations to business groups and civic groups about the cost of this system, how much more efficient it could be.

These groups, generally, they may not care about the specific issues of criminal justice or jail overcrowding, but they care about the wise use of taxpayer money, and public safety, and using limited resources in the most efficient way possible. And it's clear for years it hasn't been done. So they've been really, I think, helpful both in their discussions with the city council, with the mayor, and making sure this reform keeps happening. They've paid attention and that's a good thing.

There are varieties of advocacy groups, community groups, grassroots types that are very energized now. They're actively involved in all these other discussions about the size of the jail. There's all sorts of opinions floating around. I think generally, and my sense is the more people talk about this stuff, the better. It's not like there's some broad agreement that everyone is sort of marching in lock step here, but the business community generally has been very supportive. There's a lot of grassroots community groups that probably want to see more progress faster and the jail get smaller and more alternatives. They want all the right stuff at some level, but they do what they do.

There's just, I think, a lot more public discourse about this stuff than there has been, at least from afar. I mean, you work there, so you'd be a much better judge. It doesn't seem like particularly toxic discourse. This can be a pretty toxic topic. It's a lot more now than there's been. People are just paying attention to it. That's a good thing. I think there are groups that want the jail to be small or want it to happen now. And those are perfectly reasonable discussions to have. But certainly getting in the business groups, that is no small thing for sort of obvious reasons.

Phyllis Newton I'm Phyllis Newton from NIJ. I have a question about the data. You have mentioned several times "bad data." Are you talking specifically about the — you mentioned this as well — the coordination of the data among the different agencies or are you talking about historic data? Are you talking about individual institutions when you talk about the problems with the data? Can you expand on that just a little bit?

Jacobson Yes. There's a variety of problems. One, they're very sort of disparate systems that don't come close to being a sort of unifying — if you want to see the flow of a person from initial arrest through processing through the jail into, whatever, municipal or state court, and to state prison, you have to look in — whatever it is — five different places. And maybe you'll be able to patch together, with some guesswork, something of how they've moved through.

That's because it's not just that they're disparate data system. They've all been kind of developed independently, organically. They have data fields that should be populated that aren't populated. They have data fields that are populated, but at least we don't understand what they're populated with. And that's true historically, and — probably a little less currently, but — and currently. It's a huge problem. Again, we work in 44 states, God knows how many jurisdictions in those states. We see bad data all the time. It's just a fact of life. At some level, no one has really good data.

There is just so much missing. The problem is not just like it's one bad administrative data set that goes from here to there. It's like — I keep saying six, it's probably more than that — six really, really suboptimal data sets. I'm sure there are some geniuses who would think about how you would actually merge them. I didn't get a chance to talk about it in L.A., but in our L.A. work, there may have been larger administrative projects than our work in L.A. I can't imagine there's too many of them, because we merged I think there were nine gigantic administrative data sets with tens of millions of pieces of information. And that was a nightmare, but it was doable. You could do it. Now there's a way to sort of track people from here to here.

New Orleans, they are a long way off. Part of is just attention. Part of it is investments in infrastructure. It's a city with not a lot of money. I was a government official and I work in New York City. It's a strong mayoral city. The mayor basically controls everything. He wants a soup-to-nuts thing. Other than money, he can have it. He can just tell all of his agencies what to do. New Orleans, it's not quite that way. Its sheriff is a powerful, independently elected official. The courts are the courts. I think this particular mayor has the sort of gravitas and heft to kind of get that done, but he can't just order it done.

Again, I don't even know the level of investment or work. Is this a five-year project? A 10-year? I just don't know. There probably are some people in the mayor's office who do know. It's essentially yes to all your questions. Even when we're granted access to a data set, which is no small thing, there are people that actually know how to do this at Vera. I see the look in their face and I don't even want to talk to them because I know it's just not pretty.​​