Gotham Gazette http://www.gothamgazette.com/component/tags/tag/52 Mon, 23 Oct 2017 11:22:05 +0000 Joomla! - Open Source Content Management en-gb webmaster@gothamgazette.com (Webmaster) As We Close Rikers, Setting Our Sights on Essential State-Level Reforms http://www.gothamgazette.com/?id=7261:as-we-close-rikers-setting-our-sights-on-essential-state-level-reforms http://www.gothamgazette.com/?id=7261:as-we-close-rikers-setting-our-sights-on-essential-state-level-reforms Andrew Cuomo

Gov. Cuomo at an update prison (Governor's Office)


Anyone following New York City politics knows about JustLeadershipUSA’s mission to close the jails at Rikers Island. In less than a year, the #CLOSErikers campaign successfully pressured Mayor Bill de Blasio to commit to shuttering the jail complex. It is no longer a question of if Rikers will close, but when. But the campaign has always known that closing Rikers would require reforms at the state level as well. An overhaul of our statewide bail, speedy trial, and discovery statutes is necessary to reduce the population at Rikers so that it can finally and expeditiously close its doors.

Even if Rikers were closed tomorrow, these reforms would still be necessary. While New York City has successfully reduced its jail population over the past few years, county jail populations across the state are growing. Today, 63% of people held in jail in New York State are held in jails outside New York City. Of those 25,000 husbands, fathers, brothers, sisters, children, and loved ones who are sitting in jails across our state, 70% have not been convicted but remain unjustifiably caged while they await the outcome of their cases.

This reality is a consequence of punitive and discriminatory criminal justice policies that have decimated communities, primarily poor communities and communities of color, for decades.

To end this human rights crisis, we need bold action from Governor Andrew Cuomo and our state Legislature. That is why JustLeadershipUSA launched #FREEnewyork, a campaign focused on empowering those who have been most harmed by our jails and prisons to hold Governor Cuomo and our elected leaders in Albany accountable and unapologetically demand real solutions to these self-inflicted problems.

Governor Cuomo said that Rikers should be closed in three years. Now he must deliver around the state he leads. He and his colleagues in Albany have both the power and the responsibility to drive us toward that Rikers goal while also addressing the failings of our statewide criminal justice system.

They can start with overhauling our broken bail system. We need reform that eliminates money bail, protects the presumption of innocence and the right to freedom, limits when and how any pretrial conditions are instituted, and prohibits biased risk assessment tools. Bail reform must focus on ending the devastating repercussions that even initial involvement with the criminal justice system can have on people, especially on low-income families who too often must choose between paying bills or paying for their loved one’s freedom. People who can afford bail achieve better outcomes in their cases, and everyone deserves access to these outcomes.

Albany must also enact comprehensive statewide speedy trial and discovery reform. Today, no other state in the country comes close to matching the appalling unfairness of New York’s readiness rule approach to ‘protecting’ one’s right to a fair and expedient process.

We need a true speedy trial law that sets concrete limits on when a defendant must actually be brought to trial. As it stands now, prosecutors can cause unforeseeable and unending delays in the trial process without significant repercussions. Combined with the current state of our bail laws, this leads to human beings trapped in cages while they await their hearing before a judge or jury.

What is already a bad situation is only made worse by New York’s current discovery laws, which are widely regarded as some of the most regressive in the country. We need a new discovery law that requires open, early, automatic, and mandatory discovery, guaranteeing defendants and their lawyers access to vital information about their cases. Without this, defendants and their attorneys have little to no access to information about the charges they face.

These reforms are vital for New Yorkers most affected by mass incarceration, and countless studies have shown that criminal justice reforms like these increase public safety, improve relations between communities and law enforcement, and create better outcomes for victims and taxpayers. Yet, while each of these reforms and each of their respective components are important, none are sufficient on their own if we truly want to end the plague of mass incarceration that grips New York State. Comprehensive, connected reforms are necessary for the real, lasting, and positive change in our criminal justice system that New Yorkers deserve.

Without this action at the state level, New York will continue to commit human rights abuses on a daily basis. The atrocities of our criminal justice system will linger, and New Yorkers will suffer unimaginable harm as a result. To fight for reform, close Rikers, and decarcerate county jails throughout New York State, directly impacted individuals and communities across the state must raise their voice, and, together, bring a simple message to Governor Cuomo and our legislators in Albany: we are watching you, we demand real and bold reform, and the time to act is now.

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Glenn E. Martin is founder and President of JustLeadershipUSA. On Twitter @GlennEMartin and @JustLeadersUSA.

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As We Close Rikers, Setting Our Sights on Essential State-Level Reforms Wed, 18 Oct 2017 04:00:00 +0000
Much Agreement on Need for Bail Reform, But Little Movement http://www.gothamgazette.com/?id=6658:much-agreement-on-need-for-bail-reform-but-little-movement http://www.gothamgazette.com/?id=6658:much-agreement-on-need-for-bail-reform-but-little-movement de Blasio rikers ponte officers

On Rikers Island (photo: Michael Appleton/Mayor's Office)


There is an ongoing conversation in New York about how to fix the bail system that many agree is broken, keeping too many poor people in jail after they are arrested for low-level nonviolent offenses but cannot afford to post bond and, at times, allowing individuals back onto the street who are prone to violence but able to pay bail. Efforts at reform have been full of fits and starts.

About a month ago, Mayor Bill de Blasio announced measures to make it easier for people to pay bail through an online payment system, as opposed to the insistence that bail is paid in person. More recently, City Council Member Rory Lancman introduced legislation that would require a city service provider to furnish judges setting bail with details of a defendant’s financial situation.

These latest incremental local reform ideas and others are aimed at chipping away at the problems with the system, but many advocates, legal experts, and elected officials agree that there is a need for an expanded statewide conversation around the culture of bail and actual statutory reform, chiefly to ensure that those with limited material resources are not punished simply for their economic status.

Reforming the bail system in New York has been something of a priority at both the city and state levels, though tangible progress has been limited.

In January, Governor Andrew Cuomo included the issue in his policy agenda for this year, although there has been little follow-up through legislation. Cuomo proposed requiring judges to assess risk to public safety when making a bail decision -- something de Blasio and others are in agreement with -- and stronger regulations of bail bondsman practices.

In New York City, the de Blasio administration has implemented a number of initiatives this year to make bail payments less complicated and to provide alternatives to bail that keep people from being incarcerated. There have also been concerted efforts both in policing practice and through legislation to reduce arrests for low-level offenses in the first place, and arrests are down significantly while the city has become safer in terms of major crimes.

The population at Rikers Island jails, where about three-quarters of the city’s jail population is housed, hovers around 7,500 daily, down significantly from peak years over recent decades.

In April, the mayor committed nearly $18 million for a citywide expansion of a supervised release program that will allow as many as 3,000 low-level offenders each year to remain out of jail and work while they await trial. The program cuts down on the use of monetary bail, ensuring that people who are of low risk to public safety but cannot afford bail do not languish in prison.

Last month, the mayor announced the creation of a system that allows cash bail to be paid online, by a phone, or through a courthouse kiosk by family members and friends of defendants. The system, due to be launched citywide by the spring, aims at alleviating the difficulty of having to physically visit a corrections facility to pay bail. “Nobody with the ability to pay bail should sit in jail just because the bail process is an inconvenience,” de Blasio said at the announcement.

The City Council has also been inching closer to establishing a public bail fund, which was first announced by Council Speaker Melissa Mark-Viverito in her February 2015 State of the City speech. The fund received a license from the state Department of Financial Services in August but cannot begin operations until a pending license application for a bail bond agent is approved. If it becomes operational, the fund will provide bail money for qualifying participants so that they can leave jail between arrest and court appearance.

Bail reform is a key consideration for the Independent Commission on New York City Criminal Justice and Incarceration Reform, a body that was set up at the speaker’s behest earlier this year to recommend broad criminal justice reforms, with an eye toward creating a plan for closing the Rikers Island prison complex. The body is being headed by former New York State chief judge Jonathan Lippman, who, when he filled that role, argued vehemently for bail reform.

Lippman believes that bail reform is moving ahead slowly in the city, but he stressed in a phone interview that there needs to be statutory change in law to effect broad change. “The city is doing really good things but they’re nibbling around the edges, not able to get at the heart of it,” he said. “My belief is that we need cooperation from Albany and we need a new bail statute.”

Lippman suggested a two-fold approach to bail: giving judges the authority to assess risk to public safety and the need to “flip the assumption” that someone should be incarcerated instead of being released while waiting for a court date. “Bail doesn’t assure the person coming back and it’s an anachronism,” he said, promising that the commission will directly address the issue when it releases its recommendations sometime in spring 2017.

Last year, when Lippman was serving as chief judge (he was forced to retire due to age restrictions and is now “of counsel” at Latham & Watkins), he announced administrative measures to reform the bail system in the absence of legislative action by the state. His own proposals from 2013 to essentially do away with cash bail have not been taken up by legislators in Albany, where Republicans control the state Senate and are often opposed to what is seen as progressive criminal justice reform.

“I think we got a lot of attention when I proposed the legislation,” Lippman said, rueing that “getting a lot of attention and getting things done are two different things.”

The challenge to changing the bail statute, he said, is the same that creeps up in any issue of criminal justice reform. “Legislators are elected and get into this soft-on-crime/tough-on-crime syndrome,” he said. “I think we need to be smart on crime.”

A major impetus to the conversation around bail reform was the tragic death of Kalief Browder, a young Bronx resident who spent three years on Rikers Island awaiting trial on charges of stealing a backpack. Browder couldn’t pay bail but was eventually released when the case was dismissed. In jail, he faced physical and mental abuse and was placed in solitary confinement for nearly two years. In June 2015, Browder committed suicide.

The case prompted widespread outrage and besides putting a spotlight on the culture of violence at Rikers, it highlighted the problems in the bail system. Advocates use Browder’s experience as a rallying cry in their push for change.

While there’s a lot of agreement that an update of the legal statutes is necessary, there’s a greater need, many say, for reexamining the purpose of the bail mechanism and reeducation in how it is practiced.

“Bail, by definition, discriminates against the poor,” said State Senator Michael Gianaris, deputy Democratic Conference leader, who proposed a bill last year to scrap cash bail. “There’s no rational basis for continuing this process.”

Gianaris, of Queens, believes that reform is being slowed by a misunderstanding of the issue. “Bail was never intended to keep dangerous people off the street,” he said, pointing out that defendants have a constitutional presumption of innocence and cannot be considered dangerous for the purposes of bail if they haven’t been convicted yet.”

Ezra Ritchin, project director of the Bronx Freedom Fund, one of two charitable bail funds already operating in New York City, commends the mayor and the City Council for the steps they’ve taken and says there is an urgency around bail reform at the state level.

“We’re in an important moment right now where there’s a lot of change happening,” he said. “Since Kalief Browder...there has been momentum for reform.”

But Ritchin warned, “There are things that we are missing in all of this.” The root of the issue, he said, is the high volume of arrests in New York City, and the consideration that a defendant is likely to miss their court date. “It’s often labeled as flight-risk,” he said. “That’s a massive misunderstanding of what’s going on. No one is fleeing.”

“It’s a question of the way that we frame risk,” Ritchin said, referring to the chances that a person might flee or even be a risk to public safety, which is a consideration that both Mayor de Blasio and Governor Cuomo have proposed as an addition to the bail statute. “What we don’t talk about,” Ritchin said, “is the risk of a person’s life falling apart from being wrenched into the system.”

Therein lies the biggest issue for Ritchin, the way the bail statute is put into practice. The current statute allows nine different forms of bail, including cash bail, that a judge can impose, some of which are less onerous.

“I think the statute, if used correctly, could result in a very different system than the one we see now,” Ritchin said. This “golden question” of how to change the culture of imposing bail, among prosecutors and judges, is one for which Ritchin said he has no clear answer.

City Council Member Lancman echoed that sentiment. As the chair of the Council’s Committee on Courts and Legal Services, Lancman is at the frontline of this issue. “The major obstacle is the unwillingness of judges and prosecutors to accept other forms of assurances for a defendant...than cash bail or bond, as well as the unwillingness to look at each defendant’s financial circumstances,” Lancman told Gotham Gazette in a phone interview. “The system in every way possible -- from the city side, the judiciary side, the district attorney’s side, and, to a lesser extent, from the defense’s side -- is not focused on eliminating this reality of people being sent to Rikers Island because they’re poor.”

Under the bill Lancman introduced November 29, an arraignment screening organization contracted by the city to provide details about a defendant, including a recommendation on their risk of flight, would also have to include information on a defendant’s ability to pay bail. This is just one of the few ways the city can change how the bail system works, Lancman said, stressing the need for action at multiple levels. “The effort to reform bail requires many stakeholders adopting the new procedures and policies and outlook, which cumulatively would have an effect of greatly reducing the number of people on Rikers Island because they’re poor,” he said. 

The understanding that cash bail is a misguided concept has taken hold in an unprecedented way at the city and state level, according to Insha Rahman, senior planner at the Center on Sentencing and Corrections at the Vera Institute of Justice. Less than a decade ago, “it wasn’t a part of the rhetoric and conversation around bail as it is now,” Rahman said. 

She insisted that any legislative proposal, such as one that would consider adding public safety as a consideration, should be informed by data obtained through a statewide survey. “The push needs to be to understand the problems with the use of bail statewide to avoid unintended consequences in places where it’s being used effectively as opposed to ineffectively,” she added, pointing out that different counties employ different practices and that the system is far from a monolith even within New York City’s five boroughs.

There is no cash bail in Washington D.C., where defendants are only detained if they are considered a risk to public safety. It’s considered a model by many advocates of bail reform in New York. But, as Rahman argued, adding risk as a consideration in setting bail could create problems if not studied carefully. “Any change to that is basically change in the sorting mechanism of who stays in and who is released,” she said.

Judge Lippman supports the idea of factoring public risk. So do Gov. Cuomo and Mayor de Blasio, and they have been criticized for it. The proposal has also held up reform at the state level as different stakeholders struggle to find middle ground. Advocates and legal experts fear that it could deprive defendants of their rights and further institutionalize racism in the judicial system.

Cuomo has not changed his stance since he first included it in his 2016 agenda, according to his office. “The Governor continues to champion comprehensive criminal justice reform, including changes to the state’s antiquated bail system,” said Abbey Fashouer, a spokesperson for the governor, in a statement. “New York is one of only four states in the nation that does not currently take into account public safety risks when making bail and release decisions – and it’s past time to develop a new approach.”

The mayor recently doubled down on his support for the proposal. During a November 7 appearance on NY1’s Inside City Hall, de Blasio spoke of the need for bail reform in the context of the fatal shooting of NYPD Sergeant Paul Tuozzolo in the Bronx just three days prior. Tuozzolo was shot and killed by a man who was out on bail and suffered from mental health problems. It was reminiscent of the October 2015 killing of NYPD Officer Randolph Holder, which the mayor referenced in the interview as well. Holder was killed in East Harlem while pursuing an armed suspect who had earlier been sentenced to a treatment program by a drug court rather than being sent to jail.

“This is a reminder that we need bail reform in the State of New York,” de Blasio told NY1 anchor Errol Louis of Tuozzolo’s murder. “We need to include the question of how dangerous a criminal is in the bail decision because there are times when someone is not – a criminal is not a flight risk, but they are a threat to the community, or they have a profound mental health challenge that needs to be addressed. These issues have to be taken into account and we need a state law that recognizes that bail – judges should have the opportunity to consider the dangerousness of the individual when making a bail decision.”

Peter Goldberg, executive director of the Brooklyn Community Bail Fund, said, as others did, that, “The fundamental problem with how bail operates is that it cages presumptively innocent people for their inability to come up with a certain amount of money.” He warns that replacing it with a system that assesses public safety might ignore that presumption as well.

“There’s a risk that  a system that replaces it will exacerbate existing racial and socioeconomic inequalities,” Goldberg said. “And in any system that looks to judge a person’s dangerousness merely based on the accusation of a crime, the data being used to create that system needs to be made available to the public, to be vigorously validated, but the bedrock principle needs to be the presumption of release.”

As 2017 approaches and with it the next budget and legislative agendas for state legislators and the governor, there’s widespread optimism that bail reform will be a priority. Judge Lippman believes the issue has gestated long enough. “That digestive process has already taken place and it’s time to pick it up and run with it,” he said, confident that his commission’s recommendations will be bold and “out of the box” and will not be politically constrained. “Because of the credibility of the commission, because of the depth of the research...no public official is going to be able to fuzz around these issues,” he said. “That releases some of the political pressure.”

Senator Gianaris is bullish on bail reform as well. “We’ve seen enough injustice,” he said, “that the time has come to take a comprehensive look at this and get rid of bail once and for all.”

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by Samar Khurshid, City government reporter, Gotham Gazette
     

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Much Agreement on Need for Bail Reform, But Little Movement Thu, 08 Dec 2016 05:00:00 +0000
City Council Bail Fund Continues Slow Path to Reality http://www.gothamgazette.com/?id=6650:city-council-bail-fund-continues-slow-path-to-reality http://www.gothamgazette.com/?id=6650:city-council-bail-fund-continues-slow-path-to-reality MMV hearing pencil

Speaker Mark-Viverito (photo via flickr)


The City Council’s long-awaited public bail fund, a project spearheaded by Council Speaker Melissa Mark-Viverito, is one step closer to being operational after receiving another required approval from state authorities.  

Mark-Viverito announced the plan to create a $1.4 million citywide bail fund in February 2015, during her first State of the City address. She called it a crucial element in her larger agenda of criminal justice reform, which now includes several other elements, such as the Criminal Justice Reform Act, which reduced penalties for many low-level, nonviolent offenses.

But the bail fund has been mired in bureaucratic process for some time, and its launch does not appear to be something that the speaker and her partners in the effort have made an urgent priority, despite the fact that the city’s bail system is widely acknowledged as broken. The problems with the bail system prompted Mark-Viverito’s bail fund initiative and elements of the Criminal Justice Reform Act, which helps avoid arrests in the first place.

The Liberty Fund, as it is called, aims to assist low-level offenders who cannot afford bail, at times as low as $250, and would otherwise be incarcerated awaiting trial. It would mirror other bail funds that are running in the city, and will be overseen by the Doe Fund, a nonprofit that provides assistance to homeless people.

"[I]f you can't afford bail you will spend on average 15 days in jail," Mark-Viverito said in the 2015 speech. "The results are predictable: people lose their jobs, or their housing, and cannot take care of their children while they are in custody. These are people who are accused of minor offenses and are still considered innocent in the eyes of the law. This is not justice."

More than a year later, in March 2016, the fund was recognized as a charity by the Attorney General’s office. After other steps in the lengthy procedure involving multiple levels of state approval, the fund received a license to run as a charitable bail bond operation on August 12, according to a spokesperson for the state Department of Financial Services, which authorizes such funds. The speaker’s staff told Gotham Gazette that same month that the fund is expected to provide assistance to about 1,000 people annually, and they hope to reach as many as 2,000 each year. Under state law, a charitable bail fund can only pay bail for an individual charged with a misdemeanor whose bail is set below $2,000.

According to the DFS spokesperson, the fund now has to to obtain a license for an individual to act as a bail bond agent. The spokesperson said that they received an application and a letter from the City Council on November 23 asking to approve the license. The individual will have to be vetted and interviewed before receiving the license, although the spokesperson could not say how long that process would take.

Two other bail funds currently operate in New York City -- The Brooklyn Community Bail Fund and The Bronx Freedom Fund. Both funds report that about 95 percent of their clients, who would otherwise have been unable to afford bail, return to court. The city-funded Independent Budget Office found in 2011 that on an average day, 49 percent of pre-trial detainees were jailed because they could not pay bail and that the annual cost to the city for housing all pre-trial detainees who were unable to pay bail was around $125 million.

The Council’s bail fund aims to prevent thousands of such defendants from spending time in jail, cutting down both on the prison population and the associated costs of incarceration, as well as the personal costs to the individuals. “Our Citywide Bail Fund will make our criminal justice system more fair by ensuring low-income New Yorkers accused of low-level offenses aren’t forced to languish in jail while awaiting trial,” said Robin Levine, a City Council spokesperson, in an email. “We are in active conversations with our partners and will be announcing next steps soon.”

Once the fund is established, that licensed bail bond agent will begin offering qualified candidates the cash to post bail, with the agreement that the participant will show up for his or her court date. The city’s budget for Fiscal Year 2016, which ended June 30 2016, included $1.4 million for the bail fund, which was unused. The same amount was included in the Fiscal 2017 budget as well.

At this point, the launch of The Liberty Fund could coincide with Mark-Viverito’s next, and final, State of the City address, in February. Mark-Viverito is term-limited out of office at the end of 2017.

“It is a time consuming process for an organization to be charitable bail fund organization,” said Peter Goldberg, executive director of the Brooklyn Community Bail Fund. Goldberg said his organization received its license in about a year-and-a-half, which is similar to the timeline for the Council’s fund so far. For the Brooklyn fund’s individual bail bond agents, Goldberg said it took about three months to be licensed by the state.

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by Samar Khurshid, City government reporter, Gotham Gazette
     

Read more by this writer.

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City Council Bail Fund Continues Slow Path to Reality Fri, 02 Dec 2016 05:00:00 +0000
Key to Vision of Closing Rikers, City Council Bail Fund Moves Through State Process http://www.gothamgazette.com/?id=6206:key-to-vision-of-closing-rikers-city-council-bail-fund-moves-through-state-process http://www.gothamgazette.com/?id=6206:key-to-vision-of-closing-rikers-city-council-bail-fund-moves-through-state-process MMV SOTC bail fund story

Mark-Viverito delivers her State of the City (photo: William Alatriste)


Last year, New York City Council Speaker Melissa Mark-Viverito unveiled her plan for a fund that would cover bail for poor individuals charged with low-level criminal offenses who would otherwise be forced to wait in a city jail for their court date. The Council dedicated $1.4 million of budget funds to back the project, which is nearing launch.

The program, if successful, could not only keep hundreds of individuals from staying in jail because they can't afford bail, but also lead to the expansion of state law that oversees and licenses bail funds, allowing for more criminal charges to be covered and higher bails paid.

The Council bail fund is going through a fairly lengthy process to get up and running, with no clear start date more than a year after the initiative was announced. Mark-Viverito recently said she expects it to be functional in the coming months, but that the bureaucratic process of getting licensed by state overseers takes time. The fund has just been approved as a not-for-profit charity by the state attorney general's office, the second in four key steps. A heightened sense of urgency around the bail plan has emerged after Mark-Viverito announced this year that she hopes it will be a key element of actualizing "the dream" of closing Rikers Island jails. 

About 10,000 people are currently held in Rikers Island and other city jails, most awaiting a court appearance after being arrested for a low-level, non-violent offense. Some have been in jail for weeks or months because they can't afford bail and the criminal justice system moves at a snail's pace. It is a situation that many, including Mark-Viverito, have decried with increasing intensity over the past two years.

"We need to take a comprehensive approach to criminal justice reform that ensures a fairer system, improves police community relations, and addresses the fact that far too many of our young people – mostly low-income black and Latino males – are locked up at Rikers," Mark-Viverito said during her 2015 State of the City address.

She continued: "For instance, if you are accused of jumping a turnstile or committing other minor offenses in New York City, you may be locked up. And if you can't afford bail you will spend on average 15 days in jail. The results are predictable: people lose their jobs, or their housing, and cannot take care of their children while they are in custody. These are people who are accused of minor offenses and are still considered innocent in the eyes of the law. This is not justice."

During this year's State of the City address, on Feb. 11, the speaker said that she wants to see "the population of Rikers to be so small that the dream of shutting it down becomes a reality." She announced a new criminal justice commission, led by former Chief Judge Jonathan Lippman, that will make recommendations for how to improve the criminal justice system.

Last week while discussing her belief that Rikers Island should eventually be closed, Mark-Viverito cited her bail fund as something that will reduce the population over time. Asked when she expected the bail fund to start, Mark-Viverito said she is waiting to be licensed by the state.

"We're waiting for the state, unfortunately, there's some state authorizations you need...some sort of licensure is needed," Mark-Viverito told reporters. "We needed, initially, a federal authorization, we've received that, we're waiting for the state, once that's done, we're ready to roll out. It's just we can't...without that authorization. So hopefully within the next months. It's just a normal process, obviously we are on top of it, but it's a normal process, it's bureaucratic."

In follow-up conversation with Gotham Gazette, representatives of Mark-Viverito's office stressed the process is going well, is not an undue burden, and that the hope is to launch the program in a few months. The office said the process to incorporate the program began officially in July 2015. The first step involved registering as a non-profit on the federal level; the second, attorney general approval as a charity. With that second step complete, the application will go to the state Department of Financial Services, which licenses charitable bail funds.

As approved by the AG, the fund shows "Initial directors" George McDonald, of The Doe Fund and David Howard, and Alphonso Wyatt, who were previously associated with the the fund. According to its bylaws, "The sole member of the Corporation shall be The Doe Fund, Inc., a New York not-for-profit corporation." McDonald is the founder and CEO of The Doe Fund, which has worked for decades to employ, house, and train homeless New Yorkers to help them stabilize their lives.

According to the filing, "the purpose" of the new organization will be "to assist indigent defendents charged with low-level crimes avoid the experience, complications and related hardships of pretrial detention caused by their inability to afford bail." Once it becomes a bail fund, it will "provide bail assistance" and "research, analyze and document the effectiveness and social impact of" its activities.

Before 2012 Mark-Viverito's bail fund wouldn't have needed state approval because charitable bail funds operated in a legal gray area. That year, Bronx state Senator Gustavo Rivera successfully advocated for a state law to oversee bail funds after a judge ordered an organization in his district to stop covering bail.

Now, as bail funds grow in popularity, Rivera said he is working with the state Department of Financial Services to smooth the application process and guide smaller groups that are interested in opening funds. Rivera said that as the evidence of the efficacy of such programs grows he hopes to expand the law that now only covers misdemeanor offenses and has a cap of $2,000 bail.

Rivera was approached by the Bronx Defenders (a nonprofit legal defense group) in 2010 shortly after he defeated disgraced then-Sen. Pedro Espada for his seat. When the bill passed in 2012, the Bronx Freedom Fund became the state's first licensed charitable bail fund.

Since then the group has shown promising results, which Mark-Viverito and others have noticed. It released a study last year showing that 97 percent of its clients returned to all their court appearances - some to more than 15 dates in a row. The group says that 27 times its bail money was returned even before the conclusion of a case. Out of 188 cases, 62 percent ended in a dismissal of all charges, 22 percent in a violation that carries no record, and 12 percent with a misdemeanor plea and no jail time.

The fund has $100,000 to pay bail and it is periodically replenished when their clients fulfill their court obligations. Individuals are interviewed by the fund to determine their eligibility. Alyssa Work, former director of the Freedom Fund, told Gotham Gazette last year that the application process involved a defendant filling out a form, and her checking to see if they have family and community ties or steady employment. She also would evaluate their criminal record.

Rivera has held a two roundtables on bail funds and has heard some concerns from interested groups. "We've been tweaking the paperwork you have to go through to get people licensed as bondsmen," said Rivera. "We've been discussing having the application fee waived for certain smaller organizations that aren't flush with cash, some folks have found it difficult to find someone at [Department of Financial Services] to answer questions. But the most important thing is that we've been working with DFS on this all along and they've been very helpful."

Organizations wishing to start a bail fund have to complete four major steps: register as a non-profit under federal tax laws; register as a charity under New York State law through the AG's office; obtain a charitable bail license from the state DFS; and, finally, obtain an individual bail bond license from DFS.

Mark-Viverito's office is now on to the third step.

Obtaining a charitable bail organization license from DFS requires a detailed application, a fee of $1,000, and the fingerprinting of all officers, directors, trustees, and executive personnel.

Rivera said that while he intends to keep working with DFS on the application process, he does "hope to eventually introduce legislation that expands the legal parameters of bail funds." Rivera continued, "Right now the cap on bail is $2,000, we might want to move that. There is a small list of offenses currently covered and we may want to expand that list. We know we are helping people whose only crime is being poor, who can't afford bail, allowing them to be able to fight for their freedom, when they otherwise might be sitting in Rikers or somewhere else."

In a statement to Gotham Gazette, Mark-Viverito said, "New York City is proud to lead the way in reforming a broken bail system that unjustly subjected our young people of color to senseless violence and abuse. By approaching this issue thoughtfully and deliberatively, we hope that our proposal for a citywide bail fund can serve as a model for other cities and municipalities seeking to change the way poverty and the criminal justice system intersect."

Like Mark-Viverito, Sen. Rivera supports closing Rikers. Mayor Bill de Blasio called the idea "noble," but has said he doubts it is achievable. "My job is to level with the people of New York City," de Blasio recently told reporters. "This would cost billions and billions of dollars, be logistically very difficult, and we don't have the space right now."

De Blasio has, however, also focused on bail reform, calling the current system unfair, with a burden that keeps the poor in jail for crimes they haven't been tried for, much less convicted of.

De Blasio has a supervised release program scheduled to begin March 1. Funded by asset forfeiture funds from the Manhattan District Attorney's Office and the City Tax Levy, the program will provide judges with the option of sending those charged with misdemeanors or nonviolent felonies to supervised release programs overseen by agencies run in each of the five boroughs, rather than setting bail. The plan is expected to eventually serve 3,000 defendants.

"There is a very real human cost to how our criminal justice system treats people while they wait for trial," de Blasio said in a July statement announcing the program. "Money bail is a problem because – as the system currently operates in New York – some people are being detained based on the size of their bank account, not the risk they pose. This is unacceptable. If people can be safely supervised in the community, they should be allowed to remain there regardless of their ability to pay."

***
by David King, Albany editor, Gotham Gazette
     

Read more by this writer.

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Key to Vision of Closing Rikers, City Council Bail Fund Moves Through State Process Thu, 03 Mar 2016 21:28:32 +0000
'Dangerousness' Aspect of Cuomo's Bail Plan Troubles Reformers http://www.gothamgazette.com/?id=6106:dangerousness-aspect-of-cuomos-bail-plan-troubles-reformers http://www.gothamgazette.com/?id=6106:dangerousness-aspect-of-cuomos-bail-plan-troubles-reformers cuomo sots solo

Gov. Cuomo delivers his State of the State


In his recently-released policy agenda for 2016, Gov. Andrew Cuomo included a plan to reform the state's bail system. While it has not been fully fleshed out yet, Cuomo's proposal dictates that judges would use a scientific assessment tool to determine an individual's "risk to public safety" while setting bail, a proposal similar to one Mayor Bill de Blasio recently made, with both coming under fire from criminal justice reformers.

De Blasio made his call on the state to reform bail laws in the wake of the shooting of NYPD Officer Randolph Holder by an alleged assailant with a long rap sheet of drug-related arrests. The mayor and others attacked the judge who put the alleged shooter into a diversion program instead of setting a high bail and effectively holding him in jail.

The plan was criticized by public defenders and criminal justice reform groups as a step in the wrong direction. Groups like Legal Aid Society are concerned adding 'dangerousness' to a judge's evaluation of an individual could lead to preemptive detention and institutionalized racism, see people charged with nonviolent crimes hit with disproportionate bail because they are deemed to be a threat, and lead to even more jail overcrowding as judges feel the need to remand an increasing number of defendants out of the fear of political blow back.

The same groups are now surprised and concerned to see Cuomo is running with the idea.

"I think this could make things terribly worse," said Jonathan Gradess, executive director of the New York State Defenders Association. "I think the mayor made a mistake when he called for this. I understand it was after a shooting of a police officer but it's wrongheaded and the governor is wrongheaded in now proposing the same thing the mayor did. We'd be giving a legal protection to the racism that already exists in the system."

Advocates for criminal justice reform and a number of Democratic legislators were surprised when presented with Cuomo's bail reform plan given that most of the criminal justice priorities contained in his address and other recent action lined up with major progressive reform agenda items. These include Cuomo's push to raise the age of adult criminal responsibility from 16 to 18 and to expand alternatives to incarceration programs.

Cuomo's budget book lists the bail plan under the "Fairness For All" section, along with increasing "opportunities for families to stay close during incarceration" and "reward[ing] success after release," among other planks.

The governor appears to be making the same argument that de Blasio made, which is that there needs to be more leniency for non-violent offenders, but harsher discipline for those who commit the gravest crimes - or who may commit them.

The Cuomo administration intends to utilize a risk-assessment program like the one developed by the Laura and John Arnold Foundation, an organization that looks to use a fact-based approach to combating societal problems. The program aims to gauge an individual's risk of reoffense by evaluating factors including age, criminal record, and previous failures to appear in court. The foundation has touted the predictive tool as a way to remove biases from the process of setting bail. Criminal justice reformers and public defenders worry it will have the opposite impact.

Members of the Cuomo administration stressed that they have yet to settle on a plan, or develop a program bill with the parameters for the program and that any judgement by outside groups is simply uninformed.

"Bail reform, when combined with an assessment tool, has the opposite effect of what they are suggesting," Alphonso David, counsel to Governor Cuomo told Gotham Gazette of critics. "What we've seen when it has been implemented in areas of Kentucky and in the city of Chicago is a decrease in crime, a decrease in reoffending, and a decrease in jail population."

Nevertheless, advocates are concerned that an impersonal evaluation tool will make it easier for judges to rationalize denying bail.

"Over the last couple of years we've been heartened to see an incredible amount of attention paid to the problems with our bail system -- people languishing in jail for years who have not been convicted of anything, who simply can't pay the price for their freedom and how our bail system disproportionately impacts people of color," said Justine Olderman of The Bronx Defenders.

"Policy makers have vowed to fix these problems," Olderman said. "Yet at the same time, they call for including dangerousness in the bail statute which will expand the reasons that a person who is presumed innocent can be held in jail. They seem to do so without any recognition that including dangerousness will undermine their bail reform efforts and will only exacerbate our current bail crisis."

Lately, the conversation about bail has focused on preventing the poor from disproportionately having to serve jail time when they can't afford to pay even small amounts of bail for minor crimes. City Council Speaker Melissa Mark-Viverito first announced plans to back a bail fund, then de Blasio followed suit with a public bail fund, followed by Democratic state Senator Michael Gianaris introducing legislation that would eliminate cash bail for certain individuals.

Gianaris said that he hopes there will be room for discussion of his plan given that the governor put the concept of bail reform in his 2016 agenda. "The debate is long overdue," said Gianaris. "The bail system has no rational basis. It just imprisons poor people who have not been convicted, the rich simply pay bail."

Gianaris acknowledged that the concept of basing bail on dangerousness has split progressives in the past. "This has been an ongoing debate with progressives falling on different sides of it. My bill doesn't change what a judge considers. It just does away with the financial component of bail."

Advocates say Cuomo's proposal simply doesn't jive with the rest of his progressive criminal justice agenda.

"I was surprised to see this in the same agenda with 'raise the age' and other criminal justice reforms," said Justine Luongo, who is the attorney in charge of Legal Aid Society's legal practice. "I understand why you would go this route: you want to prevent terrible tragedies, but this leads us down the wrong path."

Cuomo's 2016 policy book states that New York is one of four states that do not require judges to consider public safety when setting bail and that the current "approach means that people in New York who do not present a risk to public safety are detained while people who may present a risk to public safety are able to post bail and gain release."

The policy book goes on to say: "Governor Cuomo will introduce legislation to require judges to consider public safety when making release and bail decisions. The legislation will also permit judges to use research-based, accepted risk assessments when considering a defendant's threat to public safety. Other states and cities are using these risk assessments with good results: more people are released from jail before trial, without any attendant rise in crime."

The New York Times reported in June that a North Carolina precinct that has implemented the Arnold Foundation's assessment tool has seen its jail population drop by 20 percent.

State Senator Gustavo Rivera, who said he was very pleased by the majority of Cuomo's criminal justice agenda, was taken aback by the bail proposal. "As far as the bail proposal and my current understanding of it, I am deeply concerned that it might be going toward preventive detention," Rivera, who has backed a bail fund in the Bronx, told Gotham Gazette. "The state moved away from that, it rejected that in the past."

The state legislature has periodically debated having judges consider dangerousness since the 1970s, but in the end has decided against it.

"I think conceptually most people support judges being able to consider public safety when setting bail," said David, Cuomo's counsel.

Manhattan District Attorney Cyrus Vance has advocated for this particular change to the state's criminal justice law. "My Office has long supported a change to the state's antiquated law that only permits us to take an individual's risk of flight into account when setting bail," Vance said in a statement in July that was issued as part of an announcement touting a $17.8 million commitment from de Blasio to supervise 3,000 defendants as part of a community release program designed to avoid bail or jail time before trial.

"Today, I'm calling on Albany to amend that law to enable prosecutors, judges, and defense attorneys to also evaluate dangerousness and risk of re-offending when making bail determinations, as is the practice in nearly every other state in this country," Vance's July statement continued. "The use of an updated science-driven risk assessment tool will help actors in the criminal justice system better understand who can safely be released and supervised in the community while awaiting their day in court."

Reform advocates and a number of public defenders said they've seen no proof that states that consider dangerousness are actually preventing crime. They insist that only a small portion of those released on bail actually go on to be rearrested while awaiting trial.

"I have not come across any empirical data that New York has greater rearrest rates than any community with a dangerous statute," said Olderman.

Advocates fear the assessment tool will be used to jail a larger swath of people who haven't been found guilty of any crime, that judges will tend toward remanding defendants rather than posting bail for fear that there could be political backlash should someone out on bail is accused of another crime.

"We are very concerned there will be findings of dangerousness by this assessment tool in cases where there is no nexus with violence," said Luongo. She said that a youth with a history of non-violent misdemeanors could be deemed dangerous because of assessment criteria.

"In the current system a number of factors are already taken into account when setting bail, in domestic violence cases for example. We have registries for gun offenders and domestic violence, a judge can already take dangerousness into account," said Luongo. "Our concern is here that we are talking about predictive, preventative detention. It is troubling that the governor is not talking about striking a balance, doing away with bail in misdemeanor cases as former Chief Judge Lippman has suggested."

Jonathan Lippman, who was forced into retirement recently due to age restrictions on his position, has long pushed the legislature to overhaul the state's bail system as he has argued it disproportionately impacts the poor, forcing those unable to pay even the smallest bail to serve long jail terms before trial and thereby destroying any chance they have at a normal life. However, Lippman has advocated the state to move on the bail reform de Blasio and Cuomo are pushing for. In August, Lippman defended de Blasio's stance in an interview with Politico New York in October.

"I think they're fearful of this idea of preventive detention, but at some point you have to have confidence in judges and their judgement — that's what judges are there for — and you have to have a balanced bail statute that makes some sense and keeps violent people in, and there's a presumption that people who are not violent, and won't hurt anybody, are at their job and with their families and out on the street," Lippman said of Legal Aid Society criticism, according to Politico New York.

Legal Aid Society is also concerned that once a judge labels someone "dangerous" it could become very difficult to lose the label even in the face of facts. Luongo said that facts in cases can quickly change as seen in the recent highly-publicized Brownsville group rape case. "If one judge finds a defendant "dangerous," who is going to be willing to reverse that? Are judges going to be willing to step on another judge's toes?"

Robyn Pangi of The District Attorneys Association of New York told Gotham Gazette that her organization had not yet seen any specifics of Cuomo's plan. "District Attorneys would like to be involved in conversations regarding changes to the current bail system, particularly a proposal that takes into account the dangerousness of a defendant when setting bail," Pangi said in a statement. "DAs are interested in different mechanisms of pretrial detention, but stress that any sound proposal must take into account public safety and allow for prosecutorial appeal of the judge's decision in cases where the DA feels that public safety has not been given sufficient consideration."

There may not be much room for debate on the proposal this year as many important Democratic legislators are opposed to the idea from the get-go.

"I think this is a non-starter," said Gradess, of New York State Defenders Association.

Albany can be a place of trade-offs, though, and Cuomo could work to convince initial opponents to agree to a full package of bail reforms that also satisfy what they would see as progress.

Cuomo's counsel, Alphonso David, told Gotham Gazette that he would be surprised to see opposition to the plan once the administration releases its full bill. "We can't be driven by fears, we have to be driven by data," said David. "We don't legislate based on fear, we legislate based on data."

***
by David King, Albany editor, Gotham Gazette
@DavidHowardKing

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'Dangerousness' Aspect of Cuomo's Bail Plan Troubles Reformers Fri, 22 Jan 2016 00:06:24 +0000
Commission Considers Raises, Reforms for Elected Compensation http://www.gothamgazette.com/?id=6009:commission-considers-raises-reforms-for-elected-compensation http://www.gothamgazette.com/?id=6009:commission-considers-raises-reforms-for-elected-compensation de blasio mark-viverito council members

The Mayor, Speaker, & Council members (Demetrius Freeman/Mayor's Office)


Attendance was notably sparse at the first public hearing of the commission charged with making recommendations around compensation for city elected officials.

Fewer than fifteen people, about half of whom were journalists, went to Brooklyn Law School on November 23 for the Quadrennial Advisory Commission hearing to collect input from the public. Four people testified to urge the commission to make compensation-related reforms in their recommendations: two leaders from good government groups and two other concerned citizens. No elected officials were present, though Manhattan Borough President Gale Brewer testified at the second public hearing held at CUNY Law School in Queens the next night. City district attorneys had previously sent a letter to the commission arguing for an increase in pay.

None of the three citywide elected officials, other four borough presidents, or 51 City Council members have publicly expressed an opinion about compensation levels.

In September, in a move required by law, Mayor Bill de Blasio appointed a three-person commission to review the compensation levels of elected officials. Those salaries are supposed to be reviewed by a commission comprised of private citizens generally recognized for their knowledge of management and compensation every four years, but out of reluctance by mayors to make a move that is generally perceived by the public as an attempt to give themselves and their colleagues a raise, the salaries of New York City’s elected officials have gone unchanged since 2006.

At the hearing, Dick Dadey, executive director of Citizens Union, reiterated the good government group’s support for salary increases for the city’s elected officials provided that they are accompanied by other reforms. Dadey’s testimony was well-received by the commission and its chair, Fritz Schwarz, Jr., who asked Dadey several questions. Citizens Union argues that salary increases should be prospective, only taking hold in 2018 - after the next city elections; come with elimination of “lulus” (stipends) for chairing City Council committees; and with a cap on outside income to no more than 25 percent of one’s city salary, with full disclosure.

Gene Russianoff, senior attorney at the New York Public Interest Research Group, echoed Dadey’s calls for reforms, saying that any compensation increase must also be tied to meaningful restrictions on outside income, ending the practice of awarding lulus to Council committee chairs, and prohibiting retrospective salary increases.

The commission includes Schwarz, Jr., the Chief Counsel at the Brennan Center for Justice; Jill Bright, Chief Administrative Officer at Condé Nast; and Paul Quintero, Chief Executive Office at ACCION EAST, Inc. It will likely release its recommendations around compensation levels for the mayor, public advocate, comptroller, borough presidents, City Council members, and district attorneys by the end of the year, though the commission is already passing the initial timeline set in the mayor’s announcement. Public comment is open until December 3.

The mayor may accept, reject, or amend the findings of the commission, sending recommendations to the City Council for a vote on any new salaries before they head back to the mayor for approval into law.

At the hearing, Dadey pointed out that a large majority of Council members said that they think the raises should be prospective in their earlier responses to a Citizens Union questionnaire - a change which Mayor de Blasio also supports.

“37 out of 51 Council members said they support our proposal that any future increase in Council Member salary should only apply prospectively to the next elected class,” Dadey said (there has been some fluctuation in Council membership, but the numbers largely apply to the current Council).

Also noting that no Council members were there to testify and none have publicly voiced an opinion about raiss, Dadey said, “So why give them something that they haven’t asked for, and why give them something that they oppose?”

Schwarz confirmed that no Council member testimony had been received by the commission.

“You have this opportunity to actually come out with your recommendations and change a process that has been flawed for 28 years,” Dadey told the commission regarding the notion that raises should only be for the next class of elected officials. Many current officials will be heavily-favored incumbents running for re-election in 2017, but the point is one of principle and appeared to resonate with the commission.

Though some have said that issues with Council members and the mayor voting on their own salary increases could be avoided by simply pegging salary adjustments to one of a couple of economic measures, like the cost of living, Schwarz expressed dismay with the idea of proposing automatic COLA increases.

“What worries me about that concept are two things: one, ordinary citizens are not guaranteed COLA increase; and two, if a government official’s future raises are automatic, it removes any democratic accountability - so they get their extra pay but they don’t have to go through the rigor and sometimes hard public position of saying there should be more pay for my office,” Schwarz said. (COLA increases were not recommended by Citizens Union or NYPIRG.)

At the second hearing, Borough President Brewer also supported making any salary increase prospective. In the testimony she submitted to the commission, Brewer said, “I believe this commission should strongly urge the Mayor to do two things: First, commit now to empanel another pay raise commission in 2019; and second, to introduce legislation that contains an effective date of January 1, 2018 -- the first day of the next term of office for all New York City elected offices.”

In his testimony, Dadey pointed out that eliminating stipends for Council committee chairs is supported by 31 members of the Council. These stipends, known as lulus, currently range from $5,000 to $25,000 and, Dadey says, have contributed to the creation of unnecessary committees. With 38 committees, six subcommittees, and two task forces, nearly every Council member receives a stipend in addition to their $112,500 salary.

The large number of committees, Dadey said, allows “the speaker to use the lulus as a way in which to extract loyalty on particular issues which they would not otherwise do.” Only truly senior leadership positions like the Speaker and Majority Leader should receive stipends, Dadey added.

“We have more committees in the City Council than in the House of Representatives in the US Congress,” Dadey said, adding that the number of committees Council members serve on restricts their ability to focus on certain issues. These points raised Schwarz’s eyebrows.

In her testimony, Brewer, who was a Council member before being elected borough president, also expressed support for eliminating stipends. “Lulus should be abolished,” she wrote. “I think lulus have become a way of giving all but the least favored Council Members added compensation.”

Schwarz agreed that the lulus “can completely mislead people.” Due to public pressure, eleven Council members have refused to accept lulus this year, according to the Daily News editorial board.

During her testimony, Bronx resident Roxane Delgado pointed out that “City Council members voted against an amendment eliminating lulus as recommended by the commission in 2006.”

Since being a member of the City Council is only considered a part-time job, Council members are permitted to earn outside income. Citizens Union recommends outside income should be capped to no more than 25 percent of the elected official’s salary, with full disclosure, since eliminating outside income altogether would detract from the goal of attracting candidates with varied private sector experience, the good government group says.

Currently, fewer City Council members earn income from an outside job than at any time before.

Russianoff also supported meaningful restrictions on outside income, testifying that NYPIRG “strongly favors a congressional model which allows members of the federal government to devote 15% of their time to outside activities.”

Brewer, however, suggested that the job of a City Council member should be considered a full-time job.

At the first commission hearing, Schwarz pointed out the merit in keeping the position part-time, saying “A lawyer who joins the government brings something valuable, as does a community organizer, as does a businessman or woman - it’s important to have people in the Council who have varied life experiences.”

During the hearing, Commissioners Schwarz and Bright gave some insight into their process.

“We’re looking at the benefits, pensions, and compensation relative to the citizens that elected officials represent,” Bright said. “We are looking at the cost of living as a factor, not only the consumer price index, but also how much it costs - rent, food, utilities - what it actually costs to live here for the average citizen.”

“We are considering median household income,” Schwarz said, but added, “I don’t think we are likely to look at the percentage increases for the city’s regular workers in collective bargaining as” a target, referring to new union contracts signed between the de Blasio administration and city workers.

“If we went beyond those for the elected officials, I think we would be in trouble. To me, what they’re relevant to, is to make sure that we’re not going beyond them,” Schwarz clarified of the union contract increases.

According to New York City code, in making its recommendations, the commission must consider the duties and responsibilities of each position, the current salary of the position and the length of time since the last change, and any change in the cost of living, as well as a number of other factors.

The salaries of New York’s 64 elected officials has gone unchanged since 2006, though only 27 have held office for more than one term, and 22 were first elected to their posts just two years ago.

The 2006 commission’s recommendations resulted in a 25 percent salary increase for Council members (up to the current $112,500 per year base)  and a 15.4 percent increase for the mayor, from $195,000 to $225,000.

This year, Brewer has called for a 15 percent increase for all offices. Dadey and Citizens Union also support salary increases, given the demanding responsibilities placed on New York City’s elected officials, and the fact that they have not received a salary increase since 2006.

“The offices of the city’s elected officials need to be well compensated in order to attract individuals to public life who are talented, committed, and well qualified to carry out their jobs as successfully as they can,” Dadey said in his written testimony.

Some elected officials, however, have been seeking raises much higher than what good government groups support. According to the Daily News, a handful of Council members have been discreetly supporting a 71 percent increase. It’s something Council Speaker Melissa Mark-Viverito called “ridiculous” and that Dadey, among others, have also panned. Mark-Viverito has not expressed an opinion about raises and says she wants to see the results of the commission's work.

Earlier this November, the Daily News also reported the city’s five district attorneys - who currently make $190,000 annually - wrote a letter to the Quadrennial Advisory Commission requesting a 32 percent increase to their salaries, up to $250,000.

For his part, Mayor de Blasio has indicated through a spokesperson that he would “decline” accepting any pay hike “for the duration” of his current term.

Though the Council and the mayor have approved the commission’s recommended salary increases in the past, recommendations for reforms have gone unheeded.

In its report, the 2006 quadrennial advisory commission suggested “limiting the ability of government officials to raise their own salaries and receive them immediately would improve the integrity of the government and public confidence in it.”

The same commission also called lulus “ripe for reform,” and recommended that either a future Charter Revision Commission or the Council should consider reforming the practice of awarding extra stipends to Council members. 

Yet no changes have been made in nearly the decade since, and as a result, good government groups are demanding that any recommendations for salary increases this year hinge upon the Council’s agreement to enact relevant reforms.

As Russianoff of NYPIRG points out, “the Council has unfettered discretion to act. The Council’s unfettered power remains to pass local laws dictating compensation for City officials." 

***
by Meg O’Connor, Gotham Gazette
@GothamGazette
@MegOConnor13

Note: Gotham Gazette is an independent publication of Citizens Union Foundation, sister organization of Citizens Union.

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Commission Considers Raises, Reforms for Elected Compensation Sat, 28 Nov 2015 19:35:57 +0000
Spurred by Buffalo Billion, Reformers Look to Fix State Business Subsidies http://www.gothamgazette.com/?id=5940:spurred-by-buffalo-billion-reformers-look-to-fix-state-business-subsidies http://www.gothamgazette.com/?id=5940:spurred-by-buffalo-billion-reformers-look-to-fix-state-business-subsidies Cuomo Buffalo thank you

Cuomo in Buffalo (photo: Governor's Office via flickr)


United States Attorney Preet Bharara's attention has been drawn away from his normal stomping grounds to Buffalo, intrigued by what critics say is a shadowy network of state authorities and state-controlled non-profits handing out large business subsidies and contracts with little to no oversight.

Watchdogs say that Gov. Andrew Cuomo, through SUNY Polytechnic head Alain Kaloyeros, is essentially rewarding campaign donors with major contracts while using state cash to win political favor in economically-depressed areas. That sense has been exacerbated by a forceful push back against transparency by both the Cuomo administration and Kaloyeros.

Last legislative session the renewal of the 421-A tax break for real estate developers was the center of debate over business subsidies thanks to Bharara's indictments of former Assembly Speaker Sheldon Silver and former Senate Majority Leader Dean Skelos. Both face corruption charges stemming from their involvement with a major donor who sought renewal of the tax break.

But Bharara's interest in Buffalo Billion has shifted the gaze of some reformers and legislators to discretionary subsidies that are controlled by the Governor. At the heart of the U.S. Attorney's investigation appears to be requests for proposals written in a way to ensure one company, led by a major donor to the governor, would win the lucrative contract at stake.

"We believe many of these programs are out of control," said John Kaehny of Reinvent Albany, a group that has been focused on these subsidies. Kaehny said the programs have been "generally wasteful and driven more by pay-to-play or interest in providing local pork than derived from sound public policy."

Kaehny, a number of other reformers, and a small group of legislators want to pull back the curtain on these deals and create a system of true accountability that would show how contracts are awarded, how many jobs the contracts create, and how much state money is spent per job. Kaehny isn't exactly holding his breath, though, because he believes the current system was designed specifically to obfuscate and confuse.

"We do not see any reasonable motivation for the convoluted governance structure created by the governor other than to avoid oversight," Kaehny told Gotham Gazette. Kaehny said Cuomo has "created a legal fiction" involving SUNY Research Foundation and the Fort Schuyler Management Corporation, which sign contracts "on behalf of" state agencies like SUNY Poly. The state funnels money for a number of programs from Empire State Development Corporation, a state-run authority that has virtually no legislative or public oversight.

"Funding also comes from theoretically independent state authorities like NYSERDA and the Power Authority, which are told by the governor to provide money, power and land to SUNY Poly, which then gives resources away to select businesses," said Kaehny. "We believe this complexity is a deliberate effort to avoid transparency and accountability by the governor."

Some lawmakers are in the early stages of exploring legislative changes to how the state approves business subsidies. A few of them have been motivated by an Investigative Post report that the Cuomo administration dropped requirements to hire workers of color in one Buffalo Billion contract from 25 to 15 percent.

Others have been troubled by Cuomo's efforts to entice General Electric (GE) to move its headquarters back to the state. So far Cuomo has refused to detail what kind of incentives he has offered the company. Some legislators are concerned the company has yet to make good on its pledge to clean up the PCBs it poured into the Hudson River years ago and that its headquarters would have no economic benefit for the state.

"We have a real problem in New York with learning from history," said Ron Deutsch of the Fiscal Policy Institute. He said that New York has given businesses like GE, IBM, and Globalfoundries major incentives only to see them cut jobs, or move overseas. "We do nothing to hold anyone accountable" in the end, he said.

Cuomo has made it clear in conversations with the press that he sees no reason to scrutinize the Buffalo Billion program. Asked if he thought any procedures needed to be changed because of the investigation, Cuomo responded: "Do you know if there was any problem? No. If you knew there was a problem, then you would fix the problem. But we don't know any problem."

Good Jobs First, a national policy group that tracks business subsidies, actually rated New York 8th out of all 50 states on transparency for subsidy disclosures in a report released in January of last year.

Another study by the group found that New York spends more on "megadeals" than any other state. Megadeals are defined as subsidy agreements with businesses that cost $75 million or more. The 2013 report by Good Jobs First found that New York had spent $11.4 billion on such deals from 1984 to 2013.

When asked where New York's subsidy programs rank overall compared to other states, Greg LeRoy, executive director of Good Jobs First, replied, "Pick your metric."

SUNY Poly issued the following statement:

"In fact, neither SUNY Poly nor its affiliates have ever been in a position to unilaterally approve a single Buffalo project, including Buffalo project contracts or expenditures. The New York State system simply does not allow it. There are checks and balances at every step, layers of state oversight, internal and external audits, public hearings, public board meetings, and public votes."

So what can be done to prevent both the appearance and the reality of conflicts of interest; restore transparency and confidence in the system; and make sure someone is accountable for the way billions of dollars of taxpayer money is spent? Reformers have some suggestions.

One simple reform would be to ban businesses that win subsidies from donating large amounts to elected officials. The state need only look to New York City to see an effective model. In 2007, then City Council Speaker Christine Quinn and Mayor Michael Bloomberg reached a campaign financing deal that drastically reduced the amount any government contractor or group with business before the city can give to any campaign.

"Even the appearance of conflict of interest is a problem," said Deutsch, of the Fiscal Policy Institute.

Another piece of the puzzle could be eliminating the LLC loophole so that businesses cannot create multiple fronts to pour cash into the campaign coffers of state electeds.

To enhance transparency, advocates say the convoluted route by which money goes from the state to businesses needs to be simplified.

Kaehny said he wants to see the Empire State Development Corporation become a one-stop shop for business subsidies. Preventing state-controlled non-profits from distributing state funds would theoretically increase transparency by streamlining the decision-making process.

Both the Comptroller and Attorney General do have some oversight capabilities, but the Comptroller had some authority stripped away in 2011 by a bill that limited the office's ability to audit SUNY and CUNY as well as its hospitals and construction funds. Fort Schuyler and SUNY Poly have led the distribution of Buffalo Billion funds.

DiNapoli noted the situation during a recent appearance on WCNY's Capitol Pressroom with Susan Arbetter. "Our authority in some of these areas was curtailed a few years ago," DiNapoli said. "We complained about that at the time."

Kaehny said he wants to see the Comptroller and the Attorney General push publically on the issue of transparency. It isn't totally obvious how hard the Comptroller has been pushing for this information or not. If we had a right-wing Republican in the office I'm fairly sure we would see someone pushing relentlessly and using their bully pulpit when they weren't given the answers," Kaehny said, referring to the fact that all of the statewide offices are controlled by Democrats.

"The Comptroller could speak up clearly and directly and say: 'Here is what we don't know. Here are the dark spots. Here is where we see these structures created to defeat transparency,'" Kaehny said.

Still, many calling for change would like the Comptroller's office to have complete oversight over all subsidy deals.

One final, and perhaps farfetched possibility would be creating a State Independent Budget Office in the model of New York City's that would actually weigh the risks and possible rewards of highly nuanced tech and other business deals so that legislators and the public would understand where state money may be going. Deutsch said that someone needs to start asking a basic question: "How much is a job worth?"

The Cuomo administration has repeatedly stated that the Buffalo Billion will create 14,000 reliable jobs and attract $8 billion in investment as a result of the roughly $1 billion state expenditure.

It seems unlikely any of the reforms being discussed to the subsidy process will pick up steam in an election year, especially as Albany waits to see if Bharara's investigation leads to criminal charges.

"There are simple solutions," said Kaehny, "but they are very hard to get done because there is no will."

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by David King, Albany editor, Gotham Gazette
@DavidHowardKing

Note: this article has been updated with a clarification from John Kaehny that Reinvent Albany beieves "many," not "most," of the subsidy programs are "out of control"

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Spurred by Buffalo Billion, Reformers Look to Fix State Business Subsidies Mon, 19 Oct 2015 00:37:47 +0000
The Week That Was in New York Politics, July 6-10 http://www.gothamgazette.com/?id=5805:the-week-that-was-in-new-york-politics-july-6-10 http://www.gothamgazette.com/?id=5805:the-week-that-was-in-new-york-politics-july-6-10 week in review bus readers

photo: Stanley Kubrick via Museum of the City of New York


Gotham Gazette's Week in Review, Friday July 10

PHOTOS OF THE WEEK: Governor Cuomo appoints AG Schneiderman as a special prosecutor in cases where police officers kill unarmed civilians, via the Governor's Office on flickr (top); mothers of individuals killed by police officers join hands after Cuomo's announcement, via John Taggart (middle); City Hall for the World-Cup-winning US Women's National Soccer Team celebration, via Deputy Mayor Alicia Glen (bottom)

Cuomo Schneiderman mothers 

mothers after cuomo presser
city hall DM Glen

TOP FIVE STORIES OF THE WEEK:

1. De Blasio Announces Bail Reform, ‘Supervised Release’: On Wednesday the de Blasio administration announced that $17.8 million will be allocated to supervise “3,000 eligible defendants safely in the community” instead of detaining them in jail while waiting for trial. Low-level, non-violent offenders will not be asked to pay bail, no longer will those who cannot afford bail be sent to Rikers Island jail to await trial.

2. Attorney General Eric Schneiderman Named Special Prosecutor: On Wednesday evening Governor Cuomo signed an executive order designating Attorney General Schneiderman as a special prosecutor for cases where someone killed by police in instances where the victim is unarmed or if there’s a question of whether or not the victim is armed and dangerous. By Thursday a new special investigations and prosecutions unit had been formed in Schneiderman’s office.

3. Queens Library Corruption: An audit released on Wednesday by Comptroller Scott Stringer revealed that over $310,000 was spent by executives in the Queens Library system on “prohibited expenses.” The Stringer audit includes many eye-popping abuses by Queens Library officials past and present.

4. Cuomo Signs ‘Enough is Enough,’ Comments on De Blasio: On Tuesday Governor Cuomo signed ‘Enough is Enough’ into law, “stepping up protections against sexual assault” at private and public college campuses. On NY1, he also responded to the comments Mayor de Blasio made last week about how disagreements with the Governor result in “some of kind of revenge or vendetta” by saying, “my way is the exact opposite and the proof is in the pudding." De Blasio responded on Thursday, saying “it had to be said.” Then the governor declined to name anything he thought the mayor had done well.

5. NYC Parade for US Soccer Team: On Friday New York City held a ticker-tape parade for the World-Cup-winning United States Women’s National Soccer Team. After winning the World Cup, Mayor de Blasio announced that the team would be saluted along the Canyon of Heroes, a first for a women’s sports team.

THIS WEEK'S NUMBERS:

  • $332,500 will be paid out by New York City to six Occupy Wall Street protesters who say that the police “unjustly blasted them with pepper spray four years ago.”
  • 44,000 feet of scaffolding have been removed from New York City Housing Authority developments not undergoing construction, Mayor de Blasio announced Thursday.
  • $44 million, five-year contract will be awarded to Questar Assessment, to develop new state exams for the New York State Education Department.

THE GLORY AND THE GOAT:

  • It was a good week for political reporters with the return of Mayor de Blasio from vacation, the public sniping between de Blasio and Cuomo resumed, and the continued fallout of Donald Trump.
  • It was a bad week for Pearson, the education testing company at the center of quite a bit of controversy over the years lost out to Questar Assessment for the aforementioned testing contract with New York state.

THE FLASH:

  • Last year around this time, on July 9, 2014, Manhattan Borough President Gale Brewer and Council Member Dan Garodnick presented the representatives on the East Midtown Steering Committee. Now, the committee is set to present its recommendations to the mayor and city planning. 
  • Thirty years ago, on July 10, 1985, then-Mayor Koch announced his candidacy for a third term. He called it “the best job in America.” He would go on to win 74% of the vote.

GOTHAM GAZETTE HIGHLIGHTS OF THE WEEK:

MORE FOR THE WEEKEND:

  • "WNYC teamed up with public radio stations in St. Louis and Baltimore for a multi-city, many-voiced special program on race, community, and policing" hosted by Brian Lehrer.
  • The Economist looks at NYPD Commissioner Bratton's new/old plans.

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NOTE TO READERS: we hope you enjoy this new Gotham Gazette weekly feature - please share it if you do; on Twitter, use our handle @GothamGazette.

If you have feedback on this feature for us, you can email editor Ben Max: bmax@gothamgazette.com

Watch Sunday evening for our latest Week Ahead in New York Politics, which gives you a preview of key issues and events to be aware of for the week about to start. In the meantime, catch up on the latest original reporting from Gotham Gazette here. And have a great weekend!

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by Erika Wang and Ben Max

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The Week That Was in New York Politics, July 6-10 Fri, 10 Jul 2015 17:00:04 +0000
City Council Ready to Act on Bail Reform, Alone if Necessary http://www.gothamgazette.com/?id=5775:city-council-ready-to-act-on-bail-reform-alone-if-necessary http://www.gothamgazette.com/?id=5775:city-council-ready-to-act-on-bail-reform-alone-if-necessary Lancman MMV bail hearing

CM Lancman & Speaker Mark-Viverito at Wednesday's hearing (photo: William Alatriste) 


Wednesday’s oversight hearing made it clear— the question is not if the City Council will move to reform the city’s bail system, but how much reform will they be able to accomplish with their somewhat limited power.

Though the Council appears certain to move to create a $1.4 million city-wide bail fund as proposed by Council Speaker Melissa Mark-Viverito, many advocates called for an elimination of cash bail altogether, and many of the reforms suggested at Wednesday’s hearing would require an amendment to the state’s Criminal Procedure Law - an act that the state legislature would have to take up.

“Until we are able to directly change the broken system, we are going to work within it to limit its injustices,” Council Speaker Mark-Viverito promised Wednesday. The speaker gave opening remarks at the hearing, reiterating her call for major reforms to the justice system.

Over a dozen public defenders, advocates for bail reform, and representatives from the Mayor’s Office of Criminal Justice testified over the course of more than four hours, often giving the same arguments and statistics— that cash bail discriminates against the poor, the merits of supervised release programs, the cumbersome and unjust bureaucracy tangled in the process of paying bail— that boiled down to the same sentiment.

“Our bail system is broken,” said Council Member Rory Lancman, the chair of the Committee on Courts and Legal Services. “Too many people are detained on Rikers not because they have been convicted of a crime, but simply because they are too poor to make bail. This hurts defendants and it hurts taxpayers too, who pay $125 million each year to keep pretrial detainees on Rikers.”

Jerome McElroy, the executive director of the New York City Criminal Justice Agency, a private non-profit agency contracted by the city to provide pre-trial services, recommended that a commission be created to develop a new system that establishes a presumption of release for all non-violent cases, prevents anyone from being detained simply because of his or her inability to post a bond, and limits consideration of pretrial detention to “only the most serious cases.”

“Since each of these elements will provoke serious debate, as will reconciling any changes with due process and speedy trials rules, I expect that significant and much-needed reforms will not be accomplished quickly,” McElroy said.

While most of those testifying said they supported the total elimination of cash bail, many focused their testimony on targeting policies and practices that the city could adopt while continuing to discuss such a significant reform. They cited discouraging district attorneys from asking for bail in misdemeanor cases, reconfiguring the bail-paying process, ensuring that defendents’ financial circumstances are taken into account when setting bail, and expanding supervised release programs.  

The one notable exception was the testimony given by James Quinn, the senior executive assistant district attorney representing the Queens County District Attorney’s Office.

Though Quinn expressed support for making it easier to post bail in the counties where a crime is committed (currently family members of defendants in Queens must personally go to either Rikers Island or corrections facilities in the Bronx, Brooklyn, or Manhattan to post bail once the defendant has been transported to Rikers), he sharply criticized the proposal to set up the city-wide bail fund.

“Bail is designed to ensure that the defendant appears in court when required. It means that he has a financial stake in his appearance,” Quinn said. “If he does not show up, he loses his money. If the City posts the bail, and the defendant does not appear, he loses nothing.”

Quinn’s statement appeared to resonate with at least one New Yorker. Following the hearing on Twitter, one individual tweeted at Council Member Lancman: “When is this council up for election? Is [Mark-Viverito] for real? I should pay [defendents’] bail?"

Lancman tweeted back, “We can pay their $500 bail, or pay $170k/yr at Rikers. [Mark-Viverito] just saved you $169,500.”

The exchange gets at a key issue related to public bail funds: rate of return. One pilot program in the Bronx has noted a 98 percent success rate, thus allowing the fund to replenish itself as bail loans are returned when defendents appear for their court dates.

The Council appears likely to act on the bail fund even without the mayor’s approval, though it is an ongoing part of budget negotiations taking place this month. De Blasio has acknowledged the need for bail reform, but his representatives at Wednesday’s hearing did not commit to anything. Council Member Steven Matteo, one of three Republicans of the Council's 51 members, voiced his opposition on social media Wednesday afternoon, tweeting that a bail fund "is a complete nonstarter" for him, and that "Giving a 'Get Out of Jail Free' card courtesy of the taxpayer is wrong."

Paying mind to concerns during the hearing, Lancman advised Ann Jacobs, the Director of the Prisoner Reentry Institute at John Jay College to “be sensitive to the view of the public” who are concerned about re-arrest rates for defendants out on supervised release programs. Such programs serve to release eligible non-violent defendants who would otherwise be held on bail while requiring ongoing communication.

“I just wouldn’t be dismissive of the public’s concerns about people who are committing low-level misdemeanors,” Lancman said.

But some, like Cherise Fanno Burdeen, the executive director of the Pretrial Justice Institute, pushed harder, saying that such programs would not be necessary if cash bail were eliminated. “A strategy that employs filling potholes is not the same thing as doing what’s needed to repave the road,” Burdeen said.

“The reality that the mayor has to deal with is, we can’t change the statute,” Lancman said. “And the state legislature is not able to deal with this at the moment.” Lancman’s comment was a reference to the fact that state lawmakers are at the end of their legislative session in Albany and struggling to pass even extensions of existing regulations that almost all agree must be extended, especially related to rent regulations.

The Council could look to enforce many of the proposals outlined in Lancman’s preliminary recommendations on bail reform, which include expanding supervised release programs, requiring all actors in the justice system to undergo implicit bias training, requiring the Department of Corrections to create a website that would allow cash bail to be paid online, and requiring that courts inquire into defendants’ financial circumstances before setting bail, something already provided in the current statute but rarely done.

As for the $1.4 million city bail fund?

“We can get it done without the administration’s support,” Mark-Viverito told reporters after she delivered her statement.

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by Catie Edmondson, Gotham Gazette
@CatieEdmondson

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City Council Ready to Act on Bail Reform, Alone if Necessary Wed, 17 Jun 2015 19:35:31 +0000