Gotham Gazette http://www.gothamgazette.com/component/tags/tag/168 Mon, 25 Jun 2018 07:45:47 +0000 Joomla! - Open Source Content Management en-gb webmaster@gothamgazette.com (Webmaster) Max & Murphy Podcast: Criminal Justice Reform in New York http://www.gothamgazette.com/?id=7712:max-murphy-podcast-criminal-justice-reform-in-new-york http://www.gothamgazette.com/?id=7712:max-murphy-podcast-criminal-justice-reform-in-new-york

Jarrett Murphy, left, of City Limits, and Ben Max, right, of Gotham Gazette


June 5, 2018 - Max & Murphy Podcast: Criminal Justice Reform in New York

fortune society reps for 277

The Fortune Society is on the front lines in the fight to keep people out of jail, help those leaving jail successfully reenter larger society, advocate for criminal justice reforms, and make sure that housing, jobs, and social services are available to all. JoAnne Page, president and CEO of the Fortune Society, and Stanley Richards, Fortune's executive vice president and a formerly incarcerated person, joined the podcast to discuss a wide range of topics related to the work they do, criminal justice policy, and next steps in New York for a fairer justice system.

Listen to the full conversation and let us know what you think -- we're on Twitter @TweetBenMax and @JarrettMurphy. You can listen to the episode through the embedded audio below or download the episode wherever you get your podcasts.

***
by Ben Max, Gotham Gazette
     

Read more by this writer.

]]>
Max & Murphy Podcast: Criminal Justice Reform in New York Tue, 05 Jun 2018 04:00:00 +0000
City Must Stop Using Incarcerated People as Revenue Source http://www.gothamgazette.com/?id=7628:city-must-stop-using-incarcerated-people-as-revenue-source http://www.gothamgazette.com/?id=7628:city-must-stop-using-incarcerated-people-as-revenue-source mayor depart cc ponte rikers island

(Michael Appleton/Mayoral Photography Office)


The City of New York, like many cities and states across the country, profits from people experiencing poverty who come into contact with the criminal justice system. New York imposes a plethora of fees on persons charged with and/or convicted of a crime or minor infraction, ranging from a fee to support the DNA Bank, to an incarceration fee, to a fee for parole or probation.

Among the most egregious of these fees involve phone calls in New York City jails. New York City reaps millions of dollars in profits from people who are in city jails and simply want to make a phone call.

Many of these people have not been convicted of a crime. Nearly 75% of people in New York City jails are held pretrial, many because they were arrested and cannot afford to make bail. Some are in jail serving short sentences for minor misdemeanor offenses. All just want to talk with family, friends, or their attorney.

On Monday, the City Council will take the next step in exploring the opportunity to end this predatory practice when it debates a bill, Intro. 0741, introduced by Speaker Corey Johnson. The bill would put a stop to the City’s practice of using the jail phone as a revenue center. Passing it would be a first and important step toward ending what is truly a tax on justice.

Over the last 30 years, as rates of arrest and incarceration skyrocketed across the country, jurisdictions struggled to pay for the bloated justice system. Cities, counties, and states increasingly tried to generate revenue by imposing fees on people, including children, arrested for and convicted of crimes. In California, the state adds $390 in fees to the $100 fine imposed for running a red light. In Washington State, courts impose an average of $1,347 on every criminal conviction. In New York, people convicted of felonies face mandatory fees of $300; for misdemeanor convictions, the fee is $175.  

Although the criminal justice system is a vital government service meant to protect everyone’s public safety, more and more jurisdictions turned toward a “user-funded” system, unfairly demanding that some of the poorest Americans shoulder the burden.

Justice system fees disproportionately harm low-income people and their families who cannot afford to pay them. Communities of color are particularly devastated because they experience higher rates of poverty and over-policing in their communities. It is a burden that is often too heavy to bear. For the millions of people who cannot afford to pay them, outstanding fees trap them in the justice system for prolonged periods, entrenching poverty, exacerbating racial and ethnic disparities, and diminishing trust in government. And, because so many people cannot afford to pay them, criminal justice fees often generate less revenue than expected.

Some local and state governments have gone beyond simply trying to recoup costs through justice system fees and are trying to generate profits by imposing fees on people who are incarcerated, regardless of whether they have been convicted of any crime. In jurisdictions across the country, fees for “services” in jails and prisons (including exorbitant mark-ups on items for sale in the commissary) as well as fees for mail and “video” visitation are routinely imposed. New York City’s phone fee is a prime example of this unjust, discriminatory, and misguided policy.

Like all justice system fees, the phone fee particularly harms the city’s most vulnerable communities. It may also diminish public safety. When people in jail can’t afford to pay for phone calls, they can be cut off from contact with their families. Research shows that regular communication between incarcerated people and their loved ones correlates with lower recidivism and higher opportunity for successful re-entry to society.

We know the phone fee disproportionately harms people experiencing poverty and communities of color and may lead to higher recidivism rates. Yet, New York City government plans to extract millions of dollars next year from families who wish to stay in contact with their loved ones in City jails. Indeed, the mayor’s proposed budget anticipates that the Department of Corrections will collect nearly $6 million in profits from phone calls made by people incarcerated in city jails. But, budget negotiations between the de Blasio administration and the City Council have until the end of June to get it right.

The Council Speaker’s bill would stop the City from profiting from people who have already been targeted and trapped by a system that takes away freedom, dignity, and hope. It would help ensure that people who are incarcerated maintain critical community ties while they are in jail, increasing their opportunity for successful re-entry when they are released. It should be adopted by the Council and signed by the mayor.

***
Joanna Weiss is the Co-Director of the Fines and Fees Justice Center. Brandon J. Holmes is the #CLOSErikers Campaign Coordinator for JustLeadershipUSA. On Twitter @joannagweiss and @BJHolmes_NYC.

***
Have an op-ed idea or submission for Gotham Gazette? Email opinion@gothamgazette.com

]]>
City Must Stop Using Incarcerated People as Revenue Source Sun, 22 Apr 2018 04:00:00 +0000
The Justice System Case for Radical Incrementalism http://www.gothamgazette.com/?id=7618:the-justice-system-case-for-radical-incrementalism http://www.gothamgazette.com/?id=7618:the-justice-system-case-for-radical-incrementalism mbdb graduation

(photo: Ed Reed/Mayoral Photography Office)


Social media was full of despair as advocates bemoaned the failure of New York state government to approve bail reform legislation in the recently-passed budget. The push to eliminate cash bail brought together dozens of organizations and hundreds of concerned citizens to advance an important reform. This kind of mobilization is not atypical – advocacy campaigns tend to focus on passing legislation or electing officials.

Eliminating cash bail is a good idea, and over time, our bet is that it will end up succeeding in Albany. But we know from the Independent Commission on New York City Criminal Justice and Incarceration Reform chaired by former Chief Judge Jonathan Lippman that you don’t need to pass new legislation in order to transform the justice system. Indeed, the commission made the case that it is possible to reimagine criminal justice in New York City – including closing Rikers Island – without any new legislation whatsoever. In fact, this process is already underway.  

The Mayor’s Office of Criminal Justice has just announced that the city's jail population is now less than 8,500 – down from a high of over 20,000 in the 1990s. This did not happen overnight. It also did not happen thanks to the passage of any single piece of legislation or the election of any single official.

Reducing incarceration in New York City took place over the course of multiple decades and mayoral administrations. It was a slow, incremental process, involving dozens, if not hundreds of decisions by different agencies and actors, the vast majority of which never made newspaper headlines. For example, in 1997, New York City’s criminal court judges released roughly 50 percent of defendants on their own recognizance pending trial, without setting bail. Today, this figure is closer to 70 percent. The implications of this shift in practice are enormous – it adds up to tens of thousands of defendants being given the chance to avoid the harms and abuses of Rikers Island.  

Based on our work in New York and our recent examination of successful reform efforts across the country in Start Here, we argue for an approach to criminal justice reform that focuses on practice not politics. We believe that we need to transform the culture of our justice system – and that the best way to achieve this is by working directly with the police officers, prosecutors, judges, and correctional officials who staff our precincts, jails, and courts to help them change the way they do their jobs on a daily basis.

Many criminal justice reformers go over the heads of practitioners and speak directly to elected officials. Legislating change is an enormously tempting path to pursue. A successful bill in Albany or Washington can alter the course of government more or less overnight. At least that's the promise. In reality, things often don't pan out that way.

As Michael Lipsky pointed out more than a generation ago in Street-Level Bureaucracy, frontline staffers can sabotage or undermine any initiative that they do not believe in. That's why real criminal justice reform requires time – time to change the hearts and minds of the people who run the criminal justice system.

Let’s be real: it can be profoundly frustrating to take an incrementalist approach to reform. While there is much to celebrate in New York City, which now has the lowest rate of incarceration of any major American city to go along with dramatically reduced levels of crime, there is also much work still to be done. A trip to criminal court reveals that racial disparities are still very much with us. A visit to Rikers Island indicates that we have a long way to go before we can say that our system treats defendants with decency and dignity.

Here are three changes in practice that would go a long way toward making our justice system more fair and more effective.

First, police officers and prosecutors need to create off-ramps so that more low-level cases can be diverted out of the system entirely. Second, judges and court administrators need to do everything in their power to expedite case processing and avoid unnecessary delays – especially when defendants are being held in jail pretrial. And finally, elected officials need to make deeper investments in pretrial services and alternative sentencing programs so that judges have options beyond jail and nothing.

None of these fixes requires new laws to be passed -- just the active engagement of the people who run the justice system in New York City. The good news is that policymakers are aggressively pursuing all of the above.

New York City is a case study for the kind of justice reform that takes a long time to see to fruition – but it’s the kind of reform that is both durable and sustainable. The process is gradual; the results are nothing short of radical.  

***
Greg Berman is the director of the Center for Court Innovation and co-author of Start Here: A Road Map to Reducing Incarceration (The New Press). Julian Adler is the director of policy and research at the Center for Court Innovation and co-author of Start Here.

***
Have an op-ed idea or submission for Gotham Gazette? Email opinion@gothamgazette.com

]]>
The Justice System Case for Radical Incrementalism Wed, 18 Apr 2018 04:00:00 +0000
Shut Down Rikers Island, and Don’t Replace It http://www.gothamgazette.com/?id=7342:shut-down-rikers-island-and-don-t-replace-it http://www.gothamgazette.com/?id=7342:shut-down-rikers-island-and-don-t-replace-it de Blasio Rikers jail

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


Due to the work many have done to illuminate the dehumanization and torture rampant on Rikers Island, city officials are finally proposing tangible steps to shut it down. This Monday, December 4, the New York City Council will hear testimony on progress being made toward closing the Rikers Island jails. Much of the discussion around closing Rikers jails, sure to continue Monday, centers on reducing the overall jail population in the city, but also on replacing available jail space.

As politicians and city agencies share plans to shut down the island’s ten-jail complex, it is imperative that the people of New York recognize the impact of these proposals: the modernization and adaptation of New York City’s jails will ultimately expand the scope of surveillance and imprisonment in the city and state.

The challenge going forward is to resist the prevailing attitude that the horror of jail is unique to Rikers Island and not inherent to the institution of jail itself, and to prevent the expansion of the jail system under the guise of reforms, improvements, and repairs. Critical Resistance NYC and the imprisoned organizers with whom we work recognize that jail systems cannot be converted into something humane and that the solution to the violence of Rikers cannot be a new kind of imprisonment.

Mayor Bill de Blasio’s plan calls for a ten-year process of depopulation, renovation, and new construction that will eventually result in the closure of Rikers, but we call out these strategies, outlined in his Smaller, Safer, Fairer “roadmap” for closing Rikers, as simply an extension to the life of the system. Closing Rikers only to replace it with new “state-of-the-art” jails and an expanded network of technologically-driven monitoring does nothing to alleviate the material consequences of detention and imprisonment or to curtail the reach of the prison industrial complex in New York. Instead, the city must implement tangible policies that bring us closer to ending the use of pre-trial detention altogether.

With millions of dollars allocated for repairs and technological upgrades to existing facilities on Rikers, the Department of Correction’s budget does not reflect the claim that we are on a path to divesting from the very system that produced the horrific conditions that now warrant the closure of Rikers. Repairs to facilities marked as problematic and slated for demolition squander funds that could otherwise be spent on life-sustaining services that address social and economic needs and on community-led initiatives for addressing harm and accountability in non-punitive ways.

The Mayor’s plan to shrink the jail population without more significantly shrinking the number of people who are policed, criminalized, and arrested in the first place is not an effective path to decarceration. Reductions that aim to stop the flow of people into the city’s jail system could start immediately – in particular, by putting an end to broken windows and community policing, which only increase police presence in our neighborhoods and broaden their jurisdiction over virtually every aspect of our lives, especially in communities of color. New York City must refuse imprisonment and mandated monitoring as sustainable solutions. Instead, we must build a city-wide system that guarantees transformative, voluntary social services as well as resources that support people released from jail in order to facilitate the immediate jail depopulation that will actually move us closer to closing Rikers while making any new jails obsolete.

The city’s decision-makers must abandon any process to close Rikers that feeds, expands, and further calcifies the city’s jail system. We cannot truly overcome the violent reality of Rikers if our solution to its abuses depends on deepening wasteful spending in other jails and new forms of surveillance and monitoring in our communities. We must work to shift priorities from imprisonment and control to supporting and amplifying true community-led solutions to conflict, harm, and violence that strengthen community stability and meet people’s needs.

***
Kate Hudson and Marlene Nava Ramos are members of the New York City chapter of Critical Resistance, a national, member-led organization that seeks to create genuinely healthy and stable communities that respond to harm without relying on imprisonment, policing, and punishment.

***
Have an op-ed idea or submission for Gotham Gazette? Email opinion@gothamgazette.com

]]>
Shut Down Rikers Island, and Don’t Replace It Thu, 30 Nov 2017 05:00:00 +0000
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.

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

***
Have an op-ed idea or submission for Gotham Gazette? Email opinion@gothamgazette.com

]]>
As We Close Rikers, Setting Our Sights on Essential State-Level Reforms Wed, 18 Oct 2017 04:00:00 +0000
State Electeds Insult City Criminal Justice While Reform in Albany is Minimal at Best http://www.gothamgazette.com/?id=6837:state-electeds-insult-city-criminal-justice-while-reform-in-albany-is-minimal-at-best http://www.gothamgazette.com/?id=6837:state-electeds-insult-city-criminal-justice-while-reform-in-albany-is-minimal-at-best Cuomo prison break

Gov. Cuomo at Dannemora correctional facility (photo: Governor's Office)


Last week, State Senator Jesse Hamilton mailed a flier to his constituents strongly denouncing broken windows policing. The senator, who represents Crown Heights and surrounding neighborhoods in Brooklyn, called on the city to end arrests for minor quality-of-life offenses that “are often used to police black and brown bodies.”

The week before, during a speech in Manhattan, Governor Cuomo disparaged Mayor de Blasio for failing to close the notorious Rikers Island jail, accusing the mayor of “impotence.”

These criticisms of the city come as the state government, led by Cuomo, struggles to make its own reforms to New York’s criminal justice system. Current state budget negotiations include a push to “raise the age” of criminal responsibility so that 16- and 17-year-olds are largely prosecuted as juveniles, not adults. But the measure, which is seeing new daylight this year, has faced strong opposition from Senate Republicans for years, despite the fact that New York is now one of just two states that tries 16- and 17-year-olds as adults.

Senate Republicans want teenagers charged with violent crimes to be tried as adults and they want all 16- and 17-year-olds tried in criminal, not family, court.  

The Republican Conference holds a plurality in the Senate—and the power that comes with it—in part because Senator Hamilton and the seven other members of the Independent Democratic Conference (IDC) do not caucus with the Democrats. Nominal “Democrat” Senator Simcha Felder caucuses with Republicans, giving the GOP a 32-seat bare majority in the 63-seat chamber.

But Senator Hamilton says that far from diluting the “raise the age” effort, his position in the IDC empowers progressive reform like it. “I, along with my colleagues in the IDC, have pushed Raise the Age further than ever before in the New York State Senate,” he said. “My advocacy around broken windows policing is motivated by my support for Raise the Age.”

For their part, city officials are defending their approach and pointing the finger back at the state. At a recent press conference, Mayor de Blasio was asked about Cuomo’s Rikers comments, and said, “Our job is to address this crisis [on Rikers Island]. We’ve been doing it for three straight years…The state’s job is to take care of the state prison system."

City Council Member Carlos Menchaca exchanged sharp words with Senator Hamilton on Twitter, asking him, “What law are you advancing at the state level to curb the impact of Broken Windows policing?”

Since that exchange, Senator Hamilton has introduced a bill to make turnstile jumping -- perhaps the prototypical broken windows offense -- a violation instead of a misdemeanor. Evading the subway fare is a charge the NYPD disproportionately brings against young black and Latino New Yorkers. Since city police enforce state laws, that is one avenue state legislators could use to influence city criminal justice.

Senator Hamilton, who is black, spoke of his son as a motivation for opposing broken windows policing and for supporting raising the age. “He’s at an age where ‘the talk’—about young black men, safety, and interactions with police—is not an abstraction.”

If the state raises the age of criminal responsibility, it will be the first major criminal justice reform legislation since the law ending the shackling of pregnant inmates in 2015. Executive action on prison reform has also slowed recently. After closing 13 prisons in his first term, Governor Cuomo has not closed any since 2013, even while the state prison population has continued to decline.

Last year, the governor also vetoed a bipartisan bill that would have increased funding to public defenders in the state. Cuomo insists he’s open to similar legislation but that it must be done through the budget.

And a New York Times report about rampant racial bias in New York State’s parole system led Cuomo to launch an investigation, but no findings have been made public and the parole system is unchanged.

Parole reform is on the list of criminal justice changes that advocates have long hoped New York State would take up. The list also includes reform to the bail system, ending the use of solitary confinement, and a bill to accelerate trials. Republican control of the Senate, aided by the IDC, makes further reforms less likely.

“The speedy trial bill, Kalief’s Law, should be a no-brainer,” said gabriel sayegh*, the Co-Executive Director of Katal, an organization fighting mass incarceration. “It would reduce pre-trial detention in jails.” The bill passed the Assembly unanimously, but has stalled in the Senate. “Even common sense bills that have bi-partisan support don’t get done,” sayegh said.

“I don’t think it’s a problem when state folks speak out on city issues, or vice versa,” continued sayegh. “We are eager to have the governor support the speedy trial bill, which would help us close Rikers. We want to see Senator Hamilton follow through by advancing legislation at the state level that addresses disparities in policing practices and arrests. They should connect their comments to action.”

***
Brenden Beck is a PhD candidate in sociology at the CUNY Graduate Center researching police, suburbs, inequality, and housing. On Twitter @BrendenBeck.

***
Have an op-ed idea or submission for Gotham Gazette? Email opinion@gothamgazette.com

*sayegh spells his name with all lowercase letters

]]>
State Electeds Insult City Criminal Justice While Reform in Albany is Minimal at Best Tue, 28 Mar 2017 04:00:00 +0000
Bias in New York Prisons Requires a Blue Ribbon Commission Investigation http://www.gothamgazette.com/?id=6674:bias-in-new-york-prisons-requires-a-blue-ribbon-commission-investigation http://www.gothamgazette.com/?id=6674:bias-in-new-york-prisons-requires-a-blue-ribbon-commission-investigation cuomo prison

Gov. Cuomo on a prison tour (photo via Governor's Office on flickr)


According to The Sentencing Project, New York State has led the nation by reducing its prison population by 26 percent between 1999 and 2012, while the nationwide state prison population increased by 10 percent. During these years of decarceration, violent crime rates fell at a greater rate in New York than national averages.

Yet, despite New York’s lead in simultaneously decarcerating its prison system and reducing crime, racial disparities throughout New York’s criminal justice system remain unchanged.

Recent investigative reports by The New York Times show how racial bias is infecting New York State prisons. The paper’s investigation found that black people in prison are punished at significantly higher rates than whites, sent to solitary confinement more often, and detained longer.

In response, Governor Andrew Cuomo directed the state inspector general to investigate these “allegations” and recommend appropriate reforms for immediate implementation.

This is not enough.

Governor Cuomo must use his executive power to create a diverse, non-partisan Blue Ribbon Commission to investigate the widespread racial bias throughout New York State’s criminal justice system.

The commission’s independent investigation should go well beyond rooting out structurally racist practices in our prison and parole systems. It should undertake a comprehensive review of the state’s entire criminal justice system, from arrest to reentry, within a definitive timeline.

JustLeadershipUSA believes that those closest to the problem are also closest to the solution, but furthest from the resources and power. To that end, the governor must ensure that the commission includes formerly incarcerated leaders. The commission also should represent the interests of the gamut of other people and groups that interact with the criminal justice system— prosecutors, judges, police and correction officers, people in prison, defense attorneys, advocacy groups, think tanks, victims’ rights organizations, and academics.

After convening, reviewing practices and policies, listening to stakeholders, hearing from experts, and problem-solving for 12 months, this commission should then make recommendations for criminal justice reform to the governor and state Legislature, and disseminate its findings to the public.

In addition to appointing a Blue Ribbon Commission, the governor should use his executive power immediately to address the issues of parole and solitary confinement. With regard to parole, Governor Cuomo should:

  • Nominate more professionally, racially, and geographically diverse parole board candidates who more accurately represent the New York communities most impacted by crime and incarceration.
  • Increase transparency by publicly releasing data annually to provide clarity into parole decision-making.
  • Increase bandwidth of parole board members to ensure that cases are reviewed in person and with the thoughtfulness they deserve.

To truly address the issue of solitary confinement, Governor Cuomo should create a timeline for discontinuing the use of all solitary confinement and punitive segregation throughout the state prison system. He should also direct the state Department of Corrections and Community Supervision (NYSDOCCS) to immediately ensure that far fewer people are placed in solitary confinement.

And if people are sent to solitary, at the very least conditions and health care should be improved, time spent in solitary should be reduced, and detainees should receive a clear path, based on achievable goals, to earn their way out of solitary.

We will not dismantle hundreds of years of racial bias and discrimination in our criminal justice system in a vacuum. Instead, we must collaborate and engage with impacted people from varying walks of life.

If Governor Cuomo is truly committed to creating systemic change, the creation of a nonpartisan Blue Ribbon Commission is critical to uncovering the disparities in our prisons and our broader criminal justice system and identifying and implementing solutions. Together, we can work toward restoring a historically broken and racially inequitable system.

***
Glenn E. Martin is the founder and president of JustLeadershipUSA (JLUSA), a national organization dedicated to cutting the U.S. correctional population in half by 2030. JLUSA empowers people most affected by incarceration to drive policy reform. Martin is a national leader and criminal justice reform advocate who spent six years in New York prisons. He is the recipient of the 2016 Robert F. Kennedy Human Rights Award. On Twitter @GlennEMartin.

***
Have an op-ed idea or submission for Gotham Gazette? Email opinion@gothamgazette.com

]]>
Bias in New York Prisons Requires a Blue Ribbon Commission Investigation Thu, 15 Dec 2016 05:00:00 +0000
Lobbying Cuomo: How to Get the Governor on Your Side http://www.gothamgazette.com/?id=6567:lobbying-cuomo-how-to-get-the-governor-on-your-side http://www.gothamgazette.com/?id=6567:lobbying-cuomo-how-to-get-the-governor-on-your-side Cuomo speech better NY

Gov. Cuomo (photo: Don Pollard/Governor's Office)


Have an issue you want addressed in Albany? Perhaps you’d like the state to legalize your new multi-million dollar venture into the “sharing economy” -- one that terrifies existing business interests and labor unions; maybe you want to change the protections offered by New York’s civil rights laws; or maybe you want in on the hundreds of millions of dollars the state allocates to economic development programs. No matter the issue, you’re going to want Governor Andrew Cuomo, the most powerful person in New York, on your side.

Cuomo, a Democrat known to get his way in Albany, is revered by many for being able to dictate terms to the state Legislature on controversial issues and accomplishing what could not be accomplished by others, once he sets his mind to it.

But while the governor sometimes has his own pet issues that he pushes with intensity, he often doesn’t come along easily on a cause. And if campaign finance filings are any indication, Cuomo doesn’t often move without significant campaign donations either before or after the fact. A lot of the time the notoriously prickly governor, whose administration has been known for its “get along or kill” approach, won’t get behind an issue without a fight. But taking Cuomo on in any public way comes with serious risk and can have major consequences.

Those, whether deep-pocketed or not, interested in seeing the governor support an issue he is not immediately draw to must wrestle with the best approach to lobbying Cuomo.

As government is a continuous stream of policy and program decisions, there are no shortage of interested parties pushing their causes, and the governor often has the final word, legislators, labor groups, lobbyists, and others often must decide what combination of tactics is best to convince Cuomo to back a proposal.

Gotham Gazette spoke to a number of lobbyists and heads of issue-focused campaigns about what a successful lobbying effort needs in order to get the right kind of attention from Cuomo.

As this article is published, public education advocates are finishing a walk from New York City to Albany to push for school funding and the governor continues to weigh whether to sign a bill that could crush Airbnb in the state. These are just two examples of current issues where people are trying put pressure on the governor to act. For the former, teachers-union-backed advocates have jousted with Cuomo to the point of hostility. On the latter, those who want to see Cuomo sign the bill regulated Airbnb have mostly left him alone publicly, while Airbnb has more outwardly sought to make its case for a veto.

Looking ahead to 2017, there will be no shortage of issues where interested parties will be trying to convince the governor and the Legislature to act one way or another, from upstate Uber legalization to the cap on charter schools and much more.

To court just about any elected official, you need at least one of: a ground game, as in grassroots supporters willing to demonstrate publicly and able to grab media attention, or at least the appearance of one; a money game, as in the ability to show that your cause has the attention of large campaign donors; and a behind-the-scenes game, as in the ability to influence insiders, which many include consistent, even constant, lobbying and contact with key administration officials. The ground game and the money game usually indicate, to varying degrees, that you have some semblance of solid rationale to your proposal.

Along with these basics, lobbyists have to consider the nuances of Gov. Cuomo’s personality and long history in politics. Known as a master strategist, Cuomo is also seen as flexible on many of his political stances because he, like many governors, tries to combine being socially liberal and fiscally conservative. The key with Cuomo is often showing him how the proposal fits his image and gives him a chance to be big and bold. Cuomo is not shy about wanting to be first on issues.

“People have to be very sensitive when they deal with the administration,” said Blair Horner of the New York Public Interest Research Group, which often pushes the administration on reform. “They have to be very careful not to come off as a threat to the administration because the administration is a unitary organization. The governor deals with politics and policy directly, in a way that is unseen in other states. When a group works with him he likes it and when groups work against him, he hates it.”

Cuomo likes, of course, to move on things when he’s ready to, and when they make sense for him politically and for the state generally. He is keenly aware of his political standing among key constituencies and of what it takes to remain in power.

There’s a long line of lobbyists willing to lament off the record about being “put in the penalty box” by the administration for one public statement or another: a quote that was too sharp, a press release that was too pointed. For some the penalty is being denied access to the administration for a period of time; for others penalties mount and they end up with an outright ban. “It's as though you no longer exist to them,” one lobbyist told Gotham Gazette. “They forget your name and encourage everyone else to do the same.”*

With six years as New York’s chief executive, it's become clear to a number of lobbyists that the best way to get Cuomo onboard with a policy proposal is to present a campaign that has everything: grassroots supporters who can promote an issue and also make life miserable for the opposition; big-money donors who can support major campaign efforts; and a lobbying apparatus that works behind the scenes to sway legislators.

“If you are going to confront this Governor and any Governor, really, you have to show public opinion is with you,” said Horner. “And if the donor class is upset it can also move the administration. Put both together and you’ve got something.”

Cuomo has made his name as Governor by joining with these type of efforts, from marriage equality to the minimum wage. Including several recent examples, the governor does appear susceptible to loud outcry by a group of advocates, whether it is on police killings of unarmed civilians, allocating affordable housing funds, or a moratorium on fracking.

“The most successful lobbying efforts in New York combine grassroots supporters with major donors,” said John Kaehny, executive director of Reinvent Albany, also a government reform group.

When Cuomo ran for Governor in 2010, he was far from an outspoken supporter of marriage equality, but early in his term it became clear that several major donors were interested in advancing the policy behind the scenes, while activist groups were more than willing to press the issue publicly. Essentially, it would also give Cuomo a chance to make big, national news.

A vote on marriage equality had failed by inches under Gov. David Paterson and advocates weren’t ready to give up. Cuomo initially feared the same kind of embarrassing result that befell Paterson -- left standing on the state Senate floor with dissapointed legislators.

According to two sources involved in the campaign, Cuomo saw the opportunity to lead on a national issue while endearing himself to his liberal base at the same time he was angering other parts of that base by advancing fiscally conservative measures.

When Cuomo decides he wants to accomplish something - no matter how much cajoling it takes to get him there - he goes after his goal aggressively.

The Cuomo administration and a number of wealthy donors, including hedge fund managers Dan Loeb and Cliff Asness, quickly began the work of wooing Senate Republicans to their side, and by June 24, 2011 Cuomo had the votes he needed to pass marriage equality in New York. The administration monitored the floor vote in the Senate obsessively, interjecting at times to ensure Senate Republicans would not renege on their promise to bring the bill to a vote and to show sensitivity to the Republican members who had made what would be a career-ending decision to vote for it.

The proceedings were so tightly choreographed that most Senate Democrats who supported the bill were not allowed to speak about it. When the final votes were cast Cuomo took to the airwaves to claim credit for a successful campaign that a year before he seemed uninterested in.

Donations from grateful supporters of marriage equality swept into Cuomo’s campaign coffers before and after the vote. The Empire State Pride Agenda gave Cuomo $60,000 in May 2011; Loeb gave Cuomo $19,367 in 2012; and a number of marriage equality supporters organized high-dollar fundraisers for the governor.

The governor has repeated these kind of issue campaign takeovers in years since, showcasing the power of his elected position with the virtually unmatched will and desire for big accomplishments possessed by the officeholder.

“I got the sense that within the right national political moment anything is possible with the governor,” one veteran social justice advocate told Gotham Gazette of Cuomo. “It is on the table as long as he is the first to do something.”*

That feeling was reinforced in 2015 when Cuomo suddenly paired with the Service Employees International Union (SEIU) “Fight for $15” to champion a minimum wage increase he had once dismissed as fantasy. Cuomo was working alongside some of his biggest critics from the left, like Michael Kink and Citizen Action and other Working Families Party members, while touring the state in a recreational vehicle paid for by unions. The governor, who at times in the past was the target of angry Fight for $15 rallies, was now attending them and hosting streaming video of them on his website.

Labor groups poured nearly $2 million into the Mario Cuomo Campaign For Economic Justice - most of the cash from SEIU and its various committees and affiliates.

SEIU is also a consistent donor to Cuomo’s reelection campaign and the campaigns of his allies.

The Fight for $15 had gotten the governor on board after showing a groundswell on the issue, with the power of active and deep-pocketed labor unions, and in the wake of an embarrassing challenge from the governor’s left in his 2014 re-election. Big name Democrats were also taking up the issue and becoming heroes to significant blocs of Democratic voters.

While large public campaigns that involve the governor have clearly been effective, perhaps the most impactful lobbying of Cuomo is done almost completely out of public eye.

Multiple lobbyists point to Cuomo’s relationships with 1199-SEIU, the powerful hospital workers union, and Jennifer Cunningham of the firm SKD Knickerbocker as ideal arrangements for an issue-focused organization and a lobbyist looking to move their agendas in New York.

Cunningham has been labeled “The Most Powerful Woman in Albany” and was an adviser to Cuomo during his early years as Governor. Cunningham and 1199 annihilated Paterson’s ambitions to run for election in 2010, unleashing a brutal $1 million a week advertising campaign in response to his proposed $3.5 billion cut to the state’s Medicaid program.

Cunningham declined to comment or be interviewed for this article.

Cuomo has handled the union much differently than many others, giving it a seat at the table when cuts are proposed and rarely, if ever, having any public conflict with it.

“They are the most powerful lobbying force in the state,” marveled one lobbyist. “They combine labor and management and are extremely sophisticated. They are so powerful you don’t have to hear about them until they have to crush someone. There is no fight with them because it's like, ‘Godzilla is in my closet. Do I need to let him out to stomp on you?’”

Most lobbyists and issue groups don’t have an operation anywhere near the scope of 1199-SEIU, and over the last two years smaller advocacy groups have been confronted with how to lobby the administration on limited resources.

For groups pushing for criminal justice reform and for state government to fund supportive and affordable housing, for example, lobbying the administration in a friendly manner failed initially and they took the risk of confronting the governor publicly.

Shelly Nortz of Coalition for the Homeless said that 2014 efforts to get the Cuomo administration to deliver on supportive housing funding. The group continued to pressure Cuomo, working with and praising Mayor Bill de Blasio, Cuomo’s rival, for his supportive housing initiative in 2015, and then getting more and more vocal calling for Cuomo to do what they said was his part.

The Coalition and its allies were encouraged when Cuomo prioritized funding to fight homelessness in his 2016 State of the State address, but when the governor and the Legislature failed to agree on how to distribute it, Nortz’s group kicked the public pressure campaign into high gear.

“We’ve been having a presence outside the governor’s office,” Nortz said of regular rallies to call for release of the funds set aside in the state budget. As the group and other members of the NY/NY Housing coalition have issued press releases and done interviews on the subject, sometimes harshly criticizing Cuomo, the governor’s office has reacted in various ways. At one point, an administration spokesperson said that the governor hadn’t intended to sign the memorandum of understanding (MOU) that would distribute the housing funds this year and instead expected to do it next year.

After being rebuffed, the administration tried a different path: releasing an MOU approved by the administration, essentially to move the ball into state legislative leaders’ court. The MOU wasn’t signed by either legislative leader, but it was an indication that the administration was squirming under the pressure brought by housing groups.

Nortz acknowledged that most small advocacy groups can’t manage to turn out the kind of presence housing groups have to pressure the governor. She said she is unsure how effective their efforts have been given that the MOU remains unsigned. “It’s reminiscent of 2014 in a lot of ways,” said Nortz. “There is talk but there is no agreement.”

Criminal justice reform advocates describe having to pull Cuomo forward kicking and screaming to ensure oversight by a special prosecutor in instances of police killings of civilians. In 2015 the governor felt pressure from the mothers and family members of civilians killed by police, black and Latino legislators, and major advocacy groups. Unable to move the Legislature to action during session, activists didn’t let go, instead amplifying their calls for the governor to do something.

On July 8, 2015 Cuomo announced an executive order giving the Attorney General jurisdiction to investigate police killings of civilians. The move angered many conservatives and law enforcement officials across the state, but pleased many activists and elected officials, especially legislators of color, many of whom joined Cuomo at the signing of the order.

Advocates involved in the push say they believe they were successful in moving Cuomo because the governor is particularly sensitive about his most concentrated voting base, which consists of African-Americans from New York City. Furthermore, Cuomo was able to claim that he was “the first” governor to take action on what was coming into focus as a major national issue.

While the executive order was a victory for advocates, their momentum has stalled since. Cuomo has acknowledged that he would like to see legislation to make a special prosecutor permanent in such cases, but he has not pushed the issue with the Republican Senate Majority, where opposition lies.

A number of lobbyists say this is a typical result for a lobbying effort that confronts and calls out Gov. Cuomo. “They got something but they didn’t get all of it,” said one long-time lobbyist. “You can rattle him and force him to move to stop the bleeding but it isn’t the best move in the long run.”

Advocates, legislators, businesspeople, and lobbyists who don’t have a direct line to Cuomo or a long-standing alliance are often faced with that risky question of when to go at the governor with an aggressive public relations campaign. They can pay off wildly or they can put you on the governor’s bad side -- sometimes both.

Business lobbyists say confrontational campaigns are their absolute last resort with any administration, but note that smaller issue-based groups don’t have a wealth of options at their disposal.

Efforts to expand newer, technology-based businesses like Airbnb and Uber have set the stage for what some lobbyists say will be “heavyweight showdowns” with the well-established hotel trades and taxi lobbies, respectively. As Cuomo weighs whether to sign a bill that would be damaging to Airbnb, both supporters and opponents of the bill have struggled some with how to cajole him in their direction, especially around how much public pressure to mount.

U.S. Attorney Preet Bharara’s investigation into the Governor’s economic development programs has put considerably more scrutiny on how lobbyists and those with business before the state use donations to get the attention of the governor and his closest allies. Fear over corruption was triggered because major developers, including two charged by Bharara, made major donations to Cuomo’s reelection campaign within months of winning major economic development contracts with the state. Bharara has also charged three of Cuomo’s allies with working to fix bids for the contractors they prefer. Cuomo has denied knowledge of the alleged arrangement and he has not been accused of wrongdoing, but it is his campaign that benefited.

New York lacks the conflict of interest laws that limit campaign contributions from groups with business before the state. A July report by Politico New York showed that most of the donors to Cuomo’s campaign have business before the state, or interest in pending legislation. Cuomo has always claimed that he makes decisions on the merits.

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

Read more by this writer.

*Note: due to a mistake on the part of Gotham Gazette, attempts to reach the Cuomo administration for comment for this article did not reach the intended party. Cuomo's office should have been afforded to opportunity to respond to the questins at hand in this article, including certain allegations, and we apologize for the error. A prior note that indicated Cuomo's office did not respond to a request for comment was removed after it became clear that requests for comment did not reach representatives for Cuomo. After making this realization in communication with Cuomo's office, Gotham Gazette offered the Cuomo administration an opportunity to comment.

]]>
Lobbying Cuomo: How to Get the Governor on Your Side Tue, 11 Oct 2016 04:00:00 +0000
Criminal Justice Reform Again Given Little Attention in Budget Negotiations http://www.gothamgazette.com/?id=6249:criminal-justice-reform-again-given-little-attention-in-budget-negotiations http://www.gothamgazette.com/?id=6249:criminal-justice-reform-again-given-little-attention-in-budget-negotiations cuomo prison visit dannemora

Gov. Cuomo in Dannemora (photo via The Governor's Office)


As Gov. Andrew Cuomo and legislative leaders rush to deliver an on-time budget, criminal justice reform advocates aren't holding out hope that any of their major legislative priorities will be included in the final document. Advocates are resigned that many of their priorities, which are backed by Cuomo and included in his executive budget, will be pushed to the post-budget legislative session.

A budget is due by midnight Thursday, with the new fiscal year beginning on Friday, April 1, but a deal must be in place sooner so that bills can be drafted and voted on. The legislative session then extends into June. Cuomo and legislative leaders said Tuesday that they were getting close to settling the major funding and policy differences that would be included in the budget, with no mention of criminal justice issues.

For some advocates it is no surprise given the complexities of their issues, like the push to raise the age of adult criminal responsibility in New York and legislation to amend state law to create a special prosecutor to preside over investigations of police killings of civilians.

To others, it isn't surprising for an entirely different reason: they are used to seeing Cuomo pitch major criminal justice reforms during his State of the State address only to abandon them during budget negotiations due to push back from Senate Republicans.

"For years we've seen this pattern where the governor comes out with big bold ideas in January but he doesn't follow through," said Alyssa Aguilera, co-executive director of VOCAL-NY, a community organizing and reform group. "We know the governor is very powerful and can move things when he wants to. He should be acting on these issues that really impact the low-income communities of color who are really his base."

The Cuomo administration did not return request for comment.

Legislators who support criminal justice reforms say they've been focused on the budget and won't likely return to other legislative issues until next week.

Aguilera noted that Cuomo has previously pitched decriminalizing small amounts of marijuana only to abandon the issue. Last year Cuomo dropped "Raise the Age" and legislation to create a special prosecutor to investigate police killings of civilians during budget negotiations. He has also previously abandoned a push to provide inmates with a college education.

However, last year while facing pressure to act from family members of the deceased, advocates, and legislators, Cuomo issued an executive order giving Attorney General Eric Schneiderman the ability to investigate police killings of civilians under certain circumstances. The order allows the Attorney General to investigate any case involving a police killing of a civilian and to take over a case from a local District Attorney.

The bill Cuomo is backing this year would allow an independent monitor to look into cases if a grand jury decided to not move forward against an officer or if a District Attorney did not put the case before a grand jury in a "reasonable" time. The monitor could then make a recommendation to the Governor. The Attorney General would no longer have a role.

Advocates see the proposal, which is not garnering momentum, as a substantial weakening of Cuomo's executive order. Aguilera said she is concerned the current environment might not be ideal for getting the special prosecutor bill her group supports. "Our biggest fear really is seeing a rolling back of our victory. We fought for the executive order which was a very good, solid executive order. We are realistic that the current leadership in the state Senate means it might not be the right time for a stronger bill. We need to protect the current executive order. We don't want to see a watering down of what we already have," she said.

Supporters of the plan to raise the age of criminal responsibility in New York are more optimistic about their chances. New York is currently one of just two states, with North Carolina, to try 16- and 17-year-olds as adults.

"I think it's going to be a priority for the governor once other priorities are taken care of," said Paige Pierce, CEO of Families Together New York State. "We aren't surprised or unhappy it is being dealt with outside of the budget. We want the attention paid to it that it deserves."

The issue of how to treat 16- and 17-year-olds in the state's criminal justice system is complicated. Senate Republicans don't want to be soft on crime, or give the appearance of being so, while Assembly Democrats want to provide a host of alternatives to criminal court.

Lawmakers and advocates say that last year they came close to compromise legislation. "We got so close last session, we just ran out of time," said Stephanie Gendell, associate executive director for policy and government relations at Citizen's Committee for Children of New York.

Gendell said that legislators from both sides of the aisle were motivated to deliver on legislation when they heard details of how 16- and 17-year-olds were treated. "Certain pieces of Raise the Age just aren't controversial to anyone. That's why we got so close," said Gendell. "Legislators were surprised to hear that a 16-year-old arrested can be held all night without parental notification, without anyone knowing. The more people learn the more they are motivated to act."

Cuomo did push last year to leave funding in the budget to enact Raise the Age reforms were a deal reached, and that money was there, but no deal occurred. The governor included similar language in this year's executive budget. Advocates are anxious to see if the language makes the final budget bills, setting the stage for an agreement in the months ahead. Cuomo also has bail reform on his agenda for the legislative session ahead.

The governor, Democratic Assembly Speaker Carl Heastie, and Republican Senate Majority Leader John Flanagan continue to negotiate the budget framework.

With no legislative deal reached last year Cuomo took executive action, placing all 16- and 17-year-old inmates in an alternative facility. He followed up by pushing the issue again in this year's State of the State address. The Assembly put forward its own version of the bill in its one-house budget. Senate Republicans have indicated some interest in compromising on reform legislation.

"Part of why this doesn't get passed in the budget is that it is a very comprehensive piece of legislation," said Gendell. "Out bill is very long and there is a lot to it. When we get to legislative session we can talk more about the details. Senator Flanagan said he didn't want to deal with Raise the Age in the budget, he didn't say he didn't want it to happen at all."

[Related: Cuomo's Executive Action on Raise the Age Prompts Questions]

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

Read more by this writer.

]]>
Criminal Justice Reform Again Given Little Attention in Budget Negotiations Tue, 29 Mar 2016 05:00:00 +0000
Shut Down the Criminal Court http://www.gothamgazette.com/?id=6190:shut-down-the-criminal-court http://www.gothamgazette.com/?id=6190:shut-down-the-criminal-court courtroom


City Council Speaker Melissa Mark-Viverito should be commended for using her State of the City address, titled "More Justice," to call for criminal justice reform. She rightly observes that "we need more justice in the justice system" and ticked off some specific goals, including reducing the population at Rikers Island, creating civil procedures for minor violations, and improving the warrant process. However, the speaker must aim higher if she truly wants "more justice." More specifically, just as she referred to the "dream" of shutting down Rikers Island, so too should she call for abolishing the present Criminal Court.

While the tactics of the NYPD have been subject to vigorous debate, and the horrific conditions at Rikers Island have been increasingly exposed, the Criminal Court, the entity that reviews arrests and metes out sentences, has been free from any serious scrutiny.

Last year, about 350,000 people were arraigned in the city's Criminal Courts. More than 90% of the defendants were black or Latino. Only 14% of the cases were felonies and owing to Police Commissioner Bill Bratton's devotion to "broken windows" policing, misdemeanors and violations accounted for a whopping 81%. Almost 60% of those cases ended at arraignment, the accused's first appearance before a judge - a moment in time when the prosecutor, defense attorney, and judge don't know much of anything about the charges, the accused, the arresting officer, or any actual victim. This is not anyone's conception of a "court."

The speaker's call for "more" justice assumes there is already some amount present. It is hard to imagine the word "justice" occurring to anyone observing the court in action. Instead, it is as it has always been – an assembly line concerned primarily, if not exclusively, with rushing through cases. It is no secret that court administrators regularly evaluate judges on the speed with which they move their calendars and the number of guilty pleas they obtain in the process.

Most people assume that the Criminal Court adjudicates guilt or innocence with witnesses testifying under oath, an attentive jury, and a judge at the helm. In fact, there are virtually no jury trials in the Criminal Court as defendants are pressured in myriad ways to plead guilty or resolve their cases in any way other than a trial.

Consider this – the average time citywide from arraignment until the start of jury trial is 570 days. In the Bronx it is 826 days. Who can languish in jail or repeatedly come back to court for that long a period of time without experiencing emotional strain, missed work, missed school, etc.?

More deliberately pernicious is the time-honored "trial tax" – defendants are aware that they will get severely sentenced if convicted for having the temerity to exercise their constitutional right to a trial by jury. The result? In 2014, there were only 175 jury trials in the entire New York City Criminal Court (about 1/20 of 1% of the cases that entered the court the same year). On the other hand, there were about 175,000 guilty pleas.

Most people assume that the Criminal Court adjudicates the constitutionality of the arrest, as even non-lawyers are familiar with the prohibition against illegal search and seizure. However, pretrial suppression hearings, where officers testify under oath and judges determine whether they acted legally, are as rare as jury trials. It took a trial in federal court for a judge to find that the NYPD was engaging in hundreds of thousands of violations of the Fourth Amendment and the Equal Protection Clause. If the Criminal Court focused on its role as protector of constitutional rights and less on its self-imposed mandate to speed through cases, the stop-and-frisk debacle might have been stopped in its tracks years earlier.

What, then, does the Criminal Court actually do? Twenty-five years ago, a colleague examined Criminal Court data and argued that the court didn't do anything of substance. He found that the court failed to assure that persons accused of crime are accorded their rights under law, failed to seriously assess guilt or innocence, failed to mete out any kind of meaningful sentence to those ultimately convicted, and cost the taxpayer a huge sum of money. He pointed to the lack of adversarial litigation and concluded that the Court's essential function was taking guilty pleas to minor charges. As a result, he suggested it should be abolished.

I disagreed then, and still do now, with his finding that the Criminal Court didn't do much of anything significant. The Criminal Court does many things. Daily, it processes a multitude of young men of color, saddles them with arrest or criminal records, and renders them less employable, less likely to get into college, less able to get loans, less able to get licenses, etc. That reality breeds frustration, pain, anger, and alienation.

The Criminal Court brings in revenue. Ferguson, Missouri is not the only city that grows its coffers through its criminal justice system. In 2014, fines, surcharges, bail and related fees netted $31,884,569 - that's just under $32 million.

Ultimately, the Criminal Court is a highly efficient instrument of social control that maintains the status quo (or, as our Mayor might say, it perpetuates a tale of two cities).

Yet, while I reject my colleague's conclusion, I agree wholeheartedly with his ultimate recommendation -- the Criminal Court should be abolished. This goal is not so far-fetched. Consider that while advocates for prison abolition were initially seen as wild-eyed dreamers, we now hear that Speaker Mark-Viverito's "dream" of shutting down Rikers Island even has the support of New York Governor Andrew Cuomo.

Mayor Bill de Blasio conceded that the Criminal Court needed to be re-examined several months ago when he announced his "Justice Reboot" initiative. However, meaningful change requires more than shutting down and restarting or tinkering with the same basic program. The usual slate of reforms offered to improve the Criminal Court – generally centered around the supposed need for swifter dispositions – will accomplish little. A reduced backlog won't change the color of the defendants nor the continued meting out of unnecessary and undeserved criminal records.

Speaker Mark-Viverito recognizes the dysfunction that characterizes the Criminal Court. She is creating a commission, headed by New York's former Chief Judge Jonathan Lippman, charged with re-imagining "our entire criminal justice system."

To his credit, Judge Lippman has already promised to "pull no punches." That is exactly the right approach. The Criminal Court hasn't been fundamentally changed since its inception in 1962 and has repeatedly been referred to as a system in crisis. It is well past time for a new approach that focuses on assessing the nature and quality of justice delivered instead of the quantity and alacrity of cases disposed. Isn't that the true measure of a "court?"

***
Steven Zeidman is a professor of law at CUNY School of Law.

***
Have an op-ed idea or submission for Gotham Gazette? Email opinion@gothamgazette.com

]]>
Shut Down the Criminal Court Wed, 24 Feb 2016 21:23:54 +0000