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Gotham Gazette

The Place for New York Policy and politics

Citizens Union

Public Safety

Alarms for the Police


Photograph (cc) 2006 Mo Riza

New York City touts itself as being the safest big city in America, and murders in the first nine months of this year declined by 18 percent from their level in 2006. Various commentators credit the police department with having prevented another terrorist attack in the city. A recent poll found 64 percent of New Yorkers approve of the job Ray Kelly is doing as police commissioner. And the furor over police conduct in black communities, which erupted after the fatal police shooting of Sean Bell last November, largely has faded from the front pages.

Despite all the good news, though, the city's police face a number of challenges. Amid all the praise for Kelly, many black and Latino New Yorkers -- particularly young people -- see themselves singled out by officers and subjected to outright abuse. Complaints against officers a have reached record levels while the Bloomberg administration dismisses much of the criticism -- both of the department itself and of the independent agency, the Civilian Complaint Review Board, charged with policing the police.

In many neighborhoods confrontations with the police are a daily fact of life, but in others, demonstrations provide the spark for disputes between police and civilians. While the police cracked down on protests during the Giuliani administration, the policy gained force and it seems a greater degree of public acceptance after the September 11 attacks as the administration sought to equate policing demonstrations with preventing terrorism. It could not, though, fend off all the legal challenges, particularly over the arrests at the 2004 Republican convention. So far, in court, the police have tended to be on the losing side.

Against this backdrop, the department has found it increasingly difficult to attract new recruits. The latest round of contract negotiations between the city and the Patrolmen's Benevolent Association ended with an arbitration panel ruling that rookie cops would only make about $25,000 a year, about half what their counterparts take home in Los Angeles.

Mayor Michael Bloomberg and Kelly have highlighted the starting pay as a major problem but the union has chosen to focus on the wages for experienced officers. NYPD officers, the union says, make far less than their seasoned counterparts in the suburbs, a fact the Patrolmen's Benevolent Association blames for 4,500 departures from police ranks in the last five years. The recruitment difficulties and the departures have left the department about 2,800 officers short of its projected level, According to one estimate.

This week, Gotham Gazette examines several of the issues confronting the New York City Police Department:

Policing the Police
The number of complaints against the police has increased rapidly in recent years, and critics charge the department and the civilian agency charged with monitoring it do not do enough to stop the abuses.

The Failure of Civilian Oversight
The former executive director of the Civilian Complaint Review Board argues that the agency has been co-opted by the police department and is not serving as the strong and independent agency New Yorkers need.

Stop and Frisk
Police stopped and searched more than half a million New Yorkers in 2006, making the procedure as common in some communities as brushing one's teeth.

Up Against the Constitution
The police department considers its handling of protests at the 2004 Republican convention a major success, but the courts do not seem to agree.

A Police Shortage
A police presence prevents crime, writes the head of the City Council Public Safety Committee, which makes the shrinking of the New York City Police Department particularly distressing.

Previous Articles

New York's 'Ring of Steel'
The police department says a plan for high-tech security downtown is simple common sense, but critics see it as a waste of money and an invasion of privacy.

Police in the Schools
Schools have metal detectors, safety agents and even police officers. What effect does this have on what goes on in classrooms and hallways?

Auxiliary Police
In the wake of the shooting death of two of its officers, great changes may be underway in the way New York City's 4,500-member volunteer police force is trained, deployed, supervised...and protected.

50 Bullets, Many Issues
The shooting of Sean Bell on his wedding echoes other shooting of unarmed black men by police. A look at the reactions, the issues raised and what some say should be done to prevent similar tragedies.

 

A Modern Slavery


A Poster from VietAct

It took 12 years for Martina Okeke to break free. After moving from Nigeria to New York in 1988, she cooked, cleaned and took care of a Staten Island couple's children on the promise of a $300 monthly wage and tuition help for her kids back home. She never received a penny.

Friends from Okeke's church finally convinced her to leave the family, but she refused to report them to the authorities. "I did not want to have a bad name," she told a reporter from the New York Times.

In June 2001, two Indonesian women, who paid $3,000 each for a falsified visa, airline tickets from Jakarta and the promise of a well-paying restaurant job in New York, escaped from a Brooklyn brothel. They had arrived in New York only to find that their "debt" had increased to $30,000. The men waiting for them at the airport also threatened to kill them if they refused to work as prostitutes, according to the Brooklyn Rail.

Human trafficking for labor or sex would seem to be something from another century — or at least another place. Stories like these, however, make clear that the practice exists in modern-day New York. Galvanized by such shocking anecdotes, an unlikely coalition of Bush administration officials, Christian conservatives and liberal activists have focused attention and money on human trafficking, passing landmark federal legislation and committing over $150 million to find and help domestic trafficking victims.

This June, New York joined the effort, becoming one of 29 states to pass state-specific human trafficking legislation. The law, designed to address some of the perceived gaps and shortcomings of the federal law, gives local law enforcement agencies new tools to prosecute traffickers and new services for victims. Scheduled to take effect on November 1, it was immediately hailed by a broad group of supporters, including victim and immigrant rights organizations as well as the editorial board of the New York Times.

Having set the legislative framework for anti-trafficking legislation, New York turns to the difficult task of implementation. Fighting trafficking is difficult, and the problem is complicated by the fact that no one can even agree on how many victims are currently in the United States.

The Scope of the Problem

By its very nature, human trafficking is a shadowy enterprise. Traffickers commonly say they will harm victims or their families if they attempt to leave. Language barriers and a suspicion of government rooted in their home countries often prevent victims from going to law enforcement or others who might help them. Traffickers may confiscate passports or warn victims that they will be deported if they approach authorities, according to Juhu Thikral, a lawyer who leads the Urban Justice Center's Sex Workers Project.

At the same time, the media, government officials and some advocates appear to inflate the number of people affected by human trafficking. For example, Congress enacted the Trafficking Victims Protections Act in 2000 on the basis of a State Department report that put the number of foreign-born victims entering the United States at 50,000 a year. According to a recent article in the Washington Post, the estimate was reached by a CIA analyst who relied on overseas news clippings. After the Government Accountability Office issued a report criticizing the methodology, a new estimate was created, essentially by using a more sophisticated version of the same methodology. A later calculation cut the figure by two thirds, resulting in an estimate of between 14,500 and 17,500 foreign-born trafficked victims per year. In 2006 former attorney general Alberto Gonzales told Congress that even that might have been overstated.

Determining the number of trafficked victims in New York presents even more problems. With its international airports and ethnic neighborhoods, New York is believed to be a major hub in the trafficking business, but no reliable data exists on the nature or extent of the problem.

A final complicating factor relates to how trafficking is defined. Under New York law, a trafficking victim does not have to be foreign-born. The definition includes anyone who is forced into sex work or other types of work, such as domestic labor. That means, for example, that a young woman born and brought up in New York City who is recruited as a sex worker under false pretenses can be counted as a victim of sex trafficking. The New York State Office of Children and Family Services estimates that over 2,500 children are forced into sex work every year in New York.

Perhaps wary of these problems, advocates and government officials would not offer an estimate of the total number of trafficking victims working in New York City. They all couched their answer in terms of broad ranges and were careful to note the unreliability of “official” totals. Whatever the numbers, though, experts believe that only a small number of human trafficking victims ever come to the attention of victim support agencies. For example, Crystal Deboise, the coordinator of Human Trafficking Programs at the New York Association of New Americans estimates only between 100 and 150 human trafficking victims are currently being served by the main victim support organizations in New York City, including the Association of New Americans and Safe Horizon.

Service for Victims

Whatever the numbers of victims, most need help. To encourage more victims to come forward and seek assistance, the New York State law seeks to fill gaps in victim services authorized by federal law.

Under the federal trafficking prevention, passed by Congress in 2000, victims can receive services if they are certified as victims by the Department of Health and Human Services. They are also eligible for so-called T-Visas, which allow foreign-born victims to stay in the United States while they help law enforcement agencies prosecute the case. Advocates say, though, that the benefits offered by federal law are often slow in coming. It can take 18 months for the federal government to issue a T-Visa. According to humantrafficking.org, in the first six years since their creation, only 500 T-Visas were issued.

To address this, the New York law will make “pre-certification” assistance available to victims. It authorizes the state’s Office of Temporary and Disability Assistance to enter into contracts with social service agencies to provide services immediately to victims who come forward. The goal is help address what Deboise calls the “first week problem”: meeting the immediate needs of trafficking victims for food and shelter. “People don’t (always) know they’re a victim of trafficking,” said Deboise. “They want to know, ‘am I allowed to leave?’ We’ll send a cab to pick them up, do a quick assessment and try to find them a place to sleep for the night.”

Even under the new law, victims, especially illegal immigrants, face a difficult choice: co-operate or face deportation. “We make it clear to people that if they’re over 18, in order to pursue services or legal status, they have to cooperate with law enforcement” said Thikral of the Urban Justice. For many individuals, that can be a difficult choice: Despite being beaten by her boss at a Suffolk County brothel, one Long Island immigrant who initially agreed to cooperate with police recanted, according to the New York Times. Now in federal custody, she is awaiting deportation.

Cracking Down on Traffickers

A second goal of the New York law is to crack down on the practice of trafficking itself. Three new felonies have been added to state law, including laws that specifically target the methods used in sex and labor trafficking, such as withholding passports and threatening deportation. A third felony targets New York businesses that knowingly promote “sex tourism” in other countries. Finally, a number of misdemeanor crimes were also added to the New York law, including increased penalties for patronizing a prostitute (the so-called “Johns” law).

Advocates hail most of these changes. “This is a strong definition of trafficking,” said Thikral. Under the law, prosecutors can now target specific techniques used by traffickers rather having to pursue trafficking cases on rape and kidnapping charges, which may be harder to prove.

The advocates do have some concerns however. Because the law makes sex trafficking a higher-level felony (punishable by up to 25 years in jail) than labor trafficking (up to 7 years), some fear labor trafficking will not be taken as seriously. Thikral disagreed with the legislature’s decision to increase the penalties for Johns because she worries it might keep the Johns from bringing trafficking cases to the attention of law enforcement.

Enforcing the Law

Whatever their qualms about specific aspects of the law, most experts believe the most important change is that it will encourage local law enforcement to be more aggressive in prosecuting trafficking. “If you don’t have state penalties, you have to go outside the state system,” said Mary B. Kavaney, the deputy commissioner of the New York State Division of Criminal Justice Services, said. “With three new felonies, you can bring [trafficking] to the forefront” of law enforcement efforts in New York.

This could result in increased prosecution of relatively small-scale traffickers. Federal law enforcement agencies tend to be more interested in cases with major traffickers and large numbers of victims. Under the new state law, local police can help pick up the slack by pursuing cases that involve a smaller number of victims.

For Kenneth Franzblau, the director of human trafficking at the New York State Office of Criminal Justice Services, the key to successful implementation of the new law is training: getting police officers to adopt a different perspective when they confront a potential trafficking situation. He cites the examples of raiding a brothel or investigating a domestic dispute between a nanny and her employer. In those examples, he would encourage the police to ask questions about the living situation of the people they find, whether they are free to leave or if they were forced to surrender passports or other identification to their employer.

Still, breaking up trafficking rings is difficult at any level of law enforcement. According to the Washington Post, 148 federal cases have been brought nationwide since 2000, despite the creation of 42 Justice Department task forces designed to bring representatives of law enforcement and social service agencies together.

While experts dispute the number, no one doubts that there are traffickers in the New York area. But more than a year after a Long Island Anti-Human Trafficking Task Force was organized, not one trafficker operating on Long Island has been arrested, and just one victim, a Chinese woman forced to work in a Wantagh brothel that was disguised as a massage parlor, has been freed from traffickers, according to a May 2006 New York Times report. Convincing the woman to cooperate was a painstaking process -- she had been arrested twice in four months, but it took the intervention of a prosecutor and a police detective to convince her that she wouldn’t be deported. Notwithstanding her testimony, the owner of the brothel has yet to be arrested, in large part because the police still need testimony.

After New York’s law takes effect on November 1, the Interagency Task Force on Human Trafficking will have the most responsibility for its implementation. Composed of multiple state agencies, the task force will coordinate training efforts for law enforcement agencies and evaluate the state’s progress in targeting trafficking efforts. It will tackle the issue of data collection in hopes of getting a more reliable handle on the problem. (The Vera Institute for Justice is also embarking on a similar research effort with funding from the federal government, using New York City as a test case.)

This is not a purely academic question. Officials at the state Division of Criminal Justice Services say it is key to their mission. “No one knows the numbers,” Kavaney said. “If we knew the numbers of victims, the ethnicity of victims and perpetrators and the types of businesses being used (by traffickers) as cover, we’d go a long way.”

Aubrey Fox is project director of Bronx Community Solutions, aimed at changing the Bronx court system’s approach to low-level crime.

 

 

New York's 'Ring of Steel'


In the almost six years since terrorists flew planes into the World Trade Center, much has changed for New Yorkers. They have learned to always carry a photo ID, to be sure to take their keys out of their pockets when going through metal detectors and to react calmly to being frisked at a Mets game. But will they accept being subjected to routine surveillance as they go about their business on the streets of lower Manhattan?

The New York City Police Department will soon launch a new counter-terrorism surveillance program named the "Lower Manhattan Security Initiative." It will include some 3,000 cameras – both public and private – below Canal Street to monitor people and cars moving through Lower Manhattan, along with license plate readers, a command center and movable roadblocks. The program is generally seen as having been modeled on London’s so-called ring of steel, a security and surveillance system that keeps many eyes on London’s financial district and historic sites. Some counts estimate that with this system the average London resident is photographed 300 times a day

The planned system for New York City represents a "commonsense approach to protecting what is arguably one of the most sensitive 1.7 square miles on the planet," Police Commissioner Raymond Kelly said on the News Hour earlier this summer. "It’s a wise use of public funds in protecting certainly a tremendous revenue generator for the city and for the country."

The cordon of cameras and other technology has, however, attracted opposition from critics on both sides of the political spectrum who variously attack it for threatening privacy rights, being ineffective and costing too much money.

Preventing a Terrorist Attack

The Lower Manhattan Security Initiative is certainly sweeping. Although surveillance programs have been used in other cities such as Washington to help prevent security threats, New York’s new initiative is a significantly larger undertaking than any other previously attempted, or perhaps even envisioned, in the United States, according to Tim Connors, director of the Manhattan Institute’s Center for Policing Terrorism.

The thousands of cameras represent a dramatic increase from the 250 cameras already in use for crime prevention. It also represents a major change in technology. The existing cameras can capture moving images, but to be reviewed and analyzed the data first needs to be downloaded. With the new system, images from the cameras would go directly to a surveillance center. The system would include methods to quickly block roads and restrict traffic. The new cameras would have the capability to transmit data in real time to agencies in Washington including the Department of Homeland Security and the Federal Bureau of Investigation.

The program seems ambitious even for a city that has expended so much money and effort to avert another terrorist attack since September 11, 2001. As of last year, New York was reportedly spending some $200 million a year on counterterrorism efforts. Every day more than 1,000 police officers focus on that task – from collecting intelligence to watching cars and trucks entering the Lincoln Tunnel. Experts agree that the city – not the federal government – has put together the most extensive urban counterterrorism operation in the world. Much of that, Kelly said, focuses on prevention – trying to keep terrorists from coming together and even thinking about an attack let alone actually staging one.

This security initiative takes a different approach. For one, it relies on technology more than human intelligence.

So does this high technology initiative indicate a shift in policy? According to Connors, nothing he has heard so far indicates that it does. "Part of the overall strategy here is to complement—as opposed to eliminate—the city’s present reliance upon a large, well-funded police force and, particularly important, one that has received state-of-the-art training in counter-terrorism," he said.

The police use a number of tactics to fight terror, and the surveillance initiative, Connors said, represents a new resource in the city’s tool belt for protecting itself. It is definitely not "an either-or proposition in play here," he said.

Privacy versus Protection

By the end of next year, thousands of security cameras will be recording, unfiltered, in real time and without a warrant or the need to demonstrate probable cause, millions of ordinary New Yorkers going about their lives in one of the busiest areas in the world. Civil liberties groups are, not surprisingly, concerned about what they fear is the erosion of privacy rights of U.S. citizens. "[This] plan is a major step towards blanket police monitoring of law-abiding New Yorkers, and it could lead us down a path toward a total surveillance society, " the New York Civil Liberties Union said in a statement on July 9.

The system would not seem to violate any laws. Supporters of the surveillance, including Kelly, argue no one has a right to privacy on a public street. "It’s long been settled in the law that there is no expectation of privacy in the public place," Kelly has said. "It’s simply not a legal issue. It’s not a violation of the Constitution. It’s not a violation of statute."

Skeptics raise a number of concerns:

Racial profiling: The first challenge, according to P.J. Crowley, director of homeland security at the Center for American Progress is the difficulty in determining what constitutes "suspicious" activity. The answer, he believes, is truly in the "eye of the beholder." Already, he notes, people have been detained for taking pictures of bridges or landmarks. It is not unreasonable to think that an amateur photographer who looks Middle Eastern would be subject to more intense scrutiny – and to having his photo sent on to Washington – than a person with Northern European features.

Compiling personal information: It is likely and foreseeable, said Jim Harper, director of information planning studies at the Cato Institute, that the information gathered through the security initiative could be used to develop a database that will include "profiles" on the schedules and movements of civilians—personal information that an individual would normally regard as being private. This might alarm some New Yorkers. "When law abiding citizens go out in public and move around," he explains, "they don’t expect people to use new high-tech surveillance technology in order to track us and monitor us, extracting untold information in the process."

Kelly has said that the police have no interest in holding on to extraneous information.

Invasions of Privacy: For the cameras to be effective, someone has to review the images and that human intervention can create its own difficulties. In a television interview, George Washington University law professor Jeffrey Rosen recalled sitting in a camera control room one night. When boredom set in after midnight, the workers focused not on miscreants but on attractive women and people making out in the park. During the 2004 Republican convention in New York, Rosen recalled, "surveillance cameras on airplanes took pictures of a couple making love on a roof garden, followed them, watched this whole thing and then actually trailed the woman as she left."

Unrelated Uses: Interestingly enough the cameras will be installed in Manhattan as Mayor Michael Bloomberg seeks cameras and other technology for another program – his plan to charge cars and trucks to be in parts of Manhattan during the workweek. In London, surveillance cameras enforce that city’s congestion pricing plan, according to Rosen. "There’s really a form of mission creep, and cameras that are accepted for one purpose are used for another," he said.

According to Kelly, the administration has no plans to use the cameras ringing lower Manhattan for "revenue generation." And he has noted that planning for the surveillance program began long before the city embarked on its congestion pricing proposal.

Even many who themselves have reservations about the security initiative concede that many New Yorkers are willing to accept cameras if they think surveillance will make the city safer. "Most people like cameras," Rosen said. Photos from England, showing suspects in July’s attempted bombings in London and Glasgow and their role in the capture of suspects in the July 2005 bombings of the transit system have bolstered their appeal.

That said, Crowley believes there are steps the city can take to balance citizens’ civil liberties with the need to protect millions of lives. The first, he said, is for the administration to communicate with civil liberties groups who can help ensure that law enforcement and intelligence agencies are doing what is necessary from a security standpoint without stepping over the line and infringing on the legitimate privacy rights of average citizens.

The second step, he said, is developing a robust public review process. Several different agencies are already involved in overseeing issues associated with security and privacy in other cities. "If New York is indeed going to move in this direction," Crowley argued, "they have to make sure there is adequate oversight, and offer an opportunity for those who believe they have been unfairly targeted as a result of this [to] challenge the way the surveillance is being implemented."

Cost

Estimates are that the initiative could cost $90 million. Of that, Kelly said, the police department has received $25 million—a significant down payment. Out of this, $15 million was allocated by grants from the Department of Homeland Security; the other $10 million came from the city’s budget. The funding for it this year represents something of a turnaround. In 2006, the plan seemed largely doomed as the federal government cut homeland security funds for New York City. This year, though, Washington increased its allocation of anti-terror funding for New York.

The price tag for the 3,000 surveillance cameras alone could reach about $8 million to implement in the first year. The police department press office declined to provide further details on cost estimates. According to Connors, Bloomberg has indicated that he will do whatever is necessary to secure the city, without being influenced by budgetary constraints.

Effectiveness

Even if the city has the money, is the Lower Manhattan Security Initiative the best use of it? While the city’s strategy in the last six years has focused on preventing terrorist attacks in their earliest stages, the "ring of steel" technology would be most useful in the event of a failed terrorist plot, such as this summer’s thwarted car bombings in London, Harper said. Thousands of surveillance cameras could provide police with unedited video of the individuals involved and a precise timeline of how the event unfolded. The material recorded on camera has the potential to be an unparalleled resource for the city to learn what mistakes both sides made and help the city better prevent a future attack.

"Cameras are good at figuring out, after the fact, what happened," Harper said. "Their limitation is that they provide law enforcement with essentially no capability to actually stop an attack before it happens."

Kelly believes the security system can act as a deterrent. "It is not a panacea," he said, "but it is a valuable additional layer to put in place."

By its very nature, of course, the Lower Manhattan Security Initiative focuses on Lower Manhattan. Other parts of the city also represent obvious targets for a future terrorist attack. Midtown, for example, is home to the United Nations, Grand Central and Penn Station, the Empire State Building as well as the headquarters of many financial service firms.

Connors thinks the decision to focus on Lower Manhattan boiled down intelligence estimates of the area’s threat level. He notes that al Qaeda and other affiliated terror groups have broadcast to America that its most coveted target for a large-scale attack remains Lower Manhattan. And, of course, it has already attacked that area twice.

Crowley similarly believes that the decision to focus on Lower Manhattan, as opposed to the entire city, makes sense. He argues that it is Lower Manhattan that is perceived, rightly or wrongly, as the financial capital of the world. "There are other attractive targets elsewhere, but I cannot dispute making the protection of Lower Manhattan a security priority," he said.

 

When Conviction Records Can Be Sealed


When Andrew Alexander turned 17 on January 3, 2006, the Queens high school senior did not expect that he would be arrested later that day. And he definitely did not expect that his arrest would ultimately bring about a change in New York's procedures for making information about convictions public. But a policy change resulting from Andrew Alexander's birthday arrest, conviction and subsequent lawsuit will affect thousands of defendants in New York City Criminal Court every year.

Alexander was charged with criminal mischief, creating graffiti and possessing graffiti instruments (paint), all misdemeanors. After negotiations, he pled guilty in Queens Criminal Court to disorderly conduct. This was a typical "plea bargain," where a defendant, who has committed a simple misdemeanor and has had little or no prior contact with the criminal justice system, admits guilt and does not go to trial. Alexander’s sentence, a conditional discharge, required him to do community service and avoid being arrested for at least one year.

Disorderly conduct, or "discon," which is used to cover a multitude of acts, is a violation, or an offense, rather than a crime and does not result in a criminal record.

One year later, Alexander applied for a job as a cashier at Sears. The application asked, "Have you been convicted of a crime within the last seven (7) years?"

Alexander answered, "No." He believed that was truthful. When he pled guilty to disorderly conduct, he was advised that the offense was a violation, not a crime, and that he would not have a record of a criminal conviction.

Sears retained USIS, a private screening and background search company, to investigate applicants. As part of its investigation of Alexander, USIS contacted the New York State Office of Court Administration and, providing Alexander's name and date of birth, requested his criminal history, if any.

The next day, for a fee of $52.00, the office emailed USIS "Criminal History Search Results," and disclosed that Alexander had been charged with the three graffiti-related misdemeanors and pled guilty to the violation of disorderly conduct.

Based upon this information, Sears rejected Alexander's job application.

Alexander sued the Office of Court Administration and Jonathan Lippman, who was then chief administrative judge, claiming that his rights had been violated since findings or pleas of guilt to violations are supposed to remain sealed. The lawsuit was brought by Stuart Lichten of the Manhattan firm of Schwartz, Lichten and Bright. The suit was based on criminal procedure law, which provides that, when someone is convicted of disorderly conduct or another violation, no statewide search by the Office of Court Administration of electronic records can be disseminated to the public. A person who is convicted, by plea or trial, of a violation is entitled to have the record sealed and fingerprints and any photographs returned. Disorderly conduct is a "non-printable" charge for which fingerprints are not required.

The state took the position that, while Alexander was entitled to the return of fingerprints and "mug shots," sealing did not apply. The counsel for the Office of Court Administration, Michael Colodner, argued that the sealing does not apply to court records, but only to records of arrest and prosecution in the files of the Division of Criminal Justice, police agencies and prosecutors' offices. He further argued that paper (i.e. non-electronic) records kept in the courts also did not have to be sealed.

The dispute arose at least partly because the original charges against Alexander were misdemeanors. As a result, the records of the violation also went along into the state system. But according to Lichten, the release of the information violated his client's rights to sealing. That is, the search made available to USIS should not have included anything about the violation; any reference should have been deleted.

Under the Criminal Procedure Law that governs the confidentiality of records, where the criminal action ends in a violation conviction, the Office of Court Administration is not permitted to disseminate to the public, statewide records kept electronically. A person who is convicted is entitled to have that statewide record kept confidential. However, the actual paper records kept in New York City Criminal Court are not sealed, and the public does have access to the physical record in the clerk's office. The intended balance is that there is a public record in the office of the Clerk of the Criminal Court, but not in the statewide database made available to investigators for a fee.

As a result of the suit, the Office of Court Administration agreed to change its policy on disseminating information. If that agreement -- which is not formally written -- is violated, the lawsuit can be reopened. Justice Joan A. Madden of New York State Supreme Court issued an order discontinuing the lawsuit "based on the office’s agreement to change its policy."

A separate lawsuit brought against Sears has also been settled, but due to a confidentiality agreement the terms are not known.

Emily Jane Goodman is a New York State Supreme Court Justice 

Police in Schools


Police at Curtis High School on Staten Island

For students who attend one of New York City's 86 public schools with permanent metal detectors, simply getting through the door can pose one of the day's biggest challenges. The metal detectors are just the beginning. In its increased efforts to make its schools safe, the Department of Education also uses bag checks, hand-held wands, ID scanners and the watchful eyes of school safety agents, uniformed civilian members of the New York City Police Department.

Since a series of well publicized crimes in schools in 2003, the Bloomberg administration has ratcheted up security in middle schools and high school across the city. While statistics say the programs have reduced violence, and some student reports feeling safer, critics charge that the presence of security devices and uniformed guards unfairly stigmatizes many of the city's more than 1 million public school students.

METAL DETECTORS, AGENTS AND POLICE

Conflicts and Resolutions

Police in the Schools:
A uniformed presence has made schools safer -- but at what cost?

Hanging Out and Hurting Business:
Teens on the street scare away customers.

Breaking the Cycle of Violence:
A program in East New York tries to stop the mayhem by helping young people respect themselves.

Taking A.C.T.I.O.N. at The Point:
In Hunts Point, young people do not just complain about problems in their community, they try to solve them.

Cutbacks After School:
Reductions in government funds will force shutdowns of programs that keep young people active and occupied.

The Bloomberg administration has shown that it will pull no punches when it comes to school safety in New York City's 1,200 public high schools. In 2004, the mayor launched his Impact Schools Initiative, which greatly increased the police presence in schools. Since then, good news and rosy numbers have flowed out of City Hall.

"We launched the Impact School initiative in order to put a stop to the culture of crime and disorder that was ruining the educational opportunities for our students, and the results have been promising," said Bloomberg in a 2005 press conference. The following year, Bloomberg reported violent crime in New York schools was down 11 percent from the previous year, and according to the city's numbers, the rate has continued to fall -- except for a rise in the number of thefts of electronic items, like pricey laptop computers, it would seem that the mayor's plan is working.

While everyone wants safe schools, some see the security as having a cost. Many students, teachers and others are deeply troubled by the increased police presence in the city's schools. Some 4,625 school safety agents patrol the city's approximately 1,100 schools, according to the New York Civil Liberties Union, along with at least 200 New York City police officers, who, unlike the safety agents, carry firearms. More than a fifth of the city's public middle and high schools now have permanent metal detectors, and any public school can receive a surprise visit from the police department's "roving" metal detector program. The Department of Education did not return repeated phone calls to confirm these numbers.

Students, teachers, administrators and civil liberties groups express concerns that some of the tactics used to police the schools are overzealous and even abusive. A report released in March by the New York American Civil Liberties Union entitled, "Criminalizing the Classroom: The Over-policing of New York City's Public Schools," suggests that misconduct by the police and especially safety agents -- from verbal assault to the unjustified arrest of students, teachers and principals -- is not uncommon. In once case a police officer said he arrested a student for a "smart-aleck." The student had been waiting outside the school for his mother, who had agreed to pick up his cell phone for him, since it would otherwise be confiscated.

CHANGING ATTITUDES AT MARTIN LUTHER KING

While students understandably chafe at such treatment, the city clearly has had a school safety problem. At Martin Luther King Jr. High School on Manhattan's Upper West Side, for example, the security measures are more than precautionary. In 2002, two students were shot at King on the civil rights leader's birthday. Five years later, after the restructuring of the King campus into a cluster of smaller high schools and the addition of school safety agents to the already permanent fixture of metal detectors, many students say they feel safe at their school.

The school safety agents on the King campus seem to have developed some semblance of a working relationship with students and faculty. On a warm day in June, the students huddled in small groups on and around school grounds talking among themselves and hanging out. "Keep it moving," one agent says to a group of teenage girls on the street corner outside the school. "You can hang out across the street, but not here."

"They're pretty nice. I don't have any problems with them, really," said Staring Jones, a 15-year-old first-year student.

"Everyone gets treated the same," said Fancellys Alvarado, a first-year student. Fourteen-year-old Veronica Taylor agreed. "There's not a problem here. They're nice," she said of the agents.

CREATING A CULTURE OF RESPECT

The kind of working relationship between school safety and the students and faculty found at King, however, is not a given, but a constant work in progress. Jamaal Bowman, dean of Martin Luther King, Jr. High School of the Arts and Technology on the King campus, said he personally watches all his students enter school every morning to make sure everything goes smoothly and no students are mistreated by safety agents. Bowman said that outrageous behavior by school safety teams is rare at schools where the administration is vigilant about protecting its students' civil liberties as well as their safety.

"We have a different sergeant this year," said Bowman, referring to the NYPD sergeants that are in charge of school safety agents at every school. Last year, he said, the sergeant insulted students, using sexual and racial epitaphs, and, according to Bowman, "even got into a couple of fights with students," he said. "This year [the agents are] more nurturing than in past years. They'll let us deal with infractions because we know [the kids] and their families."

UNEQUAL TREATMENT?

Some King students, particularly black male students, still have problems with the agents. One, 17-year-old Aaron Flournoy, said the agents have an attitude. "They curse, they yell. And they get violent for no reason," he said as a uniformed agent walked outside the high school and encouraged students to "get going" and move away from the school grounds.

Despite the police presence, Deron Gates, also 17, said he does not feel safe at the school. "It's MLK for God's sake," said Gates. "My 10th grade year people got jumped for no reason. If someone wants to hurt you they're going to hurt you," he said.

In general, the civil liberties union and Bowman say, the city's minority students, who comprise two-thirds of all public school children, are more likely than their white or more affluent counterparts to be humiliated and treated like criminals. "I think black males feel disenfranchised already," said Bowman, who starting a support group for black males on the King campus.

Bowman sees discrepancies between the treatment given his students and those at LaGuardia High School, a prestigious public arts high school across the street from King. "Being right next door to LaGuardia, it's like a slap in the face," he said, shaking his head. "When our kids go over there for summer school they put up the metal detectors. It's blatant discrimination. And blatant racism."

LaGuardia has no metal detectors to speak of and, according to John H. Lewis, a teacher there, school safety agents there are not an overbearing presence. "The kids are much more savvy [at LaGuardia]. They have a clear idea of what their rights are," he said. Asia Fisher, a 17-year-old LaGuardia senior from Brooklyn, said that at LaGuardia "security guards can be your friends."

In contrast, at the poorer school in Brooklyn where he used to teach, Lewis said, "The kids were treated like criminals and humiliated. At LaGuardia kids get treated better in every respect. It's sort of like the gloves are on."

David Bloomfield, the president of the Citywide Council on High Schools, said there was a "consensus" among educators speaking at a recent council hearing on school safety that the school safety agents are disrespectful. But he also said it was possible -- and vital - to foster a closer relationship between the agents and school administrators.

STUDENTS, NOT CRIMINALS

Special police officers outside Martin Luther King Jr. High School following a shooting there in 2002

Even courteous careful safety agent and police can pose a problem simply by being in the school building, according to some critics. Udi Ofer, field director for the civil liberties union's legislative council, says the Department of Education relies too much on police to deal with issues that could be handled by school administrators. "This is not just about metal detectors. This is about the extraordinary presence of the NYPD in public schools. New York City now has more school safety agents per student than most cities do per citizen," said Ofer.

"The police department has no business in the schools. They're used to dealing with criminals," said Lewis

When students believe a school safety agent or police officer has treated them unjustly, there is very little they, their parents or their teachers can do to press a complaint. Deputized by the police department, school safety agents are not accountable to the administrators, principals, parents, or communities of the schools they are commissioned to protect.

If there is a mechanism in city government to report misconduct, "the city hasn't made anyone aware of it," said Bowman. He said a city official suggested he call the city's all-purpose 311 non-emergency help line to lodge a complaint. In general, he said, if faculty and parents want a problem to be taken seriously, they should call the civil liberties union.

 

Trying to Break the Cycle of Violence


In April, Henry Talbert <http://www.nypost.com/seven/04172007/news/regionalnews/teen_blown_away_at_bklyn_eatery_regionalnews_eric_lenkowitz_and_perry_chiaramonte.htm>, a 16-year-old junior at Thomas Jefferson High School in East New York and an aspiring firefighter, was murdered. The teen was shot in the neck by another youth after an altercation outside a restaurant at around four in the afternoon.

Talbert’s death was not an isolated event. Residents of East New York and neighboring Brownsville must all too often mourn the death of young people brought down by violence. And this so-called epidemic of violence affects other parts of the city and urban communities throughout the nation. In Chicago, there have been <http://www.chicagotribune.com/news/local/southsouthwest/chi-teenshotjun27,1,2492031.story?coll=chi-newslocalssouthwest-hed>34 students shot since January.

Waddell Parks, parent coordinator at Thomas Jefferson High School, has seen too many senseless deaths and injuries. Outraged by these events, he has joined with other community members and school employees to encourage youths to confront the problem. Parks and the Parent Coordinators Coalition to Stop the Violence are developing a comprehensive program to deter youth violence in Brownsville and East New York. The program, operating in conjunction with community-based organizations, will work within the schools. The group hopes to solve the area’s problems from within, using approaches tailored to the neighborhood and developed by people who live there.

Conflicts and Resolutions

Police in the Schools:
A uniformed presence has made schools safer – but at what cost?

Hanging Out and Hurting Business:
Teens on the street scare away customers.

Breaking the Cycle of Violence:
A program in East New York tries to stop the mayhem by helping young people respect themselves.

Taking A.C.T.I.O.N. at The Point:
In Hunts Point, young people do not just complain about problems in their community, they try to solve them.

Cutbacks After School:
Reductions in government funds will force shutdowns of programs that keep young people active and occupied.

For example, Parks speaks of putting on a hip-hop revival, “returning to the early days of hip-hop, back before it got so commercial.” While the music now is widely viewed as violent, Parks and other say that, before it became so commercial, hip-hop was credited with helping to reduce violence by promoting hip-hop battles where confrontation was expressed in dance, rhyme and artwork – not with bullets. The group also hopes to create programs to encourage youth to look more critically at the way violence is portrayed in entertainment. Peer mediation sessions will offer more options for resolving conflicts peacefully.

In June, local schools participated in a march and rally to “stop the violence and increase the peace.” The event, held by the East New York Urban Youth Corps and the Parent Coordinators Coalition to Stop the Violence, and organized by community advocate Winchester Keyes, drew close to 1,000 young people and community supporters. Through speeches and a show of numbers, the event tried to make violence less acceptable and so decrease its prevalence. For many of the students who attended, the rally was a starting point.

Following the rally, a number of organizations participated in a family information fair, intended to help connect teenagers and their families to resources in the area. Many groups with important missions go largely unnoticed within the community, Parks said, and this was an effort to “bring them out into the open.”

ROOTS OF THE PROBLEM

“Violence overall is a major problem out here…it’s almost become the norm to solve any conflict,” including minor altercations, arguments, even a stare, said Parks sitting amid stacks of research and literature. “The real problem is the disrespect for black life—for black youth.”

Youth show disrespect for each other, he said, and in turn do not get respect from adults in general and the police in particular. According to local residents, the police presence here is staggering; and the complaints abound. In the latest Civilian Complaint Review Board report, the two precincts covering East New York and Brownsville, the 75th and the 73rd respectively, had the highest numbers of complaints about police in the city. Local leaders attribute this partly to the frequency of “stop-and-frisk” searches of local youth. Because of the prevalence of violence, police don’t respect the neighborhood’s young people and make assumptions, often erroneous, about their behavior. Often police stop the youth, mostly black and Latino, on the streets, and frisk and search them without cause.

“Youth, students, they’re intimidated, harassed, of course it creates hostility. They’re being bullied [by police officers]” said Parks. The stop and frisk searches have recently become the target of the New York Civil Liberties Union and will likely be a subject of upcoming litigation.

As things stand now, police do not respect the young people and the young people do not trust or respect the police and, worse, may feel threatened by them. Such an atmosphere of mutual mistrust makes it difficult to confront the very real problems of crime and violence in the area.

Parks hopes that providing youth with positive activities can change that. Instead of waiting for the teenagers to fail, he believes, community members should provide them with opportunities to excel and resources to succeed. When youth start to respect themselves and each other, Parks added, they can then step up and become the leaders their community needs to take it into the future.

 

Protecting New York's Teens


Every New Yorker has seen it happen. A group of teenagers enters a subways car, talking loudly, perhaps cursing or using other epitaphs. Once in the car they expand to fill all space, sprawling across available seats, extending their arms as they hang onto the poles. The other passengers stare at the ground, peer resolutely at their newspapers, trying to avert their eyes from what many see as a threatening presence in their midst.

For decades if not longer, many older New Yorkers have viewed teenagers, particularly those of a different ethic or racial group, as dangerous. The youth gangs of the 1950s, the reports of so-called wilding in the late 1980s and the often-profane shouting of today’s teenagers have reinforced that notion.

For their part, teenagers complain of being harassed by police and others for simply being there. School guards shoo students away from their own schools upon dismissal. Community boards debate how to keep them off the sidewalks (see related story) , and parents of younger children wish the older ones would stay away from playgrounds and even parks. Stores post signs warning students away, particularly during schools hours.

STOP, FRISK AND ARREST

Conflicts and Resolutions

Police in the Schools:
A uniformed presence has made schools safer – but at what cost?

Hanging Out and Hurting Business:
Teens on the street scare away customers.

Breaking the Cycle of Violence:
A program in East New York tries to stop the mayhem by helping young people respect themselves.

Taking A.C.T.I.O.N. at The Point:
In Hunts Point, young people do not just complain about problems in their community, they try to solve them.

Cutbacks After School:
Reductions in government funds will force shutdowns of programs that keep young people active and occupied.

While this tension has long existed, a number of recent incidents have focused attention on it.

--About 30 students on their way to a wake for a murdered teen, a gang leader, police said, were arrested in May in Brooklyn. Police said they feared the gathering would lead to violence and more gang activity, but the young people charged the police acted only because they were young and black or Latino. Later Brooklyn District Attorney Charles Hynes said the young people jumping on cars and being generally rowdy. He has not yet produced any evidence to this effect.

--Police arrested more than 200 people, many but not all young, at this year’s Puerto Rican Day parade. Many said they were picked up simply for wearing yellow and gold, the colors of the Latin Kings gang. Police denied it, saying people were stopped for their conduct, not what they wore.

--Following a string of robberies police last October reportedly stopped any all male black teenagers at the 7th Avenue subway station in Park Slope Brooklyn.

--A 13-yearold middle school student in Dyker Heights, Brooklyn, was handcuffed and arrested, reportedly for writing on her classroom desk.

At the same time, a number of studies and reports have documented the sometimes tense relationship between teens and police. The New York Civil Liberties Union issued a study last spring charging that policies designed make New York City schools safer have "transformed New York City classrooms into hostile and dysfunctional environments that damage students and disempower educators.” (See related story.) In particular, the report found that 93,000 of the city’s approximately 1 million public school students had to go through extreme security – metal detectors, searches and so on -- because they attend schools the Department of Education considers dangerous. Further the report found that, with more than 4,600 school safety agents, “the NYPD's School Safety Division alone constitutes the tenth largest police force in the country.”

Stop and frisk data released by the New York City police department found the police stopped five times as many people in 2006 as in 2002 and that half of those stopped were black – and young black men say they are disproportionately the targets of such searches. The City Council has asked for more information, which it says the police department has not furnished.

A series of columns by Bob Herbert of the New York Times focused on the intense policing of young people in the city in the schools and on the streets.

CRIME CONCERNS

While most teenagers—like most people of any age – are not criminals, police and others have reason to be concerned about illegal acts committed by young people. Crime statistics for the fiscal year ending June 30, 2006, found a rise in crime, including murder, committed by young people in New York City.

Last summer saw a spate of teenage violence across the country leading Sarah Karnasiewicz to write in Salon, “The story of summer 2006 has been one of kids and killing,” although she added that most of the deaths were in middle-sized cities, rather than New York or Los Angeles. But in one large city – Chicago – some 32 students were killed in the school year that ended in June.

People who work with young people, such as Waddell Parks in East New York (see related story), confirm that an increasing number of young people settle any difference, however minor, with a gun. And while gangs are a less serious problem here than in some other cities, they do exist.

Then there are the incidents that, while they may be far less common than they once were, remain chilling: The teenagers who killed a Brooklyn teenager for his iPod or the high school conflict that spilled out into busy Union Square shortly before Christmas, leaving one youngster dead of stab wounds and two other seriously injured.

The current crackdown in schools was instituted in 2004 after a series of well-publicized incidents prompted politicians and the press to condemn the Bloomberg administration for not doing more to keep schools safe. Further, while some teens say police, schools officials and others monitor their activity too closely, statistics show that teen violence may fester because adults do too little. A study conducted in the late 1990s, based on interviews with young, violent offenders in New York City, found that 100 percent of them said adults ignored older youths fighting in the street, 74 percent said they ignored young people selling drugs, and 37 percent ignored property being vandalized.

LOOKING FOR SOLUTIONS

Few people would argue that police have no role in guarding against youth violence or that schools do not need some kind of security. Disagreements, though, arise over when such measures infringe on the rights of teenagers who, of course, are entitled to the constitutional protections of other people living in the United States. In addition many who work with teens say security measures can only do so much. To address the problem in a more fundamental way, they maintain, teenagers need to have more respect for themselves and for others and must to be actively involved in their communities in a constructive way.

This week, Gotham Gazette, examines several aspects of this issue, including the situation in the schools, programs to address the problem – and the funding difficulties afflicting some of those programs.  

The Brave New World of Ticket Sales


"Buying?" "Selling?" "I got box seats," the scalpers furtively muttered as I walked to Yankee Stadium.

It was a beautiful Saturday in the Bronx - perfect for watching the Yankees. The bleacher seat I coveted was sold out both at the box office and online at Ticketmaster, the Yankee's authorized sales outlet, so I found myself nervously approaching scalpers two blocks from the stadium. The process quickly became uncomfortable. One group of scalpers started fighting over who got to approach me first, while another followed me for a block, angrily demanding to know why I didn't want a ticket in another section.

Not long ago, I would have been out of luck. For years, the only option for a fan seeking a sold-out seat was to buy an illegally scalped ticket, risking an unpleasant interaction, a counterfeit ticket or, in the worst-case scenario, arrest. Fortunately, the day before I had logged on to StubHub and purchased a bleacher seat for $8, plus a $15 service charge, from an anonymous seller.

By buying a resold ticket on StubHub, I became part of a booming secondary market for tickets, which grossed close to $3 billion in the United States in 2006. This largely on-line system charges buyers and sellers a commission in exchange for offering a safe and secure way to sell already purchased tickets. And on June 1, Governor Eliot Spitzer endorsed this approach to ticket scalping, signing legislation that removes from the books almost all of the restrictions on the resale of tickets that have existed since the 1920s. In doing so, New York joined other states that have relaxed laws on reselling tickets. "Ticket scalping laws historically have not worked," said Spitzer. "I think permitting a free market to work its magic there is the smart approach."

Supporters of the new open market believe the new law will fundamentally transform the experience of buying and selling tickets to rock concerts, baseball games and theater performances, promising more choice and convenience for consumers. But others, including some consumer advocates, fear this free-for-all will raise ticket prices, putting many events out of the reach of average New Yorkers.

CHANGING THE SYSTEM

Old anti-scalping legislation allowed only licensed agents to resell tickets. And even they faced restrictions. Tickets to events in large arenas such as Yankee Stadium could be sold for no more than 45 percent above face value. For smaller venues, like a Broadway theater, the limit was 20 percent above the original ticket price.

Under the new law, regular fans, small-scale entrepreneurs and large-scale ticket brokers can all sell tickets - and they can charge as much as they want. Scalping in close proximity to concert halls and baseball stadiums, though, remains illegal. That means my unsuccessful attempt to buy a resold ticket near Yankee Stadium was illegal, while my purchase of the ticket online was perfectly legal. Professional ticket brokers must register with the state and pay a fee, but fans planning to sell fewer than six tickets to a single event are free to do so as they please.

The new legislation also helps websites like StubHub by expressly prohibiting the Yankees and other teams from punishing season ticket holders who resell their unused tickets online. Previously, the Yankees had claimed that the resale of tickets by fans violated the contracts signed by season ticket holders. For example, according to the New York Times, the team revoked a season ticket held by Orlando Bautista, a doctor from Smithtown, New York who had sold six tickets to a game through StubHub.

The legislation has to be renewed in two years, giving hope to opponents of the law, such as consumer advocate Russ Haven of the New York Public Interest Group, that anti-scalping legislation will be restored.

PRODUCERS VS. SPECULATORS

The term "scalping" has been around since the 1880s, when it referred to speculators who bought stocks and grains with the intention of selling them for profit, as well as to agents who sold fake train tickets to passengers. Scalping admission to cultural events has been an issue at least since the 1920s, when New York passed the first anti-scalping legislation.

Until recently, theater owners, sports franchises and other event producers seemed locked in an eternal conflict with ticket speculators. The owners and producers tried to limit the secondary market, while speculators searched for new ways to get their hands on low-priced tickets. The logic behind this conflict was simple: Producers tend to charge less than the market will bear for tickets, either to guarantee a full house or to ensure that regular fans can attend a performance. Ticket speculators have no such scruples and simply want to maximize their profits. Ticket prices also tend to be hard to set in advance, creating opportunities for speculators to buy low and sell high - or to lose money if, for example, a play highly touted in advance turns out to be a box office bomb.

Speculators have resorted to an astounding variety of schemes to get their hands on cheap tickets. The strategies described in a 1999 report issued by then-Attorney General Eliot Spitzer include: hiring "diggers," typically homeless people to stand in line at the box office to buy up as many tickets as possible; using high-speed dialing equipment to buy tickets sold over the phone; and paying "ice," or bribes, to box office employees willing to illegally set tickets aside.

In one case, scalpers opened a counterfeit Ticketmaster outlet with the sole purpose of diverting allotted tickets for resale on the black market. A bogus Long Island outlet sold its sixth set of allotted Barbara Streisand concert tickets to the first person in line, and its 22nd set of tickets to the sixth person in line, the report said, "leading to the conclusion that the outlet operator was setting aside or purchasing tickets, in between sales, for resale to a ticket broker for personal profit." As a result, approximately 50 percent of the seats never went on public sale

In response to such tactics, some theater owners and rock bands tried to fight back. In 2006, the rock musician Tom Petty voided 600 tickets sold through a fan club web site after he discovered that tickets were being re-sold at several times face their value. Petty then offered the tickets for resale on the site, but required that buyers show up to the concert with photo identification to ensure that they were the original purchasers of the tickets.

CALLING A TRUCE?

The Internet emerged to dramatically change the equation. It transformed the sometimes shady world of secondary ticket sales into a safe, secure and booming business. Companies like StubHub, started in 2000 by two Stanford business school graduates and sold to Ebay last year for $310 million, make money by serving as a third party between anonymous buyers and sellers. According to spokesman Sean Pate, 3.3 million tickets were sold on the site last year. By charging both buyers and sellers a 10 percent commission on each sale StubHub garnered over $400 million in gross revenues, a significant slice of the $3 billion generated in online secondary ticket sales nationwide.

Policing secondary ticket sales, which was always difficult, became virtually impossible with the new technologies. This was particularly true in New York, where the anti-scalping law was relatively toothless. All secondary market companies had to do to evade the law was set up shop out of state. And so, according to estimates reported in Playbill, New York City accounted for one-third of all secondary market sales nationwide.

Last year, Broadway owners, long-standing supporters of strict scalping regulations, signaled that they would not oppose legislation ending most restrictions on ticket scalping. In a letter to state officials, Gerald Schoenfeld, chairman of the League of American Theatres and Producers, wrote, "Ticket prices would probably not skyrocket if the cap placed on the resale of tickets were to be lifted." Instead, according to Schoenfeld, "an increase in the number of legal resellers (who comply with licensing and other regulations) will increase legal competition in the marketplace and drive prices down."

And the legislation passed this year gives special inducements to theater owners. Those operating venues with 5,000 or fewer seats will have the exclusive right to open resale offices within the 500-foot scalp-free buffer zone. As with StubHub, theater resale offices would make a profit by taking a commission on each ticket sale.

Sports teams have also joined the secondary market stampede. The Mets have their own service, Mets Ticket Marketplace, where season ticket holders can sell individual game tickets for a 10 percent service fee. The Yankees have announced plans to launch their own site, called Pinstripe Management.

THE EFFECT ON TICKET PRICES

The most important issue for many fans is whether or not ticket prices will rise as a result of the new law. According to Pate and Schoenfeld, ticket buyers will benefit from the expansion of the secondary market, because the ease and security of the Internet will make more tickets available for resale. And Economics 101 holds that greater supply leads to lower ticket prices. At the same time, by giving consumers multiple options to choose from, sites like Stubhub.com remove the "information asymmetry" problem common to ticket scalping. It's the difference between furtively approaching a number of ticket scalpers in front of Yankee stadium and reviewing information about ticket prices on the Internet.

But not everyone is convinced. Some argue that an open secondary market will relentlessly increase demand, and thus prices, for tickets. "All this free market stuff is a lot of hooey," Haven of the New York Public Interest Group said. To Haven, ticket sales "are not a traditional marketplace" because the supply of tickets to popular shows can't be increased to match the demand. The result will be a world where "consumers compete against corporate expense accounts for the best seats." While some might say that that is the way things should be in a capitalist system, Haven believes that the fact that most stadiums are subsidized by public dollars also gives "taxpayers a greater interest in fair distribution of tickets at fair prices."

In a contrarian's view, University of Texas economist Craig A. Depken found that cities with anti-scalping laws charge an average of $2 more per game for baseball tickets and $10 for football tickets, essentially because hard-core fans may be willing to pay more than speculators for advance tickets to games where the game's true value is unknown. For example, a ticket speculator might figure that a late September game between the Yankees and Toronto Blue Jays, both currently about 10 games behind division-leading Boston, would be an exercise in futility for both teams - and not a good investment. A die-hard fan would be more likely to imagine the Yankees being locked in a hot pennant race at that point and so would eagerly buy a high priced ticket now to insure being in on any late-season action.

Those knowledgeable about the buying and selling of tickets can cite examples where a free market would bring up prices - and other cases where it might result in lower costs for fans.

In 2002, Princeton University economist Alan B. Krueger sent 12 graduate students to Bruce Springsteen's "The Rising Tour" concert in Philadelphia, where close to 20,000 tickets had been sold for a uniform price of $75. The students interviewed 858 fans and found that between 20 and 25 percent of the fans surveyed had scalped a ticket, at an average price of $280. If all the tickets had been sold at the "market" price of $280 (the average price fans were willing to pay), Springsteen could have collected an incredible $4 million in revenues over and above the $1.5 million he made from selling 20,000 tickets at $75 apiece.

On the other hand, tickets for Barbra Streisand's farewell tour last year, where prices ranged from $150 to $5,000, could be bought for only a quarter of the full price online. "I got three $850 tickets for only $750 from a guy on Craigslist," said concertgoer Ronald Butts. "It's evidence that the free market works both ways."

There are creative strategies that sports teams, theater producers and artists can employ to keep ticket prices low - if they choose to use them.

One example is Tom Petty's method of requiring identification to ensure that cheap tickets are being used by the original purchaser. Another is the strategy used by the Public Theater for Shakespeare in the Park. Fans arrive as early as 6 a.m. to line up for free tickets, which are distributed the day of the performance. Each person can get only two tickets, and monitors make sure that people do not jump the line or join friends who are ahead in the queue. In essence, the Public Theater gives fans the opportunity to trade time for money, while limiting opportunities for scalping. In addition, the Public Theater sells a small number of premium tickets for $150 apiece, giving consumers who don't want to wait in line another option.

Independent of the effects of ticket scalping, ticket prices have been rising in recent years, particularly for superstar events like The Police concert tour and the Super Bowl and Broadway musicals. In 1953, for example, orchestra seats for "The King and I" went for $14 in today's dollars, far less than the $65 charged for cheap seats at popular musicals today.

The Sleaze Factor

Price aside, many patrons are pleased to be rid of the illegal scalpers. Fans waiting in line to pick up their tickets at StubHub's Last Minute Service Center four blocks from Yankee Stadium agreed that StubHub's biggest advantage over illegal scalping was security. For example, the company offers refunds on tickets that are counterfeit or arrive too late. As one customer picking up two tickets said, "If you go to an [illegal] scalper, you never know what you're going to get."

Karl Silcox, manager of StubHub's Last Minute Service said that, perhaps in recognition of this some illegal scalpers are already starting to sell their tickets through StubHub instead of in front of Yankee Stadium, although he hastened to add that it's the "more respectable guys" who are choosing that option. Over time, the law might put the worst of the ticket scalpers out of business, or at least force them to change their ways.

Back at Yankee Stadium, I settled into my bleacher seat, where my $5 soft-serve ice cream quickly melted in the hot sun. I was pleased with my vantage point - and the price I had paid for it. Still, some things remain open to chance. Despite all the hard work I put into getting a ticket to the game, the A's battered the Yankees 7-0.

Aubrey Fox is project director of Bronx Community Solutions, aimed at changing the Bronx court system's approach to low-level crime.

 

 

Taking Aim at Illegal Guns


On many nights Shaun Cheeseboro is awakened at 1 a.m., 2 a.m. or 3 a.m. by the cacophony of gunfire.

A 22-year-old resident of a New York City Housing Authority project on the Lower East Side, Cheeseboro, who just graduated from college with a degree in anthropology, vows to move out of the neighborhood by November. The gunfire and violence that saturate the streets where he grew up, Cheeseboro said, are far from welcoming.

"I'll go about my day as long as I'm home by 10 p.m., because I'm afraid I'll get shot," said Cheeseboro at a recent town hall meeting on violence in lower Manhattan's housing projects.

Cheeseboro is not alone. Gunfire still echoes through many city streets, even though New York City has what are widely believed to be the most stringent gun control laws in the country.

Faced with this paradox, residents and city officials contend that the guns come from other municipalities and from states with far less restrictive laws, where dealers can buy weapons in bulk and illegally sell them here. And so Mayor Michael Bloomberg has expanded his fight against crime far beyond the city’s borders. He is trying to get illegal guns off streets in New York City by lobbying for legislation in Washington and using covert sting operations to track down so-called rogue gun dealers, mostly in the South. People on all sides of the issue agree that Bloomberg has become the mouthpiece for gun control on the national level. But beyond attracting attention, has his campaign produced any real results?

Crime in New York

New York City has come a long way since 1990. With crime nearing a low not seen in years, recently released statistics from the Federal Bureau of Investigation show the city is the safest of any large metropolis in the country.

While violent crime increases across the nation, New York City's rate fell 4.6 percent in 2006 compared to 2005. Although the city's murder rate rose last year, it is down roughly 74 percent from 1990, according to the New York City Police Department.

Though violence is declining, illegal guns still extract a hefty toll in the city, officials said. In the first half of 2007, the police department’s Deputy Commissioner of Public Information Paul J. Browne said, illegal guns were used in 67 percent of the 232 murders that occurred.

In testimony before a House of Representatives subcommittee last year, Bloomberg said more than 300 people died by the trigger of an illegal gun in New York City in 2005. And, according to Bloomberg, 82 percent of the guns used in crimes in the city were purchased outside of the state.

While some neighborhoods are certainly far safer than others, no neighborhood, street or block is immune from violence. And a bullet can strike at anytime (a weapon was recently fired in Cheeseboro’s neighborhood in broad daylight striking one resident several times).

Tracing Guns

In an effort to stop the shooting, Bloomberg, along with Boston Mayor Thomas Menino, spearheaded Mayors Against Illegal Guns, a bipartisan coalition that in just a little more than a year has attracted more than 225 mayors in more than 40 states. Aimed at eradicating the illegal gun trade, the coalition is intent on repealing the Tiahrt Amendment, which restricts law enforcement’s access to data, compiled by the Bureau of Alcohol, Tobacco, Firearms and Explosives, tracing firearms across the country.

Currently, law enforcement officials can use the tracing data only to investigate a specific crime. For instance, when a gun is picked up at a crime scene, the police department can use the bureau's information to trace the origin of that specific weapon. But, under the amendment, police are unable to look at other data to spot trends or isolate problematic dealers, city officials said.

This was not the case before 2003, when the amendment was first included in a federal appropriations bill. Then, the police department "could use data from all crime guns (which the federal government once provided) to detect patterns of crime gun purchases … from certain gun dealers in certain states," Browne stated in an e-mail. "The information could be used to detect, for example, that a gun trafficker in New York was using one or multiple out-of-state dealers to supply a variety of criminals in the city. Without the overall data, patterns like that may be missed."

Eleven national police organizations have sided with the mayors’ coalition to oppose the amendment and so have dozens of state and local groups, including the New York Association of Chiefs of Police, according to the coalition. New York City Police Commissioner Raymond Kelly has called the restricted data "critically important to the work of law enforcement as we seek to identify where illegal guns are sold and how they wind up in the hands of criminals."

If the amendment were defeated, the coalition contends, data could be shared among law enforcement agencies across state borders to identify those dealers whose weapons account for the majority of gun crimes in America. The last time such data was available, almost five years ago, 1 percent of gun dealers accounted for weapons used in 60 percent of gun crimes nationwide, according to the mayors' coalition.

Gun associations and some members of Congress argue opening up the data would deteriorate the Second Amendment's guarantee for a citizen to possess a firearm and an individual’s right to privacy.

“Mayor Bloomberg and the coalition have been lying to the American public,” said Tom King, president of the New York State Rifle and Pistol Association, which boasts 40,000 members throughout the state. “They have always had access to the trace data as long as there was an ongoing criminal investigation. What they are trying to do is get unlimited access to information that has been off limits for years. It’s an invasion of privacy.”

For weeks before the Senate committee vote last month, the mayors’ coalition ran commercials in influential districts in an attempt to persuade certain legislators to open up the tracing data. But in late June, the Senate Appropriations Committee rebuffed the coalition’s appeal and instead strengthened the amendment. It passed a measure, proposed by Republican Richard Shelby of Alabama, that would make law enforcement officials subject to prison sentences if they used trace data from the bureau for anything but a specific investigation.

The House Appropriations Committee is scheduled to consider a similar amendment this week.

In a sharply-worded statement responding to the Senate committee’s action, Bloomberg said, “This version of the Tiahrt Amendment is worse than anything we’ve ever seen – and it’s a slap in the face to the men and women who put on a uniform every day and risk their lives to protect us.”

Gun control advocates see the committee vote as a decisive blow to the mayor’s campaign and as another sign of Washington’s long-standing resistance to taking on the gun industry and its lobbyists. For their part, gun organizations hailed the decision as a victory for what they view as their Second Amendment rights.

The Sting

But Bloomberg has not been content to simply lobby on the issues. In the spring of 2006, he sent private, undercover detectives to five states to target gun dealers who had sold weapons allegedly used to commit crimes in New York City, officials said.

The dealers allegedly participated in straw purchases, or sales made to a third party representing someone who would not pass a background check because he or she is a convicted felon. The investigators, city officials said, wore hidden cameras. One investigator inquired about a gun, then the other individual filled out the federal paperwork for a background check.

The investigations in Ohio, Pennsylvania, Virginia, South Carolina and Georgia resulted in lawsuits against 27 dealers filed in two rounds, one in May and the other in December of 2006. Nearly half of the dealers have since settled with the city and agreed to have their businesses supervised for federal compliance by a special master selected by the city and approved by the court. The special master closely monitors the dealers' sale activities and is paid for by the city.

The settlements, which found the dealers sold firearms in violation of federal and state statutes, also sets up a fee structure for future violations ranging from $1,000 for the first offense to $3,000 for the third and subsequent offenses, according to the city.

But some in federal and state government, in Virginia in particular, are fighting the sting operations. The Justice Department has requested the Bloomberg administration "cease and desist" with their covert criminal investigations.

To prevent more Bloomberg-backed lawsuits against local gun dealers, several states are considering allowing only law enforcement – and not private investigators – to conduct investigations of straw purchases. Virginia Governor Tim Kaine signed legislation in March that prohibits anyone but law enforcement from attempting to buy a firearm through illegal tactics. Violators could face up to five years in prison.

One organization in Virginia specifically held a gun raffle in defiance of the metropolitan mayor’s gun control initiative.

The Reaction at Home

Back in New York, though, many applaud the mayor’s tactics.

"He is national leader on the issue, and he has stepped in where Washington has failed,” said Jackie Kuhls, executive director of New Yorkers Against Gun Violence. “Going out to the source of gun crime is critical. If you only wait for someone to be dead from a gunshot, that's too late.”

But such acclaim is not universal. Some gun dealers in the five boroughs said Bloomberg’s efforts in and out of the metropolitan area inhibit law-abiding citizens from owning a handgun.

From his store in Staten Island, which has sold firearms for seven years, Dino Longueira said acquiring a handgun in the city is complicated and exhaustive (most of the time it takes more than six months for a permit to go through). “You have to be somewhat of a paralegal to even go through the process,” said Longueira. “It’s designed in my opinion to discourage people. … I can’t imagine how more restrictive licensing of citizens has anything to do with the drop in crime.”

Bloomberg’s crusade, Longueira said, has assisted the National Rifle Association’s argument: that more restrictions tear away, piece by piece, at the Second Amendment.

But Bob Derrig, a co-owner of West Side Rifle & Pistol Range in Manhattan, said despite the “sneaky” tactics, he agrees with Bloomberg in getting illegal handguns off the street. “Every time they put a new law in it annoys you sometimes, but you get used to it,” said Derrig. “No illegal guns are sold from dealers in New York City. However that doesn't say that a gun I sell to an individual isn’t used in a crime after it's stolen.”

Greater enforcement of the city’s already-established laws goes hand in hand with the gun regulations, he added.

Local political leaders have backed the Bloomberg agenda and readily passed initiatives further restricting access to guns. The City Council worked with Bloomberg to establish the first metropolitan registry of gun offenders, while it also condemned a proposed gun-themed restaurant in Times Square backed by the National Rifle Association. (The NRA eventually abandoned the idea.)

After Councilmember James Davis was killed at City Hall in 2003, the council was even more eager to support gun control initiatives and explored making gun manufacturers liable for gun-related deaths.

A National Agenda

For his efforts, Bloomberg has been demonized on pro-gun blogs and chastised in conservative editorial pages.

But others have congratulated the mayor for his gun control crusade. “He gets five stars all the way across the board,” said Professor Eugene O’Donnell of the John Jay College of Criminal Justice. “He is a national leader. It’s really a disgrace that he has to be the leader that he has been.”

Bloomberg’s actions have helped fuel speculation that the mayor is seeking the White House. As he chastises a partisan Congress for not doing more to curb guns - among other things – some see him adding to his national profile and building support for a presidential run.

Living In Fear

Back on the Lower East Side, residents who have seen the toll of gun violence for decades have more immediate concerns. They want more law enforcement, safer streets and quieter nights -- now.

The guns in their neighborhood, some residents said, are illegal and come from locations outside of New York, like New Jersey and Philadelphia. They want more police to halt the illegal activity.

Although Cheeseboro plans on getting out, he worries about his two brothers --– teenage boys surrounded by gunfire and at risk of joining the area’s gangs. "I fear for them constantly," said Cheeseboro. “Shootings happen often. I think everyone in the neighborhood is afraid.”

The violence may not mirror that of the 1990s. But advocates said the nation must do more to end the shooting. “There are still children that go to sleep to the sound of gunfire," said Kuhls of New Yorkers Against Gun Violence. "We still have residents that live in fear. The mayor understands that.”

 

The Move to Expand DNA Testing


Governor Eliot Spitzer’s proposal to greatly expand the state’s database of DNA samples along with the exoneration last week of a New Jersey man who served 19 years in jail for the gruesome murder of two children has reopened debate about the use of a technology that could fundamentally change how justice is administered in New York City.

Spitzer wants to require testing of all individuals found guilty of felonies or misdemeanors, in state prison or on parole or probation, while making it easier for defendants to use DNA sampling to prove their innocence. In attempting to pass legislation that has been blocked several times in recent years by the state Assembly, Spitzer seeks to emphasize the role that DNA testing can play in freeing the innocent, as well as in fighting crime. It’s a powerful combination, given recent high-profile wrongful conviction cases, such as Alan Newton of the Bronx, freed by DNA sampling after serving 22 years on a rape charge, and Scott Fappiano, erroneously imprisoned in 1983 for the rape of a Brooklyn woman, that have rocked New York’s criminal justice community.

The legislation includes measures that make it easier for defendants and judges to request DNA testing. It would also create a state office to examine wrongful conviction cases in New York State and propose reforms.

Spitzer’s bill has the support of Brooklyn Democrat Joseph R. Lentol, chairman of the Assembly’s committee on criminal justice issues. Other prominent players, such as Assembly Speaker Sheldon Silver, and Barry Scheck and Peter J. Neufeld of the Innocence Project, which has used DNA testing to free 23 wrongfully convicted New Yorkers, have not yet announced a position. The New York Civil Liberties Union has come out against the bill, citing concerns about the state’s ability to set, and enforce, consistent rules for the storage and processing of DNA materials.

Passage of the legislation would have a dramatic impact on New York City, which has invested over $250 million in a state-of-the-art forensic laboratory in Manhattan. Mayor Michael Bloomberg and his police commissioner, Raymond Kelly, enthusiastically support Spitzer's proposal. In the past, Bloomberg has argued for expansion of the state’s DNA sampling program on the grounds that many people who commit minor crimes also commit more major offenses and so that having DNA from so-called “petty criminals” would help solve bigger cases. He and Kelly have argued that the state’s existing restrictions on DNA sampling restrictions hurt the city’s ability to use DNA to reduce crime rates even further.

Regardless of the bill’s prospects for passage, DNA testing – only a little more than two decades old – offers a potentially transformative crime fighting technology. What may be less clear to New Yorkers are its benefits and drawbacks.

A NEW TOOL

Deoxyribonucleic acid, or DNA, is a molecule that can be found in all cells and is left behind in blood, saliva, sweat, semen, hair and skin, biological evidence that can often be found at crime scenes. DNA testing was developed by geneticist Alec Jeffreys of Leicester University in England in the early 1980s. He discovered that DNA could be used to isolate a “genetic marker” unique to each individual.

Jeffrey’s new technique was employed almost immediately to help solve two notorious rape and murder cases in the nearby countryside. After a 17-year-old confessed to one murder but not the other, the police asked Jeffreys to conduct a DNA test of the suspect. It revealed that he had given a false confession – making him, in Jeffrey’s recollection, “the first man ever proved innocent by molecular genetics.” The police then took blood samples of over 5,000 men from the nearby community and stumbled on the real killer when he was overheard bragging about getting a friend to submit a substitute sample.

NEW YORK’S DNA PROGRAM

Launched in 2000, New York’s DNA database holds 250,000 samples. Spitzer's proposal would immediately add 50,000 samples from prisoners, probationers and parolees, while hundreds of thousands more would be added over time from a broader array of newly convicted offenders.

The database is currently divided into two sections, a Forensic Index, which contains DNA samples taken from crime scenes, and a Convicted Offender Index. Supporters of DNA testing hope to collect as many samples of individual DNA as possible to compare to DNA taken at crime scenes. According to their logic, the likelihood of a crime scene “hit” goes up if there are more DNA samples in the Convicted Offender Index. The testing itself is quick and simple: Just a cotton swab dabbed at the individual’s mouth

At first, sampling in New York was limited to individuals convicted of sex crimes and some other felonies, but the law has since been amended to cover many more offenses. Currently, about half of all individuals convicted of a crime in New York are required to contribute a DNA sample. Spitzer’s legislation would extend testing to all convicted felony and misdemeanor offenders, though it would not include individuals who plead guilty to lower-level violations such as disorderly conduct. In addition, 50,000 samples from state prisoners, as well as individuals on probation and parole, would be added to the database.

A NEW TOOL FOR POLICE

Since it was introduced in New York, DNA sampling has emerged as an important tool in hard-to-solve cases like burglaries, in which, according to the New York Times, arrests are made in only about 15 percent of reported offenses. In 2004, a pilot program launched in Queens called Biotracks, which netted 23 suspects tied to 34 burglary cases in a nine-month period, according to the Times. It led to the arrest of one man, Robert Medina, who pled guilty to five burglaries after DNA on a scarf he left at a crime scene was matched to a sample taken from him after a previous felony arrest.

The same procedure can be used with sex offenses, which are also difficult to solve. In a recent case, DNA from a Queens man convicted on a drug-related charge was matched to a sample saved from a rape kit that included a taunting note left for the victim. As a result, he was found guilty of first-degree rape and second-degree burglary.

Speaking in 2006, Police Commissioner Kelly asserted that DNA testing had led to the arrests of 210 sex offenders. New York City. The technology spurred the elimination last year of the state’s five-year statue of limitation for rape cases.

Perhaps the strongest case for expansive DNA sampling comes from England, which, in the last decade, has embarked on the world’s most aggressive DNA gathering effort. The country’s DNA database maintains over 4 million samples, covering about 6 percent of the population, more than ten times the rate at which DNA samples are collected in the United States. The database has yielded close to 3,000 crime scene matches per month, according to NewScientist.com, including “hits for 15 murders, 45 rapes and sexual offenses and 2,500 car, theft and drug crimes.”

At the same time, DNA sampling can help prove the innocence of individuals wrongly convicted of a crime. The Innocence Project, which uses DNA to try to win the release of the wrongfully convicted, has helped exonerate 201 individuals in the United States, and 23 in New York State. Most recently, DNA testing was used to exonerate Byron Halsey, the New Jersey man who had served 19 years in jail for the murder of the seven and eight-year old children of Halsey’s girlfriend. DNA testing instead implicated a neighbor who had testified against Halsey during the trial. In a statement that shows the powerful impact of DNA, the victims’ mother said, “I knew Byron loved Tyrone and Tina. It didn’t make sense to me that he could have done this. I always had my doubts, but I didn’t know what to do about them. I am thankful that the DNA testing has identified who really did this to my children and that Byron is being released today.”

THE CIVIL LIBERTIES ISSUES

But along with its promise, any tool as powerful as DNA is bound to raise concerns as well. Some fear the technology can be misused, that DNA sampling is a slippery slope that will inevitably extend beyond a relatively small number of convicted offenders.

For evidence, some civil libertarians point to Britain. While the Spitzer proposal extends testing only to those convicted of crimes, however minor, in the United Kingdom the police take DNA samples from all those arrested. Since 2001, they can retain those samples even when the arrest results in an acquittal. And in 2004, the police received the authority to collect DNA from suspects, an even lower threshold than arrestees. The country’s database also includes samples from children under the age of 16, including two 12-year-old children who gave a DNA sample after they were accused of damaging a tree they were using to build a tree house.

While the large number of samples makes it more likely that police authorities can make a “hit” to DNA recovered at a crime scene, keeping samples from innocent people arguably violates the legal principle of “innocent until proven guilty.” As one civil libertarian said, “If your DNA is on the database it means that you are forever an automatic suspect for any crime in the future.”

Those who tend to dismiss arguments often draw an analogy to fingerprints– the criminal justice antecedent of DNA sampling. They are widely collected in the United States, private companies and government agencies use fingerprinting for security purposes, and consumers may soon be able to “unlock” cell phones, laptops and even their homes with fingerprint censors.

Why should New Yorkers be any more concerned about DNA sampling than they are about fingerprinting? One argument is that the information in a DNA sample is much more detailed, containing clues about an individual’s health and ethnicity. In the future, it might offer clues to an individual’s propensity to violence and criminal behavior. In light of this, some critics fear a science-fiction world where DNA sampling could convict individuals before they even commit a crime. Even Alan Jeffreys, who created DNA sampling, has been quoted saying that “as a geneticist I would greatly value the potential enormous power of the database for research, but it’s a gross infringement of civil liberties.”

MANAGING THE EVIDENCE

A less abstract argument raises the issue of whether the state’s already overburdened crime laboratories will be able to handle the increased numbers of samples. If not, evidence could be lost, mislabeled or used inadvertently to make false matches. In a press release critiquing the legislation, the New York Civil Liberties Union focused on what it calls the lax regulation of the state’s DNA laboratories. “Expansion of the databank will overload crime labs and undermine effective criminal investigation,” the statement said, and lead to “large backlogs in the processing of samples [that will] significantly delay the identification and apprehension of violent felons.”

In an op-ed published in June 2006 entitled “Think Before You Swab,” New York state Senator Thomas Duane raised a number of similar issues. He also asked whether an expansion the DNA database could lead to diminishing returns, citing statistics provided by the Division of Criminal Justice Services that fewer DNA “hits” resulted from expansions beyond a small number of felons. “Does [that] signal that adding genetic material from people convicted of lesser crimes has no positive impact?” Duane wrote. “Moreover, is it possible that increasing the number of samples will so overtax the system that the database will actually be less effective?”

It’s perhaps telling that the New York Civil Liberties Union centered its critique on the effectiveness of DNA sampling. The group may well have calculated that DNA sampling, which promises to solve crime and free the innocent at the same time, is too politically popular to take on directly. Or perhaps it shows an underlying confidence that the United States, which has a stronger tradition of civil liberties than Britain does, will be able to navigate the thorny trade-offs between exploiting the full potential of DNA sampling and protecting privacy rights.

In any case, one issue that DNA proponents and critics appear to agree on is the need to improve the state and city’s ability to process and analyze DNA, as well as other crime scene materials. Unfortunately, criminal justice authorities do not have a great track record on this score. Bronx resident Alan Newton, who served 22 years in prison for a rape he did not commit, is a good case in point. For a decade, police officials insisted that they could not find a rape kit that would allow for a test against Newton’s DNA. The kit, held in an enormous Queens warehouse along with over one million pieces of evidence, was finally found in its original 1984 storage bin.

Or take the example of Scott Fappiano, who spent 21 years in jail on a wrongful conviction for rape because key evidence was found only after an intensive two-year search. “It’s appalling that 21 states around this country have enacted preservation statutes for biological evidence, but New York has not,” the Innocence Project’s Peter Neufeld has said

Given that record, the key to ensuring public support for expanded DNA sampling may rest in more in New York’s ability convince the public it can use the technology effectively and responsibly than in the technology itself.

Aubrey Fox is project director of Bronx Community Solutions, aimed at changing the Bronx court system’s approach to low-level crime.

 

Upholding the Cell Phone Ban


The New York City Department of Education’s ban on cell phones in all public schools has been upheld in a decision of the state Supreme Court.

Regulations on discipline in schools, established by the chancellor of the New York City Department of Education, forbid students to bring a variety of dangerous objects such as knives, guns, and box cutters into any school building; among the prohibited articles: cell phones.

Despite opposition efforts to limit the ban to the use of cell phones in schools rather than mere possession, an acting justice upheld the total ban as well as the department’s power to impose punishment including confiscation of phones. Students who attend schools the department considers particularly dangerous go through metal detectors that can find the phones. But all students, even those in schools with a rather low incidence of discipline problems, are subject to search by magnetometers and roving metal detectors that go to different schools every day.

FAMILY RIGHTS, CHANCELLOR’S PEROGATIVE

The Chancellor’s Parents Advisory Council and eight parents contend in a lawsuit known as Price against New York City Department of Education, Mayor Michael Bloomberg et al, that their children’s safety is threatened by not being able to carry phones, which the parents characterize as a "lifeline" to call for assistance while traveling to and from school, at after-school activities or athletic events. or in case of a public emergency or disaster. The parents agreed that the use of phones in schools is undesirable, but argued that banning their use, rather than their possession, would adequately meet the chancellor’s objectives.

The petitioners had argued that the rule eroded the constitutional rights of parents and children to make family decisions. Because of that, they said, the rule’s purpose must be examined with heightened scrutiny.

David Leichtman, a partner at the law firm of Morgan Lewis, along with civil rights attorney Norman Siegal, is representing the petitioners pro bono, says, "This is not a case about cell phones. It is about who is responsible for the safety of our children before 9 and after 3. The chancellor’s authority ends at the school door," Leichtman argued. "The mayor’s policy that we are challenging deprives the 1.1 million most vulnerable kids of New York City of their safety."

Siegal, describes the rule as "an intrusion into the relationship between parents and their children," and argues that government must show that it has an essential interest, if they are going to be permitted to interfere with that relationship. The lawsuit contends that there has been no such showing to support infringing on "the care, custody, and control of petitioners’ children."

For its part, the Department of Education contented that that anything education-based is beyond the court’s powers of review. The court rejected that argument as “frivolous.”

But then when Judge Lewis Bart Stone went on to consider the challenges to the cell phone rule, he found that, contrary to the parents’ claims, the ban was neither arbitrary nor unconstitutional. The court concluded that its function was to determine whether the promulgated rule was rational, and found that it was.

CELL PHONE AS ‘LIFELINE’

The petitioners all have children in middle school or high school and live in various parts of the city. The students travel by subway and bus to distant schools, often in other boroughs. Court documents detail allegations of risks to children who do not have cell phone "lifelines," and problems averted when they did have phones.

Raven, the 9 year old daughter of Isaac Carmignagni of Queens, was locked out of school before her adult escort arrived to pick her up, but was able to call her father on her cell phone.

Named petitioner, Camella Price, a single mother who is chief of staff for a New York state senator, knows that her two young daughters are subject to school searches by roving metal detectors. Still, she has instructed them to continue to carry their cell phones to school, turning them off during class. Prior to enforcement of the ban, her younger daughter at 11 was beaten up on her way home from school and was able to use her cell phone to call for help.

Beth Berenbaum described in a letter to Chancellor Joel Klein, that her son, a high school freshman travels from Staten Island to Manhattan’s LaGuardia High School by ferry and train, calling his mother at work in New Jersey when he reaches his destination. Responding to her letter, the chancellor’s office said, "It is the experience of many of our principals and teachers that if phones are allowed into school buildings, they will be used inappropriately. ... Aside from simple disruption, students have used cell phones for far more serious offenses. In the past, for example, students have used cell phones to rally support during fights, to cheat on exams, and to take illicit photos of school work or people. ...All of these situations negatively impact the learning environment and cannot be tolerated."

Other examples of the usefulness of the phone include:

--a description of September 11, 2001, when cell phones provided the only means of communication.

--a 12 year old calling her mother from a cell phone because a man was following her from her bus stop.

--a student using a cell phone to find out how to get home after the youngster’s regular train station was evacuated due to fire.

Carmen Colon detailed her 10 year old son’s commute of one and a half hours each way from his Brooklyn home and the need for him to coordinate his travel arrangements with his two older brothers.

WHAT THE JUDGE FOUND

While the court did not take any position on the issue itself, other than his deciding that the Department of Education’s action is rational, the judge issued a lengthy decision containing expositions on procedural technicalities and personal philosophy along with a section labeled, "What is a cell phone?" Judge Stone, who normally hears criminal cases, made numerous references to infractions, discipline, security, magnetometers and cited his own experiences, commenting, "the Court has regularly observed that a ban on use does not always assure that cell phones do not ring in the courtroom at inappropriate times and cause disturbances. However, when they do, the Court, unlike a teacher in a classroom, has the benefit of armed court officers to enforce the use ban and to assure the restoration of order."

The decision rejected two amicus curiae briefs. These are offered to a court by interested groups or individual "friends of the court," who are not actual parties to the lawsuit, but seek to impress an expert point of view, or an argument not presented in the main litigation. But, the judge wrote, "Some of those claiming to be amici are really enemies posing in friend’s (sic) clothing. ... Each ill-considered amicus application puts an unnecessary and unwarranted burden on the Court, as such application must be read and addressed, if only to be rejected."

One of the rejected amicus briefs was offered by the United Federation of Teachers on behalf of classroom teachers, who said that, from their unique perspective, the phones are not disruptive.

In discussing the teachers’ role, the judge, who did eventually accept an affidavit from teachers union president Randi Weingarten, decided contrary to the teachers’ position. "Any enforcement system focusing on use, rather than possession, requires teachers, rather than only security personnel at the school door, to observe and enforce the ban and become involved in confronting students and punishment decision, in detriment of their pedagogical mission,” he said.

ROOM FOR COMPROMISE?

The petitioners have informed the education department that they would agree to have the phones parked in lockers. It appears, though, that most schools in this city do not have lockers for coats or sneakers, let alone cell phones. However, the city has issued a request for proposals from the private sector to install, commercially and off school premises, special lockers in which to place cell phones on a daily, paid basis.

In the meantime, lawyer Leichtman said , "We don’t see what the big deal is. Mayor Bloomberg is making a mountain out of a molehill." He said his clients "have a firm belief in the way they need to raise their children, and that it is not the schools’ business."

The petitioners and the lawyers are "seriously looking at an appeal," according to Siegel. Efforts to reach the attorneys who appeared on behalf of the city’s Corporation Counsel were unsuccessful.

Emily Jane Goodman is a New York State Supreme Court Justice 



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