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Citizens Union

Public Safety

State Removes Statute Of Limitations For Rape Cases


New York's criminal law is about to undergo a major change following the legislature's elimination of the statute of limitations for rape cases.

Until now, unless charges of rape were brought within five years, there could be no prosecution. When the new law goes into effect, there will be no time limit in New York State for apprehending, arresting and prosecuting rape in the first degree. This is already the case with murder charges.

While efforts to expand or end the statute are not new, the issue catapulted into public awareness – and became the subject of intense lobbying -- during the 2005 Manhattan trial of People v. Fletcher Worrell. In 1973, Worrell was indicted on charges that he climbed through a bedroom window and raped Kathleen Ham, then 26. Yet, he was on trial more than three decades later.

Worrell first had been tried 33 years ago, in the same courthouse. But that trial resulted in a hung -- or undecided -- jury, and Worrell then was released on bail. He jumped bail and vanished. The presiding judge issued a bench warrant for Worrell's arrest, and he became a fugitive.

In this particular case, the commencement of the first prosecution tolled -- or stopped -- the statute of limitations. Even if the first trial had not taken place, Worrell’s fugitive status, once charges were brought, would have kept the prosecution viable.

Worrell was rearrested in Georgia when he tried to purchase a gun. The required background check revealed the New York warrant, and he was extradited to New York to face the original charges.

In the meantime, damaging DNA evidence implicating Worrell was found. The evidence was not useful 33 years ago, as the science of DNA had not yet developed for forensic purposes.

Even though the statute of limitations did not stop prosecution in the Worrell case, the trial illustrated that someone accused of rape, but arrested six after years after the assault would be free from prosecution under the five-year statute of limitations. This would be the case even though the use of DNA could link a suspect to a crime such as rape indefinitely.

Statutes of limitations in both criminal and civil law refer to the period of time during which an action or prosecution can be brought. While the change removes the statute of limitations in criminal cases, it increases the time limit for civil actions for rape from one to five years.

There have been exceptions to the statute of limitations for certain crimes -- those considered the most serious, such as murder, arson and kidnapping -- but rape was never included in this group of crimes.

Until the women's liberation movement of the late 1960s and early 1970s focused on violence against women and made the issue of rape a top priority, prosecution of rape cases was extraordinarily difficult for the victim. The culture and beliefs surrounding rape made legislators, prosecutors, police, judges and jurors, believe that, when a rape occurred, it must have been the woman's fault; she must have consented or "wanted it." The law also required corroboration by another witness or other evidence that the victim tried to fight off the attacker. The victim's past sexual history and reputation were fair game for cross-examination. And if the assault did not occur between strangers, it was not viewed as rape. What is now known as "date rape" was not acknowledged, and certainly it was not accepted that a woman could be raped by her husband or a prostitute by a "John."

In the 1970s, this began to change, and it became easier to successfully prosecute rape. But in New York, the statute of limitations remained five years.

Susan Brownmiller, author of “Against Our Will: Men, Women and Rape,” which is considered the classic work on the subject of rape, says the change in the time limit should have happened in the 1970s and finally occurred because of an “incredibly active” lobbying effort by the National Organization for Women. Ending the statute of limitations, she says is, “more important now because of DNA. You can eventually find the guy who couldn't be found by other means. "

But criminal defense lawyers, who do not want their clients exposed to arrest, prosecution and conviction indefinitely, disagree. David Feige, a criminal defense lawyer and author of “Indefensible,” says, "There has to be some finality.” He says he is “squeamish” about cases being prosecuted 20 to 25 years after the crime: “It makes it basically impossible for the defendant, because usually the defense will be ‘consent,’ and who will remember where they were, what happened? … The accused is effectively prevented from presenting a defense."

Other defense lawyers and civil libertarians are concerned about the increased collection of DNA samples and its implications, such as the use of DNA evidence many years after the fact and invasions of privacy.

New York's statute of limitations has been one of the shortest in the nation. According to NOW New York City, as of 2005, there were 690 rape cases that could not be prosecuted because of the time limit. The change in law, the group says, will "finally bring justice to some victims of rape."

Emily Jane Goodman is a New York State Supreme Court Justice

Picking Supreme Court Judges New York


In January, U.S. District Judge John Gleeson ruled that the current system of nominating State Supreme Court judges in New York is unconstitutional. At a recent forum at the Association of the Bar of the City of New York, a panel of experts weighed in on the subject of how to select judges and why it matters. The following articles are edited transcripts of the event.

Giving Voters Real Choices
Deborah Goldberg of the Brennan Center argues that with certain reforms, primary elections could address many of the current problems in selecting judges. Read more

Selecting the Most Qualified Candidates
Michael Cardozo, the counsel for New York City, argues that while merit selection is the best way to appoint judges, screening panels that recommend the best judicial candidates is the most practical approach. Read more

Creating A Diverse Judiciary
Paul Wooten, who has served as a delegate to Brooklyn’s Democratic judicial convention, argues that, for the most part, the current system works and elects judges that represent the diverse city. Read more

 

Mafia: Rise, Fall and Resurgence


Selwyn Raab recently met with Gotham Gazette's Reading NYC Book Club to discuss his book Five Families: The Rise, Fall and Resurgence of America's Most Powerful Mafia Empires, a history of the Mafia from its origins in Sicily to the present day. The following is an edited transcript of the event.

GOTHAM GAZETTE: Mr. Raab, your book focuses largely on the fall of the New York crime families, but the title includes the phrase "resurgence." What's going on with the Mafia in New York City right now?

SELWYN RAAB: Up until 9/11, there had been a 20-year long, concentrated attack against the Mafia, based on the Racketeer Influence Corruptions Act, popularly known as RICO. What was important about RICO was that for the first time it gave prosecutors an effective tool to go after the big shots in organized crime. At the attack's peak, there were 200 people working full time on just investigating the five Mafia families in New York -- the Gambino, the Bonano, the Colombo, the Lucchese, and the Genovese. The FBI had a specific squad following each family, and were able to bust John Gotti, Vincente "The Chin" Gigante, and other bosses, even though they didn't pull a trigger or shake anyone down themselves.

[This prosecution was coupled with a] concentrated effort to knock the Mafia out of some industries. Waste collection and construction were two immense moneymakers for them, and they've been hurt in both industries, especially commercial garbage collection. There is now some oversight by city agencies, licensing etc. The Mafia has been severely wounded in some of these big industries – but not mortally.

As soon as 9/11 occurred, terrorism justifiably became a prime concern and objective for the FBI and most police departments, including New York's. This created a reprieve – suddenly you had this tremendous diminution of people investigating the mob.

Today, the Mafia is still making money in gambling and loan sharking. The penalties for these crimes are very small, nobody goes away for a long time, and bosses are never brought up on charges. Still, this is terrific seed money to keep them going.

The Mafia is still very big on Wall Street, counterfeit credit cards, and phone scams. But a lot of the most recent action has been in the suburbs, where the theory is the local police departments don't have the expertise to stop them.

FORMING THE MAFIA

GOTHAM GAZETTE: Is there a fundamental difference between the Mafia and other types of organized crime?

SELWYN RAAB: We've always had organized crime groups – you had Irish and German gangs on the Bowery, Jewish bootleggers, the Italians, and so on. To oversimplify, prohibition changed all these gangs from street thugs to executives. The money was so big that they could expand, and when prohibition ended, they had big organizations to go into different things like labor racketeering.

But the Italians had a business genius named Charles "Lucky" Luciano. Luciano saw the handwriting on the wall – prohibition was going to end, and what were gangs going to do for loot? He also saw the lack of a central organization. Luciano had a major convention [of Italian gangs] in Chicago in 1931, and said we can't have fights among ourselves anymore, because it's bad for business. He turned the Italian gangs into a semi-military organization based on what had been going on in Sicily, where each family had a boss, underboss, consigliere, and soldiers.

Charles "Lucky" Luciano

If you knocked out the leaders of the Jewish or Irish gangs, they dissolved, because there was no military setup. But Luciano set up the Mafia so that the individual is secondary to the organization; the theory was that the organization had to survive at any cost. If the boss died or was arrested, the organization replaced him, and he set up another hierarchy.

To stop disputes between families, Luciano created something called the Commission comprised of representatives from each of the five New York families. Immediately, they had more power than anyone else in the country.

Luciano also urged the Mafiosi to diversify their activities. Instead of having just gambling or loan sharking as other gangs did, they went into labor racketeering. They were a mirror image of capitalism: whatever works.

That distinction still exists today. The Mafia has such a lot going for it. The Latin Americans – Columbians and Mexicans – are into one thing: narcotics. They don't have the know-how to do these other kinds of crimes. Same thing with the Asian gangs, the Chinese. They may be involved in smuggling immigrants, or do shake down rackets on stores or restaurants in Chinatown and Queens. But they're not involved in other things.

THE IMPACT OF ORGANIZED CRIME ON NEW YORK CITY

GOTHAM GAZETTE: Why did New York City's Mafia families have such a disproportionate amount of power within the nationwide Mafia right from the beginning?

SELWYN RAAB: We can thank Benito Mussolini partly for this. The Mafia had always been very strong since it started out in Sicily in the 18th century, where people once thought of them as liberators because they fought against the foreign invaders, protecting the small farmers, peasants, and businessmen. They developed into a tyrannical organization, and they grew very powerful both politically and financially. When Benito Mussolini came into power, he saw them as a threat and started a crackdown. He rounded people up and put them in cages, sent them away for life, or killed them.

Because of this, a lot of the young Mafiosi in the 1920s emigrated to the United States, and the major place they went was New York City. They liked New York. It was very profitable. There was a big Italian American population, bigger than anywhere else. They settled into New York because they were welcomed here.

The curse of New York is that there are still five powerful Mafia families here. In the rest of the country it wasn't that hard to combat the Mafia – you just had to knock off one family and there would be no one around to fill their shoes. Here, if there is a devastating blow to one family, that vacuum can be filled by one of the others. They know if it's a good opportunity, and they'll take advantage of it.

PHILIP ANGELL: In New York City organized crime families were involved in a lot of very public rackets – the trash business, the construction business, the ready-mix concrete business. These were pretty open secrets for a long time. Do you have any sense of why this was tolerated by the political, financial, and law enforcement establishment?

SELWYN RAAB: Well, one major reason was that J. Edgar Hoover didn't want the FBI to do anything with the mob. They didn't do anything until after his death in 1972.

I started as a reporter in New York in the 1960s on the education beat. I was working for a year when there was a big scandal: schools were falling apart. I was assigned to the story and found so many connections. There were secret Mafia partners to all these construction firms that were allowing ceilings to collapse, and building shoddy buildings. There was a big investigation, and eventually the city got rid of some of the people who worked for the Board of Education and banned some of the contractors. But they never went after the Mafia.

So I started asking around: Why don't you do anything about the Mafia? "It's too hard," I was told. But the real reason was that the Mafia was paying off the politicians and the judges. Every stone you turned up in this town had to do with the Mafia. Garbage, the fish market, you name it.

Also, when you talked to mayors off the record they'd say: 'everything runs smoothly now. If you fool around with the construction industry, there will be a strike. If you do anything about trying to regulate the garbage industry, they won't pick up the garbage. If you try to do anything about the fish market, restaurants won't get any fish. Leave well enough alone. They're not bothering anybody.'

GOTHAM GAZETTE: Can you point to any industries that the Mafia ruined or ran out of town?

SELWYN RAAB: I used to speak to people in the garment center, and they said you had a choice: either you get protection from the mob, or you sign up with the union and pay the union dues. The union will let you be non-union, but you have to be hooked up with some family. In fact, the corrupt unions were getting part of the payoffs.

There were mob families running all the trucking in the garment center – the Colombos and the Luccheses. You couldn't be an independent trucker and go into the garment center. You'd have flat tires, and your drivers would be beaten up. These weren't the only reasons – there were runaway industries for cheaper labor elsewhere, too– but they added an extra inducement. Why bother?

It wasn't just the garment industry. Garbage haulers wouldn't come into New York because they knew it wasn't worth the effort. If you came in you'd be shaken down, and if you didn't pay them off there would be a strike, because they controlled the Teamsters on the garbage locals.

A lot of fish wholesalers wouldn't come into New York for many years. They would rather go to New England, or the big fish markets in Baltimore, where they wouldn't have this trouble.

PHILIP ANGELL: And the important thing to remember is that it was underwritten by violence, no matter what industry.

ROMANTICIZING THE MOB

GOTHAM GAZETTE: Why do people have such a romantic view of this?

SELWYN RAAB: Well, that's Hollywood. American entertainers have always had a vicarious love affair with criminals. They're interesting people; you're more interested in rogues than good guys. Do you want to do a story about the founder of the Red Cross or Salvation Army? No one is too interested in that.

One of my pet peeves is a movie like the Godfather, where we set up the idea that there are good Mafiosi and bad Mafiosi. Don Vito Corleone, played by Marlon Brando, he's a white hat, a good guy cowboy. At one point, he's opposed to narcotics, and as a result there's an attempt on his life by the bad Mafiosi. But who wins? The good guys.

They try to create this image that it's not so simple, that you can identify with them.

I don't watch the Sopranos every week, but when I do watch what I see is a soap opera not about a mob family, but a dysfunctional suburban family. If you're a middle-aged man, you can easily identify with Tony Soprano. His kids are rebelling against him, his wife is smarter than him and wants to leave him, he doesn't have the old time loyalty when he goes to the office anymore. He has all these midlife crises, even though he lives in a mini mansion, has a harem of beauties throwing themselves at him, and he's got big cars and all the money in the world. Yet he's got these crises; you can sympathize with him. You don’t see him for the most part killing people.

You get a vicarious kick out of watching these people. Look at the great lives they lead: they sleep late, they don't have to go to work, they make a lot of money, they have a lot of woman friends. It looks good.

There's one other aspect which I think is a subtext to all of this, which makes these movies popular and is why people romanticize the Mafia: they're antiestablishment. In the Godfather, they talk about how the Italian Americans couldn't get a break. They had to become a government onto themselves, because the WASP establishment wouldn't allow them to become bankers or big businessmen. You can see it also in the Sopranos. His father was a laborer. What a choice: drive a truck for a living, or could he work for the mob and make a lot of money, be comfortable, take care of your family?

GOTHAM GAZETTE: But how much of that is true?

SELWYN RAAB: Well, I've talked to a few made men. They always rationalized what they did and why they did it. But they have always been into anything that will bring them money.

 

Mayor's Summit On Illegal Guns


What is a city to do? There are illegal guns on the street that are being used to commit violent crimes, so as a city you do what you can on your own:

  • step up enforcement of gun possession laws
  • intercept illegal sales
  • lobby for tougher laws and stiffer penalties in the state legislature
  • and even try suing gun manufacturers and dealers for negligent marketing techniques.

But most of the guns -- reportedly 92 percent of those recovered between 1988 and 2003 -- are from out of state. So no matter how many guns you take off the street here, more keep coming. Other states have lax gun laws, so it is easy for people to buy guns there and bring them to your city, and your laws have no effect outside of your borders. And the people that are supposed to intervene when there are problems across state lines in a federal system -- Congress and the rest of the national government -- do nothing; indeed they are trying to prevent you from obtaining the information about where the guns are coming from .

So what's a city to do? If you are New York City, you call together mayors from 15 cities from around the country at Gracie Mansion. On April 25th, Mayor Michael Bloomberg and co-host Mayor Thomas Menino of Boston, played host to what was dubbed the Mayor’s Summit on Illegal Guns. Half photo op, half strategy session, the meeting concluded with the attendees signing a "statement of principles" (in .pdf format) which called for increased punishment of illegal gun possession and trafficking, action against gun dealers who allow so-called “straw purchases” (the use of a third party to buy guns), and resistance to federal efforts to limit the cities’ access to gun trace information.

While it is true that shootings are down in New York so far this year, in many ways Bloomberg has staked his second term on making tangible progress in his campaign against illegal guns. He made the issue a central plank in his State of the City address, traveled to Washington to testify before Congress, and now has attempted to put together a broad coalition of local politicians from across the country. If nothing else, the effort has made Bloomberg a nationally-recognized name.

Positive Reaction, But Fruitful Follow-up?

The reaction in the local press has been positive. The Journal News (Westchester) issued "cheers for leaders demanding action”. The Post made light of the fact that Bloomberg declined a request from the National Shooting Sports Foundation to speak at the meeting.

Of course, the important question is whether the mayor’s coalition-building will do any good. Barring a major change in this fall’s federal elections (not out of the question, but certainly not a sure thing either), Congress is unlikely to take any action to tighten federal gun laws. And given recent attempts to restrict access of local governments to gun trace data, New Yorkers might be forgiven for believing that Congress wishes them ill.

Congress aside, there are two ways that the “Mayor’s Summit” could prove fruitful. Politically, the city can only benefit from attempts to reframe the debate over guns and from the creation of a broad network of like-minded mayors. The group of 15 that attended the meeting at Gracie Mansion included the mayors of such cities as Milwaukee, Jackson, Mississippi, Dallas, and Tulsa. A quick look at the press reports of the summit and the obligatory “balance” quotes from the National Rifle Association give a hint as to the anti-Bloomberg talking points: The mayor is an elitist with an elitist plan, out to get law-abiding gun owners. To the extent that the coalition grows to include more politicians from cities like Jackson, Dallas, and Tulsa -- hardly bastions of northeast-style liberalism -- the group’s ideas may have more currency.

Practically, if this group proves to be more than a one-time photo opportunity, and can expand to include a broader network of cities, there are real opportunities for mutual assistance. Bloomberg has made much of his fondness for technology and information sharing, not only in public safety initiatives but throughout city government. Figuring out a way to share information about gun trafficking and related problems with cities across the country can only benefit New York’s efforts (and everyone else’s as well). Sometimes when Congress refuses to act, the people affected on the local level just need to get creative.

Court Victory

As if on cue, the same week of the Mayor’s Summit, a federal judge in Brooklyn handed the city another victory in its lawsuit against gun manufacturers and dealers . Judge Jack Weinstein, a Lyndon Johnson appointee who is a Senior Judge in the Eastern District of New York, again allowed the city’s suit to go forward, despite apparent federal law to the contrary. Last year, Weinstein held that the suit could continue, despite the passage of a law prohibiting such suits (that decision is currently pending on appeal in the Second Circuit). And now Judge Weinstein has held that Congress’ recent attempts to restrict the use of gun trace data by local governments do not apply to the New York case, because the city had possession of the information prior to the passage of the law. It is unclear whether Judge Weinstein’s decision will hold up on appeal, but for now at least the city’s lawsuit is still alive.

David Dean, a student at New York University School of Law, worked as a policy analyst in the Mayor's Office of the Criminal Justice Coordinator. 

 

Injured, Undocumented – And Legally Protected


Gorgonio Balbuena, who was born in Mexico, said he was injured when he fell from a ramp while pushing a wheelbarrow on a construction site in the city. Satnislaw Majlinger, who was born in Poland, said he too was injured when he fell while working on a different construction site in the city.

Both said their injuries are severe. Both sued, claiming labor law violations.

And neither had legal standing to work, or even live, in the United States.

Two different state appellate courts — one in Manhattan, one in Brooklyn — delivered two contradictory rulings on their rights to sue for lost wages.

The Appellate Division covering Manhattan and the Bronx reached the conclusion that damages such an injured worker can claim are limited to "the wages [he] would have been able to earn in his home country." But the Appellate Division that hears cases from the city's other boroughs, as well as Long Island and Westchester, reached a contrary result - - concluding that all workers, regardless of immigration status, are protected by the laws of this state.

The highest court in New York State, the New York Court of Appeals in Albany, has now resolved these contradictory decisions by upholding the one from Brooklyn. The court declared that construction workers injured on the job can seek damages for past and future loss of employment and income, even if they are "aliens," immigrants with no documents allowing them to work in this country.

Judge Victoria A. Graffeo of the state's highest court, wrote the combined opinion in Gorgonio Balbuena v. IDR Realty and Stanislaw Majlinger v. Cassino Contracting Corp., holding that both Balbuena and Majlinger could sue for lost wages.

The Manhattan judges were wrong, the Albany judges decided, to rule on the basis of a federal case known as Hoffman Plastics v. Natoinal Labor Relations Board, because the immigrant worker's conduct in the Hoffman case was unlawful (he used fraudulent documents to get hired). But, while both Gorgonio Balbuena and Stanislaw Majlinger were in the United States illegally, their conduct on the job was not illegal. Since it is illegal for an employer to hire employees without verifying authorization to work in this country, it is the employer who acts unlawfully by hiring an undocumented worker. No crime is committed by an "unauthorized alien" employee who takes the job, unless fraudulent documents were used, which neither Balbuena nor Majlinger did.

Ultimately, Judge Graffeo wrote, "the question is whether an award of past and future wages to an undocumented alien worker undermines the objectives of federal immigration law."

While defendants claimed that permitting an undocumented alien to recover lost wages is "in contravention of the purposes and objectives of federal immigration law, condones past transgressions and encourages future violations," plaintiffs, joined by Attorney General Elliot Spitzer, argued to the contrary. The plaintiffs' position was that an undocumented alien should be allowed to recover for monies lost as a result of defendants' failure to adhere to the work place safety requirements. They also argued that precluding lost wages would make it more financially attractive for noncompliant employers to hire illegal aliens, thereby undercutting the central goal of the federal act, and providing less of an incentive for employers to meet state labor requirements regulating occupational health and safety.

"It was the New York legislature's intent to achieve the purpose of protecting workers by placing 'ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor,' instead of on workers, who are scarcely in a position to protect themselves from accident," the Court held. "The Labor Law," the opinion said, "applies to all workers in qualifying employment situations - - regardless of immigration status - - and nothing . . . negates the universal applicability of this principle."

According to the 25 page opinion, "limiting a lost wages claim by an injured undocumented alien would lessen an employer's incentive to comply with the Labor Law and supply all of its workers the safe workplace that the Legislature demands.

"An absolute bar to recovery of lost wages by an undocumented worker would lessen the unscrupulous employer's potential liability to its alien workers and make it more financially attractive to hire undocumented aliens." The majority opinion, from which two judges dissented, said, "illegal aliens are willing to work in jobs that are more dangerous and undesirable - - and for less money - - than their legal immigrant and citizen counterparts, [and] would actually increase employment levels of undocumented aliens, not decrease it as Congress sought."

The cases can now proceed to trial where evidence may be introduced by an undocumented alien, about work history and prospects, just as in any other personal injury case. But the jury would be entitled to hear about the likelihood of future earnings in this country, including immigration status.

Eventually the issue might reach the Supreme Court of the United States which would be faced with New York's conclusion that "an undocumented alien performing construction work is not an outlaw engaged in illegal activity."

Emily Jane Goodman is a New York State Supreme Court Justice

Related Article

Immigrant Construction Workers  

Rockefeller Drug Laws: An Ex-Prisoners View




Photo: 15yearstolife.com

Anthony Papa with self-portrait,

Little over thirty years ago Governor Nelson Rockefeller and the New York State legislature created the toughest drug laws in the nation. Their aim was to curb the drug epidemic, capture drug kingpins and create harsh drug laws that would combat drug use and selling. In reality this did not occur. Instead these laws have filled our prisons with non violent drug offenders, primarily from NYC neighborhoods. Over 94 percent of those incarcerated are black and Latino. Over 80 percent of New Yorkers agree that these laws are not effective and there is a need to created meaningful reform. In 2002 for the first time in history the governor of New York and legislative leaders called for reform.

In 2004 and 2005 following that call, the New York Stare Legislature imposed changes in the Rockefeller Drug Laws. These reforms were meant to allow current drug offenders who have already served long sentences to apply for reduced sentences. They also lowered drug sentences and expanded prison-based drug treatment. These minor reforms, in theory, would affect about 1000 drug war prisoners eligible for resentencing under the Drug Law Reform Act (DRLA).

I served 12 years of a 15 to life sentence for a non-violent drug offense after passing an envelope to undercover officers containing 4 ounces of cocaine in exchange for 500 dollars. I made the biggest mistake of my life just like many others who are serving hard time. In 1997 I was granted clemency by Governor Pataki, who recognized the injustice of my sentence. Most of the people I left behind were serving long sentences for non-violent drug offenses. I then became an activist who has fought tooth and nail for meaningful reform and was very disappointed to see that very little was done in the minor changes made in 2004 and 2005.

While these changes were a first small step, much more needs to be done, like addressing the issue of the 4,800 B-felons who make up the largest group of drug prisoners. Currently selling small quantities of drugs can land you a sentence up to nine years for a first offense, equal to a B-level crime such as rape or armed robbery.

But almost more upsetting than the lack of changes has been the response made by the prosecutors of New York, who often distort the facts associated with these reforms. The most outspoken opponents of these laws have continuously put out a "war cry" to the media and the public about the dangers of revising these laws and how the gateways of hell would be open if the laws were changed. If you look through their hype you will discover the underlying reasoning behind their stance. Prosecutors live and die by their rates of conviction. This is the bottom line.

With activists inching closer to meaningful reform comes the reality that prosecutors would eventually lose their omnipotent power in drug law cases. As it stands with the new reforms they maintained this power. They still control the outcome of a drug case from its beginning.

While the prosecutors point to a handful of people who are undeserving of relief under the new reforms, the vast majority are non-violent offenders who deserve a chance to reenter society and be treated with compassion. Just like when NYC District Attorney Bob Morgenthau showed compassion recently for the NYU "Pot Princess" Julia Diaco who was sentenced to treatment and 5 years probation instead of a 25 year sentence for 8 separate felony sales. And before her , Governor Pataki's former Rockefeller Drug Law spokesperson who was busted for buying crack cocaine and sentenced to a 250-dollar fine and treatment.. We have to think about the concept of redemption and compassion for all. People can change their lives. I know this for a fact.

According to Drug Policy Alliance, a leading policy group in NYC, 70 percent of the 1,000 prisoners that were eligible for relief under the new reforms are still in prison.

One of the most significant reasons for this is that prosecutors almost always argue for the maximum sentence, ignoring the records of rehabilitation and relying on old facts that were maintained many years earlier. One of the most controversial points of Rockefeller reform is judicial discretion. Under the current laws, judges have little power to place offenders in treatment. The power is maintained by the prosecutors, who also decide what charges are appropriate. Advocates for reform argue how could justice be served by allowing the one party who measures success by their conviction rates? Discretion should be available to the presiding judge, who is the only objective person in the case.

It may be true that inner city neighborhoods are devastated by drug use. However, this is not the only root cause for this. Lack of opportunity, unemployment and education are also contributing factors. One of the most significant factors is also the lack of drug treatment. Under the new reforms the State legislature did not fund community based treatment, which has been found to be the most cost effective way to reduce drug use.

While in prison, I became a jailhouse lawyer and litigated dozens of drug cases and never once came across a "drug kingpin". Most of these prisoners were non-violent drug users that needed treatment. However, treatment was not available in prison then, and it is not available now.

We need to create laws that will protect the community and at the same time be fair and just. The Rockefeller Drug Laws in many ways have become crueler than the crimes that are committed. They go beyond the individuals that committee crimes. They destroy their families and put a financial burden on tax payers that foot the bill for an ancient and proven ineffective approach to the drug problem. The drug war has fueled the prison industrial complex. Since 1982, 33 prisons have been built in rural Republican upstate communities. They have become a source of revenue for upstate politicians that have discovered a cash cow. Instead of filling our prisons with non-violent drug offenders we should concentrate on alternatives like drug treatment and the creation of jobs and education for the communities of color which is affected the most in the efforts to lock our way out of the drug problem. Only then will we be able to solve the drug war problem in New York.

Anthony Papa is the author of 15 To Life: How I Painted My Way to Freedom

 

The Rockefeller Drug Laws: A Prosecutor's Perspective


In presenting their case for past and future revisions to New York’s Rockefeller drug laws, supporters of the changes contend that revising the law would benefit non-violent, first-time drug offenders and low-level criminals, not drug kingpins or violent career criminals. After more than a year’s experience implementing the drug law revisions of 2004, however, that is not what has happened. While some low-level drug offenders have benefited from the revisions, sanctions against numerous violent career criminals and high-level narcotics traffickers also have been significantly reduced. I fear that further changes now under consideration may well make the situation worse and may again put at risk neighborhoods once devastated by drugs that have been rescued.

I have been New York City’s Special Narcotics Prosecutor since 1998, but I have been a practicing prosecutor since 1983. I was handling homicide cases during the 1980s and the 1990s, when the crack epidemic was at its height. And I saw case after case of young people dying over crack.

They were dying because people who killed them were high. They were dying because people were fighting over a spot to sell drugs. In the 1980s, parts of this city were nearly destroyed by crack. In the 1970s, heroin had done the same thing in too many neighborhoods.

The Rockefeller drug laws were enacted in 1973 during that heroin epidemic because people were tired of seeing young people dying and so many other lives destroyed because of drugs. The laws set penalties of 15 years to life for some drug offenses and limited the amount of discretion judges had in setting sentences. Around this time, the Office of Special Narcotics was set up to address the problem of narcotics trafficking in New York City. Today, we handle about 4,000 felony narcotics cases every year. When I say, "felony," I don't mean user amounts. Mostly it's selling drugs. And when I say, "narcotics," I mean cocaine and heroin. Marijuana is not a narcotic drug.

TREATMENT AND PUNISHMENT

While critics say the laws do not focus enough on treatment, the Office of Special Narcotics has been a staunch advocate of drug treatment. Along with the Brooklyn district attorney’s office, we pioneered alternatives to incarceration in the late 1980s, because we saw no point in jailing people who sell drugs to support their own habit. But experience in this area has taught us that a person’s fear of going to prison is a way to motivate them to get into treatment. Some of our drug defendants have said that the day they got arrested was the best day of their lives, because the only thing they wanted to do less than stop using drugs was go to prison. When they faced the threat of state prison, they were finally able to turn their lives around.

But treatment programs alone are not going to solve the problem, because the majority of drug dealers are not addicted. Most people sell drugs because it's fast money. They don't have great educations. They don't have great economic opportunities.

DRUGS AND VIOLENCE

And so they sell drugs, causing further devastation in their neighborhoods. Things have improved a great deal in New York City. But we still get calls from people who say, “There's drug dealing going on, on my doorstep. I don't want my kid walking past it.” And communities across the city tell me, "Get those drug dealers off my street corner, lock them up and do it now."

This is understandable. Narcotics go hand-in-hand with violence. They go hand-in-hand with other crime. So, when we have a narcotics problem, we have a crime problem. And not just the crime of drug selling.

We have used narcotics enforcement as a tool to bring the crime rate down in this city and to address violent crime in the drug-plagued areas of the city. We need to make sure that, whatever changes we make in the state’s drug laws, we can continue to do that.

LIGHTER SENTENCES

The first set of Rockefeller drug law revisions was enacted in 2004 and became effective in January 2005. It was an overall revamping of the drug statutes.

Before the changes, possessing four ounces or more of a narcotic drug, meaning cocaine or heroin -- or selling two or more ounces -- was an A-1 felony in New York State. Four ounces may sound like nothing. But you can get at least 4,000 glassines or vials out of four ounces of coke or heroin. You don't see users with that amount.

The 2004 Drug Law Revision raised the amount needed for a possession offense from four ounces to eight ounces of cocaine or heroin. Selling two ounces remains an A-1 felony. The legislature did not change that.

But it did reduce sentences so that a person convicted for the first time of a top narcotics offense -- possessing a half a pound of coke or heroin or selling two ounces -- faces between eight and 20 years (Before they faced 15 years to life).

The revision also decreased prison time for all narcotic offenders and provided for re-sentencing of people already in prison. The measures were intended to help nonviolent drug offenders and low-level drug offenders, and some did benefit. But kingpins and major traffickers were the ones who received a windfall.

By November 2005, approximately 270 prisoners were re-sentenced statewide. The Office of Special Narcotics handled about 31 percent of those cases. In about 10 cases, we consented to having them serve the minimum. Fifteen years to life was too heavy for their crime. So good things did come out of the revision.

But most people that the office handled either had been convicted or implicated in some kind of a violent crime or were a major trafficker or kingpin. Of the 81 who had applied for re-sentencing to our office, we had nine involved in homicides or serious assaults, which left the victims paralyzed. We had 23 kingpins, or major traffickers. One, whose sentence was cut to 11 years, already had a federal money laundering conviction and was a high-level member of an international ring responsible for importing thousands of pounds of cocaine and laundering millions of dollars.

And then, applying for sentence reduction, were the people who destroyed neighborhoods in the 1980s, who took over areas of Harlem or the Lower East Side, took over whole buildings and trafficked thousands of vials, thousands of glassines out of those buildings. The head of a Lower East Side cocaine organization, which had weekly sales of $15,000, saw his sentence cut by eight years. People like him make a lot of money, so you need to be able to impose a stiff jail sentence to let them know it isn't worth it.

Under the new statutes, the judges can impose a sentence of from eight years up to 20 years. Judges are guided by their own discretion in sentencing - with one exception: If a person has a prior felony conviction, the sentencing range is now 12 to 24 years if the previous felony was non-violent and15 to 30 for a violent prior felony. The old law made no distinction: The minimum sentence was 15 years to life for all, and the maximum 25 to life for all.

Many people who have gotten minimum sentences of eight years since the new law went into effect do not fit the description of the intended beneficiaries of the drug law changes. One woman who received the minimum had been convicted of coordinating the delivery of 322 pounds of cocaine.

THE NEXT ROUND OF REVISIONS

In 2005, the reforms went from bad to worse. The legislature extended re-sentencing to the next level down, to the A-2 offenders. Many of these people had plea bargained their cases. They were originally charged with the more severe A-1 offenses and then plead guilty to A-2 crimes to get a shorter jail sentence.

We offered them the plea because we had heard the message. Many New Yorkers thought too many people were getting 15 years to life. And often we agreed. The A-2 range of eight and a third years to life was adequate to punish most of these offenders.

But then the legislature passed A-2 re-sentencing, and they excluded from the change anyone who had received a minimum sentence. Only the most serious offenders or those who had prior convictions were eligible to be re-sentenced. So it seemed that the state government had done the opposite of what reform advocates intended. Rather than helping low-level offenders, the people eligible for re-sentencing included one who was found with 70 pounds of cocaine and a loaded 45 caliber gun, and another with 715 pounds of cocaine.

Now, there is talk about changing the sentencing structure for the next level still, B felony offenses. And quite frankly, I fear what this could do.

Most of the defendants we prosecute for B-level felony offenses are selling drugs. Of the approximately 2,500 we prosecuted during a year, only 315 received a sentence of more than a year in jail. Of those we sent to state prison, 89 percent had prior felony convictions. Only 36 were first-time felony offenders. And we sent twice as many first-time felony offenders to treatment as to state prison.

But this is a critical statute for prosecuting the people who ruin neighborhoods. If you are going to make some money selling $5 vials of crack, you have to sell a lot of them. And, for the people living next door, it’s a huge problem, destroying the quality of their life.

Now the people selling that crack should not go to jail for the rest of their lives. But we need to take them out of the community long enough for the neighborhood to come back up again.

JUDGES AND SENTENCES

The other push is for expanded judicial discretion. This creates problems. If judges can do anything they think is appropriate, there are going to be inconsistent sentences because judges have different perspectives. And widely varying sentences can decrease confidence in the legal system. It makes people think that the system is unfair.

That is what happened in the 1970s, when judges were allowed complete discretion and so could sentence people to whatever they wanted. At that time, the New York Times ran a series of articles on this issue. They found that the problem of sentence disparity – different sentences -- increased as judges had more discretion. The chief judge in New York State, the head of the Court of Appeals, said then that it “might be desirable” to take sentencing away from judges entirely and turn it over to some other agency.

We do not want to return to the days when many called sentencing in New York State “chaotic.” I think we want the legislature to take the responsibility, set a sentencing range, and then let the judges determine within that range what sentence is appropriate.

Fighting drugs -- and developing laws that can do that and at the same time protect neighborhoods -- is a tough, tough issue on which people feel passionately. We cannot incarcerate our way out of the drug problem. People need a good reason not to do drugs. They need other choices. I wish we had a good way to provide that. But minimizing consequences for drug dealers is not the answer. Drug crime begets violent crime and for the present, incarceration is the most effective tool to reduce that violence.

Bridget Brennan has been New York City’s Special Narcotics Prosecutor sine 1998.

 

Terror, Not Terrorism


New Yorkers’ feeling of safety, gradually regained, may have taken a few steps backward. Our uneasiness is not due to a resurgence in crime. While it is true, as the New York Sun reports, that the number of major crimes so far this year, including homicide, is up compared to the same period in 2005 -- a trend that is confirmed by the most recent publicly available New York Police Department statistics (in pdf format) -- it is too early to draw any conclusions from those numbers. The numbers can easily be skewed this early in the year by anomalous spikes in crime, and the period to which the present is being compared -- the beginning of 2005 -- featured unusually low incidence of crime.

False Alarms

New Yorkers have been reminded that no matter how low crime rates drop, or how much safer New York is than places like Columbus, Ohio, there lurks a palpable anxiety about the threat of terrorism.

Over the Presidents Day weekend, an unknown thief broke into the car of a Department of Environmental Protection employee and stole a laptop computer containing maps of the city’s water distribution system . Officials initially worried that the maps might fall into the wrong hands and compromise the security of the system; worries about terrorism reportedly were enough to get the police department’s Intelligence Division involved in the investigation. By the middle of the week, however, officials seemed comfortable to say that the theft was not terror-related, but rather a run-of-the-mill car break-in.

Then on February 22nd, city officials announced that a West Village man was being treated for a case of inhalation anthrax . The news of a case of anthrax in New York, combined with the images of first responders in biohazard suits was enough to evoke vivid memories of the fall of 2001, when several media outlets received letters laced with anthrax spores and put the city on edge for weeks. As in the situation with the stolen water system maps, officials acted quickly and decisively. Mayor Bloomberg held a press conference on the afternoon of the 22nd (see video of it), flanked by Police Commissioner Ray Kelly and city health officials, to deliver the news and to reassure the city that there was no evidence of terrorism. Officials believe that the infected man, Vado Diomande, a dance choreographer originally from the Ivory Coast, contracted the disease from naturally occurring anthrax spores on several hides he had brought over from Africa for the purpose of making drums. As of this writing, Diomande remained hospitalized undergoing treatment, and no other cases of anthrax have been reported.

Port Problem Reveals Vulnerability

In both of these cases, New Yorkers were able to rely on their own first responders and administrative officials. A Daily News editorial. "City Passes Anthrax Test",—summed up the general mood. The editorial praised city officials for being upfront with the public, and noted that "it was nice also to be reassured that the emergency response system was on the case, up to speed and in command." So too have the city’s first responders seemed up to the task in other situations where the risk of terrorism seems acute: the visible police presence at landmarks, increased arrests on the city’s bridges and tunnels (700 percent, the Post reports, since the September 11th attacks) and, agree with it or not, the policy of conducting random baggage searches of subway passengers in the wake of last summer’s bombings in London. New Yorkers might almost have been forgiven for having entertained dreams of self-reliance when it comes to security measures.

Yet the story of the debate over the control of New York Harbor abruptly woke us up. The federal government, with a minimum of publicity (“Congress probably should have been briefed on this matter sooner,” said the president’s press secretary) and lack of adherence to procedural niceties (a mandatory investigation period was apparently skipped), approved the sale of port operations at six major U.S. ports, from P & O Ports North America, a British company, to Dubai Ports World, a company owned and operated by the government of Dubai (part of the United Arab Emirates). Port Newark, and the New York Cruise Terminal on the West Side are two of the ports that would be affected. Critics immediately raised terror-related concerns, citing security lapses in the company’s port in Dubai, as well as the UAE’s past terrorist ties. The reaction from politicians inside and outside of New York -- including Senators Hillary Clinton and Charles Schumer, Governor George Pataki, Mayor Michael Bloomberg, Representative Peter King (chairman of the House Homeland Security Committee, among others -- was swift and uniformly critical. All of the city’s major papers issued blistering editorials (“Dubya Jeopardy” said the Post; “Strangers at the Door” warned an Op-Ed in the Times ; “Anybody home?” asked the Daily News ). On the 24th, the Port Authority moved to block the sale in court.

Of course, as some have pointed out, Customs and Coast Guard officials would still be responsible for security at the ports, and the Dubai company would inherit the current workforce at the port, which is mainly American. Without specific complaints about security lapses, the overheated reaction can’t help but seem a bit xenophobic.

The real problem exposed by the port scandal is not that an Arab company is going to operate several American port facilities. In a way, this is almost beside the point. Rather, the problem for New York City is two-fold.

First, frighteningly little has been done since September 11th to secure port facilities in light of terrorist threats. Few dispute that the ports are a weakness in the world of homeland security, and experts estimate that only between four and six percent of shipping containers at major ports are inspected.

Second, the debate over Dubai Ports World has brought into sharp relief just how dependent New York City is on federal homeland security efforts. While the city depends on information and money from the feds, the visible manifestation of homeland security in New York City is the police department, the fire department, and other first responders. But no matter what those agencies do, New Yorkers are still dependent on Washington for much more than homeland security money. Given the performance of the Department of Homeland Security in responding to Hurricane Katrina, and the way it has bumbled through the process of approving the port sale, New Yorkers would be right to have their confidence shaken. But those failures also underscore the need for local elected officials to do more than lobby for money. Highlighting the stupidity of giving homeland security money to the Virgin Islands is well and good, but it should not be at the expense of trying to shape larger-scale homeland security policy.

David Dean, a student at New York University School of Law, worked as a policy analyst in the Mayor's Office of the Criminal Justice Coordinator. 

The State Of the City's Crimefighting


Fresh off his decisive victory in November’s election, a victory made possible in part because of his record on public safety, Mayor Michael Bloomberg set out what he called “A Blueprint for New York City’s Future” in his State of the City address on January 26th.

To an outside observer, it may have seemed strange that, in addition to ambitious pronouncements about tackling poverty, creating new jobs, rebuilding the World Trade Center site, and reforming the Administration for Children’s Services in the wake of the killing of seven-year-old Nixzmary Brown, the mayor reserved a considerable portion of his speech to new crime-fighting proposals. Yet recent events have forced public safety issues back into the consciousness of New Yorkers.

New Public Safety Proposals

Of course, Bloomberg made sure to mention the continuing drop in crime numbers. Through December 18th (as of this writing, the date of the most recent numbers available online), the number of major crimes had dropped 12 percent over the same period in 2004. Furthermore, according to the mayor, crime has dropped by 20 percent since he was elected in 2001.

To Bloomberg’s credit, he made a number of concrete proposals to fight crime over the next year, a refreshing change from the lack of policy detail laid out during his campaign.

The mayor announced that the police department would expand Operation Trident, an initiative introduced last year that split up troublesome precincts and sent in additional police officers. Though the name may be lacking in originality (the Metropolitan Police Service in London began their own Operation Trident in 1998 to tackle gun violence), the policy itself seems to have been a success.

In East New York’s 75th Precinct, a Trident target in 2005, crime fell by 12 percent. While the incidence of homicide was unchanged over 2004, East New York saw large drops in rape (though, as the Village Voice pointed out,rape numbers are notoriously difficult to assess), robbery and burglary.

Following on the success of Operation Trident in the 75th Precinct, Bloomberg said that the initiative would be expanded to two precincts in the South Bronx—the 44th precinct and the 46th precinct.

Bloomberg also called upon the state legislature to pass a law requiring the collection of DNA samples in all criminal convictions. The mayor called the proposed law “the single best way to catch offenders before they become serial offenders, as well as to exonerate the innocent.” In light of the opposition such proposals have received in the past from civil liberties groups, who argue that extensive DNA collection is an invasion of privacy, passing such a law surely will not be easy, especially if Bloomberg insists on including convictions for misdemeanors. It also takes quite a faith in the “broken windows” theory to believe that your average turnstile jumper or shoplifter is likely to turn into a murderer or rapist. Add to that the sheer number of misdemeanors that flow through the city’s criminal justice system every year -- a report by the New York Criminal Justice Agency found more than 176,000 of them in 1998, and there is no reason to suggest that there are fewer today -—administering such a DNA collection system would take substantial resources.

Fighting Gun Violence –- Ideas New and Old

Bloomberg’s top public safety priority in the coming year, however, is fighting gun violence, and keeping illegal guns off the street. This should come as no surprise, as it has been the mayor’s focus since two police officers were killed at the end of 2005. In his State of the City speech, Bloomberg vowed to “marshal all of our resources and work with all of our partners in public service -- whether they are across the rotunda in City Hall, up in Albany, or in big cities across the nation -- both to root out and punish these criminals and to stop the flow of illegal guns into our city.”

The mayor outlined several proposals to achieve this goal, some old, and some new. One was filing new lawsuits against the dealers responsible for selling the guns that end up being used in crimes; experts suggest that about 60 percent of the guns used across the country to commit crimes come from just one percent of gun dealers. Another idea that had been suggested before was to work with elected officials across the country to toughen gun control laws and improve enforcement (“Mike gunnin’ for NRA” was the headline in the Daily News when the mayor first suggested such a plan, in an article that also wondered whether Bloomberg would use some of his own money to campaign against illegal guns.)

Among the new proposals was a commitment to debrief felony gun defendants after they are arrested (to gain intelligence on the illegal gun market), a plan to use new video technology to track the source of gun shots, and a collaborative effort to flag the cases of gun offenders when they are arrested for other crimes. Bloomberg also proposed two new pieces of legislation: a new registration program for individuals convicted of gun crimes -- a “Megan’s law for gun criminals” in the words of the mayor -- and a mandatory minimum sentence of three and a half years for anyone convicted of criminally possessing a loaded gun.

New Gun Laws Get Their First Test

It is hard to imagine that the members of the state legislature who passed the Crimes Against Police Law in December in the wake of two police shootings could have dreamed of a better poster boy for the law than 25-year old Damian Henry. Henry -- a “cop-hating thug” in the Post’s estimation -- has been charged under the new law with first degree attempted murder after firing an Uzi at two police officers outside an East Flatbush club that he was allegedly about to rob. Police also say that, in a coincidence Charles Dickens would be proud of, Henry was arrested last summer for firing at a correction officer with the same gun that was later used to shoot Officer Dillon Stewart.

Nixzmary’s Law?

The tragic death of Nixzmary Brown has had ramifications for the city’s child services system that will be felt for years. Now Brooklyn District Attorney Charles Hynes wants life without parole for similar crimes. Nixzmary’s stepfather, the accused killer, is charged with second degree murder, which carries a maximum penalty of 25 years to life. Bills have been introduced in both the state senate and assembly to change the law.

David Dean, a student at New York University School of Law, worked as a policy analyst in the Mayor's Office of the Criminal Justice Coordinator. 

Housing Court: Should Tenants Have A Guaranteed Right To Counsel?


As long as there have been landlord and tenant disputes - - which is as long as there have been landlords and tenants - - there has been an imbalance: Some people own the housing that other people need for shelter. And, at least since 1972, with the creation of the Housing Court within New York City Civil Court, there has been another dramatic imbalance. Landlords have attorneys, and tenants don’t.

Much has been said and written about this. Little has been done.

The New York County Lawyers' Association held a conference in 2004 to analyze the issues facing housing court. A report (in pdf format) of conference findings and recommendations was recently issued.

The report points to the gap in representation in the 350,000 residential cases that are filed every year: "11.9 percent of tenants in New York City Housing Court were represented by an attorney and 97.6 percent of landlords were represented by an attorney. As grim as these figures are, they likely understate the percentage of low-income tenants who are unrepresented..."

With self-represented (called pro se) tenants filling the courtrooms and hallways of the boroughs' Housing Courts, it is a scene one law professor described as a "largely one-sided eviction apparatus." Others have called it Kafkaesque, or as acrimonious as a bad marriage.

Federal and state courts, including New York's Court of Appeals, have distinguished between civil and criminal cases, holding that all persons accused of crimes, facing possible loss of liberty, are entitled to free legal representation. But there has never been a similar right in civil cases. Of course, those able to retain and pay their own counsel have always been able to do so, both in civil and criminal proceedings. But the issue that has never been resolved is, who provides the lawyers for the vast majority of Housing Court litigants who lack the funds to pay their own lawyers?

Tenants are severely and dangerously under represented by lawyers. The lack of representation deprives them of a fair trial, due process, and access to courts, according to Andrew Scherer, an expert in residential landlord-tenant law who is head of Legal Services for New York, which represents indigent clients in civil actions. Scherer believes it violates the federal and state constitutions as well as civil rights laws, and argues that there is only one solution - - to recognize a guaranteed right to counsel. But the right to counsel cannot be merely theoretical. It means that as in criminal cases, government must supply and pay for lawyers, for those who cannot afford to pay fees, and they must be lawyers who are knowledgeable in the field.

Lawyer-less litigants are generally intimidated by the maze of housing court, a court that even many lawyers have difficulty figuring out. Some conference participants urged Housing Courts judges to be more protective of tenants, especially the most vulnerable, the disabled, the impaired, the aged. But Housing Court judges, like judges elsewhere, cannot become advocates for those appearing before them and can usually do little more than try to explain to the unrepresented tenant what he or she is facing at trial or in agreeing to in a settlement. The settlement is usually contained in a stipulation signed in the corridor, and often contains terms the tenant does not understand or could never comply with, particularly when up against a lawyer for the landlord. (Joe Lamport last month wrote about these hallway settlements in Gotham Gazette’s housing topic page.) In addition to judges being prohibited from giving legal advice, Housing Court judges are not elected, but appointed, and for only five year terms; they are acutely aware of the problems they could experience in their own careers. If they are seen as being "pro-tenant," they could risk not being reappointed.

With Legal Services, the Legal Aid Society and housing clinics facing strained budgets, cutbacks, overwhelming caseloads and severely overworked staffs, Scherer continues to press the position that anyone facing the loss of a home should not only be entitled to representation as a matter of fairness, but under law. The conference report calls Scherer's analysis "persuasive" and adopts his view. But neither the legislature nor the courts have ever been persuaded.

Nobody is counting on a tenant right to counsel anytime soon, even though stakes in Housing Court are high -- evictions...and more homelessness.

Emily Jane Goodman is a New York State Supreme Court Justice 



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