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Citizens Union

Public Safety

Closing of Subway Booths Raises Safety Concerns

token booth
Photo by BKabak

In the wake of judge Saliann Scarpulla's decision that the Metropolitan Transportation Authority could not fire 260 token booth clerks and close subway station booths, the agency continues to move ahead with its plan, saying it must enact these measures to close its $800 million budget gap.

On June 4, Scarpulla, a state Supreme Court justice, decided that the MTA had closed the 14 revenue booths and 42 station Customer Assistance booths and laid off workers illegally due to them not having public hearings prior to taking action. The ruling also called for the MTA to rehire the laid off workers and reopen the closed booths.

For the Transport Workers Union, Scarpulla's ruling is bittersweet, since the clerks remain out of work and the booths closed while the transit authority appeals.

"The battle is long from won and unfortunately, despite several court orders favorable to our position, the MTA is successfully using delaying tactics," said Jim Gannon, spokesman for Transport Workers Union 100, which represents subway workers.

The MTA insists that the layoffs are necessary. "These closures were necessitated by the MTA's dire financial situation, and the need for the savings they generate remains," the agency said in a statement.

Safety Under Ground

Critics of the move, however, contend the closings will make subways station more dangerous places. "What the MTA is doing is bad for everyone except the swipers, muggers and terrorists. Riders understand this," said Gannon. "They hate booth closings."

The MTA declined to answer questions concerning possible safety concerns.

Ann Francis, a 68 year-old passenger who attended a recent union rally outside MTA headquarters, believes that the transportation authority board does not recognize the potential safety concerns. Calling the situation "nerve racking," she said, board members "don't represent people who ride transit."

"We do not just sell metro cards, we save lives," said Balwant Jaswal, a laid-off station agent who recalled times when she has had to call the police for passengers who have been stuck in elevators, separated from their parents or even fallen on the tracks. "If I wasn't there, nobody would be there to call the cops," she said.

"We aid in arrests. We are an extension of the NYPD," said Maurice Jenkins, a TWU vice president with the station agents division.

City Councilmember Peter Vallone, who is chairman of the Public Safety Committee, concurred with the safety concerns. The police department, he said, does not have additional officers to assign to the transit system. "The police are down to 35,000 officers," he said.

In response to such concerns, the State Senate this week passed a bill that would bar the transportation authority from laying off any more token clerks or running subway trains without conductors for three years or until completion of a report on subway safety. While the authority opposed the measure, its sponsor, Sen. Martin Dilan said, " "I really don't want to micromanage the MTA, but sometimes public safety trumps everything."

The layoffs have had another unintended costs, according to the union. Overtime expenses have reportedly risen as the authority needs clerks to work extra hours to staff booths.

An agency spokesperson, Paul Fleuranges, told the Daily News that the agency was still coming out ahead. "While we are spending overtime to cover overnight and weekend shifts, that overtime is less than what we would have paid in regular pay plus benefits," he said.

The Next Moves

New York Public Authority Law 1205 states that no closing of a booth can take place except during renovation and/or during an emergency, unless a public hearing has been held. The Metropolitan Transportation Authority now reportedly expects to hold hearings this month.

According to the TWU, the MTA plans to hold a pro forma session and not rehire workers who have been laid off.

In its statement, the authority said it will appeal the judge's ruling as well as "proceeding on a parallel track with the public hearing process. … The MTA Board authorized the public hearing process to move this vital cost-saving initiative forward."

Vallone places much of the blame for the current situation on the state government. The state last year took about $140 million from the MTA and transferred it to the state's general fund.

"Albany took the money from the MTA. Stopped MTA funding," Vallone said.

Whoever they might blame, the station agents continue to fight for their jobs.

"Now I have to pay for a mortgage. It's very hard for me. I don’t know what to do," said Narinder Singh, who was a station agent for two years before being laid off on May 11. He said the workers were given only 12 hours' notice, something he likened to "a human rights violation."

Jenkins, a station agent himself for the past 29 years, described the day for his fellow workers as one of the worst in his life. People came to him in tears after being called to a city school and told to turn in their equipment and given a seven-day metro card.

"I keep thinking this is all a dream," said Jaswal.

Following Brutal Crime, Flushing Looks Out for Its Safety

Photo by Meg McCarron
A brutal rape and murder this spring has prompted some Flushing residents to wonder about the safety of their neighborhood.

Susan Ma does not like to go out at night in Flushing. In fact, she always tries to get home before dark or asks her husband or friends to drive or to walk with her.

She grew even more concerned after she saw the news about the recent rape and murder of Yu Yao, a 23-year-old Chinese woman, on 41st Road, just blocks away from her house on Main Street and Franklin Avenue.

"There are too many people here, too many different kinds of people," said Ma, a native of China who moved to Flushing two years ago. "Every woman has to be aware when they go out at night."

When Ma read about a free self-defense class in the Chinese-language Sing Tao Daily, a popular Chinese-language newspaper, she immediately signed up. The class was prompted by the brutal attack on Yao. The suspect is 28-year-old Carlos Salazar Cruz, a fish market worker who is charged with second-degree murder.

Many people in this primarily immigrant community were shocked by the violent attack because Flushing is generally considered a safe area. According to police statistics, there were three murders, 13 rapes and 276 robberies in areas covered by the 109th Precinct in 2009, while nearby Elmhurst and Corona had six murders, 32 rapes and 332 robberies. In the 115th Precinct, which covers East Elmhurst, North Corona and Jackson Heights, there were four murders, 24 rapes, and 435 robberies.

Although many saw Yao's murder as an isolated incident, the community has not taken it lightly. Several local martial artists and community groups have started offering free self-defense classes. A volunteer neighborhood watch group has been patrolling downtown Flushing and giving out whistles in the hopes of raising safety awareness and fostering a community spirit where residents will look out for one another -- and speak up.

A Good Defense

The self-defense classes, which began in late May, are taught by Simon Li of the Asian Cultural Federation and Wing Yu of the Wing Chun Ip Chun Academy. Each class meets for one hour per week and lasts four weeks. So far more than 30 people have signed up and two classes are in session.

"People were not so interested in learning self-defense before the murder," said Li, a martial artist and a native of Hong Kong who has been teaching martial arts in Flushing for 15 years. "After the newspapers did a report on us, our phone has been ringing off the hook."

The primary goal of the class, Li said, is to teach the students how to handle attacks s and escape. He said more classes will be offered by his fellow martial artists in other boroughs.

Many students in the class find it helpful.

"Since we women have no strength, we learned how to twist their arm and borrow their strength to push them away," said Annie Fung, a housewife in her 50s and a native of Hong Kong.

Jane Wu, 65, a native of Hong Kong and a longtime New York resident, travels from midtown Manhattan to attend the class. She remembers being robbed on the Lower East Side many years ago and was saddened by Yao’s death.

"If she had learned how to defend herself, maybe her life could have been spared,” said Wu.

On Patrol

The volunteer group, led by Michael Chu of the Council of Chinese-American Associations, officially kicked off the patrol on May 24. Every evening five or six members of the group are dispatched to patrol the residential neighborhood between Main Street and College Point Boulevard from 8 to 10 p.m.

Chu sees certain residents of the area as being particularly vulnerable. "Immigrants tend to be easy targets," he said. "They don't speak English well. They don't report to the police. They carry cash more often, and they are less resistant."

The 109th Precinct runs an auxiliary police program, but it requires fluency in reading and written English and permanent residency or citizenship, preventing many people in Flushing from joining.

"Many people in the community wanted to join the auxiliary police but they have language issues," said Chu, who hopes to work alongside the 109th Precinct.

Interest in community safety appears high. "So far we already have about 140 volunteers," said Chu, who has given out more than 500 whistles and is ordering additional 5,000 from China. "We are hoping to get at least 300 to 500 volunteers so this patrol will continue far beyond this tragedy."

Speaking Out

While Yao's murder might have been an isolated incident, her death raised the question of whether Asian immigrants don't speak up when they see something amiss. Local Chinese newspapers reported she was spotted wrestling with her killer before she was dragged into a back alley but no one helped her. The 109th Precinct said they received only one phone call about the attack, and so far only one witness has come forward to identify the killer.

(For a report in Chinese on the response, go here.)

Ki-soo Kim, the 109th Precinct's community affairs officer, said immigrants should not be afraid to contact the police. "We are not part of the federal government, we don't enforce immigration law," he said. Kim added that Mayor Michael Bloomberg's Executive Order 41, which requires that police keep the immigration status of victims and witnesses of crimes confidential, would bar police from reporting an undocumented immigrant who told them of a crime.

Elected officials also urged the public to report to the police when they see something unusual.

"If you see something, say something," said Peter Koo, Flushing's City Council member, borrowing the popular Metropolitan Transportation Authority slogan.

Grace Meng, Flushing's state Assembly member who helped Yao's mother obtain a visa to come to New York and accompanied her to court hearings, urged the public to report crimes to the police.

"When we are asked as representatives why we don't have more police presence, if you don't report it, the NYPD doesn't have the statistics, then we can't ask for more police on the street," Meng said.

She also attributed the lack of action from bystanders to the transient mentality common in immigrant communities.

"Our culture needs to improve. … If you community is not safe and the streets around you are not clean, then it does directly affect you," said Meng. "Some people might not see this as their home. They see it as a place to make money and send home. It is disappointing. … America is our new home, and we have to treat it as such."

As the community delves into soul-searching, people fend for their own safety by being alert and stay out of harm's way.

"In this tough economy, some people might turn to criminal acts out of desperation," said Fung, the housewife. "When you see strange people around you, go to a place where there are more lights and more people."

Larry Tung is a Brooklyn-based journalist and media artist.

Bail Presents Tough Choices for Parents, Judge

Photo byludwg

The purpose of bail in criminal cases was made clear last month at the United States courthouse in Brooklyn. The proceedings there also underscored what can happen when a defendant decides to abscond and forfeit bail.

In 2009, Ilya Pevzner was out on bail following a 2008 arrest on federal charges of impersonating an FBI agent and a Secret Service officer. His parents wanted to do everything they could to keep their son out of jail, if only temporarily. That meant posting bail as security to guarantee his return to court. But when Pevzner failed to appear before Judge Raymond Dearie on Oct. 16, 2009, his absence caused his parents to lose their home.

The System for Release

Soon after arrest, a criminal suspect is brought before a judge for arraignment and is formally advised of the charges. In most cases, the judge sets bail. The purpose of bail, as established by the United States Constitution, is to insure that the accused will return to court for trial and any other proceedings. The guarantee is backed by the defendant or defendant's family or friends, or by a professional bondsman who post money, property or a bond. If the defendant does not return, the money or property is forfeited.

In setting bail, the judge considers such factors as the defendant's criminal record, the seriousness of the crime and whether the arrested person has the ability, resources and motive to flee. But these points are to be considered in the context of one question: Will this person return to court? In theory, at least, the amount of bail is not based upon the gravity of the crime or the accused's record. Instead, the judge tries to predict the likelihood, considering all the factors, that the individual will return to court to face the charges, or whether he or she might abscond.

Bail is not meant to be punitive or to be set at an amount the defendant cannot possibly raise, making pre-trial detention inevitable. While there are some crimes, such as homicide, where judges usually do not grant bail, in many other instances the judge requires no bail and the individual is released and given a date to return. When bail is required it is usually high enough so that, if the defendant fails to appear, the cost to the defendant or others will not be inconsequential. Indeed, the loss can be enormous, as it was for the Pevzners.

Supporting Their Son

At an Aug. 12, 2008, arraignment, Inna Pevzner, the defendant's mother, voluntarily signed a bond guaranteeing her son's return to court. It was a type of IOU, meaning she would owe the government $50,000 if Ilya, then 29, did not return to court as directed, or if he failed to comply with certain other conditions, including attending a mental health clinic.

Even though he had returned to the federal court, he was arrested twice by New York City police between August and October, 2008, for identity theft and grand larceny. The judge therefore concluded that the additional charges made Pevzner a "flight risk," and remanded him. In other words, he was locked up.

At the next federal court appearance, five months later, defense counsel informed the court that his client's parents, Inna and Mikhail, would be willing to post even greater security, if it meant that the judge would release Ilya pending trial. Dearie granted that request and increased bail from $50,000 to $250,000, secured by the family's home.

The judge warned parents and son, "The last thing in the world I want to do is to see two hard-working people lose the family home. But that's exactly what happens if defendant doesn't abide by the terms."

Since the equity in their home was only $200,000, the Pevzners signed another security bond for the balance, $50,000. A lien was placed on their New Jersey home, and the parents were advised that the government could seize their bank accounts, future wages and any other assets if their son failed to appear. They spoke and understood English and signed the documents.

In June 2009, a jury found Pevzner guilty of the federal charges. He was allowed to remain out on bail and he was scheduled to return to court in October to be sentenced and probably incarcerated. Once he was sentenced, bail would be canceled and the lien against his parents' home would be removed.

The Consequence of Flight

Ilya Pevzner, however, did not return to court for sentencing. Not only did he fail to appear, he sent the judge a letter saying that he had left the United States and had gone to Russia, his family's country of origin. At the end of 2009, bail was declared forfeited, but the judge postponed seizure and sale of the house to give the defendant an opportunity to return to this country and to Dearie's courtroom before his parents lost their only real asset: their home.

The parents, arguing that their son was mentally ill and "erratic," then sought to have their bail liability reduced. Dearie denied their application.

"The Pevzners' decision to sign the bond and put their home up as collateral was motivated by their love for their son, and it must have been very difficult for them to objectively consider the risks involved, " Dearie said "[But] . . . it is important to the credibility of the bail system that courts do not relent just because of any hardship visited on caring and concerned parents. Here, the Pevzners were repeatedly warned that if their son violated the conditions of the bond, they would owe the entire bond. . . . To now allow remission while defendant is at large would undermine the integrity of those proceedings."

The judge's final words in the case of USA v Pevzner were, "Without question, the court is presented with an unpleasant task. Having waited inordinately long for the defendant to return to prevent the hardships of forfeiture, the court is restrained to act to ensure the effectiveness and credibility of the bail system. Pretrial release serves the interests of all concerned and can only be implemented if the conditions of release are enforced. I hoped, and waited, for a different resolution to this matter. But I have waited in vain."

In the meantime, on an average day, there are 13,362 inmates in New York City jails, most of whom are awaiting trial or other disposition of their cases. They remain in custody unable to make bail.

Emily Jane Goodman is a New York State Supreme Court Justice

State Seeks to Expand DNA Database

Photo by ironmanixs
A rendition of DNA on display at the Naturalis Museum in Leyden, The Netherlands.

Tyrone Williams raped, sodomized, sexually assaulted and robbed more than seven women across three boroughs over a span of five months, starting in 2003. Williams was eventually captured and sentenced to 35 years in jail, but his spree probably would not have been stopped so quickly had it not been for a previous 2000 conviction for attempted burglary. New York law required that on his burglary conviction, Williams' DNA be made part of the state's data banks. DNA found at the scene of the later crimes matched that DNA on record. Williams was arrested the very day the DNA match was made.

DNA from 356,054 people is stored as part of New York's data bank; all those samples com from a person convicted of any one of a number of qualifying crimes, including violent felonies and sexual assault. Now, if Gov. David Paterson has his way, that number will greatly increase, because the state would store data on anyone convicted of any penal code crime.

New York started its database in 1996 and has slowly but surely added to the number of crimes that require DNA data banking, starting with all felonies and now including 18 specified misdemeanors. Sixteen other states require those convicted of misdemeanors, as well as more severe crimes to submit DNA samples. New York would become the first state to have an all-inclusive mandate. All felonies and misdemeanors would now be covered -- that means over 200 new crimes would be subject to the DNA requirement.

Law enforcement officials from police to district attorneys say that increasing the DNA databanks only makes sense. "DNA is the fingerprint of the 21st century. It not only convicts the guilty, but frees the innocent," said Sen. Jeffrey Klein. He said it is imperative to expand the DNA database because the 30,000 unsolved crimes in New York represent about 10 percent of all unsolved crimes in the United States. Meanwhile, Klein said, New York's DNA database currently represents only about 4.5 percent of all DNA profiles in the United States.

But opponents say there need to be more safeguards to ensure the system is not abused and to all people who say they are wrongly convicted to access the data banks to clear their names.

Other interested parties, like the New York Civil Liberties Union, say that identifying people through DNA is not as foolproof as many in law enforcement say. They argue that police and court should not rely upon it as much as they do. "Samples are often degraded, they're often mixed, and it can be quite a complex understanding when looking at a sample," Bob Perry, the legislative director for the New York Civil Liberties Union told the Journal Register, "That can significantly compromise the DNA database."

John Caher, a spokesman for the State Division of Criminal Justice Services, said that concerns about the database are unwarranted. "I can cite 15 times DNA has exonerated someone in New York. Ask the Civil Liberties Union for an example where someone has been wrongly convicted by it in New York. This will prevent crimes," he said.

Moves for Expansion

Paterson's bill is expected to add around 48,000 new samples to the state data base per year. Currently 46 percent of crimes in the state are subject to DNA collection -- the legislation would likely create a massive influx of new DNA data. Officials hope that will help solve some of New York's 30,000 or so unsolved crimes. It would take effect starting next year and would cost around $1.57 million a year to maintain. Currently though, the bill has no sponsor in either house.

Paterson's measure would simply expand the database -- nothing more. A bill sponsored by Assemblyman Joseph Lentoland passed by the Assembly would expand the DNA database but institute various safeguards, such as creating guidelines for DNA sampling, requiring the videotaping of police interrogations and setting up a board to review the cases of those who say they have been wrongly convicted.

Lentol said that a number of people in New York who were later cleared by DNA evidence were convicted because of confessions. "What is wrong with that picture?" asked Lentol.

In the Senate, Lentol said his bill is being shepherded by Sen. Eric Schneiderman.

But Schneiderman does not seem exactly committed to pushing it through. "The senator supports both pieces of the puzzle,” said Schneiderman spokesman James Freedland. Freedland said Schneiderman would be happy to see Paterson's bill become law, and would also be happy to see the protections that Lentol wants put in place.

"We welcome the governor's effort to expand the DNA database as a critical law enforcement tool to solve crimes, protect the innocent and bring criminals to justice," Freedland said in a statement responding to Paterson's legislation. "Sen. Schneiderman has been a longtime sponsor of several bills that expand DNA testing and create safeguards for the wrongfully convicted. Let's not waste this opportunity to make our criminal justice system more fair, reliable and just."

Lentol, though, does not want to wait for more protections. "The Republicans kept pushing for extensions to the database: first it was violent felonies, then non-violent felonies, and each time they would say, 'Wait, we will get to the protections,’" said Lentol

But a some advocates of expanding the database say law enforcement would not support the safeguards in Lentol's bill, ensuring that the bill fails when it comes to a vote in the Senate.

Increasing the number of sample "has been on the agenda for years but always failed, in part because of a poison pill," Caher said. On the other hand, Paterson's proposal, he said, "is a very clean bill because it does one thing -- expands the database."

"DNA testing is one of the most reliable and cost-effective tools that we have in law enforcement. An expanded database will help convict the guilty, exonerate the innocent, and bring closure to thousands of victims from unsolved cases," said Manhattan District Attorney Cyrus Vance of Paterson's bill in a statement.

Klein, though, would go further than Paterson. He has proposed legislation called "DNA Upon Arrest," which would require DNA samples of anyone arrested on a felony charge. Their DNA would be expunged later if they were found not guilty. Twenty-one other states have laws mandating DNA collection on arrest.

With a number of proposals to expand the DNA database under consideration, those involved said they would welcome a chance to sit down and try to reach an agreement. So far that hasn't happened.

Some sources say all this could be sorted out in budget negotiations. The expansion of the database may very well be pushed through as part of the budget package, as the Rockefeller drug reforms were last year, if and when a budget agreement is actually reached.

Court Sets High Bar for 'Egregious

divorce, equitable distribution
Squibs of California

In New York State -- and in New York only -- a contested divorce requires proof of fault. One party must allege and prove that the other spouse's conduct violated one of the grounds for divorce, such as adultery, cruelty, abandonment, formal separation for a year.

The question of who is at fault, though, and how serious the conduct, however, is almost never a factor in the distribution of marital property and assets and will not defeat equitable distribution, the system which guides the division of marital property in New York. (New York is not a 50-50 state.) This was made clear last month by the state's highest court, the Court of Appeals in Howard S. v. Lillian S. (no further identification is provided).

[For more on New York's divorce laws and efforts to change it, see No Fault Divorce Creates Strange Bedfellows.]

Adultery or Fraud?

Through a DNA test, Howard learned that the youngest child of the marriage, a 3-year-old girl the couple had raised together, along with their other children, was actually the child of Lillian and another man. Howard was not the girl's father. He sued Lillian for divorce based on cruelty, adultery and fraud, the fraud being her insistence that she had been a "faithful" wife. She countersued charging abandonment.

But fraud is not one of the causes of action for divorce so that became a separate case in which Howard wanted "discovery," or pre-trial examination of Lillian and perhaps other witnesses. He was seeking information on Lillian's other relationships, the fault that he would try to use to block equitable distribution of the couple's assets and prevent her from getting what she might otherwise be entitled to.

He could not have gotten this information within the direct divorce proceedings. Since even the adultery charge would not lead to discovery on his wife's "misconduct" or have the desired effect on distribution of assets, his approach had two prongs -- to use the allegation of fraud to gain disclosure about Lillian's other relationships and then gain the assets by establishing her fault.

In the meantime, Howard demanded the return of money spent on "collaborative" justice, such as mediation, as well as his support of another man's biological child.

Dividing Property

The statute in the Domestic Relations Law concerning the distribution of marital assets, says that in addition to the basic issues such as age, health, duration of marriage and contributions to marriage, a judge may consider "any factor which the court finds to be just and proper."

In the opinion, Chief Judge Jonathan Lippman clarified any confusion on the connection between fault and equitable distribution. The opinion, from which only one of the seven Court of Appeals judges dissented, clearly stated, "We have rejected the notion that marital fault is a 'just and proper' consideration, [e]xcept in egregious cases which shock the conscience of the court."

Not Bad Enough

Before reaching the highest court, two lower courts had found that Lillian's acts did not rise to the level of "egregious fault," which might affect her financial entitlements. In other words, having a child outside the marriage and failing to disclose that to the other spouse for three years, does not figure into the calculus of equitable distribution of marital property.

Ruling this scenario did not constitute egregious conduct, the chief judge, in his opinion, gave examples of those few cases that have held conduct to be egregious. They all involved extreme violence, and in one case, attempting to bribe a judge.

In the 2002 case of Theresa Havell v. Aftab Islam, a Manhattan judge considered the usual factors in determining what would be an equitable distribution of the couple's assets. In that case, the court also considered the defendant husband's fault -- verbal and physical abuse of wife and children, including the husband's attempt to kill his wife and almost succeeding. His violent attacks did cause severe and permanent injuries to his wife, and occurred in the presence of their children.

After trial, Havell was awarded more than 95 percent of the estimated $17 million in marital assets, most of which she had contributed), with the judge calling her husband's actions so egregious as to shock the conscience.

An irony here is that the same judge, Jacqueline W. Silbermann, who found Aftab Islam's actions egregious, has since retired from the bench and is a matrimonial lawyer in private practice. It was she who represented Howard S. in his appeal where the claim of egregious conduct was rejected.

Emily Jane Goodman is a New York State Supreme Court Justice

No-Fault Divorce Creates Strange Bedfellows

no-fault divorce

There is no denying that divorce in New York can be an ugly process. Yes, even uglier than in most states. When North Dakota in 1985 adopted a no-fault divorce law, it left New York as the only state in the country not to have a process by which two people can legally end their marriage without any accusations of wrongdoing or evidence hearings.

In New York, to get a divorce, one member of the couple must prove wrongdoing by the spouse or the couple must sign a separation agreement and live separately for a year before a judge makes it official. Now, Sen. Ruth Hassell-Thompson and Assemblymember Jonathan Bing have introduced legislation that would bring New York up to speed with the rest of the country as far as divorce law goes. The Hassell-Thompson bill was voted out of the Senate Judiciary Committee on Tuesday, and Bing says his legislation has major bipartisan support in the Assembly.

But there are those who still feel the legislation will hurt women, and others who say divorce should not be made any easier. The legislation faces fervent opposition from two organizations -- an odd couple of sorts -- the Catholic Conference of New York and the National Organization for Women-NYS. Both oppose the measure, but for very different reasons.

Finding Fault

Proponents of no-fault divorce say that forcing couples to accuse each other of wrongdoing, abuse, infidelity, neglect, can make a difficult process even worse -- not only for the couple but for the children involved and also can lead to tremendous legal costs. "No one cares about no-fault divorce until their marriage is falling apart and they find out, "Oh, my god, there is no no-fault option," said Sen. Liz Krueger, who supports the Hassell-Thompson legislation, "Couples find out they have to allege something that may not really be true."

Bing said the legislation will decrease domestic violence by helping the abused partner get out of a bad marriage quickly. "I think for years there was concern that women in a lesser financial situation than their spouse would be in a bad position," said Bing, "But we've seen it work in other states, and it has reduced rates of domestic violence and the cost of divorce, because people aren't spending years in litigation."

The National Organization for Women, though, fears the bill, if passed, would put women at a disadvantage.

"We all know that divorce often plummets women into poverty. And when women live in poverty, their children are affected too. All we are asking is that the ... legislature take steps to protect the lives of women and children in divorce situations," Marcia Pappas, president of National Organization for Woman-NYS said in a March speech.

While not opposing no fault divorce, Pappas told the Legislative Gazette Hassell-Thompson bill includes a loophole that could be damaging to women. She said there is a "huge loophole in the bill for the monied spouse to trump up the reason to get a divorce without having to settle all of the issues. What it does is it leaves the lesser monied spouse in a situation where then they have to go into court and try and fight all of these issues one at a time. It leaves the lesser moneyed spouse at a disadvantage in terms of negotiating."

Basically Pappas is concerned the wording of the bill could allow the wealthier spouse to tie up their spouse in court and might give them an advantage in negotiating for custody and spousal support.

Supporters of the legislation say they feel that the new law combined with the current system will protect the rights of women. "As far being practicing attorneys, we know the relevant legal factors. And we feel their objections are not completely founded. We don't think it will hurt women or prevent them from succeeding in negotiations," said Cynthia Shrock, president of the Women's Bar Association of the State of New York.

Shrock said that some opponents of the legislation say removing "grounds" from divorce proceedings could hurt the "non-monied" spouse in divorce hearings, because they won't be able to present abuse or other conditions that could influence custody or monetary arraignments. But Shrock said that is not so. She said the courts will still be able to consider claims of abuse when considering custody and monetary awards for child and spousal support.

Divorce Prevention

The Catholic Conference of New York opposes no-fault divorce in general, contending that it makes it too easy to end a marriage.

"The fact that there is a low divorce rate in New York is not a bad thing," said Dennis Proust, spokesman for the Catholic Conference of New York. New York has traditionally had an annual divorce rate around 3 percent, according to the National Center for Health Statistics. States like California and Nevada have about a 6 percent rate.

"Marriage is supposed to be for life. It is not a cell phone contract or a car lease," said Proust. "People who are in abusive relationships have a quick way to get out and people who want to get divorced otherwise have to wait a little while, and that is not necessarily a bad thing."

Kyle McCauley Belokopitsky, director of government relations for the New York State Catholic Conference, argued before the Senate Judiciary Committee on May 6 that the proposed law would allow a divorce to happen if one member of the relationship wanted a divorce and the other didn't, "for any reason or for no reason at all."

"No-fault divorce laws in other states and countries, including Canada and England, have resulted in measurable increases in the divorce rate," he testified. "Yet, according to the social sciences, marital dissolution brings with it significant negative impacts on children, adults, families, and society as a whole."

Under the current law, divorces in New York can be granted on six grounds, such as cruel treatment, abuse or abandonment. If none of these grounds exist, a divorce can be granted if a couple lives separated for a year and a separation agreement has been reached. However, if one party fails to take court action after that year the divorce does not happen.

Easing the Pain

The Women's Bar Association of the State of New York has shifted its position on no fault divorce over the years, according to Shrock. While the organization once was afraid it would hurt women, it now believes no-fault will make divorce less hurtful for all parties involved. "I represent the child, and the longer the matrimonial action lasts the harder it is on the child. The claims made in court can be against the wife or the husband but all sides end up suffering."

Shrock said that a woman in an abusive situation who does not have much money would not benefit from the one-year separation, or "cooling off period" as some refer to it, because she would not have the means to support herself and her children away from her spouse. Meanwhile, a divorce based on the grounds of abuse would also be too costly, leaving her in the abusive relationship. She says the law will make it easier and more affordable for women to get out of abusive marriages.

A 2004 study by the Stanford Business School looked at how no-fault laws have affected rates of domestic violence and divorce in states that adopt the law. According to the study, divorce rates go up sharply after the law is passed but level out to pre-law rates in about a decade. On the other hand, domestic violence dropped sharply in states that accepted no-fault divorce as did suicide rates.

Two other bills are under consideration as part of a package of divorce reform including the no-fault provision in both the Senate and the Assembly. The first, sponsored by Sen. John Sampson and Assemblymember Helene Weinstein, would have judges decide whether one spouse should pay the other spouse's legal fees before a final judgment is made during a divorce case.

The second piece, sponsored by Hassell-Thompson and Assemblymember Amy Paulin, would create a formula for determining the amount and duration of spousal support payments. Similar legislation exists for child support payments.

Prospects for Change

So is New York likely to become the 50th state in the nation to have no-fault divorce this year? "The chances are better now than they were before," said Proust, "but it’s not a slam dunk if it gets to the floor. I think the fact that two such diverse groups as the Catholic Conference and National Organization for Women oppose this sends a message."

Proust and others who oppose the legislation think there is a good chance it could fail in the Senate. At least one Democrat -- Sen. Ruben Diaz -- opposes the measure, and it seems unlikely Democrats will be able to marshal all the votes they need from within their party. Opponents of the legislation say they expect a number of legislators probably won't voice their opinion on the matter until it comes time to vote. Eight Republican senators voted against moving the bill out of the judiciary committee. Those senators were John DeFrancisco, Kenneth LaValle, George Maziarz, Michael Nozzolio, Michael Ranzenhofer, Steve Saland, Dale Volker and George Winner. Other Republicans voted for the bill.

Bing said he hopes to translate bipartisan support for his bill in the Assembly into Republican support in the senate. "It may be hard to get through the senate with such a tight majority, but my hope is that the Republican Assembly members signed onto my bill will lobby their senators to support it so it won’t be held up if all Democrats aren't on board. I am hopeful it will pass this year."

Sen. Neil Breslin, a lawyer who is on the judiciary committee, said that he expects bipartisan support in the Senate. He said he was personally proud to move the bill because of things he has seen during his law career. "Just having witnessed, as a lawyer, the process of divorce…it is horrific. So this is very important and I think people realize that," he said.

Krueger said New York has been last on a number of child and family issues. It was, she said one of the last states to pass legislation that would allow unmarried couples with children, same sex couples or the elderly to file for restraining orders based on domestic violence. Krueger blames this on the decades-long Republican control of the Senate but she hopes Republicans now understand the issue of divorce: "I'm sure Republicans have heard from their constituents and their horror stories, they might have even experienced it themselves."

Cuts Burn Fire Department

new york city, fire department, engine, company, closure
Photo (cc) 2010 jamie_hladky

A proposal to slash 20 fire companies from the Fire Department's ranks does more than irk firefighters.

It burns them.

A crowd of elected officials and firefighters gathered in front of a Long Island City firehouse Friday to slam the Bloomberg administration's proposal to strip the department of 400 firefighters.

One of those firefighters was Bob -- a 23-year veteran of the department who did not want to use his last name for fear of repercussion. Bob has fought blazes with the rest of Queens' Hook and Ladder 116 for nine years. Cutting almost 7 percent of the city's fire companies now, Bob said, would be "crazy."

"It's more dangerous for the community and me," Bob said of the potential closures, which he contends will add catastrophic seconds to the department's record-low response time. "Another 30 seconds, a minute, forget about it."

Overall, the Bloomberg administration is proposing to cut $27 million from the Fire Department in fiscal year 2011 -- equal to about a 1.7 percent cut in controllable city funds. To close a budget gap, the administration has proposed to reduce the number of firefighters per engine, get rid of the so-called outdated street fire alarm boxes and, most controversially, close 20 fire companies.

But firefighters, city and state politicians as well as labor leaders are ready to bring the heat on the administration. They say the city cannot afford to lose any firefighters, especially in light of this month's bomb scare in Times Square. If the mayor cares about public safety and is willing to abandon cuts in police officers, they say, firefighters should be held harmless too.

"We're like the Marine Corps for the city," said Fred Sutton, a retired firefighter from Ladder 116 on Friday. "Cops are like the army."

Slashing Engines

The administration counters: There have to be cuts somewhere.

"'We've been forced into a position that we have to make choices that no one wants to make and they're very unpopular," said mayoral Spokesperson Marc LaVorgna of the fire company cuts. If the administration didn't make these decisions, then the city's fiscal situation could end up like Albany's, LaVorgna added.

The administration's proposal would aim not to close firehouses, which typically hold more than one fire company, such as a ladder and an engine company.

Critics of the cuts say the administration should look elsewhere to trim the fiscal fat. Comptroller John Liu argues the fire company closures are small compared to the entire city budget -- in fiscal year 2011 the closures would save about $5.6 million. The city could cut back on unnecessary contracts to save the engines and ladders, he said.

Others attribute the administration's proposals to fear mongering.

"This is the administration trying to scare the crap out of New Yorkers," said Assemblymember Michael Gianaris at Friday's rally in Queens.

The administration has not said what companies could close, and it does not have to until 45 days before the budget deadline of June 30, according to a mayoral spokesperson.

When asked how the department would select fire companies to close, a Fire Department spokesperson e-mailed: "The criteria would be, as always, to allocate our available resources as best we can to protect the citizens of New York City."

In anticipation of the cuts, labor officials are looking to the mayor's proposal from last year, which would have cut 16 fire companies (it was reversed by the City Council). Many think those same companies, which included a company on the South Shore of Staten Island, one on City Island in the Bronx and another in Bushwick, Brooklyn (to name just a few), will end up on the chopping block again.

The loss of 400 of the city's 11,000 firefighters under the proposal would be done through attrition, according to mayor's budget proposal.

The last time fire companies were closed was in 2003. Six engines were shuttered, including one at the firehouse in Long Island City.

Other Alternatives

Outside ladder 116 on Friday, several council members said they wouldn't take closures as the answer.

"The mayor found $100 million to secure our security services," said Councilmember Elizabeth Crowley, the chair of the council's Committee on Fire and Criminal Justice, referring to the mayor's promise to save cops from budget cuts. "Well, the Fire Department is our security services."

Photo (cc) 2010 Courtney Gross

For now, fire, state and council officials aren't looking to compromise, and they are using the recent scare in Times Square to bulk up their argument.

"We are prepared and trained to do the unimaginable, respond to a biological, chemical, nuclear or radiological attack. We can't do that from a closed firehouse," said Steve Cassidy, the president of the Uniformed Firefighters Association. "Last Saturday was the reminder that New York City remains the number one target for terrorists. I am not sure the mayor got the message."

In terms of need, fire officials say the city now has fewer fires than in years past. In 2009, the department responded to 43,677 fires compared to 51,563 in 2002. But, labor officials argue, the department has taken on other responsibilities, like building inspections resulting from the fire at the Deutsche Bank building in 2007. In 2002, the department responded to 374,949 non-fire incidents. In 2009, they went to 429,541 incidents -- an increase of 14.6 percent.

All of that takes manpower, said labor leaders, and the city can't lose any of it.

When asked whether fire unions would consider contributing to health care costs or other benefits to save fire companies, union officials scoffed.

"Fire protection should not be paid for by firefighters," said Capt. Al Hagan, the president of the Uniformed Fire Officers Association. "We feel that fire protection should be paid for by the people, and we think the people have no objection to paying for fire protection."

Council, Courts End the 'Tenant Blacklist'

landlord blacklists, new york city, housing
Photo 2010 Oates Ritthichai

The term "blacklisting," usually associated with 1950's McCarthyism, has taken on a new meaning. The blacklisted in 21st century New York have been people applying for apartments whom property owners deem undesirable as tenants. In an effort to limit this practice, the New York City Council in March, building on previous court cases, enacted the Tenant Fair Chance Act.

While credit checks are well known, most New Yorkers do not realize that some companies buy landlord-tenant filings, harvest court histories and sell them to landlords. The endgame is for landlords to learn whether the apartment-seeker had an in-court dispute with a prior landlord.

Tenant screening agencies, as the companies are known, may supply information about credit, character, reputation and personal characteristics, but the new law's emphasis is on "history of contact with any court... [and reports] used for the purpose of serving as a factor in establishing a consumer's suitability for housing."

The Legal Background

In the case of White v. First American Registry a class-action was brought in federal court in Manhattan against the nation's largest tenant screening agency. In his ruling, Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York noted that landlords are all too willing to use such "consumer reports" as a blacklist, "refusing to rent to anyone whose name appears on it regardless of whether the existence of a litigation history in fact evidences characteristics that would make one an undesirable tenant."

The judge went on to say the practice of seizing upon the availability of Housing Court filings helps "to create and market a product that can be, and probably is, used to victimize blameless individuals. Tenants and lawyers in that case won more than $2.9 million.

While everyone agrees landlords have a right to know who will be living in their buildings, and that they should do some checking, Kaplan agreed with tenants that the records obtained and sold by screening agencies are unreliable. As Supreme Court Judge Barbara Kapnick wrote in the later case of Dawn Weisent v. Subaqua, "regardless of whether or not a tenant prevails in the Housing Court, his or her name may appear on the 'blacklist.'"

Limited Information

The Housing Court records that are bought and sold show merely that a proceeding was commenced, not what ultimately happened in the case, making the information incomplete or even inaccurate. The records the screening agencies receive from the court show a proceeding was brought -- for example, Landlord v. Tenant -- but give no other information. Because of the limited facts, the case might not even involve the tenant in question, but someone else with the same name, giving a false impression of a potential tenant’s history with a landlord.

The records also do not reveal, for example, that a tenant might have previously withheld rent due to dangerous housing conditions. Instead, they simply show that the tenant was a defendant in a lawsuit. The records also will not reflect that a Housing Court judge might have dismissed the landlord-tenant proceeding, finding that it was baseless, or deciding after trial in favor of the tenant. In other words, the mere fact that there was a proceeding in an apartment related dispute brought to court could be used against a person trying to rent an apartment -- even if it is the wrong person.

The Council's 'Fair Chance'

The Tenant Fair Chance Act, which was introduced by Manhattan City Councilmember Daniel Garodnick and co-sponsored by 17 other members, goes into effect this summer. It intends to let potential tenants know if screening agencies are being used and what they have reported about them, especially if adverse information has led to denial of an apartment.

In introducing the bill, Garodnick said, "Tenant screening reports are one of the most powerful tools working against renters today, and yet they are almost completely unregulated."

Under the new law, the tenant who is spurned is entitled to a copy of the report and the opportunity to make any corrections. The law states, "Every tenant or prospective tenant may dispute inaccurate or incorrect information contained in a tenant screening report directly with the consumer reporting agency."

A violation of the Tenant Fair Chance Act law “shall be subject to a civil penalty of not less than $250 nor more than $700 for each violation.” Other penalties, including criminal prosecution, also are available.

Emily Jane Goodman is a New York State Supreme Court Justice

Police Need New Approach to Deal with the Mentaly Ill

crisis intervention team

In 2008, New York City police arrived at the Bedford Stuyvesant home of Iman Morales, a 35-year old man with a psychiatric diagnosis. Distraught and naked, Morales had climbed out the apartment window and onto a storefront ledge. The encounter ended when one of the officers aimed his Taser at Morales, who then plummeted onto the concrete 10 feet below and suffered a fatal head injury.

The officers on the scene were, like all New York Police Department officers, armed with guns, but no proper training or tactics to diffuse a situation with a person with mental illness. Later that week, the police lieutenant who gave the order took his own life.

In response to Morales’ death, Police Commissioner Raymond Kelly responded by saying the NYPD would increase training for police officers -- but the change was purely in the quantity of instruction, not the quality. Kelly said the additional training would be "in essence, going over the training they've received."

An Inadequate Response

Going over the basics is not enough. There continue to be a shocking number of incidents where the New York City police have encountered a person in a state of psychiatric crisis, and rather than de-escalating the situation, their untrained reactions and poor decisions have left the person injured or even dead.

The police department's current policing practices are at best inadequate, and at worst ineffective. A refresher course on an insufficient model does not change direction and certainly has not prevented people with mental illness from being criminalized or killed. A true shift in policy is needed, with the police spending more time with people with mental illness so that they can be treated with the dignity and respect that they deserve.

Sadly, that has not happened, and the Morales encounter remains not far from the norm. Two years after his death, the New York's policing model still includes no distinct response system for its officers to safely interact with people with psychiatric disabilities when they are in a state of crisis.

Olga Negron, Morales' mother, still lives with the loss of her son. She says that she misses him "so much -- my heart hurts everyday." She knows that her son’s death was avoidable -- if the police department only knew how to protect both New York's psychiatrically disabled and the many police officers who interact when them on a daily basis.

What Other Cities Do

Luckily there is a solution -- for Negron, and for the New Yorkers with psychiatric disabilities. Eighty cities and counties around the country have taken on new policing models to make interactions between police and people with mental illness safer for all involved and reduce arrests. Crisis Intervention Teams connect residents to social services early in cities large and small around the country -- including Los Angeles, Chicago, and Houston -- and keeping people who need treatment out of jail and prison.

Rather than killing or injuring people with mental illness, Crisis Intervention Teams offer an opportunity to help provide treatment and a therapeutic environment to individuals in need of support. While New York's prison population is decreasing, the percentage of prisoners with mental illness has risen. The Crisis Intervention Teams provide a humane solution to the unjust punishment of people with mental illness.

Crisis Intervention Teams require police officers and 911 dispatchers to receive 40 hours of training that teaches them to recognize signs of mental illness so they can identify symptoms in individuals. The programs also cover de-escalation techniques, so that police and dispatchers can refocus on diverting individuals into treatment.

In some places, only Crisis Intervention Team police officers respond to crisis situations, but in others, like the model in Westchester County, a social worker or peer specialist works out of the precinct and co-responds with police officers. The team model works with self- selected staff, so the experienced workers have a deep and skilled understanding and sensitivity to mental illness from the get go.

In addition to training, Crisis Intervention Teams forge stronger relationships between local precincts and community hospitals and mental health centers. The process of admitting someone to a treatment facility is streamlined so that the police don't wait long hours in an emergency room and so that people who are in need of treatment get it immediately.

Who Not Here?

On Feb. 24, experts from Westchester' Crisis Intervention Teams came to New York City to share the success of their model and its ability to increase the safety of the community, police officers and people in crisis, and aid recovery for people with mental illness.

Unfortunately though, the New York City Police Department continued its pattern of refusing to hear proposed solutions or to adopt these new models despite their proven effectiveness in deescalating crises. Department representatives did not show up for the roundtable, organized by Rights for Imprisoned People with Psychiatric Disabilities, or RIPPD, a grassroots organization of formerly incarcerated people with psychiatric disabilities, advocates and family members.

Recently, community residents and members of Rights for Imprisoned People with Psychiatric Disabilities gathered outside the 79th police precinct, where Morales died, and demanded: How can the New York Police Department not implement this program?

Too much is at stake. The list of New Yorkers with mental illness harmed by police unprepared to help them is too long, and includes Earl Black, Rodney Mason, Alan Zelencic, Stephanie Lindboe, Khiel Coppin, Gilberto Blanco, and David Kostovski.

The New York Police Department must do the right thing for New Yorkers with mental illness, their family and friends -- and their own officers. Until the police modernize their tactics, every encounter with a person in psychiatric crisis will continue to be a chance for avoidable tragedy.

Alexandra Smith is a criminal justice advocate at the Urban Justice Center’s Mental Health Project and a member of Rights for Imprisoned People with Psychiatric Disabilities. For more information visit Rights for Imprisoned People with Disabilities.

Suits Would Burden Foster Parents, Court Rules

foster children, foster care

Jacob Harris was born in 2004, with traces of cocaine, opiates, marijuana and methadone in his body Dutchess County child welfare officials placed him with a foster mother, Diane Sherwood, while his birth mother, a drug addict, went into treatment.

When the mother, Taylor Harris, left treatment after six months and regained custody of Jacob, she brought a lawsuit against Sherwood and the Dutchess County Department of Social Services and the county's commissioner of social services for an injury the baby had sustained in Sherwood’s home. She alleged that her child was injured as a result of negligent care and supervision and failure to provide a safe environment.

Jacob's Climb -- and Fall

At 16 months, Jacob had been napping but, when he awoke, climbed out of his port-a-crib and onto a dresser of about the same height. He fell, fracturing a femur.

Sherwood had two of her own children in the household, and had cared for foster children for five to six years before Jacob joined her family. She kept Jacob's portable crib in her bedroom because of his special health problems including pneumonia for which he needed a nebulizer at night.

The Department of Social Services had inspected the portable crib and the living arrangements before the accident and did not voice any concerns. Jacob had never climbed out of his crib before, and the accident occurred suddenly and without warning. It could not have been foreseen or prevented by any reasonable degree of supervision, argued Sherwood’s lawyer, Daniel E. O'Neill of the firm of Boeggeman, George & Corde, P.C., in White Plains.

O'Neill said that his client's decision to place the baby in his crib for a midday nap and then go to the kitchen to make lunch for her other children, was a "typical judgment and decision made by every parent of an infant on a daily basis."

But the biological mother claimed that Sherwood failed to have "audio alarms and monitors, video monitors, warning devices, crib and playpen safety constraints" that would have somehow prevented Jacob from climbing out of his crib or immediately alerted someone if he did.

Parental Responsibilities

Birth parents and foster parents are equally responsible for children in their care since foster parents step into the shoes of biological parents when the birth parents cannot care for their children. This case represented the first time the question of whether foster parents can be sued for neglect supervision had arisen. Courts had already held that biological parents could not be, and a child would have no legal claim for damages against his or her parent for negligent supervision.

Was Sherwood’s conduct negligent? Could closer parental supervision have prevented the accident? Was Sherwood's conduct the cause of the accident? Was it foreseeable?

The argument was that she was not negligent, but even if she had been, the suit could not succeed. The child protective agencies had concluded that there was no negligence. The only question the court addressed was not whether she was negligent, but whether she could be sued.

The New York State Court of Appeals had previously held that if courts allowed lawsuits by parents, virtually all parents could be sued.

"We can conceive of few, if any, accidental injuries to children, which could not have been prevented, or substantially mitigated, by keener parental guidance, broader insight, closer protection and better example. Indeed, a child could probably avoid most physical harm were he under his parents' constant surveillance and instruction," the state's highest court had said.

Foster Parent as Parent

The relationship between Diane Sherwood and Jacob Harris was, with respect to the issues present in this particular case, identical to the unique relationship between a non-foster parent and child. Judgments made by a natural or foster parent are made for the same reason -- to promote the child’s physical, emotional and intellectual development.

In this case, McCabe v Dutchess County, Judge Plummer Lott, writing for the Supreme Court Appellate Division, Second Department, which hears appeals from Richmond (Staten Island), Kings (Brooklyn), Nassau, Queens, Suffolk, Westchester, Dutchess, Orange, Rockland and Putnam County, recently quoted the higher appellate opinion saying, "If within the wide scope of daily experiences common to the upbringing of a child, a parent may be subjected to a suit for damages for each failure to exercise care commensurate with the risk -- for each injury caused by inattention, unwise choice or even selfishness – a new and heavy burden will be added to parenthood."

Lott concluded in February, "We decline to impose such a heavy burden on foster parents, who agree to care for children who often come from difficult backgrounds and to whom they do not have any natural affinity. To impose such a burden would serve to discourage otherwise qualified and able foster parents from taking on this responsibility, notwithstanding the compensation they receive for so doing."

According to O'Neill, attorney for the foster mother, Taylor Harris has now permanently given up custody of her son. Social Services is prohibited from disclosing whether Jacob, now six, is in foster care again (he is not with Sherwood), in some other type of facility or possibly adopted.

Emily Jane Goodman is a New York State Supreme Court Justice

Fewer Prisoners, Fewer Prisons?

prisons, marcy correctional facility
The Marcy Correctional Facility in upstate Oneida County.

It seems simple. With prison populations declining and crime rates plummeting, Gov. David Paterson has proposed closing four upstate correctional facilities. It is estimated the move would save $7 million this year and $52 million in the next fiscal year. And in a year when the governor is proposing billion dollar cuts to education and health care, one might think closing three prisons in upstate New York would be an obvious move.

It's not. While some advocates charge that Paterson's planned closings don’t go far enough, a combination of political and economic concerns could save the three institutions on Paterson's list.

For example, the Moriah Shock Correctional Facility, which Paterson has proposed closing, is in the area where the Lake Champlain Bridge was destroyed, leaving the area economically crippled. Area resident say they cannot afford to lose the prison as well.

The Ogdensburg Correctional Facility, to take another instance, is in the district of Sen. Darrel Aubertine, an upstate Democrat who helps make up his party's uber-slim Senate majority. Voting for a budget that closed the prison in his district would be political poison for the freshman senator, and it is unlikely his conference would support anything that would put his seat in jeopardy.

Mount Lyon Correctional Facility is also on Paterson's list.

How Much They Cost

Despite the opposition to the closings, the Correctional Association of New York, an advocacy group, would shut more facilities and came to Albany on Tuesday with hundreds of members to press the legislature on the issue. The association estimates that New York state prisons have 6,300 empty beds that cost taxpayers some $140 million over a two-year period. Incarcerating a single individual costs the state $55,000 a year. Meanwhile, it is estimated that maintaining an empty bed costs around $22,000 annually.

Where They Count

The city of Ogdensburg has a population thought to be over 11,000 and their median household income is a little over $23,000 -- compared to the national median of around $40,000. The city has an 11 percent unemployment rate. The Ogdensburg Correctional Facility employs 287 workers and has an annual payroll of over $20 million.

Ogdensburg City School District Superintendent Timothy M. Vernsey told the Watertown Daily Times that the closure would have a trickle down effect. "As employees relocate for work, it negatively affects our enrollment numbers, which, in turn, affects the amount of state aid the district will receive," he told the Daily Times. "Eliminating a major employer in an already stressed community is devastating news."

The Essex County Board of Supervisors commissioned an economic report on the impact closing the Moriah Shock Correctional Facilitiy in Mineville would have. The facility provides 102 jobs but the report says those jobs make up about 1 percent of the county economy. According to the report, closing the prison would send the area's 10.3 unemployment rate up to 11.1 percent.

According to the board, the prison provides the area with about $8 million in revenue a year -- almost the same amount of money the state would save by closing the prison. The report also considered the benefit that the county received from having inmates perform community service. Prisoners did 94,136 hours of community service in 2009 -- a third of which was working for the Department of Conservation. The report states that inmates are often the frontline labor crews that clean up from natural disasters.

While these communities get jobs from the prison system, they also get political clout because the census counts inmates as living where they are jailed, not in the communities they hail from. Prisoners in New York State are mostly blacks and Hispanics who come from poor neighborhoods in the city. Most correctional facilities are far upstate in small, rural, white communities. The prisoners boost the population of some towns that have been losing people to other parts of the state and the country.

Democrats have introduced legislation that would count inmates where they come from when it comes to drawing legislative districts. This would almost certainly result in more members of the State Assembly and Senate from the city and fewer from upstate. Not surprisingly, Republicans from rural upstate prison communities steadfastly oppose it.

Most Democratic senators are loathe to talk about the chances of prison closures making it through this budget process, even though a good majority of them are in favor of the idea. "Shut 'em down! I'm sick of hearing Republicans complain they won't have anyone to cut their grass," said one Democratic senator whose district does not have a prison.

"Since entering the Senate, I have heard my downstate Democratic colleagues repeatedly call to close our upstate facilities, often citing what they believe to be an unfair counting of inmates in the federal census," said Sen. Betty Little, who represents a district where two prisons would be closed, in a statement released after Paterson's budget was revealed. "Closures not only directly impact those employed at correctional facilities, but there's also a ripple effect that is tough for rural and economically depressed communities in the North Country to absorb."

State Sen. Liz Krueger said the communities would need help if the prisons were to leave. "We need to right-size the prison system," she said. "Prisons rank very low on the scale of good economic development. But at the same time we need to help upstate with economic development."

Caitlin Dunklee of the Correctional Association says sending prisoners upstate from New York's downstate communities not only devastates those communities’ voting power but also destroys families. "Ogdensberg is literally right on the Canadian border," said Dunklee. "Free transportation is hard to find and making a 10-hour trip can be impossible" She says this leads to mothers losing custody of their children and other inmates losing the support of their families.

Counting Beds -- and Who's in Them

On Tuesday, lobbyists and advocates on different sides of the issue stood face to face, jam-packed into elevators, spilling out of meeting rooms, standing at ends of halls, lost and looking for room numbers. At the Legislative Office Building there was no question that budget season is in full swing. Advocates from the Correctional Association went into meetings with legislators and their staffs touting statistics that point a steady decline in prison population.

According to the state the inmate population has declined by almost 14,000 over the last 10 years -- a rate of nearly 30 percent. The number of inmates has declined by 4 percent this year alone and it is expected to decline by another 1,000 during the 2010-2011 fiscal year. But just last week legislators were being told a different story by lobbyists for the New York State Correctional Officers and Police Benevolent Association. There are approximately 59,000 inmates in New York's correctional system.

The correctional officers' union and lawmakers who represent districts that are home to the facilities say that prisons are actually at or above capacity. Donn Rowe, president of the union, testified at budget hearings earlier this year that cutting prisons will put communities in "serious jeopardy," due to security concerns. He said New York prisons are operating at 102 percent of capacity, with maximum security prisons at 122 percent. He also said prisoners are being forced to double up in cells that were originally designed to house one inmate. That situation, he said, could lead to more violence.

Eric Kriss, spokesperson for The Department of Correctional Services, says the correctional workers' tally doesn't take into account inmates who are in work release programs, in the hospital or in other disciplinary housing situations; instead they compare the number of prisoners to the number of beds that exist. "Even if by some miracle one day there wasn't anyone who needed disciplinary housing or to be in a treatment bed," said Kriss, "we would have the space for them because we would convert those beds to suit the general population."

The Department of Correctional Services has initiated a bed consolidation process to move staff and inmates out of sparsely populated prison wings. It estimates that move will save taxpayers around $8 million without costing any jobs. In fact, the three prison closures proposed in Paterson's budget would not necessarily lead to any layoffs, according Kriss. Staff at closed prisons will be offered jobs at other locations. The problem, he said, is that a lot of civilian (i.e. non-officer) staff may not want to move to a new area.

The Department of Correctional Services finds itself in the middle of the push to close prisons on hand and the drive to preserve every last one on the other. Department officials see themselves somewhere in the middle -- wanting to close some prisons that make fiscal sense to close but wanting to be able to respond should the inmate population increase.

Getting People Out of Prison

The Correction Association thinks an increase is unlikely in the near future. Instead, they think the state will see a drastic drop in the prison population thanks to the repeal of the Rockefeller drug laws. Department of Corrections officials say that with the repeal having gone into effect only a year or so ago, it is far too early to tell if a drastic reduction will materialize.

The Correctional Association is pushing for a number of measures that would leave more prison beds empty. For example it would like to see an increase in work release programs so that more inmates could transition back to a normal life. That, Kriss said, would require the legislature or governor to change a measure enacted during the Pataki administration that reduced the kinds of offenders who are eligible for work release. The Correctional Association is also pressing the legislature to reform parole so that minor violations would not land an offender in prison. The Association also wants to see the Parole Board increase the numbers of prisoners granted release on parole and awarded merit time based on behavior, so that prisoners who behave well get out more quickly.

Unsatisfied with the state's approach to shutting jails, the association plans on starting a board to review prison populations and determine which prisons should be closed. "We would like to start a community review board for prison closures. We need to see which prisons make more sense to close,"said Dunklee.

The Correctional Association also thinks money saved by closing prisons should go to creating opportunities in communities across the state. The group wants some money spent on community-based alternative sentencing programs, drug treatment and job training programs. As for the upstate communities, Dunklee said she thinks they need help. But she added, "Prisons should not be used as economic engines."

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