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Max Politics Podcast: Alvin Bragg on His Lead in the Manhattan DA Race


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Alvin Bragg (photo: @alvinbraggynyc)


June 23, 2021 - Max Politics Podcast: Alvin Bragg on His Lead in the Manhattan DA Race

Alvin Bragg, leading the Manhattan District Attorney Democratic primary election after the initial tally of in-person votes, joined the show to discuss his campaign and platform.

Listen to the conversation and let us know what you think -- on Twitter @TweetBenMax . You can listen to the show through the embedded audio below or download the episode wherever you get your podcasts, under "Max & Murphy," and listen to Max & Murphy live on Wednesdays at 5 p.m. on WBAI radio, 99.5FM or wbai.org.

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by Ben Max, Gotham Gazette
     

Read more by this writer.

Candidates for Manhattan District Attorney on Ending the 'Trial Penalty'


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Courtroom (photo: @nakrnsm)


Earlier this year, a report on use of the “trial penalty” -- the increased likelihood that a defendant, if proven guilty at trial, will face a harsher sentence than if they had opted into a plea deal -- in New York showed that its practice by district attorneys threatens the constitutional rights of defendants, limits law enforcement transparency, and weakens the overall integrity of the justice system.

The report, from the New York State Association for Criminal Defense Lawyers, in cooperation with the National Association of Criminal Defense Lawyers, then prompted the organizations to ask related questions of this year’s candidates in the wide open and highly-competitive and -consequential race to be the next Manhattan District Attorney. An eight-candidate Democratic primary for the seat being vacated by District Attorney Cyrus Vance, a Democrat, is being voted on this month by eligible Manhattanites.

The trial penalty is widely considered to be a driving force behind mass incarceration and wrongful conviction, serving as a loophole through which law enforcement can escape a vital check on its overreach. Its use can be driven by a number of factors including mandatory minimums and overcharging by lawyers who, faced with burdensome caseloads, want to save time by avoiding trials while also racking up as many convictions as possible. 

Released in late March, the report indicated that 94% of surveyed criminal justice practitioners across New York State acknowledged the presence of the trial penalty as a component of criminal proceedings in their county. Those responses were supported by data showing that in 66% of cases sampled, defendants had experienced a trial penalty.

The two organizations reached out to candidates in the race for Manhattan District Attorney for specific answers on how they planned to approach the issue if elected to the office, the top prosecutor and law enforcement official in Manhattan, and a position of national prominence.

Responses were provided by Democratic candidates Tali Farhadian Weinstein, Alvin Bragg, Tahanie Aboushi, Eliza Orlins, Dan Quart, and Lucy Lang, as well as Repuplican candidate Thomas Kenniff, who is awaiting the results of the primary before going head to head in the November general election. Democrats Diana Florence and Liz Crotty did not respond.

In their responses, nearly all of the candidates signaled opposition to mandatory minimums, but only Aboushi, Orlins, Quart and Farhadian Weinstein explicitly indicated that they would advocate for their repeal once in office. A universal refrain throughout the questionnaire was a need to establish a “Conviction Integrity Unit” or a taskforce of that kind by another name to specifically review wrongful convictions and instances of excessive sentencing. Candidates also reached consensus on the need to eliminate the use of bail as a means to coerce defendants into taking pleas as well as support for limited judicial oversight of plea bargaining and “second looks,” or the right to petition for a lesser sentence after a period of time.

Tahanie Aboushi, a civil rights attorney, outlined a plan to guarantee defendants their Sixth Amendment right by disclosing all discovery promptly, ensuring attorneys are fully compliant with the letter of Brady and open file, enacting a no-call list so witnesses, especially those in law enforcement, remain credible, and dismissing cases where law enforcement has violated constitutional rights.

Taboushi drew on personal experience in her response, revealing that her mother was charged to coerce her father into taking a plea deal. “She was nothing more than leverage,” Aboushi wrote, “the prosecutors did not care about what would happen to me or my siblings.”

When prompted about the underlying issues that perpetuate the trial penalty -- specifically unrestricted prosecutorial charging discretion, mandatory minimum sentencing statutes, and discretionary use of enhancements for prior convictions, Aboushi promised her tenure as district attorney would be marked by an “aggressive declination policy.”

She aims to charge the least serious offense possible and when enhancement in sentencing is discretionary, promised to never advocate for its application. She also presented plans to end the Early Case Assessment Bureau where overcharging is said to often take place, instead supervising each case and requiring approval for prosecutors wanting to deviate from her policies. 

Regarding previous cases in which the trial penalty was employed, Aboushi supports use of a Conviction Integrity Unit to review wrongful convictions, cases involving police or prosecutorial misconduct, extreme sentencing, or sentencing that “has long since ceased having any arguable public safety component.” The unit would then focus on remedies by requesting new trials, reducing sentences, and authoring reports that explore the major drivers of wrongful conviction -- sentence length, gender, race, and criminal history. 

With respect to the disproportionate likelihood of Black defendants under the age of 25 to receive the trial penalty, Aboushi indicated that her declination policy would extend to charges involving young adults, and that her office will focus on expanding  access to family court and Youthful Offender status for any young person who does wind up exposed to the adult judicial system.

“A guiding principle of our office will be that we must do all we can to stop the patterns of racism and bias that have been ignored for far too long,” Aboushi wrote, promising to stop prosecution on certain types of offenses if bias is proven in the application of the law.

Alvin Bragg, a former federal prosecutor and top deputy to the New York State Attorney General, explicitly stated in his response that he would not allow sentence recommendations after a hearing or trial to be longer than those offered prior. The district attorney office under his control would not, he said, rely on traditional metrics and would instead shift focus to a more holistic equation involving a review of the cost and racially-disparate impacts of incarceration as well as the effects on recidivism, public safety, and reentry.

On the underlying factors contributing to use of the trial penalty Bragg proposes minimizing pretrial detention, which can lead to more coercive plea bargaining practices and using incarceratory sentences in only the most extreme cases. He stopped short of promising an abolition to mandatory minimums, outlining the restrictions of the office, which bar him from doing so, but advocated using misdemeanor charges to avoid them and voiced opposition to sentence enhancement.

Bragg also shared that his plan to avoid violation of Brady -- a legal statute ensuring open disclosure of all exculpatory evidence -- involves a culture shift in the office away from “winning” and towards true justice. 

Bragg plans to deal with previously-tried cases by abolishing the current Conviction Integrity Unit and replacing it with his own Free The Wrongfully Convicted Unit which will start from scratch. In response to the racially-disparate use of the penalty he reiterated his status as the only Black candidate in the race, laying out plans to track disparities in real time and publish comprehensive data throughout the criminal process, and engaging “all the diverse communities within Manhattan.”

Lucy Lang, a former assistant district attorney in Manhattan and more recently head of a criminal justice institute, stressed in her response the importance of dealing with the “extensive backlog” of cases as a means of securing the Sixth Amendment rights of New Yorkers. On the driving factors of the trial penalty Lang promised to take mandatory minimums into consideration before indictment and to have a default policy against using conviction enhancements. Her response to any potential violations of Brady involves establishment of a new position -- the Prosecutorial Ombudsman. This would be an independent attorney acting as an oversight officer, reviewing allegations of misconduct and either submitting ethics complaints to the New York State Bar Association or identifying individual lawyers to the District Attorney for discipline or dismissal accordingly. 

Regarding previous convictions, Lang plans to create a new unit -- the Retroactive Review Unit -- which would review cases with hopes to reduce “extreme” sentences, account for growth while incarcerated, and improve reintegration. In response to racism in sentencing and the trial penalty, Lang proposed a number of in-office changes, requiring staff to be trained in the history of harm between the district attorney and communities of color as well as implicit bias. She promised to regularly visit incarcerated New Yorkers and to require all employed attorneys to participate in the Inside Criminal Justice course that places district attorney staff members alongside incarcerated students to study criminal justice and write policy together.

Eliza Orlins, a former public defender until jumping into the Democratic primary for district attorney on a decarceral platform, also advocates for plea deals to be made on the record and promised that sentences offered in bargaining would match those recommended after trial. She leaned into the political powers of the office as well, vowing to use the “bully pulpit” to abolish court fees. On the underlying causes of the trial penalty, Orlins proposed eliminating “unrestricted prosecutorial charging discretion” and is in favor of working with legislators in Albany to abolish mandatory minimums. She says the issue of discretionary use of enhancements for prior convictions is more nuanced but needs to be reformed in the way it is applied to defendants of different races. 

On violations of Brady, Orlins’ was straightforward: evidence will be offered immediately to defense, the right to prosecutorial review should be waived. She wants to establish a Conviction Review Unit with a broader approach, and promises to develop a notification system once in office that will identify when cases veer from policy. Those policies would warn against overly long sentences, sentences that deviate from the pretrial offer, and criminal charges not “preceded by an attempt at diversion.” Orlins indicated she would also use the CRU to address racial disparities and produce data analysis on how to identify them within the system. She also promised not to prosecute drug possession cases, which she says are often levied inequitably in communities of color.

Dan Quart, a New York State Assembly member, is proposing to fight the trial penalty by providing defense with a full, complete, and relevant discovery so all parties have the same information. He also promises greater flexibility and transparency during the plea bargaining process as well a commitment to decline prosecuting multiple misdemeanor charges and downgrade certain penal law offenses from felonies to misdemeanors. On the underlying causes of the trial penalty, Quart assured he would not as DA rely on unrestricted prosecutorial charging discretion or request cash bail. He also cited his experience in the legislature as uniquely qualifying for a working relationship aimed at eliminating mandatory minimums. 

In reference to violations of Brady, Quart argued that by declining to prosecute low-level offenses, he could free up resources to support assistant district attorneys in complying with discovery rules and securing thorough and effective work. On retroactive review of convictions, Quart doubled down on criticism of current Manhattan DA Vance and promised to work with the Legislature to reform penal law Section 440, which he argues would give greater flexibility to defendants claiming to be innocent or that their convictions were secured improperly. 

The racial disparities evident in use of the trial penalty need to be public knowledge, Quart argues, joining other candidates in the promise to share data on charging decisions and plea offers. He also set himself apart by vowing not to use the “enterprise statute” for drug sweeps or to use surveillance-based technology, citing both as tools that disproportionately target young men and boys of color.

Tali Farhadian Weinstein, a former federal prosecutor and general counsel to Brooklyn District Attorney Eric Gonzalez, stressed the need for robust investigation to secure a fair trial and dependence on the discovery changes New York enacted in 2019 to ensure defendants have the vital information needed to exercise their Sixth Amendment rights. To address the underlying causes of the penalty, Farhadian Weinstein says she will staff the office’s Early Case Assessment Bureau with only senior prosecutors whose judgement is more easily trusted in the charging of offenses that have been disparately applied. She also promised to support legislation eliminating mandatory minimums and sentencing enhancements, favoring instead a system that “allows for more discretion for prosecutors and judges, and avoids the imposition of severe penalties in cases in which public safety does not require such sentences.”

Farhadian Weinstein’s responses were generally shorter than her peers, making succinct points about “early and open discovery” regarding Brady violations and advocating “vigorously” for the creation of a “second look mechanism” meant to review and correct excessive sentences. To combat racial disparities, she committed to partnering with outside organizations who could review data on the differences in charging and sentencing. On sentencing generally, Weinstein promised to require the assistant district attorney to seek the minimum sentences, with supervisory approval necessary in order to seek a higher sentence. 

Thomas Kenniff, a former prosecutor and military veteran is the sole Republican candidate in the race. In response to the survey, Kenniff promised to address the trial penalty by “charging crimes proportionately as opposed to tactically.” His solution relies on an increased budget for the DA’s office and institutional defense providers, calling it “naive” to think a burdensome caseload doesn’t add pressure to keep cases out of trial, and arguing that appointing additional judges and creating additional trial parts will also aid the process.

On the issue of underlying factors, Kenniff states that both sentencing enhancements based on prior convictions and mandatory minimums have a place in crime deterrence but need to be sufficiently reviewed by supervisors and should not be used for upcharging. On Brady violations and transparency, Kenniff says his philosophy has always been “when in doubt, turn it over” and that the digital resources put out by the DA’s office could be made more user friendly for defense attorneys. 

Kenniff is a proponent of the use of the Conviction Review Unit to look at previously tried cases but says he will “be respectful of a court’s autonomy in matters of sentencing,” while reviewing instances where defendants were sentenced disproportionately, seeking redress “where appropriate.” In response to the data proving racial disparities in application of the trial penalty, he promised to evaluate each individual case and take into account all factors in mitigation at sentencing, ensuring there is supervisory approval in place before a sentencing recommendation is made to a court. 

The final section of the questionnaire prompted candidates to answer a series of yes or no questions. All seven -- six Democrats and one Republican -- answered in the affirmative when asked whether they would instruct their ADAs to provide full access to discovery and not just the potentially exculpatory evidence as well as whether they support proportionality between pre-and post-trial sentencing. Nearly the same consensus held true for a question on support for the repeal of NYCPL § 220.10(5), which limits the ability to resolve a case by pleading guilty to a lesser charge, with the exception of Farhadian Weinstein, who said she needed to study the proposal further. 

All candidates also signaled support for an increase in public defense funding, and an express prohibition within The Code of Judicial Conduct of retaliatory or vindictive sentencing for a defendant who rejected a plea deal and went to trial. When prompted about whether prosecutors should be prohibited from conditioning plea offers on a waiver of statutory or constitutional rights necessary for a defendant to make an informed decision on whether to plead guilty all candidates replied in the affirmative except for Farhadian Weinstein, who again said she needed more information.

A slightly more split reaction came on a question about whether it should be deemed unethical for a prosecutor to seek a higher sentence compared to a pretrial offer based on if the defendant litigates their statutory or constitutional rights, including the right to trial. Aboushi, Bragg, Lang, Orlins, and Quart all responded yes. Keniff said not in all cases, and Farhadian Weinstein said it also might be appropriate in some cases.

After Cuomo Veto and Pledge to Revisit, No New York Movement on Wage Theft Bill


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Gov. Cuomo with workers (photo: Kevin P. Coughlin/Governor's Office)


*This story was published in partnership with New York Focus.*

Since 2014, Jin Gou Ke, an immigrant from China's Fujian Province, has worked as a delivery worker for Tasty Hand-Pulled Noodles in Manhattan’s Chinatown. Paid a pre-tip salary of just $3 per order, far short of the city’s minimum direct cash wage of $12.50 an hour for delivery workers, he worked long hours to earn enough to pay for the room he rented in Sunset Park, Brooklyn. Typically, Ke said, he worked 11 hour days, 7 days a week, with just one day off each month.

Work conditions were unfriendly: during the height of the pandemic, he said, he was illegally barred from using the restaurant’s bathroom, forcing him to relieve himself in a nearby public park. He knew he was being paid and treated unfairly, he said, but was still happy to have work. 

“I’m just working, so I can earn a living and so I can eat,” he told New York Focus. “As long as I keep working, I’m fine.”

After the pandemic hit, the restaurant closed and Ke found himself temporarily out of a job. When it reopened in July, he was grateful to be back to work. But the relief was short-lived: by December, Tasty Hand-Pulled Noodles was increasingly relying on food delivery apps, and told Ke they no longer needed his services. Ke was fired—and never received the total wages owed to him, he said.

“I worked so hard for so many years and they treated me so bad,” Ke said. “ I exposed myself to the virus so many times going out every day and I did so much for them. It’s not right.”

Rampant wage theft was already supposed to have been dealt with. Last year, a coalition of workers’ centers, elected officials, and activists rallied around the Securing Wages Earned Against Theft Bill (SWEAT), which proponents say would give workers more power to fight back against exploitative employers.

Governor Andrew Cuomo vetoed that legislation in 2020, citing “technical aspects” that made it constitutionally fraught. In his veto message, the governor pledged to enact provisions achieving the same goals in this year’s budget. “I am constrained to veto this bill but I look forward to enacting the necessary protections for workers very soon,” he wrote.

Yet, flouting that commitment, the governor omitted wage theft entirely from his 2021 executive budget. Freeman Klopott, the governor’s budget spokesperson, declined to comment for this story. Klopott directed New York Focus to the state Department of Labor. A spokesperson there did not respond to questions about Cuomo’s inaction on wage theft, but said in a statement, “the DOL continues to aggressively crack down on bad actors who have wage and unemployment insurance violations.”

“It's been almost a year and a half, and he has done nothing,”said Sarah Ahn, an organizer with the Flushing Workers Center, which serves predominantly Chinese and Korean workers. “Meanwhile, workers are suffering more than ever.”

Assemblymember Linda Rosenthal, a Manhattan Democrat who co-introduced the bill along with State Senator Jessica Ramos, a Queens Democrat, agreed. “Without action to address wage theft, hardworking New Yorkers have become even more vulnerable to wage theft during this pandemic,” she said. “That's why it's vital that we pass the SWEAT bill again this session.”

Wage theft was not included in the adopted state budget, either—despite many prominent wins for progressives.

“Stuck waiting to be paid”
Even before the pandemic, as much as $1 billion in wages were stolen from New Yorkers annually, according to a 2014 study by the U.S. Department of Labor. A disproportionate number of the victims are undocumented workers, whose precarious legal status can make them especially vulnerable to wage theft and other workplace abuses.

Four workers centers across the state told New York Focus that they have seen a significant increase in wage theft cases since the start of the pandemic last March, corroborating recent research finding that low-wage workers face an elevated risk of wage theft during periods of high unemployment.

“Employers were using the pandemic as an excuse to not pay workers,” said Glendy Tsitouras, an organizer with the Workers Justice Project, a Brooklyn-based worker center that serves day laborers and domestic workers. “They would tell workers that something happened and that they will pay next week—but that never happened.”

In April of 2020 alone, Tsitouras said, her organization was flooded with between 30 and 35 cases. Pre-pandemic, they typically received around 15 cases a month.

Sarah Ahn described wage theft as a systematic way to maintain a permanent and insecure low-wage labor force.

“When we talk about minimum wage increases, a lot of workers think, ‘it doesn’t matter, my bosses don’t care what it is, they won’t pay me,’” she said. “Undocumented workers don’t have a right to work. They are literally an underclass that is criminalized for working. If workers speak out, they are threatened with ICE.”

Osmar Figueroa, a client of Tsitouras, said he was fired from his construction job with Cassway Contracting in December after he demanded nearly $4,000 in unpaid wages. 

A day laborer from Guatemala, he and 14 other construction workers labored nine hours a day, six days a week at a construction site in Manhattan, Tsitouras said. They were paid the first and third week, he said, but Cassway, a construction company, claimed there was no more money to pay them at the end of December, she said. When they refused to continue working without being paid, Figueroa said, all 15 men were fired and replaced with a new batch of workers. 

Out of a job and without cash, Figueroa struggled to make rent, buy food, or send money back to Guatemala.

“It was harder because it was the holidays and we didn’t have money,” he said. “My co-workers have kids, they have families and they weren’t able to buy gifts for them. They couldn’t celebrate Christmas because they didn’t have money.”

Guillermo Cruz, a Nicaraguan day laborer with KML Restoration Corp, a construction company, described a similar experience. After one of the owners of the company died of Covid-19 in May, the company claimed it was unable to pay its 10 employees, he said. 

Collectively, KML Restoration owed the workers $20,000 in wages, Cruz said. Although Cruz worked through the pandemic, risking his health, he was left with little to show for it. 

“It was terrible because we were exposed to the virus, but we did the work for the company and they used us to finish the work and not pay us,” he said. “I feel frustrated because I need to feed my family and pay my rent. I’m just stuck waiting to be paid.” 

In Buffalo, Mary Lister, an organizer with the Queen City Workers Center, is working with the former staff of the Hotel Henry Urban Resort and Conference Center, who are suing to reclaim nearly $800,000 in unpaid wages. In February, the hotel abruptly closed without settling up with its staff. 

“We have definitely seen a huge increase in the number of workers who are contacting us during the pandemic,” said Lister. “Many of them, like the workers at Hotel Henry, had first contacted a lawyer before contacting the workers center, but after seeing the limitations of the messed up legal system where even if they win, employers will be able to hide their assets, [initially decided not to file lawsuits].”

Cassway Contracting did not respond to New York Focus’ repeated inquiries. KML Restoration Corp could not be reached for comment. Hotel Henry declined New York’s Focus request for comment.  

Amy Liu, manager and daughter of the owners of Tasty Hand-Pulled Noodles, denied the allegations and said that the establishment has never employed Ke or any independent delivery worker.

“I never know this guy. I don’t know who you are talking about,” she said over the phone. “I never hired a delivery guy.”

Told that New York Focus reviewed checks made out to Ke from Tasty Hand-Pulled Noodles, Ke declined to comment. When reached again and offered another opportunity to comment on Ke’s allegations, Liu said, “I just know that he is a liar. That’s it.”

“Don’t have a shot at winning”
Even when workers file and win lawsuits against employers and are awarded stolen wages, they are often left unable to collect the money they are owed. As cases make their way through the courts, employers can take complicated measures to hide assets, for example closing their business and then reopening under a different name, to avoid having to pay up.

SWEAT, which was reintroduced by Assemblymember Rosenthal in January after Cuomo vetoed the original bill, would make it harder to evade court judgements by allowing a lien to be placed on an employer’s business or assets while a case is being heard, preventing fraudulent transfers and closures. To file for a lien, workers would have to show evidence in court that they are likely to win a wage-theft case.

The strategy is modeled on New York’s existing mechanic’s lien law, which allows contractors and suppliers who have gone unpaid on a construction project to file a lien to secure payment. Laws similar to SWEAT have been passed in states including Washington, New Jersey, and Virginia.

The difficulty of collecting owed wages leads many workers not to challenge wage theft, proponents of the bill said.

“Working-class people don’t have a lot of extra time or money to be throwing lawsuits around,” Lister said. “People really don’t want to come together if they don’t have a shot at winning. Without the SWEAT bill, it will be really hard for the workers to get the justice they deserve [even] if they do every single step they are supposed to do.”

When workers do file lawsuits, the difficulty of collecting owed wages often leads them to settle rather than taking their cases to court. A 2015 report on wage collection in New York found that “the majority of cases are resolved for far less than is actually owed due to the fear that a judgment for the full amount owed will never be paid.”

SWEAT has met forceful opposition from the business community. Many New York trade groups representing industries in which wage theft is rampant, such as the Business Council of New York State, the Manufacturers Association of New York, and the New York City Hospitality Alliance, say the bill would have a detrimental effect on small businesses and employment in New York State. Instead, they advocate for judicial review on all lien requests.

Ken Pokalsky, vice president of the Business Council of New York State, told New York Focus the bill would deprive business owners of due process. “It allows this lien on the personal property based on allegations before any actual facts are found,” he said.

He also took issue with the multiple definitions of employer in the bill that would force liens on employers who aren't actually paying the workers and therefore are not responsible for the theft. The bill would extend  personal liability to the 10 largest shareholders of non-public companies by making them liable for wages as well as for interest, penalties, damages, attorneys’ fees, and costs incurred by the employee.

“They don’t approve payroll, they don’t withhold payroll, but they happen to be in supervisory positions relative to the employee, and to us that makes absolutely no sense,” Pokalsky said.

Andrew Rigie, Executive Director of the New York City Hospitality Alliance, expressed a similar view. “We understand the positive intent of this legislation, but it removes due process for small business owners, mid-level managers and the investors in these businesses, by allowing a lien to be placed on their personal assets based on accusations, not legal findings,” he told New York Focus.

In his veto last year, the governor echoed these arguments, suggesting that the bill would provide “inadequate due process” for employers and that the bill “creates a broad definition of ‘employer’ that includes business entities, owners, and lower-level managers and subordinates.”

The Associated General Contractors of New York State, a leading opponent of SWEAT, has been a contributor to the governor, donating $137,675 to Cuomo campaigns. The governor's office has repeatedly stated over the years that campaign donations do not influence his government actions.

Refuting industry opposition, Sarah Ahn argued that the only party that is being denied due process is the worker. 

“What we have been fighting for is that there are no due processes for workers. What we do know is that it’s near impossible to collect on [wage theft] judgments.”

Rosenthal, the primary sponsor of the bill in the Assembly, agrees. “It [SWEAT] doesn’t increase the cost of doing business. The only employers who would be affected by this act are those who have committed wage theft.”

In the meantime, workers like Osmar Figueroa are hoping the law will eventually change in his favor. “I would like to see more support from the government and see laws passed like SWEAT that gives us real rights,” he said.

As for Jin Gou Ke, he has reached out to the Chinese Staff and Workers Center, a workers center in Chinatown, hoping he can launch a lawsuit against his former employer.

“As long as I have the energy, I will fight.”

*This story was published in partnership with New York Focus.*

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Amir Khafagy is a New York City–based journalist. He has written for publications including The New Republic, Vice, The Appeal, The Guardian, Curbed, The American Prospect, Bloomberg, and In These Times. Follow him on Twitter at @AmirKhafagy91.

Note: An earlier version of this article incorrectly stated that the Building Contractors Association (BCA) opposes SWEAT. BCA opposed somewhat related legislation specific to the construction industry, but did not take a position on SWEAT.

Max Politics Podcast: Breaking Down the Race for Manhattan District Attorney


Gotham Gazette: Breaking Down the Race for Manhattan District Attorney

(l-r) Top: Tahanie Aboushi, Alvin Bragg, Eliza Orlins, Tali Farhadian Weinstein; Bottom Liz Crotty, Dan Quart, Diana Florence, Lucy Lang


June 9, 2021 - Max Politics Podcast: Breaking Down the Race for Manhattan District Attorney

The Democratic primary for Manhattan District Attorney is one of the most important and competitive races happening this month. Two reporters who have been covering the race -- Jonah Bromwich of The New York Times and Deanna Paul of The Wall Street Journal -- joined the show to give an overview of the eight candidates and key dynamics of the race as voting nears.

Listen to the conversation and let us know what you think, on Twitter @TweetBenMax. You can listen to the show through the embedded audio below or download the episode wherever you get your podcasts, under "Max & Murphy," and listen to Max & Murphy live on Wednesdays at 5 p.m. on WBAI radio, 99.5FM or wbai.org.

Read more: Max Politics Podcast: Breaking Down the Race for Manhattan District Attorney

Max Politics Podcast: Why The Manhattan District Attorney Election Is So Important


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Manhattan DA Cy Vance (photo: Ed Reed/Mayoral Photography Office)


June 9, 2021 - Max Politics Podcast: Why The Race For Manhattan District Attorney Is So Important

Host Ben Max was joined by an expert panel for a discussion of the role of Manhattan District Attorney, calls for reforming the way the office functions and the larger criminal justice system, and the ongoing race to replace outgoing DA Cy Vance, which has a key Democratic primary happening this month among eight candidates. The guests include Rebecca Roiphe, a professor at New York Law School and former Manhattan prosecutor; Daniel Alonso, a litigation partner at Buckley LLP, former federal prosecutor, and chief assistant district attorney in Manhattan during Cy Vance’s first term; and Keli Young, the Civil Rights Campaign Coordinator at VOCAL-NY.

Listen to the conversation and let us know what you think, via Twitter @TweetBenMax. You can listen to the show through the embedded audio below or download the episode wherever you get your podcasts, under "Max & Murphy," and listen to the show live on Wednesdays at 5 p.m. on WBAI radio, 99.5FM or wbai.org.

Read more: Max Politics Podcast: Why The Manhattan District Attorney Election Is So Important

Latino Vote '21 Podcast: Queens, with Assemblymember Jessica González-Rojas


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Assemblymember Jessica González-Rojas (photo: @votejgr)


For the third episode of the Latino Vote '21 pop-up podcast, Assemblymember Jessica González-Rojas joined host Eli Valentin to discuss the Latino vote in Queens. Listen through the audio below or find this and other episodes under the "Max & Murphy" podcast stream wherever you get podcasts:


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Eli Valentin is a political analyst and author of the forthcoming book, Reinhold Niebuhr: A Political Life. On Twitter @EliValentinNY.

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Have an op-ed idea or submission for Gotham Gazette? Email This email address is being protected from spambots. You need JavaScript enabled to view it.

NYCHA’s Latest Rescue Plan Needs State Approval But That Won't Be Coming Anytime Soon


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NYCHA Chair Greg Russ (photo: Michael Appleton/Mayoral Photography Office)


*This story was published in partnership with New York Focus.*

With a week left in the legislative session, New York lawmakers shelved a city-backed plan that aimed to revamp 25,000 NYCHA apartments.

On May 21, with just ten working days to go in this year’s session, New York lawmakers added a major item to their docket: a bill that would overhaul how the New York City Housing Authority (NYCHA) operates tens of thousands of its public housing units, aimed at securing federal funds and private capital to tackle the authority’s $40 billion backlog of repairs.

Then, just weeks later, they shelved it. On Wednesday, State Senator Brian Kavanagh and Assemblymember Steven Cymbrowitz, chairs of the Senate and Assembly Housing Committees, said in a joint statement that they would not be advancing the plan this session.

“We have decided that further conversation, outreach, and negotiation are necessary before advancing legislation on this topic,” Kavanagh and Cymbrowitz said. “For this reason, we will hold the bill in committee for the remainder of the current legislative session…we look forward to continuing to discuss how best to meet the needs of public housing residents in the months ahead.”

The announcement puts in jeopardy NYCHA’s biggest revamp plan in years. 

Dubbed the Blueprint for Change, the plan seeks to reform how NYCHA manages repairs and construction, and, crucially, how it funds them. The plan’s main appeal, NYCHA says, is that it would allow the agency to raise more money — up to six times its current federal allocation — to pay for long overdue repairs. It would also put a new entity, the Public Housing Preservation Trust, in charge of those repairs: remediating lead and mold, fixing boilers, elevators, and stoves, and generally bringing apartments up to standard.

In the lead-up to the bill’s introduction, NYCHA sought to convince lawmakers of its urgency.

“Waiting is not an option for us,” NYCHA Chair and CEO Greg Russ told New York Focus in late May. “We’ve spent 25 years waiting on Congress…We have to act now.”

In the wake of the housing chairs’ announcement, a NYCHA spokesperson told New York Focus that the authority would work with legislators to pass the Blueprint in next year’s session. “We remain committed to Blueprint for Change, which we will further refine as we continue to engage with residents and other stakeholders,” the spokesperson said.

Many lawmakers, however, have been wary of Russ’ approach since the beginning, as it relies on transferring NYCHA apartments from Section 9 — traditional public housing — to the voucher program known as Section 8.

“I think, in essence, it would end public housing as we know it,” said Assemblymember Yuh-Line Niou, whose district covers more than a dozen NYCHA developments in the Lower East Side and Chinatown. “It’s a huge risk.”

Her concerns echo those of a vocal group of NYCHA tenant organizers, who see the Blueprint as too close to a scheme that has transferred thousands of units to private management, and fear the plan could further erode a rare bastion of truly affordable rents.

In recent weeks, NYCHA sought to accommodate some of their concerns, negotiating with lawmakers to strengthen tenant protections and significantly reduce the plan’s scope from the initial version introduced last year — scaling it down from 110,000 to 25,000 units.

Nearly half of New York City’s State Senate delegation, including progressives such as Gustavo Rivera and Julia Salazar, co-sponsored the revised bill. Longtime advocacy groups, including the Community Service Society and Legal Aid Society, have also embraced the plan.

As recently as May 25, Kavanagh, lead sponsor of the Blueprint bill, told New York Focus the legislation offered a “promising approach” to redressing NYCHA’s woes but indicated it was a work in progres.

An Alternative to Privatization?
With the legislature’s about-face, the Blueprint joins a string of faltering plans to raise much-needed cash for NYCHA under Mayor Bill de Blasio. 

As New York City’s public housing crisis has deepened over the last decade, de Blasio has placed much of the blame for the agency’s decline on long-term federal disinvestment, and turned to the private sector to fill in the gaps. In 2015, de Blasio introduced NextGeneration NYCHA, which included a wide variety of changes including plans to raise money for repairs by building private developments on “underutilized” NYCHA land and shift a few thousand units to private management. In 2018, as the authority faced a federal lawsuit over its failure to clean up lead and mold, came NYCHA 2.0, which aggressively ramped up the NextGen approach, scheduling 62,000 units to be transferred to private management under the federal program known as Rental Assistance Demonstration (RAD). Both of these plans, which include different versions of privatization, have faced stiff opposition from tenants.

The Blueprint would not reverse those earlier programs, but seeks to address NYCHA’s more than 100,000 remaining units. It is the brainchild of Russ, who took the agency’s helm in 2019 after leading the public housing authorities in Cambridge, Massachusetts and Minneapolis, where he oversaw thousands of RAD conversions. NYCHA announced the Blueprint in late July 2020, as New York was emerging from the brutal first wave of the Covid-19 pandemic.

At its core, the plan seeks to do what every other NYCHA plan has sought, and so far failed, to do: raise enough money to close the agency’s enormous repair backlog. NYCHA estimates that this would cost between $18 and $25 billion for all 110,000 non-RAD units, out of a total backlog of around $40 billion and growing.

What’s new about the Blueprint is how it seeks to raise that money: by declaring the tens of thousands of units “obsolete” in order to obtain a special kind of HUD funding, known as Tenant Protection Vouchers (TPVs), then “pooling” the vouchers and issuing bonds against them, effectively taking out loans to finance construction. NYCHA says this would allow it to fund $6 worth of repairs with every dollar it gets from the federal government.

“It’s an ingenious use of an existing HUD program,” said Victor Bach, a senior housing policy analyst at the Community Service Society (CSS).

Bach, who joined CSS in 1983 and leads an annual survey of NYCHA residents, said the Blueprint is the first NYCHA plan in recent memory “that really addresses the full capital deficit that the authority faces.” It would allow NYCHA to upgrade its dilapidated housing stock, he argued, even in the absence of major new federal funding sought by Congressional Democrats as part of President Biden’s infrastructure package.

Bach said he was disappointed that lawmakers had postponed the plan, and that NYCHA should keep the Blueprint up its sleeve given the uncertainties about federal funding.

“So far we haven't heard any other good, alternative ideas, other than Washington coming to the rescue,” he said.

The plan’s opponents, meanwhile, are celebrating.

“I’m glad they have recognized that we will not accept any plan that transfers us out of Section 9,” NYCHA tenant organizer Ramona Ferreyra told New York Focus. She and many other organizers see the Blueprint model as a Faustian bargain that would open NYCHA to backdoor privatization.

“Legally, Section 9 is the only bracket of housing that is public,” Ferreyra said. “According to Congressional statutes and HUD law…in order for housing to be determined public, it has to be within Section 9.”

“So anytime NYCHA says the Blueprint is public, they are lying,” Ferreyra said.

Ferreyra, who lives in NYCHA’s Mitchel Houses in the South Bronx, has spent so much of the last year organizing against the plan that her day job, running the clothing company Ojala Threads, has become “officially a hobby.” She first heard about the Blueprint last summer, when NYCHA “dumped this information” on tenant leaders in the leadup to the plan’s public announcement. She felt it raised more questions than answers, and joined a newly formed group called Residents to Preserve Public Housing, which had just started hosting weekly Zoom meetings to discuss the plan.

As the group’s network extended citywide, its opposition to the Blueprint grew. Its members, who now number about 40 according to Ferreyra, voted not to negotiate with NYCHA over the plan’s terms but to kill it. In December, seated next to her 89-year-old grandmother, Ferreyra was one of a dozen NYCHA residents who spoke at a state legislative hearing about the plan, all of them in opposition.

The Citywide Council of Presidents (CCOP), the elected group representing NYCHA tenant leaders across the five boroughs, is also fighting the Blueprint.

“We are vehemently opposed to it,” said CCOP senior member Reginald H. Bowman, who serves as the group’s legislative liaison as well as president of the Seth Low Houses in Brownsville.

“They’re trying to ram this through, because they have the resources behind them and the support of some of the political establishment,” he told New York Focus in late May. “They’re not listening to the legitimate resident government.”

Some tenant association leaders, meanwhile, lent the plan their support — with caveats.

“We’re living day to day not knowing if we’re going to have hot water, or any water at all,” Claudia Coger, Resident Association President at Astoria Houses, told New York Focus. “We don’t deserve that. We still pay 30 percent of our income on rent.”

“I’m not saying that it’s the best plan, but with the conditions we are sitting in now...we need some immediate action,” said Coger, who has lived in Astoria Houses for 68 years and also serves on the CCOP board, representing Queens.

“What happens if the buildings go into default?”
Advocates like Bach reject the idea that the Blueprint would privatize the units. Rather, he sees it as a “public alternative to RAD,” and says he would prefer to see the units currently in the RAD pipeline go through the Trust model. While he doesn’t support the idea of transferring the units from Section 9 to Section 8 in principle, he thinks that the difference in practice would be “nominal.”

Cea Weaver, campaign coordinator at Housing Justice for All, an advocacy coalition, largely shares this interpretation, if not Bach’s enthusiasm for the plan as a whole.

“I don’t believe that it’s privatization. I do believe that it’s financialization,” Weaver told New York Focus. Taken in context of the authority’s embrace of RAD under de Blasio, “the plan is a clear response to residents’ concerns.”

The revised bill includes a long list of tenant protections to make them “consistent with those afforded to a public housing resident,” according to the text. They include keeping rents at 30 percent of income; ensuring that any tenant required to move out for repairs has a right to return; guaranteeing tenants a right to organize; and maintaining succession rights for family members.

“It’s hugely, hugely improved from some earlier attempts to bring some money into the much-beleaguered agency,” Weaver said. “That being said, there are still some key things about it that are really concerning.”

Above all, Weaver highlights the plan’s reliance on debt and what she describes as inadequate protections in the event that the Trust were to default on a loan.

“The bonds are backed by rents, and the rents don’t cover the costs of operating the building,” she said. “What happens if the buildings go into default?”

Even if the buildings stay solvent, some lawmakers worry that NYCHA could wind up spending a large share of its funding to service debts. Assemblymember Harvey Epstein compares the proposed Preservation Trust to the MTA, which according to the state comptroller has spent 16 cents on every dollar over the past decade servicing its debts — a share that could reach 23 cents by 2023.

“You know who gets a lot of money off people who borrow money? It’s these large private equity companies and large venture capitalists,” said Epstein, who represents fifteen NYCHA developments in Alphabet City and the Lower East Side.

NYCHA chair Russ is confident that the agency has planned its borrowing to match its income.

“We’ve been very careful in estimating our leverage, and also how much money we think we can access if we move to the Tenant Protection Voucher model,” Russ told New York Focus.

The revised Blueprint bill includes provisions that would allow the state or city to intervene if there is a debt issue, and Russ sees little risk that lenders would seek to take over NYCHA property in the event of a default, citing a “tiered set” of legal protections.

“Investors are more likely to want us to give them a financing plan as opposed to taking the property, because they still want to make their return,” Russ said.

For Weaver, such financing plans are precisely where the danger comes in. NYCHA owns a huge amount of valuable land, she said, and even if bondholders aren’t interested in taking over the buildings, the debt could give them inordinate power over how to manage them.

“When a bond goes into default, the bondholder can renegotiate all the terms of everything related to the asset, which is what’s happening in Puerto Rico,” Weaver said. “If bondholders are in a position to take all of those tenant protections that are written into the land lease and just completely renegotiate them… I’d be worried that those protections are not going to last.”

Kavanagh stressed that “there’s nothing about this law that can be changed by a bondholder,” but said he was open to further strengthening the bill text.

One legislator, who asked not to be named, said that the bill’s proponents were considering a revision to ensure that in the event of default, New York City would be responsible for repaying NYCHA’s debt — removing any possibility of private bondholders rewriting terms.

Federal Funds
With the Blueprint shelved, all eyes turn to Congress, where Democrats are seeking a major cash infusion for public housing as part of President Joe Biden’s infrastructure package.

In its original outline, Biden’s American Jobs Plan proposes a $40 billion infusion in capital funding for public housing. Senate Majority Leader Chuck Schumer is proposing to double that sum, with the backing of Nydia Velázquez and other New York Congressmembers. Under Schumer’s proposal, about half of the funds would go to NYCHA.

Progressives, led by Senator Bernie Sanders and Congresswoman Alexandria Ocasio-Cortez, are aiming still higher with the Green New Deal for Public Housing, which seeks to fully retrofit and decarbonize the country’s decades-old, highly polluting public housing stock. First introduced in 2019, the bill was reintroduced in April with a funding goal of at least $100 billion.

Many residents opposing the Blueprint say NYCHA should have focused on seeking this kind of direct federal funding all along.

“Why is it that public housing leadership is not next to Chuck Schumer saying ‘Thank god, you’ve found a way to deliver the money within Section 9…How can we work on getting this done as quickly as possible?’” Ferreyra asks.

Russ says NYCHA has been “very supportive” of prospects for additional federal capital.

“It’s the first time in maybe forty years that anybody has really talked about funding, and we’re not going be looking away from that at all,” Russ said. “The model we’re proposing works on its own, and it also either complements or supplements anything we could get from the federal government.”

Among the revisions to this year’s Blueprint bill was language requiring the Trust to “adopt rules or regulations establishing sustainable design guidelines,” including criteria for converting appliances to electric and generating renewable energy, which Russ said made it compatible with a Green New Deal.

NYCHA emphasizes that the renovations would create hundreds of long-term green jobs, along with thousands of shorter-term construction jobs, and that the Trust would be mandated to hire NYCHA residents whenever possible, consistent with federal regulations.

“So Many Promises”
If these promises failed to win over many tenants and lawmakers, it boils down to one fundamental reason: trust.

“At this point, they’ve heard so many promises that were made, most people just don’t believe one way or the other in what is being said,” Assemblymember Latrice Walker told New York Focus. Walker represents Brooklyn’s Brownsville and Ocean Hill neighborhoods, home to a higher concentration of NYCHA residents than almost any other legislative district, and has experienced firsthand the effects of an earlier effort to convert public housing to Section 8.

Walker was a teenager in the late 1990s when NYCHA announced its first-ever demolition plan, targeting Brownsville’s Prospect Plaza Houses, where she lived. The development’s 12- and 15-story buildings were to be torn down and replaced with rowhouses under the Clinton-era HOPE VI program. NYCHA moved tenants out in 2000, with $21 million in HUD funding to begin the demolition.

More than a decade later, the hollowed-out buildings were still standing, while more than 1,000 residents were scattered across the city and beyond. It wasn’t until 2017 that new buildings were completed in their place — with just 80 apartments still in NYCHA’s hands.

“Ultimately I was displaced because of it,” said Walker. “A lot of folks, even though they had a right to return, the right to return was never realized.”

The saga inspired Walker to enter politics, with the goal of defending the rights of tenants like her family and neighbors. Prospect Plaza has remained an exception in NYCHA’s history, as New York, unlike many other cities, has left virtually all of its public housing standing. But it left its scars, and as NYCHA has cycled through a series of private-sector-oriented reform schemes to allay its chronic lack of funding, trust has continued to erode.

“So when I heard about the Blueprint, my spidey senses became awoken,” Walker told New York Focus. She was pleased with some of the changes introduced in the revised bill, but still “not totally sold on the initiative.”

“Until my community is on board with it, then it’s definitely not something that I can support,” she said. “They have to do a lot more groundwork, a lot more outreach to the residents to get buy-in.”

Barbara Brancaccio, NYCHA’s communications director, says the agency has already done extensive outreach for the plan.

“We’ve literally touched every household on multiple occasions through endless mailings,” as well as posters, social media, and email blasts, she said. The authority has also hired a consulting firm, NYC Action Lab, to canvas for the plan, at a cost of $250,000.

For Bowman, of CCOP, such outreach is no substitute for long-term collaboration with residents.

“That’s a campaign, that’s not consensus,” he said. “That’s like telling me, ‘Well, I ran $1 million worth of commercials on selling a product, but nobody bought the product.’”

“When The Dust Settles”
Many lawmakers said that with such fierce tenant opposition and so few days left in the legislative calendar, it wasn’t the moment to push the plan through.

“Everyone is in agreement with the fact that to keep doing the same thing and expecting a different outcome is insanity,” Walker said. But she wanted to see more dialogue before moving ahead.

Epstein, too, felt there had been insufficient resident input and that it would be inappropriate to “rush” the plan through the legislature.

“I guess neither Washington nor the legislature may have the same sense of urgency that we do,” lamented Bach, of CSS. Nevertheless, he hopes that Congressional Democrats will find a way to deliver the $80 billion they’ve promised. If so, “then there may be no need for a Preservation Trust, or it could be a modified program.”

“But if Washington comes short of that, then NYCHA will still have to go the route of conversion through the Trust or through RAD to meet its capital needs,” he continued. “So a lot depends on what happens when the dust settles in Washington.”

Perhaps just as decisive will be this month’s mayoral primary, which both Bach and Weaver worry could tip the scales back towards privatization.

“The outcome could put NYCHA and its residents even more at risk,” Bach said. “Having the Preservation Trust in hand would have made it possible for the Authority to address its entire capital needs regardless of who is elected.”

“I’m scared of the next mayor pursuing RAD at a much more aggressive pace,” Weaver said. The Trust model “is just so much better than that.”

Still, a spirited group of residents is as committed as ever to defeating the plan once and for all — and, in Ferreyra’s words, “end[ing] the political career of anyone supporting the Blueprint.” Residents to Preserve Public Housing is planning a “Day of Rage” against the Blueprint on June 10, and members are circulating a petition to remove Russ as NYCHA chair.

“He came in with this plan, and he thought we weren’t going to notice,” Ferreyra said of Russ. “I don’t think he was expecting this pushback.”

*This story was published in partnership with New York Focus.*

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by Colin Kinniburgh for New York Focus
@nysfocus
@GothamGazette

As Latest Reforms Head to Voters for Approval, Advocates Celebrate Passage of Extensive Election Package


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Voting (photo: Michael Appleton/Mayoral Photography Office)


The New York State Assembly on Tuesday approved two bills that would amend the state constitution to make significant changes to voting laws, and the proposals will now go to voters on this fall’s ballot.

One would allow voters to request “no excuse” absentee ballots, opening up voting by mail to all. The other would allow voters to register to vote and cast a ballot on the same day. The bills had been previously approved by the Senate, and passed by both houses of the State Legislature in the last session, and will now head to voters across the state for their approval or disapproval as questions on the 2021 general election ballot.

The two bills marked the successful passage of the last remaining items on an agenda first put forward by the Let NY Vote coalition in 2017. The coalition, made up of more than 175 organizations from across the state, had already succeeded in advocating for the legislative passage of early voting, more flexibility in changing political party affiliation, pre-registering 16- and 17-year olds to vote, consolidating primary dates, automatic voter registration, and for the restoration of voting rights to formerly incarcerated New Yorkers.

The passage of most of these many significant changes to New York voting and elections was made possible by the fact that Democrats took control of the State Senate, and thus both houses of the Legislature and governor’s office, through the 2018 elections and have made these reforms, many of them opposed by Republicans, among their top priorities.

“The Assembly Majority is committed to making it easier for voters to exercise their constitutional right to vote,” Assembly Speaker Carl Heastie, a Bronx Democrat, said in a statement on Tuesday. “These bills will increase accessibility to the polls and continue some of the safety precautions we began taking during the pandemic. As we see states roll back access to voting, New York will fight to make sure every eligible voter is able to have their voice heard.”

“Voting is an integral part of ensuring a functioning democracy, and part of our civic duty as Americans,” said Assemblymember Latrice Walker, a Brooklyn Democrat who chairs the election law committee, in a statement. “The Assembly Majority will continue working to ensure every eligible voter has access to the ballot – whether in person or by absentee ballot – and is able to have their voice heard.”

Activists from the non-partisan Let NY Vote coalition celebrated the passage of the bills. “Our work is not done, but right now, it is a little bit easier to vote in New York," said Sarah Goff, deputy director of Common Cause New York, in part, in a statement. Amanda Blair and Amanda Richie, co-founders of Brooklyn Voters Alliance, said in a statement that New York is “one step closer to becoming a beacon for democracy." Murad Awadeh, executive director of the New York Immigration Coalition, noted, “Newly naturalized voters, in particular, can finally navigate what was once an outdated and opaque voter registration process.”

Despite its reputation as something of a progressive state, New York had, until recent years, among the nation’s most archaic election and voting laws. In the 2016 presidential election, the state ranked 41 out of 50 states for voter turnout. Voting rights activists had long pointed out that though New York did not undertake any overt attempts to discourage voter participation like some Republican-led states, its laws effectively led to passive voter suppression. Roadblocks included the split Legislature as well as the fact that many entrenched Democratic incumbents have been more than happy to leave the suppressive system in place.

After years of languishing before the Legislature, election and voting reforms were quickly ushered through when the Democrats grabbed control of the state Senate amid a “blue wave” in 2018. At the forefront of the reforms were newly elected progressive Democrats in the state Senate, who had replaced more moderate members of their party who had caucused with Republicans under the banner of the breakaway Independent Democratic Conference.

For instance, the state had the earliest deadline in the country for switching party affiliation to vote in an election – it was roughly six months prior to primary election day before it was shortened in 2019 to just about ten weeks. Early voting had been in place in 37 other states before New York approved it earlier that same year, while also consolidating state and congressional primaries that had been held on separate dates, discouraging turnout. Sixteen other states and Washington D.C. had already approved automatic voter registration before New York passed it into law in December 2020. And just last week, Governor Andrew Cuomo signed into law a bill that restored voting rights to people released from prison.

There are still voting and election reforms some would like to see out of Albany, including reforms to how state and local boards of elections are structured and operate.

The coronavirus pandemic lent added urgency to expand access to voting. Through executive and legislative action, voters saw expanded early voting hours and easier access to absentee ballots. If the ballot referenda should pass in November, New York will join 38 other states that now allow no-excuse absentee voting, and 18 states and D.C. that already have same-day registration.

"If approved by the voters this fall," said Betsy Gotbaum, executive director of Citizens Union, in part, in a statement, "these reforms will build on the positive work that has been done in Albany over the past years to expand and protect the right to vote and make it easier for New Yorkers to participate in the democratic process."

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by Samar Khurshid, senior reporter, Gotham Gazette
     

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

A Year Later, Few Essential Workers Have Received Restitution for Getting Covid on the Job


2 as few newyorkers awarded

Workers at work (photo: Ed Reed/Mayoral Photography Office)


When state and city health officials closed down non-essential activities last spring to prevent the spread of the new coronavirus, they acknowledged the heroics of people who had to continue to report to work, to operate the hospitals, food counters, and buses that kept New York vital. Yet while the vast majority of the likely hundreds of thousands of New Yorkers who contracted COVID-19 on the job are eligible for workers' compensation, most have not applied and only a fraction of those have received it.

In addition to the physical damage, the virus has taken a financial toll on many workers, especially in low-wage industries, who have lost income or jobs and incurred steep medical costs after becoming infected. Many are struggling with debt alongside symptoms of “long covid” even as public attention shifts to reopening.

"The bus drivers, the subway drivers, the public transit workers, these are people showing up, leaving their family — as nervous as you are. But they are doing their jobs," Governor Andrew Cuomo said at a press briefing in late March 2020. 

"We have nurses, doctors -- these people are heroes -- they're putting their lives at risk. At least get them the right equipment," he said on CNN that same day. Cuomo had been imploring then-President Donald Trump to invoke the Defense Production Act to manufacture masks and surgical gowns, which were in short supply.

Over 2 million COVID-19 cases have been reported statewide in New York and at least 52,000 people have died, a large portion of whom are in face-to-face industries and from working-class communities. A recent study from the New York Committee for Occupational Safety and Health (NYCOSH), a workers' safety advocacy group, estimated as many as 250,000 workers are eligible for workers comp for contracting the coronavirus but only about 21,000 have applied. Of those, fewer than 2,100 have received determinations from the New York State Workers' Compensation Board, the report states.

Lawyers and unions representing workers say the high burden of proof and systemic problems with the Workers' Compensation Board, a body appointed by the governor to administer the state's restitution laws, prevent many people from receiving benefits. Among the biggest issues named by advocates is a dearth of public education around benefits, poor accommodations for non-English speakers, and a decades-long reduction in initial hearings for injury claims.

"The Workers' Comp Board in New York State has a history of not doing the appropriate amount of outreach to workers about their eligibility for workers' compensation," said Charlene Obernauer, executive director of NYCOSH, in an interview. What outreach has been done has not been "enough to really significantly showcase that this system is one that you can apply for if you had COVID-19," she said, suggesting the state fund community-based organizations to reach a wider section of the population with education around workers’ rights.

Workers have two years from the time they are injured -- or get COVID-19 -- to file a claim. Successful claims can lead to a portion of lost wages being restored and cover medical expenses related to the on-the-job injury. In the event that a workplace injury is fatal, family members may receive a percentage of income and money towards funeral expenses.

A Workers' Compensation Board spokesperson said the body has gone beyond its legal mandate to provide outreach to workers, labor unions, healthcare providers, and insurers through webinars and social media. The board has issued multiple guidance documents specifically for filing covid-related claims and has published “frequently asked questions” and answers in eight languages and an instructional video in English and Spanish. The spokesperson told Gotham Gazette the Workers' Compensation Board has made efforts to identify and contact family members of people who died from a work-related COVID-19 infection.

Many people who contracted COVID-19 have a hard time proving they got it at work and that they had the virus at all, Obernauer said. It can be especially difficult for people who were infected at the beginning of the pandemic when testing was limited and guidance from Cuomo and Mayor Bill de Blasio and many businesses advised employees to quarantine at home if they had symptoms.

The Workers' Compensation Board has ruled that workers can receive benefits if they can demonstrate that they worked in a place where COVID-19 was "prevalent." According to a spokesperson, a worker needs to show a positive test result or a report from an authorized medical provider. There are about 25,000 board-authorized providers in New York State, far fewer than the number of active physicians, which numbered around 73,000 in 2018, according to the American Association of Medical Colleges.

Last week Cuomo signed the New York Health and Essential Rights Act, or HERO Act, to create enforceable standards for businesses related to testing, social distancing, masks and other personal protective equipment, disinfection, and other precautions.

Even when people do have the documents, they can get tied up in Board proceedings. It can be months for filers to receive benefits, during which time bills can pile up.

Delita Glori-Feri is a critical care nurse at Montefiore Medical Center in the Bronx who got COVID-19 in March 2020 at the peak of the pandemic. She had been working with covid-positive patients and was soon admitted to the ICU herself, where she was given high levels of oxygen. Delita was out of work for 11 months before returning, she said in a phone interview.

She applied for workers' comp and received a favorable determination from the Workers' Compensation Board, she said. But Montefiore's insurers appealed the decision, claiming she contracted the virus from her husband. She said she submitted more evidence through her lawyer and is now waiting for another ruling.

Delita still gets short of breath but has used up her sick leave and said she worries what will happen if she needs to take more time. She said she's started getting calls from collectors about her ICU stay last year but no final word from the Workers' Compensation Board.

"I would like the Workers' Compensation Board to act on it as soon as possible, not just for me but for those other nurses," she told Gotham Gazette. "We kind of gave everything to provide service to take care of the people of the community or the patients going to the hospital."

Advocates are pushing for COVID-19 to be designated an occupational disease by law, which would in effect enshrine the prevalence standard, which is currently applied at the discretion of the Workers' Compensation Board. A bill in the State Legislature would create a host of applicable occupations in health care, transportation, food service, retail, hospitality, and other industries.

Speaking at a press conference last week hosted by NYCOSH, the bill's sponsor and Senate labor committee chair Jessica Ramos, a Democrat state senator from Queens, said the legislation would invite "state government to make a clear and meaningful investment in helping these workers seek and obtain the economic relief that is justly owed to them for having risked their lives and quite frankly the lives of their family members when they got home."

As a practical matter, the Workers' Compensation Board's prevalence standard already achieves some of these effects, but legislation would make it permanent and help deter frivolous objections from insurers, said Robert Grey, who authored the report in collaboration with NYCOSH and is managing partner of Grey & Grey LLP, a firm representing injured workers.

"You've got a situation where the employers and insurers are disputing 7 or 8 out of 10 cases and they're only winning one in a thousand and yet they continue to do it," he said. "Hopefully, if the presumption statute were passed it would reduce the incentive for insurers to be contesting these cases because they would understand that they're not going to win them."

But "getting the presumption written into the statute would not change the outcome of any of the cases we've seen so far," he noted.

NYCOSH is also advocating for a return to initial hearings, which the group argues the Workers' Compensation Board should hold for all workers when a claim is filed in order to ensure the worker is well-informed of their requirements and the board of the details of their case. A bill in the State Legislature would require at least one hearing for each claim, but it has stalled in committee.

The Workers' Compensation Board spokesperson said the board sent notices to all COVID-19 claim filers that a medical report was required.

Limited translation and interpretation services may have deterred potential covid claimants, many of whom work in industries predominantly occupied by immigrants and non-English speakers, advocates say. Ramos carries legislation to require the Workers' Compensation Board to translate all materials into the six most common languages spoken in New York along with translation services and a broader language access plan. Another bill requires hearings be recorded by a stenographer and provided to filers in their native language.

"This can be an issue with Spanish but it's also really an issue in communities [that] are not one of the top six languages in New York State," Obernauer said. "We work a lot with Nepali workers, for example, you would be hard pressed to find materials in Nepali on the system."

Advocates are concerned that workers may face retaliation from their employers when seeking restitution for workplace health costs, despite laws against it. The Workers' Compensation Board is empowered to issue penalties and order employers to restore jobs or lost wages for violations. The board does not track how many determinations of retaliation or discrimination it makes, according to the spokesperson.

"Whether it's the Workers' Comp Board doing it administratively or whether it needs to be legislation is a debate, but either way there needs to be some additional level of protection for workers so they're not able to be retaliated against," Obernauer said.

Advocates say there is little New York City can do absent state action. But as a large employer, according to Grey, the city government itself has been far more lenient than private hospitals and other employers in challenging COVID-19 claims. "In the 9/11 case, the city was probably far and away the worst actor," he recalled, "in covid cases it's one of the best."

"I'm not saying that's good," he added.

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by Ethan Geringer-Sameth, reporter, Gotham Gazette
     

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During Pandemic Peak, Psychiatric Patients Were Rushed Into Institutions


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A state psychiatric hospital (photo: Office of Mental Health)


As New York State hospitals began to fear the worst last spring -- that the pace of the coronavirus would overtake their ability to discharge patients and clear beds -- they had to decide what to do with people being admitted for acute psychiatric care.

In the second week of March 2020, only 325 New Yorkers had tested positive for COVID-19 but images from abroad and the pace of infection outlined a worrying forecast. By the end of the week, New York would confirm its first casualty from a virus that has deeply strained the health-care system and claimed more than 51,000 lives statewide.

At the time, Governor Andrew Cuomo and state health officials were pressuring hospitals to increase capacity, suspending rules and regulations and certain patient protections to help them do it. Among the lifted statutes was Section 517 of the state's Mental Hygiene Law, which gives due process rights to psychiatric patients: namely that they be given notice before being transferred to another facility and a chance to appeal the decision. It was an obscure addition to a long list of suspended laws contained in one of the governor's first emergency orders. It would be two months before it was quietly reinstated.

While Section 517 was suspended, Gotham Gazette has learned, at least 366 patients were admitted to state-run psychiatric institutions, where check-in can be a black hole and the length of stay is dictated by doctors and a judge. Many of them were transferred from hospitals scrambling for beds, sometimes infected with COVID-19, according to people with knowledge of the situation. The true total is almost certainty greater based on exceptions to the data provided to Gotham Gazette.

The flow of patients from hospitals to psychiatric institutions represented a 10% increase in admissions to the latter from the same period -- March 12 to May 8 -- the year before, and a 22% increase from the two-month span immediately prior, according to data provided by the New York State Office of Mental Health (OMH) after a Gotham Gazette inquiry. OMH only provided admissions data for adult, non-criminal institutions, and did not include nine of its children and so-called "forensic" facilities, which are not covered by Section 517.

"What is the surge capacity? Getting the existing hospitals to hold more people," Cuomo said at a press briefing broadcast from the State Capitol on March 17, 2020. "Right now there are rules and regulations about how many people can be in a hospital, how many people per room, how many square feet per bed, et cetera."

"That's for normal operating conditions. These are not normal operating conditions," he said, flanked by his health commissioner, Dr. Howard Zucker, and other top aides.

The operation to move patients to state-run psychiatric facilities spanned multiple city and state agencies and private health-care providers. Under state guidance, people with mental health needs from public and private hospitals and the New York City Department of Correction were offloaded to OMH institutions. A quarter of the 366 admissions came from New York City Health + Hospitals, the city's public hospital system.

During that time, the virus festered in psychiatric institutions. It tore through wards, killing at least 30 patients and seven staff by the end of April; by February 2021, 58 patients in state psychiatric institutions (49 confirmed, 9 suspected) had died. Rates of death and infection in the facilities far outpaced other congregate settings, like prisons, where the virus was known to thrive. Studies show people with mental illness are more susceptible to getting infected and having worse outcomes than the general population. People entering inpatient settings often have underlying illnesses, skew older than people in prison and have fewer restrictions, which posed particular challenges for patients and public health officials.

“Since the start of the COVID-19 pandemic in March 2020, OMH implemented numerous infection control measures and safety protocols to protect the health and well-being of our patients and staff," said OMH spokesperson James Plastiras, in an email to Gotham Gazette. "These measures allowed us to prevent serious outbreaks at our facilities, even while we doubled admissions during the peak surge of the pandemic, including accepting COVID-positive psychiatric patients, to help general hospitals repurpose psychiatric beds to treat COVID-19 patients.”

Plastiras would not say how many transferred patients had COVID-19 at the time, nor provide information on patients' ages. It is unclear if any people were transferred into psychiatric institutions who otherwise would not have been. OMH and New York City Health + Hospitals say all transfers were ‘clinically appropriate.’ Also unknown is how many patients objected to being moved because OMH does not keep those records. A Health + Hospitals spokesperson wouldn't say either but told Gotham Gazette that staff tried to ensure patients understood what was happening to them.

There has been no oversight of OMH inpatient facilities by the State Legislature's committees on mental health since the start of the pandemic. Assembly mental health chair Aileen Gunther and Senate chair Samra Brouk (who entered office in 2021, after the first covid peak) did not provide comment for this article despite multiple requests. Inquiries to the state Department of Health were referred to OMH.

While a typical psychiatric stay at a general hospital can last up to two weeks, it usually takes more than a year to secure release once admitted to a state psychiatric hospital run by OMH. Being institutionalized comes with stigma on the outside and it is often considered in future psychiatric evaluations as a factor in holding someone.

The average length of retention at psychiatric institutions for patients discharged in 2020 was 429 days, or 14 months -- 60 days longer than the 2019 average. Lawyers representing OMH "clients," as they are sometimes referred to, say patients often fight to secure their release from the moment they arrive. It is unclear how many patients admitted during the peak are still in OMH facilities.

Contact with people inside institutions can be difficult. It's common for wards to only have one or two phones shared among dozens of patients, congregating endlessly (a potential source of covid spread during the peak) to contact the outside. At least at some facilities, lawyers for Mental Hygiene Legal Services, a branch of the state court system that represents OMH patients, are still not allowed to visit their clients in person, even as other services have resumed, which some say can hamper cases and lead to delays in patient release.

Inpatient psychiatric institutions like the ones run by OMH are intended for people with severe mental illness, like schizophrenia or bipolar disorder, who are unable to manage symptoms or who may be a danger to themselves or others. While the goal of a general hospital setting is stabilization, OMH facilities are meant to provide chronic care. They also house people who are found unfit to stand trial in criminal court, or who plead guilty by reason of mental illness. Admission may be voluntary or involuntary, and sometimes doctors seek transfers as a stepping stone to securing a limited number of state outpatient residences, which come with supportive services. But once admitted, even voluntarily, it is difficult to get out. Judges, after listening to a doctor's recommendation, can prolong retention for increments of six months or longer until the next hearing is scheduled. The process can go on indefinitely.

‘Once You Get in’
“This place is not going to help me," thought Emily when she was admitted to Pilgrim Psychiatric Center, an OMH facility in Brentwood, Long Island, in January 2020 as she recalled the scene in an interview a few months later. She had sought a voluntary transfer to the inpatient facility from St. Catherine's Hospital, a general hospital nearby where she had been in recovery for months following a suicide attempt that put her in a coma. (Gotham Gazette has changed her name here to protect her privacy.)

It was shortly after New Years Day, weeks before widespread fears of the novel coronavirus. Emily would be held for ten more weeks under the orders of a judge and at the behest of a physician, acting as an expert witness, who she said had seen her only once, for 15 minutes, before rendering his opinion that she was a danger to herself and depressed enough to need to be committed.

During her time inside, the pandemic engulfed the institution. Pilgrim, one of the facilities that took patients from New York City hospitals, saw at least ten patients die from COVID-19 by June, the most of any OMH center.

Emily said the conditions were worse than at St. Catherine's. She spent most of her time sleeping or sitting in a chair with occasional therapy sessions and little else but the incessant light of a television set. When the pandemic hit, from what she could see, patients were quarantined per ward but hospital staff travelled between units and to the outside world.

"Once I got in Pilgrim I realized it really wasn't a better place to be and I wanted to get out. And then they said, 'No, you can't leave,'” she said over the phone a few weeks after she was released last April. "You can go in voluntarily and then they'll decide to change you to involuntary, and that's what happened."

"Once you get in they don't just all of a sudden let you out," she said.

Within 72 hours of admittance, Emily had requested to be discharged. Instead a court date was scheduled two weeks out, she remembered, and she was given a lawyer from Mental Hygiene Legal Services, the state-provided counsel.

"That's pretty much the system. They're going to decide when you leave," she said later. Pilgrim discharged Emily to an outpatient residence in early April without a second hearing. A ten week retention is one of the shorter psychiatric holds; it is not usually that easy.

Joseph and his mother have been trying to get his older brother, Pete, out of OMH institutions for close to a decade, after he was put under a criminal hold for trying to kill himself by setting his bed on fire in 2010. Joseph has maintained the suicide attempt was due to a change in antipsychotic medications that Pete's doctors quickly reversed. After a few years they secured a transfer from Rochester Psychiatric Center, a forensic facility, to Buffalo Psychiatric, a civil one. Since then, they have struggled to make progress. (Their names have been changed for privacy.)

Joseph said the hospital has sometimes increased Pete's medication before hearings, making him appear enfeebled -- something lawyers working with OMH clients have confirmed doctors and staff do, ostensibly to reduce the risk of outbursts in court. "Now they got him sitting there and he's drooling. It's like they're deliberately overmedicating him just for the court hearing," Joseph said, recalling an episode. "I mean we visited him every week and he never drooled."

They worry about Pete's ability to navigate conversations with his attorney, who Joseph said has done as much to keep him institutionalized as the prosecutors on his original charges. The Mental Hygiene Legal Services attorney appointed to his case had not gotten an independent medical exam for Pete at three separate hearings, Joseph said, instead relying on testimony from the doctors at Buffalo Psychiatric and patient records. Joseph and his mother want to find a private attorney but they don't know how they will pay for it. The pandemic has only made his situation more difficult, closing Rochester Psychiatric to visitors and cutting most contact with his brother.

At the last hearing Joseph attended before he spoke with Gotham Gazette last April, he recalled the judge saying, "Well, I listened to your testimony," addressing Pete directly, "and I've listened to the expert. I have to listen to the expert."

To Joseph, the system was operating backwards. "Why even have a hearing if you don't have your own expert, which is what the [independent medical exam] does for you? That was just a joke," he told Gotham Gazette.

Due process issues like the ones Joseph has alleged appear common for mental health patients under state custody. Those problems have persisted during the pandemic.

Norman Siegel -- the civil rights attorney who has represented high-profile psychiatric cases -- believes having judges, OMH representatives, and MHLS attorneys all employed by the state creates conflicts of interest and means orders of retention are often rubber-stamped. "You have a right to request a hearing...But the hearings themselves are not really fair," he said in a phone interview.

"The script is already written. The doctor -- and in some cases the doctor relying on information that was provided on the [medical] record by a non-doctor -- sometimes gets up and reads what's in the record for the court record. And the patient who was challenging it, even if they have a Mental Hygiene Legal Services lawyer, very rarely has a doctor, a psychiatrist to counter that situation," Seigel said.

"If you're going to be independent to represent people against the state and the state's funding you, that's a problem," he added after acknowledging the positive impact MHLS lawyers had in previous cases he's been involved in.

No Mental Hygiene Legal Services lawyer would speak on the record for this article; a spokesperson said they have a policy of not talking to the press beyond basic explanations of what the agency does.

Judges often ask patients to be taken from the room before a reading an unfavorable verdict. At a day of hearings last June (after Section 517 had been reinstated) for patients at Gracie Square Hospital, a private inpatient facility attached to New York-Presbyterian health-care system on the Upper East Side, New York State Supreme Court Judge Douglas Hoffman asked a patient to leave before remanding them.

"I always felt that that practice itself showed a bias because if that's in your mind, that the patient sitting there is a danger to themselves or others, how can you be really neutral and objective," Siegel told Gotham Gazette.

Transparency in these types of proceedings is limited. Even in noncriminal psychiatric cases, judges can act punitively with little recourse from patients. With hearings held virtually because of COVID-19, court actions were able to unfold in the shadows.

The hearings, which are supposed to be open to the public, that day in June were held virtually with a conference call option. In the afternoon, after Judge Hoffman apparently realized there was an audience, he disconnected callers he didn't recognize as hospital staff and patient lawyers.

"I want to make sure that people's privacy is protected," Hoffman told the court clerks. "We have to find a way of preserving people's privacy because this whole day people were on the call and we have no idea who they are."

Some of the hearing spectators told the judge they were attending on behalf of a particular patient who had yet to go before the judge. When it was the patient's turn, Hoffman punished him.

"OK, you know what, it's totally improper they've had access to this. Your case is going tomorrow. Next case," he growled, not letting the patient speak. "Totally improper to be on the line while these other hearings are taking place."

Sometimes patients are held as a matter of housing, which for the most marginalized New Yorkers became harder to secure during the pandemic.

Daniel Rosen, an attending psychiatrist at Gracie Square, sought a brief extension of custody for one patient during that day of hearings in June. "The problem is that she's homeless and we need to discharge her to shelter," he explained to the judge. "We've had a lot of difficulties with shelters taking patients from hospitals because of the covid situation and it takes a few days normally and to have a shelter referral. Sometimes it gets pushed back and a third day is reasonable to have."

Often patient holds are much longer and can be extended indefinitely. Arthur (his middle name) has been on a forensic ward in Rochester Psychiatric since 2019, having accepted a plea deal for 2016 charges of contempt and conspiracy. The charges -- the most serious of which involves making a phone call in violation of a restraining order -- are class E felonies for which the maximum sentence in New York is four years imprisonment. Between an Erie County jail and his court-ordered hold at Rochester Psychiatric, Arthur has been in a carceral institution for five years now with no end in sight.

"The single worst mistake I've ever made in my life was taking this plea," he said in a phone interview from a unit in Rochester Psychiatric.

The Kafkaesque element of trying to get out of an institution that both holds people and catalogues their behavior can be maddening. "Its biggest problem is the bureaucracy...It's an almost impossible maze to get out of and it's just disheartening," Arthur said.

Last fall, a second COVID-19 wave moved through Rochester Psychiatric and other OMH facilities. Arthur was concerned about what precautions the staff was taking but said he could not do much to change his surroundings. "You can't really raise too much awareness to things that they don't really want you to raise awareness to because then you are symptomatic."

Arthur's hearings had been continually delayed throughout the pandemic but he had one scheduled for early May. He was hoping it would give him freedom. When he's out he wants to create a non-profit dedicated to raising awareness about mental illness and psychiatric institutions, he said.

The Scramble for Beds
Last March, as COVID-19 cases began ticking upward in New York, reports were widespread of Italian hospitals overflowing and turning away sick people to live or die at home. To prepare for the eventuality of an overwhelmed hospital system, Governor Cuomo declared a state of emergency and began signing tranches of executive orders to compel swift action from hospitals. Days earlier, at Cuomo's request, the State Legislature approved an expansion of the governor's emergency powers and had taken few, if any, public actions to block any executive order. (In March 2021, in the wake of multiple scandals involving Cuomo's alleged sexual misconduct and misrepresentation of nursing home residents’ covid-related deaths, the Democrat-led Legislature voted to strip the Democratic third-term governor of some of that power.)

On March 12, five days into the state of emergency and before the state's first confirmed covid-related death, Cuomo suspended Section 517 of the Mental Hygiene Law -- eliminating patients' right to notice and appeal before being admitted to OMH custody. In an open letter to President Donald Trump published in The New York Times three days later, he laid out a frightening scenario: "You must anticipate that, without immediate action, the imminent failure of hospital systems is all but certain...States cannot build more hospitals, acquire more ventilators or modify facilities quickly enough," the governor wrote.

New York had 53,470 beds and only 3,186 of them were equipped for intensive care. If projections held, the state would need 110,000 beds -- more than double -- to treat people sickened or dying of COVID-19, Cuomo told reporters on March 22. The next day the State Department of Health cancelled all elective surgeries and mandated hospitals submit plans to increase capacity by at least 50% with a goal of 100%.

Hospitals, especially in urban areas, discharged the patients they could and converted any available room into bed space. As much as possible, hospitals would only admit the most critical patients.

People hospitalized with acute mental health challenges who could not be discharged -- either because they weren't stable or didn't have a safe environment to return to -- were sent to the state's psychiatric institutions, run by OMH, for long-term care, according to hospital administrators. Health + Hospitals and OMH officials claim patients referred to the state met OMH's admission criteria.

As intubation rates of covid patients rose, so did the pace of discharging patients. "Discharge rate...that by and large is going up. People come into the hospital, stay for a period of time, number of days, and then they move on," Cuomo said on March 30, the day the Javits Center emergency field hospital began taking patients.

Around this time, OMH created a centralized referral system run through its headquarters in Albany "[t]o streamline admissions at state-run facilities," Plastiras, the OMH spokesperson, told Gotham Gazette.

"All referring facilities in the NYC, Long Island, and Northern NYC suburbs submitted their referrals for review by the Central Office Admissions Team," he wrote in an email. "Accepted cases were then designated to Downstate Psychiatric Centers that could accommodate the clients." Patients had to be referred with a COVID-19 screening form with questions about exposure, test positivity, symptoms, and comorbidities. Plastiras said new admissions were isolated or quarantined depending on the patient's status.

Because of the scarcity of COVID-19 swabs at the time, widespread testing was not being conducted and there were no reported positive cases sent to OMH in March and April 2020 from New York City public hospitals, according to a Health + Hospitals spokesperson.

While patients normally spend two weeks in hospitals before being transferred, if they are transferred, he noted, patients were being moved much faster.

OMH institutions, especially in and around New York City and Rochester, filled up as hospitals discharged patients to them. At the same time, discharges from some OMH facilities, which usually require the availability of outpatient beds or a family member's supervision, were disrupted by the pandemic.

Cramped quarters and common spaces, where sometimes over twenty patients would gather, allowed the virus to spread, according to facility staff and patients at the height of the first peak.

"The movement of patients was a lot easier before the pandemic. It's not happening," said Darlene Williams, an occupational therapist at New York Psychiatric Institute, an OMH facility in Washington Heights, in an interview in April 2020. "Patients are coming in. Admissions are still happening but patients aren't going anywhere, so it's not like you have like before."

"Censuses are now always at the top because it's difficult to move patients out," said Williams, who is the downstate coordinator for Public Employees Federation, a union representing thousands of psychiatric workers in state facilities.

There was a push by OMH to discharge patients "but you can't move people out when you don't have places to move them," she said, referring to a shortage of outpatient beds.

Randi DiAntonio, vice president of Public Employees Federation, said the influx put a strain on hospital resources and staff. "Because they're taking in new patients from the city, they're having to open units and they don't have enough staff to open units. They are moving members that are in different titles -- clinical titles -- to do work where they'll be covering wards basically and supporting the very limited numbers of direct care staff that are now working because a lot of people are out sick."

Loose protocols and little systemwide continuity may have hurt efforts to stem the virus in facilities, DiAntonio and other people working with patients said. "Unfortunately, they didn't follow great quarantine protocols when they were doing that...They potentially put people into general populations, creating more of a potential for spread," she said over the phone last spring. At the time, PEF was urging OMH officials to adopt more rigorous screening practices.

Where Did They Go?
If New York City was the global epicenter of the pandemic in the spring of 2020, the city's public hospitals were the center of the epicenter.

New York City Health + Hospitals transferred 91 patients from psychiatric floors to OMH inpatient custody in March and April, when a majority of transfers took place, according to a spokesperson. The system's covid "surge management plan" included provisions for expediting patient transfers to OMH centers in accordance with guidance from OMH and the state Department of Health, which houses it. Officials in the health department's central office deny issuing guidance to hospitals related to moving psychiatric patients to OMH. Health + Hospitals has never published its surge management plan and would not share sections related to psychiatric transfers.

The transfers helped New York City public hospitals triple ICU capacity at the height of the first wave, even as they were being overrun -- especially in underserved Black, Latino, and immigrant neighborhoods like Elmhurst, Queens, and the South Bronx.

“NYC Health + Hospitals worked tirelessly to ensure critical mental health services and treatments weren’t disrupted during the COVID-19 pandemic surges, while also extending life-saving care to the high volume of patients suffering from severe COVID-19 symptoms," said Health + Hospitals spokesperson Stephanie Guzmán, in a statement. "Our partnership with the New York State Department of Health’s Office of Mental Health made transferring behavioral health patients to State facilities quickly, safe, and efficient for all of our patients, guaranteeing their continuation of care and comfort in the process.”

The state health department did not track psychiatric discharges or transfers to OMH facilities and could not provide information on the covid status of mental health patients, according to spokesperson Jill Montag. A spokesperson for the city's Department of Health and Mental Hygiene, which is separate from Health + Hospitals, told Gotham Gazette the department did not have oversight over patient transfers and directed inquiries to OMH.

Private hospitals also sent psychiatric patients to OMH long-term care during the pandemic’s early months in New York.

"As some of the psych services needed to be curtailed during the spring surge, I do know that some of the state psychiatric facilities, residential facilities and other facilities, took on more of those patients in order to meet patient need," said Jenna Mandel-Ricci, the vice president of regulatory and professional affairs at the Greater New York Hospital Association, in an interview with Gotham Gazette in November. GNYHA represents over 160 private providers in the area and Mandel-Ricci headed its emergency preparedness efforts.

"That was a really nice example of how the hospitals worked with the state facilities," she said.

Brian Conway, a spokesperson for the association, denied any direct involvement in psychiatric patient transfers. "GNYHA has never had a role in such transfers or discharges, including during the height of the pandemic last spring," he wrote in an email to Gotham Gazette.

Some people held at Rikers Island, the city's largest jail complex, who were awaiting trial and normally would have gone to a hospital for psychiatric care were instead sent directly to OMH facilities.

On April 2, 2020, Brian Belfi, the executive director of Kirby Forensic Psychiatric Center, an OMH facility on Randall's Island for people coming in through the criminal justice system, wrote an email to his staff obtained by Gotham Gazette.

"Next week we are going to be taking female admissions from Rikers Island who need a higher level of psychiatric care," he wrote. "These are inmates that would have historically gone to Elmhurst [Hospital] which is overburdened with COVID. The NYC DOC is discharging more inmates than ever before so we are hoping there is not going to be many admissions."

At the time, according to the email, Kirby Forensic had eight covid-positive patients on a single unit -- which can typically hold up to 30 patients -- and administrators were looking for space to put other patients they suspected of being positive.

The Department of Correction did not provide comment for this article.

Broadly, of facilities that OMH provided data on, Rochester Psychiatric Center and facilities in and around New York City had the biggest admissions upticks from March 12 to May 8, 2020, while Section 517 was lifted, compared to the same period in 2019. (OMH only provided data on 14 of the state's 23 facilities, not including Kirby Forensic.)

Admissions to Rochester nearly tripled from 2019 and doubled from what they were between January 12 and March 12, 2020, the two-month span just before 517 was suspended. Bronx, Kingsboro, and Manhattan psychiatric centers, all in New York City, also saw admissions at least double. South Beach, on Staten Island, and Rockland Psychiatric, located near New York's first coronavirus hotspot, saw smaller upticks (by the end of the season, Rockland had the third-most covid deaths of any facility, according to OMH, and possibly higher).

Many facilities in upstate New York, with the notable exception of Rochester Psychiatric, saw a downturn from 2019 in early 2020. Elmira Psychiatric Center, in the Finger Lakes region, saw its admissions cut in half between spring 2019 and the end of that year, only to see it double again in the spring of 2020. Buffalo Psychiatric experienced a similar fall and rise of smaller proportions.

Between March 20 and June 4, 2020, 38 psychiatric institution patients died from COVID-19, according to information from OMH. Three facilities had more than five confirmed patient deaths from COVID-19, though it is unclear when those deaths occured, whether these patients were recently transferred from hospitals, and where they contracted the virus. Creedmoor Psychiatric Center, in Queens, saw eight deaths, Pilgrim, 10, and Rockland, six, according to Plastiras in a June 5, 2020 email -- though an employee at Rockland Psychiatric told Gotham Gazette last April about nine COVID-19 deaths that had occurred and The New York Times reported that OMH had confirmed ten patients there had died. (Plastiras at the time told Gotham Gazette it was against policy to disclose facilities with five or fewer COVID-19 deaths in order to protect personal health information.)

Those three facilities are OMH's largest by population and had the highest numbers of patients over 65 as of April 19, 2020, according to data obtained through a Freedom of Information request. OMH did not provide a racial breakdown of the population because "disclosure could constitute an unwarranted invasion of personal privacy."

Creedmoor is the nearest adult OMH psychiatric center to Elmhurst Hospital, which saw some of the coronavirus' worst days in New York. It had the largest admissions drop of any OMH facility, despite having one of the highest death tolls by the end of spring 2020. The district is predominantly Latino and Asian.

Pilgrim, which had the most OMH-confirmed deaths of that season, increased admissions including patients from the city, according to people with knowledge of the facilities at the time, who spoke on the condition of anonymity. Sources say it is unusual for Pilgrim, which is in central Long Island, to receive city clients because people are usually admitted locally, where they can be near family and outpatient residences in their community.

 

(Data: New York State Office of Mental Health)

(Data: New York State Office of Mental Health)

 

(Chart: New York State Office of Mental Health)

***
by Ethan Geringer-Sameth, reporter, Gotham Gazette
     

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