In support of Governor Cuomo’s Wrongful Conviction bill, Yusef Salaam and Fernando Bermudez have been sharing their powerful stories of being wrongfully convicted. Their horrific experiences unfortunately demonstrate the need for criminal justice reform in New York State. As two of the wrongfully charged and convicted “Central Park Five,” they know all too well the wrongful conviction rate in New York State is shameful, and action must be taken to implement meaningful change.
The failure to record interrogations and the lack of mandated best practices in identification procedures are two leading causes of wrongful convictions. Salaam and Bermudez are correct: we have a moral imperative to prevent wrongful convictions.
There are two competing bills currently pending in Albany. Governor Cuomo has included relevant bill language in his Article VII budget bill (Public Protection and General Government – Part D) and the Assembly has passed bill A.4239. Both purport to have the same purpose: providing meaningful criminal justice reform in the areas of police interrogations and identification procedures. Unfortunately, the problems will not likely be rectified if the legislation proposed by Gov. Cuomo is enacted. The Assembly bill goes further and provides the real change that New Yorkers need and deserve.
Salaam correctly points out that if his interrogation had been recorded, the jury and the court would have seen the hours of coercion leading up to the well-rehearsed “confession.” The governor’s bill does not meaningfully correct this wrong. Instead, it limits the requirement for recording to when a person is “in custody.” However, the police often manipulate this standard so that they can interrogate a person for hours while not “in custody.”
The determination of when to record interrogations cannot be left to the police. The Assembly bill recognizes this problem and requires recording of entire interrogations, regardless of the position taken by the interrogating police officers as to whether the person was “in custody.”
Furthermore, the governor’s bill has a severely limited set of enumerated crimes in which recording is required. The Assembly bill modestly expands this list to the most serious and violent of felonies. For this legislative initiative to truly accomplish its objectives, the Assembly’s expansion of the list of included charges is necessary.
The Assembly bill also closes other gaps that we believe renders the governor’s bill almost meaningless. For instance, there is no actual remedy for a failure to comply with the provisions of the governor’s bill. In contrast, the Assembly bill provides our courts and judges with appropriate tools to guarantee compliance with the standards the law would require.
Similarly, when it comes to identification procedures by eyewitnesses, the governor’s bill offers no real change. The governor’s bill does not require best practices in identification procedures; only suggests they be used; and provides no remedy for failing to follow those guidelines. In contrast, the Assembly bill codifies the best practices and mandates that the procedures be followed. In other words, the Assembly bill provides the meaningful change that is required.
The tragic railroading of defendants like the young men in the Central Park Five case and so many others must be stopped. Assembly bill A.4239 provides that change, and it should be passed now.
The Chief Defenders Association of New York (CDANY) is comprised of the heads of indigent defense offices across New York State. The New York State Association of Criminal Defense Lawyers (NYSACDL) is the largest statewide criminal defense bar association in New York. The New York State Defenders Association operates the Public Defense Backup Center which serves the needs of 6,000 public defense lawyers throughout New York. Combined, we represent most people charged with crimes in New York State. All three organizations strongly support the passage of Assembly bill A.4239.
Mark Williams, President
Chief Defenders Association of New York
John S. Wallenstein, President
New York State Association of Criminal Defense Lawyers
Jonathan E. Gradess, Executive Director
New York State Defenders Association
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Gov. Cuomo at Dannemora correctional facility (photo: Governor's Office)
Last week, State Senator Jesse Hamilton mailed a flier to his constituents strongly denouncing broken windows policing. The senator, who represents Crown Heights and surrounding neighborhoods in Brooklyn, called on the city to end arrests for minor quality-of-life offenses that “are often used to police black and brown bodies.”
The week before, during a speech in Manhattan, Governor Cuomo disparaged Mayor de Blasio for failing to close the notorious Rikers Island jail, accusing the mayor of “impotence.”
These criticisms of the city come as the state government, led by Cuomo, struggles to make its own reforms to New York’s criminal justice system. Current state budget negotiations include a push to “raise the age” of criminal responsibility so that 16- and 17-year-olds are largely prosecuted as juveniles, not adults. But the measure, which is seeing new daylight this year, has faced strong opposition from Senate Republicans for years, despite the fact that New York is now one of just two states that tries 16- and 17-year-olds as adults.
Senate Republicans want teenagers charged with violent crimes to be tried as adults and they want all 16- and 17-year-olds tried in criminal, not family, court.
The Republican Conference holds a plurality in the Senate—and the power that comes with it—in part because Senator Hamilton and the seven other members of the Independent Democratic Conference (IDC) do not caucus with the Democrats. Nominal “Democrat” Senator Simcha Felder caucuses with Republicans, giving the GOP a 32-seat bare majority in the 63-seat chamber.
But Senator Hamilton says that far from diluting the “raise the age” effort, his position in the IDC empowers progressive reform like it. “I, along with my colleagues in the IDC, have pushed Raise the Age further than ever before in the New York State Senate,” he said. “My advocacy around broken windows policing is motivated by my support for Raise the Age.”
For their part, city officials are defending their approach and pointing the finger back at the state. At a recent press conference, Mayor de Blasio was asked about Cuomo’s Rikers comments, and said, “Our job is to address this crisis [on Rikers Island]. We’ve been doing it for three straight years…The state’s job is to take care of the state prison system."
City Council Member Carlos Menchaca exchanged sharp words with Senator Hamilton on Twitter, asking him, “What law are you advancing at the state level to curb the impact of Broken Windows policing?”
Since that exchange, Senator Hamilton has introduced a bill to make turnstile jumping -- perhaps the prototypical broken windows offense -- a violation instead of a misdemeanor. Evading the subway fare is a charge the NYPD disproportionately brings against young black and Latino New Yorkers. Since city police enforce state laws, that is one avenue state legislators could use to influence city criminal justice.
Senator Hamilton, who is black, spoke of his son as a motivation for opposing broken windows policing and for supporting raising the age. “He’s at an age where ‘the talk’—about young black men, safety, and interactions with police—is not an abstraction.”
If the state raises the age of criminal responsibility, it will be the first major criminal justice reform legislation since the law ending the shackling of pregnant inmates in 2015. Executive action on prison reform has also slowed recently. After closing 13 prisons in his first term, Governor Cuomo has not closed any since 2013, even while the state prison population has continued to decline.
Last year, the governor also vetoed a bipartisan bill that would have increased funding to public defenders in the state. Cuomo insists he’s open to similar legislation but that it must be done through the budget.
And a New York Times report about rampant racial bias in New York State’s parole system led Cuomo to launch an investigation, but no findings have been made public and the parole system is unchanged.
Parole reform is on the list of criminal justice changes that advocates have long hoped New York State would take up. The list also includes reform to the bail system, ending the use of solitary confinement, and a bill to accelerate trials. Republican control of the Senate, aided by the IDC, makes further reforms less likely.
“The speedy trial bill, Kalief’s Law, should be a no-brainer,” said gabriel sayegh*, the Co-Executive Director of Katal, an organization fighting mass incarceration. “It would reduce pre-trial detention in jails.” The bill passed the Assembly unanimously, but has stalled in the Senate. “Even common sense bills that have bi-partisan support don’t get done,” sayegh said.
“I don’t think it’s a problem when state folks speak out on city issues, or vice versa,” continued sayegh. “We are eager to have the governor support the speedy trial bill, which would help us close Rikers. We want to see Senator Hamilton follow through by advancing legislation at the state level that addresses disparities in policing practices and arrests. They should connect their comments to action.”
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Brenden Beck is a PhD candidate in sociology at the CUNY Graduate Center researching police, suburbs, inequality, and housing. On Twitter @BrendenBeck.
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*sayegh spells his name with all lowercase letters
(photo: Michael Appleton/Mayor's Office)
Each year 650,000 inmates exit prisons; a disproportionate share are black men. Indeed, at least one-quarter of black men have criminal justice involvement. Without effective reentry programs, joblessness and recidivism follow. All agree that educational enhancements should be an important component of reentry initiatives. There is, however, a struggle between those who advocate expanding access to academic programs leading to four-year degrees versus those who emphasize certificate and other training programs.
Last month, the New York Review of Books glowingly reviewed books that not only advocated for academic programs but also argued against vocational ones. This misguided myopia is divorced from reality.
The reviewed books were written by participants in the Bard Prison Initiative (BPI) program that serves the New York prison population. We are told that it transforms inmates who “lack more than the rudiments of basic literacy” into disciplined students who attain four-year liberal arts degrees. In defending its liberal arts approach, the article pointed to corporate executives who counsel students to “acquire broad knowledge in the liberal arts and sciences.”
By contrast, it criticized President Obama, who told a 2014 audience, “folks can make a lot more, potentially with skilled manufacturing or the trades than they might with an art history degree.” It also frowned on prison vocational efforts that “don’t show nearly the kind of personal or job-related gains that full college-in-prison programs yield.”
This perspective is wrong in many ways. Corporate leaders do not encourage majoring in liberal arts. Instead, they urge students to take these courses to supplement majors in which technical skills are developed. Left unsaid, by channeling students into primarily humanities majors, BPI avoids prison students overcoming their severe mathematics deficits. As a result, virtually none of the BPI graduates entered the corporate work world. Instead, they overwhelmingly gained employment in social service occupations in the public and nonprofit sectors: “working as youth advocates, counselors and teachers.”
The disparagement of prison vocational programs is also off base. New York is one of the most successful states in enabling inmates to study for the High School Equivalency (HSE) exam. Despite these efforts, most inmates leave prison without passing the exam, making this four-year college-for-all approach inapplicable to most of them.
By contrast, a recent comprehensive government study found that certificate programs have significantly increased post-prison employment rates.
Most troubling, however, the BPI program has been a signal to others that the college track is the desired goal for as many of the previously incarcerated as possible. I recently surveyed a number of New York City prison reentry programs for a report that will be published by the Manhattan Institute. I found in virtually all cases, the only option given to those with a HSE was academic programs at the community colleges. Other options, like certificate programs, were virtually unoffered.
I reviewed the highly respected Futures Now program at Bronx Community College, which provides college entry to the previously incarcerated. It has a committed staff that help them navigate the college experience. Unlike those in prison, however, these overwhelmingly black and Latino students have a myriad of issues that inhibit their academic success: housing problems, problematic social relations, and financial needs. Since virtually all of these students still have academic deficiency, they must first go through remediation courses.
The problems with this four-year college-for-all strategy do not end there. In 2012, the median annual earnings of those with four-year degrees working full-time was $49,650. The modest share of Futures Now students that complete their four-year degree will overwhelming have weak transcripts and majors that will place them at the lower end of the earnings scale. The lowest-earning 30 percent of four-year graduates earn no more than $36,850: the median earnings of full-time workers with only two-year degrees. Thus, only a small share of Futures Now students end up earning more than if they had chosen two-year occupational programs that focus on direct employment.
Despite their best efforts to overcome these hurdles, only one-quarter of Futures Now students complete the two-year program; and few of them seek direct employment. Bronx Community College does not have job placement professionals, they expect their students to transfer to the senior colleges. Indeed, the largest share of Futures Now students was enrolled in the liberal arts track, favored by those who expect to transfer. If the best support program available only has a 25 percent success rate, many would have been better off enrolling instead in certificate programs available in the City University of New York (CUNY) system.
One final problem created by this well-intentioned strategy: Many of the successful few from the Futures Now program who attain four-year degrees have weak employment prospects and are counseled to seek postgraduate programs that can be expensive. A Brookings Institute study estimated that average black student debt ballooned from $23,400 to $53,000 as a result of postgraduate debt whereas white student debt rose from $16,000 to $28,000.
Studies consistently find that black students have lower grades and test scores than white students. As a result, black students are less likely to be accepted into public postgraduate programs and instead a disproportional share attend for-profit institutions: 28 percent compared to 10 percent of white students. Given their similarly poor undergraduate records, the outcome for many Futures Now college graduates who enroll in postgraduate programs may be high student debt with problematic employment credentials.
We should applaud Bard College for improving the lives of many inmates. We should not, however, accept their generalizations that it is better for the previously incarcerated to have liberal arts rather than occupational degrees, vocational programs for inmates and the previously incarcerated are detrimental, and prison reentry programs should focus exclusively on academic programs for those who have passed the HSE exam. While a share of those previously incarcerated can benefit from academic programs, particularly two-year occupational degrees, the majority is better served by certificate or other short-term training programs.
[Also read: Certificate Programs Offer Opportunity to At-Risk Youth]
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Robert Cherry is Stern Professor at Brooklyn College and CUNY Graduate Center.
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