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Guns, the Supreme Court and New York


After Rashawn Handsome of Brooklyn was arrested for keeping three handguns in a sneaker box in his apartment -- without any license for them -- his Legal Aid attorney argued that Handsome had a right to bear arms under the Second Amendment of the Constitution. As we reported last year, a Criminal Court judge emphatically disagreed. The guarantee of the right to bear arms, Judge Michael Gerstein said, referred to state militias. No one, the judge reasoned, intended for every individual to "own firearms for their private, civilian use."

But now the Supreme Court has spoken on this issue -- in a case involving the District of Columbia's restrictions on guns. Could Handsome and his Legal Aid Society attorney have been right?

Exactly what the Second Amendment means has been debated for years -- centuries, actually. This summer the Supreme Court of the United States, in the case of District of Columbia v Heller, addressed the question for the first time. According to five of the nine justices, the words, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed," means that individuals have a right to possess weapons. The amendment, the court held, is not limited to states providing weapons to militias or, in modern times, the National Guard.

In light of that opinion, New York City cases that were held in abeyance must now be decided.

The New York Rules

The Washington, D.C. and the New York state and city laws are quite different. Washington's laws, considered the strictest in the country, totally banned handgun possession and did not allow for the lawful registration of weapons. New York, on the other hand, permits gun ownership provided the individual wanting a gun obtains a license first.

New York's current requirements for a license are "good moral character" and that there be "no good cause" for denial. For the even more elusive right to obtain a "carry permit," which enables the owner to have the gun outside the home or business, "proper cause" must be established.

Defense lawyers have already challenged these restrictions in criminal cases where their clients have been arrested for possession of guns. These criminal defense lawyers argue that the New York laws are unconstitutional and therefore the charges must be dismissed. While lower criminal courts will continue to uphold city and state restrictions, those decisions will be appealed. It is considered unlikely that the appellate courts will find the licensing requirements unreasonable or unconstitutional.

The Supreme Court clearly said that the Second Amendment is not an unlimited right, and that conditions and qualifications, including a licensing law, could be imposed if they were not enforced "arbitrarily and capriciously." In other words, the justices expressly upheld both the ability of individuals to possess guns and licensing.

Richard M. Aborn, president of the Citizens Crime Commission of New York City and a gun control advocate, calls the decision, "a victory." It "validates that the Second Amendment is not a barrier to laws we need, such as licensing, registration, safety training," Aborn, a former prosecutor and candidate for Manhattan district attorney, said. "The issue is about keeping guns out of the hands of bad guys."

The court, however, clearly determined that an outright ban "amounts to a prohibition of an entire class of 'arms' that is overwhelmingly chosen by American society for that lawful purpose." Writing for the majority, Justice Antonin Scalia said, "Handguns are the most popular weapons chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid."

"We are aware of the problem of handgun violence in this country," the justices said, "but when it comes to an absolute prohibition of handguns kept and used for self defense in the home ... [such] policy choices [are] off the table."

This concerns some gun control advocates. The Brady Campaign to Prevent Gun Violence issued a statement saying, "After the Heller ruling as before, approximately 80 Americans will continue to die from guns every day. Our weak or nonexistent gun laws contribute to the thousands of senseless gun deaths and injuries in this country every year. We must continue to fight for sensible gun laws to help protect our families and our communities."

Limits to Ownership

Motions filed by the Legal Aid Society in a variety of gun cases claim that the licensing process and the difficulty of obtaining licenses amount to a complete ban on the ability to legally possess firearms, which, under the Heller case would be unconstitutional. The standards that a person be of "good moral character" and that "no good cause" exist for the denial are, defense lawyers maintain, flawed, vague, and insufficient.

Despite that, the argument that there is an absolute, unrestricted constitutional right to possess weapons of any type, at any place and by any person, is not expected to succeed in any court or even be raised. Constitutional amendments, including the second, may be subject to some restrictions. For example, the First Amendment guarantees the right to freedom of speech, but "not a right to falsely yell fire in a crowded theater." These are not absolutes.

In the Heller decision, the Supreme Court expressly approved certain categories of denial used in New York including those applying to individuals who have a felony record or a mental health disability. It is considered unlikely that a license would be granted to anyone who has ever been arrested, lives with anyone with a criminal record or uses controlled substances. In the meantime, the National Rifle Association is planning its attacks, which will involve civil law suits, on various state laws. New York is not on its list.

Challenges to pending cases and future arrests involving firearms will be the subject of litigation for years before the constitutionality of New York's laws is decided. There could well be more trips to the Supreme Court. The court said as much: "Since this case represents this Court's first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field."

Emily Jane Goodman is a New York State Supreme Court Justice 

Safety on Site -- or In Sight?


The buildings department just might be Mayor Michael Bloomberg's brooding, dark shadow -- he can't seem to escape the destruction that plagues it.

Already in the first six months of 2008 the city has seen more fatalities at construction sites, 15 to be exact, than it did in all of 2007, Bloomberg said at a press conference last week. Just two days after that press conference, the city's top crane inspector was accused of taking bribes to allow cranes to pass inspection.

Although the mayor is credited with reworking the Department of Buildings -- within the past six years the number of inspectors has climbed 66 percent -- the fatalities have brought the department's alleged dysfunction back to the fore.

Even industry professionals, some of whom balked at additional reforms to the department after an exhaustive review of the building code earlier in the Bloomberg administration, have come around, saying that two crane accidents in three months calls for serious change.

Last week Bloomberg, with members of the City Council and the acting buildings commissioner, Robert D. LiMandri, tried again. A package of more than a dozen legislative proposals -- some of which were introduced at the City Council following the first accident in March -- was announced in an attempt to promote safety as the city continues to experience a building boom.

Industry professionals and observers have already debated those proposals, which range from crane safety to the qualifications of the buildings commissioner. But more dialogue is sure to come.

The Proposals

Since the city's first crane accident this year, there have been eight bills introduced at the City Council regarding construction site safety. Some of them were included in the package the mayor revealed last week.

The legislation intends to enhance safety at construction sites, but not halt construction, said Bloomberg. While safety is the city's first priority, the city will continue constructing skyscrapers and transit hubs.

"Our priority is not to balance two competing forces: economic development and safety," the mayor said. "It is, it has to be, safety -- safety of construction workers, safety of the public. No compromises and no excuses."

A key part of that effort, city officials said, is a revision of how the city tracks general contractors. In addition to the building permits contractors must obtain for each site, the city would now require every contractor to register for a safety control number, which would allow the department to track contractors across sites, including by who their principals are. That way, if one developer is an officer at several general contractors, the city can determine, the safety records of all of them. This step, officials said, will force contractors to embrace safety practices, instead of treating city violations and fines as a cost of doing business.

The city could also require contractors to keep concrete safety managers on site to ensure compliance with city regulations. The city's new building code mandates a similar position for demolition and high-rise construction. Bloomberg said 60 percent of all construction incidents involving falling debris in 2007 occurred during concrete operations.

One bill included in the mayor's proposal (Intro 763), which was introduced by Councilmember Annabel Palma in April, would classify "housekeeping" violations at construction sites, like tripping hazards or inadequate safety netting, immediately hazardous violations -- a type of violation which can carry fines as high as $25,000.

This package would also assign independent safety monitors to sites that have poor safety records. The monitors would be hired under contract by the city, and a general contractor would have to reimburse the department for the monitor's cost before the building received a certificate of occupancy. This proposal was adapted from a bill (Intro 760) introduced by Councilmember Jessica Lappin, whose district includes both crane accident sites, in April .

For crane safety, the city will require a safety meeting before any jumping, erecting or dismantling of equipment with the site safety manager, the crane engineer and any other responsible parties. The city will also require more intensive training for crane operators and restrict the use of nylon slings, which were a cause of the March accident. Bloomberg also said the city would roll out more proposals specifically pertaining to the operation of cranes in the coming weeks and months.

In addition to these proposals, the city would also mandate the following:

 

  • Reporting Unsafe Conditions in Hazardous Structures: Private property owners will have to file reports with the department for buildings that are vacant and structurally unsound. The city would then inspect the buildings and charge the owner for any emergency work.
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  • Inspection of Retaining Walls: Require cyclical inspection of retaining walls by private property owners to ensure those fronting on public areas remain in good repair.
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  • Disciplinary Action: Notify the state of any disciplinary action against an architect or engineer, allowing licenses to be revoked if necessary.
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  • Qualifications for Commissioner: The city could no longer require its Department of Buildings commissioner to be a registered architect or licensed engineer (Intro 755) under new legislation at the City Council. Bloomberg said the department needs a manager, not necessarily an architect. While that move received some praise from industry professionals, like the Real Estate Board of New York, Fredric Bell, director of AIA New York, raised some concerns here.
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  • Annual Safety Reports: The city could also (Intro 754) mandate an annual report on construction related injures, including the type of activity associated with the injury.
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    Moving Forward and Building Up

    These are not the first steps the Bloomberg administration has taken following the fatalities in March .

    Since the first accident on March 15, when a crane collapsed into a townhouse and killed seven people, the city has provided the Department of Buildings with $4 million to equip 20 specialized engineers for a citywide analysis of construction site safety.

    Bloomberg also required crane inspectors to oversee sites whenever a crane jumped -- that requirement was scaled back a day before the city's second crane accident in May.

    Despite these efforts, the city still has received some criticism. Manhattan Borough President Scott Stringer expressed support for the mayor's proposals last week but also warned that the department did not have enough resources, employees or know-how to see them through.

    "We need to know when it's going to happen, who is doing the work, how is it going to get done and we need to get it done now," said Stringer in a prepared statement. "We are piling all of this onto one agency. We must involve multiple agencies or I fear we will not be able to accomplish these goals."

    U.S. Rep. Carolyn Maloney, whose district includes parts of Queens and Manhattan, called for the federal Occupational Safety and Health Administration to inspect all of the city's construction sites. The mayor balked at that idea.

    As some of the latest proposals were introduced at the City Council last month, some industry professionals suggested the city would be better off doing away with the buildings department and remaking it into a public corporation to oversee construction sites. But since the latest fatalities on May 30, several of the city's most powerful groups have reversed that position.

    "It's no secret that we raised some issues, but working over the past two weeks we have resolved just about all those issues," said Steven Spinola, president of the Real Estate Board of New York. "This is a package that will generate additional training, it will require accountability by us in the private sector and, when necessary, it will add additional professional oversight by the proper people."  

    Can New York Break Its Incarceration Habit?


     

    youth justice
    Photo (cc) Yoshi
    Rochester detention center

    It’s an experiment that has arguably run its course.

    In the last 20 years, states across the country have quadrupled their spending on jails and prisons from $11 billion in 1987 to $44 billion last year, while imprisoning 2.3 million individuals – or one in 100 American adults, according to a report released by the Pew Center on the States. While some criminologists give incarceration partial credit for cutting crime in the 1990s, many argue that these public safety benefits are evaporating and that money for jails would be better spent in other areas such as health care and education.

    Among policymakers and experienced corrections officials, there is a palpable sense of optimism that the political will exists to tackle the issue of mass imprisonment. To them, the Pew Center report’s eye-catching title, "One in 100," has helped focus a long-running debate about the fiscal and human costs of incarcerating so many Americans for so many years. "The report is engaging people who are normally not part of the conversation," said New York City’s Probation and Corrections Commissioner Martin Horn. "I think it’s created a real opportunity."

    Even conservative states like Kansas and Texas are beginning to embrace prison reform, with legislators from both sides of the aisle coming together to make change. "There is a growing realization around the country that we can’t build our way out of the crime problem with more prisons," said Adam Gelb, one of the authors of the Pew report.

    For New Yorkers this shift in attitude poses a number of questions. How will the state respond? Will it close the prisons that now play such a major role in the upstate economy? And, if the state does realize savings on prisons, how could that money best be used to further reduce crime?

    The New York Exception

    New York is exhibit number one for reformers who seek to reassure citizens that it is possible to cut crime and incarceration rates at the same time. Virtually alone among states, New York has seen the number of inmates in its prisons decline over the past decade. It has 9,000 fewer state prison inmates than it did 10 years ago, a 12 percent decrease, as crime rates have continued to drop. By the end of 2007, there were a total of 62,260 individuals in state prison. At the same time, the number of people held in New York City jails awaiting trial or imprisoned for a short period shrank from a high of 23,000 in 1993 to just over 13,000 in 2007.

    These sharp drops have been driven largely by the city’s plunging felony arrest rate. Violent crime in New York City declined by 75 percent between 1991 and 2004. The city now sends about 8,000 inmates each year to the state’s prison system, down from 20,000, according to Michael Jacobson, director of the Vera Institute of Justice and a nationally known expert on incarceration.

    Other parts of the correctional system have seen similar declines. In New York City, the number of individuals under probation supervision dropped from 50,870 in 1998 to 45,844 in 2007. The population on parole dropped by 18 percent over the same period for the state as a whole, fueled entirely by a dramatic, 30 percent decline in the number of parolees under supervision in New York City. That translates to 24,756 parolees in New York City in 2007, down from 35,286 in 1998. Probation is a city program that supervises offenders as an alternative to prison or jail. Parole, which in New York is run by the state, supervises offenders after they are released from state prison.

    This drop has helped relieve pressure on New York’s budget at a time when other states are grappling with exploding incarceration rates. For example, California spends $8.8 billion a year on corrections, a staggering 216 percent increase in inflation-adjusted dollars over the last 20 years and 8.8 percent of the state’s budget, according to the Pew Center. By contrast, New York spends $2.6 billion on corrections, or 5.1 percent of the budget.

    The Politics of Prison Closings

    Despite the decline in prisoners, though, New York has had mixed success in meeting another challenge posed by prison reformers: shutting prisons and re-allocating the money spent on them to other uses, such as providing drug treatment, job training and other services to recently released prisoners.

    If anything, the process of closing prisons has gotten harder, not easier, in recent years. For example, in 2006 the state legislature passed a bill requiring that employees must receive a year's notice before any prison can be closed.

    Then in April Gov. David Patterson quietly withdrew his predecessor's plan to close four upstate prisons. The move would have saved taxpayers $70 million over the next two years, but was shelved in the face of objections from state Senate Republicans, many of whom represent upstate communities where the prisons are located.

    The prison system is a $2.7 billion a year industry in New York State, concentrated in many upstate communities. As the economies of these areas have declined, the prisons have remained a source of jobs, income and people. While about two thirds of the prisoners in the state are from New York City, the U.S. Census counts themas residents of the place where they are incarcerated. This boosts the populations of many rural communities, giving them more votes in the legislature than they might otherwise have, along with other benefits.

     

    Gov. Eliot Spitzer had attempted to neutralize political objections to prison closures by proposing that a state commission look into the issue in 2007. Modeled after the federal government's successful effort to shut excess military bases, the idea was the panel would present the legislature with a comprehensive plan that would be difficult to oppose.

    The legislature, though, blocked that effort. Spitzer then turned to his state Department of Correctional Services. After what department spokesperson Erik Kriss has described as a "thorough internal review," officials proposed closing a medium security prison, the Hudson Correctional Facility in Columbia County, as well as three minimum security facilities. The department had even begun to transfer "a few dozen" employees out of the facilities slated for closure.

    That was clearly premature. When the state budget was announced in April, it restored full funding for all four.

    Advocates responded with outrage. "It’s really a jobs program for economically depressed communities," Robert Gangi, the executive director of the Correctional Association of New York, told the New York Times. Gangi holds out hope that Patterson will fight for prison closures in the future. He notes that Patterson has a record of opposing mass incarceration and was even arrested at a demonstration protesting the state's harsh drug laws in 2002. "Maybe [Patterson] will return to it when he gets his sea legs under him," said Gangi.

    Reforming Parole

    The failure to close state prisons is a blow to state officials who hoped to use the savings to comply with tighter supervision standards for sex offenders, introduced by the legislature in 2006. It also gives the state less flexibility to help re-invigorate parts of the correctional system, like parole and probation, which have long suffered from neglect and under funding.

    Advocates are particularly interested in transferring money from prisons to parole, which they see as key to reducing incarceration rates and increasing public safety. Improving parole would have a kind of domino effect: Better supervision of released offenders would reduce the number of offenders who go back to prison, thereby further diminishing the need for prisons, which in turn would free up more money for parole.

    In recent years, however, parole officials have had to fend off challenges to the institution’s basic legitimacy. In 2005, the Urban Institute released a report, entitled http://www.urban.org/publications/311156.html "Does Parole Work?" It found that parole had little to no effect on re-arrest rates among offenders. After controlling for demographics and differences in criminal histories, the researchers found little difference between offenders released from prison with no conditions and those released under parole supervision. Roughly 60 percent of offenders in each group were re-arrested within two years. Some groups, such as white males with histories of violence and a long arrest records, actually fared worse under parole supervision than when they were released unconditionally.

    In addition, observers credit -- or blame -- parole for helping to fuel the country’s prison boom. Put simply, in many states, parole provides the reason to put many released convicts back in jail. Studies show that about a quarter of all released offenders are re-incarcerated within three years of their release on so-called "technical violations" of their parole, such as failing a drug test or missing a curfew, as opposed to a new arrest.

     

    In some states like California, the problem is particularly acute: According to Michael Jacobson, the state sends three quarters of its parole population back to jail every year for technical violations. In 2001, close to 15 percent of parolees were returned to jail in New York for technical violations, although that accounted for a large share (about one third) of all new prison admissions.

    As Jacobson and others describe it, over-taxed parole officers return parolees to jail for minor infractions in an effort to manage caseloads that average 65 or more. The irony is that the parole system, one of the government’s most poorly funded functions, has essentially unchecked authority to authorize millions of dollars of government expenditures by citing offender for violations, guaranteeing their return to jail and the need for more prisons.

    Some of parole’s toughest critics are system insiders such as Horn, the former executive director of New York’s Division of Parole. In a 2001 article in Corrections Management Quarterly, Horn called for "ending parole as we know it." He proposed replacing it with vouchers that would allow parolees to purchase needed services like drug treatment, job training or housing on their own. Before being released to the community, inmates would be placed in halfway houses to ease their reentry into society. The role of parole would shift from surveillance to supporting inmates and helping to link them to services. "I’m more convinced than ever that this is the right way to go," said Horn.

    Other prominent correctional reformers, such as Jacobson and Jeremy Travis, the president of the John Jay College of Criminal Justice, argue that it would be politically difficult to win support for any plan, like Horn's, that does away with post prison supervision of offenders. Instead, Travis favors transferring parole from the executive branch to the judicial branch. He would create "re-entry courts" in which judges would supervise the reentry process.

    Jacobson focuses more directly on reforms to parole itself, which include allocating resources so that recently released parolees get the most attention, limiting the length of time that a person stays on parole and curtailing the use of technical violations.

    What all these proposals share, however, is the urgent sense that parole in its current form simply does not work. "If almost any of the state parole systems were a Fortune 500 company, the CEO would take one look at it and shut it down," Jacobson writes.

    The View from New York

    Here again, New York looks pretty good – at least in comparison to other states.

    Although New York City’s plummeting crime rate gets most of the credit for the state’s declining incarceration population, some modest changes in correctional policy have had an impact as well. Some state prisoners are eligible for early release if they complete a so-called "shock incarceration" program that includes six months of hard labor. According to the state Department of Correctional Services, the program, in operation since 1987, has saved $1.18 billion in prison costs by granting over 36,000 participants a release an average of 345 days early.

    Small changes to the state’s Rockefeller Drug Laws, enacted by the state legislature in 2004, have resulted in the early release of about 3,000 individuals, according to the New York State Criminal Justice 2007 Crimestat Report. Finally, in April, four state agencies, including the Division of Parole, launched a new drug treatment center in Harlem aimed at reducing the rate at which parolees, including those who fail a drug test or commit other technical violations, return to prison.

    Perhaps most importantly, New York City offers a number of resources for the 15,000 parolees who returned home in 2007. Well-respected non-profit organizations like the Center for Employment Opportunities], the Fortune Society, the Women’s Prison Association and Family Justice all work with this population.

    For example, the Center for Employment Opportunities provides short-term paid jobs and other services to about 2,000 parolees every year. Participants spend about eight weeks painting classrooms on college campuses, mopping courthouse floors or filling other temporary positions. After finishing these paid internships, job experts work to match participants to permanent jobs. The goal is to help released inmates manage the transition from incarceration to paid work.

    "We feel strongly that a person coming home needs more than help than just creating a resume," said Marta Nelson, the director of policy and planning. "They need someone who can connect them to an employer." The program has cut re-incarceration rates among parolees by almost half, but only for individuals who begin the program within three months of their release. This finding mirrors national research that shows the importance of linking parolees to services immediately.

    Despite these signs of success, New York is subject to the same difficult policy and practical challenges faced all over the country. "Parole is hard," said Horn. "It really gets deep into social and psychological factors [of parolees], and operates in a world where there are so many factors outside of its control."

    For now, one of those factors seems to be New York State's commitment to spending hundreds of millions of dollars on prisons -- even without the prisoners to fill them.

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

     

     

     

     



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