Gotham Gazette

The Place for New York Policy and politics

Topics

Topics

Civil Liberties And Police Surveillance


Critics of New York Police Department policies instituted in the wake of the September 11th terrorist attacks ended the year with a sense of anticipation-and disappointment.

A new, non-binding City Council resolution seeking to reaffirm the importance of civil liberties for New Yorkers became the victim of bad timing, as a vote on the resolution scheduled for December 15 was postponed until January following the capture of Saddam Hussein by military forces. (See December Lawtopic page)

Leaders from the New York Civil Liberties Union anticipate that the resolution will be passed when the council resumes in January. The resolution includes strong language against New York Police Department surveillance policies and also calls for the department to release statistics involving the number of searches done under the U.S. Patriot Act (under the law, such searches are done without the knowledge of the person being investigated).

The resolution, if passed, would be among scores of others passed nationwide in response to the Patriot Act. But in New York, there have already been several complaints about police practices that have left many civil libertarians disappointed with New York police.

Handschu Gone, But Not Forgotten

A 1971 class-action lawsuit forced the department to adopt guidelines in 1985 that require proof of an actual or imminent crime before investigating political activities. Those guidelines, known as the Handschu guidelines, were criticized by police as a roadblock to gathering information about potential terrorist organizations post-September 11. For example, a complex money trail potentially leading to and from potential terrorist organizations, or speech inciting people to "rise up" against the United States could not lead to further police investigation, as long as such actions remained within the letter of the law.

The city fought successfully to repeal the Handschu decree, reportedly at the urging of Deputy Commissioner of Intelligence David Cohen, who worked for the Central Intelligence Agency for 35 years. Federal Judge Charles S. Haight ruled last January in favor of the police, relying on affidavits from Cohen that testified the Handschu decree was not workable in the "context of terrorism."

However, the same judge reprimanded the police for their interrogation of protestors arrested at a February anti-war rally. Though police claimed that they asked questions from a "debriefing" form (which itself drew a raised eyebrow from Haight), 12 protestors signed affidavits saying that they were asked such questions as "Do you hate George W. Bush," and "Don't you think it was necessary for us to get involved in World War II?"

Police Commissioner Raymond Kelly and Cohen both said they did not know about the "debriefing" form, raising questions voiced by attorneys about whose orders some of the 37,500 police officers seemed to be following.

For his part, Judge Haight said that he thought his original ruling struck a proper "balance between the legitimate demands of public security and individual freedoms." But after reviewing the complaints from protestors, Haight said, "I no longer hold that confidence."

What's Next?

For all the bad publicity and harsh words from Haight, the only change following the February incidents was that the police's surveillance policies were themselves placed under court supervision, a hand slap viewed by police as inconsequential.

And while the resolution before the City Council seems to show that civil liberties can be made into a citywide political issue, the idea that the so-called New York Bill of Rights will affect change in police policy-or even lead to the release of information such as how often education or library records have been pulled by law enforcement, as called for by the resolution-seems a dubious proposition.

Looming this year is the Republican national convention, a good bet to draw some sort of rally against Republican policies. Should any protestors be arrested, the courts and civil liberties groups like the New York Civil Liberties Union will be watching to ensure that no inappropriate questions are asked by police.

 

 

 

 

 

 

 

 

 

 

 

 

 

The Bill Of Rights Resolution


Q. What do Albany, Ithaca and Syracuse have that New York City does not?

A. A Bill of Rights Resolution.

Immediately following the September 2001 acts of terrorism, with little public debate, the U.S. Congress enacted the USA Patriot Act, and then the Homeland Security Act, followed by new federal orders, rules and regulations. Critics say many of these contain provisions infringing on civil liberties and civil rights. In response, three states, Alaska, Hawaii and Vermont, and, as of this writing, 227 cities and towns including 13 in New York State, have adopted resolutions in support of individual Constitutional rights. On the anniversary of the adoption of the Bill of Rights (December 15, 1791), despite the urging of a coalition called the New York City Bill of Rights Defense Campaign, the City of New York failed to join the list.

"The protection of civil rights and civil liberties is essential to the well being of a free and democratic society," the proposed resolution begins. "The members of the Council of the City of New York believe that there is no inherent conflict between national security and the preservation of liberty. Americans can be both safe and free."

The Bill of Rights Resolution, or Resolution 909, was introduced last May by Councilmember Bill Perkins, and cosponsored by 32 out of 51 members of the council. But it failed to come to a vote; support eroded on the last possible day because many members felt that the public would misunderstand its passage coming so soon after the arrest of Saddam Hussein. Speaker Gifford Miller has promised to bring the resolution back before the full council in January.

"We, as a city of eight million, can make a statement about federal law that speaks out against aspects of the Patriot Act, certain injustices and violations of civil rights and civil liberties, of Americans and immigrants," Perkins said in a telephone interview "The NYC Council must take a stand and go on record against secret detentions without charges or access to counsel; spying on lawful political and religious speech; and ethnic and religious profiling."

Udi Ofer, an attorney with the New York Civil Liberties Union, adds that "fighting terrorism does not mean conceding our freedoms, and Resolution 909A gets that message across loud and clear."

The new federal legislation and companion policies vastly increase the investigatory and surveillance powers of law enforcement, making enormous changes in the areas of privacy, and the rights of persons investigated or accused, or merely under suspicion in connection with alleged terrorism or based upon ethnic, religious or political grounds. Law enforcement and intelligence agencies are given unprecedented access to personal medical, financial, library and educational records, as well as Internet habits, search warrants, electronic surveillance. The new legislation also authorizes indefinite incarceration without counsel of non-citizens and those designated as "enemy combatants."

David Cole, Georgetown University Law School professor of constitutional law and author of ENEMY ALIENS, said that the Bill of Rights is not limited to citizens, the way voting is.

Because 909a is a resolution rather than a statute or ordinance, it would not have the force of law, nor the power to undo what Congress has enacted. However, the resolution would require federal authorities to disclose the circumstances surrounding New Yorkers arrested or detained in connection with terrorism investigations. It would also express support for the rights of immigrants, and express opposition to investigations based on activity protected by the First Amendment; to racial, religious or ethnic profiling; to unreasonable camera surveillance and searches; and to secret detention without charges nor access to a lawyer. The resolution would have called upon federal, state and local officials and New York City agencies and institutions to affirm and protect civil rights and civil liberties.

"I think the movement to pass these resolutions is the single most effective tool to raise the consciousness about the importance of civil liberties in the USA that has been undertaken since September 11th," Professor Cole said. "There is a real shift in public attitudes about the importance of protecting civil liberties and it's not because of the courts or Congress or executive orders, but what people around the country are saying in adopting these resolutions."

The resolution, which was endorsed by most of New York City's congressional delegation, also urges New York's Senators Charles Schumer and Hillary Clinton to take leadership roles in preventing passage of the pending Domestic Security Enhancement Act, or Patriot II.

Emily Jane Goodman is a New York State Supreme Court Justice.

 

After Rikers


An ambitious new city plan to help ex-offenders find jobs, affordable housing and drug treatment probably wouldn't have meant much to Clifton Murrell -- not when he was at Rikers Island, serving a yearlong sentence on charges of possessing cocaine and weapons.

Murrell remembers getting a booklet outlining existing programs designed to help prisoners plan their future on the outside - how to line up work, stay sober, and so on. Murrell never signed up for help; planning for his future seemed laughable to him while he was incarcerated. "You're in survival mode," he said. Rikers Island is "not really a place of" -- he pauses, a slight smile on his face -- "rehabilitation."

But now Murrell is out, and along with a dozen men and women early on a Monday morning, he is seeking help in the offices of The Fortune Society, a non-profit that has been helping ex-offenders since 1967. Some in the office profess confidence that they will find the job or education they need to keep from returning to old ways; others, like Murrell, admit to nervousness about what their future holds with a checkered past behind them.

City officials must be a little nervous, too. They are banking on a new program, funded by a $7.5 million federal grant and unprecedented interagency efforts, to help ex-offenders stay straight.

"It's something I really applaud. It's long overdue, badly needed and a real start in the right direction," said JoAnne Page, executive director of The Fortune Society. The new city efforts, however, are very much a work-in-progress, and the challenges are many in helping ex-offenders find success.

NEEDY POPULATION

Rikers Island, a little more than half a square mile of land sitting in the East River between the Bronx and Queens, has been the site of the city prison since 1935. Today, Rikers Island consists of ten separate jails, which together house about 13,900 prisoners.

Most inmates are in for only a few weeks as they await court dates; the maximum stay at Rikers is one year. (Longer sentences are served in state prisons.) The new city program seeks to help prisoners getting out after at least three months.

The Rikers' population isn't filled with violent criminals, but it poses a huge challenge to city social services. According to The New York Times, 80 percent of inmates have drug problems, 30 percent have no home, and 15 percent are mentally ill. The city's Department of Correction "runs some of the most expensive housing in the city," said Page. It reportedly costs about $50,000 a year to house each prisoner, a cost widely publicized as justification for the expensive new city program.

Prisoners with AIDS and mental illness already get substantial city help, though it took a class action lawsuit to loosen city purse strings for mentally ill ex-offenders. A judge ruled against the city earlier this year in a lawsuit filed in 1999 alleging the city was negligent in helping mentally ill ex-offenders find treatment upon their release.

The city fought the lawsuit, known as the Brad H. lawsuit, and appealed a state trial court decision, but in January settled, agreeing to provide services.

"I think if the Brad H. lawsuit hadn't happened we'd be way farther behind," said Page.

Page and others, however, credit the new commissioner of the Department of Correction, Martin Horn, as a driving force behind the new program. Horn was appointed to the post in January by Mayor Michael Bloomberg after serving a one-year stint as Commissioner of the Department of Probation.

"I've known the commissioner of corrections for a long time," said Page. "I've got a lot of respect for him.” Horn has organized daylong meetings with officials from various city departments, with the Department of Homeless Services expected to play a big role in whatever solutions the city comes up with. But the details of the program remain largely unresolved. Of the three main areas of city efforts -- drug treatment, housing and jobs -- so far, only the jobs portion is up and running.

JOBS AND BEYOND

Existing employment services for ex-offenders have differing philosophies. For example, at the Fresh Start program, run by the Osborne Association, "the basic idea is to get them excited about something," said Leigh Owens, a case manager. That program offers mini-courses in computer journalism or culinary arts, which might seem overly ambitious but often result, according to Owens, in Microsoft certification or a food handler's license, all paid for by The Osborne Association.

That philosophy contrasts sharply, however, with the main goal of the new city jobs effort, which is basically a jobs creation program offering immediate work and immediate pay for ex-prisoners, including ferrying newly released offenders from Rikers Island directly to work sites scattered across the city.

The first day out might be a job lasting from 8 a.m. to 4 p.m.. Work includes grounds-keeping and litter removal on state highways in the Bronx and Queens, as well as work in and around housing projects in Upper Manhattan and Brooklyn such as whitewashing and clean-up. The work is typically done in groups of about six, with one on-site supervisor. Workers earn federal minimum wage but get a check at the end of each day, usually about $30.

The city program has two tracks, a two-week track and a six-week track, with ex-offenders with the least work history going on the six-week track. Ex-offenders will work four days a week, with one day of job counseling.

The idea is to try and simulate a real job situation, which means participants in the program might have long commute times. This way, former inmates can prove that they can show up for work on time every day, perhaps the most important trait employers look for when hiring new workers. The program includes an aggressive outreach program that seeks out employers willing to hire ex-offenders.

The Center for Employment Opportunities, a non-profit that has been offering similar programs for about two decades, won a three-year contract with the city to provide the job services. The method works, according to the organization, as in the past more than 60 percent of its "graduates" have been placed in full-time jobs within three months of finishing the program.

So far, only about 300 ex-prisoners have gone through the new city program, which began in August. The jobs program aims to help 2,800 prisoners by June, 2004 and about 5,000 prisoners once the program is at full-capacity. Expansion will likely involve more outdoor worksites.

WILL IT WORK?

Jobs are important, but they are only one piece of the puzzle when it comes to what experts call "discharge planning." Page notes that there are "so many things working against good discharge planning." Nationally, two out of every three ex-offenders are rearrested within three years of release.

Housing is a huge issue in New York, Page stressed, adding that the new city program must overcome existing laws and regulations targeting those found guilty of crimes. People that have certain criminal records can't live in public housing.

"Some of it is law and some of it is administrative practice," said Page, explaining that federal restrictions are really primarily about sex offenders and people who manufacture drugs. New York City has tighter guidelines, for example excluding ex-offenders from public housing for drug offenses.

"The consequences are devastating," Page said.

Owens agreed that environment plays a big role in whether or not an ex-con can stay an ex-con.

"One of the biggest problems is the surroundings, them going back into the same settings …it kind of negates your progress sometimes," said Owens.

Of course, attitudes of ex-offenders must be changed, as too many see their criminal record as an insurmountable obstacle in finding steady work. Who will hire an ex-con? But Owens, like many on staff, did his own stint behind bars, serving a yearlong sentence at Rikers Island for felony gun possession, he said. Another ex-prisoner is Maria Perez, a counselor at The Fortune Society for almost seven years. She first came to The Fortune Society because she was mandated to attend substance abuse counseling after serving time on a drug charge.

"We are living proof that it works," said Perez.

There have been no comprehensive studies that see whether recidivism rates change as a result of careful planning for discharged inmates, according to Nicholas Freudenberg, a professor and director of the Program in Urban Public Health at Hunter College. Freudenberg has worked with prisoners in city jails for more than a decade and serves on advisory boards to the new city program.

He sees the program as a good start, but also said it will need to be judged by the resources that are put into it, and can only be judged over time.

"In watching city government for 25 years," he said, "the city can lose track of a problem, especially when it's a complex problem that requires collaboration over different city agencies."



Print Friendly and PDF

Editor's Choice


Gotham Gazette: New York Voters Approve $4.2 Billion Environmental Bond Act
New York Voters Approve $4.2 Billion Environmental Bond Act
Gotham Gazette: 
New York City Voters Approve Racial Justice Ballot Measures
New York City Voters Approve Racial Justice Ballot Measures
Gotham Gazette: 
Housing Development in New York City Slows to a Crawl as Officials Debate Tax Incentives
Housing Development in New York City Slows to a Crawl as Officials Debate Tax Incentives
Gotham Gazette: 
City Council Examines Low Voter Turnout, Moving Local Elections to Even Years City Council Examines Low Voter Turnout, Moving Local Elections to Even Years