Gotham Gazette https://www.gothamgazette.com/component/tags/tag/718 Wed, 05 Aug 2020 14:11:42 +0000 Joomla! - Open Source Content Management en-gb webmaster@gothamgazette.com (Webmaster) Criminal Justice Reforms Will Not Make Enough Progress If We Don’t Also Change the Criminal Court https://www.gothamgazette.com/130-opinion/8291-criminal-justice-reforms-will-not-make-enough-progress-if-we-don-t-also-change-the-criminal-court https://www.gothamgazette.com/130-opinion/8291-criminal-justice-reforms-will-not-make-enough-progress-if-we-don-t-also-change-the-criminal-court may b28 reed

(photo: Ed Reed/Mayoral Photography Office)


While momentum is building for the New York State Legislature to pass long-overdue bills directed at bail, discovery, and speedy trial reforms that promise to make the Criminal Court fairer, will these pieces of legislation do more than make a brutal, racist machine slightly less brutal?

New York’s insidious reliance on money bail is now widely condemned and proposals for reform abound. Some have suggested eliminating cash bail except for certain designated charges. In other words, pre-trial freedom should not depend on the size of your bank account, that is unless you are charged with certain crimes. Others want to eliminate cash bail but allow for preventive detention so that in certain situations a person could be remanded -- held without even the possibility of posting bail -- based on predictions of future dangerousness.

Usually in the legislative mix is a risk assessment tool that most people believe has racial bias baked into its core no matter how hard proponents try to disaggregate. And in place of release on one’s own recognizance -- simply being released and told to return to court on another day -- is a menu of supervised release, GPS monitoring, and other types of surveillance that expand the net of governmental control and intrusion over those hauled into Criminal Court for charges minor and serious alike.    

New York’s ironically named discovery laws have rightfully been compared to a blindfold. Stories are legion of people forced to engage in plea bargaining and the crucial decision of whether to run the risk of a trial without knowing the evidence against them. Proposed reforms all dictate that the accused must have access to discovery much earlier in the process.

However, the crisis of discovery is not limited to when documents are provided to the defense. It is also a matter of what documents are provided. Some jurisdictions allow for the defense to depose the prosecution’s witnesses. In New York, the accused gets reports filled out by police officers that merely summarize what witnesses had to say. Some jurisdictions require that the complaint that informs the accused of the nature of the charges must specify the facts that support the legality of the stop and arrest, as well as facts that detail evidence of guilt.

In New York, the complaint is a template usually devoid of any details. One critical piece of discovery is the initial interview between prosecutor and arresting officer that takes place within hours of the arrest. In New York, the defense is entitled to the prosecutor’s de minimis notes from that interview. That interview should be taped, with the officer under oath, and provided to the defense at the accused’s initial appearance before a judge.  

Yet even if the new laws addressed all the concerns raised above, what needs to change is the Criminal Court itself, a heretofore intractable behemoth that grinds up everything and everyone in its path. Much as prison abolition has moved from the impossible to the imaginable, so, too, should talk of abolishing the present incarnation of the Criminal Court.

The New York City Criminal Court has proven impervious to change. During the 1980s crack-cocaine epidemic, tens of thousands of drug-related arrests flooded the court. The court absorbed them all without as much as a hiccup. More recently, with Broken Windows, or quality-of-life, policing, the courts have been inundated with hundreds of thousands of misdemeanor cases. Again, the court took them all in without missing a beat.  

No matter what the input, or whatever legislative reforms are enacted, the Criminal Court continues to do exactly what it is designed to do -- push cases, get pleas, and move the calendar with scant concern about the constitutionality of the arrest or the sufficiency of the evidence of guilt.  

While no one can or should gainsay the importance of the proposed reforms to bail, discovery, and speedy trial, it is the Criminal Court itself that needs reform.

The court’s method, or lack thereof, of adjudicating cases has not changed since its current incarnation in 1962. It has long been appropriately referred to as an assembly line marked by a lack of adversarial litigation, as people are processed in ways that more resemble the Department of Motor Vehicles than anyone’s conception of a court.  

All the discovery in the world may not stop judges from threatening the accused with a maximum sentence if they have the temerity to insist on their right to a trial, or prosecutors from making “one time only” plea offers, or revoking offers if the accused seeks to challenge the lawfulness of their arrest.

It is about time for the Criminal Court to be evaluated on how well it enforces constitutional rights.

The stop-and-frisk federal class action in Floyd v. City of New York exposed rampant search and seizure violations. How has the Criminal Court addressed that reality? The court in Floyd also found an equal protection violation as stop-and-frisk was disproportionately inflicted on people of color. Spend just a few hours in any of the city’s criminal courts and you will see the unabashed manifestation of similarly race-based policing as 95% of defendants are people of color. What is the Criminal Court response to that reality?

There is as well the accused’s right to due process, to basic, fundamental fairness. Due process is hardly the phrase that comes to mind when you spend any time in the Criminal Court.

To be clear, bail, discovery, and speedy trial laws must be reformed. Fewer people will be held in pretrial detention, fewer people will remain in the dark about the nature of the evidence they face, and fewer people will have an interminable wait for a trial. What remains to be seen is whether these changes will transform the Criminal Court from a guardian of assembly-line justice to an enforcer of constitutional rights.

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Steven Zeidman is a professor of law at CUNY School of Law. On Twitter @SteveZeidman.

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Criminal Justice Reforms Will Not Make Enough Progress If We Don’t Also Change the Criminal Court Wed, 20 Feb 2019 05:00:00 +0000
Ten Days in the Life of a Police Reform Advocate https://www.gothamgazette.com/130-opinion/6197-ten-days-in-the-life-of-a-police-reform-advocate https://www.gothamgazette.com/130-opinion/6197-ten-days-in-the-life-of-a-police-reform-advocate prop nyc four members gangi

PROP volunteers, including the author (photo: @PROPNYC)


In a recent ten-day period I had experiences that taught me new things about bad NYPD practices, reinforced my cynicism about the lame way that mainstream politicians, including officials who self-identify as progressives, posture on policing issues, and strengthened my determination to press aggressively for fundamental and meaningful changes in NYPD policies. My organization, PROP - the Police Reform Organizing Project - continues to monitor NYPD practices and advocate for real change.

*On a monitoring visit to the Brooklyn criminal court -- PROP representatives and volunteers regularly observe proceedings in the arraignment parts of the city's criminal courts as a way of tracking NYPD 'broken windows' arrest practices -- I stood on a line of about 45 people waiting to pass through the metal detector. I was the only white person -- everyone else was African-American or Latino, the vast majority of whom dressed in clothes suggesting that they were members not of the well-to-do professional class, but of the low-income or working classes.

*On that morning, the Brooklyn misdemeanor arraignment part heard 34 cases, all men of color whom the police had arrested and locked up. Each of these men walked out of the courtroom, meaning essentially that no court official, including in most cases the prosecutors, considered the defendants dangerous or predatory. The charges included suspended license, theft of services (usually fare-beating), marijuana possession, disorderly conduct, and open alcohol container.

*At a meeting later that day, a fellow police reformer reported that he had recently attended a police/community meeting where neighborhood residents had a discussion with officials from the local precinct. The community members expressed concern about a recent armed robbery and asked what the police were doing about it. The officials responded by saying that they were "summonsing like crazy," meaning that police officers were issuing many criminal summonses to people in the neighborhood for representative 'broken windows' infractions/activities like being in the park after dark, littering, carrying an open alcohol container, or riding a bike on the sidewalk. Community members raised the pointed question: But what are you doing to actually investigate the crime and catch the perpetrators?

*At a meeting with a journalist and me, a police officer who is considering coming forward to publicize the ill effects of the NYPD's quota system on officers and New Yorkers alike, reported on the following matters: under the pressure to "make their numbers" each month, some officers working in a precinct with a cemetery within its borders will issue what are known as "cemetery summonses," meaning that they will enter the graveyard and write up tickets with the names of dead people that that they find on the tombstones. Some precincts - those that serve white well-to-do areas, for example - have no quotas. One of the first questions that an officer new to an inner-city precinct asks is: "What is the number?" And, again under the pressure of the quota system, some officers will for most of the month ignore a neighborhood "hot spot," a place where crime such as drug dealing or prostitution takes place in the open, and if they have not met their quotas, will round up the people at those sites at month's end.

*A PROP volunteer, a teacher who instructs students at night classes in the City College system, reported the following stories that he heard during a class discussion about discriminatory NYPD practices: two students of color, both women - one African-American and the other Latina - recounted unsettling encounters with officers on select buses in the Bronx. In one case the woman couldn't at first find the receipt when the officer approached her, so the officer began writing up the summons; she did eventually find it, but when she displayed it, the officer said that it was too late, that he had already filled out the ticket; she has refused to pay the fine and plans to fight the ticket. In the other case, the woman made a mistake in pressing the buttons of the ticket machine at the bus stop and ended up with 2 tickets for handicapped people which totaled the same amount, $2.50, as a regular ticket; the officer still issued a summons and, in this case, rather than take the time that she couldn't afford to oppose the summons, the woman paid the fine.

*PROP released an analysis of the NYPD's misdemeanor arrest practices for 2015, revealing that 87 percent of those arrests involved people of color compared to 85.8 percent in 2013 and 86.5 percent in 2014. To demonstrate the blatant racism associated with these practices, we focused on some specific kinds of arrests including theft of services, or fare-beating, which at 29,198 was the NYPD's most numerous arrest category for last year. Fully 92 percent involved people of color - in fact, in our year-and-a-half of court-monitoring work, we have observed only a handful of white defendants charged with theft of services. Spokespeople for City Hall and the Police Department made statements in response focused on safety on the subways, but that did not address the extraordinary racial imbalance reflected in the numbers that PROP had spotlighted.

Despite these numbers and accounts that demonstrate the undeniable racial bias and deep injustices involved in the NYPD's current application of quota-driven 'broken windows' policing, our city's leading politicians, including Mayor Bill de Blasio and City Council Speaker Melissa Mark-Viverito, announce and occasionally enact the softest kind of modifications that do nothing to fundamentally change or end the NYPD's abusive and discriminatory practices.

Out of political considerations - it would be too risky to promote the fundamental police reforms needed - they have effectively abandoned one of their main constituencies: low-income New Yorkers of color, leaving them to the harsh treatment and societal marginalization that result from the practices and policies of the NYPD and the city's criminal justice system.

It is up to us police reformers and other concerned New Yorkers to keep hammering away at these issues. Despite our frustration and disappointment of the moment, we know that silence will kill all hope of achieving our shared goal of a fair, safe, and inclusive city for all New Yorkers.

***
Bob Gangi is Director of the Police Reform Organizing Project. On Twitter @PROPNYC.

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Have an op-ed idea or submission for Gotham Gazette? Email opinion@gothamgazette.com

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Ten Days in the Life of a Police Reform Advocate Sat, 27 Feb 2016 14:20:35 +0000
Shut Down the Criminal Court https://www.gothamgazette.com/130-opinion/6190-shut-down-the-criminal-court https://www.gothamgazette.com/130-opinion/6190-shut-down-the-criminal-court courtroom


City Council Speaker Melissa Mark-Viverito should be commended for using her State of the City address, titled "More Justice," to call for criminal justice reform. She rightly observes that "we need more justice in the justice system" and ticked off some specific goals, including reducing the population at Rikers Island, creating civil procedures for minor violations, and improving the warrant process. However, the speaker must aim higher if she truly wants "more justice." More specifically, just as she referred to the "dream" of shutting down Rikers Island, so too should she call for abolishing the present Criminal Court.

While the tactics of the NYPD have been subject to vigorous debate, and the horrific conditions at Rikers Island have been increasingly exposed, the Criminal Court, the entity that reviews arrests and metes out sentences, has been free from any serious scrutiny.

Last year, about 350,000 people were arraigned in the city's Criminal Courts. More than 90% of the defendants were black or Latino. Only 14% of the cases were felonies and owing to Police Commissioner Bill Bratton's devotion to "broken windows" policing, misdemeanors and violations accounted for a whopping 81%. Almost 60% of those cases ended at arraignment, the accused's first appearance before a judge - a moment in time when the prosecutor, defense attorney, and judge don't know much of anything about the charges, the accused, the arresting officer, or any actual victim. This is not anyone's conception of a "court."

The speaker's call for "more" justice assumes there is already some amount present. It is hard to imagine the word "justice" occurring to anyone observing the court in action. Instead, it is as it has always been – an assembly line concerned primarily, if not exclusively, with rushing through cases. It is no secret that court administrators regularly evaluate judges on the speed with which they move their calendars and the number of guilty pleas they obtain in the process.

Most people assume that the Criminal Court adjudicates guilt or innocence with witnesses testifying under oath, an attentive jury, and a judge at the helm. In fact, there are virtually no jury trials in the Criminal Court as defendants are pressured in myriad ways to plead guilty or resolve their cases in any way other than a trial.

Consider this – the average time citywide from arraignment until the start of jury trial is 570 days. In the Bronx it is 826 days. Who can languish in jail or repeatedly come back to court for that long a period of time without experiencing emotional strain, missed work, missed school, etc.?

More deliberately pernicious is the time-honored "trial tax" – defendants are aware that they will get severely sentenced if convicted for having the temerity to exercise their constitutional right to a trial by jury. The result? In 2014, there were only 175 jury trials in the entire New York City Criminal Court (about 1/20 of 1% of the cases that entered the court the same year). On the other hand, there were about 175,000 guilty pleas.

Most people assume that the Criminal Court adjudicates the constitutionality of the arrest, as even non-lawyers are familiar with the prohibition against illegal search and seizure. However, pretrial suppression hearings, where officers testify under oath and judges determine whether they acted legally, are as rare as jury trials. It took a trial in federal court for a judge to find that the NYPD was engaging in hundreds of thousands of violations of the Fourth Amendment and the Equal Protection Clause. If the Criminal Court focused on its role as protector of constitutional rights and less on its self-imposed mandate to speed through cases, the stop-and-frisk debacle might have been stopped in its tracks years earlier.

What, then, does the Criminal Court actually do? Twenty-five years ago, a colleague examined Criminal Court data and argued that the court didn't do anything of substance. He found that the court failed to assure that persons accused of crime are accorded their rights under law, failed to seriously assess guilt or innocence, failed to mete out any kind of meaningful sentence to those ultimately convicted, and cost the taxpayer a huge sum of money. He pointed to the lack of adversarial litigation and concluded that the Court's essential function was taking guilty pleas to minor charges. As a result, he suggested it should be abolished.

I disagreed then, and still do now, with his finding that the Criminal Court didn't do much of anything significant. The Criminal Court does many things. Daily, it processes a multitude of young men of color, saddles them with arrest or criminal records, and renders them less employable, less likely to get into college, less able to get loans, less able to get licenses, etc. That reality breeds frustration, pain, anger, and alienation.

The Criminal Court brings in revenue. Ferguson, Missouri is not the only city that grows its coffers through its criminal justice system. In 2014, fines, surcharges, bail and related fees netted $31,884,569 - that's just under $32 million.

Ultimately, the Criminal Court is a highly efficient instrument of social control that maintains the status quo (or, as our Mayor might say, it perpetuates a tale of two cities).

Yet, while I reject my colleague's conclusion, I agree wholeheartedly with his ultimate recommendation -- the Criminal Court should be abolished. This goal is not so far-fetched. Consider that while advocates for prison abolition were initially seen as wild-eyed dreamers, we now hear that Speaker Mark-Viverito's "dream" of shutting down Rikers Island even has the support of New York Governor Andrew Cuomo.

Mayor Bill de Blasio conceded that the Criminal Court needed to be re-examined several months ago when he announced his "Justice Reboot" initiative. However, meaningful change requires more than shutting down and restarting or tinkering with the same basic program. The usual slate of reforms offered to improve the Criminal Court – generally centered around the supposed need for swifter dispositions – will accomplish little. A reduced backlog won't change the color of the defendants nor the continued meting out of unnecessary and undeserved criminal records.

Speaker Mark-Viverito recognizes the dysfunction that characterizes the Criminal Court. She is creating a commission, headed by New York's former Chief Judge Jonathan Lippman, charged with re-imagining "our entire criminal justice system."

To his credit, Judge Lippman has already promised to "pull no punches." That is exactly the right approach. The Criminal Court hasn't been fundamentally changed since its inception in 1962 and has repeatedly been referred to as a system in crisis. It is well past time for a new approach that focuses on assessing the nature and quality of justice delivered instead of the quantity and alacrity of cases disposed. Isn't that the true measure of a "court?"

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Steven Zeidman is a professor of law at CUNY School of Law.

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Have an op-ed idea or submission for Gotham Gazette? Email opinion@gothamgazette.com

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Shut Down the Criminal Court Wed, 24 Feb 2016 21:23:54 +0000