Gotham Gazette Sun, 31 May 2020 11:38:51 +0000 Joomla! - Open Source Content Management en-gb (Webmaster) New York’s Next Step Toward More Justice and Better Democracy parollee restor oped

Questioning which New Yorkers can go to the polls (photo: Gotham Gazette)

Practicing social distancing is by no means easy, but the guidelines are simple: maintain six feet of distance from others, avoid crowded environments, public bathrooms, and shared dining facilities, and to blow off steam, go outside. Stick to the guidelines, health officials assure us, and we can all help protect each other, especially the vulnerable. 

But many of the most vulnerable people during the COVID-19 crisis are those whom most of us will never see and for whom social distancing is simply impossible: people behind bars. Prisons were not designed to prioritize personal space; moreover, many have faced overcrowding for years. At least 462 incarcerated people in New York state have tested positive for the novel coronavirus and 1,204 prison staff have as well. According to the Marshall Project, the number of undiagnosed infections in prisons is likely much higher. Tragically, at least 373 incarcerated people have died across the country from COVID-19 related illness. 

Yet even after facing those conditions while paying their debt to society, many of those who complete their sentences and reenter the public will have no voice in our collective future. That’s because New York, unlike 19 other states and Washington, D.C., denies people on parole for felony convictions the right to vote. It’s time to fix this with new legislation.

To be clear, thanks to Governor Cuomo’s issuance of voting rights pardons since 2018, most people on parole can currently vote. The governor’s staff began conducting a monthly review of everyone recently released on parole and the governor uses his pardon power to individually restore voting rights to each person living in the community and successfully completing the terms of their parole.

But the process is more cumbersome than it needs to be, both for the people rightfully having their voting rights restored and for the government. Moreover, voting rights shouldn’t depend on the discretion of one person. The governor has used his pardon power justly, to welcome people living in our communities into our democracy. But a future governor could depart from that practice—we’ve seen it happen in other states.

That’s why we are among the state senators co-sponsoring Senate Bill 1931. This legislation would make rights restoration automatic upon release from prison and provide those released an opportunity to register to vote right away.

We prioritized democracy reform at the beginning of this legislative session because we’ve heard loud and clear from our constituents that it is what they want. We need to make it the law that people on parole can vote, not just the policy of the governor. These are our neighbors. They work and pay taxes, and they should have a say in choosing those who levy them. They send their children to public schools, and they should be able to decide who oversees those schools.

State after state has acknowledged this obvious truth in recent years. In 2019 alone, Colorado, Nevada, and New Jersey passed laws restoring the right to vote to everyone living in the community, with New Jersey’s governor signing that state’s law this past December.

There is no good reason we shouldn’t do the same, and formally codify the governor’s policy here in New York. The criminal justice system has determined that each person on parole has served their time and is ready to return to their community. We all have an interest in welcoming them back with open arms and encouraging healthy reintegration. Until we change the law and make clear that their voting rights are not something bestowed upon them by the generosity of the governor, we send exactly the wrong message: that their voices don’t matter and they don’t have a real stake in what happens in their communities.

In fact, the history of New York’s criminal disenfranchisement laws makes clear that they were never aimed at accomplishing some good policy goal. They date back to a 19th century attempt to evade the mandate of the Fifteenth Amendment to the U.S. Constitution—to deny black men the right to vote.

These days the law is still discriminatory, but it also serves to sow confusion and waste government resources. Because the governor has to use his pardon power to restore voting rights, the process is needlessly complicated. Each month, the state corrections department sends the governor a list of everyone released and on parole the previous month. The governor’s staff then individually confirms each person’s eligibility before issuing a voting rights pardon. His staff then continuously monitors the parole status of each of the 30,000 people with a pardon to ensure they remain eligible.

This isn’t just a lot of work, it means that it is still impossible to give a simple, straightforward answer about whether people on parole can vote. Since the restoration process is not automatic, there is a four- to six-week gap between when someone is released from prison and when they have their rights restored. That means people cannot be told they have the right to vote on their way out. And we’ve heard that even people who do have a pardon have faced skepticism or misinformation when they try to register.

The bill we are co-sponsoring would clear up the confusion. It would set thousands of New Yorkers immediately on the path to reengaging in a positive way in their communities, something that has only become more important in the age of COVID-19. We urge our colleagues in the Legislature to join us in passing this bill, continuing New York’s journey to becoming a national leader in democracy.

State Senators Zellnor Myrie and Leroy Comrie represent parts of Brooklyn and Queens, respectively. On Twitter @SenatorMyrie & @LeroyComrie.

Have an op-ed idea or submission for Gotham Gazette? Email

New York’s Next Step Toward More Justice and Better Democracy Sun, 24 May 2020 04:00:00 +0000
The Governor’s Clemency Negligence gov health dep

Governor Cuomo (photo: Mike Groll/Office of Governor Andrew M. Cuomo)

At his daily coronavirus press briefing on Sunday, April 26, Governor Cuomo was asked  whether he had any plans to grant broad clemencies to people in prison, particularly to vulnerable populations. His testy and dismissive response – “How about if they are violent and just started their sentence?” – was telling. Presumably, the governor meant to remove from consideration people he believed remained a threat to public safety and had not been sufficiently punished.

The reporter’s question was ultimately about the perilously unsafe conditions in New York state prisons as nearly 1,300 staff and incarcerated people have already tested positive for COVID-19.  The governor’s apparent disregard for anyone recently convicted of a violent crime is reminiscent of times when convicted people were sent to places like Devil’s Island where leprosy and other diseases flourished, and tens of thousands of incarcerated people died.

Public health officials in New York, nationally, and all over the world have cited prisons as petri dishes for the spread of the virus, and have called on government leaders to release people so that it becomes  somewhat possible to maintain social distance and stay alive in prison. Otherwise, especially for those the CDC defines as most at-risk from COVID-19, numerous prison sentences will transform into death sentences. 

Even engaging in the clemency debate on the terms spelled out by the governor, what about releasing those convicted of violent crime who have served twenty, thirty, forty, or more years?  Countless people in New York state prison have served decades, many defined by remarkable achievement and transformation.

They have completed, facilitated, designed, and implemented programs; they have obtained GEDs, associates, bachelors, and masters degrees; they have learned several trades; they have the support of people inside the prison and robust re-entry plans with family members who are waiting, and praying, with open arms for their release. And, to the governor’s stated concern about violence, they are older and, as every study ever done shows, have aged out of any likelihood of committing another crime. They are no threat to public safety, and have much to offer their families, communities, and society at large

Thousands of people in New York State prisons have submitted clemency applications, many well before the coronavirus outbreak. Many of the applicants are elderly. Many have health issues. Very few “just started their sentence.” Countless among them merited clemency in their own right before COVID-19 came behind the bars. Now, their meritorious applications are joined by the urgency of a public health crisis of untold magnitude.  

While clemency is usually cast as an act of mercy or charity, at this moment it is a matter of life and death. The governor’s power to grant clemency is firmly rooted in the state constitution. It is well past time for Governor Cuomo to use it.  

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

Have an op-ed idea or submission for Gotham Gazette? Email

The Governor’s Clemency Negligence Tue, 28 Apr 2020 04:00:00 +0000
The State Legislature Claims To Be Co-Equal, So Why Is It Letting The Governor Block Popular Solitary Confinement Restrictions greene corr fac gov cuomo

Gov. Cuomo at a correctional facility (photo: governor's office)

On April 3, New York Governor Andrew Cuomo rammed through a budget that will be devastating to New Yorkers and then on April 4 declared that the legislative session was “effectively over” for the year. Several legislators immediately pushed back.

Comments from legislators on social media ranged from “Hell no” to “King Cuomo seems confused” to “Oh cool. So now there’s just one branch of government?” Assembly Speaker Carl Heastie immediately issued a statement in response, emphasizing the Assembly as a “co-equal branch of government” and stating that the session is not over and that they established a system of remote voting. Senate Majority Leader Andrea Stewart-Cousins had previously stated that they “intend to continue to do our work,” that they had set up a system to do so remotely, and that the Senate and Assembly are “co-equal branches” with the Governor.

While there are many ways that the Legislature can, and must, exert its authority as in fact a co-equal branch of government and show that New York has a functioning democracy with an independent legislature, there may be none as obvious or urgent as passing the HALT Solitary Confinement Act, (S.1623/A.2500), which has majority support in both houses. Among other provisions, HALT would end all forms of solitary confinement beyond 15 days, in line with international standards on torture, and create more humane and effective alternatives.

Every day that the Legislature fails to enact HALT means thousands of people - overwhelmingly black and Latino people - suffering, deteriorating, and too often dying in solitary confinement. Every year that goes by without legislators having an opportunity to vote on the bill means tens of thousands of New Yorkers being locked in six-by-nine cages and tombs.

This practice of inhumane torture has gone on far too long. Solitary causes such deterioration and intense suffering that self-mutilation is a regular known outcome. Solitary is associated with increased rates of heart disease, psychosis, and death -- while people are in solitary and when they return home to the outside community. I am a solitary confinement survivor and the collateral damage from my time in solitary still affects me today.

While the United Nations has deemed any length of time in solitary as torture in some circumstances and solitary beyond 15 days as torture in any circumstances, New York regularly holds people in solitary for months and years, and sometimes for decades. In the words of some New York legislators themselves, “That is wrong. It is cruel. It is inhumane. It must stop.” “I can think of no practice more inhumane than solitary confinement.” “It has no business in the state of New York.” “What should have happened already, we are demanding a vote.” “I wanna vote for that damn bill now.

HALT currently has 34 Senate co-sponsors (a majority is 32) and 79 Assembly co-sponsors (a majority is 76), and many additional legislators in both houses have committed to vote for the bill. A wide range of legislators -- from Long Island to Syracuse to New York City -- have been vociferously and relentlessly calling for HALT to be brought to a vote. There is not another bill in the Legislature that has this number of co-sponsors and this level of support.

Despite this widespread support and more than enough votes for passage, the bill has not yet been brought to a vote. In 2019, Governor Cuomo pushed the legislative leaders to not bring HALT to a vote and so they did not. In 2020, with all of the outcries of “pass HALT now” from legislators and community members across the state, now is the moment.

In a functioning democracy, with independent and co-equal branches of government, when a majority of legislators are ready to vote for a piece of legislation that piece of legislation must be brought to a vote, passed, and put on the Governor’s desk. It is long past time for a vote on HALT. Leadership must resume the legislative session remotely and bring HALT to a vote immediately.

Victor Pate is a survivor of solitary confinement and the Lead Statewide Organizer for the #HALTsolitary Campaign. On Twitter @mrvictorpate & @NYCAIC.

Have an op-ed idea or submission for Gotham Gazette? Email

The State Legislature Claims To Be Co-Equal, So Why Is It Letting The Governor Block Popular Solitary Confinement Restrictions Wed, 22 Apr 2020 04:00:00 +0000
Bail Reform Rollbacks are a Dangerous Failing of Moral Courage 3 albany ltgov duffy grad

State lawmakers wrongly bowed to law enforcement pressure on bail reform, the author writes (photo: governor's office)

Predictably, and disappointingly, the New York State Legislature rolled back last year’s historic and hard fought bail reforms at the eleventh hour. It was an act of cruelty after providing our communities the briefest of reprieves following the historic enactment of bail reform just three months ago, on January 1.

Less than two minutes of floor debate allowed racists and prison profiteers to win in their crusade to diminish the reforms, condemning thousands more black, brown, and poor New Yorkers to our broken system of mass incarceration. While the debate was over quickly, the consequences will be felt for generations.

The changes decrease public safety and increase New York’s role in mass incarceration. More misdemeanors are back on the books as eligible for money bail, as are several non-violent felonies like grand larceny in the first degree and criminal possession of a controlled substance in the first degree. In practice, the law blames poor people for the conditions our governments impose on them, allowing factors like lack of stable housing and employment to increase the likelihood of destabilization, arrest, and pretrial detention.

District Attorneys will almost certainly exploit the expansion of bail eligible cases, maximizing their ability to jail the poor pre-trial by upcharging and overcharging incidents as hate crimes or domestic violence. Worse, the rollbacks will result in at minimum hundreds, possibly thousands, more to be incarcerated — possibly preventing the supposedly imminent closure of the Rikers Island jails.

From the moment the clock struck midnight on January 1 and New York’s bail reforms went into effect, critics of the changes and defenders of the status quo went on the attack, determined to undo key measures of justice. They painted a false picture of chaos and anarchy throughout the state, perpetuating the assumption that not forcing legally innocent poor people to remain in jail would make our communities unsafe.

The myth that bail reform would lead to lawless anarchy was absurdly false, but effective at creating a bogeyman. The reality is the now-rolled back bail laws worked. For every cherry-picked, misrepresented case in the media, thousands of black, brown, and poor people were being released pending trial like their wealthy, white counterparts had been for so long. They returned to court, and rates of violent crime did not increase. Lives were saved. Families were spared the intergenerational violence and trauma of incarceration. Housing and jobs were kept. Communities are safer because people with mental health and substance use issues had opportunities for treatment, instead of suffering the cruel, dual punishments of inadequate healthcare while locked in a jail cell.

If the opposition’s aim was merely to create safe and healthy communities, they would be working alongside criminal justice reform advocates to expand public health interventions, affordable housing, education and community-based programs. Opponents of bail reform had a different aim than public safety. Their goal is to reclaim more control over the justice system that remains filled with black, brown and poor New Yorkers. This twisted investment in systemic racism and addiction to punishment comes at the cost of real human lives.

There are legislators who will look at this archaic return to yesteryear and try to tell you the rollbacks aren’t as bad as it could’ve been. That they saved us from “dangerousness” being added to the books, but we know better. One missing tool in a toolbox of oppressive measures isn’t enough to stop a system that is swallowing entire communities whole.

Do not be fooled. There are no heroes here. Any call that these changes are minor is an act of deceit. When taken from the state Capitol building and brought into our criminal courtrooms, the increase in incarceration will be anything but minor.

What is happening here in New York isn’t new. When slavery was abolished, racists adapted and we were met with the Black Codes and convict leasing. When that system as it existed “fell” we eventually received mandatory minimums, three strikes, stop-and-frisk, and broken windows policing. It is no different today. As we fight to dismantle our racist oppressive systems, our opponents are working tirelessly to build new supports to continue to prop them up.

In these recent state budget negotiations, New York’s elected officials had the choice to stand strong and defend bail reform. Instead they chose to retreat and uphold a system of mass punishment -- based on the lies of the very people who directly profit from incarceration and state violence against black, brown, and poor people.

Governor Cuomo and the New York State Legislature failed the test of moral courage.

Tiffany Cabán is a national organizer with the Working Families Party. On Twitter @tiffany_caban.

Have an op-ed idea or submission for Gotham Gazette? Email

Bail Reform Rollbacks are a Dangerous Failing of Moral Courage Thu, 02 Apr 2020 04:00:00 +0000
Amid Coronavirus Crisis and Beyond, Equal Justice for All, Including U.S. Senators corona justice

Equal justice for all, whether a top elected official or not, the author writes (photo: Wikimedia Commons)

Alongside the daily coronavirus news come allegations about shocking abuses of power. Several United States senators, most notably Senators Burr and Loeffler, allegedly used non-public information — confidential congressional briefings about COVID-19 — to sell stocks whose prices they believed would drop due to the pandemic. Even worse, while taking steps to profit from the coming pandemic, both assured constituents that there would be no public health or economic crisis. Instead of pushing the president to act sooner, they lulled segments of the public into complacency. This alleged conduct is morally abhorrent and possibly illegal

But if history is any guide, any prosecution of these senators is likely to proceed far differently from the typical prosecutions of everyday Americans. The coronavirus has laid bare so many stark inequities in our society, like access to health care, economic ability to do social distancing, and even access to coronavirus testing. This crisis is also further revealing terrible truths about the inequities of our criminal justice system — inequities long in need of sweeping reform for the sake of justice, now also more urgently than ever for the sake of public health. 

Consider the disparity between what these senators would face in the criminal justice system with what is faced by ordinary people, so many of whom are currently at risk for coronavirus infection because of their unnecessary incarceration. 

Based upon my time as a federal prosecutor focused on public corruption, here is likely what will happen next to the senators, if they’re investigated. Federal prosecutors will analyze the stock trades, interview people who attended closed-door briefings with the senators, and subpoena the senators’ financial records. Defense lawyers will have the chance to meet with prosecutors before any charges are brought; they’ll be shown incriminating evidence and given the chance to argue that no charges should be brought. If charges are brought, Senators Burr and Loefller will be permitted to turn themselves in rather than be arrested, the judge will set an affordable bail amount, and they will subsequently enjoy ample process, a speedy trial, and, if found guilty, fair treatment post-conviction. 

This process will bear little resemblance to what happens every day to ordinary defendants: quick arrests often followed by little to no investigation, exorbitant bail beyond the defendant’s reach, slow or last-minute disclosure of evidence the prosecutor will use at trial, elusive trial dates adjourned for years, and, if found guilty, abhorrent prison conditions and re-sentencings for technical parole violations.  

This situation was dire before the coronavirus. Our country’s incarceration rates are historically high and well out of line with other countries. Our jail and prison population has ballooned by 500% over the last 40 years, and we are home to 5% of the world, but 25% of incarcerated persons. Research demonstrates that these high incarceration rates do not make us safer.   

Now, it’s dire from both a criminal justice and public health perspective. People already in custody and those arrested during the pandemic will be at a heightened risk for contracting the coronavirus. Arresting people and taking them to the courthouse involve multiple interactions during which the coronavirus may spread. People in jails are in overcrowded spaces, unable to practice social distancing, and with little or no access to soap.  

Advocates, elected officials, and some law enforcement leaders have pointed to immediate steps to shrink the jail and prison populations: halt arrests for low-level offenses; end cash bail (or, in New York’s case, maintain recent bail reforms); stop imprisoning people for technical parole violations; and release incarcerated people at high coronavirus risk because of age or health conditions, whether through clemency or other methods. These measures are critical from a justice perspective: in the current situation, failing to take these measures will be tantamount, for many, to a death sentence. But it’s also a matter of public health and reducing the spread of the virus. 

The coronavirus has led to a swift unmasking of many unjust fault lines in our law and society. Just as coronavirus tests should be available to everyone, not just the connected or famous, a criminal justice system that’s compassionate, effective, and fair should be available to everyone, not just those who are wealthy, or who happen to be senators. 

Alvin Bragg served as Chief Deputy New York State Attorney General and a federal prosecutor in Manhattan. He is a Visiting Professor, Co-Director of the Racial Justice Project at New York Law School, and candidate for Manhattan District Attorney. On Twitter @AlvinBraggNYC.

Have an op-ed idea or submission for Gotham Gazette? Email

Amid Coronavirus Crisis and Beyond, Equal Justice for All, Including U.S. Senators Tue, 31 Mar 2020 04:00:00 +0000
Rolling Back Bail Reform Amid Coronavirus Outbreak Would Be Additionally Irresponsible sochie bail reform

Sochie Nnaemeka, the author (photo: @sochiesays)

In moments of crisis, we see what our leaders value. Over the past week, coronavirus has spread to Rikers Island. Our state should be focused on keeping detained New Yorkers and correctional workers safe and healthy. Instead, elected officials may roll back bail reforms in response to fear-mongering by opponents of the new law. If our leaders in Albany choose to reduce the number of people eligible to await their trial from home, the jail population could grow during a dangerous pandemic. We must put human safety over punishment and refuse any changes to the bail system.

For too long, New York’s “justice” system disproportionately kept innocent black, brown, and low-income people in cages before even being convicted—all because they were too poor to buy their freedom. While the wealthy were always able to walk free, these communities were caught in an endless cycle of punishment. It took decades of grassroots leadership and activism led by black and brown organizers to finally change a blatantly racist, classist system in meaningful ways.

Republicans, District Attorneys, and law enforcement that have a vested interest in past and present inequities are doing anything they can to claw back their power to incarcerate even more people. And some state officials are already caving to the fear-mongering by proposing regressive bail rollbacks.

There is nothing more cynical or cruel than choosing to put more people in jail during a pandemic.

Behind the negative headlines, we know there are tens of thousands of lives being changed for the better because of the new bail reforms. All across the state, we are hearing stories of New Yorkers who can now continue their lives and care for their children, rather than senselessly languish in jail and have their lives upended. People who need treatment for substance use or mental illness can get access to the support they need, rather than sitting in jails that have little to no health services.

Bail changes should be left alone regardless of any new developments unrelated to their efficacy. But to roll back bail reform in the midst of this pandemic would mean the state considers certain people’s lives expendable, including thousands of people whose only crime is being poor.

At a time when Governor Cuomo is telling New Yorkers to remain home, stay six feet away from others, and avoid crowds, he cannot simultaneously support sending more New Yorkers to crowded, unsafe jails. Our elected officials should instead focus on releasing vulnerable New Yorkers who are at increased risk of illness and reducing the jail population.

What if the New York State Legislature committed itself to building a state that treated all New Yorkers with dignity and equal justice? As head of the New York Working Families Party, I know our members expect progressive leaders to govern with courage and moral clarity — not to operate within the same fear-based framework that maintained a racist justice system for so long. In this moment of crisis, we’re calling on New York state leadership to reject the politics of fear and put the health and welfare of all New Yorkers, including some of the most vulnerable, first. 

Sochie Nnaemeka is New York Working Families Party State Director. On Twitter @sochiesays & @NYWFP.

Have an op-ed idea or submission for Gotham Gazette? Email

Rolling Back Bail Reform Amid Coronavirus Outbreak Would Be Additionally Irresponsible Fri, 20 Mar 2020 04:00:00 +0000
What’s Really Behind Efforts to Reform Bail Reform? A Familiar Theme police grad cere

Law enforcement officials have pushed for bail reform rollbacks (photo: Governor's Office)

The hyperbolic vitriol about bail reform in New York should be viewed in context – it is but one example of the ways those with entrenched power in the criminal legal system rebel against even the slightest diminution of, or threat to, their authority.

Despite a growing movement for change, police officers, prosecutors, and judges cling to their absolute power to arrest, prosecute, and adjudicate with scant concern for due process, equal protection, or basic fairness. 

Law enforcement representatives went on the offensive as soon as the reality set in that bail reform meant fewer people would be held at Rikers Island and other jails. NYPD Commissioner Dermot Shea penned an op-ed decrying the bail reforms and began lobbying in Albany for reforms of the reforms before the ink in the law books was barely dry. Shea’s Chief of Department, Terence Monahan, at precinct meetings with community members predicted an outbreak of violent crime. 

District Attorneys also rallied to defend their threatened prerogatives. While prosecutors are supposed to enforce the law, it seems they spend much time figuring out ways to circumvent it, particularly as it relates to the recent bail, discovery, and speedy trial reforms. Last year, Bronx District Attorney internal documents revealed trainings in techniques to overcome speedy trial rules. More recently, a presentation at the New York State Prosecutors Training Institute included ways to avoid the impact of bail reform.      

Perhaps the most telling example of prosecutorial unwillingness to cede even some control has been the outcry over having to provide the accused with speedy discovery of the evidence against them. It has been reported that the new obligation to comply with that fundamental constitutional right, a rule long recognized in virtually all other states, caused several prosecutors to resign.   

Complaints about bail reform and new discovery obligations are hardly the only examples of opposition to meaningful reform of the criminal legal system. The ongoing fight over public access to police officer disciplinary records is another example of organized resistance to reform. New York Civil Rights Law §50-a, known accurately as the police secrecy law, restricts public access to a police officer’s disciplinary records even when there are serious and credible allegations of misconduct or violence. Efforts to fully repeal §50-a and put New York State in line with the rest of the country are vehemently denounced by the NYPD.

Prosecutors have supported this police campaign too, in an indirect yet effective manner. Even with §50-a on the books, prosecutors have the power to address part of the problem and to avoid relying on police officers with dubious credibility. Last year, Gothamist/WNYC reporter George Joseph reported that the city’s elected District Attorneys maintain secret databases that track police officer dishonesty. In some cases, prosecutors have created “do not call” as a witness lists of certain police officers. And yet these lists had not been provided to the accused, or their lawyers, who were arrested by these very same police officers.  

Prosecutors have also organized resistance against other reforms that threaten their power. Consider the bipartisan legislative effort to create a Commission on Prosecutorial Conduct to review and investigate alleged prosecutorial misconduct. The bill’s stated purpose was to provide for a more transparent and just system. Prosecutors across the state denounced from the inception the very idea of outside oversight and claimed, without any hint of irony, that it violated their due process rights.

Nor is it only DAs and the NYPD who actively fight to reject reform of the criminal legal system. The courts, too, are determined to maintain the existing distribution of power, even if it means violating laws directed at limiting their actions. Two judges recently deliberately flouted the law by setting bail against the accused in circumstances explicitly prohibited by the new bail statute. 

On a broader level, mimicking law enforcement, judges have taken to airing their opinions in public, calling bail reform a threat to public safety and predicting a spike in crime. Ironically, as judges rail against the new bail laws and demand greater discretion over when and on whom they can set bail, they ignore the point that it was in large part their irresponsible exercise of judicial discretion that led to the need for bail reform in the first place. Rather than rebel against reform it would be more appropriate for the judiciary to express collective contrition for having jailed so many people who lacked enough funds to pay their way home.

The hostility to any expansion of rights for the accused is manifest not just in New York’s lower courts, but all the way up to the Court of Appeals. Professor Vincent Bonventre of Albany Law School catalogued what seems like a concerted effort by the majority of judges to reduce the number of criminal cases heard by the Court. Even more troubling than the Court’s disinterest in hearing criminal appeals is the overwhelmingly pro-prosecution voting records of most of its judges. In 2017 and 2018, excluding cases where the Court was unanimous, Judges Jenny Rivera and Rowan Wilson voted in favor of the prosecution in less than 30% of the cases, while the rest of the members of the court ruled in the prosecution’s favor between 70% and 98% of the time. In fact, one judge sided with the prosecution in 96% of the cases in 2018 and 100% of the cases in 2017.   

The Court’s unsympathetic approach to the rights of the accused is reflected in individual cases even more so than in the overall number of appeals denied. Luis Alvarez was convicted of brutal crimes committed when he was 19 years old. He was sentenced to 66 2/3 years to life – in other words, to die in prison. Years later, he challenged his sentence on the grounds that his appointed appellate lawyer failed to provide basic effective assistance of counsel by neglecting to challenge his sentence as unduly harsh and excessive. 

The majority of the Court was not troubled by the death by incarceration sentence imposed on a teenager, or the obvious incompetence of appellate counsel, and denied Alvarez’s motion. Judge Rivera in her dissent detailed the many defects in the appellate brief, including that it contained several one-sentence paragraphs, misspellings, grammatical and typographical errors, and lacked citations to cases in support of legal arguments. The entire brief was 20 double-spaced pages, including the table of contents, even though the trial lasted three months and yielded a 4,000-page transcript. In contrast, the prosecutors’ brief was over 175 pages. 

The majority of the Court minimized the many faults Judge Rivera highlighted (though noting that the brief was “somewhat terse, could have been better drafted, and is not a model to be emulated”), and ruled that Alvarez received effective assistance of counsel. 

Judge Wilson in his dissent, besides noting the “atrocious” quality of the brief, wrote about the man Alvarez had become and why it is wrong to prejudge the entire future of a teenager. Judge Wilson noted Alvarez’s positive disciplinary history in prison, his record of programmatic achievements, and his current medical condition – Alvarez’s cancer went undiagnosed until it metastasized, and he is now a paraplegic. Judge Wilson closed his dissent by asking how anyone would feel about the quality of appellate counsel if Alvarez was their son. You don’t have to be a legal scholar to know the answer to that question.

The outrage over bail reform reveals much more than outrage over bail reform. It exposes the entrenched nature of the criminal legal system as ferociously dedicated to maintaining absolute power and the status quo. While the criminal legal system is not unique among governmental entities intent on maintaining a brutal grip on power, the concerted effort to eviscerate bail reform provides clear evidence that all efforts to impose even a modicum of fairness and decency on the criminal legal system will face near pathological resistance.

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

Have an op-ed idea or submission for Gotham Gazette? Email

What’s Really Behind Efforts to Reform Bail Reform? A Familiar Theme Tue, 10 Mar 2020 04:00:00 +0000
Coronavirus, Criminal Justice and Civil Liberties port authority bus

(photo: Benjamin Kanter/Mayoral Photo Office)

While New York’s public health system is doing its best to combat the coronavirus, we need far more assurance from elected officials, especially those involved in our criminal justice system, that they are ready to protect our civil liberties in this emergency. As a civil rights attorney, I know that we must meet this moment with a response that honors public safety, protection from discrimination and price-gouging, civil liberties, and regard for those most marginalized, including people in our jails. We cannot sacrifice our basic values in the name of emergency.

Public health is a matter of public safety, and that is why we must give our health officials the resources they need to fight the coronavirus. But too often in these emergencies, marginalized communities are left behind, whether they are people in NYCHA public housing, homeless shelters, or jails and prisons. This health crisis is also a justice issue.

We must protect vulnerable populations in jail and prison, which are dangerous breeding grounds for a disease like the coronavirus. People are held in close quarters in unsanitary conditions, with medical facilities that are strained under normal circumstances. There is reason to believe a local federal facility is already experiencing issues.

We should explore “medical furloughs” for elderly people being held in our jails and prisons to be removed during the pendency of the outbreak if they have safe places to live in the community. Elderly people in prison with active clemency applications should have those expedited and approved when appropriate. Likewise, we should impose a moratorium on jailing technical parole violators. These individuals, who have broken parole rules (rather than the law), pose virtually no public safety risk, and now is not a good time to crowd jails with them. Consider that Iran has released more than 54,000 people from its prisons to slow the spread of the disease.

We must defend civil liberties, which are always tested in times of crisis. On Monday night, Governor Cuomo pushed through legislation that would confer upon him extraordinary powers to suspend laws and enact new measures to respond to not only this emergency, but events as vague as “storms.” The New York Civil Liberties Union and progressive leaders like State Senator Gustavo Rivera correctly criticized the reckless manner in which this sweeping law was passed. And within our city, should the spread of the virus worsen, we must be very careful about not implementing restrictions on movement that will actually make it harder to fight the disease - such as shutting down forms of transit used by our healthcare workers. On this we can learn from the South Koreans in Daegu, who have promoted transparency and made few impositions on liberty even under a much more severe outbreak.

We must combat price-gouging, especially as hand sanitizer and other products become harder to come by. There is already a law against price-gouging during an emergency, and Senator Brad Hoylman has introduced good legislation that would strengthen it. The law empowers the New York Attorney General to fine culprits, but that will only deter companies if they think they’ll be held accountable. That’s why the city’s District Attorneys and other relevant agencies such as the New York City Department of Consumer Affairs should publicize easy ways to report price-gouging.

We must be vigilant against discrimination. We should follow the lead of Assemblymember Yuh-line Niou and denounce media depictions that promote anti-Asian sentiment. Likewise, we must reject the Trump administration’s castigation of Iranians, Mexicans, and other groups this administration will “other” during the outbreak. If that sounds obvious, remember our city is less than a decade removed from succumbing to right-wing Islamophobia during the “Ground Zero Mosque” controversy, when two-thirds of New Yorkers opposed building a Muslim community center. Should tensions rise, we must be unequivocal: we will not allow discrimination to flourish. This is a global crisis, we are all in this together.

This is a serious moment for our city, and some of our leaders are nowhere to be found. Implementing the right health response will require steady leadership,  robust coordination, and aggressive outreach from our government. By honoring values like civil liberty, thinking creatively, and protecting marginalized communities rather than succumbing to fear, New York City can show national leadership in its response, and prove itself ready for more 21st century challenges ahead. 

Janos Marton is an attorney and a 2021 candidate for Manhattan District Attorney. On Twitter @janosmarton.

Have an op-ed idea or submission for Gotham Gazette? Email

Coronavirus, Criminal Justice and Civil Liberties Thu, 05 Mar 2020 05:00:00 +0000
Fare Evasion Shouldn’t Be a Crime; Neither Should Putting Your Feet Up on the Subway brooklyn bridge ave 33rd cityhall

Policing the subways (photo: Benjamin Kanter/Mayoral Photo Office)

If you’ve ridden the subway recently, you could be forgiven for feeling watched. The MTA’s fare evasion crackdown is ubiquitous; subway cars are plastered with phrases like “We’d rather your $2.75 fare than your $100 fine.” Governor Cuomo’s surge of 500 NYPD and MTA cops has increased police presence in the transit system noticeably. In response, hundreds of people protested in January in Grand Central station, activists jumped turnstiles en masse, and New Yorkers are using social media to alert fellow riders to police presence in subway stations.

The crackdown should concern New Yorkers, because fare evasion enforcement is highly disproportionate. According to the most recent NYPD data, 92% of the 481 fare evasion arrests in the fourth quarter of 2019 were of non-white riders; 60% were black. Data like that led New York Attorney General Letitia James to announce a probe of racial disparities in fare evasion stops. For all this, the MTA is projected to lose money, spending $249M on new officers to recover $200M in fares, though the cops are also said to be for other purposes, like combatting robbery and assault, including on transit workers.

While the fare evasion crackdown is now familiar to straphangers, what might surprise some New Yorkers is that it isn’t just jumping the turnstile or committing more serious crimes that can get you arrested on the subway. Under New York state law, violating the MTA rules of conduct is punishable by up to 10 days imprisonment. As the New York Times has reported, this means that putting your feet up on a seat could land you in jail.

Other offenses include carrying open liquids, walking between train cars, playing music on a stereo, or carrying an animal outside of a container. Getting arrested for taking up an extra seat is probably not something most subway riders worry about, but the infrequent use of these laws does not lessen their serious consequences. For immigrants, a police encounter on the subway could be a first step toward deportation.

Fortunately, there are other ways to protect the transit system’s revenue stream and promote orderly conduct without jeopardizing the personal liberty of riders. In Washington, D.C., the city council voted to decriminalize fare evasion, overriding the mayor’s veto. That does not mean that jumping the fare gate in the capital no longer carries any consequences. Rather, fare evaders are subject to a civil fine of up to $50. What got less attention is that D.C.’s reform also decriminalized smoking, eating, littering, playing music, carrying animals, and more on the Metro. Those offenses too are punishable by a $50 fine. Another model New York could adopt is that of Portland, Oregon, where fare evaders are now granted 90 days to resolve their cases out of court. 

Law enforcement in New York City has recognized that fare evasion prosecutions do not advance public safety. In 2017, Manhattan District Attorney Cy Vance announced that he would not prosecute subway fare evasion, unless there is a “demonstrated public safety reason to do so.” That is a good step, which recognizes that public safety resources are best prioritized on other matters. However, it leaves the door open to arbitrary enforcement, still requires offenders to participate in a diversion program, and widens enforcement disparities with the outer boroughs. It also calls into question the rationale for continued fare evasion arrests at all. 

Legislators in Albany should follow the lead of these other jurisdictions, and repeal criminal penalties for both fare evasion and violating the MTA rules of conduct. This would not be an invitation to bad behavior, but it would make the punishment for these offenses far more proportionate. New York City has already had great success with this approach in other areas. Under the city’s Criminal Justice Reform Act of 2016, offenses like public urination, carrying open containers of alcohol, violating park rules, littering, and making excessive noise now carry civil, rather than criminal, penalties in most cases. That change resulted in tens of thousands of fewer criminal summonses being issued, and over 644,000 outstanding arrest warrants being dismissed.

If we want to meaningfully reduce mass incarceration, and make our society less punitive, we must not think of the criminal law and incarceration as the only tools to enforce rules. Decriminalizing public order offenses on the transit system would be an important step in that direction. Being poor should not be a crime, either. Fixing the subway cannot just be about improving arrival times, it must also include doing justice for all New Yorkers who rely on it. 

Sam Rubinstein is a law student at the University of Michigan. On Twitter @Sam_Rubinstein.

Have an op-ed idea or submission for Gotham Gazette? Email

Fare Evasion Shouldn’t Be a Crime; Neither Should Putting Your Feet Up on the Subway Tue, 03 Mar 2020 05:00:00 +0000
A Renewed Appreciation for Freedom, and for Serving My Community alkbrook1

Alec Brook-Krasny (photo: @AlecBrookKrasny)

Twenty years ago, when I first ran for office, I was not like most other candidates. Democracy was not something I was born into. Instead, I left the country where I grew up and traveled across the world to trade the oppression of the Soviet Union for the freedom of the United States. As a result, when I asked my neighbors to elect me to the New York State Assembly, it was because I wanted to give back to the community and country that had welcomed me with open arms and helped me to achieve the American Dream.

Twenty years later, as I now announce my candidacy for the New York City Council, I am still not like most other candidates. But what sets me apart is not just that I had to fight to find freedom. Now, what sets me apart is that I have had to fight to hold onto my freedom.

In 2017, I was falsely accused of crimes I did not commit.

It was easy, at first, to feel lost. Overwhelmed. Even defeated. After years of dedicating myself to the community and public service, my life had become synonymous with a lie. No matter how strongly I maintained my innocence, no matter how much evidence my lawyers and I turned over showing that I had done nothing wrong, it seemed like everyone else, especially the prosecutors, refused to listen.

But once the shock wore off, and the reality of the situation sunk in, I knew I had to stand my ground. Innocence must not compromise. Baseless as the charges against me were, I knew that once a jury heard my case—once my peers sat in judgment—the facts would carry the day.

Three years since, after being fully exonerated, I feel lucky. Not lucky to have won—I always believed that the truth would succeed—but lucky to have been in a position to win. Lucky that I found great lawyers—lawyers who never wavered in defending me and never suggested I plead guilty to crimes I did not commit. Lucky that I had resources—mounting a defense costs huge amounts of time and money, and for me, even when I ran out of money, my lawyers still stuck by me, so great was their belief in my case. Lucky that I had support—friends, family, my community, and many more all stood strongly behind me.

Most of all, I am lucky to have been the exception, not the rule. 

Countless others will never have the chance to properly defend themselves. Without access to top lawyers, without resources, without a support system, anyone can fall through the cracks. For those people, the overlooked, ignored, forgotten, I will fight. I will ensure that our justice system provides the necessary tools to help people not need luck. Laws like the expanded right to counsel, discovery reform, eliminating cash bail, and increased funding for alternatives to incarceration are all positive steps towards a justice system that is equal and bent toward compassion for all it serves.

Twenty years ago, when I first ran for office, I asked my neighbors to give me the privilege of representing them. During my time in the Assembly, we achieved so much. We increased financial support for public schools, Coney Island Hospital, and subsidized housing. We enacted anti-violence programs that made our communities safer, especially for seniors. And we worked together to recover, rebuild, and revitalize after Superstorm Sandy. After all that, leaving the Assembly was one of the hardest decisions I ever made, but it was the only way for me to provide for my family.

Today, however, I am forced to ask myself: what good is providing for your family if our institutions fail to protect them? Whether by rebuilding our criminal justice system or fixing public transportation, lifting up struggling schools or supporting workers and small businesses, I am running for City Council to answer that question head-on. I am ready to stand for Bensonhurst, Coney Island, Gravesend, Sea Gate, and beyond, to make sure that the future is as bright for our children as it ought to be.

Alec Brook-Krasny is a former Assemblymember and candidate for City Council in the 47th District. On Twitter @AlecBrookKrasny.

Have an op-ed idea or submission for Gotham Gazette? Email

A Renewed Appreciation for Freedom, and for Serving My Community Tue, 25 Feb 2020 05:00:00 +0000