Gotham Gazette https://www.gothamgazette.com/component/tags/tag/168 Wed, 16 Oct 2019 08:10:00 +0000 Joomla! - Open Source Content Management en-gb webmaster@gothamgazette.com (Webmaster) I’ve Seen It First-Hand Over Decades and Know: Rikers Cannot Be Redeemed https://www.gothamgazette.com/130-opinion/8850-ive-seen-it-first-hand-know-rikers-cannot-be-redeemed-richards https://www.gothamgazette.com/130-opinion/8850-ive-seen-it-first-hand-know-rikers-cannot-be-redeemed-richards Rikers jails de Blasio

On Rikers Island (photo: Michael Appleton/Mayor's Office)


The narrow bridge to Rikers Island still puts a knot in my stomach. In the late 1980s, I spent two years behind bars in one of the eight active jails on Rikers. Back then, crossing that bridge meant disappearing from society and entering a world defined by violence and inhumanity.

Little has changed. These days, I visit Rikers regularly as vice chair of the Board of Correction, the independent oversight body for New York City jails, and as executive vice president of the Fortune Society, an organization that helps people succeed when they come home from jail and prison.

Rikers still sends one message to everyone who crosses that bridge, no matter if you’re a correction officer, incarcerated person, or visitor: you are worthless. People feel like animals, caged and mistreated. They react accordingly.

During my first year at Rikers, this combustible mix exploded into a riot led by people brought down from upstate prisons for legal proceedings in the city. In theory, these men should have been happy to be closer to their families. But to visit Rikers, their loved ones still had to spend all day traveling to the island for just an hour together—as my father once did when I was jailed on Rikers. I hated to see the effect on him so much that I asked him not to come back.

The men from the state prisons experienced the same pain. The anger they felt from mistreatment by correction officers and the brutal physical conditions of Rikers drove them to barricade themselves in their housing unit and erupt in the mess hall.

Thirty years later, violence still permeates Rikers, where hints of disrespect are met with force. The jails remain inaccessible to families, lawyers, and other much-needed connections to the outside world. The conditions are still dehumanizing. During the July heatwave, I toured the jail where I was held so many years ago. The cinder blocks and metal worked like an oven. Officers patrolled in shirts drenched with sweat. A few cheap fans pushed around hot air, never reaching the people sweltering in their cells or stationed at their posts.

The vast majority of people at Rikers are awaiting trial, as I was. Almost all of them are people of color. Every day, nearly 800 people must be bussed to and from courts in the boroughs at cost of $41 million a year.

Moving around inside the poorly-designed jails is also difficult, requiring an officer escort down hallways that can stretch hundreds of yards. Too often, incarcerated people do not make it to medical appointments, family visits, recreation, commissary, and court. Cases are delayed, anger rises, and health suffers.

We can change this. In April 2017, after years of pressure, Mayor Bill de Blasio committed to shutting down the Rikers jails, reducing the number of people locked up by half or more, and holding this smaller jail population in facilities near the borough courthouses.

Since then, the number of people in jail has dropped by thousands. Our city remains as safe as ever, demonstrating we do not need mass incarceration to achieve safety.

This week, the City Council will vote whether to authorize four redesigned borough jails that will enable the permanent closure of the eight jails on Rikers and the jail barge moored to Hunts Point.

This plan is a once-in-a-generation chance to close Rikers and replace it with something far better, and far smaller. But no one should underestimate how hard it is to close an institution like Rikers.

It will require more changes to police and district attorney practices. It will take continued reforms in Albany, like passing the Less Is More Act to fix New York State’s broken parole system.

It will also require approval of the smaller borough system under consideration by the City Council. The initial designs for these facilities would promote safety and facilitate re-entry. Located much closer to courthouses and public transit, they would speed up cases and increase access for attorneys, family members, and others. They would be more accountable to oversight, leading to better conditions.

In final negotiations, the Council can improve the current plan by securing major community investments, so people never end up in jail in the first place. But this plan has to pass or we will be stuck with the horrors of Rikers for decades to come. We cannot allow the quest for the perfect to stop us from doing what is right.

Since I came home to the Bronx, I have dedicated myself to helping others succeed. The sprawling, unmanageable, and violent jails on Rikers undermine that goal and our communities. Let’s end this disgraceful chapter in our history.

***
Stanley Richards is Executive Vice President at The Fortune Society, a member of the Independent Commission on Criminal Justice and Incarceration Reform, and a member of the Justice Implementation Task Force. On Twitter @Stan_Fortune of @thefortunesoc & @MoreJustNYC

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I’ve Seen It First-Hand Over Decades and Know: Rikers Cannot Be Redeemed Mon, 14 Oct 2019 04:00:00 +0000
Fighting and Dying for Dignity in Prison https://www.gothamgazette.com/130-opinion/8829-fighting-and-dying-for-dignity-in-prison https://www.gothamgazette.com/130-opinion/8829-fighting-and-dying-for-dignity-in-prison attica corr fac

(photo: Wikimedia Commons)


Last week, my friend and client Carlos passed away in the custody of the New York State Department of Corrections. His life had been filled with so much suffering and pain, and yet he showed me only friendship and kindness during the three years I was privileged to know him. Known to his friends and family as Carlos, Edgardo Gonzalez was a professional boxer before he was sent away to serve a sentence of 50 years to life after an attempt was made on his life in a South Williamsburg bar and he killed two people.

He had fought Olympic champion Howard Davis at Madison Square Garden in 1977, had a daughter he loved more than life, several brothers and sisters, nieces and nephews, and a mom and dad whom he was so proud to be able to financially support during their lifetimes. He was one of the toughest guys I’d ever met, a Lower East Side legend, but he was warm and patient and always checked in on me during our weekly calls. 

Once inside the prison walls, Carlos earned his master’s degree and an impeccable institutional record. He received one disciplinary ticket in 36 years for having an “untidy cell” after he was found with a photograph of his mother on his cell wall. Carlos tried his best to maintain relationships with his family members despite the barriers placed between them, but he was mostly alone and left to grow old in prison.

I met Carlos while attending law school at City University of New York School of Law. Together with two classmates we filed a clemency application on his behalf in 2018, which was never even acknowledged by the Governor’s office or supported by the supposedly progressive elected officials we reached out to. Hundreds of pages and years of dedication to his personal growth were discarded. A cruel and false sense of hope taken from Carlos. 

A year later, after 36 years behind bars and a diagnosis of liver failure absolutely brought on by years of medical neglect and the toxic prison environment he’d endured, I requested and was finally granted a medical parole board hearing for Carlos where his release would be considered 15 years ahead of its scheduled date

At the beginning of August, I sat with Carlos, a 75-year-old man who lost his breath when he said more than a few words, to prepare for a hearing that would unearth decades-old traumas and memories from what seemed like another life to him now. He would be forced to claim full responsibility in a room of ex-cops and prosecutors, people who knew nothing about what incarceration does to a person, a family, a soul, and would diminish all the successes he had earned no thanks to the system that locked him in a cage, a system that tried and finally succeeded at killing him. 

After 36 years of solitude and hopelessness, and despite all his physical pain, he found the strength to do this. He opened himself up to an audience who had taken everything from him, the same kind of minds that believed in jail sentences that last entire lifetimes. He found the grace to thank them. 

About a week later, Carlos called me while opening the letter that would grant him his release. He said, “Does this mean I’ll be free?” I said yes, soon. He cried and said he wished he wasn’t so sick.

Carlos fought so hard, but before parole would approve his placement in his family’s home, a process that may have taken months or up to a year, he was rushed to a non-prison doctor and hospital where they found his body incurably riddled with cancer. It was too late for any treatment, a doctor said to me while asking that I make decisions about his end of life care. I was also too late and the system too slow, and his hope was once again lost. 

Carlos held my hand when I visited him last week and we looked out his hospital window at a view of trees and concrete, prison guards surrounding his bed. He said, “I was so close and now I’m so far.” At the hospital in Westchester, we were less than 30 miles from the neighborhood he grew up in New York City, closer than he’d been in nearly 40 years. He joked with me, at least I think he was joking, saying I should flush his ashes down the toilet when he passed. I said no way, Carlos, your soul will be reunited with your sweet mom and dad in Puerto Rico when you go.

I am heartbroken and angry, and I am in court each day trying to be there and be outraged for my clients who are also fighting for their hope and survival.

I have clients who tell me they’d rather kill themselves than go to jail. It is long past time to abolish jails and prisons, and, as implored by my former professor, urgent and immediate action must be taken to rectify the massive and inhumane sentences handed down to Carlos and thousands of others. Prosecutors and judges must support efforts at resentencing, the Legislature must reform a punitive parole system, and the Governor must grant clemency to countless people languishing in prison. 

Prison killed Carlos and despite my pleas the system refused to let him die a free man. He had more than earned that last dignity if you believe such a thing needs to be earned, but he did not get it. Prison guards surrounded him in his final moments, often watching his television at a volume that prevented him from resting and blocking his medical providers’ access to him.

Every day, jails and prisons take lives, and those losses are almost exclusively suffered by communities of color. Prison walls are not built just to keep incarcerated people locked inside, but to keep the rest of us from looking in. We must refuse to accept the lie that prison is about rehabilitation. The only thing these systems of incarceration believe in is taking every last thing, especially hope, from the humans they trap inside.

Prosecutors, judges, police, court officers, prison guards, caseworkers, parole officers, and defense attorneys all participate and are culpable in the process of dehumanizing those inside. Carlos worked for decades to show them who he really was, so much more than a “body” or the worst thing he’d ever done, and he never quit. He died fighting to be free. 

Thank you, Carlos, for sharing some of your precious time with me and for teaching me more than I could ever put into words. It was a privilege to sit by your side and bear witness to the end of your life. Your struggle will be remembered, and I will continue to fight, harder than ever, for you.

***
Claire Stottlemyer is a graduate of CUNY School of Law and a lawyer with the Legal Aid Society’s Criminal Defense Practice in Manhattan.

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Fighting and Dying for Dignity in Prison Wed, 02 Oct 2019 04:00:00 +0000
Sentenced to Death by Incarceration in New York State Prison https://www.gothamgazette.com/130-opinion/8807-sentenced-to-death-by-incarceration-in-new-york-state-prison https://www.gothamgazette.com/130-opinion/8807-sentenced-to-death-by-incarceration-in-new-york-state-prison eastern correctional facility ny1

Eastern Correctional (photo: wikimedia commons)


The conversation around criminal justice reform is finally moving from general talk about mass incarceration to the specific reality of the multitude of people serving massive sentences. The more accurate description of these sentences – death by incarceration – is replacing antiseptic phrases like “life without parole.” These long-term sentences are, in truth, sentences to death in prison. 

Several years ago, the Defenders Clinic at CUNY Law School began working with people serving death in prison sentences on their only path to freedom: gubernatorial clemency. While we have worked with only a small fraction of the nearly 9,000 people serving life sentences in New York, it is enough to reveal the criminal legal system’s obsession with processing, convicting, and punishing.    

Virtually everyone we have worked with was convicted after a trial, the case for most people serving life sentences in New York. This raises two questions: why weren’t those cases resolved through plea negotiations like virtually all other criminal cases, and what was the justification for meting out massive sentences on people who exercised their constitutional right to trial?

In several cases, we heard from clients that the defense lawyer never mentioned any plea offer. In many others, we heard about plea offers being superficially conveyed but virtually no time spent having the difficult yet crucial discussion of the pros and cons of a plea versus a trial. We repeatedly heard about a complete lack of advice from the attorney about the wisdom of accepting or rejecting a plea offer.

It became clear from conversations with lifers that many of their assigned lawyers had been eager to take cases to trial and forgo the serious consideration of a plea, especially since most were being paid an hourly rate by the court and had a financial incentive to take a case to trial regardless of the risks to their clients.     

Almost all the people we worked with were represented by a lawyer assigned by the court. They had no say in who their lawyer was and had no realistic way of replacing that lawyer (and many tried). Over and over we heard the same thing: ‘my lawyer did not come to the jail to meet with me a single time while my charges were pending.’

We also learned that the failures of many of these attorneys did not end with the lack of client counseling. Considering the enormous sentences handed down after trial, perhaps the lawyers’ greatest deficiency was at the sentencing proceeding itself. In most cases, there was no pre-sentence memorandum supporting an argument for a lesser sentence and no mitigation advocacy of any kind.

In several cases, sentencing advocacy consisted of a few generic sentences from counsel asking the court to be lenient. In one case, there were serious pretrial issues regarding the accused’s mental capacity, but at sentencing the defense counsel said nothing about his client’s documented history of mental illness.    

It would be a grievous mistake to blame defense counsel for all the ills that define the criminal legal system. After trial, prosecutors routinely asked judges to impose the maximum sentence and judges were glad to oblige, often tacking on consecutive sentences to ensure that the person would die in prison -- and to send a loud message to anyone else who had the temerity to insist on the right to a trial.

One man was offered a plea of three to nine years, went to trial, and is currently serving 25 to life. Another was offered 25 to life pre-trial yet sentenced after trial to 125 to life. Some argue that plea offers are a discount and a necessary ingredient of the adjudication of criminal cases in an imperfect system. However, such disparate outcomes – 25 to life if you plead, 125 to life after trial – cannot be justified. 

As we spent more time with those serving life sentences, we saw the impact of a merciless and punitive system in countless ways.  

Many lifers are from rapidly gentrifying parts of New York City. Most were sentenced in the 1980s. They are black and Latinx. A majority are from places like Bedford-Stuyvesant, Crown Heights, and the Lower East Side. Their families were long ago priced out of the neighborhood as long-neglected zip codes have changed so drastically that the lifers would barely recognize where they grew up.  

In New York, there are 613 lifers who were 17 and under at the time of their charges. There are thousands more convicted when they were 18, 19 or in their early twenties. Many are now in their forties and fifties having served decades in prison for crimes committed in their youth when labels like “super-predator” fed into racist narratives and massive sentences.  

Yet neuroscience now informs us that brain development continues into our mid-twenties. Even the Supreme Court now recognizes that youth have an underdeveloped sense of responsibility, are less culpable than adults, and have a greater capacity for rehabilitation. A growing number of states have passed laws that give young offenders an opportunity to seek parole or a sentence reduction after having served a proscribed number of years in prison. There is no similar movement afoot in New York to correct those morally indefensible, and arguably illegal, sentences.

There is a rapidly growing aging population in New York prisons. These people have long since aged out of any real possibility of future criminal behavior. Many are dying. New York has a mechanism in place for compassionate release for those with terminal illness but from 2013-2017 only 72 people were granted medical release.  

Many law students came to this work inspired by Innocence Projects across the country. We have worked with several people with undeniable innocence claims that have fallen on deaf prosecutorial and judicial ears. But while the students wanted to join the battle for justice for the wrongly convicted, they soon discovered a much larger area of unjust convictions – the many lifers who, even if not factually innocent, were denied any semblance of due process.  

One man’s lawyer, unbeknownst to him, had a pending lawsuit against New York City based on an incident where a client less than a year earlier slashed him with a razor during a visit in the holding cells. As part of that lawsuit, the lawyer testified that he was seeing a psychiatrist and had trouble relating to clients.  

Another man’s lawyer, unbeknownst to him, was under investigation by the very same District Attorney’s office prosecuting him. The lawyer was indicted soon after the verdict (and ended up in state prison), and a new lawyer appeared at sentencing.

In another case, the defense claimed that a prosecution witness had been coerced into testifying falsely by the prosecutor. That prosecutor thereafter became a defense attorney and is now in federal prison for suborning perjury.

Another man is serving a life sentence based on a case where the lead detective turned out to be a serial murderer for the mob. The police file in the case is nowhere to be found. 

In each of these cases, all appeals were fought by the prosecution and denied by the court.

Since we were working with people serving life sentences, many students assumed that these were people convicted of murder; people who had taken a human life. However, many of the lifers we’ve worked with were convicted of felony murder, a rule that allows a person to be charged with murder even if the death is at the hands of someone else. Several people did not kill anyone, fire any shots, possess a weapon, or have any intention, or even expectation, that anyone would be killed. Still, because they participated in an underlying robbery, they were convicted of felony murder and given a life sentence. Several of these men were teenagers at the time they were arrested. There is a growing movement for states to reconsider the felony murder rule, but New York is missing in action.

We have worked with only a small number of the people serving life sentences in New York, and an even smaller percentage of the 47,000 people in state prison. Nevertheless, we have found ample reason to fear that the impact of long overdue criminal justice reforms, trumpeted daily and endorsed by countless politicians, may be far less than hoped until the extant incarceratory system within which those changes operate is dismantled or radically overhauled.

Meanwhile, it is time to demand clemency for the countless number of people who merit that relief, and to create second-look mechanisms that require immediate review of the massive sentences that fed mass incarceration. 

***
Steven Zeidman is a professor of law at CUNY School of Law and a former Public Defender. On Twitter @SteveZeidman.

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Sentenced to Death by Incarceration in New York State Prison Fri, 20 Sep 2019 04:00:00 +0000
How to Close Rikers with No New Jails https://www.gothamgazette.com/130-opinion/8795-how-to-close-rikers-with-no-new-jails https://www.gothamgazette.com/130-opinion/8795-how-to-close-rikers-with-no-new-jails comm ublic hearings

(photo: John McCarten/City Council)


While not surprising from a political perspective given Mayor de Blasio's support for the plan, the City Planning Commission's recent vote to approve the very costly (about $9 billion current estimate) construction of new jails for the worthy purpose of closing the deeply inhumane facilities on Rikers Island was wrong and wrong-headed.

As the City Council now considers the four-jail plan, one in each borough but Staten Island, it should recognize that the city can take the much smarter and cheaper course: sufficiently reduce the overall jail population so it can close the Rikers jails and house the remaining imprisoned New Yorkers in the already-existing borough facilities, which have the capacity to hold about 3,000 people.

Here's how and why:

About 70% of the approximately 5,000 New Yorkers confined on Rikers are pre-trial detainees, presumed innocent under our system of justice, locked up mainly because an NYPD officer has arrested them and they are too poor to afford even the low bails set on them. The major bail reforms passed in Albany earlier this year will, as of January 2020, substantially limit the kinds of cases where judges can apply bail, thereby contributing to a significant reduction in the number of people remanded to Rikers.

None of the many sentenced people confined on Rikers have been convicted of serious offenses. If they had been, they would have been sent to a state prison. Many of them serve terms of 90 days or fewer. The city could readily find alternative ways to respond to most, if not all, of their cases.

Mayor de Blasio has rejected the blue-ribbon Lippman Commission's most important recommendation, which is to decriminalize four offenses: fare evasion, sex work, marijuana possession, and gravity knife possession (Albany did enact legislation in June legalizing the latter).

De Blasio backs NYPD "broken windows" policing, which targets and arrests low-income New Yorkers of color for petty infractions, sometimes via false arrests and bogus summonses, that police virtually ignore in white areas. Ending this starkly biased law enforcement tactic and following the Lippman Commission's proposal to decriminalize offenses above would contribute appreciably to reducing the population on Rikers.

In addition to ending "broken windows" practices, the city should jettison the NYPD quota system that puts pressure on officers to make a prescribed number of arrests and stops and to issue a certain number of summonses in order to earn positive job evaluations and to qualify for promotions and sought-after posts. While NYPD brass deny the existence of quotas—they are illegal, after all— a number of whistle-blowing officers have attested publicly (and privately to PROP representatives) about their use and the consequent harmful effects on cops and the community.

The Department is known, for example, to sanction officers who do not "make their numbers" by assigning them to precincts far from their homes -- dubbed "transportation therapy" -- or by denying them time off even for family emergencies.

The city could and should establish a task force accountable to City Hall that monitors court case processing. New York City's legal culture permits our courts to move much more slowly than other municipal systems in our country. The task force can, for instance, put pressure on judges to limit the number of court appearances per case as a way to prevent the longtime incarceration of detainees -- the tragic case of Kalief Browder comes to mind -- as they await disposition of the charges against them.

As city officials talk up new “modern” jails, the famous George Santayana quote is noteworthy here: "Those who don't remember the past are condemned to repeat it." I have worked on prison and related issues for nearly 50 years and cannot recall a single instance in history where promises that the new proposed facility will break the cycle of corruption and abuse that plague jails has become reality.

Opened in 1931, Attica was the most expensive prison in the world, advertised as being equipped with all available modern amenities and as being safe and humane. Similar claims were made regarding Rikers Island when the city opened jails there in the 1930s.

People now claiming that the proposed new jails, run by the same Department of Correction and personnel responsible for Rikers, will not feature the same harsh and perilous conditions of confinement as Rikers are drinking an age old Kool Aid -- some are engaged in pouring it.

Closing Rikers without spending billions of dollars on unneeded new jails —under this no new jails plan the city will have to allocate some funds to fix up, and improve conditions inside, its existing borough facilities—will not only remove from our great city's landscape the stain of operating notorious Rikers jails. It will also eliminate some of our police and criminal justice systems' abusive and discriminatory practices that inflict harm and hardship on vulnerable New Yorkers every day. Our city will be a better place for it -- more just, safe, and livable for all our people.

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

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How to Close Rikers with No New Jails Thu, 19 Sep 2019 04:00:00 +0000
New York Must Pass the 'Rape is Rape' Bill https://www.gothamgazette.com/130-opinion/8783-new-york-must-pass-the-rape-is-rape-bill https://www.gothamgazette.com/130-opinion/8783-new-york-must-pass-the-rape-is-rape-bill gov andcuomo doc

(photo: the governor's office)


At the end of August, NBC New York ran a story about a young woman who was raped after going out to a Manhattan bar. Despite the fact that she came forward, wanting justice to be done, the Manhattan District Attorney refused to prosecute the case.

When a reporter questioned his decision not to pursue charges, DA Cyrus Vance’s staff shared a letter he wrote to Governor Andrew Cuomo insisting that he cannot bring forth rape charges in cases in which victims were voluntarily intoxicated. In other words, if you go out in Manhattan, get drunk, and end up being raped, there is nothing the Manhattan DA can do for you.

It’s a disingenuous claim.

The idea that “prosecutors cannot bring sex crime charges in cases where the victim becomes voluntarily intoxicated and was unable to consent” is simply untrue. We know it’s untrue because the Manhattan DA himself brought charges in a similar case: People v. Johnson.

In that case the Manhattan DA secured a Rape 1 indictment where the victim was voluntarily intoxicated. The Appellate Court ultimately vacated the conviction, but only because DA Vance’s office botched the plea deal. 

This is not the first time DA Vance has declined to press charges in a sexual assault investigation, and he’s not the only one with a follow-through problem. Time and time again, law enforcement fails survivors of sexual assault. It’s not a problem unique to DA Vance or New York City but a nationwide “epidemic of disbelief” as Atlantic writer Barbara Bradley Hagerty put it.

Survivors of rape are regularly met with skepticism. Though it’s the police who investigate and DAs who secure convictions, the state Legislature cannot be absolved of responsibility.

Currently, under New York state law, only forced vaginal penetration is considered rape while forced oral and anal contact are labeled criminal sexual acts. Not only is this definition restrictive, it is archaic. There are consequences to this omission: refusing to call rape by its name reduces the perceived severity of the crime.

The Rape is Rape bill (A00794C) would amend the penal code to redefine rape to include forced anal and oral contact, and eliminate the penetration element that is legally necessary to establish that a vaginal rape has occurred.

At first glance, the bill appears an easy sell. Who would disagree that forced anal or oral sex should be considered rape? Equally important is the underlying question. Who would argue that the law shouldn’t recognize that a man has been raped? Well, the District Attorneys Association of the State of New York, for one. The lobbying arm of the state’s DA association has proved a major hindrance to any sort of progressive reform and in 2013, then-DAASNY President Cy Vance wrote to the Assembly opposing the bill on bogus claims that it would reduce penalties for sex crimes. 

A similar reluctance to evolve has pervaded the NYPD’s approach. Up until this year, the NYPD was undercounting rape in New York City by as much as 38%, excluding reports of forced oral and anal contact in its official reporting system despite a state mandate to include these crimes in its statistics. Following the Newsy report, we called on the NYPD to immediately bring its system up to federal standards, and the department did.

While the NYPD works to implement a “victim-centered” approach – a result of a scathing city Department of Investigation inquiry that found the Special Victims Division was undertrained and understaffed – the Legislature must do its part and pass the Rape is Rape bill in January, when the next legislative session begins.

And our work does not end there.

We must also elect District Attorneys who will be thoughtful in their prosecutions of sex crimes and take all rape cases seriously, not just the ones they think they can win.

It is especially important that we have DAs who understand that the Penal Code should not only be used to prosecute crimes, but to inform the public of what is acceptable behavior. When we call a rape—whether it is vaginal, oral, or anal—anything but rape, we delegitimize the crime and invalidate the survivor’s experience.

Perhaps the Me Too movement is the cultural awakening this country needs to take sexual violence seriously. That being said, these cultural changes will not happen overnight and in the meantime, we implore the NYPD, New York’s District Attorneys, and the state Legislature to do better.

Everywhere we look our institutions, designated to protect, serve, and deliver justice, are failing survivors. We must take responsibility for these failures and adopt survivor-centered policies while we work to change society.

***
Dan Quart & Aravella Simotas are members of the New York State Assembly representing parts of Manhattan and Queens, respectively. On Twitter @amdanquart & @AravellaSimotas. (Quart is also a candidate for Manhattan District Attorney.)

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New York Must Pass the 'Rape is Rape' Bill Mon, 09 Sep 2019 04:00:00 +0000
NYPD Continues Move Away from Criminal Penalties for Low-Level Offenses, But Racial Disparities Remain https://www.gothamgazette.com/city/8768-nypd-fewer-criminal-penalties-for-low-level-offenses-racial-differences-remain https://www.gothamgazette.com/city/8768-nypd-fewer-criminal-penalties-for-low-level-offenses-racial-differences-remain maydbd coord off

(photo: Michael Appleton/Mayoral Photography Office)


The New York City Council’s effort to reduce the criminalization of low-level, non-violent offenses through legislation passed in 2016 has continued to further achieve its aims for the third year in a row, as the NYPD makes fewer arrests and hands out fewer criminal summonses, opting instead for civil fines. But there remain concerns about racial disparities in law enforcement, as an overwhelming number of citations are handed out to black and Latino New Yorkers.

In 2016, the Council under former Speaker Melissa Mark-Viverito passed the Criminal Justice Reform Act, creating civil penalties for low-level offenses that include public urination, open container of alcohol, breaking park rules, littering, and excessive noise. The legislation, signed by Mayor Bill de Blasio after some negotiation by the administration, allowed police officers to instead of issuing criminal summonses give civil fines, which involve a citation and court date but do not lead to jail.

Instead of involvement with the criminal justice system, many thousands of New Yorkers -- often poor, young, black, and/or Latino -- would instead be sent to a civil process through the Office of Administrative Trials and Hearings, preventing the detrimental effects of even one short trip to jail, the stain of a criminal violation on their permanent records, or arrest warrants in case of absences from court. The Council also worked with district attorneys to clear 644,000 outstanding warrants for those low-level offenses.

After the first report from the NYPD on the implementation of the CJRA, the Council touted a 90% drop in criminal summonses, and the numbers have continued to fall. In 2018, the department issued 89,908 criminal summonses, down from 424,883 in 2013. Through June 30 of this year, there were 44,382 criminal summonses issued, a pace just below last year’s.

The first CJRA report covered the third quarter of 2017, and showed 28,557 criminal summonses issued. In the second quarter of 2019, the number was down to 22,328, a reduction of 6,229. Even compared to the same period last year, there were 1,481 fewer criminal summonses issued.

The CJRA’s effects quickly became clear. In the third quarter of 2017, the NYPD gave out 2,607 criminal summonses for open container of alcohol violations, which dropped to 696 in the second quarter of 2019; public urination summonses fell from 327 to 174; littering summonses fell from 180 to 57.

Even as the city has moved from criminal to civil penalties, civil summonses have also been dropping overall. The NYPD issued only 14,908 civil summonses in the first half of 2019, down from 26,782 in the same period last year. 

Arrests have fallen from 388,368 in 2013 to 246,781 last year.

“The City Council is very proud that the Criminal Justice Reform Act has resulted in significant reductions in the number of criminal summonses given out in New York City for minor offenses that are better dealt with in civil court,” said City Council Speaker Corey Johnson in a statement. “These summonses don’t belong in criminal court because we’ve seen that they have no impact on crime rates. Unfortunately, there are significant racial disparities with respect to who gets a criminal summons in lieu of a civil summons, resulting in continued concern regarding consistent enforcement. Clearly, we need to address these racial disparities.”

As Johnson noted, enforcement remains uneven. Excluding businesses, 13,702 criminal summonses in the second quarter of 2019 were given to individuals, of whom 1,236 were white; 91% of criminal summonses were given to people of color. For comparison, out of 8,690 civil summonses given out in that same period, 15.3% were issued to whites; nearly 32% to black New Yorkers; 39.2% to Hispanics; and 7.6% to Asians and Pacific Islanders.

According to the latest available U.S. Census data, New York City’s nearly 8.4 million residents are 32.1% white; 29.1% Hispanic or Latino, 24.3% black, and 14% Asian.

Officers continue to use an exception that allows them to give out a criminal summons instead of a civil fine, vaguely citing “law enforcement reason” as a criteria. That criteria -- which an NYPD spokesperson declined to define for Gotham Gazette -- was used in 1,769 of the 22,328 criminal summonses in the second quarter of 2019, about 8% of the time, and up from 672 times in the third quarter of 2017.

There are other exceptions that allow for arrests as well, including having an open warrant or two felony arrests in the previous two years, for having ignored three or more civil summons in the previous eight years, or if an individual is on parole or probation.

An NYPD spokesperson did not address the increase in the use of the catch-all exception or the racial disparities in enforcement, but instead touted the department’s overall success in reducing crime and enforcement. Sergeant Jessica McRorie, a spokesperson for the Deputy Commissioner of Public Information, cited a five-year record that shows street-stops down more than 90%, arrests down by 37.3%, summonses down nearly 79%, and marijuana misdemeanor violation arrests down by 71%, while major felony crime fell by 14.2%.

“The NYPD has shown that we can drive crime down significantly with a far less-intrusive enforcement approach,” McRorie said in a statement. “By building stronger relationships with the community through Neighborhood Policing and a singular focus on violent crimes and those who commit them through precision policing, we have continued to drive crime down to record lows.”

Advocates have for years pointed to racial disparities in policing, particularly when it comes to the low-level offenses that are targeted by the so-called broken windows policing method preferred by Mayor de Blasio and his two most-recent predecessors, which focuses on low-level crime and disorder in the theory that it helps prevent more serious crime.

“In most of these categories, there should be no police involved,” said Bob Gangi, a veteran advocate who ran a longshot mayoral campaign in 2017 on a platform of police accountability and reform. His organization, the Police Reform Organizing Project (PROP), regularly releases court monitoring reports that show how New Yorkers of color are overwhelmingly caught up in the criminal justice system for offenses that white New Yorkers are rarely punished for.

“Someone carrying an open alcohol container, who is not drinking, who is not disruptive, who is not in any way causing a threat to public safety or public civility, that shouldn’t be a matter for the police,” Gangi said in a phone interview. “And it’s similar with virtually all the other offenses.”

The police’s involvement in enforcement of these acts, he said, “in effect begins the process of criminalizing people for what are essentially innocuous activities” and the numbers show a “stark racial bias” in that enforcement. He pointed to one major problem with the CJRA itself that leads to this imbalance: that officers continue to have discretion in choosing a civil fine over a criminal summons. “So we have not eliminated the fundamental problem, which is racist policing,” he said. “We've tweaked it, we've modified it to a certain extent, but we have not eliminated it.” 

There are other takeaways from the Office of Administrative Trials and Hearings report on the Criminal Justice Reform Act’s implementation. Nearly 20% of the total civil summonses were dismissed for being defective, which often means the ticket was improperly filled out by an officer, missing the date or time of the offense, for example. And a small percentage of people, just under 13%, opted to perform community service instead of paying a fine based on a civil summons.

Council Member Donovan Richards, chair of the Council’s public safety committee, called the latest data a “mixed bag” of results. “Certainly it shows that the department is continuing to recognize that incarceration is not the answer in all cases to reduce crime,” he said. “We still see crime rates going down at historic levels.”

He continued, “It shows the fact that there are those who will cry that when reforms take place, that the world is going to come to an end, but it's not, right?” As he alluded, when the CJRA was first introduced, it was met with opposition from the NYPD, and even Mayor Bill de Blasio, and it took months of cajoling and compromise to get them to agree to passable legislation. In part, then-Commissioner Bill Bratton insisted that the City Council leave the criminal penalties on the books, adding corresponding civil penalties as a preferred alternative, but not removing the possibility of arrest or criminal summons.

“In terms of correcting the [racial] disparities, there's a lot more work that needs to be done,” Richards added. “Certainly...this is a step in the right direction. But the only way to ensure we are building trust with communities and the police department is to ensure that we recognize that these disparities still exist.” Though he commended Police Commissioner James O’Neill for the department’s community outreach efforts, he called for more diversity within the department and its leadership.   

“This city still has a long way to go when it comes to addressing racial division,” he said. “The new Jim Crow is incarceration and I think it's incumbent upon the police commissioner and the mayor to really sit in a room and get serious about this stuff.”

***
by Samar Khurshid, senior reporter, Gotham Gazette
     

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NYPD Continues Move Away from Criminal Penalties for Low-Level Offenses, But Racial Disparities Remain Tue, 03 Sep 2019 04:00:00 +0000
Closing Rikers: We Must Do Better Than The Current Plan https://www.gothamgazette.com/130-opinion/8771-closing-rikers-we-must-do-better-than-the-current-plan https://www.gothamgazette.com/130-opinion/8771-closing-rikers-we-must-do-better-than-the-current-plan m bdb dcc joseph ponte

(photo: Michael Appleton/Mayoral Photography Office)


Not long ago, closing the Rikers Island jails was a radical idea. Today, however, less than four years after we launched the #CLOSErikers campaign, New Yorkers have reached political and popular consensus that closing the jail complex is morally imperative. Yet, they are increasingly opposed to Mayor Bill de Blasio’s visionless approach to executing this important mission. Today I write to join that opposition.

The purpose of the #CLOSErikers campaign was not only to shut down a horrific penal colony, but also to decarcerate New York City and spur investment in communities most harmed by mass incarceration. Our principal target was Bill de Blasio, who as mayor oversees the city jails and is empowered to close them.

From the beginning of 2016, we pursued the mayor across the city, in the streets, and at City Hall, in the press and through social media, at his fundraisers and even at his gym. Closing Rikers became a rallying cry for progressives, and then a mainstream political position.

In April 2017, Mayor de Blasio reluctantly announced that Rikers would close. We celebrated that moment as a major step forward, but not as a win, given the scant details in the mayor’s plan. Though I am no longer with the campaign, I have watched for the past two years to see if the mayor’s plan could be improved to match the values of today’s criminal justice reform movement. Despite fierce pushing by advocates, as of Tuesday's City Planning Commission vote, this administration does not have the right plan to close Rikers.

First, the mayor’s plan projects the need for too many jail beds.

The historic and comprehensive pretrial justice legislation that advocates got passed in Albany six months ago, and that takes effect in January, may halve the number of New Yorkers in jail.

Second, the mayor’s plan doesn’t significantly change the culture of Rikers -- retaining the use of solitary confinement, and not holding the Department of Correction accountable for continued violence at jails across the city.

Third, the mayor is simply not engaged. It’s easy to mock Mayor de Blasio for his lonely trips through Iowa and New Hampshire, but it has now been months since the mayor addressed criminal justice reform, and he has apparently neglected to even assign a deputy mayor to the mammoth project of closing Rikers.

There was a time when Mayor de Blasio’s borough-based plan, for all its flaws, seemed like the best and only chance at closing Rikers. But the politics of Rikers and the politics of New York have changed. Every known 2021 mayoral candidate is for closing the Rikers jails. With a stable Democratic State Senate, we can keep improving the broken laws that led to our current system. And across the city, voters are demanding reform from their district attorneys. As circumstances shift, our policy on what is best for New Yorkers must evolve. 

As a city, we can settle for Mayor de Blasio’s eight-year, $10 billion plan, or we can push him to generate a better plan that invests billions into helping communities directly, doesn’t have towering jails, and reforms the Department of Correction. It’s not too late, we still have a choice.

Here’s a different path forward, some of which can be demanded by the City Council through the land use review process (ULURP) that is only part-way through and now in the Council’s court:

First, dramatically reduce the number of projected jail beds, including exploring options that would require no new jails to be built and improve conditions at existing non-Rikers facilities.

Second, make a serious financial investment in community-based mental health centers where people can get treatment outside the jail setting, and allocate more funding to transitional housing. 

Third, divert people otherwise sentenced to misdemeanor jail terms to programs that can help them get their lives on track.

Fourth, properly implement bail, discovery, and speedy trial reform in 2020, which will dramatically lower the number of New Yorkers in our jails.

Fifth, pass parole reform next legislative session in Albany, which will dramatically reduce the number of New Yorkers in city jails for technical parole violations.

Sixth, work with community groups to expand restorative justice models that empower survivors and hold defendants accountable without using incarceration.

Seventh, demand that our elected district attorneys treat jail as a last resort.

These solutions will be better for our community and improve public safety in the long run, without building huge new jails.

Finally, I commend the Herculean work of advocates, directly impacted people, City Council members, and even certain de Blasio administration members for working to close Rikers, including those who have sought to improve the borough-based jails plan. We are in this together as a city.

We only get one chance to close the Rikers Island jails, and we can do better. Mayor de Blasio and the City Council should act boldly to reimagine criminal justice in New York City.

***
Janos Marton is campaign manager for the ACLU Smart Justice Campaign and a 2021 candidate for Manhattan District Attorney. He managed the #CLOSErikers campaign 2016-2017. On Twitter @janosmarton.

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

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Closing Rikers: We Must Do Better Than The Current Plan Tue, 03 Sep 2019 04:00:00 +0000
Depraved Indifference and Second Look Sentencing https://www.gothamgazette.com/130-opinion/8758-depraved-indifference-and-second-look-sentencing https://www.gothamgazette.com/130-opinion/8758-depraved-indifference-and-second-look-sentencing first lady chir2

(photo: Michael Appleton/Mayor's Office)


Valerie Gaiter died in Bedford Hills Correctional Facility last week. She had been in prison longer than any woman in New York State.  She had cancer. She was 61 and had served 40 years of a 50-years-to-life sentence for her conviction of the murder of two elderly people in Brooklyn in 1979. She was eligible to see the Parole Board in 2029 when she would have been 71.

Edgardo Gonzalez is in Fishkill Correctional Facility. He is 75. He has chronic liver failure, hepatitis, and other ailments. He has lost almost 40 pounds in the last four months. He has served 36 years of a 50-years-to-life sentence for his conviction of the murder of two people in a Brooklyn social club in 1983. He will be eligible to see the Parole Board in 2034 when he would be 90 years old.  

To be perfectly clear, Ms. Gaiter and Mr. Gonzalez were convicted of brutal crimes. Lives were taken. Families were devastated. The harm caused is incalculable. 

And yet, how much time must someone serve for a violent crime? This question must be confronted to redress the crisis of mass incarceration, since the vast majority of the 2.3 million people in United States jails and prisons were not convicted of so-called low-level, non-violent offenses. 

As long as people are defined as “violent criminals” it becomes easy to banish them forever and talk about the crisis of mass incarceration but do nothing to end it. Those serving life sentences are more than the crimes they committed. It is time to interrogate whether those who promoted get tough on crime policies continue to perpetrate their own violence by ensuring that older, reformed offenders die in prison.

Mr. Gonzalez has a stellar institutional record and extensive family support. He presents no threat to public safety. He’s received only one disciplinary ticket in 36 years and that was for having an untidy cell (a photograph of his mother taped to the wall). My students submitted a clemency application on his behalf two years ago but have yet to receive any response.  

I met with Mr. Gonzalez last week at the Regional Medical Unit at Fishkill prison. Not that long ago, he was a robust former boxer in excellent health. He once fought future Olympic gold medalist Howard Davis in Madison Square Garden. Pictures of that match showing a chiseled athlete in the prime of his career were part of his clemency application. Now his health is in rapid decline. He is confined to a wheelchair and struggles to breathe. His voice is barely a whisper.

Mr. Gonzalez asked what the law meant by “depraved indifference.” In 1983, he was inside a social club when a melee broke out. Mr. Gonzalez was shot through the stomach, but also shot and killed his assailant. For that, he was convicted of intentional murder. Another shot fired by Mr. Gonzalez killed a woman standing nearby. For that, he was convicted of what the law calls depraved indifference murder. 

As we discussed the law regarding depraved indifference murder, it was impossible not to think about how the state treated Valerie Gaiter, Edgardo Gonzalez, and the thousands of others serving death by incarceration sentences. 

The law says you are guilty of depraved indifference murder if you engage in conduct that creates a grave risk of death and are aware of and consciously disregard that risk. We know the grave risk, indeed the likelihood, of death in prison for people serving life sentences. According to a report by New York’s Department of Corrections, the average age of death for those who died in state prison of natural causes was 57. And yet, that risk is regularly disregarded as sentences like those imposed on Valerie Gaiter and Edgardo Gonzalez are often sought by prosecutors and imposed by judges.

The courts further define a depraved indifference state of mind as exhibiting an utter disregard for the value of human life; simply not caring whether grievous harm will result. Depraved indifference is said to reflect conduct that is wanton, deficient in a moral sense of concern, devoid of regard for the lives of others. 

It is wanton, morally deficient and utterly devoid of regard for the value of human life to preclude the potential for redemption; to ignore all those who have long since aged out of any threat of future crime, especially those who are living out their final days in prison medical units. 

We must take steps to ensure that the state no longer acts with depravity toward those in prison.  

Sentencing laws must be reformed to bring the United States in line with other industrialized nations where a 20-year maximum is the norm. Prosecutors and judges must stop the common practice of seeking and imposing maximum sentences on those who exercise their constitutional right to a trial.

But the most far-reaching fix is the one proposed by the American Law Institute’s revisions to the venerable Model Penal Code – second look sentencing. 

The Code urges state legislatures to enact a “second look” provision; to create a mechanism to reexamine a person’s sentence after 15 years no matter the crime of conviction or the original sentence. It is not a “get out of jail free” card. Release must be earned. It must be evident that the person is not a threat to public safety and there must be evidence of rehabilitation; proof that the person has changed, come to grips with, accepts and acknowledges their actions and the harm they caused. 

The Code recognizes that a sentence once imposed is not just, fair, and appropriate in perpetuity. Second-look mechanisms are meant to recognize the possibility of transformation and allow for mid-course correction if warranted by changed circumstances -- major changes in the offender, the crime victim, or the community. It is consistent with the growth of restorative justice that eschews punishment paradigm of the last several decades and is also a way to confront the systemic racism revealed in arrest and sentencing disparities.

Such a bill was introduced in the last New York legislative session regarding parole eligibility for people who are least 55-years-old and have served at least 15 years. There will be costs associated with establishing such second-look processes, but money will ultimately be saved as more people are sent home from prison. Most importantly, basic human decency should compel a different result for Valerie Gaiter and the many others facing the prospect of dying behind bars.  

In the meantime, we must use the limited procedures available to ensure a measure of dignity to those at risk of perishing in prison. New York does have a mechanism in place for compassionate release for those with terminal illness. However, according to a study by the Vera Institute of Justice, there were 476 requests for compassionate release from 2013-17, but only 72 people were ultimately released. On the other hand, 143 of those medical parole applicants died in custody, demonstrating why other, more comprehensive, solutions are necessary.

Edgardo Gonzalez was recently certified by corrections medical personnel as one of the few people eligible for medical parole. He had his medical parole interview before the Parole Board last week. To deny him parole would be the height of depraved indifference.

***
Steven Zeidman is a professor of law at CUNY School of Law and a former Public Defender. On Twitter @SteveZeidman.

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

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Depraved Indifference and Second Look Sentencing Mon, 26 Aug 2019 04:00:00 +0000
Max & Murphy Podcast: Reentry Programming, State Prison and Parole Policy https://www.gothamgazette.com/state/8725-max-murphy-podcast-state-prison-policy-parole-and-reentry-programming https://www.gothamgazette.com/state/8725-max-murphy-podcast-state-prison-policy-parole-and-reentry-programming gov cuomo tour wbai px

(photo: the governor's office)


August 7, 2019 - Max & Murphy Podcast: State Prison Policy, Parole and Reentry Programming

lizgaynes official wbaiLiz Gaynes of the Osborne Association joined the show to discuss state prison policy, including the controversial planned closing of a Manhattan facility, reentry programming, and parole laws.

Listen to the conversation and let us know what you think -- we're on Twitter @TweetBenMax and @JarrettMurphy. You can listen to the show through the embedded audio below or download the episode wherever you get your podcasts, under "Max & Murphy," and listen to Max & Murphy live on Wednesdays at 5 p.m. on WBAI radio, 99.5FM or wbai.org

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by Ben Max, Gotham Gazette
     

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Max & Murphy Podcast: Reentry Programming, State Prison and Parole Policy Wed, 07 Aug 2019 04:00:00 +0000
American Prosecutors Need Not Wait for Marijuana Legalization https://www.gothamgazette.com/130-opinion/8718-american-prosecutors-need-not-wait-for-marijuana-legalization https://www.gothamgazette.com/130-opinion/8718-american-prosecutors-need-not-wait-for-marijuana-legalization cc ps comm prelim budget

Four New York City District Attorneys (photo: John McCarten/City Council)


Last week, Governor Cuomo signed a bill effectively decriminalizing recreational use of marijuana. Once in effect at the end of August, New Yorkers charged with possession of less than two ounces of marijuana will face fines instead of criminal charges. Possession of over two ounces of marijuana maintains high fines and the possibility of jail time.

It is well known that throughout the United States communities of color have been disproportionately affected by marijuana arrests. In 2018, 89% of all New Yorkers arrested for marijuana possession were black or Hispanic; only 7% of people arrested for marijuana possession in New York were white.

The new law fails to address the disparate impact of the pernicious enforcement of marijuana use as grounds for parole and probation violations, but thankfully will allow people already convicted of low-level marijuana possession to have those charges expunged from their criminal records.

This law is an important legislative step towards addressing the over-policing and over-prosecution of our communities, and brings about a statewide change that has already been successfully piloted in parts of New York City thanks to local prosecutors’ sound use of their discretionary power.

In 2014, then-Brooklyn District Attorney Ken Thompson implemented a policy declining to prosecute possession of small amounts of marijuana. In 2018, Manhattan District Attorney Cyrus Vance declined to prosecute low-level marijuana possession in his jurisdiction and vacated 3,000 cases and bench warrants for possession and smoking of marijuana. In February 2019, Bronx District Attorney Darcel Clark declined to prosecute low-level marijuana possession.

These efforts have been mirrored in other states as well. Baltimore District Attorney Marilyn Mosby rightly announced in February that “prosecuting [marijuana] cases ha[s] no public safety value, disproportionately impacts communities of color and erodes public trust, and is a costly and counterproductive use of limited resources.”

Prosecutors across the country should follow the example of these district attorneys. Using their powers, prosecutors don’t need to wait for state or federal marijuana decriminalization or legalization to provide justice.

Prosecutors use their discretion every day to tailor their recommendations on cases; the decision to decline to prosecute certain crimes that do not affect public safety is one way prosecutors should use that discretion to reduce the negative impact of the criminal justice system on communities of color, build trust with the communities they serve, and reduce interactions with the criminal justice system that may cause harm despite benign intent on the part of the system.

Regardless of the outcome of any particular case, contact with the criminal justice system can affect an individual’s employment, interrupt child care, and make community members feel unsafe due to unnecessary system pressure. For prosecutors managing offices with heavy caseloads, the decision to decline to prosecute cases that do not increase public safety is also a strategic one. By lowering caseloads, prosecutors are able to reallocate resources to finding

innovative, evidence-based, restorative responses to serious crimes that cause true harm to our communities.

Local prosecutors across the country have the potential to impact countless people through the thoughtful use of their discretion in ways that reflect local values while prioritizing the safety of all. As New York has demonstrated, prosecutors need not wait on state or national legislative solutions to enact policies that will help enable communities to thrive.

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Lucy Lang is the Executive Director of the Institute for Innovation in Prosecution at John Jay College of Criminal Justice. On Twitter @LucyLangNYC.

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

Note: this column has been corrected to note that the Brooklyn DA office announced its policy in 2014 under then-DA Ken Thompson.

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American Prosecutors Need Not Wait for Marijuana Legalization Tue, 06 Aug 2019 04:00:00 +0000