Gotham Gazette

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Criminal Justice

In Case of Bank vs. Vet, Courts Rule for Service Member

Photo by Mark Chang
A former Air Force reservist charged that Wachovia, now part of Wells Fargo, violated federal law when it essentially cut his pay and demoted him after he returned from active duty.

When Michael Serricchio was called up for active duty by the United States Air Force Reserve soon after Sept. 11, 2001, he left his job as a financial advisor at a Stamford, Conn., office of Wachovia Securities, LLC. Upon returning from military service in 2003 he claimed his original job, but the employer offered him an inferior and lower-paying position. Serricchio sued Wachovia alleging violation of the federal Uniformed Services Employment and Reemployment Rights Act or USERRA.

Last week the Manhattan-based U.S. Court of Appeals for the 2d Circuit, which covers Connecticut as well as New York and Vermont, ruled that the law guaranteed Serricchio reinstatement to his prior employment position or its equivalent and that Wachovia violated the law and the veteran's rights. Three appellate judges agreed with the findings of a lower federal court jury and judge that defendant Wachovia had violated the USERRA by failing to promptly rehire the plaintiff and to place him in a position of "seniority, status and pay," similar to what he left. It took six months to rehire him instead of the mandated two weeks, and he was not returned to his prior job.

The appeals court therefore affirmed the lower court including an award of $389,453 in back pay and, because the defendants acted willfully, an equal amount in damages. Wachovia was also ordered to pay Serricchio $12,300 a month for three months, while he caught up and could begin generating commissions again. The goal was to provide compensation that would be the equivalent of what he could have expected to earn had his employment not been interrupted by his military service. That came to $6,500 per month or approximately $78,000 per year in commissions.

Civilian Life

The USERRA is one of a series of laws going back to World War II and amended during America's war in Vietnam. The purpose has been "to encourage military service by eliminating or minimizing the disadvantages to civilian careers; to minimize the disruption to the lives of service members and their employers by providing for the prompt reemployment of service members and to prohibit discrimination against service members."

Wachovia ignored that here, the courts determined. The bank had intentionally violated the federal law meant to protect men and women returning from the military service since he had been entitled to a prompt "opportunity to reenter the workforce with comparable earning potential and chance for advancement as his own book of business provided prior to his service, regardless of whether the same clients are in the substituted books." As described by U.S. District Court Judge Janet Arterton, the delayed "reinstatement offer [was one] that a reasonable person could regard as financially precarious and professionally degrading."

Prior to going on active duty, Serricchio was responsible for servicing as many as 200 accounts and for personally managing over $4 million dollars. But Wachovia argued it did not have to offer Serricchio the same commission opportunities he had before going on active duty and that USERRA provides only that an employee "who takes military leave will be returned to work at the same commission scale that he worked at prior to the leave, along with an initial monthly draw." In other words, the bank maintained it only had to provide Serricchio with the same commission structure but not with his prior book of business, upon the service member’s return from active duty.

A jury and judges disagreed. When Serricchio was honorably discharged in October 2003, Wachovia offered him something akin to an entry level position, the opportunity to make "cold calls" to rebuild his book of business, "a task," wrote the appellate court, "he had not been required to undertake since the early days in his career."

The Labor Department's View

The trial judge sought input from the federal government, seeking interpretations of the law. The Department of Labor submitted that in addition to returning him to his seniority and entitlement to any benefits and opportunities, "Wachovia should have determined what Serricchio's book of business would have been but for his military service by examining how Serricchio's financial analysis fared during his absence, and then offered Serricchio his original and/or comparable client accounts that corresponded to his 'escalator position' book of business. If that was not possible the labor department continued, "Wachovia should have taken steps to restore Serricchio to a position of like 'pay,' such as paying him an appropriate interim salary or offering him other opportunities for additional compensation while he built up his book of business to the requisite level."

The department stated that Wachovia violated USERRA when it required Serricchio to "cold call" to rebuild his client accounts. "This requirement diminished Serricchio’s level of responsibility, his position vis-a-vis other employees, and his opportunity for advancement," it said.

While the act does contain an exception "if the employer’s circumstances have so changed as to make such reemployment impossible or unreasonable," Wachovia did not raise that point in a timely fashion and therefore could not pursue it or seek a finding that it did or did not have merit.

(In the years since Wachovia, once the nation's fourth largest bank, teetered on the brink of failure until it was taken over by Wells Fargo.)

The three-judge appellate bench composed of judges Rosemary Pooler, Richard Wesley and John Koeltl, whose opinions are binding on federal courts within this circuit, concluded that the relevant statute entitles a returning service member to the "seniority and other rights and benefits determined by seniority that the person held on the date of the commencement of service in the uniformed services plus the additional seniority and rights and benefits that such person would have attained if the person had remained continuously employed."

Emily Jane Goodman is a New York State Supreme Court Justice

Constitution Lets Public Health Trump Religion, Judge Rules


All children entering school in New York state must be immunized from certain diseases.

According to the state's Public Health Law, "No principal, teacher, owner or person in charge of a school shall permit any child to be admitted to such school, or to attend such school, without evidence of the child’s immunization against" polio, mumps, measles, diphtheria, rubella (or German measles), varicella (commonly known as chicken pox), hepatitis B, pertussis or whooping cough, tetanus, and, where applicable, influenza and pneumonia."

But the law goes on to say that the requirement "shall not apply to children whose parent, parents or guardian hold genuine and sincere religious beliefs, which are contrary to practices herein required."

In the last decade, the number of parents who refuse to vaccinate their children or who delay their vaccinations has risen. An increasing number of parents who object to inoculating their children are relying on the religious exemption in refusing immunization. Claims of religious prohibitions on vaccinations must be reviewed on a case-by-case basis, at the school and Department of Education or school district level, but sometimes there are lawsuits.

Relying on God

In July, the Brooklyn-based U.S. District Court for the Eastern District of New York rejected the claims of a Long Island couple who, beginning in 2007, asserted a religious basis for their refusal to immunize their daughter who was then almost 4 and an applicant to pre-kindergarten. After the school principal denied their request for an exemption, the parents declined a meeting with the superintendent, and in Caviezel v Great Neck Public Schools sued their local school system in an effort to enroll their child, identified in court records only as "CC," without complying with the inoculation requirement. The parents, whose three older children had been inoculated, now claimed to have a religious objection to immunization, and argued that they were protected by New York's statute and both the state and the U.S. Constitution.

At a court hearing, the mother, Martina Caviezel, testified, "I don't believe that vaccinations are necessary. I just believe if you look at the human being, if you look at the universe, we're divine, we're just divine. It's just the design is perfect. There's no other way to say it. It's just perfect. I’m a hypnobirthing practitioner. ... If I were to explain my religion, I probably would say I'm a Pantheist. I see God in everything. I believe God's present." She testified that in her religion she practiced mostly breathing, "because in breathing, to be present, I can be present to the presence of God. You could call it breathing meditation, yes, but I also mean just stopping for a moment and taking a breath and starting to hear the birds, starting to see the flowers, starting to notice people around you."

She told the court that she was ordained as a priest two years earlier by the Sanctuary of the Beloved, which is a "church," in Buffalo. According to the group's website, its priests "are not required to 'give up' anything they believe in or to resign from any other organizations. They are simply given an 'energy boost' to enhance the work they are already doing. There is no doctrine they must follow." Caviezel described her training as a minister as one-day preparation for energetic ordination.

The court found it significant that Martina Caviezel testified that, as far as she knows, the Sanctuary of the Beloved does not take any position on the propriety of vaccination and never instructed her that she could not get her children vaccinated. The court's decision also cited Caviezel's general objection to vaccinations because of her concern about their safety and possible link to autism.

Caviezel's lawyer attempted to convince the judge that the mother had tattoos that are actually prayers, and that the family engaged in "religious rituals, prayer, meditation, tattooing, fasting and the other types of activities" that would be "considered an indicia of religion." The court ruled that the lawyer had improperly raised this argument and so did not consider it.

The Public Good

In recent years, immunization has been challenged and refused by parents and advocates who believe that vaccines cause autism, although they have not been able to establish that scientifically. Those opposed to allowing children to remain susceptible to diseases, argue that those who are not immunized either because they object, or perhaps come from other parts of the world where particular diseases are common and vaccinations are not, present a danger to others within their own families and to the public. The concept that prevails, known as "herd immunity" is that there is a tipping point within a community at which a certain percentage of individuals lacking inoculation against a particular disease threatens other members of that community, including, for example, pregnant women or inoculated individuals who may have had an immunity to the vaccine.

Last month Judge Arthur Spatt dismissed the claims of Martina Caviezel and Andreas Schenck Caviezel as not being "religious in nature." His decision went beyond that, however, to rule, that despite the religious exemption granted by New York's legislature, the state's immunization requirement does not violate the Constitution’s First Amendment. He specifically rejected the claim that it did. Spatt referred to the U.S. Supreme Court which has not directly addressed the inoculation issue, but has stated, “Generally the right of parents to raise their children in accord with their personalized and religious beliefs must to yield the health of children is at risk or when there is a recognized threat to public safety."

According to the Spatt decision and other federal cases, "It has been settled law for many years that claims of religious freedom must give way in the face of the compelling interest of society in fighting the spread of contagious diseases through mandatory inoculation programs."

Another local federal decision held, "Society's compelling interest in preventing disease must override any personal opposition to immunization that some persons may possess. Therefore, the statutory exception must be restricted to persons whose opposition to immunization stems from 'religious’ belief'; not views founded upon medical, personal, philosophical or even moral considerations."

Still, the language in the Spatt opinion is the strongest on this issue so far. Under the U.S. Constitution, it holds, there is no religious basis to refuse immunization of children.

Emily Jane Goodman is a New York State Supreme Court Justice

With Money Tight, Will State Finally Overhaul Its Public Defender System?

Photo by kbjesq

"Don't waste your tears on him," Darryl Johnson of Albany's Center for Law and Justice told the family of a high school student accused of burglary, referring to the court-appointed lawyer who was certain that jail time was the teenager's future.

New York State's indigent defense system has long been criticized for being poorly organized, underfunded and unable to give defendants proper representation. Advocates say the poor in New York state simply cannot receive a fair trial because the system designed to protect them is overburdened. In New York City hundreds of defendants can wait hours to see one of a few available public defenders -- only to get just a moment of their time. During their next court appearance they are likely to have another representative.

While recent efforts by the state legislature and Chief Judge Jonathan Lippman have lead to the first steps in reforming the system, a true overhaul in which the state would take over the reins and set standards now seems long off due to the state's fiscal trouble. In fact, even the small gains that have been made seem in jeopardy. Meanwhile the New York Civil Liberties Union has brought suit against the state in hopes that it can expedite justice for thousands of poor New Yorkers.

The Risk of Court-Appointed Counsel

The Albany family was desperate and indeed in tears; they had asked Johnson to come sit in on a meeting with the lawyer. Johnson's comment sparked the defender's ire.

"I don't know what they want from me!" the lawyer told Johnson. The court-appointed attorney told Johnson that the judge hearing the case was typically hard on burglary.

"He was frightened," said Johnson of the defender. But with Johnson's prodding and oversight the attorney pressed the judge to allow the youth to return to high school to earn his diploma, before serving any jail time. The judge agreed. Johnson wonders what would have happened if there had been no outside organization watching over the case.

Late last month, two middle-aged men sit in swivel chairs taking swigs of black-cherry store-brand soda out of medicine sized plastic cups. They laugh as they fish animal crackers out of a big plastic bag and recall their past experiences as defendants in New York state courts.

For Thurmon Brooks and James Holmes the public defender system has been both a blessing and a curse. Sometimes, they say, they have had knowledgeable lawyers who want to fight. Other times, they say, they didn't see their court appointed representatives for weeks, and then only to find out that the lawyer had cut a deal with the prosecution -- without ever consulting them.

"They come in and say, 'You gotta take this,' said Brooks. "They say you gotta take the cop-out and they don't give you any other option, and you ain't ever said you was guilty."

The pair describe the distrust defendants have of court-appointed council. "You don't see them for weeks, and then they either want you to plea or they are talking to the prosecution," says Holmes. “They don't take the time to know you, to ask whether you are guilty, where you are from. But they know the judge and the prosecutor."

Johnson, office operations coordinator for the Center for Law and Justice, leads the discussion. He, too, has spent time as a defendant and been represented by a public defender.

Johnson, a former resident of Harlem, recalls the days when he was a criminal defendant and was stuck "in a pen of 75 other guys waiting to get my chance to talk to one of the three public defenders."

Johnson was able to pay for his defense through some of the process, but eventually his cash ran out, forcing him to rely on a public defender. " I had to tell them how to defend me,” said Johnson.

In the years since, Johnson has become involved in helping others whose lives are tied up in the justice system. One of the major issues he confronts is the quality of representation for those who can't afford their own counsel.

Alice Green, who runs the justice center, was recently alerted to such a case. "A family wrote us a letter about their son, who has been in Albany County Jail for 14 weeks and has seen his lawyer only once. When he [the defender] saw him he told him he had a plea deal for him, but he didn't want to plead guilty,” explained Green. "We get a lot of complaints that their defenders have waived their right to an initial hearing before they even talk to them. These people are just being fed into the machine." Green said the current system leads poor minorities to not only be funneled into the system without legitimate trial but also breeds a strong distrust of the justice system throughout those communities.

Problems in the System

The New York Civil Liberties Unionhas filed suit against the state charging that the public defender system does not provide the constitutionally required quality representation for indigent defendants. The case is currently in discovery. Some advocates hope the case will eventually force the state to reform the system.

"This is a systemic deficiency we are talking about," said Corey Stoughton, lead counsel on the NYCLU case, "not simply one bad apple." Because funding for indigent defense in New York is left up to New York City and 57 upstate counties, each locality has a different structure for their system and provide various levels of financial support.

Some of the most important people in New York's justice system agree on the necessity of change. In fact, Chief Judge Lippman has made reforming the system one of his top priorities. Attorney General Eric Schneiderman was an outspoken proponent of reforming the system when he was a Democratic state senator and sponsored bills designed to do just that. And the New York Times has focused on defendants who received shoddy representation. But this year, with budget battles and the stuttering state and national economies at the forefront of most agendas, not much has been said about improving New York's indigent defense system.

Some steps have been taken. In 2009 the state established the Office of Indigent Legal Services to provide cash to counties to improve their defender systems. The state also created a nine-member Indigent Legal Services Board, which was asked to recommend ways counties could change the system to better represent defendants. Lippman is the board chair and the group is still working on its recommendations. Another bill capped the number of cases a public defender can take on in one year in just New York City.

Although every county in the state is responsible for providing funding for indigent defense, some counties can't afford to or simply choose to allocate less funding than others. While the U.S. Constitution requires defendants who can't afford their own representation to be assigned counsel, no state-wide standards govern what kind of defense is acceptable. "There are different levels of service in every county due to the varying fiscal health of each county," says Lippman.

In New York City, individual public defenders used to carry up to 700 cases per year. Seymour James, attorney-in-charge of the criminal practice of The Legal Aid Society and president-elect of the New York State Bar Association, said he has seen a drastic reduction since the cap went into effect. We were at 687 cases per year, and we expect it to be reduced to 565 by the end of September. Certainly our objective is to get it down further to 400, and 70 by 2014." However, James notes that there are ongoing studies to see whether even 70 may be too high for lawyers to carry out a proper defense.

Lippman declined to comment on the NYCLU case but said, "I think the policy side is where things are going to change. It is where we need to focus. Case caps may be part of it. I think the caps have made a tremendous difference, and I think the goal of 70 cases per lawyer by 2014 is a wonderful number. You would love to get it down to one case per year but it just isn’t possible."

As for the Office of Indigent Legal Services, it is still pulling itself together. "The creation of the office is an important first step, but it is not likely to change the experience of those that live the reality of the system," says Stoughton. "But it is a recognition that the state owns this. Change is coming but we have a long way to go."

Bill Leahy, a veteran public defender and the former head of Massachusetts Committee for Public Counsel Services, leads the office and is slowly using the agency's small, $1.5 million budget to hire staff. The agency was slated to receive $3 million in funding, but after Senate Republicans moved to eliminate the office entirely during this year's budget process its funding was reduced to $1.5 million.

"Bill Leahy is committed to these issues,” said Stoughton, "but after the legislature created the office they slashed the budget before we could even take a victory lap."

As head of the Massachusetts Committee for Public Counsel Services, Leahy had a $202 million annual budget, oversaw 265 state attorneys and got to oversee the state's entire public defender system. His current gig only allows him to work toward making recommendations to improve standards for the system and to hand out a grants set aside for counties that agree to improve their legal defense services.

"Right now we are adequately funded to get started," says Leahy. “We are just starting to staff up. We are a small agency, and we will be a small agency. I am very optimistic about where we are going but in these fiscal times we need continued fiscal and political support."

Lippman also is worried about how the state's finances may play into the effectiveness of the Office for Indigent Legal Services. "Of course I'm concerned about the fiscal climate and staffing, but now more than any other time -- during this time of fiscal crisis --we need to help people from falling off the cliff. We have to make sure everyone gets their day in court."

On Friday, Leahy was excited to report that he was sending out contracts to 11 counties to enable them to receive state cash to fund projects that would streamline their indigent defense programs. Chenango, Delaware, Franklin, Herkimer, Livingston, Schuyler, Steuben, Tioga, Washington, Wyoming and Yates were on the list, and Leahy said a steady flow of contracts to the rest of the state’s counties should begin in the next few weeks.

"The folks I've spoken to at the county level say this is the first time they have talked to anyone from the state about public defense and what they need to focus on," says Leahy. "If you're a cynic you can look at it as a small step, but we look at it as an important step forward.

Beyond the Patchwork

Leahy admits New York's approach is not ideal.

"The optimal arrangement would be to have a single state agency to oversee defense so there is equal representation that doesn’t depend on an individual counties' resources," he said.

James endorses that. "The problem," he said "is that we don’t have an enforceable guidelines or standards for proper representation. The bar has guidelines but they are not enforceable."

Jonathan Gradess, executive director of the New York State Defenders Association, said he thinks processes are in the works that could lead to a complete overhaul to the system. "I think people are giving them space to act. If there isn’t progress made, then I think there is a perfect storm that will either force the legislature to act or we will see the lawsuit force change. Both things are in equipoise."

And Gradess has another hope: He thinks Schneiderman, who reportedly has a copy of The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle Alexander on his desk, could very well effect reform of the system. "I expect the AG will make a difference if for no other reason than that change in the public defender system has come from attorneys general at both the national and state levels. We hoped the previous attorney general would make strides in this area but he didn’t. He is the governor now, so he has a good shot." Gradess said.

Schneiderman is in an awkward position, since the NYCLU is suing the state that he represents over the failure of a system that Schneiderman has also criticized. But his office issued this statement: "Attorney General Schneiderman has always been deeply committed to ensuring a strong statewide public defense system that effectively serves the people of New York. He looks forward to the implementation of the board's recommendations on improving the delivery of the state's indigent legal services, so that every New Yorker will have access to the meaningful assistance of counsel they deserve."

Lippman says he believes Schneiderman will be instrumental. "Its not a question of if," said Lippman, "We have talked many times about how we are going to work together. I know he cares about this in his soul. He has told me many times and he has been very involved in this area."

As the meeting in the Law and Justice Center winds down, both Brooks and Holmes want to make it clear that they have worked with good public defenders,whose names they share with other former inmates. Knowing who is a good defender is valuable information. "You just gotta know where to find 'em," jokes Holmes.

Judge Rejects 'Genius' Testimony

gay marriage

A self-described "genius" has failed to convince the judge hearing his divorce case that he alone, through his "unique personal traits," is responsible for accumulating a $450 million fortune in the world of finance.

Henry Silverman, 68, a private equity executive submitted affidavits from three psychologists in an effort to present expert trial testimony to support his theory of his success. His wife, though, filed a successful motion to preclude such evidence. At the end of a 30-year marriage, Nancy Silverman 66, urged the court to make a distribution of marital assets based on equitable principles that would recognize her contributions.

Dividing the Goods

Under New York State's law of equitable distribution, the division of a couple's assets does not depend on who possesses title to property and does not require that the parties make the same kind of contributions. In this instance, one spouse, the husband, worked outside the home, while the other, the wife, did not. Still, her entitlements would be based upon the totality of the circumstances, contributions and prevailing law.

In rejecting Mr. Silverman's approach, acting Supreme Court Justice Laura Drager wrote that the state's equitable distribution law evaluates "the marital economic partnership." While many statutory factors must be considered, Drager found that the husband's psychological assessment of his "personality and innate intellectual talents," did not constitute "evidence of his contribution to the accumulation of marital assets subject to equitable distribution." Therefore, the court will not consider expert evidence that the husband claimed would establish a "direct and statistically compelling relationship between personal attributes ... and the financial success he achieved."

Even though the husband claimed his argument was "scientifically based," the judge noted that it was unique and that neither side submitted any legal precedent for or against it. The judge then found that such testimony would not assist her in determining the parties' "relative contributions to the accumulation of wealth during the marriage."

A Case of Rough Justice?

Mr. Silverman argued that rejection of his psychological testimony would subject him to "rough justice." But what he called "rough justice" is exactly what courts are mandated to apply. That is, the judge would consider all the factors enumerated in the domestic relations law and apply them to the facts of the case, exercising her judgment and discretion. "The court," Drager wrote, "cannot relinquish that determination to an expert witness."

She rejected the defendant husband's reliance on what he termed, "personal capital" and its relationship to the wealth amassed. Her decision granted the plaintiff wife's motion to preclude the psychological testimony.

It is not in dispute, the judge said, "that the husband brought to his work innate abilities and acumen that helped cause the business to succeed." However, she continued, "In determining how to distribute the assets accumulated as a result of that partnership, the court must consider the contribution made by the husband based on his innate talents, business acumen, conduct and any other attribute or effort," as well as the contributions made by the wife that, she contended, involved "managing the couples' domestic and social life and raising their daughter, and the social introductions and other efforts she claims to have made that assisted the husband in business."

In her opinion, Drager wrote, "In purporting to prove that the success of the business could be attributed solely to the husband's innate genius, the expert opinion evidence offered by the husband offered no assistance" that would help the court equitably distribute the couple's estate "based on the contributions of each party to the marital partnership."

While the defendant's abilities clearly contributed to the success of his business, innate mental abilities or characteristics come into play when considering the contributions of the spouse without the business – the "non-titled partner" -- or in this case Mrs. Silverman, not her husband. Therefore it is Mrs. Silverman's contributions that are relevant for the analysis, not her husband's.

This telling language appears in a footnote, rather than in the body of the decision. Still, the judge wrote, the success of Mr. Silverman's business might well be attribute to "external forces," such as personal connections or luck," as well as an "innate genius."

Emily Jane Goodman is a New York State Supreme Court justice

As Cuomo's Prison Closings become Reality, Some Question the Specifics

For reader comments on whether to close Arthur Kill, go here.

Brooklyn house of detention
Gov, Andrew Cuomo has opted to close the Arthur Kill Correctional Facility on Staten Island while leaving many prisons in northern New York state open.

For reader comments on whether to close Arthur Kill, go here.

(To read about Mayor Michael Bloomberg's $621 million plan to build a new city jail and renovate two others, go here.)

By many counts, the New York state prison system has some 8,000 empty beds. On June 30, the Cuomo administration announced a move that would cut that number almost in half.

The plan would close seven prisons across the state -- doing away with 3,800 of those empty beds.

Strikingly, 50 percent of the beds being eliminated are in New York City, while the city houses only 25 percent of the state's prison population. In particular the plan would close the one medium security prison in the five boroughs -- Arthur Kill on Staten Island –- while leaving open similar facilities in rural upstate communities. More than 60 percent of the state's prisoners are from New York City.

Cuomo avoided shuttering the prisons with the most vacancies, many of which are women's prisons. One such facility, Albion Correctional has 66 percent of its beds empty. It will remain open.

This spring’s state budget deal gave Cuomo the power to shutter prisons of his choosing after consulting with legislators. Criminal justice advocates have been clamoring for Cuomo to downsize the prison system, which his father expanded, partly to save money.

Advocates also believed that shutting prisons in rural northern communities would result in fewer New York City residents being incarcerated far from their homes. Letting people serve closer to their homes would enable them to maintain contact with family members -- something advocates say reduces recidivism and bolsters reentry to civil society.

Cuomo tackled the issue head on in his state of the state address -- seemingly addressing legislators from northern New York who cling to the jobs prisons provide in to their communities. "An incarceration program is not an employment program," Cuomo said. "If people need jobs, let's get people jobs. Don't put other people in prison to give some people jobs. Don't put other people in juvenile justice facilities to give some people jobs. That's not what this state is all about. And that has to end this session."

Meanwhile, unions as well as communities across the state, particularly those in the economically hard-pressed upstate areas that rely on prisons for jobs, lobbied behind the scenes and protested loudly as the Cuomo administration mulled over which prisons would get the axe.

The closing plan announced at the end of June will probably save the state money. But it almost certainly will not end up with New York City residents serving sentences near their homes. In fact, it could have the opposite effect.

Padlocked Prisons

The Cuomo administration's list surprised many observers. Prisons in northern New York were thought to be some of the most vulnerable, but instead two facilities in the five boroughs, one near Buffalo, and four in mid to upstate were targeted for closing.

Scheduled for closure are Buffalo Work Release (Erie County), Camp Georgetown (Madison County), Summit Shock (Schoharie County) and Fulton Work Release (Bronx County); and three male medium security facilities: Arthur Kill (Richmond County), Mid-Orange (Orange County) and Oneida (Oneida County). Four of the prisons -- Buffalo Work Release, Camp Georgetown, Summit Shock and Fulton Work Release -- are minimum security facilities.

The administration has said inmates will be transferred to other facilities. Communities targeted for closings will have access to a $50 million fund and to tax credits. It is expected that the closings will save the state $72 million in 2011-12 and $112 million in 2012-13. Although a timetable for closing all the facilities is not clear Assemblywoman Annie Rabbit told constituents that the Mid-Orange facility will be closed on Dec. 1.

The list received mixed reactions. The response from unions was muted, perhaps because they were involved in negotiations about the closings.

The New York State Correctional Officers & Police Benevolent Association did not return calls for this article. However union president Donn Rowe issued a press release saying, "The closure of any prison in New York State represents a significant threat to the integrity and safety of the New York State prison system." It concluded, "We are obviously very disappointed by today’s action but first and foremost with any action must be to preserve the safety of the men and women who work in and protect these prisons. We will continue to work with the governor’s team and monitor the situation closely."

Soffiyah Elijah of the Correctional Association, which did major lobbying to eliminate the Rockefeller Drug Laws, praised Cuomo for acting on his promise to do away with empty prison beds but expressed concern about which prisons the governor chose to shut. In particular, she notes that the program will eliminate one third of the state's work release beds. According to Elijah, New York’s work release programs has already been cut by 25,000 slots since the late 1990s to only 1,900 in 2010.

"Work release helps people in prison gain critical employment skills to prepare them for a smooth transition back to their communities," said Elijah in a statement.

Staten Island Shutodwn

Even more troubling to Elijah is that 50 percent of the total beds targeted for elimination are in New York City. The 931-bed Arthur Kill Prison represents one of six state prisons in the five boroughs. It now houses 794 inmates.

Elijah says she has heard from a number of families who say the closing of Arthur Kill would keep them from visiting incarcerated relatives.

"People from Staten Island have a major concern. The closure will create quite a hardship for them. They can't make the long trip to visit inmates upstate because of physical or financial hardship." Elijah said. She added maintaining a connection with family is "one of the prime factors in reentry and avoiding recidivism."

Staten Island Sen. Diane Savino says she is mystified by the Cuomo administration's decision to close Arthur Kill because it flies in the face of one purported mission of prison downsizing -- keeping prisoners closer to their homes.

"One of the things that the governor wanted to accomplish with prison closures was addressing the issue that the majority of prisoners come from downstate; they're sent upstate, they're separated from their families and communities, which contributes to recidivism in many ways. From that perspective it really makes no sense," said Savino. "Here's a prison that's easy to get to, where children can maintain relationships with their fathers, men are able to maintain relationships with their communities. It doesn’t make any sense to send them far away."

Savino says she recently visited the prison, "to talk to staff there to get a handle on what will happen to not just the people who work there, who are almost entirely Staten Islanders, but also the inmates, and what we found was that on every level, fiscally and policy wise, the decision to close Arthur Kill is the wrong one," said Savino.

There are over 400 employees at Arthur Kill and at least 300 of them are from Staten Island.

Savino says the state spent nearly $40 million on upgrades to Arthur Kill for over a decade and that the process of upgrading the power plant and boilers is still underway. "So whatever money would be saved allegedly by the closure of the facility has already been lost in the investment," says Savino.

Not everyone on Staten Island, though, sees shuttering Arthur Kill as a bad thing. Two Republican state legislators see opportunity in its closing.

"There could be a silver lining for that part of my Assembly district," said Assemblymember Lou Tobacco told the Staten Island Advance in March when the closing was just rumored. He added that he doesn't hear people saying, "'Hey, I'm glad I have a prison in the neighborhood.'"

"It is 160 acres of choice Staten Island land," Sen. Andrew Lanza told the Staten Island Advance. "There are plenty of economic uses, retail development like a Wegmans, a corporate park. The (current) jobs could be replaced with 2,000 to 3,000 jobs."

City Councilmember Vincent Ignizio agrees. He said there has long been resistance to having the prison in the area. "Outside of the people who work in the prison, there is not a huge feeling of loss amongst the community but more of a concern for what will come in its place," Ignizio said.

In fact Ignizio sees the closing as an opportunity for economic development for an "underdeveloped part of my district." He thinks the property could be snatched up quickly for development -- specifically by Wal-Mart.

"There are major retailers who have interest in coming to the south shore of Staten Island. We know that Wal-Mart has been looking around in the community of the south shore of Staten Island as a potential site, so there is a host of retail opportunities now and additional land that wasn’t on the market a couple of months ago."

Savino scoffs at the idea. "Whatever happens with the prison, it will years before anything else is on that property." She says it could take more than half a year to close the facility and transfer inmates.

Savino estimates it could take two to five years before something could replace it. "So what happens to all of the businesses in that community that rely on the prison for its business? What do they do, wait patiently for something to happen?"

North Country Jobs

In announcing the plan Cuomo said it was "the result of very careful and detailed analysis and deliberation" and targeted facilities that could be closed "without compromising public safety "

Some legislators see a clear reasoning behind the closures.

"It's very good news for the North Country. The governor understands that we need more private sector development before we can stop relying on government jobs." Republican Sen. Betty Little of Queensbury told the Post Star. The article noted that Little said prisons "like Arthur Kill in Staten Island, will be a much easier sell in the private sector than those in rural communities and their closure will have a smaller effect on local unemployment lines."

Advocates say that Cuomo's closures will do nothing to change the fact that prisoners from the five boroughs drive the economy of much of northern New York.

"We've encouraged the governor to put money into reentry programs and to focus on closing maximum security facilities upstate," said Elijah.

She says that many prisoners are mistakenly classified as maximum security risks. Data provided by the Department of Corrections shows a 22 percent overall decline in prisoner population since 1999 –- to around 56,000 today. The number of minimum and medium security prisoners has declined even more sharply -– a 19.5 percent drop in inmates at medium security prisons between 2001 and 2010 and a 57.2 percent decline in those at minimum security facilities. But the decline in maximum security prisoners was only 2 percent. From 2001 to 2010, the number of inmates housed at maximum security prisons declined from 25,331 to 24,822.

Elijah says that decline should be much steeper, as prisoners who do not pose much risk are now lumped into maximum security status. Elijah would like to see prisoners released earlier after participating in rehabilitation programs. She also advocates the use of more alternative sentencing to further reduce the prison population, paving the way perhaps for more prisons to be shut.

That could be risky she admits. "It’s clear that any elected official is courageous in proposing prison closures. It has a dangerous effect; there is so much push back," Elijah said.

Will there be more closings? "Only Gov. Cuomo knows that. We hope there will be more. There were reportedly 8,000 unused beds, and he has closed about half of them," said Elijah.

However, experts say that the remaining beds are not quite empty; the Department of Corrections says about 2,500 of them must be kept open to move prisoners who may be sick or become security risks. Nearly another 2,000 are supposed to be kept open in case there is an influx of prisoners, much as there was in the days when Gov. Mario Cuomo built so much of today’s prison system.

Zach Bergson contributed reporting on this story.

City Plans to Build, Renovate Jails

Brooklyn house of detention
Photo by Videot
The city is renovating the Brooklyn House of Detention on Atlantic Avenue near Brooklyn Heights but has abandoned plans to expand the facility.

(To read about Gov. Cuomo's prison plan, go here.)

While Gov. Andrew Cuomo begins an historic effort to shut prisons all over New York state, Mayor Michael Bloomberg is building, reopening and renovating jails throughout the city.

The administration's prison plan, which was originally priced at $735 million but scaled back to $620 million, will include a brand new 1,500 bed jail on Rikers Island and the reopening of the Brooklyn and Queens Houses of Detention. Although the mayor's plan reopens and builds new jails in the city, jail capacity will decrease from 19,400 beds to about 16,550. The Department of Correction cited dilapidated facilities and a drop in the crime rate as the motive behind this proposal to "right-size" the jail system.

The construction of the new Rikers Island facility is by far the most expensive portion of the plan, with a price tag of about $563 million. The department says the new building will replace deteriorated temporary housing units.

"We anticipate that the new 1,500 bed jail will be a modern facility incorporating correctional best practices, including staff efficiencies. It should save the city money in the long run," Department of Corrections spokesperson Sharman Stein said.

The city also will reopen and renovate jails in Brooklyn and Queens that have been shuttered since 2002 and 2003 respectively. According to Stein, the Brooklyn House of Detention will open its doors this fall and its Queens counterpart in the summer of 2012.

The plan to reopen the Brooklyn House of Detention was initially met with opposition from the local community because it included a proposal to increase the size of the prison. According to the Community Board manager Steven Levine, when this particular proposal was struck down, most of the opposition to the jail reopening went with it.

"The majority of the board members are comfortable with the facility as currently scaled remaining where it is," he said.

Levine said people living in close proximity to the jail have expressed concern, however. "There are people who live in the condominium across State Street who have told me that when they were looking at those units their broker told them the jail was closed forever and would not reopen. They weren’t happy to learn otherwise," he said.

City Councilwoman Letitia James, who represents the district where the house of detention is located, said she does not oppose the reopening of the jail now that the expansion plan has been abandoned. However, she raised concerns about the mayor's jail spending plan as a whole.

"My concern is the social network of the city of New York and not trying to build more jails, particularly at a time where the mayor is alleging crime is down," she said. "A significant number of my schools are old and they're not being rebuilt."

'Who's Your Daddy' and the Laws of Marriage


new york city budget
Photo by Joao Saidler

Like marriage itself, the laws of marriage are in constant flux. But one thing that has not changed is that a child born to a married woman is presumed to be the child of her husband. And it is his name that appears on the birth certificate as the father. Paternity tests and now DNA can rebut and prove that another man is actually the biological father but .without proof to the contrary, there is a presumption of "legitimacy," which has been described as "one of the strongest and persuasive known to the law."

The law was reaffirmed earlier this month in a new and tantalizing scenario by New York State Supreme Court Appellate Division in Manhattan. Nina (formerly Sebastiana) Viola Montepagani, a resident of Albany, commenced a lawsuit against the New York City Department of Health, Office of Vital Records seeking to change her birth certificate. Her goal was "to correct the record," by removing the name of Joseph (Giuseppe) Viola from the document. Viola, who was 60 when Montepagani was born, raised her and was indeed married to her mother, Anna Aliano Viola, but, Montepagani maintained, he was not her biological father. Rather, she claimed that her father was Dr. Sebastiano Raeli, an Italian citizen with whom her mother had had a sexual relationship in Italy, while her new husband was in America awaiting his wife's arrival. The affair took place around the time of the plaintiff's conception, when Anna Aliano Viola was in her late 20s.

A Claim of Illegitimacy

The petitioner. Montepagani, wanted the City of New York to remove from her birth certificate the name Viola that had been there since Nina (then Sebastiana) was born on June 24, 1952 in Williamsburg, Brooklyn and leave the line for father blank. In essence, Justice Michael Stallman said, the petitioner was challenging her own legitimacy by asserting that she is the child of a man other than the one her mother was married to at the time of her birth. She would be a child born out of "wedlock," still an unfavored state in the law, even though about 40 percent of babies born today do not have married parents.

Both Stallman of the state Supreme Court and judges on the appellate bench agreed that the petitioner would have to offer "clear and convincing evidence in order to have her ostensible father's name removed from her birth certificate" and to rebut the presumption of legitimacy.

Montepagani relied on things she said her mother told her and letters her mother wrote to Raeli and his attendance at the baby's baptism at St. Nicholas Church in Brooklyn, as well as photos and inscriptions from him to Nina, referring to her as his daughter, to himself as "daddy" (as translated from Italian) and then, with respect to Nina's children, as grandfather. She also claimed that Raeli had told her that she would inherit his fortune.

Another intriguing detail is that Montepagani's parents named her Sebastiana, the female version of Raeli's first name. Ironically, Montepagani changed this to Nina.

Lack of Evidence

None of this was admissible evidence as it could not be authenticated. The Violas were both dead and could offer no evidence by the time Montepagani began her legal action. Raeli was not a party to the lawsuit.

The petitioner also argued that the dates the Violas were apart at the end of 1941 would have made it impossible for them to have conceived Montepagani because she was born full term, which would have placed her conception at a time her mother remained in Italy. Still the court found that there was no evidence that her birth was full term.

Raeli was over 90 at the time the lawsuit was commenced and had no children -- except, perhaps Nina. But she would have no claim to his great fortune unless she could present to the Italian government a birth certificate with the line for the name of the father left blank. With that she could begin the process of proving her claim in Italy.

Montepagani did not use DNA testing to prove that the already-deceased Viola was not her father. If such testing had excluded a genetic connection, Viola's name could have been removed from the birth certificate. While that would not have proved that Raeli was the father, it would have been enough to at least make her claim in Italy.

Montepagani, though, did not offer or request any DNA evidence. There were no DNA samples sought from Raeli either, and New York courts would not have had jurisdiction to compel his cooperation. In the meantime, Raeli has died, and so has the lawsuit.

Stallman dismissed the Montepagani petition in two decisions, which have now been affirmed on appeal. It is unlikely that any other New York or Italian court will hear the case or upset the presumption of married parenthood.

Bloomberg Pushes For Control Of Juvenile Justice System

Photo provided by New York Public Library
New York State reformatory, plumbing shop, circa 1921.

Every year New York City sends of its most troubled teens hundreds of miles away, Far from family, they are confined in institutions that by many accounts are brutal, ineffective -- and expensive. These institutions have been deemed so brutal and ineffective by the federal government that the Department of Justice threatened to take over the system if the state did not make drastic improvements to the quality of care.

Today, Assemblymember Karim Camara is expected to introduce a bill that would remove New York City kids from that system and give the city control over where it sends its juvenile offenders. The legislation, which was drafted in close concert with the office of Mayor Michael Bloomberg, would keep juvenile offenders from being sent to the upstate juvenile detention centers that have been the center of immense scrutiny because of their culture of violence and lack of proper mental health care.

The city's legislation has been hailed by advocates who work with juvenile offenders. They say the bill will keep offenders closer to home and would provide the young people with the specific type of treatment they need rather than using the state's "one type of detention fits all" system.

The bill also leaves questions -- does the city have enough service providers and alternative programs to take care of all its youthful offenders, and what will happen to the state's system if New York City is no longer part of it? The bill will face almost certain opposition from unions that represent staff at the upstate juvenile facilities who see their jobs as under siege.

Bringing It Home

As of January of this year the state's juvenile detention faculties held around 600 youthful offenders, 400 of them hailing from the five boroughs. Offenders aged 7 to 15 are housed in these detention centers -- 60 percent of them having committed minor offenses such as truancy or graffiti.

Reports have documented nightmarish scenarios within the detention centers where they are held -- cases of physical, mental and sexual abuse by staff. The prevalence of such abuse prompted the Justice Department's threat to take over the system.

Furthermore the facilities are hundreds of miles north of their homes in the city -- leaving the offenders far from the support of their families. And once released detainees seem ill prepared to reenter society.

In his state of the city speech in January, Bloomberg proposed allowing localities control over their youthful offenders and asked Gov. Andrew Cuomo to issue an executive order to make it so.

"The current system is not helping kids, it isn't helping taxpayers and is isn't helping public safety," Bloomberg said at the time. "The bottom line is, I think we all agree we need to stop sending kids miles away from their families and communities. And, instead, authorize the city to fully operate its own juvenile system here in the five boroughs."

Cuomo had other ideas. The governor and Gladys Carrion, commissioner of the Office of Children and Family Services", were already at work to reduce the size of the juvenile justice system around the state -- closing underutilized facilities, recommending that judges sentence low-risk offenders to alternative treatment and working to retrain staff to better care for offenders. The budget process, incorporating many of these changes had already begun.

In other words, Bloomberg's plan came at the wrong time. "I think people were already focused on the budget when this was introduced," said Marsha Weissman executive director of the Center for Community Alternatives who was also a member of Gov. David Paterson's Task Force on Transforming Juvenile Justice. "The work Gov. Cuomo and Commissioner Carrion are doing was good, and I think people thought, 'We've made so much positive progress,' that it was hard to deal with the next step."

Despite the early setback, Bloomberg's office continued working with legislators on the issue. "I don't think the governor has rejected the idea," said one Bloomberg administration figure early last week, "I just think he is busy." The administration remained "optimistic."

Then according to Camara the Bloomberg administration took note of an op-ed he penned for the May 3 edition of the Amsterdam News titled Juvenile Justice Needs Reform. In the article Camara detailed what he sees as the injustices of the state system and how he thought it should be reformed. The Bloomberg administration contacted him, and they began work on a bill.

Camara's bill which is officially a "New York City Program Bill" will introduce Bloomberg's concept to the legislature.

The measure, titled the Juvenile Justice Realignment Act, would allow a placement agency"designated by the mayor of the city of New York to oversee the care, maintenance and supervision of adjudicated juvenile delinquents or juvenile offenders." It would operate and transfer youth to secure, medium security and non-secure facilities in the city. The agency would, "establish, operate and maintain treatment programs and other services for youth placed with or committed to the placement agency and programs for the care of conditionally released youth.”

In the Legislature

The debate over the bill will start in the Democrat controlled Assembly. Calls to Assembly Speaker Sheldon Silver's office for comment were not returned.

Amy Paulin from Westchester, head of the Assembly committee on children and family, said she basically supports the legislation.

"If kids in trouble need treatment we should keep them home and near their family. We want to do this. The system is shrinking and it will continue to shrink but we need to make sure we have the right services in place," she said.

Paulin, however, is concerned that the city may not have enough services for all of its juvenile offenders. "There aren’t enough services in New York City right now," she said. "They use Westchester services because they are close, but there are a lot of things that need to be put in place before we pull the plug."

Camara said he is confident the city will be able to care for its population of troubled youth. "I believe we have enough existing services in New York City. We have some great nonprofits and alternative sentencing programs," he said.

Advocates say that the city already has a record of nurturing nationally recognized alternative-sentencing programs. These, they say, cost far less than paying for a youth to stay in a state run facility. According to Weissman, detaining a child in the state system costs over $200,000 a year while alternative programs cost $10,000 to $20,000 a year.

Alternative sentencing programs also boast of dramatically lower recidivism rates. Some 80 to 90 percent of young people held in state programs commit further offenses compared to a little over 20 percent in alternative programs.

Weissman is perhaps most enthusiastic about how local control could aid in overseeing the quality of the programs. While the current situation places kids from the city hundreds of miles away from the community and people that care about their progress, the new system would keep kids near their families, under the watchful eye of local government. Weissman thinks this would make it much easier for parents to keep track of their children and hold local officials accountable.

Weissman sees a place for the state to monitor the quality of the city’s programs. Camara’s bill does not specifically call for that, but he said things could change as the legislation gains sponsors and makes its way through committees."I am open to it," said Camara. "We will be having lots of discussions about the bill going forward. I could see the state having a role overseeing the city system just as the federal government oversees the state's."

Fewer Jobs, Distant Jobs

The Civil Service Employees Association"is already irate about the loss of jobs in upstate communities due to the shrinking of the juvenile justice system and planned prison closures. This Bloomberg administration's move will likely draw more outcry. Union heads have argued that communities could be put in danger by "non-secure" facilities in their neighborhoods. They say employees in the state facilities do dangerous work that keeps the state free from dangerous young offenders.

"Renee Greco was murdered by clients, and these are the people they want to move into the communities," Steve Madarasz, spokesman for the association told the Gazette last year, referring to a woman who was killed by escaped juvenile offenders. "We believe the public shouldn't be put at risk, the staff shouldn't be put at risk and even the clients shouldn't be put at risk."

Whatever the merits of the union's arguments, the tide seems be turning aganst its members.

Cuomo made it clear in his budget speech earlier this year that he is concerned about the upstate economy but he will not keep people employed to watch empty prisons and detention centers. "If people need jobs, let’s get people jobs," he said. "Don’t put other people in prison to give some people jobs. Don’t put other people in juvenile justice facilities to give some people jobs. That’s not what this state is all about, and that has to end this session."

It is too early to judge what kind of support Camara's bill will receive. The office of Assembly Speaker Sheldon Silver, the office of Senate Majority Leader Dean Skelos and the governor's office did not respond to requests for comment. A spokesperson for the Office Of Child and Family Services said they would not comment until the bill has been introduced and they have had time to review it.

The fact that the bill only deals with New York City may drive off support from legislators who hail from outside the five boroughs.

Sen. Neil Breslin, who represents Albany, said that he supports the idea. "I would defer to the people from New York City," said Breslin. I think people from the city should be closer to their families." He added, "I don't think there will be a great outcry against it."

Weissman said she hopes there will be progress made this year. "I think the issue is still on the table for this year and if it doesn’t get passed this year I think we’ve done a good job laying the groundwork for future discussion."

Camara said that one thing is clear to him, "Regardless of the outcome of this bill we have to do something about those facilities. We have to change the juvenile justice system."

Concerns Raised over City Role in Deporting Immigrants

Karen Barrueto created this artwork after visiting someone in a federal detention center for immigrants in south Texas.

Growing up in Mexico City, Ricardo Muniz dreamed about being able to just be himself someday. He always knew he was gay and was constantly subject to anti-gay slurs or even death threats.

"It's difficult to come out in Mexico," said Muniz. "I don't remember a happy childhood."

At 15, shortly after he came out, his mother was so concerned about his well being that she sent him to New York to live with his aunt. "I heard there is justice and people can be who they are regardless of their sexual orientation," said Muniz, now 25. "I wanted to start a new life in America, to be free."

But he didn't realize that the real America differed from the one he imagined. After spending 20 months in detention, Muniz now faces deportation back to Mexico -- even though he has not been convicted of any crime.

Muniz is one of many immigrants who face deportation after being caught up in the criminal justice system -- regardless of the charges against them and regardless of whether they are guilty. Under a federal program called the Criminal Alien Program, New York City law enforcement officials give the names of all people arrested to U.S. Immigration and Customs Enforcement, known as ICE. If ICE identifies someone as an immigrant, then the agency asks to transfer the person to federal facilities where the immigrant remains pending deportation hearings.

The city Department of Correction has given names to the federal government and allowed for the transfer of immigrants -- despite Mayor Michael Bloomberg's outspoken support for immigration and his issuance of Executive Order 41, which prohibits city workers from inquiring about immigration status when the people seek services from a city agency or witnesses a crime.

A Fight's Consequences

The trouble for Muniz began in July 2009 when he and his friends were attacked with bats and belts after a quarrel with a patron at a bar in Brooklyn, according to the report Muniz filed with the police. He suffered serious injury in his face and body.

"Ricardo was a victim of a hate crime," said Karina Claudio-Betancourt, a coordinator and interpreter at Make the Road New York, an advocacy group serving low-income people.

During the fight, the patron, a 65-year-old man, fell and injured his head, resulting in a lengthy hospital stay. A few weeks later, the police arrested Muniz and his friends, charging them with assault.

That began a nightmare that still haunts Muniz. He was held at Rikers Island pending trial because the U.S. Immigration and Customs Enforcement placed a detainer on him. A detainer is the document the federal government issues to a local jail or correctional facility when ICE wants custody of an immigrant, legal or illegal, in that facility for purposes of instituting removal proceedings.

"I had double difficulties because I am gay and Latino," said Muniz of his time in jail. "I was attacked numerous times and verbally abused. People stole my food and hit me because of my sexual orientation."

"It scarred me psychologically," added Muniz, who broke down several times during the interview. "This is the experience I would not wish on anyone."

In late March, he was exonerated and released, ending 20 months in jail for a crime that he never committed. But Muniz now faces deportation because he is undocumented.

How It Works

Generally, when a deportable immigrant is released from jail because he or she finished his sentenced or was found innocent, the jail receives a request from ICE to detain the person for 48 hours. This gives ICE enough time to transfer this person to a federal facilities, many far from New York City. Once the arrestees are transferred to remote facilities, the chances of getting legal help become slim. Although the Criminal Alien Program may focus on undocumented immigrants, a report by the Immigration Policy Council found, it "identifies legal immigrants as well as unauthorized immigrants who are deportable based on the current crime or a prior crime."

Many of the detention facilities are in poor conditions and provide inadequate access to medical care or communications. According to the ICE's own figures, 120 immigrants died in detention between 2003 and March 2011.

The city does not have to comply with the federal government's request to hold the immigrant, said Bridget Kessler, a clinical teaching fellow for the Cardozo Law School Immigration Justice Clinic. She said a detainer from ICE is non-binding. In fact, many cities around the country have chosen not to participate in ICE's efforts, such as Berkeley, San Francisco, and Chicago.

Calls for Change

In an op-ed column in the New York Times by Manhattan Borough President Scott Stringer and Andrew Friedman, a co-executive director of Make the Road New York, called on Bloomberg to follow these cities and change New York's policy.

Most of the immigrants transferred to federal custody and then deported "have their due process rights violated," they wrote. "The process is too rushed to ensure proper identification of status and identity, let alone confirmation of criminal background."

Stringer and Freidman charge that New York's involvement in the policy costs the city millions of dollars and deters immigrants from reporting crimes. But they say, "Perhaps what is most disturbing is that sometimes legal immigrants who have been convicted of no crime are caught up in this system."

The column also mentions the pressure on local governments to adopt Secure Communities, a program designed to identify immigrants in U.S. jails who are deportable under immigration law. Under Secure Communities, participating jails submit fingerprints of those arrested not only to criminal databases, but to immigration databases as well. The program is scheduled to be in every jail in the country by 2013.

Meanwhile, to counter the growing trend of adopting programs like Criminal Alien Program and Secure Communities, the Association for the Bar of the City of New York in February submitted a proposal to limit the collaboration between the city Department of Correction and ICE. The association instead calls for the city to allow immigrant New Yorkers to face deportation charges here, rather than in remote places far away from supportive family members and available pro bono or otherwise affordable legal counsel.

The mayor’s office, though, has defended its decision to cooperate with ICE, saying it is a public safety issue.

"The mayor’s Executive Order 41 allows immigrants to gain access to city services and report crimes with no fear of being questioned about immigration status,” John Feinblatt the mayor’s chief policy advisor and criminal justice coordinator wrote in a letter to the Times. "But when it comes to immigrants arrested for criminal activities, the executive order ensures cooperation with federal authorities."

Raising the specter of terrorism, Feinblatt continued, " As our country has learned tragically, when government agencies fail to cooperate and share information, not only is public safety compromised, so is national security."

To Muniz, such statements are ironic.

"I am a hard worker. People like me should be protected," he said. "In this country, you are supposed to be innocent before proven guilty. But it is the other way around."

Despite his misfortune, he has been luckier than most detainees. One of his friends also involved in the fight was deported before any trial. According to a report titled Jailed Without Justice released by Amnesty USA, more than 80 percent of immigrant detainees do not have legal representation.

"There are many people out there who cannot speak out," said Muniz. "Many of them are innocent. They are hardworking people just like everybody else."

Muniz thanked his mother for seeking help from non-profit organizations when his was in jail. The Cardozo Law School Immigration Justice Clinic has submitted a request asking ICE to release him because of the harsh circumstanced that he has been subject to and to stop the deportation proceeding. ICE granted the first request but denied the second.

Muniz is due back in court for his status hearing soon. Currently he is in a program called Alternative to Detention and is required to report to ICE on a regular basis.

Larry Tung is a Brooklyn-based journalist and media artist.

Court Allows Man Who Falsely Confessed to Murder to Seek Money from the State

douglas warney
Photo New York State courts
Overturning lower courts, the state's highest bench issued a ruling that will allow Douglas Warney, who was convicted on the basis of what could have been a coerced confession, to seek financial compensation from the state.

Recently Gotham Gazette reported on the confession of Douglas Warney, who was convicted for a 1996 murder in Rochester but was later exonerated when DNA determined he was actually innocent.

Nevertheless, two New York courts found that he should not receive a state settlement compensating him for his wrongful conviction and the subsequent nine years he spent in prison. The court said his false confession constituted misconduct and so barred him from receiving compensation.

In late March, though, the state's highest court ruled in Warney's favor, reversing the lower courts' dismissal of his claim.

Warney's lawsuit seeking compensation had been brought in the Court of Claims, which hears cases against the state. In its ruling, the court is to rely on the Court of Claims Act and the Unjust Conviction and Imprisonment Act, which requires that a claimant seeking compensation had been convicted of a crime, sentenced to imprisonment and served at least part of the sentence. In addition, in order to receive a settlement, the claimant must have been pardoned on the ground of innocence or had a conviction that was reversed, vacated or dismissed.

The Court of Claims, however, rejected Warney's suit because language in the statute bars compensation for wrongful convictions that were caused by the defendant's own "misconduct." In other words, although DNA unequivocally proved that Warney is innocent, the confession he gave the police, which was used to convict him, constituted "misconduct" in the view of the Court of Claims judge, Renee Forgensi Minarik.

Allegations of Misconduct

The specific issue confronting the Court of Appeals was whether Minarik had improperly dismissed Warney's case without allowing the litigation to proceed further. The judge had decided that Warney's papers at the earliest stage of litigation should disclose in detail how his confession came about. The Court of Appeals opinion written by Judge Carmen Ciparick/a> agreed with Warney's counsel, Peter Neufeld, that Warney did not have to submit his evidentiary proof that early in the litigation proceedings.

Judge Robert Smith, who appeared particularly concerned when the case was argued in Albany, had posed many questions to the state's attorney, Alison Nathan, who is expected to become a federal judge. Smith asked how Warney could have confessed to specific facts of the crime that he couldn't have known both because of his limited mental abilities and because there is no question that he is innocent. Smith questioned whether the police interrogators gave Warney information, known only to them and the real perpetrator, that Warney then parroted back when asked about the murder.

At oral arguments and in his concurring opinion, Smith referred to the meaning of "coerced confession" and defined it as the sort of "calculated manipulation that appears present here." In general, though, Smith concurred with the majority opinion, which relied largely on procedural technicalities surrounding the dismissal. It did not give Warney's lawyers an opportunity to prove that it was not his acts that constituted misconduct. Smith feared that would lead to more general arguments against dismissal.

Criminal Knowledge

Warney, who had a history of making false police reports, has claimed that he had been denied access to a lawyer after police detained him for questioning in the murder. Warney eventually admitted to the murder in an unusually detailed confession -- one containing details that only the true perpetrator and the police could have known. But after he was convicted and sentenced to 25 years to life, Warney, who was then represented by the Innocence Project, claimed innocence. It was nine years later that DNA testing excluded him as a match. His conviction was reversed based on newly discovered evidence.

In ruling on Warney's request for compensation, lower courts said Warney had not offered convincing evidence that the police must have fed him detail of the crime. Ciparick's opinion reversed the lower courts , which had said that Warney would have had to present convincing evidence in the initial litigation on a possible settlement that the police fed him the details.

The appeals court determined that Warney did not have to prove his case in the lower courts but simply provide enough evidence to keep the case in court for trial. In other words, the Court of Appeals found it was premature for the Court of Claims judge to decide that she was not convinced by the facts Warney presented.

In his submission to the Court of Claims, Warney maintained that his conviction "was the direct result of the intentional and malicious actions of members of the [police] who fabricated and coerced a false confession from ... a man whom they knew had a history of serious mental health problems."

Referring in his opinion to some of the details in the confession, Smith asks, as the prosecutor had asked the trial jury, how a man whose innocence has been established could have known some of these facts he presented during police questioning.

"It is hard," Smith writes, "to imagine an answer other than that he learned them from the police. ... The police took advantage of Warney's mental frailties to manipulate him into giving a confession that contained seemingly powerful evidence corroborating its truthfulness -- when, in fact, the police knew, the corroboration was worthless. ... This sort of police conduct, if proved at trial would be sufficient to show that Warney 'did not by has own conduct cause or bring about his conviction.'''

Answering a question asked at oral argument, Smith said a false confession that was not coerced could be a barrier to compensation from the state. But, he wrote, "A confession cannot fairly be called 'uncoerced' that results from the sort of calculated manipulation that appears to be present here -- even if the police did not actually beat or torture the confessor, or threaten to do so. "

As clear as he appears to be about Warney, Smith is at least equally concerned with discouraging "frivolous claims." "This case is easy, because this claimant appears ... to have an exceptionally strong case," Smith wrote. "Our decision today should not be read as implying that any claimant can, by skillful pleading, get a significantly weaker case past a motion to dismiss."

According to Neufeld approximately 25 percent of those individuals who have been exonerated had confessed to crimes they did not commit. This week, Jeffrey Deskovic, who spent 15 years in prison after being convicted of raping, beating and strangling a high school classmate, but was later exonerated by DNA testing, settled his federal civil rights case against Westchester County for $6.5 million.

While it is not every day that cases such as Warney's and Deskovic's are brought, Neufeld hopes that the opinion in Warney's suit will have an effect on other local cases and in other states. That is, while false confessions are not uncommon, they should not generally prevent an exonerated individual from claiming compensation. Certainly as Smith wrote, the wrongfully convicted should have their day in court and an opportunity to establish their claim.

Other claims, though, will wait for another day. The next question would involve whether there will be a trial in Warney v State of New York. According to Peter Neufeld, there have been no discussions with the state about how the case will proceed now that the Court of Appeals has reversed the dismissal. It is likely the two sides will reach a monetary settlement.

Emily Jane Goodman is a New York State Supreme Court Justice

Prosecutors Grapple with Marijuana Arrests

Several years ago in a private conversation, a Fire Department paramedic explained the tension between the New York Police Department and EMS when their units respond to situations involving illicit drugs. Police officers, he said, view drug use as a criminal matter. Paramedics and other medical workers see it as a public health concern.

For years, criminal justice reform advocates have said that non-violent drug offenders should be referred to treatment rather than sent to jail. In 2009, the state scrapped many of its Rockefeller drug laws, a landmark victory for these advocates in the state. But whether the state is moving to view the non-violent drug user as a victim of an epidemic rather than someone who belongs in a holding cell remains to be seen.

More specifically, the state has not addressed how to deal with a person found with marijuana who doesn't need either incarceration or treatment.

Limited Options

So far, implementing Rockefeller drug law reform has been messy and costly, said Glenn Martin, the vice president of development and public affairs at the Fortune Society.

Although prosecutors push more first-time drug offenders toward drug-treatment, most of them wind up in 18-month, in-patient programs. The justice system by and large ignores other types of clinical care, and the state offers few alternatives to incarceration. In particular, Martin noted, treatment has largely been an option for first-time offenders, rather than those who relapse.

"It sounds good to a prosecutor, but who says that this cookie-cutter approach makes sense? It doesn't,” he said in a phone interview. While many prosecutors support the idea of treatment over jail, Martin says they are not usually experts on drug and alcohol rehabilitation.

"New York City has the most robust alternative to incarceration communities," Martin said. But, he added, "None of those resources are utilized."

On paper, the state's drug enforcement methods appear kinder and gentler. But the reforms, Martin argues, have not met the goal of reducing the money spent on tackling drug use and actually rehabilitating people.

"Not a single person has completed treatment," he said. "You can't point to success stories yet?"

Getting Arrested

The treatment debate does not address the issue of why so many people are arrested in the first place. Speaking at a recent panel discussion at the New School, Staten Island District Attorney Dan Donovan said his team of prosecutors “have great discretion” when it comes to diverting alleged marijuana offenders into treatment programs. But he also said many people caught on misdemeanor drug offenses are brought in under questionable circumstances -- like through a stop-and-frisk, which forces individuals to empty their pockets. (Note: it is not a criminal offense to be in possession of a small amount of marijuana, but it is a misdemeanor to have it out in public).

Donovan said that in those instances, prosecutors can move to not press the case. "We got real smart with that," he said. When asked how many cases it has put aside due to improper searches, Donovan said: "I don't think we’ve ever broken that down."

Simply being caught up in a criminal proceeding, however briefly, can create problems, even if the case is dropped or the young drug user is sent to treatment, said Noah Kass, the clinical director at Realization Center, an outpatient treatment program in Brooklyn and Manhattan.

"The trauma of being arrested for a crime you didn't commit is significant for an adolescent. The trauma of being arrested for a crime that's unwarranted could be astronomical," he said. "It sets them on a road. It almost becomes a self-fulfilling prophecy."

User vs. Abuser

Kass said he often finds himself in situations placing young people -- particularly blacks and Latinos -- caught with marijuana into treatment that they don't really need.

"So I will stick a kid who is 15 or 16 who grew up in the South Bronx and was caught with a very little amount of marijuana, and I will stick him in a group with a kid who goes to a private school on the Upper East Side who is suffering from so many more drug issues that comparing them could be futile," he said.

Kass recalled that one of his workers in such a situation worried that the rich kid would learn the "drug game" from the Bronx youth. Kass said, "I was like, 'It is so the other way around.'"

By placing youth in treatment when they do not have real drug problems, the criminal justice system is telling them that they do. This can greatly affects a person's psyche, and is an all too common reality for black and Latino youths in the city, Kass said.

"They say, 'Yes, I’m going to self help meetings. Yes, I'm working on building a solid sober support network,'" he said. "We become sort of complicit in this lie."

If Kass is correct, then the mental health impact on New Yorkers caught with marijuana, arguably the least dangerous of illegal drugs, could be enormous. Last year , the city arrested 50,383 people for possessing small amounts of marijuana. according to a recent report by the Drug Policy Alliance. Gabriel Sayegh, director of the New York office of the Drug Policy Alliance, said the number of marijuana arrests under the Bloomberg administration dwarfs the number of such arrests under Mayors Ed Koch, Davd Dinkins and Rudy Giuliani combined.

Nonetheless, advocates still believe some progress has been made toward treating drugs as a health concern more than a crime problem.

"I think the movement is very marginal, but I think about how long it took to get here," Martin said. "I find myself in rooms with prosecutors now who are comfortable talking about diversion. I think that's a step forward."

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