Gotham Gazette

The Place for New York Policy and politics

Criminal Justice

The End of the Rockefeller Era

Gotham Gazette image by Ya-Hsuan Huang

Thirty-five years after New York's criminal justice system was invaded by a misguided and counterproductive legislative scheme to fight the "war on drugs," there is finally some relief. The statutes known as the "Rockefeller Drug Laws," enacted in 1973 when Nelson A. Rockefeller was governor, have long been called draconian, the harshest in the nation and the end of judicial independence. They were based on long mandatory prison terms even in nonviolent cases involving small amounts of drugs, and judges were not permitted to impose sentences they believed better fit the crime and the accused. [For Emily Jane Goodman's essay on the Rockefeller drug laws, see Huffington Post.]

Now, after long and unprecedented organizing by community groups and criminal justice advocates, along with an aggressive push by elected officials and judges, some of the most onerous and destructive provisions have been removed or amended.

The Rockefeller Drug Law amendments, which were signed into law by Gov. David Paterson earlier this month, reflect a changing philosophy and approach to prosecuting nonviolent drug offenses in this state, especially first offenses, and even incorporate the view that drug addiction is a health issue as well as a legal problem.

Sen. Eric Schneiderman, who introduced the reform bill in the State Senate said, "New Yorkers have been clamoring for changes to these laws for decades and after careful deliberation, we finally achieved significant reform. By expanding the ability of judges to sentence drug-addicted individuals convicted of non-violent drug crimes to treatment, New York State is sending a message that there is a better way than our society's pattern of under-treating and over-incarcerating."

The goal of reform has always been the elimination of mandatory sentences, which forced judges to impose prison terms that ruined more lives than they saved, occasionally breaking the judge's heart at the same time. Some Supreme Court judges have cried as they were required to sentence a mother -- let's say, a first time offender -- to three years to life for carrying a package for someone else who may have misled her as to the contents. Any judicial departures from the mandatory minimums were swiftly reversed by appellate courts.

Now, judges can have that discretion.

The Fine Print

Under the revisions, a typical first offense possession case can result in a sentence of between one and two and a half years or an alternative sentence focused on drug treatment. If the accused has a prior record for a non-violent offense, the maximum becomes four years with treatment alternatives still possible depending on the details of the record. For defendants who previously committed violent crimes, the sentences increase and alternatives are eliminated. All of these sentences require intensive supervision for long periods of time.

The revisions represent significant changes to the sentencing scheme, in the approach to alternatives to incarceration, treatment and supervision. Now judges have the discretion to impose appropriate sentences, including drug treatment programs, without first obtaining the permission of district attorneys. Previously, district attorneys insisted on long periods of incarceration even when a defendant has an opportunity to be rescued from a life of crime by going to treatment instead of a cell.

The amended law provides a mechanism to divert certain eligible defendants into drug treatment. To be eligible, defendants must be non-violent, first offenders (sometimes second), who are not accused of the most serious drug felonies. The court may require the defendant to plead guilty prior to being referred to a community-based treatment program. An individual who fails to complete the program and abide by other conditions will then have to face the consequences of the guilty plea. A defendant who meets all the requirements may then be able to withdraw the guilty plea.

Judge Laura Safer-Espinoza, who presides in Bronx Treatment Court, which has functioned with the district attorney's approval, said such an approach has proved effective. "Over the last 10 years," she said, "I have seen over a thousand clients 'graduate' from our program. They have been drug free, compliant with treatment and working full time, enrolled in job training or back in school. Extending the treatment option to break the terrible cycle of drug abuse and crime is not 'soft on crime policy.' Defendants must plead guilty, undergo continuous monitoring by the court, and face serious penalties and higher sentences for non-compliance."

While the Rockefeller laws may have been directed at "drug kingpins," small time users -- most of whom are poor, and black or Hispanic -- felt the brunt of their effect. The reforms do not protect the big-time dealers or major traffickers, who can still be sentenced to 25 years to life. Cases involving violence, or defendants with records, violent or not, can still face heavy sentences.

Not the End of Rockefeller

For the last three and a half decades, when it came to drug offenses, the scales of justice have not represented our adversary system, with a prosecutor on one side, defense on the other and a judge in the middle. The shift, according to Gabriel Sayegh of the Drug Policy Alliance Network, came as prosecutors convinced the state's leaders "that judges are entirely incapable or incompetent to fashion appropriate sentences or actually do what their titles imply they should do - judge."

Even with the reforms signed, some still hold to that philosophy.

Councilmember Peter Vallone, Jr., a former assistant district attorney in Manhattan, wrote in the New York Post that the reform would turn New York into a "violent drug bazaar."

Daniel M. Donovan, the district attorney of Staten Island and the president of the state District Attorneys Association, told the New York Law Journal: "What you are doing is you're cutting out an essential part of the process, the district attorneys. And we are the ones that are elected to protect the public safety. And now we have been cut out of the process that helps insure that public safety."

Similarly, some prosecutors and legislators who oppose judicial discretion argue that New York City judges are not tough enough in sentencing drug users.

Beyond the criticism, some officials are still trying to work out how these reforms will affect the state's current prison population.

Individuals who were arrested before the law changed will, if convicted, be sentenced under the new law, and certain convicted felons can apply for re-sentencing. Some who are now in prison may also be able to apply for re-sentencing.

Elsewhere, even those who applaud the legislators and Paterson argue many addicts still will not qualify for treatment and rehabilitation. According to Donna Lieberman of the New York Civil Liberties Union, the changes "restore an important measure of common sense and rationality to our drug laws. But there is more work to be done in the future to restore fundamental justice and fairness to our criminal justice system."

It is too soon to know exactly how the details will work in drug treatment courts and state Supreme Court, but it is clear that we can say goodbye to some of the most egregious inequities of the old law.

Failed Justice: Convicted but Innocent

Photo (cc) mag3737
How does one move on from a wrongful conviction?

With Dr. Seuss's pink hardcover of "Oh Say Can You Say?" tucked under his right arm, Alan Newton politely follows the energetic students down Jackie Robinson P.S. 375's beige halls. The children scout out a class for Newton. It's Read Across America day and his chance to read aloud Seuss' book of clever tongue twisters.

Newton had arrived around 10 a.m. to help organize and direct volunteers. But now it is close to 1 p.m. and most of the classes received their readings earlier. Teachers have resumed their lesson plans. Newton missed his chance.

Newton has missed many chances in life. Now 48, he spent almost half his life in upstate prisons for rape, robbery and assault charges stemming from a June 1984 crime against a woman in the Bronx. Not until 2006 did DNA absolve him of the 1985 conviction. He was innocent.

Exonerated after spending 22 years in prison, Alan Newton waits in the hall of P.S. 375 after participating in Read Across America.

Newton's story is just one of hundreds nationwide that have weakened faith in the justice system. New Mexico Gov. Bill Richardson repealed the death penalty in his state in March, citing the potential for executing the wrong person among the many reasons.

Here in New York, the state bar association has begun identifying the causes of wrongful convictions in New York. In a recent report, an association task force reviewed 53 cases of vacated convictions. Its findings do not conclude that each was a case of innocence, but that errors and lapses in due process led to "a conviction [that] was wrongfully obtained."

A number of bills to address wrongful convictions have been proposed in the state legislature, and a previous attempt to expand the state's DNA database could have resulted in fewer conviction errors.

"No one benefits from a wrongful conviction. Not the police, not the prosecutor, not the judge, not the jury, not the victim," said Stephen Saloom, policy director at the Innocence Project. "The only person that really benefits is the perpetrator."

Causes of Wrongful Conviction

The 53 cases studied by the bar association represent only a sample of cases, although it's difficult to determine the extent of wrongful convictions in New York. The state Division of Criminal Justice Services does not keep track of wrongful convictions, said John Caher, the director of public information. Whatever the number, criminal justice experts and professionals agree that flaws in the system need to be addressed.

Newton's case exemplifies how things can go so terribly wrong. Soon after Newton's arrest, he said his then fiancée presented his alibi: Newton was in Queens with her at the time of the rape. But a Bronx store clerk identified Newton in a lineup as the male customer who trailed the victim out of the store. The victim, too, identified Newton. She chose him in a photo array as the man who forced her into his vehicle after she left the store, dragged her to a park and raped her, then stalked her as she tried to flee. He then allegedly brought her to an abandoned building where he raped her again and blinded her in the left eye with a box cutter.

Newton said in 1979 police had slapped him with a misdemeanor assault charge after he and his teenage friends grappled with an opposing group of teens. Five years later, his arrest photo was shown to the rape victim.

"Her testimony and the store clerk's testimony convicted me," Newton said. "That photograph is ultimately the reason why I'm here today."

Improvements in forensic science finally caught up with the evidence in Newton's case. Newton began requesting DNA testing on the victim's rape kit in 1994, nine years into his 13 and a half to 40-year sentence. Officials say they could not find the evidence.

The Innocence Project took up Newton's case. Since 1992, the non-profit legal organization has helped free 234 people based on DNA evidence, said a spokeswoman. Through its efforts, the kit was found in 2005 where it should have been all along, Saloom said.

Newton's case was among the 53 the task force studied. Mishandling of forensic evidence and/or not using DNA testing contributed to a wrongful conviction in almost half the cases. In most, as in Newton's case, which involved mishandling of forensic evidence and misidentification, more than one factor contributed to the wrongful conviction.

The task force found that errors by defense attorneys, false confessions and false testimony by jailhouse informants also contributed to imprisoning the wrong person. About 58 percent of vacated convictions stemmed from errors by a prosecutor, officer or judge. The most common cause of wrongful convictions, misidentification of the accused, accounted for about 67 percent of the cases.

Newton felt wronged but did not hold a grudge against the victim, he said. He thinks it was an honest case of mistaken identity. But he is definitely mad at the justice system.

"It's almost like there's no incentive for them to find out the truth about an innocent person because the cops solve the crime, they get a promotion or a raise or whatever," Newton said. "When a person is exonerated and a cop goes out his way to help the person, you don't hear about him getting no accolades."

Prosecutorial Problems

The state bar association's task force tackled the 53 cases last year in an effort "to pinpoint where the system let us down," said Bernice Leber, a partner at law firm Arent Fox and president of the bar association.

The task force reviewed cases and interviewed some of the judges, lawyers and the exonerated, Leber said. Their findings showed what other legal experts and advocates knew: The system needs reform.

In 31 cases, government malpractices contributed to a wrongful conviction. These included a prosecutor's failure to hand over information the defense had a right to examine and a prosecutor's purposeful use of false testimony. Failure to collect and preserve evidence and police not investigating other potential suspects were also cited by the report.

"I think if a prosecutor knowingly presents false testimony and it can be shown, then it's a crime and it's a kind of behavior from any lawyer that the system can't tolerate," said defense attorney Joel Rudin. He estimates he has helped overturn about 15 convictions.

Prosecutors argue that purposeful misconduct happens infrequently. But unintentional errors sometimes occur, such as not giving the defense evidence that the police unintentionally withheld from the prosecutor, said Anne Swern, first assistant district attorney for Brooklyn District Attorney Charles Hynes, a member of the task force. On appeal, the prosecutor's failure to hand over evidence to the defense could be called prosecutorial misconduct even if it was not a "willful mistake," Swern said.

To limit the argument over withheld evidence, the task force suggests requiring a pre-trial conference that would establish that the defense has assessed evidence held by police and the prosecutor.

A Deficient Defense

Sometimes, though, defense counsel may be at fault. They do not always adequately review evidence or represent their clients. Supposedly on the side of the accused, defense attorneys have contributed to their client's wrongful convictions "usually [through] a failure to fully investigate or to offer alternative theories and/or suspects," according to the report.

"That's fundamental," Saloom said about every defendant's right to reliable counsel. "Our system relies upon an adequate defense --period."

For quality control of defense attorneys, the task force suggests additional resources that allow lawyers to investigate further and receive more supervision of their work. Additional funding could also provide poor defendants with lawyers even after appeal, when they are trying to get their convictions vacated, Rudin said.

"In our system now, no one has the right to a lawyer once they've lost appeal," he said. "You have all these people in prison with no resources whatsoever and no legal training, and most of the time they end up representing themselves and don't know how to do it."

False confessions have also contributed to wrong convictions. In 1990, five teenagers were convicted in the beating and rape of a Central Park jogger. They confessed to the crime on videotape but DNA later implicated a lone man, not the teenagers. In 2002, their convictions were vacated amid accusations of racism and police misconduct during the original investigation.

False confessions helped cause a wrong conviction in 12 of the 53 cases, the task force found.

A Taped Record

Some, including Assemblymember Joseph Lentol of Brooklyn, advocate for videotaping interrogations, not just confessions. This, they maintain, would provide reliable evidence of whether coercion played a role in a confession.

But even those who support videotaped interrogations are leery of the costs involved. If police taped all confessions and the entirety of interrogations, prosecutors would have to view hours of tape, some of which might not be of evidentiary use, and the tapes would have to be stored for years. This all costs money, said Swern, who serves on the board of the National District Attorney's Association. Paying for the equipment could also be an issue in some jurisdictions.

"Indeed, if adequate funding is not provided, there could be an unwitting failure to comply with the mandate and, depending on the sanction for non-compliance, strong and persuasive evidence of a defendant's guilt (i.e., his voluntary confession) may be suppressed," wrote Swern in an e-mail. "That result would not further the cause of justice."

A former prosecutor and defense attorney, Lentol says he plans to push for funding support of proposals like videotaped interrogations.

"Even if it costs money, how much is a human life worth? Do we want to risk a valuable citizen because we didn't have a few bucks?" he said.

With the status of videotaped interrogations up in the air, critics argue that police need more training in interrogations and recognizing false confessions elicited under extraordinary pressure.

"I think police need to be educated more than they probably are that there are such things as false confessions," said Judge Barry Kamins, a former prosecutor and chair of the task force. "If you ask the public most people would think, 'Why would you confess to something you didn't do?' It is a strange phenomenon but it does happen."

Mistaken Identity

Several studies in the last few years single out the misidentification of the accused as the primary reason for wrongful convictions. The task force recommends changes in police procedures that can make the process fairer and more accurate.

The recommendations include assigning an officer who does not know the identity of the suspect to administer lineups and photo arrays. This prevents intentional or unintentional influence by the officer on the witness.

In one of the most egregious instances, Leber said, "the accused was handcuffed to a table during the lineup and no one else was."

Each step in the identification process should be documented, including the witness's degree of certainty when describing the suspect or picking a suspect from a photo or lineup, according to the report. The New York Police Department did not return requests for comment on the recommendations.

The New Tool

To undo the potential for human error posed by, for example, witnesses or police, the courts have relied heavily on the absolutes of DNA profiling. Since its inception in 1985, the evolution of DNA profiling and its use in solving crimes has led to a push for increased DNA testing. But many support DNA database expansion more as a strategy to catch the guilty than to clear the innocent.

Former Gov. Eliot Spitzer sought to expand the DNA database by including anyone convicted of a misdemeanor or a felony, instead of just some felonies, like sexual assault. But that fell through with his governorship.

Rockland County State Sen. Thomas Morahan has proposed new legislation to mandate DNA samples from everyone convicted of a felony since Jan. 1, 2003. His motivation for the expansion: helping police solve sex crimes. And in his State of the City speech last year, Mayor Michael Bloomberg proposed that arrestees, not just convicts, be required to add their DNA swab to the database.

But less than 5 percent of cases involve DNA evidence that can 100 percent prove innocence or guilt, said Saloom. Rudin said none of his wrongful conviction cases included DNA that could absolve his client. In those cases he couldn't argue innocence based on DNA, but instead had to attack the "fairness of the process."

"The reason we're supposed to have a fair process is to increase the likelihood that the result will be consistent with what really happened," Rudin said.

Reducing Mistakes

The task force's proposals, as well as those from the Innocence Project and some members of the state legislature, seek to increase the fairness and accuracy of the criminal justice system. Lentol, for one, has sponsored legislation that makes it easier for the accused to request post-conviction DNA testing on evidence, such as rape kits. Presented in February, the bill has been referred to the Committee on Codes, of which Lentol is chair.

This bill accompanies a package of legislation that would expand the state's DNA database, require videotaping of interrogations and establish an Innocence Commission, Lentol said. The commission would investigate and reconstruct cases of wrongful convictions -- as investigators reconstruct a plane crash -- to find the faulty parts, he said. If his bills make their way through the political and bureaucratic obstacles, Lentol said he expects them to come up for a vote in late April or May.

Another bill in the Assembly, similar to Lentol's Innocence Commission, has spent two years working its way down the pipe. Sponsored by Assemblymember Michael Gianaris of Queens and picked up in the Senate in 2008 by Sen. Eric Schneiderman of Upper Manhattan, the bill would create the State Commission for the Integrity of the Criminal Justice System. The bill has been referred to the Ways and Means Committee in the Assembly and the Judiciary Committee in the Senate.

The permanent commission would investigate cases of wrongful convictions to establish their causes. The unpaid commission members would submit to the attorney general and governor recommendations on how to prevent wrongful convictions. Schneiderman says he thinks the governor and legislature would take the recommendations seriously because "the evidence of wrongful convictions that has developed in the last decade has had a tremendous effect on public policy."

Life After Wrongful Imprisonment

The crime Newton was convicted for is still an unsolved mystery. DNA excluded Newton but has not linked police to the actual perpetrator. Newton said he wishes the rapist had been caught 20 years ago. But he focuses on his present life and reminds himself that it feels good to be home.

On Read Across America day he opted for the professional look: a dark, well-fit suit paired with a red and gold striped tie. This might be his regular get-up in the next few years. After spending countless hours reviewing his own case while in prison, Newton wants to be a lawyer.

"I tell people I've been studying law for 20 years," he said.

He hasn't applied to law schools yet, so until then he has his job in the Male Development and Empowerment Center at Medgar Evers College. He recruits male students and sticks with them to encourage them to graduate. The center also organizes community service events, like reading to children at local elementary schools. While working at Medgar Evers, Newton earned his B.A. in business administration. It didn't take the average four years --he earned college credits while in prison.

While he has adjusted to his new life, nostalgia for what his life could have been is evident when he talks about his former fiancée. His family liked her and her family liked him, he said. But his conviction changed all that.

"One of the things she told me, she said, I hurt her because I told her I was coming home, and I didn't come home," Newton said. They never married.

For his time lost, pain and suffering, Newton is suing the city and the state for $50 million each. He filed his suits for compensation in late 2006, yet he is still not close to a conclusion.

"One thing I have plenty of is patience," Newton said. "What were you doing all that time in that cage? You were waiting."

Compensation for New Yorkers wrongfully convicted has varied wildly. Victor Ortiz won $530,000 in damages in 2000. He served nine years for rape and sodomy that DNA evidence later helped overturn. But in October 2008, Rudin helped Shih-Wei Su obtain $3.5 million for his 12 years in prison.

The task force suggests setting a minimum level of compensation, but if the convicted person opts to seek more, the minimum amount is waived. Other states have set minimum compensation amounts, but some have a hard time placing a dollar amount on an individual's life.

The state's claims law also currently excludes compensation for anyone who falsely confesses. The task force wants to see that change, too.

Aside from compensation after incarceration, which can take years, some argue that counseling, job training and other assistance for the wrongfully convicted is lacking.

"I think they need the most help of all because they shouldn't have been there," said Kamins. "After all, somebody in jail for 20 years for something they didn't do and you just open the door and say, 'Goodbye, here's some train fare.' That's just not appropriate."

But state officials dispute that; saying that the wrongfully convicted can access reintegration services as any other formerly incarcerated individual could.

Luckily, Newton, who said there was no government help for him after his release, had family he could rely on and an education underway. He doesn't mind the media attention, he says, because people need to know the system is flawed.

"A lot of times people don't believe this happens," Newton said. "This doesn't happen to the billionaires, this happens to ordinary people. They think it happens to other people. We all are those other people."

Court Limits 'Today Only' Plea Bargains

Plea "bargains," which are not necessarily bargains for any of the participants, are what keep the criminal justice system from collapsing under the weight of the number of cases. In 2008 of 7,611 new felonies filed in New York County (Manhattan), 6,142 cases ended in guilty pleas, 995 cases were dismissed and 397 had verdicts after trial, according to the New York State Unified Court System. The Bronx had 4,876 pleas and 137 trial verdicts. And in Kings County (Brooklyn) there were 5,250 pleas and only 267 trials.

There are rules regarding the pleas, however. The Supreme Court Appellate Division Second Department, sitting in Brooklyn has vacated the conviction in the case of People against Terry Grant on the grounds that his guilty plea was coerced by a judge in Nassau County. Grant, a dentist, was charged with fraud and falsifying business records by submitting bills to insurance companies for work he had, in fact, never performed.

The decision resulted in the guilty plea being vacated because Judge George R. Peck gave Grant only five minutes to decide whether to plead guilty or go to jail until his next court appearance at least. In other words, if he pled guilty he would walk out of the courthouse, but if he did not enter the guilty plea, he would be incarcerated -- his $1,000 bail would be revoked and he'd be remanded to the custody of the Department of Correction.

The decision is unusual because guilty pleas are not usually set aside on appeal. Moreover the case was a year old, and it appears that the Peck was eager for it to end one way or the other. Still, this kind of "choice" is a common scenario in criminal courts, where judges sometimes tell defendants that "it's a one-day sale," and they won't be offered the same deal if they don't plead guilty immediately. But allowing the choice of the plea or jail to be on the record laid the groundwork for the appeal.

Justice Steven W. Fisher and the appellate panel found that Peck had confused the purpose of bail, which is to ensure the defendant's return to court, with the matter of entering a plea. "Bail status," the Appellate Division has now said, "concerns only the kind and degree of control or restriction that is necessary to secure a defendant's attendance when required. It has no legitimate connection to the mutuality of advantage underlying plea bargaining."

Fisher wrote that when a defendant pleads guilty, it relieves the prosecution of having to prove guilt beyond a reasonable doubt and eliminates the possibility of the defendant being found not guilty. In exchange, the defendant almost always receives a more lenient sentence than would be imposed after a trial. This is done because of "the need to dispose criminal cases without trial so that the particular local jurisdiction can manage its criminal caseload."

Grant's Choice

The record contained the following from Peck. "If he [Grant] wants the plea deal, I will continue the bail status that he is in." But "if he doesn't take the plea deal today, I'm going to remand him until Monday."

At that point, Grant, who was represented by counsel, pled guilty. Peck had already advised him that if he didn't plead guilty but maintained his right to a jury trial and was convicted, he would be sentenced to state prison. However, if he pled guilty he would probably be placed on probation.

The proceedings took place on a Friday. The defendant could think about it over the weekend, but he'd have to think about it in jail. If he wanted to go home, he would have to plead guilty right then to grand larceny and related crimes.

Grant had five minutes to make his decision. And he decided to plead guilty and leave the courthouse. This is a common scenario in criminal courts, where judges tell defendants that they won't be offered the same terms if they don't plead guilty immediately.

Prior to accepting the plea, the judge asked certain required questions, including: Has anyone threatened or coerced you? Is this plea voluntary? For the plea to be accepted, Grant had to answer "no" to the first question and "yes" to the second.

The judge warned Grant that, by pleading guilty, he would waive his right to appeal (which is not correct where there is a claim of coercion), would have to pay restitution and a fine, and his license would at least be suspended. Also, the district attorney could recommend a prison term of one and a third to four years, but the court was inclined, subject to a probation report, to sentence the dentist to probation. Ultimately Grant received five years probation and had to pay restitution of $10,102.20 and a fine of $20,000. His dental license was not revoked or suspended.

Grant tried to withdraw his guilty plea before sentencing, because, he said, it had not been voluntary, but was entered under duress and coercion. Peck denied that request, saying there had been no coercion. Grant appealed to the higher court.

The Court's Decision

The appellate judges concluded, "When the court threatens to increase bail or remand the defendant unless a guilty plea is entered, any resulting plea cannot be deemed voluntary because the defendant's decision to plead guilty would no longer represent a free choice. ... A threatened change in bail status may not be used by the prosecution or the court as a 'bargaining chip' to persuade a defendant to plead guilty." Here, they found, "The court made an unadorned threat to remand the defendant without bail if he did not plead guilty, and that the threat was a powerful factor in persuading the defendant to enter the plea when he did. ... Therefore, the defendant's guilty plea was not voluntary.

Since the waiver of any right must be knowing, intelligent, and voluntarily, the question before the appeals court was whether that test was met in Grant's case. The Appellate Division found that it was not. Therefore, since the guilty plea was the product of unreasonable pressure, it was not voluntary and was vacated.

According to Howard R. Birnbach, Grant's attorney for sentence and appeal only, the case now is scheduled for trial. The district attorney is Kathleen M. Rice with Judith R. Sternberg and Barbara Kornblau of counsel.

Emily Jane Goodman is a New York State Supreme Court Justice

How to Fight an International Landlord

Photo (cc) TAPorto

In late 2007, East Harlem tenant, Victor Calentre opened his rent check to find an additional bill charging several hundred dollars for unspecified repairs he knew nothing about. He assumed it was a mistake on the part of his landlord, British-based real-estate conglomerate, Dawnay Day International. But as the fine increased month after month -- reaching $8,000 -- Calentre suspected that this was not merely an error and soon discovered he was not alone.

Spurred on by Calentre and his fellow tenants, Movement for Justice in El Barrio embarked on a campaign to fight Dawnay Day and protect residents of rent stabilized apartments. The British firm, though, was no ordinary New York landlord, and so the Movement for Justice went beyond conventional tactics, framing their effort as a fight over consumer rights rather than housing, using the logic that tenants are, in fact, consumers too. The group also reached far outside its neighborhood to oppose Dawnay Day, organizing a network of British activists to confront the firm on its home turf. In doing this, the Movement for Justice believes it may reshape the way similar organizations fight gentrification.

Troubled Buildings

Originally, many tenants celebrated when Dawnay Day took over their buildings. Tenants had accused the previous landlord, Steven Kessner, of neglecting basic repairs for rent-stabilized tenants and offering financially desperate tenants buy-back sums far below the market rate.

According to the tenants, though, Dawnay Day, has continued and even intensified Kessners's efforts to drive out the buildings' rent-stabilized tenants. The new landlord began issuing rent-stabilized tenants erroneous fines, like Calentre's. It charged residents for false repairs and appliances that were never purchased, and set fines for improper use of appliances. Initially bewildered, the tenants soon became convinced these charges were not mistakes, but administered selectively to rent-stabilized tenants in an effort to intimidate and drive them out, allowing the owner to charge the market rate.

"When it became clear that Dawnay Day was worse than the previous owner, we had to sit down and figure out how to take on this multi-national corporation," said Juan Haro, a leading member of Movement for Justice. "We had never before faced this kind of landlord."

After several strategy meetings, the 440-member tenant group settled on a two-pronged strategy: It would file an innovative lawsuit and also would begin to build an international support base to confront the firm in its home base in Britain.

Phil Blakely, director of Dawnay Day, said in an interview with WNYC that his firm had done nothing wrong. "I am … sort of upset and disappointed that we've been accused of the things we've been accused of and that we are as bad or worse then Steven Kessner," Blakely said.

Tenants as Consumers

The tenants wanted to take legal action against Dawnay Day to clear the frivolous debts. With the pro bono help of lawyers from Harlem Legal Services (the 125th Street branch of Manhattan Legal Services) and the Neighborhood Economic Development Advocacy Project, the Movement for Justice sorted through already-tested legal approaches, none of which looked promising.

Because Dawnay Day was not necessarily charging incorrect amounts of rent, housing laws -- on which tenant groups usually rely -- did not offer much remedy. These laws pertain more to rent payment and collection than to separate charges like those issued by Dawnay Day.

"What to do here was not explicitly covered in housing law, so we had to look at what other bodies of law could cover this practice," said Chaumtoli Huq, a lawyer with Harlem Legal Services. "Then we found that this case was more appropriately covered by consumer protection laws. … All tenants are also consumers."

The Movement for Justice decided to incorporate consumer laws to the fight over housing displacement. A first step was to notify its tenant members of the Federal Fair Debt Collection Practices Act, which guarantees a consumer's right to challenge or receive written verification of debt. Members who had received false charges then wrote to Dawnay Day, notifying it of the law and demanding verification of their charges.

This strategy worked, but only temporarily.

For several months, the tenants' debts decreased or, in some cases, disappeared. But then false charges appeared again. Calentre, for instance, had fines -- for repairs that were never done, a refrigerator that he hadn't bought, interest and late fees -- in excess of $8,000 when he protested to Dawnay Day. He then watched the charges fall to the low hundreds, but a few months later, they climbed back up to nearly $4,000, where they hover currently and without explanation.

"Now, the bills don't even say what the charges are for," Calentre said. "They just show the amount that is owed in addition to the rent."

As it became clear that the letter-writing initiative provided no permanent fix, the Movement for Justice elected to file a lawsuit against Dawnay Day. Because the firm had complied, at least momentarily, with the tenants' requests of debt verification, they could not take them to court for violating the debt collection act.

Sifting through New York State consumer law, the group's lawyers found a statute in the New York General Business Law forbidding false and deceptive business practices. Because issuing false charges to customers falls under this law's provision, the Movement for Justice filed a lawsuit on behalf of 22 tenants, like Calentre, who had received allegedly false charges from Dawnay Day. The suit demanded that the charges be eliminated and that Dawnay Day refrain from such activity in the future.

Though the suit is still pending, the plaintiffs are optimistic. They say Dawnay Day asked for a settlement, which the Movement for Justice rejected because it did not include an all-encompassing commitment to stop issuing the false charges.

International Effort

At the same time, the Movement for Justice was taking the tenant's fight to Europe and particularly the United Kingdom, where Dawnay Day is headquartered and well known. The Movement for Justice had concluded that building a support base on the company's home turf was an essential tactic to their fight.

"We could have kept the struggle local, but targeting Dawnay Day in just Harlem or New York City would not be successful," Calentre said. "This is really an international struggle."

The Movement for Justice has circulated an online pamphlet explaining the situation and seeking help from a wider community. It called for the creation of a "multi-national network of allies and supporters who will stand by and support us in our struggle as we expand our resistance to take on Dawnay Day Group in London and any other global, national or local threat to our right to dignified housing, autonomy and self-determination." Though no one knew how effective the pamphlet would be, it generated a fair amount of interest.

"Lots of people stepped up -- more than we had imagined," said Haro, who went to Europe to press the tenants' case. "And many of them said, 'if you come, we will generate support for you here on the ground'…They understood that this was not just about raising awareness, but for creating a practical support base."

With such a response in March 2008, Haro went to England, Scotland, France and Spain, to meet with groups that offered to hold forums about the Dawnay Day situation. As Dawnay Day remains little known in the U.S., a main objective of the trip was spreading information about the firm's tactics among people somewhat familiar with the company. Over the course of the six-week trip, Haro attended 25 meetings and public forums.

After these events, "movement support committees" formed consisting of people who pledged to give their active support to the New York tenants. These activists agreed to participate in direct action efforts to raise awareness in Dawnay Day's home country in order to more effectively apply pressure to the firm.

As the trip concluded, the Movement for Justice and its new international allies began planning a mid-October action, in which press conferences and demonstrations would be held at Dawnay Day's offices in both London and Scotland. By mid-summer, the plane tickets for the event had been purchased, the local activists' commitments secured, and the plan solidified.

But then the unexpected occurred. A victim of the global financial meltdown, Dawnay Day posted major losses in July, and began selling off assets worldwide. With the landlord's future uncertain, Movement for Justice canceled the October action and refunded their plane tickets.

Today, while the lawsuit continues, the Movement for Justice is refraining from direct action against Dawnay Day until it is certain as to whether Dawnay Day will retain its East Harlem real estate. Meanwhile, basic repairs go undone and false fines continue, though the tenants have noticed that the landlord has become a bit less brazen in the latter practice.

Although the murkiness of the situation has frustrated some of the tenants, the Movement for Justice sees the past two years as a triumph in organization and innovation, strengthening its position to negotiate with the buildings' future owners and other landlords. The group also takes satisfaction in seeing that its efforts have created a template that other tenants' organizations can use. For example, Queens Vantage Tenants Council, a tenant group in Queens, has adopted the use of consumer law in a different fight over false charges.

"The outcome remains to be seen here, but the general principle is that we need to look at other bodies of law and be creative in the ways we confront landlords," Huq said. "As landlords like Dawnay Day come in, they bring in new practices. So we need to look at these new problems and be ready to come up with novel solutions."

Spencer Woodman is senior at Sarah Lawrence College studying writing and economics and a freelance writer. Jerry Deleon and Tom Kiely provided translating for this article. Joe Lamport is the assistant director of the City-Wide Task Force on Housing Court, a coalition of community housing organizations.

The Tough Battle to Repeal Tough Drug Laws

Photo (cc) llimllib

"This is the year to reform the Rockefeller drug laws," Gov. David Paterson has just finished saying Tuesday morning in Albany. He stands before a crowd of hundreds as a man with shaggy gray hair approaches him with a stack of signatures. Paterson shakes the man's hand and smiles. One by one advocates from across the state present the governor with piles of petitions and declare their support for the "full repeal of the Rockefeller Drug laws," New York's harsh rules on sentencing of drug offenders. Advocates are excited to have Paterson listening to them.

Assembly Speaker Sheldon Silver and Senate Majority Leader Malcolm Smith also have dropped by to support the cause. But the truth is, Paterson and these advocates are talking about two different things. The advocates, who carry a total of 30,000 signatures, are demanding full repeal of the Rockefeller drug laws, while Paterson is advocating changing the laws.

This Tuesday, hundreds of drug reform advocates descended on Albany, and, in sharp contrast from their chilly reception in years past, found the governor, Senate majority leader and Assembly Speaker all waiting to greet them and listen to their concerns.

The Assembly recently passed a Rockefeller drug law reform bill that emphasizes the importance of treatment over incarceration and restores a hefty amount of judicial discretion in the sentencing of drug cases. It is what New York State drug reform advocates have always wanted -- sort of.

What the Assembly Bill Does Not Do

Advocates of major changes to New York's drug laws are walking a thin line between jubilation and disappointment these days. The Assembly's legislation would make about 50 percent to 60 percent of currently incarcerated offenders eligible for treatment instead of incarceration. It would increase funding for drug rehabilitation programs and community-based alternatives to prison. But it does not restore judges' discretion in a number of cases.

Offenders subject to mandatory prison sentences would include people who sell more than a half ounce or possess more than four ounces of a hard drug; people who have a violent felony conviction in the last 10 years; and adults who sell drugs to minors.

Advocates stress that they object not to such limits but to the fact that the Assembly bill leaves mandatory sentences intact and still judges offenders by the amount of narcotics in their possession at the time of their arrest. Reform proponents want to see offenders judged on the individual's prior record and what his or her role in the transaction was. They say it is important to differentiate between an addict selling drugs to maintain a habit and a higher-level drug dealer.

Politicians, though, find it difficult to do away with mandatory minimum sentences on offenders whose crimes seem serious because politicians don't want to be seen as soft on criminals.

In other words, the Assembly bill is not full repeal. "The public needs to know that this is not what we have been fighting for," said Caitlin Dunklee of the Drop the Rock Campaign. She estimated the Assembly legislation would leave 50 percent of future drug cases subject to the constraints of mandatory sentencing.

In this, there is a sense of deja vu. Dunklee said that in 2004 and 2005, when the legislature made some reforms to the drug laws, "it was painted as full repeal. People stopped caring and we continued to have these harsh laws on the book."

Whatever its shortcomings, though, the Assembly bill might not become law even though Democrats control both houses of the legislature and the governor's mansion. This presents a bit of a quandary for those advocating repeal. They have to push the Senate to act on a bill similar to the Assembly's and at the same time remind legislators that this is not the end in the fight to repeal the Rockefeller drug laws.

"The stars are the most favorably aligned they ever have been, "said Robert Gangi, executive director of the Correctional Association of New York. "We have a Democratic governor, the Democrats control the Senate, and we have the fiscal crisis. Because in the end this is an issue of money."

The Senate's Turn

Insiders say Silver has rushed forward on progressive bills such as drug reform to earn himself political capital and reaffirm his base after facing two primary challengers last year, all the while knowing that Smith would not have the support to pass them in the Senate.

Gangi admitted that there is a lot of opposition to the Assembly reform bill in the Senate. "We hear it is not just Republicans but blue dog Democrats," he explained.

Democratic Sen. Craig Johnson of Port Washington, for one, has made it clear that he has "significant reservations" about the Assembly's reform bill, although Johnson's spokesperson, Rich Azzopardi, said that Johnson "is not prepared to negotiate those reservations in the media."

Rather than try to hash out the differences between his conference members on an individual reform bill, Smith has decided to make Rockefeller reforms part of the Senate budget package. Smith told the gathered advocates on Tuesday, "I want to assure you all that what we are going to do, in this year, in this budget, is reform the Rockefeller Drug Laws."

Azzopardi said Smith's decision to move the drug reform legislation into the budget process makes "a certain amount of sense, as both sides of the debate have economic implications."

Advocates for Rockefeller reform and repeal say that changing the drug laws and allowing judge's to send offenders to treatment rather than jail will drastically reduce the amount the state spends on incarceration. Opponents say sending offenders to treatment will be a financial burden on the state.

Republican opponents of Rockefeller reform do not find Smith's decision as appealing. Republican Sen. Frank Padavan of Queens told the Post, "I think we ought to be very careful when we start talking about putting 2,000 drug pushers on the street. That's outrageous to put in the budget. It's the worst form of political chicanery."

Paterson's Concerns

Uncertainty in the Senate is not the only obstacle standing in the way of the Assembly's bill becoming law; advocates are growing ever more concerned that the man who started the discussion of drug law reform this year, mentioning it in his State of the State address, might be wavering in his support. They say that Paterson's representatives at the negotiating table want to scale back parts of the Assembly's bill. One of the sticking points apparently is restoring a judge's discretion in drug cases where the offender has committed a second felony.

Advocates say that Paterson or his staff are posturing in preparation for the 2010 gubernatorial campaign.

Paterson's position has indeed changed since he was Senate minority leader in 2004. Back then, Paterson proposed drug law reform that would have included restoring judicial discretion for all second-felony drug offenders convicted of B-E level felonies (felonies are graded from A to E by their level of seriousness) as long as they did not have a violent offense in their history.

A spokesperson for Paterson said, "On the biggest issue the governor agrees on the fact that judges should be able to exercise discretion on non-violent felonies. The governor has put together a working draft bill to discuss with the Assembly and Senate, and they are working on their differences." The spokesperson said that disagreements exist over mandatory minimum sentences and to what extent any changes should be retroactive.

Paterson’s office reportedly is concernedthat making the law retroactive would be prohibitively expensive because of the number of resentencing petitions that would be filed.

The Next Moves

In the end, if Smith's gambit pays off and the Senate moves on reforms, advocates say they will celebrate but at the same time know that there is more to do. They say they have known they were in a battle for "incremental change" from the start. In their opinion there are a lot of good aspects to the Assembly bill. They just worry that another time where the political stars align may not come along soon.

Albany County District Attorney David Soares, who has been a staunch critic of the Rockefeller drug laws, said there is one gigantic benefit of the Assembly bill if it should pass: funding for alternative treatments. "The criminal justice system is open 24 hours a day," said Soares. "It's a shame people have to come here to get the help they need. But because of this reform less people will have to go through the criminal justice system to get that help."

Court Upholds a Hole in 'Safety Net'

Photo (cc) Tracy Collins
A woman at an anti-eviction block party in Bergen Hill, Brooklyn

The New York Court of Appeals has ended years of litigation with its recent decision that the state's Safety Net Assistance program does not assure that shelter allowances it provides will be adequate to rent a home and that the allowances cannot be challenged by benefit recipients.

This ruling therefore makes a clear distinction between the Family Assistance program, which guarantees an "adequate" allowance for shelter and the Safety Net program, which does not.

A Struggle to Pay the Rent

The plaintiffs in the current lawsuit, Doris Brownley and Janee Nelson, both single mothers, commenced the lawsuit in 2002. They were acting on their own behalf and for all families with children who receive Safety Net Assistance benefits but who are faced with eviction from their homes because the New York City shelter allowance will not cover their rent. In addition, they do not qualify for a rent supplement under other programs or qualify for a supplement that still does not meet their needs. In other words, the rent contributions they receive from Safety Net are less than their rent, leaving them to face eviction and the risk that their children will be placed in foster care.

Doris Brownley and her young son lived in Brooklyn in a one-bedroom rent stabilized apartment. The rent was $879.75 per month when the current round of litigation began. She received public assistance until she found a job and also began attending college. However, after an accident and surgery she lost her job and reapplied for welfare. In the meantime, she fell behind in her rent, and the Safety Net program in which she was enrolled paid only partial rent to her landlord.

Her landlord initiated a non-payment proceeding against Brownley who was unable to pay the balance of $579.75 but once in Housing Court agreed, unrealistically, to pay a judgment of $5,050 for arrears within a month.

Janee Nelson lived in the Bronx with her then-four year old son, her stepfather and three young stepsisters in a three-bedroom rent stabilized apartment with a rent of $1,401. Nelson, too, had lost her job and was attending school. With various benefits to members of the household they still fell $401 short on their rent. In March 2004, a non-payment proceeding was brought in Housing Court where, to forestall eviction, like Brownley, she agreed to pay within a very short time $4,055, including arrears and fees, which she did not have and could not obtain.

Allowances for Shelter

Eligible individuals who receive public assistance for housing costs under the Family Assistance program are limited to the five-year period of "welfare" that a person may receive in her lifetime, regardless of need. This is a combined federal and state program that followed the enactment of the Clinton administration's Personal Responsibility and Work Reconciliation Act of 1996. In the wake of the federal mandate to "eliminate welfare as we know it," New York enacted the Family Assistance program for families with dependent minor children, replacing Aid to Families with Dependent Children. After the five years, eligible people may seek the protection of Safety Net, which provides shelter assistance.

Under the Family Assistance program and a case begun two decades ago in the late eighties, and well known as "Jiggetts," funding must be adequate to provide a family with a home. Jiggetts, which was also ultimately decided by the Court of Appeals, held that this state has a duty to establish shelter allowances for Family Assistance recipients that bear a reasonable relationship to the cost of housing in New York City. With that mandate, "allowances shall provide for the support, maintenance and needs of one or both parents if in need and in the home and for the support, maintenance and needs of the other relative if he or she is without sufficient means of support, provided such parent, parents and relatives are not receiving federal supplemental security income payments and/or additional state payments for which they are eligible." In Jiggetts, the courts found in 1988 that shelter allowances did not bear a reasonable relation to the cost of housing in New York City, and new shelter allowances were established.

The more recent court case sought to extend that reasoning to the Safety Net assistance. The court ruled, however, that while Safety Net may be available after the 60-month limit on Family Assistance runs out, it does not have the Jiggetts provision and does not have to be adequate to pay for a reasonable home. Plaintiffs had attempted to intervene in the Jiggetts lawsuit, but were directed to commence their own court action, which was dismissed by the Court of Appeals.

Judge Victoria Graffeo, writing for the entire court and upholding the lower courts, distinguished the two relevant programs. Family Assistance, she wrote, is for the explicit purpose of enabling a family to "raise a needy child properly, having regard for the physical, mental and moral well-being of such child," in light of New York's commitment to the protection of children and the maintenance of children in the home. Safety Net Assistance, however, she continued, "places no restriction on how long a person is eligible to receive ... benefits, applies more broadly and is not contingent upon the presence of children in the household."

Thus, the state's highest court concluded that the adequacy requirement does not apply outside Family Assistance and that that was the intent of the legislature. "It was," the opinion said, "the burden of the legislative and executive branches of government to weigh 'the intractable economic, social and even philosophical problems present by public welfare assistance programs.'"

The court dismissed the plaintiffs' arguments of unconstitutionality saying, "there is no right to a constitutionally prescribed minimum shelter allowance since it is the prerogative of the legislature to determine who is 'needy' and allocate the public dollar accordingly."

According to Scott Rosenberg of the Legal Aid Society, counsel for the plaintiffs, both Brownley and Nelson lost their apartments when they could not pay the rent. No other information was available about them or their families.

The State of New York was represented by Oren Zeve of the office of Attorney General Andrew Cuomo. A brief in support of the tenants was submitted by several public interests groups including Community Service Society of New York.

Emily Jane Goodman is a New York State Supreme Court Justice

Trying -- Again -- to Change the Drug Laws

Trying Again to Change The Drug laws
Photo (c) >Sahu. Used with permission.

For decades, activists have pressed leaders in New York State to repeal laws that mandate long sentences for drug offenders. The legislature has made some changes to the so-called Rockefeller drug laws, but advocates have considered those efforts half-hearted. Now, with a new Democratic majority in the state Senate, advocates say the time is right for a large-scale overhaul, if not total repeal of the laws.

These advocates have powerful allies. Gov. David Paterson took up the issue in his State of the State message, and Assembly Speaker Sheldon Silver has issued a position paper calling for a major overhaul

"We are feeling extremely confident" about the prospect of enacting Rockefeller reform this year, said Gabriel Sayegh of the Drug Policy Alliance. Then he hedged, "Well, cautiously optimistic.

Senate Democrats, the people who are supposed to make major changes possible this year, have yet to take a firm stand on the issue, and a recent report by the State Commission on Sentencing Reform does not endorse a full overhaul but instead calls for smaller changes to the drug laws.

Where They Stand

Since their enactment in 1973, the Rockefeller drug laws have mandated minimum sentences for drug offenses based strictly on the amount of narcotics involved in the case. They do not take into consideration circumstances such as whether this is the offender's first arrest, and they do not consider the defendant's standing in their community. Before the 2004 Drug Law Reform Act, convictions for carrying four ounces -- or selling two -- of cocaine or heroin could require the same sentence as a murder conviction. The laws were designed to punish "king pin" drug dealers but tend to punish addicts and users.

"Few initiatives have failed as badly and for as long as the Rockefeller Drug Laws," Paterson said in his State of the State address.

The laws have been tweaked, but according to Paterson and others still do not give judges enough discretion when it comes to sentencing. This year the push is to completely restore judges' discretion. Silver's position paper for example, effectively agreed with critics who say the laws are oppressive, judges should be allowed to sentence at their discretion, and drug addiction should be treated not as a crime but as a public health issue.

The Senate, though, remains the obstacle to adopting such changes. The Republicans, who blocked such initiatives in the past, are gone, and the newly empowered Democrats are dragging their feet. Depending on whom you listen to, that could be because they are still finding their bearings and getting organized, or because, faced with an extremely narrow majority and some conservative Democrats whose support he needs, Senate Majority Leader Malcolm Smith will not take a hard stand on the issue.

According to Assemblymember Jeffrion Aubry, who has been a staunch supporter of Rockefeller reform for over a decade, "The Senate is still finding its way. They have had no lead time to take over the majority, and with such a thin majority they are going to take it issue by issue."

The Rockefeller drug laws and mandatory minimum sentencing do have some adamant -- and influential -- supporters, including the states' district attorneys. A number of district attorneys and "tough on crime" legislators feel that the laws give them more tools to ensure that offenders are equally punished. Some believe harsh penalties will discourage dealers or users.

Lately the York State District Attorney's Association has supported revamping the laws to some extent. Instead of full repeal, representatives of the association have advocated reviewing each sentencing guideline to determine if it is fair. This could reduce harsh sentences in some cases but would not allow judges to consider special or extenuating circumstances. And it would not move drug treatment out of the hands of the criminal justice system.

Ironically one of the harshest critics of the Rockefeller drug laws is a district attorney -- Albany D.A. David Soares, who was elected on an anti-Rockefeller platform in 2004. Soares defeated incumbent Paul Clyne who supported mandatory minimum sentences.

Soares has come under criticism from the local law enforcement community for his stance. Since taking office, Sayegh said, Soares has been "stymied because of lack of support." For example, Sayegh said, Soares has found it difficult to increase treatment programs in Albany County because he cannot secure the funding he needs from the County Legislature.

In the Legislature

As with most issues, the key to changing the Rockefeller drug laws rests in working out details of a new law and getting enough people in both houses to support it.

Sen. Eric Schneiderman, a strong critic of the Rockefeller drug laws, said he is "quite optimistic" that reform legislation will pass both houses this year, but he offered some caveats. "The dilemma with this issue is people claim they are for it, but when you get specific, that's when the trouble starts," he said. "The Senate needs 32 votes and we only have 32 Democratic votes. There may be some Republicans who would vote for this, but not a lot."

Some pundits have argued that Silver's very public push for Rockefeller drug-law reform is intended to goad the Senate into action. But Aubry said he thinks Silver's fervor is giving the Senate Democrats some "cover" to get their positions in order while the Assembly crafts the legislation. Aubry also noted that the state's dire budget will likely take precedence over other issues for some time.

The Sales Pitch

In their very public statements about Rockefeller reform both Paterson and Silver have indicated they believe the laws should be changed that so that drug offenders can be treated for their addictions rather than put in jail. Whatever the other merits of this argument, it now has a financial dimension: Sentence fewer drug offenders and the state will save money and perhaps even be able to close some prisons.

Caitlin Dunklee of the Drop the Rock Campaign pointed to a study by the Legal Action Center that indicated that wide-ranging reform -- fully restoring judges' discretion in all drug cases and greatly expanding alternative sentencing programs to provide treatment rather than prison -- would save the state almost $268 million a year. The study took into account the effect of sending addicted individuals to community treatment programs rather than prison and maintained that would drastically reduce repeat offenses.

However, legislators and advocates note that this savings could be slow to materialize since money would have to be spent to create the alternative treatment programs. "You have to invest to save money," said Aubry. "We have to have the treatment slots for these people, and the budget is going the wrong way on treatment."

Last year, the state cut $8.6 million in contracts for groups that provide drug counseling and treatment to former convicts. Aubry said that pro-reform legislators and advocates need to demonstrate that a modest investment in treatment services will provide a major return in savings on prison cells down the road.

Harry K. Wexler of the National Development and Research Institutes said drug treatment reduces recidivism rates by actually helping addicts address their addiction. "A lot of these people don't belong in prison," said Wexler. "In some cases prison just makes their case worse."

A Commission Weighs In

Paterson, in his State of the State address, said he would review recommendations from the New York State Commission on Sentencing Reform in considering how to change the Rockefeller drug laws. That sent chills down advocates' spines. Those supporting changes in the laws sharply criticized the commission's preliminary report. "The ways it took up Rockefeller were really awful," Sayegh said. "It is almost as if they gave the prosecutors' association the pen."

The commission's final report was released this week and immediately derided by advocates across the state for not recommending drastic revisions to the drug law.

Terry O'Neill, an Albany based public relations consultant known for his poetic commentary about goings on at the Capitol put it this way:

"Spitzer did what pols will do -- empaneled a commission,
Hired Denise O'Donnell and handed her the mission.
Two years went by of hearings, colloquies and chats
Where all the experts hobbed and nobbed with all the bureaucrats.
After all this effort, the report is out at last.
Sorry that reform is going nowhere soon or fast.
Denise and friends for all they met and saw and heard and talked
Decided in the end to leave the boat as is -- unrocked."

While the report discusses the need for more alternative treatment, Sayegh said that it sets up too many "hoops" for defendants to jump through to get that treatment and leaves most of the discretion in the hands of prosecutors, not judges.

Silver's office released a scathing letter calling the report a "missed opportunity." Smith's office however released a statement describing the report as, "an important first step."

The Next Step

For the next few months, advocates will spend time courting senators. Dunklee said that Drop the Rock hopes to deliver a petition to the Capitol on March 10. The group needs 13,000 more signatures to reach it goal of 35,000.

Dunklee said that Drop the Rock plans to lobby "tough on crime" Democrats in the Senate, as well as some Senate Republicans they feel might support the bill: "We are going to tell them, 'Rockefeller reform is going to pass. You can be on board or not.'"

One legislator who preferred to remain anonymous said that, as usual, advocates will push for complete repeal of the drug laws and the Democrats will come up with something less than that, a compromise they feel is politically feasible.

Sayegh, though, thinks a complete overhaul of the laws is inevitable. "New York has led the country with the most oppressive sentencing standards on drugs for years," said Sayegh. "Now if we take this turn and approach drug addiction as a public health problem and end the war on drugs, New York can set a new example for the nation to follow."

Protection for Abuse Victims

Metro North Owners LLC v Sonya Thorpe appears, at first, to be a typical New York City landlord-tenant case. But it has resulted in an atypical dismissal of the eviction proceeding in New York City Housing Court.

Metro North Owners LLC, the landlord of 420 East 102nd Street in Manhattan, had charged the tenant, Sonya Thorpe, who receives federal rent subsidizes under the federal Section 8 housing program, with violating her lease and so sought to remove her as a nuisance. The "nuisance" involved an alleged stabbing in the building in April 2008.

The tenant's lawyer, Gretchen Gonzalez of the Legal Aid Society, moved to dismiss the case without a trial or any testimony, arguing that there were no questions of fact to be resolved at a trial and that the law required dismissal of the eviction proceedings at the pretrial stage. Under the federal Violence Against Women Act, a victim of domestic violence cannot be evicted from public housing or government assisted tenancies on the basis of the violence against her. In other words, Congress intended that a person should not be punished ñ evicted ñ for being victimized by a member of her family, household or someone with whom she has an intimate relationship.

An Abusive Relationship

Gonzalez asked the court to consider the entire history of Thorpe's relationship and the domestic violence perpetrated against her by John Capers, variously referred to as her husband or boyfriend. In addition to Thorpe's own affidavit, detailing the relationship and pattern of assaults, her case cited police complaints she made against Capers in 2006 and 2007 and a prior order of protection prohibiting him from approaching, threatening or harming her.

Her affidavit gave this account which the judge accepted: "An intoxicated and disheveled Capers arrived at her apartment and, despite her telling him to leave, forced his way into her apartment and assaulted her. During the assault, Capers threw respondent into a bathroom cabinet, causing glass to shatter on both of them, and Capers injured himself on the glass."

To further establish that Thorpe was not the aggressor and had not stabbed Capers, but was the victim of domestic violence, her counsel also submitted documentary evidence that the district attorney had declined to prosecute her in connection with the alleged stabbing.

Still, the landlord introduced an affidavit from the property manager of the 102nd Street building, charging that Thorpe "stabbed Capers," that she allowed him into the building, and that the violent behavior put other residents at risk.

Housing Court Judge Gerald Lebovits dismissed that affidavit as well as a report from a security guard as inadmissible evidence. Both, he found, were based on hearsay statements containing information about which they had no personal knowledge and which were unsubstantiated by, for example, affidavits from neighbors or other eyewitnesses. Neither the manager nor guard had witnessed the April incident or knew anything about it except what other, unidentified people told them.

"Nowhere in Velette's [the manager] affidavit or in petitioner's opposing papers as a whole is any evidence that the prior disputes were the fault of or initiated by respondent," Lebovits wrote. With no evidence, he continued, Metro North Owners "ultimately bases all its allegations that respondent is a nuisance and a threat to the tenants of the subject premises on inadmissible hearsay and prior, ambiguous, unspecific, undated acts."

However, the judge noted that even if he found those submissions legally admissible, which he did not, he would nevertheless have ordered the proceeding dismissed since the landlord still would not have overcome the tenant's evidence that she was a victim of domestic violence, that the incident arose from domestic violence and that she therefore was protected by the Violence Against Women Act.

Patterns of Violence

In dismissing the case, Lebovits cited scholarly journals, and referred to the "battered woman syndrome," which has been used as a defense in homicide cases when the accused is a victim of domestic violence who has killed her assailant. Borrowing the language of an appellate criminal case, he described the syndrome as "a series of common characteristics found in women who are abused both physically and emotionally by the dominant male figures in their lives over a prolonged length of time."

Thorpe's seemingly "inconsistent behavior toward Capers, in having any contact with him, even if true, the judge wrote, characterizes a battered woman."

Dorchen Leidhodt, director of Sanctuary for Families' Center for Battered Women's Legal Services, said, "We have encountered a number of cases like this one in which landlords have attempted to evict domestic violence victims on the theory that the violence perpetrated against them constituted a violation of the terms of the lease, in effect holding the victim responsible for the violence committed against her and intensifying the instability and economic hardship in her and her children's lives. The sophisticated understanding of the dynamics of domestic violence and of victims' psychology reflected in Judge Lebovits' decision is rarely seen outside of the context of criminal law."

Once Lebovits found that the landlord had failed to raise enough doubts about whether respondent was a victim or aggressor to go to trial, he concluded, "The court finds that respondent was a victim of domestic violence. As such, the Violence Against Women Act forbids petitioner to terminate respondent's Section 8 tenancy."

The landlord was represented by Gutman, Mintz, Baker & Sonnenfeldt, P.C. According to Neil Sonnenfeldt the client has not decided whether to appeal. When asked about the law in this case, he declined to discuss it and hung up the phone.

Emily Jane Goodman is a New York State Supreme Court Justice

Going Beyond the Maximum in a Gun Case

Photo (cc) Josh Mason

The United States Court of Appeals in New York has upheld the sentence imposed by a federal judge although it was stiffer than the guidelines recommended for the weapons conviction. The judge said the punishment was warranted as an enhanced deterrent to illegal weapons in urban areas. While federal judges are no longer bound by mandatory sentencing guidelines and have some discretion in sentencing, in United States v Cavera (in pdf), the court imposed a harsher sentence, focusing on where the crime took place and where the fruits of the crime were going.

The case involved trafficking in weapons in order to bring guns into New York City. When the defendant, Gerard Cavera, pled guilty in the U.S. District Court in Brooklyn in 2005 to conspiracy to deal in and transport firearms, he could have been sentenced to 12 to 18 months in prison and a fine of between $3,000 and $5,000. However, in a detailed decision, the sentencing judge, Charles Sifton, increased the sentence to two years in prison and a $60,000 fine. (If Cavera had faced similar New York State charges, he would have faced a far more severe punishment -- 15 years in prison.)

Federal guidelines are advisory and are meant to create some uniformity in all federal districts around the country. Sifton determined that exceeding the recommended sentence was appropriate in this case because of the damage inflicted by guns in urban areas, such as New York. A stiffer sentence, he said, was intended to "deter gun trafficking into the large metropolitan areas of this country" where homicide rates are greater and the sale of illegal weapons more profitable than in the nation as a whole.

In an unusual procedure, the entire Court of Appeals heard arguments. The judges upheld Sifton's rationale that, since deterrence was the goal, he could consider deterrence in a particular location. For a judge to do this, he or she must address the nature of the offense and the history of the defendant; the need for the sentence to reflect the seriousness of the crime, provide punishment and afford adequate deterrence; and the necessity to protect the public.

Crime in a Crowded Place

Cavera and others had worked with a person who they did not realize was an informant to sell and transport guns to New York from Florida in 2003. There were approximately two dozen handguns at a price of $16,600, all expected to be sold by other individuals on the streets of New York.

"Firearms," Sifton noted, "smuggled into New York City commonly end up in the hands of those who could not otherwise legally acquire them, are frequently used for illegitimate purposes, and have the potential to create a substantially greater degree of harm when in an urban environment such as New York City than in the United States generally." He observed that the population density of Brooklyn, the area covered by the court, exceeds 35,000 per square mile, compared with 78 for the rest of the country. "New York City is the most densely populated urban area of the country," the judge said, and so at greater risk of harm due to the presence of illegal guns.

It followed, then, that "stiffer sentences for gun traffickers who move their wares into large metropolitan areas are also supported by the purpose of gun trafficking laws, which is to prevent lax firearm laws in one state for undermining the more restrictive laws of other states," Sifton said. Despite that, the judge noted, "In states with strict gun control laws, such as New York, a higher percentage of guns used in crimes arrived from out of state."

The federal sentencing guidelines, in Sifton's view, do "not reflect objective variations in the increased risk of death or injury that the offense creates in different parts of the country." Instead, he said, the federal firearm laws is geared to more rural parts of the country where guns are commonly used for recreation and are less likely to kill or injure people than they are in this city. With that in mind, Sifton said, this case called for a tougher sentence.

Emily Jane Goodman is a New York State Supreme Court Justice 

Looking Ahead to the New Year


Who would have guessed that our former governor would be caught up in a prostitution scandal or that Wall Street would have crumbled so dramatically?

The prominent New Yorkers we asked to predict what 2008 would bring certainly didn't. They saw the state's junior senator as president, not as secretary of state. They thought we would have congestion pricing.

U.S. Rep. Charles Rangel predicted we would invest in affordable housing -- not that he would be at the center of a housing scandal.

Knowing that sometimes people swing blindly the first time, we here at Gotham Gazette decided to give them another chance.

This year, some think the economy will recover, the mayor's race will be competitive and the state will bail out our transit system. See what some New Yorkers think is in store for 2009.

Gotham Gazette image by Ya-Hsuan Huang

City Councilmember Simcha Felder

The mayor and the City Council put a hiring freeze on new elected officials.

Randi Weingarten, president, United Federation of Teachers

Schools Chancellor Joel Klein will teach a class at the UFT Secondary Charter School and become a key advocate for teacher due process (tenure) and lowering class size.

Mayor Michael Bloomberg will abandon his bid for a third term and instead take over the New York Stock Exchange, where he will implement accountability and data initiatives. Traders and hedge fund managers form a union.

The debate over whether to continue mayoral control of New York City schools will come down to a final-hours coin flip on State Street.

Gov. David Paterson will appear on Saturday Night Live, and realizing his true calling, join the cast.

And in all seriousness, the Administration for Children's Services will pay 28,000 home day care providers the money they are owed by state law.

President-elect Barack Obama and new Education Secretary Arne Duncan will work collaboratively with teachers and their unions, and as a result begin to make substantial progress in advancing student achievement. Their philosophy will show naysayers that successful education reform is done with teachers, not done to teachers.

In the midst of this challenging time, New Yorkers are resilient and charitable. This is the time to work together and fight for educational opportunity for our students and economic security for all New Yorkers.

Azi Paybarah, reporter, New York Observer

Michael Bloomberg announces unpopular budget cuts, but spends lavishly on his campaign.

Bill Thompson and Anthony Weiner complain about Bloomberg's budget cuts and lavish campaign spending.

Democrats for Bloomberg make an earlier than expected appearance. David Paterson doesn't officially join that group, but reporters suspect he's a card-carrying member.

Paychex Founder Tom Golisano holds secret meetings with everyone running for mayor; "aides to Golisano" confirm the meetings but don't share any details. Then, Golisano holds a press conference and gets some ink from New York City reporters about his thoughts on the mayor's race, before disappearing upstate.

Golisano then toys with the idea of buying all those media outlets that didn't cover him.

Kevin Sheekey leaves City Hall for Bloomberg's campaign, makes a lot of money and doesn't return.

State Sen. Jeff Klein gets photographed measuring the curtains inside Malcolm Smith's office.

Newspaper publishers apply for a federal bailout.

Twitter becomes so popular that it's no longer cool.

Norman Siegel and Mark Green have a series of historic debates about who truly represents New York's liberal left.

David Weprin sports a pocket protector to bolster his image as a fiscal expert.

Whoever Paterson doesn't pick for the U.S. Senate starts getting talked about as possible gubernatorial candidates.

And Gotham Gazette gets Drudged for its policy-focused interview with Eliot Spitzer, which starts off with the phrase, "If I didn't get caught, I would have told Shelly Silver..."

Debora Spar, president, Barnard College

New York public schools and civic organizations see a flood of hugely qualified job applicants, as newly minted graduates decide that maybe Wall Street isn't the career for them.

The jobs that do remain in finance and the regulatory sector are increasingly filled by women. Big bets decline, as do massive bonuses. But actual scrutiny of transactions increases.

Overcome by schadenfreude, New Yorkers at last learn how to spell it.

Gotham Gazette image by Ya-Hsuan Huang

Brian Lehrer, The Brian Lehrer Show, WNYC

2009 in New York turns out better than anyone expects as I write this on Dec. 13, 2008. At least, people will look back on it that way years from now.

While 200,000-plus jobs are lost statewide, and wrenching decisions are made about tax hikes and service cuts, New York remembers that there's more to economic life than Wall Street. And we discover that Wall Street still has a pulse to boot. The insane bonuses and leverage ratios are gone, but finance is finance and those people will always find ways to make money. New York is still the trophy address to have to compete with London and Tokyo etc. for world-class investment. It is not the year of the Charlotte Stock Exchange. Let's just hope they don't try to securitize zero percent interest Treasury bills!

We remember that other sectors of the economy also really matter around here: higher education and medicine, for example. Boston has nothing on us as an economy driven by smarts.

We have tourism too, plus the arts and entertainment, technology, and exports and imports of all imaginable kinds. Immigration remains a special economic gift to New York as immigrants continue to expand import-export entrepreneurship and decentralized financial networks. Remember why finance took hold here in the first place – New York was an international hub of commerce. It still is.

The credit squeeze slowly eases in 2009. With that and no-interest loans, the dollar remains stable but low, and international tourists flock once again to NY.

Our new U.S. senator, Shirley Jackson, builds visibility for our existing technology sector and helps secure federal funding for a Hudson Valley R&D corridor extending from Manhattan to Troy. And, of course, New York still captures the imagination of ambitious creative people from everywhere else. Whatever decline in real estate values we endure will have the silver lining of sustaining large scale immigration, and making bohemia possible again. Bohemia, like immigration, fuels innovation and long-term value in the housing market.

Anthony Weiner will win the Democratic mayoral nomination as the candidate from the angry middle class. Mayor Bloomberg, running as an independent, also secures the Republican nomination. The winner in November will be determined by the state of the economy and populist anger at the mayor. If he is seen as deftly managing the recession and building for the future, he will win, and Weiner will look like a whiner. If he is seen as raising taxes and cutting services while being tone deaf to people's pain, he'll become "that billionaire" and he will lose.

Similarly, President Obama's change we can believe in will be judged by how much his stimulus package is spent on real innovation and real infrastructure building. 2009 will tell. Weatherizing federal office buildings may give people work, but it won't spur the next generation of economic growth.

The Ravitch Commission's recommendations will be adopted almost unchanged and the city will be grateful for the next 30 years as world-class mass transit infrastructure development attracts sustained private sector economic growth.

On the down side, AJ Burnett and CC Sabathia will both get injured. The new Yankee Stadium will have many gold-plated empty seats. After Citigroup files for Chapter 11, Citi Field will change its name to Debits Field, pleasing Dodger fans of a certain age.

Bernie Madoff and Marc Dreier will both find religion in prison, and vow to devote their lives to helping others. Michael Milken will consult.

Donald Trump will change his name to Chrysler and ask for a federal bailout.

David Letterman will move his show to 9pm.

Doug Muzzio, professor, Baruch College

In a political stunner, capo di tutti capi of New York City politics Mike "Nine Zeroes" Bloomberg is denied a third term, even after spending $100 million plus, making many offers that couldn't be refused but ultimately were, by a majority of NYC voters.

Michael Miscione, the Manhattan borough historian

New Yorkers’ disinterest in history will reach new heights in 2009.

After months of media claims that "we are in the worst economic downturn since the Great Depression,” economists will realize that most people have no idea what the Great Depression is. The New York Times will conduct a survey that will find that 91 percent of New Yorkers think it was “when everyone was sad because they hadn’t invented Prozac yet.”

2009 will mark the 400th anniversary of the arrival of Henry Hudson, an English explorer who sailed for the Dutch. Hudson traveled up the river that would one day bear his name in a ship called the Half Moon. Again, New Yorkers will be baffled. Another Times survey will find that most Gotham residents will define the Half Moon as a “wardrobe malfunction caused by low-rise blue jeans.”

The Manhattan and Queensboro Bridges turn 100 in 2009. Keeping with the recent trend of renaming our bridges for historically inappropriate persons, the Manhattan Bridge will be rechristened the Senator Caroline Kennedy Bridge, and the Queensboro will be renamed for a Kennedy to be named later. Defenders of the change will invoke the Sarah Palin rationale, claiming that Caroline deserves the honor because she can see the bridge from her penthouse window (with binoculars). The name changes will utterly devastate Brooklyn Borough President Marty Markowitz because his attempts to rename the spans Brooklyn Bridge 2 and Brooklyn Bridge 3 will go ignored.

City Councilmember Letitia James

Atlantic Yards will not be built.

Julia Vitullo-Martin, senior fellow, the Manhattan Institute

We've made it to the end of the year, and our city is still standing. For that, we should be grateful. On the other hand, we're a bit like the man falling off the Empire State Building who, on passing the 22nd floor, says to himself, "so far, so good."

We're in a downward spiral, hoping that we're somehow going to have a happy ending. But we haven't yet crashed to the ground in part because, as the New York Building Congress pointed out in mid-October, momentum from New York's historic 2003-2008 building boom has continued to drive up some residential and nonresidential construction.

The city looks a little bit better off than it actually is. Major projects all over New York are slowing or stopping altogether. The most mesmerizing are the highly subsidized, politically favored, allegedly private sector projects, for which Atlantic Yards is the poster child. Forest City Ratner has halted work and laid off staff while asking for even more government subsidy. Will our elected officials really have the gall to raise our already excessively high taxes while directing hundreds of millions of dollars more into Bruce Ratner's sink hole in downtown Brooklyn?

Let's hope that 2009 becomes the year in which corporate socialism, and its bloated projects, is ended in New York once and for all.

Charles Geisst, professor of finance, Manhattan College

2009 is not shaping up to be a good year. Last year at this time there was no consensus about a recession. What a difference a few months make.

The current recession will last well into next year and beyond, and it will unfortunately prove to be the worst economic crisis since the Great Depression.

Cutbacks can be expected in all city services since so much wealth has been destroyed in the markets and with it, tax revenues. On the brighter side, the first years of the Depression coincided with the last years of Prohibition, but there was no shortage of cheer to go around in New York. Speakeasies then outnumbered grocery stores in some parts of the city.

New York City Comptroller William Thompson Jr.

2009 will be one of the most challenging years for New Yorkers in recent memory.

Struggling families and businesses throughout the city will feel the continued squeeze of a shrinking economy, growing job losses, ever-tightening credit, and the persistent threat of home foreclosures.

To respond to these challenges, I predict New Yorkers will demand new leadership that will change the way business is done in our city – fewer give-a-ways to the rich and more protections for hardworking families and small businesses. With strong leadership and a collective spirit, New York City will bounce back as it has done before and show its grit, resolve and resiliency.

Gotham Gazette image by Ya-Hsuan Huang

Steve Cohen, executive director, The Earth Institute, Columbia University

Mike Bloomberg will find his reelection campaign does not turn out to be the coronation he was expecting.

The web-based fundraising and communication techniques pioneered by Howard Dean's campaign and perfected by Barack Obama's campaign will be used in the next New York City mayor's race

Subway fares will not go up 25 percent but the real threat is to the long term capital plan for the Metropolitan Transportation Authority. In 2009, we will learn if our political leadership can match the talents and courage of Hugh Carey and Ed Koch, or if we will have the revival of the three guys in a room that got us into this fiscal mess.

By this time next year the media will still be looking for some way to diminish President Obama's stature, but they will not succeed. Our new president will have a tough, but successful year.

The Yankees and Mets will have to find a way to sell tickets to regular New Yorkers or risk losing their fan base. If they are not careful, the new stadiums will reinforce the idea that live major league baseball is not available to the rest of us. Of course we can all watch CC Sabathia and AJ Burnett on HDTV's that just look like real life, and we can just pretend we're at the game.

We will finally have federal policy on global warming here in the United States (I confess, I predicted this for 2008 too).

Columbia and the New School will both recruit new provosts. The one at Columbia will last longer.

We will avoid another great depression and start to climb out of this great recession.

Gene Russianoff, senior attorney, New York Public Interest Research Group and the Straphangers Campaign

The night before the Metropolitan Transportation Authority is set to vote on a whopping fare hike and harsh service cuts in late March, the state legislature will pass a tax package that will soften the blow of an increase and block the worst service cuts. The base subway and bus fare will rise to $2.25 and a 30-day unlimited-ride MetroCard from the current $81 to $89. However, it will take until the late fall for the legislature to enact a new five-year rebuilding program for the transit system.

A federal judge will rule that the council's vote to overrule two referenda votes of the public to limit the terms of city officials violated the First Amendment rights of city voters - and all hell will break loose!

Mayor Bloomberg will participate in the city's landmark campaign finance law and limit his campaign spending to his total spending in the general election to $6 million - not!

The state will permit the transportation authority to toll the East River bridges, but only for vehicles driven by motorists who are visitors from very, very distant galaxies.

Governor Paterson will flirt with the idea of appointing Tina Fey to the U.S. Senate by only if Al Franken is elected as the junior Senator from Minnesota.

Council Speaker Christine Quinn

My prediction for 2009 is that New Yorkers will do what we have always done during times of great difficulty. We will stand up. We will band together.

I predict that we will see a rise in volunteerism. We will see New Yorkers helping neighbors, friends, family, and complete strangers. We will all find ways to do more with less, and to make up in work and passion what we may lack in resources. We will act responsibly today, lest we face even bigger problems down the line.

No one expects New York City to be able to turn things around quickly. But New Yorkers are used to defying expectations.

Kevin Baker, novelist and non-fiction writer, author of the "New York, City of Fire" trilogy

I would say that the one thing we can count on in 2009 would be the growing disparity of wealth in this city. So far, nearly every proposal made by both the governor and the mayor is for more taxes and fees on working- and middle-class New Yorkers to carry us through the new Depression, along with layoffs and pension cuts for public employees. Meanwhile, the wealthy are being asked to contribute almost nothing. This is not only unfair. It also will not work.

Jonathan Bowles, director, Center for an Urban Future

The city's worsening economic problems will be broad-based, but will have a particularly severe impact on the poor and working poor, nonprofits, real estate brokers, black car drivers and owners of cocktail lounges selling $15 saketinis. There will be a modest spike in the number of outer-borough middle class residents who leave the city altogether, prompted by the weak job market, deteriorating subway service, under-performing public schools and higher fares/taxes.

Dozens of bank branches and a handful of national drug store chain stores across the five boroughs will shut their doors, creating at least some new opportunities for independently owned businesses.

Rising commercial vacancy rates and plunging office rents could lead to a wave of start-ups with growth potential in technology and creative fields, similar to how the weak real estate market of the early 1990s helped give rise to Silicon Alley.

The state legislature's eventual response to this economic and fiscal crisis will remind New Yorkers, yet again, that the city has few friends in Albany and that the legislature truly is the most dysfunctional such body in America.

Paul Steely White, executive director, Transportation Alternatives

NYPD Officer Patrick Pogan is convicted of assaulting a cyclist

during a Critical Mass bike ride, and then ordered by the judge to clear bike lanes of placard abusers and double parked cars.

The city, state and Metropolitan Transportation Authority keep the transportation system from collapsing and will actually increase mass transit service. The State Legislature will pass a law to mandate Paris-style bike share integrated into New York City's public transit system with 50,000 bikes and 3,000 stations reclaimed from parking spaces. The catch: they would charge bikers $20/hour and use the revenue to save the MTA.

Gov. Paterson sells Sen. Clinton's seat to George Soros and uses the revenue to save the MTA.

Geoffrey Croft, president, NYC Park Advocates

Mayor Michael Bloomberg and Speaker Christine Quinn will hold a joint press conference to apologize for misleading statements made during the term-limits debate: Both had repeatedly insisted the public could actually choose not to re-elect them in November. They acknowledge that out in the last 107 City Council races, 98 percent of the incumbents were reappointed. They admit council members have only a slightly less chance of returning to office than former Iraqi dictator Saddam Hussein did during his last re-election bid. (He garnered 101 percent of the vote.)

For the first time in more than four decades, elected officials will abide by the City Charter and begin to allocate adequate expense dollars to maintain, secure and program parks.

The Bloomberg administration will apologize for installing more than 100 million pounds of chemically laden recycled tires in our parks and schools and realize natural grass is good for the environment.

The city will voluntarily agree to test all materials installed in playgrounds for heat before they burn more children.

Mayor Bloomberg will initiate community-based planning and consultation for all park projects. He agrees to send out $400 rebate checks to victims of poor park policies. The program will be suspended 24 minutes later after 311 is overwhelmed by calls from residents living near the new Yankee Stadium, the Van Cortlandt Park water filtration plant, Washington Square, the Ridgewood Reservoir, Randall's Island, Union Square, the planned Brooklyn Bridge Park and others. The mayor will respond, "Don't they know we're experiencing the golden age of parks?"

The New York Yankees will give back their city financing and admit the new stadium places an undue burden on taxpayers.

After being visited by the Ghost of Christmas Future, all 29 Council members who voted to ignore two voter referendums on term limits will have a sudden change of heart and not seek re-election. Bloomberg holds out. Tipped off about the coming visitation, he posts extra security at his Upper East Side townhouse and prevents entry. However, the next day -- after receiving a note left by the spirit saying he would return soon -- the mayor agrees to participate in the city's campaign finance program.

Randy Cohen, The Ethicist, New York Times

Mayor reads fine print, discovers it is Central Park not Central Parking Lot, bans cars from Olmstead jewel. "If you want to run over a jogger or knock down a child, do it on Queens Boulevard like everybody else."

Patti Lupone leaps from stage, savagely pummels audience member texting during final number of final performance of Gypsy. Although the incident is witnessed by a packed house, Lupone is acquitted and carried from courtroom on shoulders of cheering theater-fans.

City to fund solid gold caps for Yankees and Mets. "We can't do enough for these tobacco-spitting millionaires," says the mayor. "It was this, or squander the money on schools and subways."

Times Square B.I.D. marks 100th Ped-lock day of the year as Ohio family is carried seven blocks, pressed between bodies of strangers. "Our feet never touched the ground! Can we go again?"

Deepening its commitment to public-private partnerships, the city opens bidding for corporate logos to be tattooed on foreheads of teachers, police and firefighters.

Public restrooms finally appear on Manhattan streets. No, wait, hang on… no, they don't.


A President's New York Prosecutors

The two top federal prosecutors in New York City soon may be pondering their next career moves, especially if voters put a Democrat in the White House. If tradition holds, the incoming administration will replace most of the nation's U. S. attorneys, who are political appointees, with those of its own choosing. And with the Justice Department still reeling from allegations of improper hirings and firings under the Bush administration, critics say it may be time to reconsider how the head prosecutors are selected.


The U. S. attorneys in New York City are Michael J. Garcia in the Southern District, which includes Manhattan, The Bronx and Dutchess, Rockland, Orange, Putman, Sullivan and Westchester counties, and Benton Campbell in the Eastern District, which includes Brooklyn, Queens, Staten Island, and Suffolk and Nassau counties. They are two of the Justice Department's 93 chief federal prosecutors.

Garcia, appointed by President George W. Bush, took the helm in 2005 after serving as head of Immigration and Customs Enforcement for the Department of Homeland Security. Campbell, a former assistant deputy attorney general, was appointed U. S. attorney for the Eastern District about a year ago. Both men had extensive experience as federal prosecutors in their districts before their appointments.

Party Politics

U. S. attorneys prosecute criminal cases like racketeering, bank fraud and terrorism, and represent the United States in civil suits. They oversee sometimes large staffs of assistant U. S. attorneys, so-called "career prosecutors"-- civil servants who are not affected by a change in the administration. In contrast, the U. S. attorneys are appointed by the president, serve at the president's discretion, and generally leave when the president does.

"You know when you take the job that it's a political appointment and there will be an end to it," said Mary Jo White, a former U. S. attorney for the Southern District who is now in private practice in New York. Usually the incoming administration allows several months for an orderly transition, White said, in order to minimize disruption to ongoing cases.

But not always. When Bill Clinton was elected, he reportedly sent word that the U. S attorneys were expected to resign "immediately or as soon as they could." White, who was appointed by George H. W. Bush, was one of the exceptions. The new administration asked her to stay on for another year because she had hands-on involvement in the prosecution of some high-profile terrorism cases, including those arising from the bombings of the U. S. embassies in East Africa.

Politics plays an essential role in the appointment of a U. S attorney. Traditionally, a candidate is first recommended by that person's home-state senior senator-if the senator belongs to the president's political party. If both senators from that state are from the opposition party, the choice falls to the senior state official of the president's party. Once the White House approves the candidate and makes the official nomination, the same home-state senator plays a key role in securing Senate confirmation.

In 2005, it fell to Gov. George Pataki, a Republican, to recommend Garcia for the Southern District post, because there was no Republican senator from New York. The Senate then confirmed Garcia. In the Eastern District, the Justice Department appointed Campbell on an interim basis, and he was later sworn in as U. S. Attorney, although Senate confirmation is still pending.

The appointment system has come under fire several times in the last half-century. State and local bar associations sometimes raise an outcry about a particular nomination, when they view the candidate as unqualified due to a lack of experience. More recently, it was revealed that the Bush White House had routinely screened candidates to see if they had political ideologies in line with the administration's policies. And last year, a congressional probe found that partisan politics fueled the firings of nine U. S. attorneys in 2006. Attorney General Michael Mukasey appointed a special prosecutor in Septembre to look into whether there was any criminal behavior in the firings.

A Merit System?

"There's a morale issue in the U. S. attorneys' offices," said Timothy J. Heaphy, a former assistant U. S. attorney in the District of Columbia and Western Virginia. "The politicization has discouraged the people who work there." In an October essay in Legal Times, Heaphy called for another look at a merit-based selection system to "help remove the taint of politicization and restore Justice's reputation for independence."

Merit selection was first proposed by then-presidential candidate Jimmy Carter in 1976. Under the plan, each state would have an independent nominating commission to solicit, screen and recommend applicants to the home-state senator based on the candidate's qualifications rather than political connections.

"Carter couldn't really sell that," Heaphy said. "The Senate predictably didn't want to give up their almost exclusive power to appoint those people." Now, however, with the Justice Department operating under a cloud of suspicion, Heaphy says the time may be right for a renewed discussion about reform.

The New York Offices

Even without a merit selection system, the U.S. attorney's offices in New York City have a reputation for being largely above the taint of political patronage and favoritism. Many of the cases tried by federal prosecutors in Manhattan and Brooklyn have made headlines-if not history. Alger Hiss and Julius and Ethel Rosenberg were tried in the Southern District, as were Ivan Boesky, Michael Milkin, Martha Stewart and many mob bosses. The Eastern District office was responsible for convicting John Gotti, as well as defendants in the Abscam political corruption case, the Zakharov spy case and the Abner Louima police torture case.

Of the two offices, the Southern District is larger, with around 220 attorneys compared with about 160 in the Eastern District. A white-collar criminal defense attorney in New York, Marc Mukasey, calls the Southern District "the best of the best."

"It's the Top Gun school for federal prosecutors," said Mukasey, a former assistant U.S. attorney and the son of Attorney General Michael Mukasey. "It's the busiest office, with the greatest tradition, the highest standards, and it takes in the most demanding work."

"The Southern district continues to be one of the most important federal U. S. attorney's office in the United States," said Otto Obermaier, who headed the office from 1989 to1993 under President George H. W. Bush. In addition to the large volume of high profile cases, he said, the district has historically been able to attract a wealth of legal talent. Manhattan federal prosecutors have gone on to become federal judges, secretaries of state, and even mayor of New York City. Two assistant U. S. attorneys - Felix Frankfurter and John Marshall Harlan II--became justices of the U.S. Supreme Court.

"It has always had exceptionally talented people. While the U.S. attorney can be and often is a political appointment, the tradition of the office itself compels the appointment of extremely talented assistants." Obermaier said. "Being U.S. attorney in the Southern district is kind of like being the musical director to the New York Philharmonic. It's great you can get up there and wave the baton around, but it helps to have extraordinarily talented musicians."


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