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Why We Need a Comprehensive City Plan Now


first lady chirlane opening dev

(photo: Michael Appleton/Mayoral Photography Office)


New York City’s housing crisis is getting worse. While a significant number of luxury units sit vacant, the population of homeless children is growing, we have only a 1% vacancy rate in public housing, and more than half of New Yorkers spend over a third of their income on housing. We have a serious problem on our hands.

According to basic economics, the solution to demand exceeding supply is an increase in supply. A scarcity of units causes prices to rise; the most effective way to ease this upward pressure on rents is to build more, and to do so quickly. New residential units start a “migration chain” that filters down to lower income brackets, as well; the benefits of new construction filter down the property ladder even if the new construction is a luxury high-rise. Development alone is not enough -- we need to incentivize the creation of affordable units and provide low-income families with additional assistance -- but unless we build more, we have no hope of making housing more affordable in New York City.

And yet, we are struggling to build. According to Mayor de Blasio’s “Where We Live Now” plan, there were 163,000 new housing units built in the 2010s, down from 198,000 the decade before. Even the 1930s saw greater production of new housing.

Though conceptually, most people would agree that to fix our shortage we need to build new units, in reality most people don’t want new construction on their streets. Resistance to new development comes from a variety of different fears. Though blocked views, loud construction, and overcrowded trains are easy to dismiss as NIMBYism, other concerns are more nuanced. New development can change neighborhood character, and many communities fear that it can accelerate gentrification and displacement (though research contradicts this claim).

Despite these objections, we need to build more housing. Currently, it seems like any proposal, no matter how small, encounters fierce opposition. We should be mindful of how development will impact our diverse neighborhoods, but protestors and anti-development activists should consider the counter-factual: What will happen to our city if there is no development at all?

The build-but-not-here phenomenon we are experiencing in New York City is a classic collective action problem. In many cases, it is rational for people to want to keep new construction out of their neighborhoods. But when we take an individual’s rational decision and expand it to an entire city, we run into trouble. When all of New York City says “no” to new development, where does that leave us?

Currently, development proposals feel haphazard and uncoordinated, but we can start to break the stalemate with a comprehensive city plan, which is in the City Council’s legislative pipeline. Led by Council Speaker Corey Johnson and Council Members Brad Lander and Antonio Reynoso, the comprehensive plan would sketch out a long-term plan for rezoning, development, and land use decisions within the five boroughs.

The New York City Council attempted to introduce a comprehensive city plan as part of the 2019 Charter Revision Commission. The 2019 proposal, which failed to be put to voters, observed that for other major cities across the globe, comprehensive plans serve “as the basis for land use, zoning, and capital planning decisions.” New York City struggles to reach consensus on any of these issues, leading to stalled projects and, ultimately, skyrocketing rents.

Critics of a comprehensive city plan decry it as a toothless document and futile effort. They compare it to existing “fair share criteria,” a set of guidelines to help New York City place public facilities in a thoughtful, equitable way. Though well-intentioned, the criteria have made little difference in how city government actually allocates facilities.

Whether or not a comprehensive city plan changes patterns of development in New York City, though, at the very least such a plan will make new development projects feel more coherent. Currently, New Yorkers struggle to see how the buildings proposed for their neighborhoods fit into a broader effort to make housing more affordable. When proposals feel like one-off projects, they are easy to dismiss. After all, it is true that one building will not make a meaningful difference to the number of units we have on the market.

If, however, each proposed building is part of a clear plan to make New York City more affordable for everyone, opposition to development may become less venomous. True, a comprehensive city plan will not solve our housing affordability issues or eliminate disagreement entirely. Tensions surrounding gentrification and displacement will remain, and NIMBYism will continue. But at the very least, New Yorkers will be able to see how each new development connects to a larger plan. A citywide planning framework will not fix everything, but it is a good place to start.

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Benjamin Heller is a graduate student at NYU’s Robert F Wagner School of Public Service. On Twitter @BenjaminHeller0.

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5 Steps to Properly Combat Housing Discrimination in New York


court water board

(photo: Edwin J. Torres/ Mayoral Photography Office)


The landmark report on housing discrimination on Long Island recently published by Newsday requires action by government and the real estate industry in the region but also in Albany and statewide. The rampant discrimination revealed is not limited to Long Island and displays a dramatic failure by New York State government that must be corrected.

Newsday’s three-year investigation of real estate sales practices on Long Island – titled “Long Island Divided” – involved paired testers (one white, the other “of color”) and revealed widespread separate and unequal treatment of potential homebuyers who were black, Hispanic, and Asian, and of other minority communities. Black testers experienced disparate treatment 49 percent of the time, compared with 39 percent for Hispanics and 19 percent for Asian testers.

The results of Newsday’s investigation mirror those of an earlier investigation that our two organizations jointly conducted to determine whether black renters on Long Island were being discriminated against in the housing options that they were offered. Our similar use of paired testing revealed that in both Nassau and Suffolk counties property owners and management companies were showing apartments to white applicants and not to black applicants. Our findings led to successful litigation resulting in court-mandated settlements in 2014 and 2016 with the offending rental housing providers. 

The challenge for New York State government is that racial discrimination in housing in New York is systemic. The problem is not limited to the sales or rental market or to the real estate industry. It’s not limited to Long Island. The stark patterns of residential racial segregation evident across the state – and throughout the nation – were created by the intentional and coordinated actions of the federal and state governments, housing industry, and other institutions over many decades, and this segregation has been sustained by the same institutions.

The Fair Housing Justice Center and ERASE Racism have, therefore, developed a five-point plan to address this widespread pattern of residential racial discrimination.

First, fully utilize the licensing power of the State to better regulate real estate licensees. States possess the authority to regulate the behavior of licensed businesses and individuals. New York should more effectively exercise its authority to regulate the real estate industry. Among other actions, the New York Department of State’s Division of Licensing Services should review the results of the Newsday investigation to determine if any of the licensees engaged in conduct that warrants disciplinary action including possible suspension or revocation of licenses.

Second, create a well-resourced, proactive, and better coordinated fair housing enforcement strategy. The public agencies charged with enforcing local, state, and federal fair housing should coordinate efforts to review Newsday’s findings to determine if any warrant enforcement action to obtain compliance with fair housing laws. Greater emphasis should be placed on conducting investigations aimed at documenting systemic housing discrimination. While complaints still need to be investigated in a timely and thorough manner, significant resources must also be devoted to conducting proactive testing investigations. 

Housing discrimination has evolved over time. Before passage of fair housing laws, discrimination was overt. Housing consumers of color were frequently met with slammed doors and racial epithets. Now the “slammed door” has been replaced with a “revolving door” where people are often politely escorted in and then away from the desired housing. The victimized person is usually unaware that discrimination occurred, and this reality calls into question the efficacy of public agencies solely pursing a complaint-responsive approach to enforcing fair housing laws. 

Third, the real estate industry should take affirmative steps to ensure compliance with fair housing laws. The Long Island Board of Realtors has a special responsibility here, but industry-wide action is needed. The industry’s trade association should provide model fair housing policy statements – and explain the consequences of non-compliance – to member real estate firms and their agents detailing best practices in non-discriminatory real estate sales and marketing. Real estate companies should adopt affirmative hiring practices to create more diverse sales forces.

Fourth, affirmatively further fair housing in all housing and community development activities at the local, state, and federal levels. In that connection, New York State should amend its Human Rights Law in two ways. First, it should explicitly prohibit discriminatory action by local public agencies involved in housing, land-use and zoning, or community development to ensure that their efforts are not perpetuating segregation by making housing unavailable based on race, national origin, etc. Second, similar to what California did in 2018, the law should require state agencies and departments, local jurisdictions, public housing authorities, and other public entities receiving state or federal funds for housing and community development to “affirmatively further fair housing” and take no action that is materially inconsistent with this obligation.

Fifth, New York State should implement fair housing legislative initiatives, policy changes, and support for programs that expand access to housing opportunities in all neighborhoods. Among other actions, the State should allocate funding for regional mobility assistance programs that help families with rental subsidies to access housing opportunities in low-poverty neighborhoods with well-resourced schools. The State should enact a statewide “Equitable Share” housing plan and establish a minimum affordable housing goal for every community. The State should also create a Statewide Zoning Appeals Board to ensure that local decisions meet State standards.

The issues illuminated by Newsday’s investigation have been exposed for all to see. Legislative initiatives, policy changes, and enforcement action are now required to address the State’s widespread failings, which have become all too self-evident.

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Elaine Gross is President of ERASE Racism, the Long Island-based civil rights organization. Fred Freiberg is Executive Director of the Fair Housing Justice Center, a regional fair housing organization based in New York City. On Twitter @EraseRacism & @FredFreiberg.

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King Saga Shows Need to Bring Real Ethics Reform to the City Council


council andy king

Council Member Andy King (photo: William Alatriste/City Council)


Another day, another egregious ethics violation, and it’s still business as usual in the City Council. Last week, the Council’s Committee on Standards and Ethics announced yet another investigation, the third to be precise, into Council Member Andy King’s behavior.

New charges allege that King actively tried to circumvent the Council-imposed ‘monitor,’ seemingly a glorified babysitter since he could not be trusted to act appropriately with his staff, and violated a majority of the disciplinary provisions imposed by the Council in the fall. New allegations include misappropriation of city funds for his personal benefit. 

The Council had every chance to remove him this fall, yet in an appalling 34-12 vote on his expulsion, the Council decided to punt, and in a separate vote opted to suspend him instead. Here begins a renewed round of flimsy excuses and attempts to hide behind precedent from those who voted against his expulsion.

I of course support restorative justice and giving people a second chance, but this is a Council member who has been warned for the umpteenth time and is clearly more emboldened to do whatever he wants. 

The Council is long overdue to rethink ethics oversight. Time and again the Council is asked to police its own members. And time and again, we’ve seen just how ineffective, broken, and inequitable this process is. There’s a better way.

The theory of change is not radical: remove ethics oversight from the political power structure and start a meaningful process to build a system, with input from staff members and aides, that will  protect workers and restore the public’s faith in the Council. This, out of necessity, will require a truly independent ethics oversight body.

But that’s just the first step. No New Yorker should face harassment on the job. It is unacceptable to protect Council members who have demeaned and harassed their employees, like King, who should have been expelled, and avoid severe repercussions for their behavior. The lack of accountability only creates a perverse permission structure that allows this type of deplorable behavior to flourish. That’s why I stand with Harassment Free NYCC, a courageous group of current and former City Council staffers, in their fight for a safe and inclusive work environment.

It’s simply not good enough to do the bare minimum. City Council staffers must be given the same opportunities and benefits as millions of other city employees and be allowed to unionize. I remain hopeful that the burgeoning union, the Association of Legislative Employees, is able to make significant progress on their unionization drive over the next year.

But this kind of reform also requires that the ‘but-this-is-how-we’ve-always-done-it’ mentality is shoved aside. In Albany, we’ve already seen the impact of what can happen when a group of insurgent candidates run, win, and create the space to upend antiquated norms for the better. As someone who used to work in City Council, I know there are many short- and long-term changes that can be made if we empower the staff themselves.

The looming realignment and wave of brand new councilmembers coming to New York City politics and government in 2021 is fertile ground for such structural change. Which is why we need an energized and ambitious cohort of new elected officials to capitalize on this unique opportunity to reimagine how the Council does business. It’s vital that independent reformers, not those beholden to a calcified Council culture and party bosses, are part of the new wave. 

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Brandon West is a candidate for City Council in Brooklyn’s District 39 and is the former president of the New Kings Democrats (NKD). On Twitter @btwest.

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Colossal Failures by New York Budget Division Bring Turmoil and Danger to Medicaid Program


Cuomo state budget

Gov. Cuomo & Budget Director Mujica (photo: Governor's Office)


The New York State Division of the Budget surprised the public this past November with an announcement the State faced a $6.1 billion deficit to close for the 2021 budget due by April 1, 2020. The DOB disclosed in its Mid-Year Update that Medicaid costs were exploding -- dramatically more than anticipated -- in both the budget adopted in April 2019 for the current year (fiscal year 2020), as well as for the next one (FY 2021). The budget agency said the situation demanded immediate cuts to both Medicaid and the overall budget.

The Cuomo administration, in its January 24 submission to the Legislature of the new budget plan, proposed $2.5 billion in new reductions to the Medicaid program for FY 2021, as well as incorporating almost $900 million in cuts for the current budget year that began being implemented in November.

The governor’s $2.5 billion cut to projected Medicaid spending would be implemented through the appointment of the Medicaid Redesign Team, which includes representatives from providers, unions, and some other groups, and is tasked with reconfiguring services to achieve savings that would reach the target reduction. If unsuccessful, or if the Legislature fails to adopt the MRT redesign, the Cuomo budget plan includes a fallback to an across-the-board $2.5 billion cut. At a joint legislative budget hearing on January 29, the Greater New York Hospital Association testified that those cuts would amount to 10% of the entire Medicaid program in New York.

The City of New York expressed alarm about another proposal in the governor’s budget proposal that would require local governments to pay for increased Medicaid costs that the State of New York has been absorbing in recent years. Mayor de Blasio testified in Albany on February 10 that the city has very little control over the state-run federal program and that this potential cost-shift could force the city to pay $1.1 billion more for Medicaid expenses in its own budget and warned the city’s public hospital system, Health + Hospitals, could be severely affected. The Cuomo administration has disputed the city’s estimates.

DOB Knew A Year Ago Medicaid Costs Were Escalating Rapidly
Despite the public’s lack of awareness of spiraling Medicaid costs, the Division of Budget and the State Health Department knew a year ago, before last year’s budget was adopted, that Medicaid spending was wildly out of control. The Empire Center for Public Policy, an Albany-based think tank and budget watchdog, accused the Cuomo administration of concealing the deficits in a detailed analysis released in December, following months of similar criticism from both the Empire Center and the Citizens Budget Commission. The Empire Center’s work helped blow open the Medicaid budget crisis and helped guide my own analysis.

DOB released documents after the budget was adopted last year that severely under-reported Medicaid spending, creating the impression there was no serious problem. The DOB’s Mid-Year Update was issued late, in late November, for the period April 1, 2019-September 30, 2019, seven months after the April 1, 2019 adoption of the 2020 budget. 

As the State Legislature and the governor were finalizing enactment of the 2020 budget in late March of last year, the State Health Department was informing the Division of the Budget that the payments of Medicaid bills were so much larger than anticipated that the State would violate a spending cap on the Medicaid program by $1.7 billion for the fiscal year ending March 30, 2019.

The DOB and the Health Department then deferred the payment of the $1.7 billion to Medicaid providers several days into the new fiscal year that began on April 1, 2019. The deferral meant that the State Medicaid budget for 2019 had run over its projection from a year earlier by 10%, and Governor Cuomo and the Legislature had just adopted a budget, with a baseline Medicaid spending for the start of 2020 that was already $1.7 billion higher than 2019. The whole budget was out of balance as well and not being reported as such.

Despite DOB and the Health Department’s decision to push the Medicaid payment into the new fiscal year, DOB’s 2020 Enacted Budget Financial Plan released in April 2019 contained Medicaid spending numbers that were obviously wrong, 

The FY2020 Budget Released by DOB in April 2020 was Clearly Erroneous
Below are the FY2019 and FY2020 DOH Medicaid spending projections taken from the Enacted Budget Financial Plans. The extra $1.7 billion deferred Medicaid payment, which should have been reported in either FY19 or FY20, is nowhere to be found in the excerpts of the Medicaid budget below:

     

FY'19 Enacted

FY'20 Projected

FY'21 Projected

DOH MEDICAID ENACTED 2019

20,358

21,490

22,535

           
     

FY'19 Results

FY'20 Enacted

FY'21 Projected

DOH MEDICAID ENACTED 2020

20,476

21,685

22,699

Instead, the deferral and the extra spending appear in the November 2019 Mid-Year Update all rolled into 2020, which now appears as $3.34 billion higher than FY19, bringing the expenditure to $23.82 billion.

   

FY'19 Results

FY'20 Updated

FY'21 Projected

DOH MEDICAID

20,476

23,821

26,193

       

Even though the $1.7 billion Medicaid payment was due in March 2019, meaning fiscal year 2019, it is not incorporated into the 2019 results. But DOB knew in April 2019 the payment had been deferred; after all, the agency had ordered it. The real result for FY19 should have been $22.1 billion, presented in April, with a correct projection for 2020. Instead, the Mid-Year Update put all the spending into 2020.

Following October 2019 New York Times reporting, and criticism by budget watchdog groups that the state had delayed Medicaid payments in 2019, DOB acknowledged major problems for the first time in a public document released on October 17, 2019, called the Annual Information Statement, intended for investors in state bonds. The State Comptroller reported on the problem a few weeks later, but it was not until the Mid-Year Update that the state was restating the problems as severe.

Going back to April 2018, the adopted FY2019 budget contained a colossal underestimate of the costs of the Medicaid program, which would affect the 2020 estimate and the 2021 estimate by billions of dollars. Medicaid spending projections simply had no basis in reality. Here’s the Mid-Year Update again, presented in November 2019 but this time with a serious Reality Check:

   

FY'19 Results

FY'20 Updated

FY'21 Projected

DOH MEDICAID

20,476

23,821

26,193

As stated above, the real baseline for 2019 was $22.1 billion after accounting for the deferred spending. And this made the spending forecasts for 2021 even more spectacularly mistaken. The Mid-Year Update forecasts what the spending would have been but for the abrupt and drastic curtailments implemented months ago and proposed for FY2021.

In April 2018 (FY2019), the Enacted Financial Plan showed Medicaid spending rising from $20.35 billion that year to $22.53 billion in FY2021. But the Mid-Year Update shows Medicaid spending rising to $26.19 billion in FY2021, an increase of $5.7 billion, or 28%, in just two years.

Why the stupendous error?
Frankly, the State Division of the Budget did not have a handle on all the many forces the state had set in motion for the Medicaid program:

The minimum wage increased.

DOB knew in 2016 that the multi-step minimum wage increase enacted in that year would bring the wage floor from $9 an hour to $15 an hour in New York City by the beginning of 2019, while a phase-in toward $15 an hour continued to take place in the suburbs and Upstate New York in 2020 and 2021. The April 2019 budget for FY2020 estimated the impact for FY2020 would be $1.1 billion. The Mid-Year Update estimated the FY2020 impact would be $1.5 billion and for 2021 $1.8 billion. DOB underestimated the impact of the increase.

The Federal government’s 100% reimbursement for the Medicaid expansion for Obamacare was scheduled for reduction to 90% in 2020; Comptroller DiNapoli reported in a budget analysis that this reduction would cost the State Medicaid program $1.7 billion in FY2019 and FY2020.

The State increased Medicaid rates. 

This happened in 2018, adding $140 million to costs, as reported by the New York Times in October.

Obamacare implementation increased Medicaid enrollment significantly.

The administration of the Medicaid program was shifting. As Obamacare began to be implemented in 2014, New York State created a new platform to apply for Medicaid called the New York State of Health. Medicaid enrollment grew from 5 million people in 2013 to about 6.2 million today, a 25% increase in enrollment. As a result, the State of New York began to share responsibility with local governments for determining eligibility for Medicaid for persons applying through New York State of Health.

The state also created other avenues for Medicaid enrollment. 

The elderly, the disabled, the mentally ill, and persons with substance abuse problems were required to move into managed long-term care. This included home-care services for existing and new beneficiaries, and a new “consumer choice” program allowed beneficiaries to hire family members, frequently with the assistance of enrollment agents called Fiscal Intermediaries, who could apply for the program on behalf of the potential new recipients.

Applicants could also attest they needed immediate support. While the local government still had to determine eligibility and assess their need for care, beneficiaries were moved into managed long-term care right away. Concern has been expressed that people who are healthy are being moved into the “consumer choice“ program, called Consumer-Directed Personal Assistance, without adequate monitoring.

The state absorbed all cost growth in local government Medicaid spending. 

According to the Empire Center for Public Policy, the state, starting in 2015, has absorbed about $1.3 billion in local spending, with New York City the main beneficiary.   

All of these factors seem to have meant that the Division of the Budget and the Health Department just couldn’t keep track of the combined impact of so many new drivers of Medicaid spending.

What now?
The state (and the Medicaid program) got a lucky break at the beginning of 2020. Tax revenues were reported up by $1.5 billion over the April 2019 estimate, and the state used the money to absorb much of the added Medicaid spending and eliminate the need to keep deferring payments to subsequent years. The state also now projects tax revenue will rise by $2 billion more than anticipated for FY2021, allowing more of the FY2021 deficit to be covered without spending cuts.

The state is still sitting on $6 billion in reserves that could be used to mitigate spending cuts. Mayor de Blasio and others have urged consideration of tax increases on the wealthy. The state could increase assessments on Medicaid providers, and use the money as a way to leverage federal Medicaid dollars, another way to mitigate cutbacks. Negotiations with the Legislature on the Medicaid program and the overall budget will no doubt bring adjustments to protect the Medicaid program and protect recipients and providers.

The Health Department, DOB, the Comptroller, and the Legislature need to figure out what went wrong. The State also needs to bring more transparency to reporting on the costs of the Medicaid program, and go back several years step by step. The Comptroller may need to require a restatement of the state’s books, too, and make sure there is no repeat to the colossal mistakes by the Budget Office.

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Jim Brennan was a member of the New York State Assembly for 32 years, where he chaired four committees. On Twitter @JimBrennanNY.

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Lessons from Amazon 'HQ2': Corporate Tax Incentives and Affordable Housing Need to be a Package Deal


corporate establish hq

The planned Amazon site (photo: Kevin P. Coughlin/Governor's Office)


This week marks the one-year anniversary of Amazon’s contentious withdrawal from its Long Island City plans. Meanwhile, the construction of 'HQ2’ is making steady progress in Arlington County, Virginia, and residents are preparing to welcome thousands of new Amazon employees to their neighborhoods. With its close proximity to Washington D.C., established infrastructure, and educated workforce, Arlington County was a natural choice for Amazon and has been an attractive market for years, with median sales prices steadily increasing between 5-8% annually. Since the announcement, however, housing prices have spiked by 12.6%, and many residents are blaming ‘HQ2’ for throwing the housing market into a frenzy.

Given the fact that the State of Virginia pledged $750 million in subsidies to attract Amazon to Arlington County, it is fair to consider the possibility that taxpayers may have financed their own affordable housing crunch. The most obvious solution to this problem would be to build more housing - yet Arlington is subject to restrictive zoning laws that prohibit multi-family zoning in most of the county. Public officials in Arlington and beyond need to recognize that large corporate tax incentives must be paired with zoning and permitting policies that allow cities to respond to their housing supply and affordability gaps.

The ‘HQ2’ bidding process showed that municipalities looking to revitalize their communities are eager to offer tax incentives in exchange for the promise of new jobs – a competitive bidding practice that has become increasingly popular. Supporters claim that these incentives are a net positive for cities, with tax expenditures offset by the increased revenue generated by economic growth and related "spillover" effects. Yet this analysis ignores an important part of the equation: the increased strain on infrastructure, public services, and affordable housing. 

In anticipation of Amazon’s arrival, Arlington County has started making infrastructure improvements such as updating its public transit systems and roadways. Yet, its to-do list fails to include the construction of new housing - largely because less than 12% of the city is zoned for multifamily development, like apartment buildings. Those restrictions stand in stark contrast to Long Island City, which by some estimates added almost 20,000 units of high-rise housing between 2010 and 2020, one of the highest absolute growth rates of any neighborhood in the nation.

Ironically, the very construction boom that made Long Island City such a competitive candidate for an Amazon campus may have spurred the opposition that ultimately torpedoed the deal. Still, local governments that offer tax incentives to attract large corporations would do well to mimic the LIC landscape by lifting the ban on housing types that can accommodate a growing, economically-diverse population.

That said, many recipients of economic development incentives are starting to grapple more seriously with the disruptive effects they have on local housing markets, which ultimately hamper their ability to attract talent. Tech giants like Google (which received a 22-year tax break) and Apple (a $10 million tax break) are blamed for making San Francisco one of the most expensive housing markets in the country. In 2019, both companies made headlines for their respective pledges to finance housing initiatives in California, with the hope of mitigating the housing shortages they contributed to creating. But unless cities reduce the regulatory barriers to creating more housing for a wide range of households, these generous donations will fall far short of their ambitious goals.

Given the political motivation for elected officials to create jobs for the cities and states they represent, it is safe to say that we can expect more of these incentives in this upcoming election cycle, notwithstanding the high-profile breakup between Amazon and New York. Research on the actual costs and benefits of these incentives is still inconclusive and highly contested. However, looking at Seattle, San Francisco, and now Arlington County, one thing is quite clear. Economic development incentives must be paired with more housing construction to foster diverse and inclusive cities.

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Brittany Mazzurco Muscato is a Graduate Researcher at the NYU Furman Center and a Master of Public Administration candidate specializing in Public Policy Analysis at NYU’s Robert F. Wagner Graduate School of Public Service. On Twitter @bamazzur.

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Judicial Discretion Isn’t a Fix for Bail Reform; Bail Reform was the Answer to Judicial Discretion


28 judge criminal

(photo: Ed Reed/Mayoral Photography Office)


As law enforcement and elected officials scream for a do-over regarding bail reform, they urge that judges should be given the discretion to remand people they believe to be dangerous. NYPD Commissioner Dermot Shea in a New York Times op-ed wrote, “We can trust New York State’s judges to use this discretion wisely and only for individuals who pose a real threat to the public or who continuously flout the justice system.” Shea’s boss, New York City Mayor Bill de Blasio, has been calling for giving judges discretion to decide a person’s dangerousness for years.

But the call for judicial discretion as a solution in search of a problem reveals that proponents are either ill-informed, naïve, or simply intent on returning to the racist and biased previous approach to bail.

By now, even those who argue for reforming bail reform agree that the system that had been in place for decades unconstitutionally and immorally punished people based on wealth. Governor Andrew Cuomo, as he signals a willingness to re-evaluate bail reforms, has said that “the system we had was discriminatory and biased.” That “system” was actually made up of individual judges.

Prior to January 1, 2020, it was common practice for judges of New York’s Criminal Courts to set bail that people without bank accounts couldn’t make. Stories are legion of people, almost exclusively people of color, held pretrial on Rikers Island, often on minor charges, because they lacked $500 or $1,000 to pay their way to freedom.

Judges were not required to set that bail. There was no law that mandated that kind of bail. Judges chose to do it. 

In fact, 50 years ago the New York State Legislature reformed the bail laws to allow for other, less restrictive, forms of bail than cold hard cash. Alternative forms of bail like unsecured bonds that do not require any upfront cash payment have been on the books since 1970, but judges have steadfastly refused to utilize these statutorily authorized mechanisms despite repeated trainings, encouragement, and pleading.

Instead, in the exercise of their discretion, judges have chosen to incarcerate people based on wealth by using the harshest option available -- cash or insurance company bail bond – as a way of incarcerating poor people of color who are, after all, supposed to be presumed innocent. It is precisely this exercise of judicial discretion that had to be legislated out of existence.  

While some law enforcement and elected officials warn of a bail reform apocalypse, it is critical to note that the judiciary, too, is clinging to the idea that money bail is sacrosanct. The revelations about the millions of people sent to Rikers Island because they couldn’t afford to pay their way to freedom are beyond dispute. There are countless stories of lost jobs, missed school, violence, and untold impact on physical and emotional well-being. Yet while there hasn’t even been any kind of publicly stated judicial remorse, let alone any mea culpas over the damage they inflicted, there are judges who bemoan bail reform and are trying desperately to return to the ways of the past.

Two judges, one from Nassau County and one from Albany County, chose to exercise their discretion by intentionally flouting the new law and setting cash bail that is now expressly forbidden by statute. 

So, pardon those who cringe and rebel at the notion that bail reform needs a judicial discretion fix. If such a change is made and past is prologue, there will be an awful lot of people of color in pretrial detention after having been deemed to be “dangerous.” As the saying goes, fool me once, shame on thee; fool me twice, shame on me.  

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

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The Amazon Delivery We Still Need: Invest in Public Infrastructure, Not Corporate Welfare


gov cuomo mayor amazon queens

(photo: Kevin P. Coughlin/Office of Governor Andrew M. Cuomo)


This week marks the one-year anniversary of the cancellation of the Amazon ‘HQ2’ Queens deal, which presents an opportunity for New Yorkers to reflect. That these types of destructive corporate welfare deals are still possible and that Amazon is still coming to New York City, albeit in a smaller footprint with fewer public subsidies involved, shows there is a lot still to be discussed around what - and who - our government prioritizes.

With the quick success last year of community groups, unions, and local elected officials assembled to fight the deal, opponents didn’t get the chance to make the bigger argument against the failed economic development ideas ‘HQ2’ represents.

The ‘HQ2’ deal was bad for New York City. Amazon dangled the promise of 25,000 jobs -- without committing to it -- in order to get what it wanted, which was public land quickly, cheaply, and with minimal public oversight. Why would our elected officials give well over $3 billion in subsidies and land to one of the largest, most profitable corporations on earth for an office they were already going to build and could easily afford, without requiring Amazon to make tangible commitments to the public good?

Simply by asking this question, opponents were labeled as naive anti-development radicals. Nevermind that we are backed by 40 years of research linking runaway economic and social inequality in America to neoliberal policies that shower public wealth on corporations, fail to deliver promised public benefits, and take money away from investing in public services. Economists across the political spectrum from the American Prospect to the Cato Institute all oppose corporate welfare.

However, the establishment’s consensus on economic development limited the ‘HQ2’ debate to the terms of the deal after the fact, not whether the deal should be made in the first place. Many Democratic officials still lazily point to decontextualized polls that claim to show that ‘HQ2’ was “popular” as though they came close to explaining its consequences. 

This mindset has been disastrous for our city. While HQ2 failed, Atlantic Yards, Hudson Yards (where Amazon is heading), and even Ground Zero have all followed the same neoliberal model -- give away public wealth to private profiteers in exchange for vanishingly small public benefits.

As glass towers, a new sports stadium, or a mall disguised as a transit hub rise around our city, critical public institutions like NYCHA, CUNY, and the MTA crumble. Yet the media largely gives cover to the establishment by treating these as separate universes divorced from the interconnected decisions that they make about where to invest our public wealth.

No one in our political establishment is called “radical” for giving billions of dollars of public money and land to developers, corporations, and billionaires while over 90,000 New Yorkers are unhoused. No one is called “naive” for still arguing, despite all empirical data, that subsidizing luxury development will trickle down. No one has paid a political price for when these expected public benefits don’t materialize.

Opponents of the Amazon ‘HQ2’ deal were also falsely accused of not having an alternative vision for growth. The real issue is what value “growth” has in the late capitalism era of rising income inequality, racial injustice, and climate disaster. Given these challenges, we must rethink our economic priorities. If the 2010s can be summed up as “move fast and break things” the 2020s should be “slow down and fix things.” The practical solution is obvious: public investment in public infrastructure.

We’ve done this successfully in the past. Look no further than Amazon’s decision to open an office in New York City without public assistance. It wasn’t attracted to New York City because of tax incentives (though it will benefit from the incentives Hudson Yards received). It was attracted because of generations of public investment -- the city’s density, lubricated by public transportation; its workforce, nurtured by public education and housing; and its amenities, grounded around public parks, libraries, and the arts. These upfront investments created the shared public wealth that attracts individual ambition and innovation.

Instead of investing our wealth in growing these public institutions, the political establishment has been co-opted by big developers, corporate monopolies, and extremist billionaires that funnel it out of our city into offshore bank accounts. Instead of fighting against economic inequality, racial injustice, and climate disaster, this system fuels all three. We can no longer tolerate this.

Amazon has exploited this system skillfully and ruthlessly, which is why many of us still protest its presence in our city a year later. I’m running for Congress -- to represent the district Amazon ‘HQ2’ was going to call home until we stopped it -- because we have the chance to hold this failed system up to public scrutiny and to hold our elected leaders responsible for giving away our public wealth for nothing. We might not be able to kick Amazon out of New York City altogether, but we can rid ourselves of this system along with the establishment that defends it, and replace it with one that works for every New Yorker.

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Peter Harrison is a Democratic candidate for U.S. Congress (NY-12) and an adjunct lecturer at Baruch College. He lives in Stuyvesant Town. On Twitter @PeteHarrisonNYC.

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Surveillance and the City: Tracked Until Proven Innocent?


one police executive

NYPD tabletop meeting (photo: Edwin J. Torres/ Mayoral Photography Office)


As advocates of mass incarceration slowly realize they are losing their grip on political power, they are flailing to find new strategies to undermine the state’s recent bail reforms. Under the media-driven, police union-inspired, fear campaign against reform, many advocates of the carceral state are pushing a new form of confinement: perpetual GPS monitoring. This techno-solutionism may sound like progress, but GPS monitoring carries the same presumption as cash bail: that some New Yorkers are guilty until proven innocent.

New York is not alone in seeing increasing pressure to replace physical incarceration with new and increasingly invasive forms of electronic monitoring. These surveillance systems can track every place you go, everything you say, and even those around you.

Forget the fact that the businesses cashing in on electronic monitoring have little evidence that it prevents recidivism. Forget the fact that the costly technology is often error prone. You are still left with the mindset of mass incarceration, the presumption that New Yorkers should be stripped of their rights and dignity simply for being charged with a crime.

Thankfully, City Hall has proven to be an unlikely ally in this fight. Don’t misunderstand, Mayor de Blasio hasn’t gone through some criminal justice reformation. The one-time Park Slope progressive didn’t rediscover the principles he seemingly shed on Gracie Mansion’s stoop. No, City Hall is delaying the expansion of electronic monitoring through bureaucratic delays and mismanagement. 

Under New York’s recent reforms, private bail firms can no longer make a profit from renting electronic shackles. Instead, the City itself must take charge of the electronic monitoring program. This delay gives us a crucial window to push back against the wholesale tracking of New Yorkers waiting for their day in court.

The potential scale of electronic monitoring is staggering. In 2018, more than 77,000 people were arrested in New York City for felonies that qualify for electronic monitoring under the new state law. But that number is actually an undercount, since it doesn’t include the thousands arrested on qualifying misdemeanor charges. Yes, New York’s law is so broad that even those accused of certain misdemeanors might soon be forced to wear tracking devices while they await their next day in court.

To understand why that prospect is so daunting, you have to understand the power and perils of modern-day monitoring devices, which have become increasingly invasive and sophisticated. Some devices can turn wearers into walking wiretaps—recording themselves and anyone nearby. Devices can capture sensitive conversations with attorneys or doctors. Some jurisdictions even use this capability to record children.

And then there is the medical impact. It should surprise few that having an electronic device physically attached to your body can cause severe injuries. Complaints range from mild injuries, like bruises, hair loss, and headaches to more serious complications like electrical shocks, and impaired breathing and blood circulation. Many choose electronic monitoring rather than having to endure the horror of jail, but no New Yorker should be forced to choose between their health and freedom.

A new class of electronic monitoring devices spares users the injuries and indignities of traditional GPS anklets. Instead, some electronic monitoring firms install tracking software on users’ smart devices. These applications use the same location tracking that companies use to track phone users and target them with ads.

These products can be less stigmatizing than highly visible tracking devices, but they can have significant privacy and economic impacts. Many phone-based applications record users’ biometric information without disclosing how that data is saved or shared. Applications may access other information saved on users’ devices, and they can exhaust their data plan allowance and battery life. These impacts are quite substantial, especially for low-income individuals, and are a completely inappropriate way to punish New Yorkers who have not yet had their day in court.

Whatever form of electronic monitoring we use, the truth is that we won’t use it equally. Electronic monitoring is disproportionately targeted at low-income communities and communities of color. This should come as little surprise, since these are the exact same communities that bear the brunt of every aspect of the criminal justice system. Poorer New Yorkers are more likely to be arrested, more likely to be charged, and more likely to be subjected to invasive monitoring.

Electronic monitoring is particularly dangerous for undocumented New Yorkers. Despite our claims of being a “sanctuary city,” there is no law that would prevent Immigration and Customs Enforcement (ICE) or any other federal agency from getting a court order to force the city to provide users’ location history. This not only endangers undocumented defendants, but their neighbors, families, and faith communities. This is yet another reason why location tracking must not become the norm for those awaiting trial.

The bail reform backlash has shown that many New Yorkers are deeply uncomfortable with living up to the values we preach. But even some who support bail reform also buy into the false promise of electronic monitoring, propping up the broken logic of mass incarceration and the belief that poor defendants of color are entitled to less due process than their wealthy neighbors. We have to do better, and we have to continue to fight for a city where no New Yorker is tracked until proven innocent.

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Albert Fox Cahn is the founder and executive director of The Surveillance Technology Oversight Project (S.T.O.P.) at the Urban Justice Center, a New York-based civil rights and privacy group, and a fellow at the Engelberg Center for Innovation Law & Policy at N.Y.U. School of Law. He writes the monthly "Surveillance and the City" column for Gotham Gazette. On Twitter @FoxCahn & @STOPspyingNY.

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New York’s Wrongly Open Skies


open op

helicopters in Manhattan (photo: Julia Vitullo-Martin)


Helicopter crashes in the skies of New York City — two in 2019 —temporarily bring renewed attention to the odd situation by which hundreds of vehicles weighing up to 12,000 pounds each fly low every day over the country’s densest city, a city that was attacked from the air in 2001.

Precisely how many flights there are, by whom, and for what purpose are secrets kept by New York City’s Economic Development Corporation, which oversees three heliports on behalf of their owner, New York City.

Manhattan Borough President Gale Brewer says that complaints about helicopter noise and pollution are constant, and have been for years. And even though we are all now subject to time-consuming and sometimes intrusive searches to board planes at airports, passengers and pilots on helicopters undergo only the most cursory security procedures.

The recent helicopter crash that killed Kobe Bryant and eight others occurred north of Los Angeles, on the other side of the country, yet the catastrophe holds several sobering parallels for New York.

Dangerous Terrain
Burdened with the nation’s busiest airspaces, both L.A. and New York City also have dangerous, sky-high terrain that helicopters must avoid. LA has mountains, New York has skyscrapers.

Bryant’s helicopter lacked a Terrain Awareness and Warning System (TAWS), as do many, perhaps most, helicopters flying over New York. Even though the National Transportation Safety Board (NTSB) has long urged that warning systems be mandated, the Federal Aviation Administration (FAA), the federal agency regulating helicopters, has resisted, saying that because helicopters fly so close to buildings a TAWS would produce too many false alarms. Both L.A. and New York are also subject to the thick marine layer and dense fog that were factors in the Bryant crash.

Frequent Commuting
Bryant was commuting by helicopter, a practice that is increasingly common in New York, and for the same set of reasons: clogged and unpleasant ground transportation.

As the LA Times noted recently, the customer base for heli-commuting “skews rich, famous and traffic-averse.” Private entrepreneurs have eagerly responded to demand. As Jeff Holden, Uber’s Chief Product Officer, said, “So far we’ve been focused on ground-based transportation, but then we asked ourselves: Why can’t we fly today? Why can’t we take to the air? It’s not a matter of if, but when,” which was July of last year.

And not just Uber. “There isn’t gridlock in the sky,” says Rob Wiesenthal, the founder and chief executive of Blade, the vanguard company flying luxurious helicopters to the airports, the Hamptons, and Nantucket told the Wall Street Journal. Voom CEO Clément Monnet claims to be improving “people’s lives by giving them access to the air.”

Lightly Regulated
The twin-engine Sikorsky S-76B, a familiar vehicle to sky-watching New Yorkers who can see the big white helis regularly power across Manhattan, is owned by charter company Island Express Helicopters. Like all L.A.-based charter companies, Island’s FAA operating certification limits its pilots to flying under visual flight rules, which require a half-mile of daytime visibility and the ability to see the ground. The company lacked certification for its pilots to fly with instruments, the system for operating in fog or clouds. But the FAA seldom penalizes this violation, letting helicopter companies operate on a self-regulatory basis.

And it’s worth remembering that the above factors were also central to New York’s June 10, 2019 horror when a helicopter burst into flames after smashing into the fog-shrouded roof of a 7th Avenue office building. That pilot was also not authorized to fly using only instruments. He shouldn’t have been flying at all in the rainstorm.

Worse, the helicopter company whose March 2018 doors-off flight crashed into the East River, killing five tourists, is still flying, unimpeded — unchallenged even — by federal regulators. A report by the National Transportation Safety Board in mid-December of this year placed the blame for the accident on the company, which had bypassed strict standards for sightseeing tours by falsely categorizing its flights as photographic in purpose, which has far looser regulations. And it had installed deficient harnesses, said the NTSB, that locked each tourist in place, pinning them helplessly as the helicopter turned over in the frigid water.

There’s a fundamental reason New Yorkers should be concerned about what’s happening in the skies of Los Angeles: like all American cities, neither L.A. nor New York controls its own skies. Skies are the purview of the federal government, which might in itself be OK, except that regarding helicopters and other low-flying aircraft the federal government has simultaneously asserted its authority and refused to regulate on any significant level. If any kind of serious reform — and that includes serious regulation — is to come to the helicopter industry it will have to begin in the big cities.

Yet despite a few rhetorical flourishes from Mayor Bill de Blasio denouncing commercial helicopter flights, City Hall has taken no recent steps to curtail flights.

Basically, anyone can fly through New York skies unless the federal government intervenes and says they can’t. But the federal government now and pretty much forever has been loath to restrict flights — even in the aftermath of 9/11. And even the city’s occasional attempts to control quality-of-life issues like noise and pollution have been restricted, originally by Supreme Court Justice Sonia Sotomayor in 1997, when she was a district judge.

In National Helicopter v City of New York, she permanently enjoined the city from imposing a mandatory 47% reduction in helicopter operations at the East 34th Street Heliport, designating tourist sightseeing routes, excluding Sikorsky S-58Ts from sightseeing flights, and mandating that all helicopters be marked for identification. A federal appellate court subsequently allowed the city to restrict operations, but permitted the ban on markings to stand.

This alone is a huge issue, and one that Borough President Brewer has been fighting for years. Federal regulations require that helicopters be individually identified, but the city (and Brewer) wanted the identification to be visible, painted in large digits — much like NYPD patrol cars or MTA buses — so that New Yorkers would know what was flying above them, hovering over Shakespeare in the Park performances or racing up and down West End Avenue on Sunday mornings.

Are these flights for tourism? Corporate commuting? Paparazzo? Government? Media? Police and emergency? We can’t know. Central Park, so precious to New Yorkers as a peaceful haven, is to the FAA a helicopter corridor. The FAA’s Central Park Route runs from West 72nd Street to the northern tip of Roosevelt Island, thus the many complaints Brewer’s office receives from Upper West and Upper East Siders.

What’s to be done?
The simplest, most direct solution would be for the FAA to issue Temporary Flight Restrictions forbidding flights over New York City, as it has done for Disneyland, of all places. But this is unlikely to happen. The FAA is what political scientists call a “clientele agency,” meaning their main mission is to protect rather than regulate the clientele industry.

Led by Rep. Jerry Nadler, New York’s congressional delegation has repeatedly introduced legislation to ban nonessential flights over New York City, the most recent being the Helicopter Safety Act. But what is nonessential? The FAA has repeatedly ruled that any transportation use, including commuting, is valid, and under the bill helicopter flights deemed essential would still be allowed, including law enforcement, emergency response, disaster response, medical services, or “for the public interest,” which is undefined.

It’s possible that even if Nadler’s bill passes, New York will be left with tens of thousands of flights deemed essential.

Technology can help. Flight tracking services, like FlightRadar24, provide real-time data on thousands of flights around the world, but also in your neighborhood, telling you which aircraft models are flying, as well as their origin and destination. At peak hours, the FlightRadar24 map of Manhattan looks like it’s infested with insects, as the tiny helicopter emoji crowd one another all over the borough.

The app is not yet sophisticated enough to catch every flight, especially for the low-flying aircraft that especially distress New Yorkers. But you’ll often see helis on the app hovering over city parks, monuments, and waterfront areas where taxpayers have invested billions of dollars. As former New York City Parks Commissioner Adrian Benepe says, “Taxpayer investment in parks is being ruthlessly undermined by the ongoing blight of helicopter flights.”

The first step in reform is to get the information: how many flights, by whom, in what aircraft models, for what purpose? What are their routes? How low are they flying?

NYCEDC keeps some generic data, which it publishes reluctantly and rarely, on its three city-owned heliports. But no agency releases data on the thousands of flights coming in from outside New York City’s borders, mainly New Jersey and Long Island, but increasingly upstate New York and New England. And if the on-demand flight services get their way, soon there will be more flights from more distant points.

Government agencies refuse to release their data, but a citizens’ brigade of heli watchers, armed with flight tracking apps, could provide enough of the data to demonstrate the extent and precise geographic locations of the issues.

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Julia Vitullo-Martin is a writer and planner. On Twitter @JuliaManhattan.

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Will the MTA Really Turn Its Back on Disabled New Yorkers Yet Again?


mta purchased access

(photo: Patrick Cashin/Metropolitan Transportation Authority)


Although accessibility is a hot topic of late, is government truly willing to partner in the multifaceted effort required to increase positive outcomes and general quality of life for our city’s residents and visitors with disabilities?

People seem to enjoy theorizing about its necessity and how long overdue universal design has been, but once the discussion reaches implementation, the ideals suddenly are not as indispensable as they once were.

I am a Brooklyn-based blind New Yorker who has been using Access-A-Ride since 2003. In 2017 I applied for and was selected to participate in the On-Demand E-Hail Pilot Program with Access-A-Ride and the city’s Taxi and Limousine Commission. In total, there are 1,200 users in the program who were all selected from a waiting list.

As the pilot program is now set to be severely restricted in the coming months, I am concerned with the future of Access-A-Ride service and the rights of our city’s residents with disabilities who cannot ride the subways and/or buses.

This program has greatly enhanced my level of independence and productivity as a professional person who is blind and juggles two jobs. Putting a cap on the number of rides I can utilize with on-demand service is the equivalent of putting a cap on my potential success as a blind person.

Traditional Access-A-Ride service does not give an individual with a disability the same level of autonomy and access to opportunity that straphangers typically enjoy. Having to schedule trips before 5 p.m. a day or two in advance, enduring the number of late pickups and the often-circuitous rides of the five boroughs made it very frustrating to use at best.

Traditional carriers have been making an exorbitant amount of money at over $80 per trip. In comparison, the on-demand e-hail trips average $36 per trip for a superior service at less than half the cost, allowing disabled citizens to live our lives with some autonomy and dignity. Despite multiple audits, exposed inefficiencies, and ties to unsavory crime elements over the years, the MTA still thinks it viable to utilize traditional Access-A-Ride carriers who are more than willing to overcharge to provide horrendous service for people with no other means of transport.

Although all of these issues were solved in one fell swoop with the inception of the e-hail program, the MTA has announced that due to the increased ridership (based on a biased user sample) use of on-demand service will be restricted to 16 rides per month with a subsidized cap of $15 per ride. I wonder if MTA Board members, Access-A-Ride management, and Governor Cuomo, who effectively runs the MTA, understand that disabled folks are not porcelain dolls, just living our lives on a glass shelf somewhere. Paratransit costs are projected to surpass $600 million this year; is that massive sum being invested wisely? Is there any awareness as to why this amount of taxpayer dollars is being invested in a necessary resource that is supposed to level the playing field? Or to some at the MTA, might the paratransit discussion be analogous to an unpleasant mundane task such as figuring out trash removal?

Plans for more elevators, improved wayfinding, and tactile navigation strips in the subway are all welcomed enhancements when they do arrive, but Access-A-Ride service must evolve as well.

We must all better understand a difficult and frustrating situation and identify and pursue the steps to fix it. We need to raise awareness, arrive at equitable solutions, and hold the MTA accountable. If we are properly enabled, those of us with blindness and other disabilities can and will contribute so much more to our city.

Access-A-Ride must be a key piece of the equation. The MTA claims increasing ridership makes the on-demand pilot unsustainable, but that is a sign of success and we should embrace the fact that this service is needed, and that it allows New Yorkers with disabilities to live fuller lives and contribute to our city’s fabric in so many ways. Not only do individuals with disabilities contribute socially, helping to raise awareness and promoting tolerant and inclusive attitudes, we are making economic contributions as viable workers and consumers.

The Access-A-Ride pilot program has been life-changing for many of us who contend with a disability. It has enabled me to accept a promotion as an itinerant supervisor of teachers of the blind/visually impaired. My main office is in Manhattan, while I supervise teachers in Staten Island, Queens, and Brooklyn. Without the autonomy and flexibility that on-demand Access-A-Ride service facilitates, I would not be able to competently perform my job at the highly proficient and efficient level that allows me to professionally compete with my non-disabled colleagues, as traditional Access-A-Ride service makes it impossible to move around in a reasonably efficient and timely manner.

Governor Cuomo and MTA Chair/CEO Foye, I ask you to consider how you would compensate if you had newly found autonomy and mobility and then they were going to be restricted; how would you deal with all the issues that I am now confronted with?

My fellow taxpayers, this is a civil rights issue, as our governor and the MTA have clearly decided that disabled citizens who need to utilize Access-A-Ride are not entitled to the same rights, autonomy, and access to opportunity as non-disabled citizens. And the reason? Because they’ve deemed e-hail is too expensive after it showed success? Is it equitable or ethical that a person who needs to use Access-A-Ride has to live their life in such a predetermined and scheduled fashion, allowing for no spontaneity or flexibility? This does not sound like a level playing field to me, nor is it the right investment of over 600 million of our tax dollars.

Governor Cuomo, you should never mistake disability for inability. Disabled or not, it’s about time that all people are treated fairly. Let’s invest in true equal access, improving outcomes for all. Let’s enable disabled New Yorkers, helping people to live the lives they want and deserve, facilitating more contributing taxpayers and thriving New Yorkers throughout our great city.

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Gian Carlo Pedulla is a member of the MTA’s Advisory Committee for Transit Accessibility and a supervisor for Educational Vision Services at the New York City Department of Education (all opinions here are his own and do not represent the ACTA or DOE).

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In Presidential Campaign, Progressive Democrats’ Death Penalty Stances Fall Short


Gotham Gazette:

Attica (photo: Wikimedia Commons)


Democrats Bernie Sanders and Elizabeth Warren are widely known as the most liberal lawmakers vying to be the party’s presidential nominee in 2020. Both believe in healthcare, higher education, and childcare for all. They often cite that the country lags behind most other countries of the world in areas of maternity health, infant mortality, economic and wealth inequality, and many other societal measures of health and well-being. However, as far as international standards go, Warren and Sanders are both out of touch in their belief in permanent punishment and life imprisonment in the U.S. criminal justice system.

In June 2019, the New York Times interviewed Sanders, Warren, and the slew of other Democratic presidential candidates running at the time about their stances across many foreign policy and domestic issues, including the death penalty. Just about all of the candidates interviewed affirmed that they opposed the death penalty. Warren and Sanders took their stances a step further, adding that they believed people should be locked up forever as an alternative to the death penalty.

“I also oppose [the death penalty] because I think that people who have committed truly heinous crimes should die in prison, suffering for the rest of their lives,” emphasized Warren. Sanders echoed Warren in his reply by saying, “You have people who should spend the rest of their lives behind bars…” Sanders continued his anti-death penalty stance by saying, “part of the need for real criminal justice reform is for the United States to do what virtually every other major country on earth is doing.”

If Sanders and Warren want to continue to separate themselves from the Democratic presidential pack, then they should look to do what just about every major country on earth is doing and begin to unravel, not reinforce, life imprisonment. They should also examine the historical reality that the people condemned to a life of suffering and death by incarceration in the United States are disproportionately People of Color.

While it’s common knowledge that the United States has roughly 5 percent of the world’s population and 25 percent of the world’s incarcerated, fewer people know that 40 percent of all people on the planet serving a life sentence are behind bars in the U.S. Today, there are more than 206,000 people serving a life sentence in U.S. state and federal prisons—more than the total number of people in all U.S. prisons in 1972. Unsurprisingly, the large majority are black and Latino people. I was one of them.

In 1980, I was convicted of bank robbery and attempted murder of a New York City police sergeant. For the next 38 years, I served a life sentence and met countless others who were also sanctioned to life and death behind bars. I saw firsthand how life imprisonment ripped hope from people’s souls, permanently separated families, and destabilized entire communities, particularly communities of color. I witnessed my fellow lifers take their last breaths in prison cells and hospice beds, grow confused with dementia about why they were in prison in the first place, and age years and decades faster than most people in the outside world.

In January 2018, I was finally released from prison. The day I walked out of prison was the happiest day of my life. It was a day I started to suspect would never come for me.

Over the years some of my closest friends, men who were my mentors, others I had mentored, passed away behind bars. We shared decades of our lives helping each other confront the thinking that led to our incarceration and developing and facilitating the most comprehensive in-prison therapeutic programs that helped to completely change our behavior. We created victim awareness workshops and seminars to develop insight into the harm our crimes inflicted on innocent people. We took full responsibility for rehabilitating ourselves and empowering others with life-affirming principles and values, and a sense of community.

As my brother drove me past the prison grounds I thought about the men I was leaving behind, men who should have been walking out of the prison gates with me. Instead, many will likely die in prison. 

When U.S. elected leaders talk about who should suffer and die in prison, they’re talking about men I personally know, men and women who for decades have helped entire generations of younger people transform their lives and who often pose no risk to public safety. Instead, they would enhance the safety of communities if given the chance to return home.

Formerly incarcerated people are often the only ones willing and able to reach out to at-risk young adults who are otherwise abandoned and neglected by society. We give them a vision of a future that does not include gangs, violence, and crime. Such men and women are the reason why I am the man I am today. They are the reason why formerly incarcerated people today serve as credible messengers, violence interrupters, and street counselors. They have helped their peers develop a greater sense of community and civic responsibility than most people who have never been incarcerated.

For these reasons and more, there is a growing national movement working against the sentiments expressed by Sanders and Warren. A movement founded on the fundamental principle that every incarcerated person has the potential for genuine transformation. Death by incarceration sentences are inhumane and rooted in the legacy of racism. They also don’t make us safer.

Decades of research has proven that life imprisonment does not promote public safety, deter crime, or meet the many needs of victims and survivors of interpersonal violence. Further, those serving life sentences are least likely to commit another crime or return to prison upon release as they grow old behind bars. This is even true for people convicted of murder and other forms of serious violence.

The rest of the world realizes these truths, and lawmakers in some states have started to realize them too. In New York for instance, lawmakers are working to pass a bill that would allow the State Board of Parole to give individualized case reviews and assessments for release to people in prison who are age 55 and older and have served 15 or more years. The governor of Virginia recently proposed a similar elder parole policy, while legislators in Pennsylvania, Massachusetts, and Washington State have proposed an end to life without parole sentences.

While there is no one clear way to end prison sentences that amount to permanently punishing people and families, there is a growing understanding that something must be done. Warren, Sanders, and the other Democrats seeking to pave a progressive path to being the next Democratic nominee for president should get on board. 

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Jose Saldana is the Director of the Release Aging People in Prison Campaign, a community organizing and advocacy campaign that works to reform long and life prison sentences and promote racial justice. On Twitter @RAPPcampaign.

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