Who knew there were provisions for wagons and regulations for kite flying around the city's telegraph system within the city's fire code.
Well, no more.
After a three-year review, the City Council unanimously approved a revised fire code on Wednesday. The code was last revised in 1913. In response to changing times, the update requires more informative evacuation plans and includes construction sites into fire safety management.
In addition to updating the code, the council also approved a budget modification to fiscal year 2008 -- initially approved last June -- which included an additional $2.2 billion surplus from tax revenues. The move sparked some opposition from several council members, who said they did not have enough time to review the documents and questioned the additional surplus found by the administration.
The council also approved a lease for a recycling station in Sunset Park.
The city's new fire code ( Intro 732-A ) will bring the city's standards in line with the International Fire Code and with the city's recently revised building code in order to improve safety conditions, said officials.
The plan, which goes into effect in July, will require the development of a fire safety program for construction sites and provisions for rooftop access. Under the new code, temporarily vacant buildings will also have to maintain their fire safety systems.
"Oh course it's not as sexy as the building code," said Fire Commissioner Nicholas Scoppetta. "But it's still very, very important."
Many of the new provisions might pertain to tragedies like the Deutsche Bank fire last August, where the fire safety system, including the building's standpipes, was not fully maintained while it was being taken down floor by floor.
Though some buildings, like the the United Nations, will not be covered by the fire code, because they are out of the fire department's jurisdiction. Scoppetta said the department is in the process of reviewing some of these so-called loopholes.
Scoppetta said the department's primary focus was on safety, but it did consider some of the code's economic impact on construction and building costs. Officials said the City Council and the department received feedback from multiple industries, from fire extinguisher companies to real estate boards.
What is typically a procedural issue turned controversial on Wednesday when the City Council considered a budget modification that took a unexpected $2.2 billion surplus and used it to prepay debt in 2009 and 2010.
Though the council approved the change unanimously, members raised concerns that they had not had enough time to review the documents. The budget modification, which is an inch thick and about 130 pages, was released to some members during a political meeting 24 hours before the vote.
"There should be a minimum time period," said Councilmember Alan Gerson.
The vote came on the heels of an effort by Council Speaker Christine Quinn, who has presented herself as a reformer and champion of transparency, to make the budget process more transparent following the City Council's slush fund scandal.
Other members questioned the use of the city's surplus -- especially when the Department of Education is facing budget cuts.
Both Quinn and the council's Finance Committee chair David Weprin said paying down debt was a smart move.
"It may appear that the city is flush with money, but we're not," said Quinn. "We have to use that money to pre-pay debt or we'll be in a worse place."
Councilmember Lewis Fidler and others questioned the administration's motive for this newfound surplus. Fidler suggested the over estimation of spending and under estimation of revenues during budget negotations could be a tactic to keep the City Council's spending in check. The council has to approve a balanced budget by June 30. But if a surplus appears later in the year, the mayor can determine where the extra money will go.
"The Office of Management and Budget underestimates revenue every year so we don't spend money they don't want us to spend," said Fidler. It's just another way of maneuvering the budget dance, he added.
As part of the Bloomberg administration's solid waste management plan, approved by the City Council in 2006, the city is dispersing the recycling and waste facilities throughout the five boroughs.
As a result, Sunset Park will host a large recycling station, operated by the Sims Group, to manage part of the city's sorted trash. The station, which will receive material via barge, will be more than 1 million square feet. The council unanimously approved the lease of the 30th Street Pier to the Sims Group for the facility.
To see how else the city manages its waste, check out Gotham Gazette's Garbage Game. Â
When Jimmy Byrd went on trial for nearly murdering the woman he lived with -- the mother of their young daughter -- the victim did not appear in court and Byrd's lawyer never cross-examined her. Byrd was convicted anyway. This, he said, violated his constitutional right to confront witnesses. The trial judge disagreed and now, so has the Supreme Court Appellate Division in Manhattan.
Byrd had abused Jill J, as the victim is identified in court papers, physically and mentally for many years. On July 26, 2002, he became enraged when she poured water into a glass in which there was a residue of juice, an action that, in Byrd's view, demonstrated her incompetence. The evidence established that he slammed her head on the tile floor, repeatedly stomped on her abdomen, breaking her ribs and causing her pancreas to split in half. He then refused to take her to the hospital. The police were not called, and it was only when Byrd left the house six days later that Jill J managed to get herself to the emergency room, nearly dead. Surgery saved her life.
After Jill J gave her testimony to a grand jury by videotape while in the hospital, Byrd, who had already been arrested, was indicted, charged with attempted murder and assault, and held at Riker's Island. But as frequently happens in domestic violence cases, Jill J refused to cooperate any further with the prosecution, deciding that she loved Jimmy Byrd and that perhaps he needed help, but not punishment.
The question to be decided by Justice James Yates was whether her refusal to testify was a decision Jill J made of her own free will or under duress from Byrd. Criminal defendants do have an almost absolute right under the Sixth Amendment to hear and see their accuser's testimony and to have that witness cross-examined by the defense. There is, however, an exception. If the accused himself is responsible for the witness's refusal to come forward, he cannot then use that to his own advantage. He cannot both cause the witness to recant or retreat and then say that, without her testimony, his conviction is unconstitutional.
In this case, People v Byrd, Jill J testified at a pre-trial hearing that she wanted to forgive Byrd and did not want him to go to prison. However, she also admitted, after first saying he had only called her a couple of times, that he had been calling her regularly from jail, sometimes as often as 10 times a day, asking her to send him money and proclaiming his love for her, telling her how wonderful life would be when he got out. All of this violated an order of protection, which prohibited Byrd from contacting Jill J.
The court allowed an expert to testify in front of the trial jury that these were typical interactions in cases of domestic violence and battered woman syndrome. (The appellate court, perhaps for reasons of political correctness and notions of gender neutrality, refers to the battered person syndrome, but the literature on the subject does not, since the victim is almost always the woman.) Jill J fit the profile of a battered woman. She is isolated, fearful and emotionally dependent and vulnerable to her tormentor's protestations of love and remorse, which, she believes, will end the cycle of violence. She is therefore willing to believe that it is better not to testify against this man and have him taken from her. If only he can come home, she believes, there will be peace and harmony and a happy family life, though that has never existed before. In fact, although not part of the appellate opinion, court records show that Byrd had a history of violence with other women.
Dr. Ann Burgess, a recognized authority on violence and victim counseling who testified for the prosecution, told the jury that the victim's poor self esteem, frequently a result of her batterer's treatment of her as well as her fear of him, often makes the battered woman believe that it is better not to continue the prosecution. While there was no evidence that Byrd actually told Jill J not to testify against him, Jill J had received more than 400 calls from Byrd while he was held at Riker's Island, and so, according to Burgess, was under his "coercive control."
Burgess described the three stages of domestic violence: the tension building phase, the violence phase and the honeymoon phase. It is during the honeymoon phase, Burgess said, that the victim is "seduced into believing that the abuse will cease and that the family will remain intact. This cycle repeats itself over many years."
Justice Yates found that Jill J's unavailability to testify was a direct result of the defendant's misconduct and allowed the videotape of her grand jury testimony to be shown to the trial jury. Byrd, who did not present any witnesses or evidence, was convicted of first and second degree assault.
An opinion by Justice Karla Moskowitz, newly appointed to the appellate bench, affirmed that decision. According to the opinion, the defendant procured the witness's refusal to testify "through violence, threats or chicanery," and it was established that Byrd's actions following his arrest showed a pattern meant to, at least in part, silence the witness. The court concluded that Byrd had therefore forfeited the constitutional right to confront his accuser and to raise certain other legal objections.
Emily Jane Goodman is a New York State Supreme Court JusticeÂ
The results of last month's Chinatown raid were dramatic: over $1 million in seized counterfeit goods, 32 illegal vendors closed down and an entire block emblazoned with orange "closed by court order" stickers.
"Whoever you are, whatever you are, we are going to shut you down," Mayor Michael Bloomberg announced at a news conference.
Yet only a few days later a visitor to Canal Street could easily purchase fake Gucci bags and other brand-name products, a testament to the deeply rooted nature of the counterfeit trade. A Daily News headline said it all: "Chinatown block shuttered in huge raid, but brassy bootleggers still hawk fakes."
Welcome to the wild world of counterfeiting, which nets $23 billion in New York City annually and enriches a shadowy international underworld of smugglers and criminals - all supported by shoppers looking to save a buck.
About 8 percent of the approximately $287 billion in counterfeit goods sold in the United States annually is sold in New York City, resulting in over $1 billion in lost tax revenue, according to a 2004 report released by New York City Comptroller William Thompson. Counterfeiting also represents a drag on the economy: An estimated 750,000 jobs have been lost in the United States to counterfeiters, according to the United States Customs and Border Protection Agency.
New York City is one of the world's chief counterfeit hubs. In addition to being a major tourist and retail destination, the city's ports handle 13.4 percent of U.S. container traffic, providing ample opportunities for illegal shipping. For example, last December, the New York Times reported that federal officials seized over $200 million in smuggled goods at the Port Newark-Elizabeth Marine Terminal in New Jersey, including counterfeit Nike Air Jordan sneakers listed as "refrigerated noodles" on the ship's manifests.
Most counterfeits come from China, where experts believe that anywhere between two-thirds and 85 percent of all fake goods are manufactured. According to Caroline Joiner, executive director of the Global Intellectual Property Center at the U.S. Chamber of Commerce, a quarter of China's non-farm workforce, or 35 million people, are engaged in the production of counterfeits. Many work the so-called "ghost," or third shift, in which factories produce two shifts of legitimate items but stay open overnight to produce counterfeit goods.
These goods are typically shipped to wholesale vendors in the United States and other Western countries, and then distributed to smaller-scale street vendors like those in Chinatown. Sales of other goods like knock-off drugs and auto parts may bypass the street-level vendor and go directly to the consumer, who often does not know they are buying a fake.
"There are very powerful market forces at work here" said Moises Naim, the editor of Foreign Policy Magazine and the author of Illicit: How Smuggler, Traffickers and Copycats are Hijacking the Global Economy. "There are hundreds of millions of hungry customers and hundreds of thousands of very sophisticated entrepreneurs."
While most people associate counterfeiting with high-profile brand-name goods like Gucci bags, virtually everything we consume today is traded illegally. That includes "boot-leg" electronics, illegally downloaded music, toys, pharmaceutical drugs, software and even fake auto and airplane parts. Author Tim Phillips calls this thriving trade in fake goods "Knockoff Incorporated," because it represents 7 percent of world trade, twice the size of Wal-Mart. "Arguably it's the business success story of the modern era," Phillips writes.
Bloomberg has won high praise from experts for his aggressive anti-counterfeiting enforcement efforts. Since 2003, the city has seized $60 million in knock off goods and collected $1.5 million in fines. A number of observers also credit the city with shutting down bootleg CD and DVD manufacturers in Manhattan's Garment District.
"People tend to sense what's OK by what is allowed to go on openly in public," said Brad Buckles, executive vice president of anti-piracy for the Recording Industry Association of America, which has led an effort to reduce music piracy. "Actions like Mayor Bloomberg took on Canal Street help make people realize that this is sleazy behavior and not legal."
Many observers believe that, aside from New York City, government agencies do not take the problem of counterfeiting seriously enough. Distracted by terrorism and other more traditional crime, law enforcement has little time or energy left to address this issue. "One intellectual property lawyer told me that he was told by law enforcement that unless there was a dead body involved, 'don't even pick up the phone'" writes Phillips.
In its Canal Street raid, the Office of Special Enforcement followed an innovative "landlord-based" approach that targeted the estate of Vincent Terranova, the owner of three buildings that housed the illegal vendors. The estate had been named in an earlier lawsuit filed in the Federal District Court in Manhattan by luxury good brands such as Burberry and Marc Jacobs, according to the New York Times. Before the raid, undercover police officers and city agents made over 40 purchases of counterfeit goods. The city obtained a temporary restraining order against Terranova Properties which keeps the building closed until proof is provided that there is no more illegal activity.
"This is the largest operation we've done," said Office of Special Enforcement Director Shari Hyman.
However, most experts agree that ending, or at least limiting, the sale of counterfeit goods requires more than a law enforcement approach. The key is to challenge the widely held notion among consumers that buying counterfeit goods is a victimless crime and a harmless exercise in bargain hunting. "Until we deal with the demand side of the equation, it's a lost cause" said Joiner.
"We need consumers to help us instead of burying their heads in the sand," said Commissioner Ray Kelly in a press release. "No matter how 'victimless' a crime may appear, when you scratch the surface you are bound to find some unpleasant realities. That's true in the knock-off trade."
Arguments about lost tax revenues and jobs might not dissuade most individuals from buying a knockoff Gucci bag for $40 when the real thing can go for close to $2,000.
That's why advocates are trying to enlarge the discussion to a broader set of public health and safety issues. The goal is to "make the problem more real to consumers," said Joiner.
For example, according to the Office of Special Enforcement, the buildings housing the wholesale vendors often lack basic fire safety protections such as sprinkler systems. "These buildings violate every code in the book," John Feinblatt, the city's criminal justice coordinator, told the New York Times. "The exit signs are obliterated, or the fire exits are locked or blocked by boxes of merchandise. They're fire traps." In addition, for security reasons, customers are often carefully escorted in and out of buildings and locked into rooms while they search for items, making it a "frightening experience" according to Hyman.
Advocates also argue that knock-off goods, which are impossible to regulate, are also potentially life-threatening. Author Phillips called these "counterfeit killers," citing such examples as fake insulin used by diabetics and fake Lipitor, used by patients with high cholesterol levels. "Talking about medicine that can kill is a very different conversation than talking about the latest Britney Spears album," said Naim.
Anti-counterfeiting observers charge that counterfeit goods are often produced in factories that pay little attention to labor standards. "Raids in Asia in counterfeit plants disclose deplorable conditions that would boggle your mind," Lorne Lipkus of the Canadian Anti-Counterfeiting Network, told CBC News. "We're talking [about] four year old kids mixing chemicals in factories."
More broadly, advocates make a moral argument about counterfeiting, contending that what lies behind a seemingly innocent transaction with a street vendor could be a vast criminal enterprise. "The same groups which smuggle goods are also involved in prostitution, drug dealing and money laundering," Marc Ramondi, spokesman for the U.S. Immigration and Customs Enforcement Agency, told ABC News.
Still, it's unclear how widespread the counterfeit-criminal link is: The evidence presented tends to be anecdotal, perhaps a reflection of the shadowy nature of the business itself. The presence of the so-called "ghost" shift in many Chinese factories also points to an increasingly blurry line between knock off and "legal" manufacturing. Many of the social harms attributed to counterfeit production are also present when the rules are being followed, as evidenced by such high-profile cases as tainted pet food and reports of child labor in factories making Nike shoes.
Nonetheless, the Chamber of Commerce is actively wading into the public relations battle. They helped underwrite a documentary version of Naim's book Illicit, which will premier on public television on April 16. Naim hopes that the documentary will help spark a broader dialogue about the negative impacts of counterfeiting and illicit trade. "We need to change the conversation at dinner tables in America," he said. He sees the debate on global warming as analogous to what he wants to accomplish. "Five years ago, people talking about climate change were often laughed out of the room. Now it's skeptics who are getting the same treatment."
At the same time, business groups have responded by pursuing a number of new anti-counterfeiting strategies.
One approach involves technology. Kodak, for example, markets a "traceless" system that embeds invisible markers into labels that can only be detected by specialized readers. The technology is already being used by drug companies and high-end wineries to reduce fraud. "In fighting counterfeiting, it's better to call your scientists and engineers than your lawyers and lobbyists," Naim said.
The recording industry provides an interesting example of an attempt to target counterfeit consumers directly, though their experience defies any simplistic analysis. Industry groups have pursued an aggressive enforcement strategy, sending out thousands of so-called "pre-litigation" letters to college students illegally downloading music. The letters are first forwarded to universities, which are asked to pass along the information to students. The main impact of these letters has been the wave of publicity they have generated, particularly in campus newspapers. According to industry documents, the strategy has had an effect: The number of young people downloading music without paying has declined from 53 percent in 2004 to 30 percent in 2007, while the percentage of young people who say that downloading music for free is illegal has increased from 37 percent to 73 percent. According to surveys, fear of lawsuits is the reason most often cited by young people as the main reason they no longer download music or videos illegally - even though the likelihood of any individual being sued is very low.
It is still, though, relatively easy to download free music from the Internet illegally. Though the music industry succeeded in shutting down Napster, the most popular early distributor of pirated music, hundreds of smaller and harder to detect sites have grown up in its wake.
Fighting counterfeiting is an uphill battle, particularly when its victims lack the deep pockets of such groups as the recording industry. "The numbers are moving in the wrong direction," said Joiner. Ultimately, convincing bargain-loving New Yorkers that counterfeiting poses hidden costs may be a tough sell.
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It all started with a careless conversation between two police officers.
Last September, Brooklyn South narcotics officer Sean Johnstone told a fellow officer that he had paid his confidential informants with cocaine illegally seized from a crime scene. What Johnstone didn't realize, or had forgotten, was that his conversation was being recorded.
The ensuing internal police investigation has resulted in an embarrassing spectacle for the New York City Police Department and the Brooklyn South narcotics division, which includes Park Slope, Midwood and Coney Island and made 7,400 arrests in 2007. Four officers, including Johnstone, were arrested for illegally providing drugs or money to their confidential informants, while another dozen were suspended or transferred to other duties. The disclosures forced the Brooklyn District Attorney's Office to dismiss charges or vacate convictions in 183 cases, and a new commanding officer was appointed to run the department's narcotics unit.
The revelations focused attention, if only briefly, on the murky world of police and their informants. While giving informants drugs is clearly illegal, a far more contentious debate involves the use of confidential informants even when proper police procedures are being followed. Civil libertarians and legal scholars argue that the practice leads to false convictions, shoddy police work and an erosion of trust in high-crime, low-income communities. On the other hand, experienced prosecutors and police officers contend that, however distasteful the practice, informants are an invaluable investigative tool and that suggestions for reform would limit the effectiveness of the police while having the unintended effect of driving the officer-informant relationship further underground.
The scandal has given renewed life to legislation introduced last year by Brooklyn State Assemblymember Joseph Lentol, which would require law enforcement agencies to publicly disclose information about the use and effectiveness of confidential informants. The legislation would also limit the ability of prosecutors to drop or reduce certain types of charges in exchange for informant information.
Over the last 30 years, police departments have introduced safeguards in an attempt to protect the integrity of the narcotics enforcement process. With some notable exceptions, the kind of brazen corruption depicted in films such as "American Gangster" and "Serpico" appears to be a thing of the past.
Typically, undercover officers who seize drugs or money are not allowed to register the contraband on their own. Instead, a backup team of officers, with a supervisor, is supposed to lead the vouchering process.
Police departments also have procedures in place for the payment of confidential informants. To High Point, North Carolina Police Chief Jim Fealy, a nationally recognized innovator in narcotics enforcement, the "industry standards" include a careful accounting of the amount expended, along with a requirement that payment is made by no less than two officers. Often a supervisor will randomly accompany the officers to make sure the procedures are being followed and to confirm the informant's identify. At regular intervals, internal affairs officers will audit the books to confirm that all the information adds up.
These procedures appear not to have been followed in Brooklyn. According to reports, two of the four officers arrested on corruption charges in Brooklyn registered 17 bags of cocaine during a drug raid, instead of the 28 bags they had actually recovered, while the other two held back two bags of cocaine and $40. In both instances, the extra drugs and money were used to pay off informants - making it what a law enforcement official called "noble cause corruption."
Many observers expressed their bewilderment at the officers' actions. "Anybody who would do something like that is nuts - completely nuts," one former narcotics undercover officer told the New York Times. "Why would you give the [informant] crack and drugs if you can give them money?"
The most likely explanation is a combination of laziness and lax management. Two of the four arrested police officers worked the night shift, when there tends to be a more relaxed attitude toward procedures. Given the wholesale leadership changes in Brooklyn - four high-level police commissioners, including the head of the department's narcotics division, were transferred - appears that the New York City Police Department is laying a good portion of the blame at the feet of inattentive management.
"What it looks like to me is that these guys took a shortcut and shortcuts will get you in trouble and shortcuts will get you in jail," Raymond Abruzzi, a former high-ranking police officer, told the New York Times.
Fealy praises the department for dealing with the problem internally. "Even in a very good police department, occasionally bad things will happen" he said. "What citizens should look for is a police department that acknowledges [the problem] and deals with it."
Whatever the public thinks of the going-on in Brooklyn, many legal scholars and advocates believe that public outrage should be directed at the mundane, day in and day out grind of recruiting and employing informants, particularly in low-income, high-crime communities hit hardest by the drug trade.
Observers distinguish well-intentioned citizens who provide tips to the police from individuals who co-operate for less noble reasons. In their view, the police get in murky territory when they deal with individuals seeking to settle a score against a former boyfriend or business rival, bargain their way out of an arrest or make a little money. That said, it's almost impossible to prosecute certain types of cases, particularly narcotics cases, without turning to informants who are looking for a break or a buck. "It's not the only way, but it's the easiest way to gain access" to drug markets, said Fealy.
Little is known about the number of informants employed by law enforcement agencies. At the national level, the Federal Bureau of Investigation reports that it employs 15,000 secret informants and the Drug Enforcement Administration about 4,000 at any given time. State and local law enforcement agencies do not report similar information publicly, though most departments, including New York's, keep internal databases that track contacts with informants.
This lack of information has led to widely varying estimates of the total informant population. Loyola Law School Professor Alexandra Natapoff figures that one in 12 black men in poor black communities are active informants at any given time, although she acknowledges that can vary widely from one city to another.
"In some cities, if you believe what the police and prosecutors say, it's not in the culture to use snitches," she said, "while in other places, it's absolutely par for the course."
Experienced law enforcement officials dispute that finding, at least at the local level. For example, Lt. Rudy Tai of the San Diego Police Department, who worked as a supervisor in a narcotics unit, estimates that the average narcotics officer works with between one and three informants.
Generally, federal law enforcement agencies seem much more likely to rely on informants than do local agencies. Under federal sentencing guidelines, cooperating with authorities is the only recognized basis for sentencing leniency, and according to Natapoff, approximately 20 percent of federal offenders -- 30 percent of drug defendants -- received credit for cooperation. And these percentages understate the total volume, because many informants do not receive credit for their information and others have their charges dropped before they reach court.
Local law enforcement agencies are much more cautious about the use of informant information, and many do not allow informants to testify in court. Instead, they are more likely to ask informants to help make a case, such as by introducing an undercover officer to a drug dealer. Experienced officers say that the key is getting independent verification of the information provided.
Critics argue that an excessive reliance on informants leads to lazy police work and has poisoned relationships with residents of low-income, high crime neighborhoods. In the online journal Slate, Alexandra Natapoff wrote that in one view, "criminal snitching is a Frankenstein's monster that has turned on and begun to consume its law enforcement creator."
Natapoff cited one case dropped by prosecutors after the Brooklyn South scandal erupted. An undercover officer had purchased large amounts of cocaine from a dealer, who was later arrested. However, the undercover team working on the case failed to get the drug sale on videotape. When the prosecutor realized that one of the officers involved in the corruption scandal was on the team, she was forced to drop the case.
"The ease of using informants has undermined other traditional law enforcement techniques like undercover work and surveillance," said Natapoff.
Law enforcement officials bristle at that characterization. "I don't see [using informants] as lazy policing," said Fealy. "What are we supposed to do, ignore the information they give us?"
Establishing the bona fides of a confidential informant can be painstaking, requiring a background check and a "test run" purchase of drugs or guns. "A lot of detectives would rather not be involved with informants because it takes a lot of hard work," said Tai. "It's a challenge to recruit good ones."
Many police officers and prosecutors, however, express qualms about aspects of the relationship with confidential informants. They realize that even the small amounts of cash they give informants are often used to buy drugs. Another troubling dynamic is that the police may overlook crimes committed by informants. "Informants may well produce more criminal activity on any given day than they prevent," wrote Natapoff.
The swirl of charges and counter-charges about the use of confidential informants may obscure a counter-intuitive reality about policing in urban communities. Despite skyrocketing incarceration rates, particularly of young African-American men, the problem confronted by most citizens in high-crime areas is police under-enforcement of the law, not over-enforcement. That dynamic was particularly evident in sociologist Sudhir Venkatesh's recent book Gang Leader for a Day: Despite spending nearly a decade hanging out with a drug gang in a Chicago housing project, Venkatesh rarely encountered the police.
To Natapoff, police use of confidential informants contributes to the under-enforcement problem, because the police regularly tolerate the criminal behavior of informants. One could, of course, also reach the opposite conclusion: Abandoning or curtailing the use of confidential informants could make the police even less effective in communities that need them the most.
Deciding which view is correct is difficult because so much about informants is, of necessity, hidden from public view. "It's all hidden," said Ellen Yaroshefsky of the Benjamin Cardozo Law School. "Confidential informants are like the black hole of the criminal justice system."
Lentol's proposed legislation would require law enforcement agencies to publicly disclose information about confidential informants, including the number employed, whether the tips provided led to a conviction or arrest and instances in which prosecutors offered to reduce or drop charges in exchange for cooperation. Individual informants would not be named. In theory, the "sunshine" provisions would give the public the chance to test the claims made by supporters and critics of the practice.
Still, it can be an uphill battle to convince the police of the value of openness and accountability. "I've had well-meaning police officers tell me, 'you're never going to get the police to report their snitches'" Natapoff said. "It's a reasonable concern. We have to give them room to do their job."
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When Emily May set up the Web site Holla Back with six friends in October 2005, she didn't expect much response.
"We thought, 'Wow, this is a cute idea,'" said May.
Inspired by Thao Nguyen, whose decision to snap a cellphone picture of a subway rider masturbating led to a high-profile arrest and prosecution, Holla Back gives visitors, mostly women, a forum to post photographs and stories about their experiences being groped, catcalled or otherwise sexually harassed in public.
It didn't take long for the Web site to catch fire. "It was wild," said May. "All of these women were coming out of the woodwork." TV stations and local media started calling, and May appeared on the Good Morning America, the Today Show and CNN. Holla Back was profiled in several local newspapers. More than two years later, the site is still thriving, receiving about 1,500 visits a day, according to May. Fifteen different Holla Back sites have been established nationwide, with another in South Korea.
Holla Back gives New Yorkers a forum for expressing frustration about street and subway harassment of women. At the same time, a growing groundswell of anecdotes, opinions and outrage is beginning to reach the attention of government. For example, in December, the City Council passed legislation, sponsored by Councilmember Peter Vallone Jr., that upped penalties for repeat flashers, or individuals convicted more than once for public lewdness within a three-year period, from $500 to $1,000, and from 90 days in prison to a year.
Little is known about the precise extent of harassment, despite an avalanche of anecdotal information and some small-scale surveys. And debate continues over what role, if any, government should play in regulating the behavior. Advocates hope that laws like the one passed by council last month at the very least will stigmatize behavior that has long been accepted or at least tolerated. Others challenge the harm that is posed by harassment, likening it to harmless flirting. And some fear that the enforcement of laws against harassment and flashing will be unfairly directed at gays and racial and ethnic minorities.
Street and subway harassment is anonymous: In almost every case, the harasser and the person being harassed do not know one another. The harassment itself ranges from rude and prolonged stares and inappropriate comments to behavior that can create fears of sexual assault. Women feel threatened by this, partly because they have no way to determine the intentions of the harasser - whether he is a "good guy or not" in the words of Emily May. Even rude comments can be traumatizing, particularly for rape victims. (According to the United States Department of Justice, one in six women have been raped at some point in their lives.)
Many observers believe that street harassment is essentially a "power trip" designed to put women in their place, a reaction to broader social changes in which women enjoy more freedom and work opportunities than previously. "It's a mechanism designed to reinforce [traditional] status hierarchies," said sociologist Laura Beth Nielsen.
In a rare attempt to quantify the frequency of street harassment, Nielsen interviewed 100 subjects (including some men) in the Bay Area. Fully 62 percent of the women reported experiencing offensive or sexually suggestive comments "every day" or "often." An additional 28 percent said they heard comments "sometimes." Only 10 percent of the women she interviewed said that they "never" heard comments.
In July 2007, Manhattan Borough President Scott Stringer issued a report on sexual harassment and assault in the New York City subways. Sixty-three percent of survey respondents reported being sexually harassed on the subway, and 10 percent said they had been sexually assaulted. About half said they felt the threat of sexual assault and/or harassment on the subway "sometimes or frequently."
Critics assailed the survey's methodology. It relied on self-reporting (individuals were invited to fill out the survey on-line and only a fraction of those invited did so), which may have inflated the findings. The New York Post was particularly harsh, dismissing it as "The Beep Who Cried Wolf." Even the Wall Street Journal weighed in on the topic, calling it a "Dubious Survey on Subway Safety."
While the criticisms were somewhat valid, the report generated a huge amount of attention. A story on the subject at the New York Times blog "City Room" received 163 comments, far more than the 5 to 25 comments that blog entries typically generate.
Reliable information about the nature and extent of street and subway harassment is almost impossible to come by. "There's no research out there," said May. "We don't know how often it happens or who it happens to." The result, according to May, is that "women think it's their fault. They say to themselves, 'If only I wasn't walking there.'"
Stringer believes the government must do a better job of collecting information. "The city has gotten very good at going after crime that it quantifies, so the first step should be tracking sexual harassment and assault in the subway as its own category of crime," Stringer wrote in an email message. "Having that information will allow us to raise the profile of these crimes, demand more of a response from the police and the MTA [Metropolitan Transportation Authority], and create a public service campaign that embarrasses the perpetrators and empowers victims to move beyond fear to outrage." His report recommended the establishment of a hotline for subway riders to report incidents of assault and sexual harassment, citing findings that the overwhelming majority of victims don't bother to report incidents to the police.
Regardless of how widespread harassment is, what can government do about it?
Even efforts to target relatively straightforward behavior such as public lewdness have proved controversial. "It's a struggle for government to regulate public space, because you almost always capture people acting innocently" or for reasons other than those contemplated by the law, said Vallone.
His bill is a case in point: It was criticized by gay right groups who argued that the police use public lewdness laws to target gay men who have sex in public. An enterprising reporter from Gay City News, Duncan Osborne, obtained records of 359 public lewdness complaints filed in the city and found that a small number involved police operations in locations that gay men frequent for sex. (While some may argue that prohibiting public sex is a legitimate government activity, it wasn't the express purpose of the legislation.) In response, Vallone agreed to limit enhanced penalties to "serial flashers" arrested more than once for the same offense in a three-year period.
In the 1980s, transit police falsely arresting black and Hispanic men for what was then called "bumping" in the subways in an attempt to raise their productivity and earn promotions. The pattern of arrests created an uproar. "It's extremely hard in a crowded subway station to tell right from wrong when somebody is up close to somebody else," Richard Emery, a lawyer who represented the falsely accused men, told the New York Times.
The challenge of targeting street and subway harassment becomes even more difficult when you move from behavior (such as flashing or groping) to speech. The first constraint is constitutional: The Supreme Court sets a very high bar against government intervention. Essentially, the government can regulate only speech that is clearly intimidating, rather than merely offensive. In addition, regulations have to be applied in a "content neutral" fashion that does not target particular kinds of speech. In practice, the court has generally struck down laws aimed at racist or sexist speech, but has upheld laws that restrict panhandling, another form of potentially offensive public speech. In her study, sociologist Nielsen suggests this reflects a judiciary that is largely male and thus unfamiliar with the problem of street harassment. About two thirds of the men in her survey reported rarely or never hearing offensive or sexually suggestive comments directed at other people.
Nielsen herself has a nuanced view of government intervention of sexist speech. In her interviews, she found little support for an expanded government role, even among men and women who believed strongly that sexist speech is offensive and morally wrong. White men tended to cite the First Amendment to support their position, but white women and people of color used a much more pragmatic calculus. In essence, they believed that policing sexist speech would either not work or would backfire on its intended beneficiaries. In other words, women doubt that government is the answer to the problem of sexist speech. Nielsen, though, believes that changes in law would have an "important symbolic effect." New laws, she said, would help women make the case that harassment "doesn't just suck, but is illegal."
Whatever the legal pitfalls, advocates think awareness of harassment has increased. "The important thing is that this is no longer a secret conversation between women," said documentary filmmaker Maggie Hadleigh-West. Her 1998 documentary, "War Zone," in which she interviews men who harass women, has enjoyed an unusually long life. She traveled to Egypt this year to show the film, and it is used routinely for training by the U.S. Department of Defense. "The positive part is that it's now being recognized culturally as a problem," she said.
Inspired by "War Zone," a group of young women organized an anti-street harassment campaign in Brownsville, Brooklyn, developing posters and creating a "harassment-free zone" in their neighborhood. "We work with the girls to own up to their own comfort zone and identify what they think is harassment," said Joanne Smith, the executive director of Girls for Gender Equity. "A lot of them end up being comfortable telling people, 'I don't like this.'"
Of course, there are limits to the self-help approach: In one highly publicized incident, four women were arrested for attacking a man in Greenwich Village they accused of harassing them. One woman stabbed the man in the abdomen with a steak knife she carried in her purse. While vigilantism is one concern, a more practical concern for most women is whether confronting their harasser will expose them to more danger.
To Emily May of Holla Back the most effective approach is education: letting men know that women cannot distinguish a harasser who is basically harmless from one who is genuinely threatening. "I think [a lot of] men really don't understand what they're doing when they harass women," she said. "If they understood that street harassment was scary, they wouldn't do it."
Aubrey Fox is project director of Bronx Community Solutions, aimed at changing the Bronx court system’s approach to low-level crime. Â
While New Yorkers applaud the police for the drop in crime and are generally satisfied with police performance, many city residents firmly believe the police use race as a factor in deciding who to stop on the streets. In a survey taken in 2000, 62 percent of respondents said they believed the police racially profiled. This included 79 percent of blacks, 66 percent of Hispanics and 51 percent of whites.
But a recent study challenged such deeply held notions, largely exonerating the New York City Police Department of explicit racial bias in who officers stop and sometimes frisk. Despite its nuances and subtleties, the study – which received widespread press coverage, including a front page article in the New York Times –provides the police department with powerful statistical ammunition to back its claims that the high proportion of racial minorities stopped by the police in 2006 (89 percent of all stops) reflects the differing crime rates among races, not overt bias.
Civil libertarians and other law enforcement critics struck back, taking aim at the report's methodologies and conclusions. One critic called the report "full of disinformation" and "comprised of endless excuses [and] statistical justifications," according to the New York Daily News. Partisans on the right jumped into the debate as well, with conservative pundit Michele Malkin (among others) accusing the New York Times of playing down the study's pro-police conclusions.
Underlying the partisan debate are some legitimate questions about the statistical techniques used by the study's authors, as well as the police department's refusal to release key data to the public. Perhaps equally important, media accounts have tended to play down the modest concerns raised in the report about police tactics and its recommendations for change. Finally, the study was not designed to answer a central question that all New Yorkers must grapple with: How can we balance the kind of aggressive policing that promotes public safety with the need to maintain trust and confidence in the police, particularly among racial and ethnic minorities?
The raw statistics released by the police department in February 2007 were stark: Over 500,000 pedestrians were stopped by the police in 2006, an almost five-fold increase in the number of stops recorded five years previously. Equally troubling was the racial breakdown of the stops themselves. Non-whites represented 89 percent of individuals stopped, with blacks, who comprise 24 percent of the city population, accounting for 55 percent of stops. In addition, 45 percent of black and Hispanic people stopped were frisked, compared with 29 percent of white suspects -- even though the police were 70 percent more likely to recover guns from white suspects.
The police insisted that the racial breakdown of the stops was justified, pointing to statistics showing that blacks represented 68 percent of suspects identified by victims and witnesses. In the department's view, the racial breakdown of stops was driven by patterns of crime, not racial bias. The stops might also reflect the allocation of police – more police officers are deployed in high-crime neighborhoods that tend to have high proportions of non-whites.
Faced with widespread public criticism and threats of a class action lawsuit by the Rev. Al Sharpton, Police Commissioner Ray Kelly turned to a nationally respected think tank, the Rand Corp., to examine the stop and frisk reports – known as "UF250s" – filled out by police in 2006. The UF250s record detailed information about each stop, such as its location, the time of day it took place and the reason for the stop, as well as post-stop outcomes, such as whether the stop resulted in a search, the discovery of a weapon or an arrest. The challenge for Rand in looking at the data would be to separate stops driven by legitimate public safety concerns from stops driven by illegitimate racial bias.
To analyze the stop data, the Rand researchers used a controversial, though generally accepted, statistical technique knows as benchmarking. To do this, they first analyzed the data to predict how the police would behave if they were not acting in a racially discriminatory model. Then, they compared what actually happened with the benchmarks to determine if there was a pattern of racial bias. Using this method, the researchers found that blacks were stopped in rates comparable to their share of arrests and 20 to 30 percent less often than descriptions of crime suspects by race would suggest. Interestingly, the report found that Hispanics were "overstopped" by between 5 and 10 percent relative to their share of arrestees and crime suspects.
Benchmarking, while commonly used, has limitations. "All benchmarks have problems," said the lead author of the Rand report, Greg Ridgeway. "They're really just ways at poking at the data."
For example, according to Ridgeway, relying on arrest data as a benchmark does not necessarily eliminate racial bias. If the police are biased in their arrest decisions then the benchmark will be fundamentally flawed. To avoid this, Ridgeway prefers to use the reports made by victims and witnesses of alleged crimes because those come from average citizens and not police officers. But that approach has a shortcoming too: Only 20 percent of stops are made in response to report made by a crime victim or witness.
In preparing his report, Ridgeway also examined stop outcomes – such as a search, an arrest or issuance of a summons, the use of force or the recovery of a weapon or drugs – to see if he could detect any pattern of racial discrimination there. As with the stop analysis, benchmarking would be critical. The technique he used was relatively sophisticated. Whites, on one hand, and blacks and Hispanics on the other tend to be stopped for different reasons, including at different times of day, in different precincts and for different types of crime. To correct for that, Ridgeway compared the post-stop outcomes of "similarly situated" stops for white citizens and for black and Hispanic ones. The goal was to compare apples to apples: Stop outcomes would be matched according to time of day, location, type of suspected crime and a host of other factors.
Here Ridgeway found small but significant differences. According to the analysis, non-whites were frisked in 33 percent of stops, compared to 29 percent of similarly situated whites. Police were somewhat more likely to use force on black pedestrians than white pedestrians, but white suspects were slightly more likely to be issued a summons than similarly situated non-whites (5.7 percent versus 5.2 percent), while arrest rates for white suspects were slightly lower than for non-whites (4.8 percent versus 5.1 percent).
While these differences are small in percentage terms, they translate to large numbers of people given the high volume of stops. A two percent difference in frisk rates for black pedestrians relative to whites translates to 5,350 "extra" frisks for blacks per year. The same is true for use of force. The report estimates that there were 2,000 more use of force incidents with black pedestrians than non-blacks. These differences in frisk and use of force rates were particularly pronounced in Staten Island. For example, police in Staten Island used force in 13.5 percent of stops of black suspects, but only with 10.1 percent of similarly situated white suspects.
To Ridgeway, many of the differences in post-stop outcomes, with the exception of those reported in Staten Island, while worrisome, do not indicate a system that is "out of whack and needs restructuring." "These types of differences, with the exception of Staten Island, don't call for a complete overhaul of procedures," he concluded.
Ridgeway's analysis of arrest data, broken down by precinct are, almost identical to the method used in a 1999 study performed by then Attorney General Eliot Spitzer. The Spitzer study, which found that blacks were stopped 23 percent more often that whites and Hispanics were stopped 39 percent more often than whites.
There were some important differences between the Rand and Spitzer reports, however. In the Spitzer study, researchers examined a sample of 5,000 UF250 forms that included a space for the officer to describe the reasons for the stop. Using the standard set by the United States Supreme Court for permissible stops, researchers determined that 61 percent of stops met the legal standard and15 percent did not. In the remaining 24 percent, they did not have enough information to make a determination. Using that information, they found that 1 in 7 legally justified stops led to an arrest, compared to only 1 in 29 stops where the legal standard was not met. Although the rate of unreasonable stops was roughly equal for whites and non-whites, this was a provocative finding, suggesting that the police would be more "efficient" if they only stopped pedestrians for a narrow set of reasons. Rand was unable to repeat this analysis because the newer UF250 eliminated the place to explain the stops.
The Rand report received widespread coverage in local newspapers. Despite the subtleties of the study, the headlines were unambiguous for the most part: "'Profiling' Study Gives NY All Clear" read the New York Post. Other newspaper left out the nuances as well. The Daily News: "Review says half-million NYPD stop-and-frisk cases not racial profiling." Newsday: "Study Downplays Bias in NYPD Stop-Frisk policy." Only the New York Times headline was more measured: "City Police Stop Whites Equally but Frisk Them Less, a Study Finds."
Civil libertarians were quick to dispute the study's findings. Both the Center for Constitutional Rights and the New York Civil Liberties Union criticized the report's methodology, although neither organization suggested an alternative other than relying on census data.
Beyond the report, critics fault the police for their apparent unwillingness to share the UF250 data more generally with the research community. Current city law requires the department to report stop-and-frisk data to the City Council on a quarterly basis. Citing technical difficulties, the police did not report data from 2004 and 2005. More galling to researchers and advocates is that the council had access to only a limited set of the 2006 data, preventing researchers from independently confirming the Rand analysis. "It would be wonderful if the data were a public resource," said Jeffery Fagan, a researcher at Columbia University who worked on the Spitzer report.
For his part, Ridgeway expressed surprise at the media reaction. "I thought it tended to say that the report was giving the NYPD a clean bill of health, and I don't think that's what the report was saying at all" he said.
Ridgeway has had to fight his own battles with the media. An op-ed he prepared for the Daily News with colleague K. Jack Riley was initially given the headline "Police Stop Black New Yorkers More – and with Good Reason" before it was changed to "Police Need to Do a Better Job of Explaining Stop-and-Frisk."
Meanwhile the recommendations made in the report about improved police stop and frisk procedures seem to have gotten lost. Although many of Ridgeway's recommendations were procedural in nature, other recommendations, if implemented, would have a big impact on citizen interactions with the police. In addition to recommending a closer look at police operations in Staten Island, the report calls for the police to be required to clearly explain the reasons behind their action to anyone they stop. Ridgeway argues that police officers should also give each stopped pedestrian an information card with contact information in case they want to file a complaint. The recommendation is based on an emerging body of social science research that suggests that people care more about whether an interaction with law enforcement is fair than the result of the interaction itself. "Just giving information can help defuse things," said Ridgeway.
The report also discusses how to deal with individual officers with higher-than-normal stop and frisk rates. Ridgeway devoted an entire section of his report to a process called "internal benchmarking," which compares the stop rates and post-stop outcomes of individual officers against similarly situated officers. As with the other benchmarks, the goal here is to predict how a police officer, who is not racially biased, would act and compare that to the actual performance of individual officers. Using this technique, Ridgeway identified five officers who stopped more black suspects than expected and ten officers who stopped more Hispanic suspects. (The report also identified nine officers who stopped substantially fewer black suspects than expected and four officers who stopped substantially fewer Hispanic suspects.) In Cincinnati, where Rand pioneered the internal benchmarking technique, supervisors meet with identified officers to determine if there are legitimate reasons for the disparities.
Ridgeway says he verbally presented these recommendations to Kelly two weeks before the written report was submitted. Although it's not clear if the recommendations will be implemented, Kelly told the New York Times that he plans to "put in place what we think is appropriate as quickly as possible."
Critics of the NYPD generally have been cool to internal benchmarking and said little about the other recommendations in the report, largely because they believe its focus is misplaced. Stop and frisk policy "is set at the precinct level, not the individual police officer level," said Columbia law professor Jeffrey Fagan. The fear is that stop and frisk will be reduced to a problem of a "few bad apples, rather than a system-wide problem," said Kamau Franklin, a racial justice fellow with the Center for Constitutional Rights.
The report was not designed to address the effectiveness of stop and frisk as a policing strategy. Even the department's critics generally agree that aggressive stop and frisk strategies used to take illegal guns off the streets in the 1990s played a role in the city's historic crime drops. However, they wonder if the five-fold increase in recorded stops over the last five years – which could be partially attributable to improved recordkeeping – is justified in a city with relatively stable crime rates. "It's an astonishingly high number of interactions," said civil rights attorney Andrew Celli, who oversaw the 1999 Spitzer report as the chief of the Civil Rights Bureau in the attorney general's office. "How effective and how useful at combating crime is this kind of police activity?"
That's difficult to determine. Even the widely cited statistic that only 10 percent of stops result in a summons or arrest is open to interpretation, according to Ridgeway. He described riding along with police officers and a victim who had been assaulted by three individuals. The police stopped three groups of men before they found the assailants. Even though six of the nine individuals stopped were innocent, it's hard to criticize the police response, Ridgeway said.
One seemingly intractable problem involves the gulf between those who have experienced - or believe they have experienced -- a racially biased and intrusive police search and those who have not. No matter what the official rationale for a race-based stop, it is a traumatic experience. It causes "fourfold harm" in the words of William Stuntz, a legal theorist, because it raises the threat of physical violence, stigmatizes the individual by treating them like a criminal, violates their privacy and singles them out on the basis of their skin color. It is difficult to imagine that any statistical analysis, no matter how sophisticated, can convince a person who experienced an intrusive search that the police were acting in good faith. Scholar Michael Tonry has put it another way: Regardless of whether the criminal justice system is acting in a biased way (Tonry believes it is not), black men in particular have borne the brunt of police suspicion on the basis of race.
It seems clear, then, that the Rand report will not quiet the debate about the effectiveness of aggressive police strategies. Dueling stories from late November suggest the ongoing dynamic: The police release statistics showing that murders have been reduced to a 40-year low; at the same time, the number of suits filed against the police and grievances submitted to the Civilian Compliant Review Board, an independent police watchdog agency, continue to rise.
Aubrey Fox is project director of Bronx Community Solutions, aimed at changing the Bronx court system's approach to low-level crime.
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Every once in a while a case arises in the law that seems ordinary and unlikely to change law or policy or mean much to anyone but the individuals directly involved. These can be little cases that become big because of determined litigants and tenacious lawyers who keep challenging until they are heard. People v Matthew Jones is one of those rare cases. When Jones, 19, was arrested on West 43rd Street in Manhattan, at 2:01 a.m. on June 12, 2004, he could not possibly have expected that the case resulting from his arrest would three and a half years later reach the highest court of the State of New York.
But the case of People v Jones did go to the highest court, the Court of Appeals. That court has now unanimously decided that legally, it was not Jones' conduct that was the problem, but rather the arrest itself and the language used to describe the event.
Jones, who had no criminal record, was accused by the New York City police of disorderly conduct, a violation of the Penal Law. Because he ran from the police, he was also charged with resisting arrest, a misdemeanor. Police handcuffed Jones, placed him in the back of a patrol car and took him into custody. After a night in a police precinct, hours spent in central booking, a round of fingerprinting and posing for mug shots, and dining on a baloney sandwich while locked up in the "pen" of Criminal Court at 100 Centre Street, Jones appeared before Judge Abraham Clott for arraignment and notification of the formal charges against him.
The charge against Jones was that "with intent to cause public inconvenience, annoyance and alarm and recklessly creating a risk thereof, [he] obstructed vehicular and pedestrian traffic." The arresting officer further stated that, "he observed defendant along with a number of other individuals standing around at the above location, to wit a public sidewalk, not moving, and that as a result of defendants' [sic] behavior, numerous pedestrians in the area had to walk around defendants [sic] ... Deponent [the police officer] directed defendant to move and defendant refused and as deponent attempted to stop defendant, defendant did run." Translation: Matthew Jones was standing on a public street and did not follow police orders to move (though he apparently did run).
The attorney appointed to represent Jones, Eric M. Dorsch of the Legal Aid Society, asked Judge Clott to dismiss the case. Dorsch argued that the charges -- Jones' presence on a public street -- were insufficient. That is, the written allegations failed to establish a prima facie case that Jones had committed a crime or violation of the Penal Law.
Dorsch argued that accusations contained in the information, the type of complaint issued against Jones, lacked the factual allegations of what his client had done to constitute criminal conduct. The information must give the defendant specific notice of how he or she broke the law.
The Criminal Procedure Law requires that this written accusation provide reasonable cause to believe that the defendant committed the offense charged. In this case, the acts committed by Jones and observed by the arresting officer allegedly were intended to cause public inconvenience, annoyance or alarm or could created a risk by obstructing vehicular or pedestrian traffic. But nowhere did the papers say what exact acts led to the arresting officer's conclusions.
Judge Clott, however, denied dismissal. Jones then agreed to plead guilty to disorderly conduct with a sentence of "time served," meaning the time he had already spent in jail, without any further penalty. In exchange for the guilty plea, the charge of resisting arrest, a class A misdemeanor punishable by up to a year in jail, was, as is typical, dismissed.
Most defendants enter pleas of guilt, which are the same as convictions after trial. Since every year thousands of cases end with guilty pleas at arraignment, this might have been the end of People v Matthew Jones. Here, however, the Legal Aid Society continued to make its arguments. Nancy E. Little of the Legal Aid Appeals Bureau took issue to the Appellate Term, which hears cases arising in the Criminal Court. There, two out of three judges agreed with Judge Clott who had found no defect in the arrest and charges, and affirmed his refusal to dismiss.
That still was not the end of it. Little continued up the appellate ladder, taking the challenge to the Court of Appeals in Albany where all seven judges of the state's highest court agree that the conviction resulting from Jones’ guilty plea guilt had to be reversed and all charges dismissed.
" Something more than a mere inconvenience of pedestrians is required to support the charge," wrote Judge Carmen Beauchamp Ciparick, who is from New York City and began her judicial career as a judge of the Criminal Court. "Otherwise, any person who happens to stop on a sidewalk -- whether to greet another, to seek directions or simply to regain one's bearings -- would be subject to prosecution under this statute.”
Citing a 1928 case holding that those congregating on the street display "atrociously bad manners" by "discommoding some other persons," Ciparick's opinion said such conduct alone does not necessarily give rise to disorderly conduct. In other words, the court concluded that "nothing in the information indicates how defendant, when he stood in the middle of a sidewalk at 2:01 a.m. had the intent to or recklessly created a risk of causing "public inconvenience, annoyance or alarm." Therefore, no prima facie case of disorderly conduct was spelled out and therefore the courts lacked jurisdiction or the power to consider the case, because legally, there was no case.
In addition, the court found the prosecution could not say a man broke the law by standing on a public street without stating what he did to warrant an arrest. There were no facts to support the charges. In the future, police officers, prosecutors and judges will have to adhere to the principals set out in People v Matthew Jones. The police will have to write up more specific charges and cannot say that the basis for an arrest was that a person was simply standing on the street, or even being "annoying" without saying what exactly was done.
Once the disorderly conduct charge fell, so did resisting arrest charge. Jones could not be resisting arrest if the arrest was not proper in the first place. Resisting arrest requires that "a person is guilty ...when he intentionally prevents or attempts to prevent a police officer ... from effecting an authorized arrest of himself or another person." And this was not an authorized arrest.
The office of the Manhattan district attorney, which prevails in the vast majority of appeals from cases it prosecutes, had battled the Legal Aid Society in order to uphold both the disorderly conduct count and the charge of resisting arrest. Having succeeded in two lower courts in its case against Matthew Jones, the office of Robert Morgenthau, represented on appeal by Paula-Rose Stark, received an unusual defeat when the Court of Appeals vacated the conviction and threw the case out.
Dorsch, the lawyer originally assigned to represent Jones at his one and only court appearance, has left the Legal Aid Society and is now first deputy executive director of the Civilian Complaint Review Board, which rules on cases of allege police misconduct. In that capacity, he has been reviewing the Court of Appeals opinion in People v Matthew Jones in connection with possible future citizen complaints to the board. Dorsch, though, had handled too many "discon" (disorderly conduct) charges, to remember this one in particular. It was only during a telephone interview for this column that Dorsch learned, that according to court transcripts, the lawyer for Jones who, at the arraignment three and a half years before, had made the motion to dismiss and so laid the groundwork for Little’s appeal and the unusual result, was Eric M. Dorsch. Jones has not filed a complaint with the board, and there has been no civil lawsuit.
Emily Jane Goodman is a New York State Supreme Court JusticeÂ
Eugenio Cidron drank so much at a party at Chelsea Piers last December that he mistook the bike path along the Hudson River for the West Side Highway. After driving his silver BMW for a mile along the greenway, he plowed into Eric Ng, an avid bicyclist, and killed him.
Earlier this month, Cidron, a first-time offender, pleaded guilty to a second-degree manslaughter charge. At sentencing, he faces between 3 and a half and 10 years in prison. Ng’s friends and family are left to grieve his death. “He was just a real joyous, smart, sweet good person,” Ng’s friend Ryan Nuckle told the New York Times.
Eric Ng is one of 463 New Yorkers who were killed by drunk drivers in 2006, according to the National Highway Traffic Safety Administration. Last year, over 13,000 individuals were killed across the United States by drivers who were legally drunk. To put that number in perspective, a total of 3,866 American military have been killed to date in Iraq, according to antiwar.com.
In recent years, New York State has passed a series of strict new laws that increase penalties for drunk driving and provide alcohol and substance abuse treatment for first and second-time offenders. Perhaps as a result, the state has modestly reduced the number of drunk driving deaths, with alcohol-related fatalities in New York declining by 5 percent from 2005 to 2006. New Jersey had a 13 percent increase during that same period. Nationwide, drunk driving deaths have remained relatively constant since 1999, frustrating government officials, public health experts and advocates.
At the same time, advocates like Mothers Against Drunk Driving believe that New York could be even more aggressive in keeping repeat drunk drivers off the road by following states like New Mexico, which requires that all convicted offenders have ignitioninterlock systems in their cars. These systems keep the car from starting unless the driver breathes into a breathalyzer device and is not drunk. Advocates would also like to move the focus from prosecution of drunk driving offenses to prevention. This poses a major challenge since a majority of alcohol-related traffic fatalities involve a driver, like Eugenio Cidron, with no prior drunk driving arrests.
The bottom line is that even more dramatic steps might have to be taken to tackle the problem of drunk driving. What is less clear is whether the political will exists for such fundamental change.
In the last two years, New York has passed tough new legislation against drunk driving. On November 1, new felony penalties for aggravated vehicular homicide and aggravated vehicular assault went into effect. These allow judges to put drunk drivers in jail for up to 25 years in cases involving vehicular homicide and 15 years in cases involving vehicular assault. The changes also expand the use of ignition interlock devices. This law does not apply to Eugenio Cidron, who was arrested before it took effect.
More sweeping legislation passed in 2006. It included a tougher penalty for those who refuse to take a police-administered breathalyzer test, along with a requirement that offenders with a blood alcohol content of above .18, well above the .08 threshold that defines intoxication, install an ignition interlock system while they are on probation.
In addition, the law requires that every person arrested for driving while intoxicated be screened or assessed for a drug or alcohol abuse problem before their case is resolved. Drug treatment is mandatory for those who test positive and are not sentenced to jail. The goal is to “cast a treatment-centric net over the population of [driving while intoxicated] defendants,” says Michael Yavinsky, the chief court attorney for the Criminal Court of the City of New York.
These new measures come on the heels of over 25 years of aggressive public policy measures designed to tackle drunk driving. For the first two decades, the result was nothing less than a public health miracle.
In 1982, 26,173 Americans died in alcohol-related traffic crashes, according to the National Highway Transportation Safety Administration. By 2002, the number dropped to 17,448 deaths, a 30 percent decrease.
Raw numbers don’t tell the whole story, however. Adjusting for the total number of miles driven, deaths dropped from 1.64 per 100 million vehicle miles traveled in 1982 to .63 in 2002. New York’s rate is about .50 deaths per 100 million vehicle miles traveled.
This means that more than 150,000 drunk driving deaths were prevented in a 20-year period, according to Ralph Hingson, director of the Division of Epidemiology and Prevention Research at the National Institute on Alcohol Abuse and Alcoholism. “That’s more than the combined effect of safety belts, air bags, and motorcycle and bicycle helmets,” says Hingson.
Hingson attributes this success to two factors: the rise of advocacy groups like Mothers Against Drunk Driving and the development of a “body of scientific literature” that documents what works and what doesn’t in preventing drunk driving.
MADD was launched in 1980 by a California woman, Candy Lightner, after her 13-year old daughter was killed by a drunk driver. At the time, 60 percent of all driving deaths were alcohol-related, yet lax social norms about drinking and driving created a “wink and nod” attitude about the problem. As the organization grew – by the end of 1984, MADD had 330 chapters in 47 states – it created a powerful constituency for change. That year, MADD helped persuade President Ronald Reagan to sign the Uniform Drinking Age Act, which denied federal highway funding to states that did not raise their legal drinking age to 21.
Another development that would prove critical was the establishment of the Fatality Analysis Reporting System by the National Highway Traffic Safety Administration in 1975. With this system, every person involved in a fatal car accident is tested for alcohol and drug use. Using the collected data, public health experts can make state-by-state comparisons over time, as well as test the effectiveness of new enforcement initiatives. For example, reporting system data was used to predict that increasing the drinking age from 18 to 21 would result in 700 to 1,000 fewer drunk driving deaths per year. In addition, advocates like MADD use the information to shine a spotlight on states slow to change laws and public attitudes.
MADD’s longest campaign involved convincing state legislatures to lower the legal standard by which a person is defined as intoxicated, from .10 to .08. According to MADD, a 170-pound man who has four drinks in an hour on an empty stomach would have a blood alcohol level of .08.
States were slow to adopt the new standard. Only six states had changed the law by 1990.Then in 2000, President Bill Clinton adopted the new standard nationwide: As with the Uniform Drinking Age Act, states had to comply with the new level or risk losing highway funding. New York complied by November 2003, one of the last states in the country to make the change.
After these advances in the 1980s and 1990s, progress stalled. The number of alcohol-related driving fatalities (which includes anyone with a drink in their system, regardless of whether they are legally intoxicated) has increased slightly from an all-time low of 16,572 in 1999 to 17,602 in 2006. “We’ve seen no progress in 10 years; we’re completely stalled,” Susan Ferguson, a researcher at the Insurance Institute for Highway Safety, told the New York Times.
In response, MADD has launched an aggressive push for the expanded use of ignition interlock devices. “Our goal is to get interlocks on all convicted offenders within five years,” says Chuck Hurley, MADD’s executive director. The logic is straightforward: 75 percent of convicted drunk drivers who have their license revoked continue to drive anyway, including 500,000 first-time offenders. “What we’re doing now,” says Hurley, “is a catch and release program.”
Currently, New Mexico and Arizona are the only states that require first-time drunken driving offenders to install the interlock system. In its first year after implementing the new law, New Mexico’s drunk driving fatality rate dropped by over 11 percent. Offenders with interlock systems have a 69 percent lower re-arrest rate than those without the devices, according to research prepared by Richard A. Roth of the University of New Mexico.
The interlocks reportedly cost $125 for installation and carry a monthly fee of $60 to $75.
New York’s recent law expands the use of ignition interlocks, though it is far less comprehensive than the approach used in New Mexico and Arizona. The devices are now required for anyone granted a so-called conditional license who was convicted on an aggravated driving while intoxicated charge. This means that their blood alcohol level was .18 or higher at the time of their arrest. Someone with a conditional license can drive only under certain circumstances and can be barred from driving complely if he or she does not comply with those limts.
In addition, the law closes a long-standing loophole that allowed individuals who had to have the ignition interlocks to evade the requirement by using a company car or a car owned by a spouse or friend. The current law stipulates that the devices be installed in all vehicles operated – as opposed to only those owned – by the offender.
According to Ron Bergstrom, of the New York State Division of Probation and Correctional Alternatives, which is responsible for overseeing the ignition interlock program, there are currently 1,050 units in place for drivers covered by the law. In New York City, ignition interlocks have been mandated in only three cases according to Bergstrom, although he expects that number to increase with the adoption of the new law. Nassau and Suffolk counties are the state’s biggest users of the program.
The devices have been somewhat difficult to obtain. There were only 21 qualified vendors in place across the state last year (the number is now 75).
Other problems exists as well. Many probation departments believed that people could fool the devices by having a friend or companion blow into the tube. New technology that photographs the driver whenever a reading is taken may solve that, however. Another potential problem involves false positives: the technology may prevent even sober drivers from starting their car if it makes a false reading.
Even if New York were to require installation of an ignition interlock system for all offenders, it would only affect a minority of drunk drivers. Federal government research shows that only 8 percent to 33 percent of intoxicated drivers involved in fatal crashes have prior drunk driving arrests. (The 33 percent comes from Minnesota, the only state that keeps lifetime driving records on file. Most states only record arrests going back three years.)
The case of Eugenio Cidron testifies to the limits of relying on enforcement strategies to combat drunk driving: Aside from a traffic ticket and a seatbelt violation from 2003, he had a clean driving record before he hit Eric Ng, the New York Post reported.
Most drunk drivers manage to avoid the police entirely. Only one in 87 are arrested, according to Hurley.
One option would be to require that ignition interlock devices be installed for all drivers, not just those who have been arrested for a drunken driving offense. In theory, that would have prevented Cidron from starting his BMW. The goal would be to create a “passive safety” device that works unobtrusively, like an air bag. According to the New York Times, car manufacturers like Nissan and Toyota are experimenting with skin-sensing technology embedded in a car’s steering wheel or headrest. The universal use of such technology would let us “make drunk driving the public health equivalent of polio,” said Hurley.
Car safety experts and government officials say this is a long way off. The key is convenience. As Susan Ferguson of the Insurance Institute has said, “We don’t want the soccer mom dropping kids off, going to the grocery store and the preschool, and having to blow into something every time.”
Concerns about reliability and intruding on people's right to drive has led government officials to tread carefully when talking about universal ignition interlocks. “To be frank, we are years and years away from [reliable] technology,” Nicole Nason, the administrator of the National Highway Safety Administration, told the New York Times.
There are less tangible issues as well. Americans are very sensitive about any restrictions being placed on their cars.
Despite such obstacles, MADD has continued to push for the expanded use of ignition interlocks, using an incremental approach. They hope to convince fleet operators (such as taxis and truckers) to adopt the systems. New York State Assemblymember Sam Hoyt is introducing legislation to require the installation of the devices in all school buses. Hurley is also confident about the prospects for rapid technological change, pointing to a recent agreement between the United States Department of Transportation and major car manufacturers to devote $10 million to researching ignition interlocks.
Underlying the debate about preventing drunk driving is the tradeoff between safety and convenience. Clearly, there are things that New York can do to reduce the number of drunken driving deaths. Whether citizens are ready for these changes is another question entirely.
Aubrey Fox is project director of Bronx Community Solutions, aimed at changing the Bronx court system’s approach to low-level crime.
Laws that prohibit gun possession may be unconstitutional in Washington, D.C., but they are not unconstitutional in Brooklyn. And that is bad news for Rashawn Handsome.
Handsome was arrested when police showed up at his Wyckoff Gardens apartment with a search warrant and found three guns in a sneaker box. He had no permit to own or carry them, but because statutes on weapons possession in a home are different from other laws on weapons, Handsome was charged with a misdemeanor instead of a more serious felony. With the class A misdemeanor charge, he faces a one-year sentence.
His defense: the right to bear arms under the Second Amendment to the Constitution of the United States. Raising an argument not previously made by a criminal defendant in New York, Handsome and his court appointed counsel, Robyn Lear of the Legal Aid Society relied on a recent federal case decided by the U.S. Court of Appeals for Washington D.C., Parker v District of Columbia. To the surprise of many, that court, the federal court just below the Supreme Court, agreed with a group of Washington, D.C. gun owners that laws making gun possession illegal, do indeed violate the Second Amendment.
The U.S. Supreme Court is now deciding whether it will hear an appeal of that decision.
The closest any federal court in New York has come to this issue was in non-criminal litigation. In that instance, the court decided, "The right to possess a gun is clearly not a fundamental right."
Some civil lawsuits have tried to challenge New York weapons laws on the grounds that they violate the Constitution. All have failed.
Using the right to possess guns as a defense in a criminal case in New York, though, was something new. Handsome’s attorney argued that the case against his client should be dismissed because state laws making possession of an operable firearm without a permit illegal are themselves unlawful.
A loaded .44 Magnum revolver, a .38 caliber revolver and .25 caliber semi-automatic pistol along with ammunition, were in the sneaker box. Still, how could Handsome be prosecuted for something that is protected by the Constitution, the defense asked in moving to dismiss the charges.
When People v Handsome came to New York City Criminal Court in Brooklyn, Judge Michael Gerstein refused to dismiss the charges. Instead, he totally dismissed the opinion of the federal court, a far loftier court than his. He rejected the analysis in the Washington case and pointed out that other federal courts, including the Supreme Court, had at different times, found that "the right to bear arms" did not mean that individuals had such a right.
The Second Amendment says, "A well-regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed." To Gerstein, this means state militias (or in modern times the National Guard) have the right to possess weapons. No one, the judge reasoned, intended for every individual to "own firearms for their private, civilian use."
The D.C. federal court, though, had written that "the Second Amendment would be an inexplicable aberration if it were not read to protect individual rights," as well as militias. Gerstein boldly said that the federal judges were wrong. In fact, the judge wrote, "We find the reasoning of Parker to be deeply flawed, such that even if its holding were to be deemed applicable to our statute, which it is not, we would decline to follow it unless required to do so by our appellate courts." Although the Supreme Court of the United States has in recent years invalidated, for other reasons, sections of the Brady Handgun Violence Protection Act (named for Jim Brady who was shot during an attempted assassination of President Ronald Reagan), Gerstein cited the leading Supreme Court case, US v Miller, decided in 1939. In that case, the justices said an individual’s possession of a shotgun was not shown to have a reasonable connection to a well regulated militia or ordinary military equipment or that its use could contribute to the common defense." Therefore the Second Amendment did not protect possession of the shotgun. The conclusion in most decisions up to this point has been that the Amendment, using the language, "the right of the people," cannot be read out of the context of state militias. The Supreme Court could revisit this if it chose to review the Parker case – and take on one of the most divisive issues in the country
In his scholarly decision, Gerstein adopts the view that the Second Amendment was enacted to protect of state militias from the federal government and not to declare the individual’s right to possess arms. With the disappearance of state militias, courts have generally held, the purpose of the Second Amendment is moot. Parker is "founded on a revisionist view of the Constitutional Convention, which view is far from generally accepted," said Gerstein.
Going beyond the legal history, the New York judge used the decision to present statistics about the "nationwide proliferation of deaths and injuries caused by privately owned guns." Since the 2007 decision in Parker, Washington, D.C. has experienced 750 armed robberies, 520 armed assaults and 111 homicides, according to sources cited by Gerstein in his decision. In the United States, more than 30,000 people are killed each year by guns in murders, suicides and accidents with another 65,000 suffering gun injuries.
While the Legal Aid Society says that no decision has been made about appealing the Handsome decision, any reversal on appeal is generally viewed asextremely unlikely, and therefore unlikely to be pursued.
Emily Jane Goodman is a New York State Supreme Court JusticeÂ
Residents of Groveland, New York, upstate in Livingston County, have something to get excited about. According to a report put out this year, 62 percent of the town’s population is incarcerated. That, in itself, is not something to be thrilled about, but because of the way the federal government counts prison populations, the presence of so many convicts gives a resident of Groveland 2.5 times the voting power of people living elsewhere in the county and more clout that their downstate counterparts.
The scenario is repeated elsewhere in New York State and across the country. It has prompted a growing discomfort with the voting power of upstate districts as opposed to downstate ones and spurred efforts to change the way the U.S. Census counts prisoners. The Census counts prisoners where they are incarcerated rather than where they came from. That count, conducted every 10 years, is used to draw lines for local, state and federal legislative districts and ensure all residents have equal representation and access to government. Because the Census inflates the population in areas with prisons – and in New York that tends to be more rural, upstate counties – it gives the residents of those districts more representatives in the state legislature and the House of Representatives than they would otherwise have. As a result, New York advocates and elected officials want the bureau to change the way it counts prisoners before the upcoming census in 2010.
This debate over this issue is particularly stark in New York. The so-called Rockefeller Drug Laws, enacted in 1973, have made New York State one of the strictest in the country for minimum sentencing of first time drug offenders. Since implementation of the laws, the prison population has grown tremendously. Today 65 percent of the state’s prisoners come from New York City, but the Census counts them as residents of the upstate areas – even though New York State law defines residency as a place of “voluntary” inhabitance and prisoners are not voting members of the communities in which they are incarcerated.
Including prisoners as residents of the counties where they are incarcerated gives those areas increased political clout, according to a report by the Prison Policy Initiative. Advocates argue that this practice has a huge impact on the drawing of district lines, especially at the local level.
Groups such as the Brennan Center for Justice, DEMOS, Citizens Against Recidivism and the Coalition for Parole Restoration argue that including prison populations in the place of their incarceration “dilutes” demographics by enlarging or qualifying districts for more representation than their actual population deserves.
Based on 2000 Census information used to draw district lines, Queens contains some of the most over-populated State Senate districts in New York with about 4 percent more people than average, according to one study. In short, Queens residents are under-represented in Albany, since their districts have far more people than some of the upstate ones.
The report found that 16 counties in the state included prisoners in their population numbers, while 13 others chose not to. The issue is a difficult one for counties. Sifting through Census population reports to determine the number of prisoners in a county can be a daunting task, according to Peter Wagner, executive director of Prisoner Policy Initiative and author of the report. As a result, Wagner writes, counties must choose between using inaccurate Census data to redraw district lines or adjusting population totals to exclude prisoners. Including prisoners can create imbalance at the local level, giving people in some parts of a county more voting power than those in other areas of the same county. Of the 16 counties including incarcerated people, five contained at least one city district where prisoners made up over 20 percent of the population — Chautauqua, Livingston, Oneida, Madison and St. Lawrence.
Some elected officials and advocates want all counties to exclude prisoners before drawing district lines. This, though, would be only half the battle. The Census Bureau does not provide counties with sufficient personal information so that those prisoners can be counted back in their home districts.
While some advocates would like to see the Census Bureau change its policy on counting prisoners in counties, the likelihood that this will happen in time for 2010 appears slim. There is, however, an interim step. The Census Bureau report on county populations used to draw district lines does not indicate how many of the people in the total population are prisoners. The report that does provide that information comes out several months later, after many states have redrawn new district lines. To deal with this, some advocates want the Census Bureau to release its prison counts earlier so district lines can be drawn based on the population of actual residents.
State Senator Eric Schneiderman, whose district includes the Upper West Side, Morningside Heights, Washington Heights and Inwood, has announced a formal letter writing campaign to call upon the Census Bureau to change its policy for counting prisoners as well as including prisoner information in the initial Census to allow counties to more accurately draw district lines. “Disenfranchised people become an undeserved source of political power for legislators who benefit from locking up more people for longer sentences,” Schneiderman said.
Other elected officials also have called on the Census Bureau to collect the home addresses of all incarcerated people in the next census. “By counting prisoners in the places where they are incarcerated, the Census Bureau is effectively shortchanging my constituents from receiving fair representation,”said Assemblymember Adriano Espaillat.
Schneiderman has introduced legislation in the Senate to bring the counties into compliance with the state constitution’s definition of residency as a person’s “voluntary” residence. The legislation, also sponsored in the Assembly by Espaillat, would require state and local prison facilities to collect home addresses of all prisoners. The information would be provided to the State Board of Elections and used to adjust Census Bureau population data by noting where prisoners legally reside and mandating that the revised data be used to draw congressional, state and county districts.
As the Census draws nearer and legislators prepare for another round of redistricting, excluding prison populations from district numbers could put a number of upstate rural representatives at risk of losing their seats, given the unequal balance of district sizes across the state. At the same time, it would create new districts in the city.
For advocates and elected officials trumpeting the cause, there is some optimism. Wagner believes that after counties are presented with the proper data, they will remove prisoners from their counts. “We are expecting all of [the counties] to do it,” he said. But for now, everyone in Queens and other reportedly underrepresented counties will have to wait and hope all this activity means that in the next decade their votes will be worth a little more than they are today.
Andrea Senteno is program associate for Citizens Union Foundation, which publishes Gotham Gazette. Jay Cerrato is a research and policy intern.