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Mayor's Summit On Illegal Guns


What is a city to do? There are illegal guns on the street that are being used to commit violent crimes, so as a city you do what you can on your own:

  • step up enforcement of gun possession laws
  • intercept illegal sales
  • lobby for tougher laws and stiffer penalties in the state legislature
  • and even try suing gun manufacturers and dealers for negligent marketing techniques.

But most of the guns -- reportedly 92 percent of those recovered between 1988 and 2003 -- are from out of state. So no matter how many guns you take off the street here, more keep coming. Other states have lax gun laws, so it is easy for people to buy guns there and bring them to your city, and your laws have no effect outside of your borders. And the people that are supposed to intervene when there are problems across state lines in a federal system -- Congress and the rest of the national government -- do nothing; indeed they are trying to prevent you from obtaining the information about where the guns are coming from .

So what's a city to do? If you are New York City, you call together mayors from 15 cities from around the country at Gracie Mansion. On April 25th, Mayor Michael Bloomberg and co-host Mayor Thomas Menino of Boston, played host to what was dubbed the Mayor’s Summit on Illegal Guns. Half photo op, half strategy session, the meeting concluded with the attendees signing a "statement of principles" (in .pdf format) which called for increased punishment of illegal gun possession and trafficking, action against gun dealers who allow so-called “straw purchases” (the use of a third party to buy guns), and resistance to federal efforts to limit the cities’ access to gun trace information.

While it is true that shootings are down in New York so far this year, in many ways Bloomberg has staked his second term on making tangible progress in his campaign against illegal guns. He made the issue a central plank in his State of the City address, traveled to Washington to testify before Congress, and now has attempted to put together a broad coalition of local politicians from across the country. If nothing else, the effort has made Bloomberg a nationally-recognized name.

Positive Reaction, But Fruitful Follow-up?

The reaction in the local press has been positive. The Journal News (Westchester) issued "cheers for leaders demanding action”. The Post made light of the fact that Bloomberg declined a request from the National Shooting Sports Foundation to speak at the meeting.

Of course, the important question is whether the mayor’s coalition-building will do any good. Barring a major change in this fall’s federal elections (not out of the question, but certainly not a sure thing either), Congress is unlikely to take any action to tighten federal gun laws. And given recent attempts to restrict access of local governments to gun trace data, New Yorkers might be forgiven for believing that Congress wishes them ill.

Congress aside, there are two ways that the “Mayor’s Summit” could prove fruitful. Politically, the city can only benefit from attempts to reframe the debate over guns and from the creation of a broad network of like-minded mayors. The group of 15 that attended the meeting at Gracie Mansion included the mayors of such cities as Milwaukee, Jackson, Mississippi, Dallas, and Tulsa. A quick look at the press reports of the summit and the obligatory “balance” quotes from the National Rifle Association give a hint as to the anti-Bloomberg talking points: The mayor is an elitist with an elitist plan, out to get law-abiding gun owners. To the extent that the coalition grows to include more politicians from cities like Jackson, Dallas, and Tulsa -- hardly bastions of northeast-style liberalism -- the group’s ideas may have more currency.

Practically, if this group proves to be more than a one-time photo opportunity, and can expand to include a broader network of cities, there are real opportunities for mutual assistance. Bloomberg has made much of his fondness for technology and information sharing, not only in public safety initiatives but throughout city government. Figuring out a way to share information about gun trafficking and related problems with cities across the country can only benefit New York’s efforts (and everyone else’s as well). Sometimes when Congress refuses to act, the people affected on the local level just need to get creative.

Court Victory

As if on cue, the same week of the Mayor’s Summit, a federal judge in Brooklyn handed the city another victory in its lawsuit against gun manufacturers and dealers . Judge Jack Weinstein, a Lyndon Johnson appointee who is a Senior Judge in the Eastern District of New York, again allowed the city’s suit to go forward, despite apparent federal law to the contrary. Last year, Weinstein held that the suit could continue, despite the passage of a law prohibiting such suits (that decision is currently pending on appeal in the Second Circuit). And now Judge Weinstein has held that Congress’ recent attempts to restrict the use of gun trace data by local governments do not apply to the New York case, because the city had possession of the information prior to the passage of the law. It is unclear whether Judge Weinstein’s decision will hold up on appeal, but for now at least the city’s lawsuit is still alive.

David Dean, a student at New York University School of Law, worked as a policy analyst in the Mayor's Office of the Criminal Justice Coordinator. 

 

Injured, Undocumented -- And Legally Protected


Gorgonio Balbuena, who was born in Mexico, said he was injured when he fell from a ramp while pushing a wheelbarrow on a construction site in the city. Satnislaw Majlinger, who was born in Poland, said he too was injured when he fell while working on a different construction site in the city.

Both said their injuries are severe. Both sued, claiming labor law violations.

And neither had legal standing to work, or even live, in the United States.

Two different state appellate courts — one in Manhattan, one in Brooklyn — delivered two contradictory rulings on their rights to sue for lost wages.

The Appellate Division covering Manhattan and the Bronx reached the conclusion that damages such an injured worker can claim are limited to "the wages [he] would have been able to earn in his home country." But the Appellate Division that hears cases from the city's other boroughs, as well as Long Island and Westchester, reached a contrary result - - concluding that all workers, regardless of immigration status, are protected by the laws of this state.

The highest court in New York State, the New York Court of Appeals in Albany, has now resolved these contradictory decisions by upholding the one from Brooklyn. The court declared that construction workers injured on the job can seek damages for past and future loss of employment and income, even if they are "aliens," immigrants with no documents allowing them to work in this country.

Judge Victoria A. Graffeo of the state's highest court, wrote the combined opinion in Gorgonio Balbuena v. IDR Realty and Stanislaw Majlinger v. Cassino Contracting Corp., holding that both Balbuena and Majlinger could sue for lost wages.

The Manhattan judges were wrong, the Albany judges decided, to rule on the basis of a federal case known as Hoffman Plastics v. Natoinal Labor Relations Board, because the immigrant worker's conduct in the Hoffman case was unlawful (he used fraudulent documents to get hired). But, while both Gorgonio Balbuena and Stanislaw Majlinger were in the United States illegally, their conduct on the job was not illegal. Since it is illegal for an employer to hire employees without verifying authorization to work in this country, it is the employer who acts unlawfully by hiring an undocumented worker. No crime is committed by an "unauthorized alien" employee who takes the job, unless fraudulent documents were used, which neither Balbuena nor Majlinger did.

Ultimately, Judge Graffeo wrote, "the question is whether an award of past and future wages to an undocumented alien worker undermines the objectives of federal immigration law."

While defendants claimed that permitting an undocumented alien to recover lost wages is "in contravention of the purposes and objectives of federal immigration law, condones past transgressions and encourages future violations," plaintiffs, joined by Attorney General Elliot Spitzer, argued to the contrary. The plaintiffs' position was that an undocumented alien should be allowed to recover for monies lost as a result of defendants' failure to adhere to the work place safety requirements. They also argued that precluding lost wages would make it more financially attractive for noncompliant employers to hire illegal aliens, thereby undercutting the central goal of the federal act, and providing less of an incentive for employers to meet state labor requirements regulating occupational health and safety.

"It was the New York legislature's intent to achieve the purpose of protecting workers by placing 'ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor,' instead of on workers, who are scarcely in a position to protect themselves from accident," the Court held. "The Labor Law," the opinion said, "applies to all workers in qualifying employment situations - - regardless of immigration status - - and nothing . . . negates the universal applicability of this principle."

According to the 25 page opinion, "limiting a lost wages claim by an injured undocumented alien would lessen an employer's incentive to comply with the Labor Law and supply all of its workers the safe workplace that the Legislature demands.

"An absolute bar to recovery of lost wages by an undocumented worker would lessen the unscrupulous employer's potential liability to its alien workers and make it more financially attractive to hire undocumented aliens." The majority opinion, from which two judges dissented, said, "illegal aliens are willing to work in jobs that are more dangerous and undesirable - - and for less money - - than their legal immigrant and citizen counterparts, [and] would actually increase employment levels of undocumented aliens, not decrease it as Congress sought."

The cases can now proceed to trial where evidence may be introduced by an undocumented alien, about work history and prospects, just as in any other personal injury case. But the jury would be entitled to hear about the likelihood of future earnings in this country, including immigration status.

Eventually the issue might reach the Supreme Court of the United States which would be faced with New York's conclusion that "an undocumented alien performing construction work is not an outlaw engaged in illegal activity."

Emily Jane Goodman is a New York State Supreme Court Justice

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Immigrant Construction Workers

Rockefeller Drug Laws: An Ex-Prisoners View




Photo: 15yearstolife.com

Anthony Papa with self-portrait,

Little over thirty years ago Governor Nelson Rockefeller and the New York State legislature created the toughest drug laws in the nation. Their aim was to curb the drug epidemic, capture drug kingpins and create harsh drug laws that would combat drug use and selling. In reality this did not occur. Instead these laws have filled our prisons with non violent drug offenders, primarily from NYC neighborhoods. Over 94 percent of those incarcerated are black and Latino. Over 80 percent of New Yorkers agree that these laws are not effective and there is a need to created meaningful reform. In 2002 for the first time in history the governor of New York and legislative leaders called for reform.

In 2004 and 2005 following that call, the New York Stare Legislature imposed changes in the Rockefeller Drug Laws. These reforms were meant to allow current drug offenders who have already served long sentences to apply for reduced sentences. They also lowered drug sentences and expanded prison-based drug treatment. These minor reforms, in theory, would affect about 1000 drug war prisoners eligible for resentencing under the Drug Law Reform Act (DRLA).

I served 12 years of a 15 to life sentence for a non-violent drug offense after passing an envelope to undercover officers containing 4 ounces of cocaine in exchange for 500 dollars. I made the biggest mistake of my life just like many others who are serving hard time. In 1997 I was granted clemency by Governor Pataki, who recognized the injustice of my sentence. Most of the people I left behind were serving long sentences for non-violent drug offenses. I then became an activist who has fought tooth and nail for meaningful reform and was very disappointed to see that very little was done in the minor changes made in 2004 and 2005.

While these changes were a first small step, much more needs to be done, like addressing the issue of the 4,800 B-felons who make up the largest group of drug prisoners. Currently selling small quantities of drugs can land you a sentence up to nine years for a first offense, equal to a B-level crime such as rape or armed robbery.

But almost more upsetting than the lack of changes has been the response made by the prosecutors of New York, who often distort the facts associated with these reforms. The most outspoken opponents of these laws have continuously put out a "war cry" to the media and the public about the dangers of revising these laws and how the gateways of hell would be open if the laws were changed. If you look through their hype you will discover the underlying reasoning behind their stance. Prosecutors live and die by their rates of conviction. This is the bottom line.

With activists inching closer to meaningful reform comes the reality that prosecutors would eventually lose their omnipotent power in drug law cases. As it stands with the new reforms they maintained this power. They still control the outcome of a drug case from its beginning.

While the prosecutors point to a handful of people who are undeserving of relief under the new reforms, the vast majority are non-violent offenders who deserve a chance to reenter society and be treated with compassion. Just like when NYC District Attorney Bob Morgenthau showed compassion recently for the NYU "Pot Princess" Julia Diaco who was sentenced to treatment and 5 years probation instead of a 25 year sentence for 8 separate felony sales. And before her , Governor Pataki's former Rockefeller Drug Law spokesperson who was busted for buying crack cocaine and sentenced to a 250-dollar fine and treatment.. We have to think about the concept of redemption and compassion for all. People can change their lives. I know this for a fact.

According to Drug Policy Alliance, a leading policy group in NYC, 70 percent of the 1,000 prisoners that were eligible for relief under the new reforms are still in prison.

One of the most significant reasons for this is that prosecutors almost always argue for the maximum sentence, ignoring the records of rehabilitation and relying on old facts that were maintained many years earlier. One of the most controversial points of Rockefeller reform is judicial discretion. Under the current laws, judges have little power to place offenders in treatment. The power is maintained by the prosecutors, who also decide what charges are appropriate. Advocates for reform argue how could justice be served by allowing the one party who measures success by their conviction rates? Discretion should be available to the presiding judge, who is the only objective person in the case.

It may be true that inner city neighborhoods are devastated by drug use. However, this is not the only root cause for this. Lack of opportunity, unemployment and education are also contributing factors. One of the most significant factors is also the lack of drug treatment. Under the new reforms the State legislature did not fund community based treatment, which has been found to be the most cost effective way to reduce drug use.

While in prison, I became a jailhouse lawyer and litigated dozens of drug cases and never once came across a "drug kingpin". Most of these prisoners were non-violent drug users that needed treatment. However, treatment was not available in prison then, and it is not available now.

We need to create laws that will protect the community and at the same time be fair and just. The Rockefeller Drug Laws in many ways have become crueler than the crimes that are committed. They go beyond the individuals that committee crimes. They destroy their families and put a financial burden on tax payers that foot the bill for an ancient and proven ineffective approach to the drug problem. The drug war has fueled the prison industrial complex. Since 1982, 33 prisons have been built in rural Republican upstate communities. They have become a source of revenue for upstate politicians that have discovered a cash cow. Instead of filling our prisons with non-violent drug offenders we should concentrate on alternatives like drug treatment and the creation of jobs and education for the communities of color which is affected the most in the efforts to lock our way out of the drug problem. Only then will we be able to solve the drug war problem in New York.

Anthony Papa is the author of 15 To Life: How I Painted My Way to Freedom

 

The Rockefeller Drug Laws: A Prosecutor's Perspective


In presenting their case for past and future revisions to New York’s Rockefeller drug laws, supporters of the changes contend that revising the law would benefit non-violent, first-time drug offenders and low-level criminals, not drug kingpins or violent career criminals. After more than a year’s experience implementing the drug law revisions of 2004, however, that is not what has happened. While some low-level drug offenders have benefited from the revisions, sanctions against numerous violent career criminals and high-level narcotics traffickers also have been significantly reduced. I fear that further changes now under consideration may well make the situation worse and may again put at risk neighborhoods once devastated by drugs that have been rescued.

I have been New York City’s Special Narcotics Prosecutor since 1998, but I have been a practicing prosecutor since 1983. I was handling homicide cases during the 1980s and the 1990s, when the crack epidemic was at its height. And I saw case after case of young people dying over crack.

They were dying because people who killed them were high. They were dying because people were fighting over a spot to sell drugs. In the 1980s, parts of this city were nearly destroyed by crack. In the 1970s, heroin had done the same thing in too many neighborhoods.

The Rockefeller drug laws were enacted in 1973 during that heroin epidemic because people were tired of seeing young people dying and so many other lives destroyed because of drugs. The laws set penalties of 15 years to life for some drug offenses and limited the amount of discretion judges had in setting sentences. Around this time, the Office of Special Narcotics was set up to address the problem of narcotics trafficking in New York City. Today, we handle about 4,000 felony narcotics cases every year. When I say, "felony," I don't mean user amounts. Mostly it's selling drugs. And when I say, "narcotics," I mean cocaine and heroin. Marijuana is not a narcotic drug.

TREATMENT AND PUNISHMENT

While critics say the laws do not focus enough on treatment, the Office of Special Narcotics has been a staunch advocate of drug treatment. Along with the Brooklyn district attorney’s office, we pioneered alternatives to incarceration in the late 1980s, because we saw no point in jailing people who sell drugs to support their own habit. But experience in this area has taught us that a person’s fear of going to prison is a way to motivate them to get into treatment. Some of our drug defendants have said that the day they got arrested was the best day of their lives, because the only thing they wanted to do less than stop using drugs was go to prison. When they faced the threat of state prison, they were finally able to turn their lives around.

But treatment programs alone are not going to solve the problem, because the majority of drug dealers are not addicted. Most people sell drugs because it's fast money. They don't have great educations. They don't have great economic opportunities.

DRUGS AND VIOLENCE

And so they sell drugs, causing further devastation in their neighborhoods. Things have improved a great deal in New York City. But we still get calls from people who say, “There's drug dealing going on, on my doorstep. I don't want my kid walking past it.” And communities across the city tell me, "Get those drug dealers off my street corner, lock them up and do it now."

This is understandable. Narcotics go hand-in-hand with violence. They go hand-in-hand with other crime. So, when we have a narcotics problem, we have a crime problem. And not just the crime of drug selling.

We have used narcotics enforcement as a tool to bring the crime rate down in this city and to address violent crime in the drug-plagued areas of the city. We need to make sure that, whatever changes we make in the state’s drug laws, we can continue to do that.

LIGHTER SENTENCES

The first set of Rockefeller drug law revisions was enacted in 2004 and became effective in January 2005. It was an overall revamping of the drug statutes.

Before the changes, possessing four ounces or more of a narcotic drug, meaning cocaine or heroin -- or selling two or more ounces -- was an A-1 felony in New York State. Four ounces may sound like nothing. But you can get at least 4,000 glassines or vials out of four ounces of coke or heroin. You don't see users with that amount.

The 2004 Drug Law Revision raised the amount needed for a possession offense from four ounces to eight ounces of cocaine or heroin. Selling two ounces remains an A-1 felony. The legislature did not change that.

But it did reduce sentences so that a person convicted for the first time of a top narcotics offense -- possessing a half a pound of coke or heroin or selling two ounces -- faces between eight and 20 years (Before they faced 15 years to life).

The revision also decreased prison time for all narcotic offenders and provided for re-sentencing of people already in prison. The measures were intended to help nonviolent drug offenders and low-level drug offenders, and some did benefit. But kingpins and major traffickers were the ones who received a windfall.

By November 2005, approximately 270 prisoners were re-sentenced statewide. The Office of Special Narcotics handled about 31 percent of those cases. In about 10 cases, we consented to having them serve the minimum. Fifteen years to life was too heavy for their crime. So good things did come out of the revision.

But most people that the office handled either had been convicted or implicated in some kind of a violent crime or were a major trafficker or kingpin. Of the 81 who had applied for re-sentencing to our office, we had nine involved in homicides or serious assaults, which left the victims paralyzed. We had 23 kingpins, or major traffickers. One, whose sentence was cut to 11 years, already had a federal money laundering conviction and was a high-level member of an international ring responsible for importing thousands of pounds of cocaine and laundering millions of dollars.

And then, applying for sentence reduction, were the people who destroyed neighborhoods in the 1980s, who took over areas of Harlem or the Lower East Side, took over whole buildings and trafficked thousands of vials, thousands of glassines out of those buildings. The head of a Lower East Side cocaine organization, which had weekly sales of $15,000, saw his sentence cut by eight years. People like him make a lot of money, so you need to be able to impose a stiff jail sentence to let them know it isn't worth it.

Under the new statutes, the judges can impose a sentence of from eight years up to 20 years. Judges are guided by their own discretion in sentencing - with one exception: If a person has a prior felony conviction, the sentencing range is now 12 to 24 years if the previous felony was non-violent and15 to 30 for a violent prior felony. The old law made no distinction: The minimum sentence was 15 years to life for all, and the maximum 25 to life for all.

Many people who have gotten minimum sentences of eight years since the new law went into effect do not fit the description of the intended beneficiaries of the drug law changes. One woman who received the minimum had been convicted of coordinating the delivery of 322 pounds of cocaine.

THE NEXT ROUND OF REVISIONS

In 2005, the reforms went from bad to worse. The legislature extended re-sentencing to the next level down, to the A-2 offenders. Many of these people had plea bargained their cases. They were originally charged with the more severe A-1 offenses and then plead guilty to A-2 crimes to get a shorter jail sentence.

We offered them the plea because we had heard the message. Many New Yorkers thought too many people were getting 15 years to life. And often we agreed. The A-2 range of eight and a third years to life was adequate to punish most of these offenders.

But then the legislature passed A-2 re-sentencing, and they excluded from the change anyone who had received a minimum sentence. Only the most serious offenders or those who had prior convictions were eligible to be re-sentenced. So it seemed that the state government had done the opposite of what reform advocates intended. Rather than helping low-level offenders, the people eligible for re-sentencing included one who was found with 70 pounds of cocaine and a loaded 45 caliber gun, and another with 715 pounds of cocaine.

Now, there is talk about changing the sentencing structure for the next level still, B felony offenses. And quite frankly, I fear what this could do.

Most of the defendants we prosecute for B-level felony offenses are selling drugs. Of the approximately 2,500 we prosecuted during a year, only 315 received a sentence of more than a year in jail. Of those we sent to state prison, 89 percent had prior felony convictions. Only 36 were first-time felony offenders. And we sent twice as many first-time felony offenders to treatment as to state prison.

But this is a critical statute for prosecuting the people who ruin neighborhoods. If you are going to make some money selling $5 vials of crack, you have to sell a lot of them. And, for the people living next door, it’s a huge problem, destroying the quality of their life.

Now the people selling that crack should not go to jail for the rest of their lives. But we need to take them out of the community long enough for the neighborhood to come back up again.

JUDGES AND SENTENCES

The other push is for expanded judicial discretion. This creates problems. If judges can do anything they think is appropriate, there are going to be inconsistent sentences because judges have different perspectives. And widely varying sentences can decrease confidence in the legal system. It makes people think that the system is unfair.

That is what happened in the 1970s, when judges were allowed complete discretion and so could sentence people to whatever they wanted. At that time, the New York Times ran a series of articles on this issue. They found that the problem of sentence disparity – different sentences -- increased as judges had more discretion. The chief judge in New York State, the head of the Court of Appeals, said then that it “might be desirable” to take sentencing away from judges entirely and turn it over to some other agency.

We do not want to return to the days when many called sentencing in New York State “chaotic.” I think we want the legislature to take the responsibility, set a sentencing range, and then let the judges determine within that range what sentence is appropriate.

Fighting drugs -- and developing laws that can do that and at the same time protect neighborhoods -- is a tough, tough issue on which people feel passionately. We cannot incarcerate our way out of the drug problem. People need a good reason not to do drugs. They need other choices. I wish we had a good way to provide that. But minimizing consequences for drug dealers is not the answer. Drug crime begets violent crime and for the present, incarceration is the most effective tool to reduce that violence.

Bridget Brennan has been New York City’s Special Narcotics Prosecutor sine 1998.

 

Terror, Not Terrorism


New Yorkers’ feeling of safety, gradually regained, may have taken a few steps backward. Our uneasiness is not due to a resurgence in crime. While it is true, as the New York Sun reports, that the number of major crimes so far this year, including homicide, is up compared to the same period in 2005 -- a trend that is confirmed by the most recent publicly available New York Police Department statistics (in pdf format) -- it is too early to draw any conclusions from those numbers. The numbers can easily be skewed this early in the year by anomalous spikes in crime, and the period to which the present is being compared -- the beginning of 2005 -- featured unusually low incidence of crime.

False Alarms

New Yorkers have been reminded that no matter how low crime rates drop, or how much safer New York is than places like Columbus, Ohio, there lurks a palpable anxiety about the threat of terrorism.

Over the Presidents Day weekend, an unknown thief broke into the car of a Department of Environmental Protection employee and stole a laptop computer containing maps of the city’s water distribution system . Officials initially worried that the maps might fall into the wrong hands and compromise the security of the system; worries about terrorism reportedly were enough to get the police department’s Intelligence Division involved in the investigation. By the middle of the week, however, officials seemed comfortable to say that the theft was not terror-related, but rather a run-of-the-mill car break-in.

Then on February 22nd, city officials announced that a West Village man was being treated for a case of inhalation anthrax . The news of a case of anthrax in New York, combined with the images of first responders in biohazard suits was enough to evoke vivid memories of the fall of 2001, when several media outlets received letters laced with anthrax spores and put the city on edge for weeks. As in the situation with the stolen water system maps, officials acted quickly and decisively. Mayor Bloomberg held a press conference on the afternoon of the 22nd (see video of it), flanked by Police Commissioner Ray Kelly and city health officials, to deliver the news and to reassure the city that there was no evidence of terrorism. Officials believe that the infected man, Vado Diomande, a dance choreographer originally from the Ivory Coast, contracted the disease from naturally occurring anthrax spores on several hides he had brought over from Africa for the purpose of making drums. As of this writing, Diomande remained hospitalized undergoing treatment, and no other cases of anthrax have been reported.

Port Problem Reveals Vulnerability

In both of these cases, New Yorkers were able to rely on their own first responders and administrative officials. A Daily News editorial. "City Passes Anthrax Test",—summed up the general mood. The editorial praised city officials for being upfront with the public, and noted that "it was nice also to be reassured that the emergency response system was on the case, up to speed and in command." So too have the city’s first responders seemed up to the task in other situations where the risk of terrorism seems acute: the visible police presence at landmarks, increased arrests on the city’s bridges and tunnels (700 percent, the Post reports, since the September 11th attacks) and, agree with it or not, the policy of conducting random baggage searches of subway passengers in the wake of last summer’s bombings in London. New Yorkers might almost have been forgiven for having entertained dreams of self-reliance when it comes to security measures.

Yet the story of the debate over the control of New York Harbor abruptly woke us up. The federal government, with a minimum of publicity (“Congress probably should have been briefed on this matter sooner,” said the president’s press secretary) and lack of adherence to procedural niceties (a mandatory investigation period was apparently skipped), approved the sale of port operations at six major U.S. ports, from P & O Ports North America, a British company, to Dubai Ports World, a company owned and operated by the government of Dubai (part of the United Arab Emirates). Port Newark, and the New York Cruise Terminal on the West Side are two of the ports that would be affected. Critics immediately raised terror-related concerns, citing security lapses in the company’s port in Dubai, as well as the UAE’s past terrorist ties. The reaction from politicians inside and outside of New York -- including Senators Hillary Clinton and Charles Schumer, Governor George Pataki, Mayor Michael Bloomberg, Representative Peter King (chairman of the House Homeland Security Committee, among others -- was swift and uniformly critical. All of the city’s major papers issued blistering editorials (“Dubya Jeopardy” said the Post; “Strangers at the Door” warned an Op-Ed in the Times ; “Anybody home?” asked the Daily News ). On the 24th, the Port Authority moved to block the sale in court.

Of course, as some have pointed out, Customs and Coast Guard officials would still be responsible for security at the ports, and the Dubai company would inherit the current workforce at the port, which is mainly American. Without specific complaints about security lapses, the overheated reaction can’t help but seem a bit xenophobic.

The real problem exposed by the port scandal is not that an Arab company is going to operate several American port facilities. In a way, this is almost beside the point. Rather, the problem for New York City is two-fold.

First, frighteningly little has been done since September 11th to secure port facilities in light of terrorist threats. Few dispute that the ports are a weakness in the world of homeland security, and experts estimate that only between four and six percent of shipping containers at major ports are inspected.

Second, the debate over Dubai Ports World has brought into sharp relief just how dependent New York City is on federal homeland security efforts. While the city depends on information and money from the feds, the visible manifestation of homeland security in New York City is the police department, the fire department, and other first responders. But no matter what those agencies do, New Yorkers are still dependent on Washington for much more than homeland security money. Given the performance of the Department of Homeland Security in responding to Hurricane Katrina, and the way it has bumbled through the process of approving the port sale, New Yorkers would be right to have their confidence shaken. But those failures also underscore the need for local elected officials to do more than lobby for money. Highlighting the stupidity of giving homeland security money to the Virgin Islands is well and good, but it should not be at the expense of trying to shape larger-scale homeland security policy.

David Dean, a student at New York University School of Law, worked as a policy analyst in the Mayor's Office of the Criminal Justice Coordinator. 

The State Of the City's Crimefighting


Fresh off his decisive victory in November’s election, a victory made possible in part because of his record on public safety, Mayor Michael Bloomberg set out what he called “A Blueprint for New York City’s Future” in his State of the City address on January 26th.

To an outside observer, it may have seemed strange that, in addition to ambitious pronouncements about tackling poverty, creating new jobs, rebuilding the World Trade Center site, and reforming the Administration for Children’s Services in the wake of the killing of seven-year-old Nixzmary Brown, the mayor reserved a considerable portion of his speech to new crime-fighting proposals. Yet recent events have forced public safety issues back into the consciousness of New Yorkers.

New Public Safety Proposals

Of course, Bloomberg made sure to mention the continuing drop in crime numbers. Through December 18th (as of this writing, the date of the most recent numbers available online), the number of major crimes had dropped 12 percent over the same period in 2004. Furthermore, according to the mayor, crime has dropped by 20 percent since he was elected in 2001.

To Bloomberg’s credit, he made a number of concrete proposals to fight crime over the next year, a refreshing change from the lack of policy detail laid out during his campaign.

The mayor announced that the police department would expand Operation Trident, an initiative introduced last year that split up troublesome precincts and sent in additional police officers. Though the name may be lacking in originality (the Metropolitan Police Service in London began their own Operation Trident in 1998 to tackle gun violence), the policy itself seems to have been a success.

In East New York’s 75th Precinct, a Trident target in 2005, crime fell by 12 percent. While the incidence of homicide was unchanged over 2004, East New York saw large drops in rape (though, as the Village Voice pointed out,rape numbers are notoriously difficult to assess), robbery and burglary.

Following on the success of Operation Trident in the 75th Precinct, Bloomberg said that the initiative would be expanded to two precincts in the South Bronx—the 44th precinct and the 46th precinct.

Bloomberg also called upon the state legislature to pass a law requiring the collection of DNA samples in all criminal convictions. The mayor called the proposed law “the single best way to catch offenders before they become serial offenders, as well as to exonerate the innocent.” In light of the opposition such proposals have received in the past from civil liberties groups, who argue that extensive DNA collection is an invasion of privacy, passing such a law surely will not be easy, especially if Bloomberg insists on including convictions for misdemeanors. It also takes quite a faith in the “broken windows” theory to believe that your average turnstile jumper or shoplifter is likely to turn into a murderer or rapist. Add to that the sheer number of misdemeanors that flow through the city’s criminal justice system every year -- a report by the New York Criminal Justice Agency found more than 176,000 of them in 1998, and there is no reason to suggest that there are fewer today -—administering such a DNA collection system would take substantial resources.

Fighting Gun Violence –- Ideas New and Old

Bloomberg’s top public safety priority in the coming year, however, is fighting gun violence, and keeping illegal guns off the street. This should come as no surprise, as it has been the mayor’s focus since two police officers were killed at the end of 2005. In his State of the City speech, Bloomberg vowed to “marshal all of our resources and work with all of our partners in public service -- whether they are across the rotunda in City Hall, up in Albany, or in big cities across the nation -- both to root out and punish these criminals and to stop the flow of illegal guns into our city.”

The mayor outlined several proposals to achieve this goal, some old, and some new. One was filing new lawsuits against the dealers responsible for selling the guns that end up being used in crimes; experts suggest that about 60 percent of the guns used across the country to commit crimes come from just one percent of gun dealers. Another idea that had been suggested before was to work with elected officials across the country to toughen gun control laws and improve enforcement (“Mike gunnin’ for NRA” was the headline in the Daily News when the mayor first suggested such a plan, in an article that also wondered whether Bloomberg would use some of his own money to campaign against illegal guns.)

Among the new proposals was a commitment to debrief felony gun defendants after they are arrested (to gain intelligence on the illegal gun market), a plan to use new video technology to track the source of gun shots, and a collaborative effort to flag the cases of gun offenders when they are arrested for other crimes. Bloomberg also proposed two new pieces of legislation: a new registration program for individuals convicted of gun crimes -- a “Megan’s law for gun criminals” in the words of the mayor -- and a mandatory minimum sentence of three and a half years for anyone convicted of criminally possessing a loaded gun.

New Gun Laws Get Their First Test

It is hard to imagine that the members of the state legislature who passed the Crimes Against Police Law in December in the wake of two police shootings could have dreamed of a better poster boy for the law than 25-year old Damian Henry. Henry -- a “cop-hating thug” in the Post’s estimation -- has been charged under the new law with first degree attempted murder after firing an Uzi at two police officers outside an East Flatbush club that he was allegedly about to rob. Police also say that, in a coincidence Charles Dickens would be proud of, Henry was arrested last summer for firing at a correction officer with the same gun that was later used to shoot Officer Dillon Stewart.

Nixzmary’s Law?

The tragic death of Nixzmary Brown has had ramifications for the city’s child services system that will be felt for years. Now Brooklyn District Attorney Charles Hynes wants life without parole for similar crimes. Nixzmary’s stepfather, the accused killer, is charged with second degree murder, which carries a maximum penalty of 25 years to life. Bills have been introduced in both the state senate and assembly to change the law.

David Dean, a student at New York University School of Law, worked as a policy analyst in the Mayor's Office of the Criminal Justice Coordinator. 

Housing Court: Should Tenants Have A Guaranteed Right To Counsel?


As long as there have been landlord and tenant disputes - - which is as long as there have been landlords and tenants - - there has been an imbalance: Some people own the housing that other people need for shelter. And, at least since 1972, with the creation of the Housing Court within New York City Civil Court, there has been another dramatic imbalance. Landlords have attorneys, and tenants don’t.

Much has been said and written about this. Little has been done.

The New York County Lawyers' Association held a conference in 2004 to analyze the issues facing housing court. A report (in pdf format) of conference findings and recommendations was recently issued.

The report points to the gap in representation in the 350,000 residential cases that are filed every year: "11.9 percent of tenants in New York City Housing Court were represented by an attorney and 97.6 percent of landlords were represented by an attorney. As grim as these figures are, they likely understate the percentage of low-income tenants who are unrepresented..."

With self-represented (called pro se) tenants filling the courtrooms and hallways of the boroughs' Housing Courts, it is a scene one law professor described as a "largely one-sided eviction apparatus." Others have called it Kafkaesque, or as acrimonious as a bad marriage.

Federal and state courts, including New York's Court of Appeals, have distinguished between civil and criminal cases, holding that all persons accused of crimes, facing possible loss of liberty, are entitled to free legal representation. But there has never been a similar right in civil cases. Of course, those able to retain and pay their own counsel have always been able to do so, both in civil and criminal proceedings. But the issue that has never been resolved is, who provides the lawyers for the vast majority of Housing Court litigants who lack the funds to pay their own lawyers?

Tenants are severely and dangerously under represented by lawyers. The lack of representation deprives them of a fair trial, due process, and access to courts, according to Andrew Scherer, an expert in residential landlord-tenant law who is head of Legal Services for New York, which represents indigent clients in civil actions. Scherer believes it violates the federal and state constitutions as well as civil rights laws, and argues that there is only one solution - - to recognize a guaranteed right to counsel. But the right to counsel cannot be merely theoretical. It means that as in criminal cases, government must supply and pay for lawyers, for those who cannot afford to pay fees, and they must be lawyers who are knowledgeable in the field.

Lawyer-less litigants are generally intimidated by the maze of housing court, a court that even many lawyers have difficulty figuring out. Some conference participants urged Housing Courts judges to be more protective of tenants, especially the most vulnerable, the disabled, the impaired, the aged. But Housing Court judges, like judges elsewhere, cannot become advocates for those appearing before them and can usually do little more than try to explain to the unrepresented tenant what he or she is facing at trial or in agreeing to in a settlement. The settlement is usually contained in a stipulation signed in the corridor, and often contains terms the tenant does not understand or could never comply with, particularly when up against a lawyer for the landlord. (Joe Lamport last month wrote about these hallway settlements in Gotham Gazette’s housing topic page.) In addition to judges being prohibited from giving legal advice, Housing Court judges are not elected, but appointed, and for only five year terms; they are acutely aware of the problems they could experience in their own careers. If they are seen as being "pro-tenant," they could risk not being reappointed.

With Legal Services, the Legal Aid Society and housing clinics facing strained budgets, cutbacks, overwhelming caseloads and severely overworked staffs, Scherer continues to press the position that anyone facing the loss of a home should not only be entitled to representation as a matter of fairness, but under law. The conference report calls Scherer's analysis "persuasive" and adopts his view. But neither the legislature nor the courts have ever been persuaded.

Nobody is counting on a tenant right to counsel anytime soon, even though stakes in Housing Court are high -- evictions...and more homelessness.

Emily Jane Goodman is a New York State Supreme Court Justice 

Cop Killings -- Will The New Laws Do Any Good?


In the wake of two fatal shootings of New York City police officers in the space of less than two weeks, the New York State Legislature sprang to action so that it could, well, appear to be springing to action.

At the end of the special legislative session, they had passed two new laws. The first increases penalties for those caught with illegal guns, while the second increases penalties for those who kill or threaten police officers. It was an impressive exercise for a legislature that routinely struggles with such tasks as passing a budget, and which has failed in its attempts to pass similar bills for several years running.

However, the more important question is whether the new laws will lead to less gun crime and fewer attacks against police officers, and that question is still an open one.

Police Shootings and the Tabloid Crusade

In the early morning hours of December 10th, off duty New York City police officer Daniel Enchautegui was shot and killed as he investigated an ongoing burglary in a neighbor’s home. According to news reports, Enchautegui identified himself as a police officer before one of the suspects shot him. Though injured, the officer apparently returned fire at least six times, hitting both suspects. Officer Enchautegui was taken to the hospital, where he died less than an hour later.

Police officers responding to Enchautegui’s call for backup arrested the two wounded suspects. The suspects were identified as 48-year old Steven Armento, and 29-year old Lillo Brancato Jr., an actor who had starred in 1993 in "A Bronx Tale," directed by Robert DeNiro, and had gone on to a recurring role in The Sopranos and minor parts in other movies. Armento and Brancato were arraigned several days later in the Bronx hospital where they were being treated, on charges including murder.

Enchautegui was the second New York City police officer killed in 2005. The first, Dillon Stewart , was killed less than two weeks earlier, on November 28th.

While the tabloids initially played up the Sopranos link, their reaction quickly turned to rage. Both the New York Daily News and the New York Post ran a series of editorials demanding that the state legislature convene a special session to increase penalties for gun crimes. An guest essay in the Daily News called for the reinstatement of the death penalty.

The Special Legislative Session

At least partly in response to these calls, on December 16th Governor George Pataki called a special session of the state legislature to consider his proposals to fight violence against police officers and trafficking of illegal firearms. Pataki’s proposed bills included authorizing the death penalty for the killing of a police officer. The Post, uncharacteristically, opposed the governor’s move as an inappropriate attempt to reinstate the death penalty through the back door, and Pataki and Senate Majority Leader Joseph Bruno eventually agreed to drop the provision. Democrats in the State Assembly were pursuing new regulations on gun dealers that would have required better record-keeping and training of employees, which they said would prevent illegal sales and assist in investigating gun crimes. The Republican-controlled State Senate opposed such measures, however, and Assembly leader Sheldon Silver agreed to drop the provision.

The Senate and Assembly reached a compromise on December 21st, passing two new bills, which Governor Pataki signed into law that evening. The bills enhance punishments for the sale and possession of illegal firearms, including making it a felony to possess three or more firearms illegally (it was previously only a felony to possess twenty or more). The bills also increase the maximum penalty for the murder of a police officer to a life sentence without the possibility of parole, and enhancing punishments for other crimes against police officers, peace officers, and corrections officers.

Will the New Laws Do Any Good?

It is easy and perhaps unfair to question the motives behind the special legislative session. Had the deaths of Officers Stewart and Enchautegui not come so close to each other, it is unlikely that these new laws would have been passed. The fatal shooting of two New York City police officers is two too many, but it is worth remembering that four officers were killed in the line of duty in 2004, unaccompanied by fevered editorial campaigns by the city’s newspapers.

But what of the merits of the laws? Will they prevent gun trafficking and violence against cops?

Supporters of the new legislation contend that the new law will send a “tough on crime” message, and deter illegal gun trafficking by increasing the penalties for those who possess and sell illegal guns in New York.

But surely enhanced penalties are not a panacea. New York already had programs in place to provide greater penalties for gun crimes. Specialized gun courts in Brooklyn and Queens, for example, have been operating for several years, and have resulted in jail time for a number of defendants who otherwise would have been given probation. In addition, many gun possession cases, especially when the defendant has a criminal record, are passed up to federal prosecutors, since penalties for gun possession are much harsher under federal law.

Moreover, studies have suggested that the certainty of punishment deters crime more effectively than the severity of punishment . With this in mind, Governor Pataki’s recent pledge to commit one hundred state police officers to work with federal Alcohol, Tobacco and Firearms agents to track illegal guns is a welcome one. According to the governor, the officers will also be deputized to make arrests in other states.

The general consensus seems to be that the new laws are a necessary first step. State legislators on both sides of the aisle have pledged to revisit the issue in the next session. In the end, however, it is likely to take more than action by the state legislature to make a real dent in the problem of illegal gun trafficking. As Mayor Michael Bloomberg argued on his weekly radio show, after the passage of the new legislation, lax gun control laws in other states fuel much of the illegal trafficking of guns that end up on New York’s streets.

David Dean, a student at New York University School of Law, worked as a policy analyst in the Mayor's Office of the Criminal Justice Coordinator. 

High Profile Crimes Post Election


Mayor Michael Bloomberg won re-election in part because he fulfilled an unlikely promise he made in his first campaign four years ago -- to continue the drop in crime –- and spent millions of dollars making sure New Yorkers knew about it. Assuming you believe the numbers (and Paul Moses, writing in the Village Voice, clearly does not), major crime has decreased by 18 percent citywide since Bloomberg was first elected in 2001.

Yet for all his efforts at publicizing the drop as his major accomplishment, New Yorkers may (as a recent poll suggests) give primary credit for the drop in crime to Police Commissioner Ray Kelly and his several initiatives:

Operation Spotlight targeted the low-level, quality of life offenders that repeatedly cycle through the court system by providing stiffer penalties for these “career misdemeanants.”

Operation Impact sent floods of rookie officers and police resources into targeted “impact zones,” an initiative that Kelly credits for reducing violent crime in those neighborhoods.

Operation Atlas focused on protecting the city from future terrorist attacks.

No new Operations were promised (nor further crime-fighting strategies specified) in the re-election campaign, and if Bloomberg is not getting the credit for the good crime news of the past four years, it is probably safe to assume that he will be blamed for any bad crime news over the next four.

The bad news seems to have begun; at the end of November, the New York Post, in an article entitled Bloody Legacy, reported an increase in shootings of six percent from last year.

While crime levels remain low for now, the public perception of public safety can be easily shaped by the kind of high profile cases that have been in the news since the election last month.

Police Officer Killed in Brooklyn

Dillon Stewart, a 35-year-old New York City police officer, was shot and killed on November 28th after stopping man for running a red light in East Flatbush, Brooklyn. Reports indicate that even after being shot, Stewart continued driving after the suspect until the chase ended at a nearby parking garage.

The next day, police arrested 27-year old Allan Cameron and charged him with the murder of Stewart, as well as the attempted murder of another New York City police officer, Wiener Philippe,on November 19th. According to the New York Times, Cameron has had run-ins with the law before in both New York and Pennsylvania. Cameron was arraigned in Brooklyn after being led to the courtroom through a hallway lined with police officers.

Governor Pataki used Dillon Stewart’s death as an opportunity to call for the reinstatement of the death penalty/ Mayor Bloomberg responded by restating his opposition to capital punishment , noting that he’d “rather lock somebody up and throw away the key.” The mayor also reiterated his support for stricter gun laws. With the Post reporting that the gun used to shoot Stewart has quite a criminal history of its own, perhaps this time people will listen.

High-Profile Sexual Assaults

In recent weeks, several sexual assault cases have also gotten traction in the local media. While the Police Department’s statistics say that reported cases of rape are down 4.3 percent compared to a year ago, these cases play on some of our most basic fears about violent crime.

On November 21, two police officers were arrested and charged with sexually abusing a woman while they were on duty. The officers allegedly attempted to assault the woman after stopping her car in Bushwick, Brooklyn, then followed her back to her apartment where the assault continued.

More prominent has been the case of Peter Braunstein, which has captivated the local papers and television news for much of November. According to reports ( “An assailant on the loose. A city in fear,” said the Daily News), the police suspect that Braunstein, a former journalist, is the man who attacked a Chelsea woman on Halloween night. Police say he dressed up as a firefighter, and set several small fires to get into the woman’s apartment, where he assaulted her. But Braunstein has remained at large, and New Yorkers are reporting Braunstein sightings all over town -- a cafe, a dry cleaner, etc.

Extended Sentences and Increased DNA Collection

Governor George Pataki and Manhattan District Attorney Robert Morgenthau have both recently called for an end to the five-year statute of limitations for rape cases . With backlogs at DNA laboratories and delays in identifying perpetrators even where a DNA sample exists, there have been cases where police have identified probable rapists too late to bring charges. In Manhattan, prosecutors have attempted to bring so-called “John Doe indictments” where they have a DNA profile but do not know a perpetrator’s identity. However, as the Daily News notes, only thirty-two such indictments have been handed up, and the legality of the practice is an open question.

The governor has also advocated for a law requiring the state to collect DNA samples from anyone convicted of a crime, including misdemeanors. In a statement , Pataki said that expanding DNA collection will help “convict the guilty, exonerate the innocent, and bring justice to victims.” Opponents argue that such a measure is an invasion of privacy, and brings the potential for abuse. Those who might look to DNA as a panacea would also be wise to recall recent large-scale foul ups at DNA labs in Virginia and Houston, Texas as suggesting that the technology is still vulnerable to human error.

An even more questionable strategy has been the attempts to keep sex offenders locked up after their prison terms have run out. On November 15th, Manhattan judge Jacqueline Silbermann ordered the state to release twelve individuals who had been involuntarily committed to state psychiatric hospitals following their state prison sentences. Noting that, for example, two of the men had been diagnosed only with Antisocial Personality Disorder (a diagnosis shared by 75 percent of the prison population, and, one imagines, many outside the prison population), Judge Silbermann said that the twelve (dubbed “The Dirty Dozen” by the tabloids) were being held in violation of state law. Governor Pataki responded by locking up fourteen more offenders , and appealed the judge’s ruling to a higher court, where he was granted a stay.

Bloomberg stopped short of endorsing Pataki’s tactics, instead calling on the legislature to impose higher mandatory sentences for sex offenders, including up to life in prison. D.A. Morgenthau has called for a similar change in the law.

David Dean, a student at New York University School of Law, worked as a policy analyst in the Mayor's Office of the Criminal Justice Coordinator. 



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