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Depraved Indifference and Second Look Sentencing


first lady chir2

(photo: Michael Appleton/Mayor's Office)


Valerie Gaiter died in Bedford Hills Correctional Facility last week. She had been in prison longer than any woman in New York State.  She had cancer. She was 61 and had served 40 years of a 50-years-to-life sentence for her conviction of the murder of two elderly people in Brooklyn in 1979. She was eligible to see the Parole Board in 2029 when she would have been 71.

Edgardo Gonzalez is in Fishkill Correctional Facility. He is 75. He has chronic liver failure, hepatitis, and other ailments. He has lost almost 40 pounds in the last four months. He has served 36 years of a 50-years-to-life sentence for his conviction of the murder of two people in a Brooklyn social club in 1983. He will be eligible to see the Parole Board in 2034 when he would be 90 years old.  

To be perfectly clear, Ms. Gaiter and Mr. Gonzalez were convicted of brutal crimes. Lives were taken. Families were devastated. The harm caused is incalculable. 

And yet, how much time must someone serve for a violent crime? This question must be confronted to redress the crisis of mass incarceration, since the vast majority of the 2.3 million people in United States jails and prisons were not convicted of so-called low-level, non-violent offenses. 

As long as people are defined as “violent criminals” it becomes easy to banish them forever and talk about the crisis of mass incarceration but do nothing to end it. Those serving life sentences are more than the crimes they committed. It is time to interrogate whether those who promoted get tough on crime policies continue to perpetrate their own violence by ensuring that older, reformed offenders die in prison.

Mr. Gonzalez has a stellar institutional record and extensive family support. He presents no threat to public safety. He’s received only one disciplinary ticket in 36 years and that was for having an untidy cell (a photograph of his mother taped to the wall). My students submitted a clemency application on his behalf two years ago but have yet to receive any response.  

I met with Mr. Gonzalez last week at the Regional Medical Unit at Fishkill prison. Not that long ago, he was a robust former boxer in excellent health. He once fought future Olympic gold medalist Howard Davis in Madison Square Garden. Pictures of that match showing a chiseled athlete in the prime of his career were part of his clemency application. Now his health is in rapid decline. He is confined to a wheelchair and struggles to breathe. His voice is barely a whisper.

Mr. Gonzalez asked what the law meant by “depraved indifference.” In 1983, he was inside a social club when a melee broke out. Mr. Gonzalez was shot through the stomach, but also shot and killed his assailant. For that, he was convicted of intentional murder. Another shot fired by Mr. Gonzalez killed a woman standing nearby. For that, he was convicted of what the law calls depraved indifference murder. 

As we discussed the law regarding depraved indifference murder, it was impossible not to think about how the state treated Valerie Gaiter, Edgardo Gonzalez, and the thousands of others serving death by incarceration sentences. 

The law says you are guilty of depraved indifference murder if you engage in conduct that creates a grave risk of death and are aware of and consciously disregard that risk. We know the grave risk, indeed the likelihood, of death in prison for people serving life sentences. According to a report by New York’s Department of Corrections, the average age of death for those who died in state prison of natural causes was 57. And yet, that risk is regularly disregarded as sentences like those imposed on Valerie Gaiter and Edgardo Gonzalez are often sought by prosecutors and imposed by judges.

The courts further define a depraved indifference state of mind as exhibiting an utter disregard for the value of human life; simply not caring whether grievous harm will result. Depraved indifference is said to reflect conduct that is wanton, deficient in a moral sense of concern, devoid of regard for the lives of others. 

It is wanton, morally deficient and utterly devoid of regard for the value of human life to preclude the potential for redemption; to ignore all those who have long since aged out of any threat of future crime, especially those who are living out their final days in prison medical units. 

We must take steps to ensure that the state no longer acts with depravity toward those in prison.  

Sentencing laws must be reformed to bring the United States in line with other industrialized nations where a 20-year maximum is the norm. Prosecutors and judges must stop the common practice of seeking and imposing maximum sentences on those who exercise their constitutional right to a trial.

But the most far-reaching fix is the one proposed by the American Law Institute’s revisions to the venerable Model Penal Code – second look sentencing. 

The Code urges state legislatures to enact a “second look” provision; to create a mechanism to reexamine a person’s sentence after 15 years no matter the crime of conviction or the original sentence. It is not a “get out of jail free” card. Release must be earned. It must be evident that the person is not a threat to public safety and there must be evidence of rehabilitation; proof that the person has changed, come to grips with, accepts and acknowledges their actions and the harm they caused. 

The Code recognizes that a sentence once imposed is not just, fair, and appropriate in perpetuity. Second-look mechanisms are meant to recognize the possibility of transformation and allow for mid-course correction if warranted by changed circumstances -- major changes in the offender, the crime victim, or the community. It is consistent with the growth of restorative justice that eschews punishment paradigm of the last several decades and is also a way to confront the systemic racism revealed in arrest and sentencing disparities.

Such a bill was introduced in the last New York legislative session regarding parole eligibility for people who are least 55-years-old and have served at least 15 years. There will be costs associated with establishing such second-look processes, but money will ultimately be saved as more people are sent home from prison. Most importantly, basic human decency should compel a different result for Valerie Gaiter and the many others facing the prospect of dying behind bars.  

In the meantime, we must use the limited procedures available to ensure a measure of dignity to those at risk of perishing in prison. New York does have a mechanism in place for compassionate release for those with terminal illness. However, according to a study by the Vera Institute of Justice, there were 476 requests for compassionate release from 2013-17, but only 72 people were ultimately released. On the other hand, 143 of those medical parole applicants died in custody, demonstrating why other, more comprehensive, solutions are necessary.

Edgardo Gonzalez was recently certified by corrections medical personnel as one of the few people eligible for medical parole. He had his medical parole interview before the Parole Board last week. To deny him parole would be the height of depraved indifference.

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

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Seeing Healthcare Through a New Lens


healthcare seeing

(photo: @sunyopt)


Most people have heard the saying that the eye is the window to the soul. But what they may not know is that the eyes also hold the key to revealing underlying health issues for many individuals.

As optometrists, we recognize that making eye exams accessible to underserved families can be a critical first step in addressing healthcare disparities in New York City. And as healthcare providers, we’re always looking for new ways to educate patients about the importance of preventative care as a first step in detecting chronic, systemic health issues and ultimately to enhance population health.

Brownsville and Battery Park are just nine miles apart, but life expectancies of their residents are more than ten years apart. Something as simple as an eye exam can help fix that. That’s why, three years ago, SUNY Optometry created the Health and Wellness Expo to bridge the gap between the most-vulnerable members of our society and healthcare professionals. By offering free screenings for vision, dental care, podiatry, as well as access to cholesterol, Body Mass Index, and diabetes testing, community members can engage with health professionals and start taking control of their wellbeing.

An eye exam is never just an eye exam. A routine eye exam offers far more than simply testing eye and visual health. It provides insights into the future health of a patient and reveals opportunities to enhance quality of life.

Eye examinations are especially critical for the pediatric population because good vision is crucial to children’s cognitive development. However, children from underserved and underrepresented communities often lack access to eye examinations based on perceived barriers – frequently, a result of financial challenges within the family.

The Expo, which was initially billed as a back-to-school event three years ago, and with less than 500 participants, has evolved into one of our most important community outreach initiatives. At our most recent Expo on August 3, we welcomed nearly 1,000 New Yorkers who had a chance to interact with health professionals and community-based organizations.

We know that race, ethnicity, and economic hardship are contributors to healthcare disparity, and it not only impacts the affected group but our entire community.

By connecting families to community health organizations from all over the city, we are working to ensure that no particular group remains marginalized.

The facts are troubling: Approximately 60 percent of children with learning difficulties have a form of undetected vision impairment. Twenty-five percent of school-aged children have an eye problem that limits vision. More than 60 percent of parents don’t include eye exams as part of their children’s healthcare routine.

Determined to ensure that financial barriers do not become an impediment to healthcare access, we formed critical partnerships with community organizations across all five boroughs.

By offering free vision screening alongside other health services providers, children and their families now have access to additional healthcare services and educational resources. More importantly, we are helping to eliminate one of the barriers that often translate into academic challenges for children.

When people think about healthcare, they often do not immediately think of optometry or the impact that eye care has on overall wellbeing. Nor do they realize that a simple eye exam can be a window to uncovering other chronic diseases. We know that eye health is critical, particularly among low-income communities and communities of color where rates of diabetes are high, leading to loss of eyesight.

As the only institution in New York State that educates Doctors of Optometry, we owe it to our communities to improve the health of our population through better eye care.

We understand the challenges that thousands of families in New York are experiencing. We know this because, across our clinical care system, we encounter nearly 250,000 patient visits annually, in addition to training the next generation of leaders and scholars in eye care, education, and research. One out of every two optometrists in New York are graduates of the SUNY College of Optometry. We must do all we can to prepare the next generation of healthcare providers to care about the communities they serve.

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Dr. David A. Heath has served as president of the State University of New York College of Optometry since June 2007. He is the third president of SUNY Optometry, which was founded in 1971 and is one of the 64 campuses constituting the State of New York’s public university system. On Twitter @SUNYOPT.

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Replacing Unsuccessful ‘Community Benefits Agreements’ with Neighborhood Stock Ownership Plans


yankees nycfc stadium

(photo: Michael Appleton/Mayoral Photography Office)


When Jeff Bezos, the world’s wealthiest man, and Amazon sought to locate a major campus in New York City, they ran into a buzzsaw of opposition that derailed the project. Despite the promise of tens of thousands of jobs and millions of dollars in local investments, members of the community reacted to the company’s planned arrival with fear and fire. Rallies against the tech giant occurred weekly. Elected officials orchestrated public hearings where they criticized the corporation. Lots of bad press accompanied the news that Bezos would have his own helipad.

Neither Governor Cuomo nor Mayor de Blasio could put this Humpty Dumpty deal together again. After months of disgrace, Amazon withdrew.

Now, the world’s third-wealthiest man, Mansour bin Zayed, owner of the New York City Football Club, wants to build a soccer stadium in The Bronx. And, like Bezos in Queens, he’s likely to run into a storm of opposition from that community. What can be learned from the Amazon issue that can help both the neighborhood and the stadium project?

The collapse of the Amazon move into Long Island City signaled the end of the era of the “Community Benefits Agreement” (CBA). The benefits agreement strategy has been used by neighborhoods for decades to confront gargantuan development projects like sports arenas or corporate expansions. But decades of unfulfilled promises made by corporations and government officials to communities have sullied the reputation of CBAs. New York City neighborhoods have become suspicious of agreements that can be (and have been) ignored by behemoths like Amazon, Forest City Ratner, and politicians.

The Barclays Center was created with a CBA. The new Yankee Stadium came with a CBA. And, the current talk about a Bronx professional soccer stadium includes conversations focused on perks promised to the host neighborhood, like jobs and housing for local residents. But the promise of perks never convinced Queens that the Amazonian tech giant and the world’s wealthiest man were worthy of their support.

Civic groups in Queens like those in the Bronx and Brooklyn have become disillusioned because these benefits agreements lack enforcement. At Yankee Stadium, members of the community board who opposed the new ballpark and its CBAs were removed from the board. In Brooklyn, small businesses feel ripped off by the developer whose community benefits promises lacked the force of law and transparency. In Queens, local elected officials were left out of the negotiations by the mayor and the governor.

New York City neighborhoods need a new strategy to safeguard their integrity and create a partnership among residents, local businesses, nonprofits, government, and developers.

I propose a new approach, a Neighborhood Stock Ownership Plan (NSOP), modelled after employee stock ownership plans (ESOPs).

ESOPs have been around since 1956. Across the country, there are nearly 7,000 ESOP companies covering more than 14 million participants. In ESOPs the workers earn the right to buy shares in the company at a discount rate based on the number of years they have worked there. These worker-shareholders have a seat on the company’s board. Profits are shared with employees through dividends and increases in the stock price. Transparency abounds, and so does workplace satisfaction.

The ESOP model can be modified to reflect and reinforce lots of different stakeholders, not just employees. It can become a mechanism by which residents, local businesses, employees, and civic organizations become partners with, not opponents of, a developer.

This is how a Neighborhood Stock Ownership Plan could work: those who live, work, or own a business in the development area will be given stock options based on the length of time they’ve lived, worked, or operated a business in the project district. Nonprofits in the vicinity would also be gifted shares based on their membership. Instead of agitating, NSOP members will be aggregating money, based on the revenues of the company and its stock price.

This NSOP will protect communities from having to settle for corporate hand-outs. It will tie the community and the corporation together so that revenue for the company automatically means money for the community.

If a soccer stadium were built in the Bronx, for example, an NSOP would mean that broadcast fees, stadium naming rights, and merchandising deals benefit those whose transportation, trash, and tranquility will be impacted by the sports venue. Using an NSOP framework would give neighbors and newcomers a common ground to discuss corporate policies and procedures. With an NSOP, the dynamics of patron and patronage that created hostile environments for Amazon, Barclays, and likely a new soccer stadium could be avoided.

Whatever is good for the community will be good for the corporation and vice versa.

Will the stadium developer, the team owners, the mayor and the governor have the foresight to reject the old “community benefits” strategy and try a new approach? Will they see the soccer stadium project as a chance for social innovation and community support? Seems to me like a good goal (pun intended) for everyone.

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Dr. Cary Goodman is executive director of the 161st Street Business Improvement District at Yankee Stadium.

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