Brooklyn Defender Services is excited to invite our neighbors and partners to join us in celebration of the one year anniversary of BDS’ Community Office at 566 Livonia Ave.

We are thrilled to have a presence in East New York and to serve Brooklyn residents with legal information, education and assistance.

Light refreshments will be served.

RSVP here.

TESTIMONY OF:

 

Hemangi Pai – Criminal Defense Practice

 

BROOKLYN DEFENDER SERVICES

 

Presented before

The New York City Council

Committee on Justice System

            Oversight Hearing on the Cost of Justice

September 27, 2018

 

My name is Hemangi Pai and I am a senior staff attorney in the criminal defense practice of Brooklyn Defender Services (BDS). Our organization provides multi-disciplinary and client-centered criminal defense, family defense, immigration, civil legal services, social work support and advocacy in nearly 35,000 cases involving indigent Brooklyn residents every year. I am a senior staff attorney on the Brooklyn Adolescent Representation Team (BART), a specialized unit at BDS made up of dedicated attorneys and social workers who represent over two thousand adolescents ages 13-24 annually. During my tenure at BDS, I have defended hundreds of young people accused of crimes in Brooklyn’s criminal and Supreme Court.

I thank the New York City Council Committee on Justice System, and in particular Chairperson Rory Lancman, for the opportunity to testify about the use of monetary penalties in our criminal legal system. On any given day, thousands of indigent people plead guilty to crimes or non-criminal violations and become burdened with various court-imposed fines, fees and surcharges that they have no ability to pay. This continues to be an issue that disproportionately impacts poor defendants and their families, particularly those who are Black and Latinx.

Introduction

Monetary penalties have a deep and pernicious impact on people with criminal legal system involvement. These penalties include: bail, fines, restitution, and child support obligations that are ordered by the court. New Yorkers may also be subject to surcharges, user fees, late fees, payment plan fees, and interest. Unpaid debt often accumulates, making it more difficult to pay, affecting a person’s employment options, credit applications, ability to obtain loans and housing, driver’s license, and sometimes even leading to incarceration.

Fines and fees are an enormous source of income for state and local entities. In 2017, for example, village and town courts in New York State collected a total of $171 million in 2017 just for traffic tickets and other minor violations.[1] In the same year, the New York State Office of Court Administration reported an intake of $607 million from all state, county and city remedies, though not all of that revenue came from defendants or their families.[2]

As with most aspects of the criminal legal system, monetary penalties disproportionately impact poor Black and Latinx people and their families. The legal system’s reliance on financial penalties siphons much-needed money from already vulnerable communities and deepens inequality in our society.

Client Story

A few years ago, the BDS adolescent team represented Maria, a high school student with no prior criminal record who was accused of a misdemeanor. Maria participated in Young New Yorkers, an eight-week youth arts program, and pleaded guilty to disorderly conduct, a violation that allowed her to avoid a permanent criminal record. However, people convicted of violations are required to pay a mandatory surcharge of $95, with a crime victim assistance fee of $25, for a total of $120.

Maria was still in high school and had no source of income or immediate job prospects. Maria lived with her mom, who did not have a job or any other source of income. Though the court deferred the payment to a later date, she would be subject to a civil judgment if she could not pay the $120 by the court-required deadline. A civil judgment would act as a lien against future property and would have remained on Maria’s credit score for up to seven years, even if she managed to pay it off, limiting her ability to obtain school loans, rent an apartment, secure employment, and even obtain healthcare. BDS filed a resentencing motion on behalf of Maria, in the interest of justice, and we convinced a judge to waive the surcharge, allowing Maria to graduate high school and pursue her dream of going to college without these mandatory and unaffordable surcharges and fees hanging over her head.

Another recent example is Marcus, a Black teenager, whom we represented after he was brought into late-night arraignments because he failed to pay a fee on a marijuana summons a few months earlier. The warrant squad arrested him at his home and took him into custody, where he remained for hours before he was finally brought before the judge. To the credit of the King’s County DA’s Office, once the Assistant District Attorney saw the charge, they immediately dismissed the case. But Marcus still suffered the indignity of being forced from his home in handcuffs and detained in a putrid holding cell because he was too poor to pay the fine for engaging in behavior that is now legal in seven other states, and that white people throughout New York City regularly engage in without fear of arrest or fines.[3]

Mary and Marcus are just two of the hundreds of clients that I and the rest of the BART team represent every year who are impacted by heavy fines and fees that limit their ability to overcome their previous criminal legal system involvement. We call on the Council to require more extensive reporting on this issue and to join with advocates to call on the state legislature to end, wherever possible, this systemic extraction of wealth from poor people.

 Fines and Fees

Fines

Fines are monetary punishments for infractions, non-criminal violations, misdemeanors or felonies. Fines are usually intended to deter crime and compensate victims for losses, but given the broader inequalities in our criminal legal system, they unduly burden poor defendants and their families. Depending on the conviction, fines can be used as an alternative to incarceration, but in many cases, if a person cannot pay then they will be incarcerated. Currently, the statute for collection of fines and surcharges stipulates that payments are first allocated to surcharges, then to fines, which is problematic because non-payments of fines can land a person in jail.[4] Some common fines are listed below:

 

	Level/Type of Offense	Fine Amount	Notes
Crimes	Felonies (A-I, A-II, B, C)	$15,000 – $100,000[5]
	A misdemeanor	$1,000 or double the value of the property disposed of in the commission of the crime[6]
	B misdemeanor	$500[7]
Non-Criminal Violations	Violation	$250 or as specified for the violation[8]
	Disorderly behavior	Up to $200[9]
Vehicle and Traffic Law Violations	Traffic infraction	$75 to $2,000[10]
	Traffic misdemeanor	$300 to $2,500
	Traffic felony (E, D)	$1,000 to $10,000[11]
Prison and Jail Infractions	NYCDOC disciplinary infraction	$25 per ticket/rule violation[12]	This usually is in conjunction with other punishment such as solitary confinement and other restrictions, essentially a perverse system where individuals pay to be locked up in “The Box.”
	NYSDOCCS disciplinary infraction	$5 per infraction	Same as above.

 

Fees

Fees are itemized payments for court activities, supervision or incarceration charged to a defendant found guilty of infractions, misdemeanors or felonies or individuals who have not been charged and are going through the criminal justice process. Fees serve as a regressive form of punishment because criminal debt presents an increasingly larger burden for a person on the lower end of the income scale. Moreover, when a person cannot pay the cash amount of the court-mandated financial penalty upfront, their debt only grows with payment plans fees, late payment fees or interest. We list below many, but not all, of the fees that typically burden our clients and their families.

Surcharges and fees:

• Mandatory surcharges[13]
  • Felony – $300 and a $25 crime victim assistance fee
  • Misdemeanor – $175 and a $25 crime victim assistance fee
  • Violation – $95 and a $25 crime victim assistance fee
• DWI probation administrative fee – $30 per month[14]
• Parole supervision fee – $30 per month[15]
• DNA databank fee (including for people who have already had their DNA taken) – $50[16]
• Sex offender registration fee – $50[17]
• Supplemental sex offender victim fee – $1,000[18]
• Supervision fee while in prison – $1 per week[19]
• Termination of license fee – $100[20]
• Administrative fee of 3% on every credit card bail payment
• Non-refundable 2.49% fee per transaction for online bail payments
• Fee for obtaining one’s own RAP sheet (which may be riddled with errors) – $65

As we know from Intro. No. 741, a bill the Council recently passed to make domestic phone calls in Department of Correction facilities free to people in city jails and their families, our system has many egregious user fees that often go unnoticed unless brought to the forefront by advocates and elected officials. We want to reiterate our thanks to Speaker Johnson and the Committee on Criminal Justice for passing Intro. No. 741 and hope we can continue the momentum towards eliminating other costs that burden indigent people and their families.

The reality is that paying fines, fees or any monetary penalty comes with a very real human cost. Every time a person shows up to court to resolve their case or make payments towards their financial penalty they have to take off from work, which means potentially losing income for that day or days. People who are reliant on the subway have to pay $2.75 per ride to get to and from the courthouse to go before the judge or to make payments at the courthouse. The money they pay could have gone toward rent, food, medicine, or other necessities.

Punishments for people who cannot pay their criminal debt

Fines and fees incurred during the criminal legal process may follow people months or years after their case is resolved. Even for people who have not been sentenced to jail or prison, the non-payment of monetary sanctions may lead to unnecessary warrants, arrests, incarceration or probation revocations. For people on parole, failure to pay the supervision fee can be used as a reason to deny early discharge or a person’s application for a Certificate of Relief from Disabilities or a Certificate of Good Conduct.[21] Unfortunately, our clients are sometimes rearrested and sentenced to up to 15 days in jail for failure to pay these fees. When we ask for an indigency hearing to prevent our clients from incarceration for inability to pay, judges may be skeptical, asking why our clients asked for time to pay in the first place if they could not actually do so. Financial hardship is not static – for many of our clients living paycheck to paycheck or on fixed incomes, their ability to afford their day-to-day expenses can change quickly and unexpectedly. But for people interacting with the criminal legal system and experiencing poverty, these changes that make it impossible for a person to pay a fine or fee may result in incarceration, exacerbating harm to both our clients and their families, simply because they are poor.

Fines also follow our clients who are sentenced to jail or prison time. People in City jails may have their minimal wages or commissary accounts garnished to pay off accumulated fines, surcharges and fees. The state prisons system may also garnish payment from an incarcerated person’s commissary account, money earned from work release programs or any source of income or money in a person’s possession. For people incarcerated in upstate prisons who owe criminal legal debt and are paid pennies for every hour worked, the state removes 20 percent from their commissary every two weeks and 50 percent of any money added to their account by a loved one or family members.[22] Also, the New York State Department of Corrections and Community Supervision regularly takes two percent of funds in a commissary account for the $40 (also known as “gate money”) given to every person upon their release.[23] The parallels between slavery and Jim Crow and this nearly-unpaid work scheme for incarcerated people are staggering and are not lost on our clients and their families. Our clients frequently tell us that fines and fees limit their ability to overcome their criminal legal system interactions and move on with their lives.

How is the money being allocated?

It takes a great amount of time and research to track these fines through the criminal legal system and figure out how they are being allocated. I am sure we do not know all the ways the city and state use money that extracts from poor New Yorkers who become involved in the criminal legal system, but we are sure that it is not being reinvested into more needed programs or into the communities as viable resources. However, we were able to find out some of the places where money is being allocated. Based on the Criminal Court of the City of New York 2016 Annual Report, $29,828,600 was generated from fines, summons, DNA fees, transcript fees, bail and more.[24] This money went to the “operational cost of the unified court system.” A New York State Commission of Correction report found that as of March 2017, “there was $3,538,419.60 waiting to be transferred to the Police Property Payable Fund.”[25] This figure refers to money that belonged to incarcerated people that was not returned to them after their release. BDS is well acquainted with how difficult it is for our clients to have their own money returned to them after their release from DOC custody. It is unconscionable that the City has not improved this process and allows the police to utilize this money to continue to target and arrest poor people of color. In short, it is unscrupulous for our city and state to collect money from impoverish communities and not be transparent about how and where the money is being allocated.

Racial biases in arrests and summonses generate revenue for the criminal legal system and perpetuate harm

Fines and fees are particularly problematic because of the intentional discrimination, racial bias and stereotyping of Black, Latinx and immigrant communities that leads to the racial disparities that are well-documented at every stage of the criminal legal system.[26] It is unconscionable that in our progressive city we continue to create and bolster more ways to extract money out of low-income communities of color, while neglecting to sufficiently invest in them as a means to prevent the continuous interaction with the justice system.

Pushed by advocates for criminal justice reform, and in this era of heightened awareness about racial disparities in NYPD enforcement and the immigration impacts of criminalization, New York City has begun to reduce arrests for certain low-level offenses. Indeed, misdemeanor arrests have declined in most categories. However, it is important to recognize replacing racially targeted arrests with racially targeted summonses does not end the harm. Criminal summonses, which can result in warrants that trigger pre-trial detention upon arrest, and civil summonses, which can damage a person’s credit and even trigger debt collection, are not the answer to an unequal criminal legal system. This is particularly true for offenses linked to poverty, such as fare evasion, where hefty fines are clearly out of reach for those who could not afford a $2.75 fare in the first place. Instead, we should question the impulse toward punishment altogether, and pursue models of support and harm reparation that do not involve police.

Impact on young people

On any given day, hundreds of indigent young people plead guilty and become burdened with various court-imposed fines, fees and surcharges that they have no ability to pay. This includes children 16 and 17 who, even after Raise the Age is fully implemented, will be forced to pay $120 in fees if convicted of disorderly conduct. These court costs discriminate heavily against the poorest young people. Young people from middle-class families who can afford to pay the court costs on their behalf face a mere inconvenience while young people from poor families face what is in many cases a longer lasting punishment than the sentence. When a person cannot pay the costs associated with criminal justice involvement, these costs are entered as a civil judgment against them. A civil judgment ruins young people’s fledgling credit scores before they even have a chance to develop them and erects barriers to becoming responsible income-earning adults. A civil judgment on a credit score affects the young person’s future applications for apartments, employment, car loans and even student loans, even though these resources are correlated with reducing recidivism.

Recommendations

City Actions

The City should compile a comprehensive list of all the user fees, fines and surcharges that exist within the criminal legal system, imposed at the state and city level, and document the total revenue generated, where it is going and how it is spent. This information should be easily accessible to the public, so that people facing criminal justice involvement and their families can know the costs that they potentially face.

The Council should also require reporting on the number of New York City residents who are incarcerated or had their driver’s license suspended because of their inability to pay a fine, surcharge or fee and the number of civil judgments issued against defendants by the courts.

If the City imposes any user fees on criminal defendants, the Council should eliminate them or allow judges or clerks to waive them for indigent people. Additionally, the City should eliminate other costs imposed on incarcerated people and their families, such as JPAY service charges and fines for alleged infractions in city jails.

The City should assess current criminal debt collection practices, with particular attention to the practices of private debt collection agencies. Often there are little to no enforceable regulations when people attempt to seek recourse against these entities for abuse or misconduct.

Supporting State Reforms

The Council should join with advocates to call on the New York State Legislature to eliminate or significantly limit most court fines and fees and call for broader discretion for judges to waive them for indigent defendants. People should never be incarcerated due to failure to pay criminal court debt, especially if the court has not made an ability-to-pay determination. People should never be saddled with a civil judgment for failure to pay criminal legal debt absent a court determination that they are not indigent (i.e., able to pay without unreasonable hardship). Fees and fines should be tailored to an individual’s ability to pay and courts should be allowed to reduce or eliminate such fines and fees based on a person’s change in circumstances.

One suggestion is to pass a Resolution in favor of A.9786/S.7917, a bill that passed the New York State Assembly earlier this year, that would authorize judges to waive certain surcharges and fees for a defendant under the age of 21 under certain circumstances. That said, BDS believes that all indigent people, regardless of age, should not be burdened with the financial responsibility for our legal system.

Conclusion

Financial penalties exacerbate both the economic and emotional distress for impoverished families involved in the criminal legal system. These penalties force families to choose between paying court fines and fees or paying for basic needs such as rent or food, putting pressure on family ties. This hearing is an important first step in better understanding the problems associated with fines and fees and the burdens they impose on our communities, but further investigation is necessary to provide a full understanding of what steps the Council can take to address this problem.

Thank you for your time and consideration of this important issue. If you have any questions, please feel free to reach out to Saye Joseph, Policy Associate, 718-254-0700 ext. 206 or scjoseph@bds.org.

[1] Michelle Breidenbach, 50 Upstate NY towns that collect most fines for speeding, traffic violations, New York Upstate, July 26, 2018, available at https://www.newyorkupstate.com/expo/news/erry-2018/07/ab2e7d572e1626/50-upstate-ny-towns-that-colle.html.

[2] New York State Unified Court System 2017 Annual Report (2018), available at http://ww2.nycourts.gov/sites/default/files/document/files/2018-09/17_UCS-Annual_Report.pdf (Note: This revenue includes fees for attorney registrations and criminal search histories. The report does not break down what percentage of the $607 million was charged to defendants or indigent defendants).

[3] See, e.g., P.R. Lockhart, Black people in NYC are 8 times more likely to be arrested for marijuana than whites, Vox, May 14, 2018, available at: https://www.vox.com/identities/2018/5/14/17353040/racial-disparity-marijuana-arrests-new-york-city-nypd.

[4] N.Y. Crim. Proc. Law § 420.10.

[5] N.Y. Penal Law § 80.00.

[6] N.Y. Penal Law § 80.05.

[7] Ibid.

[8] Ibid.

[9] N.Y.C. Admin. Code § 10-177.

[10] N.Y. Veh. & Traf. Law § 1800.

[11] Ibid.

[12] Erika Eicherlberger, The Literal Cost of Solitary Confinement, The New Republic, Sept. 15, 2015, available at: https://newrepublic.com/article/122822/prisons-use-solitary-confinement-empty-inmates-wallets.

[13] N.Y. Penal Law § 60.35.

[14] N.Y. Exec. Law § 257-c.

[15] N.Y. Correct. Law § 201 (9)(a).

[16] N.Y. Penal Law § 60.35 (1)(a)(v).

[17] N.Y. Penal Law § 60.35.

[18] Ibid.

[19] N.Y. Correct. Law § 189.

[20] N.Y. Veh. & Traf. Law § 503.

[21]New York State Corrections and Community Supervision, Community Supervision Fees (Mar. 9, 2017), available at http://www.doccs.ny.gov/Directives/9250.pdf. See also Center for Community Alternatives, Sentencing for Dollars: The Financial Consequences of a Criminal Conviction (Feb. 2007), available at http://www.communityalternatives.org/pdf/financial%20consequences.pdf.

[22] Ibid.

[23] N.Y. Correct. Law § 125.

[24] Criminal Court of the City of New York, Annual Report (2016), at 56, available at http://www.nycourts.gov/COURTS/nyc/criminal/2016-Annual-Report-Final.pdf.

[25] New York State Commission of Correction, The Worst Offenders, Report: The Most Problematic Local Correctional Facilities of New York State (Feb. 2018), available at http://www.scoc.ny.gov/pdfdocs/Problematic-Jails-Report-2-2018.pdf.

[26]  U.S. Commission on Civil Rights, Targeted Fines and Fees Against Communities of Color: Civil Rights & Constitutional Implications (Sept. 2017), available at https://www.usccr.gov/pubs/2017/Statutory_Enforcement_Report2017.pdf. see also Greg Ridgeway, Analysis of Racial Disparities in the New York Police Department’s Stop, Question, and Frisk Practices (Santa Monica, CA: RAND Corporation, 2007), available at https://www.rand.org/pubs/technical_reports/TR534.html.

In April 2017, New York State enacted statewide reforms intended to improve the right to counsel for people charged with a criminal offense, who cannot afford to hire an attorney.

Amendments to New York County Law § 722-e and the addition of Executive Law § 832 (4) enacted by New York State Governor Cuomo and supported by the NYS legislature encourages and enables each criminal defense provider of legally mandated representation to furnish high quality, effective representation for every client. These recent legislative reforms offer public defense providers across the state the opportunity to hire additional attorneys, investigators, social workers and support staff and develop other resources to further their efforts in improving the overall quality of mandated representation.

Persons eager to explore opportunities within the New York State public defense arena who seek a challenging work environment that promotes diversity, embraces change, and provides leadership opportunities are encouraged to participate in this Public Defenders Career Fair.

See here for more information.

 

*** FOR IMMEDIATE RELEASE *** SEPTEMBER 11, 2018 CONTACT Jared Chausow, Brooklyn Defender Services, jchausow@bds.org, (650) 814-0565 Redmond Haskins, The Legal Aid Society, 929-441-2384, rhaskins@legal-aid.org Anna Kim, The Bronx Defenders, 646-504-2977, annakim@bronxdefenders.org New York, N.Y — Attorneys from Brooklyn Defender Services, The Bronx Defenders, and Legal Aid Society – New York City’s public defender organizations providing free legal representation on immigration matters through the New York Immigrant Family Unity Project (NYIFUP) – submitted a joint letter to Hudson County Executive Tom DeGise urging him to postpone the vote on a resolution phasing out its contract with U.S. Immigration and Customs Enforcement (ICE). The letter detailed their concerns about passing the resolution, which would likely result in people being detained hundreds or thousands of miles away from their families and communities and eliminate their access to free legal counsel. Through the NYIFUP program, the three providers serve people who are detained and subject to deportation proceedings at the Varick Street immigration court as well as a small number of New York residents with hearings at the Elizabeth immigration court. These clients include the majority of people detained at Hudson County’s jail, as well as people detained in the jails in Bergen, Orange and Essex Counties. NYIFUP representation has dramatically increased the likelihood of detained people winning their cases from 4% to 48%. The letter detailing their concerns and opposition to the plan includes the following excerpts: “As supervising attorneys representing detained immigrants facing deportation through New York City’s pioneering New York Immigrant Family Unit Project (NYIFUP), we respectfully implore you to postpone the vote on a resolution phasing out the contract with Immigration and Customs Enforcement (ICE). Neither we nor the people we represent were consulted on this resolution and while there are local interests involved, the consequences of passing it would extend far beyond Hudson County.” … “To be clear, we strongly support the movement to abolish ICE and believe there is no place for the jailing of asylum-seekers, longtime community members, or anyone else based on birthplace in a just society. The civil and human rights violations perpetrated by ICE against immigrants and people of color are longstanding and well-documented. To us, abolishing ICE is about a fundamental transformation of our immigration system into one that truly respects human rights and the ideals of liberty and equality. That said, ending contracts for ICE detention in jails near large immigrant communities where attorneys are provided for free – while ICE continues to make arrests in these communities – will do far more harm than good and we question whether directly impacted people were engaged in this decision. Hudson County and other local governments have local control over jail contracts with ICE, but they do not have any control over what will happen to detained people if these contracts are terminated. That is up to ICE. People who would otherwise be detained near their families and communities would instead be moved, likely hundreds or thousands of miles away, and quite possibly to remote private prisons where neither attorneys nor vigilant community members and clergy would be able to advocate for their rights and safety. Those with open cases and scheduled hearings – people who will have suffered weeks or months of detention awaiting this opportunity to fight for their freedom and right to remain in their community – would be severed from their support networks and attorneys and their cases will be derailed.” … “Our country must fundamentally transform its immigration system to recognize the humanity of all people, including by repealing the laws that created our current mass immigration detention system. While we fight toward that end, we must proceed responsibly and do no harm – at least not without the leadership of directly impacted people making decisions for themselves.” Read the full letter here. *** The New York Family Immigrant Unity Project (NYIFUP) is the nation’s first public defender system for immigrants facing deportation—defined as those in removal proceedings before an immigration judge. Funded by the New York City Council since July 2014, the program provides a free attorney to almost all detained indigent immigrants facing deportation at Varick Street Immigration Court who are unrepresented at their first court appearances.

Contacts: Jared Chausow, jchausow@bds.org, (650) 814-0565

Anna Kim, annakim@bronxdefenders.org, (919) 259-8069

Joint Statement in Opposition to Phase-Out of Hudson County Jail Contract with ICE

Sept. 6, 2018 – (Brooklyn, NY) Today, Hudson County Executive Tom DeGise announced a plan to exit a contract with U.S. Immigration and Customs Enforcement (ICE) to provide immigration detention in the county jail. Brooklyn Defender Services and Bronx Defenders released the following statement in opposition to this plan:

“As attorneys representing detained immigrants facing deportation through New York City’s pioneering New York Immigrant Family Unit Project (NYIFUP), we strongly support the movement to abolish ICE and believe there is no place for the jailing of asylum-seekers, longtime community members,  or anyone else based on birthplace in a just society. The civil and human rights violations perpetrated by ICE against immigrants and people of color are longstanding and well-documented. That said, ending contracts for ICE detention in jails near large immigrant communities where attorneys are provided for free will do far more harm than good and we question whether directly impacted people were engaged in this decision. Hudson County and other local governments have local control over jail contracts with ICE, but they do not have any control over what will happen to detained people if these contracts are terminated. That’s up to ICE.

People who are currently detained near their families and communities would be moved, likely hundreds or thousands of miles away, and quite possibly to remote private prisons where neither attorneys nor vigilant community members and clergy would be able to advocate for their rights and safety.

Certainly, reallocating revenue from the contract with ICE toward better serving people caught in the web of immigration detention, as local advocates and elected officials have called for, is worthy, but phasing out the contract itself is the wrong move.

NYIFUP representation has increased the likelihood of detained people winning their cases by a factor of 12 – from 4% to 48%. In addition to saving people from deportation, family dissolution, and in many cases death in their country of origin, this program has shown that nearly half of the people arrested and detained by ICE have a legal claim to remain in their homes and communities here under the law. This only strengthens the argument to abolish ICE.

Our country must fundamentally transform its immigration system to recognize the humanity of all people, including by repealing the laws that created our current mass immigration detention system. Until that is achieved, we must proceed responsibly and do no harm.”

***

TESTIMONY OF:

 

Nyasa Hickey – Supervising Attorney, Immigration Practice

BROOKLYN DEFENDER SERVICES

 

Presented before

The New York City Council

Committees on Immigration and Youth Services

Oversight Hearing on Abolish ICE

Int. 1092-2018 & Resolution on Abolish ICE

 

September 6, 2018

 

Introduction

My name is Nyasa Hickey. I am a Supervising Attorney of the Immigration Practice at Brooklyn Defender Services (BDS). I thank the City Council for this opportunity to testify about the Abolish ICE movement and the many ways that Immigration and Customs Enforcement (ICE) actively harms New York City and our immigrant communities.

Brooklyn Defender Services (BDS) is a full-service public defender office in Brooklyn, representing nearly 35,000 low-income New Yorkers each year who are arrested, charged with abuse or neglect of their children or face deportation. Since 2009, BDS has counseled, advised or represented more than 10,000 immigrant clients. We are a Board of Immigration Appeals-recognized legal service provider.

BDS strongly supports the Abolish ICE movement. The civil and human rights violations perpetrated by ICE against immigrants and people of color are longstanding and well-documented.[1] But we believe that our immigration system requires a complete overhaul in order to end these abuses. Simply initiating a bureaucratic reorganization of ICE is not sufficient. We call on the City Council to join with us to demand a fundamental transformation of our immigration system to one that recognizes the humanity of all people and that upholds the values of equal justice and due process for all.

Dismantling of the current immigration system will require a different Congress and President committed to true reform. Until this transformation becomes a political reality, we urge the Council to proceed with caution in determining which temporary measures to support. In particular, we will focus our testimony below on the harm that closing down New York City-area detention centers would have for our clients and their families. We look to the Council for your support in this advocacy work.

The New York City Council has led the nation in efforts to protect and support immigrant communities. The first-in-the-nation public defender program for detained immigrants facing deportation, the New York Immigrant Family Unity Project (NYIFUP), is a model for legal services provision that is now being replicated in jurisdictions across the country.[2] NYIFUP representation has resulted in a 1,100% increase in the success rate for NYIFUP clients, as compared to New York City residents facing deportation prior to NYIFUP. Since the project’s inception in 2013, NYIFUP has reunified more than 750 people with their families and helped more than 400 New Yorkers gain or maintain work authorization by winning their immigration cases. The Vera Institute of Justice projects that these successful outcomes will produce tax revenue from this cohort of NYIFUP clients of $2.7 million each and every year, for years to come.[3] In addition, the City invests millions of dollars every year for additional immigration legal services, English language lessons, citizenship outreach and education, and other programming that support the success of immigrant New Yorkers.

And yet despite these significant investments from the City, immigrant New Yorkers face increased risk of targeting and apprehension by ICE. First, we lay out the history of ICE and modern immigration policy to give the Council context about the system that our clients currently face. We then lay out many of the problematic practices that we see in New York City on a daily basis. Next we describe ways that the Council can advocate for fundamental system change while minimizing harm to New Yorkers currently caught up in the immigration deportation system. Finally, we offer our support for the two measures currently before the Council today.

Background

In the wake of 9/11, the U.S. Department of Homeland Security was formed to oversee “immigration enforcement actions to prevent unlawful entry into the United States and to apprehend and repatriate aliens who have violated or failed to comply with U.S. immigration laws.”[4]Within DHS, Immigrations and Customs Enforcement (ICE) is responsible for immigration enforcement, detention, and removal.  While abuses by ICE have garnered national attention, our country has a long and troubled history of persecuting immigrants. In our support of Abolish ICE, we also urge the City Council to support comprehensive immigration reform which is necessary to create humane immigration policies.

Historically, immigration policies addressed the civil process of determining who was eligible to cross borders or reside in the United States.[5] The Reagan administration ushered in rhetoric of equating noncitizens with crime, relying on prejudice and stereotypes about immigrants present in this country from the United States’ earliest days.[6] As tough on crime policies of the 1980s led to prison crowding, noncitizens increasingly became a scapegoat; the Reagan administration promoted anti-immigrant rhetoric focused on falsehoods such as immigrants’ economic burden on the citizen taxpayers a result of their presence in prisons, schools, and hospitals.[7] The Reagan administration passed the Anti-Drug Abuse Act[8] and the Immigration Reform and Control Act[9], which expanded grounds for deporting noncitizens with drug conviction and created as system for deporting any noncitizens following prison sentences.[10] These laws created a narrative that centered immigrants in discussions of drug use and crime, though immigrants were actually arrested at lower rates than citizens—which still holds true today.[11] This conceptual shift in the collective view of immigrants as criminal paved the way for more restrictive immigration laws.

The Immigrant Justice Network and NYU School of Law report Dismantle, Don’t Expand: The 1996 Immigration Laws outlines how three major bills passed and signed into law by President Clinton laid out the framework for ICE as we know it today.[12] First, the Antiterrorism and Effective Death Penalty Act[13] (AEDPA) “expanded the criminal grounds for deportation, limited relief from removal, restricted judicial review, and expanded mandatory detention.”[14] Second, the Personal Responsibility and Work Opportunity Reconciliation Act[15] barred immigrants from federal public benefits and allowed state and local government to impose additional restrictions.[16] Finally, the Illegal Immigration Reform & Immigrant Responsibility Act[17] (IIRIRA) created sweeping changes to immigration law. IIRIRA expanded the grounds for mandatory detention and removal, limited access to discretionary relief from removal, restricted avenues for relief from deportation and detention, authorized cooperation between federal immigration local law enforcement, and created funding for additional. [18] Additionally, IIRIRA created income requirements for citizens trying to sponsor family members, created a provision to prevent poor immigrants who may become a “public charge,” and created multiyear bars from re-entry following deportation.[19] These bills disproportionately impacted low-income immigrants of color. Broken Windows policing, as operationalized by the NYPD starting in the early 1990s, almost exclusively targeted people of color, new immigrants and other socially and economically marginalized groups.[20]  For noncitizens, a single interaction with local law enforcement may trigger immigration detention and deportation.[21]

Following the passage of IIRIRA, the negative impact on immigrant families became clear. Income requirements to sponsor family members, mandatory bars on returning to the U.S. after deportation, and mandatory detention following deportation orders penalized dual-status families, long term residents and green card holders. Calls to reform this legislation (“Fix ‘96”) gained bipartisan support, including from the bill’s sponsor Rep. Lamar Smith.[22] The campaign centered the need to “amend IIRIRA’s provisions concerning retroactive deportations, constraints on judicial review, mandatory detention, the use of secret evidence, and expedited removals.”[23]

These efforts, however, were largely forgotten in the wake of 9/11. Following the terror attacks, the IIRIRA provisions which allowed for quick detention and deportation were again seen as keeping America safe. Widespread fear of crime and distrust of immigrants allowed Congress’s creation of DHS and ICE. Since September 11, 2001, we have seen the traumatic impact of enforcing IIRIRA. In particular, over the last few months, the public has become aware of the lived reality of ICE’s impact on immigrant individuals, families, communities and human rights principles.  ICE is tearing apart families, deporting parents and spouses, and destabilizing low-income communities of color. In addition to calls to Abolish ICE, we encourage the City Council to work to create a humane immigration system that restores due process rights, allows judicial discretion, and treats immigrants with dignity.

 ICE’s Ramped Up Enforcement in New York City Immigrant Communities

The impact of enforcement policies at the federal level are felt every day by our immigrant clients, their families and New York City communities. The mass separation of parents and children at the border this spring and summer were one of the most publically visible and shocking example of the agency’s actions, but their cruel and illegal enforcement tactics harm people in New York City, too. We have written about all of these practices at length in previous testimony[24], but list many of ICE’s most pernicious practices here:

• Arrests
  • Increased ICE arrests in and around city courthouses, limiting access to the court system[25]
  • Increased home and workplace raids in the community[26]
  • Reliance on ruses and other nefarious means to lure targets into ICE custody[27]
  • Effectuating arrests or entering private homes without judicial warrants[28]
  • Racial profiling, including relying on unsubstantiated gang allegations[29]
  • Detaining people at Order of Supervision (OSUP) check-ins[30]
  • Re-arresting people who have won relief in immigration court but have not yet received their visas or green cards[31]

• Court Appearances
  • Abolishing in-person appearances at Varick Street Courthouse and requiring detained people to appear in court via Video Teleconferencing (VTC)[32]
  • Failing to produce detained people for state court proceedings where writs are issued by the courts or prosecutors to ensure their appearance

• Detention
  • Sub-standard detention conditions for detained immigrants
    • Insufficient access to medical care and mental health treatment[33]
    • Insufficient or spoiled food[34]
    • Damaged and insufficient clothing and hygiene products[35]
  • Lack of access to programming and other supports
  • Lack of sufficient language services to facilitate communication with non-English-speaking detained people

Other actors in the immigration deportation system also frequently violate our clients’ rights, and our concerns about their actions are listed in previous testimony before this committee. The combined effect of these injustices are that our clients are increasingly likely to be targeted for enforcement or swept up in mass raids, held for months of years without bond in horrible  detention conditions. All of this occurs on top of harsh and unfair laws like IIRIRA that disproportionately punish low-income people of color.

Urge Caution

Because of all of the harmful practices, policies and laws that we listed above, we urge the Council to remain committed, first and foremost, to advocating for reform that will not harm impacted communities. Robust funding for immigration legal services like NYIFUP are critical to keeping families together and we urge you to maintain and increase your financial support.

Brooklyn Defender Services has very serious concerns about the impacts of closing immigration detention facilities in Hudson, Essex and Bergen Counties in New Jersey on the people we represent. Local news outlets have recently reported on efforts by New Jersey residents to urge their local legislators to end detention contracts with ICE.[36] Ending mass immigration detention – or any immigration detention at all – is paramount, but simply closing these facilities, where detained people have access to free representation through NYIFUP will result in grave consequences for detained immigrants and their families.

If the New Jersey detention facilities end their contracts with ICE, New Yorkers arrested by ICE will be shipped off to distant facilities, perhaps several states away to rural areas. Outside of the New York City area and Varick Street Immigration Court, they will not have access to their families or a NYIFUP attorney. Families play a critical role in supporting detained people during the pendency of their case. The presence of a detained person’s spouse, children and close family friends not only build up their loved one’s morale, they also are frequently critical witness or are able to collect evidence essential to prove a detained person’s legal claim to remain in the U.S. with their family.

In New York City, NYIFUP representation, in which BDS is one of the three providers, has increased the likelihood of detained people winning their cases by a factor of 12 – from 4% to 48%. In addition to saving people from deportation, family dissolution, and worse, this program has shown that nearly half of the people arrested and detained by ICE have a legal claim to remain in their homes and communities here under the law.

NYIFUP achieves these incredible success rates because NYIFUP provides detained people with experienced and highly qualified deportation attorneys in immigration court. We are also funded by the Council to provide investigators, trained forensic social workers, expert witnesses, re-entry services, connections to rehabilitative programs and services, legal assistance from any of our other practice areas (including criminal defense, family defense and civil legal services) and federal court litigation expertise. These wraparound and inter-disciplinary advocacy and support will be lost to all detained people who are transferred far from New York City, effectively undercutting the Council’s efforts to provide the right to counsel and due process to its residents.

Our concerns are not hypothetical: ICE detainees were transferred en masse from the San Francisco Bay Area after Contra Costa County ended its contract with ICE.[37] An ICE spokesperson spoke unequivocally that advocates should have anticipated this result:

“When we were notified of the decision, ICE made it abundantly clear in July that it would have to now rely on its national system of detention bed space to house detainees. When ICE is not allowed to work with local jurisdictions to house detainees closer to their families, friends and attorneys, farther facilities must be utilized.”[38]

We recommend that the Council work with your counterparts in New Jersey (the Hudson, Bergen and Essex County Freeholders) and urge them to continue their contracts with ICE while improving conditions for detainees, including improving access to medical care, visitation and other measures. We also ask that you encourage Freeholders to require that jails identify people in immigration detention who have upcoming court dates so that NYIFUP can go to the facilities prior to the first court date to do screenings and intake, a process that has been fundamentally undermined since ICE has decided not to bring detained people to their hearings at Varick Street Immigration Courthouse. These and other informed advocacy efforts in collaboration with service providers such as NYIFUP could go a long way towards supporting immigrant New Yorkers and ensuring they are able to take advantage of NYIFUP representation.

Intro 1092 – Prohibiting NYC from Contracting with Entities Engaged in Immigration Enforcement

BDS strongly supports Int. 1092, a Local Law to amend the Administrative Code of the City of New York, in relation to prohibiting New York City from contracting with entities engaged in immigration enforcement. Documented recently reported that the city currently has two contracts with ICE totaling close to $500,000 to allow ICE agents access to the NYPD firing range and parking for the ICE New York field office.[39] The two contracts in particular only serve to facilitate ICE arrests in immigrant communities across the city. For all of the reasons articulated earlier in our testimony, BDS calls on New York City to immediately end all contracts with ICE.

Resolution on Federal Bill H.R. 6361 – Establishing a Humane Immigration Enforcement System Act

New York City Council Resolution 2018-2722 (preconsidered) calls on the federal government to pass the Establishing a Humane Immigration Enforcement System Act (H.R. 6361). The bill would establish a Commission tasked with establishing a humane immigration enforcement system, terminate Immigration and Customs Enforcement, and officially document the long history of abuses perpetrated by ICE.

While BDS supports many of the goals of HR 6361, we believe that it falls short in rectifying the harm caused by ICE because it would not repeal IIRIRA, significantly reduce funding for immigration enforcement, or increase due process protections for immigrants. We urge the Council to go a step further and urge Congress to make these changes, as well. Simply abolishing ICE, as we noted above, will not end the harm perpetrated by the federal government against our immigrant communities.

• Conclusion

Thank you for inviting me to testify and for considering my remarks today.

Please reach out to Andrea Nieves, Senior Policy Attorney at anieves@bds.org or 718-254-0700 ext. 387 if you have any additional questions.

 

[1] See, e.g., American Civil Liberties Union, ICE and Border Patrol Abuses, available at https://www.aclu.org/issues/immigrants-rights/ice-and-border-patrol-abuses.

[2] Learn more at Vera Institute of Justice, SAFE Cities Network, https://www.vera.org/projects/safe-cities-network.

[3] Vera Institute of Justice, Report Summary: Evaluation of the New York Immigrant Family Unity Project: Assessing the Impact of Legal Representation on Family and Community Unity (Nov. 2017), available at https://www.vera.org/publications/new-york-immigrant-family-unity-project-evaluation.

[4] Bryan Baker, Immigration Enforcement Actions: 2016, Department of Homeland Security Annual Report (Dec. 2017), available at https://www.dhs.gov/immigration-statistics/enforcement-actions

[5] D’Vera Cohn, How US Immigration Laws and Rules Have Changed Through History, Pew Research Center RSS, (Sep. 2015), available at http://www.pewresearch.org/fact-tank/2015/09/30/how-u-s-immigration-laws-and-rules-have-changed-through-history/

[6] See, e.g., Kenneth C. Davis, Anti-Immigrant Rage Is Older than the Nation Itself, NPR, May 25, 2010, available at https://www.npr.org/templates/story/story.php?storyId=126565611.

[7] Donald Kerwin, From IIRIRA to Trump: Connecting the Dots to the Current US Immigration Policy Crisis, Journal on Migration and Human Security, (2018).

[8] Pub. L. No. 99-570, 100 Stat. 3207 (1986.)

[9] Pub. L. No. 99-603, 100 Stat. 3349 (1986).

[10] Patricia Macías-Rojas, Immigration and the War on Crime: Law and order politics and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. J. on Migration & Hum. Sec., 6, 1, (2018).

[11] Robert Adelman, et al., Urban Crime Rates and the Changing Face of Immigration: Evidence Across Four Decades, Journal of Ethnicity In Criminal Justice. 15 (2016).

[12] Bobby Hunter & Victoria Lee, Dismantle, Don’t Expand: The 1996 Immigration Law, Immigrant Justice Network and NYU School of Law Immigrant Rights Clinic, (2017). available online at https://www.immigrantdefenseproject.org/wp-content/uploads/1996Laws_FINAL_Report_5.10.17.pdf

[13] Pub. L. No. 104-132, 100 Stat. 1214 (1996).

[14] Cohn, How US Immigration Laws and Rules Have Changed Through History.

[15] Pub. L. No. 104-193, 110 Stat. 2105 (1996).

[16] Hunter & Lee, Dismantle, Don’t Expand.

[17] Pub. L. No. 104-208, 110 Stat. 3009-546 (1995)

[18] Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 Am. U. L Rev. 367 (2006).

[19] Kerwin, From IIRIRA to Trump.

[20] Statement of Shawn Blumberg, Broken Windows Policing and Protecting Immigrant New Yorkers, Feb. 21, 2017 available online at http://bds.org/wp-content/uploads/2017.2.21-Statement-by-Brooklyn-Defender-Services-on-Broken-Windows-Policing.pdf

[21] Hunter & Lee, Dismantle, Don’t Expand.

[22] Macías-Rojas, Immigration and the War on Crime.

[23] Id.

[24] Please see our previous testimonies before the City Council, available on the Brooklyn Defender Services website at www.bds.org/#policy.

[25] See, e.g., Immigrant Defense Project, Press Release: IDP Unveils New Statistics & Trends Detailing Statewide ICE Courthouse Arrests in 2017, available at https://www.immigrantdefenseproject.org/wp-content/uploads/ICE-Courthouse-Arrests-Stats-Trends-2017-Press-Release-FINAL.pdf.

[26] Immigrant Defense Project, ICEwatch: ICE Raids Tactics Map (July 2018), available at https://www.immigrantdefenseproject.org/wp-content/uploads/ICEwatch-Trends-Report.pdf.

[27] Id.

[28] Id.

[29] Kavitha Surana, How Racial Profiling Foes Unchecked in Immigration Enforcement, ProPublica, June 8, 2018, available at https://www.propublica.org/article/racial-profiling-ice-immigration-enforcement-pennsylvania.

[30] Saenz, March 15, 2017.

[31] Testimony of Andrea Saenz, Presented before the New York City Council Committee on Immigration Oversight Hearing on the Impact of New Immigration Enforcement Tactics on Access to Justice and Services, March 15, 2017.

[32] Testimony of Nyasa Hickey, Presented before the New York City Council Oversight Hearing on the Impacts of the Trump Administration Family Separation Policy on New York, July 12, 2018;

[33] New York Lawyers for the Public Interest, Detained and Denied: Healthcare Access in Immigration Detention (2017), available at http://www.nylpi.org/wp-content/uploads/2017/02/HJ-Health-in-Immigration-Detention-Report_2017.pdf.

[34] Human Rights First, Ailing Justice: New Jersey, Inadequate Healthcare, Indifference, and Indefinite Confinement in Immigration Detention (Feb. 2018), available at https://www.humanrightsfirst.org/sites/default/files/Ailing-Justice-NJ.pdf.

[35] Id.

[36] Matt Katz, Religious Leaders Sue to End Hudson County’s ICE Contract, WNYC News, August 26, 2018, available at https://www.wnyc.org/story/religious-leaders-sue-end-detention-ice-immigrants-hudson-county-jail/.

[37] Tatiana Sanchez, Transfers of Contra Costa ICE Detainees Spark New Concerns, The Mercury News, Aug. 24, 2018, available at https://www.mercurynews.com/2018/08/24/transfers-of-contra-costa-ice-detainees-spark-new-concerns/.

[38] Id.

[39] Felipe De La Hoz, Exclusive: City Council Bill Calls for Ban on All Contracts With ICE, Documented, Aug. 28, 2018, available at https://documentedny.com/2018/08/28/exclusive-city-council-bill-calls-for-ban-on-all-contracts-with-ice/.

TESTIMONY OF:

Kelsey De Avila, LMSW – Jail Services Social Worker

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committees on Criminal Justice and Women

Oversight Hearing Examining Sexual Abuse and Harassment in City Jails 

September 6, 2018

My name is Kelsey De Avila, and I am a Jail Services Social Worker at Brooklyn Defender Services.  Thank you for this opportunity to address the Council on the sexual abuse and sexual harassment that too many of our clients suffer in our city jails. BDS provides comprehensive public defense services to more than 30,000 people each year, thousands of whom are detained or incarcerated in the city jail system either while fighting their cases or upon conviction of a Misdemeanor and a sentence of a year or less. BDS’ Jail Services Division provides supportive services and direct advocacy on behalf of our clients in Department of Correction (DOC) custody. This testimony is composed primarily of the accounts of our clients whose voices are underrepresented at today’s hearing.

There should no longer be any question that rape and sexual violence are real and serious problems in our jails that demand attention. Whether a person is detained pre-trial and presumed innocent, as is the majority of the population in city jails, or enduring incarceration as a punishment or perhaps awaiting transfer to upstate prisons, they are New Yorkers – sons, daughters, mothers, fathers, cousins, friends, and neighbors. Yet they are often called “packages” or worse by DOC staff, and treated accordingly. We continue to urge the City to end the inhumane treatment of incarcerated New Yorkers and close the jails on Rikers Island. If the City cannot keep people in its custody safe, policymakers in all levels of government should question whether such custody should even be permitted.

The ‘Deep-Seated Culture of Violence’ at DOC Includes Sexual Violence

On August 4, 2014, the U.S. Attorney’s Office for the Southern District of New York (USAO SDNY) issued a report to DOC regarding its Civil Rights of Institutionalized Persons Act (CRIPA) investigation of the jails on Rikers Island. The investigation infamously found a “deep-seated culture of violence [that] is pervasive throughout the adolescent facilities.” However, directly impacted people, attorneys and social workers who serve them, and indeed the Department itself all know that this culture extends throughout the City’s jail system, and includes sexual violence. (In a footnote, the report noted that the investigation did not focus on sexual assault, but raised concerns that DOC was underreporting it.)[1] A former federal jail warden and then-member of the Board of Correction (BOC) once said in a public meeting, in regards to staff sexual assault at Rikers Island, “As long as we are going to have prisons we are going to have sexual abuse in prisons.”[2] A Department of Justice survey found that, on any given day, 50 of the 800 people held at the Rose M. Singer Center (Rosie’s) were being sexually victimized the staff, making it one of the worst jails for such abuse in the country.[3] (The daily population at Rosie’s is now closer to 530.) Nevertheless, in each and every news article about an allegation of sexual misconduct by DOC staff, the agency’s response invariably includes its supposed “zero tolerance” policy. Whatever the policy, in practice, the DOC fails to protect people and hold officers accountable.

According to a June 2018 report by the agency, allegations of sexual abuse and sexual harassment increased by nearly 40% from 2016 to 2017 (823 to 1151), which the agency attributes to improved reporting mechanisms and other reforms implemented as part of an effort to comply with the federal Prison Rape Elimination Act (PREA). We do not accept this explanation as fact, given the enormous increase in reports amidst declining overall admissions and average daily population. Even so, staff sexual misconduct and harassment comprise 70% of these allegations. Allegations of staff sexual misconduct increased approximately 16% (322 to 374) and allegations of staff sexual harassment increased approximately 86% (232 to 432) during this period. At the time of the report, of the 823 allegations in 2016, the agency had only found three incidents to be substantiated. The vast majority of investigations (739) remained pending. In 2017, though the number of allegations increased, only one incident had thus far been deemed substantiated.  1112 investigations remained pending at the time of the report.[4]

This should be disturbing to the Council: Over a thousand cases are still pending, and DOC staff are allowed to remain employed despite pending allegations, and no action will be taken against them until the case is officially closed. Notably, our detained clients are subject to extremely punitive treatment and conditions – and exposed to this epidemic of sexual violence – while they fight criminal allegations against them.

Mr. C’s BDS attorney referred him to me after learning an officer had denied him food.  When I met with Mr. C, he reported that the officer denying him food was the same officer who, during a separate incarceration a couple of years ago, watched and encouraged the brutal rape of Mr. C by three other incarcerated men inside the bathroom of his dorm. Mr. C has since undergone surgery to repair the tissue damage done to him that night and has made multiple attempts at suicide by swallowing razors. Two years later, Mr. C was in the custody of the same officer. The officer remembered Mr. C and shared with other residents of the unit that Mr. C was raped repeatedly and would only address him as ‘pussy’ and ‘faggot’. Other staff regularly witnessed these comments but did not intervene. We reported the abuse to DOC and requested Mr. C’s immediate transfer to another unit, and were able to secure his release within a couple days. This officer continued to work for DOC following the incident.

DOC’s Failure to Comply with Minimum Standards

In 2016, pushed by survivors of Rikers Island, other activists, public defenders, and Office of the Public Advocate, the BOC adopted new rules to “detect, prevent, and respond to sexual abuse and sexual harassment” in City jails. One of the new rules, for which we and others fought, was a requirement that DOC install security cameras on in its buses, where people in custody are particularly vulnerable, as part of a one-year pilot program. The Department had roughly two years to meet its obligations, including providing a written report on the efficacy of the pilot by September 1, 2018. (The pilot itself was to be instituted by July 31, 2017.)[5] As of this writing, DOC is in violation of this rule and recently requested a variance to allow for an extension of the deadline while it works to install cameras in one single bus.[6] The Council should note that BOC’s rule referred to the plural form of “vehicles” – not one bus.

Another BOC rule requires DOC to complete all investigations of sexual abuse and sexual harassment allegations no later than 90 days from the Referral Date, absent extenuating circumstances outside of the Department’s control.[7] Although this rule became effective on January 2, 2018, as discussed above, the vast majority of investigations stemming from 2016 and 2017 remain pending. The lack of accountability at DOC, therefore, is not limited to a few bad actors, but rather is endemic to the agency.

Earlier on the day that Ms. A was raped, she had appeared in court with her lawyer.  After her appearance, she requested to leave on the 3 pm bus back to Rikers. While she was in transit, Ms. A was raped by a male officer at the back of the bus in a parking lot on Rikers Island, all while the driver of that bus sat and watched.  When she reported the incident, the bruises on her wrists and thighs were clearly visible. The two officers on the bus held Ms. A against her will and tortured her without anyone noticing or questioning the missing bus, the missing officers, the missing woman or why it took more than 10 hours for Ms. A to travel from court to her housing unit.

When she returned to her housing unit, a female DOC officer noticed that Ms. A was not acting herself and confronted Ms. A about her behavior. Ms. A felt safe with this female DOC officer and recounted the rape hoping for a safe way to report. In response, the female DOC officer told Ms. A that it would be safer if Ms. A reported it to her attorney, rather than the female DOC officer making a report. Ms. A took this to mean that the officer, herself, was afraid to report. Our client felt extremely vulnerable and alone during this time. Even the female DOC officer, an employee of the Department, seemed aware of the current culture of violence within DOC and unwilling or unable to fully protect the people in her custody.

We reported the rape to DOC and DOI and requested the latter, as an independent entity, investigate. We also reported it to the Bronx District Attorney’s office. For Ms. A’s safety we requested her transfer to another facility. There, she was placed in solitary confinement after spitting on an officer who was antagonizing her. To the best of our knowledge, the Bronx District Attorney’s office declined to investigate, DOI punted to DOC, and DOC’s investigation is ongoing while the officers involved continue to work for the Department.        

DOC’s Failure to Properly Investigate Allegations of Sexual Harassment and Abuse

As part of its internal reform process to comply with PREA, DOC increased the options for filing complaints, and increased staffing for the Investigations Division. Nonetheless, we have not seen a commensurate increase in protections for people in custody or accountability for staff. DOC often fails even to take interim measures after allegations are reported. For example, one of the quickest ways to help protect people from harm, or continued harm, in jail settings is to transfer them to different units or facilities. This approach does not meaningfully address the root causes of jail violence, but it is an easily accessible tool for intervention in the moment. We often find that DOC only transfers people threatened with or victimized by sexual violence when we advocate on their behalf. Mr. W, a BDS client, was an exception, but only because he took extreme measures to advocate for himself:

Mr. W was raped by another incarcerated man on his housing unit. Mr. W took proactive steps and reported the rape to 311 and his housing officer. Despite his own self-advocacy, neither he nor the other man were moved. Our client continued to report the sexual assault to DOC officers and even a DOC captain, yet still was not moved. Mr. W was raped again in the same housing unit by the same man a week later. Investigators finally interviewed Mr. W, but despite their interaction, Mr. W was not separated from the man. Mr. W. was raped again. More than two weeks later, our client spit on a DOC officer and only then was he moved to another, more restrictive housing unit.  He knew that by committing an “assault” on DOC staff, he would finally be moved. It was an act of desperation after being repeatedly failed by those in power.

Regardless of the complaint mechanism they use, our clients who report sexual harassment or abuse are visited by members of DOC’s Investigations Division, who come in plainclothes and wearing badges. Everybody inside—incarcerated people and staff alike—knows them, making people who report extremely vulnerable to retaliation. DOC regularly fails to protect them, surely dissuading others from making reports.

Sexual Abuse, Cavity Searches and Broader Corporal Control

Among the many serious and life-altering harms of incarceration in New York City is the routine sexual degradation involved in contraband searches. Often, the searches, themselves, are deliberately punitive, used by staff not as a response to a reasonable suspicion of the presence of contraband but rather to assert authority and control or to “send a message.” Incarcerated people are regularly subject to cavity searches, which are susceptible to all manner of abuse.

Mr. L reported that he was sexually abused during a routine housing search. DOC officers entered his cell, yelling, only to rough him up before he was even fully awake. One officer then held Mr. L’s head down with one hand while using the other hand to sexually abuse him. Fortunately, our client felt safe enough after the incident to call 311 to report the incident. Mr. L had difficulty defecating after the abuse and reported that he was experiencing extreme pain and bleeding. Months after the abuse, our client still reported discomfort, continues to have difficulty sleeping and trusting others around him due to the trauma of this incident. 

The Council should recognize that the epidemic of sexual misconduct exists on a continuum of corporal control that deprives and dehumanizes incarcerated people. The power dynamics that make any and all sexual conduct between staff and incarcerated people coercive under the law play out in countless other ways, as well.

During a tour of the Rose M. Singer Center on Rikers Island, Ms. M shared her difficulty in getting extra toilet paper and feminine hygiene products from DOC staff.  She shared how she would have to beg officers for assistance, only to be treated with disrespect that made her feel less than fully human and ashamed. Ultimately, the jail controls the cleanliness, health, and feelings of self-worth for all incarcerated people.

Victimization of People with Intellectual and Developmental Disabilities

It is important for this conversation to include people with intellectual and developmental disabilities. This population is at particular risk for sexual victimization, and particular attention should be paid to their needs, even beyond the intake risk-assessment. We appreciate the work Correctional Health Services has done to better screen individuals who come into the custody of the Department and augment services for all victims of jail-based sexual trauma, but we know that too many incidents go undetected only increasing these clients’ risk for abuse.

Mr. D is a young man with moderate mental retardation as well as mental health issues.  During his incarceration, he was frequently the target of extortion and harassment.  Mr. D had trouble following the rules and was disliked by many correction officers. As a result, he never felt comfortable asking for their help, even in the most extreme of circumstances.  Mr. D learned to tolerate the abuse he suffered while incarcerated until he finally told us that what he described as “horseplay” had gone too far – he was being forced to endure sexual abuse by another person in his dorm – and was being ignored or undetected by staff. When we became involved, we were able to secure Mr. D’s transfer to another unit, and eventually out of jail.  

Conflicts of Interest in DOC Investigating Itself

Executive Order 16 states, “upon receipt of any information concerning corrupt or other criminal activity or conflict of interest related to his or her agency, the Inspector General of such agency shall report directly and without undue delay such information to the Department of Investigation (DOI), and shall proceed in accordance with the Commissioner’s directions.”[8]

Staff sex abuse is criminal behavior that should always be referred to and investigated by DOI. Currently, DOC is permitted to conduct investigations of sex abuse by its own staff members, as reported by the agency at City Council hearings and Board of Correction meetings.  In our experience, reports by our clients regarding sexual abuse by a DOC staff member are referred to both agencies, but DOI generally allows DOC’s Investigation Division to conduct the investigation. This is a blatant conflict of interest and may contribute to the shockingly small number of cases referred for criminal prosecution by DOC.

The Charter of the City of New York (the City Charter) makes clear, “The jurisdiction of the commissioner [of the Department of Investigation] shall extend to any agency, officer, or employee of the city.”[9]  DOI thereby has jurisdiction to conduct investigations related to allegations of sex abuse by New York City Corrections Officers, which would resolve the abovementioned conflict of interest.  Furthermore, the City Charter requires that “upon completion of the investigation, [the Commissioner of DOI] shall also forward a copy of his [or her] written report or statement of findings to the appropriate prosecuting attorney.”[10]  Currently, there is no written policy that states what constitutes an appropriate case for DOI to defer investigations to DOC’s Investigation Division. The Council should push the agency to establish clear boundaries that would allow appropriate and thorough investigations without bias.

 

Sexual Harassment and Abuse of Visitors

Earlier this year, the New York City Jails Action Coalition (JAC) published a report, ‘It Makes Me Want to Cry’: Visiting Rikers Island, documenting the horrific experiences families, friends, and others face when visiting Rikers Island to support a loved one. The report, which is based on interviews with more than a hundred visitors, makes clear that the epidemic of sexual misconduct extends to the staff who screen visitors. The acts described in the report include being told to “show [their] underwear not only in front of officers but in front of other visitors; forced to strip down to their underwear, [told to] show COs their genitals, [forced to] suffer through inappropriate touching of their breasts and genitals, and [forced to] undergo cavity searches.”[11]

In an NBC I-Team report, Stephanie Sanchez reported that she was ordered into a bathroom in the Brooklyn House of Detention and threatened with arrest if she did not comply with an officer’s order. “By the time she was finished touching the top, like my breasts weren’t even in my bra. My bra was all the way up to my neck,’ Sanchez said. ‘She (the officer), went in, she went inside, she moved around, touched my private area. And I just had to stand there. I was in shock,” she said.

Shauntay Mayfield was also threatened that if she did not consent to the search, officers would contact ACS. “They told me, Oh, ACS is going to get involved. I know you have kids. You want to go home to them tonight?” she recounted.

BDS stands with JAC and their recommendations in order to hold the Department accountable and keep visitors safe from sexual abuse by DOC staff. As an initial step, the City Council’s Committee on Oversight and Investigations should launch an independent and transparent investigation into the allegations of sexual abuse and unlawful strip searches.

As stated in the NYC JAC report, “visiting is a crucial piece to improving reentry and decreasing recidivism, improving jail safety and the mental health of incarcerated people, and helping families who deal with the collateral consequences of incarceration to maintain ties with their loved ones.” Yet, “many visitors report that COs’ behavior as a major concern and hindrance during visits” and fear and “risk of sexual abuse during unlawful strip searches” is a major barrier to visiting. Forcing people to choose between risking exposing themselves to possible sexual abuse or not visiting a loved one is disgraceful and the City should no longer turn a blind eye to the reality of the torture we are putting the families and loved ones of incarcerated people through.

Conclusion

If the people exposed to the soaring rates of sexual harassment and abuse in City jails were treated that way by any other government agency Councilmembers and other policymakers would have long ago called for the resignation of the Commissioner as well as fundamental structural reforms, if not elimination of the agency. Abuse complaints are rising and the City has no plan to improve accountability for staff. Even with the highly-publicized incidents of sexual abuse of visitors, DOC has reported no disciplinary actions against staff. Imagine what is happening behind the gate. Hundreds of complaints languish for years without any results or immediate changes to protect victims. DOC officers, who hold the profound responsibility for the care and custody of incarcerated people and yet use their position to abuse, are still working in extremely powerful positions for the Department. The policies in place are important, but they mean very little when DOC does not enforce them. No matter what side of the gate they are on, everyone deserves to be safe from sexual harassment and abuse.  The City must finally address the underlying failures of the Department of Correction or remove people from its custody.

Thank you for your time and consideration of my comments. If you have any questions, please feel free to reach out to Jared Chausow, our Senior Policy Specialist, at 718-254-0700 ext. 382 or jchausow@bds.org.

[1] Jocelyn Samules et al., RE: CRIPA Investigation of the New York City Department of Correction Jails on Rikers Island (USAO SDNY 2014), https://www.justice.gov/sites/default/files/usao-sdny/legacy/2015/03/25/SDNY%20Rikers%20Report.pdf.

[2] Nick Malinowski, NYC Official Says Rape Is Inevitable at Rikers Island: If True, We Cannot Send Anyone There, Huffington Post, Dec. 6, 2017 at https://www.huffingtonpost.com/nick-malinowski/nyc-official-says-rape-is_b_10600320.html.

[3] John H. Tucker, Rape at Rosie’s, New York Mag., http://nymag.com/daily/intelligencer/2018/06/rape-at-rikers.html.

[4] NYC Dep’t of Corr., NYC Board of Correction Sexual Abuse and Sexual Harassment Minimum Standards 5-40 Assessment Report (2018), https://www1.nyc.gov/assets/doc/downloads/pdf/Annual-Sexual-Abuse-and-Sexual-Harassment-Assessment-Report.pdf.

[5] NYC Bd. of Corr., Notice of Adoption of Rules (2016), https://www1.nyc.gov/assets/boc/downloads/pdf/Jail-Regulations/Rulemaking/2016-PREA/PREA%20Rules%20-%20FINAL%20FOR%20POSTING%2011.10.16%20w%20certification.pdf.

[6] NYC Dep’t of Corr., Letter to NYC BOC re: Minimum Standards §5-04(g) “Supervision and Monitoring” – Transport Vehicle Camera Pilot Program and Written Report (2018), https://www1.nyc.gov/assets/boc/downloads/pdf/Meetings/2018/September-14-2018/NYC%20Department%20of%20Correction-BOC%20Sexual%20Abuse%20and%20Sexual%20Harassment%20Minimum%20Standards%20-%205-04%20-%20Transport%20Vehicle%20Camera%20Pilot%20and%20Report.pdf.

[7] NYC Bd. of Corr., Notice of Adoption of Rules (2016), https://www1.nyc.gov/assets/boc/downloads/pdf/Jail-Regulations/Rulemaking/2016-PREA/PREA%20Rules%20-%20FINAL%20FOR%20POSTING%2011.10.16%20w%20certification.pdf.

[8] NYC Executive Order 16 Section 4(e)

[9] Charter of the City of New York, Chapter 34 § 803(d)

[10] Id. § 803(c)

[11] NYC Jails Action Coal., ‘It Makes Me Want to Cry’: Visiting Rikers Island (2018), http://nycjac.org/wp-content/uploads/2018/01/VISITING-RIKERS-ISLAND-JAILS-ACTION-COALITION-1.9.18.pdf.

August 28, 2018

Contact: Daniel Ball – (347) 592-2579 – dball@bds.org

*** FOR IMMEDIATE RELEASE ***

BROOKLYN DEFENDER SERVICES STANDS IN SOLIDARITY

WITH THE 2018 NATIONAL PRISON STRIKE

(Brooklyn, NY) – Today, Lisa Schreibersdorf, Executive Director and Founder of Brooklyn Defender Services, issued the following statement:

“Brooklyn Defender Services stands in solidarity with the people incarcerated in federal and state prisons and immigration detention centers who, last Tuesday, began a 19-day nationwide strike demanding more humane living conditions, an end to prison slavery, sentencing and litigation reform, an end to racial disparities in sentencing and parole decisions, restoration of Pell grants, full voting rights, access to rehabilitation, and more.  The people we represent suffer unspeakable horrors in prisons, jails, and immigration detention centers that strip them of their dignity, from physical, sexual, and verbal abuse to prolonged solitary confinement, unsafe and unsanitary food, and a lack of access to decent health care. We strongly support their demands and we urge all levels of government to make them a reality.”

 

Background

People incarcerated across the United States are peacefully protesting from August 21 to September 9, the latter date being the anniversary of the Attica uprising. Jailhouse Lawyers Speak, Incarcerated Workers Organizing Committee, other incarcerated organizers and allies have issued a list of ten demands and four non-violent actions for the 19-day strike. Brooklyn Defender Services has received no information from current or former clients of actions taking place in New York State facilities.

About Brooklyn Defender Services

Brooklyn Defender Services (BDS) is a non-profit public defense office in Brooklyn, New York. BDS provides multi-disciplinary and client-centered criminal defense, family defense, immigration and other civil legal services, and social work support to over 30,000 indigent Brooklyn residents every year.

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Nigeria’s The Nation featured BDS Immigration Supervising Attorney Nyasa Hickey and Immigration Senior Staff Attorney Hannah McCrea, both currently representing BDS in Nigeria as part of an international legal exchange funded by the Mandela Washington Fellowship for Young African Leaders program. Nyasa and Hannah have been presenting at a national conference, attending court proceedings and researching the provision of pro bono and indigent legal services across Nigeria.

Photo: Idris Solomon For Buzzfeed News

Buzzfeed shares the story of BDS NYIFUP client Levy Jaen who won release from detention earlier this year when the Second Circuit Court of Appeals acknowledged his citizenship by birthright in a landmark decision. Story features Immigration Supervising Attorney Andrea Saenz.