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News

BDS & OTHERS PUT FORTH NEW BILL TO PRESERVE FAMILY RELATIONSHIPS IN THE NYS SENATE & ASSEMBLY

Brooklyn Defender Services has joined with legal service providers and non-profit organizations that work with child welfare-involved children and families from across New York State to preserve family connections after the termination of parental rights. This statewide coalition is calling itself the Preserving Family Bonds Coalition.

Research shows that children benefit from strong, healthy family bonds. Under current New York law, family court judges are not allowed to protect the rights of children to contact or visit with their biological parents and siblings after parental rights have been terminated, even when the court deems it in the best interest of the children. The Preserving Family Bonds Act (S.5790 – Savino/A.8020 – Joyner) provides that, if it is truly in the best interest of the children to stay connected with their families, then judges may allow them to do so, in a manner that is safe and appropriate.

View the Coalition’s Memo in Support of S.5790/A.8020 here.

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ANDREA SAENZ SUBMITS WRITTEN TESTIMONY TO THE NEW YORK CITY COUNCIL EXECUTIVE BUDGET HEARING ABOUT THE NEW YORK IMMIGRANT FAMILY UNITY PROJECT (NYIFUP)

TESTIMONY OF:

Andrea Sáenz – Supervising Attorney, Immigration Practice
BROOKLYN DEFENDER SERVICES

Presented before
The New York City Council
Executive Budget Hearing
May 25, 2017

I. Introduction

My name is Andrea Sáenz. I am the supervising attorney of the New York Immigrant Family Unity Project (NYIFUP) at Brooklyn Defender Services (BDS). BDS provides multi-disciplinary and client-centered criminal, family and immigration defense, civil legal services, social work support and advocacy to more than 30,000 indigent Brooklyn residents every year. Since 2009, BDS has counseled, advised or represented more than 7,500 immigrant clients. In 2016 alone, we handled more than 1500 immigration matters across a full spectrum of services. I thank the City Council for this opportunity to submit testimony about the Mayor’s Office’s proposed changes to the NYIFUP program.

The New York Immigrant Family Unity Project (NYIFUP) is New York City’s groundbreaking, first-in-the nation program providing quality counsel to immigrant New Yorkers who are detained and facing deportation and separation from their families and communities. NYIFUP’s mandate of universal representation is the model upon which all other detained deportation representation programs in the nation are based. I strongly urge the Council and the Mayor’s Office to maintain the current parameters of the program and increase funding so that we can continue to provide universal representation to the rising numbers of immigrants who are being arrested and detained as a result of President Trump’s enforcement priorities. NYIFUP is a profound example of this City’s commitment to immigrant New Yorkers. Any changes to the existing model will be a dramatic step back from the values of due process for all that , by virtue of creating an infrastructure of accountability for prosecutors and judges, have powerfully exposed the injustice of immigration detention and rapid deportation.

II. Background on NYIFUP

   a. The impetus for the creation of NYIFUP

Despite facing the significant possibility of permanent exile from the United States, immigrants in deportation proceedings are not constitutionally entitled to a lawyer if they are unable to afford one. As a result, most immigrants across the country facing deportation are unrepresented. This leads to people being deported who have a right to remain in the country.

Prior to the creation of NYIFUP, only 33% of detained immigrants in New York City had counsel at the time their cases were completed. In contrast, nearly 80% of non-detained immigrants had representation. A 2011 study found that of New York City immigrants who were unrepresented and detained, only 3% obtained successful outcomes, as compared to the majority of respondents who were represented and non-detained who received successful outcomes in 74% of cases.
New York City recognized the injustice of the lack of counsel for detained immigrants and took the historic step of funding free lawyers for poor detained immigrants in removal proceedings. The New York Immigrant Family Unity Project was never simply about the people detained, but was created to strengthen families and communities, as the program’s name suggests. As the Vera Institute of Justice notes, between 2005 and 2010, more than 7,000 U.S.-citizen children in New York City lost a parent to deportation. In addition to the financial hardship caused by the loss of a primary breadwinner, these children have been shown to suffer significant emotional and psychological effects. The legal representation provided by NYIFUP supports New York’s vibrant immigrant community by reducing unnecessary detention and unjust deportation of individuals who have strong ties to their communities.

   b. How NYIFUP works today and the program’s successes

BDS is proud to be a NYIFUP provider, along with The Bronx Defenders (BXD) and The Legal Aid Society (LAS). Since the project’s inception three years ago, BDS NYIFUP attorneys have defended more than 700 people in deportation proceedings. The improved outcomes for detained people represented by NYIFUP attorneys have far exceeded initial expectations: as of December 2015, 52% of pilot clients have been reunited with their families. During the pilot assessment period, NYIFUP attorneys won 71 percent of their trials. NYIFUP is projected to increase the percentage of immigrants who will win the right to remain in the United States by 1,000 percent, compared with prior success rates for detained, unrepresented immigrants.

NYIFUP providers staff intake days at the Varick Street Immigration Court (New York City’s detained docket) 2-3 times per week, seeing all individuals who are appearing for the first time before the court. The providers do a one-page income assessment to determine whether a person qualifies for NYIFUP representation. People who can afford their own attorneys or who already have an attorney are not provided a NYIFUP attorney. The vast majority of detained people who appear at intake qualify for a NYIFUP attorney based on their indigency.

NYIFUP currently represents any detained immigrant who appears at the Varick Street courthouse and meets the income requirements. Judges led the way in calling for the creation of NYIFUP, both to limit injustice and ensure that people with lawful claims to remain in this country were able to do so, and also to increase court efficiency. The goal of the program was never to exclude people from representation, but rather to recognize that if everyone is represented, the system functions more efficiently and justly.

Some of the people that NYIFUP represents resided in Long Island or Westchester County prior to their arrest by ICE, but they are not excluded from representation under the NYIFUP model because the goal was always to promote universal representation for all individuals detained and facing deportation in New York City. Governor Cuomo decided to replicate the NYIFUP model when he set aside $4 million in the FY2018 state budget to ensure that detained New Yorkers in all upstate immigration courts will be eligible to receive legal counsel during deportation proceedings. The state model is also based on venue, rather than client residence, and will cover all individuals detained and facing deportation in four upstate immigration courts. By ensuring that people are not excluded from NYIFUP because of geographic considerations, with the addition of the FY18 funding from the state legislature, New York will be the first state in the nation to ensure that all people who are detained and facing deportation in any immigration court in New York State have a lawyer to help them assert and defend their rights. Brooklyn Defender Services calls upon the Council to maintain the current parameters of the program to ensure that all people whose cases are heard in New York City receive due process.

   c. NYIFUP currently does not discriminate against people if they have a criminal record

People are not excluded from NYIFUP representation because of a criminal record. Indeed, from the outset, NYIFUP contracts were given to immigration attorneys within public defender offices because the function is similar and because NYIFUP providers’ expertise in criminal law improves the quality of representation in cases where crim-immigration issues are central. City Council recognized that people with criminal records were the most likely to be detained; the most likely to be deported without legal representation; and the least likely to obtain representation from organizations that pick and choose clients, in part because people with criminal records often have complex defenses in a deportation case. The City recognized that public defenders are best situated to assess the veracity and significance of a charge and to challenge or appeal the charge or conviction if they find it was unlawful or improper.
The whole point of a universal representation system is to ensure that anyone who may have the chance to stay with their family is given the full chance to litigate that right. It also reflects the very American value that even if a person does not have a defense, they deserve someone in their corner to advise them and give them a voice in the proceedings.

NYIFUP has found great success in representing New Yorkers, no matter a person’s criminal record. Over the past three and a half years, we have helped multiple U.S. citizens avoid wrongful deportation, prevented torture victims from being returned to their home countries where they would face certain death, and prevented deportations based on crimes that never actually happened. Some examples of clients who may have been denied representation based on a criminal history carve-out, but who had extremely compelling cases, are here:

Christopher A U.S. Citizen Released After Months of Zealous Representation.
Christopher left his home country as a young boy because he was afraid for his life and came to the US to find his father, a U.S. citizen who worked on military ships. Christopher struggled with homelessness and spent time in jail. In 2016, he was detained by ICE, devastating his U.S. citizen wife who depended on him financially and emotionally. His NYIFUP attorney realized that under the complex case law on citizenship, Christopher had derived citizenship when his father became a U.S. citizen. After months of factual development, his attorney won a contested evidentiary hearing about key facts in his childhood which allowed her to then file a complete motion to terminate his case on account of his U.S. citizenship. Days after this filing, ICE released Christopher from detention, allowing him to finish his case while working and supporting his family. He would never have known the law he needed to fight his case without an attorney by his side.

Karam Safe from Torture and Restarting His Life.
Karam is an older man who has lived in the United States as a green card holder since he was five years old. He grew up in a deeply homophobic neighborhood and culture, ashamed of his identity as a closeted gay man. Between this challenge, his learning disabilities, his depression, and his father’s abandonment, Karam developed a substance abuse problem and picked up several felony convictions. After being released from prison, he was arrested by ICE. In NYIFUP intake, Karam told the attorney meekly, “It’s OK, I know you’re not going to take my case.” NYIFUP counsel told him we would take his case, and after hard work building a strong record, Karam won Convention Against Torture protection based on the torture or death he would face as a gay man with his specific limitations if deported to his home country. He is now a full-time caretaker for his elderly mother who is fighting cancer, and has a positive outlook on himself that he never had before.

Marco A Young New Yorker Nearly Deported for a Turnstile Jump That Didn’t Happen.
Marco is a permanent resident with cognitive limitations. He had early struggles as a teenager that led to him being convicted of felony offenses, although he received youthful offender status on those. ICE placed him in deportation proceedings. Since the law does not allow ICE to deport Marco based on youthful offender cases, they charged him as subject to deportation for a single turnstile jumping conviction from when he was 16. While he was unrepresented, Marco was actually ordered deported on this charge. His case was later re-opened, and subsequently, Marco’s lawyer realized that Marco’s criminal records were wrong, and that this case was a mere disorderly conduct violation, not a turnstile jumping. ICE counsel refused to correct their mistake, and Marco’s attorney obtained new certified dispositions and filed a written motion to terminate his case. The immigration judge agreed and terminated the case, and Marco no longer faces deportation as a result of simple errors in his records.

As these examples show, a person’s criminal record, even if they have been convicted of serious felonies, does not preclude someone from relief from deportation under our immigration laws. Yet none of our clients would have been able to make these complex legal claims on their own without the assistance of an experienced deportation defense attorney. By not limiting who has a right to counsel, NYIFUP currently ensures that people are entitled to stay in the U.S. with their families may do so. Those who do not have a legal path to remain here are assured that they had qualified counsel review their case and provide them and their families with information about their legal options as they navigate one of the most difficult decisions of their life, to accept an order of deportation.

III. Increasing Immigration Enforcement

The NYIFUP Coalition jointly requests $12,000,000 to fully fund the New York Immigrant Family Unity Project in FY2018 to ensure that every detained New Yorker has legal representation when facing deportation.

a. Rising caseloads

Immigration arrests are up 40% nationwide, as ICE ramps up enforcement efforts since President Trump took office. This figure is consistent with what we have been seeing on the ground at intake. Not only have caseloads been particularly heavy this fiscal year, but the Varick Street Court began running initial appearance dockets three times a week instead of two times a week in May, which will cause an increase in intake of up to 50% over previous intake levels. Indeed, we have had to make the difficult decision to stop picking up cases at intake in the month of June because we have already exceeded out caseloads targets as determined by the City for FY17. This means that when detained people appear in immigration court for the first time after May 25th, we will be unable to take their cases because we are over the contractual maximum. During this hiatus from intake, NYIFUP attorneys will continue to go to Varick to do Know Your Rights presentation, provide individual advisals, and request adjournments, but will not pick up new cases. Unless the City provides more money for FY18 to meet the increased need, we will not be able to tell these people that we will be able to take their cases at a later date. The need for City support of NYIFUP has never been more acute.

To make matters worse, not only are we seeing more cases, but we see that ICE has changed their policies in the courtroom, making it more difficult for us to obtain the kinds of favorable outcomes that we received last year.

   b. Asylum seekers no longer being released on bond

For existing cases, we are seeing decreases in the use of prosecutorial discretion and discretionary release. From February to mid-March, we did not have an asylum seeker released from ICE custody for a period of nearly seven weeks. It appears that the White House’s January 25 executive order on border enforcement had the effect of ICE refusing to release detained asylum seekers even where they had passed an initial screening interview and had a sponsor or family member with lawful status ready to house and support them. Other immigration legal service providers across the country also report that ICE has virtually stopped granting detained immigrants bond or parole, keeping them incarcerated throughout their cases unless they successfully appeal to an immigration judge. Since March, we have had a few releases since starting to file federal habeas corpus litigation against this practice, but remain concerned that going forward ICE’s default will be to detain everyone, including asylum seekers, parents, and victims of violence and trauma, and to fight release however we seek it.

   c. ICE targeting people who won relief but have not yet received their visas or green cards

We are also seeing that NYIFUP clients who have been granted relief but have not yet received their green cards are being sought out by ICE and re-arrested. For example, we represent a 16-year-old client from Central America who has an approved Special Immigrant Juvenile Status (SIJS) application who was arrested by the ICE gang unit and is now is a secure juvenile detention facility. While his SIJS application was approved, he has not yet received his visa number from USCIS. It is unclear to us why he was taking into detention by ICE, as he was not arrested by the NYPD or did not try to re-enter the U.S., two reasons that people are sometimes re-detained after release.

   d. Arrests in the courthouses

Our immigration clients, like our criminal defense clients, are scared to go to immigration court. ICE agents now roam the hallways at 26 Federal Plaza and we have observed ICE agents arresting people in the courts. This was uncommon in recent years. For example, BDS represents a client who was re-detained by ICE when he appeared for an immigration court date last year. How can we adequately counsel our clients about the importance of attending their immigration court appearances to fight against deportation when they face the threat of coercive immigration detention every time they enter the courthouse doors? Once detained, people depend on NYIFUP to represent them to help them challenge their detention.

   e. ICE OSUP check-ins

In some cases, ICE may decide not to execute a final removal order and might instead issue an “Order of Supervision,” or OSUP. A “post-order-of-removal” Order of Supervision may be issued under limited circumstances, such as when ICE determines the individual cannot be removed due to his or her country’s refusal to accept them, or when it is otherwise impracticable or contrary to the public interest to remove the individual. An Order of Supervision is considered to be a “humanitarian act” on the part of ICE, and may be available if the non-citizen is the primary care giver to a child with a medical condition, or if they themselves are receiving medical treatment for a serious condition, etc. The Order of Supervision will direct the non-citizen to appear at regular ICE check-ins, usually every few months and at least once a year.

Our clients who have been attending regular OSUP check-ins for years are now terrified to appear before ICE. One of our NYIFUP clients who was released from detention because he had a heart attack while in custody was recently hospitalized because of the stress and fear of deportation. Clients who previously checked in once or twice a year are now being asked to return in a couple of weeks or a month with their passports, ostensibly to facilitate deportation.

Our attorneys and office staff who are already overworked are doing their best to accompany our clients to OSUP check-ins, but we simply do not have the capacity to meet the need and quell the well-founded fears of our clients and threats of detention and deportation.

   f. In the Community

i. Clamoring for Know Your Rights

Since the presidential election last fall, our office has received increasing requests from the community to present Know Your Rights trainings to the community. Since the first immigration Executive Order was announced we are now receiving near daily requests for assistance from elected officials, community-based organizations, city agencies, religious institutions and the press.

ii. Daily Calls from Current and Former Clients

All of our attorneys and paralegals have seen a huge increase of panicked calls from our clients, current and former, about what to do if ICE is at their door, whether or not they can travel, what they should be doing with their U.S. citizen children, whether they should appear in court, requesting immigration legal services for their loved ones, and more.

In short, our communities are crisis and need the support of legal service providers more than ever. We want to continue to support all of our former and current clients, as well as serve more people, but our capacity is limited by the resources currently available to us.

IV. The Mayor’s Office’s Proposed Changes to NYIFUP

At the Executive Budget Hearing on May 11, 2017, the Mayor’s Office of Immigrant Affairs testified that the Mayor intends to allocate $16 million to immigration legal services, with an as yet undetermined amount to be earmarked for deportation defense. They also indicated that the Mayor’s plan would exclude people who have any of the 170 criminal convictions listed in the City detainer law from representation under any baselined city funding, and potentially exclude people who are not New York City residents.

We are deeply concerned about the Mayor’s proposal to limit NYIFUP’s universal representation model and deny certain categories of people the right to an attorney. It is morally wrong to allow any person who is detained in New York City immigration courts to be excluded from representation. Once we start picking and choosing who will get an attorney, we have unequivocally altered the fundamental purpose of NYIFUP, which is to provide everyone with a chance to make their case to the court that is deciding their fate.

   a. The types of convictions the Mayor has used to exclude our fellow residents from representation are not necessarily serious or recent

The list of 170 excludable offenses is a very broad list and it includes many cases that are not serious. Some examples from Brooklyn Defender Services’ own experience are as follows:
Assault in the 2nd degree:
o An immigrant mother used corporal punishment, but did not injure her child, not knowing that the laws and cultural norms in the U.S. are different from her country of origin.
o A client got frightened when a plainclothes police officer approached to arrest him. When the client ran, the officer fell and skinned his knee; the client was charged with assault 2nd because there was injury to an officer.
o A client had a verbal argument with a 66-year-old man who didn’t like that the client was smoking a cigarette. During the argument, the client pushed the man away, and the man fell to the floor. When the man told police his leg hurt, client was charged with assault 2nd because the complainant was 65 or older.
Criminal possession of a weapon 3rd:
o A gun was found in the closet in one room of an apartment. Every resident of the home, including the tenant’s mother and grandmother, was arrested and charged with possession of the gun.
Burglary in the 2nd:
o A homeless client went into the lobby of a building and took a trash bag. Because a lobby is considered a “dwelling,” the client was charged with felony burglary of a dwelling.
Robbery in the 2nd:
o An after-school fight turned into a “robbery” when one of the participants in the melee dropped his phone and another person picked it up.
Robbery in the 3rd:
o A homeless man pursued a couple for two blocks after asking them for spare change. No weapon or actual threat is required for this crime, so police often charge a person with felony robbery for “aggressive begging.”

   b. There is no time limit on the Mayor’s stated policy, punishing even people with very old convictions, who may have a chance to fight deportation but would not be able to mount a defense.

For example, a father who was brought to the U.S. as a child, got into trouble as a teenager, and is now in his 40s with a job and children of his own, would be unable to make his case that he should be allowed to stay in the country under discretionary relief. Currently, a qualified NYIFUP attorney would ensure that every legal and factual issue is investigated and that all the relevant information is before the court.

By foreclosing legal representation in the first instance, anyone with a compelling story will be summarily deported without having a chance to explain their circumstances. Prior to NYIFUP, claims of this type simply did not succeed when people were unrepresented. In the example of the father above, he was never incarcerated, successfully completed probation, and attended college. He now works, pays taxes, and attends church. Without an attorney, this man would be summarily deported, at great loss to his family and community. Many of the most compelling cases fall within the technical definition presented by the Mayor and may not qualify for NYIFUP if his policy is enacted as stated.

   c. The proposed residency requirement would mean that many people who are intimately connected to the fabric of New York City would be excluded from representation simply because they cannot afford City rents

New York City is the life center for all of the surrounding areas. Our city benefits significantly from the labor and investment of the millions of people who come to our City every day to work. Manhattan alone sees its population double during the day, from 1.6 million to 3.1 million, because of the influx of commuters from the other boroughs and outside the City. As rents rise, more and more vulnerable groups are being forced out of their communities, out into Westchester or Long Island so that they can afford to put a roof over their families head, even if it means hours-long commute every day to the City to work. The vast majority of our clients are housing insecure, and many are homeless, or spend time at the homes of friends, because they cannot afford city rents. Many of our NYIFUP clients have children and family members who live in New York City, even if they themselves did not reside within the five boroughs when they were arrested by ICE.

The purpose of NYIFUP has always been to promote the safety and well-being of New York’s immigrant communities, including U.S.-citizen children of immigrants, with the recognition that helping adults who have the right to stay in this country and provide for their families helps the community as a whole. By limiting the program to people whose last address was located in the City, we damage the universal representation mandate that is premised on the recognition of the broader benefit that NYIFUP services provide to our immigrant communities.

V. The Critical Importance of NYIFUP’s Universal Representation Mandate

Universal representation protects the most vulnerable New Yorkers, helps to combat racial disparities, and sends a strong message to our immigrant communities that the City will support and protect them against federal policies that are explicitly and intentionally promulgated to exclude and deport immigrants of color from our country.

   a. The most vulnerable New Yorkers will pay the highest price without counsel

People who are the youngest, the oldest, the mentally ill, the sick and disabled are at the most risk if they do not have an advocate to look at their case and determine if they can avoid deportation, usually to a country that does not have medical care to meet their needs. If any bar to representation is created, then those who need an advocate the most will not even get an attorney to look into their situation. Currently, NYIFUP attorneys make sure that people who may not be fully competent due to their age, health or other circumstances are protected in the legal proceedings and in the community.

Even if a vulnerable person ends up being deported, NYIFUP staff are able to expedite the deportation, reducing an unnecessarily jail stay, and can also coordinate with the client’s family to make any arrangements possible, deliver identity documents or belongings, and notify relatives in the home country.
b. Due to the racial disparities in the criminal justice system, the people most likely to be arrested, overcharged, placed in jail on bail and forced to accept a plea that would not minimize collateral consequences are overwhelmingly black and Hispanic.

It is important to view this policy in the context of the racial disparities in the criminal justice system. A black or Latinx person is more likely to be arrested for something that a white person would not be arrested for. In the examples of 170 crimes that would be excluded under the Mayor’s proposal, it is unlikely that a white mother who used corporal punishment would be arrested. It is also unlikely that a group of kids fighting after school would result in arrests in a white community. Certain groups of people are more likely to be saddled with one of the convictions in the detainer list because of their ethnicity. This is compounded by the fact that the person is likely to be in jail solely because they cannot afford bail. If any resolution of the case becomes available that would allow the person to go home, he or she is likely to accept it even if there is a chance of an immigration consequence.

Under the Mayor’s proposal, attorneys who are ready, willing and able to make sure that after all that has already happened to the person, they are not unfairly deported, would decline to even interview the person to see if they have any remedy before the Immigration Judge. This compounds the dramatic racial disparities that exist right now rather than starting to even the playing field for people of color.

   c. New York City’s clear message to all New Yorkers that if their loved one is locked up and facing deportation, they will not be alone fighting their case is eviscerated by anything less than universal representation

Over the past four years, the NYIFUP providers have shown the immigrant community that NYC stands by them and will ensure that they and their loved ones are treated fairly and with dignity. Even in cases when we cannot avoid deportation for a client, the fact that the information is clearly explained, family members are apprised about what is happening, and community organizations are clear who to call for help sends a powerful message to the community about what New York City stands for.

With families, individuals and community-based organizations unable to assess eligibility, the work done to support the immigrant community will be lost. The uncertainly and anxiety of the immigrant community will result in unscrupulous people taking advantage of people, many of whom would have been eligible for NYIFUP.

VI. Conclusion

NYIFUP has never been more important. We are a human shield for our clients, doing everything in our power to show them compassion in a system that increasingly views our clients as deportable others – “criminals” or “aliens” with rights that can and are regularly trampled on. Even when we lose our client’s case, we provide them with the opportunity to share their story with the prosecutor and judge and make the case why they deserve to remain in this city with their family and community.

We ask that the City Council reject the Mayor’s proposal to eliminate NYIFUP’s mandate of universal representation and instead, continue the program’s eligibility requirements as they currently exist while increasing funding to meet the increased need of immigrant New Yorkers in detained deportation proceedings.

If you have any questions, please feel free to contact me at 718-254-0700 ext. 434 or asaenz@bds.org. Thank you.

News

NEW YORK BAR FOUNDATION PRESENTS GRANT TO BROOKLYN DEFENDER SERVICES

The New York Bar Foundation recently presented a grant of $10,000 to Brooklyn Defender Services. The grant will be used to support their Veteran’s Assistance Program (VAP) to serve Brooklyn veterans with criminal justice involvement.   The program provides a comprehensive, client-centered approach to address criminal, civil and social challenges experienced by Brooklyn’s veterans, as well as critical issues related to their service that underlie or are impacted by the intersection of the criminal justice system and veterans’ lives.

“With the support of the New York Bar Foundation, BDS’ VAP will be able to serve greater numbers of veteran clients with screening and the additional social work services they need to help with their unique and complex cases,” states Lisa Schreibersdorf, Executive Director.

In early 2017, The New York Bar Foundation allocated more than $640,000 in grants to organizations across New York to assist in:

  • Increasing public understanding of the law
  • Improving the justice system and the law
  • Facilitating the delivery of legal services
  • Enhancing professional competence and ethics

The New York Bar Foundation is the philanthropic arm of the New York State Bar Association. To learn more about The Foundation and how you can support its charitable programs, go to www.tnybf.org, phone 518-487-5651 or email nybarfoundation@tnybf.org.

SCOTT HECHINGER TESTIFIES BEFORE THE NYC COUNCIL ON BAIL REFORM MEASURES

TESTIMONY OF:

Scott Hechinger

Senior Staff Attorney, Criminal Defense Practice

BROOKLYN DEFENDER SERVICES 

Presented before

The New York City Council Committee on Fire and Criminal Justice Services

In relation to Int. 1531-2017, Int. 1541-2017, 1561-2017, Int. 1576-2017 & Int. 1581-2017

May 2, 2017

I. Introduction

My name is Scott Hechinger and I am a Senior Staff Attorney at Brooklyn Defender Services. BDS provides multi-disciplinary and client-centered criminal, family and immigration defense, civil legal services, social work support and advocacy to more than 30,000 indigent Brooklyn residents every year. Over the last six years, I have represented thousands of clients facing misdemeanor and felony charges, from arraignment to trial. I see the consequences of bail and the administration of bail first hand, day in and out.

BDS deeply appreciates the work of council members on the Committee on Fire and Criminal Justice Services to minimize the criminal justice system’s reliance on pre-trial detention and bail.  I am grateful to be here to give voice to the experience of my clients and my fellow practitioners and add support to the practical and productive process-oriented reform proposals being considered today.

II. Background

“Will I be going home?”

Those are often the first words I hear my client say when I meet them behind the arraignment courtroom, bars or glass separating us. I first try to deflect and talk about the allegations and find out more about them, their story, their community ties, what brought them there.

But I can only deflect for so long. For most of my clients, the answer is “no, you’re not going home. Not if bail is set, at least.”

No matter the important process reform proposals being discussed today, when bail is set, most of clients will face the hell that is Rikers. That is because most of my clients cannot afford any amount of bail or the amount of bail set by judges. They will lose jobs. They will lose housing. They will leave those in need of caretaking without caretakers. They’ll miss medical necessities. And they ultimately will also have worse case outcomes.

Yet for those who may be able to afford some amount of bail, all too often the answer to that first question is also “no.” Not because of their inability to pay. But because of flaws in NYPD, court, and DOC processes that operate as barriers to accessibility and transparency. Flaws that undermine the purpose of New York’s bail statute: “to improve the availability of pre-trial release.”[1]

Financial conditions of release are on their face obviously unfair, but they also make for astoundingly poor public policy. It costs New York City taxpayers approximately $247,000 a year (nearly a $677 day) to keep someone incarcerated in Department of Correction (DOC) custody.[2] Research has shown that spending even two days incarcerated during the pendency of a case can increase the likelihood of a harsher sentence, can cause a permanent decrease in employment prospects, promote future criminal behaviors and have long-lasting negative health implications.

New York’s multi-layered bureaucracy and flawed practices involved in the process of the payment of bail results in individuals being unnecessarily sent to Rikers Island when bail could be paid prior to leaving criminal court, and/or held far longer once there.

Brooklyn Defender Services supports the proposals before this committee today, with some recommendations for increasing impact. Together, these proposals would:

  • Enhance accessibility, making it easier for individuals and families to secure timely pre-trial release, preferably before ever entering Rikers Island;
  • Reduce unnecessary obstacles that now stand in the way of individuals and families who may be able to afford bail from paying it; and
  • Promote transparency around the system of pre-trial detention by providing better information on the payment of bail to loved ones and by reporting outcomes so that law and policymakers can work toward reducing the numbers of those detained pre-trial.

III. Bills

Intro No. 1531-2017in relation to requiring the department of correction to efficiently facilitate the processing of bail payments

BDS strongly supports the introduction of this bill which would require DOC to accept cash bail payments immediately and continuously after a person is admitted to the custody of the DOC.  The bill also requires that the Department release inmates within two hours of payment. The bill also requires DOC to accept cash bail at the courthouse if there is not another location within one half mile of the courthouse.

Once bail is set at arraignments and the NYPD transfers custody to DOC in criminal court, bail cannot be paid until the person is first transported to Rikers, processed, and admitted, a process which often takes upwards of twelve hours. Until then, the person is “in transit.” Family members are forced to continuously check back in at bail windows, or online, to see when their loved one has finally made it through intake so they can finally post bail at that time, an arduous and time consuming process. For individuals with jobs, children and other family obligations, and those who live far away from Court, Rikers, or a Rikers borough facility, this means that bail usually will not get paid until sometime the following day. A person is thus forced unnecessarily to spend the night at Rikers, in intake, where there are no beds, no showers or access to medical staff. This bill would allow family members and others to pay bail while a person is “in transit” and begin the process of getting their loved one released from custody.

Yet in BDS’s experience, even after bail is finally paid, it takes clients a minimum of ten hours to be released from DOC custody. Indeed, we recently had a case where a client was not released for more than 27 hours.

Our client, who I will call Mr. B, was incarcerated at Brooklyn Detention Complex in February 2017. In early February he was transported to Brooklyn Supreme Court where he was placed in a room with another inmate in the Brooklyn Supreme Court “pens” on the third floor. He fell asleep on a bench and awoke to the other inmate sexually assaulting him. He immediately reported the assault to his attorney. After court, he verbally reported the incident to a DOC captain and requested to make a written report. He was not able to get an officer’s attention so he resorted to cutting his wrist, which finally prompted him to be seen by mental health and medical staff and file an incident report for the sexual assault.

Mr. B’s defense attorney was able to get into contact with Mr. B’s family, all of whom live in Ohio. Despite the distance and significant hardship, the family got the money together to pay a bail bondsman to bail Mr. B out and get him out of custody nearly three weeks after the sexual assault. However, the bail bonds agent paid the bail on the instant case, but not the $1 bail on a separate case. The bail bondsman told the family he would not pay the $1 bail unless they paid him an additional $125, which the family could not afford, so Mr. B remained in custody until the next day in late February, when our jail services social worker was able to go to Brooklyn Detention Complex to pay the $1 at 9 am.

Bail was officially paid by 11:10 am after a two-hour process, yet Mr. B was not released for another 27 hours. BXDC did not even transfer Mr. B from his housing unit to intake until 11 pm, 12 hours after bail was paid. They then said he needed to be cleared by mental health before being released. DOC transferred Mr. B from intake to the clinic at BKDC at 4 am the following day. He waited several hours before being seen by mental health staff and was later discharged from DOC custody at 2 pm, 27 hours after bail was paid.

This bill is a critical step forward if the end result is that people like Mr. B are released in two hours, as compared to 27, but we fear that the bill will only function as designed if DOC is held accountable in instances where they fail to comply. As currently written, there is no enforcement mechanism or cause of action for defendants who are not released within the two hour period. Without these protections, we believe that DOC will not have an incentive to change current practice.

We are also concerned that section (b) of the statute, as currently written, could be used to allow Mr. B to be held for 27 hours, as he was here, when mental health issues are implicated. It is not uncommon, in our experience, for abuse and assault experienced in detention to be the catalyst for mental health problems. However, a person who has paid bail to escape abuse should not be held even longer than someone who was not. We are not suggesting that someone who is experiencing an intense and immediate psychotic episode be released to the streets (there is already a competency process in place to handle cases like this), but we do want to point out the potential for abuse in the bill as currently written. If facts like Mr. B’s never see the light of day, these instances of abuse will continue to occur. In short, we need to have a review process for DOC decisions to hold city agencies accountable in individual cases where injustices occur.

Intro No. 1541-2017to permit the delay of the formal admission of inmates to the custody of the department of correction in order to facilitate the posting of bail

BDS supports the introduction of this bill that would authorize DOC, in their discretion, to hold someone for no more than 12 hours to allow the person’s family or friends to come to the courthouse to pay bail and avoid DOC detention altogether. The bill, however, effectively precludes delay in felony cases and DWIs.

While most of our clients cannot afford any significant amount of bail, we do have some clients who would be able to pay bail if they had sufficient time. More time is critical for our clients as bail payers often do not yet know about the arrest at the time of arraignment, work full time jobs and cannot just leave work, live far away, need to cobble together funds from family and friends, or need to secure the help of a bail bondsmen. Currently, when bail is set, we as public defenders have to scramble to delay the transfer of custody from NYPD to DOC, but the success of the request depends on factors outside of our control: the mood of NYPD personnel, the number of individuals in the holding pen, the Rikers bus schedule, or the time of day. In any case, thirty minutes is the norm and three hours is the absolute maximum delay now allowed before an individual is transported to Rikers.

We believe that 12 hours would, in some cases, be sufficient time to prevent unnecessary incarceration in DOC custody.

The permissive language in this statute would not require DOC to comply with the outlines proscribed, but it would require DOC to report on how often they voluntarily comply with the statute. Thus we support this bill with the understanding that it appears to be intended to function more as a voluntary pilot program than as a bill to actually facilitate the posting of bail.

We recommend amending the bill to actually require DOC to comply rather than permit them to delay transportation at their discretion. We also recommend amending the language in 1(a)(2) so that it is more clear; the current language is confusing.

The bill also leaves unanswered questions. How would this proposal work in night arraignments? Is this only for people who are arraigned during the day? Delay is “not permissible” for anyone who has bail set in an amount of $10,000 or more: essentially all felony cases. Given that the vast majority of cases where bail is set involve felonies – not misdemeanors, why was this particular threshold selected? Moreover, bail in the amount of $10,000 or more is usually paid using bail bondsmen, a more time consuming process. If the purpose of the bill is to serve as a pilot experiment, then many of these issues could be ironed out over the coming months. But we recommend that the Council consider all of the language carefully before signing anything into law.

Intro No. 1561-2017in relation to requiring the department of correction to facilitate the posting of bail or bond

BDS supports hiring someone to work in DOC to assist inmates to pay bond. Critically, this bill would ensure that a bail facilitator meet with inmates within 48 hours of admission to DOC custody and provide inmates with key information, including the amount of their bail or bond, their NYSID and other identifying information, and options for bail payment.

We strongly recommend that the bail facilitator position not be staffed by a corrections officer, but instead by a non-profit or other independent entity to improve collaboration and trust between the eligible person fighting for their release and the bail facilitator. We also request that there be a facilitator for each facility, as moving between the various facilities presents many challenges.

We also wonder how the facilitator will work with bond companies. Bond agents use a host of abusive practice to prey on those in need of their services. These practices have flourished unchecked. The bail facilitator should be trained to know the legal obligations of bail bonds companies and help mediate and advocate for the incarcerated person and their family.

Intro No. 1576-2017 – In relation to requiring the New York City police department to permit arrestees to access contact information

BDS supports this bill and has long called on the NYPD and court staff to allow detained individuals access to contact information in their phones. Now more than ever, individuals do not remember phone numbers of loved ones, friends, and family. Cell phone contact lists and speed dials have overtaken memories.

Without contact information, there is no way for defenders or the client to make contact with anyone who may be able to pay bail for the client, or simply support him or her in arraignments, which would strengthen defense counsel’s application for release. In addition, without contact information, the Criminal Justice Agency (CJA) will have a difficult time verifying community contacts, and for purposes of the delay proposals outlined in Intro No. 1541-2017 neither DOC nor the CJA will be able to make “direct contact with a person who reports that he or she will post bail . . . .”

We would recommend amending the language to ensure that arrestees are able to look at their own phones and write down the numbers themselves. As currently written, the bill would allow the officer to record the contact information for the detained person. We are concerned that this language would facilitate infringement of our clients’ Fourth Amendment right to be free of unlawful searches and seizures. It would be improper for officers to use this well-intentioned and long overdue policy change to violate the warrant requirement and inspect the contents of our clients’ phones in the hopes of finding incriminating evidence.

There is an existing workable model for this procedure at the Red Hook Community Justice Court. There, a detained individual’s personal effects, including their wallet, keys and cell phone, are transported from the 72nd, 76th, and 78th precincts to the courthouse in a manila envelope along with the defendant. While in the pens at Red Hook awaiting arraignments, the individual, with the assistance of court officers, is generally permitted to pull up the contact information for a few individuals to allow them to provide verifiable contact information to the CJA and to the court to make a stronger argument for release on recognizance.

Furthermore, transporting a person’s personal effects in a manila envelope to the courthouse means that a person may then have the means to pay bail with cash or credit card in his wallet. However, even if the person has access to his debit or credit card, under current practice, he cannot actually use the ATM to withdraw money because there are no ATMs located in the pens and staff refuse to escort our clients to the ATM in the courthouse.

Intro No. 1581-2017in relation to requiring the mayor’s office of criminal justice (MOCJ) to post public information regarding posting bail in courtrooms

BDS supports this bill, which would require MOCJ to work with the Office of Court Administration (OCA) to display information regarding posting bail conspicuously in all locations in courthouses. Information shall include how to determine the amount and type of bail ordered and all processes required to post bail, including where and how to post bail.

We recommend providing the public with more information, including the maximum fee that a bondsman can charge and other information about bail bonds to limit the abusive practices that bail bonds agents engage in as a matter of course. Rather than recreating the wheel, in addition to posting clear information about the processes required to post bail in the courthouse, we recommend that MOCJ distribute a resource called “Bail’s Set…What’s Next?” created by the Center for Urban Pedagogy in partnership with the Brooklyn Community Bail Fund.[3]

IV. Additional Action Needed

These bills are an important step in ensuring that people who may be able to pay bail are in fact able to pay bail and avoid unnecessary and harmful pre-trial detention. However, there is still more that we must do if the City is committed to substantially limiting pre-trial detention sufficiently to close Rikers Island.

   a. We must hold DOC accountable if they fail to comply with these proposed laws.

These bills must include a cause of action or sanctions if DOC fails to follow its legislative mandate. Without a consequence, we have little hope for the kind of systematic change that closing Rikers Island requires.

   b. We must hold prosecutors and judges accountable for relying solely on cash bail and commercial bond as forms of relief, even though New York law provides courts other options

The express purpose of bail is to enable the pretrial liberty of all defendants, regardless of their financial means. For this reason, New York Criminal Procedure Law Article 520 authorizes multiple forms of bail other than cash and bond to fulfill its purpose of not conditioning liberty on the defendant’s ability to pay money upfront. Yet New York judges uniformly neglect to consider non-monetary forms of bail. Instead, judges are firmly entrenched in the culture of setting only bond or cash, the two most restrictive forms of bail. The City must work with judges and prosecutors to encourage them to allow for unsecured appearance bonds and other bail alternatives that are actually within a person’s reach.

   c. We must make it possible for a people to pay bail for themselves if they have the money

Practically, if a person can pay bail for herself, she should be able to do so. She therefore needs access to both her wallet (with her credit or debit card and/or cash) and an ATM.

For a person detained in the pens at the courthouse: Currently, a person’s personal effects including wallet, keys, MetroCard (and even critical assistive devices such as canes, walkers and crutches[4]) remain back at the precinct and do not travel with the accused to arraignments. Even if she is allowed to take her debit card with her, staff will not escort her to an ATM while in custody, and there are no ATMs located in the pens. While these bills address the ability of family and friends to pay bail, they do nothing to help people pay their own bail. If the point of bail is to set an amount that a person can actually afford to ensure their return to court, then we must allow people who can pay to do so on their own. Moreover, Unsecured Appearance Bonds, an authorized alternative form of bail that would allow a defendant to be released upon the promise to pay a set amount if he or she does not come back to court, are never ordered, despite the requests and best efforts of public defenders.

People who are already in DOC custody at a DOC facility: People who are incarcerated can pay bail through their commissary account, but if they have a credit card/benefit card in their property with DOC, they cannot access it nor use it themselves to pay their bail.  This becomes a huge obstacle for people who do not have family or community support who can help pay. We recommend that people be allowed to access their personal effects so that they can pay their own bail and be released.

V. Conclusion

These bills demonstrate the Council’s commitment to making our bail system fairer and more just, a critical component to reducing pre-trial detention and ending the horror that is Rikers Island. BDS looks forward to working with the Council to achieve our shared goals. Please do not hesitate to reach out to me with any questions about these or other issues at (718) 254-0700 (ext. 276) or shechinger@bds.org.

[1] People ex rel. McManus v. Horn, 18 N.Y.3d 660 (2012).

[2] Independent Commission on New York City Criminal Justice and Incarceration Reform, A More Just New York City (2017), available at https://static1.squarespace.com/static/577d72ee2e69cfa9dd2b7a5e/t/58f67e6846c3c424ad706463/1492549229112/Lippman+Commission+FINAL+4.18.17+Singles.pdf.

[3] Available at http://welcometocup.org/Store?product_id=141.

[4] See BDS’s June 23, 2016 City Council testimony on access to court facilities for people with disabilities, available at http://bds.org/wp-content/uploads/06.23.2016-BDS-Testimony-City-Council-Committees-on-Disability-Mental-Health-Legal-Services.pdf.