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BDS TESTIFIES BEFORE THE NYS ASSEMBLY HEARING ON HEALTHCARE IN NYS PRISONS AND LOCAL JAILS

TESTIMONY OF:

Kelsey DeAvila – Jail Services Social Worker

BROOKLYN DEFENDER SERVICES

Written with: Riley Doyle Evans

Presented before

The New York State Assembly Committees on Health and Corrections

Hearing on Healthcare in New York State Prisons and Local Jails

October 30, 2017

My name is Kelsey DeAvila and I am the Jail Services Social Worker at Brooklyn Defender Services. BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy in nearly 40,000 cases in Brooklyn every year. As part of our representation, BDS dedicates staff, including myself, to provide direct services and advocacy for our clients while they are incarcerated in New York City jails in pre-trial detention, serving sentences of less than a year, or returning from New York State Department of Corrections and Community Supervision (DOCCS) prisons upstate. I thank the New York State Assembly Committees on Health and Corrections, and in particular Chair Gottfried and Chair Weprin, for inviting us to testify regarding healthcare provision in New York State prisons and local jails.

I am providing upfront a list of recommendations that are explained in detail later in my testimony:

Recommendation #1: Invest in improvements to community-based health care, including mental health and addiction treatment, and ensure health equity across all communities.

Recommendation #2: Decarcerate by dramatically reducing pre-trial detention, reforming our criminal discovery laws, enacting sentencing reform, ending the Drug War and Broken Windows policing, and swiftly closing the most abusive prisons and jails.

Recommendation #3: Provide confidential and medically- and therapeutically-appropriate healthcare facilities in prisons and jails, and ensure access to care by more efficiently using existing security staff for medical escorts and removing all medical decision-making from the hands of correction officers.

Recommendation #4: Ensure continuity of care for people upon intake, while incarcerated, and upon release.

Recommendation #5: Provide destigmatized medication-assisted treatment for drug addiction in all prisons and jails.

Recommendation #6: Ensure timely access to medication and outside specialty appointments.

Recommendation #7: Coordinate collective purchasing of expensive medication for Hepatitis C and other chronic illnesses to ensure full access to treatment in state prisons and local jails.

Recommendation #8: Responsibly expand the use of Electronic Medical Records.

Recommendation #9: Ensure access to consistent transition-related care for transgender people in prisons and jails.

Recommendation #10: Ensure free access to quality feminine hygiene products as needed.

Recommendation #11: Offer female doctors and other medical staff to incarcerated women in all prisons and jails.

Recommendation #12: Streamline the process for expecting mothers to access nurseries or other appropriate housing and remove unnecessary obstacles.

Recommendation #13: End the use of private healthcare contractors across the state, as New York City has done.

Recommendation #14: End the torture of solitary confinement and replace it with more humane and effective alternatives by passing the Humane Alternatives to Long-Term (HALT) Solitary Confinement Act (S.4784-Parker/A.3080-Aubry).

Recommendation #15: Promote the axiom among correctional healthcare staff that #BlackLivesMatter, as do the lives of other marginalized people in our prisons and jails.

Background

Before focusing on specific issues related to healthcare delivery in correctional facilities, we wish to highlight that addressing the public health calamities associated with incarceration should not be considered in a vacuum. New Yorkers who pass through local jails and state prisons each come from and will return to communities around the state. Mitigating the harm of incarceration therefore involves addressing disparities in healthcare and outcomes which disproportionately impact poor communities and communities of color. Before people enter the criminal legal system, inadequate healthcare results in disproportionately high rates of chronic conditions among these communities, which are only exacerbated in jails and prisons. Similarly, a dearth of adequate community-based mental health and drug treatment funnels people struggling with mental illness into handcuffs, jails, and prisons, where their conditions are met with violence and isolation rather than appropriate care.

At the end of the system, people who return from prison or jail to communities lacking adequate healthcare infrastructure and affordable and supportive housing are at serious risk of falling through the cracks. In the case of people with mental illness the result is too often a tragic, churning cycle of incarceration, lapses in treatment, homelessness, and recidivism. For people with chronic medical conditions – even with adequate treatment in prison – a poorly managed healthcare transition during re-entry can lead to interruptions in care followed by irreversible sickness and premature death.

In sum, as you take on the important issue of correctional health, we urge you to keep in mind how the challenges in question fit into a larger continuum. Ultimately, prisons and jails were never intended to serve as medical facilities and conditions inside are fundamentally inappropriate to delivering a high standard of care. Decarceration while investing in healthy communities must remain the primary goal. Ending unnecessary arrests and discriminatory bail practices, adopting sentencing and discovery reform, and establishing a robust framework to divert people in need of treatment would all contribute to this end.

Selmin Feratovic died at the age of 28 while detained at Otis Bantum Correctional Center on Rikers Island less than two weeks ago, on October 19, 2017. He had been in pre-trial detention for nearly seven months, presumed innocent but locked in a cage because the local prosecutor, who alleged he had tried to steal from a laundromat coin machine, requested an absurdly high bail and the judge granted it. Specifically, a man accused of stealing coins was suddenly asked to cover $50,000 bail or sit in jail for the remainder of his case. The Bronx District Attorney overcharged the case as a violent felony and refused to make a reasonable plea offer, leaving Mr. Feratovic in jail at an approximate cost of $140,756 over the seven months.[1] Imagine what that money could have done to help him in the community. According to his attorney at the Bronx Defenders, he had struggled with opioid addiction after receiving a prescription for oxycodone while recovering from a serious motorcycle accident. Drug treatment in the community was inadequate. “Police sources” have told the press that he died of an apparent overdose, but the investigation is ongoing and, as his attorney wrote in a New York Daily News op-ed, the cause of his death is, more broadly, systemic injustice. That is why we say criminal justice reform is a matter of life and death.

In the meantime, because people with mental illness and chronic medical conditions are overrepresented in our criminal legal system, it is essential that healthcare in prisons and jails be as compassionate, accessible and appropriately resourced as possible. In addition to the moral and legal obligations to provide treatment, public health stands to benefit if our prisons successfully diagnose and treat conditions which may have been undetected or mismanaged in the community. Ensuring continuity of care in re-entry has the potential to reduce recidivism, improve public safety, and most importantly, to improve health outcomes in communities across the state. To this end, I would like to share some specific insights drawn from the experiences of our clients and staff, which I hope will be useful in your efforts to improve healthcare in New York’s jails and prisons. I also lend support for the comments of certain other organizations testifying today, such as the Correctional Association, who offer tremendous insight and expertise regarding the current state of affairs in our prisons.

Access to Care

Access to care has long been and remains a fundamental concern for our clients in city jails and state prisons. Access to care in correctional settings is hamstrung by several distinct, but interconnected issues. Despite the significant healthcare needs of the population they house, jails and prisons are not constructed like hospitals, which prioritize clinical space and access to providers.

For instance, the Anna M. Kross Center – a jail on Rikers Island which houses many of the system’s most high-needs patients – was built haphazardly over many years. As each new wing of the jail was added, the corridor connecting the housing units to the central clinic became longer and longer. Now many patients must be escorted close to a mile to access treatment. In an emergency, the problems with this arrangement are obvious, but even for routine medical visits, such distances create bureaucratic and staffing headaches. Healthcare staff on Rikers Island have taken the initiative to establish “mini-clinics” closer to housing units, which serve as a stop gap. However, these spaces are often cramped, sometimes lack necessary infrastructure to maintain hygiene, and may not allow for confidentiality.

More broadly, jails and prisons lack adequate confidential treatment spaces. A dearth of dedicated treatment spaces near housing units is particularly detrimental to effective mental healthcare delivery. Many, if not most, people are uncomfortable candidly reflecting on their struggles within earshot of other incarcerated people and custody staff, especially as members of the latter group are known to prey on vulnerable incarcerated people. Clinical sessions in converted utility closets or on the dayroom floor are a far cry from the therapeutic setting patients with serious mental health conditions need and deserve. Even when people are seen in a central clinic, privacy is very often compromised by security staff who linger in the room, or because patients are brought in groups and crowd treatment spaces.

Delivering Healthcare in a Security-Driven Environment

Compounding physical plant limitations, the predominance of security in correctional institutions further inhibits access to healthcare. For example, when a facility goes on lockdown for security reasons, all movement may be halted, sometimes for extended periods. This means no one is able to go to the clinic, leading to delays care. Even when facilities are operating as designed, security interference in access to care and treatment decisions is a common occurrence.

In New York City jails, every incarcerated person must be escorted by a correctional officer to and from the clinic. As uniformed staff are often occupied with other tasks, or otherwise unwilling to help, escort shortages frequently result in missed appointments and treatment delays. One sensible fix to overcoming the inevitable competing demands on correctional staff is to more wisely balance staffing to include roving medical escort posts during day-shifts who are not assigned to other tasks. We believe this could be achieved at present staffing levels through more efficient staff management, ensuring adequate escorts, and limiting instances in which staff are pulled away from crucial security positions.

Beyond their role as escorts, correctional officers serve in many respects as gatekeepers to medical care, which poses serious dangers to the well-being of people in custody. For instance, in New York City jails, an individual seeks medical care by submitting a “sick call” request to the officers in their housing unit. The officers are then responsible for forwarding the requests to medical staff who schedule an appointment. Under this arrangement, correctional staff can and do refrain from forwarding sick call requests to the clinic, or falsely claim that an individual “refused” to be brought to their appointment, as a tool of control or punishment.

One BDS client who had filed complaints against correctional staff was repeatedly denied sick call as well as escorts to the clinic, and was documented as having “refused” care. As a result of being denied timely medical treatment for a cut, the client developed gangrene which nearly required amputation. As this case illustrates, denying access to medical care is a particularly cruel form of punishment. It is also used to conceal injuries sustained from officer brutality.

A pilot effort in certain New York City jails seeks to mitigate this issue by establishing confidential “sick call” boxes in common areas, which are only accessible to healthcare staff. This common-sense sick-call reform is a welcome first step which should be expanded in other institutions. However, situating access to treatment and medical decision-making as the exclusive domain of healthcare providers should be the ultimate goal.

A recent incident with another BDS client demonstrates the significant health risks that arise when security staff can simply override medical determinations. This client had a diagnosed seizure disorder, which was not appropriately managed with medications at Rikers. Despite written notification from medical staff outlining the specific medical dangers should he be placed alone in a cell, he spent numerous months in solitary confinement, over the repeated objections of healthcare staff. His isolation only exacerbated his medical condition, resulting in weekly seizures, one of which led to a broken tooth and shoulder injury. Our office advocated for his immediate transfer to a hospital or an open dorm. He was sent to Bellevue Hospital for a week of tests, but was ultimately sent back to Rikers to finish his time in solitary confinement.

Dual Loyalty and the Role of Healthcare Professionals

Arising from the security concerns in jails and prisons, correctional healthcare staff face dual loyalty challenges, which can interfere with their providing compassionate and appropriate care. On the one hand, medical and mental health providers are ethically bound to treat patients. On the other hand, providers are pulled toward loyalty to correctional staff who are charged with ensuring the providers’ safety. This dynamic can lead providers to doubt their patients’ credibility, and to feel hesitant to speak out when they witness or suspect abuse on the part of corrections officers. New York City Health and Hospitals Corporation, the healthcare provider in NYC jails, trains their staff to manage dual loyalty. While dual loyalty training is far from a complete solution, we believe it is a best practice which should be mandated in all jurisdictions.

In addition to dual loyalty training, jail and prison officials should welcome a culture shift which empowers healthcare officials to weigh in on management decisions and have unfettered authority with regard to treatment matters, unless a genuine, immediate security emergency is at play. Simultaneously expanding de-escalation and mental health first aid training among corrections staff can help officers better understand how treatment interventions work and why they should be given priority.

These steps should be taken urgently to prevent the tragedies all too common in New York’s prisons and jails. Perhaps such efforts would have spared Samuel Harrell who, instead of receiving compassionate mental health interventions, was reportedly beaten to death in Fishkill State Prison when he experienced an obvious Bipolar episode. The same may be said for Bradley Ballard and Jerome Murdough who died, neglected in their cells on Rikers Island, despite corrections and healthcare staff being aware of their dire conditions.

Continuity of Care

Continuity of care is particularly important in correctional institutions owing to the high prevalence of people with chronic medical conditions (e.g. diabetes, hypertension), infectious diseases (e.g. Hepatitis C) and behavioral health and addiction issues – conditions for which lapses in care can have serious impacts on health outcomes. Death by overdose is particularly common upon release from incarceration.[2] Ensuring continuity of care requires that people have timely and consistent access to treatment upon arrest, during incarceration, and when they return to the community. In each phase, various challenges arise that impact our clients’ wellbeing, and the health of their home communities.

On the front end, we reiterate that it is imperative that New York State do a better job providing equal access to compassionate healthcare to all communities. In addition to making our state more just, improved healthcare access in poor communities would likely reduce contacts with the criminal legal system. Moreover, better community healthcare would result in better and more cost-effective management of chronic health conditions when people are locked up in jails and prisons, thanks to more consistent diagnosis and treatment prior to detention. More robust community mental health and addiction management services would benefit public safety by reducing unnecessary arrests of people who require treatment interventions and support.

Substance Abuse and Addiction Management

Continuity of care issues arising as people enter the New York City jail system are many and complex. Our clients’ experiences suggest that Health and Hospitals Corporation and the Department of Corrections have addressed various challenges with mixed results. The agencies should be acknowledged for their efforts to safely manage substance abuse and addiction among people in custody. Prompt screenings for alcohol withdrawal appear to function well to avoid possibly fatal withdrawals. The substance abuse program “A Road Not Taken” offers people struggling with addiction an opportunity to be housed among peers and receive programming geared to support their efforts to get clean.[3] We believe there are best practices to be gleaned from these programs which should be evaluated for use in other jurisdictions.

The Key Extended Entry Program (KEEP) in New York City jails facilitates detox and manages methadone treatment for opiate-dependent individuals. Unfortunately, people facing state prison time are excluded from KEEP because state prisons do not offer methadone management. Many people face state prison time “on paper” although there is little real chance they will be sent to state prison. As cases proceed through plea bargaining, prosecutors wait until pleas are entered to withdraw the most serious charges, despite all parties involved being aware that prison time is not a likely outcome. One collateral consequence of this practice is that many people who need methadone treatment are excluded from KEEP. More honest prosecutorial practices would benefit public safety, as people maintained on methadone are more likely to continue treatment in the community and avoid relapse. Likewise, the state prisons system should offer methadone treatment and other medication assisted treatment (MAT), particularly in this era of skyrocketing opioid overdose deaths. Research has shown that MAT can cut the mortality rate among addiction patients by a half or more.[4] MAT in jails and prisons and other public health approaches to tackling opiate addiction should be expanded across jurisdictions, according to best practices of community-based healthcare.

Relatedly, we are concerned about the knee-jerk embrace of Vivitrol among corrections officials as an alternative treatment for opiate addiction. Although the drug claims to block an individual’s opioid receptors in long-lasting doses, we are dubious about the drug’s effectiveness in treating addiction sustainably. It is our position that tackling addiction must address root causes that lead people to use drugs in the first place – poverty, trauma, desperation, and other factors. We urge the state to maintain a critical perspective on drugs peddled as a “magic bullet” for addiction. Rather, we support committing greater resources to treatments that have been subjected to adequate study and been found to sustainably manage opiate addiction, prevent overdoses and improve public health.[5]

 Medication Delivery

Despite some strengths, New York City jails fall short in the realm of continuity of care in several important respects. One of the most common complaints I receive is about the failure to consistently deliver medications in a timely manner. It is not uncommon for our clients to wait several days after being taken into custody before they receive crucial medicines. Often, they do not receive their medications until I advocate on their behalf. Lapses may also occur when individuals travel between jails. Whether high blood pressure medicines, inhalers, or anti-psychotic medications, these lapses can have devastating consequences.

Specialty Appointments

Another persistent shortcoming involves appointments with outside specialty providers. By design, prisons and jails cannot staff a full range of specialists full-time. However, for a variety of sometimes elusive reasons, outside specialty appointments and follow up visits are frequently delayed or missed altogether. Quite often, at the time of their arrest, clients have upcoming follow-up appointments scheduled with specialists. For unknown reasons, Health and Hospitals Corporation too often fails to promptly schedule and deliver follow-up visits, despite being informed of the situation by the patient and our office.

In one recent case, our client had 2 stents around his kidneys which were due to be removed after only 2 weeks. His arrest delayed the necessary operation and healthcare staff in the jail ordered an assessment before moving forward. Despite significant advocacy from our office, approximately 5 months went by without a response, and the specialty appointment to remove the stents had not been ordered. Eventually, the client developed an infection which had to be treated, further delaying the operation to remove the stents. Meanwhile, our client suffered a great deal of pain and when urinating, he became lightheaded. Over time, his appearance declined; his skin became pale, and he was eventually transferred to a hospital where he finally received treatment.

In other cases, the logistical and security complications involved with transporting people to and from outside clinics are a central challenge. For instance, when correctional escort officers are absent or reassigned to other posts, a chain reaction can delay an appointment for months. I often receive reports of people waiting hours in the jail intake for their escort. If they ever leave, they arrive late for their appointment, waiting several more hours at the specialty clinic, before eventually being told that they arrived too late to be seen that day. Rescheduling missed appointments only compounds delays in treatment. In light of these circumstances in New York City, where a vast public hospital system is relatively accessible, we surmise the challenges are even greater in rural communities. Sufficient escorts and dedicated specialty schedulers who interface between correctional staff and specialty clinics are fundamental to address specialty care delays.

Chronic Care

Improving treatment of chronic medical conditions is also relevant to continuity of care. Individuals who have initiated a course of effective but costly Hepatitis C treatment in the community should be continued on this treatment when in custody. Local jurisdictions can seek reimbursement waivers from the federal Centers for Medicare and Medicaid Services (CMS) for this treatment.[6]  More broadly, despite their significant up-front cost, sound public health policies require treating Hepatitis C in correctional settings to improve health outcomes among individuals and avoid longer term costs associated with cirrhosis and other related conditions.[7] Unfortunately, considerable barriers are foreseeable during the present administration toward securing more general waivers for federal reimbursement for chronic care delivered in prisons, but DOCCS should collaborate with local jail administrators and others, perhaps across the country, in advocating for funding.

While we support advocacy to reform Medicare and Medicaid law to expand federal funding for correctional health, we encourage the state to be proactive in other ways in the meantime. As noted in a 2016 Yale study, reducing costs is one way to expand availability of Hepatitis C treatment. The study describes cost-reduction strategy including coordination between state agencies, for example Medicaid and DOCCS, along with county agencies, to purchase drugs collectively and with greater buying power. Alternatively, while prisons are excluded from the federal 340B Drug Discount Program, partnering with outside providers which are eligible, may offer cost savings. However, securing treatment through outside providers can give rise to additional challenges, as mentioned previously.[8]

Re-Entry

Others testifying today will certainly offer more comprehensive recommendations to improve continuity of care during re-entry. Nevertheless, I would like to highlight a few of the recurrent issues handled by our Re-Entry Unit, some of which could be relatively easily addressed. In addition to a 30-day supply of medications, we believe DOCCS should make a greater effort to discharge people with a copy of their essential medical records, which would help to avoid delays in securing treatment in the community. At present, people must have the wherewithal to request a copy before they are discharged, and are not prompted to do so during pre-release counseling. Predictably, many do not.

Furthermore, bureaucratic missteps can inhibit access to care upon discharge and should be prevented. Despite welcome efforts to enroll people in Medicaid prior to discharge, people are frequently released on inpatient Medicaid status, rather than outpatient status. In practical terms, this limits the range of services available to hospital care. Our re-entry specialists find it takes days to weeks to correct this relatively straightforward error. In the meantime, people are unable to access the full range of services available through the health-home system, relying instead on emergency rooms, thereby further draining public health resources.

Additionally, our clients’ experience suggests that DOCCS does not do enough to educate people to navigate the complex and intimidating healthcare system awaiting them in the community. A first step to resolve this issue would be to better incorporate healthcare staff and navigators into the pre-release process. This process should offer opportunities for people close to discharge to ask questions of healthcare providers who can provide guidance on managing their health conditions once out of prison.

This is especially important for the large proportion of aging people in New York State prisons who are more likely to have higher healthcare needs, and at the same time, be less familiar with an evolving healthcare landscape. More than 10,100 people aged 50 or older are currently incarcerated in New York, according to the latest available data. Even as the total prison population in this state has gradually decreased, the number of individuals in this older adult category has jumped by 46 percent.[9]

Advocates like the Release Aging People in Prison (RAPP) Campaign, Parole Justice New York, Citizen Action and the Challenging Incarceration collective are pushing Governor Cuomo and the Legislature to adopt reforms that would allow for many incarcerated older adults, who have the lowest recidivism rates, to be released. We support these efforts – prisons are not well suited to handle the complex and expensive healthcare needs of older adults, and are simply not humane institutions to house aging people. In addition to securing release for these individuals, it is imperative that state and local officials take steps to bolster the quality and range of healthcare services to meet their unique needs.

Currently, in New York City there is a broad slate of programs and services for older New Yorkers, and a growing network of re-entry resources, but very little overlap between the two. Older adults endure unique hardships in prisons and jails, as the facilities and staff are not adequately equipped to support them. Crucially, family members and others in the home and community who would traditionally serve as caretakers are prevented from doing so. Likewise, few community-based organizations that serve older New Yorkers specialize in meeting the needs of returning citizens. In sum, dedicating adequate study and resources to address shortcomings in service provision at the intersection of aging and reentry will become increasingly urgent in the coming years.

Parole also has a role to play in continuity of care. Barring certain exceptional cases, our clients report that parole officers have adopted an increasingly punitive orientation over the years, and they do little to assist them to navigate the healthcare system after they arrive home. Because parole offices are situated locally, they are better positioned than upstate prisons to assist people to access care in their communities. In addition to making information about area providers available, parole officers should take initiative to build relationships with health-home networks and help returning citizens resolve bureaucratic issues with Medicaid and other agencies. More broadly, keeping people healthy improves public safety and should be a high priority in the agency’s mission.

Quality Control: Electronic Medical Records

There is certainly more to say regarding quality control strategies, but my remarks will be limited to lending support for expanding the use of Electronic Medical Records (EMRs), which may be funded through CMS “Meaningful Use” funds. When used properly, EMRs have potential to assist healthcare management identify and resolve problems, balance staffing with demand, and deliver evidence-based care. In the case of individual patients, those who transfer or reenter a facility are less likely to experience serious lapses in care, and schedulers can be alerted when chronic care follow-up deadlines are missed or specialty care is delayed. At the system-wide level, EMRs can help identify trends, bolster quality improvement, and improve transparency regarding health outcomes.[10]

Gender and Gender Identity and Expression

Transition-Related Care

The difficulty surrounding a transgender person’s ability to access hormones while incarcerated in our jails and prisons is not uncommon.  In order for a person to receive transition-related medication they will first need a diagnosis of Gender Dysphoria.  This can be problematic to many people who do not have access to safe and affordable healthcare in the community prior to arrest and will only delay their necessary treatment once detained.  Transgender clients frequently report delays in accessing sick call and scheduling an appointment for a diagnosis evaluation.  It is important to note that those who do need medical treatment related to their transition often do not receive consistent treatment. We know that abrupt and extended halts in hormone replacement therapy can have serious and irreversible effects on one’s physical and mental health, yet such interruptions are sadly common.

Feminine Hygiene Products

Access to feminine hygiene products is critical for women’s health. Doctors recommend changing sanitary napkins or tampons every four to eight hours to prevent bacterial and fungal infections that may lead to serious health problems. All women who are incarcerated should have access to feminine hygiene products in sufficient quantities to meet their individual needs.

According to a recent survey by the Correctional Association, 54 percent of respondents in New York prisons said they did not get enough sanitary napkins each month. This is consistent with the experience of our attorneys and social workers supporting our clients detained at Rikers. Some clients tell us that they are given only 12 sanitary napkins at a time. In other blocks, pads are left out in a bucket or box in the bathroom. This supply is sometimes insufficient for women with heavier flows. Women without a sufficient supply must then request additional napkins from guards, who often use the request as a way to control women and assert their authority over her. Our clients tell us that they have to beg officers for more free pads only to be treated with disrespect that make them feel ashamed. Furthermore, the free napkins provided at Rikers are of very poor quality and most of our clients will go to great lengths to purchase name brand napkins from the Commissary. Our clients report that the free napkins are not properly absorbent and thus easily lead to staining of their uniforms.

Renee’s story is a perfect example of how Rikers current policy on feminine hygiene products affects poor New Yorkers. Renee, a 24-year-old BDS client, spent nine months detained on Rikers. She asked her BDS social worker not to visit her while she was on her period because she was worried about leaking through her uniform and having to walk the halls of the jail with a bloodstain. Renee had to choose between the shame of leaking blood while on her period and meeting with her legal team. Renee comes from a low-income family and worked overtime in the jail to pay for her basic needs including deodorant, soap and sanitary napkins. She shared that she did not have enough sanitary napkins and she would try to wear the same napkin for as long as possible to ration the supply she was able to purchase from the Commissary because the free pads were of such low quality.

Staffing Female Providers

Many of our female clients have a history of physical and sexual abuse prior to incarceration.  For many of these women, their trauma has never been processed.  It is essential for medical staff to be trained on how to treat women with a history of trauma because pelvic and breast exams can be re-traumatizing. In addition, women should be allowed to choose female doctors for gynecological care.  At the Rose M. Singer Center, the female facility on Rikers Island, many of our female clients have reported feeling unsafe visiting a male doctor.  This becomes a barrier and our clients will not seek medical attention, even during urgent and critical situations due to the fear of being assessed by a male staffer.  Though the policy in our New York City jails allows for a female to be present when a male doctor is examining a woman, it does not negate the feelings many of our clients’ experience.

Access to Nursery for Expecting Mothers

In a recent case, a BDS client was 7 months pregnant when she was sentenced to Bedford Hills Correctional Facility.  Prior to her sentence, she was held in the Pregnant Mother’s Unit on Rikers Island and, with the help of Riker’s Nursery Manager, applied to the Bedford Hills Nursery in the hopes that there would be a smooth transition into the unit once transferred.  Unfortunately, our client waited several months to hear if she had been approved to the nursery and was sent to the General Population Unit at Bedford Hills upon transfer.  Our client had a high risk pregnancy and needed a setting that would allow a stable and orderly environment. Being in General Population only increased her stress levels, putting her unborn child at greater risk. It is important for there to be a streamlined process for expecting mothers in our jails, awaiting transfer to a state facility, so there is no gap in care or appropriate housing.  This will contribute not only to the mother’s health, but to the safety of the child.

For Profit Providers

We urge an end to the use of private healthcare contractors in correctional facilities across New York. Following several jail deaths and other tragedies, New York City ended its contract with Corizon at the end of 2015 and incorporated Correctional Health Services into the city hospital network, NYC Health and Hospitals Corporation. It is too early to assess the full impact of the change; however, certain improvements are apparent. More generally, we believe there are several strong arguments for replacing private companies who are primarily concerned with their bottom line, with mission-driven and public health oriented providers.

The most obvious concern is that private companies will aim to cut costs by providing substandard care. After many years with Corizon in New York City jails, we believe this is a legitimate concern. Moreover, it is our experience that the contracting relationship with for-profit companies only exacerbates issues of dual loyalty. When healthcare providers feel beholden to corrections officials to retain their contracts, managers and line-staff alike are less willing to raise objections in the face of abuse or neglect.

Furthermore, utilizing private companies only deepens the challenge to recruit qualified and enthusiastic providers to work in correctional settings. It is unlikely that young healthcare professionals, eager to contribute to health justice, will be inspired join a private company with misaligned values. On the other hand, public health systems or mission-driven non-profits may attract more talent. As mass incarceration continues to garner the widespread attention across the country, it should be possible to recruit passionate healthcare providers to work in prisons in much the same way humanitarian organizations recruit doctors to treat patients in warzones and refugee camps.[11]

Solitary Confinement

To close, I would like to address the issue of solitary confinement; as this practice represents the coalescence of all the issues discussed already and is of grave concern to our office. As you probably already know, solitary confinement entails locking a person in a cell 23-24 hours per day, with one hour of recreation alone in what amounts to a slightly larger cell. The health impacts of solitary confinement are significant and well documented.

As Health Committee Chair Gottfried has said in a press release by the Campaign for Alternatives to Isolated Confinement, “Solitary confinement has catastrophic long-term effects on physical and mental health. No responsible medical professional could stand for this, and New York State shouldn’t either.”

Physiological conditions brought on by solitary confinement include gastrointestinal and urinary issues, deterioration of eyesight, lethargy, chronic exhaustion, headaches and heart palpitations among others.[12] Solitary is further shown to cause psychological trauma including severe depression, anxiety, insomnia, confusion, emotional deterioration, and fear of impending emotional breakdown.[13] In addition to hallucinations and delusions,[14] studies consistently find that prolonged solitary induces bouts of irrational anger and diminished impulse control, leading to violent outbursts;[15] invoking the very behavior it purports to manage.

Scientific and legal understandings of the harm of solitary confinement are not new. In fact, recognition that solitary confinement is inhumane and ineffective dates back to 1890, when the US Supreme Court found in In Re Medley that placement in solitary confinement caused extreme and long-term harm, writing that a “considerable number of the [people in solitary] fell, after even a short confinement, into a semi- fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.” In 1993, Correctional psychiatry expert Dr. Stuart Grassian identified what has been called SHU Syndrome, which includes the aforementioned symptoms.

A 2014 study revealed that people subjected to solitary confinement in New York City jails were 6.9 times more likely to engage in acts of self-harm than those who were not.[16] The suicide rate in DOCCS’ Special Housing Units (SHU) is nearly six times higher than that of the General Population (GP).[17] These tragic facts confirm what mental health experts have long concluded, namely that solitary is “inherently pathogenic; […] one of the most severe forms of punishment that can be inflicted on human beings short of killing them.”[18] In fact, one man who has been held in solitary confinement at Elmira prison for approximately thirty years, William Blake, described his long-term isolation as a “sentence worse than death.”

The United Nations Standard Minimum Rules for the Treatment of Prisoners, the “Mandela Rules,” expressly prohibit prolonged solitary confinement beyond 15 days as a form of torture or cruel inhuman or degrading treatment. Nevertheless, New York State prisons hold a disturbing number of people in solitary confinement, at a much higher rate than the national average with more subjected to the practice in county jails across the state.[19]

Contrary to clear direction from the National Commission on Correctional Health,[20] healthcare staff in prisons and jails are generally complicit in subjecting people to the harms of solitary confinement. Worse, healthcare staff are too often complicit in cases where solitary is clearly being used to cover up brutality. Once someone is placed in solitary confinement, the problems with access to care are exacerbated. Officers have even more control over access to sick call, and securing escorts from high security units to appointments is increasingly difficult.

Equally troubling, a recent report by Disability Rights New York uncovered rampant abuse of people with mental illness in Residential Mental Health Units (RMHU) at Attica State Prison. These units were intended to protect people with serious mental illness from the harms of solitary confinement under the SHU Exclusion Law. Instead people in RMHU were subjected to the same kind of punitive isolation without input from mental health staff, and in direct violation of the law. Horrifying accounts of verbal and physical abuse in the unit make the report even more disturbing.[21] This report reaffirms that New York must adopt comprehensive legislation prohibiting prolonged solitary confinement in any form.

BDS supports the efforts of New York State legislators and our grassroots partners in the Campaign for Alternatives to Isolated Confinement to enact the Humane Alternatives to Long Term (HALT) Solitary Confinement Act (S.4784-Parker/A.3080-Aubry) and bring an end to the torture of solitary confinement in New York State. The Corrections Commissioner in Colorado, Rick Raemisch, has already successfully implemented solitary reforms that mirror HALT.[22] These reforms include: A hard limit of 15 consecutive days in solitary confinement, with most serving far less; the use of therapy to address seriously problematic behavior; and a dramatic reduction in the overall use of solitary. In 2011, 1,500 people in Colorado prisons, or 7% of the prison population, were held in solitary; the state’s prison commissioner now reports that number has dropped to 18 people, or far less than 1%. These reforms mark a new era of compliance with the UN’s Nelson Mandela Rules for the Treatment of Prisoners. It is not only possible, it is absolutely and urgently necessary that we in New York follow suit.

For comparison, there are approximately 3,000 people in SHU in New York’s state prisons, at least hundreds more in keeplock (another form of solitary whose census DOCCS will not disclose), and likely hundreds more in local jails.

The New York Times conducted an investigation last year and found Black people to be far more likely to be subject to solitary confinement in New York State prisons, which, in addition to the aforementioned effects, exacerbates disparities in release determinations, as people in SHU are far less likely to be granted parole.[23]

We have ample client stories that illustrate the immense and often irreparable harm of solitary confinement, but by now you likely know what happened to Kalief Browder and others like him. This issue is beyond debate; action to pass HALT is needed now.

Conclusion

To improve healthcare in prisons and jails, it is necessary consider the broader context and circumstances that allow for substandard healthcare and outcomes to be the norm.

In a landmark article published in the New England Journal of Medicine, entitled #BlackLivesMatter – A Challenge to the Medical and Public Health Communities, Dr. Mary T. Bassett, M.D., M.P.H. writes that “the rate  of premature death is 50% higher among black men than among white men.” Dr. Bassett, who is Commissioner of the New York City Department of Health and Mental Hygiene, was citing her own department’s vital statistics. She also writes that “Black women in New York City are still more than 10 times as likely as white women to die in childbirth.” The article asks – and answers – this question: “Should health professionals be accountable not only for caring for individual black patients but also for fighting the racism — both institutional and interpersonal — that contributes to poor health in the first place? Should we work harder to ensure that black lives matter?”[24]

The article does not explicitly address healthcare in prisons and jails, or correctional healthcare providers, but the author cites as her inspiration another matter of the criminal legal system: police killings of unarmed Black people – with no legal sanctions – and the public uprisings that followed. Just as racism afflicts law enforcement in myriad ways in the community, it also underlies many of the healthcare deficiencies in our prisons and jails, which are disproportionately populated by people of color and poor people. DOCCS, the New York State Department of Health, and local jail and correctional health providers should view Dr. Bassett’s article as a wake-up call and reevaluate the ways in which race impacts the care that is needed, and that which is delivered, in their facilities. For example, Upstate prisons confine predominately people of color in the custody of predominately white security staff and this undoubtedly impacts access to care.

At a New York City Council hearing on violence in City jails last week, the new Commissioner of the Department of Correction, Cynthia Brann, described her agency’s new approach to people with mental illness, treating them as “patients” and not “inmates.” In fact, DOC supervisors regularly refer to our clients as packages, at best, or animals, expletives, or racial slurs.

Of course, the disparities and biases are not limited to matters of race, but intersect with other aspects of oppression, including sexual orientation and gender identity or expression. Our clients rely on transphobic correction officers to access medical appointments relating to hormone therapy. Likewise, medically-assisted treatment for drug addiction is stigmatized as somehow “less than” other forms of medical care, with different standards of access. Our state and city continue to treat non-conforming identities and substance use and abuse as pathological behaviors. On the contrary, the true sickness is our habitual use of inhumane and ineffective prisons and jails, which are governed through deprivation, humiliation, abuse and neglect.

In “A Plague of Prisons: The Epidemiology of Mass Incarceration in America,” Ernest Drucker reframes mass incarceration as an epidemic – one like any other widespread infectious disease – that exploded in the 1970’s through the 1990’s and onto today. Indeed, while it is critical to provide the highest quality of care to any and all people in state custody, it is also important to recognize that incarceration is both inherently pathogenic and, itself, a disease. That is why policymakers must also focus on decarceration – including by closing some of the most abusive facilities identified by the Correctional Association, such as Attica and Clinton, as well as Supermax facilities Upstate and Southport – and the promotion of quality community healthcare as you seek to reform and improve specific aspects of jail and prison healthcare.

BDS is immensely grateful to the Assembly for hosting this critical hearing and shining a spotlight this issue. Thank you for your time and consideration of our comments. We look forward to further discussing these and other issues that impact our clients. If you have any questions, please feel free to reach out to Jared Chausow, our Advocacy Specialist, at 718-254-0700 ext. 382 or jchausow@bds.org.

[1] The Independent Commission on New York City Criminal Justice and Incarceration Reform, or “Lippman Commission,” estimated the annual price of locking a person in a New York City jail to be $247,000. Mr. Feratovic was detained there for 208 days.

[2] See, e.g., Binswinger, I., Nowels, C., Corsi, K., Glanz, J., Long, J., Booth, R., Steiner, J. (2012). ‘Return to drug use and overdose after release from prison: a qualitative study of risk and protective factors’, Addiction Science & Clinical Practice 7(1), p. 3.

[3] Selling, D., Lee, D., Solimo, A., Venters, H. (2015), ‘A Road Not Taken: Substance Abuse Programming in the New York City Jail System’, in: Journal of Correctional Health Care 21(1) pp. 7-11

[4] German Lopez, There’s a Highly Successful Treatment for Opioid Addiction. but Stigma Is Holding It Back., Vox, Oct. 18, 2017 at , https://www.vox.com/science-and-health/2017/7/20/15937896/medication-assisted-treatment-methadone-buprenorphine-naltrexone.

[5] See Goodnough, A., and Zernike, K., ‘Seizing on opioid crisis, a drug maker lobbies hard for its product’, The New York Times, 11 June 2017.

[6] See Venters, H. (2016), ‘A three dimensional action plan to raise the quality of care in US correctional health and promote alternatives to incarceration’, in: American Journal of Public Health, 106(4), pp. 613-614

[7] Beckman, A., Bilinski, A., Boyko, R., Camp, G., Wall, A.T., Lim J., Wang, E., Bruce, R.D., Gonsalves, G. (2016), ‘New Hepatitis C drugs are very costly and unavailable to many state prisoners’, in: Health Affairs 35(10) pp. 1893-1901

[8] Id., p. 1899

[9] NYS Comptroller Thomas P. DiNapoli (2017), ‘New York State’s Aging Prison Population’, The Office of Budget & Policy Analysis 2017, [online] (available at: http://osc.state.ny.us/reports/aging-inmates.pdf [accessed 20 October 2017])

 

[10] Venters, 2016.

[11] Id.

[12] Shalev, S. (2008), A sourcebook on solitary confinement. (London: Manheim Centre for Criminology, London School of Economics), p. 15.

[13] Haney, C. (2003) ‘Mental health issues in long-term solitary and “Supermax” confinement’, in: Crime & Delinquency, 49(1) pp. 133-136.

[14] Id.; Grassian, S. (1983), ‘Psychopathological effects of solitary confinement’, in: American Journal of Psychiatry, 140(11), p. 1452.

[15] Haney, 2003, p. 133; Grassian, 1983 p. 1453; Gilligan, J., Lee, B., (2013), ‘Report to the [New York City] Board of Corrections’, [online] (Available at http://solitarywatch.com/wp-content/uploads/2013/11/Gilligan-Report.-Final.pdf [accessed 11 August 2017]), p. 6.

[16] Venters, H., Kaba, F., Lewis, A., Glowa-Kollisch, S., Hadler, J., Lee, D., Alper, H., Selling, D., MacDonald, R., Solimo, A., Parsons, A. (2014), ‘Solitary confinement and risk of self-harm among jail inmates’, in: American Journal of Public Health, 104(3), p. 445.

[17] Statistics provided by DOCCS

[18] Gilligan and Lee, 2013, p. 6.

[19] The Liman Program, Yale Law School & of State Corr. Administrators, Time-In-Cell: The ASCA-Liman 2014 National Survey of Administrative Segregation in Prison (2015), https://law.yale.edu/system/files/area/center/liman/document/asca-liman_administrativesegregationreport.pdf.

[20] See United States National Commission on Correctional Health Care (2016), Position Statement: Solitary Confinement (Isolation), [online] (available at: http://www.ncchc.org/solitary-confinement [accessed 25 October 2017]).

[21] Disability Rights New York (2017), ‘Report and Recommendations Concerning Attica Correctional Facility’s Residential Mental Health Unit’, [online] (available at: http://new.drny.org/docs/reports/attica-rmhu-report-9-12-2017.pdf [accessed 24 October 2017])

[22] Raemisch, R., ‘Why we ended long term solitary confinement in Colorado’, The New York Times, 12 October 2017.

[23] Schwirtz, M., Winerip, M., and Gebeloff, R., ‘The Scourge of Racial Bias in New York State’s Prisons’, The New York Times, 3 December 2016.

[24] Mary T. Bassett, M.D., M.P.H., #BlackLivesMatter — a Challenge to the Medical and Public Health Communities, 2015 New Eng. J. Med. (2015), http://www.nejm.org/doi/full/10.1056/NEJMp1500529#t=article.

BDS TESTIFIES BEFORE THE NYC COUNCIL COMMITTEE ON JUVENILE JUSTICE HEARING ON REENTRY PROGRAMS FOR FORMERLY INCARCERATED YOUTH

TESTIMONY OF:

Rebecca Kinsella– Social Worker, Brooklyn Adolescent Representation Team

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Juvenile Justice

Hearing on Reentry Programs for Formerly Incarcerated Youth

October 26, 2017

Introduction

My name is Rebecca Kinsella and I am a youth social worker for Brooklyn Defender Services (BDS). BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 35,000 clients in Brooklyn every year. I thank the City Council Committee on Juvenile Justice and Chair Fernando Cabrera for the opportunity to testify today about the many ways that the City Council can augment, improve, and support reentry programs for formerly incarcerated youth.

Brooklyn Defender Services’ has a specialized adolescent unit, called the Brooklyn Adolescent Representation Team, or BART. Our team represents over two thousand adolescents ages 13-21 annually. My caseload includes adolescents detained at Crossroads and Horizons, ACS detention facilities in Brooklyn and the Bronx, as well as young people detained on Rikers Island.

Background

Incarceration is particularly harmful for children and adolescents and should be avoided at all costs.[1] That being said, in our experience, young people who are incarcerated in local detention facilities are better able to access reentry programs and support than those who are sent upstate.

Recently, Marcus, an 18-year-old client of mine, was released from Rikers Island after serving a sentence of one year. Marcus graduated high school before being sentenced, and did not want his time in jail to keep him from his aspirations of higher education. We knew, based on ample experience, that it was crucial for Marcus to apply to colleges while at Rikers to ensure that he would re-engage education in a timely manner. With our ongoing advocacy and support of Marcus during his incarceration, he left Rikers and entered into college courses.

Marcus’s case is an exception. Joaquin, a young client of mine was released from a juvenile detention facility upstate, put on a train to the City and told that his mom would be waiting for him on the other side. With no critical supports put in place by the upstate facility to help him reenter his community upon his return, Joaquin was shortly rearrested just two months later. Having been disengaged from his family for almost 2 years, Joaquin and his family struggled with re-unification and the necessary restructuring of his life for a successful re-entry. With in-home family counseling and a more structured educational and vocational plan, I believe that Joaquin could have avoided the behaviors and circumstances that ultimately led to his arrest.

Incarcerated youth do better when they can remain close to their homes and communities, where they have better access to familial support and programs to help them acclimate to normal life. According to the NYS Office of Children and Family Services website:

“Keeping youths closer to their families is a core principle of New York State’s juvenile justice program. The importance of locating youth in placement close to where they are from cannot be understated.  Not only does this allow families to more easily visit, but it gives them the ability to participate in the youth’s rehabilitation program which increases the likelihood of success for youth once they are released.”[2]

While visiting Rikers is consistently demeaning and dehumanizing for our clients’ families, and requires long hours of travel by public transit, visiting at an upstate facility is often impossible for them. It is no surprise, then, that youth suffer greater reentry difficulties when they return from upstate facilities when their connections with their families and communities are more likely to have been strained or severed.

There is much the City can do to improve reentry services for all youth, including youth who are never sent upstate.  First, the Council should advocate with city agencies and actors in the court system, including prosecutors and judges for alternative to incarceration programs to always be prioritized in cases involving adolescents. In cases where courts require detention, the City should support efforts to keep city youth close to their communities. Finally, it is crucial that formerly incarcerated youth returning to their communities are met with free and accessible resources to help them return to their families, schools, and neighborhoods.

Recommendations

  1. The City should improve access and increase funding to community-based programs for formerly incarcerated youth.

BDS has great relationships with several programs that provide many of our adolescent clients with reentry services.  For example, Exalt, the Brownsville Community Justice Center, Families Rising, The Door, and Fortune Society all have proven track records of working diligently with our clients to help them achieve their own personal goals.

BDS urges the Council to provide more funding for any such organization that bridges the gaps for kids returning home to their communities and wants to increase capacity. Such programs are crucial to meeting young peoples’ needs and providing services to this vulnerable population.

In our experience, youth mentoring programs are extremely effective. These programs involve mentoring of court-involved youth by individuals who themselves have been through the system.  It is critical that these programs be properly funded, including adequate compensation for the crucial advocacy mentors provide.[3]

BDS has also found great success for our clients who have enrolled in programs that engage teenagers along with their families, like Families Rising:

“Families Rising is a collaborative initiative between the New York Center for Juvenile Justice and the New York Foundling to provide evidence-based therapeutic services to teenagers who come into contact with New York’s adult criminal courts. These services provide families and caregivers with essential rehabilitative tools to comprehensively address the complex behavioral and mental health issues that may have initially led to the child’s involvement with the criminal justice system.”[4]

Though there are many great resources for our clients and other formerly incarcerated youth, there are many holes in services that are essential for our adolescent clients.

Many programs have eligibility restrictions that exclude some clients who need their services the most. For example, my aforementioned client, Joaquin, was found ineligible for crucial therapeutic services when he was first released from jail because he had no pending case. With expanded eligibility and funding, programs could better serve recently incarcerated youth at this most critical point and keep them from re-entering the criminal legal system.

For example, many incarcerated youth struggle with pursuing their education following release, particularly in re-enrollment and adjusting into the school environment. Some formerly incarcerated youth have aspirations of college but need assistance in determining their eligibility and applying for financial aid. The Council could provide funding to groups that do educational advocacy, including public defender offices.

In addition to programs serving youth’s educational needs, we see significant gaps in vocational services serving adolescents. The youth with whom we work are motivated to work and contribute monetarily to their homes. Unfortunately, very few have the experience necessary to find and secure stable work. Investment in vocational programs that offer adolescents paid internships and job readiness skills not only prepare youth for the future, but provide safe after-school activities in the community.

Finally, with the diversion of more youth aged 16-17 accused of misdemeanors to Family Court following the passage of Raise the Age, the City should ensure that successful programs that are offered in adult criminal court are also made available in family court. For example, after New York State failed to raise the age of criminal responsibility in prior years, New York City court administrators began to provide innovative alternative-to-incarceration programming for youth in criminal court. In Brooklyn, Brooklyn Justice Initiatives connects young people in our adolescent courts with programming through groups like Young New Yorkers, an art-based diversion and leadership program. We hope that innovative programming like this one will continue to be available to Brooklyn youth in family court.

  1. The City should expand funding for adolescent social work services for public defender offices.

Adolescent social workers in public defender offices go beyond the traditional role of social work at public defense offices, often maintaining contact with our clients during and after their incarceration. Our social work fills in the gaps that are not met by other service providers. By keeping in touch with our clients from the point of arraignment through the end of their incarceration and sometimes beyond, we have a better chance of ensuring they feel they have the support they need when they return. BDS’ adolescent social workers help our clients re-enroll in school, apply for college, find work, secure housing, and connect with services they need following their release. Increased capacity for specialized adolescent social work in defender offices could prevent more youth from slipping through the cracks.

Michael, a young client of mine, was awaiting disposition of his case while detained on Rikers Island. Due to my role as his social worker, I was able to identify an appropriate alternative to incarceration program that a judge ultimately found suitable to serve as a resolution to Michael’s case. Following Michael’s release, I was able to assist him in locating an appropriate education setting as well as connecting him to necessary mental health treatment that he was not receiving while incarcerated. Without this support, it is unlikely Michael would have made a smooth transition back to the community. Michael successfully completed his alternative to incarceration program after more than one year of participation, resulting in no criminal record and having acquired important skills to accelerate his growth and development.

  1. The City must provide more safe shelter space and respite centers for homeless and formerly incarcerated youth in their communities.

Key to successful reentry for formerly incarcerated youth is having a safe space to return to in their communities.

Public defenders in Brooklyn serve around 500 homeless 16- and 17-year-olds every year, the vast majority of whom are not being served by Runaway Homeless Youth (RHY) service providers because of the lack of beds in Brooklyn. About half of the youth are made homeless by the criminal legal system when the court issues an order of protection against the youth for 90 days after a criminal allegation involving a domestic disturbance, making it illegal for the young person to return home.

BDS submitted testimony in support of Intro. 1700-2017, Intro. 1699-2017, Intro. 1705-2017, and Intro. 1706-2017, which will expand shelter access, expand the length of stay, streamline, and raise the age for all runway and homeless youth.[5] BDS reaffirms its support for the passage of these bills, and urges the council to improve access to housing for homeless and formerly incarcerated youth by expanding the number of RHY beds in Brooklyn, the Bronx and other boroughs outside Manhattan.

We thank the City Council for your consideration of this important issue.

Questions?

If you have any questions, please feel free to reach out to Andrea Nieves, BDS Policy Team, 718-254-0700 ext. 387 or anieves@bds.org.

[1] Barry Holman & Jason Ziedenberg, The Dangers of Detention: The Impact of Incarcerating Youth in Detention and Other Secure Facilities, Justice Policy Institute (2006).

[2] NYS Office of Children and Family Services, Close to Home Initiative, available at http://ocfs.ny.gov/main/rehab/close_to_home/.

[3] See Urban Matters, “Life Lessons: The Difference Credible Messengers Make” http://www.centernyc.org/itm-credible-messengers.

[4] New York Center for Juvenile Justice, Families Rising, http://www.nycjj.org/families-rising/.

[5] A copy of our testimony is available on our website at http://bds.org/wp-content/uploads/2017.09.28-BDS-testimony-on-RHY-bills-FINAL.pdf.

BDS TESTIFIES BEFORE THE NYC COUNCIL ON VIOLENCE IN CITY JAILS

TESTIMONY OF:

Kelsey DeAvila – Jail Services Social Worker

BROOKLYN DEFENDER SERVICES

Presented before

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

Oversight Hearing on Violence in City Jails

October 25, 2017

My name is Kelsey DeAvila; I am the Jail Services Social Worker at Brooklyn Defender Services. I would like to thank the Committee on Fire and Criminal Justice Services for convening this hearing on violence in New York City jails. BDS provides comprehensive public defense services to more than 30,000 people each year, thousands of whom are incarcerated in the city jail system either while fighting their cases or upon conviction of a Misdemeanor and sentenced to a year or less. BDS’ Jail Services Division provides supportive services and direct advocacy on behalf of our incarcerated clients.  This testimony draws on the experiences of our clients and staff in the jails. We also call the Committee’s attention to the Fourth Quarterly Report (“Report”) recently filed by the Independent Monitor in the Nunez case regarding the Department of Corrections’ (“DOC” or “Department”) efforts to reduce violence under the settlement reached in that case.

In any discussion about improving jail conditions, it is crucial to first acknowledge the vast number of people who simply should not be incarcerated in the first place. For example, many thousands of New Yorkers are needlessly detained each year because they are unable to immediately pay bail, resulting in short jail stays with devastating consequences. Individuals are separated from families and communities; risk loss of employment, benefits and housing; suffer interruptions in medical care; and endure chaotic and often violent stays in custody. Thousands more are detained for longer stretches because bail is set, either intentionally or neglectfully, in an amount and form their families could never afford. Meanwhile, high turnover in the jail population puts a strain on staff, housing and healthcare resources in the jails. Broken Windows policing and the widely-discredited Drug War needlessly sweep masses of people into the criminal legal system; of the 268,775 arrests in New York in 2016, more than 122,000 stemmed from allegations relating to fare evasion, drugs, petit larceny (often baby food, laundry detergent and other essentials), trespass (often related to shelter-seeking), graffiti, or sex work.  In addition to mitigating harm to individuals, ending unnecessary arrests and discriminatory bail practices that discriminate against poor New Yorkers will contribute to reducing violence and easing other management challenges.

Nevertheless, addressing endemic violence in New York City jails will take more than reducing population turnover and crowding. More broadly, the Department and city officials must act urgently to address the culture of violence which remains deeply entrenched among uniformed jail staff at all levels.

The Culture of Brutality Persists in NYC Jails

The Nunez Report details the same disturbing behavior routinely reported by our clients: Officers who “relish confrontation,” stoke conflict between incarcerated people, and resort to violence as a first response. Despite the Department’s efforts to train staff in de-escalation techniques, staff are reported to utilize a one-size-fits-all approach to force, unleashing violence far out of proportion to what is necessary to contain a situation. Incidents of real or perceived non-compliance which are minor or already under control result in individuals being thrown to the ground.

Claims that the behavior of incarcerated people justifies current rates of violent force are easily belied by the data.  According to the Nunez Report, during the monitoring period, uses of force to prevent harm declined by 78% and those in response to fights dropped by 18%.  Meanwhile, uses of force in response to “resisting restraints” doubled, and those responding to “refusal to comply” were up 35%.  Altogether, the Report finds that nearly a quarter of use of force incidents were avoidable – a third of those arising from unprofessional staff behavior.   In sum, rather than exercising patience, restraint and common sense, uniformed staff too often fuel conflict through belittling name-calling and provocation, then jump at the chance to use violence.

We are deeply troubled by frequent and persistent reports that staff use pepper spray indiscriminately and without provocation. BDS clients have reported several incidents which illuminate the problem.  In one instance, an officer flew into a rage during a verbal disagreement with our young client. Despite no physical threat to the officer or others, she took out her MK9 pepper spray. When our client fled, the officer unleashed the pepper spray as she chased him through the mess hall, dousing everyone else in the area. The excessive pepper spray triggered a severe asthma attack which left our client coughing up blood. He was taken to intake where he waited several hours before receiving medical care. The incident likely sent many bystanders to the clinic as well.

This story is but one among many.  I and other BDS staff members frequently take reports about entire housing units enshrouded in a fog of chemical agents. Staff’s lack of restraint with respect to the use of chemical agents is galling.  Just last week I witnessed officers on the bus jeering as their colleague regaled them with stories of emptying canisters of pepper spray on people – including one in which he “made a grown man cry.”

More challenging to quantify than staff use of force, but nevertheless disturbing, is that our clients frequently report that staff are complicit in, encourage, and facilitate gang violence to do their bidding. In one recent incident, an officer engaged our client in a verbal argument, ultimately threatening to place him in a unit housing rival gang members.  Making good on this threat, our client was later moved to a cell in the jail’s intake where he encountered approximately seven members of a rival gang. As planned, he was attacked and suffered two deep cuts on his face, requiring several stitches.

People in Rikers Are Subject to Daily Humiliations and Deprivation

Beyond the most serious cases of brutality, stemming the tide of violence in city jails requires addressing the myriad humiliations people in city jails endure on a daily basis. These structural and social cruelties contribute to an environment rife with tension.  For example, most young people are limited to visits devoid of meaningful physical contact – separated by a wide table and plexiglass barrier. Ostensibly a security measure, the enforced separation of young people from their mothers’ loving touch breeds deep resentment. To make matters worse, conversations during visits are often dominated by the humiliating ordeal visitors endure to get through “security procedures” prior to seeing their loved ones.

Other everyday cruelties include officers tightening handcuffs to the point that hands lose their feeling, then twisting the wrists to cause shooting pain while uttering threats of further violence. At GMDC, young people describe an area in intake known as the “forget about me cells” where people are left and ignored for hours without food or water, as a form of retaliation, punishment, or simple negligence. In isolation units and similar high-security units, people rely on officers for their most basic needs. When officers deprive people of toilet paper, food, showers, outdoor recreation and other necessities, people become desperate, and in their desperation, may act out – thereby deepening the cycle of violence and isolation.  People join gangs for survival and access to basic amenities. The list of daily humiliations is endless.

All agree that reducing violence among incarcerated people is a worthy aim. As a first step, it is paramount to address the ways staff practices fuel the broader culture of violence in city jails.  So long as humiliation remains a celebrated tactic and gangs are manipulated to control or intimidate, violence will likely remain unabated in New York City jails. Unfortunately, the Department’s investigation and promotion practices only reinforce the conclusion that uniformed staff are permitted to brutalize the people in their care with impunity.

Internal Investigators Help Cover-Up of Abuse

At the facility-level, supervisors routinely ignore evidence of collusion and decline to interview victims or witnesses of uses of force, opting instead to rubber-stamp the statements of officers they are tasked to oversee.  Inquiries by the Department’s Investigation Division also exhibit substantial deficiencies, and are plagued by severe delays.

Interviews with victims or witnesses of use of force regularly take place within earshot of other people and staff.  Uniformed staff are known to retaliate against people who report misconduct, both violently and through more subtle means, for example, denying access to commissary or visits. Fearing reprisals, many of our clients are unwilling to give full accounts of an incident without confidentiality.  When victims and witnesses choose to make statements despite the risk of retaliation, their accounts are too often discredited without justification.

The apparent consequence is an investigations process that fails to uncover staff misconduct or serves to justify it, rather than enforce accountability. As noted by the Nunez Monitor, 92% of investigations between January and June 2017 found no staff wrong-doing, despite clear objective evidence of much higher rates of unjustified force.  In rare cases that an investigation finds staff misconduct, discipline is delayed and largely ineffectual, except in certain high-profile cases.

DOC Supervisors Model Bad Behavior

A major shift in Department culture can only be engendered when supervisors and management respect the basic human dignity of the people in their care, demonstrate a baseline of professionalism, and ensure accountability among the rank and file.  At present, this is sadly far from the case. This challenge is of the Department’s own making. The long-standing and consistent failure to meaningfully investigate staff misconduct and bring those responsible to account has allowed many of the individuals responsible for that misconduct to advance into leadership roles.

BDS staff spend considerable time in the jails and are dismayed by the demeaning language and dehumanizing attitudes routinely on display among supervisors.  As a matter of course, people in department custody are almost never referred to as “people” – at best they are “packages” or “bodies,” frequently they are called “animals” and too often they are referred to only by expletives or racial epithets. Rather than setting an example of professionalism, supervisors routinely exchange gossip and insults about incarcerated people. During a jail tour last year, a BDS staff member witnessed a supervisor laughing enthusiastically as their subordinate recalled threatening to empty a canister of pepper spray into the open mouth of a person who was lying prone on the floor, handcuffed.

It is not uncommon to hear supervisors encourage cruelty, disrespect and violence toward incarcerated people. More disturbing, however, is the frequency with which supervisors themselves are responsible for unnecessarily escalating conflicts and encouraging their subordinates to resort to violent force quickly and excessively. Once an incident is underway, supervisors sometimes participate in the very acts of brutality they should intervene to prevent.

The Nunez Monitor documents one such incident in which a Deputy Warden ordered officers to use military-grade pepper spray on an individual who was restrained, facing a wall and not resisting.   Such misconduct on the part of supervisors sends a clear message to line staff that violence against incarcerated people is permissible and encouraged.

We urge the Department and city officials to closely review promotions, demand a baseline of professionalism and competence from supervisors, and strictly enforce accountability.  With even a semblance of adequate supervision, we believe some of the most egregious incidents could be avoided.  In the long-term, it is imperative that management and supervisory staff embrace and demonstrate respect for the dignity of the people in their custody. Similarly, the city must hold Department leadership accountable for policies and practices that continue to violate the human rights of people in New York City jails.

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

BDS TESTIFIES BEFORE THE NYC COUNCIL COMMITTEE ON TECHNOLOGY ON ALGORITHM TRANSPARENCY.

TESTIMONY OF:

Yung-Mi Lee

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Technology

Hearing on Intro 1696

October 16, 2017

My name is Yung-Mi Lee. I am a Supervising Attorney in the Criminal Defense Practice at Brooklyn Defender Services (BDS). BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 30,000 clients in Brooklyn every year. I thank the New York City Council Committee on Technology, and in particular Chair James Vacca, for holding this hearing today on Int. 1696, which would establish basic transparency in New York City’s automated processing of data for the purposes of targeting services, imposing penalties, or policing.

BDS SUPPORTS Int. 1696

The arrival of the digital age in the criminal legal system has been heralded by technology entrepreneurs, law enforcement leaders, and some academics, but it presents a series of new threats to the liberty and well-being of our clients that warrant deeper investigation. However, many of these technological advances are deemed proprietary or otherwise kept secret by police, making true accountability all but impossible. At worst, such tools provide a veneer of color- and class-blind objectivity while exacerbating the racial and economic discrimination and other inequalities in law enforcement practices and criminal and civil penalties. From law enforcement’s use of facial recognition software that disproportionately misidentifies Black people to so-called gang databases and designations that indefinitely flag people for harsh surveillance or worse, based on who they stand beside in a Facebook photo, apparently with no way to be removed, there are numerous examples of technology reinforcing, rather than mitigating or eliminating, biases that afflict our society as a whole. Two key examples that I will focus on are the rise of pre-trial Risk Assessment Instruments (RAI’s) and so-called predictive policing. Int. 1696 will shine a necessary spotlight on these and other areas of the modern surveillance and punishment system.
RAI’s and Pre-Trial Detention

Across the United States, nearly a half a million people are detained pre-trial—legally presumed innocent but locked in a cage. The majority of these individuals are legally eligible for release on bail, but detained because courts set bail in an amount and form they cannot afford. Financial conditions of release are, on their face, discriminatory and amplify broader inequalities in society. While attempts at reform have come in cycles for the last several decades, the most onerous forms of money bail remain in use in most of the country. Meanwhile, multinational surety companies have profited from this mass misery through the financing of the bail bonds industry, which is banned in every country except the United States and the Philippines. Because the courts generally only accept bail in cash or commercial bail bond—as opposed to, for example, an unsecured bond—bail bond agents are often a family’s only hope for getting a loved one out of jail. These agents can charge exorbitant unrefundable fees, demand unlimited collateral and impose onerous conditions, all with no meaningful oversight by local, state, or federal regulators. The industry siphons billions of dollars from marginalized communities across the country while leaving the majority of people with bail set to suffer in jail.

Understandably, there is a demand for something—anything—different, but policymakers must be deliberate about reform. Specifically, the goal of bail reform must be to reduce pre-trial detention and eliminate racial and other disparities. The zeitgeist in bail reform is the promotion of RAI’s to drive decisions about pre-trial detention, but it is not clear this approach will help, rather than harm. RAIs purport to objectively and accurately predict one outcome or another. In reality, RAIs function as a proxy for a series of subjective, human decisions. People decide whether to attempt to measure risk of flight, risk of future criminality, risk of re-arrest, or some combination of the three. People decide what level of offense to attempt to predict, i.e. any offense or a serious offense. People decide which factors to consider in the assessment and how much weight to attribute to each factor in the overall risk score. People then decide what qualitative conclusions to draw from these risk scores, establishing benchmarks for low, medium, and high risks. Finally, judges decide what weight to give the risk assessment when issuing decisions regarding release, supervision, and predictive detention.

In practice, RAIs typically use a series of highly discriminatory metrics that provide little or no utility to seeing the future. Common factors include homelessness, employment status, school enrollment, age, family connections, prior convictions, and prior incarceration. RAI proprietors argue their tools are not discriminatory because they do not consider demographic information, but this analysis ignores the pre-existing sharp disparities in the aforementioned factors. A landmark ProPublica investigation of RAIs found one commonly used tool was more likely to falsely identify Black people as likely to commit a crime. The investigation also found this RAI to be only “somewhat more accurate than a coin flip” in determining a risk of re-offense, and “remarkably unreliable” in predicting violent crime.

RAIs come with a unique threat to liberty in New York State: a concurrent push to allow judges to make assumptions about dangerousness, using RAIs, in pre-trial detention decisions. Under current state law, judges may only consider a risk of flight, with certain exceptions. While RAIs can be used exclusively to measure this risk, many high-level policymakers, including Mayor de Blasio, are urging changes to the bail statute so that dangerousness may be assessed and considered as well. As such, the first order of business is to stop this rush toward dystopic preventive detention. There is ample evidence that even a few days in jail can be criminogenic; preventive detention is a counterproductive tool of public safety. Moreover, there is no guarantee that adding dangerousness to the statute would significantly reduce jail populations. Results across the country are mixed, and courts in New York City already have comparatively high rates of releasing people on their own recognizance.

In short, RAI’s, by their nature, bypass an individual’s right to due process and the individualized, case by case, analyses required of prosecutors, judges and defense attorneys.

The transparency in RAIs afforded by this legislation is critical for policymakers and the public to analyze their efficacy and fairness. Many such assessments are currently proprietary. Currently, the Mayor’s Office of Criminal Justice Services is engaged in a good-faith effort to improve its pre-trial RAI, and it is critical that it be fully transparent. Transparency requires the release of any and all data used to formulate any RAI.  Moreover, the public should have an opportunity to recommend changes before it is implemented.

Importantly, pre-trial detention may not meet the legal definition of a penalty. This legislation should be amended to explicitly include algorithms used to determine custodial detention, incarceration, civil commitment, and supervised release.

There are many better ways to incentivize pre-trial freedom and discourage pre-trial detention, including through expanded use of the unsecured appearance bonds that are already permitted by state. These alternatives must be pursued aggressively. BDS has testified before the Council about bail reform in the past and would be happy to further discuss the issue.

Predictive Policing

Predictive Policing uses algorithms and computer modeling to attempt to predict and prevent crime, including through targeted allocations of resources. In its grudging and incomplete responses to FOIL requests from the Brennan Center for Justice, the NYPD has acknowledge the use of a predictive policing system that was developed in-house as well as a prior purchase of Palantir, a commercial predictive policing product. With both systems, NYPD has stonewalled requests for transparency, citing either trade secrets or vague security concerns. There is a high likelihood that these systems disproportionately impact low-income people of color and other heavily policed groups, but refusing to disclose, for example, the information inputs and the possible or actual outputs, serves to shield the NYPD from scrutiny. Likewise, the public is prevented from evaluating the system’s efficacy and cost-effectiveness. Perhaps resources allocated to identifying a particular housing development and/or certain of its residents as likely sources of crime would be better spent identifying and fulfilling community needs like jobs, affordable and accessible public transit, and quality community-based mental health services.

Int. 1696 will open a window in predictive policing operations and allow us to better evaluate its safeguards against civil rights violations, utility and appropriateness.

The Limits of Transparency

BDS strongly supports the Council’s years-long efforts to establish more transparency in the criminal legal system, but we also recognize the limits of this approach. Ultimately, we as a democratic society must retain the ability to direct our law enforcement, not the reverse. Transparency is an important tool of community control, but it should not be mistaken for the endgame for policymakers. As public defenders, it is impossible for us to zealously protect our clients’ Constitutional rights without knowing, for example, whether the NYPD officers are parked outside their homes in an x-ray van and how they determined their targets; disclosure of this information is therefore critical but the Council should also explore outright prohibitions on certain domestic spying operations. Likewise, the Council or Comptroller could exert authority to block the purchase of improper and invasive technology used for profiling. Ultimately, the Council must regard law enforcement secrecy as a political tool, in addition to a public safety tool. Without transparency, those of us who urge a shift away from punishment and control toward community support are at an information disadvantage, but we know more than enough from lawsuits and police and civilian recordings to rein in the discriminatory and abusive practices of law enforcement and reinvest in communities.

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

BDS TESTIFIES BEFORE THE NYC COUNCIL COMMITTEE ON PUBLIC SAFETY

TESTIMONY OF:

Jared Chausow – Advocacy Specialist

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Public Safety

Hearing on Intro 1611, Intro 1636, Intro 1664, Intro 1712, Resolution 1660, two Preconsidered Intros and two Preconsidered Resolutions

October 16, 2017

My name is Jared Chausow. I am the Advocacy Specialist at Brooklyn Defender Services (BDS). BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 30,000 clients in Brooklyn every year. I thank the New York City Council Committee on Public Safety, and in particular Chair Vanessa Gibson, for holding this hearing today on legislation and resolutions that relate to index crimes reporting (Int. 1611), Record of Arrest and Prosecution (RAP) sheet errors (Int. 1636), fare evasion arrests and civil summonses (Int. 1664), criminal case dispositions (Int. 1712), outstanding criminal warrants (T2017-6381), so-called gravity knives (Res. 1660), gun violence (T2017-6705) and gun regulation (T2017-6706).

BDS supports Int. 1636, Int. 1664, Int. 1712, T2017-6381, and Res. 1660 and offers recommendations to strengthen some of them below. We take no position on Int. 1611, T2017-6705, T2017-6704, and T2017-6706.

BDS SUPPORTS: Int. 1636 (Johnson) – Requiring the Mayor’s Office of Criminal Justice (MOCJ) to address erroneous criminal records and T2017-6381 – Requiring MOCJ to address outstanding criminal warrants.

According to a 2014 report by the Legal Action Center, The Problem of RAP Sheet Errors, at least 30% of RAP sheets contain at least one error and some contain as many as ten or more. This finding aligns with our observations. In 2015, our Re-Entry Unit launched a Criminal and Police Record Accuracy Project (CP-RAP) to clean-up RAP sheets upon referral. The most common errors we encounter include:

  • missing information about the disposition of cases, or voided or “hanging” arrests, which gives the mistaken impression that they are still open;
  • mistaken information about bench warrants, which can lead to unnecessary arrests and increased risk of having bail set;
  • information about old non-criminal violations and dismissals that should have been—but were not—sealed according to New York State law;
  • and various errors made when different City and State agencies fail to convey information accurately, which can lead to wrongful detention and even arrest by Immigration and Customs Enforcement.

Decades of neglect of RAP sheet accuracy is well known in the criminal justice system. One significant factor in the frequency of these errors is the immense size and scope of the record keeping required. According to the Legal Action Center report, New York State maintains RAP sheets for 7.1 million people, with information inputs from dozens of bureaucracies, each of which may use proprietary databases or even paper files. This information is reported to federal agencies as well which further exacerbates the extent of the impact of these data points. This is a massive undertaking, especially given the high stakes of the records, including lifelong job and housing discrimination, deportation, false arrest and imprisonment, and more. Until very recently, there were approximately 1.5 million open arrest warrants in New York City alone, though local District Attorneys agreed to wipe away nearly 700,000 of these thanks to the advocacy and leadership of Speaker Mark-Viverito. The agencies responsible for entering and maintaining arrest and case disposition data have grossly inadequate systems and no real-time quality control measures in place. But mostly, they do not have the will to fix the problems. Despite numerous efforts to work with DCJS, the agency responsible for NYSID sheets, advocates have been consistently rebuffed. Given the extensive damage that befalls people because of these errors, it is time for real change in this process.

Aggravating the problem of RAP sheet errors, the state court system sells many or most criminal records to countless loosely-regulated for-profit online vendors that provide “one-stop shopping” to employers, landlords and others. Each error or omission is therefore amplified on the internet. The non-governmental online vendors typically offer so-called “background checks” at a lower price than DCJS or OCA—e.g., approximately $33 at First Advantage compared to $62 at DCJS’ contractor MorphoTrust USA—and provide additional information like global records searches. Therefore, these commercial database searches may be the preferred option for most users. Representatives of DCJS have indicated to us that they do not specifically transmit the corrections we make on behalf our clients through CP-RAP to these private companies, instead arguing it is the companies’ obligation to make sure their records are accurate. In other words, nobody is ensuring accuracy and accountability in the vast majority of publicly accessible criminal records.

Based on our experience, it is likely that more errors are recorded, day by day, than fixed. Moreover, the problem of RAP sheet inaccuracies and incomplete entries had already been recognized as a concern by 1991, when the State enacted legislation to automatically seal eligible cases going forward to prevent paperwork lapses, and yet the errors continue to occur. I understand OCA is developing a new Uniform Case Management System that should automatically seal eligible cases that must remain open for a period, such as those that result in an Adjournment in Contemplation of Dismissal. In the meantime, court actors should devise a system to effectively and efficiently confirm sealing where appropriate. It is important to note that the federal database will not be automatically sealed. It is our understanding that thousands of cases that were resolved with a Disorderly Conduct plea in New York State are in a queue at the FBI, waiting to be manually sealed.

Int. 1636 would require MOCJ to serve as a clearinghouse for RAP sheet corrections, analyze the root causes of the errors, and propose solutions, with an annual report on actions taken pursuant to this law. T2017-6381 would require MOCJ to ensure NYPD warrants are consistent with OCA records, establish a means for people to rectify inaccurate warrants, and facilitate the reduction in outstanding criminal warrants. Together, these bills would finally place one agency in charge of wrangling many others to help protect our clients. We support their passage and enactment and thank lead sponsors Councilmember Johnson and Speaker Mark-Viverito.

Additional recommendations:

  • Every person should have free and easy access to their own criminal records, without having to receive an indigence waiver, so they can check for errors and advocate for themselves as needed. A City agency that has access to these records—other than law enforcement—should provide them free of charge.
  • The NYPD should be required to include a sunset clause with any fingerprints it sends to DCJS to prevent hanging and voided arrests from appearing on RAP sheets long-term; if the arrest does not lead to a court case within a given time period (e.g. 30 days), it should be purged.
  • The NYPD should be required to turn over documents needed to aid in clearing up old hanging or voided arrests within three days. Under the Fair Chance Act, employers must give applicants three days to respond to a finding related to a criminal history, and applicants must have a legitimate opportunity to prove that, for example, their records contain erroneous arrest information. Local District Attorneys should likewise be urged to turn over documents related to cases they declined to prosecute within three days.
  • The Council should call on the State to cease its sale of criminal records to third parties at least until it can guarantee that all of the information it provides is accurate and that all information that should be, or may later become, sealed is not disclosed.
  • The Council should call on DCJS to expeditiously comb through its records and remove all information that, as reported in the records, should be sealed pursuant to New York State law. People should not have to trek to courthouses and wait in line for a clerk to obtain a Certificate of Disposition that demonstrates exactly what is already in DCJS’ own records, which is the current protocol.
  • As MOCJ publicizes its role in correcting RAP sheets, it should also publicize new opportunities to seal certain old criminal convictions, pursuant to the State’s new Raise the Age law. BDS is currently promoting its own services to those seeking assistance with sealing through our community office, but we assume that most eligible New Yorkers are unaware of this new law.

BDS SUPPORTS: Int. 1664 (Lancman) – Requiring the NYPD to report on the number of arrests and summonses returnable to the Transit Adjudication Bureau for subway fare evasion.

This legislation will require reporting on fare evasion arrest locations and fare evasion summonses, both of which will aid policymakers and the public in evaluating NYPD practices. Ultimately, BDS and many others believe New York City should end the policing of poverty and invest the savings in making transit more affordable to low-income residents. We support the Fair Fares plan backed by the Riders Alliance, the Community Service Society, a majority of the Council, and many others.

BDS SUPPORTS: Int. 1712 (Lancman) – Requiring MOCJ to report on the charges and dispositions of criminal cases.

The quarterly and annual reports generated pursuant to this legislation will help to inform policymakers and public about our criminal legal system. Data is critical to making smart and necessary reforms to the system. We recommend this legislation be amended to require race and ethnicity reporting along with the charge and disposition data.

BDS SUPPORTS: Int. 1569-A (Gibson) – Establishing a Disorderly Behavior violation with reduced penalties.

BDS testified in support of this legislation in April of this year and continues to support it today.

BDS appreciates the City’s recent efforts to roll back Broken Windows policing and reduce arrest numbers and strongly urges more progress. This policy shift likely saved countless people from unnecessary immigration enforcement and other devastating consequences. Likewise, it is critical that this new non-criminal violation and civil offense not be enforced in addition to any existing summonses.

BDS SUPPORTS: Res. 1660 (Gibson) – Urging Governor Cuomo to sign into law A5667A/S4769A, in relation to gravity knives.

BDS strongly supports A5667A/S4769A and thanks Councilmember Gibson for introducing this important resolution. This bill simply clarifies the definition of illegal gravity knives to make clear that ordinary folding knives like box cutters, used peacefully, are tools, not weapons. These utility knives are commonly sold on-line and in hardware stores to workers and artisans, and only specially trained law enforcement officers are able, often only after several tries, to flick them open by exertion. Nevertheless, New Yorkers are regularly arrested and prosecuted for mere possession of these knives and subject to severe consequences under a vague statute that was intended to criminalize large switchblades.

Our criminal defense attorneys report that nearly every client arrested on this charge is carrying a knife for work. Often, they are maintenance workers, stock room attendants, or other types of laborers. Unfortunately, many cannot obtain verification of their employment because their work is unsteady or informal. The vast majority of BDS clients charged with the relevant offense are Black and/or Hispanic—approximately 86%. Case dispositions vary from client to client, but all are deeply impacted. They suffer the trauma of arrest and contact with the system, including overnight detention in a filthy holding cell and the humiliation of being churned through arraignments and, very often, allocution to a plea deal involving an admission of guilt. They can also lose their jobs and their children, and even face deportation because of these arrests. The criminalization of simple possession of work tools further poisons the relationship between law enforcement and the community and expands the dragnet of our criminal justice system, all without any public safety interest.

As the resolution eloquently states, police and prosecutors have never arrested or charged hardware store owners, such as Home Depot executives, for selling these knives and they continue to be regularly sold throughout the city. This unequal enforcement represents a two-tiered system of justice that both reflects and amplifies broader social inequality.

Client stories:

Mr. B was an 18 year-old freshman math major with a merit scholarship at Pace University when he was pulled over for having tinted windows. Peering inside the car, the officer found a folding knife that Mr. B, who worked at an ice skating rink, used to cut laces. Mr. B, who had no criminal history and zero arrests to date, was arrested and detained. His attorney was able to verify his work-related use of the knife and persuaded the District Attorney’s office to offer an adjournment in contemplation of dismissal (ACD) with immediate sealing to protect his scholarship. Nonetheless, untold numbers of online for-profit databases may maintain records indicating that he was arrested for “Criminal Possession Weapon-4th: Firearm/Weapon,” and Mr. B has since struggled to find employment, suspecting that employers are consulting these databases.

Mr. R had a fifteen year-old conviction for drug sales and had successfully completed parole. He had trouble getting jobs because of his criminal record, but was eventually able to get and maintain a job for a construction company. After police officers spotted a knife clip in his pocket, he was arrested and charged with possession of a gravity knife. Because of his earlier conviction and court history, the prosecutors were able to convince the judge to set a high bail and Mr. R was incarcerated at Rikers until he eventually plead guilty to the weapons charge just to get out of jail. By that point, he had lost his job.

J, a 22 year-old, was employed in his father’s auto repair shop when he was stopped for a traffic violation. Police officers conducted an illegal search and found a knife under his seat. J told the officers that he used the knife to open boxes at work, but he was arrested and charged with possession of a gravity knife, anyway. One of our attorneys met with the arresting officer and the prosecutor in the case to view the knife. After a few failed attempts, the officer was able to flick open the knife, but only with a significant exertion of force. J had never even tried, much less succeeded, in opening the knife this way. (This is very common in gravity knife cases.) Yet prosecutors refused to outright dismiss the case, and J was sentenced to three full days of community service.

Mr. S, a 33 year-old maintenance worker at Brightside Academy, an early childhood education center, was arrested and charged with gravity knife possession and low-level marijuana possession. Prosecutors insisted on Misdemeanors for both charges and Mr. S lost his job after the school received a letter informing them that he was charged with “possessing a weapon/firearm.” After repeated requests to the Kings County District Attorney’s office, we were able to test the knife and found it to be a locking folding knife and not a gravity knife. Prosecutors then agreed to dismiss the case, and the client successfully sued for malicious prosecution and unlawful seizure, but his employer would not rehire him.

All of the BDS clients cited above were listed as Black and/or “Hispanic” on their arrest reports.

BDS offers comments on T2017-6706 (Mark-Viverito) – Resolution calling on Congress and the President to oppose the “Concealed Carry Reciprocity Act of 2017.”

While BDS takes no formal position on this resolution, we note for the record that we have represented clients entangled in the disparate gun regulations that exist between jurisdictions. For example, a veteran from Colorado was arrested in Brooklyn for possession of a handgun that was legally licensed in his home state. He had been unaware of the comparatively strict gun laws in this city. Fortunately, our Veterans Court defense specialist was able to secure a case disposition without any jail time. However, others arrested for this offense are generally processed in the Brooklyn Gun Court and often face far harsher penalties. In fact, when Mayor de Blasio announced this new court in the beginning of 2016, his press release explicitly cited a dramatic increase in average jail sentences that occurred in a previous iteration of a Gun Court—from 90 days to one year. Indeed, we have observed that this court is designed to increase the pressure on our clients to accept harsh plea deals, rather than administer individualized justice. It is unclear what public safety interest is gained by incarcerating people on Rikers Island for an additional nine months.

The Council should also be aware that our attorneys have successfully gotten a number of gun possession cases dismissed based on evidence that NYPD officers had planted the guns, yet prosecutors continue to rely upon these same officers in subsequent cases.[1],[2] (I have attached to this testimony one article cited above for your consideration.) Meanwhile, several NYPD officers in charge of gun licensing have been charged by federal prosecutors for allegedly soliciting and accepting bribes, including “cash payments, paid vacations, food and liquor, the services of [sex workers], and free guns.” They are entitled to a presumption of innocence, but the Council should monitor the case.

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

[1] Stephanie Clifford, In Brooklyn Gun Cases, Suspicion Turns to the Police, The New York Times, Dec. 11, 2014 at https://www.nytimes.com/2014/12/12/nyregion/gun-arrests-with-2-things-in-common-the-officers-and-unidentified-informers.html.

[2] Nick Pinto, The Incredibles: Judges Said These Cops Can’t Be Trusted, so Why Does the D.A. Rely on Them?, The Village Voice, Nov. 1, 2016 at https://www.villagevoice.com/2016/11/01/the-incredibles-judges-said-these-cops-cant-be-trusted-so-why-does-the-d-a-rely-on-them/.

News

IN THE NEWS: NYTIMES – “DISABLED PARENTS SUE NEW YORK CITY OVER CHILD REMOVALS”

The New York Times reported on a new lawsuit filed by five mothers in New York City who claim the the Administration for Children’s Services discriminated against them and other parents, violating federal law. Lauren Shapiro, director of BDS’ Family Defense Practice, says the city has failed to provide adequate programs and services that could assist intellectually disabled parents in caring for their children.

Read the full piece here.