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JOINT STATEMENT FROM NYIFUP LEGAL PROVIDERS ON ICE‘S REFUSAL TO BRING PEOPLE TO IMMIGRATION COURT FOR HEARINGS

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JUNE 27, 2018

***FOR IMMEDIATE RELEASE***

JOINT STATEMENT FROM NYIFUP LEGAL PROVIDERS ON ICE’S REFUSAL TO BRING PEOPLE TO IMMIGRATION COURT FOR HEARINGS

DENYING IN-PERSON APPEARANCES WILL IMPACT DUE PROCESS, ACCESS TO COUNSEL, AND EXACERBATE SEPARATION FROM FAMILIES AND LOVED ONES

Andrea Nieves, Brooklyn Defender Services, 718-483-1312, anieves@bds.org

Anna Kim, The Bronx Defenders, 646-504-2977, annakim@bronxdefenders.org

Redmond Haskins, The Legal Aid Society, 929-441-2384, rhaskins@legal-aid.org

 

NEW YORK, NY Brooklyn Defender Services, The Bronx Defenders, and The Legal Aid Society – New York City’s primary defender organizations providing pro bono legal representation on immigration matters through the New York Immigrant Family Unity Project (NYIFUP) – released the following joint statement today responding to U.S. Immigration and Customs Enforcement’s (ICE) refusal to bring people to the Varick Street Immigration Court for their hearings, and its decision to replace in-person appearances with remote video teleconferencing:

“The decision by ICE to eliminate in-person appearances in court is a direct attack on people who have been waiting for months in detention for their opportunity to meet with attorneys, assert their legal right to remain in this country, and see their loved ones,” said New York Immigrant Family Unity Project’s legal providers. “This is a byproduct of President Donald Trump’s most recent pronouncement that immigrants do not deserve the opportunity to go before an Immigration Judge and reflects Attorney General Jeff Sessions’ recent actions to prioritize speed and maximize deportation orders in court rather than ensure due process. As public defenders representing immigrants, we demand that ICE immediately resume bringing individuals to Varick Street to be heard and have their day in court.”
Background
Last weekend, a small group of protesters self-named “Occupy ICE NYC” blocked the garage entrance that ICE uses to bring detained immigrants into the immigration court at 201 Varick Street, New York, NY.  In response, ICE cancelled all hearings scheduled on Monday, June 25, 2018.  There have been numerous protests and gatherings at this courthouse in the past, none of which resulted in cancelling court appearances. Because of the cancelled hearings, dozens of people were prevented from coming to court, where they would have met with a lawyer for the first time; others missed their continued hearing at which they might have finally received a ruling on their case. Still others who would have agreed to go back to their country of origin were instead forced to remain in horrid conditions of detention. Family members who were in the courtroom to support their children, parents, husbands, and wives were sent home without the opportunity to even see their loved ones.

That night, the small group of protesters agreed to move their non-violent protest across the street, enabling access to the garage entrance. On Tuesday, even though there was no longer any blockage of the garage, ICE claimed that a so-called “security risk” forced it to suspend all in-person appearances at Varick Street for the indefinite future. ICE stated that it would force the Court to hold all hearings by video and audio teleconferencing.

On Wednesday, the Occupy ICE NYC group issued a public statement that the protests at the Varick Street Immigration Court were over.  ICE has yet to commit to continuing to in-person court appearances.

The unilateral decision by ICE to deprive people of their day in court is not a reasonable response to a peaceful protest, but rather a pretext for a direct attack on the rights of individuals in this country to access the courts and have a meaningful opportunity to be heard.

Impact on Client Representation

This unilateral decision by ICE to replace in-person appearances with video and audio teleconferencing would eviscerate the ability of NYIFUP providers to ensure due process for people facing removals. Until now, this program has ensured due process by providing a free attorney to almost all unrepresented detained immigrants facing deportation at Varick Street Immigration Court at their first court appearances. Under this program, attorneys have increased immigrants’ rate of winning their cases by a factor of ten, showing that approximately one-third of people arrested and brought to court by ICE are actually entitled to remain in this country under the law. This new process will now deprive immigrants, many of whom have been waiting over three months, of their long-awaited opportunity to speak with a NYIFUP attorney at their first appearance.

Forcing people to rely on videoconferencing to fight their case would severely limit their ability to have a full and fair hearing. Under normal circumstances, clients brought to Varick Street meet with attorneys prior to and following their court appearance to assess their legal options, sign or review documents, and make decisions about how to proceed with their case.  Now, clients won’t be able to do those things nor will they be able to sit with their lawyers in court or look at the evidence presented. Immigration judges will be forced to engage in the inherently difficult task of making credibility assessments involving the most sensitive and emotional of subject matter – all through a screen. In most cases, attorneys will be entirely unable to meet confidentially with their clients before appearing in court, or to do anything other than adjourn a case for another date, adding weeks to the already long detention period and adding to extreme court delays. Many people with strong cases may simply give up and sign their own deportation orders – in spite of potentially being able to remain and achieve lawful status.

Immigrants will not receive adequate interpreter services. It is impossible for an interpreter in the courtroom to translate what is happening in the courtroom to the person on the other side of the screen without disrupting the proceedings. People in need of interpretation will not understand anything that is happening on the case while it is going on and will also miss the chance to correct errors to ask questions.

Denying people the ability to connect with their family in court would exacerbate the immense pain and suffering experienced by our clients and their families. Detained people and their family members often suffer enormous pain and suffering as a result of the separation. Historically, the opportunity for family to briefly connect in court has been one of the few restorative moments in an otherwise-traumatic system.

Immigrants will be further dehumanized. Despite the best intentions of judges to be impartial, there is no doubt that having a live person in the courtroom has an impact on the decision-making in cases. Displacing people from their own court proceedings and onto an impersonal television screen denies their full humanity and makes justice even more elusive than it already is under the current administration’s mass deportation machine.

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The New York Family Immigrant Unity Project (NYIFUP) is the nation’s first public defender system for immigrants facing deportation—defined as those in removal proceedings before an immigration judge. Funded by the New York City Council since July 2014, the program provides a free attorney to almost all detained indigent immigrants facing deportation at Varick Street Immigration Court who are unrepresented at their first court appearances.

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BDS TESTIFIES BEFORE NYC COUNCIL ON ADDRESSING THE OPIOID CRISIS IN CRIMINAL COURT

TESTIMONY OF: 

Yung-Mi Lee – Supervising Attorney, Criminal Defense Practice

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on the Justice System

Hearing on Addressing the Opioid Crisis in Criminal Court

June 21, 2018

My name is Yung-Mi Lee and 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 in nearly 35,000 cases in Brooklyn every year. This includes thousands of people arrested for possession or sale of opioids, and many more fighting deportation, eviction, or a loss of parental rights due to opioid-related allegations or convictions. I thank the New York City Council, Committee Chair Rory Lancman, for inviting us to testify on the opioid crisis in criminal court.

The overdose epidemic is among the most deadly forces in our city today, warranting a strong response from policymakers. According to the New York State Department of Health, 8,444 New Yorkers overdosed on opioids in 2016. 1,769, or 20 percent, of those overdoses occurred in New York City.[1] Importantly, this epidemic is driven not only by opioid use but also by drug mixing, often including a combination of opioids and stimulants. BDS applauds Mayor Bill de Blasio for embracing the Safer Consumption Space model sought by people who use drugs and harm reduction specialists. The four Overdose Prevention Centers, if approved by the New York State Health Department, will build on the successes of other such sites around the world and save lives. We hope it becomes an example for the rest of the country, as public health initiatives originating in this city often are. Crucially, these centers must not become dragnets for the NYPD, which could seriously undermine their efficacy.

BDS believes a public health approach is essential to reducing the harms of addiction and recreational drug use alike. The criminal legal system is simply ill-equipped to prevent drug use, meaningfully reduce the supply of drugs, or – most important – help keep people who use drugs as safe as possible and minimize harm to their families and communities. The City’s and State’s discordant efforts to meld the enforcement and public health approaches often result in unnecessary and counterproductive incarceration and criminal records, social stigma, and tragic deaths.

I. DRUG TREATMENT COURTS

Pressed by formerly incarcerated people, grassroots activism and legal experts to reverse skyrocketing incarceration rates for drug offenses, New York City became a pioneer in the creation of drug treatment courts in the early 1990’s and remains one of the jurisdictions with the most developed post-arraignment diversion system. While these courts may in fact reinforce the problematic drug prohibition model, they have helped reduce jail and prison admissions and sentences. A landmark report, Better by Half: The New York City Story of Winning Large-Scale Decarceration While Increasing Public Safety, details and attempts to quantify the impact of the these courts, including Drug Treatment Alternative-to-Prison (DTAP) program, originally operated by the Brooklyn District Attorney’s office but later replicated throughout the state. For example, “the proportion of felony drug cases that resulted in a prison sentence fell from 21 percent in 1997 to an all-time low of 11 percent in 2007.”[2] Largely as a result of decreased drug arrests and an increase in diversion, the City jail population began to fall from its peak in 1991. State prisons followed suit in 1999 (72,899 in 1999 to 49,424 as of June 1, 2018), with the majority of the decline in admissions coming from New York City. It is important to remember that this decline was relative to the surging incarceration rates under the Rockefeller Drug Laws, during which the state prison populated increased by a factor of seven. The decline has only been by about one-third since then.[3]

In Brooklyn, there are four specialized courts for drug offenses and/or criminal conduct linked to substance use disorders: Screening Treatment & Enhancement Part (STEP), Brooklyn Treatment Court (BTC), Misdemeanor Brooklyn Treatment Court (MBTC), and Brooklyn Mental Health Court (MD-1).

     a. Screening Treatment & Enhancement Part (STEP)

STEP primarily handles non-drug non-violent felony cases (such as grand larceny, unauthorized use of a credit card, burglary in the 3rd degree) for those who have substance use disorders. The court part also accepts felony drug cases for so-called non-violent predicate felony offenders, or people who have one or more prior non-violent felony conviction in the last ten years. Based upon a clinical evaluation, the participant may receive intensive outpatient or residential treatment. Successful completion of the program results in a dismissal of the case. Unsuccessful completion results in a jail sentence up to one year if the person does not have a prior felony.

STEP also handles Drug Treatment Alternative to Prison (DTAP) cases. DTAP is the first prosecution-led residential drug treatment diversion program in the country. The program diverts nonviolent felony drug offenders with a prior felony conviction to community-based residential treatment. [4] DTAP requires an upfront plea to a felony charge that will dispose as a misdemeanor or an outright dismissal if they complete the program. DTAP requires a longer residential treatment mandate – usually up to two years, although I once had a client who stayed for three years because he had no place to live. The mandate also requires six months of outpatient treatment with full-time employment and a stable residence. DTAP is thus difficult for our clients to successfully complete. Notably, DTAP mandates are not based on a clinical determination but are based solely on the participant’s criminal record. If our clients cannot complete the program, they are sentenced to prison time that varies based on the case. Once in prison, they will no longer have access to medication-assisted treatment.

     b. Brooklyn Treatment Court (BTC)

BTC handles felony drug cases for those who are not predicates. This form of treatment requires the consent of the prosecutor. However, if the prosecutor does not consent, BTC has the capability of offering treatment through judicial diversion which was established under the Drug Law Reform Act of 2009.

     c. Misdemeanor Brooklyn Treatment Court (MBTC)

MBTC is designed for people who repeatedly cycle through the criminal legal system on low-level charges due to their addiction. The court has recently evolved to be less punitive toward our clients, with shorter treatment mandates and shorter jail sentences for those unable to adhere to them. Without these shortened mandates and shorter jail alternatives, court administrators, the judiciary, treatment staff, prosecutors and defense attorneys found that defendants were avoiding this option, preferring to take a plea to the underlying misdemeanor with a sentence of time served (or even short jail sentences). Those who complete the treatment program get a full dismissal of their case.

     d. Brooklyn Mental Health Court (MD-1)

MD-1 serves those with serious and persistent mental illness and offers community-based treatment as an alternative to incarceration. A special program is offered for those with dual diagnoses for serious mental illness and substance use disorders.

     e. Concerns with the Existing Treatment Court Models

All of the Brooklyn treatment courts refer participants to “outside” or “contract” substance abuse treatment programs. These programs also have patients who have no court mandate and who are not criminal justice involved. However, the overall quality of these programs varies. Some programs cannot take participants who have a diagnosed mental illness while some are better equipped to treat our clients with dual diagnoses.

New York City has limited residential treatment bed capacity, which can mean wait times of a few weeks or more for our clients who are interested in treatment. Sometimes, if the client is incarcerated, the longer waiting periods discourage a person from choosing the treatment program option. More funding for such programs could increase capacity and reduce waiting periods, but it should only be provided with oversight to ensure that recipient programs are actually addressing the need.

All of these courts have contributed to positive case outcomes for individual BDS clients, but in general many BDS attorneys are skeptical of STEP and BTC, and in some cases even MBTC. All of the treatment courts allow for relapses and recurring relapses, but our clients face increasingly harsher sanctions with each additional relapse. Our clients often find such coercive treatment regimens to be less effective than voluntary alternatives that do not involve such sanctions.

II. THE INJUSTICE OF PREDATORY BUY-AND-BUST OPERATIONS

Many of the felony drug cases[5] we see originate with predatory so-called “buy-and-bust” operations. These buy-and-busts typically involves undercover officers, generally dressed like homeless people and acting desperate, asking or pleading with people who, themselves, are truly drug users, to procure drugs for them. Based on the cases we pick up in court, officers appear to target people who are struggling with either addiction or mental illness or both. Some are what we call “no cash, no stash” cases, in which police do not recover buy money or drugs. Our clients often tell us they procured the drugs out of a sense of obligation to help somebody in need, perhaps in exchange for a single hit. They are almost never actual drug dealers pursuing customers. In some cases, people have walked away with the buy money, and police then arrest them for theft.

Even if law enforcement interventions were an effective tool to reduce the supply of drugs, this predatory NYPD tactic cannot be said to “get drug dealers off the streets.” Police argue that they use this tactic to gain intelligence from people who use drugs to climb the ladder to find higher-level drug suppliers, but we have seen no evidence that buy-and-bust tactics lead to the arrest and prosecution of drug suppliers.

In our experience, prosecutors generally pursue the charges in these cases.

The harm of buy-and-bust operations is that they maliciously target the most vulnerable New Yorkers, those who are homeless, clearly suffering from a substance abuse disorder or mental illness, and prey upon them in order to bump up their arrest numbers. Rather than setting people up for arrest and jail time, NYPD should be working with other city agencies to connect people in crisis with voluntary drug treatment, mental health support, housing and other services.

In one buy-and-bust case that was highlighted in the New York Times, a juror actually wrote a letter to prosecutors in the office of Manhattan District Attorney Cy Vance, saying it was “approaching absurd that you would use the awesome power of your office to represent the people of New York County, along with it and the court’s limited resources, on such a marginal case.”[6] This juror raises a valuable point: Why is the City wasting its resources on targeting the most vulnerable among us, rather than supporting them? If police can identify people struggling with addiction, why not provide them with information on treatment options or other services?

III. ARRESTS AND HARASSMENT OUTSIDE METHADONE CLINICS

For many years, the NYPD has targeted areas surrounding methadone clinics and needle exchanges for enforcement and harassment. This is widely known in public health circles, and police have discussed reforms, yet aggravatingly, the practice persists.[7] Often, the arrests involve deceptive buy-and-busts or other predatory tactics that sometimes result in serious charges against people who are actively and even successfully turning their lives around. Furthermore, it is impossible to know how many people have shied away from medication-assisted treatment and other widely-accepted and publicly-funded harm reduction resources due to fear of police presence. These harm reduction resources they are infringing upon have been proven to save lives, which suggests that police interventions may in fact be resulting in uncountable deaths.

When discussing the frequency of this practice, one of our attorneys said: “Everybody’s arraigned a guy who’s been arrested outside a methadone clinic. Usually, it’s a Friday and the guy’s got enough for the weekend.”

IV. MARIJUANA PROHIBITION AND THE OPIOID EPIDEMIC

Research funded by the National Institute on Drug Abuse found that legally protected marijuana dispensaries were associated with reductions of 16 to 31 percent in opioid overdose deaths. (HealingNYC seeks to reduce opioid deaths by 35% over 5 years.) Other experts have argued that the criminalization of marijuana led to the over-prescription and over-use of opioids and eventually the epidemic that we are struggling to address today. Simply put, marijuana seems to be a safer alternative to opioids in pain management, but criminalization undercuts that benefit. However, even under the new reduced arrest policy announced earlier this week by Mayor Bill de Blasio, vulnerable New Yorkers will continue to face arrest and possibly prosecution for personal marijuana use. This should end. BDS is proud to support the Drug Policy Alliance’s (DPA) StartSMART campaign to legalize and sensibly regulate adult marijuana use and sale across New York State. The immense harms of prohibition and discriminatory enforcement practices, balanced against the opportunity for advances in racial justice and economic empowerment envisioned by this campaign, warrant urgent action by state legislators and the Governor. The Marihuana Regulation and Taxation Act (MRTA), S.3040/A.3506, sponsored by Senator Liz Krueger and Assembly Member Crystal Peoples-Stokes, would create a well-regulated and inclusive marijuana industry, improve public safety, and meaningfully repair some of the damage caused by existing drug laws, in addition to helping to address opioid epidemic.

V. #HealingNYC, DRUG PROHIBITION AND RESOURCE MISALLOCATION

Although it was marketed as a public health program, approximately half of the city funding for Mayor Bill de Blasio’s initiative to combat the opioid epidemic, HealingNYC, is allocated to the New York Police Department (NYPD). This is an attempt to pair a public health approach to problematic drug use with increasingly aggressive law enforcement tactics – a strategy favored by many policymakers today, but one that does not appear to be rooted in modern science.

We appreciate that Mayor de Blasio is spearheading an effort to expand the use of life-saving naloxone kits and medication-assisted treatment, as well as other important initiatives to reduce the stigma of addiction and mental illness. However, we are concerned this important work could be undermined by regressive law enforcement strategies that further marginalize, stigmatize and ultimately criminalize the very people the Administration seeks to support. Indeed, as Crain’s reported last year, “nearly half of the $143.7 million budgeted for HealingNYC through fiscal year 2021 will go to the NYPD, mostly to step up arrests of drug dealers.” Much of the funding provided to the police was reportedly to be used to investigate overdoses with the goal of bringing criminal charges against people alleged to have supplied the drugs.[8]

There is a growing recognition among policymakers across the country, many of whom may struggle with addiction themselves or have friends or family members who struggle with addiction, that criminalization and the resulting marginalization are an ineffective and, in fact, often very dangerous approach to drug use. These dangers are only heightened as police and prosecutors pursue homicide-like charges or other very serious charges against alleged suppliers when overdoses do occur. In at least one case, NYPD worked with federal law enforcement agencies, leading to a federal prosecution of a man who had shared drugs, at below cost, with his best friend, who tragically overdosed and died. This strategy aligns with an alarming national trend toward expanded use of drug-induced homicide prosecutions identified by the Drug Policy Alliance in a recent report, An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane.[9] Among many other serious risks, experts have noted that increased enforcement can discourage people who witness overdoses from calling 911 because suppliers are often close acquaintances and may even be the witnesses, themselves.

Portugal’s model for drug policy suggests that we may be able to dramatically reduce overdose deaths and other serious harms related to addiction through a careful and deliberate decriminalization of the use and possession of all drugs coupled with an aggressive public health strategy. In that country, heroin use has been cut by an estimated 75% and, more importantly, overdose deaths have plummeted. Portugal has the lowest rate of drug-induced death in Western Europe – less than 2% of the rate in the United States. In light of the overdose epidemic, lawmakers should seriously study this model and import its successes where possible.

Even if a greater investment in law enforcement efforts against suppliers were an effective approach, the Council should consider whether it makes sense for those funds to come from initiatives like HealingNYC or rather be diverted from other NYPD functions. For example, the most common drug arrest charge in 2016 was for low-level marijuana possession (18,136) and, as referenced above, Mayor de Blasio recently committed to reducing this number. At an April 22, 2017 New York City Council Committee on Public Safety hearing, then-NYPD Chief of Detectives Robert Boyce said of the Department’s response to the epidemic: “Our focus is not on the individual addict. Our focus is on the street level as well as interdictions coming into the country.” Arrest data provided by the New York State Division of Criminal Justice Services does not support this statement. The most common drug arrest charge in 2016 was low-level marijuana possession, with 18,136 arrests. The next most common NYPD drug arrest charge, or fifth most common arrest overall, in 2016 was low-level non-marijuana drug possession, or Criminal Possession of a Controlled Substance in the 7th Degree, with 16,630 arrests. The most common drug sale arrest charge was Criminal Sale of a Controlled Substance in the 3rd Degree, with 5,628 arrests, or approximately one-sixth of the number of low-level drug possession arrests.

When analyzing the merits of drug enforcement and coercive treatment systems like drug treatment courts, it is essential to always consider what the funding required by these approaches could do to address the underlying causes of addiction and problematic drug use, such as lack of access to mental health care in the community.

As a public defense organization, Brooklyn Defender Services is principally concerned with the direct impacts of drug laws and enforcement on our clients and their families and communities. That said, we recognize that the fiscal and economic impacts of drug policy do in fact play a major role in their daily lives. For example, most of our clients or their children attend or attended public schools with inadequate funding. According to the New York State Board of Regents, schools are owed billions of dollars in funding under the Campaign for Fiscal Equity lawsuit, with the majority owed to schools with high populations of Black, Latino and immigrant students.[10] Without the resources for a State Constitutionally-mandated “sound basic education,” many of our public schools have infamously become pipelines to prisons and jails. If funds currently spent on drug enforcement were instead reinvested in school-based mental health clinics and restorative justice programs, school environments would improve and administrators and teachers would be better able to address any behavioral problems without calling 911 or issuing suspensions and expulsions. If funds currently spent on overtime for police officers who make buy-and-bust arrests near the end of their shifts were instead reinvested in making substance use disorder treatment more widely available, perhaps overdoses would decline rather than increase or plateau at record-high levels.

The fact that drug prohibition is the status quo should not exempt it from close scrutiny. This hearing is a critical example of such scrutiny. These resource allocations expand the disparities in health, economic success, and liberty in our society.

VI. CLIENT STORIES

(All names have been changed.)

Jake was a 40 year-old with a series of prior arrests. He was making progress in overcoming his heroin habit through his participation in a local methadone program in South Slope, Brooklyn. His mental health had deteriorated in tandem with his drug use. An undercover police officer disguised as a homeless man rolled up to him one day, begged him for heroin, and promised to give him a cut of the money. Jake was not interested in selling drugs, but acquiesced, bought him a bag, and was arrested. Ever since, all of his progress against his addiction has stalled. He worries about whether he will be evicted from NYCHA, where he cares for his ailing mother full time. He has now lost trust in himself and his ability to gain sobriety, suffering from severe anxiety and depression. He may go to drug treatment court, but at best it will restore him to his former path toward success, and at worst it will result in a sentence to upstate prisons, where he will have no access to medication-assisted treatment.

David was a 21 year-old with severe cognitive impairment (an IQ of 55) that qualifies as moderate mental retardation. He had struggled with heroin addiction since he was 16. He was living at home with mom in Bay Ridge addiction when he was arrested at 21 for petit larceny after stealing from her to buy drugs. The judge at arraignments set bail set and he then took a plea with a full order of protection to get out of jail. He was forbidden from having any contact with his mother, which resulted in a series of contempt charges, on which a BDS attorney represented him, when he violated the order. His mother never wanted the order and asked for it to be withdrawn, but the District Attorney fought to keep it in place because they deemed his offense elder abuse. He was forced to stay in a shelter. The judge ordered regular treatment, but with his cognitive condition, he did not have the wherewithal to tackle addiction himself. He could not even answer the intake questions. His mom had been his only support. After completing a certain amount of treatment, the judge would agree to lift the order of protection; in other words, his mother could not legally assist her son until he completed his treatment and he could not complete his treatment without her. Seeing no other options, David’s BDS attorney and social worker regularly went with him to the methadone clinic. Ultimately, after the case had been open for two years, the judge realized how limited he was, recognized his hard efforts, and accepted his partial compliance with the program, resolving the case with a conditional plea to misdemeanor contempt with a limited order of protection for five years. Unless his mother makes a serious allegation against him, they can remain together.

Francis was found after he overdosed in a public bathroom and, after being revived, was charged with misdemeanor drug possession. With several other misdemeanor cases open, he continued to suffer from substance use disorder. He acquired a gun owned by a family member and intended to sell it for drug money but was caught and arrested for criminal possession of a  weapon in the 2nd degree – a C violent felony. He ultimately pled to an E felony with two to four years in upstate prison. He was denied a treatment alternative because his was technically a violent crime.

Anthony, a 46 year-old, was charged with a violent felony for an alleged stabbing. He did not remember the incident. He had used heroin for more than two decades and had been incarcerated for most of his life. Because of the seriousness of the charge, the judge set bail $300,000 and he was sent to Rikers Island. During his time there, which lasted nearly a year, he was not allowed into any treatment program because he had been charged with a violent crime. Our social workers often find it difficult or impossible to get our clients into such programs for the same reason. Another common reason for such denials is an allegation that the person is a member of a gang, a specious and questionable designation that should have no bearing on access to treatment.

Carlos was an older man with a heavy file, which is indicative of a long history of criminalization. As is often the case with such people, his is a record of mostly misdemeanors. He was ensnared in a buy-and-bust operation and charged with felony possession with intent to distribute. The prosecutor found the arresting officers’ documentation deficient and dismissed the felony charge, leaving only the misdemeanor drug possession charge for residue on a crack pipe found in Carlos’ pocket. He was released from court with a sentence of time served and, as always, a mandatory surcharge that will likely go unpaid, damaging any credit he might have had. His parting words to his BDS attorney were, “I have a crack problem. When are they going to stop this?”

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BDS is grateful to the Council 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 Senior Policy Specialist, at 718-254-0700 ext. 382 or jchausow@bds.org.

 

[1] New York State Department of Health, New York State – Opioid Annual Report (October 2017), available at https://www.health.ny.gov/statistics/opioid/data/pdf/nys_opioid_annual_report_2017.pdf.

[2] Judith A. Greene & Vincent Schiraldi, Better by Half: the New York City Story of Winning Large-Scale Decarceration while Increasing Public Safety, 29 Fed. Sentencing Reporter 22, 27 (2016), available at https://sites.hks.harvard.edu/ocpa/cms/files/criminal-justice/research-publications/fsr2901_04_greeneschiraldi.pdf.

[3] New York State Corrections and Community Supervision, DOCCS Fact Sheet, June 1, 2018, available at http://www.doccs.ny.gov/FactSheets/PDF/currentfactsheet.pdf.

[4] Prosecutors may also, at their discretion, allow people to participate in DTAP who are charged with or have previous convictions for technically violent felonies, if the underlying conduct of the violent felony was not actually violent and no one was injured. A common example of this is burglary in the 2nd Degree when somebody steals a package from an empty foyer in a residential building.

[5] Most of these cases are charged with felony drug possession intent to distribute (PL 220.16) or felony drug sale (220.39).

[6] Joseph Goldstein, Undercover Officers Ask Addicts to Buy Drugs, Snaring Them but Not Dealers, N.Y. Times, April 4, 2016, available at https://www.nytimes.com/2016/04/05/nyregion/undercover-officers-ask-addicts-to-buy-drugs-snaring-them-but-not-dealers.html.

[7] John Knefel, The Common Cure for Heroin Addiction is Also a Magnet for Police Harassment, Buzzfeed, Feb. 19, 2015, available at https://www.buzzfeed.com/johnknefel/how-police-harassment-at-methadone-clinics-makes-quitting-he?utm_term=.rj94qpORg#.ekNOjm12P; see also VOCAL-NY, Beyond Methadone: Improving Health and Empowering Patients in Opioid Treatment Programs (2011), available at http://www.vocal-ny.org/wp-content/uploads/2011/10/Final-Methadone-Report1.pdf.

[8] Caroline Lewis & Rosa Goldensohn, Will stepping up drug-dealer arrests help alleviate the opioid crisis? Crain’s N.Y. Business (2017), http://www.crainsnewyork.com/article/20170522/HEALTH_CARE/170529996/nypd-gets-biggest-share-of-new-city-funding-to-fight-opioid-overdose-deaths (last visited May 30, 2017).

[9] Lindsay LaSalle, An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane (Drug Policy Alliance 2017), available at http://www.drugpolicy.org/sites/default/files/dpa_drug_induced_homicide_report_0.pdf.

[10] Brennan Center for Justice, Campaign for Fiscal Equity V. State of New York (2006), https://www.brennancenter.org/legal-work/campaign-fiscal-equity-v-state-new-york.

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BDS CALLS ON THE NYS LEGISLATURE TO PASS THE PROTECT OUR COURTS ACT!

BDS Staff Attorney Catherine Gonzalez shares a client story at the June 5, 2018 Protect Our Courts Act rally.

Brooklyn Defender Services (BDS) strongly supports A.11013/S.8925, a bill to protect people from warrantless civil arrest in courthouses.

Since the beginning of this year, Brooklyn Defender Services has had approximately 30 of our criminal defense clients arrested by ICE in or outside the courthouse or in the community. Our immigrant clients are rightly terrified to appear in court, whether as defendants, witnesses or as friends or family members accompanying loved ones.

Our clients are not the only immigrants targeted for arrest by ICE in our courthouses. From 2016 to 2017, Immigration and Customs Enforcement (ICE) arrests in and around New York State courthouses increased 1200%. Twenty-eight percent of the undocumented immigrants targeted had no prior criminal history. The majority were reporting to court on low-level offenses, many for traffic violations.[1] The legislature must act to protect immigrant New Yorkers from unlawful arrests and targeting by ICE in and around our courts.

Read our Memo of Support here.

[1] Immigrant Defense Project, Press Release: IDP Unveils New Statistics & Trends Detailing Statewide ICE Courthouse Arrests in 2017 (Dec. 31, 2017), available at https://www.immigrantdefenseproject.org/wp-content/uploads/ICE-Courthouse-Arrests-Stats-Trends-2017-Press-Release-FINAL.pdf.

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BDS SUBMITS COMMENTS TO THE NYS DEPT. OF FINANCIAL SERVICES & NYS DEPT. OF STATE LISTENING SESSION ON ABUSES BY THE BAIL BOND INDUSTRY

Comments by:

Catherine Gonzalez, Staff Attorney

BROOKLYN DEFENDER SERVICES

Written with: Saye Joseph, Policy Associate, and Jared Chausow, Senior Policy Specialist

Presented before

NYS Department of Financial Services and NYS Department of State

Listening Session on Abuses by the Bail Bond Industry

June 11, 2018

 

My name is Catherine Gonzalez and I am a staff attorney in the Criminal Defense and Padilla units at Brooklyn Defender Services (BDS). BDS is one of the largest legal services providers in New York City, representing approximately 35,000 low-income Brooklyn residents each year who are arrested, facing child welfare allegations or deportation. BDS also provides a wide range of other services to our clients, including housing, education, employment and immigration legal assistance and advocacy. I thank the New York State Department of Financial Services (DFS) and the Department of State (DOS) for this opportunity to testify about the immense harm of commercial bail bonds on our clients, their families and communities. Ultimately, the State should work toward abolishing this predatory and unnecessary industry. My comments will center the stories of the people we represent.

I.  BACKGROUND

The commercial bail industry serves no legitimate purpose and should be abolished. We echo the call of New York City Comptroller Stringer for the total abolishment of commercial bail bonds.”[1] There is no place for for-profit actors in determinations of liberty, including during the pre-trial period when people are presumed innocent.

Approximately 16,000 people are detained in local jails across New York State every day because they cannot afford to pay bail. Though New York’s bail statute provides judges nine different options for bail, including options that do not require the defendant to pay anything upfront, the nearly invariable practice of judges is to offer people accused of crimes the most onerous and ultimately punitive choices: Pay the full amount now or visit a bail bondsman. (I can recall only one case in which a judge allowed for a partially secured bond.) A recent report published by the Lippman Commission, empaneled by former City Council Speaker Melissa Mark-Viverito to investigate our City’s criminal justice system and develop a plan for the closure of the jails on Rikers Island, demonstrated that judges and prosecutors rarely spend any time considering the defendant’s ability to pay.[2] Therefore, most of our clients for whom bail is set in any amount default to spending an uncertain amount of time on Rikers Island because they are unable to pay, even if the bail is set as “low” as $100.[3] Convicted of no crime, thousands of people are detained in New York City jails until and unless their loved ones can scrape together enough money to buy their freedom from a third-party whose only motive is profit.[4] This injustice fuels a thriving for-profit bail bond industry, in which defendants and their families are forced into predatory and often illegal financial agreements with little or no recourse.

Families in this situation pay a non-refundable portion of the total bail amount to a bail bond company, who then writes a bond for the full bail amount. Bail bond agents also require collateral, generally in the form of significant additional upfront money and/or property titles, and often charge additional fees. Finally, the agreement may incorporate additional terms and conditions, such as required check-ins and consent to surveillance.

While there are laws in place to regulate the charges imposed by bail bond companies, many companies violate the laws with impunity.  For example, the law imposes a cap on total premiums and compensation, excluding collateral that is slated to be returned at the close of a case, based on a formula laid out in the bail statute. In our experience in Brooklyn, many if not most commercial bail bonds charge premiums and fees that exceed the cap. Any such additional monetary charges are illegal, but are routinely charged by bail bonds agents.  . DFS does not take action to stop these illegal charges, in my experience. Collateral is unregulated, and may be extremely costly; its return to consumers is also not monitored or enforced by DFS. The additional terms and conditions may be extremely onerous but their enforcement by bounty hunters remains a legal grey area. In practice, bail bonds act as extortion—sometimes aided by violence—for an individual’s freedom.[5] Rampant abuse exists in part because bail bonds companies’ customers are among the most marginalized and disempowered New Yorkers and regulators have largely ignored this industry.[6] That said, predation is endemic to the industry and our criminal legal system’s reliance upon it, as even those transactions that are perfectly legal involve a significant transfer of scare funds from mostly low-income families to for-profit corporations.

Client Examples

These are just a handful of examples of the type of abuse and exploitation that our clients’ families face every day in Brooklyn when they seek a commercial bail bond for their loved one.

Ms. J went to Marvin Morgan Bail Bonds in Brooklyn to get her son out of Rikers Island. She was particularly nervous for him because it was his first arrest. The bond was set at $1,000, and according to state law, the company was allowed to charge her $100 in “premium or compensation” that she would never get back, regardless of the outcome of the case. The company instead charged her $300, comprised of $100 for the premium and $200 in “courier fees” to deliver the paperwork. The courier, Lightning Courier Service Inc, is registered with the New York State Department of State at the same address as Marvin Morgan Bail Bonds. (Other BDS clients have paid $1,000 in courier fees, including at least one who paid that amount to Lightning Courier Service at Marvin’s.) Marvin’s did not bail her son out of Rikers for five days. According to DFS, there is no statutory requirement that a bail bonds agent actually bail anybody out, and there is certainly no deadline by which they must act as they are paid to do. Finally, the day before Ms. J’s son was set to appear in court, he was bailed out. Our client went to his hearing and his case was dismissed. Nonetheless, Ms. J’s money will almost certainly not be returned to her. She has filed a complaint with DFS, but, like all commercial bail customers, she signed a large contract in a time of crisis, was not given a copy, and might have signed a document that, lawfully or not, contained provisions regarding the fees she paid.

$300 is a lot of money for the many extremely low-income New York families who enter our criminal justice system. But Ms. J’s loss was relatively small compared to that of other clients who have recently complained to us.

Ms. W went to ABC Bail Bonds in Brooklyn to get her son, who suffers from serious mental illness and addiction, out of Rikers. She paid $3,560 in premiums and fees on a $50,000 bond, or $300 over the legal ceiling. She also provided the deed to her house and paid $5,000 in collateral. Soon after her son was released, however, he was involuntarily committed to a state psychiatric hospital and missed a “check-in” with the bail company. Rather than call Ms. W and ask for her son’s whereabouts, the company “apprehended” him from the hospital, returned him to jail, and exonerated the bail in a non-adversarial hearing. They also kept Ms. W’s $3,560, along with her $5,000, which it took the liberty of converting from collateral into an “apprehension fee.” Ms. W complained to DFS and sought return of the money, but the agency rejected her complaint, sending a copy of a check made by the bail bond agent with a different person’s name in the memo.

One of our social workers recently accompanied a client, Ms. S, to Marvin Morgan Bail Bonds to observe the process of securing their services to get her son out of jail. The company charged her an illegally high sum, but she had called around and this company was the cheapest. Informed that the compensation was illegal, she asked, “What choice do I have?” She signed a 24 -page contract and paid as charged, including a $1,000 courier fee to Lightning Courier Service Inc.

II. THE NEED FOR COMPREHENSIVE BAIL REFORM

Money bail is not a fair, effective, or necessary means to ensure a defendant’s return to court; the success of our charitable bail funds, whose clients have no financial “skin in the game,” proves this to be true. The Brooklyn Community Bail Fund has paid bail for more than 2600 New Yorkers since 2015 and 95 percent of their clients have returned to court for all of their court dates.[7] For this reason, unsecured bonds, for which defendants pay nothing upfront, should be the norm under the existing bail statute. To the extent that courts and District Attorneys continue to require some form of upfront money bail, and continue to be permitted to do so under the law, there is no need to rely on commercial bonds. The better options is for people charged with a crime to pay a bond directly to the court, which would return that money in full if they are not convicted of a crime, or all but 3% if they are convicted, as long as they make their court dates. This has been the practice in Massachusetts for more than thirty years, which has effectively abolished the for-profit commercial bail bonds industry in that state.[8] This option exists in New York’s current bail statute, though most judges rarely if ever order partially secured bonds. Commercial bail is actually banned in Illinois, Kentucky, Oregon, Wisconsin, and the District of Columbia, and pending legislation in New York would add our state to this list.[9],[10]

Commercial bail is a twisted form of insurance; consumers assume all of the risk and pay substantial premiums and fees. Frankly, this industry would not be allowed to exist were it not principally used by marginalized people. According to Comptroller Stringer, “in the last year alone…the private bail bond industry extracted between $16 million and $27 million in nonrefundable fees from New York City defendants and their families.” These are predominately low-income families of color, many forfeiting rent or food money to free loved ones from jail.

Until recent enforcement actions by the New York City Department of Consumer Affairs (DCA), DFS was the only watchdog for the industry. Complaints that we and our clients have submitted in the last several years have never yielded any sanctions and, more importantly, it is not clear that DFS has any interest in making whole those who have been victimized.

In truth, it is not only impacted individuals and families who are left feeling powerless when courts order commercial bail. As a public defender, I have little advice to give my clients and their loved ones with respect to bail bonds businesses. They want referrals, but no company can be trusted in this lax regulatory environment. All I can do is provide them with a pamphlet on bail paying that our office helped create with the Brooklyn Community Bail Fund through the Center for Urban Pedagogy, and strongly urge them to get a copy of contracts and receipts. With liberty on the line, and sometimes just hours to pay before DOC’s bus is loaded and leaving the courthouse for Rikers Island, there is little opportunity to challenge bail bonds businesses’ wrongdoing. The City and State must take action, and courts should cease ordering commercial bail. This industry should be prohibited in the State of New York, as it is in other states.

III. THE STATE’S FAILURE TO REGULATE COMMERCIAL BAIL BONDS

Bail bond businesses commonly charge illegal fees and premiums in excess of the cap, yet DFS does not affirmatively take action against them and, at least in cases that we have referred the agency, does not even take reactive action. Companies commonly fail to post bail in a timely manner, leaving loved ones on Rikers Island for days, yet a representative of DFS once told my colleague that such delays are legal and, in fact, a bail bonds agent does not ever have to actually bail anyone out, under the law. They may convert money collected collateral into an unrefundable fee, or otherwise misuse this money. They may impose any and all conditions, as a for-profit entity, on New Yorkers’ liberty and a condemn people to jail for the most minor of violations while keeping some or all of their money. Most importantly, there is no effective mechanism for those who have been overcharged by bail bonds businesses to be made whole.

Absent any meaningful consumer protections from state regulators, the community is left to try to protect itself. Unfortunately, once we, as defense attorneys, identify a bad actor, we have no way of knowing which other storefront locations are operated by that actor. Moreover, even when a bad actor is pushed out, as happened in one case after decisive action by DCA, other bad actors are licensed and ready to take their place. In reality, there are no bail bond companies that we feel comfortable recommending to our clients or their families.

IV. CONCLUSION

Brooklyn Defender Services’ recognizes and on a daily basis witnesses the deeply entrenched judicial practice of cash bail or bond as the only option for pre-trial release that reinforces the market for unscrupulous bail bondsmen. New York must shift the culture towards one that does not punish a person accused of a crime, but allows them to maintain their innocence unless proven guilty. Commercial bail is a gross distortion of justice. These patterns of abuse bolster our advocacy for abolishing commercial bail.

Thank you for your consideration of my comments and recommendations. If you have any questions regarding my testimony, or any issue, please contact Jared Chausow in my office at jchausow@bds.org or (718) 254-0700 Ext. 382.

[1] NYC Comptroller Scott M. Stringer, The Public Cost of Private Bail: A Proposal to Ban Bail Bonds in NYC (2018), https://comptroller.nyc.gov/reports/the-public-cost-of-private-bail-a-proposal-to-ban-bail-bonds-in-nyc/.

[2] Independent Commission on New York City Criminal Justice and Incarceration Reform, A More Just New York City (2017), available at http://www.ncsc.org/~/media/C056A0513F0C4D34B779E875CBD2472B.ashx.

[3] Cherise Fanno Burdeen, The Dangerous Domino Effect of Not Making Bail, The Atlantic, April 12, 2016, available at https://www.theatlantic.com/politics/archive/2016/04/the-dangerous-domino-effect-of-not-making-bail/477906/.

[4] American Civil Liberties Union & Color of Change, $elling Off Our Freedom: How Insurance Corporations Have Taken Over Our Bail System (May 2017), available at https://www.aclu.org/sites/default/files/field_document/059_bail_report_2_1.pdf.

[5] See Jessica Silver-Greenberg & Shaila Dewan, “When Bail Feels Less Like Freedom, More Like Extortion,” NY Times, March 31, 2018,  available at https://www.nytimes.com/2018/03/31/us/bail-bonds-extortion.html.

[6] New York City Bar, Report by the Criminal Justice Operations Committee, Criminal Courts Committee and Corrections and Community Reentry Committee: Recommendations Concerning the Bail Bond Industry in the State of New York (2017), available at http://s3.amazonaws.com/documents.nycbar.org/files/201744-BailBondIndustryNYS_FINAL_4.26.17.pdf.

[7] Brooklyn Community Bail Fund, https://brooklynbailfund.org/.

[8] Fred Contrada, “Bail bondsmen are a thing of the past in Massachusetts,” Mass Live, March 25, 2014, available at https://www.masslive.com/news/index.ssf/2014/03/bail_bondsmen_are_a_thing_of_t.html.

[9] Alysia Santo, When Freedom Isn’t Free, The Marshall Project, Feb. 23, 2015, available at https://www.themarshallproject.org/2015/02/23/buying-time#.QBLGtAkcI; see also Justice Policy Institute, For Better or for Profit: How the Bail Bonding Industry Stands in the Way of Fair and Effective Pretrial Justice 4 (Sept. 2012), available at http://www.justicepolicy.org/uploads/justicepolicy/documents/for_better_or_for_profit_executive_summary.pdf.

[10] S.8146 (Benjamin)/A.10394 (Blake), available at https://www.nysenate.gov/legislation/bills/2017/s8146.

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BDS TESTIFIES BEFORE THE NYC COUNCIL ON NYPD’S GANG TAKEDOWN EFFORTS

TESTIMONY OF:

Rebecca Kinsella – Social Worker, Criminal Defense Practice

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council

Committee on Public Safety

Oversight Hearing on NYPD’s Gang Takedown Efforts

June 13, 2018

My name is Rebecca Kinsella. I am an Adolescent Social Worker at Brooklyn Defender Services (BDS), one of the largest legal service providers in Brooklyn. BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and tools for self-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 Richards, for holding this oversight hearing on the New York Police Department’s (NYPD) gang takedown efforts.

My testimony today is about the mass surveilling of Black and Latinx communities via the NYPD’s gang database, the immense harm caused by a gang designation, and the need for alternative responses to problematic youth behavior. Currently there is no meaningful oversight and accountability for the NYPD gang database, no publicly acknowledged measures to ensure that people are not erroneously placed or kept on the database, no transparency on whether a person is on the database, and no remedy to remove one’s self from it. In response to Freedom of Information Law (FOIL) requests, the NYPD has argued that it cannot tell New Yorkers whether they are in the database because that would reveal non-routine tactics.

NYPD uses arbitrary criteria to determine gang membership or affiliation such as living in a “known gang location,” apparel, scars, tattoos, hand signs, and relationships with “known gang members.” Significantly, commission of any crime(s) is/are not among the criteria. Therefore a teenager who lives in public housing and mimics his peers by showing hand signs in a Facebook photo with no connection to any criminal activity can be included in this database for the rest of their life without any due process protections.

In spite of the critical flaws which undermine its integrity, the gang database has devastating consequences for those listed, including heightened police harassment, unaffordable bail and elevated criminal sanctions in cases that may otherwise be dismissed, and possibly deportation for immigrant New Yorkers. This undemocratic policing tool exists at a time of precipitously declining violence and statistically marginal influence of gang motivations, as identified by the NYPD, on remaining violence. In these ways, the NYPD database and label as a gang affiliate recall McCarthyism, in which suspicions, and inconclusive and questionable evidence were collected and selectively distributed in order to penalize and even criminalize a person’s real or supposed association with a group, with no meaningful opportunities to challenge their designation. BDS urges an immediate elimination of this database. We also recognize the serious and lasting harm of violence within communities, but our relationships with impacted individuals and families and our systemic view of the problem brings us to a very different conclusion than the one drawn by the NYPD, namely that greater opportunity, not repression, military-style raids and mass arrests, is the solution.

GANG PROFILING AND POLICING COMMUNITIES POST-FLOYD

As CUNY Law Professor K. Babe Howell wrote in her seminal 2015 report on gang policing, Gang Policing: The Post Stop-and-Frisk Justification for Profile-Based Policing, “After years of stopping suspicious people in high-crime areas, the NYPD is addicted to profile-based policing.” The U.S. District Court ruling in Floyd v. City of New York did not end the practice of stop and frisk or deem it unconstitutional. Rather, the Court ruled the probative cause being a racial profile was unconstitutional and as long as there is a reasonable suspicion of criminal activity the tactic of a stop and frisk is legally permissible. Since then, reported stop-and-frisks have declined, and the NYPD has doubled its anti-gang unit and increased monitoring, particularly via social media.[1],[2] (The Gang Division had already doubled in size shortly after class certification in Floyd.)

Many of the people we represent experience an alleged gang affiliation as a justification for a stop and frisk, other forms of police harassment like threatening phone calls and letters, and sometimes arrests for the paltriest of offenses like jaywalking. Once a person is “certified” by the NYPD as a gang member because they meet the criteria mentioned above, there is no established way to challenge that administrative designation in court or elsewhere. In other words, even those who are arrested and whose charges are later dismissed, or who complete a sentence of some kind, may still be subject to invasive and abusive police tactics indefinitely with no recourse. Unlike illegal stops and searches, which occasionally, though rarely relative to their extreme frequency, resulted in arrests that could be challenged in court, gang designations are subject to no public accountability.

It is no surprise that inclusion in the NYPD’s gang database is racially disproportionate. According to data turned over after FOIL requests submitted by Professor Howell, the NYPD added 21,537 people to its gang database between 2001 and August 30, 2013. 48% were Black and 44% were Latino; only 1% of the individuals added to the NYPD’s gang database were white.[3] Subsequent FOIL responses received by Professor Howell revealed that an additional 17,000 people were added to the database in the past four years, with less than 1% being white, and a majority being young people, as young as 13.

In the last several years, thousands of New Yorkers have been swept up in so-called “gang” raids or takedowns, nearly all of them Black and/or Latinx.[4] Many of these raids were conducted as joint operations by the NYPD and state and federal agencies, including the Homeland Security Investigations (HSI) division of Immigration and Customs Enforcement (ICE). The Council should consider the merits, if any exist, of this mass surveillance program. I will detail the harm.

Client Story: Patrick

 Patrick, 17, was arrested for alleged trespassing in his own public housing building. Before being taken away by police, his mother showed up with a copy of her lease that included his name. Nonetheless, police had him handcuffed and taken to the stationhouse. He spent approximately 50 hours in lockup and lineups before he was brought to arraignments on misdemeanor trespass charges. Because prosecutors have no case against him, his charges were quickly reduced to a misdemeanor, but the process has already punished him thoroughly. We believe the case against him is without merit and will end with either a dismissal or more likely, if he takes a plea, a non-criminal violation. We also believe he is on the NYPD’s gang database, and that is the underlying reason for his terrible ordeal.

THE IMPACTS OF GANG ALLEGATIONS IN COURT: BAIL, JAIL, PLEA DEALS, AND SENTENCING

 Gang allegations negatively impact determinations of bail and pre-trial release, plea deals, and sentences. Once a prosecutor alleges on the record that the accused is in a gang, the possibility that a judge will order release on recognizance is significantly reduced, often resulting in unaffordable bail regardless of the merits of the case or the absence of any past failures to appear in court.[5] That means potentially weeks, months, or even years in jails like Rikers Island or the Metropolitan Correctional Center, the horrors of which have been well-documented, while a person fights the charges against them. Such is the power of the gang label.

The Bureau of Justice Assistance, a division of the U.S. Department of Justice, has found that “[t]hose who are taken into custody are more likely to accept a plea and are less likely to have their charges dropped.”[6] Indeed, there is ample research documenting that finding, and our experience at BDS affirms it. It should be obvious that anybody who has experienced even a day in Rikers, and who faces the prospect of weeks, months or years inside, is far more likely to accept a plea that involves an admission of guilt than somebody who is free until their trial, regardless of whether or not they are in fact guilty. District Attorneys consistently exploit this leverage.

Compounding the harm of this pressure to plea, prosecutors typically offer harsher deals, including longer jail or prison sentences, to people alleged by NYPD to be part of a gang. Alternative to incarceration programs are often off the table in these cases, as will be explained in the next section. In this way, gang designations contribute to mass incarceration.

IMPACTS OF GANG DESIGNATIONS ON YOUNG PEOPLE IN CRIMINAL COURT

For young New Yorkers facing charges of alleged gun possession or, in some cases, robbery in Brooklyn, there are only two available alternative to incarceration programs: Youth and Congregations in Partnership (YCP) and Project Redirect. Both are run by the Brooklyn District Attorney’s (DA) office, require upfront guilty pleas with severe suspended sentences, and allow for defendants to get their cases dismissed and sealed upon completion. YCP is the preferable option for our clients, as it is less onerous. This program requires young people to participate in weekly meetings with DA staff, attend school or work, and abide a curfew for a year. However, in our experience, adolescents who are alleged to be gang members are never offered this program, and instead are pushed to Project Redirect.

Project Redirect is a deeply problematic program whose secrecy rivals that of the gang database. Much of what we know about it is reported by clients who have participated, as defense attorneys are generally prohibited from accompanying them in discussions about the program with their prosecutors, with the occasional exception of a preliminary briefing. It appears to be geared toward turning our young clients into informants on their friends and neighbors, and mostly sets its participants up for failure. It also appears to be predicated on a measure of deception, as young people are led to believe the program consists of job placements, college admissions support, musical recording opportunities, when in reality they are being co-opted into participating in the gang policing effort.

Project Redirect is extremely difficult, if not impossible, to complete for most targeted participants. It lasts between eighteen months and two years and requires defendants to abide by a deeply regimented schedule of school, work, and meetings with the DA’s office, with deviations for tasks like purchasing milk for the family at a local bodega permitted only with prior approval, often via text messaging. They cannot have contact with others identified as fellow gang members, which may include family and any or all local community members. They are not permitted to use any social media, which for many is the only way to keep in contact with relatives around the world. They must wear button-down shirts, slacks, and ties every day. They cannot wear any so-called “gangsta’ type” jewelry. They are required to debrief, or inform on others. They must wear ankle monitors and their every movement is tracked by GPS. They receive home visits from Detective Investigators and must make regular visits to the DA’s office. Altogether, they are forced to walk around with giant targets on their backs, both as “snitches” to the community and as gang members to the local police officers. This dynamic makes them isolated and vulnerable to violence. Rather than addressing the social marginalization that pushes people into gang membership and possibly problematic behavior, it aggravates internal conflicts within communities. In our experience, almost nobody completes this program. Many “fail” for refusing to debrief. Others “fail” after being arrested for minor infractions in their over-policed communities. They are then sentenced to their “jail alternative,” namely several years in upstate prisons.

Client Story: Joshua

 Joshua, 17, has no connection with his biological family. He lives with a loving foster mom, who adopted him, and who has many other foster children to care for. As his social worker, I can assure you that he is brilliant and kind. Recently, he was stopped and frisked and found to be in possession of a loaded gun. For the first time in his life, he was arrested. He wants to get the charge dismissed so he can go to college, and he is willing to make real changes in his life, but the truth is he would likely be unable to complete Project Redirect, in part because he refuses to report on others in his community. Moreover, he is accustomed to taking care of himself, and the prospect of adhering to such strict and unforgiving scheduling and oversight is daunting. He can choose between this program, and all but certain and substantial prison time. He will almost certainly take the prison time and permanent criminal record, with all of its irreversible lifelong consequences.

Client Story: David

We began representing David when he was 18 years old. Approximately 3 years prior to our meeting David, he was shot not only in his own neighborhood, but on his own block, not far from his own front door. During the pendency of his case, David was indicted on allegations of gang conspiracy. Devon, who is an incredibly smart young man, would often engage in conversation with me about how lack of resources in the community drove the amount of time he and his friends would spend on the streets.

While he awaited a resolution on his cases, David was jailed on Rikers Island with peers in both of the groups ensnared in the gang conspiracy allegations. David later wrote me a letter while detained in which he outlined suggestions for resolving the disagreements that he and the other young men had, suggesting that prosecutors allow the young men to engage in mediation to prevent further violence by younger generations. Instead, they are all now in prisons upstate.

 THE IMPACTS OF GANG ALLEGATIONS ON IMMIGRANT NEW YORKERS

I understand this hearing is focused on the NYPD’s gang takedowns, but we cannot ignore the continuum of repression in which they exist, namely the criminalization-to-deportation pipeline. At BDS, many of our clients are trapped in the intersection of oppressive and discriminatory policies at the local, state, and federal level. They face criminal sanctions, the loss of their children, eviction, deportation, and more. So-called gang policing goes to the heart of all of these policies. Our immigration attorneys represent people in deportation proceedings, and we work with the real people and families behind the dehumanizing, misleading propaganda that ICE produces to justify its actions in our communities, particularly with respect to gang allegations. ICE uses the gang label to justify making courthouse arrests, jailing teenagers who came to this country seeking asylum and safety, ripping children from their parents’ arms, turning public schools into traps for immigrant students and parents, and indefinitely detaining people of all ages in jails.

Gang accusations by ICE are often based on standing with the wrong people, or wearing the wrong hat, or footwear. Again, these criteria do not amount to criminal conduct, but they yield extremely serious sanctions. In particular, our clients of Central American descent with no criminal records are profiled and treated as future criminals; this is undemocratic and wrong. It is important to remember that, when these massive raids happen, they can take promising young students, future college graduates, and primary income-earners from the community.

At this point, we do not know exactly what information the NYPD shares with ICE, either actively or passively, through shared use of various databases. That said, the damage to a person’s residency and immigration status wrought by aggressive prosecution or even mere arrests is clear. The NYPD collects arrestees’ fingerprints and shares them with the federal government, which uses them to track and arrest immigrants at home, at work, in court, or elsewhere and ICE uses state-level convictions to strip an immigrant of any lawful status or block them from obtaining any form of relief. Even immigrant New Yorkers on the gang database who have never been arrested may be a serious risk of harm. For example, the suspicion of a gang affiliation can be the reason a DACA application is denied since a lesser known criterion for removal from the program and country is if a person is a confirmed or suspected gang member and, again, we do not know what information the NYPD shares with ICE. In general, we are skeptical of the City’s insistence that any law enforcement intel is not shared with federal agencies.

Client Story: Jorge

The New Yorker reported on the story of a teenage boy we represented named Jorge. His story is all too familiar for young Latinx living in areas such as Long Island, young men who may also experience gang violence. Though Jorge was not a part of a gang or did not take part in any criminal activity, he was arrested by ICE. The reason for his arrest was a suspicion of gang membership, because his girlfriend’s ex-boyfriend was a MS-13 gang member, he wore a Brooklyn Nets hat, and he was allegedly witnessed engaging in an unspecified gang handshake.[7] Though Jorge was released from the detention center after a judge ruled that the evidence against him was too weak, he now has to fight a protracted legal battle to gain any legal status to stay in the US.

Jorge’s case is representative of what the New York Immigration Family Unity Project (NYIFUP) team within our office is seeing in cases arising from Suffolk County. Most of our “gang” related cases come to us because the Suffolk County Police Department gives incorrect intel to ICE about our person’s affiliation to the MS-13 gang, often deriving from school-based surveillance. In the majority of these cases, this designation is without merit.

 GANG POLICING MAY INCREASE THE GANG POPULATION

The discriminatory enforcement and use of a gang database and designation has led to unwarranted police actions directed to people engaging in innocuous behavior and associations. This is a draconian law enforcement and prosecutorial response to gangs, and gang problems. If a person did not have any gang affiliation prior to being arrested, they are likely to be initiated into one once they are sent to jail or prison as a survival mechanism.

Through our Jail Services team, we have seen the way the New York City Department of Correction classifies or misclassifies people as members of gangs and even shares that information with prosecutors. In fact, there is a long history of people being pressured to join gangs by jail staff, some of whom identify as members of gangs, themselves.[8] We have also heard from detained clients that jail staff instigate or manipulate gang violence as a tool of control. In one incident earlier this year, 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.

In the context of jail’s systemic deprivation and daily humiliations, people join gangs for access to basic necessities, like hygiene products. Gang designations by DOC also result in disqualifications from much needed rehabilitative programs such as Mentally Ill and Chemical Abuse (“MICA”) treatment or A Road Not Taken substance abuse program. Unfortunately, we have had several clients finally ready for treatment, but due to a supposed or actual gang membership, they were not able to receive treatment while in jail. These designations also often result in solitary confinement, which is widely recognized as a form of torture and which only adds to the pressure to accept plea deals in exchange for release.

RECOMMENDATIONS

  1. Abolish the NYPD gang database

Brooklyn Defender Services calls for the abolishment of the gang database. While we work towards the complete dismantling of this blacklist system, we again ask the Office of the Inspector General for the NYPD to immediately conduct an investigation of the current NYPD gang database.

  1. Increase funding for organizations using the Cure Violence model

In addition, City Council should consider reallocating resources away from punitive responses to alleged gang membership toward interventions that have proven effective in reducing violence and other unlawful activity. Specifically, we advocate for an increase in funding for community centers, high-quality and engaging programming, and organizations using the Cure Violence Model.

In 2012, the city launched a Cure Violence initiative, but prevention and intervention efforts that could be effectively implemented to curtail gang violence are underutilized and underfunded. While certain programs that are used may reinforce marginalization through partnerships with the NYPD, others have proven to be successful in strengthening community-based safety and security. At its most effective, the strategy leverages the experiences of young men of color, many of whom are former gang members, to act as “credible messengers” of an anti-violence message and “violence interrupters” to prevent and reduce gun and gang violence. Community-based organizations working under the Cure Violence model employ “violence interrupters” and outreach workers from the community who have themselves experienced violence and also have strong relationships with young adults, community leaders, and service providers.[9] Violence interrupters stop conflicts before they happen, and outreach workers redirect the highest-risk youth away from life on the streets and the criminal system. All of this is done by unarmed community members, who value every person’s right to security and protection from harm.

  1. Reallocate resources to support, rather than profile, marginalized communities

The city should shift resources away from policing alleged gang or crew members and toward providing the support that individuals, families, and communities need to thrive. This strategy should focus on the root causes of social marginalization and any violent or otherwise problematic behavior.

Thank you for your consideration of our comments. If you have any questions, please contact Saye Joseph in my office at scjoseph@bds.org or (718) 254-0700 Ext. 206.

This testimony was written with Saye Joseph, Policy Associate, and Jared Chausow, Senior Policy Specialist.

 

[1] N.b. The decline in reported stop-and-frisks from 685,724 to 22,565 in just a few years defies belief, and many have expressed skepticism about the reporting methods, but the consensus holds that use of this tactic has indeed declined. See New York Civil Liberties Union, Stop-and-Frisk Data, available at https://www.nyclu.org/en/stop-and-frisk-data.

[2] K. Babe Howell, Gang Policing: The Post Stop and Frisk Justification for Profile-Based Policing, 5 Univ. Denver Crim. L. Rev. 1, 16 (2015), available at https://academicworks.cuny.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1067&context=cl_pubs.

[3] Howell, Gang Policing, 5 Univ. Denver Crim. L. Rev. 16. Eight percent of individuals added to the NYPD gang database between 2001 and August 30, 2013, were unidentified by race.

[4] Deam Meminger, NYPD Credits Reduction in NYC Murders to Gang Takedowns, NY1, Nov. 8, 2017, available at http://www.ny1.com/nyc/bronx/criminal-justice/2017/11/08/nypd-credits-reduction-in-nyc-murders-to-gang-takedowns.

[5] K. Babe Howell, Fear Itself: The Impact of Allegations of Gang Affiliation on Pre-Trial Detention, 23 St. Thomas L. Rev. 620 (2011) https://academicworks.cuny.edu/cgi/viewcontent.cgi?article=1090&context=cl_pubs

[6] Lindsey Devers, Ph.D., Plea and Charge Bargaining (U.S. Bureau of Justice Assistance 2011).

[7] Jonathan Blitzer, How Gang Victims are Labelled as Gang Suspects, The New Yorker, May 6, 2012, available at https://www.newyorker.com/news/news-desk/how-gang-victims-are-labelled-as-gang-suspects.

[8] Brad Hamilton, Brutal System of Teen Beatings Continues at Rikers Island’s RNDC Prison, NY Post, May 6, 2012, available at https://nypost.com/2012/05/06/brutal-system-of-teen-beatings-continues-at-rikers-islands-rndc-prison/.

[9] Samuel Lieberman, Former gang member try to snuff out violence in NYC, Vice, March 25, 2015, available at https://www.vice.com/en_us/article/kwxeam/former-gang-members-are-trying-to-snuff-out-violence-in-new-york-city-325.

BROOKLYN DEFENDER SERVICES APPLAUDS THE NEW YORK STATE ASSEMBLY FOR PASSAGE OF COMPREHENSIVE DISCOVERY REFORM

Lisa Schreibersdorf, Executive Director and Founder of Brooklyn Defender Services, issued the following statement in response to the historic passage of the Assembly Discovery Reform Bill, A.4360 (Lentol).

“Brooklyn Defender Services applauds the New York State Assembly for taking the bold and historic step of passing comprehensive criminal discovery reform. New York is now well on its way to ensuring justice statewide and joining the other states that have open-file criminal discovery laws. People accused of crimes must have early and automatic access to the evidence in their cases.

For more than forty years, New York prosecutors have been allowed to withhold police reports and other crucial evidence, called discovery, from people accused of crimes until after a jury is sworn – months or years after an arrest. This is an injustice that cannot stand in the twenty-first century. We urge the Senate to pass and the Governor to sign this groundbreaking piece of legislation immediately.”

Read the BDS Memo in Support of Comprehensive Discovery Reform here.

A copy of the press release for the statement is here.

News

ELECTED OFFICIALS, ADVOCATES, AND PUBLIC DEFENDERS GATHER TO INTRODUCE GROUNDBREAKING NEW BILL TO PROTECT IMMIGRANTS FROM UNLAWFUL ICE ARRESTS AT COURTHOUSES

The Protect Our Courts Act would prohibit federal immigration agents from making arrests without a judicial warrant and is the first-of-its-kind nationally

NEW YORK – June 5, 2018 – New York Assemblymembers Michaelle Solages, Carmen De La Rosa, Inez Dickens, Councilmember Carlos Menchaca, advocates, and public defenders convened today in NYC and Albany to support the introduction of the Protect Our Courts Act (A11013). The groundbreaking new bill would prohibit Immigration & Customs Enforcement (ICE) agents from making civil arrests at New York State courthouses without a judicial warrant or court order. The protection extends beyond courthouse walls, and applies to arrests of individuals going to or leaving a court as well. To date, the bill offers the most comprehensive regulations on ICE courthouses arrests in the U.S.

“ICE’s increasing arrests and intimidation of our immigrant clients in and around our courthouses has compromised the administration of justice,” said Lisa Schreibersdorf, Executive Director of Brooklyn Defender Services. “If the people we represent, as well as witnesses and victims of crimes, cannot safely appear in court to participate in the legal process then the integrity of the whole system is undermined. We strongly support the Protect Our Courts Act to end ICE arrests without judicial warrants in our courts.”

Sponsored by Assemblymember Michaelle Solages, the Protect Our Courts Act upholds a pillar of our democracy – equal access to our judicial system, regardless of immigration status – and will protect any party in a court proceeding in New York State, including victims, witnesses, and defendants attending a variety of courts, such as family and housing court.

Since the beginning of 2017, there has been an unprecedented 1200% increase in ICE courthouse arrests across New York State, effectively disrupting court functions, sowing fear in immigrant communities seeking justice, and undermining public safety. In fact, a statewide survey conducted by the Immigrant Defense Project found that more than two-thirds of advocates working with survivors of violence said they have clients who have decided not to seek help from the courts due to fear of ICE. Another report from the ACLU found that courthouse arrests were deterring immigrants from reporting crimes.

New York is leading the way in providing meaningful protection to its immigrant communities. In April, Governor Andrew Cuomo signed an Executive Order banning ICE arrests in state-run buildings without a judicial order. The Protect Our Courts Act follows suit by helping ensure access to courts for all New Yorkers.

For an FAQ on the bill and stories of people impacted by ICE courthouse arrests, visit https://www.immigrantdefenseproject.org/ice-courts-nys/.

Read BDS’s Memo in Support of the bill here.