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BDS TESTIFIES BEFORE NYC COUNCIL COMMITTEES ON JUSTICE SYSTEM AND GENERAL WELFARE OVERSIGHT HEARING ON REMOVALS FROM PARENTS AND CARETAKERS IN CHILD WELFARE CASES.

TESTIMONY OF:

 

Lauren Shapiro

Director, Family Defense Practice

BROOKLYN DEFENDER SERVICES

 

Presented before

 

The New York City Council’s Committees on

Justice System and General Welfare

Oversight Hearing on Removals

from Parents and Caretakers In Child Welfare Cases.

 

 

November 27, 2018

 

Introduction:

 

My name is Lauren Shapiro and I am the Director of the Family Defense Practice at Brooklyn Defender Services (BDS). Thank you to the Committees on the Justice System and General Welfare for this important opportunity to submit testimony about the harmful impact that the surge in the Administration for Children’s Services’ child welfare filings over the past two years has had on Brooklyn children and families and how this increase in filings has made it even more difficult to obtain access to family court for the cases that need judicial intervention.

 

BDS is a full-service public defender office in Brooklyn, representing approximately 35,000 low-income New Yorkers each year who are arrested, charged with abuse or neglect of their children or face deportation. Our Family Defense Practice (“FDP”) was founded in 2007 when New York City first began funding institutional providers to represent parents in child welfare proceedings.[1] In our eleven years of service to the Brooklyn community, FDP has represented over 11,000 parents in Brooklyn Family Court and has helped more than 20,000 children remain safely at home or leave foster care and reunite with their families. We are the primary provider of representation for parents in Article 10 cases in Brooklyn Family Court and currently represent over 2,700 parents.

 

Over 90 percent of our clients are charged with allegations of neglect, rather than abuse. Most of these neglect cases are poverty-related, such as poor housing conditions, lack of adequate day care or children not attending school. Other cases, such as those in which domestic violence or excessive corporal punishment is alleged, are complicated by poverty. A large number of our clients struggle with mental health and/or substance abuse issues or are facing other challenges to parenting, such as intellectual or physical disabilities. Many of our clients are or were in foster care themselves.

 

There are also profoundly disproportionate rates of child welfare involvement within communities of color.  Despite making up only 23% of New York City’s child population, Black children represent over 52% of foster care placements.[2]  Racial inequity is the result of structural racism that is embedded in our historical, political, cultural, social, and economic systems and institutions.  Understanding the intersections of race, racism, immigration status, and poverty is critical to challenging inequity in the child welfare system.  We acknowledge that ACS is working to address the systemic issues that lead to disproportionality by creating a new office to address racial equity after having a committee on this issue,[3] we see the harmful impact of disproportionality every day and believe this work should be done on an urgent basis.

 

Recommendation: We encourage City Council to work with ACS to require more reporting on the families involved in this system, which will help illuminate these disproportionate rates of involvement among communities of color, and will help ACS, advocates and community members to work to find better solutions that will ensure that our child protective system accurately represents and serves the needs of the City’s children and families.

 

While our clients often have many needs that impact their ability to keep their families together, in our experience, the vast majority of families suffer much more trauma from being separated from each other than from staying together with supports in place. Social science research and recent statements from national medical and psychological organizations such as the American Academy of Pediatrics bear out the high cost of separating children from their parents.[4]

 

As we explain in detail in this testimony, the increase in child welfare filings has led to an increase in removals of children from their families, many of which are unnecessary. These removals have, in turn, increased the number of emergency hearings at which a judge must decide whether a child should be placed in foster care. These hearings are taking place over days and sometimes months and are contributing to extensive delays in resolving the underlying issue of whether abuse or neglect has even occurred. All of these factors have placed an enormous burden on the court system which has led to long delays and decreased access to justice for families that require judicial intervention.

 

Increase in Abuse and Neglect Filings in Brooklyn over the last two years

 

Since the tragic death of Zymere Perkins in September 2016, child welfare filings in Brooklyn have gone up by 45% from an average of 142 cases per month to an average of 206 cases per month. Although the data may show that the number of children in long-term foster care has not increased overall, it is clear that the number of children initially removed from their parents or threatened with removals has vastly increased. To the extent that the numbers of children in foster care has not increased it is only because attorneys from Brooklyn Defender Services are actively litigating emergency hearings early on in cases – often preventing a foster care placement or ensuring the children’s immediate return after they were removed without court order. In Brooklyn, the number of emergency hearings we are litigating has increased by 90% since October 2016. Our office is now litigating about 40 emergency hearings each month to keep children home or have them returned from foster care, resulting in hundreds of children never entering foster care or returning home very quickly. From July 2017 through October 2018, we litigated emergency hearings involving more than 600 children, and won or favorably resolved 66% of them reuniting families or keeping them together. Although many of the hearings we litigate result in children going or staying home, when children have already been removed or are under the stress of possibly being removed from their families, the removal itself is traumatic and affects a child’s sense of security and attachment to their parents.

 

The increase in filings, without an increase in judicial resources, has negatively impacted the functioning of Kings County Family Court. In 2015, New York City Family Courts received nine additional judges, the first increase in the number of judges in over 20 years. Around the same time, Brooklyn Family Court was restructured in an attempt to expedite Article 10 cases which then had the longest time to disposition in the City. Four trial parts were designated to expedite emergency hearings and fact-finding trials where the underlying allegations of abuse or neglect are litigated to ensure a quicker resolution for families. Shortly after this, we saw a sharp increase in filings which led to a huge backlog of cases. This fall, Kings County also lost two Family Court Judges in the child protective parts, and we have not been advised whether or when these judges will be replaced. With the loss of judges and an increase in cases, the trial part system was dismantled and all judges are struggling with managing emergency hearings.

Harm of Separating Children from their Families

 

The decision to remove children from their parents is a grave one. Removal causes lifelong trauma to children and can often have lasting negative consequences, including psychological problems into adulthood. [5] The New York State Legislature has declared that it is in children’s best interest to live with their parents “because the child’s need for a normal family life will usually best be met in the home of its birth parent.”[6] The Social Services Law further says that “the state’s first obligation is to help the family with services to prevent its break-up or to reunite it if the child has already left the home.”[7] The research also bears out that children belong with their parents whenever possible and that placement in foster care results in worse outcomes for children.[8] In our experience, the optimal outcome for children is remaining with their families whenever it can be safely achieved, even when their parents are less than perfect. Nothing less is required by the law. The foster care system is not a substitute for families. Children in foster care are likely to be moved multiple times; do not have the same opportunity for bonding with adults; are more likely to be arrested as they get older; and more likely to have children at a younger age.[9] Foster care should not be seen as anything but a temporary stop on the way to family reunification, except in very limited circumstances.

 

Although the Court of Appeals in Nicholson vs. Scoppetta made clear that courts must balance the harm of removal against the risk of harm to the children of remaining in the home, it is clear that ACS workers and their supervisors are not considering the harm of removal when they are deciding whether to separate children from their families. In an effort to address this problem, beginning in August 2016, we have worked with ACS to revise two Safety Alerts which discuss how the “harm of removal” should be considered in child welfare decision-making and how to minimize the trauma of removal. It took many months for ACS to sign off on these policies, and we have yet to hear back from the Office of Children and Family Services about approval of the safety alerts.

 

Under federal and state law, ACS is required to seek an order from a Family Court Judge before removing a child. However, the law permits ACS to remove children without a court order in an emergency situation when the danger to a child is so serious and so immediate that there is no time to go to court.[10] In those cases, ACS must go to court on the next court day and seek a court order continuing the removal, or return the child.[11] Family Court Judges grant some of ACS’ removal applications, but they also frequently deny these applications, finding that removal is unnecessary because the risk to the child is not imminent or can be mitigated with court orders or by providing the family with services, and/or finding that any risk of danger is outweighed by the severity of the harm that the removal would cause the children.

 

Recommendation: Given the highly traumatic nature of parent-child separation, unnecessary removals should be avoided whenever possible. Child Protective Service workers and their supervisors require greater training about the nature of the harm of removal and on the steps they can take to avoid removals while ensuring a child’s safety.  ACS should promulgate the proposed safety alerts and conduct massive training on them.

 

Unnecessary Removals due to Lack of Access to Court Oversight

 

Even in cases in which ACS does file a petition asking a Judge for an order to remove a child, Family Court Judges often refuse to hold immediate hearings, increasing the chances of an unnecessary removal.

 

For example, we had a case in which ACS filed a petition alleging that our client’s children had been missing school and that her home was dirty, and asked the Court to remove the children. Our client, a working single mother of eight, opposed the removal and asked the court to hold a hearing before removing her children, but the court refused. Instead the Judge issued an order temporarily removing the children and placing them in foster care pending the outcome of the hearing, which it scheduled for two days later. ACS removed our client’s children pursuant to the order and brought them to the Children’s Center, where they stayed until 3:00 a.m., at which time they were moved to their aunt’s home. The next day, the children were not brought to school. When we appeared in court for the hearing two days after the removal, ACS agreed to return the children to their mother.

 

It is common for Family Court Judges to refuse to decide an application for removal, instead scheduling the case for a hearing the next day and telling the parties that “ACS has its emergency removal powers.”

 

This practice, which we believe is unlawful, is harmful to children because it increases the likelihood that ACS will make a decision to remove unnecessarily that will then be reversed by a Judge. Additionally, it deprives children and parents of the opportunity to present evidence to the court to demonstrate that the children can remain safely at home, particularly where court orders might help to ensure the children’s safety. It also deprives the family of the opportunity to present evidence of the irrevocable harm that removal will cause the children until after that harm has already been done. Telling ACS to make the decision in the first instance without the benefit of judicial oversight frustrates the purpose of that oversight, allowing more erroneous and harmful removals to be conducted, only to be reversed later.

 

 

Unnecessary Removals due to ACS Misuse of “Emergency Removal Powers”

 

Since 2010, we have been working with ACS to reduce the number of unnecessary removals city-wide, focusing on cases in which ACS removes a child first and then comes to court later, only to have a Judge decide that the child can safely remain with the parent. Although ACS developed a new policy in response to our concerns in 2011[12] and the number of emergency removals went down after issuance of the policy and training, we still see many cases in which the trauma of removal could have been avoided if ACS had come to court to seek permission to remove the child instead of using its “emergency removal powers.”

 

  • One client of ours had her five children, ages 3-15, removed from her care twice without a court order, only to be returned to her care once the removal application came before a Family Court Judge. The first time, two of the younger children were found leaving the family’s shelter alone. Our client returned to the shelter immediately and explained that she had left her children in the care of their 15-year-old sister while she went to work. ACS nevertheless removed all of the children from her care and placed them in the Children’s Center, where they spent the next two nights. On the following day, the case was scheduled for a hearing to approve or deny ACS’ removal application. Instead of going forward with the hearing, ACS agreed to return the children to their mother. Two months later, ACS came to the shelter in the evening and found the children home alone. Our client returned from running errands shortly after the ACS worker arrived and explained that she has arranged for a babysitter but that person had apparently left. The ACS worker initially left the children in our client’s care, but returned at 2:15 a.m. and removed them. The following day a Family Court Judge ordered the children returned to their mother once again.

 

  • ACS removed our client’s nine-year-old son for the first time in November 2017 when our client and her husband were arrested. Our client was released immediately, but ACS refused to return the child to her. He was kept in the Children’s Center for four days. When the parties appeared for a hearing on the removal, ACS agreed to return him to his mother. Then, in July 2018, ACS received a report that the child had been injured by his stepfather. ACS visited the home to investigate twice in the two days after the report, but did not remove the child. Three days after the report was received, ACS removed the child without a court order based on the injury that had occurred three days earlier. ACS sought a court order the day after the removal; the case was scheduled for a hearing on the following day; and on the day of the hearing, ACS agreed to return the child to his mother.

 

  • ACS removed two children, ages one and five, from their parents because their father called ACS and said he could no longer care for them and their mother (our client) was not home. Instead of contacting the mother, or her counsel, or filing a petition in court, ACS removed the children without a court order and took them to the Children’s Center. ACS filed a petition the following day. Our client appeared in court and asked for the children to be released to her care. ACS refused and the case was scheduled for a hearing the following week. When the parties appeared for the hearing, ACS agreed to release the children to our client. The children had been in the Children’s Center for a week.

 

  • We represent a young mother who is currently in foster care herself and resides with her son in a mother-child program. On July 19, 2018, our client and her son were outside playing when her son ran into the street. Our client ran after him, but before she could get to him, he bumped into the back of a car. He was brought to the hospital where he was evaluated and released without marks, bruising, or pain. On Monday, July 23, 2018, a nurse at the mother-child program reported the incident to the ACS caseworker and additionally alleged that our client slapped her son the day before. ACS removed the child without a court order and brought him to the Children’s Center. When ACS did seek a court-ordered removal, our client requested a hearing, and on July 31, 2018, she was granted an extended overnight visit. The visit was delayed because ACS had already placed the child in non-kinship foster care in violation of the court’s orders. On August 2, 2018, the hearing concluded and the court returned the child to his mother, finding no legal basis for the weeklong removal.

 

Unnecessary removals frequently occur when a parent with older children in foster care has a new baby, or what are referred to as “Safety Alert 14” cases. “Safety Alert 14” is an ACS directive that requires foster care agencies to report a case to the State Central Registry when a parent who has children in foster care gives birth to a new child. Although Safety Alert 14 requires agencies to do pre-birth planning which could avoid unnecessary removals of newborns, in practice, it is difficult to get the agencies to schedule these planning conferences. In addition, even when they do have these conferences, there is no mechanism to involve ACS before the birth of the child, which results in decisions about newborns unnecessarily being treated as emergencies by ACS. This then results in many newborns remaining in the hospital after they are otherwise ready for discharge, thereby separating the mother from her newborn even when ACS ultimately agrees the newborn can be released.

 

  • Our client had her two-day-old infant removed from her care without a court order solely because she had several older children who were the subject of ACS cases: two of those children were in her care under ACS supervision, and two were in kinship foster care and had unsupervised visits with her. Our client had planned to breastfeed her baby but was unable to do so due to the removal. The following day, ACS filed a petition in court and agreed to return the baby to our client.

 

  • Our client had her newborn baby removed from her care without a court order solely because she has an older child in foster care. Although ACS knew she was pregnant and the foster care agency case worker in her older child’s case had no safety concerns about her caring for the newborn baby, ACS told the hospital not to release the baby to her. ACS nevertheless did not file a petition or seek a removal order until three days after the baby was born. Our client requested a hearing and at the conclusion of ACS’ evidence, the Family Court Judge ordered her infant daughter released to her care. As a result of ACS’ decision to remove the newborn baby without a court order, she was unnecessarily kept in the hospital, away from her mother, for a week, unable to nurse.

 

  • Another client’s two-day-old baby was held in the hospital at the direction of ACS when she was discharged after giving birth because she had an older daughter in foster care. The foster care agency in charge of her daughter’s case had known about her pregnancy yet failed to hold a planning conference to consider releasing the baby to her even though she was permitted unsupervised visits with her older daughter. Although the baby was medically ready for discharge on Friday, the hospital was instructed by ACS not to discharge him to his mother until the following Monday, when ACS finally decided not to seek a removal and he was released to his mother’s care.

 

Unnecessary Requests for Remands and Delays in Litigating Emergency Hearings

 

Since 2016, when filings started to escalate, ACS has increasingly asked the Family Court to remand children into foster care without carefully assessing whether a removal is really necessary.

 

In one case, ACS filed a petition and asked for a removal on a day when our client had told ACS she was unable to come to court because she did not have carfare. ACS asked the Judge to remove our client’s two children because they claimed that she had been smoking marijuana with her four-year-old son. The Judge granted the removal based on this information and adjourned the case for two days. Instead of removing the children, ACS told our client to bring the children to court two days later. The case was in front of a different Judge that day, and although our client and the children begged the Judge not to remove them, the new Judge said they had to be removed because it was already ordered by a different Judge and she could not reverse the decision without first holding a hearing. The earliest the court would hold the hearing was the following week. On the day of the scheduled hearing, ACS agreed to release the children back to their mother, after the children had spent four days separated from their mother during which time they had only one agency and one resource supervised visit. After the children were returned, we discovered that ACS had already determined long before filing the petition that the allegation that our client had smoked marijuana with her son was unfounded. The family court ultimately dismissed all of the allegations that formed the basis for the children’s removal based on ACS’s own records of their investigation prior to the filing of the petition. ACS agreed to the dismissal of the remaining allegation, that our client herself used drugs, after she repeatedly tested negative for all illicit substances.

 

ACS also frequently seeks to remove children in cases where there are unexplored options for keeping the family together – often where the parent has expressed a willingness to engage in services that could permit the children to remain home safely or the family has not yet had a meaningful opportunity to do so. In many of these cases, there is very little social work being done by ACS at the start of the case and very little problem-solving. ACS does not appear to be thinking about orders that can be put in place to eliminate risk and is using the filing of a court case as an opportunity to force compliance. On a daily basis, we are starting hearings, litigating them from week-to-week or day-to-day, and then either winning these cases or settling them with agreements to release the children after a safety plan has been developed. Starting hearings where settlement is possible is a waste of judicial, ACS, and attorney resources. Moreover, these short-term foster care stays are clearly harming children by disrupting their sense of security and normalcy.

 

The increase in requests for remands has led to a dramatic increase in the number of emergency hearings. As a result of this increase in emergency hearings, ACS case workers are spending more time coming to court to participate in emergency hearings. This results in their having less time to investigate cases and to work with the other families to whom they are assigned. For non-emergency appearances, such as conferences or permanency hearings, we encounter the repeated and persistent problem of no report prepared for the court and no case worker with actual knowledge of the case appearing in court. A regular consequence of case workers being overburdened by their large caseload is that they send coworkers to cover for them who do not know anything about the family or their services. In that situation, the case is often adjourned, further wasting court resources and prolonging resolution of the case.

 

Courts hold emergency removal hearings under either section 1027 or 1028 of the Family Court Act. Under 1027, where no remand order has been entered, parents can challenge ACS’s request for a remand and the court must start a hearing by the next day and then continue the hearing day to day as necessary. Under section 1028 of the Family Court Act, when a parent requests the return of their child after a removal order has been entered, the court must commence that emergency hearing within three days of the request unless good cause can be shown why it should be delayed, and once commenced, it shall not be adjourned. In practice, courts are struggling to fit in all of the emergency hearings being requested and as a result, they are often being held for 15-30 minutes at a time and being adjourned for weeks, or even months. These are some examples:

 

  • A client’s two young children had been in kinship foster care with their grandfather for several months, during which time our client completed the parenting class that ACS recommended and had become fully engaged in counseling services. When the client learned that her father would no longer be able to care for her children due to a medical issue, the client requested that her children be returned to her pursuant to section 1028. While the first hearing date was scheduled within the statutorily required three days, the hearing did not conclude for four months. Although the testimony at the hearing came from only two witnesses, that testimony was spread out over the course of 13 appearances between June and October 2018 with one adjournment lasting 56 days. At the conclusion of the hearing, the family court returned the children to our client, but during the four months that it took to complete the hearing the children were required to live in foster care with strangers.

 

  • In another case filed in May 2018, we requested a 1028 hearing on June 6th. After 20 court appearances, we prevailed on the case after ACS finished presenting their evidence on November 15th – more than five months after the hearing was requested.

 

  • Our client’s five children (ages 2-10) were removed from her care when she was nine months pregnant with her sixth child. As soon as her daughter was born, just two weeks later, ACS removed her as well. We litigated an emergency hearing for the return of all six children over the course of nearly six weeks. Initially, the children had been split into groups of three and placed with family members. However, throughout the course of the hearing, the three oldest children were again removed from family and placed in non-kinship foster care with a family that spoke only Spanish, even though the children did not speak Spanish. They were then removed from that home and separated into two different non-kinship foster homes until the hearing ended. After eleven court appearances, the Judge agreed to release all of the children to our client’s care.

 

  • In another case filed in October 2017, our client’s two-month-old baby was removed from her care for almost a month. The Judge agreed to return our client’s baby to her after 6 court appearances and he has remained safely with his mother since that time.

 

  • Our client’s ten-year-old and two-year-old sons were removed following her arrest. We ultimately prevailed on the 1028 that spanned across seven court appearances over seven weeks. The hearing consisted of two witnesses for ACS and one witness for us (our client).  The Judge was unavailable for three weeks in the middle of those seven weeks, further delaying the hearing. The children, who had never been separated from one another, were split into two different kinship foster homes.  Although they were kinship, the two foster parents did not live near each other, and it wasn’t until the judge awarded unsupervised time (about halfway through the hearing) that the children had meaningful sibling visitation. Additionally, the eight-year-old had been attending school across the street from his home before his removal. ACS never ensured that he received bussing from his foster home, despite their legal obligation to do so (and a court order by the Judge to do so). For one month, he commuted over an hour to school and regularly missed the daily school breakfast.

 

Increased Backlog in Brooklyn Family Court Resulting in Long Delays in Resolving Cases.

 

With the increase in filings and emergency hearings, judges’ calendars are backlogged and fact finding trials are being adjourned for months at a time, even when parents and children are separated from each other. Parents come to court repeatedly despite delays in their case, compromising their employment, delaying visits with their children who they are separated from, and often causing them to miss mandated service requirements.  These are some examples of delays:

 

  • In a case filed in December 2016, the child was removed from our client. The fact finding trial commenced in October 2017 and was adjourned six times after that. The most recent adjournment was due to the court hearing an emergency hearing on an unrelated case. This month, the child was released to both parents. However, the case remains open and the trial is now adjourned to January 2019 – two and a half years after the case was filed.

 

  • In a case filed in October 2016, the trial was originally scheduled for September 2017 but was delayed because the court was unavailable. The case was adjourned to December 2017 when it was again adjourned due to the court’s unavailability. The trial commenced in May 2018 for 30 minutes. The matter was adjourned to a second date in May 2018 for an hour. After an hour of testimony, the hearing was adjourned to June 2018. On the June date, the court informed all counsel that it was unavailable and adjourned to November 2018. Again, the court was not available on this date and the trial was adjourned a fifth time to December 2018, over two years from when it was initially filed.

 

  • In a case filed in April 2017, the trial commenced that November for one hour. Then, the trial was adjourned for three months to February 2018. In February 2018, the court did not have the trial time available and the trial was adjourned a second time to June 2018. In June, the trial continued for one hour and was adjourned a third time to February 2019, 15 months after the start of the trial.

 

Another reason that fact findings are being delayed is that attorneys for ACS are struggling with too many cases and do not turn over discovery on time. These are some examples:

 

  • In a case filed on September 20, 2017, the trial was scheduled a year later on September 20, 2018. However, it could not go forward on that date because ACS had not provided the discovery. The trial was rescheduled for February 2019, but ACS then missed the new discovery deadline of October 23, as well as a follow-up deadline of November 9. At this time, critical discovery has still not been provided and the February 2019 trial date appears to be in jeopardy. The subject child in this case, who has special needs, remains in non-kinship foster care even though the child’s lawyer believes the allegations are in error and supports the child going home.

 

  • In a case filed on December 5, 2017, the trial was scheduled for October 2018, but could not proceed because ACS had not provided discovery despite numerous requests. The trial has been rescheduled for February 2019, but ACS has already missed the new discovery deadline meant to get the case on track. ACS finally provided discovery earlier this month on November 9, 2018, approximately eleven months after the filing.

 

  • In a case filed on May 24, 2017, the trial was scheduled for over a year later on November 7, 2018. Despite several requests, discovery was not provided until the very day of trial. Given the delays, the judge insisted that the trial go forward. The trial started and was then adjourned to March 4, 2019 for continued proceedings.

 

  • In a case filed on December 14, 2017, the October 2018 trial had to be adjourned because ACS had not provided discovery. ACS provided the records the day after the missed trial date. The case is now adjourned to January 30, 2019.

 

Unnecessary Court Filings

 

Although filing a court case can be instrumental in staving off a later removal, there are many filings that bring people into court when court intervention is not necessary and workers are using precious resources that could be better spent elsewhere. For example, we see many cases involving allegations of one-time use of excessive corporal punishment or one-time domestic violence cases (sometimes outside the presence of children) without a sufficient assessment of risk to the children and without a sufficient assessment of what services are needed for the family. In some cases, we see filings against non-parents (persons deemed “Persons Legally Responsible” for a child) where there is no longer a relationship with the parent and no contact with the children. We are also seeing more cases where marijuana use is the only allegation. In many of these cases, the family is not being given a chance to first cooperate with preventive services and ACS is not working with the family to find services prior to filing. Many of these cases are also resulting in requests for remands or exclusions without ACS making efforts to keep the family together.

 

Recommendation: ACS should end its punitive response to marijuana. ACS should examine its approach to cases involving allegations of drug use and develop policies and practices to ensure that ACS intervenes and files a Family Court case only where there is actual evidence that a parent’s drug use is harming or poses a risk of harm to the children and referrals for costly, time consuming treatment programs are made only when unnecessary. Children should not remain in foster care solely on the basis of positive tests for marijuana where there is no evidence that the parent was under the influence in the presence of the children. ACS should train workers on the nature of addiction and about harm reduction programs that use a public health approach, identify drug treatment programs that provide services in the home or outside work hours and permit families to continue to reside together so that a parent does not have to choose treatment over his or her family and children are not unnecessarily placed or remain in foster care because a parent needs treatment.

 

Our experience is that referrals for services are very delayed prior to filing and after filing of the petition, especially where children are released to parents or relatives and ACS is monitoring the family. This also causes frequent adjournments in court and clogs the court system. We are seeing many cases in which ACS files a petition and seeks court ordered supervision but then provides the family with no services for months. ACS’ inaction in these cases suggests that they are not truly concerned about an imminent danger to the children, which begs the question as to why court and ACS resources are being used in the first place.

 

Article 10 Pre-Petition Advocacy Prevents Removals

 

Pre-petition access to counsel helps prevent unnecessary removals of children from their families and avoids unnecessary Family Court litigation by giving parents who are under investigation by ACS access to expert legal advice and social work services before ACS seeks to remove children or files an Article 10 petition in Family Court.

 

Recommendation: We strongly urge the City Council to fund this important work and ensure that parents are aware of their rights during an investigation and are given every opportunity to keep their children safely at home with them.

 

BDS currently engages in pre-petition advocacy on a limited basis on behalf of current clients of BDS or people who come to our community office. Through legal advice and informal advocacy, we are often able to resolve ACS cases in ways that prevent unnecessary removals without court involvement.

 

In one recent case, the family originally came to ACS’s attention because of abuse allegations which turned out to be unfounded. However, in the course of the investigation ACS discovered that the child had many school absences and began investigating the mother for educational neglect. The mother reached out to our office, and we assigned a social worker to advocate for her. The social worker discovered that the child had significant special needs and his mother had been transferring him between different schools hoping to find a school that could meet his needs. After BDS helped her obtain a placement for the child in a special education school, the child’s attendance improved and the case was resolved without an Article 10 petition ever being filed.

 

Through our criminal practice, BDS has also been able to engage non-custodial parents in cases in which they would not otherwise have taken part in court proceedings, thus expanding the family resources available and improving outcomes for children and families. For example, our Mandarin-speaking staff has worked with numerous immigrant families in which a parent works out-of-state for long periods of time. Between the geographic distance and the language barrier, ACS is often unable to communicate with these parents or provide notice of a pending case. In many of these cases, our staff has successfully reached out to these parents and explained the court process allowing them to make informed choices about how to participate in Article 10 proceedings regarding their children.

 

Most parents involved in an ACS investigation are unlikely to have access to counsel or an advocate/social worker to assist them. We often see petitions filed in situations in which earlier access to counsel could have resolved the underlying issues and prevented the Article 10 petition from being filed entirely.

 

For example, BDS currently represents a young mother in a case alleging educational neglect and lack of stable housing. The family was homeless and had been bounced between various shelters all over New York City for most of the school year. The Department of Homeless Services repeatedly found the family ineligible for shelter on the grounds that they could reside with the maternal grandmother, who herself had an ACS case when our client was a child; our client had been removed from her care due to maltreatment. Our client was scared that her own children would be unsafe living in the same home with her mother, so each time she was found ineligible for shelter she returned to the PATH intake office to reapply. The negative effects on school attendance for families being found ineligible for shelter and bounced around the city between different placements is well documented.[13] Our client wanted to minimize disruption in her daughter’s schooling by waiting until they finally obtained stable housing to enroll her in the local school. But that process took far longer than she anticipated. In the meantime, ACS had received a report that the nine-year-old had not been attending school, and when they tried to investigate, they were unable to make contact with the mother because she was moving around. After filing, BDS was immediately able to assist her in establishing her shelter eligibility and obtaining a stable shelter placement. She enrolled her daughter in school, and her daughter finished the school year and was promoted to the next grade. If BDS had been able to assist this mother when the ACS case was first called in, we could have helped her establish shelter eligibility so that she would have had a place to stay and enroll her daughter in school, eliminating the need for an Article 10 filing entirely.

 

Organizational providers of parent representation should be funded to provide pre-petition representation. We could operate a hotline for parents who are the subject of an ACS investigation and parents could receive legal advice and, where appropriate, social work advocacy. Our social workers would be made available to attend conferences with parents prior to filing and immediately intervene to provide services and afford the parent the benefits of BDS’s resources. Often the involvement of social workers in ACS case conferences results in better outcomes by increasing the parent’s participation and by helping to inform a positive outcome. This facilitates the creation of service plans that better reflect the particular needs of the family, preventing unnecessary litigation and keeping children safely at home. Expanding this advocacy to include parents who are the subject of ACS investigations would expand these benefits to more families, thus obviating the need for removals and court involvement in many of these cases.

 

Thank you for your time and considering BDS’ comments. If you have any additional questions, please reach out to Lauren Shapiro at lshapiro@bds.org or 347-592-2510.

 

[1] These are also called Article 10 proceedings after the article of the Family Court Act which governs abuse and neglect proceedings.

[2] New York City Administration of Children’s Services Community Snapshots, (2010, 2011, 2013); retrieved from: http://www.nyc.gov/html/acs/html/statistics/statistics_links.shtml.

[3] New York City Administration of Children’s Services, Racial Equity & Cultural Competence Committee. available at https://www1.nyc.gov/site/acs/about/racial-equity-cultural-competence.page

[4] See, e.g., American Academy of Pediatrics, AAP Statement Opposing Separation of Children and Parents at the Border (July 2018), https://www. aap.org/en-us/about-the-aap/aap-pressroom/Pages/ Statement Opposing Separation of Children and Parents.aspx (explaining that “highly stressful experiences, like family separation, can cause irreparable harm, disrupting a child’s brain architecture and affecting his or her short- and long-term health”); Dr. Dana L. Sinopoli & Stephen Soldz, Petition from Mental Health Professionals: Stop Border Separation of Children from Parents!, https://childsworldamerica.org/stop-border-separation/stop-border-separation-text-preview/ (last visited June 19, 2018) (signed by 9,325 mental health professionals as of 6/19/18) (“To pretend that separated children do not grow up with the shrapnel of this traumatic experience embedded in their minds is to disregard everything we know about child development, the brain, and trauma.”); Harold S. Koplewicz, Separating Families and Creating Trauma, Child Mind Institute (June 2018), https://childmind.org/blog/25095/ (“Every age is affected differently. In infants, toddlers and preschoolers, forced separation is almost worse than physical harm. Their major developmental task — attachment to caregivers — is interrupted. This attachment bond functions as a blueprint for all future relationships and their primary coping strategy. Removing a parent removes a very young person’s only method for regulating emotion and learning to respond to the world. These children are left confused and afraid, setting the stage for the chronic and repeated misfiring of their fear response.”)

[5] American Academy of Pediatrics, AAP Statement Opposing Separation of Children and Parents at the Border (July 2018), https://www. aap.org/en-us/about-the-aap/aap-press-room/Pages/StatementOpposingSeparationof ChildrenandParents.aspx (explaining that “highly stressful experiences, like family separation, can cause irreparable harm, disrupting a child’s brain architecture and affecting his or her short- and long-term health”)

[6] See N.Y. Soc. Serv. Law § 384-b (1)(a)(ii).

[7] N.Y. Soc. Serv. Law § 384-b(1)(a)(iii).

[8] See, e.g. Reva I. Allen, Alex Westerfelt, Irving Piliavin, & Thomas Porky McDonald, Assessing the Long Term Effects of Foster Care: A Research Synthesis (Child Welfare League of America, 1997), cited in Allon Yaroni, Ryan Shanahan, Randi Rosenblum, & Timothy Ross, Innovations in NC Health and Human Services Policy: Child Welfare Policy, VERA Institute of Justice Policy Briefs, Jan. 2014, available at http://www.nyc.gov/html/ceo/downloads/pdf/policybriefs/child-welfare-brief.pdf.

[9] Joseph J. Doyle, Child Protection and Child Outcomes: Measuring the Effects of Foster Care, 97 Am. Econ. Rev. 1583, 1584 (2007) [hereinafter “Doyle 2007”].

[10] Family Court Act Section 1024

[11] Family Court Act Section 1026

[12] ACS Policy # 2011/01: Conducting Emergency Removals (2/23/11)

 

[13] See, e.g., Elizabeth A. Harris, For New York City’s Homeless Children, Getting to School Is the Hard Part, N.Y. Times, Oct. 10, 2016, available at https://www.nytimes.com/2016/10/11/nyregion/for-new-york-citys-homeless-children-getting-to-school-is-the-hard-part.html.

BDS TESTIFIES BEFORE NEW YORK SENATORS LUIS SEPúLVEDA AND GUSTAVO RIVERA’S PUBLIC FORUM ON NEW YORK STATE’S PAROLE PROCESS, STRUCTURE OF THE PAROLE BOARD, AND DATA INDICATING SYSTEMIC BIAS IN PAROLE DECISIONS

TESTIMONY OF:

Samuel Hamilton – Reentry Advocate

Brooklyn Defender Services

Presented before

New York Senators Luis Sepúlveda and Gustavo Rivera

Ranking Members of the Standing Committee on Crime Victims, Crime and Corrections and the Senate Health Committee

Public Forum on New York State’s Parole Process, Structure of the Parole Board, and Data Indicating Systemic Bias in Parole Decisions

November 27, 2018

 

My name is Samuel Hamilton and I am a reentry advocate at Brooklyn Defender Services. Our organization provides multi- disciplinary and client-centered criminal defense, family defense, immigration, civil legal services, social work support and advocacy in nearly 35,000 cases involving indigent Brooklyn residents every year. Over the past 22 years, we have represented close to half a million people in criminal cases in Kings County, New York. As part of the reentry team, I provide comprehensive and individualized support for people upon release from prison or jail, and direct advocacy on behalf of our clients while they are incarcerated. BDS’ reentry team works toward promoting self-rehabilitation, a parole system that rewards good behavior, and mitigating lengthy sentences.

I thank New York State Senators Luis Sepúlveda and Gustavo Rivera for allowing me the opportunity to speak on the current parole system in New York State. I also appreciate your continuous dedication to creating a more balanced parole system that is centered on transformative rehabilitation and restorative justice rather than retributive punishment. As a reentry advocate and someone who has experienced the parole process, I now support people as they mitigate the compounding trauma and disruption caused by incarceration. Reentry and pre-entry (assisting people to prepare for life while incarcerated, so that they develop a goal-oriented plan towards rehabilitation and making amends) comes with a host of extreme hardships and so-called collateral consequences, our team works with individuals to overcome these barriers and successfully self-rehabilitate and reintegrate into their communities.

Recommendations

Brooklyn Defender Services (BDS) strongly urges the New York State Legislature to:

  • Pass S8581 (Hoylman)/A6354A (Weprin), which will create a process of release for people who have served at least 15 years of their sentence and are 55 years or older.
  • Pass Presumptive Parole S8346 (Rivera)/A7546 (Weprin), which will require the Board of Parole to release a person to community supervision on their second appearance before the Board, unless that person poses an unreasonable and current risk to public safety.
  • Diversify the expertise of individuals who serve on the Parole Board and ensure that it is fully staffed. Currently, the Board includes many former law enforcement officers and others who perpetuate a retributive criminal legal system. The Board needs members who possess education and expertise (i.e. social workers, mental health practitioners, public defenders, etc.) in all aspects of the criminal legal system and are trained in restorative and transformative justice praxis. Also, only 12 of 19 parole seats are currently filled, which exacerbates the assembly line nature of the process.
  • Divert people accused of technical violations and low-level offenses to alternative programs. In order to reduce unnecessary re-incarceration and expenses to the State and City, we need to invest in reentry community programs led by those who have been through the system and can provide individual case planning and management. We also need to eliminate carve-outs that continue to isolate higher risk and high need individuals from reform efforts, such as the one for people on parole in Mayor de Blasio’s marijuana non-enforcement policy. These exclusions hinder all efforts for successful reintegration into the community. Responses for low-risk parole violations should be expanded community-based supports. More frequent visits or accommodations that address the root cause (i.e. figuring out why an individual did not make curfew) rather than a complete disruption to all progress. Resources should be directed towards expanding opportunities (housing, education, jobs, and more), so that we address criminogenic factors. Returning to jail for any amount of time will not address the reason why an individual committed a technical violation such as failing a drug test, or missing an appointment with their parole officer. The issue of technical violations is complex because in some instances the violation can occur in conjunction with a new crime or the violation can be because of arrest for a crime.[1] That being said, individuals should not be incarcerated once deemed “delinquent” due to technical violations. As a “delinquent” a warrant is generated and the individual can be sent to jail until they are scheduled for a Preliminary Hearing. In these cases, people should instead be connected to social services, drug treatment programs, more frequent visits, and other non-punitive response rather than spending any time in jail.

Background

By countless indicators, incarceration throughout the United States, including in New York, is a historic and global anomaly. Until the spread of mandatory minimum sentencing regimes that developed as part of the War on Drugs in the 1970’s and 1980’s, the national incarceration rate remained relatively stable—between 100 and 200 incarcerated people per 100,000 people—for about a century. Then, it began to rise steeply and, following the Sentencing Reform Act of 1984, skyrocketed before leveling out at above 700 incarcerated people per 100,000 people in recent years.  In New York State, the average rate was less than 75 incarcerated people per 100,000 people for a century, and more than quintupled during this period. The current incarceration rate in New York is lower than that of most other U.S. states, and fell by a quarter since its peak in 1999. Still, it is nearly double that of Maine, which has the lowest incarceration rate and the lowest number of violent crimes per capita in the nation, and about three and a half times that of Germany.

Today, there are an estimated 2.3 million people incarcerated nationwide and approximately 75,000 people in prisons and jails across New York State.[2] As is often said, it is not only the individual that does time, but their entire family and, I would add, their community. Over the past decade, the overall state prison population decreased in the last decade and a half. Simultaneously, however, there was an increase in people over 50 years of age in NYS prison; as of 2016 19.4 percent of the population was over the age of 50.[3] The primary contributing factors to the increase in the aging prison population are retributive sentencing and the underuse of release mechanisms such as parole or compassionate release.

Each year, over 10,000 New Yorkers are kept in prison regardless of their rehabilitative achievements while incarcerated because of the arbitrary parole standards for release.[4] Individuals who are sentenced to indeterminate sentences become eligible for parole after completing the minimum term. Executive Law 259-i(c)(A) stipulates the criteria the Parole Board must consider when approving or denying parole such as: institutional record, release plan, crime victim statements, seriousness of the offense, etc. If denied, a person has to wait a maximum of two years before they can appear before the Board again. This process can continue every two years until one of the two things happen: 1) the applicant is granted parole[5], or 2) the applicant has served their maximum term, including, in the case of a person with a life sentence, once the person has died while incarcerated. Those most impacted by the continuous two-year “hits” are aging people in prison. They have usually been convicted of serious crimes, often including serious violent crimes, which make their release more of a political risk, but not a risk to public safety. New York’s parole process often serves as a barrier to release because too often the original crime of conviction – the one thing an incarcerated person cannot change – becomes the sole deciding factor.

Underuse of Parole

Far too often, New Yorkers, especially older adults, are dying in prison after being denied parole multiple times. John Mackenzie’s tragic death is symbolic of a broken parole system that continues to undermine the presumed rehabilitative nature of prisons. John, like most incarcerated elders, was an extraordinary person who took full responsibility for his serious crime and did everything to make amends. He started a Victims Awareness Program, obtained multiple college degrees, and helped countless young men transform their lives through group therapy and direct mentorship. He would have been a crucial asset to the community if given the chance.[6] In fact, Justice Maria Rosa of State Supreme Court in Dutchess County held the Parole Board in contempt for refusing to give any justification for denying Mr. Mackenzie’s release beyond his original crime, after throwing out an earlier denial and ordering a new hearing, at which the Board’s decision was “virtually the same.”[7] The New York State parole risk assessment, COMPAS,  had found that 70 year old John Mackenzie posed absolutely no threat to society, but he was still denied parole for a 10th time. A week later, he hanged himself with a sheet. Unfortunately, John’s story is not an anomaly; many elders in prison have self-rehabilitated and some have created programs that exist to this day and directly inform the strategy for numerous nonprofits, grassroots and advocacy. John Mackenzie’s is one of more than 1,000 deaths in New York State prison since Governor Cuomo took office.[8]

Though the Board Chair has stated in testimony before the Legislature that the parole decision-making process is neutral and each decision follows the guidelines mandated by law, for John and many others, this has not been their experience. The factors that must be considered include the seriousness of the offense, accomplishments while incarcerated, criminal history, and any “mitigating and aggravating factors.”[9]  However, as mentioned earlier, there are approximately 10,000 parole denials per year, generally after curt and remote hearings by video, after which the nature of the crime is too often the sole basis for the decision.[10] Notably, a New York Times investigation from 2016 found that Black and Latinx people were denied parole at significantly higher rates than white people.[11] In short, despite the statutory mandate which stipulate that the Parole Board has to conduct a complete assessment of a person rather than centering only their initial crime of conviction, we see a consistently demoralizing process that repeatedly denies parole to eligible people who, by law, should be released.

Racial Disparities in Incarceration Rates and Parole Decisions

Prior to the enactment of S8647 (Sepúlveda)/A2471 (Sepulveda), policymakers and advocates had little statistical data on the demographics of people who appeared before the Board and those who were granted or denied release. But with this new law, we will now bolster what we already know about the system’s stark and persistent racial disparities in parole decisions (as highlighted by the New York Times[12]), incarceration rates and every other aspect of the criminal legal system. Black people represent approximately 18 percent of the total New York State population and 50 percent of those incarcerated in our state prisons.[13] In the century before the 1973 Rockefeller Drug Laws, Black people were incarcerated at rates between three and six times that of whites in New York. After the drug laws took effect, the disparity jumped to a rate of twelve to fourteen times that of white people. The incarceration rate of white people has remained relatively stable throughout New York history, despite the harsher sentencing regime implemented in the last decades of the twentieth century.[14] Importantly, all marginalized communities are disproportionately impacted by mass incarceration. For example, a survey on transgender discrimination conducted by the National Gay and Lesbian Task Force found that 16 percent of respondents reported having been incarcerated at some point in their lives.[15] I urge policymakers to consider the data when the first report from DOCCS is published and take action to end disparate treatment and impacts of parole policies and practices.

State Technical Parole Violations

As we talk about improving the process of determining release into community supervision, it is imperative we recognize and address the impending risk of re-incarceration for people on parole. A Marshall Project survey of 42 states conducted in 2017 found 61,250 people incarcerated for only technical parole violations such as breaking the rules of parole rather than being convicted of a new crime.[16] That number did not include county and local jails, where thousands more are likely to be held.

New York City Jails

Though the New York City jail population declined over the years, one population has increased: people held for technical parole violations. From 2014 to June of 2018, there was a 26% increase of the number of people incarcerated on parole violations in New York City jails.[17] Individuals on parole must comply with supervisory requirements such as reporting to a parole officer, having unannounced inspections of their home or place of employment, curfews, and refraining from contact with people with criminal records, etc. In addition to these conditions, people on parole must pay a monthly supervision fee of $30. Failure to pay the supervision fee can be used as a reason to deny early discharge or a person’s application for a Certificate of Relief from Disabilities or a Certificate of Good Conduct, further compounding the harmful impacts of the criminal legal system.[18] Failure to comply with any of the conditions can result in re-incarceration, even for missing a visit or possessing low levels of marijuana (an offense that results in a summons for most and is on its way to being legalized). A Columbia Justice Lab report found that on November 16, 2017 there were 1,460 people in New York City jails for state parole violations (technical violation and arrests); 81% were in for technical violations, misdemeanor, or non-violent felonies—a category of offenses that would be better addressed through community-based programs rather than re-incarceration, as they often are for people who are not on parole. [19] Importantly, as the report notes, Black people are far more likely to face re-incarceration: “While the incarceration rate for white people on parole who are detained in New York City jails was 1.30 per 100,000 white New York City residents on January 18, 2018, the rate for African-Americans was a staggering 16.09 per 100,000 African-American New York City residents.”

NYS DOCCS Facilities

As mentioned above, New York’s prison population has been decreasing; however, similar to New York City jails, the population for parole violations has experienced an increase. In 2012, 9,372 people were released from DOCCS facilities onto parole. Within three years of release 43 percent (4,074) returned for parole violations and 8.5 percent (792) were returned for new crimes[20]. Those re-incarcerated for parole violations made up 17.5 percent of the released cohort for that year.

To me and other advocates on the ground, this is reflective of a revolving door of incarceration. As we work together to reform the parole process, we also need to transform the other mechanisms that perpetuate interaction with the criminal legal system, including policing practices and parole enforcement practices.

 

Conclusion

Research show that rates of recidivism decrease significantly with age, with the older adult population having the lowest risk of reoffending. Considering the data, academic research, reports from practitioners, and testimonies from incarcerated and formerly incarcerated people, it is clear that incarcerating the elderly and infirm is, among other things, fiscally irresponsible, morally wrong, and provides no restorative justice to the individuals harmed by the initial crime.

If you have any questions or comments about my testimony, please feel free to reach out to Saye Joseph at scjoseph@bds.org or 718-254-0700 ext.206.

[1] Columbia University Justice Lab, Less is More in New York: An Examination of the Impact of State Parole Violations on Prison and Jail Population, January 29, 2019, available at: http://justicelab.iserp.columbia.edu/img/Less_is_More_in_New_York_Report_FINAL.pdf

[2] This figure does not include more than five million people being formally surveilled through parole, probation and other forms of supervised release. Peter Wagner and Wendy Sawyer, Mass Incarceration: The Whole Pie 2018, March 14, 2018, available at: https://www.prisonpolicy.org/reports/pie2018.html.

[3] There were 10,337 people in this older adult category as of 2017, majority of who are Black and Latinx. Office of the New York Comptroller Thomas P. DiNapoli, State Comptroller, New York State’s Aging Prison Population, April 2017, available at https://www.osc.state.ny.us/reports/aging-inmates.pdf.

[4] Scott Paltrowitz, Parole Review Process has Serious Shortcomings, December 6, 2013, available at: http://www.correctionalassociation.org/news/parole-review-process-has-serious-shortcomings

[5] There are work release program, but only applicable to people with non-violent offenses. Other options are clemency and pardons by the Governor.

[6] Victoria Law, Suicide of 70-year old John Mackenzie after Tenth Parole Denial Illustrates Broken System, August 9, 2016, available at https://www.villagevoice.com/2016/08/09/suicide-of-70-year-old-john-mackenzie-after-tenth-parole-denial-illustrates-broken-system/.

[7] A Challenge to New York’s Broken Parole Board, June 13, 2016, available at https://www.nytimes.com/2016/06/13/opinion/a-challenge-to-new-yorks-broken-parole-board.html.

[8] Victoria Law, Cuomo’s Parole Board Creates A System of Hopelessness, Advocates Say, August 7, 2018, available at: http://gothamist.com/2018/08/07/cuomo_parole_protest.php

[9] Testimony of Tina Stanford, Chairwoman of NYS Board of Parole. Before the NYS Assembly Standing Committee on Correction, December 4, 2013, available at http://www.doccs.ny.gov/Commissioner/Testimony/Testimony_Board_of_Parole_Tina_Stanford.pdf.

[10] Scott Paltrowitz, Parole Review Process has Serious Shortcomings, November 6, 2013, available at http://www.correctionalassociation.org/news/parole-review-process-has-serious-shortcomings.

[11] Tyler Pager, Cuomo Ordered an Investigation of Racial Bias in Prisons. Nearly 2 Years later, It’s Not Done, September 4, 2018, available at: https://www.nytimes.com/2018/09/04/nyregion/racial-bias-prisons-cuomo.html

[12] Michael Winerip, Micahel Schwirtz, Robert Gebeloff, For Blacks Facing Parole in New York State, Signs of a Broken System, December 4, 2016, available at: https://www.nytimes.com/2016/12/04/nyregion/new-york-prisons-inmates-parole-race.html

[13] Solitary Confinement in New York: The Facts, The New York Campaign for Alternatives to Isolated Confinement, available at http://nycaic.org/facts/.

[14] Ernest Drucker, A Plague of Prisons 60-61 (New Press, The 2013).

[15] Jaime M. Grant, Ph.D., Lisa A. Mottet, J.D. & Justin Tanis, D.Min., Injustice at Every Turn, Nat’l Ctr. for Transgender Equal. & Nat’l Gay & Lesbian Task Force 2011.

[16] Eli Hager, At Least 61,000 Nationwide are in Prison for Minor Parole Violations, April 23, 2017, available at: https://www.themarshallproject.org/2017/04/23/at-least-61-000-nationwide-are-in-prison-for-minor-parole-violations#.iW7kZwNwP

[17] New York City Mayor office of Criminal Justice, available at: http://www.closerikers.org/wp-content/uploads/2018/07/MOCJ-Path-to-5K.pdf

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

[19] Columbia University Justice Lab, Less is More in New York: An Examination of the Impact of State Parole Violations on Prison and Jail Population, January 29, 2019, available at: http://justicelab.iserp.columbia.edu/img/Less_is_More_in_New_York_Report_FINAL.pdf

[20] The initial data does not specify the offense as misdemeanor, non-violent felony, or felony. New York State Corrections and Community Supervision DOCCS Fact Sheet, November 1, 2018, available at: http://www.doccs.ny.gov/FactSheets/PDF/currentfactsheet.pdf

News

THIS #GIVINGTUESDAY, HELP BDS’ CLIENTS PAY THEIR IMMIGRATION FEES.

Our immigrant clients need your help.

Exorbitant application fees are often the only thing keeping them from obtaining lawful status, supporting their families, and living a life out from under the shadows and fear of deportation.

This Giving Tuesday, you can help break this barrier by donating to our Immigration Fees Fund.

Your support has already helped dozens of our clients pay for DACA application forms ($495), green card renewals ($540), work authorizations ($410), medical exams ($175-300), and more.

Here are some of their stories:

  • BDS helped a father of three facing deportation win his immigration case and stay in the United States. However, because he could not afford the fee required for him to work, his family faced eviction from their home. Our Immigration Fees Fund helped him get authorization and support his family.
  • A mother struggling with poverty and homelessness lost her documents that proved her lawful immigration status, which she needed to apply for Medicaid. Our Immigration Fees Fund covered the cost of her green card application so she could access the benefits needed to keep her family together.
  • A father was facing the very real possibility of detention and/or deportation if his I-130 immigration application (based on his children’s U.S. resident status) wasn’t filed ASAP. Out of work because of a recent car accident, the $535 fee was out of the question. Donations to our Immigration Fees Fund covered this cost.
You can help more families like these with a one-time or recurring donation to our Immigration Fees Fund. We thank you for your support.

BDS TESTIFIES BEFORE NYC COMMITTEE ON HOSPITALS, COMMITTEE ON MENTAL HEALTH, DISABILITIES AND ADDICTION AND COMMITTEE ON CRIMINAL JUSTICE OVERSIGHT HEARING ON CORRECTIONAL HEALTH

TESTIMONY OF: 

Brooke Menschel

BROOKLYN DEFENDER SERVICES

Presented Before 

The New York City Council Committee on Hospitals, Committee on Mental Health, Disabilities and Addiction and Committee on Criminal Justice

Oversight Hearing on Correctional Health

November 15, 2018

My name is Brooke Menschel and I am the Civil Rights Counsel for Brooklyn Defender Services. BDS provides comprehensive public defense services to nearly 35,000 people each year, thousands of whom are detained or incarcerated in City jails in connection with their criminal cases. Thank you for the opportunity to address the Council and share with you some of our concerns about medical and mental health care, based on the direct accounts of people we represent who are incarcerated in City jails.

Across the country, jails and prisons have become the largest provider of health care, including mental health care. New York City is no exception.  Tens of thousands of people pass through our City’s jails each year, many of whom have acute health needs or are otherwise especially vulnerable. A 2009 National Institutes of Health study noted that chronic conditions—including HIV and diabetes—are more prevalent among incarcerated people than in the general population.[1] These individuals frequently end up incarcerated specifically because they cannot access adequate care on the streets. Once a person is incarcerated, providing adequate care is no longer a choice: the City is obligated to ensure that adequate medical and mental health care is readily accessible. When they are ultimately released after any period of time, the City must ensure they can access care in their communities. The alternative is a vicious cycle that fuels problematic behavior in our communities and the NYC Department of Corrections remaining one of the largest medical and mental health care providers in the country for years to come.

The problem posed by lack of access to medical and mental health care in our City’s jails is part of a continuum that starts long before people enter the criminal justice system and extends far beyond their discharge. Disparities in healthcare options and outcomes disproportionately impact poor communities and communities of color, resulting in disproportionately high rates of chronic conditions. Similarly, inadequate community-based mental health and substance use treatment funnel people struggling with mental illness into handcuffs, jails and prisons. For these individuals, time in City jails frequently exacerbates their conditions, as illness and medical needs are all too often met with violence and isolation rather than appropriate care. After serving time in jail or prison, people who return to their communities frequently lack adequate healthcare infrastructure and affordable and supportive resources. These inadequacies lead to people falling through the cracks and too often tragic results – either irreversible sickness and death or the churning cycle of incarceration, lapses in treatment, homelessness, and recidivism.[2]

Mr. F  suffers from paranoid schizophrenia that was not adequately controlled. While incarcerated, Mr. F decompensated further and began experiencing confrontations with custody staff, many of whom, lacking adequate training to de-escalate incidents involving individuals in his mental state, responded aggressively to Mr. F. During his incarceration, Mr. F received numerous infractions, lost various privileges, and spent several months in the solitary unit for people with mental illness at the George R. Vierno Center (GVRC) on Rikers Island. This isolation caused Mr. F to decompensate further. Eventually, Mr. F’s condition worsened and he was transferred into another isolation unit, this one for people with mental illness and deemed violent. There, Mr. F was isolated further and experienced worsening depression, anxiety, anger, lethargy, loss of appetite, frustration, hopelessness, insomnia, physical pain, and hallucinations associated with his schizophrenia. In no small part due to his prolonged isolation, Mr. F decompensated so profoundly that he was eventually found unfit to proceed in his criminal case and had to be hospitalized in order for him to advance his case. What is the purpose of pre-trial detention if not to ensure people make it to court?

As you consider how best to advance correctional health in New York City, we urge you to view access to care in jails and prisons in the context of the larger continuum. Decarceration while investing in healthy communities will result in a safer, healthier society that will benefit not only the people we represent but the community at large.

Access to care has long been and remains a fundamental concern for our clients.[3] In a correctional setting, our clients’ access to medical and mental health treatment is frequently hamstrung by distinct but interconnected issues: DOC practices, ostensibly in the interest of security, often come at the expense of access to care for clients in need; Physical design and staffing resources often impede clients’ ability to readily access the treatment they require; and administrative hurdles frequently hamper clients in their attempt to access indicated medical or mental health services. We voice our support for the comments of directly impacted individuals and other organizations that are testifying today, including The Sylvia Rivera Law Project, The Legal Aid Society, and the Urban Justice Center. They each offer tremendous insight and expertise regarding the current state of affairs for clients incarcerated in New York City.

Access to Care as a Linchpin to Improving Security

Contrary to the assertions of DOC staff that security and access to care must be balanced, we strongly believe that the latter is essential to the former.

From protecting public safety to fighting disease and promoting physical and behavioral health, and from fine-tuning budgets that trim waste to investing in cost-effective programming with long-term payoffs, the health care that prisons provide to incarcerated individuals and the care that prisons facilitate post-release is a critical linchpin with far-reaching implications.[4]

The two central goals must coexist to ensure a safe, healthy, and effective system. Unfortunately, far too often our clients’ mental health or medical needs take a backseat, allegedly because of DOC’s security mission. Correctional staff regularly serve as an impediment, rather than a conduit, to care. Security alerts and classifications frequently interfere with access to vital treatment and services. Mental health and medical practitioners are stymied by security guidelines when providing indicated treatment.

Correctional Staff as Gatekeepers

Correctional officers serve in many respects as gatekeepers to medical and mental health care. Without the requisite knowledge or training, officers who block access to care pose serious dangers to the well-being of people in custody. For instance, to access medical care in a DOC facility, an individual must submit a “sick call” request to officers in their housing unit, who are responsible for forwarding requests to medical staff. Under this arrangement, correctional staff can and do fail to forward sick call requests to the medical staff, or falsely claim that an individual “refused” to be brought to their appointment, as a tool of control or punishment. Our clients have been denied sick call in retaliation for complaining about correctional staff, in response to misbehavior, and in an effort to ostracize those with high profile cases.

One BDS client who had filed complaints against correctional staff was repeatedly denied sick call as well as escorts to the medical clinic. Although he attempted to access care, correctional staff documented that he “refused” care. As a result of being denied timely medical treatment for a cut, the client developed gangrene which nearly required amputation. Denying access to medical care is a particularly cruel form of punishment that nearly cost a man his limb in this case.

Regular and accurate reporting on the availability of sick call requests in an important step to making the system function better. BDS supports Int. No 1236 and the Council’s continued support for data collection. Information pertaining to sick call is vital to understanding lapse in care and access to services for our clients. In addition to the information already required by the legislation, we urge the Council to require reporting on the “reason why sick call was not completed” and allow for a qualitative approach to why a person was not able to make it to an appointment. Far too often our clients’ records reflect that they “refused” care because they were in court, visiting with family, or were never told of a medical appointment. These refusals impact our clients, who are then painted as malingering, lying or attention seeking.

Lockdowns Preventing Care

Similarly, correctional staff regularly delay or entirely prevent access to care for entire units allegedly in the name of security. For example, movement is frequently halted when a facility goes on lockdown, sometimes for extended periods. In its January 8, 2018 report on lockdowns, the Board of Correction revealed that, “Despite a 32% decrease in the DOC average daily population (ADP) since 2008, there has been an 88% increase in lockdowns.” The Board found that lockdowns often result in violations of BOC’s Minimum Standards. During lockdowns, people are confined to their cells and generally denied any and all access to programs and services. They cannot go outside for recreation, shower, use telephones or law libraries, access religious services, attend school, or receive family or counsel visits. They are often denied medical care, including mental health care. Some clients have reported being denied toilet tissue. Missed counsel visits can require cases to be adjourned, prolonging pre-trial detention. Missed mental health treatment can result in the rapid decompensation of vulnerable people. Lockdowns amount to group punishment, with little regard to the rights or needs of people in its custody.

Limitations on Treatment as a Punishment

All too often, individuals incarcerated in City jails are denied the opportunity to access particular programs or treatment because of high security classifications, housing placements, or disciplinary consequences. These programs, which serve as powerful evidence that a person is productive, engaged and wants to participate in their own defense and well-being, are all-too-often unavailable to our clients because of alleged security concerns. One glaring example is drug treatment programs, which include a critical flaw. Broad groups of people are denied access to important programs that support people with substance use disorders because they are classified as high security by DOC or as a result of unsubstantiated gang allegations, based on no standard of evidence and with no meaningful opportunity to appeal. For instance, the substance use treatment program “A Road Not Taken” provides a supportive environment for people struggling with addiction who are housed among peers and participate in extensive programming.[5] Yet individuals identified by DOC as high classification are ineligible to participate.

In a recent case, one BDS criminal defense attorney successfully advocated that her client, who had a history of substance use, would serve reduced jail time if he participated in the ARNT program. Despite agreement of the client’s parole officer and the District Attorney, the attorney learned from Correctional Health Services that the client was denied entry into the program because of his high classification, the result of a 2007 incarceration where DOC identified him as gang affiliated. Although the client was not in a gang and was fully committed to participating in the program and turning his life around, he was not able to move forward with the agreement because of the classification.

Participation in these programs can and does impact people’s ability to fight criminal cases in court, helping them overcome disorders, participating more effectively in their own defense, and in demonstrating to the court their commitment to change. Correctional Health Services should make their programming available to all who may benefit medically, regardless of classification or sentence. Situating access to treatment and medical decision-making as the exclusive domain of healthcare providers, not DOC, is essential.

Likewise, BDS supports Res. No. 581 and encourages the City Council to support expanded treatment for people in our jails and prisons. Although the Key Extended Entry Program (KEEP) facilitates detox and manages methadone treatment for people with opioid dependency in New York City jails, people facing state prison time are excluded from the program. State prisons, which do not offer currently offer methadone management, should expand their program to include methadone treatment and other medication assisted treatment (MAT) as an important step towards creating healthier communities. 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.[6] Further, many people facing state prison time “on paper” will likely never be sent to state prison once the case reaches sentencing. Even though the parties may all be aware that prison time is unlikely, prosecutors often wait until pleas are entered to withdraw the most serious charge. 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. MAT in jails and prisons and other public health approaches to addressing 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. We urge the City to confront addiction issues by tackling the 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.[7]

Medical Complications Due to Staff Brutality and Disciplinary Consequences

BDS is equally troubled by the frequent and persistent use of disciplinary mechanisms that cause significant medical and mental health complications. For example, DOC exposes our clients to pepper spray indiscriminately, without provocation, and without regard to the medical ramifications of exposure.

One officer flew into a rage during a verbal disagreement with a young BDS client. Despite no physical threat to the officer or others, the officer unleashed her MK9 pepper spray as she chased our client 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.

Similarly, any use of restrictive housing poses serious, and lasting, dangers to our clients’ health and, in turn, their communities. Physiological conditions brought on by locking a person in a cell for 23-24 hours a day include gastrointestinal and urinary issues, deterioration of eyesight, lethargy, chronic exhaustion, headaches and heart palpitations among others.[8] The psychological trauma, including severe depression, anxiety, insomnia, confusion, emotional deterioration, and fear of impending emotional breakdown, is broadly recognized.[9] In addition to hallucinations and delusions,[10] studies consistently find that prolonged solitary induces bouts of extreme anger and diminished impulse control, leading to violent outbursts;[11] invoking the very behavior it purports to manage.

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.[12] The suicide rate in DOCCS’ Special Housing Units (SHU) is nearly six times higher than that of the General Population (GP).[13] 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.”[14] Organizations and institutions around the world, including the United Nations, multiple states, medical organizations, and correctional associations, have moved away from relying on harmful restrictive housing and we urge the City to follow suit.[15]

Physical Design and Inadequate Resources as Hurdles to Care

The resources available inside New York City jails—physical design, staffing options, and technical capacity—present additional hurdles to providing adequate care.

Physical Plant as a Barrier to Treatment

Despite the significant healthcare needs of the population they house, jails are not constructed like hospitals, which prioritize clinical space and access to providers. For instance, the Anna M. Kross Center – the 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. Although healthcare staff have established “mini-clinics” closer to housing units, these measures are merely a stop gap, and these spaces are often cramped, lack infrastructure to maintain hygiene, and do not allow for confidentiality.

More broadly, our City jails lack adequate confidential treatment spaces. The scarcity of dedicated treatment spaces near housing units is particularly detrimental to effective mental healthcare delivery. Many people are understandably unwilling to candidly reflect on their struggles within earshot of other incarcerated people and custody staff, and they shouldn’t be asked to in order to receive treatment. 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.

Inadequate or Inappropriate Staffing Prevents Access to Care

Relatedly, even well-intentioned officers regularly serve as a barrier to care simply because they are unavailable. Because every incarcerated person requires an escort by a correctional officer to visit and leave the clinic, our clients are frequently stuck in limbo, unable to access treatment they know is unavailable. The unavailability of uniformed staff, who are occupied with other tasks, or otherwise unwilling to help, lead to escort shortages. In turn, those shortages frequently result in missed appointments and treatment delays. One potential fix to overcoming the inevitable competing demands on correctional staff is to create roving medical escort posts during day-shifts for officers who are not assigned to other tasks. 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.

Similarly, healthcare staff in the City jails face dual loyalty challenges, which can interfere with providing compassionate and appropriate care. Although medical and mental health providers are ethically bound to treat patients, they face an understandable pull towards their colleagues – correctional staff who they rely on to ensure 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 correction officers.

We urge the City Council to empower correctional healthcare officials to weigh in on management decisions and have unfettered authority with regard to treatment matters for all people in our city jails, unless a genuine, immediate security emergency is at play. Simultaneously expanding de-escalation and mental health first aid training among corrections staff, especially those who are in non-mental health designated units posts, can help officers better understand how treatment interventions work and why they should be given priority.

Inaccessible Medical and Mental Health Care During Intake

Upon entering Department of Correction’s custody, our clients’ first stop is an intake unit, where they wait to be seen by Correctional Health Services for an initial medical and mental health assessment. Intake units consist of large cages, solely designed to hold people while they await their assessment with CHS and a transfer to a more appropriate housing within the facility. Regardless of medical or mental health needs, people may be held in these intake units for periods lasting as long as a week without access to a beds, sheets, showers, phones, and most importantly, medication. CHS does not provide treatment during intake but rather waits until people are assigned to a housing unit. One story outlines the horrors that can occur when housing location and lack of priority on behalf of the Department takes place:

Mr. C, who struggled with a seizure disorder and diabetes, was suffering from withdrawal when he was arrested. Due to concern about reduced insulin levels, his attorney bought him a candy bar before his arraignment. At the prosecutor’s urging, the judge set bail beyond what Mr. C could afford, and he was taken into custody. His attorney requested medical attention and our office followed up with DOC. When our client appeared in court five days later, he was visibly sicker and said he thought he would die. He had been sleeping on the floor and relying on other people’s insulin because he had not yet been examined. He was truly afraid for his life until he was released.

Our clients regularly wait several days after being taken into custody before they receive crucial medicines. Often, they do not receive the requisite care until our office advocates on their behalf. Similar lapses occur when individuals travel between jails. Whether high blood pressure medicines, inhalers, or anti-psychotic medications, these lapses can have devastating consequences.

Thes dangers are compounded for our clients with developmental disabilities and intellectual disabilities, who are among the most vulnerable in jail and prison settings. They are frequently the targets of violence, sexual violence, extortion, and abuse from staff and other incarcerated people. The intake process in the City jails does not provide any mechanism to keep these individuals safe, provide accommodations, or direct them to necessary services. Frequently, these individuals have masked their disabilities during the course of their lives and may not feel safe or able to affirmatively offer up information about their needs. Even worse, they may have an impairment that has not been identified in the community, but which nonetheless necessitates accommodation and services.

Because of DOC’s limited screening process, developmental and intellectual disabilities typically go unnoticed until our office identifies them to because our clients need accommodations. Yet because lawyers are not often clinically trained to identify such conditions and an arraignment interview is not the proper setting to do so, we likely underidentify individuals in need. Those individuals who are identified are placed in General Population housing units or in Mental Observation housing units with people who do not have the same needs. Almost without exception our clients with developmental and intellectual impairments are victimized in these settings. Additionally, because certain disabilities make it difficult to follow instructions or obey jail rules, people with developmental and intellectual disabilities may be more likely to have altercations with staff and suffer placement in solitary confinement. The result is that many clients with developmental and intellectual disabilities are victimized not only by other individuals but by the system at large.

Mr. W, who suffers from a severe intellectual impairment, was charged with a misdemeanor and initially released on bail. However, when he was found to be too intellectually disabled to participate in his own defense, the judge, over vociferous objections, remanded him to City jail pending placement with the Office for People with Developmental Disabilities (OPWDD). It took OPWDD approximately two months to ensure Mr. W’s release. At that point, OPWDD referred him for outpatient services at the very same facility at which he had received services in the past and his charge was dismissed. During his needless two-month incarceration, Mr. W was assaulted in his housing unit, suffering blows to his head and eye. Even though OPWDD determined Mr. W could safely and appropriately live in the community, he became a victim of the very criminal justice system allegedly designed to keep communities safe.

We know the Board of Correction is working with the Department to house people more efficiently and provide people with immediate access to necessary essentials like a bed and blankets. Nonetheless, our clients still face inhumane, deprecating conditions that are not only unsanitary but they prevent people from accessing basic needs, including medication and medical and mental health treatment.

Discharge Planning and Continuity of Care To Enhance the Health of Communities

Finally, in order to truly improve the health and safety of our communities, the City should ensure that treatment while in DOC custody is part of a continuum of care that starts before arrest and arraignment and continues upon discharge or release. Such a commitment will lead to healthier and safer communities and thousands of people who avoid incarceration. To that end, BDS supports the Council’s effort to improve the continuity of care upon discharge through Int. No 1236. Discharge planning should be made available, on a voluntary basis and not mandated as a condition of release or housing, to all people in the jail system. Because Health + Hospitals already plays an important role in discharge planning for many individuals in the jail system, their role should be expanded and their expertise should guide discharge planning for all people with medical and mental health conditions.  Furthermore, we would welcome enhanced discharge services for individuals released from court, particularly those people with serious medical and mental health needs.

Administrative Barriers to Accessing Care

Among the most readily fixable of the barriers to accessing care are countless rules, guidelines, policies, and practices that prove to be unnecessary and inappropriate hurdles to our clients who seek medical or mental health treatment.

Logistical Complications Prevent Mandated Treatment

One of the most common problems that our clients face is the need for treatment and appointments with outside specialty providers. While prisons and jails cannot staff a full range of specialists full-time, outside specialty appointments and follow up visits are often equally inaccessible. 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. Even when clients are transported to appointments, they are often left waiting hours in the jail intake for their escort, arrive late for appointments, and are ultimately told that they arrived too late to be seen that day. Similarly, clients who have upcoming follow-up appointments scheduled with specialists before their arrest often miss those appointments. H + H too often fails to promptly schedule and deliver follow-up visits, despite being informed of the situation by the patient and our office. Rescheduling missed appointments only compounds delays in treatment. Sufficient escorts and dedicated specialty schedulers who interface between correctional staff and specialty clinics are fundamental to address specialty care delays.

One BDS client had 2 stents around his kidneys which were scheduled 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 or any specialty appointment being scheduled. Eventually, the client developed an infection which had to be treated, further delaying the operation to remove the stents. Meanwhile, our client suffered extreme pain and became lightheaded when urinating. His appearance declined and his skin became pale. He ultimately had to be transferred to the hospital where he finally received treatment. 

Forced Choices Between Safe Housing and Necessary Treatment

Transgender housing is perhaps chief among these categories. The Department must account for the increased vulnerability of transgender people in our penal system. The Department’s decision to move the Transgender Housing Unit to the Rose M. Singer Center, the sole women’s facility on Rikers Island, earlier this year is a positive step. It is vital that the Department recognizes transgender woman as women and treats them accordingly. Nonetheless, implementation of this change presents serious concerns. All incarcerated women, including transgender women, should be held in a women’s facility, regardless of their disciplinary history or treatment needs. DOC must ensure that treatment options for transgender women are readily available whether they choose to apply, stay or leave the Transgender Housing Unit on Rikers Island.

BDS worked with a transgender woman who was being held in a male facility. This woman requested the Transgender Housing Unit immediately after she was taken into DOC custody. She did everything she was supposed to do and more, including identifying and outing herself to DOC staff in an effort to ensure her own safety. Unfortunately, her placement in the THU was delayed due to necessary substance use treatment. Because the treatment is only available in one male facility and one female facility on Rikers Island, and neither of those housed the THU, our client could not access both necessary medical treatments. Because DOC identified our clients as a man, she was confined to a male facility where she was in danger every day, including being the victim of sexual and verbal harassment. Fortunately, she was accepted into the THU after her substance use treatment was completed, but the inability to access two necessary treatments posed a grave danger.

We urge the City Council to ensure treatment is not denied or that people are not forced to choose between their physical and medical safety. Treatment should never be bared simply based on location and mis-gendering.

Conclusion

To improve healthcare in our City’s jails, we urge you to consider treatment in jail as part of the continuum of care and view the broader context that allows substandard healthcare to be the norm for incarcerated people.

A landmark article published in the New England Journal of Medicine asks – and answers – whether “health professionals [should] 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?”[16]  It  notes that “the rate of premature death is 50% higher among Black men than among white men” and that “[b]lack women in New York City are still more than 10 times as likely as white women to die in childbirth.” The author, Dr. Mary Bassett, was the Commissioner of the New York City Department of Health and Mental Hygiene, and relied upon her own department’s statistics to support her findings.

The article does not explicitly address correctional healthcare, but Dr. Bassett explains that her work was inspired by another matter of the criminal legal system: police killings of unarmed Black people – with no legal sanctions – and the public uprisings that followed. The same racism that afflicts law enforcement in our communities also underlies many healthcare deficiencies in our prisons and jails, which are disproportionately populated by people of color and poor people.

We urge New York City to view Dr. Bassett’s article as a wake-up call and reevaluate the ways in which race impacts medical care that is needed and delivered before, during, and after incarceration. Despite assurances from City officials, including DOC Commissioner soon after she was appointed, DOC supervisors regularly refer to our clients as packages, at best, or animals, expletives, or racial slurs.

Disparities and biases are not limited to race, but regularly result from any demographic feature or personal identifying characteristic, including sexual orientation and gender identity or expression. Our clients are forced to 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. Although society continues to treat non-conforming identities and substance use and abuse as pathological behaviors, 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 focus on decarceration and closing Rikers Island now.

BDS is immensely grateful to the Committee on Criminal Justice, Committee on Hospitals, and Committee on Mental Health, Disabilities and Addiction 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 Advocacy Specialist, at 718-254-0700 ext. 382 or jchausow@bds.org.

 

[1] Wilper AP, Woolhandler S, Boyd JW, et al. The health and health care of US prisoners: results of a nationwide survey. Am J Public Health. 2009;99:666–72

[2] The National Commission on Correctional Healthcare has recognized these dangers. See Nat’l Comm. On Corr. Healthcare, About Us, https://www.ncchc.org/about (recognizing that improving the quality of care in jails and prisons not only “improve[s] the health of their inmates,” but also “the communities to which they return”).

[3] The reality of inadequate access to care is well-established in medical literature. See Wilper AP, Woolhandler S, Boyd JW, et al. The health and health care of US prisoners: results of a nationwide survey. Am J Public Health. 2009;99:666–72 (reporting the results of a nationwide study that showed that nearly 70% of individuals with persistent medical problems did not receive even a medical examination upon entering a local jail; more than 40% of people who were taking medication when they were first incarcerated stopped the medication once they entered the local jail; and approximately a quarter of the individuals who suffered a serious injury in a local jail were not seen by medical personnel following their injury)

[4] Pew Charitable Trusts, Prison Healthcare: Costs and Quality, Oct. 2017, https://www.pewtrusts.org/en/research-and-analysis/reports/2017/10/prison-health-care-costs-and-quality.

[5] 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

[6] 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.

[7] 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.

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

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

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

[11] 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.

[12] 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.

[13] Statistics provided by DOCCS

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

[15] 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.

[16] 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 COMMITTEES ON IMMIGRATION, HEALTH & GENERAL WELFARE ON THE IMPACT OF THE PROPOSED “PUBLIC CHARGE” RULE IN NYC

 TESTIMONY OF:

Nyasa Hickey – Immigration Practice

BROOKLYN DEFENDER SERVICES

 

Presented before

The New York City Council

Committee on Immigration

Committee on Health and

Committee on General Welfare

 

            Oversight Hearing: The Impact of the Proposed “Public Charge” Rule on NYC

November 15, 2018

My name is Nyasa Hickey and I am Immigration Counsel at Brooklyn Defender Services (BDS). Our organization provides multi-disciplinary and client-centered criminal defense, family defense, immigration, civil legal services, social work support and advocacy in nearly 35,000 cases involving indigent Brooklyn residents every year. Since 2009, BDS has counseled, advised or represented more than 10,000 immigrant clients. We are a Board of Immigration Appeals-recognized legal service provider. I thank the New York City Council Committees on Immigration, Health and General Welfare for the opportunity to testify about the impact of the proposed “public charge” rule on New York City residents.

The Proposed Rule Change

As the Council already knows, this proposed rule significantly changes who will be eligible to obtain Lawful Permanent Resident (LPR, aka “green card”) status in the future.  The proposed rule directly discriminates against and excludes middle-income, low-income and poor immigrant families from being able to seek long-term stable status in the United States as a lawful permanent resident. Perhaps most importantly, the rule change sends the message that low-income immigrants are not valuable community members and are not welcome in the United States.[1]

The proposed “public charge” rule change, if it goes into effect, will have tremendous negative effect on immigrant communities. We are already seeing the chilling effect of the proposal, as many of our clients are already too scared to apply for benefits that they are legally entitled to, even after we advise them that the rule change will not affect them. This unnecessarily and harmfully puts the health and safety of our immigrant communities.

We believe that the rule change will have the following impact on New Yorkers:

  • Prevents immigrant families from accessing benefits they are entitled to and that their tax dollars help to support;
  • Prevents people from accessing services that support their health, food, and secure housing situations—when people do not access these necessary services, it not only harms the individual but their family members as well;
  • Will create a catch-22 for many immigrants. They will have to make the choice between seeking essential public support services needed now to stabilize their health, nutritional or housing situation now, or maintaining their ability to receive a green card, permanent lawful status, and securing their family unity in the future; and
  • Will result in more difficultly for low-income people to immigrate, reunite or remain with their families.

Indeed, we have already seen how the mere proposal of this rule has already made immigrant families afraid to seek out programs and benefits that support their basic needs. We have been inundated with questions from our clients, many or most of whom would not be affected by the proposed rule, but who are terrified nonetheless. Some are refusing to apply for certain benefits even after we advise them that the rule change will not affect them. Furthermore, many of our clients are being told by other people, agencies, unscrupulous lawyers, and the media, that they are ineligible to apply for certain benefits or should withdraw from any benefits immediately or face deportation. This is inaccurate and unnecessarily spreads fear and concern in immigrant communities.

Our clients’ fear is compounded by the misinformation about benefits eligibility that they receive when they seek to enroll in benefits. Our clients have been informed by City benefits navigators and court-mandated program administrators that they are ineligible for benefits as an immigrant. This is factually incorrect and often requires advocacy by BDS attorneys and social workers to write letters, make phone calls, and personally attend benefits enrollment appointments to correct the misinformation and enable our clients to enroll in public benefits and programs they are entitled to receive.  In other instances, when enrolling in public benefits, our clients have been questioned by City employees to disclose the details of their immigration status and the basis for their work authorization, even while presenting a valid Employment Authorization Document issued by United States Citizenship and Immigration Services (USCIS).  This interrogation into the legalities of immigration status, the basis of their work authorization, and the status of someone’s social security number is unnecessary and creates more fear and distrust within immigrant communities, especially under the current national anti-immigrant political climate.

Through the proposed rule, the Federal Administration also seeks to broaden the scope of the public charge bar to include an analysis of negative factors. Such factors include a large family size, limited English proficiency, age, medical conditions that impact ability to work or go to school, physical and mental health conditions, and credit scores.  BDS represents thousands of non-citizen New Yorkers every year. Most of them live in mixed-status households, meaning that U.S. citizens, LPRs, visa holders and people without documents are living together, working together, and supporting one another. Many of them will be affected if the proposed rule goes into effect.

Here are some categories of people who will be negatively affected by the proposed rule:

  • A person who is applying for a green card now or anytime in the future will have to make the choice between seeking immediate and necessary public benefits to support herself and her family against her future ability to get a green card, which would give her work authorization and long-term stable status to remain with her family in the United States.

The list of benefits under the proposed rule change is expanded to include Medicaid, housing, SNAP, Medicare Part D, and assistance programs.

  • A person who is applying for a green card may be determined ineligible as a public charge because he or she is determined to be “likely to use certain public benefits in the future” because they have a combination of the following factors:
    1. Earn less than 125% of the federal poverty level;
    2. Are a child or a senior;
    3. Have certain health conditions that require extensive treatment or affect the applicant’s ability to work, attend school, care for themselves;
    4. Have limited English ability;
    5. Have less than a high school education;
    6. Have a poor credit history; or
    7. Have obtained a fee waiver in applying for an immigration benefit, such as a fee waiver for employment authorization for Temporary Protected Status.
  • Immigrant families who are afraid to access public benefits for themselves or their children because of the stigma associated with public benefits and immigrants. Individuals and families have already been deterred from applying for public benefits and withdrawn from benefits because of fear and misinformation about the proposed public charge rule, even if they will not be subject to a public charge test.
  • Green card holders who receive public benefits or have significant health issues, are seniors, children, or unemployed, would not be able to travel abroad for more than six months because they risk being deemed a public charge upon their return to the U.S. For example, someone with a family emergency in their home country would have to consider very carefully about leaving the US for more than six months because they would be subject to the public charge assessment upon reentry.

The public charge rule harms immigrant families because it requires an analysis of a whole host of factors that are outside an individual person’s control in determining whether or not a person may remain in the U.S. The rule clearly seeks to exclude poor people, people with limited English comprehension, children and the elderly from permanent resident. It officially categorizes any person who potentially fits within these categories as undesirable. The rule change is unfair and unjust and anathema to the American dream. But there is much the City can do to combat this xenophobic policy change.

Recommendations

  1. We call on the City Council to pass Resolutions 608-2018 and 609-2018 and submit a comment to the Federal Register on behalf of the City in opposition to the proposed rule change.

We also urge you to encourage all New Yorkers to submit individual comments to the Federal Register on this important issue.

  1. Continue funding and supporting organizations like BDS that provide direct legal services and advice to immigrant New Yorkers.

Brooklyn Defender Services attorneys and social workers are on the front lines serving immigrant New Yorkers. However, under the current Administration’s enforcement regime, characterized by constantly changing policies, each immigrant client’s intake, legal analysis, and risk advisal has become more challenging and nuanced than ever before. In addition, applications that were previously considered to be simple applications, such as Employment Authorization Documents, or applications without complicating factors, no longer exist.  Under new Executive Orders and directives issued at the federal level, each application is complex and requires an enormous amount of BDS’ resources.  Applications are subject to increasing delay times, often require follow up in the forms of a Request for Evidence, and, if denied, put our clients at risk under the new referral Notice to Appear referral to immigration court policy.

Continued and increased funding for immigration legal services is one of the most important tools that the City Council has to ensure that immigrant New Yorkers can remain in their homes with their families.

  1. Improve training for city benefits navigators and other city staff who interact with and advise immigrant New Yorkers

Some of our clients who are seeking to enroll in benefits have mistakenly been told by navigators that they do not qualify for benefits because they are non-citizens. Other BDS clients have been interrogated by navigators about their immigration status and the basis for their employment authorization. In many of these cases, the navigators are simply uninformed about all of the complexities in immigration law. We then have to use attorney and social worker resources to advocate with the benefits navigators to ensure that our clients are allowed to apply for the benefits to which they are entitled. We would be happy to work with the City to improve training for navigators and other City staff who interface with immigrant New Yorkers about the public charge and related issues.

Thank you for your time and consideration of this important issue. If you have any questions, please feel free to reach out to Daniel Ball, Communications & Development Coordinator, 718-254-0700 ext. 579 or dball@bds.org.

[1] This is a helpful FAQ guide: https://www.momsrising.org/blog/what-you-need-to-know-on-the-public-charge-rule-immigrant-families