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BDS TESTIFIES BEFORE NYC COUNCIL COMMITTEES ON PUBLIC SAFETY, JUSTICE SYSTEM, CONSUMER AFFAIRS & BUSINESS LICENSING, AND CIVIL & HUMAN RIGHTS PUBLIC HEARING ON MARIJUANA LEGALIZATION

TESTIMONY OF:

Jacqueline Caruana – Senior Trial Attorney, Criminal Defense Practice

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committees on Public Safety, Justice System, Consumer Affairs & Business Licensing, and Civil & Human Rights

Public Hearing on Marijuana Legalization

February 29, 2019

 

My name is Jacqueline Caruana and I am a Senior Staff Attorney in the Criminal Defense Practice at Brooklyn Defender Services (BDS). BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 35,000 clients in Brooklyn every year.  This includes thousands of people arrested for marijuana possession or sale, or fighting deportation, eviction, or a loss of custody or parental rights due to marijuana-related allegations or convictions. I thank Chairpersons Donovan Richards, Rory Lancman, Rafael Espinal, and Mathiew Eugene, and members of their respective committees for the opportunity to testify on the legalization of adult marijuana use.

NEW YORKERS NEED AND WANT URGENT REFORM

There is broad popular support for marijuana legalization. Across the country, a large majority (64%) support full legalization of marijuana; this includes a slim majority of Republicans (51%).[1] A recent Emerson College poll showed two to one support for legalization among New York State residents.[2] Yet more than 800,000 people have been arrested for low-level marijuana possession over the past 20 years. The vast majority were people of color, despite government surveys showing equal or greater use by white people.[3] Untold numbers of people are being detained and deported by ICE, losing their children to foster care, or suffering eviction from subsidized housing, in whole or in part, because of marijuana prohibition. Meanwhile, states with legal marijuana markets are benefiting from more than $1 billion in new—or newly above-ground—economic activity and hundreds of millions of dollars in taxes and fees every year.[4],[5] The Governor’s public support of legalization has helped to expand momentum and we are hopeful that a comprehensive bill can pass this year.

BDS is proud to support the Marihuana Regulation and Taxation Act (MRTA), S.1747/A.3089 and the city council’s resolution urging the Governor to sign and enact the MRTA, Reso 0075-2018. The key components of the MRTA include:

  • Allowing adult marijuana use and ending criminalization;
  • Automatically vacating as many marijuana convictions as possible;
  • Ending punitive responses to marijuana use or possession by child protective services agencies, absent clear and convincing evidence of unreasonable danger to children;
  • Ending adverse housing impacts of marijuana use wherever possible;
  • Creating an inclusive industry in which people who have been targeted under marijuana prohibition can use their experience and profit from legalization; and
  • Reinvesting marijuana tax revenue in the communities that have been most harmed under prohibition.

Accordingly, BDS also supports and urges the coordination of the New York State Division of Criminal Justice Services (DCJS), the New York State Office of Court Administration, and the New York City District Attorneys to vacate the records of all city misdemeanor marijuana convictions, as proposed in Reso 0641-2018. Furthermore, BDS supports the City Council’s resolution calling on Congress and the President to sign the Marijuana Justice Act of 2017, so long as this federal legislation comports with the protections and guarantees specifically outlined in the MRTA. (Reso 0743-2019).

We urge the city and the state to pass legislation that will automatically vacate all marijuana convictions, including felonies and violations, not just misdemeanors. However, before these convictions are vacated, there must be a procedure in place for someone who is an immigrant to challenge their marijuana conviction based upon procedural and substantive violations of their constitutional rights. The city and state must establish a framework for the automatic relief from prior marijuana convictions, because no one should ever have a criminal record for marijuana – past or future. It is critical that the MRTA and any future legislation by the city automatically vacate past marijuana convictions. It is paramount that marijuana legalization should mark an end to the host of consequences faced by New Yorkers who were previously swept into the criminal justice system for marijuana use.

RACIAL DISPARITIES IN MARIJUANA ENFORCEMENT ACROSS NEW YORK CITY

We know that one of the main reasons for marijuana legalization is that the laws were not being enforced equally. A report commissioned by the Drug Policy Alliance examining the 60,000 low-level marijuana possession arrests in New York City in the first three years of the de Blasio administration found that 86% involved Black or Latinx people—a racial disparity that has remained roughly constant for decades. This follows deliberate policing strategies targeting both neighborhoods in which people of color are a majority of residents and individual people of color within majority-white neighborhoods. In 2016, the New York Police Department (NYPD) arrested 362 people in West Harlem for this offense, yet only 14 in the Upper East Side, which has more than three and a half times as many residents. Of those 14 arrests, 50% involved Black and Latinx people, despite these groups making up only 10% of residents. Throughout Manhattan, Black people are 13% of the population and 45% of the people arrested for this offense, amounting to ten times the arrest rate for white people. In fact, more Black people were arrested for this offense in Manhattan than white people citywide. Across the East River, in the Mayor’s home neighborhood of Park Slope, Black and Latinx people comprise 24% of residents and 73% of those arrested for this offense.[6]

In reviewing data from 2017, a reporter found that, when white people were arrested, they were significantly more likely to have their cases dismissed by District Attorneys, and cases involving Black and Latino people were approximately twice as likely to end in a conviction compared to those involving white people.[7] Of course, these disparities extend to arrests for allegations of marijuana sales. Of the 80 people arrested for the lowest-level marijuana sale charge (Criminal Sale of Marijuana in the 5th degree) in New York City in 2016, only 1 was white. 94% of those arrested for the more common Criminal Sale of Marijuana in the 4th Degree were Black and/or Latinx, despite research showing users typically buy drugs from their peers.[8]

It is because of this systemic and disparate treatment, that BDS supports legislation that prioritizes individuals with prior marijuana convictions in issuing licenses and offering employment within the newly regulated marijuana industry as outlined in Resos 0738-2019, 07341-2019, and 0744-2019. It’s imperative the individuals that we represent, the residents of New York City, that have been so harmed by the prohibition and illegalization of marijuana to have a meaningful opportunity to participate in this industry, to have business ownership, to obtain licenses, and to receive gainful employment.

MARIJUANA ENFORCEMENT AND COLLATERAL CONSEQUENCES

Eviction, Housing Instability, and Marijuana Prohibition

BDS’ Civil Justice Practice assists clients with a wide range of consequences stemming from justice system involvement. Many of these individuals and families, disproportionately people of color, suffer diminished housing stability and future housing options by low-level marijuana arrests or convictions.

Currently, a mere arrest for marijuana possession will lead to NYCHA beginning a termination of tenancy proceeding against the head of household.  The proceeding is brought quickly after arrest and NYCHA often forces the eviction proceeding to go forward before any related criminal proceeding has concluded. For this reason, tenants often end up being coerced into agreeing to be on housing probation, and permanently banning a member of their family from even visiting their home, all on the basis of marijuana charges alone. This means that even if the criminal case is eventually dismissed and sealed, a NYCHA tenant has already put their housing at risk.

Being on probation or having to permanently exclude a family member is incredibly risky for NYCHA tenants. A violation of probation, which could include paying your rent late, or forgetting to recertify on time, subjects you to a termination of your tenancy. Permanent exclusion is even more burdensome; tenants must allow NYCHA to randomly inspect their apartments, and if one specific room is not available for inspection at that time, for example a family member is sleeping and the inspectors are denied access to that room, NYCHA records a violation and the tenant can and often will be evicted. Not to mention, even a brief surprise visit from the excluded family member results in eviction.

Termination of tenancy proceedings based on marijuana charges are the most dangerous for NYCHA’s most vulnerable tenants. If a tenant suffers from either mental or physical disabilities that might make it difficult for them to appear on their hearing date, that tenant is defaulted, which means their tenancy is terminated and they will be evicted. A tenant often does not even find out about this default until it is too late to appeal or re-open the default, and NYCHA regularly denies applications to re-open a default. This means that NYCHA’s most vulnerable residents are most at risk for actually losing their low-income housing based merely on marijuana possession charges.

Equally as important is the fact that applications for NYCHA housing are routinely denied based on marijuana convictions, or even simply marijuana use.  A question NYCHA asks as part of the admission interview is whether or not the prospective tenant has used marijuana.  If the tenant admits that they have used marijuana any one time in the last one year, their application will be rejected. A conviction for criminal possession of marijuana in the fourth or fifth degrees results in an application being banned from eligibility for 3-5 years. Even a criminal case that results in a marijuana ACD will ban the applicant for the one year period prior to sealing.

For these reasons, BDS supports Reso 0296-2018, calling upon NYCHA to add unlawful possession of marijuana and criminal possession of marijuana in the fourth and fifth degrees to its list of “overlooked offenses,” and stop considering these offenses as grounds for termination of tenancy. However, we urge the City Council to enact legislation that prevents NYCHA from using possession of marijuana as a basis for seeking termination or probation under any circumstances.

Probation, Parole, and ATI programs

Individuals on probation or parole stand the to lose the most from a low-level marijuana arrest, because they can be sent to jail or prison. Morever, these individuals can have their probation or parole revoked if they test positive for smoking marijuana. If the MRTA and corresponding federal, state, and local legislation makes it legal for a person to smoke marijuana, than individuals on probation or parole should be treated no differently. BDS supports Int 1427-2019, as it proposes to amend the New York City administrative code in order to prohibit the department of probation from drug testing probationers for marijuana use. This proposed amendment, however, includes a provision that would allow probation to test for marijuana use under certain circumstances. BDS urges the City Council to prohibit the department of probation from drug testing for marijuana under ANY circumstance. Moreover, BDS urges the City Council to call for the same prohibition for parolees.

It is important for the Council to note that many individuals involved in the criminal justice system in Brooklyn, and throughout the City, are participating in programs called ATI’s, or Alternative to Incarceration programs. These programs are essential for assisting individuals with job training, education, and counseling in order to provide the best chance of avoiding incarceration, rearrest, and/or a permanent criminal record. Many of these programs consistently drug test their participants for marijuana use and a positive test result can cause a participant to be discharged from the program and potentially serve time in jail or prison. BDS urges the Council and the Courts to be consistent when responding to the new cultural understanding of marijuana use and encourage ATI programming to stop drug testing participants for marijuana.

THE VIEW FROM KINGS COUNTY CRIMINAL COURT

Our criminal defense attorneys meet their clients on the brink of crisis, generally within 48 hours of an arrest. The most common cases they handle include allegations of turnstile jumping, possession of a crack pipe, driving on a suspended license, stealing essentials like a bar of soap, trespass (often shelter-seeking) or, despite years of pronouncements by policymakers and prosecutors to the contrary, low-level marijuana possession. The Brooklyn District Attorney’s office received a lot of attention for announcing that it would decline to prosecute most low-level marijuana possession cases in 2014; in reality, the office prosecuted 83% of these cases in 2016. Finally, earlier this year, Brooklyn prosecutors began declining to prosecute the majority of low-level marijuana possession cases and dismissing those that come into court via Desk Appearance Tickets.

However, we are now seeing an increase in arrests and prosecution for the possession of so-called vape pens, or electronic smoking devices, as Criminal Possession of a Controlled Substance in the Seventh Degree (CPCS7). This charge is typically reserved for possession of non-marijuana drugs, or drug residue, and is often treated more harshly, even though vaping may create less of a public nuisance than smoking. (Under the Penal Law, concentrated marijuana products used in vape pens can be charged as either CPCS7 or Criminal Possession of Marijuana in the Fifth Degree.) The fact that a person is in possession of THC oil as opposed to the marijuana plant should not make any difference in whether a person is arrested or prosecuted. This practice makes no sense. Ironically, one of the exceptions in the Brooklyn DA’s policy is to continue prosecuting marijuana where the police say a person is ‘creating a genuine nuisance,’ but THC oil and vaping are actually the least intrusive method of consumption.” BDS represented 23 individuals arrested for possession of THC oil, charged as Criminal Possession of a Controlled Substance, between Sept. 4 and Nov. 12 of 2018.

As such, BDS supports Reso 0745-2019, which calls upon the State Legislature to pass, and the Governor to sign, legislation related to the reclassifying of THC and all other marijuana based products from a controlled substance to the equivalent of flower marijuana.

Additionally, BDS also supports the legalization of synthetic cannabis. While the legislature contemplates legalizing marijuana, BDS wants to encourage elected officials not to exceptionalize flower marijuana as the only socially acceptable recreational drug. Synthetic Cannabis is also being prosecuted as a controlled substance, in much the same way as THC oil is being prosecuted.

The gulf between the rhetoric of policymakers and the reality we see in court underscores the need for legislative action. Moreover, the statutory criminalization of marijuana, not just its enforcement, drives discriminatory broken windows policing. The oft-claimed “odor” of marijuana and the alleged observation of a flicked marijuana cigarette are two of the most common pretexts officers use to justify unconstitutional stops and frisks, or turn car stops into full blown searches. Much like allegations of failure to signal, odor of marijuana is notoriously difficult to disprove in court, hence the commonality of its use as a pretext. All that said, simply ending all arrests and summonses for marijuana spare thousands of New Yorkers the trauma and burden of criminal court involvement, fines, and countless consequences.

Once in court, most low-level marijuana possession cases across New York City resolve with no criminal sentence. This is why court watchers often say “the process is the punishment.” After formally charging people, prosecutors generally do not seem to care about marijuana. However, the absence of a criminal sentence does not mean there is no additional punishment. Beyond the harm that can happen between arrest and arraignment, cases that result in an Adjournment in Contemplation of Dismissal (ACD), remain open and visible to prospective employers and landlords for six months to a year.[9] Cases that result in non-criminal violations trigger costly court surcharges and erect legal barriers to civil lawsuits for police misconduct. Cases that result in misdemeanor convictions result in even steeper surcharges and often permanent criminal records. Children who are removed from their parents during an arrest, even for short periods of time, must deal with the known trauma of removal, and families bear the burden of mending this harm over many months and years.

Importantly, I can only speak to marijuana cases in Brooklyn; in other parts of the state, where jail populations have doubled while that of New York City jails has shrunk by half, people may be much more likely to suffer pre-trial detention on bail or Misdemeanor jail sentences.

Client Stories

[Note: All client names have been changed]

Mr. P was stopped by police as he left the NYCHA building where he lives as a tenant of record based on an outdated trespass notice issued 11 years earlier. Police found a small amount of marijuana on him and arrested him for trespass and marijuana possession. He was detained overnight. The case resolved with an ACD but Mr. P was forced to do a day of community service. Mr. R is Black and 38 years old.

Ms. R was illegally searched and found to have a small amount of marijuana. She also had an open summons warrant for having an open container of alcohol that she had failed to pay. Police arrested her and detained her overnight. Her BDS attorney was able to secure an ACD, but the case was slated to remain open for a year. Recently, Mr. R learned that the company for which she works conducts random background checks and she is at serious risk of losing her job. Now, her attorney is working to get the ACD immediately sealed, but it is unclear whether the court will grant it. Ms R. is South Asian and 22 years old.

Mr. J was in the hallway of his apartment in Brooklyn, a NYCHA building, where he lives with his family. That evening the warrant squad came into the building and arrested Mr. J. Earlier in the year, Mr. J received a summons for possession of marijuana in the Bronx. Mr. J did not have the money to pay the summons so a warrant was issued for his arrest. Mr. J had to spend a night in jail and when he appeared before the judge, the District Attorney dismissed the case. Mr. J is black and 19 years old.

Mr. M was arrested by an undercover officer and charged with a felony for selling synthetic cannabis to this undercover officer. Approximately 3 months later, his charges were dismissed because a lab report confirmed that the substance he was accused of selling wasn’t in fact synthetic cannabis. It is worth noting that the District Attorney’s office had access to the NYPD lab report in this case 6 days after Mr. M was arrested but did not disclose the report for 3 months. Mr. M is black and 32 years old.

MARIJUANA PROHIBITION AND RESOURCE ALLOCATION

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

The fact that marijuana and other drug prohibition is the status quo should not exempt it from close scrutiny. This hearing is a critical example of such scrutiny and the upcoming State budget negotiations provide ample additional opportunities for reconsideration of existing funding choices. While the City and State have together spent tens of millions of dollars every year criminalizing mostly people of color for low-level marijuana possession, the State has provided more than $15 million dollars in subsidies to mostly or all white-owned craft wineries, breweries, distilleries and cideries in recent years.[11],[12] These resource allocations expand the disparities in health, economic success, and liberty in our society. In addition to simply legalizing and regulating adult marijuana use, the MRTA would foster significant economic growth and meaningfully shift the balance toward justice and equality.

***

Thank you for your time and consideration of our comments. We look forward to further discussing these and other issues that impact our clients. If you have any questions, please feel free to reach out to Jared Chausow, our Senior Policy Specialist, at 718-254-0700 ext. 382 or jchausow@bds.org.

[1] Justin McCarthy, Record-High Support for Legalizing Marijuana Use, U.S. Gallup News, Oct. 25, 2017, http://news.gallup.com/poll/221018/record-high-support-legalizing-marijuana.aspx.

[2] Marijuana Policy Project of New York & Drug Policy Alliance, New Poll Shows 2 to 1 Support for Legal Marijuana Use in New York State (2017), http://www.drugpolicy.org/press-release/2017/11/new-poll-shows-2-1-support-legal-marijuana-use-new-york-state.

[3] Melissa Moore, Lawmakers Must Legalize Marijuana in New York to Support Racial and Economic Justice, N.Y. Daily News, Nov. 27, 2017 at http://www.nydailynews.com/opinion/lawmakers-legalize-marijuana-new-york-support-justice-article-1.3661162.

[4] Tom Huddleston, Jr., Colorado Topped $1 Billion in Legal Marijuana Sales in 2016, Fortune, Dec. 13, 2016 at http://fortune.com/2016/12/13/colorado-billion-legal-marijuana-sales/.

[5] Aaron Smith, Colorado Passes a Milestone for Pot Revenue, CNN Money, July 19, 2017 at  http://money.cnn.com/2017/07/19/news/colorado-marijuana-tax-revenue/index.html.

[6] Harry Levine, 60,000 Jim Crow Marijuana Arrests in Mayor De Blasio’s New York (Drug Policy Alliance & Marijuana Arrest Research Project 2017), https://www.drugpolicy.org/sites/default/files/Marijuana-Arrests-NYC–Unjust-Unconstitutional–July2017_2.pdf.

[7] Brendan Cheney, For Non-white New Yorkers, Marijuana Arrests More Often Lead to Conviction, Politico, May 9, 2017 at https://www.politico.com/states/new-york/city-hall/story/2017/05/04/racial-disparities-in-marijuana-convictions-in-all-five-boroughs-111807.

[8] Source: NYS Division of Criminal Justice Services

[9] Source: NYS Division of Criminal Justice Services

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

[11] Robert Harding, Regulatory Reforms, Tax Credits Help NY Craft Beverage Producers Save $15M, Auburn Citizen, May 9, 2017 at http://auburnpub.com/blogs/eye_on_ny/regulatory-reforms-tax-credits-help-ny-craft-beverage-producers-save/article_a593fbb4-0433-11e7-b486-5b9c7090db7a.html.

[12] Marijuana Arrest Research Project, Loren Siegel & Harry G. Levine, $75 Million a Year: The Cost of New York City’s Marijuana Possession Arrests (Drug Policy Alliance 2011), http://marijuana-arrests.com/docs/75-Million-A-Year.pdf.

BDS TESTIFIES BEFORE THE NYC COUNCIL COMMITTEE ON CRIMINAL JUSTICE OVERSIGHT HEARING ON DEPARTMENT OF CORRECTION PROGRAMMING

TESTIMONY OF: 

Kelsey De Avila, LMSW

BROOKLYN DEFENDER SERVICES

Presented Before 

The New York City Council Committee on Criminal Justice

Oversight Hearing on Department of Correction Programming

February 26, 2019

My name is Kelsey De Avila and I am the Project Director of Jail Services at Brooklyn Defender Services. BDS provides comprehensive public defense services to nearly 30,000 people each year, thousands of whom are detained or incarcerated in the City jail system either while fighting their cases or upon conviction of a misdemeanor and a sentence of a year or less. Thank you for the opportunity to address the Council and share with you all testimony based on the experiences of our clients whose voices are underrepresented at today’s hearing.

BDS supports high quality, effective and targeted programming for people in our City jails because programs 1) help ensure that people have skills that can transfer when they return to our communities; 2) assist in criminal and family court proceedings; 3) and reduce idleness, resulting in a corresponding decrease in violence. Unfortunately, we hear from our clients far too often how these critically important programs are insufficient. We hear repeatedly that programs are not readily available or are extremely limited; the few that are available are woefully inadequate. When asked about programming, our clients respond with the regular refrain that they are provided a “worksheet” with no follow up and little meaning. During a recent visit, our client informed us they spent the morning in programs learning new jokes. We are confident he did not sign up for a comedy class. These stories are unsurprising but continuously disconcerting.

People want programming. Our clients seek to better themselves and prepare for the future. Nonetheless, when these “programs” are really “busy work”—rather than a critical component to building meaningful skills— programming in our jails is not fulfilling its necessary goal of serving our incarcerated population.

Beyond the value of the programming itself, judges often consider work that incarcerated people do towards self-improvement. People who are able to demonstrate—through certificates or otherwise—that they have completed some sort of course while incarcerated are often viewed more favorably by the court. This leads to increased potential for bail or bond and more favorable dispositions.

Programming not only is a tool to better oneself, but it is a tool that has and will reduce idleness, a leading factor of violence in our City jails. Unfortunately, rather than bolstering programming to combat these underlying causes of violence, DOC has done just the opposite. DOC restricts programming as a punitive measure, limiting access for some of the people who would likely benefit most. The severe limitation on productive activities in the restrictive housing units is especially problematic, as isolation and abuse only amplify the cycle of violence that programming—and all of us—seek to end. Programming should not be viewed as a hollow activity, but a priority and a positive pathway to reducing violence in our City jails.

BDS is willing to partner with the Council to help identify existing program models and outside community organizations that are well trained to provide meaningful programs for people in our City jails.

Improving Communication with the Defense Bar

It is not uncommon for defenders to seek information on the availability of programs within the Department, as they should when working through all possible advocacy avenues when representing a person. The reality, unfortunately, is DOC lacks an established and transparent system of programming. Our staff has attempted to determine which programs are available at which facilities. In doing this research, including speaking to staff at various programs, we discovered that the placement of programs into certain facilities is, for the most part, arbitrary. Further limiting, while a program may be in a particular facility, it is only often only available to clients that are housed within specific units in that facility. The schedule and availability of these programs are constantly changing, making it difficult for our clients to maintain access to the program they may need or want to participate in.

When advocating for programs, it is crucial that defenders, attorneys and social workers alike, have access to a schedule of available programs that is regularly updated. It needs to clearly identify eligibility requirements, if any, and how a person can sign up and attend. No such list exists. The lack of transparency and available information from DOC Program staff is abysmal, and one that can be easily rectified. Our office is willing to work with the Department on how best to share information so people in our jails and their advocates are provided with concrete and accurate information.

DOC Protocols are a Hindrance to Services

In 2015, then Commissioner of DOC, Joseph Ponte and Mayor Bill de Blasio announced their 14-Point Plan to reduce violence. A key component of the program involved designing “effective inmate[1] education opportunities and services that will result in a comprehensive idleness reduction program that envisions an expansion of non-school classes and other activities such as fatherhood initiatives or workforce development, so that all inmates will have the option of attending a minimum of five hours of classes or programming daily, from one hour now.”[2] We appreciate the Department’s efforts to expand availability of programming throughout a single day, but also their commitment to doing so for “all inmates.” Unfortunately, this stated goal is far from the current experience of many of our clients. People regularly report not having equal access to programs based on their housing location; based on their classification; or based on their age. Our clients face the following issues when actively trying to participate in programming while in DOC custody.

DOC Security Classification

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. Programs that could help alleviate violence and danger in the City jails far too often takes a backseat to DOC’s purported security mission. Correctional staff regularly serve as an impediment, rather than a conduit, to program access.

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. However, even if a person is classified as gang involved or high classification, they should be afforded the opportunity to better themselves through programming. In often times, these are the first interactions of any meaningful programmatic interventions. For instance, the substance use treatment program “A Road Not Taken (ARNT)” provides a supportive environment for people struggling with addiction who are housed among peers and participate in extensive programming. 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 decade-old incarceration where DOC identified him as gang affiliated and provided no opportunity to appeal. Although the client is 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 impacts our clients in numerous ways: their ability to fight criminal cases in court, helping treat disorders, allowing them to participate more effectively in their own defense, and demonstrating to the court their commitment to change. DOC and Correctional Health Services should make 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.

Punitive Measures for Young Adults

Back in 2015, after the Mayor announced the elimination of solitary confinement for adolescents and young adults,[3] the Department, in partnership with numerous advocates and program providers created the Adolescent and Young Adult Advisory Board (AYAAB) whose main goal was to create the Young Adult Plan addressing the programmatic needs and effective strategies to reduce violence within this age group. These efforts were coordinated primarily around GMDC on Rikers Island. The facility was based heavily on supportive and vocational programs, so much so that it was nicknamed the Programming Hub. Unfortunately the Department soon sought, and won, a variance from the Board of Correction to allow young adults to be housed in a restrictive and overly punitive unit called Enhanced Supervision Housing (ESH). This unit was never intended to include anyone under the age of 22. ESH standards require DOC to provide “programming aimed at facilitating rehabilitation, addressing the root causes of violence, and minimizing idleness” in ESH housing units. Within this housing unit, young adults are allowed up to five hours of programming daily, but are mechanically restrained—including on both legs—throughout. Young people are forced to make an impossible choice: forgoing their physical freedom to participate in a program while literally strapped down, or forgoing their mental engagement by skipping the program but being free to move their limbs. For those that choose physical freedom, they face a dead end: In order for a young person to progress to a less restrictive unit and potentially general population, they are required to participate in programming

BDS, countless other advocates, and impacted individuals have voiced our concerns with the Department’s practices in these units time and again: these units are overly punitive in design and character; isolation of this type is particularly dangerous for young people whose minds are still developing; the practice of restraining young people in these units to desks during their out-of-cell time is especially inappropriate in the case of people who have not been convicted of any crime; isolating young adults in ESH and Secure is not an effective means to reducing violence; the list goes on.

Addressing behavior is essential to the safety of a facility, but strategies DOC employs are ineffective and danger: humiliate a young person who only wants to participate in programming, a factor that is necessary to progress out, is not the solution. By disregarding the conditions of these facilities, we are actively working towards ignoring the reality of these units and the harmful impact they potentially have on individuals incarcerated in our City jails.

Facility Wide Lockdowns Result in Group Punishment

In the past month alone, our office has been made aware of numerous facility-wide lockdowns. When this occurs, access to services, treatment and programming is severely limited and in some cases, simply denied. The Department quickly resorts to facility-wide lockdowns despite having the ability to isolate the lockdown to a specific area rather than punishing those who have no involvement in the alleged incident.

As a security response that impacts a large number of people and services, lockdowns also contribute to perceptions of unfair and excessive punishment, frustrations, and tensions in the facilities. We commend the NYC Board of Correction and City Council Member Daniel Dromm in their efforts to monitor and report the Department’s excessive use of lockdowns. We need to continue to hold the Department accountable when they use a tool unnecessarily that will hinder group access to programming and mandated services.

Int. No. 261

Brooklyn Defender Services does not support Int. No. 261 in its current form. Our office firmly believes in the importance of data and City departmental transparency. Unfortunately, as drafted, Intro. 261 does not achieve these goals and instead poses a potential risk for our clients’ safety. We appreciate the Council’s efforts to learn more about the lived experiences of current detainees in our City jails. Nonetheless, sharing information with an agency that has repeatedly failed to keep people safe and keep information confidential endangers our clients. The Department should not be responsible for distributing, receiving nor analyzing surveys from those in its custody where people are expected to address “DOC staff treatment.” Retaliation or the threat of retaliation are a true part of the lived experience of many of our clients, and a real threat anytime a person reports an incident in the jails, even more so if they are reporting to the entity that is responsible for the retaliation in the first instance. We believe there are safer and more secure ways to find and report on an incarcerated person’s experience that do not require DOC’s involvement or facilitation. Our office is willing to work with the Council and strategize how best we can highlight and learn from the daily experiences of the thousands of people incarcerated in our City jails.

We also believe any survey or data collection that requires people to disclose experiences should result in substantive changes. Too often we ask and exploit the experiences of incarcerated people without making necessary systematic changes.

Int. No. 1184

BDS supports Int. No. 1184 and we believe everyone should have equal and consistent access to books, especially those who are held in our solitary confinement units. We ask the Council to work closely with the New York Public Library on implementation and how best to support people gaining access to books in our City jails.

Conclusion

Programs are essential for self-advancement, criminal proceedings and reducing violence in our City jails. Unfortunately, programs are not readily available. Without equal opportunity, without equal access and without hindrance from the Department of Correction, they often go unutilized. Without access to the programming offered elsewhere such as drug and alcohol counseling, group mental health meetings, re-entry focused programs such as I-CAN, or anger management, individuals[4] are often underserved compared to those in general population.

The Council has the authority to visit any DOC facility of their choosing, access that a majority of our society will never witness. We encourage the Council to visit, speak with people currently detained and sentenced to our City jails and learn from those closest to the problem to find our solutions. 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 we can provide further assistance or answer any questions, please feel free to reach out to Saye Joseph at sjoseph@bds.org.

[1] We should refrain from using dehumanizing language such as “inmate”, “convict”, “felon”, “ex-con” and instead us person first language such as “person”, “people” and the person’s name.

[2] Mayor de Blasio, Commissioner Ponte Announce 14-Point Rikers Anti- Violence Agenda, March 12, 2015, available at:  https://www1.nyc.gov/office-of-the-mayor/news/166-15/mayor-de-blasio-commissioner-ponte-14-point-rikers-anti-violence-agenda#/0.

[3] Michael Winerip  and Micheal Schwirtz, Rikers to Ban Isolation for Inmates 21 and Younger, January 13, 2015, available at: https://www.nytimes.com/2015/01/14/nyregion/new-york-city-to-end-solitary-confinement-for-inmates-21-and-under-at-rikers.html.

[4] There are various housing units within the DOC other than general population that have limited access to programming. These housing units includes, but not limited to, Mental Observation, Transgender Housing Unit, Pregnancy/New Mothers Nursery and Protective Custody.

News

IN THE NEWS: VIDEOCONFERENCING IN IMMIGRATION COURT: HIGH-TECH SOLUTION OR RIGHTS VIOLATION?

By Christina Goldbaum for the New York Times

Photo: Hiroko Masuike/The New York Times

Facing serious overcrowding in immigration courts, federal authorities in New York adopted a high-tech solution last year: Immigrants would be kept in detention centers for their legal proceedings, appearing before judges only by videoconference.

Now, a new lawsuit claims that the policy infringes upon immigrants’ constitutional rights in a deliberate attempt to speed up and increase deportations.

Read full article at NYtimes.com.

 

News

PRESS RELEASE: DETAINED IMMIGRANTS AND NEW YORK IMMIGRANT FAMILY UNITY PROJECT (NYIFUP) PROVIDERS SUE U.S. GOVERNMENT OVER REFUSAL TO PRODUCE DETAINED IMMIGRANTS IN-PERSON FOR DEPORTATION HEARINGS

February 13, 2019

Contact:
Daniel Ball, Brooklyn Defender Services, 347-592-2579, dball@bds.org

*** FOR IMMEDIATE RELEASE ***

Detained Immigrants and New York Immigrant Family Unity Project (NYIFUP) Providers Sue U.S. Government over Refusal to Produce Detained Immigrants In-Person for Deportation Hearings

Lawsuit Seeks to Restore the Constitutional and Statutory Rights of Hundreds of Detained Immigrants by Ending ICE’s Blanket Use of Video Teleconferencing at Varick Street Immigration Court

(NEW YORK, NY) Late yesterday, seven immigrants, representing a class of all detained immigrants in the New York City area, and the three New York Immigrant Family Unity Project (NYIFUP) providers—Brooklyn Defender Services (BDS), The Legal Aid Society (LAS), and The Bronx Defenders (BxD)—filed a federal lawsuit in the United States District Court for the Southern District of New York challenging U.S. Immigration and Customs Enforcement’s (ICE) refusal to bring immigrants to court for deportation hearings. Instead of letting detained immigrants appear in court, ICE has been forcing them to use a video connection to challenge their detention and deportation.

ICE’s policy of denying in-person hearings when immigrants’ liberty, family unity, and potential exile is at stake is a cruel extension of the federal administration’s aggressive efforts to deny immigrants equal justice and due process.

[Link to complaint.]

For the first four and a half years of NYIFUP, in-person hearings ensured that detained immigrants had an opportunity to fully access the courts and participate in their defense during removal proceedings and allowed attorneys to more effectively represent and meaningfully protect their clients’ rights and interests.

Without warning, ICE’s New York Field Office announced on June 27, 2018 that starting that day, removal proceedings at the Varick Street Immigration Court in New York City would be conducted exclusively by video teleconferencing (VTC). Immigrants detained by ICE would appear by video feed from the county jail at which they are held—disconnected from the court, their lawyers, evidence presented by the Government, and their case.

The Plaintiffs are asking the federal court to enforce the government’s constitutional and statutory obligation to provide detained immigrants with due process, to ensure access to the courts, and to preserve the right of clients to communicate with their attorneys.  BDS, LAS, BxD, Wilmer Cutler Pickering Hale and Dorr LLP, and Debevoise & Plimpton LLP represent the class and the organizational plaintiffs.

“Because of ICE’s refusal to bring our clients and other detained immigrants to court, hundreds of immigrants are unable to fully and fairly participate in their own hearings to decide their freedom, whether they can stay with their families or whether they will be deported to persecution or, even death,” said Andrea Saenz, Attorney-in-Charge of NYIFUP at Brooklyn Defender Services, “This policy is not just a small administrative change – it goes to the heart of whether our clients will get a fair day in court to contest their deportation. We, as a society, owe due process to people facing such enormous consequences—not to lock them up and show them a TV screen where they cannot properly hear the judge, speak to their lawyers, or see their loved ones in-person.”

“When ICE stopped the in-person production of detained immigrants at the Varick Street Immigration Court, it was not only an affront to the dignity and humanity of our most vulnerable clients, but a direct assault on their fundamental due process rights to be present during their hearing and trials,” said Jennifer Williams, Deputy Attorney-in-Charge of the Immigration Law Unit at The Legal Aid Society, “The refusal to produce policy has effectively sanitized the immigration courtrooms of our clients’ raw human emotions and experiences, which are at the heart of these proceedings, and is preventing effective and meaningful representation by their attorneys.  This policy is yet another example of the Administration’s goal to carry out swift deportations without due process of law.”

“ICE’s refusal to bring New Yorkers to the immigration courts in which their fates will be determined represents yet another effort by this administration to deport as many people, with as few protections, as possible,” said Sarah Deri Oshiro, Managing Director of The Bronx Defenders’ Immigration Practice. “This is a bald attempt to punish a ‘sanctuary city’ and undermine the successes of the nation’s first universal representation program which has ensured that hundreds of families have remained united.”

“We are proud to be part of this important lawsuit to vindicate the constitutional and statutory rights of detained immigrants in the New York area,” said Robert Gunther, a partner at WilmerHale. “ICE’s policy of refusing in-person hearings is wrong on every level and is just the latest effort on the part of the current administration to deny rights to those most in need of our compassion and our help.”

“Detained immigrants are guaranteed a right to due process, and the ICE policy infringes on that right,” said Susan Gittes, a partner at Debevoise.  “The hearings taking place by video teleconference are totally inconsistent with the bedrock principles of our judicial system—judges are forced to make credibility determinations while separated by video screen, detained immigrants cannot confidentially confer with their attorneys during proceedings, and detained immigrants with intellectual disabilities or in need of interpretation services may not even be able to understand the hearings that determine their rights. These plaintiffs have a right to fair hearings and full access to their counsel, and this lawsuit seeks to restore those rights.”

###

The New York Immigrant Family Unity Project, run collectively by Brooklyn Defender Services, The Bronx Defenders, and The Legal Aid Society, is the first program in the nation providing publicly-funded counsel to immigrants detained and facing deportation and separation from their families and communities.

BDS TESTIFIES BEFORE THE NYC COUNCIL COMMITTEE ON GENERAL WELFARE OVERSIGHT HEARING ON CLIENT EXPERIENCE AT HRA CENTERS

TESTIMONY OF:

Anca Grigore – Supervising Attorney, Civil Justice Practice

 

Presented before:

The New York City Council

Committee on General Welfare

 

Oversight Hearing on Client Experience at HRA Centers

 

and

 

Ints. 1332-2019, 1333-2019, 1335-2019, 1336-2019, 1337-2019, 1347-2019, 1350-2019,

1359-2019, 1377-2019, 1382-2019, and 389-2019, Res 071-2019, and T2108-3440

 

February 4, 2019

My name is Anca Grigore and I am a supervising attorney of the Civil Justice Practice at Brooklyn Defender Services (BDS). BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 35,000 clients in Brooklyn every year. BDS’ Civil Justice Practice (CJP) aims to reduce the civil collateral consequences for our clients who have had interaction with the criminal, family or immigration justice systems. Through legal advocacy in court and at various agencies, CJP helps people remain in their homes, maintain their public benefits, stay in school, keep their jobs, and protects their consumer rights. One of our primary services is to provide our clients with support when their public benefits are terminated or applications for essential benefits are denied. Our attorneys and advocates provide advice and eligibility screenings, accompany clients to the Human Resources Administration (HRA) offices, and provide representation to clients challenging HRA’s decisions in administrative hearings and state court appeals.

I thank the City Council Committee on General Welfare and Chair Stephen T. Levin for the opportunity to testify today about our clients’ experiences at HRA Centers and to comment on the bills introduced today that seek to address the problems and remove some of the barriers that so many of our clients and other New Yorkers experience when seeking benefits and assistance from HRA.

INTRODUCTION

Like everyone here, we were appalled by the abusive and violent mistreatment Ms. Headley and her 1-year-old son suffered at the hands of officers and security guards on December 7th at the HRA office on Bergen Street in Boerum Hill. The outrage over this incident and HRA’s handling of the situation is justified, and we applaud the efforts aimed at preventing or de-escalating direct confrontations like this one in the future. Ms. Headley is not alone in her experiences of being mistreated by HRA and other city agencies tasked with helping those in need. That said, it is important to recognize that this mistreatment does not always take the form of a physical altercation and that people’s experiences are not often caught on video. It is imperative that we recognize and seek to address the countless, often more banal, harm suffered by public assistance recipients and applicants on a daily basis.

As a provider of legal services for the indigent, a majority of our clients are eligible for some form of public assistance. As a result, we routinely hear about problems maintaining assistance and about negative experiences at HRA job centers including: arbitrarily terminated benefits; hours-long wait times at job centers; hostile, argumentative and unsympathetic staff; case workers not following HRA policies, rules and regulations; members of clients’ families being unnecessarily removed from cases; language access not provided (despite being required to by local law); and unnecessarily frequent visits to retain benefits.

These experiences are so ubiquitous that many clients decline to relay these occurrences at all, knowing that this treatment is just par for the course. In fact, it was familiarity with this type of difficulty and delay that led Ms. Headley to sit on the floor and wait. She expected to be kept waiting, with nowhere to sit, for hours. If not for the appalling and extreme reaction of HRA staff, she likely would have suffered in silence; the hours spent sitting on the floor with her child would have been remembered as just another trip to the center.

People seeking benefits are often in crisis and facing financial and emotional hardship, and the regular mistreatment by HRA only compounds the strain and trauma they experience at a time when they may be at their most vulnerable. Most of our clients are resilient and, like Ms. Headley, they suffer this mistreatment and press on despite verbal denials and discouragement from customer service workers (the first staff person they interact with), despite the need for numerous applications for a benefit they know they are eligible for, despite multiple trips to the center making the same request to add a newborn baby to their budget or remove a household member who has moved out. These stories are common and we hear about them often, but for every person willing and able to endure these difficulties, there are countless others who are simply unable to overcome the barriers to approval and may ultimately give up. Those in need who have tried, and failed, to access benefits they are eligible for are being failed by this agency and by this city.

CLIENT STORIES

Ms. P – Language Access Issues and Verbal Denial of Applications

We represented a tenant in housing court who was facing eviction from a rent-stabilized apartment. Our office advised her on how to request emergency assistance from HRA to assist in paying her rent arrears. Ms. P, a Spanish-only speaker, went to apply at 275 Bergen Street (the same center Ms. Headley attended), but was denied the ability to submit the required application at the center. The worker provided the applications in English only and refused to accept anything because she did not have a lease. Our client tried to explain her situation and provide letters and documentation from our office, explaining the housing court stipulation that guaranteed her a lease as soon as the arrears were paid, but the caseworkers refused to accept them because they were not the exact type of verification they were used to receiving. They also refused to provide proof of her attempt to apply that we could use to ask the housing court for more time prior to eviction. After multiple attempts, a bilingual non-attorney advocate from our office accompanied her in person to ensure HRA physically took the documents we wanted to submit. The customer service worker still would not take the documents or allow them to apply. Our advocate asked for a supervisor. The customer service worker refused. The customer service worker would not provide their name or contact information or that of their supervisors. Our trained legal advocate could not get past customer service.

After consulting with an attorney, we sent our advocate back to the center with the client and the application for emergency assistance already filled out and our supporting documentation attached. When our advocate presented already-signed papers to submit, the worker yelled at them, and said she was reporting them for fraud because our advocate, instead of the client, had filled them out. Our advocate explained that we assisted in filling the papers out, in part, because they were only provided in English to our Spanish-speaking client. The worker said that she did not care, that it was still fraud to fill out papers for someone else, and then screamed that she would transfer the case to the fraud unit. The worker stood up and leaned over the counter continuing to scream at them, until our client was so uncomfortable that she ran out of the center. The worker followed them out to the front door and waited until they left. After this incident, one of our attorneys had to call the director and make arrangements to submit the documents directly.

Ms. F. – “11 visits to HRA, 4 months, and a fair hearing, but mission accomplished”

Ms. F suffers from mental health issues and was in need of public assistance. She applied for benefits, and while her application was being processed, she had to move. She went to the center to change her address. HRA failed to act on her request to change her address, and instead continued sending mail to her old address. As a result, she missed mandatory eligibility appointments, and her application was denied. She did not receive notice of her denial, because that was also sent to the wrong address. She returned to the center and reapplied again. HRA again used the same old address that was already in the system. This time, HRA changed her “home address” to be her new, correct, address but they left the old address as the “mailing address”. She was denied a second time for failing to attend the appointments she was not notified of. She returned a third and fourth time with a social worker from our office. Ultimately, it required an attorney to get involved and a fair hearing to be held before her case was ultimately approved. Her social worker, who had been trying to get this case approved in order to assist her in accessing necessary services summed up their experience when HRA finally complied with the fair hearing decision, opened the case, and issued benefits. “11 Visits to HRA, 4 months, and a fair hearing, but mission accomplished.”

Mr. F – HRA Processed the Wrong Application, Causing Delay and Eviction.

Mr. F went to the Coney Island Job Center to apply for ongoing assistance and emergency rental assistance. He was told that he could not apply for both at the same time, and proceeded with the application for arrears because it was more urgent and he faced eviction in housing court. After being processed for 30 days, his application was denied because he lacked the ongoing ability to pay the rent that he could only acquire by applying for ongoing assistance. A second attempt was derailed because of a failure to provide all of the documents HRA expected to receive. A third attempt was made but ultimately, the delay was so great and the arrears accumulated to a point where his family was evicted and had to enter a family shelter while the third application was still being processed. Unfortunately, he was not only evicted, but also ended up with a money judgment against him for nearly $20,000. Had his application been approved in a timely manner he would have been eligible for FEPS rental assistance to pay the arrears and the ongoing rent, avoided eviction, and not been saddled with a judgment that will burden him for years to come.

This family was only able to make two attempts to apply for assistance. Most of our clients try multiple more times, if necessary, before they are able to get the help they need. The barriers faced are so routine that Mr. F’s attempts were seen as a failure on his part to put in the effort necessary to apply for benefits. No one should have to (and many do not have the ability to) visit the center six or seven times for their applications to be accepted.

Ms. A. – HRA Called the Police, and Order of Protection Prevented Re-Certification

Ms. A, a client who suffers from mental illness, was involved in a verbal dispute with a caseworker while she was attempting to re-certify her public assistance case.  The caseworker called the police on her for this verbal altercation. Ms. A was arrested at the center, and the caseworker obtained a full order of protection against her.  Because of this order of protection, Ms. A was not able to go back to the center to complete the re-certification or she would be subject to re-arrest for contempt. She tried calling other centers herself to see what else she could do, but no one would answer the phone.  She tried to go to other centers to re-certify there, but was told they were not her assigned center and turned away at the door.

After relaying her story to her BDS defense attorney, Ms. A was referred to our office’s Civil Justice Practice. After several attempts of contacting other center directors and asking for an exception, we were able to arrange for her to re-certify at another center.  By this time, the benefits that Ms. A relies on had already lapsed. Had she not been able to contact a civil attorney, Ms. A would have had no recourse.

Ms. J. – HRA Homebound Unit Fails to Re-Certify Homebound Client

Ms. J is a single mother to three special needs children, one of whom has severe autism and other disabilities that cause him to need around the clock special care, most of which is funded by Medicaid.  Like her children, Ms. J also suffers from disabilities and is homebound as a result. When it came time for recertification, caseworkers from the homebound unit came to her house to facilitate her submission. The caseworkers left her with no documents, no receipts, and none of their contact information. Her case later closed for failure to re-certify. Ms. J was panicked—she is very diligent and had never let her case close before—as the case closure meant her Medicaid was turned off as well, and all of her son’s much-needed services were not being paid. She remembered the names of the caseworkers that came to see her, but all of her and her attorney’s attempts to reach them failed.  When her BDS attorney was finally able to reach Ms. J’s HRA center, they had no notes or evidence of a homebound visit.

Ms. J had no time to wait for another homebound appointment, so she went to the center to re-certify in person. She brought all of her documentation, so that she would not have to return, but the caseworker demanded additional documentation (which was unnecessary under HRA rules and regulations.) Ms. J’s BDS attorney began calling her caseworker and supervisor repeatedly to tell them our office could help and would fax any other documentation they needed.  The HRA workers told her attorney they did not understand “why she cared so much or why she was helping her.” Her attorney explained Ms. J’s unique and urgent situation and was scoffed at. Our office faxed all necessary documentation, an advocacy letter, and attached HRA rules and regulations to show the documents they were demanding were not necessary but received no response. The caseworkers and supervisors continued to ignore all calls from BDS for two more weeks.  After calling from the office every single day multiple times a day Ms. J’s attorney called from her personal cell number and HRA answered immediately. Upset to learn it was BDS they made it clear that they were going to do this on their own timeline and were not concerned with her emergency. BDS continued to call up the chain of command until Ms. J’s case was eventually turned back on, after a great deal of unnecessary delay and disdain from every caseworker we spoke to.

RECOMMENDATIONS

Agency leadership at HRA publicly recognizes many of its failures and has made promises and strides toward change, but their desire to better serve the community has yet to translate into action by many of its front-line staff or change the client experience at the centers.

We thank the Council for introducing bills to help address the many roadblocks people seeking benefits encounter every day and prevent what happened to Ms. Headley from ever happening again. This, of course, is only the beginning of the work that is needed, and we hope the HRA will make the changes necessary to improve the treatment of New Yorkers looking to safely and easily access the benefits and support they need:

Int. 1332 – Office of the Special Handler

We support the council’s efforts to increase oversight and accountability within HRA and to provide increased support for clients struggling to access or maintain public benefits in a complicated system.  HRA’s currently operates the Office of Constituent Services, which boasts its roles as including: providing information to better assist clients; taking complaints about problems with benefits; and hearing grievances about specific workers or treatment at HRA centers.

Despite the good intentions behind the creation of the Office of Constituent Services, it has not had the type of impact for individual clients’ problems that advocates or clients hoped it would. Any effort to create a new, or additional, oversight office in the form of the Office of the Special Handler within the department should make sure to examine what works and what does not within the Office of Constituent Services. While the Office of Constituent Services provides information and resources in some situations, it does not rise to the level of resolving substantive problems or restoring benefits to clients who face erroneous reductions or discontinuances and has clearly been unable to curb the client mistreatment at the focus of this hearing.

Int. 1333, 1350, 1359, 1382, 1377, 1389, 3440 – Reporting and Data Collection

This set of data collection and reporting bills move forward efforts to bring greater transparency to the HRA, as long as reporting requirements are enforced and data is adequately collected. HRA and the Council should ensure that any and all reporting is used to generate recommendations that improve HRA operations and client experiences.

In regards to Int. 1333 specifically, we must reiterate that the NYPD should not have been called in Ms. Headley’s case and should not be called for similar matters, and we join the Council in our hope that some of the measures discussed today will help reduce the likelihood of these incidents occurring. That said, the public has a right to know about HRA and NYPD misconduct when these incidents do happen. The New York Times reported that law enforcement has been called to food-stamp offices 2,212 times and arrested 97 people since January 2017, but does not signify how many of these incidents involved use of force.[1] Int. 1333 will require regular reporting on any use of force and will allow for greater transparency. Disciplinary measures and procedures taken in these incidents must be public to ensure the community’s confidence that HRA and any law enforcement agency are taking these incidents seriously.

Int. 1335 – Full-time Licensed Social Workers

Int. 1335 would require every Department of Social Services/HRA Job Center and SNAP Center to have a full-time licensed social worker on staff.  Having a dedicated social worker whose sole role is to assist clients needing extra support has strong potential to improve client experiences, but adequate staffing and implementation are crucial to success. These social workers should be able to assist individuals with mental health issues and disabilities and facilitate enrollment in appropriate programs for clients in crisis. They could also provide crucial assistance to their colleagues, sending a message to HRA staff that it is important to support and empower vulnerable clients and that there are resources available to help them in this task. Done properly, this has potential to alleviate some of the tension caused by the more difficult or traumatic staff interactions and can improve client experience overall.

If poorly implemented, however, this initiative could raise additional barriers. If staffing is inadequate a backlog to access the social worker for clients who would benefit from their services could lead to increased frustration and missed deadlines. The addition of a dedicated staff person whose role becomes dealing with “difficult” clients runs the risk of giving caseworkers a way to avoid assisting a client who might be eligible for benefits unless they see the social worker first.

To avoid some of these potential pitfalls and to effectively address the needs of the clients, social workers at HRA offices should also have the authority to provide remedies to people overwhelmed by the experience but still in need of programmatic assistance, e.g. taking clients to the front of the line, giving clients appointments to return, voiding recent adverse actions, extending deadlines for document submission or completing a face-to-face appointment, etc.

A social worker speaking with a person in crises is certainly better than a security guard, but this should be more than just another HRA staff member who can tell clients “no” in a gentler manner.

Int. 1336 – De-escalation and Trauma-informed Training

Int. 1336 would require DSS to conduct training on de-escalating conflict and trauma-informed care for all employees working at SNAP Centers and Job Centers. It is worth noting that often it is HRA staff, not clients, who escalate difficult situations. HRA has already announced that all peace officers will be re-trained in de-escalation techniques, it is equally important that all staff be similarly instructed. These trainings can be viewed not just as a means of protecting clients from unnecessary hardship but also as an effort to provide staff with resources to draw on for their own professional development and well being. Tasked with serving clients who are themselves dealing with traumatic experiences would be draining for anyone; additional training on issues like vicarious trauma and implicit bias can help staff gain perspective to recognize the difference between an escalating conflict and a person who just needs to vent the frustration caused by economic uncertainty and long wait times.

Int. 1337 – Space for Children 13 years of age and under

Int. 1337 would require a space for children 13 years of age and under at DSA/HRA Job and SNAP centers. These spaces do exist at these centers, but, as in Ms. Headley’s case, exclude children who are not fully toilet-trained. The age of children or other factors should not exclude any child under 13 from being allowed in the child center. Remedies should also be in place if the child center is full. Conversely, if HRA centers cannot properly accommodate parents with young children, then other solutions for providing access to caseworkers and applications for parents must be developed.

Int. 1347 – Online Scheduling System

Int. 1347 would require DSS/HRA to create a system in which clients could schedule appointments online or over the phone. This technology could decrease backlog and waiting times and provide clients with some measure of control and ownership over the process to clients in need, contributing to an overall better client experience. The uncertainty of how any given trip to the center will go, or how long it might take, means even an appointment that goes smoothly and quickly ends up being a source of stress and anxiety and likely requires blocking out a full day. It cannot be overstated how empowering it would be to allow people to schedule their appointments at a time that does not require dropping other obligations, missing work, or being late to pick up their children from school.

Implementation should be mindful of clients’ ability to access technology and assure sufficient staff availability for clients visiting the center without an appointment. Diversion of staff to scheduled-appointments only could result in longer wait times for walk-ins and an inability to accommodate emergency situations. Similarly, delays in beginning scheduled appointment could be a source of frustration and conflict. In addition, there will likely be a question as to how long a person has to wait before there is sufficient “good cause” for missing the appointment, which would allow for rescheduling

ADDITIONAL RECOMMENDATIONS

Enforce Access to Receipts for Meetings and Submitted Documents

One of the greatest sources of frustration for our clients, and therefore one of the interactions most likely to escalate to an unnecessary altercation, is that people must make multiple trips to the center for the same purpose. Often, our clients make many trips to HRA offices to make the same request only to be verbally denied with nothing to show for it; no proof their request had even been made. This occurs when clients seek to add or remove someone from a budget, when they need to change an address, or when they seek to submit requested documents necessary to complete a previously submitted application or recertification. Routinely, clients are told they are submitting the wrong type of document and their attempts at submission will be refused.

Local Law 20 of 2018 requires the Department of Social Services to create and issue a job center “appointment receipt” for all individuals who visit job centers for scheduled appointments. It records any documents received by the agency from the visitor, the reason for the visit, and a time stamp indicating the time and date a visitor was present at the job center. If someone has an appointment with a specific worker or unit or completes the appointment according to HRA’s standards, they get a receipt. However, in many other cases, people who visit the center have no record of their visit. This should be changed.

While a successful visit might result in documentation being generated or a specific document receipt being given, a client who leaves unsatisfied has no proof of their visit. We ask that HRA generate a written receipt of every trip to the center, even if they were unable to help as the client hoped. When someone enters the center, they could easily be given a printout with their own words on it, e.g.: “I’m here because I need to add my newborn to my budget.” If this request is not acted on by a caseworker, the client would still have this proof of their attempt regardless of whether the request was handled correctly or incorrectly. As it stands, clients are often not believed when they claim to be making the same request a second, third, or fourth time. The lack of documentation is problematic both at the center level as well as at administrative hearings.

For example, a client who may have tried numerous times to change their address at the center will still be receiving mandatory notices at the wrong address. Not only has this missed mail resulted in a missed appointment and a discontinuance or reduction of benefits, but they are told by caseworkers and judges alike that they never made this request and therefore do not have “good cause” for failing to comply with the appointment.

Re-Train HRA Staff on Eligibility, Regulations, and Procedures and Require that Supervisors Review Statements Made to Clients

HRA staff should be re-trained on substantive eligibility criteria, state law and regulations and HRA policies and procedures.  Our clients are often incorrectly denied benefits or have their benefits terminated unnecessarily because of staff error. Client experiences have shown that hostile situations often originate from, or are exacerbated by, a worker’s attempt to incorrectly enforce an eligibility requirement or alleged policy. For example, our clients are routinely told what will or will not suffice as verification documentation for emergency assistance, or are told that only a certain document will suffice when in fact there are numerous other options acceptable under the law.

Furthermore, there should be a requirement that any time someone is turned away, or told their documentation is insufficient, there must be supervisory approval before this refusal or final adverse action takes place. One of the reasons that clients are turned away so often is that it is much easier for a caseworker to refuse to process a request and move on to the next client; it makes their jobs easier and requires less time and effort than assessing a client’s eligibility or reviewing their documents to see if they are sufficient. If they have to go to a supervisor for sign-off, that is more difficult and may encourage them to take a second look at the client’s request and think of how to make the situation work. This requirement would guarantee that workers that may be mistakenly turning clients away repeatedly for the same reasons are identified and corrected and would provide opportunities to assure they are gaining information and education to better assist future clients.

We thank the City Council for your attention and care regarding these issues. We hope you consider BDS a resource as we continue to work toward improving the public benefits system.

If you have any question about this testimony, please contact Daniel Ball at dball@bds.org or (347) 592-2579.

[1] Ashley Southall and Nikita Stewart, They Grabbed Her Baby and Arrested Her. Now Jazmine Headley Is Speaking Out. December 16, 2018, New York Times, available at: https://www.nytimes.com/2018/12/16/nyregion/jazmine-headley-arrest.html