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BDS TESTIFIES BEFORE COUNCIL ON PROPOSED CHANGES TO ENFORCEMENT OF QUALITY OF LIFE OFFENSES

TESTIMONY OF:

Lisa Schreibersdorf – Executive Director

BROOKLYN DEFENDER SERVICES

PRESENTED BEFORE

The New York City Council Committee on Public Safety

JANUARY 25, 2016

My name is Lisa Schreibersdorf. I am the Executive Director of Brooklyn Defender Services (BDS). BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for 40,000 clients in Brooklyn every year. Because of this work we have a front-row seat in which to view most of the City’s criminal justice practices and policies. We are thankful that the New York City Council is continuing to seriously look at the wide-ranging harms, direct and collateral, inflicted by the criminal justice system with an eye toward balance, proportionality, fairness and racial equity. Specifically we would like to thank the Committee on Public Safety for extending to us the opportunity to testify about the bills introduced by the Council today, which we support.

The proposals being introduced today will go a long way towards easing the burdens created by the steady rise of punitive quality-of-life enforcement over the past two decades. This legislation will pave the way for fewer cases in criminal court and fewer people in jail solely because they are unable to pay small fines. It should also result in less paperwork and overtime for the New York Police Department. These are all good things. We thank Council Speaker Melissa Mark-Viverito, Courts and Legal Services Chair Rory Lancman, and Public Safety Chair Vanessa Gibson for their leadership in identifying these problems and seeing through to the introduction and active support of this legislation.

Unfortunately, in New York City, people are still arrested and jailed for acts like littering, drinking a beer in a park, or sleeping in a NYCHA stairwell. Over the past decade, more than 6 million summonses have been issued for the most minor of crimes, violations, and infractions, so many that the court system could barely manage. There are more than 1 million outstanding summons warrants which trigger automatic arrest upon law enforcement contact, a severe burden to both the public and to criminal justice resources. Currently Brooklyn Defender Services represents in criminal court, more than 2,000 people a year who have been arrested and held in custody for up to 24 hours and facing further penalties after being stopped and arrested for infractions and violations – not even crimes. Most of these cases involve clients who have summons court warrants or have been stopped for transit related offenses during the previous year. Despite not having committed an offense that rises to the level of a crime, our clients face jail time, evictions and even deportation because these minor infractions and violations are adjudicated in criminal court. This problem, which the Council is seeking to ameliorate with these bills, is immense, affecting literally hundreds of thousands of New Yorkers every year, mostly from communities of color, entirely because of the disparate nature with which these technically illegal acts are enforced. With this in mind, the City Council deserves substantial credit for easing the penalties for a group of New York City’s lowest-level crimes and violations.

For the past several months we have been interviewing our clients who come through criminal court on summons offenses and the results have been predictably appalling: A 48 year-old man who cut through a park on his way home from work; a middle-aged Spanish-speaking man who used his daughter’s student metro-card to enter the transit system; a young woman arrested for being in a park without a child; a 51-year-old man drinking a beer on the sidewalk outside his home; a 76-year-old man for public urination; a 21-year-old man for riding his bike against traffic. In each of these cases our clients had previous unpaid summons matters that, in general, they either could not afford to pay or did not understand fully their obligations to pay. In some cases the unpaid summonses were more than a decade old. I think it is fair to say that a night in jail is not necessarily a punishment proportionate to these behaviors, let alone the additional attendant penalties. It is these cases that the legislation introduced today will most directly affect in a positive manner. People in similar circumstances in the future will not necessarily have to worry about being brought through the criminal courts, with a threat of more jail time hanging over their head. This is a welcomed development and goes far towards aligning harm and punishment in a proportional way, avoiding the trauma of incarceration for thousands of people, reducing the risk of police encounters escalating and going a long way towards easing some of the feeling of oppression that is felt in the communities from which most of our clients come.

Another direct result of these reforms will be to free up time and space in criminal court so that more serious matters can be given the attention they require. Currently, the high volume of people brought through the system for these types of minor violations and infractions result in high arrest-to-arraignment times (sometimes up to 24 hours), longer spans between court appearances and, at times, a lack of court personnel and courtroom space for the swift adjudication of cases. The horrors the Council has heard about lengthy stays at Rikers Island and problems associated with monetary bail will also likely be impacted by this new legislation. The most positive reforms we’ve seen during the past two years have been the reductions in arrest, summons and overall police interaction numbers. These bills codify some of these current policies and will ensure that in the future there will not be a resurgence in arrests for things like being in the park after dark. These bills also send a message to the police that the

City Council will do its part of act as a guardian of the rights of the residents of this city against unwarranted over-policing.

Many technical questions regarding the implementation of these bills remain to be hammered out during the legislative process. Critically, moving these cases to civil courts removes the right to counsel guaranteed by the Sixth Amendment, which, in addition to ensuring advocacy on individual cases, also provides for an essential layer of oversight to the process. We hope that this issue will be carefully considered while the legislation is being reviewed.

In addition: Will the public be compelled to show identification to the police during interactions for these violations or risk arrest and detention? Will people have to show up to court, missing work, school or childcare responsibilities? Will there be a way people to ask for a new court date? Will there be evening hours? Can the summons forms be updated so people can readily understand them? These are just a few of the issues we are interested in hearing more about and which we are happy to share our experience to help resolve.

Looking to the future, once these bills pass, many issues highlighted to Council during previous discussions on summons reforms remain unaddressed, such as inequitable and over-enforcement.  There is more work to be done as the Council has foreseen with the introduction of the reporting bills. Again BDS is ready to assist in any way to continue a dialogue that will maximize the benefits of this legislation.

We hope the Council will consider a review of the civil penalties and will also expand the list of decriminalized offenses. Even with these welcome changes, it appears likely that tens of thousands of people will still be brought through criminal summons court each year where criminal records, jail and even deportations await. For those lucky enough to have civil court adjudication, punishments may still be out of line with offenses. A $250 fine, while it might seem reasonable to Council Members and staff, is a major sum for people living paycheck to paycheck, and can be the difference between feeding their families or going hungry, paying rent or becoming homeless. Civil judgments ruin credit scores and, like arrests and criminal court involvement, saddle our clients with permanent punishment. If the police are going to be involved at all, the preference – for all of these violations – should be to ask people to stop what they are doing in the first instance.

The NYPD Commissioner has insisted that without police involvement there will be no way to actually force people to behave, but a growing body of evidence, backed up by our own decades of experience in the field, shows that accountability is not asked of everyone in an equitable way. Demographic groups already under siege from a host of structural issues in the city, from housing to healthcare to employment, are typically held to a higher level of accountability than other groups, especially with regards to the minor infractions under discussion today. The Council plan – as Public Safety Chair Vanessa Gibson acknowledged Friday as a guest on WNYC – does little to address the inequitable, if not outright discriminatory enforcement of these violations. Black or Latino New Yorkers received at least 81 percent of summonses issued between 2001-2013, including 90 percent of littering offenses and 93 percent of spitting offenses. Moving these cases to civil court does not eliminate the problem. Any court system, civil or criminal marked by such obvious racial bias will suffer from a lack of legitimacy in the eyes of those people it is meant to control.

We would again like to thank the Council for moving definitively to address these issues, which are central to the fair administration of justice in our City and for extending to us the opportunity to comment on the bills introduced today. We look forward to remaining engaged with the Council as these bills move through the legislative process.