177 Livingston Street 7th Floor Brooklyn, NY 11201 (718) 254-0700 info@bds.org

Letter

BDS CALLS FOR AN NYC COUNCIL HEALTH COMMITTEE HEARING ON HEALINGNYC’S ALLOCATION OF OPIOID OVERDOSE PREVENTION FUNDS TO THE NYPD

May 30, 2017

Hon. Corey Johnson

New York City Councilmember

224 West 30th Street, #1206

New York, NY 10001

 

Dear Council Member Johnson:

I write regarding recent news that the largest share of City funding for Mayor Bill de Blasio’s new initiative to combat the opioid epidemic, HealingNYC, is slated to be allocated to the New York Police Department (NYPD).[1] I respectfully request that the New York City Council Committee on Health hold a public hearing on this funding allocation as well as the City’s attempt to pair a public health approach to problematic drug use with increasingly aggressive law enforcement tactics.

As Chair of the Committee on Health, you have been a leader in the fight to protect the health and wellbeing of New York City’s most vulnerable residents, most notably those in our jails on Rikers Island. You have also taken this city forward with funding for the Department of Health and Mental Hygiene to study safe injection facilities for intravenous drug users.

The opioid epidemic is among the most deadly forces in our city today, warranting a strong response from policymakers. I appreciate that Mayor de Blasio is spearheading an effort to expand the use of life-saving naloxone kits and medication-assisted treatment, as well as other important initiatives to reduce the stigma of addiction and mental illness. However, I am concerned this important work could be undermined by regressive law enforcement strategies that further marginalize, stigmatize and ultimately criminalize the very people the Administration seeks to support. Indeed, earlier this week, Crain’s reported that “nearly half of the $143.7 million budgeted for HealingNYC through fiscal year 2021 will go to the NYPD, mostly to step up arrests of drug dealers.” Much of the funding provided to the police will reportedly be used to investigate overdoses with the goal of bringing criminal charges against people alleged to have supplied the drugs.[2]

There is a growing recognition among policymakers of all parties, many of whom may struggle with addiction themselves or have friends or family members who struggle with addiction, that criminalization is an ineffective and, in fact, often very dangerous approach to drugs. These dangers are only heightened as police and prosecutors here and across the country pursue homicide-like charges or other very serious charges against alleged suppliers when overdoses do occur. Among many other serious risks, experts have noted that increased enforcement can discourage people who witness overdoses from calling 911 because suppliers are often close acquaintances and may even be the witnesses, themselves.

Even if a greater investment in law enforcement efforts against suppliers were an effective approach, the Council should consider whether it makes sense for those funds to come from HealingNYC or rather be diverted from other NYPD functions. For example, the most common drug arrest charge in 2016 was low-level marijuana possession, with 18,136 arrests. The disproportionate impact of these arrests aggravates racial and economic inequality in our society, undermines trust in our criminal legal system, and contravenes the beliefs of the majority of Americans (60 percent), who support full legalization of marijuana.[3] Moreover, research funded by the National Institute on Drug Abuse found that legally protected marijuana dispensaries were associated with reductions of 16 to 31 percent in opioid overdose deaths.[4] (HealingNYC seeks to reduce opioid deaths by 35 percent over the next 5 years.) Other experts have argued that the criminalization of marijuana led to the over-prescription and over-use of opioids and eventually the epidemic that we are struggling to address today. Simply put, marijuana seems to be a safer alternative to opioids in pain management, but criminalization undercuts that benefit.

At the Committee on Public Safety’s Executive Budget hearing on Monday, NYPD Chief of Detectives Robert Boyce said of the Department’s response to the epidemic: “Our focus is not on the individual addict. Our focus is on the street level as well as interdictions coming into the country.” Arrest data provided by the New York State Division of Criminal Justice Services does not support this statement. After low-level marijuana possession, the next most common NYPD drug arrest charge, or fifth most common arrest overall, in 2016 was low-level non-marijuana drug possession, or Criminal Possession of a Controlled Substance in the 7th Degree, with 16,630 arrests. The most common drug sale arrest charge was Criminal Sale of a Controlled Substance in the 3rd Degree, with 5,628 arrests, or approximately one-sixth of the number of low-level drug possession arrests.

We believe a public hearing on this critical subject would help to evaluate the efficacy of the different components of HealingNYC and facilitate greater transparency and accountability in our City’s overall approach to drug use.

Because City administration and agency officials generally are permitted to testify first at Council hearings, I ask in advance that the Council request testimony from NYPD with research to support the use of scarce public funds to disrupt the supply chain of heroin, fentanyl or other drugs.

Thank you for your consideration of my request.

Sincerely,

Lisa Schreibersdorf

Executive Director

Brooklyn Defender Services

 

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

[2] Ibid.

[3] Art Swift. Support for Legal Marijuana Use Up to 60% in U.S. (2016), http://www.gallup.com/poll/196550/support-legal-marijuana.aspx (last visited May 30, 2017).

[4] National Institute on Drug Abuse, Study Links Medical Marijuana Dispensaries to Reduced Mortality From Opioid Overdose NIDA (2016), https://www.drugabuse.gov/news-events/nida-notes/2016/05/study-links-medical-marijuana-dispensaries-to-reduced-mortality-opioid-overdose (last visited May 30, 2017).

LETTER TO SPEAKER MARK-VIVERITO: NYC MUST REFORM HIGH-ARREST POLICIES TO PROTECT IMMIGRANT NYERS FROM DEPORTATION

December 1, 2016
Hon. Melissa Mark-Viverito
Speaker, New York City Council
250 Broadway, Suite 1856
New York, NY 10007
Dear Speaker Mark-Viverito:

As immigration legal services, juvenile justice, and criminal defense providers and advocates, we stand ready to assist the New York City Council in its efforts to protect the rights and well-being of immigrants in our City. The multi-disciplinary staff in our immigration practices, funded in part by the Council’s visionary New York Immigrant Family Unity Project (NYIFUP), as well as the Unaccompanied Minor Children (UMC) and Adults with Children (AWC) initiatives, will zealously fight any and all efforts to remove our fellow New Yorkers from their families, communities and country.

One way the City can reduce the likelihood of Immigration and Customs Enforcement (ICE) arrests, detention and deportation is to minimize immigrant New Yorkers’ contact with the criminal and juvenile justice systems. Specifically, as the Council continues to negotiate the implementation of the Criminal Justice Reform Act with the New York Police Department (NYPD), it is critical to bear in mind that an arrest even for the lowest-level violation can lead to deportation, broken families and broken communities. Under the Priority Enforcement Program (PEP-Comm), a federal mass-deportation regime, all fingerprints taken by the NYPD are automatically provided to the FBI and ICE. The NYPD’s high-arrest policies thus effectively provide the federal government with ready-made lists of thousands of immigrant New Yorkers whose humanity, family and community ties, and even lawful residency can be undermined simply because they bear the label of “criminal” for the most paltry alleged offenses. ICE collects information gathered through arrests regardless of whether the District Attorney declines to prosecute a case, a case is still pending so has no final resolution, all the charges are dismissed, or a case results in a non-criminal violation.

The President-elect has committed to vastly expanding existing deportation efforts, likely targeting those who have been arrested, even for non-criminal violations. In an interview with 60 Minutes on November 13th, he estimated that his mass deportation regime would sweep up between two and three million people with criminal records.[1] Senior officials in his transition team later clarified that mere arrests, regardless of findings of innocence or case dismissals, would trigger deportation actions.[2] For this reason, among others many of our organizations have cited in the past, civil summonses are the preferred enforcement action, where any such action is necessary. (Of course, this holds true for immigrants and non-immigrants alike.)

Our clients are terrified that they and their loved ones might be jailed and ultimately banished from the country that is their home. For many, the only source of hope in their lives at this time may be that they live in New York City, where the Council has passed legislation to restrict the circumstances in which the City will honor a detainer request by ICE. Unfortunately, ICE continues to arrest immigrant New Yorkers in their homes, in their communities, in homeless shelters, in the workplace, and in the courthouses. ICE particularly targets non-citizens with an arrest history, including people with open pending criminal cases or cases that resulted in a low-level disposition or violation. As a result, arrests for being in the park after dark, for possessing an open container of alcohol, or for other harmless activities, which are largely permitted in more affluent neighborhoods, essentially flag vulnerable New Yorkers for priority enforcement by ICE. If the President-elect ultimately implements the policies that he has promised, New York City must stand up and resist—not be complicit.

Other critical ways New York City can fight back against mass deportations, particularly in the likely event of substantially increased deportation proceedings, are by preserving and increasing funding for NYIFUP and the UMC and AWC initiatives. Our preliminary analysis of NYIFUP data suggests that having an attorney increases the likelihood of being able to remain in one’s home and community by a factor of ten.

We share the Council’s belief that all New Yorkers—and all Americans—benefit when our diverse communities can thrive together. As you have noted, immigrants, regardless of their status, are the backbone of our City, our culture and our economy. New York City—the superlative arts, cuisine, mom-and-pop businesses and street life that draw visitors from around the world—is as defined by newcomers as it is by the successive waves of immigrants that came before us. We must celebrate this unique gift, but we also must protect it. Making everyone feel welcome in our communities is essential to their safety and ours. Existing high-arrest policies undermine all of these benefits and threaten the health and safety of our City. They must be curtailed, now more than ever.

Thank you for your consideration. We look forward to continuing to work with you on these and other matters in the months and years ahead.

 

Sincerely,

 

Andrea Sáenz and Nyasa Hickey, Supervising Attorneys, Immigration Practice, Brooklyn Defender Services

Maria E. Navarro, Acting Attorney-in-Charge, Immigration Law Unit, The Legal Aid Society

Jennifer Friedman, Director of Immigration Practice, The Bronx Defenders

Rich Leimsider, Executive Director, Safe Passage Project

Anne Pilsbury, Director, Central American Legal Assistance

Eve Stotland, The Door’s Legal Services Center

C. Mario Russell, Director, Division of Immigrant & Refugee Services, Catholic Charities Community Services.

 

 

CC: Nisha Agarwal, Commissioner, Mayor’s Office of Immigrant Affairs

 

[1] http://www.cbsnews.com/news/60-minutes-donald-trump-family-melania-ivanka-lesley-stahl/

[2] http://www.latimes.com/politics/la-na-pol-trump-immigration-criminals-20161114-story.html

LETTER TO GOV. CUOMO REQUESTING HIS SIGNATURE OF THE GRAVITY KNIFE REFORM BILL

June 23, 2016

The Honorable Andrew M. Cuomo
Governor of New York State
NYS Capitol Building
Albany, NY 12224

Re: Support for S6483 (Savino) / A9042 (Quart)

Dear Governor Cuomo:

As the Executive Director of Brooklyn Defender Services (“BDS”), I write to respectfully urge you to sign S6483 (Savino)/A9042 (Quart) into law. This bill simply clarifies the definitions of switchblade knives and gravity knives to exclude ordinary folding knives that are commonly sold on-line and in hardware stores to workmen and artisans, and which only specially trained law enforcement officers are able, often only after several tries, to flick open by exertion.

BDS is a comprehensive indigent legal service organization that provides multi-disciplinary, and client-centered criminal defense, family defense, immigration and civil legal services, and social work support to more than 40,000 indigent Brooklyn residents every year.

EXISTING LAW

Currently, possession of a switchblade or a gravity knife is prohibited under Penal Law § 265.01 (1), which makes possession of such knives a “strict liability” crime. In other words, simple possession of these knives, even without any criminal intent, is a crime. Possession in the Penal Law is not limited to one’s person; it encompasses possession in one’s car, closet and even toolbox. Under current case law, a person may be guilty of a misdemeanor for possessing a commonly-sold folding knife, even if that knife is not meant to be opened by the force of gravity, and even though the possessor is unaware that the knife could be opened in that manner.

PROPOSED AMENDMENT

This legislation would narrow the definition of switchblades and gravity knives to clarify that they “do not include a knife that has a spring, detent, or other mechanism designed to create a bias toward closure and that requires exertion applied to the blade by hand, wrist, or arm to overcome the bias toward closure and open the knife.” This definition excludes ordinary folding knives which are not meant to be opened in the manners typical of switchblades or gravity knives. It would conform the law to match people’s very reasonable expectations about carrying tools and also to send a message that the residents of this state deserve to go about their law-abiding lives in peace. It is important to remember that, under this legislation, any and all assaults, robberies or other crimes in which knives are used would remain felony offenses and punishable with years in prison.

JUSTIFICATION

The need for this legislation is clear. Tens of thousands of New Yorkers have been prosecuted for being in possession of—either on their person, or somewhere in their car or home—an instrument they use peacefully in the workplace, simply because it meets the technical legal definition of a “gravity knife.” BDS represents thousands of clients every year who are charged with the relevant offense, Criminal Possession of a Weapon on the Fourth Degree (CPW4), including stagehands, carpenters, and movers in uniform who are caught with box cutters. As always, it is critical to remember that those who are arrested for any reason face not only a prospective sentence handed down by a judge, but also many other consequences that impact individuals, families and, indeed, entire communities, including job loss, deportation, curtailed access to education and more. ‘Criminal Possession of a Weapon in the Fourth Degree’ does not look good on a job or college application.

On June 3, 2016, WNYC’s the Brian Lehrer Show included a segment on gravity knives. Each and every one of the callers had a personal story of being negatively impacted by our state’s outdated gravity knife law. When closing the segment, Mr. Lehrer noted his phones were ringing non-stop, and that he could continue taking calls from people with similar stories all day. Norman of Huntington, Long Island, called in with the following story:

“My son had a similar experience to your prior caller. We live in Huntington in Suffolk County. He works for a kayak company – Glacier Bay Sports – where he did lessons, demonstrations for rescue, untying boats, cutting boats free, etc. He was visiting some friends at NYU. At 12 o’clock at night, he gets stopped by a cop in a squad car. They see the clip that holds [the folding knife] in his rear pocket. They ask to see it. He says sure. He shows it to them. They don’t even test it. They just handcuff him and throw him in the squad car and two days later he’s out of jail. After $4,000 in legal fees and a letter from his employer indicating that it was mandatory for him to carry this for safety purposes, etc., case dismissed. It was totally absurd. Losing days’ work. Losing two nights in jail. We couldn’t even find out where he was.” (Note: Norman’s son was not a BDS client.)

When New York criminalized “gravity knives” in the 1950’s, the term was used to describe large switchblade-like knives. However, the definition included in the law encapsulates all knives that can be opened by gravity or a centrifugal force. In modern times, New York City law enforcement officials and others throughout the state often use the law to arrest and prosecute individuals in possession of pocket knives, utility knives, box cutters, and other items that are commonly used in many professions. A 2014 Village Voice analysis found 60,000 gravity knife prosecutions in the last decade. Most cases investigated by the newspaper involved instruments used for work, such as a stagehand’s utility knife, and most involved Black and/or Hispanic New Yorkers. This tracks with BDS’ experience. Our criminal defense attorneys report that nearly every client arrested on this charge is carrying a knife for work. Often, they are maintenance workers, stock room attendants, or other types of laborers. Unfortunately, many cannot obtain verification of their employment because their work is unsteady or informal. The vast majority of BDS clients charged with the relevant offense are Black and/or Hispanic. Case dispositions vary from client to client, but all are deeply impacted. They suffer the trauma of arrest and contact with the system, including overnight detention in a filthy holding cell and the humiliation of being churned through arraignments and, very often, allocution to a plea deal involving an admission of guilt – of criminality, essentially. They can also lose their jobs and their children, and even face deportation because of these arrests. The criminalization of simple possession of work tools further poisons the relationship between law enforcement and the community and expands the dragnet of our criminal justice system, all without any public safety interest.

CLIENT STORIES

The following stories provided by BDS attorneys feature individuals who would have been spared arrest under this legislation:

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

Mr. W, a green card holder, was working for a large moving and storage company in Brooklyn when he was stopped and frisked. He had not consented to the search, but the officer said he matched the description of a robbery suspect. She found a box cutter in his pocket and arrested him for CPW4. He was wearing a mover’s uniform, including his company sweatshirt, and was able to provide contact information for his employer. The complaining witness who called in the robbery told police officers that Mr. W was not the one who did it. However, his gravity knife case was open for seven months because the prosecutor insisted on a plea deal that included a weapons charge that would trigger deportation. Fortunately, due to our advocacy, the case was ultimately resolved with an immigration-safe plea deal, but he had already lost his job after missing work for court dates. Altogether, he had an open criminal record indicating an arrest for CPW4 for more than a year, and again, a potentially permanent record accessible through for-profit databases.

T, a 17 year-old adolescent had just gotten a job at a hardware store. He was in his work clothes when he was stopped on the subway because a knife clip was showing in his back pocket. He had used the knife to open boxes at the hardware store, which also sold the knives. He was arrested and incarcerated because he was unable to pay bail. While at Rikers, he was assaulted and missed his Regents Exams before his family was able to pay a bail bondsman to bail him out. With T at liberty and able to fight his case, prosecutors offered him an ACD and he accepted.

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

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

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

Mr. J, a 25 year-old construction worker, was stopped and arrested when the police officer found an ordinary folding knife in his pocket. He was detained overnight and held at Rikers Island for two days before his mother could pay his bail. After missing additional days of work for multiple court dates as he fought to prove his innocence, he lost his construction job. His case is ongoing, and the enactment of this law would help Mr. J and thousands of other New Yorkers today.

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

CONCLUSION

S6483 (Savino) / A9042 (Quart) would end a grave injustice and make New York State a better place to live and work. On behalf of our clients, I request that you sign it into law immediately.

If you have any questions, please do not hesitate to contact Jared Chausow at jchausow@bds.org or (718) 254-0700 ext. 382.

Thank you for your consideration of our comments.

Sincerely,

Lisa Schreibersdorf
Executive Director
Brooklyn Defender Services

MEMORANDUM OF SUPPORT FOR S.3675/A.4821 TO END THE CRIMINALIZATION OF SO-CALLED “GRAVITY KNIVES”

April 23, 2015

Brooklyn Defender Services (BDS) strongly supports of A4821 (Quart) / S3675 (Savino), which would decriminalize possession of so-called gravity knives unless there is criminal intent. BDS is a public defense office that provides innovative, multi-disciplinary, and client-centered criminal defense, family defense, immigration and civil legal services, social work support and advocacy to more than 45,000 indigent Brooklyn residents every year.

The need for this legislation is clear. Tens of thousands of New York City residents have been prosecuted for being in possession of—either on their person, or somewhere in their car or home—an instrument they use peacefully in the workplace, simply because it meets the vague legal definition of a “gravity knife.” BDS represents hundreds of clients every year who are charged with the relevant offense, Criminal Possession of a Weapon on the Fourth Degree (CPW4), including stagehands, carpenters, and movers in uniform who are caught with box cutters. As always, it is critical to remember that those who are arrested for any reason face not only a prospective sentence handed down by a judge, but also many collateral consequences that impact individuals, families and, indeed, entire communities. ‘Criminal Possession of a Weapon in the Fourth Degree’ does not look good on a job application.

EXISTING LAW

According to Penal Law § 265.01 (1), a person is guilty of criminal possession of a weapon in the fourth degree (CPW4) when he or she possesses any of a number of different items, including gravity knives, bludgeons, sand bags or “Kung Fu stars.” Subsequent provisions in this statute classify possession of certain other items, such as daggers, razors, imitation pistols, or stilettos, as illegal if and only if there is intent to use them unlawfully against another, or if the possessor is not a citizen of the United States. A CPW4 conviction cannot be sealed.

PROPOSED AMENDMENT

The legislation in question would shift gravity knives into the list of items that qualify as illegal weapons only if there is criminal intent.

BACKGROUND

When New York criminalized “gravity knives” in the 1950’s, the term was used to describe large switchblade-like knives. However, the definition included in the law encapsulates all knives that can be opened by gravity or a centrifugal force. In modern times, New York City law enforcement officials often use the law to arrest and prosecute individuals in possession of pocket knives, utility knives, box cutters, and other items that are commonly used in many professions. A 2014 Village Voice analysis found 60,000 gravity knife prosecutions in the last decade. Most cases investigated by the newspaper involved instruments used for work, such as a stagehand’s utility knife, and most involved Black and/or Hispanic New Yorkers. This tracks with BDS’ experience. Our criminal defense attorneys report that nearly every client arrested on this charge is carrying a knife for work. Often, they are maintenance workers, stock room attendants, or other types of laborers. Unfortunately, many cannot obtain verification of their employment because their work is unsteady or informal. Approximately 80% of BDS clients charged with the relevant offense are Black and/or Hispanic. Case dispositions vary from client to client, but all are deeply impacted. They suffer the trauma of arrest and contact with the system, as well as collateral consequences relating to employment, education, family and more. The criminalization of simple possession of so-called gravity knives further poisons the relationship between law enforcement and the community and expands the dragnet of our criminal justice system, all without any evidence or indication that it improves public safety.

CLIENT STORIES

The following stories provided by BDS attorneys feature individuals who would have been spared arrest under this legislation:

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

Mr. W was working for a large moving and storage company in Brooklyn when he was stopped and frisked. He had not consented to the search, but the officer said he matched the description of a robbery suspect. She found a box cutter in his pocket and arrested him for CPW4. He was wearing a mover’s uniform, including his company jacket, and was able to provide contact information for his employer. The complaining witness who called in the robbery told police officers that Mr. W was not the one who did it. However, his gravity knife case was open for seven months while his attorney pushed for an ACD. As you may know, the duration of an ACD is typically six months. Altogether, he had an open criminal record indicating an arrest for CPW4 for more than a year, and again, a potentially permanent record accessible through for-profit databases.

OVER-CRIMINALIZATION AS AN INEFFECTIVE, WASTEFUL PARADIGM

It is important to understand this issue in a broader context of over-criminalization. Mass incarceration is increasingly recognized as a disaster. A growing number of policymakers and other stakeholders in the justice system now favor Alternatives to Incarceration programs, and rightly so. But we must not overlook the reasons people are getting swept up in the system in the first place, including over-criminalization. To be sure, our State government deserves credit for recent efforts to make the criminal justice system more fair and effective. The Legislature successfully rolled back some of the harsh sentencing laws for drug-related offenses enacted in past decades, and Governor Cuomo has closed 13 underutilized prisons and pushed a number of criminal justice and prison reform initiatives. Thanks in part to these efforts, the prison population is down more than 28 percent since its peak in 1999. That said, this figure obscures the reality that incarceration rates throughout the United States continue to be nearly unparalleled worldwide. Moreover, New York State continues to enact new laws increasing sentencing, post-release restrictions and other punishments without any evidence or indication of improved public safety outcomes, and criminalizing things that do not improve with law enforcement intervention.

Using police officers, incarceration, and criminal records to attack endemic social problems is generally among the most expensive and least effective approaches. Even low-level offenses, no matter how absurd, can accumulate and result in sentences approaching those of more serious offenses. The cost of custody for every person in New York City jails is $167,731 per year, according to the Independent Budget Office. This figure excludes the costs of lost productivity, adverse health impacts, shelter stays related to adverse housing impacts, foster care, and, notably, the increased likelihood of reincarceration. Passing A4821 (Quart) / S3675 (Savino) to fix an obviously problematic law is urgent and important, but ultimately, the primary driver of reform must be ending all over-criminalization throughout New York State and reinvesting the savings produced by declining prison and jail populations into the communities from which our clients come.

Thank you for your consideration of our comments.

OPEN LETTER TO SENATE DEMOCRATS ON ‘RAISE THE AGE’

Dear Senator Montgomery:

Brooklyn Defender Services (“BDS”) recognizes the many areas in which New York State must re-consider its approach to prosecuting 16- and 17-year-olds. We support the Senate Democrats for your leadership in pushing for thoughtful and deliberate reform and your concerted efforts to make New York a leader in the application of real criminal justice for adolescents. We applaud the Governor, the Assembly and the advocacy community for identifying many of the key areas in the criminal and juvenile justice systems where change would be welcome. It is important to understand that defining a problem and identifying solutions that appear to have worked in the aggregate in other jurisdictions are the mere beginnings of the sort of comprehensive change that true Raise the Age reform entails.

There is extreme urgency in addressing the devastating effects of continuing to house 16- and 17-year-olds in adult jails and prisons. Rape, extensive stays in solitary confinement, lack of educational and other opportunities for young people, along with documented brutality are destroying the rehabilitative effect of incarceratory sentences for the age group most receptive to rehabilitation: teenagers. We must immediately focus our energies on this very aspect of the Raise the Age proposals and move the rest of the broad, sweeping, and entirely unvetted legislative package from the budget process. The proposed reforms, which span 300 pages and over 100 statutes, are complicated and potentially counterproductive. This process has been criticized by many, including the NYS District Attorneys Association and the NYS Association of Criminal Defense Lawyers, two organizations whose members work in the courts every day and know how these changes will impact the operations and outcomes for court-involved youth.

BDS provides innovative, client-centered criminal defense, family defense, immigration, civil legal services, social work support and advocacy to 45,000 low income residents in Kings County each year. Our annual adolescent client base consists of 2,000 16- and 17-year-olds, and another 8,000 clients up to age 21. Our Brooklyn Adolescent Representation Team (BART) provides youth-focused criminal defense representation as well as specialized social workers and youth advocates, immigration attorneys, education attorneys, and youth-specific administrative and investigative staff. As is true for many other defender offices, we provide age-appropriate resources for 16- and 17-year-olds in-house. We have developed excellent programs in conjunction with Brooklyn courts and the Kings County District Attorney’s Office, and we have supported innovative programming in the community to prevent young people from getting arrested in the first instance. These programs can continue to assist thousands of young people while New York State carefully considers the best way to adapt its legal system to do an even better job for these youth and the communities in which they live.

This breath of experience and expertise guides us to make the following recommendations:

  1. 1. Pass a bill that would move all juveniles out of adult jails and prisons as soon as possible and fund the creation of youth facilities and other appropriate programming – a critical first step in bringing about real, lasting, comprehensive juvenile justice reform. As has been well-documented, 16- and 17-year-olds who are incarcerated in adult facilities are harmed in greater numbers, commit suicide in greater numbers, and are more likely to recidivate than youth in juvenile facilities. Immediate movement from these facilities is essential. Consideration of alternatives to placement must be part of this movement.

    All juvenile facilities to which the young people are moved must contain these reforms:

    • Fully funded educational and vocational services for all youth
    • A lower correction officer ratio and a higher social worker ratio
    • Mandates to adopt the Missouri model for disciplining young people
    • Prohibition of solitary confinement for all adolescents
    • Specialized treatment for emerging mental health issues
  2. 2. Prepare a thorough racial impact analysis on every other provision of this criminal justice legislation to prevent disparate treatment for young people of color.
    • Making 16- and 17-year-olds subject to arrest and prosecution for violations under the Family Court Act may exacerbate existing racial disparities in the criminal justice system. For example, disorderly conduct, not currently prosecutable in Family Court, would become so for 16- and 17-year-olds under both the Governor’s and Assembly one-house proposals. Since these arrests mostly begin with street encounters initiated by police, our experience shows that young teens of color will be most affected by the choice to include these provisions. Brain science research also shows that the behaviors that may appear to be disorderly in an adult are actually typical for adolescents and form the basis to raising the age reforms in the first place. The potential ramifications of a Family Court case arising from an arrest for disorderly conduct are potentially much harsher than they currently are in adult court. Young people and their families under the jurisdiction of the Family Court are subject to far more government intrusion than they are for identical cases in adult courts. As we also know from our experience in Family Court, seemingly low level offenses comprise the basis for a very large percentage of placement in juvenile facilities because of a number of complex factors.
    • There is also potential for racial disparity in the choice to increase the number and types of crimes that originate and can be prosecuted in adult court. Unarmed Robbery in the Second Degree is prosecutable in criminal court in the governor’s bill. It is also one of the crimes most frequently and disparately charged against Black adolescents in New York City. This same event may look like a teen bullying event in an affluent community and a violent robbery in an underserved neighborhood. Regardless of which way it is perceived, the adolescents who are accused of unarmed robbery are still subject to limitations in impulse control and resisting peer pressure due to their level of brain development.
  3. 3. Put statutory safeguards in place recognizing that not all youth currently in adult facilities need to be incarcerated and may be eligible for alternatives to placement and detention. The budget should fund additional resources to avoid unnecessary detention. These resources should include:
    • Drug programs targeted to 16- and 17-year-olds
    • Residential programs not limited to drug abuse treatment that could provide services for youth who are mentally ill, facing arson or other charges that make them ineligible for other treatment programs
    • PINS respite centers and encouraging parents to file PINS petition rather than filing criminal charges
    • Alternatives to traditional sentences for young people, such as the art-based Young New Yorkers program (www.youngnewyorkers.org), a cost-effective three-hour program focused on decision-making, after which the young person’s case is dismissed. The re-offense rate for these teens is 50% lower than for a control group
    • Police diversion
  4. 4. Additional reforms that improve outcomes for court-involved young people can and should be proposed, thoughtfully analyzed, and sensibly negotiated for passage at a later time.
  5. Brooklyn Defender Services strongly believes that all of the relevant stakeholders can come together to create truly innovative juvenile justice reform based on science and best practices from other states. Such legislation should seek to limit racial disparities in the criminal justice system, rather than exacerbate existing inequalities. For this reason, and all of the reasons listed in the New York State Association of Criminal Defense Lawyers Raise the Age Position Paper, we urge legislators to delay action on all the substantive issues concerning Raise the Age except the movement of 16- and 17-year-olds from adult prisons and the creation of non-incarceratory placements targeted to the needs of this age group, which should happen immediately.

    Sincerely,

    Lisa Schreibersdorf
    Executive Director

LETTER TO NYS ASSEMBLY SPEAKER CARL HEASTIE ON LEGISLATION EXPANDING UNCONSTITUTIONAL, COUNTERPRODUCTIVE SEX OFFENDER EXCLUSIONS

Dear Speaker Heastie:

As the Executive Director of Brooklyn Defender Services (BDS), I write regarding a package of legislation relating to sex offenders that recently passed the New York State Senate, and is currently under consideration in the New York State Assembly. BDS provides innovative, multi-disciplinary, and client-centered criminal defense, family defense, immigration, civil legal services, social work support and advocacy to more than 40,000 indigent Brooklyn residents annually. In addition to providing our clients with a zealous defense and wraparound services, we endeavor to share our on-the-ground experience with the implementation of the laws of our City and State to inform the work of policymakers and enhance public policy.

On February 26, the New York State Senate passed nine bills that generally augment existing restrictions on the movement and residence of individuals convicted of sex offenses, expedite risk level determinations, and impose a reporting mandate on school districts. While I have concerns about each piece of legislation, I will focus my comments on those which relate to broadening restrictions on subject offenders’ movement and residence.

One key provision that would be expanded by S.1520/A.5165, S.2950/A.752, S.3926/A.1658 and S.2981/A.889 prohibits subject offenders from “knowingly enter[ing]” any area within 1000 feet of a school or child-care facility. Contrary to the way it is often described, this provision is far broader than a residency restriction—it is wholesale exclusion from any densely populated area, like New York City. The prevalence of these exclusion zones effectively precludes many subject offenders from legally entering their home neighborhoods, and even boroughs.

Such wholesale exclusions substantially burden New Yorkers’ constitutional rights. First, the exclusion statute substantially interferes with subject offenders’ First Amendment right to maintain intimate associations with their Brooklyn-rooted families without in any way furthering the State’s interest in preventing prospective sex abuse against children.

Second, the exclusion statute violates the substantive due process rights of all subject offenders to travel to and around their homes for any innocent purpose—to be with their children, to work or obtain medical or rehabilitative services, or to otherwise visit the State’s most populous regions—with no determination that such banishment even marginally serves a compelling government interest in child safety.

Finally, the exclusion statute constitutes an ex post facto punishment, effectively increasing the penalty imposed for an individual’s crime by exiling her from her home and community well after imposition of a sentence that included no such banishment. The Constitution’s ex post facto clause prohibits an increase in punishment for a crime after it was committed—which is exactly what any expansion of the existing exclusion would do. Indeed, a New York Supreme Court judge in Brooklyn recently ruled that the statute was retroactively punitive as written, without further enhancement, and was thus being applied in violation of the Constitution.

The substantial burden on constitutional rights imposed by these enhanced restrictions would only be permissible if they furthered New York’s interest in protecting children, but exclusions and residency restrictions are actually counter to public safety. The stated purpose of the exclusion statute is to prevent high-risk sex offenders from committing sex crimes against children. This is an important goal for all of us. I am a parent and I understand as well as anybody the urge to protect one’s child. That said, the exclusion statute is not an effective, or even rational, means of achieving this result.

Studies highlighted by the New York State Division of Criminal Justice Services (“DCJS”), the State agency responsible for administering the Sex Offender Registry, show that most offenders who molest children molest family members and close acquaintances. The U.S. Department of Justice reports that 93% of sexual assault victims under the age of 17 were assaulted by someone they knew. Thus, opportunities for the most likely offenses against school-aged children are not diminished by keeping offenders away from schools, and the prohibition does not advance that purpose.

Furthermore, statistical research demonstrates that most sexual assaults take place in a home, and not in a park or on a school ground. Only 11% of sexual assaults on victims aged 12 and older occurred on school property or in a yard, park, field or playground; and only 16% of sexual assaults on youth below the age of 12 occurred in a place other than a residence. The Colorado Department of Public Safety found that convicted child molesters in Colorado who committed another sex offense while on probation were randomly scattered throughout the geographical area, and did not seem to live closer to schools or child care centers than those who did not commit another sex offense.

Yet more evidence-based research shows that, among the small group of offenders who do attack strangers, most do so away from their own neighborhoods. A meta-analysis on the journey-to-crime of sex offenders found that on average, most sexual offenders traveled a minimum of one mile from their home to commit their crime. Another study in Minnesota showed that when offenders did make contact with juveniles, they often did so more than a mile away from where the offender lived. Of the few offenders who directly contacted a juvenile near the juvenile’s home, none did so near a school, park, or playground. The study concluded that none of the 224 offenses examined would have been prevented by an exclusion restriction. Thus there is no valid suggestion that New York’s exclusion statute, which prevents offenders from living near schools, will appreciably reduce sex offenses against children. Potential sex offenders travel to areas they do not live to commit such crimes.

In sum, even according to the State of New York’s own criminal justice agency and the studies it proffers to the public, there is not even a suggestion, let alone evidence, that a serious constitutional infringement is justified because an exclusion restriction like the one expanded by these pieces of legislation actually makes children safer or reduces the likelihood of a child sexual assault by a convicted offender—even marginally. To the contrary, by making it more difficult, if not impossible, for offenders to readily comply with rehabilitative post-release conditions—making it harder for them to keep medical appointments, attend treatment programs, check in with a parole officer, and gain and keep employment—all because the appointments, doctors, and jobs are located within 1,000 feet of a forbidden area, the statute likely increases the risk to the public that the designated “high-risk” offenders will re-offend.

In a case recently litigated by BDS attorneys, our client’s primary physician was indeed located in the excluded area. His attorneys and the courts were within the excluded area as well. So was the parole office to which our client had been required to report, forcing him to choose between “knowingly enter[ing]” a forbidden area, thus subjecting himself to re-incarceration, or not checking in to his assigned parole office, which also subjected him to re-incarceration. The same was true of the ¾ home to which our client was required to report after being forcibly removed from his family home—it, too, sat squarely in an excluded area, as did his sex offender treatment program. Absurdly, he was subject to re-incarceration for dutifully reporting to the offices and facilities to which State officials have ordered him to report, until his exclusion was overturned by a judge on the aforementioned constitutional grounds. Judges in other jurisdictions are also recognizing that these sweeping exclusions are unconstitutional and unworkable.

Efforts to rehabilitate offenders and minimize the rate of re-offending, which should be the goal of any legislation, are much more successful when offenders are employed, have family and community connections, and have a stable residence—all of which are undermined by exclusion restrictions. Exclusion statutes are known to drive offenders into homelessness, which makes it harder to supervise them. Within six months of the implementation of Iowa’s exclusion restriction, for example, thousands of sex offenders became homeless or transient and thus more difficult for authorities to track and monitor. According to a report by the New York State Division of Criminal Justice Services, “The number of registered sex offenders in Iowa who could not be located more than doubled, damaging the reliability and validity of the sex offender registry.” The report quotes an Iowa Sheriff: “We are less safe as a community now than we were before the residency restrictions.” And in January 2008, the California Sex Offender Management Board reported an increase of 715% in parolees subject to exclusion restrictions who registered as “transient” since the law took effect. General criminal recidivism research also shows that forcing sex offenders into homelessness doesn’t mitigate the problem either: risk of re-incarceration increased 17% with post-release shelter stays.

There is no known correlation between exclusion statutes and reducing sex offenses against children. Instead, such restrictions cause offenders to become homeless or to change residences without notifying authorities, and do not serve public safety. I respectfully request that you consider the integrity of the Constitution and the safety and well-being of all New Yorkers, and oppose these misguided bills.