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News

BDS AND THE ASFA COALITION SIGN A MEMO IN SUPPORT OF KINGAP

BDS, as a member of the ASFA Coalition, a coalition of child welfare agency, parent, and child advocate groups, signed a memorandum in support of S04833,A07554, a bill which makes two important modifications to the existing Kinship Guardianship Assistance Program (KinGAP ) statute that would allow greater number of children to be discharged from foster care to permanent homes under the program

Read the full memo here.

BDS MEMO OF SUPPORT OF A4880, WHICH WOULD LIMIT RESTRICTIONS ON CHARITABLE BAIL ORGANIZATIONS (CBOS)

Memorandum of Support

A4880 (Blake)

An Act to amend the insurance law, in relation to charitable bail organizations

February 9, 2017

Brooklyn Defender Services (BDS) supports A4880 (Blake) which would limit restrictions on Charitable Bail Organizations (CBOs) therefore enabling these non-profit groups to assist more people throughout New York State. BDS is a public defense organization that provides multi-disciplinary and client-centered criminal defense, family defense, immigration and civil legal services, reentry support, social work support and community-based education to tens of thousands indigent Brooklyn residents every year.

Brooklyn Defender Services helped incubate the Brooklyn Community Bail Fund[i], which as an independent 501(C)(3) organization has bailed out more than 1,100 defendants who otherwise would have been locked up in City jails prior to the resolution of their case. Many of these defendants were BDS clients, and we have seen firsthand the positive impact CBOs can have on the administration of justice in our borough and throughout New York City.

EXISTING LAW

Under existing New York State law, CBOs are able to deposit money as bail in the amount of two thousand dollars or less for a defendant charged with one or more misdemeanors, provided, however, that such organization shall not execute as surety any bond for any defendant. The current law also limits funds to operate in only one county, with a carve-out for CBOs located in New York City to operate within all five boroughs.[ii]

In 2012, when Charitable Bail Organizations were added to the Insurance Law to clarify rules about their activities, the inability of people whose bail was set higher than $2,000 to meet this financial condition was well-documented. Nevertheless this limit was put in place, perhaps because CBOs were a new type of entity and their activities had never been regulated before.

PROPOSED AMENDMENTS

Due to the success of the CBOs currently in operation – both in their ability to post bail for indigent defendants thus reducing the number of people facing the traumas of incarceration in the absence of any finding of guilt for a specific crime, and in ensuring the return to court rates – it serves the State well to consider lifting some of the restrictions initially placed on these organizations in 2012.[iii]

In the second quarter of 2016, according to the Mayor’s Office of Criminal Justice, 9,415 people landed on Rikers Island despite bail amounts under $2,500.[iv] (The upper limit for CBOs is currently $2,000, but NYC data does not provide for statistics at that threshold). During that same time period, there were an additional 3,873 people who were incarcerated pre-trial in NYC because they were unable to post bail between $2,500 and $5,000. Extrapolated out to a full year, this means that the new bill could impact at least 15,492 people, in just New York City alone, a significant number. Our understanding of bail-setting practices outside New York City is that bails are comparatively higher. Thus we anticipate the higher threshold having a significant impact outside New York City as well.

Importantly, the proposed legislation would permit CBOs to post bail on cases with a top charge of a violation or a felony. At the moment when bail is set, the judge is not remanding a person, but setting some conditions that if met, would give the judge comfort that the defendant would return to court for their future court appearances. The purpose of bail is not to hold someone in jail until the conclusion of their case, though this occurs too often all across the state. The purpose of bail is release. Therefore CBOs should not arbitrarily be limited to posting bail for misdemeanors, but should be made available to those people who cannot afford the financial conditions set by a judge, no matter the charge.  .

Pre-trial incarceration is a grave injustice. Being in jail for just one day can lead to a lifetime of harmful consequences from which some of our clients never recover. There are dramatic racial disparities in our pre-trial systems. Requiring people to use financial resources to buy their way out of jail is discriminatory against those without financial means. Lastly, there is no evidence to suggest that requiring financial conditions of release actually increases the rate at which people return to court. Because the amendments proposed in A4880 will provide greater opportunities for people to remain at liberty while their case is adjudicated, we support this bill.

ADDITIONAL RECOMMENDATIONS

The bail system in New York State is broken.[v] Most problematically prosecutors ask for, and judges order, people to post financial conditions of release that far exceed their ability to pay, even though an individualized assessment of a defendant’s financial capacity to pay is required in the bail statute.. Our bail statute remains one of the most progressive in the country, but the application of the statute is a problem. While we support this bill because it will help people in need, it is not a panacea for all pre-trial problems. Our hope is this bill is one step in a longer march toward transformational reforms to the way justice is administered during the pre-trial period of a criminal case.

New York is one of just eight states that do not require judges to have legal training.[vi] This means that the judicial officers interpreting the bail statute, and sending people to jail on financial conditions they cannot afford, may not fully understand the law. It is no surprise that in New York City, where judges are legally trained and experienced, and public defenders are well-resourced, more people are released on their own recognizance, when compared to upstate counties. New York City’s jail population declined by half since its peak in 1999 yet other county jail populations, such as Montgomery County’s, has swelled. While New York City’s pre-trial system is comparatively better, still 60,000 people cycle through the City’s jail system each year, the vast majority of whom are their waiting for their case to be adjudicated.[vii] As CBOs in New York City have shown, many of these people will come back to court if released.

Looking to the future, there is no reason to restrict CBOs to posting only cash bail instead of surety bonds. Here in New York City and across the State, our clients experience wide-ranging fraud and exploitation at the hands of commercial bail bondsmen, who nevertheless continue to benefit from the current practices by the courts in setting  Insurance Bond as one of two options for people to meet their financial conditions of release, cash being the other. Although under the statute judges have nine forms of bail they can permit, and no requirement to set any form, which would allow defendant’s families to make decisions about what form they are capable of posting, , in Brooklyn and throughout NYS, Insurance Company Bond and cash are overwhelmingly the most common. If the CBO’s are to be able to help more people avoid pre-trial incarceration, there should be a broadening of the scope of their permitted activities.

Thank you very much for your consideration of our comments. If you have any questions, please reach out to Nick Malinowski, nmalinowski@bds.org or 718-254-0700 ext. 269.

[i] https://brooklynbailfund.org/

[ii] http://law.justia.com/codes/new-york/2015/isc/article-68/6805

[iii] https://brooklynbailfund.org/our-results/

[iv] http://www1.nyc.gov/site/criminaljustice/data-analytics/reports.page

[v] https://www.nytimes.com/2015/08/16/magazine/the-bail-trap.html?_r=0

[vi] https://www.theatlantic.com/politics/archive/2017/02/when-your-judge-isnt-a-lawyer/515568/

[vii] https://www1.nyc.gov/assets/doc/downloads/pdf/FY17_1st_QUARTER_2016_demog.pdf

BDS RELEASES STATEMENT IN SUPPORT OF KALIEF’S LAW (S5988A/A8296A)

MEMORANDUM OF SUPPORT

S5988A (Squadron)/A8296A (Aubry)

“Kalief’s Law”

March 1, 2016

Brooklyn Defender Services (“BDS”) strongly supports S. 5988A (Squadron)/A. 8296A (Aubry) which would amend Section 30.30 of the Criminal Procedure Law (C.P.L. §30.30) to require prosecutors to prove readiness for trial by certifying compliance with disclosure requirements.  BDS is a comprehensive indigent legal service organization that provides innovative, multi-disciplinary, and client-centered criminal defense, family defense, immigration and civil legal services, and social work support to more than 45,000 indigent Brooklyn residents every year.

The U.S. Constitution provides criminal defendants with the right to a speedy trial. Yet the current iteration of New York’s “Speedy Trial” Law (C.P.L. §30.30) subverts justice and the Constitution by allowing the People and the courts to delay cases for months or years at a time to the detriment of defendants and the community.

Kalief’s Law is named in honor of Kalief Browder, a 16-year-old from the Bronx who spent three years on Riker’s Island awaiting trial for allegedly stealing a backpack. At Riker’s he suffered abuse at the hands of corrections officers and other inmates and spent two years in solitary confinement. The prosecution eventually dropped the charges against him, but his experiences continued to haunt him and, earlier this year, he committed suicide.

Kalief’s Law would amend C.P.L. §30.30 to limit delays, resulting in a more swift resolution for defendants and witnesses and cost-savings for the courts and community. Too many people have been harmed by a system characterized by delay, inefficiency and abuse. Kalief’s Law is an important step towards advancing the cause of justice in New York.

EXISTING LAW

Though Article 30 of the Criminal Procedure Law identifies Section 30.30 as a speedy trial statute, it is, by design and practice, a prosecution ready rule. This means that a trial does not have to actually start within the time required to avoid dismissal of the case. Rather, the prosecution must merely claim to be “ready” for trial within that period.

Under C.P.L. § 30.30, a criminal defendant may file a motion to dismiss the charge(s) if the people are not ready for trial within 180 days of the commencement of the action for felonies, 90 days for high-level misdemeanors (punishable with jail sentences of over 3 month), 60 days for low-level misdemeanors (punishable with jail sentences less than 3 months), or 30 days for violations.

Despite these time limits, cases often go on for months or even years. One reason is a statutory exception to the readiness rule for “exceptional circumstances” such as the sudden unavailability of evidence material to the people’s case. The people also are able to drag cases on by filing an “off-calendar” statement of readiness. The prosecutor will obtain an adjournment on the date of trial because they are “not ready” and then a few days later will file an “off-calendar” statement of readiness on a day when no one is in court. This stops the speedy-trial clock for the rest of the adjournment period which may last for multiple months.

PROPOSED AMENDMENT

This bill would amend § 30.30 by:

  • Requiring a representative of the People to prove readiness for trial by affirming that the People’s evidence is imminently available.
  • Requiring that a valid statement of trial readiness be accompanied or preceded by a certification of compliance with the disclosure requirements set forth in section 240.20 of the Criminal Procedure Law.
  • Requiring that exclusions to the computation of time, when a statement of unreadiness has followed a statement of readiness made by the People, be accompanied by supporting facts and approved by the court.

JUSTIFICATION

Kalief Browder’s traumatic experience on Riker’s Island is not atypical. Earlier this year New York City announced that over 400 people had been locked up on Riker’s Island for more than two years without being convicted of a crime. Troublingly, the majority of inmates are not detained in Riker’s because they pose a threat to public safety. In New York City, roughly 45,000 people are jailed each year simply because they can’t pay their court-assigned bail. At any given time, BDS has around 1,000 clients awaiting trial or resolution of their cases on Riker’s, many of them for failure to meet bail amounts of less than $5,000. While at Riker’s, our clients are subject to all manner of undue and excessive punishment, including lack of access to health care and mental health services, physical and sexual violence, job loss, eviction, interrupted education, and the torture of solitary confinement. A recent lawsuit brought by the Legal Aid Society against the City of New York about deplorable conditions on the Island’s facilities, which was joined by the U.S. Department of Justice and finally settled in June of this year, shed light on the routine and institutionalized culture of rape, sexual assault and beatings of inmates at the hands of corrections officers and other inmates. It is an open secret that prosecutors use pre-trial detention to extract plea agreements involving admissions of guilt from defendants. Reforming C.P.L. § 30.30 is necessary to promote justice by reducing the amount of time that defendants spend on the Island.

BDS clients fighting their cases from the outside are also harmed by delay. These are clients who were released on their own recognizance or were able to post bail. The average length of time from arraignment until trial for BDS felony clients is 464 days, up from the City average of 380 days in 2008. Our clients spend months or years with charges pending over them, inhibiting their ability to obtain a job or housing. Some clients lose their jobs because of either the pending charges or because they missed work due to court dates or pre-trial detention. Those with more flexible jobs or employers have to miss work, often well over a dozen times during the duration of their case, resulting in lost wages.

Complaining witnesses and other parties such as defendants’ family members suffer when cases linger on without resolution. They too are required to return to court multiple times, taking time off work and away from their families. Parenting defendants may lose custody of their children, some of whom must enter the foster care system while their parent is detained pre-trial. Long delays by the prosecution and the courts serve no legitimate purpose and ultimately diminish the integrity of our court system.

Justice delayed is justice denied. Kalief’s Law provides an important and cost-effective way to limit how long defendants are detained on Riker’s Island, provides defendants and victims with faster resolution, and promote justice for all. For these reasons, Brooklyn Defender Services urges you to co-sponsor and support S. 5988A/A. 8296A.

Questions? Contact Andrea Nieves, anieves@bds.org, (718) 254-0700 ext. 387

THE STATE HAS SURRENDERED THE DUE PROCESS RIGHTS OF VULNERABLE FOSTER CARE CHILDREN AND PUT FAMILY RE-UNIFICATION AT RISK IN ITS SETTLEMENT OF THE ACS LAWSUIT

New York (October 21, 2015)

As the seven legal services organizations that represent the overwhelming majority of children and parents in New York City’s child welfare system, we are disappointed to learn that New York State has announced a proposed settlement of the lawsuit of the claims against the State in Elisa W.

Our organizations are at the forefront every day of navigating the City’s foster care system. We are gravely concerned that the lawsuit itself relies upon information and data that does not reflect the realities of child welfare practice in New York. The lawsuit is misguided in its myopic measures of success. Our organizations have been actively engaged in collaboration with ACS Commissioner Carrion and her staff on ten specific areas of reform. We are addressing the issues that we believe accurately measure success in the City’s child welfare system.

We are convinced that the proposed settlement, which adds redundant layers of oversight including the use of a Court-ordered monitor, will delay and distract from the focus necessary to achieve meaningful reform.

We are concerned that the State has surrendered the due rights of vulnerable foster care children by prohibiting foster children from suing the State to secure systemic reform regarding their treatment in foster care. It would preclude all attorneys for children from utilizing the tool of impact litigation against the State to protect our clients’ rights.

The seven organizations are The Legal Aid Society, Lawyers for Children, Children’s Law Center, Bronx Defenders, Center for Family Representation, Neighborhood Defender Services, and Brooklyn Defender Services.

“As the attorneys for almost all the children in New York City’s foster care system, we have serious concerns about the settlement between the State and the Plaintiffs in Elisa W.,” said Tamara Steckler, the Attorney-in-Charge of the Juvenile Rights Practice at The Legal Aid Society. “The lawsuit’s measures of a successful system are not the measures we believe best judge success for our clients and their families. The additional oversight adds an unnecessary layer of bureaucracy, compounding the issues that exist and delaying real reform. We will take the legal action necessary to protect our clients as we continue to work with ACS and the 6 other legal service organizations in New York City that serve children and families towards meaningful reform that actually meets the needs of tens of thousands of children we represent. ”

“With 25 years of experience representing residents of Upper Manhattan, Neighborhood Defender Service of Harlem strenuously opposes the settlement reached with New York State defendants as part of the Elisa W. litigation,” stated Stacy E. Charland, Managing Attorney of the Family Defense Team of the Neighborhood Defender Service of Harlem. “The issues that bring children and families into New York City’s child welfare system are complex, often complicated by poverty, addiction, and struggles with mental health. Meaningful services to address these issues are sparse and often difficult to access. The Elisa W. litigation seeks to shift the focus of child welfare in New York City from reunification of families to decreasing stays in foster care through speeding up adoptions. As the primary provider of parent representation to families in Upper Manhattan, this position is simply untenable. The imposition of a Monitor and a Research Expert do little more than divert precious financial resources and attention away from reunification of families. It is time that New York State focuses on a strategy that keeps children at home with their families and in their communities, rather than structuring settlements that perpetuate the permanent dissolution of poor families of color.”

“Real reform to the child welfare system requires universal childcare, affordable housing, and meaningful social services. Adding additional layers of bureaucracy to our child welfare system in order to meet artificial time lines and quotas will not help families stay together or protect children,” said Emma S. Ketteringham and Scott A. Constantine, Managing Directors, The Bronx Defenders Family Defense Practice.

Karen Freedman, Executive Director of Lawyers for Children, said “Lawyers for Children is deeply troubled by the terms of the proposed State settlement in Elisa W. The settlement provides few, if any, concrete benefits to children in foster care, while requiring the children to abandon their right, indefinitely, to sue the State for failing to meet its legal obligations to care for them.”

“Brooklyn Defender Services is dismayed that the plaintiffs and the State are settling this lawsuit without sufficient input from the representatives of the parents and children who will be most affected by the outcome. Without a significant increase in resources to the Family Court, there is little chance of meaningful reform,” said Lauren Shapiro, Attorney-in-Charge of the Family Defense Practice of Brooklyn Defender Services.

“Children involved in the child welfare system are supposed to be with, or be reunited with, their biological families or, when reunification is impossible, be adopted. The checks and balances that we are all seeking must ensure safety, permanence and well-being. The proposed settlement does not take sufficient steps to achieve these goals,” Karen P. Simmons, Executive Director of The Children’s Law Center.

Susan Jacobs, Center for Family Representation’s Founding Executive Director, comments that, “We are deeply disappointed that the State has chosen to settle the lawsuit in Elisa W. with conditions that in our view disregard best practices for child welfare reform and the recent history of child welfare reform in New York City. In the first instance, it is particularly concerning that the plaintiffs and their counsel did not consult many advocacy groups like ours who have represented more than 6000 parents in family court since 2007 and worked on reform at the city, state and national level. Ignoring the voice and perspective of parents and youth, and their advocates, can only result in a settlement that is ill-fitting for the city and state and not responsive to the very people it will impact.” Just as significant, the lawsuit is misguided in its focus on speed to trial and adoption as the most important measures of success. While certainly ACS can improve, we among others have been focusing on reform efforts that also improve a family’s ability to reunify, and that strengthen preventive services focused on mental health, domestic violence and success. Additionally, the settlement, if approved, undercuts the meaningful reform efforts underway now in partnership with ACS, for instance, by adding an unnecessary layer of monitoring and oversight in a system which needs more communication not more bureaucracy.