Tag: New York

Good news, bad news: New York’s drug law reform and collateral consequences

The Vera Institute has issued a first-rate assessment of the effect of the Rockefeller drug law reforms in New York City.  See End of an Era?  The Impact of Drug Law Reform in New York City.   The report found that as a result of the reforms far more people were diverted out of the justice system and into treatment, thus avoiding conviction and the attendant collateral consequences.  On the other hand, for those not diverted, the report found that the repeal of mandatory minimums led prosecutors to look for other ways to leverage plea bargains, leading to more felony convictions and more severe collateral consequences than under the old laws.  Sentencing reformers in other jurisdictions should take note. Vera researchers found that drug law reform led to a 35 percent increase in the rate of diversion among eligible defendants, though its application varied significantly among the city’s five boroughs.  The report also found that while judges now have authority to order diversion over the objections of the prosecutor, they rarely do so.  Diversion delayed or prevented further involvement in the justice system, leading to a significant reduction in recidivism rates: 36 percent of a sample of defendants who received treatment following the reforms were re-arrested within two years, compared to 54 percent of defendants who were sentenced to prison, jail, probation, or time served before the laws changed.   Racial disparities were cut in half as well, though disparity remains. Researchers found that the repeal of mandatory minimums had a darker side as well, in encouraging more severe treatment of those who were not diverted, in both charging and plea bargaining: Defendants arrested in 2010 for a B felony drug offense—the most common charge by far—were much more likely to be indicted and convicted of that crime when compared to cases originating from 2008 arrests. In 2008, prosecutors were more likely to offer defendants arrested for the same crime a lesser charge, possibly in an effort to persuade them to plead guilty and avoid a mandatory minimum sentence. In the samples of matched cases analyzed as part of this study, the number of people convicted of a B felony drug crime after the reforms were in place increased by a factor of 2.6, a change that is statistically significant. The report concludes that “[t]his trend raises concerns because of the effect that having such a serious criminal record may have, for example, on housing or employment opportunities or for future sentencing decisions, if the person is re-arrested.” New York’s experience implementing an admirable sentencing reform agenda offers a cautionary note for reformers everywhere: it is not enough to repeal mandatory minimums and divert more people out of the criminal justice system.  It is essential also to address the impact of collateral consequences on those who remain in the system. Read more

Michigan takes baby steps on criminal justice reform

Michigan spends one in five tax dollars on corrections so the state continues to explore strategies to safely reduce these costs.  In its most recent session, the legislature considered bold criminal justice reforms, but strenuous last minute objections from the Attorney General succeeded in halting much of the reform agenda. In the end, only a few reforms were implemented and most of them were passed in watered-down form. The new laws include (1) the establishment of a Criminal Justice Policy Commission; (2) narrow expansion of set-aside eligibility to victims of human trafficking; and (3) authorization for Certificates of Employability for prisoners who complete certain in-prison training programs.  A more ambitious (though still narrow) expansion of the set-aside law is currently on the Governor’s desk for signature.  These “baby steps” leave lots of room for improvement, but constitute a blueprint for future reform efforts. Sentencing reforms – why reform was suggested and what was actually achieved In 2013, led by consultants from the Council of State Governments, Michigan undertook an in-depth study of its sentencing system for its impact on public safety, recidivism, and state and local spending. The study included analysis of 7.5 million data records, and over 300 in-person meetings and calls with stakeholders, such as law enforcement officials and legislators. The study concluded that (1) people throughout Michigan with similar criminal histories and convictions get significantly different sentences; (2) the time a person will actually serve in prison or under supervision cannot be predicted; (3) resources are not prioritized to reduce recidivism; (4) high rates of recidivism generate unnecessary costs and public safety risks, and current funding does not adequately fund reentry programs; and (5) there is no effective mechanism to track sentencing outcomes. Reformers responded.  Leading the charge was Representative Joseph Haveman, a Republican representing one of the most conservative districts in the state. His proposals would have reduced the discretion of judges and the parole board, created consistency in sentencing and supervision, allowed certain offenders to leave prison on parole earlier, decreased probation time, and established swift and predictable sanctions for probation violations. Opposition came from those who wanted to keep the current level of judicial and parole board discretion, and from sheriffs who worried about higher costs to local jails. The strongest opposition came from Michigan Attorney General Bill Schuette, who sent letters to lawmakers urging them to reject the bills, claiming that they were being rushed through Michigan’s “lame duck” session.  In the end, the House “gutted” the bills and they died in the Senate. One residual part of Haveman’s package, however, soared through both chambers:  a Criminal Justice Policy Commission was established to review the effectiveness of sentencing guidelines, release and supervision policies, and the use of prisons and jails. Expansion of set-aside authority A set-aside, frequently called “expungement,” makes criminal records unavailable to anyone other than courts, law enforcement agencies, and certain agencies.  Until recently, persons were eligible for set-aside under Michigan law only if they had fewer than two prior “minor offenses,” a term that was very narrowly defined.  See Mich. Comp. Laws 780.621.   Amendments to this provision signed into law by the governor on January 12, 2014, enlarge the category of priors a person may and still remain eligible for set-aside, from “minor offenses” to “misdemeanors.”  (A traffic offense would not constitute a misdemeanor, unless it had been for operating while intoxicated).  In addition, a person convicted of not more than two misdemeanors and no felonies may apply to have either or both of the misdemeanor convictions set aside.  As a result of amendments to 780.621 enacted in the fall of 2014, victims of human trafficking are now permitted to apply to set aside a conviction committed as a result of the trafficking. This new legislation allows more people to apply for a set-aside, but does not go as far as Minnesota’s new law, which extends expungement to a broader range of offenses, requires data-mining companies to honor expungements, addresses victimization and housing evictions, and protects landlords and employers.   [NOTE:  Another law enlarging the basic set-aside authority was signed by the governor in early 2015.  Under this bill, which has been in the works for years, a person who is convicted of not more than one felony offense and not more than two misdemeanors offenses may petition the court to set aside the felony offense.] Certificates of Employability Lastly, a bill authorizing a Certificate of Employability for certain persons currently serving a prison term in Michigan’s Department of Corrections provides some protection against liability for hiring or renting to the holder of a Certificate.  Under PA 360 of 2014, an employer or other person may introduce a Certificate as evidence of due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with someone who has the Certificate, if the employer knew of the Certificate when hiring or otherwise engaging with its holder.  Like other states with similar employer protections–such as Ohio,[2] Tennessee,[3] and North Carolina,[4] and New York[5] — the Michigan law protects anyone who knows about the Certificate. However, in contrast with those states, most Michigan citizens with a criminal record are not eligible for a Certificate.[6]  The Michigan Chamber of Commerce, which opposes a ban-the-box proposal for job applications, supported the Certificate legislation. The Michigan Department of Corrections is authorized to issue Certificates only to incarcerated people no more than 30 days before release, and only if all of the following apply: (a) The prisoner successfully completed a career and technical education course; (b) The prisoner received no major misconducts during the two years preceding his or her release; (c) The prisoner received no more than three minor misconducts during the two years preceding his or her release; and (d) The prisoner received a “silver level” or better on his or her national work-readiness certificate, or a similar score as determined by the Department on an alternative job skills assessment test administered by the Department.  The Certificate is only valid for 4 years after issuance. Because nearly 80% of Michigan felony offenders since 1999 have been sentenced to community-based sanctions, the vast majority of Michiganders with a felony record will not be eligible for a Certificate. Also ineligible are those who are no longer incarcerated, so that the 163,861 people who have moved from the Department of Corrections to parole since 2000 will be unable to qualify, and neither will people with federal convictions or convictions from other jurisdictions. Finally, people currently at MDOC will be eligible only if they have access to education and training programs, which vary by facility throughout the state. Still, to those who are currently incarcerated by the Department of Corrections, receive education, get training, and are awarded a work-readiness certificate, the Employability Certificate may be helpful – if only for 4 years. Heather Garretson is a Scholar in Residence at City University of New York Law School, the premier public interest law school in the country.  She is a former federal prosecutor, defense attorney, and Professor of Law at Western Michigan University Cooley Law School in Grand Rapids, Michigan. [1] House Bill 5025, MCL 780.621,amended [2] Ohio Rev. Code Ann § 2953.25(G). [3] Tenn. Code Ann § 40-29-107(n)(1). [4] N.C. Gen. Stat. § 15A-173.5 [5] N.Y. Exec. Law § 296(15) [6] Iowa and Ohio have certificates that are similarly limited to prisoners, but neither of them include protections against negligent hiring. See Iowa Code § 906.19(2), Ohio Rev. Code Ann. §§ 2961.21.     Read more

Can a taxi license be revoked based on arrest alone?

I went to college, and practiced law, with Dan Ackman, an outstanding New York lawyer who represents taxi drivers in a variety of contexts.  One of his cases, pending in the Southern District of New York, Nnebe v. Daus, challenges the TLC’s alleged practice of automatic license suspension a upon arrest for a felony or specified misdemeanor, and automatic revocation upon conviction, even if the charges had no temporal, physical or logical relationship to driving a cab.  The Second Circuit previously held that automatic revocation was constitutional, but directed a trial on whether the post-deprivation hearing was sufficient.  The case was remanded, tried, and is now pending a decision before Judge Sullivan.  The case has important implications for collateral consequences; mere arrests should not be the basis for any important decision, other than an inquiry into the actual facts, and even a conviction for an unrelated offense should not be the basis for  license revocation. Read more

“Justice Is Swift as Petty Crimes Clog Courts”

In a recent national study of case processing in the nation’s misdemeanor courts, Wall Street Journal reporters Gary Fields and John Emschwiller document how “blindingly swift” justice is for the “millions of Americans charged each year with misdemeanor crimes”: In Florida, misdemeanor courts routinely disposed of cases in three minutes or less, usually with a guilty plea, according to a 2011 National Association of Criminal Defense Lawyers study. In Detroit, court statistics show, a district judge on an average day has over 100 misdemeanor cases on his or her docket–or one every four minutes. In Miami, public defenders often hardly have time to introduce themselves to their misdemeanor clients before the cases are over. . . . In a Houston courtroom one day recently, defendants–sometimes individually, sometimes in groups of up to nine . . . , pleaded guilty, received their sentences and got a “good luck” from the judge in less than 30 seconds. It appears that very little has changed in the forty years since the Supreme Court in Argersinger v. Hamlin bemoaned the assembly line that characterized the processing of misdemeanor offenses at that time.  The Court noted: Wherever the visitor looks at the system, he finds great numbers of defendants being processed by harassed and overworked officials.  Suddenly it becomes clear that, for most defendants in the criminal process, there is scant regard for them as individuals. They are numbers on dockets, faceless ones to be processed and sent on their way.” (emphasis added) The Argersinger Court noted that uncounseled defendants were pleading guilty, often at their initial appearance before a judge, and that there were harmful consequences that flowed from convictions of even so-called minor crimes.  To remedy the national crisis in misdemeanor courts that existed even in the 1970s, the Court held that the Gideon right to counsel in felonies must be extended to all defendants, no matter how seemingly minor the charges, if the accused stood to be sentenced to any period of incarceration. Nowadays, it is increasingly common for defendants to be represented by counsel at their initial appearance, even when charged with minor misdemeanors.  But even with lawyers, the Wall Street Journal study shows that there is (still) “scant regard for them as individuals. They are numbers on dockets, faceless ones to be processed and sent on their way.” In New York City, where I practice, the assembly line of guilty pleas drones on.  Even with the presence of counsel, the practice of quick and dirty guilty pleas persists in what has come to be known derisively, but accurately, as meet ‘em, greet ‘em, and plead ‘em.  While the presence of lawyers is a necessary condition it is certainly not sufficient – attention must be paid to what those lawyers actually do (or fail to do). The swift guilty plea must be condemned for multiple reasons.  For starters, at the time of an arraignment plea, none of the institutional players — prosecutor, defense attorney or judge — know much of anything about the accused or any actual victims.  At the moment of the plea, there has been virtually no fact, let alone legal, investigation, and no discovery of a meaningful sort. Further, in the present era of quality-of-life or “Broken Windows” policing, where courts are clogged with massive numbers of arrests for minor crimes and offenses, rapid and rampant guilty pleas serve to shield police conduct and the constitutionality of their arrests from any kind of substantial scrutiny. But perhaps the biggest concern with the prevalence of speedy guilty pleas is the ever-growing host of negative consequences that attach to and flow from those pleas.  Even a guilty plea to a statutorily designated non-criminal offense or violation can lead to deportation, eviction, loss of various licenses, inability to obtain loans, etc.  In a recent NPR story, Robin Steinberg of the Bronx Defenders argues that because collateral consequences are so numerous and their application so uncertain, “indigent defendants need access to subject-matter experts in areas like family law and immigration to know how the laws will play out in their individual circumstances, before coming to the plea-bargaining table and before the laws are imposed.” With misdemeanor cases far outpacing felonies (the National Center for State Courts puts the percentage at 70%-80% of the annual criminal docket nationally), it is in the Criminal Court where most New Yorkers experience the criminal justice system.  As advocates of procedural justice argue, the treatment people receive in the courts will go a long way to affecting how they act in the future.  It is an obvious truth that being shuttled through an opaque and uncaring system does not engender trust and respect for the Criminal Court. The Wall Street Journal, by shining a light on the way that millions of people are treated in misdemeanor court, does a great service to all people interested in promoting fairness and decency in our courts.  Now the question becomes whether those with the power to change the way things are done have the corresponding will to do so.   Read more

“The Evolution of a Prison Reformer”

On November 10, The Crime Report posted a profile of CCRC Board member Glenn Martin and the organization he founded, Just Leadership USA.  Just Leadership is dedicated to cutting the US prison population in half by 2030 and to training formerly incarcerated individuals to become leaders in promoting criminal justice reform.  Martin himself spent six years in the New York prison system, and later served for more than a decade in key positions at The Fortune Society and Legal Action Center. The profile describes Martin’s participation last October in an unprecedented meeting between Obama Administration officials and leaders of the community of formerly incarcerated individuals, organized by the Attorney General Office’s Interagency Reentry Council.  The meeting focused on sentencing reform, but it presented an unusual opportunity to challenge some stereotypes about who should be at the table when reform is discussed. At its core, Martin said, Just Leadership challenges some people’s broad assumption that formerly incarcerated people “can’t read or write” or smartly weigh in on the socially and emotionally tangled issues of crime, courts and corrections. For the most part, the individuals leading that discussion tend not to have been imprisoned. Although many of them play significant roles in the courts, corrections and policing, some harbor ideals and opinions that are not always grounded in fact, Martin argues. “You don’t achieve a moral argument for reform if you do what [so-called] progressives have been doing for years, serving up the ‘perfect prisoner’ who is the first-time, non-violent drug offender . . . .  That person . . . actually doesn’t go to prison. I’ve never met him. That’s the person who went home from the courthouse. By the time [most] people end up in prison, they have multiple convictions.” Just Leadership, whose partners include the Columbia University Center for Institutional and Social Change, will host its first 10-month-long training in early 2015, and is inviting applications from former prisoners interested in playing a part in the national debate over crime, courts and corrections policy and reform.  The training will focus on organizational development, fundraising, marketing, public relations and other skills that will help them make their voices heard in Just Leadership’s campaign to halve the nation’s prison population by 2030. Martin contends that hoped-for reduction is not as far-fetched as it may seem, considering that New York State has cut its prison population by about 25 percent over the last 15 years. But Just Leadership’s core goal is to “shift the paradigm” of the criminal justice debate by appealing to the compassion and common sense of Americans, Martin said. Once ordinary citizens hear the real stories of individuals who have been incarcerated, and about the multilayered impact of mass imprisonment on society, “we’re going to get the system to tip,” Martin predicts. . . . . While serving time in prison, Martin said he realized that Americans were being “bamboozled” by standard explanations about who goes to prison and what happens to them once they get there. While “the concept of rehabilitation has deteriorated into rhetoric without substance,” Martin said, those inside were far from totally demoralized. “The people I shared cells with maintained hope, dreams and aspirations, just like any other American,” he recalls. “Many of them also had a keen understanding of the policies and practices that led to mass incarceration and, more importantly, what we can do differently.” Read more