Why Does Such a Progressive State have Such Antiquated Criminal Laws?

Although New York has finally “raised the age,” there are still a myriad of criminal justice problems in New York:

• Cash is still used for bail at the judge’s discretion on a wide varied of cases, from misdemeanors to felonies, penalizing the poor and working class and forcing people charged with nonviolent crimes to needlessly spend time in the state’s increasingly expensive jails.

• New York still sends thousands of its citizens into prison every year for drug possession instead of making them patients in drug treatment centers. Incarceration is much more expensive than drug treatment, and the lack of treatment increases recidivism.

• Although our jails and prisons feature many people with mental illnesses, there are not nearly enough programs to treat their needs, increasing the likelihood of recidivism.

• Legalization of marijuana would save New York hundreds of millions of dollars a year in enforcement, and in addition, avoid doing real harm to the lives of thousands of New Yorkers by defining them for life as “criminals” in the process.

• In Hurrell-Harring v. State of New York (2014), the Appellate Court determined that five upstate counties and the State had not always provided “effective counsel” as mandated in the Federal Constitution for criminal cases. The legislature decided to remedy this issue in Senate Bill 8114 by having the state government reimburse the counties for the cost of indigent legal aid, but the Governor vetoed the bill.

• There is no requirement for effective counsel in major civil cases such as child custody cases, tenant evictions and home foreclosures. People who can afford representation have an enormous and unfair advantage over people who can’t.  This kind of disparity happens every day in New York Civil Court, decisions that impact people for a lifetime.

• New York State still sends people to prison who committed non-violent misdemeanors who would be better and more efficiently treated outside of prison.

• Many prisoners who leave prison frequently don’t have individualized re-entry plans to help them access resources for housing, job training, drug treatment and the like. The lack of support people get when they re-enter society has a huge impact on their likelihood for recidivism.

• When a civilian is killed by the police, there is currently an executive order from Governor Cuomo enabling the Attorney General to act as special prosecutor. This order can be reversed at any time, and the Attorney General is a political position, who may be influenced by special interests or public opinion.

A constitutional amendment must be passed with the following features:

• As State Senator Michael Genaris has proposed, replace the cash bail system with a more equitable, flexible, and cheaper structure.
• People who are in prison for drug possession must have access to drug rehabilitation programs.
• People who are in prison and have a mental illness must have access to treatment.
• Marijuana use must be legalized.
• Legal Aid must be fully funded to provide effective counsel for criminal cases.
• Effective counsel must also be required for major civil cases such as child custody, orders of protection, and home foreclosures.
• People who commit non-violent misdemeanors should be given alternatives to prison, such as home confinement, drug court, even a stay at a halfway house.
• All people who spend time in prison should have individualized re-entry programs to help them successfully re-enter society.
• Require a Special Prosecutor for any killing by the police.

What do you think?

• ““New York City and New York State purport to be the progressive capital of the country, so there is a disconnect between the rhetoric and reality,” said Councilman Ritchie Torres, a Bronx Democrat, who watched as a reform package he sponsored was shelved this year.” --The New York Times,“Criminal Justice Reforms Stall in a Liberal Capital: New York,” August 21, 2016.

• “Everyone deserves a second chance. We’re working to break the cycle of returning to jail for those in City custody by making sure they have opportunities to learn and grow while in jail, and connecting them with the re-entry services to support a pathway to stability when they leave,” said Mayor Bill de Blasio. – From "Mayor De Blasio Announces Re-Entry Services for Everyone in City Jails,” March 29, 2017.

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[Institutions for detention of criminals; probation; parole; state commission of correction]

  • 5. The legislature may provide for the maintenance and support of institutions for the detention of persons charged with or convicted of crime and for systems of probation and parole of persons convicted of crime. There shall be a state commission of correction, which shall visit and inspect or cause to be visited and inspected by members of its staff, all institutions used for the detention of sane adults charged with or convicted of crime. (New. Derived in part from former §11 of Art. 8. Adopted by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938. Amended by vote of the people November 6, 1973.)



The United States is addicted to imprisonment.  We imprison more people per capita than even the most virulent dictatorship:

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A number of states have used ballot initiatives for some measures of criminal justice reform:


In 2002, the voters passed Proposition 302 that expanded current law so that a person who is convicted for the first time of personal possession or use of drug paraphernalia is eligible for probation and drug treatment and is not subject to incarceration.

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About Marijuana,” NORML.

Blueprint for Criminal Justice Reform for New York City,” The ATI/Reentry Coalition, May, 2016.

California Proposition 47, Reduced Penalties for Some Crimes Initiative (2014),” Ballotpedia.

Citing Cost, Cuomo Vetoes Indigent Legal Defense Bill,” by Jimmy Vielkind, Politico, December 31, 2016.

Continuity of Offender Treatment for Substance Use Disorders from Institution to Community,” Substance Abuse and Mental Health Services Administration, 1998.

Crime and the Adolescent Brain,” by the Editorial Board, The New York Times, March 11, 2017.

Criminal Justice Reforms Stall in a Liberal Capital: New York by Joseph Goldstein and David Goodman, The New York Times, August 21, 2016.

Cuomo Appointed A Special Prosecutor For New York Killings Involving Police,” by Christopher Mathias, The Huffington Post, July 8, 2015.

Despite Public Outrage, Bail Reform Still Needed in New York City,” by Randal John Meyer, The Huffington Post, February 22, 2016.

Dose of Reality: The Effect of State Marijuana Legalizations,” By Angela Dills, Sietse Goffard, and Jeffrey Miron, the Cato Institute, Policy Analysis No. 799, September 16, 2016.

The Effectiveness of Substance Abuse Treatment with Criminal Justice Clients,” Florida Alcohol and Drug Abuse Association.

Gov. Cuomo Drops the Ball,” by the Editorial Board, The New York Times, April 8, 2014.

Hurrell-Harring v. State of New York,” Court of Appeals of New York, 930 N.E.2d 217 (N.Y. 2010)

Jailing Juveniles: Incarcerating Youth in Adult Jails in America,” Campaign for Youth Justice, November, 2007.

Kalief Browder, Held at Rikers Island for 3 Years Without Trial, Commits Suicide,” by Michael Schwirtz and Michael Winerip, June 8, 2015.

Mass Incarceration and Children’s Outcomes,” by Leila Morsy and Richard Rothstein, Economic Policy Institute, December 15, 2016.

Mayor de Blasio Announces 18% Drop in City Jail Population Since Taking Office,” Digital NYC, March 23, 2017.

Mayor De Blasio Announces Re-Entry Services for Everyone in City Jails,” Digital NYC, March 29, 2017.

Testimony on Raising the Age of Adult Criminal Responsibility, by Ashley D. Cannon, Citizens Crime Commission of New York City, February 9, 2016.

The Teen Brain: Still Under Construction,” The National Institute of Mental Health

Treating Offenders with Mental Illness: A Research Synthesis,” by Robert D. Morgan, David B. Flora, Daryl G. Kroner, Jeremy F. Mills, Femina Varghese, and Jarrod S. Steffan, Law and Human Behavior, Vol 36(1), Feb 2012.

Mayor de Blasio Announces $17.8 Million to Reduce Unnecessary Jail Time for People Waiting for Trial,” NYC.gov, July 8, 2015.

New Jersey Voters Reform Broken Bail System,” Drug Policy Alliance, November 4, 2014.

New York State Arrests Among 16-17 Year Olds,” New York State Division of Criminal Justice Services.

NYC to Offer Non-Bail Option for Some Suspects,” by Jake Pearson, The Associated Press, July 8th, 2015.

The Price of Jails: Measuring the Taxpayer Cost of Local Incarceration,” The VERA Institute of Justice, May 2015.

The Justice Imperative,” by Brian E. Moran, Malta Justice Initiative, 2014.

Will New York Scrap Its Broken Bail System?” by John