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

There has been some positive movement in lowering the jail population in New York City.  The Mayor’s office announced in March 2017, “the New York City jail population has fallen by 18% since taking office, outpacing any three year decline since 2001. The average daily population declined from 11,478 in December 2013, just before Mayor de Blasio took office, to an average of 9,362 this month.”

Although New York City and the State itself has been cutting its jail and prison population the last few years, we are still addicted to using the criminal justice system to solve social and economic problems.



State Senator Michael Gianaris’ Proposal on Cashless Bail

State Senator Michael Gianaris of Queens has proposed a bill (S3579) that would eliminate money bail in New York.  Instead, pretrial service agents would screen defendants to determine their flight risk. They would then recommend the most appropriate of three outcomes to judges before trial:

  • Jail

A person accused of a violent crime would be remanded to the sheriff.

  • Released on their own recognizance

A person accused of a misdemeanor or nonviolent crime would be released.

  • Released but subject to non-monetary conditions

This might require a person to comply with an order of protection or stay at his job, etc.

In this structure, no one would have to pay to be released from jail.

As Vice News has written:

Gianaris—who also works as a lawyer specializing in wrongful convictions—called the current regime of setting bail in New York on flight risk an “anachronism,” or something “left over from England in the Middle Ages.” It is not in line with the realities of criminal justice today, he argued. “The idea that a wealthy person is less dangerous than a poor person doesn’t make any sense,” he said.

This would also enable thousands of New Yorkers every year to keep their jobs and maintain their families as their cases go through the legal system. This would also save money.  For instance, in 2014, New York City spent nearly $2.4 billion per year on its jail system when pensions and all  other costs are included and has an average daily population in its jails of over 11,000 people, many of them nonviolent offenders or people who can’t afford bail.

Drug and Alcohol Rehab, Mental Health and Education Programs for Prisoners

Our jails and prisons are full of people with substance abuse and/or mental illness issues.  According to The Justice Imperative:

It has been estimated that two-thirds of inmates meet the criteria for substance abuse or dependence, but less than 15 percent receive treatment after incarceration.  It is also estimated that 24 percent of inmates in state prisons have a recent history of mental illness, but only 34 percent receive treatment after incarceration.

Women prisoners in particular have huge needs.  According to recent studies (The Justice Imperative, p. 55):

  • 73% of women in state prisons suffer from mental disorders (as compared to 12 percent of women in the general population and 55 percent of male prisoners)
  • 75% of female prisoners with mental health problems have substance dependence or drug addictions.
  • 68% of women prisoners have experienced past physical and/or sexual abuse.

However, the evidence is clear that treatment for addicts lowers the rate of recidivism.  For instance, a five-year study of the Drug Treatment Alternative-to-Prison Program (DTAP) in Brooklyn, New York found that people who completed the program had a recidivism rate 67% lower than that of the control group who didn’t participate in the program. Many similar studies around the country have also been documented.

There are similar positive results when prisoners are treated for their mental illnessFor example, “Psychiatrist Jeremy Coid and his colleagues at St. Bartholomew’s Hospital in London found in 2007 that forensic patients in the U.K. were 60 percent less likely to reoffend than released inmates and 80 percent less likely to turn to violence.”

Similarly, a meta-analysis of published studies determined “interventions specifically designed to meet the psychiatric and criminal justice needs of offenders with mental illness have shown to produce significant reductions in psychiatric and criminal recidivism.”

In addition to substance abuse and mental illness programs, providing educational program to prisoners, many of whom have never even graduated high school, has been clearly proven to reduce recidivism and save money.  A 2013 RAND study, for instance, that surveyed 30 years of research, concluded that every dollar spent on inmate education saved $4 to $5 on reincarceration.

As a resent example in New York State, Hudson Link partnered with Mercy College to offer GED and college degrees to inmates.  The recidivism rate within three years of release for Hudson Link graduates is less than 2 percent over the 16-year history of the program. (The Justice Imperative, p. 85).

It’s clear that treating prisoners and providing them with educational opportunities will cut down recidivism and ultimately reduce the costs to our State and improve the lives of tens of thousands of New Yorkers.

Legalization of Marijuana

Marijuana is the third most popular recreational drug in America and has been used by nearly 100 million Americans.  It makes little sense to criminalize a drug a third of the country has used.

There are a number of states that have legalized marijuana and researchers are beginning to learn a great deal about the impact legalization has had.  None of the fears about legalizing marijuana have borne out.  According to a recent study by the Cato Institute:

Our conclusion is that state marijuana legalizations have had minimal effect on marijuana use and related outcomes. We cannot rule out small effects of legalization, and insufficient time has elapsed since the four initial legalizations to allow strong inference. On the basis of available data, however, we find little support for the stronger claims made by either opponents or advocates of legalization. The absence of significant adverse consequences is especially striking given the sometimes dire predictions made by legalization opponents.

There is simply no apparent downside to legalization, and a great upside in conserving the justice system’s time and money to deal with more urgent issues.  To learn more about this issue, go to New Directions for Drug Treatment & the Legalization of Marijuana elsewhere on the site.

Right to Effective Counsel in Criminal Cases

The United States has an adversarial legal system that requires effective counsel for both sides. As the Supreme Court said in McMann v. Richardson (1970), “The right to counsel is the right to the effective assistance of counsel.”

In New York, the costs of legal aid have been borne by the counties, which have often not provided defendants with adequate services.  This issue was brought to court in the case of Hurrell-Harring v. State of New York.  The plaintiffs claimed that “criminal defendants often went unrepresented during arraignments; if and when attorneys were appointed, they were often unavailable or unresponsive; appointed attorneys often missed court appearances or were not prepared for the appearance; and appointed attorneys often waived important rights without consulting the defendants.”

The New York Civil Liberties Union, acting for the plaintiffs, won the case, and the State agreed to provide the proper funding to ensure effective counsel in the five counties involved in the suit.  The people who lived in New York’s 57 other counties, however, were no better off.  The State Legislature then passed a law to move much of the cost of providing legal services to the State.  However, the Governor vetoed the bill, and the lack of effective counsel in New York remains an open issue.  A constitutional amendment could permanently shift the costs of providing effective counsel to the State and end this issue once and for all.

Right to Effective Counsel in Civil Cases

A federal constitutional right to effective counsel is confined to criminal court, not civil court.  Although civil court often deals with profoundly important cases – domestic violence restraining orders, child custody, home foreclosures and the like – there is no legal requirement not just for “effective counsel” but for any counsel.

Civil cases are divided into four types:

  • Tort claims, where a wrongful act that results in injury to someone’s person, property or reputation,
  • Breach of contract claims, which involve failure to perform,
  • Equitable claims, which order a party to take or stop an action (such as a restraining order),
  • Landlord/tenant issues, which consist of disputes between landlords and tenants, and
  • Divorce and family law, for marital disputes, child custody cases, and so on.

Clearly, some civil cases are more important than others.  A right to effective counsel may not be needed to settle $500 breach of contract claim.  However, a tenant eviction or homeowner foreclosure, an order of protection, or a child custody case may have profound ramifications for the people involved that will last a lifetime. These can certainly be considered major civil cases that require effective counsel.

Currently, only people who can afford to have lawyers in civil cases have lawyers in civil cases.  This has not been acceptable in criminal cases since Gideon v. Wainwright in 1963; it certainly shouldn’t be acceptable in life-changing civil cases in New York today.  A right not simply to counsel, but to effective counsel in major civil cases should be enshrined in our constitution.

Alternatives To Prison

New York has an Alternative to Incarceration (ATI) program, but it needs to be brought to scale.  The existing ATI program has been very effective.  According to the Blueprint for Criminal Justice Reform for New York City:

“Research has shown that community-corrections programs are more effective than incarceration in reducing recidivism, and far less costly than prison, jail, juvenile placement, or juvenile detention….The two-year recidivism rate of program graduates from programs in the ATI/Reentry Coalition is less than 20%, far lower than the 42% recidivism rate of those released from incarceration.”

There are various alternatives to prison programs throughout the country that have achieved marked success.  Vermont, for instance, has a court diversion program with required treatment for people arrested for using heroin.  The result has been that “at least eighty percent of participants are drug free after one year.” (The Justice Imperative, p. 98).

Offender Re-entry

Offenders who are released from prison need a complex web of support to successfully re-enter society and not become a recidivist.  This requires an assessment of each individual prisoner, an understanding of their specific medical and psychological needs, and a potential array of resources – Medicaid, job training, housing support and the like – that that person requires.  Although there are numerous re-entry programs, the most complete one, as described above, is known as a Transition Accountability Plan.

These plans require the integration part of the Department of Corrections with an array of social services.  Numerous studies have shown “cost benefits, through reduced recidivism, of cross-system integration for offender transitional services.”

Although there are a number of effective re-entry programs, particularly in New York City, they are not built to scale.  However, Mayor de Blasio recently announced that all detainees in city jails will receive re-entry services by the end of 2017:

The administration’s new system will begin with expanded risk and need assessment on the first day that someone enters jail, offer five hours every day of programming that addresses an individual’s unique needs, and continue with support – including new employment and educational programs – after someone leaves jail and returns to the community.

This kind of individualized reentry program should be adopted statewide.

A Special Prosecutor for Killings by Police

For hundreds of years in New York, when the police killed a suspect or an innocent civilian, the cases were investigated by the local district attorney – the same person who is dependent on his or her relationship with the police in order perform their day-to-day duties as a prosecutor.

This conflict came to a head in New York City when a Staten Island grand jury empaneled by District Attorney Daniel Donovan refused to indict an officer in the choking death of Eric Garner.

In response to large and passionate protests, Governor Cuomo issued an executive order naming the state Attorney General as a special prosecutor for police killings when the victim was unarmed.

Although this is clearly a step forward in that it acknowledges the inherent conflict of interest in one of the state’s 62 District Attorneys to handle these cases, an executive order doesn’t go far enough.  An executive order can be easily revoked or not renewed, and the State would be back to the same place it was in before.

New York can do better.  We should have a clear procedure for police killings in our constitution, with a special prosecutor independent of the existing legal system – not a district attorney or an attorney general, but a unique position with its own staff to automatically handle these kinds of cases.