Criminal Justice Reform DETAILED
Criminal Justice Reform in New York
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.
- New York is one of only 10 states that has a “Blindfold Law,” which enables prosecutors to wait until just before the trial starts to share their evidence with the defense — putting the defense at a terrible and unfair disadvantage.
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.
- Prosecutors must automatically turn over to the defense police reports, witness statements, grand jury testimony, and so on, immediately and automatically, rather than just before the trial starts.
- ““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.
- “Non-violent offenders make up over 60 percent of the current U.S. prison and jail population. Non-violent drug offenders account for about one-fourth of all inmates, up from less than 10 percent in 1980. Brian E. Moran, “The Justice Imperative,” Malta Justice Initiative, 2014 (p. 1).
- “Sixty-one percent of New York inmates have fewer than eight years of education. An often insuperable impediment to post-prison success is the scarcity of jobs for formerly incarcerated people whose years since their truncated schooling have been barren of the instruction that could give them the manners and skills necessary for life after institutionalization…. However, 85 percent of Hudson Link graduates have jobs within three months of their release.” –George Will, The New York Post, “Saving the Future in Sing Sing,” June 16, 2017.
- Studies have found higher recidivism rates among juvenile offenders transferred to criminal courts compared with those who remained in the juvenile system….juveniles who eventually serve time in adult prison tend to commit more crimes and more violent offenses upon their release. Brian E. Moran, “The Justice Imperative,” Malta Justice Initiative, 2014 (p. 31).
- “According to a 2013 RAND study surveying 30 years of research, every dollar spent on inmate education translates to $4 to $5 saved on re-incarceration. Of course, opposition to rational prison policies is rarely about the money and much more often a knee-jerk response to anything that could be portrayed as leniency toward people who have committed crimes. It is also not infrequently laced with racial overtones.” – The New York Times, “Gov. Cuomo Drops the Ball,” April 8, 2014.
- “Far too many individuals awaiting trial who pose no risk to public safety are incarcerated simply because they cannot afford to post the bail amount set by the courts. Providing judges with more accurate and complete information about the defendants who come before them and instituting effective alternatives such as supervised release are critical steps in reducing overreliance on bail.” –Judge Jonathan Lippman, NYC.gov, “Mayor de Blasio Announces $17.8 Million to Reduce Unnecessary Jail Time for People Waiting for Trial,” July 8, 2015.
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:
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 illness. For 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 recent 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).
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.
Ending New York’s “Blindfold Law”
New York enables prosecutors to not share their evidence with the defense until just before a trial starts. This is often called the “Blindfold Law.” If the evidence is exculpatory, the defendant not having access to the evidence can lead to innocent people accepting plea bargains.
It’s true that defense attorneys can file a motion for discovery to access the state’s evidence sooner. However, judges can’t force prosecutors to comply with the motion, so they often don’t.
But the Supreme Court never set deadlines, and lower courts have split over whether Brady material must be turned over before a plea.
What constitutes such evidence is left to prosecutors to determine, and the line is not always clear.
It is hard to claim the outcomes of trials are just when access to the evidence is waited so heavily against the defendant.
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.
In Proposition 47, which was approved by the voters in 2014, a variety of crimes were redefined down. According to Ballotpedia:
The measure required misdemeanor sentencing instead of felony for the following crimes:
- Shoplifting, where the value of property stolen does not exceed $950
- Grand theft, where the value of the stolen property does not exceed $950
- Receiving stolen property, where the value of the property does not exceed $950
- Forgery, where the value of forged check, bond or bill does not exceed $950
- Fraud, where the value of the fraudulent check, draft or order does not exceed $950
- Writing a bad check, where the value of the check does not exceed $950
- Personal use of most illegal drugs
In January 2015, it was announced that as many as 1 million Californians could be eligible to change past felony convictions on their records under Proposition 47.
This state has recently reformed its bail system. In 2014, a referendum was passed to completely restructure the system. According to the Drug Policy Alliance:
The legislation implements wide-ranging reforms including non-monetary release options for low-risk individuals; a system under which pretrial release decisions are based on risk rather than resources; the use of risk assessments for suspects enabling courts to make individualized determinations of what conditions of release are appropriate; establishment of a pretrial services unit within the court system that will provide appropriate levels of monitoring and counseling for those awaiting trial.
[Institutions for detention of criminals; probation; parole; state commission of correction]
- 5.Thelegislature 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 byConstitutional Convention of 1938 and approved by vote of the people November 8, 1938. Amended by vote of the people November 6, 1973.)
“About Marijuana,” NORML.
“Blueprint for Criminal Justice Reform for New York City,” The ATI/Reentry Coalition, May, 2016.
“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.
“Defendants Kept in the Dark About Evidence, Until It’s Too Late,” by Beth Schwartzapfel, The New York Times, August 7, 2017.
“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.
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“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.
“Saving the Future in Sing Sing,” by George Will, The New York Post, June 16, 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 Surico, Vice News, October 8 2015.