Creating a More Just New York

The primary purpose of government is to keep people and their property safe, and to protect civil liberties. A fair and functioning criminal justice system is fundamental to any government’s ability to carry out this primordial function.

When the government exercises its extraordinary power to deprive people of their liberty, it does so for three legitimate reasons. First, punishment provides justice for the victims the criminal has harmed, and signals to law abiding people that society will protect them. Second, imprisonment is meant to deter the individual who commits a crime from doing it again. Third, the practice is meant as a public warning to deter other would be criminals from illegal actions.

For the system to remain legitimate in the eyes of the people it is meant to protect, it must be perceived as fair. Criminal justice decisions must be made on the merits of each case without regard to the station in life of the accused. “Justice must be color blind,” is a short hand way of capturing the idea that a person’s race, and for that matter gender, religion, economic standing, sexual orientation, political affiliation or any other personal attribute must have no bearing on the administration of justice. Yet, we know this is not the case.

The ways in which laws are enforced, the treatment people receive in the courts and in the corrections system, and the steps taken to facilitate reintegration to society are riddled with inequities in New York State. Analysis over time has shown that whites, blacks, and Latinos are treated differently for the same crimes. An apt example much in the news are the studies that prove all three groups smoke marijuana at about the same rate, but whites have been arrested for the behavior far less frequently than others. Approximately 75% of New York’s nearly 50,000 inmates are African-American or Hispanic, while over 60% of the state population is white.

Our justice system’s structure gives people with access to skilled legal representation a great advantage. The wealthy can afford it, and they can contend with the many economic consequences of lengthy legal proceedings that disrupt working lives. The less affluent cannot. Prosecutors can often bully poor defendants into accepting plea bargains because to people of modest means the cost of court appointments in money and time is overwhelming. The intersection of class and race in New York as elsewhere in America means that a divide between the rich and the poor is also in great measure a divide between whites and people of color. This is the case with our state’s criminal justice complex.

Two very different cases reveal New York’s two-tier legal system in tragic human terms. One is from the Bronx , the other is from the financial services industry. Kalief Browder is dead and John Stumpf is living large.

Browder was a sixteen year-old African American from the Bronx accused of being part of a group who stole a boy’s back pack. He was arrested and a judge set bail at $3,000, which Browder’s family did not have. He was placed in pre-trial detention on Rikers Island. For three years. Two of them in solitary confinement. With damaging psychological consequences. The district attorney’s office had no evidence and no witnesses. Prosecutors tried and failed to bully Browder into confessing. While in prison, Browder attempted to kill himself. Sometime after he was finally released, he succeeded. The tragedy is part of the compelling case for closing Rikers Island, for reforming sentencing rules so that only violent crimes and major offenses are punished with incarceration, and for the New York State Legislature’s 2019 decision to replace cash bail in most instances with judicial discretion over pre-trial release.

Stumpf was the chief executive of Wells Fargo Bank for years while it created millions of fraudulent bank accounts and hundreds of thousands of fraudulent insurance policies. The dishonest fiction of steady growth made Wells Fargo a darling of the financial services industry. Its stock value rose and Stumpf pocketed millions in bonuses. When the fraud was discovered, some mid-level and junior staff members were fired. Stumpf was not prosecuted for heading up what might reasonably be called a criminal enterprise, nor were any members of his management team.

Eventually Stumpf was forced to resign and the Federal Reserve Bank imposed punitive restrictions on the bank. Other regulatory agencies levied large fines as well. Just a cost of doing business for Wells Fargo, which operates branches around New York State and across the nation. Stumpf should have been prosecuted for massive fraud.

These are extreme cases, but they are not isolated. Poor people of all persuasions, but particularly those of color, have limited access to adequate legal representation in New York State. A consequence is that justice is often denied. Wealthy people, especially whites, benefit from legal privilege.

In recent years, New York State has made substantial reforms to its criminal justice system, yet much remains to be done. Here are six steps that will make our justice system more equitable for all:

• Level the playing field in court
• End cash bail
• Create a rehabilitation system that actually rehabilitates
• Close Rikers Island in a way that improves criminal justice outcomes
• Tackle gang violence
• Legalize marijuana

Level the Playing Field in Court

Any criminal justice system that puts poor defendants at a disadvantage compared to rich ones is unjust. Wealthy defendants can hire an army of lawyers with support staff, and ample resources to confront government prosecutors and their teams. Right now in New York courts, low-income residents of our state are typically represented by underpaid and overworked public defenders who often lack the resources to provide an adequate defense.

While public defenders are underpaid in many communities across the country, the problem is particularly acute in New York City. In Washington, D.C., the starting salary for a public defender is $73,000. In Oakland, its $98,000. In New York City, with a higher cost of living than either Washington or Oakland, a first year attorney at the Legal Aid Society is paid $62,000. Overworked and underpaid, many public defenders quit after a short time for better-paying opportunities, which puts additional strain on those who remain while ensuring the pool is always inexperienced.

In recent years, advocates have pushed New York City leaders to increase funding in the city budget to raise public defender salaries. This commitment should be increased and expanded statewide. New York lawmakers should pass legislation that provides enough funding for public defender salaries so that they are equal to their counterparts in prosecutors’ offices throughout the state, and also increase the number of public defenders so caseloads are manageable. Mitigating the discrepancy in the salaries of the attorneys on both sides of the case, and balancing fairly the resources available to defendants and prosecutors, will increase the chances that justice is determined by the facts, and not because of inequities in legal representation.

End Cash Bail

In 2017, 33,000 New Yorkers ended up behind bars to await trial simply because they were unable to post bail. A system that jails thousands of people who have not been convicted of a crime because they are poor is profoundly unfair. Time spent in jail awaiting trial is damaging to mental health, prevents defendants from working and earning a living, and harms a person’s ability to provide for a family. In extreme cases people can fall behind on mortgages or rent and lose their home, and in the case of single parents, they can lose custody of their children. No exceptions are made for financial circumstances.

In New York’s often violent jail environments, people are apt to find themselves in situations they would not normally encounter. They risk getting caught up in inmate fights, and can find themselves charged with additional offenses that carry severe penalties they would never have faced except for an inability to raise bail.

The state should retain the right to detain dangerous defendants where there is credible evidence they might harm themselves or others, or that they might flee. Lack of financial resources should never be a reason to deprive a defendant of liberty while awaiting trial.

In 2019, New York State ended cash bail for most misdemeanors and non-violent felony offenses. Some estimates suggest New York’s reforms will eliminate cash bail for 85% of defendants. This was a significant and promising first step. California and New Jersey have led the way by abolishing cash bail entirely. New York should be next.

Create a Rehabilitation System that Actually Rehabilitates

The primary purpose of a prison system is to deliver justice to victims and to deter criminal behavior. Yet, each year approximately 25,000 New Yorkers are released from state prisons back into society. Some will have been detained only briefly, but many will have been incarcerated for years.

Convicts face formidable challenges achieving self-sufficiency upon release. Lack of education ranks high on the list of obstacles. More than forty percent of New York’s inmates have not completed high school and fewer than five percent have finished college. Many studies have shown that the more educated individuals are, the less likely they are to commit crimes. One New York State Department of Corrections study suggests recidivism declines by nearly half when correctional facilities provide educational opportunities. The implications of that statistic are enormous for convicts, their families, and the rest of society which has a stake in reducing crime. The financial consequences for taxpayers are also significant. The cost of care, custody, and control of an incarcerated New Yorker is nearly $70,000 per year. One study suggests that every dollar invested educating prisoners is repaid five times by the reduction in repeat offenses. As a consequence all New York taxpayers have a stake in ensuring that the Department of Corrections provides a range of programs to elevate the education level of as many inmates as possible. This is a point that opponents of prison education foolishly ignore when denouncing the idea of providing convicts with more education.

Graduate Equivalency Diploma (GED) programs offer inmates access to a high school education. For the two fifths of inmates who lack this fundamental base of knowledge it is a critical step towards becoming a productive citizen. All ought to have access to a program and should be encouraged to take advantage of it. The ability to perform arithmetic and common mathematical calculations, and an ability to read and write at a basic level are essential skills for many jobs and for many of life’s basic functions. Developing them increases the chance for a successful life.

Inmates with high school diplomas should have access to higher learning. The Bard Prison Initiative operated by Bard College inside six New York prisons provides a college education to carefully selected inmates. Students in it tend to be model inmates since adherence to rules is a condition for enrollment. The program offers a robust combination of valuable skills to help ex-convicts land jobs when released, and also broad based education in social sciences and humanities that provides important perspective on what it means to be a responsible citizen. NYU, Cornell, and the SUNY system are among thirty private and public colleges and universities now involved in fifteen different privately sponsored programs at twenty-five prisons. Some are financed in part from forfeiture money made available by the District Attorney of New York and other public sources. Yet, many New York prisons offer no college option, or support too few seats to serve all who would benefit.

In 2019 State Senator Jamaal Bailey introduced SB 2206, a bill to create a commission of experts to study the issue of in-prison education and to devise a plan to invest taxpayer dollars wisely in educational opportunities that have proven effective for inmates. Bills with similar intent have been submitted in the New York State Assembly. The State Legislature should pass a law establishing a commission to study the issue as a first step towards making our prison system more humane and more cost-effective.

Increasing the wages paid to prisoners who work is another step that will promote rehabilitation. Currently, New York inmates earn anywhere between 10 cents and $1.14 per hour, with an average wage of 62 cents. Paying so little smacks of slave labor and sends a message to inmates that they have no worth. If we want convicts to be productive citizens when released, we must teach them to value themselves and give them hope for achieving financial self-sufficiency. They should be paid the minimum wage for prison work, and have a chargeback for a substantial portion of their earnings in return for the state’s need to provide room and board, just as they would have to pay for groceries and rent on the outside. The net amounts due to inmates, which might amount to $3.00 an hour, a figure some have proposed instead of the current paltry wages, could be placed in inmate commissary accounts with restrictions on how much could be spent and how much saved. The savings would be available when the prisoner is released to provide support for a successful return to society.

The state also has compelling reason to increase mental health services for the prison population. The number of people incarcerated has fallen over the past decade, but the proportion suffering from severe mental illness has risen. Roughly twenty percent of prisoners have severe psychological problems. Those who are dangerous to themselves and others must be separated from the larger society. Some may never be well enough to return. But they all need treatment and many have the potential to live better and more productive lives if they received treatment for their condition. A state medical review board found that during a recent five year period, fifty inmates died because of inadequate staff comprehension of mental illness and insufficient medical services. One such tragedy cost the state $6 million in settlement of a law suit, so providing better care will provide financial benefits as well as prove more humane.

New York should strive for a prison system that provides justice to victims, deters crime, and that also seeks to rehabilitate convicts, for their sake and society’s. Providing sufficient education, work opportunities, and mental health care will benefit the prison population and the public at large.

Close Rikers Island in a Way That Improves Criminal Justice Outcomes

During its near century long history as a principal detention center in New York City’s jail system, Rikers Island has been characterized by long periods of unacceptably high violence and corruption with occasional periods of acceptable levels of control. For the past fifteen years Rikers jails have presented a threat to the thousands incarcerated there and to the guards assigned there. It is located on an island between the Bronx and Queens where it is isolated from relevant courthouses, defense attorneys’ offices, and the neighborhoods where detainees and their families live. The inconvenient location makes commuting to and from the jails for staff and visitors long, and introduces enormous inefficiency because of the need to transport prisoners on densely congested highways to courthouses located miles away.

Roughly eighty percent of Rikers inmates are in pre-trial detention, meaning they have been accused of a crime but have not yet been tried, much less convicted, of wrong doing. They are entitled to the presumption of innocence, but in many instances are treated as if guilty. Those ultimately found innocent will have experienced disruption to their work, school, and family lives. Housing those defendants close to home in an orderly, functional facility would keep them in closer touch with family, friends, religious leaders and others who constitute a critical support system for inmates during a difficult time, making it less likely that an inmate will be a disruptive force inside the jail and facilitating a return to productive behavior when released.

The remaining twenty percent of Rikers residents are convicts serving sentences of a year or less, or who are awaiting transfer to other prisons. All of the inmates, convicts and detainees alike, are being held in conditions that a federal investigation determined violate their constitutional rights. Consent decrees intended to ensure humane treatment inside Rikers jails for detainees and prisoners have not been complied with and a February 2018 review by the State Corrections Commission confirmed that Rikers houses the worst county jails in New York.

A commission led by the former chief judge of New York State recommended that the jails on Rikers Island be closed and replaced by detention centers located in each of New York’s four largest boroughs to house inmates scheduled for trial in the borough. Staten Island was exempted from the proposal. New York City approved the commission’s recommendations. The initiative offers a chance to restore the New York City jail system to humane standards and to improve the administration of justice in tangible ways. However, to avoid converting one large center of unacceptable treatment for inmates into several smaller ones requires a series of steps.

• New York City must continue the law enforcement vigilance that has helped reduce crime from unacceptably high levels between the mid-1970s and early 1990s to the much lower levels we have experienced since.
• The number of people locked-up in local jails must be limited to those who represent a serious threat to themselves or the community, or serious flight risk.
• Elimination of cash bail altogether is a necessary condition to achieve the goal of limiting lock-ups to those who require it based on relevant criteria.
• Creative alternative programs to incarceration for non-violent, first offenders in particular should be fully funded and expanded. Careful records should be kept to determine which programs succeed at channeling one time lawbreakers into positive social roles.
• Extensive social services within the jails must be fully funded. Many crimes are committed by people suffering from mental illness or social dysfunction. Providing services to them will reduce inmate violence inside the jail and also inform efforts to deliver justice.
• Standards at the NYC Department of Corrections must be raised and greater discipline enforced. Positions must be fully staffed to prevent forced overtime and unreasonable schedules that contribute to staff anxiety and misbehavior.
• Use of solitary confinement should be limited in accordance with best practices at jails elsewhere in New York State and the United States.
• The new jails called for in the plan to close Rikers Island must be built adjacent to the county courthouses in each borough.

On the last point, site locations for jails anticipated in Brooklyn, Manhattan, and Queens are appropriately near the courts where their inmates will appear. The proposed site in the Bronx is located miles away in a disadvantaged neighborhood with potential for healthy mixed use development. An alternative proposal that would locate the Bronx jail adjacent to the courthouses presents more logistical challenges for construction, but is a superior solution and should be adopted.

Once Rikers is closed as a jail system, its 414 acres can be used for productive alternatives. One proposal, given its isolated location, is to convert the space into an alternative energy site for wind and solar power. Other worthwhile uses are also possible. New York City should apply its considerable development resources to finding a smart use for this unique parcel of land.

Tackle Gang Violence

While violent crime has been on the decline over the last several decades, New York continues to suffer from unacceptable levels of gang violence. In recent years, MS-13 has murdered dozens wreaking havoc in certain sections of Long Island, and gangs have increased violent activity in parts of New York City and elsewhere. Preventive measures by the governor’s Gang Violence Prevention Task Force and local efforts that focus on community outreach, educational efforts, and alternative paths for young men at risk of joining gangs are all necessary. In partnership with local and federal law enforcement officials, the state must commit the resources required to disrupt and dismantle gangs.

Over the span of decades our law enforcement agencies have learned how to attack organized criminals, infiltrate them, and crush them. It is an ongoing process since new gangs emerge even as old ones are destroyed. It requires constant vigilance and adequate resources. Ultimately, it is a test of political will and the determination to ensure no community is subjected to the tyranny gangs seek to impose on law abiding citizens.

Legalize Marijuana

New York State took measures in 2019 to decriminalize marijuana, but it stopped short of full legalization for recreational use. That means that no more New Yorkers will be put in prison for using the substance, which has removed a foolish burden on our people and on our courts and correction system. People convicted of possession of marijuana as their sole offense have had their criminal records expunged. This welcome decision was motivated by a commitment to social justice. It removed an unwarranted obstacle on otherwise law-abiding New Yorkers that can prevent them from achieving important goals like securing good employment.

Yet, it is not yet legal to sell marijuana in New York. Marijuana’s ambiguous status means that major distribution outlets continue to be controlled by criminals, who at times protect their financial turf with violence. Eliminating the underground system promises to reduce serious crime. So it is time for New York to complete the transition and legalize marijuana for recreational use.

New York’s leaders should be clear about their reasons for legalizing recreational marijuana. The push is motivated by objections to unequal enforcement that incarcerated disproportionate numbers of blacks and Latinos, and the belief that the consequences of forbidding its use are worse than the consequences of allowing it. It is not because medical experts believe marijuana is good for people. It is not. While it has some positive medical properties, the negative consequences for the physical and mental health of frequent users can be serious. It has addictive qualities, and can serve as a gateway drug to more dangerous substances. Ultimately, the rationale justifying recreational marijuana is the same as it was for alcohol in response to Prohibition. The proportion of the population who have signaled they want to use the substance is too great for prohibition of it to be practical.

Legalization must come with strong safeguards to prevent children and young teens from using marijuana, including limitations on advertising near schools and regulations for social media. Laws and policies to prevent people from driving while high or engaging in other reckless behavior will also be necessary. Few would be happy to board a commercial airplane whose pilot was high on cannabis. We will also want to study the impact of legalization on public health over time and respond accordingly.

The economics of legalizing marijuana have been contentious. Some see it as a new cash cow to fund government programs, but this approach presents serious issues. Creating a state full of marijuana users is not smart government, and policymakers should not give government a financial motivation to do so. Advocates of social justice point out that poor people of color have suffered disproportionately from criminalization and therefore have a claim on the anticipated financial benefits of a new legal business. The argument has merit. Large commercial entities want access to the business to reap profits at scale. Given all the country has learned about how Big Tobacco approached marketing cigarettes to consumers with devastating health consequences, and how pharmaceutical firms promoted the horrific opioid epidemic currently underway, New York lawmakers should not allow similar behavior to develop with respect to the marijuana industry.

The state should establish clear licensing standards that include measures to prevent the domination of the state marketplace by just a few wealthy retailers. For example, licensees could be permitted to operate within only a single county, and owners might be limited to just three store locations. The state could create a small business loan and grant program that favors applicants who seek to open commercial enterprises in the communities in which they live. This type of approach would prevent domination by large companies and ensure opportunity for minority entrepreneurs who may lack access to traditional forms of capital.

Conclusion

For the past two decades violent crime in New York State has fallen and our streets have become safer. Terrorist attacks have been largely contained. Yet, some neighborhoods continue to suffer from unacceptable levels of crime, and in many respects New York maintains two justice systems: one for the wealthy dominated by white New Yorkers and one for the poor populated overwhelmingly with people of color.

While New York has taken strides to reform its justice system over the last several years, much work remains. By adopting policies that seek to rebalance the judicial scales, changing laws that lead to mass incarceration, improving the state prison system so that it rehabilitates rather than merely houses inmates, and making other changes that reflect the socioeconomic disparities at present, policymakers can create a more just system for all New Yorkers.