Legislative Initiatives for New York State Criminal Justice System

There is now a growing movement in New York State and throughout the country for criminal  justice reforms that will reverse a decades old trajectory of increasing prison populations and the attendant policies which disenfranchise poor people and people of color.

The statistics are all too familiar. The U.S prison population has a set point of about 2.3 million people at any given time. Over ten million people are under the control of the criminal justice and penal system on any given day. Ninety seven percent of all criminal justice convictions in the United States are disposed of by guilty plea, with most carrying serious prison time. Eighty percent of all accused persons in this country cannot afford a private lawyer to defend them and must rely on an inadequate and underfunded public defense system. About 64% of incarcerated people in the United States are Black or Latinx. In New York State, fewer than 23% of parole ready prisoners are released and those who do manage to get out are hindered by reentry policies and practices that result in over 60 percent of these individuals returning to prison within three years, the majority due to technical parole violations.  Fewer than five percent of direct appeals or post-conviction proceedings result in reversal or vacatur, this largely due to procedurally insulated appellate and motion practice statutes and rules and the absence of meaningful defendant, appellate legal representation. Federal Habeas Corpus and Civil Rights litigation access were effectively eviscerated by 1995-96 Congressional action signed into law by former President Clinton. Access to the nation’s Article III Courts for prisoners and low income people based on civil rights laws dating back to Reconstruction have been severely restricted. 

The study and remediation of New York State’s criminal justice, judicial and penal systems is long overdue. The racial disparities which exist in these processes are made indisputably apparent by existing justice statistics in the public domain. These can be made available in a separate writing if you decide to proceed further with these initiatives. We can also provide data pertaining specifically to counties in Western New York State. For purposes of this memorandum, hopefully this summary will suffice. 

Overview:

New York State’s racially skewered prison population tracks and surpasses the national and state shift to the law enforcement model of criminal justice which was intensified by bipartisan legislation in the 1990’s to the present and the various configurations on the so called war on drugs. African American men have been particularly targeted for arrest, prosecution and imprisonment. This has resulted in the generational incarceration of black men with a corresponding devastating effect on families and communities of color, especially the children of incarcerated parents. There is no mistaking the fact that for all of it’s touting of a progressive identity, New York State has and continues to represent one of the most repressive and racially imbalanced criminal justice and prison systems in the United States. These policies became attenuated in the 1990’s when then Governor George Pataki embarked on what would be a twelve year process of appointing and reassigning law enforcement model judges and justices to the state’s four Appellate Divisions and the Court of Appeals and becoming directly involved in the operations of the Department of Corrections. As part of Pataki’s so called tough on crime agenda New York appellate jurisprudence, once considered second only to the Warren Court in terms of intellect and depth in protecting core constitutional rights, morphed into an extension of the state’s criminal justice apparatus whose primary purpose was to preserve convictions. 

Making the case from behind the wall:

In 2010 a group of black prisoners at the Mt. McGregor Correctional Facility who were then participating in a prisoner designed and conducted legal research class and workshop,  commenced an action pursuant to 42 U.S.C Sec. 1983 in the United States District Court for the Northern District of New York seeking, inter alia, a declaratory judgment establishing that heavily weighted and disparate Black and Latinx prison populations was based upon racial animus and thusly violated their civil rights. The Plaintiffs in the case based their respective positions in part on a report of the New York State Bar Association containing current data which documented an egregiously racially skewered statewide prison population. In seeking this relief Plaintiffs further relied on the decision of the United States Supreme Court in Batson v. Kentucky, which established that where valid applicable statistics were proffered to support a claim of racially imbalanced jury selection, this established valid prima facie proof of a claim of racial animus as a triable issue of fact thereby requiring the District Court to join the issue and proceed to a trial on the merits. In pursuing these claims., the Plaintiffs set forth in detail their respective case and family histories as justice impacted people, spanning multiple generations and laid the foundation for what should have been a full judicial hearing and disposition of the matter. This 2010 case, brought by these men at personal great risk in the face of the absolute physical controls the New York State Department of Corrections exercised over them, was summarily dismissed by United States District Judge Lawrence Kahn. Judge Kahn was able to deny the Plaintiffs even the right to serve the defendants with their summons and complaint and a joinder of the issues based upon the Clinton Era Prisoner Litigation Reform Act of 1995 which, among other things, gave the Federal District Court Judge the power to sua sponte dismiss any federal civil rights litigation commenced from a prison by an indigent prisoner and prevent the case from proceeding. Judge Kahn also utilized another Clinton era imposed restriction on prisoner access to the nations Article II courts, The so called Anti-Terrorism and Effective Death Penalty Act of 1966, which so procedurally detoured a state prisoner right to seek redress in federal habeas corpus as to essentially eviscerated that once sacred federal constitutional remedy. In effect the Court in McCorkle held that inasmuch as habeas corpus for state prisoners had now, among other procedural restrictions imposed by the recent habeas amendments, been confined to one year from the date the state conviction became final. The plaintiffs were all now procedurally barred from redressing their grievances in habeas corpus and pursuant to recent Supreme Court decisions were likewise barred from seeking redress under the reconstruction era civil rights federal law upon which their action was based. Heck v. Humphrey. 

So, the cycle of injustices and the systemic procedural insulations that preserve them prevented these men from even getting a hearing on the merits of their claims and stopped them in their tracks from exposing New York’s racist and oppressive criminal justice and penal practices for what they are. As the men were preparing their appeal to the US Court of Appeals, Second Circuit, New York State DOC transferred them each out of Mount McGregor to different prisons. One of the plaintiffs was placed in solitary confinement by the facility administration and initially lost his good time credits when he discussed the case with a visiting member of the New York Correctional Association. 

The New York State Department of Corrections continues to impose punitive and destructive policies and practices on Black families making it impossible for families to stay in contact with incarcerated loved ones and in some cases, physically abusing black prisoners whose families try to organize and pressure the system to change. One Albany New York woman of color whose husband is in a New York State prison serving 50 years to life based upon a wrongful conviction and whose two young grandsons are also serving time in New York State prisons had this to say about how the state targets and tries to tear apart black families. 

“….My name is Jeena R Cherry. I currently have 3 loved ones in the NYS prison system. On November 11, 2021 I went to see my grandson William Shedrick 21A0404 at Washington Corr Facility along with my his brother Nasire Cherry . I also had another grandson there whom I could not see because you can not call down two prisoners at once. So, I visited with William. While on the visit my other grandson Ikara Leak 21A1043 received a visit from his friends. He saw me tapped his chest which means I love you and sat down. I was never told I couldn’t speak to him so I told him “I love you too !” William decided to go back early so we said our goodbyes. He hugged me and left. While in line, waiting for my pass to get out of the prison my grandson Ikara got up, grabbed me and hugged me. I hugged him back. He was crying and it caused me to cry also. He sat down after also hugging Nasire and my grandson Nasire and I left the visiting room. When this took place no one said anything to me or my grandsons. No warning, no nothing. The next day, November 12,2021, I went to see my husband who is incarcerated at Green Haven Correctional Facility ( Shymel Curry 99A0231). I was told I lost my visitation and I will receive a letter in the mail telling me why. The sergeant that explained this to me also explained that it was because while I was at Washington Corr Facility I crossed visited. I never did that. I received the letter and it stated I had a loss of visitation for six months. I appealed the decision but still loss my visitation for 4 months instead of six months. I was never presented with any evidence of who made this claim against me and the minutes of the log book from the visiting room that day that I am entitled to. A hug from my grandson caused me, both my grandsons, and my husband to be affected by keeping them from the very person, me , whom supports them. It has been hard on us all. I still haven’t been told who accused me of cross visiting and when I ask I am ignored or made to jump through hoops to no avail. This was a unfair ruling not only against me but my family. I found it odd that my grandson hugged his cousin Nasire and Nasire never loss his visits due to “ cross- visiting “ but I did!” Punishing people for trying to keep their families together, even from behind a fence or wall at a prison visiting room table is calculated to ensure recidivism and generational, black incarceration. 

Proposed legislative initiatives and action:

1. Support Senate bill SS.15A1 and Assembly bill A.3475A on Elder Parole

It has been said that the truest measure of a society is how it trats its children and its elders. New York State warehouses thousands of prisoners age 55 and older, many of whom suffer from chronic, even fatal illnesses. The Elder parole bill has yet to make it out of committee. We request that you urge your Senators and Assembly people to support the bill. Statistics overwhelmingly demonstrate that regardless of the offense and time spent in prison, elder prisoners are the least likely to recidivate or to commit violent crimes. 

2. Support Senate bill S.7514/A on Fair and Timely Parole. The corresponding Assembly bill is A. 4231A.

New York State has the lowest percentage of first board releases than any other state in the nation. Fewer than 23% of all parole eligible prisoners are released on the first board and it is not uncommon for qualified prisoners to be denied parole every two years for decades at a time. There are many factors that have led to this result. Parole officers have traditionally been political appointments largely from previous law enforcement careers. The playbook used for decades has been to rely on references to the “instant offence”, likelihood of recidivism and “deprecation of the law”. The Fair and Timely parole Act is essentially based on the premise that prisoners serving indeterminate sentences vested their right to make parole at their first board at reaching their minim term of years, on the day of their sentencing and that only conduct from the time of initial remand and sentencing can be taken into consideration for purposes of divesting the right to parole. The nature of the crime committed has no bearing on the initial release determination. The sentencing judge knew all about the offence and had the assistance of presentencing reports and prosecutors’ recommendations as well as those of the defense. With that knowledge intact, the judge imposed minimum and maximum sentence. A parole board or correctional official does not have the right or authority to substitute their judgement for that of the sentencing judge, regardless of the political climate at the time. 

Further amend New York CPL 440.10 as follows. 

On October 25, 2021 New York State took a meaningful step in amending Criminal Procedure Law sec. 440.10 in the form of L. 2021, ch 501 amending N.Y CPL 440.10. This amendment permits the court to vacate a judgment of conviction when the issue raised upon the motion is ineffective assistance of counsel in cases in which the court would have otherwise been required to deny the motion, for example, based on procedural bars. 

The October 2021 amendment is a very good and long overdue beginning in amending the states procedurally insulated post-conviction and appellate remedies. The following are some points on further amendments which should be researched, drafted and presented to New York lawmakers.

1. A mandatory hearing where a defendant bringing on a motion makes a colorable claim of ineffective assistance of counsel or denial of conflict free counsel which directly operated on the outcome of the case. 

2. Automatic appointment of court appointed counsel for defendants unable to pay for a private attorney on first motion and subsequent related proceedings. 

3. Automatic extension of time to file direct appeal where appellant asserts the need to expand the record by filing an antecedent postconviction motion on matters dehors of the record with combined proceedings filed where necessary and proper. 

4. Addition of the general ground of in the interest of justice to set aside a conviction.

5. Provisions for Defendant to move to assign the motion to a jurist other than the trial judge who presided over the proceedings in question where defendant can make a colorable claim of judicial predisposition to preserve the conviction. 

Codify Restorative Justice practices which divert certain levels of offence from the core criminal justice system: 

Restorative justice circles and practices have become widely accepted in American jurisprudence as a preferred means to resolve certain levels of offenses without recourse to formalized police and prosecutorial action and judicial proceedings in educational institutions and on matters relating to encounters with the criminal justice system. Restorative Justice can also serve as an essential tool for diverting certain levels of conduct and offenses from school disciplinary channels and core justice system involvement. 

Restorative Justice in New York State is primarily informal mechanism with no assurances that an accused person can be immunized against the use of statements or admissions made during the RJ process if the case ends in criminal prosecution or school disciplinary proceedings. This has become especially problematic in sexual misconduct cases in colleges and universities. 

More and more states have codified the used of restorative justice practices and procedures with built in provisions for suppression of evidence and voluntary disclosures proffered by an accused person as part of the RJ process or circles. 

Attached is an annotated survey of same. It is recommended that New York State join Colorado and other states in providing statutory requirements along these lines for all but the most violent of offenses. 

Create a separate and independent Defender Authority to finance and staff qualified attorneys to represent low income people on criminal, civil and administrative matters: 

In early 2014 the Executive Chamber settled the case of Hurrell Harring v. State of New York which inter alia, challenged the constitutionality of the state’s Assigned Counsel program as a means of defending low income defendants in criminal cases. The settlement resulted in certain gains met by public defenders in terms of increased resources and staffing but by no means even approached addressing the stark imbalances existing between abundantly staffed and budgeted District Attorney’s offices and the public defense bar. The attached article makes the argument for the creation of an independently funded and administered public defense authority and sets forth specific recommendations for funding the concept. 

Amend New York’s plea bargaining system:

Ninety seven percent of all criminal accusations in the United States are adjudicated by guilty pleas, most often including significant prion time. Prosecutors control the process with judges and public defense lawyers relegated to the role of going along. The attached article surveys the origins of the problem and makes specific recommendations to amend New York State pleas bargaining statutes and mechanisms. 

Create a Commission to study and make recommendations on necessary court reforms:  

Create a task force of academics. Legal practitioners, and community advocates to propose methodologies for the appointment of attorneys from the public defense bar and not for profit advocacy communities to the state’s appellate and trial level courts. The goal would be to resolve the imbalance created by the appointment of prosecutors and former prosecutors to these critical positions. Further support pending bill to authorize a referendum to the voters of New York State for a restructure of an arcane and convoluted court system structure in favor of the creation of a single level trial courts.

Create a Statutory Independent Wrongful Conviction Bureau with Plenary Powers for de novo review and disposition of state criminal convictions: 

New York State Senators Dan Quart and Zellnor Myrie have introduced legislation which if enacted into law would permit individuals convicted by coerced plea bargaining to reopen their cases and have a fair opportunity to prove their actual innocence. Senator Quart has also introduced legislation which would compensate wrongfully convicted people and seal the criminal cases so that they can at least try to move on with their lives. Both measures reflect a genuine understanding of the issues and legislators like these Senators and the work they are doing are critical to criminal justice reform. Looking ahead and going beyond the plea bargaining, compensatory damages and expungement issues the state legislature should seriously consider creating an independent bureau or agency with plenary powers for de novo review and dispositions of wrongful criminal convictions. This should include cases where actual and factual innocence can be established as well as cases where the conviction was obtained by the People in violation of a defendant’s state or federal constitutional rights. A conviction by plea or verdict which can be proven to be not worthy of confidence should be vacated even before reaching a determination as to factual guilt or innocence. 

Amend New York Executive Law 63(3):

Recent events have called public attention to an arcane New York State supersedure law known as Executive Law 63 (2) and 63 (3).

A supersedure law is a procedural device that carefully prescribes case by case reservations of investigatory and prosecutorial powers and jurisdiction. In the case of the New York Executive Law, the statute was specifically intended to strictly circumscribe and limit the investigatory and prosecutorial powers of the State Attorney General. In fact, except for under certain conditions, the New York Attorney General lacks plenary power and jurisdiction to investigate and prosecute crimes in the State’s sixty two counties. 

In Colonial New York the Attorney General was an extension of the Crown. By most accounts there were widespread abuses of power by the King’s prosecutor and colonists were fearful and suspicious of the office. In post- revolutionary New York, as the new state’s constitutional convention convened and the legislative process commenced, state leaders and lawmakers lost no time in distributing prosecutorial powers among each of the respective counties by creating independently elected District Attorneys in each with full and exclusive plenary powers to investigate and prosecute crimes which took place within their respective geographic jurisdictions. In drafting the new state constitution and enacting Executive Law 63 the early legislators and leaders specifically limited the powers of the Attorney General to matters having to do with the conduct of state government and functions and representing the state in litigation. In years to come matters pertaining to condominiums and cooperatives, charitable foundations and some other regulatory matters were added to the Attorney General’s jurisdiction and a mid- century securities law known as the Martin Act gave wide jurisdictional reach to the Attorney General to deal with matters pertaining to securities regulation. Beyond that, Executive Law 63(2) empowers the Governor to refer a case to the Attorney General or a special prosecutor and Executive Law 63 (3) requires a referral letter to the Attorney General from the head of a state agency or department to investigate and where founded, prosecute a crime on a matter specifically within the jurisdiction of the referring department. 

New York’s prosecutorial infrastructure is unique and unlike many of the states such as neighboring Massachusetts, Connecticut, Vermont and Maine, which centralize prosecutorial power in a state’s attorney, New York specifically divests the state prosecutorial function from its chief law enforcement officer.

Up until around 2002, incumbent Attorneys General in most cases conformed to the strictures of the law and confined their jurisdiction accordingly. In January 2002 Elliot Spitzer assumed the office and devised a new jurisdictional infrastructure, based upon excessive expansions and applications of the Martin Act, which in certain cases amounted to ultra vires investigations and prosecutions. New York Courts began to elasticize the statute with decisions upholding jurisdiction even if the Attorney General self-referred or fabricated a referral letter or denying jurisdiction where a departmental referral letter came from the deputy head of the agency and not the duly appointed department head. The law became so pliable that it not only created an environment for widespread unauthorized investigations and prosecutions but also a useful tool to forego prosecutions where and when politically or otherwise expedient. New York’s Executive Law is the state’s prosecutorial Phillips screwdriver, a special purpose tool to prosecute or decline to prosecute as might be expedient at any given time. The law is overly vague and needs to be amended or replaced. The New York State Legislature needs to decide if it wants to have a centralized or localized prosecution regime in place. Either one would suffice, the existing combination however is fraught with constitutional frailties.