Febuary 14, 2017

Assembly to Deliver Comprehensive Criminal Justice Reform

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Assembly Speaker Carl Heastie today announced the Assembly's expected passage of criminal justice reform legislation to uphold the equal protection and other indelible rights afforded under the Constitution. At the Capitol news conference, the Speaker discussed several of the reform measures, including raise the age, limits on solitary confinement wrongful convictions and ban the box.

Assembly Speaker Carl Heastie joined members of the Assembly Majority today to announce plans to pass a comprehensive package of legislation addressing disparities in New York State's criminal justice system. The package includes sweeping legislation that would help ensure fair and effective prosecution, reduce recidivism and promote the success of individuals following incarceration and overall create a more equitable justice system.

"When we began this legislative session, I vowed to make criminal justice reform a top priority for the Assembly Majority," said Speaker Heastie. "This legislative package honors that commitment and offers meaningful solutions to ongoing issues that have continued to disproportionately affect poor and underprivileged New Yorkers. It is long past time we brought New York State's criminal justice laws into the 21st century."

"Treating our youth as adults in the criminal justice system has proven to be counter-productive to rehabilitation," said Assemblymember Joseph R. Lentol, chair of the Committee on Codes. "Younger people have a greater chance of turning their lives around and becoming productive members of society - that is one of the principle goals of the criminal justice system. We must also do everything in our power to ensure that trials are fair. In order for New Yorkers to trust our justice system, they cannot feel as though it is rigged against them."

Raise the Age

New York is one of only two states (New York and North Carolina) to mandate that all youth ages 16 and 17, charged with any offense, be prosecuted and sentenced in adult criminal court. For years, the Assembly Majority has recognized that treating children like adults in our criminal justice system is ineffective and often results in lifelong negative implications for those 16 and 17 year olds. In response, the Assembly will pass a measure to change these standards. The Assembly's proposal would raise the age of adult criminal responsibility from 16 to 18 years of age and prohibit the placement of anyone under the age of 18 in any adult jail or prison. This will ensure that the cases of young people charged with crime are treated in a more age-appropriate forum (A.4876, Lentol).

Most individuals under 18 would be adjudicated in Family Court. For the small portion of youth charged with certain violent crimes, a youth part will be established within criminal court, which will have judges with specialized training for effectively dealing with young individuals. The bill would also provide for conditional sealing of certain criminal convictions, raise the age of juvenile delinquency from seven to 12 (unless the charge is murder, in which case 10), and provide additional services for youths in family court.

Special Prosecutors

The package includes important legislation designed to instill confidence that our criminal justice system is impartial and fair. This bill would establish an Office of Special Investigation within the office of the New York State Attorney General to investigate when a civilian dies either in law enforcement custody or after an encounter with a law enforcement officer. The Office would be empowered to prosecute any criminal offenses by such an officer that may have led to the person's death. (A.5617, Perry). District attorneys and the police work closely together to investigate criminal acts. This bill provides for independent investigation and independent prosecution in these circumstances as a means to address what otherwise may be an inherent conflict of interest.

Under this bill, in cases involving a grand jury and the death of a civilian in police custody or after an encounter with police, the court would be required to disclose the specific legal charges and instructions on the law that were submitted to the grand jury. The court would be required to afford the prosecutor and other appropriate persons an opportunity to be heard on the matter, and would be required to redact information where the release of such information would endanger any individual.

Case Processing

In an effort to provide greater transparency in grand jury proceedings, a separate bill would allow a court to release limited grand jury information in certain high-profile cases where the grand jury does not approve charges or reduces all charges to one or more non-felony offenses.

If certain statutory criteria were met, the court would be authorized to release the specific legal charges and instructions on the law, the testimony of expert witnesses and public servants, and the testimony of civilian witnesses, redacted to protect identity information. In such a case, the court would only be permitted to release this information if the public were already aware of the proceedings, the identity of the defendant was publicly known, and there is significant public interest in disclosure (A.4877, Heastie).

The court would be required to consider these specified factors when determining whether disclosure is appropriate. The prosecution and other appropriate persons would be given an opportunity to be heard on the question of disclosure, and the court would be required to redact all or some of this information when release would jeopardize an investigation or create a threat to public safety.

This measure also would expressly authorize the presence of the judge in the grand jury room during grand jury proceedings, and would authorize the court to assign an interpreter to interpret testimony for grand jury witnesses who are not proficient in the English language.

Jim St. Germain also spoke at Speaker Heastie's news conference on criminal justice reforms. Germain is an advocate for correction programs that provide intervention, reduce recidivism and promote success for individuals following incarceration.

The Assembly Majority also intends to pass legislation that would explicitly prohibit the use of racial and ethnic profiling by law enforcement officials (A.4879, Bichotte). The bill would require every New York law enforcement agency to develop protocols for reviewing complaints of such profiling and establish measures to prevent racial and ethnic profiling in the future. Law enforcement agencies would also be required to collect and maintain data on their stops. The Division of Criminal Justice Services would issue an annual report and create a statewide public database designed to promote transparency and accountability. This measure would also allow individuals, as well as the Attorney General, to sue in court for injunctive relief and damages to address racial and ethnic profiling activities.

The package also includes legislation that would bring a modest reform to the speedy trial provisions of New York's Criminal Procedure Law (A.3055, Aubry). Under New York's statutory "speedy trial" rules, the prosecution must be "ready for trial" within six months for a felony charge or 90 days for a misdemeanor charge. This measure, known as "Kalief's Law," is named after a young man, Kalief Browder, who spent one thousand days at Rikers Island awaiting trial before the case against him was dismissed. Sadly, Kalief Browder later committed suicide.

This bill would simply allow the court, when the prosecutor claims readiness, to inquire as to whether the prosecution is, in fact, ready for trial. The bill provides that the prosecution may not claim readiness unless a proper accusatory instrument has been filed and all appropriate evidentiary disclosures have been made.

At each court appearance, the judge would make a preliminary ruling on whether the period until the next appearance is chargeable to the defense or prosecution toward the "readiness" requirement. Court congestion would not constitute a basis for further delay.

Another proposed change to the Criminal Procedure Law would promote more fair and transparent proceedings. Under current law, a prosecutor is only required to disclose evidence that will be introduced in the trial. However, evidence that is not going to be introduced in the trial but has been reviewed or analyzed may still be relevant to the defense. This modest proposal would establish the court's power to require disclosure of all evidence, whether or not it will be introduced at the trial (A.3056, Lentol). The court and prosecution would still have effective tools to limit disclosure, such as by a protective order, when needed.

The Assembly also intends to pass an amendment to the Insurance Law that would enable charitable bail organizations to provide more effective assistance to deserving indigent persons in need of such services (A.4880, Blake). Under the state's cash bail system, many New Yorkers remain in custody awaiting trial for want of relatively small sums. Since 2012, the state has formally recognized and regulated charitable bail organizations. The Assembly's proposal would reduce the application and renewal fee for these non-profit organizations, permit them to provide bail assistance in more than one county, authorize them to provide bail assistance of up to $5,000 per case, and allow the posting of bail for all Penal Law offenses, rather than only misdemeanor cases as in current law.

Sentencing Reforms & Wrongful Conviction Reforms

Another measure the Assembly will propose would help curtail the lifelong effects associated with carrying a criminal record for minor marijuana offenses. Currently, an individual charged with possession of 25 grams of marijuana or less is charged with a violation, similar to a traffic offense with no criminal record. However, should an officer request an individual empty his or her pockets or purse and observe marijuana in the contents, the officer could charge the individual with a misdemeanor offense for possessing marijuana in a public place and open to public view. In contrast, the misdemeanor offense does create a criminal record. The Assembly's proposed legislation would require that such a marijuana charge would be included among the offenses for which sealing of records is required upon conviction (A.2142, Peoples-Stokes). The bill also allows individuals convicted of this misdemeanor prior to the effective date of the bill to apply to have the record sealed.

The package includes another proposal that would allow more people to be diverted to substance use treatment by changing the language within the statute to be in alignment with terminology used in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders and including more crimes that are eligible for diversion (A.4237, Richardson). The American Psychiatric Association's manual combined the terms for the disorders "substance abuse" and "substance dependency" into one disorder, "substance use," which more fully encompasses the stages a person goes through prior to becoming fully addicted to "substances."

Currently under New York' Criminal Procedure Law, a person with no violent conviction history who is charged with a drug-related offense may be evaluated and diverted for treatment if he or she has a "substance abuse disorder." This legislation would change the language in this law from "substance abuse disorder" to "substance use disorder," to better reflect the corresponding language of the Diagnostic and Statistical Manual, 5th Ed., and assure that judges may order treatment for individuals who use alcohol or drugs to excess, even if not yet clinically shown to be addicted. The bill also expands eligibility for diversion to substance use treatment to include additional non-violent crimes, such as conspiracy to commit a qualifying drug offense, that are sometimes associated with escalating drug or alcohol use. The measure will help to promote treatment, where appropriate, to help to prevent the type of criminal behavior that is often motivated by drug and alcohol use.

The Assembly also intends to pass an important measure designed to assure the integrity of convictions and help prevent wrongful convictions. Recent studies have shown that New York State ranks second in the nation for the number of individuals exonerated of crimes for which they had been wrongfully convicted. Advances in forensic science have been made, but most criminal cases do not involve forensic analysis or the use of DNA evidence. Many, however, involve interrogations and the use of eyewitness testimony.

Nationwide research has shown that of non-DNA exonerations, misidentification and flawed interrogation procedures are among the most common causes of wrongful convictions. Subject to broad practical exceptions, this measure would require the recording of interrogations conducted in a detention facility in all investigations involving a class A-I felony or violent felony offense (A.4239, Lentol). Additionally, the bill would enact certain requirements for photographic arrays and live-lineup procedures designed to protect against suggestiveness and help assure the accuracy of eyewitness identification.


Solitary Confinement Protocol

In an effort to promote the fairest and most beneficial rehabilitative setting, the Assembly recognizes the significant need for improvements within our prison system. Among concerns is the overuse of solitary confinement. To address this issue, the Assembly plans to pass legislation that would limit the use of solitary confinement, ensure that it is used only when necessary as a last resort, and ensure that inmates spend the minimum time needed in solitary confinement to restore order and maintain institutional safety (A.1905, O'Donnell). The legislation also prohibits the use of solitary confinement for individuals under the age of 21 and for persons with mental illness or physical or developmental disabilities.

Ban the Box

The Assembly Majority also recognizes that in order to help promote rehabilitation and prevent recidivism, people need to be able to find and maintain gainful employment. The Assembly proposals will include a measure often referred to as "Ban the Box." This bill does not bar inquiry about one's criminal record. Instead, the bill is designed to assure that people who may have a past conviction are not denied all consideration whatsoever.

First, the bill does not apply when a federal or state criminal background check is required or permitted by law, or where one or more specified types of conviction is a disqualifier. Second, the bill provides that an employer may inquire about one's criminal conviction history, but must delay such inquiry until after a conditional offer of employment has been made. This would help dissuade prospective employers from discriminating in violation of existing law. The bill specifically provides that, after such lawful inquiry, a conditional offer of employment may be withdrawn where any conviction revealed bears a direct relationship to the position being offered, or where, under the circumstances, such employment would involve an unreasonable risk to property or public safety (A.2343, Aubry).

"Petty marijuana charges should not result in a criminal record that threatens your ability to be successful or even secure basic necessities like housing and employment," said Assemblymember Crystal Peoples-Stokes. "For far too long, this charge has disproportionately affected communities of color pushing equality and opportunities further out of reach for far too many New Yorkers."

"Enhancing the public's confidence in law enforcement is essential to maintaining the integrity of our criminal justice system," said Assemblymember Nick Perry, chair of the Black, Puerto Rican, Hispanic & Asian Legislative Caucus. "Having an independent prosecutor removes any potential bias between local prosecutors and the police departments with whom they work closely. The implementation of a special prosecutor by executive order is a good first step, but it is important that we have the law permanently in place."

"It's hard to believe that in the year 2017 New York State needs legislation to strengthen what the sixth amendment of the U.S. Constitution guarantees every American: the right to a speedy trial," said Assemblyman Jeffrion Aubry. "No person should be deprived of their freedom without due process. No person should sit in jail for three years before receiving a trial-this is unconscionable. And this is precisely why we need this Speedy Trial bill - to remind us of those constitutional principles and to demand that our state adheres to them. This bill would provide a more stringent and expedited process for setting trial dates in order to better ensure that no defendant waits any longer than six months for their right to a fair and speedy trial."

"In too many cases, juveniles, those with mental illness, and those with disabilities who are placed in solitary confinement face either a lifetime of irreversible psychological harm or experience such overwhelming feelings of despair and abandonment that they take their own lives," said Assemblyman Daniel O'Donnell. "With this bill, New York will now adhere to the United Nation Committee Against Torture's (UN CAT) recommendations on the use of solitary confinement, and inmates will be treated more humanely. We end a longstanding misguided policy in our state's correction system by establishing that solitary confinement is no longer a 'routine' form of punishment and that it be reserved only in emergencies to maintain institutional order and safety."

Assemblymember Michael Blake said, "So many of those who are caught in the revolving door of the criminal justice system are denied the promise of fair treatment under the law. For thousands of indigent individuals, their freedom is forfeit simply because they cannot afford to post bail or to secure an attorney. Allowing charitable organizations broader ability to provide bail assistance to indigent persons will be a strong step in the right direction and together, with all of the measures supported in this reform package, we can finally deliver a more equitable justice system. I want to thank Speaker Heastie and all my Assembly Majority colleagues for their commitment to achieving a better, more fair New York for our families and communities."

"All people deserve to be treated justly by law enforcement, regardless of race or ethnicity," said Assemblymember Rodneyse Bichotte. "Racial profiling is not only unconstitutional but it is ineffective. It unfairly and overwhelmingly targets people of color without justification and undermines the relationship between those communities and law enforcement. We must ensure all New Yorker's are treated fairly and hold law enforcement accountable in any instance when they are not."

Assemblymember Diana Richardson said, "Too many communities in this state and too many families are living under the harsh realities of an unfair justice system. Families deserve every opportunity to remain a part of each other's lives and seek the help they need to live as healthier, safer and law-abiding members of our society. It is well known that the Rockefeller Drug laws had a devastating impact on impoverished communities and particularly on individuals of color. I am very proud to sponsor legislation in this justice reform package that would expand judicial diversion so that individuals who need help to overcome substance dependency receive treatment instead of a prison sentence. I commend Speaker Carl Heastie for his leadership in making this a priority for this legislative session and I thank my colleagues for their support of these important measures."

Paige Pierce, CEO, Families Together of New York State said, "Today marks an important step in our long fought journey to reform the juvenile justice system. It is our hope that this moment in time is the one that propels us toward the finish line. While we've spent years sharing the data, science, and often detrimental consequences our current system exacts, 16 and 17 year old children have been counting on us to rescue them from the physical and emotional harm they often endure on a daily basis. Let today be noted in the history books as the day we gave those children and their families hope. Hope for the systemic reforms that will consider such youth as more than an inmate number, hope for a system that provides them with the supports and services they need to succeed and hope for a system that provides a pathway to productive citizenship."

"We applaud the New York Assembly for their continued leadership on marijuana reform," said Kassandra Frederique, New York State Director of the Drug Policy Alliance. "Sealing past illegitimate marijuana convictions is not only right, it is most urgent as the country moves toward marijuana legalization and immigrant families are put at risk under our new federal administration. Comprehensive drug law reform must include legislative and programmatic measures that account for our wrongheaded policies and invest in building healthier and safer communities, from the Bronx to Buffalo, Muslim and Christian, US-born and green card-holding."

Jonathan E. Gradess, executive director, New York State Defenders Association said, "There are responsible not-for-profit corporations all over New York State that will be encouraged by the Assembly's creative effort to reform the charitable bail statute. Its reform represents a great step forward for those unable to afford bail who are today held hostage to a cruel and onerous money bail system."

Cora Greenberg, executive director, Westchester Children's Association said, "Westchester Children's Association (WCA) is encouraged by the progress Raise the Age legislation is making in the Assembly. Treating 16 and 17 year olds as children, rather than adults, in the justice system will positively impact the lives of roughly 1,000 Westchester youth every single year. Only comprehensive reform as laid out by the "Raise the Age NY" campaign will provide our county's youth with the rehabilitative, therapeutic and educational opportunities that will help them turn their lives around. With the right supports youth are less likely to recidivate, therefore making our communities safer and giving our young people the chance for a productive, engaged future"

Brigit Hurley of The Children's Agenda said, "We applaud the Assembly for their leadership today. Research makes it clear: for the success of our youth and our communities, New York State must pass Raise the Age in 2017."

Glenn Martin, president and founder of JustLeadershipUSA said, "JustLeadershipUSA commends Speaker Heastie and members of the Assembly for addressing what poor New Yorkers of color have known for far too long - that there is a more effective way to achieve justice for defendants and victims. Over the past decade, strong leadership in the Assembly has led to progress in reducing the size of the state's jail and prison systems. However, true criminal justice reform must not only reverse mass incarceration, it must repair the harm caused to tens of thousands of New Yorkers. The introduction of these proposals is a step forward in recognizing the values of redemption, justice, and second chances."

Karen Murtagh, executive director, Prisoners' Legal Services said, "As an organization that has been at the forefront of reforming NYS's prison system for over 40 years, Prisoners' Legal Services (PLS) applauds Speaker Heastie and the NYS Assembly for their steadfast commitment to ensuring justice in New York's criminal justice system. Mandating prison oversight and accountability, eliminating the use of solitary confinement and acknowledging that juveniles should be treated differently than adults, are critical to reducing recidivism and ultimately protecting public safety."

Kate Rubin of Youth Represent said, "Youth Represent applauds the NYS Assembly for introducing a comprehensive juvenile justice reform proposal built on the pillars of science, public safety, and fairness. We urge the legislature and governor to act swiftly to pass Raise the Age legislation and protect thousands of young New Yorkers from the lifelong harms of adult prosecution and incarceration."

Gabriel Sayegh, co-executive director of the Katal Center for Health, Equity, and Justice said, "New Yorkers care about fairness and justice, but our criminal justice system is unjust, wasteful, and marked by racial bias. It's time to advance real reform. We thank Speaker Heastie and members of the Assembly for advancing meaningful criminal justice reform in New York State."