Criminal Justice Reforms Stall in a Liberal Capital: New York

August 21, 2016
Joseph Goldstein and J. David Goodman
New York Times

Utah, a state where even regular beer is considered too intoxicating, has made possession of heroin or cocaine a misdemeanor rather than a felony. Mississippi has reduced its prison population by 15 percent with new legislation.

Several states have decriminalized marijuana for recreational use. More than a half-dozen states have passed laws restricting the use of cellphone-tracking technology by the police.

Lawmakers across the country are experimenting with a range of criminal justice reforms, driven by protests, a reckoning with the effects of mass incarceration and anger over police killings. But this legislative momentum has mostly stalled in an unexpected place: New York, a state led by Democrats that outlawed the death penalty more than a decade ago and did away with the last of the Rockefeller Drug Laws, which mandated strict sentences for low-level drug offenses, in 2009.

There has been hardly any legislation under the rubric of criminal justice reform passed in Albany since the governor, Andrew M. Cuomo, a Democrat, came to office in 2011, or in New York City since the Democratic mayor, Bill de Blasio, and many members of the City Council came to office in 2014 promising to overhaul police-community interactions.

A state antishackling law passed in 2009 was expanded last year to prohibit the shackling of pregnant inmates under most circumstances. But in recent years, few laws have been passed to decriminalize behaviors, shorten prison or jail sentences, or restrict police actions. A strict medical marijuana law passed in 2014. Before that the last notable legislative action of this kind was in 2010, when the state forced theNew York Police Department to stop maintaining a database of people who had been stopped by the police but were not found to have engaged in wrongdoing.

As a growing list of police departments from Ferguson, Mo., to Baltimore are being rebuked for unconstitutional practices, some leaders in Albany and at City Hall have embraced the mantle of progressive criminal justice reform. But they have stopped short of enshrining broad change in law.

Their reluctance is, in some ways, tethered to an enduring unease about public safety in New York, particularly in New York City. Statistics show street crime at historic lows, but many people say in polls that crime is worsening. Any effort to place new limits on law enforcement or to reduce punishments could prove perilous for politicians should a spike in crime occur.

“We have to be fair to victims of crime,” State Senator Patrick Gallivan, a Republican who leads the Crime Victims, Crime and Correction Committee, said in defending the state’s unusually low age of criminal responsibility, 16. “And we need to hold people accountable.”

Though Governor Cuomo has backed raising the age to 18, the legislation has not moved forward. New York remains the only state other than North Carolina to routinely prosecute 16-year-olds as adults.

In New York City, the Police Department has successfully opposed efforts to decriminalize certain petty offenses or put legal limits on a variety of police behaviors. The Council adopted a new system for handling some minor crimes, but left the decision of when to use that system to the police. A court-ordered body-camera program, which a federal judge mandated in 2013 after finding that the police had engaged in unconstitutional street stops of black and Hispanic residents on a vast scale, has been repeatedly delayed.

“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.

New York is also home to one of the country’s most expansive statutes protecting police secrecy, a 1976 law enshrined in the state’s civil rights code, which precludes the disclosure of most details of officers’ history, including misconduct. The city has said the law is the basis for the Police Department’s practice of withholding information about officers’ misconduct on the job. No momentum exists to change the law in the Legislature.

If New York’s recent interest in legislating criminal justice reform lags that of other states, it is quite likely because New York had something of a head start. It is often cited by some advocates as a model.

The state has no death penalty. The state has slashed its prison population by some 20,000 inmates from its high point in 1999, in large part because of the repeal of the Rockefeller laws. It now has an incarceration rate well below the national average. In the last five years, 13 prisons have closed.

“We changed the paradigm long ago,” Alphonso David, the counsel to Mr. Cuomo, said. “The changes that other states are now making, we’ve already made.”

In the city, the Police Department has renounced the excesses of itsstop-and-frisk strategies and reduced the number of low-level arrests. There are far fewer people arrested on charges of begging for aMetroCard swipe or sleeping in the subway — two categories of arrests that, critics have said, criminalized poverty and homelessness.

But the course of the Police Department under Mayor de Blasio has been set almost entirely by the departing commissioner, William J. Bratton, who presents himself as a champion of reform even as he resists its imposition through law. Mr. Bratton’s leverage increased after the killing of two officers in December 2014, when Mr. de Blasio relied on him to quell a revolt among rank-and-file officers directed at the mayor.

“Commissioner Bratton does appear to be reluctant to embrace changes in policing with the enthusiasm of the mayor who appointed him,” Representative Hakeem Jeffries, a Brooklyn Democrat, said. “That conflict has played itself out over the first term of this administration and perhaps has slowed progress in the area of police reform.”

Mr. de Blasio’s come-from-behind victory in 2013 was powered by his criticism of discriminatory and heavy-handed police tactics. But a restive officers’ union and the shock of four officers killed on his watch have tempered his zeal for pushing reform legislation.

City Hall officials point to the retraining of officers and fewer arrests and police stops as the reforms Mr. de Blasio has instituted, although the decline in stop-and-frisk encounters began before his term. Those efforts, said Monica Klein, a mayoral spokeswoman, “would not have been possible if we were only focused on legislative possibilities.”

Mr. Bratton has opposed measures that would decriminalize petty offenses or place new restrictions on the police. When the Council considered a plan to criminalize police chokeholds, he and the mayor said it was unnecessary given the department’s internal rule against the practice. Proponents said that despite the rule, few officers had been seriously disciplined for using the holds.

“The N.Y.P.D. has proved historically to not follow its own rules and not hold its own officers accountable,” said Joo-Hyun Kang of the advocacy group Communities United for Police Reform.

The Council’s most ambitious bills relating to the criminal justice system in the past couple of years began as an effort to change the classification of numerous minor violations. Offenses such as drinking in public or being in a park after dark would be subject only to a fine, like a parking ticket, rather than arrest or any interaction with the criminal court system. The Council speaker, Melissa Mark-Viverito, hailed the reforms, and the mayor signed a version of them into law.

“Originally, there was a lot of resistance,” Ms. Mark-Viverito, a Democrat from East Harlem, said in an interview before the measure was adopted. “No commissioner likes to have legislation. Let’s just be real about that.”

But the new law did not actually decriminalize any minor offenses. Rather, it gave officers the discretion to treat such offenses as criminal or civil infractions.

Richard M. Aborn, the president of the Citizens Crime Commission of New York City, who enjoys a close relationship with Mr. Bratton, defended Mr. de Blasio’s focus on voluntary changes. “The issue,” he said, “has always been whether you micromanage reform or you encourage a culture of reform.”

The current dynamics in the state capital and at City Hall have meant that both Mr. de Blasio and Mr. Cuomo have done little to promote the type of legislation pushed by executives in other states, such as Connecticut. The two men have emphasized executive actions, including efforts to move 16- and 17-year-old inmates out of adult prisons and jails.

Mr. David, the governor’s counsel, said Mr. Cuomo made reforms through executive action when the Legislature had stalled. Last year, for instance, the governor appointed the state’s attorney general, Eric T. Schneiderman, as a special prosecutor to investigate killings of unarmed people by officers. And he has offered to pardon thousands of New Yorkers who committed a nonviolent crime at 16 or 17, but have led law-abiding lives in the years since.

“When one of the houses is adamantly opposed, it’s very difficult to get any resolution or compromise,” Carl E. Heastie, the speaker of the Democratic-led State Assembly, said of the State Senate, where Democrats hold a technical majority but, because several do not caucus with their colleagues, Republicans have control.

Elsewhere in the country it is often Republicans, citing the need to reduce government spending, who are providing momentum for such reforms. That dynamic is particularly striking in the South, a region known for its high rates of incarceration and frequent executions. A number of the laws aimed at reducing prison rates in recent years have been passed in the South or in states elsewhere with Republican-controlled legislatures.

Correction: August 22, 2016 
An earlier version of a picture caption with this article misstated the location of a Black Lives Matter demonstration. It was on 42nd Street, not in Union Square.

 

Topics: Right to Know Act