Testimony Regarding the Criminal Justice Act

Testimony Regarding the Criminal Justice Act

The New York Civil Liberties Union (“NYCLU”) respectfully submits the following testimony in support of the eight bills collectively known as the Criminal Justice Reform Act.

The NYCLU, the New York State affiliate of the American Civil Liberties Union, is a not-for-profit, nonpartisan organization with eight offices across the state and 80,000 members and supporters. The NYCLU’s mission is to defend and promote the fundamental principles, rights, and constitutional values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York.

New Yorkers’ rights to be free from discriminatory and abusive tactics in law enforcement is a core component of our mission, and we advocate for these rights through our legal, legislative, and advocacy work. The Criminal Justice Reform Act is a significant step forward in reducing the over-criminalization of minor infractions and has the potential to save hundreds of thousands of New Yorkers, especially people of color, from needlessly being pushed into the criminal justice system. While there is work to be done to truly reform the criminal justice system, we applaud the Council for its creativity and vision in moving this conversation forward.

I. The Criminal Justice Reform Act Represents a Substantial Improvement over the Current State of Summons Enforcement

A. Recognizing the Noncriminal Nature of Low-Level Offenses

For far too long, the New York Police Department (“NYPD”) has focused on aggressively enforcing low-level violations and infractions as a major element of its program of “Broken Windows” policing. To this end, the NYPD has issued hundreds of thousands of summonses each year to New Yorkers for noncriminal, quality of life violations, such as littering or consuming alcohol in public. Between 2002 and 2014, the NYPD issued nearly seven million summonses.¹ For comparison, during that same time period, there were approximately five million documented stop-and-frisk encounters. Despite the fact that most of the offenses enforced through the issuance of a summons are nonviolent, noncriminal violations, the majority of summonses still require an appearance in New York City Criminal Court. The result is that hundreds of thousands of New Yorkers are thrust into the criminal justice system each year, with only marginal—and unproven—benefits to public safety.

The Criminal Justice Reform Act recognizes that enforcing quality of life offenses through the criminal justice system should be the exception, not the rule. Put simply, public consumption of alcohol, littering, public urination, unreasonable noise, and most parks offenses are not criminal acts. No New Yorker should ever spend time in jail for carrying an open container or for being present in a park after closing hours. By removing entirely the possibility of imprisonment for these offenses, these bills mitigate some of the devastation to communities that bear the brunt of Broken Windows policing. The City Council should be commended for taking this important step.

Of the specified acts covered by these bills, civil enforcement options already exist for all but public consumption of alcohol. However, even where they exist in current law, civil enforcement options are underutilized by the NYPD. In 2014 alone, nearly 60,000 criminal court summonses were issued for littering, unreasonable noise, presence in parks after hours, and disobeying parks signs, despite the option for enforcement at OATH in each case.² T2016-4004 fills the gap in existing law by adding a civil enforcement option in open container cases, and T2016-4001 declares a legislative preference for utilizing civil enforcement, with criminal enforcement being reserved for use in limited circumstances. This preference is an important first step, but we look to the mayor and police commissioner to ensure it is fully implemented in both letter and spirit.

B. Reducing Collateral Consequences

The Criminal Justice Reform Act has the potential to minimize some of the most serious consequences of Broken Windows policing. In addition to the base fines, criminal court summonses often carry excessive associated fees and severe collateral consequences, far out of proportion to the relatively minor nature of the infractions at issue. Forty percent of summonses result in an arrest warrant being issued for a failure to appear in court.³ An arrest, guilty plea, or conviction for a summons level offense can create ripple effects that impact nearly every aspect of a person’s life, including eligibility for public housing and student financial aid, job opportunities, child custody, and immigration status.

For low income New Yorkers, the costs associated with paying a summons fine and related court fees and surcharges can cause substantial economic hardship. Because so many arraignments are scheduled for the same time, summons recipients often must devote an entire day toward answering their charge, forcing them to forego a day’s wages and to find alternative childcare or eldercare arrangements. The cumulative costs associated with making an appearance in summons court can be particularly devastating to anyone living paycheck to paycheck.

By contrast, the Office of Administrative Trials and Hearings (OATH) potentially offers more flexibility in responding to a notice of violation, including the opportunity to contest charges through hearings in person, by mail, over the phone, and online. Most importantly, a failure to appear at an OATH hearing or to pay a civil fine cannot result in the issuance of a bench warrant. This would mark enormous progress in getting New Yorkers out from under the more than one million arrest warrants currently outstanding. Standing alone, effectively eliminating new bench warrants for most summons charges would be a huge achievement.

OATH does have the ability to pursue civil judgments in the event of a default, and we must ensure that this does not become yet another trap for low income New Yorkers. To offset the economic hardship facing poor New Yorkers in the event of civil penalties that are beyond their means to pay, the NYCLU welcomes the proposal in T2016-4006 to provide for an alternative to monetary fines through the completion of community service. We hope the community service proposal is implemented with compassion, flexibility, common sense, and most importantly with the input of impacted community members. The alternative to paying a cash fine should not create its own set of Draconian consequences.

C. Improving Transparency

Data on noncriminal enforcement is nearly impossible for the public to obtain. A limited glimpse into the data, provided by the Office of Court Administration (“OCA”) indicates troubling, but not surprising, racial disparities in enforcement. Of the nearly seven million summonses issued between 2002 and 2014, the NYCLU has obtained demographic information on approximately 1.5 million summonses.⁴ Within this sample, 81 percent of summons recipients were Black or Latino.⁵

The data, however, is incomplete. Although OCA does record demographic data when it is provided, the summons forms currently in use do not capture information on race or ethnicity. In 2014, 98 percent of summonses provided no information whatsoever on the race or ethnicity of the recipient.⁶ In April 2015, as part of the Justice Reboot initiative, Mayor de Blasio announced that the NYPD would introduce new summons forms that restore data collection on the race of summons recipients.⁷ The NYCLU welcomes this crucial reform and looks forward to the updated forms being rolled out in the near future. It is imperative that the NYPD train its officers on the use of these new forms and make it clear that collection of demographic information is mandatory when issuing a summons.

The Criminal Justice Reform Act builds upon these reforms by requiring quarterly reporting on the enforcement of desk appearance tickets, criminal court summonses, and OATH notices of violation, including information on the race, gender, and age of the targets of enforcement activities. The NYCLU strongly supports these transparency measures. New Yorkers are entitled to know the impact that police practices have on our family, friends, and community members. As these reports are received, and when they invariably demonstrate stark racial discrimination, the city must take steps to eliminate the use of bias and profiling in police actions—whether a summons to appear in criminal court or OATH.

We recommend Intro. 639-A be strengthened by requiring the NYPD to report on whether a custodial arrest was made in conjunction with the issuance of a criminal court summons. Currently, police have complete discretion on whether to take a person into custody and release with a summons, or merely to issue the summons on the street. There is no data available to distinguish the number of offenses enforced through the issuance of a summons on the street versus the issuance of a summons following an arrest and a trip to the precinct. This data should be included in any reporting on summonses so that New Yorkers will have a clearer understanding of the resources being spent on summons enforcement.

These provisions could be further strengthened by requiring additional reporting by the NYPD on any instance where force is used in conjunction with the issuance of a DAT, summons, or notice of violation. The Council should demand transparency on use of force in low-level enforcement as part of a broader effort to identify and reform problematic police policies and practices. There is no reason enforcement of a low-level, nonviolent offense should ever result in injury or death to an officer or civilian.

II. Recommendations Related to Implementation

A. Development and Implementation of NYPD Guidance

T2016-4001 leaves the development of guidance for determining whether to utilize civil or criminal enforcement to the NYPD. The NYCLU welcomes the proposal to make this guidance publicly available, but we also recommend that the Department engage in an open, transparent process for developing that guidance at the outset, including through engagement with community stakeholders. For these reforms to succeed, officers must be given meaningful directives that sharply limit the use of criminal enforcement options. A decision to pursue criminal enforcement should follow clear policy criteria and should not be left solely to an individual officer’s discretion. Additionally, the NYPD must invest time and resources in properly training officers on the new procedures and commit to holding officers accountable—including through the imposition of discipline—if they ignore or deviate from the guidance.

The past few years have seen substantial reductions in the number of criminal court summonses being issued. In 2014, 373,318 summonses were given out, representing a 13 percent decrease from the previous year.⁸ It is essential to the Criminal Justice Reform Act’s success to ensure that civil enforcement does not reverse this trend. The NYPD guidance must make clear that the preference for enforcing the designated offenses through civil penalties should not be understood as making their enforcement at OATH a new priority. Police-community relationships will see little improvement if New Yorkers continue to face harassment for minor behavior, despite a change in the ultimate enforcement venue. The Council must continue to exercise its oversight authority to ensure that the NYPD’s guidance and practices are consistent with the intent of these reforms.

B. Consider Collateral Consequences when Formulating Guidance

As discussed above, even low-level, noncriminal offenses can carry potentially devastating consequences for a person’s housing, employment, or even their ability to remain in the country. While civil penalties generally carry fewer risks of such collateral consequences, the administration must proceed cautiously in evaluating all potential harms that may befall marginalized communities in civil enforcement contexts. This includes taking into account the financial consequences for New Yorkers who cannot afford to pay a civil fine or judgment and who may face adverse credit implications as a result, and any potential implications for our immigrant communities.

C. Ensuring Fairness in Community Service Alternatives

The NYCLU supports the proposal in T2016-4006 to allow low income New Yorkers to satisfy civil penalties through the performance of community service in lieu of a monetary fine. As written, however, the bill does not define community service, so we recommend that the administration engage with the public in order to determine the criteria for meeting this requirement. The NYCLU recommends a broad interpretation of community service that includes volunteering with community-based organizations and local non-profits, and takes into account an individual’s abilities, mental and physical health needs, and existing community connections. OATH must also develop an objective, transparent process, guided by written criteria, for determining whether low income New Yorkers are eligible for community service in lieu of a fine. This process must take into account not only a person’s income but also debt obligations.

It must also be noted that those persons most likely to benefit from community service in lieu of a monetary penalty are also likely to face additional economic hardship if they are forced to forego a day of work and lose wages in order to complete their service. As such, it is imperative that OATH allow for flexibility in terms of scheduling community service hours (including evening and weekend hours) so this “reform” is not deepening existing financial distress. Finally, the number of hours required to “pay off” a fine must be reasonable and not impose outsize burdens on the poorest New Yorkers.

D. Safeguarding Due Process Protections

The Criminal Justice Reform Act will likely lead to a substantial decrease in the caseload of the City’s summons courts, while necessarily dramatically expanding OATH’s operations. While the current summons court system can fairly be described as dysfunctional, there are due process protections that exist in the criminal system that are not shared in administrative tribunals like those at OATH. An 18-B lawyer is available to assist defendants fighting a criminal court summons, even if that lawyer may only have 30 seconds to review the merits of a case, whereas there is no right to counsel in a proceeding before OATH.

These bills present a unique opportunity to examine ways to improve both summons court and OATH proceedings. As the number of people sent to summons court decreases, so too do the administrative burdens on the courts. This may free up resources to allow the City to explore avenues for guaranteeing counsel to every defendant, regardless of the venue, or to establish some type of legal assistance unit within OATH to serve as a source of information or guidance for the increasing number of people who will find themselves attempting to navigate these proceedings.

III. Recommendations for Additional Reforms

The Criminal Justice Reform Act is an important step toward repairing the relationship between police and communities who feel over policed and harassed for minor behavior. However, the Council should not lose sight of the additional work that must be done to make New York City a leader in the movement to change the culture of policing and help rebuild trust between police and the communities they serve.

A. Pass the Right to Know Act While the Criminal Justice Reform Act will reduce criminal consequences for many low-level offenses and make overall enforcement patterns more transparent, the Council must also act to promote transparency and accountability during the actual interactions between the NYPD and the public. Any encounter between police and the public, regardless of the underlying reason for the interaction or the ultimate enforcement venue, has the potential to escalate. In the most extreme cases, police-civilian encounters arising from minor offenses can escalate into situations involving the use of deadly force, as was tragically the case for Eric Garner.

Pending before the Council is the Right to Know Act, a legislative package consisting of two bills, Intro. 182-A and Intro. 541, that aims to improve communication and transparency during police-civilian encounters and decrease the risks of escalation. Intro. 182-A will require NYPD officers to identify themselves at the start of a law enforcement encounter and provide an explanation as to why the encounter is taking place. Intro. 541 will require officers to obtain proof of informed consent before searching a person without legal justification. The bills are already supported by a majority of City Councilmembers and are endorsed—nearly verbatim—in the final recommendations of President Obama’s Task Force on 21st Century Policing.⁹ Together with the Criminal Justice Reform Act, the commonsense reforms in the Right to Know Act will improve the quality of policing in New York City and enhance communication and trust in police-community interactions.

B. Increase Plea by Mail Options

Currently, New York City authorizes recipients of open container and public urinations summonses to plead guilty by mail and submit payment of the relevant fine without having to make an in-person appearance in summons court. The Criminal Court has touted the program as a way to “more efficiently manage limited staffing resources.”¹⁰

While we are hopeful that the guidance that will be developed under the Criminal Justice Reform Act will lead to the vast majority of such cases being processed through OATH as opposed to the Criminal Court, the Council should consider expanding plea by mail options to cover those low-level, noncriminal offenses that continue to be enforced through a criminal court summons. This would further the court’s goals in ensuring a more efficient use of its limited resources, eliminate the inconveniences inherent in having to attend an in-person arraignment, and further reduce the number of New Yorkers who are issued bench warrants for failure to appear.

However, because the collateral consequences of a guilty plea to even a noncriminal drug-related offense can be dire, particularly in the immigration and public housing contexts, the City should continue to require in-person appearances for marijuana possession summonses to allow those charged to pursue alternative options for relief and have the opportunity to meet with counsel.

C. Encourage the State Legislature to Pass a Cite and Release Law

The Criminal Procedure Law (“CPL”) authorizes officers to arrest someone suspected of committing any offense, even violations that the legislature has deemed “noncriminal.”¹¹ The CPL further provides that, when an individual is accused of a crime other than a Class A, B, C, or D felony or certain Class E felonies, officers can choose to issue a desk appearance ticket in lieu of making an arrest and taking a suspect into custody.¹² However, this authority is entirely discretionary, and there is nothing that compels an officer to issue a summons or an appearance ticket in such circumstances.

At least four states have recognized that law enforcement resources and jail space should be reserved for those accused of more serious crimes. Ohio, Minnesota, Virginia, and Tennessee have all passed legislation mandating the use of summons instead of arrests for most misdemeanor offenses except when an arrest is necessary for medical or safety reasons, when the offender cannot produce evidence of his or her identity, when the offender refuses to sign a citation, and when the offender has previously been issued a citation and has failed to appear in court.¹³

The NYCLU recommends that New York State pass similar legislation mandating that officers issue only summonses or appearance tickets for violation-level, noncriminal offenses, with exceptions similar to those in place in the states referenced above. As the Criminal Justice Reform Act recognizes, arresting people for low-level, quality of life offenses is an inefficient use of resources, contributes to overcrowded jails, and further strains relationships between police officers and the communities they serve. The City Council should explore ways to promote this change at the state level, and work with the NYPD to establish limits on custodial arrests through policy directives.

IV. Conclusion

We thank the Council for the opportunity to offer testimony today on the importance of reforming the City’s handling of low-level offenses. We look forward to continuing to work with the Council to ensure that all New Yorkers are treated with dignity and respect in their interactions with the civil and criminal justice systems and with law enforcement personnel.

Footnotes

¹ Taken from data the NYCLU received from the Office of Court Administration

² Taken from data the NYCLU received from the Office of Court Administration

³ Taken from data the NYCLU received from the Office of Court Administration

⁴ Taken from data the NYCLU received from the Office of Court Administration

⁵ Taken from data the NYCLU received from the Office of Court Administration

⁶ Taken from data the NYCLU received from the Office of Court Administration

⁷  Press Release, Mayor de Blasio and Chief Judge Lippman Announce Justice Reboot, an Initiative to Modernize the Criminal Justice System (April 14, 2015), http://www1.nyc.gov/office-of-the-mayor/news/235-15/mayor-de-blasio-chief-judge-lippman-justice-reboot-initiative-modernize-the.

⁸ Taken from data the NYCLU received from the Office of Court Administration

⁹ President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century Policing, 27 (2015), available at http://www.cops.usdoj.gov/pdf/taskforce/TaskForce_FinalReport.pdf.

¹⁰ Criminal Court of the City of New York, “Annual Report 2013” at 38, June 2015, available at: https://www.nycourts.gov/COURTS/nyc/criminal/cc_annl_rpt_2014.pdf.

¹¹ N.Y. C.P.L. §§ 140.10, 140.25.

¹² N.Y. C.P.L. § 150.20.

¹³ National Conference of State Legislatures, Citation in Lieu of Arrest, available at http://www.ncsl.org/issues-research/justice/citation-in-lieu-of-arrest.aspx (last accessed Sept. 27, 2013). Hays County and Travis County Texas also recently enacted discretionary cite-and-release programs. See also Sean Kimmons, “Does ‘Cite-and-release’ Work? No One Knows,” SAN MARCOS MERCURY, May 5, 2010, available at http://smmercury.com/2010/05/05/ does-%E2%80%98cite-and-release%E2%80%99-work-no-one-knows/.