The New York Civil Liberties Union (“NYCLU”) respectfully submits the following testimony regarding the operations of New York City’s Summons Courts. 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 nearly 50,000 members. 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.

A key component of the NYCLU's work is to protect New Yorkers against abusive and discriminatory law enforcement practices. For more than a decade, 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 issues hundreds of thousands of summonses each year to New Yorkers for noncriminal, quality of life violations, such as riding a bicycle on a sidewalk or consuming alcohol in public. Between 2002 and 2013, NYPD issued over six million summonses, including 458,095 in 2013 alone.1 There are three main categories of summonses: Environmental Control Board (“ECB”) violations, Parking and Moving violations, and “Criminal” summonses that require an appearance in New York City Criminal Court. It is this last category in which the most problems arise and in which there is the greatest need for additional oversight.

As every New Yorker is now poignantly aware, aggressive enforcement of quality of life offenses can have tragic consequences. The death of Eric Garner, who was placed in a chokehold by an NYPD officer who suspected him of selling untaxed cigarettes, demonstrates how police-civilian encounters arising from minor offenses have the potential to escalate into situations involving the use of deadly force. Such a completely avoidable, totally senseless loss of life has dealt a severe blow to community confidence in the NYPD, particularly in communities of color.

The NYCLU presents the following testimony today in support of reforming the system for issuing and processing summonses in New York City. We encourage the Council to reconsider the City’s approach to enforcing low-level, non-criminal offenses. A wholesale reprioritization is in order if the City wants to reduce the discriminatory impact of Broken Windows policing, and its harmful effects on the lives of tens of thousands of New Yorkers. Intermediate steps should include increasing transparency, exploring alternatives to criminal court appearances, and doing more to blunt the collateral consequences associated with summonses.

I. Aggressive Enforcement of Non-Criminal Offenses has a Discriminatory Impact

Detailed information on summonses is difficult to obtain, as the only comprehensive summons database is maintained by the Office of Court Administration (“OCA”), which is not subject to Freedom of Information requests. Although the OCA issues annual reports that provide excellent general information on the number and types of summonses issued and their dispositions, noticeably lacking from this data is demographic information on summons recipients. Although OCA does record this data when it is provided, summons forms themselves no longer appear to capture information on race or ethnicity. The result has been a steady increase in the number of summonses lacking any recorded demographic information about the defendant. In 2013, 96 percent of summonses provided no information whatsoever on the race or ethnicity of the recipient.2

Nevertheless, limited official data and vast amounts of anecdotal information paint a picture of discrimination. Of the more than six million summonses issued between 2002 and 2013, the NYCLU has obtained demographic information for 1.5 million.3 Within this sample, nearly 85 percent of summons recipients were Black or Latino.4 In addition, the locus of NYPD summons operations is consistently majority Black and Latino neighborhoods. During the Bloomberg administration, 18 of the 20 neighborhoods with the highest number of summonses were neighborhoods with majority Black and Latino populations.5 As one journalist described it, “New York is a multiracial city, but judging from the faces in cramped courtrooms, one would think that whites scarcely ever commit the petty offenses that lead to the more than 500,000 summonses issued in the city every year.”6

In 2012, in an unusual written opinion in a summons case, Judge Noach Dear confronted the issue of discriminatory summons enforcement. Drawing on his own experience after years of hearing criminal cases in Brooklyn, Judge Dear remarked that he could not remember ever having arraigned a white defendant on an open container charge.7 After reviewing all adjudicated open container summonses involving Brooklyn residents in April 2012, Judge Dear found that more than 85 percent of these summonses were given to Black and Latino New Yorkers, while white recipients made up a mere four percent.8

Discriminatory enforcement is also apparent in the NYPD's handling of (formally decriminalized) marijuana offenses. Despite reports indicating that marijuana use is more prevalent among whites than people of color, Black and Latino New Yorkers comprise 86 percent of those charged with misdemeanor marijuana offenses in New York City.9 Because we lack reliable demographic data for violations, we are forced to rely on misdemeanor arrests as a proxy. Based on this, it is safe to assume that Black and Latino New Yorkers bear the brunt of enforcement for decriminalized marijuana possession.

On November 19, 2014, the NYPD announced it would issue summonses to people found in possession of 25 grams or less of marijuana in public view, a departure from the previous policy of making misdemeanor arrests. While the NYCLU welcomes this shift away from more serious contact with the criminal justice system, we are deeply concerned that the policy change merely moves the NYPD’s discrimination to a different forum. A more meaningful change would be to deemphasize enforcement of non-criminal violations across the board.

II. Summonses Carry Severe Collateral Consequences

An arrest, guilty plea, or conviction for a summons level offense generally does not result in prison time. However, summonses can cause severe disruptions to recipients’ lives that are far out of proportion to the minor nature of the infraction.

The most obvious impact of a summons is the financial burden that a guilty plea or a conviction may entail. In 2013, New York City collected nearly $8.8 million in revenue from fines and surcharges associated with summonses.10 For low income New Yorkers, paying a summons fine and related court fees can cause substantial economic hardship. A summons for riding a bicycle on the sidewalk carries a $100 penalty and $125 in court fees, while a summons for disorderly conduct can impose a fine of up to $250 in addition to $125 in fees.

While individuals charged with an open container or public urination offense may be eligible to plead guilty and pay a fine by mail, all other criminal summonses require in-person appearances at summons court. Further, any person who wishes to contest the charge or attempt to obtain an adjournment in contemplation of dismissal must appear in person to do so. Because so many arraignments are scheduled for the same time, summons recipients find themselves waiting in the courtroom for hours before their case is called. As a result, they are forced to forego a day of work or school, and families may struggle to find alternative childcare or eldercare arrangements. The loss of wages, coupled with the expense of fines and court fees can be particularly devastating to anyone living paycheck to paycheck.

Worse, although the summons charges only a minor infraction, failure to appear at summons court can result in the issuance of a bench warrant for that person’s arrest. Should that person later be stopped by the police, he or she would likely be arrested and forced to spend some time in jail, all stemming from an initial noncriminal incident. According to court records, as of February 2013, there were more than one million open bench warrants from New York City summons court, placing as many as one-in-eight New Yorkers at risk of arrest.11 As of May 2014, more than 73,000 bench warrants had been issued in conjunction with summonses issued the prior year. 12

But even more devastating, a conviction for some low-level violations can create ripple effects that impact nearly every aspect of a person’s life. Federal law allows public housing authorities to evict tenants based on any evidence of drug use, including for non-criminal possession of marijuana, and future applications for public housing will be presumptively denied if any member of the household was previously subject to a drug-related conviction.13 This places an enormous burden on New York families, and one the City can push back against by issuing fewer summonses for decriminalized marijuana offenses.

In employment, while New York’s “Ban the Box” law prohibits public employers from asking about convictions on employment applications, private sector employers in New York City are permitted to inquire about convictions.14 We recommend the City Council enact Int. 318, which will prohibit any employer from discriminating on the basis of an applicant’s criminal history.

Finally, the City’s enforcement of non-criminal marijuana laws has serious immigration consequences. Two convictions for marijuana possession, even when charged as noncriminal violations, make an immigrant automatically eligible for deportation under federal law.15 Making matters worse, immigrants with drug-related convictions are subject to mandatory detention while their deportation proceedings are underway, meaning they can be held for weeks or months away from family members before being deported.16 An NYCLU client, a Legal Permanent Resident of the Bronx, was held in a Texas detention center for months while awaiting deportation adjudication for two marijuana summonses totaling fines of $50. If we are to be a true “sanctuary city” we must do more to close this door to deportation.

III. The Volume of Summonses Creates a Dysfunctional System

The sheer volume of summonses issued each year places a tremendous strain on the courts and on the overall fairness of the proceedings. In 2013, there were 458,095 summonses issued throughout the City, with 349,585 ultimately being scheduled for in-person arraignments.17 Summons courts are characterized by long lines and significant wait times. There is no guaranteed right to counsel in summons court, and even in those cases where defendants are able to secure counsel, lawyers are so overburdened by their caseloads that their discussions with clients regarding the merits of their cases often last less than 30 seconds.18

Compounding the inconveniences caused by having to make arrangements to attend a summons court arraignment, the majority of summonses issued in Brooklyn require defendants to attend court in Manhattan.19 Whereas Queens, the Bronx, and Staten Island have their own summons courts, the summons court in Manhattan has jurisdiction over summonses issued in both Manhattan and Brooklyn, leading to further crowding and delays in the courtroom and making it even more costly and difficult for Brooklyn residents to answer a summons. While there is no public data on the question, it is likely that Brooklyn residents failing to appear in Manhattan summons court receive a disproportionate share of bench warrants.

Further evidence of a dysfunctional system arises before cases even reach the courtroom, as a significant percentage of summonses are thrown out before ever reaching adjudication. In 2013, nearly 20% of summonses were dismissed by the court for alleging insufficient evidence or containing incomplete information.20 Rather than attempting to enforce low-level violations through the issuance of improper or insufficient summonses, law enforcement resources would be better spent targeting more serious crimes.

IV. Recommendations

Below, we outline our recommendations for reforming the issuance and processing summonses in New York City and for reforming the NYPD's approach to enforcement of low-level violations.

A. The NYPD Must Shift Away from Broken Windows Policing and Make Use of Alternatives to Criminal Court Summonses

Many of the most commonly charged summons offenses can be cited and enforced outside the criminal court context. Open container violations that occur in New York City parks may be cited with a criminal court summons or with a civil notice of violation returnable to the Environmental Control Board (“ECB”).21 Depending on where the incident is alleged to occur, a summons for public urination may be returnable to either ECB or the Transit Adjudication Bureau (“TAB”), rather than criminal summons court.22 Other commonly issued summonses that can be directed to the ECB include charges for unlicensed general vendors, riding bicycles on the sidewalks, being present in New York City parks after closing hours, and disregarding lawful instructions from a park official or posted sign. 23

While TAB and ECB are far from ideal entities, directing summonses to these agencies as opposed to criminal courts would more clearly establish that these violations are not criminal offenses. Both TAB and the ECB allow summons recipients to plea and even contest charges without making an in-person appearance and failure to appear for in-person adjudication, if one is scheduled, does not result in the issuance of a bench warrant. On a broader level, the Council should consider whether the existing penalties, regardless of the venue, for these minor violations are appropriate and use its oversight authority to reduce as much as possible the NYPD’s aggressive enforcement of these offenses.

B. Eliminate Summonses in Schools

During the 2012-2013 school year, the School Safety Division of the NYPD issued more than 3 summonses per day in public schools. Nearly 60 percent of those were issued for disorderly conduct and nearly 70 percent were issued to students aged 16 to 18. By requiring young people to miss a day of school to answer a summons, the NYPD is both over-charging and under-serving New York’s students. A student who appears in court during school is up to four times more likely to drop out than his peers.24 At the same time, that student faces a judge, rather than being held accountable to his school community for misbehavior. The phenomenon of teenagers acting disorderly is a fact of life, and one that is far better addressed in an educational setting; it is not a criminal offense. We recommend the City eliminate the use of criminal court summonses against students for conduct that takes place in schools.

C. Increase Plea by Mail Options

Currently, New York City authorizes recipients of open container and public urination summonses to plead by mail and submit payment of the relevant fine without ever having to make an in-person appearance in summons court. Since the program was originally piloted in 2005, there has been a general upward trend in the number of people availing themselves of this option each year, with 20,691 people choosing to plead guilty and submit a fine by mail in 2013.25 The Criminal Court has touted the program as a way to “more efficiently manage limited staffing resources.”26

The NYCLU recommends expanding plea by mail options to cover other low-level, noncriminal offenses. 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 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. As the number of people availing themselves of these options decreases the administrative burden at the court, we expect the City to explore ways to improve the summons court experience, such as guaranteeing counsel to every defendant, and carrying over charges rather than issuing bench warrants on a first missed appearance.

D. 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 noncriminal violations.27 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.28 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 limited 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.29

The NYCLU recommends that New York State pass similar legislation mandating that officers issue only summonses or appearance tickets for violation-level offenses, with exceptions similar to those in place in the states referenced above. Violations are not crimes, and 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.

E. Pass a Data Transparency Law

While the limited data and anecdotes from advocates suggests a discriminatory pattern in the enforcement of summons offenses, the true extent of the racial disparities will remain unknown so long as the NYPD and the courts are not required to capture and disclose demographic data. New Yorkers are entitled to know the impact that police practices have on our family, friends, and community members. The NYCLU recommends that the City Council pass a data transparency law that requires the NYPD to produce an annual report on the race and age of summons recipients.

We also recommend that the Council require the NYPD to report on each instance where force is used in conjunction with the issuance of a summons. All police-civilian encounters have the potential to be flashpoints of confrontation, and as we witnessed in the Eric Garner case, enforcement of low-level offenses can lead to the needless loss of life. The Council should demand transparency on use of force in summons 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 offense should ever result in injury or death to an officer or civilian.

VI. Conclusion

We thank the Council for the opportunity to offer testimony today on the importance of reforming the summons courts and the City’s overall 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 justice system and with law enforcement personnel.

Footnotes

1Criminal Court of the City of New York, “Annual Report 2013,” July 2014. Page 33. Available at: http://www.courts.state.ny.us/COURTS/nyc/criminal/2013%20Annual%20Report... [hereinafter 2013 Report

2 Taken from data NYCLU received from the Office of Court Administration - January 2014.

3 Taken from data NYCLU received from the Office of Court Administration - January 2014.

4 Taken from data NYCLU received from the Office of Court Administration - January 2014.

5 Taken from data NYCLU received from the Office of Court Administration - January 2014.

6 Brent Staples, Inside the Warped World of Summons Court, N.Y. TIMES, June 16, 2012, available at http://www.nytimes.com/2012/06/17/opinion/sunday/inside-the-warped-world...

7 People v. Figueroa, 36 Misc.3d 605, 608 (Kings County 2012).

8 Id.

9 Drug Policy Alliance, “2010 NYC Marijuana Arrest Numbers Released: 50,383 New Yorkers Arrested for Possessing Small Amounts of Marijuana,” Feb. 10, 2011. Available at http://www.drugpolicy.org/news/2011/02/2010-nyc-marijuana-arrestnumbers-....

10 2013 Report, supra note 3 at 31.

11 Shane Kavanaugh, 1 Million Outstanding Warrants in New York City, N.Y. DAILY NEWS, Feb. 23, 2013, available at http://www.nydailynews.com/new-york/1-million-outstanding-warrantsin-nyc....

12 Kenneth P. Thompson, Will Pot Pack New York’s Courts? N.Y. TIMES, Nov. 21, 2014, available at http://nyti.ms/1yBdC4t.

13 24 C.F.R. § 960.204(a)(2)-(3).

14 N.Y. Exec. Law § 296(16); Executive Order No. 151, Consideration of Criminal Convictions In Hiring, Aug. 4, 2011 (barring City agencies from requiring prior arrest information on job applications).

15 8 U.S.C § 1227(a)(2)(B)(i).

16 8 U.S.C. § 1226(c).

17 2013 Report, supra note 3 at 33.

18 Will Pot Pack New York’s Courts? supra note 14.

19Id.

20 2013 Report, supra note 3 at 33.

21 N.Y.C. Code §10-125; N.Y.C. Charter §1049-a.c.

22 N.Y.C. Admin. Code §16-118(6), (8)-(9).

23 N.Y.C. Code §§ §19-176(b), 20-472(c)(1); 56 R.C.N.Y. § 1-03(a)(2)-(3)

24 Council of State Governments, Breaking Schools Rules: A Statewide Study of How School Discipline Relates to Students’ Success and Juvenile Justice Involvement. 2011.

25 2013 Report, supra note 3 at 36.

26Id.

27 N.Y. C.P.L. §§ 140.10, 140.25.

28 N.Y. C.P.L. § 150.20.

29 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/.

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