Before and After: Data on the Impact of Bail Reform

The New York State Division of Criminal Justice Services (DCJS) and John Jay College of Criminal Justice hosted the above-entitled webinar on September 21st, as noted on the John Jay Data Collaborative for Justice website. New pretrial release information was included. Supplementary tables for 2019-2021 show that in New York City, the percentage of people released overall increased from 84%-85% in early 2019 to 87%-88% in late 2021; outside NYC the increase was somewhat greater, from 70%-71% in early 2019 to 79% in late 2021.

The percentage of people released on their own recognizance (RORed) dropped in NYC from 74%-75% in 2019 to 67%-68% in 2021, but outside NYC the percentage of those RORed increased from 49%-50% in early 2019 to 61%-62% in 2021. The percentage of people released under supervision/non-monetary conditions dramatically increased. In NYC, the numbers rose from 4%-6% in 2019 to 14%-18% in 2021; outside NYC, those released under supervision/non-monetary restrictions increased from 6%-8% in early 2019 to 14%-15% in late 2021.

Those who paid bail in NYC dropped from 7% in early 2019 to 3% in late 2021; outside NYC the drop was from 13%-14% to 3%-4%. The percentage of people remanded remained nearly constant, at 1% in NYC and 6%-7% outside NYC. The percentage of cases in which bail was set dropped in NYC from 21%-22% in early to 2019 to 14%-15% in late 2021. Outside NYC, the percentage of cases in which bail was set dropped from 36%-39% in early 2019 to 17-18% in late 2022, though with substantial fluctuation during the three-year period. (Changes shown in the tables were not absolutely steady, with some variation seen throughout the quarters of the four years, but the trends noted here were noticeable.) Data was also provided on failure to appear (FTA) and rearrests. Charts providing a summary analysis of the data can be found here. Among the results: jail populations have gone back to pre-pandemic levels, and FTAs decreased in NYC while remaining stable outside NYC. The report has been discussed in, for example, an article in The Riverdale Press. While demands for rollback of bail reform have continued, editorials decrying the unreasoned attacks have appeared, e.g., here and here.

State Announces $20 Million for Pretrial Services

At the annual DCJS Symposium, Governor Hochul said the state would distribute $20 million to non-New York City counties to aid their pretrial services programs. According to a press release, the funding “will support a continuum of pretrial services, including screening and assessments, supervision, a centralized case management system, and dedicated information sharing with the court system.” Of the $20 million, over a million will go to each of Suffolk, Erie, Nassau, Monroe, Westchester, and Onondaga Counties.

NYCLU Sues Another Police Department Over Disciplinary Records, This Time in Suffolk

In late September, the New York Civil Liberties Union (NYCLU) sued the Suffolk Police Department for nondisclosure of police disciplinary records following the repeal of Civil Rights Law 50-a. According to NYCLU, Suffolk has refused to disclose records that did not result in formal discipline, and overly-redacted the records they have disclosed.

As covered in the Oct. 12, 2021, and Oct. 28, 2021, editions of News Picks, NYCLU has pending litigation across the state to increase police disciplinary transparency. In addition to Suffolk, there are similar lawsuits pending against police departments in Syracuse, Freeport, Rochester, Buffalo, Troy, and Nassau, as well as against the New York State Police.

For more on the Suffolk suit, see this article in Newsday.

Legal Aid Society Unveils Public Law Enforcement Look-Up

In other disciplinary transparency news, the Legal Aid Society’s Cop Accountability Project this month published their online Law Enforcement Lookup tool. The database is a collection of documents received from NYPD and DOC FOIL requests, CCRB records, the results of state and federal disciplinary lawsuits, and media reporting. The database is created with the public in mind but will also be of significant benefit to city practitioners. For more on the database, see this article in Gothamist.

For more on the numerous post 50-a resources available, including State Police Troop A disciplinary records (gathered by WKBW 7 News in Buffalo), see NYSDA’s Law Enforcement Disciplinary Records page.

Standards for Family Court

The Chief Administrative Judge issued an order on Sept. 28, 2022, promulgating a new section of the Uniform Rules for the Family Court. The new rule, 205.19 Financial Eligibility for Publicly Funded Counsel, is effective immediately. Its provisions include “[t]imely access to counsel,” including “prior to initiation of a proceeding which may result in detention [and] in removal of children from their care ….” In such cases, someone seeking counsel prior to the filing of a petition is to be given information on how to contact the primary provider of representation in their county.

The rule includes presumptions of eligibility, rebuttable upon compelling evidence. The presumptions include net income below 250% of Federal Poverty Guidelines; incarceration or confinement; and already-determined eligibility for public assistance or representation in other proceedings. Additional considerations include debts and obligations, and the cost of retained counsel in the jurisdiction. A list of assets not to be considered or to be considered only under certain circumstances is included; child support, needs-based public assistance, and the resources of third parties cannot be considered. The rule prescribes processes for eligibility determination, including preservation of the confidentiality of information submitted in support of the application. Reconsideration and review of denials of counsel or expenses are also addressed.

NYSDA’s Aug. 3, 2022, comments on the rule as originally proposed can be found here, on the Family Defense NYSDA Testimony and Comments webpage. Most of the proposed language has been maintained, though the confidentiality provision was strengthened somewhat, and references to denials of expenses under County Law 722-c were added. Also added was a provision regarding an award of counsel fees and expenses as a non-monied spouse, former spouse or parent for counsel of their choice under FCA 438 or DRL 237 “instead and in place of publicly funded counsel.”

There are still some details regarding implementation to be ironed out, including establishing what screening tool will be approved by the Chief Administrative Judge. See 205.19(e)(1) and determining which entities will have the primary responsibility for primary representation in pre-petition cases.

Incarceration Conditions--Suicide, Inadequate Mental Health Care, and Solitary

An article posted September 30th on City and State provides a current look at a long-standing problem: overincarceration of and lack of treatment for people with mental illness. Focused on Rikers Island, the article cites a 2022 Mayor’s Management Report showing these statistics for individuals in custody with a mental health diagnosis (% combined daily population ADP): FY2018 - 43%; FY2019 - 45%; FY2020 - 46%; FY 2021 - 53%; and FY2022 - 50%. The need to provide more mental health treatment inside, and to divert more people to treatment programs outside, is discussed, as are efforts—insufficient efforts—to provide treatment in specialized units. Of 16 reported deaths at Rikers this year, five were suicides or suspected suicides.

The problem is not limited to Rikers; as the article notes, the Bureau of Justice Statistics has reported that, nationally, “suicide was the leading single cause of death for jail inmates in 2019,” at 49 deaths per 100,000 people incarcerated. On September 20th, Statista.com posted an item addressing the U.S. “Jails Suicide Crisis,” which included a chart showing the disproportionate suicide rates in local jails. Yet, publicity about suicide prevention tends to omit discussion of people in jails or other carceral facilities. In early September—Suicide Prevention Month— Governor Hochul issued an announcement about statewide awareness-raising initiatives, including a new digital public service campaign to run through November. Apparently, no session at the three-day NYS 2022 Suicide Prevention Conference held last month included jail or prison suicide. Added coverage about Rikers and suicide can be seen here.

Public defense lawyers may become aware of clients' need for mental health services. Such need may impact clients' ability to assist in their defense and should not be overlooked. Client-centered representation includes obtaining assessments and services to address clients' needs and working with them to plan treatment during and after incarceration. The Office of Indigent Legal Services standards for Assigned Counsel Programs (ACPs) call for ACPs to “ensure that individual assigned counsel have access to the non-attorney professional services needed at every phase of the case” including mental health services. (Standard 8.5.a.) Read broadly, this would include assisting clients in obtaining services needed to attain or maintain mental health.

Meanwhile, publicity about different conditions in Rikers highlighted another ongoing issue. Just over a month ago, AMNY.com reported that a surprise visit by city politicians revealed seven people “being held in conditions that resembled solitary confinement” in violation of “the “spirit” of a 2021 state law that sought to limit solitary, known as the HALT Solitary Confinement Act ….” City corrections officers and supporters of pending City Council legislation to ban solitary in city jails confronted each other at a rally in late September, as reported by the Mott Haven Herald. Out on Long Island, a correction officers union blamed HALT for violence in the Nassau County Correctional Facility, according to a New York Post story on September 25th. On September 8th, an article in The Gothamist referred to the Rikers situation while reporting that new DCJS data shows solitary confinement remains a practice in New York State’s prisons in violation of HALT. Soon thereafter, NYfocus.com also noted the ongoing violation of HALT in state prisons; that was followed with a September 26th piece about people with disabilities being placed in solitary, contrary to HALT. Additional NYFocus.com coverage here. State corrections officers, like their jail counterparts, continue to push for HALT’s repeal, citing violence in facilities. Members of the NYS Correctional Officers and Police Benevolent Association rallied outside the Coxsackie Correctional Facility a month ago, as noted by Columbia-Greene Media. NYSDA supported passage of HALT and opposes repeal.

NIST Draft Review Finds Forensic Bitemark Analysis Not Supported by Sufficient Data

In a News Release on Oct. 11, 2022, The National Institute of Standards and Technology (NIST) issued a statement that it has “reviewed the scientific foundations of bitemark analysis, a forensic technique in which marks on the skin of a biting victim are compared with the teeth of a suspected biter. NIST has published its findings in a draft report, Bitemark Analysis: A NIST Scientific Foundation Review, which will be open for public comment for 60 days. The authors will consider all comments submitted before publishing a final version of the report.”

In the statement, they go on to explain that the “draft review finds that ‘forensic bitemark analysis lacks a sufficient scientific foundation because the three key premises of the field are not supported by the data. First, human anterior dental patterns have not been shown to be unique at the individual level. Second, those patterns are not accurately transferred to human skin consistently. Third, it has not been shown that defining characteristics of those patterns can be accurately analyzed to exclude or not exclude individuals as the source of a bitemark.’”

The news release includes information on how to submit comments through Dec. 12, 2022, as well as information about an upcoming NIST webinar about the draft report on Oct. 27, 2022. Instructions for submitting comments and registration information for the webinar are available on the NIST website.

Independence of D.C. Firearm Examiners Challenged

The Washington D.C. CityPaper published, on September 30th, “[a]n investigation into troubles at the Department of Forensic Sciences” (DFS) that highlighted the role of a lawyer at the D.C. U.S. Attorney’s Office in a two-year struggle over the DFS laboratory’s future. The article puts forward information indicating that there was more to the situation than the “prevailing narrative” that federal prosecutors led efforts to uncover big mistakes by the lab that DFS leadership tried to cover up. “[S]ome feel federal prosecutors used [the mistakes] as an opening to seize more control over evidence processing instead of earnestly working to improve D.C.’s justice system.” Thirteen years after the 2009 National Academies of Sciences report, Strengthening Forensic Science in the United States: A Path Forward, which noted at page 184 that “public forensic science laboratories should be independent of or autonomous within law enforcement agencies,” problems remain.

At the same time, new technologies confront defenders dealing with firearm and other forensic evidence. The Center for Statistics and Applications in Forensic Evidence released, in August, two new standards on firearm and toolmark analysis: a Standard for Topography Comparison Software for Toolmark Analysis and a standard on Implementation of 3D Technologies in Forensic Firearm and Toolmark Comparison Laboratories. As NYSDA builds its statewide Discovery & Forensic Support Unit to increase its assistance to defenders, we continue to provide information like that here and the items in the July 6th edition and June 14th edition of News Picks. Attorneys with forensic issues are encouraged to contact the Backup Center.

This is Invisible Disabilities Week 

Oct. 16 – 22, 2022, is Invisible Disabilities Week. “’Invisible conditions can be just as disabling as visible conditions — oftentimes more so — but they don’t get the empathy or credibility that visible conditions get’” notes one speaker and author who has personal experience, as described at everydayhealth.com. This week offers an opportunity to deal with “doubts and denial” about things that can’t be seen, helping to end stigma and feelings of isolation in those with invisible disabilities.

Association News

Welcome Caitlin Connelly to NYSDA

Caitlin Connelly is a part-time Staff Attorney in our Backup Center and brings almost a decade of experience as an appellate attorney in criminal and family appeals. She began her career at the Legal Aid Bureau of Buffalo and has since been in private practice handling appeals in the 4th Department. Prior to her work as an attorney, Caitlin was an assistant law librarian at the University at Buffalo School of Law. She earned her undergraduate degree at Georgetown University, Masters in Library Science from Simmons College, and her law degree from University at Buffalo School of Law. We are excited that Caitlin has joined our NYSDA team.

Upcoming NYSDA Training Programs

Saturday, October 29, 2022, 9:00 am – 4:15 pm: Criminal and Family Defense Update 2022

Our Criminal and Family Defense Update returns to the Rochester Institute of Technology, in-person only at the Golisano Auditorium. The presentations will include: Family Law Update with Adele Fine, Family Court Bureau Chief, Monroe County Public Defender’s Office; That’s Not Neglect That’s Poverty with Kate Falconer Woods, Attorney at Law; Making the Most of CPL § 60.12 DVSJA Sentencing Provisions with Alexandra Harrington, Associate Professor of Law and Director, Criminal Justice Advocacy Clinic, University at Buffalo School of Law, and Leigh Latimer, Supervising Attorney, Legal Aid Society Exploitation Intervention Project; and Discovery Booster Shot: An Update on Trending Issues under CPL Article 245 with Erik Teifke, Acting Monroe County Public Defender. The cost of the program is $75. Register today!

Thursday, November 3, 2022, 12:00 – 1:30 pm: Ready for Trial? The Interplay Between CPL 30.30(5) and 245.50 with Drew DuBrin, Appeals Bureau Chief, Monroe County Public Defender’s Office. There is no cost for the online program, but pre-registration is required. Register here.

Registration Will be Open Soon for More Family Court and Criminal Programs

Wednesday, November 9, 2022, 1:00 – 2:15 pm: Paternity: Consequences and Considerations with Sarah Holt, Assistant Conflict Defender, Monroe County Conflict Defender’s Office. This program will cover the fundamentals of handling a paternity case in family court, including a discussion of equitable estoppel. The program will also cover the effect establishing paternity can have on related family court cases. The program is free, but pre-registration is required.

Friday, November 18, 2022, 12:30 – 2:00 pm: The Dos and Don’ts of Family Court Appellate Practice with Amy Mulzer, Senior Staff Attorney for Law and Appeals, Family Defense Practice at Brooklyn Defender Services, and Saul Zipkin, Supervising Appellate Attorney, Family Defense Practice at The Bronx Defenders. This program will cover the basics of perfecting a family court appeal in FCA Art. 10 and 10a cases and touch on some pre-brief considerations. Topics to be covered include filing a notice of appeal, preserving your client’s right to assigned counsel for the appeal, evaluating whether to ask for injunctive relief, brief writing, issue spotting, and crafting difficult arguments related to race. The program is free but pre-registration is required.

Thursday, December 1, 2022, 12:30 – 2:00 pm: Leveraging FCA 1046 to Get in the Right Evidence (business records, hearsay, and…) with Keith Baumann, Supervising Attorney & Training Director, Family Defense Practice at The Bronx Defenders, and Allaina Sines, Attorney, Family Defense Practice at The Bronx Defenders. This program will cover tactics and techniques for leveraging the most hotly contested FCA 1046 evidentiary issues in Article 10 hearings, including business records and hearsay. There is no cost for the program, but pre-registration is required.

Thursday, December 8, 2022, 12:00 – 2:00 pm, Criminal Appeals Basics: Best Practices for Successful Appeals in Criminal Cases, with Drew DuBrin, Appeals Bureau Chief, Monroe County Public Defender’s Office and Clea Weiss, Assistant Public Defender, Monroe County Public Defender’s Office. There is no cost for the program, but pre-registration is required.