Chief Judge Janet DiFiore called in early June for an independent review of court policies, practices, and initiatives and the “court system’s response to issues of institutional racism,” to be led by Jeh Charles Johnson, a partner at Paul, Weiss, Rifkind, Wharton & Garrison, LLP. Johnson is Secretary of the Judicial Friends Association, a group of Black and other minority judges, which released on August 31st a comprehensive “Report to the New York State Court’s Commission on Equal Justice in the Courts.” The new “Report from the Special Adviser on Equal Justice in the New York State Courts,” issued on Oct. 1, 2020 and released on October 15th, is available here. Its nine-page executive summary states that despite past efforts, “multiple interviewees from all perspectives still complain about an under-resourced, over-burdened New York State court system, the dehumanizing effect it has on litigants, and the disparate impact of all this on people of color.” Many of the 13 recommendations outlined in the executive summary include subcategories and details. Those are expanded on in the full, 100-page report, which is said to reflect engagement with stakeholders that “included current and former judges, non-judicial personnel with the Office of Court Administration …, district attorneys, prosecutors, public defenders, private attorneys, bar associations, judges’ associations and representatives from court employee unions.”

As part of its ongoing commitment “to expose and end the overt racism and implicit biases that traumatize and re-traumatize entire communities,” NYSDA will be carefully analyzing the contents of the new report with an eye to both assisting and monitoring implementation of recommendations to overcome inequity in the courts. The full list of recommendations includes: a top-down zero tolerance policy for racial bias; promoting existing institutions like the Williams Commission and OCA Office of Diversity and Inclusion; expanding bias training, for both judicial and non-judicial personnel, that is “multidimensional,” addressing overlapping issues such as “race, class, gender, sexual orientation, immigration status, trauma and beyond, in order to ensure more relevant and nuanced discussions …”; addressing juror bias before, during, and after voir dire; adopting a social media policy for personnel that restricts use of social media for racially or culturally offensive remarks; strengthening the Inspector General process for bias complaints in several ways; reviewing proposed rule and law changes for potential bias or disparate impact; making continued progress on improving translation and interpretation services; improving relevant data collection; improving diversity and inclusion in human resources practices; enhancing trust between court officers and the community; facilitating navigation of courthouses; and ensuring implementation of the recommended changes.

In the courts and in the media, pushback against the bail reforms passed in 2019 continues. Judges are said to be imposing higher amounts for partially secured bonds than for commercial bonds or cash bail. As reported by The City on Oct. 12, 2020, partially secured bonds set in Brooklyn Criminal Court “were set at an average of 140% of the commercial bond amount and 258% of the money bail amount.” The article, “A Broken Bond: How New York Judges Are Getting Around Bail Reform,” may not be news to defense attorneys on the front lines. NYSDA’s Backup Center, in fielding requests for assistance, has been asked about the issue outside New York City.

Meanwhile, the fearmongering that led to the 2020 partial rollbacks of the 2019 reforms continues, sometimes in arenas far afield from New York courts. An article posted on Syracuse.com on Oct. 11, 2020, noted that the state’s bail reform has been made an issue in ads by the National Republican Congressional Committee in a race for the House of Representatives. In late September, CBS6albany.com floated the assertions by a district attorney and three sheriffs in the Capital Region that “massive spikes in crime” can be laid at bail reform’s door. The Schenectady Daily Gazette editorial board didn’t buy the need for full repeal of bail reform, but did call for the Legislature to hold hearings next year, followed by committee meetings, that would yield “recommendations for making the law better.” NYSDA and others are gearing up to fight repeal or further gutting of the reforms. In many states, bail and pretrial release reforms are on the agenda. Recently, the Black Public Defender Association issued a position paper recommending, among other things, the elimination of cash bail, the use of non-punitive pretrial release conditions, and the elimination of the use of risk assessment tools in pretrial release decisions.

Of course, defenders are advocating for clients’ release in individual cases under the law as it exists. They face not only resistance based on a preference for how things used to be but other systemic factors, perhaps including virtual appearances when COVID-19 concerns interrupt in-person proceedings. As the Brennan Center noted in September, citing a 2010 study, “One study of criminal bail hearings found that defendants whose hearings were conducted over video had substantially higher bond amounts set than their in-person counterparts, with increases ranging from 54 to 90 percent, depending on the offense.” [Footnote omitted.]

Defenders are encouraged to contact the Backup Center with bail issues and questions that are not resolved by the information posted on NYSDA’s Bail Reform Implementation webpage. Bail reform implementation is one of the subjects of NYSDA’s upcoming Criminal and Family Defense Update 2020 webinar on Friday, Nov. 20, 2020 (see Association News below).

Since the beginning of the pandemic, there has been increasing concern from parents and advocates alike about the effect COVID-19 has had on families caught up in the child welfare system, especially those with children in foster care. Typically, a child welfare agency is required to file a petition for termination of parental rights if the subject child has been in foster care for 15 of the most recent 22 months. To counter that, in light of the pandemic and the challenges that families faced as a result, a coalition of family court defender organizations and advocates from around the state penned a letter to Commissioner Sheila J. Poole, Office of Children and Family Services (OCFS), urging the agency to issue “formal guidance to local social service departments and foster care agencies on how ASFA [Adoption and Safe Families Act] requirements are to be applied during the COVID-19 emergency.” NYSDA followed up with its own letter to OCFS, urging the same guidance.

In response to NYSDA’s letter, Commissioner Poole forwarded to us a copy of a letter she sent to local Department of Social Services (DSS) offices on Sept. 16, 2020. In it, she urged DSS to “continue to apply a very careful and critical lens when determining whether or not to proceed with filing a TPR petition.” She also referenced a June 23, 2020, letter of guidance, issued by United States Children’s Bureau Associate Commissioner Jerry Milner, discussed in the July 1, 2020, edition of News Picks. For further questions on this or any other family court topic, please contact NYSDA Family Court Staff Attorney Kimberly Bode at Kbode@nysda.org.

A federal court has ruled that COVID-19 stimulus payments cannot be withheld from people in prison, but the deadline for seeking Cares Act payment is tight, as noted in this Detroit Free Press article. Information is available on a website established by the law firm that brought the suit -- caresactprisoncase.org. It notes: “Claim Postmark Deadline Extended to November 4, 2020.” Those with questions should review that site’s Frequently Asked Questions.

In July, the New York State Legislature passed the Driver’s License Suspension Reform Act (S5348-A/A7463-A). The bill aims to stop licenses from being suspended due to unpaid traffic tickets and non-appearances in traffic court and authorizes the use of payment plans.

As reported in both Spectrum News and CNY Central earlier this month, lawmakers are speaking up, encouraging the Governor to sign the bill. The CNY Central article includes quotes from two Senators: “Senator Rachel May said, it hits those most vulnerable the hardest, ‘the idea that you could lose your right to drive a car because you couldn't pay a fine and maybe not get to your job and make the money to pay the fine is just a ridiculous vicious circle.’ Senator Tim Kennedy, agrees and said, ‘they (those whose licenses have been suspended) have to decide whether to pay for rent or food on the table or paying a traffic debt that they can't afford.’” 

The bill has garnered wide support. For example, in March 2020, the New York Daily News ran an opinion piece by Wayne Harris and David LaBahn, entitled “Stop suspending driver’s licenses unnecessarily, New York.” Harris, a longtime member of the Rochester Police Department, is a speaker with the Law Enforcement Action Partnership. LaBahn is president and CEO of the Association of Prosecuting Attorneys.

On Oct. 14, 2020, dozens of groups called on the Governor to sign the Driver’s License Suspension Reform Act. Over sixty organizations, including public defender offices across the state and advocacy groups, joined the Driven by Justice Coalition’s letter to the Governor. In a press release issued by the Fines and Fees Justice Center, the timely legislation is discussed: “‘This bill is a major step forward on the road to ending the cruel and counterproductive criminalization of poverty in New York,’ said Ranit Patel, Equal Justice Works Fellow at The Bronx Defenders. ‘Suspending driver’s licenses because of traffic debt needlessly brings thousands of people into the criminal legal system every year and exacerbates and perpetuates racial disparities in the system. In the midst of a devastating economic crisis, low-income New Yorkers should not have to choose between their health and livelihood just because they can’t afford to pay a traffic fine.’”

In addition to signing on to the letter discussed above, NYSDA joined the Chief Defenders Association of New York and the New York State Association of Criminal Defense Lawyers to call on the Governor to sign the bill. “In 2020, Gov. Cuomo and state lawmakers made a new commitment to addressing systemic racial inequities. If the governor is serious about dismantling structural obstacles to racial equity in the laws and policies of New York, he must put his signature to this legislation.” The press release can be viewed here.

As reported by NBC New York, New York lawmakers will be submitting legislation to curb mandatory court fees they say are unfair to the poor. One Assembly bill, A11083, would abolish mandatory surcharges, which can amount to hundreds of dollars. As reported by The Chief Leader on October 5th, a companion bill “would eliminate parole and probation fees.” The article went on: “A 2019 report by City Comptroller Scott Stringer’s office found that 45 percent of state parolees have debt when they get out of jail, much of it assumed following their convictions and even during their incarceration. According to the report by the Fines and Fees Justice Center, some inmates have up to half of their commissary funds garnished to meet their fee and surcharge obligations.” 

In a recent press release, the New York Civil Liberties Union (NYCLU) announced that it, along “with pro bono counsel from Latham & Watkins LLP, Milbank LLP, Shearman & Sterling, and Kirkland & Ellis LLP, filed state Freedom of Information Law (FOIL) requests with ten police departments statewide requesting data about police misconduct with a particular attention to the appearance of patterns of race-based policing.” They “are seeking data about officer misconduct allegations, use of force and stop and question policies, detention records, enforcement actions, surveillance equipment and practices, and officer diversity. The NYCLU’s chapter offices will guide the collection of information from each department. The goal of the project is to analyze the data, and, where indicated, shed light on race-based practices, seeking law enforcement policy reforms statewide that achieve fairness, transparency, and equity.”

In Buffalo Police Benevolent Assn., Inc. v Brown (2020 NY Slip Op 20257 [Supreme Ct, Erie Co 10/9/2020]), the Court stated:

“Regardless of one’s thoughts about the wisdom of the statute, the anti-law enforcement bias of many of those who supported it, or its pernicious unintended consequences, the fact remains that it is the law of this state and it can only be set aside by a court when it clearly offends the Federal or State Constitutions. Gazing into a crystal ball to divine what municipalities and their FOIL officers might do in the absence of 50-a is not a basis for the court to overturn a statute passed by both houses of the Legislature and enacted into law by the Governor. Indeed, it is well-settled that the acts of the Legislature are entitled to a strong presumption of constitutionality and that the Petitioners bear the ultimate burden of overcoming that presumption by demonstrating the amendment’s constitutional invalidity beyond a reasonable doubt.…

What Petitioners essentially seek — a pre-emptive strike that will serve as a blanket prohibition on the release of any and all information regarding any complaint deemed ‘unsubstantiated’ — is not merely drastic remedy, it is an inappropriate one. Petitioners advance no persuasive arguments as to why the controlling statutes violate due process, equal protection or any other provision of the Federal and State Constitutions. Petitioners have thus fallen well short of demonstrating a likelihood of success on the merits of their remaining claims and prayers for relief. Accordingly Petitioners’ request for declarative relief and injunctive relief is DENIED in all respects and the TRO is vacated.”

NYSDA continues to update our Law Enforcement Resources page, and will continue to add resources to assist defenders. Please contact the Backup Center, either through our contact form, email (info@nysda.org), or voicemail (518-465-3524) if you are in need of further assistance including direct support and strategies on how to obtain police misconduct records in your cases.

On Oct. 14, 2020, Governor Cuomo signed a bill making June 19th, Juneteenth, a state public holiday. By Executive Order earlier this year, he had declared Juneteenth 2020 as a holiday for state employees. The holiday commemorates June 19, 1865, when the news of liberation came to Texas more than two years after President Abraham Lincoln’s Emancipation Proclamation took effect on Jan. 1, 1863. “This new public holiday will serve as a day to recognize the achievements of the Black community, while also providing an important opportunity for self-reflection on the systemic injustices that our society still faces today,” Cuomo said. NYSDA looks forward to joining the state community in finding meaningful ways to commemorate the day.

While the deadline for registering to vote in New York has passed, registered voters still need to make a plan for voting. Concerns and changes arising from the COVID-19 pandemic, along with other changes, mean that voting this year may offer different logistics. The Mental Health Association of New York State (MHANYS) Voter Empowerment Project provides information here. Among the menu items is “Voting and the Criminal Justice System,” which includes information on voting while on parole.

As a follow-up to information provided in the last edition of News Picks regarding information about pardons for voting purposes on the Department of Correction and Community Supervision Parolee Lookup webpage, NYSDA has learned the following. While information on the “Lookup” page is updated daily, voter pardon issuance and revocation is received only monthly (approximately the 15th of the month). Revocation of a voter pardon does not occur automatically if parole is revoked; that is a decision for the Governor, and pardon revocations would be included in the monthly report. So, information from the Lookup or even from a parole officer might not be up to date if a revocation occurred but has not yet been updated.

Denial of voting to individuals with felony convictions is the subject of The Sentencing Project’s just released quadrennial report on felony disenfranchisement in the United States, entitled “Locked Out 2020: Estimates of People Denied Voting Rights Due to a Felony Conviction.” It says that 5.17 million Americans are disenfranchised in 2020 due to a felony conviction. This year’s report also has found that among those disenfranchised is a stunning one in every 16 Black Americans. As for Latinx Americans, the Sentencing Project says that, in a conservative estimate, more than 560,000 are being denied the right to vote across the United States due to laws that deny voting rights to people with felony convictions.

The Imprint Youth and Family News last week published an article, entitled “Next Steps for Youth Justice Reforms in New York: 18- to 25-Year-Olds.” The article called for an expansion of the “raise the age” laws to include protections for young adults ages 18 to 25. The author, Michael Fitzgerald, writes, “New York City moved all 16- and 17-year-olds off the Rikers Island prison complex, for good. But young adults ages 18 through 20 stayed behind in the city’s notorious lockup – a place so reviled by human rights advocates that Britain’s Guardian newspaper once declared Rikers a ‘byword for prison brutality.’”

Cited in the Fitzgerald article is a report on the same topic, entitled “Expanding Youth Justice in New York.” The authors are Julia Davis, Director of Youth Justice & Child Welfare at the Children’s Defense Fund-New York, and Kate Rubin, Director of Policy & Strategic Initiatives at Youth Represent. They call for reforms to the criminal justice system to address the inequities that exist in the way “emerging adults” are treated in the criminal justice system. The report highlights that while this age group makes up 10 percent of the state’s population, “they represent a quarter of arrests statewide.” They point out that “[a]bout one third of these arrests are for felonies, where young people face the risk of long sentences in adult prisons and permanent criminal records.” Also highlighted is the disparity along racial divides that exists with regard to the rate at which young people are arrested. “In 2018, only 16% of youth 15 to 24 in New York were Black, but Black youth accounted for 42% of those arrested and 55% of those sentenced to prison in New York State.”

The most recent issue of NYSDA’s newsletter, the Public Defense Backup Center REPORT, is now available on the NYSDA website. NYSDA members will receive a hard copy of the issue when printing and mailing is completed. If you have any questions, please contact the Backup Center at 518-465-3524.

Friday, Oct. 23, 2020, 12:00 - 2:15 pm: Understanding the Dynamics of Domestic Violence and the DVSJA: Successfully Representing Survivors

This free program is designed for attorneys engaged in new cases and resentencing cases involving domestic violence survivor-clients that may be subject to the Domestic Violence Survivors Justice Act (DVSJA) with particular focus on the dynamics of domestic violence. The brochure and registration information can be found here. Registration deadline: Wednesday, October 21st.

For more information on these and other NYSDA trainings, or if you need assistance with registration, please contact Megan (Meegan) O’Toole at training@nysda.org.