Represent NYC: Assemblymember O'Donnell Discusses Criminal Justice

September 1, 2019

The United States’s history has had an impact on what identity should get a talk about being targeted on their appearance and/or identity. And, with the unbalanced ratio of black to white population in prisons, would you really blame the early preparation of going out into a world where the prison system was fixed to put people like them behind bars?

Today, there are over 2 million prisoners behind bars in across the nation–the population of those locked up are bigger than some countries around the world combined. Many times, money decides your fate and other times a wrongful conviction can. Once you get in the system, it is often to get out. But, can the U.S. criminal justice system be fixed?

Represent NYC, guest-host Assemblymember of District 69, Daniel J. O’Donnell, is joined by  JoAnne Page, President & CEO of The Fortune Society ; Anthonine Pierre, Deputy Director at Brooklyn Movement Center ; and Orleny Rojas, Deputy Director at the Center for Court Innovation to discuss the criminal justice system.

Aired September 1st, 2019.


DISCLAIMER:  Please be advised that this transcription was done from an audio recording by an out of house service; therefore the accuracy of the transcript may be impacted.  If there is an issue please contact MNN

D. O'Donnell: Hello and welcome to this episode of Represent NYC on the Manhattan Neighborhood Network. I'm Daniel O'Donnell. I serve as a member of the New York State Assembly for the 69th Assembly District, which includes part of Harlem, the Upper West Side and Morningside Heights. Today we will be discussing criminal justice, the issues facing our system, and potential solutions. New York's criminal justice system has long harmed the most disadvantaged communities in our state and failed at its goals of rehabilitation. More than 70,000 people currently sit in New York City state prisons or jails.

D. O'Donnell: I served from 2006 to 2013 as the Chair of the Corrections Committee, and I assembled a panel of experts today to discuss the justice system. Joining me today are Anthonine Pierre, a spokesperson for the Communities United for Police Reform and the Deputy Director of the Brooklyn Movement Center, Orleny Rojas, Deputy Director of criminal justice programs at the Center for Court Innovation, and JoAnne Page, the CEO and President of The Fortune Society. Welcome. Thank you all for being here.

D. O'Donnell: Ms. Page, we're going to start with you. So The Fortune Society has been here for how long? And what does it do?

JoAnne Page: We started in 1967. We see about 7,000 men, women, adolescents coming out of incarceration or with criminal justice history. We do a whole range of services. And we're an advocacy organization. We advocate for true criminal justice. And everything from housing discrimination to job discrimination are some of the issues that we take on. And we have worked with you since more years than we'll confess to, fighting for some decency and some justice in our criminal justice system.

D. O'Donnell: Well, Ms. Page and I share a common history as former Legal Aid lawyers doing that work. So the first thing I want to address is the current prison population. Obviously, when I first was elected, there was a great push to repeal the Rockefeller drug laws and to get people out of the prison system. Can you tell us where we are in terms of what is the current population in the state prison system and what efforts and things we need to do to begin to reduce it?

JoAnne Page: Sure. Where we are right now is that, as you said, there are about 70,000 people incarcerated between the city and the state, and roughly 8,000, just under 8,000 are in the city jail system. So there's good news and there's bad news about the state prison system. The bad news is we're locking up way too many people. The good news is that we've come down dramatically in how many people we've locked up. We're closing prisons, and we're starting to see people who are long-termers get out at a higher rate. We also have one of the safest cities and states in the country, and we've succeeded in bringing down our incarceration rates and bringing down our crime rates. And I think that's a model for the rest of the country. But we have a long way to go.

D. O'Donnell: In the prisons, we have a great number of persons who have been there for a very long time. And could you tell us a little bit about your work to get the long-timers out, and what more can be done, perhaps passing a bill about elderly parole, in order to ensure that people who are no threat to society any longer, are not on the state's dime in our state prisons?

JoAnne Page: What we're seeing at Fortune is more and more people who have served decades, beyond where their minimum sentence was, and beyond where they pose any risk to the community. We just accepted somebody into our housing in Harlem who did over 50 years. And we're turning our prisons into geriatric facilities in ways that are massively damaging to human beings and massively damaging to taxpayers, because people who are locked up tend to show up with the health issues of people 10 years older. And so you've got people who are no risk to anybody, where it's cruel to keep them in.

JoAnne Page: But if they get released, as half of the people coming out of state prison do, to homelessness and to some of the worst shelters in the city, that's a very painful way of managing it. So we're working on several different fronts. One is to try to get people out earlier. And elder parole is a piece of that. So also is presumptive parole. Our belief is that if somebody is sentenced to an indeterminate sentence-

D. O'Donnell: Tell the viewers what an indeterminate sentence is.

JoAnne Page: Well, let me give an example. Let's say somebody gets a sentence of 15 to life, or 25 to life, for a serious crime. But that minimum sentence was set knowing everything about the person and about the crime. And if the person has handled himself or herself well while incarcerated, has been assessed as posing little risk, we believe they should be released at the minimum sentence. If that happened, we would be seeing more and more older people coming out at a point where they have served the sentence that they needed to, and where they don't pose a risk to the community.

D. O'Donnell: As you well know, most life sentences involve the death of a human. And the advocates on the other side who come to my office often tell me that part of the problem is that when a sentence of 15 to life is imposed, the defendant hears 15, but the family of the deceased person hears life. And so, how do you reconcile those two things in ensuring that justice occurs?

JoAnne Page: So I'm going to come from a place of bias. I'm a child of Holocaust survivors, and most of my family got murdered. I think that nothing brings back a loved one. Nothing brings back a loved one. And I think that there also is a point of fairness and of letting go of vengeance. And when that 15 year minimum was set, it was set because, after assessing everything, the judge believed that the person should be considered for parole at 15. And if nothing has changed, that person should be considered and taken seriously for parole at 15.

D. O'Donnell: Well, the incarceration part, the end part of the system, and your work in it is very laudatory, and has been fabulous for years and years and years. But that's not the only part of the system. The system starts with encountering with police. So let's move this on to Anthonine Pierre to talk about the police interaction. Obviously, most people's first interaction with the criminal justice system comes through the police. They need to be able to trust the police, but that can only happen if police are truly protecting and serving every community. The issues that were raised by Eric Garner's death have made clear the short comings of that trust. So the first question I would like to ask you was whether or not the firing of officer Daniel Pantaleo was justice.

A. Pierre: Yeah. I mean, what is really good about the firing of Daniel Pantaleo is that he was fired. And we begin and end there, right? Because we're talking about someone who was fired five years after the actual death of Eric Garner happened. This happened after advocates and Eric Garner's mom spent five years really pushing the mayor on this, and also hearing Mayor de Blasio really saying a lot of things about the Department of Justice and it being their responsibility to hold his NYPD officers accountable.

A. Pierre: So it's tough to call it justice for that reason. That's one reason. Another reason why it's tough to call it justice is that there are so many ... There are at least four other officers who still have not been disciplined by the NYPD, and we can't accept justice just as one person being held accountable when multiple people contributed to the death of Eric Garner.

D. O'Donnell: Well, certainly justice delayed is justice denied. Right? That's certainly ... What can you say about what, if anything, could have been done to prevent the death of Eric Garner?

A. Pierre: Absolutely. Yeah, so the mayor and the NYPD will often speak to trainings. And while trainings are important, trainings without accountability are very difficult, right? So what we have here are some officers who went to arrest Eric Garner when he was doing nothing wrong. He wasn't selling loose cigarettes. Multiple witnesses on the scene said that he had just broken up a fight in his neighborhood. Right? So when we talk about what could have prevented this, there's no training that could have prevented this. We need officers to not make false arrests and not harass people who are minding their own business, simply because they're poor and black and standing on the street.

D. O'Donnell: One of the issues that is currently pending, and I know it's because it's my bill in Albany, has to do with 50A of the Civil Rights Law, which was written in the 1970s to prevent criminal defense lawyers from getting personal information about police officers. That law has been broadly interpreted by the courts, and that prevents us from finding out information about the history of officers and their misconduct. I think I will start year six, come January, of trying to repeal 50A. Could you address that a little bit as it relates to the Eric Garner case?

A. Pierre: Absolutely. So as you mentioned, the interpretation of 50A has been very broad, particularly by the de Blasio administration, who fought through the court system to get an expansion of 50A in 2016. So what's difficult about this particular law is that, not only does it shield identity ... It shields identities, but it also shields actual disciplinary records. So it means that, for example, when Daniel Pantaleo was put on trial, it's possible that the de Blasio administration could've chosen to shield the outcome of that trial from the public. Right? And that's really hard for a family who has been fighting for five years to get someone fired, and to get some measure of accountability for the death of a loved one, to not even have any idea of what that accountability or lack of accountability may look like.

D. O'Donnell: And when you said trial, you mean administrative trial, not a criminal trial, to makes sure-

A. Pierre: Right, right, a departmental-

D. O'Donnell: A departmental-

A. Pierre: ... NYPD trial.

D. O'Donnell: ... NYPD.

A. Pierre: Yeah.

D. O'Donnell: The middle stage in this process between police interaction and incarceration are the courts. And so, it's a great pleasure I have someone here from the criminal justice programs at the Center for Court Innovation. Ms. Rojas, thank you for being here and having this conversation. Obviously, the initial interaction is with a police officer. But then an individual comes into a courtroom. And this year, my colleagues and I passed the most sweeping reforms in a generation. I was the original author of the Bail Reform Bill that ended up becoming part of the big ugly. Don't even ask what that is. Suffice to say it got done. And so it's an issue I know very well from my years at Legal Aid. But can you discuss those reforms? And how can we be handling the rights of the accused before they become convicted?

Orleny Rojas: Sure. When a person gets arrested by police, and before they go to a prison sentence or a jail sentence, the individual spends a pretty long time in both the criminal justice system and the courts. And so, in terms of the legislation and the reform, some of the things that I feel are really amazing that will be targeted is having less people even set foot in court through the issuance of the DATs. So now more-

D. O'Donnell: Which means desk appearance tickets.

Orleny Rojas: Desk appearance tickets.

D. O'Donnell: Right. And explain to us what that means.

Orleny Rojas: A desk appearance ticket is handed out to individuals who have ID or who fit a certain level of misdemeanor crimes or potential violations. And it allows the person to go home, go to the precinct, get the this ticket, and go back home, as opposed to being arrested, being brought in, in front of the judge, being held, being at risk of having bail set, and then being detained pre-trial for long periods of time. And now more misdemeanor charges, and even some low level felonies, I believe, e-felonies, will be eligible to receive desk appearance tickets instead of going through the formal process through the police.

D. O'Donnell: It doesn't mean that the case is not brought, it just means that the person is not held prior to the time that the case commences, right?

Orleny Rojas: Yes.

D. O'Donnell: So they still have to come back to court on a subsequent day to determine whether or not they've committed a crime or a violation.

Orleny Rojas: That's correct. And in the meantime, there is opportunity for the person to opt into a diversionary program where, if they do some things, such as community service or social services, in conjunction with the prosecution or with the prosecution's consent, and then if they are successful and complete the program, the prosecutors can decline to bring the case or bring the charges. And that means they avoid even coming in the door.

D. O'Donnell: So those programs are often referred to ATIs, alternatives to incarceration. And can you tell me what your organization is doing to ensure that ATIs continue to thrive in New York City? In my experience, there are some hugely successful ones. Certainly Friends of Island Academy has done a phenomenal job with the youth at Rikers Island to get them ... if they get to the Island, to make sure they don't come back to the Island. So could you explain a little bit about how ATIs work and what you're doing with them?

Orleny Rojas: Sure. So alternatives to incarceration programs at the center target individuals that are primarily charged with low-level misdemeanor. And what we do is we assess the person coming in the door. We identify what their needs are, and based on the needs, they are either paired with a social worker and do individual counseling sessions where they [inaudible 00:14:42] report and they can then be subsequently referred to services in the community, with community programs, community-based organizations.

Orleny Rojas: We also have some community service that is used as restitution or, traditionally, kind of like the person responding back to community harm. And we also have more longterm programming such as substance abuse treatment, mental health treatment, for individuals that really need more intensive services and case management and monitoring.

D. O'Donnell: So when I was a Legal Aid lawyer, sometimes people were held for up to three days, 72 hours, before they actually saw a judge. Finally a federal judge, Constance Baker Motley, took care of that. I'm very happy about, and that's how I ended up getting hired to become a Legal Aid lawyer. Can you talk more about that in terms of ensuring that people are not held for too long before they see a judge?

Orleny Rojas: Yes. And so there is the case law that came out of a proceeding that now ensures that an individual has to be seen by a judge within 24 hours of arrest. And what we do is we work with the courts and we work with Legal Aid attorneys, prosecutors, we have what we call resource coordinators in the court system, and we help the individuals, right out of arraignments, potentially get into treatment and into services. And we make sure that the services or the process that we have established does not delay the process or the person being arraigned within that period of time.

D. O'Donnell: At arraignments then, a judge makes the determination whether or not the person should go home or should stay in, possibly with cash bail. Could you talk a bit about cash bail and what that means? And what needs to be done to make it fairer?

Orleny Rojas: Yes. And that is another great thing about the legislation, the bail reform, which we will see rolling out in January 2020. Right now the Center for Court Innovation is one of three non-profits providers who runs a pilot supervision program through the mayor's office of criminal justice. And in about 2016, it rolled out citywide. We have been able to, for certain charges and certain people with certain risk levels, deflect them away from jail by targeting individuals who are at risk of having bail set. And what they do is they come into our program and we pair them up with social workers who provide check-ins and court reminders, and also help individuals with voluntary services and referrals to the community.

JoAnne Page: Fortune does the alternative to incarceration and alternative to detention work on the felony end. But I just want to underscore how important this legislation change is, as of January. When people are in detention, it changes everything. They lose their homes, they lose their jobs, their families can be broken up. And the chance that they're going to stay in jail goes up dramatically. Something like 40% of the people who are locked up at Rikers now are mentally ill. And they see themselves doing double the detention time, or double the prison or jail time, as people with similar charges who aren't mentally ill. and what we're going to see, as the result of this legislation, very simply is far, far, far fewer people being in detention. And that's a huge win.

D. O'Donnell: Ms. Pierre, if you could address this subject from the perspective of your work? Obviously, it's very confusing to members of the city and the state and the country when people who are rich and white and charged with very serious crimes, like B felonies, are walking the streets. And yet, people who are not rich and not white are kept in. Could you address that perspective, if you could?

A. Pierre: Yeah, absolutely. One of the things that you know, as a state legislator, is that Communities United for Police Reform is looking to pass a bill called the Police Stat Act. And what's powerful about this Police Stat Act that we're looking to pass at the state level is that it will require police departments to track and also release racial disparities in policing. And when we're talking about how these folks end up in detention, what we don't have data on, what we don't clearly understand is, what is the actual gap? What is the data gap? How are racial disparities actually happening throughout the state, not just in New York City? And what can we actually do, as New Yorkers, to end or close some of those racial gaps?

D. O'Donnell: When I conducted a hearing with the Parole Department, I asked for that data, and they told me they didn't collect it. And I said, "Well, what are you going to do when you get sued if you don't have the data? You're going to find the data," because the data is there. It just has to be compiled. I'm fairly confident that that data will show the racial disparities that you're talking about. But as it specifically relates to cash bail and the communities that you work in, what can you say about the disparities there?

A. Pierre: Yeah, absolutely. So cash bail obviously is a real issue for folks who may not actually have the money to pay a cash bail. And what happens is that folks are being held, often on suspicions, and they're often being held because they ... They're often being held in a way where the system is investigating whether or not they actually committed a crime. So for folks to be held before they even go before a judge, it's actually really difficult to say that someone, like for example, a Kalief Browder, should be held at Rikers without cash bail.

D. O'Donnell: Ms. Rojas, going back to my long ago history, there was a time when, when you would make an application to release your client, there was a form. The form said whether or not they could verify community ties. And that really was a question: is the family rich enough to have a landline telephone? No one has landline telephones anymore except me, but ... And if they weren't verified, it didn't mean they didn't have community ties, it just meant that there was no one who was reachable to establish that. Can you discuss the question of, how do you ensure that it's not poverty that is keeping people from having verified community ties in the court process?

Orleny Rojas: Yes. And it actually goes deeper than that because when a person, especially nowadays, comes into the system, all their property is taken and their cell phone is taken. They don't have access to that. Very few individuals are memorizing numbers. And so we saw that as a very real and significant barrier in the early days.

Orleny Rojas: And what we did in response was, as of June of this year, we no longer need to verify community ties during the arraignment process. In three and a half years of operating a supervised release program, we found that we're able to get that information. And that does not keep individuals from coming back to make the court appearances. And on top of that, we're able, in some of our programs, to provide cell phones to them while they're with us so that communication or getting access to them does not become a barrier.

D. O'Donnell: One of my frustrations when I was a defender was the age with which we would charge people with crimes. I actually represented a 13-year-old girl who was accused of murder because she defended herself in a fight. And the idea that we, as a society, would continue to allow to treat children as if they're adults is really rather offensive. One of the bills that I have would raise the age where a youthful offender is eligible up to the age of 21. Ms. Page, could you address that?

JoAnne Page: Sure. We've made a progress in the sense that we're not now treating 16 and 17-year-olds as adults, in most cases. And we and North Carolina, we're the only states in the country that did that. The next step is the bill that you're talking about. What youthful offender treatment does is seal a person's record, which means that a young person who's had trouble with the law will not have that around their neck like an albatross for the rest of their lives, hurting their ability to do everything from get a job, to get housing. So we know from brain science that 18 doesn't mean you're a grown-up, that there's a lot of growing up that still needs to happen. And you don't want to ruin the person's chance of having the life we want them to have in our own self- interest. So this is really, really important.

JoAnne Page: I think that one of the big challenges of working with young people is that the options that the young people we see at Fortune feel they have are so limited. When you talk to our young people, they expect to be dead or in prison. That's the future they see. And when you see only that future, the world looks really bleak and your outcomes are not great. What youthful offender treatment does is let kids start over again after something, so that they can begin to build a decent life. And that's in everybody's interest.

D. O'Donnell: To be clear, youthful offender adjudication is not mandatory. It's up to a judge.

JoAnne Page: Right. It's discretionary.

D. O'Donnell: So it's not saying that everybody in that circumstance is given that, but it is available. My bill would make it available to people up to 21, to allow a judge the discretion to do that.

D. O'Donnell: Ms. Page, I'm going to go back to you about prison conditions and what happens there. When I was corrections chair, four years, I visited 38 state prisons, and I came up with a bill, I made it up, creating an office of correctional ombudsman. I wish I could tell you that it was my idea. It was not. I stole it from Hawaii and liberal places like Indiana where they have them, and they're very, very effective. I did request a trip to Hawaii to check on it, and it was turned down.

D. O'Donnell: So I would like you to address whether or not we could do a better job of oversight of the conditions and the treatment of people in the prison system, and what you think of having a separate office outside of DOCS to do the investigation

JoAnne Page: First, talking about separate office, I think having a separate office is a really good idea. I also think having volunteer access to prisons is really important, because the best antiseptic is daylight. And the more daylight you have in what otherwise are closed institutions, the safer people are and the more chance they can be reintegrated into the community when they get out.

JoAnne Page: As a country, we do a pretty miserable job in how we treat people in prisons and what kind of options are given to them. And if you look outside the United States, and there are some trips going now to Germany, to Norway, to see how prisons can be run in a way that are about getting people ready to move out. We take people who are in solitary confinement and we release them into the community from that appalling and inhuman condition. We should first have fewer people in prison, but our prisons need to be rehabilitative places.

JoAnne Page: I want to switch to Rikers for a minute because the Department of Justice study said that 40% of the young people incarcerated at Rikers experienced violence while they were in there. Our prisons are violent places, our jails are violent places, and they're places that teach people the exact opposite of what it does to live successfully in community. So we lock up too many people. We do it under conditions that are not what they should be. And we hold people far, far too long.

D. O'Donnell: Ms. Pierre, what do you have to say about the conditions at Rikers and what we need to do?

A. Pierre: Yeah, absolutely. I think it's been clear, with a lot of advocacy that's been done from a lot of folks over the last couple of years, that Rikers has to be closed. I think we're in a question, in a lot of different spaces, of what's the answer? Do we have borough jails? Do we not have jails? And what feels most important is for government to really be in some clearer conversations with community about what people want to see happen next.

D. O'Donnell: Sadly, that's all the time we have today. This has been fascinating, and I want to thank every one of you for coming as we continue the conversation in New York City and Albany. Our guests, JoAnne Page, Orleny Rojas, and Anthonine Pierre, your work has helped me immensely, and I thank you for taking the time to come here to talk about our justice system.

D. O'Donnell: Thank you for tuning in to Represent NYC. I'm Daniel O'Donnell. Have a good night.

About the Program

Represent NYC

"Represent NYC" is a weekly program produced by Manhattan Neighborhood Network (MNN) that gives local elected officials the chance to update voters about the issues shaping the future of the city. The show features a rotating cast of politicians, leaders and guests discussing pressing topics like...

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