On February 18, 2021, CDANY sent a memo to the New York State Legislature in opposition to permanent virtual arraignments. Please see the memo below and available via PDF here. 

CDANY MEMORANDUM IN OPPOSITION TO
PERMANENT VIRTUAL ARRAIGNMENTS

Arraignments commence a criminal proceeding, making them one of the most important court appearances in a criminal case. Persons accused are notified of the substance of charges, enter a not guilty plea, are notified of orders of protection or loss of licensing privileges, and can face potential pre-conviction incarceration. In New York, arraignments have always been live appearances, in Court, with arraigning judges being required to assign counsel. The Hurrell-Harring settlement and statewide expansion provide funding for required in-person counsel at arraignment.

The Governor’s Executive Budget correctly points out that, under his leadership, New York Courts were able to quickly and successfully pivot to conducting arraignments in a virtual setting during the court system shutdown necessitated by the COVID crisis. This was a necessary step during a time of an unprecedented health crisis. Unfortunately, the Governor has also stated his intention to render essential in-person arraignments obsolete.

CDANY is calling on the legislature to protect the integrity of the judicial system by requiring that live arraignments return when courts are reopened.

Virtual arraignments deprive the accused of effective assistance of counsel. The personal appearance of counsel is necessary to develop an attorney-client relationship, to foster trust, and to privately obtain information necessary to enable zealous advocacy. Much critical communication is lost when using screens.

Empirical evidence demonstrates that virtual arraignments lead to worse outcomes for the accused. The virtual system proposed by Governor Cuomo was already tried in Cook County, Illinois, where an ill-fated televised arraignment protocol was implemented in 1999. A lawsuit ensued, alleging that the system was unconstitutional and denied arrestees both due process and effective counsel. Bail outcomes of virtual arraignments were studied as part of the lawsuit, revealing that bail was a staggering 51% higher than it had been before the televised system was implemented. Plaintiff’s counsel largely attributed the disparity to the inherent dehumanization of those appearing as defendants in a virtual setting.

Virtual arraignments devalue the Constitution and the integrity of the Court process. Chief Judge DiFiore affirmed that virtual arraignments were a temporary, emergency measure, as the law requires arraignments be conducted in person. Clients are constitutionally entitled to private, privileged conversations with counsel before and during court proceedings, which is not feasible in a virtual setting. A judge’s ability to gauge a defendant’s mental status and understanding of legal proceedings is also impeded. Also, virtual appearances lack necessary formality and decorum by their very nature.

Virtual arraignments exacerbate the divide between the rich and the poor, creating a Tale of Two Justice Systems: Poor people are far less likely to have access to the resources necessary to make virtual appearances adequate. Poor rural New Yorkers often do not have access to internet at all, and clients living in areas where internet is available may not be able to afford it. Many indigent clients do not have computers or smartphones. With a virtual system in place, a poverty divide is evident in the provision of legal representation--poor clients are more likely to have counsel assigned, and may be unable to meet their attorney until arraignment, whereas people with resources to retain can meet with attorneys beforehand. Therefore, rich clients are afforded attorney-client privilege and better informed advocacy, while poor individuals have impersonal representation, hampered by lack of time and proximity.

Virtual arraignments are less efficient. Pre-COVID, many individuals could be arraigned consecutively, in a single docket. Clients were interviewed privately prior to appearance, counsel assigned, cases heard by judges, and paperwork served and processed. In the virtual system, attorneys must wait for phone lines or virtual rooms to open before speaking to clients. Often, links do not work, or are sent incorrectly or to the wrong person. Internet connections fail, and programs crash. When multiple people speak simultaneously, speakers cannot be heard, making the record inaudible for court reporters and interpreters. Paperwork must be emailed, causing delay and issues with data storage. Clients cannot sign or be served orders of protection. This has culminated in arraignment calendars taking far longer per case than under old systems. The issue is even more pronounced in counties with Centralized Arraignment Parts in their jails, where deputy sheriffs are forced to act as IT professionals, court clerks, and courtroom security. During the COVID shutdown, there have been far fewer cases requiring arraignment; once courts are fully open, a virtual arraignment system would lead to increasingly bottlenecked calendars.

Virtual arraignments deprive the public of access to the Courts. The Public cannot walk in to a virtual courtroom, and links have to be carefully shared to avoid internet trolls. This results in family and friends being unable to attend arraignments to vouch that their loved one has a place to live, or will be supervised if released.

It is impossible to prevent recording of virtual proceedings. It is currently illegal to record court proceedings without a court order. This is simply impossible to police in the digital sphere, and could lead to permanent recordings on social media and elsewhere on the internet.

Albany, NY – The Chief Defenders Association of New York (CDANY) today commended state lawmakers and Governor Cuomo for approving legislation that would remove from the penal code a provision related to prostitution that has been routinely enforced in a manner that is discriminatory and without legal justification. (S1351/Hoylman; A3355/Paulin).

Laurette Mulry, president of CDANY said: “This bill would end the use of the penal code (Section 240.37) as a pretext for profiling and prosecuting women of color -- transgender women, in particular. In striking this provision from the law, the legislature serves justice and fairness.”

Penal Law Section 240.37 prohibits loitering for the purpose of engaging in a prostitution offense. Historically, this law has been used to arrest people for a range of lawful conduct, such as “repeatedly” waving at a person in a vehicle, wearing a skirt that a police officer deemed too short, or merely speaking with someone on the street. The overwhelming majority of those arrested for the offense have been women – most often women of color and transgender women.

Enforcement of the statute has led to intrusive searches of those targeted by its enforcement – a patently unconstitutional practice that has resulted in degrading and dehumanizing women of color, transgender women, non-binary people of color, and the trafficking victims these laws are meant to protect.

CDANY was created by a group of leaders of public defense organizations from across New York State. The organization advocates for those who administer mandated legal representation programs, as well as their staff and their clients, in an effort to bring positive change to the criminal justice system. CDANY called for repeal of the so-called “Walking While Trans” offense in its legislative reform agenda for 2021.

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Defender groups call on governor to sign

the Driver’s License Suspension Reform Act

A7463-B/S5348-B

The New York State Legislature has approved legislation that would prohibit the practice of suspending a driver’s license for failure to pay a fine or appear at a traffic court hearing.

The legislature rightly concluded that this policy is unjust, irrational, and racially discriminatory in its enforcement.

It is incumbent upon the governor to sign the bill into law.

People who have the money to pay a traffic fine will do so. Most people who fail to pay a fine or who do not appear at a hearing are not scofflaws, they simply cannot afford to pay the fine or to miss a day’s work in order to appear in traffic court. Suspending their driver’s license serves no public interest; this policy only increases financial pressure on the economically vulnerable.
The bill does not absolve from responsibility those who have been fined for violating a traffic rule, but simply allows terms of payment that are fair and reasonable.

Seventy-five percent of people whose license has been suspended continue to drive – out of necessity, in order to get to work or to meet the needs of family members. This legislation allows people to resolve a traffic infraction without putting at risk their employment or the well-being of family members – and without exposing themselves to further legal jeopardy by driving without a license.

Finally, this legislation speaks to an issue of racial and economic justice. Violations of the Vehicle and Traffic Law are enforced disproportionately against people of color. The financial impact of a traffic fine and the adverse consequences of losing a driver’s license are borne disproportionately by persons of color with limited financial resources.

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.

CDANY Condemns the Killing of Daniel Prude and
Continues to Advocate for Actual Justice in our Justice System

On Friday, September 4, 2020, the Chief Defenders Association of New York (CDANY) issued the following statement on the Killing of Daniel Prude:

“George Floyd. Breonna Taylor. Antiana Jefferson. Aura Rosser. Stephon Clark. Botham Jean. Many, many others.

And now Daniel Prude.

Once again, a Black person has been killed by a police officer. Once again, our “justice” system failed to ensure that those responsible face repercussions for the death of Mr. Prude and that the other police officers present face consequences for both their dehumanizing treatment of Mr. Prude, and their failure to intervene on his behalf. Daniel Prude needed help – instead of receiving help he was handcuffed, mocked, forced to wear a spithood, and forced to lie face-down on the freezing ground. While helpless, he was asphyxiated by police officers.

Like many others across our country, our members watched the video of the senseless killing of Daniel Prude at the hands of the Rochester Police Department with shock and horror, but sadly not with surprise. The members of CDANY are all too familiar with these brutal acts executed in the name of law enforcement against people of color in our community, and we knew we would be here again. We offer both our deepest condolences to the family of Daniel Prude, and a promise that we will continue to say his name as we advocate for justice for people of color in the justice system, work to end the practice of arresting those in mental health crisis, and stand with those in our community who are advocating for change.”

The New York State budget for fiscal year 2020-2021 includes provisions that compromise criminal justice reform legislation adopted in 2019.  The Chief Defenders Association of New York issued the following statement regarding those budget measures that address state law governing bail practice and criminal discovery.

In 2019 lawmakers approved landmark criminal justice reforms that limited the state’s ability to jail people on the basis of an unproven allegation before adjudication of the charges against them; and required prosecutors to provide the accused, in a timely manner, all the evidence on which allegations of wrongdoing are based.  These reforms were decades overdue.  New York law governing bail and discovery were among the most harsh and unfair in the nation.

The 2019 reforms were based on principles of fairness and justice, and on the emerging body of criminal justice scholarship that demonstrates the grave harm caused to individuals, families and communities by overzealous policing and prosecution, which disproportionately targets those living in low-income communities of color. 

The 2020/2021 budget violates those principles.  The amendments to the criminal justice law will increase the numbers of individuals subject to pre-trial detention and will encourage prosecutors to evade their obligation to disclose evidence to those accused of a crime.

These budget measures are not based on principle or common sense, but rather on election-year maneuvering in service of a false narrative. This politicization of criminal justice reform will increase the public health risks created by the coronavirus pandemic. While local courts, defenders, prosecutors, police, mayors and corrections officials are working tirelessly to further reduce the jail population,  the amendments to the bail law encourage incarceration rather than decarceration, at a time when cases are unable to proceed due to closed courts.  

But for aggressive, principled advocacy, both inside and outside the Capitol building, the rollback of the 2019 reforms of the bail and discovery laws could have been more extensive. 

The movement to promote systemic criminal justice reform will not be derailed.  This effort is led by a committed, well informed community of social justice advocates, criminal justice lawyers and scholars, and public health experts. There are progressive allies in government who recognize that social justice requires comprehensive criminal justice reform. 

The Chief Defenders Association of New York is a member of this community; the CDANY’s members are committed to advancing criminal justice law and policy that protects the constitutional rights and the health, safety and well-being of everyone in New York State.

On April 1, CDANY joined with NYSACDL & NYSDA to issue the following statement regarding the last-minute Bail Proposal for the New York State Budget:

NYS DEFENDER ORGANIZATIONS OPPOSE UNCONSTITUTIONAL & DEEPLY FLAWED BAIL PROPOSAL WITH PRE-EMPTIVE JAILING BASED ON PREDICTIONS OF “DANGEROUSNESS” PROPOSAL

(Albany, NY) -- Today,  the three statewide defender organizations, the Chief Defenders Association of New York (CDANY), the New York State Association of Criminal Defense Attorneys (NYSACDL), and the New York State Defenders Association (NYSDA), released the following statement in response to revelations of a bail bill proposed by Governor Andrew Cuomo and the New York State Senate:

“The governor’s proposal represents a radical departure from constitutional principles, sound public policy, and common sense. This bill would authorize a judge to jail a person on unproven charges based solely on speculation that person may be arrested in the future. The bill would dramatically increase the numbers of people held in jail prior to the adjudication of charges. 

The bill is not merely a repeal of the bail reform laws the legislature approved in 2019, which have already significantly reduced the pre-trial jail population for low-level offenses. The governor’s proposal would reverse course and, instead, increase pre-trial incarceration rates and exacerbate the racial disparities that existed prior to the reforms. 

The governor’s proposal will expand the number of people held in jails and prisons even as the coronavirus pandemic places those individuals at heightened risk of illness and death.  To introduce this measure during a public health crisis is unconscionable.  We are counting on members of the legislature who believe in justice and fairness to stop this bill from becoming law.”

 

BACKGROUND:

The Governor and Senate’s proposal would:

Replace cash bail with indefinite preventative detention (remand) with no possibility of release for most people, including people charged with misdemeanors, based on flight risk or a so-called “dangerousness” assessment

• The bill repeals cash bail but greatly increases detention.  Individuals who are remanded have no avenue for release as the due process provisions are eviscerated.

Creates new standard for pretrial detention based on a so-called “dangerousness” assessment

• The bill broadens the standard for detention: “the least restrictive conditions that will reasonably assure the principal’s return to court or prevent the principal from committing a crime involving serious physical injury to another person based on the facts of the instant case.”
• This language authorized judges to predict the future which inevitably invites implicit bias into our pretrial system: It allows judges to guess future “dangerousness.”  This will undoubtedly lead to more racial disparities in our system.
• This bill would eviscerate the presumption of innocence and will greatly increase the number of presumptively innocent people who are subject to pretrial detention.

 

Dramatically expands pretrial detention eligibility

• This bill greatly expands the eligibility for indefinite preventative detention to include many more charges that are currently not bail eligible.  This will increase pretrial detention rates across the State.

Allows remand in misdemeanor cases for the first time in New York’s history

• The bill appears to create a new detention eligibility category for an undefined group of so-called “persistent offenders.”  A person can become eligible for remand whenever they are released pre-trial  on a class A misdemeanor involving alleged “harm to an identifiable person or property” and are arrested for a new alleged class A misdemeanor involving “harm to an identifiable person or property”.  This provision is particularly problematic as it is subject to broad and unfettered interpretation.  As we have seen in our state and in other states, this kind of authority results in indefinite pre-trial jailing for a broad category of people, especially those who suffer from mental illness, as well as others  who are targeted by law enforcement.  Again, this will result in mass incarceration of people of color.
• Such a provision is even more regressive than our past bail laws; it would make huge numbers of people charged with misdemeanors subject to remand for the first time ever.

 

Violates due process for people facing remand

• Prosecutors can move to detain people at arraignment pending a detention hearing without even a probable cause finding.
• Judges can pre-determine guilt by evaluating the “weight of the evidence”.  This provision flouts the presumption of innocence.
• The defense is entitled to one subsequent hearing requesting release.  After that, there must be a “substantial change in circumstances.”  This provision, again, is regressive and curtails opportunities for review of arbitrary detention decisions.

 

On March 31, 2020, CDANY sent this memo to the New York State Senate & Assembly urging them to leave New York's Bail Laws intact. View PDF here.

CDANY's 2020 Membership information is now available! We have changed our dues structure to reflect the budget sizes of New York State's indigent defense organizations. Please join us for 2020 and be a part of the important work CDANY does!

See more information here: https://cdany.wildapricot.org/Membership

STATEMENT FROM N. SCOTT BANKS, ATTORNEY-IN-CHIEF OF THE LEGAL AID SOCIETY OF NASSAU COUNTY, ON ATTACKS AGAINST BAIL REFORM

(Albany, NY) - N. Scott Banks, Attorney-in-Chief of the Legal Aid Society of Nassau County, responded to attacks on the new bail law with the following statement:

“New York State has taken critical steps to reform our bail and discovery laws, making the criminal justice system fairer and more transparent, promoting community safety and saving taxpayers’ money in the future through reduced pre-trial detention. Far from radical, these reforms will simply grant defendants in poverty the same presumption of innocence that their wealthier counterparts always had and bring our evidence-sharing practices in line with the rest of the country. Tragically, naysayers like certain District Attorneys, who for decades rejected all pre-trial reform, continue to do everything in their power to subvert the will of lawmakers and the majority of New Yorkers in enacting these important changes. I urge them not to undermine the success of these important reforms and the confidence of the public in our system of criminal justice.”

Background:

New Yorkers across the state are regularly jailed pretrial due to poverty. This injustice is more common upstate and in other parts of New York State outside New York City. In 2018, bail was set in 42% of non-NYC cases and 25% of NYC cases. A total of approximately 15,000 people across the state are currently jailed pre-trial, or 59% of the total jail population. Statistics show that pre-trial detention negatively impacts public safety, denies equal justice, and wastes taxpayer funds.

Community Safety: Studies show that brief periods in pretrial detention can actually increase the likelihood that a person will be rearrested, likely because they worsen the root drivers of harm and crime: poverty, trauma, housing instability, unmet mental health and health needs and untreated substance use disorder. Decades of data and experience show us that decarceration can come with improved public safety.

Distortion of Justice: Statistics show that pre-trial detention distorts justice and contributes to mass incarceration by empowering the prosecutors to coerce guilty pleas, regardless of guilt or innocence. A summary of analyses included in a 2015 report by the VERA Institute of Justice found defendants jailed before trial were far more likely to accept harsher plea deals and receive prison or jail sentences. Of all those who receive prison and jail sentences, people who were incarcerated pre-trial received sentences that were, on average, two to three times longerthan those who were released pending trial. The Bureau of Justice Assistance, a division of the U.S. Department of Justice, has found that “[t]hose who are taken into custody are more likely to accept a plea and are less likely to have their charges dropped.”

Costs of Pretrial Incarceration in Nassau County: It is not only more harmful, but also more expensive to incarcerate people than to provide services to meet their needs. According to data obtained by the Vera Institute of Justice, the average cost of incarceration in Nassau per day per person is $418. This is funding that could instead be allocated to housing, economic development, education or healthcare.

A Large Majority of People in Nassau County’s Jail are Presumed Innocent: In 2018, an average of 816 out of 1094 people in at Nassau County C.F., or 75%, were detained pre-trial and legally innocent. Most were detained on bail set in an amount they could not afford.

Appearance Rates: Data from charitable bail funds across the state also demonstrates that bail is not necessary to ensure that people released pretrial return to court. Roughly 95% of the people whose bail was paid by a community bail fund — from Kings to Columbia to Suffolk to Tompkins and Onondaga counties — returned for all of their court dates, despite having no financial “skin in the game.” The Brooklyn Community Bail Fund paid bail for nearly 5,000 people who would otherwise have been jailed for their poverty and, in many cases, coerced to plead guilty, regardless of guilt or innocence, just to get free. Instead, they were free to fight their cases while at liberty. BCBF clients were three times as likely to have favorable case outcomes. That means fewer lives and families derailed by incarceration and criminal records. That means far greater chances at positive outcomes in education, employment, housing, and health. This is achieved through support, not punitive measures. Bail funds provide court reminders and help connect people to needed social services.

Harm of Incarceration: Pretrial jailing imposes a wide range of devastating costs on New York’s families and communities. These costs begin with the need to post bail or pay for someone’s release from jail after their arrest. When they cannot afford bail, it costs families to stay in contact with their loved ones as they have to pay exorbitant rates for phone calls and transportation to visit. On top of these direct costs, families lose income, child support, and other financial contributions when a wage-earner is incarcerated. Finally, incarceration also takes a toll on family members’ physical and mental health, education outcomes, and other measures of well-being. Even one day in jail can totally derail a person’s life. They can lose their jobs and housing. The state may take their children away.

Jail conditions pose a serious, and too often deadly, threat to incarcerated people. The New York State Commission of Correction found that in six different deaths across five different New York county jails, there were “egregious lapses in medical care.” Perhaps the best known story of the trauma caused by pretrial jailing is that of Kalief Browder, who took his own life after being jailed for three years as an innocent teenager on Rikers Island. Six people died Nassau County’s jail in 2016 alone. There is an epidemic of jail deathsin Broome County. In addition, at least 30 people have died in Erie County’s jail since 2005. At least 372 people have died in New York City jails since 2001. Efforts to protect public safety must also address the acute and grave risk that incarceration poses to the safety and well-being of the tens of thousands of New Yorkers locked inside.

People in pre-trial detention are regularly locked in solitary confinement for months and even years. Ample research and accounts from survivors of solitary affirm that this practice causes serious and lasting psychological and physical harm.

Solution: Thankfully, our legislature and Governor took action to address this injustice. They responded to the call of the community and passed the new pretrial laws so that all people – not just relatively wealthy people – accused of misdemeanors and non-violent felonies can fight their cases while at liberty, with their families and communities and support networks, though with some degree of community supervision if needed.

The Chief Defenders Association of New York – an organization representing the heads of public defender officers in counties across the state – released the following statement on calls by certain prosecutors and sheriffs to delay justice for New Yorkers by placing a moratorium on new bail, discovery, and speedy trial laws, which are set to take effect on January 1, 2020:

“Earlier this year, New York took a giant leap forward for fairness, public safety, and fiscal responsibility by enacting new bail, discovery, and speedy trial laws. No longer will defendants be starved of critical evidence in their cases, which has fueled wrongful convictions and cost taxpayers millions in civil settlements. No longer will our bail laws allow the wealthy to go free pretrial while people in poverty are jailed for the exact same charges. As defenders, we have been appalled as countless people have been forced to plead guilty, regardless of guilt or innocence, to get out of jail.

It’s unfortunate that, when faced with the choice of doing right by New Yorkers or working to protect their own unfair tactical advantages in court, certain District Attorneys and Sheriffs have chosen the latter. What makes this especially unacceptable is that they are using taxpayer resources to mislead and spread baseless fear in our communities rather than working to implement the new laws that New Yorkers overwhelmingly support.” 

More Information & Full Statement (PDF)