[Guest Post] Patting down the data on racial profiling in New York City

This is the next in a series of guest posts on criminal justice broadly speaking from Peter Wagner of the Prison Policy Initiative.

by Peter Wagner

New York City’s “stop and frisk” policing strategy is getting a lot of attention. A police officer notes a “reasonable suspicion,” whatever that is, and then stops the person, asks some questions and then often frisks him or her.

It’s not hard to see where allegations of racial profiling come from. It’s the subject of a class action lawsuit, and last week 20 people, including Cornel West, were convicted for a civil disobedience protest last year against stop and frisk.

“Stop and frisk” is a major NYC initiative that is growing:

The majority of the people being stopped and frisked are Black and Latino, and that’s been a consistent fact: 

Advertisement

The Fiscal Crisis and Criminal Justice Reform

Does fiscal crisis promote criminal justice reform? From reading newspapers and magazines, one would certainly think so. State efforts to cut costs by downsizing prisons have been one of the biggest criminal justice stories in recent years — with articles like this one (on California) and this one (on Oregon and… (the list could go on) now a recurring feature in both national and local newspapers. UC-Hastings law professor Hadar Aviram has coined a term for this convergence of fiscal woes with prison reform: “humonetarianism.” And one of the more intriguing political developments of the Obama era — the sudden reversal of many right-wing politicians from their Bush/Clinton/Bush era “tough on crime” stance — can be explained in part by concerns about the runaway costs to taxpayers of mass incarceration. Yet as Malcolm C. Young notes at The Crime Report, state budget woes can also be “double-edged swords” if they lead states to slash social programs that can help keep people out of prison.

In a (relatively) new paper, UW law professor Mary D. Fan provides some timely scholarly analysis of this seeming trend of “budget-cut criminal justice,” and offers suggestions for how states might move beyond expedient cost-cutting to lasting penal reform. In turn, here’s UC-Davis law professor Elizabeth Joh, writing at the legal blog Jotwell, discussing Fan’s findings:

Some of [the recent state-level prison reform] measures are decidedly modest; about half of the states have introduced “back-end” sentence reductions in their early release and parole programs so that individual prisoners receive small adjustments in their sentences in the interest of collective fiscal savings. Wisconsin has introduced “Taco Tuesdays” to save $2 million dollars a year by shaving off ten cents per inmate meal. Other measures, though, are decidedly more ambitious. Fan draws upon many examples. In 2008, Mississippi amended a law requiring prisoners to serve 85 percent of their sentences, so that parole boards could decide to release prisoners after serving 25 percent of their sentences. In 2009, New York amended its law to give counties the discretion to establish “local conditional release committees” to review applicants for early release. In 2010, the Colorado House of Representatives passed a bill with bipartisan support that lowers the penalties for several drug possession and use crimes. …

Fan suggests public officials consciously embrace a fiscally responsible, evidence-based approach to penal policies that focuses on alternatives to automatically increasing sentences and warehousing prisoners. Unlike the rehabilitative ideal of the first half of the twentieth century, this rehabilitation pragmatism is less interested in the moral transformation of the prisoner and more concerned with cost-effective measures that nevertheless assure the public of its safety. Fan draws our attention to a moment in our history that may well be a turning point for prison policies that desperately need political will and legislative attention.

Downsizing the Prison Population, in California and Beyond

As we begin 2012, it looks like California is on track to meet its court-ordered benchmarks for reducing the state prison population. KALW/The Informant notes:

The California Department of Corrections and Rehabilitation, readying its January 10 report to the federal court in the Northern District of California, announced it’s currently operating at 169.2 percent of its designed capacity. That number nearly hits the 167-percent figure the court demanded California meet by December 27, 2011.

In actual numbers, that means that the prison population has fallen by about 8,000 inmates since October–and should continue to drop at its current rate of about 900 a week.

The population decline is enabling CDCR to shut down “ugly beds” — the double- and even triple-bunk beds crammed into gymnasiums that became notorious through widely circulated photographs and video footage at the height of California’s overcrowding crisis. (Here are some photos of gyms and day rooms in the process of being converted back to recreational use.)

Second Circuit Reinstates Lawsuit over Sexual Abuse in New York State Prisons

Since 2003, the Legal Aid Society has been pursuing a class-action suit on behalf of “present and future” female inmates in the New York state prison system, alleging a pattern of “sexual abuse—including forcible rape—of women prisoners by state correctional officers,” facilitated by inadequate staff screening, training, oversight, and grievance procedures. Claiming violations of the Fourth, Eighth, and Fourteenth Amendments, the plaintiffs are asking a federal district court to issue an injunction requiring the New York DOC to implement more effective policies and procedures for preventing sexual abuse.

At the trial court level, the case had been dismissed by district judge Kevin Duffy, in part because some of the plaintiffs are no longer in prison, so their requests for injunctive relief are moot. Now the Second Circuit has reversed that ruling, reinstating the lawsuit as to those plaintiffs and sending it back to the district court for further proceedings to determine if the case can proceed as a class action. (Full opinion PDF here — note, the case has had a very complicated procedural history and this is mainly a procedural ruling, so the opinion may be hard to follow; I’ll translate some of the legalese after the jump, if you’re curious).

The AP reports on the stance of the New York Department of Corrections:

In April, Corrections Commissioner Brian Fischer testified the department has adopted a series of directives and orientation materials for prisoners and notices to staff and inmates emphasizing zero tolerance sexual abuse. He noted the department’s inspector general has one of the few prison sex crimes units in the nation investigating allegations of misconduct by staff, as well as abuse by inmates on one another.

“The reality, however, is that while we do not willingly tolerate sexual abuse of our offenders, we may not be able to ever fully eradicate the occurrence,” he said. “Our approach is to take proactive preventive measures, immediately respond to all allegations and seek criminal penalties where appropriate believing that such efforts have a deterrent effect within the system.”

Upcoming Event: Conference on Attica, 40 Years Later

Doug Berman notes an upcoming conference commemorating the 40th anniversary of the Attica prison uprising:

40 Years After the Attica Uprising:
Looking Back, Moving Forward

University at Buffalo Law School, The Baldy Center for Law & Social Policy
Monday, September 12 & Tuesday, September 13, 2011

The first panel looks especially interesting, as it will bring together many who were there in 1971:

Looking Back: The Attica Uprising and Aftermath

Scholars of the Attica Uprising and individuals with first-hand experiences of the Uprising and its impact will recall the events leading up to the Uprising, reconstruct the historical timeline, specifically discuss their role in the events that followed the Uprising, and discuss the significance of those events to prisoners, corrections, and to communities four decades later.

Malcolm Bell, Former Special Assistant Attorney General (NYS Attica Investigation)
Arthur O. Eve, Former NYS Assemblyman & Negotiator/Observer
Melvin Marshall, 1971 Attica Inmate
Dee Quinn Miller, Director, Forgotten Victims of Attica
Herman Schwartz, Professor of Law, American University and Negotiator/Observer
Michael Smith, Attica CO in 1971 and Hostage
Heather Ann Thompson, Professor of History, Temple University
Teresa A. Miller, Professor of Law, University at Buffalo (moderator)

Other panels will include a wide range of academics, lawmakers, prison officials, and lawyers. The full schedule and registration is here.

Judge Rejects Prison Guards’ Lawsuit to Keep Staten Island Jail Open

A federal judge has thrown out a class-action lawsuit by prison guards seeking to keep open the Arthur Kill Correctional Facility on Staten Island. Set to be shuttered on December 1, the prison is one of seven targeted by Gov. Andrew Cuomo for closure. The lawsuit was filed on behalf of black and Latino guards,

contending that the closure of Arthur Kill will cause disproportionate harm to minority officers because the nearest medium security jail they can transfer to is 100 miles away from their homes.

The upstate prisons slated for closing are largely staffed by white officers who will not face a similar hardship commuting to another jail, according to lawyer Linda Cronin, who represents the minority officers.

[Judge Dora] Irizarry reserved decision on the request for a temporary restraining order, but ripped Cronin for coming to court with “nothing more than hearsay and speculation.”

Are “Certificates of Rehabilitation” the Solution to Prisoner Reentry?

Should more states join the seven that offer ex-prisoners the opportunity to earn “certificates of rehabilitation”? In a new paper, NYU law professor Joy Radice draws lessons from the 50-year history of these certificates in New York, the first state to introduce a program of this type. Here’s the abstract:

After years of swelling prison populations, the reentry into society of people with criminal convictions has become a central criminal justice issue. Scholars, advocates, judges, and lawmakers have repeatedly emphasized that, even after prison, punishment continues from severe civil penalties that are imposed by federal and state statutes on anyone with a conviction. To alleviate the impact of these punishments, they have increasingly endorsed state legislation that creates certificates of rehabilitation. Seven states offer these postconviction certificates, and six others proposed such legislation in 2011. Many look to New York’s statute as the best model because it is the oldest and most robust. Yet no article has examined New York’s experience with Certificates of Rehabilitation.

This Article draws lessons from the fifty-year history of New York’s Certificates of Rehabilitation to describe features of an ideal administrative mechanism that removes statutory barriers to reentry. I argue that a model Certificate of Rehabilitation statute will have a strong enforcement mechanism and clear directives for administering authorities. Successful implementation also requires committed administrative leadership and an effective means for making certificates accessible to the population they serve. Certificates of Rehabilitation do not erase a person’s criminal history, but they offer legal and social recognition that after a criminal conviction, a person deserves a second chance.

New York State Senators File Lawsuit to Bring Back Prison-based Gerrymandering

Our friends at the Prison Policy Initiative worked tirelessly last year for a legislative end to prison-based gerrymandering in New York State. To put the problem in perspective, upstate New York has seven State Senate districts that would not meet minimum population requirements without claiming incarcerated people as residents. The good news is the legislation passed, but now a group of (surprise!) upstate state senators has filed suit seeking to block implementation.

Lead plaintiff, State Senator Betty Little, has 13 prisons in her district, housing over 10,000 prisoners, so no wonder she’s nervous at the prospect of redistricting without that artificial boost to her numbers. But as Peter Wagner of the Prison Policy Initiative points out, inflating State Senator Little’s district only dilutes the votes of everyone else in New York State:

“Senator Betty Little filed suit this week to revive a legal fiction, claiming that individuals imprisoned in her district are members of the local community and should be counted there when it comes to drawing state and local legislative districts. Senator Little’s attempt to inflate the population of her district with more than 10,000 incarcerated, non-voting residents from other parts of the state will dilute the votes cast in all other districts.”

Ramon Velasquez puts the issue in personal perspective at the Huffington Post:

What if I told you your vote counts more depending on where you live in New York? Should a resident of Wyoming or Cayuga County gets more say in who is elected than a resident of Brooklyn or the Bronx?

At 51, I voted for the first time in my life last fall after I was discharged from parole. Now that I’ve done my time, I expect my vote, or my neighbor’s, to count the same as any other vote cast in this state. A person living in a town with a prison, however, has more voting power than me or most other New Yorkers because of a practice called “prison-based gerrymandering.”

Of course, prison-based gerrymandering does dilute the vote of residents of Brooklyn and the Bronx, but it also dilutes the vote of Manhattan and Staten Island and Long Island, of parts of upstate New York that aren’t near a prison — basically, it dilutes the vote of anyone who doesn’t live in a district with a prison. The Prison Policy Initiative also has a round-up of news coverage and a copy of the senators’ complaint (PDF).

 

Downsizing the Prison-Industrial Complex

One problem with the last 30 years in the United States is that we built all of these prisons and now they stand as an argument for their own preservation. Against hypothetical visions of a future with both fewer prisons and safer, more vibrant communities, hulking brick-and-metal warehouses for the “bad people” seem, to many, like a safer bet because, hey, we’ve already built them. I suppose I would just say: We have to get over that.

New York Gov. Andrew Cuomo, in the spirit of his inaugural message that “an incarceration program is not an employment program,” will seek to cut 3,000 prison beds in his 2011 budget. That’d be the largest single-year reduction in over 10 years, but considering New York would still have 61,000 prison beds left, it’s not like Cuomo’s proposing some kind of radical flinging-open of the prison doors. Plus New York’s not exactly flush in cash these days, so maybe this sounds like a good idea! But of course, the problem is that the politics of closing prisons are dicey (second in diceyness perhaps only to the politics of closing military bases), so instead of closed prisons it looks like what New Yorkers may actually get in 2011 is just another report by yet another blue-ribbon panel:

… instead of designating specific prisons for closing in his budget — a move that would harden opposition to his budget, perhaps implacably, among lawmakers whose districts are home to the facilities — Mr. Cuomo will appoint a task force of lawmakers and prison officials to come up with a consolidation plan after the budget is passed, people briefed on the plan said.

Donn Rowe, the president of the state correction officers’ union, expressed dismay over the proposal, saying, “The closure of any additional facilities could pose a clear and present danger to the public.”

Meanwhile, the New Orleans City Council is scheduled to vote this Thursday on how big of a new jail to build.

Gov. Cuomo: “An Incarceration Program Is Not an Employment Program”

Cheers to New York’s new governor, Andrew Cuomo, who’s vowed to restructure and maybe even close the state’s notorious juvenile justice facilities:

Cuomo said he understands the importance of keeping jobs, but that doesn’t justify the cost to the taxpayer and the risk to the young people who are in programs that aren’t working, many of them hundreds of miles from home.

“An incarceration program is not an employment program. If people need jobs, let’s get people jobs,” he said in his address Wednesday.

One of my first posts here at Prison Law Blog was on the especially infamous Tryon juvenile facility upstate, which is scheduled to shut its doors in just a few weeks. One of Gov. Cuomo’s proposals is to shorten the current 12-month waiting period that draws out the closure process for these facilities.