(photo via @NYPDnews)
Tyrone Tomlin was standing outside of a deli holding a soda and drinking straw when two police officers from Brooklyn North Narcotics arrested him for possession of drug paraphernalia. The officers asserted that, “based on their training and experience,” Tomlin possessed an item commonly used to package heroin -- the drinking straw. An Assistant District Attorney took the officers at their word and recommended bail, which Judge Laura Johnson set at $1,500 cash. Tomlin didn’t have the $1,500 and was sent to Rikers Island.
Junior Weems was arrested by two undercover officers who asserted that, “based on their training and experience,” Weems had possessed cocaine and intended to sell it. A prosecutor requested bail, which Judge Jane Tully set at $2,000 insurance company bond or $1,000 cash; like Tomlin, Weems told the judge he didn’t have funds to make bail and he too was sent to Rikers Island.
But neither Tomlin nor Weems (whose name has been changed) actually possessed any drugs, a fact that was only verified by the New York Police Department (NYPD) laboratory after each had spent days incarcerated at Rikers Island. Both cases were eventually dismissed, but considerable harm had already been done. Just one day in jail can mean the loss of job, housing, or even parental custody; plus exposure to the horrors and dangers of NYC jails, which have been well documented.
These stories are not unique, unfortunately. More than 20,000 people were arrested for misdemeanor drug possession (excluding marijuana, which is a separate offense) in New York City in 2015, making it the fourth most common arraignment charge citywide. In 2015 alone, Brooklyn Defender Services represented more than 2,000 people – three quarters of whom were black or Latino – whose most serious charge was possessing trace amounts of a drug other than marijuana. The difference between felony and misdemeanor drug possession is weight.
A deeper look into the data shows how fraught many of these low-level cases are, in part because they deal with amounts of substances, either illegal or not, that are so tiny that they are often difficult to identify. Meanwhile, although corroborating lab results are required shortly after arraignment for prosecutors to secure an indictment for a felony, similar due process protections for misdemeanors do not exist. The operating notion is that police officers’ “training and experience” is good enough -- despite evidence that they get it wrong frequently -- and many cases resolve through plea deals before the evidence is even accurately tested.
Of the 2,091 Brooklyn Defender Services cases we reviewed, a full 25 percent -- 534 cases -- were eventually dismissed because the drug lab returned a result contradicting the officers’ “training and experience;” or because they involved an illegal search; or due to other reasons.
Nearly 300 Brooklyn Defender Services clients accused of misdemeanor drug possession (non-marijuana) had bail set, nearly all of whom spent at least some time at Rikers Island. Another 741 defendants pled guilty at arraignments, sometimes to a lower charge. While we cannot say for certain how many people did so under coercion from the prospect of bail and jail, we know anecdotally that many people in cases like this plead guilty -- regardless of guilt or innocence -- simply to avoid more jail time. Everyone arrested and booked in New York City spends around 24 hours locked up in NYPD custody, before even seeing a judge.
At a time when public opinion nationwide favors treating drug use as a public health issue, we must stop and ask why these problematic arrests and incarcerations, which do not improve public safety, are happening in the first place. In some of these cases, people are arrested and incarcerated even when they do not actually possess illegal drugs. In cases when a person possesses drugs in an amount so small that it can’t be identified properly, should we really be sending them to Rikers Island -- interrupting their life and introducing collateral consequences that can haunt them for years after?
Ultimately, the simple possession of all drugs, especially in amounts so small they are routinely misidentified, should be fully decriminalized in New York State, as Human Rights Watch eloquently argues in its recent report “Every 25 Seconds.”
As an interim measure, the State Legislature should immediately take action to amend court procedural rules to include due process protections for people accused of possessing small amounts of drugs -- for example by requiring a lab report to hold anyone in custody longer than 24 hours and prohibiting District Attorneys from making recommendations about bail other than release when a lab report is absent. District Attorneys, with an ever-growing mandate to do justice, could resolve the issue immediately by declining to prosecute these cases.
The Mayor of New York City should require the police department to end its prioritization of these arrests, and to limit enforcement only to cases with a clear public safety justification. This aligns with the New York City Council’s work under the 2015 Criminal Justice Reform Act.
The City Council should adopt legislation that would require District Attorneys and the NYPD to report on drug possession cases where an officer’s “training and experience” was contradicted by lab results. These officers should, at minimum, be required to undergo retraining, and repeat offenders should be disqualified from making street-level arrests.
In this time of national reckoning over mass incarceration and the drug war, New York -- both City and State -- have an opportunity for leadership. It’s time for a change.
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Melissa Moore is the deputy state director of the New York policy office of the Drug Policy Alliance. Nick Malinowski is the Community Advocacy Coordinator at Brooklyn Defender Services. On Twitter @mooremeliss and @nwmalinowski.
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With National Lead Poisoning Prevention Week coming to a close, it’s important to reflect on the work needed to reduce our children’s exposure to lead and prevent its serious health effects. Over the past year, the nation has watched a tragedy unfold in Flint, Michigan, as an entire community’s drinking water was contaminated with lead. But the problem extends well beyond Flint. In nearly 2,000 communities in every state across the country, tests have confirmed lead in the water coming out of residents’ taps. In fact, lead is even contaminating drinking water in schools and pre-schools, right here in New York.
It’s time to take the steps necessary to eliminate this serious health risk.
Lead is highly toxic, and it’s especially damaging to kids – impairing how they learn, grow, and behave. Lead can also cause high blood pressure, and even damage the nervous system and kidneys. According to the American Academy of Pediatrics, our kids will cumulatively lose an estimated 23 million IQ points from lead exposure – mostly due to a high number of children exposed to low levels of lead.
Yet tests have confirmed that schools in New York City, Westchester, Long Island, and New York’s Capital Region have had lead in the water flowing from their faucets or fountains. And in all likelihood, that is just the tip of the iceberg. Most schools in New York have at least some lead in the pipes, plumbing, or fixtures that deliver the water our children drink. And where there is lead, there is risk.
Medical and public health experts are unanimous: there is no “safe” level of lead for our children. The Environmental Protection Agency (EPA) and the Centers for Disease Control (CDC) agree, yet water utilities are only required to take action when tests show lead in drinking water at 15 parts per billion in 10 percent of results.
Fortunately, some progress is being made in New York to get lead out of drinking water. Last month, Governor Cuomo signed landmark legislation, which includes the toughest lead contamination testing standards in the nation, and mandates that schools across the state test drinking water for lead contamination. While this is a good first step, more work is needed to ensure that our children are truly protected from lead contamination in schools’ water.
Given the threat to our children’s health, it’s time for New York to “get the lead out.” Ideally, this means pro-actively removing lead-bearing parts from schools’ drinking water systems – from service lines to faucets and fountains – and installing certified filters at taps and fountains used for drinking or cooking. At the very least, schools should regularly and properly test all water outlets used for drinking or cooking and immediately remove from service those where the water contains any lead. Schools should also provide the public with easy access to specific testing data and the status of remediation plans.
And of course, we need to remove the lead contamination threat not just in schools but throughout our communities. In September, Congress took a first key step to help communities do just that. The U.S. Senate version of the Water Resources Development Act includes money for Flint, as well as a small grant program for communities here in New York and across the country to remove lead pipes and otherwise reduce risks of lead contaminating our water, plus $20 million for schools to test for lead. Congress should quickly approve this funding when it returns after Election Day.
Additionally, the New York Legislature should match it with state funds in the spring.
School is where our children go each day to learn and develop. It’s time for our leaders to “get the lead out” before it’s too late.
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Heather Leibowitz, Esq. is the Director of Environment New York, a statewide advocacy organization. On Twitter @EnvNY.
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A rally for the Fair Chance Act (photo: Andrew Bowe, National Employment Law Project)
For almost two million New Yorkers, the Fair Chance Act, a city law passed one year ago, represents opportunity. The law helps level the playing field during the job application process for the nearly one in three city adults with an arrest or conviction record.
For people attempting to support their families after an encounter with the criminal justice system, moving on isn’t easy. The stigma of a record can follow someone for a lifetime, casting a shadow that obscures the applicant’s skills in the eyes of potential employers. When employers inquire about arrest and conviction records up front, those applications with the box checked—indicating “yes, I have a record”—frequently end up in the trash. Applicants who check the box are half as likely to get a callback as those who don’t—one-third as likely if the applicant is black.
After Brooklyn native Jason Grant left prison, he checked the box on lots of job applications. He didn’t receive callbacks. “It was definitely frustrating,” he says. For over a year, he got only construction gigs—one of a few industries historically more open to hiring workers with records. The work was intermittent and took a toll on his body. Long periods between jobs made it nearly impossible to provide for his son.
This year, things changed for Jason and millions of New Yorkers. Thanks to the Fair Chance Act, the conviction-record checkbox on job applications is gone. In other words, the city “banned the box.” All public and private sector employers must now postpone any record inquiries until the final stages of the hiring process—after they have extended a conditional job offer.
In addition to banning the box, the law requires that if employers run a background check and it turns up positive, they must consider the age of any offense, its job relevance, and evidence of rehabilitation. They must provide the applicant with notice, a copy of the record, and an opportunity to respond and correct any inaccuracies. The employer may rescind the offer after following that process. (Applicants who observe violations can report them to the NYC Commission on Human Rights.)
Referred to collectively as fair-chance hiring, these safeguards were born out of state and federal anti-discrimination law.
After the Fair Chance Act, Jason found a stable job that he loves at Architectural Grille, a modern manufacturing plant specializing in metal products. “I like challenges...I get to learn something new. These are million dollar, intricate, complex machines,” Jason said.
Fred D’Antoni, who found Jason through the Center for Employment Opportunities, says hiring Jason was a good choice. “He was just so motivated and thankful for the opportunity...Such great potential.” And he says his experiences hiring other workers with records have been similarly positive.
Jason realizes he is lucky. Nearly one in three American adults—disproportionately people of color—has an arrest or conviction record, and many must still check the box when they apply for a job.
But the tides are changing. New York is one of 14 cities and counties (and nine states) to have banned the box for all employers. The District of Columbia adopted a fair-chance law in 2014 and has since hired 33 percent more people with records. After Richmond, Virginia banned the box in 2013, approximately one in four people eligible for city hire had a record—and most got a job.
Despite positive gains, opponents cite two recent studies criticizing ban-the-box. They say the policies result in increased discrimination against applicants of color because employers assume they are likely to have a record. But as one economist noted, the studies are unconvincing. The results actually demonstrate increased hiring and callbacks for most people with records. Where gains are flat for young men of color, the studies show that racial discrimination in hiring is deeply entrenched. Instead of undoing a policy that works, we should strengthen it with a full jobs agenda and targeted anti-discrimination efforts to address these biases.
In the end, the data is only one part of the story. For workers like Jason, stable employment can be the difference between making it or not after contact with the justice system. Having a place to live, supporting your family, a sense of purpose—these all flow from a job. The Fair Chance Act is changing lives for the better, and New Yorkers—both employers and employees—should be proud to have one of the strongest fair-chance laws in the nation.
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Beth Avery is a staff attorney at the National Employment Law Project (NELP) and works to promote fair-chance employment and opportunities for workers with records across the nation.
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