Guards at Rikers Island (photo: Michael Appleton/Mayor's Office)
So-called problem-solving courts are now firmly entrenched in the American criminal justice system. What started with the development of a few local community courts soon expanded to a dizzying array of specialty courts and the problem-solving court industrial complex. And the situation, though well-intentioned, has unintended consequences.
Presently, across the country there are more than 4,000 community courts, domestic violence courts, fathering courts, youth courts, drug courts, mental health courts, sex offense courts, driving while intoxicated courts, human trafficking courts, and more. New York State has long been at the problem-solving court vanguard and is home to an unprecedented 141 drug courts.
While it is indisputable that the old way of doing business in the Criminal Court was not working, the problem-solving court cottage industry still must be carefully scrutinized. Although imbued with noble goals, it is imperative to ask whether these courts actually discourage a careful, critical examination of the constitutionality of the police behavior that brought the accused into court in the first place.
Problem-solving courts seek to promote a mindset of cooperation among all the institutional players. Defense lawyers are urged to shift from a litigation-based, adversarial approach to a team-based problem-solving ideal. Many experts believe that by abandoning even the semblance of the adversarial system, problem-solving courts inappropriately fast forward to sentencing. Particularly troubling are those courts that encourage defendants, implicitly or explicitly, to plead guilty early in the proceedings. Additional due process concerns are raised in those courts that impose pre-adjudication conditions on the accused.
The result is a system exactly the opposite of one that encourages a probing examination of the legality of the underlying arrest and proof of the accused’s guilt. Instead, problem-solving courts focus on treatment, a discussion more appropriately reserved for sentencing.
Whose problems do these courts purport to solve? If the courts are concerned with the defendant and his or her "problems," then we must ask what sort of therapeutic value is added by the problem-solving court. Well before terms like problem-solving courts and "therapeutic jurisprudence" came into the vernacular, scholars found that defendants cared about more than just the outcomes of their cases. It turned out that defendants cared deeply about the process and whether they were treated justly. In fact, many suggested that treating defendants fairly increased the chances that they would avoid future misconduct.
The defendants' feelings of unfairness did not have to do with whether they were treated therapeutically or whether their problems were solved. Rather, defendants clamored for what boils down to basic due process. They wanted an advocate to fight for their rights and for a judge to give them their day in court. Defendants voiced particular concerns about their lawyers. Countless defendants stated that their lawyers simply urged them, forcefully, to plead guilty. Defendants wanted an advocate; a lawyer who would fight to enforce their rights.
If we truly care about therapeutic value to the accused of court proceedings we would strive mightily to ensure that every defendant has their day in court, if desired, and that all precious constitutional rights are protected. Those do not seem to be high priority goals of the problem-solving courts.
What follows is drug treatment court from the point of view of the accused. It is based on a composite of many clients who have gone through the treatment court process.
Inside Drug Court: The Defendant’s Perspective
So another addict (who turns out to be an undercover cop) asks me to buy him a bag in exchange for a bag for myself. It’s the easiest, least dangerous means of getting my drugs because otherwise I may have to resort to other activities that can potentially put me or other people in danger.
So I do it. He gives me 20 bucks and I go to a guy I’ve copped from before and ask for two bags. I return with the drugs and give my new business partner his share. He walks away and within seconds there’s a team of cops on top of me, putting their hands inside my pockets, down my pants, treating and speaking to me in a demeaning and dehumanizing way for everyone on the street to see and hear. But who really cares, I’m just a drug addict. At this point, I really don’t care much either; my sense of self worth faded long ago.
I’m held there on the street, hands cuffed behind my back and surrounded by cops, until I hear “positive ID” on the cop’s radio. I don’t see the guy I bought for or the guy I bought from. I’m pushed into a van where other lucky bastards like me have been awaiting the ride to the precinct. At the precinct, we’re herded like cattle into a pen and “processed” like some cheap junk on an assembly line. I spend hours sitting on a hard metal bench shoulder to shoulder with too many sweaty guys in a hot and stinky cage. The faces are always the same. Another bunch of black and Hispanic guys arrested for all kinds of stupid things, some mentally ill, some totally stressed, some angry, some coming down from a high, some suffering from withdrawal, some who have not had a warm meal or a bed in months. But mostly all of us are just resigned to our fate.
After a few hours, a cop orders me out of the holding cell and asks questions about my “pedigree” like I’m some kind of dog -- where you live, where you born, date of birth, height, weight, any medical history (like they really care)? Then it’s back in the van to Central Booking where more “processing” and caging takes place until I’m brought into yet another holding cell where I wait to meet a lawyer and see a judge.
The lawyer is well meaning. I think. She talks to me for five minutes. She asks me about the conversation I had with the undercover cop. She asks me if I have scars or tattoos. She asks about the lighting and for a description of the area. I tell her it was dark. That it was in front of a building that looks like a lot of other buildings. It was near a bodega. What else can I say? There was dog crap on the sidewalk, broken glass in the street, and the street lamps (at least the ones that work) are a depressing shade of orange.
Then she tells me, very nicely, that I have a terrible criminal record and a messed up record for coming to court (as if I didn’t know that already). I know the drill. No judge is going to release me because they don’t expect me to come back. It doesn’t help that I’m currently homeless. When you’re homeless no one expects you to be responsible enough to show up to anything.
I see the judge a couple hours later. She sets bail. The amount doesn’t matter; I don’t have five bucks to my name. But the lawyer tells me I’ll get released if the cops don’t come in to testify in five days. Maybe they won’t. They seemed OK. They told me they wanted to help me. They told me it wasn’t a big deal. Maybe a misdemeanor. Maybe I’d get drug treatment. Drug treatment? I guess it’s better than jail but I’m not ready for that. Not yet. And this is a B.S. case. No, I’m not taking nothing. Except maybe a misdemeanor. Yeah, I’ll take a misdemeanor. And time served.
Five days later and my case is in the grand jury. The cops showed up to testify. Damn. I was really hoping to get out today. Now the lawyer is talking about me testifying but she thinks I shouldn’t. Maybe she’s right. I don’t really want to testify anyway. F that. Then I’m back in front of the judge. We get another date to come back to court. Back to Rikers. As long as I keep my head down out there it won’t be too bad. The stuff that happens there really don’t bother me anymore. Not like it used to.
It’s the next court date and I'm back in another holding cell. Been up since the 4 a.m. trip from Rikers to the court. Waiting to see the judge. My palms are sweaty, my stomach is in knots, and I’m wondering if the case is going to get dropped, if I’m going to jail, or if I’m just going to be coming back and forth to court. The lawyer meets me in a booth. She talks to me for five minutes. She asks me about treatment. I ask her about my defense. She tells me about the problems with the case and goes back to talking about treatment. She says if I make it through treatment I can end my case with a misdemeanor and a conditional discharge. She says it doesn’t hurt to be interviewed by some program person. I go along with it but I’m not sure it’s such a good idea. Then again, what else am I gonna do?
I meet with a rep from the drug program. I admit I’m an addict. No surprise to anyone anyway, right? She says I’m qualified. No surprise to that either, right? I’m qualified. That’s what these people say instead of saying I’m a f-ing junky. I’m “qualified” like I just got approved for a loan to buy a house or start a business. But it really just means I’m a f-ed up junky with no options.
Next thing I know, I’m in front of a judge talking about me pleading guilty to selling drugs to an undercover. She tells me if I finish the drug treatment program I’ll get a misdemeanor. If not, it’s back upstate for two years plus two years post release supervision. My lawyer doesn’t say anything. She just repeats to me what the judge said and adds empty words of encouragement. I’ve heard those before. She didn’t make a single argument. She never asked a single question to any of the cops who set me up that day. Why aren’t the cops here in court? They’re probably out there setting up the next guy.
I’m thinking screw this, I’ll take it to trial. Make the cops come to court. I’m not going out like this. Not this time. I copped out every other time but they set me up this time. Yeah, take this damn thing to trial. Then I hear the judge say it’s a “one-time offer” and my lawyer starts pleading with me to take the plea. Whatever. Fine, I’ll take it. But before I plead out I turn and whisper to my lawyer, "I should've taken the two bags and run when I did it, right?”
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Steve Zeidman is a professor of law at CUNY School of Law. On Twitter @SteveZeidman. CB is a public defender in New York City.
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"Keeping New Yorkers In Their Homes" (photo: Demetrius Freeman/Mayor's Office)
I’m a tenant lawyer: I work for a nonprofit that receives funding from the City to defend low income people in their eviction proceedings and keep them in their homes. I can do a lot for tenants and I know Right to Counsel for indigent folks facing eviction is good policy, everyone should have a lawyer in housing court. While I can help people facing unlawful eviction, I cannot make housing more affordable in New York City. But the real reason most people face evictions in housing court is not just because they cannot afford housing -- it is a policy called vacancy decontrol.
Housing has been a challenge in New York City for more than a century, but we actually have had some form of rent regulation meant to mitigate that problem for nearly the same amount of time. It has appeared in different forms and shapes. Currently we have around one million apartments under rent stabilization. It has kept people with a roof over their head for nearly 50 years.
But rent stabilization is much less effective now than when it started. From 1974 until 1993, most rent stabilized apartments were more or less guaranteed to remain that way because of automatic lease renewals. But in 1993, the law changed and gave landlords a way to get an individual apartment out of rent stabilization once it became vacant. Vacancy decontrol became law with the support of Democrats and Republicans in the State Senate (many of whom are still around today). The law became much worse in 1997, again with wide bipartisan support. And now, the more neighborhoods gentrify, the more landlords get very hungry to push their tenants out.
Imagine what our city would look like today if vacancy decontrol had not come into effect? I am experienced enough to know that most of my clients facing eviction would be better off if vacancy decontrol was not driving their landlords toward eviction. Half my clients face evictions with dubious claims, and everybody in court - the lawyers, the judges, and certainly the tenants, know that beneath the legal pretext, the real desire to evict them is to get the apartment up to market rate rent. The other half of my clients face nonpayment cases in increasingly expensive apartments with no option of more affordable housing to find, because more and more of their neighborhood apartments have been decontrolled.
To be sure, a tenant with a lawyer will discourage some landlords from weak claims due to the potential cost of a lengthy trial. But money incentive to get that apartment to market rate is very high -- an extra $10,000 to $20,000 to evict a stabilized tenant in a complicated trial might be worth the hundreds of thousands a landlord can make in the long run.
While I’m happy to engage a hard fight in a case to keep people in their home, I will not win every time. And more importantly, the Right to Counsel bill before the New York City Council only covers people under 200% of the federal poverty level. There are a lot of people who will never be able to afford a quality housing lawyer but do not fit into the bill’s criteria, which would provide publicly funded attorneys to any qualifying tenant facing eviction. Unless the state Legislature changes the rent laws, we are never getting that affordable apartment back -- this discussion cannot ignore the vacancy decontrol elephant in the room.
And that is the important point - we could hire 50,000 more lawyers, but we could also just eliminate vacancy decontrol and fix housing policy in New York City. Taking that step, or any step in that direction, would secure housing for thousands and thousands of New Yorkers. We can fix the rent laws, and if we did that we might not need so many lawyers.
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Richard Semegram is a practicing tenant lawyer. On Twitter @richagram.
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Hunter's Point South Living (image)
From iconic architecture to imposing size, there is no denying that real estate has defined New York for generations. But even the most forward-thinking developers of 50 to 100 years ago might not recognize the dizzying pace, shifting policies, and growing demands that dominate today’s industry.
Here is the hard truth facing developers these days: achieving excellence in one area does not always lead to success. In fact, it rarely does. It is no longer enough to just design a beautiful building, imagine a new public space, or revitalize an older structure. We are so often urged — and just as often expected — to accomplish all those things, or others, in a single project.
The Urban Land Institute’s mission to provide leadership in the responsible use of land and in creating and sustaining thriving communities worldwide should remind us that these development challenges are not just results of market or zoning pressures. Meeting these challenges is just as much about thoughtful planning and building a dialogue with the neighborhood leaders and planning officials who play roles in advancing new development. Perhaps most importantly – as ULI has made clear – it is about providing added value through new transit access, sustainable design, environmental resilience, or other aspects. In its simplest form, it is smart city building.
For years, ULI has helped set the bar for responsible land use with its Global Awards for Excellence, which crowns winners in cities worldwide. But the changing face of New York real estate has made it clear that we also need a local competition — one focused solely on raising the industry bar across our state.
That is why we at ULI New York launched our own Awards for Excellence in Development — a statewide contest open to private, public and non-profit developers, whether or not they are ULI members. More than anywhere else, it is vital for New York’s real estate industry to meet and even surpass the responsible land use principles laid out by ULI and our members worldwide. By recognizing and elevating leaders who take a truly holistic approach, we believe we can help increase the quality of development across the state for generations to come.
At our inaugural awards gala this past March, the first class of winners showed just how far our industry can go to meet diverse needs in New York City and upstate.
In Queens, Hunter’s Point South Living created a mixed-use, affordable housing development that established a benchmark for a new workforce housing experience. In East Harlem, the Center for Living and Learning seamlessly combined affordable apartments, a charter school, and non-profit office space to create a true community hub. In Buffalo, Conventus brought together clinical, educational, and research components in a center for collaborative medicine on the Buffalo Niagara Medical Campus. In Lower Manhattan, the National 9/11 Museum and Pavilion site carries with it both the power of its history and hope for the future in commemorating those who lost their lives on September 11, 2001. These were just a few of the projects that inspire us all to reach greater heights.
On September 12, ULI New York opened the nomination period for our Second Annual Awards for Excellence in Development — and we hope to see even more submissions than we did last year. With two new award categories, we are now taking project submissions in a total of eight categories: office, housing, mixed-use, repositioning or redevelopment, hotel, retail, institutional, and civic space. Developers interested in submitting a project should visit our website for details on applying. Our Awards Committee will accept submissions until November 4, after which the finalists in each category will be announced in January.
Our team is committed to finding the most outstanding developments in New York and helping our industry meet every challenge. But we can only do that if developers in every corner of the state are willing to participate and put their best new projects up for consideration. We know our next winners are out there — and we are excited to see what the future of real estate looks like.
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Marty Burger is CEO of Silverstein Properties and Chairman of ULI New York. On Twitter @ULINewYork.
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