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Criminal Justice

Criminal Justice

Upholding the Cell Phone Ban


The New York City Department of Education’s ban on cell phones in all public schools has been upheld in a decision of the state Supreme Court.

Regulations on discipline in schools, established by the chancellor of the New York City Department of Education, forbid students to bring a variety of dangerous objects such as knives, guns, and box cutters into any school building; among the prohibited articles: cell phones.

Despite opposition efforts to limit the ban to the use of cell phones in schools rather than mere possession, an acting justice upheld the total ban as well as the department’s power to impose punishment including confiscation of phones. Students who attend schools the department considers particularly dangerous go through metal detectors that can find the phones. But all students, even those in schools with a rather low incidence of discipline problems, are subject to search by magnetometers and roving metal detectors that go to different schools every day.

FAMILY RIGHTS, CHANCELLOR’S PEROGATIVE

The Chancellor’s Parents Advisory Council and eight parents contend in a lawsuit known as Price against New York City Department of Education, Mayor Michael Bloomberg et al, that their children’s safety is threatened by not being able to carry phones, which the parents characterize as a "lifeline" to call for assistance while traveling to and from school, at after-school activities or athletic events. or in case of a public emergency or disaster. The parents agreed that the use of phones in schools is undesirable, but argued that banning their use, rather than their possession, would adequately meet the chancellor’s objectives.

The petitioners had argued that the rule eroded the constitutional rights of parents and children to make family decisions. Because of that, they said, the rule’s purpose must be examined with heightened scrutiny.

David Leichtman, a partner at the law firm of Morgan Lewis, along with civil rights attorney Norman Siegal, is representing the petitioners pro bono, says, "This is not a case about cell phones. It is about who is responsible for the safety of our children before 9 and after 3. The chancellor’s authority ends at the school door," Leichtman argued. "The mayor’s policy that we are challenging deprives the 1.1 million most vulnerable kids of New York City of their safety."

Siegal, describes the rule as "an intrusion into the relationship between parents and their children," and argues that government must show that it has an essential interest, if they are going to be permitted to interfere with that relationship. The lawsuit contends that there has been no such showing to support infringing on "the care, custody, and control of petitioners’ children."

For its part, the Department of Education contented that that anything education-based is beyond the court’s powers of review. The court rejected that argument as “frivolous.”

But then when Judge Lewis Bart Stone went on to consider the challenges to the cell phone rule, he found that, contrary to the parents’ claims, the ban was neither arbitrary nor unconstitutional. The court concluded that its function was to determine whether the promulgated rule was rational, and found that it was.

CELL PHONE AS ‘LIFELINE’

The petitioners all have children in middle school or high school and live in various parts of the city. The students travel by subway and bus to distant schools, often in other boroughs. Court documents detail allegations of risks to children who do not have cell phone "lifelines," and problems averted when they did have phones.

Raven, the 9 year old daughter of Isaac Carmignagni of Queens, was locked out of school before her adult escort arrived to pick her up, but was able to call her father on her cell phone.

Named petitioner, Camella Price, a single mother who is chief of staff for a New York state senator, knows that her two young daughters are subject to school searches by roving metal detectors. Still, she has instructed them to continue to carry their cell phones to school, turning them off during class. Prior to enforcement of the ban, her younger daughter at 11 was beaten up on her way home from school and was able to use her cell phone to call for help.

Beth Berenbaum described in a letter to Chancellor Joel Klein, that her son, a high school freshman travels from Staten Island to Manhattan’s LaGuardia High School by ferry and train, calling his mother at work in New Jersey when he reaches his destination. Responding to her letter, the chancellor’s office said, "It is the experience of many of our principals and teachers that if phones are allowed into school buildings, they will be used inappropriately. ... Aside from simple disruption, students have used cell phones for far more serious offenses. In the past, for example, students have used cell phones to rally support during fights, to cheat on exams, and to take illicit photos of school work or people. ...All of these situations negatively impact the learning environment and cannot be tolerated."

Other examples of the usefulness of the phone include:

--a description of September 11, 2001, when cell phones provided the only means of communication.

--a 12 year old calling her mother from a cell phone because a man was following her from her bus stop.

--a student using a cell phone to find out how to get home after the youngster’s regular train station was evacuated due to fire.

Carmen Colon detailed her 10 year old son’s commute of one and a half hours each way from his Brooklyn home and the need for him to coordinate his travel arrangements with his two older brothers.

WHAT THE JUDGE FOUND

While the court did not take any position on the issue itself, other than his deciding that the Department of Education’s action is rational, the judge issued a lengthy decision containing expositions on procedural technicalities and personal philosophy along with a section labeled, "What is a cell phone?" Judge Stone, who normally hears criminal cases, made numerous references to infractions, discipline, security, magnetometers and cited his own experiences, commenting, "the Court has regularly observed that a ban on use does not always assure that cell phones do not ring in the courtroom at inappropriate times and cause disturbances. However, when they do, the Court, unlike a teacher in a classroom, has the benefit of armed court officers to enforce the use ban and to assure the restoration of order."

The decision rejected two amicus curiae briefs. These are offered to a court by interested groups or individual "friends of the court," who are not actual parties to the lawsuit, but seek to impress an expert point of view, or an argument not presented in the main litigation. But, the judge wrote, "Some of those claiming to be amici are really enemies posing in friend’s (sic) clothing. ... Each ill-considered amicus application puts an unnecessary and unwarranted burden on the Court, as such application must be read and addressed, if only to be rejected."

One of the rejected amicus briefs was offered by the United Federation of Teachers on behalf of classroom teachers, who said that, from their unique perspective, the phones are not disruptive.

In discussing the teachers’ role, the judge, who did eventually accept an affidavit from teachers union president Randi Weingarten, decided contrary to the teachers’ position. "Any enforcement system focusing on use, rather than possession, requires teachers, rather than only security personnel at the school door, to observe and enforce the ban and become involved in confronting students and punishment decision, in detriment of their pedagogical mission,” he said.

ROOM FOR COMPROMISE?

The petitioners have informed the education department that they would agree to have the phones parked in lockers. It appears, though, that most schools in this city do not have lockers for coats or sneakers, let alone cell phones. However, the city has issued a request for proposals from the private sector to install, commercially and off school premises, special lockers in which to place cell phones on a daily, paid basis.

In the meantime, lawyer Leichtman said , "We don’t see what the big deal is. Mayor Bloomberg is making a mountain out of a molehill." He said his clients "have a firm belief in the way they need to raise their children, and that it is not the schools’ business."

The petitioners and the lawyers are "seriously looking at an appeal," according to Siegel. Efforts to reach the attorneys who appeared on behalf of the city’s Corporation Counsel were unsuccessful.

Emily Jane Goodman is a New York State Supreme Court Justice 

Criminal Justice Under Eliot Spitzer


With four family members in prison, Andrea Johnson spends $100 every two weeks on collect phone calls from correctional facilities. So she was pleased that, soon after taking office, Governor Eliot Spitzer made changes that will cut her bill in half.

Johnson hopes this is an indication that Spitzer will look to make further reforms to the state's prison system where her husband, two brothers, and a brother-in-law are serving time.

"What happens when they get released? How do we approach that?" asked Johnson, whose husband comes up for parole in June. "Not through phone calls."

The governor has inherited a system that is in flux. There are about 63,000 men and women in the state prison system, down significantly from the peak of 71,000 in 1999. As crime has largely been brought increasingly under control, New York's prison system has shrunk. Experts across the political spectrum see a need to spend more time responding to the issues surrounding the 25,000 inmates being released each year than to locking up more and more people.

Spitzer's rhetoric echoes the tough on crime mantra that has become dominant over the last several decades, and he made it a priority to pass one of the country's harshest laws regarding sex offenders soon after taking office. But there are also signs that he is willing to challenge some of the pillars of the state's criminal justice policy, by rethinking sentencing, focusing on services and reentry, and even reducing the size of the overall prison system.

New York is not the only place that is changing course on policies regarding crime and punishment. But it is providing grist for advocates who want to move away from some of the dogma of the last several decades.

"We are the fastest shrinking prison system in the country by far and also happen to have the largest crime decline in the United States," said Michael Jacobson of Vera Institute of Justice, a criminal justice think tank. "Those are nice things to have go together. You can obviously have fewer people in prison and more public safety at the same time."

SHIFTING WINDS ON CRIME

Thirty-four years ago New York State was at the forefront of a national shift that laid the basis for a decades-long trend toward harsh sentencing, an official rejection of "coddling" prisoners with rehabilitative services and a surge in the prison population. Governor Nelson Rockefeller signed legislation creating mandatory minimum sentences for certain drug crimes in 1973, the first such laws in the country. These Rockefeller Drug Laws were the first salvo in the War on Drugs, a campaign during which the worst thing a public official could be was "soft on crime."

This philosophy on criminal justice was bipartisan. New York State's prison explosion came under Democratic governor Mario Cuomo. The prison population more than doubled under his watch, then continued to rise under Governor George Pataki. Between 1982 and 2000, New York State opened 38 prisons, more than in the previous 150 years.

In recent years, however, growth in the national prison population has slowed as crime rates became significantly lower than they were in the 1980s and 1990s. Meanwhile, hundreds of thousands of prisoners re-enter society every year. This has been especially true in New York, whose prison population has shrunk 12 percent since the peak in 1999 (although the most recent numbers show a slight uptick fueled by rising crime rates upstate).

This shift in the shape of the criminal justice system has also changed the way that public officials think about the issue. Lower crime rates have brought down the fever pitch on being tough on crime. There has been a bipartisan push, for example, to re-evaluate drug sentences that punish offenses related to crack cocaine much more harshly than those involving powder cocaine.

Reentry and education programs that were once seen as the bastion of softheaded liberals are now being championed by officials across the political spectrum. Senator Sam Brownback is a particularly striking example. Brownback is preparing a 2008 presidential run as the voice of the conservative wing of the Republican Party; in 1994 he called Newt Gingrich's Contract With America too moderate. But last year he spent a night in a prison and addressed inmates as he pressed for the passage of the Second Chance Act, a bill that aims to ease prisoners' re-entry into society.

A NEW APPROACH TO CRIMINAL JUSTICE IN NEW YORK?

People in the criminal justice field in New York felt the ground shifting from the moment Spitzer took office.

For years, the state has made millions of dollars from phone service between prisoners and their loved ones through a deal in which it charged a commission for each call. In 2005 alone the state made $16 million from these charges. These calls, meanwhile, have tripled in price since 1996. Spitzer's decision to have the state stop collecting its fee the will reduce the price of a 20-minute call from $6.20 to about $3.

In addition to the financial effect this will have on the families of prisoners, the symbolic import of Spitzer's move left advocates of a new approach to criminal justice feeling optimistic that more profound changes are on the way. While many are withholding judgment, they see indications that the state is changing course.

Sentencing

There have been calls to reform or repeal the Rockefeller Drug Laws since the administration of Mario Cuomo. Most other states have tempered their own drug sentencing laws. New York did not make any changes until 2005, and even then the reforms were seen as relatively minor.

Spitzer has called for a panel to broadly re-examine sentencing. It has yet to be seen whether the commission's recommendations will be, or whether they will have any teeth. But some see an opening to reconsider the inequities they see in the state's drug laws.

"We clearly think the Rockefeller Laws will be in there," said Jeffrion Aubrey, the head of the State Assembly's corrections committee.

Closing Prisons

In a clear indication that Spitzer sees permanent changes for the prison system, he has indicated that he wants to close some prisons.

"We acknowledge we've lost 8,100 inmates," said Brian Fischer, Spitzer's commissioner of corrections. "Perhaps we don't need so many prisons."

Advocates of closing prisons see such action both as recognition of lower prison populations and as a way to reallocate resources to other places within the criminal justice system.

"The more you can shrink the size of the system intelligently, the more money you have to reinvest in a variety of things, among those programs within prisons," said Jacobson of Vera. Some advocates suggest the money saved by reducing the size of the prison system could pay for experiments on programs aimed at helping people stay out of the penal system, saving progressively more money. Fischer declined to speculate on such a plan, saying, "you can't divert money you haven't saved yet."

Not everyone thinks closing prisons is a good idea, however. Strong opposition kept Pataki from doing so, even though he expressed interest.

Some say closing prisons is premature, given the recent increase in the number of inmates. But much of the argument against closing prisons revolves not around criminal justice, but around economics. The prison system is a $2.7 billion a year industry in New York State, and the economies of many struggling upstate communities rely on prisons. Furthermore, the job security of some upstate lawmakers would be threatened if prisons closed, since prisoners, wherever they came from originally, count as residents of the districts where they are incarcerated - even though they can't vote. Closing prisons would therefore shift political power away from the thinly populated regions where they operate.

In 2005, the state passed legislation that would make it harder to close prisons, requiring officials to give a year's notice, create an alternative use plan for the facility and find new jobs for displaced employees. The state corrections officers union, which makes large contributions to legislators' campaigns, says it opposes any closings.

Spitzer included a plan for a prison closing commission in his executive budget. The State Senate rejected the idea, however, and Aubrey says the Assembly will not push it. Aubrey says that Spitzer could create the commission by executive order, but it is not clear how this will play out.

After Prison

Regardless of what happens to the overall makeup of the system, tens of thousands of people leave New York's state prisons each year, many with little more than $40 and a bus ticket. Criminal justice experts agree that easing this transition is one of the largest challenges facing policymakers. Many believe the preparation should start the minute a prisoner enters the system.

Stanley Richards of the Fortune Society, an organization that helps prisoners readjust to life on the outside, said giving prisoners access to higher education while they are incarcerated is the best strategy for lowering recidivism. Richards spent more than one stint in prison himself; while serving a sentence for robbery he got his GED and a college degree in social work and has not been back to prison since. "It laid the foundation for me," he said.

Numerous studies show that education increases prisoners' changes of succeeding in the outside world. A report by the U.S. Department of Education found that those who attended school behind bars were 29 percent less likely to end up back in prison, and that "every dollar spent on education returned more than two dollars to the citizens in reduced prison costs."

Still, such programs face intense opposition, largely because of their symbolic significance: Many people do not think that money should be spent educating people who have committed crimes. In the mid-1990s both the federal and state governments cut off funding for higher education for prisoners. There has been no movement to reverse these actions in New York so far, but Aubrey says he hopes to have education programs back in the budget by next year.

CIVIL CONFINEMENT

Criminal justice issues have been overshadowed by Albany's big-ticket items: education, Medicaid, Spitzer's governing style. The exception has been a deal between the governor and the legislature to detain some sex offenders indefinitely, even after they have served out their sentences - a practice known as civil confinement.

Sex offenders have long been seen as particularly dangerous. Their crimes are considered to be among the most abhorrent of anti-social behaviors, and recidivism rates among them are high. Across the country, officials have sought ways to crack down, by requiring public notice when a sex offender moves into a neighborhood, or forcing some offenders to wear GPS devices for years after their release. Ohio is currently considering legislation to require the issuance of bright green license plates for convicted sex offenders, mirroring similar legislation in other states.

The first civil confinement legislation was passed in 1990 in Washington State, and many states have passed such laws since. In New York, the Republican-led Senate passed civil confinement legislation every year for more than a decade, only to have it shot down by the Democratic-led Assembly. Governor Pataki had gotten around this deadlock by using the state's mental hygiene laws to keep some sex offenders in mental hospitals as involuntary patients. But a state court rejected this practice last November.

In March, Spitzer signed a far-reaching law that he hopes will become a "national model." New York's law - the 20th in the country - ranks among the harshest. Under the law, mental health experts will identify offenders in prison who are candidates for civil confinement. These offenders will then be given a jury trial. Those who are deemed a continued risk will be transferred to treatment centers indefinitely, instead of being released. Prisoners who are eligible include those who were under 18 when they committed their crime and those who gave minors indecent material.

Civil confinement legislation is widely popular. The U.S. Supreme Court has upheld its constitutionality, on the basis that such programs constituted treatment, not punishment. But there is evidence that the programs are not providing treatment to help people re-enter society, but serving instead as ways to detain sex offenders indefinitely.

Advocates who finally feel that they are getting some traction in other areas of criminal justice say that they see the current atmosphere regarding sex offenders mirroring the earlier panic surrounding drug dealers.

"What's going to happen is sort of like drug laws. The net is going to get cast way too wide and too far. People will be afraid to step back from it for fear of political backlash," said Marsha Weissman of the Center for Community Alternatives, a group advocating alternates to incarceration. "It's easier to get people worked up into a frenzy than it is to take steps back."

 

Change of Venue In the Sean Bell Case


The aftermath of the fatal police shooting of Sean Bell in November both mirrors and contrasts with the case of Amadou Diallo, an unarmed African immigrant killed in the Bronx in 1999.

New York City was quickly gripped by the Diallo case, in which police officers shot at an unarmed man 41 times. A racially charged atmosphere led to protests that resulted in over 1,000 arrests, including those of several high-profile politicians. Lawyers for the police officers asked a state appeals court to move the trial to Albany. The court agreed. There, a jury in which eight of the twelve members were white acquitted the four white police officers of wrongdoing.

Bell's case is similar: 50 shots were fired at Bell and two friends, all unarmed. Protesters have raised questions of racial profiling and police brutality. And talk has turned to whether there will be a change of venue. Defense lawyers have not yet asked for a change of venue in this case, although they may still do so. They owe their clients the best defense possible, and if a change of venue would help the defense, they should make a case for it.

But many, including Mayor Michael Bloomberg, say that this trial should be held in New York City. I agree that moving the trial was a bad decision in the Diallo case, and it would be a bad decision in this case. Instead, there are obvious steps that can be taken to ensure a fair trial in Queens.

Changes of venue are rare. A lawyer who makes the application has to submit compelling reasons for it. Among the factors are convenience for witnesses or overheated publicity or religious or racial prejudice in an area that would convince a judge that a fair trial could not happen in the county where the crime has occurred.

Sometimes this is appropriate. Let's say you have a large rural county with a population of 10,000, and a case came up involving the local high school principal who had been there 40 years. Everybody might know that person, or even have a relationship with him or her. In that situation, a change of venue may be appropriate.

In most cases, though, the American justice system is based on the idea that if a crime occurs in a certain jurisdiction, the jury should come from the same area. A jury trial is supposed to be a trial by one's peers, such as their neighbors. Local juries are also preferable because, in theory, people in the same physical area form a community, and they have a particular interest in making sure that justice is served.

In New York, changing venue becomes an issue not because everyone personally knows the people involved, but because everyone knows about the case. Media attention does not preclude the possibility for a fair trial, however. New York City has always had high profile cases, from the 1930s when Tom Dewey was prosecuting Lucky Luciano to the big drug cases, to the organized crime in federal court, to the trial of the police in the Abner Louima case. All of those cases were tried in New York City without difficulty.

In the Diallo case, defense lawyers were of the opinion that given the publicity, circumstances, and emotions in the Bronx, their clients could not get a fair trial. Based on a poll of prospective jurors, the Supreme Court Appellate Division in New York agreed. The court never even made an attempt to seat an acceptable jury, even though they would have had to find only 12 jurors and six alternates out of the 1.3 million people living in the Bronx.

In addition to being unnecessary, the change of venue probably raised racial tensions even higher. The overwhelming majority of the judges who made the decision to move the trial were white, in an area where the majority of the population is black and Latino. As a result, a lot of minorities felt that the decision stunk to high heaven.

The Bell case raises many of the same issues.

One argument that has been made is that the jury pool was poisoned by Mayor Michael Bloomberg's early statement that the shooting seemed unacceptable. Public officials should give such opinions; that is just good leadership. To suggest that a jury will not be able to make up their own minds because of that is insulting to the intelligence of New Yorkers.

The other argument is that the general publicity and the politics around the case have made it too heated. But consider the alternatives. In Queens, you have a population of 2.2 million people from which to choose a jury. Yes, many people have been exposed to media coverage of the Bell case. But given the far reach of the news media, who hasn't heard of it? If the trial were moved out of Queens, it would likely take place in a jurisdiction where the jurors knew just as much about the case, and where there is smaller jury pool than Queens.

Short of changing the venue, there are things that can be done to safeguard a high-profile trial. State courts have sequestered juries during deliberations or throughout trials in the past, although for budgetary reasons that is rarely done today. The court could also bring in more potential jurors, and spend more time in jury selection.

In short, there is no reason that a fair and impartial jury cannot be selected in Queens. It might take a bit longer. But to administer justice, you take the time.

Kenneth Ramseur is an attorney in New York City who often works on police cases. He represented the family of Timothy Stansbury, who was killed by a police officer in 2004. 



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