Q. What do Albany, Ithaca and Syracuse have that New York City does not?
A. A Bill of Rights Resolution.
Immediately following the September 2001 acts of terrorism, with little public debate, the U.S. Congress enacted the USA Patriot Act, and then the Homeland Security Act, followed by new federal orders, rules and regulations. Critics say many of these contain provisions infringing on civil liberties and civil rights. In response, three states, Alaska, Hawaii and Vermont, and, as of this writing, 227 cities and towns including 13 in New York State, have adopted resolutions in support of individual Constitutional rights. On the anniversary of the adoption of the Bill of Rights (December 15, 1791), despite the urging of a coalition called the New York City Bill of Rights Defense Campaign, the City of New York failed to join the list.
"The protection of civil rights and civil liberties is essential to the well being of a free and democratic society," the proposed resolution begins. "The members of the Council of the City of New York believe that there is no inherent conflict between national security and the preservation of liberty. Americans can be both safe and free."
The Bill of Rights Resolution, or Resolution 909, was introduced last May by Councilmember Bill Perkins, and cosponsored by 32 out of 51 members of the council. But it failed to come to a vote; support eroded on the last possible day because many members felt that the public would misunderstand its passage coming so soon after the arrest of Saddam Hussein. Speaker Gifford Miller has promised to bring the resolution back before the full council in January.
"We, as a city of eight million, can make a statement about federal law that speaks out against aspects of the Patriot Act, certain injustices and violations of civil rights and civil liberties, of Americans and immigrants," Perkins said in a telephone interview "The NYC Council must take a stand and go on record against secret detentions without charges or access to counsel; spying on lawful political and religious speech; and ethnic and religious profiling."
Udi Ofer, an attorney with the New York Civil Liberties Union, adds that "fighting terrorism does not mean conceding our freedoms, and Resolution 909A gets that message across loud and clear."
The new federal legislation and companion policies vastly increase the investigatory and surveillance powers of law enforcement, making enormous changes in the areas of privacy, and the rights of persons investigated or accused, or merely under suspicion in connection with alleged terrorism or based upon ethnic, religious or political grounds. Law enforcement and intelligence agencies are given unprecedented access to personal medical, financial, library and educational records, as well as Internet habits, search warrants, electronic surveillance. The new legislation also authorizes indefinite incarceration without counsel of non-citizens and those designated as "enemy combatants."
David Cole, Georgetown University Law School professor of constitutional law and author of ENEMY ALIENS, said that the Bill of Rights is not limited to citizens, the way voting is.
Because 909a is a resolution rather than a statute or ordinance, it would not have the force of law, nor the power to undo what Congress has enacted. However, the resolution would require federal authorities to disclose the circumstances surrounding New Yorkers arrested or detained in connection with terrorism investigations. It would also express support for the rights of immigrants, and express opposition to investigations based on activity protected by the First Amendment; to racial, religious or ethnic profiling; to unreasonable camera surveillance and searches; and to secret detention without charges nor access to a lawyer. The resolution would have called upon federal, state and local officials and New York City agencies and institutions to affirm and protect civil rights and civil liberties.
"I think the movement to pass these resolutions is the single most effective tool to raise the consciousness about the importance of civil liberties in the USA that has been undertaken since September 11th," Professor Cole said. "There is a real shift in public attitudes about the importance of protecting civil liberties and it's not because of the courts or Congress or executive orders, but what people around the country are saying in adopting these resolutions."
The resolution, which was endorsed by most of New York City's congressional delegation, also urges New York's Senators Charles Schumer and Hillary Clinton to take leadership roles in preventing passage of the pending Domestic Security Enhancement Act, or Patriot II.
Emily Jane Goodman is a New York State Supreme Court Justice.
An ambitious new city plan to help ex-offenders find jobs, affordable housing and drug treatment probably wouldn't have meant much to Clifton Murrell -- not when he was at Rikers Island, serving a yearlong sentence on charges of possessing cocaine and weapons.
Murrell remembers getting a booklet outlining existing programs designed to help prisoners plan their future on the outside - how to line up work, stay sober, and so on. Murrell never signed up for help; planning for his future seemed laughable to him while he was incarcerated. "You're in survival mode," he said. Rikers Island is "not really a place of" -- he pauses, a slight smile on his face -- "rehabilitation."
But now Murrell is out, and along with a dozen men and women early on a Monday morning, he is seeking help in the offices of The Fortune Society, a non-profit that has been helping ex-offenders since 1967. Some in the office profess confidence that they will find the job or education they need to keep from returning to old ways; others, like Murrell, admit to nervousness about what their future holds with a checkered past behind them.
City officials must be a little nervous, too. They are banking on a new program, funded by a $7.5 million federal grant and unprecedented interagency efforts, to help ex-offenders stay straight.
"It's something I really applaud. It's long overdue, badly needed and a real start in the right direction," said JoAnne Page, executive director of The Fortune Society. The new city efforts, however, are very much a work-in-progress, and the challenges are many in helping ex-offenders find success.
NEEDY POPULATION
Rikers Island, a little more than half a square mile of land sitting in the East River between the Bronx and Queens, has been the site of the city prison since 1935. Today, Rikers Island consists of ten separate jails, which together house about 13,900 prisoners.
Most inmates are in for only a few weeks as they await court dates; the maximum stay at Rikers is one year. (Longer sentences are served in state prisons.) The new city program seeks to help prisoners getting out after at least three months.
The Rikers' population isn't filled with violent criminals, but it poses a huge challenge to city social services. According to The New York Times, 80 percent of inmates have drug problems, 30 percent have no home, and 15 percent are mentally ill. The city's Department of Correction "runs some of the most expensive housing in the city," said Page. It reportedly costs about $50,000 a year to house each prisoner, a cost widely publicized as justification for the expensive new city program.
Prisoners with AIDS and mental illness already get substantial city help, though it took a class action lawsuit to loosen city purse strings for mentally ill ex-offenders. A judge ruled against the city earlier this year in a lawsuit filed in 1999 alleging the city was negligent in helping mentally ill ex-offenders find treatment upon their release.
The city fought the lawsuit, known as the Brad H. lawsuit, and appealed a state trial court decision, but in January settled, agreeing to provide services.
"I think if the Brad H. lawsuit hadn't happened we'd be way farther behind," said Page.
Page and others, however, credit the new commissioner of the Department of Correction, Martin Horn, as a driving force behind the new program. Horn was appointed to the post in January by Mayor Michael Bloomberg after serving a one-year stint as Commissioner of the Department of Probation.
"I've known the commissioner of corrections for a long time," said Page. "I've got a lot of respect for him.” Horn has organized daylong meetings with officials from various city departments, with the Department of Homeless Services expected to play a big role in whatever solutions the city comes up with. But the details of the program remain largely unresolved. Of the three main areas of city efforts -- drug treatment, housing and jobs -- so far, only the jobs portion is up and running.
JOBS AND BEYOND
Existing employment services for ex-offenders have differing philosophies. For example, at the Fresh Start program, run by the Osborne Association, "the basic idea is to get them excited about something," said Leigh Owens, a case manager. That program offers mini-courses in computer journalism or culinary arts, which might seem overly ambitious but often result, according to Owens, in Microsoft certification or a food handler's license, all paid for by The Osborne Association.
That philosophy contrasts sharply, however, with the main goal of the new city jobs effort, which is basically a jobs creation program offering immediate work and immediate pay for ex-prisoners, including ferrying newly released offenders from Rikers Island directly to work sites scattered across the city.
The first day out might be a job lasting from 8 a.m. to 4 p.m.. Work includes grounds-keeping and litter removal on state highways in the Bronx and Queens, as well as work in and around housing projects in Upper Manhattan and Brooklyn such as whitewashing and clean-up. The work is typically done in groups of about six, with one on-site supervisor. Workers earn federal minimum wage but get a check at the end of each day, usually about $30.
The city program has two tracks, a two-week track and a six-week track, with ex-offenders with the least work history going on the six-week track. Ex-offenders will work four days a week, with one day of job counseling.
The idea is to try and simulate a real job situation, which means participants in the program might have long commute times. This way, former inmates can prove that they can show up for work on time every day, perhaps the most important trait employers look for when hiring new workers. The program includes an aggressive outreach program that seeks out employers willing to hire ex-offenders.
The Center for Employment Opportunities, a non-profit that has been offering similar programs for about two decades, won a three-year contract with the city to provide the job services. The method works, according to the organization, as in the past more than 60 percent of its "graduates" have been placed in full-time jobs within three months of finishing the program.
So far, only about 300 ex-prisoners have gone through the new city program, which began in August. The jobs program aims to help 2,800 prisoners by June, 2004 and about 5,000 prisoners once the program is at full-capacity. Expansion will likely involve more outdoor worksites.
WILL IT WORK?
Jobs are important, but they are only one piece of the puzzle when it comes to what experts call "discharge planning." Page notes that there are "so many things working against good discharge planning." Nationally, two out of every three ex-offenders are rearrested within three years of release.
Housing is a huge issue in New York, Page stressed, adding that the new city program must overcome existing laws and regulations targeting those found guilty of crimes. People that have certain criminal records can't live in public housing.
"Some of it is law and some of it is administrative practice," said Page, explaining that federal restrictions are really primarily about sex offenders and people who manufacture drugs. New York City has tighter guidelines, for example excluding ex-offenders from public housing for drug offenses.
"The consequences are devastating," Page said.
Owens agreed that environment plays a big role in whether or not an ex-con can stay an ex-con.
"One of the biggest problems is the surroundings, them going back into the same settings …it kind of negates your progress sometimes," said Owens.
Of course, attitudes of ex-offenders must be changed, as too many see their criminal record as an insurmountable obstacle in finding steady work. Who will hire an ex-con? But Owens, like many on staff, did his own stint behind bars, serving a yearlong sentence at Rikers Island for felony gun possession, he said. Another ex-prisoner is Maria Perez, a counselor at The Fortune Society for almost seven years. She first came to The Fortune Society because she was mandated to attend substance abuse counseling after serving time on a drug charge.
"We are living proof that it works," said Perez.
There have been no comprehensive studies that see whether recidivism rates change as a result of careful planning for discharged inmates, according to Nicholas Freudenberg, a professor and director of the Program in Urban Public Health at Hunter College. Freudenberg has worked with prisoners in city jails for more than a decade and serves on advisory boards to the new city program.
He sees the program as a good start, but also said it will need to be judged by the resources that are put into it, and can only be judged over time.
"In watching city government for 25 years," he said, "the city can lose track of a problem, especially when it's a complex problem that requires collaboration over different city agencies."
Keila Pulinario testified at her 1997 murder trial that Imagio Santana had raped her and then bragged about it to his friends. When she confronted him some days later about it, he laughed and threatened to rape her again. That is when she shot and killed him. She was convicted by a jury and is serving a sentence of 25 years to life, the maximum sentence, at Bedford Hills Correctional Facility.
The conviction was affirmed by two New York State appeals courts, but now, five and a half years after the trial, federal Judge Jack Weinstein of the United States District Court for the Eastern District of New York in Brooklyn has granted a writ of habeas corpus -- literally, “release the body” -- ordering New York authorities to either release or retry Pulinario.
The case offers yet another glimpse into the crime of rape, which is the most under-reported crime in the United States. According to Department of Justice figures, two thirds of all rapes are not reported. In New York City last year, according to the New York Police Department, 2,013 rapes were reported, which represents an increase, while most other crimes have decreased.
At the time of the shooting, Pulinario was a 21 year old victim of childhood sex abuse. She could neither read nor write, and had an I.Q. of 70. She had no criminal record, though she admitted she had used and sold drugs in the past. Santana, who had a sex offense charge pending involving a 14 year old girl, was a drug dealer and user; an autopsy identified the presence of heroin, cocaine, marijuana and methadone in his body.
While the prosecution’s theory was that there was no rape and that the defendant was guilty of murder in the second degree, the defense to the shooting was that Pulinario was raped and suffered rape trauma syndrome (RTS) and Post Traumatic Stress Disorder (PTSD). The defendant’s legal position was that she was not criminally responsible because of mental disease or defect; that an emotional disturbance caused the defendant’s actions. The defense also claimed that the shooting was a justified act of self-defense.
The defendant’s expert witness, Dr. Linda Ledray, a clinical psychologist, had been prepared to testify that Pulinario was frightened, severely depressed, and suicidal following the rape, and that shooting Santana was a reaction to extreme trauma. But two weeks into the trial, after her lawyer conceded that his client had indeed shot Santana, the district attorney objected to having psychologist Ledray testify.
The trial judge refused to allow this expert testimony as a way of penalizing her for having been untruthful when she had been interviewed by the prosecution’s psychiatrist. She had not disclosed to this psychiatrist that she had had a prior sexual relationship with Santana. (She had disclosed this earlier to officials when reporting the rape).
Federal Judge Weinstein found that this extreme penalty violated Pulinario’s constitutional rights to a fair trial. It prevented Pulinario’s trial counsel, John Ray, from presenting evidence that because of his client’s reaction to the rape she could not have formed the intent to kill, and that, in fear of Santana, she acted in self defense. Ledray would have testified that Pulinario’s conduct including the shooting, her delay in calling the police, the omissions in her statements to the state psychiatrist, her calm demeanor were completely consistent with trauma. The prosecution’s argument that she did not act traumatized was never explained to the jury as being part of the reaction to rape. “The defense was thoroughly sandbagged,” said Barry A. Bohrer, her pro bono counsel, who handled her federal appeal along with David Crow of the Legal Aid Society.
Judge Weinstein wrote, “studies have shown that a rape victim who has a prior sexual relationship with her attacker is less likely to be believed and she may be blamed for having brought the rape upon herself.” If allowed to testify, Ledray would have explained that it is typical of rape victims to blame themselves especially if they know their rapists. Ledray would have testified that it was the defendant’s extreme fear of Santana that caused her to shoot him. The jury would have heard that she lacked criminal responsibility by reason of mental disease or defect or suffered from an extreme emotional disturbance at the time of the shooting, or that she was justified in shooting this man as an act of self defense. The self defense argument was supported by evidence that an open knife was found near Santana’s body.
In addition to omitting the extent of her prior relationship with Santana in her interview with the prosecution’s psychiatrist, the defendant appeared too calm, the prosecution argued, which caused the doctor to conclude that she was a “malingerer,” or not really suffering from an psychiatric problems.
This, Judge Weinstein wrote, “permitted the prosecution to thoroughly exploit the jurors’ misconceptions about the conduct of the rape victim and argue, among other things, that petitioner’s seemingly calm demeanor after the rape and her untruths to the psychiatrist -- which appear to be not untypical of rape victims -- were evidence that she had not been raped.”
No decision has been made on a new trial or an appeal to the United States Court of Appeals for the 2nd Circuit in Foley Square.
Emily Jane Goodman is a New York State Supreme Court Justice.