Red Hook Community Justice Center

Do problem-solving courts prevent New Yorkers from receiving their basic constitutional rights? Are defendants forced to make a Faustian bargain, pleading guilty to avoid incarceration when they should be challenging the legality of their arrest?

Steve Zeidman, a professor at CUNY School of Law, thinks so. In “The Treatment Court Cottage Industry & Its Unintended Consequence,” published Oct. 27 by Gotham Gazette, Zeidman argues that problem-solving courts create a “mindset of cooperation among all the institutional players” that prevent defendants from receiving their basic due process rights.

As an illustrative example, Zeidman tells a story (presented as an individual case but actually a composite) of a defendant named “CB” who is arrested for drug possession but wants to fight his case because he believes he was set up by an undercover police officer. Instead of receiving vigorous defense from his attorney, he is pressured to plead guilty in order to enter a drug treatment court. When CB decides instead to fight the legality of his arrest, he is left at Rikers Island, while his case proceeds. To Zeidman, this injustice is repeated again and again with problem-solving courts. “Countless defendants,” Zeidman writes, “stated that their lawyers simply urged them, forcefully, to plead guilty.”

Zeidman’s critique raises several important questions. Why have problem-solving courts proliferated in New York in recent years? What impact have they had? And do they in fact undermine the fairness of the criminal justice system?

The answer to the first question is simple: because they provide a better brand of justice.

Take drug courts, for example. These programs link addicted defendants to treatment in lieu of incarceration. Drug courts are among the most well-researched interventions in the history of American criminal justice reform. A national study underwritten by the U.S. Department of Justice found reduced drug use and crime among drug court participants when compared to defendants who went through regular case processing.

Nor are positive findings restricted to drug courts: researchers have also documented solid results from community courts, re-entry courts, mental health courts, and other alternative-to-incarceration programs. The human implications are enormous – thousands of New Yorkers given a second (and third and fourth) chance in life. Thanks to problem-solving courts, these individuals have been linked to potentially transformative interventions, including mental health counseling, employment training, and youth development programs.

As Vincent Schiraldi and Judith A. Greene noted recently, the number of New York City residents behind bars declined by 31,120 between 1996 and 2014, even as the city’s population increased by one million and crime rates continued to fall.

New York’s problem-solving courts played an important role in this remarkable success. New York’s drug courts demonstrated to policymakers that treatment instead of incarceration wasn't just notionally the right thing to do -- it actually makes a difference in the lives of defendants. That’s why the New York court system has made such a large institutional investment in these programs under the stewardship of the last three state chief judges. And that’s why Governor David Paterson, when announcing the reform of the Rockefeller Drug Laws, chose to do so at the Brooklyn Treatment Court. Closer to home, the Mayor’s Office has trumpeted the role that problem-solving programs have played in reducing the Rikers population.

In the aggregate, problem-solving courts have achieved demonstrably better outcomes for the clients that Zeidman purports to represent. But they have done more than just this. The research also suggests that they have actually improved the process as well, increasing defendant perceptions of fairness.

Many researchers are coming to the conclusion that the active ingredient in problem-solving courts, the element that makes them work better than conventional courts, is procedural justice.

Procedural justice is an idea, developed by Yale Law School professor Tom Tyler, that suggests that how defendants are treated is just as important, if not more, than the outcome of their cases. By treating defendants with dignity and respect – and communicating with them in plain language – courts can not only improve public perceptions of justice, they can promote voluntary compliance with the law.

This idea was tested most recently in Red Hook, Brooklyn, where my agency helped to develop the Red Hook Community Justice Center in partnership with the court system, the DA’s Office, and local defense attorneys. In Red Hook, we have altered the atmospherics of the criminal justice system in some fundamental ways: eliminating the bars in holding cells, shrinking the height of the judge’s bench so that he can look most defendants in the eyes, and improving signage so that court users understand how to navigate the building. The Red Hook judge, Alex Calabrese, also takes pains to ensure that defendants understand their obligations to the court and praises participants when they succeed in alternative programs.

Researchers from the National Center for State Courts conducted an independent evaluation of the Red Hook justice center, tracking participants in the program over the course of three years. It found that Red Hook reduced recidivism among both juvenile and adult defendants. It also found that Red Hook had improved perceptions of justice – defendants preferred Red Hook to the regular criminal court. This quote from a defendant was typical:

I went to Brooklyn Criminal Court before Red Hook, horrible place, horrible. They should do a tour there, just so people could see. I wouldn't wish that place on my enemy. Red Hook is 100 times better...[The Red Hook judge] allows you to speak...he likes to interact and get your opinion. I don't get the feeling that he's one of those judges that looks down on people. To me, he's fair, I'll put it that way. The court officers treat you like a person too, not like that other court over there. I learned that there's two different types of ways that courts treat people. You have these obnoxious goons and then you have those that look at you like, ‘ok, you made a mistake.’

Zeidman may be wrong on the merits, but he raises important warnings. Defense attorneys need to play an active role in the development and operation of problem-solving courts. And the structure of these courts should not exacerbate the coercive nature of the criminal justice system.

But make no mistake: if we want to continue to reduce the use of incarceration while preserving public safety, we don’t need to halt problem-solving courts – we need to spread the lessons from these programs as far and as wide as we possibly can.

***
Greg Berman is the director of the Center for Court Innovation. On Twitter @GregBerman50 and @courtinnovation.

(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.

***
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.

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.

***
Heather Leibowitz, Esq. is the Director of Environment New York, a statewide advocacy organization. On Twitter @EnvNY.

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.

***
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.

FDR 1940 campaign button (image: @FDRLibrary)

The tumultuous 2016 presidential campaign will soon be over. This year may set a record for "October Surprises," unexpected revelations and events that grab media attention, jar the campaign, and alter candidates' prospects. It may be fitting that it is two candidates who call New York home having it out over these final, fitful days.

For Donald Trump, it has been a series of major shocks -- evidence that he did not pay federal income tax for at least several years, sexually aggressive comments on a 2005 recording, and a dozen women coming forward to claim he sexually harassed or assaulted them.

For Hillary Clinton, the unexpected developments have been milder, e.g., revelations of e-mails from her campaign staff about political tactics and speeches to business groups setting forth positions that seem to be at variance with some of her current campaign positions.

Another "surprise" of sorts was the news that came out on October 24 that premiums for health-plan coverage sold through HealthCare.gov, commonly known as Obamacare, will increase sharply next year. Clinton has endorsed Obamacare but vowed to fix it. Trump has promised to repeal it. And the FBI’s late October announcement of a new avenue in the investigation into her email server when Secretary of State has thrown yet another surprise into the campaign.

"October Surprises" can determine the outcome of a presidential race. In particular, they can sway undecided voters. Their impact can be particularly significant if they come late in the campaign, grab public attention, and leave the affected candidate with little time to react or respond.

In the 1940 presidential campaign, an "October Surprise" sprung by Democratic President Franklin D. Roosevelt in New York City demoralized his opponent, Republican Wendell Willkie, and altered voters' perceptions of him. It is one of several over the course of U.S. presidential history.

An Unprecedented, Shaky Republican Presidential Campaign
Willkie resembled Trump in some ways. A former Democrat and businessman without political experience, he had secured the nomination away from seasoned Republican leaders, including U.S. Senators Robert Taft and Arthur Vandenberg. He distrusted the Republican establishment, replaced the chair of the Republican National Committee with his own choice, Representative Joseph Martin (who was also minority leader in the House of Representatives), but kept the RNC at arm's length, running his campaign mostly through a campaign staff assembled by Russell Davenport, an editor on leave from Fortune magazine. Business interests and the business press supported Willkie.

But Wilkie’s campaign was erratic. He couldn't resist making quips and off-the-cuff comments to reporters that were sometimes at odds with his official campaign positions. They were somewhat comparable to Trump's tweets, which capture media attention. Republican regulars grew disenchanted with their candidate and many turned their backs on him, concentrating on Senate and House races. Willkie reciprocated, showing indifference or even contempt toward his adopted party. He didn't coordinate his campaign with his vice presidential running mate and party regular, Oregon Governor Charles McNary, somewhat analogous to the way that Trump and Mike Pence sometimes seem to be out of sync in this campaign.

Sometimes, Willkie parked his campaign train, the Willkie Special, on sidetracks outside of cities overnight to avoid having to share the stage at campaign rallies with Republican leaders. In an unfortunate remarked picked up by the press, he referred to some of his party's leaders as "boll weevils."

Willkie endorsed most of FDR's reform program known as the New Deal but claimed it cost too much and, as a businessman, he could administer it more efficiently than Roosevelt. Willkie had at first supported FDR's position of aiding Great Britain in its struggle against Germany at the beginning of what would evolve into World War II, including endorsing a deal the president made to exchange aging American destroyers for British bases. But toward the end of the campaign, Willkie reversed himself, said the deal should have had Congressional review and approval, and asserted that FDR would get the nation into the war. Willkie's inconsistent messages and his flip-flopping on the issue of aid to Britain undermined his campaign.

But as the election neared, Wilkie seemed to find new energy and determination. His attacks on the president became more pointed. He seemed to be picking up momentum and support.

FDR's Witty October Surprise
FDR's re-election campaign was humming along in the fall but needed an energizing boost by the end of October to ensure a victory over Willkie. The veteran New Yorker chose a New York audience at a political rally at the stellar New York public meeting place, Madison Square Garden, on the evening of October 28 to deliver the best speech of the campaign. In those days, Madison Square Garden was the most prominent forum in the nation, and the place for presidential candidates to give their most important speeches because of coverage by New York newspapers and other media.

The President was fired up after a day of campaigning. "I have had a wonderful day in New York, in all five boroughs," he began.

After discussing his record on domestic policy and national defense, he turned to ridicule Willkie and the Republicans for inconsistency on defense preparedness. "For almost seven years the Republican leaders in Congress kept on saying that I was placing too much emphasis on national defense...now with their eyes on the good old ballot box, they are charging that we have placed too little emphasis on national defense." It reminded him of the popular song "The Daring Young Man on the Flying Trapeze" as Republican politicians did "somersaults or trapeze acts" for political gain. It was a record of "timidity, of weakness, of short-sightedness," the president declared.

He cited Republican opposition to defense appropriation bills and singled out three Congressional reps in particular. One was Massachusetts Rep. and House Minority Leader Joseph Martin, who was also the chair of the Republican National Committee whom Willkie had installed. The other two were New Yorkers. One was Bruce Barton, who represented a district just north of the city, in Rockland and Westchester counties, and who was running for a seat in the U.S. Senate in 1940. The other was Hamilton Fish III. A scion of a politically active family -- his grandfather, the first Hamilton Fish, had been a New York governor, U.S. Senator, and Secretary of State -- Fish III represented FDR's home area, Dutchess County, and had been a particularly incessant critic.

It was safe and tempting to attack these two upstate New York Republicans before a primarily New York City audience. They made particularly good targets because they had also opposed many of Roosevelt's New Deal measures to combat the Depression as well as his foreign policy.

FDR gave their full names the first time he mentioned them in the speech but, the second time, shortened it to the euphonious term "Martin, Barton, and Fish!" The third time, the crowd shouted the three names with him. In Boston a few nights later, he returned to the theme of Republican obstructionism. Each time the president mentioned Martin the crowd completed the chant with "Barton and Fish!"

"Martin, Barton and Fish!" Throws Willkie Off Stride
Democrats across the nation took up the rollicking chant of "Martin, Barton and Fish!" in the closing days of the campaign.

Martin did not respond. But the New York targets of FDR's jab did. Barton told an audience the day after FDR's speech that "the New Deal has concentrated every effort to make you forget its failure at home by focusing your thoughts and fears on the tragic events abroad."

Fish fumed in a November 1 letter to The New York Times that "the Democratic Party has become the party of intervention and war and the Republican Party that of nationalism, national unity" and that FDR's "reckless and provocative statements" would get the nation into the war. But their protests did little good. FDR had sprung the "Martin, Barton and Fish!" slogan too late for their responses to get traction in the media.

It was an immensely clever political move. FDR had pivoted from attacking Willkie to tying him to unpopular positions leaders in his party had taken. Willkie really had no responsibility for what they had espoused. He knew Martin but there is no evidence he had even met Barton and Fish. But FDR's new political tack threw his campaign off stride.

Like FDR, Willkie chose to finish his campaign in New York, at Madison Square Garden, on November 2. It was his last chance to connect with the electorate. But the candidate was weary by then, his audience was subdued, and his message was bland.

He indicated agreement with much of the New Deal but criticized FDR for doubling the national debt to pay for it. FDR's programs had added too many bureaus, boards, and commissions, constituting "a deadweight structure of bureaucracy."

"Not once has he stimulated the expansion of enterprise or of American industry," Willkie asserted, and in fact FDR had fanned the flames of public distrust by criticizing the business community for its opposition to taxes and what it saw as overregulation.

FDR's lust for a third term as president was dangerous. Willkie did not offer concrete proposals or a pervasive rationale for voting for him as the alternative, though.

Willkie praised Martin for his work on the presidential campaign but did not refer to Martin's campaign for reelection to Congress in Massachusetts. Barton and Fish were not mentioned.

The candidate did not address FDR's assertion that Willkie's party was obstructionist and even unpatriotic because of its opposition to military preparedness.

Willkie, disheartened by the president's clever campaign tactic, had given up hope of winning. He later remarked that when he heard the president hang the obstructionist votes of Martin, Barton, and Fish on him, he knew he would lose the election.

He did lose on Election Day. Of course, many factors contributed to FDR's victory. A proven leader who was popular with Americans, FDR probably would have won anyway, but the president's "Martin, Barton, and Fish!" ploy helped sink Willkie's candidacy by finding a new way to ridicule and attack it -- in effect, through guilt by association.

It also helped the Democrats retain majorities in both houses of Congress.

Beyond The ‘October Surprise’
Willkie joined a New York City law firm, served as an informal diplomat for FDR in the early years of World War II, and tried again for the Republican nomination in 1944, but found little support. He died later that year.

As for Martin, Barton, and Fish? Martin was easily re-elected to the House, serving until 1966, including two years as Speaker. Barton lost his bid for the Senate. He returned to work at a public relations and marketing firm he had helped establish, Batten, Barton, Durstine & Osborn. (The firm, now called BBDO, still operates in New York City). Fish coasted to victory and stayed in Congress until 1945.

The whole episode shows the power of a clever turn of phrase to refine or even redirect the political debate. For voters worried about whether the nation could continue to climb out of the Great Depression and about the prospects of being drawn into war, the witty phrase from their good-natured, confident president was reassuring.

Distilling a campaign into a catchy new slogan in the last weeks of the contest is mild compared to some of the harsh October Surprises we have had his year. There may even be more to come, e.g., more revelations about Russian interference in the campaign. Sometimes, October Surprises mostly devolve into footnotes in history books. But in other cases, they can tip a close race one way or another.

***
Dr. Bruce W. Dearstyne's latest book is The Spirit of New York: Defining Events in the Empire State's History, published in 2015 by SUNY Press.

PPNYC celebrates 100 years with First Lady McCray

One hundred years ago, in 1916, Planned Parenthood of New York City (PPNYC) opened in Brownsville, Brooklyn as a small birth control clinic. Since then, PPNYC has grown to five health centers—one in each borough—and provides sexual and reproductive health care services and information to more than 64,000 New Yorkers each year, and reaches another 25,000 through our extensive sex education programs.

Incredible gains have been made over the past century. PPNYC has been at the forefront of increasing access to birth control, ensuring the availability of safe and legal abortion, and getting coverage for preventive care and birth control under the Affordable Care Act. Today, we continue to be a champion for access to sexual and reproductive health care, improving sexuality education, and advocating for policies that make the lives of New Yorkers better every day.

But even with all the progress we’ve made, we are only just getting started. As the city has grown, we’ve changed and adapted as the communities we serve have changed. Our goal is to expand our services to better meet the needs of all New Yorkers—including men, young adults, gender nonconforming people, and the LGBTQ community.

Today, PPNYC continues to serve Brownsville not as a stand-alone clinic, but through Project Street Beat, an innovative street-based outreach program that provides HIV prevention services and counseling. The Project Street Beat - Keith Haring Foundation Mobile Medical Unit delivers care to some of our city’s most vulnerable individuals by meeting them right in their own community. This year, PPNYC is rolling out new services to provide more care to the communities we serve. In August, we began offering PrEP at our health centers, a daily pill that helps prevent HIV. By the end of 2016, we’ll be offering vasectomies and transgender hormone therapy.

Providing welcoming and trans-affirming care is essential to meet our goal of providing the best possible health care to all New Yorkers. And as always, our services are offered to everyone who comes through our doors—regardless of immigration status or ability to pay.

Along with our new services, our Education Department is also expanding and developing innovative strategies to reach even more New Yorkers, including the launch of a new program called Sexuality Education for Adults. Additionally, Promotores de Salud, PPNYC’s initiative that trains neighborhood residents to serve as peer health educators in the community, will partner with Project Street Beat to offer medical interpreting alongside sexual and reproductive health services.

PPNYC’s work is grounded in the idea that reproductive health and rights are closely intertwined with social justice issues. Many of the communities that we serve experience systemic oppressions dictated by race, gender, ethnicity, income, immigration status, ability, and more. We work alongside community-based organizations and reproductive justice organizations in the fight for a world where access to health care and rights are a reality for all people.

We are determined to fight for this goal now and always, and we are committed to improving the lives of New Yorkers—no matter what. We are 100 years strong and getting stronger. Our vision has always been to work toward a world where people have full control of their bodies and destinies. As we commemorate the extraordinary achievements made over our first 100 years, we are proud to launch our second century with as much passion, courage and conviction as our first.

***
Joan Malin is President and CEO of Planned Parenthood of New York City.

Sen. Todd Kaminsky, the author (photo: @toddkaminsky)

The headline is the same. The names are interchangeable.

And yet, the laws and attitudes stay the same.

The most recent indictment of Nassau County Executive Ed Mangano and Oyster Bay Supervisor John Venditto should serve as a wakeup call to elected officials and taxpayers alike. The corruption within our governments is pervasive and isn’t going anywhere until we implement comprehensive ethics reform. No one is above the law.

Having put away both corrupt Democrats and Republicans as a former federal corruption prosecutor, I’ve seen time and again how politicians abuse the public’s trust for personal gain. Voters feel betrayed, but aren’t surprised at the same time. As the list of convicted elected officials grows, we have come to a decisive moment: continue operating as ‘business as usual,’ or build an ethical and clean government with trustworthy leaders that will fairly represent taxpayers’ interests.

We can’t keep putting a band-aid on the problem. In June, my colleagues and I voted to strip convicted politicians of their pensions and will have to vote again on the issue when we return to Albany. That is an important, yet small step forward, and we must do more. Here’s what I propose:

First, we must ban lawmakers from receiving outside income. Being a legislator is my only job because I believe that 100% of my attention should be focused on how I can improve my constituents’ lives and the communities that I represent. This is of the utmost priority. Conflicts of interest between legislative duties and an outside job were central to convictions of Sheldon Silver, Pedro Espada, and others. The fact that a company could hire a legislator to conduct business on their behalf and then they could turn around and vote on legislation that directly impacts that business is completely absurd.

Second, we need to close the loophole that allows public officials to accept gifts or benefits simply because of that person’s official position. We can easily combat the corruption that has infiltrated Albany by eliminating the influence of money on politicians. The recent McDonnell v. The United States decision dramatically narrowed federal bribery statutes and now effectively allows your public officials to accept a lavish gift as long as it’s not connected to a promise to perform an official act. This is the same decision which has given Dean Skelos the opportunity to appeal his conviction. Let’s be real: this decision allows anyone to have a lawmaker on retainer and it’s simply unacceptable. I’ve introduced legislation to close this ‘free money’ loophole because corrupt special interests have held undue influence on Albany for far too long.

We also need to give local District Attorneys more tools to investigate these abuses of power by making it a crime to lie to a DA, ADA or their investigators. Have you ever wondered why big corruption cases aren’t brought by local District Attorneys? It’s because they don’t have enough power to do so. We cannot continue to rely on federal prosecutors and investigators to clean up our governments.

Third, we must implement changes to our municipal contracting laws. As an Assembly member, I proposed legislation to mandate municipalities to create a vendor responsibility system to vet even modestly-sized contracts. It’s time to open the windows and let the sun shine on contract awards. Ending the era of ‘pay to play’ politics should be a top priority at all levels of government because it is one of most the egregious violations of the public’s trust.

Finally, it’s time to take control over our elections and close campaign finance loopholes that allow dark money to eclipse the voters’ will. This session, I introduced a bill to reduce contribution limits from a party or county campaign committee to a candidate campaign to $15,000, and to decouple the contribution limit from the consumer price index which has allowed it to inflate to $109,600. This bill also requires LLC contributions to be counted toward an individual’s contribution limit. And without a doubt, we must close the LLC loophole.

These proposals will go a long way in producing a more ethical government and restoring the public’s confidence in that government. This shouldn’t be a partisan issue –if we continue to sweep real reform under the rug, corrupt politicians will continue to tarnish our democracy and abuse taxpayers’ trust. I look forward to working with anyone - Democrats, Republicans, and independents alike - to clean up our government once and for all.

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State Senator Todd Kaminsky represents Long Island's South Shore and is a former federal prosecutor of public corruption cases. On Twitter @toddkaminsky.

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?”

***
Steve Zeidman is a professor of law at CUNY School of Law. On Twitter @SteveZeidman. CB is a public defender in New York City.

"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.

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.