Gotham Gazette

The Place for New York Policy and politics

Topics

Do Welfare Workers Deserve Workplace Protection?


Are welfare recipients in New York City's work program protected from workplace discrimination?

"The next phase of welfare reform . . . should focus on . . . ensuring that those. . . who have already made the transition from welfare to work, stay employed or, better yet, move up the career ladder," Mayor Michael Bloomberg has said.

On February 5, 2003, the United States Court of Appeals for the Second Circuit, the federal appeals court, heard oral arguments in a case that could have a major effect on whether Bloomberg's idea becomes a reality. The case centers on whether individuals who are required to work in a government agency in order to receive their welfare benefits are entitled to protection against workplace discrimination. The decision will affect approximately 130,000 welfare recipients a year, who work in New York City agencies, and will determine what, if any, protections they have from being sexually harassed, racially discriminated against or subject to other workplace discrimination.

THE WORK EXPERIENCE PROGRAM

The federal and state governments require New York City to provide welfare to anyone who, according to the state law, is "unable to provide for himself." The city is also mandated to develop a system to place in a work program 50 percent of single parents and 90 percent of adults who are in two-parent families New York City's work program, Work Experience Program (WEP), requires welfare recipients to work at various city agencies in return for their welfare benefits. For every hour the participants work they earn the minimum wage, paid to them via their welfare benefit. Typical program positions are entry-level office assistants and painting and cleaning public property.

UNITED STATES V. CITY OF NEW YORK

The case that was argued on February 5 involved five women in the work program. They alleged that their supervisors sexually harassed them, discriminated against them or retaliated against them for complaining about the discrimination. The women sued under the federal Civil Rights Act of 1964, which prohibits workplace discrimination when the discrimination involves those legally defined as an "employee" and "employer."

Several of the women also filed a separate suit in the state court. The primary difference in the state court cases was that the women claimed discrimination under the state and city anti-discrimination laws, instead of the federal statute.

On March 8, 2002, U.S. District Court Judge Robert C. Casey dismissed the federal case. Judge Casey decided that the women were not "employees" of New York City, even though they were paid for their work at the agencies and the agencies set their hours, schedule and where they would work. Because the women were not "hired" by the agencies and did not receive sick pay, health insurance, vacation time, life insurance and other benefits, Judge Casey ruled they were not "employees."

Several months later, New York County Supreme Court Justice Michael D. Stallman dismissed the state court case. Believing he was restricted by Judge Casey's decision, Justice Stallman ruled that Work Experience Program workers were not "employees" and therefore, were not entitled to protection under the state and city anti-discrimination laws. Justice Stallman stated, "WEP was intended to give public assistance recipients work experience and to provide the public with some useful service as a condition of continued receipt of public assistance. Nothing in the program either creates an employment relationship or was intended to create an employment relationship."

Welfare recipients' sole recourse for alleged harassment or discrimination was not to file a lawsuit, but rather, Justice Stallman concluded, to file a grievance with the city Human Resources Administration.

On May 3, 2002, the women appealed Judge Casey's decision in the federal case to the federal appellate court and on September 19, 2002, the women filed a notice of appeal to appeal the state case.

WHY THE CASE IS IMPORTANT

The decision as to whether Work Experience Program participants are entitled to protections under the anti-discrimination laws will have substantial implications for the 130,000 individuals a year who participate in the program.

The mayor has noted that "since requiring people to work is the best way to help them move to self-sufficiency, everyone who can work should work if they want to receive public assistance."

Achieving "self-sufficiency" can only be attained if work and the workplace foster non-discriminatory practices and protect workers. It is unlikely that the program will lead to "self-sufficiency" or economic independence for anyone who is subjected to groping, howling, cat-calling, or racial or religious slurs.

Justice Stallman noted that program participants, like all city employees, could file a disciplinary grievance with the Human Resources Administration. The city's grievance procedures are focused on disciplining the individual charged with committing the harassment or discrimination and addressing their continued employment with the city. The grievance procedures do not allow for compensation or other relief to the victim of the harassment. In contrast, the anti-discrimination laws are designed to compensate victims for the pain, suffering and mental anguish they suffer from being harassed or discriminated against in the workplace.

People should not be subjected to the embarrassment, fear or other injury inflicted by discriminatory practices simply by seeking welfare benefits. Providing the protections of the anti-discrimination laws will, in theory, deter future discrimination.

Finally, the decision sets a peculiar precedent for supervisors. Essentially, supervisors can treat equal positions differently. Although supervisors do not have carte blanche to discriminate against Work Experience Program workers, they do at least theoretically risk much less by discriminating against these workers than against other city "employees."

The federal appeals court must now decide whether the Work Experience Program provides a serious point of transition from welfare to work, with the protections that other city workers have.

Jonathan Rosenbloom is the associate director of the Center for New York City Law At New York Law School

 

The District Attorney vs. the Police


The narrator of the NBC crime drama Law & Order has it right every Wednesday evening when he says, "In the criminal justice system the people are represented by two separate yet equally important groups-the police who investigate crime and the district attorneys who prosecute the offenders." Now these two separate yet equally important groups are virtually at war with one another over the Central Park Jogger case.

When in January, 2002, imprisoned murderer and serial rapist Matias Reyes confessed to a corrections officer that he and he alone had assaulted and raped the jogger on April 19, 1989, he launched the two agencies on separate missions to find out what really happened that night. Yet each agency's search for the truth has been hampered by its parallel search for self-vindication.

And while the two agencies may theoretically be equally important in the justice system, the D.A.'s office can outmaneuver the police department when it chooses, relegating detectives to secondary importance or even excluding them altogether. The Manhattan D.A.'s office has done this repeatedly since it reopened the jogger investigation some time in the winter of 2002. (Like so many important details, the precise date has not been given publicly.)

The district attorney's office has maintained command of both the investigation and the distribution of information to the media, with the result that the New York Times in particular has often published early, sympathetic interpretations of the office's austerely phrased, seemingly neutral legal documents.

The district attorney's 58-page filing in state Supreme Court on Dec. 5, 2002-known as the Ryan Affirmation after Assistant District Attorney Nancy Ryan who signed it-recommended that the court vacate all convictions of the five defendants. The specific legal issue in the defendants' motions was: Does the newly discovered evidence create a probability that, if the new evidence been received at trial, it would have resulted in a verdict more favorable to the defendants on one or more charges? The yes conclusion was nearly incontestable. But almost everything else about the case remains in dispute.

The January 27 release of a report by a three-man panel appointed by Police Commissioner Raymond Kelly is a not completely successful attempt by the Police Department to put forward a different analysis.

THE POLICE PANEL'S SCENARIO

The panel attacks Reyes's claim that he acted alone, pointing out that many commentators have assumed only two possibilities-that either Reyes acted alone or that the defendants did. Instead, it says, "Our examination of the facts leads us to suggest that there is an alternative theory of the attack upon the jogger, that both the defendants and Reyes assaulted her, perhaps successively."

The panel suggests that the defendants might have "abandoned the jogger after mauling her in the hit-and-run style typical of their rampage." Reyes might have followed them, attacking her brutally. The "vicious outrages inflicted upon the jogger" would have been more characteristic of Reyes than of the defendants, says the panel. Indeed, the "defendants' lesser role would in fact be consistent with their confessions."

The untitled report is signed at the end by the two outside lawyers-Michael Armstrong and Jules Martin-and by the deputy police commissioner for legal matters, Stephen Hammerman. Kelly's hope in appointing the panel, according to the New York Times, was that the presence of distinguished outsiders would ensure a thorough investigation not hobbled by institutional self-protection. Armstrong, a former Queens district attorney and federal prosecutor, is a partner in the firm of Kronish Lieb Weiner & Hellman. In the early 1970s, he was chief counsel to the Knapp Commission, whose investigation of police corruption had been instigated by Frank Serpico's well-known charges. Martin, a police officer for 29 years who retired in 1997 as chief of the department's Housing Bureau, is now an assistant vice president at New York University.

The panel says the district attorney's office excluded the police from its investigation last year, refusing to give detectives access to interviews with Reyes-even after the fact-and refusing to follow up on leads the police regarded as promising. Even though the D.A.'s office spent hours interviewing Reyes, police were allowed only to view one videotaped interview and to listen to one brief audio recording of another interview. And since no hearing was held on the defendants' motion to vacate, no cross-examination of Reyes under oath was ever conducted in public. Nor were the interviews ever released. The panel also complains that inmates who claimed to have been told of the assaults by Reyes were never interviewed by anyone.

Even if the district attorney had legitimate reasons for excluding the police from interviews, what possible reason could the office have for not taping all communication with Reyes and making those tapes available to the NYPD? How could the search for truth be furthered by withholding the interviews? And why not interview the inmates who claimed Reyes had given them accounts of the assault? The Ryan Affirmation seeks to give Reyes substantial credence, saying, "Information Reyes has provided about himself and his history has consistently proven to be reliable and accurate, both about matters related to the case and matters with no direct connection to it. Reyes has also been candid, even with respect to aspects of his history that might cast doubt on his credibility."

REYES'S CLAIM OF ACTING ALONE

Media reports have asserted that forensic evidence confirmed Reyes's claim of acting alone, but this is not true. Much of the forensic evidence was contaminated in the intervening years-sloppy handling of evidence being yet another local scandal-and the intact evidence was inconclusive. Meanwhile, members of the jogger's medical team had come forward to say that her wounds were inconsistent with a single assailant. The Ryan Affirmation ignored their testimony.

The only evidence that Reyes acted alone is his own testimony, which makes his credibility important. (He was not given a polygraph examination. "Perhaps," says the panel, "he is thought to be too unstable to allow for a meaningful test.") All professional assessments of him over the years-including by his own attorney-have doubted his honesty and stability.

Nonetheless, the district accepts Reyes's startlingly unlikely assertion that he was moved to come forward because of his "positive experiences" in prison, where he was treated "decently despite the nature of his criminal history." He also said he felt guilty on seeing the jogger defendant Kharey Wise, a fellow inmate in the Auburn Correctional Facility, knowing that he had committed the crime for which Wise was imprisoned.

The panel offers a more convincing motivation than altruism for Reyes's confession: He received a favorable prison assignment. Saying that he was afraid of Wise, Reyes demanded and received a transfer back to his previous facility, the Clinton Assessment Programs Prepared Unit, from which he had been expelled in 2001 for fighting. The unit mainly houses notorious or famous inmates who might be targets for inmate abuse. It has only 260 beds and one of the lowest inmate/correction officer ratios in the system. Reyes had spent nine of his thirteen years in prison at unit and knew well its relative pleasantness and safety. Now he is back there. Said the panel, "By claiming that he had committed the crime for which others were convicted and served time, he put himself in the position of needing protection from the defendants or their friends in prison."

D.A.'S OFFICE DENIES POLICE PANEL'S THEORY

In hearings before the City Council on January 29, Manhattan Chief Assistant District Attorney James Kindler denied there was any evidence to support the panel's alternative theory that the five original defendants participated in the attack on the jogger. Said Kindler: "The theory that Reyes may have come along later, it is a theory, there is no evidence to support it."

Kindler denied that the district attorney had withheld information from the police or other officials. But even as he was speaking his former colleague, Linda Fairstein, who had headed the Sex Crimes Unit during the prosecution of the case, submitted a written statement saying the D.A.'s office had refused to interview her. Outspoken in her anger, Fairstein said recently to NY1: "The untested word of a psychopathic murderer who raped four other women, killed one in the presence of her . . . children and raped his mother--he now says he did this alone and that's untested in a court of law?"

The debate about whether Reyes did it alone or not continued after the City Council hearings with yet another piece by the New York Times presenting newly released inside information-what it calls "a little-noted documentary record" of the first moments of the attack. A crime scene detective had measured and photographed the drag marks left by the jogger's body--marks consistent with a single attacker, according to unnamed prosecutors.

POLICE PANEL REVEALS POLICE INCOMPETENCE

The Police Department panel seems oddly oblivious to the level of police incompetence exposed by its recommendations. It recommends improved accountability and control of evidence, for example, noting that the Manhattan Chief of Detectives had taken home the only copies of Polaroid pictures of the jogger, thereby forcing the prosecutor to question the suspects without them. Not very reassuringly the panel says this does not "appear to be a systemic problem and is unlikely to recur."

The panel recommends better forensic management, noting that the pants of one defendant were put on the precinct floor while being photographed. The Ryan Affirmation essentially says that most of the forensic evidence was lost or contaminated over the years. The police panel says this is unlikely to happen today because of NYPD reforms in 1995.

Most shocking, however, are the panel's casual comments about the failure of the police and prosecutors to follow up on a vicious rape two days before the jogger rape. "There has been some criticism directed at the department," it notes, "for the failure to connect the April 17, 1989 rape to the April 19, 1989 attack on the jogger. Reyes was identified as a possible suspect in the April 17, 1989 rape, and was later arrested, in August, 1989, for another rape and murder to which he ultimately pleaded guilty. If, at the time, it had occurred to either the police or the prosecutors that the April 19 rape might have been committed by the same individual that had raped someone on April 17, it would have been simple to compare the DNA recovered from the jogger against that of the defendant they now had in custody. But, the police and the District Attorney's office had a set of confessions and were satisfied that the defendants perpetrated the attack on the jogger. They had no cause to search for links to other cases until DNA tests in November, 1989, indicated that the semen from the jogger did not match any of the defendants. Today's case review methods would substantially increase the probability of identifying cases with seemingly very few similarities."

In other words, because the police and the D.A. "were satisfied" with the confessions from the defendants they had no cause to search for links to any other cases. What is horribly clear today is that neither the police nor the district attorney was paying serious attention to any other cases, even as brutal rapes in the Central Park area continued.

Without saying a critical word about the police or the D.A.'s office-both equally culpable in these investigations-the Ryan Affirmation exposes a pattern of bureaucratic indifference by listing some of Reyes's known rapes followed by the notation "marked closed." These cases were not marked closed because they were solved-they were marked closed because the investigators decided not to pursue them in the summer of 1989 even as Reyes roamed the streets raping and murdering. (And these were not the only rapes disregarded by investigators. The woman who was raped and thrown down an elevator shaft in Harlem the same week as the Central Park assault was shamefully ignored.)

On June 11, 1989, Reyes raped, stabbed and tried to drown a 24-year-old woman in her apartment on 116th Street. On June 14 he raped and stabbed to death a pregnant woman in her apartment at 97th and Madison while her three children were locked in the next room. On July 19 he raped and robbed a 20-year-old woman in her apartment on 95th Street and Madison, also cutting her eyes. On July 27, 1989, he robbed and tried to rape a woman in the hallway of a building on 95th and Lexington but was stopped by neighbors. On August 5 he raped and robbed a 24-year-old woman in her apartment on 91st Street-and was captured by her neighbors. That is how his crime spree ended-by New Yorkers capturing him, not by police work or district attorney investigation.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

City Journal


In The News:

For the best conservative, feel-good take on crime in New York, check out City Journal, published quarterly by the think-tank The Manhattan Institute. The Spring and Summer issues paint a sunny picture of New York's progression from the Dark Ages (pre-1995) to Triumph (the Present). The writers attribute our safe streets and safe prisons to essentially the same paradigm shift in management -- decentralizing, giving more opportunity and responsibility to local command, and providing detailed statistics on criminal activity to help local officials.

Whether you're reading for confirmation of your worldview or to find an infuriating strawman, City Journal is a valuable resource.

Jerome Sounds Off:

Steve Schwalb is one happy businessman. The CEO of Federal Prison Industries watched his company bring in $540 million in revenue last year. His workers, prisoners serving sentences in 94 federal prisons, earn 23 cents to $1.15 an hour making electronic parts, clothes, and furniture.

The future looks even better. The federal prison population is expected to reach 200,000 by the year 2006; Schwalb will employ 30,000 of these inmates. Mirroring the shifts that have transformed the low-wage job market on the outside, FPI workers have begun performing data entry and other service-oriented tasks. Now Congress has proposed that FPI be allowed to expand beyond government contracts to offer their services to private companies.

Supporters of the proposed bill, the Prison Industries Reform Act, say that jobs lost to overseas sweatshops can be snatched back by prison labor and that these jobs will in turn help lower high recidivism rates. But you can hear these politicians and their business backers rubbing their hands: a growing, cheap workforce -- behind bars! Even ignoring the irony of undercutting sweatshop wages, the supposed benefit of lowered recidivism is a crock. Will the "work experience" gained from a $1 an hour data-entry job go very far on the outside? And what happens when companies start to replace their workers (say, for instance, unionized workers making a decent salary with benefits) with inmate-power? At this rate, it's only a matter of time before someone suggests that inner city public school kids devote one period a day to stuffing envelopes.

Jerome Chou is a freelance writer. He works part-time interviewing recently released ex-offenders about their re-entry into society. 

Civilian Complaint Review Boards


THE LOWDOWN:

It has been a winter of reckoning for the NYPD. Last December, Justin Volpe pleaded guilty to sodomizing Abner Louima. A second trial in the Louima case is drawing to a close in Brooklyn, while in Albany a jury debates the sentence for the officers charged with the murder of Amadou Diallo.

Whatever the fates of these individual officers may be, the larger question remains: How do you police the police? For decades, the NYPD relied on an internal review process run by police officials and investigators. Responding to public pressure, the City Council in 1993 established the Civilian Complaint Review Board (CCRB), the first police oversight agency in NYC to be independent of the NYPD.

In addition to reviewing police policies, the CCRB's main task is to respond to complaints. More than 100 investigators interview complainants, witnesses, and police officers; subpoena evidence from the police department; and submit reports to a thirteen-member board. These members (all appointed by the Mayor) are empowered to recommend punishment to the Commissioner, who makes final decisions in each case. The board itself cannot mete out any punishment.

You'd be hard pressed to find a more beleaguered city agency than the CCRB, or one with a more difficult mission. In its first five years, the review board received more than 25,000 complaints of police misconduct. To investigate these charges, CCRB staff must contend not only with the infamous "blue wall of silence," but also with opposition from the Commissioner's Office and City Hall.

Since the Diallo and Louima incidents, the Mayor and Commissioner Safir have publicly softened their stance, and an increased budget ($7.4 million in 1999, up more than $2 million from 1998) has allowed the CCRB to bolster its staff. But recent reports from the NYCLU highlight the agency's shortcomings: since 1996, only about 1 in 4 cases of misconduct substantiated by the CCRB resulted in punishment, and no record exists for exactly what punishment was handed down.

Across the country, civilian review boards have struggled to establish a strong watchdog presence. In New York's current political climate, that may simply be too much to ask.

BEHIND THE SCENES:

Gotham Gazette reporter Jerome Chou on the inner workings of the CCRB, and why as an oversight mechanism, it's doomed to mediocrity.

Is there police brutality in your neighborhood?

White

Black

Latino

Other

Total

Yes

23.7%

44.6%

35.6%

32.7%

28.2%

No

66.2%

47.6%

57.0%

56.4%

62.1%

Don't Know

10.2%

7.8%

7.4%

10.9%

9.6%

Total Respondents

1662

231

149

101

1643

(From data collected in NYC during the 1997 mayoral elections period by Columbia University's School of International and Public Affairs. See their report "Racial and Ethnic and Urban/Suburban Differences in Public Opinion and Policy Priorities: Crime, Drugs, and Justice"
http://sipa.columbia.edu/CURP/resources/reports/racialdiff/tables.html

THE BOARD:

CCRB homepage - Contains bare bones information about the agency and instructions on filing a complaint form (including an online version), though little else. More useful are the extremely informative semiannual reports (since 1998) and transcripts from monthly board meetings.

COMPLAINANTS:

Mayor Giuliani - At this September 1997 press conference, even as he announced additional funding and personnel for CCRB, the Mayor reiterated his support for internal review only.

"Five Years of Civilian Review: A Mandate Unfulfilled," New York Civil Liberties Union - Tracking the CCRB's performance from 1993-1998, this report calls for a CCRB legal unit to prosecute police officers and for the Police Commissioner to disclose exactly what punishment officers receive for misconduct.

"Shielded from Justice: Police Brutality and Accountability in the United States of America," Human Rights Watch - Their 1998 report includes profiles on police oversight in NYC and around the country. Their findings? The grass isn't greener anywhere else.

41 Shots - This anti-police brutality advocacy site offers a helpful explanation of the CCRB, with a healthy dose of editorializing.

 

Old Issues Are New Again: Parole, Central Park Jogger Case, Rape


The first criminal justice issue of the New York gubernatorial campaign came up in the final few weeks -- parole of violent felons. But this isn't the usual substantive discussion of parole, a topic Governor George Pataki mastered long ago. On the contrary, this is about high-level corruption and bribes. Building on analyses by Wayne Barrett and Jesse Goldstein in the Village Voice, Tom Golisano, the Independence candidate for governor, began broadcasting a 30-second advertisement statewide charging the Pataki administration with selling paroles to an armed robber and a major drug kingpin in exchange for campaign contributions. Pataki parole board chairman Brian Travis, who is still on the job, was named as an unindicted co-conspirator by a federal prosecutor.

Selling Paroles?

According to Barrett and Goldstein, Pataki fundraiser and Korean community leader Yung Soo Yoo had approached three families before the 1994 election, saying he could help get their sons, all convicted violent felons, out of prison if they contributed to the Pataki campaign. One man was indeed released on parole two years after his family donated.

Nonetheless, the New York Times concluded that saying Pataki's administration "got caught selling paroles" stretched the truth.

No one was convicted of selling paroles, says the Times, although three State Parole Board officials were convicted of lying to federal investigators and Pataki fund-raiser Yoo was convicted of obstruction of justice. A jury deadlocked on whether he had promised paroles for contributions.

Meanwhile, Patrick Donahue, the finance director of Friends of Pataki, was also named an unindicted co-conspirator for helping bring Yoo into the campaign, collecting contributions from him, and meeting with the families who had been promised early release.

All very distressing stuff, particularly given Pataki's aggressive substantive record on parole. Pataki had pushed a sentencing reform act through the legislature in 1995, eliminating the parole board hearing for repeat violent felons. (Inmates can still apply for a 15 percent reduction in sentence for good behavior.) After a bitter fight with Assembly Democrats, he got the ban on parole extended to first-time violent felons, under what's called Jenna's Law, in August 1998. He has been arguing ever since to abolish parole for all felons, and to implement "truth-in-sentencing," by which a judge would mandate a specific number of years to be served rather than a potential range. Truth-in-sentencing would retain minimum sentences while eliminating the false maximum sentences that had once lulled victims into thinking their assailants would be away for a long time.

The old system of indeterminate sentences didn't really have a maximum term, though one was pronounced by the judge. Someone sentenced to, say, 15-25 years, seldom actually served 25 years. Instead, after serving two-thirds of the so-called maximum sentence the prisoner became automatically entitled to parole. This entitlement applied to everyone, including violent felons who had committed terrible crimes. The only exception was for those who behaved very badly in prison, which some of the more vicious inmates did indeed do, thereby imprisoning themselves further. Robert Chambers, for example, who killed Jennifer Levin in Central Park in August 1986, was recently denied parole, as he has been before, because of his drug abuse and violence in prison. He will finish his 5-15-year manslaughter sentence this winter and be released free of any parole supervision -- yet another problem of the old system. Chambers and a few others aside, most prisoners have been released early, well before reaching their maximum terms.

Seeking More Time

The Central Park jogger case is both 13 years old and brand new, summarized the Times, noting that prosecutors had been granted six more weeks to conclude their investigations of what happened the night of April 19, 1989.

Given the confession (and DNA corroboration) of serial rapist Matias Reyes, attorneys representing the Harlem teenagers who had been convicted of the Central Park jogger assault argued before State Supreme Court Justice Charles Tejada that the convictions should be vacated immediately. Manhattan Assistant District Attorney Peter Casolaro, however, asked for more time to review 15,000 pages of court transcripts, interview people, and follow up leads and information given by Reyes. Judge Tejada set December 5 as the new deadline for the prosecutor's report.

While no one knows for sure what will be in the prosecutor's report, the Times, again displaying its amazing access to the D.A.'s office, says that investigators have so far come up "with almost nothing to back the original findings of guilt and with quite a bit that undermines them." Manhattan D.A. Robert Morgenthau has arranged for additional DNA tests that may yet corroborate the original confessions, but he calls the tests a "long shot."

Declaring Another Rape

Adding yet another horrible detail to the case, Matias Reyes told investigators that he had committed a similar rape in Central Park two days earlier, and that he assaulted both women by himself. The earlier rape had never been discussed publicly by either the police department and prosecutors, nor had it been divulged to defense lawyers. After being hospitalized for two days, the victim immediately left New York. No one was ever prosecuted for the rape, and the police department seems to have pretty much shelved any investigation. According to the Times, even the homicide detectives handling the Central Park jogger case did not know about the earlier rape, which had been handled by the Sex Crimes Unit. When Reyes went on to rape and murder a pregnant woman three months later, he carried out the prediction of one defense lawyer during trial that the real attacker was still unknown and would be out committing more rapes and possibly even murder.

The crucial question now is whether Reyes's contention that he acted alone should be believed? Michael Daly of the Daily News dug out a 1991 report on Reyes by psychologist Dr. N.G. Berrill, who concluded that Reyes engaged in "grandiose fantasies." Reyes "indicated that while he does not believe he possesses magic powers he would like to become a 'superhero one day like Ice Man,'" wrote Berrill, who went on to describe Reyes as an "infantile, impulsive individual ... prone to viewing the world in a peculiar fashion ... marked by 'monsters, blood, dead animals.'" He is "demanding, particularly with his need for respect and attention."

Concluded Daly: "Reyes would later say that he finally revealed his secret because he had found God, but the report shows he had been talking about finding God for at least 11 years. More likely, the 31-year-old Reyes realized that even after all this time, his secret accorded him power to match his fantasies."

A New Report From Jogger's Medical Team

Members of the medical team that first treated the jogger told the Daily News that her injuries were not consistent with Reyes's account that he acted alone and beat her with a tree limb and a rock. "The wounds that caused the blood loss, the ones that almost killed her, were administered by some sharp-edged weapon of some kind. Not by a blunt object," said one doctor. "A sharp-edged object will not produce the same abraded edges." A second doctor agreed, adding that more than one person was involved: "She had extensive injuries all over her body. There was not a part of her body that wasn't traumatized."

Increasing Numbers Of Rapes

Rape is the only violent crime in New York that has been on the rise this year, according to NYPD statistics. It is now up a little more than six percent over last year, with 1,570 rapes reported through October 6, 2002, compared with 1,478 rapes in the same period last year.

This year began with an increase in rape; 261 first-degree rapes were reported from January 1 to March 11, up from 238 in the same period last year. In March the NYPD attributed the increase to a rise in acquaintance rape, which jumped 18 percent. Stranger rape fell eight percent. (Nationally, acquaintance rape tends to be as much as 80 percent of all rapes.) While not yet providing the acquaintance/stranger breakdown for the year-to-date data, the NYPD nonetheless argues that the numbers reflected increased reporting rather than an increase in actual rapes.

They may be right, but some of the hardest-hit precincts are also ones with a history of antagonism with the NYPD. The 43, for example, where Amadou Diallo was killed, had 46 rapes up to October of last year and 58 rapes this year to date. The neighboring 44 had 41 last year and 67 this year. Perhaps more women are reporting rape, but perhaps something else is going on.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

Two Heinous Crimes Unresolved


As former police officer Charles Schwarz heads back to prison to start his five-year sentence for perjury, New Yorkers have come to realize they may never know who besides imprisoned former cop Justin Volpe participated in the vicious August 1997 torture and sodomy of Abner Louima. And even as Schwarz and his lawyers were working out a plea arrangement in federal court that permitted him to avoid admitting guilt in the Louima assault, New Yorkers were learning that yet another heinous crime--the 1989 rape of a jogger in Central Park--had been committed by a man who had gone untried and unpunished.

Thus two of the most publicized violent crimes in recent New York City history are joined in parallel scenarios that may never be fully understood or satisfactorily resolved. In both cases the savagery of the assault left the victim unable to provide key information--even as both cases refocused the definition of brutality to some previously incomprehensible level.

SCHWARZ CAN NO LONGER PROCLAIM HIS INNOCENCE

The saga of Charles Schwarz's drive to be found innocent in court ended when he signed a sentencing agreement a few minutes after 8:00 p.m. on Saturday, Sept. 21 -- less than two days before his fourth trial was scheduled to begin in Federal District Court in Brooklyn. A jury had been chosen the previous day, and the stage was fully set for the next trial to be played out in the same courtroom where a previous jury had found him guilty in July of one count of perjury. When that jury deadlocked on another perjury charge and on two civil rights charges the interim U.S. Attorney, Alan Vinegrad, immediately announced that he would retry Schwarz.

That was clearly going to be a difficult undertaking. The July jury's partial verdict signaled that they thought he was guilty of something, but couldn't agree on what. The jury foreman later said that 11 jurors had voted to convict on all charges, but that one hold-out "irrational" juror had forced them to convict on the perjury charge only. And as defense counsel Ronald Fischetti noted during September's plea negotiations, all he needed to do in the next trial was convince one juror to doubt Schwarz's guilt -- something he had just succeeded in doing.

Vinegrad had little reason to believe he would be able to come up with better evidence or more convincing witnesses for the new jury, made up of 9 whites, 3 blacks, and 1 Hispanic. His threat of a fourth trial was meant to coerce Schwarz into an acceptable plea bargain. Did he succeed? Had Schwarz been convicted on all charges, he could have received a sentence of up to 15 years. But that almost surely wasn't going to happen, even with a couple of judicial rulings that went against the defense. (The judge ruled, for example, that were Schwarz to testify he could be questioned on the perjury conviction.)

What the sentencing agreement did for the prosecution was eliminate a trial -- and its potential loss -- while securing Schwarz's agreement to the highest possible sentence (5 years imprisonment plus 3 years supervision) for the one perjury conviction. Did Vinegrad go this route because he feared that Judge Reena Raggi, who sternly presided over the third trial, would not impose the highest sentence? No one is saying.

What Vinegrad did get in the plea bargain was a most unusual agreement from Schwarz that he would not continue to proclaim his innocence publicly. Much of the case had been played out in the press, with Fischetti regularly outflanking Vinegrad. Schwarz repeatedly announced his innocence, even dismissing his July perjury conviction as a "small, technical charge." (For this he earned a harsh reprimand from Judge Raggi.)

Schwarz, his wife, and his lawyers are now forbidden under the sentencing agreement from making any statements "relating in any way to the sexual or other assaults of Abner Louima." If they abide by this prosecutors will recommend to prison authorities that Schwarz get a 13-month reduction in his sentence--cutting his sentence to just under 4 years. On the other hand, the prosecutors are also bound not to discuss Schwarz's guilt, making the agreement less of a victory for Vinegrad, who seems to believe in Schwarz's guilt to the core of his being.

Plus there's an obvious problem of enforceability, as Robert Levy, a criminal defense attorney, points out--particularly over the long term. "Usually you condition a plea on something like staying away from a neighbor or not returning to a specific place," says Levy. The Free Charles Schwarz web site has been dismantled and de-listed by the Patrolmen's Benevolent Association, but what happens if some time in the future a Schwarz lawyer goes on a talk show and says Schwarz is innocent? Or, for that matter, a prosecutor goes on a talk show and says he's guilty?

The truth is that Vinegrad never got what he really wanted from Schwarz: an admission of guilt. No remorse from Schwarz, no apology, no public acceptance of his crimes, and no implication of anyone else. Had Schwarz pled guilty, he would have set in motion a whole series of criminal procedures against anyone, mostly his fellow cops, who would thereby be shown to have lied. As it is, the guilt or innocence of Schwarz and his fellow cops will likely never be known, and will be an "ongoing open wound," notes Levy.

IMPRISONED RAPIST-MURDERER ANNOUNCES HIS GUILT IN CENTRAL PARK RAPE

Matias Reyes, a man serving 33 years to life for raping three women and murdering a pregnant woman just two months after the April 19, 1989, Central Park jogger assault, told the Inspector General's office in January that he alone assaulted the jogger. A DNA test confirmed the rape. In February, Reyes was interviewed by the Manhattan D.A.'s office, which then began a quiet review of the case. According to a stunning piece by Jim Dwyer in the New York Times, investigators for the D.A. paid visits to two of the five young black and Hispanic men convicted of the assault in 1990. While "many officials still believe that justice was done" in the case, writes Dwyer, the results of the "visits have shaken veteran law enforcement officials' confidence in the original convictions." After all, these boys came to symbolize what political scientist John DiIulio called "superpredators," a new breed of unredeemable children, "remorseless and morally impoverished" juveniles. Was it possible that their convictions were wrong?

Lawyers for the five young men, who were then teenagers (four of the five were under 16), are asking the court to vacate the guilty verdicts or order a new trial. Reyes' testimony is compelling because the police never had any witnesses. The victim herself, a 28-year-old investment banker, had been so brutally beaten that she lost three-quarters of her blood and was in a coma for 12 days. Amnesia prevented her from identifying her attackers.

Nor did the police have any forensic evidence linking the assault to the teenagers, whose confessions were the only damning evidence. Three were convicted as juveniles of rape and assault, and sentenced to 5 to 10 years. One was convicted of attempted murder, rape and sodomy, and sentenced to 5 to 10 years. The fifth, who was 16, was convicted of assault and sexual abuse, and sentenced to 5 to 15 years.

There is no doubt that Reyes raped the jogger, but many other details are unclear or unproven -- the most important being whether he was alone. In a notarized statement given to defense lawyers on August 23, Reyes wrote, in an oddly Victorian way, "I was drawn by her appearance and I just had to have her." He had seen her from the park's entrance at 102nd Street, and had picked up a tree branch. "A short distance later, I hit her over the head with the tree branch. She fell down and I dragged her into a bushy area ... I took off her clothing ... I grabbed her again and brought her down, covered her face and continued to beat her with a rock and/or possibly other articles. I left and exited the park," he concluded, in startlingly cop-like fashion. Nearly all the details in his account were reported in previous newspaper coverage.

Reyes says he has come forward because of a religious conversion in prison. He may indeed have found God. But one of his former attorneys, Richard Siracusa, told Newsday that he is a classic psychopath who is "fully capable of doing what he's confessed to. I don't think it's made up, but you never know: Guys like that -- they can't separate fact from fancy."

Siracusa, who represented Reyes in 1989 when he was charged with three rapes as well as a rape-murder, took over for a court-appointed attorney who had been relieved, according to Newsday, after Reyes tried to attack him. Reyes then punched Siracusa in the face when he was sentenced by the court.

The police have been criticized for not connecting Reyes with the Central Park jogger at the time. But lawyer Barry Scheck, head of the Innocence Project, told Newsday that the computerized database that now automatically matches samples of DNA did not exist in 1989. Today the database could detect a match between the DNA found on the victim and her attacker--but not then.

Police and prosecutors have always known that at least one rapist had not been caught because they had unidentified DNA from semen left in the victim's sock. That DNA has now been proved to be from Reyes. But what the DNA doesn't say is whether others raped the jogger without ejaculating, not unusual for rapists, say the police. Nor does it say whether anyone else beat her or held her down.

April 19, 1989, was a terrible night in Central Park with dozens of people assaulted and robbed by roving gangs. At least some of the five convicted teenagers participated in these assaults. Whether they or anyone else also participated in the far more savage assault of the young investment banker is not known, and may never be known.

This case will provoke an intense scrutiny of criminal justice procedures, including the questioning of suspects. Would the Central Park jogger case have gone differently if New York followed London procedures of videotaping all interrogations? For that matter, would the Louima case have gone differently if the NYPD had videotaped the interrogations of the 70th precinct's police officers, each of whom was a potential suspect?

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

Police Pay: What's Fair?


The starting salary of police officers in the NYPD is $31,305 -- too low to support a family of four in most city neighborhoods. How did this happen to cops in the most famous -- and once best paid -- police department in America? And what should be done about it in the next contract?

Police officers, who have been working without a contract since July 31, 2000, are now having their fate decided by a state board under binding arbitration. This will be the first time ever that a state panel has ruled on a city police contract. The board's preliminary recommendation, leaked in early August, was that the police should be offered the same 5 & 5 percent wage increases over two years that had previously been given to the 13-union Uniformed Forces Coalition. (Constituting about 39,000 uniformed employees, the coalition includes the unions representing firefighters, sanitation, and correction officers.)

The raises would be retroactive over the previous two years. The board also proposed that cops work another 10 shifts a year in exchange for a 3.5 percent bonus increase. Cops with six or more years experience would get an $1,800 increase, yielding a 14.11 percent increase to veterans.

This set of proposals enraged the rank and file sufficiently to turn out thousands (the Patrolmen's Benevolent Association said 15,000) demonstrators in Times Square on August 15. Chanting "Too much praise, Too little raise," demonstrators carried signs saying, "They say, 'Never forget,' We say, 'Already forgotten.'"

Greg Tarpinian, executive director of the Labor Research Association, a consulting group for unions, says that September 11 "deferred the PR strategies the police might have pursued to complete their contract last year." Instead, all effort turned to making the city safe once more, with the contract on the back burner. Yet, says Tarpinian, "the fundamental problem is that the only way the public employee, without the right to strike, can leverage influence is by going to the public. The cops have wakened up to this. Cops are not feeling disrespected by the public at the moment. They're feeling disrespected by the political establishment."

The media have been full of stories about low police morale and the defection of NYPD cops to the Port Authority, neighboring jurisdictions, and even private security firms. This is ominous for the city. Professor Dennis Kenny of John Jay College notes, "It's reasonable for cops to expect that if they're making an exemplary effort the city would appreciate it. That said, management people would say that salary is less a motivator than a de-motivator. Giving them a raise wouldn't necessarily motivate them, but not giving them a satisfactory salary could be a serious de-motivator."

LOW -- BUT NOT QUITE AS LOW AS IT LOOKS

The $31,305 entry level salary for police is indeed far too low. But it moves up fairly quickly initially, reaching $49,023 after five years, and then slowly -- topping out at $55,268 after 20 years.

The benefits are good, even excellent. Police have unlimited sick leave (though the average usage is only 8 days a year) and excellent health benefits. They can retire with a full pension after 20 years service. (This is standard among police departments. Like the military, from which the 20-years-and-out system derives, police departments require cadres of physically fit young men and women, whose usefulness on patrol will decline as youth fades.)

Since the year 2000, police officers leaving the force with as few as five years have been vested with partial pensions.

This year the city agreed to add a benefit to the other end of the job. Officers can now continue to accrue credit for pensions beyond 30 years service.

The benefits are fine but they don't make up for the low salary and subsequent low take-home pay ($411 per week), says the PBA, which argues that its members need a 23 percent pay raise to bring the NYPD into line with other police departments. It has been helpfully posting job openings elsewhere on its web site.

The starting salary in Seattle, for example, is listed as $46,146; Irvine, California, offers $46,463; and Fort Lauderdale, Florida, $39,686.

In negotiating with the Giuliani administration, the PBA had asked for a 39 percent salary increase over two years, to bring officers to parity with officers in neighboring Newark. Giuliani was having none of it. He had forced through a wage freeze in the 1995 contract and showed no sign of relenting from the small 2 percent and 2.5 percent increases he was offering for the next contract.

John Jay Professor Eli Silverman, author of "NYPD Battles Crime" (Northeastern University Press, 1999), says that Giuliani "wanted to hold the line as much with the police as with CUNY professors. I suppose in his mind this was across-the-board equity. But the police felt they were producing far more for the city in terms of tourism and economy, and that they weren't getting rewarded fairly."

PERHAPS REGRETTING WHAT THEY ASKED FOR

In 1998, in the midst of their battle with Giuliani, the PBA pushed through legislation in Albany securing the right to have contract disputes go before the New York State Public Employment Relations Board (PERB). The PBA liked its chances with the three-member board that has only one member selected by the city, one by the union itself, and a third by the state board. The city challenged the legislation in court, and lost before the New York State Court of Appeals, which last year upheld the law.

The city, which is facing a $5 billion deficit next year, is now overseen by a mayor who is very confident of his management abilities, and who is not easily swayed. On his weekly radio show on WABC-770AM, Mayor Bloomberg said the PBA had not wanted to negotiate with "Giuliani, and they certainly didn't want to negotiate with my administration for seven months. They insisted on going to binding arbitration. They got themselves in a situation where win, lose or draw - when you go to binding arbitration - you have to live with it." The PBA denies this, saying they have always been open to negotiation, but as Bloomberg says, "Once you go to binding arbitration, you don't have any choice - you got to accept what it is and get on with it."

Bloomberg's problem is not just that a 23 percent increase would cost the city about $445 million, it's that a substantial raise for the cops would break the sacred principle of pattern bargaining by which the city offers its labor unions roughly the same percentage in raises. If the city deviates from settled contracts to pay the cops a jump, the other unions will come back for more. The PBA demands would cost the city about $257 million above the cost of the pattern settlement. Bad enough, but were the PBA proposal to be applied to all uniformed employees, it would cost the city over $1.3 billion for this contract period alone.

After seeing its hopes for a better deal from the state dashed in early August when the New York State Public Employment Relations Board floated the 10-percent-over-two-years proposal, the PBA rallied its troops for the public demonstration in Times Square. More quietly, its lawyers pressured the board to reexamine some 75 hours of testimony -- which the board has agreed to do, postponing any final ruling.

PROBLEMS AT BOTH ENTRY AND EXIT

As serious as the financial implications of these negotiations are, the operational problems may be even worse. Will the NYPD be able to continue its successful (but personnel-heavy) crime-fighting strategies if its pay is uncompetitive? The city and the PBA have been arguing for months about whether the NYPD does indeed have a recruitment and retention crisis. The PBA says yes, the city says no.

The test-taking numbers alone confirm there's a problem. In his March 19, 2002, testimony, former NYPD First Deputy Commissioner John Timoney pointed out that the number of people taking the test to become police officers has fallen precipitously, to 12,000 in the last couple of years from 37,000 in 1995. This is potentially disastrous because traditionally only 10 percent of those taking the test go on to the academy. (In 2000, the academy was unable to fill a class for the first time that anyone could remember.)

Further the drop-out rate at the next stage -- those actually enrolled in the academy -- has doubled from the historic rate around seven percent, says Timoney, to about 14.7 percent today.

Perhaps even worse, the rate at which recruits have been cited for infractions during their time in the academy tripled since 1997, says Timoney.

And all this despite the lowering of age and education standards during the last years of the Giuliani administration. Noting that he and Police Commissioner William Bratton had raised the standards in the first place, Timoney criticized the city's November 2000 reduction of the minimum age for police applicants by a year (from 22 to 21), and the substitution of two years as school safety officers or traffic enforcement agents for two years of college. Yet even with these lowered standards, applicants have been few.

Similarly, the NYPD has been grappling with a retirement problem for several years. The year 2000 saw the beginning of a surge, which extended well into 2001, in the number of officers eligible to retire. The overtime produced by the Sept. 11 terrorist attack then accelerated retirements further, since pensions are based on the last year's salary, in many cases, inflated by 9/11.

In sum, the NYPD is having trouble recruiting the youngsters and keeping the veterans.

WHAT SHOULD BE DONE?

Economists like to say that there is no such thing as a labor shortage, that any shortage is immediately correctable by raising pay. Indeed, New York City recently brought an end to its long-standing teacher shortage by hiring some 8,000 qualified candidates for the fall. The deluge in certified applicants was due in part to the new contract agreement raising entry-level teacher salaries to $39,000 from $31,910. Even at $39,000, New York's teacher pay is below that of neighboring jurisdictions (Yonkers pays $40,000, for example) but the jump was enough to attract those who wanted to be here. Plus top pay is high at $81,000.

But the teacher settlement was helped out by the state, which kicked in supplemental money. The police settlement is not being helped by the state, and there are no more of the federal funds that long fueled Operation Condor, the overtime initiative that paid cops an extra $100 million a year to work a sixth day. The city is on its own with cop pay, unless Senator Schumer's federal aid proposal comes through, which even he admits is unlikely.

The city only has three ways to pay for a better contract: (1) state or federal aid, for which it is surely negotiating as ferociously as possible; (2) savings within the NYPD itself; and (3) productivity savings. There has been almost no talk during negotiations about savings within the NYPD, although Newsday's Leonard Levitt regularly points out the extravagant round-the-clock use of officers to protect former police commissioner Howard Safir and former Mayor Giuliani, his girlfriend, former wife, and children. That leaves productivity savings, such as the proposal for an additional 10 shifts a year.

The good of the city requires productive, dedicated police officers -- and a contract that says they're appreciated. New Yorkers should be paying attention.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

Capital Punishment, Parole, And More


CARNEGIE DELI KILLERS SENTENCED

The two men convicted in late June of killing three people and wounding two others in an execution-style murder and robbery above midtown's Carnegie Deli have been sentenced to life in prison. Each murder count carries a prison term of 25 years to life. The two counts of robbery carry 15 years each, as does the count of criminal possession of a weapon. All the terms will be served consecutively.

The Carnegie Deli slayings had focused attention on the anti-death penalty stance of Manhattan District Attorney Robert Morgenthau, who refused to prosecute the triple murders as death penalty cases. Arguing after the trials that there had been insufficient evidence to prove that a single shooter fired the shots, he said that "The statute's pretty narrow. People who are for the death penalty don't want to understand that. We couldn't prove who the shooter was and we can only charge the actual person." Prosecutor David O'Keefe said the two would have to serve 116 years before being eligible for parole.

Addressing the killers during sentencing, the father of one of the victims said, "The only thing I regret is this isn't Texas." Texas is the country's foremost death penalty state.

GOVERNOR'S RACE QUIET WHILE COURTS ACTIVE

During much of the summer the future and fairness of New York's death penalty has been discussed in the news, on radio and television talk shows, and at academic conferences. Where it has not been discussed above a whisper is in the state's gubernatorial campaign. You would hardly know from following the campaign of George Pataki, our sitting Republican governor, that he is presiding over the state today in part because he strongly supported the death penalty in 1994 when then-Governor Mario Cuomo opposed it. Nor would you know this from following the campaigns of Democrat Carl McCall or even Democrat Andrew Cuomo, son of the anti-capital-punishment former governor.

Quiet as the gubernatorial campaign has been, the courts at all levels have been unusually active. The U.S. Supreme Court handed down two momentous decisions -- one banning the execution of retarded criminals, the other saying juries must find all facts leading to a death sentence.

Neither applied to New York State's shrewdly written law, which already forbade execution of the mentally retarded and which already placed capital punishment squarely in the hands of juries.

Then Federal Judge Jed Rakoff, sitting in the Southern District in Lower Manhattan, declared the federal Death Penalty Act unconstitutional -- the first ruling [pdf] to do so -- citing "an undue risk of executing innocent people" and various procedural problems, most of which New York State is thought to have avoided in the implementation of its statute.

DEATH SENTENCE THROWN OUT IN CLUB HAPPINESS MURDERS

New York's own Court of Appeals was not far behind the feds, throwing out the death sentence of Darrel K. Harris, who had murdered three acquaintances in 1996, a year after Governor Pataki succeeded in bringing the death penalty back to New York.

Harris had been tried under the 1995 law, whose flawed plea-bargaining provisions encouraged defendants to plead guilty rather than risk a death sentence after a trial. Because these provisions unfairly threatened capital punishment to any defendant exercising a citizen's constitutional right to a jury trial, they were struck down in Hynes v. Tomei in 1998, right after Harris's conviction.

Writing for the Court of Appeals in early July, Judge Richard Wesley, a Pataki appointee, noted that Harris's guilt was established beyond a reasonable doubt. Still, wrote Wesley, "All seven of us have concluded that there is no reason to retreat from Hynes; all of us agree that the statute at the time of defendant's trial impermissibly discouraged defendant's assertion of his Fifth and Sixth Amendment rights. Accordingly, the trial court could not constitutionally impose the sentence of death on this defendant."

The facts of the case are undisputed, even by Harris, then a 39-year-old decorated, former corrections officer. He had no criminal record and had been honored in his job for saving a fellow officer during a prison riot. Nonetheless, in the early morning of Dec. 7, 1996, he murdered two men and a woman (a mother of five children) at Club Happiness in Brooklyn's Bedford-Stuyvesant neighborhood. The jury had found him guilty of first-degree murder and voted for death by lethal injection, rather than life without parole.

Harris's case is being sent back to Brooklyn for resentencing by Acting Supreme Court Justice Anne Feldman, who can sentence him to life without parole or to something between 20 to 25 years and life. The possibility that this murderer of three people might some day walk free from prison has not yet been widely commented upon.

PAROLE REAPPEARS IN THE NEWS

Parole for violent felons has not been a major political issue since the summer of 1998 when, despite initially strong Democratic opposition, the governor and the Republican leadership secured passage of Jenna's Law, which eliminated parole for first-time violent felons.

Now the imminent release of Robert Rodriguez, the landlord of the Lower Manhattan couple who disappeared in 1997, is putting parole back in the news. Rodriguez had refused to cooperate in the investigation of the couple's disappearance, according to the NYPD. Nonetheless, the cops succeeded in getting him on overlapping state and federal tax and credit card fraud. Since he was not convicted of a violent felony, he is being released early, and over angry objections from the NYPD and the Manhattan D.A.'s office. Barbara Thompson, a spokesperson for the Manhattan D.A., said, "Obviously, we objected to his parole, and we recommended that he serve the maximum sentence, as we did at his sentencing." He is being released Aug. 30, 2002. Were he not being paroled, he would have been released on Aug. 30, 2004.

Another recent Manhattan parole case is that of Daphne Abdela, a young woman who in 1997 helped cut the throat of a friend in Central Park. The parole board denied her release because of her poor behavior in prison as well as a "total disregard for human life." She was eligible for parole under pre-Jenna's Law rules because the murder occurred in 1997. Under Jenna's Law she would have to serve 6/7 of her sentence.

The two state laws restricting parole have dramatically changed the parole numbers. During fiscal 2001, only 21 percent of inmates convicted of violent felonies who came up on parole were released -- as opposed to fiscal 1992, nearly the end of the Cuomo administration, when 54 percent of the 7,227 the violent felons who came up were paroled. The state Office of Criminal Justice argues that Pataki's parole policy has been one of the factors in reducing the state's violent crime by some 43 percent since the Cuomo administration.

POLICE DEPARTMENT DEFIES JUDGE

Manhattan Supreme Court Justice Dorothy Cropper's insistence that three undercover narcotics detectives give their names before testifying in criminal court has landed her in an ugly dispute with the NYPD. Obeying an order from Police Commissioner Raymond Kelly, the undercover detectives defied Cropper's instruction, which led her to toss out all their evidence and testimony in a felony drug case. This seems an odd case to go to war over since the defendant is accused of selling "$10 bags of cocaine" to undercover cops.

Still, there are arguments on both sides. The right to confront one's accuser is one of the oldest and most fundamental common law rights, and should be abrogated only for the most serious reasons. Further, say defense lawyers, the practical ramifications of the cops withholding their identity suggests to a jury that they are in danger from the defendant. As defense lawyer Robert Levy notes, "Anytime the courts increase security beyond normal, this gives an aura that something is wrong. Unless there's a showing of special circumstances, such as an important ongoing investigation that's being jeopardized, the simple status of an undercover cop in what is not even a big case does not deserve special treatment."

The NYPD argues that identifying undercover cops in court will undermine the NYPD's ability to fight crime and will put at risk the lives of the undercover detectives who are involved in larger investigations. Brooklyn D.A. Charles Hynes wrote a letter to the police commissioner saying he would dismiss a drug prosecution rather than endanger undercover narcotics cops by making them give their names in public. Queens D.A. Richard Brown said that in his 11 years as D.A. he has not seen any instance in which a court did not allow an undercover to testify by number rather than by name.

SCHWARZ TO BE RETRIED SEPTEMBER 23

The vicious, nearly fatal assault of Abner Louima in the bathroom of a busy Brooklyn precinct house on August 9, 1997, brought the meaning of police brutality to a graphic new low. The main assailant, Justin Volpe, is serving a 30-year sentence in federal prison. But he was directly aided by a second police officer, identified (though not named) by Louima as the driver of the patrol car that brought him in. This second cop first beat Louima and then pinned him down while Volpe tortured him. Volpe was also indirectly aided by the dozens of police officers on duty that night, many of whom had to know that a brutal crime had been committed in their precinct house. Yet despite several trials and the deployment of the full resources of the federal government only one person,Volpe, is now in prison for the Louima assault.

Federal prosecutors believe the second cop to have been Volpe's partner (and driver of the patrol car) Charles Schwarz. But the jury in Schwarz's recently completed trial in federal court in Brooklyn found him guilty of only one count of perjury. The jury deadlocked on another perjury charge and on the two crucial civil rights charges that justified the federal prosecution in the first place.

The jury's foreman, Russell Birnbaum, wrote a front-page account in the New York Observer of the jury's deliberations. He said one juror had championed Schwarz's innocence from the start, and had not deliberated fairly with the other 11 jurors, all of whom were congenial and serious. She forced the jury to deadlock on the more serious civil rights charges, and would only agree to find Schwarz guilty on a lone perjury charge.

U.S. District Court Judge Reena Raggi has scheduled a retrial of Schwarz on the civil rights charges and the other perjury charge for September 23. Resisting defense arguments that they needed time to raise money to pay for the defense, Judge Raggi said that jury selection after a mistrial typically starts the next day. She is giving them six weeks, with the initial questioning of jurors to begin September 9.

NYPD LOOKS INWARD

The NYPD has been through a lot this year, and now it must contend with an 88-page draft report from McKinsey & Company, the business consulting firm, that it suffered from lapses in leadership and coordination on September 11. Using interviews with more than 100 department commanders as well as interviews with some 700 police officers of different ranks, McKinsey says that many cops did not know who was in charge after the attack, and that many officers in the field acted without direction from field commanders.

The New York Times quoted a senior police official who noted that 25 percent of the officers interviewed by McKinsey were unsatisfied with their supervision that day. The official said that on most days more than half of the department's officers would say the same thing.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

Drug Law Reform Failed Again


A year in which the governor and all 211 legislators are up for reelection is generally not the politically preferred time to introduce legislation perceived as soft on crime.

Nonetheless, in his January State of the State address Governor George Pataki called once again for reform of the Rockefeller Drug Laws, which mandate harsher penalties for drug convictions than for most violent offenses. Someone convicted of selling two or more ounces of heroin, for example, or possessing four or more ounces of cocaine faces a mandatory minimum prison sentence of 15 years -- and may be sentenced to life. Someone convicted of selling a single bag of heroin or a single vial of crack faces five years or more. Pataki's emphasis has been on bringing sentencing for nonviolent drug offenses into line with sentencing for other nonviolent crimes.

You might think this reasonable reform would have been a slam dunk. Yet despite the impression given in the media of widespread support for reform (helped by the hundreds of articles in major newspapers on the unfairness of the laws), proposals have come and gone over the last two years without any law clearing both the Assembly and the Senate.

The antagonistic positions are pretty clear. Democrats in the Assembly tend to believe in rehabilitation and treatment, even of felons with several convictions, and Republicans in the Senate do not. The Democrats have been pushing for greatly reduced sentences as well as judicial discretion to assign an offender to treatment--which they would like to have far more generously funded--rather than prison. (Nearly everyone, even prosecutors, agree that treatment programs are underfunded. Some upstate counties have no drug treatment clinics whatever.) Under the current sentencing system judges are bound by the weight of the drugs seized and the defendant's felony record. Any treatment option (called "diversion") lies with the prosecutors, which is where many Republicans in the Senate intend to keep it. Republicans tend to oppose most decreases in prosecutorial discretion as well as any increases in judicial discretion.

In an attempt to end a stalemate with the Assembly in early May, Governor Pataki softened some key elements of his proposals. While prosecutors would have still determined which defendants deserved treatment, defendants turned down for treatment would be able to appeal to specially trained judges who could overrule the prosecutor (who could then appeal, however). Pataki also proposed substantially lighter sentences--and eliminated the possibility of life imprisonment--for non-violent drug offenders. But in the old-time Rockefeller spirit, Pataki also urged a mandatory five-year sentence for anyone carrying a gun while committing a drug offense.

The Assembly Democrats weren't buying. They said the benign-looking proposals were in fact coercive and counter-productive. Very few drug felons, they argued, would be able to appeal to a judge for treatment rather than prison because only those with either no criminal record or only one prior felony conviction were eligible. Most addicted felons, say Democrats, have more than one conviction- -- a status that Republicans regard unsympathetically. Roughly 1,600 people imprisoned on drug convictions in 2000 were first-time offenders who would have benefited under the governor's proposal. Another 1,750 had more than one conviction on their records and would not have qualified.

Over 94 percent of imprisoned drug offenders are African-American (about 9,700) or Latino (7,800). Most are from New York City, making this look like a classic upstate-downstate issue with New Yorkers pitted against the rest of the state. Yet not everyone in New York City wants the drug laws abolished. While a 1999 Zogby poll concluded that Rockefeller reform was popular among all ethnic groups, nearly half (49 percent) of Latinos called reduced prison sentences for drug offenders "soft on drugs." This compared with 32 percent of blacks and 29 percent of whites. So while Governor Pataki has been targeting his drug proposals to minorities, he has been treading carefully.

Quiet opposition to softening the drug laws also comes from small businesses in neighborhoods affected by drug use. A West Side flower dealer, for example, recently complained to the police about being repeatedly robbed by recently released addicts. "They plagued me ten years ago," he said. "And now they're back. Do I want more of them out? No!"

Much of the public (and media) discussion of the drug laws has focused on sympathetic youngsters--young mothers, for examples--with plausible stories for how mistaken judgment landed them an unfairly harsh sentence. Republicans (and prosecutors) say that three-fourths of first-time drug offenders do not serve any time in prison. They are either given probation or sent to special drug courts, where judges nearly always divert them to treatment. The other one-fourth of first-time offenders who actually do time do far less time than is commonly thought, say Republicans. First-time offenders released from prison last year had served an average of 27 months. Repeat offenders had served an average of 39 months.

The real political debate has been over the most serious felons, who constitute about 28 percent of those incarcerated for drug felonies. The most serious felons were the stumbling block that caused reform to fail last June as well as this June. The Democrats want judges to have the discretion to send such felons to treatment instead of prison. The Republicans, including the governor, want the assent of prosecutors, who argue that at least two-thirds of those imprisoned on drug charges are dealers with two or more prior convictions--in other words, bad guys, not just misguided youngsters.

The district attorneys say they should be in charge of diversion decisions because they know the defendants far better than the judges do. What's more, they say they have been generous with treatment, sending some 2,400 people indicted on drug charges last year into treatment programs. About half had prior convictions. Yes, say the Democrats, but another 11,600 people were sent to prison, and at least some of these should have been candidates for treatment.

To the chagrin of many New Yorkers the legislature has adjourned without touching the drug laws. But there are some who say privately that this is for the best. New York's major crime continues to plummet at least in part because the state has taken so many drug dealers, couriers, and users off the streets. Those on both sides of the debate agree on one time bomb: thousands of felons sentenced harshly are now being released to inadequate treatment and social services.

MAJOR CRIME CONTINUES TO PLUMMET

Last June Mayor Rudolph Giuliani made a triumphant announcement: The city's murder rate had fallen 13 percent over the first six months of the year. The police department had logged 289 murders through June 24 -- or 46 fewer than in the first six months of 2000. Were this rate to continue, the city would experience 581 murders by year end, far fewer than the previous year's 673. When Police Commissioner Bernard Kerik predicted that the city would have fewer than 600 murders, he was harshly reprimanded by Giuliani, who called the goal "very highly unrealistic."

This June Mayor Bloomberg quietly announced that murder had plummeted 12.6 percent in the first six months of the year (the duration of his administration so far). With 256 murders through June 26, 2002 (as opposed to 293 through June 30, 2000) the city may well experience the lowest number of murders for any year since 1965, which had 549.

Robbery was down 8.6 percent, felonious assault down 12.7 percent, and grand larceny down 4.3 percent. Rape, however, was up five percent--a very troubling statistic. Rape data vary substantially by borough. While rape was down 5.6 percent in Staten Island and 1.2 percent in Queens, it was up over eight percent in both Brooklyn and the Bronx--and a tiny, though perhaps ominous, .07 percent in Manhattan.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

Operation Spotlight, etc.


Last fall's post-September 11 headline in the satirical newspaper the Onion read: "Rest of country temporarily feels deep affection for New York." But it is still holding on. Despite forbidding statements from federal officials about the vulnerability of the city and its landmarks--particularly the Statue of Liberty and the Brooklyn Bridge--Americans are still coming to New York in large numbers as tourists. The city's hotel room occupancy--nearly 79 percent in April, about the same as last year--showed no sudden drop-off after the new federal alerts, according to the Daily News.

Nonetheless, not all New Yorkers were standing tough, and certainly not Brooklyn Borough President Marty Markowitz, who cancelled the June 2 birthday celebration of the 119-year-old Brooklyn Bridge. Police Commissioner Raymond Kelly said the Police Department had not asked for the cancellation. "That's a decision we did not recommend one way or the other," said Kelly at a City Hall news conference. "He made that decision on his own."

NEW YORK POLICE TRAIN IN ISRAEL

Meanwhile the Daily News revealed on May 19 that the NYPD had sent five investigators from its counterterrorism and intelligence bureaus to attend a symposium on suicide bombers in Israel. The next day, the director of the Federal Bureau of Investigation warned that suicide bombings like those in Israel would be "inevitable" in the United States.

The NYPD's five investigators represented the first time any American police department had received training from Israeli experts--and also the first time that the NYPD had sent officers to any foreign country for instruction. Kelly denied that the training was tied to specific expectations of suicide bombers in New York.

Nonetheless, New Yorkers with memories reflected on the near-miss in 1977 when a Palestinian living in Brooklyn was arrested within hours of exploding a nail-studded bomb in the subway. This is the first and only known instance of an attempted suicide bombing in New York. Was it an isolated incident? or a portent of things to come? The NYPD is judiciously preparing for the worst.

POLICE ARE STILL TAKING CARE OF BUSINESS AT HOME

There are a few bad signs in the city's routine life. Drug dealers are popping up again on the West Side. Prostitutes are visibly back in Times Square. Ugly etched graffiti mar retail windows in Midtown and up and down both East and West Sides. And somehow seven arrested suspects, including an alleged serial rapist, escaped police custody this year--two in one week.

Yet overall crime in the city declined by seven percent during the first four months of this year compared with last year. With the exception of rapes, up six percent, and shootings, up 22 percent, every major category of crime was down. The police are containing crime, even as New Yorkers are getting jittery.

And Mayor Bloomberg is showing he's no wuss. He has announced a new program, Operation Spotlight, which beginning July 1 will target the worst of the nearly 10,000 low-level criminals who repeatedly commit quality-of-life crimes--and get off with a few days in jail or community service. Calling them career misdemeanor offenders at a City Hall press conference, Mayor Bloomberg said: "These are the people who deal drugs, deface storefronts and steal from our retail establishments. They drive away tourists. They discourage shoppers. They devalue our neighborhoods. The time has come for us to cast a spotlight on them."

This has long been a sore spot with police, who were pressured by Mayor Giuliani to make quality-of-life arrests only to see most suspects walk even in cases of proper evidence and paperwork. At least part of the problem was the judicial system, full of unsympathetic judges. Designed with the cooperation of Chief Administrative Judge Jonathan Lippman, Operation Spotlight authorizes judges at special courts in each borough to sentence convicted repeat offenders to up to a year at Rikers. Offenders can also be sent to drug treatment.

CAREER MISDEMEANOR OFFENDERS AS ARTISTS

Columbia University Press chose April as the right time to publish Taking the Train: How Graffiti Art Became an Urban Crisis in New York City, by Joe Austin, an assistant professor of popular culture at Bowling Green State University. Austin argues that graffiti artists, called "writers," have never been given a fair hearing on their cultural contributions. He seeks to rectify this injustice while lecturing New Yorkers on the provincialism that led them to destroy what he regards as "perhaps the most important art movement of the late 20th century."

It's wise to skip over his political analysis, which is full of errors, including the "four-term Democratic incumbent Richard Wagner" (instead of three-term incumbent Robert Wagner) not to mention the anti-graffiti parks commissioner "Hubert Stern." (by which he surely meant Henry Stern). But the full-color photographs of the trains painted with "masterpieces" by Kase, Dondi, Vulcan and other writers are a reminder of just how talented some of them were--and just how out of control sections of New York had become. A detail of the 200-foot long Halloween Wall in a Brooklyn schoolyard is undoubtedly magnificent--and it was painted by Loomit, a German writer. New York not only had its homegrown writers, it had become a magnet for foreigners whose local municipal authorities had the good sense, unlike ours, to fence their own train yards and patrol vulnerable public spaces.

Let's hope that the days of career misdemeanor offenders, artists or not, will soon be over.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.



Print Friendly and PDF

Editor's Choice


Gotham Gazette: New York Voters Approve $4.2 Billion Environmental Bond Act
New York Voters Approve $4.2 Billion Environmental Bond Act
Gotham Gazette: 
New York City Voters Approve Racial Justice Ballot Measures
New York City Voters Approve Racial Justice Ballot Measures
Gotham Gazette: 
Housing Development in New York City Slows to a Crawl as Officials Debate Tax Incentives
Housing Development in New York City Slows to a Crawl as Officials Debate Tax Incentives
Gotham Gazette: 
City Council Examines Low Voter Turnout, Moving Local Elections to Even Years City Council Examines Low Voter Turnout, Moving Local Elections to Even Years