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Law Guardians for Children


Late last month the war between Mayor Rudy Giuliani and his estranged wife Donna Hanover became a battle for the children. With the couple unable to agree on custody or when to introduce Andrew, 15, and Caroline, 11, to Giuliani's friend Judy Nathan, Acting Manhattan Supreme Court Justice Judith Gische decided the two children needed their own representative. She appointed a law guardian.

Law guardians, who have existed in Family Court since 1962 and in Supreme Court since 1990, can offset the mudslinging and focus attention on the child. However, some critics say there is a vagueness surrounding law guardians in custody disputes, and believe the system of law guardianship needs reform. "The guardian is just one more powerful adult with whose judgment the child may or may not agree," said Andrew Schepard, a professor at Hofstra University School of Law.

"We are constantly debating the issue of substitution of judgment," said Bruce Carpenter, an 11-year veteran of Legal Aid's Juvenile Rights Division who specializes in delinquency cases. He said there is a general trend toward representing the wishes of the child client, but there are cases in the "gray zone" where it might be better to substitute the adult attorney's judgment. "How, as adults, do we define our role?"

In one oft-cited case (Koppenhoeffer v. Koppenhoeffer from 1990), the law guardian was defined as someone who "may act as champion of the child's best interest, as advocate for the child's preference, as investigator seeking truth in controverted issues, or may serve to recommend alternatives for the court's consideration."

New York is unique in the nation in its law guardian system, which combines two essential -- and often conflicting -- functions: guardian and attorney. A traditional guardian, who need not be an attorney, is appointed to provide the court information about a client who is viewed as legally incompetent. Children under six are typically considered to be legally incompetent. A guardian is bound to protect a child's best interests, even if it is at odds with what the child says. In contrast, an attorney for a child acts as an advocate, just as he would with an adult. An advocate must respect the client's judgment and wishes, even if he does not agree.

Legal scholars and practitioners are disturbed by the many "gray areas" of law guardianship, which they warn casts a haze over the entire field. "Identical children receive different kinds of service depending on the individual appointee's conception of the role," said Schepard, who also edits the "Family Court Review." The very ambiguity of the term law guardian, said Schepard, reflects "ambivalence about the role children should play in determining custody disputes between their parents."

The question is whether children are objects or subjects of dispute. In the Giuliani divorce case, the judge selected as law guardian for Caroline and Andrew Giuliani an attorney named Jo Ann Douglas, who had just finished serving as law guardian for the child of Revlon chief Ron Perelman and Democratic fundraiser Patricia Duff in their high-profile divorce. Douglas is known to respect the individuality and judgment of her clients. "We come to positions just like grown-ups do with their lawyers," she said. Her job is not to assume the role of the court and decide between the parents, but to look after the children when their parents are so blinded by their own problems that they cannot see their children's point of view.

 

Police Potpourri: Murder, Drag Racing Down; Mayor's Dander Up; Desk Appearance Tickets Disappear; Council Speaker Swept In A Sweep; Condor Defended


MURDER RATE PLUNGES

June held 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 last year's 673.

But the triumph was marred by an earlier outbreak of harsh mayoral behavior. In late May Police Commissioner Bernard Kerik had told Jack Newfield, then a columnist for the New York Post, that he intended to keep city murders to under 600 - a number not seen since 1963 during Mayor Robert Wagner's administration.

Kerik backed up his prediction with what seemed to be a sensible strategy: He was going to stick to basics, go after violent felons with outstanding warrants, focus on gangs, get guns off the streets, and fine-tune the department's assault on drugs.

Fine. Then Mayor Giuliani issued a reprimand so harsh that it even attracted the attention of the Times of London. A goal of under 600 was "very highly unrealistic," said Giuliani, his annoyance reflected--as it often is--in bad syntax.

The month's figures show that murders have continued along Kerik's predicted downward slope.

CONDOR DEFENDED

It wasn't just the murder rate that plummeted, important as that is. Reported rapes over the first six months of the year were down five percent, felony assault down eight percent, robbery down 15 percent, and burglary 17 percent.

The largest single decline in any category was in car theft, which fell 18 percent. Some 3,000 car owners did not have their cars stolen in the first half of the year.

The Daily News chose to combine these figures with comments from Harvard criminologist George Kelling in support of Operation Condor, the undercover program aimed at violent drug activity. Because Condor costs the city millions of dollars in overtime, it is financially controversial as well as politically volatile. Kelling warned that the next mayor and police commissioner should be careful about dumping Condor or tinkering with it, since it is not broken.

Condor, combined with near zero-tolerance policing, will be ongoing issues for the city. Whether emphasizing the stick of punishment or the carrot of safer, better living conditions, the idea behind the city's aggressive policing strategy is that police confront citizens they suspect of even minor wrongdoing. This is politically dangerous territory.

What's more, for most of the last few years the Giuliani administration has been ratcheting up the consequences of being caught in "minor wrongdoing."

At a recent mayoral forum sponsored by the Century Foundation, former corrections commissioner Michael Jacobson pointed out that misdemeanor arrests went from 130,000 in 1993 to 215,000 in 1998. Even more serious, the police practice of releasing minor offenders with desk appearance tickets--permitting them to go home while requiring their appearance at a later date before a judge--is gradually being discontinued. Some 43 percent of minor offenders were held for arraignment--jailed--for 24 to 48 hours in 1993. In 1998, 85 percent were held.

SWEEPS TRAP CITY COUNCIL SPEAKER

One increasingly common way for middle-class New Yorkers to encounter their police is via "sweeps," by which the police target and barricade some discrete area and check every vehicle for minor infractions. The resulting traffic jams are often horrendous. Even prominent officials can find themselves swept.

City Council Speaker Peter Vallone had trouble making it to the Manhattan Institute's conference last week on "New York at the Crossroads." On the way into Manhattan, he found that "all the traffic coming in from Queens bottled up to France" because the cops at the Midtown Tunnel were checking for seat belts violations. "The Midtown Tunnel," he said. "How busy is it?"

Richard Brookhiser of the New York Observer pointed out that Vallone was blasting "the policy of stop-and-frisk," though "in a very old-ethnic Queens fashion." He suggested that young black males "suffered the same frustrations as harried outer-borough commuters," wrote Brookhiser.

DRAG RACING CURTAILED

Shortly after the New York papers carried lead stories on the fatal drag-racing accident on Long Island, Newsday ran a piece saying that organized drag racing at longtime trouble zones in Queens seems to have been ended. Newsday quoted a young man who said, "They have all sorts of roadblocks now, and they've timed the lights so you can't race anymore." The success is attributed to a crackdown called "Operation Hermes," run jointly by the police department's 107th Precinct and the office of Queens district attorney.

Since its start in June 1999, Operation Hermes has arrested 53 people and seized 33 cars--which seems like an astonishingly high number. Newsday cited police officers who credited the department's "zero-tolerance assault on reckless and drunken driving."

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.

Marijuana


This has been the month of marijuana. Many New Yorkers are wondering whether their city has gotten trapped in some deadly new form of Reefer Madness. On May 10, five people were shot--three killed and two badly wounded--in an apartment above the Carnegie Deli in midtown. It looked initially like a drug deal gone bad because the apartment's tenant, Jennifer Stahl, had dealt in high-grade marijuana. (The shooting later turned out to be more of a music deal gone bad.) The New York Times said that six pounds of marijuana, worth roughly $10,000 per pound, were found in the apartment.

This astonishing market price reflects both the new potency of marijuana--not your grandmother's mild weed of the sixties--and the value produced by the federal government's 30-year war on drugs.

Michael Massing, author of The Fix, a history of U.S. drug policy since the 1960s, points out that marijuana is the only major illegal drug to have soared in price over the last few years--mainly as a result of interdiction, the term commonly used for the efforts by law enforcement agencies to catch people trafficking in drugs. "Interdiction has had the effect of making the marijuana trade far more violent than it had been," he says. "The old distinction between hard trade and marijuana no longer exists." You used to get marijuana from people you knew, he adds.

Indeed, several news accounts emphasized how cautious Stahl had been as a dealer--selling only to people she knew. She was almost surely murdered by an acquaintance. She had called the shooter by the name "Sean."

A recently installed video camera caught two men on tape, leading the police to identify two suspects quickly. The one named Sean is thought to have fled to the South, perhaps Georgia; the other, Andre Smith, was arrested in New Jersey. Smith's arrest has returned the issue of parole to the public eye.

A May 23 New York Times headline put parole up front: "New Jersey Parolee Is Arrested in Killings of 3 Above Carnegie Deli." While out on parole three months earlier for violent robbery, Smith had been arrested on charges of possessing 311 grams of marijuana near an Irvington, New Jersey, public school. But New Jersey officials failed to revoke his parole--or warn New York officials of the arrest.

"He should not have been out," Police Commissioner Bernard B. Kerik said at a press conference. "He should have been violated," he added, using the odd criminal justice term for returning to prison those who violate the provisions of their parole.

Praising the wisdom of New York State's elimination of parole for violent felons--a move he had spearheaded--Gov. George Pataki said the Smith case proved his old campaign point: "We had revolving-door justice for too long in this state."

MEDICAL MARIJUANA BANNED

Meanwhile, marijuana for medical purposes had taken front and center on the national stage.

In U.S. v. Oakland Cannabis Buyers' Cooperative, the Supreme Court ruled unanimously that federal law does not allow a "medical necessity" exception to the Congressional prohibition on the distribution of marijuana. Under the Controlled Substances Act of 1970, Congress listed marijuana as a "Schedule I" drug, meaning that it "has no currently accepted medical use in treatment in the United States." Growing, using, selling, or distributing marijuana is therefore a federal criminal offense.

Federal law notwithstanding, eight states have decriminalized medical marijuana. In 1996, a California plebiscite authorized the use of marijuana under medical prescription. Several systems of providing medical marijuana then developed, including buyers' cooperatives headed by physicians.

This did not sit well with the Clinton Justice Department, which sued to enjoin distribution in Oakland. That is, the Justice Department requested an injunction to stop distribution rather than bringing criminal charges to punish distribution--though it contended this was a criminal offense. Why an injunction? Because criminal charges would have required a jury trial. The Justice Department knew full well that it almost surely could not have found a California jury willing to convict the Oakland Cooperative of illegal distribution or the sick patients of illegal use of marijuana.

Will the Bush Administration follow Clinton's hard line on marijuana? The day the Oakland decision came down, Justice John Paul Stevens pointed out that as a presidential candidate Bush had supported state self-determination on medical marijuana use.

Yet President Bush has chosen a hard-liner as his drug czar. As the Los Angeles Times recently noted, Bush's drug czar nominee, John P. Walters, told Congress in 1996 that it should yank all prescription privileges from doctors who recommend medical marijuana for their patients--about as rigid a line as one can draw.

Michael Massing calls all this "discouraging to everyone who follows the issue." He says that people in the field are looking to any branch of government at any level to bring reasonableness to this issue, which has been surrounded by hysteria. Research, both systematic and anecdotal, has shown repeatedly that smoking marijuana helps some patients.

Even the august and conservative New England Journal of Medicine has editorialized in support of medical marijuana.

Decriminalizing marijuana would reduce its market value--and accompanying street violence--substantially. Massing would like to see marijuana's non-medical use remain illegal, but as a misdemeanor punishable by a fine, like a speeding ticket.

This view has substantial support in New York. Richard N. Gottfried, chairman of the New York State Assembly Committee on Health, wrote an op-ed in the May 16 Newsday attacking the Supreme Court decision as "bad law for patients' rights." Citing a 1990 survey reported in the Journal of the American Medical Association, which found that 44 percent of oncologists said they had suggested that a patient smoke marijuana for relief of nausea induced by chemotherapy, Gottfried urged passage of his Medical Use of Marijuana bill. The bill would allow physician-supervised use of marijuana in treating patients with serious illnesses.

Supreme Court decision or no, the use of medical marijuana, particularly by seriously ill patients, will continue all over the country. The only question is: how will the Bush Administration's Justice Department respond?

YET ANOTHER SHOOTING OF AN UNARMED BLACK MAN

A more routine use of marijuana is involved in the Bronx trial of Mark Conway, the New York City undercover police officer accused of third-degree assault in the shooting of a fleeing unarmed teenager, Dantae Johnson, in May 1999. Johnson had fled Conway in part because he and a friend had just been smoking a joint--and because he had been wrongly arrested less than a month earlier. "I was scared," he testified. "I was trying to go home."

The New York Times drew explicit comparisons between this shooting and the killing of Amadou Diallo, also unarmed and black, four months earlier in February 1999. Like the officers who killed Amadou Diallo, Officer Conway is white and a member of the Street Crimes Unit. Like them, he wrongly believed his shooting victim to have a gun.

Amy Waldman in the Times zeroed in on what she called "yet another echo of the Diallo trial." This was the testimony of Officer Conway's supervisor, Lt. Kevin Cantwell, who had also been the supervisor of the Diallo officers. As in the Diallo trial, he took the stand for the prosecution--only to give testimony that was helpful to the defense.

In Conway's trial, Lt. Cantwell testified that on arriving at the scene, he found Johnson on the ground. He authorized charging him with possession of a loaded weapon and robbery. No weapon was ever found, nor did any evidence of a robbery appear. The charges were dropped.

Because Lt. Cantwell insisted he could not remember who had given him the information that led him to authorize the charges, wrote Waldman, his memory lapse could be helpful to Conway in suggesting that he was not the one trying to manufacture evidence.

There is another comparison between the Diallo officers and this case that the Times chose not to draw explicitly: all officers evaded a trial by jury in the Bronx. The Diallo officers were tried by a jury in Albany. Officer Conway is being tried by a judge in the Bronx.

TRIAL BY JUDGE

Thus we have yet another distressing criminal trial of a New York City Police officer presided over by a judge with no jury.

A bench trial--trial by a judge alone--is a defendant's right under New York State law. But the existence of such a right raises the troubling issue of just what the U.S. constitutional right to a jury trial means in this state.

Officer Conway is following the path of most cops accused of similar crimes committed on duty before him.

Bench trials of cops have happened many times before and will happen many times in the future because New York has an unusual statute that allows defendants to "waive" their right to a jury trial and "consent" to a bench trial. The Court of Appeals has ruled that courts have almost no discretion to deny a waiver.

In effect, a defendant can demand a judge-only trial even over the protest of the prosecutor and the reluctance of the trial court.

The Bronx has seen an unusual number of bench trials. Indeed, since 1977 when Police Officer Thomas Ryan was convicted by a jury of fatally beating a 25-year-old burglary suspect, only one police officer charged with a civilian death in the Bronx has chosen a jury trial. Francis Livoti, who was acquitted in a bench trial of killing Anthony Baez, is the most recent and best known example of an officer evading a jury trial. (The legal term is "waive," but such usage defies common sense.)

Private citizens can demand a bench trial too, of course, although they exercise the option less often than police officers. Over the past 10 years in the Bronx, for example, defendants have chosen bench trials in only 19 percent of all criminal cases.

At the federal level, however, a defendant cannot similarly avoid a jury. Under federal criminal procedure, a defendant can waive trial by jury only with "the approval of the court and the consent of the government," a principle upheld by the Supreme Court in Singer v. United States.

As Chief Justice Earl Warren noted in that decision, a defendant's "only constitutional right concerning the method of trial is to an impartial trial by jury." There exists no parallel right to avoid a trial by jury.

Nearly all the states have procedures compatible with the federal system. New York, as one of the rare exceptions, is out of step with its fellow sovereign states, its own citizens and the nation's founding principles.

The jury trial is the nation's chief means of ensuring that the morals and standards of the community will be heeded in criminal proceedings.

The jury trial is the right of every American--and the right of every American community, including the Bronx.

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.

Neighbors and Nightclubs


When a recent argument inside the nightclub Tunnel in Chelsea spilled out onto the street, a 16-year old wound up fatally stabbed and another teen was shot. It was just another incident in a long line of troubles for the nightclub. In the last few years at Tunnel, an 18-year-old died of a drug overdose, another club-goer was shot and killed, and city officials have repeatedly accused the disco of promoting drugs, selling alcohol to minors, and evading taxes.

For Maria Garcia, who lives a few blocks away, the latest stabbing and shooting resulted in another sleepless night because of a neighborhood disco.

"There were police cars, people on the street, and ambulances," said Garcia. "It kept us up all night. We did not know what it was, but we knew it was something big."

Noise, drunken club-goers, litter, drug use, and violence are common occurrences because of nightclubs, Garcia says. "With several clubs all within a few blocks, we literally have thousands of people coming out of clubs between 2 and 4 o'clock in the morning, every day of the week."

As the head of a group called Chelsea Owners and Tenants for Neighborhood Preservation, Garcia is engaged in ongoing battles to get area nightspots like Twilo, Roxy, Limelight, and the Tunnel to be responsible neighbors. She also tries to keep new clubs from opening.

And, at least part of the time, she is successful. Recently, Garcia and her neighborhood organization stalled the efforts of two clubs, Tambourine on West 23rd Street and High Altitude on West 19th Street. While Garcia said the two victories were not the norm, they point to the growing power of residents in the ongoing battles between community groups and nightclubs, with city officials in-between.

Club owners claim they are often treated unfairly by the city, raided by the police, required to undergo a rigorous and expensive process of gaining permits, subjected to unfair expectations from the public and press.

What To Do If Your Neighbor Is A Noisy Nightclub

Persistence is the key to dealing with noise, crowds, and other problems that may result from a disco in your neighborhood. But knowing whom to call will also save time, since different city agencies handle different problems.

First, see if others have complained before you. Local community groups may have already taken up the cause. Tenant.net is a good resource for many neighborhood issues and may provide information about what is going on in your area.

Second, it is best at least to make an attempt to contact a club directly, because the establishment may be accommodating. Filing an official complaint with a government agency before voicing concerns to the club may make it more difficult to reach a solution in the end.

When you decide it is time to get the city involved, the first official stop is the Department of Environmental Protection, which handles complaints about noise from nightclubs and outside speaker systems. The general complaint phone number is 718 DEP-HELP (337-4357). The city also has a special quality of life hotline at 888-677-5433.

The local police precinct handles noisy neighbors, boom boxes, noise outside of bars and clubs, and the general loudmouth who passes by your window at 2 a.m.

Community Boards are the place to air grievances about general neighborhood issues, liquor licenses, and new clubs. You can always take it one step further and notify your city councilmember.

The final step is the State Liquor Authority, which considers community response when it considers applications from establishments that want to sell alcohol. Recommendations from community boards and letters from elected officials do influence the decisions. The city office for the State Liquor Authority can be reached at 212-417-4002.

"You are probably safer inside a club than in a school or on the street because of the measures most owners take," said Andrew Rasiej, president of the New York Nightlife Association, a coalition of club owners and music industry professionals.

Some argue that unlike Miami, a city that welcomes nightclubs as a vital part of its image and economy, New York is turning its back on the nightlife that helped make its name.

"If you look up dancing on the city's visitors website, all you get is ballet," said Rasiej.

In fact, the official New York visitor's website does offer some other options, but the lounge of the Marriott on Times Square (the website's top suggestion) is probably not what most have in mind when they want to experience the "city that never sleeps."

PROBLEMS BEHIND THE VELVET ROPE

At 11 p.m. on a Thursday, women in backless tops and platform heels and men in tight silky shirts stand outside the Cheeta nightclub on West 21st Street. They line up along a velvet rope, some shivering in a light drizzling rain, hoping that sometime soon they can convince the doorman that they are indeed on the guest list. The thumping bass of the electronic music inside booms out onto the street. The line is constant for the next few hours, the doormen allowing in a few parties at a time to keep up the appearance that this is such a fashionable place to be; how could it not be, if people are willing to wait in the rain to get in?

"I go out about three, sometimes four nights a week," said Ana Tallow, a 22-year-old student who has been waiting on line for 20 minutes. "It is just about going out and being with my friends."

By 2 a.m. patrons begin to flow out of the club, some staggering and laughing loudly. They whistle for double-parked taxis; the taxis honk back. This scene is a nightly occurrence, just part of what is expected outside of a club. But traffic and noise are just the beginning.

Last year, St. Vincent's hospital in Manhattan notified authorities of an increasing number of people who had overdosed on drugs and arrived in the emergency room via private ambulances. Several nightclubs, it turns out, keep ambulances on a kind of retainer, parked outside their door. The hospital reported treating four to five nightclub overdoses a night, twice as many as before. The medical emergencies are from relatively new drugs like the psychedelic Ecstasy, which can lead to dehydration, and the mixture of alcohol and GHB, commonly known as a date rape drug. Since 1994, the national number of medical emergencies from Ecstasy has increased ten times.

THE PLAYERS AND THE LAWS

New York Nightlife Association - A coalition of music companies and club owners that would like the city to look more favorably on the nightclub industry.

Social Club Task Force - Building and Health Departments officials, Fire Marshall, and Police Department who make inspections.

State Liquor Authority - Issues liquor licenses to New York establishments. Many in the city, including Queens Borough President, Claire Shulman do not think the state authority is responsive enough to city issues. Shulman has proposed a bill to create a City Liquor Authority.

Department of Buildings - Issues certificate of occupancy for clubs.

Department of Consumer Affairs - Issues cabaret licenses for dancing.

Community Boards - Neighborhood government bodies hold public hearings and can vote to reject liquor license applications.

Nuisance Abatement Law - Three arrests at a club means it can be shut down.

Padavan Law - Named after one of its sponsors, Senator Frank Padavan, the law gives local communities a right to have their views expressed on certain liquor license applications. It does not give Community Boards the right to give the final rejection of an application, only to weigh in with their concerns.

"Sure Ecstasy is a problem in some places. Sometimes as soon as you walk into a place, there is someone right there trying to sell you something," said Tallow, the student and club regular. "But clubs also get too much blame. People make their choices to find what they want. It is not necessarily the clubs' fault."

Two of the clubs that hires ambulances--Twilo and Roxy -- said the private ambulances are for the protection of their patrons.

"When people go down [from GHB], 911 is useless," said Jason McCarthy, the general manager of the Roxy in a recent New York Times article. "I do this to protect my clients who go into cardiac arrest."

Twilo, in particular, has had drug problems. Last summer, a medical student passed out on a dance floor and died. And two club-goers are suing the club alleging that employees hid them in a backroom when they overdosed so that police would not find out.

"We are blamed for everything and we are never given the benefit of the doubt," said Peter R. Sullivan, Twilo's lawyer. "The reason we are still open is because we have been able to prove to the courts that we are the safest club in New York."

The clubs also say they have asked for help from the police in fighting the drugs, but received no assistance.

High profile cases of guns and violence at clubs, particularly involving famous hip-hop stars, have also created negative perception. Last year1s shooting at Club New York that put rap stars Sean "Puffy" Combs and Jamal "Shyne" Barrow on trial produced daily news stories for months. Just weeks ago, rapper Jay-Z was charged with concealing a weapon outside the club Exit.

Such cases have apparently inspired the New York Police Department to create a special "hip-hop" patrol unit that cruises by certain hot spots looking for rappers involved in illicit activities.

CLUBS SPEAK OUT

Clubs say that the incidents that make headlines are small when the number of discos and patrons are considered. They also contend that many of their efforts for improving relations with the city and residents (like a recorded message in cabs from Madonna urging club-goers to be responsible) have been snubbed by city officials.

"When there are events at Madison Square Garden or parades, organizers hire off-duty police officers," said Andrew Rasiej, who also runs Digital Club Network, which broadcasts music events online. "We've asked police and the city for the same thing. Their response has been: No."

Another consideration, club owners say, should be the positive economic impact they have on the city.

Indeed, a recent study by the Manhattan Borough President's office reported that the city's bars, clubs, and ballrooms generate three billion dollars for the local economy and account for more than 27,000 jobs. A survey commissioned by the New York Nightlife Association claims that the nightclub industry brings in more people than the city1s sports teams, Broadway theaters, the Metropolitan Museum of Art and the Empire State Building combined.

And New York does not provide a particularly business friendly environment for those who want to open a disco. A total of 26 separate credentials from various city agencies are needed, and some owners say they have spent more than one million dollars without assurance that their club will be allowed to open.

Zoning may be the most difficult part of the equation.

In the past, clubs could find homes in neighborhoods that were more industrial, but as housing and land for new residential development grows more scarce, the areas that welcome nightclubs are growing smaller. In the mid-19801s, neighborhoods like the West Side were rezoned for mixed use by commercial, real estate, and manufacturing interests. The zoning threw everyone into inevitable conflict.

"When you sell a loft in the meatpacking district for two million dollars, those people expect the same quality of life as those who live on Gramercy Park," said Rasiej. "But it is not going to happen."

KIDS THESE DAYS: THE HISTORY OF CLUBS

Of course, the battles between nightclubs, residents, and politicians are nothing new.

In the 1860's John Allen, the owner of a dance hall on Water Street that doubled as a bordello, was commonly referred to as the "wickedest man in New York." By 1910, the political reformers were able to convince the state legislature to amend the city charter so that it required licensing of dance halls. Soon after, many social venues began calling themselves dance academies and offered dance instruction in an effort to circumvent regulations and present a more positive image to the public.

Opposition did not deter dancers and clubs. By 1925, there were 786 licensed dance spaces in the five boroughs, 238 of which were in Manhattan. And a study at the same time calculated that 14 percent of the city1s males and 10 percent of the city1s females between 17 and 40 years old went dancing at least once a week.

The modern discotheque with its fashionable celebrities, elaborate sound systems and lighting, and unique problems did not emerge until the 19601s.

Early discotheques included the fashionable Ondine on East 59th Street, Le Club on East 55th Street, and Arthur, owned by the son of Adlai Stevenson, that featured rock and roll bands. The Electric Circus on St. Mark's Place opened in 1967 and featured trapeze performance artists as well as parties for famous people, hippies, and students. In 1977, working-class discos in the boroughs were made world famous by the film, Saturday Night Fever.

Studio 54 became the best-known club of the 1970's with its policy of selective admittance, drug use, and decadent parties. The party may have seemed to go on forever, but in fact it ended in 1979, when the owners of Studio 54, Stephen Rubell and Ian Schrager were arrested by federal agents and convicted of tax evasion.

By the 19801s clubs began opening in unused warehouses in Chelsea, Lower Manhattan, and the meatpacking district. This angered residents. They began organizing against them.

The most tragic and deadly nightclub incident happened in the Bronx in 1990 when Julio Gonzalez set fire to Happy Land Social Club after an argument with his girlfriend. The fire claimed 87 lives and highlighted the problem of illegal clubs that operate without proper licenses and safe building codes.

MAKING GOOD NEIGHBORS

"New York has a well-deserved reputation as the 'city that never sleeps,'" said Manhattan Borough President Virginia Fields. "Unfortunately, in some instances, conflicts sometimes arise between these types of businesses and communities in which they are located."

Toward the end of helping clubs become good neighbors, Fields has issued a number of recommendations that include creating special police units to enforce existing rules on nightclubs, reform of the State Liquor Authority procedures, and improved zoning.

Other local measures are also underway. West Side City Councilmember Christine Quinn said community boards two and four in her area have created joint hearings on the use of the meatpacking district that creates better dialogue between nightclubs and residents.

However, community groups admit that even well meaning club owners are fighting a losing battle. "The days when the neighborhood would welcome a large venue for 2,000 people are over," said Garcia. "And there is no doubt that any new club is paying for all of the bad people that came before them."

Non-profits, like Dance Safe an organization that works to promote safety and health at raves and nightclubs, are also doing their part to try to improve the scene. Dance Safe sets ups booths and provides water, information, condoms, and ear plugs. They sometimes even perform a chemical analysis of patrons' Ecstasy pills to make sure they do not contain contaminants.

"People are going to do certain things," said Paul Hale of the New York City Dance Safe chapter. "We do not condone or condemn drug use. We try to educate and reduce the harm people can do to themselves and others."

Hale also noted that most of the people he encounters at clubs are sober and that many overdoses of Ecstasy and GBH have occurred at frat houses and college parties, not just at nightclubs.

Ultimately, the battles over nightclubs pitch each interest against a host of opponents.

Residents complain that police, the State Liquor Authority, and the city are not doing enough to enforce the present laws. The city complains that the long court cases against nightclubs often do not produce results because of unenforceable laws. Fire and police officials say they are cracking down on the problem and that surprise raids that they conduct yield evidence that clubs are routinely breaking the law and putting patrons in danger.

Nightclubs complain that they have few friends in the city.

The only people not complaining are the thousands of young people who, egged on by hip magazines and designers and music promoters and various celebrities, each night are on the lookout for the latest, hottest, and most fashionable place to be. Or, if they are complaining, nobody can hear them through the beat.

Related Articles

 

Sanctioning Police Malpractice


What is the proper professional punishment for a mistake that results in a person's death? A physician's fatal error, for example, can result in the withdrawal of hospital privileges and sometimes the revocation of the medical license, though seldom is either punishment imposed for a first offense. Is medical malpractice a good analogy for police malpractice? What should the punishment be for a police officer's fatal error?

Police Commissioner Bernard Kerik recently announced that the four officers acquitted by an upstate jury of all criminal charges in the killing of Amadou Diallo would be confined to desk jobs, but not punished further. (The 22-year-old unarmed West African street vendor was killed on the night of Feb. 4, 1999, while standing in front of what turned out to be his Bronx home.)

New Yorkers, according to the New York Daily News, do not agree with Kerik.

In a Daily News/New York 1 poll, respondents were told that the police department "has decided not to discipline the four officers involved in the shooting death of Amadou Diallo." When asked whether they approved or disapproved of the decision, only 21 percent approved, and 64 percent disapproved.

These overall figures mask a huge racial disparity: 89 percent of black New Yorkers disapproved of Kerik's decision, and only 2 percent approved. White New Yorkers, however, showed a different pattern: only 43 percent disapproved, 39 percent approved, and 18 percent were not sure.

The public's distress with the police department's handling of the shooting remains very high even as crime in the city has hit a record low. The police department announced on April 30 that murder, which had already been at the lowest level in three decades, had plunged another 18 percent, from 237 to 194, during the first four months of 2001. Both robbery and burglary were also down more than 16 percent.

Commissioner Kerik, quoted in the New York Post, credited police department initiatives for the crime drop, citing the department's focus on gangs, its high priority on warrants for violent felons (warrant arrests are up 50 percent), and the fine-tuning of the department's assault on drugs. Kerik summarized his approach as "going after the bad people and taking them off the streets."

But, of course, the tragedy of Amadou Diallo was that he wasn't a bad guy. He was a good person, killed by the police searching for a vicious rapist. And while New Yorkers are very happy indeed with the drop in crime, they are chagrinned about the mild official punishment of the four officers, who were barely sanctioned for police malpractice.

Mickey Blum, president of Blum & Weprin, which conducts the polling for the Daily News and New York 1, says that New York opinion has stayed fairly consistent since the shooting. "Something dreadful happened," she says. "Something went very wrong. And most New Yorkers have pretty consistently felt that those cops and the department should be held responsible in some way." She adds that many New Yorkers think that if Diallo had been white he would not have been killed.

RACIAL PROFILING'S UGLY FACE

This reminds New Yorkers once again that a racial disparity exists on many issues of crime and justice. Much of that disparity is due to the reality that day in, day out, black Americans are more vulnerable than white Americans to being stopped by the police, fairly or unfairly.

As Harvard Law Professor Randall Kennedy points out in his book, "Race, Crime, and the Law" (Pantheon), cops stopping an African-American male for no apparent reason other than the color of his skin is not unlawful in most jurisdictions. The courts permit law-enforcement officials to use race as a "risk factor" that justifies a stop-and-search procedure.

Kennedy calls this strategic racial discrimination by police officers a "short cut," a helpful way for police to use their resources more efficiently. If 80 percent of drug-runners are young black men, what's wrong with taking race into account when investigating the crime, asks Kennedy, himself an African-American.

What's wrong, he answers, is that the police use of race as a proxy for suspiciousness creates enormous day-to-day distrust and alienation among black Americans. And that matters to all Americans for two reasons. First, opening the door to strategic, rational discrimination condoned by the courts (including the Supreme Court) also opens the door to invidious racial discrimination, the kind that all decent people would condemn.

Second, a black person's being stopped by the guardians of law and order comes back to haunt the community when those who have been detained become lawyers, judges, jurors, and bring with them the anger they feel over unwarranted harassment and humiliation by police and, by extension, the courts. Halting this practice will not solve all problems, but will go far toward draining the deep sense of injustice African-Americans feel, Kennedy argues.

In the May 2 Daily News, mayoral candidate Fernando Ferrer applies a similar argument to New York, pointing out that what he calls the "tragically bad judgment" of the Diallo officers cost an innocent man his life. This should, argues Ferrer, cost them their badges and guns. The failure "to prosecute police misconduct vigorously," he writes, sends the message that the justice system is flawed, and that it protects others, not them. He concludes: "When you create pervasive doubt about the fairness of the system, it becomes that much more difficult for law enforcement to win convictions before juries, no matter how legitimate the case."

MISDEMEANORS AND POLICE ABUSE

The tragedy of Diallo is so enormous that it overwhelms a more routine police-community problem -- and that's the problem of discretionary stops by police of people either acting suspiciously or committing minor offenses. There is no question but that a safe city requires smart, competent, decent police officers to patrol the streets and exercise careful judgment in stopping citizens. Yet the problem of discretionary stop-and-frisks has festered in New York for a long time, as has the problem of full arrests for minor offenses. Now the Supreme Court has weighed in with a 5-4 decision validating full arrest -- including handcuffs and jail -- for a petty offense. In the case before the Court, it was a suburban soccer mom in Texas not wearing a seat belt.

A cop stopped Gail Atwater, who said that she had been driving slowly (15 miles per hour) without a seat belt on an empty street to look for a lost toy. She had let her children unbuckle their belts to look out the windows.

Officer Turek had stopped her once before for not wearing a seat belt, a misdemeanor in Texas. Writing for the majority, Justice David Souter summarized what happened: "Respondent Turek, then a Lago Vista policeman, observed the seat-belt violations, pulled Atwater over, verbally berated her, handcuffed her, placed her in his squad car and drove her to the local police station, where she was made to remove her shoes, jewelry and eyeglasses, and empty her pockets. Officers took her 'mug shot' and placed her, alone, in a jail cell for about an hour, after which she was taken before a magistrate and released on bond. She was charged with, among other things, violating the seatbelt law. She pleaded no contest to the seat-belt misdemeanors and paid a $50 fine."

Thus the Supreme Court held Officer Turek's action to be reasonable under the Fourth Amendment, which begins: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Souter noted the humiliating character of the arrest over a "very minor criminal offense," but said he was comfortable relying on the "good sense" of local lawmakers and peace officers to keep such humiliating arrests from becoming excessive. He said there is a "dearth of horribles demanding redress."

A dissent, written by Justice Sandra Day O'Connor, pointed out the officer's intent to "threaten, frighten and humiliate" Atwater, and the completely unnecessary character of the arrest and jailing. The common law, argued O'Connor, would have barred the arrest because the traffic violation was not a breach of the peace, making the arrest unreasonable.

Most Americans probably thought that our majestic U.S. Constitution protected us from this kind of police excess. An arrest, of course, is the ultimate seizure of the person -- and an arrest over a patently trivial matter would seem on its face to be unreasonable.

In the last few years the Supreme Court has tended to affirm the authority of police officers to stop, detain, and search citizens in a wide variety of circumstances. It has substantially expanded the ability of cops to seize and search vehicles, including handbags found in vehicles, without warrants. It has okayed police stopping someone who has fled on sight of a cop in a high-crime area. On the other hand, the court also held that a cop could not search a vehicle that had been stopped for a traffic violation and only a traffic violation. Thus there's some irony that it was a seat-belt violation -- a truly low-level offense -- that has provoked this assertion of a cop's authority for full arrest for any offense.

Newspaper editorials across the country have expressed a great deal of anger and outrage about the decision. But here's the shocking thing: The Supreme Court is right, or at least "right" in the sense that legislatures and courts have been approving the practice of what they call "warrantless" arrests for misdemeanors for 200 years. So why are many of us shocked? Perhaps because it has not happened to most of us personally.

Criminal defense lawyer Robert E. Levy points out that in New York a police officer can arrest anyone for any offense, including a petty offense, that is committed in his or her presence. A cop can arrest you for a speeding ticket. Cops generally don't, because they are guided by internal police memoranda on what is "arrestable." For a while, says Levy, petty offenses were arrestable in New York. A public uproar resulted in the police pulling back from this. The public didn't want arrests for jay-walking, littering, or dogs off the leash, however annoying some of these habits might be.

Levy also notes that an arrest is not supposed to be a punishment. Its purpose is to gain the appearance of the offender before a magistrate for adjudication. The cop is simply a conduit. If the offender has identification or is known personally to the cop -- as was Mrs. Atwater in the Texas seatbelt case -- and if there is no other reason requiring an arrest, such as hidden drugs or a weapon, then a desk appearance ticket is the usual and proper procedure.

But here is the importance for New York and other big cities: Misdemeanors or less have provoked some of the worst police incidents. Rodney King's driving while intoxicated in Los Angeles, Anthony Baez in the Bronx tossing a football that hit a police car, or the young man with several misdemeanors outstanding killed by a police officer in Cincinnati, precipitating the recent riots. They were all minor offenses with grave consequences.

And the New York Police Department's policy of regularly strip searching people arrested on misdemeanor charges cost the city $50 million four months ago to settle a class action law suit involving 63,000 people illegally searched in Manhattan and Queens. You cannot do a strip search if you know who the person is, says Levy, and have no reason to think drugs or weapons or anything dangerous is involved beyond the petty offense: "The key word in the Fourth Amendment is 'unreasonable.' The public was outraged, the city agreed to the settlements, and the strip searches stopped." (The strip searches apparently continued in Brooklyn Central Booking, according to a suit filed May 2 in federal court. Newsday says that the owner of a manufacturing company, a teacher, a high school student and four other Brooklyn residents have sued the city claiming they were improperly strip searched after arrests on misdemeanor charges. Their lawyers said thousands of other people arrested on misdemeanor charges may also have been improperly searched over the past three years.)

If the Supreme Court is right that a full arrest can follow an offense, no matter how petty, then we need legislation to tighten arrest standards to ensure that spiteful officers, like Officer Turek in Texas, do no further harm. Better yet, we need legislation limiting arrests for trivial offenses.

Says Levy: "In this modern age, the cop is in constant radio communication, and can always find out whether a person is wanted or not. People these days are generally carrying enough identification that it would be unreasonable to seize them when all you want them to do is appear in order to pay a fine. Certainly statutes should forbid an arrest with jail when the offence is one that is either highly unlikely to lead to jail--or when jail is even statutorily forbidden."

The day the Supreme Court decision was handed down affirming the reasonableness of the arrest, the Texas legislature passed a bill outlawing such arrests. The New York State legislature should consider the same. Texans are no longer vulnerable. But New Yorkers are.

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.

Presidential Pardons


From the founding of the country forward, executive pardons by presidents and governors have been a regular means of mercifully correcting overly harsh laws or easing overly punitive sentencing in individual cases. As former pardon attorney Margaret Colgate Love (Department of Justice, 1990-1997) pointed out in the June 2000 Fordham Urban Law Journal, Americans incorrectly tend to associate pardons with politics and controversy. (I would add celebrity and notoriety to the list.) Few realize that for most of American history the pardon power was exercised routinely and quietly to give relief to ordinary people convicted of what Love calls "garden-variety" crimes.

PARDONS AS A CORRECTION TO THE JUSTICE SYSTEM

Writing several months before the Clinton exit pardons erupted onto the American scene, Love deplored the disuse and disrepute into which she feared the federal pardon power had fallen. Pardons are a necessary tool for correcting what she called the "harsh inflexibility" of the criminal justice system: in so many cases the legally mandated punishment seems morally wrong. Just as serious, she wrote, the "growing crime control infrastructure . . . reflects poorly on our national humanity."

Up until the Reagan administration, every administration from Franklin Roosevelt's to Jimmy Carter's had acted favorably on 30 percent or more of pardon petitions, says Love. Under Reagan, the percentage of favorable pardons dropped by a third to 20 percent. President Reagan also reversed course over his predecessors in absolute numbers. He pardoned 393 individuals in his two terms, compared to the 534 pardoned by President Carter in one term, says Love.

President Bush went even further. He granted only 68 pardons in his one term, or 7 percent of pardon petitions--perhaps in part because the Willie Horton clemency scandal in Massachusetts had helped him defeat Gov. Dukakis for the presidency.

Love attributes the decline in pardons to the politics of crime control, in which both Republicans and Democrats have competed for advantage in a "race to incarcerate," producing what Love calls "a prison industrial complex with a powerful institutional constituency."

THE PARDON CONTROVERSY IN NEW YORK

And now we have the Clinton exit mess, a controversy which is not about to go away in New York, home or former home to many of those pardoned. Since some of the pardons are thought to have been helpful to the successful campaign of our new junior U.S. Senator, Hillary Clinton, the specter of unseemly politics floats in the background.

This is not the first round of pardon controversy in New York. In August 1999 Clinton granted clemency to 16 members of a Puerto Rican nationalist group serving lengthy prison sentences for terrorism. Republicans charged that clemency was an attempt to strengthen Mrs. Clinton's Senate bid. The White House denied she had played any role. (The allegations were examined in the Findings of the Committee on Government Reform, available online)

Thus the pardon cauldron already held a volatile mix before the early February announcement from the Bush administration that Mary Jo White, the U.S. attorney for the Southern District of New York, would be the prosecutor in charge of investigating the pardons. The Chicago Sun-Times called her "the most feared and respected prosecutor in the United States." (Even without White, the Southern District, which includes Manhattan, is considered to be the highest profile prosecutor's office in the nation.)

Although Clinton appointed White in 1993, they quickly became non-friends. Their aloof relationship cooled even further when she looked into charges that the Teamsters Union funneled cash to the Democratic Party during the 1996 election. President Clinton failed to consult her or her office when he pardoned New Yorkers or former New Yorkers, including fugitive financier Marc Rich and his partner Pincus Green.

Now White has opened a criminal investigation about whether Rich contributed to the Democratic Party in exchange for the pardons. (Rich's former wife gave hundreds of thousands of dollars to the party and to Clinton's presidential library.) Or, for that matter, did Rich or Green commit any other violations of federal law? In grand prosecutorial tradition, White is embarking upon a wide-open investigation. She is authorized by the Bush administration to investigate or delegate the investigation of any of the 177 pardons granted by Clinton during his last days in office.

PRESIDENTIAL PARDONS AND THE CONSTITUTION

On one historical fact, every historian agrees: The Founders of this nation did not want a king. But because most of them did want a powerful executive, they looked to the model of the English monarchy for guidance. They discarded some kingly powers (such as unlimited control of appointments), and chose the ones they thought most suitable--including the unlimited power to pardon.

They were confident they had constructed the office well. Indeed, Alexander Hamilton in the Federalist Papers predicted the presidency would be "filled by characters preeminent for ability and virtue." This assumption, though quickly proved false, makes the pardoning power seem less reckless.

More important to them, however, were the troubled times of the 18th century, riddled with class warfare, particularly in England. Not accidentally, it was also a time of brutal criminal law, in which nearly every offense--theft, forgery, poaching--was a capital crime. While juries regularly tempered the law's cruelty by refusing to convict, huge numbers of English subjects were routinely sentenced to be hanged. The king's pardon, supported even by conservative Parliamentarians like Edmund Burke, moderated the law when necessary, to retain popular support.

As historian Douglas Hay argued in his study of 18th century crime, "The law was important as gross coercion; it was equally important as ideology. Its majesty, justice and mercy helped to create the spirit of consent and submission" that maintained the loyalty of the English poor. Royal pardons, wrote Hay, "were presented as acts of grace rather than as favours to interests."

Or as William Blackstone wrote in his definitive commentaries on English law: "These repeated acts of goodness" had the effect of endearing "the sovereign to his subjects, and contribute(d) more than anything to root in their hearts that filial affection, and personal loyalty, which are the sure establishment of a prince." That's the theory, anyway.

In their search for a well-ordered government overseeing a stable society, the founders endowed the presidency with this unlimited kingly power to pardon citizens as an outlet to overly severe laws or courts. According to Hay, however, even in the king's hands the power was often suspect. The "grounds for mercy," he wrote, "were ostensibly that the offence was minor, or that the convict was of good character, or that the crime he had committed was not common enough in that county to require an exemplary hanging."

Under this analysis, we might put the president's pardon of his brother's cocaine conviction in the "minor" category--and therefore suitable. (Though many observers would quickly point out the thousands of unpardoned inmates, including mothers, whose cases are at least equally worthy.)

Applications that go through regular channels in the Department of Justice--which Clinton pretty much bypassed--nearly always put forward an argument of good character. The applicant is cited for family values, community and church service or generous philanthropic contributions--though often of ill-gotten gains.

Hay doubts that most kingly pardons were meritorious. On the contrary they "served to save a good many respectable villains." Then, as now, the pardon tended to go to the well-off criminal because "mercy was part of the currency of patronage. Petitions were most effective from great men, and the common course was for a plea to be passed up through increasingly higher levels of the social scale, between men bound together by the links of patronage and obligation." But there was a downside to all this.

The power had to be used judiciously or its effects could boomerang. Says Hay: "The aim above all was to avoid exposing the law and authority either to ridicule or to too close scrutiny." Ridicule of the law and close scrutiny of this once unquestioned presidential power are quickly becoming two more legacies of the Clinton years. The push is on to restrict the presidential pardoning power, which would entail an enormous political and constitutional fight.

DAMAGE TO THE JUSTICE SYSTEM

Mercy must be an active part of a healthy justice system. In a March 6 article in the New York Law Journal, two former federal prosecutors, Elkan Abramowitz and Barry A. Bohrer, argue that whatever damage Clinton's pardon of Marc Rich did to Clinton's own reputation and legacy, the graver concern is with the damage he may have inflicted on the institution of executive clemency itself. That's because the possibility of obtaining mercy outside the rigid procedures that govern the criminal justice system is an important safeguard both to those seeking absolution, and to "a public committed to the notions of fairness and justice in the administration of its criminal laws."

In other words, the possibility of mercy and forgiveness functions as a protection for everyone. While many commentators have attacked unlimited presidential discretion in granting pardons as an anomaly that should now be corrected, these two former prosecutors see it as "the ultimate check on legislative or judicial injustice."

After all, we live in a time of harsh criminal laws that are often made even more severe by mandatory minimum sentences essentially eliminating judicial discretion. Alexander Hamilton could have been writing about our own time: "Humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."

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.

Youth Gangs


At a recent public forum at City Council, police, school officials, politicians, and other experts offered their best guesses as to why the number of gang members in the city has risen over 30 percent in the last year.

"We live in a criminal environment," said one expert. "There are cops in our schools, the mayor is obsessed with crime, innocent people are being shot 41 times. It creates a mentality of crime in young people."

This particular expert has first-hand experience with the question. She is 19 years old and a member of the Latin Queens, complete with the tattoo of a crown on her ankle.

The city has spent increased amount of money and energy in recent years trying to crack down on gangs that recruit young people like her.

In 1997, the mayor stepped up his effort to combat gangs, focusing on them as criminal enterprises, not just as groups of juvenile delinquents. In 1998, the Board of Education agreed to give school security over to the police department with officers patrolling some hallways. And last year, a bill was introduced that would give police the power to arrest suspected gang members loitering on street corners.

Despite such efforts, gangs and their crimes are a routine part of news headlines. Recently 18 members of The Mexican Boys gang were arrested for carrying knives and guns on their way to a party of a rival gang in Brooklyn. The Albany County jail had the highest rate of violence in its history this year, with many of the incidents occurring between New York City and upstate gangs. And last month, three teenagers were arrested in connection with the shooting death of a man in Central Park, the first homicide there in two years. The teens claimed affiliation with both the Bloods and the Crips, though police later determined that they were lying. Clearly, gangs still hold some appeal.

The 19-year-old member of the Latin Queens, who asked that only her last name, Vargas, be used, suggested some reasons why.

"There are no jobs, no programs for youth, our schools are falling apart," Vargas said. "Our youth bond together for protection and opportunity."

While not everybody would agree with her - New York offers more cultural opportunities and youth programs, some say, than many other cities with gang problems -- Councilmember Ken Fisher, chair of the Youth Services Committee, seemed to Agree with Vargas at least in part. "I find it troubling that the same day we hear the police testify to an increase in gang members the mayor proposes a 20 million dollar cut in funding for youth services," said Fisher.

Youth gangs have been a part of New York City life as long as young people have been hanging out on the streets looking for something to do. Unlike adult crimes, most juvenile crime is committed in groups. And gangs offer a sense of identity, camaraderie, and financial payoff for their loyalty.

Notable New York City Gang Movies

West Side Story (1961)
This Academy Award winning adaptation of the Broadway musical pits two rival street gangs-the Jets and the Sharks-against each other in a song-and-dance version of Romeo and Juliet.

The Cross and the Switchblade (1971)
Based on a true story, Pat Boone plays a small-town preacher who helps gang leader Nicky Cruz get off the streets and onto the "straight and narrow."

Mean Streets (1973)
Robert De Niro plays a wanna-be hood on the streets of Little Italy in Martin Scorsese's breakthrough film.

Lords of Flatbush (1974)
Starring a young Sylvester Stallone and Henry Winkler, the movie tracks the action and ethos of 1950's teen leather-gang in Brooklyn.

Warriors (1979)
An action flick that reached cult status for its inner city kids with big-hair waging massive turf wars.

Year of the Dragon (1985)
A Polish cop's attempt to rid Chinatown of crime and drug cartels turns the neighborhood into a modern Dodge City.

New Jack City (1991)
New York City street thugs turn into a massive drug syndicate and make actors Ice-T, Wesley Snipes, and Chris Rock household names.

Gangs of New York (due out Fall 2001)
Leonardo DiCaprio and Cameron Diaz star in an $80 million blockbuster about the rise of Irish and Italian youth gangs in the Bronx of the nineteenth century.

The difference is that today's gangs are more widespread and more dangerous. It is estimated that 94 percent of medium and large-cities in the U.S. have gang activity. And with easy access to guns and the drugs market, gangs present a more substantial criminal force.

"These kids are not afraid of death or jail," said Robert DeSena who has worked with Brooklyn gangs since 1975. "Once a kid reaches that mindset, you've got a hard-core challenge."

DEFINING IMAGE

Popular images of gang members range from Tony, who fell in love with a rival gang member's sister in West Side Story, to the violent gang-bangers who run the Los Angeles streets in the movie Boyz 'N the Hood. There are a wide range of perceptions, and misperceptions, of what youth gangs do and who is a part of them.

The New York Police Department defines a gang as a group that engages in criminal behavior and has a formal organizational structure, identifiable leadership, and territory. The U.S. Department of Justice estimates that there are approximately 750,000 gang members in 28,000 gangs in the U.S., although no one really knows how many there are because accurate counts are nearly impossible to make. It is estimated that females make up approximately 20 percent of the national gang population. And while the average age of gang members is 17, nearly half of all gang members range in age from 18 to 25 year.

The New York Police Department recently reported that the known gang members in the city increased from 11,000 to 15,000 in the past year. However, many researchers doubt the validity of such numbers.

"I've stayed away from New York statistics for years," said Malcolm Klein from the Center for Research for Crime and Social Control, who has been studying gangs for over two decades. Prior to 1976, New York City's Youth Services Administration kept more dependable gang statistics in the city, but in the fiscal problems of the city, the administration was disbanded and tracking was handed over to police.

While the ethnic make-up of gangs, the streets they call "turf," and the names they give themselves have changed over time, the common factor is social class. Most gang members come from lower or working-class backgrounds, looking for a way to gain power in the social order.

HISTORY OF GOTHAM STREETS

Youth gangs have always been part of New York City life.

In 1807, members of the African Methodist Episcopal Zion Church in lower Manhattan complained to the city about the gangs of white, working class youths who harassed churchgoers, according to the book, "Gotham" by Edwin G. Burroughs and Mike Wallace. By the 1820's, the authors explain, young men "swaggered about the city after work and on Sundays, staking out territories, picking fights, defending the honor of their street and trade."

Until the mid-1900's, a majority of gangs in America were white, composed of boys from various European backgrounds.

The postwar gangs in the 1940's-1960's were primarily "turf" gangs who defended their areas against neighboring ethnic groups and new immigrants. In his recent book, "Vampires, Dragons, and Egyptian Kings," Eric Schneider presents Postwar gang life as a world of switchblades, zoot suits, slums, and bebop music. Young men took on brash names like Enchanters, Young Lords, Bishops, Greene Avenue Stompers, and the Latin Gents.

While youth gangs were often seen as "violent, short-lived, disorganized collections of misfits whose main purpose was thrill seeking and immediate gratification," says Schneider, they provided a social structure for working-class boys that provided a sense of identity, place, and masculinity.

By 1970, about four-fifths of gang members were either African-American or Hispanic. And the late 1980's and early 1990's saw the growth of West Coast gangs like the Crips and the Bloods, although most experts dispute the notion that the gangs actually migrated across the country. Instead they are local, non-centralized gangs that go by the same names and wear the same identifying colors.

Today in New York, the most prominent New York City gangs are Bloods, Crips, Latin Kings, Nietas, Five Prisoners, Silenciosos, Matatones, Rat Hunters, and Zulu Nation. They are groups that span ethnicity, race, and neighborhoods.

FROM TURF TO DRUGS, FROM FISTS TO GUNS

Two major changes in recent years have transformed the nature of youth gangs.

First, the influx of illegal drugs--first heroin, then cocaine, and then crack cocaine--changed street gangs from social groups to economic enterprises. Instead of fighting over the geography of turf, gangs began to wage war over corners used to sell drugs. The institution of the Rockefeller drug laws in 1973 and stiffer prison penalties for adults, had a bitterly ironic result: Drug dealers began to recruit minors to do much of their selling on the streets.

While gangs have become a significant part of the drug trade (a recent study that gangs are involved in about a quarter of the drug arrests), most researchers argue that youth gangs are not major drug traffickers.

"Drug gangs separate themselves from street gangs," said Klein. "Drugs requires tight corporate-like structure that youth do not have."

The second and perhaps the most devastating change is the availability of guns. It is estimated that gang related homicides increased nearly five times between 1987 and 1994.

"Violence has always been around, usually concentrated amongst the poor," said Geoffrey Canada, who runs the non-profit Rheedlin Center for Children and Families in Harlem. "The difference is that we never had so many guns in our inner cities. The nature of the violent act has changed from the fist, stick, and knife to the gun."

THE RIKER'S ISLAND GANG MUSEUM

To visit the offices of the Gang Unit at Riker's Island is to visit a virtual museum of gang paraphernalia.

The walls are covered with photographs of gang member tattoos, red and blue bandanas from the Crips and the Bloods, and rosaries with black and yellow beads used by members of the Latin Kings. There is a display of home-made weaponry: knives made from pocket combs, razor blades fashioned from bottle caps, and even a small gun made from a toilet paper roll and rubber bands. And on the desk are computers used to enter the information into the city's gang database.

It is all part of the Corrections Department's "zero tolerance" policy on gangs and the city's attempt to enhance its gang intelligence.

At Riker's Island, gang members are stripped of any kind of identifying clothing or trinkets, forced to live in the same rooms with rival gangs, and any act of violence automatically adds time to their sentence. The Correction's Department says it is working. The incidence of violence in the city's jail is at the lowest in over a decade.

The School Safety and Prevention Service's division of the New York City operates under a similar notion. If any student exhibits gang behavior-wearing colors, using hand signals, graffiti, or any criminal activity-they are immediately removed from school.

Efforts to pass legislation to control gangs are generally more difficult. Most of the state legislation has to do with graffiti and tougher sentences for assault.

Last year in the city, Councilmembers John Sabini and Michel Abel introduced a bill that would give police the power to arrest suspected gang members loitering on street corners. The legislation drew criticism from civil rights groups and others who thought the law would lead to police abuse. Currently the proposed legislation is still sitting in committee.

FINDING SOLUTIONS

While legislators and police often take the credit for drops in gang related crime, the ebb and flow of gangs are more susceptible to other less tangible factors.

There are several theories of why New York City has less of a problem with gangs than cities like Los Angeles and Chicago.

One is that today's gangs operate in an automobile culture that facilitates drive-by-shootings and drug dealing, and enables gangs to travel in greater anonymity. New York's mass transit system makes it more difficult for such activities. Another theory is that New York City has more opportunities for young people that fill the similar needs as a gang.

"In New York you can be part of a religious group, an arts club, a cultural group, you can even be part of a doo-wop group," said Councilmember Ken Fisher, who is Chair of the Youth Services Committee. "There are more opportunities for someone to belong to something."

There are also a host of non-profits that work with gang members on a one-to-one basis. The main challenge for these groups is to offer something that replaces the protection, identity, and money young people gain from being part of a gang.

Robert DeSena, a retired schoolteacher and founder of Council for Unity a group that works to bring rival gangs together says many of the gang members he meets are looking for a way out.

"Violence is exhausting and gangs realize they are unable to exterminate the opposition," said DeSena. DeSena works to build a network of protection and support that replaces gang life. The youth are responsible for running their own cultural events, support meetings, marketing the programs, soliciting members-using skills they had previously used on the street. The members are paired with alumni of the program who work as mentors, often hiring the youth to work at their companies.

"You get an ex-gang member who works for Price Waterhouse to take an interest in a kid," said DeSena, "and the kids will take notice."

OTHER LINKS:

The Real Gangs of New York


At a recent public forum at City Council, police, school officials, politicians, and other experts offered their best guesses as to why the number of gang members in the city has risen over 30 percent in the last year.

"We live in a criminal environment," said one expert. "There are cops in our schools, the mayor is obsessed with crime, innocent people are being shot 41 times. It creates a mentality of crime in young people."

This particular expert has first-hand experience with the question. She is 19 years old and a member of the Latin Queens, complete with the tattoo of a crown on her ankle.

The city has spent increased amount of money and energy in recent years trying to crack down on gangs that recruit young people like her.

In 1997, the mayor stepped up his effort to combat gangs, focusing on them as criminal enterprises, not just as groups of juvenile delinquents. In 1998, the Board of Education agreed to give school security over to the police department with officers patrolling some hallways. And last year, a bill was introduced that would give police the power to arrest suspected gang members loitering on street corners.

Despite such efforts, gangs and their crimes are a routine part of news headlines. Recently 18 members of The Mexican Boys gang were arrested for carrying knives and guns on their way to a party of a rival gang in Brooklyn. The Albany County jail had the highest rate of violence in its history this year, with many of the incidents occurring between New York City and upstate gangs. And last month, three teenagers were arrested in connection with the shooting death of a man in Central Park, the first homicide there in two years. The teens claimed affiliation with both the Bloods and the Crips, though police later determined that they were lying. Clearly, gangs still hold some appeal.

The 19-year-old member of the Latin Queens, who asked that only her last name, Vargas, be used, suggested some reasons why.

"There are no jobs, no programs for youth, our schools are falling apart," Vargas said. "Our youth bond together for protection and opportunity."

While not everybody would agree with her - New York offers more cultural opportunities and youth programs, some say, than many other cities with gang problems -- Councilmember Ken Fisher, chair of the Youth Services Committee, seemed to Agree with Vargas at least in part. "I find it troubling that the same day we hear the police testify to an increase in gang members the mayor proposes a 20 million dollar cut in funding for youth services," said Fisher.

Youth gangs have been a part of New York City life as long as young people have been hanging out on the streets looking for something to do. Unlike adult crimes, most juvenile crime is committed in groups. And gangs offer a sense of identity, camaraderie, and financial payoff for their loyalty.

Notable New York City Gang Movies

West Side Story (1961)
This Academy Award winning adaptation of the Broadway musical pits two rival street gangs-the Jets and the Sharks-against each other in a song-and-dance version of Romeo and Juliet.

The Cross and the Switchblade (1971)
Based on a true story, Pat Boone plays a small-town preacher who helps gang leader Nicky Cruz get off the streets and onto the "straight and narrow."

Mean Streets (1973)
Robert De Niro plays a wanna-be hood on the streets of Little Italy in Martin Scorsese's breakthrough film.

Lords of Flatbush (1974)
Starring a young Sylvester Stallone and Henry Winkler, the movie tracks the action and ethos of 1950's teen leather-gang in Brooklyn.

Warriors (1979)
An action flick that reached cult status for its inner city kids with big-hair waging massive turf wars.

Year of the Dragon (1985)
A Polish cop's attempt to rid Chinatown of crime and drug cartels turns the neighborhood into a modern Dodge City.

New Jack City (1991)
New York City street thugs turn into a massive drug syndicate and make actors Ice-T, Wesley Snipes, and Chris Rock household names.

Gangs of New York (due out Fall 2001)
Leonardo DiCaprio and Cameron Diaz star in an $80 million blockbuster about the rise of Irish and Italian youth gangs in the Bronx of the nineteenth century.

The difference is that today's gangs are more widespread and more dangerous. It is estimated that 94 percent of medium and large-cities in the U.S. have gang activity. And with easy access to guns and the drugs market, gangs present a more substantial criminal force.

"These kids are not afraid of death or jail," said Robert DeSena who has worked with Brooklyn gangs since 1975. "Once a kid reaches that mindset, you've got a hard-core challenge."

DEFINING IMAGE

Popular images of gang members range from Tony, who fell in love with a rival gang member's sister in West Side Story, to the violent gang-bangers who run the Los Angeles streets in the movie Boyz 'N the Hood. There are a wide range of perceptions, and misperceptions, of what youth gangs do and who is a part of them.

The New York Police Department defines a gang as a group that engages in criminal behavior and has a formal organizational structure, identifiable leadership, and territory. The U.S. Department of Justice estimates that there are approximately 750,000 gang members in 28,000 gangs in the U.S., although no one really knows how many there are because accurate counts are nearly impossible to make. It is estimated that females make up approximately 20 percent of the national gang population. And while the average age of gang members is 17, nearly half of all gang members range in age from 18 to 25 year.

The New York Police Department recently reported that the known gang members in the city increased from 11,000 to 15,000 in the past year. However, many researchers doubt the validity of such numbers.

"I've stayed away from New York statistics for years," said Malcolm Klein from the Center for Research for Crime and Social Control, who has been studying gangs for over two decades. Prior to 1976, New York City's Youth Services Administration kept more dependable gang statistics in the city, but in the fiscal problems of the city, the administration was disbanded and tracking was handed over to police.

While the ethnic make-up of gangs, the streets they call "turf," and the names they give themselves have changed over time, the common factor is social class. Most gang members come from lower or working-class backgrounds, looking for a way to gain power in the social order.

HISTORY OF GOTHAM STREETS

Youth gangs have always been part of New York City life.

In 1807, members of the African Methodist Episcopal Zion Church in lower Manhattan complained to the city about the gangs of white, working class youths who harassed churchgoers, according to the book, "Gotham" by Edwin G. Burroughs and Mike Wallace. By the 1820's, the authors explain, young men "swaggered about the city after work and on Sundays, staking out territories, picking fights, defending the honor of their street and trade."

Until the mid-1900's, a majority of gangs in America were white, composed of boys from various European backgrounds.

The postwar gangs in the 1940's-1960's were primarily "turf" gangs who defended their areas against neighboring ethnic groups and new immigrants. In his recent book, "Vampires, Dragons, and Egyptian Kings," Eric Schneider presents Postwar gang life as a world of switchblades, zoot suits, slums, and bebop music. Young men took on brash names like Enchanters, Young Lords, Bishops, Greene Avenue Stompers, and the Latin Gents.

While youth gangs were often seen as "violent, short-lived, disorganized collections of misfits whose main purpose was thrill seeking and immediate gratification," says Schneider, they provided a social structure for working-class boys that provided a sense of identity, place, and masculinity.

By 1970, about four-fifths of gang members were either African-American or Hispanic. And the late 1980's and early 1990's saw the growth of West Coast gangs like the Crips and the Bloods, although most experts dispute the notion that the gangs actually migrated across the country. Instead they are local, non-centralized gangs that go by the same names and wear the same identifying colors.

Today in New York, the most prominent New York City gangs are Bloods, Crips, Latin Kings, Nietas, Five Prisoners, Silenciosos, Matatones, Rat Hunters, and Zulu Nation. They are groups that span ethnicity, race, and neighborhoods.

FROM TURF TO DRUGS, FROM FISTS TO GUNS

Two major changes in recent years have transformed the nature of youth gangs.

First, the influx of illegal drugs--first heroin, then cocaine, and then crack cocaine--changed street gangs from social groups to economic enterprises. Instead of fighting over the geography of turf, gangs began to wage war over corners used to sell drugs. The institution of the Rockefeller drug laws in 1973 and stiffer prison penalties for adults, had a bitterly ironic result: Drug dealers began to recruit minors to do much of their selling on the streets.

While gangs have become a significant part of the drug trade (a recent study that gangs are involved in about a quarter of the drug arrests), most researchers argue that youth gangs are not major drug traffickers.

"Drug gangs separate themselves from street gangs," said Klein. "Drugs requires tight corporate-like structure that youth do not have."

The second and perhaps the most devastating change is the availability of guns. It is estimated that gang related homicides increased nearly five times between 1987 and 1994.

"Violence has always been around, usually concentrated amongst the poor," said Geoffrey Canada, who runs the non-profit Rheedlin Center for Children and Families in Harlem. "The difference is that we never had so many guns in our inner cities. The nature of the violent act has changed from the fist, stick, and knife to the gun."

THE RIKER'S ISLAND GANG MUSEUM

To visit the offices of the Gang Unit at Riker's Island is to visit a virtual museum of gang paraphernalia.

The walls are covered with photographs of gang member tattoos, red and blue bandanas from the Crips and the Bloods, and rosaries with black and yellow beads used by members of the Latin Kings. There is a display of home-made weaponry: knives made from pocket combs, razor blades fashioned from bottle caps, and even a small gun made from a toilet paper roll and rubber bands. And on the desk are computers used to enter the information into the city's gang database.

It is all part of the Corrections Department's "zero tolerance" policy on gangs and the city's attempt to enhance its gang intelligence.

At Riker's Island, gang members are stripped of any kind of identifying clothing or trinkets, forced to live in the same rooms with rival gangs, and any act of violence automatically adds time to their sentence. The Correction's Department says it is working. The incidence of violence in the city's jail is at the lowest in over a decade.

The School Safety and Prevention Service's division of the New York City operates under a similar notion. If any student exhibits gang behavior-wearing colors, using hand signals, graffiti, or any criminal activity-they are immediately removed from school.

Efforts to pass legislation to control gangs are generally more difficult. Most of the state legislation has to do with graffiti and tougher sentences for assault.

Last year in the city, Councilmembers John Sabini and Michel Abel introduced a bill that would give police the power to arrest suspected gang members loitering on street corners. The legislation drew criticism from civil rights groups and others who thought the law would lead to police abuse. Currently the proposed legislation is still sitting in committee.

FINDING SOLUTIONS

While legislators and police often take the credit for drops in gang related crime, the ebb and flow of gangs are more susceptible to other less tangible factors.

There are several theories of why New York City has less of a problem with gangs than cities like Los Angeles and Chicago.

One is that today's gangs operate in an automobile culture that facilitates drive-by-shootings and drug dealing, and enables gangs to travel in greater anonymity. New York's mass transit system makes it more difficult for such activities. Another theory is that New York City has more opportunities for young people that fill the similar needs as a gang.

"In New York you can be part of a religious group, an arts club, a cultural group, you can even be part of a doo-wop group," said Councilmember Ken Fisher, who is Chair of the Youth Services Committee. "There are more opportunities for someone to belong to something."

There are also a host of non-profits that work with gang members on a one-to-one basis. The main challenge for these groups is to offer something that replaces the protection, identity, and money young people gain from being part of a gang.

Robert DeSena, a retired schoolteacher and founder of Council for Unity a group that works to bring rival gangs together says many of the gang members he meets are looking for a way out.

"Violence is exhausting and gangs realize they are unable to exterminate the opposition," said DeSena. DeSena works to build a network of protection and support that replaces gang life. The youth are responsible for running their own cultural events, support meetings, marketing the programs, soliciting members-using skills they had previously used on the street. The members are paired with alumni of the program who work as mentors, often hiring the youth to work at their companies.

"You get an ex-gang member who works for Price Waterhouse to take an interest in a kid," said DeSena, "and the kids will take notice."

OTHER LINKS:

 

Comissioner Bernard Kerik and the three priorities


It has been a good six months for Police Commissioner Bernard Kerik. The police department released data showing that major crimes (murder, rape, robbery, felony assault, burglary, grand larceny, and auto theft) for the week ending Feb. 25 were at a nine-year low in New York City -- 2,731 this year versus 7,438 in 1993. This represents the fewest major crimes for a one-week period since the police department began its weekly reports in 1993.

On Feb. 21-- the six-month anniversary of his having taken over the department -- Kerik gave a talk sponsored by the Manhattan Institute at the Harvard Club. He systematically walked the audience through the three priorities that had been set up by Mayor Giuliani: continuing the emphasis on crime reduction, boosting police morale, and improving community relations.

FIRST PRIORITY: KEEP REDUCING CRIME

Crime has gone down 63 percent over Giuliani's eight years. Homicide is down 70 percent. These are dramatic drops. On appointing Kerik, Giuliani's challenge to his new commissioner was: How low can you get it? How much further can you make crime decline?

Kerik noted that last January "all the naysayers said it was over." But he disagreed. "People who understand principles of accountability and Compstat," he said, referring to the police department's much-praised computerized crime-tracking system, "wouldn't give up so quickly." This year to date, crime is down about 9 percent over last year, he added.

SECOND PRIORITY: IMPROVE POLICE MORALE

Kerik says he believes in listening "to the people at the bottom, because information goes through so many filters before it gets to you." The number one issue for uniformed police officers is not money, he argues, nor their contract, but how they are treated by their superiors, which is badly. "Cops don't like the way they're talked to, how they're treated by bosses. And if you embarrass or insult a cop in front of peers or prisoners, what is the cop going to do? Take it out on a prisoner or the public, that's what. Supervision has to be changed."

As Michael Meyers pointed out in his column in the New York Post, "Accountability is the name of Kerik's plan, and it starts with the supervisors -- sergeants and up. That's why there have been transfers, retirements, and shake-ups." The important transfers have been duly noted by the press. Late on Friday, Feb. 23, a slow news day, the police department announced that Kerik was transferring the commander of the Narcotics Division to the second post in the Housing Bureau, and replacing him with Assistant Chief William Taylor. After calling Taylor a "highly respected veteran detective commander," the New York Times commented that Kerik, who himself had served for fours years as a narcotics detective, has focused attention and energy on anti-drug efforts. In his first month, said the Times, Kerik undertook a detailed review of narcotics arrests while questioning whether undercover narcotics officers could not be used more effectively than in making low-level arrests.

Yet almost as serious as supervision to the cop on the beat, argued Kerik in his speech, is the deplorably poor physical condition of so many police facilities, particularly precinct houses and their locker rooms and showers, which Kerik said were often "disgusting." As a first step, he returned to a strategy that he had used successfully while at the department of corrections: he went after federal surplus property. He sent 20 tractor trailers to the federal warehouse in Virginia to bring back chairs, desks, sofas, lamps, rugs, and electronic equipment. The point was to improve facilities, and in doing that, to show cops that someone cares.

Patrol cops were also chagrinned about the scarcity of vehicles. When Kerik asked his department how many spare cars were available, he was told none. After a ruthless search of the inventory list he found 380 cars that had been set aside for priorities like special events. "Turns out we have an inordinate number of special events," said Kerik wryly. He took 200 of these found cars and sent them to the precincts. He started getting little notes from cops: thank you for the cars. The found cars had the nice side benefit of raising response time, which had stalled because some precincts lacked the necessary cars.

Kerik's emphasis on the beat cop is seen as an important step forward by Cooper Union Professor Fred Siegel. "This is a guy who came up through the ranks," says Siegel. "He can relate to ordinary cops because he was one. This is really who he is. Put that together with his personality--he likes catching bad guys--and you've got the right guy for the job."

The problem is that no commissioner, no matter how determined and how competent, really rules the police department. As Thomas Reppetto, head of the Citizens Crime Commission and author of a book on the history of the police department, points out, the department's organizational culture is more determinative of police behavior than either the commissioner or the mayor. "The organization is forever," he says, "and mayors and commissioners come and go. That doesn't mean that a commissioner can't do things to change and improve the department. Commissioner William Bratton, for example, showed that the department could be much more effective fighting crime. But it does mean that powerful institutional forces must be overcome."

The police department is a semi-military organization, says Reppetto. It is set up on an industrial model, with tight control over the worker and little discretion at lower levels. While many American corporations over the last decade have "flattened out the pyramid and given greater discretion to individual employees," notes Reppetto, the police department has barely tempered its hierarchy.

THIRD PRIORITY: STRENGTHEN POLICE-COMMUNITY RELATIONS

Kerik's take is that "cops have gotten a bad rap over a couple of controversial incidents," and that community relations should be addressed just as systematically as crime reduction. "We need to create measurements on how we interact," he said, "and create a mandate for precinct commanders to interact with the public." Noting that he has a very low tolerance for failure, he said his warning to all commanders is that if you're not good at your job you'll be removed.

Saying he needs to know what the cops are really doing in the communities, he highlighted a survey he commissioned from the Vera Institute of Justice. Noting that he hired the Institute (where I am a consultant) for its independence and expertise, he said the survey will elicit views from people who "have had an encounter with the police." There would be relatively little point in surveying those actually arrested, said Kerik, since we pretty much know how they would feel. But, he asked, what about those who are stopped but not arrested? particularly those who are stopped and frisked? We know that's a negative interaction, so we want to ask them what they think."

The Vera survey will also include victims of crime, and people aided by the police, in addition to those who "encounter" police officers in more aggressive circumstances. The results of the survey may help some police officers make what Kerik calls an "attitude adjustment."

Surely this is a first--a police department commissioning a survey of citizens who have had negative encounters with the police. Kerik sees it as a natural next step. "We're a service organization," he says. "We have to think about consumer satisfaction, and we have to capture real information."

Fred Siegel calls the logic of the survey "a brilliant step forward. The police department is saying: just because someone is released after being stopped doesn't mean our obligation to them is ended. We're concerned about what happened and what they have to say."

YET ANOTHER MURDER

Kerik left the Harvard Club to go immediately to A press conference announcing the arrest of the 15-year old boy who is being charged as an adult in the killing of Ismael Marzan in Central Park.

The following day, Mayor Giuliani appointed Kerik to a new five-year term, though there is little but symbolic meaning in the move: police commissioners serve at the pleasure of the mayor, and of the five known candidates for mayor, only City Council Speaker Peter Vallone has said that Kerik is on his short list.

Commissioner Kerik has eight months to show New Yorkers what he can do.

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.

Rockefeller Drug Law Reform


Elaine Bartlett was a 26-year-old mother of four living in East Harlem when she was sentenced to 20-to-life for selling four ounces of cocaine to an informant. It was her first offense; the same transaction sent the father of her two daughters to prison for 25-to-life. The couple had no previous involvement with the drug trade and had no idea that their crime could result in such severe punishment.

Jan Warren was single, pregnant and desperate for money when her cousin asked her to carry nearly eight ounces of cocaine from Newark, New Jersey to Rochester. She had no prior arrests. The judge said the fact that New York state law mandated a fifteen-to-life sentence for the offense was "a travesty" of justice and that he didn't want to pronounce the required sentence.

Unlike Bartlett and Warren, Arthur Beaty was addicted to drugs when he ran afoul of New York's tough drug laws. A married father of two with no prior arrests, he was sentenced to fifteen-to-life for selling 4.5 ounces of cocaine to an undercover police officer.

Though Bartlett has been freed by a rare clemency decision by Governor Pataki, the others remain in prison. Now, however, for the first time in decades, they have hope. This year may offer the best chance to change New York State's draconian drug laws -- but advocates fear that proposals for change that don't go far enough could derail real reform.

LEGACY OF A LOST ELECTION

The drug statutes, known as the Rockefeller laws, were passed in 1973. Then-New York State Governor Nelson Rockefeller was preparing to run for higher office and wanted to burnish his tough-on-crime credentials. He had previously tried addressing New York's heroin problem by expanding treatment, but drug use only continued to increase. And so he proposed life sentences without parole, no plea bargaining and no exceptions for anyone caught dealing drugs.

His aides pleaded that this was unworkable, that it would flood prisons, clog courts and probably wouldn't even solve the problem. He compromised. Instead of life without parole, there would be a 15-to-life mandatory minimum for possession of more than four or sale of more than two ounces of cocaine or heroin. Lesser weights would result in lighter sentences. But second offenses on these crimes would result in sentences of 8 1/3 to 25 years.

TOUGH LAWS FAILED TO PREVENT CRACK EPIDEMIC

The Rockefeller drug laws-- now 28 years old-- are amongst the toughest in the country. They failed to prevent New York City from becoming the epicenter of the American crack epidemic in the early 90's when drug use, drug trafficking and violent crime rates reached record levels. Twenty-one thousand prisoners are currently incarcerated under Rockefeller law provisions, more than half of them non-violent. A mind-boggling 94 percent are black or Latino according to statistics compiled by the New York City Legal Aid Society, despite the fact that most of New York states drug dealers and users are white.

In fact, the statutes initially included lengthy sentences for possession and sales of marijuana, but these were repealed in 1979 after an outcry from white middle class parents who found that their sons and daughters were facing long stretches of incarceration.

GOVERNOR PUSHES REFORM BUT ADVOCATES WORRY

For the first time, this year Governor Pataki is proposing significant reforms. He has advocated reducing the mandatory 15-to-life sentence for what are called A1 felonies to 10-to-life, which could be lowered to 8 and 1/3 to life on appeal. He would allow diversion of second felony offenders for lesser drug crimes to treatment with permission from the prosecutor. And, the changes would be retroactive, so people who have already served long sentences could be eligible for early release.

But will these changes actually make it through the legislature-- and do they go far enough?

State Assemblyman Jeffrion Aubrey, who chairs the Assembly's Corrections Committee, has sought to change these laws for years. He sees the governor's plan as a good starting point for negotiations, but adds, "There's still far too little judicial discretion, it doesn't reduce sentences far enough and it hasn't provided a sufficient budget for drug treatment."

'ONE SHOT AT THE APPLE'

Aubrey does believe, however, that the laws will be changed this year and that this is the best opportunity reformers have ever had to make a significant difference. "Logic would seem to indicate that this is a one-shot deal." he says, "No one has a crystal ball to say that, but it is such a politically volatile issue and usually in those cases, you have just one shot at the apple."

He adds, "Given the momentum of public opinion, we need to maximize this opportunity to ensure that the changes are adequate."

While Democrats have long advocated reform, Assembly Speaker Sheldon Silver has frequently tabled it, as a way to try to ensure re-election for upstate Democrats whom he believed couldn't afford to be seen as soft on crime. Governor Pataki had advocated a reform plan in 1999, but it was limited to sentence reduction only on appeal and linked to the elimination of parole for all felons, which was something Democrats refused to support.

Current supporters of ending the Rockefeller drug laws include everyone from the Catholic church (Cardinal O'Connor spoke out against the laws just before he died) to hard-line former drug czar Barry McCaffrey, the Legal Aid Society, the ACLU, the NAACP, Al Sharpton, Human Rights Watch, the Correctional Association and drug policy reform organizations like the Lindesmith Center and the William Moses Kunstler Fund for Racial Justice. New York State's highest court, the Court of Appeals, as well as many other judges have expressed grave reservations about the fairness of the laws. Public opinion polls also show support for reform. According to a Quinnipiac College poll, 69 percent support judicial discretion rather than mandatory sentences for drug offenders.

LIKE NIXON TO CHINA?

But the Rockefeller laws have become one of many "Nixon goes to China" issues in politics where only Republicans have the tough-on-crime credentials to make changes typically favored by liberals. Republican Senate Majority Leader Joseph Bruno has expressed support for repealing Rockefeller as has John Dunne, a former Republican State Senator who helped write the laws and who also served as Assistant Attorney General for Human Rights under President George Bush.

As a result, Robert Gangi, Executive Director of the Correctional Association of New York and a long-time advocate for change, believes that the chances for significant reform are high. He cautions that there is a danger that only "cosmetic" reforms will be passed, and that this could set back real change indefinitely. "That's why we're holding a major rally on March 27th in Albany called "Drop the Rock.'" he said.

DISTRICT ATTORNEYS FIGHT CHANGE...

The only support for keeping the laws comes from the powerful District Attorney's Association. "We don't support reduction in sentencing," says Robert Carney, President of the association. "If you take the minimum away, it removes the leverage that prosecutors have to obtain pleas and information about drug trafficking networks. We've solved murder cases using these laws."

Aubrey, for his part, doesn't buy it. "Their opposition to judges having discretion is troubling to the very concept of how justice is supposed to be applied." he says. "We keep moving away from judges as judges"

EVEN TOUGHEST JUDGES WANT DISCRETION

Supreme Court Justice Leslie Crocker Snyder has presided over a special court to prosecute major narcotics cases, and as a former prosecutor and possible candidate to succeed Manhattan DA Robert Morgenthau, she tends to take tough positions on crime. She is known on the street as "the Dragon Lady" because of the lengthy sentences she imposes. But even she supports overturning Rockefeller. "I'm more suspicious of total discretion for judges than most and I still believe strongly in law enforcement," she says, "but more emphasis is needed on treatment."

Though complete elimination of mandatory sentences -- which is what most advocates would like to see -- is unlikely, most Albany observers believe that the governor's proposal leaves room for negotiation and could lead to significant improvements. Assembly Speaker Sheldon Silver will make the next move -- choosing which changes to fight for, and which to concede. Advocates hope that this time, the horror stories of first-time, non-violent offenders spending lifetimes away from their families -- not to mention the huge financial costs and lack of impact on addiction -- will be heard and remedied.

 



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