NYC Dismissal of 644,000 Warrants Lauded by NY Times

Newspaper says the mass expungement is an indictment of the city’s summons system. The Times urges the city’s prosecutors to wipe out the records of others “who may have been unjustifiably caught in the zero-tolerance dragnet.”

The New York Times praises New York City prosecutors in an editorial for their action this week dismissing 644,000 outstanding arrest warrants stemming from minor offenses at least 10 years old, more than a third of the city’s 1.6 million outstanding summons warrants. The newspaper noted that the city already had scaled back its practice of stopping and frisking people in high-crime neighborhoods. It has reduced the number of people prosecuted on minor marijuana charges. The warrant backlog stems from that the Times calls “the now-discredited belief that petty offenses, like riding a bike on the sidewalk or drinking in public, could lead to more serious crimes.” Minority neighborhoods were blanketed with criminal summonses that forced hundreds of thousands of people to live with a constant threat of jail time for minor infractions.

Now, the city has encouraged officers to shift many common petty offenses into civil court, where people can avoid criminal records and can sometimes make amends through community service. In 2009, at the height of zero-tolerance policing, the city handed out more than 500,000 summonses, compared with about 268,000 last year. People who forget court dates for offenses like littering are subject to arrest warrants that can land them in jail for days the next time they encounter a police officer in, say, a routine traffic stop. Warrants can also make it difficult to find jobs or get apartments. Immigrants can be denied citizenship applications or be deported. The new “mass expungement” is an indictment of the summons system itself, the Times says. It urges the city’s prosecutors to to expunge the records of others “who may have been unjustifiably caught in the zero-tolerance dragnet.”


The ‘Age of the Plea Bargain’ in U.S. Criminal Justice

With 94 percent of state felony cases ending in guilty pleas, there are few trials in the U.S., and guilty pleas keep the machinery of justice running smoothly.

This is the age of the plea bargain in U.S. courts. Most people adjudicated in the criminal justice system waive the right to a trial and the host of protections that go along with one, including the right to appeal. Instead, they plead guilty. The vast majority of felony convictions are now the result of plea bargains—94 percent at the state level, and 97 percent at the federal level. Estimates for misdemeanor convictions run even higher. These are astonishing statistics, The Atlantic reports, and they reveal a stark truth about the American criminal-justice system: Very few cases go to trial. Supreme Court Justice Anthony Kennedy, quoting a a law-review article, wrote, “ ‘Horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.’ ”

Legislators have criminalized so many behaviors that police are arresting millions of people annually—almost 11 million in 2015. Taking to trial even a significant proportion of those who are charged would grind proceedings to a halt. Stephanos Bibas, a professor of law and criminology at the University of Pennsylvania, says the criminal-justice system has become a “capacious, onerous machinery that sweeps everyone in,” and plea bargains, with their swift finality, are what keep that machinery running smoothly. Plea bargains make it easy for prosecutors to convict defendants who may not be guilty, who don’t present a danger to society, or whose “crime” may primarily be a matter of suffering from poverty, mental illness, or addiction.


New NY Push to Increase Prosecutors’ Disclosure

New York is one of 10 states where prosecutors can wait until just before trial to share evidence with defendants and their attorneys. Suspects may be pushed to enter plea deals without knowing the extent of the evidence against them. The state bar association, the Legal Aid Society and the Innocence Project are seeking a law requiring earlier disclosure.

New York is one of 10 states where prosecutors can wait until just before trial to share evidence with defendants and their attorneys. The result is that suspects often are pushed to enter plea deals without knowing the extent of the evidence against them, reports the New York Times and The Marshall Project. In some cases, the name of an accuser is withheld until the eve of trial.

For decades, legislation to require prosecutors to turn over evidence earlier has run into stiff opposition from district attorneys, who cite the need to protect witnesses. More than a dozen such bills have failed in the past quarter-century. The politics show signs of shifting. A new effort is underway to overhaul state discovery rules, following the example of traditionally more conservative states such as North Carolina and Texas. The New York State Bar Association for the first time is backing a bill requiring prosecutors automatically to turn over police reports, witness names and statements, and grand jury testimony early in a case. The measure is backed by the Legal Aid Society and the Innocence Project, a nonprofit that helps exonerate people who have been wrongly convicted. It faces a difficult road. There is no companion bill in the Senate, and Gov. Andrew Cuomo has not embraced the idea.


California Officials Say Prison Realignment Puts State on ‘Right Track’

The state prison population has declined under the six-year-old plan to keep many convicts in local jails, the National Forum on Criminal Justice was told today . But violent crime has also gone up recently.

A panel of California officials from across the criminal justice system agreed that the state’s nearly six-year-old “realignment” of inmates has led to a long list of improvements for crime victims and lawbreakers alike.

The officials spoke yesterday at the opening session of the National Forum on Criminal Justice, which is being held this week in Long Beach, Ca. The event is attended mostly by state criminal justice leaders from around the U.S. and is sponsored by the National Criminal Justice Association, the Justice Research and Statistics Association and the IJIS Institute.

It was less clear that the changes, which were led by Gov. Jerry Brown in response to a Supreme Court ruling to cut the state’s prison population, have led to a reduction in crime.

Last summer, the state said that after two years of decline, the number of violent crimes increased by 10 percent the previous year. The FBI’s preliminary crime data for the first half of last year said that reported violent crime increased in two-thirds of California’s largest cities.

Under “realignment,” many prisoners formerly in state custody were shifted to the state’s 58 counties, along with funds to aid in ex-inmate rehabilitation. Also, what are known as the “three nons”–non-violent, non-serious, and non-sexual offenders–are kept in local jails or on probation or in treatment programs instead of going to state prison in the first place.

The state’s prison population totaled about 160,000 when realignment began. It was down to 131,000 last week, but that was up slightly from a year earlier.

Scott Kernan, director of the state’s Corrections and Rehabilitation Department, declared that “we are on the right track,” based both on the record of realignment and of Proposition 57, which was approved by voters last November by a 64 percent to 35 percent margin.

The measure gives prisoners the opportunity to earn credits that can speed their release. That provides “a motivation to do something” useful while they are incarcerated, Kernan aid.

Proposition 57 also allows for earlier release of prisoners serving life terms who have good records behind bars. Kernan said that more than 3,000 lifers have been released in recent years, and their recidivism rate is only one percent.

The significance of California’s realignment was that it has begun to turn around a trend in which “we were spending a great deal of money on incarceration and we weren’t getting good outcomes,” said Linda Penner, chair of the California Board of Community Corrections.

The shifting of funds formerly being spent to keep criminals locked up to an expansion of local services across the justice system is part of several “dramatic changes” in the justice system instituted by Gov. Brown, Penner said.

The improvements have been seen in most corners of the criminal justice system, other panelists reported.

Robin Lipetzky has been chief public defender of Contra Costa County since 2009. When she began in the criminal defense field in the 1990s, she and fellow lawyers believed their jobs consisted only of fighting for their clients and not “fixing their lives.”

In what she calls a “huge change,” the availability of more funds for local inmate rehabilitation has defenders looking for ways to keep their clients from committing more crimes, she said.

Prosecutors have joined in the process, too, said Nancy O’Malley, district attorney in the relatively high-crime area of Alameda County near San Francisco.

Many prosecutors once focused only on sending offenders to prison. Now, it is common to seek ways of “catching people early before they can get too far into the justice system,: she said. This goal is explained more clearly to crime victims, who generally support it, O’Malley said.

One important goal of modern-day prosecutors should be to “explain to people what we’re doing,” O’Malley said.

A somewhat less enthusiastic view of realignment was offered by the law enforcement spokesman on the panel, Sheriff John McMahon of San Bernardino County, a large area that stretches from east of Los Angeles to the Nevada border.

Realignment’s prisoner shift meant that his county’s 5,000-prisoner total rose to 6,000, McMahon said. It became harder to manage the inmate population, which he said had more options for activities while they were in state prisons.

At the same time, the change has made sheriff’s deputies more conscious of their role in rehabilitation, compared with their attitude years past in sending criminals to state prisons and forgetting about them.

Now, his department takes a bigger role in expanded programs for prisoner reentry into society, and the recidivism rate of local ex-inmates is 40 percent and dropping, he said. (Typically, recidivism rates in many areas nationally have been 67 percent or higher.)

All of the speakers agreed that a positive change under realignment was having representatives of all justice system components — law enforcement, prosecutors, public defenders and corrections programs — meet periodically to discuss criminal justice improvements. Other agencies need to be involved, too, especially schools, said prosecutor O’Malley.

The California approach to justice got an endorsement from a non-panel member who spoke, Dionne Wilson of the California-based Alliance for Safety and Justice. Her husband, a police officer in San Leandro, Ca., was shot and killed in 2005 while responding to a disturbance call.

The assailant, who had been on probation for another offense, was convicted. Still, Wilson came to believe that the murderer was “on death row, but I had nothing to show for it.” She has since joined the forces for criminal justice reform, praising the approach of the state’s realignment of “putting the services [for ex-inmates] where they need to be.” She added that, “We aren’t going to incarcerate our way out” of the crime problem.

Ted Gest is president of Criminal Justice Journalists and Washington bureau chief The Crime Report.


Want to Fix a Ticket? In Louisiana, the DA Offers a Deal

To avoid court, motorists can write a check directly to the local prosecutor under an unusual system known as “DA Pre-Trial Diversion.” The use of diversion seems to be growing, raising eyebrows among public defenders who rely on traffic fines for funding.

The Lens examines an unusual Louisiana process that allows traffic violators to avoid court by writing a check directly to local district attorneys under a mechanism known as DA Pre-Trial Diversion. These fines do not go through the court system, which divides revenue among several agencies. Instead, the money goes straight to the district attorney. Offenders pay no court courts, and there is no trace of the incident on driving records. Historically, pretrial diversion programs have been used to “divert” criminal defendants to drug rehab and counseling programs. But diverting traffic tickets is a newer phenomenon. Offenders are spared from higher insurance premiums that could result from speeding tickets.

Some jurisdictions, like West Baton Rouge Parish, simply require drivers to pay the DA’s office. Others, like St. Bernard Parish, also require them to complete an online class or read a pamphlet on safe driving. The state doesn’t track local traffic diversion programs, which makes it hard to measure their growth. But a sample of seven district attorneys, covering 11 parishes, suggested they are diverting as many as half of their traffic tickets. Statewide, there has been a 30 percent drop in tickets processed by courts over the past five years. This is having a direct impact on the state’s public defender system, which is funded through traffic fines.


NYC Prosecutors Pledge to Dismiss 700,000 Minor Warrants

District attorneys in four boroughs have agreed to file motions to toss out old warrants issued for low-level offenses like drinking in public and riding a bicycle on a sidewalk. All are more than 10 years old. The mass clearance will dismiss a significant portion of the city’s roughly 1.5 million outstanding warrants.

Four of New York City’s district attorneys say they will file motions in coming weeks to toss out 700,000 old warrants issued for low-level offenses like drinking in public and riding a bicycle on a sidewalk, reports the New York Law Journal. Prosecutors in Queens, the Bronx, Brooklyn and Manhattan will move to dismiss warrants that are 10 years old or older that stem from NYPD summonses. The mass clearance will dismiss a significant portion of the city’s roughly 1.5 million outstanding warrants.

When warrants aren’t cleared, those who have them are subject to automatic arrest for years and decades to come, even if they come in contact with police because they were involved in a minor traffic accident or while reporting a crime. Bronx DA Darcel Clark said the motions for clearance should not be viewed as mass amnesty. “We’re not telling everyone it’s OK to get a summons and not show up,” Clark said. But she said many of the cases are unprosecutable because of legal sufficiency issues.


The American Prosecutor: The Next Champion of Reform?

Prosecutors can play the critical role in reforming the justice system—if they’re willing to go beyond their traditional roles as tough law enforcers. In a TCR Special Report, two former prosecutors explain in separate commentaries how that can happen.

Prosecutors can play the critical role in reforming the justice system—if they’re willing to go beyond their traditional roles as tough law enforcers. In a TCR special report, two former prosecutors explain how that can happen.

Meg Reiss

Meg Reiss, Executive Director of the Institute for Innovation in Prosecution at John Jay College of Criminal Justice, argues in a Viewpoint column that jurisdictions around the nation, such as New York City and Cincinnatti, have been able to simultaneously reduce both crime and arrests—proving, she writes,  “that criminal justice reform does not come at a cost to public safety. ”

Dylan Hayre

In a companion piece, reprinted with the permission of Cognoscenti, former Boston prosecutor Dylan Hayre, says prosecutors need to recognize the often harmful impact they have had.  He calls for a new dialogue with defense attorneys and other players on the front lines of the system to ensure “truth, procedural fairness and proportionality.”


An Appeal to Prosecutors: We Hold the Power to Reform Justice

A former prosecutor says he is making amends for courtroom actions that “harmed” individuals by working for justice reform. He calls on his former colleagues to join him by changing their focus from getting convictions to achieving fair and humane outcomes.

Last month, hundreds of people came to the Massachusetts State House  in Boston to advocate for criminal justice reform. It is not the first time this happened and it probably will not be the last. For many, this advocacy is personal.

Dylan Hayre

It was personal for me because I was a prosecutor, so I had tools at my disposal that allowed me to irreparably harm people. Now I can make amends.

But when it comes to this reform, we must remember that most of the daily grind of the criminal justice system happens not in legislative hearings, but in district courts. And while the system is theoretically balanced, any honest prosecutor will tell you that district court prosecution is a one-sided affair.

Even if the Massachusetts legislature were to pass criminal justice reforms, prosecutors would still hold most of the power in daily proceedings. Prosecutors can steer police actions. They can influence sentences from the very beginning of a criminal process. They can drag out a defendant’s time in the system by withholding evidence or being coy about its availability.

None of this is intrinsically wrong.

Some of it can run up against ethical boundaries. All of it happens in district courts every single day, which means that no one—no advocate, legislator, nor judge—is in a better position to advance progressive criminal justice reform than a prosecutor.

This power to change the system lies in decisions prosecutors frequently make in fleeting moments, so being aware of those moments and the consequences of those decisions is crucial.

When a cop calls you at midnight to ask about dubiously removing evidence from the home of someone just arrested; when you know a clerk routinely allows disproportionately harsh charges to proceed to arraignment; when exculpatory evidence could be obtained but won’t be without a prosecutor’s intervention — these are the moments when prosecutors’ decisions, taken together, impact our system immeasurably.

It’s easy to encourage overzealous evidence-gathering, use harsh charges to leverage plea deals on lesser charges or avoid difficult conversations with witnesses about preserving evidence. In fact, the pressures of the job can make those decisions almost necessary.

But prosecutors must have the training and the encouragement to prioritize decisions that err on the side of caution and fairness over decisions made solely for the purposes of convictions or sentences.

None of these examples is exceptional. Each is drawn from something I frequently experienced directly—like many other prosecutors—or heard anecdotally.

I remember one defendant who faced a uniquely egregious charge that wasn’t justified by anything in the police report. A colleague and I believed the clerk had let the charge proceed to arraignment because of his professional relationship with the police officer who wrote the report.

It wasn’t the first time this had happened, so we knew we had to act as a counterbalance to that clerk. We agreed we should offer to dismiss the charge. But the defendant’s attorney filed a motion to dismiss it, and, almost immediately, the overwhelmingly and unnecessarily adversarial nature of prosecution kicked in.

We began building an argument against the defense motion. I stopped thinking, “How can I use my power to limit the consequences of a clerk’s bad decision?” and instead thought, “How can I win this argument?”

It is only in hindsight that these pressures become obvious.

So how do we improve and help prosecutors make decisions that advance the highest ideals of our criminal justice system? The easy answer is training.

We should expect prosecutors not just to be trained in the art of the trial — how to write motions, present evidence, raise objections and conduct plea-bargaining — but also in the overarching values of our system.

Protesters calling for justice reform outside Massachussetts State House June 2016. Photo by Jesse Costa/WBUR

We should invite defense attorneys and former defendants to speak to new prosecutors about life on the other side of a case. We should make sure prosecutors learn and are able to analyze the American Bar Association’s Model Rules of Professional Conduct, especially the comment to Rule 3.8: “A prosecutor has the responsibility of a minister of justice.”

We should urge prosecutors to participate in an active dialogue with other court personnel who too often are only called upon by a prosecutor when the prosecutor needs something.

But does a prosecutor’s power really beget this responsibility?

To begin answering that question, I urge you to read R. Michael Cassidy’s, “Prosecutorial Ethics.” Cassidy writes: “A prosecutor may not adopt a ‘win at all costs’ approach to his cases.

At a minimum, the obligation to seek ‘justice’ implies a duty on the part of prosecutors to take steps to insure … truth, procedural fairness, and proportionality.”

Let those words, the words of the American Bar Association and the words of the many families whose lives have been disproportionately impacted by a prosecutor serve as an important reminder to all of us: For progressive criminal justice reform, we should — indeed, we must — look to the prosecutors on the front lines of the criminal justice system.

Just as importantly, we must look to the district attorneys who hire, train and support the actions those prosecutors take every day.

Dylan Hayre is a former prosecutor who currently works as an attorney and political organizer with a focus on criminal justice reform. This essay is a slightly edited version of an article originally published on Cognoscenti,’s ideas and opinion page. The Crime Report is pleased to re-post it with permission. Readers’ comments are welcome.


America’s New Breed of Prosecutors

Prosecutors across the U.S. are taking important steps to remedythe disproportionate impact that the criminal justice system has on marginalized communities.

An estimated 10,000 people will avoid fines, jail time, and severe collateral consequences including loss of employment and housing that accompany arrest and misdemeanor convictions due to a policy shift announced by the Manhattan District Attorney’s Office this month.

Meg Reiss

The move, to no longer prosecute turnstile jumping, is among a number of similar actions taken by prosecutors across the country to ease the fear of arrest and prosecution faced disproportionately by low-income individuals and people of color.

Cook County, Illinois State’s Attorney Kim Foxx’s office will not prosecute driving offenses that arise from financial hardship, such as driving with a license that was suspended as a result of being unable to afford a traffic fine.

Similarly, prosecutors around the nation have chosen not to prosecute marijuana possession, and not just in places where the air carries the scent of patchouli.

District Attorney Mark Gonzales of Nueces County, Texas has announced that marijuana possession of two ounces or less will be penalized by fine or community service rather than criminal prosecution. And in Brooklyn, N.Y., Acting District Attorney Eric Gonzalez has implemented a new policy aimed at minimizing the collateral immigration consequences of misdemeanor and low-level offenses by making strategic charging decisions.

These measures are an important step in remedying the disproportionate impact that the criminal justice system has on marginalized communities.

Members of these communities continue to be over-represented in our prisons and under-protected on our streets. Research shows that low-income people and communities of color are more likely to be stopped, arrested, and prosecuted for substance use and traffic violations.

The decision not to prosecute these low-level offenses helps relieve this asymmetrical criminal justice burden.

The de-prioritization of low-level cases improves the administration of justice. Every hour a prosecutor spends on a misdemeanor drug possession case is an hour not spent working on a more serious case, or tending to the needs of victims of violent crime.

Beyond allowing prosecutors to devote their finite resources to their most critical responsibilities, selective prosecution also enhances the legitimacy of the prosecutor’s office.

By taking concrete steps towards a more equitable and effective criminal justice system, prosecutors gain the trust of the communities they serve and demonstrate their commitment to safety and justice for all.

When people believe in the mission of the prosecutor’s office and are not weighed down by fines, fees, and over-enforcement, they are more willing to engage with law enforcement in the creation of safety.

As democratically elected officials with significant discretion and direct ties to the communities they serve, prosecutors have the means and the mandate to implement policies and practices that best serve the needs of their constituents.

With jurisdictions around the nation, such as New York City and Cincinnatti, able to simultaneously reduce both crime and arrests, it is clear that criminal justice reform does not come at a cost to public safety.

Communities across the country are demanding a criminal justice system that advances safety and justice – and prosecutors are stepping up to heed the call.

Meg Reiss is Executive Director of the Institute for Innovation in Prosecution at John Jay College of Criminal Justice, a partnership between the college and the Manhattan District Attorney’s Office, aimed at reimagining the role of the prosecutor in the community. She welcomes reader’s comments.


New Breed of Prosecutors Make Progressive Changes

Many young prosecutors are avoiding the death penalty, talking rehabilitation as much as punishment, and often refusing to charge people for minor offenses. While their numbers are small, they are taking over DA offices at a crucial moment as many states are moving away from the strict law-and-order approaches of the past.

Mark Gonzalez, the new district attorney in Nueces County, Tx., is making what the Christian Science Monitor calls a raft of progressive changes, such as helping young offenders go to trade school instead of to prison. Gonzalez is part of a new breed of prosecutor around the U.S. “with a reform-minded approach that sounds more Clarence Darrow than Clarence Thomas,” the Monitor says. Gonzalez says, “I think every prosecutor should have in the back of their minds and in their hearts that everyone is not guilty until I prove my case.”

From Texas to Florida to Illinois, many of these young prosecutors are eschewing the death penalty, talking rehabilitation as much as punishment, and often refusing to charge people for minor offenses. While their numbers are small, they are taking over DA offices at a crucial moment. Faced with crowded prisons and the high financial and social costs of incarceration, many states have been moving away from the strict law-and-order approaches of the past. In Washington, D.C., the tone is just the opposite. Attorney General Jeff Sessions, backed by President Trump, wants to revive stiff sentences for drug offenders and tougher laws.  “It does seem to be a new and significant phenomenon,” says Stanford law Prof. David Alan Sklansky of new prosecutors. “It’s rare to see so many races where the district attorney is challenged, where they lose, and where they lost to candidates calling not for harsher approaches, but for more balanced and thoughtful, more restrained, more progressive approaches to punishment.”