Testimony Regarding Criminal Justice Reform

March 11, 2015

Good morning. My name is Robert Perry. I am the legislative director of the New York Civil Liberties Union. The NYCLU is a membership organization dedicated to protecting the civil rights and civil liberties of New Yorkers. The organization has eight offices across the state and 50,000 members and supporters.

The death of Eric Garner, last year, at the hands of a New York City police officer led to protest and debate about the use of aggressive police practices in circumstances that involve little, if any, risk to public safety. The subsequent shooting that took the lives of two NYPD officers gave new urgency to the need for measures that will reduce tension and conflict between police and civilians.

Governor Cuomo was right to call for a comprehensive review of the state’s criminal justice system.

But it seems, at this juncture, there may be no comprehensive review of criminal justice policy – at least not of a bipartisan nature.

The Assembly convenes this hearing to address the criminal justice system – specifically, issues of fairness, community-police relations, and the safety of police officers.

At the same time, a Senate hearing is underway – one of a series of such hearings – that is focused on the safety of police officials.

It is difficult not to see in these parallel hearings the contentious politics of policing.

But I would reject the suggestion, or inference, that those who voice concern or criticism about police practices are heedless of the risks police face, or of the need to provide for their safety.

No one calling for policing reforms would object to measures – including equipment and training – that would protect the safety of police officers.

To the advocates of fair and respectful police practices, safe streets means safety for everyone who uses those streets.

Those calling for policing reform believe it is possible to protect public safety through effective, disciplined policing that is also respectful of people’s dignity and their constitutional rights.

What precisely is meant by this term “policing reform”? To the NYCLU, this means the de-escalation of overly aggressive policing and prosecution of low-level non-violent offenses. De-escalation, in this sense, requires retraining of policing officers, as well as the decriminalization of conduct that poses no serious risk to public safety or to public order.

The problem is well documented. And if addressing this problem remains a partisan matter in New York, that’s not the case nationally. There is an emerging national consensus, among Republicans and Democrats, among conservative and liberals, that overzealous prosecution and mass incarceration have done grave harm to our society.¹ We are all harmed – but there is a gross racial disparity among those who suffer the harm most directly.

In New York we are approaching the half-way mark in the legislative session. The comprehensive inquiry the governor has called for has hardly begun. The opportunity for action on criminal justice reform is slipping away.

Nevertheless, a number of important measures have been proposed – legislation that has broad-based support among policing experts and reform advocates.

I will briefly address three such proposals.

■ COLLECT AND REPORT DATA ON ARRESTS AND CHARGES FOR LOW-LEVEL OFFENSES
Modern policing practices are informed by the collection and analysis of data: crime complaints, police stops, arrests, shootings. The NYPD’s Compstat program is often cited as the engine of a data-driven policing model, one that allocates police resources based upon the nature and location of potential risks to public safety.

But there is a significant void in the policing data – from New York City and statewide. Legislators, policy makers and police officials lack key data regarding violations and low-level misdemeanors that lead to arrest, a summons, a desk-appearance ticket, or to prosecution.

The policing and prosecution of these “quality of life” offenses – consumption of alcohol in public, trespass in a park after hours, riding a bike on sidewalk – involve hundreds of thousands of police encounters every year in communities across the state. Absent data on these offenses, police officials and law makers cannot make well-informed judgments about the costs and effectiveness of policing practices — about how often such offenses lead to arrests, fines, jail time. And without such data, it is not possible to assess the harsh collateral consequences of these contacts with the criminal justice system – including loss of employment, education, housing, and even parental rights.

Assembly Member Joseph Lentol has introduced a bill that would require the collection of demographic data regarding persons arrested or charged for such offense: the nature of the offense charged, the race, ethnicity and gender of the person charged; whether a summons or desk appearance ticket was issued; whether an arrest occurred; the location of the incident; and the disposition of charges. The legislation would require that localities report these data to the Office of Court Administration, which in turn must make the data available to the public.

In 2011, two criminal justice experts (one, a retired NYPD captain) published an article that stated it’s time to build a better Compstat – in the interest of good policing practices, and as a matter of credibility and accountability.² “Open the books,” is their recommendation to the police: “The public needs to be informed in order to assess the effectiveness and fairness of its police force – so all crime data should be made public on a regular basis.”³

The NYCLU endorses the Lentol bill; it is consistent with the goals of openness and accountability.

■ RAISE THE AGE OF CRIMINAL RESPONSIBILITY
New York is one of two states that prosecute in adult criminal court all sixteen- and seventeen-year-olds charged with a crime. In New York State nearly 50,000 youths who are sixteen or seventeen face prosecution as adults every year.

This is bad law, and bad public policy—for children, in particular, and for all of us.

It is now beyond scientific dispute that the adolescent brain is at a developmental stage that makes young people more likely than adults to engage in impulsive, high-risk behavior. This observation is not meant to condone, or excuse, the risks of harm posed by such behavior; but rather to point out that interventions will be more effective if they are designed to address the developmental needs of the adolescent.

In the words of one medical expert who specializes in adolescents and the law: “If kids are making these poor decisions because their development is not complete, then to penalize them with long-term legal consequences is unfair.”⁴

Raising the age of criminal responsibility also protects public safety. After being tried and sentenced as an adult, young people are more likely to re-offend sooner, and in more serious ways, than youth who have remained in the youth justice system. Governor Cuomo’s Commission on Youth, Public Safety and Justice has published a comprehensive and thoughtful set of recommendations for raising the age of age of criminal responsibility, and for providing a range of interventions for responding effectively when young people engage in unlawful conduct.

The NYCLU supports the Commission’s overarching proposal. However, we are proposing a number of recommendations that are intended to ensure that legislation implementing the Commission’s report is consistent with, and furthers the intent of, this initiative. The NYCLU’s recommendations are attached to this testimony.

■ PREVENT WRONGFUL CONVICTIONS
Accounts of coerced confessions and witness tampering in criminal investigations have become a recurring news story. In Brooklyn, New York, six individuals have been exonerated in the last year after having been incarcerated for many years, even decades, for crimes they did not commit.⁵

Wrongful convictions are often the consequence of coercive investigation tactics and mistaken identification by witnesses. And the problem is not unique to Brooklyn. There is a broad consensus among criminal justice experts that two police reforms can prevent wrongful convictions:

Videotape police interrogations False confession is a factor in almost 25 percent of cases known to result in a wrongful conviction.⁶ In many instances these unwarranted convictions are the consequence of improper police tactics. Videotaping of custodial interrogations would serve to protect the innocent and ensure the veracity of a criminal confession.

The National District Attorneys Association encourages police departments to videotape interrogations. Alaska, Minnesota, Texas, Maine and the District of Columbia have, by statute or case law, mandated the electronic recording of certain custodial interrogations. The recording of custodial interrogations will serve to deter improper police practices, and to prevent wrongful convictions based upon coerced confessions. New York law should mandate this practice.

Prevent bias and error in witness identification procedures According to the Innocence Project, mistaken eye-witness identification has contributed to wrongful convictions in 75 percent of more than 300 convictions subsequently overturned based upon DNA evidence.⁷ Notwithstanding a growing body of research that demonstrates serious flaws in traditional eye-witness procedures used by police, eye-witness identification is one of the most commonly used, and most compelling, forms of evidence used in criminal prosecutions.

The NYCLU – along with bar associations, criminal justice scholars, and jurists – supports adoption of a proposal that would eliminate bias and manipulation by requiring “double-blind” line-ups, a procedure that ensures neither police officials nor eyewitnesses know the identity of the alleged suspect in a line up, as well protocols that ensure neutrality when police officials compose a line-up, and give instructions to witnesses.

■ CONCLUSION
I will close by referring back to something I said at the beginning of my comments – the suggestion, or insinuation, that to raise concern about police practices is to disrespect police.

I will say something about respecting police. And I say this as the brother of a cop, and as a member of a large, extended family of civil servants: teachers, police officers, fire fighters.

Police officers will tell you, if you listen, that zero-tolerance street policing, arrest quotas, aggressive stop-and-frisk tactics isolate cops from the people they serve. These practices undermine respect for cops; and can even put police at undue risk.

And as the good will towards police is diminished, so is the willingness of community members to cooperate with police.

And on this point I will cite legal scholar Prof. Paul Chevigny. He has written:

For legislators and judges, the police are a godsend, because all the acts of oppression that must be performed in this society to keep it running smoothly are pushed upon the police. The police get the blame, and the officials stay free of the stigma of approving their highhanded acts.

The police have become the repository of all the illiberal impulses in this liberal society; they are under heavy fire because most of us no longer admit so readily to our illiberal impulses as we once did.⁸

Professor Chevigny points the finger, not at cops, but at us. We pass the buck to police for not addressing the real, serious problems with conflict and tension created by misguided police and prosecution practices. Street cops did not write the laws or the policing policies.

What’s called for, says Chevigny, is a serious, honest public conversation about policing and law enforcement.

If we do it right, that conversation would serve the police and the communities they serve.

Footnotes
1 See, e.g., Carl Hulse, “On Criminal Justice, the Right and the Left Meet in the Center,” New York Times, Jan. 19, 2015, p. A1; Erik Eckholm, “In a Safer Age, U.S. Rethinks its ‘Tough on Crime’ System,” New York Times, Jan. 14, 2015, p. A1.
2 John Eterno, Eli Silverman, “Building a Better Compstat,” Daily News (“Be our Guest”), Jan. 24, 2011, p. 23.
3 Ibid.
4 Jan Hoffman, “Too Young to Know,” citing Dr. Hayley Cleary, assistant professor at Virginia Commonwealth University, New York Times, Oct. 14, 2014, at D4.
5 Stephanie Clifford, “Another Man Freed as Brooklyn District Attorney’s Office Reviews Cases,” The New York Times, June 3, 2014. http://www.nytimes.com/2014/06/04/nyregion/in-brooklyn-scarcellas-cases-continue-to-face-review.html.
6 Jeremy W. Newton, “False Confession: Considerations for Modern Interrogation Techniques at Home and War,” 9 J.L. & Soc. Challenges 63 (2008); C. Ronald Huff, “Wrongful Conviction: Causes and Public Policy Issues,” 18(1) Criminal Justice 15 (ABA, Spring 2003).
7 Innocence Project, “Understand the Causes”, http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php (“Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in nearly 75% of convictions overturned through DNA testing.”)
8 Paul Chevigny, Police Power (New York, Pantheon Books: 1969) pp. 280, 281.