Tagged: New York State

Tired of Corruption? Hold On … A Possible Cure by Constitutional Convention

POST WRITTEN BY: John A. Vitagliano (’17), J.D. Pace Law School

U.S. Attorney for the Southern District of New York Preet Bharara has criticized New York’s political culture, where

deal-making has long been done in Albany by ‘three men in a room’ (the governor, the State Assembly speaker and the State Senate majority leader), who work in secret and without accountability to decide [the states] most vital issues.

On May 12, 2015 New York Senate Majority Leader, Republican Dean Skelos vacated his post amidst a criminal complaint filed for federal charges involving fraud, extortion, and solicitation of gratuities and bribes.

On January 21, 2015, the Former Speaker of the New York State Assembly Sheldon Silver, Assemblyman since 1976 and continuously re-elected speaker since 1994, was indicted on several criminal corruption charges using his political power and influence that netted him $4 million in payoffs.

Mr. Silver, a Democrat from the Lower East Side of Manhattan, was accussed of steering real estate developers to a law firm that paid him kickbacks. He was also accused of funneling state grants to a doctor who referred claims to a second law firm that employed Mr. Silver and paid him fees for referring clients.

Mr. Silver has resigned from his position as Speaker and is currently awaiting trial to defend himself against the federal charges. The exposure of Mr. Silver’s conduct brings Governor Andrew Cuomo’s termination of the Moreland Commission back into the spotlight. The anti-corruption panel was set up to investigate public corruption in New York State and was disbanded after it began looking at the behaviors of certain law firms tied to the governor and Mr. Silver.

Over the past few years, the New York Legislature has been infested with corruption and political misconduct. On February 5, 2015, Mr. Silver and former New York State Assemblyman, Vito Lopez, settled a sexual harassment lawsuit for $580,000 using state funds to pay over 90% of the settlement. William Scarborough resigned from his position and plead guilty to corruption charges in April 2015. Bronx politician Nelson Castro was sentenced to two years probation and 250 community service hours after pleading guilty for lying to investigators. Due to Castro’s cooperation, Eric Stevenson was convicted and sentenced to three years in prison for accepting bribes from businessmen in May 2014. In October 2014 Gabriela Rosa was sentenced to a year in prison after pleading guilty for making false statements in a bankruptcy petition and lying to authorities regarding her marital relationship. William Boyland was convicted in March 2014 on federal charges including bribery, extortion and mail fraud. In February 2014, Malcolm Smith was found guilty of conspiracy, wire fraud, bribery, and extortion when he attempted to scheme his way onto the ballot. In July 2014 Thomas Libous was indicted for lying to federal agents in regards to abusing his political influence in order to obtain a job for his son. In 2013 Pedro Espada Jr. was sentenced to five years in prison for stealing hundreds of thousands of dollars from a health care network he ran. In 2012 Nick Spano, after pleading guilty to a felony for filing fraudulent tax returns, served one year in prison.

Amidst all the public corruption and political misconduct in New York State, the question becomes – can we trust our elected officials? Regardless of political party, can the citizens of New York rely on politicians to uphold their offices with honesty and integrity? Do we really know if our representatives have the public’s interest at heart when they are conducting “business” behind closed doors? Given the recent developments the answer appears to be NO.

The apparent corruption in New York may engender a strong grass-roots movement for a State Constitutional Convention to assist in revamping our political system. Every 20 years, the New York Constitution mandates voters to decide whether to hold a statewide convention to change or amend the constitution and the government. The 2017 ballot will ask the voters if a State Constitutional Convention should be held. Most politicians oppose a constitutional convention because

it is feared that a convention might take steps to diminish the legislature’s institutional power or incumbents’ chances of re-election.

Citizens of the state with honest motives, ethics and morals would have the opportunity to run for delegates for the Convention to redesign the New York State government. While many obstacles would be met if a Constitutional Convention were to take place, it is a legitimate opportunity to rid the state of corrupt politicians.

Action should be taken in order to change the New York political system and restore the integrity of the State. If nothing changes, nothing changes; public corruption and political misconduct will continue to run rampant within our state and voters will only have themselves to blame.

Correctional Association Report on Women in NYS Prisons

POST WRITTEN BY: Michael B. Mushlin, Professor of Law at Pace Law School, Scholar, and Renowned Expert on Prisoners’ Rights.

Following an exhaustive five year investigation the Correctional Association of New York has just released a ground- breaking study of the treatment of women in New York state prisons. The report entitled Reproductive Injustice: The State of Reproductive Health Care for Women in New York State Prisons tells a distressing tale about how female prisoners are denied basic rights essential for women including substandard gynecological care and insufficient supplies of feminine hygiene products and toilet paper. Chillingly, the report describes the horrible practice of shackling pregnant women during labor, delivery, and postpartum recovery, in apparent violation of the state’s 2009 law barring such practices, as well as throwing some of these women into solitary confinement, which could have serious consequences for the mental health of the mothers and for the health of their unborn children.

The Correctional Association of New York is a 170 year old non-governmental organization with the legal authority to visit New York’s prisons and report to the public and to the Legislature its findings. It is one of only two such organizations in the country. The author of this important study, Tamar Kraft-Stolar, director of the Correctional Association’s Women in Prison Project, will visit Pace Law School on April 1st to speak at a PILSO Sponsored forum open to the public and also to speak at the law school’s Prisoners’ Rights Course.  More details about this event will be forthcoming.

NY Court of Appeals Upends Police Tricks Behind Interrogation Doors

False confessions have long been recognized as one of the leading causes of wrongful convictions. Case studies have proven that an individual’s confession to a crime is not always indicative of the confessor’s actual guilt. In fact, a number of external factors may lead an individual to falsely confess to committing a crime. According to studies conducted by the Innocence Project, many false confessions have been prompted by conditions in which the confessor was placed under  duress during police interrogations, or was prodded to give false information as a result of police coercion or subterfuge tactics. Laurie Shanks, clinical professor of law at Albany Law School in Albany, recently explained that “[t]here’s a perception that people don’t confess to crimes they didn’t commit, [b]ut the science is that absolutely they do.”

Yet, the rule of law determining the voluntariness of a confessor’s statement, when such statements are adduced by police subterfuge, has remained a vital and perplexing issue within our criminal justice system. The admissibility of such confessions has been a hotly debated topic among criminal defense practitioners and prosecutors, irrespective of recent case studies proving the fallibility of such confessions. In spite of recent findings, prosecutors have continued to hold the upper hand when arguing that such confessions are voluntary and admissible at trial, relying on the proposition that certain police ruses are essential to conducting meaningful interrogations of suspects, and vital to the police’s ability to expeditiously solve certain crimes.  Under this guise, the Courts have heeded to the government’s “demands” and have consequently become more laxed in uprooting such questionable police tactics –noting that confessions are “essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.” McNeil v. Wisconsin, 501 U.S. 171, 181 (1991). As such, courts around the nation have routinely accepted that “deceit and subterfuge are within the ‘bag of tricks’ that police may use in interrogating suspects.” State v. Schumacher, 37 P.3d 6, 13-14 (Idaho Ct. App. 2001); See also United States v. Bell, 367 F.3d 452, 461 (5th Cir. 2004) (observing that deception is “not alone sufficient to render a confession inadmissible”).  

In New York, however, it appears that the courts are becoming less reluctant to address this significant legal issue , and more inclined than many of their sister state courts to fully determine on a case by case determination whether a confession could be deemed involuntary when police misrepresentations work to overcome a confessor’s will. See N.Y. Criminal Procedure Law § 60.45 [2][b][i]  (treating as “involuntarily made” a statement of a defendant that was  elicited “by means of any promise or statement of fact, which promise or statement creates a substantial risk that the defendant might falsely incriminate himself”).

Notably, the New York Court of Appeals has recently made clear that not all police subterfuge is acceptable during the interrogations of suspects. People v. Thomas, 2014 WL 641516 (N.Y. 2014). In Thomas, the defendant had been prodded by police to take responsibility for injuries suffered by his four-month-old son, who died from intracranial injuries purportedly caused by abusively inflicted head trauma, in order to save his wife from arrest. The Court held that the defendant’s confession,  admitting that he had inflicted traumatic head injuries on the infant, was involuntary as a result of “[t]he various misrepresentations and false assurances used [by] [police] to elicit and shape [the] defendant’s admissions.” Id. The court explained that the police officers false representations to the defendant had manifestly raised a substantial risk of false incrimination. The Court was extremely troubled by police lying to the defendant “that his wife had blamed him for [their] [son’s] injuries and then threatened that, if he did not take responsibility, they would “scoop” Ms. Hicks out from the hospital and bring her in, since one of them must have injured the child.” Id.  The Court also observed that “there [was] not a single inculpatory fact in defendant’s confession that was not suggested to him. He did not know what to say to save his wife and child from the harm he was led to believe his silence would cause.” Id.

The New York Court of Appeals also recently affirmed the Second Department’s decision in People v.  Aveni, 100 A.D.3d 228 (2d Dep’t 2012) where the appellate court  had also found that the defendant’s confession was coerced  as a result of the police repeatedly deceiving the defendant about the status of his girlfriend’s health condition. In Aveni, the defendant had been prompted by police to make incriminating statements about the herion overdose of his girlfriend. During interrogation, the police had falsely told the defendant that his girlfriend was still alive, “and implicitly threaten[ed] him with a homicide charge if he remained silent.” The court explained that the police made the defendant believe that “the consequences of remaining silent would lead to the [girlfriend’s] death, since the physicians would be unable to treat her, which “could be a problem” for him.” Id. In upholding the Second Department’s decision, the NY Court of Appeals observed that “[t]he false prospect of being severely penalized for remaining silent, raised by defendant’s interrogators, was, in the court’s view, incompatible with a finding that defendant’s confession was voluntary beyond a reasonable doubt.” People v. Aveni, 2014 WL 641511 (N.Y. 2014).  It noted that “the Appellate Division used the correct legal standard in its reversal, [and] [i]ts determination that the potential to overwhelm defendant’s free will was realized was plainly one of fact.” Id.

Steven Drizin, clinical professor at Northwestern University School of Law in Chicago commented on the recent decisions in New York, noting that “[t]he court did not set any hard and fast rules, but it did issue some clear warnings that these tactics will be scrutinized closely in future.”  He explained that until now “[t]here’s been too much deference given to police officers, and they’re accustomed to having free rein with suspects behind interrogation doors.”

Related Readings

Search of Closed Containers Incident to Arrest: Is a Cell Phone Just Another Container? by Thomas Kapp

The Pace Criminal Justice Center is honored to feature an article by Thomas Kapp,  Search of Closed Containers Incident to Arrest: Is a Cell Phone Just Another Container?  Thomas Kapp is the Senior Investigative Attorney at the Bronx County District Attorney’s Office and a member of the Pace Criminal Justice Center Advisory Board. In his article, he

review[s] the current federal standard for a search incident to arrest of containers and how some federal and other state courts have addressed the search of a cell phone.  In addition, [he] discusses the development of the law in New York of the right of police to conduct a search incident to arrest of a closed container and will also address whether that right includes the search of a cell phone incident to arrest, an issue which may be ripe for our courts.

As the article notes, this issue will be decided this term by the United States Supreme Court.  Mr. Kapp concludes his analysis by assessing the future of searches of cell phones incident to arrest in the State of New York.

Enjoy reading the full article: Thomas Kapp – Search of Closed Containers Incident to Arrest: Is a Cell Phone Just Another Container?

Prison Reform: New York Strikes Deal To Limit Solitary Confinement

New York has taken a substantial step in reforming its use of solitary confinement when disciplining prisoners throughout its correctional facilities. On Wednesday, the state reached an agreement in Federal Court to significantly curtail the use of solitary confinement, and to prohibit the use of such confinement when dealing with juvenile inmates.

According to the settlement, the state’s correction facilities will also use a more comprehensive approach when seeking to utilize solitary confinement as a disciplinary tool for inmates caught violating prison regulations. Specifically, correction officials will now adhere to “sentencing guidelines” that will dictate the length of time that can be imposed on certain infractions, and the maximum period that an inmate can be placed in solitary confinement.  Likewise, the use of solitary confinement will also be limited to a period of 30 days when dealing with inmates who are pregnant, and those inmates who are disabled.

Notably, New York’s decision to limit the use of solitary confinement has come complimentary to a host of other states that have also begun to enact similar reform, including Colorado, Mississippi, and Washington. This recent movement amongst the states to deal with solitary confinement has come greatly appreciated by many humanitarian groups that have steadfastly contested the use of such confinement, noting the extremely negative psychological impact that it has on prisoners.  Some prison officials have also begun advocating against the use of solitary confinement due to the elevated cost and risks associated with its use. Studies have suggested that segregated housing can be two to three more times costly to operate than general housing for inmates, and fail to address the fact that

[i]nmates kept in such conditions, most of whom will eventually be released, may be more dangerous when they emerge.

New York’s reform has also come at a time when the United States leads all other democratic nations in the number of inmates being held in solitary confinement. According to a New York Times report, there are at least 25,000 prisoners in solitary confinement within the United States, where some inmates are left to spend weeks, months, or even decades. Other studies have presented startling statistics relating to segregated housing within U.S. prisons, noting that up to 80,000 prisoners have been annually held in prison segregation units between federal and state facilities.

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