What to look for in criminal justice reform in New York in 2020

Criminal justice reform had a banner year in New York State. With Democrats snagging the State Senate and Assembly, they were able to push major reforms at a state level. While bail and discovery reform are set to take effect on Jan. 1, many other significant measures did not pass in 2019 and are still on the table for 2020’s legislative session in Albany.

Here are 15 of the biggest legislative battles around criminal justice reform that we expect to see in 2020.

Elder parole

This bill would make incarcerated people 55 years old immediately eligible for parole if they have served at least 15 years in prison — no matter what their sentence is. It did not come to a vote in either chamber of the state legislature during the 2019 legislative session.

“One thing I learned from the Senate’s work on historic criminal justice reform last year is that many legislators are open to improving the system but aren’t always aware of its biggest shortcomings,” State Sen. Brad Hoylman told the Eagle.

Fair and timely parole

This bill would change the standard of parole, centering not on the original crime, but the incarcerated person’s rehabilitation while in custody.

Currently, when considering parole for an individual, the parole board must consider whether granting parole would “deprecate the seriousness of [the individual’s] crime as to undermine respect for law.” The bill would omit this sentence, allowing the parole board to assess the person’s risk to society.

“Parole reform is a critical component of addressing disparities in parole release for incarcerated people and will more broadly confront mass incarceration by asserting that our state’s criminal justice system believes in redemption,” said State Sen. Gustavo Rivera. “By enacting Fair and Timely Parole in New York, our criminal justice system will place a greater focus on remorse, contributions to society, and rehabilitation, rather than permanent punishment, when determining whether an incarcerated individual should return home.”

Codifying the special prosecutor

This bill would codify and expand the role of the New York State Attorney General as special prosecutor in instances of police misconduct, and, specifically, killings of civilians by police. Currently, because of a 2015 executive order by Gov. Andrew Cuomo after the death of Eric Garner, the attorney general investigates all killings of unarmed civilians by police.

The special prosecutor bill would codify the executive order into law and would expand the attorney general’s investigative powers to include cases in which any person, armed or not, is killed by police. 

When asked by the Brooklyn Eagle, Attorney General Letitia James did not come out in favor of the bill. 

“The bill makes explicit all cases of police killings and deaths would be handled by the attorney general, and they can’t be punted to the district attorney,” said Joo-Hyun Kang, who runs Communities United for Police Reform, which helped draft the language of the bill and also pushed for the 2015 Cuomo executive order.

Restoring voting rights to people in prison and on parole

This bill would allow for people incarcerated in New York State to vote in elections in the city, town or county they lived in before their arrest. A controversial bill, it’s only co-sponsor besides State Sen. Kevin Parker, who introduced it, is State Sen. Julia Salazar. Both represent Brooklyn.

Presidential candidate Bernie Sanders supports the idea of allowing prisoners to vote, but Cuomo did not support the bill last session. 

“You are in prison for a felony, you’re paying your debt to society — I don’t think you should have the right to vote and participate as a full citizen,” he said on CNN in April. 

Only two states — Maine and Vermont — allow inmates to vote. New York also prohibits those on parole from participating in elections.

H.A.L.T. solitary confinement

This bill would restrict the use of solitary confinement throughout the state. HALT would set strict caps for the duration of solitary confinement: fifteen consecutive days or 20 total days in any two-month period. There is currently no legal limit on how long prisoners can be held, and some are held for years in solitary.

The HALT bill would also eliminate solitary entirely for people under 21, over 55, pregnant people and those with disabilities. 

HALT had enough votes to pass in the State Senate but never got to the floor for a vote. Cuomo did not support the bill, though he supports solitary confinement reform. 

The bill did not pass last session despite a hunger strike by advocates and solitary survivors in the days leading up to the end of the session. 

End police secrecy and repeal 50-a

This bill would repeal the controversial law known as 50-a that shrouds police misconduct in secrecy.

The law, which has been on the books since the 1970s, was originally intended to stop defense attorneys in court from cross examining officers based on “personnel records used to evaluate performance toward continued employment or promotion.”

Since then, the statute has expanded to “allow police departments to withhold from the public virtually any record that contains any information that could conceivably be used to evaluate the performance of a police officer,” according to the State Committee on Open Government in 2014. 

Mayor Bill de Blasio supports 50-a reform, but has come out against the repeal legislation. Cuomo has been quieter on the subject than the mayor, with a spokesperson in May saying, “We would be open to considering changes to the law.”

End the lifetime felony ban on jury duty

This bill would allow convicted felons who have served out their entire sentences as well as any parole or supervision to participate in jury duty. Currently, New Yorkers convicted of felonies are banned for life from serving on juries.

The legislation passed the State Senate along largely partisan lines, with four Long Island Democrats voting against the measure. It never made it to a vote in the Assembly, despite passing 14-6 in the Assembly’s Judiciary Committee.

Increase protections for juveniles interrogated by police

This bill would require those arrested under the age of 18 to consult with a lawyer before being subjected to interrogation by law enforcement. 

While current law requires “immediate” notification of family when a minor is arrested, police and district attorneys are able to interrogate underage people without a lawyer or family member present. The goal of the bill, according to its text, is to make sure that — beyond the reading of a person’s Miranda Rights — underage people are “adequately and appropriately able to protect their right to remain silent pursuant to the 5th Amendment of the United States Constitution.”

Require jail and prisons to provide medication-assisted treatment

This bill would enable incarcerated people with opioid use disorder to access medications that reduce opioid cravings and withdrawals without the deadly side effects of drugs like heroin and oxycodone. Daily, monitored use of methadone and buprenorphine — two drugs that help reduce dependency when combined with behavioral treatment  — has been shown to be an effective component of a comprehensive treatment plan, according to the federal Substance Abuse and Mental Health Services Administration. 

Treating drug addiction for people behind bars addresses the underlying cause of many of the crimes that landed them in prison in the first place, said the Katal Center for Health Equity and Justice in testimony before the Assembly last year. The state must “address the needs of individuals who still enter and cycle through the criminal justice system. We know that providing medication treatment while in jail and prison works.”

Individual counties have implemented medication-assisted treatment programs in their jails, and the bill passed the Senate during the last legislative session. Opponents, however, say introducing methadone and suboxone could fuel a drug trade — methadone can be abused.

Other states have implemented intense supervision requirements, including “mouth checks” to ensure the detainee swallowed the substance. 

Repeal loitering for the purpose of prostitution

This bill would repeal a section of state penal code that gives police officers grounds to arrest a person for allegedly stopping, talking to or beckoning at others in a public place.

The law is known as the “walking while trans” ban, because police have used arbitrary observations as grounds for arrest, such as a defendant’s “short dress” or “tight black pants.” The law disproportionately impacts trans women of color who are profiled as sex workers and have been arrested while waiting for the bus or standing near LGBTQ+ bars.

In June, the NYPD agreed to amend its patrol guide to explicitly prohibit arrests based solely on factors such as a person’s gender, gender representation, location, clothing or arrest history. 

State Sen. Brad Hoylman, the bill’s sponsor, vowed on Trans Remembrance Day to pass the measure eliminating the section of penal code.

“I commit to you today … we will repeal the ‘walking while trans’ law this session in Albany,” Hoylman said.

Protect our courts act

This bill would prevent Immigration and Customs Enforcement agents from arresting people inside New York State courthouses, or when they are on their way to or from court without a judicial warrant or court order. 

Supporters of the legislation, including Brooklyn District Attorney Eric Gonzalez, Manhattan DA Cyrus Vance and Bronx DA Darcel Clark say the measure would encourage noncitizen crime victims and witnesses to visit courts without fear of arrest. Acting Queens District Attorney John Ryan said he does not think the state has the authority to limit federal law enforcement.

Queens District Attorney-elect Melinda Katz supports efforts to keep ICE away from courts and backed a lawsuit filed against ICE by Gonzalez and Attorney General Letitia James. 

Brooklyn and Queens accounted for the most courthouse ICE arrests of any counties in the state last year, according to a report by the Immigrant Defense Project. 

The Office of Court Administration issued a directive in April mandating that ICE agents present a signed judicial warrant before making an arrest inside a courthouse. At least seven people have been arrested by ICE inside state courthouses in 2019, according to OCA.

End rogue DNA databanks

This bill would establish a single computerized state DNA identification database and require towns and cities to erase DNA records stored in municipal DNA databases.

A DNA database developed by the NYPD includes more than 82,000 genetic samples that cops have acquired from convicted felons, criminal suspects and people who were never even charged with an offense. 

The 82,473-sample database maintained by the Office of the Chief Medical Examiner increased by nearly 19,000 entries since July 2017, according to data obtained by the Legal Aid Society through a Freedom of Information Law request in August.

In addition to DNA samples collected from people convicted of crimes, officers collect DNA from people who are merely called in for questioning. When an individual smokes a cigarette or takes a sip of water in a police precinct, the DNA left on those items is fair game for cops to collect.

The NYPD contends that the database is a vital resource for solving crimes, including cold cases, but civil rights advocates say the the DNA log lacks oversight and ensnares people — predominantly people of color — who have no idea their genetic material has been collected by the city.

Expand law allowing survivors of trafficking to clear criminal records

This bill would enable survivors of human trafficking to clear their criminal records of any offense they were forced to commit, not just prostitution-related offenses.

Brooklyn District Attorney Eric Gonzalez and Manhattan DA Cyrus Vance both support the bill.

New York lawmakers enacted a pioneering piece of record-clearing legislation in 2010, but that measure only enables trafficking survivors to get their prostitution-related convictions expunged. 

Traffickers often force their immigrant victims to perform various crimes, including theft and drug offenses, that can ruin their chance of obtaining asylum or other relief while exposing them to the possibility of deportation, advocates say.

“Trafficking is a lot more complex than that,” said Rosie Wang, director of Legal Advocacy and Services at the Sex Workers Project of the Urban Justice Center. “Traffickers will force their victims to do criminal actions for them, like shoplifting and carrying drugs. They’re not eligible for relief because they’re not prostitution-related but they are trafficking-related.”

The police statistics and transparency act

This bill would require local police departments to report their total number of arrests and tickets for violations and misdemeanors, and to indicate the race, ethnicity and gender of individuals charged. People of color are disproportionately arrested or ticketed for misdemeanors and violations in New York City.

The bill would also compel cops to report more information on deaths that occur during arrests or other police activity. 

The State Assembly has passed the STAT Act on numerous occasions, but it has not passed the Senate. 

Expand youthful offender protections

Criminal justice reform advocates have called on the state to expand the age range for “youthful offender” status. A youthful offender record is automatically sealed and does not have to be reported as a criminal conviction on college or job applications, according to the state courts website. 

Defendants between ages 16 and 19 currently qualify for youthful offender status, and a bill introduced last legislative session would have expanded the status up to age 21. Reformers have called on the state to expand youthful offender status to people 25 years old based on brain development.