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Despite Leaders’ Progressive Promises, NYC Remains ’Marijuana Arrest Capital of the World’

Activists protest marijuana arrests in New York City
Andrew Burton

Despite Leaders’ Progressive Promises, NYC Remains ’Marijuana Arrest Capital of the World’


I love New York.

It’s my favorite city in the world. I live and work here by choice.

We get a lot of things right. Every day I walk down the street or hop on the subway, I am reminded that I am a citizen of a very big, incredibly diverse world.

But our progressive reputation in New York often far outpaces our reality.

Regularly seen as one of the most liberal cities in the world, we have a liberal Democrat as mayor and a City Council with 47 of 51 positions held by Democrats. That’s how I know that the ugliness of America’s justice system is not a conservative problem. If that were the case, New York’s justice system would be a model for the world.

It isn’t. In fact, for decades now, this city has been a model for how not to be.

What’s weird is that the city leaders here so often claim otherwise.

No issue typifies this gap between reputation and reality more than the quiet scandal of this city continuing to arrest, charge, and convict people of color for low-level marijuana offenses.

In spite of committing to simply ticketing people for possession of small amounts of marijuana, last year the NYPD arrested an astounding 16,925 people for it. These were not drug lords and kingpins. These were the very low-level offenses they said they’d stop arresting people for.

Do the math. That’s 46 people a day. It’s an enormous waste of time and resources. And it’s horribly disingenuous to publicly make the claim that the arrests are coming to an end when clearly they aren’t.

This literally makes New York City “the marijuana arrest capital of the world,” according to a recent report from the Drug Policy Alliance. And a staggering 86 percent of those arrests are of men and women of color.

And let’s be clear — whites and people of color use drugs at roughly the same rate. Some studies even show that whites actually sell drugs at a higher rate, but people of color make up 86 percent of the arrests here in New York nonetheless.

This is a scandal. And Mayor Bill de Blasio and the NYPD continue to contort themselves to blame anything they can possibly think of other than institutional racism for this racial gulf in arrests and prosecutions.

De Blasio criticized the Drug Policy Alliance report, pointing out that marijuana possession arrests dropped by 37 percent between 2013 and 2016. But that doesn’t explain away the nearly 17,000 arrests last year.

NYPD Chief James P. O’Neill recently said they were making the arrests because people don’t like the smell. Really, man? How about we start arresting people for farts too? Arresting people because someone doesn’t like the smell? That’s not even a good lie.

This is one of many examples of city leaders here in New York talking the talk and just not walking the walk. Every time one of those ridiculous arrests is made, it sends that person down an outrageous rabbit hole in which they must now pay bail to get out, potentially get sent to the hell hole we know as Rikers Island, lose their jobs, be taken away from their families where they then miss things like birthdays and funerals. They then run the risk, again for something the city said they’d stop doing, of ultimately getting a criminal record for the very thing white people are doing with virtual impunity all over this city.

District attorneys have continued to prosecute these offenses as well. Bob Gangi, director of the Police Reform Organizing Project, said that despite DAs’ promises to lighten up on marijuana possession, PROP’s court monitors still see possession cases every time they’re in court. “If [prosecutors] were serious about challenging the racial bias in NYPD tactics and the harm that broken windows policing inflicts, they would decline to prosecute virtually all marijuana possession arrests,” Gangi told The Appeal.

This isn’t just bad politics, or bad optics — lives are being ruined. This isn’t even a war on drugs — it’s a war on people — Black and brown people — all over New York City. I’m embarrassed. It’s a human rights debacle.

Not only that, it’s horrible business. In addition to the untold tens of millions of dollars it costs to arrest, book, prosecute, and house people arrested for smoking weed, exponentially more money is then lost in potential tax revenue that could be quickly generated if this city simply caught up with other cities, states, and countries around the world.

By one conservative estimate, New York could bring in $156.4 million per year in additional tax revenue if marijuana was legalized. Translation: That’s a ton of money that could be used across this city for education or new rec centers and after-school programming. That money could be used for smart reforms to our local justice system to help fund diversion programs and the rehab centers our city so desperately needs. We’re talking about over $1.5 billion of revenue that would be generated over a decade.

Studies now show that more marijuana is consumed in New York City than any other city in the world and instead of seeing this as a growth opportunity for business and taxes, it continues to be treated as an opportunity for mass incarceration and racial profiling.

Ultimately, I chalk this up to a peculiar sense of complacency among so-called liberals and Democrats who have all of the power in the world to do better, but choose not to. And let’s not kid ourselves — these are choices. The 17,000 annual arrests of people the city said they’d leave alone are 17,000 unique choices. Passing up billions in tax revenue for something that is already being done all over the country is a choice.

And politicians can and should be held accountable for their choices.

Thanks to Keli Young.

NY Gov. Cuomo’s Terrible, Horrible, No Good, Very Bad Plan to Protect Your Kids

NY Gov. Cuomo’s Terrible, Horrible, No Good, Very Bad Plan to Protect Your Kids


New York Governor Andrew Cuomo recently unveiled a legislative proposal packaged as part of a budget amendment to expand already onerous residency and presence restrictions for some sex offenders in New York.

The proposal expands blanket presence and residency restrictions for sex offenders who are on parole or post-release supervision by vastly increasing the number of places they cannot be near. It would outlaw the presence of some sex offenders within 1,000 feet of school grounds, “any facility or institution that offers kindergarten or pre-kindergarten instruction,” or any other place that is “used for the care or treatment” of minors. The proposal also prohibits level 2 and 3 sex offenders — those whom the state deems most at risk to re-offend — from staying at homeless shelters that serve families, even if they are no longer under supervision.

In dense urban environments like New York City, such restrictions — which make it illegal for sex offenders to merely exist in many places — are tantamount to banishment. While sex offender registries (and many of the restrictions that go along with them) have proven to be ineffective and inhumane, public defenders, experts, and advocates say that few restrictions are as ineffective and punitive as those proposed by Cuomo.

“It’s hard to believe that we are debating banishment as an acceptable public safety measure in 2018,” Christina Swarns, attorney-in-charge of New York’s Office of the Appellate Defender, which provides appellate representation to individuals convicted of felonies, told The Appeal. “This conversation is particularly absurd given the overwhelming evidence that people convicted of sex offenses are more likely to re-offend when isolated and denied medical, social and economic supports. Banishment is a punishment that should remain in the dustbin of history.”

The theory behind the restrictions advanced by Cuomo is that by banishing people convicted of sex crimes from places where children are present, children will be safer. Proposals like Cuomo’s operate on the assumption that sexual offending is perpetrated by serial predators roaming the streets, but the data demonstrates that sex offenses far more commonly take place within the confines of families, relationships, schools, and workplaces — where victims know and trust their perpetrators. It is social proximity, not geographicproximity, that facilitates the majority of sex crimes.

While proponents of the Cuomo proposal suggest it targets those deemed most likely to re-offend, Lauren Stephens-Davidowitz, a supervising attorney with the Office of Appellate Defender, told The Appeal that the risk assessment tool used by New York State has never been subject to scientific scrutiny. For example, it treats a sex offender’s status as a juvenile as an aggravating (rather than mitigating) factor in assigning a risk level. So it’s unclear if the risk levels assigned by authorities, such as the Level 2 and 3 categories, are based on criteria that are scientifically sound.

Further, the research conducted on geographic restrictions like those proposed by Cuomo demonstrate that they do not succeed at their goal of increasing public safety by preventing sexual offenses. Worse than being merely ineffective, policies that force out people who are most in need of services and support, like those on the sex offender registry, actually make re-offense more likely. “The evidence is fairly clear that residence restrictions are not effective,” according to a 2015 Department of Justice research brief on sex offender management. “In fact, the research suggests that residence restrictions may actually increase offender risk by undermining offender stability and the ability of the offender to obtain housing, work, and family support. There is nothing to suggest this policy should be used at this time.”

In addition to pushing people out of their communities, they also prevent prisoners from being released back into them. Swarns of the Office of Appellate Defender told The Appeal that there are an unknown number of inmates who in custody past their serve-out dates because they cannot provide a residential address that complies with existing residency restrictions on sex offenders. In 2016, New York’s Legal Aid Society and several other organizations sued state and city officials for holding nearly 200 people past their maximum sentence since 2014. If Cuomo’s proposal is passed, it seems likely that this problem will only become worse.

Courts, however, are beginning to show an increased willingness to strike down such restrictions on sex offenders. In 2015, a unanimous Massachusetts Court of Appeals observed that “the days are long since past when whole communities of persons, such Native Americans and Japanese-Americans may be lawfully banished from our midst.” Also in 2015, the California Supreme Court overturned blanket residency restrictions applied to sex offenders, noting that they “greatly increased the incidence of homelessness” amongst people on the registry. In 2016, the federal Sixth Circuit Court of Appealsstruck down several aspects of Michigan’s sex offender registry and noted that it “consigns [the plaintiffs] to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live.”

Despite court rulings, scientific research, and even an admonition from the Department of Justice, geographic restrictions on sex offenders continue to be supported by politicians like Cuomo and New York State Senator Jeffrey Klein. Advocates, policy experts, and public defenders say that these policies are not based in fact or science and place not in my backyard politics over public safety.

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Texas’s First Death Sentence of 2018 Crystallizes the State’s Longstanding Capital Case Crisis

A marker for the founding of rural Hardin County
Nicolas Henderson / Flickr [CC BY 2.0]

Texas’s First Death Sentence of 2018 Crystallizes the State’s Longstanding Capital Case Crisis


A Texas man tried and convicted in late February of murdering his girlfriend’s daughter is the state’s first death sentence in 2018 — but it also may be its latest example of prosecutorial misconduct in a capital case.

On February 28, a jury in Hardin County, a small East Texas county near the Louisiana border, handed down a death sentence to 40-year-old Jason Wade Delacerda. According to Delacerda’s defense attorneys, it was the conclusion of a trial in which prosecutors attempted to hide exculpatory evidence, violated a rule barring witnesses from talking with other witnesses about the case, and played an emotional song from the hit 2012 movie Pitch Perfect in a bid to allude to evidence the judge had already ruled inadmissible.

Such allegations of misconduct in Texas are not limited to Delacerda’s case — in 2017, nearly half of the stays of execution granted in the state involved cases that “may have been tainted by false or unreliable evidence,” according to the website The Open File, which tracks prosecutorial misconduct.

“I’d say that this is a pervasive problem,” Amanda Marzullo, executive director of Texas Defender Service, a nonprofit working to improve the quality of representation afforded to those facing death sentences, told The Appeal“This is in part because, in general, emotions run high in death penalty cases on both sides and prosecutors are particularly aggressive.”

Attorneys representing Delacerda — who faced a capital murder charge for the 2011 murder of his girlfriend’s four-year-old daughter, Breonna Loftin — claim that his trial was marred by multiple acts of prosecutorial misconduct.

One of Delacerda’s attorneys, Ryan Gertz, said that Hardin County District Attorney David Sheffield brought Delacerda’s two sons — who were set to testify against their father — into a room with their mother and her husband, who were potential witnesses, to confer with them about their testimony. Gertz said that this meeting represented a violation of Rule 614, which states that witnesses must not share their testimony with other witnesses.

Judge Steven Thomas did not formally acknowledge the Rule 614 violation, but prevented Delacerda’s sons from testifying in the guilt phase of the trial on the grounds that it included inadmissible character evidence. Thomas, however, allowed one of Delacerda’s sons, the son’s mother, and her husband to testify during the trial’s penalty phase, which led to another alleged act of misconduct. Gertz claimed that prosecutors failed to provide notice to the defense that the testimony of the stepfather of Delacerda’s sons would include alleged crimes that Delacerda had not been convicted of, allowing him to tell the jury about being punched in the face by the defendant in a parking lot.

Additionally, Gertz alleged that the state committed three Brady violations, meaning that it failed to disclose evidence that is favorable to the defense as required by law. In one instance, prosecutors allegedly failed to disclose that one of the investigators in the case was arrested for child pornography and lying to a postal inspector about having it shipped to him by mail.

And during his closing statement, Assistant District Attorney Bruce Hoffer made what Gertz said was an improper attempt to appeal to the jury’s sympathies by displaying a picture of Breonna while playing the song “Cups” from Pitch Perfect featuring the refrain “You’re gonna miss me when I’m gone.”Hoffer later told the media that the song choice was inspired by a statement Breonna allegedly made to her grandmother, “Will you miss me when I die?” weeks before her death that the judge had ruled inadmissible because it was considered hearsay.

“It was ridiculous,” Gertz said. “I’ve never had anybody so blantantly appeal to a jury’s emotions as that, the only thing that would’ve been worse than that song would’ve been ‘Wind Beneath My Wings.’”

The Hardin County district attorney’s office did not return a request for comment from The Appeal.

Claims of prosecutorial misconduct — including Brady violationsjunk scienceand unreliable witnesses — in capital cases like Delacerda’s are commonplace in Texas.

In 2017, the execution of Paul David Storey — who was convicted in the 2006 murder of Jonas Cherry during a robbery of a mini golf course — was stayedafter his attorneys discovered that prosecutors lied to the jury about the victim’s family’s wishes to pursue the death penalty.

During Storey’s 2008 trial, prosecutors insisted that Cherry’s parents sought to have Storey executed, despite the fact that they had told the state that they didn’t believe in the death penalty. “As a result of Jonas’ death, we do not want to see another family having to suffer through losing a child and family member,” Glenn and Judith Cherry later wrote in a 2017 letter to the Texas Board of Pardons and Paroles, “due to our ethical and spiritual values we are opposed to the death penalty.”

Also in 2017, the execution of Kosoul Chanthakoummane, a man convicted and sentenced to death for the 2007 murder and robbery of a real estate agent in Collin County, Texas, was stayed after defense attorneys argued that the state had relied upon discredited forensic evidence, including bite marks. As of January of 2017, bite mark evidence has resulted in more than two dozen wrongful arrests and convictions.

Such cases demonstrate that even though executions are on the decline in Texas, the state remains a locus for misconduct in death penalty prosecutions.

Compounding the misconduct crisis is the fact that systemic issues in death penalty cases are less likely to be remedied in small counties like the one where Delacarda was tried. Redirecting limited public resources toward costly capital cases means that pressure on prosecutors to secure a death sentence is high, encouraging a do-whatever-it-takes-to-win approach.

“For the rural counties they’re going to decide, can we fix our broken drainage systems,” Jim Marcus, a University of Texas law professor specializing in capital punishment told The Appeal, “or put this guy on death row?”

But difficult, longstanding problems like capital case funding do not justify misconduct, Marcus added, noting that although it is often forgotten, prosecutors are supposed to be carrying out an important duty:

“The prosecutor’s ethical obligation is not to win at all costs, their role is to do justice.”

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