A groundbreaking new ruling may force a reckoning over the way the most incarcerated state in the world pays for its criminal justice system.
On Thursday, Judge Sarah Vance of the Eastern District of Louisiana found that New Orleans’ criminal district judges are operating their courts with a clear conflict of interest: The judges control the revenue from the fines and fees they levy on poor defendants. The unsurprising consequence of this arrangement is that judges often jail people who can’t afford the fines without considering their ability to pay, creating a de facto debtors prison.
Vance found that this conflict of interest violated defendants’ right to due process. This unconstitutional practice isn’t limited to New Orleans. In fact, it’s dictated by state law.
“This conflict of interest exists by no fault of the Judges themselves,” she wrote. “It is the unfortunate result of the financing structure, established by governing law, that forces the Judges to generate revenue from the criminal defendants they sentence. Of course, the Judges would not be in this predicament if the state and city adequately funded [the criminal court].”
Vance’s ruling was limited to New Orleans. But it poses a clear shot across the bow to the state legislature.
Louisiana has long funded its courts on the backs of its predominantly impoverished, African American defendants. Judges rely on fines and fees to boost their budgets and pay for basic court functions. This is known as a “user pay” system— where the “users” are the people being funneled through the criminal justice system.
New Orleans’ judges were caught spending this user-generated revenue on luxury health insurance plans and other perks for themselves in 2010. After that scandal was exposed, the fund has mainly paid for staff salaries.
The statute explicitlyencourages other Louisiana courts to use these funds to pay for court reporters, clerical or maintenance staff, a law library, and any equipment the judges deem “germane” to court operations.
No matter how they choose to spend the money, the judges’ power over fines and fees revenue creates a conflict of interest.
“This funding structure puts the Judges in the difficult position of not having sufficient funds to staff their offices unless they impose and collect sufficient fines and fees from a largely indigent population of criminal defendants,” Vance wrote.
Another lawsuit targeted Ascension Parish’s funding scheme in 2016, pointing out that fines and fees fed directly into the salary of the judge who set them. The state legislature quickly passed a law that transferred control of the fund to the parish government’s financial officer — and required Ascension Parish to allocate enough money to fully fund the court. But they left the state’s overall financing structure intact.
Meanwhile, these fines and fees constitute a massive transfer of wealth from working-class African American communities to the system that arrests and incarcerates them at disproportionate rates. A recent report by the Vera Institute of Justice detailed how court costs target and destabilize defendants and their families. Altogether, poor New Orleanians pay more to government agencies than they receive. New Orleans defendants paid $4.5 million in fines and fees in 2015, a sum that surpasses the total amount of Temporary Assistance for Needy Families (TANF) cash welfare New Orleans residents received in the same time period by a million dollars.
This system is not only unconstitutional; it’s financially unsound. Vera’s reportfound that the revenue generated from fines and fees was dwarfed by the amount the city spent jailing people who couldn’t pay. By transferring the financial burden to those who can least afford it, “the state has one hand in the pockets of poor communities, and with the other hand it’s picking the pocket of city government,” Vera executive director Jon Wool wrote.
If Vance’s ruling is upheld, it will leave other courts in the state vulnerable to similar challenges until the state changes the law.
The user pay system has allowed Louisiana to hide the full cost of its exceptionally high incarceration rates. Finding the money to fully fund the state’s hyperactive criminal system will be no small task for the state legislature. Louisiana has been slowly clawing its way out of a “historic fiscal crisis” manufactured by years of steep tax cuts and corporate subsidies under former Governor Bobby Jindal.
However, in recent years, the massive budget pressure inspired lawmakers to examine exactly how much the state is spending to arrest and imprison its citizens. Republican legislators repeatedly cited costs to push sentencing reform and release nearly 2,000 people from prison. The final criminal justice reform package passed in June is expected to save the state $262 million.
Once the state government is forced to shoulder the true cost of its courts, it could accelerate the sudden momentum for criminal justice reform. Or it may simply find a new way to sidestep the price of mass incarceration.
Yang Song fell four stories onto a sidewalk in Flushing, Queens on the night of November 25th. An officer with the New York City Police Department accompanied her, unconscious, to New York Presbyterian Hospital where doctors placed her on a respirator. They worked for hours: the 35 units of blood they transfused did not take, given the severity of her injuries from the thirty foot fall. NYPD later said that Yang fell from an apartment building on 40th Road while police were attempting to arrest her for allegedly engaging in sex work. These were among the sparse details they released after Yang’s death the following morning. She was 38. The NYPD’s Force Investigation Division, assigned to deaths in custody, would investigate.
Hai Song, Yang’s younger brother, who lives in Shenyang, China, missed two calls from his sister around 6:45 p.m. that night, less than an hour before the fall, according to his WeChat history. Yang had been planning to travel to China to see him on December 15th, and Hai was looking forward to introducing his sister to his four-year-old son. “It feels so painful,” Hai, 35, told The Appeal this week, in Chinese and speaking through a translator. “I missed the last chance to talk to my sister.”
When they heard about Yang’s death, Hai and his 65-year-old mother, Yumei Shi, bought plane tickets. They arrived in New York on December 5th — their first trip to the United States. A taxi dropped them on 40th Road in Flushing, where they knew Yang had worked. Both speak little English. They intend to plan a funeral, seek out a lawyer, and piece together the circumstances of Yang’s death. “Many things are unclear,” Hai said. “The police haven’t provided us a fair explanation.”
Yang’s brother and mother are haunted by details she shared with them over the phone this year. Yang described being sexually assaulted by a man who flashed a badge and gun and claimed to be an undercover cop, they say. Yang also told them that the police urged her to become a confidential informant this fall.
“I hope to know the truth,” Shi told The Appeal, also through a translator. “We want to know whether this was a retaliation from the police and they forced her to die.”
This week, outside the apartment where Yang worked, there were still four bouquets of flowers on the threshold. Yang’s confidences have left her mother and brother wary and defensive. While the police maintain that they were not in the room when Yang jumped off the building, both Hai and Shi insist that she would not kill herself. In the absence of a thorough explanation from the NYPD, they are left with the stories Yang shared with them about her life in Flushing — and of the police she said she felt harassed and intimidated by.
Michael Chu, founder of the Flushing Neighborhood Watch Team, has an office on 40th Road across the street from where Yang fell. The walls are papered over with layers of clippings from local Chinese-American newspapers. He’s worked there since 1987, offering everything from immigration and attorney referrals to marital dispute mediation. He’s also friendly with the women who work in the massage business on the block and engage in sex work — he calls them the “sisters” — and defends them against taunting teenagers.
“When they are in this type of business, then nobody care,” Chu told The Appeal. “So some police just take advantage and make situation worse and make the circumstances tough.”
Locals referred Yang’s family to Chu as soon as they arrived in New York last week, and he’s been helping them facilitate media requests ever since. On Tuesday, Chu hosted Shi and Hai over sweet coffee in styrofoam cups. He ringed chairs around a folding table stacked with front-page articles about Yang’s death from the Chinese-American press featuring her social media selfies.
Hai thumbed through his Chinese mobile phone, bringing up photos of the room where his sister worked, which he had taken just days before. Hai held up one image: on her balcony, there was still a carton of eggs and two apples in a red plastic bag, now resting in the fresh snow. “When we came here, my mother and I found many facts that are inconsistent with the media reports,” he said. “And many facts are buried under the surface.”
“My sister indeed was a kind girl. She was not like what people might think she was,” Hai added. “She even sent back milk formula from the U.S. for my son. And chocolates, presents as well. She often called my parents to talk to them even when she was busy because she knew this would make them happy.”
A hard worker, Yang “never had a vacation, even for the New Year, even the holiday time,” according to Hai. “She worked for her dream. She was not someone who likes to give up.”
Yang moved to Flushing in 2013, according to Hai, along with her 78-year-old husband Zhang Zhou. Before that, the couple ran two Vietnamese restaurants on the island of Saipan — a U.S. Commonwealth in the western Pacific Ocean, about three-and-a-half hours south of Japan by plane. “My sister worked with the staff in the dining hall and her husband worked inside the kitchen as the cook,” Hai said. Yang and Zhou married there in the early 2000s, to the frustration of Yang’s parents, who did not approve “because her husband is so much older than her,” according to Shi. The couple had economic success until the Tohoku earthquake and Tsunami in 2011. Tourism took a massive hit, and Zhou had American citizenship, so the couple moved to Flushing, where Yang acquired temporary green card status and hoped to eventually open her own spa. But work in the city was tough: she provided home health care to her ailing husband for a about year, her mother said. She also worked as a waiter, and eventually told her mother that she was working “for a foot spa.” Zhou also didn’t know about Yang engaging in sex work, according to Hai, until he “learned it from a friend.”
Vice stings targeting so-called “massage parlors” exploded in recent years, primarily in Chinese immigrant neighborhoods in Queens and Brooklyn. According to a 2017 report from the Urban Institute and the Legal Aid Society, arrests of Asian-identified people in New York City charged with both unlicensed massage and prostitution increased by 2,700 percent between 2012 and 2016. Yang herself was arrested and charged with prostitution on September 27th, two months before her death, during a vice operation in the same building. That case was open when she fell, the next court date scheduled for December 1st.
“She worked for her dream. She was not someone who likes to give up.”
At the same time, other anxieties were brewing. Yang and her mother spoke often enough that when she didn’t call for six days in September, Shi was distraught. When they did make contact, what she learned concerned her more.
Shi recalled the conversation in Chu’s office Tuesday, her brown tweed coat pulled closed over her chest. “She said, ‘Mom, I was … was… was harassed by the police,’” Shi recalled. Yang told her mother that a man claimed he was a police officer and flashed a badge at her, then made sexual demands. “I asked her whether she satisfied his demand. She said ‘I didn’t dare to not to. He pulls out a gun.’”
“She also told me [that] when he got what he wanted, the police officer said, ‘If you report this to the police, I would…’ [and] he threatened her. And, ‘If you don’t report it, I’ll protect you.’”
Yang confided in her mother about reporting the assault to the police, Shi said. Yang also described the assault to attorney Mingli Chen, her immigration lawyer and informal legal consult, and told him that she filed a complaint against the man with the NYPD. “She was asked to go to precinct to point out a person in the lineup,” Chen told The Appeal. “She told me immediately she was able to point out the guy. Seemingly she never received any follow-up.” The NYPD denied the existence of a formal complaint filed by Yang.
Before the fatal sting this November, Shi said, Yang also confided that police had asked her to become a confidential informant: to “report on other masseuses.” According to Yang, a follow-up meeting with NYPD was scheduled for early this month.
“They said: ‘We can pay you. But you have to sign a contract with us,’” Shi recalled. Shi discouraged her daughter from agreeing to be an informant. Yang was also hesitant. According to her mother, she told police, “I don’t want to do this. I don’t want to snitch.”
Chen, the immigration lawyer, told The Appeal that Yang confided in him as well about the informant request. “She told me the precinct asked her whether she wanted to be an informant,” he recalled this week. “She was [feeling] pressure [and wondered] does she have any risk? Any danger?”
The NYPD did not comment to The Appeal about whether Yang was being recruited as a confidential informant.
Setting aside the unknowns in Yang’s case, Chu of Flushing Community Neighborhood Watch acknowledges the systemic pressure Yang and other masseuses deal with on a daily basis. “There’s social, economic, police — many factor which create this kind of pressure,” he said.
Predatory encounters like the ones Yang’s family described are not uncommon. One NYPD officer, Michael Golden, was suspended after a department trial in June after being accused of groping and having sex with six women, including Chinese immigrants, during undercover prostitution stings.
Police “engage in inappropriate sexual contact with clients,” Leigh Latimer, a supervising attorney with the Legal Aid Society who represents clients charged with prostitution, told The Appeal. In any given case, though, it is hard to know whether an assailant who claims to be a police officer is actually part of NYPD. In 2016, a traffic agent posing as an NYPD officer assaulted two sex workers after flashing a badge, and was charged in 2016 with sexual abuse and criminal impersonation.
“We certainly have clients who have reported to us that someone had identified themselves as a police officer, but we don’t really know if they were police officers or they weren’t,” Latimer said. Either way, “This creates fear and mistrust.”
Informant recruitment is also common, Latimer added. “Vice teams do try to recruit women they have arrested to work as informants for them in a variety of contexts.”
“Police rely especially heavily on confidential informants to get warrants in inner city zip codes,” Natapoff said. “As a result, many individuals are likely to be informing or trying to inform at any given time. In these communities, therefore, ‘snitching’ is a fact of life.”
Activists have planned a rally for Yang on Sunday, December 17th outside of the 109th Precinct in Flushing to coincide with the international Day to End Violence Against Sex Workers. The Queens event is organized by several groups working in New York and nationally to provide assistance and support for sex workers who are incarcerated. Yang’s mother and brother say they plan to attend as well.
Yang’s death “confirmed yet again our worst fears,” Red, an organizer with the NYC contingent of Support Ho(s)e, told In Justice Today. “These police raids are deadly…. the tactics being used by law enforcement only serve to intimidate, incarcerate, deport, criminalize sex working people and in Yang’s case kill.”
“From what we can see, this is murder,” Red added. “Whether indirectly or directly, her death is on the NYPD. We had to do something.”
Since Yang’s death, women who work in the parlors on 40th Road are less visible. “The parlors are open, but no more girls stand outside,” Chu told The Appeal. “Not like previously, soliciting on the street.” Yang’s family has spoken with a few lawyers this week, and they’re eager to pursue legal action. Chu, who is facilitating the meetings, is hopeful that Yang’s death will compel the NYPD to stop massage parlor raids altogether.
“From what we can see, this is murder…. Whether indirectly or directly, her death is on the NYPD. We had to do something.”
“In the past three, five, seven years, all over Flushing and other ethnic communities, there was a dramatic increase in [sexual] services,” he said. “And yes, it did create a degenerate environment. Like, young kids and students passing by and you see them soliciting the men in the street.”
But that’s only half of the story, he continued. “It’s a life, okay? And you cannot just — ” Chu made a sharp snapping sound with his fingers.
“No matter what kind of profession or service you provide, a life is the most important thing to respect,” Chu added. “There’s a lot we need to do to improve. We want the truth, the real truth… we all have to learn something from this.”
A lawsuit filed in federal court in Manhattan alleges that one of the borough’s top judges only symbolically stepped aside from criminal cases when her husband, Michael McMahon, was elected the borough’s District Attorney in 2015. The plaintiff, a former chief clerk for Staten Island Supreme Court, claims that the judge worked behind the scenes to put cases in front of less lenient judges in order to benefit prosecutors.
In the lawsuit, former chief clerk Michael Pulizotto says that he secretly recorded hundreds of hours of conversations shortly after he began the job in 2015 — conversations that he claims show Justice Judith McMahon steering cases away from judges she deemed “defense-oriented.” After her husband announced his plans to run for district attorney, Justice McMahon formally relinquished her duties over criminal matters, which she had overseen in her capacity as an administrative judge, so as to avoid a conflict of interest. But a recording taken by Pulizotto, which was included in the lawsuit brief, captures Justice Stephen Rooney, who was put in charge of criminal court following McMahon’s reassignment, saying that McMahon was “in the criminal lane” and was making decisions about criminal cases in the courthouse.
In 2016, Justice McMahon’s husband Michael McMahon created a new section of criminal court, Part N, to focus on narcotics cases following a rise in opioid-related deaths in Staten Island. Justice McMahon found that the judge presiding over Part N offered the prosecution more favorable trials, Pulizotto’s lawsuit alleges — so she purposefully sent cases there by making drug offenses the top charge in many criminal cases. For example, the lawsuit claims that Justice McMahon sent a violent crime to the narcotics court because a joint was found in the defendant’s pocket.
In March, Pulizotto filed a complaint with the state Office of Court Administration (OCA), which oversees the state’s judges. The lawsuit alleges that OCA told Justice McMahon that Pulizotto had made the recordings, leading to retaliation from both Justice McMahon and the New York State Court Officers’ Association. He was reassigned from his position this September, following what he claims was a concerted harassment effort by the association. According to the lawsuit, association members took issue with Pulizotto’s secret recordings, and threatened Pulizotto and physically intimidated him on multiple occasions.
Members of the Court Officers Association even went so far as to put a giant inflatable rat outside of the Staten Island Supreme Court. The rat had Pulizotto’s name written on the stomach. The harassment allegations against OCA were confirmed by OCA itself, which claimed responsibility for the inflatable rat in a statement to the Staten Island Advance. “We put it up so everybody understood what he did,” Dennis Quirk, president of the New York State Court Officers Association, told the paper.
In the lawsuit, Pulizotto also claims to have observed an intoxicated white court officer calling a black court officer the “n-word” in December 2013.
The legal complaint questions whether the court truly protects constitutional rights “if countless criminal defendants have been unwittingly ‘scammed’ out of their right to a fair and impartial trial by an Administrative Judge — District Attorney team (who are also husband and wife) to avoid ‘defense-oriented judges.’”
In a statement to The Appeal, John Connors, attorney for Justice McMahon, said that his client “denies the baseless allegations contained in Mr. Pulizotto’s frivolous complaint,” and that McMahon looks forward to the complaint’s dismissal.
Many of the allegations against McMahon remain unconfirmed. But the recordings mentioned in the lawsuit, and the excerpts included in the lawsuit and reviewed by The Appeal, do show concern on the part of Justice Rooney about Justice McMahon’s involvement with criminal cases. Justice McMahon was swiftly transferred to Manhattan following the public disclosure of the allegations in September.
Pulizotto’s lawsuit calls for financial compensation for damages, reinstatement as chief clerk, and the installation of a federal monitor of the Staten Island courts system.