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NYPD Agrees To New Rules Limiting Its Seizures of New Yorkers’ Property


NYPD Agrees To New Rules Limiting Its Seizures of New Yorkers’ Property

For decades, the New York Police Department has subjected people it arrests to a labyrinthine and bureaucratic process for retrieving their seized property. Often, poor New Yorkers — many without the legal assistance needed to navigate this process — give up on their property instead of trying to get it back.

In a rare disclosure to the public, the NYPD reported over $6 million in revenue in 2013 from seized cash, civil forfeiture, and property sold at auction. These documents also showed that the NYPD had a balance of more than $68 million in seized currency in any given month in 2013, meaning that it had accumulated millions over an unspecified period of time before then.

After seizing money or property, the NYPD rarely files civil forfeiture claims against individuals, but rather just lets enough time pass — 270 days — before it is considered “unclaimed,” and eventually makes its way to the NYPD’s pension fund. Currently, the NYPD has no idea how much money it has taken from New Yorkers it has arrested.

On February 9, after years of litigation, the NYPD and the Bronx district attorney finally agreed to new rules for property seizure. The settlement stemmed from a January 2016 lawsuit filed by the Bronx Defenders against the police department and the city in the Southern District of New York over what it sees as persistent theft from the city’s low-income communities.

“The settlement has far-reaching reforms that will require the NYPD and the Bronx DA to make significant changes to the way they handle these processes,” said Niji Jain, an attorney from the Bronx Defenders’ Impact Litigation Practice. “When someone is arrested, they’re supposed to get a voucher indicating what property has been taken. That wasn’t happening on a regular basis, and now as part of this settlement, the NYPD has reaffirmed their obligation to give people these vouchers and hold trainings for their officers and audits to make sure that it’s going to happen.”

The NYPD’s pattern of seizing “unclaimed” property is more common than civil forfeiture (which requires a court order) and places the onus of retrieval entirely on people who have been arrested, even if they’re never charged or convicted of a crime, by placing several bureaucratic roadblocks in their way.

“The government isn’t even affirmatively asserting a claim of civil forfeiture,” Jain said. “They’re just holding on to stuff and making it so difficult to get it back that people … give up and it gets retained permanently.”

Because of the settlement, in addition to now following through with pre-existing policies, the NYPD will make “common-sense” changes, like allowing people to use identification cards the department has seized during arrests to establish their identity as they try to retrieve their property (previously, if the NYPD had seized your wallet with your ID in it, you would have to track down a separate ID to establish your right to your own seized wallet).

One plaintiff in the lawsuit, Victor Encarnacion, was arrested in the Bronx in November 2014 (because charges against Encarnacion were dropped and the case was sealed, the Bronx Defenders, at the request of its client, would not reveal the nature of the charges). His iPhone taken by the NYPD and labeled as evidence. Six months later, after his case was dismissed by the Bronx district attorney, Encarnacion asked for his property back, but the NYPD property clerk told him he needed to get a release from the DA’s office, which repeatedly ignored his requests for one. Encarnacion only received the property release from the DA’s office after he filed the lawsuit against the NYPD, almost a year after his iPhone was first seized.

As part of the settlement, the Bronx DA has promised to release property immediately in cases that are dropped or resolved. New York City’s other district attorneys are not bound by the settlement, but the practice has been far more prevalent in the Bronx than in other boroughs.

Back in early 2014, in a series of articles for Gothamist, I first brought to light the NYPD’s arcane property retrieval system in the Bronx, reporting that was heavily referenced in an ongoing Freedom of Information lawsuit by the Bronx Defenders against the NYPD, seeking disclosure of just how much money and property the NYPD has seized during arrests.

Last fall, the New York City Council passed a law mandating that the NYPD provide annual reports on the amount of property it seizes each year. The first report is due in September 2018.

The Biggest Winners in Trump Budget: The DEA and the War on Drugs

Scott Olson / Getty

The Biggest Winners in Trump Budget: The DEA and the War on Drugs

President Trump’s 2019 budget proposal, released Monday, requests nearly $30 billion for drug control. The majority of that funding is slated for law enforcement and an $18 billion border wall, with the purported dual purpose of stopping the flow of immigrants and illicit drugs from entering the country.

The budget requests $2.2 billion in funding for the Drug Enforcement Administration, $400 million more than two years ago. Both the immigration and DEA funding are meant to attack the supply side of illegal drug trafficking. On the demand side, the budget requests $625 million for addressing the opioid crisis in the most affected states and $50 million to expand access to the overdose reversal drug naloxone.

Public health policy experts and others closely following the deadly opioid crisis told In Justice Today that Trump’s proposed budget heavily prioritizes law enforcement drug interdiction, and other front-end interventions while vastly underfunding substance abuse treatment.

“The president’s budget proposal sends a message that his primary response to the crisis is based on the 1980s and 1990s drug war playbook,” Leo Beletsky, associate professor of law and health sciences at Northeastern University in Boston, told In Justice Today.

Dr. Daniel Ciccarone, a physician and professor at the University of California San Francisco, where he studies America’s heroin supply, described the president’s budget proposal as “sad,” and as having “misaligned priorities.”

Diane Goldstein, retired lieutenant commander of the Redondo Beach Police Department and a board member of Law Enforcement Action Partnership, said the administration’s approach is dangerous. Putting “emphasis on an already failed enforcement, whack-a-mole strategy that will only result in more death, disease and addiction,” she said.

Critics like these hoped to see more funding in the budget reserved for public health and harm reduction interventions that have demonstrated their potential to reduce the country’s skyrocketing mortality rate. Thanks to the opioid crisis, life expectancy in the United States has dropped for the past two years straight, the first decline since the 1920s flu pandemic.

DEA’s Strategy for the Opioid Crisis

The Trump budget proposal comes one week after the Drug Enforcement Administration placed every illicit fentanyl analogue — potent opioids typically sold as heroin — into the Schedule I category of the Controlled Substances Act, reserved for drugs that have no medical benefit.

Emergency scheduling makes it easier for prosecutors to prove in court that illicit analogues are illegal and dangerous.

Ismail Ali, an attorney advising the Multidisciplinary Association for Psychedelic Studies (MAPS) on policy, told In Justice Today that the DEA announcement is another chapter in the agency’s long history of misusing emergency scheduling powers.

In the mid 1980s, when MDMA (also known as Ecstasy) slowly moved out of psychotherapy and into the club scene, the DEA ignored evidence from psychiatrists about its therapeutic uses and even the advice of a DEA Administrative Law Judge Francis L. Young who urged the agency to leave it in the Schedule III category, defined as “drugs with a moderate to low potential for physical and psychological dependence.”

“Any purported evidence used to justify what goes in what schedule is not really relying on scientific data,” Ali of MAPS said. “[The] DEA can’t even begin to have a conversation around what we should actually be doing to respond to the crisis — things like supervised consumption sites and heroin-assisted treatment. The dominant societal perspective is slow to accept that we should not put the moral burden on the user.”

Dr. Ciccarone of the University of California San Francisco told In Justice Today that the move to emergency schedule appeared to be unprecedented. He said he’s never seen an entire class of drugs and all its derivatives — known and unknown — banned, which speaks to how serious a threat law enforcement views fentanyl.

But he added that efforts to disrupt drug supply could be costly without yielding desired outcomes.“Every $1 spent on harm reduction and treatment leads to multiple dollars of public health and individual benefit,” he said. “We can’t be robbing those funds to pay for things like interdiction.”

“We desperately need demand-side reductions,” Ciccarone added. “Lives are at stake.”

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New Philadelphia DA Larry Krasner Hits Reset on the Office’s Troubled Conviction Review Unit

New Philadelphia DA Larry Krasner Hits Reset on the Office’s Troubled Conviction Review Unit

Philadelphia District Attorney Larry Krasner is bringing much-needed change to the city’s notoriously ineffective conviction review unit (CRU). The district attorney’s office confirmed to The Appeal that Patricia Cummings, former head of the Dallas County district attorney’s conviction integrity unit, has joined the Philadelphia DA to lead the the office’s review of old cases for evidence of wrongful convictions.

Cummings — a former defense lawyer, prosecutor and lecturer at the University of Texas at Austin School of Law — took over the position on February 1 and is nationally recognized for her work on behalf of the falsely imprisoned.

“Patricia is one of the top experts in the country on innocence and exoneration,” said Krasner’s spokesperson, Ben Waxman. “She has a tremendous record of standing for justice throughout her career. Larry is thrilled that she has joined the office and he expects her to make a huge impact in her new role. “

Cummings takes the helm of an office that has been dogged by criticism for being a conviction review unit in name only. For three years following its establishment in April 2014, the CRU was part of the DA’s Post Conviction Relief Act (PCRA) unit, which represents the Commonwealth of Pennsylvania in the appeals process. This caused criminal justice advocates to question its independence and its commitment to pursuing just outcomes.

During that period, it had just one part-time staff member — veteran homicide prosecutor Mark Gilson. His office considered dozens of petitions but did not oversee a single exoneration until 2016. In one case, Gilson even pursued the retrial of an inmate, Anthony Wright, whose murder conviction had been thrown out based on exculpatory DNA evidence.

Gilson was one of 31 old-guard prosecutors fired by Krasner just days after he took office.

Last year, former DA Seth Williams (who was given a five-year sentence on federal bribery charges in late 2017) announced changes to the CRU, including separating it from the PCRA unit and adding three additional full-time staffers. However, under Williams’ direction, the unit limited itself to cases based only on inmate innocence, refusing to hear those in which procedural misconduct played a role in convictions.

Dallas County is credited with launching the nation’s first conviction integrity unit, in 2007, and to date has overseen 28 exonerations, according to the National Registry of Exonerations. Philadelphia’s CRU has handled just four in the past four years.

According to a published biography, Cummings worked in Williamson County, Texas, as a prosecutor of juvenile offenders before transitioning into criminal defense.

Prior to taking over Dallas’ conviction integrity unit in 2015, Cummings was perhaps best known for her successful effort to free Michael Morton, who was released from prison in 2011 after nearly 25 years, when DNA evidence cleared him in the murder of his wife. She was instrumental in getting a law passed in Texas, known as the Michael Morton Act, that requires prosecutors to open their files to defendants and keep records of the evidence they disclose.

Cummings has remarked publicly on the need to revisit convictions based on flawed forensic techniques. In 2015, she helped free Steven Mark Chaney, who was convicted of murder in 1987 based on now discredited bite-mark analysis.

She has also spoken of the responsibility of prosecutors to review cases in which innocence is not the primary consideration.

“There may be sometimes you’ve convicted somebody and it was wrong,” she told the Dallas Morning News in 2015. “You may not be able to prove that they’re innocent, but that doesn’t necessarily mean they don’t deserve the relief. It doesn’t necessarily mean that we don’t try to correct the wrong.”

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