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NYPD is one delete button away from losing its civil forfeiture records

Criminal charges are absent from 85 percent of all forfeiture cases in the city.


NYPD is one delete button away from losing its civil forfeiture records

Criminal charges are absent from 85 percent of all forfeiture cases in the city.

On Tuesday, an attorney for New York City revealed that the New York Police Department, the biggest police department in the country, is operating without a backup storage system for its database of civil asset forfeitures. NYPD records of cash and property — reportedly worth millions — could therefore be lost with the drop of a hat.

Civil asset forfeiture is a process in which officers seize items of value — cash, cars, cell phones, jewelry, and more — from people who haven’t been convicted of a criminal offense. Police argue that the belongings in question are possibly related to a crime, or located in the proximity of people who are accused or suspected of committing a crime. But in many cases, the property owners haven’t been arrested or charged with a criminal offense, let alone convicted of one. Every state has its own policies that govern what can be seized and when, and dictates what owners must to do to obtain what was taken from them, but few people have the financial means or resources to fight for their valuables. Forfeiture ultimately occurs when ownership of seized assets is transferred to the law enforcement agencies who collected them. Sometimes people have no choice but to relinquish their belongings, because the items in question are dubbed evidence by law enforcement.

The process is widely known as policing for profit.

In 2014, an organization of public defenders called the Bronx Defenders submitted a Freedom of Information Law Request to better understand the NYPD’s civil asset forfeiture program. The organization asked for the value of seized property and cash, as well as a break-down of how the money gleaned from forfeited assets is ultimately distributed. The organization sued the NYPD two years later, stating the “NYPD did not disclose the records sought, claim specific exemptions to disclosure, or certify that, after making a diligent search, it had determined that it does not possess the requested records.” Representing the NYPD in court Tuesday, City Attorney Neil Giovanatti said there is no way for the police to pull that information, but also disclosed that there is no back-up system for the $25.5 million-dollar tool used to track property and evidence. That admission shocked Manhattan Supreme Court Judge Arlene Bluth, who called the absence of a plan B “insane” and worthy of an New York Times exposé.

“Judge Bluth is right to be skeptical about the city attorney’s the-dog-ate-my-homework excuse,” Lee McGrath, senior legislative counsel for the Institute for Justice, told In Justice Today. The Institute tracks state-level forfeiture trends and champions reform. “New York City’s Police Department is famous for its data-driven policing. It should apply the same rigor to its own operations, particularly when the conflict of interest from its keeping forfeited property is so obvious.”

So who would bare the brunt of such a major loss? Poor New Yorkers struggling to retrieve what is rightfully theirs would suffer, but “the truth stands to lose the most,” McGrath said. “It is likely that the data would reveal exactly how NYC police are using forfeiture.”

Law enforcement agencies justify civil forfeiture as a critical tool to combat large-scale drug trafficking and heavy hitters in the drug trade. In reality, the vast majority of seizures and forfeitures involve poor people of color who have no involvement with cartels or the global drug market. Police departments and district attorneys rack up anywhere from hundreds to millions of dollars in forfeiture profits by shaking down poor people of color for small dollar amounts and property — not big-time drug dealers shuffling large sums of money across state lines. Because they haven’t officially been charged with a crime, property owners aren’t entitled to an attorney who will help them fight for what is theirs. In general, they are also too poor to enlist the help of a private lawyer, and bureaucratic hurdles to retrieve property also benefit law enforcement.

Civil asset forfeiture in New York City, which hasn’t rewritten its administrative code that dictates forfeiture policy since 1881, is no exception. The NYPD’s forfeiture program is portrayed as a public safety imperative, but criminal charges are absent from 85 percent of all forfeiture cases in the city.

In 2016, the Bronx Defenders filed a class action lawsuit against the city. “We often represent low-income people whose phones and cash wages have been confiscated and spend months trying to get their money back after their case is over,” Molly Kovel, former legal director of the organization’s Civil Action Practice, said of the lawsuit. “For people without access to an attorney, the hurdles they face to get their property back are simply too high, and they often give up. We hope this case leads to much-needed reform.”

If forfeiture records are lost, so too is proof that the NYPD is policing for profit, McGrath says.

How to Make Change Happen

How to Make Change Happen

I am going to switch it up today. Instead of giving you this week’s stories of horrible injustice, which Lord knows there is a long list of those stories to tell this week, I want us to have a serious conversation about how we make change happen in this country.

As I reflect back on the past three years, I think I can squeeze dozens of important lessons that I learned down to one essential lesson — which is this — awareness and action are not the same thing. Making people aware of our problems is important, vital work, but awareness of a problem and solving that problem are not the same.

We’ve mastered awareness, but what I’ve learned is that people in power are willing to be painfully aware of police brutality, painfully aware of white supremacy, painfully aware of a prison industrial complex, abundantly clear about inequality and bigotry and racism — and still do absolutely nothing about it.

Politicians and lawmakers are willing to watch us take us a knee, watch us march, watch us picket and protest — and wait us out. They are willing and prepared to outlast us — and, in most cases, to do absolutely nothing about the problems we highlight and amplify.

Don’t get me wrong. I love social media, and it is an important part of how we make change happen. But we can’t retweet ourselves out of our most serious problems. We can’t Facebook share our way out of our most serious challenges. It’s just not working.

So let me tell you the four things we need to make change happen.

They’re all important, but the first one is essential, and I’ve grown to believe a significant reason why we’re stuck is because we’ve failed at this step.

The first thing we need to make change happen is a well-crafted plan. What’s our plan for change? Do you know it? Where can I find it? Can you share it with me? Do your friends and family members know it?

Here’s what I’ve learned about why we need to craft and communicate careful plans:

Whatever our plans are to combat police brutality and reform the criminal justice system, people sure as hell don’t know them. I just spoke at UC Davis outside of Sacramento this week and when I travel and speak across the country, and ask people if they can tell me what the local plan is to combat injustice and police brutality in their town, they usually have no idea. Sometimes they can tell me a few heartbreaking stories of injustice, but it’s a rare day when I ask people what the plan is that they reply with an informed answer. I’m not criticizing them! I’m criticizing us. If the people aren’t aware of the basic plans for change, we’ve failed.

To be clear, our movement has diagnosed the problems, we’ve even proposed solutions, but we’ve done a bad job at informing people of how we get from where we are to where we need to be.

And that’s a problem. Plans are only as effective as the ability for everyday people to repeat them back to you. The people don’t know our plans. They have not adopted them as their own. We won’t have change until we fix this.

Which leads me to the second thing we need — we need people. We need organized people who are on board with our well-crafted plans. What I’m finding is that even some of our most conscious, informed, woke men and women, have a desire for change, but aren’t really clear on what that means for them. We have to get to the point where our people and our plans are fully and completely merged. Too often, we rally people, and make them aware of problems, but fail to get them on board for well-crafted plans.

Yes, the more people you can have on board, the better, but I’m increasingly convinced that 50 organized people who are fully and completely on board for a well-crafted plan can get more done than 50,000 people who want change in an esoteric way, but have no real idea what that means for them.

You need a plan, you need people, and the third thing you need to make change happen is energy. Sometimes I use the word momentum. People have to be motivated and energized and prepared to fight for the change we want to see. People with momentum can get so much done. Momentum is easy to lose and almost impossible to fake. My theory on momentum is that the best way to produce it is through small, hard fought victories that lead to bigger battles, and bigger wins. Winning builds momentum. But here’s the thing — winning takes a well-crafted plan and an organized team. When we fight without those things we lose — which kills our energy and destroys any hopes for momentum.

And I’ll close with my final thought — it’s an important one — this modern movement, call it the Black Lives Matter Movement, or the movement to combat injustice, the movement for true equality in America — is one of the least funded movements in the history of movements. To win, we must be well-resourced. And here’s what I know — those who are mobilizing against us, be it police and prison unions, or prosecutor associations, or Trump and Sessions themselves– they are well funded — and they use that funding to lobby, organize, market, promote, fight laws, and do the hard work to make change happen. It just so happens that what they fight for (or against), quite successfully I must add, goes against the very values and ideas those of us in the justice community hold near and dear.

Let me close with this — we’re being out-organized and out-spent on the issues that matter the most. We’re losing on so many fronts not because losing is inevitable, not because we’re bound to lose, but because those who mean us harm have simply done a better job fighting for what they believe in. That’s a serious simplification of systemic injustice and inequality, but the root of it is true. The machines and mechanisms of injustice are well-crafted, well-oiled machines. To change them, we’ll have to be better — much better.

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#ByeCy: Organizers call for embattled Manhattan D.A.’s resignation

A movement to oust Cyrus Vance gains steam.

#ByeCy: Organizers call for embattled Manhattan D.A.’s resignation

A movement to oust Cyrus Vance gains steam.

Manhattan District Attorney Cyrus Vance’s failure to prosecute Harvey Weinstein, along with Donald and Ivanka Trump, scandalized many New Yorkers last week. How could the man elected to bring justice to the city’s second-most populous borough so baldly turn the other cheek to illegal activity? How could this progressive prosecutor, who on Wednesday admonished Trump for his archaic, punitive criminal justice policies, accept questionable campaign donations from lawyers representing the city’s wealthiest elites?

For many of the city’s public defenders and community organizers, these unflattering revelations were hardly a shock. Instead, the news was seen as an opportunity to draw attention to issues in the D.A.’s office that many have called out for years.

“There seems to be momentum to ask for [Vance’s] resignation, and people from a wide swath of political backgrounds are outraged,” says Zohra Ahmed, a member of the public defender coalition 5 Borough Defenders, a group that challenges what they call “injustices of the criminal legal system.”

On Thursday, the 5 Borough Defenders and three other community-based organizations are hosting a rally at one of Vance’s two downtown Manhattan offices to say “#ByeCy.” Ahmed and her fellow organizers are calling for his resignation, and hope to spark a broader conversation about what it means to be a “progressive” prosecutor. Vance is running unopposed in the Nov. 7th election, making his third term almost inevitable. (Marc Fliedner, a former prosecutor who lost in the primaries for Brooklyn D.A., is running as a write incandidate in the Manhattan race, but is not endorsed by the #ByeCy coalition.)

In addition to asking Vance to step down, the rally organizers hope to draw attention to a list of ten issues that they say make him unfit to be D.A. Chief among those is what they say are the D.A.’s disparate charging practices.

“What we’re hoping to bring to bear is the discrepancy between the charging decisions made about people like Weinstein and the Trumps, and the vast majority of defendants who are indigent,” Ahmed tells In Justice Today. “The revelations really highlight a two-tiered system of justice.”

One of the clearest examples of that two-tiered justice system is a policy that is not isolated to New York City: the D.A.’s use of cash bail. Hundreds of thousands of people across the country are in jail on any given day because they can’t pay their bail. Of the 646,000 people held in local jails nationally, 70 percent have not been convicted of a crime and are being held pretrial. On an average day in New York City, roughly 4,000 or slightly over half the city’s jail population is incarcerated because they’ve been unable to post bail, according to the city’s Independent Budget Office. Cash bail offers an opportunity for those who can afford it to pay for their freedom, while the rest of the accused wait behind bars.

In August, dozens of current and former law enforcement officials, including Vance, signed a friend-of-the-court brief opposing the use of cash bail for people accused of misdemeanors. The brief was filed in support of a lawsuit challenging Harris County, Texas’s cash bail practices. To Rachel Foran, managing director of the Brooklyn Community Bail Fund, Vance’s choice to sign the brief is curious in light of what’s happening in his own office. Since he signed, Foran says her organization has bailed out 125 misdemeanor defendants in Manhattan.

“He is calling for the end of money bail in a different state, and yet his office is continually requesting high and low amounts of bail for folks who can’t afford it,” says Foran.

That discrepancy between what Vance says and what his office does is a driving force behind the #ByeCy initiative. It’s an issue cropping up nationally: While an increasing number of local district attorneys are running campaigns on reform-driven platforms, fewer are following through.

Given that “the main problem-solving tools a prosecutor has are prosecution and incarceration,” the notion of a prosecutor “being progressive is in itself a bit complicated,” says Ahmed. A sincerely progressive prosecutor, she continues, would “acknowledge that many issues should not be dealt with in the criminal justice system…You need prosecutors who are shrinking their own power, which is very difficult to imagine.”

Ahmed admits Vance’s voluntary resignation is unlikely. (At the time of publication, the Manhattan D.A.’s office had not responded to a request for comment.) But with all eyes on Vance, she and her cohort see this as an ideal moment to put significant public pressure on his office.

“At the very least, we’re hoping there could be a spirited democratic debate about what makes an accountable, truly progressive prosecutor,” says Ahmed. “New Yorkers all stand to benefit from pushing Cy Vance to a better position.”

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