Queens D.A.’s Office Blasted for ‘Spiteful’ Treatment of People on Probation or Parole

On March 23, 2018, Horace, an ironworker, finished up work for the day, helping to refurbish a subway station in Astoria, Queens, and headed home to Queens Village. He made a pit stop at a mini market and was walking out when NYPD officers spotted a utility knife clipped to his pocket and stopped him. They turned out his pockets. One officer removed Horace’s blade and then replaced it on his belt, while another officer ran his name through a database. There was an old warrant out for Horace’s arrest, an apparent mistake.

The officers arrested Horace, 36, who had spent nearly three years in state prison on a felony assault conviction after an earlier jail term for drug-related offenses. Upon his release from prison in August 2015, Horace began a five-year term of post-release supervision and had kept out of trouble; his record shows no violations.

As he was booked in jail, Horace learned that he had been charged with possession of a gravity knife—based on a controversial 1950s-era statute banning sharp blades that swing open and lock with a flick of the wrist. The ban has landed thousands of New Yorkers, largely low-income people of color, in jail and prison, and was recently found by a federal judge to have “high risk of arbitrary and discriminatory enforcement.”

Horace, who asked to use only his first name to protect his identity, said he had the knife for work purposes. But that didn’t prevent the Queens district attorney from asking him to plead guilty to a misdemeanor charge that would carry 90 days in jail.

Prosecutors seem to have relied on what public defenders describe as an unforgiving practice: Initially asking most people on probation or parole who get arrested for even minor misdemeanors in Queens to plead guilty, even though doing so can violate their court-ordered supervision and land them in prison. Even if it doesn’t, defense attorneys say, the plea deal usually carries jail time, pushing people further into the criminal legal system, causing loss of employment and housing, interrupting schooling, and destabilizing their families.

Public defenders with the Legal Aid Society told The Appeal they have seen such offers dozens of times in the borough— so often that it seems like a rule.

To treat clients who are on probation or parole any differently is unfair and spiteful, and a far cry from what justice demands.

Tim Rountree Legal Aid Society

In Horace’s case, the plea offer presents a Catch-22: If he doesn’t take it, he will have to try his luck at trial, where a conviction could carry a sentence of years in prison. If he does take the deal, pleading guilty to a misdemeanor could trigger a parole violation. If he gets additional parole violations, he could easily end up back in prison. That’s in addition to the 90 days of jail time that would separate him from his wife and two children.

“Right now, I’m the sole provider for my family,” Horace said. “For me to go to jail is going to be a setback. I could be coming back home, and landing in a shelter with my family. That’s the type of situation I’m in.”

Horace is due back in court on Wednesday, when a judge is expected to rule on his defense attorney’s motion to dismiss the case altogether. Joel Schmidt, a staff attorney in Legal Aid’s Queens office who represents Horace, argued in the motion that there’s no legal basis for the disparate treatment of people on probation and parole.

Citing the American Bar Association’s prosecution standards, Schmidt wrote that “it is a basic tenet of prosecutorial ethics and fairness that ‘similarly situated defendants should be afforded equal plea agreement opportunities.’”

Tim Rountree, attorney-in-charge for Legal Aid’s criminal defense practice in Queens, agreed. “To treat clients who are on probation or parole any differently is unfair and spiteful, and a far cry from what justice demands,” Rountree said in a statement.

The Queens County DA’s office forcefully denies that such a blanket policy exists. In an email to The Appeal, James Quinn, a senior executive assistant district attorney, wrote that all plea offers are “based on an individual assessment of a particular case” and take into account the current offense as well as a defendant’s criminal history. However, Quinn added, people who are on parole or probation are more likely to be arrested than defendants who are not. The office makes “no apologies” for viewing them differently from other defendants, he wrote.

But Vincent Schiraldi, a former commissioner of the New York City Department of Probation, cautions against making sweeping assumptions about this population. “Presuming people should be incarcerated should only occur if the folks enacting such a presumption can show really strong data—and not just marginal data—that that presumption contributes to public safety,” he said. “I challenge anybody to show me data that incarcerating people on probation and parole for really low-level crimes and or technical violations improves public safety. There is no such data.”

A changing approach

Each year in New York State, roughly 12 percent of people on probation and 22 percent on parole are sent back into custody for violating the conditions of their supervision, according to the Bureau of Justice statistics.

Roughly two-thirds of those violations are minor, like missing parole-imposed curfew or failing a drug test. New York State sends the second-highest number of people back to prison for technical, or noncriminal, parole violations in the U.S., behind Illinois.

Yet there’s also a growing awareness that incarcerating parolees for minor offenses is the wrong approach to the problem. A measure to reform parole is now pending in the New York State Legislature. Among other things, it calls for “fair and timely parole” that weighs a prisoner’s actual danger to society.

“Criminal justice reform today [is] about scaling back,” notes Alexandra Natapoff, a professor of law at the University of California, Irvine and author of “Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal.” “At the very least, it’s about treating people equally so that the turnstile jumper is treated as a turnstile jumper, based on turnstile jumping law, not on the number of times he or she has been in the system.”

But Queens, where District Attorney Richard Brown has served for 28 years, seems reluctant to change its ways. (Brown will retire next year, after voters choose a new DA in the fall.)

Quinn acknowledges that the first offer made to people on parole or probation “very often” requires them to plea to the charge, but he told The Appeal that the majority of parolee and probationer cases are resolved without jail time.

In 2018, approximately 585 people on parole were charged with misdemeanors in Queens County, according to the DA’s office. Roughly 36 percent of them ultimately pleaded guilty to a misdemeanor, while the rest pleaded to lesser offenses such as traffic infractions or other violations. Last year, 52 parole and probation cases were conditionally adjourned if the defendant stayed out of trouble and 125 cases were dismissed by a judge or dropped by the DA after further investigation.

I had been living right and exact—I became a law-abiding citizen the day I stepped out of prison, you know, and got that second chance.

Isa former parolee

Joshua Mandell, head of the office’s intake bureau, said parole and probation cases are handled with care. “Every single day I speak to—I can’t even count how many—defense attorneys, and we make individual adjustments when appropriate to those cases,” Mandell said in a phone interview. “We did it today, we did it yesterday. We do it all the time.”

Schmidt and other Legal Aid attorneys said that description doesn’t jibe with what they have experienced. “We know there are exceptions to the rule, but in my experience, the exception is just that—the exception,” Schmidt said. Even when assistant DAs extend noncriminal plea offers that carry sentences of community service, he said, the amount of service has been so voluminous that defendants can lose jobs, housing, or custody of their children trying to fulfill the sentence.

Two other Legal Aid attorneys who spoke to The Appeal said they often encourage their clients to push for a better bargain rather than accept unreasonable plea offers, even though clients may be tempted to do so just to get out of jail or to resolve their cases. Sometimes, clients take the offer despite their attorneys’ advice.

One lawyer cited the case of a parolee who had allegedly stolen three or four Gillette razors and shaving cream from a Rite Aid store in Queens. Although the store got back all of the merchandise, the defendant was asked to plea to petit larceny, a deal the attorney encouraged him to reject. But after two months in jail on Rikers Island, the defendant opted to take the Queens DA’s plea deal even though it meant he would serve out the rest of his parole behind bars. He spent nearly a year at a prison in upstate New York.

‘It broke me down’

During the early-morning rush hour on Oct. 12, 2018, Isa hopped out of a Nissan sedan, on the Grand Central Parkway near Francis Lewis Boulevard in Queens. He had just been in a collision.

Isa struck a Toyota at roughly 6:30 a.m., according to state court documents. The driver had suddenly veered into his lane, said Isa, who asked that only his first name be used to protect his identity. The driver, a woman, had two child passengers, a boy and a girl, in the backseat. Although Isa described the collision as minor and swore in an affidavit that the driver never requested his insurance information, he later got an alarming call from a colleague at his construction job. A detective with the NYPD was looking for him, saying he had fled the scene of a collision and injured a child.

It turned out that the driver of the other car had taken her 7-year-old daughter to a hospital after the accident to treat a back injury. The Appeal could not reach the woman for comment, but she told police that Isa had not given her his driver’s license or insurance information. Believing he could clear up any misunderstandings, Isa went voluntarily into a Queens police station without a lawyer. He met with a detective and, after waiving his Miranda rights, gave police a written statement confirming some of the details of the other driver’s story.

The last thing the Staten Island native needed was for the accident to become a criminal matter. For one, the sedan Isa drove belonged to his boss at a Brooklyn construction company where he had worked on home remodeling. It had been his second or third job since spending 29 months in state prison for felony second-degree burglary. Isa was released from Ulster Correctional Facility in Napanoch, New York, on March 3, 2016. At the time of the parkway collision, he had only five months left until he finished a mandated three years on supervised parole. The 35-year-old father of four dreamed of moving beyond physically taxing construction work, so he was taking classes on Long Island to become certified as an electrician’s assistant.

On Nov. 18, Isa was booked in jail on misdemeanor charges of endangering the welfare of a child and leaving the scene of an accident without reporting an injury. He spent a night in jail before appearing at the Queens County Courthouse, where he was assigned to Schmidt, the Legal Aid Society attorney. Schmidt said the government requested that Isa pay $10,000 in bail before he argued vociferously for his client’s release on his own recognizance.

As he had done with other clients, Schmidt filed a motion in January to dismiss the case on the grounds that it was handled more harshly simply because Isa was on parole.

As Isa waited two months for the judge’s decision on his attorney’s motion, just having the allegations hanging over his head introduced instability into his life. In light of the serious charges, the New York Department of Corrections and Community Supervision required Isa to check in at a parole supervision center every week, instead of once every two months. The hours-long visits to parole disrupted his regular attendance at the electrician classes, and Isa was laid off from the Brooklyn construction company. Although he found another job, the parole visits limited the number of hours he could work.

Up until the collision, Isa had managed to go his entire parole without a violation or an arrest, he said, and even took the steps necessary to get his voting rights restored. “I told myself I would never put myself in another predicament,” Isa said. “I had been living right and exact—I became a law-abiding citizen the day I stepped out of prison, you know, and got that second chance. It broke me down a bit.”

On March 7, Isa and Schmidt returned to the Queens County Courthouse to learn the judge’s decision on their motion to dismiss. Minutes before the judge issued the decision, Schmidt said, the assistant DA urged Isa to plead guilty and accept 90 days in jail. Just days earlier, on March 1, Isa had finished his three-year parole. But the DA’s offer didn’t change, Schmidt said.

Judge Karina Alomar dismissed Isa’s case. She agreed with Schmidt that prosecutors failed to make credible accusations that Isa recklessly drove his former boss’s sedan into the other driver’s car. Isa had checked for signs of injuries to passengers before driving away from the scene, Alomar wrote in the decision.

When he heard the decision, Isa said he felt like leaping into Schmidt’s arms. Schmidt was also pleased with the ruling, but he said he wished Alomar had also ruled on his argument against the office’s broader approach to people on probation and parole.

There are still several Legal Aid clients with pending cases who could benefit from the court establishing a precedent, Schmidt said.

A push for change

This is exactly the kind of pattern many of the seven candidates campaigning to be the next Queen County DA are vying to change. Nearly all have vowed to minimize the use of jail as a punishment for misdemeanors.

“We have to move away from that model,” Mina Malik, the former commissioner of New York’s Civilian Complaint Review Board, told The Appeal. “I would direct prosecutors to limit collateral consequences, as much as possible, and take a holistic approach to the case, because I think that’s what we’re supposed to be doing in terms of probation and parole.”

Rory Lancman, the New York City councilmember for the 24th district of Queens, and Melinda Katz, the borough president and a former city councilmember, both said a person’s status as a parolee or probationer shouldn’t dictate his or her treatment in court.

If you don’t make this man [a fair plea] offer and he goes to jail, you take away his sobriety, you take away his housing, you take away the relationships that root him in his community.

Tiffany Cabán candidate for Queens DA

Jose Nieves, a former deputy chief in the office of the New York state attorney general, said that, if elected, he would work with defense attorneys to ensure fair decisions on cases like these. “That requires a partnership between us and defense, as to say bring us the facts of your client, not just the facts of the case,” he said.

Greg Lasak, a former New York State Supreme Court judge who worked in the Queens County DA’s office for 25 years, said he doesn’t remember a specific policy that governed people on parole or probation. If elected, Lasak said he intends to limit the number of parolees “caught up in the system.”

Tiffany Cabán, a Manhattan public defender, said she recently represented a parolee in treatment for addiction who was arrested for fare evasion and faced a charge that would violate his parole. “I said to the DA, ‘What are your goals here? Because if you don’t make this man [a fair plea] offer and he goes to jail, you take away his sobriety, you take away his housing, you take away the relationships that root him in his community, then you throw them back out on the street and ask him to recidivate in more serious ways than a $2.75 fare,” Cabán said.

Whoever emerges as the next DA has to restore a culture of compassion for parolees and probationers, especially those who’ve made minor mistakes but tried to change their lives, said Isa, the aspiring electrician in Queens.

“Right now, the DA, they don’t care,” Isa said. “They’re not looking at you like a human being. They’re like, ‘This is business. And that’s it. Call the next number.’ But something needs to change, for real.”