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#SwipeItForward & the Decriminalization of Farebeating in New York City

Activists in New York City are engaging in profound acts of resistance against over-policing in the subways. Politicians are listening, but are they really hearing them?

#SwipeItForward & the Decriminalization of Farebeating in New York City

Activists in New York City are engaging in profound acts of resistance against over-policing in the subways. Politicians are listening, but are they really hearing them?

If you are a New Yorker who commutes by subway, perhaps you have seen them in the last two years: activists gathering at subways stations and offering free Metrocard swipes as people approach the turnstiles. As they “Swipe It Forward” in neighborhoods with high concentrations of people of color and immigrants, these members of a coalition of grassroots groups hand out flyers about broken windows & quality-of-life policing, drawing attention to the widespread use of arrests, summonses, and criminal prosecutions against people of color for turnstile jumping, walking through exit gates, and other methods of taking public transportation without paying the $2.75 fare.

Swiping It Forward is legal. The terms of service of an unlimited Metrocard do not preclude swiping someone else in after your own trip is finished. And therein lies the profound power of the practice: through a legal act of kindness, communities of color engage in direct resistance to New York Police Department (NYPD) practices by removing the legal justification for a police officer to stop, search, ticket, or arrest a poor New Yorker who has entered the subway without paying.

After the declared end of stop-and-frisk in 2014 with the election of Mayor Bill de Blasio, the primary mechanism of police contact with poor and minority New Yorkers is through targeted arrests for low-level quality-of-life offenses like turnstile jumping, or theft of services, a misdemeanor punishable by up to a year in jail. In 2016 alone, there were almost 27,000 NYPD arrests for theft of services, almost 92 percent of which were of people of color. Theft of services is the second-most common charge at both arrest and criminal court arraignment throughout New York City, and can lead not only to up to a year in prison, but also to possible deportation and other collateral consequences.

But even if an arrest does not lead to a ticket or prosecution, the NYPD practice of staking out subways stations (often by hiding behind polls or doors) allows them to stop, frisk, and search people who enter without paying, potentially leading to the use of force as well. According to a report from the Inspector General for the NYPD, quality-of-life summonses and arrests are concentrated in precincts with higher proportions of residents of color, males aged 15–10, and residents of public housing. In short, quality-of-life policing provides constitutional cover to the mass policing of people of color in New York City.

Swiping It Forward takes away this power, if only temporarily. Without probable cause to believe a crime such as theft of services has occurred, a police officer cannot constitutionally stop, frisk, or search someone. I have written about the ways in which such communal acts of intervention can change the power dynamics between the police and poor people of color. Like mass bailouts or organized cop-watching, the practice of Swiping It Forward is a form of democratic intervention in everyday criminal justice from the bottom up. The intention of these movement actors is not simply to help individuals get on the subway without paying, but also to disrupt the normalcy of arrests. The practice lays bare the ways in which those arrests function to perpetuate structural inequalities along lines of race and class. Even the motto of #SwipeItForward — “If you See Someone, Swipe Someone” — reclaims the power of ordinary people to help each other: here, not by reporting suspicious people to the police (the purpose of the MTA’s slogan “If you See Something, Say Something”), but rather by taking away the ability of the police to stop and arrest people in the first place. As one activist explains, “The beauty of this action is that the cops can’t do anything about it . . . it’s still resistance, but it’s within the law, so they’re just stuck.”

Politicians have responded to these acts of resistance. The summer of 2017 has seen a series of mixed reactions to the growing discontent with the criminalization of farebeating in New York City. Manhattan District Attorney Cy Vance and Brooklyn Acting District Attorney Eric Gonzalez have both announced that they will stop prosecuting many theft of services cases in criminal court. And two state lawmakers from Brooklyn have announced their intention to introduce legislation in Albany that will make farebeating a non-criminal offense punishable by a $100 fine. (Specifically, they would remove subways, buses, and railroads from the current theft of services statute, leaving in place the existing civil offense.) As State Senator Jesse Hamilton stated in a report released in conjunction with the announcement, “criminal records and jail time should not be the result of an inability to pay a transit fare.”

But will these responses truly change the criminalization of poverty in New York City? The activists from the Coalition to End Broken Windows, the co-organizers of #SwipeItForward, think not. They are frustrated that the District Attorney proposals would maintain state supervision and punishment of poor people for their inability to pay subway fares, through either civil summonses or “diversion” programs. Under Vance’s plan, for instance, the office will only charge people with theft of services if “there is a demonstrated public safety reason to do so,” and otherwise will offer those arrested for theft of services “pre-arraignment intervention opportunities,” including arts-based programs for youth. What local District Attorneys have not proposed, though, is simply declining to prosecute such arrests without required programs, fines, or interventions.

Activists also feel that the proposed state legislation to decriminalize farebeating does not go far enough. In a press release following the announcement from State Senator Hamilton, the Coalition to End Broken Windows said, “While ‘decriminalization’ is a sounder step than what city officials have offered, the Coalition rejects the notion that summonses or other non-arrest alternatives are an acceptable outcome to the issues that plague working people: thousands of us literally cannot afford public transportation.” (The Community Service Society of New York recently documented the struggles of the working poor to afford rising subway fares.) These grassroots groups who #SwipeItForward wonder: why not simply stop arresting poor people for their inability to pay?

Indeed, the proposed partial decriminalization of misdemeanors envisioned by District Attorney Vance, State Senator Hamilton, and others has a dark side: as Professor Alexandra Natapoff has argued, it can lead to a net-widening effect in which police feel free to arrest more poor people of color because they know that those arrests will not lead to jail or a criminal conviction. According to Natapoff, “decriminalization offers ways of maintaining, even expanding, the criminal system as a governance mechanism for a wide range of social behaviors and environments.” Of course, neither the state senate nor local district attorneys control the NYPD. And Mayor de Blasio, for his part, has doubled down on the criminalization of farebeating, declaring that “there’s no way in hell anyone should be evading the fare.” But in neither the proposed state legislation nor the new district attorney policies is even the suggestion that New York City should not use city resources to stop, detain, and process individuals for taking the subway without paying.

There is another approach, one that grassroots groups such as those that make up the Coalition to End Broken Windows are helping make visible. Instead of spending city dollars on stakeouts at subways entrances, we could instead invest in the futures of these same neighborhoods through other government services: free Metrocards for low-income New Yorkers, more public housing, better public education. This “Invest/Divest” strategy is echoed throughout the country by grassroots groups led by people of color demanding a transformation in how local governments prioritize spending in their neighborhoods. And meanwhile, in New York City, activists continue to #SwipeItForward, pushing us all that much closer to hearing their call to end the criminalization of poverty in New York City.

The views and opinions expressed in this article are mine and do not necessarily reflect the views of the Fair Punishment Project.

Life sentence thrown out for Wyoming juvenile over prosecutor objections

Wyoming Supreme Court
Wikimedia Commons

Life sentence thrown out for Wyoming juvenile over prosecutor objections

The Wyoming Supreme Court threw out a lengthy sentence imposed on a teenager who was only 16 when he shot and killed another teenager.

Phillip Sam, who is now 18, was convicted of first degree murder and 12 counts of assault for the 2014 shooting of Tyler Burns. Sam was given an aggregate sentence that meant he was not not eligible for parole review until he was 70.

The U.S. Supreme Court previously held in Miller v. Alabama that automatic sentences of life without the possibility of parole for juveniles convicted of murder were unconstitutional. The Court in Miller allowed for such sentences only if the sentencing judge “[took] into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” The Court later emphasized that such sentences could only be imposed on “the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.”

The first question for the Wyoming Supreme Court in Sam’s case was whether a chance for release in his 70s was the equivalent of a “lifetime in prison.”

The prosecution argued that Sam still had a chance at freedom.

The Wyoming Supreme Court rejected that argument.

Wyoming Supreme Court Justice Kate Fox, writing for the majority, held that that “[t]he prospect of geriatric release . . . does not provide a meaningful opportunity to demonstrate the maturity and rehabilitation required to obtain release and reenter society,” as required by the U.S. Supreme Court’s holdings.

Because Sam’s sentence was the practical equivalent of a life without parole sentence, Fox wrote, the trial court would have to have found that Sam was the rare exception of a juvenile whose “permanent incorrigibility” justified such an outcome. But because the trial court at sentencing “made the determination that Mr. Sam is not a juvenile so irredeemable that he deserves incarceration for the rest of his life,” the court held that the sentence he received violated the Eighth Amendment of the U.S. Constitution.

Sandburg disagreed with the Wyoming Supreme Court’s ruling and said the trial court had, in fact, considered all relevant factors before handing down the sentence.

“I think ultimately the court could do exactly what it did again,” Sandburg said.

Thanks to Jake Sussman.

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Democratic candidates debate ahead of Brooklyn DA primary elections

Democratic candidates debate ahead of Brooklyn DA primary elections

Candidates sparred last month at a political forum hosted by VOCAL-NY in the race to become Brooklyn’s next District Attorney. The debate allowed community members to question candidates on myriad criminal justice issues, from wrongful convictions to protecting immigrants from deportation. According to recent polling, Eric Gonzalez, acting-District Attorney since Ken Thompson’s death in October 2016, leads the polls at 19 percent, with Vincent Gentile and Marc Fliedner trailing him at 14 percent and 10 percent, respectively. Ama DwimohAnne Swern, and Patricia Gatling are each polling at less than 10 percent. Meanwhile, around 40 percent of those polled said they were undecided about who to vote for in the September 12 primary.

The next forum will be tonight, August 29, during which candidates will specifically focus on police and criminal justice reform.

Here’s a recap on what we heard from the candidates last month. (Gatling was unable to attend last month’s forum.)

The Candidates

Marc Fliedner, the former chief of the Civil Rights Bureau under Thompson and the only openly gay candidate, opened the debate by immediately accusing acting-DA Gonzalez of corruption.

“You cannot vote for acting District Attorney Eric Gonzalez,” Fliedner said, asserting that Gonzalez has “committed more acts exhibiting a disregard for the rule of law, a lack of respect for victims, and out and out acts of corruption.” Fliedner also cited an example of Gonzalez refusing to prosecute a case because he is “political cronies” with the brother of the person who would be charged.

Gonzalez, who was recently endorsed by the Police Benevolent Association, said he believed he could end mass incarceration while continuing to keep cities safe. Gonzalez also said he wanted to reduce reliance on cash bail, continue to root out wrongful convictions, and protect immigrants.

Meanwhile, Anne Swern, who worked in the Brooklyn District Attorney’s office for 33 years and later as managing counsel for the Brooklyn Defender Services, reminded the crowd that the District Attorney wields the “most power” and discretion of any other actor in the criminal justice system. Swern said her experience on both sides of the courtroom gave her a unique perspective. Swern also said she would hire a statistician in her office to determine how the office’s actions and policies disproportionately affect people of color.

Vincent Gentile, a former Queens Assistant District Attorney and elected official, posited that he was the only candidate who had experience as both a prosecutor and politician at the state and local levels. Gentile also said that he is in a unique position to uncover wrongful convictions because he is the only former prosecutor not to have worked in the Brooklyn District Attorney’s Office. Gentile insisted that the office needed to address the ongoing opiate crisis in Brooklyn, which he said has caused more deaths than car collisions and homicides combined.

Ama Dwimoh, who worked as an Assistant District Attorney in Brooklyn for 21 years, prided herself on her past work on behalf of “voiceless” child victims by founding the first Crimes Against Children Bureau in the DA’s office in 1997. She said she left the District Attorney’s office in 2010 because her values differed from then-District Attorney Charles Hynes.

Wrongful Convictions

The moderator opened the debate by discussing last month’s exoneration of Jabbar Washington, who spent 23 years in prison. Washington was ultimately released because the Brooklyn District Attorney’s Office had failed to disclose that a key witness later confessed that she actually recognized Washington from the building she lived in — and not as the perpetrator of the crime. The moderator asked whether the candidates supported Brooklyn Borough President Eric Adam’s five-point plan to create an independent state commission to investigate and identify all of the players, including prosecutors, who were responsible for wrongful convictions.

All candidates agreed that they would support the commission, with Dwimoh emphasizing that she would “without a doubt,” Gentile stating “absolutely,” and Swern saying it is “really important,” and that her focus would extend beyond prosecutors to investigators, paralegals, and other actors in the office.

Gonzalez, however, sought to clarify that the commission’s scope was statewide and not necessarily focused on Brooklyn specifically. Gonzalez also emphasized that not a single wrongful conviction from the office could be associated with him. Gonzalez said he would be “very committed” to working with the commission, reminding listeners that his work in the Conviction Review Unit (CRU) began under Ken Thompson in 2014, and that the unit’s work has led to the uncovering of 23 wrongful convictions.

Gentile, Dwimoh, and Fliedner shot back at Gonzalez, asserting that the CRU’s work lacked transparency and noting that the investigations have failed to identify the systematic flaws that led to the miscarriages of justice. Gonzalez responded that his office regularly discusses those underlying causes, but Fliedner then cited a recent example of a man who waited 9 months in jail before the prosecutor finally disclosed an exculpatory 911 call, which led to the dismiss of the case.

Closure of Rikers Island

A former defense attorney asked the candidates what policies they would implement to ensure the speediest closure of Rikers Island, New York City’s main jail complex that has been the focus of intense criticism. Most candidates deflected on the actual logistics of closing the complex and instead offered potential ways to reduce the city’s jail population.

Gentile cited the case of Kalief Browder as proof that the jail facility was “not working” and suggested that judges should know the financial status of defendants before they set bail.

Swern lambasted prosecutors for offering non-jail plea deals but then later seeking bail if those plea offers were rejected. Swern also stated that she would push the office to not overcharge (which leads higher bail amounts), reform discovery rules to engender “honest conversations” between prosecutors and defense attorneys, and use alternative sentencing programs, such as drug and mental health treatment, to their “full capacity.”

Fliedner remarked that he would not prosecute the “litany of broken windows” offenses, which he called “survival offenses.” Dwimoh went further, stating that she would “send home all misdemeanor defendants” under an expanded pretrial supervision program. She emphasized that pretrial detention does not reduce recidivism.

Gonzalez promised that he would be fair and only ask for bail when it’s necessary, noting that Brooklyn sets the lowest bail in the city. Swern shot back, stating that although Brooklyn has historically set lower bail, the District Attorney must “go further” to close Rikers Island.

Bail Reform

A community member stated that he had been tricked into going to a police station for an interview to tell his side of the story in a family dispute, but was instead immediately handcuffed, arrested, and spent the night in jail. He said that even though he had never missed a court date, the prosecutor asked for $3,000 bail, and the court eventually set it at $1,000. The man could not afford to post his own bail and said the Brooklyn Community Bail Fund posted it on his behalf — making him one of over 2,000 other people who have benefited from the fund’s services. He asked whether the candidates could commit to not seeking bail amounts that people could not afford.

All candidates agreed that bail reform was necessary, but Dwimoh and Fliedner took the strongest positions supporting the elimination of cash bail for low-level offenses. Dwimoh also said she would expand pre-trial supervision to reduce the system’s reliance on bail.

Swern stated that she would support legislation that would increase the cap on the Brooklyn Community Bail Fund, which stands at $2,000. She also noted that people return to court when they are given a Metrocard and reminded of their court date.

Accountability in Police Shootings

Community members asked what the candidates would do to ensure accountability in police shooting cases. Hertencia Petersen, the aunt of Akai Gurley, a young black man who was shot in 2014 by NYPD Officer Peter Liang, accused Gonzalez of mishandling the prosecution against Liang, who ultimately received a sentence of five years probation and 800 hours of community service. Petersen praised Fliedner for being the only person in the District Attorney’s office to return her calls during the case.

Swern boasted that she took a police officer to trial in 1989 for killing a black man, which led to prison time. Swern also said she supported the creation of a bureau that would specifically investigate those cases.

Fliedner highlighted his role in prosecuting Liang and says he left the office when it chose to recommend a non-jail sentence over his objection. Fliedner criticized out the District Attorney’s office for failing to communicate openly with Gurley’s family members, lamenting that the family found out about the non-jail sentence recommendation from the media before they heard from the District Attorney’s offices.

Dwimoh agreed with Fliedner, calling the lack of transparency a “moral outrage.” She said she would insist on appointing special prosecutors to handle police shooting cases.

Gentile stated that the District Attorney’s office needed to be transparent. Citing the Eric Garner case, Gentile said he would have released the grand jury transcript as a way to increase the public’s confidence in the work of the District Attorney’s office.

Gonzalez led the case against Liang and asserted that the Brooklyn District Attorney’s Office was the first in the city to held a police officer accountable.

Broken Windows

A community member asked whether the candidates would decline prosecuting all “broken windows” offenses, including park trespassing, turnstile jumping, and minor drug possession.

Dwimoh asserted that broken windows policing has disproportionately impacted minority communities, and promised to either divert or dismiss those cases.

Swern warned that diversion of cases would not go far enough to address the underlying problems with broken windows policing.

“We need to be honest about [this],” Swern stated. “Referring [defendants] to a system that continues to penalize poverty is not the answer. In the theft of services issue, they said 25 percent of those issues will remain in the criminal courts. Why is that?”

Neither Gonzalez nor Gentile would commit to refusing to prosecute low-level offenses. “I’m looking to divert drug cases as a health issue,” Gonzalez said. “I also stated I would follow [Manhattan DA Cy] Vance’s lead [to stop prosecuting turnstile jumping].” Fliedner questioned why those policies have not already been enacted.

Gentile refused to categorically dismiss broken windows cases, stating they would be handled based on the “skill and analysis” of individual prosecutors in the office.

Protecting Immigrants Against Deportation

A community member asked what measures the candidates would take to ensure that New York acts as a strong counterweight to immigration policies coming out of Washington, D.C.

All candidates strongly agreed that they would do their best to ensure that immigrants do not face criminal charges that will result in an unwarranted deportation. Dwimoh accused the country of being “at war with immigrants” and promised to create a special unit in the office that would protect and advocate on behalf of immigrants.

Swern recalled her time at the Brooklyn Defender Services, where she learned that unrepresented immigrants were 80% more likely to be deported or forced to “voluntarily depart.”

Fliedner said he would ensure that his prosecutors fulfilled their “moral and ethical obligation” to individually consider the immigration consequences a defendant may face.

Gentile said he would support legislation that would protect misdemeanor defendants from automatic deportation by changing the maximum number of days they can be sentenced from 365 days to 364.

Topics that were not covered at last month’s forum include whether the candidates support civil asset forfeiture reformthe prosecution of gravity knife offensesthe prosecution of opiate offenses, or reforms to New York’s discovery laws.

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