AS BOTH a socialist and having served as a public defender for the last 13 years, I watched the new HBO documentary Gideon's Army with a good deal of interest.
Overall, the film puts an important spotlight on the hard work many public defenders do every day--all the more so with the abundance of cop shows glorifying police and prosecutors. And while I do highly recommend everyone watch the film, I couldn't help thinking that there was another side of the story that the film missed.
Gideon's Army focuses on a few of dedicated, earnest public defenders who work extremely hard, despite trying circumstances and who really seem to care about their job and their clients (one tattooing on his back the names of every client whose case he lost).
But what about the many public defenders who don't care at all? Even a brief survey of ineffective assistance of counsel claims reveals public defenders who literally fell asleep at the counsel table during trials. But even this is the tip of the iceberg.
Many public defenders have caseloads so high that they cannot adequately represent all clients. This creates a natural inclination to work hard on cases in which one is sympathetic to one's client, or where one feels the person is actually innocent, while neglecting (in varying degrees) most other cases.
When New York City began mandating in 2003 that all public defenders in Family Court (which handles primarily juvenile delinquency and child protective cases) accept all new cases which are filed, regardless of caseload, I expressed to the head of the public defender panel that this is likely to create a spiraling, unmanageable caseload. She replied, "Legal Aid attorneys manage over 250 cases each--you'll just need to find a way to do it." This same head testified at a trial just months before that anything over 70 cases risks neglect of clients.
On the other hand, the crushing caseloads and extremely low pay, relative to the private sector, creates an inclination to "tune out." As one public defender commented to me several years ago, "I have the best job in the world. I can go to work, hang out with my friends, do crossword puzzles in the back of the courtroom, get my cases done by lunchtime and then go hang out at the mall for the rest of the day [rather than going back to his office to do work]." This same person graduated at the very bottom of his law school class.
In New York, supposedly a liberal bastion, public defenders are paid $75 per hour and have not received a raise in 10 years. By comparison, the consumer price index has seen an increase during that time of nearly 25 percent. Federal public defenders in New York have made $125 an hour for the last three years.
And while even they deserve a raise, the last state raise was, in part, based on what the federal defenders made back in 2003. Since then, federal defenders have seen six rate increases, with pay going from $75 an hour to $125 an hour. Because New York has steadfastly refused to raise rates for the public defenders, the state and counties have thus profited by hundreds of millions in underfunding the public defense system.
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ADDITIONALLY, IN Gideon's Army, the public defenders have relatively clean desks and relatively well-organized offices. What about the many public defenders who don't even have desks (just "virtual offices") because they're paid so little? What about the many who don't have actual offices--or their offices are so shoddy because they can't afford anything better? There are more than a few public defenders I know who must take old files home and store them in their basements or closets because they can't afford to rent additional space to store their files.
We see in the film pictures of public defender offices with well-stocked law libraries and shelves filled with new legal texts. What about the many who can't afford updated law books? What about the many who can't afford subscriptions to computerized legal research, such as Westlaw or Lexis?
And this isn't even to mention how, in New York, public defenders must submit "vouchers" in order to be paid on a case to the same judge before whom they just litigated the case. The same judge has no power whatsoever to determine the pay of the district attorney or prosecutor, yet has the power to reduce--sometimes sharply reduce--the pay that a public defender receives.
This creates a system in which public defenders must "know their place" and not file too many motions or be too aggressive on cases, lest it create too much work for the person holding the purse strings of their pay. "Why 'rock the boat' and risk not being able to pay the mortgage this month" is a question many public defenders face--though this inherent conflict of interest almost never sees the light of public scrutiny.
A just system of public defense would provide adequate pay for public defenders. A private attorney with 15-20 year's of experience in New York City makes $375-400 or more per hour. If we cared about the system of public defense, we can and should have public defenders paid at least half the rates of those in the private sector.
But raising the salaries of public defenders is only one side of the coin. Public defenders must be accountable to their clients and to the public at large. Clients must be provided information on how they can file complaints against their attorney, and there must be greater oversight of public defenders to make sure they do their job--and do it well.
Just as is the case for working-class children who deserve adequate education, we need to answer the question of "the public defense system the 99 percent deserves."
-- David Bliven (www.blivenlaw.net)
(Article first published at www.socialistworker.org)
David Bliven is a former prosecutor who handles police misconduct cases as well as governmental agency (CPS & ACS) misconduct and fair hearing matters. His website can be found at www.blivenlaw.net.
Tuesday, October 22, 2013
Comment: "Broken windows" is a broken idea
ON THE October 4, 2013, episode of Real Time with Bill Maher, host Bill Maher stated:
As a preliminary matter, it should be said that "broken windows" did NOT actually work, because crime was plummeting all over the country--including in cities which didn't use "broken windows" policies.
As elaborated on in the book Our Enemies in Blue: Police and Power in America by Kristian Williams, "broken windows" was a theory first articulated in an article in the March 1982 issue of The Atlantic Monthly by James Q. Wilson and George L. Kelling. It advocated, in a nutshell, that if society ignored "petty crime," it would then lead to more and more serious crime.
They went on to say--in not-so-hidden racist code--that if petty crime is ignored, "a stable neighborhood of families who care for their homes, mind each other's children and confidently frown on unwanted intruders can change, in a few years or even a few months, to an inhospitable and frightening jungle."
They went on to describe the effects of unaddressed petty crime (without, of course, any actual scientific evidence): "families move out, unattached adults move in. Teenagers [who knows where they came from if their families just moved out?] gather in front of the corner store."
As Kristian Williams stated, "It seems frankly implausible that litter and abandoned cars lead to rape and murder." But this is just the sort of logic put forth by the white liberal establishment to explain the ghetto. However, "if panhandler and dilapidated buildings serve as indicators of disorder, and thus promote crime, then public safety should be better advanced by the state's welfare functions rather than its policing functions."
But the bottom line is that it's far cheaper--and more effective at perpetuating to status quo--to spend money on cops and jails rather than on good jobs, schools and hospitals.
- - - - - - - - - - - - - - - -
THE "BROKEN windows" theory was implemented by then-NYPD Commissioner William Bratton (along with the active enforcement from then-Mayor Rudolph Giuliani). The NYPD's crackdown began with "petty crime," but soon expanded to the homeless, vagrants and drunks--and then expanded further to peep shows, street vendors and cabbies.
But the logic of the program couldn't just stop there. The NYPD began putting undercover officers in the subways to crack down on drunks and turnstile jumpers, and, throughout the "liberal '90s," vastly expanded the number of cops on the streets.
When the program appeared to be working well (from the police and white liberal establishment perspective), it expanded into the now-infamous Street Crimes Unit. This involved packing four (almost always white) undercover NYPD thugs into an unmarked car and allowing them to drive around Black and Latino neighborhoods all day and all night to harass minorities.
As a young civil rights lawyer in Jamaica, Queens, at the time, I had more than a few victims of this police harassment come into my office. They were often Black teenagers who described how they were walking home from school, or from the store, or just hanging out with friends, when a car pulled up and out jumped the NYPD thugs. They'd throw the teen into their car, rough him up in the backseat, try to get drug sale information out of him, and when they determined the kid knew nothing, end up dumping the then utterly frightened kid on the other side of Queens.
The Street Crimes Unit was eventually disbanded--not because it wasn't effective at its mission (intimidating and oppressing Blacks and Latinos)--but because it eventually made its way into the mainstream press and thus fell out of favor with the white liberal establishment. The idea behind the Street Crimes Unit lived on and was quickly replaced by Drug Sweep Teams, which were the precursor to the "stop-and-frisk" policy.
- - - - - - - - - - - - - - - -
BROKEN WINDOWS itself rests on a racist premise: "That shit doesn't go on in my [white] neighborhood. Why do 'those people' act like that? They're so uncivilized. They need me to go in and fix their shit because they're too lazy to do it for themselves."
One can see this mindset from white liberals pervade other areas, like the whole concept of charity and Teach for America (but this is fodder for another article).
But one can paint over the graffiti, and the same shitty building will still be there underneath. You can fix the broken windows, but the fact that you'll still be living in a building without adequate space, without adequate heat and air conditioning, and without adequate electric will still exist underneath. You'll still wake up in that same building day after day, dragging yourself into work at a job that pays just enough to keep you alive, but not enough so you can actually enjoy life.
In other words, one may fix the surface while not actually addressing the underlying inequities which exist--the lack of a living wage, quality health care, etc.
But this is the way the white liberal establishment has always thought. "If we do away with slavery, all will be better. Just take the chains off and we're all good, right?" A radical demand after slavery was abolished was for "40 acres and a mule." It was never implemented, however, because no thought was given to actual justice. In the modern era, justice at a minimum would provide people with an adequate job, adequate housing and a decent way of life.
"Broken windows" is the soft oppression meted out by police which remains acceptable to the white liberal establishment. Its results are the same as conservative policies like stop-and-frisk--intimidation of minority communities, the jailing of as many as possible and the oppression of the people with military-style occupation. What it won't do is provide a living wage, schools on a par with suburban schools and a decent living.
To paraphrase Dr. Martin Luther King Jr., true justice is not flinging a coin at a beggar. Justice is questioning why we have beggars in the first place.
It may seem an amazing statement, but demanding true equality for racial minorities is a radical agenda. White liberals like Bill Maher may accept Blacks sitting at the lunch counter, but won't accept having to spend billions to ensure all Blacks and minorities can (in the words of King) "afford a hamburger and a cup of coffee."
As radicals, we need to reject and challenge the liberal establishment any time they put forth policies like "broken windows." It only leads to further racism and oppression--and away from the truly just society we seek.
-- David Bliven (www.blivenlaw.net)
(This article was first published at www.SocialistWorker.org)
You know, back in the 1990s, New York City tested an idea called the broken windows theory, which said in a nutsack [sic], that if you fix the little things that make people feel like they're living in a dumpy neighborhood, the big things will follow. If you fix the broken windows and paint over the graffiti and pick up the trash, a psychological barrier is broken.This statement is especially concerning given the rumors that liberal New York mayoral candidate Bill de Blasio may bring back "broken windows" architect William Bratton as NYPD commissioner.
New York basically said we're going to look good until we feel good. And it worked! Crime plummeted. And before you say, but Bill, this is about poverty, not fashion, no. No, it's not. If you can afford pajama pants, you can afford pants!
As a preliminary matter, it should be said that "broken windows" did NOT actually work, because crime was plummeting all over the country--including in cities which didn't use "broken windows" policies.
As elaborated on in the book Our Enemies in Blue: Police and Power in America by Kristian Williams, "broken windows" was a theory first articulated in an article in the March 1982 issue of The Atlantic Monthly by James Q. Wilson and George L. Kelling. It advocated, in a nutshell, that if society ignored "petty crime," it would then lead to more and more serious crime.
They went on to say--in not-so-hidden racist code--that if petty crime is ignored, "a stable neighborhood of families who care for their homes, mind each other's children and confidently frown on unwanted intruders can change, in a few years or even a few months, to an inhospitable and frightening jungle."
They went on to describe the effects of unaddressed petty crime (without, of course, any actual scientific evidence): "families move out, unattached adults move in. Teenagers [who knows where they came from if their families just moved out?] gather in front of the corner store."
As Kristian Williams stated, "It seems frankly implausible that litter and abandoned cars lead to rape and murder." But this is just the sort of logic put forth by the white liberal establishment to explain the ghetto. However, "if panhandler and dilapidated buildings serve as indicators of disorder, and thus promote crime, then public safety should be better advanced by the state's welfare functions rather than its policing functions."
But the bottom line is that it's far cheaper--and more effective at perpetuating to status quo--to spend money on cops and jails rather than on good jobs, schools and hospitals.
- - - - - - - - - - - - - - - -
THE "BROKEN windows" theory was implemented by then-NYPD Commissioner William Bratton (along with the active enforcement from then-Mayor Rudolph Giuliani). The NYPD's crackdown began with "petty crime," but soon expanded to the homeless, vagrants and drunks--and then expanded further to peep shows, street vendors and cabbies.
But the logic of the program couldn't just stop there. The NYPD began putting undercover officers in the subways to crack down on drunks and turnstile jumpers, and, throughout the "liberal '90s," vastly expanded the number of cops on the streets.
When the program appeared to be working well (from the police and white liberal establishment perspective), it expanded into the now-infamous Street Crimes Unit. This involved packing four (almost always white) undercover NYPD thugs into an unmarked car and allowing them to drive around Black and Latino neighborhoods all day and all night to harass minorities.
As a young civil rights lawyer in Jamaica, Queens, at the time, I had more than a few victims of this police harassment come into my office. They were often Black teenagers who described how they were walking home from school, or from the store, or just hanging out with friends, when a car pulled up and out jumped the NYPD thugs. They'd throw the teen into their car, rough him up in the backseat, try to get drug sale information out of him, and when they determined the kid knew nothing, end up dumping the then utterly frightened kid on the other side of Queens.
The Street Crimes Unit was eventually disbanded--not because it wasn't effective at its mission (intimidating and oppressing Blacks and Latinos)--but because it eventually made its way into the mainstream press and thus fell out of favor with the white liberal establishment. The idea behind the Street Crimes Unit lived on and was quickly replaced by Drug Sweep Teams, which were the precursor to the "stop-and-frisk" policy.
- - - - - - - - - - - - - - - -
BROKEN WINDOWS itself rests on a racist premise: "That shit doesn't go on in my [white] neighborhood. Why do 'those people' act like that? They're so uncivilized. They need me to go in and fix their shit because they're too lazy to do it for themselves."
One can see this mindset from white liberals pervade other areas, like the whole concept of charity and Teach for America (but this is fodder for another article).
But one can paint over the graffiti, and the same shitty building will still be there underneath. You can fix the broken windows, but the fact that you'll still be living in a building without adequate space, without adequate heat and air conditioning, and without adequate electric will still exist underneath. You'll still wake up in that same building day after day, dragging yourself into work at a job that pays just enough to keep you alive, but not enough so you can actually enjoy life.
In other words, one may fix the surface while not actually addressing the underlying inequities which exist--the lack of a living wage, quality health care, etc.
But this is the way the white liberal establishment has always thought. "If we do away with slavery, all will be better. Just take the chains off and we're all good, right?" A radical demand after slavery was abolished was for "40 acres and a mule." It was never implemented, however, because no thought was given to actual justice. In the modern era, justice at a minimum would provide people with an adequate job, adequate housing and a decent way of life.
"Broken windows" is the soft oppression meted out by police which remains acceptable to the white liberal establishment. Its results are the same as conservative policies like stop-and-frisk--intimidation of minority communities, the jailing of as many as possible and the oppression of the people with military-style occupation. What it won't do is provide a living wage, schools on a par with suburban schools and a decent living.
To paraphrase Dr. Martin Luther King Jr., true justice is not flinging a coin at a beggar. Justice is questioning why we have beggars in the first place.
It may seem an amazing statement, but demanding true equality for racial minorities is a radical agenda. White liberals like Bill Maher may accept Blacks sitting at the lunch counter, but won't accept having to spend billions to ensure all Blacks and minorities can (in the words of King) "afford a hamburger and a cup of coffee."
As radicals, we need to reject and challenge the liberal establishment any time they put forth policies like "broken windows." It only leads to further racism and oppression--and away from the truly just society we seek.
-- David Bliven (www.blivenlaw.net)
(This article was first published at www.SocialistWorker.org)
Wednesday, October 9, 2013
Assault at school- go to the police?
Q: My son who is in 8th grade got into a simple debate about whether his friend was a better skateboarder than another kid who is in his school and told the other kid he wasn't a good skateboarder.
The other kid, it turns out, is turning 16 next month, and still in the 8th grade. The other kid threw my son down to the ground, got on top of him, and kept my son down by pressing down on my son's neck with his forearm. The other kid is almost 200 lbs, about twice my son's weight. The school my give him an external suspension for 3 days, even though the zero-tolerance policy is 5. We have heard through a mutual friend that the student may only get 1 day external suspension because he didn't punch my son. Should I go to the police or let the school do as they may?
I asked about the student's history, and the school's assistant principal would not tell me anything about the student, including his name, and told me they cannot tell me how they are disciplining the student. Of course my son told me the student's name. The student has been left back twice , and the student was caught with drugs in the past- common knowledge, and the student openly admits it to other students. Luckily my son had a group of other students see what happened and pulled the kid off him. My son didn't even try to defend himself for fear of getting in trouble.
I forgot- the other kid also went to my son's class later on and "called him out" during my son's Social Studies class. The teacher threw the other kid out of the room and sent him on his way. The teacher went into the hallway after the other kid left and talked to another adult, about what we don't know.
A: David's Answer: First, you should consider consulting with a lawyer handling education lawsuits, as you may wish to document to the school that you feel under-disciplining the student may risk more harm in the future. Second, if you are dissatisfied with the school's response, then yes, it would appear to make out a cause of action for disorderly conduct & thus reportable to the police. -- David Bliven, Bronx Civil Rights attorney (www.blivenlaw.net)
The other kid, it turns out, is turning 16 next month, and still in the 8th grade. The other kid threw my son down to the ground, got on top of him, and kept my son down by pressing down on my son's neck with his forearm. The other kid is almost 200 lbs, about twice my son's weight. The school my give him an external suspension for 3 days, even though the zero-tolerance policy is 5. We have heard through a mutual friend that the student may only get 1 day external suspension because he didn't punch my son. Should I go to the police or let the school do as they may?
Additional information
I forgot- the other kid also went to my son's class later on and "called him out" during my son's Social Studies class. The teacher threw the other kid out of the room and sent him on his way. The teacher went into the hallway after the other kid left and talked to another adult, about what we don't know.
A: David's Answer: First, you should consider consulting with a lawyer handling education lawsuits, as you may wish to document to the school that you feel under-disciplining the student may risk more harm in the future. Second, if you are dissatisfied with the school's response, then yes, it would appear to make out a cause of action for disorderly conduct & thus reportable to the police. -- David Bliven, Bronx Civil Rights attorney (www.blivenlaw.net)
Illegal search
Q: The cops were conducting surveilance on me they have no informant or snitch as i leave the building with a bag that contents could not be seen as per officer at hearing and no suspicious activity an undercover narcotics officer jumps out of car and request i place bag down, he doesnt identify himself as an officer i turn away from him and they apprehend me, is the search legal? Hes trying to justify his search in affidavit that i dropped bag but he also sayd there was no suspicious activity on my nehalf and the bag was just weighted down
A: David's Answer: More facts would be needed to answer this question definitively. First, it is possible you were in an "area known for drug sales." Second, it's possible there was already a warrant allowing for the surveillance in the first place. I would also like to see the actual affidavit of the officer. Third, is this part of a pending criminal case against you? If yes, then you need a criminal defense lawyer right now, not a civil rights lawyer. For a full assessment, schedule a consultation with a Westchester civil rights lawyer. -- David Bliven, Bronx Civil Rights attorney (www.blivenlaw.net)
A: David's Answer: More facts would be needed to answer this question definitively. First, it is possible you were in an "area known for drug sales." Second, it's possible there was already a warrant allowing for the surveillance in the first place. I would also like to see the actual affidavit of the officer. Third, is this part of a pending criminal case against you? If yes, then you need a criminal defense lawyer right now, not a civil rights lawyer. For a full assessment, schedule a consultation with a Westchester civil rights lawyer. -- David Bliven, Bronx Civil Rights attorney (www.blivenlaw.net)
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