THE “JOURNEY 4 JUSTICE” CAMPAIGN RELEASES A REPORT TO SUPPORT “STATE COMMISSION ON PROSECUTORIAL CONDUCT” BILL SIGNED BY GOVERNOR CUOMO

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THE “JOURNEY 4 JUSTICE” CAMPAIGN RELEASES A REPORT TO SUPPORT “STATE COMMISSION ON PROSECUTORIAL CONDUCT” BILL SIGNED BY GOVERNOR CUOMO

Thanks to Governor Cuomo, Senator Defrancisco, and Assemblymember Perry The Start For Real Criminal Justice Reform Is Officially In Motion And Needs Your Support

 

Will The 62 Hardworking Honest DA’s You Elect Challenge the Bill?

Gavel and Scale

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INTRODUCTION

In our continued effort to improve Public Safety through Criminal Justice Reform we present a Summary Report from our “Journey 4 Justice” Campaign as we celebrate our 17th anniversary as the #1 Not For Profit, Social Service, Hip-Hop Organization in the World fighting for Social Justice and Economic Equality.

 

ROCKEFELLER DRUG LAW REFORM

In 2003 the Hip-Hop Summit Action Network (our sister organization which has dissolved), along with the Countdown to Fairness Coalition, which the Hip-Hop Summit Youth Council was a member, sponsored a groundbreaking historical rally to reform the deadly and draconian Rockefeller Drug Laws, the Godfather of all Drug Laws nationwide.  Since 1973 the laws put a record number of citizens in prison destroying many families because of the mandatory minimum sentences, even for first-time offenders.  If you lost at trial you we subject to football numbers with a life sentence at the end.  So even after your release you were subject to lifetime parole.  

The June 4, 2003 rally marked the end of the 30-day “Countdown To Fairness” campaign that called upon former Governor Pataki, former NYS Assembly Speaker Sheldon Silver and former NYS Senate Majority Leader Joseph Bruno to take legislative action to repeal the 30-year old Rockefeller Drug Laws which were deemed unfair, unjust and racially discriminatory.

For over 30 years Albany legislators tried to repeal the policy with no success.  Now along comes the Hip-Hop Community lead by Russell Simmons and the Countdown To Fairness Campaign.  We reached out to students and young adults asking them to join us as we “Hold Class” afterschool to educate participants about the harsh law.  At the rally there were over 100,000 citizens marking another important milestone in the evolution of Hip-Hop Activism.  Some of the biggest stars in Hip-Hop and the entertainment industry were in attendance including: Russell Simmons, Dr. Ben Chavis, Jay Z, P. Diddy, Fat Joe, 50 Cent, Memphis Bleek, Susan Surandon, Tim Robbins, Mariah Carey, Damon Dash, Busta Rhymes, Erykah Badu, the D.O.C., Capone-N-Noreaga, The Beastie Boys, Fabolous, Kool G Rap, Joe Budden, M-1 from dead.prez, Mic Geronimo, Lemon (Def Poet), DJ Kid Capri, Grandmaster Caz, Red Café, Cherub and Andrew Cuomo, who is now the Governor of NYS.  The STARS used their celebrity status to educate and mobilize the crowd around an issue for which they are passionate.

After the rally Governor Pataki was so impressed by the power of Hip-Hop that he met with Russell Simmons and Dr. Ben to draft a Bill to reform the Rockefeller Drug laws after 30 years of suffering. 

On December 14, 2004, New York Governor George Pataki signed into law the Drug Law Reform Act, the first round of reforms.  On August 3l, 2005 the next round of reforms were passed and on April 24, 2009, Governor David Paterson at the Elmcor Youth and Adult Activities Center in Queens, signed the final Bill to repeal the Rockefeller Drug laws.  This action opened the doors for other states to follow suit freeing tens of thousands of people who were sentenced under some kind of Drug Law that mirrored the NYS Law.  In 2005 we released the King of Kings Documentary, with a unique double CD Soundtrack, which was created to further educate young citizens about the Drug laws, substance abuse and to keep them committed to help us make real reforms using their buying and political power to make a difference.  If not for the influence of Hip-Hop, Celebrities, and young citizens we would not have accomplished this historic action.  This proves “There is Strength in Numbers & Our Youth” so let’s continue the fight.

SECURE AMMUNITION AND FIREARMS ENFORCEMENT ACT (SAFE)

As we move forward to address Criminal Justice Reform, in 2010 we partnered with former NYS Senate Majority Leader Malcolm Smith, the first African-American Majority Leader in the State of NY, to create an anti-gun program that would include the participation of the community, with a focus on using the formerly incarcerated and building a stronger relationship between the Police and the Community.  During that year we co-wrote a proposal with Dr. Divine Pryor and submitted it to the Senator who used it to pass legislation to fund a 5 million dollar program to address gun and gang violence.  The program was called SNUG (“GUNS” spelled backwards) and was implemented in 10 counties across New York State. The program’s mission is to stop shootings and killings in communities experiencing disproportionately high rates of gun violence. Reputable peers act as mediators for high-risk individuals, intervening to stop violence before it occurs. Neighborhood based coalitions of residents, religious leaders and law enforcement work together to change behaviors and social norms that perpetuate violence.

The program partnered with Ceasefire out of Chicago and was a huge success as many lives were saved thanks to a reduction of gun shootings and murders.  Today the program is still called SNUG throughout NYS and CURE Violence in NYC.  Together they have an operating budget of over 40 million dollars. 

To support both initiatives that we helped to create, we founded the Hip-Hop Against Gun & Gang Violence Project, which is focused on Gun and Gang Violence prevention.   We know that Gangs need Guns to support their criminal operation.  The Project is now in its 7th year and has a strategic partnership with Power 105.1 and “The Shark” Daymond John.  We continue to consult and make recommendations to a host of gun and gang violence programs here in NYS, nationwide and abroad through a unique partnership we have with the United Nations and their 193 member countries.  In 2011 we implemented the original program submitted to Senator Smith for one year in Redfern Housing Projects in Far Rockaway, Queens one of the most dangerous Public Housing Projects in NYC.  The end results were zero homicides and zero shootings, according to the police data submitted with our final report.  Out of the 10 programs that received funding through the 5 million dollar grant, we had the best because we stuck to all the elements designed in the original program we submitted to Senator Smith.

NYS is the safest big state in the nation and NYC is the safest big city.  Last year there were 290 murders in NYC, this was the first time in recorded history that the homicide count was under 300.  Thanks to Law Enforcement Agencies and a host of community partnerships with SNUG and CURE Violence Programs, the results speak for themself.  This work set the stage in 2013 for the Governor to pass the most comprehensive Gun Safety law in the nation through the Secure Ammunition and Firearms Enforcement Act, commonly known as the NY SAFE Act.

STOP, QUESTION & FRISK

Another avenue of reforms that we had to address were the Stop, Question & Frisk policies.  In 2012 we worked with former NYC Mayor Bloomberg and former NYC Police commissioner Raymond Kelly to assess some reforms in the city’s STOP, QUESTION & FRISK policies, which were later declared unconstitutional.  As communities spoke out loud about the continued targeting of people of color by the police we worked with the commissioner to “Ease-Up” on the policy by reducing the number of Stops & FRISKS, as well as work more closely with community residents and leaders.  To support the plan we jointly launched the RAP 2 BRIDGE THE GAP program with NYPD to improve relations between police, students, youth and the community.  This historic initiative started the process of using the power of Hip-Hop to build a better bridge with law enforcement because a majority of all crimes are solved with the help of the community.  Truly there was a real need for both parties to find common ground to improve public safety and the program worked.

STATE COMMISSION ON PROSECUTORIAL CONDUCT

In 2015 we launched the 7 E’s 4 Power Project and Tour.  The purpose is to show young citizens how to use the 7 E’s: Education; Employment; Entrepreneurship; Economic Development; Entertainment; Equality; and Empowerment, to address: Gun & Gang Violence; Sexual Abuse Against Women and Girls; and the Heroin & Opioid crises.   In addition, the 7 E’s are also used to help participants address the “12 Doors of Life & Death.”  One of the 12 doors represents Criminal Justice Reform.  During the 2016 Presidential elections Criminal Justice Reform was a hot issue, but once Hillary Clinton lost the election the movement died.  As we continue to work with our elected officials around Criminal Justice Reform NYS Governor Andrew Cuomo finally passed a long awaited Bill to address Prosecutorial Misconduct; STATE COMMISSION ON PROSECUTORIAL CONDUCTThrough this historic Bill, the first by any state, there is an independent system to hold DA’s more accountable.  The Bill is the first step toward an overhaul of the entire system. 

We are currently working on a few big projects in Atlanta and New York, including the high profile case that involves Jelani Maraj, the brother of Hip-Hop Super Star Nicki Minaj.  Experts from the legal community say he could actually benefit from the Bill because his case is a perfect example of why we need real Criminal Justice Reform.  But before we start celebrating remember the 62 District Attorneys across the state are gearing up to challenge the new law on the grounds that it is unconstitutional.  The legislators have agreed to address any legal issues that compromise the law.  So stay tuned as we see just how the new laws plays out and what recommendations the Hip-Hop Community can make through our Journey 4 Justice Campaign to make the Bill even tighter. 

It is our hope that as we worked to repeal the Rockefeller Drug Law, we can once again use the Power and Influence of Hip-Hop to provide real support for those having a bad experience with our Criminal Justice System.  It’s been a long time coming, but its now up to our younger generation to take charge using their “VOICE & VOTE” to make a difference.

Said Governor Cuomo “Our criminal justice system must fairly convict the guilty and exonerate the innocent.”  Senator John DeFrancisco said, “There have been many cases of individuals who’ve been wrongfully convicted and who’ve served jail time because of the misconduct of some prosecutors.” Assemblymember Nick Perry said, “I am extremely happy that New York is finally answering the decades-long call for greater accountability from prosecutors.  Lack of oversight has caused irreparable damage to people’s lives and reputations through wrongful conviction, prosecutorial bias or other misconduct.”

Click here to download the Bill:

https://legislation.nysenate.gov/pdf/bills/2017/S2412D

12 DOORS OF LIFE AND DEATH

12 DOORS 112 DOORS 2

L to R: Danny Barber (NYCHA CCOP President), NYS Gov. Andrew Cuomo, NYC Councilmember Salamarca, Randy Fisher (HHSYC)

L to R:
Danny Barber (NYCHA CCOP President), NYS Gov. Andrew Cuomo, NYC Councilmember Salamarca, Randy Fisher (HHSYC)

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To support our “Journey 4 Justice” Campaign so we can continue our work to further reform the Criminal Justice System, which includes: Juror Selection & Conduct; Grand Jury Process, Appeals, Bail, Sentencing, Confessions & Interrogations, Evidence, DNA Policies and MORE, hit us up at: randyfisher@gmail.com.

Written and posted by Charles Fisher and Randy Fisher.

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Official Press Release From the Governor’s office

Independent, Publicly Accountable Commission Will Investigate Prosecutorial Misconduct to Address Claims of Malicious Prosecutions, Prevent Wrongful  Convictions, and Address Allegations of Wrongdoing

Addresses Complaints of Prosecutorial Misconduct Which Can Lead to Wrongful Convictions, Frequently Impacting People of Color

Governor Andrew M. Cuomo today signed legislation (S.2412-D/A.5285-C) establishing the nation’s first State Commission on Prosecutorial Conduct, with a three-way agreement on a chapter amendment to build on New York’s comprehensive criminal justice reform efforts. The Commission will review and investigate prosecutorial conduct to address allegations of misconduct which lead to among other things including malicious prosecutions and wrongful convictions, frequently impacting people of color and marginalized communities.  By avoiding wrongful convictions and associated retrial costs and settlements, the Commission will save taxpayers money. 

“Our criminal justice system must fairly convict the guilty and exonerate the innocent,” Governor Cuomo said.  “When any prosecutor consciously disregards that fundamental duty, communities suffer and lose faith in the system, and they must have a forum to be heard and seek justice.  This first-in-the-nation Commission will serve to give New Yorkers comfort that there is a system of checks and balances in the criminal justice system, and to root out any potential abuses of power to ensure that our justice system is just for all New Yorkers.”

Senator John DeFrancisco said, “There have been many cases of individuals who’ve been wrongfully convicted and who’ve served jail time because of the misconduct of some prosecutors. Despite the good work of most prosecutors, there must be a remedy against those who violate the law.  This prosecutorial conduct commission legislation, signed by the Governor today, will provide that remedy and also provide oversight by an independent body, which over time will change the conduct of the wrongdoing of prosecutors, and help to ensure all a fairer criminal justice system.”

Assemblymember Nick Perry said, “I am extremely happy that New York is finally answering the decades-long call for greater accountability from prosecutors. Lack of oversight has caused irreparable damage to people’s lives and reputations through wrongful conviction, prosecutorial bias or other misconduct.  This historic legislation will create a truly independent commission to investigate prosecutorial misconduct and will serve to assure New Yorkers that their justice system will treat them fairly and without bias.”

This action builds on the Governor’s record of fighting to restore faith and address inequities in our justice system. In 2015, Governor Cuomo signed an executive order appointing the state Attorney General to investigate and prosecute cases involving police officers who in their official capacities allegedly cause the death of an unarmed person. This ensures that a full, fair and thorough review of each case and removes any question of bias in the prosecution of those cases.

Governor Cuomo also led a successful effort to expand New York’s DNA databank in 2012, making New York the first state in the nation to require DNA samples from anyone convicted of a felony or Penal Law misdemeanor.  The access to a wider pool of DNA helps prevent crime, convict the guilty, and protect the innocent.

In addition, Governor Cuomo led the landmark effort in 2017 to raise the age of criminal responsibility, passed legislation that required law enforcement to video-record custodial interrogations for serious offenses, allowed the use of photo arrays to identify witnesses to be admissible at trial and extended the Hurrell-Harring settlement’s indigent criminal defense reforms to the entire State, becoming the first state in the nation to overhaul its public defense system in such a drastic manner.

In the time since Governor Cuomo took office, New York State has closed 24 prisons and juvenile detention centers—more than in any other period under one Governor in state history. The prison population has also decreased by more than 7,000 within that time. At the same time, New York has remained the safest large state in the country. Recognizing the critical need to address issues within local jails, the Governor’s 2018 State of the State policy agenda called for increased oversight of problematic facilities where the conditions of detained individuals are deplorable and dangerous. At the Governor’s direction and pursuant to their statutory authority, the State Commission of Correction reviewed years of on-site inspections, interviews, and investigations identifying five local jails in February 2018 that have persistently failed to maintain the minimum standards for the safe operation of a correctional facility.

The Governor also established the Work for Success Initiative which has helped over 18,000 formerly incarcerated people find work upon their release. Additionally, Governor Cuomo formed the state’s first Council on Community Re-Entry and Reintegration in 2014 to address obstacles formerly incarcerated people face upon re-entering society. Since its launch, the Council has helped spur a number of changes to improve re-entry ranging from adopting “Fair Chance Hiring” principles in state agencies to issuing guidance that forbids discrimination at New York-financed housing based on a conviction alone.

Andrew Cuomo signs new prosecutor conduct law; DAs say they will fight

Jon Campbell, Albany Bureau Published Aug. 21, 2018

ALBANY – New York’s district attorneys plan to challenge a new law signed by Gov. Andrew Cuomo that
will create a commission to investigate alleged wrongdoing by prosecutors.

Cuomo signed a bill Monday evening establishing the state Commission on Prosecutorial Conduct, which will be tasked with reviewing and investigating complaints lodged against district attorneys and their prosecutors across the state.

The Democratic governor — who has the ability to remove prosecutors from office — said he signed the bill after leaders in the state Legislature agreed to address constitutional issues with the bill identified by state Attorney General Barbara Underwood’s office when lawmakers next return to the Capitol.

The new law means New York will be the first state to have a statewide panel to deal with prosecutorial conduct complaints. But Cuomo’s signing of the bill angered the state’s district attorneys, who have maintained the bill violates the separation of powers among the three branches of government.

In a statement, the state District Attorneys Association vowed to file a lawsuit claiming the new law violates the state Constitution.

“It is unfathomable that lawmakers would author and pass a bill that has numerous constitutional flaws and violates the separation of powers,” Albany County District Attorney David Soares, the association’s president, said in a statement. “It is outrageous that the governor would sign such a bill.”

Wrongfully accused

Cuomo had been facing significant pressure from proponents and opponents of the bill.

Advocates for the wrongfully accused have long pushed for a commission to review and investigate complaints against prosecutors, arguing that it would increase accountability and help prevent errant convictions.

In his own statement, Cuomo said the criminal-justice system “must fairly convict the guilty and exonerate the innocent.”

“When any prosecutor consciously disregards that fundamental duty, communities suffer and lose faith in the system, and they must have a forum to be heard and seek justice,” Cuomo said.

“This first-in-the-nation Commission will serve to give New Yorkers comfort that there is a system of checks and balances in the criminal justice system, and to root out any potential abuses of power to ensure that our justice system is just for all New Yorkers.”

The bill signed by Cuomo would create an 11-member panel to investigate complaints and make recommendations to the governor, who has the ability to remove prosecutors from office for cause. The members would be appointed by Cuomo, the chief judge of the Court of Appeals and legislative leaders. Constitutional issues Underwood’s office, however, had raised six constitutional concerns with the bill in its current form, including that it would force the Court of Appeals to appoint sitting judges to sit on the commission, which they are constitutionally barred from doing.

In an approval message attached to the bill, Cuomo acknowledged that the bill “suffers from several flaws” that could lead to its undoing from a court challenge. But Cuomo said he and legislative leaders have agreed to approve changes to the new law meant to protect against a constitutional challenge, including the removal of the requirement that current judges participate.

The exact language of those changes has not been released publicly. The strategy is not an unusual one for Cuomo, who frequently seeks legislative changes to bills when he agrees with the concept behind flawed legislation.

At least 30 times in the past year, Cuomo has signed a bill in exchange for a promise from legislative leaders to pass a chapter amendment cleaning up legal, constitutional or technical issues. State lawmakers are next scheduled to return to the Capitol in January, though they could be called back sooner.

Underwood’s office declined comment Tuesday. In a joint statement, Assembly Speaker Carl Heastie and Assembly bill sponsor Nick Perry, D-Brooklyn, said the creation of the commission is “an important step in ensuring we have a fair and equitable criminal justice system here in New York.”

The Senate bill was sponsored by Deputy Majority Leader John DeFrancisco, R-DeWitt, Onondaga County. Cuomo’s signing of the bill drew praise from the Innocence Project, an organization that works to free the wrongfullly convicted.

“While most prosecutors respect their ethical obligations, far too many innocent people have been wrongly convicted as a result of prosecutorial misconduct, and until today there was no effective means for holding those who commit bad acts accountable,” said Rebecca Brown, the Innocence Project’s policy director.

Soares, the District Attorneys Association president, said prosecutors across the state “adhere to their oaths and defend the constitution” every day.

“As a result of today’s events, (the association) has little choice but to defend the constitution in court yet again — by mounting a vigorous challenge to the enactment of this misguided legislation,” Soares said.

“This first-in-the-nation Commission will serve to give New Yorkers comfort that there is a system of checks and balances in the criminal justice system, and to root out any potential abuses of power to ensure that our justice system is just for all New Yorkers.”

The bill signed by Cuomo would create an 11-member panel to investigate complaints and make recommendations to the governor, who has the ability to remove prosecutors from office for cause.  The members would be appointed by Cuomo, the chief judge of the Court of Appeals and legislative leaders.

Constitutional issues

Underwood’s office, however, had raised six constitutional concerns with the bill in its current form, including that it would force the Court of Appeals to appoint sitting judges to sit on the commission, which they are constitutionally barred from doing.

In an approval message attached to the bill, Cuomo acknowledged that the bill “suffers from several flaws” that could lead to its undoing from a court challenge. But Cuomo said he and legislative leaders have agreed to approve changes to the new law meant to protect against a constitutional challenge, including the removal of the requirement that current judges participate.

The exact language of those changes has not been released publicly. The strategy is not an unusual one for Cuomo, who frequently seeks legislative changes to bills when he agrees with the concept behind flawed legislation.

At least 30 times in the past year, Cuomo has signed a bill in exchange for a promise from legislative leaders to pass a chapter amendment cleaning up legal, constitutional or technical issues. State lawmakers are next scheduled to return to the Capitol in January, though they could be called back sooner.

Underwood’s office declined comment Tuesday. In a joint statement, Assembly Speaker Carl Heastie and Assembly bill sponsor Nick Perry, D-Brooklyn, said the creation of the commission is “an important step in ensuring we have a fair and equitable criminal justice system here in New York.”

The Senate bill was sponsored by Deputy Majority Leader John DeFrancisco, R-DeWitt, Onondaga County. Cuomo’s signing of the bill drew praise from the Innocence Project, an organization that works to free the wrongfullly convicted.

“While most prosecutors respect their ethical obligations, far too many innocent people have been wrongly convicted as a result of prosecutorial misconduct, and until today there was no effective means for holding those who commit bad acts accountable,” said Rebecca Brown, the Innocence Project’s policy director.

Soares, the District Attorneys Association president, said prosecutors across the state “adhere to their oaths and defend the constitution” every day.

“As a result of today’s events, (the association) has little choice but to defend the constitution in court yet again— by mounting a vigorous challenge to the enactment of this misguided legislation,” Soares said.

New York’s Prosecutorial Misconduct Review Panel Could Be Groundbreaking

JCampbell1@Gannett.com

But only as a first step.

By Maura Ewing —Aug 28, 2018

Jeffrey Deskovic spent 16 years—from the age of 17 to 32—locked up in New York prisons for a 1989 rape and murder he did not commit. Despite potentially exculpatory DNA and hair evidence, the prosecution forged ahead with its case, according to a civil lawsuit later filed on Deskovic’s behalf.

Of the 250 exonerations in New York since 1989, at least a third involved allegations of official misconduct by police, prosecutors, or other officials. In the case of prosecutors, that misconduct could include using witnesses known to be unreliable or hiding evidence from the defense. Yet disciplinary action against prosecutors is virtually nonexistent. An Innocence Project survey published in 2016 identified 148 cases of prosecutorial misconduct in New York over a five-year period; no prosecutors involved faced sanctions.

That’s the problem that Deskovic, who was released in 2006, and other exonerees and advocates were determined to solve when they lobbied state legislators to create a watchdog entity to investigate misconduct in criminal cases. On Aug. 20, their work paid off when Gov. Andrew Cuomo signed the country’s first commission on prosecutorial conduct into law.

But while few doubt the benefits of having such a commission, some criminal justice experts say it’s too soon
to celebrate.

“I feel ecstatic that the bill has become law; it has been a really long and hard fight,” said Deskovic, who now runs a foundation to help wrongfully convicted prisoners. Had there been oversight on the prosecutor in his case, “I believe I would have been found not guilty,” he said. “I would have finished high school, gone to the prom. I wouldn’t have suffered the psychological impact of incarceration or the difficulties acclimating back to society.”

Cuomo’s decision to establish this commission defied the powerful District Attorneys Association of the State of New York, which aggressively lobbied against the bill and continues to threaten to sue over its constitutionality. Enacting this legislation sends a stern message to line prosecutors and elected district attorneys that they must play fair. (Notably absent from the choir of support for the commission were two New York City district attorneys often touted as reformers: Brooklyn’s Eric Gonzalez and Manhattan’s Cy Vance. Neither responded to requests for comment.)

The State Commission on Prosecutorial Conduct’s 11 members will be appointed by the governor, state legislative leaders, and the chief judge of the Court of Appeals. They have the power to initiate investigations and to subpoena evidence and documents from prosecutors and witnesses. If they find wrongdoing, the panel will recommend sanctions against the prosecutors ranging from a warning to termination, which the governor can impose or dismiss. When allegations are confirmed, information from the investigation will be made public, a measure important to outside advocates and journalists (an amendment to exclude sensitive information such as the names of whistleblowers is expected to be enacted).

“I think it’s groundbreaking legislation,” said Rebecca Brown, director of policy at the Innocence Project. “I hope this begins to move other states to follow.”

But while few doubt the benefits of having a commission on prosecutorial misconduct, some criminal justice
experts say it’s too soon to celebrate. Commission members will be given the power to investigate alleged bad actors, for instance, yet the efficacy of that power will most likely depend on who holds it. “Who those appointees are really matters,” said Nick Encalada-Malinowski, civil rights campaign director for the nonprofit Vocal New York.

The bill mandates that the commission include prosecutors, defense attorneys, and judges. But to be fully representative, Encalada-Malinowski said, it should also include someone who was wrongly convicted. “You
want the people who are actually making the complaint to be treated in a fair way,” he said.

And while New York’s model is a step toward reining in foul play, misconduct is only defined by current standards, which most advocates agree aren’t strong enough. “Prosecutors make thousands of decisions every day that have enormous impact on the lives of our clients and the cases that they have open,” said Scott Hechinger, director of policy at Brooklyn Defender Services. “A lot of these decisions would not be considered within the jurisdiction of this commission, but I consider [them] misconduct, especially given the power of prosecutors.”

Under New York law, for instance, prosecutors are allowed to wait until the eleventh hour to disclose evidence against the defendant; to request exorbitant bail, which makes low-income defendants more likely to accept a plea deal; and to wield enormous discretion in choosing which cases to prosecute and what charges to set. These are all powers that greatly affect the course of a case.

What’s missing from the current debate, explained John Pfaff, author of Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, is a broader look at how regular practices should be reformed.

“[The commission] focuses on misconduct,” Pfaff said. “There has been no reform yet that directly addresses prosecutorial conduct.”

“Misconduct is obviously awful and needs to be stopped,” Pfaff said. “But my general sense about what drives mass incarceration is less misconduct and more about prosecutors making decisions that are publicly legal but unnecessary.” Pfaff gave the example of a person who is arrested for a fistfight. “This person is guilty: He punched someone in the face. By charging him, there is not misconduct, but does this person need to go to prison?” One prosecutor may think yes, another no, resulting in disparate charges and punishment. Beyond the commission, which he supports, Pfaff thinks there should be more consistent charging practices that would be transparent and open to public scrutiny.

New York’s commitment to curbing bad-acting prosecutors is “a huge, important step forward,” Pfaff said. “But my hope is there will be more regulation of the day-to-day ways prosecutors work.”

Posted by Charles Fisher and Randy Fisher.

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