Lukewarm Lawyer

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Lukewarm Lawyer
Poster by Emily May, Boston, MA

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Forgive Us the Wrong We Have Done

Lord,

As you look upon those who imprison us and upon those who deliver us to the torture chamber; when you consider the actions of our jailers and the heavy sentences passed upon us by our judges; when you pass judgment on the life of those who humiliate us and the conscience of those who reject us, forgive, O Lord, the evil that they may have done.

Remember, rather, that it was by this sacrifice that we draw close to your crucified Son: through torture, we obtain his wounds; through jail terms, his freedom of spirit; through punishment, the hope of his kingdom; through humiliation, the joy of his sons.

Remember, O Lord, that this suffering germinates, within us, the crushed seed that sprouts, the fruit of justice and of peace, the flower of light and love.

But remember especially, O Lord, that we never want to be like them, or to do to our neighbors what they have done to us.

-Brother Fernando, Brother Ivo, and Brother Betto, “Orcado de um prisioneiro” (“Prayer of a Prisoner”), in O Canto na fogueiro (“Song from the Execution Pyre”), Petropolis, 1977, p.346

The Case for the Fallen

Ora et Labora

As we approach the end of another year of thought, prayer and work, we think about all of the people whose contributions to the cause of justice and restoration who have played such an important part in our lives.

There never seems to be a shortage of stories about “historic” measures and great accomplishments by important people. But let’s reflect for a moment on the sanctity of ordinary things and the labors of compromised people.

Every society and culture has its pariahs and outcasts and we Americans have especially managed to glorify the powerful and attractive and marginalize people who fall from grace.  And every year there is a new super class and an even more isolated sub class.

In the sixties we used the term “establishment” to describe the people who had the favor and the power.  “Power, grace and style”, were the attributes songwriter Paul Simon used to describe one of them.

Today some refer to “the one percent”. Others describe people of consequence as “mainstream” and those in authority as the “system”.  Then there are the sophisticates; the artists, academics and writers and media and business people, professionals and advocates, some of whom may  be considered countercultural  but  most of whom usually make it a point to keep up the economic and social standing they need to stay relevant. And then we have the middle class; the working poor and under and unemployed, all trying their best to maintain. From each of these groups, we see people routinely falling away from the circle of acceptance and becoming more a part of an almost reality, once or twice removed from the good society.

And it can happen fast. A health crisis, a lost job or profession, an encounter with the law, prison, bankruptcy, a financial or sex scandal. It happens. And when it does, it changes everything and that fine upstanding, educated, productive person you worked with or lived next door to becomes viewed as a cripple, with seemingly little or nothing to contribute to society.

There is a case to be made that broken people can help rebuild a broken system and a broken world and that in fact it takes a broken spirit to fix a dispirited nation.  We need to start salvaging damaged human resources and putting them to use for the good.

Look at history.

Those who place value in the Scriptures and religious history will recall that God chose Jacob, with all his early character flaws to lead Israel; that Jesus chose a band of socially marginal fisherman to spread the Gospel and build his Church and rescued people like Mary Magdalene from the authorities and invited himself to the home of the financially disreputable Zacchaeus to discuss restorative justice. And in the Thirteenth Century, it took a 25 year old Catherine of Siena to challenge a Pope in exile to tear down the existing Church and rebuild it, brick by brick. Francis of Assisi, an affluent playboy of his time confronted his own emptiness by running away from his mercurial father to embrace poverty and rebuild a broken church.

For those who prefer political analogy, Franklin Roosevelt was a spoiled, ambitious self-indulgent aristocrat when he was stricken with polio and began to seek wellness by bathing in the springs of Georgia with the poor and decrepit of his time.  So compelling was this transformation for him that he dedicated what was left of his life to restoring a nation and it’s poor to economic wellness and mobilizing America to equip herself and her allies in the fight against tyranny and darkness in World War Two.  And there are many other such stories, some not so heralded, like New York’s former Chief Judge Sol Wachtler, whose fall from brilliant jurist to federal inmate was heartbreaking. Today Judge Wachtler is quietly teaching us again about justice and law and restoration, this time with a far more complete point of view.  Former New York City Police Commissioner Bernard Kerik, having also served time in prison, has urged us to educate ourselves about the evils and waste that characterize our criminal justice and prison systems and dedicated himself to the cause of criminal justice and penal reform.

Since the economic meltdown of 2008 hundreds of bankers and financiers have faced public wrath over their improper and reckless financial practices which have caused millions to lose their homes and destabilized home values and credit markets for years to come.  Many such individuals and institutions have tried to make amends by paying fines to avoid criminal prosecution. Others, like Goldman Sachs have been more proactive and have instituted new financial instruments called Social Justice Bonds to finance prisoner re-entry programs at New York City’s Rikers Island.

Recognizing the need to include these people and institutions in the business of criminal Justice reform, the New York State Defenders Association, a 46 year old, not for profit public defense resource organization, is creating the Zaccheaus Justice Fund, to invite members of the financial and business industry to participate in financing badly needed criminal justice and community education initiatives which they will be undertaking in the coming years.

Our communities have many such people and resources to call upon in the fight to improve the quality of justice and life in America.  Convicted felons, misdemeanants, defrocked professionals, drug and alcohol abusers, people who have resorted to violence in the past and since renounced it and many others can have something very valuable to offer to fix our broken world.

And we might just be surprised to find out that when we give this a try, the benefits will be exponential. When we accept people back and recognize their worth, we drive them to want to be even better and do more. Once we reinvest our trust in the fallen, in most cases, they will work and strive mightily to retain it.

Back in the mid-nineties former U.S. Senator Robert Torricelli was driven from office over what was a minor scandal involving his taking some expensive suits as gratuities from a foreign lobbyist. This young articulate, bright Harvard educated public servant, left the political scene with this question:

“When did we become such an unforgiving people?”

We can’t exactly remember when, but we have surely become an unforgiving, judgmental, fearful people.

The time has come for us to resume the story of human history and salvation by accepting back those among us who have for some reason, fallen out of favor with society, and  fallen from grace and putting them back to work for us.

We have serious problems confronting us in the areas of economic and social justice, bias, joblessness, homelessness, education, juvenile and criminal justice, prison reform, deficit reduction, taxation, poverty, hunger, peace and achieving stability for small businesses and homeowners.

So let’s get to work! We are running out of resources and time.

We at In Our Name extend to all of you our very best wishes for a very Merry Christmas, and a peaceful and purposeful New Year.

An Honest Man

Quote

Quote taken from John Adams by David McCullough, published in 2001 by Simon and Shuster, New York, NY (p.289)

Earlier, in a long, affectionate letter to his daughter, John had offered memorable advice on choosing a husband that, in sum, expressed what he valued most in a man and what he so struggled to be himself so much of his life:

Daughter!  Get you an honest man for a husband, and keep him honest.  No matter whether he is rich, provided he be independent.  Regard the honor and moral character of the man more than all other circumstances.  Think of no other greatness but that of the soul, no other riches but those of the heart.  An honest, sensible, humane man, above all the littleness of vanity and extravagances of imagination, laboring to do good rather than be rich, to be useful rather than make a show, living in modest simplicity clearly within his means and free from debts and obligations, is really the most respectable man in society, makes himself and all about him most happy!

Nelson Mandela 1918 – 2013

From a letter to Winnie Mandela in Kroonstad Prison, dated 1 February 1975, see pages 211-212 of Conversations with Myself by Nelson Mandela.

…the cell is an ideal place to learn to know yourself, to search realistically and regularly the process of your own mind and feelings.  In judging our progress as individuals we tend to concentrate on external factors such as one’s social position, influence and popularity, wealth and standard of education.  These are, of course, important in measuring one’s success in material matters and it is perfectly understandable if many people exert themselves mainly to achieve all these.  But internal factors may be even more crucial in assessing one’s development as a human being.  Honesty, sincerity, simplicity, humility, pure generosity, absence of vanity, readiness to serve others – qualities which are within easy reach of every soul – are the foundation of one’s spiritual life.  Development in matters of this nature is inconceivable without serious introspection, without knowing yourself, your weakness and mistakes.  At least, if for nothing else, the cell gives you the opportunity to look daily into your entire conduct, to overcome the bad and develop whatever is good in you.  Regular meditation, say about 15 minutes a day before you turn in, can be very fruitful in this regard.  You may find it difficult at first to pinpoint the negative features in your life, but the 10th attempt may yield rich rewards.  Never forget that a saint is a sinner who keeps trying.

Defending New York State’s Combat Veterans

A Public Defense Backup Center Proposal

 Contact:  Jonathan E. Gradess, Executive Director of New York State Defenders Association

 

Introduction  

In written testimony submitted to the New York State Senate Committee on Mental Health and Developmental Disabilities on February 29, 2012, the New York State Defenders Association (NYSDA) set out a proposal to develop a Military and Veterans Defense Project. In support of the proposal, the testimony set out in detail:

  • facts based on historical, medical, and social science studies and analyses of the effects of combat duty on some of the brave people who have served this country; and, in particular
  • the growth, in numbers and severity, of cases involving individuals whose military service has included duty that may have given rise to cognitive and behavioral issues leading to their involvement in the justice system; along with
  • the need to provide quality legal representation for those individuals, as well as appropriate diversion and other programs and procedures designed to ensure that detrimental effects of military service will be considered and ameliorated rather than ignored or exacerbated throughout legal proceedings.

During the testimony, discussion arose about the need to provide training on issues relating to military experience and subsequent involvement in the justice system. The Military and Veterans Defense Project, if established, would:

  • raise awareness of the problem among defense lawyers, other justice system stakeholders, local and state officials, and the public;
  • develop, and train lawyers on, best practices for the legal representation of clients whose military experiences may be relevant to their cases; and
  • develop, evaluate, and then educate others about proposals for justice system reforms to appropriately address these issues.

Experiences and capabilities of NYSDA and its Public Defense Backup Center that will make this Project work were also discussed.

Raising Awareness of Issues Relating to Veterans in the Justice System

Raising Awareness Among Defense Lawyers

In our testimony we briefly described New York State’s broken, underfunded, and understaffed public defense system, alluding to the fact that attorneys who lack time and even minimal investigative resources may be unaware that their client served in the military. Lawyers fighting in the trenches of that broken system may not even realize there are many ways in which a client’s military experience can be important to the case.

Therefore, training lawyers to properly represent clients whose combat experience is relevant to the case at hand begins with raising awareness that a combat history can matter. And it can matter at every step of representation.

The harmful effects of combat, such as Post Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI), can be powerful mitigating factors. This is true not only at sentencing but throughout a case, beginning at the charging stage. For example, advocating at this stage of a domestic violence case is often considered a futile task in the face of current policies intended to hold batterers accountable from the instant they are accused. But arguing for an exercise of prosecutorial charging discretion might take on new life when the argument is “the client was not violent toward his partner until he fell victim to PTSD after serving in Iraq; treating his disorder, not prosecuting him for a felony, is the way to keep others safe.”

Lawyers also need to be aware that combat-related problems may intersect with developing issues regarding police interrogation. As the number of recognized wrongful convictions has grown, so has the realization that individuals with mental disorders may be more susceptible to police interrogation techniques and so more prone to making false confessions. Even knowledgeable lawyers who have challenged the confessions of juveniles, individuals with developmental disabilities, and those diagnosed with classic mental illnesses may be unaware that clients who do not present obvious symptoms may be suffering from combat-related conditions that would cast doubt on the accuracy or voluntariness of their admissions to police.

As one last example, lawyers who know and have argued that sending people with mental illness to prison is both unfair and generally counterproductive may not know that specific arguments exist for the soldier with PTSD. As noted in our written testimony, the prison environment reinforces this disorder, encouraging the hypervigilance, paranoia, aggression, and emotional numbness that are its hallmarks.

NYSDA already has the infrastructure for disseminating information to public defense lawyers and programs statewide. Information collected or developed by the Military and Veterans Defense Project can be published in NYSDA’s newsletter and made available on the Web at www.nysda.org. Presentations by Project staff can be made and discussed at statewide and regional convenings of Chief Defenders, providing information to the field and in turn giving the Project insight into what further information public defense providers need.

Raising Awareness Among Other Justice System Stakeholders

Defense advocacy relating to combat-related conditions, in specific cases and in support of appropriate procedures and programs to address such cases, depends in part on the receptivity of those to whom advocacy is directed. Educating prosecutors, judges, and probation and parole officers generally about the problems faced by many veterans would equip them to appreciate and more accurately evaluate case-specific arguments. But public defense lawyers and programs lack the time and resources to collect and pass along data and information from the large and growing body of medical and social science literature describing these issues. And especially in those numerous localities where public defense programs are not considered full partners in the public safety/justice system, the information they do provide may fall on deaf ears.

The Military and Veterans Defense Project can provide local public defense providers and bar associations with the materials they need to respond to the concerns of their local justice system stakeholders. NYSDA can call on the collaborative partnerships developed in the course of the 2007 planning grant described in our initial written testimony (and build additional partnerships) to demonstrate the credibility of proposals for addressing the problems of returning military personnel ensnared in the justice system.

Raising Awareness Among Local and State Officials and the Public

NYSDA’s contract with the State to run the Public Defense Backup Center requires us to “conduct training programs, conferences and seminars for public defense attorneys and the public, including a public education effort concerning the criminal justice system.” The Military and Veterans Defense Project will broaden our existing efforts.

Raising Awareness in the Business Community

In many respects the business community and financial industry have a special obligation for seeing to the needs of our returning veterans. This is especially true when it comes to protecting the liberty interests of the men and woman who put their lives on the line to defend our freedom, returning veterans, whose combat related post-traumatic stress disorder and brain injuries lead to violence and crime and result in their arrest, prosecution, and imprisonment.

The life force of our free enterprise and market system is the vigilant maintenance of our cherished democratic institutions. Almost fifty-three years ago, President John F. Kennedy, himself a decorated veteran of World War II told us that “the cost of freedom is always high, but Americans have always paid it.” We must never forget that the price has been paid with the lives of our service men and women and the cost is not limited to those who have died, but includes those who have survived and are continuously burdened by severe, sometimes unbearable, service-related physical and mental disorders. But not for the service of our returning veterans, the vast wealth and endless opportunities present in the American economy would not exist. Entrepreneurs, business men and women, bankers, investors, and financiers could not transact and prosper without the guarantees of liberty secured for us by our fighting men and women.

Every time a veteran is arrested and prosecuted for a crime involving service-related PTSD or TBI and made to confront our criminal justice system without a good defense lawyer who is well versed on the special defenses available to veterans, we as a people are denying that service member the guaranty of the same rights and protections he or she fought to preserve for us. And each time we ignore the deep psychological trauma and injury caused by combat conditions and fail to balance loyalty and mercy with justice, we turn our backs on those who paid the steep price of liberty for us and made it possible for us to live prosperous and free American lives.

At NYSDA we plan to partner with the business and financial community to ensure that there is ample funding for the work we do for justice and for our veterans. We ask our colleagues in the business community to consider making a tax- deductible donation to the New York State Defenders Association.

Training Lawyers on Best Practices for Cases of Military and Veteran Clients

As already noted, training public defense attorneys is a part of NYSDA’s contractual duty to the State. The Association is designated an “Accredited Provider” by the New York State Continuing Legal Education Board, and provides a variety of CLE programs. Using information obtained during its earlier planning grant and many additional materials obtained and stored as part of the Backup Center’s clearinghouse function, the Military and Veterans Defense Project could quickly begin training lawyers on some of the basic issues discussed here. But because defense of returning military personnel and veterans in state courts is very much a developing field, the Project would also develop best practices based on field experience gained by working with local and national defense lawyers and clients on difficult cases involving these issues.

Providing Training on the Representation of Military and Veteran Clients

The awareness campaign discussed above and NYSDA’s reputation for providing relevant, high-quality training will generate initial audiences for CLE training on the representation of clients whose military experiences may be germane to their cases. Venues for such CLEs will include NYSDA’s statewide annual conference, other annual regional training events including those held in Rochester and New York City, as well as regional and local trainings addressing topics central to representing veterans.[1] Initial training could include PTSD and TBI, obtaining and interpreting military records (including determining tour length and redeployment), and existing programs such as veterans courts and veterans diversion projects.

Military and Veterans Defense Project staff will identify increasingly specific topics and develop curricula for addressing them. Such topics might include:

  • how military culture can create social and emotional barriers to reporting symptoms and affect the way clients react to the accusations against them, to their civilian lawyers, and to other facets of their cases;
  • the use of veteran “mentors” to increase the willingness of veteran clients to agree to, and to improve their ability to successfully complete, programs as a part of plea bargains or supervision conditions;
  • the effect of criminal convictions on eligibility for veterans benefits and services and other collateral consequences affecting military or veteran clients;
  • the distinctive challenges faced by Guard and Reserve soldiers; and
  • family law, immigration law, or other legal issues related to or affecting military or veteran clients.

Additionally, the backup support services offered by the Military and Veterans Defense Project will identify other topics on which CLE training is needed, including “best practices” as those are identified and developed as described below.

Identifying and Developing Best Practices

Six years have passed since NYSDA obtained and used a planning grant to, among other things, routinely collect information on existing programs and practices relating to defense of veterans. The Military and Veterans Defense Project will update that information and materials sporadically collected since then, drawing on the experience and insights from existing veterans courts and other programs and state and nationwide research. The Project will continue to identify new practices and information as these arise.[2]

The Project will retain on staff, and partner with, individuals who will serve as attorneys and consultants in cases where military and veteran clients face serious prosecutions and cases that present consequences unique to such clients. Staff and partners will include attorneys with military experience and people with detailed historical knowledge of recent American conflicts and their effects on combatants. Clinicians capable of assessing and diagnosing clients will also be involved. These services will provide public defense lawyers and clients statewide with resources unavailable or unaffordable locally. In turn, this work will help the Project identify and develop best practices.

The “feedback” technique of both sharing and gaining knowledge and insight while working with attorneys who request assistance is already widely used at the Backup Center, where research for and information from consultations with attorneys who request assistance then becomes part of the clearinghouse of information staff lawyers can draw upon in responding to future requests. Such recycling and refining of experience is particularly productive when – as here –  a specific area of law or representation is involved.[3]

Training Lawyers on Best Practices

As best practices are identified, developed, and refined, the Military and Veterans Defense Project will offer CLE trainings, produce written guidelines and advisories, and disseminate this information. NYSDA’s existing information-sharing avenues (newsletter, website, etc.) will be employed.

In addition, the Project will collaborate with other partners, including state and local bar associations and veterans services providers. NYSDA, the only statewide entity that focuses on improving public defense services and training public defense lawyers, is the logical choice to spearhead these partnerships. Because the same trauma-related conditions that result in some combat veterans’ involvement in the justice system also result in unemployment, poverty, and homelessness, public defense lawyers represent a large portion of such individuals. At the same time, the Military and Veterans Defense Project will seek to work with all others who represent or otherwise serve veterans to ensure that all veterans who become enmeshed in the justice system receive the expert, respectful representation they deserve.

Changing the law to help veterans in trouble

At NYSDA we are deeply alarmed by the number of veterans who return home from war suffering service-related combat injuries after receiving no transitional counseling or deprogramming. Many face suicide; others often find themselves repeating the violence and unrestrained aggressive behaviors for which they were combat trained. All this is exacerbated by the current practice of multiple deployments of both active duty and reserve personnel.

Reintegration is an endemic problem for nearly all veterans, but for those with physical and mental disorders the return home can be strewn with obstacles and legal turmoil. Veterans face difficulty obtaining training and education, and often face unemployment and homelessness. These are aggravated by the signature injuries of our recent conflicts, PTSD and TBI, the behavioral symptoms of which can result in assaultive behavior, domestic violence, and substance abuse from self-medication. 

To address this serious problem facing veterans in our state justice system, NYSDA has worked with sponsors in both houses in the New York State Legislature on a bill (A.7529/S.5624) which would create Article 217 of the Criminal Procedure Law to allow for mandatory alternative resolution of criminal proceedings involving veterans. The bill provides for a series of diversionary methods for pre-trial diagnosis of veterans to ascertain whether or not − and to what extent – service-related PTSD, TBI, or other injuries played a role in the conduct leading to the veteran’s arrest and prosecution. Once it is determined that a demonstrable connection exists, various procedures are employed to divert the case from the criminal justice system into therapy and counseling.

 Crime and violence against neighbors and family members deprive surviving veterans of a sense of self, and the honor that was so much a part of their lives in the service of our country.

We are hopeful that the bill which follows will advance through the legislative process and we ask you to contact your Assemblymember and State Senator and urge them to support NYSDA’s efforts to restore the returning veteran whose service-related PTSD, TBI, or other injuries have led him or her to the courthouse door.

The following is the bill: 

S T A T E   O F   N E W   Y O R K

       ________________________________________________________________________

                                          7529

                               2013-2014 Regular Sessions

                                  I N  A S S E M B L Y

                                      May 23, 2013

                                      ___________

 Introduced by M. of A. BRINDISI — read once and referred to the Committee on Codes

 AN  ACT to amend the criminal procedure law, in relation to establishing an alternative resolution program for veterans  accused  of  certain felonies

          THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1. Title I of the criminal procedure law is amended by adding a new article 217 to read as follows:

                                   ARTICLE 217

 ALTERNATIVE RESOLUTION OF CRIMINAL PROCEEDINGS                            INVOLVING VETERANS

 SECTION 217.00 DEFINITIONS.

 217.05 ALTERNATIVE RESOLUTION PROGRAM; COURT PROCEDURES.

 S 217.00 DEFINITIONS.

THE FOLLOWING DEFINITIONS ARE APPLICABLE TO THIS ARTICLE:

1.  “VETERAN”  MEANS  A  CURRENT OR FORMER MEMBER OF THE UNITED STATES MILITARY, INCLUDING THE MILITARY RESERVES OR A STATE’S  NATIONAL  GUARD, WHO:

 (A) SERVED IN A COMBAT THEATRE OR COMBAT ZONE; OR

 (B) EXPERIENCED A TRAUMATIC EVENT DURING MILITARY SERVICE; OR

 (C) WAS PHYSICALLY OR MENTALLY INJURED DURING MILITARY SERVICE.

2. “ELIGIBLE VETERAN” MEANS:

(A)  A  VETERAN  WHO IS ACCUSED OF ONE OR MORE OFFENSES, AS DEFINED IN  SUBDIVISION ONE OF SECTION 10.00 OF THE PENAL LAW;

(B) A VETERAN WHO SUFFERS FROM POSTTRAUMATIC  STRESS  DISORDER,  OTHER MENTAL  ILLNESS  OR CONDITION, TRAUMATIC BRAIN INJURY, OTHER PHYSICAL OR MENTAL INJURY, ALCOHOL OR SUBSTANCE ABUSE OR  ADDICTION  OR  COMBINATION THEREOF,  THAT  WAS,  AT  LEAST  IN  PART,  CAUSED BY, EXACERBATED BY OR  RESULTED FROM THE VETERAN’S SERVICE IN A COMBAT THEATRE OR  ZONE,  OR  A  TRAUMATIC  EVENT OR A PHYSICAL OR MENTAL INJURY DURING MILITARY SERVICE; AND 

(C)  A  VETERAN WHOSE SPECIFIED ILLNESS, INJURY OR OTHER CONDITION MAY HAVE PLAYED A ROLE IN THE COMMISSION OF  ONE  OR  MORE  OF  THE  CHARGED OFFENSES.

 3. “ELIGIBLE VETERAN EVALUATION” MEANS A WRITTEN ASSESSMENT AND REPORT BY  A COURT-APPROVED ENTITY OR LICENSED HEALTH CARE PROFESSIONAL EXPERIENCED IN THE  TREATMENT OF INDIVIDUALS  SUFFERING  FROM POSTTRAUMATIC STRESS  DISORDER, OTHER MENTAL ILLNESSES OR CONDITIONS, TRAUMATIC BRAIN INJURY, OTHER PHYSICAL OR MENTAL INJURIES, ALCOHOL OR SUBSTANCE ABUSE OR ADDICTION, OR A COMBINATION THEREOF, OR BY AN ENTITY CERTIFIED BY THE STATE DEPARTMENT OF HEALTH, THE STATE OFFICE OF MENTAL HEALTH, THE STATE OFFICE  OF ALCOHOLISM AND SUBSTANCE ABUSE SERVICES, OR THE UNITED STATES DEPARTMENT OF VETERANS AFFAIRS AS EXPERIENCED IN THE TREATMENT OF SUCH ILLNESSES, INJURIES, OR CONDITIONS, WHICH SHALL INCLUDE:

(A)  AN EVALUATION AS TO WHETHER THE DEFENDANT IS SUFFERING FROM POST-TRAUMATIC STRESS DISORDER, OTHER MENTAL ILLNESSES OR  CONDITIONS,  TRAUMATIC  BRAIN  INJURY,  OTHER  PHYSICAL  OR  MENTAL  INJURIES, ALCOHOL OR  SUBSTANCE ABUSE OR ADDICTION OR A COMBINATION THEREOF; 

(B) WHETHER  THE  DEFENDANT’S  POSTTRAUMATIC  STRESS  DISORDER,  OTHER MENTAL  ILLNESS  OR CONDITION, TRAUMATIC BRAIN INJURY, OTHER PHYSICAL OR MENTAL INJURY, ALCOHOL OR SUBSTANCE ABUSE OR ADDICTION OR A COMBINATION THEREOF  WAS,  AT  LEAST  IN PART, CAUSED BY, EXACERBATED BY OR RESULTED FROM THE VETERAN’S SERVICE IN A COMBAT THEATRE OR ZONE  OR  A  TRAUMATIC EVENT OR A PHYSICAL INJURY DURING MILITARY SERVICE;

(C)  AN ASSESSMENT OF WHETHER THE DEFENDANT’S ILLNESS, INJURY OR OTHER CONDITION, IF ANY, MAY HAVE PLAYED A ROLE IN THE COMMISSION  OF  ONE  OR MORE OF THE CHARGED OFFENSES;

(D)  A RECOMMENDATION AS TO WHETHER THE DEFENDANT’S ILLNESS, INJURY OR OTHER CONDITION, IF ANY, COULD BE EFFECTIVELY ADDRESSED BY THE  ALTERNATIVE RESOLUTION PROGRAM IN ACCORDANCE WITH THIS ARTICLE; AND

(E)  ANY  OTHER  INFORMATION,  FACTOR, CIRCUMSTANCE, OR RECOMMENDATION DEEMED RELEVANT BY THE ASSESSING ENTITY OR SPECIFICALLY REQUESTED BY THE COURT.

S 217.05 ALTERNATIVE RESOLUTION PROGRAM; COURT PROCEDURES. DETERMINATION OF VETERAN STATUS. NOTWITHSTANDING  ANY  LAW  TO  THE     CONTRARY, AT ANY TIME AFTER THE ARRAIGNMENT OF A DEFENDANT, BUT PRIOR TO THE  ENTRY OF A PLEA OF GUILTY OR THE COMMENCEMENT OF TRIAL, THE DEFENDANT CLAIMS TO BE A VETERAN, AS DEFINED IN  SUBDIVISION  ONE  OF  SECTION 217.00  OF  THIS ARTICLE, THE COURT SHALL ORDER THE DEFENDANT TO PROVIDE WRITTEN EVIDENCE THAT THE DEFENDANT IS  A  VETERAN.  SUCH EVIDENCE MAY INCLUDE,  BUT IS NOT LIMITED TO, RECORDS OF THE UNITED STATES DEPARTMENT DEFENSE, THE UNITED STATES DEPARTMENT OF VETERANS AFFAIRS OR A  STATE VETERANS AGENCY.

2.  THE COURT, UPON REVIEW OF THE EVIDENCE PRESENTED AND ANY TESTIMONY OFFERED BY THE DEFENDANT, SHALL DETERMINE  BY  A  PREPONDERANCE  OF  THE EVIDENCE  WHETHER  THE DEFENDANT IS A VETERAN, AS DEFINED IN SUBDIVISION ONE OF SECTION 217.00 OF THIS ARTICLE.

3. DETERMINATION OF ELIGIBLE VETERAN STATUS.

(A) IF THE COURT DETERMINES THAT THE DEFENDANT IS A VETERAN, THE COURT SHALL ORDER AN EXAMINATION OF THE DEFENDANT BY AN ELIGIBLE VETERAN EXAMINER, AS DEFINED IN SUBDIVISION THREE OF SECTION 217.00 OF THIS ARTICLE, TO EVALUATE WHETHER THE DEFENDANT IS AN ELIGIBLE VETERAN, AS DEFINED IN SUBDIVISION  TWO  OF SECTION 217.00 OF THIS ARTICLE. THE DEFENDANT SHALL PROVIDE A WRITTEN AUTHORIZATION, IN COMPLIANCE WITH THE REQUIREMENTS  OF ANY  APPLICABLE  STATE OR FEDERAL LAWS, RULES OR REGULATIONS AUTHORIZING DISCLOSURE OF THE RESULTS OF THE ASSESSMENT TO THE DEFENDANT’S ATTORNEY, THE PROSECUTOR, THE COURT, AUTHORIZED COURT PERSONNEL AND OTHER INDIVIDUALS SPECIFIED IN SUCH AUTHORIZATION FOR THE SOLE PURPOSE OF DETERMINING WHETHER THE DEFENDANT IS AN ELIGIBLE VETERAN.

(B)  UPON RECEIPT OF THE ELIGIBLE VETERAN EVALUATION REPORT, THE COURT SHALL PROVIDE A COPY TO THE DEFENDANT AND THE PROSECUTOR.

(C) THE COURT SHALL, UPON THE REQUEST OF EITHER  PARTY  OR  WHERE  THE ELIGIBLE  VETERAN  EVALUATION  INDICATES THAT THE DEFENDANT MAY NOT MEET THE DEFINITION OF AN ELIGIBLE VETERAN, ORDER A HEARING ON THE  ISSUE  OF WHETHER  THE  DEFENDANT  IS  AN  ELIGIBLE VETERAN. IF THE COURT ORDERS A  HEARING, THE HEARING MUST BE HELD AS SOON AS PRACTICABLE SO AS TO FACILITATE EARLY INTERVENTION IN THE EVENT THE DEFENDANT IS FOUND  TO  BE  AN ELIGIBLE VETERAN. AT THE HEARING, THE COURT MAY CONSIDER ORAL OR WRITTEN ARGUMENTS,  TAKE  TESTIMONY  FROM WITNESSES OFFERED BY EITHER PARTY, AND CONSIDER ANY RELEVANT EVIDENCE INCLUDING, BUT NOT LIMITED  TO,  EVIDENCE THAT:

(I)  THE  DEFENDANT  SUFFERS FROM POSTTRAUMATIC STRESS DISORDER, OTHER MENTAL ILLNESS OR CONDITION, TRAUMATIC BRAIN INJURY, OTHER  PHYSICAL OR MENTAL  INJURY,  ALCOHOL  OR SUBSTANCE ABUSE OR ADDICTION OR COMBINATION THEREOF;

(II) SUCH ILLNESS, INJURY OR OTHER CONDITION WAS, AT  LEAST  IN  PART,   CAUSED  BY, EXACERBATED BY OR RESULTED FROM THE DEFENDANT’S SERVICE IN A COMBAT THEATRE OR ZONE OR A TRAUMATIC EVENT  OR  A  PHYSICAL  OR  MENTAL INJURY DURING MILITARY SERVICE; AND

(III)  SUCH  ILLNESS, INJURY OR OTHER CONDITION MAY HAVE PLAYED A ROLE IN THE COMMISSION OF ONE OR MORE OF THE CHARGED OFFENSES.

(D) THE COURT SHALL CONSIDER AND MAKE FINDINGS OF FACT WITH RESPECT TO WHETHER:

 (I) THE DEFENDANT SUFFERS FROM POSTTRAUMATIC  STRESS  DISORDER,  OTHER MENTAL  ILLNESS  OR CONDITION, TRAUMATIC BRAIN INJURY, OTHER PHYSICAL OR MENTAL INJURY, ALCOHOL OR SUBSTANCE ABUSE OR  ADDICTION  OR  COMBINATION THEREOF;

(II)  SUCH  ILLNESS,  INJURY OR OTHER CONDITION WAS, AT LEAST IN PART,  CAUSED BY, EXACERBATED BY OR RESULTED FROM THE DEFENDANT’S SERVICE IN  A COMBAT THEATRE OR ZONE, OR A TRAUMATIC EVENT OR A PHYSICAL INJURY DURING MILITARY SERVICE;

(III)  SUCH  ILLNESS, INJURY OR OTHER CONDITION MAY HAVE PLAYED A ROLE IN THE COMMISSION OF ONE OR MORE OF THE CHARGED OFFENSE OR OFFENSES; AND

(IV) IF THE DEFENDANT IS CHARGED WITH ONE OR MORE CLASS  A,  B,  OR  C  FELONIES,  INSTITUTIONAL  CONFINEMENT  OF THE DEFENDANT IS OR MAY NOT BE NECESSARY FOR THE PROTECTION OF THE PUBLIC.

 4. NOTWITHSTANDING ANY LAW TO THE CONTRARY, WHEN THE COURT DETERMINES, PURSUANT TO PARAGRAPH (D) OF SUBDIVISION THREE OF THIS SECTION, THAT THE DEFENDANT IS AN ELIGIBLE VETERAN, OR WHEN  THE  PARTIES  AND  THE  COURT AGREE  TO A FINDING THAT THE DEFENDANT IS AN ELIGIBLE VETERAN, THE COURT MUST:

(A) IF THE DEFENDANT IS CHARGED WITH ONE OR  MORE  OFFENSES,  NONE  OF WHICH  IS  A CLASS A, B, OR C FELONY, ALLOW THE DEFENDANT TO PARTICIPATE IN THE ALTERNATIVE RESOLUTION PROGRAM OFFERED BY THIS ARTICLE, WHICH  IS DESIGNED  TO TREAT THE ELIGIBLE VETERAN’S POSTTRAUMATIC STRESS DISORDER, OTHER MENTAL ILLNESS OR CONDITION, TRAUMATIC BRAIN INJURY,  OTHER  PHYSICAL  INJURY,  ALCOHOL  OR  SUBSTANCE ABUSE OR ADDICTION, OR COMBINATION THEREOF, WITHOUT A PLEA OF GUILTY; OR

(B) IF THE DEFENDANT IS CHARGED WITH ONE OR MORE  CLASS  A,  B,  OR  C  FELONY  OFFENSES,  ALLOW THE DEFENDANT TO PARTICIPATE IN THE ALTERNATIVE RESOLUTION PROGRAM OFFERED BY THIS ARTICLE, WHICH IS DESIGNED  TO  TREAT ELIGIBLE  VETERAN’S  POST-TRAUMATIC  STRESS DISORDER,  OTHER MENTAL ILLNESS OR CONDITION, TRAUMATIC BRAIN  INJURY,  OTHER  PHYSICAL  INJURY, ALCOHOL OR SUBSTANCE ABUSE OR ADDICTION, OR COMBINATION THEREOF:

(I) WITHOUT A PLEA OF GUILTY; OR

(II) UPON ENTRY OF A PLEA OF GUILTY TO THE CHARGE OR CHARGES; OR

(III) UPON ENTRY OF A PLEA OF GUILTY TO A LESSER CHARGE.

5. ALTERNATIVE RESOLUTION PROGRAM; TREATMENT PLAN.

(A)  THE  COURT  SHALL  ISSUE  AN  ORDER GRANTING PARTICIPATION IN THE   ALTERNATIVE RESOLUTION PROGRAM THAT SETS FORTH: (I)  THE  TERMS,  CONDITIONS,  AND  LENGTH  OF  THE ELIGIBLE VETERAN’S TREATMENT PLAN; (II) THE FINAL DISPOSITION OF THE PROCEEDING AS SET FORTH IN SUBDIVISION  SIX  OF THIS SECTION; AND (III) THE DISPOSITION OF THE PROCEEDING IF THE DEFENDANT FAILS TO SATISFY THE TERMS AND CONDITIONS OF THE TREATMENT PLAN.

(B)  TERMS  AND CONDITIONS. IN DETERMINING THE TERMS AND CONDITIONS OF  THE TREATMENT PLAN, THE COURT SHALL CONSIDER THE RECOMMENDATIONS IN  THE ELIGIBLE  VETERAN  EVALUATION  REPORT  AND  THE  RECOMMENDATIONS  OF THE DEFENDANT’S HEALTH CARE  PROVIDERS,  IF  ANY.  THE  TREATMENT  PLAN  MAY REQUIRE  THE  DEFENDANT,  WITH THE ASSISTANCE OF TREATMENT PROVIDERS, TO DEVELOP A PLAN FOR ONGOING RECOVERY AFTER DISPOSITION  OF  THE  CRIMINAL CASE.

(C) LENGTH OF TREATMENT PLAN.

(I)  WHERE THE DEFENDANT IS CHARGED WITH ONE OR MORE OFFENSES, NONE OF WHICH IS A CLASS A, B, OR C FELONY, THE TREATMENT PLAN  MAY  NOT  EXTEND BEYOND  TWELVE MONTHS. HOWEVER, UPON CONSENT OF THE DEFENDANT, THE COURT MAY EXTEND A TREATMENT PLAN FOR UP TO TWELVE ADDITIONAL MONTHS.

(II) WHERE THE DEFENDANT IS CHARGED WITH ONE OR MORE CLASS A, B, OR C FELONY  OFFENSES,  THE  TREATMENT  PLAN  MAY  NOT EXTEND BEYOND EIGHTEEN MONTHS. HOWEVER, UPON CONSENT OF THE DEFENDANT, THE COURT MAY  EXTEND  A TREATMENT PLAN FOR UP TO TWELVE ADDITIONAL MONTHS.

(D)  THE DEFENDANT SHALL AGREE ON THE RECORD OR IN WRITING TO ABIDE BY THE TERMS AND CONDITIONS OF THE TREATMENT PLAN ORDERED PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION.

6. FINAL DISPOSITION.

(A) ADJOURNMENT IN CONTEMPLATION OF DISMISSAL. NOTWITHSTANDING ANY LAW TO THE CONTRARY, IF THE DEFENDANT  IS  ALLOWED  TO  PARTICIPATE  IN  THE PROGRAM PURSUANT TO PARAGRAPH (A) OF SUBDIVISION FOUR OF THIS SECTION OR SUBPARAGRAPH  (I)  OF PARAGRAPH (B) OF SUBDIVISION FOUR OF THIS SECTION, UPON THE DEFENDANT’S WRITTEN AGREEMENT TO ABIDE BY THE TERMS AND  CONDITIONS  OF  THE  TREATMENT  PLAN, THE COURT SHALL GRANT AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL.

(I) IF THE CASE IS NOT RESTORED TO THE CALENDAR DURING THE TIME PERIOD  OF THE TREATMENT PLAN, THE ACCUSATORY INSTRUMENT IS, AT  THE  EXPIRATION OF  SUCH  TERM,  DEEMED  TO  HAVE  BEEN  DISMISSED IN THE FURTHERANCE OF JUSTICE.

(II) UPON DISMISSAL OF THE  ACCUSATORY  INSTRUMENT,  THE  COURT  SHALL  ENTER AN ORDER DIRECTING THAT THE RECORD OF SUCH ACTION OR PROCEEDING BE SEALED AND DIRECTING THE CLERK OF THE COURT WHEREIN SUCH CRIMINAL ACTION OR  PROCEEDING  WAS TERMINATED TO IMMEDIATELY NOTIFY THE COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE SERVICES AND THE HEADS OF ALL APPROPRATE POLICE DEPARTMENTS AND  OTHER  LAW  ENFORCEMENT  AGENCIES  THAT  THE ACTION  HAS  BEEN  TERMINATED  AND  THAT  THE  RECORD  OF SUCH ACTION OR PROCEEDING SHALL BE SEALED. UPON RECEIPT OF SUCH NOTIFICATION, THE AGENCY, DIVISION, OR DEPARTMENT SHALL COMPLY WITH THE PROVISIONS OF SUBDIVISION ONE OF SECTION 160.50 OF THIS CHAPTER.

(B) FOR ALL OTHER DEFENDANTS,  UPON  SATISFACTION  OF  THE  TERMS  AND  CONDITIONS OF THE TREATMENT PLAN, THE FINAL DISPOSITION MAY INCLUDE, BUT IS  NOT  LIMITED  TO: (I) REQUIRING THE DEFENDANT TO UNDERGO A PERIOD OF INTERIM PROBATION  SUPERVISION  AND,  UPON  THE  DEFENDANT’S  SUCCESSFUL COMPLETION  OF  THE  INTERIM PROBATION SUPERVISION TERM, NOTWITHSTANDING THE PROVISION OF ANY OTHER LAW, PERMITTING THE DEFENDANT TO WITHDRAW HIS OR HER GUILTY PLEA AND DISMISSING THE INDICTMENT; OR (II) REQUIRING THE DEFENDANT TO UNDERGO A PERIOD OF INTERIM PROBATION SUPERVISION AND, UPON SUCCESSFUL  COMPLETION  OF  THE  INTERIM  PROBATION  SUPERVISION   TERM, NOTWITHSTANDING THE PROVISION OF ANY OTHER LAW, PERMITTING THE DEFENDANT TO WITHDRAW HIS OR HER GUILTY PLEA, ENTER A GUILTY PLEA TO A MISDEMEANOR OFFENSE  AND  SENTENCING  THE DEFENDANT IN ACCORDANCE WITH THE TREATMENT  PLAN ORDER, WHICH MAY INCLUDE A PERIOD OF PROBATION SUPERVISION PURSUANT TO SECTION 65.00 OF THE PENAL LAW; OR (III) ALLOWING  THE  DEFENDANT  TO WITHDRAW HIS OR HER GUILTY PLEA AND DISMISSING THE INDICTMENT.

S 2. This act shall take effect immediately.

 

Developing, Evaluating, and Educating Others About Appropriate Justice System Reforms

Quality legal representation is only one aspect of what individuals need when threatened with loss of liberty for behavior stemming from military experiences. As the rise of veterans courts and other specialized programs illustrate, there is a need for system-wide planning and implementation of reforms to ensure appropriate handling and disposition of veterans’ cases. The Military and Veterans Defense Project will therefore not only provide support and technical assistance to fledgling pilot programs being considered by defender offices but will also work for broader reform.

NYSDA’s Backup Center has long been contractually charged with identifying problem areas and proposing solutions “in the form of specific recommendations to the Governor, the Legislature, the Judiciary and other appropriate instrumentalities.” Therefore, in addition to its efforts to raise public awareness of issues involving veterans in the justice system, the Military and Veterans Defense Project will develop reform proposals, evaluate proposals by others, and work to educate appropriate officials about such reforms.

Our testimony before the New York State Senate Committee on Mental Health and Developmental Disabilities was but one example of NYSDA’s many appearances at Legislative and other hearings. We have presented testimony not only on public defense budget issues but on other matters affecting public defense clients and lawyers, from jury pool diversity to the mental health problems associated with confinement of prisoners in Special Housing Units. NYSDA has also produced and published a variety of reports and studies about public defense problems, such as the lack of appropriate, consistent procedures for determining the financial eligibility of potential clients; the lack of state accountability in how state funds for public defense were spent prior to the creation of the Office of Indigent Legal Services; and many technical issues, all available on our website. http://www.nysda.org/Reports&Studies.html. The Backup Center’s research capabilities, experience, and status create a perfect mix for a project to assist government officials and the public in understanding and acting to fix problems in how the justice system currently handles the cases of military personnel and veterans whose service-related experiences underlie those cases.

 

Staffing and Budget for the Military and Veterans Defense Project

A staff of four full-time employees is envisioned: project director, staff attorney, researcher, and support staff. The Project will also bring on as consultants one or more people knowledgeable about military law, custom, and culture and others with mental health and/or social work training. A project budget is attached.

 

Conclusion

Based on the above and on our initial testimony, NYSDA seeks funding for the Military and Veterans Defense Project, including its many training components.


[1] NYSDA frequently co-sponsors local and regional training events with the courts, federal defender programs, local public defense programs, and bar associations.

[2] Among developments may be new medical techniques for identifying heretofore “hidden” physical injuries that may contribute to behavioral changes. See for example, Lauran Neergaard, “Finding unseen damage of traumatic brain injury,” Times Union (Albany, NY), 3/2/2012. http://www.timesunion.com/default/article/Finding-unseen-damage-of-traumatic-brain-injury-3374574.php.

[3] NYSDA’s Criminal Defense Immigration Project (CDIP) provides a prime example of the success this process can lead to; CDIP’s expertise is in great demand not only by attorneys seeking individual assistance in representing foreign national clients but also for formal CLE training. Among many other areas in which Backup Center staff have developed and then shared expertise through a combination of research and attorney consultations that revealed issues arising in the field are the implementation of legislation mandating ignition interlock devices in driving-while-intoxicated cases, implementation of the Drug Law Reform Acts, and implementation of other sentencing law changes.

Equity Parole Review Seminar

The following was a Keynote Address that Jonathan E. Gradess, the Executive Director of the New York State Defenders Association, gave at the Eastern New York Correctional Facility in Napancoh, New York on January 30, 1982.

In my heart I believe that  early this morning deep in your hearts some of you must have felt that you could not stomach one more white man from outside these walls standing  up to address you with clichés.

Some others of you, I trust, at 7:00 this morning had only one thought in your mind about this symposium-how to use it as a tool to gain freedom.

Some of you I am sure in the midnight soul of your imprisonment conceive of it as crazy that an outsider should give the keynote address here.

Here being the place-the prison-where 945 human beings live away the moments of their lives. 945 people who have within themselves the most important speech ever to be delivered. Each of you has a speech to give. It is inside of you, and I have come here today to ask you to deliver it.

It is said that, “In the land of the blind the one-eyed man is king.” I think, however, that in the land of the blind the one-eyed man is a freak. And here, in this alien environment, outsiders are freaks. Lawyers are freaks. Government officials are freaks. Anyone who isn’t doing time is a freak.

At the end of this symposium, when the correctional officers hustle the invited guests out the door, most of us will go home to sleep in houses or apartments that have heat. And light. And warmth. Where the sheets are clean and the pillows are fluffed. Where we are free. When we reach deep sleep, we sleep proud of our good day’s work on behalf of you.

So I say to you that our words, the words of invited guests and supporters, should be given only the weight they deserve-must be given only the weight they deserve. Anyone who stands on this platform should be held accountable for what they say and accountable for what they do.

If this were the Rotary Club, the Lions Club, the Kiwanis Club that is the way it would be. Well this is Napanoch Prison and that is the way it should be.

If you sleep in a nine by six room in a state paid prison built with the taxes of your mother and your father, your children and yourself-if you sleep in such a place–48 or 50 square feet-if you live in such a place and listen to clichés from this platform, and you don’t demand accountability from the speakers, you don’t yet know the address of the prison in which you reside.

I have come to ask you for your help. And I want to tell you a little bit of the “how” and the “why” of that.  I didn’t come to you first. No one who wants to transform the face of New York’s criminal justice system goes to a place in which the powerless and the broken are housed. At least they don’t go there first.

It is the job of those of us who want to change this system-and I don’t mean tinker with it-I mean tum it on its head-it is our job to translate for you sometimes because you have been restrained in your efforts to do that.  It is hard to carry the message of prisons and prison problems without help from you and your families.

In Albany they call us, sometimes, the “hoodlum lobby.” Because we do not deliver the votes of a union, because we do not come with the wealth of the banks, because we do not ride with those in political favor, our voice is not easily heard. And our message about how very, very wrong prisons are as institutions is sometimes easily ignored.

Any civilization that wanted  to change its penal system, any nation state that wanted to change its correctional system, any one of these United States that wanted to reform its criminal  justice system would come first here. Representatives would not be sent to great universities. They would not seek the public comment of the reformers and the sociologists. They would come first here or to one of the 32 other prisons just like this. And they wouldn’t dispatch a team of investigators. They wouldn’t come under the color of the protection of an invitation. They wouldn’t come in broad daylight. If government cared, it would have a constant presence in the halls of this building. It would be living up to its obligation to make you secure in the walls of this prison. It would dispatch its most caring and useful citizens to investigate and respond quickly to every complaint. And soon, if government cared, there would be no need for complaints. For soon the inevitable brutality of prison, not a philosophical issue but a gut issue, would be the daily fare of policymakers who cared.

There is no doubt in my mind that if Hugh Carey, the Governor; and Mario Cuomo, the Lieutenant Governor; and Edward Regan, the Comptroller; and Robert Abrams, the Attorney General; and Basil Patterson, the Secretary of State; and Lawrence Cooke, the Chief Judge of the Court of Appeals; and Stanley Fink, the Speaker of the Assembly; and Warren Anderson, the Majority Leader of the Senate; and the 208 other members of the New York State Senate and Assembly, if they could spend a year with you, or even a month, or perhaps even a week, not under color of an invitation,  but living as you live, there is absolutely no doubt in my mind that  the penal system of New York State would be transformed overnight.

They would see the truth, and the truth would set them free.

They would see that we have imprisoned guards and inmates alike in concentration camps of fear. They would feel the four o’clock in the afternoon agony of an inmate on work release who has to return to the institution as a dog. They would come to know the pain of men and women with long, hard, minimum sentences the pain that those men and women feel when they think of their children who grow ten years without father, or without mother.

I didn’t come first to you. I went first, with others, in one way or another, to the public officials I mentioned. I will tell you also that I have spent nearly half of my life engaged in criminal justice work. It took me almost all of that time to understand the principle of accountability. And I am only now beginning to understand it, to work with it, and I come here to share it with you. And I want to share that lesson with you because I accompany you, whether you believe it or not. I accompany you in your imprisonment.

There are others who share my feelings and my beliefs who accompany you as well. And as desperately unbelievable as it may seem, and I suspect that it is desperately unbelievable, there are thousands of people outside of these walls who believe as I believe, who speak as I speak, who share what I say, and who respect you as the unique and irreplaceable people you are. And let me add by way of reference point, so there absolutely is no mistake, I understand and know full well, not only because I am a defense attorney, but precisely because being a defense attorney  has not been my sole experience, that  many of you are here for cruel and brutal acts. I know that it is possible in the middle of the night for a human being to throw another human being off the roof of a building, less than 18 blocks from the Supreme Court House in Bronx, NY.  I know that it is possible to shoot someone to death.  I know that it is possible to shoot someone to death and not know that you have done it. I know that it is possible to bind the hands of another human being and force them to eat feces and to beat them again and again. I know that it is possible to spring trap a cellar door and to hit whoever falls through it with a lead pipe, steal their money and run, without ever so much as conceiving of their prey as a human being. I know that it is entirely possible to walk through a door from a Tuesday to a Wednesday, making the sum total of one mistake, one impulsive act, one desperate descent into cruelty and barbarism and have that change every moment of your life thereafter. I know all these things and I came here to talk to you because I know them.

I came to you to ask you for your help. It is hard to talk to people on the outside about crime. It is hard to talk to them about the people who commit it.

To tell them that despite their fear and despite the cruelty of crime, prisons are not the answer. Hard to tell people and to make them understand that prisons destroy the human soul.

It is hard to make public officials understand that their major fundamental responsibility in the area of crime and justice is to make the victims and the perpetrators of crime whole people, by whatever means necessary.

I learned a way to talk about this more gently, not surprisingly from an inmate at Ossining Prison. I want to share with you a story, a metaphor for mercy, if you will.  If I had only five minutes on this platform, this story would be the only thing I would say to you.

A father and his son were together in their apartment. The father had paperwork to do. The son wanted time to be with his father and to have his father play with him. And the father said he needed about half an hour to work. He took a magazine and thumbed through it. The father saw in the magazine a picture of the world. He tore the picture of the world into little pieces and laid it carefully on the floor and told his son that as soon as he could put the picture of the world back together he would have time to play with him. And he gave him scotch tape and let him go to work. And his son went to work, and in a few minutes had the picture of the world back together. He brought it to his father. The father was amazed and said to his son, “Son, You are only five years old. You have never even seen a picture of the world. How could you put it back together so quickly? I had torn it into a hundred pieces.” The boy turned the page of the magazine with the picture of the world over and showed his father a picture of a man that was on the other side. He said to his father, “It’s true. I don’t know what the world looks like, but I know what a man looks like. And when I put the man back together, the world came back together naturally.”

In September of this year, I received from Harvey Brown, here at the place where you reside, a copy of the Equity Parole Review Proposal. The argument in support of it was economic. In fact, it stated that the most compelling reason to support equity parole review was economic. I don’t believe that. The reason equity parole review makes sense is simply because long minimum sentences of incarceration make no sense. In fact, they are cruel, vindictive accidents of history.

Some of you have been in this prison system since the time that pizza cost five cents and the subway cost fifteen. The reason equity parole review makes sense, whether the economic argument is compelling or non-existent, is because long hard time destroys human beings. And the State of New York should not be engaged in the destruction of human beings.

I speak to politicians frequently. I am told by them that “the people in the streets” want more severe sentencing. I am told that “the people” want long, hard terms of incarceration. They tell me that “the people” want the death penalty. That “people” want to clean up the streets-to stop drugs-to stop muggings. The excuse of politicians when they explain away their support for this system must be then that the voters of New York want savagery.

It must then be that the voters want to destroy poor people’s families. It’s the voters who want to separate parents from tl1eir children. It must be the voters who want to insure inevitably a relationship between joblessness and crime-between crime and the inability of the poor to have decent housing. They say, “It’s not us, it’s them.”

Well, that was the exact position of white Southerners regarding segregated drinking fountains in 1947.  It was the exact position of white bigots in the North and the South concerning the maintenance of segregated schools in 1951.  That is the exact position that permitted the grandfather clause to keep Blacks across the South from voting.  That is exactly the rationale that that put you in the back of the bus.  And don’t make any mistake why I say you.  Seventy percent of this prison system that the so-called “people” want is Black and Hispanic, under 30, unskilled, without high school diplomas, and from the City of New York and Buffalo.

I believe that it is time for the price of oppression to go up. I tell you that there are thousands of people ready to move on criminal justice reform in this state. But they need you to help them to do it. They need to be registered to vote. The people I am talking about are the people who you love and who love you. They need to have their faith rekindled and they need to come to know that there are a lot of politicians who are staking their entire political careers on the proposition that there no longer exists in this country a massive interracial movement for peace and social justice.

Well I know that sometimes it feels like tl1at. But that isn’t the truth.  What is the truth is that there is need for the visibility of such a movement-for the rekindling of a non-violent movement that holds government accountable for its failure to serve the needs of people, for its failure to look into the eyes of starving children and feed them. For its failure to put aside its wealthy, wasteful ways, and to put broken people back together again. And there is something about accountability. Something that I have learned. And that is that everybody is accountable to somebody. And what we have to do is work our way up the chain of accountability. And that is why I am here to ask you for your help. Because we on the outside can’t work up that chain alone.

Some of the most powerful labor unions in the nation consist of fewer than 100,000 people. If each prisoner in the state of New York loved three other people on the outside and could convince them to register to vote, and to vote, they would create overnight a magnificent constituency of voters-voters who would have the power to raise the issue of what should be done with crime and justice, so that people like me and the “hood­lum lobby” could get on with our work and get the job done on building the future that ought to be.

But it happens that there is something more insidious about this prison business than meets the eye. Somehow the experience as a degrading institution is uniquely known to each of you and your families, but it doesn’t get translated to the Capital of his state. Caring about human beings is not a legitimate political position. The alien quality of prison, the destruction  of families, the separation  of you from the only city you may have known, the inability to see, to visit, to constructively communicate  with the people who are your only link to freedom-all of these things take their toll. But they are not yet important in Albany because they are not yet truly known.

We have found that time after time in visiting with people in prison that inmates keep a secret part of themselves as the only place where freedom can continue to reside-the freedom not to share your feelings, the freedom to maintain intact your innermost self. So what happens when outsiders come in under the color of the protection of an invitation? Rather than presenting the unique human being that exists, the unique human being is kept inside and the political being comes out. The person who says, “The most compelling reason for equity parole review is economic,” that simply isn’t so. Again, the most compelling reason for equity parole review is because lots of people who are currently kept in prison ought to be out of prison.

I have three simple propositions and I want to state them. The first is, and I alluded to it before, that inmates and guards are in prison together. The reason that prisons are perpetuated is because there is a need to maintain more than 12,000 jobs that are attached to running the Department of Correctional Services. There is a need for the public, and the guards union, and guards who want to operate in good faith, to talk about the very real union issues that are involved in retraining correctional officers to do productive work. The only way that alternatives to incarceration and the prison abolition movement will succeed is when we can guarantee to Council 82 that we will be liberating the inmates and the guards at the same time. There are thousands of correctional officers, as hard as this may be to believe, who don’t like to come to work. Who hate these prisons as much as inmates do? Who are saddened by the degradation and offended by the waste? It is necessary for you and your families and for us to understand this issue and to relate to it.

Secondly, it is necessary to have register to vote every person you love and every person who loves you, and to cast ballots at election time on behalf of a system of true  justice, to remove from office the cruel and barbarous. And to keep in office those who would bring the future about.

The third issue, and this is relevant to what I’ve said about how you present equity parole review, is you need to bring the legislators of the state of New York into the prisons by direct invitation. Right now you are as invisible to them as they are to you. Section 146 of the Correction Law of this state provides that any legislator at any time can enter a correctional facility at will. It is possible that the first five times you ask them to come, they will be too busy. Continue to ask them. Bring them here. Have them meet with you and your families. Bring them here until they have been here a hundred times-until they are recidivists for justice.

Deal with them as you would a minister and demand of them service. But talk gently to them because only you can civilize them and make them understand what at their hand is perpetuated in this system every day. And in talking gently to them try  to let them understand that it is entirely possible to walk through a door in any day of one’s life and completely and utterly change­ doing on Wednesday something  radically different than what one did on Tuesday.  As I said before, all of you know that that can happen. And that it can have terrible consequences. But you have to trust your ability to translate your experience to those who don’t understand it. And to know that one can walk through a doorway both positively and negatively.

If a senator or an assemblyman or a government official comes here, or a member of the Department of Corrections or Tom Coughlin or Ed Hammock or me, if we come here and hear you talk about the problems of temporary release or those of Good Time, or complaints about rules and regulations, or the appeals process, it is nowhere near as significant as hearing you talk about yourself-to talk about, and legitimately talk about, how bad prisons are. This prison culture is not alien because it is governed by the Correction Law and the rules and regulations of the Department of Correction, and a thousand directives that you have never gotten your hands on. It is an alien environment because it is artificial. It isn’t real.

Out there, beyond the walls, people say to me tl1at I’m not realistic, that  I live in a fantasy land. And I tell them, although you can understand it and they can’t, that there is no greater fantasy than the one that surrounds the idea that you can take people born to be free and stick them in concrete and steel cages under duress, in an invisible empire, impregnated by the Ku Klux Klan, and governed by a standardless system of perpetual punishment-there is no greater fantasy than that such a process will work to do anything positive in all the world. And I believe that the message can only get out over the walls by bringing politicians in here to talk to you. And I don’t mean a symposium. I mean on a one to one basis.

Legislative change, in my opinion, does not flow from a rational analysis of problems. I don’t even think it flows from meritorious proposals. And so far I have not seen it respond particularly well to issues of fairness, mercy or justice. Legislative change seems to flow from a subjective analysis of problems. There must, therefore, be a subjective understanding of the people in prison and their condition. Of prisons and what they do. All this before change will occur.

During the last session of the legislature I commenced with others a personal process of trying to bring legislators on a one to one basis to prison. Not for the purpose of discussing political issues or legislative proposals, but for the purpose of meeting and discussing people. Our first trip was unsuccessful. Inmates were interested in speaking a political message and hoping against hope that a legislator would bring it back and maybe bring legislative reform.

Our second trip was not much better.

But we went back. We met with inmates. And we prepared them for later trips by asking them to become vulnerable. To dig into that inner reserve that they never share with each other and that they never share with an outsider. And we did it by asking questions and asking them just to answer them so that  they could portray the reality of things as they are. What we did was simply ask if we could cross examine them on an issue of importance:

Question: What year were you convicted? Answer: 1971.

Question: What year were you sentenced to prison? 1972.

From where: Manhattan

When was the last time you were in Manhattan? 1972.

In the last ten years, when did you have your last visit? 1976.

When is the last time you saw your grandmother? 1974

Did you have a job when you were in Manhattan? Yes.

What did you do? Swept out a drugstore. Have you had a paying job since? No.

Have you ever been outside the state of New York? No.

Prior to your incarceration, did you ever live outside the City of New York? No.

Did you ever cross the Hudson River when you lived in Manhattan? No.

Have you ever been to Canada?  No. But I have been to Clinton County.

Have you ever walked on the main street of Dannemora?  No.

In the land of the blind, the one-eyed man is a freak. You are experts about yourself and it is the story of your life – the keynote speech of your existence-that you need to begin to tell. And you need to join with others to tell it. You need to take yourself up more gently and speak directly to the people that you and your families elect and re-elect to political office.  As if it was the Kiwanis Club.  As if you were the Rotary. As if this was Lions International.

I don’t know how to expect human beings raised in America to relate to a rational reform of the criminal justice system unless their inner most selves are exposed. And unless their inner most self reaches the inner most self of another human being. It is only in that way that the crime becomes unimportant and the process of the future takes on new meaning. And it is only when legislators on a one to one basis, upon your invitation, are confronted with the reality of prison and the experience of the lives of you and your family-it is only then that they will come to understand the length of time that is involved in a ten year minimum sentence.

When you speak to them translate to them in human terms. Many of them have daughters 26 years old. Sit down with them and plot with them the course of their daughter’s life from age 16 to 26. And compare it with what you have done in the last ten years in prison. Talk to them about the ache they felt when their son was but two years away in Vietnam. Ask them when was the last time they had Thanksgiving with their grandmother? You are not going to humanize this system, and neither am I, by talking about it in objective terms, any more than we can humanize you and me by talking about us in objective terms. If you expect people to be more than  the sum of their experiences, and I mean here people of wealth and power, but also people of good faith who know little of the world of poverty and pain. If you expect such people to be more than the sum of their experiences, you will be asking of them exactly the same thing that they ask of you. It is as much your job to civilize the policymakers of this state as it is mine.

I say to you as.clearly as I stand here that two things are necessary to change and transform the criminal justice system of New York. And I say it in the face of people who don’t believe it can be done. And who are gambling their entire political careers on the fact that it won’t be done. Get everyone you know and love and who can love you to register to vote. And in meaningful terms, translate that vote into a new agenda for change. One which assures the security of the streets, speaks truth to power, and makes politicians and legislators accountable for what they do.

Secondly, invite legislators and politicians to this prison all the time. Make sure they say yes. Collect their “no” answers. If they refuse to come, publish the fact that you have asked them ten times in the Albany Times Union. It will require you to become vulnerable and to tell about your inner most self and the love you deeply feel for the people you deeply love. And for this to work you will have to do it together, in the unified spirit of a single problem. With a faith to share with each other despite the hatred you may feel for some of the others in this room. And the unified spirit of doing it must include doing it for your brothers and sisters yet to come here. And with the idea that it should not be any one group alone but every group. And there are 102 of them in the state of New York recognized by volunteer services as legitimate organizations. At the same time that you ask politicians to respond to the human side of the problem, make sure they know that you are developing 75,000 votes on the outside, voters who are also interested in the human side of the problem. And if it should be that you love 5 people or that 5 people love you, register them too. And maybe that75,000 will grow to 125,000.

And so at the same time that I am here to sup­ port equity parole review and any other early release mechanism, I am here to ask you to help me. And I leave you with one more old saying that puts it into perspective. I learned it from Mercedes McCambridge, who herself, though an actress, came from the depths of alcoholism, from the pits of despair and depression. A woman who learned in her own heart that one becomes strong by becoming vulnerable.

She speaks about taking a little bit of clay and fashioning an image of you and an image of me, and then breaking them, and smashing them, and rebuilding that clay again so that  in the image of me there is a little bit of the image of you. And in the image of you there is a little bit of the image of me. And ever more together we shall be, and under the same quilt of peace shall we someday sleep.

Thank you for hearing me.