Criminal Justice Reform Highlights Mark-Viverito State of City

In her inaugural State of the City address, New York City Council Speaker Melissa Mark-Viverito said shifting away from standard policing and toward summonses and desk tickets could help “put the justice back in our criminal justice system.”

The progressive Democrat framed her argument around how police handle those who dodge subway fare.

“If you are accused of not paying at a turnstile or of any other minor offense in New York City, you may get locked up. And if you can’t afford bail, you will spend, on average, 15 days in jail,” she said. “People lose their jobs, or their housing. … This is not justice.”

When it comes to fare-dodging, legal experts say police can charge the accused with theft of services or trespassing under the state penal code. This permits them to arrest the individual or issue a criminal summons. Alternatively, cops could contend the suspect broke an MTA rule and allow a transit tribunal to weigh civil allegations and fines.

But because the state penal code governs most crime, criminal justice experts say the city’s options are limited to altering a few criminal infractions written into its administrative code or instructing the NYPD to take less punitive measures when multiple potential penalties exist.

Mark-Viverito’s office would not provide further examples of offenses it would like to see handled without handcuffs or holding cells. Her aides said lawmakers would work with the NYPD and the Mayor’s Office of Criminal Justice to develop more appropriate responses, such as issuing criminal or civil summonses or a ticket for minor, non-violent offenses.

New York City Councilman Rory Lancman, the chair of the Courts and Legal Services Committee, has suggested another option. He said the city could revise its codes and reclassify a number of misdemeanors and violations as civil infractions, including being in parks after hours, public urination, public consumption of alcohol, riding bikes on sidewalks and making unreasonable noise. 

Currently, police tend to issue criminal summonses for such infractions—some which can be closed by pleading guilty and mailing in fines while others require showing up in court or contending with a warrant. Guilty verdicts can impact immigration status, student loan applications and employment prospects. 

Some of these offenses fall under parallel criminal and civil codes, which gives police more latitude. For instance, the city views public urination as dumping of noxious liquids and therefore a violation of littering prohibitions. Police tend to treat it as a criminal matter; the Department of Sanitation, a civil one.

For minor offenses, Lancman said the city may also instruct the NYPD to generally take the least criminally onerous route.

“A lot of people who get these criminal court summonses are working people,” said Lancman, who has spent a few months drafting legislation that would change the city’s approach to such infractions. “There are 1.2 million outstanding bench warrants for people who did not answer their open container, their biking on a sidewalk or their whatever low-level offense.”

In addition to Lancman, the New York Civil Liberties Union and John Jay College of Criminal Justice Professor Eugene O’Donnell have argued that police-community relations would improve if summonses typically handled by the state court system were funneled into the city’s Office of Administrative Trials and Hearings. 

“There is nothing less respectful for police than making them the bouncers of society, so this is extremely pro-police,” said O’Donnell, a former NYPD officer and assistant district attorney. “The Eric Garner case was basically a tax offense, a civil offense, and having a street officer handling that is a criminal offense. Bring him to civil court and serve him with the civil process.”

It was less clear what such a change might mean financially. The speaker’s office did not respond to an inquiry about whether her push would drive up the Office of Administrative Trial and Hearings' budget or net more revenue in summonses. 

David Bookstaver, a spokesman for the state court system, said it was in discussions with the city over how to handle summonses, particularly those pertaining to the mayor’s new policy of no longer arresting most caught with less than 25 grams of marijuana.

 “We’re always looking for new and better ways to do our job,” Bookstaver said.