Would NYC’s decriminalization push nix all intended consequences?

New York City Council members looking to decriminalize a host of minor offenses argue that getting caught riding a bike on the sidewalk or breaking a park curfew should not come with consequences severe enough to merit an attorney. Their plan to shift such cases from the criminal and summons court system to administrative tribunals would nix the accused’s right to an attorney. But it is unclear whether lawmakers can guarantee all the consequences lawyers advise about would automatically be abolished. 

Some criminal defenders and legal experts question whether lawmakers should be so confident their proposal would eradicate the entire spectrum of consequences associated with criminal convictions, including loss of access to federal student loans, difficulty obtaining employment and deportation or other immigration-related implications.

“The hope would be that there’s nothing we know of that could adversely affect someone, so-called collateral consequences, but that makes most lawyers who practice in criminal court very nervous because these consequences pop up in strange ways,” said Steve Zeidman, a law professor at CUNY Law School. “There are laws in the books that no one is aware of. There’s a private employer that might find something out.”

New York City Council Speaker Melissa Mark-Viverito discussed plans to diminish penalties for low-level criminal offenses during her State of the City address, highlighting the plight of youth who are picked up for dodging subway fares, cannot make bail and wind up saddled with a record hindering their job and housing prospects. More recently, she and City Councilman Rory Lancman have discussed routing non-violent offenses to the administrative court system because they believe a criminal conviction—and warrants issued for missed summons dates—are too severe.

“The consequences are so minimal,” said Lancman, the Courts and Legal Services Committee chairman. “It is not contemplated that we would provide right to counsel any more than they get if they get a parking ticket.”

NYPD Commissioner William Bratton has said officers need to maintain the ability to make arrests in such situations, but has also floated the idea of a written warning system to give offenders a chance to stave off formal penalties. New York City Mayor Bill de Blasio has opposed efforts to decriminalize fare evasion and said little else about other targeted quality of life offenses.

Negotiations and potential revisions aside, the plan put forth by Lancman would likely have unforeseen consequences for those fighting infractions in the civil realm, according to Zeidman. He said such a move requires meticulous planning.

Last time the administration decreased penalties for a criminal offense, advocates worried assigned defense attorneys were not prepared to ensure the city was meeting a constitutional mandate. In November 2014, de Blasio announced police would issue a summons containing a violation charge for most people caught with 25 grams or less of marijuana, rather than arresting and charging them with a crime. The new policy meant more New Yorkers facing drug offenses were represented by the 18-B attorneys used in summons court, instead of public defenders in criminal court. Legal advocates stressed that public defender organizations have immigration units or attorneys trained to advise clients on what a drug conviction can mean for their immigration status, as required by the Padilla vs. Kentucky Supreme Court decision. 18-B attorneys do not always have this background.

“Lawyers that are going to represent these people in summons court, the 18-B panel, are being trained to understand these consequences in a way that they hadn’t before because the concern is so many people will come in, and if they take that plea, can wreck their lives,” said Justine Luongo, the attorney in charge of the Legal Aid Society’s criminal practice. “The corollary between the judge and the lawyer and the client is often less than a minute in summons court.”

Five months into the new policy, the de Blasio administration announced a slate of reforms in the summons court system, including training 18-B attorneys and judicial hearing officers about the collateral consequences associated with convictions.

Regardless of who is representing accused New Yorkers and in what court system, Zeidman said the current decriminalization push does not address the crux of concerns about Broken Windows policing. Instead, he contended it relegated enforcement of offenses known to disproportionately impact black and Latino men to a court system relatively more insulated from public defenders and other criminal justice advocates.

“Is it better? Sure, but it doesn’t get to the underlying problem,” Zeidman said. “The underlying theory is—Do we need hyper-aggressive policing. This accepts that we do need hyper-aggressive policing. We’re just saying, ‘What are we going to do with the person who is hyper-aggressive policed.’”