reentry

My latest piece for the New York Law Journal:

Despite efforts to reduce the number of people entering New York City's criminal justice system for low-level crimes, the number of women arrested for misdemeanors has not been reduced at the same rate as for men, according to a new report.

The study, by the New York Women's Foundation and the John Jay College of Criminal Justice's Prisoner Reentry Institute, found that 42,886 women were arrested for misdemeanors in 2014—a 7.1 percent drop over the previous five years.

In contrast, the number of men arrested for misdemeanors fell by 10.3 percent to 182,403 over the same five-year period, according "Women InJustice: Gender and the Pathway to Jail in New York City."

Even though people think of men when they think of mass incarceration, women are involved in the criminal justice system too, said Ana Oliveira, president and chief executive officer of the Women's Foundation.

"The first step to solving the problem is to bring it to light," she said.

The report concluded that city officials need to take gender into account if they want to reduce the number of women entering Rikers Island, which has faced intense public scrutiny over conditions at the facility and treatment of detainees.

For example, the report found that women are likely to become involved in the justice system because of "experiences of violence, trauma, and poverty. Women of color, particularly those from low-income communities, are disproportionately arrested and incarcerated."

Women in the justice system also have higher rates of mental health problems than men do, the report added.

As policymakers debate whether it would be a good idea to close Rikers, Alison Wilkey, policy director of the Prisoner Reentry Institute and author of the report, said reform efforts should focus on the fact that the 600 women or so who are held at Rikers on a daily basis spend two weeks or less in detention.

"What's the purpose of disrupting someone's life and putting them in jail for two weeks?" she asked.

The report offers several ways to reduce the number of women entering Rikers.

Because the majority of women are held pretrial, one recommended reform is reducing the use of cash bail and fully secured bonds in favor of programs with supervised release or increasing bail funds. "For many New Yorkers, any amount of cash bail imposed results in de facto detention," the report said.

The city soon will offer the option of posting bail online, part of a larger effort to reform the bail system and reduce reliance on cash bail.The program is set to begin this spring (NYLJ, Nov. 2).

Obstacles to posting bail contribute to about 12,000 unnecessary jail stays each year, according to a release from Mayor Bill de Blasio's office. The Center for Court Innovation found that, in 2014, friends and family were able to post bail immediately in less than 14 percent of the 48,816 disposed cases in which bail was set above $1.

Another recommended reform in the Women InJustice report is delivering reentry programs to women detained at Rikers for short periods of time. Even though 60 percent of women stay at Rikers for less than two weeks, "short stays can cause significant harm, disrupting families, childcare, and health care, or leading women to lose their benefits, employment, or places at shelters," according to the report.

Housing also has been identified has the largest problem facing women in the New York City justice system, the report found.

How do you overcome the ax murderer taking care of Grandma problem?

Lawyer Peter H. “Tad” LeVan knows a thing or two about that.

A few weeks ago, the Pennsylvania Commonwealth Court, sitting en banc, ruled that the state's ban on former convicts working in elder care was unconstitutional.

LeVan gave me a recent interview about this litigation. It started with a challenge to the law's constitutionality on an individual basis; the Pennsylvania Supreme Court ruled that the law’s “employment ban was not rationally related to the Commonwealth’s legitimate interest in protection elderly citizens.” LeVan won that case in 2003. But then the Pennsylvania General Assembly never moved to amend the law after the court’s ruling.

So, in the spring of 2015, Levan, his co-counsel and his clients challenged the law on its face as unconstitutional.

It's always easier to attack the constitutionality of law by arguing that it’s unconstitutional “as applied” to particular plaintiffs, than arguing that the law is unconstitutional for everyone on its face.

The Pennsylvania Older Adults Protective Services Act was passed in the 1990s to create a lifetime ban on employment for convicted murderers and rapists in healthcare facilities; people convicted of felony drug violations and several other crimes were banned for a decade from working in healthcare facilities. The law, which was amended in 1997, required anyone who had been working at an eldercare facility for a year or less to be fired. However, people who had been working for a year or more could keep on working for their present employer.

By 2015, the social science had developed enough on reintegration and recidivism to support a challenge that the ban on people with criminal convictions working in elder care had zero “scope of rationality,” LeVan said.

“Social science research conducted subsequent to the [prior case] shows that the lifetime employment ban is built on a faulty premise because the risk of recidivism declines over time and eventually ‘loses any meaningful value in predicting future criminal conduct,’” Judge Mary Hannah Leavitt wrote for the Commonwealth Court.

The court ruled that the employment ban violates the Pennsylvania Constitution.

“There is simply no rational basis to treat those employed for a year in a facility providing services to older adults as of July 1, 1998, as having rehabilitated themselves following their criminal convictions solely because of the amount of time they worked in one facility such that they do not pose a threat to older adults, but treat all other employees and applications as incapable of rehabilitation and forever a threat to adults,” Leavitt opined.

The two sides also disagreed on the correct standard for considering the plaintiffs’ challenge to the constitutionality of the employment ban.

Lawyers for the Commonwealth of Pennsylvania argued that a law can be declared facially unconstitutional only if there is no set of circumstances under which the statute would be valid. LeVan argued on behalf of his clients that a statute is facially unconstitutional if a substantial number of its potential applications are unconstitutional.

The Commonwealth Court followed the U.S. Supreme Court’s ruling in Washington State Grange v. Washington State in State Republican Party in deciding that challengers who argue that a law is unconstitutional on its face need only demonstrate that a substantial number of the “‘challenged statute’s potential applications are unconstitutional.’”