NYT - A Plea to Albany: Repeal the Marijuana Laws

To the Editor:

Re “De Blasio Directs Police Dept. to End ‘Unnecessary’ Marijuana Arrests” (news article, May 16):

News from the New York City Police Department and district attorneys about overhauling how they enforce and prosecute marijuana arrests is heartening but a half-step to what is truly needed.

The ultimate solution — full repeal of existing marijuana laws — falls on Gov. Andrew M. Cuomo and the Legislature. Anything less will continue to subject New Yorkers to biased enforcement and needless loss of access to student loans, subsidized housing and other public benefits, and, for noncitizens, the risk of detention and deportation.

Decriminalization also will not generate the economic gains that could be reinvested back into the same communities that shouldered the brunt of overzealous marijuana prohibition and the war on drugs for decades.

Legalization has this potential, as demonstrated in various states throughout the country that have scrapped these draconian laws.

We hope that New York’s leaders in government will start to coalesce around the only true solution that will finally right this pressing public problem.

ANTHONY POSADA, NEW YORK

The writer is supervising attorney for the Community Justice Unit of the Legal Aid Society.

State official affirms Medicaid rules cover nonbinary people

An official at the state Office of Temporary and Disability Assistance last week overturned an insurance company's decision to deny coverage for a breast reduction procedure to treat gender dysphoria in a Medicaid recipient who does not identify as male or female.

The decision, which ends a fight that's lasted more than a year, addresses a burgeoning complication as the acceptance of transgender and nontraditional gender identities rises and those people seek medical care for their unique health needs.

The case revolved around whether the state Medicaid program's regulations on gender dysphoria treatment was exclusive to transgender people, or also included gender nonbinary or nonconforming individuals.

The now 27-year-old person, referred to in the filing as "AV," has identified as nonbinary since 2014 and sought approval for a reduction mammoplasty in 2017 in order to conform with the person's gender identity.

AV's insurer, HealthFirst — which runs Medicaid managed care plans and other low-cost health insurance plans — denied the claim last March for, among other reasons, not meeting the company's criteria for medical necessity. In its denial, HealthFirst stated that AV did not undergo hormone therapy or present sufficient documentation showing why that would be inappropriate before seeking a surgical procedure.

That decision was upheld in June following an administrative appeal.

"As a practical matter, there is no way to distinguish between a purely cosmetic procedure and one performed to allow the Appellant to 'conform' to an essentially undefined gender," the original decision stated. "[T]here was insufficient evidence at the hearing to establish that the requested procedure is in fact medically necessary and not cosmetic."

Lawyers with the Legal Aid Society pushed for a new hearing, which was granted in April. They believed that because AV identified as nonbinary or gender nonconforming, asking AV to undergo hormone therapy — as HealthFirst referenced in its denial — would run counter to treating gender dysphoria and would restrict care for similar individuals contrary to the state's intent when creating the regulations.

Gov. Andrew Cuomo in 2014 directed the Department of Financial Services to ensure that commercial insurers cover medically necessary treatment for gender dysphoria, and the Department of Health in 2015 adopted regulations covering certain procedures, which prompted a legal challenge, and was later amended to require Medicaid cover all treatments for gender dysphoria deemed medically necessary. That policy went into effect in late 2016.

OTDA's Nigel Marks, who was designated by DOH to oversee the case, agreed with AV's lawyers and wrote an 11-page decision reversing the denial and ordering HealthFirst to approve the request for breast reduction.

"HealthFirst appears asserted that a diagnosis of gender dysphoria requires the individual to conform to the gender opposite the gender assigned at birth," Marks wrote. "Requiring conformance to the opposite gender is inconsistent with the diagnosis of gender dysphoria as specified by the Diagnostic and Statistical Manual of Mental Disorders ... Therefore, the distress associated with gender dysphoria is not limited to a desire to just be of the opposite gender, but may include a desire to be non-binary."

AV's lawyers praised the decision, saying it would help prevent roadblocks for transgender individuals seeking health care.

"No New Yorker should be denied medically necessary, gender affirming health care," Heidi Bramson, staff attorney with the Legal Aid Society's Health Law Unit, said in a statement. "The Legal Aid Society is hopeful that this historic, precedent-setting decision will inform insurance plans, health care providers, judges and gender non-conforming individuals that health care discrimination on the basis of gender identity is illegal and it has no place in New York."

Representatives from HealthFirst and DOH did not return requests to comment on the decision.

City & State: Criminal justice reform would protect immigrants from deportation

Gov. Andrew Cuomo made a strong statement in support of the rights and dignity of immigrants when he recently amended his September executive order clarifying that warrantless arrests by U.S. Immigration and Customs Enforcement agents are prohibited in most state buildings. He also sent a cease-and-desist letter to ICE publicly threatening a lawsuit and accusing the agency of making illegal arrests. These bold and necessary actions send a powerful message to federal officials that New York is committed to defending our immigrant communities.

But more can and should be done to defend New Yorkers from ICE detention and deportation, especially in the realm of criminal justice reform.

Studies indicate immigrants are generally more law-abiding than the general public, but even traffic stops or arrests on low-level charges that are later dismissed can cause serious harm to immigrants, as arrest fingerprints collected by the NYPD are shared with the federal government, putting them on ICE’s radar and at risk of indefinite detention and deportation.

As chief public defenders whose organizations represent both people facing criminal allegations and people detained by ICE and at risk of deportation, we are uniquely situated with broad insight into the scope of the problem and meaningful solutions. We offer 10 reforms to protect immigrant New Yorkers and keep our families and communities whole.

The governor should issue more pardons to stop deportations based on old convictions. Pardons are a powerful way to reward rehabilitation, and they can also protect immigrants, particularly those with legal status, from deportation based on prior mistakes.

End “broken windows” policing. In New York, the criminal legal system’s widest net is cast through “broken windows” policing, which disproportionately impacts communities of color and feeds President Donald Trump’s deportation machine.

Reform New York’s “gravity knife” laws. Currently, many immigrants and others working in various trades are arrested and prosecuted for simply possessing a work knife due to a very poorly worded statute from the 1950s. The state Legislature nearly unanimously passed a bill to fix that statute twice, but Cuomo vetoed it both times.

Shorten maximum misdemeanor sentences by one day. In many cases, immigration law renders immigrants – including those here lawfully – deportable based on a conviction that has a maximum jail sentence of at least one year. Several states across the country reduced the maximum allowable jail sentence for misdemeanors by one day from 365 days to 364 days to avoid this outcome – New York should do the same.

Abolish gang databases. The informal structure and often fleeting nature of gang associations do not permit an objective assessment of membership and lead to arbitrary and discriminatory identifications based on where you live, what school you go to, who your friends are or what NBA jersey you wear. Gang allegations, when subject to review, are all too often found to be a pretext for arrest and detention without any hard evidence. But ICE readily says it uses gang allegations to persuade judges to force those profiled, often teens without any criminal history, into indefinite detention as a coercive measure to demoralize and encourage these vulnerable New Yorkers to sign deportation orders.

Pass the state DREAM Act. This bill would make undocumented students eligible for financial aid to go to college. We believe education is a human right and a social good whose impact is maximized by universal access on an equitable basis.

Offer driver’s licenses to immigrants. Driving without a license is among the top arrest charges for undocumented immigrants because they are prohibited from obtaining one, yet many still must drive their children to school and commute to work – especially in rural and suburban areas. New York should join the dozen other states and the District of Columbia that permit undocumented immigrants to hold driver’s licenses. Creating access to driver’s licenses also allows for better regulation of who is on the road and under what conditions; it is good public policy.

Improve regulations for street vendors and legalize electric bicycles. Police crackdowns on New York City food delivery workers using electric bicycles and street vendors disproportionately impact immigrants and their families. New York state and New York City should work together to create a regulatory environment that promotes economic empowerment for vendors and service workers.

Legalize marijuana. The NYPD arrests more than 17,000 people for the lowest level marijuana possession every year, the vast majority of whom are black or Latino, despite surveys showing equal or greater use by white people. Right now, a marijuana conviction is the No. 4 reason for deportations. These convictions also render immigrants subject to mandatory detention with no right to a bond hearing. Legalization legislation should vacate as many prior marijuana convictions as possible to protect immigrants harmed by prohibition.

Pass comprehensive pretrial criminal justice reform. New York must reform bail, discovery and speedy trial laws that are rigged against defendants. Current laws allow prosecutors to coerce guilty pleas, including from those who are innocent, by withholding crucial evidence and requesting unaffordable bail that results in prolonged pretrial detention. This unfair system is particularly harmful to immigrants, who may be forced to choose between fighting their cases for months or years while in jail or accepting plea deals with immediate release and criminal records that make them deportable.

With a federal immigration and deportation system that relies heavily on local law enforcement, these measures are needed to protect immigrant New Yorkers from the Trump administration’s xenophobic policies.

Daily News: City faces lawsuit over how NYPD removes someone from gang database

There are more than 17,500 gang members in New York City, the NYPD says, but it still has not said what mechanism, if any, is in place to remove someone from its database.

That's according to the Legal Aid Society, which plans to sue the city after getting from the NYPD documents from two PowerPoint presentations and other internal paperwork that it said don't address the core concerns first raised by the group when it filed a Freedom of Information Law request late last year.

"What the department did was include was every section of the Patrol Guide you can think of,'' said Anthony Posada,(cq) of Legal Aid's Community Justice Unit. "That wasn't news to us. We still feel far too many people are listed in the database because of how they dress, or if they have tattoos, or if they know someone with a criminal record.

"And we still don't know anything about how they go about purging names from the database."

The NYPD Wednesday still wouldn't answer that question.

The hot-button issue has taken on added urgency recently, with concerns that being in the database could result in deportation, given the federal government's aggressive posture towards illegal immigrants since President Trump took office.

Earlier this month, a Manhattan federal judge ordered the release of an undocumented 16-year-old Honduran suspected of being a MS-13 member in Suffolk County. Judge John Keenan disagreed with the assertion that the teen, identified in court documents as EHE, could be dangerous, and noted that it was wrong to consider him a "likely" gang member based on what he was wearing.

The NYPD, to be sure, does not cooperate with federal authorities who ask police to detain a prisoner -- unless the person in question has committed one of 170 listed felonies and the feds have a warrant.

But Posada and other advocates said that hasn't stopped Immigrations and Customs Enforcement agents from themselves busting suspected gang members, regardless of the validity of the classification and sometimes despite the lack of recent contact with police.

The FOIL response to Legal Aid includes current gang and crew data, according to the NYPD.

There are currently "approximately 17,571 members," according to the documents provided Legal Aid.

The Bloods are most represented among gangs and crews, at 27%, according to what the NYPD gave Legal Aid, followed by the rival Crips, at 13%, and the Latin Kings at 9%.

MS-13, predominant on Long Island, has one "clique" in the city, in Jamaica, and represents 2% of gang members. The remaining 49% include a mix of other gangs and crews, some noted by ethnicity, such as 11% Mexican.

The FOIL response doesn't say how many names are in its gang database. Previous FOIL requests suggest there are at least 25,000 though and advocates have said that based on previous police data that number could be upwards of 40,000, including thousands of people who haven't had contact with police in years.

Legal Aid in recent weeks has also encouraged those suspected of being a database to use its website to file a FOIL request that the group will send to the NYPD. One community organizer who made such a request got a shocking response in return.

Almost 300 people have filed, Posada said, with about 95% of them told such information is "exempt from disclosure." About 40 of those who have appealed the decision later learned they are not in a database.

In Historic Decision, NYS Acknowledges Gender Non-Conforming New Yorkers’ Right to Health Coverage

The Legal Aid Society, Willkie Farr & Gallagher LLP, and the Sylvia Rivera Law Project lauded a decision rendered by the New York State Department of Health (NYSDOH) that acknowledges gender non-conforming New Yorkers’ right to health coverage under Medicaid.
 
“No New Yorker should be denied medically necessary, gender affirming health care, and we are glad to see that Albany finally recognizes this right,” said Heidi Bramson, Staff Attorney with the Health Law Unit at The Legal Aid Society. “The Legal Aid Society is hopeful that this historic, precedent setting decision will inform insurance plans, health care providers, judges and gender non-conforming individuals that health care discrimination on the basis of gender identity is illegal and it has no place in New York.”
 
“We are pleased with the Department of Health’s decision in this important case, which should further cement the rights obtained in Cruz v. Zucker - that transgender, non-binary, and gender non-conforming New Yorkers have access to medically necessary, gender affirming health care,” said Wesley Powell, partner at Willkie Farr & Gallagher.

"It is upsetting for AV and every other non-binary New Yorker that legal intervention was necessary in this case. It should be understood that every New Yorker must be provided with healthcare regardless of gender identity and expression. We hope that the Department of Health takes this issue seriously and begins to inform more New Yorkers of their right to access healthcare and that the Department of Health enforces the true scope of the Cruz ruling with all their contracting health and insurance companies,” said Mik Kinkead, Staff Attorney with the Sylvia Rivera Law Project.

Background

In 2014, The Legal Aid Society, the Sylvia Rivera Law Project and Willkie Farr & Gallagher filed Cruz v. Zucker to challenge a New York State regulation that banned Medicaid coverage for transgender health care. That case led to a repeal of the ban and an amended regulation, which became effective in December 2016, requiring Medicaid coverage for all medically necessary transgender health care for individuals diagnosed with gender dysphoria (GD).  The Legal Aid Society now regularly represents transgender Medicaid recipients to enforce the right to gender affirming care secured through Cruz v. Zucker.

AV is one such client. AV is a 27-year-old transgender person and identifies as non-binary. On February 22, 2017 AV’s doctor requested Medicaid coverage for a reduction mammoplasty as medically necessary treatment for AV’s GD. This procedure was denied by AV’s Medicaid plan, Healthfirst. AV requested a fair hearing to challenge the denial, which was held on June 8, 2017. The Decision, issued by New York State on June 14, 2017, upheld Healthfirst’s denial. Disturbingly, the administrative law judge (ALJ) found that the regulation does not apply to non-binary individuals, thereby imposing a requirement that does not exist within the regulation: that individuals must be transitioning strictly either from male to female or from female to male.  

On October 6, 2017, Legal Aid submitted a request for a corrected decision. However, despite months of waiting, Legal Aid did not receive a response. In January of 2018, a group of advocates addressing the ongoing barriers to gender affirming care for transgender people sent a letter to the New York State Department of Health (DOH) alerting them to these challenges. In this letter, AV’s case was mentioned and a request for intervention was made. While DOH did eventually respond to Legal Aid in late March, stating that they were considering our request, there was still no resolution or significant movement weeks later.

On April 27, 2018, Cruz counsel sent a letter to New York State’s Office of the Attorney General alerting it that the erroneous fair hearing decision was a violation of the final judgment and order in Cruz and informing it of our intention to file a motion to enforce the judgment. One week later, on May 4, 2018, DOH informed Legal Aid that AV’s fair hearing decision would be vacated because the regulation does provide coverage for non-binary individuals and that a new decision would be issued ordering coverage for AV’s medically necessary health care. That decision was issued on May 11, 2018.
 
The decision is accessible here.

 

Patch: Marijuana Use Won't Be Prosecuted In Manhattan, Brooklyn: DAs

Starting Aug. 1 the Manhattan District Attorney's office will decline to prosecute marijuana possession and use cases, Manhattan District Attorney Cyrus Vance, Jr., announced Tuesday.

The district attorney's new policy is expected to reduce the number of annual marijuana-related prosecutions from about 5,000 to about 200 — a drop of 96 percent — the district attorney's office announced. The DA's office will meet with Mayor Bill de Blasio and the NYPD to determine exceptions to its new policy in the coming months.

The new marijuana policy was unveiled Tuesday alongside a report titled "Marijuana, Fairness and Public Safety." The report culminated a six-month study on marijuana policy including interviews with law enforcement officials in jurisdictions that do not prosecute marijuana possession and data analysis.

The DA's report found that black and Hispanic people are arrested for marijuana possession and use at higher rates than white people. The majority of theses arrests occur in neighborhoods of color as opposed to neighborhoods that are predominantly white, according to the report.

"The dual mission of the Manhattan D.A.'s Office is a safer New York and a more equal justice system," Vance said in a statement. "The ongoing arrest and criminal prosecution of predominantly black and brown New Yorkers for smoking marijuana serves neither of these goals."

In addition to outlining its new policy, the Manhattan DA's report recommends the state move to legalize and regulate cultivation, distribution, sale and use of marijuana in New York.

The majority of marijuana-related arrests do not result in significant prosecutions, which places a burden on the effectiveness of the criminal justice system, according to the district attorneys' report. While the arrests do not bear fruit for law enforcement, they ofter have negative consequences on the arrestee's employment, education and immigration status.

Brooklyn District Attorney Eric Gonzalez said Tuesday that his office began a pilot program to decline prosecuting public use of marijuana in February. Gonzalez said that any cases where the use of marijuana does not create a "public nuisance" will not be prosecuted. In the past, the Brooklyn District Attorney's office has declined to prosecute low-level possession cases.

The Legal Aid Society called the Manhattan District Attorney's new policy "progress," but said that further action must be taken to rectify the inequalities created by the state's past marijuana enforcement policies.

"For too long, black and brown communities have borne the brunt of overzealous marijuana enforcement and the war on drugs," Anthony Posada, supervising attorney of the Community Justice Unit at The Legal Aid Society, said in a statement.

"Today's announcement from the Manhattan District Attorney is progress, but this issue ultimately falls on Governor Andrew Cuomo and the Legislature to rectify state-wide. New York State must repeal existing marijuana laws as many other states have done, otherwise New Yorkers will still be subjected to biased enforcement and needless loss of access to student loans, subsidized housing and other public benefits, and, for non-citizens, the risk of detention and deportation."

Daily News: State Lifts Limits on Care Packages for Prisoners with TVs

daily news meals.jpg

Break out — the popcorn.

The state prison system has lifted strict care-package rules for convicts who have access to their own TVs.

For years, those in the 10 TV-eligible facilities were only allowed two food packages a year from the outside. But prisoners at those locations can now receive as many boxes of goodies as their loved ones want to send, according to an April directive. The packages can include anything from food and blankets to clothing and art supplies.

Legal Aid officials pressed the state Department of Corrections and Community Supervision to change the policy.

"These items remind people who are in cages that they are indeed human, have human responsibilities, and have human aspirations," said Legal Aid attorney Caroline Hsu.

Tina Luongo Honored by FEDCAP for Extraordinary Contributions to Justice Reform

 Tina Luongo

Tina Luongo

On May 16th, Tina Luongo, Chief Defender of The Legal Aid Society, was awarded the Amelia Betanzos Distinguished Service Award from  FEDCAP during the Annual Spring Cocktail Party on Wednesday at The Mezzanine, 55 Broadway. Tina will be honored for her extraordinary contributions to justice reform.

As part of the evening's program, guests were treated to a special video that presented the chapters of Tina's life that brought her to The Legal Aid Society and saw her launch a career dedicated to reform.

As Chief Defender at The Legal Aid Society, Tina leads a dedicated staff of over 1,100, who are responsible for representing more than 200,000 people in trial, post-conviction and parole matters. Under Tina’s leadership, The Legal Aid Society opened a first-ever Digital Forensic Unit focused on criminal defense, launched the Cop Accountability and Decarceration Projects, and increased the capacity of every trial office to provide the highest quality representation to clients.

Tina also spearheaded the Decarceration Project, a city-wide campaign to reduce and eventually eliminate the pre-trial incarceration of poor people in NYC – in 2018, close to 47,000 people will be incarcerated before their cases are heard simply because they can't afford bail. Tina has also lent significant support to The Women’s Project, Fedcap’s initiative to assist women in pre-trial detention at Rikers Island, connecting them with essential services, providing a strong community network and offering supportive workshops to help them on their path to wellness and economic stability.

The Legal Aid Society’s DNA Unit part of team Awarded Prestigious Magic Grant from Brown Institute for Media Innovation

The Legal Aid Society’s DNA Unit will support the team awarded a prestigious Magic Grant from the Brown Institute for Media Innovation to compare the results of DNA mixture software used for criminal prosecution.

DNA Unit staff attorney Jessica Goldthwaite is on the team, headed by Jeanna Matthews, an associate professor of computer science at Clarkson University and a Distinguished Speaker for the Association for Computing Machinery, the world's largest scientific and educational computing society.

“These software programs are being used to tackle the most challenging DNA evidence and we have no idea their level of infallibility,” said Jessica Goldthwaite, Staff Attorney with The Legal Aid Society’s DNA Unit. “New Yorkers are being sent to jail based on their results, and we must have some level of transparency and accountability. We look forward to analyzing these programs’ methods and how they impact our criminal justice system.”

The Brown Institute for Media Innovation is a collaboration between Stanford University’s School of Engineering and the Columbia University’s Graduate School of Journalism. Each year, the Institute awards Magic Grants to foster new tools and modes of expression and to create stories about important contemporary political, cultural or technical issues.

This year, the Institute is awarding nearly $1 million for 12 projects, including developing a database and interactive display connecting deaths in Mexico stemming from U.S. deportations; another project pairs a documentary filmmaker and a theater director to examine the suppression of the African American vote in the 2016 presidential election; and a third develops means for sharing local data on police vehicle stops.

The project, Decoding Difference in DNA Forensic Software, has been awarded a $75,000 grant, is aimed at determining when, why, and by how much certain DNA mixture software programs can produce different results. These software programs tackle interpretation of the most complex DNA evidence tested.  Real world cases have shown one program can include a suspect and another exclude him, yet no systematic study independent from the developers of these programs has been conducted.  This project aims to provide this critical information. 

The project will help answer the call put out by former President Barack Obama’s Council of Scientific Advisors on Science and Technology for independent testing of these DNA software programs.

The project will compare forensic DNA software, moving the story beyond anecdotal examples to a systematic investigative strategy. In the process, the team will explore important issues of algorithmic transparency and the role of complex software systems in the criminal justice system.

The Legal Aid Society’s DNA Unit The DNA Unit is The Legal Aid Society's pioneering forensics unit dedicated to ensuring vigorous representation of its clients and fighting to keep unreliable forensic science out of court.  In recognition of the increasing importance of the role of DNA in criminal prosecutions the Criminal Practice created the DNA Unit in 2013.  Comprised of seven full-time attorneys with extensive experience litigating felony cases and a paralegal, the Unit assists the nearly 700 Society staff attorneys representing clients citywide in cases involving DNA evidence.