Could City Council's Decriminalization Push Have Unintended Consequences?

New York City Council members seeking to decriminalize a host of minor offenses, such as drinking on the street and cycling on the sidewalk, argue that these violations should not result in an arrest or a case grave enough to require the expertise of an attorney.

Proposed by City Council Speaker Melissa Mark-Viverito’s office, the plan would shift such cases from the criminal and summons court systems to administrative tribunals: while offenders would still have to pay a fine, they would no longer spend time in jail. But the new strategy would also nix the accused’s constitutional right to an attorney, and it remains unclear if all of the potential legal consequences about which lawyers advise clients would be swept off the table as well.

Some criminal defenders and legal analysts question whether city lawmakers should be so confident that their proposal would eradicate the entire spectrum of repercussions associated with summons convictions, including the potential 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 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.”

Mark-Viverito called to diminish penalties for low-level criminal offenses during her February State of the City address. She said those who dodge subway fares and cannot afford bail should not be arrested and processed through the criminal court system because it may cost them their job, and ultimately, their housing.

More recently, she and City Councilman Rory Lancman have discussed routing non-violent offenses through 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, chairman of the City Council Courts and Legal Services Committee. “It is not contemplated that we would provide right to counsel any more than they get if they get a parking ticket.”

New York Police Commissioner Bill Bratton has said officers need to retain the ability to make arrests in these 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 has said little else about other so-called quality-of-life offenses.

But negotiations and potential revisions aside, CUNY’s Steve Zeidman says Lancman’s plan would likely have unforeseen consequences for those fighting infractions in the civil realm, and that such a move requires meticulous planning.

Last time the de Blasio administration decreased penalties for a criminal offense, advocates worried that assigned defense attorneys were not prepared to ensure the city was meeting a U.S. constitutional mandate: In November 2014, the mayor announced that police would begin issuing tickets containing a legal summons and a violation charge for most people caught with 25 grams or less of marijuana, rather than arresting them on criminal charges. Yet even when treated as a non-criminal violation, two convictions for marijuana possession may make an immigrant automatically eligible for deportation,according to the New York Civil Liberties Union.

The city traditionally contracts with public defender organizations to provide legal representation for those who cannot afford attorneys in criminal court. These organizations usually include immigration units with attorneys prepared to advise clients on the implications of a drug conviction for their immigration status, as required by the U.S. Supreme Court decision Padilla vs. Kentucky. In summons court, however, the city uses a panel of lawyers screened, trained and paid by the hour through the so-called 18-B process. These 18-B attorneys do not always have a background in immigration law, which advocates say could pose a constitutional compliance issue for the city.

“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, it 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 marijuana possession policy, the de Blasio administration announced a slate of reforms to the summons court system, which included training for 18-B attorneys and judicial hearing officers on the collateral consequences associated with these convictions. Aside from immigration-related complications, these could include eviction from public housing and being forced to disclose the incident when applying for private sector jobs, according to the NYCLU.

Regardless of who is representing accused New Yorkers and in what court system, Zeidman says the current decriminalization push fails to address the crux of his concern about the so-called broken windows model of policing, the strategy long championed by Police Commissioner Bill Bratton. Zeidman contends the City Council’s proposal would relegate enforcement of offenses known to disproportionately impact black and Latino men to an alternate court system—one that would be relatively 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-aggressively policed.’”