http://www.brooklyneagle.com/articl...red-metropolitan-black-bar-association-during
Hon. Ruth Shillingford, Kings County Supreme Court. Eaglephotos by Rob Abruzzese
The Metropolitan Black Bar Association (MBBA) will honor members of New York's black judiciary, including Hon. Sheila Abdus-Salaam and Hon. George Bundy Smith, during a Black History Month Celebration at the Thurgood Marshall Federal Courthouse in Manhattan on Feb. 8.
The event will recognize those two judges along with the rest of the black members of the judiciary. Two Brooklyn judges, Hon. Ruth Shillingford, president of the Judicial Friends Association, and Hon. L. Priscilla Hall, a past honoree of the MBBA, will give speeches during the event.
Hon. L. Priscilla Hall, Appellate Division: Second Judicial Department.
The New York State Bar Association gave out its Diversity Trailblazer awards Monday night.
Barbara Finkelstein, left, and the late Judge Sheila Abdus-Salaam.
Barbara Finkelstein, CEO of Legal Services of the Hudson Valley, and Sheila Abdus-Salaam, who served as an associate justice of the Court of Appeals, received the Diversity Trailblazer awards Monday at the State Bar’s annual meeting in New York City.
“Ms. Finkelstein has served as the executive director for the Legal Services of the Hudson Valley since 1995, strengthening the organization through diversity and inclusion,” said the Committee Chair Sandra Irby Buchanan.
Rev. Greg Jacobs, husband of Judge Abdul-Salaam, and NYSBA President Sharon Stern Gerstman at the NYSBA annual meeting on Jan. 22. Photo: Jacques Cornell.
Finkelstein is the first woman to lead the nonprofit. Since 1995, the organization has provided free legal services to nearly 600,000 low-income people in Westchester, Putnam, Dutchess, Orange, Rockland, Sullivan and Ulster counties.
“We are also honored to award the family of the late Judge Sheila Abdus-Salaam a posthumous Diversity Trailblazer award for Judge Abdus-Salaam’s decades of service and leadership for diversity and inclusion in the legal community and her mentorship of diverse attorneys,” Buchanan said.
Abdus-Salaam, appointed by Gov. Andrew Cuomo in 2013, was the first African-American woman to serve on the Court of Appeals. Before that, she spent more than two decades as a justice on the state Supreme Court and in the Appellate Division of the First Department.
On April 12, Abdus-Salaam’s body was discovered floating in shallow water along the shore of the Hudson River in Harlem. Her death was ruled a suicide.
The statistics are alarming. Black men are 2.5 times more likely to be arrested than whites, 21 times more likely to be killed by police and twice as likely to be unarmed when killed by police.
Policing the Black Man: Arrest, Prosecution and Imprisonment
Pantheon Books, New York, 352 pages, $27.95
One of the great blessings of my New York City Bar Association membership was befriending the late Judge Sheila Abdus-Salaam who taught me that freedom is equality, empathy is a choice we make and acceptance of intolerance produces oppression.
Inequality, bias, empathy and oppression are major themes that dominate a new anthology edited by Professor Angela J. Davis, who has compiled eleven powerful essays that argue black men “are policed and treated worse than their similarly situated white counterparts at every step of the criminal justice system, from arrest through sentencing.”
The book draws attention to the disparities created by a “facially race-neutral system” that ostracizes offenders and stigmatizes blacks as criminals. In addition to identifying the root causes of this injustice, the book also examines the innovative ways enlightened public officials and scholars are tackling the problem. As such, the book makes a useful contribution to the national discussion that will produce change.
The statistics are alarming. Black men are 2.5 times more likely to be arrested than whites, 21 times more likely to be killed by police and twice as likely to be unarmed when killed by police. Meanwhile, black men constitute 34% of the American prison population and serve sentences that are 19.5% longer than white men for the same crime.
As chronicled by Professor Michelle Alexander in The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), one-third of the black men born in 2001 can expect to be incarcerated in their lifetimes, and the total number of black men in prison or jail, on probation, or on parole is roughly equal to the number enslaved in 1850. This “criminal caste system” tends to stigmatize black men for life, relegating them to a “second-class citizenship” of job discrimination, exclusion from voter rolls and jury service and disqualification from food stamps, public housing, health and welfare benefits and student loans.
In a masterful introductory essay, Bryan Stevenson, the director of Equal Justice Initiative and accomplished Supreme Court advocate, discusses the legacy of America’s sordid history of racial injustice and terror. In so doing, Stevenson examines the connection between lynching, capital punishment and racial disparities in the implementation of the death penalty. As noted by the editor, Stevenson’s essay “lays a solid foundation for the remainder of the book and is essential to the reader’s understanding of how and why the American criminal justice system continues to police black men.”
The most insightful essay is written by Professor Katheryn Russell-Brown, who focuses on the phenomenon of “implicit bias,” the “unconscious bias that results from exposure to negative stereotypes and attitudes,” particularly in police interactions with black men.
Russell-Brown notes that psychologists have developed many tests to measure “hidden bias.” In one computer simulation, 50 police officers were tested on their decision to shoot, based on photos showing a person with either a gun or a neutral object. The study concluded that “officers were more likely to shoot if the unarmed suspect was black.”
On a hopeful note, however, the same study also concluded that “repeated viewings of the simulation led to an elimination of racial bias,” and multiple exposures to the simulation “shifted the officers’ decision criteria for black suspects.”
As described by Russell-Brown, this and other similar studies have reached similar results: (1) police tend to respond in a racially-biased way toward blacks; (2) the decision to shoot is made more quickly when there is a black armed target; (3) police are more likely to see a black armed target where none exists and less likely to see a white one who does exist; (4) when targets do not match stereotypes, police take longer to decide when to shoot; (5) police show less implicit bias than members of the general public; and (6) a police officer’s personal beliefs and contact with minority communities affects levels of implicit bias.
Russell-Brown also discusses how training and education is assisting law enforcement and courts to recognize and counter racial bias. A widely-used program, entitled “Fair and Impartial Policing,” teaches officers about “implicit bias, how it works, and how it may impact their decision-making skills regarding the use of force.” She further notes that California Attorney General Kamala Harris established in 2015 the first such certified training program on implicit bias and procedural justice, and in 2016 the Department of Justice began requiring implicit bias training for 28,000 federal law enforcement agents and prosecutors.
Russell-Brown also highlights the work of U.S. District Judge Mark Bennett to increase awareness about implicit bias. The judge has urged all criminal justice system decision-makers to take the Implicit Association Test, an online test that measures hidden bias and has been taken by 1.5 million people.
In a concluding essay by former John Jay College President Jeremy Travis and Professor Bruce Western, the authors note that the “great markers of racial injustice have been violence and poverty.” Noting that poor and under-educated blacks are now incarcerated at an unprecedented level, the authors state that changing how governments respond to crime is vital to reducing prison populations.
Like Professor James Forman, Jr. (in a 2012 edition of the New York University Law Review), Travis and Western posit that mass incarceration is detrimental to public safety, rather than necessary to secure it. Forman notes that New York City has reduced crime while also reducing the number of people sent to prison. Such progress will require the increased use of diversion and other alternatives, reducing the time served in prison, decreasing the number of parole revocations, making better use of probationary resources and increasing human capital investments in education.
As observed by Forman, America incarcerates too many people generally and too many blacks specifically, thus creating “second-class citizenship” for millions. Like Professors Alexander and Forman, this book demonstrates how our society’s decision to heap shame and contempt on those who struggle and fail in a system designed to keep them locked up and locked out says far more about ourselves than it does about them.
Members of the defense bar see the two-year trend as troubling. But observers say the court, with so many new members, is all but sure to correct course going forward under the leadership of Chief Judge Janet DiFiore.
The Court of Appeals in Albany
The New York State Court of Appeals last year granted the fewest number of criminal appeals in a decade-and-a-half, according to numbers provided by the court. Only 25, or 1.11 percent, of the 2,244 cases decided in 2017 were granted an appeal by the high court. The percentage, likewise, represents a 15-year low for the court.
The numbers represent a significant drop-off during the first two years of the court under Chief Judge Janet DiFiore—something criminal defense attorneys have expressed concern over.
“From what I’m hearing, criminal defense lawyers seem to actually be alarmed at what’s going on at the court,” said Albany Law School professor Vincent Bonventre.
The concerns are born out of the stark change in acceptances the bar enjoyed in the years preceding the DiFiore court, but observers like Bonventre urge patience with a still-learning court full of relative newcomers.
Defense attorneys, though, have concrete reasons for what frustrations or concerns have developed over the past two years. Under DiFiore’s predecessor, Jonathan Lippman, the court took measures to increase its criminal appeal caseload.
Beginning in Lippman’s first year as chief judge, 2009, the court accepted 3.4 percent of criminal cases—a substantial increase from the previous year’s 2 percent during former Chief Judge Judith Kaye’s last year on the court.
During the Lippman years, the Court of Appeals granted no less than 3.85 percent of the criminal appeals presented to it in any given year, with a high in 2010 of 4.86 percent. This meant, in real terms, that 108 appeals were granted out of the 2,220 decided.
In a statement provided to the New York Law Journal, DiFiore responded to questions about the drop in criminal appeals granted, specifically compared to the overt attempts to grant criminal appeals under the Lippman court. DiFiore said the court has made no changes since she assumed the role of chief judge.
“The Court of Appeals has long been committed to giving careful and fair consideration to all motions and applications for leave to appeal and to ensuring that it grants leave to appeal in meritorious cases,” she said. “That was true in the past and it remains so now. The court’s policies and approach have not changed.”
Since her confirmation in January 2016, the court has seen a significant decrease in the rate of granted appeals overall. Only 1.87 percent of civil cases were granted by the court that year, compared to 5.42 percent in 2015. The criminal side saw a comparable drop, from 4.13 percent to 1.32 percent in 2016.
However, last year saw civil cases rebound from those lows, as 4.13 percent of appeals were granted by the court. The criminal side appeal trend, meanwhile, continued downward.
DiFiore noted that the number of leaves granted varies from year to year, “and is likely to do so in the future.” The court’s focus, she said, will remain on carefully choosing appeals “that present issues of statewide importance.”
“The judges are aware that there is little benefit to granting leave in a case where the Appellate Division has correctly applied settled law to the facts, or where issues of jurisdiction or preservation would prevent them from reaching significant questions of New York law,” she said. “Leave grants in such cases are costly to litigants and wasteful of court resources.”
Members of the defense bar, however, registered varying degrees of concern over the recent trend.
“Everyone should feel like they’ve had their day in court, but in light of the precipitous drop in the number of criminal cases the court has agreed to review in recent years, that goal is being jeopardized,” the Legal Aid Society’s David Loftis, attorney-in-charge of the defender organization’s post-conviction and forensic litigation unit, said in a statement. He went on to urge DiFiore to examine the situation and take steps to “address this troubling pattern.”
Buffalo appellate attorney Timothy Murphy, a board member of the New York State Association of Criminal Defense Lawyers, said the criminal appellate defense bar would “love” to see the numbers of appeals granted increase again.
“There are a lot of interesting issues we believe could be considered by the court that aren’t being considered at this point,” he said.
While he was hearing similar concerns from the defense bar, Albany Law School’s Bonventre, a longtime observer of the state’s high court, says there are mitigating factors that can help explain the recent dynamics. Perhaps more importantly, he sees the long-term trajectory of the court moving in favor of criminal defendants.
More than anything, the current court is a very “young” court, Bonventre said. All of the judges have been appointed by the current governor, Andrew Cuomo. Its longest-serving member, Associate Judge Jenny Rivera, has served for just under five years. Four of the seven judges, including DiFiore, have served on the court for two years or less. Judge Paul Feinman, the most recent to join the bench, was confirmed in June 2017, after the tragic and unexpected passing of former Judge Sheila Abdus-Salaam.
During the Lippman years, Bonventre noted, a number of the veteran judges, first among them the chief judge himself, were committed to increasing criminal appeals. These included former Senior Associate Judge Eugene Pigott Jr. and Associate Judge Robert Smith, both of whom were nominated by former Gov. George Pataki, a Republican. Lippman was nominated by former Gov. David Paterson, a Democrat.
“What you have in their stead are brand-new judges,” Bonventre said.
As the judges become more experienced, he believes the court will begin to find a balance that will mean more criminal appeals being granted. As proof, he points to his analysis of early voting patterns by the DiFiore court. While criminal decisions have been overwhelmingly “conservatively” pro-prosecution, his studies show that, on the civil side, the court has ruled in a less stark way, often siding with workers and consumers in a more “liberal” way.
Even more significantly, for Bonventre, is the person leading the court going forward. On paper, DiFiore’s background might seem to indicate a confirmation of the concerns raised over the direction of criminal appeals. A Republican turned Democrat, DiFiore served as Westchester district attorney for a decade before joining the state’s high court.
However, Bonventre says by all indications DiFiore has positioned herself as someone deeply concerned about the rights of defendants in the state’s court system. He noted her early work, as the head of court administration, attempting to tackle the substantial backlog of cases in some areas of the state, as well as recent initiatives aimed at improving discovery access for defense attorneys.
“We’re not talking about a militantly law-and-order chief judge—not at all,” he said. “This is definitely someone who is extremely sympathetic to the rights of the accused, who is extremely concerned about ensuring proper representation for the accused.”
Given more than a few years under her belt as both the state’s chief jurist, as well as the head administrator for the “mammoth” court system, Bonventre believes DiFiore will help lead the court—along with recent arrivals to the bench there that are expected to add to its liberal wing—to a “much more balanced” approach with regard to granting criminal appeals.
“I have every reason to think that’s the case,” he said.
For her part, the chief judge projected consistency and diligence on the issue going forward.
“I am confident that if a case raises an issue within the court’s jurisdiction that needs clarification or is of statewide import, it will not be overlooked,” she said.
