On the morning of February 1, Selena Scriven was caught selling a cigarette to a man outside a city food stamp office just east of Union Square. “I was just trying to be nice,” she told the arresting officer, according to the criminal complaint against her. After the officer recovered fifty cents from her front jacket pocket, the 51-year-old woman — currently residing in a Manhattan women’s shelter, and on parole for a burglary committed in 2000 — was handcuffed and taken to the 13th Precinct, where she was fingerprinted, photographed, and kept overnight in a cell.
That same morning, the office of Manhattan District Attorney Cy Vance released a memo touting a new initiative aimed at reducing the prosecution of low-level offenses. With “very limited exceptions,” the D.A.’s office promised to no longer prosecute unlicensed general vendors — people who sell handbags or churros or cigarettes on the street — regardless of their criminal history. The shift in pre-trial policy, an attempt to “promote fairness and address racial disparities, and otherwise improve the efficiency of this overburdened court,” would go into effect immediately.
The following day, after more than 24 hours in police custody, Scriven was arraigned in Manhattan Criminal Court on the charge of unlicensed general vending. As she stood before the judge, the assembly-line feel of the courtroom, where public defenders scurry from makeshift desks to quickly confer with their dozens of clients, seemed to pause briefly. Any basic reading of the previous day’s memo suggested that this was the exact type of infraction the D.A.’s office would no longer pursue. But were the prosecutors actually planning to follow through on Vance’s latest promised reform?
Apparently not. Instead of declining the case, Assistant District Attorney Andrea Osgood informed the judge that “the people” would not be offering any sort of plea, and would be seeking a misdemeanor charge once the case returned to court next month. If convicted, Scriven would be found in violation of her parole, and could wind up back in prison.
Distraught, Scriven wondered aloud outside the courtroom: “They’re trying to lock me up over one cigarette? Please tell me: Who got hurt?” (A spokesperson for the Manhattan D.A.’s office could not provide information about specific cases by publication time.)
The public defenders who’d stopped to take note of Scriven’s case were also frustrated, but not surprised. “If you want real vision for changing the definition of crime, these announcements aren’t going to do it,” Zohra Ahmed, an attorney and member of 5 Boro Defenders, a coalition of public defenders organizing around systemic injustices in the criminal legal system, told the Voice.
Jenna Minor, representing Scriven with the Legal Aid Society, agreed: “It’s all lip service. The press release makes them feel warm and fuzzy, but they always find a way around that stuff.”
To hear Cy Vance tell it, you’d think the Manhattan district attorney’s office was among the city’s most enlightened leaders of the growing movement for criminal justice reform. Since taking the job in 2010, Vance has committed to “laying the groundwork” for closing Rikers Island, while touting a host of “structural changes” intended to steer low-level offenders away from the court system. Within the past few weeks, his office has announced that it will be joining Brooklyn District Attorney Eric Gonzalez in not requesting bail for nonviolent misdemeanors, and reiterated a policy of declining to prosecute quality-of-life offenses such as turnstile-jumping.
Such announcements usually earn Vance a “progressive” label and positive press coverage — desperately needed after his failure to prosecute Harvey Weinstein and members of the Trump family put him in the national spotlight last year. Perhaps realizing this, Vance’s office has a tendency to re-announce initiatives that it previously claimed to have implemented. But even when the policy promise is new, defense attorneys and legal observers say, Vance’s so-called reforms often amount to nothing more than empty rhetoric.
“It’s incredible for us who work in the system because they’ll just announce this policy, and everyone believes it without actually fact-checking anything,” says Rebecca Kavanagh, a staff attorney with the Legal Aid Society. “So often it’s just media spin that’s not actually meant to be followed through on.”
Take, for example, the issue of cash bail. On any given day, an estimated 7,633 people incarcerated at Rikers — about 78 percent of the jail’s total population — are there awaiting trial, according to data released last year by the Independent Budget Office. Of those pre-trial detainees, nearly three-quarters are there because they can’t afford bail. And there may be no one more responsible for that fact than Vance: A separate study from last year found that Manhattan leads all boroughs in sending defendants to Rikers, and that those facing misdemeanor charges are significantly more likely to end up in the notorious facility if prosecuted in a Manhattan courtroom.
So while Vance earned praise for his bail reform announcement, public defenders say that little has changed so far, and that the situation probably won’t improve any time soon. That’s because, as Minor puts it, “the policy’s exceptions almost entirely swallow the rule.” Those who are ineligible for the new policy, and thus still forced to pay bail, include anyone on probation, parole, or supervised release; defendants with a prior felony conviction in the past 10 years; defendants with pending felony or misdemeanor cases; defendants whose supervised release is deemed inappropriate by the prosecutor; or defendants in any case involving a victim.
“The memo that went out would have been a lot shorter if they simply identified the folks that were eligible,” quips Stan Germán, executive director of New York County Defender Services. “What I’m hearing from staff attorneys is that they’re not seeing this implemented in the way that it was put out that it’d be implemented.”
As the momentum of the city’s criminal justice reform movement collides with deep-rooted courtroom norms, some advocates are seeking other means of holding progressive leaders accountable. A new project, Court Watch NYC — a collaboration among VOCAL-NY, the Brooklyn Community Bail Fund, and 5 Boro Defenders — recently started placing volunteer observers in Manhattan and Brooklyn courtrooms to ensure that Vance and Gonzalez are following through on their campaign promises. Organizers say they hope to “shift court practices and culture” through community-driven accountability, and to eventually release data on how prosecutors are actually implementing their office’s policies.
Fresh off a two-week pilot program, the first set of watchers are quickly learning what the public defenders have long known about district attorneys’ supposed reforms. On day one of the pilot, a Manhattan prosecutor was observed requesting $7,500 bail on a misdemeanor shoplifting case. A few days later, another of Vance’s assistants failed to dismiss charges for a range of low-level offenses, including fare-beating and “aggressive begging in a public space.” For these crimes of poverty, both defendants accepted plea bargains that included a $200 surcharge to the court.
For all arraignments, the watchers are given forms to record the defendant’s information, as well the charge, requested bail, plea offer, and names of the judge and prosecutor. In some cases, the district attorney’s communication team will actually engage with the project — after the first day, a Vance spokesperson responded to a Court Watch tweet to note that the shoplifter’s “extensive criminal history” had influenced the prosecutor’s decision to ask for bail. More often, the tracking goes unnoticed.
Meanwhile, the system continues to churn, its vast and uncompromising rubric still determining the personal freedom of so many New Yorkers. Last Friday, within an hour of Scriven’s arraignment, 5 Boro Defenders attorney Ahmed stood before the same judge to argue that her client did not deserve to be sent to prison. This woman was two months pregnant and living in a homeless shelter, facing a criminal contempt charge stemming from a family dispute. By the prosecutor’s own admission, the claims would never make it past a grand jury, and the charges would eventually be dropped. The woman had a previous warrant, related to the same family dispute, that disqualified her from supervised release.
The defendant’s brother, fighting back tears, told Ahmed before the hearing that they couldn’t afford bail, but personally promised to escort his pregnant sister to her next court date. She’d make sure the court knew that, Ahmed assured him, but it probably wouldn’t make a difference anyway. A few minutes later, the judge granted the prosecutor’s recommended bail — $25,000 bond or $15,000 in cash — and the woman was sent off to Rikers.
* Correction: February 22, 2018
In a previous version of this article, Zohra Ahmed was mistakenly identified as an attorney with 5 Boro Defenders. She is actually a public defender who is a member of the 5 Boro Defenders. The article has been updated to reflect that.