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No Bargains Here
By Rick Marshall

No-plea zones sound like a tough approach to gun crime—but will they actually make streets safer?

Last week, two men were shot on Sheridan Avenue in Albany. A week earlier, gun-wielding thieves broke into a Second Avenue home and robbed its owner. And a week before that, a partially blind man was robbed at gunpoint, a 19-year-old male was shot to death and a woman was robbed by an armed assailant while unloading groceries—all along different stretches of Myrtle Avenue.

For Albany resident Leonard Morgenbesser, keeper of a running tally of the city’s gun-related crimes (as reported by local media) since September 2002, there’s no shortage of evidence indicating that Albany has a problem with guns. According to his records, one incident occurs every four days—making the question not so much whether Albany has a problem, but how to solve it.

“Business as usual is just not enough,” said Morgenbesser after a recent meeting of the Albany Common Council. Earlier in the meeting, Councilman Glen Casey (Ward 11) introduced a controversial resolution targeting gun-related crimes, their perpetrators and the system of justice that determines their fates. What effect that resolution could have, however, is the subject of much debate.

If passed, the resolution would call upon Albany County District Attorney David Soares to establish “no-plea zones” in areas of the city with a high number of gun-related arrests, homicides or injuries. Anyone arrested for gun-related offenses in these zones would be barred from negotiating for a reduced charge, instead facing a choice between a guilty plea to the initial charges or trial by jury. Supporters of the resolution say that with such zones in effect, potential criminals might second-guess arming themselves within the city or even committing a crime altogether. Many also argue that the stiffer sentences would cut down on criminals returning to the streets and reoffending.

Although the general feasibility and effectiveness of such a policy has ignited heated discussion in criminal justice circles, limiting it to certain zones has also come in for criticism.

“If [a no-plea policy] is going to be effective, it really needs to be applied to the entire city,” argued Albany Police Department spokesman Detective James Miller, echoing the assessment of many supporters of such get-tough measures. “If you’re carrying a weapon, the harm is just as great in any part of the city you’re in.” (Morgenbesser confessed that he would like an even more “radical” application—possibly countywide.)

According to Casey, such a broad application of the no-plea policy isn’t off the table, either.

“I’m just putting it out there as something we can talk about,” said Casey, adding that a similar proposal was sent to Soares’ predecessor, Paul Clyne, but the city never received a response. While the resolution is nonbinding and wouldn’t obligate Soares to act, Casey said he wouldn’t ask for the resolution to be reviewed by the city’s public safety committee—where it now resides—until he had a chance to talk with Soares and Albany Police Chief James Turley.

“This legislation isn’t intended to hamper the DA’s office or restrict its abilities,” said Casey.

Yet, Richard Arthur, a spokesman for Soares’ office, said that’s exactly what such a policy would do.

Along with having concerns about the constitutionality of applying different standards of law enforcement to certain geographic areas, Arthur said the strain it would put on prosecutorial resources would be immense. Assuming that many individuals arrested for gun-related crimes in no-plea zones would opt to take their chances with a trial rather than simply pleading guilty, the number of trials—often lengthy endeavors requiring significant prosecutorial manpower—would skyrocket.

“I don’t think people appreciate the tremendous increase in resources [this policy] would require,” said Arthur, adding that in many cases, a plea bargain is the only way to ensure a conviction.

“Very often, the charge [police] arrest under isn’t entirely supported by the evidence they produce,” explained Arthur. “He may be charged with a first-degree felony, but the evidence might not be there—so [under the guidelines of a no-plea policy] what do you do? Do you drop the case if you know it will be dismissed in trial?”

“The most likely result of eliminating plea bargaining for gun crimes would be fewer successful prosecutions for such crimes,” agreed Soares in a recent statement.

Plea bargaining with individuals who might have information about higher-level criminals can often lead to arrests with a greater impact on public safety and possibly prevent future crimes, added Arthur.

The statement issued by Soares also cited such creative use of prosecutorial technique as a central part of his campaign for district attorney, adding that “[I] promised the people of Albany County that I would make intelligent use of prosecutorial discretion in all prosecutions. To engage in no-plea zones in certain portions of the County would directly negate that promise.”

That’s not to say that such policies haven’t been implemented successfully.

In 2004, Buffalo’s Common Council designated several high-crime areas of the city as no-plea zones. Karen Greenspan, the City Court bureau chief for the Erie County District Attorney’s office at the time, said she wanted to acknowledge the efforts of local community groups that had been working toward reducing crime in the city. The groups had petitioned her to adopt the no-plea policy on a small number of streets, so the experiment began with several notoriously crime-ridden blocks in the city’s commercial district.

“After the first five arrests [on one of the city blocks], we didn’t see any more,” she said. “I think the word got out. I really do.”

But she was quick to add that it’s difficult to gauge whether criminal activity was effectively reduced or simply dispersed. In a 2004 interview, Greenspan indicated that, while the policy was an effective way to grant certain streets a reprieve from crime, a citywide application would be nearly impossible to maintain.

“You can’t take a no-plea policy on every case,” said Greenspan, echoing Soares’ sentiment. “It would shut the entire court system down. With the volume of cases coming into City Court and with some cases of poor quality, if you do ‘no plea,’ you’ll just try them and lose.”

“It isn’t the plea arrangement that the public doesn’t like, it’s the sentence that was imposed,” noted Erie County District Attorney Frank Clark. “In many cases, the plea allowed a far more severe sentence.”

According to Clark, in order for such a policy to have a real effect upon the amount of crime committed in a region, it needs to be enacted along with other changes in the criminal-justice system. Buffalo City Court judges and those involved with the court system recommended that along with the no-plea policy, court proceedings be moved into the communities where the crime occurred and some of the trials be held during the evening hours to make it easier for witnesses and victims to testify. Several of the city’s judges also recommended sending offenders back to the judges who initially handled their cases if they violated probation, and several officials in the police department requested better training for officers regarding evidence gathering and other procedures. By strengthening cases, they argued, the trial avenue would become a more effective part of the no-plea policy. None of these recommendations has yet been implemented.

In Buffalo, as in Albany, the most significant obstacle to making comprehensive changes in the criminal-justice system is resources. Without adding more prosecutors or police officers to the mix, said Clark, the potential to start churning your wheels and getting no where is immense.

Yet, with similar no-plea policies being enacted in one form or another around the nation (Morgenbesser says a Memphis, Tenn., no-plea policy on drug- and gun-crimes first caught his eye last year and prompted him to push for similar policies here), the debate continues in criminal-justice circles over whether such policies are the wave of the future or simply a vesti-gial remnant of harsher times in America. Morgenbesser’s search for more information about no-plea policies’ effectiveness has been frustrating, as very few of the nation’s DA offices have entertained such proposals.

During a recent interview, Morgenbesser wondered aloud about the contrast between New York’s shift toward more prosecutorial discretion in drug crimes (i.e., softening of the Rockefeller drug laws) and a policy that would reduce discretion in gun crimes.

According to Morgenbesser, hesitation about the resources necessary for a no-plea approach results from assuming that the rate of offenders will remain steady, despite the policy’s potential to reduce the influx of offenders. “This could be a potential deterrent for gun crime in the first instance,” he explained.

One look at his growing list of gun crimes, said Morgenbesser, is proof enough that new policies are worth a try.

“We need to be bold enough to try this policy,” he reasoned. “If it doesn’t work, we can go back to business as usual—but if we never give it a try, we’ll never know.”

—Rick Marshall

What a Week

Rudy Will Ruin You

New York City agreed to pay nearly $5 million to AIDS advocacy group Housing Works last week as part of a settlement with the nonprofit organization. The group is one of several to file lawsuits against former Mayor Rudolph Giuliani’s administration for illegally retaliating against its critics by taking away government contracts and initiating financial investigations. Housing Works lost city funding in 1997 after protesting Giuliani-sponsored changes in the city’s welfare policies and main AIDS agency. City officials claim that the decision to settle was based on the “unpredictability of litigation,” but an investigation during the lawsuit showed that groups with similar financial practices, but quieter public presence, never lost funding.

Steroids Bad, Sweatshops Good

Members of the Industrial Workers of the World handed out “sweat-free” baseball cards and peanuts around Cooperstown last week as part of a campaign to draw attention to labor abuse among manufacturers of Major League Baseball merchandise. MLB merch generates the highest revenue of any professional sport in the nation, but the league’s ambiguous stance on manufacturers’ labor practices has garnered attention from labor-rights groups over the last decade. Rawlings, the league’s official baseball supplier, pays its Costa Rica workers $55 per week and was cited for labor abuse in a 2003 New York Times story, but MLB officials dismissed the allegations because the pay was “above the country’s average wage.”

Loyalty Has Its Benefits

The first section of a 1,100-mile oil pipeline from United States ally Azerbaijan to the Mediterranean port of Ceyhan was opened last week as part of an effort to reduce the United States’ dependence on Middle Eastern oil and Russian pipelines. The $3.2 billion pipeline is expected to be an economic boon to the countries it passes through—many of which, including Azerbaijan, were named as members of the Bush administration’s “coalition of the willing.” A day before the pipeline’s opening celebrations, protesters calling for free elections were arrested by the Azerbaijan police due to “safety concerns” for the new pipeline.

In the Balance

photo:John Whipple

The fate of the old Freihofer’s bakery in Troy, which the owners want to demolish but historic-preservation groups want to save, will be decided by a judge today (Thursday).

Loose Ends

The two Albany Police officers involved in the shooting death of bystander David Scaringe [“Death and Disbelief,” Newsfront, Jan. 8, 2004] are being encouraged by administration officials to accept permanent medical disability at 75 percent of their current salaries, according to the Times Union. They have not accepted the offer at this time. . . . Five veterans remaining at the financially troubled Tyler Arms veterans home [“Movin’ On,” Newsfront, April 14] on Madison Avenue in Albany, who had been given a deadline to move out by the end of May, were given an extension until June 21 at an eviction hearing. They say they will go willingly, but in the meantime will also continue their search for buyers who will incorporate veterans’ housing into their plans for the buildings. . . . New Paltz Mayor Jason West will stand trial for marrying same-sex couples without a license [“First Comes Love, Then Comes . . .” April 8, 2004], the New York State Court of Appeals ruled Friday. The court rejected his bid to have the constitutionality of the domestic-relations law considered first, because other challenges to that law, by couples themselves, are already in process.

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