This sensible policy will save taxpayers millions of dollars in prison and other costs; enacted nationwide, it could save tens of billions of dollars. As with so many needed reforms, it threatens the useless jobs of thousands of cops, prison guards, private contractors, and others … who spend countless millions of $$$$$$$$$ lobbying against needed reforms.
Excerpts from the Article:
On Jan. 1, 2020, a highly publicized criminal justice reform law went into effect in New York state. In the wake of the law’s enactment, the Governor, legislators and the legal community have primarily focused on changes to two aspects of the criminal procedure law: bail and discovery. While these changes have caught the headlines, the Legislature has instituted another modification to the Criminal Procedure Law that could even more significantly impact the lives of New Yorkers. The Legislature has amended the text of CPL 150.20(1)(a), which covers police practices for issuing appearance tickets for certain offenses. The new text of CPL 150.20(1)(a) reads,
Whenever a police officer is authorized pursuant to section 140.10 of this title to arrest a person without a warrant for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law, he [may] shall, except as set out in paragraph (b) of this subdivision, subject to the provisions of subdivisions three and four of section 150.40 of this title, instead issue to and serve upon such person an appearance ticket.
(emphasis added). By replacing the word “may” with “shall”, the plain meaning of CPL 150.20(1)(a) now bars arrests for most low-level offenses and instead mandates that police serve an appearance ticket upon most individuals who have committed misdemeanors or violations. Specifically, the statute states that police must not only issue an appearance ticket to an individual suspected of a low level crime but must issue a ticket instead of arresting that individual. An “appearance ticket” in the statute refers to any instrument issued by an authorized officer that directs a person to appear in criminal court. In practice, an “appearance ticket” can refer to a desk appearance ticket (DAT), which is issued at the police precinct following an arrest, or a criminal summons, for which an arrest is not required. Because CPL 150.20(1)(a) bars arrests for most low level crimes, it follows that the police are required to issue a criminal summons on the street to a person who is suspected of a low level crime as opposed to issuing a DAT, for which an arrest is required. In limited circumstances pursuant to 150.20(1)(b), such as a sex-related offense or domestic violence, the police can arrest the individual and not issue an appearance ticket.
This alteration constitutes a sea change in arrest procedures in New York state, where until now, the police have had discretion regarding when to issue an appearance ticket and when to arrest. In 2018, in New York City alone, 128,194 individuals were arrested for misdemeanor offenses, and countless more were arrested for violations. Under the new CPL 150.20(1)(a), a large majority of these individuals can no longer be arrested. Although the meaning of the law is plain and unequivocal, nobody—not the Governor, legislators, or criminal justice stakeholders—have addressed its implementation or ramifications.
The question then becomes, if officers are not permitted to arrest an individual when there is probable cause that a low level crime was committed, then what level of intrusion is permitted before the officer issues an appearance ticket? Drawing from People v. DeBour, which defines the levels of police intrusion, police will be able to ask the suspect questions implying criminality (DeBour level 2) and will be able to forcibly stop and detain the individual (DeBour level 3). Prior to the change in law, it was common police practice to either handcuff individuals or to transport them to a precinct before issuing appearance tickets. However, both of those actions constitute arrests and therefore are now prohibited by 150.20(1)(a) for most low level offenses.
First, the Court of Appeals has held that handcuffing an individual constitutes an arrest unless the individual poses a threat to the officer’s safety. In People v. Allen, 73 N.Y.2d 378 (1989), the Court of Appeals reasoned that the use of handcuffs will constitute an arrest if they are applied gratuitously and for reasons unrelated to the threat of danger to officers. See also People v. Tirado, 69 N.Y.2d 863 (1987); People v. Robinson, 282 A.D.2d 75 (1st Dept. 2001). In Allen, the police handcuffing a suspect did not constitute an arrest because the handcuffing took place following a chaotic chase of the suspect and because the police had reasonable suspicion that the suspect was armed and dangerous. These factors rose to the requisite level of danger to permit the application of handcuffs without constituting an arrest. This New York jurisprudence indicates that after the passage of CPL 150.20(1)(a), the police will only be able to place handcuffs on an individual suspected of a low level crime if they believe that that suspect is armed and dangerous or otherwise poses a threat to police. For most low level crimes covered by CPL 150.20(1)(a), that will not be the case. In most situations, individuals charged with low level offenses will pose minimal danger to the officers, which will make the act of handcuffing an arrest. Thus, police will only be able to forcibly stop individuals up to the point of Debour level 3 before issuing them tickets for low level crimes and will not be able to handcuff them unless they pose a threat to the officers.
Second, transporting an individual suspected of low level crimes to the police precinct for booking before issuing them an appearance ticket (the procedure for issuing a DAT) likely constitutes an arrest and is therefore prohibited for most low level offenses. In People v. Hicks, 68 N.Y.2d 234 (2002), the Court of Appeals held that the suspect was not arrested when he was transported for one mile in a police cruiser and without handcuffs for the purpose of being identified by a witness on the street. However, in Hicks, the court noted that if the person were transported to the police station, such transport would have increased the level of intrusion to an arrest. Consequently, if the police transport an individual to the precinct solely for the purpose of issuing an appearance ticket, such action will likely constitute an arrest in violation of CPL 150.20(1)(a).
For low level crimes covered by CPL 150.20(1)(a), the police will not be able to place an individual in handcuffs unless their safety is threatened and will not be able to transport an individual to the precinct prior to the issuance of the appearance ticket. Therefore, for the vast majority of low level offenses, the police will have to issue appearance tickets on the street following a maximum DeBour level 3 intrusion.
At this point, no police department in New York state has implemented new protocols for street level interactions for low level crimes. This means that a large number of people have already been arrested for low level crimes who should have been issued appearance tickets instead. Such action violates the Legislature’s explicit decision in CPL 150.20(1)(a) to reform arrest practices, which will limit the negative consequences of arrests such as missed work, neglected child care, and most importantly, a significant invasion of an individual’s privacy and personal integrity.
Criminal justice stakeholders throughout New York must be aware of this paradigm-shifting development in arrest and ticketing procedures.