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On November 25, 2020, Proskauer filed a motion for leave to file an amicus brief on behalf of Citizens for Juvenile Justice and the Committee for Public Counsel Services, Youth Advocacy Division in support of Raymond Concepcion, a youth with disabilities who was automatically tried as an adult, convicted of first-degree murder and sentenced to life imprisonment with the possibility of parole after 20 years.  Proskauer’s brief urged the Supreme Judicial Court of Massachusetts to find that section 74 of the Youthful Offender Act is unconstitutional, reverse Raymond’s conviction and remand the case to the trial court for further proceedings.

Background

When Raymond was 15 years old, two adult gang members ordered him to shoot a stranger, promising that he could leave the gang if he complied.  Out of fear, Raymond did as instructed and shot a man, killing him.  Raymond has an IQ of 66 and the developmental maturity of an eight- or nine-year-old.  As a younger child living in the Dominican Republic, Raymond suffered emotional distress after witnessing shootings of multiple family members.  When he was 12 years old, Raymond moved to Boston, where he attended three different public schools and failed nearly all his classes.  An expert testified to Raymond’s psychological, social and intellectual capacities.  Nevertheless, pursuant to section 74 of the Youthful Offender Act, due to his age and alleged offense, Raymond was automatically tried in adult court, where he was automatically sentenced to life imprisonment and given an above-minimum parole eligibility date.  Raymond’s youth and intellectual disability were disregarded at his indictment, trial and sentencing.

In 2018, Proskauer highlighted the importance of a New York law that gives those with criminal convictions an opportunity to build a better life. New York Crim. Proc. Law § 160.59 (“CPL 160.59”) allows persons convicted of certain crimes to apply for their criminal record to be sealed upon meeting two requirements: (1) at least ten years have passed since their release from prison; and (2) a record of two or fewer criminal convictions only one of which can be a felony.  Once sealed, these records are inaccessible to the public and through routine background checks, such as those used by landlords and employers. Though CPL 160.59 has provided some with a needed second chance, it has excluded far too many people.

Many other states have implemented their own laws permitting criminal records to be sealed — in 2019 alone, 31 states and D.C. enacted bills creating, expanding, or streamlining conviction record sealing, set-asides, or expungement. New York was one of those states, reforming the system by automatically sealing drug convictions for now decriminalized offenses, as well as sealing certain pending matters where there has been no activity in the past five years.  Nevertheless, New York did not take the opportunity to expand the scope of CPL 160.59 and thus it remains severely underused compared to original estimates.

Last month, the U.S. state with the highest rate of incarceration (in the country with the largest prison population) took steps to reduce its incarceration of non-violent offenders.

Oklahoma’s Governor Kevin Stitt (Republican) commuted the sentences of over 500 inmates. All of these individuals were non-violent offenders with an average age of less than 40. This decision points to a larger shift in conventional wisdom concerning mass incarceration and its effect on public safety.

A 2017 study by the Vera Institute of Justice demonstrates the weak correlation over the past 40 years between incarceration and public safety. Out of concern for the skyrocketing cost of overcrowded prisons, cost-conscious public officials have joined with those desiring a less punitive, equitable system to rethink criminal justice in America. A consensus is building around the need to start directing resources to rehabilitation as opposed to incarceration. According to Governor Stitt, “[the goal] has been about changing the culture and process as we prepare to release individuals and to help set them up for success upon reentry into society.”

Until recently, conventional wisdom among prosecutors dictated that long prison terms were vital to public safety.  They took seriously the direction “to charge and pursue the most serious, readily provable offenses,” and measured success in terms of trial wins and convictions.  Conventional wisdom, however, is changing from this purely punitive model as prosecutors are now beginning to recognize the great price we pay — both the dollar and human cost — for mass incarceration in America.

At a panel discussion earlier this week, “Prosecutors and the Criminal Justice Reform Movement,” Lucy Lang, Executive Director of the Institute for Innovation in Prosecution (“IIP”) at John Jay College, and Sam Rivera, Associate Vice President of Housing at The Fortune Society, discussed the role of the prosecutor in bringing about systemic change.

A Proskauer team recently succeeded in obtaining parole on behalf of 69-year-old pro bono client Judith Clark, who has been in prison for nearly 38 years.  This case may play an important role in effecting much needed parole reform in New York. Personally, it has been among the most satisfying cases on which I have ever worked.

Judith was the getaway driver for the infamous 1981 Brinks robbery that resulted in the killings of two police officers and a Brinks guard, and was sentenced to 75 years to life in prison.  Judith’s transformation from radical revolutionary to a completely rehabilitated person began in the mid-1980s.  Since then, she has devoted herself to helping others.  Her efforts included starting an AIDS counseling program for prisoners that was copied nationwide, building a prison college program (and earning two degrees), helping to run her prison’s infant care center for incarcerated mothers, training more than a dozen dogs to help wounded veterans and law enforcement, and individually mentoring and counseling hundreds of women to help them turn their lives around.  After personally interviewing Judith in 2016, Governor Cuomo granted her clemency, thereby making her eligible for parole.