The collateral consequences of seeking order through disorder: New York's narcotics eviction program

Harvard Civil Rights-Civil Liberties Law Review

Volumn 43, Issue 2, 2008, Pages 539-580

  Levy, Scott Duffield ^a  

^a Nancy Gertner   (United States)

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EID: 47049113839     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (351)

1. For a comprehensive account of this phenomenon, see JONATHAN SIMON, GOVERNING THROUGH CRIME: HOW THE WAR ON CRIME TRANSFORMED AMERICAN DEMOCRACY AND CREATED A CULTURE OF FEAR (2007)
2. [hereinafter GOVERNING THROUGH CRIME 2007].
3. See also DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN CONTEMPORARY SOCIETY (2001);
4. Jonathan Simon, Governing Through Crime, in THE CRIME CONUNDRUM: ESSAYS ON CRIMINAL JUSTICE 171, 173 (Lawrence M. Friedman & George Fisher eds., 1997)
5. [hereinafter Governing Through Crime 1997].
6. Governing Through Crime 1997, supra note 1, at 173-74.
7. See. e.g., Sarah Geraghty, Challenging the Banishment of Registered Sex Offenders from the State of Georgia: A Practitioner's Perspective, 42 HARV. C.R.-C.L. L. REV. 513 (2007) (discussing residential restrictions for registered sex offenders in Georgia);
8. Debra Livingston. Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing, 97 COLUM, L. REV. 551, 640-45 (1997) (discussing anti-gang injunctions in California);
9. Jeannie Suk, Criminal Law Comes Home, 116 YALE L.J. 2, 42-64 (2006) (describing the issuance of order of protection in domestic violence cases as de facto divorce).
10. See infra Part II(b)(iv).
11. See Jeremy Travis, Invisible Punishment: An Instrument of Social Exclusion, in INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT 15, 15-36 (Marc Mauer & Meda Chesney-Lind eds., 2002)
12. [hereinafter INVISIBLE PUNISHMENT].
13. 535 U.S. 125 (2002). In Rucker, the Supreme Court held that the Anti-Drug Abuse Act of 1988 allowed local housing authorities to evict a tenant from federally funded public housing when a member of the tenant's family engages in drug-related criminal activity, regardless of whether the tenant knew or had reason to know of the activity.
14. Id. at 136. The Court held that the housing authority in Oakland, California had acted within statutory limits when it evicted Pearlie Rucker, a 63-year-old great-grandmother, because her daughter, who suffered from mental retardation, had been found with a crack pipe three miles from her project building, and Willie Lees, a 71-year-old grandmother whose grandson had been caught smoking marijuana in a parking lot.
15. See Dahlia Lithwick, Too Old to Narc, SLATE, Feb. 19, 2002, http:/ /www.state.com/id/2062274 (last visited Mar. 9, 2008).
16. For an example of the available academic literature on Rucker, see Anne C. Fleming, Protecting the Innocent: The Future of Mentally Disabled Tenants in Federally Subsidized Housing After HUD v. Rucker, 40 HARV. C.R.-C.L. L. REV. 197 (2005). Because of the dearth of literature about narcotics evictions in private housing, this Note draws heavily on the public housing literature.
17. Lisa Weil, Drug-Related Evictions in Public Housing: Congress' Addiction to a Quick Fix, 9 YALE L. & POL'Y REV. 161, 172 (1991) (quoting David Echols, Executive Director of the New Haven Public Housing Authority).
18. This is a version of the familiar "security versus liberty" dichotomy.
19. Under the Bawdy House law rubric, an "innocent tenant" is a tenant of record who neither knew of nor acquiesced in the illegal behavior serving as the basis for a narcotics-based eviction. 1895 Grand Concourse Assocs, v. Ramos, 685 N.Y.S.2d 580, 582 (N.Y. Civ. Ct. 1998). The ailing grandmother who is ignorant of her grandchildren's illegal activity is the quintessential example. See Normandy Realty Inc. v. Boyer, 773 N.Y.S.2d 186, 188 (N.Y. Civ. Ct. 2003) (noting respondent had congestive heart disease and kidney disease and used walking can of oxygen).
20. See infra Part 111(a).
21. See, e.g., Todd R. Clear et al., Coercive Mobility and Crime: A Preliminary Examination of Concentrated Incarceration and Social Disorganization, 20 JUST. Q. 33 (2003);
22. Jeffrey Fagan et al., Reciprocal Effects of Crime and Incarceration in New York City Neighborhoods, 30 FORDHAM URB. L.J. 1551, 1552 (2003);
23. Tracey L. Meares, Social Organization and Drug Law Enforcement, 35 AM. CRIM. L. REV. 191 (1998);
24. Dina R. Rose & Todd R. Clear, Incarceration, Social Capital, and Crime: Implications for Social Disorganization Theory, 36 CRIMINOLOGY 441 (1998).
25. Clear et al., supra note 11, at 55.
26. Id. See also Todd R. Clear, The Problem with "Addition by Subtraction": The Prison-Crime Relationship in Low-Income Communities, in INVISIBLE PUNISHMENT, supra note 5, at 181-93;
27. Meares, supra note 11 ;
28. Tracey L. Meares, Neal Katyal & Dan M. Kahan, Updating the Study of Punishment, 56 STAN. L. REV. 1171, 1186-93 (2004);
29. Rose & Clear, supra note 11, at 441-42.
30. This Note primarily focuses on the substantive outcomes of the NEP and deals only langentially with the issue of whether the program is procedurally fair. See infra Part II.
31. Jan Roehl, Civil Remedies for Controlling Crime: The Role of Community Organizations, 9 CRIME PREVENTION STUD. 241, 246 (1998).
32. Kellner v. Cappellini, 516 N.Y.S.2d 827, 828-29 (N.Y. Civ. Ct. 1986). The respondents in the case were the Public Administrator of the County of New York, two named residents, and ten unidentified "occupants and squatters." Id. at 827.
33. Id. at 827-28;
34. N.Y. REAL PROP. ACTS. LAW § 715 (McKinney 2005).
35. See Kellner, 516 N.Y.S.2d at 828;
36. Roehl, supra note 15, at 246.
37. Kellner, 516 N.Y.S.2d at 828-29.
38. Id.
39. The only respondent to testify at trial conceded that there was drug activity taking place in the building, though he denied personal involvement and that he would personally allow upwards of fifty people per day to enter the building to make drug transactions. Id. at 829-30.
40. Id. at 831 (emphasis added).
41. Each county in New York has its own separate and independent district attorney's office. Currently, there are active independent NEPs in New York County (Manhattan), Queens County, Kings County (Brooklyn), and Bronx County.
42. Roehl, supra note 15, at 246.
43. STEVEN L. KESSLER, NEW YORK CRIMINAL AND CIVIL FORFEITURES 265 (1999).
44. For a comprehensive history of the Bawdy House laws, see 1165 Broadway Corp. v. Dayana of N.Y. Sportswear, Inc., 166 Misc. 2d 939, 940-47 (N.Y. Civ. Ct. 1995).
45. N.Y. REAL PROP. LAW § 231(1) (McKinney 2005).
46. N.Y. REAL PROP. ACTS. LAW § 711(5) (McKinney 2005).
47. See infra text accompanying note 31.
48. N.Y. REAL PROP. ACTS. LAW § 715(1) (McKinney 2005). Section 715 also creates presumptions of illegal use where a tenant has two or more convictions for prostitution or drug distribution in a period of one year. § 715(2)-(3). According to Jan Roehl, most state nuisance abatement ordinances "designate public prosecutors as the individuals who may initiate an abatement action, although citizens may do so in at least 16 states."
49. Roehl, supra note 15, at 249
50. (citing B.E. SMITH ET AL., AM. BAR ASSOC, RIDDING NEIGHBORHOODS OF DRUG HOUSES IN THE PRIVATE SECTOR (1992)).
51. See Dayana, 166 Misc. 2d at 940-47.
52. Indeed, the District Attorney never appeared as a litigant in a Bawdy House action before 1988. Prior to 1988, the city had been represented by Corporation Counsel in all nuisance abatement suits. See, e.g., City of New York v. Goldman, 356 N.Y.S. 754, 754 (N.Y. Civ. Ct. 1974). Corporation Counsel continues to enforce nuisance abatement laws. See New York City Law Department, http://home2.nyc.gov/html/law/html/about/divisions_affirm.shtml (last visited Mar. 9, 2008).
53. See PETER FINN, U.S. DEPV OF JUSTICE, BUREAU OF JUSTICE STATISTICS, THE MANHATTAN DISTRICT ATTORNEY'S NARCOTICS EVICTION PROGRAM 3, 122 (1995); New York County District Attorney's Office, Special Litigation Bureau, available at http:// www.manhattanda.org/organization/trial/speciallitigation.shtml [hereinafter Special Litigation Bureau]. Cases can also be referred by the police or members of the community.
54. Id.
55. Special Litigation Bureau, supra note 32.
56. § 715(4); FINN, supra note 32, at 5. In practice, this almost never happens. The vast majority of landlords are willing to comply with the District Attorney's request.
57. FINN, supra note 32, at 5.
58. FINN, supra note 32, at 10. The District Attorney reports, however, that landlords rarely object to initiating evictions. Special Litigation Bureau,
59. supra note 32.
60. See James Barron, New Court Is to Handle Evictions of Drug Suspects, N.Y. TIMES, July 31, 1988, at 31. Commonly known as "redbacks," because they are filed on bright red paper, narcotics eviction suits brought at the behest of the district attorney are prioritized and litigated on an expedited timetable.
61. See Geoffrey Gray, Busted Out, CITY LIMITS MAGAZINE, Nov. 2003, at 20.
62. See City of New York v. 924 Columbus Ave. Assocs., N.Y.L.J., Oct. 19, 1994, at 22, col. 3 (N.Y. Sup. Ct. 1994) ("[S]pecific information of arrests and lab tests are made available to the owner of the property . . . so that an eviction proceeding can be started with some hope of success.");
63. FINN, supra note 32, at 6;
64. Special Litigation Bureau, supra note 32.
65. See Karah Woodward & Cassi Feldman, Breaking the Seal: DAs Dig Up Old Court Files, CITY LIMITS WEEKLY, June 7, 2004, available at http://www.citylimits.org/content/articles/ weeklyView.cfm?articlenumber=1530 (last visited Mar. 9, 2008). Under New York law, official records and papers of arrests and prosecutions that result in dispositions favorable to the defendant, non-criminal offense convictions, and youthful offender adjudications are automatically sealed.
66. See N.Y. CRIM. PRO. LAW § § 160.50, 160.55, 720.35.
67. See FINN, supra note 32;
68. Special Litigation Bureau, supra note 32.
69. See FINN, supra note 32, at 26.
70. See FINN, supra note 32;
71. N.Y. COUNTY DIST. ATTORNEY'S OFFICE, TRESPASS AFFIDAVIT AND NARCOTICS EVICTION PROGRAMS 2 (agency pamphlet) [hereinafter D.A. Pamphlet];
72. cf. Weil, supra note 7, at 169 (describing Congress's rationale for implementing a "one-strike" policy in federally funded public housing).
73. DA. Pamphlet, supra note 41, at 2.
74. FINN, supra note 32, at 5. Thirty-eight percent of respondents were evicted through judicial action, while fifty-five percent simply failed to contest the eviction in court. The remaining seven percent of cases were settled (five percent) or dismissed or withdrawn (two percent).
75. Id.
76. From 1988 to 1996, the NEP worked with the New York City Housing Authority (NYCHA) to evict drug dealers from the city's public housing. In 1971, NYCHA entered into a consent decree under which it agreed to guarantee New York's public housing residents certain procedural protections from eviction. KESSLER, supra note 25, at 361.
77. Thus, when the District Attorney attempted to coerce NYCHA into bringing eviction actions against public housing residents under the Bawdy House laws, NYCHA argued that it was prohibited from doing so by the consent decree. Id. at 361-62.
78. This situation resulted in a peculiar arrangement under which the District Attorney would be substituted as the petitioner in narcotics eviction suits and NYCHA would be named as a respondent along with the tenant. Id. at 362.
79. While NYCHA was nominally the respondent, it would cooperate with the District Attorney to collect and present evidence in support of the eviction. Id. Thus, NYCHA was able to sidestep the consent decree until 1996, when the consent decree was modified to allow NYCHA to proceed directly under the Bawdy House laws.
80. Id. at 363.
81. Press Release, N.Y. County Dist. Attorney's Office, Narcotics Eviction Program (Apr. 11, 2005), available at http://manhattanda.org/whatsnew/ press/2005-04-11.shtml (last visited Mar. 12, 2008).
82. See, e.g., Janet Allon, In Once-Infamous Drug Area, Only Mailman Is on the Stoop Now, N.Y. TIMES, July 6, 1997, at CY5.
83. The author's research revealed no studies.
84. See FINN, supra note 32, at 1;
85. see also Press Release, Shelby County District Attorney General, District Attorney's Office Notifies Thousands of Hickory Hill Residents About Drug Dealer Eviction, http://www.scdag.com/Information/NewsReleases/tabid/75/ newsid383/102/ Default.aspx (last visited Mar. 12, 2008)
86. [hereinafter Press Release, Shelby County Attorney General]
87. 535 U.S. 125 (2002).
88. See LOS ANGELES CAL. MUNICIPAL CODE § 47.50 (1997) (applies to drug activity taking place within 1000 feet of a residence); Rocky Delgadillo, Los Angeles City Attorney, Citywide Nuisance Abatement Program ("CNAP"), http://www.lacity.org/ atty/atycblb2c htm#NET (last visited Mar. 12, 2008).
89. See CATHERINE COLES & MARK H. MOORE, PROSECUTION IN THE COMMUNITY: A STUDY OF EMERGENT STRATEGIES, Appendix C: Marion County (Indianapolis), Indiana Case Study, at 19 (1997).
90. See Press Release, Shelby County Attorney General, supra note 48.
91. See Cook County State's Attorney's Office, About the Cook County State's Attorney's Office, http://www.statesattorney.org/about_the_office.htm (last visited Mar. 12, 2008).
92. James Q. Wilson & George L. Kelling, Broken Windows: The Police and Neighborhood Safety, THE ATLANTIC MONTHLY 29 (March 1982).
93. Id. Numerous scholars have commented on Wilson and Kelling's work. One wonderful example is BERNARD E. HARCOURT, ILLUSION OF ORDER: THE FALSE PROMISE OF BROKEN WINDOWS POLICING 23-27 (2001).
94. Wilson & Kelling, supra note 54, at 29.
95. See HARCOURT, supra note 55, at 1, 47-51.
96. See HENRY RUTH & KEVIN R. REITZ, THE CHALLENGE OF CRIME: RETHINKING OUR RESPONSE 137-44 (2003).
97. Id.
98. See WESLEY SKOGAN & SUSAN HARTNETT, COMMUNITY POLICING, CHICAGO STYLE 175 (1999). Kellner v. Cappellini, 516 N.Y.S.2d 827 (N.Y. Civ. Ct. 1986) is a prime example of this type of effort.
99. See supra text accompanying note 15.
100. There has also been a recent shift in focus from traditional law enforcement to land management responses to crime. Nicole Stelle Garnett argues that the Warren Court's criminal procedure revolution limited police ability to create social order and made land management solutions that do not present the same procedural and constitutional limitations - such as new "skid rows," stricter housing codes, trespass zoning, and homeless campuses - more appealing to policymakers. See Nicole Stelle Garnett, Relocating Disorder, 91 VA. L. REV. 1075 (2005).
101. See, e.g., D.A. Pamphlet, supra note 41.
102. See Mary M. Cheh, Constitutional Limits on Using Civil Remedies to Achieve Criminal Law Objectives: Understanding and Transcending the Criminal-Civil Law Distinction, 42 HASTINGS L.J. 1325, 1325-28 (1991).
103. See Henry H. Rossbacher, Let the Punishment Fit the Crime: Aspects of Civil Lawsuits Against Criminal Defendants, 21 THE COMPANY LAWYER 27 (2000).
104. Cheh, supra note 63, at 1326-28.
105. Id.;
106. see also Rossbacher, supra note 64, at 27.
107. Cheh, supra note 63, at 1329.
108. See FINN, supra note 32, at 2.
109. Id.
110. Eviction is essentially forfeiture for the poor, as most low-income renters have few assets and are therefore insolvent for purposes of traditional forfeiture actions.
111. See Cheh, supra note 63, at 1333-34. Cheh notes that civil remedies may be incorporated into criminal proceedings themselves (e.g., restitution) or may serve as an alternative or supplement to criminal sanctions.
112. Id.
113. Unlike criminal law, "[t]he civil law is rich in remedies." Id. at 1333.
114. Lloyd Realty Corp. v. Albino, 552 N.Y.S.2d 1008, 1009 (N.Y. Civ. Ct. 1990).
115. Cf. Alicia Werning Truman, Unexpected Evictions: Why Drug Offenders Should Be Warned Others Could Lose Public Housing if They Plead Guilty, 89 IOWA L. REV. 1753, 1757-58 (2003-2004) (discussing the loss of public housing for drug convictions). Of course, entire families are almost always affected when a person is accused of a crime but the law rarely formally involves other family members as it does with the NEP.
116. See Regina Austin, "Step on a Crack, Break Your Mother's Back": Poor Moms, Myths of Authority, and Drug-Related Evictions from Public Housing, 14 YALE J.L. & FEMINISM 273 (2002).
117. FINN, supra note 32, at 6 ("If, as is usually the case, the tenant of record is not the accused drag dealer, the landlord or district attorney must also prove that the tenant knew about the illegal activity and did not try to stop it.").
118. See Austin, supra note 75, at 276;
119. see also Lithwick, supra note 6;
120. Renai S. Rodney, Am I My Mother's Keeper? The Case Against the Use of Juvenile Arrest Records in One-Strike Public Housing Evictions, 98 NW. U.L. REV. 739, 746, 766 (2004). As Jan Roehl notes: "Community organizations and citizens have learned to apply civil remedies, to use civil laws and mechanisms to compel non-offending third parties to take action to prevent or mitigate crime."
121. Roehl, supra note 15, at 242.
122. Daryl J. Levinson, Collective Sanctions, 56 STAN. L. REV. 345, 347-48 (2003).
123. Id.
124. Joel Feinberg, Collective Responsibility, 65 J. PHIL. 674, 676 (1968).
125. Cf. JOSEPH WILLIAM SINGER, PROPERTY LAW: RULES, POLICIES, AND PRACTICES 307 (2002) ("Nuisance must also be distinguished from negligence. . . . Nuisance focuses on the result of the conduct rather than the conduct itself; the question is not whether the defendant's conduct was unreasonable but whether the interference is unreasonable.").
126. One possible reason eviction is the sole remedy employed by the Bawdy House regime is that regular injunctions are thought to be ineffective, and most respondents in narcotics eviction cases will be judgment-proof in forfeiture and damage actions.
127. Rodney, supra note 77, at 765
128. (quoting James Herbie Difonzo, Parental Responsibility for Juvenile Crime, 80 OR. L. REV. 1, 7 (2001));
129. see also Austin, supra note 75, at 276 ("The person being controlled here, of course, is not the child, but the parent. The parent becomes the guarantor of the good behavior of her family members and guests. The policy depends on her economic rationality as head of the household and provides incentives for her to kick the offending family member out of the unit").
130. NEW YORK BAR ASSOCIATION, "Re-Entry and Reintegration: The Road to Public Safety": Report and Recommendations of Special Committee on Collateral Consequences of Criminal Proceedings, 215-20 (May 2006) (adopted as official NYSBA policy Nov. 2006), available at http://www.reentry.net/link.cfm79285 (last visited Mar. 12, 2008) [hereinafter "Re-Entry and Reintegration"].
131. Levinson, supra note 78, at 378-86.
132. Id. at 426. Professor Levinson notes that the Israeli Supreme Court has taken an opposing view in condemning a policy of deporting the family members of suicide bombers. The Supreme Court concluded: "From our Jewish Heritage . . . we have learned that 'Fathers shall not be put to death because of their sons, and sons shall not be put to death because of their fathers; a person shall be put to death for his own wrongdoing.' "
133. Id. at 413-14
134. (quoting H.C.J. 7015/02 Ajuri v. IDF Commander in West Bank [2002] (quoting Deuteronomy 24:16)).
135. 871895 Grand Concourse Assoes, v. Ramos, 685 N.Y.S.2d 580, 582 (N.Y. Civ. Ct. 1998).
136. Regina Austin has questioned whether poor single mothers generally are in fact in a position to exert meaningful control over their grown children. Austin argues that due to a lack of political, social, and economic power, "the authority of poor mothers may not be sufficiently underwritten with material capital to achieve compliance with their requests regarding drug-related behavior." Austin, supra note 75, at 287.
137. Levinson, supra note 78, at 426.
138. See infra Part III(c).
139. See FINN, supra note 32, at 6;
140. see also Cheh, supra note 63, at 1345 ("In general, civil remedies are easier to use, more efficient, and less costly than criminal prosecutions.").
141. See supra note 36.
142. Respondents are permitted very little discovery. See FINN, supra note 32, at 6.
143. Id.
144. Id. at 5. All of the data in this section pertains solely to the Manhattan NEP.
145. Id. at 6.
146. Id.
147. Id. at 7.
148. This is the explanation most favorable to the underlying aims of the NEP.
149. See Paris R. Baldacci, Assuring Access to Justice: The Role of the Judge in Assisting Pro Se Litigants in Litigating Their Cases in New York City's Housing Court, 3 CARDOZO PUB. L. POL'Y & ETHICS J. 659, 661-63 (2006).
150. In my experience at the Housing Clinic at Harvard Law School I saw many people facing eviction agree to vacate their apartments even though they had strong arguments for possession simply to avoid the stress of court.
151. See People v. Drain, 73 N.Y.2d 107, 110 (N.Y. 1989) ("[T]he application and scope of the exclusionary rule is ascertained by balancing the foreseeable deterrent effect against the adverse impact of suppression on the truth-finding process.").
152. See Marine Midland Bank v. John E. Russo Produce Co., 50 N.Y.2d 31, 434-44 (N.Y. 1980).
153. NYCHA v. Harvell, 731 N.Y.S.2d 919, 920-21 (N.Y. Sup. Ct. 2001) ("[A] termination notice is not generally required to maintain an illegal use proceeding, since such a proceeding is founded upon statutory authority and not the termination of a lease").
154. See FINN, supra note 32, at 6.
155. See Laura Abel, Make 'You Have a Right to a Iawyer' a Reality in Housing Court, TENANT INQUILINO, Mar. 2005, at 3-4, available at http://www.brennancenter.org/content/resource/ make_you_have_the_right_to_a_lawyer_a_reality_in_housing_court/ (last visited Mar. 12, 2008).
156. See FINN, supra note 32, at 6.
157. 45 C.F.R. § 1633.3 (2003). The prohibition does not apply when a charge has been dismissed or the person has been acquitted of the illegal drug activity. 45 C.F.R. § 1633.2 (2003).
158. Barbara Mule & Michael Yavinsky, Saving One's Home: Collateral Consequences for Innocent Family Members, 30 N.Y.U. REV. L. & SOC. CHANGE 689-90 (2006). A study of the Bronx Housing Court in 2007 revealed that the Bronx NEP actually appeared for the landlord in most cases, sitting at counsel table, and even conducting trials. McGregor Smyth, "Bronx Narcotics Eviction Proceedings Report," (Bronx Defenders 2007) (on file with author).
159. See Perdomo v. Morgenthau, 2007 WL 4554371, at *2 slip op. 27535 (N.Y. Sup. Ct. Nov. 7, 2007) ("Arresting and prosecuting drug traffickers in these apartment buildings often fail to solve the problem because the crime cannot be proved beyond a reasonable doubt."). In Perdomo, the court held that the Manhattan NEP did not have the authority to mandate its approval of a settlement agreement between a landlord and a tenant. In this case, the tenant's attorney was forced to file a declaratory judgment action to prevent the NEP from blocking an agreement with the landlord. Id.
160. 1895 Grand Concourse Assoes, v. Ramos, 685 N.Y.S.2d 580, 582 (N.Y. Civ. Ct. 1998). Of course, this is the standard of proof in the vast majority of civil cases, with a few notable exceptions.
161. See id. at 582;
162. FINN, supra note 32, at 2.
163. See FINN, supra note 32, at 3 ("Even if the police do not recover any drugs, the program may still bring civil action if there is other convincing evidence that the premises are being used in connection with a narcotics operation. Such evidence may include materials for processing and packaging drugs or records of drug transactions.").
164. RRW Realty Corp. v. Flores, 686 N.Y.S.2d 278, 281 (N.Y. Civ. Ct. 1999). The Bawdy House laws also create a presumption of illegal use when a tenant has two drug convictions in a one year period. See supra note 29.
165. Lituchy v. Lathers, 232 N.Y.S.2d 627, 627 (N.Y. Sup. Ct. 1962).
166. Ramos, 685 N.Y.S.2d at 582-83.
167. Flores, 686 N.Y.S.2d at 281.
168. See ARJS Realty Corp. v. Perez, No. 51220(U), 2003 WL 22015784, at *2 (N.Y. Civ. Ct. Aug. 14, 2003) (inferring use from presence of drags on premises); City of New York v. Rodriguez, 531 N.Y.S.2d 192 (N.Y. Civ. Ct. 1988) (finding nexus where drug activity took place in front of multi-family building).
169. Ramos, 685 N.Y.S.2d at 511 (citing Lloyd Realty Corp. v. Albino, 552 N.Y.S.2d 1008, 1010 (N.Y. Civ. Ct. 1990)).
170. See Austin, supra note 75.
171. Eviction is not a "punishment" in the legal sense. City of New York v. Wright, 618 N.Y.S.2d 938, 939 (N.Y. Sup. Ct. 1994). In Wright, despite a scathing dissent, the court upheld the Bawdy House laws against a constitutional attack, finding that "[t]he eviction in the case at bar is purely remedial in nature and not designed for retributive or deterrent purposes" and thus did not violate the Constitution's prohibition against double jeopardy.
172. Id.;
173. see also Hudson v. United States, 522 U.S. 93, 100 (1997) (holding that if the measure was not intended by the legislature to be criminal, courts must then determine "whether the statutory scheme was so punitive cither in purpose or effect . . . as to transform what was clearly intended as a civil remedy into a criminal penalty"). Such legal distinctions, however, likely mean very little to a mother who loses her apartment due to the actions of her son. In such a case, eviction feels clearly punitive. That the power to evict rests in the office of the city's criminal prosecutor makes it seem all the more punitive.
174. Levinson, supra note 78, at 378-86.
175. See Perez, 2003 WL 22015784, at *2.
176. City of New York v. Goldman, 356 N.Y.S.2d 754, 758 (N.Y. Civ. Ct. 1974).
177. Perez, 2003 WL 22015784, at *2-3.
178. Id. at *1.
179. Id.
180. Id.
181. Id.
182. Perez, 2003 WL 22015784, at *2.
183. Id.
184. Id. The Court found, in the alternative, that Ms. Perez had in fact acquiesced in the drug dealing, but gave little factual support for the finding.
185. Id. at *4. While it is beyond the scope of this Note to fully examine the Court's method of statutory interpretation, it is worth noting that Judge Bedford set aside a long-standing interpretation of a state statute that had been on the books since the 1800s in light of the Supreme Court's interpretation of a more recent, and arguably unrelated, statute.
186. Id. at *3.
187. Compare Perez, 2003 WL 22015784, at *3 (finding that tenant of record had acquiesced where police found a gun, drugs, drug paraphernalia under her son's bed), with Lloyd Realty Corp. v. Albino, 552 N.Y.S.2d 1008, 1009-10 (N.Y. Civ. Ct. 1990) (finding that the tenant of record, who was sleeping in her bedroom when police entered the apartment and found drugs and drug paraphernalia around the house and a gun in the oven, did not acquiesce in drug activity).
188. See, e.g., Normandy Realty Inc. v. Boyer, 773 N.Y.S.2d 186, 188 (N.Y. Civ. Ct. 2003) (noting respondent's age and illness); 1895 Grand Concourse Assoes, v. Ramos, 685 N.Y.S.2d 580, 582 (N.Y. Civ. Ct. 1998) (finding against eviction of mother of seven despite police finding multiple bags of drugs on multiple occasions);
189. Albino, 552 N.Y.S.2d at 1009 (not requiring eviction of 68-year-old single mother of eight despite police finding drugs on kitchen table and a gun in the oven while respondent was in the apartment).
190. See generally Douglas Kim, Asset Forfeiture: Giving Up Your Constitutional Rights, 19 CAMPBELL L. REV. 527 (1997);
191. Jay A. Rosenberg, Constitutional Rights and Civil Forfeiture Actions, 88 COLUM. L. REV. 390 (1988);
192. Rossbacher, supra note 64;
193. Note, Using Equitable Powers to Coordinate Parallel Civil and Criminal Actions, 98 HARV. L. REV. 1023 (1985).
194. See Note, supra note 136, at 1026 ("The most serious friction caused by parallel proceedings -affecting both the accused and other civil litigants -arises from the fifth amendment privilege against self-incrimination.").
195. Id.
196. See 54 West 16th Street Apartment Corp. v. Dawson, 684 N.Y.S.2d 400, 405 (N.Y. Civ. Ct. 1998). In Dawson, the court held that Dawson was not entitled to a stay of his holdover eviction proceeding, even though he would potentially be forced to choose between preserving his Fifth Amendment right against self-incrimination and losing the proceeding.
197. Id. Federal courts similarly have been unsympathetic to criminal defendants' requests for stays in parallel civil proceedings. See Baxter v. Palmigiano, 425 U.S. 308, 319-20 (1976).
198. 685 N.Y.S.2d 580 (N.Y. Civ. Ct. 1998).
199. Id. at 581.
200. Id. at 582.
201. Id.
202. Id.
203. Id. at 582-83.
204. Ramos, 685 N.Y.S.2d at 583.
205. Special Litigation Bureau, supra note 32;
206. see also FINN, supra note 32, at 2.
207. FINN, supra note 32, at 5.
208. Id.
209. Id. Five percent of cases were settled.
210. Id.
211. See, e.g., Donna Cokwer, Forward: Addressing the Real World of Racial Injustice in the Criminal Justice System, 93 J. CRIM. L. & CRIMINOLOGY 827 (2003) (addressing racial disparities in the criminal justice system in light of prosecutorial discretion);
212. Angela J. Davis, Prosecution and Race: The Power and Privilege of Discretion, 67 FORDHAM L. REV. 13 (1998) (same).
213. William J. Stuntz, Plea Bargaining and Criminal Law's Disappearing Shadow, 117 HARV. L. REV. 2548, 2548 (2004).
214. Professor Stuntz argues that the expansive scope of the "menu" available to prosecutors - broad and overlapping substantive criminal prohibitions, sentence-enhancing statutes, and the like - is largely the product of political, legal, and social structures that make creating new criminal prohibitions and increasing punishment politically attractive for legislators. See William J. Stuntz, The Political Constitution of Criminal Justice, 119 HARV. L. REV. 780 (2006) [hereinafter The Political Constitution].
215. Cheh, supra note 63, at 1347 (noting that some civil remedies "permit the government to enlist and even conscript citizens to prosecute, sue, and shun criminals").
216. Id. at 1328.
217. See infra Part III.
218. This problem is exacerbated by the fact that relatively few narcotics eviction cases are actually contested with the assistance of counsel. Without consistent adversaria] testing, it is no wonder that the theoretically strict legal standards of the Bawdy House laws have eroded so significantly.
219. For a similar discussion of the costs and benefits of drug policy and the crack epidemic, see RANDALL KENNEDY, RACE CRIME, AND THE LAW 373-76 (1997).
220. Kellner v. Cappellini, 516 N.Y.S.2d 827, 831 (N.Y. Civ. Ct. 1986).
221. Id.
222. See, e.g., United States v. Robinson, 721 F. Supp. 1541, 1544 (D.R.I. 1989) ("An order of forfeiture [of respondent's federally subsidized lease] would be, in effect, a sentence of homelessness for the defendant and her three young children.");
223. see also United States v. Leasehold Interest in 121 Nostrand Ave., Apt. 1-C, Brooklyn, N.Y., 760 F. Supp. 1015, 1029 (E.D.N.Y. 1991); infra note 169.
224. See Gray, supra note 36.
225. See DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS 174-76 (1993);
226. WILLIAM JULIUS WILSON, THE TRULY DISADVANTAGED: THE INNER CITY, THE UNDERCLASS, AND PUBLIC POLICY 1-108 (1987).
227. Steven D. Levitt & Sudhir Alladi Venkatesh, An Economic Analysis of a Drug-Selling Gang's Finances 17 (Nat'l Bureau of Econ. Research, Working Paper No. 6592, 1998).
228. Id.
229. Id. at 7.
230. One study of public housing in Chicago found that up to twenty-five percent of all "one-strike" evictions stemmed from juvenile arrests. Rodney, supra note 77, at 755.
231. See generally Phyllis Goldfarb, Counting the Drug War's Female Casualties, 6 J. GENDER RACE & JUST. 277 (2002).
232. See, e.g., supra note 135. Indeed, virtually all cases reviewed for this paper involved female-headed households.
233. Austin, supra note 75, at 275-76.
234. In Perez, for example, the court wrote: "In allowing Respondent to be evicted, the Court is not condemning Respondent 'for the sins' of her son, the Court is merely enforcing the legislative intent as expressed in RPL § 231 of placing responsibility for illegal activity on a tenant who has the right to exert authority over the Premises which she leases and where she resides." ARJS Realty Corp. v. Perez, 2003 WL 22015784, at *3 (2003). The Court, however, went on to say: "Respondent testified that she knew that her son had prior arrests and had been incarcerated. This acknowledgment creates more, not less, reason to have acquainted herself with her son's activities." Id.
235. Re-Entry and Reintegration, supra note 84, at 225.
236. See supra note 121.
237. N.Y. COUNTY LAWYERS' ASS'N, THE NEW YORK CITY HOUSING COURT IN THE 21ST CENTURY: CAN IT BETTER ADDRESS THE PROBLEMS BEFORE IT? 24 (2005) (estimating that preventing ten percent of the 25,000 total evictions each year would save the city government roughly seventy-five million dollars in direct shelter costs).
238. Coalition for the Homeless, Homelessness in New York City: The Basic Facts (Sept. 2006), http://www.coalitionforthehomeless.org/advocacy/basic_facts. html (then follow "Charts Detailing the Homeless Shelter Population in New York City" hyperlink) (last visited Mar. 9, 2008). This represents a fifty-six percent increase from 1998. Id.
239. Cf. Jonathan L. Hafetz, Homeless Legal Advocacy: New Challenges and Directions for the Future, 30 FORDHAM URB. L.J. 1215, 1221 (2003)
240. (citing Nina Bernstein, Use of Shelters Sets Record in New York, N.Y. TIMES, Aug. 1, 2001, at A1;
241. Jennifer Egan, To Be Young and Homeless, N.Y. TIMES, Mar. 24, 2002, at G32) ("[F]amilies with children represent one of the fastest
242. 553 N.Y.S.2d 973 (N.Y. Civ. Ct. 1990).
243. Id. at 974-75.
244. Id.
245. See Corinne A. Carey, No Second Chance: People with Criminal Records Denied Access to Public Housing, 36 U. TOL. L. REV. 545, 565 (2005) (discussing how homelessness and transient living "disrupts a child's education, emotional development, and sense of well-being");
246. see also Hafetz, supra note 174, at 1257 ("Most homeless children do not attend school regularly, are forced to shuttle between different schools in a given academic year, attain lower education achievement standards, and have more emotional and behavior problems than other school children.").
247. See Martin v. Gross, 524 N.Y.S.2d 121, 125 (N.Y. Sup. Ct. 1987).
248. See Hafetz, supra note 174, at 1257.
249. See Carey, supra note 178, at 566.
250. See also FIGHT CRIME: INVEST IN KIDS Ohio, Abandoning Ohio's Most Vulnerable Kids: Impact on Crime of Proposed Federal Withdrawal of Foster Care Funding Pledge (2005), http://www.fightcrime.org/reports/ohfostercare.pdf (last visited Mar. 12, 2008).
251. The arguments here are an expansion of the project started by Professor Tracey Meares. Meares, supra note 11 (examining tough drug sentencing in light of social organization theory).
252. CLIFFORD R. SHAW & HENRY D. MCKAY, JUVENILE DELINQUENCY AND URBAN AREAS 321 (1942).
253. See also Clear et al., supra note 11, at 34;
254. Meares, supra note 11, at 191-92.
255. SHAW & MCKAY, supra note 183, at 320.
256. Meares et al., supra note 13, at 1189-90.
257. See DAVID HALPERN, SOCIAL CAPITAL 124 (2005).
258. See Clear et al., supra note 11, at 34.
259. The measure of concentrated disadvantage combines percentage of families receiving public assistance, percentage of individuals who are unemployed, percentage of female-headed households with children, and percentage of residents who are black. Id. at 43-44.
260. ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF AMERICAN COMMUNITY (2000)
261. [hereinafter BOWLING ALONE].
262. See also ROBERT D. PUTNAM, MAKING DEMOCRACY WORK: CIVIC TRADITIONS IN MODERN ITALY (1994).
263. Sheila R. Foster, The City as an Ecological Space: Social Capital and Urban Land Use, 82 NOTRE DAME L. REV. 527, 529
264. (citing HALPERN, supra note 186, at 1-19).
265. Robert Putnam compares social capital to civic virtue. See BOWLING ALONE, supra note 189, at 19.
266. See BOWLING ALONE, supra note 189, at 308.
267. Robert J. Sampson et al., Neighborhoods and Violent Crime: A Multilevel Study of Collective Efficacy, 277 Sci. 918, 918 (1997).
268. See HALPERN, supra note 186, at 115;
269. Robert J. Sampson & John H. Laub. Structural Variations in Juvenile Court Processing: inequality, the Underclass, and Social Control, 27 L. & SOC'Y REV. 285, 285-312 (1993).
270. These social ties are "a carrot, not just a stick," in that they discourage criminal behavior and also give people a reason to adhere to societal norms. HALPERN, supra note 186, at 115.
271. Id.
272. Id. at 117.
273. Sampson et al., supra note 192, at 919 ("At the neighborhood level, however, the willingness of local residents to intervene for the common good depends in large part on conditions of mutual trust and solidarity among neighbors.").
274. See Clear et al., supra note 11, at 35.
275. Id. (citing P.E. Bellair, Social Interaction and Community Crime: Examining the Importance of Neighborhood Networks, 35 CRIMINOLOGY 677, 677-704 (1997) (finding thai "getting together with neighbors" had a negative impact on burglary, auto theft, and robbery)).
276. Sampson et al., supra note 192, at 918-19.
277. Id. Collective efficacy was measured by asking community residents various questions about (1) the likelihood that their neighbors could be counted on to intervene in various situations - e.g., children skipping school and hanging out on the street comer - and (2) social cohesion - e.g., whether neighbors generally get along with one another.
278. Id. at 919-20.
279. Sampson et al. found that collective efficacy was the largest predictor of violent crime, even controlling for friendship and kinship ties, organizational participation, and neighborhood services, id. at 921-23.
280. See also HALPERN, supra note 186, at 125.
281. Sampson et al., supra note 192, at 923.
282. Thus, a neighborhood's collective efficacy is closely related to the human capital possessed by individual neighborhood residents. One of the most important implications of this research is that, contrary to the tenets of Broken Windows/order maintenance theory, which posit that neighborhood disorder causes more serious crime, community disorder and crime likely have a common root. Robert J. Sampson & Stephen Raudenbush, Systematic Social Observation of Public Spaces: A New Look at Disorder in Urban Neighborhoods, 105 AM. J. SOC. 603, 637-39 (1999).
283. See HALPERN, supra note 186, at 125.
284. Clear, supra note 13, at 190
285. (citing WESLEY SKOGAN, DISORDER AND DECLINE (1990)).
286. Clear et al., supra note 11, at 38-39
287. (citing GEORGE L. KELLING & CATHERINE COLES, FIXING BROKEN WINDOWS: RESTORING ORDER AND REDUCING CRIME IN OUR COMMUNITIES (1997)).
288. For a powerful critique of Broken Windows theory and the orderly/disorderly distinction, see HARCOURT, supra note 55.
289. See Escalera v. N.Y. Housing Authority, 924 F. Supp. 1323, 1331 (S.D.N.Y. 1996) ("Achieving speedy evictions of drug-traffickers . . . is an effective means of disrupting the drug market and thereby attacking the problems associated with drug dealing and use."). Though there is scant empirical evidence that programs like the NEP actually decrease overall levels of drug-related activity, assertions such as this one are commonplace in narcotics eviction cases.
290. FINN, supra note 32, at 6 (quoting Judge Eileen Bransten).
291. See Valerie D. White, Modifying the Escalera Consent Decree: A Case Study on the Application of the Rufo Test, 23 FORDHAM URB. L.J. 377, 402-3 (1996).
292. Sampson & Raudenbush, supra note 203, at 611.
293. See also Meares, supra note 11, at 198-99.
294. Here, I bracket the issue of whether a family can ever truly be "removed" from a community. As the above discussion on homelessness demonstrates, evicted families do not simply vanish into thin air. See supra Part II.
295. See supra Part II for a discussion of the creation of incentives for the heads of households to exert greater control over other residents.
296. Clear, supra note 13, at 181.
297. The cancer analogy in Kellner is a prime example of the "addition by subtraction" rhetoric. See supra text accompanying note 22.
298. See Rose & Clear, supra note 11, at 441-43;
299. see also James P. Lynch & William Sabol, Effects of Incarceration on Social Control in Communities, in IMPRISONING AMERICA: THE SOCIAL EFFECTS OF MASS INCARCERATION (Mary Pattillo et al. eds.) (2004).
300. Id.
301. See WILSON, supra note 162, at 58;
302. Clear et al., supra note 11, at 36.
303. Clear, et al., supra note 11, at 36
304. (citing Robert J. Sampson, Linking the Micro- and Macro-Level Dimensions of Community Social Organization, 70 SOC. FORCES 43, 43-64 (1991)).
305. Id.
306. (citing R.D. Crutchfield, M.R. Geerken & W.R. Gove, Crime Rate and Social Integration: The Impact of Metropolitan Mobility, 20 CRIMINOLOGY 467, 467-78 (1982)).
307. Id.
308. (citing B.D. Warner & G.L. Pierce, Reexamining Social Disorganization Theory Using Calls to the Police as a Measure of Crime, 31 CRIMINOLOGY 837, 837-864 (1993)).
309. See Sampson et al., supra note 192, at 923 ("Together, three dimensions of neighborhood stratification - concentrated disadvantage, immigration concentration, and residential stability - explained 70% of the neighborhood variation in collective efficacy.").
310. Clear et al., supra note 11, at 36.
311. See generally MASSEY & DENTON, supra note 162;
312. WILSON, supra note 162.
313. Clear et al., supra note 11, at 37.
314. Clear et al. argue that incarceration only recently became a significant source of residential mobility as a result of the 500% increase in rates of incarceration since the 1970s. Id.
315. Id.
316. Rose & Clear, supra note 11, at 441-42.
317. Formal state social control (traditional law enforcement) has been seen as existing separate and apart from the neighborhood/community context. Id. State intervention is generally seen as a "responses to crime" rather than an ecological factor in its own right.
318. Clear et al., supra note 11, at 35;
319. see also Meares, supra note 11, at 191-92;
320. Meares et al., supra note 13, at 1186-93.
321. Clear, supra note 13, at 181.
322. This belief is premised on the mistaken idea that people removed from the community through incarceration on the whole make negative net contributions to the community. Id.
323. Clear et al., supra note 11, at 39 (recognizing the "dual impact" of incarceration).
324. Rose & Clear, supra note 11, at 467-71.
325. Id.
326. Clear et al., supra note 11, at 36. Clear et al. used two measures of incarceration-
327. admission rates and release rates - and controlled for traditional variables of social disorganization. Id. at 42-44.
328. Id. at 55 (noting that data is insufficient to provide a complete test of the model).
329. Id. Clear et al. also found the release of large numbers of ex-offenders into a community tends to lead to an increase in crime.
330. Id. at 55-56.
331. But see James P. Lynch & William J. Sabol, Assessing the Effects of Mass Incarceration on Informal Social Control in Communities, 3 CRIMINOLOGY & PUB. POL'Y 267, 276 (2004) (noting that empirical evidence is unclear and inconclusive, but that incarceration likely has both positive and negative effects on social control mechanisms).
332. Clear et al., supra note 11, at 38. State control over the spatial distribution of "criminals" puts tremendous strains on the personal ties - family and community relationships -that actually make rehabilitation and reintegration possible. The state's control over space not only leads to problems such as homelessness, but it also weakens individuals' family and community bonds.
333. See Governing Through Crime 1997, supra note 1, at 173.
334. Id. Professor Simon writes, "We govern through crime to the extent to which crime and punishment become the occasions and the institutional contexts in which we undertake to guide the conduct of others (or even of ourselves)."
335. Id. at 174.
336. See also GOVERNING THROUGH CRIME 2007, supra note 1.
337. PETER FINN & MARIA O'BRIEN HYLTON, USING CIVIL REMEDIES FOR CRIMINAL BEHAVIOR: RATIONALE, CASE STUDIES, AND CONSTITUTIONAL ISSUES 2 (1994).
338. See Geraghty, supra note 3 (discussing Georgia's sex offender laws).
339. See Meares, supra note 11, at 192.
340. Id. at 193.
341. See generally MASSEY & DENTON, supra note 162;
342. WILSON, supra note 162.
343. Clear et al., supra note 11, at 37.
344. Id. at 38.
345. Duncan Kennedy, Legal Economics of U.S. Low Income Housing Markets in Light of Informality Analysis, 4 J. L. SOC'Y. 71, 87-91 (2002-2003).
346. The Political Constitution, supra note 152, at 786-91.
347. Cf. Suk, supra note 3, 42-64 (discussing use of "stay away" orders in domestic violence cases as regulation of family arrangements).
348. It is an open question whether any governmental agency, especially institutions like the District Attorney's Office that are defined at least in part by their independence from the political process, should be vested with both criminal and civil law enforcement powers. While it is beyond the scope of this Note to fully consider the larger issue, it seems likely that such a concentration of power in the case of the NEP may actually serve as an impediment to a comprehensive approach to the problems it purports to address.
349. This is especially true because the District Attorney is elected and is not accountable for other areas of the city's budget. Moreover, most district attorneys in New York City are elected in off-year elections, belying any claims to a mandate. See Jonathan P. Hicks, Staten Island District Attorney is Re-elected in One of City's Few Contested Races, N.Y. TIMES, NOV. 7, 2007, at B4.
350. See supra note 31.
351. As has been discussed elsewhere in this Note, the NEP has been unable to provide anything more than anecdotal evidence of the program's contribution to overall public safety.