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25 July 21
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Police are running roughshod over a half-century-old law preventing access to the sealed arrest records of 3.5 million people.
he New York Police Department has been training its officers to break a long-standing law that bars police from snooping in the sealed arrest records of millions of innocent people, according to court papers filed in a lawsuit last week.
The news comes in a class-action lawsuit concerning the police department’s practice of flouting a state law designed to protect people from discrimination, harassment, and further legal consequences over old arrests that didn’t result in a conviction. The Bronx Defenders, a public defense organization, brought the legal action against New York City and the NYPD.
Defense lawyers in New York say they regularly find NYPD printouts of their clients’ old sealed arrests in prosecutors’ paperwork, and police sources often leak the sealed arrest histories of people killed by police and political enemies to the media. The leak of Eric Garner’s sealed arrest history after he was killed by police in 2014, for example, is now the subject of a judicial inquiry.
The flouting of the records law results in the perpetuation of a racist regime of harassment in which bad arrests lead to more bad arrests, a “garbage-in, garbage-out” cycle, said Niji Jain, a lawyer with the Bronx Defenders’ impact litigation practice and one of the attorneys on the case.
“In poor communities of color, people are overpoliced, and bad arrests happen for low-level things that ultimately aren’t proven or that DAs don’t want to prosecute,” Jain said. “If someone has arrests like that, and the NYPD is continuing to target, surveil, and harass that person on the basis of all of those bad arrests from before, that’s not helping any sort of public interest. It’s just re-victimizing that person.”
Despite the law, the NYPD still uses sealed arrests to conduct investigations and make cases, the lawyers say, and even uses photographs from sealed arrests in virtual line-ups to identify suspects. In a motion filed last week, the public defense lawyers included redacted quotes from a training document they said shows that the police department goes so far as to teach its own officers to access sealed arrest records. The NYPD and the city have mounted a legal fight to keep most of the document secret, away from the public eye.
The stakes have only grown since the privacy law was passed nearly 50 years ago. As arrest records have become digitized and the NYPD’s use of dozens of interconnecting databases puts records at every officer’s fingertips through a few clicks on a smartphone app, the potential for abuse has grown exponentially. The NYPD has conceded that officers have access through at least 14 databases to some 6 million sealed arrests, affecting at least 3.5 million people.
In 1976, when the law passed, it was hailed by state lawmakers from across the political spectrum as a necessary and overdue measure to uphold the presumption of innocence. “No individual should suffer adverse consequences merely on the basis of an accusation, unless the charges were ultimately sustained in a court of law,” then-Gov. Hugh Carey wrote when he signed the law.
The law still allows law enforcement agencies to access sealed arrest records if they can persuade a court that doing so is necessary. It also requires the police to destroy or give back identifying information like photographs and fingerprints associated with sealed arrests.
The NYPD clearly understood the implications of the law when it was being considered, and the department was one of the few voices arguing against it. “The provision that the records would be made available to a law enforcement agency upon motion, is impractical and unwise,” an NYPD official wrote in opposition to the law. “Speedy investigations produce the best results, and requiring police officers to get orders to look at records may hinder the investigations.”
When the law was enacted anyway, and subsequently expanded, the NYPD’s response was to consistently defy it, lawyers in the class action contend. An NYPD spokesperson declined to answer questions or provide any information to The Intercept about its training and practices with regard to sealed arrests.
In court, lawyers from the New York City Law Department, which represents the city and the NYPD, don’t deny that they’re accessing the records the law says should be sealed. Instead, they’ve argued that the law actually allows police to access sealed records without a court order. Judge Alexander Tisch rejected those arguments outright in a 2019 ruling, finding that NYPD is, in fact, bound by the law and that if the department “were seeking sealed information for an investigation, it would have to make an application to the court.”
Even after the judge ruled that the NYPD is indeed bound by the law, the NYPD continues to break it, accessing sealed arrest records without court order, public defenders say.
In an effort to put an end to this, lawyers for the class filed a motion last week asking for a preliminary injunction to require the department to comply with the law, instructing officers that they are not allowed to access sealed arrest records without a court order and, significantly, directing the department to stop making sealed arrest data easily available to officers through the network of police databases.
The motion also made public the existence of sealed evidence that city lawyers and the NYPD are attempting to keep secret from the public.
As part of discovery in the case, lawyers for the class had asked the NYPD for any materials the department uses to train officers on the subject. City lawyers initially refused to turn over training materials, arguing that the training actually amounted to privileged legal communications between officers and their lawyers. The judge on the case found that claim meritless and compelled the NYPD to turn over the training as part of discovery in the lawsuit. City lawyers, however, would only do so under seal, which means that although lawyers for the class are now able to see the training materials, neither their clients nor the public at large are able to.
The class lawyers’ motion filed last week, while redacting from the public quotations of the training, makes clear that the trainings contain “misstatements of black letter law,” telling officers that they are allowed to access sealed arrests without a court order, in violation of the law.
“We’re not allowed at this point to tell you what’s in the trainings, but I can tell you that the trainings give directions that are contrary to the law,” Jain, the Bronx Defenders lawyer, told The Intercept. “We also know that the NYPD gives officers access to millions of field arrest records that they are not supposed to have access to. That systemic violation of rights affects a huge class of over 3.5 million people. And right now, none of those class members are able to see that training document that is telling officers how to how to access records that are private records. People have a right to that transparency.”
Sen. Susan Collins (R-ME) meets with then-Supreme Court nominee Brett Kavanaugh in her office on Capitol Hill on August 21, 2018. (photo: Zach Gibson/Getty Images)
Gov. Kevin Stitt of Oklahoma. (photo: Sue Ogrocki/AP)
yle Willis hadn’t seen Kimberly Graham in years, since the day she was sentenced to 107 years in prison after she drunkenly plowed her truck into a group of motorcyclists in Tulsa, killing five people, including his mother and stepfather.
So it was a shock when he saw her at a court hearing last month — tanned, dressed in a frilly purple top and jeans and laughing — a free woman. Graham, who is Native American, was let out of prison in April after a Supreme Court decision last year that found that a large part of eastern Oklahoma is still Indian country. Despite a century of state and local prosecutions, the court ruled that crimes there were the province of federal and tribal courts.
“She’s enjoying life as if nothing ever happened,” said Willis, 34, of Broken Arrow, Okla., who said the sight of Graham left him numb. “It’s bizarre. It’s crazy.”
The Supreme Court’s landmark decision in McGirt v. Oklahoma said prosecution of Native Americans for crimes in the expanded Indian country must be carried out in federal and tribal courts, rather than by state or local officials. It was celebrated across the country by Native Americans last July, who saw it as a historic affirmation of treaties signed with the U.S. government in the 1800s.
But in the year since, the ruling has upended Oklahoma’s criminal justice system, imperiled convictions in thousands of cases, sowed confusion for police and emergency responders and led to the direct release of more than 50 criminals convicted on charges including second-degree murder and child abuse, state records show.
And there may be wider impacts for the region, which covers 19 million acres in eastern Oklahoma, includes a portion of the state’s second-biggest city, Tulsa, and is home to 1.8 million people.
A local power plant is challenging an increase in its property taxes. The state is fending off a move by the federal government to strip its ability to regulate mines on Indian land. The state has also raised concerns about a potential loss of tax revenue.
The fallout has exacerbated long-standing tensions between Oklahoma’s Republican governor, Kevin Stitt, who is a citizen of the Cherokee Nation, and the leaders of five tribes involved. Stitt held a community forum on the issue this month that degenerated into raucous shouting, with attendees booing and chanting, “Treaties are the law of the land!”
“We are living a nightmare out here,” said Ryan Leonard, the Oklahoma governor’s special counsel for Native American affairs. “It’s complete, dysfunctional chaos in the state of Oklahoma.”
Leaders of the tribes have pushed back against Stitt, saying that the state stoked fear by alleging that criminals are being released and that state officials have overestimated the number of cases that may have to be revisited — about 79,000, by the state’s count.
“People see McGirt as this drastic change in the law, but the tribes don’t see it that way,” said Sara Hill, the attorney general of the Cherokee Nation. “They see it as affirming and restoring authority to the tribes.”
The Oklahoma Department of Corrections says that courts have dismissed or vacated convictions in 129 cases because of McGirt. The total includes at least 57 people who were released after being earlier convicted of crimes including child abuse, robbery, manslaughter, second-degree murder, shooting with intent to kill, lewd acts with a child and burglary.
With the state forced to step back, the tribes have expanded their legal operations, adding new prosecutors, marshals and victims services coordinators. The Cherokee Nation, for example, has added six prosecutors, two district court judges and 13 marshals in recent months, filing 1,300 cases this year.
The Cherokees support proposed federal legislation introduced by U.S. Rep. Tom Cole (R-Okla.) that would allow them, as well as the Chickasaw Nation, to forge an agreement with the state to resolve jurisdictional issues.
But other tribal leaders are loath to make any concessions after the ruling affirmed the binding nature of commitments made to their forebears generations ago.
“The McGirt decision has created so many opportunities for improved safety and security for all citizens of Oklahoma,” David Hill, the principal chief of the Muscogee Creek Nation, said in a statement. “We have continually sought collaboration with state and local officials to realize this new promise. But rather than work together, some politicians seem determined to return to the broken system of the past.”
Supreme Court Justice Neil M. Gorsuch invoked the nation’s troubled past when he cast the deciding vote in McGirt last summer. The ruling came after lawyers for a convicted child molester, Jimcy McGirt, argued that the state did not have jurisdiction to prosecute him because he was a Native American on tribal land.
“On the far end of the Trail of Tears was a promise,” Gorsuch wrote, alluding to the forced relocation of the Cherokee, Choctaw, Chickasaw, Creek and Seminole nations in the 1800s. “Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever.”
He concluded: “Because Congress has not said otherwise, we hold the government to its word.”
Gorsuch said the objections by Oklahoma and the federal government that such a finding would throw law enforcement in the area into chaos were not enough: “Dire warnings are just that, and not a license for us to disregard the law.”
Gorsuch, the only member of the Supreme Court to have served on a federal appeals court in the West, has been a strong vote for Native American interests on the court. Although a consistent conservative, he sided in McGirt v. Oklahoma with the court’s then-four liberals, including Justice Ruth Bader Ginsburg, who died in September.
However, Chief Justice John G. Roberts Jr. warned in his dissent that “the State’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out. On top of that, the court has profoundly destabilized the governance of eastern Oklahoma.”
This spring, Oklahoma filed an emergency application with the Supreme Court and said Roberts’s prediction had been prescient.
In applying the McGirt decision, the Oklahoma Court of Criminal Appeals threw out the state conviction of a man convicted of murder in the killing of a Native American woman and her two children in what is now considered Indian country and opened the door for others to contest their convictions.
The federal government intends to retry Shaun Michael Bosse and others convicted in the most serious cases, including inmates on death row. Those prisoners are unlikely now to face the death penalty, the U.S. attorney’s office said. According to federal law, tribes have to opt in for the death penalty, and none of the five tribes has done so.
The U.S. attorney’s office for the Northern District of Oklahoma said it had reviewed 2,460 cases by mid-July, accepting 826 for prosecution and referring approximately 1,474 to tribal prosecutors. It has had to expand its staff by more than 58 percent as caseloads have doubled.
But not all cases will head back to court, and then-Oklahoma Attorney General Mike Hunter told the Supreme Court that significant numbers of convicts would be released.
“It appears likely that 27% of convicts who raise McGirt postconviction claims have a good chance of going free without re-prosecution by the federal government,” Hunter said in the emergency application this year. “Given the hundreds of post-conviction cases now accumulating in district courts, the public safety considerations are frightening.”
Hunter asked the justices to put the state court’s ruling on hold while the state prepared for another try at the Supreme Court, and the court agreed, without explaining its reasoning. The court’s three liberals dissented.
The court’s willingness to grant the stay in the Bosse case may indicate that some of the justices are willing to reexamine or limit the McGirt ruling, analysts said. The court’s balance on the issue has shifted, with the liberal Ginsburg replaced by conservative Amy Coney Barrett. The state is preparing a formal petition to the court to accept the case for additional briefing and oral arguments.
The court’s stay in the Bosse case has granted the state some breathing room, but law enforcement officials and emergency responders say the McGirt ruling continues to cause complications.
Charlie D. Peoples, an emergency response dispatcher, said McGirt has meant that he is now required to ask 911 callers if they are members of a federally recognized tribe. If they are, he transfers the callers to the Muscogee Creek Nation, where they are “sometimes met with a hold tone and music because the call volume is so high,” he said
Law enforcement officers responding to a scene have seen tribal license plates on cars, then spent time sorting out who was Native American and who was not, Peoples said.
“The rules are very unclear, and we have no formal training,” he said in an interview. “It’s very confusing, and it’s very taxing on all first responders, honestly.”
In recent weeks, family members of victims like Willis have organized protests as they grapple with fresh wounds from traumatic chapters of their lives they believed were closed or at least finally adjudicated long ago.
“We are retraumatizing victims at a perilous rate. That is not anywhere close to justice,” said Steve Kunzweiler, the district attorney for Tulsa County.
Federal and tribal prosecutors will have to retry some cases for which key witnesses have died, and in which memories have faded and evidence has been lost. Tribal courts can sentence up to a maximum of three years per count and can order those sentences to be served consecutively, for up to nine years in some instances.
Tessa Williams, 50, of Owasso, is steeling herself for the federal retrial of Clarence Rozell Goode Jr., who was given the death penalty after he was convicted of killing her sister, brother-in-law and 10-year-old niece Kayla with two accomplices during a family dispute in 2005. A lead detective in the case has died, along with several witnesses, including Williams’s mother, who found the bodies when she stopped by the home to give Kayla her cheerleader uniform.
“Some days I don’t even remember why I go into the kitchen, but I can tell you every detail of what happened then, the things you heard and what was done in that courtroom,” Williams said. “I don’t want to see it again; I don’t want to hear it again.”
But, Williams said, “there’s nothing we can do about it but stay strong and do our part and make sure justice is carried out.”
Graham, the woman who was released in April, was convicted in 2008 on five counts of manslaughter and leaving the scene of an accident after she allegedly drank alcohol and drove her truck into a group of people, including Willis’s mother, DeAnna Rosser-Coatney, a fourth-grade teacher. A witness later testified that Graham left an “explosion of bodies” in her wake as she left the scene.
Federal prosecutors cannot retry the case because of a five-year statute of limitations on manslaughter. The tribal court has a limit of seven years. But after family members, including Willis, waged an extensive campaign of telephone calls, emails and TikTok videos, prosecutors for the Creek Nation agreed to take up the case. They argued in filings that the statute of limitations should be suspended because of the unusual circumstances of the McGirt decision. Graham is free on a $52,000 cash bond.
Her lawyer, Richard 0’Carroll, said she did not want to give an interview.
“She’s moving on with her life,” he said.
He said she was unlikely ever to spend another night in jail in the case.
Customers wear face masks to prevent the spread of the novel coronavirus as they line up to enter a Costco Wholesale store April 16, 2020 in Wheaton, Maryland. (photo: Chip Somodevilla/Getty Images)
Speaking to CBS's "Face the Nation" host John Dickerson, Gottlieb said the makeup of the delta variant is not vastly different from those of prior dominant strains of COVID-19.
"So it's not more airborne and it's not more likely to be permeable to a mask. So a mask can still be helpful," Gottlieb said. "I think, though, if you're going to consider wearing a mask, the quality of the mask does matter. So if you can get your hands on a KN95 Mask or an N95 masks, that's going to afford you a lot more protection."
Gottlieb also said that at the beginning of the pandemic, health experts advised against acquiring such masks due to shortages, but he praised the Biden administration for "ramping up" supply.
"So I would encourage people look at the quality of the mask and try and get their hands on a better quality of mask," he said.
Gottlieb also spoke about how transmissible the delta variant is, stating that vaccinated people are still less likely to spread it, though the chances of transmission are likely higher when compared to the transmissibility of older strains.
"There probably is a higher chance that you can transmit this delta virus than some of the old strains because there's just more of this virus. The viral levels are higher earlier in the course of the infection," Gottlieb said.
Carissa Moore of the United States, practices for a World Surf League competition at Surf Ranch on Wednesday, June 16, 2021, in Lemoore, Calif. (photo: Noah Berger/AP)
Amhara borders Tigray to the south, and the two regions are embroiled in a decades-old land dispute that has become central to the eight-month-old war in Tigray. (photo: Eduardo Soteras/AFP)
War set to expand in Ethiopia as Amhara regional president calls on all people of age who are armed to mobilise.
Amhara borders Tigray to the south, and the two regions are embroiled in a decades-old land dispute that has become central to the eight-month-old war in Tigray.
Sunday’s statement from Amhara regional president Agegnehu Teshager echoes a call made Friday by the president of Ethiopia’s Afar region just east of Tigray.
Together the two statements highlight the potential for the Tigray war, which Prime Minister Abiy Ahmed declared all but over in late November, to draw in the rest of the country.
“Starting from tomorrow (Monday), I call on all people of age who are armed either at governmental or private level to mobilise for a survival campaign,” Agegnehu said.
“We have called on the general public to stand on our side. Now, the public is on our side in every aspect,” he added.
“The support we are receiving from civil servants in the region is overwhelming. We are proud of that.”
Abiy, winner of the 2019 Nobel Peace Prize, sent troops into Tigray last November to overthrow the region’s ruling party, the Tigray People’s Liberation Front (TPLF), a move he said was in response to TPLF attacks on federal army camps.
Fighting dragged on for months before the war took a stunning turn in late June, with pro-TPLF fighters reclaiming the Tigray capital Mekelle and Abiy declaring a unilateral ceasefire.
Yet clashes have continued and officials from six regions and the city of Dire Dawa have since said they would send troops to back up government forces.
Last week the Tigrayans pushed their offensive to Afar, their neighbouring state to the east, where they said they planned to target troops from the Amhara region fighting alongside the federal military in the area.
Afar is a strategic region for landlocked Ethiopia because the main road and railway linking the capital Addis Ababa with the seaport of Djibouti runs through it.
At least 20 civilians were killed and tens of thousands displaced in fighting in Afar, an official said.
Rebel spokesman Getachew Reda has pledged to “liberate every square inch of Tigray”, including its western and southern portions, disputed territories that have been occupied by Amhara forces since the beginning of the war.
A communications blackout in Tigray makes it difficult to confirm who holds which territory.
The war has already killed thousands and, according to the United Nations, pushed hundreds of thousands into famine.
Protesters swarm the New York State Capitol in June 2019 to demand Gov. Andrew Cuomo sign a major climate change bill originally known as the Climate and Community Protection Act. (photo: Twitter/Adrien Salazar)
New York’s sweeping climate law will prioritize environmental justice communities — once it decides who they are.
But who the “Justice40” program ends up serving rests, in large part, on a deceptively simple question: What defines a disadvantaged community?
While little has been released publicly about how this question is being adjudicated at the federal level, environmental justice leaders are currently grappling with it at the state level in New York, where the idea for Justice40 originated. In 2019, a coalition of Empire State environmental groups successfully lobbied for a similar provision to be included in a statewide climate change bill, now known as the Climate Leadership and Community Protection Act. Now, several members of that coalition are participating in a working group that’s developing the state’s official definition for “disadvantaged communities,” or DACs, under the supervision of the state’s Department of Environmental Conservation, or DEC.
This isn’t a matter of crafting a statement that you might find in a dictionary. The unpaid advisory group, which includes the leaders of community organizations from across the state, has a much more complicated task. It involves not only deciding on a set of criteria for the definition, but also choosing the data points that will measure that criteria, and then working out how to combine those data points to score and rank every community in the state. These technical decisions will determine which of New York’s census tracts will be prioritized for pollution cleanup, clean energy programs, job training, public transportation improvements, and energy efficiency upgrades that lower utility bills — and which will not.
The working group plans to finish its draft definition by September. It will then undergo a 120-day comment period during which at least six public hearings will be held before the definition is finalized.
Many working group members are longtime environmental justice advocates who have played advisory roles in past government efforts to engage with communities. Several told Grist that they hope their participation in this foundational work is a break with those previous experiences.
“For years what agencies have done is manage our expectations,” said Elizabeth Yeampierre, executive director of the Brooklyn-based nonprofit Uprose. “They have this dog and pony show where they basically cook the solutions, and then bring them to communities to see if we can provide them with input and respond to something that they created without us.”
Yeampierre said this working group is an opportunity to demand a different kind of practice. “We’re saying that climate change really demands co-governance — that communities need to be seen as the experts and as a resource,” she explained.
But in a state as geographically and socioeconomically diverse as New York, weighing the hardships that communities face and channeling them into a single equation is a tall order. Every decision has the potential to make the policy more or less effective at reaching communities that are the most marginalized, vulnerable, and in need of targeted assistance. The working group has had to wrestle with the limitations of key data sets, a bias toward urban areas in existing metrics, and the reality that even the best definition cannot alone overcome local resource and capacity constraints that might prevent the most disadvantaged communities from accessing funding.
During a working group meeting in June, Amanda Dwelley, director of quantitative research at the consulting firm Illume, compared the group’s project to baking a cake.
First, they need ingredients: in this case, geographic data sets that measure different types of disadvantages that communities experience. These might be measures of certain air and water pollutants like benzene, concentrations of health problems like asthma, socioeconomic vulnerabilities like poverty and race, or climate change-related risks like future flood projections. One of the first things the working group did when they began meeting late last summer was brainstorm as many of these “ingredients” as they could. The initial list included more than 150.
Dwelley, who was hired by the state to help guide the working group through this highly technical and data-centric process, said Illume then worked with the DEC to pare that initial list down to about 40 different metrics. Some of the items were eliminated because they were redundant, but many had to be dropped because there was simply no reliable statewide or census tract-level data — or no data at all — to measure them.
For example, though the group wanted to factor “access to public transportation” into their definition, the available data didn’t cover all of the state’s transit systems, making it impossible to compare communities by this metric. Inevitably, the method for identifying DACs will only be as true to life as the data that underlies it.
In some cases, however, there are workarounds for statistical shortcomings. While childhood lead exposure itself can’t be accurately assessed statewide, Illume pulled data on homes built before 1960, which tend to have lead paint, and is still working with the state’s Department of Health to see if there’s a more precise proxy measure.
At times, the group has also been able to use this opportunity to push the state to collect better data. Eddie Bautista, a working group member who is the executive director of the New York City Environmental Justice Alliance, has repeatedly stressed the importance of including land zoned for manufacturing in the criteria — data that exists locally but not in a statewide data set. In response, the DEC began compiling local zoning data from across the state, and the group will be able to include the metric in its definition.
After taking these steps to select their proverbial cake’s ingredients, the working group will also need to decide how to combine them all before baking their final definition.
For guidance on this step, the New York group has looked to California, which created its own definition for DACs in 2014 after launching its cap and trade program. The program requires major greenhouse gas emitters to pay into a climate investments fund, and 25 percent of the fund’s grants must go to DACs.
California developed its own environmental justice mapping tool, called CalEnviroscreen, which can be used to compare the cumulative burdens communities face throughout the state. The state uses that tool to identify DACs, drawing on 20 different criteria and grouping them into two main categories: pollution burden and population characteristics. An average score is calculated for each of the two categories for every census tract in the state, and then those scores are multiplied — the logic being that an individual’s socioeconomic and personal health status can exacerbate the risk of pollution exposures. For example, asthmatics are more sensitive to air pollution than non-asthmatics, and poor people tend to have less access to health care to address pollution-related illnesses.
The New York working group is leaning toward dividing its criteria into two very similar categories to be multiplied together: burdens and vulnerabilities. Burdens would include things like pollution, historical discriminatory practices like redlining, and climate change risks like extreme heat and flooding projections. Vulnerabilities would include socioeconomic factors and health issues like asthma.
There are other, more complicated ways to combine the criteria that might be warranted. For example, if the equation ends up designating DACs in an area like the Hamptons, which faces serious flooding and storm surge risks but is not vulnerable from an environmental justice standpoint, the group could double certain ingredients in the recipe, giving more weight to criteria like income or health disparities. (The median household income in Southampton is $122,000.)
Alternatively, the group could calculate scores for burdens and vulnerabilities separately, eliminate any communities that aren’t in the top percentile of both, and then combine the two scores for the remaining list and include only the highest-scoring out of those.
“There are so many little things we could be doing to guide the definition one way or the other,” said Illume managing director Alex Dunn during a working group discussion in March. “We need to be explicitly transparent about each of them.”
In addition to choosing ingredients and figuring out how to combine them, the third and perhaps most consequential step in this recipe is figuring out how to slice the cake when it comes out of the oven.
In February, Dunn presented a preliminary model identifying DACs based solely on income and racial demographics. As a result, New York City accounted for 69 percent of all DACs, despite containing just 43 percent of the state’s population. The exercise demonstrated that the sheer density of both poverty and people of color in the city are likely to lead to it being overrepresented, even after other criteria are included. Dunn suggested that the group might want to consider slicing the cake in such a way that ensured that DACs were more evenly spread throughout the state.
“Our choices here are really going to matter,” she said. “This is not something that should just be data-driven.”
One way to ensure a more even spread throughout the state would be to assign a fixed share of the DACs to New York City and an equal share to the rest of the state — for example, designating the top 25 percent of highest-scoring census tracts in NYC as DACs, as well as the top 25 percent of census tracts in the rest of the state.
At a later meeting in April, Illume updated its preliminary model to reflect criteria beyond race and income. Dunn showed the group maps that indicated where DACs would be under two scenarios — one that strived for more regional parity, and one that just took the top scoring census tracts statewide. The difference was still stark.
In the meeting, Bautista wrestled with the consequences of deliberately allotting fewer DACs to his city. On the one hand, New York City has more than 1.3 million people living below the poverty line. On the other, it has more resources to meet poor communities’ needs: In 2019, New York City’s budget per capita was about $10,000. Buffalo, New York, which is one of the poorest cities in the country, had a per capita budget of just under $2,000.
But funding distribution is not the only factor to consider. By law, the state must also prioritize pollution reduction in DACs. Fewer DAC designations in New York City may make some of its neighborhoods less likely to be considered “overburdened” during permitting processes for new polluting infrastructure. In other words, in a worst-case scenario, removing them from the equation could ultimately lead to them becoming more polluted.
California, for its part, just lets the chips fall where they may, with no regional prioritization. According to a 2018 analysis by the California-based nonprofit Greenling Institute, about 50 percent of the state’s DACs are in the greater Los Angeles region. Rural central California also has a significant share of about 20 percent, due to high scores for pesticide use, poverty, and linguistic isolation, among other factors. The Bay Area, home to roughly 22 percent of the state’s population, has only about 5 percent of its DACs.
Manuel Pastor, director of the University of Southern California’s Equity Research Institute, said the regional breakdown in California can be partially attributed to both the Bay Area’s higher incomes and to wind patterns that concentrate smog in Southern California, giving the area very high pollution scores for criteria like ozone, particulate matter, and vehicle fumes. But even though the Los Angeles region is well-represented, its most vulnerable communities are not necessarily guaranteed the priority access to funding that one might expect, according to Pastor.
“You don’t have a lot of specificity about driving your resources to perhaps the most sharply exposed and socially vulnerable neighborhoods within a region,” he said, noting that some of the most heavily-burdened neighborhoods are less likely to have community organizations or nonprofit housing developers ready to apply for funding than some of the neighborhoods a little further down the list. For example, the small, mostly Latino suburb of Bell Gardens doesn’t have the same civic infrastructure as the neighborhoods that surround the University of Southern California. Both areas include DACs, but they’re not on equal footing when it comes to obtaining funding.
Alvaro Sanchez, vice president of policy at the Greenlining Institute, said that the state’s grant programs historically have been geared more toward urban environments at the expense of more rural DACs. Greenlining found that as of 2018, the Bay Area had received about 22 percent of the state’s climate investments from the cap and trade program despite only hosting 5 percent of all DACs, while the Central Valley had only received about 8 percent, despite hosting twice that share of the state’s DACs.
These examples underscore the reality that any policy meant to distribute resources to marginalized communities is going to depend on how it is administered as much as it will depend on the initial policy design. Environmental justice advocates often stress that it’s not enough for states to make funding available to disadvantaged communities, who may not have the time or resources to figure out how to apply for it — or even know that it exists. Agencies need to actively reach out to communities and provide planning resources and technical assistance.
“How are you thinking about how you’re going to be communicating with frontline communities?” Rahwa Ghirmatzion, executive director of a Buffalo-based community organization, asked a DEC staff member during a working group meeting. “How are communities deciding for themselves what they want and need?”
These implementation concerns are outside the scope of the definition, but there’s a more pertinent question that will help determine how much access any given community has to funding opportunities: Just how big is this cake going to be? Once there’s a set list of criteria and a method for scoring every census tract based on that criteria, what should the cutoff be for assessing communities’ scores? Out of New York’s 4,918 census tracts, just how many should be considered disadvantaged?
The reason New York environmental groups lobbied for the 40 percent provision in the first place is that about 41 percent of the state’s population are people of color, and 43 percent of the population earns less than $50,000 per year. But let’s say the cutoff for who gets designated a DAC ends up capturing only a third of the population. In theory, that would mean that the state’s neediest could receive a greater share of the benefits: 35-40 percent of the benefits would be guaranteed to the most disadvantaged third of the population. If more census tracts are included in the model, the amount of benefits available to any given DAC could shrink. (New York’s climate law says the goal is for DACs to receive 40 percent of benefits, but it requires that DACs receive “no less than 35 percent.”)
California, for its part, decided to designate the top 25 percent of its highest scoring census tracts (which include 25 percent of the state’s population) to be “disadvantaged” after doing extensive public engagement on the question. State agencies held regional workshops where they showed people maps and charts of what it would mean if 20, 25, and 30 percent of the population were designated DACs. Ultimately, while a threshold of 20 percent was considered to concentrate funding on areas most in need, concerns that it was excluding key communities won out, and 25 percent was chosen.
But while that sounds like all it does is ensure that DACs receive benefits in proportion to their share of the population, a recent report on California’s program advertises that nearly 50 percent of the funds disbursed since the program’s inception have benefitted “priority populations.”
How New York State plans to define and calculate the “benefits of investments” is still an open question, but it’s possible that 35-40 percent will end up being a floor, not a ceiling.
For now, the working group may have to accept the fact that they might not get everything right the first time. But any weaknesses in the definition don’t have to be set in stone.
“One thing that I would just really emphasize for both the New York example and what’s happening here in California is that this is an iterative tool,” said Sanchez of the Greenlining Institute. “It’s consistently getting upgraded.”
Another lesson from California is that the question of identifying disadvantaged communities is not just about one stream of funding. Once New York has a screening tool in place with the ability to map different data across the state, it can use that data for a wide variety of programs. Diane Takvorian, executive director of the Environmental Health Coalition, told the working group that ever since CalEnviroscreen was first built to evaluate cumulative environmental burdens, it has been integrated into more than a dozen pieces of legislation and regulations at the state and local level.
“If the framework for identification for the most impacted communities is solid, you can build a series of legislative pieces that go with it to attack the problems most important in your communities,” she told the New York working group in March.
While the stakes of determining which communities get designated “disadvantaged” and which don’t seem high, Bautista frequently reminds his fellow working group members that the definition will not, on its own, exclude any community from receiving state funding.
“If communities are not disadvantaged at the end of this process, that doesn’t mean that they are not going to be eligible for funding,” Bautista reminded the group during one of the discussions about regional parity. “There’s 60 percent of the rest of the funding that’s going to be up for grabs. We’re talking about targeting the funding.”
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