Daniel L. Feldman

Centralization of power

In Criminal Justice Policy, New York State Government, New York State Politics, Policy on September 16, 2012 at 2:18 pm

Two years after I returned to my normal life in the Assembly after the 1989 race for District Attorney, the U.S. Attorney for the Eastern District of New York convicted Mel Miller for cheating clients of his law firm out of profits they made on a transaction.  Two years later the federal Court of Appeals reversed the conviction, holding that the clients had no clear right to the profits in the first place. Under New York State law, Miller had to give up his elective office when he was initially convicted of the felony. The law has no provision for returning his office to him upon the reversal of such a conviction.

Stanley Fink and Mel Miller, as Speakers of the Assembly, wielded enormous power over members’ staff allocations, member items, and even which of their bills would become law. However, they led their Democratic majority as small “d” as well as large “D” democrats: they were good at judging what policy direction the majority of our caucus wanted to pursue, but checked to make sure they were right – and no member of the Democratic caucus hesitated to disagree, even forcefully, with those Speakers behind the closed door of our conferences. Some members, like me, even had open and public disagreements with the Assembly leadership, and were promoted, not punished. In my effort to change New York’s transactional immunity law to the much more typical state and federal “use immunity” law, I fought against Mel Miller when he chaired the Codes Committee. New York prosecutors had explained to me how it allowed some criminal defendants to get away with crimes – with murder, in the case of Delissa Carter – because it immunized them from prosecution related to any event about which they testified before a grand jury. I failed to change the law, but the New York Post praised me for my effort and lambasted Mel. Nevertheless, he gave me the first committee chairmanship at his disposal when he became Speaker.

Stanley had told committee chairs, “I decide the budget. You decide everything else.” This was mostly but not entirely true. First, the committee chairs always included two or three nitwits, and no Speaker allowed them to exercise any significant power. But those were exceptions. More generally, no legislature could have a dozens of legislators each deciding how much money to allocate to individual parts of the budget: to education, prisons, health, and so forth. Naturally the committee chair for each such area would tend to “break the bank” on behalf of the constituencies he or she most deals with, and to try to solve the problems for which he or she had most responsibility. Someone has to be able to weigh the great variety of needs against each other, and settle on allocations that would not, in the aggregate, bankrupt the state.  However, Stanley and Mel carefully consulted committee chairs for the more detailed information and therefore superior grasp of budgetary nuance each chair was likely to command, and took that information and nuance into serious consideration in shaping their decisions. On the other hand, while committee chairs made policy in their respective substantive areas, they were only permitted to do so within the general parameters of what the Democratic majority caucus would allow, and the Speaker enforced those limits.

But in my very first year as chair of corrections, I negotiated significant changes to the kinds of sentences low-level drug offenders would serve. Larry Kurlander, Governor Cuomo’s Criminal Justice Coordinator, Chris Mega, the Republican chair of the Senate Committee on Crime and Correction, who became my good friend thereafter, and I agreed to establish shock incarceration and earned eligibility, two programs that significantly reduced time actually incarcerated for many inmates. We each understood the range of choices we were each respectively allowed, but that range was broad enough so that prior to our negotiations most of our colleagues probably never even heard of the programs we decided to approve.

After Mel had to relinquish his office, things changed. My preferred candidate for Speaker, Jim Tallon, from Binghamton, would doubtless have continued in the mold of Stanley and Mel. But Jim’s gentlemanly qualities deterred him from the aggressive campaigning that might have won the job. Although Saul Weprin was also an extremely nice man, his key backers, Michael Bragman and Sheldon Silver, provided enough aggressive politicking on his behalf for Saul to win overwhelmingly.

Weprin died less than two years later, and may well have been more seriously ill than we recognized even from the start of his speakership. His counsel, Ben Chevat, moved to consolidate power – whether truly on Saul’s account, or in the interests of Bragman and Silver, remains unknown.

Although they were paid out of the Assembly’s central staff allocation, not out of my committee budget, I had been accustomed to selecting my committee staff and expecting them to follow my direction, unless of course they offered ideas I liked, which they often did. A few months after Saul’s accession to the Speakership, my program associate, Dick McDonald, shocked me by informing me that he could not work on a policy project I had asked him to pursue (I no longer remember the subject). He explained that Carol Gerstl, his “team leader,” had decided against it, and that Chevat had been informed that they were now to take direction from their staff chain of command, not from their committee chairs.

I collected my colleagues who chaired Codes, Judiciary, and Government Employees, all of whose staffs reported to Gerstl, and demanded a meeting with Weprin. Chevat tried to meet us, but we bypassed him, and explained to Weprin that he would have four immediate committee chair resignations if our power to direct our committee staff was not restored. Weprin immediately agreed.

When Silver succeeded Weprin, however, sometimes subtly and sometimes more overtly, central staff gradually usurped much of the power of committee chairs anyway. This did not improve my relationship with Silver, or endear us to each other.

 

 

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