Dec. 16, 2015 (Mimesis Law) — Ed. Note: Scott Greenfield crosses New York State Assembly member Charles Lavine (D-Glen Cove), Chair of the Assembly Ethics Committee and a former criminal defense lawyer. Assemblyman Lavine authored a New York Times op-ed following the convictions of Assembly Speaker Sheldon Silver and Senate President Dean Skelos.
Q. Before being elected to the New York State Assembly, you were a criminal defense lawyer, starting with the representation of indigent defendants at the Legal Aid Society, becoming a member of Grossman, Lavine & Rinaldo, and then going solo. That’s a lot of baggage, in terms of experience and exposure, particularly since you took the most difficult route possible, primarying an incumbent just to get to the general election. Why? What drove you to take such a crazy chance? Was your history on the wrong side of the courtroom used against you? What does it take for a criminal defense lawyer to win an election?
A. I had always been involved in some type of politics. Before running for the Assembly, I had been Democratic leader of the Glen Cove Committee, counsel for the Industrial Development and Community Development Agencies, served two terms as counsel for North Country Reform Temple, served on the Planning Board and on the City Council. I had also fought to elect good people to my school board and for responsible school budgets. By 2004, passing school budgets in Glen Cove and other communities had become very difficult in part because New York State hadn’t had a budget on time for 20 years and it was impossible to know how much state funding would be available when education budgets were voted upon. I ran on a platform of on time budgets, the fundamental building blocks of good government. I never viewed fighting for what was right as “taking a crazy chance,” perhaps in small measure because of the years I spent representing unpopular people.
Being a defense lawyer in controversial cases was used against me. I believe, though, that it probably got me more votes than it cost me. The people who would hold the crimes of my clients, primarily appointed clients, against me would likely never vote for anyone like me anyway.
Criminal defense lawyers who have been involved in their communities and local governments and have some experience in politics can win elections. Whether prosecutors or criminal defense lawyers, it is critically important to have good lawyers in elected office.
Q. On the day you got off the (metaphorical) bus in Albany, you must have had some anticipation of what you would be looking at as a member of the state Assembly. Was it what you expected? Did you expect politics to be altruistic or dirty? Did you expect your colleagues to be knowledgeable, dedicated public servants, putting the interests of their constituents first and foremost? What did you find there? What surprised you, thrilled you, appalled you, when you took your seat in the Assembly?
A. Human nature is the same, whether in local or state government. As in local government, most of the members were well intentioned and dedicated. What I did not anticipate was the skill, professionalism, knowledge and dedication of the staff. While little appalled me, it was extremely distasteful to witness the manner in which some Senators gloated on one of the evenings that marriage equality was defeated. Whether for or against, the debate was about human rights and deserved far more respect from those who were victorious than night. Their victory, however, would prove to be short lived.
Q. The view of lawmaking from the outside is never quite the same as it is from the inside. No doubt you could have rattled off a few dozen changes in law that were absolutely needed when it came to the New York Criminal Procedure Law and Penal Law, having lived through the mess as a trench lawyer. As a rookie legislator, was anyone interested in doing anything to reform the mess? Did you have the chance to make changes or were you met with fellow legislators who thought the new kid should be seen and not heard? Was your experience shown respect, or were you relegated to the seat farthest away from power and influence?
A. The Assembly conducted the most extensive hearings on the death penalty in American legislative history starting in the months before I was sworn in. While I was allowed to sit with the members for the initial hearing, I asked no questions before being sworn in, after which I was able to engage and play a meaningful role in that I was the only member who had ever handled death penalty cases in both the state and federal courts. I believe my opinion and knowledge were valued and I am very pleased that those hearings were instrumental in ending the death penalty in our state.
Q. As a newly elected, first-term Assemblyman, having just won a two-year term of office and still exposed to the potential of being unseated in the next election, what was the impact of having to run again, to raise money to fund your next election a mere two years off? Certainly, the support of the party would be crucial in keeping your seat, Was this a means of keeping a new legislator under control, toeing the party line lest he be the target of a primary with the support of the party leader? How much room did you have to move, regardless of what the party wanted you to do?
A. Interesting question. I have experienced political pressure, but very rarely by party leaders. That pressure came more from special interest groups. For example, the NRA once said it wanted to “take a shot at getting rid” of me and was “targeting” me for defeat. Tea Party opponents once brought an armed gunman to a debate I was having in a synagogue. When I supported consolidation of local governmental services, some local village officials were very antagonistic. One must be somewhat thick skinned and it also helps if one is not unduly afraid of controversy.
Q. In the aftermath of the convictions of former Assembly Speaker, Sheldon Silver, and former Senate President, Dean Skelos, two of the “three men in a room,” and with rumors swirling that the third man, Governor Andrew Cuomo, might soon find an indictment with his name on it, some might have suggested the best political move for a legislator was to keep a low profile, stay under the radar. Instead, you wrote an op-ed for the New York Times suggesting changes that might end the corruption reflected in these convictions. What were you thinking? Why go counter to the common wisdom of keeping your name off Preet Bharara’s short list to take a chance by going public?
A. I became Chair of the Assembly Ethics Committee, Co-chair of the State Legislative Ethics Commission and Chair of a taskforce charged with redesigning the Assembly’s sexual harassment and retaliation policies in 2013, in the midst of the Vito Lopez crisis. Even though those positions involved very steep learning curves, they provided me with a unique vantage point from which to evaluate the ethical debacle that has led to the convictions of the Assembly Speaker and the last six Senate leaders. Writing the Times Op-ed was my responsibility and obligation. I believe United States Attorney Bharara is a consummate professional and I have no reason to fear that I will become a target of any investigation. The prosecution of legislative wrongdoers is an essential ingredient of good government.
Q. In your op-ed, you confront some very real problems that elude the understanding of many member of the public. One of your most significant points is that the Assembly needs to change to four year terms from the current two years, relating back to the fact that it leaves legislators with about a twelve hour honeymoon before they have to hit the streets to fund their next election. The reaction in the Times’ comments wasn’t entirely positive, with many suggesting that a four year term just lets corrupt politicians stay in office longer. How do you explain the real life incentives faced by politicians to people who are sick and tired of politics? If the public view of politicians is so cynical, and why wouldn’t it be given the convictions, how can they be convinced that there are legislators in Albany who aren’t there to enjoy graft and power?
A. My Op-ed piece does not call for four-year terms. It addresses reforms that the Senate and Assembly could take on their own to improve the legislative process and, in so doing, improve the legislative product. I remain an admirer of President John F. Kennedy and am still moved by his call that we ask not what our country can do for us, but should instead ask what we can do for our country. That sense of selflessness is an important ingredient of American exceptionalism. It is not a philosophy shared by some my colleagues who are intent on frustrating shared efforts, that is, governmental efforts, to make life better for our people. If we value our families, then we are dedicated to our communities, which are simply collections of our families. Government is nothing more or less than the organizational extension of community. My colleagues who revel in cynicism are engaging in the most cowardly forms of demagoguery.
Q. As you also make clear in your op-ed, the whole citizen-legislator schtick sounds a lot better from a populist point of view than it does from the perspective of legislators trying to get anything accomplished. You write:
Despite the fact that New York is one of the largest states in the country and one of the largest economies in the world, my colleagues and I work shockingly few hours: Next year we are scheduled to spend just 57 days in Albany between Jan. 6 and June 16, when the legislative session ends.
Thirty of those days will go toward completing the state budget, due at the end of March. Those days will be totally consumed with fiscal analysis and negotiation, leaving only 27 days between April 1 and June 16 to consider all other governmental business, including more than 10,000 bills. There’s little chance we’ll get to more than a handful of those.
The numbers reveal an obvious and insurmountable problem, and explain a lot about why laws in desperate need for enactment or reform, like the dreaded archaic P.L. 265 knife law that has been so badly abused by police and damaged so many lives, will never reach the top of the list for consideration. If the Assembly doesn’t go full time, does that mean there is no hope for reform? What does a former criminal defense lawyer tell working guys who are arrested and prosecuted for nonsensical laws, whose lives are ruined because Albany doesn’t have the time to care?
A. We have to realize that the Assembly has been far more interested in modernizing our criminal laws than has the Senate. Mentioned earlier, the extensive hearings on the death penalty were conducted in the Assembly, not the Senate. As presently constituted, the Senate would easily and has easily passed bills reinstituting the death penalty and increasing criminal sentences whether justified or not. I would tell New Yorkers not to give up on the hope that change can be accomplished. That change, however, will remain elusive so long as the public is disengaged and lacks faith in its elected representatives to bring that change about.
Q. It seems the legislature is far better at passing new laws than cleaning up the mess of old ones that need fixing. And yet, the latest flurry of penal issues, such as bullying and campus sexual assault, raised significant and, perhaps, insurmountable constitutional issues. Does the legislature think about these problems? Do they understand the problems they create? In light of the popular support for ever more crimes, does the legislature have the guts to just say no to laws undermining due process?
A. There are any number of proposed criminal and civil legislative proposals that are constitutionally infirm. These do not go to the floor for a vote. Every major bill that is voted upon has been vetted in committee meetings and in majority conference in the Assembly and is open to debate on the floor.
Q. The mechanics of Albany have long created an incentive system for what Boss Tweed would have called “honest graft.” As part-time legislators, paid a decent salary for part-timers, perhaps, but a woefully inadequate income to maintain a decent lifestyle in downstate New York, politicians are forced to have outside employment to make ends meet. And nobody really thought Shelly Silver was filling out interrogatories at Weitz & Luxenberg. Is there any politically acceptable way to change these incentives, to make it unnecessary for elected officials to need outside employment to feed their families? If their only real coin is influence, what practical means is there to provide an incentive to stay above influence peddling as a way of survival in Albany?
A. This is a challenge that was one of the reasons for my Op-ed piece in the Times. A full time, professional legislature won’t be a panacea, but it will help to eliminate many of the obvious conflicts some of my colleagues have when they are either employed by special interests or by the law firms that are under retainer to special interests. While this is obvious to every citizen of good faith, it is apparently not so apparent to my colleagues who make a great deal of money from those special interests.
Q. Perhaps the dirtiest secret of legislative politics is member money, where the party leaders hand out funds to members to spend on constituent causes. On the one hand, these funds can be put to good use on the local level, where legislators are thought to be the best judges of efficacy. On the other hand, this emits the unpleasant odor of a slush fund to pay off supporters. And no matter how good the use to which these funds are put, they expose members of the Assembly to allegations of graft and corruption. Can this be ended? Should it be ended? If it is ended, would this spell the end of funding for deserving local causes that rely on member money by way of dedicated legislators for their survival? Without it, what alternative means exist for small, local causes to serve their communities? Is ending an opportunity for corruption also ending a vital opportunity to do good?
A. The public has a right to know how every taxpayer dollar is spent. In my Op-ed, I describe the absolute necessity of having a clear-cut schedule placed on the state’s website describing which legislator initiated a grant, the amount and purpose and the entity to which the grant was delivered.