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Image Credit: AP

NYPD Commissioner-Turned-Felon Has a Message For Us Now That He's Been to Prison

As the top cop who landed behind bars, he's arguably one of New York's most controversial figures. Bernard Kerik, 58, served as the police commissioner of New York City under former Mayor Rudolph Giuliani. In 2010, after years of litigation, he was convicted of tax fraud and false statements and was sentenced to four years in federal prison. Today, he is a convicted felon.

On a recent bright morning in a Manhattan skyscraper office, Kerik leaned his head against the glass window and stared down at the two distinct square plots where the Twin Towers once stood. He was there when those towers fell. He lost many of his men that day and saw unimaginable things — people jumping out of the burning buildings, some holding each other as they went.

That was then. That was when he headed up 55,000 personnel and a $3.2 billion budget. That was before Giuliani recommended him to Bush, before the thorough vetting process uncovered a questionable past. 

He turned around and said, "I've never seen this view before." There was a palpable sadness in his voice.

He's been called a hero and a leader, a liar and a crook. But praise or condemn him, it's hard to argue that he doesn't have a damned interesting story. He said that throughout his career, he thought he understood the criminal justice system. But it wasn't until the tough "lock 'em up" cop with the Tony Soprano-like swagger was suited up in prison uniform, mopping floors and living in a small room with three other men that he realized: He knew "nothing," he said, until he was on the other side of the bars.

Image Credit: Bernard Kerik 

He was one of 2.4 million prisoners in the United States. Because of mass incarceration, the country now accounts for 25% of the world’s imprisoned despite making up, overall, just 5% of the world's population. According to Michelle Alexander's book The New Jim Crow (which is also the source for much of the data that follows), in the U.S., one in every 108 adults was in prison or jail in 2012 and 1 in 28 children has a parent behind bars. Currently, 65 million Americans have a criminal record — that is greater than the total populations of England and Wales combined. 

The numbers are staggering and reflect a deeply troubled system. Kerik has some insights about how to begin fixing it.

*** 

He was born in Newark, N.J. to a father who left him and a mother who was an alcoholic and prostitute. She abandoned him when he was 3 years old, leaving him with her pimp's mother before Kerik's father, also an alcoholic, regained custody. His mother was murdered when Kerik was 9 years old. He dropped out of high school at 16.

In short, he joined the army, earned his degree and, after rising from warden to narcotics detective to commissioner of correction, he landed the position of police commissioner, the highest position in New York City law enforcement, responsible for the world's largest local force. He was appointed in 2000 and served for 16 months. It wasn't long before the abandoned child and high school dropout had the White House on the phone making him an offer.

His life had been a series of unlikely moves, exceptions to the rule. But improbability turned out to be both his blessing and his undoing: Just as swiftly as he'd climbed to the top, he crashed down.  

In 2004, then-President George W. Bush nominated him to be the director of the Department of Homeland Security. About 10 days later, after news reports surfaced that Kerik hadn't paid required taxes for his family's nanny, he withdrew his nomination.

October, 2003. Image Credit: AP

In 2005, state authorities accused him of receiving a below-market price for the renovation of his co-op from construction company Interstate Industrial. Authorities alleged that the company's owners, brothers Frank and Peter DiTommaso, had motivations for city work and also had ties to the mafia. (Both brothers have since been acquitted.) Kerik pleaded guilty to two state misdemeanor ethics violations and paid $221,000 in fines.

It was only the beginning.

In 2007, the federal government indicted him with 16 charges of tax fraud and false statements. He pleaded guilty to eight. The remaining charges were "dismissed as part of a negotiated plea," he said. Needless to say, he never went to the White House. He ended up instead in a place where thousands of people before him were sent under his iron fist: prison.

He was sentenced in February 2010. (Currently he is suing his former attorney, Joseph Tacopina, seeking punitive damages for negligence and legal malpractice, among various charges.) Kerik served more than three years in a federal prison in Maryland and was released on probation in May 2013. He was restricted to house confinement until October and will remain on probation until October 2017.

At the time of his conviction, opinions ranged from disgust to admiration. The judge stated in a pretrial courtroom that Kerik had a "toxic combination of self-minded focus and arrogance." Meanwhile, Morning Joe host Joe Scarborough described Kerik as a "hero" who had "made some bad mistakes." (Kerik was credited with several accomplishments, including reducing violence at the city's notorious Rikers Island jail by 90%.)

Andrew Kreig, an attorney and investigative reporter who covered the 2010 court proceedings, wrote in a recent message that, "Judges and prosecutors treated [Kerik] ruthlessly. … I eye-witnessed the shocking unfairness directed against him."

But Kerik is moving forward, determined to use his experience to educate people and spark progress. During the interview, he discussed some of the criminal justice system's fundamental flaws.

Image Credit: AP

"The unfortunate thing is you take these young men and women, you lock them up for years under these Draconian sentencing guidelines, and then you let them back into society," he said. "Do you absolutely think that they're going to be better people? Because … if these are first-time offenders, and they've never been in the system, the only thing you've done for them is institutionalize them. The only thing you've taught them in reality is how to steal, cheat, lie, con, manipulate, gamble and fight."

There are more people behind bars today for a drug offense than there were in 1980 for all offenses combined. A first-time drug offense carries a sentence of 5-10 years, though the vast majority of those arrested are not charged with serious offenses. In 2005, for example, 4 out of 5 drug arrests were for possession, not sales.  

Kerik wanted to emphasize the collateral damage of a conviction. "There are probably 50,000 collateral consequences of your felony," he said. To be labeled a felon commonly means, among many things, ineligibility for food stamps and public housing, discrimination from private landlords, losing your vote and denial of a wide range of jobs. Kerik noted that becoming a garbage man or a barber is often not an option because it requires state licensing, off-limits for convicted felons.

On top of it, in many states, if an ex-offender on probation cannot get a job in a certain period of time, he or she can be sent back to prison. In 2000, about as many people were returned to prison just for parole violations as were admitted in 1980 for all reasons combined. They accounted for more than 35% of all prison admissions and of them, only one-third was returned for a new conviction. The rest were returned for a technical violation, such as missing a meeting with the parole officer.

When asked about collateral damage to the family, Kerik — who is married and has a son and two daughters — grew even more serious and emphatic. "By far … there are no words in my mind, there are no words, to express the damage, or quantify the damage, done to your children."

He was surprised to find that seemingly harmless and commonplace decisions, such as lying on a credit card application or about length of stay at a job, could both be classified as felonies. "We have lost sight of criminal intent," he said. "You have to have intended to commit a crime. In the federal system, criminal intent rarely exists."

So where does he draw the line? Who does deserve to be locked up?

"People that are a detriment to society, harmful to society, violent felons, bad people that do bad things, he said. "And listen, I put plenty of people in prison. Anybody that knows me … knows that I have put lots of people in prison, for long times." He does not regret a single arrest he made. 

He was also dismayed to learn about the incentives driving the legal players. A prosecutor is judged based on his or her success in winning a case, whereas a public defender is evaluated based on the number of cases he or she can get through. Eighty percent of defendants cannot afford a lawyer, and a public defender will routinely have a caseload of more than 100 clients at a time. More than 96% of convictions in the federal system result from guilty pleas rather than decisions by juries, a worrying figure. In Kerik's opinion, "Nobody is innocent until proven guilty. No one," he said. The defendant is automatically "convicted in the court of public opinion."

Kerik has been stabbed and shot at. He's missed a bomb by minutes. "I've had the World Trade fall down on me. I've been the subject of death threats," he said. "[But] there is nothing in my life that's been worse than this," referring to the entire process, from the allegations through serving the sentence.

He said that if fixing the system were up to him, he would start with three changes: re-thinking all mandatory minimum sentencing; minimizing collateral damage by allowing the opportunity to clear one's record and ending life sentences for white-collar offenses. One of the most frustrating challenges is that politicians agree but are too afraid to say it, he said. "I don't know many [Congressional leaders] I've talked to that haven't told me, 'You're absolutely right.'" But they are "scared to death" to voice their views, in fear they'd be criticized for being soft on crime.

Currently, Kerik is writing another book and advocating for national criminal justice reform by talking to government and community leaders, the general public and the media in an attempt to help educate people about the injustices of the system. Politically, there might be hope: It's actually one issue that players from both sides have agreed on, something that has turned Attorney General Eric Holder and Republican Senator Rand Paul into unexpected allies.

Kerik's mission is to "at least create the debate they need to make the change. … You can't fix something that you don't know is broken."

"I didn't know," he said. "I had experience and success. I still didn't know."

***

Kerik did not learn about his mother's murder until he was 18. He didn't even know how she died until he was police commissioner and writing his autobiography many years later. The homicide was never investigated; the murderer was never found. 

Kerik wrote in his 2001 book that her death gave him "a heightened sense of justice and duty, a deep need to protect people, an impatience with criminals." Perhaps all along he's been hunting for her killer. "Maybe what I've thought of as striving for a career and living a life of honor is actually just chasing the shadow of my own abandonment," he wrote. He used, mastered and enforced the very system that ultimately entrapped, entangled and destroyed him. 

He's always wanted to catch the bad guy, but he will never work as a cop again. His felony record means, he said, "a lifetime ban of not being able to do the only work I've ever known."

But he's on a new trajectory now. And if his past serves as any indication, he will surprise onlookers with yet another improbable move.

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