Chief Judge Wilson, Restorative Justice, and Keeping Your Cool on New York's Streets

By Emily Furman

Remember Dustin Hoffman's iconic "I'm walkin' here!"?

It's a phrase on the tongue of every New Yorker, but a recent New York State court decision has given street hollers a new level of seriousness. In 2017, Mr. Fabian Greene was convicted of one count of fourth degree larceny and two counts of first degree perjury, landing him a four-to-eight year sentence.

His crime? Running away with a stranger's phone during a biker-and-jaywalker screaming match gone wrong.

Greene is now serving a lengthy sentence for snatching a phone, during an argument, that was returned to its owner within thirty minutes. 

In a recent concurring opinion from the New York State Court of Appeals, Chief Judge Rowan D. Wilson discusses the implications of the conviction and sentence of Mr. Greene to highlight how the New York State Unified Court System perpetually fails to address low level offenses cases. Judge Wilson demonstrates how sentences like Mr. Greene’s are symptomatic of a court system that over-incarcerates people with mental health struggles. New York State’s approach, incarcerating people who commit low level offenses, not only needlessly costs taxpayers millions of dollars, but also perpetuates the cyclical criminalization and destabilization of underprivileged communities. In an unusual expression of dissatisfaction with the options available in criminal court, Judge Wilson argues that a restorative justice approach should have been pursued instead.

The charges against Mr. Greene stem back to events of April 26, 2017, when complainant Jayne Chu and her boyfriend Benjamin Olschner were walking home after a date in Manhattan. To avoid walking in front of a funeral home, which Ms. Chu believed was bad luck, the couple left the sidewalk and stepped into the street.

It was on the road that the tipsy pair first encountered Fabian Greene. Mr. Greene, who was riding his bicycle down the wrong way of the street, swerved to avoid hitting Ms. Chu and Mr. Olschner, and angrily yelled at them that they were "in the fucking way." Ms. Chu responded "something not very nice back,” initiating an argument between her and Mr. Greene.

The argument escalated as they continued to exchange heated words for about five minutes. 

During the altercation, Mr. Greene identified himself multiple times as Fabian Greene, also referring to himself as "the King of Chinatown." In the heat of the moment, Ms. Chu threatened to call the police and attempted to do so with her phone, prompting Mr. Greene to grab Ms. Chu’s phone, hop on his bike and ride off, leaving his own bag behind.

Ms. Chu and Mr. Olschner quickly located Greene's public profile on Facebook using the name he had provided, and tracked Ms. Chu's device using Mr. Olschner's phone. Less than 30 minutes later, police found Mr. Greene with the stolen phone at a nearby internet café, where he was promptly arrested. 

Following his arrest, Mr. Greene was held in deplorable conditions on Rikers Island for 13 months before his trial. A jury ultimately convicted him of fourth degree larceny for taking Ms. Chu's phone and two counts of first degree perjury related to his grand jury testimony. As a result, Mr. Greene was sentenced to four to eight years in state prison.

In his concurring opinion, Judge Wilson contends that the outcome in this case underscores how the criminal justice system fails to accommodate offenders suffering from mental health issues. As Judge Wilson writes, “Mr. Greene's case illustrates a fundamental problem with the way in which minor antisocial behavior results in a wholly disproportionate result.” Mr. Greene was in dire need of mental health services, but rather than get help, he was sent to Rikers and then state prison.

Judge Wilson’s opinion highlights the problem with this outcome, explaining that prison mental health resources are often severely inadequate and more costly than community-based treatment. Judge Wilson wrote: “Instead of providing a path to [mental health] services, the criminal justice system ordered Greene incarcerated for at least four years, at an approximate cost to taxpayers of nearly a half million dollars—closer to a million should he serve the full eight-year term.”

Prison is particularly harsh for people with mental health issues as they are at greater risk of solitary confinement in prison, extended incarceration, and are more likely to experience abuse while serving time. The cycle of incarceration targets and destabilizes people suffering with mental illness and increases their likelihood of recidivism. Advocates have long called for changes to how the criminal justice system treats people with mental illness, most recently pushing for the Treatment Not Jails act to provide treatment for people like Mr. Greene instead of incarceration.

Beyond treatment, other options could have been used in this case. Locking people up over petty crimes does not provide any sense of resolution or justice to the victim nor create a channel for input from the parties or larger communities involved on how best to settle the dispute.

At trial, Ms. Chu lamented not walking away from the argument and regretted not doing so. Mr. Greene also testified that, in hindsight, he should have given up on asserting who was in the right.

Judge Wilson noted the disparity between the desires of the parties concerned and the actions of the court: 

Our justice system should not be incapable of asking Ms. Chu whether she would prefer directing Mr. Greene to mental health resources instead of a lengthy prison stay, or incapable of making the decision that regardless of what the law allows by way of incarceration, Mr. Greene and the broader community would be better served by treatment rather than incarceration.

Neither side imagined this minor dispute would lead them to court and keep Mr. Greene locked away for years.

As an alternative to Mr. Greene’s lengthy imprisonment, Judge Wilson asserts that “restorative justice” should have been pursued. Restorative justice is a non-punitive approach focused on repairing harm from crime or conflict through inclusive processes involving victims, offenders, and the community. It aims for accountability, healing, and reconciliation by fostering dialogue and understanding, aiming to prevent future offenses by addressing root causes of harm. As Drs. Ahnihorti and Veach explained, this model “shifts the focus from the relationship between the State and the accused to the human relationships impacted by the crime.”  

Ms. Chu clearly stated that she wished the criminal justice system had not become involved. When asked why she didn’t walk away, she testified that she “didn’t walk away because [she] felt like [Mr. Greene] wasn’t giving [her] the validation to hear what [she] wanted to say.” At the core of the matter were two people who fundamentally wanted to be listened to and understood. 

A restorative justice approach could have avoided the prolonged prosecution, which placed burdens on parties, taxpayers, and the courts. It could also have provided an opportunity for each person to express their frustrations through constructive dialogue, allowing for reconciliation rather than perpetuating an adversarial confrontation, while simultaneously offering Mr. Greene mental health support within a community-based, non-carceral setting. 

Judge Wilson’s opinion powerfully demonstrates why restorative justice approaches should replace the status-quo of New York courts sentencing individuals to prison sentences that are costly, unproductive, and harmful to communities at large. As Judge Wilson wrote, “the Unified Court System has taken baby steps in that direction, but Mr. Greene's case powerfully illustrates how much more could be done.” 

Until the courts implement such reforms, just remember – stay out of the bike lane!