New York’s Legislature returns to work today, with one urgent priority: Fix the botched criminal-justice “reforms” it passed last year. And get the job done before this bad law gets any innocent people killed.
Only defense attorneys and their allied advocates had any role in designing these changes. The Democratic majorities in the Assembly and Senate took no testimony from police or prosecutors and refused meetings. Even established reformers such as Albany DA David Soares were left out.
The NYPD, which has accomplished a miracle in making New York the safest big city in America, all while cutting arrests in half under Mayor Bill de Blasio, was not consulted.
We urged the Legislature to start making fixes last year, even if it meant coming back for a special session; no dice. Now the changes have kicked in and public anger is starting to build — although most of New York still doesn’t realize how bad the “reforms” are.
One huge problem: The new law prevents judges from ordering most criminal suspects jailed, or even requiring them to post bail, no matter how clear a threat to public safety they pose. Judges retain discretion only if the charges include a handful of very violent crimes and they deem the suspect a clear flight risk.
This guarantees a revolving door for serious perps: Caught for a minor holdup, you’ll be charged and released — and can do it again, get caught again and be released again, time after time after time.
Tiffany Harris, for instance, allegedly hit a group of Orthodox women while yelling, “F U, Jews.” She was let go, and the next day allegedly hit someone else. She was let go again. Harris has been arrested at least a dozen times, but would be walking free now if de Blasio hadn’t intervened to demand a psych evaluation.
As bad or worse, the law also completely rewrote the rules for pretrial discovery, the process whereby prosecutors let the defense know what evidence they have. Now the prosecution must hand over everything within 15 days of filing charges.
“Everything” breaks down into at least two major outrages:
- Defense lawyers are to be given complete information on all witnesses, 911 callers and even victims — info they will then hand over to their clients. In other words, all accused perps will know who might testify against them and where they live, long before any trial or plea bargain. And most of those accused will be walking the streets, because the judge doesn’t have the power to jail them.This will lead to witness intimidation, physical intimidation. And many potential witnesses are sure to stay quiet rather than put their safety — and their loved ones — at risk. Even crime victims will stay silent.
- The amount of information that prosecutors must hand over is ridiculously vast. It’s not just law-enforcers’ notes from interviews, or even the forensic evidence developed in crime labs: They have to share the work history of every tech who has processed the evidence and the specs of the lab equipment, including maintenance records and so on.The volume of disclosure is so large that the Manhattan District Attorney’s Office had to hold off on filing charges against an accused drunken driver who killed someone because the DA couldn’t meet the new law’s demands. That leaves the suspect free — he is even still allowed to drive.
If the most highly resourced county prosecutor in the nation is handcuffed so badly, imagine the challenges for the Bronx DA — or the Buffalo one.
In fact, most crime labs across New York can’t possibly handle the amount of work that the new law requires. Setting aside the vast new paperwork requirements, they’ve typically taken months to process most evidence — and often never get it done because the prosecution and defense have cut a deal long before the work needed to be finished.
Now defense lawyers can demand all the evidence up front — and if they don’t get it, the case can collapse because their clients have been denied a speedy trial. And they can milk even the smallest issue, like a lapsed license for some minor technician who worked on evidence that might never have been needed.
NYPD Commissioner Dermot Shea is entirely right to call these new discovery rules a “criminal’s bill of rights.” They guarantee that hardened repeat offenders will avoid prison even when they’re caught red-handed.
“Changing the system is complicated,” Gov. Andrew Cuomo noted the other day as he warned that fixing these “reforms” could take time. But lawmakers ignored legions of complications for the criminal-justice system when they passed this mess into law. They have a clear duty to act quickly now.
The cleanest, fastest solution would be to suspend all the new rules on bail, remand and discovery for six months, while the Legislature does what it should have done in the first place — engage in extended dialogue with police and prosecutors, who are dedicated to keeping the public safe.
Failing that, lawmakers need to rapidly:
- Give judges discretion to consider public safety, no matter what the charges, in deciding whether a suspect needs to be jailed pending trial. Forty-seven states give judges that authority — including New Jersey, which also eliminated most cash bail.
- Reverse the presumption on rapid disclosure of victim and witness information. Their names and identifying information should be redacted until defense attorneys make the case for why they need to know at the start of the process, rather than in the weeks leading up to trial.
- Slash the rest of the new discovery requirements to a level that crime labs and prosecutors can manage in a timely manner. Don’t let defense attorneys game the system by gumming up the works until the prosecution gives in.
Right now, the same lawmakers who rushed these changes into law are looking to see how little they can get away with when it comes to fixing the “reforms.”
Since the first outrages to make big headlines involved the recent wave of anti-Semitic violence, they’ll offer a special “carveout” from the new rules when it comes to hate crimes. But that’s not enough — especially since it can take weeks of investigation to show that an act of violence qualifies as a hate crime.
A hate-crime exception would only be a band-aid for legislators looking to avoid political pressure — until the next outrage reveals the reform law’s other failings.
Minor tweaks aren’t remotely enough here. Every aspect of the new law needs examination, this time with the full input of the state’s DAs, the NYPD and other law-enforcement agencies.
Cuomo and the Legislature broke New York’s criminal-justice system. They’ve got to restore the balance — fast.