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Left, right switch sides when it comes to trusting judges

A view of the New York State Capitol

A view of the New York State Capitol Building in Albany on June 22, 2019. Credit: Getty Images/wellesenterprises

ALBANY — When the criminal justice issue of the day in Albany was the Rockefeller-era drug laws and harsh mandatory sentences, the political left was telling the right: You went too far. You handcuffed judges. You're not letting judges do their job and make decisions.

Sixteen years later, the same arguments are filling the State Capitol halls. Only this time, left and right have switched sides about how they feel about judges.

These days, it's Republicans telling Democrats: You went too far. You handcuffed judges. 

The Republicans are talking about New York's new law prohibiting bail from being required for suspects accused of most misdemeanors and nonviolent felonies.

The echoes of past debates about judicial discretion aren't lost on some.

The side with power likes to limit discretion. The side that's out of power likes to increase it.

“Discretion or lack thereof is a familiar theme in criminal justice procedure,” said Paul Shechtman, who was Republican Gov. George Pataki’s criminal justice director when the rollback of Rockefeller drug laws was debated. “At bottom, the concern usually is one actor gains power and one loses it.”

Signed by Republican Gov. Nelson Rockefeller in 1973, the drug laws that carried his name called for mandatory sentences of 15 years to life for selling or possessing even small quantities of certain drugs.

The laws were rolled back in a series of steps beginning in 2004 during Pataki's last term.

Democrats had argued that judges should have the power to look at a drug case and decide the person before them was a low-level actor who would be better off in rehab or with a short sentence.

Now, bail is the highest profile criminal issue at the Capitol. Gov. Andrew M. Cuomo and the Democratic-led legislature enacted the bail changes last year; they took effect Jan. 1.

Less than a month later, Republicans are saying the state needs to restore judicial discretion. Some Democrats are saying they don’t trust discretion.

Discretion isn’t a central issue, but just a tool for debate, one analyst said.

“People don’t go to war over judicial restraint or judicial discretion,” said Vincent Bonventre, an Albany Law School professor who has studied state courts extensively. They go to political war, he said, over issues such as crime, guns, abortion and campaign finance.

Politicians and advocates typically favor discretion, “when it gets them the result they want,” Bonventre said.

“I’ve been around this place a long time and I’ve seen how issues can flip,” said Assembly Minority Leader Will Barclay (R-Pulaski), an 18-year veteran of the legislature. He supported softening of the drug sentencing laws and says he trusts judges.

“It used to be: We can’t pass laws, top-down, without giving discretion to judges,” Barclay said. “Lo and behold, we’re doing it now.”

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