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Bail, discovery set to make profound changes in NY criminal justice

Inmates facing misdemeanor or non-felony charges at Nassau

Inmates facing misdemeanor or non-felony charges at Nassau County Jail in East Meadow will be eligible for release without posting cash bail when a new state law takes effect Jan.1. Credit: Ed Betz

ALBANY — New York State on New Year's Day will usher in one of the most significant changes to its criminal justice system in recent history: the elimination of cash bail for most misdemeanors and nonviolent crimes.

On the same day, a new law will require prosecutors to turn over discovery information to defendants within 15 days after an arraignment. The prosecution can be allowed another 30 days in some cases.

The two changes will affect tens of thousands of cases annually across the state and rank with the Rockefeller-era drug laws, the implementation and suspension of the death penalty, mandatory sentencing and a crackdown on parole as the most impactful criminal justice actions over the last few decades.

“It’s one of the biggest and most fundamental changes we’ve had in a long time,” said attorney Tucker Stanclift, chairman of the New York State Bar Association’s criminal justice section.

“As a practicing attorney, I think discovery will be the most significant change to the criminal justice system in 40 years,” said N. Scott Banks, attorney-in-charge of The Legal Aid Society of Nassau County, which represents defendants.

Many district attorneys, sheriffs and Republican lawmakers across the state say the changes will cause chaos and danger. They say it will jeopardize public safety by putting more accused criminals on the street. They’ve stepped up efforts to urge Gov. Andrew M. Cuomo and state lawmakers to delay the implementation or even revisit the new laws.

Senate Minority Leader John Flanagan, a state legislator for more than 30 years, agreed the criminal justice changes are among the most momentous in years — in a negative way.

“I think it’s going to be disastrous,” Flanagan (R-East Northport) said. “I think these are wrongheaded policies that are going to come back on us.”

“This is one of the most frightening public safety crises our state has faced in a long time," Assemb. David McDonough (R-Merrick) said in a statement.

But leaders of the Democrat-controlled State Legislature, which counts bail overhaul as one of its key victories in 2019, say there’s no chance of delay. Democrats say law enforcement is stoking fear and is resistant to changes in a criminal justice system that was tilted too far in its favor for too long.

And they point to New Jersey, which has had a noteworthy drop in prison population and few changes in crime rate or missed court dates after eliminating bail for many crimes, according to recent assessments.

“Absolutely not,” Senate Majority Leader Andrea Stewart-Cousins (D-Yonkers) said when asked whether legislators would consider delaying the bail and discovery changes.

“It’s not like this hasn’t happened elsewhere in the country,” Stewart-Cousins said. “And there hasn’t been chaos. There hasn’t been disaster. And, again, what we’re trying to do is make sure justice doesn’t depend on whether you can pay to get out of jail. If we make the system fairer, it will not make the system chaotic. It will make the system right.”

Defense attorneys said the bail change means no longer will defendants be pressured into accepting a plea bargain just to be released from jail; the discovery change means they can't be pressured into a deal without knowing the evidence against them.

 A political shift made possible the bail and discovery overhaul.

Democrats called for the measures for years but were always blocked by a Republican-controlled State Senate. But last fall, Democrats, capitalizing on President Donald Trump's unpopular status in New York, overwhelmed Republicans in state legislative elections and took firm control of the Senate.

Holding a 40-23 advantage in the Senate and a more than 2-1 advantage in the Assembly, Democrats this year approved a wide range of progressive measures, including bail. While Democrats have had the Assembly majority for decades, before this year the party had controlled the Senate for only two brief periods in the past six decades — in 1964 and in the 2009-10 election cycle.

Cuomo, a Democrat who also backed bail and discovery changes, approved the initiatives as part of a state budget enacted in March.

The new laws are having impact, even before they actually become effective.

Anyone currently being held on bail in a local jail will be eligible to be released Jan. 1 if that person is charged with a crime that wouldn’t be subject to bail under the new law.

The practical effect: More than 3,000 people statewide will be eligible for release. That includes about 400 on Long Island.

Counties around the state have started screening to determine who should be released and how to do it in an orderly way. Nassau County, for example, plans to set up a “family pickup” area in the parking lot of its jail in East Meadow for the 175 individuals it plans to release Dec. 31.

Fulton County Sheriff Richard Giardino, a former district attorney and county judge, said that without bail, he’ll have no power to retain someone arrested for burglary or compel a dealer into a drug court that can force him or her into treatment. The discovery law means sheriff’s staff will have to be reassigned to help organize and hand over evidence.

“You’re going to see cases getting dismissed for clerical errors,” Giardino said at recent State Capitol news conference.

Even a Syracuse judge lashed out at the law.

“It’s the most ridiculous piece of legislation I’ve ever seen in my life,” Onondaga County Court Judge Stephen Dougherty, a Democrat, said amid a felony trial Dec. 16, according to the Syracuse Post-Standard.

He said lawmakers were handcuffing judges’ ability to determine whether a defendant should be held on bail, based on a variety of criteria.

"We were elected to make those decisions,” Dougherty said.

The state District Attorneys’ Association and others had lobbied unsuccessfully to allow a judge to weigh a defendant’s “dangerousness” in deciding to hold someone on bail. Advocates argued that would lead trial judges, who must run for office, to hold almost all defendants on bail for fear of angering the electorate.

Proponents point to New Jersey, which began implementing new pretrial bail procedures in 2017. There, the state Administrative Office of the Courts has found the bail overhaul didn't result in an increase in missed court dates or crime. It said the overhaul created benefits, such as "defendants who pose little risk of committing another crime or fleeing from justice — but cannot afford bail — are no longer spending weeks and months in jail while presumed innocent."

Prosecutors and some Republican lawmakers, however, noted the New Jersey law gives judges more leeway to consider a defendant's risk to the community in considering bail. They point out the law there was approved several years before taking effect, allowing the legal system to prepare. In New York, legislators and Cuomo approved the bail and discovery changes as part of an omnibus state budget adopted in March after few public hearings.

"A close look at Jersey’s experience proves that New York has done things in a far more slipshod fashion," Orange County District Attorney David Hoovler, president of the New York State District Attorneys Association, wrote in a recent op-ed.

Democrats and criminal justice reform advocates say critics are “fearmongering.” Stewart-Cousins’ office noted a judge may impose bail on anyone charged with a violent felony or a sex offense, as well as repeat offenders who have failed to appear in court, intimidated a witness or violated an order of protection.

“The majority of cases aren’t murders. They’re small-town mischief. They’re misdemeanors,” Stanclift said. Referring to prosecutors, he added: “The sky is not falling.”

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