Over the next few weeks, the State of New York has perhaps its best opportunity in a half-century to pass important criminal justice reforms that would bring more fairness to the system. But the reform effort in Albany could still fall apart because of forces arrayed against it — chief among them, prosecutors.
Gov. Andrew Cuomo has proposed reforms that would end cash bail, which needlessly sends poor people convicted of nothing to jail, and that would require prosecutors to share evidence with the defense early in a case, so defendants know what the state can prove as they weigh whether to choose a plea deal or a trial. Various legislators have offered their own reform bills. The last time New York lawmakers passed major procedural reforms to bail, discovery and speedy trial rules was the 1970s.
The District Attorneys Association of the State of New York, which represents 62 elected county district attorneys, opposes the proposals. The group’s president, David Soares, the district attorney in Albany, says the reforms would impose additional costs on the courts — an argument that can be made against any effort to strengthen due process, the bedrock of our judicial system.
Mr. Soares also says some district attorney offices can’t handle the additional work that would be required to turn over evidence early to the defense, even though early discovery is the rule, and runs smoothly, in many states.
New York laws on pretrial process are among the most retrograde in the nation. Prosecutors can withhold evidence until the morning of trial. To keep it that way, the district attorneys’ association has made the fear-mongering claim that early disclosure of evidence would enable defendants to intimidate witnesses and victims.
The prosecutors have enlisted the National Organization for Women, which has warned that sexual assault victims could be discouraged from going to the police. But groups that include crime victims say they helped write the bill and point out that it allows prosecutors to ask a judge for a protective order to withhold information identifying victims and witnesses, among other safeguards.
The objections raised by New York prosecutors and NOW also came up in Texas and North Carolina, both of which passed strong laws for sharing evidence. Dire predictions about what would result never came to pass.
In a study detailed in a 2016 law review article, 91 percent of prosecutors and 70 percent of defense lawyers in North Carolina reported that the disclosure law worked well. “You don’t want to create an unsafe situation for witnesses coming forward, especially in the neighborhoods that are most affected by crime, where you worry about people being afraid to report,” Benjamin David, the district attorney in Wilmington, N.C., told me. “There are still some things we want to keep from defendants, and we apply to the courts for protective orders in those cases. The system isn’t perfect, but it’s better. And I’m glad we got pushed to this point.”
Brooklyn is one place in New York where prosecutors turn over evidence early in most cases. Eric Gonzalez, the Brooklyn district attorney, separated himself from the statewide district attorneys’ group when I asked for his view, saying, “I agree with most of the provisions in the reform bills that are being considered in Albany.” He called on proponents and opponents to work out their differences.
Still, Brooklyn’s approach doesn’t go as far as the proposed changes, because prosecutors still have the leeway to hold back evidence. The governor and some lawmakers are rightly pushing to take that discretion out of prosecutors’ hands.
Bail reform is another battleground. Governor Cuomo’s proposal would eliminate cash bail and require the automatic release of people charged with misdemeanors (except for domestic violence or sex offenses), nonviolent felonies and a few violent felonies. Those detained without bail would get a hearing within three days of their arrest, at which a prosecutor can argue for detention by showing the defendant poses a high risk of flight or a threat to someone.
Despite those safeguards, prosecutors are again making exaggerated threats about risk. Mr. Soares even said that people facing drug charges should be held on bail because otherwise “nobody will go to drug court.” But coercing people is not why we put people in jail.
On the other side, community organizing groups like Vocal-N. Y. and public defenders argue that the pool of people who could be detained would be too large under the governor’s proposal because bail could be required for some misdemeanors. And there’s room to tighten the bill to ensure that detention really is the exception.
But as the Vera Institute of Justice pointed out in supporting Mr. Cuomo’s proposal, ending cash bail — an abusive and exploitative trap for poor people — is a “momentous step forward.” The institute estimates that in upstate counties where detention on minor charges remains the norm, that rate could decline by as much as 50 percent.
“The governor’s proposal shifts the purpose of pretrial detention from whether there’s some chance you’ll fail to appear in court to the much more justifiable reason for depriving someone of their freedom — if they are charged with a serious offense and their release would actually pose an identifiable risk to another person’s safety,” said Insha Rahman, Vera’s bail expert.
Mr. Cuomo’s reform package has one more element: tighter rules for ensuring a speedy trial. There is broad support for reform in the legislature, though disagreement over some of the details. The package adds up to a huge opportunity for New York to make its courts fairer and to lift a burden from people who are presumed to be innocent. It’s a chance not to be missed.
Emily Bazelon, a fellow in creative writing and law at Yale Law School, is the author of the forthcoming book, “Charged,” about the movement to end mass incarceration.
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