November Election Could Have Big Consequences For Criminal Justice Reform In New York

A protester holds a picture Kalief Browder, who spent three of his late teen years imprisoned on Rikers Island waiting to be tried for a petty robbery charge that was ultimately dismissed.

From now until Election Day, The Brian Lehrer Show is hosting a series called “30 Issues in 30 Days.” The idea is to dive deep on one issue a day to give voters a sense of what candidates are saying about the policies that affect their lives. The next issue up: New York's long awaited criminal justice reform.

Criminal justice reformers had high hopes in January when Governor Andrew Cuomo announced a package of reforms that included doing away with cash bail for misdemeanors and nonviolent felonies, changing the state’s discovery statute and guaranteeing the right to a speedy trial. "This year," Cuomo declared, "we bring more perfect justice to New York."

But with the Republican majority in the State Senate more sympathetic to police unions and prosecutors, and less interested in criminal justice, the legislative year came and ended without any reforms being passed.

How does this figure into the November election?

Not since the 1970s—with a brief interregnum in 2009 and 2010—have Democrats held a majority in the State Senate. They are currently *this* close, with an actual numerical majority spoiled by a renegade Democrat, Brooklyn’s Simcha Felder, who caucuses with the Republicans, giving the GOP a functional majority. Political analysts have identified about ten competitive districts where the Republican status-quo may be upended in November, and Democratic Majority Leader Andrea Stewart-Cousins promises that if a blue wave crashes over the Capitol building, she’ll work to bring the three key criminal justice issues to the floor, and up for a vote. Here they are in a bit more detail:

Bail Reform: Introduced by Senate Democratic Deputy Leader Michael Gianaris, the bill, supported by Stewart-Cousins, would eliminate cash bail for misdemeanors and non-violent felonies. Defendants would either be released on their own recognizance or under non-monetary conditions, like checking in regularly with a pretrial services agency (supervised release), travel restrictions, or wearing an ankle monitor.

The Case For: Proponents for reform say bail unfairly punishes poor people. “Right now, approximately 16,000 people who have not been convicted of any crime are stuck in jails across the state, the vast majority because they cannot afford the bail amount sought by prosecutors and set by judges,” Jared Chausow, Senior Policy Specialist for Brooklyn Defender Services, told WNYC. “This practice distorts our legal system and destroys lives by forcing people to plead guilty just to go home, disproportionately impacting Black and Latinx people in poverty. We need meaningful bail reform so that people can remain in their homes, communities, and jobs while they fight the charges against them.”

The Case Against: The bill’s opponents argue that letting too many defendants out on their own recognizance could lead to a public safety issue. Scott McNamara, the D.A. for Oneida County and former president of the District Attorneys Association of the State of New York, agrees the state’s bail system is flawed, but says he’s seen firsthand what happens when someone is let out jail when it threatens the community: “I’m on the front lines, having to deal with witnesses who feel unsafe or threatened.”

Discovery: New York is one of only 10 states where prosecutors are permitted to withhold crucial evidence (i.e. witness statements, police complaint reports, detective follow-up investigation, and witness names) until after the jury is sworn and just before the prosecutor makes his opening statement. One proposed bill would ensure automatic, comprehensive discovery before plea deals are made, so defendants have all the information they need to prepare their case.

The Case For: Not allowing defendants access to key evidence can lead to the accused preemptively taking a plea deal because they don’t know what kind of case is being built against them. “It places an accused at a great disadvantage when preparing their defense for trial,” State Senator Jamaal Bailey, author of the discovery reform bill, told WNYC. “Although [New York’s discovery statute] has resulted in countless wrongful convictions at great state expense resulting from payouts to those wrongfully convicted, the human toll has been devastating on black and brown communities.”

The Case Against: Ever since the 1970s, when reform-minded activists started looking into New York’s pre-trial discovery laws, there has been strong opposition coming from District Attorneys. They insist that altering the state’s discovery laws would threaten the safety of witnesses. DA McNamara says we’re already at a point where information is too public: “We already are dealing with intimidation and threats at a level never seen before because of social media and the ability to publish information and threats instantly over the internet.” Reforming discovery laws would make it worse: “Turning over our civilian witnesses’ statements, names, addresses and telephone numbers 30 days after arrest will prevent us from bringing to justice many of the most violent people victimizing our communities."

Speedy Trial: Another bill known as Kalief’s law (after Kalief Browder, who spent more than 700 days in solitary confinement awaiting trial before ultimately committing suicide after his release) would guarantee that criminal cases go to trial in a reasonable time frame.

The Case For: New York is the only state in the country that does not actually have a speedy trial framework that accounts for when a case is tried. Instead, prosecutors use a "ready rule" framework that only requires prosecutors to announce that they are “ready” for trial within certain time frames, and which prosecutors are able to easily manipulate. Senator Bailey, author of the bill, notes that in the Bronx, where Browder was arrested, the median length of a case from arrest to disposition was 517 days, and more than 70 percent of felony cases surpassed New York's "speedy trials" guidelines.

The Case Against: Former Bronx prosecutors point out that these tactics are legal, and “argue they are an unavoidable consequence of enormous caseloads and a system that invites such conduct,” according to The Appeal. Scott McNamara also argues that the proposed legislation “requires the defense to be ready for trial in order for the prosecution to be ready,” and that “prosecutors should not be required to be accountable for people we cannot control.”

What other reforms do criminal justice proponents hope for? If the Democrats take the Senate, activists and public defenders plan to push for greater reforms. Jared Chausow, Senior Policy Specialist for Brooklyn Defender Services names a few: “We will also be fighting for sentencing and parole reform, legislation to end long-term solitary confinement in line with United Nations standards, marijuana legalization that repairs the harms of prohibition, record expungement, a bill to help protect immigrants from deportation for misdemeanors, and eliminating court fees and surcharges for low-income people.”

For more, listen to Brian Lehrer's segment on criminal justice reform here: