With Gov. Andrew Cuomo on board, the Democratic-controlled state legislature last week passed a package of criminal-justice reforms so sweeping that it was featured by the American Bar Association in its daily news report.
Lori Cohen, president of the New York State Association of Criminal Defense Lawyers, hailed the “historic” measure, asserting that it “will ensure that all New Yorkers will have a fair, balanced criminal justice system.” Senate Minority Leader John Flanagan, R-Suffolk, saw it very differently, however, accusing Democrats of focusing “all their energy on delivering for criminals and illegal immigrants, and appeasing the radical, socialist fringe that now controls their party.”
In reality, the legislation is a mixed bag, with some of its provisions not only commendable but overdue, and others ranging from ill-advised to disgraceful.
While wrongful convictions are inevitable in a system populated by human beings, each and every one of them is a tragedy regardless of the severity of the crime. Where they happen in capital cases, however, the consequences to the defendant can be deadly. And yet, according to statistics compiled by the Death Penalty Information Center, 165 individuals who were sentenced to death have been subsequently exonerated based on evidence of their actual innocence. These documented instances of gross injustice make it virtually certain that some innocent people have, in fact, been executed. While New York no longer has a death penalty, the need for governments at both the state and federal level to develop more effective safeguards against wrongful convictions generally is thus both obvious and urgent.
The new legislation takes a major step in that direction by requiring prosecutors to automatically turn over to the defense, within 15 days of arraignment, wide-ranging discovery data including the names and statements of witnesses, grand jury testimony and police reports. The new rules also impose certain reciprocal disclosure responsibilities on the defense.Defendants will also have the right to examine the information provided by prosecutors before deciding whether to accept a plea offer. The importance of the latter is illustrated by a 2015 report by Brandon L. Garrett, a professor of law at the University of Virginia, which found that half of the death-row inmates exonerated by DNA evidence had falsely confessed to the crime in question.
Just last month, in Houston, Texas, Harris County District Attorney Kim Ogg announced the actual innocence of Alfred Dewayne Brown, who had spent 10 years on death row in connection with the 2003 murder of a police officer and cashier. Prosecutors had phone records corroborating Brown’s alibi but never turned them over to the defense.
New York’s new discovery rules are fair, reasonable and necessary. By facilitating enhanced credibility in the fact-finding process and more informed plea-bargaining decisions, they promote the true administration of justice to which the system aspires.
The same cannot be said for two other provisions in the state’s new legislation. The first, eliminating cash bail for most misdemeanor and nonviolent felony cases, is a huge mistake. To be sure, there are inequities in the cash bail system. For instance, while posting $500 bail may be duck soup for some defendants, posting a mere $50 may be difficult to impossible for others. Similarly, the risk of losing $500 may provide less incentive for some to make future court appearances — the sole purpose of bail — than losing $50 would provide for others.
Reasons for bail
While this may a reason for judges to set bail more judiciously, it’s not a reason to eliminate cash bail where there are solid reasons to require it. These include a defendant’s lack of roots in the community, a significant criminal record, and a prior history of nonappearances and resultant warrants.
Two years ago, it was revealed that there were a staggering 700,000 warrants outstanding for people who had failed to appear in court.
The oft-heard argument that cash bail causes a disproportionate number of black and Hispanic defendants to be detained is a red herring. Absent evidence that these groups are being intentionally targeted for disparate treatment — and there is none — the argument is an appeal to a political base, not to reason.
A third provision in the legislation reduces the maximum jail time for a misdemeanor from one year to 364 days. The one-day reduction is explicitly intended to shield unauthorized immigrants from the possibility of deportation that would otherwise arise under federal law. This is the latest and, by far, the most disgraceful governmental action to aid and abet those whose very presence in the United States is itself criminal.
For the state will now shield them from the consequences of additional crimes committed by them against the communities they criminally invaded.
While the legislature did a good job in addressing issues relating to a defendant’s guilt or innocence, it did a lousy job in adding other provisions that reek of partisan politics.
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