State prosecutors averse to a package of criminal justice reforms that could be announced next week said on Friday the legislation being proposed would require a significant funding increase from the state for criminal courts and district attorneys.
The District Attorneys Association of the State of New York said the package of bills under consideration by the Legislature has the potential to slow down court proceedings—not speed them up—which may add to the evergreen problem of backlog.
Albany County District Attorney David Soares, a Democrat who is the current president of DAASNY, asked lawmakers to consider the experience of the state’s district attorneys before they vote to change laws on criminal discovery, cash bail, and speedy trial.
“Right now, I think people assume that we just want to say ‘no’ and that’s just not the case,” Soares said. “We want to achieve the spirit of the legislative proposals, but we want to make sure it’s done responsibly, not at the expense of victims, and we want to make sure we do it in a way that will be long-lasting.”
That’s not unlike the position of State Sen. Jamaal Bailey, D-Bronx, who chairs the Codes Committee. Bailey said he met with a handful of district attorneys earlier this week to talk about the reforms, but that he would be willing to continue conversations on their concerns to see if they could be considered by his colleagues.
“We just want to make sure that if you’re saying it’s not sufficient, let us know what would be sufficient so we can have a conversation,” Bailey said. “I have no problem discussing this with any member of [DAASNY], from President Soares on up.”
DAASNY is not opposed to reforming the state’s criminal justice laws, Soares said, but it does not support the legislation currently on the table.
His comments came as state lawmakers negotiate what’s expected to be the first major criminal justice reforms to pass in New York in several years after Democrats took control of both houses of the Legislature in January.
Those reforms would address the state’s laws on criminal discovery, cash bail, and a defendant’s right to a speedy trial. As of Friday afternoon, lawmakers had not introduced an agreed-upon bill on the latter two issues, with the hang-up largely centering around bail reform.
It’s unclear what a final bill on changing the state’s bail system will look like. Democrats in the State Senate introduced a bill last year that would have eliminated cash bail altogether, but the measure was blocked by Republicans, who controlled the chamber. Democrats in the Assembly had proposed a bill that kept cash bail for certain serious or violent offenses in an effort to convince Republicans to support the measure. They did not.
Assembly Speaker Carl Heastie, D-Bronx, said last week he supported eliminating cash bail completely, a position also shared by Gov. Andrew Cuomo. That would allow most defendants to be released after their arraignment unless they are accused of a violent or serious crime.
Soares said DAASNY isn’t necessarily opposed to ending cash bail, but that a certain subset of crimes that would trigger automatic release under the current proposal should, instead, allow for pretrial detention.
“What we’re looking for are carve-outs. We’re not saying presumptive detention,” Soares said. “We’re actually saying presumptive release on 85 percent [of low-level offenses], but we want rebuttable presumptions on the 15 [percent] that we believe should be carved out.”
Among the crimes identified by DAASNY as eligible for automatic release under the proposal were criminal possession of a weapon on school grounds, identity theft in the first degree, and others. Soares said judges should have discretion to allow pretrial detention for those crimes as a matter of public safety.
But there are also instances where cash bail makes sense, Soares said. Consider someone who traveled to a county in upstate New York from Canada and committed a crime that would have previously been considered bailable. Prosecutors fear the individual may not return from Canada for a court appearance if there’s no incentive.
Then there’s the proposed reform on the state’s laws on speedy trial, which advocates have said don’t do enough to prevent the accused from spending months, or years, in prison before trial. The problem is mostly isolated in New York City courts, where attorneys have sometimes been known to tell a court they’re ready for trial, then go back and say they’re not ready, which effectively delays the trial date.
Proposed legislation would provide more accountability by the court over a prosecutor’s statement of readiness and a different method to tighten deadlines for a speedy trial. It would also allow a hearing on a prosecutor’s readiness, which Soares argued would delay proceedings rather than speed them up.
Instead, Soares said, the best way to move defendants through court faster would be to allow more judges in counties with significant backlogs.
“The frustration here is that they haven’t addressed anything in any of the proposals I’ve seen to increase the number of judges in those counties that are experiencing the most congestion,” Soares said.
Bailey said the details on both speedy trial and bail reform are still being discussed among Democrats in the Legislature, and that he would be willing to talk to New York Chief Judge Janet DiFiore and Administrative Judge Lawrence Marks about the number of judges in counties with persistent backlog issues.
“We are conferencing everything. We’re going to conference everything and have discussions with the entire conference on what they feel is reasonable,” Bailey said. “I think it’s really important that we make sure we inform our members about what’s in the bill and what’s not in the bill.”
Adding more judges to the state’s courts would require Cuomo and lawmakers to invest more funding for those positions in the state budget, which is due in March. Soares said the same would be true for stricter deadlines on criminal discovery, or the exchange of material to be used at trial between prosecutors and the defense.
A bill sponsored by Bailey and Assemblyman Joseph Lentol, D-Brooklyn, would require prosecutors to provide the first phase of discovery within 15 days after an arraignment. That kind of deadline doesn’t currently exist in state law, which has allowed some prosecutors to withhold evidence until close to trial.
Soares said the proposal wouldn’t be doable for many counties in the state. He suggested that lawmakers at least double that deadline to give prosecutors more time.
“I think to get a robust first phase of disclosure, 30 days would be appropriate or 45 days would be appropriate,” Soares said.
Bailey defended the 15-day deadline, which he said would give defendants more information sooner to make an informed decision on how to prepare their case or whether they want to agree to a plea deal.
“I am not anti-district attorney, or anything that they’re doing. I just want fairness,” Bailey said. “I don’t want an advantage for anyone and I feel like because the accused is unable to prepare an adequate defense, these timetables are reasonable.”
Soares said imposing shorter deadlines would require more staff, and consequently more funding, for local district attorneys and local courts. He said the Legislature could alleviate some of their concerns by providing those funds, but that challenges would still exist from a major overhaul of their day-to-day operations.
“If you want to do this, go ahead and do it, pass the legislation and if it’s coming with a check to all the counties to implement what you envision, well that’s a different conversation because you’re eliminating some of our process challenges,” Soares said. “They’re not thinking through all these issues and challenges. By doing so, you’re setting yourself up to fail, and failure is going to come at a very expensive cost.”