Funding Boost Engenders Cautious Optimism for NYC Prosecutors, Defenders Over Criminal Justice Reform
Prosecutors have said they're worried about maintaining victim and witness cooperation under the new discovery system, which allows defense attorneys to see more information than they could before, unless prosecutors seek a protective order.
December 23, 2019 at 01:33 PM
6 minute read
People on all sides of New York City's criminal justice system are racing to prepare for New Year's Day, when laws changing discovery, pretrial release and speedy trial restrictions will take effect around the state.
Critics have pointed out that the laws, passed in April, mandated a rapid transition and did not include funding. But the transition process is expected to be somewhat easier in the city, where the de Blasio administration is distributing millions of dollars to help implement the changes.
City officials and activists have also been working for years to reduce the jail population and develop alternatives to incarceration—alternatives that are expected to be in much higher demand when the bail reform laws take effect and require the pretrial release of thousands of people. Starting Jan. 1, the use of cash bail will be limited to violent felony charges and a short list of other circumstances, and people charged with many less severe offenses will avoid arrest altogether through the increased use of desk appearance tickets.
"The past six years have seen a fundamental reshaping of the criminal justice system," said Liz Glazer, director of the Mayor's Office of Criminal Justice. "We just don't arrest as much, we don't put as many people in jail."
The city's overall jail population has been falling for years, and Glazer said the new laws will only accelerate those changes. Her office expects that by 2026, the jail population will have fallen to 3,300—a decrease of more than 8,000 from its 2013 level. Meanwhile, the bail reform laws are expected to increase demand for supervised release threefold or fourfold, Glazer said.
In the Bronx, Brooklyn and, to some extent, Manhattan, the transition is expected to be fairly straightforward because diversion and the reduced use of cash bail have been a focus for years, according to several people working in those boroughs.
Scott Levy, chief policy counsel for The Bronx Defenders, said he hopes the rest of the state looks at the Bronx as a heartening example of bail reform's results.
"It can be done, and it can be done successfully," he said.
Staten Island DA Michael McMahon and outgoing acting Queens DA John Ryan have criticized the new laws and the way they were passed. McMahon said he and his staff are now working overtime to get ready for the changes, even if he doesn't agree with all of them; Ryan is leaving office when newly elected Queens DA Melinda Katz takes office Jan. 1.
Tina Luongo, attorney-in-charge of the Legal Aid Society's criminal defense practice, said public defenders handling Queens and Staten Island cases in December were still encountering requests for bail in cases where it wouldn't be available in just a few weeks. She said she hoped the situation would continue to shift throughout the holiday period.
Katz and her staff have been proactive and aware that Queens will be going through two big transitions at once, Luongo said. A spokeswoman for Katz's transition team declined to make the incoming DA available for an interview in December.
The less visible—and, for many lawyers, more stressful—part of the reform package are the changes to discovery, including a new requirement that prosecutors and defense lawyers exchange the first phase of discovery material within 15 days of a person's arraignment.
The use of e-discovery is picking up across the city to help move all that documentation from police precincts to prosecutors and then to defense attorneys, although Glazer said staffing needs are even more pressing than new technology. The mayor's office is distributing nearly $36 million to the DA's offices to help with the discovery transition, along with millions in funding for public defenders, police and other agencies.
Luongo said she thinks Legal Aid is ready for the discovery changes, though it will be a big culture shift. While no one was required to use the new processes ahead of Jan. 1, she said she appreciated that some DA's offices were practicing in advance.
"Queens has been piloting their e-discovery for months now, which is great because we've been able to work out some of the problems … we've only gotten a few test files (in Manhattan)," she said.
Prosecutors have said they're worried about maintaining victim and witness cooperation under the new discovery system, which allows defense attorneys to see more information than they could before, unless prosecutors seek a protective order.
McMahon's office is leaning toward using a Verizon-based service that will protect victims and witnesses from having to give out their real contact information, he said, but his staff has encountered "dismay and disbelief" as they explain the new system to victims.
Luongo said open-file discovery has been used successfully in other jurisdictions, so she expects prosecutors will be able to make it work in New York.
Levy said some elements of the reform package help New York catch up with other states, but the discovery reform law's insistence on pre-plea discovery is a key step nationally.
"The requirement that discovery be turned over before a plea, that actually really acknowledges the truth of our system—it is a system built around pleas, not trials," he said.
More reform work will be needed after Jan. 1, Luongo said, but she said Legal Aid's clients are hopeful about the changes.
"There is a sense that January 1, there is going to be justice for somebody who is accused, and that there is going to be more fairness," Luongo said.
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