Ending the ‘Stone Age’ of criminal justice

What if you were walking down the street late at night when police officers appear and say you’re under arrest for robbery? Before long, you’re behind bars at a police precinct not knowing when this ordeal will end. Hours go by and you finally appear before a judge. What if you can’t get bail? In that case, Rikers Island could be your next stop. Now begins the difficult process of getting out – whether or not you are guilty.

Many Americans – particularly white people – assume that they would have a fighting chance to defend their presumed innocence. The U.S. Constitution, after all, guarantees the right to an attorney and a speedy trial, as well as protections against excessive bail. However, individual states have leeway in how those rights play out in practice. In New York, prosecutors – and a jammed court system – can make cases drag on for years while withholding evidence until just before a trial begins. That whole time, many defendants, especially poor ones, have to sit in pretrial detention wondering whether the prosecutor really has a case or is simply holding out for a plea deal. In such a predicament, many inmates ask themselves whether the criminal “justice” system really lives up to its name.

Could that change this year in New York? With strong majorities in the state Senate and Assembly, Gov. Andrew Cuomo and Democratic legislators say so. The governor included in his state budget measures to abolish cash bail for many crimes, reform discovery laws and speed up trials, but with an April 1 deadline to finalize the spending plan, they might not get done in time. However, these reforms have a real chance of passing, even if it’s later in the session, along with dozens of other bills that aim to redefine the criminal justice system – with more emphasis on correction than punishment.

Many Americans – particularly white people – assume that they would have a fighting chance to defend their presumed innocence.

Advocates will have to overcome significant obstacles to pass these three high-profile reforms. For starters, the governor has to hash out the differences in his proposals with bills favored by lawmakers. There is also significant opposition from prosecutors and crime victims to some elements of these reform efforts. Plus the sheer scope of the Democrats’ legislative ambitions mean that advocates have to overcome significant political noise in order to keep the state Legislature focused on accomplishing the biggest overhaul of the criminal justice system in decades.

The first step lawmakers want to take is a package of three bills that would make the trial process more favorable to defendants, who are overwhelmingly people of color. “New York state is in (the) Stone Age when it comes to criminal justice laws,” said state Sen. Jamaal Bailey, the sponsor of bills to reform discovery (which has 26 co-sponsors) and accelerate the trial process (which has 14 co-sponsors). “Mass incarceration is a scourge not only on New York, but also on our country as well, (so) we want to make sure what we are doing is stepping in the right direction to end mass incarceration.”

Advocates argue that abolishing bail has to go hand in hand with changing discovery laws and making trials happen faster. Given the notorious violence and deprivations at jails like Rikers, pretrial detention makes defendants more desperate to plead guilty as time goes by, giving key leverage to prosecutors. New York does require that felony trials take place within six months after an arrest, but a technicality in that law allows prosecutors to easily delay trials past that deadline. Prosecutors may ask a judge for a one-week delay, but clogged court calendars mean a trial is typically postponed even longer. Prosecutors only have to divulge the evidence they have just before the trial begins. If a person is out on bail, but does not know the evidence against them, or the trial is postponed for months or years on end, there may still be a strong incentive to take a deal.

“New York state is in (the) Stone Age when it comes to criminal justice laws.” -  said state Sen. Jamaal Bailey

A few weeks ago, the state Legislature appeared ready to pass bills that would abolish cash bail, reform discovery laws and speed up trials, but it was not to be. A key reason why bail reform stalled, lawmakers say, is the idea of “dangerousness” – basically, who should be released pretrial and who should not. Advocates of abolishing cash bail say it is important to note that its primary purpose is to ensure that a defendant shows up to court. “I think the big issue with bail is how people conceptualize how bail is supposed to be,” said state Sen. Luis Sepúlveda. Ongoing discussions are “totally about the exceptions” to pretrial release, he added, such as detaining a suspect in a mass shooting.

As for discovery and speedy trial legislation, there is broad agreement between the governor and legislators on passing reforms, though some details have to be worked out. One outstanding issue on discovery, for example, is how many days a prosecutor has to turn over evidence to the defense. “We’re not saying 15 (days) and the governor says 45,” Bailey said as a demonstration of how minor the disagreements are. Getting all this done by April 1, however, is not guaranteed, lawmakers say. Some believe they might have to wait until later in the spring to get it done. “I think that would be the intelligent thing to do,” said Assemblyman Joseph Lentol, the Assembly sponsor of the discovery reform bill, which has 23 co-sponsors.

Taking more time could allow lawmakers to tweak the legislative language to address the concerns of district attorneys, who say that the bills as written would put undue burdens on them and on law enforcement. Making the wheels of justice turn quicker requires staffing and financial resources that are not currently available to prosecutors, cops or courts, according to Albany County District Attorney David Soares, who is also president of the state District Attorneys Association. While a string of witnesses at a Jan. 29 state budget hearing on public protection expressed support for the reforms, Soares had some reservations. He said the legislation needs to adequately fund pretrial services that would help track defendants and make sure they show up to court. Requiring that prosecutors turn over evidence quicker might also be counterproductive, he added, because legal fights could erupt – and thus delay cases – over what can be withheld in order to protect witnesses from intimidation. Given the long-term stakes of criminal justice reform, more time is needed to prevent unintended consequences, according to Soares. “You have the opportunity to craft some of the most innovative changes and improvements to public safety and criminal justice in a generation,” he said in his testimony. “These are important matters to our state that will have profound benefits and consequences for years to come.”

Some advocates of domestic violence survivors – including Sonia Ossorio, president of National Organization for Women New York City – argue that sharing evidence earlier could lead to witness intimidation and ultimately discourage reports of abuse or violence. However, the discovery proposal includes a provision whereby a prosecutor could request that information, such as the identity of witnesses, be withheld from public disclosure if a judge agrees there is a danger. “I have a hard time believing that,” Lentol said in response to the concerns. “They don’t know that other states have been able to handle that situation really well?”

These three bills might be getting the most attention, but they only represent one facet of efforts to reform the criminal justice system. Other bills aim to emphasize rehabilitation in the prison system in order to reduce recidivism and lower prison populations. These include proposals to provide free legal counsel to inmates at parole hearings, new treatments for inmates struggling with mental illness, and increasing and expanding access to substance abuse programs for non-native English speakers. One bill sponsored by Sepúlveda would require automatic parole for inmates who complete two years of a temporary release program where they leave prison for a certain part of the day to work or attend vocational classes. “These individuals are demonstrating work ethic,” he said. “They are staying out of trouble and they do everything that’s required to complete their work release and yet because of the nature of their crimes they get denied. … What’s the incentive to participate?”

If that bill is passed, along with the litany of others, then New York might just get about “85 percent” of the way to an ideal criminal justice system, according to Sepúlveda. Such a system could have resulted in a different outcome for Kalief Browder, the teenager whose incarceration and death drew attention to the conditions at Rikers Island and the challenges facing people who are accused of crimes.

Such a system likely would not have kept Browder on Rikers for three years for allegedly stealing a backpack. The prosecutor would not have been able to delay his trial again and again. Browder’s attorney would have been able to better scrutinize the flimsy evidence that the prosecution had against Browder, who refused to take a plea deal. He might have even avoided spending any time on Rikers Island at all. No one will ever know how things could have ended differently for Browder, who endured 700 days of solitary confinement and then killed himself after being released. But at the very least, New York lawmakers are now pushing for new laws that would make sure what happened to Browder, and many others, will no longer be the norm in New York state.