Opinion: Dismiss the governor’s discovery proposals

Gov. Kathy Hochul is once again trying to prosecute criminal justice reforms in the budget – and the state Legislature should dismiss the effort.

In 2020, the state implemented long-overdue reforms to the criminal discovery process by which evidence is produced and reviewed in the legal system. Under the old system, one of the worst in the nation, prosecutors could essentially withhold evidence from the defense – which is among the leading causes of wrongful convictions and incarcerations. It didn’t ensure laws were upheld. Instead, it allowed the law to be abused, plea deals coerced and unjust suffering inflicted. 

The right to a speedy trial is clear in the U.S. Constitution, but it has been routinely denied. In the case of people like Kalief Browder, that denial has been deadly. When one side of a case has all the information, they have all the power – and powerless people are harmed.

Years later, proponents of undoing the law want us to forget the pain and problems it was designed to prevent. They point to the real increased rates of dismissal as a miscarriage of justice, a threat to New Yorkers. But their aim isn’t to balance the scales of justice; it’s to tip them back in their own favor.

To be clear, the concerns about unwarranted dismissals may be reasonable – but the governor’s changes are not.

Two of the primary elements of the proposed rollback center on what evidence needs to be made available to the defense and the grounds for dismissal of a case if it’s not. First, the governor wants to set a standard of only providing evidence asserted to be “relevant” to a case rather than all evidence “related” to a case. Second, the governor wants to restrict the required evidence to what is in the prosecutor’s “actual possession” rather than “constructive possession.”

These proposed changes sound small, but they would completely gut the law and undo any progress made. Limiting evidence to a predetermined standard of “relevance” dramatically cuts off access to information that could ultimately be critical, even if not initially determined as such. Similarly, prosecutors can be aware of the existence of evidence not currently in their possession, which can ultimately be vital to the truth of a case but would be exempt from the newly proposed standard. In fact, it could create an incentive to delay possession of evidence at all.

Instead, legislation exists to provide prosecutors with real-time access to police evidence databases, one of several efforts to solve problems without creating more. It’s clear there is a genuine need to further reform the discovery process, but not to dismantle the reforms we’ve already made. 

A disproportionate spike in case dismissals here in the city does need to be addressed – but since it’s not replicated across the state, it doesn’t seem to be a consequence of the law itself but rather may be due to how the city has implemented it. We don’t need a new state law to fix the city’s implementation of the existing one. 

Dismissal rates are particularly concerning in cases related to domestic violence – a persistent problem that predates the 2020 reforms. One answer, though, is to make use of the discretion that judges already have.

Fortunately, a model exists to meet this need. Judges currently have the ability to determine whether certain lapses in producing evidence, or related delays, are genuine grounds for dismissal. That discretion was made clear in the 2023 case of People v. Bay, but it is clear that such discretion is not being used widely by judges. Codifying the standards set forth in Bay would be a strong step toward improving the system, not reverting it. 

We can ensure that judges actually use the tools already available to them and codify the authority inherent in the Bay decision to further emphasize those abilities. If the governor’s goal is truly to reduce unjust dismissals, she should be pursuing this commonsense effort, not fighting to undo the hard-fought victories of victims like the Browder family. 

The 2020 reforms were not designed to force dismissal of a case due to clerical errors or honest, good-faith delays, but to bring fairness – justice – to the way cases are handled. Judges are best suited to determine that justice. 

If this all sounds familiar, it’s because we’ve been here before, on bail reform. We made necessary changes to correct decades of injustice, then saw a disingenuous backlash blaming those reforms for every problem our city faced, then spent years clawing back those reforms with no legitimate reason or results.

Now, the same people who held up bail as a bogeyman are pivoting, and we are in danger of going down the same path on discovery by focusing on undoing progress and preventing the real reforms that still need to be made. The governor should learn from the mistakes of her past efforts to reverse criminal justice reforms, and pursue good policy rather than bad politics. 

In addition to the legal arguments, there is a moral one we need to grapple with in our policies – as we all know, justice isn’t solely measured in jail time. Watering down or repealing the 2019 discovery reforms won’t just reduce dismissal rates – it will slow the system and leave more people detained pretrial on Rikers Island. We cannot in good conscience or good governance put more people in danger there.

The state budget is overdue, and one of the holdups is over this discovery proposal. To sneak a major destructive policy like this into the budget at the last moment would be just as damaging and unjust as the withholding of evidence until the last possible moment that plagued our system for so many years. 

So instead of rolling back – let’s roll forward. We can have a New York that is both safe and just. Let’s make the changes to our system that need to be made, instead of going back to a system that was even worse. We have a choice – and justice demands we use our discretion.