Criminal Justice Reformers Hope To See Action In NY Soon

Feb 5, 2019

Credit Dave Lucas / WAMC

New York lawmakers say it’s likely they will vote soon to end cash bail and make other changes to help defendants who they say are unfairly treated in in the state’s criminal justice system.

The Senate sponsor of a measure to end cash bail, Senator Mike Gianaris, spoke at a rally of criminal justice reform advocates.

Gianaris, who is Deputy Majority Leader of the Senate, says the state’s bail system disproportionately affects the poor, and is racially biased. The Democrat cites the case of former movie mogul Harvey Weinstein, who has been accused of multiple cases of sexual assault.  

“Harvey Weinstein was accused of horrible things. He is in his lavish home today,” said Gianaris. “Can you imagine if a young black man was accused of the same things he was accused of? And how that person would be treated? We have a grossly unfair system right now." 

Gianaris says the Metropolitan Detention Center in Brooklyn, which recently had no heat or electricity for nearly a week, houses many prisoners who are awaiting trial and could not meet bail requirements. He says while it’s a federal prison that does not come under New York’s rules, it nevertheless illustrates the problems with preventive detention.

“There are people in that jail who are abused, who were essentially tortured in freezing weather because they hadn’t even been convicted yet, they are just sitting there waiting for trail,” Gianaris said. “And that is what we have in New York, all over this state.”

After years of Republican rule, the Senate is now led by Democrats, who won several seats in the November election. They are working with Democratic leaders in the Assembly on bills.

Governor Andrew Cuomo, also a Democrat, put a similar proposal in his 2019 budget proposal.

Nick Encalada-Malinowski, who works on the issue for the advocacy group VOCAL-NY, says with the Senate, Assembly and governor’s office all now run by Democrats, there’s no need to wait until the budget is negotiated to deal with policy issues. He says the measures could be approved much sooner.

“We’re in kind of a “new normal," in Albany,” said Encalada-Malinowski, who said the Democratic legislature now has an ability to get ahead of the governor and pass bills on key issues much earlier than in the past.

“It’s sort of a return to democracy in Albany,” he said. 

Encalada-Malinowski and other advocates also want to reform New York’s discovery laws, which they say are among the most regressive in the nation.

A bill under consideration in the Senate and Assembly would require prosecutors to disclose, at the defendant’s first court appearance, any police reports, tape recordings, results of scientific tests, or exculpatory information that could help a defendant’s case. The defendant and their attorneys would be allowed to inspect, copy and photograph all of the prosecution’s materials. Most other states already require that. But under New York law, Encalada-Malinowski says, prosecutors do not have to disclose any of the materials until a trial begins, which can be months or even years after a person is first charged with a crime.

"New York is one of four states where a defendant does not have the right to see the evidence that the prosecution has against them, if there is any evidence at all," Encalada-Malinowski said.

Those other states are Louisiana, South Carolina and Wyoming.

Advocates say the early access to the information that could exonerate someone is especially crucial because 95 percent of cases never go to trial, and end in plea agreements or dismissals.

They say a person accused of a crime is often encouraged to admit to a lesser crime as part of plea deal without every knowing that there was evidence that could have cleared them of the original crime that they were charged with.

A third measure would guarantee faster trials for defendants, who often have to wait months and even years for their cases to wind through the court system.