REFORM THE REFORM: The Downside of New York’s Discovery and Bail Reform Laws

In what seems to be a quest for justice, New York State embarked on a journey of reform, aiming to ensure fairness and equity in its legal system. But we must consider fairness for whom exactly? New York’s criminal justice system would soon face consequences that none of the legislators seemed to consider when they passed New York’s Discovery and Bail reform laws.  On January 1st, 2020, New York entered a new era with the replacement of its discovery laws. Little did we know that this change would become an intense burden for prosecutors and a shield for criminals, ultimately jeopardizing the safety of our citizens.

Under the new discovery laws, prosecutors are burdened with an excessive requirement to share all evidence with defense counsel within an unreasonably short timeframe. While seemingly noble in its intent to uphold transparency, this mandate has transformed into a nightmare for prosecutors who are already handling hundreds of cases simultaneously. Within 15 days after arraignment, prosecutors must shuffle through mountains of material to hand over anything deemed “discoverable.”  [1] This includes information such as witness contact details, 911 calls, all statements, and Brady material. While that material is crucial, within discovery compliance includes information that is completely inconsequential.

The weight of this responsibility not only strains prosecutors but also stretches thin the resources of law enforcement officials who must assist in gathering and organizing the necessary evidence. As a result, Defendants exploit this system, taking advantage of the timeline for discovery compliance.[2]  Offers from prosecutors become null and void without full discovery compliance,  allowing defendants to prolong proceedings, drain valuable resources from the state, and walk freely in the streets of New York as they do so. [1]

Moreover, the requirement for prosecutors to submit a certificate of compliance, coupled with the threat of noncompliance sanctions, adds another layer of pressure to people doing their best to serve the state of New York. [1] Despite acting in good faith, prosecutors find themselves walking a tightrope, balancing the demands of discovery.  The consequences of failure for prosecutors and law enforcement remain, with cases being forced to be dismissed. [6]  For example, in Manhattan alone, there’s been a 91% increase in felony cases in which the prosecutors have declined to prosecute. According to the Manhattan District Attorney’s Office database report, in 2019,  24,696 cases reached sentencing. In 2020, after the discovery reform, only approximately 7,000 reached sentencing. [7]

But it goes beyond just that. Dedicated prosecutors, who once committed their lives to safeguarding the interests of New Yorkers, now find themselves at a crossroads. Faced with the burden of paperwork and the relentless pressure to navigate these new laws, many prosecutors are left with no choice but to reconsider their career paths. [3]

Hand in hand with discovery reform, bail reform further complicates things for New York prosecutors. While oftentimes praised for its purported benefits, including a reduction in recidivism rates, taking just a better look,  the reality is actually much more complicated than that.  Reports from institutions like the John Jay College of Criminal Justice highlight the drop in rearrest post-bail reform but fail to acknowledge the intertwined impact of discovery laws.[4]

The data, based on prosecuted re-arrests, fails to consider the broader implications of discovery and bail reform laws passed in 2020. The report states that after 2 years of bail reform, they found that rearrests have taken a dive and that we can thank bail reform for that. However, they admit that “The results based on pre vs. post reform designs may be biased due to variations in policing and prosecutorial practices between 2019 and 2022. The impact of COVID-19 likely suppressed re-arrests during parts of the tracking periods” They admit that their reports only come from prosecuted re-arrests. [5] It is clear that the data relied on in this report only included prosecuted re-arrests in their recidivism rates. The data comes from the years 2020-21, when bail reform laws were passed, in comparison to 2019, prior to bail reform. As we learned in the previous paragraph with regard to discovery reform laws, discovery laws were passed in 2020 as well, and prosecutors have been forced to toss out cases at higher rates than ever before as a result. As prosecutors struggle to navigate the new legal requirements, cases slip through the cracks, and recidivism cases remain unprosecuted. [5] The correlation between reform laws and the decline in prosecution rates becomes apparent. Another thing that reports like these and that the legislators seemed to have overlooked.

Bronx Criminal Court Supervising Judge George Grasso put it in the best words, speaking for how many prosecutors feel when he called for a “reform of the reform.”  [8] That is why this blog is titled the way it is. Crime rates persist, and the number of cases prosecuted falls short, not due to a lack of effort by law enforcement and prosecutors but rather the unintended consequences of well-intentioned reforms.

In conclusion, the discovery and bail reform laws in New York, though aimed at fairness and equity, have instead tipped the scales in favor of criminals, leaving prosecutors overwhelmed and overworked and citizens vulnerable. It’s time to reform the reform and keep the citizens of New York safe.

 

SOURCES

[1]

Discovery Reform in New York Summary of Major …, 2020, www.innovatingjustice.org/sites/default/files/media/document/2019/Discovery_NYS-Summary.pdf.

[2]

Williams, Zach, and Bruce Golding. “Justice ‘reforms’ Forcing Prosecutors to Toss out 69% of NYC Criminal Cases, Alarming New Study Finds.” New York Post, New York Post, 19 Jan. 2023, nypost.com/2023/01/19/new-study-shows-how-ny-law-puts-bad-guys-back-on-streets/.

[3]

Denney, Andrew. “NYC’s Criminal Justice Reforms Have Some Prosecutors Looking for the Door.” New York Post, New York Post, 9 Feb. 2020, nypost.com/2020/02/09/new-yorks-tough-new-laws-for-prosecutors-have-some-of-them-looking-for-the-door/.

[4]

“Does New York’s Bail Reform Law Impact Recidivism? A Quasi-Experimental Test in the State’s Suburban and Upstate Regions.” Data Collaborative for Justice, 9 Mar. 2024, datacollaborativeforjustice.org/work/bail-reform/does-new-yorks-bail-reform-law-impact-recidivism-a-quasi-experimental-test-in-the-states-suburban-and-upstate-regions/.

[5]

Data Collaborative for Justice, datacollaborativeforjustice.org/wp-content/uploads/2023/03/RecidivismReport-1.pdf. Accessed 10 Apr. 2024.

[6]

Meyers, Hannah E. “Why ‘discovery Reform’ Is Boosting Crime.” New York Post, New York Post, 6 Jan. 2024, nypost.com/2024/01/06/opinion/why-discovery-reform-is-boosting-crime/.

[7]

“Manhattan Da Data Website.” Manhattan DA Data Website, data.manhattanda.org/. Accessed 10 Apr. 2024.

[8]

Denney, Andrew, and Bruce Golding. “NYC Judge Slams Bail Reform as ‘Significant Threat to Public Safety.’” New York Post, New York Post, 7 Feb. 2020, nypost.com/2020/02/06/nyc-judge-slams-bail-reform-as-significant-threat-to-public-safety/.