The final 2020-21 New York State budget, passed Friday, includes major “common sense” adjustments to the controversial criminal justice reforms enacted last year.
“I think we are better off today than we were a year ago when we enacted this bill,” Assemblyman Fred W. Thiele Jr. said yesterday.
The laws enacted last year, which took effect on Jan. 1, eliminated cash bail for most crimes, in an effort to ensure that the ability to pay is not a determining factor for pretrial detention. The reform also mandated speedy trials and transformed the discovery process. Some said it went too far, taking away judges’ discretion when setting bail and allowing those charged with serious crimes such as vehicular homicide to go free without bail, while also burdening police and prosecutors by the mandate to turn over evidence quickly.
Mr. Thiele believes there was a strong need to fix demonstrated problems with the criminal justice system. “The pendulum swung too far the other way,” he said, meaning in favor of the accused. “This year’s final enacted budget makes common sense adjustments to the bail and discovery law to ensure a fair system for the accused, while also protecting the public.”
The amendments restore certain crimes as eligible for bail. They include sex trafficking, promoting an obscene sexual performance by a child, aggravated vehicular assault and vehicular assault, assault in the third degree, arson in the third degree as a hate crime, grand larceny, money-laundering, failure to register as a sex offender, and bail-jumping.
Domestic violence is another area of the criminal procedure law that will now be eligible for bail. Criminal obstruction of breathing, strangulation, and unlawful imprisonment are all charges in which courts will be able to set bail.
Many people wanted to increase judicial discretion as part of the amendments, allowing judges to consider the “dangerousness” of a defendant, Mr. Thiele said. He called the term a “buzz word” that would skew the system once again, and said he was glad it did not make the final package.
Instead, there are provisions for handling repeat offenders, a better alternative, he said. Repeated arrests for class A misdemeanors involving harm to a person or property will also be crimes eligible for bail. If a defendant is charged with a felony while on probation or parole, that too is eligible.
“On the bail, it pretty much got it right. I’m sure we will learn more as we see the system evolve. Maybe there will be further tweaking,” Mr. Thiele said.
The reforms last year also amended discovery laws by advancing the timeline to 15 days. The 2020 budget amends these provisions in the Criminal Procedure Law: Prosecutors will now have 20 days to provide initial discovery when the defendant is in custody and 35 days when the defendant is not in custody.
“It would recognize that body camera and surveillance footage is sometimes voluminous, and therefore gives law enforcement more time to assemble and disclose it,” Assemblyman Thiele explained.
Also, 911 calls and certain witness and victim information are “presumptively confidential,” to be released only when a defendant can show the need to receive such information.
Old discovery practices have now been restored for alleged traffic infractions and violations of local ordinances and codes -- something Mr. Thiele called an overreach. In these cases, the defendant must ask the court to direct the prosecution to turn over all materials.
“This new law recognizes that discovery exchange between prosecution and defense is an ongoing process. While the prosecutor must certify readiness after making all disclosures, the law recognizes that belated disclosure, in and of itself, should not result in harsh sanctions such as dismissal, particularly when no prejudice occurred,” Mr. Thiele said.
Politics entered into the final vote, he said, as the budget passed Friday with 76 votes, the bare minimum. He said he was glad it passed when it did, as it is uncertain, what with the outbreak of Covid-19, when legislators will return to Albany.
The bail amendments take effect in 90 days from Saturday, when Governor Cuomo signed the budget. The discovery amendments become law 30 days from then.
While he is happy with the amendments, Mr. Thiele said he still feels the reforms should never have been included in the budget, but been free-standing legislation that was addressed individually.