The need isn’t new or novel, as it’s been the focus of efforts for more than four decades. That’s not me saying so, but Justice Mark Dwyer in the opening words of the final report of the NYSBA Task Force on Criminal Discovery, dated December 1, 2014.

For forty years, reports and legislative proposals by experts and practitioners have urged New York State to reform its outdated and unfair criminal discovery rules. This Task Force seeks to break the logjams that have stalled these necessary changes.

Discovery is but one of the major reforms needed and on the table, as New York has historically had a Democratic-majority Assembly and Republican-majority Senate. As the Dems now hold both chambers, and Gov. Andy Cuomo appears to be on board, the possibility now exists.

But what’s to be done, and how to make it happen, remains a problem. As usual, the District Attorney Association is fighting changes which will make their ability to coerce pleas and convict more difficult. Reform will place new burdens on their performance of the function, requiring them to actually perform their job, which will involve the additional labor of gathering discovery materials, copying them and turning them over to the defense. Nobody likes doing more work.

Details of reform remain problematic, as varying levels of complexity in the proposals raise the question of whether reform will create a new Rube Goldberg machine, with too many moving parts, too many rules and exceptions, that it will prove too difficult and unrealistic to manage.

Unspoken is that at the same time as reforms are being proposed, so too are new crimes and higher sentences for “domestic” violence and sex offenses, and conditions relating to racially disproportionate outcomes in such matters as bail reform, where the proposed law would prohibit algorithms for release that produce disparate results based on race, since the proposal presumes no non-racist algorithm could do such a thing.

But the hard work of crafting viable reforms that will work in the real world, that will make the system fulfill its purpose, isn’t the sort of problem that most reformers either grasp or care about. The syllogism kicks in, as usual, and if the reforms are untenable or fail to serve their function, we can revisit them 40 years from now. Something must be done.

Whether this is the right “something” is beyond the interest of most people. And sadly, the organized reform and public defender groups are so deeply captives of progressive ideology that they’re at the forefront of irrational and presumptive beliefs that are likely to doom serious solutions. Contrast these two positions in the Albany Times-Union, both in favor of reform, but very different in approach.

Kings County District Attorney Eric Gonzalez wrote in support:

Currently, prosecutors can wait until a jury is selected and the trial is about to begin to turn over discovery material to the defense. This makes it extremely difficult for a person accused of a crime, or their lawyer, to prepare and present an adequate defense at their trial.

While constitutionally permissible, I believe this is unfair. Not only does the current law allow “trial by ambush,” it prevents a person accused of a crime from learning the nature and strength of the case against them in order to make a knowing plea of guilty should they choose to forego a trial.

But what of the claims by DAASNY that this will put the system at risk?

This is not how we do things in Brooklyn. The Brooklyn District Attorney’s Office has for many years gone beyond what the law requires, turning over discovery material at the very beginning of a case, and continuing to turn over additional information as we obtain it from the police, the medical examiner and other sources.

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Our “open file discovery” practice has not resulted in the negative outcomes some reform opponents fear. The safety of victims and witnesses is not compromised by our practice and they are not discouraged from coming forward. Do we lose more of our cases because we don’t use secrecy as a tactical advantage? I honestly don’t think so, but that is beside the point. Gamesmanship should have no place in how we, as prosecutors, do our jobs.

The “Blindfold Law” is a recent marketing phrase invented by reform advocates, who have mounted a social media campaign largely characterized by misleading and exaggerated claims about the problem. It serves well to work up the passion of the ignorant, but it’s dishonest, likely deliberately so. But when dedication to a cause excuses such details as honesty, they have no qualms about it. And it remains unquestionable that reform is critically needed.

In contrast, consider this letter from the advocacy group, VOCAL-NY:

I am sickened by David Soares’ position that money bail is essential to prosecutors because it gives them the power to force people to make life-altering decisions under the duress of a threatened county jail stay (“Soares, DAs not in love with budget,” Feb. 4).

This attitude is exactly how prosecutorial power has been abused for decades, resulting in the exponential growth of jail and prison populations reflected in what we now call mass incarceration. It is also illegal under the current New York state bail statute. It’s time for New York state legislators to look past the dog-whistle fear-mongering of district attorneys worried about losing their power to railroad defendants. Enough is enough.

The frustration that oozes from this letter is understandable, and it’s not necessarily wrong. The DAASNY is playing dirty to kill reform, so advocates are giving it back to them. But if we’re to get reform, as is possible now when it hasn’t been before, and we’re likely to live with the consequences for the next four decades or so, let’s do it right so that we actually fix real problems rather than promote a fantasy agenda.

Expressions of outraged emotions combined with distortions of the problems and fantasy ideological solutions will not solve the problems. More to the point, letters like this will drive away the legislators who know that the moment’s reform trends will pass, some heinous crime will happen that outrages their constituents, and there will be cries for a new round of tough on crime. “Something must be done” is the rallying cry of both sides.

If something is going to be done, let’s try to get it right this time. Social media-depth rants of emotion only drive legislators away. If this is going to be the one chance to make reform happen, then let’s not blow it on feelings of outrage and instead do the heavy lifting of crafting reforms that will actually work and provide due process for all.