The New York City Legal Aid Society has created a preliminary “cheat sheet” on the reforms included in the latest state budget, which activists are claiming to be huge and will change everything. The description is, necessarily, incomplete, as the nuts and bolts are long, prolix and replete with caveats, qualifications and exceptions.
In their last minute efforts to pass reforms, accommodate prosecutorial and police complaints with the magic bullet solutions of reformers, they created a shiny new Rube Goldberg machine for criminal law. The LAS review of the changes looks like a very fair description of the amendments, albeit one that might be a bit too aspirational as to whether things will work out the way they’re intended.
There are some real changes in there, such as the expanded, mandatory use of Desk Appearance Tickets, provided people provide identification when arrested and they aren’t arrested for a sex or domestic offense, since crimes against women are now carved out from all other crimes because oppressed women are special.
But then again, there is almost nothing in here that couldn’t have been accomplished before, had prosecutors and/or judges been amenable to doing so. But they weren’t, and they didn’t, and will they now go with the aspirational directions the law allows, as it always allowed, or the exceptions that will swallow the dreams of reform?
One thing of note is that these reforms will require the creation of an entirely new infrastructure to manage the “come to court reminder” system and the non-monetary free ankle bracelet monitoring system that offers an alternative to the current needlessly imposed cash bail.
If it works, it will almost certainly cost far less than holding people in jail, without the negatives that needlessly jailing people imposes on the administration of justice. On the other hand, if this just makes for a bunch of extra court appearances, a new round of excuses for doing the same as was always done, and fails to actually change the process, then those savings will be illusory.
The question is, will it be the change reformers believe it will be, or is this a lot of words murdered for nothing?
My view is that the law accomplishes little of serious worth, which outraged many of the baby public defenders and reformers, who were thrilled with these reforms. They wanted to argue the point, which is typical of the insipid since it either will succeed or won’t, but arguing one way or the other won’t change whatever will ultimately happen. Either things will change or they won’t, or the changes will accomplish what activists hope or not.
In any event, here they are. Have bail, discovery and Speedy Trial been fixed?
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The 15-45 day mandatory discovery seems to be a huge change from the complete absence of pre-indictment discovery available now. Do you not see this?
Someone raised this exact point to me on twitter the other day. First, this only arises in cases where the deft isn’t indicted within 6 days under 180.80, or he’s out of jail. Second, if the prosecution is on top of the case and is serious about indicting, you’re going to get your pre-indictment offer at the first appearance post-arraignment, which will happen before the 45 days elapse. Third, if you’ve gone beyond the 45 days without an indictment, what idiot thinks it’s a good idea to force the prosecutor to pay attention to the case to gather discovery, reminding him that it needs to be indicted or else the 30.30 clock will run? I want him to let the case fall into the cracks for as long as possible, eat up as much time as possible and get me as close to 30.30 as possible, for the dismissal.
Remember, the deft is out all this time, capable of helping in his defense, and unless he’s completely innocent (which isn’t a whole lot of cases), has a working idea of what the cops have on him. The whole “blindfold law” nonsense was cute marketing ploy, but let’s be real. You have statement notice from arraignment, you have an out-deft to tell you what happened and you have the speedy trial clock running against the prosecution. So better to compel an indictment in a case forgotten in the pile on a desk than let the clock run?
“the non-monetary free ankle bracelet monitoring system”
In other words, cash bail with another name and more restrictions? It even has the benefit of continuing to put money into the pocket of the bail bondsmen, who presumably have a stake in the ankle monitor game. What’s not to love?
Not exactly. There will be no charge to the deft for the ankle bracelet, courtesy of the taxpayer, and the courts will “partner” with pre-trial services agencies (no clue who or what that will turn out to be) to do monitoring. So they can stay home and work, which is better than jail. But if they violate, it’s unclear what happens then.
the courts will “partner” with pre-trial services agencies
Do I see a ready made new niche that the bail bondsman will move into?
Maybe so. There is a huge gap to be filled, no word on how that will happen and a lot of money to be made.
Upstate in NNY we have been doing this for years. Defendants get released to probation supervision on a routine basis. It works well 95% or the time
There are three major areas of reform, bail, discovery and speedy trial, and within each are numerous, complex systems that were apparently invented on the fly by the legislature over the last couple of months, with the final critical details done sometime after midnight. I’ve seen some of the mark-up, and it’s extremely complicated stuff, making all manner of changes to a system that was already ridiculously complex and, therefore, too easy to game.
These are highly controversial problems that commissions, committees, academics, bar associations and others have slaved over for years, and yet they managed to have a bunch of legislators, with the help of activists and over the objections of prosecutors, passed in the middle of the night.
How this plays out has yet to be seen, but this is now the way to arrive at good law. This is the way to disaster, unintended consequences that wreak havoc with the law. If this amounts to little, that may be the best we can hope for. This is not the way to fix law.
I’ve tried to go through the mark up versions, but if you’ve seen them, you realize how difficult it is and the amount of time it will take to be even a little thorough. If judges wanted to fix things, they always had the power under the law as it was. Now, I predict it will just be about inventing some new excuses and life will go on. There may be some exceptions (such as DATs), or not.
I don’t want to cop out by saying “we shall see,” but I can’t dedicate the time it would take to figure out what they did and how this will fit together. And yet, they managed to put this together on the fly. No, this is not the way to fix law.
Not a magic bullet, but the pre-plea discovery and crackdown on illusory readiness could be significant.
The biggest positive about the pre-plea discovery is that it could impact the “for today only” plea offers, although only when there’s been no prior discovery (which I assume will look remarkably like a VDF and be just as useful and substantive). Then again, for people who want to cop to a CD and not return, will they be forced to lose another day of work?
As for illusory readiness (which is a huge problem), if they’re going to lie about readiness now to a judge, as they do constantly, how does a judge asking them “are you really, really ready” and sign a cert change anything? Suddenly, they’ll admit they’ve been lying all along?