Update: This article has been updated to include a corrected comment from Milo Justice Michael Christensen regarding bail to say: To restrict a justice from setting bail on a defendant unless he re-commits a crime is putting the safety of the public and law enforcement at substantial risk.”
In Gov Andrew Cuomo’s 2018 State of the State address, he proposed to make wide changes to the criminal justice systems in the state that will impact police procedures, the courts, and probation departments.
But local officials raise concerns about the proposals.
Cuomo describes the proposed changes as “Restoring Fairness in New York’s Criminal Justice System,” saying the “nation-leading, five-pronged reform package will ensure equal access to justice for all accused.”
The proposed overhaul of what is described as the “antiquated laws governing bail, discovery, speedy trial, and asset forfeiture” is joined with a reform package he promises will “improve the re-entry process to help individuals transition from incarceration to their communities.”
Cuomo says the new laws will:
• Eliminate monetary bail for people facing misdemeanor and non-violent felony charges;
• Expand the discovery process to include disclosure of information in a timely manner including evidence and information favorable to the defense; intended exhibits; expert opinion evidence; witnesses’ criminal history information; and search warrant information;
• Reduce unnecessary delays and adjournments in court proceedings, requiring that people held in custody - not just their attorneys - consent to a speedy trial waiver that must be approved by a judge and ensure that defendants are not being held unnecessarily when the prosecution fails to meet deadlines;
• Ban all asset seizures, unless an arrest is made and enhance reporting requirements for local law enforcement and District Attorneys; and
• Improve the re-entry process for individuals transitioning from incarceration to their communities.
Yates County District Attorney Todd Casella: “My largest concern is the elimination of bail for misdemeanor offenses. Many of the people we deal with have a long history of failing to appear for court. If we can’t set bail on them, they will continue this pattern and their cases will languish in local court longer and they may face additional charges for bail jumping. Not only this, but a considerable number of cases we handle are domestic violence cases. Many times an order of protection will be issued requiring that defendant to stay away from the victim. When the two live together that puts the defendant out on the street if he/she posts bail or is (released). Unfortunately, often times defendants do not follow these orders of protection and go right back to the house. Imagine how that makes the victim feel? A victim who finally took a stand and called the police to get help, only to have the perpetrator return home a couple hours later is less likely to call law enforcement again.
“With the requirement now that a defense attorney be present at all arraignments, a defendant’s constitutional rights are safeguard and there is no need to do away with the bail system that we have in place.
Milo Town Justice Michael J. Christensen: “The most troubling aspect of this proposal is the restrictions on bail for misdemeanors. For over a year now the Yates County Public Defender’s office has provided attorneys at all arraignments. They have been doing an excellent job interviewing defendants privately before the arraignments and making valid arguments for release on recognizance or minimal bail. The vast majority of misdemeanor defendants in my court are released on recognizance. However, there are and have been cases where misdemeanor defendants have lengthy felony criminal records, records of not obeying court orders of protection, and records of not appearing in court. Due to the serious opioid problem, I have set conditions of bail or release on recognizance that the defendant pursue treatment for substance abuse. I am concerned that this proposal could impact that practice. To restrict a justice from setting bail on a defendant unless he re-commits a crime is putting the safety of the public and law enforcement at substantial risk.”
Yates County Sheriff Ron Spike: Spike says the proposal will impact the county budget because it eliminates the reimbursement for personnel costs (hourly wages) related to transporting an inmate to a State Correctional Facility.
He says current law provides for reimbursement to counties for both travel costs and a portion of salary costs for the transportation of “state ready” inmates. This legislation would eliminate reimbursements related to personal service costs, however, the Department of Corrections and Community Supervision (DOCCS) would continue to reimburse transportation mileage costs. Usually, Yates County transports to Elmira in a trip that is about an hour each way, he says.But female felons are taken to Westchester County, a trip that takes several hours. They would still reimburse for vehicle mileage only. “Should this go through it is yet chipping away at the revenue to offset county costs,” he says, adding, “This is similar to state mandates upon county taxpayers and reminds me of the taking away the reimbursement a few years ago for county jail housing of N.Y.S. Parole violators. Counties have to pay the costs of housing and any medical expenses which in some cases can be huge costs. Seemingly a violator should simply just go back to be housed at a DOCCS facility that the individual was paroled from one and is a state issue. This elimination has cost counties a lot of money. One more thing related to state mandates and reducing our revenue that has to be picked up by local taxpayers. The anticipated savings statewide is $750,000 and the counties have to pick up the costs once again. I am sure that the NYS Association of Counties and the State Sheriffs Association will lobby against this proposal.”
Penn Yan Police Chief Thomas Dunham: “I have had a chance to review the Governor’s proposals. One that really stands out to me is doing away with bail for misdemeanors and non-violent felonies. Bail in the criminal justice system is not punishment, but a means to ensure someone reappears for their court proceeding. There are several things that are currently reviewed when making a determination as to bail. These things include the seriousness of the crime, past criminal record, if there are outstanding warrants, ties to the community, likelihood they will return, and the risk to the public if the defendant is released on their own recognizance. I believe eliminating bail on misdemeanor and non-violent felonies is not in the best interest of public safety.
“Bail is an essential tool to protect the public and to make sure the accused appears in court. If someone is selling heroin or fentanyl would they be released under this plan? As of now those crimes are not classified as violent felonies. However, we have seen far too many people in our community dying from overdoses. In my own experience I have seen several people who our agency has arrested and incarcerated turn their life around and later thank us stating that being in jail forced them to stop using. I will be interested to see a more detailed plan.”
Changes proposed by Cuomo include:
•In Bail and Pretrial Detention
• Discovery: New York allows prosecutors to withhold basic evidence until the day a trial begins. Cuomo’s plan calls for prosecutors and defense attorneys to share information incrementally before a trial takes place.
• Speedy trial: Cuomo says defendants are too often held in custody for excessive periods of time and courts are overwhelmed by the number of pending criminal cases.
Civil Assett Forfeiture: The new proposal would ban all asset seizures, unless an arrest is made.
• Re-Entry Process Cuomo proposes to remove blanket bans on occupational licensing for professions (except law enforcement) and have applicants assessed on an individual basis. The mandatory suspension of driver’s licenses following a drug conviction will be removed
To reduce financial burdens on the recently released, the existing parole supervision fee will be eliminated, and local agencies will review child support orders for people incarcerated over six months.
According to Cuomo, the state has closed 24 prisons and juvenile detention centers during his time in office, more than any other administration in state history, and prison population has also decreased by more than 6,000.