Special Report: A look at new criminal law reforms in New York
Elmira, NY (WENY) -- Two of New York’s new criminal reform laws are consistently making headlines, after taking effect on January 1st.
The first law deals with bail reform, and judges not being able to set cash bail.
Someone arraigned on any qualifying crimes could be free while awaiting trial. Included in the bail reform are violent felonies like 2nd-degree manslaughter, vehicular manslaughter or 3rd-degree assault.
The bill prohibits judges from setting cash bail for many other misdemeanors and some other violent felonies. It means even after their initial court appearance, a defendant can walk while they wait to be indicted by a grand jury if the crime is considered a felony. Weeden Wetmore, the Chemung County district attorney argues, some bail reform was needed.
Wetmore say's, “I understand the bail reform in a sense that if a person can't afford a bail he's got to sit in jail whereas someone with perhaps financial resources, comes from a family of money he's going to post bail.”
What brought this issue to light was a case downstate in new york city. The case, shed light on the state's need to change the bail statute. Shawn Sauro, the Steuben County public advocate, said that particular case gained national attention.
“There was a recent event downstate, having to do with Riker's Island that became the poster case for wanting to change the reform and it had to do with a young man who wound up at Riker's Island,” said Sauro.
Sauro is referring to the case of Khalif Browder.
Browder was arrested at the age of 16 but was charged as an adult for allegedly stealing a backpack. He was charged with 3rd-degree grand larceny. Because his family could pay his bail, Browder was held in Riker's Island for over a year. Later, a video surfaced of him being accosted and harassed by other inmates, while in prison. He was incarcerated for over a year with much of his time being in solitary confinement. He was eventually released but the mental damage was done. He killed himself at the age of 22.
“You're supposed to be innocent until proven guilty,” Browder said in an interview on ABC News. “If I would have pleaded guilty no one would have listened to me.”
If Browder had been arrested in 2020, he wouldn't have been incarcerated. Among the list of crimes that fall under the new bail law includes grand larceny. The list also includes petty crimes like stalking, jostling and being held in contempt. But Wetmore argues that there's a significant risk to the public when included in that list, are more violent felonies. Dangerous or violent felonies that fall under the bail statute include criminally negligent homicide and aggravated vehicular manslaughter.
“It's a bar fight, the police are called, the person is brought into the police station, he's arrested for assault 3rd, the judge might send him to the county jail, but now the judge says you're released come back on such and such an appearance date,” said Wetmore.
With the judge handing down an appearance date and not requiring the defendant to be held, Wetmore says in the circumstances stated above, the person at the bar could theoretically go back to the bar a couple of hours later.
But on the flip side, Sauro says that detaining someone can have a significant adverse effect on their life. Being in jail for just a single day can be life-altering. A defendant, who is still presumed innocent until proven guilty, beyond a reasonable doubt, can lose their jobs, healthcare benefits, and lose access to critical healthcare services.
“When you have and indigent defendants and bail is set they can't afford bail. And in many instances if it's a dollar it's a million dollars,” said Sauro. “By being incarcerated, it can do a lot more harm than good. In a lot of cases if you weren't indigent when you went to jail, if you can't make bail, by the time you get out, you probably are because you don't have a job anymore.”
''Traditionally the district attorneys in Chemung county, and I can only speak for Chemung county, we all try to seek justice. I tell my attorney's to be fair in asking for bail and asking to ensure someone's appearance.” Wetmore said.
The new law has already taken a toll on many Finger Lakes counties. A couple of weeks ago, on January 17th, in Bath, NY, 26-year-old Javon Harris was arrested by deputies with the Steuben County Sheriff's Office for grand larceny. On the 18th, he was arrested again by officers with the Bath police department for unlawful imprisonment and public lewdness, less than 12 hours after his first incident. Less than 12 hours after that, Harris allegedly stole merchandise from Tops and was later found to be in possession of a stolen bicycle. For all three of those circumstances, police noted he was released back into the public because the charges did not qualify under the new bail law. On his 4th run-in with the police, Harris was arrested by officers with the Hornell police department on charges of forcible touching, and resisting arrest. Jim Allard, the Steuben County Sheriff, said of the arrests, "It took four arrests to get him (in jail). At what point of time do we realize the rights of victims of crimes outweigh the criminals?" He said. "As much as we try to educate, now people are seeing the real-life effects of this."
Republican new york state senator Tom O'Mara isn't optimistic that there will be changes. He says there won't be a change as long as Democrats hold a majority in the assembly and senate, plus the governor’s mansion.
“When this was passed in the budget last year, every Democratic senator voted for it and not one Republican senator voted for it back then. So this is very much spit on party lines,” said O'Mara.
However, O'Mara has renewed his call for Governor Cuomo and other democratic leaders to repeal the state's new bail reform law immediately. O'Mara says the new law puts public safety at risk by releasing potentially violent criminals back into the community without supervision. He also said this could give some of those violent criminals the chance to threaten victims, and witnesses. O'Mara is currently co-sponsoring legislation to fully repeal the new bail law or impose a year moratorium. By doing that, O'Mara hopes that it' ll allow for a statewide public hearing on the matter. But it's a bill Cuomo is standing by.
Cuomo said, “Bail reform is right. You have a criminal justice system that says basically, you get arrested; if you can make bail you're released if you can't you sit in Riker's for two years and get abused until you have your day in court.”
For Wetmore, even with the governor's words, he remains skeptical that there will be any changes. He argues that the statute wasn't well thought out and that it was passed without much input from prosecutors.
“I think justice will initially suffer. We're already seeing it downstate with some of the people already being released and that are victimizing other people,” said Wetmore.
But other attorneys remain optimistic that changes are on the way. Sauro says that the bill is good and has worked in other states that have passed similar reforms.But Sauro went on to say there still needs to be some amendments to it.
Sauro say's, “By allowing some discretion for judges here in New York I think that would go a long way help mitigate some of the concerns.”
The second law deals with criminal discovery reform.
”Up until this point in New York state, discovery only has to be revealed at certain points in the case from the district attorney's office and it's usually very late in case'', say's Sauro.
Part of the discovery reform focuses on getting material evidence on both sides much earlier. The people's evidence now has to be given over to the defense counsel in just over two weeks.
''Now, they don't have to ask. Now within 15 days of arraignment, we have to turn over everything whether they requested it not,” said Wetmore.
The Chemung County D.A. says that some material they turnover might be irrelevant to a case, like radio calls from officers to dispatch. But a significant and potentially dangerous issue, in prosecutors' opinions, is handing over grand jury testimony.
Grand jury hearings are sealed, in part to protect a witness's identity. However, Wetmore argues the new law exposes a witness's identity earlier in the criminal process.
Wetmore gives the example of, “If you're a witness to a crime in your neighborhood, and it's your neighbor who held a knife to someone's throat, do you really want him to know that you're cooperating with the police and had gone before the grand jury and testified?”
On the flip-side, having discovery material earlier can help a defendant decide what direction to take. Sauro says before, defendants incarcerated couldn't examine the evidence against them and now some defendants who might have pleaded might instead take their case to trial.
“The people have 15 days to get all the information pertaining to the case, the arrest report and those kinds of things to the defense attorney so that we can make some more meaningful decisions,” said Sauro.
How is the new discovery reform hitting home to attorneys in the Southern Tier?
Tom Shen, was facing, a number of charges in connection to the defrauding of a hotel being built on Corning Road in Horseheads. The Tioga County D.A.'s office is moving to dismiss it. Among the factors, they cited that their office is facing limited resources under the state's discovery law. It's a problem shared just down the highway in Chemung County.
'I can tell you that I have three staff members, two secretaries and a clerk that are doing nothing... there not doing their legal secretary responsibilities. They're doing nothing but downloading the materials so they can send them over to defense counsel.” said Wetmore.
Wetmore says they've added additional staffer and are looking for more.
“15 days is way too onerous of a time. In that 15 days there's also turning over of witnesses names, not just their contact information but their addresses, their phone numbers, their email address,” said O'Mara.
When it comes to criminal reform as a whole, Governor Cuomo agrees that it could use fixing.
“Changing the system which we started to do is complicated and has a number of ramifications. There's no doubt this is still a work in progress,” said Cuomo.
Changes could still be on the way. Particularly with respect to defendants' access to a crime scene.
But Sauro argues reform was needed.
“Most of the states in the United States have a similar bail statue and a similar discovery statute and so we're late to the game,'' said Sauro.
But Sauro adds amendments to the bill could always come up in the future.