When New York's laws governing bail were enacted back in the 1970's they were among the most progressive in the nation. Unfortunately, the status quo is no longer acceptable. New York's current bail system fails to recognize that freedom before trial should be the rule, not the exception, and by tying freedom to money, it has created a two-tiered system that puts an unfair burden on the economically disadvantaged. Furthermore, in practice, the location of an arrest often defines whether or not you are released or have to pay money for your freedom creating further injustice.
To rectify these inequities, the Governor is proposing legislation that will eliminate monetary bail for people facing misdemeanor and non-violent felony charges. Instead, people will be released either on their own recognizance or with non-monetary conditions imposed by the court, such as reporting to a pretrial services agency. For people charged with a violent felony offense, both monetary and non-monetary bail would be permitted, but only after a judge conducts an individualized review of the nature of the case and the defendant's personal and financial circumstances. If monetary bail is set, the court must give the defendant a choice between cash or bail industry bonds and an alternative form of bail such as an unsecured or partially secured bond. Additionally, in limited cases such as domestic violence offenses, cases involving serious violence, or when a defendant commits a new crime while out on pretrial release, a judge could order, after due process, a defendant to be held in jail pretrial without bail if they find the defendant poses a significant flight risk or if there is a current threat to a reasonably identifiable person's physical safety. Together, these proposals not only level the playing field for all defendants, regardless of their economic standing, but also ensure that actual threats to public safety are addressed.
New York is one of only 10 states that enable prosecutors to withhold basic evidence until the actual day a trial begins. Even worse, New York has the distinction of standing alongside only three other states - Louisiana, South Carolina, and Wyoming - as having the nation's most restrictive discovery rules.
Under Governor Cuomo's plan, prosecutors and the defense will have to share information incrementally before a trial takes place. This will include disclosure of evidence and information favorable to the defense; intended exhibits; expert opinion evidence; witnesses' criminal history information; and search warrant information will be made available to defendants in a timely and consistent manner. Doing so ensures attorneys have the tools necessary to adequately represent their clients.
Additionally, along with an accelerated disclosure of witness information, this plan will provide numerous special procedures to ensure the safety of those witnesses and the sanctity of the judicial process.
The Sixth Amendment to the United States Constitution and state law guarantee all citizens accused of a crime the right to a speedy and public trial. Too often, however, defendants are held in custody, pre-trial, for excessive periods of time and courts are overburdened with an overwhelming number of pending criminal cases. This leads to backlogs that disrupt the justice system and have a disparate impact on low-income and minority communities.
The new law will guarantee that criminal cases proceed to trial without undue delay and that people are not held in jail for unreasonable periods of time. It would 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. These waivers include a deadline so that the defendant, defense attorneys, prosecutors, and judges understand when the trial is scheduled and will only be granted after the defendant has made an appearance before a judge.
Courts would also conduct periodic reviews of cases where defendants are held in detention, to assess the prosecutor's statement of readiness, reconsider bail status if appropriate, and schedule a pre-trial conference. This will ensure the courts monitor cases where defendants are in custody and encourage the case to move forward to a conclusion.
The final component will help prevent delays stemming from actions by the defense where attorneys may file frivolous speedy trial motions at the last minute to delay an impending trial date. Currently, the defense only has to allege that the prosecution failed to declare its readiness for trial within the statutory time period, shifting the burden to the prosecution to identify the sections of law that allow for its actions. Under the Governor's proposal, a motion to dismiss must be made at least 20 days before the trial begins and it must include sworn factual allegations specifying the time periods that are being charged against the prosecution.
Civil asset forfeiture is the process by which authorities confiscate cash or property they believe is obtained through illicit means. Currently, a person does not have to be found guilty to have their assets claimed by law enforcement -- law enforcement only needs a preponderance of evidence to make a seizure.
Under the Governor's proposal, new legislation would be put forth that would limit asset forfeiture proceedings to cases in which a conviction is obtained.
Additionally, Governor Cuomo will move to enhance reporting requirements for local law enforcement and District Attorneys. New York's current reporting procedure only requires these groups to report the total value of assets seized and the distribution of those assets. The State Division of Criminal Justice Services will expand reporting requirements to include additional information, such as demographic and geographic data, to better understand how civil asset forfeiture is used in New York State. Once a more comprehensive data set is created, New York will then evaluate the asset forfeiture system and make the appropriate changes to fix the identified issues.
Since taking office, the Governor has greatly reduced the barriers facing people with criminal convictions. These New Yorkers have paid their debt to society and now seek work, a place to live, an education, and participation in their community. In the last three years alone, New York has outlawed blanket discrimination against people with criminal convictions in state-funded housing, in public college admissions, in state employment and in insurance coverage for employers who hire people with criminal convictions.
Building on this work, the Governor is proposing to remove outdated statutory bans on occupational licensing for professions outside of law enforcement and instead, applicants will be assessed on an individual basis. The mandatory suspension of driver's licenses following a drug conviction will also be removed to allow people to travel to work and attend drug treatment, as long as the crimes did not involve driving.
Additionally, the Governor will safely widen release opportunities for people who have shown rehabilitation by expanding the type and variety of programs provided in state prisons to make those individuals eligible for merit release and limited credit time allowances. There are also people in prison over the age of 55 whose debilitating or incapacitating medical conditions are costly to manage behind the walls. To remedy this, the Governor will propose that the Parole Board examine these cases under a new "geriatric parole" provision in which the Board will balance any public safety risk posed by these individuals with their need for age-appropriate treatment in the community.
Finally, the Governor will speed returning citizens' reintegration to society by reducing their financial burdens after release, including removing the current parole supervision fee and having local child support enforcement offices review child support orders for people incarcerated over six months. If warranted, these orders can be adjusted to reflect the parent's current financial circumstances. The child will not lose out because they are not receiving money now due to most parents' inability to pay while incarcerated. Emerging without a crushing weight of unpaid support, a parent will be ready to reenter the workforce and start supporting their child upon release. The Governor has also ordered a comprehensive review of parole revocation guidelines and practices to determine appropriate alternatives to incarceration for those who violate technical parole conditions, but pose no risk to public safety.
This five-pronged effort will build upon the long list of improvements New York has made to the criminal justice system under the leadership of Governor Cuomo. In 2017 alone, Governor Cuomo led the effort to raise the age of criminal responsibility, passed legislation that required law enforcement to video-record custodial interrogations for serious offenses, allowed the use of photo arrays to identify witnesses to be admissible at trial and extended the landmark Hurrell-Harringsettlement's indigent criminal defense reforms to the entire State, becoming the first State in the Nation to overhaul its public defense system in such a drastic manner.
In the time since Governor Cuomo took office, New York State has closed 24 prisons and juvenile detention centers—more than in any other period under one Governor in state history. The prison population has also decreased by more than 6,000 within that time. The Governor also established the Work for Success Initiative which has helped over 18,000 formerly incarcerated people find work upon their release. Additionally, Governor Cuomo formed the state's first Council on Community Re-Entry and Reintegration in 2014 to address obstacles formerly incarcerated people face upon re-entering society. Since its launch, the Council has helped spur a number of changes to improve re-entry ranging from adopting "Fair Chance Hiring" principles in state agencies to issuing guidance that forbids discrimination at New York-financed housing based on a conviction alone.
The Reverend Al Sharpton, Hazel Dukes, the Anti-Defamation League and other leading civil rights and criminal justice advocates issued an open letter outlining their support for the Governor's 2018 agenda. Here is the text of the letter.
New York has a long and proud history of leading the charge to make our society more equal. While we have made great gains advancing social and economic justice, we must continue to unite and fight for the rights of all New Yorkers and defend the core values of equality and fairness that are integral to our social fabric.
It is no secret that the scales of our criminal justice system do not tilt equally for people of color and the poor, but this does not mean we can be complicit and allow unjust justice to persist.
Governor Cuomo has put forth a comprehensive package of reforms to make our criminal justice system smarter and fairer, the centerpiece of which is a sweeping reform of our outdated bail laws. These laws do not keep presumed-innocent people out of jail, instead, far too many New Yorkers are imprisoned today simply for the crime of being too poor to make bail. To solve this, Governor Cuomo has pledged to eliminate cash bail once and for all for anyone facing misdemeanor or nonviolent felony charges. Instead, people will be released under the least restrictive, non-monetary conditions that will reasonably ensure that they come back to court. While the bill has safeguards to protect against actual, proven threats that a few defendants may pose before trial, it ensures that the great majority of people going through the criminal justice system will be free before trial, because detention before trial must be the exception, not the rule.
New York's discovery and speedy trial laws are also outdated and in need of reform. Currently, defendants do not have access to crucial discovery until trial, and our speedy trial law needs tighter standards in assessing the parties' readiness for trial. The Governor has proposed reforms to these laws, and stands ready to work with the legislature to craft a final proposal that makes these processes more just and fair.
Finally, the Governor's package recognizes that many New Yorkers who have paid their debt to society still encounter barriers to their re-entry into our communities. The Governor has made significant progress in reducing such barriers administratively, but it is time for new laws in several areas. The Governor's proposal removes outdated bans on occupational licensing, safely widens release opportunities for people who have shown rehabilitation, creates a means for geriatric parole for incarcerated individuals with debilitating age-related conditions, and reduces financial burdens after release to speed returning citizens' reintegration to society, including eliminating parole supervision fees.
At every stage of the criminal justice process -- from arrest, to detainment, to trial, to release and re-entry -- we can and we must do more to right the wrongs of our criminal justice system. We, the undersigned, wholeheartedly endorse this smart, compassionate approach to criminal justice reform and urge the legislature to act on it swiftly.
Rev. Al Sharpton, President & Founder, National Action Network
Marc Morial, National Urban League
Hazel Dukes, NAACP State Conference
Michael Garner, 100 Black Men
Iesha Sekou, Street Corner Resources
Erica Ford, Life Camp Inc.
Susan Taylor, Founder & CEO, National CARES Mentor Movement, Editor in Chief Emerita, Essence Magazine
NYC Mission Society
Paula Edgar, Metropolitan Black Bar Association
Lloyd Williams, President, The Greater Harlem, Chamber of Commerce
David C. Banks, President & CEO, Eagle Academy
Carla Brown, Black Agency Executives
NAACP White Plains
Phil Craig, National Action Network Queens Chapter
Westchester Black Women's Political Caucus Inc.
George McDonald, The Doe Fund
Max Kenner, Bard Prison Initiative
Raul Russi, Acacia Network
Eugenio Russi, Hispanics United of Buffalo
Joanne Page, The Fortune Society
Anthony Thompson, Professor of Clinical Law, New York University School of Law
Sam Schaeffer, Center for Employment Opportunities
Timothy Donaher, Monroe County Public Defender
Julio Medina, Exodus Transitional Community