Oscar Wilde’s frequently quoted adage “No good deed goes unpunished” can easily be applied to New York state’s recently enacted bail reform law, which ends bail for misdemeanor and low-level felony crimes considered nonviolent.
The State Legislature’s intent may have been good — to end the longtime practice of holding people accused of crimes in jail while they await trial because they are too poor to post the required bail. The initial results, however, are alarming. In only the first few weeks of 2020, there have been numerous instances in Nassau and Suffolk counties in which suspects arrested for committing crimes were released without bail only to once again engage in criminal activity.
Bail reform has quickly become a volatile issue for our state legislators, as swift and widespread criticism from local governments, judges, law enforcement groups and civic organizations has created an escalating negative backlash. As former Nassau County prosecutors and current criminal defense attorneys, as well as village mayors, we have the distinct advantage of being able to look at both sides of the argument, and believe that reaching a fair compromise must be a priority in this state legislative session.
With bail reform garnering the majority of media attention, another criminal justice reform measure with far-reaching fiscal impact has been relatively unnoticed. We refer to the new discovery legislation. Discovery is the mechanism by which those accused of crimes are given relevant material and information about their case before it heads to trial or a defendant takes a plea.
Before this year, discovery was available to the accused only after a request for it. Under the new legislation, discovery is automatic, and it is incumbent upon prosecutors to provide it within 15 days of a defendant’s arraignment. Under certain circumstances, prosecutors can ask the court to grant an additional 30 days. Additionally, the scope of what is to be turned over has greatly increased, to include names of witnesses and their contact information.
There could be substantial fiscal impact for Nassau County’s 64 incorporated villages. Village police departments, whose officers make the arrests that result in misdemeanor or felony charges, must meet the discovery obligations even though most cases will not be prosecuted in village courts. (Villages do not prosecute felonies.) They, in coordination with the county district attorney’s office, will be tasked with ensuring compliance with the discovery statute.
For villages prosecuting misdemeanors, the burden will be borne not just by police, but also by village prosecutors. They will have to file what the new statute calls “certificates of compliance” to alert the courts and the defendants that they have turned over all discovery. The statute does provide that prosecutors do not have to turn over discovery if they have made a plea offer to a defendant facing a non-criminal charge, but it will take litigation and court decisions to see exactly how that will be interpreted and implemented.
Village courts and personnel will be negatively impacted by another unfunded state mandate. The New York Conference of Mayors and Municipal Officials, whose president is Freeport Mayor Robert Kennedy, has proposed the following set of amendments that are consistent with the intent of the criminal justice reforms but allow for more effective and affordable implementation:
• Ensure that cities and villages are provided with additional financial and operational support to offset the cost of these mandated measures.
• Allow 60 days for prosecutors to disclose evidence to the defense for criminal charges.
• Exclude from the accelerated discovery requirements any charge not involving a misdemeanor or felony.
• Adjust the 20-day arraignment requirement to accommodate local courts that meet on a monthly basis.
• Allow prosecutors to withhold sensitive information, such as victim contact information, without having to obtain a court order.
The Nassau County Village Officials Association, which represents all of the incorporated villages, believes that NYCOM’s proposed amendments are reasonable. We urge our state legislators to consider the needs of all of our residents as they look to reach an acceptable compromise under these controversial new laws.
Edward Lieberman is the mayor of the Village of Sea Cliff and president of the Nassau County Village Officials Association. Geoffrey Prime is the mayor of the Village of South Floral Park and chairs the NCVOA Education Committee.