Criminal Justice

Big Pretrial Justice Reforms Included in New York's Budget

Better evidence sharing and a dramatic drop in cash bail demands will help defendants challenge charges.


Andrew Cuomo
Albin Lohr-Jones/Sipa USA/Newscom

New York's 2020 budget may be a massive fiscal disaster, but it includes some good news for supporters of criminal justice reform. It includes some important changes in the state's pretrial processes that benefit those who have been charged but not yet convicted of crimes.

Gov. Andrew Cuomo had been pushing for some of these reforms since the start of 2018, but now he's been able to hammer out the compromises required to get them moving.

First: bail reform. New York state is not going as far as New Jersey, which has almost completely eliminated cash bail. But it will eliminate cash bail demands for misdemeanors and nonviolent felonies. The thoughtless, mechanized application of money bail across the United States has led to a culture where thousands of people are stuck in jail prior to their trials—not because they're flight risks or dangers to the community, but because they simply cannot afford the money to pay for their freedom.

The New York Times notes that New York City has already dramatically dropped the use of cash bail without seeing a rise in the number of defendants who subsequently missed court dates. In 2017, after the decline had been underway for several decades, 86 percent of defendants showed up for court—no less than before.

New York is following in the Garden State's footsteps by packaging bail reform with some other important changes. When New Jersey changed its pretrial system, it also put into place some changes to who gets arrested. The police had been arresting and locking up people for any number of nonviolent misdemeanors rather than citing them and releasing them with orders to show up for court. As a result, New Jersey began arresting fewer people in the first place, which kept the courts from getting clogged up with defendants as everybody involved was navigating a new pretrial system that involved actual hearings to determine the non-bail conditions for a person's release.

The budget also reforms misdemeanor and low-level felony charges so that police, rather than arresting defendants, give them "desk appearance tickets" requiring them to show up to criminal court to answer the charges. Cuomo predicts that together these reforms will ensure that around 90 percent of defendants don't spend their time waiting for their day in court stuck in a jail cell.

But that's not all! New York has long suffered under terrible rules for evidence sharing that allow prosecutors to keep mum on what they've gotten to prove their case until the very last possible moment, making it impossible for defense attorneys to prepare and essentially forcing less-than-stellar plea bargains. The Marshall Project has been writing about these problems in a state where 98 percent of convictions come not from jury trials but from plea deals. Much as when a person cannot afford bail, this system encourages defendants to accept bad plea deals just to move things along.

Cuomo's budget includes legislation that will require prosecutors to turn evidence over earlier (which they're already supposed to do). More importantly, it will require that defendants be able to review this evidence before entering a guilty plea.

In a prepared statement, Norman L. Reimer, executive director of the National Association for Criminal Defense Lawyers, called these changes "the most significant legislative reform of New York's criminal justice system in generations." But much remains to be done, he added, "from achieving a more robust exercise of executive clemency power, to parole and probation reform, expungement of marijuana offenses, disclosure of law enforcement misconduct records, and more."

Read more about Cuomo's criminal justice reforms here.