New York State will kick off 2020 by implementing reforms that allow some criminal defendants to remain free during trial, as well as require prosecutors to turn over evidence to the defense earlier in the case. Gov. Andrew Cuomo made the reforms part of his budget plans for 2019.
Cash bail will no longer be demanded from people charged with misdemeanors in New York (exceptions: misdemeanor sex offenses and protection order violations in domestic violence cases), and pretrial detentions for those defendants are eliminated. Money bail will be eliminated for most non-violent felonies, with exceptions related to witness intimidation, crimes toward children, and other high-risk cases. Money bail will still be permitted for most violent felonies.
When a judge does demand money bail, he or she will be required to consider the defendant's financial resources and provide several choices. The goal here is to prevent defendants from being stuck behind bars simply because they don't have money for bail, and to reserve pre-trial detention for defendants who may commit additional crimes as their cases wind through the courts.
In the event that a judge does deem a defendant to be a flight risk, the judge can set a number of restrictions on release, including electronic monitoring for more serious charges. (Read more about the new bail rules here.)
These reforms are more modest than what's been adopted in New Jersey, where cash bail has been almost completely eliminated. Under the new guidelines, according to the Center for Court Innovation, only about 10 percent of defendants arraigned for crimes in New York City in 2018 would have been subjected to cash bail demands.
The criminal justice system tends to apply pressure on defendants to get them to plead guilty without the hassle of a trial. Cash bail is one of those mechanisms—a defendant who cannot afford bail for a minor crime is much more likely to accept a guilty plea. Studies show that defendants who are unable to make bail end up with harsher sentences and less hospitable plea deals than those who are able to fight from the outside.
The other major reform concerns the discovery process. In New York, pretrial discovery has been a thorn in the side of defense attorneys for years, allowing prosecutors to withhold evidence from the defense until the last possible moment. (New York has some of the most restrictive discovery rules in the nation.)
With the start of 2020, new discovery rules require prosecutors to hand over much more evidence—including grand jury testimony and police reports—to the defense within 15 days of arraignment. The new discovery rules require that a defendant have three days to look over the evidence presented against him or her before accepting a prosecutor's plea offer. The new rule also contains a continued duty to disclose and share evidence that either party uncovers during an investigation and trial.
These "new" rules are similar to discovery regulations in the rest of the country already. New York residents may look down on southern states like North Carolina and Texas as having more punitive courts and judges willing to throw the book at defendants, but those states have already made these reforms. It's New York that's lagging behind. And state prosecutors have been fighting these reforms for decades.
Prosecutors who withhold evidence have the upper hand with defendants who are offered plea deals without fully understanding the strength of the case against them. The pressure of case bail and state-friendly discovery rules have contributed to 98 percent of all felony convictions in New York being obtained via plea deal.
Police and prosecutors have voiced their concerns about how this system will work, particularly on the bail front. While New York is eliminating most forms of cash bail, it is not implementing the significant, statewide pretrial monitoring reforms that New Jersey put into place. Each county will have to figure out its own plans.