Are New York’s Bail and Discovery Reforms in Renewed Danger?

By Kenneth Cooper*

In recent years, New York has seen a number of criminal law reforms deemed necessary to modernize its criminal procedure. In 2020, new criminal discovery laws went into effect in New York State. This reform imposed a stricter timeline for the prosecution to fulfill its discovery obligations and created a presumption towards sharing evidence between both parties. That same year, another bill went into effect eliminating cash bail for most misdemeanors and some nonviolent felonies. However, following backlash from opponents to the reforms and some calls for a repeal of the bail reform, a swing of the pendulum is likely, signaling a heightened risk of injustice for criminal defendants.

Focusing on the current status of these reforms in New York draws attention to the many other attempts across the country to bring about fair criminal law reform, and how some of those reforms may fall prey to misdirected criticism. To understand the battle for and against criminal law reforms in one state is to better grasp similar battles nationwide. Tracking the status of these New York procedural reforms in particular (one increasing discovery obligations and the other reducing the use of cash bail in pretrial services) can shed further insight into how other attempts at reform, perhaps more substantive in nature, may play out.

The Modernization of New York’s Criminal Procedure

To characterize the reforms passed in 2019 as merely political moves is to downplay the decrepit and deeply flawed statutory schemes they replaced. The discovery reform, for example, replaced its predecessor which had not been significantly revised for nearly forty years. The new discovery law that went into effect just two years ago marked a necessary shift for New York State. Before the new discovery laws, New York operated with what was known as the “blindfold law,” earning its moniker for its tendency to keep defendants in the dark about what evidence prosecutors had against them. In fact, prior to the reform, state prosecutors had the discretion to withhold discoverable evidence until the start of the trial. From a first glance, it is clear how such a law could easily contribute to the number of plea deals accepted. The rationale is simple: the less the defendant knows about what evidence, if any, the prosecution has, the more likely the defendant is to accept a plea deal. As such, the New York Assembly, motivated by the interest in fairness for defendants, passed N.Y. A4360A, eliminating the old criminal discovery rules in their entirety and replacing them with Article 245 of the New York Criminal Procedure Laws.

Article 245 imposes stricter timeframes for the prosecution to produce discoverable evidence to defense counsel based on the type of case. In cases involving pretrial custody, the prosecution must fulfill its discovery obligations within twenty days. For cases without pretrial custody, that window extends to thirty-five days. Additionally, any and all supplemental discovery must be conducted at least fifteen days before the scheduled start of the trial. Perhaps most notably, the discovery reform created a presumption of openness, requiring automatic discovery of vast amounts of discoverable material, including but not limited to all statements made by the defendant or co-defendant, transcripts of grand jury testimony, names and contact information of non-law enforcement personnel with evidence, names of law enforcement personnel, all expert opinion information, and all discoverable electronically stored information. The state assembly intended to provide criminal defendants with a more meaningful opportunity to investigate and fully weigh a plea offer by increasing the amount of information produced and decreasing the timeframe to produce it.

The bail reform similarly aimed to even the odds for defendants in a procedural manner, yet somehow generated greater controversy. Namely, it eliminated cash bail and encouraged alternative conditions for release in the event the judge determines a risk of nonappearance. This leniency only applies, however, to most misdemeanors and a handful of nonviolent felonies. In fact, § 510.10(4) of New York Criminal Procedure Code thoroughly details a wide variety of felonies to which the bail reform law does not apply. The rationale behind such reform rested on one common-sense principle to the bail regime: one’s wealth should not determine one’s freedom. 

While these reforms have now been in place for just over two years, criticism has relentlessly followed. Such critics incessantly argue not just to repeal, but to establish newer laws that once again increase the burdens of defendants in a criminal case.

Opponents Create a Straw Man Out of the Reforms

Legislators foresaw the obligations imposed by the new discovery laws. In fact, when the discovery reform was passed, so too was a significant budget increase to support prosecutors across the state. Nevertheless, more financial support is needed to maintain the obligations and preserve the fairness afforded to the criminal defendants by the discovery reform. Last month, the District Attorney Association of the State of New York urged state lawmakers to provide hundreds of millions of dollars in additional funding to the sixty-two district attorneys’ offices in the state to support the efforts to comply with the new discovery laws. To be sure, the Association did not critique the discovery laws in any way—in fact, the president of the association reiterated the goal of the discovery laws to “make the system fairer to those accused of crime.” Rather, the goal of the letter to the state assembly was to call attention to the need for additional financial support to best meet the obligations imposed by Article 245.

However, many critics of criminal law reform—not connected to the district attorneys—are using the foreseeable financial strain as an opportunity to critique Article 245 and in the process call for reforms to the criminal justice system that would constitute a step backward. Many critics, as recently as last month, have jumped at the chance to argue for a repeal. Such critics particularly focus on the Bail Reform of 2019, pandering to the same statistical improbability that an individual released from pretrial detention commits a violent crime. On the contrary, data collected from January 2020 to June 2021 suggests that only 2% of all defendants released under the new bail reform act were rearrested for violent crimes. In an even further illogical leap, however, such critics blame the bail reform for something it never did: prevent judges from considering the dangerousness of the defendant when determining bail. 

New York is one of the few states left barring preventive detention, that is, detaining a defendant on the sole basis of the risk to public safety they pose to the community. The lack of preventive detention in the state dates back to 1971, when state legislators deliberately chose not to include such a provision in the bail laws. Even on the federal level, preventive detention was only permitted following a massive bail reform act in 1984. In this regard, New York acts as a bulwark, upholding the presumption of innocence before a defendant’s trial, further inhibiting any preconceived notions of a defendant’s guilt. This well-established history of not permitting preventive detention has not stopped critics from attributing the practice to the Bail Reform of 2019. 

Outlook Unclear

Are the bail and discovery reforms from 2019 here to stay? For the short term, it is likely so. For the long term, one invested in upholding fairness and the presumption of innocence in the criminal justice system can only hope. Legislators may eventually need to tweak elements here and there, provided that doing so keeps the central focus of the laws intact. Considering much of the criticism mentioned above invokes the Bail Reform Act of 2019 yet argues against a practice that has been in place since 1971, odds are such criticism stems from something beyond the recent reforms.

The critics’ toolbelt consists of false premises and a straw man fallacy. In relying on such, the critic misses both the purposes and the positive impacts the laws have had on the system so far. Removing the fallacies from the argument, all that remains is a desire for a more punitive approach to criminal law, at the expense of fairness for the criminal defendants in the state.

*Kenneth Cooper, University of Minnesota Law School Class of 2023, JLI Vol. 40 Staff Member