Times They Are A-Changing: NY’s New Bail & Discovery Law

By Brendan Kennedy

Robert Nasters

The sky is not falling. That’s the conclusion of a panel of experts at the New York State Bar Association’s Criminal Justice Section meeting, held on Jan. 29 at NYSBA’s 143rd Annual Meeting. Despite recent headlines in print and online media, the changes to bail and discovery laws have not spurred an uptick in crime, they have simply increased fairness in the New York criminal justice system.

The discussion on the recently enacted bail and discovery reform law was moderated by Hon. Barry Kamins, retired New York Supreme Court Justice, and featured Hon. Paul McDonnell, NYS Office of Court Administration, John Schoeffel, Esq., Legal Aid Society and Robert J. Masters, Esq., Criminal Justice Section chair.

Each spoke at length about where the old system was flawed, how the new system reflects laws in most other states, where the legislation falls short and how the singular way this piece legislation became the law is impacting the court.

Fundamental Change
“The arrest process in New York has changed,” said McDonnell. “With an E felony or less, an appearance ticket is now mandatory, this is a massive change.” Anyone arrested on a crime within the guidelines will be given a ticket and told to come back on a certain date in the future.

Judges must also consider the least restrictive conditions necessary to ensure that defendants will return, including release on their own recognizance with no conditions. If a defendant is determined to be flight risk, a judge can order pre-trial services, which may include phone call and text message reminders for upcoming court dates. Judges still can set curfews, take away passports and firearms and at some point, in the future order electronic monitoring. That service is not yet available in New York, however.

According to Schoeffel, the laws enacted on January 1, 2020 are the most widely and longest tested changes in terms of scope and timing. “New York is now just becoming normal,” he said. “We’re entering the mainstream and going to a basic, fair criminal justice system.”

The panel agreed that the legislation did produce some unintended consequences that could be mainly chalked up to drafting errors. However, as McDonnell noted to his fellow judges in attendance, “This is where as judges, you can lend your expertise, make rulings to see how this law is working.”

Entering the Mainstream
In terms of the change to discovery laws, New York has now joined 46 other states in allowing witness names and addresses to be handed over, the nationwide norm. The data from states that made this change indicates that this will lead to more protective orders, which will hopefully lead to cooperation.

Schoeffel noted that systems are needed to put up barriers for defense lawyers from talking to witnesses, but it should be the norm, as it has been in other states, for lawyers to be gatekeepers of contact information.

Schoeffel praised Presiding Justice of the Appellate Division, Second Judicial Department, Hon. Alan D. Scheinkman for a recent ruling where he called on the defense and prosecution to resolve such disputes and reach a reasonable accommodation, prior to seeking a ruling from the court.

Changes in the pre-plea discovery are some of the most impactful changes enacted by this legislation. Defendants will now have the knowledge of the evidence against them at least seven days prior to the expiration of a plea offer. The hope is to rid the system of pressure on defendants to accept an offer before knowing the full picture of the evidence against them or risk having a plea offer retracted before the discovery process is complete.

Impact on the Court
The panelists agreed that it is too early to determine the impact on the court, although early anecdotal signs point to a sea change that the court might not be ready for. Masters noted that based on his career in the Queens District Attorney’s Office, setting policy by anecdote is not a good thing.

While holding up a salacious cover of a tabloid newspaper, Masters cautioned — that more meaningful data on the impact of the new laws will be available soon and will show if the law is working as intended.

Being one of the biggest changes to criminal justice reforms in more than a generation, the panel also agreed it would be foolish to not acknowledge how this legislation came to be because doing so can muddy how much progress is being made.

“These set of reforms were part of a massive popular movement, which has been understated by law,” Schoeffel said. “This was driven by more than the bar associations,” he said.  “More than 60 groups of clergy, union workers and community groups supported the repeal and that must be recognized.”

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