Last April, the New York State Legislature passed an ill-considered set of criminal justice reforms that were buried in the state budget bill. As those reforms have taken effect, it has become clear that they present a significant challenge to public safety.
The New York Police Department favors criminal justice reforms and bail reform, but within a framework that is fair both to the victims of crimes and to those accused of committing them. The time has come to rethink these reforms to achieve the desired goal of a fairer criminal justice system that doesn’t undermine, but supports, public safety.
New York is not a jurisdiction that overincarcerates. Arrests are down 46 percent since 2013. Eighty-seven percent of arrested persons are released without bail within 24 hours of arrest. The city has the lowest jail incarceration rate compared to the five largest cities in the country, half the rate of Los Angeles and one-third that of Houston. The Rikers Island jail population is 51 percent lower since 2013 and down 74 percent from its high in 1993.
New York is now the only state in the nation that requires judges to entirely disregard the threat to public safety posed by accused persons in determining whether to hold them pending trial or to impose conditions for their release. In addition, the new law constrains judges from holding repeat offenders with long records of both crime and absconding trial. It eliminates cash bail and the possibility of detention for a wide array of offenses, including weapons possession, trafficking of fentanyl and other drugs, many hate-crime assaults, the promotion of child prostitution, serial arson, and certain burglaries and robberies.
According to our calculation, 738 people arrested on burglary and robbery charges in 2018 would have been released without bail or remand under the new law, despite the fact that their collective records comprise 9,926 arrests for crimes including 1,134 robberies, 891 assaults, 524 burglaries, 334 weapons charges, 48 sex crimes (including 15 rapes), and 25 murders or attempted murders. These are not the types of offenders who should be freed to continue their criminal activity. Judges should assess their risk to public safety.
The new law’s requirements also threaten to inundate police agencies and district attorneys with the sheer volume of paperwork that must be provided to defendants’ attorneys within 15 days of arraignment under new discovery rules. Valid evidence can be suppressed and solid cases can be dismissed on the grounds of incomplete discovery, even when such failures are inadvertent and immaterial. The financial cost of compliance is also substantial — in the tens of millions of dollars across the state.
The combination of two other factors — fewer people held pending trial and the early release of the names and contact information of victims and witnesses — places some of these victims and witnesses at risk of intimidation or retaliation. Violent criminals are being returned to the community and will know the names of their accusers and where to find them. As any detective will tell you, one of the main concerns of witnesses is whether the defendant will learn their identities. The likely outcome will be many fewer people coming forward to help the police build solid cases against criminals.
Defendants should have all relevant evidence before accepting any plea bargain and should not be receiving discovery materials on the very eve of trial, but the pendulum has swung too far against the interests of victims, witnesses and police investigations.
The N.Y.P.D. proposes three critical changes to current law to preserve public safety while still improving the fairness of the trial process.
First, in a staggered discovery process, defendants would receive the data they need to make an informed decision about plea bargains within 15 days of arraignment. Additional evidentiary material would be provided at reasonable intervals before trial.
Second, to protect victims and witnesses, we would revise the rules about the release of sensitive information about their identities to suspects. Right now, the burden is on the district attorney to make the case that this information should be withheld to ensure witness safety. The burden should shift to the defense to establish that revealing this information is critical to the case. The presumption of protection for witnesses will encourage more cooperation, prevent witness intimidation and allow judges to carefully decide when and how witness identities are released.
Finally, the N.Y.P.D. believes significant bail reform can be achieved, as long as judges are granted the discretion to remand suspects whom they determine to be genuinely dangerous, including chronic repeat offenders. We can trust New York State’s judges to use this discretion wisely and only for individuals who pose a real threat to the public or who continuously flout the justice system. The inequities of the bail process can be eliminated, and the interests of public safety served.
The April bail reforms were passed without any meaningful input from police agencies or district attorneys in the state, an extraordinary oversight that should not be repeated. Law enforcement should be at the table. We can help shape a law that will protect both defendants and the public.
Dermot Shea is the commissioner of the New York City Police.
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