A consensus is finally gathering about rebalancing the criminal justice system in America. See it in the bipartisan support for the sentencing reform legislation passed by Congress in December. That measure brought together Jared Kushner and libertarian billionaire Charles Koch with Kim Kardashian West.
See it in the increased discontent with the decades-long era of mass incarceration that put too many people of color in prison for too many years, well above the levels of peer nations.
The consensus is now knocking on the door of the New York State Legislature, where a criminal justice reform package is poised to pass.
It is past time for many of these goals, like moving beyond an overreliance on solitary confinement and speeding up trials. Two other measures are just as important, but their details are thorny.
New York is an outlier with its “discovery” rules, meaning that defendants often have limited and late access to evidence and other materials gathered by prosecutors. Defense attorneys might not know how to adequately advise or defend their clients until the eve of trial, resulting in wrongful convictions and unnecessary plea deals.
Fix the rules of evidence
The Supreme Court ruled in 1963 that prosecutors must turn over material that would help defendants. But prosecutors have ways to defy the spirit of that ruling.
As long as the reformed discovery provisions allow protections for witnesses and others in sensitive cases such as domestic violence and gang-related crimes, it’s time for this change.
In another major reform, lawmakers are ready to end cash bail, a stark example of inequality. Its purpose is to ensure that individuals show up to court, but there are better ways to do it, like offering pretrial reminders or even carefully using electronic monitoring devices. Tens of thousands of people wait in jail simply because they can’t afford even small amounts of money to get out. This leads to lost jobs, lost homes and unsupervised children. Personally putting up money is not the only way to ensure a return.
Find a compromise on bail
Gov. Andrew M. Cuomo and the legislature seem to agree with the broad strokes on bail. The State Senate appears to be moving toward a middle ground, not totally in alignment with Cuomo, but at least in recognition that there are some people accused of serious crimes who shouldn’t be let go. But the State Assembly disagrees with a pretrial detention standard that permits the judge to keep in jail someone who might be a “current threat to the physical safety of a reasonably identifiable person or persons.” That’s the federal standard and the one used in most states. It should be in New York, too.
Unfortunately, there is concern in the Assembly that judges would use this “safety” clause to keep too many behind bars, reverting to old prejudices. There should be a way to hold the very small percentage of suspects who pose genuine threats to their communities, given adequate protections against overuse.
Both of these landmark bills would lessen the system’s tilt in favor of the prosecution, a needed corrective. That must be done carefully and precisely, but it’s the moral move to make justice fairer in New York.
