(photo: Ed Reed/Mayoral Photography Office)
While momentum is building for the New York State Legislature to pass long-overdue bills directed at bail, discovery, and speedy trial reforms that promise to make the Criminal Court fairer, will these pieces of legislation do more than make a brutal, racist machine slightly less brutal?
New York’s insidious reliance on money bail is now widely condemned and proposals for reform abound. Some have suggested eliminating cash bail except for certain designated charges. In other words, pre-trial freedom should not depend on the size of your bank account, that is unless you are charged with certain crimes. Others want to eliminate cash bail but allow for preventive detention so that in certain situations a person could be remanded -- held without even the possibility of posting bail -- based on predictions of future dangerousness.
Usually in the legislative mix is a risk assessment tool that most people believe has racial bias baked into its core no matter how hard proponents try to disaggregate. And in place of release on one’s own recognizance -- simply being released and told to return to court on another day -- is a menu of supervised release, GPS monitoring, and other types of surveillance that expand the net of governmental control and intrusion over those hauled into Criminal Court for charges minor and serious alike.
New York’s ironically named discovery laws have rightfully been compared to a blindfold. Stories are legion of people forced to engage in plea bargaining and the crucial decision of whether to run the risk of a trial without knowing the evidence against them. Proposed reforms all dictate that the accused must have access to discovery much earlier in the process.
However, the crisis of discovery is not limited to when documents are provided to the defense. It is also a matter of what documents are provided. Some jurisdictions allow for the defense to depose the prosecution’s witnesses. In New York, the accused gets reports filled out by police officers that merely summarize what witnesses had to say. Some jurisdictions require that the complaint that informs the accused of the nature of the charges must specify the facts that support the legality of the stop and arrest, as well as facts that detail evidence of guilt.
In New York, the complaint is a template usually devoid of any details. One critical piece of discovery is the initial interview between prosecutor and arresting officer that takes place within hours of the arrest. In New York, the defense is entitled to the prosecutor’s de minimis notes from that interview. That interview should be taped, with the officer under oath, and provided to the defense at the accused’s initial appearance before a judge.
Yet even if the new laws addressed all the concerns raised above, what needs to change is the Criminal Court itself, a heretofore intractable behemoth that grinds up everything and everyone in its path. Much as prison abolition has moved from the impossible to the imaginable, so, too, should talk of abolishing the present incarnation of the Criminal Court.
The New York City Criminal Court has proven impervious to change. During the 1980s crack-cocaine epidemic, tens of thousands of drug-related arrests flooded the court. The court absorbed them all without as much as a hiccup. More recently, with Broken Windows, or quality-of-life, policing, the courts have been inundated with hundreds of thousands of misdemeanor cases. Again, the court took them all in without missing a beat.
No matter what the input, or whatever legislative reforms are enacted, the Criminal Court continues to do exactly what it is designed to do -- push cases, get pleas, and move the calendar with scant concern about the constitutionality of the arrest or the sufficiency of the evidence of guilt.
While no one can or should gainsay the importance of the proposed reforms to bail, discovery, and speedy trial, it is the Criminal Court itself that needs reform.
The court’s method, or lack thereof, of adjudicating cases has not changed since its current incarnation in 1962. It has long been appropriately referred to as an assembly line marked by a lack of adversarial litigation, as people are processed in ways that more resemble the Department of Motor Vehicles than anyone’s conception of a court.
All the discovery in the world may not stop judges from threatening the accused with a maximum sentence if they have the temerity to insist on their right to a trial, or prosecutors from making “one time only” plea offers, or revoking offers if the accused seeks to challenge the lawfulness of their arrest.
It is about time for the Criminal Court to be evaluated on how well it enforces constitutional rights.
The stop-and-frisk federal class action in Floyd v. City of New York exposed rampant search and seizure violations. How has the Criminal Court addressed that reality? The court in Floyd also found an equal protection violation as stop-and-frisk was disproportionately inflicted on people of color. Spend just a few hours in any of the city’s criminal courts and you will see the unabashed manifestation of similarly race-based policing as 95% of defendants are people of color. What is the Criminal Court response to that reality?
There is as well the accused’s right to due process, to basic, fundamental fairness. Due process is hardly the phrase that comes to mind when you spend any time in the Criminal Court.
To be clear, bail, discovery, and speedy trial laws must be reformed. Fewer people will be held in pretrial detention, fewer people will remain in the dark about the nature of the evidence they face, and fewer people will have an interminable wait for a trial. What remains to be seen is whether these changes will transform the Criminal Court from a guardian of assembly-line justice to an enforcer of constitutional rights.
Steven Zeidman is a professor of law at CUNY School of Law. On Twitter @SteveZeidman.