2019 NEW YORK SENATE CRIMINAL JUSTICE REFORM PACKAGE
1. Bail Reform. Bail Elimination Act of 2019, S. 2101A.
Ends cash bail for misdemeanors and nonviolent felonies, releasing people without bail or with some condition other than a monetary guarantee.
The legislation will also require police to issue appearance tickets for low-level offenses and create a process for district attorneys to request a hearing to determine whether defendants may be held in jail before trial and issue a protective order.
Pre-trial detention is ordered when a court finds clear and convincing evidence that the defendant poses a high risk of intentional flight and that no conditions in the community will reasonably assure the defendant's return to court.
The government may seek pre-trial detention at any time, sometimes having to show a change in circumstances had the person previously been released. The government otherwise may move for such hearings for persistent violent offenders, or defendants charged with felonies with intent to cause serious physical injury or with witness intimidation, or those who show consistent, willful failures to appear.
Such pre-trial detention orders may be re-opened by a material change in circumstance. They have time limits, depending on the charges, if trial is not brought within various time periods.
2. Discovery Reform. An Act to amend the criminal procedure law and the penal law to establish new criminal discovery rules, S.1716.
Requires the automatic prosecutor disclosure to the defense of all necessary discovery promptly; prosecutor may withhold certain information pending determination by the court.
Necessary discovery includes grand jury testimony, witness and government agent information, expert reports, any material exculpatory material, physical evidence.
Depositions of non-witness law enforcement or government officials are available as a means of discovery.
Requires disclosure before guilty pleas so pleas are knowing and voluntary, and before any defendant’s grand jury testimony.
The defense discloses all discovery after the government certifies it has complied; including physical evidence from defendant constitutionally compliant.
Trials may not commence until the prosecutor certifies compliance; discovery must be disclosed before guilty plea offers.
Either prosecutor or defense may withhold production while seeking a protective disorder. Such protective order may limit disclosure of discovery solely to defense counsel. Good cause for such order includes risk of harm, intimidation or reprisal, harm to law enforcement efforts, danger because of a defendant’s gang affiliation. Expedited review of such orders is available.
Remedies and sanctions are available if a party fails to meet its discovery obligations.
3. Speedy Trial Act Reform. An Act to amend the criminal procedure law, in relation to time limits for a speedy trial (“Kalief’s Law”), S. 1738.
Ensure cases go to trial in a reasonable time-frame.
Requires a statement of trial readiness from prosecutor, a certification of good faith compliance with the disclosure obligations and that any insufficient counts have been dismissed.
Requiring that at each court appearance preceding trial in a criminal action, the court rules whether the preceding adjournment period is included or excluded for the Speedy Trial calculation purposes.
Court congestion may not be excluded for misdemeanors.
Kalief Browder spent three years jailed at Rikers Island, on a charge
for which he was never tried or convicted. He was released in March
2013, having spent over 700 days in solitary confinement. On June 6, 2015, Kalief committed suicide, a final and permanent indictment of
New York's "speedy trial" statute. Under current law, prosecutors can declare readiness for trial by simply stating so.Yet at the next court date, they can declare themselves "not ready" and ask for an adjournment.And, even though it may take multiple weeks to get a court date, the prosecution is only “clocked” for the adjournment period it requested.As a 2014 New Yorker article pointed out, "Every time a prosecutor stood before a judge in Browder's case, requested a one-week adjournment, and got six weeks instead, this counted as only one week against the six-month [Speedy Trial] dead-line."
Kalief's Law will reduce undue delay by requiring the court to approve
exclusions only when a statement of unreadiness has followed and having the court rule on the number of days that shouldbe included for speedy trial purposes. Kalief's Law will ensure that a statement of "readiness" is real by tying it to discovery requirements, requiring the prosecutor to possess evidence they are "ready" for trial while allowing for flexibility when the facts merit additional time.
4. Parole Amendments. Four parole bills exist. These are:
A. Fair and Timely Parole. Findings of the state board of parole necessary for discretionary release of inmates on parole, S. 497.
Discretionary parole shall be granted when minimum term completed if is a reasonable probability that, inmate will live and remain free without violating the law, and that his or her release does not present an unreasonable current public safety concern,
If discretionary release to parole is not granted at the inmate's initial appearance, there shall be a presumption of release at any subsequent board appearance absent a preponderance of evidence that the inmate is unlikely to live without violating the law and that his or her release presents an unreasonable public safety risk.
B. Elder Parole. Parole eligibility for certain inmates aged fifty-five or older, S. 2144.
Providing mandatory parole hearings for inmates aged 55 plus and who have served at least 15 years, regardless whether minimum served.
Release mandatory if reasonable probability public safety not affected.
Mandatory Reconsideration within 24 months if denial.
C. Less is More Act. Community Supervision Revocation Reform Act, S. 1343A.
Restricts incarceration for technical violations. Certain technical violations could still result in jail time, but it would be capped at a maximum of 30 days.
Provides earned time credits. People under community supervision would be eligible to earn a 30-day “earned time credits” reduction in their community supervision period for every 30-day period in which they do not violate a condition of supervision.
Bolsters due process. Persons under community supervision shall be afforded a recognizance hearing in a local criminal court before they are detained, pending adjudication of an alleged violation of their conditions of release, whether a technical violation or a new criminal charge is alleged.
Any parole violation must be based on clear and convincing evidence.
D. Composition of Parole Board. Requiring the state board of parole to reflect the composition of the prison population in race, age and geographic area of residence, S. 740.
Requires the membership of parole board adequately reflect the composition of the prison population in race and ethnicity, age, and geographic area of residence.
The percentage of each demographic characteristic of the members shall be proportionate to that of the prison population.
5. Solitary Confinement. Restricting the use of segregated confinement and creating alternative therapeutic and rehabilitative confinement options, S. 1623.
Ends solitary confinement by imposing a limit of 15 consecutive days in solitary, and 20 days total in a 60 day period.
Creates more humane and effective alternatives, by expanding out-of-cell time guaranteed to all people separated to at least seven hours daily and ensuring that out-of-cell time involves meaningful human contact and programs.
Restricts the criteria for solitary confinement or other separation to the most egregious conduct.
Bans certain groups of people from any time in solitary confinement and ensuring such groups receive meaningful support.
Enhances procedural protections, staff qualifications and capabilities, and transparency and accountability.