Last week law enforcement officers from across Chenango County attended training to prepare for the impending monumental shift in our state’s criminal justice system. The law changes on the horizon are so weighty the District Attorney, Mike Ferrarese himself lectured the gathering of cops and deputies.
Beginning January 1, 2020, changes in two areas of NYS laws will drastically impact law enforcement and prosecutors; pre-trial confinement using bail and the rules involving the discovery of evidence.
These changes in the near future are significant, intricate and include many details and a few exceptions, however, my column will only cover the wave-tops of the subject matter, nonetheless, you should all get the gist of what is coming in about 83 days.
First let’s look at Part I, pre-trial bail. Bail exists to ensure people will return to court to face their charges. Another reason to incarcerate someone on pre-trial bail is public safety, but that will seldom be the case after December of this year.
At the very beginning of our four and half hour class, the DA’s first words were “we will no longer call people who are arrested ‘defendants.’ After 1/1/2020 they will be known as ‘principals’ of the case.” For the law officers in the room, it only went downhill from there.
Next year, when law enforcement makes an arrest, with few exceptions, the person arrested must be released on an appearance ticket. Further, the arresting officer must obtain from the arrested person three means of communication, such as a telephone number, e-mail address, or a relative’s phone number in order to send a reminder of court appearances just in case the arrestee forgets to show up. The reminder calls and communications must take place before a judge can issue a bench warrant for missing a court date.
The new normal will soon be magistrates arraigning defendants (pardon, principals) only to release them on their own recognizance with few exceptions. A judge may hold people in jail for crimes such as murder, protection order violations, rape, and child pornography. However, such crimes as Manslaughter 2nd and illegal drug possession and sales – even Class ‘A’ felony drug charges – are mandatory release. Please, read that again so you understand the gravity.
A judge can also hold a person in jail for committing a Violent Felony, which is the type of crime where a bad person uses a weapon or causes injury during the act. Astonishingly, not included in the list of violent crimes is Burglary 2nd degree and Robbery 2nd degree. So everyone is clear, Burglary 2nd is when a person forcibly enters someone’s home to commit a crime and Robbery 2nd is when a person forcibly steals from another person face-to-face.
In cases when a judge sets bail and the principal is released, the judge may impose restrictive conditions such as ankle monitoring, or require attendance at pre-trial monitoring services. Everyone should know in advance, Chenango County currently has no electronic ankle bracelets or any sort of human monitoring service organizations.
Long gone are the days when a sympathetic judge could do an impoverished person a favor by incarcerating them for 90 days in the cold winter months. For that same person to get “three hots and cot” the down-state liberals hope the soon-to-be-empty correctional facility might better be turned into a homeless shelter. This is not an exaggeration. Washington County, NY has implemented only some of these new criminal justice reforms and their jail population has shrunk by 50%.
Moving on to Part II are the new laws involving evidence. Starting in January, once a person is arraigned on any violation (including traffic), a misdemeanor or a felony the 15-day evidence clock starts ticking.
Once a principal is arraigned, the DA’s office has 15 days to supply the principal with the names and contact information for all people with anything relevant to the case, including arrest histories of any witnesses. Also within the 15-day limit, the DA must provide the principal all video footage from patrol cars, officer’s body-worn cameras, retail store video systems, 9-1-1 recordings, and radio transmission recordings. One other very important item which falls into the 15-day time limit is laboratory examination results and reports. Not having lab results returned in a timely fashion almost certainly means many drug cases will be dismissed, maybe even DWI charges.
Here’s an interesting item the DA and the police must also attempt to obtain for the defense of the principal; any digital recording of the incident including contact information of witnesses who made the recordings on their personal devices, i.e. the people who constantly record things on their cell phones whether they are involved or not.
The most intrusive new rule of evidence is the right of the defense attorneys and the principal, upon court order, to visit, inspect and record the crime scene. Imagine you’ve already been the victim of a crime and you learn that you must allow the accused person back onto your property in order to better build their defense. This is certainly being victimized twice, but particularly in crimes against people such as murder, rape, and assaults.
In reality, what does all of this mean? I predict traffic tickets and the revenue generated by their fines will drop precipitously. Obtaining convictions for low-level drug crimes will be difficult because of crime lab capacity to conduct evidence analysis within 15 days. Almost by design, the state has not increased the funding and personnel at police crime labs, which makes the inference the technicians will have to prioritize their workload by most serious cases first.
At the county level, the Public Defender’s office is receiving a multi-million dollar defense grant supplied by the state to better defend their clients. Accepting this money will not put the county over the 2% Tax Cap. Even though the District Attorney’s salary is paid by the state, it is local tax dollars that pay for the operations and staff of the DA’s office. Funding the DA’s office properly is going to require some thoughtful monetary decisions by the Board of Supervisors. Soon the DA will soon be fighting with both hands tied behind his back while buried in administrative tasks commenced by the well-funded Public Defender’s office.
It is the cops who will probably take the brunt of the public’s displeasure when the effects of the new laws reach outward and touch crime victims. It will appear the police are hesitant to arrest people. Here’s an example using last week’s vehicle chase out of the city into North Norwich during which the fleeing suspect’s truck struck another vehicle. Had the run-away driver been caught at the end of this chase, he would probably be released on a ticket, even if he injured the innocent motorist he struck.
Law enforcement officers and members of the District Attorney’s Office are all in this together. They are professionals and they will adapt and develop strategies to best protect the public using the cards dealt them. The public needs to be patient and tolerant of the laws which are designed to ensure the freedom of criminals. This is a newly charted territory for everyone.
All of this should be expected when one political party, dominated by the New York City liberals, hold all the legislative power. In their rush to pass these new laws, never once were prosecutors, law enforcement, or crime victims’ advocates invited to the discussion. In reality, there was no discussion or legislative floor debate because like most laws in New York, these new laws were part of a budgetary process.
The self-fulfilling prophecy of this “justice reform” will be police making fewer arrests which in turn means fewer people in jail which in turn some people will interpret as crime rates going down. Then the people who enacted these laws will rejoice at the reduction and say “See? We told you going easy on crime works.”