New York Adopted Pretrial Reforms. Its DA Races Will Decide Who Implements Them.
New York DA candidates starkly disagree on bail and discovery reforms in Queens and three upstate counties, Dutchess, Monroe, and Ulster.
Daniel Nichanian | October 10, 2019
This article originally appeared on The Appeal, which hosted The Political Report project.
DA candidates starkly disagree on the state’s bail and discovery reforms in Queens and in three upstate counties, Dutchess, Monroe, and Ulster.
When New York reformed its criminal legal system in the spring, it did so over the objections of the District Attorneys Association of the State of New York (DAASNY), the group that represents state prosecutors. DAASNY lobbied against the state’s new laws, which include limits on cash bail and new requirements that prosecutors quickly disclose evidence.
State DAs are now responsible for carrying out these changes smoothly. In most jurisdictions, those will be the same DAs who are now raising fears about the reforms’ effects and signaling that their compliance will be partial at best.
But some counties are voting for their DA on Nov. 5, most notably Monroe County (Rochester), where the president-elect of DAASNY is up for re-election.
These elections will decide who implements the new laws, and who lobbies for or against future ones, in some of the state’s most populous upstate jurisdictions, as well as in Queens.
“If district attorneys are actively resisting implementing the spirit of the reforms, they can really throw a huge wrench in the process and undermine the intent of these new laws,” said Scott Levy, the chief policy counsel at the Bronx Defenders.
Nick Encalada-Malinowski, an organizer with VOCAL-NY, agrees. “If you have people who, as DAs, say, ‘This is a way to have a more transparent system, a fair system, fewer people in jail that’s a good thing,’ … that is very different than people who have been in opposition and are now saying the laws are dangerous,” he told the Appeal: Political Report.
Bail reform will expand pretrial release and end the use of cash bail starting Jan. 1, but only for people charged with misdemeanors and some felonies. Levy thinks some prosecutors could choose to “upcharge, charge people with more severe crimes more frequently, in order to be able to ask for pretrial detention.” Discovery reform could run into DA pushback as well. The new law, also starting Jan. 1, requires that prosecutors share evidence like witness statements within 15 days of a defendant’s first court appearance. But it provides for exceptions that prosecutors will invoke with varying frequency. Some DAs might “look for loopholes” to “not disclose critical information,” Levy said, and not “turn information over without putting up a fight in every single case.” Nicole Triplett, a policy counsel at the New York Civil Liberties Union, shared similar concerns on both fronts about prosecutors about how prosecutors could “circumvent the laws;” she added that prosecutors skeptical of pretrial reform may recommend more restrictive nonmonetary conditions for release, such as electronic monitoring, than is warranted.
Right now, New York prosecutors face no requirement to disclose information until before a trial. Defendants routinely plead guilty without ever getting access to the evidence against them, and without anyone (including prosecutors) having had to spend any time reviewing its accuracy.
Pretrial detention also creates pressure to plead guilty. Studies show guilty pleas are significantly likelier when defendants are detained over an inability to pay bail.
As such, New York’s new limits on bail and its new 15-day disclosure window greatly restrict prosecutors’ pretrial leverage. For Levy, this explains DAs’ yearslong campaign to stymie the reforms. “They are fighting giving up power they have exercised for years in an unchecked way,” he said.
David Clegg, a trial attorney in Kingston, agrees that prosecutors “tend to be status quo, they tend to want to protect their turf, they tend to not increase transparency.” He is running for DA in Ulster County. “You need more of a progressive view than there is in the DAASNY world,” he told the Political Report.
In fact, some of the prosecutors in DAASNY’s leadership are up for re-election this fall.
Monroe County DA Sandra Doorley, DAASNY’s president-elect, says the new pretrial laws amount to “catch and release.” She is facing Shani Curry Mitchell, a former prosecutor who told the Political Report that Doorley is using “scare tactics” and that the phrase “catch and release” is “offensive.”
Mitchell spoke to the Political Report in favor of these two reforms in March and again this week. Doorley did not respond to repeated requests for comment on her views on pretrial reform.
Other upstate jurisdictions feature similar contrasts, especially Dutchess County (Poughkeepsie) and Ulster County (Kingston). William Grady, who has championed punitive policies during his tenure, is seeking a ninth term as Dutchess County DA. In Ulster County, voters will replace DA Holley Carnright, a longtime critic of criminal justice reforms who is retiring.
To be sure, none of these races have broken out as Queens did over the summer, when borough president Melinda Katz secured the Democratic nod against public defender Tiffany Cabán. That election is not over either: Katz, who committed during the primary to end cash bail and institute open-file discovery, now faces Republican Joe Murray, who opposes both pretrial laws and says he wants more “law and order.”
Still, advocates say elections in upstate New York present their own set of issues.
“I’m pretty optimistic in New York City, where we have … a lot of ways to hold the judges and DAs accountable,” Encalada-Malinowski said in reference to implementation of the new reforms. “In upstate New York, a lot of that infrastructure does not exist. I don’t know how folks will be held accountable. From what I’ve seen of the state government, it doesn’t seem like they have a plan for going county by county and saying, ‘Hey, this person is being held illegally right now,’ or saying, ‘Hey, you’re not allowed to set bail on that person.’”
An NYCLU report released last year found widespread pretrial detention over low-level charges in upstate counties.
Below, the Political Report probes candidates’ views on new reforms in three upstate counties.
Doorley, the Republican DA of Monroe County (a county of about 750,000 residents) has spoken against the pretrial reforms throughout 2019. She has faulted them for not adequately considering victims and warned against ending cash bail and pretrial detention over lower-level offenses. “I hate to use this expression but it’s going to be catch and release,” she told Spectrum News. “And then they can go do it again. Catch and release, catch and release.”
Her Democratic challenger, Mitchell, has defended the reforms. In March, when bail and discovery reforms still sat in the legislature, she said she would introduce them in her office if they did not pass statewide.
She told the Political Report this week that she finds “catch and release” to be an “offensive” phrase, tied to the Trump administration’s immigration rhetoric, and that some DAs’ stated fears about safety did not match her expectations. The law lets judges “ensure that the community is safe, while also ensuring that the rights of the accused are protected,” she said. She also described a plan to meet the new discovery rules by providing “the entire file upon receipt from the law enforcement agency,” and moving “files to a digital system that will allow access to the defense as needed.” But Mitchell also opposes further reforms that some state advocates are demanding, namely mandating a timeline speedier than 15-days and banning cash bail for the higher-level offenses not covered by the 2019 law.
Since he was first elected DA of Dutchess County in 1983, Grady has frequently spoken against criminal justice reforms. In 2009, when lawmakers repealed the punitive Rockefeller drug laws, Grady defended those statutes, arguing that mandatory minimums and harsh sentencing options had helped prosecutors avoid what he called the “turnstile justice” of “the early 1970s.”
That worldview, which privileges aggressive incarceration as a response to illegal behavior, has again colored Grady’s response to the 2019 reforms. Reducing pretrial detention is “a serious risk to public safety” and will make DAs “lose jail as leverage at the time of arrest,” he warned this year. In 2018, when the NYCLU sued over the county’s practice of detaining hundreds of people for weeks over minor offenses for not being able to afford cash bail, Grady fought the lawsuit, though he did not appeal when a judge ruled against the county and for the NYCLU.
Triplett, of the NYCLU, argued in an interview this week that drawing a link between ending bail and crime is “deeply problematic” because “money bail never guaranteed safety,” so much as ensure that the wealthy, and only the wealthy, benefited from the presumption of innocence.
Grady’s Democratic challenger Richard Berube advocated for pretrial reform in the spring. He joined a letter of former prosecutors that asked lawmakers to strengthen discovery rules. “Open and early discovery in criminal cases can be part of a safe and effective criminal justice system,” the letter says, adding that slow disclosure causes wrongful convictions. Berube has also faulted Grady over pretrial detention. Neither Grady nor Berube answered requests for comment.
With Carnright retiring after three terms as DA in this county of about 180,000 people, his chief assistant Michael Kavanagh is running to replace him as the Republican nominee.
He has laid out an approach to prosecution that, like Grady’s, treats incarceration as a necessity in the face of addiction and of the range of offenses covered by the bail law. In a July op-ed, he warned that greater pretrial release for people charged with drug possession and residential burglar” will “seriously jeopardize the safety of our community,” and that detaining people with addiction issues has the benefit of keeping them away from “the same environment in which their addiction has thrived.” Jails are dangerous spaces for people with addiction issues, however. Kavanagh did not reply to questions about these views, nor about his stance on discovery reform.
By contrast, Clegg, the Democratic nominee, says he “strongly” supports the bail and discovery laws. “There’s fear-mongering going on by some DAs and law enforcement folks about all the crimes that people will be able to get away from,” he said. He added, however, that it would have helped assuage prosecutors’ concerns if lawmakers had enabled judges to hold people pretrial on the basis of “dangerousness” assessment. (There already was no such option before 2019.)
Downstate, blind spots for electoral competition but a promise of new priorities
Downstate, the electoral landscape did not prove propitious for reformers. Nassau County DA Madeline Singas is a DAASNY vice-president, and she expressed misgivings about the bail and discovery reforms in the spring, but she is now running against Francis McQuade, a Republican who told the Political Report he firmly opposes both, though he would abide by them. (Singas, a Democrat, did not answer a request for comment.)
And in New York City, no one even filed to challenge the DAs of the Bronx and Staten Island. In fact, a majority of all of New York’s 25 DA elections drew only one candidate, in spite of their potential impact on the pretrial reforms’ implementation.
Beyond just complying with the reforms, reform-minded DAs can also promote the “spirit of the law,” Triplett said, characterizing this as “undoing the harm” of damaging pretrial policies. Many DAs are instead signaling it will take scrutiny just to get them to meet the reforms’ minimum mandates.
Bronx DA Darcel Clark has already said she lacks the capacity to disclose evidence in a timely manner, and that she will not hand over all discovery within the 15-day window. Other DAs have echoed that claim, and asked the state for more funding.
But Levy, of the Bronx Defenders, thinks complaints about logistics miss the point. Prosecutors were only able to churn as many cases as they did because they did not treat defendants fairly, he argues, for instance securing pleas without needing to probe the evidence. “This is going to force them to be more thoughtful about how to prioritize those resources,” he said. “It’s a forced reevaluation… Bringing a new prosecution is no longer costless.”
“What they’re saying is, ‘There’s just too much fairness, we can’t afford to do all this fairness,’” Levy added about the critical DAs. “What these reforms really say is that you aren’t allowed to prosecute someone unless you are able to provide this transparency and fairness. If you can’t, maybe you shouldn’t be bringing all these cases in the first place.”
Cabán’s bid to be Queens DA was centered on commitments to shrink the criminal legal system and to “prosecute less,” rather than prosecute differently. Some of those aims could still come to fruition statewide due to New York’s incoming laws forcing a reshuffling of resources, if they are thoroughly implemented.