meanwhile, in Albany

Kevin Stadelmaier, Legislative Chair

In April 2019, after years of diligent efforts and extraordinary advocacy from stakeholders all across the state, NYSACDL and the criminal defense community as a whole celebrated landmark changes in NYS bail and discovery legislation. This legislation, widely regarded as the most progressive step toward rectifying the significant inequities built into the NYS criminal justice system, both substantially reduced the number of persons subject to pre-trial incarceration while at the same time lifted the barriers to early and fulsome discovery in virtually all criminal cases in NYS.

However, while the criminal defense community celebrated, “pro-rollback” lawmakers from both parties as well as law enforcement immediately began a campaign to undo the hard fought reforms. Throughout the late spring and summer, as we prepared the logistical underpinnings of taking on the new reforms, the opposition was already working hard to make revision of the reforms their signature issue of the next legislative/election cycle.

Kevin Stadelmaier is Chief Attorney for the Legal Aid Society of Buffalo, and Chair of the NYSACDL Legislative Committee.

The NYSACDL Legislative and Lobbying Committee (“NYSACDL L&L Committee”) met in late August to formulate their priorities for the 2020 legislative session. Obviously looking to build on the momentum of the previous year’s victories, we sought to focus on things other than bail and discovery changes. Among the other issues on our agenda for 2020 were:

Repeal of Civil Rights Law 50-a. Long regarded as among the most damaging statutes in the NY,

Code, 50-a has shielded from public view evidence of police misconduct. Without a court order, law enforcement agencies were not required to disclose records of their employees’ official misconduct. NYSACDL sought repeal of this legislation in order to allow “sunshine” on bad actors in the law enforcement community and bring a level of heretofore seen accountability.

Increase of the “Youthful Offender”

age to 21. Increasing the age at which a young person could take advantage of record expungement of certain offenses was a key priority. Allowing those convicted of crimes at a young age to nevertheless lead productive lives, without the collateral consequences and stigma of a conviction, was seen by our committee as absolutely necessary.

Amendment of CPL 60.45 (Coer

cive Interrogation). The issues of false confessions has long been a major one in criminal defense circles. Currently, law enforcement are not prohibited from creating false impressions regarding evidence in hand, or making false promises to those interrogated, for the purpose of extracting confessions. We sought an amendment of these practices to prohibit law enforcement from misrepresenting evidence or circumstances with the hope that same would lead to a significant reduction in false confessions.

Increase in 18-b rates. 18-b rates in NYS have been frozen since 2004 at $75/hour for felonies and $60/hour for misdemeanor cases together with limits of $4400/$2200, respectively. Obviously the cost of living and practicing in NY has outstripped these amounts. In order to continue to attract high quality attorneys for those requiring representation by panel attorneys, NYSACDL sought to advocate for a substantial increase in the rates, together with a yearly increase benchmarked to COLA adjustments. Obviously, this was a very aggressive agenda, especially in light of the expansive bail and discovery reforms won the year past. However, with a Democratic majority in both Houses and the Governor’s mansion, we surmised that there was a high probability we would be successful on at least some of these issues.

Unfortunately, almost immediately after our priorities were announced, it became clear that bail and discovery were once again going to be the major legislative issue of 2020. Coordinated efforts by law enforcement and the District Attorney’s Association were effective in frightening newly elected Senators from traditionally Republican districts. These scare tactics placed us and other criminal defense reform coalitions on the defensive.

In Legislative and Lobbying Committee meetings in September and October, despite our willingness to advocate for the aforementioned priority items, we faced the real possibility of bail and discovery rollbacks. By that time, law enforcement and its surrogates had already begun a robust media disinformation campaign aimed at overturning the legislation even before it had taken effect. While the criminal defense community as a whole was preparing for the “new world” of pre-trial releases and early, voluminous discovery, behind the scenes momentum was building for an all-out attack from the opposition.

As such, our Committee turned its attention to focus on protection of the new bail and discovery legislation, even before its effective date.

On October 28, 2019, NYSACDL Legislative and Lobbying Chair Kevin Stadelmaier testified before the Senate Standing Committee on Codes regarding the benefits of pre-trial discovery reform. He, along with defenders from across the state argued persuasively that the benefits of the new legislation would be substantial and, upon implementation, self-evident.

On November 20, Kevin Stadelmaier and NYSACDL Lobbyist Jennifer Richardson met with Senate Codes Chair Jamaal Bailey and Assembly Codes Chair Joe Lentol at their respective Bronx and Brooklyn offices. Both had been champions of the new reforms and we urged them to remain strong against the building opposition. They indicated their continuing support for the reforms and remained staunch advocates throughout the 2020 legislative cycle.

At the same time, other L&L Committee members such as Yung Mi-Lee, Alice Fontier, Derek Andrews, Amy Marion and Greg Lubow, were advocating for “no rollbacks.” Committee members contacted various local and statewide officials urging them to remain firm. Through our membership on various statewide coalitions we continued to forcefully advocate for the reforms.

As legislated, the new reforms took effect in January and had an immediate positive effect. Clients charged with misdemeanors and non-violent felonies were being allowed to remain free pre-trial. Earlier and more meaningful discovery was realized. Despite erroneous claims of deleterious societal effects stemming from the release of persons charged pre-trial, the facts demonstrated the contrary. Jail populations began to plummet statewide. Rising crime rates, long cited by the opposition as a predicted negative effect of bail reform,

failed to materialize. Bench warrant rates remained steady or declined.

However, despite objective evidence of greater fairness and cost savings, the conservative chorus for “rollbacks” continued and even intensified.

On January 23, approximately three weeks after the reforms went into effect, a delegation from NYSACDL L&L, including Yung-Mi Lee, Derek Andrews and Amy Marion met with top Assembly and Senate staff to discuss the impacts of the reform on our clients and practice and how we could best support the houses in holding firm on the new reforms. During these discussions, we were regrettably informed to expect further compromise on this issue.

At that point, the main thrust of the “rollback” position had now coalesced into a move to provide Judges more discretion in determining a given defendant’s dangerousness to the community as a factor in determining bail. NYSACDL seized upon this notion and fought extremely hard against it. With no specified criteria for determining “dangerousness,” allowing Judges to exercise their own subjective “discretion” in determining if an individual would present a danger to his/her community was unacceptable and would constitute a significant setback to bail reform. Retreating to that position from where the reformed statute currently sat was an untenable position, and one we could never countenance. had become even more clear that despite the fear mongering and disinformation of law enforcement, the reforms were working as intended. However, fear continued to outpace facts

In addition to the Lobbying Days, Chair Kevin Stadelmaier testified at a Republican sponsored bail roundtable on February 6 th . In February, Legislative Committee Members Yung Mi-Lee and Amy Marion met with potentially vulnerable Democrat electeds in an effort to assist them in holding firm against any rollbacks.

In the ramp up to budget discussions in March, conference calls were held daily with NYSACDL L&L members and statewide partners Plans for additional lobby days at the end of March in the lead up to the budget votes were unfortunately stymied by the outbreak of the Coronavirus. However, despite the fact that “in person” meetings were impossible, communications to the Legislature, both direct and indirect, continued. Op-Eds were written, letters were circulated, phone calls and e-mails were sent daily, imploring them to remain firm on bail and discovery reform.

Alas, despite all these efforts, the legislature ultimately decided on changes to both the bail law and the discovery law. However, the changes, while in our view unnecessary, and certainly damaging to the pre-trial release prospects of many defendants, did not go as far as the rollback proponents had wished. custody status. In prosecutions involving traffic infractions or municipal code petty offenses disclosure is not required until 15 days before trial. And prosecutors have now gained troubling, if not unconstitutional, authority to withhold the identities of 911 callers, as well as victims and witnesses in sex offense and gang-affiliated cases.

In response to the information obtained on January 23, NYSACDL L&L intensified our efforts. On February 11 and 26, we held “Lobbying Days” in Albany and in meetings with over 20 legislative members, we continued to push for no rollbacks to the reforms. By that time, it However, the legislature has significantly scaled back the “early, open and automatic” framework of the discovery law. The timeline for initial discovery has been extended and bifurcated from fifteen days to either twenty or thirtyfive days depending on the defendant’s Additionally, the legislature amended the qualifying offense “bucket” to include additional offenses that had been non-qualifying under the January 1 st , 2020 legislation. Frequently charged crimes that will now become qualifying offenses include: criminal obstruction

The amendments also clarify that physical/mental/scientific tests do not have to be turned over until they are completed. And, proficiency tests are limited to only a list, rather than the tests themselves.

Finally, the amendments attempt to clarify the validity of certificates of compliance by injecting a “reasonableness” standard and stating the obvious –that a Certificate is still valid even when evidence is lost or destroyed or otherwise unavailable. A new, undefined standard of “special circumstances,” rather than “exceptional circumstances” now applies in the context of discovery as it relates to the Prosecution’s trial readiness.

The legislature has also scaled back the historic 2019 bail reform laws by reclassifying dozens of crimes as “qualifying offenses” for purposes of bail or, when the charge is a felony, possible remand. The legislation also gives judges additional authority to set non-monetary conditions of release, including restrictions on associating with “victims, witnesses or co-defendants” (the last condition is probably unconstitutional).

of breathing or blood circulation when committed against a member of the defendant’s same family or household, bail jumping, all Class A-I drug felonies, and burglary in the second degree [Penal Law 140.25 (2)], which is now a qualifying offense when the defendant enters the “living area” of a dwelling.

The legislature further clarified that courts have authority to set bail or remand (felonies only) following conviction and pending sentencing on a non-qualifying offense. A qualifying offense now includes “any crime that is alleged to have caused the death of another person” [CPL § 510.10 (4) (j)]. This categorical change will include homicide charges under Penal Law Article 125 that previously were non-qualifying offenses because they are classified as nonviolent felonies (e.g., manslaughter in the second degree, criminally negligent homicide).

Furthermore, some of the reclassifications are more troubling and their implications are unclear. For example, two sequential charges (felonies or misdemeanors) involving an undefined “harm” to persons or property will give judges discretion to set bail in otherwise non-qualifying offenses. Also, when a defendant “qualifies as a persistent felony offender” and is charged with a non-qualifying felony, the court may now set bail. Finally, a court can set bail when a defendant is charged with a felony while on probation or postrelease supervision.

While the L&L Committee is certainly disappointed the Legislature chose to amend the law without giving the original reforms time to reveal the positive gains in greater detail, we are pleased that the “discretion” on dangerousness did not make it into this year’s amendments. Accordingly, while we can’t quite claim victory, we can take pride in defeating that counterproductive measure.

As we approach the end of the session, we are hopeful that this battle on bail and discovery, for now, has ended and that we can move on to many other criminal justice priorities to improve the fairness of our system of justice and our practice of law. Rest assured that the NYSACD L&L Committee will continue to remain vigilant in defense of any attacks on the rights of our clients and continue to seek improvements to criminal defense advocacy. A

MARTIN B. ADELMAN April 4, 1943 - May 10, 2020

The officers, directors and past-presidents of NYSACDL are deeply saddened to note the passing of past-president and founding member of NYSACDL Martin B. Adelman. Marty was a mentor and friend to all who had the privilege to know him. Rest in peace.