By Greg McCaffrey
Effective January 1, 2020, New York State abruptly instituted a series of dramatic changes to its criminal justice system. Significant changes that included the limited ability to incarcerate defendants; changes to bail and jail eligible offenses; mandatory release of some presently incarcerated inmates; strict mandates on disclosure of information by law enforcement agencies and prosecutor’s offices; unfunded directives towards local municipalities; and, a complete unwillingness from state government to review or reconsider these substantive changes that were adopted without due deliberation, debate and input from the necessary stakeholders.
These changes, commonly referred to “2019 Criminal Justice Reform”, are not appropriately captioned. To reform something, means an improvement or amendment of what is wrong, corrupt or unsatisfactory. The impending changes go too far, are a solution devoid of a problem (at least in upstate New York) and are better titled Criminal Justice Overreaction. As an elected District Attorney, I will be quick to agree that our criminal justice system is not perfect, that changes are warranted, and that the system could be improved. I fully support changes to the criminal justice system, but changes that negatively impact victims, place undue burdens on law enforcement, allow repeat offenders to remain at liberty and could increase crime are unwarranted and go too far.
Under these new laws, individuals charged with most felonies will no longer be incarcerated upon being charged with these offenses. While the theory of not incarcerating a person who maintains the presumption of innocence is noble, the law has been drafted to allow repeat offenders, individuals with lengthy criminal histories, and some charged with violent felony offenses to remain free. These laws also grant these offenders greater access to victim information, including their address, phone number and prompt disclosure of their statements and grand jury testimony unless a protective order is sought and then granted by the court. These laws are an open invitation to witness tampering, witness intimidation and trepidation by both victims and witnesses in coming forward.
Under the new law, a person charged with a residential burglary (breaking into someone’s home and committing a crime) is no longer eligible for incarceration upon arrest. Under the new law, when two or more people forcibly steal property from another person, commonly known as Robbery in the Second Degree, the person will remain at liberty pending resolution of the matter in court. These two crimes are punishable by up to fifteen (15) years in state prison for even a first offense. In the case of domestic violence, the perpetrator can be arrested, arraigned by a judge with an order of protection issued, but they will no longer be able to be incarcerated upon arrest. Furthermore, to complicate the resolution of these criminal cases, the new laws fail to adequately address individuals who fail to appear for court, impose new mandates on when warrants can be issued by the court and even go as far as to grant defendants and their attorneys access to the scene of the crime, which could include someone’s home.
In New York State, we have been fortunate that our justice system has historically been able to balance the rights of those accused of crimes with those of have fallen victim to the crimes and those members of law enforcement who are sworn to serve and protect these laws. Further, the system has been built to allow a prosecutor to ensure that justice is done, a duty we are sworn to uphold. These criminal justice changes have destroyed this balance, the consequences to our community will likely be significant, and as we wait to see what happens with these new reforms we can only hope for the best, but be prepared for the worst.
Greg McCaffrey (D-C-I-WFP, Livingston County) was first elected to the office of District Attorney in 2012. He is currently in his second term.