A generation ago, New York Democrats and Republicans essentially agreed that police were good, laws necessary, and criminal disorder unacceptable.
Since then, however, the Empire State’s Democratic Party has been overtaken by ideologues who believe — despite all evidence — that criminal justice is systemically racist, all incarceration is misguided, and that investing endlessly in social services will rehabilitate all criminals.
In Albany, these dominant “progressives” have passed numerous laws based on the backward idea that chipping away at the robustness, flexibility, and efficiency of the criminal justice system will somehow make us safer.
But as the country tilts right, New Yorkers are getting fed up with the results of “reforms” that intentionally shifted the balance of power toward criminals and away from law and order.
Citizens are demanding more secure subways and fewer violently deranged men returned to public streets. And they are starting to connect New York’s abandonment of prosecuting low-level crimes with the city’s growing sense of danger.
Now a bill introduced by state senator and mayoral hopeful Zellnor Myrie and newly elected assemblyman Micah Lasher suggests that the stranglehold that progressive ideology has had on criminal justice policy may be weakening.
In an op-ed last week, preeningly progressive Myrie and the more tempered Lasher acknowledged the damage caused by New York’s far-reaching 2019 discovery “reform.” The past five years have seen a staggering 21% increase in the rate of criminal cases getting dismissed. They even conceded that there are “fewer cases going to trial — less than one-half of 1%” as one of the “results of discovery reform.”
In reality, these admissions just scratch the surface of how much our discovery law tilted the scales of justice away from crime victims and toward criminals.
The 2019 law mandates that local prosecutors quickly gather a mountain of “evidence” for every case. While this sounds reasonable, the law’s absurd collection standard includes everything “related” to a case— not just what’s pertinent or substantive.
So prosecutors must find things like empty police memo books and redundant surveillance footage — and then certify they’ve been reviewed before turning it over to defense attorneys.
Defense attorneys, however, do not have to affirm they’ve reviewed such “evidence.”
The result: As I revealed two years ago, defense attorneys were failing to appropriately review prosecutors’ discovery packages in 60% of cases — an accusation unchallenged by the New York State Association of Criminal Defense Lawyers.
This imbalance is why discovery has made us less safe. Overburdened prosecutors lack the bandwidth to endure this process for each case, so they toss out mostly low-level cases.
In New York City, prosecutors dismissed an astounding 26,000 more misdemeanors last year than in 2019, pre-discovery law. That’s domestic violence, driving drunk, shoplifting, and fare evasion offenses for which offenders faced zero consequences.
Not only that, because evidence collection is tied to New York’s “speedy trial clock,” if prosecutors miss the deadline, cases are almost automatically tossed out.
Even when prosecutors do file on time, clever defense attorneys can still exploit the “speedy trial clock” to force dismissals. In fact, a leaked Legal Aid Society internal document from 2021 urged: “defense lawyers should not cease [italics in original] raising” discovery-related issues to now get such cases tossed.
This has resulted in an astonishing quadrupling in these “speedy trial” dismissals statewide. In New York City, a full 33% of misdemeanors were dismissed last year because prosecutors ran out of time to collect “evidence.”
This stunning breakdown in prosecution was not accidental: progressive legislators anticipated and celebrated this goal. In the law’s implementation hearings, presiding senator Jamaal Bailey admonished: “Law enforcement should be treating arrests and prosecutions as limited resources, and thinking about discovery implementation as an opportunity to . . . shift many cases out of the system completely.”
Why are we no longer punishing misdemeanors? Our ideological legislators don’t think we should!
However, Myrie and Lasher’s new bill does signal a shift — at least in rhetoric. Their proposed law would provide prosecutors with direct access to essential police records.
This is a reasonable idea, although it would make more sense as a funded project than as a law and raises myriad logistical and legal questions.
It also signals awareness that a fight over “discovery” looms for New York’s upcoming budget negotiations; indeed Gov. Hochul this week listed her own discovery reform proposal first in her criminal justice agenda released alongside her annual State of the State address.
But more importantly, the bill would still leave the scales of justice tilted toward criminal defendants —because their attorneys would still not be obligated to take time to review evidence required of prosecutors.
That’s why the Legal Aid Society ringingly endorsed the Myrie/Lasher bill: it keeps law and order handicapped.
While Albany seems primed to inch the Democratic Party back from its “progressive” extremes, voters should demand two key amendments to the discovery law that would actually restore safety. First, prosecutors should only need to collect evidence relevant to the crime.
For the 0.5% of cases that go to trial, broader evidence collection can still be mandated.
Second, discovery collection should be decoupled from the state’s “speedy trial” clock to prevent cases from being tossed when justice demands otherwise.
New York thrives when both sides of the aisle agree: advantaging criminals over prosecutors is bad policy.
Hannah E. Meyers is a fellow and director of policing and public safety for the Manhattan Institute.
