Assemblywoman Fernandez Passes Crucial Criminal Justice Reforms to Promote Fairness, Increase Faith in the System

June 12, 2018

Assemblywoman Fernandez (D-Bronx) announced that she helped pass sweeping criminal justice reforms to promote fairness and transparency, including measures to limit the use of solitary confinement, prohibit racial profiling and reform the cash bail system. This legislation builds on last year’s Raise the Age law, which raised the age of adult criminal responsibility from 16 to 18 and prohibited juvenile defendants from being placed in an adult facility.

“For far too long, our criminal justice system has meted out unfair and unequal sentences and failed to ensure that justice is truly served, especially for minority communities and the poor,” said Assemblywoman Fernandez. “This inequality erodes trust, undermines the very freedoms that our nation was founded on and continues the vicious cycle of poverty and crime. The critical reforms passed by the Assembly will address some of these persistent failings and help ensure that all New Yorkers are treated fairly and equally under the law.”

Reforming New York’s broken bail system

Up to 60 percent – and up to 75 percent in New York City – of inmates in local jails are awaiting trials, not serving a sentence.1 Economic barriers should not determine whether a person who has only been accused of certain offenses – not convicted – is stuck sitting in jail, noted Assemblywoman Fernandez. To remedy this injustice, the Assembly passed a bill that would eliminate cash bail in most instances for those charged with misdemeanors and nonviolent felonies and require the court to impose the least restrictive alternative that would reasonably assure the defendant’s return to court (A.10137-A).

In addition, the Assembly passed a measure to lift certain restrictions in current law on the activities of charitable bail organizations, allowing these groups to post bail of up to $10,000 and operate in more than one county in the state (A.4880-A). These organizations provide a possible release option often coupled with social services and charitable aid that can assist lower-income individuals and help assure their attendance in court as their cases proceed.

“Our current bail system creates a two-tiered justice system – one for the haves and another for the have-nots,” said the Assemblywoman. “It’s unconscionable that we continue to lock up some individuals solely because of their inability to pay, while the Paul Manaforts of the world are released to their luxurious homes. This measure will help us begin to address this glaring inequality at the heart of our state’s court system.”

Assemblywoman Fernandez noted that individuals who cannot afford bail often lose their jobs, fall behind on rent and bills and are pushed further away from stability and economic security as they sit in jail.

The package also includes a bill that would allow the court to waive certain surcharges and fees for defendants under the age of 21 if they would impose undue hardship or prevent successful reintegration, or where the waiver would be in the interests of justice (A.9786).

Limiting the use of solitary confinement

The overuse of solitary confinement is both dehumanizing and ineffective, while failing to meet our primary objective of keeping people safe, noted the Assemblymember. Thousands of inmates are subjected to solitary confinement in New York State – a disproportionate percentage of whom are people of color – for weeks or years at a time. Studies have shown that the overuse of solitary confinement leaves inmates with lasting physical and mental scars.2

The Assembly passed a measure that would prohibit placement in segregated confinement of vulnerable inmates, including those who are 21 years of age or younger, 55 years of age or older, mentally, physically or intellectually disabled, pregnant, in the first eight weeks of postpartum recovery, or in a jail or prison newborn nursery program (A.3080-B). For all other inmates, the bill would enact strict limits on the use and duration of solitary confinement.

Ensuring speedy trials, reforming discovery laws and grand jury proceedings

New York is one of only 10 states that allows prosecutors to withhold critical evidence, including witness names and statements, until the day a trial begins, putting defendants at a severe disadvantage.3 These highly restrictive discovery rules leave defendants in the dark and can make it nearly impossible for them to make rational decisions regarding their cases, weigh plea offers or develop trial strategies, noted Ms. Fernandez.

To reform these antiquated rules, the Assembly passed legislation that would provide for early and more robust exchange of information in criminal prosecutions (A.4360-A). This measure would implement many recommendations by expert panels and bar groups in New York and reflects the broader, expedited discovery of evidence approach that has long existed in many states throughout the nation. The plan would preserve current law that allows a protective order to be obtained to prohibit, condition or limit disclosure of evidence when there is a belief that sensitive information could be used to threaten or intimidate a witness. Assemblywoman Fernandez noted that reforming the state’s discovery rules would help innocent or over-charged defendants fairly prepare for trial as well as encourage guilty defendants to plead guilty without needless and costly delays.

Another measure would help ensure speedy trials by requiring judges to inquire as to whether the prosecution is, in fact, ready for trial when the prosecution claims readiness (A.3055-A). Under New York’s statutory speedy trial rules, the prosecution must generally be “ready for trial” within six months for a felony charge and 90 days for a misdemeanor charge. The right to a speedy trial is a constitutionally guaranteed right, but far too often the wheels of justice grind much too slow, noted the Assemblywoman. The bill, known as “Kalief’s Law,” is named after Kalief Browder who was imprisoned at age 16 for nearly three years at Rikers Island awaiting trial over a stolen backpack. The charge was ultimately dismissed and he later died by suicide.4 Browder’s case was not an isolated incident. In 2015, more than 400 inmates had already spent two years behind bars without being convicted of a crime.5

The legislative package also includes a measure to increase transparency in grand jury proceedings when a court determines disclosure of certain information is in the public interest (A.9787). The proposal would allow the court to release certain grand jury information in cases where a felony indictment is not returned by the grand jury. The court would be required to afford the prosecutor or any other relevant persons the opportunity to be heard, consider several factors in determining whether or not disclosure is appropriate and redact personally identifying information. The bill would also implement a long-overdue, commonsense change: It would allow the judge to be present in the grand jury room, and thus be available to help assure the fairness of these closed-door proceedings.

Putting more New Yorkers on a path to success

The Assembly also passed several measures to combat discriminatory and unfair practices that keep New Yorkers within the criminal justice system or prevent successful reintegration into society. One bill would require law enforcement agencies to adopt written policies prohibiting racial and ethnic profiling, develop procedures for complaints and corrective action and require the collection and reporting of data about motor vehicle and pedestrian stops by agency personnel (A.4879). It would also empower the state Attorney General and individuals who have experienced racial or ethnic profiling to seek a court order banning these practices and, where appropriate, to seek an award of monetary damages against a law enforcement entity that engages in racial or ethnic profiling.

The Assembly also passed a bill that would provide for the automatic sealing of the records of certain low-level convictions for possession of marijuana and prohibit the waiver of such sealing as part of a plea agreement in order to avoid the unfair stigma of a lifelong criminal record (A.2142).

The Assembly criminal justice package also includes a bill that would expand the availability of judicial diversion for treatment to include additional types of charges, such as conspiracy in the fourth or third degree, auto stripping and certain identity theft crimes (A.4237). Individuals charged with these offenses are sometimes addicted to drugs or alcohol and commit these crimes to support a drug or alcohol habit, noted Assemblywoman Fernandez. This would allow courts to order such individuals to treatment and upon successful completion, dismiss the criminal case so they can continue on the road to recovery.

And, in an effort to help promote rehabilitation and prevent recidivism, the Assembly passed a measure to “Ban the Box,” or delay a potential employer’s inquiry about an applicant’s criminal history record (A.2343). The potential employer could inquire about criminal history only after making a conditional offer of employment. The measure does not apply when a federal or state criminal background check is required or permitted by law.

Promoting transparency and accountability

To help instill greater confidence in our criminal justice system, the Assembly passed a bill that would establish an Office of Special Investigation within the office of the New York State Attorney General to investigate when a civilian dies either in law enforcement custody or after an encounter with a law enforcement officer (A.5617). District attorneys and the police regularly work closely together in investigating criminal conduct. The new office would provide for independent investigations and independent prosecutions, where warranted, in such cases when police conduct is under review as a means to address what otherwise may be a significant conflict of interest.

The bill would also require the court to disclose the charges and the legal instructions submitted to the grand jury in such cases when there was grand jury consideration but no indictment. The court would provide the prosecutor an opportunity to be heard on the matter and the court would redact personal identifying information before disclosure.

“When a civilian dies as the result of an encounter with police, we must ensure that the investigation can proceed without even the appearance of impropriety,” said the Assemblywoman. “By increasing transparency, we can address the grave threat that public distrust poses to New York’s criminal justice system.”

Improving data collection to better evaluate criminal justice policies

The Assembly also passed the STAT Act, which would provide greater transparency by collecting and publicly reporting critical policing data from across the state (A.5946-A). It would require the chief administrator of the courts to compile data on misdemeanor offenses and violations, broken down by county, and share the information with the Legislature and the public. These reports would provide metrics to evaluate the effectiveness of existing criminal justice policies.

The measure would also require the chief of every police department, every county sheriff and the superintendent of state police to promptly report to the Division of Criminal Justice Services (DCJS) all arrest-related deaths.

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1. nytimes.com/2018/02/11/nyregion/judge-says-new-yorks-bail-law-treats-poor-unfairly.html

2. sentencingproject.org/news/opinion-solitary-confinement-widespread-ineffective

3. nytimes.com/2017/08/07/nyregion/defendants-kept-in-the-dark-about-evidence-until-its-too-late.html

4. teenvogue.com/story/kalief-browder-incarceration-docuseries

5. huffingtonpost.com/2015/04/14/rikers-island-de-blasio-justice-reboot_n_7065438.html