How Many Ways Can New York Lawmakers Help Criminals? ‘Discovery reform’ helps spring defendants by burying prosecutors in paperwork. By Hannah E. Meyers
Criminals who should be in jail or prison are walking the streets of New York because prosecutors are being buried in a torrent of meaningless paperwork. In her State of the State address on Jan. 10, Gov. Kathy Hochul acknowledged the shortcomings of the 2019 bail reform passed by Albany lawmakers and signed by her predecessor, Andrew Cuomo. But she failed to mention “discovery” legislation, which passed the same year and is a key contributor to rising crime.
Criminal discovery traditionally encompasses material prosecutors might use at trial to prove guilt, which fairness requires they share beforehand with defendants. In 2019 Albany legislators began forcing prosecutors to turn over redundant or irrelevant material, such as police memo books void of substantive notes or body-camera footage from four officers, all capturing the same angle with nothing noteworthy. Further, prosecutors must collect, redact and turn all of this over within 20 days following arraignment, a task that progressive Manhattan District Attorney Alvin Bragg termed “herculean.”
Newly released 2022 data show Mr. Bragg was right. Overwhelmed prosecutors are successfully meeting these discovery obligations on a scant 3% of felony cases statewide. In New York City, prosecutors are almost never able to meet their obligations. They are simply too onerous.
While prosecutors scramble to assemble irrelevant discovery material, the state’s unique speedy-trial clock continues to run. After 90 chargeable days in custody clocked, felony defendants must be released. After six months total, their cases are eligible to be dismissed automatically. Misdemeanors are subject to similar requirements, with faster dismissal and release times. New York City case dismissals surged from 42% of disposed cases in the first 11 months of 2019 to 69% in the same period of 2021. The misdemeanor dismissal rate rose even more drastically, from 48% to 82%.
New 2022 numbers show prosecutors falling ever further behind the speedy-trial limitations, even as overall dismissal rates improved slightly. Whereas in 2019 less than 3% of all disposed cases statewide ended in speedy-trial dismissals, by 2022 the percentage of cases that timed out reached over 10%. In the first 11 months of last year, 31,527 cases were dismissed not out of considerations of justice but simply because overburdened prosecutors ran out of time.
The New York State Division of Criminal Justice Services surveyed New York City judges in the fall of 2022. More than 75% said that the new discovery obligations led them to grant more speedy-trial dismissal motions, and 45% asserted that the discovery law “greatly increased” the case dismissals when prosecutors could no longer beat the clock.
Statewide, the majority of judges in Supreme and County courts (where felonies are tried) report that the new discovery rules increased both speedy-trial dismissals and speedy-trial releases of defendants from custody. In New York City, 62% of judges throughout the court system reported the same—with 22% “greatly” increasing the number of defendants granted release from custody because prosecutors timed out.
In October 2022 I surveyed 30 of the state’s 62 district attorneys’ offices on the effects the 2019 discovery law has had on morale, staffing and recruitment. Trial attorneys consistently point to the Sisyphean amounts of paperwork associated with discovery as a reason for leaving the job. Lawyers become prosecutors to put away bad guys, not to fill out forms.
Inflated discovery obligations are expensive. In 2020 Albany lawmakers agreed to a $40 million discovery compensation fund for upstate agencies. New York City’s 2019 budget included $75.3 million to support discovery and other criminal-justice reforms. None of it has been enough. Ms. Hochul’s enacted budget for fiscal 2023 includes at least $65 million for discovery-reform implementation. The New York City Council’s preliminary 2023 budget allots $53.1 million toward criminal-justice reform implementation, including expensive discovery efforts. This money is going to pay for time-consuming compliance, not meaningful improvements to criminal justice.
In a leaked March 2022 budget draft, Ms. Hochul proposed tweaking discovery legislation to free prosecutors from compiling material with no “substantial” bearing on cases. The Legislature quashed this excellent idea a month later. In her speech to lawmakers last week, Ms. Hochul failed to mention either surging crime or amending discovery. For New York’s sake, hopefully she will still make both a priority.
Ms. Meyers is a fellow and director of policing and public safety at the Manhattan Institute.
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