2018 State of the State Proposals

Governor Andrew M. Cuomo recently announced the 22nd proposal of his 2018 State of the State agenda - a sweeping, five-pronged reform package to overhaul the State's criminal justice system. This comprehensive package - the most progressive set of reforms in the nation -- will guarantee fairness for the accused by reshaping New York's antiquated bail system, ensuring access to a speedy trial, improving the disclosure of evidence in the discovery process, transforming asset forfeiture procedures and implementing new initiatives to help individuals transition from incarceration to their communities.

"The Empire State has always served as a beacon of equality and social justice, and with these actions New York is once again showing the nation the way forward," Governor Cuomo said. "For too long, our antiquated criminal justice system has created a two-tiered system where outcomes depend purely on economic status - undermining the bedrock principle that one is innocent until proven guilty. This sweeping overhaul will transform our criminal justice system by removing critical barriers, reaffirming our beliefs in fairness, opportunity and dignity, and continue our historic progress toward a more equal society for all."

The New Legislation will:

• Eliminate monetary bail for people facing misdemeanor and non-violent felony charges;
• Expand the discovery process to include disclosure of information in a timely manner including evidence and information favorable to the defense; intended exhibits; expert opinion evidence; witnesses' criminal history information; and search warrant information;
• Reduce unnecessary delays and adjournments in court proceedings, requiring that people held in custody - not just their attorneys - consent to a speedy trial waiver that must be approved by a judge and ensure that defendants are not being held unnecessarily when the prosecution fails to meet deadlines;
• Ban all asset seizures, unless an arrest is made and enhance reporting requirements for local law enforcement and District Attorneys; and
• Improve the re-entry process for individuals transitioning from incarceration to their communities.

Reshaping Bail and Pretrial Detention

When New York's laws governing bail were enacted back in the 1970's they were among the most progressive in the nation. Unfortunately, the status quo is no longer acceptable. New York's current bail system fails to recognize that freedom before trial should be the rule, not the exception, and by tying freedom to money, it has created a two-tiered system that puts an unfair burden on the economically disadvantaged. Furthermore, in practice, the location of an arrest often defines whether or not you are released or have to pay money for your freedom creating further injustice.

To rectify these inequities, the Governor is proposing legislation that will eliminate monetary bail for people facing misdemeanor and non-violent felony charges. Instead, people will be released either on their own recognizance or with non-monetary conditions imposed by the court, such as reporting to a pretrial services agency. For people charged with a violent felony offense, both monetary and non-monetary bail would be permitted, but only after a judge conducts an individualized review of the nature of the case and the defendant's personal and financial circumstances. If monetary bail is set, the court must give the defendant a choice between cash or bail industry bonds and an alternative form of bail such as an unsecured or partially secured bond. Additionally, in limited cases such as domestic violence offenses, cases involving serious violence, or when a defendant commits a new crime while out on pretrial release, a judge could order, after due process, a defendant to be held in jail pretrial without bail if they find the defendant poses a significant flight risk or if there is a current threat to a reasonably identifiable person's physical safety. Together, these proposals not only level the playing field for all defendants, regardless of their economic standing, but also ensure that actual threats to public safety are addressed.

Expanding the Discovery Process

New York is one of only 10 states that enable prosecutors to withhold basic evidence until the actual day a trial begins. Even worse, New York has the distinction of standing alongside only three other states - Louisiana, South Carolina, and Wyoming - as having the nation's most restrictive discovery rules.

Under Governor Cuomo's plan, prosecutors and the defense will have to share information incrementally before a trial takes place. This will include disclosure of evidence and information favorable to the defense; intended exhibits; expert opinion evidence; witnesses' criminal history information; and search warrant information will be made available to defendants in a timely and consistent manner. Doing so ensures attorneys have the tools necessary to adequately represent their clients.

Additionally, along with an accelerated disclosure of witness information, this plan will provide numerous special procedures to ensure the safety of those witnesses and the sanctity of the judicial process.

Improving Access to a Speedy Trial

The Sixth Amendment to the United States Constitution and state law guarantee all citizens accused of a crime the right to a speedy and public trial. Too often, however, defendants are held in custody, pre-trial, for excessive periods of time and courts are overburdened with an overwhelming number of pending criminal cases. This leads to backlogs that disrupt the justice system and have a disparate impact on low-income and minority communities.

The new law will guarantee that criminal cases proceed to trial without undue delay and that people are not held in jail for unreasonable periods of time. It would reduce unnecessary delays and adjournments in court proceedings, requiring that people held in custody - not just their attorneys - consent to a speedy trial waiver that must be approved by a judge. These waivers include a deadline so that the defendant, defense attorneys, prosecutors, and judges understand when the trial is scheduled and will only be granted after the defendant has made an appearance before a judge.

Courts would also conduct periodic reviews of cases where defendants are held in detention, to assess the prosecutor's statement of readiness, reconsider bail status if appropriate, and schedule a pre-trial conference. This will ensure the courts monitor cases where defendants are in custody and encourage the case to move forward to a conclusion.

The final component will help prevent delays stemming from actions by the defense where attorneys may file frivolous speedy trial motions at the last minute to delay an impending trial date. Currently, the defense only has to allege that the prosecution failed to declare its readiness for trial within the statutory time period, shifting the burden to the prosecution to identify the sections of law that allow for its actions. Under the Governor's proposal, a motion to dismiss must be made at least 20 days before the trial begins and it must include sworn factual allegations specifying the time periods that are being charged against the prosecution.

Transforming Civil Asset Forfeiture

Civil asset forfeiture is the process by which authorities confiscate cash or property they believe is obtained through illicit means. Currently, a person does not have to be found guilty to have their assets claimed by law enforcement -- law enforcement only needs a preponderance of evidence to make a seizure.

Under the Governor's proposal, new legislation would be put forth that would ban all asset seizures, unless an arrest is made. In cases where people are acquitted or the case is otherwise dismissed, they would get their money and valuables returned.

Additionally, Governor Cuomo will move to enhance reporting requirements for local law enforcement and District Attorneys. New York's current reporting procedure only requires these groups to report the total value of assets seized and the distribution of those assets. The State Division of Criminal Justice Services will expand reporting requirements to include additional information, such as demographic and geographic data, to better understand how civil asset forfeiture is used in New York State. Once a more comprehensive data set is created, New York will then evaluate the asset forfeiture system and make the appropriate changes to fix the identified issues.

Improving the Re-Entry Process

Since taking office, the Governor has greatly reduced the barriers facing people with criminal convictions. These New Yorkers have paid their debt to society and now seek work, a place to live, an education, and participation in their community. In the last three years alone, New York has outlawed blanket discrimination against people with criminal convictions in state-funded housing, in public college admissions, in state employment and in insurance coverage for employers who hire people with criminal convictions.

Building on this work, the Governor is proposing to remove outdated statutory bans on occupational licensing for professions outside of law enforcement and instead, applicants will be assessed on an individual basis. The mandatory suspension of driver's licenses following a drug conviction will also be removed to allow people to travel to work and attend drug treatment, as long as the crimes did not involve driving.

Additionally, the Governor will safely widen release opportunities for people who have shown rehabilitation by expanding the type and variety of programs provided in state prisons to make those individuals eligible for merit release and limited credit time allowances. There are also people in prison over the age of 55 whose debilitating or incapacitating medical conditions are costly to manage behind the walls. To remedy this, the Governor will propose that the Parole Board examine these cases under a new "geriatric parole" provision in which the Board will balance any public safety risk posed by these individuals with their need for age-appropriate treatment in the community.

Finally, the Governor will speed returning citizens' reintegration to society by reducing their financial burdens after release, including removing the current parole supervision fee and having local child support enforcement offices review child support orders for people incarcerated over six months. If warranted, these orders can be adjusted to reflect the parent's current financial circumstances. The child will not lose out because they are not receiving money now due to most parents' inability to pay while incarcerated. Emerging without a crushing weight of unpaid support, a parent will be ready to reenter the workforce and start supporting their child upon release. The Governor has also ordered a comprehensive review of parole revocation guidelines and practices to determine appropriate alternatives to incarceration for those who violate technical parole conditions, but pose no risk to public safety.

This five-pronged effort will build upon the long list of improvements New York has made to the criminal justice system under the leadership of Governor Cuomo. In 2017 alone, Governor Cuomo led the effort to raise the age of criminal responsibility, passed legislation that required law enforcement to video-record custodial interrogations for serious offenses, allowed the use of photo arrays to identify witnesses to be admissible at trial and extended the landmark Hurrell-Harring settlement's indigent criminal defense reforms to the entire State, becoming the first State in the Nation to overhaul its public defense system in such a drastic manner.

In the time since Governor Cuomo took office, New York State has closed 24 prisons and juvenile detention centers—more than in any other period under one Governor in state history. The prison population has also decreased by more than 6,000 within that time. The Governor also established the Work for Success Initiative which has helped over 18,000 formerly incarcerated people find work upon their release. Additionally, Governor Cuomo formed the state's first Council on Community Re-Entry and Reintegration in 2014 to address obstacles formerly incarcerated people face upon re-entering society. Since its launch, the Council has helped spur a number of changes to improve re-entry ranging from adopting "Fair Chance Hiring" principles in state agencies to issuing guidance that forbids discrimination at New York-financed housing based on a conviction alone.