Testimony for City Council Committee on the Justice System Oversight: Hearing on “Preparing for the Implementation of Bail, Speedy Trial, and Discovery Reform”

May 22, 2019

Written Testimony by Manhattan District Attorney Cyrus R. Vance Jr. for City Council Committee on the Justice System

Oversight Hearing on
“Preparing for the Implementation of Bail, Speedy Trial, and Discovery Reform”

Good afternoon, Chairman Lancman and members of the committee. You are hosting what we believe is the first public hearing on this significant criminal justice legislation, albeit after the proposals became law.

Thank you for having this hearing on what it will take to prepare for the implementation of the Criminal Justice Reforms. It is important to have this discussion to adequately prepare for the sweeping changes that will take effect January 1st. I hope today is just the start of the conversation.

By way of context and background, let me remind everyone that we are living in a time of record-low crime in New York City. Murders are down more than 50 percent since 2010, and down about 90 percent since the 1980s. At the same time, New York’s incarceration rate has also decreased significantly, demonstrating that being smart on crime is better for everyone in the long run than merely being tough on crime. It is because of this success – in bringing down violent crime while simultaneously significantly reducing the number of individuals incarcerated – that we are able to take this moment in history to now address long-needed criminal justice reform.

Smart criminal justice reform can bring incarceration rates down even lower, but we must not cede the gains we have made in driving down crime – especially violent crime.  

Since 2010, when progressive policies were still derided as being “soft on crime,” the Manhattan District Attorney’s Office made criminal justice reform and eliminating unnecessary incarceration among our highest priorities. In that effort, we have drastically reduced the number of prosecutions for low-level offenses in Manhattan. Last year, we arraigned approximately 42,000 misdemeanors and violations combined, a 51-percent reduction from the 85,615 misdemeanor and violations we arraigned in 2010. That is more than FORTY THOUSAND fewer cases coming through our doors each year, a vast reduction of the criminal justice footprint we are leaving on society.

Through innovative programs such as Project Reset and Manhattan HOPE and through our office’s formation of a special unit devoted solely to alternatives to incarceration, we estimate that 4,000 more cases will be diverted from the system in 2019. We are proud that New York City has the lowest incarceration rate and the lowest crime rate of any big city in America.

I am testifying before you today to discuss the recently passed criminal justice reform legislation and how it will impact the work that prosecutors do. Many of the reforms will require immense restructuring of DA’s offices all over the state and will require significant logistical changes as well as increases in resources. Unfortunately, as you have heard, the lawmakers did not provide any funding for the new mandates. This was a missed opportunity to transform New York’s criminal justice system into a national model. Without adequate funding, the patchwork of reforms simply will not be as successful as they were intended to be.

Each of you represents constituents who care about the fairness of the justice system and also about public safety, and we have begun meeting with the City to determine what new resources are necessary to successfully implement these reforms and protect those constituent priorities. Although I have more questions than I do answers today, what we do know is that we will need additional personnel resources including more ADAs and support staff as well as technological resources to meet these new demands. In these remarks, I will address two areas of the new legislation that necessitate these additional resources: Bail and Discovery.  

Starting with bail, prior to the new legislation, New York law allowed for judges to make cash bail determinations pre-trial, and that practice was widely criticized as creating a racist, classist criminal justice system. Indeed, it is our belief at the Manhattan District Attorney’s Office that prior actions and charged crimes, not bank accounts, should be among the factors considered by judges when determining pre-trial detention. As such, we supported ending cash bail and passing a law that would instead allow prosecutors to ask for pre-trial detention in a limited number of cases – cases where the defendant was a threat to public safety. This was a position supported not only by our office, but by our colleagues in Brooklyn, the Bronx, Queens, Nassau, Suffolk and Westchester Counties, among others, as well, in addition to being supported by respected criminal justice think tanks like the Vera Institute of Justice. And, in fact, it should be noted that 48 of the 50 states and the Federal Government allow judges to consider risk of danger to the community when determining whether an individual should be detained. We are one of two states that does not allow this – in New York, only a defendant’s risk of flight can be used to weigh detention decisions.

And yet, instead of ending cash bail, the Legislature passed a bill that continues cash bail, but only for certain charges. And, even for defendants who have committed an offense that qualifies for bail or detention, judges still may not consider the defendant’s risk of danger to the community, rather, they may only consider the defendant’s risk of flight or of not returning to court. For defendants who commit crimes that are not “qualifying offenses” for bail or detention, on the other hand, nothing about the case or the character of the defendant can allow prosecutors to move for detention – not even the defendant’s risk of flight. And, because the legislation excluded financial and cybercrimes from the list of qualifying offenses, for some of our most serious flight risks – white-collar defendants and sophisticated cybercriminals who have the means and finances to flee – we have no mechanism to request that they be detained. Rather, they will simply be automatically released, which, of course, provides them the opportunity to cover up additional crimes that law enforcement has yet to discover.

As noted, for defendants who do commit qualifying offenses, a judge cannot determine bail or detention based on the defendant’s risk of danger to the community. That means judges cannot consider how the defendant’s criminal history or the details of the defendant’s current crime increase the risk of harm the defendant could cause to the public if released. Instead, judges may only consider those – and all other – factors as they pertain to the defendant’s likelihood to return to court. I believe that most New Yorkers do not know that judges cannot consider the defendant’s risk of harm to the community when determining bail. But I think they care about the law forcing courts to release repeat or dangerous defendants into their communities with little more than an admonition to not commit any crimes while awaiting trial. Residents care whether a serial sex offender is automatically released because he’s not a demonstrable flight risk. They care whether someone who skillfully breaks into apartments is released the second, third, or tenth time someone awakes to find him in their home. They care whether the person selling narcotics on the street corner during a worldwide opioid epidemic will continue to peddle their poison in the neighborhood because of this new law. They care whether the cybercriminal who preyed on immigrants or the elderly is released and allowed to go right back to the same computer from which he put the scheme into motion. They care whether someone who is a known, proven risk to the safety of their community can be treated as such by the courts.

But, under this new law, courts cannot consider the risk those defendants pose to the community, and, in many instances, they do just have to release them right back into those communities. If a defendant is not arrested on a qualifying offense, he must be released. Period. This law wrests all discretion from judges.

And, although the legislation allows the court to order release with non-monetary conditions in some instances, it does not provide any resources for the court to be able to do so. New York’s current supervised release program is designed for individuals who may not need more than reminders through text or phone calls to return to court. But many of the individuals who will now be released to our communities will require much greater supports to be at liberty, successfully make all their court appearances, and not reoffend. That is why we are currently in discussions with the City about how we can create such systemic supports. To give you an estimate as to the scale of what we are talking about, The Vera Institute of Justice, which has studied this issue extensively, estimates it will cost $75 million a year to roll-out pre-trial services and supervised release across the state.  

Funding those programs will be vital, especially considering the types of cases for which the new law requires courts to release defendants prior to trial – which include residential burglaries and aided robberies. In fact, our office has a recent burglary case that gets to the core of this issue. Of course, every time we talk about cases we currently have which will be affected by the new law, we are accused of fear-mongering. But that is not our intention. Rather, we are showing you how we came to our own conclusions about the bill – by looking at the cases we have and seeing how they would be affected.

In the recent burglary case I mentioned, the defendant is a mandatory persistent violent felon – in laypersons’ terms, this means that he is facing life imprisonment due to his history of felony convictions. In 2001, he pled guilty to three residential burglaries. In 2011, he pled guilty again, this time to four residential burglaries in Chinatown, and was identified in nine more. This defendant then served six years in state prison and had barely been out for a year when, in 2017, he returned to Chinatown and victimized the same community in the same way. In October and November of that year, the defendant entered the homes of seven families while they were sleeping and stole items from their bedrooms. Law enforcement was able to identify him by the fingerprints he left at the scene and arrest him a little over a week later while he was walking on Madison Street underneath the Manhattan Bridge, just steps away from buildings he had recently burglarized.

Even though the minimum sentence he could receive would be 16 years to life if convicted of the latest charges, under the new law, a judge would not be permitted to set bail or detain him because, inexplicably, our state lawmakers excluded residential burglaries from the list of bail eligible offenses. So, despite being categorized by the legislature as a mandatory persistent violent felon and being proven to be a danger to the safety of his community, he would be released right back into that community.

It’s not only street crime that concerns us. Last month, my Office’s Cybercrime and Identity Theft Bureau announced the takedown of a major darkweb organization, “Sinmed” – one of the largest illegal drug vendors on Dream Market, a dark web bazaar. The proprietors of Sinmed sold and shipped hundreds of thousands of counterfeit Xanax tablets and other controlled substances to buyers in all 50 states and laundered more than $2.3 million in cryptocurrency proceeds. During the takedown of this case, law enforcement seized the largest quantity of pills in New Jersey State history, including approximately 600,000 counterfeit Xanax tablets, as well as approximately 500 glassine bags of fentanyl-laced heroin, and large quantities of methamphetamine, ketamine, gamma hydroxybutyric acid (GHB), and more. Simply put, the drugs being sold, particularly those laced with fentanyl, had the potential to kill a significant number of people. Under current law, the court can protect the community by holding these dangerous individuals in pretrial detention, but, when the new legislation goes into effect on January 1, 2020, our courts and prosecutors will lose the ability to do anything other than watch those defendants walk away and head back to their criminal enterprises, because none of the charges they face were designated by lawmakers as qualifying offenses, despite their deadly consequences.

As this case demonstrates, defendants in large-scale white-collar cases – who commit crimes that require sometimes years of investigation and that wreak havoc on the lives of their victims, particularly those in vulnerable communities – will never be detained. In other words, this legislation essentially hands white collar criminals a get out of jail free card. And, of course, the natural yet undoubtedly unintended consequence of that is that the new legislation will inevitably increase the racial and socioeconomic disparity in our jail population.
In addition to the issues we will face with local defendants, the legislation will impede our ability to prosecute cybercriminals from all over the world. Often, the masterminds of sophisticated malware and business email compromise schemes and the leaders of online forums for selling personal identifying information and other sensitive data are not located in New York, or even the United States. But our system enables us to hold them accountable for violating New York law. This often involves an arrest in a foreign jurisdiction and extradition to New York. Under the new law, no matter if the person caused thousands or even millions of dollars of damage and regardless of how difficult it may have been to arrest and detain the individual in a foreign jurisdiction, we cannot ask for pretrial detention because the crime does not qualify for bail or detention under the new law. We will bring them across oceans to face charges, only to watch them immediately leave the courthouse because their crimes are not deemed “qualifying offenses.”  

Critically, too, the new law is unclear as to whether a defendant found guilty of a serious but non-qualifying offense can be detained while awaiting sentence. For example, the burglar I mentioned earlier is now facing 16 years to life if convicted – are we comfortable letting a violent predicate felon now guilty of terrorizing multiple families in a single community remain at liberty until his sentencing hearing, which usually takes place weeks after the jury has rendered a guilty verdict? Are we comfortable even believing that that individual will return to court for sentencing once the jury has rendered that guilty verdict? Surely, the Legislature and Governor could not have intended to mandate that convicted defendants walk out of court free until sentencing, but that is a possible interpretation of the new law.

To the issue of funding as it relates to changes in our bail statute, to achieve reduced incarceration, supervised release and pre-trial services will be scaled up across the state. The City will have to invest considerably in building pretrial services capacity to manage the number of defendants that will be at liberty during the pendency of their case with non-monetary conditions set by the court. Because, although the legislature had the foresight to require the creation of a pretrial services agency – a cornerstone of any jurisdiction that has eliminated cash bail – it failed to appropriate any resources to do so, creating a major statewide unfunded mandate, a considerable shortcoming of this reform effort.

My office is proud to have seeded $13.7 million in asset forfeiture funds for the expansion of the current Supervised Release program across the city. The Mayor’s Office of Criminal Justice has administered that program with much success. 89 percent of defendants released into that program return to court for all their appearances and 92 percent are not rearrested for a felony pretrial. Despite the success of this program, it is not sufficient in its scope or scale to manage the influx of cases that will be released with non-monetary conditions.

In Manhattan, for example, of the 9,459 cases where bail was set last year, we estimate that the defendants in 6,735 (or 71 percent) of those cases would be released under the new law because they did not commit what the Legislature determined is a “qualifying offense.” The remaining 2,724 (29 percent) of those defendants – those who did commit qualifying offenses – would be eligible for bail or detention. A considerable proportion of cases in both categories – mandatory release and qualifying offenses – will have non-monetary conditions set by the court, and there needs to be capacity to appropriately supervise these defendants. Last year, there were 1,040 defendants placed on Supervised Release in Manhattan – it’s likely that number will increase five-fold or more come January because of the large number of cases that will fall under mandatory release.

The American Bar Association and the National Association of Pretrial Services Agency have established best practices for pretrial supervision and indicate that a pretrial service agency should: 

• Monitor defendants and promptly notify the court, as necessary, of potential violations of conditions of release, as well as provide recommendations about the consequences of violations;
• Provide reminders and other necessary assistance to ensure defendants appear for court dates; and
• Support defendants to obtain employment as well as any services (e.g., mental health or substance use disorder treatment, legal services), that may increase their ability to comply successfully with conditions of release.

Research shows that matching supervision levels to risk and need greatly improves supervision compliance and outcomes. In this context, services and supervision should be provided in proportion to an individual’s risk of failure to appear, with lower-risk defendants receiving less intensive interventions than higher-risk defendants.

The new statute also contemplates electronic monitoring, and state-of-the-art technology will be needed to ensure effective implementation. As the Brookings Institution has concluded, phone apps with voice and facial recognition technology may create a more flexible interface than an ankle or wrist device alone, and can provide new ways for pretrial service agencies to check-in with users, connect them to resources, and offer reinforcement for making court dates and other terms of release. This form of supervision, however, will only be as effective as the court’s ability to oversee it; it is necessary that the technology be able to swiftly and accurately report back to the court regarding a defendant’s compliance and whereabouts. This requires manpower, in addition to equipment and technology – all of which are costly.

As noted, the Vera Institute of Justice estimates that it will cost $75 million a year to rollout pre-trial services across the state. New Jersey spent $62 million on pretrial services last year and supervised 33,741 cases. Likewise, Washington D.C. has an operating budget of $62 million and supervises 16,000 cases per year. New York City will have to invest considerably in developing this capacity, because, without the support of the Legislature and the Governor, that burden falls on the Council and the Administration. We are here today asking that you join your national partners in supporting your local constituents by investing in these tools that will ensure successful implementation of the new law and protect community safety.

Turning to discovery rules. Since 2009, I have advocated for the Legislature to reform New York’s discovery rules, and I have significantly opened discovery practices in our Office. To implement the new reforms – in our office and across the state – the state or cities must allocate resources to this endeavor that will allow for significant personnel and technology increases. In addition to necessitating additional resources for prosecutor’s offices, the legislation necessarily requires additional resources for the NYPD, so that we can work together to meet our discovery obligations.

Here is why: for most cases, the new legislation requires us to turn over discovery materials to the defendant – including the names of victims and witnesses – within 15 days. Of course, that does not capture the full scope of what will be required, because the new law expands discovery by requiring the People to turn over, in that same short timeframe, a host of additional materials. A typical case in 2020 may encompass thousands of text messages, medical records including x-rays or other imaging, insurance records, financial records, historical cell site data, search warrants for computers and cell phones, photographs, hours of surveillance videos from private business or NYPD units, transcripts of various proceedings, recordings from NYPD body cameras, and many other sources of evidence.

Importantly, the new discovery requirements apply to all cases, including those resolved by pleas, unless the defense waives. Currently, more than 97 percent of cases are resolved by guilty pleas, often to the benefit of defendants, and those cases do not require full discovery. Being mandated now, however, to provide such a significant quantity of information in most cases will significantly burden DA’s Offices across the state, and, in fact, will do so with an incredible amount of potentially unnecessary document production. In Manhattan alone, we estimate that these changes will require what amounts to full trial discovery on approximately 25,000 additional cases annually.
In short, the legislation not only impacts the timing of discovery and extends discovery obligations to cases resolved by guilty pleas, but it also significantly expands the scope of discovery, which is why every single DA’s office will ultimately need additional resources, regardless of what their prior discovery practices were.

Despite not allocating any resources to this reform, the legislation does include significant sanctions for failing to comply with the new discovery obligations – yet another reason why funding is so crucial. We are not yet ready to give the specific budget number that will be required to implement these new mandates. But we do know that it will be substantial – we aren’t talking about needing quarters for the copier, we are talking about needing to create essentially a full-scale high-tech reproduction unit – a unit that at present does not exist and for which no funds have been allocated. Prosecutors will also require funds for personnel dedicated to a litigation support unit
(more analysts, paralegals, and lawyers) just to acquire, process, and disseminate the materials. We will also need additional ADAs and analysts to review the materials.

Complying with the new discovery laws isn’t simply about resources. We must also ensure witness safety and the cooperation of witnesses. The new discovery statute mandates that the District Attorney provide the name and adequate contact information for all persons who have information relevant to any charge, within 15 days of the defendant’s first appearance in criminal court. As indicated, currently less than 3 percent of cases go to trial, so, historically, the identities and statements of victims and witnesses have been protected from disclosure. Now, having to hand defendants a roster of who has spoken out against them just fifteen days after their first appearance, absent a protective order, is a seismic change that undoubtedly will dissuade witnesses who live in all neighborhoods from reporting crime or agreeing to testify as witnesses. Indeed, even now, we have seen that witness intimidation is a very real concern when cases go to trial. Take, for example, our office’s prosecution of James Seabrook, a case that the New York Times recently cited. In that case, the defendant’s attorney allowed the defendant’s sister to take pictures of documents that contained witness information, and she texted those pictures to other people. At trial, the witness declined to testify, and the jury deadlocked on second-degree murder. This new law significantly increases the number of cases in which this type of witness intimidation is possible. That is the biggest concern that I have about this legislation – we can execute the logistics, if there is a solution to funding. But we cannot prosecute violent crime without witnesses. Period.

Of course, this witness safety concern also raises additional logistical concerns. For example, it is unthinkable that the prosecution would turn over the name and contact information of a witness without first interviewing her, alerting her to the impending disclosure and assessing any potential safety risks. This will now need to be done in this very short 15-day timeframe, rather than needing to be disclosed as a trial approaches. Moreover, the expansive language contained in the statute means that the prosecution will have to undertake and complete this task not simply with respect to witnesses who may testify at trial but with countless other individuals as well. Many law enforcement operations are initiated based upon civilian complaints about criminal activity. The complaints come from all sorts of people, from grandmothers who sit at the window watching their courtyards to store owners who tell the police what they see on the corner. Even in a straightforward case of shoplifting, a single security guard may have apprehended the thief, but half a dozen sales personnel may have witnessed just that apprehension, not the crime itself. Now, for these individuals whom we may have never needed to contact, prosecutors will not only have to contact them within 15 days, but will also have to conduct intensive interviews, inform them of the law’s new impact on them, address their safety and privacy concerns in hopes of helping them overcome their reluctance to cooperate, and hand over their contact information to the defendant, all within that timeframe. All this will require substantial additional prosecutorial resources.
It goes without saying that these changes are vast and that more time will be needed to adequately determine the additional resources, staffing, and funding necessary to meet our new obligations, but it will no doubt will be substantial. One resource suggestion would be to fund the creation of a City-wide electronic portal that allows defense attorneys to contact witnesses through that portal without displaying the witness’s sensitive personal contact information. Because the new legislation will likely make witnesses reluctant to come forward – as they’ll know that their names and “adequate contact information” must be disclosed to a defendant – this type of technology may be crucial to combat that chilling effect that the laws will have on witness participation, by helping give those witnesses peace of mind that they can stay safe even if they participate with law enforcement.

We stand ready to meet our new mandate, and we want these reforms to succeed. But we can’t comply within the boundaries and time constraints set by the Legislature without the resources to do so. I would like to thank the Council for many years of support for the City’s prosecutors and the work that we do. We ask that you continue to support that work and do everything in your power to help us to successfully implement these reforms.