There was a time in this country when committing a crime had consequences. Granted, our Constitution guarantees those accused of crimes of many rights, including the right to face one’s accuser, the right to a speedy trial, and other rights that have been expanded over the years by sometimes activist Supreme Courts.
In New York, Democrats took over control of the state legislature and have wasted no time in turning the criminal justice system into a social justice experiment. In doing so, they have empowered criminals and tied the hands of law enforcement. Consequences? Probably not so much.
A new series of criminal justice reforms due to take effect in January will fundamentally change how business is conducted in courts in New York.
One movement, to abolish cash bail, is one of the hallmarks of the law. Eliminating cash bail is supported by far-left New York governor Andrew Cuomo. The law would allow judges only three options for dealing with criminal defendants- release on own recognizance, supervised release or in more serious cases, incarceration pending trial.
This comes with its own set of problems. One can imagine that if a gang-banger drug dealer is arrested and charged with distribution of narcotics that would likely be considered a “minor” felony, subjecting said gang-banger to being released on own recognizance or supervised release. In liberal land New York, incarceration pending trial for a “low level” drug offense is not likely.
So, now we have a drug dealer who has been released onto the streets. He will now be able to locate and intimidate witnesses who might testify against him. If they’re lucky, it will only be intimidation and not something worse. Of course, based on another part of the law, they will know exactly who those witnesses are.
The new law also requires prosecutors to immediately turn over most of their evidence to the defense within 15 days of an initial court appearance. Prosecutors and law enforcement organizations opposed these changes, fearing that it would make it easier for defendants to intimidate witnesses, in particular for sexual assault and gang cases.
“The only way we can get them to come forward is by promising them we won’t disclose their information until we absolutely have to,” said P. David Soares.
He’s the Albany County district attorney and president of the state district attorney’s association. He also lamented the tight deadlines mandated under the new law, calling them “nothing short of impossible.”
The law gives prosecutors 15 days to turn over evidence to defendants. Examples of evidence include photos, police reports, grand jury testimony, and electronic recordings, including the names of witnesses. Prosecutors are able to request protective orders to guard witness names and information until trial, but judges are not required to do so.
Of course state legislatures and Congress are famous for implementing laws that have unfunded mandates that need to be paid for. These mandates are usually dumped on cities and towns, who have to find a way to pay for them.
In New York, mayors and city leaders across the state are concerned about the criminal justice reform law that takes effect in January. According to these folks, the new requirements will place a tremendous burden upon cities and towns to comply with its requirements.
For example, the mayor of Freeport, located on Long Island estimates it will cost his town of 43,000 residents over $2 million dollars each year to comply with the 15-day requirement for producing evidence. This is due to additional staff and to upgrade technology to meet the additional demands.
“Every radio transmission recording from the officers and transmissions from all 911 calls would be included,” according to Robert Kennedy.
He’s the mayor of Freeport.
“Every body camera from every police officer will have to be downloaded from the cloud. If you have 12 or 15 officers at the scene, every one of those body cameras are going to have to be downloaded for discovery.”
However Nicole Triplett of the New York Civil Liberties Union dismisses the concerns.
“The costs that people have historically borne from this system has been hugely expensive. I don’t think the costs that these folks are facing should be considered in a vacuum.”
She said that cost savings from having fewer pre-trial defendants locked up might help to fund any additional staff and other costs incurred to communities.
However, the NYPD estimates that the new law will cost $100 million to the city.
“This is all unfunded by the state,” former Police Commissioner James O’Neil said. “One of the biggest issues I have with this was the way it was all done, and we weren’t consulted. I know it’s well-intentioned but you got to use some common sense here,” he said.
One part of the law which has a lot of people concerned is the provision that defendants will be allowed to visit crime scenes to build their defense. Under this scenario, a court can order the crime scene remain unchanged.
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Another area of the law which is of concern is the defense will get names and contact information for anyone with relevant information about a case, including the name and assignment of all officers involved, every witness statement, including any that the prosecution does not intend to call.
As one can imagine, providing criminals, especially gang members, with this information early on in a case could have bad consequences.
While New York was spinning its wheels once again throwing down with criminals, a loophole in an existing state law was discovered.
The top prosecutor in Manhattan stated that because of a legal loophole in state law, someone who becomes voluntarily intoxicated is not considered to be “mentally incapacitated” for the purposes of giving consent, according to the Independent.
In a 2018 letter to Governor Andrew Cuomo written by District Attorney Cyrus Vance Jr., he wrote:
“But there is no difference between an intoxicated individual’s ability to consent to sexual acts when he or she was drugged, and an intoxicated individual’s ability to consent when he or she voluntarily drank alcohol or took narcotics.”
The letter was reviewed by the Washington Post.
Mr. Vance was pushing Cuomo for legislation to eradicate the requirement under state law that a victim’s intoxication was involuntary. He reasoned that a reasonable person should know whether or not a person was drunk, and therefore should not be shielded from prosecution.
Surprisingly, according to the Independent, most states only imply a lack of consent where the intoxication was involuntary, according to an article published in the Brooklyn Law Review in 2016.
As a basis for his argument, Mr. Vance cited a 2011 case involving two NYPD police officers who were arrested and subsequently acquitted of rape charges involving an intoxicated woman. Officers Kenneth Moreno and Franklin Matta allegedly raped the woman after helping her while on patrol.
Prosecutors could not prove that the woman had not agreed to consensual sex with the officers because of existing law. Mr. Vance argued that the officers should have known that the woman was incapable of informed consent.
“If someone is drinking voluntarily and become excessively drunk, that’s not a green light for someone to sexually assault you,” Vance wrote. “No one should be able to assault you simply because you put yourself in a case where dangerous things might happen,” he said. As of September, Cuomo’s office had not responded to Vance’s letter.
New York State Senator Alessandra Biaggi introduced a bill in September that would expand the definition of mentally incapacitated to include someone who has become voluntarily intoxicated. Biaggi did not know that voluntary drunkenness was an exception to the implied consent statute and hoped for quick passage by the legislature next January.
Still, there are some who doubt that legislature’ resolve to fix the issue. Alexandra Zeitz-Moskin is a spokesperson for the New York City Alliance Against Sexual Assault. She predicts passage of the law will be difficult.
“I think it will be a really challenging feat, actually, and the reason that it’s been so pervasive in a lot of states is that there is a cultural perception that if someone has been drinking, that in some ways they are consenting,” she stated.
Still, Vance has some skeletons in his closet where it concerns prosecution of sexual abusers. He failed to prosecute the former director of the International Monetary Fund in 2011, where Dominique Strauss-Kahn was accused of forcing a maid to perform sexual acts. More recently, in 2015, he declined to prosecute the infamous Harvey Weinstein for allegedly groping a woman without her consent.
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