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State legislators have the opportunity this week to make the Empire State more stable — and a place of greater civic trust — by finalizing Albany’s delayed budget deal with all of Gov. Hochul’s proposed amendments to the 2019 discovery law intact.
This would edge New York back from being a radical outlier among the 50 states when it comes to prosecutorial policy.
And, critically, it would help restore basic rule of law: the very foundation of a thriving society.
When New York’s discovery law was enacted in 2019, advocates argued that stronger guidelines would ensure that defendants know the weight of the evidence against them.
But New York lawmakers did something insane. They created a statute that hobbles the functioning of the criminal-justice system and called it “progress.”
Only in New York
Unlike any other state in the union, New York now requires a long laundry list of specific types of records prosecutors must gather, plus anything else remotely “related” to a case.
What about material that is related — but purely irrelevant (like surveillance footage shot with the lens cap on)? Prosecutors now must collect that, too!
Do other states require this amount of grunt work in order to prosecute cases? No — none even come close.
In fact, many states — including California, Maine and Oregon — only require prosecutors to collect a handful of specific evidence categories in order to move a case forward. That’s it!
Still other states — like Washington, Pennsylvania and Illinois — only require prosecutors to additionally assemble more if defense attorneys show there are missing records that are pertinent to the case.
Again, New York is the only state where, when prosecutors fail to collect “evidence” that all sides agree is totally useless, the case cannot proceed.
But that’s not even the most extreme part about New York’s law: Unlike all other states, New York penalizes prosecutors who haven’t done the impossible — that is, collected every scrap of irrelevant material — by summarily tossing out legitimate cases.
This is true even if it’s clear that prosecutors’ omissions were accidental or trivial.
And the timeline for all of this prosecutorial scavenging is tied to New York’s idiosyncratic “speedy trial” clock, which starts running the moment a case is arraigned.
Haven for the guilty
Compare that with other states most frequently cited for their progressive discovery regimes:
In Texas, prosecutors simply have to turn over discovery records to the defendants as fast as is practicable. They are only dinged if they intentionally suppress evidence and do so in genuine bad faith.
Meanwhile, California courts are actually prohibited from dismissing cases merely for discovery violations. Golden State prosecutors do not need to disclose their discovery records until 30 days before trial (tying them to the resolution of a case rather than its initiation).
Across the Hudson in New Jersey, prosecutors are permitted to file incomplete discovery material if these records are simply voluminous. Prosecutors are also permitted to bar defendants from examining some of this evidence if they offer a good explanation.
Critically, in all of these states, the penalty for prosecutors failing to turn over records is never immediate dismissal. Criminals do not get to skate because of minor procedural missteps.
By making the compliance burden impossible to consistently meet, New York functionally created a presumption of no justice — breeding distrust and empowering the extremes.
Indeed, many more guilty criminals now go free based on the purely arbitrary coin toss of whether the prosecutor on their case squeaked past the procedural hurdles or not.
That’s why, last year, New York achieved around 65,000 fewer convictions than in 2019, and nearly 40,000 more cases were chucked out entirely because prosecutors couldn’t meet these new compliance hurdles.
If you’re a guilty criminal, the Empire State is the best place in America to be prosecuted.
Least we can do
And that will be true even if all of Hochul’s amendments are passed this week. The governor’s tweaks are substantive and worthwhile, but modest.
In particular, she seeks to limit what additional records (besides the enumerated categories) prosecutors are immediately responsible to collect to only what is “relevant.”
Further, in order for cases to be summarily tossed, defense attorneys will need to show that the missing records could actually impact the outcome of the case. Otherwise, prosecutors would be granted more time to collect them.
Again: New York would still have America’s most anti-prosecution discovery regime.
But it would make the system more reliable, fairer and slightly less extreme.
Albany should enact all of Hochul’s discovery amendments — without another moment of delay.
Hannah E. Meyers is a fellow and the director of policing and public safety at the Manhattan Institute.