The 2019 Bail Reform Bill is probably better called a Criminal Justice Reform Bill. It did much more than just make changes to the bail laws in New York.
We have all heard numerous outcries that many of those changes were too much, and that a new reform bill is required. I agree that parts of the 2019 bill are not improving the system. However, I would not vote to repeal the bill, as many Republicans have called for. Instead, I would act as the governor is doing – introduce changes that will make the bill work better.
The governor has proposed a 10-point plan to change the original criminal justice reform bill. These changes include restoring the court’s ability to apply or not apply bail in some cases, such as certain gun-related cases and repeat offenders of non-violent crimes, modifications to the discovery timeframes, and funding for mental health services and pretrial programs.
I support these three proposals and I want to point out the importance of the discovery changes.
Discovery is the process of exchanging evidence. The original reform law requires a very short timeframe for prosecutors to make the exchange – in most cases fewer than 35 days. The law says that if police have the evidence, then it is assumed the prosecutor does, too.
This is where the problem starts to take shape. This timeframe can be impossible for police agencies to meet in many cases, and the result is fewer arrests and more staff for documents handling (higher costs).
The concept is valid – provide the evidence as soon as possible and by doing so we can forget about the phrase “Justice delayed is justice denied.”
The fixes in the governor’s proposal support our police agencies and make it possible for them to make arrests and deliver the evidence promptly, which means our communities are safer.
Dan Butterman, Oneonta
[Editor’s note: Mr. Butterman is a candidate in the race for the New York State Assembly’s 122nd District.]
It was just one month before COVID shut the world down in 2020 and tempers were short in New York’s state Capitol. I don’t remember exactly why the governor and legislature were sniping back and forth, but I do recall sitting down for a mid-February meeting with one of Governor Cuomo’s top policy people.
“I know it’s chaos around here,” I said to her, sympathetically. “Thank you for taking the time to meet with me.”
“Hey, It is chaos,” she shrugged. “That’s the way the boss likes it.”
Andrew Cuomo strolled to the microphone in New York City last week with characteristic swagger, carrying the binder that contained either his prepared remarks or, perhaps, a playbook filled with trick plays that end with the ultimate Hail Mary pass – a trip back to Albany as governor of New York State.
It was his second appearance on what looks like a mea culpa tour of friendly locations in New York City, and this time, he spoke with gubernatorial intonation about the need to revisit bail reform to combat the region’s rising crime rate. (This would be the same bail reform that he jammed through the state Legislature in 2019.)
Within hours, his successor, Governor Kathy Hochul, leaked a memo outlining a 10-point bail and discovery reform bill she plans to inject into state budget negotiations, the process over which her
Otsego County District Attorney John Muehl is stark and passionate about New York State’s criminal justice reform to the point where — absent modification to the new laws — he won’t seek reelection in 2023. He’s on the record with that pronouncement from late last year, frustrated that from his point of view, New York’s bail and discovery statutes don’t let him do his job.
“With the combination of bail and discovery reform, for all practical purposes, they’ve legalized drug sales,” Mr. Muehl said in a conversation with The Freeman’s Journal/Hometown Oneonta. “Every night I think about the drug dealers that we’re just not doing anything with and all the drugs they’re pushing on kids in the city and around the county.”
The discovery law requires prosecutors to disclose their evidence earlier in case proceedings and eliminates the need for defense attorneys to make written demands to obtain and review evidence. The prosecution must allow the defendant to “discover, inspect, copy, photograph and test” all materials relating to the subject of the case, including the names and contact information for any person with relevant information regarding the case. In some cases, the law requires prosecutors to disclose the name and contact information of confidential informants.
Suing Georgia over voting rights is just the start
From The Albany Times-Union:
Georgia was among a host of GOP-controlled states that in the aftermath of Republican Donald Trump’s loss to Democrat Joe Biden for the presidency have intensified efforts to pass laws brazenly aimed at suppressing votes by people of color. Georgia and its defenders offered the weak defense that some of the provisions it passed will expand voting rights, as if a little window dressing is supposed to make up for its draconian measures.
Those measures, as outlined by Assistant U.S. Attorney General Kristen Clarke, included a raft of restrictions on absentee ballots, including shortening the time to apply for them and imposing new ID requirements. As Clarke noted, Black voters used absentee ballots at a much higher rate last year than white ones.
The Georgia law — which grew from three pages to 90 on its way from the state Senate to the House, where it received a mere two hours of debate — would also cut, from 100 to around 20, the number of ballot drop boxes that were popular in the metro Atlanta area where, not coincidentally, the state’s largest Black voting-age population resides. And infamously, the law made it illegal to give people waiting in long lines — which voters in high-minority areas tend to face — food or even water.
That’s just one state. The Brennan Center for Justice at New York University counted as of mid-May nearly 400 bills with restrictive voting provisions around the country.
These laws aren’t happening in a vacuum, but in the echo chamber in which Trump’s lie of a stolen election and his fiction of massive voter fraud keeps getting repeated by Republican lawmakers as if it is true in order to justify such anti-democratic schemes. … So they’re passing these laws in statehouses, and using the filibuster in Congress to block federal legislation to protect voting rights.
There are still laws that apply here, and it’s encouraging that Attorney General Merrick Garland announced at the same time as the Georgia lawsuit that the Justice Department will fully use the Voting Rights Act and other statutes to push back on voter suppression and intimidation wherever they find it. In the absence of a new commitment in Congress to this most fundamental right in a democracy — the right of the people to choose their leaders — the battle is never ending, to this nation’s shame.
Safety versus justice is a false choice
From The Albany Times-Union:
Some people deal with criticism by showing why it’s unfair. Then there are those, like Saratoga Springs Assistant Police Chief John Catone, who seem to go out of their way to prove their critics’ case.
Catone, joined by Commissioner of Public Safety Robin Dalton, went on a tear that sounded so many wrong notes when it comes to complaints of systemic racism in the criminal justice system that it was hard to keep track. … (Catone) delivered a rant filled with racist dog whistles, punctuated by what came off as a threat to summon the collective forces of the city’s historically white power establishment to put an end to what he called “a narrative of lies and misinformation.”
Let’s start with the most important thing of all: It is not the job of those in law enforcement to shut down speech they don’t like. That threat alone should be enough for Catone to turn in his badge and gun and retire early. And for sitting by his side, nodding in apparent agreement, Dalton should resign, and drop her bid for mayor.
We are in no way defending any violence that has taken place in Saratoga Springs, including a brawl Saturday night on Caroline Street and some alleged recent muggings in Congress Park. We in no way support demonstrators carrying bats, as one organizer acknowledged some did in the past.
We do support people’s right to demonstrate, to express their views that there are racial problems in their police department, and to petition their government for redress of their grievances. If that discomfits some in a community that thrives on tourism and its image as a charming, gentrified, historic American city, well, that’s the First Amendment for you.
Catone doesn’t seem to see it that way. He railed about how critics of his department were “trying to push a narrative from a national stage” — a reference to the Black Lives Matter movement — and talked of “gangs from Albany” — read: young men of color — coming up to Saratoga Springs to sell drugs and cause trouble. In wrapping all this into one speech, he conflated drug gangs and Black Lives Matter activists, an outrageous rhetorical slander whether he intended it or not. …
For good measure, he blamed criminal justice reforms passed by the state Legislature, which included ending a system in which low-income people unable to make bail were jailed without trial while those of means could readily buy their freedom.
So it’s police against “them,” and everyone has to pick sides? This is Assistant Chief Catone and Commissioner Dalton’s idea of a unified community?
What they present is the false choice that so many misguided or opportunistic politicians and demagogues offer: that it’s either law, order, and unquestioning support of police, or chaos.
A truly strong society — whether it’s a small city or the richly diverse nation it’s a part of — must be both safe and just. For all.
From: Sochie Nnaemeka and TeAna Taylor. special to the Utica Observer-Dispatch.
There’s no doubt that Albany is undergoing a transformation.
Voters across the state turned out in record numbers to elect Democratic and Working Families champions to the Legislature last year, winning super-majorities in both houses. And this April, the results were made clear: New York passed a budget that provides historic funding to our public school students, tenants, immigrants and Black and brown communities. We legalized cannabis for adults with provisions to ensure the benefits are shared by the communities directly impacted by the drug war. And we finally passed the HALT Solitary Confinement Act to restrict the use of “the box” in prisons and replace it with safe, humane alternatives. Electing progressive leaders is helping to deliver a future for New York rooted in equity and justice.
As we come down the final stretch of the legislative session, our elected leaders must resist complacency and continue to deliver long-overdue changes to our criminal justice systems that New Yorkers have been demanding.
Family members of incarcerated people, community leaders, and criminal justice advocates call on Gov. Andrew Cuomo to grant emergency clemencies to older people in prison and others with compromised immune systems in response to the death of a person incarcerated at Sing Sing Correctional Facility who tested positive for COVID-19 April 3, 2020 outside the prison in Ossining, New York. Juan Mosquero was the first incarcerated person with the virus to die in a state prison.
If you’ve lived a while, how often have you heard predictions about the extinction of one party by the other?
After Richard Nixon’s rout of George McGovern in 1972 and Ronald Reagan’s two terms, the Democrats. After LBJ overwhelming Goldwater in 1964, Bill Clinton’s 1996 reelection and Barack Obama in 2008, Republicans.
Only one Democrat was elected president between the end of the Civil War and Woodrow Wilson, 47 years later. Only one Republican between FDR’s and Nixon’s election, 36 years later.
Their pro-slavery stance before the Civil War ruined the Democrats. Insensitivity to suffering following the Crash of 1929 ruined the Republicans.
Hubris nemesis – today’s pride leadeth to tomorrow’s fall.
Congratulations to local supporters of the Biden-Harris ticket, some who were seen (and heard) in front of their homes at 11:45 a.m. Saturday, Nov. 7, hammering on pots and pans to celebrate achieving 270 electoral votes.
The nation has spoken – for now, and narrowly.
It isn’t astonishing that President Trump’s divisiveness led to his loss; and that the Blue Wave turned out to be a ripple, and challenger Joe Biden achieved such a narrow victory.
What is astonishing is the wide support for Republican candidates in centrist, moderate Otsego County.
Every local winner was Republican, from Assemblyman John Salka and Peter Oberacker, elected to state Senate, to every candidate on the ballot, except Congressman Antonio Delgado, D-19. Energetic and conciliatory, even he only narrowly beat Republican Kyle Van De Water, who, from what we can tell, only visited Otsego County twice during the campaign.
The single issue that stood out amid all the verbiage was worries about the state’s bail reform. It, in effect, was the dismantling of the justice system as we know it by the Democratic majority in Albany – state senators, assemblypeople and Governor Cuomo.
Here’s a sampling of local fallout.
• Just hours after the state legislative majority folded bail reform into the 2019 state budget vote – thus avoiding the usual public hearings and, sometimes, compromise – a local man was arrested in the morning for stealing a truck. Freed without bail, he stole another truck that evening.
• A downtown merchant called OPD about a customer shoplifting. The police apprehended the man, then freed him as required. He was back shoplifting that afternoon.
• Following the rash of car break-ins in Oneonta this fall, it surfaced that one of the suspects, apprehended in September, had been arrested four times since Aug. 31 for similar petty thievery.
• Then, Oct. 19, when the first two trials since COVID-19 struck in March were scheduled to start in Otsego County Court, neither defendant showed up, District Attorney John Muehl reported in dismay – but not surprise. Charged with crack-cocaine violations, they were wandering, bail-free, amid our children, our families and our community at large.
That just scratches the surface.
Among all of this fall’s candidates, only the scrappy Salka, the Republican freshman who represents Otsego County’s three largest communities – Oneonta, Cooperstown and Richfield Springs – took the initiative in saying it loud and clear: Bail reform is lousy law.
The blatant injustices that needed correcting were mostly at New York City’s Rikers Island prison, not statewide.
He introduced a bill to repeal the reform. And candidate Oberacker, now elected successor to state Sen. Jim Seward, R-Milford, joined him, declaring that on Day One – Jan. 1, 2021 – he will introduce companion legislation to Salka’s bill in the upper house.
Salka’s winning tally rose from 6,582 in 2018 to 7,879 on Nov. 3, an 8-percent increase, garnering him 56 percent of the Otsego County vote, compared to 41 percent for his in-county opponent. Oberacker’s margin was 61 percent to his opponent’s 39 percent.
Indeed: A Red Wave.
Bail reform is not the only bad law to come out of Albany. The Farm Bill, with its extension of overtime provisions to agriculture, will shutter innumerable farms if imposed, both Oberacker and his Democratic opponent, Jim Barber, agreed. The natural-gas prohibition. Issuing drivers’ licenses to undocumented residents. And there’s much more coming.
This election, the split was Republican-Democrat. Truly, though, the divide isn’t partisan; it’s geographical.
New York City, with 3.2 million Democrats, is lost to the GOP for now; there are only 459,008 registered Republicans there. It’s a long way back.
Upstate it’s a different story, with its 2.9 million Democrats and 2.3 million Republicans. That’s 5.2 million votes a United Upstate caucus could tap to end the city’s predations north of Yonkers, and even send a Unity candidate to the Governor’s Mansion.
With one million people leaving our Empire State in the past decade – more than from any other state –
this is essential to our future.
Salka gets it. He enlisted Assemblywoman Marianne Buttenschon, the Utica Democrat, in his bail-reform repeal drive. He intends to reach out to Assemblyman Bill Magnarelli, D-Syracuse, as well.
The county’s other Republican assemblymen – incumbents Chris Tague and Brian Miller; newcomer Joe Angelino, the former Norwich police chief, all elected – should team up with Salka in reaching across the aisle to other prospects for the United Upstate caucus, as should freshman Oberacker in the Upper House.
COOPERSTOWN – If Monday, Oct. 19, was a test-run on whether the accused would show up for trial under the state’s new bail reform, Otsego County failed.
“We’re two-for-two on no-shows,” said District Attorney John Muehl. “I knew this is exactly what was going to happen.”
Neither Joseph Mitchell, 36, New York City, or Eddie Holton, 35, Binghamton, showed up for trials due to begin in Otsego County Court.
These were the first two trials scheduled since COVID shut down the courthouse in March.
Mitchell was charged with criminal possession of a weapon, a pistol, in the third degree, as well as criminal possession of a controlled substance, crack cocaine, stemming from a May 2019 narcotics investigation.
At a traffic stop, Oneonta police said, Mitchell ran away. A pistol, reported stolen, was discarded along the chase route, police said.
As for Holton, he was charged with possession of a controlled substance, cocaine, in an October 2019 arrest, also in Oneonta.
Both men were released on their own recognizance, with no bail set, as required under the state’s new bail reform.
“The problem with bail reform is that people like this are committing serious crimes, getting released, and then not showing up,” said Oneonta Police Chief Doug Brenner.
“It doesn’t bode well for someone who is carrying a weapon and selling dangerous narcotics,” the chief said. “Who knows how many overdoses these guys have caused?”
Under bail reform, the court is tasked with notifying defendants of their upcoming trials. “We have to babysit them,” said Muehl.
Holton, he noted, had failed to appear in court five times, and had two prior felony convictions.
“Neither of them has ties to the area and both of them have failed to appear in court before,” said the district attorney. “But we can’t take that into consideration.”
Muehl estimated the aborted trials – 60 jurors had already seated – cost county taxpayers $2,700.
“The prosecution got everything together and no one showed,” said Brenner.
“By the time they catch the guy, it could be another year before trial. Memories fade, reports get old, officers retire or leave, so a case just gets weaker and weaker,” he said.
Assemblyman John Salka, R-Brookfield, has announced he will unveil Bill A11067 that, if passed, would “completely” repeal last year’s bail reform, at a press conference on Wednesday, Oct. 21, at the Madison County Courthouse.
“I have spoken with district attorneys, with law enforcement officers and they are so frustrated watching the people they arrest walk free before the paperwork is even finished,” he said. “In many cases, these people go on to re-offend and cause real pain in these communities.”
He also wants to give judges back their ability to set bail in cases where they believe it’s warranted. “That’s what we elect judges to do,” he said.
His challenger, Dan Buttermann, Oneonta, said amendments to the original bill have already been made.
“We don’t need to repeal it, we need to fix it,” he said. “We have to be continually looking for ways to make our communities safe, but also make sure the justice system is fair and balanced for all.”
Warrants for the arrests of Mitchell and Holton have been issued, and Muehl is confident they will be quickly located and arrested.
WAMPSVILLE – On the steps of the Madison County Courthouse here this morning, Assemblyman John Salka, R-121, announced his introduction of Bill A11067, which he said, if approved, would repeal the Democratic majority’s controversial bail reforms of 2019.
Salka said he plans to hold similar press conferences around the state to publicize his measure, including one next week in Otsego County, which he represents.
At his side was Peter Oberacker, Schenevus, the Republican seeking to succeed state Sen. Jim Seward, R-Milford, who declared, “At this time, this bill does not have a Senate sponsor. Come Jan. 1, if I am elected, I can tell you that will change immediately.”
WAMPSVILLE – Assemblyman John Salka, R-Brookfield, has announced he will unveil Bill A11067 that, if passed, would “completely” repeal last year’s bail reform, at a press conference at 11 a.m. Wednesday, Oct. 21, at the Madison County Courthouse.
He will be accompanied by Madison County Sheriff Todd Hodd.
Salka’s district includes Madison, Otsego and parts of Oneida counties.
The intent of New York State’s bail reform law was good – to make the pretrial process equal for all and free from bias. However, the reform bill passed in 2019 had flaws. Although I fully agree that the enacted law needs reform, we cannot return to a system that allows for punishment before a conviction. At the same time, our system must be sufficiently flexible to ensure violent criminals are not allowed back onto our streets.
Bail reform was long overdue, and the state legislature rightly followed the lead of neighboring states to enact changes to the system. Thankfully, some legislators heard the call to amend the enacted law in 2020. These amendments include lengthening the discovery period, allowing more judicial consideration, and applying bail to repeat offenders even for offenses that otherwise would not require bail. These amendments were steps in the right direction because they responded directly to the concerns of citizens and law enforcement, and they did not give up any rights of citizens.
We have the right to the presumption of innocence, and justice reform is about protecting that right and our communities at the same time. Our justice system has never been perfect, but I will work to take every possible step to get there.
I will also seek the funding our local agencies need to enact change. We do not need another unfunded mandate in Upstate New York, especially now when budgets are being squeezed due to COVID-19. As an elected official, and representative, I will continue to seek ways to protect our rights and our communities.
DAN BUTTERMANN Oneonta Buttermann is running for state Assembly in the 121st District.
DELHI – It’s another example of “the bail reform nightmare,” said Delaware County Sheriff Craig DuMond after he was required this week to release a suspect who allegedly forced his way into a Walton home, stole prescription drugs and choked a female occupant.
“It is still very difficult for me to fathom a world where a criminal can physically break into an innocent victim’s home, violently attack the victim by means of strangulation, and be released back into the community,” the sheriff said. “Who really believes this is in the best interests of criminal justice?
“The victims of crimes are real and being ignored as a result of the miscarriage of justice caused by the governor and state Legislature,” he said.
ALBANY – A new poll out Monday shows support for the state’s bail reform plummeting, following weeks of pushback about the new laws from police groups and prosecutors, North County Public Radio is reporting.
The Siena College poll finds that just one third of New Yorkers now think that the January 1 laws that ended most forms of cash bail for non-violent crimes and shortened the time prosecutors have to hand over evidence to defendants is a good idea. When it was first approved last April, 55% of voters like the law.
Under bail reform, county Sheriff Richard J. Devlin Jr. worried dangerous suspects would be freed – and, locally, one stole a truck a day after he was released.
Now, under new rules of evidence, also part of the state’s criminal justice reforms, District Attorney John Muehl worries he’ll be unable to prosecute as many suspected criminals.
“Arrests are way down already,” said Muehl. “Hopefully things will get better, but my prosecutions could go down 50 percent.”
New discovery requirements as part of Governor Cuomo’s criminal justice reforms require that all evidence be turned over to the defense within 15 days of arrest.
“For instance, a speeding ticket now takes two hours for police to process paperwork,” the D.A. said. “Then it’s another hour for me to get everything together, and if the defense objects to my statement of compliance, that’s another two hours.
“I’m not going to have time to do my job and prosecute cases. It’s almost impossible to comply with.”
As such, he said, he worries that he will have to prioritize which cases go before a jury. “I see a lot of people who have more ‘minor’ crimes – harassment, theft – getting passed over by the legal system because we have to triage our cases. Of course, those aren’t minor crimes to the person they’re committed against.”
And of those that do make it to his desk, many will turn into plea bargains. “Up to this point, I haven’t had to forgo prosecuting cases that I believed should be prosecuted as felonies, but now I may be offering pleas to a lesser charge because I just don’t have the time to prosecute. That’s what upsets me. That’s not what I signed up for.”
He also said that the reforms are turning defense attorneys and prosecutors against each other.
“We used to all get along,” he said. “But the level of animosity is up. A lot of them think they can get their guilty clients off on a technicality because they didn’t like how I wrote my certificate of compliance.”
If his statement of compliance is thrown out, he has to try again to comply. But failure to comply within the restricted time limits means the case is thrown out.
Muehl gave the example of a first-degree rape case he is working on. “I’ve always had a very open-file policy,” he said. “But I turned over every shred of evidence and certified that I had given them everything, but the defense doesn’t like my certificate of compliance, and is now saying that they didn’t like the format and that it should be invalidated.”
He will have to ask a judge to uphold that his compliance and statement of readiness are valid. “This is the first time it’s happened,” he said. “There’s no guidance.”
He also said that there are conflicting rules on the books about what evidence he can hand over. “Under the new discovery laws, I have to hand over grand jury minutes within those 15 days,” he said. “But the law says it’s a Class E felony to turn over Grand Jury minutes without a court order! So do I lose my case or am I guilty of a Class E felony?”
And he’s not the only one who’s worried. “I’ve talked to DA’s all across the state and they’re in the same boat,” he said. “We’re all hoping that judges see that and cut out the frivolous nit-picking of the form of the certification instead of looking at the content.”
“I knew it was going to be bad,” he continued. “But I had no idea how bad it would be.”