Bad Facts Make Bad Law

In Albany, there are a number of aays that legislation comes about. At times, a legislator will introduce a bill addressing a circumstance that personally affected that legislator. In other cases, a bill will be introduced to address a problem or issue faced by a constituent of the legislator or take on an issue raised by an interest group. Lastly, in many instances, legislation will be proposed in reaction to an event or tragedy that recently was reported in the news. It is in this last instance where the cliché “bad facts make bad law” arises because in the legislature’s haste to react, often the legislation is poorly drafted, results in unintended consequences, and is manipulated for political gain. Too often such legislation is not based on good public policy.

A perfect example of this was the implementation of the SAFE Act, which was rushed through the New York Legislature by Gov. Andrew Cuomo in reaction to the shooting tragedy in Newtown, Connecticut. Since its enactment, some of the SAFE Act has been enjoined by the courts and some of it has yet to be implemented due to the fact that it is unworkable. And, many would argue, all of it was done to appease gun-control advocates as opposed to enacting a policy that will make New Yorkers safer. In essence, bad facts made bad law.

In the last legislative session, a movement to abolish cash bail took flight because of the tragic story of Kalief Browder. Mr. Browder was arrested on a robbery charge and spent three years on Rikers Island without being tried because he couldn’t raise the $3,000 for bail. Eventually, the charges were dropped, but sadly, Browder committed suicide after his release. Everyone would agree that this is not the way the system should work and some reform was necessary. However, in true Albany fashion, legislation that was passed to address Browder’s circumstance went way far afield and we are now facing the serious consequences of its enactment.

As has been reported, law-enforcement officials throughout the state, both Democrat and Republican, have raised serious concerns about the new law. For the most part, the new law addresses two issues: (i) bail; and (ii) pre-trial discovery. As far as bail, under the new rules in most cases, a person who is alleged to have committed a misdemeanor or lower-level felony cannot be incarcerated pending trial. Further, for those who are charged with a more serious crime, a judge can only use the least-restrictive measure possible in order to ensure that that person returns to court. Even in these cases, a judge cannot take into account whether the defendant is dangerous or a threat to public safety. Although the law doesn’t take effect until Jan. 1, New York City (NYC) has already begun to release prisoners who, under the new law if it had been in effect, would not have been subject to pre-trial incarceration. NYC Mayor Bill de Blasio is giving these alleged criminals free Mets baseball tickets, gift cards, and movie passes to entice them to show up for their court dates. In Oswego County, although there will be no early release prior to the law going into effect, it is estimated that roughly 20 percent of the defendants currently held in the Oswego County jail awaiting trial will need to be released, as of Jan. 1.

While receiving less media attention, but as troubling as the bail reform, is the law’s new rule that prosecutors have to provide a defense attorney with all the information that relates to the case that is in the possession or control of the prosecutor within 15 days of the defendant’s arraignment. Prosecutors throughout the state have noted that 15 days is too soon. The cost of gathering this information in that limited time period may dissuade prosecutors from pursuing cases due to limited resources. Indeed, in Oswego County alone it is estimated that this mandate will cost $1 million. Moreover, there is a real concern that turning over information about witnesses within that time period will result in witness intimidation. Many defendants want to find out about a witness, not to unearth exculpatory information, but rather to target and intimidate a witness before a court proceeding. Witnesses are the key to our criminal justice system and we should proceed with great caution when enacting legislation that has the potential of hindering their testimony.

The pursuit of reform to prevent cases like Kalief Brower’s case has resulted in a law that, as it has been given greater scrutiny, will have serious public-safety ramifications. That is why district attorneys and police officers statewide are asking for a delay in the legislation’s enactment. This is a good idea. At times, it is important to take a step back, review what has been done, and make changes that preserve necessary reforms while, at the same time, not creating more problems. This is clearly one of those times and I strongly support delaying implementation of this latest legislation. Let’s not have the bad facts of the Kalief Browder case make bad law.        

William (Will) A. Barclay is the Republican representative of the 120th New York Assembly District, which encompasses most of Oswego County, including the cities of Oswego and Fulton, as well as the town of Lysander in Onondaga County and town of Ellisburg in Jefferson County. Contact him at barclaw@assembly.state.ny.us or (315) 598-5185.