Basic Reforms to New York’s Legal Code Are at Risk as Democrats Lurch Rightward

A push to claw back a process-oriented change in New York’s criminal legal code shows just how readily Democrats will capitulate to carceral demands in 2025.

After years of advocacy, New York lawmakers passed a suite of criminal legal system reforms in 2019. The hard-won changes included the elimination of cash bail for most misdemeanor and non-violent felony charges and an overhaul of the state’s discovery laws, which govern how parties share evidence before a trial. Before the reforms, the state was considered among the worst in the country for defendants’ pretrial access to information. The rules were often likened to a “blindfold” because they allowed prosecutors to withhold basic evidence from the defense team up until the night before a trial — or indefinitely.

But only about 2 percent of criminal cases even make it to the trial stage; most are settled through plea bargains. New York’s blindfold discovery process meant that, in practice, people accused of crimes were sometimes forced to negotiate guilty pleas without even knowing all of the evidence against them.

The U.S. Constitution guarantees the right to a “speedy trial,” and under New York state law, prosecutors are supposed to be prepared to go to trial within 90 days for misdemeanors and six months for most felonies. But the old discovery process created a major loophole; prosecutors could claim they were ready for trial, thus stopping the countdown, even if they hadn’t done due diligence on discovery. This could drag out proceedings over many months, with judges allotting more and more time for prosecutors to provide the legally required pretrial evidence. Prosecutorial delays meant that people accused of crimes would languish in jail cells while awaiting their day in court; in one shocking case, Kalief Browder, a teenager from the Bronx, spent three years on Rikers Island despite not having been convicted of a crime. In 2015, two years after he was finally released, he committed suicide.

The 2019 reforms aimed to resolve these issues by requiring prosecutors to do their due diligence to obtain all evidence and setting forth a strict timeline for disclosing it. Now, if the prosecution fails to comply with discovery law requirements, judges are required to dismiss the case or impose sanctions.

Does this sound like a policy proposal conjured up by the far left? Hardly. This was not a rewriting of the criminal legal code as we know it, but rather modest reforms aimed at safeguarding people’s right to a fair and speedy trial in a state known for disregarding such rights. New York’s discovery laws had not been substantially updated since 1979, and more than a dozen past reform attempts had failed before the new law came into being, thanks to strong opposition from the state district attorneys association.

But just as New York’s 2019 cash bail reforms were rolled back, the state’s updated discovery law is now on the chopping block. Gov. Kathy Hochul has signaled her support for a prosecutor-backed push to gut the reforms as part of the state’s massive annual budget bill. Prosecutors claim, without evidence, that the new law is making it too hard to do their jobs and undermining public safety in the process.

The rhetoric is all too familiar. For years, Republicans have largely succeeded at sowing fear about crime running rampant in U.S. cities, and Democrats like Hochul have been all too happy to echo this false framing. After the police murder of George Floyd in 2020 propelled the movement for Black lives to new prominence, some cities pledged to cut police budgets and reinvest in community programs. GOP politicians frequently claim that the “defund the police” rallying cry has led to a national spike in crime. But analyses have shown that defunding the police, not to mention more transformative changes, hardly happened in practice. From the 2019 to 2022 fiscal years, 20 of the 25 largest cities in the U.S. — most helmed by Democratic leaders — actually saw their police budgets increase. And states that enacted more progressive policies in recent years have already begun to roll them back, sometimes replacing them with “tough-on-crime” policies. As the Brennan Center for Justice, a nonprofit public policy institute, has noted, after New York lawmakers eliminated cash bail for most misdemeanors and low-level felonies in 2019, “Politicized concerns about rising crime during the Covid-19 pandemic drove lawmakers to pass three rounds of revisions to the law.” The changes included new exceptions that allow judges to set bail in more cases.

The battle over the fate of New York’s discovery reforms follows in these footsteps. Hochul claims that easing pretrial evidence requirements would help “streamline” the 2019 discovery law, as prosecutors claim it has led their cases to get dismissed on minor technicalities. But the publicly available data complicates these claims. While case dismissals have risen in New York City since 2019, that trend hasn’t played out in counties around the state, which one might expect to see from a statewide reform.

Scrutinize, an independent group focused on data analysis and judicial transparency, reviewed nearly 300 unpublished judicial decisions from cases dismissed for violations under the new discovery law. “These decisions reveal that judges are dismissing cases because prosecutors regularly fail to meet basic evidentiary obligations, sometimes ignoring discovery requests for months or choosing to withhold evidence,” the report found. “They are not dismissed due to trivial errors or defense tactics.”

A survey of judges conducted by the state’s Office of Court Administration found that, in cases of discovery violations, judges most often gave the prosecution more time to turn over the evidence, rather than dismiss the case outright. New York City judges often differed from judges in other parts of the state in their assessment of the discovery reforms: 51 percent of city judges reported a great increase in case dismissals since the law passed, but only 18 percent of judges from other parts of the state said the same. (Prosecutors outside of New York City, notably, do not have to wrangle with the infamously noncompliant NYPD in order to obtain required evidence.)

It may feel a bit silly to wrangle over technicalities in state law at a time of such heightened criminalization, as Donald Trump spearheads a draconian crackdown on dissent and immigration. But it is important to see Hochul’s proposal to gut discovery reform for what it is — part of the reactionary lurch to the right playing out across the country, which threatens the fundamental rights of anyone who could interact with the legal system. It is dangerous for Democrats to tarry within the false limits laid out for them by the GOP’s “tough-on-crime” talking points. And as elected officials seek to undermine recent criminal legal system reforms, those of us must not lose sight of the ultimate horizon: abolition.