SI Advance: Time for change: Current criminal justice system favors the government

By Christopher Pisciotta
May 21, 2019

District Attorney Michael McMahon

District Attorney Michael McMahon writes an impassioned plea to maintain status quo, if not turn back time. We have a flawed criminal justice system that incarcerates poor people who cannot afford to buy their freedom and that allows prosecutors to withhold evidence from people to encourage submission to the prosecution. The old scales of justice tilt in the favor of the government. A tilted scale of justice is injustice. Albany is upending the scales to bring them back in fair balance.

Our old, flawed criminal justice system can drive innocent New Yorkers to plead guilty to offenses they did not commit just to secure freedom from incarceration, to return to their families, their work and schools, and their communities. DA McMahon would continue the use of the current cash bail system, holding people who lack community resources and social services in jail until the resolution of charges, whether a person is accused of stealing a sandwich or possessing drugs as a non-violent felony. People then need money to secure liberty, leaving many sitting in jail, awaiting their day in Court. Many will then be given the draconian choice -- plead guilty to be free, or wait in jail for a trial. Albany enacted the will of New Yorkers who believe that our criminal legal system is unjust and want to put an end to mass incarceration. The vast majority of New Yorkers support these changes.

Our criminal justice system couples cash bail with “blindfold” laws, withholding critical information from the accused. Our current discovery statutes, the laws that set forth the minimal documents and items a prosecutor must provide, allow prosecutors without penalty to withhold key evidence from the accused and counsel until the very day of trial. Prosecutors can withhold and refuse to provide timely police reports, witness statements, grand jury testimony and other forms of evidence that the police and prosecution gathered. New York’s discovery laws are one of the most restrictive in the nation and have been referred as the “blindfold” laws as they force the accused to make vital decisions, to go to trial or to plead guilty, without knowing critical information and evidence. The two critical failures of our system, taking liberty away and withholding evidence, create the perfect environment that led to prosecutor abuse and the innocent going to jail.

Many “progressive” States -- North Carolina, Texas, Ohio, and New Jersey -- rewrote the laws to provide full and early discovery. This allows an accused to make an informed decision and to do it earlier in the process. Full and early discovery reduces the risk of coercive pleas, deters prosecutor abuse and lead to a just and fair result. Despite the fear mongering by prosecutors, the safety and interests of victims of crime are still protected under the law. DA McMahon failed to mention the provisions that allow the court to control discovery to protect victim interests where appropriate. And, crime has not run rampant with greater discovery to the accused. Just cross the Verrazano Bridge and ask District Attorney Eric Gonzalez, where open file discovery has been provided to the accused for decades.

It is concerning when our elected district attorney turns to ’80s images of “wild gangs” and “violent thugs” to scare our community, our state, not to move forward and fix our criminal justice system. These reforms have been long needed. We cannot continue to use bail to force people to give up their day in court. We cannot force people to make such critical constitutionally-protected decisions as to trial without being informed of the nature of the evidence. State after state have shown there is a better way, a fairer balance of the needs of the accused as to the safety interests of the community. I hope DA McMahon will reconsider and join us.