Since just before the beginning of the pandemic three years ago, New York residents have been living in a post-bail-reform world.
The idea was to right a glaring injustice and protect those accused but not yet proven guilty of any crime from being incarcerated before their trial as a result of their lack of financial wherewithal. According to the polls, Democrats for the most part supported it, and most Republicans opposed it.
The effect of the law, contended its opponents, was that crime is on the rise, a direct result of violent offenders released back onto the streets to commit further outrages against the innocent. Such outcomes would have been prevented had the law’s supporters not committed us to anarchy.
This is a rough and ugly sketch drawn in blunt chalk intended only to represent the general state of affairs understood through anecdotal opinions, social-media posts, and partisan talking points. State jurisprudence has been compelled to change. Justice remains blind, but has been given a softer pair of handcuffs (bail reform), and has had some of the sand removed from her hourglass (stricter adherence to discovery time frames).
It seemed to make sense to address some questions to two Ulster County legal practitioners who have had trial experience, local experts of the law both, who may well oppose each other in the November election.
Emmanuel “Manny” Nneji currently serves as chief assistant district attorney of Ulster County. Michael Kavanagh has served previously in the same position and currently works for the public defender’s office on top of his work for a private law firm.
Nneji, 62, was born in Nigeria an attended university in Buffalo and New Paltz. Kavanagh was born in Staten Island, but grew up in the Hudson Valley. Kavanagh attended university in the Bronx.
Both men were asked to help parse legal reality from political self-interest. The interviews were conducted separately.
Who’s tougher on crime?
The changes in bail reform boil down to something called the least restrictive means. This refers to the lightest touch that can be employed to compel someone accused of a crime to return to court.
“I’m comfortable with bail reform,” says Kavanagh. “I think something needed to be done. It’s absolutely wrong that two people charged with the same crime have the same bail set on them. One gets out because they’re a person of means, while somebody else sits in jail because they’re not. That’s absolutely wrong. I don’t dispute that for a second. What I have an issue with is that if somebody presents a clear danger to the community, judges don’t have the discretion to set bail.”
Both men concur on this point.
“When you’re talking about the violent offenses, and the individuals who commit the violent offenses,” says Nneji, “and they get out and do it again, I think the judges should be given discretion to make a determination whether bail should be set, as long as that least restrictive condition is left up to the court’s discretion.”
Before the reform, judges had great leeway in their legal purview to look into and make their decision based on their experience, to identify whether somebody was a habitual offender who had proven time and time again that they were not willing to return to court on their own volition. These repeat offenders understandably were presumed less innocent than the others, based on the record of their behavior.
“We’re the only state in the whole country,” says Kavanagh, “that doesn’t allow judges that discretion.”
The incarceration of accused individuals prior to trial on the assumption that their release would not be in the best interest of society and might result in the commission of additional crimes was outlawed in New York State a few decades ago.
“I think that the strength of the evidence against them can be a factor,” says Kavanagh. “The dominant factor is, Will this person return to court? And so the least restrictive means necessary to get them to return to court is ideally how the system supposed to work. And I’m very comfortable with that.”
While both men have similar opinions on this matter, it’s Nneji who will have to deal with the reactionary playbook and will have to contend with the perennial accusation that Democrats are soft on crime. Kavanagh, who registers as an Independent, has received the Republican Party endorsement.
“Well, I know people throw that phrase around,” says Nneji. “Weak on crime, right. But to them it’s only a matter of political pronouncements as opposed to dealing with the reality. You will not find a Republican in this county who has been tougher on violent crime than I have been. You will not. And they will tell you that themselves. But of course, they’re going to throw those words around because I’m a Democrat.”
An incredible workload
Changes to discovery procedure, affecting how much time is allotted for the prosecution to share its evidence against the accused with the counsel for the defense, came about in 2020. The new amount of time after the accused is arraigned for the prosecution in a case to meet its initial discovery obligations is just 35 days on the outside limits., but can be as little as 15 days.
“Discovery is a very important aspect of what we do. It’s all about fairness,” says Nneji. “The burden is on us to prove the case beyond a reasonable doubt at the outset, and we have our obligation to share, to be fair, to seek justice that way when somebody is convicted after trial the community can have a sense of assurance that the right person was convicted.”
Across the state, a result of the lower window for discovery has been the exhaustion of assistant district attorneys, who found themselves saddled with an increased workload without a commensurate increase in staff or resources. Many quit during the first six months of the change in procedure.
“When it came into effect [in January 2020], everybody was struggling to figure out what we needed to do,” says Nneji. “And when I say everybody, all the 62 DA offices throughout the state were dealing with this. The workload was incredible. And because of that you have assistant DAs who, it’s supposed to be a nine-to-five job, and all of a sudden, it turned into seven o’clock in the morning till ten o’clock at night. And it was endless. You know, we all have our families, and it was difficult to keep up, and people started to quit the job.”
Which made an already difficult job worse. The Ulster County DA’s office eventually rightsided itself, hiring a full-time discovery team.
“It is onerous,” agrees Kavanagh. “It requires a lot of collaborations and some of the work that is required now is almost unnecessary, because there are certain items that are required to be turned over that are voluminous and repetitive and cumulative. But that’s what the legislators decided to do. And that’s the law. So we all have to deal with it.”
Kavanagh notes that in this area judges still retain the power to grant extensions, and can and will make liberal use of that prerogative. “The judge has a number of remedies at its disposal,” says Kavanagh, “including adjourning the case out a little further so that once the defense gets it, they have time to adjust their case but they get an opportunity to evaluate what’s been turned over and revealed with their clients.”
More in common
Based on the points raised each with Nejii and Kavanagh in conversation alone, one sees more in common than in contrast. Kavanagh notes that he would have been amenable to the Democratic Party nomination. He laughs as he alleges that Nneji is more conservative than he is. But the general election contest is still eight months away, more than enough time for both professionals to put daylight between each other’s political positions.
Of course, it would be a pleasant surprise if both men, were their candidacies to reach the general election, ran purely on policy and civil discourse instead of bread and circuses.
In a perfect world.