When listening to criminal trials, I am keenly aware that the prosecution’s case must be presented “beyond reasonable doubt.” The same instinct that leads me toward a passion for the civil liberties protected by the Second Amendment leads me to demand strict limits on the government’s power within the courts. You name it, I’m for it—either as a matter of constitutional necessity or, in cases on which the U.S. Constitution is silent, as a preferred statutory approach. I’m for due process, the presumption of innocence, the Confrontation Clause, the exclusionary rule, the right to remain silent (and not to have that silence used against you), strict injunctions against searches and seizures without a warrant—the whole lot.
Which is how I know that, with its most-recent set of changes to its criminal procedure law, the State of New York has spectacularly jumped the shark. In essence, New York’s leadership has forgotten why we have courts. The core purpose of the pro-criminal-defendant provisions that I just highlighted—presumption of innocence, the right to remain silent, the Confrontation Clause—is to ensure that Americans who have been formally accused of a crime will receive a fair trial. It is not to ensure that, in as many cases as possible, those who have been accused of crimes will walk free. There is a profound difference between a set of rules that ensure that the constitutional presumption of innocence is sustained irrespective of how many criminal cases are pursued and a set of rules that so completely handicaps the government that it finds it tough to bring even slam-dunk prosecutions to conclusion.
For the sake of brevity, we’ll focus here on New York—and it is an egregious example—but this is a problem you can find in Chicago and in many other cities throughout the country. Wherever a George Soros-backed district attorney has won an election, you can find these manmade problems. Indeed, the masterminds of this foreseeable crime wave are all over the nation. They are in the White House (yes, this notably includes President Joe Biden (D)) and in California (let’s just name Gov. Gavin Newsom (D)) and in New York (most notably, Gov. Kathy Hochul (D) and Manhattan District Attorney Alvin Bragg (D)).
How This Dilemma Was Created
Alas, with its new approach, New York has moved away from a system that protects defendants from government excess and toward a system in which it is growing harder and harder for crimes to be evaluated by juries at all. Worse yet, it has done this while also fighting, tooth and nail, against the right of law-abiding Americans to keep and bear arms for their defense. Together, these alterations have created the worst of both worlds.
New York has achieved the lion’s share of this shift via the imposition of a three-step process that, as many of its advocates freely admit, has been explicitly designed to hamstring the government.
First, New York has demanded that prosecutors must declare themselves ready to go to trial within an extremely narrow window of time: six months for defendants who have been accused of multiple offenses, when one of those offenses is a felony; 90 days when a defendant is accused of multiple offenses, including a misdemeanor that carries a sentence of more than three months; 60 days when a defendant is accused of multiple offenses, including a misdemeanor that carries a sentence of less than three months; and 30 days when a defendant is accused of multiple offenses, none of which is a misdemeanor.
Second, New York has ensured that there is so much work for the government to do within that extremely narrow window of time that, in the vast majority of cases, it is guaranteed to fail in the endeavor. Specifically, New York has tinkered with the rules surrounding “discovery” (which is the process by which both the prosecution and the defense collect and share the information they intend to present within a trial) and the rules governing the disclosure of witness information to the defense. Under the state’s new procedures—which demand the collation of anything in the discovery process that “relates” to a potential trial, even if it’s not necessarily “relevant”—prosecutors are obliged to assemble an enormous amount of discoverable material in every case they wish to prosecute, irrespective of whether that material has been requested by the defense or if the case is likely to be pled out. Tellingly, prosecutors have been given just 20 days to complete this task if the defendant is in custody, and 35 days if he is not—an often-impossible assignment that all but guarantees that prosecutors will focus on only the most-egregious cases within their purview.
Third, New York has mandated that, when the government inevitably runs out of time, its case is automatically dismissed, and the accused will walk free without a trial.
Simultaneously, the new procedural rules have made it extremely difficult for prosecutors to assure witnesses of their safety. Prior to New York’s most-recent changes, information about witnesses was handed over to the defense team only upon the commencement of a trial (and not at all if a guilty plea was entered). Under the new system, information about even grand jury witnesses is divulged before the trial has been prepared—even if the witness in question is unlikely to testify at trial. The obvious consequence of this is that, fearing for their lives, witnesses in important cases have grown reluctant to involve themselves in prosecutions; as a result, cases that rely upon witnesses have thus been profoundly weakened or dropped from the docket before they began.
Or, to put it another way: Under the guise of ensuring that the rights of defendants are upheld, the State of New York has assiduously stacked the deck in such a way as to make the prosecution’s job presumptively impossible.
The results of this change have been predictable—and disastrous.
The Predictable Results
Because prosecutors are able to complete their work within the allotted timeframe in only 21% of cases (at most), hundreds of cases that would otherwise have been brought to trial are being dismissed. Per the Manhattan Institute, a think tank based in New York City, the number of dismissed criminal cases in New York City has jumped from 44% in 2019 to 69% in 2021. With misdemeanors, this number is even higher, having risen from 49% in 2019 to 82% in 2021. Demoralized, many of the state’s prosecutors have quit.
Does this matter? It certainly seems to. Between 2019 and 2021 in New York City, at the same time as arrests and trials for both misdemeanors and felonies were decreasing dramatically, shootings increased by 102%, murders increased by 51%, robberies increased by 40%, petit larceny increased 43% and misdemeanor assaults increased 23%. Once, New York was the example everybody gave of the once-violent metropolis that had managed to turn things around. Now, it is a cautionary tale.
That New York’s regression has led to a spike in lawlessness should, of course, surprise nobody, for, as history clearly shows, crime begets more crime. In their famous essay on “Broken Windows” policing, James Q. Wilson and George L. Kelling noted that “if a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken.” “Window-breaking,” Wilson and Kelling continued, “does not necessarily occur on a large scale because some areas are inhabited by determined window-breakers whereas others are populated by window-lovers; rather, one un-repaired broken window is a signal that no one cares, and so breaking more windows costs nothing.”
The same is true of prosecutions. Not only does the government’s decision to ignore low-level crimes tend to lead to a proliferation of those crimes—and, with it, a reduction in quality of life for the law-abiding—but also, because criminals who end up committing felonies tend to start by committing misdemeanors, the refusal to prosecute minor crimes usually leads to an increase in more-serious crimes. Much as we might like to believe otherwise, criminals respond to incentives in precisely the same way as does everyone else, and a system that makes it difficult for criminals to be punished is one of the most-attractive incentives on offer.
And it was all so unnecessary!
Policy Changes are Needed
If, for whatever reason, the State of New York was worried that its defense lawyers did not have enough resources when compared to its prosecutors, it could have increased those resources and brought the two into line; instead, it created a system under which the cost of pursuing a prosecution is so high that prosecutors are obliged to ignore the vast majority of criminal activity, and then patted itself on the back for its enlightenment.
That this is all happening at the same time as New York is working overtime to undermine its residents’ Second Amendment rights adds insult to injury. The gun-control movement’s insistence that Americans do not “need” to keep and bear arms since they are protected by the police has never made much sense; obviously, cops cannot be everywhere at once, and, even if they could, the fact that we have chosen to establish police departments has no bearing on the integrity of our unalienable rights. But that argument becomes entirely farcical when the people who are making it are simultaneously working to ensure that the cops in question are impotent.
New York’s governor and state legislature have built up a thicket of laws designed to inhibit the good guys.
As recent data shows, the upshot of New York’s decision to hobble its own ability to tackle crime is that there has been a marked reduction in the number of arrests and a catastrophic collapse in the number of criminal complaints that are brought to trial or pled out. As such, the position of the State of New York is best described as “you don’t need a gun because you’re not protected by the police.” Which ... well, is not especially compelling, is it?
I wish I were exaggerating when I submit that the only people whom the State of New York is not attempting to inconvenience at present are those engaged in committing crimes. Under its current leadership, New York requires all residents to obtain a purchase permit before they may buy a firearm; it prohibits the sale, ownership and transfer of standard-issue magazines and commonly owned rifles; and, by excluding airports and airplanes from its definitions, it has effectively nullified key parts of the 1986 Firearm Owners’ Protection Act that are intended to protect those lawfully traveling with firearms from prosecution in the anti-gun enclave of New York. In addition, and in spite of the recent ruling in Bruen, New York seeks to impose a “good-character” requirement on the acquisition of concealed-carry permits; it hopes to designate vast swathes of the state as “gun-free” zones; and it is attempting to invert all the usual presumptions governing private property by rendering it illegal for anyone to carry a firearm into a business unless the owner has posted “clear and conspicuous signage” that explicitly permits the practice.
Which is to say that New York’s governor and state legislature have built up a thicket of laws designed to inhibit the good guys, while ensuring that the laws that limit the bad guys can only be enforced in extreme circumstances.
And to what end? If, as seems to be the case, New York does not intend to prosecute those who violate its many firearms laws, then why have them in the first place? The old line tells us that “if guns are outlawed, only outlaws will have guns.” Traditionally, this has been a warning about the unintended consequences of Draconian regulations; here, it serves as an accurate description of New York’s approach. When presented with a “gun-free zone” sign, the law-abiding citizen tends to pause, and the career criminal tends to laugh—especially if that criminal knows that the state’s screwy procedural rules render his being taken to trial unlikely.
There is no claim on Earth so true and so necessary as that each generation must learn for itself the hard lessons of the past. Thirty years ago, New Yorkers came to understand that if they wanted their city to be livable, they were obliged to remove from the streets those who would breach the peace. Eventually, one suspects, New Yorkers will come to understand this once again, but only after they have seen with their own eyes what utopian thinking does in the real world. It took the crime waves of the late 1980s and early 1990s for Americans to demand that their Second Amendment be restored to its position as a first-class individual right. It took the chaos of “Fear City” to usher in a renewed respect among New Yorkers for the law. For now, those lessons have been forgotten by the myopic men and women who run Gotham, but, eventually, they’ll have to remember.