January 9, 2020 — New York
American Jewish Committee (AJC) is urging New York Governor Andrew Cuomo to reconsider, together with legislators, recent changes to the state’s criminal law that in effect favor perpetrators over victims of antisemitic hate crimes.
“One cannot read the new discovery rules without the feeling that the interests of victims do not rank high on the legislative agenda. A fair system of criminal justice would take into account the fears of victims, not just the interests of defendants,” AJC CEO David Harris and AJC New York Region Director Michael Schmidt wrote in a letter to Governor Cuomo.
Meetings with the Jewish communities most directly affected by the recent wave of antisemitic attacks have “reinforced our belief that antisemitic hate crimes targeting Orthodox Jews are generally underreported,” states the AJC letter. “The lack of transparency as to outcomes of hate crimes prosecutions—except for those cases attracting significant public attention—reinforces the skepticism and the reluctance of victims to undertake the burden, and risks, of initiating a complaint.”
Amendments to New York’s Criminal Procedure Law mandate that persons charged with less than class D felonies may not be detained and may not even be subject to a bail requirement at all. Nearly all the antisemitic attacks in Brooklyn are in this category.
The harmful changes also dictate that:
-- Defendants must be released unless there is reason to believe they may not appear in court;
-- Even if defendants fail to appear in court, they must be offered a second chance to appear before a bench warrant is issued for their arrest;
-- A judge is forbidden to even consider that a defendant is likely to reoffend, threaten complainants, or otherwise pose a danger to the community;
-- There are no sentence enhancements for people who commit crimes while on release.
In addition, the new discovery rules, which AJC acknowledges are generally important improvements in criminal justice, mandate early disclosure of the names and contact information of complainants, and the substance of their reporting. “The fear of intimidation is enhanced by the fact that it is virtually certain that the offender will be on the streets, given the bail law amendments,” states the AJC letter.
In essence, “victims of hate crimes see the victimizers walk out of court with what appears to be impunity, often to return to the neighborhoods they share with the victims,” wrote Harris and Schmidt.
Hate crimes should be included in the lists of offenses for which a judge may order bail, and in such cases, judges should be allowed to consider the likelihood that the defendant will reoffend while on bail, Harris and Schmidt assert. Left unchanged, “the rules will inevitably make it less likely that victims will come forward or pursue criminal charges.”
Noting that there are no simple answers to the challenges of improving the fairness of the criminal justice system while encouraging victims of hate crimes to come forward, Harris and Schmidt offer two recommendations. First, develop an educational campaign that would help as many of victims of the current wave of attacks to become familiar with the criminal justice system. And, second, launch a vigorous program of protection, and substantial sentences for persons who intimidate witnesses while on release.