Since 2019, the number of criminal case dismissals has increased 373%,highlighting a significant shift in how the judicial system is processing criminal charges. Most people are aware that New York’s current cashless bail law has created a revolving door within our criminal justice system. But most people are unaware that New York state created a massive procedural loophole at the same time, and criminals are jumping through that loophole every day.

Despite law enforcement’s hard work to hold criminals accountable, New York created a new defense to EVERY crime, which has drastically slowed cases down, increased litigation and resulted in more technical dismissals. Prior to 2019, there were only two common “defenses” to every crime. The first common defense was: “I didn’t do it.” The second was: “I did it, but … (it was self-defense, I was intoxicated, etc.). These defenses were always evidence-based defenses, meaning there was either a lack of evidence for the charged crime or counter-evidence in support of the defense. Since 2019, however, a third, catch-all defense was added when the criminal discovery statute was sneakily amended within the budget bill (the same bill that created the pro-criminal bail law). This new defense is: “It doesn’t matter whether I did it or not because law enforcement cannot comply with the burdensome discovery obligation.”

This is how it works. Despite the historical requirement that defendants receive police reports, photographs, videos and other relevant information to their criminal charges when requested, and the fact that prior to 2019, many district attorneys (DAs) across New York state had an open file discovery policy to encourage transparency, the Legislature greatly expanded the list of discoverable materials and required prosecutors to automatically gather and disclose all that information to the defendant within a very short period of time. If any piece of duplicative, trivial and/or inconsequential information was inadvertently missed, then the defendant could move to dismiss the case.

Of course, this created a defense attorney’s dream scenario. Remember, a criminal defense attorney is ethically bound to zealously advocate for their clients. They are trying to win, to get all the charges dismissed. This new “defense” has added a weapon to the defense attorney’s arsenal that encourages delay, increased motion practice and more hearings/trials in the hope that some piece of discovery might turn up missing. No matter how overwhelming the evidence, the defendant will attempt to get the case dismissed for a discovery violation, raising serious concerns about justice for victims who may be left without closure or accountability.

This law disproportionately impacts counties with smaller district attorney’s offices because they don’t have the resources to review thousands of cases to find every piece of duplicative, trivial and/or inconsequential item. In those counties, more cases languish, get dismissed en masse or include very favorable plea offers. In our district, the problem is pronounced because the Chautauqua County Public Defender’s Office is three times larger than the Chautauqua County District Attorney’s Office. The office that is ethically bound to represent criminal defendants has more resources than the office that is ethically bound to uphold the law and seek justice.

Although Gov. Kathy Hochul attempted to fix this law in the budget this year, the fix did not go far enough. The law still imposes a massive, and unreasonable, burden on law enforcement by failing to lengthen the timelines for disclosure and by failing to acknowledge that DAs with limited resources across the state cannot possibly know everything that is in possession of the various police agencies that operate in their county. Though some attorneys, judges and citizens will demand that prosecutors and police officers be perfect, perfect is impossible. We shouldn’t be asking our DAs to do the impossible just to keep dangerous criminals off the streets.

Unfortunately, some in Albany still think justice means tying prosecutors’ hands and letting violent offenders walk free. I disagree. As I have stated many times before, the government’s basic purpose is to protect its citizens. The discovery law should be a shield, not a sword. Criminal defendants should get discovery, but cases shouldn’t get dismissed on technicalities.

I’ll keep fighting for a criminal justice system that puts law-abiding citizens first, not criminals. Public safety is not a partisan issue–it’s a public responsibility.

Assemblyman Andrew Molitor represents the 150th Assembly District, encompassing all of Chautauqua County. For more information on Assemblyman Molitor, follow him on Facebook.