"We Desperately Need Reform Regarding Discovery Rules:" A Q&A with Shani Curry Mitchell

Shani Curry Mitchell, a Democratic candidate for prosecutor in New York’s Monroe County, discusses proposed state reforms

Daniel Nichanian

This interview is part of the Appeal: Political Report’s coverage of 2019 local elections.

Governor Andrew Cuomo and state lawmakers have been discussing changes to criminal justice policies like the bail system and the state’s discovery rules, which currently enable prosecutors to withhold evidence from the defense until the day of a trial, including not providing it before a plea deal. The District Attorneys Association of the State of New York (DAASNY) has opposed proposed reforms. Sandra Doorley, the DA of Monroe County (home to Rochester) and DAASNY’s president-elect, issued a series of warnings in February: She detailed her opposition to legalizing marijuana, released a statement cautioning against Cuomo’s proposal to eliminate cash bail, and wrote an op-ed suggesting that Cuomo was not adequately considering victims. Bail is an important issue in Monroe; a 2018 report by the New York Civil Liberties Union found that the county had held a large number of people on bail for low-level charges.
Also in February, the Monroe County Democratic Party endorsed Shani Curry Mitchell, a former assistant district attorney who now works as a municipal attorney in Rochester, in the county’s 2019 DA election. Doorley, a Republican, is running for re-election, and she could meet Mitchell in November’s general election. The Political Report talked to Mitchell on Tuesday about her views on the proposed changes to bail and discovery, as well as about marijuana and DAASNY. The interview has been condensed and lightly edited for clarity.
State officials are considering proposals to reform the state’s bail system, some of which would end the use of the money bail system. Do you support ending the use of cash bail, and if you became DA and the status quo were still in place, would you take steps if any would you take to limit pretrial detention in Monroe County?
I definitely applaud the steps taken by the governor and other lawmakers to address the inequality found in the criminal justice system. Unfortunately, the poor find themselves in pretrial detention because they are poor. I believe that police should utilize their discretion to issue more appearance tickets. That would reduce the number of persons who are held pretrial. Police have wide discretion to decide who should be issued appearance tickets. I agree with many parts of the governor’s plan in ending the monetary bail system. I do believe that monetary bail should not be imposed on certain nonviolent misdemeanors and felonies. Of course, with felonies involving victims of violent crime there would need to be some sort of review of risk factors. But I also think that we should utilize the pretrial services that we already have in Monroe County. They do a great job in assessing risk, and also monitoring individuals and getting them back to court.
For nonviolent misdemeanors and felonies, I would set a policy in my office that we would not ask for bail. In the cases where we would have to address risk factors for those violent situations, we would look at all the potential risk factors, but we would also utilize pretrial services.
One part of the governor’s plan that gives me pause is the hearing that he is suggesting for pretrial detention when the judge wants to impose bail and when the prosecutor requests it. It amounts to a preliminary hearing. What the governor is proposing is that we have a hearing on the strength of the probable cause or reasonable cause for the detention period. I would caution on that because early on in the case there’s still many evidentiary issues that we have. We should deal with bail separately from the merits of the case. But I would institute policies within the office that on the cases that we have to request bail, we do so in a manner that we are recognizing protection of the victim, of course, but also recognizing how can we ensure that we take into account the defendant’s ability to defend his case and assist in his defense.
So for those offenses where you say you would not use money bail, nonviolent misdemeanors and felonies, you would support seeking pretrial release for defendants on their own recognizance?
Yes, when I say not seeking any type of monetary bail—we wouldn’t ask for it, and then we would also utilize pretrial release.
Another major issue right now is the proposal to reform the state’s discovery rules by requiring that prosecutors provide relevant information to the defense within 15 days of arraignment. Do you approve such a requirement, and would you follow such a rule if you became DA and reform was still not adopted?
We desperately need reform regarding discovery rules. I practiced first in the state of Georgia as a prosecutor, and this was not an issue. We provided discovery well in advance of trial, probably within 30 days of arraignment or indictment. This was not a practice I was used to when I began practicing here in New York. I believe, as the governor lays out, that before any individual takes a plea, they should have all the information laid out before them. If there’s a something that need protection as to witnesses, for child victim or for witness intimidation, we have mechanisms in place already that would address these issues.
I applaud the bill that’s out there by Assemblyman Joe Lentol and Senator Jamaal Bailey, the discovery bill, as well as the governor’s proposals. I applaud their actions. But we shouldn’t have to wait on legislation to do that. That is something that I would definitely set out in my office, to provide what we should have at the time of arraignment, what type of discovery should be provided, and then within 45 days of trial at least what needs to be provided to defense counsel. And if there are concerns as to tempering or anything else, we would utilize the mechanisms that we have to make sure that victims and witnesses are protected.
In an interview last month, your opponent Sandra Doorley indicated concern with legalizing marijuana, and she said that she had not adopted a systematic policy of declining to prosecute marijuana possession cases. What are your views on marijuana reform: Should it be legalized, and if it still not legalized when you take office would you adopt a policy of not prosecuting its possession?
I won’t be prosecuting violation and possession marijuana cases. I won’t be. You have Albany, you have Manhattan, you have Brooklyn, you even have Buffalo, who have come out and said that this is the policy we are instituting in our areas. It doesn’t make sense that Monroe County would still have a policy where we are prosecuting marijuana possession cases. Whether it should be legalized or not is not my decision to be made. We just know that it’s moving in that direction.
District Attorney Sandra Doorley is part of the leadership of the District Attorney Association of New York, which has drawn criticism from reform advocates for opposing criminal justice reforms recently. Other candidates running for DA in the state have indicated that they would not join DAASNY if they were elected this year. What is your view of the role that DAASNY plays or should play in the state, and would you join the association if you were elected?
I believe that the association can be a powerful tool here in New York State. The association of District Attorneys can assist legislators in guiding reform as it relates to criminal justice. They should be in the forefront of legislation, assisting legislators. I have not yet made a decision as to whether or not I would join such an association. But I think in order to move them in the direction of being in the forefront, you would have to be part of the association, and not on the outside. I haven’t made that decision but I really think that it should be the role, to be the leaders of criminal justice reform and make sure that we are on the right side of justice.
In recent years, a number of prosecutors have been elected across the country on platforms of targeting mass incarceration, and they have talked about the role of prosecutors in proactively reforming the criminal justice system, addressing inequalities and the scope of mass incarceration. How do you think about the role that a district attorney plays toward mass incarceration?
Absolutely. You have to take a look at, how are we handling our cases, especially our nonviolent misdemeanors and felonies? Can we push those more through community based program, try to fix those issues that plague the defendant so we can address the issue of recidivism? And how are we addressing our violent cases? There are those individuals that we know are going to prison based upon their actions: How are we addressing the amount of time that we are asking the judges for? We have to be cognizant of that.
We have to, of course, look at how do we make our victims whole, how do we do protect our society. But we all know that approximately 95 percent of them are coming back out. That’s why I’m saying, those misdemeanors and nonviolent felonies, we have to do a better job of addressing the issues that plague those individuals so we can hopefully keep them from reentering the system.
We also have to do a better of outreach in the community. That means we have to get more of our prosecutors doing community service. I believe that if we engage in more community service with young people, educate them on the criminal justice system, we can stop that school to prison pipeline that has been talked about. I think we have a responsibility in that as prosecutors. There’s a program that I was part of that was born out of the Brooklyn district attorney’s office when i was a prosecutor in Atlanta, it was called Legal Lives. We had a curriculum that taught fifth graders about the criminal justice system. The idea was that assistant district attorneys would partner with schools in the community and taught them about the criminal justice system in the hopes that they wouldn’t enter into the criminal justice system. The idea is that if we invest in the community, then maybe those lives that we touch they wouldn’t necessarily enter into the criminal justice system. That’s also the responsibility of the district attorney’s office. That also addresses mass incarceration because we’re breaking up that school to prison pipeline.
We have to address also how we are handling youthful offenders. In New York, we now have raise the age, so we’re no longer going to have 16 and 17 year old in our courtrooms. But we are still going to have 18, 19, 20—parents are still responsible of up to 21 year olds—we still have to look at how we handle those individuals. They’re still kids. We have to take a look at how we address those young people, because they’re still young people, they’re still developing. It’s the responsibility of the district attorney’s office to look at all of the people entering the criminal justice system in order to address the concept of mass incarceration.