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Tiffany Hansen: It's The Brian Lehrer Show on WNYC. I'm Tiffany Hansen filling in for Brian today. Now, we are turning to the New York state budget, which is officially 18 days past its deadline. That delay has been due in some part to a standoff between Governor Hochul and top Democrats in the legislature over the governor's proposed changes to the state's discovery laws. We'll talk about what that means, who's proposing what. As of Tuesday, it does seem that both sides have struck a tentative framework deal, however potentially clearing the path for a final state budget agreement. Here's Governor Hochul on Wednesday with a football metaphor for the budget deal.

Governor Kathy Hochul: As a football fan, we're not in the end zone. Maybe around the five-yard line, that close, okay? I know one thing from football, you don't spike it until the game's over or until you get the touchdown. That's why we're going to wait until this gets absolutely buttoned up.

Tiffany Hansen: In the meantime, state-funded services are awaiting the expected $250 billion spending plan that includes the MTA and public schools. Joining us to talk about the latest is Jon Campbell, our Albany reporter here at WNYC and Gothamist. Hi, Jon.

Jon Campbell: Hi, Tiffany.

Tiffany Hansen: Guess you should have ended that little football metaphor with "Go Bills" in your opinion, right?

Jon Campbell: Well, in her opinion too. We're both Bills fans.

Tiffany Hansen: You are of like-mind.

Jon Campbell: That would cloud my judgment.

Tiffany Hansen: You are of like-mind.

Jon Campbell: Absolutely.

Tiffany Hansen: Listeners, we'd love to have your questions, comments as it concerns the New York state budget and Governor Hochul's performance in and around budget negotiations. Do you have anything you would have liked to see her take a firmer stance on? Do you have questions about this discovery law, the discovery laws that she was talking about, about the anti-mask bill that she has also been addressing as she gets into this five-yard line here to use her metaphor? 212-433-9692. You can call us. You can text us at that number.

Jon, I mentioned it, this discovery law situation. All right, it's a little complicated, I will admit, because I was digging into this over the past weekend. Discovery laws are an instance where a prosecutor in a case must present evidence to the defense in a timely manner. Now, there's some machinations happening even between Democrats here. First of all, can you clarify for us what we're talking about when we talk about discovery laws? What happened? What does Kathy Hochul think should happen and what do Democrats also think should happen? It's very in the weeds here.

Jon Campbell: Yes, absolutely. What we're talking about are these laws that set the process and deadlines for exchanging evidence before a criminal trial. If you are a defendant in a criminal case, you have the right to see the evidence that's going to be used against you. For a long time, defense attorneys had made the case that prosecutors were just sitting on that evidence and then turning it over at the last second so that when defendants were weighing whether to take a plea deal or whether to go to trial that they didn't have all the information that they needed.

It forced a lot of them into pleas. That's the defense attorney's case. In 2019, then-Governor Andrew Cuomo and state lawmakers reformed those laws and tied them to speedy trial deadline, the speedy trial process, I should say, and basically set stricter deadlines for prosecutors to turn over all the evidence they have. Now, what has happened since then, according to the governor and prosecutors, is an uptick, a significant uptick, I should say, a not-insignificant uptick in case dismissals, right?

Tiffany Hansen: That's the nut of her critique, right?

Jon Campbell: Right. That's exactly the nut of her critique and prosecutors' critiques because the District Attorneys Association, specifically, the New York City district attorneys, are the ones that are really, really pushing for this. Melinda Katz is the Queen's district attorney. She says that 27% of all cases that she processed last year were dismissed. She blames some of that, not all of that, but some of that for the discovery reforms in 2019. There is a debate over how to change this, whether they should change it. Some Democrats in the legislature don't want to change it at all. The governor has made it a major priority in this budget process to get it through. That led to Tuesday, when we had this framework, conceptual agreement. A lot of qualifiers there that we learned about.

Tiffany Hansen: Well, it does seem like we're revisiting this pretty soon after legislation was passed. Has anybody brought that up like, "You know what? We just did this"? Is it strictly because we've seen, as you point out, a not-insignificant uptick? Is that really what's behind it?

Jon Campbell: Well, a couple of things I'd say to that. One, I would say anytime that the state legislature and the governor approve major legislation, there are often tweaks, changes that need to be made in the years that follow as they see how, on the ground, it's been implemented practically how it's going to affect. It's not unusual for something like this to happen, but this is something that defense attorneys and legal aid advocates are very, very wary of because they don't want to roll back these reforms.

They say that these reforms were necessary to ensure that defendants know what they're facing. A lot of progressive Democrats and even some kind of center-left Democrats tend to agree with that while others do think are taking the side of the prosecution and saying that those reforms maybe went a little too far. We need to bring them back into focus a little bit here. That is the central debate that's going on, although they do seem to have reached compromise in the last couple of days.

Tiffany Hansen: Well, they're not the only ones that are pushing back on the governor. The New York Bar Association, The Legal Aid Society have come out against what the governor has said they're pushing back, right? Tell us why and what their argument is.

Jon Campbell: Well, the general argument from those who are pushing back is we don't need to change the laws. Prosecutors need to improve their processes. These reforms were righteous and that the reason for them was clear and that rolling them back would be to impede progress on that front. Now, the governor says she still believes in the general concept of the 2019 law but that things need to change to balance out the playing field a little bit.

The big thing here is the governor and prosecutors will bring up these stories of, "This case happened and the 10th body cam that had duplicative footage wasn't turned over to the defendant and the case gets dismissed." The general debate, the negotiations that have happened between the governor, legislative leaders, and district attorneys, actually mostly between lawmakers and district attorneys in recent days, has been about, how do you hone in on what actually harms a defendant's case and what is actually just ancillary and shouldn't result in a dismissal?

One of the ways they seem to be honing in on that and, again, we have not seen any bill language yet, so we don't know exactly how, but one thing they do seem to have agreed on is to allow judges to consider prejudice in some form, basically giving judges some level of autonomy to decide whether or not missing evidence that wasn't turned over in a timely manner actually harms the defendant's case and the case should be dismissed or didn't actually harm the defendant's case and the case can go on.

Tiffany Hansen: The governor has painted this as an issue of public safety. I'm curious. What's her thinking by labeling it as such and what does she mean by that? What does she mean by that?

Jon Campbell: Well, what does she mean by that? What she means by that is if cases are getting dismissed on technicalities, nobody wants that, right? People want cases decided on the merits, not on a technicality of whether ancillary evidence was turned over in a timely manner. That's her case. Defense attorneys would critique that significantly. In terms of a matter of public safety, she's saying cases are getting thrown out on technicalities and potentially dangerous people are let back out onto the streets because of a technicality.

That's interesting in a couple of different ways. For one, when the governor ran for election in 2022, which she won, she won her first full-term, public safety was used against her in a big way. Lee Zeldin was the Republican candidate. He made that his biggest issue and really hammered her on the issue of public safety. She has since tried to bolster her case on public safety. She's up for reelection next year. She wants to be known as a public safety candidate even if that tends to put her more in line with, say, Republicans on some public safety issues.

Tiffany Hansen: I want to talk about a comment from Deputy Senate Majority Leader Mike Gianaris, who was on CBS 6 Albany earlier this week. Let's listen to it, Jon, and then we'll talk about it.

Senator Michael Gianaris: Every legislator will tell you that there's no reason why a non-budgetary item like that should be holding up the actual budget of the dollars and cents of how the state functions, but this has been a technique of governors for many, many years. I think when the budgets are late like this, it ends up blowing back on the governors themselves. Hopefully, that gets figured out so we can close this down.

Tiffany Hansen: I think the complaint there, if I can summarize the deputy Senate majority leader's comments, is this is a policy issue. This is not a budget issue.

Jon Campbell: Yes, two things to that. One, there is some money for district attorneys to better comply with discovery. That's been an issue over the years as well. You could make the case that there is a budgetary impact on this policy item. That said, it generally is more of a policy item than a fiscal item. There are many other things that the governor has insisted upon as part of this budget process that are strictly policy. You mentioned the potential mask restrictions.

As of this moment, it seems she's still pushing for some sort of restrictions on wearing masks in public while you're harassing or intimidating somebody. That is something that seems to be still on the table. There's a lot of debate within the legislature about that. That's not a budgetary item at all. Governors like to do this because it increases their leverage. When the budget is late, state lawmakers don't get paid. Their paychecks are withheld until that budget's done. It's another leverage point for the governor.

Tiffany Hansen: Jon, I want to talk more about the mask issue that you brought up there. We're talking with Jon Campbell, who is our Albany reporter here at WNYC and Gothamist. We're talking about the state budget, of course, which is many, many days now past due. All right, Jon, we have a lot of folks interested in this mask issue, so let's just bring in a caller here. We have Crystal in Bushwick. Hi, Crystal.

Crystal: Hi, good morning.

Tiffany Hansen: Yes, your comment.

Crystal: Awesome, so I have been masking since 2020 and I never stopped. For me, it's sunglasses. I also don't get sick, which is pretty nice. I'm immunocompromised now as well following about with COVID a couple of years ago. This has been a big issue. I'm not Jewish and they're using Jewish and anti-Semitism as a propellant for this. I'm looking to my peers, my colleagues, and specifically a group called Jews for Mask Rights, jewsformaskrights.com, who've been putting out the call to get in touch with your senators, get in touch with your representative.

I've spoken to my state senator in Julia Salazar's office. She opposes this. I've spoken to my representative, Maritza Davila, and she was still gathering information. Everything is pointing to this being a misguided attempt to control the public. How am I supposed to prove that I'm immunocompromised every time I'm going out? What if a cop just wants to get upset with me on the train for wearing my KN95? The language is too vague. This shouldn't be a policy point in this way, nor does from everyone that I know. My friends and community do not feel as it's going to make them safer, specifically within the Jewish community.

Tiffany Hansen: Crystal, thanks so much for the comment this morning. We appreciate it, Jon, I'm wondering specifically about this point of policy really. Is it something that is similar to what's in place in Nassau County right now? I think folks will remember that Nassau County enacted a mask ban last year, making it illegal to wear a mask in public to hide someone's identity, with the exception for health or religious reasons. Is what we're talking about here on the state level similar to what happened in Nassau County?

Jon Campbell: The short answer is no. The governor has backed a bill in the legislature that would create a violation of masked harassment. That is, basically, if you are wearing a mask with the intent of intimidating or harassing somebody, then you could be charged. If you commit regular criminal harassment while you're wearing a mask, you could face stiffer penalties.

Now, that's really difficult to enforce, as the caller just said, because how do you determine what is intimidation? How do you determine whether you're wearing the mask in an intimidating, threatening way? That leaves a lot of room for police to decide. Actually, our colleague, Jimmy Vielkind, actually tried to make this point with the governor and press the governor on this point. He wore a mask to a press conference and said, "I'm wearing a mask. Is this threatening? Is this intimidating? How can you tell?"

The governor said, "Well, it would be laid out in the legislation how that would happen." We have not seen any language from her publicly on this bill language, I should say. There is just a deep divide in the Democrat-led legislature about whether or not to do this. It's becoming increasingly difficult to see a path where they reach consensus. Excuse me. To this point, the governor has not dropped that out of budget negotiations, but that's one that we're going to be watching very closely to see whether she changes course in service of getting a broader budget deal.

Tiffany Hansen: Here, we see her stepping forward with another "public safety concern" as we were talking before about her framing the discovery laws, the reforms to discovery law that she's looking for as framing it as a public safety issue. We're seeing this again here. I'm wondering. The cynic in me is saying, "This is all just politics on her part." She's framing these issues this way. She's bringing this up in this way. She's "causing" this delay because of whatever potential political points she might get from making herself look strong on public safety. Is that inner-critic, inner-cynic correct?

Jon Campbell: Journalists, cynical? Come on.

Tiffany Hansen: Come on.

Jon Campbell: What are we talking about here? I would say it's twofold. There is political benefit. The governor has clearly made that calculation that there is political benefit to her becoming the public safety governor. Just like Mayor Adams was swept into office running on a campaign of public safety. She's trying to do that in 2026. The two issues she keeps bringing up over and over and over again as she pushes her budget policies or her budget positions, I should say, are public safety and affordability.

That's clearly what she's going to base her campaign on in 2026. Yes, there is a political aspect to this. They're politicians. That's how it goes. On the other hand, when you do look at public opinion polls, et cetera, the perception of public safety is very important to people on the street in New York City in particular. On the one hand, yes, it's political. On the other hand, it is something that is on people's minds at this point in time, this particular point in history.

Tiffany Hansen: One of the other issues that I understand is a sticking point is this involuntary commitment. Talk to us about where the sticking point is there and how that fits into our narrative here of public safety concerns.

Jon Campbell: Yes, this is an issue of, when can you involuntarily take somebody off of the street against their will and have them committed for mental health treatment? This is an issue that has come up particularly on the New York City subway system. When you have people on the streets or in the subways who are refusing treatment, refusing to be taken to a hospital, when can you take them off the street and do that?

This is something the governor and Mayor Adams both want to make it easier for authorities to force somebody into that treatment. Mental health advocates, civil rights advocates, civil liberties advocates, I should say, are very, very wary of that. There's debate right now about what that language should be. How do you ensure that it applies when somebody is a harm to themselves or others?

Should it apply if somebody is a harm to themselves but not a harm to the broader society at large? These are all the debates that are happening right now. They do seem to be nearing a deal on that. They have not announced any conceptual agreement, but they seem to be nearing a deal. One of the things they're still debating is how to set up maybe a state system where municipalities can get assistance from the state as they navigate these laws and try to figure out whether they're in compliance.

Tiffany Hansen: One of the things that came across our desk this past weekend was an endorsement of sorts from former Governor George Pataki, who basically said, "Good on the governor for holding firm." What do you make of that?

Jon Campbell: Well, the governor is a Republican. I'm sorry. Governor Pataki is a Republican. Governor Hochul is a Democrat. It's notable in that sense. It's also notable because George Pataki was governor in 1999 when he got that key clause in state law that says that lawmakers have their pay suspended while the budget's late. He is well-versed in the strategies of a late budget. He was able to extract that really key leverage point from the legislature in exchange for a pay raise, by the way.

I don't know. It's interesting on some level, but I don't think it's necessarily surprising because George Pataki had many late budgets as most governors, as former governor Cuomo did. He said the governor should hold out. I think it is interesting that a lot of the governor's policy proposals are being backed by Republicans. Republicans in the legislature have said that they view some of these things on involuntary commitments, on discovery as common sense. I think that is the interesting part of it that Republicans in general seem to be on board with the governor's policy agenda here.

Tiffany Hansen: To your point, these are politicians. That also must be a political calculation on her part.

Jon Campbell: Well, yes and no. She needs to do very, very well with Democrats to win, right? She has to run up the score in New York City. She has to--

Tiffany Hansen: Speaking of which, her approval rating is not great.

Jon Campbell: Her approval rating's not great, but somebody who needs to run-- If she is to lose, somebody needs to beat her, right? There aren't any candidates out there that are particularly on the Democratic side, I should say.

Tiffany Hansen: On the Democratic side, yes.

Jon Campbell: For a primary that are particularly well-known across the state, she still would be likely the favorite in a Democratic primary. We're a long way from 2026 still.

Tiffany Hansen: Are we, though?

[laughter]

Jon Campbell: It's getting closer every day literally. Literally getting closer every day.

Tiffany Hansen: Okay, so we're talking about a late state budget. I can't let you go without putting you on the hotspot. Are you and I still going to be talking about this next week?

Jon Campbell: Well, I'm going on vacation next week, so we're not going to be talking about it, but I'm sure you'll talk with my colleague, Jimmy Vielkind. Yes, almost certainly. There are a lot of things that still need to happen, right? They need to come to a conceptual agreement. They have to come to an agreement on the basic concepts that they're all there, then they have to put it into language. There's 10 different budget bills. All of them have to pass separately. There's a couple of days of voting to be done. There's a lot that still needs to happen. I think best-case scenario, end of next week could be a finish here. There are speed bumps on the way to that, so it could get pushed further and further out.

Tiffany Hansen: After Jon's vacation. All right, Jon Campbell, Albany reporter here at WNYC and Gothamist. Jon, thanks and enjoy your time off.

Jon Campbell: Thank you.

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