The Interdependent Third Branch

New York judge calls for reform to state bail law

Earlier this year, New York State’s poorly thought-out bail reform law formally went into effect. (New York City courts began implementing it even earlier under the directive of Mayor Bill de Blasio.) The law requires state judges to release criminal defendants without bail except in the most egregious cases. While the law was intended to address perverse effects of existing bail laws on minority communities, it backfired spectacularly from the very start. In December, a woman accused of an anti-Semitic attack on the streets of New York City was released even after admitting her deed; she was involved in another criminal incident less than 24 hours later (and eventually was charged with federal crimes for which bail is required). She was not alone: many stories have identified criminal defendants who were released without bail despite being charged with violent crimes; some of the defendants have even expressed their own surprise at being released. Both de Blasio and New York Governor Andrew Cuomo, who initially championed the legislation, have publicly announced that they have had second thoughts.

The law is deeply problematic because it denies state judges a role fundamental to their jobs: the discretion to determine the conditions under which a criminal defendant should be released. Now some judges are speaking out against it themselves. At a recent forum, Bronx Criminal Court Judge George Grasso called for immediate efforts to change the law:

Grasso, a former deputy police commissioner, acknowledged the deep racial and income disparities that informed the push to overhaul the bail law, but said state lawmakers should amend the measure to allow for judicial discretion in setting bail and remanding defendants considered dangerous.

“The scope of removal of judicial discretion on bail matters in this reform package is breathtaking,” Grasso said in prepared remarks. “New York State is the only state in the United States that does not let judges consider ‘dangerousness,’ but instead resorts to twisted logic.”

“We should stop the charade now,” he continued. “It is my opinion that without significant changes, the current legislation will not only be a missed opportunity for long overdue criminal justice reform, but also a significant threat to public safety.”

This is a noteworthy development. Judges typically do not speak publicly on the state of the law, even laws that directly affect the administration of courts and the justice system. Offering a personal opinion on the validity or effectiveness of a law opens a judge to charges of bias or partiality. So it takes a real crisis for judges to feel the need to speak out so publicly.

And Judge Grasso is right. Whatever its original intent, the new law ties the hands of the courts, makes New Yorkers less safe, and reduces public confidence in the criminal justice system.

“Recruitment crisis” in Northern Ireland’s courts reveals misalignment in candidate and recruiter expectations

Northern Ireland is facing a serious shortage of judges on its High Court, and a recent report on the problem sheds some light into why. The government wants to promote only top barristers to the position, eschewing the candidacies of lower-level judges. But it turns out the targeted barristers are not interested:

Among the startling findings of the report obtained by the Irish News is the blunt admission by top lawyers that it simply does not pay to apply for what in the past was regarded as a promotion, with “considerable rewards still available to barristers and solicitors through non-publicly funded work”.

“As far as solicitors are concerned, the head of the Belfast branch of an international firm asked us rhetorically why he or she would want to take a 50 per cent pay cut in order to become a High Court judge,” the authors said.

“It seems clear, certainly, that in Northern Ireland there is a cadre of high-earning lawyers who, at present, are not likely to be interested in applying to become a High Court judge because they would be significantly better off financially if they stayed in their current job.”

One QC said simply: “I just wouldn’t be interested in the job.”

Continue reading ““Recruitment crisis” in Northern Ireland’s courts reveals misalignment in candidate and recruiter expectations”

McConnell gives “golden gavel” to John Roberts after impeachment trial

After the close of the impeachment trial of President Trump this week, Senate Majority Leader Mitch McConnell presented Chief Justice John Roberts with a “golden gavel.” The token is ordinarily presented to Senators who have sat in the presiding chair for 100 hours. Roberts certainly filled that minimal qualification during his many hours presiding over the trial.

I recently took Elizabeth Warren to task for her trial question that crassly challenged the legitimacy of Roberts and the Supreme Court. McConnell’s presentation can be seen as only a slightly more subtle effort to politicize the Chief Justice for partisan gain. True, Roberts did yeoman’s work in presiding over the trial, all the while maintaining his busy day job (which only involves hearing oral arguments, writing opinions, navigating the personalities and needs of his fellow Justices, and managing an entire branch of the federal government). And in a different era, the presentation of the golden gavel might be properly viewed as a sincere token of appreciation. In this deeply partisan environment, however, it primarily exploits the Chief Justice’s participation to court favor with Republicans — a misappropriation of judicial goodwill for partisan gain.

Warren’s attempt to question third branch legitimacy fails spectacularly

The American political scene is moving at lightning speed these days, with impeachment proceedings, the Iowa caucuses, the State of the Union, and the government’s response to the coronavirus threat all competing for our attention. But I would be remiss if I failed to note the outrageous question that Senator Elizabeth Warren posed during the impeachment trial last week.

All questions, of course, were required to be written on notecards and passed to Chief Justice Roberts, who read them aloud for response by either the House Managers or the President’s lawyers. Here is what Warren asked:

“At a time when large majorities of Americans have lost faith in government, does the fact that the chief justice is presiding over an impeachment trial in which Republican senators have thus far refused to allow witnesses or evidence contribute to the loss of legitimacy of the chief justice, the Supreme Court, and the Constitution?”

Oh, good grief. Roberts has to preside over the trial — it’s right in the Constitution. Calling into question the legitimacy of the entire Supreme Court and the Constitution during a partisan political skirmish was both cheap politics and degrading to the very foundation of American democracy. And she was roundly scolded for the stunt, from observers on all sides of the political spectrum.

This blog has chastised the President and many others for their similar tendencies to attack the courts’ legitimacy when they cannot achieve their political objectives. Let’s add Elizabeth Warren to that list as well. If she truly wants to improve Americans’ faith in government, perhaps she could start by showing appropriate respect for its institutions and design.

New Hampshire courts expand electronic case filing

New Hampshire’s court system is expanding the reach of its electronic filing program, with the addition of civil cases and name-change cases this year. It’s a relatively small amount of new cases (3700), at least in comparison to larger jurisdictions, but it shows the growth and success of the overall New Hampshire program. Of particular interest to transparency enthusiasts is that kiosks in every courthouse allow the public to access the electronic filings of any non-sealed case.

“Myths and Realities” about Trump’s judicial appointments

Many politicians, advocacy groups, and journalists have written about President Trump’s federal judicial appointments over his first three years, with the dominant narrative being that he has transformed the judiciary by appointing more judges, with more far-right leaning ideologies, than any President in history.

Russell Wheeler looks at the data underlying these assertions, and finds the story to be much more nuanced. As with everything Russell writes, the post is worth an immediate and careful read.

Helping courts prepare for public health emergencies

As the world nervously watches the spread of the coronavirus from its origins in China, court systems should be updating or preparing their own pandemic response plans. The National Center for State Courts has an excellent compilation of useful materials here.

Two states aim to reorganize court structure to promote efficiency and fairness

Separate stories this week show how two state governments are working to reconfigure their court systems in response to growing dockets and concerns about cost, efficiency, and fairness.

In Colorado, a bill to create a new judicial district passed through the House Judiciary Committee. The proposal would split rapidly growing Arapahoe County off from the rest of the 18th Judicial District in order to better (and more fairly) allocate resources among the four counties that currently comprise the district. Arapahoe County has seen a recent spike in criminal prosecutions and especially murder trials (a depressing fact for this former Coloradan), and the growing criminal docket led many to believe that placing it in its own new judicial district would be BBC a better use of resources. The bill has broad support. If passed, it would go into effect in 2025.

In New York, the court system itself is taking the initiative to improve its efficiency and administration. This article by Chief Administrative Judge Lawrence Marks points out that consolidating the state’s Byzantine court system (which currently has 11 different trial courts) would save litigants and the public hundreds of millions of dollars every year. As in Colorado, the proposal has strong support but would need legislative sign off.

These are nice examples of interbranch cooperation for the benefit of local residents and taxpayers. More like this, please.

Five reasons why the federal judiciary’s proposed ban on Federalist Society affiliation is a terrible idea

The Wall Street Journal reports today (through a staff editorial) that the Judicial Conference of the United States is considering banning federal judges from affiliating with either the libertarian/conservative leaning Federalist Society or its left-leaning counterpart, the American Constitution Society (ACS). The proposed ban comes out of one of the Judicial Conference committees, the Committee on Codes of Conduct, which addresses issues of federal judicial ethics.

According to the editorial, the current draft of the proposal states, in part:

“In sum, the Committee advises that formal affiliation with the ACS or the Federalist Society, whether as a member or in a leadership role, is inconsistent with Canons 1, 2, 4, and 5 of the Code [of Conduct for United States Judges]…”

“Official affiliation with either organization could convey to a reasonable person that the affiliated judge endorses the views and particular ideological perspectives advocated by the organization; call into question the affiliated judge’s impartiality on subjects as to which the organization has taken a position; and generally frustrate the public’s trust in the integrity and independence of the judiciary.”

Given the ongoing efforts of both major political parties to politicize the judiciary, it’s not hard to see why the Committee is sensitive to the organizational affiliations of its judges. But this idea (assuming it is being correctly reported) is both impractical and unwarranted, for at least five reasons. Continue reading “Five reasons why the federal judiciary’s proposed ban on Federalist Society affiliation is a terrible idea”