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.

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.

In a widely criticized move, New York Governor prevents Trump-appointed judges from performing weddings

The New York Post reports on the move here. This is really sad and petty, designed only to make an ill-advised political point.

In New York, all state judges are allowed to perform weddings, as well as all legislators and the governor himself. A new law would have extended that power to all federal judges in the state, and passed overwhelmingly in the state legislature. Read the whole thing to see the criticism of the move coming from all sides.

Ugly campaign tactics in upstate New York judicial race

Law.com reports on a campaign mailer sent to residents of Sullivan County, New York, which accuses a Democratic judicial candidate of being a socialist and favoring the legalization of drugs. Her Republican opponent has taken full credit for the mailer, which was designed to look like a local newspaper. The accused candidate has denied the allegations of socialism and drug legalization, and has filed a complaint with the state broad of elections.

Judicial candidates acting injudiciously.

 

(Even more) corruption of the judiciary in New York City

The New York Times periodically turns over the rock known as judicial selection in the Big Apple, and lo and behold, the nasty little critters underneath always seem to be thriving. This time it’s a story on corruption in the Bronx, where a Democratic party boss seems to have punished a local judge for refusing to hire his hand-picked crony as a “confidential assistant.”

What a colossal embarrassment. Why do New Yorkers tolerate this?

 

On the politics of judicial identity

Two recent stories illustrate the slippery role that stereotypes and identity politics play in state judicial elections. In Louisiana, judicial candidate Ron Johnson appeared in campaign ads wearing his twin brother’s judicial robe and calling himself “Judge Johnson.” (His brother is a sitting judge.) Johnson admitted his mistake and accepted responsibility for it, but the intent was clearly to send the message that he was an incumbent judge — and probably to take advantage of the professional goodwill his brother had already amassed on the bench.

Elsewhere, Caroline Cohen defeated three other candidates for a seat on the civil court bench in Brooklyn’s 6th judicial district last Tuesday. But one of her opponents, Tehilah Berman, charges that Cohen — nee Caroline Piela — took her husband’s identifiably Jewish last name shortly before the election in order to attract Orthodox Jewish voters in the district. Cohen apparently also ran ads in Jewish publications with the Biblical injunction “Justice, Justice shall you pursue.” Berman, who finished last in the race, claims that Cohen deliberately presented herself as a devout Jew in order to draw in votes.

We have seen sketchy campaign behavior before, including judicial candidates cynically manipulating their names for electoral gain. Last year, an even more egregious example was set when Chicago lawyer Phillip Spiwack named changed his name to Shannon O’Malley on the theory that a female, Irish name would make him a shoo-in with Cook County voters. Sadly, it worked. In another recent incident, a Nevada judge seeking reelection photoshopped Dwayne “The Rock” Johnson alongside her in a print ad, even though he had never endorsed her candidacy.

But seeing these two most recent incidents side by side was particularly striking, because they both undermine public confidence in the judiciary, but in opposite directions. Ron Johnson’s impersonation of a sitting judge preyed on the positive stereotypes that voters associate with the judicial robe. As I explain in part here, citizens associate the generic judge with a high level of impartiality, dignity, and inherent sense of fairness.  When a judicial candidate dons the robe and is later found to have acted unethically, positive associations with the robe and the judiciary go down.

Caroline Cohen’s name switch (occurring as it did months before the election, and after 13 years of marriage) was arguably even worse, as it sought to take advantage of the modern identity politics that have been sown so dismayingly at the national level. Cohen was banking on Orthodox Jewish voters choosing “one of their own” at the polls, having done no other homework on the candidates or their qualities and qualifications. She turns out to have been correct in that assumption (and indeed, similar behavior has been recorded in various parts of the country for decades), but at what cost? The entire episode moves public beliefs about the judiciary away from the ideals of neutrality, experience, and competence, and closer to the cynical wisdom of “she is one of ‘my’ people, and will put a finger on the scale for me if I ever need it.”

Modern politicians use identity politics divisively to create natural voter bases, and to later whip those bases into a froth with perceived slights against their group. The whole premise is degrading, dehumanizing, and de-democratizing, albeit an effective tool in our troubled times for the small-minded politician. Judges and judicial candidates, however, can never afford to peddle in the cramped and dark politics of identity. In doing so, they give away their greatest assets: the promise of equal justice for all.

Another major conflict of interest in Brooklyn’s judicial elections

The chicanery surrounding judicial elections in New York City, and especially Brooklyn, will come as no surprise to longtime readers of this blog. But here we go again:

Brooklyn lawyers who decide who can get the crucial Democratic ballot line to run for prized judicial seats are getting jobs as legal guardians and referees from the very judges they’re charged with reviewing — and their law firms are appearing before those same judges in active cases.

Of the 25 attorneys listed as serving on the Brooklyn Democratic Party’s judicial screening panel in 2019, at least five have been given jobs as court-appointed lawyers by the judges they’re tasked with reviewing, the Daily News has learned.

Previous coverage of the Brooklyn’s high quality approach to selecting judges here, here, here, here, here, and here.