Judicial Resistance to New York\u27s 2020 Criminal Legal Reforms

This Article seeks to examine judicial opposition to New York’s 2020 criminal justice reforms in the context of existing scholarship on judicial organizational culture to understand why judicial obstruction occurs and how it can be addressed. New York’s 2020 criminal legal reforms sought to reduce pretrial detention and to provide greater access to discovery for the defense by curtailing judicial discretion to set bail and judicial power to excuse prosecutorial discovery delays. But judges opposed the law both surreptitiously and openly through defiant opinions, administrative adjustments, and routine court actions that undercut the reforms’ intended effects. Scholars such as Malcolm Feeley, Brian Ostrom, and Roger Hanson have written about how the informal organizational culture of a court system can be an impediment to reforms. Their analysis applies to New York’s 2020 reforms and provides insight into why this specific resistance occurred and how it can be addressed. The judiciary was included in planning and discussing the 2020 reforms and the reforms sought to remove judicial discretion in the matters of bail and discovery. Yet when it came time to implement the change, judges used other powers to avoid releasing individuals and to avoid sanctioning prosecutors. This is at least partially due to New York’s judicial appointment scheme which makes the judiciary sensitive to structural narratives concerning public safety and court leniency. Although these reforms were democratic and popular, judges were not sufficiently incentivized to properly implement the changes. If reforms are to succeed, the popular and political will to pass the reforms must extend beyond the passage of the law and must also create mechanisms to scrutinize, guide, and support the judiciary’s implementation of the law

Counseling Oppression

Critical scholars and public defenders alike have grappled with the contradictions at the heart of counseling clients in a carceral system. Systems of oppression operate within the public defender - client relationship because the defender’s role in translating the law also enforces its inequities. Counseling can obscure the workings of the system, providing an illusion of choice despite privileging certain forms of knowledge and tactics.But the counseling site is also where defenders become exposed to client’s lived experiences, encounter collectivist tactics, and critically examine the tension of their role in the system. Likewise, through counseling defenders can pull back the veil of the legal system and demystify it to allow clients and movements to address the system’s inner workings.This paper focuses on how counseling reinforces oppression, but also on what can happen when defenders and clients hold out this tension, examine it, and bring it into the counseling relationship. This more robust counseling already naturally occurs, and should be expanded in a principled and intentional manner. When defenders and clients embrace the contradictions at the heart of counsel and lay it bare, they can help transform the counseling site into a location where epistemes interact. Defenders and clients can collaborate, pool their knowledge, and trace back their constraints to the mechanisms that replicate systems of oppression. They can then go forth from the counseling site together, or separately, or with other partners entirely to forums where varied tactics can disrupt those underlying mechanisms

Judicial Resistance to New York\u27s 2020 Criminal Legal Reforms

Scholars have examined judiciaries as organizations with their own culture and considered how this organizational culture can form a significant impediment to the implementation of reforms.22 There is a strong connection between judicial culture and a reform’s ability to accomplish its stated goals. Some go so far as to state that most reforms will fail because of the difficulty in altering judicial culture.23 These studies sometimes focus on legislators misunderstanding the actual effects of legislation when it was drafted, or on the failure to account for particularities in a law’s implementation by undervaluing the fragmentation, adversarial nature, and lack of resources of trial courts.24 Scholars have focused on overlooked consequences or unexpected effects that the drafters failed to properly account for.25 But as discussed by Malcolm Feeley, reforms also fail due to the judiciary’s intentional mis-implementation of the legislation. In such instances, reforms fail not because those who planned the reform or those who wrote the law did not account for certain unintended consequences, but because the judges who must give force to the reform do not agree with the intended consequences.26 This paper seeks to build on the scholarship of judicial organizational culture and examine a significant example of the phenomenon of judicial resistance in the context of New York’s 2020 criminal legal reforms. These reforms implicate the legislature’s curtailment of judicial discretion to accomplish the reform’s goals. This provides a unique opportunity to identify intentional judicial obstruction, and how and why it is carried out. Placing the judicial response within the scholarship would be illuminating in reexamining Feeley’s and others’ theses and in expanding the premises to current real-world reforms. This examination reveals how the New York judiciary’s organizational culture makes it particularly susceptible to narratives concerning public safety, which forms a significant motivation for judicial obstruction to reforms. Part I creates a framework to define whether these judicial interpretations are obstructionist and to provide some background on both the nature of obstruction and its possible causes. Part II examines specific examples of when judges circumvented the reforms and looks to New York’s judicial culture to see if it can account for how and why this obstruction occurred. Part III examines whether any larger lessons or solutions can be learned for future criminal legal reforms to anticipate such impediments and preemptively address them

Judicial Resistance to New York\u27s 2020 Criminal Legal Reforms

Scholars have examined judiciaries as organizations with their own culture and considered how this organizational culture can form a significant impediment to the implementation of reforms.22 There is a strong connection between judicial culture and a reform’s ability to accomplish its stated goals. Some go so far as to state that most reforms will fail because of the difficulty in altering judicial culture.23 These studies sometimes focus on legislators misunderstanding the actual effects of legislation when it was drafted, or on the failure to account for particularities in a law’s implementation by undervaluing the fragmentation, adversarial nature, and lack of resources of trial courts.24 Scholars have focused on overlooked consequences or unexpected effects that the drafters failed to properly account for.25 But as discussed by Malcolm Feeley, reforms also fail due to the judiciary’s intentional mis-implementation of the legislation. In such instances, reforms fail not because those who planned the reform or those who wrote the law did not account for certain unintended consequences, but because the judges who must give force to the reform do not agree with the intended consequences.26 This paper seeks to build on the scholarship of judicial organizational culture and examine a significant example of the phenomenon of judicial resistance in the context of New York’s 2020 criminal legal reforms. These reforms implicate the legislature’s curtailment of judicial discretion to accomplish the reform’s goals. This provides a unique opportunity to identify intentional judicial obstruction, and how and why it is carried out. Placing the judicial response within the scholarship would be illuminating in reexamining Feeley’s and others’ theses and in expanding the premises to current real-world reforms. This examination reveals how the New York judiciary’s organizational culture makes it particularly susceptible to narratives concerning public safety, which forms a significant motivation for judicial obstruction to reforms. Part I creates a framework to define whether these judicial interpretations are obstructionist and to provide some background on both the nature of obstruction and its possible causes. Part II examines specific examples of when judges circumvented the reforms and looks to New York’s judicial culture to see if it can account for how and why this obstruction occurred. Part III examines whether any larger lessons or solutions can be learned for future criminal legal reforms to anticipate such impediments and preemptively address them

Judicial Resistance to New York\u27s 2020 Criminal Legal Reforms

This Article seeks to examine judicial opposition to New York’s 2020 criminal justice reforms in the context of existing scholarship on judicial organizational culture to understand why judicial obstruction occurs and how it can be addressed. New York’s 2020 criminal legal reforms sought to reduce pretrial detention and to provide greater access to discovery for the defense by curtailing judicial discretion to set bail and judicial power to excuse prosecutorial discovery delays. But judges opposed the law both surreptitiously and openly through defiant opinions, administrative adjustments, and routine court actions that undercut the reforms’ intended effects. Scholars such as Malcolm Feeley, Brian Ostrom, and Roger Hanson have written about how the informal organizational culture of a court system can be an impediment to reforms. Their analysis applies to New York’s 2020 reforms and provides insight into why this specific resistance occurred and how it can be addressed. The judiciary was included in planning and discussing the 2020 reforms and the reforms sought to remove judicial discretion in the matters of bail and discovery. Yet when it came time to implement the change, judges used other powers to avoid releasing individuals and to avoid sanctioning prosecutors. This is at least partially due to New York’s judicial appointment scheme which makes the judiciary sensitive to structural narratives concerning public safety and court leniency. Although these reforms were democratic and popular, judges were not sufficiently incentivized to properly implement the changes. If reforms are to succeed, the popular and political will to pass the reforms must extend beyond the passage of the law and must also create mechanisms to scrutinize, guide, and support the judiciary’s implementation of the law