JUDICIAL RESISTANCE TO NEW YORK'S 2020 CRIMINAL LEGAL REFORMS.

• Author: Petrigh, Angelo

"[Bail reform] imperils the court's ability to properly and efficiently administer justice.... [B]y stripping judges of necessary discretion to control the appearance of a defendant, the legislature improperly interfered with the judiciary's capacity to fulfill its constitutional mandate." (1) "[T]his Court finds it difficult to conclude that legislators would be unconcerned with [the] 'disastrous consequences' wrought by [this] legislation." (2) "The [bail] law is stupid." (3) INTRODUCTION 111 I. CONTEXTUALIZING JUDICIAL OBSTRUCTION 114 A. Defining Judicial Resistance 114 B. Judicial Resistance Due to Reactionary Court Culture 116 C. Judicial Resistance Due to the Court System's Sensitivity to Political and Media Response 125 D. Judicial Culture's Focus on Retaining Judicial Power 131 II. EXAMPLES OF OPPOSITION 133 A. Setting Excessive Monetary Bail 133 B. Judges Failing to Follow Pretrial Release Assessment Recommendations 140 C. Incarcerating Individuals for a Re-arrest Without a Proper Hearing 144 D. Not Imposing Discovery Sanctions 147 E. Finding Exceptions to Not Charge Speedy Trial Time 152 F. Imposing Requirements That Prevent Meaningful Discovery Enforcement 155 III. PROPOSED ACTIONS 159 A. Expedited, Interlocutory Appeals 159 B. Tracking Judicial Compliance 162 C. Elimination of Judicial Discretion 162 D. Accounting for (and Scrutinizing) Judicial Culture 165 CONCLUSION 174 INTRODUCTION

In January 2020, a series of criminal legal reforms went into effect in New York state that drastically changed criminal procedure. The reforms' stated goals were to reduce the population in pretrial detention, improve defense access to discovery, and strengthen the accused's right to a speedy trial. (1) The reforms implemented a new bail scheme to address the issues with pretrial detention in New York. Previously, judges had the power to impose monetary bail in any case, with a loose set of factors to guide the decisionmaking.(2) The new system divided all criminal charges into two categories--charges which are eligible for monetary bail and those that are not--thereby removing judicial discretion to set bail in many cases. (3) It also created a more restrictive process for setting monetary bail on individuals who were at liberty and then were re-arrested or violated other conditions of release. (4)

The reforms also drastically changed New York's pre-trial discovery scheme. Critics had long pointed at New York's criminal discovery laws as outdated because prosecutors could provide most discovery materials on the eve of trial, or even after the commencement of trial, with few repercussions. (5) The new discovery scheme created a stricter timeline for prosecutors to provide discovery, created explicit sanctions for failing to do so, and, perhaps most importantly, tied the discovery obligations to New York's speedy trial statute as a means of enforcement. (6) The reforms included long-discussed changes to New York's criminal legal system and language that had been proposed by collaborative task forces and debated in iterations of other bills. (7) Years of scrutiny, studies, and popular anecdotal stories led to a critical mass of popular support for changing New York's antiquated discovery scheme and onerous bail laws. (8) The reforms had relatively little media attention paid to them as they were being negotiated and drafted. (9) Ultimately, these reforms were passed quickly and easily through the process of amending the Criminal Procedure Law (C.P.L.) through a budget bill. (10)

Around the time the reforms were slated to go into effect, numerous groups came out in opposition to the changes. Actors in the criminal legal system, including chief judges, some district attorneys, court administrators, and police unions, gave public responses opposing the reforms through the press and political avenues." Separately, judges dealing with the criminal cases also opposed the reforms through the ordinary process of interpreting and implementing the new statutes. (12) Judges in misdemeanor and felony courts who oversaw the cases directly affected by these reforms formed a major impediment to the implementation of the reforms. (13) Individually, judges interpreted the statutes in a variety of ways, as would be expected. But, in some instances, the interpretations of the reforms ran contrary to the intent of the legislature and the plain text of the statute. (14) Sometimes judges openly struck down the legislation as unconstitutional, and other times judges read statutes in a way that negated the effects of the reforms. (15) Administrative court leadership also implemented procedures to bypass the newly-imposed limitations on the judiciary. (16) The political process continued to play out in early 2020 resulting in a partial rollback in April of that year, but judges had already found ways to block the legislation's intended effect. (17) Although the April rollbacks left much of the new bail scheme intact, judges continued to resist the scheme with practices that circumvented aspects of the law. (18)

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. (19) 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. (20) 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. (21) Scholars have focused on overlooked consequences or unexpected effects that the drafters failed to properly account for. (22) 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. (23)

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.

1. CONTEXTUALIZING JUDICIAL OBSTRUCTION

   1. DEFINING JUDICIAL RESISTANCE

      In order to examine examples of judicial obstruction, it is necessary to set guidelines for what constitutes opposition to reform as compared to the normal process of interpreting any new statute that may have a constitutional defect or be unclear. Stated opinions or public statements opposed to the reforms can help demonstrate the intent of a particular judge. For example, the judges in Johnston and Erby were explicit that they disapproved of the reforms in their decisions bypassing them. (24) But, in the absence of such statements it is not as straightforward to categorize judicial action as obstructionist. No matter how clear a statute may seem, a judge wields incredible power to interpret it. In the absence of appellate court rulings, different judges can interpret the same statute with radically different outcomes. (25) This is especially true for new statutory language and other significant changes that come along with reform. (26) There are straightforward examples of when a judge states, while striking down a statute or refusing to enforce one, that they are doing so because of a disagreement with the statute. This intentionally open opposition can be an attempt to show dissatisfaction with a law to publicly encourage change. A common example is federal judges who either refuse to impose sentences within the mandatory minimums or impose a required sentence but voice their opposition to doing so. (27) But it is much harder to categorize a judge's decision as an act of resistance against the legislature when the judge is not making their intention clear.

      Scholars who examine how to categorize judicial actions in this way often use the term "judicial activism." (28) However, this is a problematic concept to discuss or define. Judicial activism is an ambiguous term that can be used to signal a decision that someone disagrees with, rather than a meaningful designation. (29) But, there are judicial actions that interfere with some readings of the judicial role in our system of checks and balances. Attempts to be clear and consistent in the definition of judicial activism have led some to focus not on the outcome of the judicial decision, but instead, on the effect that decision has on the...