Gotham Gazette Sat, 28 Nov 2020 14:59:38 +0000 Joomla! - Open Source Content Management en-gb (Webmaster) Concerns Over Budget Cuts to State Court System Amid Massive Case Backlog 2 leg exa

Gov. Cuomo and Chief Judge Difiore (photo: governor's office)

Members of the New York State Assembly’s Judiciary Committee held a virtual hearing on Thursday to examine the impacts of a proposed $300 million cut to the state judiciary’s budget. The reduction, which represents a 10% cut to the court system’s $3 billion budget for the current fiscal year, was announced by the Office of Court Administration (OAC) in September in response to Governor Andrew Cuomo’s directive that all state entities reduce their budgets by 10% to mitigate the budgetary effects of economic downturn caused by the COVID-19 pandemic. The governor has held off on finalizing more sweeping budget cuts while lobbying for a major aid package from Washington, hopes that were buoyed by Joe Biden’s victory in the presidential election.

Witnesses at the hearing, which was led by Committee Char Jeffrey Dinowitz, a Bronx Democrat, warned that the proposed budget reduction could have far-reaching effects on the state’s court system, from exacerbating case backlogs to accelerating staffing shortages. Testimony was focused in particular on the decision by the OCA‘s administrative board not to approve 46 of the 49 older judges who applied for recertification for the upcoming calendar year. Judges who wish to serve on the bench beyond the state’s mandatory retirement age of 70 must apply to the OCA for recertification every two years until they reach 76. Judges who are not granted recertification must vacate their positions by December 31, which is three-quarters of the way through the current fiscal year.

Michael Regan, Chair of the New York City Bar Association’s Council on Judicial Administration, said the impending loss of the 46 judges will further hinder the courts’ ability to process the case backlog created by the pandemic. As of August, the state courts were facing a backlog of nearly 200,000 pre-pandemic cases.

“The loss of these 46 senior and experienced judges will have an immediate and significant impact on our court system,” said Regan. “As proceedings have already been delayed by the pandemic, caseloads and backlogs are rising, there is an increasing demand for access to the courts, and there is a need for an adequate number of experienced judges to handle the growing inventory of old and new cases.”

Representatives of the OCA declined to participate in the hearing, citing ongoing litigation over its decision not to recertify judges.

On November 5, five of the judges who were denied recertification filed a lawsuit against the OCA in Suffolk County State Supreme Court, alleging that the OCA’s “arbitrary and capricious” decision violated New York’s prohibition on age-based discrimination.

Assemblymember Dinowitz and other members of the committee expressed their frustration with the OCA’s absence.

“I am disappointed that OCA has chosen not to participate this morning in the hearting,” said Dinowitz in his opening remarks before the committee. “Time is of the essence on some of the issues, certainly concerning the termination of 46 judges, and waiting several weeks might make the issue moot. And as they say, justice delayed is justice denied.”

New York is currently facing a budget deficit of roughly $14.5 billion for the current fiscal year, with the state’s budget office expecting the deficit to expand to nearly $62 billion between now and 2024. If approved by Governor Cuomo, the proposed reduction would be the largest to the judiciary’s budget since the 2011-2012 fiscal year, when the judiciary lost $170 million from its budget amid a different state budget crisis.

In a letter announcing the planned cuts, Judge Marks said that the OCA’s decision not to recertify the 46 judges would trim $55 million from the judiciary’s expenditures. The court system has also implemented a hiring freeze, eliminated all “non-personal service” spending, and deferred all substantial payments in an effort to limit spending.

Critics of the OCA’s decision charged that the board’s choice not to recertify the judges was premature, given that the proposed budget reductions have not been finalized by the governor and that the state is still waiting to learn if it will receive fiscal aid from the U.S. Congress through a proposed federal stimulus package.

Witnesses also said that the OCA’s decision came at a particularly inopportune moment, as state courts struggle to navigate the legal and logistical difficulties created by the coronavirus pandemic.

“Reducing the number of judges on the bench and their staff should be [the administration’s] last resort when considering budget cuts,” said Hon. Charles C. Merrell, the president of Association of Justices of the Supreme Court of the State of New York. “The courts are overburdened especially with imposed delays and suspensions imposed by the pandemic. When [these restrictions] are lifted, the influx of cases is expected to be staggering. This is not a good time to slash the judiciary by 10%.”

Jesus Zeno, a representative of the Puerto Rican Bar Association, said that loss of the 46 judges, 17% of whom were people of color, also risks exacerbating racial and other demographic disparities on the bench. A study released in October by the Special Advisor on Equal Justice in the New York State Courts found that 58.1% of New York City judges are white, while only 31.7% of the city’s population identifies as white.

“Collectively, the loss of these seven to eight judges of color will diminish the strides that have been made to diversify the judicial positions in the New York State court system,” Zeno said. “As a result, the ripple effects of their loss will remain with us for many years to come.”

Zeno also warned that the budget reductions could create new difficulties for litigants and defendants, including delayed court dates, longer processing periods, and diminished access to state-sponsored legal services. According to Zeno, these difficulties would disproportionately affect low-income communities and people of color who have already been hit hardest by the pandemic. 

“It’s going to be devastating to the minority community and to those people who do not have the means for adequate representation,” said Zeno. “Those cases may take longer because many of the individuals who appear in family court are pro se, and many of the defendants in tenant court are pro se, so those pro se litigants who do not have the skills or the means to defend a case, they’re going to put on the back burner.” 

The budget reduction would also put a burden on the court system’s approximately 15,000 non-judicial employees, including court reporters, court officers, and judicial clerks, many of whom fear layoffs, pay reductions, or further staffing decreases.

“The reason the judicial system has not been crushed during the pandemic is because we, the court employees, are there,” said Eric Allen, President of the Association of Supreme Court Reporters Within the City of New York. “If layoffs were to occur, and employees are not there, Lady Justice would not only be blind, she would be rendered paralyzed."

by Ian Ward for Gotham Gazette

Note: this article has been corrected to accurately note the demographics for New York City judges dound in the October report.

Concerns Over Budget Cuts to State Court System Amid Massive Case Backlog Thu, 12 Nov 2020 05:00:00 +0000
Little Support for De Blasio's Claim that Court Shutdown is Driving Gun Violence Surge media avail photo

De Blasio and Shea discuss public safety (photo: Ed Reed/Mayor's Office)

Mayor Bill de Blasio and Police Commissioner Dermot Shea are marooned on an island with few substantive details to sustain their claim that one of the biggest drivers of New York City's recent increase in gun violence is a pandemic-stalled court system.

The two have repeatedly offered largely unsupported claims that the coronavirus-related suspension of grand juries and a slow-down in gun offense prosecutions has made the courts a major contributor to the surge in shootings throughout the city over the last several months. But representatives from the state courts, district attorney offices, and public defender services have all refuted the administration's claims, while available data paints a somewhat murky picture.

On Monday, the mayor published an open letter to New York Chief Judge Janet Di Fiore and the city’s five district attorneys in which he urged them to work with the city to "do much more," and said he would be reaching out to arrange a meeting with all parties.

Convening grand juries again, which had been halted to prevent the spread of COVID-19, "is important progress, but we will have to do much more in order to reduce the backlog of cases that have, for the most part, been held in abeyance for several months — delaying justice for victims and accountability for perpetrators," de Blasio wrote.

From June 22 to July 19, there were 328 shootings incidents in New York City, more than three times the number in the same period last year, according to CompStat, the NYPD's crime tracker. Over roughly the same 28-day period, even with so many more shootings, gun arrests have dropped by about two-thirds from 2019. The mayor has blamed the uptick on "massive societal disruption" triggered by the coronavirus pandemic and its fallout, regularly pointing to a court system that “is not functioning” and emphasizing the lack of grand juries and gun prosecutions. But he has been vague on specifics and has dodged questions about the falling arrest rate.

"It's a pretty few places where we're seeing the uptick, a relatively few people causing the violent crime. We're going after them," de Blasio said on CNN Thursday after questions about the increased shootings and decreased arrests. "We need them prosecuted again. That's the big missing link here because we can't get them off the street if there's not prosecution and the court system functioning."

"We know we don't necessarily need more gun arrests, we need the people that are caught to be prosecuted fully, and then we need the court systems open to get them off the street as quickly as possible," Shea said, seated next to de Blasio at a press briefing on July 17, where they announced an anti-gun violence campaign focused on increasing patrols in high-shooting areas, organizing gun buy-backs, and better deploying the Community Affairs Bureau.

Until recently, de Blasio has largely credited growing joblessness and the upheaval of daily life for the recent violence, while also repeatedly mentioning the courts. Shea has gone further by explicitly blaming recent bail reforms and COVID-related jail releases, which have been backed by the mayor for the most part. The state of the court system is their major area of agreement in explaining the recent gun violence, even as they continue to publicly butt heads on new police reforms backed by the mayor.

Lauding the police department's "precision policing," which focuses on rooting out a smaller number of individuals who officials say are responsible for most violent crime, de Blasio and Shea have blamed the courts and the prosecutors.

"When those courts are opened up, we have a line of cases ready to get the most violent people off the streets. We need the court's help," Shea said at the July 17 press conference.

In an open letter to Chief Judge Janet Di Fiore and the five district attorneys released Monday, de Blasio said 2,000 people had been charged with firearm offenses in New York City, but only about half had been indicted by a grand jury -- a point he and Shea have made before.

Yet the Office of Court Administration, a state entity, insists that the courts have remained open virtually, and district attorneys and public defenders say arraignments have continued by video conference.

Governor Andrew Cuomo has suspended some elements of the Criminal Procedure Law, including the convening of grand juries, as part of the state's emergency response to the virus. But public defenders say no grand juries only means people accused of violent felonies have fewer avenues to be released from jail while they await the administration of justice.

"The idea that a lack of grand juries is somehow increasing shootings is utterly absurd," said Alice Fontier, managing director for Neighborhood Defender Service of Harlem, in an interview. "To the extent that the court is not functioning to its full capacity, the result is more people being held in jail than previously would have been."

Grand juries are a constitutional protection that give defendants a chance to have their case thrown out before trial if prosecutors can't show probable cause. In the pandemic, that ability was suspended and only later replaced with a judge's discretion in preliminary hearings where minimal evidence is presented, according to Fontier and other defense attorneys Gotham Gazette interviewed.

Before the pandemic, when a person was arrested for an alleged violent felony, they would be arraigned -- meaning they are formally charged -- and a grand jury would review evidence to decide whether the case would proceed toward trial or be dropped. If the decision was made to indict, the defendant would remain in jail unless bail was set and paid. If the decision was made not to indict, the case was closed and the accused would go free.

During the state of emergency, arraignments have continued and judges still set bail. But with grand juries suspended, the opportunity to get out of jail before trial without taking a plea deal or paying bail has disappeared, multiple public defenders said.

In the past, if a grand jury wasn't convened within five days of an arrest -- which was not uncommon if prosecutors couldn't line-up witnesses or evidence in time -- the defendant would be released under a state statute known as Section 180.80 while their case proceeded. That provision was also suspended by Cuomo's executive order, leaving individuals to take a plea deal, pay bail (if bail is set), or sit in jail, according to the defense attorneys.

"In fact the right to get out based on whether or not a grand jury has indicted you is also suspended as long as they have what's called a preliminary hearing," said Lisa Schreibersdorf, executive director of Brooklyn Defender Services. At preliminary hearings, which are being conducted virtually, a judge decides whether there is probable cause to proceed to trial, she said.

"Right now just based on the prosecutor’s charge and the judge saying that feels like a bail case, people are held on bail," Fontier said. 

"And there is no grand jury review, so it's all prosecutors and judges who are deciding who is in jail and who is not," she added.

Since the mid-March state of emergency, the New York City Criminal Court has held nearly 19,000 arraignments and over 600 felony preliminary hearings, according to the Office of Court Administration. Virtually all gun possession and use cases are felonies, according to prosecutors and court representatives.

"Although we share your goals of a safer and stronger city, your plea for a 'functioning and open' court system wholly ignores the reality that the courts have not only always remained open, but have excelled and adapted in ways that were unimaginable only a few months ago," wrote New York Chief Judge Janet Di Fiore in a letter to de Blasio on July 16 (the letter was first reported by The New York Post).

But a day later, at the July 17 press briefing with Shea, the mayor repeated his claims, even raising his voice to a reporter as he was asked again to prove his assertions: "With great respect to my colleagues in the media, I'm going to challenge you to actually report what I said. Listen, the court system is not functioning! You can't have the ability to get people off the streets if the court system's not functioning!"

"There's nowhere near the level of court activity that we had as recently as February, before the coronavirus," the mayor said on WNYC radio a week later, this past Friday, July 24.

"The Mayor’s narrative regarding the operation of the State Court System throughout the pandemic is at best totally factually incorrect and at worst an attempt to shift the blame for an increase in street violence," wrote Lucian Chalfen, the courts' director of public information, in an email to Gotham Gazette.

"Despite what some people would say, they should walk into 161st Street or walk into Jay Street," Shea said at a July 16 CompStat meeting with police brass, referring to the locations of state courthouses and ignoring the proceedings that have continued digitally. "Don't tell me that the courts are open. The courts have been shut down for months."

In some cases, like with long-term investigations, prosecutors obtain an indictment through a grand jury before an arrest is made. In the open letter to Di Fiore and the district attorneys Monday, de Blasio indicated this may be hampering the police department's ability to go after the gang activity underwriting the increase in shootings: "Because grand juries have not been sitting, we also cannot present the major cases used to take out the most violent street gangs," he wrote. Nothing prevents the NYPD from arresting someone they suspect of being involved in a shooting, however.

Prosecutors have largely denied any reduction in the vigor with which they pursue gun charges.

“It is wrong to say that the District Attorneys are not prosecuting or that the court system is not functioning,” wrote Bronx District Attorney Darcel Clark, in an email to Gotham Gazette. “It is certainly wrong to suggest that the recent uptick in shootings has been caused by the changes in court process that have resulted from the pandemic. It is true that grand juries and trials are on hold. But for months the Bronx DAs office has prosecuted and continues to prosecute cases especially violent offenses. There was no 'slow down.'"

"When an arrest is made, we draft the appropriate complaint and file it with the court," Clark wrote. "Every defendant who has been arrested and charged with a crime has been arraigned."

Similar word came from Manhattan. "Our office aggressively prosecutes violent crime and we have not observed a correlation between the uptick in gun violence and court operations," said Danny Frost, a spokesperson for Manhattan District Attorney Cyrus Vance. "Thanks to the hard work of our prosecutors, professional staff, and court system colleagues, our arraignments never stopped and our preliminary hearings have enabled us to meet our statutory obligations in the absence of a sitting grand jury."

Oren Yaniv, a spokesperson for Brooklyn District Attorney Eric Gonzalez, told Gotham Gazette that all prosecutions in the borough had slowed during the height of the pandemic and have only recently begun to pick back up. But he said that hasn't impacted the number of arraignments or people released from jail while they await trial.

"Everything is getting arraigned and those accused of violent felonies can and are being held on bail or remand," he said in an email. "So, no, it doesn’t affect the number of defendants who are at large (leaving aside COVID considerations that are sometimes applied by judges when deciding on bail)."

There is some data to back up de Blasio’s and Shea's claims that defendants in weapons cases are being released at higher rates than in the past, although other data suggests these aren't the main contributors of recent gun violence.

In Manhattan this year, through June 15, there have been 319 arraignments for criminal possession of a weapon, only ten fewer than in the same stretch in 2019, according to Frost. But where 250 of those cases in 2019 resulted in detention, 177 did in 2020, a rate of 55 percent, down from 76% in 2019.

That may be due to a number of reasons, like the city's effort to reduce the jail population in response to the coronavirus, and the discretion given to judges at preliminary hearings, including to set bail.

According to a spokesperson for the Mayor's Office of Criminal Justice (MOCJ), 4,500 people had been released from jails between March 16 and July 5, a third of whom were released due to COVID-19 concerns. Of the COVID-related releases, 193 were re-arrested -- seven of those on gun charges.

The mayor has stood by the move to cut the city jail population, which is now below 4,000, during the pandemic. That figure came after years of reducing the jail census from 11,000 detainees when de Blasio took office in 2014 to roughly 5,400 at the start of the state of emergency in March.

"I am convinced it was the right thing to do because we were thinking about the health and safety of everyone involved and looking to save lives," de Blasio told reports in May in defense of the covid-inspired push to reduce the city jail population. "And, again, when this crisis is over, anyone who is awaiting trial who needs to be reincarcerated will be. So, this was the right approach."

MOCJ did not respond to requests for data on the total number of people with gun charges released from jail. A spokesperson for the New York City Department of Correction referred Gotham Gazette to MOCJ, which they said had received the inquiry.

A Gotham Gazette analysis of weapons arrest data provided by the Office of Court Administration revealed defendants in 48 percent of gun cases between March 16 and June 21 were released on their own recognizance or under supervision, compared with 25 percent during the same period last year. (Gun cases include criminal possession of a weapon and robbery with a weapon.)

In the three-month period between January 1 and March 15, 2020, after new state bail laws passed last year had gone into effect, defendants in 42 percent of weapons cases were released, close to the release rate during the pandemic. (Lawmakers have again increased the number of offenses that are bail eligible, which went into effect on July 1.)

But a New York Post analysis of police data showed only one person released under the 2019 bail reforms has since been charged with a shooting, amid the 528 shootings in the first six months of 2020.

The Office of Court Administration and public defenders have criticized the de Blasio administration's push to reopen in-person courtrooms to criminal proceedings, saying it will put people at risk of contracting and spreading coronavirus. Doing so could disproportionately expose Black and Latino communities, which have already borne a higher toll in the pandemic, defense attorneys say.

Grand juries will be convened again beginning on August 10.

"We have been working to reestablish full court operations, including jury trials," Chalfen, of the Office of Court Administration, wrote in a statement Monday. "While New York City still does not allow indoor dining, the Mayor blithely asks us to call in thousands of people a week Citywide for jury duty. Clearly he has absolutely no understanding of how the criminal justice process works."

Many people familiar with court procedures are alarmed by the push to reopen courtrooms for in-person proceedings.

"Now we have a situation where clients and attorneys are being forced to go to court in unsafe conditions," a caller, who identified themselves as “Lauren” and a public defender in Brooklyn, told de Blasio in an appearance on WNYC radio Friday. "The ventilation systems in the courts are very old." 

"I'm in a high-risk category," Lauren said. "I have plenty of clients who are high risk."

"If there's ways to use remote activity that works, great, but it's not an option to not have a court system because it is one of the things contributing to our – the challenges we're facing as we're trying to address violence," de Blasio responded.

"I have been talking to DAs, I've been talking to police officials and I believe them that there is nowhere near the level of activity that happened," he said. "I mean, it was just a pure factual statement."

While court activity has been reduced, the mayor’s claims it is connected to an increase in gun violence remains refuted by those working in the court system.

"There is no connection to what is happening in the street whatsoever,” said Fontier, the public defender in Harlem, “and I struggle to think how he could possibly make one if he actually tried.”

by Ethan Geringer-Sameth, reporter, Gotham Gazette

Read more by this writer.

Little Support for De Blasio's Claim that Court Shutdown is Driving Gun Violence Surge Mon, 27 Jul 2020 04:00:00 +0000
As Courts Reopen, Threat of ICE Returns: State Lawmakers Must Protect Our Neighbors cm dr holds

As courts in NY reopen, the role of ICE will be top of mind for many (photo: John McCarten/City Council)

Courthouses in 30 upstate New York counties have begun the gradual process of restarting the state’s legal system. The pandemic has highlighted the urgent need for due process and just how critical access to justice is for New York’s most vulnerable communities. There remain, however, significant barriers for many who desperately need their day in court.

For years, ICE has preyed on non-citizens in and around our courthouses, using fear and intimidation to limit access to justice for our communities. The Protect Our Courts Act would help ensure that all New Yorkers feel safe to access the courts by preventing ICE agents from detaining people in or around courthouses unless they have a signed judicial warrant.

Lawmakers in Albany must make the Protect Our Courts Act a priority if we are going to make the promise of equal justice under the law a reality in this time of crisis. Without this vital protection, we are likely to see a surge in ICE arrests that will effectively shut many of the most vulnerable New Yorkers out of the courts and heighten the risk of contagion for those detained. The Immigrant Defense Project (IDP) tracks ICE raids throughout the state, and in the first 11 weeks of 2020, raids in New York City increased 400% compared with the same period last year. When these arrests ramp up again, and they will, the same communities hardest hit by COVID-19 will have to endure another wave of attacks, mourning, and lives disappeared.

ICE has already used the courthouse to trap immigrants during the current crisis. On March 13, as President Trump declared a National Emergency, Mr. RC, a client of The Bronx Defenders, appeared in state court in Poughkeepsie. Despite the mounting pandemic and the deployment of state and federal resources to try to contain the virus and protect public health, six ICE officers entered the courthouse, defying Office of Court Administration rules promulgated last year, waited for Mr. RC outside the courtroom doors, and arrested him as he left his court appearance. None of the officers wore gloves, masks, or any other protective gear. ICE then detained Mr. RC at the Orange County Jail, increasing the likelihood of exposure and separating him from his fiancee and one-year-old as the worst period of the pandemic was just beginning.

Mr. RC’s experience is not an aberration. The Bronx Defenders has represented hundreds of individuals arrested under circumstances that demonstrate ICE’s disregard for the health, safety, and, indeed, the humanity of immigrants in New York. The tremendous health risks posed by detention centers have been well-documented. Detained immigrants have been holding hunger strikesprotesting, and filing lawsuits calling on ICE to end unnecessary and harmful detention. The last place anyone should be in the midst of this pandemic is a cage. At this critical moment, New York should embrace legislation that would limit ICE’s ability to pull more New Yorkers into its dragnet.

It is hard to imagine a worse time to punish and endanger immigrant New Yorkers. Every ICE arrest, detention, and deportation takes someone away from communities that have been pushed past the breaking point. The death rate for black and Latino people in New York City has been twice the rate for white people, and essential workers most at risk are disproportionately likely to be women, immigrants, black, and Latino. As people vanish from the neighborhood, loved ones are left turning over survival and grief in their hands as refrigerated trucks full of the deceased sit in parking lots nearby. 

The Protect our Courts Act already has majority support in both chambers of the New York State Legislature. Now more than ever we cannot let ICE stand in the way of full access to public services, rights, and remedies, including those available at the courts, such as orders of protection, fighting evictions, seeking child support, and defending oneself against criminal charges. When ICE’s intentions to use our courts as a lure to detain immigrants at the outset of a pandemic are so clear, we must not wait to see how ICE will strike next before we act. 

Mizue Aizeki is the deputy director of the Immigrant Defense Project. Rosa Cohen-Cruz is the Policy Counsel to the Immigration Practice of the Bronx Defenders. On Twitter @ImmDefense & @BronxDefenders.

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As Courts Reopen, Threat of ICE Returns: State Lawmakers Must Protect Our Neighbors Tue, 02 Jun 2020 04:00:00 +0000
Key Constitutional Obstacles to Efficient Reopening of New York Courts gov deliever chief

Important challenges when New York courts reopen (photo: governor's office)

This guest column is part of Citizens Union Speakers, a regular series of op-eds written by members of the Citizens Union Foundation community in Gotham Gazette, CUF's flagship public education program. The opinions expressed in these Citizens Union Speakers columns are those of the authors alone, not Citizens Union Foundation, Gotham Gazette, or any other entity.

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When New York’s courts fully reopen they will face an overwhelming volume – delayed matters of all types, particularly trials; a vast number of new matters that were waiting to be initiated until the courts reopened; and cases stemming from the virus fallout including scores of breach of contract and related claims. Of particular concern is an estimated backlog of up to 80,000 family court suits. 

Adding to these problems may be a decrease in court staff resulting from state-mandated budget cuts. These problems will be substantially aggravated by the fact that Court officials will be powerless to correct one of the largest barriers to an efficient reopening of the courts: the limits imposed by the New York Constitution, an obstacle only a constitutional amendment can correct.

Under a system dating back to the mid-19th century, New York today has 11 different trial courts; more than any other state in the nation. This system prevents the assignment of judges to decide cases where they are most needed — a problem during normal times all the more apparent in the post-pandemic planning.

The Constitution provides that Family Court Judges decide only juvenile, domestic, child support and custody disputes. New York City Civil Court judges decide only civil cases involving less than $25,000. Criminal Court judges decide only misdemeanor cases. Court of Claims judges hear only suits against the State, and Surrogate Court judges hear only estate disputes. The State Supreme Court decides felony, tort, commercial, discrimination, and divorce cases. With the exception of divorce proceedings, County Court judges decide similar disputes.

Family, Criminal, and Civil Court judges cannot decide any of the kinds of cases Supreme and County Courts can decide (family and civil court judges can issue orders of protection). Conversely, and of particular import, Supreme Court judges rarely hear family court disputes and Court of Claims and Surrogate Court judges never do.

These constitutional restrictions will severely limit court administrators in assigning judges to sit where they will be most needed when the courts reopen. For example, while it can be anticipated that the already overburdened family courts, which will need substantially more judges to handle the backlog of family court cases and an increase of up to 30% of domestic violence disputes that arose during the pandemic, court officials in most instances will be unable to assign those cases to Surrogate, Court of Claims, or Supreme Court judges.

Long before the present health crisis these constitutional provisions have been shown to create enormous unnecessary delay to litigants and prevent the assignment of judicial and non-judicial personnel to where they are most needed. The resulting societal costs have been estimated to amount to approximately $500 million annually. Those costs, and the impact on those seeking judicial relief, will be dramatically increased as the courts reopen.

Thus, even if court officials want to assign judges from other courts to decide the thousands of delayed family disputes, and even if, in order to do so, decisions in commercial, estate, or tort litigations may be delayed, court administrators will find it extremely difficult – if not impossible – to assign a Supreme, Surrogate, Court of Claims, or County Court judge to decide what have been designated as higher priority cases. Under the Constitution these judges may lack the authority to resolve such matters.  

Instead, court officials may decide to make judges from the Criminal or Civil Courts “acting” Family Court judges where they will then have jurisdiction to decide Family Court cases. Not only will many of those judges lack the training to decide such matters, but to become “acting” Family Court judges will mean those judges will leave behind  their pending docket of Civil or Criminal Court cases, imposing a further burden on the other judges left on those courts. And to compound this problem the Constitution imposes strict limits on the conditions that must be met before the Legislature may increase the number of  Supreme Court judges even when there is a demonstrated need for such judges in a particular jurisdiction.

These facts highlight the need for adoption of the constitutional amendment proposed by Chief Judge Janet DiFiore in the fall of 2019. Her proposal, and the numerous other similar proposed court-simplification amendments put forth over the last 50 years, would eliminate the problems discussed above by consolidating the present 11 different trial courts into three.

Family, County, Court of Claims, and Surrogate Court judges would all become Supreme Court judges with jurisdiction to decide major disputes of all types. Criminal, Civil, and District Court judges would become Municipal Court judges to decide smaller cases, and Town and Village Court judges would continue to decide minor cases in upstate rural areas. These changes would allow court administrators to assign judges where they are most needed. And the limits on creating more Supreme Court judgeships would be eliminated.

Unfortunately, the-long overdue constitutional amendment proposed by the Chief Judge cannot be adopted until the end of 2021 at the earliest, so the changes such amendments would put in place won’t be available to deal with the reopening of the courts this year. But the inefficiencies identified above highlight the compelling need for these constitutional changes to be enacted.

Michael A. Cardozo is a partner at Proskauer Rose LLP and a member of the Board of Citizens Union. He served as Corporation Counsel under Mayor Bloomberg from 2002-2013.

Have an op-ed idea or submission for Gotham Gazette? Email

This guest column is part of Citizens Union Speakers, a regular series of op-eds written by members of the Citizens Union Foundation community in Gotham Gazette, CUF's flagship public education program. The opinions expressed in these Citizens Union Speakers columns are those of the authors alone, not Citizens Union Foundation, Gotham Gazette, or any other entity.

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Note: Gotham Gazette is an independent publication of Citizens Union Foundation, sister organization of Citizens Union. ]]>
Key Constitutional Obstacles to Efficient Reopening of New York Courts Tue, 19 May 2020 04:00:00 +0000
New York’s Asbestos Courts Need Transparency nycourts

(photo: @NYSCourtsNews)

New York’s asbestos litigation system is broken.

Currently, a procedural loophole in the state’s laws allows a few politically-connected law firms to game the courts and win themselves massive attorneys’ fees by manipulating the truth of their clients’ exposure to asbestos -- intentionally misleading courts and bankruptcy trusts by obscuring the truth.

When a victim of asbestos exposure decides to seek compensation, they can file claims in civil court against the companies they deem responsible, and also seek compensation from the trusts established to handle claims for asbestos manufacturers which have filed for bankruptcy. In theory, the system allows these claimants to be appropriately compensated by all the parties responsible for their exposure.

In practice, however, some lawyers will first file a civil complaint in which they claim a specific company or group of companies are solely responsible for their client’s exposure to asbestos. Once that civil case is concluded – a process that generally takes at least six months and can potentially go on for years – the lawyers often then file multiple bankruptcy trust claims, which present completely new and contradictory claims asserting that multiple bankrupt companies are responsible for their clients’ exposure.

This practice allows lawyers to punish companies in court by placing the full burden of victims’ exposure on a single manufacturer, when in reality, the lawyers know that many other companies were also responsible.

By changing the facts of their claims once the civil portion of the process ends, lawyers are defrauding the bankruptcy trusts and enriching themselves with additional legal fees. The practice obscures the full evidence of the case from the courts and defendants alike, and abuses a system established to fairly and justly offer recompense for victims of asbestos exposure.

No lawyer should be able to falsify the facts of a case simply to line their own pockets, and a legislative remedy to this problem is desperately needed.

Right now, a bill before the New York State Legislature offers a clear solution. Under the Truth, Fairness, and Transparency in Asbestos Litigation Act, all bankruptcy trust claims would be required to be filed within 45 days of the start of any civil action, taking away the opportunity for lawyers to make one claim in court and then present an entirely different story months or years later.

A dozen other states have already beaten New York across the finish line in battling this dishonest practice, including three in just the past year alone. Closing this loophole accelerates compensation for the victims of asbestos exposure, and prevents the fraudulent and blatantly inappropriate misuse of a system designed to help suffering victims and their families.

As quoted by the sponsors of the bill in New York, a federal judge called the use of this practice an “infection” within the legal system, which represents an intentional effort to suppress and obscure evidence during the legal proceedings. Efforts to pass the bill are supported by veterans, lawmakers, business groups, and more, including former judges and lawyers who witnessed these abuses firsthand.

Our legal system is intended to protect all New Yorkers, and to administer justice appropriately and in accordance with the facts of any given case. It’s time for our laws to change and force transparency and honesty into this system, and end this dishonest and indefensible practice.

Peggy Ableman is a former judge on the Superior Court of the State of Delaware, with 30 years of experience on the bench. During her tenure on the Superior Court, Judge Ableman presided over the state’s asbestos litigation docket, presiding over more than 500 cases.

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New York’s Asbestos Courts Need Transparency Mon, 05 Jun 2017 04:00:00 +0000
Enhancing Fairness, Improving Outcomes: The Real Story of Problem-Solving Justice in New York red hook community justice center

Red Hook Community Justice Center

Do problem-solving courts prevent New Yorkers from receiving their basic constitutional rights? Are defendants forced to make a Faustian bargain, pleading guilty to avoid incarceration when they should be challenging the legality of their arrest?

Steve Zeidman, a professor at CUNY School of Law, thinks so. In “The Treatment Court Cottage Industry & Its Unintended Consequence,” published Oct. 27 by Gotham Gazette, Zeidman argues that problem-solving courts create a “mindset of cooperation among all the institutional players” that prevent defendants from receiving their basic due process rights.

As an illustrative example, Zeidman tells a story (presented as an individual case but actually a composite) of a defendant named “CB” who is arrested for drug possession but wants to fight his case because he believes he was set up by an undercover police officer. Instead of receiving vigorous defense from his attorney, he is pressured to plead guilty in order to enter a drug treatment court. When CB decides instead to fight the legality of his arrest, he is left at Rikers Island, while his case proceeds. To Zeidman, this injustice is repeated again and again with problem-solving courts. “Countless defendants,” Zeidman writes, “stated that their lawyers simply urged them, forcefully, to plead guilty.”

Zeidman’s critique raises several important questions. Why have problem-solving courts proliferated in New York in recent years? What impact have they had? And do they in fact undermine the fairness of the criminal justice system?

The answer to the first question is simple: because they provide a better brand of justice.

Take drug courts, for example. These programs link addicted defendants to treatment in lieu of incarceration. Drug courts are among the most well-researched interventions in the history of American criminal justice reform. A national study underwritten by the U.S. Department of Justice found reduced drug use and crime among drug court participants when compared to defendants who went through regular case processing.

Nor are positive findings restricted to drug courts: researchers have also documented solid results from community courts, re-entry courts, mental health courts, and other alternative-to-incarceration programs. The human implications are enormous – thousands of New Yorkers given a second (and third and fourth) chance in life. Thanks to problem-solving courts, these individuals have been linked to potentially transformative interventions, including mental health counseling, employment training, and youth development programs.

As Vincent Schiraldi and Judith A. Greene noted recently, the number of New York City residents behind bars declined by 31,120 between 1996 and 2014, even as the city’s population increased by one million and crime rates continued to fall.

New York’s problem-solving courts played an important role in this remarkable success. New York’s drug courts demonstrated to policymakers that treatment instead of incarceration wasn't just notionally the right thing to do -- it actually makes a difference in the lives of defendants. That’s why the New York court system has made such a large institutional investment in these programs under the stewardship of the last three state chief judges. And that’s why Governor David Paterson, when announcing the reform of the Rockefeller Drug Laws, chose to do so at the Brooklyn Treatment Court. Closer to home, the Mayor’s Office has trumpeted the role that problem-solving programs have played in reducing the Rikers population.

In the aggregate, problem-solving courts have achieved demonstrably better outcomes for the clients that Zeidman purports to represent. But they have done more than just this. The research also suggests that they have actually improved the process as well, increasing defendant perceptions of fairness.

Many researchers are coming to the conclusion that the active ingredient in problem-solving courts, the element that makes them work better than conventional courts, is procedural justice.

Procedural justice is an idea, developed by Yale Law School professor Tom Tyler, that suggests that how defendants are treated is just as important, if not more, than the outcome of their cases. By treating defendants with dignity and respect – and communicating with them in plain language – courts can not only improve public perceptions of justice, they can promote voluntary compliance with the law.

This idea was tested most recently in Red Hook, Brooklyn, where my agency helped to develop the Red Hook Community Justice Center in partnership with the court system, the DA’s Office, and local defense attorneys. In Red Hook, we have altered the atmospherics of the criminal justice system in some fundamental ways: eliminating the bars in holding cells, shrinking the height of the judge’s bench so that he can look most defendants in the eyes, and improving signage so that court users understand how to navigate the building. The Red Hook judge, Alex Calabrese, also takes pains to ensure that defendants understand their obligations to the court and praises participants when they succeed in alternative programs.

Researchers from the National Center for State Courts conducted an independent evaluation of the Red Hook justice center, tracking participants in the program over the course of three years. It found that Red Hook reduced recidivism among both juvenile and adult defendants. It also found that Red Hook had improved perceptions of justice – defendants preferred Red Hook to the regular criminal court. This quote from a defendant was typical:

I went to Brooklyn Criminal Court before Red Hook, horrible place, horrible. They should do a tour there, just so people could see. I wouldn't wish that place on my enemy. Red Hook is 100 times better...[The Red Hook judge] allows you to speak...he likes to interact and get your opinion. I don't get the feeling that he's one of those judges that looks down on people. To me, he's fair, I'll put it that way. The court officers treat you like a person too, not like that other court over there. I learned that there's two different types of ways that courts treat people. You have these obnoxious goons and then you have those that look at you like, ‘ok, you made a mistake.’

Zeidman may be wrong on the merits, but he raises important warnings. Defense attorneys need to play an active role in the development and operation of problem-solving courts. And the structure of these courts should not exacerbate the coercive nature of the criminal justice system.

But make no mistake: if we want to continue to reduce the use of incarceration while preserving public safety, we don’t need to halt problem-solving courts – we need to spread the lessons from these programs as far and as wide as we possibly can.

Greg Berman is the director of the Center for Court Innovation. On Twitter @GregBerman50 and @courtinnovation.

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Enhancing Fairness, Improving Outcomes: The Real Story of Problem-Solving Justice in New York Thu, 03 Nov 2016 04:00:00 +0000