Jonathan Lippman, one of the authors (photo: John McCarten/NYC Council)
The New York State Legislature recently passed a landmark suite of criminal justice reforms that will profoundly re-shape the justice system in New York. Among other things, the reforms should help recalibrate the balance of power between prosecutors and defense attorneys and accelerate the effort to close the notorious jail complex on Rikers Island.
A recent analysis found that by reducing the use of bail, the legislative reforms would result in the release of more than 40% of the defendants held in pretrial detention in New York City.
Legislative changes like these almost always generate significant public attention -- newspaper headlines, social media traffic, and the like. But if we hope to create a justice system that truly serves as an international model of fairness and effectiveness, we cannot rely solely, or even primarily, on legislation.
The kind of cultural change that is required in New York cannot simply be imposed from on high by political actors; it must be embraced by frontline practitioners – judges, attorneys, police officers, and others. These officials must be given the tools they need to both maintain public safety and ensure that every defendant and every victim is treated with dignity and respect.
This means making long-term investments in training and education – for example, teaching justice officials about the long-lasting effects of trauma among the justice-involved population. It means reshaping the physical plant of the justice system so that our police precincts and courthouses and jails are designed to welcome rather than intimidate users. And it means focusing in the trenches on boring and technical issues like the speed with which cases are processed by the justice system.
Take felony cases. New York’s court system has long expected felonies to be resolved within 180 days of an indictment. Yet, among indicted felonies resolved in 2018 in New York City, despite the herculean efforts of court administrators, cases averaged more than ten months to a resolution. Shortening this timeframe doesn't make sense just from an efficiency standpoint -- it should also help reduce the jail population in New York City, since many of these defendants are currently detained on Rikers Island while their cases are pending.
The new legislative reform should make a real difference -- most discovery becomes automatic and must be completed within 15 days of arraignment. Chief Judge Janet DiFiore has also made inroads in recent months, employing new technology, changing judicial assignments, and using her bully pulpit to make improved timeliness the top judicial priority.
And, yet, there is still enormous potential for delay within the courts. What else can be done?
Judges and attorneys can take several practical steps to make the constitutional right to a speedy trial more of an everyday reality.
For one, the parties can shrink the number of days in between each court appearance. In 2016, the Office of Court Administration endorsed a 30-day cap. As adjournment length declines, there will be less idle time waiting for the next court date.
Second, once discovery is complete, judges can make it a routine practice to convene attorneys in a case conference outside the courtroom. A conference is an opportunity to have an honest discussion about the strengths and weaknesses in each side’s case and, potentially, to reach a good faith plea agreement sooner rather than later in case proceedings.
Third, judges and attorneys can agree to formal guidelines up front that state exactly what each party is responsible for accomplishing in between each court appearance -- in lieu of constantly reassessing progress at each successive court date.
Earlier this year, the Brooklyn Supreme Court, with the cooperation of the Brooklyn District Attorney and the local defense bar, launched an experiment that seeks to move in these directions. With support from the Art for Justice Fund and the Center for Court Innovation, the parties agreed to use a case processing roadmap that clearly defines what should happen from one court appearance to the next in indicted felony cases.
The Brooklyn pilot is an attempt to implement case processing reforms recommended by both the Mayor’s Office of Criminal Justice and the Independent Commission on New York City Criminal Justice and Incarceration Reform. If successful, it can potentially serve as a model for the rest of the city.
To close the Rikers Island jails and create a better justice system is a complicated endeavor that will require sustained effort over the course of many years. Policy, at both the city and state level, has an important role to play. But so does practice.
There aren’t going to be any ticker-tape parades when felony cases are resolved four months quicker, but it is precisely these kinds of changes that are the critical next frontier in the fight for criminal justice reform in New York.
Jonathan Lippman is a former chief judge of New York State, of counsel at Latham & Watkins LLP, and chair of the Independent Commission on New York City Criminal Justice and Incarceration Reform. Greg Berman is Director of Center for Court Innovation.