Judges, both present and former, in Manhattan, Queens and the Bronx report in interviews that a wide swath of their colleagues handling criminal cases are adamantly opposed to Chief Judge Jonathan Lippman’s bail reform plan.
The judges say there is a widespread sentiment within the criminal bench that the Lippman plan is not reflective of the realities they face in setting bail; will sow discord among judges handling criminal cases; was rolled out in a manner that was demeaning to judges and the quality of work they do; and is at odds with statutory requirements and ethical restraints designed to protect the judiciary from outside influences.
When he announced the bail initiative on Oct. 1, the Chief Judge said change was needed to overhaul “our broken system of bail” to assure that the courts are “fair and just to each and every New Yorker, rich and poor alike” (New York Law Journal, Oct. 2). According to the Office of Court Administration (OCA) data, about 45,500 criminal defendants remain in jail after their first court appearance because they are unable to post jail and more than half of those remain at the jail on Rikers Island until their cases are resolved.
To remedy the problem, Lippman announced that the court system would be implementing a series of administrative reforms, including the appointment of a single judge in each borough assigned to automatically review the bail of any defendant charged with a misdemeanor who is in jail for more than 10 days after their arraignments. Additionally, judges presiding over felony cases would be required to periodically review the strength of the prosecution’s case and its readiness to go to trial. A third measure would enhance training for judges and clerks on types of bail, statutorily provided for, but infrequently used.
The greatest irritant, cited by a number of judges, is that Lippman’s call for reform does not reflect “the real work that real judges do,” in the words of a judge sitting in Manhattan. A judge handling criminal cases in the Bronx echoed that thought, saying that the Office of Court Administration has “no idea what we do.”
As for the plan to review the bail levels set for jailed misdemeanor defendants, remaining in jail more than 10 days after their bail was set, a judge expressed amazement that the Office of Court Administration would proceed with a plan that had no authorization in the Criminal Procedure Law. “There is zero provision for an ‘automatic’ review of bail set by the judge presiding at arraignment,” the judge said, citing Section 530.30, which only authorizes another judge to review the initial bail level “upon application of a defendant.”
David Bookstaver, the OCA’s chief spokesperson, said plans have been drawn to meet the requirement for an “application” from the defense. The reviewing judge in each borough, he said, will be given a list of all misdemeanor defendants who have been in jail for more than 10 days, and the reviewing judge will then ask their attorneys if they wish to submit an application.
That solution reflects a significant retreat from the description contained in a press release distributed by OCA at the Citizens Crime Commission breakfast where Lippman rolled out his plan. One of the headings for the most significant new measures was highlighted with bold print as “Automatic judicial review of bail for misdemeanor cases.”
Moreover, defense lawyers are already authorized by statute to make an application for bail review to any Supreme Court justice or acting justice assigned to hear criminal cases. Procedures have been set up in some counties to accommodate those applications. For instance, in Manhattan, all applications for bail review are referred to Acting Justice Larry Stephen.
Bookstaver added that the new bail procedures will “soon” be operational.
Other judges faulted Lippman’s rationale that the bail system is broken because judges are setting bail at levels beyond defendants’ reach. Two Manhattan judges said that “judges are not happy” about being placed in a situation where the message from above is that too many defendants are being jailed because they cannot make bail. One judge said that the systematic lowering of bail levels “can only lead to resentments among judges sitting in the same courthouse.”
McLaughlin Leads Charge
Many of the judges’ objections to the plan were first crystallized in a letter-to-the-editor of the New York Law Journal, dated Oct. 6, submitted by Acting Justice Edward J. McLaughlin, a tough, law-and-order jurist sitting in Manhattan. In his letter, McLaughlin slammed Lippman for the “insulting” assumption that indigent defendants are languishing in jail because “countless judges in five boroughs, without consulting each other, knowingly made wrong bail decisions.”
McLaughlin went so far as to question whether Lippman was violating the Judicial Conduct Code by sending a top-down message that bails should be lower. Lippman’s remarks in announcing the bail plan to the press, McLaughlin wrote, “impl[y] that he could suggest a goal and that judges, like lemmings, would dutifully comply rather than make individualized, case-specific decisions as we are ethically required to do.” McLaughlin sent his letter to the 125 judges handling criminal cases throughout New York City.
McLaughlin’s letter remained at the Law Journal for two weeks without a response. It was only after McLaughlin’s law secretary inquired on Oct. 20 as to the status of the letter, that the paper’s editor-in-chief, Kristina Fischer, advised him that she had decided not to publish it.
The delay proved fatal. In her email, also dated Oct. 20, Fischer advised McLaughlin’s law secretary, Frank Loss, “we only run letters that are sent to the NYLJ alone. Since the letter was distributed to so many others and reported on, it no longer functions as a letter to the editor.”
During the intervening two weeks, the New York Post ran an article on Oct. 13 about McLaughlin’s letter, calling it “a stunning rebuke” to Lippman and a day later published an editorial, lauding McLaughlin for “stand[ing] up against idiotic bail ‘reform.’ ” As a former reporter at the Law Journal, I am well aware that nothing leeches material of its news value more that the publication of an article about the same subject in one of New York City’s daily papers.
In referring to McLaughlin’s letter as having been “distributed to so many,” Fischer’s email obliquely referred to the interest McLaughlin’s letter was sparking within the judiciary. Such a development should have increased the letter’s news value, at least until the Post article appeared on Oct. 13—a week after it had been sent via email to the Law Journal. McLaughlin said in an interview that, after distributing the letter, he “received visits, emails, phone calls, smiles and hugs from many judges.”
The Post’s article apparently caught the eye of top officials at OCA. On Oct. 13, the same day as the Post article appeared, McLaughlin received word that Chief Administrative Judge Lawrence K. Marks wanted to meet with him to discuss bail “policy” in an effort toward “reconciliation,” according to two sources. Because McLaughlin was on trial at the time, the meeting was scheduled for the following day, Oct. 14. On the morning of the 14th Marks cancelled the meeting, which had been scheduled for later that afternoon, the sources said.
Bookstaver, OCA’s spokesman, would only state that no meeting ever took place, but refused to address any questions relating whether or why a meeting might have been scheduled and then subsequently cancelled.
Ironically, a week later McLaughlin was blasted in the Post and the Daily News for having referred a suspect in the murder of a New York City police officer to drug treatment five months ago. The suspect, Tyrone Howard, was arrested for the slaying of Officer Randolph Holder. At the time of the deadly encounter on Oct. 20, Holder, in response to a 911 call, was chasing Howard as he fled from a shootout between rival drug dealers in East Harlem.McLaughlin’s quick slide “from hero to goat,” as one judge put it, did not go unnoticed. “There are conflicting imperatives,” the judge said. “Lippman wants to make sure that no one is detained unfairly because of an inability to make bail and the politicians and papers will crucify a judge who lets someone out who then commits an horrific crime—either way we lose at any time in any case.
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Scott H. Greenfield, prompted by this article, wrote a post on Nov. 18 for his Simple Justice blog, with a different take on why judges are so incensed by Lippman’s bail reforms. Click here to read Greenfield’s analysis on how the bail-setting process is distorted by judges’ fears that they will end up on the front page of the New York Post should they release on bail the “one in a million” defendant who goes on to commit a heinous crime. Judges, who buy into such a remote fear, he writes, have a stark choice: stand up for due process or “lock ’em up.”