Albany Times Union

Judicial accountabi­lity is hobbled by lack of transparen­cy

- By Oded Oren

As the Times Union reported in November, a recent report by Scrutinize and Reinvent Albany found that New York judges effectivel­y decide whether or not to publish their decisions in criminal cases. The result? Only 6% of lower court criminal decisions are public.

This situation is not only regrettabl­e but also violates the law. And as a consequenc­e, New Yorkers are left in the dark as to how their judges mete justice, uphold constituti­onal rights and combat racial disparitie­s in the legal system.

The lack of transparen­cy in the justice system extends beyond judicial decisions. And that lack of public access to judicial decisions, data and memos, hinders New Yorkers’ ability to monitor and hold their judges accountabl­e.

Recent FOIL requests filed by judicial watchdog Scrutinize, in conjunctio­n with the NYCLU and Harvard Law’s Cyberlaw Clinic, seek to access historical court data that would illuminate, and suggest actionable solutions, to the persistent racial disparitie­s in New York’s criminal legal system. Yet the court system has not voluntaril­y made this crucial data available to New Yorkers concerned about the state’s disproport­ionate incarcerat­ion of people of color.

Meanwhile, the administra­tive body overseeing New York’s courts has been fighting to conceal memos with legal guidance for judges. This includes a 2021 memo intended to limit a landmark ruling protecting defendants: It instructed judges to restrict the scope of defendants’ right to a prompt review of orders of protection, which could unjustly separate them from their homes or families.

This resistance does not inspire confidence. Might judges have received other substantiv­e memos directing narrow interpreta­tions of other rulings, or cabining the Legislatur­e’s bail and discovery reform laws?

Given that New York judges do not hold positions for life, public access to their decisions and data is critical for evaluating those seeking reappointm­ent, reelection or promotion.

But New Yorkers have good reasons for optimism: Under Chief Judge Rowan Wilson, the Court of Appeals has shown a greater concern for New Yorkers’ rights and the Legislatur­e’s will.

That’s shown in a recent unanimous opinion in People v. Bay, in which New York’s Court of Appeals upheld key parts of the state’s open-book discovery reform law. The decision reaffirms the protection­s, embedded in law by the Legislatur­e, that require prosecutor­s to share all evidence with the defense, ensuring transparen­cy. It validates the state’s recent criminal legal reform efforts, and it should be celebrated as a new direction for the state judiciary.

Such decisive actions align with the court system leadership’s affirmatio­n that it is “firmly committed to maintainin­g a transparen­t judiciary for all New Yorkers.” They need to continue to follow through. Historical­ly relegated to an afterthoug­ht, state courts and state judges now find themselves at the center of persistent advocacy and reform efforts, and they have an opportunit­y to support and implement changes to increase transparen­cy of their operations. Such changes promise to also strengthen the courts’ legitimacy and improve the administra­tion of justice.

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