Remake New York’s highest court
It is a momentous time for reforming the criminal legal system, as Derek Chauvin’s murder of George Floyd has galvanized efforts to reform, defund or abolish the police. However, the criminal legal system is multi-layered, and the courts are often the final arbiters of police conduct. And the courts’ failings in that regard are evidenced by law enforcement’s ongoing race-based stops-and-frisks and car stops, and the use of interrogation and identification procedures that result in wrongful convictions. Further, the courts determine how trials proceed, and the unwillingness to reign in prosecutorial misconduct or to correct draconian sentences plays a major role in perpetuating mass incarceration.
As a result of this judicial obliviousness or complicity, attention has turned to judicial nominations. Advocates have called on President Biden to look beyond the usual crop of prosecutors and members of big law firms to those who have spent their careers defending people from oppressive governmental power. Biden appears to be listening. His initial list of nominees for the federal bench includes public defenders and civil rights attorneys.
New York State’s judiciary is at an inflection point, as three vacancies on the seven-member Court of Appeals, New York’s highest court, will be filled by the end of the year. Yet there has not been any similar call for change in the composition of those who will be nominated to fill those seats.
The Court of Appeals has certainly not been a mainstay in protecting the rights of the accused. While people convicted of crime can request that the court review the legality of their conviction, the current court routinely declines to hear those appeals. In fact, the number of criminal appeals accepted by the court is at its lowest point in years.
And not only is the court indifferent, if not hostile, to even hearing criminal appeals; typically, those precious few that are accepted are ultimately denied. In 2018, the court sided with the prosecution 71% of the time, a more one-sided percentage than in the past several decades. That was not an aberration; in 2017, the court agreed with the prosecution in 82% of the few criminal cases it reviewed.
New York’s judiciary needs the same reimagining as at the federal level. Yet the slate of people proposed by the state’s Commission on Judicial Nomination, the entity that vets and sends a list of potential nominees to the governor, promises more of the same. None of the recommended nominees has a background defending people from hyper-aggressive and race-based policing.
The overall silence about judicial nominees for New York’s highest court reflects the reality that too many either fail to understand its outsize role in criminal justice or are satisfied with its pro-prosecution bent. Furthermore, while the court’s rulings have dramatic impact, it operates in relative obscurity. The local media has extensively written about federal judicial nominees but has shown no interest in covering New York’s own high court. No doubt most New Yorkers probably could not name a single judge currently on the Court of Appeals.
The need for a progressive New York court has never been more urgent as the United States Supreme Court is dominated by justices with disdain for people convicted of a crime. Just last week, the high court rolled back the already limited protections for young people facing the prospect of life without parole. Rulings like that cry out for a New York court ready and willing to find greater protections for individuals in the state’s own constitution against police and prosecutorial practices that have disproportionately targeted individuals and communities of color.
And that is not so far-fetched. Once, the New York Court of Appeals was considered in the vanguard of progressive state courts willing to ignore U.S. Supreme Court rulings that trampled on the rights of the accused. That court on many occasions construed provisions of the state constitution more broadly than the comparable federal provisions in areas as fundamental and critical as search and seizure, right to counsel, and due process. But that time is long past.
It is time for change. The current court is entirely the governor’s. He picked every single member — something that only happened once before in the state’s history — and bears responsibility for its blind eye toward the rights of the accused. In the aftermath of George Floyd’s murder at the hands of the police, the governor spoke of “the many injustices minority communities have faced because of a broken and unfair system.” He now has an opportunity to do something about that by assembling a court that is prepared to address at least some of those injustices.
Zeidman is a professor CUNY School of Law. at