Opinion: Judicial independence or intimidation?

The same judicial organizations who condemned academics for publishing a paper about judges setting excessive bail were silent when a judge was reassigned for declining to set bail.

New York State Court of Appeals

New York State Court of Appeals Barry Winiker/Getty Images

Now that another person has perished on Rikers Island, maybe the time has finally come to look not just at the city’s dismal Department of Corrections, but also at the judges who send people to this version of hell on earth

Earlier this year, a group of academics and advocates released a report, Cost of Discretion, which revealed the disproportionately punitive bail practices of 14 New York City judges. One might have hoped that the release of such a data-driven report would have generated concern, if not gratitude, from people concerned with judicial administration, racial equity and basic humanity. After all, the report merely brought to light the dirty little secret already known to most institutional actors in the Criminal Court about the practices of the judges most inclined to send people to Rikers Island.

But rather than express even a small measure of consternation about judges who appear more prone than their colleagues to commit people to jail, individual judges and judges’ organizations have instead rallied to attack the report. Judge Rolando Acosta – until recently the Presiding Judge of the Appellate Division, First Department – published two op-eds claiming that the report sought to “intimidate” judges. Soon after, a coalition of twelve judicial groups published a letter claiming that the report was “designed to intimidate” judges. The lack of any apparent concern about putatively carceral judges is especially troubling given the ongoing crisis at Rikers Island and the reality that 26 people have died in city jails in just the last 18 months.

The judicial organizations’ vocal criticism of the report contrasts starkly with their silence over the treatment of Judge Naita Semaj-Williams, who was abruptly reassigned from Criminal Court to Civil Court, losing jurisdiction over criminal cases, after declining to set cash bail in a high-profile case. By all accounts, Semaj-Williams, a duly-elected Bronx County Judge, did not request the transfer. Instead, it seems that the state’s Office of Court Administration, the body that oversees judicial assignments, capitulated to criticisms of the judge as too lenient leveled by the New York Post, the NYPD and some Bronx County prosecutors. Neither Judge Acosta, nor the aforementioned judicial groups, even mentioned, much less condemned, Semaj-Williams’ reassignment to civil court.

It is telling and ironic that those who critique and denigrate the Cost of Discretion report complain that it is ultimately an attack on judicial independence. Judicial independence is indeed under attack and the message to all judges is clear: allegations of harsh treatment of people accused of crimes will be trivialized or excused, while accusations of too lenient will be met with silence and reassignment.  

This one-sided interpretation of judicial independence also came into view when the New York State Senate declined to confirm Gov. Kathy Hochul’s nominee, Judge Hector LaSalle, to the state’s highest court. The advocacy community’s opposition to LaSalle’s nomination drew swift and vociferous rebuke from the likes of former appellate judges and former Chief Judge Jonathan Lippman. In an op-ed to the Times Union, Lippman accused LaSalle’s opponents of resorting to “innuendo and skimpy evidence” and bemoaned the politicization of the process.  And yet, none of these proponents of judicial independence had anything to say about the treatment of Semaj-Williams.

Semaj-Williams’s reassignment is sure to undermine judicial independence. The Office of Court Administration holds significant sway over judicial rulings by exercising substantial control in assigning judges to different courtrooms, boroughs, or, as in the case of Semaj-Williams, removing them from criminal court. In 2010, a Human Rights Watch study found that the “judicial nightmare” among New York City judges was to be at the center of a tabloid media attack for releasing someone without bail. With Semaj-Williams’s reassignment, OCA reinforced that fear: if judges exercise independent judgment instead of yielding to prosecutorial or law enforcement interests, OCA will not defend them from the ensuing negative coverage and political intervention. Instead, independent jurists like Semaj-Williams will suffer consequences at the hands of court administrators.

OCA's reassignment of Semaj-Williams also has a more insidious consequence: it undermines the democratic representation of the Bronx's people, who are mainly Black and brown. Semaj-Williams, a Black woman, appears to be one of only four Supreme Court judges elected in the Bronx. The other, roughly twenty-two, Supreme Court judges who preside over criminal cases in the Bronx were either appointed by the mayor or governor or elected in other districts. By reassigning Semaj-Williams to oversee civil cases, OCA decreased the Bronx's representation in their own criminal court – already low to begin with – by 25%. While judges are not elected specifically to oversee criminal or civil cases, the reassignment of one of the few elected Bronx judges from the borough’s criminal court, which has long been a site of the mass incarceration and disenfranchisement of the borough’s people, is undemocratic at its core.

The reassignment of Semaj-Williams has further exposed the dangerous influence of conservative media over Hochul, which led to her direct intervention in one of Semaj-Williams’s cases. The governor's recent admission that “horrific cases splashed on the front pages of newspapers” spurred her to roll back the state’s bail laws only confirms the media's power to shape New York’s political agenda. This kind of influence further undermines any semblance of judicial independence.

Although OCA’s actions have caused damage, it is still possible to mitigate its impact. The recent confirmation of Rowan Wilson as Chief Judge of the Court of Appeals and the confirmation of Joseph Zayas as the state court system’s Chief Administrative Judge offer the opportunity for new leadership at OCA. These two judges now have the power to reverse course and take corrective action. To start, they should reinstate Semaj-Williams in Criminal Court and review the bail practices of the judges named in the Cost of Discretion report. By doing so, they would convey to staff, judges, media and the public that judicial independence and the sanctity of human life is valued in New York.

Steve Zeidman is a law professor at the City University of New York and the co-director of the Defenders Clinic at CUNY Law School.