NY Court Officials Can No Longer Categorically Hide Secret Judge Guidance

In 2021, public reporting uncovered a secret memo from the state’s Office of Court Administration (OCA) providing guidance to New York judges on how they should interpret and apply a recent landmark court ruling. The memo advised judges they could largely ignore a major civil rights victory – making it much less impactful for vulnerable defendants in criminal courts. An OCA spokesperson revealed that writing these kinds of memos was the agency’s “normal practice.”

The contents of the memo – and the fact that OCA had hidden it from the public – set off alarm bells amongst advocates and prompted several crucial questions. How many more of these memos exist? What do these memos say? In what ways are these memos shaping judges’ decisions?

State court judges hold an enormous amount of power in our legal system. They have the ability to take away New Yorkers’ freedom for years, or even the rest of their lives. They have tremendous discretion, and the decisions judges make shape thousands of people’s futures every year.

Given this reality, any official guidance that shapes these rulings is important – and should not be kept secret. Yet that’s exactly what was happening with these guidance memos from OCA. Worse yet, years after the existence of these memos came to light, OCA continues to fight to keep them hidden from the public.

Undermining Bail Reform

Since the initial memo leaked in 2021, we have learned of other OCA memos that could impact New Yorkers’ constitutional rights, including at least two involving bail.

In 2019, New York passed historic bail reform measures designed to move New York closer to living up to the principle that everyone is innocent until proven guilty. These reforms spared thousands of legally innocent people from having to spend days, months or even years in violence-plagued jails like Rikers, away from their families, jobs, and communities.

Studies have shown repeatedly that bail reform has not increased crime in New York. But even before it passed, the reforms were the subject of a vicious, reactionary – and unfortunately somewhat successful – campaign to weaponize fear to undo parts of the law.

In the midst of this years-long campaign to cage more New Yorkers, two secret OCA memos were drafted, one in 2020 and one in 2022. Both appear designed to increase the number of people locked up before they’ve been convicted of any crime.

The NYCLU denounced and fought hard against the repeated rollbacks to bail reform by Governor Hochul and the state legislature. But at least New Yorkers got to hear arguments for and against these changes (albeit not always with full transparency about how the changes were made). And the text of the laws is available to anyone who wants to read it.

OCA, by contrast, kept its memos confidential and hidden from the public. If the 2021 memo had not surfaced, New Yorkers would still have no inkling that OCA sends judges guidance on how to apply the law. And without transparency, we will never know how many decisions the OCA memos influenced—and may still be influencing—and how many people were kept locked up as a result.

The Fight to Release the OCA’s Hidden Memos

The NYCLU believes the public has a right to know what’s in all of OCA’s memos – especially when it could cost New Yorkers their freedom.

So in September of 2021, we wrote to then-Chief Judge Janet DiFiore of the New York Court of Appeals and Chief Administrative Judge Lawrence Marks to express serious concerns about this secretive practice and request that the OCA provide copies of all memos of this type issued over the last ten years.

OCA denied our request, setting off a years-long court battle. Finally, in October, the New York State Court of Appeals ruled in our favor and ordered OCA to give any documents it believes it doesn’t have to release to a trial court for review. The trial court will then decide which memos, if any, can be withheld from the public.

This ruling is an important victory for judicial transparency. The government can no longer categorically withhold a set of documents that may impact the rights and liberties of New Yorkers. Other types of administrative guidance are publicly available, and the OCA memos should be no exception. Advocates must be able to respond to any guidance they disagree with in order to defend our civil rights. It is time for OCA to end the secrecy and finally release the memos.