Testimony of Corey Stoughton, Staff Attorney at the New York Civil Liberties Union before Judiciary Committee of the New York State Assembly regarding Proposals to Reform the New York State Justice Courts The New York Civil Liberties Union (NYCLU), state affiliate of the American Civil Liberties Union, has more than 48,000 members across the state. The NYCLU is devoted to the protection and enhancement of the fundamental rights and values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York. We present testimony today regarding the pressing need for the Legislature to reform the New York State Town and Village Court system. Although there is a growing consensus that some type of reform is necessary, we urge the Assembly to recognize that the problem is not simply a matter of a few bad justices. Instead, the problem is structural and systemic, and no reform effort will be complete until the State Legislature takes responsibility for ensuring that every court in the State is adequately funded, that every court is a court of record with a public docket, that there are enforceable standards of justice and meaningful oversight by centralized authorities, and that justices receive the training they need to effectively administer justice in their courts. Background Town and Village Courts are often the first and only encounter most people have with the New York state criminal justice system. There are 1,281 Town and Village Courts with 2,154 Town and Village justice positions, the majority of which are filled by minimally trained non-lawyers. These courts have jurisdiction over the largest number of cases in the criminal justice system, including misdemeanors, violations and traffic infractions, as well as the initial stages of felony crimes. In the 21 counties that have no City Court, Town and Village Courts are the sole overseers of justice in the vast majority of criminal prosecutions. The justices in the Town and Village Courts have the power to imprison people for up to one year, evict people from their homes, set bail that can result in lengthy pre-trial incarceration for people awaiting their day in court, and impose substantial fines. Though they wield this great power, Town and Village Courts are not equipped to use it wisely, and the results are predictably alarming. News reports detail stories of judges calling an African-American litigant "that colored man"; telling a victim of domestic abuse that "Every woman needs a good pounding every now and then"; explaining, when confronted by state disciplinary officials, that he "follows [his] own common sense" and "the hell with the law." We have heard stories of a justice who routinely jailed people who were unable to pay fines for minor violations and, when confronted over this practice, explained that no one had told him to do any differently. Another judge ruled on a case based on secret personal interviews of one side's witnesses, explaining when confronted that she had never heard of the rule barring ex parte meetings with litigants. Yet another justice allowed the local prosecutor to write her decision denying a motion to suppress evidence that had been seized illegally by the police, claiming that she did not "really have time to puzzle [it] out." Ironically, the horror stories do not convey the true extent of the problem. The real story is that every day, across the state, the Town and Village Court system is failing to meet basic constitutional standards of justice. A year-long investigation by the New York Times uncovered not merely isolated examples of bad judging, but "overwhelming evidence that decade after decade and up to this day, people have often been denied fundamental legal rights. Defendants have been jailed illegally ... . People have been denied the right to a trial, an impartial judge and the presumption of innocence." Perhaps most alarming is the apparently widespread notion among Town and Village Court justices that they are there to make the law, not to adjudicate and apply it. News reports have quoted justices as describing their decisions as "down-to-earth solutions" and explaining that they have to use their own judgment because "the law is not always right." The Spangenberg Report, created at the behest of the Kaye Commission on the Future of Indigent Defense, quotes another justice as saying that he "is concerned about good attitude regardless of what the law requires. Some people are given a break and some people with a bad attitude do not get a break." This kind of misunderstanding of the role of a judge poses a fundamental threat to due process and equal protection of law. Miscarriages of justice like these are all too common because the Town and Village Court system is broken in three key ways: (1) it is insufficiently funded, due in large part to the fact that the State has abrogated responsibility for funding these courts to cash-strapped local governments; (2) there are no enforceable standards or mechanisms for oversight to ensure that Town and Village Courts meet basic standards of due process; and (3) the justices in the Town and Village Court system, most of whom are not trained legal professionals, are inadequately trained and thus ill-equipped to administer justice. The Need for Adequate Funding and Reform of the Funding System A substantial part of the problem in the Town and Village Courts is lack of resources. The courts simply do not have the staff and financial support to administer justice fairly and effectively. A recent study showed that 24% of all Town and Village Courts had no staff or support infrastructure whatsoever – no clerks, no libraries. Most courts have no computers. Even the most well-meaning justices cannot operate under such conditions. The law cannot be administered if those called upon to apply the law are not equipped with the rudimentary tools needed to learn what the law is. The solution to the funding problem is not simply allocating more money to provide computers and clerks, but also reforming the way the Town and Village Courts are funded. Unlike every other court in New York State, the Town and Village courts are funded out of local government coffers, which oftentimes do not have the capacity to ensure adequate funding. This situation creates perverse incentives for justices under pressure from local government officials to keep costs down, even at the expense of necessary procedures and expenditures. The system also results in grossly underpaid justices in some of New York's poorest counties – as low as $100 per month – perpetuating disparities across the State. The legislature must accept responsibility for ensuring that justice and due process in New York's court system is not denied in the name of cost-cutting. The Need for Town and Village Courts to Be Courts of Record As nearly everyone acknowledges by now, it is no less than a travesty of justice that the Town and Village Courts operate in the dark, without recorded proceedings and public dockets. This lack of transparency allows errors of law and miscarriages of justice to fester behind closed doors and effectively prevents any meaningful appellate review of the decisions and conduct of the Town and Village Court justices. We are reassured by Chief Judge Kaye and Chief Administrative Judge Lippman's commitment to address this particular problem, 8 and urge the legislature to provide whatever financial support is needed to ensure that every court in the State is a public court of record. The Need for State-Wide Standards and Oversight A further problem is the lack of enforceable standards and oversight of the proceedings in the Town and Village Courts. Unlike every other court in the State, Town and Village Courts are not officially overseen by the Office of Court Administration, but rather by local authorities, if at all. The State Commission on Judicial Conduct is only charged with policing clear ethics violations and, by its own account, is not equipped to fully monitor the many Town and Village Courts throughout the state. The result is that there is no effective check on the operation of these courts and no accountability for their failures outside of the local community. In the absence of state-wide standards and oversight, we see fundamental misunderstandings among Town and Village Court justices of basic legal procedures designed to protect people's rights. We have seen courts closed to the public, witnesses giving testimony who have not been sworn to tell the truth, people awaiting trial being held in jail far longer than the law allows, justices issuing severely disproportionate punishments for minor violations, and sentences issued without trial. Because these courts are not under OCA's jurisdiction, there are no reporting requirements that would allow us to monitor the full extent of the problem. Chief Judge Kaye has proposed measures to increase oversight, including the appointment of supervising judges to oversee the Town and Village Courts, but it is not clear that those judges would have sufficient authority to guarantee that the quality of justice is improved. Given the poor track record of these courts in meeting basic constitutional standards of due process, there must be a centralized, state-wide authority with the resources and the mandate to police the Town and Village Courts. No less is required when people's homes, livelihoods and freedom are on the line. The Need for Fully Trained Legal Professionals as Town and Village Court Justices Close to 70 percent of New York's 2,154 Town and Village Court justices are not trained legal professionals – the largest number of any state in the nation. Though they operate with little or no prior legal experience in the vacuum created by the lack of state-wide standards and oversight, Town and Village court justices receive only twelve hours of training before they are entrusted with the power of the state to imprison and fine offenders. One justice has described the challenge of learning relevant case law and legal procedures under such circumstances as "an impossible task." Although some justices certainly gain experience on the job, a recent study noted that there is a high rate of turn-over among these elected justices, meaning that most justices do not have the opportunity to learn from their mistakes. More importantly, many of those mistakes represent fundamental travesties of justice. No criminal defendant's right to due process should be sacrificed while we wait for Town and Village Court justices to acquire on-the-job training. Proposals to increase the amount of training for Town and Village Court justices above the current one-week program are well-meaning but cannot possibly address the full scope of the problem. Even the most capable judge cannot in a matter of weeks learn the principles of substantive criminal law, criminal procedure, civil law, judicial conduct and ethical principles necessary to run a court. We have already in place a system for ensuring that legal professionals have the basic knowledge necessary to do their jobs properly: the New York State Bar Exam and the Bar's requirement for Continuing Legal Education. It is ironic that judges are held to a lower standard than the lawyers that appear before them, and simply bizarre that judges are required to undergo less training than licensed manicurists and hair stylists. The entire State court system should be professionalized in accordance with the rules already in place for the legal profession. Although the concept of non-lawyer judges may have made sense in another time when lawyers were more scarce, modern law – and particularly criminal law and procedure – is a complex body of rules and getting those rules wrong can mean the difference between freedom and incarceration for people brought before a Town and Village court. The proposal to increase training for non-lawyer justices should be seen as an interim step only. Future candidates for justice positions in the Town and Village Courts should be required to demonstrate good standing as a member of the New York Bar. And all justices – whether lawyers or not – should receive the same degree of training other state court judges receive before taking their seat behind the bench. The Effect of the Broken Town and Village Court System on Due Process and Particularly on Indigent Criminal Defendants Failure to address comprehensively the problems of inadequate funding, lack of standards and oversight, and lack of training will only perpetuate both the crisis facing the Town and Village Court system and the parade of horror stories that have emerged in recent reports, not least of which is William Glaberson's shocking series entitled Broken Bench, published in the New York Times last September. But, as is often the case, the impact of this broken system is felt most severely by the poor, and it is this aspect of the problem to which the NYCLU would like to call particular attention. The NYCLU has spoken loudly and often about the state of New York's failure to provide for constitutionally adequate counsel to New York's indigent criminal defendants. The combined effect of this failure and the systemic problems in the Town and Village Courts is devastating. In numerous courts throughout the state, jail sentences and large fines are handed down by judges with poor understanding of criminal procedure and substantive law, often with undue influence from the local District Attorney, and no lawyer is there to stand up for the rights of the person charged. The Kaye Commission on the Future of Indigent Defense Services reports that "the deprivation of indigent defendants' right to counsel [is] widespread in Town and Village Courts." That comprehensive study, as well as the NYCLU's own observation of courts in several counties has shown that many Town and Village Court justices lack a clear understanding as to which cases trigger the right to counsel. The result all too often is no appointment of counsel at all, leaving indigent defendants to negotiate pleas with the prosecution while unrepresented or face the Byzantine procedures of trial without any legal guidance from a lawyer. In another example of misunderstanding the constitutional right to counsel, news reports show that one Town and Village Court justice regularly required defendants to perform community service work to pay for their court-appointed lawyers, even if they were found not guilty. When confronted with the unlawfulness of this practice, he reportedly said that "the only unconstitutional part is for these freeloaders to expect a free ride." Even where justices do grasp the notion that everyone is entitled to counsel the State of New York's underfunded and mismanaged public defense system means that counsel for indigent defendants are often simply not available to attend the numerous Town and Village Courts. There are often significant delays in the appointment of counsel, resulting in unnecessary jail time while people await arraignment or trial. As the Kaye Commission Report puts it, "[t]he widespread abrogation of the right to counsel for the indigent defendant in [town and village] courts is simply unacceptable." And even when defense counsel is present, the Town and Village Court justices' lack of training magnifies the effects of the lack of adequate public defense in New York state. The Kaye Commission reports that because justices are "[o]ften lacking sufficient legal knowledge and confidence, some justices are averse to trials and defense motions, seek advice from local prosecutors before making decisions, make subjective rather than legally objective decisions, and/or lose their independence by succumbing to local government pressure to guard its funds and frequently set excessive bail in many minor cases." Conclusion The reforms suggested by Chief Judge Kaye are an important first step. We strongly support Chief Judge Kaye's proposal to make the Town and Village Courts into courts of record as a necessary step toward restoring due process. But even more comprehensive legislative change is necessary to bring the Town and Village Courts in line with constitutional standards of justice. Other states, notably Delaware and California, have had the courage to undertake similar reforms. Until such reform occurs in New York – including changes to the funding system, establishing enforceable state-wide standards and increased oversight, and professionalizing the Town and Village Court system by requiring that judges meet the same standards as members of the Bar – there will be no justice in the Justice Courts. And until there is a state-wide guarantee of the right to counsel for indigent criminal defendants, there will be no justice in any court in the State. New Yorkers should not have to wait for a lawsuit to accomplish these goals. The legislature must move to reform both the public defense system and the Town and Village Courts. Failure to do so would be its own crime.

Stay informed

The New York Civil Liberties Union is a state affiliate of the ACLU

Learn more about ACLU National