Lack of Transparency in New York Courts Undermines Democracy

In a functioning democracy, transparency is not just a buzzword — it is a cornerstone. It is necessary in order for citizens to hold their government accountable, from the legislative halls to the judicial bench. Now, as attention shifts to state courts in the wake of the U.S. Supreme Court’s increasing hostility toward civil rights and liberties, the need for transparency into the state judiciary is more vital than ever.

In New York, a significant lack of transparency in state courts — and its implications for accountability and rule of law — is outlined in a new report, Open Criminal Courts, which I co-authored with Rachael Fauss from Reinvent Albany. In New York, all appellate written decisions are freely available online, but lower court judges choose whether to make their written decisions public. Our data analysis reveals that approximately 94–99.5 percent of all New York criminal court written decisions are shielded from the public’s eye.

To put this into perspective, consider the criminal cases of Harvey Weinstein and Donald Trump in New York. Despite the importance of these cases to the public, decisions in both cases have not been made publicly available. If transparency is lacking even in these spotlighted cases, imagine the opacity that shrouds the tens of thousands of less-publicized criminal cases.

The failure to make them publicly available significantly hampers New Yorkers’ ability to scrutinize and hold their judges accountable. Take, for example, the NYPD’s practice of “stop and frisk,” which criminal court judges review for constitutionality in suppression hearings. Despite the importance of these judicial determinations — which interpret and apply the state and federal constitutions — many are not made public. This not only leaves New Yorkers with limited insight not just into how judges are overseeing this specific, contentious police practice, but also into how they interpret and apply other constitutional rights, like the right to remain silent.

While the lack of transparency in how judges interpret constitutional rights is concerning, it is not the only area where opacity hampers accountability. Consider New York’s discovery and bail reform laws, which came into effect in 2020 and aimed to create a fairer, less punitive criminal justice system. Even as documented evidence has surfaced showing that judges have attempted to undermine these laws — sometimes even intentionally violating them — many of the decisions in which they interpret these statutes remain publicly unavailable. Consequently, legislators and the public are unable to assess how individual judges, and the judiciary as a whole, have implemented the reforms and whether they are interpreting them in good faith.

The lack of access also impedes defense attorneys, affecting the preparation of defenses and potentially leading to inconsistent application of laws. Written decisions serve as persuasive authority and guide judges and attorneys. These decisions, though not binding, are essential for legal arguments and strategy formulation.

Public access to written judicial decisions is especially crucial in states like New York, where judges hold their positions for a short term and must seek reappointment or reelection (depending on the type of judgeship) to continue doing their jobs. Written decisions offer an objective, detailed view of a judge’s jurisprudence and legal acumen, and are a far more reliable indicator of a judge’s performance than hearings or questionnaires. As such, they are essential to helping voters and other decision-makers assess whether a judge should stay in office. However, when the law allows judges to control which decisions are made publicly available, they may skew assessments of their qualifications by choosing to release a biased sample of their decisions.

The reasons why judges do not publish their decisions remain unclear. Possible explanations include a belief that only decisions featuring novel arguments merit publication, a desire to avoid scrutiny, and, simply, the heavy workload borne by state judges. Nevertheless, this phenomenon extends beyond New York courts. Other state jurisdictions also do not disclose all decisions, and although the federal system does so through the Public Access to Court Electronic Records (PACER) website, it is not freely accessible to the public.

Amidst these challenges, localized efforts in Brooklyn and the Bronx are demonstrating the real-world uses and impacts of having access to judicial decisions. In Brooklyn, the chair of the Democratic Judiciary Committee has taken a proactive step by asking judges to submit ten of their publicly unavailable decisions during the screening process for 14-year terms on the bench. This initiative elevates the role of merit in judicial nominations and looks beyond what judges had chosen to make publicly available. Meanwhile, in the Bronx, access to a judge’s erratic decisions in a case litigated by the Innocence Project has unveiled stunning accusations of abusive judicial behavior, underscoring the critical role that transparency plays in holding judges accountable. Together, these initiatives demonstrate how access to judicial decisions can enhance advocacy, accountability, and judicial quality.

The solution to the transparency gap is relatively straightforward: make all written decisions publicly available. New York should require that judges issue written decisions whenever a pre-trial hearing is held or a written motion is filed. Such changes would enhance public trust, allow for better legislative oversight, and provide invaluable insights into legal interpretations and trends. Fortunately for New York, State Senate Deputy Leader Michael Gianaris has committed to introducing the legislative recommendations from the report.

Yet increasing judicial transparency might not be an easy feat, and New York again serves as a prime example of this challenge. Earlier in 2023, a report that used a statistical analysis to identify New York City’s disproportionately carceral judges drew a significant backlash from judicial organizations and former appellate judges. Their criticism? That scrutiny of judicial decision-making amounted to “intimidation” and an attempt to “undermine judicial independence.” As another example, New York’s court administration has fought to keep legal guidance memos hidden, including one that aimed to curb a landmark ruling protecting defendants. These reactions reflects an uncomfortable reality: some judges and court systems, unaccustomed to scrutiny, react defensively and dismissively when confronted with greater transparency.

The quest for a transparent and accountable judiciary is not just a legal issue, but a democratic imperative. As we continue to push against the barriers of judicial opacity, let us remember that the integrity of our courts is inextricably linked to the health of our democracy.

Oded Oren is the Founder & Executive Director of Scrutinize, which uses innovative and scalable data-informed tools to advocate for judicial accountability.