February 11, 2013 Legislative Gazette - Chief Judge Jonathan Lippman, in his annual State of the Judiciary Address last week, announced some major changes to the state's court system including bail reform, wrongful convictions, age of criminal responsibility, civil legal services, mortgage foreclosures and cameras in the courtroom.
"We are pursuing innovative new approaches to fulfill our core mission and serve the people of our state," Lippman said. "In the year ahead, we will do even more to meet the growing need of those most vulnerable in these challenging times and foster a culture of service in all members of the legal profession."
Lippman introduced a "critically important concern" he adamantly says needs to change — the process of bail determinations while a case is still pending in criminal courts. New York, which is not required to consider public safety when considering bail, presently makes its decisions based on the risk that defendants will fail to appear in court.
"Our overriding goal must be to ensure that pre-trial detention is reserved only for those defendants who cannot safely be released or who cannot be relied upon to return to court," Lippman said. "[We must] do all we can to eliminate the risk that New Yorkers are incarcerated simply because they lack the financial means to make bail."
Lippman supported his plan to change bail determinations by revealing that the average cost of pre-trial detention is $19,000 per defendant. If the state was instead to put defendants in a supervised release program that allows the defendant to stay in the community while monitoring their whereabouts, the cost per defendant would be between $3,100 and $4,600. He also referenced the overwhelming success of the results in Kentucky where a supervised release program was enacted in 2005. So far, the program has saved the state $31 million and 90 percent of the defendants placed in the program did not commit any new crimes during their release and appeared for their trial dates.
"The three-pronged strategy that I announce today — revamping our bail statutes to require public safety considerations and a presumption of release for non-violent offenders, investing in supervised release programs with great cost savings for New York's taxpayers and exploring alternatives to traditional bail bonds — will overhaul our approach to pre-trial justice in New York and place us in the front ranks of bail reform," Lippman said.
Ellen Yaroshefsky, professor at the Cardozo School of Law, commended Lippman for his bail initiative.
"These are significant changes that will have a positive impact on individuals and communities and reduce unnecessary costs of the criminal justice system," Yaroshefsky said.
Lippman also addressed the issue of wrongful convictions and recommended two key changes. The first calls for mandatory videotaping of interrogations by law officials, in the hope that this will help to increase transparency and public confidence. The second reforms the procedure used for eyewitness identification. According to the Innocence Project, a national litigation and public policy organization that helps to exonerate wrongfully convicted people, eyewitness misidentification is the single greatest cause of wrongful convictions, nationwide.
Lippman proposes that evidence of a pre-trial line-up or photo identification would only be admissible at trial if the procedure is administered by someone who does not know the identity of the suspect or where the suspect is positioned in the lineup. By doing this, Lippman said he believes any possibility of suggestion to the eyewitness would then be removed.
The issue of juvenile justice, a subject that played a significant role in Lippman's Judiciary Address in 2012, was once again brought to light with Lippman reviving his "Youth Division" legislation that was unable to be enacted before the 2012 legislative session ended. The proposed legislation will again be submitted for review and would require that 16- and 17-year-olds who are currently incarcerated be housed in adult facilities but separate from adult offenders. Additionally no criminal record would remain for youth offenders if the accused is adjudicated of guilt. Lippman also wants "alternative-to-incarceration" community programs to be considered.
"The proposed Youth Division can provide the tailored, age-appropriate approach that New York needs to prevent recidivism and effectively deliver justice to this critical age group," Lippman said. "Let us stop ruining the lives of our young people before they even get the chance to be a part of the American Dream."
One of the reforms mentioned, Lippman's plan to embrace and further extend the amount of pro bono hours that New York state attorneys perform each year, has already been approved by the Administrative Board of the Courts.
Last year Lippman announced a requirement that all individuals wishing to take the New York State Bar first perform 50 hours of pro bono work; this was the first requirement of its kind in the nation. In order to continue the success this requirement has met since going into effect, Lippman's most recent amendment requires that the Rules of Professional Conduct be altered so that the "aspirational goal" for pro bono service per attorney is raised from 20 hours to 50 annually.
Lippman also proposed legislation that would continue his efforts to reduce the number of foreclosures in New York state. Last year Lippman made the issue of foreclosure reform a top priority, increasing the availability of attorneys for those threatened with the loss of their home. Additionally, Lippman created a program that requires bank officials to be present at settlement conferences in order to create a "more efficient and effective process for all parties involved," Lippman said.
Lippman now proposes legislation that would require the banks dealing with possible foreclosures to file a certificate declaring there is a reasonable basis for foreclosure at the time of the initial filing. Additionally the banks will be required to file a proof of service within 20 days rather than the current 120 days. Lippman assured those at the address that these two proposals together will help to "ensure timely participation in mandatory foreclosures while also helping to prevent cases from languishing in legal limbo."
Attorney General Eric Schneiderman issued a statement following the address that supports Lippman's foreclosure legislation.
"[Lippman] has been a champion for justice — his reforms in this area have served as a nationwide model in terms of fairness and efficiency … I look forward to partnering with [Lippman] to pass legislation this session that will provide appropriate procedural safeguards to homeowners facing foreclosure, so that every New Yorker gets the justice they deserve," Schneiderman said.
Lippman's final point of reform in his address dealt with the issue of expanding camera coverage during courtroom proceedings. Under his legislative proposal, all court proceedings, including the testimony of witnesses, would be open to cameras so long as the judge presiding over the case allows it. The proposal also protects the identity of jurors and allows witnesses to request that their faces be obscured from any video taken during court proceedings.
"The public has a right to observe the critical work that our courts do each and every day to see how our laws are being interpreted, how our rights are being adjudicated and how criminals are being punished," Lippman said. "In the year 2013, with all the wonders of modern technology, there is no excuse for not making court proceedings fully accessible to the public."