“No judge has ever lost their job setting bail on someone.”
That is what a judge whispered one night to a new attorney during a busy arraignment shift. While shocking, the confession merely confirmed what we already knew. As public defenders with more than 25 years of combined experience, we can tell you the secret that everyone knows in criminal courtrooms: if a judge wants to keep their job, they need to take away people’s freedom in order to avoid negative press.
The latest example is the NYPD’s recent social media attack against a judge who released a defendant under supervision instead of setting bail and detaining them. The case drew headlines because the NYPD’s aggressive social media posts were full of misinformation, including misidentifying the judge. They led to a barrage of media coverage and even a paparazzi-like attempt by the New York Post to approach the judge outside of her home.
Ironically, judges are silent about such heavy-handed attempts to intimidate them into setting bail, even while they speak out forcibly against rigorous attempts to increase judicial accountability and transparency.
In the last few years, a chorus of judges harnessed the media, and their published decisions to attack New York’s bail reform for limiting their discretion to impose bail.
Twelve New York judicial groups, along with two retired appellate justices, launched a media attack against a research report. The study found that the decisions of the 14 most carceral judges in New York City resulted in an estimated 580 additional people detained and more than $77 million of additional costs borne by taxpayers. In their public letter and two op-eds, judicial groups and the retired appellate justices accused the report’s authors of trying to “intimidate” judges and destroy judicial independence by scrutinizing their bail decisions.
The retired appellate justice who was most vocal in his opposition to the research report used the recent NYPD media attack on his former colleague to attack the report yet again: he drew a false equivalence between the anecdotal attack by a law enforcement agency and the rigorous, data-driven study conducted by researchers.
Transparent scrutiny is not a threat to judicial independence. Rather, the real threat stems from an unrelenting onslaught of pressure to incarcerate by the powerful NYPD, media, politicians, and court administrators — a pressure that judges are aware of and succumb to. In fact, New York judges told researchers that their worst “nightmare” is to appear on the front page of the Post because of their decision to release, rather than lock up, a defendant.
Articles frequently name judges who release anyone who goes on to allegedly commit a new crime. Yet, when a person dies on Rikers Island, none of the stories mention the judge who made the bail decision that turned out to be a death sentence. Sensationalist headlines call for the removal of judges for following the law.
Pressure by the press, the mayor, the governor, and the court administration to order pretrial detention creates an environment in which judges cannot exercise their judicial independence to release people pending trial — unless they are willing to suffer professional consequences.
We have personally seen this play out. During our time working in Criminal Court, when a judge consistently made bail decisions that the prosecution disagreed with, the same playbook would unfold.
First, the judge would get “The Talk” (which is how multiple judges referred to it) from the supervising judge about “how things were done”; then, if they kept granting people their liberty, they would be taken off favorable judicial assignments, ones that could lead to promotions; then, if they still didn’t get the picture, they were removed from hearing criminal cases altogether.
This practice has recently made headlines, and we know of at least three judges, all of them women of color, who were removed for this reason. This doesn’t feel like “judicial independence” to us.
The judicial backlash against scrutiny reveals a judiciary that fights to expand its discretion and shun transparency. Meanwhile, the same judges remain noticeably silent amidst intimidation and pressure from law enforcement and the Post advocating for heightened detention and harsher punishments.
Judges who demonize transparency efforts are undermining public trust in the courts. A criminal legal system that is beholden to the NYPD, conservative media outlets, and politicians is not independent. A judiciary that wants greater power to detain, while keeping intact the forces that limit the discretion to release, is not serving the interests of New Yorkers.
Petrigh, a clinical associate professor at Boston University School of Law, is a former NYC public defender. Orlins is a NYC public defender and former candidate for Manhattan district attorney.
