These findings have prompted Senate Deputy Majority Leader Michael Gianaris, D-Queens, to call for legislation that would emphasize judicial transparency.
The report, “Open Criminal Courts: New York Criminal Reports Decisions Should be Public,” shows an overwhelming majority of all criminal court decisions are not made available to the public, year after year. In New York, from 2019 to 2022, there were 1,092 decisions that were published. During that same time period, there were over 220,000 violent felony and misdemeanor cases, which typically lead to at least one written decision.
Using that data, Reinvent Albany’s analysis “suggests that only 0.5 percent to 6 percent of written court decisions are published,” with the 6 percent mark being a conservative estimation. That estimation means that between 17,000 and 218,000 decisions over a four-year period — or 4,250 to 54,500 every year — remain unpublished.
The report addresses a root issue regarding judicial transparency, citing “the limited electronic publication of written decisions by criminal court judges,” as the primary culprit. It also highlights why public access is necessary: proper reporting of criminal court decisions would lead to better legal insight; legislative oversight; and judicial assessment, with the overall goal of a stronger and more democratic judicial system.
New York Judiciary Law states, “Each reported decision shall be published as soon as practicable after it is rendered.” Despite this law, it is estimated that 94 percent of the annual court decisions are not made easily accessible and available to the public. To most people, the idea of “publicly accessible” records means they would be available on the internet.
Not uploading court decisions in a digital format reflects “an archaic standard of public access,” according to the report.
“This lack of transparency not only hampers voters’ ability to assess judicial candidates, but also undermines legislative oversight of criminal law reforms, “ said Racheal Fauss, the senior policy advisor for Reinvent Albany.
The report finds that In New York, criminal court judges effectively decide whether or not to publish their decisions. Of the judges who published at least one decision a year, the average number of published decisions was only two to three decisions a year.
The number of judges presiding over criminal cases each year is not made available by the court system, meaning that it is not possible to determine how many judges publish zero decisions each year.
Of the 600 New York criminal court judges who published at least one decision between 2010 and 2022, a mere 20 judges — 3 percent of those on the bench in New York — were responsible for 28 percent of all published decisions, while 356 judges — or 59 percent — published three or fewer decisions.
Such a distribution indicates a large disparity in the reporting practices of the courts. Without a regulated judicial reporting system, judges are left to their own devices when choosing to publish, or not.
The number of annual court cases has skyrocketed over the past few decades and has overwhelmed the court system. As a result, increased caseloads can contribute significantly to backlogs in reporting. Sometimes not reporting decisions might be personal choices, serving to benefit judges, as withholding information can shield their choices from potential public criticism.
Judges may also believe certain rulings may not be as important enough to publish.
Whatever the reasoning, critics say that judicial transparency has suffered, effectively dampening democracy.
“New Yorkers deserve transparency and the right to know what’s happening behind closed judicial doors,” said Susan Lerner, the Executive Director of Common Cause New York.
Advocates for reform say It is essential for the public to understand how legal issues are reasoned and decided. Readily available decisions would largely benefit others within the state court system, who could use written decisions for research on pending and future cases.
The Open Criminal Courts Report recommends legislation that would require written decisions to be published online, as to be truly publicly available.
Specifically, the report recommends:
- New York should pass a law to increase transparency by requiring written decisions by criminal court judges to be publicly available online.
- Judges would be able to submit transcripts of oral rulings in lieu of written decisions.
- The new law would mandate publication of decisions when they resolve a legal issue raised in a written motion or decide a pre-trial hearing.
- The new law would also require the Office of Court Administration to make all written criminal court decisions authored in the past 15 years publicly available.
- The Office of Court Administration should immediately begin implementing these policies administratively.
“New Yorkers deserve a court system that is transparent and accountable,” said Gianaris, regarding the idea of enacting legislation. “The gravity of these decisions warrants greater openness and my new proposal will ensure the rights of everyone in our legal system are protected and judges’ records are clear for the public to see.”