By the time singer-songwriter Fiona Apple introduced the practice of courtwatching to millions of Americans last year, urging them to go observe the basic machinery of the criminal legal system at work, these programs had emerged all over the nation. Typically, they’re piloted by people critical of mass incarceration who hope to shed light on the everyday abuses defendants suffer when nobody’s looking. In Los Angeles, organizers visit one of the county’s 36 courts twice a month. In Baton Rouge, the Reverend Alexis Anderson is at the local courthouse almost every day. “Everywhere you’ve got a court, somebody needs to be watching it in real time,” she told me.

A new courtwatching effort has sprung up in San Francisco in recent years. Like the other groups, Stop Crime SF volunteers attend hearings and take notes. They emphasize the importance of transparency and public accountability. “San Francisco courts are notoriously opaque,” the group’s founder, Frank Noto, told me.

But Stop Crime SF is approaching courtwatching from essentially the opposite direction. Noto and his fellow members want harsher sentences for people with repeated violations, and they’re highly critical of judges who let people out on their own recognizance, meaning without money bail, to await trial. “At a time when drug overdose deaths are at an all-time high, many chronic drug dealers and other repeat violent felons are free on our streets because of overly lenient court rulings,” the group said in an August statement.

Now, as California’s March 5 elections approach, Stop Crime SF’s sister c(4) organization, Stop Crime Action, is jumping into the city’s judicial races and working to oust two sitting judges whom it says are fueling this crisis, Michael Isaku Begert and Patrick Thompson. The group, which is also led by Noto, is championing Chip Zecher and Jean Myungjin Roland, Begert and Thompson’s challengers, who are also running with heavy tech and venture capital money and support from the local police union. 

The response from Bay Area progressives has been furious, with City Supervisor Aaron Peskin urging voters to “reject this right-wing attack on San Francisco’s judiciary.” LaDoris Cordell, a former superior court judge in Santa Clara County, south of San Francisco, said she worries that “you may see a sea change in how judges behave” if Stop Crime SF’s effort succeeds and Begert and Thompson are removed. 

“These judges are going to start handing down harsher sentences and who is it going to impact?” Cordell told Bolts. “Poor people, people of color, and here we go again.”

San Francisco has in recent years been embroiled in an intense debate over policing and incarceration that attracted national attention when the city elected and then quickly recalled progressive DA Chesa Boudin. In the years since, Boudin’s critics have continued blaming progressive reforms for crime and drug problems in the city, benefiting from an alliance with a fleet of billionaires who have used their considerable resources to boost politicians and legislation with a more punitive approach.

The latest offensive against San Francisco’s judges fits into this broader playbook. Still, the fact that advocates for greater punishment are using an approach crafted by proponents of criminal legal reform renders it more confounding. On its own, courtwatching is essentially neutral, and its empirical nature seems to render it trustworthy. The question is: Who’s watching? And what happens next?

The California prison population ballooned from just over 21,000 in 1978 to over 175,000 at its peak in 2006, driven in part by some judges’ tendency to maximize sentences. And the perception that voters would only support tough-on-crime officials has also shaped how the judiciary has approached its work. 

“When I started as a baby judge, and I was first appointed, one of the older judges came to me and said, ‘Look, if you don’t want to get reversed in criminal cases, just throw the book at everybody,’” Cordell recalls. 

Later, when she ran for reelection, Cordell was attacked for being too soft with defendants. “My opponent was this hard-nosed DA, and he put out, ‘she’s just a Rose Bird clone,’” she told me. That’s a reference to former California Chief Justice Rose Bird, who faced years of reprisals from conservative groups for overturning death sentences as unconstitutional. In 1986, residents voted decisively to remove her from office. 

Cordell prevailed and secured reelection, though, ultimately staying on the Santa Clara superior court from 1988 to her retirement in 2001.

These battles have picked up in recent years. Santa Clara voters recalled Judge Aaron Persky in 2018 after he gave Stanford student Brock Turner a three-month sentence for sexual assault. Turner was required to register as a sex offender for life, but after the case made national news, some onlookers found the sentence unforgivably light and levied a campaign against the judge. 

Inversely, also in 2018, four San Francisco public defenders ran from the left against sitting superior court judges; all lost, though one of them was elected the following cycle. In 2022, Angelenos elected a public defender to the bench who ran on a goal of lowering incarceration rates and criticized sitting judges for stubbornly resisting sentencing reforms. 

Progressives’ wins in judicial races came alongside their takeover of DA offices in San Francisco in 2019 with Boudin and Los Angeles in 2020 with George Gascón, outcomes that intensified pushback from critics of criminal justice reform. 

Noto, a former lobbyist for real estate developers, started Stop Crime SF as a neighborhood group back in 2017, advocating for more resources for police and new legislation to prevent car break-ins. The group promptly took on Boudin after his election and later supported the effort to recall him. That November, Joel Engardio, who was Stop Crime SF’s executive director, ousted an incumbent supervisor. 

During this time, the group expanded its scope to scrutinize the bench, building a courtwatch program to get volunteers to study how judges responded to property crimes. “We wanted to make sure that judges understood, that the district attorney understood, that these are important too and they just couldn’t ignore this,” Noto told me. Eventually they began tracking responses to violent crime and drug offenses as well. 

Stop Crime SF’s approach gained a powerful ally when Brooke Jenkins was appointed DA by Mayor London Breed to replace Boudin. Before her appointment, Jenkins was paid over $150,000 to consult for Neighbors for a Better San Francisco, a group that heavily supported the recall effort and has also backed Stop Crime SF. 

Jenkins promptly clashed with local judges. When she said she would prosecute some 16 and 17 year olds as adults, the lowest age state law would allow, a veteran judge, J. Anthony Kline, refused to send any young people into the adult court system. In response, Jenkins’ office began blanket-challenging him, which effectively removed Kline’s entire case load. Jenkins also told ABC that “judges are refusing to make sure that these individuals stay in custody, and that has to change.” At a town hall in the summer of 2023, the DA excoriated local judges for releasing defendants with multiple drug offenses pre-trial, rather than keeping them locked up. 

Zecher, one of the candidates endorsed by Stop Crime Action, told the San Francisco Chronicle that he was inspired to run by a comment Jenkins made urging challenges to sitting judges. Zecher, a corporate lawyer on the board of UC Law San Francisco, did not agree to a request for an interview for this article.

Boudin believes his successor has been “scapegoating” judges to deflect from her own responsibility, also pointing to Breed, an ally of Jenkins who last year vociferously criticized a federal judge for upholding a ban on of homeless encampments as long as the city lacks sufficient shelter beds. “They both leaned so heavily into the doom-loop, fearmongering approach to defining San Francisco as a way to get me out of office, and now they own the problems and the perceptions,” he told Bolts. “They can’t shake it and so they’re looking for someone else to blame.”

Breed, who like Jenkins is up for reelection in November, is also championing a wide-ranging ballot measure on March 5, Proposition E, that would expand the powers of the local police; Stop Crime Action has endorsed it. Another measure, Proposition B, would increase the size of the police force, but only if the city creates new taxes to pay for it, a condition that troubles police advocates; one of its chief opponents, Axios reports, sits on the board of Stop Crime SF.

Over the last year, Stop Crime SF’s courtwatching program, and its accusations that the local bench is fostering crime, have morphed into an effort to outright remove two local judges whom the group says exemplify this behavior. Noto wrote in the organization’s newsletter in November that Begert and Thompson “have a demonstrated track record of releasing serious and dangerous offenders back into the public.”

Begert presides over several of San Francisco’s collaborative courts, where judges either try to formulate a treatment plan for people who are jailed, or get people into services as an alternative to incarceration. He also oversees San Francisco’s CARE court, where people close to someone with substance abuse or mental health issues can petition the court to mandate treatment—a program that has also proved controversial on the left because of concerns around civil rights.

Begert told Bolts in an interview that he believes he is being targeted because of his work on the collaborative courts, alleging that his critics are pursuing an agenda that’s single-mindedly punitive.

“Why me?” he asked. “Because I’m running these treatment courts, and these treatment courts are built on trying to address the underlying causes of criminal behavior, to increase public safety by reducing future conduct. And if your primary motivation is to impose punishments on people, or to accomplish what we call in legal philosophy retribution—that’s not furthering your objectives.”

Noto rejects the notion that he’s politicizing the judiciary. He says his group is largely looking to promote transparency, and that its decisions about which judges to target stem from external feedback.

In the lead-up to the 2024 elections, Stop Crime Action released what it called a judicial “report card” that rated judges whose terms end in 2024, and gave both Begert and Thompson (and no one else) failing grades. According to The San Francisco Standard, the group drew on cases that were tracked by courtwatchers and a variety of other factors, including a survey the group sent out to local trial attorneys. 

But the group only received roughly 25 answers—most of them, perhaps unsurprisingly, from prosecutors rather than judges and defense lawyers. Mission Local reported that the group misrepresented a single person’s assessment in a way that implied numerous negative reviews. 

“I have no objection to engaging with the public and having people see what we do,” Begert told Bolts. “I think we should have more of that. My objection is to coming into the project with a political agenda.”

The other targeted judge, Patrick Thompson, handles preliminary hearings; he evaluates evidence to determine whether the case will continue to trial. Much of the criticism against him in the Stop Crime Action report card centers on cases where he released defendants with past convictions on their own recognizance pending their trial. 

The San Francisco Chronicle found this month that, in a number of the cases, Thompson’s decision to release received no objection from the prosecutor on the case, meaning that all parties agreed the defendant should be released pending trial. Lara Bazelon, a law professor who advocates for criminal justice reforms in San Francisco, says pretrial detention is legally considered a final course of action. “It’s the resort only after every other less restrictive alternative has been considered and rejected,” she said. “And that’s because when you lock someone up pretrial, you’re taking someone that is presumed innocent, and taking away their freedom for weeks or months or even years at a time.”

Thompson did not respond to a request for an interview, nor did his opponent Roland, who currently works as a prosecutor in Jenkins’s office. 

The San Francisco Bar Association, the more traditional rating system for local judges, rates each of Thompson and Begert as “well-qualified.” Zecher and Roland received no ratings from the bar association because they declined to participate in the process, an unusual decision.

The president of the association told KQED in December that she’s worried about attacks on “the independence of the judiciary.” Boudin echoed that concern, telling Bolts that judges are constrained in how they can defend themselves; he pointed to state rules known as the judicial canons that prohibit judges from talking about the cases in front of them. “Unsurprisingly, they’ve chosen people who are uniquely vulnerable,” he said. 

Courtwatchers on the left view judges as too prone to detain defendants pretrial and throw the book at them—even beyond what the law requires. Stop Crime SF, meanwhile, sends its members into courtrooms to observe criminal cases with a form asking them to rate whether “defendants were held accountable for their actions by the court.” The form defines accountability, among other things, as whether a judge sets money bail and ultimately sentences someone at—or beyond—sentencing guidelines. 

Progressive courtwatchers elsewhere have taken note of the effort in San Francisco. And while their goals differ significantly, some say they support more scrutiny on the courts on principle, since they believe courts’ opacity to the public has produced harmful results overall.

Courtwatch LA also has a website, Rate My Judge, where community members and lawyers can weigh in on their experience in court. A lot of the negative reviews center on judges’ treatment of the people in their court, but some are outcome-focused, too—one judge’s page has several comments alleging that he categorically denies resentencing petitions. They also plan to challenge judges in the future, though they would not consider a score statistically significant until it was composed of at least 45 reviews.

“I think it is something the left has to sort out or at least accept as inevitably a two way street,” said Bazelon. “Courts are open to the public. There’s nothing unlawful or untoward about going and observing what happens in court. And I don’t think it should come as any surprise that it’s going to be a tool that both sides are going to use.”

The Los Angeles organizers tend to also distrust the assessments by professional groups like the bar association, arguing that while they’re purportedly neutral, they’re biased against candidates of color and women, and against lawyers opposed to the status quo. They say their approach brings in a different, necessary perspective.

“At the end of the day, it is a community tool,” said Titilayọ Rasaki, policy and campaigns strategist for La Defensa, the Los Angeles organization that runs Courtwatch LA. “I think it’s just a question of who’s in and who’s out in your community.” She noted that many of Courtwatch LA’s volunteers have had past contact with the criminal legal system. For these people, she said, “it’s a kind of reclamation, or a way of shifting your relationship to the criminal legal system that has probably impacted your life in vastly different ways.”

Rasaki and her colleague Gabriela Vázquez, deputy director of La Defensa, told me that they weren’t threatened by Stop Crime SF’s use of a similar playbook. In their eyes, the problem with what’s happening in San Francisco is not that incumbent judges face scrutiny or opponents; it’s the “scare tactics” employed against them. “If we have a drug overdose epidemic, the easy way out is just criminalizing people, or attacking judges,” Vázquez said. “What we’re seeing in the Bay Area is that they’re trying to take the easy way out and find scapegoats.”

Still, Rasaki said she welcomes anyone to courtwatch. If they feel comfortable with how poorly people are treated and how easily they’re incarcerated, she said, “that’s a value judgment for them… We can disagree and we can use different organizing strategies and the ballot box, I guess—this is where we’re duking it out. It’s a contention of ideals.” 

“If it gets more people in the courts, if it gets more discourse about what it is that the courts are up to, and whether or not they’re meeting the needs of our society—that’s a conversation I’m really trying to start,” she said.

The post In Pursuit of Harsher Punishments, San Francisco Courtwatchers Target Judges appeared first on Bolts.

Most obviously, these courts have become an urgent route for liberal litigants in light of conservatives’ durable majority on the U.S. Supreme Court. State courts get to interpret state constitutions, which often protect rights and liberties more expansively than the U.S. Constitution, and they’ve proven friendly to arguments that wouldn’t succeed in federal court. The right has also focused on them to expand its control over the judiciary.

But these courts have even more clout than you may realize. They can shape virtually any policy area that state and local governments touch. They’re likely to have the final word on all cases filed in state courts, and many play additional roles that extend far beyond deciding cases, from crafting the rules of criminal trials to taking part in redistricting and certifying elections.

And yet these courts’ exact powers and procedures often remain well under the radar. What justices do and how they’re selected varies widely from state to state, and it always differs from the federal system. Most states elect justices but have their own twist on electoral rules, while some courts are shaped by commissions largely out of public view—and nearly all serve some idiosyncratic function with little scrutiny. These distinctions all influence how each court acts and what might be levers of change.

Today Bolts is publishing a new state-by-state resource that plunges into the weeds of these critical judicial powers. For each of 54 courts—accounting for the highest court in all 50 states, two of which have two separate high courts, plus Puerto Rico and D.C.—we cover every nook and cranny of how they are organized, what functions they serve, and rules for judicial selection.

But here we also wanted to take a step back. Why should we care about state supreme courts? What types of cases do they even hear? And what do we know about the balance of power between liberals and conservatives foothold on these courts across the country? Below is our FAQ to answer your big questions on state supreme courts.

I follow the U.S. Supreme Court: Why also care about state supreme courts?

If state and local governments have any involvement in an issue, you can bet that state supreme courts shape public policy on it. Why is abortion more widely available in this state than in neighboring ones? Why are police officers harder to prosecute in one jurisdiction over another? Why does this state better protect the rights of employees or access to mail-in ballots? The answer often has to do with how legal cases were resolved by state supreme courts, and who was sitting on them when they did.

In fact, many cases begin and end in state court, and never interact with federal judges. That includes countless civil lawsuits, and the vast majority of criminal prosecutions. These cases are heard within each state’s separate judicial system, and then work their way to the top state court that has supreme authority over their outcomes.

That’s how state supreme courts end up with the final word on critical cases—whether a lawsuit against South Carolina’s abortion restrictions, the appeal of a death sentence in Florida, or the legal battle over Illinois pensions. Some of these high courts also have idiosyncratic roles such as drafting bail schedules or approving pardons, and they can shape the rest of the judicial branch: That’s information that Bolts’ new state-by-state resource supplies.

Why would a case end up in state courts instead of federal court?

By-and-large, federal cases involve allegations that something or someone violated federal laws or the U.S. Constitution, or involve large financial amounts, inter-state disputes, or federal agencies. 

Everything else is likely to end up in state court, and possibly escalate to a state supreme court. 

These can be civil cases—you can bring a lawsuit in state court, especially if you’re invoking your state’s laws or your state’s constitution—or they can be criminal cases. Every state has its own criminal laws, and local prosecutors can charge people for breaking them in state courts; and if you’re convicted of a crime, you can appeal all the way to your state’s high court. 

What’s the role of state constitutions?

The rights inscribed in the U.S. Constitution only set a floor. Each state has a constitution that may have different language or protect rights that the U.S. Constitution doesn’t, at least if a state supreme court interprets it that way. How receptive a given court will be to such arguments, of course, will depend on its membership.

For instance, the U.S. Constitution’s prohibition on “cruel and unusual” punishments is mirrored in many state constitutions, with some even banning “cruel or unusual” punishments, a grammatical tweak that may justify more expansive protections. And in each state, the supreme court will effectively have the final word on what exactly those clauses forbid.

In light of federal courts’ sharp turn to the right, many progressive and civil rights groups have prioritized filing state lawsuits by crafting arguments that rely on their own state’s constitution. They may argue, for instance, that its language enjoins climate action or protects reproductive rights.

But can’t the U.S. Supreme Court step in regardless? 

Yes, if you’re unhappy with how your state supreme court decided your case, you typically can appeal to the U.S. Supreme Court. But that court hears very few cases. It’s also extraordinarily unlikely to consider a case that involves a state supreme court interpreting its own state’s constitution or statutes.

In practice, state supreme courts have the final word on what rights their state constitutions provide, and on nearly all cases and lawsuits that work their way through the state court systems. 

So what do these state supreme courts do, day-to-day?

Their primary role is to review decisions made by lower courts. Every state has its own judicial pyramid, like the federal system: there are trial courts, typically appeals courts, and a supreme court at the top. (There are variations on this structure; most notably, Oklahoma and Texas have separate high courts for criminal and civil matters.)

State supreme court justices decide whether to take up a case for review. 

But these courts also serve many other functions. Most are responsible for supervising the operations of their state’s entire judicial branch, putting them in charge of vast bureaucracies. They appoint people to key spots, and decide on rules that everyone else must follow, from attorneys to lower-court judges. In many states they also write the detailed procedures that govern any criminal case, including major matters like how bail or sentences are calculated.

Some courts have even more direct powers. In Arizona, justices witness election certification. In Nevada, they sit on the pardon board. In Tennessee, they appoint the attorney general.

Our state-by-state database highlights these unique powers for every high court, including the role each plays in crafting the rules of criminal procedures, and in various tasks relating to elections.

How do states decide who sits on their supreme courts? 

Every state sets its own rules for how justices are selected and how they remain on the court, and no two states do it exactly the same—and none do it exactly like the U.S. Supreme Court.

One rare trait that unites nearly all states is that justices serve set terms. They are on their court for defined periods of time and then must seek a new term. Only in Rhode Island do they serve for life with no age restrictions, like they do on the U.S. Supreme Court. 

This alone makes the membership of state courts far more fluid than the U.S. Supreme Court’s. To top it off, some states even impose a mandatory retirement age, often between 70 and 75. 

Otherwise, state systems differ a great deal. Broadly speaking, they fall into two big buckets as to how justices make it on the court.

Some states elect their justices from the get-go. People not yet on the court can run for a seat, and incumbents who want new terms may face challengers. States like North Carolina and Wisconsin, for instance, consistently have heated judicial elections. 

In other states like Indiana and Vermont, justices are always first appointed onto the court, typically by a governor. But these states vary on whether an appointed justice faces elections once they’re on the court. In many states, justices must face retention elections at the end of their term—up-or-down elections in which voters decide whether an incumbent can stay on the court. 

States also vary on how much latitude governors have when they select a justice: Some governors are free to choose anyone without even worrying about legislative confirmation. Governors making high court appointments in other states, like Missouri, are much more constrained and must choose from a shortlist preselected by a nominating commission over which they may have little control. And in Virginia and South Carolina, supreme court appointments are made by lawmakers with little involvement from the governor.

In practice, though, the difference between elections and appointments can get very blurry. 

Take Minnesota and Georgia, which have regular judicial elections but nearly all sitting justices first made it onto the court through an appointment. That’s because justices often resign before their term is over, letting governors select a replacement with little constraint. Once appointed, these incumbents rarely face any opposition when they run for a full term. 

Does my state have elections? 

Thirty-one states organize some sort of elections for supreme court justices. 

In some states, justices only face voters once they’ve already been on the court for a few years, and only in the form of retention elections—no named challengers, just a yes-or-no vote on whether they should stay on the court.

Other states organize regular elections for all judicial seats: Every few years, any candidate who meets the qualifications to be a judge can run for a seat whether or not there’s an incumbent, and the winner joins the court. That sounds simple enough, but each state comes with some twist. Elections may be held at odd times, they may be canceled at the drop of a hat, and they may be governed by unusual rules that don’t apply to the state’s more prominent elections. 

To complicate matters further, states may also mix up these models, using either regular or retention rules depending on the circumstances. 

Are judges partisan or political officials?

Only nine states elect judges in partisan elections. Candidates there may file to run as a Democrat or Republican. 

Still, in states that hold nonpartisan elections, parties and groups that support a political cause frequently get involved. Elections in Wisconsin are ostensibly nonpartisan, for instance, but are also very polarized. Other states with nonpartisan systems have sleepier elections. 

Similarly, in states where justices are appointed, party affiliation is not a formal factor in the process, but the political leanings of prospective appointees are often a factor on the decisions of the governors or lawmakers who make the selection—much like in the federal system.

That may be true even in states that constrain a governor to a list preselected by a nominating commission made up of legal professionals—a process that is meant to be more meritocratic but does not eliminate political considerations. The shortlist may present various options that preserve a governor’s ability to shape the court’s direction, and some commissions also have an ideological bent. There’s often backdoor maneuvering about who sits on them, with governors or legislative leaders shaping their  membership. Florida’s commission, for instance, has helped Governor Ron DeSantis move the state’s high court to the right, while New York’s has faced scrutiny for leaving jurists of color off of nominating lists. In Iowa, the GOP recently changed its commission to give the governor more control over who sits on the commission.

Can you tell me which party, or which ideological side, controls which court?

This is a difficult question. Only 12 high courts explicitly integrate justices’ party affiliation into their selection. That’s usually because the justices are elected in partisan elections, but it may also be because there’s a formal requirement (Delaware) or informal convention (New Jersey) that there be some partisan balance on the court.

In those states, it’s at least possible to say which party holds a majority of the court.

As of today, 6 of these courts have a Republican majority and 6 have a Democratic majority. (Two of those Republican majorities are in Texas, which is a rare state with two high courts.)

But judicial philosophies do not always map onto judges’ partisan affiliation.

Inversely, courts that are technically nonpartisan may have a strong ideological lean. They may have a coherent majority that constantly favors liberals or conservatives, or justices whose careers demonstrate a strong affiliation to a political cause. In Arkansas, for instance, a majority of supreme court justices now have ties with the Republican Party after Governor Huckabee Sanders appointed the chair of the state GOP to the court this summer. Wisconsin’s court flipped from a conservative majority to a liberal one as a consequence of the 2023 elections. New York’s conservative-leaning court took a step to the left this spring after a heated battle in which progressive groups fought the governor’s initial nomination. 

Assessing a court’s politics may then entail identifying other proxies for judicial ideology. In states with judicial appointments, we can start by assessing the party of the governors who selected the justices. In Minnesota, for instance, all justices as of now have been appointed by a Democrat, while in Arizona they’ve all been appointed by a Republican. 

This is a reliable predictor in some states—but it can be an imperfect proxy in others since some governors must get their choices approved by the legislature, or are constrained to choosing from a commission’s shortlist. Then again, governors can try to craft these commissions to their liking to gain more influence over the process, frequently far out of view of the general public.

The devil is in the details, which is why Bolts’ state-by-state database lays out more information on each court’s process.

How do state supreme courts affect a specific issue I care about?

On any issue, lawsuits may put a state’s statutes and practices under court scrutiny, at which point it comes down to what’s written in the state’s constitution and laws—and who has the power to interpret them. Many courts also have rulemaking powers that give them the ability to upend some matters even more directly. Here are some examples of what to watch on just six key issues.

If you care about abortion rights: The U.S. Supreme Court overturned Roe v. Wade in 2022, but state supreme courts can interpret their own constitution as recognizing a right to abortion. A Bolts analysis found that a dozen had done so by the time of the Dobbs ruling, and more since. But conservative gains can undo these rulings. In 2018, Iowa’s supreme court ruled that the Iowa constitution guarantees a right to abortion but then reversed itself in 2022 after the arrival of new conservative justices. 

If you care about criminal justice: State courts shape the rights of people accused of crimes at every stage of a criminal case, and some courts have pushed back more than others against invasive police practices or extreme sentences. Many supreme courts also write their state’s rules of criminal procedure—lengthy codes that govern how cases unfold, from the issuance of warrants to the calculation of sentences. Some courts even set bail schedules. This is an often-overlooked but potent policymaking role. In 2021, for instance, Arizona’s supreme court eliminated peremptory strikes, the practice by which attorneys can eliminate someone from the jury pool without stating a cause. Explore our state-by-state guide to learn the extent of each court’s rulemaking role with regards to criminal procedure; the guide also specifies for each court whether a court is involved in drafting sentencing guidelines and setting bail schedules.

If you care about LGBT rights: Some state constitutions provide greater protections for individual rights than the U.S. Constitution, and LGBT activists have turned to state courts when federal courts have been unwilling to affirm certain rights. In 2003, Massachusetts’ supreme court recognized marriage equality, setting off a wave of supreme courts that did the same before the U.S. Supreme Court legalized same-sex marriage nationally. And as states are now passing new anti-trans legislation, state advocates are again turning to state courts.

If you care about education: Many state constitutions contain provisions that state courts have interpreted as creating a right to education, and activists have argued in court since the 1970s that unequally or inadequately funding schools is unconstitutional.

If you care about the environment: As the climate crisis rages on, the regulatory power of environmental agencies often hinges on decisions by state supreme courts. Plaintiffs have also invoked environmental rights to push for climate action, with some success; Hawaii’s supreme courts, for instance, recently affirmed a robust interpretation of such rights in its state constitution, and a case in Montana that involves a right to a “healthful environment” could soon make its way to that state’s supreme court.

If you care about how elections are run: The shape of democracy can hinge on the composition of state supreme courts, which play a crucial role in blessing or rejecting voter suppression. Lawsuits are constantly filed in state courts challenging election law and practices, anything from voting procedures and gerrymandered maps to legislation restricting access to mail ballots. A change in the court’s membership can lead to major changes in election law, as in North Carolina this year. And some supreme courts are tasked with more direct roles in the running of elections, like supervising the drawing of new maps or participating in the certification of election results.

For more information, explore our state-by-state guide to how each state’s high court.

The post Everything You Always Wanted to Know About State Supreme Courts appeared first on Bolts.

Associate Judge Rowan Wilson, a progressive jurist who is already a member of the court, will replace DiFiore as Chief Judge. Caitlin Halligan, a well-known private lawyer who served as New York’s solicitor general in the 2000s, will take Willson’s seat as associate judge.

Liberals hope that these changes push the court to the left. Over the past several years, they’ve watched with frustration as a bloc of four judges, enough for a majority on this seven-person court, consistently sided with corporations, police, and prosecutors, leaving progressives like Wilson to write dissents in cases that tested matters’ like workers’ ability to seek damages or law enforcement’s power to conduct warrantless searches. 

Now Wilson, the state’s first Black chief judge, will enjoy new prerogatives to shape the state’s vast judicial branch to his liking—a chief judge has influence over the rules for other courts and authority to appoint people to key positions like the Commission on Judicial Nominations—and progressives have vocally celebrated his promotion ever since Hochul announced it last month. 

“Rowan Wilson, at least in his opinions, has signaled that he’s really attuned to the needs of the most vulnerable New Yorkers,” said Noah Rosenblum, a law professor at NYU Law. “There are reasons to anticipate that he will use his powers as chief judge to try to make the administrative machinery of New York courts more responsive to those values.”

But when it comes to the raw math on upcoming rulings, it’s Halligan who matters. Hers will be the new vote with the power to flip outcomes when she votes differently than DiFiore would have. And even if she does end the conservative bloc’s predictable control of the court, how consistently she sides with its liberal members is a separate question; besides Halligan, the court presently has three more right-leaning members, two judges who typically lean left (including Wilson), and one who is often a swing vote. 

How exactly Halligan reshapes this intricate balance remains to be seen, in part due to a legal question that surrounds her nomination, and also due to her career being something of an ideological Rorschach test for court observers.

When I told Rosenblum I was setting out to ascertain how her nomination may affect the court’s future cases, he quipped, “I don’t envy you.”

Just three months ago, the landscape in the state Senate looked dramatically different. Progressive groups in December rallied against Hector LaSalle, Hochul’s first choice to replace DiFiore. Within days of Hochul’s announcement, reproductive rights organizations, unions, and criminal justice reform advocates denounced LaSalle’s past rulings on abortion, defendants’ rights, and labor. Half-a-dozen Democratic senators said they opposed him within a day; and in January, most of the Democratic caucus voted against him when the state Senate rejected him.

No such tumult greeted Halligan. Her confirmation process was comparatively very quiet, and her confirmation this week was backed by nearly all Democratic senators. (Many Republicans opposed it.) 

It’s not that progressives rallied behind her enthusiastically. When I asked LaSalle’s critics about Halligan, they often began by offering lengthy praise for Wilson, whom Hochul announced on the same day as something like a two-judge deal. In a statement this week, Senator Jessica Ramos, who had quickly opposed LaSalle from the left in December, said she was “choosing to be hopeful” that Halligan would align with Wilson’s wing of the court. So what drove the left’s widespread attitude of guarded support?

Whereas DiFiore was a former Republican politician (though she was selected for the bench by Democratic Governor Andrew Cuomo), Halligan has long been associated with Democratic or liberal legal circles. A former clerk of U.S. Supreme Court Justice Stephen Breyer, Halligan was nominated by then-President Barack Obama in 2011 to one of the nation’s most prestigious federal courts, the D.C. Circuit. But she faced a yearslong blockade by U.S. Senate Republicans, who filibustered her on nearly-perfect party line votes. 

In the absence of many other signposts, this background has served as a sort of proxy this month for Halligan’s judicial politics. It has fueled an expectation, which I heard from a number of state sources this month, that she’ll pave the way for the court to issue more liberal rulings.

“The Obama administration thought she was liberal enough,” said Vincent Bonventre, a professor at Albany Law School who studies the New York Court of Appeals, adding that Obama’s nominees to the nation’s highest courts did tend to lean left. “So you would think that the vetting has already been done.” 

Still, some of the same groups that successfully fought LaSalle expressed caution toward Halligan. As a longtime private lawyer, Halligan has taken on many cases on behalf of corporate clients, and progressive organizations raised concerns about a number of them in recent weeks. 

While working at a law firm last decade, Halligan represented Chevron when the oil company targeted human rights lawyer Steven Donziger with a racketeering lawsuit, after Donziger helped secure billions in damages due to Chevron’s polluting activities in the Amazon rainforest. 

In 2014, Halligan represented UPS in a high-profile case, heard by the U.S. Supreme Court, in which she argued that the Pregnancy Discrimination Act does not require corporations to make accommodations for pregnancy. (The court mostly ruled in favor of Penny Young, the plaintiff.) Halligan’s work on behalf of UPS drew criticism well before her nomination to New York’s high court. The legal publication The Flaw focused on Halligan’s work in Young vs. UPS in January as part of a broad jeremiad against Big Law, to make the case that attorneys who work on behalf of corporate clients should be accountable for “fueling inequality.”

After DiFiore’s resignation, prominent senators and progressive groups had urged Hochul to choose a public interest attorney or public defender to add professional diversity to the court, which mostly includes former corporate lawyers and prosecutors. (Halligan also worked as general counsel for the Manhattan DA’s office.)

One of these organizations, the Center for Community Alternatives, urged New York lawmakers to question Halligan about the “troubling” cases on which she has worked as a private attorney, while also acknowledging that her “contradictory record” contains cases where she defended more liberal positions. The New York Immigration Coalition on Wednesday called Halligan’s nomination “concerning” due to her “controversial record as a corporate attorney.”

The only Democrat who voted against Halligan on Wednesday was Jabari Brisport, a member of Democratic Socialists of America. Brisport did not reply to a request for comment.

Halligan has replied to these criticisms by distancing herself from the content of the claims she has made on behalf of her clients. These should not be taken as an indication of her own values, she has said, or of the outcomes she would prefer to see.

“In whatever capacity I represented a client, I’ve done my best to bring to the court whatever arguments there are on that client’s behalf,” Halligan said at her confirmation hearing on Tuesday.

She did not respond to a request for an interview for this story.

Halligan made the same point a decade ago, when she faced recriminations from the other direction by U.S. Senate Republicans for defending liberal policies while solicitor general in New York. The GOP zeroed in on legal work she had conducted on behalf of New York’s effort to hold gun manufacturers accountable for gun violence, calling her an “activist.”

Halligan’s allies responded at the time by describing her as a moderate. They played up other work she did in that role that was more likely to appeal to GOP senators, such as a memo she issued in March 2004 advising local officials to not issue marriage licenses to same-sex couples, effectively shutting down a mayor in Ulster County who days earlier had done just that, at a time where a few local officials were sticking their neck out for same-sex marriage. They also insisted that, in cases like her work against gun manufacturers, she was merely doing her job: representing the interests of her client, which in that case was New York State. 

Since much of Halligan’s legal career has involved such work, though, putting all that to the side would leave few tea leaves in which to decipher her judicial philosophy. 

It also raises the question of what would even count as a tea leaf at all. At a time when judges and courts’ ability to set huge swaths of policy is so transparent, what are lawmakers and the public supposed to evaluate as indications of how Halligan will approach her new role?

“We don’t have a ton of information that we can evaluate that reflect her own particular political or jurisprudential belief, and that presents a genuine puzzle,” Rosenblum said, while adding that the information we do have—including her selection by what he called federal Democrats’ “judicial nominating machine”—is consistent with a cautiously liberal jurisprudence.

“It’s very difficult to predict what kind of Judge Halligan will be,” Peter Martin, director of judicial accountability at the Center for Community Alternatives, told me on Wednesday. “She has spent her entire career as an advocate, and she has written close to nothing that wasn’t on behalf of a client, meaning her personal values and understanding of the law are obscured.” 

Sam Bagenstos, a law professor at the University of Michigan, was the lawyer who represented Penny Young in her case against UPS nine years ago. Despite their work on opposite sides of that case, he cheered Halligan’s nomination earlier this month.

“I’ve known Caitlin for more than 25 years and, based on many experiences with her over that time, am convinced she’ll be a progressive judge,” he told me. (Bagenstos, who currently works as the general counsel for the U.S. Department of Health and Human Services, insisted that he was talking in his personal capacity.) “Obviously, nobody can doubt her legal brilliance.”

Asked for what specifically he would point to as a public indication of this disposition, Bagenstos pointed to Halligan’s pro bono work on behalf of New York tenants, defending the constitutionality of rent stabilization against landlord groups. (One of New York’s most left-wing senators pointed to the same case this week to explain why she backed Halligan’s nomination.) 

On its face, this case is similar to the others: Halligan was working on behalf of her clients.

But Halligan said this week that her pro bono cases can offer unique insight into her values. They are all, after all, work she is choosing to do for free. Such cases, Halligan told a legal publication in 2019, “allow the [law] firm to engage in a meaningful way with matters of true public interest.” Other pro bono work from Halligan’s includes writing briefs in defense of the Affordable Care Act or representing employees with labor recriminations against Amazon. 

“Halligan argued in her confirmation hearing that her pro bono work best illustrates the legal outcomes she personally supports,” Martin said. “We’ll find out soon enough if she was telling the truth when she said that.” 

The biggest controversy that has greeted Halligan’s nomination does not concern her record. It’s about whether it was legal of Hochul to appoint her when she did.

In New York, governors choose judges out of it on a short list presented to them by a state nominating commission. Wilson and Halligan both featured on the list prepared by the commission to fill the vacancy created by DiFiore’s resignation; but technically, Hochul selected Halligan to fill a still-hypothetical vacancy, the one that would be left by Wilson once the Senate confirmed him as chief justice. Republicans and some legal scholars argued this is unconstitutional and that Wilson’s confirmation should trigger a new vacancy and a new shortlist before Hochul can fill it. State Democrats replied by passing a law that specified that Hochul was authorized to do this; they did so after Hochul announced her nominations. 

Heading into Halligan’s confirmation hearings this week, Republicans threatened to sue to block Halligan from joining the court. But The Times Union reported on Wednesday that the GOP did not file a lawsuit before Wednesday’s vote, and that it was unknown whether they could and would still do it in the future.

Hochul’s dual move sped up the process by months, and its apparent success brings the Court of Appeals back to full capacity for the first time since July. 

Bonventre, for one, expects the combination of Wilson’s promotion and Halligan’s arrival to make a significant political difference. 

“The court in recent years has been much more conservative than in the past,” he said. “I don’t think it will become a left-wing court, but will this court be more sympathetic to the rights of the accused? I think unquestionably. Workers’ rights? Unquestionably. Consumer rights? Unquestionably. The rights of people who’ve been harmed by others? Unquestionably.”

But the highest-profile case that awaits Halligan does not fit into these categories. It’s Hochul and other New York Democrats’ recent plea in state court to have another shot at drawing the state’s political maps. Last year, the Court of Appeals struck down Democrats’ gerrymanders in a 4-3 ruling, with DiFiore in the majority and Wilson in dissent, and ordered a trial court to draw remedial maps; this greatly helped Republicans in the midterms. If Halligan approached the issue differently than DiFiore and authorized a second bite at the redistricting apple, it may swing several U.S. House seats in 2024—and it could also affect control of Congress.

With that case still on the horizon, Democratic state senators this week celebrated Halligan for joining the court. “I’m sure the court can become the best appellate court in the nation with her on the bench,” Brad Hoylman-Sigal, who chairs the Judiciary committee, said on the floor. 

It’s become a core tenet of present-day progressive legal advocacy that state appellate courts could provide an antidote to the breathtaking conservative takeover of the federal bench. That view took off during the Trump presidency but has intensified since the Dobbs ruling in June.

Halligan signaled this week that she agreed with that notion, in what may have been her strongest hint of how she’d approach her new position.

“State courts are where the issues that are most important to the day-to-day lives of New Yorkers get decided,” Halligan told the Judiciary Committee during her confirmation hearing. “And it is where the scope of the New York constitution gets hammered out, a task that is especially important at a moment when federal courts appear to be pulling back on some key constitutional protections.”

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In 2018, Kahan joined Crime Stoppers of Houston, a nonprofit organization that since 1980 has sponsored an anonymous tip line that paid out rewards of up to $5,000 for information that helped solve cases. Soon after Kahan joined, Crime Stoppers took a more aggressive stance and began targeting a new crop of Democratic, reform-minded judges, eventually blaming them for a 2020 spike in murders that was seen across the country. Kahan even started co-hosting a regular segment with the local Fox affiliate called “Breaking Bond” to shame and blame individual judges for crimes committed by defendants out on bail. 

Kahan may soon gain more power to go after Texas judges. Governor Greg Abbott nominated him last month as a “citizen member” to the state’s commission on judicial conduct, an oversight body that hears complaints about local judges and whose recommendations can lead to sanctions or even suspension. 

Kahan acknowledged that his nomination might be controversial in a social media post celebrating the news last month, writing, “I get that ‘some naysayers’ are none too happy about this but I’ve always adhered to the philosophy that when you advocate on behalf of one faction, you generally infuriate the other faction.” 

Some Houston lawyers questioned whether Kahan could fairly field complaints against judges given his track record of going after them. 

“If you’re in my shoes and you’ve watched this guy sit here and unfairly scapegoat judges for following the law for the past few years, and all of a sudden you’re moving him to a position where he could literally have the ability to influence whether or not good and fair judges keep being judges, that becomes terrifying,” said Murray Newman, the incoming president of the Harris County Criminal Lawyers Association. 

Asked by Bolts whether he would bow out of cases that involve judges that he has campaigned against or criticized, Kahan said the commission has a recusal process that he will abide by “if a conflict of interest is determined on a case by case scenario.”

Kahan’s nomination, which is subject to confirmation by the GOP-run state Senate, highlights an increasingly harsh approach to the criminal legal system under Abbott. The governor and other state Republicans have dialed up crackdowns on local officials who have proposed reforms like detaining fewer people in jail pretrial or reducing the scale of prosecutions. In 2021, the governor successfully pushed the Texas legislature to pass a law setting limits on judges’ ability to reduce bail. This year, after years of attacking local Democratic prosecutors’ decisions to downplay charges for certain low-level offenses, Republicans have introduced legislation to circumvent or preempt the authority of local DAs. 

Abbott is also likely to push for new bail legislation as state lawmakers convene this month; Kahan, who supported Abbott’s bail bill last session, has joined police and prosecutors in urging lawmakers to initiate a process to amend the state’s constitution to allow judges to deny bail in more cases, which Abbott prioritized last legislative session. 

Krishnaveni Gundu, co-founder and executive director of the Texas Jail Project, which monitors conditions in local jails and advocates for better conditions, said Kahan’s nomination captures Abbott’s punitive approach to pretrial policy. “It’s clear that the governor has no interest in meaningful bail reform,” Gundu told Bolts. “Meanwhile people with mental illness and disabilities are dying in overcrowded jails while being detained pretrial.”  

Kahan has become a celebrity of sorts among Texas Republicans and other tough-on-crime politicians for helping fuel the backlash to landmark bail reforms that Harris County judges implemented in recent years to reduce the number of poor people stuck in jail on low-level charges. A Democratic sweep in the 2018 midterms shook up the Harris County judiciary and added some judges who sided with civil rights organizations that were suing the county over its bail system. Those new judges agreed to settle the lawsuit and implement changes to reduce the number of people in jail over a misdemeanor charge, as well as pushing for other reforms like no longer jailing defendants for being late to court or testing positive for marijuana. 

While Kahan has in the past voiced support for those changes, on TV he often insinuates that those reforms have led to more crime—despite years of reports and studies showing Harris County’s misdemeanor bail reforms have improved public safety. 

“If we sit back in silence, we’re just as guilty as those who are actually promoting this type of criminal justice reform or collateral damage that we’re seeing from this,” Kahan said in a video that Crime Stoppers posted to Facebook last year responding to criticism that the organization had become too active in judicial elections.

While barred from participating in political campaigns, the nonprofit Kahan works for depends on financial support from politicians like Abbott. An investigation last year by the Marshall Project and the New York Times showed that Crime Stoppers of Houston, the largest nonprofit of its kind in the country, has received millions of dollars in grants from Abbott’s office, which helped it weather financial stress in recent years. The investigation also revealed that the changes implemented by many of the Democratic judges that Crime Stoppers and Kahan have publicly criticized have hurt the organization’s bottom line; some local judges are no longer making defendants pay a $50 fee that had once contributed to a large part of its budget. (It’s common around the country for courts to require defendants to pay fees to private organizations.) 

Harris County District Attorney Kim Ogg, a conservative Democrat who ran Crime Stoppers of Houston about a decade before Kahan joined and gave the group $500,000 in 2021, has not faced criticism by the organization or Kahan, even though some local lawyers blame her office for not making more formal requests to increase bonds. Ogg, like Crime Stoppers, has targeted judges who supported reforms in Harris County, and her office has filed complaints to the state judicial commission to which Kahan was just appointed.

Throughout 2020, Ogg’s top lieutenant, first assistant DA David Mitcham, filed several reports with the commission against Franklin Bynum, a former public defender and reform-minded judge elected to the bench in 2018 who has frequently clashed with Ogg. Mitcham complained that Bynum had released too many defendants, reduced too many sentences, and displayed “an unprofessional and irredeemable bias against the State of Texas and its prosecutors.” Elements of the complaints were personal and inflammatory: “His erratic behavior and demeanor have deteriorated to such an extent that he may be suffering from some sort of mental impairment of undetermined cause,” Mitcham wrote to the commission on Sept. 25, 2020. 

Ogg’s office attached to its complaint a photo of Bynum wearing a “Defund Chicago Police” T-shirt, which the Houston police union shared on social media. The judicial commission held a hearing about the complaints last April, a month after Bynum had already lost his primary election to a prosecutor in Ogg’s office. At the time, six of the commission’s 13 members were judges appointed by the all-Republican Texas Supreme Court, five were non-attorney “citizen members” appointed by Abbott, the Republican governor, and two were lawyers appointed by the state bar.

Members of the judicial commission lingered on the photo of Bynum in the “defund” shirt. “Violence in general has increased in the cities because the police have been maligned and degraded and disparaged, and violence against them has increased,” Janis Holt, an Abbott appointee and vice chair of the commission, told Bynum before saying her son is a cop. “When I see someone who wears ‘defund the police,’ it tells me that you don’t care about my son and his family and my granddaughter.” 

The judicial commission recommended in July that Bynum be suspended, and even though he left office anyway at the end of 2022, that recommendation is still pending before the state supreme court. Bynum, who is fielding yet another complaint filed against him by another judge on his way out of office, says he’s concerned about Kahan’s involvement in any of his future hearings. 

“I do remember once that he basically accused me of being responsible for murders in the county,” Bynum said, referring to Kahan’s statements while at Crime Stoppers. “I don’t think anybody who uses that kind of language with me should ever sit on a commission that’s deciding my fate professionally, and yet now I’m looking at a situation where I may not even have a way to challenge him doing that.” 

Kahan told Bolts that he has not made public comments about Bynum. “Not sure where he is coming from,” Kahan said.

Houston lawyers say Kahan, Ogg and Abbott are reacting to a local judiciary that has started to finally incorporate more than just career prosecutors. “Before, Andy wasn’t an advocate who really had a nemesis, because he liked the DA, he liked all the judges, because they were all former prosecutors and he didn’t really have a lot to complain about,” Newman told Bolts. “It’s just a much more defendant- and constitutional rights-friendly atmosphere now than it was in the 1990s and early 2000s.” 

Newman called Kahan’s selection for a watchdog role over judges an attempt “to turn back the clock.”

“Really, in a nutshell, we’ve got judges who are not soft on crime, they’re just fucking fair,” Newman said. “And the DA’s office is so used to having that extra prosecutor sitting on a bench in a robe that they think fairness is biased against them.” 

Ogg and Kahan both testified at the legislature in favor of the restrictions on pretrial releases that passed last year, and which appear to have compounded deadly and dehumanizing conditions inside local jails. The director of a state commission tasked with oversight of county lockups in Texas warned in a meeting last November that the rise in county jail populations across the state, from 62,000 jail inmates in October 2021 to 70,000 last October, “should be raising red flags for everyone.” More people experiencing homelessness and mental health episodes are now getting stuck in jail on low-level charges like criminal trespass, one sheriff testified at the meeting. 

Kahan has dismissed the notion that new restrictions are straining local jails that already struggled to meet the state’s baseline standards for treatment—including the Harris County lockup, which saw a record number of deaths last year. “Wow—what a disingenuous stretch to blame legislation meant to keep defendants charged with certain violent crimes from getting a get out of jail free card with the amount of deaths at the Harris County Jail,” he wrote on Facebook in reaction to local media coverage. The county’s top jail official resigned earlier this month as deaths, overcrowding and staffing problems continue to plague the lockup. 

“Andy Kahan has been a voice consistently disrupting the idea that people are innocent until proven guilty,” said Jay Jenkins, an attorney with the Texas Center for Justice and Equity, which has advocated for bail reform in Harris County. Jenkins co-authored a 2021 report documenting media bias and misinformation around bail reform in Houston, which cited rhetoric by Kahan. 

“The impact of publicly disseminating views that undermine confidence in the principle of innocent-til-proven-guilty is that you get a lot of people locked up for stuff that they didn’t do,” Jenkins told Bolts. “This notion that people are guilty upon arrest, which is now even more represented on the statewide judicial council, is also at the heart of our jail overcrowding issue,” 

Kahan isn’t the only noteworthy tough-on-crime persona Abbott recently appointed to a state commission tasked with oversight of the criminal legal system. Last summer, Abbott appointed Austin police officer Justin Berry to a state police commission following his indictment on charges of assaulting protesters during the demonstrations that followed George Floyd’s murder in 2020.  

Kahan’s appointment will be taken up by the Senate’s nominations committee, a body that typically does not hold Abbott’s appointees to hard scrutiny. The committee has yet to hold a hearing for Kahan as of publication. 

Last November, he appeared on a Houston TV show to discuss a 30-year-old murder that he said helped launch his career advocating for victims of violent crime. He had been working in the parole division of the Texas prison system in 1990 when a Houston police officer named James Irby was shot and killed during a traffic stop. After seeing news of the murder, Kahan said he pulled his department’s file on the suspect, Carl Buntion, and saw that Buntion had recently been released on parole after serving only 13 months of a 15-year prison sentence for sexual assault of a child. Kahan said the discovery spurred him to meet with the officer’s widow and help her advocate for fewer parole releases and more prisons to hold people. 

The tragedy helped drive media coverage that eventually bubbled into public outcry over prison releases, spurring Texas lawmakers to rewrite sentencing laws to require prisoners to serve more time and paving the way for the state’s dramatic prison buildup at the turn of the century. 

“You hate to say, but you know something positive did happen as a result of Jim’s death,” Kahan told a host for the Houston station KPRC last year, months after Buntion was executed for the murder. “It spurred a movement. It put me on the road to doing what I’m still doing some 30 odd years later.”

The article was updated on Jan. 27 with additional comment from Kahan.

The post A Texas ‘Crime Stopper’ Targeting Reform Judges Could Gain More Power Over Them appeared first on Bolts.

She chose to push it to the right on Thursday by nominating Hector LaSalle, an appellate judge and former prosecutor who has amassed a conservative record, particularly on defendant rights and police oversight, to the New York Court of Appeals.

Hochul’s choice builds on the legacy of Andrew Cuomo, the former Democratic governor who at one point had appointed all seven court members, locking in a right-leaning majority that is now likely to live on. 

“Judge LaSalle has a sterling reputation as a consensus-builder, and I know he can unite the court in service of justice,” Hochul said in a statement. Hochul added that LaSalle, whose nomination is subject to a Senate confirmation, will also be the state’s first Latino chief judge. 

In the lead-up to Hochul’s decision, a coalition of progressive New York organizations released an assessment calling the prospect of LaSalle’s nomination “unacceptable” and zeroing in on his rulings on cases that dealt with abortion, criminal justice, and labor. Last week, a group of 46 law professors released a joint letter raising concerns about LaSalle due to what they described as his “activist conservative jurisprudence” and his “cavalier attitude towards reproductive rights, hostility to organized labor, and a worrying insensitivity to due process.”

“He’s put his judicial philosophy out there, on paper, and it strikes me he is to the right of the majority of New Yorkers,” Steve Zeidman, a professor at CUNY law school who signed onto that letter, told Bolts on Thursday.

“This is someone who is less concerned with individual civil liberties, and more concerned with siding with the government and corporations,” Zeidman added. 

Jocelyn Simonson, a professor at Brooklyn Law School, told Bolts on Thursday that she also signed the letter because she finds LaSalle’s record on issues including reproductive rights and criminal procedure to be “abysmal.” 

If he is confirmed by the state’s Democratic-run Senate, LaSalle would fill a vacancy left by Chief Judge Janet DiFiore, who abruptly resigned this summer. On the court, DiFiore was part of a bloc of four judges—all appointed by Cuomo—who have consistently banded together around rulings that strengthened the hands of law enforcement, management over labor, landlords, and prosecutors in a slew of cases, the publication New York Focus reported in June. 

DiFiore’s departure broke that bloc’s control over the court, but LaSalle’s record suggests he would reconstitute a conservative-leaning majority.

The main case highlighted by the law professors’ letter last week was a ruling, joined by LaSalle in 2017, that partially protected crisis pregnancy centers, which are run by anti-abortion groups, from an investigation into possible fraud by the New York attorney general’s office.

Another LaSalle ruling that has gained scrutiny came in a 2015 case that authorized the corporation Cablevision to sue union officials for defamation despite state laws that are meant to protect labor leaders. Communication Workers of America released a statement on Wednesday, before LaSalle’s nomination, denouncing his “anti-union stance that directly contradicts the rights of New York’s workers to organize.”

LaSalle has also drawn criticism from criminal justice reform advocates for regularly voting against defendants who brought lawsuits challenging their arrest or conviction. 

Simonson, who teaches criminal law, pointed to a 3-2 ruling in a 2014 case known as People v. Corbin, in which LaSalle sided with the majority in holding that a defendant had waived his right to challenge the constitutionality of a warrantless search when he pled guilty. “Judge LaSalle has demonstrated a troubling lack of concern for the rights of people charged with crimes, especially when it comes to the ability of courts to review unconstitutional police conduct,” she said.

LaSalle would be the fourth former prosecutor on the seven-member court. He is, in fact, the third consecutive appointment to the court who is a former prosecutor, after Cuomo-appointee Madeline Singas and Hochul-appointee Shirley Troutman.

The court currently has no member who has worked as a defense attorney.

“When you look at the federal level, it’s such a contrast with what’s happening in New York,” said Zeidman, the law professor who is himself a former public defender, pointing to President Biden’s nomination of civil rights attorneys and public defenders to the federal bench. That push has largely not been mirrored in state courts, even in blue states like New York.

“The need for that professional diversity, it’s evident in how the [New York] Court of Appeals has operated for the last several years,” Zeidman said. “When you look at criminal cases, much has been written about the fact that the court of appeals is hearing fewer and fewer criminal cases, and when they are, the majority seems to have a knee-jerk reaction of siding with the prosecutors no matter how egregious the issues raised by the defense.”

Eliza Orlins, a public defender and activist in New York City, said she is concerned about the broad powers the chief justice exercises over the court system.

“We’ve made marginal progress in New York in terms of criminal justice issues, when prior we were one of the worst states in the country on discovery, on prosecuting children as adults, on so many things,” she told Bolts on Thursday. “That can all be put in jeopardy.”

Hochul’s choice was constrained to a list of seven names selected by the state’s Commission on Judicial Nomination, a body made up in large part of appointees of Cuomo and DiFiore that created controversy for excluding some prominent liberal jurists and candidates of color. 

Still, the list presented a clear ideological choice for Hochul. Three of the jurists on the list, including LaSalle, had a record closer to that of the court’s current conservative bloc. Three others were endorsed by the progressive coalition, The Court NY Deserves, as the likeliest to counterbalance the right-leaning bloc.

LaSalle was one of three judges on that list to receive the highest qualification ratings from both the New York State Bar Association and New York State Trial Lawyers Association; the other two who did were among the jurists who were championed by progressives. LaSalle has also received strong support from Hispanic and Latino lawyers’ bar associations in New York.

After Hochul’s decision, several progressive groups in that coalition, such as the Working Families Party, quickly called on the state Senate to reject LaSalle. 

“The folks we were hoping ultimately would be considered and appointed were people whose backgrounds and histories showed they were committed to uplifting the lives of marginalized folks,” said Tolu Lawal, the co-lead organizer of Unlock The Bar. “Hochul is on notice and the Senate is also on notice that people are paying attention, and we will be watching the votes and making decisions afterward.” 

Several left-leaning New York senators announced they would oppose LaSalle on Thursday. 

“It’s indefensible to ask for Black votes and then work to incarcerate us,” Jabari Brisport, who represents Brooklyn tweeted on Thursday. “No on LaSalle.” 

Samra Brouk, who represents the Rochester area, denounced LaSalle’s judicial record as “anti-woman, anti-worker, and anti-family.” Others who voiced opposition include Michelle Hinchey, Kristen Gonzalez, Robert Jackson, and Julia Salazar. 

Other Democratic senators with a progressive reputation had more vague reactions to LaSalle’s nomination on Thursday. Brad Hoylman, the chair of the chamber’s Judiciary Committee, told New York Focus that he is undecided on LaSalle. Zellnor Myrie, who released a statement last month calling on the governor “to prioritize civil rights and defense experience when selecting our next top jurist,” also tweeted that he was undecided on Thursday.  

Nominations to state court typically don’t draw much attention or controversy. “Traditionally, the senate has been a rubber-stamp,” Zeidman said.

In 2021 progressives tried to organize against Cuomo’s choice to send Singas, who at the time was the district attorney of Nassau County, to the high court. But despite some recorded opposition in the senate, Singas was easily confirmed.

She went on to solidify what became the court’s conservative bloc. At least one powerful New York senator, Michael Gianaris, told Bolts and New York Focus in July that he regretted his support for Singas. On Thursday, his office pointed Bolts toward a statement he issued in September that called for “diverse legal experience.” Another New York senator who supported Singas’s nomination, Andrew Gounardes, said in July that he did not regret his vote because “no one could foresee just how important state government would be;” on Thursday, he released a statement on Thursday saying that he was “deeply concerned” by LaSalle’s record and that New York courts should be a “bulwark” against the conservative federal judiciary. 

Critics of LaSalle are intent on at least making the case this year that state institutions deserve a bright spotlight. 

“In light of the current composition of the Supreme Court and other federal courts, our state courts are more important than ever as interpreters of our laws and our rights,” Simonson said. Zeidman concurs. “I’m optimistic that there’s going to be an awful lot of attention to the confirmation process this go-around.”

Alex Burness contributed reporting.

The article was updated on Friday morning to reflect additional statements from New York senators.

The post Kathy Hochul Pushes New York’s Highest Court to the Right appeared first on Bolts.

Bynum lost his re-election bid last week to Erica Ramirez, an assistant district attorney in the Harris County DA’s office. Ramirez was one of nine prosecutors running for judge in the Democratic primaries who have worked under DA Kim Ogg, who has opposed recent reforms. Five of those prosecutors lost, three won, and a ninth faces an incumbent in a May runoff. These mixed results come with Harris County at a crossroads. While police and prosecutors blame bail reforms, without evidence, on a pandemic-era spike in violent crime, reformers continue to push for change to reduce crowding at the local jail.

Bolts spoke with Bynum shortly after the primary about the lessons he draws from his time as a judge about reforming from the bench, the future of policies to decarcerate in Harris County, and how the left should approach judicial elections. Progressives have sought to flip the bench in a series of places recently, from New Orleans to Las Vegas. “There should be hundreds of similar efforts across the country,” he says. “There’s a lot of concrete gains you can make.” 

How are you feeling after the election? 

I am really disappointed, of course, but upon some reflection, I know that I’ve accomplished everything in the job that I set out to accomplish. There is more to be done, but I’m really proud of the progress we made. The most important thing was settling the bail lawsuit with a very strong consent decree and federal monitor. We made structural changes to end unlawful detention practices that are not going to be easily rolled back. We also implemented a cite-and-release court, which the county had never done before. The other huge thing was taking court appointments out of the hands of judges, which was an incredibly corrupt system, and putting them into the hands of an independent office that has greater resources. [Editor’s note: the judges revamped how lawyers are assigned for indigent defendants.]

I would have loved to stay on and see these changes through and improve upon them—that’s what I was asking voters for. But I also know that I’m leaving a job that ruins people, where I have seen people become corrupted and compromise their integrity. I’m really proud to have come in and done what we have, and to leave with my integrity intact. 

Some of your opponents framed these elections as a test for bail reform. How do you respond to your loss in that context?

Ultimately I take full responsibility for the result in my race. However, if you look at most of the DA challengers, they failed. If you look at the results in the Democratic primary, it’s also largely identity-driven results. I don’t think it’s a repudiation of our reforms because there were resounding wins from colleagues of mine that are just as strong proponents of what we did here. I’m sure the opposition would love to make me a poster child, but that’s not what happened.

What has your time on the bench taught you about the importance or difficulty of reforming the criminal legal system from the inside?  

I was really inspired to run by the bail litigation. At the time, there was a preliminary injunction that basically destroyed the old system, and I knew that a new system would be built in its place. From the beginning, we had a real clear strategy about how to change the system and what tools we were going to use, and we did it. Federal courts, I think, are better historically at disrupting systems of oppression on a temporary basis, but then they’re really bad at supervising and implementing a long term remedy—because really, that takes a political follow through. Look at the integration of schools. 

So there are significant changes that can be made with an inside-outside kind of strategy: coming in as an outsider and making changes inside, lasting changes that change the culture. On top of all I was talking about with the structural stuff we did, there’s a lot of soft power, the daily practice that can change what courts look like and how they feel to people. 

On the whole, my real feeling right now is that probably the biggest impediment to using electoral projects to achieve lasting structural change to systems of oppression is the Democratic Party itself. So many of the prosecutors running in the Democratic primary, I can’t differentiate their politics from someone on the pretty far right. The party effectively just doesn’t have the wherewithal for some reason to enforce some discipline around consolidating gains in an electoral way.

I think that another reason why I’m something of a target is that I understand the rules very well and I know they allow me to say lots of different things that other judges just don’t want to say. I think in some ways, judicial races are the perfect races for Democrats, because Democrats don’t want to say anything in general. In judicial races, they can just claim there’s a rule against saying anything or standing on any principle, but that’s not true. The people who previously presided over the courts often made public statements about being tough on crime.

One big critic has been the local DA, who’s also a Democrat and who you’ve openly clashed with. What’s her role in the local narrative around these pretrial reforms? 

To answer the question I kind of have to take a step back and talk structurally. I am in favor of electing judges, especially criminal court judges, because it’s really important to have local control over police and prosecutors. That’s why we elect local district attorneys and don’t have consolidated statewide prosecutor’s offices for the most part. There’s some sense that it’s important to locally control these powers. 

I think that the reason the DA has so publicly clashed with many of us is that we came in, as elected judges, and we turned the position from this perversion that it had become—which was basically just a rubber stamp for the worst practices on a daily basis—to actually providing robust oversight of police and prosecutors. And prosecutors were very upset about it. 

What about the role of local media in the narrative around pretrial reforms? A recent analysis of coverage said local media helped construct a “distorted narrative” that exaggerated the risks of pretrial reforms while minimizing their positive impact. 

It’s really local broadcast news that does this huge public disservice. We have the largest Crime Stoppers organization in the country here in Houston. They have a huge building down on Main Street, and it’s actually named after a longtime local news anchor. Crime Stoppers describes the local news as their partners, when really, they are a political advocacy organization. So it’s this kind of toxic mix of lazy local news segment producers that have this pipeline of fresh stories pumped out by the Crime Stoppers PR machine. The world that I see on the local news just has no relation to the world that I see in the courtroom and the world that I live in and the community that I live in. I think that we forget that the airwaves are ours, they don’t belong to Sinclair or Tegna. 

You’re a democratic socialist who ran on an explicitly decarceral agenda: How did those values guide your approach on the bench?

One of the rallying cries was, “people need care, not cages.” In a misdemeanor court in particular, most of the cases that I’ve seen on a daily basis for over three years, people were there because they weren’t getting something they needed. When I’m seeing people for the first time at an arraignment, when I’m trying to see if any conditions for release are necessary—or in the rare case that someone is detained, having a detention hearing about whether they can be safely released—the number one thing that comes up with people every day is housing. It’s so often that if someone had a place to go, if they had a different place to go, if they had really any place to go at all, then this whole expensive, formal court process never would have been necessary. I mean, you wouldn’t believe how many cases you see involving shoplifting for food or baby formula. It’s people who aren’t getting what they need, who are suffering, and also to a large extent are living in communities that are being targeted by police. What is all this pain and cruelty for? This formal process of detaining someone and all the money we spent—what good was it doing? 

Coming in with this decarceral approach, I just see a lot of this process as an inadequate, cruel response to larger social problems. The system has these broad promises, like the presumption of innocence, the high burden the state has to meet and all that, but it often falls short. 

Now that we’re not all just rubber stamps for prosecutors, we’ve removed a lot of the coercion that was driving the guilty plea mill here—like detaining people just because they couldn’t afford to pay. But we also stopped revoking people’s bond because they were five minutes late and petty reasons like that. We stopped making them appear in court so much and just wrecking people’s lives with unnecessary obligations. [Editor’s note: In 2015 and 2016, roughly one third of all misdemeanor cases ended in a dismissal or acquittal in Harris County. For misdemeanor cases filed in 2019, about two-thirds did.]

What is the future for pretrial reforms to reduce detention in Harris County? How much responsibility do judges bear for the crowding and dangerous conditions that persist for people in the local lockup? 

The jail is just as full as it ever has been, and it’s largely felonies. I don’t think I have anyone detained right now, because in the rare case that I make the requisite findings to detain someone and provide the requisite process, that person gets a trial within like two weeks. I know that’s not possible in all felony cases, but the thing is, there’s some fundamental untruth about the differentiation between misdemeanors and felonies. A huge, huge proportion of felonies that are pending are actually misdemeanor level conduct that are then subject to this crazy word that we use, “enhanced.” So a third theft, even stealing a candy bar, can be a felony. People like that are still being detained en masse by the (felony) district courts. Ultimately, it’s the responsibility of the DA, who just has consistently refused to exercise discretion. 

What do you think others with a similar outlook should take away from your win in 2018, and your loss this year—about whether to run, whether it’s worth it, what to expect if you do?

I think that there should be hundreds of similar efforts across the country. There’s a lot of concrete gains you can make. Having run in leftist circles my entire adult life, I find that there’s often a real hesitancy to dig in and do the work and forge coalitions. I mean, one of my best working partners here has been the sheriff, Ed Gonzalez, who is outstanding and who went to the mat to support these reforms. We shouldn’t be afraid as leftists to engage with the system and wield power, it is not compromising in and of itself to do that. We can make concrete material gains for many, many people in our community. 

One of my hopes moving forward is that I’ll finally have time to collect my notes and thoughts, and then I’ll get to talk to people about how to do it. I still believe in the project and I believe in building upon these gains. And ultimately I really believe in the courts. 

I believe society needs courts as a method of dispute resolution, an attempt to put systemic fairness into action. Even though courts have failed for generations to do that right, the promise is still really great. And I think that in places where judges are elected, that’s a pathway for making the systemic changes that are needed to deliver on that promise. 

This interview has been edited for length and clarity.

The post Decarcerating from the Bench appeared first on Bolts.

The 2018 midterms shook up Houston’s criminal legal system. Democratic candidates swept to victory in dozens of judicial elections and then went on to champion a landmark bail reform in Harris County. Now these judges are up for re-election, starting with next week’s primaries, and their races have shaped up as an unusual confrontation between reform-minded judges and county prosecutors, with the police union jumping in on many prosecutors’ behalf.

The outcomes could mark yet another turning point in the yearslong fight over the bail system in the nation’s third most populous jurisdiction. 

Civil rights advocates sued Harris County in 2016 on behalf of people stuck in jail because they couldn’t afford bail. The plaintiffs included a young mother arrested for driving with an invalid license and jailed for three days because she couldn’t pay $2,500—or pay a bondsman a $250 nonrefundable fee. In 2017, a federal judge declared the county’s bail practices unconstitutional and discriminatory, but Republican judges were spending millions in taxpayer money apealing the ruling—until they were booted in 2018. Their ouster transformed the bail debate. The new judges and county leadership settled the bail lawsuit and agreed to a landmark reform to reduce the number of people in jail pretrial over a misdemeanor. They also pushed for other changes like no longer jailing defendants for being late to court or testing positive for marijuana.

“It’s really remarkable,” says Sarah Wood, a public defender in Harris County who still marvels at the “cultural shift” that the new judges unleashed.  

The 2022 midterms are testing the resilience of that shift. Prosecutors from the Harris County District have flooded the field of candidates for misdemeanor and felony-level judges. A Bolts review of the county’s 29 elections for criminal court judge found 15 candidates who currently work there—and three more former Harris County prosecutors who worked there during the tenure of DA Kim Ogg. Half are running in next week’s Democratic primary; the other half are running as Republicans, which means they would face the incumbents in November.

Houston’s police union PAC hopes to expel sitting judges, and has endorsed eleven of the Harris County prosecutors who are challenging them. The union says it is committed to “endorsing judicial candidates who will effectively replace judges at the court who are letting violent criminals back on the streets.” The union has also endorsed multiple candidates who worked in the Harris County DA’s office earlier on, or who work as an ADA in another county.

This dynamic is in stark contrast to 2018, when the bench was dominated by Republican judges and only one line prosecutor filed to run for judge, according to the Texas Monthly. 

Ogg, a Democrat, has demonized the county’s bail settlement and publicly blamed its reforms for a pandemic-era rise in violent crime. In a statement to Bolts, a spokesperson from Ogg’s office, Dane Schiller, said Ogg’s position is that, “No one should be held in jail just because they are poor, but no one should be released without proper consideration for public safety.” Other local leaders like County Judge Lina Hidalgo and Sheriff Ed Gonzalez were supportive of the bail reform settlement.

Some of Ogg’s deputies echo her criticism. Katherine Thomas, an assistant DA who is challenging Judge Abigail Anastasio in the Democratic primary, recently said she was frustrated by what she considered to be low bond settings, saying, “It was often like our victims didn’t have a voice.” 

There is no sign of coordination to field candidates from the DA’s office. But Ogg’s resistance to bail reforms, combined with a slew of her prosecutors running to unseat sitting judges has raised eyebrows, among judges and advocates in Harris County. 

Franklin Bynum, a judge who has gained national attention for his progressive and decarceral outlook and for clashing with Ogg, says he’s “not at all surprised” he faces a prosecutor in next week’s primary. He believes the judges who took the lead on implementing reforms are being challenged by sitting ADAs for a reason. “All my colleagues are good but the ones they’ve targeted have been strategically targeted to weaken the group. I’m not the only one,” he said. Bynum’s primary challenger Erika Ramirez didn’t respond to interview requests for this story. If Bynum wins next week, he would face another assistant DA, Republican Mark Goldberg, in the general election in November. (The local police union has endorsed both of Bynum’s opponents.)

Advocates who have fought for bail reform worry that new judges could push back against old reforms and resist new ones if they have a different outlook. “They could start putting people in jail right away for missing court, for testing positive on a marijuana drug test, missing pretrial services,” Wood said. “And they could start levying large fines on defendants again. It used to be commonplace for judges to fine $1,000 for misdemeanors.”

In settling the bail lawsuit, Bynum and the county’s other misdemeanor court judges agreed to a federally monitored consent decree that required them to release people charged with most non-violent *misdemeanor offenses—one of the first of its kind in the nation. The reform also provides that people charged with misdemeanors are now guaranteed much stronger procedural protections at bail hearings including a lawyer and a full assessment of ability to pay. It also mandated that the court improve its system for reminding people of court dates, and that it better accommodate people’s work schedules or family obligations by allowing hearings to be waived or rescheduled.  

While Ogg has claimed that bail reform “will continue to be a driving factor in the crime crisis gripping our community,” reports from the federal court monitor in the bail case have found that releasing people accused of misdemeanors on their own recognizance did not lead to a substantial increase in arrests or reoffending. Further, racial disparities between who is released pretrial and who remains in jail were eliminated. Sandra Thompson, a law professor from University of Houston who was appointed as deputy federal court monitor, said most of the cases critics point to have nothing to do with the bail reforms adopted by the county. 

“When you drill down into what they’re upset about,” Thompson said, “the vast majority of cases are felony cases which had nothing to do with the consent decree.” 

Still, the pushback against bail reform has been intense. Republican members of the Harris County Commissioners Court recently tried to prompt a vote to back out of the consent decree saying the county is threatened by people released on low or no cash bonds. Also last fall, as COVID-19 spread rapidly in Texas lockups, Republicans adopted a law to limit jail releases and require cash bail for people accused of violent crimes. Opponents of the law fear it will lead to more pretrial detention and compound existing problems inside local lockups. 

Besides bail reform, the new misdemeanor court judges also pushed other changes over the past four years, including revamping the way judges assign lawyers for indigent people. “Before we were elected I had heard of judges that have appointed lawyers to cases then throw fundraisers, some of these lawyers would be making $300,000 a year from court appointments,” said David Fleischer, a misdemeanor court judge. “We wanted to get away from that.” 

Fleischer faces challenges from two assistant DAs this year, one in the Democratic primary, and one Republican endorsed by the police union. Elizabeth Buss, this Republican candidate, has shared stories blaming the county’s progressive judges for violence in the county.

Kelley Andrews, who also won her misdemeanor court seat in the 2018 wave, said the judges also worked to reduce the number of court appearances defendants have to make. “It used to be that the person was required to come back to court every two to three weeks,” she said. This was most often for status hearings — when evidence has been submitted, for example, or to schedule a future hearing. “It was ridiculous to have people coming back when nothing was happening. It was an oppressive way to keep people under their thumb,” and added, “We waive appearances very freely now, unless there is a condition that needs to be addressed, or it is a trial, or a hearing where someone is entering a plea.” Like Fleisher and Bynum, Andrews is facing a contested primary, though her opponent is a defense and immigration attorney. 

Some judges, including Bynum and Darrell Jordan, also pushed for a cite-and-release program to keep people accused of low-level from entering jail in the first place. However, local officials have struggled to get the program off the ground after launching it at the start of the pandemic. 

These policy changes only scratch the surface of a much larger system of mass incarceration in Harris County. The current jail population is over 9,000 people, which is roughly the same as when this class of judges took the benches in January of 2019. A pandemic-induced court backlog and the spike in violent crime seen around the country have been major contributors to this—although it’s notable that fewer than 400 of the people there are held on misdemeanor charges, a class of people the judges have pushed heavily to not incarcerate pretrial. 

Even with the misdemeanor bail reforms in place and the consent decree that county officials have agreed to, the progress that these judges have supported is far from set in stone. 

“The stakes are high,” said Wood. “I think they need another four years to make things run smoothly. This stuff isn’t happening overnight.”

*Correction: The description of the bail settlement in the original story stated the wrong level of offense, and was corrected on February 25.

The post Judicial Elections Test Profound “Cultural Shift” in Houston appeared first on Bolts.

A small court in Franklin County, Kentucky, will hold a trial to decide whether the state’s new election districts are unconstitutional. The lawsuit, backed by the state Democratic Party, argues that the new maps unduly entrench Republican power by carving up urban areas. 

Franklin may be a county of just over 50,000 residents, but it is also a rare Democratic-leaning jurisdiction in this conservative state and home to the state capital, Frankfort. That has long made Franklin County an inviting place for groups looking to file lawsuits against the state, giving its circuit court outsized importance when it comes to voting rights, education, labor rights, and a lot else in state politics. That has also made it a target for Kentucky Republicans.

Last year, they stripped Franklin County’s circuit court of some of its jurisdiction over statewide matters, overriding a veto by Democratic Governor Andy Beshear to get there. In 2022, they’re going after a seat on the court, where a conservative gain could further narrow one of the remaining paths for civil rights litigation in Kentucky. 

One of the two judges sitting on the court, longtime incumbent Phillip Shepherd, faces a well-funded challenger this year. The race is nonpartisan, but Shepherd has long drawn Republican fire. His opponent Joe Bilby is a lawyer who describes himself as a “constitutional conservative” and who once worked as a legislative aide for U.S. Senator Mitch McConnell. 

McConnell has already gotten involved. His political action committee, Bluegrass Committee, donated to Bilby’s campaign shortly after he entered the race last fall. 

Republicans nationwide have lashed out against judges who they think are ruling against them on voting rights cases. They have passed laws across the country that weaken their powers, as they did in Kentucky last year, while also seeking to oust them at the ballot box. National conservative groups have poured money into dominating local judicial races. In the last midterm cycle, the biggest donor to the Republican State Leadership Committee by far was the dark-money Judicial Crisis Network, a group that champions a conservative judiciary. 

Douglas Keith, who tracks spending in judicial elections for the Brennan Center for Justice, says conservative groups have intervened in local races for many reasons, ranging from building a bench to targeting a particular judge. But it may also be that some localities acquire far greater importance than one would expect, “like the Franklin County court which plays a special role in Kentucky.”

Attorneys have long zeroed in on Franklin County to stop civil rights violations. When the state Board of Elections moved 175,000 registered voters to an “inactive” list before the governor’s race in 2019, the court granted an injunction to block it, citing the “chilling effect on voters in the Commonwealth.” At the time, Kentuckians could file lawsuits against state officials in that county, no matter where they lived, since that is where state officials work. That’s no longer as easy today because of the Republican law adopted in 2021. Now lawsuits filed against new state laws, regulations, or executive orders must be filed in a plaintiff’s home county. 

But Franklin County’s court continues to hear lawsuits against state officials and state actions. Beshear successfully challenged new Republican laws against his COVID-19 regulations there. 

As long as a group finds a plaintiff based in Franklin County, it can still file there and have its case heard by one of its two judges—Shepherd or Thomas Wingate, who is handling the gerrymandering case. Few court systems in Kentucky fall outside of very conservative areas—Franklin is one of three counties that McConnell lost in his 2020 re-election race—and lawsuits alleging civil rights violations may receive a less friendly hearing in many other places.

Franklin County’s court can also consider cases alleging that state officials are neglecting their duties; last summer, a coalition of civil rights groups sued Beshear in Franklin County for failing to give some Kentuckians with felony convictions the information needed to restore their voting rights.

Ben Carter helped file that lawsuit as a counsel at the Kentucky Equal Justice Center. He says one main reason for filing a lawsuit in Franklin County is because judges there are already used to reining in other branches of government.

“When you have a question about the governor or the legislature, you want a judge who has been in the business of telling the executive and legislative branch what they can do,” he told Bolts. “It’s not as daunting to them. They’re in the habit of making those calls and will not give undue deference to the legislature or the governor.” 

He added, “When you file in Franklin Circuit Court, you know that you are going to get one of two judges with a combined 30 years of experience making thoughtful decisions about the scope of government powers, and those are muscles that other courts have not gotten to exercise.”

As one of only two circuit court judges serving in Kentucky’s state capital for 16 years, Shepherd has heard many lawsuits against the state. In the felony disenfranchisement case, he greatly disappointed voting rights groups last fall after siding with Beshear, who had asked for the lawsuit to be tossed. But Shepherd has reined in the legislative or executive branches in other instances. In 2014, he rejected the settlement that the state had reached with a coal company that was accused of massive violations of the Clean Water Act. He ruled that the terms were too lenient on the company, and that the state’s regulations had created “incentives for inaccurate reporting” of water pollution. 

Republicans won control of the state government for the first time in nearly a century in 2016, and their aggressive agenda has since repeatedly triggered lawsuits over constitutional rights or the limits of legislative power, including in recent years public health during the pandemic. In that time, Shepherd has struck down several high-profile bills as unconstitutional. 

Shepherd overturned a law slashing state pensions in 2018, leading Republican Governor Matt Bevin to call him an “incompetent hack.” When Shepherd’s decision was later upheld by the Kentucky Supreme Court, Bevin called that decision “an unprecedented power grab by activist judges.” Justice Daniel Venters wrote an op-ed criticizing Bevin for trying to “bully” judges. 

Then in 2021, Shepherd struck down several Republican laws, passed over Beshear’s veto, that limited the governor’s emergency powers in the context of COVID-19. The decision was later overturned by Kentucky’s supreme court. Also in 2021, Shepherd struck down a law that offered tax credits to fund private school tuition, ruling that this system could “exacerbate inequality in educational funding.”

These decisions put Shepherd squarely in the GOP’s crosshairs. 

Republicans have cited Shepherd’s decisions and even social media habits to make the case that he is too biased to hear politically charged cases. But a 2016 analysis published by the Courier-Journal in Louisville found that the judge actually often ruled for Republicans in high-profile cases. On the campaign trail, Bilby has also attacked Shepherd for failing “to follow the law.” Shepherd defends his impartiality, recently telling the State Journal that he sees his role as “speaking truth to power when power is in the wrong.”

Neither Bilby nor Shepherd replied to requests for comment from Bolts.

Bilby’s legal endeavors have signaled a different outlook than Shepherd’s. In 2020, he represented Tabernacle Baptist Church and helped convince a federal court to rule that churches across the state didn’t have to comply with Beshear’s executive order banning mass gatherings, because it infringed their religious freedom. Around the same time, he represented a Christian school that asked the U.S. Supreme Court to allow it to reopen, despite Beshear’s order. 

Several years ago, Bilby also defended a Christian organization that was receiving state funding to operate group homes for children against a lawsuit that alleged the group was pressuring the children to become Christians. 

Bilby had already raised well over $90,000 by early January, a large sum for an election in a county where just about 25,000 votes were cast in the last presidential election. That’s more than any Supreme Court candidate raised in Kentucky through the state’s May 2020 primary. And it’s more than three times Shepherd’s haul so far. Shepherd ran unopposed in 2014.

Bilby’s effort to oust Shepherd comes amid broader talk by the Kentucky Republican Party to change the state’s judicial system. In a 2017 speech to the Federalist Society, Bevin suggested outright ending judicial elections. Two years later, the Senate’s Republican Majority Floor Leader Damon Thayer also proposed changing how judges are chosen. Asked if he was motivated by retaliation after Shepherd’s ruling to throw out the cuts to state pensions, Thayer said that judges “need to be reined in.” 

Corey Shapiro, legal director of the ACLU of Kentucky, says lawmakers are “playing games with what should be an independent judiciary.”

He told Bolts that, with federal courts moving to the right, state courts have grown more central to fights over civil rights and the integrity of elections. “As we’re seeing federal courts become more resistant to supporting voting rights, especially with respect to partisan gerrymandering, advocates for voting rights are going to seek relief in state court,” he said.

Voting rights cases are likely to continue popping up in the lead-up to Kentucky’s 2023 governor’s race and the 2024 presidential race on matters like voter eligibility, purges, and mail-in ballots. What 2022 may decide is who will be the first judge to hear them, and whether the Republican legislature takes additional steps to insulate its decisions from courts.

Joshua Douglas, a law professor who works on election law at the University of Kentucky, says “We’re in for a brave new world of partisanship infecting Kentucky judicial races.” 

The post Meet the Local Judge Mitch McConnell’s PAC Wants to Unseat appeared first on Bolts.

Caroline Turner wants to reform the criminal legal system from the inside out—a familiar refrain to those following the progressive prosecutor movement. But Turner doesn’t want to be a top cop. She wants to be an arbiter of justice, which is why the former public defender is running for judge in Philadelphia.

“Judges have the power of life and death,” Turner told The Appeal: Political Report. “You can throw someone in jail with little evidence, they lose everything.” She says she would instead take steps to reduce incarceration.

On May 18, Philadelphia voters will choose eight judges to serve on the city’s Court of Common Pleas, which oversees the most serious cases, and three for the Municipal Court, which deals with lower-rung cases such as traffic violations and evictions. Turner is one of 20 candidates vying for the 11 open seats, a pool that advocates say has more candidates trending leftward than in past elections. And she’s one of nine candidates endorsed by the powerful leftist political organization Reclaim Philadelphia.

“This group of candidates are a more progressive lot than last time around,” said Katia Pérez, a mass liberation organizer for Reclaim. 

Several of the judge candidates who have gained support from activists have a background in public defense and are running on platforms that stand in stark contrast to the “lock ’em up” campaigns of the past. Reducing the use of cash bail, avoiding lengthy sentences, and bolstering tenant protections in eviction cases are some of the promises they’ve made on the campaign trail.

No judge candidate is likely to be “completely in line” with the abolitionist values that Reclaim holds, Pérez says. So when it comes to making endorsements, “we want to know, do they understand that in Philadelphia specifically—the poorest big city [in the U.S.]—what comes with poverty? A lot of trauma. A lot of mental health issues, a lot of health issues. Homelessness. When we were talking with these candidates we wanted to be sure they understood who would be standing in front of them.”

This is the second cycle where Pérez and her colleagues have recruited lawyers to run for the bench and endorsed candidates. The group arrived at its endorsements after interviewing candidates and people familiar with their work, then sharing the findings with Reclaim’s roughly 600 members, who voted on which candidates to support. This approach differs from the political hobnobbing that Pérez says usually characterizes these elections. 

Similar shifts are evident in a small but growing number of jurisdictions including New Orleans, Clark County, Nevada, and Hamilton County, Ohio. “We’ve seen some real progressives elected to the bench. So I think that as … people organize better and start to really focus on that place of power, there is a lot of potential coming,” said Premal Dharia, executive director of Harvard Law School’s Institute to End Mass Incarceration. “I’m excited to see the beginning of what looks like a real movement around judges.” 

—

In 2018 a group of progressive community organizations, including Reclaim, formed the Judge Accountability Table to inform the public about judicial candidates. The coalition held virtual forums in March where every candidate, including some without activist endorsements, agreed that cash bail was weaponized against poor defendants. “To me it is the result of systemic discrimination and racism,” said Wendi Barish, a labor and employment lawyer who is part of the Reclaim slate. 

George Donnelly, who works for the Pennsylvania Senate Democratic Caucus and has helped Reclaim recruit judicial candidates, says that’s a big departure from the status quo. “You look at the bench now and it’s largely people from private practice and prosecutors. …  They don’t have the kind of experience working with marginalized communities, working with the accused, working with folks on cases that aren’t economically viable,” said Donnelly, a former public interest lawyer. “It’s important to have folks on the bench that understand that.” 

Winning a judicial seat is practically a lifetime appointment in Pennsylvania. After each judge’s 10-year term, voters answer a simple “yes” or “no” to choose whether that person should be retained for another term. It is exceedingly rare for a judge to not be retained. So the stakes are high in terms of longevity of the winner’s tenure and because of the power they wield. 

Sentencing is one of the clearest displays of judicial power. Though prosecutors most often set the stage for what sentence a convicted person receives, it’s ultimately up to the judge. A 2018 report by the Abolitionist Law Center found that Pennsylvania had the fifth-highest proportion of people serving life without parole sentences in the U.S., and that Philadelphia courts were driving that trend. Pérez says that several of the candidates Reclaim endorsed made clear “they did not agree with how often the sentencing of life without parole is given” and promised to prioritize alternatives. But none renounced life without parole sentences altogether.

The vast majority of criminal cases are decided without a jury, and for civil cases, judges are the sole arbiter. “In the Court of Common Pleas in Philadelphia and municipal court,” Donnelly said, “who is on the bench and what procedures they decide to put in place gets to decide who gets evicted and who stays in their homes, who gets to get compensated for the wrongs that happened to them in their workplace I say to folks all the time, there is no government official that affects your life more than the judge overseeing your case.”

In housing disputes, including eviction cases, landlords are far more likely to be able to afford a lawyer than tenants. During one of the Judge Accountability Table’s candidate forums, Michael Lambert vowed that he would refuse to arbitrate tenant-landlord disputes until the tenant has legal representation. He added that there are programs available to help tenants, but they need to be far more robust. “We have to have more attorneys that are available for the tenants,” he said.

Judges are also important players in the movement for progressive prosecution according to Dharia. She points to Arlington, Virginia, where Commonwealth’s Attorney Parisa Dehghani-Tafti made it a policy to not prosecute marijuana possession when she took office in 2020. Judges balked and required that her prosecutors write a case-specific explanation for every instance—a blanket rule that was never required of prior administrations. 

Dehghani-Tafti brought the dispute before the state’s Supreme Court. Justices rejected her attempt to rein in local judges, saying they could not rule so broadly without a specific case.

“The public defenders and prosecutors in many parts of Virginia have aligned goals, at least to a degree, and it’s really just that there is resistance from the bench,” Dharia said. In Philadelphia, District Attorney Larry Krasner has met with similar resistance from judges, who initially chastised his prosecutors for being too lenient.

But judges are also in the position to hold prosecutors accountable for doing what they promised on the campaign trail. 

“A huge issue with these progressive prosecutors is that they have big plans and policies, but that’s not actually how it’s playing out in court,” Dharia said. 

To this end, many candidates in Philadelphia’s judicial races have their eyes on cash bail. Krasner’s office stopped asking for bail for a number of low-level crimes early in his tenure, but Turner says there are still too many people incarcerated pretrial in Philadelphia. In particular, she disagrees with Krasner’s COVID-era policy of asking bail commissioners to set an impossibly high $999,999 bail—a dollar less than $1 million, which triggers certain holding conditions—as an attempt to implement a binary system akin to Washington D.C. A person is either a threat to the public, or they are not, she says. Turner doesn’t think that Krasner’s office is making well-informed decisions about who needs to be jailed, and she supports eliminating cash bail entirely. 

Bail commissioners don’t have to be lawyers, hearings often last just a few minutes, and defendants often have little to no support from a defense attorney. Turner says that if she is elected, she will advocate for more robust bail hearings to follow this initial procedure.  

“If a defense attorney knew that I was in the Court of Common Pleas, they could file a motion to reconsider bail,” she said. “We have to keep everyone to a high standard.”

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Despite the position’s importance, running for judge can be a hard sell to progressives. For one, judges don’t have the same autonomy that an elected prosecutor does. “They can’t lobby for legislation, can’t lobby for social change movements, can’t be overtly political in that way,” said Donnelly. But he believes that judges can still have a political impact: “Judges have agendas and ideologies, whether it’s a municipal court judgeship in Philadelphia or the Supreme Court of the United States, you can craft decisions and make decisions that push a certain ideology and push a certain agenda.”

And the race itself is less glamorous and it’s harder for a candidate to distinguish themselves by their values: It is a down-ballot election that voters don’t often pay attention to. In Philadelphia, the outcomes of judicial elections have historically been influenced by two factors: where a candidate’s name appears on the ballot and whether they have an endorsement from the Democratic Party. The first is completely arbitrary—decided by a lottery which, for municipal court elections, entails picking names out of a coffee can. And the latter requires politicking in circles where public defenders and public interest lawyers are not often insiders. 

“The people that are in the trenches aren’t going to bar association meetings or these political networking events, you’re at the jail. You’re in the courtroom,” said Jessica Brand, the founder of a social justice consulting firm, the Wren Collective, and a former public defender who was an adviser to the Flip The Bench campaign in New Orleans, which supported a slate of progressive judges. (Brand was legal director of The Justice Collaborative, the predecessor of The Appeal Media.)

Money is a barrier, too. When Donnelly has tried to recruit progressive candidates, he has repeatedly found that the finances required to run a campaign were an obstacle—not just in terms of getting enough donations, which Donnelly says a grassroots infrastructure in the city could help with, but rather affording the time it takes. “They would have to take a leave from work, and do a full-time campaign for five months,” he said. For a private attorney this may not be a challenge, but the situation is different for public defenders and public interest lawyers. “Some of these folks had families, some didn’t know if their job would let them do that, or couldn’t go five months without a paycheck.”  

Pérez is aware of these obstacles; she and her colleagues are working to figure out how to help candidates overcome them. “We are very determined to make sure that we work on identifying and building a pipeline for more candidates who are of the community—the immigrant community, the Black and brown community,” she said. This includes financial infrastructure for a campaign, as well as connecting potential candidates with political power holders. 

“We’re figuring out how much of an impact we can have, the movement can have,” she said. “What we’re always keeping in mind is the long-term effects that the judicial system—the carceral system—is having on Philadelphians.”

Also read our preview of the May 18 elections for judge in Allegheny County (Pittsburgh).

This article was updated to clarify that in Philadelphia’s judicial elections only the municipal court ballot lottery involves a coffee can.

The post Philly’s Judge Elections This Month Have the Power To Change the City appeared first on Bolts.

Their campaigns for seats on the County’s Court of Common Pleas—the primary trial court for criminal, civil, and family cases—could bring overwhelming change not only to that court but also to lower courts whose procedural rules are set by Common Pleas judges.

“This is an opportunity to be transformative in terms of how our courts look, how our courts feel for the public, and the types of policy reforms that can be implemented,” said Tiffany Sizemore, a professor at Duquesne University School of Law and former public defender who is part of the Slate of Eight. 

The Slate of Eight moniker comes from grassroots racial justice organizations that teamed up to decide who to endorse out of a pool of more than 30 candidates. The groups are planning to mount major volunteer mobilizations on behalf of their chosen candidates in the run-up to the May 18 Democratic primary. 

Nicola Henry-Taylor, Lisa Middleman, Mik Pappas, Zeke Rediker, Giuseppe Rosselli, Chelsa Wagner, and Wrenna Watson round out the slate; most are criminal defense lawyers or former public defenders. Organizers supporting the slate say they chose these candidates because of their commitment to reforms like reducing the use of cash bail, curtailing long sentences, diverting drug cases, and limiting the involvement of minors with the criminal legal system.

“The slate candidates all understand how mass incarceration is one of the leading issues in this country, that the issue of mass incarceration is a national embarrassment,” Wasi Mohamed, a founding organizer with UNITE, one of the organizations that endorsed the slate, told The Appeal: Political Report. 

“Historically judges have used the discretionary power of the Court of Common Pleas to breed this system of mass incarceration. Now we have people who are actually advocates against it wanting to take these seats,” Mohamed said. 

One of the factors motivating activists to mobilize around the Common Pleas races this year was the number of seats open—nine out of 34. Only three seats were open in the last two elections combined, and with judges serving 10-year terms, such an opening isn’t likely to arise again soon.

And reshaping the bench could have a trickle-down effect. Under Pennsylvania law, Common Pleas judges have the power to set countywide rules for the administration of the county’s court system.

Taking over nearly a quarter of the bench would enable the slate to “bring a cohesive force to making the changes that we need to make on a policy level,” said Middleman, a public defender. 

The sitting judges on the Court of Common Pleas may not be as reform-minded as the Slate of Eight, but Pappas said he’s confident they’d be able to work together to produce changes. “We all have a vested interest in improving the justice system in Allegheny County,” Pappas said. “I don’t doubt that there would be skepticism and perhaps even resistance, but I also know that they know there’s a lot of work to be done.”

Middleman said she hopes to scale back Allegheny County’s onerous system of court fees, which can keep people stuck in the legal system for years. That issue has also been a focus of Wagner, who is the current county controller. The slate could also significantly drive down the number of people in jail by changing cash bail policies, something that Sizemore and Pappas say they would advocate for.

Pappas has already tackled this issue as an Allegheny County magisterial judge, a position in which he oversees the initial stages of a criminal proceeding. An ACLU of Pennsylvania report analyzed 239 cases he oversaw in 2018 and 2019, finding that he set cash bail in just six of those cases. Pappas told the Political Report he would bring a similar approach to bail decisions on the Court of Common Pleas.

“People have a fundamental right to pretrial release just like they have a right to the assistance of counsel in their case, or to be presumed innocent,” he said.

Pappas said he would advocate for rules that allow pretrial services to replace burdensome cash bail with nominal payments or none at all. Instead of release being based upon an accused person’s ability to pay, that person could be referred to mental health and addiction treatment providers and other services to ensure they show up on their court date.

Drug prosecution could also be scaled back under the Slate of Eight. Middleman says one of her priorities is increasing options for people to receive treatment or services rather than incarceration. Especially for first-time defendants, she said, “Instead of involving them in the system, you could create a diversion program where the person would not have to plead guilty to get treatment and help that they needed.” 

Sizemore sees a similar need to change how the court deals with youth cases. Her work in the last decade has focused on juvenile justice; if she’s elected, she wants to end the prosecution of minors as adults in her courtroom. Pennsylvania law gives judges broad discretion on this issue for most felony cases.

“I don’t think that children should be tried as adults, ever,” Sizemore said. “What we know is that both the science and the United States Supreme Court have told us repeatedly that children are different. They tend to be less morally culpable; they tend to have greater prospects for reform.”

In her practice, Sizemore has fought the school-to-prison pipeline by working to keep children from being placed on probation due to infractions at school, a decision made by family court Common Pleas judges. “One way that courts frequently criminalize adolescents is by reflexively making this finding that, ‘Well, if you’re here and you took a dime bag of weed to school, you must need to be on probation,’” Sizemore said. 

Sizemore said she would dismiss the charges of minors who end up in court for infractions like this. “Most children actually don’t need probation or supervision,” she said.

Across the country, advocates for criminal justice reform have increasingly homed in on judicial elections as fertile ground for change. Last year, activists in New Orleans and Las Vegas backed judge candidates whose experience and priorities mirror the Slate of Eight. But in Allegheny County, the grassroots-style campaigns of the slate candidates are a departure from the norm.

“The traditional path has been to schmooze the Democratic committee members, and get the labor council endorsement, and the FOP [Fraternal Order of Police], because that’s what judges are supposed to do,” Middleman said. “We have not chosen that traditional path, because those are not the organizations that have been vocal or helpful in making the progressive change that is necessary.” 

Instead, the candidates are relying on the organizations that endorsed the slate to mobilize volunteers.

Straight Ahead, one of the endorsers, grew out of the Abolitionist Law Center’s court watch program. Participants observed judges adopting racist and discriminatory attitudes toward defendants, said Robert Saleem Holbrook, the executive director of Straight Ahead. “We recognized that ‘OK, we have to do something about these terrible judges,’” he added.

Straight Ahead’s organizing is focusing heavily on outreach to those directly affected by incarceration, including people who are currently locked up. Although people in Pennsylvania prisons are not eligible to vote, Holbrook said Straight Ahead will be encouraging them to ask their family members to vote for the slate. 

“We are going to be flooding the prison with [information about] this slate, and telling them to send it home to their communities, because our communities are going to be impacted by who sits on these benches,” Holbrook said. “We’re going to mobilize the communities that we’ve been representing for years, but just in a defensive position,” against police and correctional abuse, he added.

These efforts have met with a positive response so far, Holbrook said. “I’ve seen a lot of enthusiasm, because they’re feeling empowered, like ‘Yeah, we are now going to matter. We are now on the offensive, entering spaces where we previously weren’t even aware that we could make an impact.’”

Last year, 1Hood Power, another organization that selected the slate’s candidates, was heavily involved in organizing during both the summer’s Black Lives Matter protests and the fall general election. Members of the group are now campaigning on behalf of the Slate of Eight with the skills they gained from organizing marches and mobilizing voters for top-of-the-ballot Democrats. “We did some stuff around helping with [the Senate elections in] Georgia, and now we’re like, ‘OK, we can actually affect right here where we live in a big way,” said founder Jasiri X.

1Hood Power is planning a big digital push for the slate as the election approaches, including a series of videos explaining the offices that will be on the ballot, including Common Pleas judge.

Voters will also have a chance to elect magisterial district judges and weigh in on a ballot initiative that would ban solitary confinement in the county jail, and another that would abolish no-knock warrants.

Mohamed said UNITE’s mobilization for the Slate of Eight has been boosted by its previous wins, which include getting multiple state representatives and local officials elected. “Every race, we build capacity, we build membership, we build interest and excitement around these races. And every victory made our members and those in the community realize that we could actually change and impact local politics,” Mohamed said. 

As homicide counsel at the Public Defender’s office, Middleman can already feel the change. “I’m used to my cause not being one that’s generally accepted or supported,” she said. “So the last several years have been amazing and inspiring. People and groups are interested, and they are supportive, and they’re willing to work really, really hard to make change.”

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