Top judge details the court’s budget needs

Acting Chief Administrative Judge Tamiko Amaker testifies at a budget hearing before the state legislature on Tuesday, Feb. 7, 2023. Screenshot via NYS Senate

By Jacob Kaye

Top court officials appeared before state lawmakers on Tuesday to share their thoughts on how the state plans to fund the New York court system in the coming year.

The all-day hearing, which touched on not only the court system but also on a controversial change to the state’s bail laws proposed by Governor Kathy Hochul, comes about a week after Hochul unveiled her executive budget, which includes an approximately $121 million increase to the Unified Court System.

Hochul’s proposal calls for $3.3 billion in state operating spending in the court system, a bulk of which would go toward court operations.

Under the proposed budget, the courts would see more money go toward its efforts to get back to pre-pandemic capacity and function, including the hiring of hundreds of non-judicial personnel. The budget also includes additional funds to bring on a number of new judges – the lawmakers passed a bill expanding the number of judges in several courts last year. Also, the courts would see increased funding for legal services providers under the proposed budget, a controversial issue which is currently being litigated in several courts.

But before Acting Chief Administrative Judge Tamiko Amaker could speak to the proposed budget changes, lawmakers peppered her with questions about the state’s bail reform laws.

Hochul has proposed eliminating the “least restrictive” means clause, which existed in New York State prior the passage of the reforms in 2019.

According to the governor, the clause has caused confusion among judges who have released defendants without the knowledge that they could have set bail. The change, she said, would allow judges to have more discretion in their decisions to set or not set bail.

“For serious crimes (those that remain eligible for bail), Governor Hochul believes the ‘least restrictive’ standard should be eliminated,” a policy platform released alongside her recent State of the State speech reads. “Data from before and after the enactment of bail reform actually shows that eliminating the ‘least restrictive’ standard for bail eligible offenses — while retaining it for less serious crimes — will not increase the overall rate of pretrial incarceration.”

Lawmakers on Tuesday repeatedly asked Amaker about the level of training judges receive on the bail laws, which led to several tense moments.

Senator Brad Hoylman-Sigal, who chairs the Senate’s Judiciary Committee, asked a number of times what type of training is offered to judges on the law, if the training is mandatory and if it's tracked.

Questioning whether or not judges understood the current bail reforms, Hoylman-Sigal made a direct reference to an op-ed penned by former Queens Supreme Court, Criminal Term Administrative Judge George Grasso, in which he calls the laws a “threat to public safety.”

“Judges may not be keeping up with the relevant changes,” the senator said. “In fact, the former administrative judge of the Queens Criminal Court, I would say, blatantly misrepresented the law in an op-ed in a major newspaper.”

Amaker told the lawmaker that while the trainings aren’t mandatory, a vast majority of judges attend them, adding that most judges were well aware of the finer details of the laws.

“I don't think that most judges have an issue with understanding the law,” Amaker said.

“I think that, just like any other area of the law or any other area of criminal law, you're going to have divergent opinions,” she added. “But it doesn't mean that judges don't understand, or haven't been taught the law ,or don't understand what their options are. It just may be that they've chosen, based on the facts and circumstances of that specific individualized case, to make a different determination.”

The tense exchange led to another following a line of questioning from Queens State Senator Michael Gianaris, who asked Amaker about recent reporting detailing former Chief Judge Janet DiFiore’s continued use of a security detail following her resignation. After detailing a number of security threats DiFiore had received throughout her tenure, Amaker was cut off by Gianaris, who accused the acting chief administrative judge of not being straightforward.

“The court system has a real problem and just the few minutes I've been here, they have provided no answers to questions of who receives training, what the training materials are, what the vote for acting chief was, whether there's still an ongoing expense of public resources for the safety of former judges,” Gianaris said. “I think there is a problem, judge, sorry.”

Revamping the courts

Amaker said on Tuesday that the proposed budget would go a long way toward helping the courts get back to the level of production seen throughout the state before the start of the pandemic.

The state’s court system will be receiving 20 new Supreme Court and Family Court judges this year, as per legislation passed last year. Additionally, the court has been given funds to hire 800 non-judicial personnel.

But in a response to a question about adding more judges, Amaker said that she was concerned about the funding.

“We would never say no to more judges,” Amaker said. “[But] we would also humbly ask the legislature for an additional appropriation – because it costs about a million dollars for each and every new judgeship if you count, not just the court attorney and… a secretary, but all of those other employees that are necessary just to open the courtroom, and the judges salary.”

Amaker added that backlogs throughout the state remain high.

There are around 81,000 backlogged cases in New York City’s Family Courts, around 21,000 in New York City’s Criminal Courts and around 12,000 in New York City’s Criminal Supreme Courts, according to the judge.

“With this budget, we'll be able to hire more employees so that we can really continue to seriously and efficiently attack the backlogs,” the judge said.

Funding for indigent defense

The court’s top administrative judge also said that increased funding to legal services providers, or 18-B attorneys who provide legal counsel to indigent defendants and children, could also help bite into the backlog.

Amaker noted that some of the courts with the biggest backlogs are “courts that service low-income New Yorkers, and certainly other communities of color.”

Assigned counsel attorneys have not received a permanent pay raise in New York State in nearly 20 years. Three lawsuits have been brought against the state requesting that their pay be more than doubled to around $160 per hour – that’s what the rate is for federal assigned counsel.

One of those lawsuits has resulted in a temporary pay increase for assigned counsel working in New York City.

Last year, Hochul refrained from including an 18-B pay increase in the budget citing the ongoing litigation.

“I support fair wages for them,” the governor said in April. “Fair raise, they absolutely need this, the work they do is so critical, I support that. But there is still outstanding litigation and we are going to resolve it.”

Though none of the suits have been resolved – one was filed as recently as December – the governor has changed her tune, including a rate increase for some 18-B attorneys.

On Tuesday, Amaker called for additional funds from the legislature and called on them to help codify a gradual pay increase for the attorneys going forward, something one of the lawsuits calls for and which federal assigned counsel receives.

Patricia Warth, the director of the New York State office of Indigent Legal Services, said the proposed funding does not go far enough.

“I'm pleased to see that the executive has proposed an increase in the rates and her proposed budget, but there's some fundamental flaws with her proposal,” Warth said.

Warth said that the funds need to be paid for by the state – currently, 18-B attorneys are paid by the locality.

She also said that the cap on pay should be eliminated. Under the proposed increase, it’s unlikely that an assigned counsel attorney could make it through a two-week trial without having their pay capped.

“It encourages attorneys to compel their clients to plead guilty because trials take time and resources,” Warth said. “And if you're not going to be paid, you're not going to want to take your case to trial.”

The governor’s budget also distinguishes pay increases for downstate attorneys – who would be paid $158 per hour – and upstate attorneys – who would be paid $119 per hour. Warth suggested eliminating that distinction, as well.