Monday, December 25, 2006

Judges, policies, and the law

[Note: I did a new post about the Pringle Hearing in DWI cases.]

One of the irritating things I've been noticing more and more lately is when a judge has a policy. The way I've seen it most is where there's this notion of "quality of life" offenses. One local judge I know had a policy where offenders had to do community service on such violations. I also know of a couple judges who have policies on prostitution crimes - in this case the only deal they'd accept is "plea to the charge," often with community service as a part of the deal. Another judge I know is "tough" on DWI cases -- imposing higher fines than other judges and refusing reductions that other judges would allow.

With all due respect to these judges (and despite what you might think I do respect them - they got elected and we all know how well I do in elections), judges do not make policy. If you want to make policy, run for City Council or the State Legislature.

The job of a judge is to uphold the law, and to help resolve disputes between the parties. If the DA and the defense lawyer have reached an agreement on a plea deal, it is not the role of a judge to refuse the deal because of that judge's policy.

That's not to say judges can never reject plea deals. But the reason for the rejection should be a discretionary one based on the facts of the particular case -- the defendant has a long criminal history and a child was endangered in this particular case -- that sort of thing. It should not be rejected because the judge doesn't like this particular offense. The legislature sets policy on offenses, not judges.

This takes me on a sidetrack to another thing that bothers me about some judges. Judges should follow the law. This is a problem I see mostly in the local courts, and rarely in the higher courts (such as County Court & Supreme Court). There was a New York Times series on the town and village courts, and this is the one area where I agree that the non-lawyer judges are more prone to error, though I see similar errors with lawyer-judges as well.

A good example of this is the "prompt suspension law" regarding DWI cases. In theory, when someone is charged with a DWI offense for a BAC over 0.08, the judge is supposed to suspend the defendant's license. There are a number of problems with this law, including simple due process concerns, the whole "innocent until proven guilty" thing, imposing a DMV administrative role on someone who's supposed to be a neutral magistrate, the fact that it was poorly written and so does not apply to out-of-state drivers, and more.

On the due process issue, the Courts have ruled that a defendant is entitled to a hearing (known as a Pringle Hearing) before the suspension. The general concept is "notice and an opportunity to be heard." My experience suggests this process is just not followed in any consistent manner across the courts. In one county the judges just ignore the whole thing and don't suspend. In many courts the judges suspend without giving the defendant notice or a hearing (this is one very good reason to hire a NY DWI lawyer right away).

I was just in one local court where a lawyer-judge suspended my client's license. I asked for a Pringle Hearing and was told we could have one in a few days, but my client's license was being suspended anyway. -- You're not supposed to suffer the deprivation until after you've had your hearing.

I then asked for a hardship privilege for my client and did everything required by the law but the judge insisted that we had to apply for it in writing, and he had a number of very specific requirements we had to include that are not mentioned in the law. Then after we had done everything that was asked, the judge disappeared and my client was unable to drive for a couple extra days.

And while I appreciate all the DWI fanatics seeking to keep us all safe from this dangerous maniac, please remember that the defendant is innocent until proven guilty.

But getting to my point, this judge did not follow the law. Your job is to uphold the law. If judges don't follow the law, they send a very bad message. The defendant has rights. Judges should respect those rights.

I have an appeal pending related to a previous post involving community service on a marijuana ACOD. Unlike the case I mentioned in that post, the judge here followed the DA's approach and insisted on community service as a condition of the ACOD. I remember distinctly approaching the bench and showing the judge the statute. CPL 170.55, the regular statute for ACODs, has a specific provision for community service. CPL 170.56, the statute for ACODs on marijuana cases, does not have that provision. I remember what the judge said about it: "It doesn't say I can't require community service." Well it doesn't say you can't impose the death penalty either, but you can't. This particular case is the intersection of a judge not only having a policy, but even worse, having an illegal policy. I happen to be very fond of this judge on a personal level and enjoy practicing in that court, but I think society would be a lot better off if judges followed the law and left policy-making to the legislature.
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