Court Bashing and Reality: A Comparative Examination of Criminal Dispositions at the New York Court of Appeals and Neighboring High Courts
Judges' Journal, Vol. 36, No. 1, Winter 1997
10 Pages Posted: 6 Jul 2008
In 1995 and 1996, the New York Court of Appeals, the state's highest court, was subject to the sort of partisan and tabloid excoriation which the judges and the judiciary generally in America periodically endure. New York's governor, Republican George Pataki, who had been elected the year before on a law-and-order pro-death penalty platform, embarked on a campaign condemning the Court of Appeals for being too liberal. The Court, all seven of whose members had been appointed by Pataki's defeated predecessor, Democrat Mario Cuomo, was publicly castigated for coddling criminals, caring more about criminals than their victims, being judicially active, creating new rights for criminals, etc., etc. - in short, the script commonly recited by politicians hoping to make political hay at the expense of an easily scapegoated judiciary. New York City's Mayor Rudolph Giuliani and other politicians soon joined Pataki, as did some New York City dailies including the Post, the Daily News, and even the Wall Street Journal.
The study reported in this article examines the accuracy of the claim made by Pataki and others that the New York court's criminal rulings were more liberal than those of any other state court in the country. (Pataki also charged that the court's rulings were even more liberal than the Supreme Court's [sic].) Professor Bonventre, assisted by then-student Judi DeMarco, reviewed the criticisms leveled by the Governor, other politicians, and the dailies. They then surveyed the decisions of the New York Court of Appeals on several different search and seizure issues on which the Supreme Court had established pro-prosecution, law-and-order favoring precedents in the Burger and Rehnquist eras. These Court of Appeals decisions were compared to the decisions rendered on the very same issues by the supreme courts of all five neighboring states: Vermont, Massachusetts, Connecticut, New Jersey, and Pennsylvania. The New York court was found to be in the center of those courts - i.e., more liberal than some, more conservative than others.
Keywords: New York Court of Appeals, state supreme courts, George Pataki, Judith Kaye, Vito Titone, Rudolph Giuliani, liberal court, coddling criminals
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