The Court Watch Movement Wants To Expose The ‘House of Cards’
Prosecutors and judges across the country are starting to feel eyes on them.
In a New York City criminal courtroom on a hot June day, a familiar ritual was unfolding: a middle-aged judge sat on a mahogany platform above the rest of the courtroom, the words “In God We Trust” lettered in silver over her head, as mostly Black and Latinx people paraded before her to plead their cases. Some were accompanied by lawyers; most stood next to a public defender who argued in favor of their release. The majority of hearings were completed in a couple of minutes.
Louise Williams, a 27-year-old white woman wearing a nondescript black T-shirt, jeans, and round glasses, her blond hair held back in a clip, sat among the defendants’ girlfriends and siblings assembled on benches in the back of the room. But she wasn’t there as a supporter. She was there to watch.
She’s part of a new program called Court Watch NYC, launched in February to send volunteers into the city’s courtrooms to observe what happens, gather data, and shine a light on how the system works. She did volunteer work in college with people once they got out of prison, but court watching allows her to “see how it all starts,” she said.
Often she discovers there’s much more to a case than the charges suggest. A frail Black woman who walked slowly with a limp was charged with assault. Yet when the details of what happened were discussed in the courtroom, it became clear that she was the victim—assaulted by someone using her own cane. She reported what happened to the police. She was arrested despite never having been arrested before.
A Hispanic man with tattoo-covered arms faced charges of possessing stolen property and trespassing. He stole boxers and T-shirts from a store while struggling with a heroin addiction that he had tried to overcome by voluntarily enrolling in a detox program.
A young Hispanic woman with a conspicuous black eye behind her glasses was charged with assault but said she was the one being abused—slapped in the face and kept from leaving her apartment. The evidence against her came solely from the man she said was abusing her. She had a 7-year-old child and a job to attend to. The prosecutor still requested she be given a bail of $1,500. The judge decided instead to release her without requiring she pay any money, but required her to come back the next day and issued an order of protection against her.
Williams noted of her observations: “They say ‘petty larceny and trespassing,’ you say, ‘OK, he did something.’ But when they read the account … What would it have done to put him in jail? What would that accomplish?”
There was little discussion of whether any of the defendants could afford to pay some of the bail amounts requested by the prosecutor: $10,000, $15,000, $30,000.
Court watching is tedious and sometimes uncomfortable work. The benches are hard. The room is unnaturally cold. There are plenty of rules and regulations, such as a ban on using cell phones of any kind. But it has been eye-opening for Williams.
“I had the same assumptions a lot of people have,” she said. “I thought of bail as being a punitive measure. I thought that’s what it was intended for.”
But then she started watching what happens inside courtrooms. The judge that day let most people go without paying bail. That was unusual; a different judge she watched recently let “absolutely no one” go for free except an older white woman. (A recent analysis conducted by FiveThirtyEight found that bail-setting practices vary enormously by which judge oversees the first arraignment.)
Williams is far from the only New Yorker whose idea of the court doesn’t match reality, said Nick Encalada-Malinowski, civil rights campaign director at VOCAL-NY, one of the organizations behind Court Watch NYC.“There is just in general a misunderstanding by the public of how the criminal justice system works and what on a day-to-day basis it actually looks like. … They see that we have a progressive mayor and they assume that everything is pretty fine,” Encalada-Malinowski told The Appeal.
Only a handful of the cases Williams watched that day involved violent acts; most were for drug possession and larceny. Many appeared to be acts of desperation and poverty. “It’s not what I thought it was,” she said. “This room doesn’t address so many of the issues that are being presented.”
In April 2017, as he was running for election, Brooklyn District Attorney Eric Gonzalez announced that his office wouldn’t seek bail “in most misdemeanor cases” with “certain exceptions.” (The Manhattan district attorney, Cyrus R. Vance Jr., joined him in January, directing his assistants not to request bail for nonviolent misdemeanors with certain exceptions.) Yet the Brooklyn Community Bail Fund continued to receive many requests from people who needed help. “We were still paying a lot of bail, so we were like, ‘Hey, what’s going on?’” said Rachel Foran, managing director of the bail fund. So the organization decided—along with VOCAL-NY and the 5 Boro Defenders—to see for itself.
Since launching in February, the groups say they have watched over 200 court shifts, collected data on 544 cases in its first month alone, and trained more than 300 watchers. They have people watching first appearances, when bail is typically set, six days a week in Brooklyn and Manhattan.
In May, Court Watch NYC released a report detailing some of its findings. The majority of cases it observed were nonviolent—charges like drug possession or driving without a license. Just 13 percent of cases were assaults. The vast majority of cases involved people of color, particularly Black and Latinx.
The group also found that whether the district attorney requests bail has a big impact on whether a judge will set it. Every time the DA requested that a person be released on his or her own recognizance, the judge granted it.
This is the kind of data court watching can yield. But even so, they would rather not have to do it at all.
“It’s really powerful and great that we have this opportunity to go into court and collect this data,” Encalada-Malinowski said. “It’s also a reflection of the failures of city and state government … that they don’t even require basic, basic data.”
Keeping prosecutors’ promises
The idea of court-watching isn’t unique to New York. It’s not even all that new. But it’s having a resurgence thanks to the push for criminal justice reform. Putting eyes in the courts is a crucial way to ensure those reforms are actually having the promised effect, court watch organizations told The Appeal.
“Right now we have this really powerful national movement for bail reform and a lot of terrific momentum,” Sharlyn Grace, the co-executive director of the Chicago Community Bond Fund, pointed out. “Because of that public pressure, we have systems that are trying to make changes and say that they’ve met the demands of the people.”
In response, the job for advocates is transforming from demanding reform to holding these systems accountable.
“For elected officials, all of the benefits of adopting a reform or championing a reform happen when it’s announced,” Grace explained. “Very rarely do people come back a year later and say, ‘How is this actually going?’” Court watching keeps the pressure on to follow through, she said.
Similarly, Court Watch MA recently launched in Massachusetts after the state’s Supreme Judicial Court issued a ruling last August that found judges have to set bail amounts that are affordable for defendants. Experiences on the ground indicated that judges and district attorneys were “not following the spirit” of the decision, said Atara Rich-Shea, director of operations at the Massachusetts Bail Fund. Yet there is no publicly available data on who is being prosecuted for what offenses. The court watch program’s main goal is to collect data on what is actually happening since the decision. The program is now operating in five counties.
Next, Court Watch NYC plans to focus on drug prosecutions, especially after Vance announced in May that his office would decline to prosecute marijuana possession and smoking cases with “limited exceptions” (after the Brooklyn DA at the time made a similar move in 2014). The plan is to start watching the courts this summer with a particular eye on drug prosecutions before Vance’s new policy takes effect Aug. 1 and then afterward to see if anything changes. Court watchers now fill out an additional form along with the old ones with questions pertaining particularly to drugs, such as whether the charges are related to residue or paraphernalia and whether an undercover officer or informant was involved.
The data “will allow us to say bigger things about how the drug war is still being fought in the city against our most marginalized communities,” Foran, the Brooklyn bail fund managing director, said.
A national collaboration
Each new court watch program leans on the experience of those that already existed. “People who run bail funds around the country are always in conversation with each other,” Rich-Shea said. But each one has to be tailored to the particular community and issue where it’s based. “Every court watch program has to be unique because every court system is its own special Kafkaeqsue hellscape.”
“It’s really new, this sort of mission-driven court watch where it’s not just data collecting,” Rich-Shea added. “We’re all learning from each other what works and what doesn’t.”
New York City leaned heavily on the work that had already been underway in Chicago for some time. “The folks in Chicago led the way… creating the process and the nuts and bolts of this is what a successful program looks like,” said Encalada-Malinowski. Chicago advocates had a template for how to recruit volunteers, how to train them, even down to how to design the forms. “It’s not that the forms will be the same and that the volunteers will be the same and not that the goals will be the same, but these little pieces of this is actually how you put this together and how to do it which is really valuable.”
Court watching has existed in fits and starts in Chicago since at least the 1970s, when the League of Women Voters monitored misdemeanor courts. “There’s been a lot of different court watching efforts focused on different things here throughout the years,” Grace said. But the Chicago Community Bond Fund decided to restart the effort last summer after the chief judge of the Circuit Court of Cook County, which includes Chicago, issued a ruling saying that judges have to consider whether a defendant can afford bail before it’s set. “We wanted to know what impact they were going to have,” she said. “We know there’s a big difference to change a policy on paper than to change a practice in courtrooms.”
The trouble is that Illinois courts aren’t subject to Freedom of Information Act requests, so there is no way to get information other than going to court and observing firsthand. “Part of our role as invested community members is to say, ‘It is better than it was, and we haven’t gone far enough, and it’s not good enough yet,’” she said. “In order to do that we have to know how big that gap is between where we want to be where and where we are. And that requires data.”
But, the organization argues, it shouldn’t have to be doing any of this data collection to begin with. “We shouldn’t have to rely on the organizing and willpower of people to know what’s happening,” Grace said. It takes a huge amount of effort: people volunteering their time to sit in court and record what happens on paper, others collating and analyzing the data that’s brought back, still others sifting through the data and creating reports. “The onus should be on the system,” she said. Still, since the Chicago group began court watching, more information about the numbers and demographics of people in jail has been made available online.
After Chicago, Court Watch NOLA in New Orleans is most likely the oldest and perhaps longest-running court watching program in the country, having been in operation for over 10 years. It started after Hurricane Katrina as part of a larger effort to reform the criminal justice system by providing oversight. “There was just such a calamity on the ground after Katrina that something had to be done,” said Simone Levine, the court watch group’s executive director. Her group started with the mission of addressing “efficiency and transparency problems in the court,” including how long cases got prolonged and how long people were being kept in jail before their cases were resolved.
It casts a wide net. “We monitor prosecutors, we monitor the public defenders, we monitor the sheriffs, we monitor the police, we monitor the clerk of court,” Levine said, “because we think everyone is a stakeholder in this process and we’re pushing everyone toward reform for us to have a healthy system.” And sometimes it has to wrestle with more fundamental issues than in some other states. One of its first battles was to simply get the public, including journalists and family members of the defendants, allowed into night court, where determinations about whether people will be released are made.
Court Watch NOLA takes the data it collects and publishes reports that include the organization’s own researched recommendations on best practices. One particular focus recently was prosecutors’ widespread use of arrests and sometimes fake subpoenas to compel victims and witnesses to testify.
“We work with judges and other stakeholders and say, ‘This is what we’re saying, it’s a real problem, here’s our recommendation about what you need to do, can you embrace it?’” Those that do embrace reform get commended; those that don’t will face a public campaign against them.
The power of visibility
The presence of an unfamiliar person with a notepad in the courtroom can also remind system actors they are being held accountable in real time. Court Watch NOLA strives to bring change and transparency simply by being present. “We’ve seen people incarcerated for failing to take a drug test when they have insisted that have gone to go take the drug test,” Levine said. But just as the person was about to be incarcerated again, “the judge sees us and then all of a sudden the defendant will receive an attorney … all of a sudden the defendant will have another opportunity to take the drug test.”
New York court watchers also say they want to be seen. “We believe that they should know that they’re being watched,” Foran said. It’s about “shifting power.” One important interaction, she said, is between district attorneys and court watchers on Twitter. After the announcement that district attorneys wouldn’t request bail in certain misdemeanor cases, Court Watch NYC’s Twitter account reported it was still happening. The district attorney’s office responded to say that those cases were exceptions to the rule. “That shows that they’re paying attention,” Foran said. It also illuminates the wiggle room in these policy reform announcements.
It’s a new interaction for everyone. Court Watch NYC has found that even though the courts are open, they are not necessarily accessible. On the day Williams was observing, many of the people who spoke weren’t miked, and even those who were were still difficult to understand. Court actors use case numbers and jargon that could be hard to follow. “I often miss the penal law or what they’re saying,” she said. Things moved quickly. At one point police officers stood in front of Williams, blocking her view of the proceedings. Encalada-Malinowski said, “The space is not super welcoming to any kind of public understanding of what’s going on.”
Court actors are still adjusting to being watched. “The court system in New York City is not used to any type of accountability at all,” Encalada-Malinowski said. Judges sometimes ask people sitting and taking notes who they are. “Each judge imagines the courtroom as their kingdom. They set the rules. What they say goes,” he said. But anecdotally, court watchers have found that judges and district attorneys notice when they are in the room and that “things seem to go better,” Foran said.
There are conversations underway in other cities about starting similar projects, and just as Court Watch NYC relied on the experiences of those who came before, they are paying it forward by sharing their insights. But, Foran warned, “Court watching is a tactic, like bail funds are a tactic.” It’s not an end in and of itself; the point isn’t just to send people into courts to experience what happens. “All of these things have to be specific to a particular place and should be leading toward something, oriented toward a focus area they’re trying to effect change in.”
Perhaps the most important outcome of court watching, though, is giving the public an understanding of what goes on inside the city’s courtrooms.
“The whole system is like a house of cards,” VOCAL-NY’s Encalada-Malinowski said. “It’s propped up on the reliance of the public’s false understanding of what’s happening. As soon as people really appreciate what’s happening, it will be forced to change.”