Cuomo’s Nominee to New York’s Highest Court Alarms Criminal Justice Reformers

Progressives are warning that the governor’s appointment of the Nassau County district attorney would intensify the court’s pro-prosecution bent.

Kyle C. Barry | June 7, 2021

Nassau County District Attorney Madeline Singas (DA Singas/Facebook)

This article originally appeared on The Appeal, which hosted The Political Report project.

Progressives are warning that the governors appointment of the Nassau County district attorney would intensify the court's pro-prosecution bent.

When Governor Andrew Cuomo nominated prosecutor Madeline Singas, the district attorney for Nassau County on Long Island, to serve on New York’s highest court, he framed her record as progressive, as though she were among the national wave of reform-minded prosecutors who’ve recently won elections in cities from Philadelphia to Los Angeles. He emphasized that she created “an Immigrant Affairs Office to focus on crimes against immigrants,” and “dedicated unprecedented resources to restorative justice work.” As a prosecutor, his statement read, “Singas has championed access to justice for all.”

But progressives do not see her that way. They are organizing to defeat Singas’s nomination, warning that Singas is more “tough on crime” than reformer, and would double down on the court’s punitive politics.

Singas is “part and parcel of the system that created the levels of incarceration that we have,” Alice Fontier, the President of the New York State Association of Criminal Defense Attorneys, who is also the Managing Director of Neighborhood Defender Service in Harlem, told The Appeal: Political Report. She describes Singas as a “law and order prosecutor.”

Other reform advocates and academics have echoed these concerns. Alec Karakatsanis, the executive director of Civil Rights Corps, called Singas’s nomination “alarming” and “dangerous.” In an open letter to senate leadership, more than 40 law professors expressed their concerns with Singas’s record and urged the lawmakers to not “rubber stamp” the nomination.

Such disconnect isn’t new. Cuomo has long frustrated criminal justice reform advocates, his rhetoric outpacing actual policy positions, which have ebbed and flowed based on shifting political winds and news cycles.

In the poetry of speeches and press statements, Cuomo has claimed the mantle of “progressive,” a leader who “stand[s] in solidarity” with those “demanding police reform, criminal justice reform, and racial equality,” while promising “sweeping” change. But the prose of policy details has been murkier. He vetoed improved funding for public defenders. He supported bail reform in 2019, but backed a partial rollback in 2020, during a pandemic, when jailing people posed a heightened risk of deadly disease. Cuomo signed a bill restricting solitary confinement this year but only after long opposing it, and he has been stingy with clemency. And efforts to earn his support for police transparency and accountability measures went nowhere until police officers killed George Floyd and Breonna Taylor, further raising the political salience of police brutality.

Cuomo’s judicial appointments have also set up a State Court of Appeals—New York’s highest appellate court with the power to shape legal rules governing large swaths of the criminal legal system, including policing—that has a decidedly pro-prosecution bent.

Cuomo has appointed each of the court’s members, “establishing a conservative majority that has obliterated the rights of criminal defendants,” Steven Zeidman, director of the criminal defense clinic at the City University of New York School of Law, wrote in Slate.

An opportunity to change the court’s balance of power emerged this year. There are currently two vacancies on the seven-member court, and there will be a third in December. What’s more, these vacancies consist of the court’s political center, leaving in place the two most conservative judges—former prosecutors Janet DiFiore and Michael J. Garcia—and the two most progressive—Jenny Rivera and Rowan D. Wilson. Cuomo’s appointments are going to decide the court’s majority for years to come.

Besides looking for progressive judges, Cuomo could have looked beyond the traditional pool of prosecutors and corporate lawyers and added judges with public defense experience to a court that has none. He could have, as Zeidman wrote, “assembled a new majority dominated by people who have demonstrated commitments to protecting people’s rights to be free from overbearing, arbitrary, and racist policing, and to rectifying a criminal legal system that regularly turns a blind eye to injustice.”

In betraying these opportunities, Cuomo’s two nominations so far have elicited a swift and incisive response. Alongside the prosecutor Singas, Cuomo named Anthony Cannataro, an administrative law judge with no experience representing people who face criminal charges.

Progressive advocates have focused their organizing on Singas, urging the state Senate, with its new Democratic supermajority, to oppose her nomination. The Senate has never rejected a Court of Appeals nominee in the nearly 45 years it has been tasked with approving the governor’s appointments, but the tide may be changing.

Jabari Brisport, a Democratic state Senator elected in 2020 with the support of the local chapter of Democratic Socialists of America, announced on Thursday that he would not support Singas's confirmation because it would be a “step backwards for criminal legal reform.”

Fontier agrees, saying that Singas “is entrenched in the law enforcement status quo of the criminal legal system, and the idea that she’s going to be able to shut that off [as a judge] seems pretty far-fetched to me.”

Fontier pointed to Singas’s decision to not prosecute the Freeport police officers who beat a Black man during an arrest in December 2019. A neighbor’s cellphone video shows officers, all white men, pull 45-year-old Akbar Rogers over a chain link fence, throw him to the ground, and then pile onto his back while tasing him and punching him in the head, face, back, and legs. At one point, four officers are on top of Rogers while he screams for help. When he says, “I can’t breathe!” an officer responds, “fuck you!”

Singas said that she was disturbed by the video, but that the assault on Rogers was “consistent with the officers’ training and departmental policies, making criminal charges against the officers unsustainable.”

Singas also resisted the milestone pretrial reform New York adopted in 2019, which was meant to lower pretrial detention and expand the requirement that prosecutors share discovery materials with defense counsel, warning that the measures as drafted by the legislature endangered public safety and put too big a burden on prosecutors. Singas is now first vice-president of the District Attorney Association of New York, the group that lobbies on behalf of state DAs and has a record of opposing criminal justice reforms.

Instead, Singas has promoted changes that would drive up prosecutions and prison sentences as solutions to the opioid overdose crisis. In 2015, she drafted and advocated so-called “drug-induced homicide” legislation that would have allowed prosecutors to charge heroin dealers with homicide in fatal overdose cases. Research shows that such laws, rather than targeting drug kingpins and large-scale traffickers, are often used to prosecute the friends and family members of users, sending surviving loved ones to prison. Many of these people are users themselves, selling drugs to support an addiction. Despite this heavy toll, there is no evidence that “drug-induced homicide cases prevent dealers from dealing or users from using,” Zachary A. Seigel and Leo Beletsky wrote in The Appeal.

“It’s that sort of gut reaction to more criminalization, more incarceration, that we find particularly troubling,” Fontier said.

Singas would bring this perspective to a court that, while sharply divided on criminal justice issues due to the presence of some dissenters, has issued consistently punitive rulings.

In recent years, DiFiore, the chief judge, and Garcia have led a conservative majority that favored the interests of police and prosecutors. According to Zeidman’s analysis, “in 2017, the court sided with the prosecution in 82 percent of the cases it heard,” with Garcia in particular ruling “in favor of the prosecution in 100 percent of the court’s non-unanimous cases.”

In just the last three years, a divided majority has decided that people convicted of certain sex offenses may be incarcerated indefinitely, even after completing their prison terms; affirmed broad police powers by allowing police to stop a motorist for a broken center brake light (with three judges saying that even if New York law doesn’t require a working center light, it was reasonable for officers to think that it does); and ruled that the state was not liable for a prison guard’s vicious and unprovoked beating of an incarcerated person, because the attack was “outside the scope of employment.” The conservative majority also prevailed in divided cases involving the right to effective assistance of counsel on appeal, and the right to speak at one’s own sentencing hearing.

In that sentencing case, Judge Rowan D. Wilson wrote in dissent that, in upholding the prison sentence of a man who had been silenced at his hearing, the majority was treating him like “an object,” denying him “the possibility of presenting a narrative of [his] life that goes beyond [his] worst acts.”

Wilson and Judge Jenny Rivera have been the most likely to dissent across these cases, arguing to protect the rights of people charged with and convicted of crimes. On occasion, they’ve been joined by Judges Eugene Fahey and Leslie Stein to create a slim liberal majority. In People v. Gordon, decided in February, the court ruled 4-3 that a warrant to search an entire residential “premises” does not entitle police officers to search cars on the property. Crucially, the majority explicitly invoked the New York state constitution: “We exercise our independent authority to follow our existing state constitutional jurisprudence, even if federal constitutional jurisprudence has changed,” the majority wrote, because “we are persuaded that the proper safeguarding of fundamental constitutional rights requires that we do so.”

Stein is the retiring justice whom Singas would replace. If she rules differently, Singas could further narrow the room for liberal majorities on the court. (Fahey will retire in December.)

This would have major consequences given the national context. A willingness by state courts to find broader protections in state constitutional provisions has heightened importance after former President Donald Trump reshaped the federal courts, including the Supreme Court. It can provide a path to protect or even expand civil rights beyond what conservative federal judges will recognize.

And if Singas is confirmed, she may accomplish as a judge what she failed to push through the legislature. The Court of Appeals is expected to soon decide whether current law allows prosecutors to charge heroin dealers with manslaughter when an overdose causes death. The case involves Richard Gaworecki, a 31-year-old man from Broome County who bought and sold small quantities of heroin for him and his friends to use. In one instance, he sold the heroin that killed one of his friends. Whether Gaworecki—and others in his position—can be prosecuted for his friends’ death has divided lower court judges.

The debate around Singas’s nomination comes amid a broader reckoning over the lack of professional diversity on the nation’s courts and how this shapes jurisprudence, favoring the status quo of privilege and power while hindering reform. President Biden has pledged to nominate more people with a background in public defense and civil rights law, and his early nominations bear the trace of that commitment.

With some exceptions, governors like California’s Gavin Newsom and Cuomo have not embraced this goal, however. And state advocates and lawmakers were already taking notice.

Last month, before Singas’s nomination, progressive state Senator Alessandra Biaggi wrote an op-ed pleading for more diversity of professional experience among New York’s judges. “For years, the Court of Appeals, like courts across the country, has not had representation from public defenders and civil rights lawyers, and has been dominated by former prosecutors at the state and federal level,” she wrote, leading to “a blinkered view of the law and who it is supposed to protect and serve.”

With several vacancies at stake, Biaggi urged Cuomo to abandon the traditional approach to judicial nominations and expand diversity.

“If he does not,” she said, “it is our duty to vote the judicial nominations down until the highest court in our state reflects the state itself, and I intend to do so.”