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Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type


Publication Date

Winter 2023




Northwestern University School of Law




Scholars have examined judiciaries as organizations with their own culture and considered how this organizational culture can form a significant impediment to the implementation of reforms.22 There is a strong connection between judicial culture and a reform’s ability to accomplish its stated goals. Some go so far as to state that most reforms will fail because of the difficulty in altering judicial culture.23 These studies sometimes focus on legislators misunderstanding the actual effects of legislation when it was drafted, or on the failure to account for particularities in a law’s implementation by undervaluing the fragmentation, adversarial nature, and lack of resources of trial courts.24 Scholars have focused on overlooked consequences or unexpected effects that the drafters failed to properly account for.25 But as discussed by Malcolm Feeley, reforms also fail due to the judiciary’s intentional mis-implementation of the legislation. In such instances, reforms fail not because those who planned the reform or those who wrote the law did not account for certain unintended consequences, but because the judges who must give force to the reform do not agree with the intended consequences.26

This paper seeks to build on the scholarship of judicial organizational culture and examine a significant example of the phenomenon of judicial resistance in the context of New York’s 2020 criminal legal reforms. These reforms implicate the legislature’s curtailment of judicial discretion to accomplish the reform’s goals. This provides a unique opportunity to identify intentional judicial obstruction, and how and why it is carried out. Placing the judicial response within the scholarship would be illuminating in reexamining Feeley’s and others’ theses and in expanding the premises to current real-world reforms. This examination reveals how the New York judiciary’s organizational culture makes it particularly susceptible to narratives concerning public safety, which forms a significant motivation for judicial obstruction to reforms.

Part I creates a framework to define whether these judicial interpretations are obstructionist and to provide some background on both the nature of obstruction and its possible causes. Part II examines specific examples of when judges circumvented the reforms and looks to New York’s judicial culture to see if it can account for how and why this obstruction occurred. Part III examines whether any larger lessons or solutions can be learned for future criminal legal reforms to anticipate such impediments and preemptively address them.

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