In New York, a shortage of judges leads to judges being shuffled from court to court.
Imagine being admitted to the hospital for heart surgery and meeting your surgeon for the first time. “I’m actually an orthopedist,” she says, “but I watched a few of these bypasses on YouTube videos, and they tell me it’s all just cutting and sewing.”
Sounds impossible, right? But the legal equivalent of this takes place hundreds of times a day, every day, in New York City Criminal Court. It’s been happening for years. And the state Legislature seems particularly uninterested in implementing what would be an easy fix.
Some background is required. In New York City, criminal felony indictments — those punishable by more than a year in prison — are heard in Supreme Court by elected Supreme Court justices. Misdemeanor cases are handled in Criminal Court by appointed Criminal Court judges. Criminal Court judges also handle arraignments for unindicted felonies. (Entire treatises have been written about the relative merits of appointed versus elected judges. In New York, Supreme Court justices have been elected since the 1840s. Appointed Criminal Court judges were the result of a major court restructuring in the 1960s.)
But the number of Supreme Court Justices is capped by the state Constitution, and there simply aren’t enough of them to oversee New York City’s felony docket — not even with the number of some felony cases falling over the last few years. For years, the state’s Office of Court Administration (OCA) has dealt with this problem by “elevating” experienced Criminal Court judges to the position of acting Supreme Court justice. Not surprisingly, this works well. It turns out that Criminal Court judges, many of whom are former prosecutors and criminal defense attorneys, are good at handling felonies: Having tried felony cases earlier in their careers, most of them are well versed not only in criminal law, but in criminal trial tactics and evidentiary issues. (Disclosure: I was one of these “elevated” judges.)
So far, so good. But problems travel downhill. The elevation of Criminal Court judges results in judicial vacancies in Criminal Court that need to be filled. But the number of Criminal Court judgeships is capped by statute. OCA must deal with this situation by assigning elected Civil Court Judges to sit in Criminal Court. The result is just selling the roof to pay the mortgage.
Most of these Civil Court judges — who were elected to handle civil disputes involving amounts under $50,000 — have no prior criminal law experience. After only a few weeks of training, they find themselves setting bail on defendants accused of violent crimes, deciding complex constitutional search-and-seizure questions, and sentencing people to jail terms of up to one year.
And here’s the startling part: In July, more than half of the judges sitting in New York City Criminal Court were re-assigned Civil Court judges; in the Bronx, where I sat from 2018 to 2025, 11 of the 17 judges assigned to Criminal Court were Civil Court judges.
It’s tempting to say, “it’s just Criminal Court” — meaning, these are only misdemeanors. But Criminal Court is hugely important. In Supreme Court in New York City in 2025, there were 13,908 new felony cases. That same year in Criminal Court, there were 129,899 new misdemeanors. For many defendants, Criminal Court is their first — and hopefully only — exposure to the criminal justice system. They deserve to have their cases heard by judges versed in the criminal law, and their lawyers deserve the opportunity to have their often complicated and nuanced arguments heard by such judges.
And it’s not fair to the Civil Court judges themselves. They do their best, working hard to learn and understand criminal law, and many of them wind up becoming good Criminal Court judges. But the first months are rough. They’re learning on the job, making serious decisions that have dramatic impacts on people’s lives, and applying law in which most of them weren’t trained. This isn’t what they signed up for.
Things get even hairier on the weekends, when — again due to the shortage of judges with criminal experience — acting Supreme Court justices who work during the week on the civil side, handling complex commercial disputes, divorces and tort cases, are pressed into service handling arraignments in Criminal Court. Many of these judges not only have no criminal law experience, but haven’t even had the benefit of the slapdash criminal training received by the Civil Court judges sitting daily in Criminal Court. Nevertheless, they are called upon to make sure newly arrested defendants are properly advised of their constitutional rights, take guilty pleas on misdemeanors, and make the most consequential pre-trial decision in a criminal case: whether to hold the defendant in jail pending trial. I’ve watched as the clerks and court officers try to teach these judges how to perform these functions on the fly. It’s not pretty.
Interestingly, New York civil rights groups have criticized the Trump administration for playing the same type of shell game with immigration judges. To deal with backlogs caused by the administration’s mass deportation agenda, it has reassigned military lawyers to serve as temporary immigration lawyers. The civil rights groups argue — correctly — that the lawyers lack the necessary specialized knowledge of immigration law, and that their assignment will, in the words of the New York City Bar Association, “predictably lead to inconsistent rulings, fundamental legal errors, and flawed decision-making…” Indeed, to effectuate this change, the administration first had to waive a requirement that immigration judges have 10 years of immigration law experience.
There are several solutions to what the City Bar Association has described as New York’s “robbing Peter to pay Paul” situation, none of which the Legislature seems eager to adopt. One simple fix would be to statutorily increase the number of Criminal Court judges the mayor could appoint. But this will never happen, because the legislators love judicial elections, in which, infamously, party leaders control the nominating process.
The Uncap Justice Act, which would amend the state Constitution to lift the cap on the number of Supreme Court Justices, is languishing in the Legislature, having failed to advance in the last two sessions. Comprehensive judicial reform, which was proposed by former Chief Judge Janet DiFiore and would have streamlined New York’s byzantine court structure, fell victim to strong opposition from judges’ groups.
As serious as the problem is, the Legislature should not do what it did with bail reform: Pass legislation as part of a cram through in the annual budget process, which resulted in ill-considered and internally inconsistent law. Instead, it should hold hearings and take testimony from judges, lawyers and court administrators to come up with a solution to a very basic problem: how to have enough judges with the relevant experience to hear cases in each court in the system. The current system is unfair to everybody involved.
