The Court of Appeals (photo: Mike Groll/Governor's Office)
Governor Kathy Hochul’s appointment of Judge Rowan Wilson to be the new Chief Judge of the New York Court of Appeals was widely praised by practitioners, bar associations, and legal academics, who hailed the selection of a brilliant and respected jurist to be New York’s first Black Chief Judge.
But criticism at Wilson’s confirmation hearing centered on a recent majority opinion he wrote in People v. Regan, in which the Court of Appeals overturned a rape conviction on speedy trial grounds. While the facts of this case are tragic, this criticism misunderstands the reasons behind the decision, the importance of the constitutional right at stake, and the effect on future prosecutions.
The Regan case turned on the New York Constitution’s right to a speedy trial, which protects both individual and societal interests. Speedy trials protect defendants from having an accusation hanging over their head for years while they await their day in court. They are also better for victims, for the truth-seeking functions of criminal courts, and for public confidence in the court system. A long-delayed trial is more likely to result in the wrong verdict, less likely to deter criminal behavior, and less likely to satisfy the demands for justice of those harmed.
The right to a speedy trial exists more in theory than in practice, as Kalief Browder’s infamous case illustrates. Browder, a teenager from the Bronx accused of stealing a backpack, spent over three years on Rikers Island awaiting trial, most of it in solitary confinement, before his case was finally dismissed—without a court finding any violation of Browder’s right to a speedy trial. Despite some policy changes, New York’s speedy trial laws still often fail to ensure timely justice, unless there’s proof of egregious negligence by the prosecution.
But egregious negligence is exactly what happened in Regan. After a woman reported she had just been raped by an acquaintance, whom she identified, police administered a rape kit and interviewed the acquaintance, who denied the allegation. Prosecutors then took over three years to obtain a warrant to get DNA from the accused and another year to indict him. For most of that time, by their own admission, prosecutors were doing nothing on this case: not investigating, not interviewing, not even thinking about it. If you’ve ever reported a crime to police and then sat around waiting while it felt like nothing was happening, that’s exactly what happened here—not just for weeks or months, but for years.
New York courts apply a five-factor test to decide when the constitutional speedy trial right has been violated. Applying this test in Regan, four of the six Court of Appeals judges found that the yearslong delay—which the prosecutor’s office could not offer any explanation for—violated the state constitution, so the case must be dismissed. Notably, the majority joining Wilson’s opinion included the Court’s most moderate judge and one member of the three-judge conservative bloc, Judge Anthony Cannataro. Even the District Attorney who lost the case signaled his acceptance of the decision, telling the New York Times, “The facts are so specific and inarguable that I don’t know that you’re going to run into a situation like this down the line.”
Nevertheless, misconceptions about the decision have abounded in recent days. An op-ed in the Daily News described the decision as a break with precedent “requir[ing] courts to give weight to whether the defendant had been prejudiced by delay.” In fact, the Court gave weight to that factor but found it outweighed by other factors, particularly the years in which the prosecution did nothing and the lack of any explanation for this inaction.
The op-ed also complains that the Court could tackle the problem of inexcusable delays by police and prosecutors in other ways, like task forces or “reform initiatives.” But this was a court presented with a case to decide; it was not an option to say “The Constitution was violated here, but we can just overlook that and set up a task force instead.” As Wilson wrote, “Although the constitutional guarantee of a prompt prosecution is not the sharpest instrument by which to address the chronic lackadaisical approach to reports of sexual assaults, affirming the prosecutorial conduct here would establish a precedent—which would apply in every future rape and sexual assault case—that the [prosecution] can delay investigation of a serious crime for years without any explanation or excuse."
The Regan decision should make it easier, not harder, for victims of sexual assault to see their attackers swiftly tried and convicted. Contrary to Republican Senator Steven Rhoads’ claim during Wilson’s floor vote, if someone walks into a police precinct today to report a rape, it doesn’t matter if it occurred last night or 50 years ago: law enforcement can investigate and bring charges. What Regan means is that they actually must do that, and promptly, rather than stick the report in a drawer and forget about it for years. By declining to condone prosecutorial negligence, Wilson’s opinion made clear that swift justice isn’t just a nice idea but a constitutional requirement. Victims, the accused, and every one of us deserves no less.
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Sam Feldman is an appellate public defender in New York City. On Twitter @srfeld.
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In the State Senate (photo: Edwin J. Torres/Mayoral Photo Office)
Does voting by mail in New York really require a constitutional amendment? Our new analysis says it may not. First, our perspectives on this important issue:
Deborah: I love voting by mail. I can see the ballot in advance, research the candidates and propositions, then cast my ballot without even leaving home; I can check whether my ballot was accepted on the Board of Elections website. Currently, 35 states allow anyone to vote by mail.
But in New York, the only way to vote by mail is to qualify for and request absentee ballots each year. Why?
Jim: Throughout my 32 years in the New York Legislature, we believed that enacting no-excuse-needed mail-in voting required amending the New York State Constitution. This is not easy: two successive classes of both houses of the Legislature have to pass the proposal each term just to put it on the ballot, where voters approve or disapprove it. Nevertheless, I introduced a bill for the amendment and it passed in one house before I retired; it finally appeared on the ballot in 2021 as Proposition 4. The measure failed, but commentators observed that not only was it an off-year election, but supporters didn’t do much at all to counter a well-organized opposition. So the vote was not conclusive, but left us back where we started.
Since the amendment process is so long and unpredictable, we wondered whether an amendment is actually needed. After studying court decisions from other states, we’ve concluded that mail-in voting is in fact compatible with the New York Constitution.
We summarize our analysis below, in the hope that New York state legislators, justices, and others will look at our Constitution with fresh eyes.
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The key parts of the state constitution are Article II, Sections 2 and 7:
Article II, Section 2: Absentee voting
The legislature may, by general law, provide a manner in which, and the time and place at which, qualified voters who, on the occurrence of any election, may be absent from the county of their residence or,...may be unable to appear personally at the polling place because of illness or physical disability, may vote and for the return and canvass of their votes.
Article II, Section 7: Manner of voting; identification of voters
All elections by the citizens, except for such town officers as may by law be directed to be otherwise chosen, shall be by ballot, or by such other method as may be prescribed by law, provided that secrecy in voting be preserved…
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Section 7 seems to give the Legislature the power to enact any reasonable method of voting, as long as one’s vote stays private. But New York legislators believe that Section 2 restricts allowable voting methods: that “absentee voting” means any voting that is not done in-person, and, crucially, that any voter not mentioned in Article 2 is forbidden from absentee voting.
There are three other nearby states with similar constitutional language that have enacted mail-in voting laws without a constitutional amendment: Massachusetts, Pennsylvania, and Delaware. The laws were upheld by the supreme courts in Massachusetts and Pennsylvania, and although the Delaware law was ultimately rejected by its supreme court, the judge writing the lower-court decision encouraged the supreme court to uphold the mail-in voting law. (The text of most of these decisions is available via links at the Brennan Center for Justice.)
In essence, New York legislators are using the logic of the maxim “expressio unius est exclusio alterius” (“the expression of one thing is the exclusion of the other”); in other words, the existence of a clause granting rights to some implies that all others do not have those rights.
Is this logic justified? Article 2 does not mention any absentee voting methods, nor does it say that only the listed voters may use this type of voting, yet that is the conclusion from expressio unius.
In Massachusetts, Article 45 (in the Amendments section of its constitution), is analogous to New York’s Section 2 on absentee voting. The Massachusetts Supreme Court explicitly rejected this logic when upholding the state’s mail-in voting law (VOTES Act, June 2022 - see “Lyons” August 2022, p. 27-28).
Moreover, the court warned that “Cases from other jurisdictions have consistently counselled that the maxim [expressio unius] should be applied with even greater caution when interpreting a State constitution, especially where its application would act as a restraint on the plenary power of the Legislature.” (p. 28)
Pennsylvania’s constitution has language similar to New York’s: a clause giving the legislature the power to enact voting methods, and a clause to provide for absentee voting: Article VII, Section 4: Method of elections; secrecy in voting; and Section 14: Absentee voting.
As in Massachusetts, the Pennsylvania Supreme Court reversed a lower-court decision, and ruled that its mail-in voting law (PA “Act 77”, 2019) was constitutional (see “McLinko” August, 2022).
At the heart of the Pennsylvania decision is the court’s belief that, “To be a restraint on the General Assembly’s law-making authority, it must be explicitly set forth or necessarily implied in the Constitution. There is no restriction – other than the maintenance of secrecy – in Section 4 on the methods of election the General Assembly may establish.” (p. 69)
The Pennsylvania court, as in Massachusetts, rejected the interpretation of the absentee-voting clause (Article VII, Section 14) as a ban on mail-in voting for all voters not listed, instead holding that its function is to protect the designated voters: “Whether or not Act 77’s universal mail-in provisions survive future legislatures, [Section 14] guarantees the constitutionally designated qualified voters a way to exercise their franchise regardless of their location on Election Day.” (p. 75)
Lastly, Delaware, which has similar constitutional language (Article V, Section 1: Time and manner of holding general election, and Section 4A: General laws for absentee voting),
also enacted a Vote-by-Mail Statute without a constitutional amendment (Senate Bill 320, 2022). However, its Supreme Court upheld a lower Chancery-Court ruling against the statute (see “Higgin”, December, 2022).
The Delaware Supreme Court acknowledged that the lower court had encouraged it to overturn the ruling (p. 5) and the grounds for the decision can be boiled down to one word, tradition: ”In diverging from the approach taken in Pennsylvania and Massachusetts, we do not insinuate a failure of wisdom or analysis on the part of our learned counterparts in those states; indeed, had our historical record and constitutional tradition not pointed us firmly in the direction we have taken, we might very well have followed their lead.“ (p. 61)
The written decisions from Massachusetts, Pennsylvania, and even Delaware provide good logical arguments why mail-in voting should be constitutional in New York. The key question is whether tradition should prevail over logic. Currently, tradition is winning. But now that we have the infrastructure for widespread, secure voting by mail, is that a good enough reason to delay giving voters this valuable option?
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Jim Brennan served in the New York State Assembly, 1985-2016, representing parts of Brooklyn and writes a blog on policy and politics. Deborah Franzblau was a mathematics professor at CUNY/College of Staten Island, 1996-2021, and lives in Rockland County. On Twitter @JimBrennanNY.
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Mayor Adams hosts faith leaders (photo: Benny Polatseck/Mayoral Photography Office)
Mayor Eric Adams recently made headlines for suggesting in a speech that the City of New York would benefit from there being no separation between church and state. On CNN’s State of the Union some days later, Adams clarified his remarks, stating that “Government should not interfere with religion, and religion should not interfere with government.” Though this walk-back did not quell the controversy, it did highlight the precariousness of navigating religion in public life.
Some background on Adams’ beliefs and the broader issue of religion and politics gives context to the mayor’s comments. Most people in my corner of the political world know me for my work as a political consultant and more recently as a political analyst. Many do not know that I am also an ordained minister and that for 16 years I pastored several congregations. My graduate training was in the field of theology; I studied at New York’s Union Theological Seminary under Dr. James Cone, the founder of the Black theology of liberation movement in the United States.
Here, I put on my theologian’s hat and examine Mayor Adams’ recent postulations and their significance for the broader scope of religion and politics.
To begin to understand the mayor’s recent remarks it helps to know his religious background. The mayor was raised in a Church of God in Christ (COGIC) congregation. COGIC is a Pentecostal denomination, and a predominantly Black denomination. In fact, it is the largest Pentecostal movement in the United States. The importance of the Black church tradition on his public service has been previously acknowledged by Mayor Adams. In a late 2021 campaign interview with Gotham Gazette, Adams declared, “I would not be who I am if it wasn’t for the Black church, as a police officer and now as the future mayor of the city.”
COGIC’s reach within the Black community is extensive. The Rev. Al Sharpton was ordained in COGIC, under the leadership of Bishop F.D. Washington, an extraordinary preacher and ecclesial leader. COGIC also counts among its most widely familiar members Denzel Washington (whose family has roots at the Allen Memorial Church of God in Christ congregation in Mount Vernon, NY), Stevie Wonder, and Chris Tucker.
As a Pentecostal denomination, COGIC embraces a theology that is fairly common within such a Christian tradition. It centers the Bible as the Word of God, and embraces many biblical narratives as literal facts, void of any mythic import. It focuses on personal piety; and the belief that God’s Spirit is not a reality aloof from human affairs but is in fact often and consistently at work in individual lives and capable of transforming broader society. This same Spirit is active in the empowerment and uplifting of the most vulnerable.
The significant communal involvement of many Pentecostal and Evangelical churches in underserved communities around our city and state is therefore not surprising. Many of the organizations that have worked on housing, drug rehabilitation, and food insecurity issues, for instance, and that have done so with little or no government funding, have been church-led. To understand Mayor Adams’ belief that his election is part of God’s purpose for New York is to be aware of this commitment and involvement.
Pentecostals firmly believe in the ever-present reality of God in our historical circumstances. Their fervor for spreading the Gospel (evangelism) is undeniable, including the idea that evangelistic efforts should lead not only to the salvation of souls but also to the transformation of society. Hence, within the Pentecostal tradition it is not uncommon to hear comments like those of Mayor Adams about the necessity of re-instituting certain practices of yesteryear, like prayer in schools.
Inviting God’s Spirit into the mundane, Pentecostals believe, will lead to the needed transformation of society. For Pentecostals, much of the content of Mayor Adams’ remarks is familiar. Most of them would support his declarations, though some might perhaps take umbrage at the initial remark on the problematic nature of separation of church and state, that Adams subsequently walked back.
The extent of Mayor Adams’ dependence on Pentecostal thought and practice may end at the idea of God’s continual involvement, and our invitation of God’s involvement in our affairs. For Adams departs from broader Pentecostal practices when it comes to some of his apparent religious practices. For instance, Adams’ collection of Buddhist statues and his belief that “’a special energy’ comes from New York since it sits on a store of rare gems and stones” would certainly be considered weird if not heretical by most, if not all, Pentecostals.
In any event, it is clear that the influence of Adams’ COGIC background continues to permeate much of his worldview.
Adams, considered a moderate-to-conservative Democrat, is not the only elected Democratic official whose political stances are influenced by certain Christian sensibilities. While in New York we can think of a number of former and current elected officials who fit this bill, we can also point to a more national figure who has earned the praise of progressives and moderate Democrats alike.
Senator Reverend Raphael Warnock was raised in the Holiness Church tradition. For him, too, the utterances of Mayor Adams are familiar. Warnock’s parents were both pastors and he is also a pastor, serving since 2005 as senior pastor of Ebenezer Baptist Church in Atlanta. Like me, he is a graduate of Union Theological Seminary and a former student of Dr. Cone, referenced above.
To understand the influence and impact of Warnock’s religious sensibilities, one need only revisit his victory speech last November. Warnock’s speech was filled with vivid religious language. On a national platform, he unapologetically drew on the language of faith that nourished him and that continues to propel his work. After thanking Georgians, Warnock proclaimed the words that countless Christians have uttered through song and sermons — “to God be the glory!”
“I have often said that a vote is a kind of prayer for the world we desire for ourselves and for our children. It is faith put in action. It is the sober recognition that we pray not only with our lips but with our legs,” the Senator proclaimed, employing the cadences of the preacher that he is.
Again not shying away from articulating his faith, in another instance Warnock described democracy as the fulfillment of a greater spiritual reality: “I believe that democracy is the political enactment of a spiritual idea. The notion that each of us has within us a spark of the divine…We all have value. And if we have value, we ought to have a voice.” Accentuating this idea, Reverend Warnock declared what guides his own political philosophy—the idea that “each of us has within us a spark of the divine, that we were created in imago Dei, in the image of God."
Despite some Christian trajectories that are similar to Adams’, the theological and political stances of Warnock are in fact quite distinct. As a Baptist minister, Warnock fiercely defends the principle of the separation of church and state, a stance that Baptists consider a key Baptist “distinctive,” the idea of which goes back to their origins in England and Holland and were brought over to the beginnings of the U.S. through leaders like Roger Williams.
Furthermore, some of Warnock’s progressive stances are in fact driven by a particular theological posture, one indebted to the liberation theology movement. At the heart of this movement is the idea that the plight of the most vulnerable is one that deserves our priority response.
While clearly there are differences between Adams’ and Warnock’s worldviews, one cannot deny that faith has and continues to play a pivotal role in their own political philosophies and work, including as elected officials. And they are not shy about expressing this very fact.
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Eli Valentin is a political analyst and author of the forthcoming book, Reinhold Niebuhr: A Political Life. On Twitter @EliValentinNY.
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