Monday, July 1, 2013 at 12:00 AM
Recent reports about state courts invariably highlight contention over how judges are selected and the unrelenting decline in court budgets. This report is no different. But behind the saga of inadequate court resources and the presence of big money, special interest influence and partisanship in the selection of judges, other significant stories are playing out. State courts are striving to innovate by applying the latest technology to the courthouse and courtroom. State courts also are looking for advice from new media experts about new ways to communicate with the public and improve court processes, as well as how to adapt those processes to ensure trials remain fair in a digital world. Evidence on the value of implementing procedural fairness as a mechanism for reducing recidivism was reinforced by a new community court evaluation.
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About the Authors
David B. Rottman is a principal research consultant at the National Center for State Courts in Williamsburg, Va. His current research concerns public opinion on the courts, the effectiveness of problem-solving courts and reforms to processes for evaluating judicial performance. He also directs a project dedicated to increasing awareness of the work of state supreme courts. He is the author of books on community justice, social inequality and modern Ireland, as well as articles and book chapters on a wide variety of court-related topics. He has a doctorate in sociology from the University of Illinois at Urbana.
Shelley S. Miller is a research analyst at the National Center for State Courts. She works on projects related to access to justice and judicial selection. She holds a law degree from the William and Mary School of Law.
Developments in Judicial Selection
The conduct and results of the 2012 judicial elections provide insights into the changing context of judicial selection. Judges face popular election at some point in their careers in 39 states, accounting for 89 percent of all state judges.1 Some elections are partisan in nature, others are nonpartisan in the sense that party labels are not on the ballot, and, in a third type of election, judges run against their own record rather than an opponent, also called retention elections. States also differ in how judges first reach the bench, although the most common method is gubernatorial appointment.
In contestable elections—partisan and nonpartisan—almost 40 percent of judicial incumbents in supreme court races ran unopposed in 2012.2 Incumbents with challengers won in almost all instances, with the exception of Ohio, where two incumbent justices were defeated.3 Those defeats illuminate a key feature of judicial elections—a lack of relevant information that leads voters to rely on unreliable cues when they vote. The incumbent Ohio Supreme Court justices, Yvette McGee Brown and Robert Cupp, were defeated by challengers Sharon Kennedy and William O’Neill, respectively. Such an upset had not occurred since 1986. In 2012, one of the winners was supported by the Republican Party and the other by the Democratic Party. Both Ohio’s Democratic and Republican committee chairmen agreed the losses by their incumbent candidates related largely to voter assumptions regarding the candidates’ last names.4 In the race between Brown and Kennedy, Democratic voters saw Kennedy’s last name and assumed, incorrectly, she was the Democratic candidate. The outcome of the other supreme court race was similarly determined; Democratic voters in Cuyahoga County (Cleveland) voted for Republican former judge O’Neill because of his Irish-sounding name.5
Many states select judges through some version of the Missouri Plan, in which judges, once appointed, face periodic retention elections where they are required to get a yes vote from a proportion of the voters in that state. Historically, few retention efforts have drawn opposition, and even when opposition has occurred, it rarely has been successful. This changed in 2010 when anti-retention campaigns successfully blocked the retention of three justices in Iowa and nearly succeeded in other states, suggesting the security judges traditionally have enjoyed under retention systems may be under threat.
The 2012 elections saw a different conclusion to this new pattern, or trend, of strong anti-retention campaigns. State supreme court justices in both Florida and Iowa faced major, well-organized challenges to their retention election bids. In Florida, conservative groups targeted the three justices up for retention.6 Supporters raised more than $5 million for pro-retention efforts,7 countering funding provided by the Republican Party, the national political advocacy group, Americans for Prosperity, and a local Florida group, Restore Justice.8 The three justices hired consultants, filmed commercials and made public appearances, all while promoting the nonpartisan selection system that put them in office.9 The justices also held other campaign-like events such as meet-and-greets.10 All three justices were retained by a 2-to-1 margin, a margin consistent or even higher than historical trends.
In Iowa, Justice David Wiggins—the fourth Iowa Supreme Court Justice to stand for retention since the unanimous Iowa Supreme Court ruling on the constitutionality of same-sex marriage—faced an opposition campaign similar to the one that denied retention to three of his colleagues in 2010. Wiggins declined to campaign personally, but outside groups came to his aid.11 The state bar association organized a pro-Wiggins bus tour—to follow an anti-Wiggins bus tour—and a coalition favoring retention reached out to individual voters.12 Wiggins was retained with 54 percent of the vote.
Proposed changes to judicial selection methods also were on the 2012 ballot in a number of states. The proposals generally sought to make judicial elections more partisan. In Arizona and Missouri, ballot initiatives designed to give the governors greater influence over the judicial selection process failed to garner even a third of the vote.13 Voters have been disinclined in recent decades to change judicial selection methods. In 2013, however, renewed efforts are expected in a number of states now using retention elections to move toward a more partisan election or the federal judicial selection method.
Beyond Judicial Selection
Courts are rooted in tradition and rely on processes that have been carefully crafted over the years to ensure fairness in court decisions. One consequence of this was a continuing reliance on paper files. That is changing rapidly as electronic files replace paper files to document court procedure and the submission of evidence. State courts made important strides in 2012 in relying on electronic filing systems that improve efficiency in case processing by reducing backlog, lowering operation costs and increasing access to the courts.14 The growing use of e-filing and other technologies was highlighted in late 2012 at the E-Courts Conference, hosted by the National Center for State Courts. The conference presentations demonstrated how courts have moved into the digital age. Art Bernardino, Civil Division Administrator of the Las Vegas Justice Court, highlighted how implementation of an e-filing system in his jurisdiction saved more than $300,000 in overtime costs and reduced wait times from 90 minutes to 15 minutes for constituents.15 E-filing, if implemented correctly, offers a variety of benefits, including physical space savings, ease of access to court documents, a secure environment for information and data entry time savings.16
Courts also are cautiously embracing new media—including social media such as Twitter and Facebook—for communication. As part of the “New Perspectives on State Court Leadership” series in 2012, new media expert Garrett Graff outlined for court leaders the opportunities courts have to embrace new media in their work. Some lie outside of the courtroom itself. “[T]he ease of communication that these tools provide—and the changing generational expectations vis-à-vis technology—means that there’s no good reason anymore for courts to end at the courthouse walls,” Graff argued.17 In addition to making courts more accessible, Graff highlighted the potential of new media to enable court leaders to engage in an open dialogue with the public on issues related to the judiciary.
To date, however, much of the conversation about new media and the courts has narrowly focused on the challenge it presents to the integrity of the jury process. There has been a sea change in the ways and quantity in which members of the public receive information. With this change, and the widespread availability of new, technologically advanced devices such as smartphones, social media provides today’s jurors with unprecedented opportunities to make use of the Internet to collect their own evidence about a case.18 Judges, working with the lawyers in a case, have, for centuries, strictly controlled the evidence available for juror consideration. That may no longer be possible.
Courts have relied on giving jurors more specific and threatening instructions as they begin a case to control the use of new media. New model jury instructions were introduced in 201219 that warn jurors they must decide the case based solely on the evidence presented at trial and not conduct any independent research on the “internet, websites or use any other electronic tools to obtain information about this case.”20 However specific and whatever sanctions are threatened, such instructions are contrary to the way people seek to decide what is true in their daily and work lives.
Another paper in the “New Perspectives on State Court Leadership” series published in 2012 reported findings from a pilot research project designed to establish the degree to which jurors are using or want to use new media in deciding the verdict in a case.21 The survey found that while two-thirds of jurors were aware that using the Internet to research any aspect of the case or trial participants would violate the judge’s instructions, 44 percent of all jurors indicated a desire to obtain information about legal definitions, 28 percent indicated a desire to obtain information about the case, 23 percent a desire to obtain information about the parties, and 20 percent indicated a desire to obtain information about the lawyers.22
Evidence Supporting Specialized Criminal Courts
State courts traditionally have relied on specialization as a way to respond to changing conditions, such as the influx of substance abuse involved defendants. Since 1989, the state courts have established more than 3,600 problem-solving courts designed to better adjudicate defendants with underlying substance abuse or mental health issues.23 Current variations include drug courts, mental health courts, domestic violence courts, re-entry, and community courts.24 Despite this rapid expansion of the model, only recently has compelling evidence shown that at least one prominent model of specialized courts—the adult drug court—reduces recidivism in a cost-effective manner.25 Evaluations of other types of problem-solving courts are positive, but remain inconclusive, on the issue of recidivism.
Research completed in 2012 provides evidence that community courts also can reduce recidivism in misdemeanor cases. The Red Hook Community Justice Center, which opened in 2001, is one of the most widely promoted problem-solving community courts. Located in the physically and socially isolated neighborhood of Red Hook in Brooklyn, N.Y., the justice center seeks to reduce crime and improve the quality of life in Red Hook and surrounding neighborhoods. In addition to misdemeanor criminal cases, the justice center judge hears housing and family cases as a way to meet the court’s goals.
Although widely viewed as successful, hard evidence to verify the Red Hook Community Justice Center’s impact on defendants and the local community was lacking until the completion of a comprehensive evaluation in 2012. The evaluation of the RHCJC employed a variety of qualitative and quantitative research methods.26 The findings showed that defendants processed at the justice center had a 20 percent lower recidivism rate than their counterparts at the downtown Brooklyn court. The implementation of Red Hook Community Justice Center also was associated with a permanent decrease in the overall level of arrests in the geographic area it serves and subsequently a remarkable stability in arrest trends at that lower level. Moreover, the savings obtained through lower recidivism rates and other impacts exceeded the total fixed costs associated with operating the justice center.
The evaluation also examined the degree to which residents embraced the justice center as a local institution. About 90 percent of local residents were aware of the justice center and their perceptions of it were positive. The ethnographic analysis demonstrated that offenders perceived a high level of procedural fairness in the justice center’s decision-making process and the judge was viewed as demonstrating both compassion and fairness. Procedural fairness is the social psychology theory that when people perceive they are experiencing a decision-maker who treats them with respect, neutrality, allows participation and is trustworthy, they are more likely to voluntarily comply with decisions.27
As best as can be determined, the reduction in recidivism is associated with the ability of the Red Hook Community Justice Center and its judge to project a commitment to fair processes in reaching decisions rather than to deterrence or to the effects of treatment. This is consistent with what has been learned through recent adult drug court evaluations. A growing body of evidence supports the conclusion that the most effective way to reduce crime is through policies based on procedural fairness.28
2012 was a mixed experience for the state courts. Contention over the most appropriate method of judicial selection continued, showing signs that changes may be in the cards for the first time in decades. Four consecutive years of budget cuts hampered the ability of courts to carry out their responsibilities, despite the cuts being less frequent in 2012.29 On the other hand, courts demonstrated the benefits of electronic filing and other innovations to make them more efficient. Avenues for using new media to better connect with the public were explored with some success, although the potential threat new media presents to the integrity of the jury process remains. The contribution problem-solving courts make to the effectiveness of the criminal justice system was reaffirmed in another type of those courts.
1. Bert Brandenburg and Roy A. Schotland. “Justice in Peril: The Endangered Balance Between Impartial Courts and Judicial Election Campaigns.” Georgetown Journal of Legal Ethics 21 (2008), 1230.
2. Information on file with author.
5. Note, however, that former Judge O’Neill had twice 2013 run for election to the Ohio Supreme Court, in 2004 and 2006, and lost, and had been the Democratic Nominee for Congress in Ohio’s 14th Congressional District in 2008 and 2010.
6. Brandenburg, supra note 1.
14. Jorge Basto and Bob Roper, “The E-Courts Maturity Model; Art Bernardino, E-Filing Implementation: A Limited Jurisdiction Court’s Experience” (paper presented at the National Center for State Courts e-Courts Conference, Las Vegas, Nevada December 9–12, 2012).; Carole Pettijohn and R.B. “Chips” Shore, “The E-Courts Return on Investment” (paper presented at the National Center for State Courts e-Courts Conference, Las Vegas, Nevada, December 9–12, 2012).
23. West Huddleston, and Douglas Marlowe, “Painting the Current Picture: A National Report on Drug Courts and Other Problem-Solving Court Programs in the United States.” (Alexandria, Virginia: National Drug Court Institute. July 2011), 1.
25. S.B. Rossman, J.K. Roman, J.M. Zweig, M. Rempel, and C.H. Lindquist, eds, “The Multi-Site Adult Drug Court Evaluation,” (Washington, D.C.: The Urban Institute, 2011), 5.
26. Cynthia Lee, Fred Cheesman, David Rottman, Rachel Swaner, Suvi Lambson, Michael Rempel, and Ric Curtis, A Comprehensive Evaluation of the Red Hook Community Justice Center,” (New York: Center for Court Innovation and National Center for State Courts, 2013).
27. Tom Tyler, “Procedural justice,” in: Sarat A (ed) The Blackwell companion to law and society, (Blackwell, Oxford, 2004), 435.