Criminal Justice Reforms Enhance Public Safety and Strengthen Our Courts
After decades of increasingly harsh penalties for those who commit misdemeanor crimes, a nationwide groundswell of support for criminal justice reforms may refocus law enforcement and court resources toward more serious offenses and more effective rehabilitation, and have the effect of saving money for our courts.

Wm. T. (Bill) Robinson III
President, American Bar Association

In October 2011—Domestic Violence Awareness Month—the city of Topeka, Kansas, debated a sobering problem. According to news reports from a variety of national outlets, the Shawnee County district attorney decided to pass the cost of prosecuting misdemeanors, including several pending domestic violence cases, to its largest city: Topeka (AP, 2011). Citing inadequate financial resources as well, the city also declined to prosecute some misdemeanors, but took the additional step of actually decriminalizing domestic violence (Guarino, 2011). This bizarre episode rightly shocked the public and served as a focusing event that resolved the interplay between money, law enforcement, and justice. It also drew attention to a growing crisis that, if left unattended, threatens the operation of state courts.

While the Topeka domestic violence situation may appear to be an extreme example of how inadequate judicial resourcing can impact the community, it is in fact a distressing feature of what has become the new normal. Chronically underfunding state court budgets has a well-documented, deleterious impact on our justice system.

Shrinking State Court Budgets

Thanks to the work of the National Center for State Courts, a wealth of data is available about how much states spend on their judiciaries (NCSC, 2011). The statistics are discouraging:

  • 42 states have reduced their court budgets
  • 39 states have suspended filling clerk vacancies
  • 34 states have laid off court staff
  • 27 states have increased fines and fees to offset lost revenue
  • 23 states have reduced operating hours
  • 9 states have seen delays or relied less on jury trials

Criminal JusticeAmericans are struggling through a long recovery that has all but evaporated tax revenue. Given continued economic turbidity, state and local governments are forced to make hard decisions about where to invest limited resources. These decisions put lawmakers in the position of negotiating between competing interests of human welfare. Libraries and schools are vulnerable. Medical and emergency services are threatened by the budget ax. Courts are also at risk. In fact, our judiciaries have been targeted for deep cuts that impact access to, and the administration of, justice. The startling decision to decriminalize domestic battery in Topeka is just one example of how diminished judicial funds can compromise the mission of our justice system.

In another recent example, New York eliminated $170 million from the state’s judiciary budget in fiscal year 2011 (New York County Lawyers Association, 2011). That accounts for approximately 6 percent of the state’s annual judicial budget, but only one-tenth of 1 percent of the operating budget as a whole. While major reductions as a percentage of judicial budgets do not represent significant savings as a percentage of statewide expenditures, they have far-reaching consequences for the pursuit of justice.

The New York State Bar Association (NYSBA) released a report in January 2012 Criminal Justicethat examined how courts and the public fare under judicial austerity. The report provides evidence that inadequate funding is leading to less efficient and expedient decision making, higher barriers to entry for the indigent, and—critically—a weakening in “the courts’ ability to protect and serve the public.” The authors concluded that “funding for New York State courts during the 2011-2012 year has been substantially harmful and far-reaching.” The report further stated that “imminent investment in the state court system is necessary” (NYSBA, 2012: 1).

A Coast-to-Coast Problem

Sensing the problem that would later explode in Topeka and New York, the American Bar Association created in 2010 the Task Force on Preservation of the Justice System, cochaired by noted lawyers David Boies and Theodore Olson. Part of the task force’s continuing mission is to gather stories from around the nation about the fallout from inadequate state court budgets. Since the first hearing in Atlanta, a nationwide panoramic has developed of courts operating on shoestring budgets and ordinary people locked out of courtrooms.

In Alabama a judge asked the charitable arm of a local bar association to donate money to the court to help pay juror stipends.

A municipal court in Ohio announced that no new cases could be filed unless the litigants brought their own paper to the courthouse (ABA, 2011c: 3). The court simply had no money for office supplies. This is a reoccurring theme across the country. In Georgia, the state judicial budget is so lean that some courts actually solicit pen and pencil donations from vendors like LexisNexis and Westlaw (Podgers, 2011). A local bar association in North Carolina ran an office-supply drive to collect paper and copier toner because shortages meant that parties could not exchange documentation, even in serious criminal cases.

In Sacramento, California, the lines at the courthouse are often so long that people actually bring lawn chairs to use while they wait. Additional budget cuts could mean waits as long as five years for civil cases to go to trial and more than a year for divorces (McKinley, 2011).

The presiding judge in San Francisco, Katherine Feinstein, has warned that “the civil justice system in San Francisco is collapsing,” and that “the future is very bleak for our courts.”

That sentiment is echoed by Oregon Supreme Court Chief Justice Paul De Muniz, who has likened withered court budgets to “a dying tree that you prop up in your front yard so that the landscaping looks okay, but it's a facade, because behind that are layoffs, furloughs and elimination of all kinds of services."

As Court Funding Diminishes, Criminal Law Continues to Grow

At the same time that state courts are coping with record caseloads (106 million in 2008), governments have expanded the definition of what is “criminal” with alacrity (LaFountain et al., 2010: 19). The ABA published a landmark report in the late 1990s that addressed the federalization of criminal law—a trend of expanding crimes traditionally under state purview into federal jurisdiction. Ultimately, the commission studying over-criminalization concluded that the wild expansion of federal criminal law “represents an unwise allocation of scarce resources needed to meet the genuine issues of crime” (ABA, 1998). It is disturbing, then, that the federal criminal population has ballooned eightfold in the last 30 years (Fields and Emshwiller, 2011).

Criminal JusticeBut federalizing state criminal law has not lessened the burden for states, which also have soaring prison populations. In fact, the United States has the highest incarceration rate in the world. One in every 31 adults is under supervision of a government agency—whether in prison, parole, or probation (Pew Center on the States, 2009: 1). The United States imprisons its citizens at a rate roughly five to eight times higher than the countries of Western Europe and 12 times the rate of Japan (Walmsley, 2009: 3-5). In 2009 well more than 2 million people were either in jail or prison in the United States, a number in stark contrast to the fewer than 500,000 Americans incarcerated just 30 years prior. Roughly one-quarter of all persons imprisoned in the entire world are imprisoned in the land of the free (Liptak, 2008).

At any one time, half a million individuals sit in jail just awaiting trial, having not yet been convicted of a crime. The annual cost of our supervised population is a staggering $9 billion (ABA, 2011a).

The 1.4 million incarcerated in state facilities in 2008 cost an average of more than $23,000 per inmate that year (ABA, 2011e).

All levels of our justice system bear the burden of swelling criminal rolls. In some states, fish-and-game violations, dog-leash violations, and feeding the homeless are offenses punishable by time in jail. Minor infractions of the law result in jail time and are a serious drain on court and law-enforcement resources. Heavy caseloads mean that in Lancaster County, Nebraska, a defense attorney spends an average of only 1.1 hours on misdemeanor cases (ABA, 2011d). In 2008 an average of 2,400 cases per Atlanta public defender meant each case was afforded approximately 59 minutes (ABA, 2011d).

While some may argue about whether we incarcerate criminals too long and too harshly, there can be no disagreement about the staggering cost to do so. At a time when states are straining to provide basic services and even court copying machines are treated like an extravagance, it is incumbent on lawyers and judges to find additional ways to save money through criminal justice reform in the states.

Trending Toward Commonsense Criminal Justice Reform

The ABA has identified many reforms that keep communities safe while lessening costs to already overburdened state criminal justice systems. In five areas in particular—pretrial release of accused low-risk offenders, the decriminalization of minor offenses, reentry support programs, expanded reliance on parole and probation, and community corrections—states can make commonsense changes to their process of jurisprudence and rehabilitation that will provide significant savings opportunities.

Stories in states across the nation demonstrate that these reforms merit serious consideration. In the Southern District of Iowa, a case study of the effectiveness of releasing individuals before trial found that, when courts released 15 percent more individuals pretrial, the overall percentage of individuals whose release was not revoked because of rearrest and new alleged criminal activity increased from 95.6 percent to 97.3 percent (ABA, 2011f). As a result, the district saved $1.7 million in fiscal year 2008-09.

Florida has seen substantial benefits to public safety and to its bottom line by decriminalizing minor offenses (ABA, 2011d). Between 2004 and 2005, 95,254 juveniles were referred to the juvenile justice system in that state. Of the offenses that were referred, 26,990 were for school-related offenses. After implementing an alternative, civil-citation system that avoided criminal records and jail time for juveniles, Miami-Dade County reduced juvenile arrests by 46 percent, and reduced the first-time offender rate of reoffense within the first year by 80 percent. More important, the average costs associated with civil citations is $386 per juvenile compared to the $5,000 it costs to process a juvenile through the criminal justice system.

Brooklyn’s Community and Law Enforcement Resources Together (ComALERT) prisoner-reentry program is a model for other jurisdictions (ABA, 2011h). In 2010 it cost Brooklyn over $6,000 to process a single rearrest. With significantly fewer arrests, Brooklyn saved almost $450,000 on rearrest costs alone. And this does not reflect the money saved on re-incarceration, which costs over $53,000 per inmate, per year. Since 2004, the program boasts more than $2 million in rearrest savings, over $8 million in re-incarceration savings, and more than $600,000 in increased tax revenues.

In Kentucky, the Pretrial Services Agency has saved the state millions of dollars in incarceration costs through early, managed release and subsequent dismissal of charges (ABA, 2011g). Between 2006 and 2007, Kentucky’s Social Work Pilot Project saved almost $1.4 million in reduced incarceration costs. Recidivism rates improved. When this program is implemented statewide, savings are projected to be $3.1-$4 million per year.

Each of these reforms is a proven way to save precious tax dollars, just at a time when our courts are in desperate need of additional resources. All opportunities to save the states needed money must be on the table. These reforms bear no resemblance to the decision in Topeka to decriminalize domestic violence. Whereas in Topeka the objective was to ignore violence and its victims, sensible criminal justice reforms have the opposite effect by freeing up resources that can be used to improve public safety and protect victims of crime.

Criminal JusticeThe ABA has advocated for such reforms for some time, but more recently our prolonged national economic stagnation has caused legislators and district attorneys to take note. In part as a result of the ABA Criminal Justice Section’s ongoing work with states, district attorneys, politicians, and organizations across the ideological spectrum—from the ACLU to the Heritage Foundation—are embracing what can only be called “smart on crime” policies.

Of course, just because we save money in one area of our justice system, it does not necessarily mean that family courts will automatically see an influx of funding. Some states allow a portion of money saved by judiciaries to carry over into the next fiscal year; that is a sound policy. But even in states where the carry-over rule does not exist, saving money in court operations must continue to be a priority.

The Essential Role of Our Courts

The New York State Bar Association began its report on court funding with a quote from Supreme Court Chief Justice Warren Burger’s address to the ABA’s annual meeting in 1970. Justice Burger’s words encapsulate why access to justice and the confidence that access breeds is critical:

A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and three things could destroy that confidence and do incalculable damage to society: that people come to believe that inefficiency and delay will drain even a just judgment of its value; that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching; that people come to believe the law—in the larger sense—cannot fulfill its primary function to protect them and their families in their homes, at their work, and on the public streets.

Inadequate state court funding can cause each of the deficiencies of which Justice Burger forewarned.

The crisis of state court underfunding will not be solved in one fiscal year. Sustainable, adequate funding is a multigenerational goal that requires a comprehensive strategy that integrates advocacy, public education, and cost-saving measures such as a reprioritization of our criminal justice objectives. Our state courts are the most direct connection communities have to our model system of justice. It is critical that we nurture public confidence in the institution of our justice system so that we can maintain the fabric of ordered liberty of which Burger spoke.