Chapter Seven

Judges and Justice in the States

Chapter Outline

I. Introduction

A. State and local judges conduct most of the nation’s judicial business

B. State judges have final say on most cases; a few exceptions

1. Writs of habeas corpus (petitioner being held by state in violation of due process) can cause federal

district court review of state court action

2. Federal questions: state judge has interpreted national constitution or law

C. New judicial federalism has caused state judges to become more prominent

D. Tort law revolution has increased number of state court cases

E. Criminal cases have also increased with tougher state action against criminals

II. The structure of state courts

A. Minor courts

1. In most states minor courts handle misdemeanors

2. Decisions of these courts may be appealed and in most cases tried de novo – tried again without

reference to what happened in the minor court

3. In cities, these minor courts are known as municipal courts and are often divided into traffic courts,

domestic relations courts, small claims courts, and police courts with paid magistrates presiding over

most of these courts

4. The justice of the peace system survives, especially in rural areas with their authority limited to

performing marriages, notarizing, handling traffic violations, and hearing misdemeanors usually involving fines of less than $200; traditional justice of peace courts are being phased out

5. A new and effective reform of courts is the establishment of court-watching groups

B. Trial courts of general jurisdiction

1. Trial courts where cases first appear (original jurisdiction) are called county courts, circuit courts,

superior courts, district courts, and common pleas courts

2. Trial courts administer common, criminal, equity, and statutory law; states generally also have special

probate courts to administer estates and handle related matters

3. There is growing recognition that trial courts not only apply the law, they also shape the law

C. Appellate courts

1. In a few states, appeals from trial courts are carried directly to the state supreme court; however, most

states have intermediate appeals courts much like the United States courts of appeals

2. All states have a court of last resort, usually called the Supreme Court; unless a federal question is

involved, state supreme courts are the highest tribunal to which a case may be carried

3. All state judges of all state courts take an oath to uphold the supremacy of the U.S. Constitution and

all state judges have the power of judicial review

D. State courts and state politics

1. State courts are more deeply and more often involved in the affairs of their legislative and executive

branches than the U.S. Supreme Court is with Congress and president

2. State judges are unconstrained by the doctrine of federalism in dealing with local units of government

3. State judges are much less constrained than federal courts from hearing cases brought by taxpayers

4. In nine states, supreme court can give advisory opinions upon request

5. State judges feel much less need than do most federal judges to exercise restraint or to argue that they

are doing so—they are elected and their opinions can be set aside more easily

III. How judges are chosen

A. Appointment by the governor and election by the legislature

1. Variations of this process in about a dozen states

2. Even in elective states, most judges first reach bench by appointment to fill vacancies

3. There is also an informal process; e.g., a lawyer who is interested in becoming a judge makes his or

her interest known to party officials

B. Popular election

1. In nearly half the states, judges are chosen by popular election

a. Some hold nonpartisan primaries for nominating judicial candidates and elect them on

nonpartisan ballots

a. In at least half the states holding nonpartisan elections, parties actively campaign on behalf of

candidates

2. Most states have adopted provisions like the American Bar Association’s code of judicial conduct,

banning judicial candidates from telling the electorate anything about their views on legal and

political matters; candidates have challenged these laws as limiting their constitutional right to speak

and restricting voters’ right to know about candidates’ stands

3. Judicial elections are becoming increasingly contested, but still attract little voter attention

4. Although the Supreme Court has not yet ruled directly on the issue of at-large judicial districts, it did

hold in a 1991 case that the Voting Rights Act applies to judicial elections and thereby called into

question the use of at-large elections for the selection of judges

C. Merit selection: the Missouri Plan

1. Purpose is to screen candidates before selection to ensure merit

2. Whenever a judicial vacancy occurs, a special nominating commission nominates three candidates

and the governor selects one, who then serves as a judge for at least a year; at the next general

election the voters are asked: “Shall Judge X be retained in office?”

3. These uncontested elections are called retention elections

a. Usually they generate little interest and have low voter turnout

b. Occasionally, state supreme court judges are vigorously challenged in retention elections, especially when their decisions differ appreciably from public opinion

c. Some states have evaluation committees to recommend retention or not to the voters

D. The appointive versus the elective system

1. Arguments of those who favor the appointive system

a. Contend voters are generally uninformed about candidates and are not competent to assess legal learning and judicial abilities

b. Contend that the elective process conceals what is really going on

c. Because many vacancies are created by retirement and death, it is often the governor who selects

the judges; the governor makes an interim appointment until the next election, and the individual appointed usually wins the election

2. Arguments of those who favor the elective method

a. Judges should be directly accountable to the people; when judges are appointed they are apt to lose touch with the general currents of opinion of the electorate

b. The appointive process gives governors too much power over judges

c. Elections serve to foster accountability because judges do not want to be defeated and will try to maintain popular support

E. How judges are judged

1. Most state judges are selected for fixed terms, typically 6 to 12 years

2. Today each of the 50 states has a board, commission, or court to handle allegations of judicial

misbehavior

a. These commissions are most often composed of both nonlawyers and lawyers who investigate complaints and hold hearings for judges who have been charged with improper performance of their duties or unethical or unfair conduct

b. The commissions appear to have restored some public confidence in the judicial system

IV. The judicial reform movement

A. Reforms for improving the administration of justice include:

1. Judges should be selected by some kind of merit system

2. Judges should be paid adequately to be financially independent

3. Judges should serve for long terms so that they can make decisions without fear of losing their jobs

4. Rule-making powers should be given to the state supreme court or its chief justice

5. Alternative dispute resolution (ADR): the collective term for alternatives to traditional trial

adjudication

a. These processes include mediation, arbitration, conciliation, private judging, and advisory settlement conferences

b. Some claim that this is “rent-a-judge,” justice for the wealthy

6. Although no person should be appointed or elected to a court solely because of race or sex or ethnic

background, our courts need to become more representative of the communities they serve

V. The justice system

A. The jury

1. Jury trials are actually held in only a small percentage of cases; still, a key feature of the justice system

2. A jury system is the responsibility of all adult citizens, but many try to avoid it

3. Reforms to reduce time and cost: fewer than 12 on a jury, less than unanimity

B. The prosecutor

1. They are elected locally and have great power

2. When presented with a case by the police, the prosecutor must decide first whether to file formal

charges by one of the following ways

a. Divert the matter out of the criminal justice system and turn it over to a social welfare agency

b. Dismiss the charges

c. Take the matter before a grand jury

d. File an information affidavit, which serves the same function as a grand jury indictment

3. The decision to charge or not to charge is up to the prosecutor, who is subject to political pressures

C. Defense counsel, public defenders, and others

1. The assigned counsel system is the oldest system to provide defendants who cannot afford the legal

counsel to which they are constitutionally entitled

2. Under the public defender system, the government provides a staff of lawyers whose full time job is

to defend those who cannot pay

D. Victims and defendants

1. More than 30 states and Congress have adopted “Son of Sam” laws to prevent convicted criminals

from financial gain by selling their stories

2. Defendants are likely to be younger, male, black, less educated, seldom fully employed, and

unmarried; and victims tend to be similar

3. The system for prosecuting criminals is strictly between the state, represented by the prosecutor; and

the accused, represented by an attorney; no role for the victim

4. The 1984 Victims of Crime Act authorized federal funds which are distributed by the Office of Crime

Victims in the Department of Justice to support state programs compensating victims and providing

funds to some victims of federal crimes as well

5. About thirty states have amended their constitutions to provide for a “victim’s bill of rights”

6. Congress is considering a Victim Rights Amendment

E. Plea bargaining

1. Plea bargaining: the practice in which the prosecution offers to reduce the seriousness of the charge if

a defendant will enter a plea of guilty to a lesser crime

2. It is controversial, but many of the several commissions of experts and investigators who have

recently evaluated plea bargaining have endorsed it

3. Plea bargaining offers something to all involved: lighter sentence for defendant, faster and surer

conviction for prosecution

F. Sentencing

1. Due process must be observed in sentencing, which takes place in open court

2. Judicial discretion remains broad; penal codes do not set very specific terms of punishment

3. To reduce disparities, several reforms have been proposed

a. Establishing more precise legislative standards

b. Creating advisory sentencing councils

c. Adopting the British practice of allowing appellate courts to modify sentences

4. Many states have adopted mandatory prison-term statuses for more and more crimes, such as the

“three-strikes” provision

G. Probation and prisons

1. Prison populations in the United States are skyrocketing

a. Now more than 2 million in prisons and jails

b. About 4.5 million in probation or parole

2. The increase in prison population has resulted in serious overcrowding

3. One out of every three persons let out of prison returns in three years

4. Some cities and counties have resorted to privatization, turning over the responsibility for operating

jails to private firms on a contractual basis

5. High cost of corrections has led some states to rethink mandatory sentencing and to consider alternatives

IV. Courts in crisis

A. Public concern about crime is a national issue confronting all those involved in the criminal justice system in America

B. There is widespread agreement that our justice system is in crisis, but each “reform” has costs and benefits