CHAPTER TWELVE ADDRESSING THE PROBLEMS AND CRAFTING SOLUTIONS

Introduction § Lingering and historical issues § Unique time period issues § Non-exhaustive list

Resource Issues § Resources limit justice administration § 3 primary needs § Sufficient number of trained and qualified judges § Adequate support staff § Acceptable physical plants (offices and courtrooms) § 23% of criminal justice budget for judicial and legal services § Compare with police and corrections budgets § 21% of justice system personnel in judicial/legal services § Raises issues about coequality of government branches

Judicial Independence § Priority of the American Judicature Society § Creation of the Center for Judicial Independence § Issues associated with judicial independence § Budgets § Courts do not control their own budgets § Legislature determines the budget § Legislature determines the number of judgeships authorized § Court Jurisdictions § Courts do not have complete jurisdictional authority § Can be expanded or contracted by the legislature § Elections § § State judicial changes due to unpopular decisions Aware of public sentiment Obligation to campaign contributors Not applicable to federal judges

Management Concerns § Increase in court management positions § Concern about increasing bureaucracy § All state and federal courts have administrative arm § Administrative office of courts § Professionally trained management personnel § Appointed by judges § Functions § § Budgeting Personnel management Jury management Case scheduling

Pro Se Litigation and Court Access § Individuals act as their own attorney in a legal matter § Focus of the American Judicature Society § May upset the goals of courtroom work groups § Group cohesion § Disposition of cases § Reducing uncertainty

Alternative Dispute Resolution § Expansion began in the 1970 s § Alternative to lengthy and expensive adjudication § Is institutionalized and mandatory in many courts § Reasons for utilizing ADR § § Quicker disposition of routine cases Lower expenses to the parties involved Reduction in the need for outside parties Less congestion and expense for the court system § Types of ADR § § Negotiation Mediation Arbitration Hybrid ADR

Negotiation § Both parties want to settle the dispute § Parties engage in discussion to try to resolve differences § No third party involvement § § Often results in a compromise where each party gains something Less likely to be successful if viewed as a zero-sum game

Mediation § § Utilizes a third party to intervene between the parties Mediator’s role is to help the parties reach a resolution that is acceptable to both sides § Non-adversarial process that relies on cooperation § Mediators may or may not have formal training § Mediator meets separately with each side, then brings them together to reach a solution § Commonly used in divorce disputes § Dependent upon compromise

Arbitration § More formal method of ADR § May be governed by state law § Arbitrator makes a final decision to settle the dispute § Parties agree beforehand that the arbitrator’s decision is final § Common arbitration matters § Labor and management disputes § Contract negotiations § Credit disputes

Hybrid ADR § Rent-a-Judge Programs § Disputing parties hire an attorney or retired judge § Dispute is resolved through a bench trial § Concerns about secrecy and cost § Med-Arb § Combination of mediation and arbitration § Dispute is first taken to a mediator § If an agreement cannot be reached, the case is taken to arbitration § Minitrials § § Similar to rent-a-judge Disputes are distilled to basic elements Parties have limited motions and time to argue the case Judge advises parties about a likely outcome if the case proceeds

Women as Victims § Double victimization in sexual assault cases § Solutions § § Female officers used for sexual assault investigations Officer sensitivity training Victims’ advocates in prosecutors’ offices Enactment of rape shield laws to prevent questions or comments about the victim’s prior sexual history

Women as Offenders § Women are convicted of far fewer crimes than men § Possible explanations § Women are less criminally inclined than men § Justice system is more forgiving toward women (chivalry hypothesis) § Justice system may also be more punitive toward women (paternalism perspective) § Unequal adjudication § More sympathy from judges and juries § This has lessened through the use of sentencing guidelines

Women as Judges and Attorneys § § § Historical underrepresentation of women in law and the judiciary Substantial increase in female law students, attorneys, and judges Historical exclusion from jury service has been eliminated

Minorities as Defendants § § Minorities comprise a disproportionate percentage of those arrested and prosecuted Possible explanations § Minorities may commit more crimes § Criminal justice policies may disproportionately affect minorities § Minorities are overrepresented in the prison population

Minorities as Judges and Attorneys § Underrepresentation of minorities in law practice and the judiciary § Numbers are increasing at a very slow rate

The Use of Scientific Evidence § Used to identify and apprehend criminal suspects § Originated in France with the Bertillon method § Use of science and technology has increased substantially § Primary method is DNA testing § § First employed in a murder and rape case in England Has received tremendous publicity Illustrates court procedures for establishing scientific validity and reliability Accepted as a reliable indicator of criminal involvement

Wrongful Convictions § Focus from DNA testing and well-publicized cases § Significant concerns § The guilty party is still in the community § Due process § Reasons for wrongful convictions § § § Eyewitness identification False confessions Jailhouse snitch testimony Misleading forensic science Prosecutorial misconduct Ineffective assistance of counsel

Adjudicating Non-Traditional Issues: The Case of Terrorism § Prosecution of enemy combatants has presented new issues § The Supreme Court has ruled that it has jurisdiction to hear the cases of enemy combatants § Military tribunals violate the Uniform Code of Military Justice and the Geneva Convention