May 2003
Rethinking Our Court System: Judicial Initiatives
by Judge Deborah Fleck
Recently I completed a year serving as president of the Superior Court Judges' Association (SCJA). Though probably below the radar for most lawyers, the SCJA and its judge-trustees work hard dealing with the convergence of local, county and state legislative and executive actions, and their consequences, in Washington courts.
I write to describe to you two significant initiatives we started this past year and where we believe they will lead.
Court Funding Task Force
The SCJA was instrumental in launching the Court Funding Task Force (CFTF) under the auspices of the Board for Judicial Administration (BJA). This task force is truly an exciting project. It is the culmination of 20 years of studies that have documented the need for stable and adequate funding for Washington trial courts. Courts and local governments have struggled financially to comply with unfunded statutory mandates for many years. The continuing, significant increase in criminal caseloads without sufficient increase in judicial resources threatens the civil justice system, despite innovations implemented by the courts to more efficiently handle caseloads — innovations such as civil case management; court-annexed family law ADR; unified family courts; adult, juvenile and family drug courts; use of volunteers such as CASAs and people from AARP in the estate and guardianship area; and mandatory arbitration of smaller cases, to name just a few.
The mission of the task force is "[t]o develop and implement a plan to achieve stable, adequate, long-term funding of Washington's trial courts to provide equal justice throughout the state." It is chaired by Wayne Blair, past president of the Washington State Bar Association, whose leadership and experience are invaluable. Mr. Blair has been a critical working member of virtually every study over the past 20 years that has looked at the problems and needs of the judicial branch of government. The task force has 32 members, representing a cross-section of the stakeholder groups from the counties, cities and Legislature; business, labor and citizen groups; and the judicial branch of government, including judges, clerks, administrators and Bar leaders.
The task force plans to have a proposal ready for the 2004 Legislature. We are pursuing the effort through five workgroups, addressing problem identification, funding alternatives, delivery of services by district and municipal courts, public education, and implementation strategies. More than 100 people are involved in this effort. (See Executive's Report, p. 15).
It was the budget process in King County in 2001, together with the grim projections for the upcoming several years, that led me in November 2001 to contact Chief Justice Gerry Alexander, asking for a meeting to determine whether we could address the longstanding and critical need for adequate and stable funding of our trial courts under the umbrella of the newly revamped BJA.
After our initial meeting with the Chief Justice in November 2001, leaders from all levels of court, as well as Bar leaders, met in December to begin the discussion.
My SCJA long-range planning retreat in March 2002 was focused on this subject alone — the attendance was expanded to include not only the SCJA board and committee chairs, but also representatives from all levels of court, including Chief Justice Gerry Alexander and Bar leaders. We brought in a court futurist, reviewed the legal basis to pursue adequate financial support of our trial courts, and addressed budgets and approaches in other states. Finally, we reviewed the proposed action plan.
I particularly appreciate the willingness of the Chief Justice and Kitsap County District Court Judge Jim Riehl, BJA co-chairs, to accept this major undertaking as a task force the following month at the April 2002 BJA meeting.
What have studies over the past 20 years told us? The lack of adequate and stable trial-court funding has been documented in court studies for two decades. The final report of the Commission on Washington Trial Courts, in December 1990, documented the belief that courts were underfunded, and therefore lacked secure facilities, adequate staff and support services, as well as an adequate number of judges:
The Commission … believes that the Supreme Court and the Superior Court Judges' Association should determine the areas in which the lack of funds is most serious, and then take a more active role in helping the courts obtain the necessary funding.
A decade later, the 1999 Commission on Justice, Efficiency and Accountability's final report recommended that the BJA "should develop an overall funding strategy for the judiciary, consistent with the long-range plan" and "should evaluate the desirability of the state assuming greater responsibility for funding mandated judicial services." In 2001, the state Jury Commission report highlighted the often shabby treatment of Washingtonians called for jury duty, due to underfunded court operations and the low jury service fee, unchanged in nearly half a century. Regrettably, it has taken the current financial crisis to focus attention on problems identified long ago.
What problems currently exist?
The current system fails to promote equal justice. The state has a clear interest in equal justice; those accused of crimes have a right to expect uniform application of the laws. Civil litigants should be entitled to the same. Cases should not languish. However, court budgets are largely determined by the level of financial support available from counties, which can vary widely depending on the county fiscal capacity and budget priorities. Most of Washington's 39 counties are rural: jobs and tax dollars are perennially scarce. In the most populous counties, greater tax resources seem offset by greater caseloads and their resulting costs. It is obvious that this funding system creates disparities in access to the courts and in the administration of justice. Nothing short of changing that funding system can make a dent in these disparities.
The current system does not maximize the ability of the courts to operate in an efficient and effective manner. Courts and local governments struggle financially to comply with unfunded statutory mandates. It is popular to be tough on crime, but no one wants to spend the kind of money needed to cover the costs of such policies as they crowd the courts.
Increasingly I hear this dichotomy expressed by county officials and taxpayers alike: Why, they ask, should taxpayer dollars be used to fund the civil justice system?
The question is a chilling one. It ought to trouble us all. It underscores the need to think anew, act anew, and salvage our endangered justice system.
An ABA report has declared:
Although the justice system is not the only governmental activity hurt by a lack of funding, it is the only such activity which cannot control its own workload. The demands placed upon the justice system are driven not by choice, but by outside forces which do not allow for revenue fluctuations. When caseloads increase dramatically, without a corresponding increase in funding, limitations are imposed on the time spent on each case. (Emphasis added.)
With stable and adequate funding, judicial officers and court administrators could devote their skills to developing new and effective methods of structuring the resolution of cases. Judicial talent and experience are siphoned off each year — and time on the bench is lost — as judicial officers and senior staff have to devote more and more time in seeking to maintain a patchwork of categorical funding to keep court operations functioning and programs alive.
The current system places a strain on county finances. Both the state and the counties impact the workload of the courts. The state enacts laws that frequently have substantial fiscal impact on the courts. Legislation to address school truancy, for example, required the courts to make entirely new calendars to handle this workload at substantial cost to the counties, which had to sue to obtain the funding for it.
Having tackled the task, we have been reaping the benefits in reduced numbers of juvenile offenders — young people staying in school and obtaining the training they need to be productive citizens. But now, funding for these programs is in jeopardy, even as the courts may be required to handle the same workload — without adequate funds to do so.
Life-imprisonment sentences mean more cases go to trial and last longer. This has obvious cost impacts. Press reports in recent years have indicated some counties have to make decisions on whether to seek the death penalty based on whether they can incur the huge expenses of doing so.
Counties also impact the workload by decisions of local law enforcement and prosecutors regarding whom to arrest and whom to prosecute.
In evaluating the control and impact that each level of government has on the courts and their workloads, the concept of equal justice statewide must outweigh concern for local influence on the workload in terms of participation in the cost of the courts.
A review of a few figures shows how serious the problems in our courts are. Washington ranks 50th of the 50 states in terms of the state's share of trial-court funding. At 14.7 percent in state support, we are behind Alabama, Arkansas and Mississippi. Some 85 percent of court costs is carried by counties, with some private and government grants as well. There is concern that courts not rely on "user fees" as a significant source of funding, in part because of their effect on access to justice for all. While other states around the country have moved to a more balanced sharing of these costs — or a full state assumption of them, as was done in California and Oregon — Washington has not moved forward. Even our neighbor Montana began work on this a few years ago.
Another critical figure is that only three-tenths of one percent of the state general fund is spent on the judicial branch, including the appellate courts and the law library — a truly miniscule portion of the $50 billion state budget for 2001-03. Countrywide, the figure for the entire justice system is about four percent at all levels of government.
At the local level, according to figures prepared by Judge Gordon Godfrey of Grays Harbor County, Washington's criminal-justice costs to the counties nearly tripled between 1990 and 1999. After the Legislature eliminated the motor-vehicle excise tax, Judge Godfrey's figures show that reimbursement to the counties decreased from less than 20 cents on the dollar to 12.6 cents on the dollar for the cost of increased criminal-justice expenses. In terms of superior courts, the sole contribution by the state is $15 million for judges' salaries and benefits. The counties and cities cover the costs of district and municipal courts.
Local government's annual expenditures are $160.6 million for superior courts (a figure that includes public-defense costs in some courts' budgets). The cost of juvenile court operations is another $105.6 million, including detention, and the cost of the district courts is $80.1 million. Municipal courts cost $55 million, for a total local government annual expenditure of $401.3 million. This figure does not include the costs of jails or prosecution.
We are at a crossroads — and it is one being faced across the nation. Will we continue to have a justice system that is generally accessible to all, one that allows people in a civilized society to resolve their disputes peacefully, or will the court system in the United States become quite irrelevant?
Will we continue to provide due process and equal justice in the area of criminal law — one that is critical to the public's trust and confidence in the justice system and in our democratic form of government?
Will we continue to meet the needs in the civil justice system — providing a forum for ordinary people as well as major corporations to resolve their most personal and critical disputes — family law, landlord tenant, probates, real estate, personal-injury claims, contract and commercial litigation, toxic torts, and the like?
As we proceed through the work of the task force, every funding option must, and will, be on the table. While we have not pre-identified any approach, I can say that I am interested in reviewing several areas.
Should we have a more balanced approach to funding the trial courts, an approach more consistent with other states in which a greater sharing between state and local government occurs? In recognition of the courts as a separate branch of government, should a portion of the current tax system (property, sales, B&O taxes) be dedicated to cover the core responsibilities of the courts? Clearly, national reports caution against reliance on "user fees" and fines to meet this critical function of government in a free society. Should the courts be funded by a very small percentage of state revenues? Should the state create a new funding source? Should the current level of contribution by the counties be capped, as in California, with the counties transferring that fixed amount annually to a trust fund, and the state assuming responsibility for all increased costs? The task force will review every funding option.
Once we have developed a proposal through the efforts of the workgroups, identified the problem through steps including reviewing the core functions of the courts, considered the delivery of services by district and municipal courts, determined the appropriate funding responsibility between state and local government, and considered the appropriate source of funding, we will then develop the strategic plan. We will need to be smart in terms of our choice of those to carry the message, and in terms of educating the public and members of the Legislature.
The Court Funding Task Force is a critical project for the system of justice — it will take time and substantial effort.
The SCJA has identified this effort as our highest priority until the goal is accomplished. The superior courts and the limited-jurisdiction courts will devote their resources in terms of judicial officers working on the task force.
This is the opportunity to make changes that will not only improve the system, but also ensure that the third branch of government can meet the mission of the courts: to serve the public and ensure justice by providing the forum for the fair, efficient and cost-effective resolution of disputes in a timely manner.
We have the vision and the talent — let's join together, roll up our sleeves, and get to work.
Race and Justice Initiative
The second initiative of the SCJA this year is to help correct the racial disproportionality that exists in the application of Washington's drug laws, particularly in the jail and prison populations. As we know, jail costs are significant drivers in the cost of local government. There are many steps, some of them legislative, that we can take to address both disproportionality and these costs.
Racial disproportionality statistics. Just a few statistics contained in the Sentencing Guidelines Commission's report for fiscal year 2000 demonstrate why we as elected officials cannot remain silent on the issue of racial disproportionality. They show that while the state's African-American population is only three percent, African Americans constitute nearly one-third of all drug offenders in confinement. Although there are no figures available for drug use by race at the state level, the national figures show that 72 percent of all illicit drug users are white, 15 percent are African American and 10 percent are Hispanic, which is comparable to their relative proportions in the general population.
Yet, statewide in Washington, African-American males are sentenced for drug offenses at a ratio that is 7.8 times greater than for Caucasian males. In King County, African-American males are sentenced for drug offenses at a ratio that is 25 times greater; in Spokane County, the ratio is 13 times greater; in Snohomish County, the ratio is 5.9 times greater; and in Pierce County, the ratio is 3.9 times greater. This is clearly a statewide problem.
Lack of proportionate sentences. Based on our experience in sentencing drug offenders, many judges believe that the majority of those in prison and jail for violating drug laws are drug users who are incarcerated because of possession or delivery of very small amounts of these substances. With cocaine and heroin, the amount is usually only a fraction of a gram (an easy comparison is to a packet of sweetener, which is also one gram), with a street value of $10 to $20.
Citizen juror attitudes. Jurors in drug cases, particularly those in the majority of cases in which the defendant has a drug problem, routinely state that they endorse both treatment and education over incarceration as a response to the problem of drugs in our society.
Costs to local and state government. The estimated cost of incarcerating people convicted of drug crimes and sentenced to prison in 2002 is $177,796,492. It will cost Washington taxpayers $144,772,648 to house the 1,934 individuals imprisoned for drug-delivery crimes with an average length of stay of 35.3 months. For those 870 defendants sentenced to prison (not including those sentenced to jail) for non-dealing (possession) drug crimes, the cost to incarcerate them, with an average length of stay of 17.9 months, is $33,023,844. These figures do not include the costs of incarcerating addicts who commit other crimes such as burglaries, car thefts, and forgeries to obtain money for drugs.
The Washington State Institute for Public Policy report issued to the Legislature last year states:
The return for new beds for drug offenders probably turned negative in the 1990s. Some drug treatment programs provide better returns to taxpayers today.
Legislative change, significant savings possible. Last year, the Legislature passed HB 2338, which reduced sentences to some degree and captured a capped amount of 8.25 million for treatment purposes. This legislation will help, but we can take further steps to focus limited resources where they will be most effective — by providing treatment for nonviolent drug offenders at a fraction of the cost, which has the potential of reducing recidivism and turning drug addicts into productive citizens.
We cannot reduce the jail and prison populations without the corollary of drug treatment. We know as elected officials that the public will not support such an approach. However, based on jurors who regularly favor education and treatment over incarceration, it appears that the public has been focused on what works — drug treatment. Recognizing the state's grim fiscal forecast, the SCJA worked in advance of the legislative session with executive branch members, such as Department of Corrections Secretary Joseph Lehman and his staff, Juvenile Rehabilitation Administration Assistant Director Cheryl Stefani and her staff, and other organizations such as the Washington Association of Prosecuting Attorneys, to identify creative ways to save money, to preserve programs that affect the courts, and to ensure that our sentences are carried out. We have proposed a number of legislative changes that we believe will reduce racial disproportionality, result in fiscal savings, provide the opportunity for treatment to reduce recidivism and improve lives, and ensure that our sentences are carried out.
The cost of treatment in most drug courts is about one-tenth the annual cost of incarceration, or $2,500 per year. With additional statutory changes, we can reduce incarceration costs significantly. A portion of the additional savings should be set aside for treatment through drug courts or other court-supervised drug-treatment programs. Drug courts work; Washington is a leader, having formed the 12th drug court in the nation more than eight years ago. Today there are more than 700 drug courts around the country.
Drug crimes are one of the few crimes that aren't divided into degrees to reflect the seriousness of the offense — a person who "delivers" the amount of cocaine equivalent in quantity to 2/10ths of a packet of sweetener is given the same sentence as someone who delivers a quarter-pound.
The first-offender waiver could be restored to apply to drug-delivery cases. Drug possession, at least of small quantities, could be an unranked felony and thus avoid the possibility of prison costs. Those convicted of drug crimes could be moved from prison to partial confinement options earlier than is currently the case to participate in treatment in a less expensive setting.
As a justice system and a society, we can rethink old approaches. We should expand the concept of "partial confinement" for prison inmates to include far more cost-effective Community Justice Centers operated by the Department of Corrections, as well as Day Programming Centers operated in some counties. The Department should be authorized to use partial confinement for a longer period of time for these low-risk offenders. The defendants would report to these centers in order to complete court-ordered services such as drug evaluation and treatment, and domestic-violence evaluation and treatment. The centers could include job-readiness training, literacy training, and other programs defendants need to break the cycle. Then, rather than using expensive and often ineffective individual supervision in the community, supervision costs could be eliminated entirely.
We should extend the community custody portion of the drug offender sentencing alternative to a minimum of at least 12 months and preferably 18 or 24 months. The Legislature could create a new exceptional-sentence mitigating factor for cases in which the criminal history overrepresents the seriousness of the defendant's criminal history or the likelihood of committing future offenses.
The Legislature could also establish some limited form of community custody for those sentenced to jail, to ensure that the period of "confinement" served in a less expensive alternative to total confinement (such as electronic home detention, work crew or day reporting centers) is completed.
These are suggestions to reduce racial disproportionality and the costs of incarceration, while ensuring that our sentences are carried out, particularly in the area of court-ordered treatment to reduce recidivism.
All too often, discussion of serious problems like these bogs down in soundbites and spin. It should be apparent to Washingtonians of all points of view that our justice system needs a major rethinking. The state's judges, at all levels, are committed to taking part in reaching new solutions for new times, and a fairer system for all.
Hon. Deborah Fleck is outgoing president of the Washington Superior Court Judges' Association and a King County Superior Court judge.
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