Nov/Dec 2009

State News: August 2009


Fair & Impartial?

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The Operational Role

But I think of the state courts’ evolving role in yet another sense—not just their adjudicative but also their administrative role, heightened in recent decades by the nature of their litigants and their mushrooming dockets. Just think: Thousands upon thousands of repeat low-level offenders, often drug-addicted, in our state criminal courts, corroding their own lives and the vitality of our neighborhoods. Thousands upon thousands of domestic violence cases, too often beginning with an assault and a court-issued order of protection and ending with a murder-suicide. Thousands upon thousands of child abuse and neglect cases, foster care cases, juvenile delinquency cases — generation after generation of poverty, homelessness, mental illness, unemployment and crime. How sad! How tragic! What a waste of lives! What a waste of resources simply to be recycling these cases—these people—through the courts only to see them return again and again in worsening condition.
So state justice systems across the nation some years ago began asking themselves: Can our court interventions possibly be more constructive, more productive? Something more than just a case disposition, often with a sentence of “time served”? In effect, the process is the punishment. State court systems began asking themselves: Can these “laboratories” for democracy intervene positively, to help stop the downward spiral of so many litigants’ lives? And the answer came back, resoundingly yes.
And here too, while it is easiest for me to speak from personal experience in giving a few home state examples, what I’m about to tell you is by no means limited to New York state. It’s a widespread national, even international, development that began in our nation’s state courts.
I speak, of course, of community courts, focused on quality-of-life crimes—shoplifting, illegal vending, vandalism, prostitution. The judges are the leaders, convening all the necessary collaborators—prosecution and defense, as well as social service agencies—to effectuate a meaningful resolution that both punishes wrongdoing and repairs the community that has been harmed. And I speak of the drug courts—now numbering in the thousands across the United States—basically offering a “second chance” as an alternative to incarceration; or offering parents serious about ending their drug habit a chance for early family reunification; or offering drug-addicted juvenile offenders a chance to get back on course. And I speak of state mental health courts, holding out the chance for needed mental health services as an alternative to incarceration where that is appropriate. And I speak of domestic violence courts, aimed at preventing that all-too-frequent murder-suicide.
And on and on and on: countless examples of state court-led “laboratories” bringing together the necessary participants to find meaningful solutions for the underlying problems especially plaguing society in these tense and difficult times. Perhaps there is no better, no more important, example of state court interventions than the one I know will be addressed by Ohio Supreme Court Justice Eve Stratton and National Center for State Court Government Affairs Director Kay Farley, because they have been such passionate proponents of focus on families and children who grow up in our states’ family courts, too often simply graduating to their criminal courts.
And there in a nutshell are just a few of the challenges facing state courts today: how to deal most effectively with today’s enormously challenging legal issues, and today’s enormously challenging litigants—challenges even further magnified by the times, both in their complexity and in the scarce availability of legal resources to meet them.
Clearly, plainly, both in their adjudicative and administrative roles, the nation’s state courts are thrust right into the midst of the hottest legal, human, issues being litigated today. They are desperate for resources to meet the rising demands. They are necessarily dependent on excellent relations with their legislative and executive partners in government, who have both the power of the purse and the power of ameliorative legislation. And in the overwhelming number of states where judges are elected, not appointed, they additionally find themselves in the cauldron of political issues surrounding judicial selection. New challenges; new headaches. Definitely a new day for our nation’s state courts.
—Judith S. Kaye retired in 2008 after serving 15 years as the chief judge of the New York Court of Appeals, longer than any other chief judge in New York’s history. Earlier this year she joined the law firm of Skadden, Arps, Slate, Meagher & Flom LLP.
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