COSCA White Papers

As I pointed out in 2010, my national group, the Conference of State Court Administrators (COSCA) issues a policy paper each year, known to many as the "COSCA White Paper." Working on racial disproportionality in child welfare and other systems has sensitized us to the freighted significance of such terminology. We now refer to it as a Policy Paper, for that is what we hope the Policy & Liaison committee will produce, a statement of provocative and helpful policy guidance for the leaders of the states' court systems. As the current chair of that committee, I hope to release the newest paper, "Courts Are Not Revenue Centers," in the very near future.  In the meantime I thought it would be helpful to share a compilation of the last decade-plus worth of very good papers:

Position Paper on Problem-Solving Courts (1999)

Self-Represented Litigation (2000)

Access to Court Records (2000)

State Courts' Responsibility to Address Issues of Racial and Ethnic Fairness (2001)

Effective Judicial Governance and Accountability (2001)

Court Leadership in Justice Information Sharing (2002)

Effective Management of Family Law Cases (2002)

State Judicial Branch Budgets in Times of Fiscal Crisis (2003)

Safety and Accountability: State Courts and Domestic Violence (2004)

The Emergence of E-Everything (2005)

Emergency Preparedness in the State Courts (2006)

White Paper on Court Interpretation: Fundamental to Access to Justice (2007)

Promoting a Culture of Accountability and Transparency: Court System Performance Measures (2008)

Digital Recording: Changing Times for Making the Record" (2009)

The Demographic Imperative: Guardianships and Conservatorships (2010)

Grant Award to Lone Star Legal Aid

Readers of this blog have seen a number of posts on civil access to justice, the self- or un-represented, and related topics, topics of sustained interest for me and many in my work world.  Today I am pleased to echo the announcement that Lone Star Legal Aid, in partnership with the Texas Legal Services Center and OCA, received a grant award from the Legal Services Corporation's TIG (Technology Improvement Grant) program. As described in this excerpt from their press release on a total of $3.6 million in grants:

LSC-funded programs are overwhelmed with requests for civil legal assistance, in part because of the economy. Courts—especially housing and family courts—have seen an increase in the number of low-income individuals without a lawyer. Studies in several states have found that about 80 percent of the legal needs of low-income families go unmet.

The systems that LSC-funded programs use to conduct client intake—most often telephone hotlines and in-person interviews—are often swamped by requests for legal services, frustrating clients and programs. The new round of technology grants continue efforts to develop new, user-friendly online intake systems for clients who need alternatives that permit the filing of applications for legal assistance outside normal business hours. . . .

In an effort to help people who must navigate courts without a lawyer, Lone Star Legal Aid will undertake a project to merge Texas Law Help, which provides self-help forms, and Texas Courts Online, which offers information about the state court system. The project will create a one-stop, easy-to-understand information source and include Spanish and Vietnamese translations of legal forms.

This topic always reminds me of an excellent 2005 report that I've saved, called "Civil Legal Assistance for All Americans," by Jeanne Charn and Richard Zorza.  It has seemed to me that the full access vision they espouse should be a template for our work in Texas, with the Census bureau recently documenting the increase of people living in poverty in our state, from 4.26 million to 4.63 million.  Charn and Zorza advocate a full-access legal system with the following foundational principles:

Scope and Coverage of a Full-Access Legal Services System

• An expanded delivery system should serve moderate- as well as low-income people.
• The types of legal needs for which assistance will be provided should be defined as a matter of policy. Specific service priorities, within broad categories, should be determined locally.
• Consumers will be entitled to advice and assistance, but an attorney’s services should be available only when lawyers provide the highest-quality and most cost-effective response.

 Consumer Assurances and Responsibilities

• Consumers should have a choice of providers appropriate to meet covered needs.
• An expanded delivery system should be consumer-driven, clientcentered and holistic.
• An expanded delivery system should protect representation of unpopular claims and insulate funders from the appearance of interference with service to individual clients.
• Consumers should be responsible for copayments for many services as well as reimbursement of out-of-pocket costs related to service.

Provider Diversity and Innovation

• Courts and administrative agencies should reform their rules and processes and provide information and assistance in order to reduce, wherever possible, the need for full-service attorneys.
• The private bar should be the first resource for low- and moderate income people with legal needs.
• Private attorneys should have opportunities to provide service, on a paid basis, when they are a cost-effective and high-quality option.
• Paralegals should provide service in all areas permitted under existing rules. Policymakers and bar leaders should support expanded paralegal practice with appropriate quality assurances and consumer protections.
• Technology should be fully deployed to deliver assistance directly to consumers and as an integral part of the infrastructure of a full-access delivery system.

I hope that we can have a rational conversation here in Texas and pursue a vision that will provide justice for all.

Workers' Compensation

I realize the ABA is viewed as liberal in general and plaintiff-oriented in civil matters, so caveat emptor.  I am a member and I read their magazine, as well as the criminal justice section magazine, which, on another topic of interest in my world, has an article in the most recent issue on Eliminating Excessive Public Defender Workloads. 
The ABA Journal recently ran a pretty scathing article on the Texas Workers' Compensation System; here is a thematic sentence: 

[S]everal decades of tweaking—through legislation, policy and business practices mostly meant to target scams by physicians and medical services providers—have gone beyond simple reform. Critics of the system say it has become so hostile, so skewed toward delay and denial that lawyers, physicians and even legitimate claimants have been driven away.

This is a topic that I have been around, working in the legislature back in the late 1980s/early 1990s, and I know several of the people who were intimately involved in the machinations back then, but it has never been an area of actual understanding on my part.  (So I confess my ignorance.) But I found the article troubling and compelling, and if I were a legislator I might be stirred to attempted action.  But in my actual role, what interests me most is the removal of matters of dispute from the system that is contemplated by our three-branch system of government, the courts. Here is a chart from OCA data that succinctly tells that story.

Judicial Compensation

The reporting on the Texas Department of Transportation's new director's compensation prompts me to point out the stunning disparity between the numbers under discussion there and the compensation we pay to judges in particular (not to mention other public servants such as yours truly), and the Chief Justice in particular.  The prior director of TxDOT (an engineer) received $192,500 per year and the TxDOT board wants to pay the new gentleman (an MBA) $381,000, but according to today's Statesman, he will have to settle for only $292,500.  I hope that he will feel better knowing that the latter at least puts him one step closer to the top of the comparables list that the Judicial Compensation Commission published (based on the General Appropriations Act) as Table 10 in their most recent (2010) report, which has these figures for "Salaries of State Constitutional, Elected and Other High-Ranking Executive Office Holders":

Executive Director: Employees Retirement System $300,000

Executive Commissioner: Health and Human Services $210,000
Executive Director: Department of Transportation $192,500
Commissioner: Texas Education Agency $186,300
Executive Director: Department of Criminal Justice $186,300
Commissioner: Department of State Health Services $183,750
Executive Director: Department of Information Resources $175,000
Executive Director: Department of Public Safety $162,000
Executive Director: Texas Youth Commission $160,000
Comptroller of Public Accounts $150,000
Attorney General $150,000
Governor $150,000
Executive Director: Commission on Environmental Quality $145,200
Agriculture Commissioner $137,500
Commissioner of the General Land Office $137,500
Railroad Commissioner $137,500
Secretary of State $125,880

Average $169,966
Median $169,000

The Chief Justice of the Supreme Court of Texas, and the Presiding Judge of the Court of Criminal Appeals, are paid $152,500.  (The Commission's report recommended increasing that amount to $168,000 but of course there was no serious talk of judicial pay raises during the last session.)  Other Texas judges' salaries go down from there, except for some county court at law judges whose locally-supplemented pay puts them above their arguably higher-ranked district and appellate brethren. 

And for the record, after 26 years of state service as a lawyer, general counsel and now agency director, I make $130,000 and feel privileged to make that kind of money in this economy, get to do what I do, and work for Chief Justice Jefferson.

Capital Punishment

At the request of Senator Carona's staff, a few days ago I was privileged to meet with an international group, including members of parliament from Sri Lanka and Nepal. Inevitably, the conversation turned to capital punishment in Texas, and I told them that imposition of the death penalty has gone down fairly dramatically in recent years.  Later on I wanted to fact check myself and asked our amazing Judicial Information manager, Angela Garcia, to run this graph for me from our data.  

In addition to reassuring me that I told them correctly, one thing I find interesting about this graph is the fact that life without parole was not adopted until 2005 (S.B. 60 by Lucio), but the downward trend was well established well before then.  My other thought was, "how much of this trend is driven by Harris County?"  TDCJ's information shows that 106 of 308 offenders on death row are from Harris County. Here is what OCA data shows over time.

Finally, in direct comparison to the first chart, here is what our data shows for Harris County's choice of the death penalty versus other punishment in capital cases.

Leadership, Collaboration, and Data

In September I had the privilege of addressing the Annual Judicial Conference, on changes facing the judiciary. Two themes were the growing significance of litigants presenting special challenges - children, the unrepresented, the Limited English Proficient, the mentally impaired, the elderly, and so on; and the diminishing significance of tort litigation as part of the state court caseload. I suggested that judges embrace their growing role as gatekeepers to services and sorters of troubled humanity, and that they should expect, and be expected, to operate as problem-solving judges and not only in the traditional, adversarial mold.

A great resource for judges on how to facilitate positive change and achieve better outcomes, is "Building a Better Collaboration - Facilitating Change in the Court and Child Welfare System," an NCJFCJ Technical Assistance Bulletin, which is not available online to my knowledge. In addition to basics of child welfare law, the book goes through learning organizations ala Peter Senge; leadership in general and judicial leadership in particular; creating a collaborative, problem-solving culture; using effective meetings and communication; the importance of data and evaluation; and the strategic achievement of planning, effecting and sustaining change. It is a digestible and yet complete guide to what we know about moving groups of well-meaning humans through a deliberative and synergistic process of improvement.  For the Shared Solutions Summit and in general when pondering this work, I boil down the method into Leadership, [multidisciplinary] Collaboration, and Data. 

Race and Risk II

At the beginning of the month I introduced Donald Baumann on this topic of continuing interest, and have been in contact with him since then. Here is Donn's response to my post, setting out his view of the current state of the data.

"Over-representation comes from several sources and we have evidence for some of them. According to the latest National Incidence Study (NIS 4), African American families are more likely to maltreat their children under certain conditions. However, if you look closely at the Texas CPS data on substantiated maltreatment, controlling for poverty, single parenthood, young parents, number of children and other factors, a picture of racial bias emerges.

What we find is that even at lower levels of risk of future maltreatment (which includes prior reporting), workers are more likely to substantiate African Americans than Anglos. What this means is that both bias and maltreatment may play a part in all of this but no one knows what that part is. In our view, poverty is the key because it is viewed differently for African Americans than it is for Anglos and, as a result, the threshold for substantiation is lower for African Americans than Anglos. At present, however, no one knows what features of poverty are related to substantiated maltreatment and what are related to bias.

One major source of over-representation that we know about is the higher reporting rates for African Americans, relative to Anglos. This higher rate appears to move through what we refer to as the CPS Decision-Making Continuum from intake to service provision and placement of children into care. Thus, some of the higher rates of disproportionality results from reporting and that contribution to disproportionality continues to move through the system.

So why is there so much disproportionality at reporting? Some have argued that people who are low income are often under greater scrutiny through their contacts with social service programs, increased law enforcement in low-income neighborhoods, etc., so this likely increases reporting about these families - thus, we can't say with certainty whether "repeated contacts" are truly indicative of greater rates of maltreatment among African Americans or of unidentified maltreatment among other racial groups.

Others have argued from data such as infant mortality rates that the reporting rates appear similar to the fatality rates and, because the latter is not as subject to bias as reporting rates, the reporting rates are real.

Finally, we don't know much about the potential for reporting bias. It may be that, much like the substantiation decision, the decision to report contains some disparate features that are related to actual maltreatment and some that are related to bias.

Another source of over-representation is decision-making bias that contributes to the higher rates of placements into care for African American children relative to Anglos and the lower rates of reunification for African American children relative to Anglo children. Regarding the latter two sources (flow in and out of the system) we controlled for the same factors as above for substantiation and; in the case of reunification, drug abuse and inadequate housing are additional factors that are controlled for.

Our findings are similar to those with regard to substantiation. What this means is that both underlying risk of maltreatment and racial bias play a part in how cases flow in and out of the CPS system of care and disproportionality is the result."