The Next Generation II

As I wrote in April, those involved with the courts are very concerned about the widespread lack of knowledge and appreciation for our system of government and the rule of law. (E.g., a large majority of Americans can't name the three branches of government, much less understand what they each do, and many high school seniors can't pass the test that applicants for citizenship must pass.)
Well, I just learned what retired Supreme Court Justice Sandra Day O'Conner is doing about it. She has started an organization that creates really fun and educational computer games, and is spreading it throughout schools in our country.  Originally branded as OurCourts.org, they have expanded the games to cover the other branches of government, under the banner http://www.icivics.org/.  I just sent an email to my 11-year old to ask him to check it out.  If you know a young person you should do the same, and if you are interested in helping further this cause let me know, I am touch with the volunteers in Texas who are taking on this cause in our schools.

Race and Disproportionality

Reading the NYT Week in Review article on Race, perhaps I should be reticent about engaging in this topic.  But, it is important, and it isn't all just hand-wringing.

The Texas Department of Family and Protective Services, in partnership with Casey Family Programs, has done some remarkable, ground-breaking work on the issue of disproportionality in the child welfare (child abuse and neglect) system.  Check out the DFPS website  on this topic, where I got this:

Data from 2007 shows African-American children in Texas were almost twice as likely as Anglo or Hispanic children to be reported as victims of child abuse or neglect. Even after adjusting for this higher number of reports the number of substantiated reports of abuse and neglect involving African-American children was also disproportionately high. So was the number of African American children removed from their families. Even when other factors are taken into account African American children spend significantly more time in foster care or other substitute care, are less likely to be reunified with their families, and wait longer for adoption than Anglo or Hispanic children.

I heard more about national work in this area at the recent conference of the National Council of Juvenile and Family Court Judges, under the program banner "Courts Catalyzing Change: Achieving Equity and Fairness in Foster Care Initiative (CCC)", funded by Casey Family Programs and supported by the U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention (OJJDP), brings together judicial officers and other systems’ experts to set a national agenda for court-based training, research, and reform initiatives to reduce the disproportionate representation of children of color in dependency court systems.

As is commonly understood, the criminal justice system has parallel issues, perhaps in even starker statistical terms.  The last time I checked, African-Americans were about 11.5% of Texans, and about 48% of the prison population.  I hope to develop this angle further.

Attention Jury Managers

There is a new online diagnostic tool designed to help state court administrators and jury managers evaluate and improve jury management operations and procedures, just released from the National Center for State Courts - Center for Jury Studies. It is called Jury Managers Toolbox, check it out. Use of the Jury Managers’ Toolbox is restricted to court administrators, clerks of court, jury managers, and other administrative staff of state and local courts in the United States.

Process Server Certification

In 2005, shortly after I came into this role, the Supreme Court of Texas advised me that they had approved amendments to Rules 103 and 536(a) of the Texas Rules of Civil Procedure, effective July 1, 2005, governing statewide certification of process servers. The Court also issued a companion order to establish the framework for certification of those approved to serve process under the revised rules, creating a Process Server Review Board, and ordering my office to provide "clerical support" to the new board.  Later the Court adopted Rule 14, Rules of Judicial Administration, to formalize the governance of this program.

Recent reports of systemic problems of service of process in New York and elsewhere have reinforced to me the value of having some regulation around the statewide service of process.  The Federal Trade Commission just released a new report entitled "Repairing a Broken System: Protecting Consumers in Debt Collection Litigation and Arbitration," which highlights the anecdotal information available (pp. 8-9, footnotes omitted):

Although no empirical data were presented or submitted, panelists from throughout the country estimated that sixty percent to ninety-five percent of consumer debt collection lawsuits result in defaults, with most panelists indicating that the rate in their jurisdictions was close to ninety percent. . . .

Roundtable participants differed as to whether inadequate or improper service is prevalent. Many consumer advocates and judges who adjudicate debt collection cases stated that inadequate or improper service occurs frequently. One local official reported that her agency’s comprehensive investigation of process servers in New York City revealed that “many are not performing service. They are filling out false affidavits of service. They are not going to the addresses. They are not sufficiently checking the addresses." A Chicago judge explained similarly that one of his colleagues had conducted a “spot audit” of one process server and found that he “claimed to be in areas thirty miles apart in the Chicago-land area within minutes . . . . And we [asked,] ‘Is he Superman?’”

So I think the Supreme Court of Texas was prescient in taking on some minimal qualifications check for people who will be permitted to serve process for courts throughout Texas.  But not all are fans; there seems to be one or two citizens out there in particular who have complained to the legislature, filed a federal lawsuit (which was dismissed), complained to the State Auditor, and who knows what else, about the very existence of the PSRB.  Meanwhile, the number of process servers in the program has gone from 1,200 grandfathered in 2005, to 5,300 this month.  Clearly there are people who want to do this work, and equally clear, we need to know and approve of who they are. 

Automated Registry

Are you a judge hearing criminal cases, or do you work for such a judge?  If so you need to check out the Automated Registry (AR), a secure browser-based system provided by OCA, that allows authorized individuals to submit a query for a person appearing before the court. The query is submitted to multiple state agency databases and all results are returned to the AR system in real-time. The user is able to view the results in a consolidated format, and is accessing great data:  information related to state and national criminal history, state and national warrants, concealed handgun licenses, citizenship status, state and national driver’s history, vehicle registration, sex offender alerts, probation violators, protection order status, and threat to law enforcement alerts; information on probation, parole, and incarceration for an individual (Texas only); and information about an individual who has had mental health care services provided by the State of Texas mental health system.

There is no cost to gain access to the AR system. However, each user must have a computer that is connected to the internet, and a security token (which we provide). Users will need to complete an AR User Agreement and submit the signed agreement to OCA for approval. Once the user’s request has been approved, OCA will provide the user with a security token, AR user-id and AR password. Non-judge users requesting access to DPS and TDCJ data will need a criminal background check performed. All users accessing the DPS data will be required to take a TCIC (Texas Crime Information Center) Certification class, if not already TCIC certified.

Interested?  Check out the website and call Thomas Sullivan at (512) 463-8109 or Jeannette McGowan at (512) 936-1806.

State Jails Redux

I have been following with interest the suggestion by House Corrections Committee Chairman McReynolds that the state jail concept be reconsidered, as reported in Grits and the Statesman. If Chairman Whitmire and District Attorney Bradley were the architects of the system, I was the contractor, as the director of the Punishment Standards Commission, which identified the 4th degree felonies that became state jail felonies and proposed a more community-focused system for those offenders; and then as the general counsel for the Board of Criminal Justice when the state jails were implemented. (And by the way, in the 1993 session John Bradley had been hired by me as the prosecutor consultant to the commission, my recall is it was later that he became a consultant to Sen. Whitmire's committee directly.)  Not to say that I scooped everyone, because these issues are not new, but this is from 2007 in the newsletter version of CourTex:

[A] correctional agency has an inherent interest in maintaining some otherwise unpopular features in state sentencing laws - good conduct time and parole - that provide "back end discretion," and therefore some behavioral incentive during incarceration.  This is the enduring lesson of the state jail sentencing scheme, which does not provide any such incentive, and has proved challenging to implement as a result.  Other problems with the state jail innovation were (and remain): inadequate funding for rehabilitation of the low-level offenders targeted; prison-like state jails rather than smaller, community based facilities; and minimal judicial use of the ability to review an offender's progress in custody. 

So I think this is a healthy debate to have, and I basically agree with today's Statesman editorial, "fine tune and fund, don't scrap."  The key commitment that was made in 1993 was to achieve dramatically more "truth in sentencing" for violent offenders, enabled by facility construction and the diversion of the state jail population to state jails.  The other key component that was at least partially achieved was the location of some of the state jails in greater proximity to the communities of origin.  It may be significant to note that the two large jurisdictions that utilize state jails to a greater extent than their population or prison admissions would suggest (see bar chart below), are Harris County and Travis County.   Harris has Kegans and Lychner state jails, and Travis has the Travis state jail.  (It is ironic that Harris County testimony about the limitations of the state jail system triggered this debate, with their very high utilization.)

If the debate is to continue, I suggest the legislature focus on the problems to be addressed and not on whether the system should be abandoned.  Certainly the identification of the state jail category of felonies was significant and should not be undone, but must the punishment scheme be set in stone?  Perhaps some form of incentive for behavior can be built in, to replace the judicial option that no judges use, and allow a state jail felon some ability to accelerate his release.  Perhaps there should be a short period of supervision at the end of the state jail term.  Perhaps we should revisit the idea of isolating all state jail felons in their own facilities, as though they will be infected by felons convicted of higher degree offenses. Perhaps we should revisit the state governance of facilities that were originally conceived as "community corrections." And undoubtedly, there should be additional resources to support successful reintegration. 

John R. Justice Student Loan Repayment Program

As you may know the John R. Justice Student Loan Repayment Program (JRJ) will provide 10 million dollars in loan repayment assistance to state and federal public defenders and state prosecutors who agree to remain employed as public defenders and prosecutors for at least three years.  JRJ will be administered by Governor-designated state agencies that must register and apply July 27, 2010. Funds will be available to states based on the total population of each state with a minimum base allocation of $100,000. It is important that you work to ensure that your governor designates a state agency in advance of the deadline.  For more information and application forms visit BJA's website.

Last week the Governor designated the Texas Higher Education Coordinating Board to administer the John R. Justice Program (a student loan repayment program) in Texas. Texas is eligible for a $700,000 grant to be split evenly between the Texas prosecutors and public defenders. Our office, specifically the Task Force on Indigent Defense, met with representatives from the Texas District & County Attorney Associations and the Coordinating Board to develop the criteria and plan for the administration of this loan forgiveness program. The application is due on July 27th.

Independence Day

I am among the 90% of those in my age bracket - let's leave it at that - who are at least very proud, maybe even extremely proud, to be an American, according to a recent Pew survey of patriotism.  Most of us are pretty darn proud - those two categories make up 83% of Americans overall - but this catches my attention:

Most people (59%) say they are about as patriotic as others. Just a third (33%) claim to be more patriotic than most other Americans. Notably, those who take a particularly dim view of the federal government - including those who agree with the Tea Party movement - are among the most likely to consider themselves more patriotic than most people in this country.

In the mode of 4th of July ruminations, and as someone who works for and believes in the potential of the government, I find myself a little troubled by the upsurge in being down on it.  I make a plea for the recognition that there are good, earnest people working throughout government, for the public's benefit, and in particular for appreciation of the weakest branch of government. 

As I pointed out in April, those in the judicial branch already fear that our reverence for the rule of law (and the safety and prosperity it enables) may not transcend the generations. In times of budget stress particularly, we have more prosaic concerns with routine threats to our resources and ability to provide strong courts, access to judice, a fair and impartial system, and so on.  As Alexander Hamilton put it in Federalist No. 78, the judiciary "will always be the least dangerous [department] to the political rights of the constitution" and "is in continual jeopardy of being overpowered, awed, or influenced by its coordinate branches . . . . "

So for Independence Day, or at least the work week right after it, thank your court system for being there.  We are thankful to have meaningful work providing for the administration of justice.