Evidence-Based Sentencing

Everywhere you turn there is talk of evidence-based practices in criminal justice, in fact I talked about this on February 8 when the model curriculum for judges came out from the National Center for State Courts, The National Judicial College, and the Crime and Justice Institute. 

More recently an NIC-funded report came out from the Center for Effective Public Policy, in partnership with the Pretrial Justice Institute, the Justice Management Institute, and The Carey Group, entitled "A Framework for Evidence-Based Decision Making in Local Criminal Justice Systems."  It looks like a good document, but I must say that everywhere I look at this issue, I see unresolved the problem of reconciling EBP with plea bargaining.  The NIC report nicely summarizes the issue (but ultimately punts) thus:

[F]ew jurisdictions have available to them information about an offender’s risk to reoffend or criminogenic needs at the point of plea negotiation, meaning that key decisionmakers—prosecutors and defenders—negotiate these agreements absent information about how best to influence future criminal behavior based on the unique characteristics of the offender being sentenced. As a result, in most jurisdictions, cases are passed along to corrections and/or probation, which then assess risk/needs and, in many cases, work to retrofit research-based interventions to court-imposed sentencing parameters. Arguably, the introduction of risk/need information at the plea stage—and perhaps earlier—could have a profound effect on judicial decisions, and yet this is not without its due process and resource challenges. This is another of the important issues the initiative will address in Phase II.

Promising Court Practices

In this time of budget cuts, courts across Texas should be looking for solutions to deliver justice more efficiently and effectively. Last Friday my office and our Judicial Council Committee on Court Resources met with representatives of the Travis County Court system for a lively briefing on several promising initiatives that they have implemented. Our enormous thanks to District Clerk Rodriquez-Mendoza and Judges Naranjo, Dietz, Lynch and Earle, and their talented staff. We learned more about:

•  The Law Library's self help program;
• I-Jury Online jury impaneling;
• Travis County Impact Supervision;
• paperless courtroom practice in the civil courts, including Efiling, document management, and the brand new Civil Courts Online site which lawyers can use to schedule hearings;
• and the broad variety of problem-solving courts they operate: drug diversion, DWI, misdemeanor and felony mental health, and veterans court.

Other promising Texas court practices that are documented on the Internet include:

 Counties such as Harris and El Paso that use direct electronic filing of criminal cases, see “Evaluating the Impact of Direct Electronic Filing in Criminal Cases: Closing the Paper Trap,” Task Force on Indigent Defense (2006).

Recent study results on mental health courts and mental health public defender offices in Tarrant, Dallas and Travis counties. These programs create means through which an arrest can be used to address therapeutic needs. From its findings the study concludes that these specialty interventions offer good alternatives to incarceration that save money and address fundamental problems leading to criminal behavior.

The use of court performance measures to become “radically transparent” in Lubbock County, see “Radical Transparency in Action,” Lubbock County Board of Judges (2007), and other materials available on their website.

Based in Lubbock, the Regional Capital Public Defender Office, which is serving 65 counties and hopes to expand to serve 240.

The Committee on Court Resources also recently surveyed county auditors on their court budget situations, and learned (or learned more) about the following local initiatives, many motivated by jail population:

Williamson County: the County Attorney's 2007 direct-file case screening system to speed up adult misdemeanor dockets and alleviate jail crowding, and implementation of Tyler Odyssey's Prosecutor software.

Tom Green County: systemwide meetings to expedite processing times for jail inmates, cutting out of county housing costs by 96%.

Tarrant County: Differentiated Felony Court Management in the Tarrant County system, resulting fewer pending cases and reduced numbers awaiting trial in the jail; and the Tarrant District Attorney's Efiling and electronic open access to case files for defense counsel.

Nacogdoches County: video magistration by justices of the peace and a paper-ready position in the district clerk's office to speed the process of getting an inmate ready to transfer to TDCJ (from 38 days down to 3!), yielding a 32% decrease in jail population and allowing elimination of one jail shift.

Kerr County: a new weekly plea docketand video teleconferencing between courthouse and jail, and exploration of more video connections for the counties around Kerr that share judicial districts.

Hunt County: An intake prosecutor to eliminate a backlog; bar code scanning for tracking of court evidence; and audio/video technology for courtroom presentation of evidence.

Harris County: Creation of the Harris County Criminal Justice Coordinating Council to implement recommendations from a Justice Management Institute report involving jail population, indigent defense, special needs offenders, and other systemic issues; and a State Jail Impact Court for early and meaningful intervention on drug offenders.

Grimes County: Video magistration, streamlined attorney ad litem compensation; and clustering child protection and IV-D courts for greater efficiency.

Fayette County: Moving to Tyler Odyssey case management.

Dallas County: Several varieties of specialty courts and an updated system for attorney appointments.

Castro County: More frequent hearings to reduce jail population, and regular checks of criminal cases to discover those that may have slipped past due to out-of-county bonding.

Cass County: Construction of a criminal justice center with space to allow both district and county court to operate simultaneously.

Camp County: Adding scanning capability and a computer to the district court room for access to case records from the bench.

Cameron County: County-wide information technology implementation.

Caldwell County: Additional district attorneys, and judges receiving a weekly jail roster to help move cases.

Burleson County: Court compliance officer to aid in collection of fines, fees and costs.

Bexar County: Magistration system, rocket docket, and movement toward credit card acceptance for all courts to expedite payments.

Bastrop County: Special attention to processing cases in compliance with indigent defense requirements.

Law.Gov

Earlier this week I attended an interesting workshop put on by UT Law Library and Public.Resource.Org, to promote "a proposed registry and repository of all primary legal materials of the United States." There were lots of librarians, including those from Tarlton, the Legislative Reference Library, and the State Law Library, people from the legal publishing industry including law bloggers, bar and court representatives, and the conveners. We reviewed the current offerings in Texas at the state legislative and judicial levels,as well as the Administrative Code and several options for viewing municipal ordinances. We talked about authentication and the definition of "primary legal materials"; see the law.gov website for their definition of the latter, which I note includes appellate briefs. As for the former, one thing we did not discuss about authentication of primary sources was a project that might be of interest to my friends in the law school world:

"A Note on Authenticity: With the law, close just isn't good enough. Primary legal materials need to be authentic and digitally signed. As the American Association of Law Librarians said in their ground-breaking report at the AALL National Summit on Authentic Legal Information in the Digital Age, 'it is time to save the legal information system.' We propose to enlist the law students of America as auditors during the startup phase of Law.Gov, asking students to systematically compare on-line to printed materials. The students would gain reputation points in the registry, which they could use to demonstrate their public service when applying for jobs or clerkships. Would such a system work? When we tour the law schools, we intend to dig in and ask that very question."

The most stimulating part of the day was provided by two practitioners of computational legal studies(TM), who used techniques I cannot pretend to describe, to present topics I could understand, such as "Visualizing Temporal Patterns in the United States Supreme Court’s Network of Citations," "The Development of Structure in the Citation Network of the United States Supreme Court," and "Six Degrees of Marbury v. Madison : A Sink Based Visualization." Fascinating stuff, check it out.

Texas Judicial Organization

As a strategic challenge, the most significant and pervasive issue from a state perspective is the high degree of decentralization, complexity, and shared local/state responsibility within the Texas court “system.” The (1993) Citizen’s Commission on the Texas Judicial System said:

"Texas has no uniform judicial framework to guarantee the just, prompt and efficient disposition of a litigant’s complaint. The framers of our Constitution deliberately designed a system to 'localize' justice, establishing a multiplicity of largely autonomous, conveniently located courts across the state. With the passage of time, the organization of the courts has become more, not less, cumbersome."

More recently (2007), the tort reform group Texans for Lawsuit Reform described the system thus:

"The Texas judicial system is complicated, inefficient, and poorly structured to handle modern litigation. Since its basic structure was created in the late 1800s, it has been expanded periodically on a purely ad hoc basis. As a result, the system is replete with anomalies and peculiarities. Problems exist at every level and extend to the administration and funding of the courts. Comprehensive reform is needed to produce greater coherence, efficiency and accountability."

In the system as described in these excerpts, there are a lot of actors. Along with everyone else in 254 counties (by far the largest number in the United States), many of them independently elected officials such as district and county clerks, there are over 3,700 judges currently working in Texas:
98 appellate judges on 16 appellate courts
453 district judges in 453 districts
129 associate judges, magistrates etc. (non-elected judges)
280 visiting judges eligible for assignment (previously elected judges)
254 constitutional county judges (not all of whom hear cases)
249 county court at law and statutory probate judges
822 justices of the peace
+1463 municipal judges (non-elected judges)
= 3,748 judges

The system is not only localized, it is administratively fragmented at the state level. Several functions that should naturally fall within the administrative office of the courts as an arm of the Supreme Court, which has constitutional responsibility for administration of the judicial branch, do not: administration of drug courts, which resides in the Office of the Governor under Ch. 469, Health & Safety Code; administration of adult probation, which resides in the Department of Criminal Justice under Ch. 509, Government Code; and certification of court interpreters, which is handled by the Department of Licensing and Regulation under Ch. 57, Government Code. The power of appointing the nine regional presiding judges, who in turn appoint visiting judges and hear recusal motions, rests with the Governor instead of with the Chief Justice or the Supreme Court. And although the Supreme Court has constitutional responsibility for the administration of the judicial branch, judicial education was legislated away from the Supreme Court in 1993, to be administered by the Court of Criminal Appeals.

The high degree of decentralization, complexity, and shared local/state responsibility within the Texas court system creates a challenge for any who would strive for greater efficiency, uniformity, or standardization. However, shared governance of the mechanics of justice is embedded in the Texas Constitution and carried forward by the Philosophy of Texas State Government: “Decisions affecting individual Texans, in most instances, are best made by those individuals, their families, and the local government closest to their communities.”

Judges Joining Together

As I mentioned last July, Chief Justice Jefferson and I are active in our respective national associations. Personally I have always found there to be great value,and comfort, in connecting with people who do what you do, but in other states. The National Center for State Courts supports our groups (which are limited to chiefs and state court administrators) but also a number of other groups that may be of interest to judges in Texas. See the whole list on their website, and the one I wanted to single out today, because they have a brand new website, is the American Judges Association. They also publish Court Review, a very useful magazine; for example, the current issue has an article on how to have an effective commission to address racial and ethnic bias in the courts. Another group that I have been very impressed with, which is not supported by NCSC, is the National Council of Juvenile and Family Court Judges; El Paso District Judge Patricia Macias is the current President, and I know several other Texas judges who are very active with them, including our Jurist in Residence, John Specia, and District Judge Darlene Byrne, here in Travis County.

Kids in Court

I notice that Senator Whitmire has a Criminal Justice committee hearing scheduled for May 13, partly to discuss their interim charge #10 on "facilitating the fair and accurate courtroom testimony of children and reducing the trauma associated with testifying, particularly for children who are victims of sexual abuse." But my current interest in children in court is more on the civil side, meaning child abuse and neglect or "CPS" cases, and is animated by the Beyond the Bench conference for Houston that I recently described. There I learned of a widespread consensus in Houston against bringing children to court in CPS cases; in fact the Family Division of the District Courts has a local rule stating:

"3.5 Interview of Child / Child's Testimony. In all cases in which the court deems testimony of a child to be necessary or required by statute, the attorney wishing to have the child interviewed shall arrange a specific time through the court coordinator for the court to interview the child. No party is to bring a child to the courthouse to testify without prior arrangement pursuant to this rule, unless the child's attendance is required by court order including a writ of habeas corpus or attachment. The attorney or pro se party who is responsible for the child's attendance at court shall immediately notify the court coordinator of the child's presence in the courthouse. The child shall not be brought into the courtroom without the express consent of the judge or associate judge."

Contrast that consenus with the Texas Family Code, §263.302: “The child shall attend each permanency hearing unless the court specifically excuses the child’s attendance.” And §263.501(f) (placement review hearings) states: “The court shall consult with the child in a developmentally appropriate manner regarding the child’s permanency or transition plan, if the child is four years of age or older.”

In an article in the Texas CASA newsletter, Judge Karin Bonicoro discusses why she believes the Family Code makes the appropriate call on this issue, in spite of the difficulties of bringing children to court:

"Both the court and the child benefit from the child’s participation. As a judge, I have found that the child’s attendance and voice add an indispensable component to the hearings and my decision making process. When I am able to observe the child, I get a sense of that child’s condition and abilities (physical, intellectual, social, verbal). I sometimes see the effects of the psychotropic medications the child is prescribed, something I would miss entirely if the child was absent. In some instances this has led to orders for an independent medication review, resulting in changes in, or discontinuation of, the child’s psychotropic medications. In talking to the child, I learn their wishes regarding permanency, and their plans upon leaving care. I may learn about a previously unidentified relative or kinship placement option. The child can tell me in her own words how she feels she is doing in her placement or in school, or why she has engaged in a particular behavior. She may request services or other accommodations she thinks might benefit her. A child may request information on the location or well-being of a sibling in care, or request the opportunity to communicate with specific family members. When a youth informs me he plans to return to a particular person when he leaves care, I have the opportunity to try to have that person located and, if appropriate, included in the transition planning for the youth."

One thing that will help the children and judges in Houston is construction of a new, much more suitable courthouse for these cases, making it much more feasible and less stressful for the children to come to court. Apparently bonds have been approved by the voters, but not issued by the commissioners court.

MeMeMe

I used to have someone who worked for me who said "MeMeMe" in the subject line of her e-mails requesting time off; it always brought a smile to my face. But enough about anonymous her, let's talk about me.

The occasion? Five years ago yesterday was my official first day in this job. For the record and otherwise, it has been wonderful. I owe Chief Justice Jefferson and the Supreme Court of Texas a huge debt for bringing me into the world of courts. I have an awesome staff, fascinating and meaningful work, and great contacts with others in Texas and around the nation. So thanks to all with whom and for whom I work, I appreciate you!