CHAPTER TWELVE

1. CHAPTER TWELVE ADDRESSING THE PROBLEMS AND CRAFTING SOLUTIONS

2. Introduction • Lingering and historical issues • Unique time period issues • Non-exhaustive list

3. Resource Issues • Resources limit justice administration • 3 primary needs • Sufficient number of trained and qualified judges • Adequate support staff • Acceptable physical plants (offices and courtrooms) • 23% of criminal justice budget for judicial and legal services • Compare with police and corrections budgets • 21% of justice system personnel in judicial/legal services • Raises issues about coequality of government branches

4. Judicial Independence • Priority of the American Judicature Society • Creation of the Center for Judicial Independence • Issues associated with judicial independence • Budgets • Courts do not control their own budgets • Legislature determines the budget • Legislature determines the number of judgeships authorized • Court Jurisdictions • Courts do not have complete jurisdictional authority • Can be expanded or contracted by the legislature • Elections • State judicial changes due to unpopular decisions • Aware of public sentiment • Obligation to campaign contributors • Not applicable to federal judges

5. Management Concerns • Increase in court management positions • Concern about increasing bureaucracy • All state and federal courts have administrative arm • Administrative office of courts • Professionally trained management personnel • Appointed by judges • Functions • Budgeting • Personnel management • Jury management • Case scheduling

6. Pro Se Litigation and Court Access • Individuals act as their own attorney in a legal matter • Focus of the American Judicature Society • May upset the goals of courtroom work groups • Group cohesion • Disposition of cases • Reducing uncertainty

7. Alternative Dispute Resolution • Expansion began in the 1970s • Alternative to lengthy and expensive adjudication • Is institutionalized and mandatory in many courts • Reasons for utilizing ADR • Quicker disposition of routine cases • Lower expenses to the parties involved • Reduction in the need for outside parties • Less congestion and expense for the court system • Types of ADR • Negotiation • Mediation • Arbitration • Hybrid ADR

8. Negotiation • Both parties want to settle the dispute • Parties engage in discussion to try to resolve differences • No third party involvement • Often results in a compromise where each party gains something • Less likely to be successful if viewed as a zero-sum game

9. Mediation • Utilizes a third party to intervene between the parties • Mediator’s role is to help the parties reach a resolution that is acceptable to both sides • Non-adversarial process that relies on cooperation • Mediators may or may not have formal training • Mediator meets separately with each side, then brings them together to reach a solution • Commonly used in divorce disputes • Dependent upon compromise

10. Arbitration • More formal method of ADR • May be governed by state law • Arbitrator makes a final decision to settle the dispute • Parties agree beforehand that the arbitrator’s decision is final • Common arbitration matters • Labor and management disputes • Contract negotiations • Credit disputes

11. Hybrid ADR • Rent-a-Judge Programs • Disputing parties hire an attorney or retired judge • Dispute is resolved through a bench trial • Concerns about secrecy and cost • Med-Arb • Combination of mediation and arbitration • Dispute is first taken to a mediator • If an agreement cannot be reached, the case is taken to arbitration • Minitrials • Similar to rent-a-judge • Disputes are distilled to basic elements • Parties have limited motions and time to argue the case • Judge advises parties about a likely outcome if the case proceeds

12. Women as Victims • Double victimization in sexual assault cases • Solutions • Female officers used for sexual assault investigations • Officer sensitivity training • Victims’ advocates in prosecutors’ offices • Enactment of rape shield laws to prevent questions or comments about the victim’s prior sexual history

13. Women as Offenders • Women are convicted of far fewer crimes than men • Possible explanations • Women are less criminally inclined than men • Justice system is more forgiving toward women (chivalry hypothesis) • Justice system may also be more punitive toward women (paternalism perspective) • Unequal adjudication • More sympathy from judges and juries • This has lessened through the use of sentencing guidelines

14. Women as Judges and Attorneys • Historical underrepresentation of women in law and the judiciary • Substantial increase in female law students, attorneys, and judges • Historical exclusion from jury service has been eliminated

15. Minorities as Defendants • Minorities comprise a disproportionate percentage of those arrested and prosecuted • Possible explanations • Minorities may commit more crimes • Criminal justice policies may disproportionately affect minorities • Minorities are overrepresented in the prison population

16. Minorities as Judges and Attorneys • Underrepresentation of minorities in law practice and the judiciary • Numbers are increasing at a very slow rate

17. The Use of Scientific Evidence • Used to identify and apprehend criminal suspects • Originated in France with the Bertillon method • Use of science and technology has increased substantially • Primary method is DNA testing • First employed in a murder and rape case in England • Has received tremendous publicity • Illustrates court procedures for establishing scientific validity and reliability • Accepted as a reliable indicator of criminal involvement

18. Wrongful Convictions • Focus from DNA testing and well-publicized cases • Significant concerns • The guilty party is still in the community • Due process • Reasons for wrongful convictions • Eyewitness identification • False confessions • Jailhouse snitch testimony • Misleading forensic science • Prosecutorial misconduct • Ineffective assistance of counsel

19. Adjudicating Non-Traditional Issues: The Case of Terrorism • Prosecution of enemy combatants has presented new issues • The Supreme Court has ruled that it has jurisdiction to hear the cases of enemy combatants • Military tribunals violate the Uniform Code of Military Justice and the Geneva Convention