State Courts and Judges: Understanding the Judicial System

1. Chapter 7 Judges and Justice in the States • Why Study State Courts? • State judges usually have the final say in most legal disputes (30k judges, 100m filings half of which are traffic). • Writ of Habeas Corpus – petition to federal courts asking for a federal review of their case (rarely granted). • Federal Questions – If the losing party in a state case can convince a federal court that the issue is a federal one (federal law, U.S. Constitution, etc.). • New Judicial Federalism • Civil Liberties – states have begun to interpret their constitutions to provide more protection of liberties (right to work, more extensive privacy protection, potentially human personhood amendments). • Tort Revolution – flood of lawsuits filed asking for monetary compensatory and punitive damages for malpractice or product liability. -MS Tort Reform Debate.

2. Appellate Courts • Work similar to court of appeals (in between trial and supreme). • All states have a court of last resort, usually called state supreme court. TX and OK have two – supreme for civil matters and court of criminal appeals. • 5-9 judges; most = 7 (MS=9) • 60,000 decisions, 2% are appealed to US Supreme Court, even fewer reviewed, and still fewer reversed. • Have Judicial Review, but take oath to uphold US Const. • State Courts and State Politics - how different from federal courts? • More intrusive over other branches and involved in state political matters (fewer cases dismissed as “political questions”). Why? State Constitutions longer, detailed, flexible, etc. • Not constrained by federalism with respect to local gov’t. • More willing to grant standing to taxpayers; and issue advisory opinions (unrelated opinion to a case giving the court’s view on a legal issue). • Since they serve shorter terms and are often elected, they feel like representatives of the people and more likely to offer personal views on policy matters.

3. Structure of State Courts • 3 levels • Minor Courts – handle misdemeanors (small violations of state/local law), not felonies (serious crimes, sentenced from 1 year to death). • These decisions can be appealed de novo (tried all over). • Minor courts known as municipal courts; may be traffic, family, small claims, or police courts. • Justice of peace being phased out, but survive in rural areas. Justices are elected for short terms perhaps with no training in law; limited to marriages, notarizing, traffic violations, hearing misdemeanors (small fines). • Trial Courts of General Jurisdiction (Appellate Courts including Courts of Last Resort or Supreme Cts) • Have original jurisdiction, or the authority to hear the case first. Called county courts, circuit courts, superior courts, district courts, and common pleas courts. Most of these decisions are final.

4. opinions more tolerated too. • How Judges are Chosen (Fig. 7-2) • Appointment by the Governor and Election by the Legislature. Mostly in NE (blue). Some states (green) elected by legislature, but usually informally recommended by governor. • Popular Election (includes MS). Half of all states popularly elect judges. Some (W/MW) have nonpartisan elections (illusion, parties typically endorse). • Elections becoming increasingly costly and contested. Candidates running on issues (Idaho winner, anti-evolution). • Critics concerned with money interests. • Minority representation – at-large elections produce few minorities (p. 139). Solution - Majority-minority districts? • Merit (Missouri) Plan – favorite of Political Scientists because it is a kind of screening process. *Women – 5k of 30k

5. Procedure: judicial vacancy, a nominating commission convenes (usually composed of lawyers elected by bar, citizens appointed by governor, and chief justice) and nominates 3 candidates. Governor selects one who serves as judge for a year. Then, state has a retentionelection (uncontested; sometimes supermajority required to remove). Half of the ousted judges are from IL which requires a 60% majority to retain. • Effect: 4,600 retention elections, 60 judges removed, recently these elections have risen in turnout and intensity (FL example; running against groups can be hard when you can’t respond). • Appointive/Elective? Assessment • Appointive – needed because masses are not competent to assess quality candidates. Deters quality candidates as a result. • Elective – accountability is best, keep in touch, reduces governor power. • Assessment of MO Plan • Has not eliminated politics from selection process (interested groups, like plaintiff and defense lawyers, work to have their reps on commission). • Basically has reduced importance of parties and enhanced influence of legal profession. 4. Selection system does not seem to affect quality of judge, but election systems tend to have fewer racial minorities (few majority-minority districts created for judicial districts).

6. The Justice System A. The Jury – in past, professionals were able to get off. Their services were “essential”’ outside court. So, older, poorer, single, served. Now, it is harder. But service costs money and time. So: • One day, one trial policies. • Smaller than 12 (no lower than 6 = SC). • Less than unanimity. • Prosecutor – an American invention. Someone said that a prosecutor has “more control over life, liberty, and reputation than any other person in America.” Why? • May divert the matter to social welfare agency • Dismiss charges • Take to grand jury (who nearly always follow prosecutors recommendation) • File an information affidavit (same effect as grand jury indictment). • Defense Counsel and Public Defenders 1. Assigned Counsel System – especially in rural areas, attorneys

7. may be designated to represent someone unable to pay (often pro bono). Seldom with investigatory funds. Some do this full-time, with incentives to plea guilty for case volume ($). Criticism: Not necessarily experienced in criminal law. • Public Defender System – Full-time job, paid by gov’t, to represent poor clients. Critics argue that they will not work as hard (nonpaying client) and are friends with prosecutor. • Victims and Defendants – who? • Defendants typically young, disproportionately minority, male, less educated, unemployed, single. • Victims also young, minority, uneducated. • Sentencing – evolution of sentencing = throw the book at them (retributive justice); then rehabilitation was in; now back to retribution (rising crime rates, criticism, mandatory minimum sentencing, narrowing judicial discretion). • Probation and Prison – skyrocketing prison pops (over 2 million total; Figure 7-3 = 450 per 100,000). But costly!

8. Costs $60,000 per cell and $20,000 per year to guard and feed each prisoner. • 1 in 3 prisoners let out return in 3 years. It would, of course, save money and reduce crime if we could release all but recidivists. But how do you know who they are? Some argue for a minimum 5 years for second offenders to cut crime and costs (identifies repeaters). • Some states deal with costs by: privatization (opposed by Correctional peace officers) or rethinking mandatory sentencing and using other programs (e.g., home confinement devices).

9. Chapter 9 Making State and Local Policy • Public Education – historically not considered primarily a government duty. Originally opposed on grounds of mind-control, tax increases, fusion of ed and politics, etc. Now, #1 priority of most states (fig 9-1). • Funding • Federal funding falling, but federal ed mandates rising (“No Child Left Behind”). Fed share=6%. • State funding has now surpassed local funding. Partly due to court rulings requiring funding equity between districts. • Funding=$10,000 per pupil in NY; $4,900 in Utah; MS= $5,900 (45th but 19th in budget proportion); Mean=$7400. • Administration: basic unit is the local school district. • District school board and superintendent • State also typically has school board and superintendent (1/3 popularly elect this person).

10. Ed Policy Implementation: established at state level (e.g., standards) but enforced locally. Some states closely monitor what is and is not taught locally (S and SW often determine textbooks). • Educational Issues • Curriculum: Big debates on course content over the years (evolution, textbooks that stress minority perspectives). Public educators typically favor total exclusion of outside groups in this area. • Integration: Since Brown v. Board of Education (1954) and Green v. County School Board (1968), states were charged with integrating. Busing was the only means. • Vouchers (School Choice): some reformers argue that public education needs competition to improve (lack of an incentive structure to change: schools-teachers are producers and students-parents are consumers). -permits parents to shop for schools like they do other goods and services for their children. Idea: schools will compete.

11. -popular among poor families and conservative Republicans (Moe quote p. 181; and fig 9-2). -not popular with teachers unions (job security and potential funding drain in public schools where they safely work). Others oppose on “establishment clause” grounds; still others predict return to segregation. And others predict a “brain drain” making matters worse for remaining students. -2002 Court decision for Cleveland’s voucher plan. Ruled that vouchers were constitutional despite the high % of students transferring to religious schools. • Charter Schools: some states grant individuals or groups $ to start and run schools how they see fit as long as they meet certain standards (answer to public school boards). Has competition element, greater flexibility in hiring and firing teachers (no collective bargaining, ed degree requirements). • National and now Statewide Testing -Goal: accountability, measurability, ability to compare states down to students, tracks progress/decline

12. -Concerns: teachers may “teach to the test”; minority students/poor students may be disadvantaged some way in these tests based on performance. • Higher Ed • Administration: governed by boards appointed by governors in some (MS) and elected by voters in others. These boards typically more independent and very powerful. Duties: teaching loads, internal workings, course/scholarly emphases, hiring, tenure, promotion, funding priorities. B. Funding: 15 million college students; 80% publicly supported. • Tuition: gone up 2-3 times inflation rate. Professors’ salaries not gone up accordingly (Table 9-1). Solution: financial aid, typically supplied or underwritten by government. Other states have developed programs for tuition assistance (HOPE in GA). • Because financial aid behaves like a voucher (get it regardless of where you go), we do not have a college system for the rich and one for poor.

13. Social Services – What role should the state play in social service provision? What should be their relative importance? • History 1. It was not considered the responsibility of gov’t to provide these services (private charity/churches). Fit well with “Classical Liberalism” 2. FDR  New Deal; LBJ  Great Society (War on Poverty) • Welfare • 2 million households receiving public aid 1950; 6 million in 90s. Why growth? -U.S. finally accepted Social Justice theory/obligations -Welfare expansion enticed more participation and produced a cycle of dependence • Administrative burden has recently fallen mostly to states. C. Reform – Clinton’s program changed the name from AFDC to TANF (Temporary Assistance for Needy Families).

14. For states to get block grants from Federal government to provide aid: -Proposal (filed with U.S. Sec of Health and Human Services every 2 years) must explain how recipients will work for benefits within 2 months. -State goals to prevent illegitimacy -describe how state will treat new families -explain how the state intends to provide for noncitizens. • States are encouraged to experiment with plans. Tommy Thompson (ex-gov of Wisconsin, now Sec of HHS) removed the aid incentive for dependent families to remain fatherless (larger grants for the married). Plans: -Responsibility Contracts: contracts between recipients and service agency perhaps with goals and timetables for independence. -Workfare: agreement to work in exchange for benefits (provides basic job skills).

15. -Enterprise zones: tax incentives to companies that provide job training to the poor/unemployed. • Success? -Certainly removed people from welfare roles (Fig 9-2). -But has not yet produced significant levels of independence (difference in having a job and livable income). • Healthcare • Prevention and disease control are still the major public health activities today. • Examples of how (p. 169) • Medicaid: In need across the country (106% cost increase since 2000 in MS). -Expanded during good financial times, but most in trouble when most in need. -40 million on it. 13% of state budgets on average. National Health reform likely to include “unfunded mandates” regarding state financing of Medicaid (mandatory expansion of eligibility with limited federal funds to pay for it).