Chapter 9Judges and Justice in the States

I. Why Study State Courts?A. State judges usually have the final say in most legal disputes (30k

judges, 100m filings half of which are traffic).1. Writ of Habeas Corpus – petition to federal courts asking for a

federal review of their case (rarely granted). 2. 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.).

B. New Judicial Federalism1. 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).

2. Tort Revolution – flood of lawsuits filed asking for monetary compensatory and punitive damages for malpractice or product liability.

-MS Tort Reform Debate.

II. Structure of State CourtsA. 3 levels1. 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.

JPs are elected for short terms (usually 6 yrs) perhaps with no training in law; limited to marriages, notarizing, traffic violations, hearing misdemeanors (small fines). Why are these nicknamed “judgment for the plaintiff”? Because the plaintiff can pick from any JP in the county.

2. 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.

3. Appellate Courts• Work similar to federal 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.B. State Courts and State Politics - how different from federal courts?1. More intrusive over other branches and involved in state political

matters (fewer cases dismissed as “political questions”). Why? State Constitutions longer, detailed, flexible, etc.

2. Not constrained by federalism with respect to local gov’t.3. 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).

4. 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.

opinions more tolerated too.III. How Judges are Chosen (Fig. 9-1). Only RI have life-terms;

37 states have mandatory retirement age set at 70.A. 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.

B. Popular Election (includes MS). Half of all states popularly elect judges. Some (W/MW) have nonpartisan elections (illusion, parties typically endorse).

1. Elections becoming increasingly costly and contested. Candidates running on issues (Idaho winner, anti-evolution).

2. Critics concerned with money interests.3. Minority representation – at-large elections produce few

minorities (70% St Sup Ct = men; 5k of 30k are women). Solution - Majority-minority districts?

C. Merit (Missouri) Plan – favorite of Political Scientists because it is a kind of screening process.

1. 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 retention election (uncontested; sometimes supermajority required to remove). Half of the ousted judges are from IL which requires a 60% majority to retain.

2. 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).

D. Appointive/Elective? Assessment1. Appointive – needed because masses are not competent to assess

quality candidates. Deters quality candidates as a result. Good lawyers may not be good politicians.

2. Elective – accountability is best, keep in touch, reduces governor power.3. 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 (vested interested group).

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). State Supreme Court (70% men)

IV. The Justice SystemA. 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:

1. One day, one trial policies. 2. Smaller than 12 (no lower than 6 = SC).3. Less than unanimity. B. Prosecutor – an American invention. Someone said that a

prosecutor has “more control over life, liberty, and reputation than any other person in America.” Why?

1. May divert the matter to social welfare agency2. Dismiss charges3. Take to grand jury (who nearly always follow prosecutors

recommendation)4. File an information affidavit (same effect as grand jury

indictment). C. Defense Counsel and Public Defenders1. Assigned Counsel System – especially in rural areas, attorneys

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.

2. 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.

D. Victims and Defendants – who? 1. Defendants typically young, disproportionately minority,

male, less educated, unemployed, single, “broken” home.2. Victims also typically young, minority, uneducated. E. 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, truth in sentencing).

F. Probation and Prison – skyrocketing prison pops (over 2 million total; Figure 7-3 = 450 per 100,000). But costly!

1. Costs $60,000 per cell and $20,000 per year to guard and feed each prisoner.

2. 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).

3. 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).