Court funding cuts threaten due process

Funding for the courts has dropped at all levels as budget constraints force harder and harder choices. However, cuts to judiciary funding raise troubling questions in terms of limiting the ability of American citizens to exercise their civil and due process rights. Now as sequestration looms at the start of next year, American citizens may find it harder than ever before to have their day in court.

In California, civil litigants are now forced to pay for their own court reporters, fees for which run approximately $700 per day according to one press account. California’s justice system has seen budget cuts of approximately $1 billion since 2008. Requiring litigants to pay for their own court staff, not just lawyers, can have a limiting effect on the ability of an individual to access legal redress and may also raise questions about the overall independence of the legal process. A proposal is also moving forward in the state that would suspend court services completely in the South San Francisco and San Mateo branches.

New Hampshire, which recently unveiled a plan to modernize its court system, has slowed this effort due to funding cuts. That project would’ve made the state court system paperless, putting more court information online. The original cost for this plan was $5 million – a paltry sum for almost any modernization project, but that has now doubled, forcing the court to put only small claims cases into the e-court system.

Last month, the Judicial Conference of the United States, a group of 27 judges led by Chief Justice John Roberts that sets policy for the federal courts, announced that it would close six courtrooms in the south in an effort to cut costs. The courtrooms to be closed are in Gadsen, Ala.; Pikeville, Ky.; Meridian, Miss.; Wilkesboro, N.C.; Beaufort, S.C.; and Amarillo, Texas. None of these courtrooms had a judge based there, instead they provided court services to smaller towns and judges would travel in from larger systems nearby as needed. The plan will save the court system $1 million in rent, but will force citizens in small towns and rural areas in the south, to travel in order to get justice on claims. Lower levels of income and mobility already define many of these areas, and the closures may limit due process.

While it may seem on the surface that cutting costs is required during tight fiscal conditions, the follow-on effects can be damaging. As CivSource has previously reported, one of the issues surrounding the controversial voter ID law in Pennsylvania, is the closure of other state offices in smaller towns – DMV’s specifically. The closures now often require individuals to drive for hours in order to meet state identification requirements – regardless of age, mobility, or physical ability. Closing courtrooms is likely to have similar effects, limiting the rights of citizens.

In many cases, courts have taken up efficiency efforts themselves out of a need for survival. A paper recently released by the National Center for State Courts, highlights efforts to streamline business processes within state courts. However, authors note that the upfront costs of such efforts can stall out projects as happened in New Hampshire. “The most promising long-term budget balancing measures likely require process reengineering (undertaking a thorough analysis of the current workflow). Process reengineering usually entails some initial expenditure (such as consulting studies or technology investments) and an extended time period for full implementation. More importantly, process reengineering must be tailored to the local court jurisdiction, bearing in mind the interdependencies of other local justice agencies,” authors write.

A new study released yesterday by MITRE Corporation, a not-for-profit organization that provides technology and research services for the government, shows that courts are now finding ways to use business intelligence technology to cut costs and make operations more efficient. Using two years of civil court data, MITRE researchers created a docket-scheduling model that makes use of algorithms leveraging these data characteristics: case type, case time estimates, and probability of pretrial resolution. A second version of the model used court information to simulate dockets several months into the future and created more robust docket scheduling algorithms. This technology is now being used to meet increased caseload demand and work within historically severe budget constraints.

MITRE’s efforts may provide a more phased in approach until budget questions can be addressed, the study authors note that, “court data can be modeled, data-driven modeling can maximize court efficiency, and enhancing efficiency does not require sacrificing judicial processes. Models like these can be introduced gradually, and their implementation does not require a massive system overhaul.”

All of this has taken place even before the dire budget cuts outlined in federal sequestration are in force. Sequestration is the term used to describe the significant across-the-board budget cuts that will take place if Congress fails to meet a budget compromise before the end of the year. Sequestration was agreed to as part of the deal to raise the debt ceiling and will kick in on January 1, 2013, unless another measure is put in place.

The “biggest threat to our fiscal health in the short term is budget sequestration,” Judge Julia Gibbons, Chair of the Judicial Conference Budget Committee, said in a statement to the Judicial Conference. “We estimate sequestration would cut the Judiciary’s budget by more than $500 million below the 2012 funding level. Quite simply, a reduction of this magnitude would cripple the operations of the federal Judiciary and our constitutional mission would be compromised due to these sudden, arbitrary budget cuts.”

These budget cuts, coupled with pay-for requirements like those in California put the judiciary on pace to become available only to those with significant resources. In a symposium on the court-funding crisis held by the American Bar Association last year, Erwin Chemerinsky, dean at the University of California at Irvine School of Law noted that the increased use of private justice mechanisms like mediation is already allowing corporations and wealthy individuals to avoid the court system all together. Mediation is often a redress channel completely out of reach to citizens unable to avoid the high legal fees that come with it.

In an article on ABA Journal recounting his remarks, he said the biggest threat to the judiciary is the “lack of support for the political will to fund what we need in government. We have to take on the larger social issue of how we convince people the government isn’t an evil, that the government provides for them.”

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