“Rarely has any public institution been held in such open

contempt by those who work for it and those who pass

through it. Judges call it a sham and a fraud. Lawyers say
that justice is unpredictable at best, and that the tawdry
surroundings and atmosphere of deal-making deprive the
court of even a semblance of justice.”
David Anderson

“The adversary process often achieves truth only as a

convenience, a by-product, or an accidental approximation.”

Former U.S. District Court Judge Marvin E. Frankel

“My work is filled with deceit, incompetence, aggression,
and violence…Many of my clients are monsters who have
done monstrous things. Although occasionally not guilty of
the crime charged, nearly all my clients have been guilty of
something…I see myself as part of a process which is
arbitrary, racist, and often brutal. Many defendants are
convicted for acts made inevitable by poverty…sometimes
late at night I think back several hundred criminals ago
when I entered law school filled with high expectations and
principles, and I wonder about what I have done and
whether this was how one should be spending his time.”

Seymour Wishman
17,000 courts
35,000 judges
250,000 total personnel
155 million cases/year (roughly a 1:2 ratio)
$20 billion annual budget nationwide (some
cross-over costs though)
Basic Court Structure
- Minor Trial Courts
- Major Trial Courts
- Appellate Courts
- Supreme Courts
- Misc. Courts

Hierarchical
Judicial review (precedent/stare decisis)
Overlaid system (Federal and states)
Hierarchical Structure
Supreme Court

Appellate Court

District Court (Major Trial Court)

County Court (Minor Trial Court)

Minor Trial Courts
Usually called County Courts. Roughly 90% of the criminal
case workload is handled by the minor trial courts. Typical
original jurisdiction includes:
Initial appearances
Preliminary hearings
Misdemeanor trials
Traffic and parking cases
Civil cases involving less than $52,000 (Nebraska)
Often serve as the local juvenile court

58 County Court Judges serving 12 judicial districts in

Nebraska
Major Trial Courts
Usually called District Courts. Typical jurisdiction
includes:
Arraignments
Felony trials
Civil cases involving more than $52,000 (Nebraska)
Appeals from the minor courts

58 District Court Judges serving 12 judicial districts in

Nebraska

Court of fact (substantive court) vs. court of law

(procedural court) principle
Appellate Courts
Handles appeals from the lower courts
No jury
Generally sit “in division”
Adjudicate the law

Six Appellate Court Judges in Nebraska

Supreme Courts
Handles appeals from the lower courts
No jury
Generally sit “en banc”
Adjudicate the law

Seven Supreme Court Justices in Nebraska

Misc. Courts
Juvenile courts
Small claims courts
Courts of industrial relations
Tax courts
Customs courts
Copyright and patent courts
Bankruptcy courts
Military courts
Workers compensation courts
Regulatory agencies often have judicial bodies
Administrative Support
Clerk of the Courts
Collects fines
Files the paperwork
Statistical reporting
Maintains case histories
Monitor and schedule cases
Document preparation
Case indexing
Issues summonses
Notifies witnesses, attorneys, etc. of required court
appearances
Administrative Support
Administrative Office of the Courts
Hold training programs for court personnel
Court system personnel/HR management
Budget preparation
Develop and revise legal forms
Records management
Statistical reporting
Federal Court System:
Minor Trial Court
U.S. Magistrate’s Court:
- Roughly 560 U.S. Magistrates nationwide
- Serve 8 years terms
- Appointed by Federal District Judges
- Handles 1 million + cases a year nationwide
Federal Court System:
Major Trial Court
U.S. District Court:
- Roughly 1,200 U.S. District Court Judges
- * 677 Full-time District Court Judges
- * roughly 500 Senior Status District Court Judges
- Serve for life
- Appointed by the President
- 94 judicial districts
- Roughly 375,000 cases filed/year (80% civil – 20%
criminal)
Federal Court System:
U.S. District Court Jurisdiction
Federal crimes (around 200/national jurisdiction)
Civil cases (patent rights, copyright, anti-trust)
Bankruptcy cases (775,000/year; 325 judges)
U.S. a party in a suit
Appeals from lower courts
Civil rights violations (Title 7)
Diversive Jurisdiction (two or more parties from two
or more states involving a dispute of $75,000 or more)
Federal Court System:
Appellate Court
U.S. Courts of Appeal:
- 179 U.S. Appellate Court Judges
- Serve for life
- Appointed by the President
- Usually sit “in division”
- 13 U.S. Appellate Court circuits or districts
- Nebraska is in the 8th circuit (based in St. Louis)
- Roughly 50,000 – 55,000 cases filed/year nationwide
- Court of law (vs. court of fact)
- De-facto court of last resort
Federal Court System:
Supreme Court
U.S. Supreme Court:
- 9 Justices (as few as 5; as many as 10 historically)
- Justice John Roberts is the current Chief Justice (17th)
- Serve for life
- Appointed by the President
- Usually sits “en banc”
- Roughly 10,000 certiorari requests received annually
* Court grants “cert” to roughly 75-80 cases/year
* Full written decisions in roughly 50-60 cases/year
Supreme Court Jurisdiction
Original jurisdiction per Article III, Section 2:
Foreign Diplomats
State vs. State
State vs. U.S./U.S. vs. State
Foreign country vs. State/State vs. Foreign country
Foreign country vs. U.S./U.S. vs. Foreign country (added
later)

This Constitutional original jurisdiction has evolved be

original, non-exclusive, non-concurrent jurisdiction.
Now exclusively a court of law.
Chief Justice’s Powers
Presides in open court and in conferences
Speaks first, speaks last
Sets the agenda
Votes last
Assigns the opinion writing duties if votes with the
majority
Circulates a list of “cert denied” suggestions without
conference discussion. Takes 4 votes to remove the
case from the list and be heard.
Chief Justice’s Powers…continued
Determines the order in which cases are heard
Determines the split when sit in division
Determines which cases will be heard by which group
when sitting in division
Appointed for life (real power in government is
longevity in office, ala a King)
Serves as the judge in Presidential impeachment trials
Paid more than the other Justices!
Federal Court System:
Judicial Officer Salaries
Chief Justice - $277,700
Associate Supreme Court Justices - $265,600
Appellate Court Judges - $229,500
District Court Judges - $216,400
U.S. Magistrates - $166,134 (mean)

These are excellent salaries, but they could make far

more as a law school Dean or as a television judge
(ala Judge Judy), but choose to be public servants.
Federal Court System:
Miscellaneous Courts
Tax Courts
Customs Courts
Patent Courts
Court of Customs and Patent Appeals
Court of Claims
Court of Military Appeals
Bankruptcy Courts
International Courts
International Court of Justice (World Court)
International Criminal Court (War Crimes Tribunal)
Permanent Court of Arbitration
International Courts
International Court of Justice (“World Court”)
- Established in 1946
- Meets in The Hague
- Financed by the United Nations
- 15 judges elected for 9 year terms by the U.N.
General Assembly
- Deals with 22 international crimes
- Budget around $90 million/year
22 International Crimes in the Jurisdiction of the
International Court of Justice
1. aggression (crime against peace)
2. war crimes
3. unlawful use of weapons/unlawful emplacement of weapon
4. crimes against humanity
5. genocide
6. racial discrimination and apartheid
7. slavery and related crimes
8. torture
9. unlawful medical experimentation
10. piracy
11. aircraft hijacking
12. threat and use of force against internationally protected persons
13. taking of civilian hostages
14. drug offenses
15. international traffic in obscene publications
16. destruction and/or theft of national treasures
17. environmental protection
18. theft of nuclear materials
19. unlawful use of the mails
20. interference with submarine cables
21. falsification and counterfeiting
22. bribery of foreign public officials
International Courts…continued
Permanent Court of Arbitration
- Established in 1899
- Meets in The Hague
- Free standing body (not affiliated with the UN)
- Inspired by American diversive jurisdiction model
- Provides services for the resolution of disputes
between different countries, intergovernmental
organizations, and private parties (treaty violations,
boundary disputes, human rights, international
investment, international trade)
 International Courts…continued
International Criminal Court (“War Crimes Tribunal”)
- Established in 1998
- Based in The Hague
- Free standing body (not affiliated with the UN)
- 123 members nations
- 18 judges elected for 9 year terms by the nations who are Court
members
- Deals with:
* war against peace/war of aggression
* genocide
* crimes against humanity
* war crimes
- Established in the aftermath of the genocides in Yugoslavia and Rwanda
and the temporary “War Crimes Tribunals” that were established.
Primary Jurisdiction of the
International Criminal Court
War crimes - Acts of violence against civilian populations or prisoners of war
by military personnel in violation of the laws and customs of war, not justified by
military necessity; Acts involving weapons or military methods of unusual
cruelty or devastation. Violence is the nature of warfare, though it is generally
recognized that violence should be limited to military personnel and military
targets.

Crime Against Peace/Crimes of Aggression - Acts based on the distinction

between offensive and defensive warfare. Offensive wars are illegal, but wars
in defense of one’s country and sovereignty are considered legal.

Crime Against Humanity - Acts that violate concepts of natural law and natural
rights of human beings as human beings.

Genocide - The deliberate extermination of one class, race, or religious group by

another.
International Courts:
Summary
International Court of Justice (“World Court”)
Permanent Court of Arbitration
International Criminal Court (“War Crimes Tribunal”)

All are based in The Hague

The World Court is run under the auspices of the United
Nations, but the other two are free-standing entities.
European Court of Human Rights
Selection of Judges – State Level
Gubernatorial appointment
Legislative election
Partisan election
Non-Partisan election
Missouri Plan
* Bi-lateral commission identifies a small pool of
candidates
* Gubernatorial appointment
* Periodic unilateral elections
Selection of Judges - Federal Level
Serve for life
President appoints, Senate confirms
Senatorial Courtesy Rule
Supreme Court justice selection criteria:
- Political reward
- Desire to maintain good relations with interest groups
- Ideology (not a big factor)
- Ability never really a factor (can hire top quality clerks)
Removing Federal Judges from Office
Direct
- Die
- Retire
- Impeached

Indirect
- Informal pressure to resign
- Prosecuted/convicted (serious misdemeanor or felony)
Removing State Judges from Office
Direct
- Die
- Retire
- Impeached
- Judicial Misconduct Board
- Elect a new one at the next election/vote no if in a
Missouri Plan state
- Initiative/Recall/Referendum

Indirect
- Informal pressure to resign
- Prosecuted/convicted (serious misdemeanor or felony)
- Bar Association action
Defense Counsel
Public Defenders
Court Appointed
Private Attorney
Prosecuting Attorneys
State and Local Level
- City Attorney
- County Attorney
- District Attorney
- State Attorney General

Federal Level
- District Attorney
- Attorney General
- Solicitor General
Sentencing Disparity Reforms
Move to a determinate sentencing model
Create sentencing panels (ala sporting events)
Sentencing seminars and conferences
Share sentencing information
Appellate review of sentences
Case Backlogs and Delays
Delay in getting to trial
Long trials

Problems for prosecutors

- longer the delay, less likely a conviction
- testilying issues
Problems for the defense
- uncertainy, socio-economic disruption, loss of freedom
- testilying issues
Case Backlog and Delay Reforms
Greater use of associate judges
Expand the use of pretrial hearings and
conferences
One day trials
Set the precise court date at the
arraignment/initial appearance
Individualized docket
Case Backlog and Delay Reforms…continued
No plea bargaining within 24 hours of trial
Reduce the number of continuances
allowed (virtually none within 24 hours of
trial)
Extend court hours
Trial festivals
Borrow judges from rural areas
Case Backlog and Delay Reforms…continued
Rent a judge/Special Masters (civil options)
Increase the number of waiverable offenses
(and utilize the day fine concept)
Adopt the “English Rule”
Greater use of community courts
Community Courts/Neighborhood Justice
Centers
Sent to the Community Court by:
a. Police in lieu of arrest
b. Prosecutors in lieu of a complaint being
authorized
c. Judges in lieu of trial
d. Go voluntarily
Community Courts/Neighborhood Justice
Centers…continued
* Suspect and victim appear before a board of citizens drawn from the local
neighborhood who listen to the case.
* Typically both the suspect and victim are asked to appear as there is
almost
always some mutual culpability and thus some mutual compensation
that will need to be forthcoming.
* Citizen board members are not paid.
* No legal representation is allowed.
* The Community Court proceeds in an informal fashion.
* The Community Courts utilizes either the:
1. Arbitration Model – citizen judges hear both sides and render
a
decision
2. Mediation Model – citizen judges actively interact with the
dissenting parties and help work out a
Community Courts/Neighborhood Justice
Centers…continued
The Community Court reaches a mutually agreeable, non-
legally binding resolution. That decisions nearly always
required both sides in the dispute to engage in some form of
compensation/restitution (reflects the mutual culpability
principle).

If no agreeable conclusion is reached, or, if one party fails to

fulfill the community court assignment, the case can go forward
into the regular judicial system, but this rarely happens.
Upward of 90% of the cases are mutually resolved at the
Community Court hearing, and 90% of those resolved cases
result in both parties completing their Community Court
assignments, yielding an aggregate 80% success rate.
Community Courts/Neighborhood Justice
Centers…continued
If the matter is successfully resolved/the
Community
Court resolution is adhered to by all parties
involved
(which occurs 80% of the time), the justice officials
who referred the matter to the Community Courts
drops all charges.
Community Courts/Neighborhood Justice
Centers…continued
The successful resolution rate for community courts
(80%) is far higher than the successful resolution
rate of regular courts due to two primary factors:
1. Creation principle (people support what they create)
2. Mutual culpability/compensation principle
Advantages of Community Courts
1. Convenience:
a. time
b. place
2. Speed in which the disputes are addressed
3. Frees up judicial system personnel
4. Reduces court backlog
5. Jail overcrowding is eased
6. Community safety valve
7. Disputes are resolved
8. Promotes communal peace and cohesiveness
Problems with Community Courts
The American due process model adheres to the
principle of procedural consistency and uniformity,
and utilizes objective standards and substantive law
which yields, in aggregate and in theory, a high
measure of social justice, equity and fairness. The
Community Court, in contrast, adheres to the
informal, fragmented, de-centralized model which
yields high level of. We moved away from that
model 200 plus year ago. Why do we want to
return
to it now?
 Problems with Community Courts…
continued
Substantive and procedural legal concerns:
1. The legal proceedings utilized by the Community Courts are
not consistent, but rather vary from court to court, from
neighborhood to neighborhood based on local legal and
socio-politico-economic cultures, and with the attitudes and
perspectives of the individual community court board member.

2. There are no consistent set of rights that victims nor

offender have in the Community Court proceedings.

3. Substantive outcomes vary tremendously from court to court.

The Community Courts do resolve cases faster than do the
regular courts, but at a cost of sentencing/outcome variation,
even disparity.
Problems with Community Courts…continued
4. Who can go to the Community Court? There are no objective,
substantive legal standards.

5. What appellate options are there for those who are denied
access to this dispute resolution option and are being forced into
the regular judicial system?

6. Can statements made in the Community court be used in a

regular court trial?

This kind of informality opens the door to all kinds of potential for
abuse – bribery, favoritism, racial and Ethnic discrimination. We
tried this once, and it did not work.
Problems with Community Courts…continued

The philosophic assumption behind the use of

Community Courts is that processing people
through the standard judicial system, is a bad
thing. Generally that is true, but it is not
always
the case. There are times when regular court
intervention is useful.
Concluding Comments

The court system is not capable of solving any nations’

crime problems. While some proposed reforms can
have a positive impact, they should be viewed as
nothing more than new ways of holding our fingers in
the dike…just buying time. Fundamental changes any
nations’ crime and delinquency problems, require
fundamental changes in that society’s socio-economic
foundations and in its core institutions.