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November 12, 2004

The Blakely costs and court crisis

This law.com article, tellingly titled "Courts on the Edge of Financial Crisis," documents a dire "funding crisis, unprecedented in the last two decades," now being experienced by the federal courts.  In the piece, insightful court scholar Arthur Hellman notes the potential impact of Blakely:

The Supreme Court's June decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), a state sentencing case, has increased the workload because it threw into doubt the constitutionality of the Federal Sentencing Guidelines. Courts and prosecutors have been scrambling to anticipate what the impact on sentencing will be.

"The one consequence of that is many sentencing determinations before the Supreme Court decision that would have been routine and non time-consuming are now requiring huge amounts of time and attention by judges, assistant U.S. attorneys and defense attorneys," said Hellman. "That pushes other cases further down the line.

"Even if the caseload had remained the same, when you have an upset like this, just the sheer amount of human resources the court system has to devote to a large class of cases increases," he explained. "Even with a steady budget that would be difficult."

This disconcerting article confirms a lot of what I heard when I had a chance to  speak last month with federal District Court Clerks and Executives (discussed here and here).  Put simply, the federal courts were overloaded and underfunded before Blakely, and the impact of Blakely (even if it does not ultimately get applied to the federal system) is to make a bad workload situation much worse.

Of course, at least in the criminal law arena, one should not lose sight of what might be called the federalism solution to this workload problem.  If more criminal prosecutions, especially local drug crimes, were simply left to the states, the caseload burdens in the federal courts would be somewhat alleviated (although then the states would bear even more of the brunt of our swelled criminal justice system).

November 12, 2004 at 09:04 AM | Permalink


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"Of course, at least in the criminal law arena, one should not lose sight of what might be called the federalism solution to this workload problem. If more criminal prosecutions, especially local drug crimes, were simply left to the states, the caseload burdens in the federal courts would be somewhat alleviated (although then the states would bear even more of the brunt of our swelled criminal justice system)."

BUT it is the state courts that have created innovate programs like drug courts and have seriously investigated sentencing reform with new venues and have recharacterized many offenders as nonviolent and therefore not in need of custody. How many felon-in-possession defendants or drug couriers are truly a danger to society? Since the states have novel ways of dealing with those offenders (which the federal system cannot or will not implement because of politics/the "racheting up" problem/national scope, etc.) funneling more offenders back to the states might help all around (and would likely not be the strain on the state systems that it is on the federal system).

Posted by: District Clerk Battling Blakely | Nov 12, 2004 2:49:01 PM

Great points, as always, DCBB. Necessity is, of course, the mother of invention, and the states have definitely been more inventive (and more motherly) in the arena of sentencing reform.

Posted by: Doug B. | Nov 13, 2004 11:38:12 PM

But if we shift more criminal law cases back into the state courts under the guise of federalism, A) what federal politicians are going to have the intestinal fortitude (and reelection security) to propose such a change in federal law, B) whatever will Congressional and Senatorial candidates run on if they can't run on being "tough on crime" and "tough on drugs"? I write with some irony, of course, but as much sense as it truly makes to revisit our federal criminal laws (esp. the drug laws), I fear the political ramifications of being "Dukakis-ized" will win out over Congressional concerns about funding the federal court system when push comes to shove. Besides, is that not Grover Norquist and others of his school of thought actually WANT? ("I don't want to kill the federal government, I just want to shrink it to a size where I can drown it in the bathtub.")

Posted by: Allen | Nov 14, 2004 10:44:06 PM

Imagine a county judicial system in which courthouses are open every day, but there is a one year wait for a jury trial and no oral arguments are permitted on appeals. Imagine that you had been doing business with a film producer, software developer and an entertainment attorney who were all given fiduciary powers to manage your assets which at the time were worth over $70 million. Then you discover that they have converted your assets out of your name and control and put them into their own names and control, complete with tortuous interference with prior contracts, fraudelent SEC filings, theft of corporate property of a publicly traded company and sending you into a manicly depressed state of compete overwhelm and mental anquish, causing you severe emotional and permanent psychic damage. The damage is so great that you leave threatening messages on the voicemail of the perpetrators who then use those as evidence to have you charged with five counts of terrorist and criminal threats, and at the same time attempt to have you deported after you have legally lived in the United States for 36 years. In order to make sure that you are going to go away for a long time, the perpetrators file false reports with various federal, county and local agencies painting you as the complete bad insane guy, going as far as telling the department of homeland security and the FBI that you are driving around with a limited nuclear weapon in the back of your vehicle about the size of a breifcase and that you plan on blowing up the federal reserve bank building in Portland Orgeon. After being questioned by the FBI, and homeland security, having your home searched, having your entire family life completely disrupted, and being released, you are then later arrrested again after attempting to recover the stolen property on your own because you cannot afford to hire a lwayer to prosecute, the FBI isn't responding to you because they think, based on the previous reports filed by the perpetrators that you are missing several eggs out of your proverbial basket, and the county in which you have traced the documents have issued arrest wrarrants based on totally false and inaccurate reports. They have false information that you are a terrorist, that you are carrying weapons and are armed and dangerous. You have been living out of you car for five months trying to figure out what to do about the situation after all the above has happened and you are finally arrested. After waiting four months for a jury trial, you are told it might take an additional six months in county jail, and you finally cop a plea of no contest because you have already been beaten up while incarcerated twice and witnessed a riot, and have suffered even further emotional and psychic distress that caused you to go into shock. You are told by the prosecutor that you will be deported but first you must do a four month drug rehab program to deal with your addictions to drugs which you used as a solution to deal with the issue of being robbed blind by former business associates. You never got a jury trial, you never even got a chance to tell the judge your side of the story, and if the six sherrif's who arrested you would have just asked you a few simple questions like the FBI and Homeland Security Agents had done, the whole thing would have been turned around. So after all this you wind up on the streets in the county of your arrest with three years of probabtion, and permanent mental, emotional and psychic scars, destitute still, a ward of the state, on general relief and the food stamp program and have lost all further desire to work due to your total mental incapacity. Welcome to the Los Angeles Criminal Justice System, a microcosm and reflection of what it must be like at the Federal level. As the expert on law, do you truly believe that there is really a workable justice system in the United States? If so, please point me to which door it is hiding behind so I can cross over the ramps out of the emoitonal hell that has consumed the past year of this desperate man's life.

Posted by: Victime of U.S. Criminal Justice | Jun 2, 2005 1:19:40 AM

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