To Serve All People - Lower Barriers

Lower Barriers

An orientation to "customer service" within the judicial system would do much to increase public trust and understanding.

Modern business management has a new pet phrase every few years, but the constant theme is to focus on the needs of customers. In the long run, the business that accomplishes that will also do well by its employees, managers and shareholders.
Much of the public believes that the judicial system does not consider the public to be its customers.
The system dispenses, inefficiently and slowly, certain services and remedies that have evolved by custom and often in the interests of the system's own participants. The public, it often seems from the outside, can "take it or leave it."
Whether the governing principle is called customer service, market orientation or total quality management, the judicial system must operate with the public as its primary client. This takes in a sweeping range of actions, from manners in a clerk's office to comprehensible jury instructions from the bench.
It also means that courts must seriously consider measurements of "customer satisfaction" as well as legal score-keeping and productivity. In service organizations, which is what courts are, both customer satisfaction and, say, rates of reversal on appeal are worthy measures.
Controversial decisions do not have to meet approval from 51 percent of the public. But if 51 percent feel ill-treated as jurors or are bewildered about how to find a simple record, then those problems cannot be simply written off as part of the system.

Crime survivors

Victims of crime should be regarded as a special constituency of the judicial system.
Nothing reflects the system's failings in serving the public more than the widespread dissatisfaction with treatment of victims.
They land in the criminal justice system because of outside circumstances forcibly imposed upon them. Most enter the system reluctantly, out of a civic and personal duty to justice.
Not neatly housed in any department or division, crime survivors have no independent standing within the system. Often they are regarded as merely witnesses in the process, or worse, simply bystanders.
For all the current talk of victims' rights, in truth they have far more duties than rights. Too often they are treated like a patient whipsawed between a doctor and an insurance company.
There are procedural changes that could improve matters, especially in notification about plea bargaining and parole eligibility. A stronger administrative arm at the district court level could set a place for responsibility.
Improvement also depends on a change in attitude, though. Those inside the system must care more than they do now about those outside the system, and they must be held accountable when their actions do not reflect that care. Nowhere is that more important than in the treatment of crime victims.
Anything short of this special attention runs two risks: first, that the growing voice of frustrated victims will continue to undermine the broader public confidence in the judicial system, and second, that the voice will create misdirected legislative reactions that will impinge upon the judicial system without meeting the victims' real needs.

Perception of bias

Judicial personnel, including those in authority, should reflect the diversity of the state's population.
Much progress has been made in recent years, and as long as women and minorities are under-represented within the legal profession, they are not likely to be fully represented in the judicial portion of it.
Still, when only 5 percent of trial judges are minorities, and only 5 percent of General Sessions judges are women, then minorities and women can see clearly that the courts are not led by persons like them.
The judicial system's ideals of equality before the law are sometimes also betrayed by the personal biases of those to whom its administration is entrusted. Race, national origin, religion, gender, age, disability, financial means and geographic location are factors that can impair access to justice.
Some manifestations of this are personal, but some are structural. For instance, the relative lack of diversity within the judiciary undermines both the public's perception of fairness and the ability of the courts to empathize with people from under-represented groups.
The criminal justice system, in particular, is pervasively affected by perceptions of race and class, with disturbing effects on which behaviors are criminalized and how severely individuals are punished.
The commission has not dealt in depth with this issue, knowing that the Supreme Court has established a separate commission to deal specifically with it.
We do not wish to understate the problem, though, and we encourage all efforts to address it.
Specifically, we urge that multicultural diversity be taken into account in personnel selection, be a part of the training for all judicial personnel and play a role in all subsequent performance evaluations. The system should closely monitor its own outcomes for patterns indicating bias.

Easier access

The many obstacles to public access of the judicial system should be reduced.
Individuals with communicative disabilities, limited English-language proficiency or alien cultural background face enormous barriers in working through the judicial system. Even well-educated, socially and culturally competent citizens can be alienated by a legal system with its own arcane language and subculture.
The procedures, the rules and even the words are almost unintelligible to the uninitiated, and they almost seem designed to exclude. For those whose life circumstances are particularly challenging, the barriers are all but absolute.
In the criminal system, where victims and witnesses usually lack the guidance of private counsel, the inherently stressful process is filled with fear of the unknown and the seemingly arbitrary.
For persons with significant physical or mental impairment, the system can be quite literally inaccessible.
Even those without physical limits can face practical obstacles from the system's demand that the public obtain justice in certain locations, during certain hours, under circumstances convenient primarily to those already within the system.
There are ways to mitigate these problems.
We recommend that all forms and written communications to the public by the legal system should be at the sixth-grade level of reading proficiency.
Self-help assistance should be available at numerous public sites throughout the community. Such assistance should include written materials, interactive electronic media as described earlier in our discussion of technology and help from court personnel.
Reasonable accommodation should be made for those with special needs.
Court facilities should be physically accessible. More importantly, they should become, to the extent possible, irrelevant. It should be possible for the public to do much of its business with the legal system from home or other convenient public locations. Again, new technology should be of some help in this regard, if the judicial system is willing to adopt it.
Affordable legal representation is especially critical for those who are unable by impairment to defend their own interests.

Affordable justice

Full litigation is the most expensive form of dispute resolution. Economic barriers can be most effectively reduced by turning to other forms, but changes in the traditional courts are important too.
Attorneys' fees and other expenses place justice beyond the means of most low- and middle-income citizens and many small businesses. Indeed, such costs are a serious deterrent even to the affluent.
In addition to the direct costs, litigation involves substantial additional burdens, from lost wages and child-care expense to the reduced productivity of individuals and organizations.
The discovery process has become the most notoriously expensive segment of dispute resolution, and much of the public has come to believe its duration depends far more on a litigant's resources than on the merits of the case.
Alternative dispute resolution formats should be adapted to the needs of all members of the public.
Publicly supported legal services should be available on a sliding fee scale, reflecting ability to pay. The present system offers free legal service to only a fraction of the poor who are in need, but it offers nothing at all to those who have incomes above formal poverty lines, but who cannot possibly afford to pay an attorney at prevailing rates.
Judicial administrators should be accountable for compliance with laws designed to prevent fees and other costs from posing a barrier to the judicial system, by deferring payment by those unable to advance such fees before litigation. Those laws are now applied inconsistently across the state and are sometimes simply ignored.
Victims must often pay for justice in the form of lost wages and other costs of attending court and assisting the prosecution. They should be treated as "customers," assisted through the judicial process, and when possible compensated through restitution for related expenses.

Bail bond problems

Major reforms should address the injustices of bail bonds.
Justice is literally for sale through the commercial bail bond system, which explicitly conditions access to freedom on a person's financial status. The system's perverse effects are long-standing.
? It invites corruption. The financial leverage of bail bondsmen seeking preferential treatment offers constant lure for sheriff's personnel.
? It is often used to keep persons in jail over minor matters, ones that are actually more civil than criminal. In that sense, our jails have become modern-day debtors' prisons.
Under the current system, some persons take up jail space solely because they cannot make a $250 bail bond, not because they are any sort of risk to society and regardless of the high public cost in building and maintaining the jails.
? It also produces a financial trap. The money spent on a bond might force the defendant to rely on the public defender rather than a private attorney. Or, where local practice prohibits bonded defendants from using the public defender, the system leads them to stay in jail precisely so they can then afford an attorney.
? Sometimes persons remain in jail solely because it requires the "expert" bondsman to lead them through the legal maze to freedom.
? The bail bond system skims the cream off the jail population, like a health insurer who takes only healthy customers who can afford the insurance. This comes at the expense of justice to those of lesser means.
? At its worst, the system is the reverse of that pattern, and even more perverse. Bonds are written for defendants who are bad risks, in part because they might abscond, but more likely because they might commit new offenses while on bail. Bail bondsmen develop ongoing business relationships with career criminals. Those offenders may be dependable clients for the bondsman, but remain a threat to society. The commercial interest of the bondsman then supercedes what should be the judge's responsibility to determine risk.

Bail bond reform

The bond system has a dual purpose: to protect the public and to assure appearance in court. The present commercial system subverts the first purpose and is almost irrelevant to the second.
Efforts to tinker with the system have failed. On balance, the commission believes the judicial system would be better served by its own bonding system. That system is currently almost unused, but it is easy to see how it might be used more fully, especially if some of the commission's structural and support changes were implemented.
The courts would have to make a few additional adjustments to provide a bonding service. The system, for instance, should inform persons about their options for release and notify them of court dates and other obligations. Those are manageable requirements; other states fund them fully through court fees.
If it is not feasible to end the current system entirely, at the very least the following changes should occur.
? The judicial system should screen out the vast number of unfounded warrants before they are ever served. Many of the defendants who provide a large and low-risk pool for bail bonds would then remain in their own homes.
? The judicial system should presume release for any misdemeanor unless good cause is shown to the contrary. There is a fear that this would lead to fewer arrests. That risk could be allayed by better use of citation-and-release procedures that avoid the bail decision altogether.
? The judicial system should make better judgments about the real risk of releasing various defendants. An extensive pre-trial release system would then allow many persons to go free on their own recognizance.
Together, those changes might alter the present bail-bond system enough to create further changes, perhaps including the system's own demise.
For years, the bail bond system has been treated as the judicial system's tawdry embarrassment, to be talked about only within the judicial family. Neither basic justice nor overcrowded jails have forced the issue. It is time for those changes to begin.

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