Module 7 (Chapter 9) Chapter 9: The Judiciary This chapter covers the following:
The Structure of State Court Systems
How Judges Are Selected
New Judicial Federalism
Administrative and Organizational Improvements
Crime and Criminal Justice
LEARNING OBJECTIVES After reading this chapter, students should be able to understand:
1. How the state court systems are divided into three areas⎯civil, criminal, and administrative.
2. The structure of state court systems.
3. The nature of the structural reform of state courts in the 1960s and 1970s that led to unified court systems in many states.
4. The methods by which judges are selected and the means for their removal.
5. The nature of judicial decisionmaking and how civil and criminal cases are decided outside the
6. The new wave of judicial activism within the state courts.
7. The new directions and trends in state court reform.
8. The linkage between the judicial branch and criminal justice.
The work of state court systems involves three areas: civil, criminal, and administrative. As the court system developed it added new structures to existing ones, and the results were complex and confusing. The court reform movement of the 1960s and 1970s sought to reorganize state courts into more rational, efficient, and simplified structures. The reform effort has resulted in a unified court system that frees judges of many administrative duties that had traditionally burdened them and has done away with overlapping jurisdictions.
Today, limited jurisdiction courts, trial courts, and appellate courts make up the two levels of most state court systems. Courts in the lowest tier have original jurisdiction over specialized cases, such as juveniles, traffic, and small claims. Small claims courts are increasingly popular as a simple and inexpensive way of solving minor civil disputes. Major trial courts exercise general authority over civil and criminal cases, serve as an appeals court for cases from the lowest tier courts, and often are organized along county or district lines. Appellate courts review cases on appeal from the trial courts.
The state supreme court, or court of last resort, in all states and intermediate appellate courts in most states provide for decisions via a panel of judges. Selection of judges, a matter subject to great controversy, is carried out through five different selection systems in the states: legislative election, partisan popular election, nonpartisan popular election, merit plan selection, and gubernatorial appointment.
Dissatisfaction with the other methods and endorsement by the American Bar Association have popularized merit plan selection, particularly in the form of the Missouri Plan. But debate continues over which system is best. Ultimately all selection systems depend on politics; and some states have turned to public financing of judicial elections, where used, in an
effort to reduce their political nature.
The processes of impeachment, legislative address, or popular recall can be used to remove judges. But all three of these traditional methods are slow, cumbersome, and uncertain. More practical means have been adopted in recent years, such as mandatory retirement at a given age and the creation of courts of the judiciary and judicial discipline and removal commissions to deal with judicial behavioral problems. Hearings may result in warnings, recommendation of early retirement, or dismissal.
Misconduct among state court judges is uncommon but occurs in all states at one time or another, and judicial ethics often appear to be lacking. The legal formalities of the courtroom mask the fact that judicial decisions are often discretionary and subjective. Most civil and criminal cases (about 90 percent) are resolved outside the courtroom in civil suit pretrial conferences and in criminal-case plea-bargaining.
Cases that go to a trial court may be conducted in a trial by jury or by a bench trial where a single judge decides the outcome. In some states a defendant has a choice; in others, state legal procedures prescribe the trial format. For murder cases a jury is always mandatory. In the appellate courts no plaintiffs, defendants, or witnesses are present. The appeal consists of a review of court records and arguments directed by the attorneys. A panel of at least three judges makes these decisions.
Judicial decision making in the various courts of the state is influenced by factors associated with the state’s legal system—institutional arrangement or court organization, locally acceptable legal precedent and procedure, caseload pressures, and the ease with which interested parties gain access to the legal process.
But judges do not think and act alike. The judge’s individuality influences decisions in the
courtroom, and studies of state court justices have found decisions are related to party identification, political ideology, prior careers, religion, ethnicity, age, and sex.
Judicial activism is an imprecise term that has been associated with both liberal and conservative judges whose decisions have generated changes in public policy. State courts have become more activist by expanding into new policy areas, often based on U.S. Supreme Court rulings and the states’ own constitutions rather than on the U.S. Constitution.
The state supreme courts, in this era of “new judicial federalism,” have issued hundreds of opinions since the 1970s that have taken minimum standards established by the U.S. Supreme Court and expanded them within their states. But not all states’ courts are inclined to play such an active role, and many remain caught in the doldrums. Moreover, there is danger that the new wave of court activism will carry the courts too far in policymaking.
The latest round of modernization of court systems has involved centralized court budgeting and managing court caseloads. About half of the states have assumed financial responsibility for operation of state and local courts. Such reform enhances financial management, helps maintain independence from the executive and legislative branches, and eliminates disparities between judicial districts. In dealing with heavy caseloads that exceed 100 million cases per year, creation of new courts or adding new judges only compounds the problem.
Promising new approaches include creation of alternatives to formal litigation, new court rules against violating standards that require cases be heard within a specified time, and application of new technology to improve the quality and quantity of court operations. Greater efforts are being made to attract honest and productive judges by ensuring that they are adequately compensated, since historically their salaries have lagged well behind the amount earned by successful lawyers in private practice.
The judiciary is the critical institutional link to the policy of crime in the states. States have made many policy innovations to deal with crime and criminal justice, but much controversy remains over what to do with convicted criminals. The United States imprisons a higher proportion of its people than any nation except Russia and prison overcrowding is a policy dilemma faced by many states. At the beginning of 2004, 6.9 million people were on probation, in jail or prison, or on parole—more than 3 percent of all U.S. adult residents or 1 in every 32 adults. More than 2 million prisoners were held in federal, state, and local prisons in the United States.
State and federal prison authorities had under their jurisdiction nearly 1.5 million inmates in 2004—more than 1.4 million under state or local jurisdiction, and more than 173,000 under federal jurisdiction. The states have developed a variety of strategies to deal with crime, such as front-door strategies like alternative sentencing, and back-door strategies such as early release systems and electronic house detention. Some innovations have been less effective than anticipated. Private prisons, for example, appear to provide only a small savings (about 5 percent) over government owned prisons. Crime remains a significant issue despite the fact that crime rates have been falling for a number of years (the trend began during the 1990s). In fact, in 2003 crime rates had dropped to their lowest rate since 1966. Despite declining crime rates, the judiciaries of most states remain overburdened with caseloads.
As a result of the modernization efforts, courts are now more independent from political pressures and favoritism and more accountable for their actions, but increased state judicial activism also has accompanied modernization. Innovations in the courts and the criminal justice system continue to occur in the states.
Module 8 ( Chapter 10 and 11)
Chapter 10: State-Local Relations
This chapter covers the following:
The Distribution of Authority
Metropolitics: A New Challenge for State Government
States and Their Rural Communities
The Interaction of States and Localities
After reading this chapter, students should be able to understand:
1. The nature of authority and differing degrees to which it is granted to local governments by state governments.
2. The purposes of state mandates, the complaints made about them by local governments, and the increasing adoption by some states of mandate-reimbursement requirements.
3. The organizations created by state governments to expand state understanding of the needs of
4. The side effects of urbanization on local governments and what they and state government are
doing while this is occurring.
5. The alternative forms of specialized minigovernments and regional governments or coordinating bodies that have been created to deal with sprawl associated with growing metropolitan areas.
6. The variety of growth patterns in rural areas and the role that states might play in helping those
with declining growth patterns.
7. The current trend in rethinking state-local government relations as states recognize that their own resurgence depends on strong local governments.
CHAPTER SUMMARY State legislatures are the trustees of the basic rules of local governance in America. The constitutions and laws of the states are the legal instruments of local governance. States have recently begun to treat local governments as partners, though the effort is by no means a well-coordinated one. General purpose governments typically have wider latitude than special-purpose governments. The more recent a state’s constitution, the more likely it is to empower local government; but only about one-half extend truly proprietary policymaking power to their cities, and even fewer accord counties similar powers.
The real distribution of authority can be seen in an important function like highway planning, where state and local officials do consult. A nationwide survey shows general satisfaction with this arrangement, but the state has the last word and in some functions, like growth management, the consultations generate considerably more friction.
State governments find their dealings with local governments confounded by the side effects of urbanization. Several waves of suburbanization have affected the urban area: the 1920s move to the suburbs facilitated by the automobile; a resurgence in the 1950s that saw retail stores follow the population exodus; and, most recently, the development of office space beyond the central city. Indeed, central cities in the 1980s were fundamentally altered as the urban landscapes have come to be composed of relatively self-contained and self-sufficient decentralized regional units.
These new “boom towns” have outpaced the central cities and are considered to be the “new frontier” of urbanized America. This has created a need for changes to outdated state policy toward metropolitan jurisdictions.
Rapid unplanned growth is producing sprawl and “shadow governments.” State governments appear to be doing more than they used to about the problems created by unplanned growth. New developments on the outer reaches of the central city are called “edge cities.” Their existence around Phoenix, Honolulu, and Seattle and state responses in each case are illustrations of state involvement with the problem.
A new form of local government, called “shadow governments,” emerged from edge cities found outside of large cities like Phoenix, Arizona. They may be private enterprise shadow governments, such as homeowner associations; public-private partnerships, such as development corporations; or subsidiaries of conventional governments with unusual powers, such as areawide planning commissions. More than 150,000 such arrangements exist. Although they generally operate within the confines of state law, the states have displayed a curious hands-off posture.
This is surprising, inasmuch as the shadow governments raise serious questions of power and equity. Their vaunted efficiency, however, makes them a power to be reckoned with and their number is increasing, not decreasing.
Continued urban expansion and shadow governments make up extended webs of independent jurisdictions. State governments seem not to have much idea about how these places would best be governed.
Regional government is one alternative to these specialized mini-governments. And closely related to regional government is the city-county consolidation currently found in thirty-three consolidated governments. These governments are seen as a way to address stubborn areawide problems and produce economies of scale in service delivery. Criticisms of these arrangements include their inaccessibility and the destruction of hard-won political gains of minorities.
Regardless of the reasons, the voting public has stubbornly resisted them, and state legislatures have been reluctant to follow the nineteenth century lead of unilaterally creating them.
Strong local governments make for resurgent state governments. Local governments benefit from positive relations with the states. Nonetheless the two levels frequently clash, with dire consequences.
State-local relations are always in flux, and the trend over the past three decades has been toward increased state assistance and empowerment of local governments.
Chapter 11: Local Government: Structure and Leadership
This chapter covers the following:
Five Types of Local Governments
Leadership in Local Government
Communities and Governance
LEARNING OBJECTIVES After reading this chapter, students should be able to understand:
1. The nature of local governments and how they developed.
2. The difference between general-purpose and special-purpose governments.
3. The general role of counties, the possible variations based on their urban/rural nature, and the
different organizational structures of that level of government.
4. How municipalities or cities are created and alternative structural types of city governments.
5. The role of special-purpose districts, their advantages, and the basis for uneasiness about their
6. The nature of the school district as a special type of single-purpose local government, its
governance, and the concerns over unequal distributions of financial resources.
7. The difference between strong and weak mayors and the requisites for success irrespective of
formal power, and the mayoral types that occupy office.
8. The success of women and minorities winning elections for the mayor's office.
9. The changing nature of city councils and the increasing racial, ethnic, and gender diversity of
those legislative bodies.
10. Suggestions about judging how well communities are governed.
CHAPTER SUMMARY American local governments sprouted in response to a combination of citizen demand, interest group
pressure, and state government acquiescence. As a consequence, no scientific system of local
government exists. General-purpose local governments perform a wide variety of governmental
functions, and counties, municipalities, and towns and townships all fall into this category. Specialpurpose
local governments generally focus on a specific purpose and one function. Best known of these
are the school districts. Regardless of name, it is state government that gives local governments of all