David Savage of the Los Angeles Times  reports an interesting perspective about Justice Scalia’s role in the development of criminal procedure.  Since Crawford v. Washington, 541 U.S. 36 (2004), Justice Scalia  has led the charge for more strict enforcement of the Sixth Amendment’s confrontation clause. Savage’s article points out that originalist approaches to constitutional interpretation do not always produce “conservative” results.  Predicting how the current Court will take up and decide cases on criminal procedure is a tricky proposition, but perhaps a  way to understand the current Court’s division on questions of criminal procedure is as a split between formalists and pragmatists — between those inclined to enforce a bright-line constitutional rule and those inclined to account for practical considerations.

C-SPAN, Sen. Grassley Seek Televised Supreme Court Argument in Health Care Case

Many states have for years permitted television coverage of court proceedings. When the Florida Supreme Court decided the fate of the election recount of the Presidential election in 2000, the arguments were broadcast, and the public left with a better understanding of how the Florida justices viewed the case. C-SPAN Chairman and CEO Brian Lamb and Senator Charles Grassley (R. Iowa) have both submitted letters to Chief Justice John Roberts asking that cameras be permitted to record the historic 5 ½   hours of oral argument on the constitutionality of the Patient Protection and Affordable Care Act.  Not to be cynical but this is something not likely to happen.  

 Senator Grassley, who has sponsored bills to authorize broadcasting of federal court proceedings, wrote:  “[G]iven the nature of the topic, everyone in the country would benefit from following the proceedings in this threshold case. …Providing live audio and video coverage of the oral arguments will be of great benefit to the Court and to the public. Letting the world watch these historic and important proceedings will bolster confidence in our judicial system and the decisions of the Court.”

 As noted by Legal Times, among the current members of the Court, only Justices Sonia Sotomayor and Elena Kagan have expressed support for making video recordings of the Court’s arguments available to the public.

Mention the legal system and most Canadians think of crime – publicly funded overpriced lawyers, interminable gang trials, and judges who are too soft on thugs. But the vast majority of court time is devoted to civil, family and non-criminal cases.  The federal Conservative omnibus crime bill is grabbing attention, but it’s the moribund civil system that requires resuscitation and reform.  In B.C. last year, 48,591 civil cases, 13,088 family cases and a paltry 1,054 criminal cases were filed in the province’s Supreme Court.  The lower provincial bench had 87,567 traffic and bylaw cases filed as well as 18,064 small claims, 41,551 family and 8,097 youth cases, compared with 101,865 criminal briefs – about 40 per cent of the filings for 2010.

Unfortunately, government under-funding and ever-increasing costs have seriously gummed up the cogs of civil justice, and most Canadians don’t realize how bad things are until they get fired, evicted, separated, or have a credit dispute.  Then they quickly understand something has gone terribly awry – the proverbial wheels of justice are not simply turning slowly, but seem to have completely seized up.”  Read more: http://www.vancouversun.com/news/Better+funding+only+crippled+civil+justice+system/5754247/story.html#ixzz1euwezTKM

 The Chief Justice of British Columbia’s Supreme Court has issued a  call for judges  to speak out against provincial funding cuts that he says threaten B.C.’s judicial system. In a recent speech Chief Justice Robert Bauman said, “The stability and integrity of our courts and judicial system are being slowly eroded by a lack of funding……Our judicial system is one of the best in the world. But it is threatened, if not in peril.”

The entire sppech can be found at: http://www.courts.gov.bc.ca/supreme_court/about_the_supreme_court/speeches/Challenges to the Budget for Court Services Branch- CBA-BC Las Vegas meeting.pdf.

 Chief Justice Baumen said the court  budget will be reduced by more than 10 percent between 2008 and fiscal 2012-13, a cut that he said “translates directly to a reduction in staffing levels.”  He said staffing shortages at court registries have meant delays of up to six months in the processing of court orders, which he said impedes access to justice for litigants.  Read more: http://www.vancouversun.com/news/Judge+sounds+alarm+over+funding/5766133/story.html#ixzz1euqGovEe

 The headline for an Orlando Sentinel editorial about the state’s court funding crisis delivers a concise message: “Judges should carry gavels, not tin cups.”  Before the end of the most recent fiscal year on June 30, Florida legislators had to seek an emergency infusion of funds for the courts. With a wave of foreclosure cases halted, a primary source of revenue for Florida’s courts under a revised funding formula was affected, and the courts faced for a time a large shortfall in funding (see Gavel Grab).

More recently, Gov. Rick Scott approved an emergency $45.6 million loan to help plug a major funding gap for Florida’s courts; it was requested by Florida Chief Justice Charles Canady.  The editorial agrees with Justice Canady’s remark that “This is not the way to run a branch of government.” It adds:  “Especially not the judicial branch, which has a constitutional duty to check abuses of power by the executive and legislative branches. What happens when courts must depend on the governor or Legislature for periodic bailouts?”

 Finally the New York Times reports, ““The justice system’s funding has been decreasing in constant dollars for at least two decades,” said David Boies, co-chairman of a commission formed by the American Bar Association to study court budget issues. “We are now at the point where funding failures are not merely causing inconvenience, annoyances and burdens; the current funding failures are resulting in the failure to deliver basic justice.”   For the complete New York Times Story see: http://www.nytimes.com/2011/11/27/us/budget-cuts-for-state-courts-risk-rights-critics-say.html?_r=1&adxnnl=1&hpw=&adxnnlx=1322406030-0tGu3Te8Os+hQhaMAMu3RQ

A lot of national press attention has focused on how the State of California is struggling to find ways to reduce its state prison population and cost, but the issue is not peculiar to California. The Atlanta Journal Constitution in a story written by Bill Rankin reports that, 

Shortening sentences for some nonviolent offenses and creating a statewide network of accountability courts could help prevent Georgia taxpayers from spending more than $250 million to accommodate an expanding prison population, a state panel said. The Special Council on Criminal Justice Reform said changes are needed to control the unimpeded growth in state prison spending, which has doubled over the past two decades to $1.05 billion a year. The panel noted the growth is being fueled by drug and property offenders who account for about 60 percent of all prison admissions.

The council noted more than 3,200 offenders enter prison on a drug possession conviction each year and two-thirds of these inmates have been found to be low risks to offend again.

For that reason, the panel recommended the creation of a statewide system of drug, mental health and veterans’ courts that offer alternatives to incarceration and a more robust supervision of offenders released from custody to reduce recidivism. Some of the cost savings from the reforms can be used to help fund these programs, the report said.

The report can be found at http://www.legis.ga.gov/Documents/GACouncilReport-FINALDRAFT.pdf