New Judges: Coda – Size Doesn’t Matter

Chicken-littling (from a letter to the Chronicle) about the sudden appearance of new judges, not fresh out of the DA’s office, in Harris County’s Criminal Justice Center:

It will be interesting to see the changes in the next few years. With eight courts being led by judges on a “learning curve,” watch their dockets increase. Watch the appellate courts reverse decisions, the tax dollars wasted and the criminals who are set free.

“Watch their dockets increase.” What that means, for the uninformed, is that the courts with new judges might not be able to dispose of (by trial, plea, or dismissal) as many cases as the State files, so that the number of defendants on the docket will creep up. A report circulates regularly (weekly?) around the courts with a bar graph showing how many cases are outstanding in each court. It might take a couple of years for the trains to start running on time in those courts with new judges.

But the courts’ emphasis on trains running on time is misplaced, and reveals confusion about their proper role.

Consider the key players in the criminal justice system:

  • The legislature, which makes the laws and creates the courts;
  • The police, who arrest people accused of committing crimes (and sometimes even investigate);
  • The DA’s Office, which charges and prosecutes people the police have accused of crimes;
  • The defense bar, which defends those people, trying to clear their names or minimize their punishment; and
  • The judges, who act as referees between the DA’s Office and the defense bar, decide punishment when defendants so choose, and decide facts when both sides allow them to.

The legislature could reduce dockets by making less stuff illegal, or by creating more courts. The police could reduce dockets by arresting fewer people. The DA’s Office could reduce dockets by filing fewer charges, or by making lower plea-bargain offers. The defense bar could reduce dockets by convincing clients to take higher plea-bargain offers (not that we would — docket size is most emphatically not our responsibility — but we could).

So what can judges do to reduce their dockets? In Texas they can’t dismiss cases except on the motion of the State. They can’t ethically pressure defendants to plead guilty (though I have seen at least two of the departing judges do just that, and I don’t know that all of the incoming judges are above it). They could, I suppose, pressure the State to make lower plea-bargain offers, but that would still depend on the State’s participation. Or they could bring cases to trial faster. And that’s it.

Our criminal district court judges should be trying as many cases as they can. But even if they were men and women of steel with no administrative duties, it’s hard to see how they could conceivably try a hundred cases each per year — 2200 across all the district courts — or how that would make any serious dent in the 50,000 or so felony cases filed every year.

So if we’re going to place responsibility for courts’ docket sizes, we should be placing it on the legislature, the police, the DA’s Office, or the defense bar — anywhere but on the judges. (We could, I guess, try to place it on the accused, but they, like the defense bar, don’t work for us.) If the legislature creates too many laws and too few courts and, as a reasult, the police arrest too many people and the State files too many cases, it’s not the judges’ job to act as enabler to the other branches of government.

When judges accept responsibility for the size of their dockets, they take an improper role in the system. They align themselves with the prosecutors (who want to reduce dockets, and actually have the legal and ethical power to do so — witness occasional “fire sale” plea bargaining) rather than justice. There is likely an opportunity cost: time spent managing the docket might be better spent doing the things that are and should be part of their job. That job is to do justice, and justice can’t be rushed.

So the alarmism about dockets increasing may be well-founded, but it should be met with a resounding “so what?” The dire warning about reversals, on the other hand, is almost entirely fictive. More on that next.

0 responses to “New Judges: Coda – Size Doesn’t Matter”

  1. Interesting fact: Pat Lykos always had the most backlogged docket in the courthouse while she was on the bench. It was not unusual for the 3 man to have 30 cases set for trial every Monday and the 2 man to have another 10 or so. This was before the crack revolution and most of the cases were theft, burglary, agg. assaults. Defense attorneys often refused to plead cases to her. I wonder if she has melloed?

  2. All crim defense people should simply start watching the 60-day demands, and making the appropriate motions as they expire. Make it clear you’ll not waive them. Eventually, if the courts aren’t keeping up, the admin will have to make the decision to start delaying the civil cases, ‘cuz the trial demands HAVE TO be met, or dismissed.

    Once the big-bux civil lawfirms start getting their court time cut out, legislatures usually pony up some more money for the courts.

  3. Mark wrote: “The dire warning about reversals, on the other hand, is almost entirely fictive.”

    This. Reversal rates will increase only if rulings in favor of the State increase. An error benefiting the defendant cannot result in a reversal. One would think that judges who have not come directly from the DA’s office will be at least somewhat less likely to make pro-State rulings than those judges who did, which, if true, can only mean less reversals, not more. I see you’ll be discussing this further, though, so I’ll leave it there.

  4. I am unfamiliar with the inner workings of the Harris County Court System. However, progressive alternatives to incarceration as more humane and less costly alternatives (saves tax payers money) to expensive prison costs have been instituted in some jurisdictions. In Tulsa County, we have multiple “alternative courts” which offer alternatives to traditional systems of incarceration. In 2006 according to the Bureau or Justice Crime Statistics, Oklahoma led the nation in the rate of incarceration for women. Tulsa County has now instituted the following:
    — Drug Cout
    — DUI Court
    — Mental Health Court
    — Accelerated Accountability or “Community Sentencing Court”
    — Youthful Offenders Program for Drunk Drivers (Up to the Age of 26 years)

    Along with multiple alternatives to incarceration such as work release, weekend incarceration, private treatment or prison placement, GPS monitoring, SCRAM monitoring, inter-lock automobile devices, random UA’s, etc.

    “According to the NACDL, new recommendations for the “2009 Legislative and Administration – Smart on Crime Approaches to Crime” are in the process of being prepared — More than 25 organizations and individuals participated in developing policy recommendations across 15 broad issue areas. They then vetted those recommendations with a broader group of experts, representing a diversity of philosophies and points of view, to assess the substantive and political viability of each recommendation. For each issue area, the document:

    • Identifies and summarizes problems; —– . . . —-
    • Evaluates possible solutions and identifies potential areas of agreement;
    • Provides hyperlinks to other materials that explore the issues in greater depth.

    For policy questions, please contact the individuals or organizations identified as the authors of or policy experts for each section. However, please direct general questions to the Constitution Project, which coordinated this collaborative effort. The catalogue is available online at, at, and at the websites of many of the participating organizations. “

  5. Private treatment or “private prison” placement where the defendant spends about 6 months at a private prison or treatment center but is allowed to go to work during the day and checks in at night and lives there and pays for their own treatment or incarceration, have become more acceptable alternatives to the traditional prison approach and have saved the tax payer the costs of incarceration while allowing the defendant to maintain employement and contacts with family.

  6. We few, we happy few, we band of brothers;
    For he to-day that sheds his blood with me
    Shall be my brother.
    Shakespeare, Henry V, Act. IV, sc. 3, St. Crispin’s Day Speech (1599)

    NACDL has been here for 50 years, and we will be here as long as there are criminal defense lawyers. There will always be a need and a voice for “Liberty’s Last Champion.”
    This is our calling. This is our life. We are NACDL.

    In Defense of Fellow Human Beings,

    Glen R. Graham, Tulsa Criminal Defense Lawyer – The Link to my name above next to the bull cartoon, links to my explanation for Tulsa County’s alternative courts.

  7. Actually, the easiest way for the dockets to go down is for all the criminals in this crime ridden county to quit commiting so many crimes.

  8. I’ve been following the whole prison-industrial debate. It’s certainly one way to create jobs by throwing people in prison.

    You’re right – docket size doesn’t matter. There are a lot of ways to reduce dockets other than trampling on peoples right to a trial.

  9. Harris County has four drug courts, administered by volunteer Judges, DA’s and Defense attorneys.

    All four volunteer Judges were defeated in the election so now we will see if anyone will step and take their place.

  10. Michael, what’s an example of an error benefiting the defendant resulting ain a reversal?

    SC, we know that’s never going to happen. So as an alternative, how about if we decriminalize drugs and cut dockets by a third. Or if the legislature lowers penalties or creates additional courts. Or if ADAs get on the ball and stop neglecting cases that they know some other ADA will be on before they are resolved?

    Even if everyone in Harris County did stop breaking the laws we now have, I am confident that the legislature would step in and create another batch of new laws just to keep us all in business.

    Anon, I agree that this is a problem. Even though I expect other judges will step in, they will be starting from scratch. It might be a good idea for the County to find a way to bring a couple of the drug court judges back as magistrates just to keep the drug court going.

  11. I agree that drug laws are mostly useless and draconian, and do little but clog the felony docket. I also agree that more court would be nice, but I don’t see that happening much either, outside of the creation of specialized courts, of which we are seeing more.

    I don’t see the problem being the legislature “making stuff illegal” though. I don’t think that decriminalizing drugs is in the same arean as decriminalizing ID theft or BMVs or assaults.

  12. I’m actually okay with most crimes being crimes; I don’t always agree with the punishment range, but fortunately we live in Texas where the ranges are usually wide. I think most everyone would be surprised at how much dockets would shrink if suddenly drugs were like alcohol. I know I’d be looking for other work.

    A curious silence about my suggestion that ADAs should pay attention even to the cases that they know they won’t have to try. What do you say?

  13. Michael, the case you cite is a “reversal,” but not one resulting in a new trial, i.e., not one that costs the taxpayers money, which is the thrust of the argument put forward by the reactionaries.

    (Incidentally, the case says it’s an appeal, but it looks like it should have been mandamus. I don’t get how it’s an appeal. But, then, Texas courts don’t really care much for the rigors of the law unless they find in it a way to deny “criminals” a benefit.)

  14. Want to lower dockets? Madame leader needs to lead her crew to make reasonable offers on cases – especially that do not involve violence (or have a very low chance of resulting in violence.) Screen family violence cases better – come on – we know that many, if not most, are mutual combat. DWI – get real – can’t all of us tell what the OR is going to say before we even read it?! Motions to suppress – start granting some where common sense tells you the cops are not quite coming with the truth – there is no appeal from that – & then maybe the BS filings will stop. Driving without a headlight on a bicycle?!!!! Window tint???? Driving while white in a black neighborhood? Does anyone think a guy with a couple of kilos in the trunk actually failed to signal a turn? Get video cameras & record some of this BS. A reduction in BS filing means a reduction in case overload. (Of course, means less business for us . . .) Aren’t the prisons full enough?

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