Court Funding is Biggest Barrier to Justice for Citizens

Patrick Kelly, Guest Alumni Blogger

I believe the current court funding crisis is the greatest threat to our justice system and access to justice for our citizens I have seen in my 42 years of practice. I have focused upon this as the number one issue affecting the public and lawyers in California and have made it an integral part of every speech and discussion I have had since taking office in October. Examples of the carnage caused by these funding cuts exist everywhere in
California -- seven courthouse closures in Fresno, four courthouse closures in San Bernardino County and 10 courthouse closures in Los Angeles County, just to name a few examples.

The real toll is to the users of our courts -- the citizens of California who have a constitutional right to full and fair access to our justice system. Not only are we losing the neighborhood court system that provided access to all, but also user fees have escalated to the point that we are moving toward a disastrous pay-for-play system that is certainly not what the framers of our Constitution had in mind when they defined our rights. Moreover, the framers of our Constitution could not have envisioned a system where the rich have access through private judging whereas those less affluent and the poor have to stand in a line that because of a decline in resources is growing longer. These cuts have also threatened small businesses, the very engine of
California's economic recovery. The importance of this issue cannot be overstated. Paraphrasing Alan Greenspan, one of the key elements of business growth is ready access to a justice system that provides prompt dispute resolution.

Some argue that despite the budget cuts to the branch over the past few years, the funding has remained relatively stable due to the use of backup funds. That statement does not even scratch the surface of the whole story and implies that somehow the courthouse closures and longer lines don't exist. The truth is that while other states that fund courts generally spend about 2 percent of their general fund on the court system, in California it is 1 percent. In fact, the share of court funding that comes from the state general fund in California has fallen from 56 percent to 20 percent since 2008.

As noted, much of the money used to yield the impression of "stability" has come from redirection of court construction funds into court operations ($891 million since 2008); mandatory spend down of reserves ($500 million); redirection of funds intended for statewide court programs ($414 million); and increases in user fees ($397 million). Thus the fact is "stability" has left the court with a decimated construction and maintenance program, an almost complete loss of reserve funds necessary for court operations and a much higher cost for access to the long courthouse lines. And it gets worse. The ability to take courthouse construction funds is almost over and there is little left in reserves. In short, the money movement devices have now run out and the state will have to step up or we have only seen the tip of a much bigger iceberg of courthouse closures and staff layoffs. All of this leads to the inescapable conclusion that justice is being denied, and the magnitude of that denial is growing with each passing day.

Next week: How to solve the crisis...

Patrick Kelly is the Western Region Managing Partner at Wilson Elser Moskowitz Edelman & Dicker LLP and president of the California State Bar. A recipient of Loyola's Distinguished Alumni Award, he sits on the board of the Law School's Advocacy Institute and was elected to the Law School's Board of Overseers.

Attraverso Review: The Bankers' New Clothes: What's Wrong with Banking and What to Do about It by Anat Admati and Martin Hellwig

By Professor Jeffery Atik

I have the odd habit, with academic writing, of first reading the notes and then returning to the central text. I like to see the foundation of a work. Would that I had read the notes to The Bankers' New Clothes first!

For The Bankers' New Clothes is really two books which I had read in sequence (slave as I was to the Kindle's primitive formatting). The first book -- the primary text of 228 pages -- seemed simple-minded, sometimes shrill and often tedious. It argues for a significant increase in the amount of 'capital' (a specialized term in banking regulation) banks should maintain. The second book - the 107 pages of dense notes -- reveals a much more subtle, more flexible and more open understanding of the issues. This 'book' is more useful and persuasive. I recently heard co-author Anat Admati speak in Los Angeles. She described her surprise when first viewing the book as published, that it was so 'short' when the notes were stripped away and shuttled to the back of the book. It matters (Kindle take note) how books are presented; I would have had a better impression on my first read had these rich notes been on the page or gathered at the end of each chapter. And perhaps these authors will speak up the next time they write for the broader public.

Admati and Hellwig are on a mission. They fervently believe that banks should be required to hold more capital than present rules require. And by more, they mean much much more. From current rules that require, depending of the measure, 3 to 7 percent of a bank's assets, to something on the order of 20 to 30 percent. They demonstrate that such higher levels of capital (think of this like the ratio of equity to the fair market value of a house) would significantly increase the robustness of the entire banking system, relieving the state from facing new rounds of bailouts. Moreover, as the leverage of bank's decrease, banks will be less likely to attract the risk-seeking buccaneers that have managed our great financial institutions into the ground.

Most of the argument here is negative -- Admati and Hellwig counter the various claims promoted by bankers to justify the maintenance of low pre-Crisis levels of mandatory capital. Leverage is good, of course, for bankers -- they quickly harvest a good deal of the upside (through compensation) and, together with depositors and bondholders, largely escape the downside due to government supports, including ex post bailouts. In such a topsy-turvy world, management would be dim to resist gambling wildly on high risk, high yield plays.

Prof. Natapoff's "Misdemeanors" article honored with 2013 Law and Society Association Article Prize

Professor Alexandra Natapoff was honored with the 2013 Law and Society Association Article Prize for her law review article "Misdemeanors," which was published by the Southern California Law Review.

Abstract:

Misdemeanor convictions are typically dismissed as low-level events that do not deserve the attention or due process accorded to felonies. And yet with ten million petty cases filed every year, the vast majority of U.S. convictions are misdemeanors. In comparison to felony adjudication, misdemeanor processing is largely informal and deregulated, characterized by high-volume arrests, weak prosecutorial screening, an impoverished defense bar, and high plea rates. Together, these engines generate convictions in bulk, often without meaningful scrutiny of whether those convictions are supported by evidence. Indeed, innocent misdemeanants routinely plead guilty to get out of jail because they cannot afford bail. The consequences of these convictions are significant: in addition to the stigma of a criminal record, misdemeanants are often heavily fined, incarcerated, and/or lose jobs, housing, and educational opportunities. In other words, petty convictions are growing more frequent and burdensome even as we devote fewer institutional resources to ensuring their validity.

The misdemeanor phenomenon has profound systemic implications. It invites skepticism about whether thousands of individual misdemeanants are actually guilty. It reveals an important structural feature of the criminal system: that due process and rule-of-law wane at the bottom of the penal pyramid where offenses are pettiest and defendants are poorest. And it is a key ingredient in the racialization of crime, because misdemeanor processing is the mechanism by which poor defendants of color are swept up into the criminal system, i.e., "criminalized," with little or no regard for their actual guilt. In sum, the misdemeanor process is an institutional gateway that explains many of the criminal system's dynamics and dysfunctions.

Attraverso Review: Noble Savages: My Life Among Two Dangerous Tribes - The Yanomamö and the Anthropologists by Napoleon Chagnon

By Professor Jeffery Atik

Napoleon Chagnon's title promises a visit to two dangerous tribes: the Yanomamö and the Anthropologists. He provides a disjointed treatment. The larger part of the book takes the form of memoir, a return by Chagnon to the people he studied over the greater part of his career. The later chapters address the academic scandal surrounding Chagnon's work - and his place within the evolving discipline. Chagnon defends himself here - but he does not 'scientifically' study his anthropologist accusers: their violence (as opposed to that of the Yanomamö) is not explained.

Chagnon made the Yanomamö famous: his monograph (subtitled "The Fierce People') was widely studied (it was a highlight of the undergraduate Cultural Anthropology course I took). And of course the Yanomamö made Chagnon famous.Chagnon's work was always controversial. He presented the Yanomamö as among the world's few remaining "Stone Age" people, largely isolated in the regions dividing Venezuela and Brazil. From here they subsistence agriculture from ever shifting villages. The Yanomamö were hardly unaffected by encounters with the outside -- they grew plantains and other crops that had been introduced to South America and prefered modern tools (including the machete and shotgun). Chagnon depicted the Yanomamö as a violent society, characterized by treacherous killings, inter-village raids, and systematic abduction of females. The Yanomamö were not Rousseau's noble savages.

Chagnon's scientific work with the Yanomamö involved careful collection of data over a fairly long horizon -- tempered with some theorizing that gets him into hot water. Perhaps his most controversial claim was that Yanomamö competition (which is to say, violence) was directed at the acquisition of women -- and not of material resources. And violence is celebrated: men who have killed others (known as unokais) secure status and -- Chagnon documents -- have significantly more offspring than their more peaceable neighbors. Chagnon suggests that past human experience was much more brutish than we'd like to imagine. Still in his focus on violence from the perspective of competing (and cooperating) males, he overvalues male agency and neglects to inquire of the female Yanomamö: what is it that they seek?

Attraverso Review: Bull by the Horns: Trying to Save Main Street from Wall Street and Wall Street from Itself by Sheila Bair

By Professor Jeffery Atik

Bull by the Horns is part defense of past action, part call-to-action. Sheila Bair served as chairman of the Federal Deposit Insurance Corporation, one of the chief federal bank regulators, from 2006 through 2011 -- and thus rode the entire wave of the Financial Crisis. By her own account, she clashed with officials of both the Bush and Obama Administrations (in important cases, these were the same individuals). And throughout these times she was the most prominent woman in United States financial regulation.

Bair becomes the FDIC in this story -- she absorbs its mission and makes it her own. The FDIC has a peculiar mission -- and it has never been the only law in banking. Bair believes in deposit insurance but not bailouts. Deposit insurance is paid to depositors in the event of bank failure; bailouts are payouts to shareholders, bondholders and management in the same circumstances. There is a distinction here -- but perhaps not as self-evident a one as Bair imagines. Both deposit insurance and bailouts (under the Too Big to Fail doctrine or otherwise) create moral hazard. Bair though sees banking policy through the FDIC lens -- depositors (up to the FDIC limits) are to be given continuous access to their funds in the event of failure; shareholders and bondholders are to be wiped out and -- at least in most cases -- bank management is to be fired. All very by the book. Which is to say, Bair wants the bank resolution system to work as it is promised to work -- which of course is not at all what happened following the Financial Crisis.

Angelenos: United in Voter Apathy?

By Associate Clinical Professor Jessica A. Levinson

Mayoral candidates Eric Garcetti and Wendy Greuel are now in the final stretch of their campaign to become the next mayor of Los Angeles. Following the March 5 election, both candidates will seek to motivate voters to go to the polls. But what voters? According to preliminary numbers, only 16 percent, yes that's right, only one out of six voters went to the polls or mailed in ballots. In a city divided over so many issues, it seems elections have managed to unite 84 percent of eligible Angelenos in laziness, boredom, apathy, or all of the above.

In Los Angeles, the second most populous city in the nation, there are approximately 1.8 million eligible voters and 3.8 million residents. This means approximately 290,000 voters weighed in on decisions that will affect nearly four million people. Another way of thinking of this is that each voter voted for the interests of 12 people living in Los Angeles.

I cannot claim to have a comprehensive knowledge of the reasons behind this significantly depressed turnout, therefore I cannot seek to propose solutions to this problem. But I do know that by sitting out elections we are giving a few of our fellow Angelenos, those who cast ballots, a great deal of power over the face of our city government. In essence what we have is a city of residential representatives who chose our political representatives. But, of course, no one appointed or elected this first group -- they merely decided to take part in our democracy.

Finish reading this post on KCET.org.

DNA, crime fighting and the Fourth Amendment

By Associate Professor Kevin Lapp

On Feb. 26, 2013, the U.S. Supreme Court heard oral argument in Maryland v. King, a case that Justice Alito called "the most important criminal procedure case this Court had had in decades." The case involves the constitutionality of warrantless, involuntarily DNA collection from individuals who have been arrested for a felony, but not yet charged or convicted. It is uncontested that DNA collection constitutes a search for purposes of the Fourth Amendment. This case asks whether compelling such searches in the absence of a warrant, and the absence of a criminal conviction, is reasonable.

Maryland, together with 27 other states and the federal government, has statutorily mandated law enforcement to collect a DNA sample from certain individuals upon arrest. The DNA extraction happens not because the state has any articulated suspicion whatsoever that the search will produce evidence of criminality. Were that so, the state could get a warrant to compel a DNA sample. Instead, the law requires arrestees to submit to DNA collection (typically by a buccal swab) based merely on the fact of the arrest. It is done so that law enforcement can analyze the DNA sample and compare it to the thousands of DNA profiles already in state and federal databases, in the hopes that the arrestee's DNA will match as-yet unidentified DNA evidence related to unsolved crimes.

Such "suspicionless" searches are generally unreasonable. Indeed, they are precisely the kinds of searches that the Fourth Amendment was intended to stamp out when the Founding Fathers made it part of the Bill of Rights. But the lure of an effective crime-fighting technology has proved irresistible to many courts asked to rule on the constitutionality of compelled, warrantless DNA collection from individuals upon arrest.