2011 State of the Judiciary
On Jan. 12, 2011, Chief Justice Randall T. Shepard delivered his 24th State of the Judiciary address to a Joint Session of the Indiana General Assembly. An excerpted version follows. The State of the Judiciary was broadcast to a statewide audience over the Internet and on radio and television through Indiana Public Broadcasting Stations. Video of the speech and the full text of the 2011 address are available online. Visit courts.in.gov/supreme/state_jud.html for all addresses since 1988.
One of the features of our recent national dialogue was skepticism about the capabilities of public institutions and leaders. You’d occasionally hear phrases like the “government is broken,” and while people say that in Indiana they didn’t often say it about Indiana.
That’s because, even acknowledging our multiple problems, many elements of Indiana government under serious strain have proven themselves capable of coming to terms with crisis.
The men and women of Indiana’s courts have also proven able to diagnose a defect or identify an opportunity and capable of seizing the best ideas available.
Today’s challenges cover an amazing range. What do we do when someone who speaks only Laotian shows up in court? What can be done to cut the cost of litigation? How do we expand a new system of assessing the effectiveness of individual courts? How do we provide advocates for the thousands of abused or neglected children? How do we advance the cause of equal opportunity in the legal profession? How do we give a fair hearing to litigants when there’s a sixteen percent growth in case filings but only four percent more judges?
The men and women of the Indiana courts tackle all these issues and more, both through long-range strategic planning and through immediate action.
The Mortgage Foreclosure Crisis
The first is a genuine crisis on which all three branches of Indiana government have worked: mass foreclosures. Foreclosure filings were even higher last year than in 2009. Indiana is no longer near the top of the national list, but that’s little comfort to the 43,000 new families facing foreclosure.
New legislation gives homeowners the right to a settlement conference and the chance to negotiate a modified loan. With our partners, we’ve been perfecting techniques to maximize the possibility of success.
Initially, just five or six percent of homeowners responded to the notice offering a settlement conference.
The judges working on this have discovered that when the court itself sends a separate settlement notice, more than 40 percent of the homeowners respond. To make sure these conferences are productive, we have assigned settlement facilitators. The facilitators report that many homeowners appear for the settlement conferences embarrassed, resigned, and tearful. In recent months this system of court-facilitated conferences has demonstrated that half the number of people who attend a settlement conference leave with a revised loan. Settlement conferences occur in counties that have 60 percent of the foreclosures and will be statewide by year’s end. Everything is paid for with a user’s fee on foreclosure cases.
The Smartest Sentencing Possible
A year ago, all three branches of government asked the Council of State Governments and the Pew Center on the States to assist the Indiana Criminal Code Evaluation Commission with review of our state’s criminal corrections. Recently, these researchers and Hoosiers working with them issued their proposals. The Commission members—legislators, corrections staff, prosecutors, public defenders, and judges—all endorsed them.
The central idea of these proposals is to find better ways to sanction non-violent offenders locally. Half of the new commitments to our prison are people whose crimes are in the least serious category.
In my career I’ve handled theft cases and I’ve signed warrants for lethal injection. In between those polar opposites, making sound decisions about which offenders must go to prison and which offenders may respond well to local alternatives makes all the difference for public safety, recidivism rates, employability of offenders, and the dollars we spend on corrections.
A weakness in our criminal justice system has been the use of relatively outdated assessment tools to evaluate individual offenders But there are now more reliable tools to help sort out who needs to go to prison and who probably does not. In early January a new generation risk assessment became mandatory in every criminal and delinquency court. We have trained and tested 2,300 probation and corrections officers, drug and alcohol staff, and judges in using it. The package of sentencing reforms before you is based on reliable evidence. It’s good for Indiana and I join Governor Daniels in endorsing it.
Tackling Technology
Indiana’s courts have proven themselves capable of identifying an opportunity or a problem, devising a plan to address it and executing the plan, especially in the area of technology. Here are some examples.
Every county now uses a Judicial Technology and Automation Committee (“JTAC”) system to notify law enforcement immediately when a court enters a protective order. Now thirty agencies and 300 victim advocates can apply online for an order and avoid a trip to the courthouse. When the abuser receives the order, victims will soon get a text or e-mail notification.
We have also dealt with how to enforce effectively the laws designated to prevent people who are certified mentally ill from purchasing firearms. JTAC created an electronic system for notifying law enforcement when someone is adjudicated mentally ill. Last week alone, names of 39 people were transmitted so police and gun dealers could do their part in keeping firearms from the mentally ill.
We have cut down on the hand-writing of traffic tickets with about 200 police departments using our Electronic Citation and Warning System to electronically process 2.8 million citations.
All of these solutions to various problems work ever so much more powerfully when they are linked to each other through a court case management system we call Odyssey. We now use it in 77 courts in 26 counties accounting for nearly a third of the state’s caseload.
The power of this combination is something judges, clerks and police see close up. Let me tell you about a recent e-mail from a bail commissioner in Fort Wayne. He was doing a regular check on a defendant out on bail and learned on Odyssey the defendant was wanted on a felony warrant in Huntington County. It was on Odyssey before it was logged into IDACS. Authorities arrested the defendant. Absent Odyssey, the warrant might never have been discovered.
Counties often ask us when can we install Odyssey. We are now installing it twice as fast as last year. Just how fast we can get this done essentially depends on how many teams we can send to the courthouses and city halls.
We pay for this work with federal grants or with fees paid by court users, presently $7 a case. We ask that it be temporarily increased to $10 to speed up installation.
Plain English Jury Instructions
People come to the courthouse by the tens of thousands to make possible that jewel of the Bill of Rights, trial by jury. During those trials, lawyers and judges explain the law that applies to the case jurors are being asked to decide. Too often, we use legalese. To end this practice, the Indiana Judges Association began work on “Plain English Jury Instructions.” The drafting committee, led by Judges John Pera and Carl Heldt, and an English teacher, spent three years revising the traditional instructions. You can see the difference:
Old instruction:
Direct evidence means evidence that directly proves a fact, without an inference, and which if true conclusively establishes that fact. Circumstantial evidence means evidence that proves a fact from which an inference of the existence of another fact may be drawn. An inference is a deduction of fact that may logically and reasonably drawn.
New instruction:
Direct evidence that an animal ran in the snow might be the testimony of someone who actually saw the animal run in the snow. Circumstantial evidence might be the testimony of someone who only saw the animal’s tracks in the snow.
How Good is What We’re Doing?
Often we are asked for advice from people outside Indiana. A chief justice called to say that their judges wanted to do something about jury instructions. Experts told her: “Call Indiana.”
A federal judge was thinking about allowing jurors to ask questions during trial. I sent him to Marion County Judge Robert Altice.
The Council of State Governments and The Kennedy School both gave JTAC awards.
Judge Greg Donat won the nation’s leading honor for helping citizens navigate the legal system without a lawyer.
The American Bar Association said our Courts in the Classroom civics project was one of the best in the country.
In short, Indiana’s judiciary is one that keeps its feet planted firmly on Hoosier soil while keeping its eyes on the horizon. They are men and women of high ambition who are capable of confronting a problem, devising a plan, and executing on the plan.
Why Does This Matter?
Whether we can build a better system of justice matters first and foremost to the individual citizens who come to court as part of the two million cases we hear every year. Our first duty is give them a full and fair hearing.
But whether we run a respectable court system also matters for people who have never seen the inside of a courtroom because a reliable court system is part and parcel of a decent government and a crucial element of a healthy and productive economy.
I recently heard an interview with the author of a book on the economic miracle of India. It centered on the differing narratives of India and the United States. The United States, said the reporter, has always thought of itself as a place of unlimited future opportunity, but now wonders whether it will be such a nation in this new century. India, long held back by caste and class, is now written about as the wave of the future. The reporter asked if India is “The New Land of Opportunity?”
The author said in both countries we tend to overplay the story line of the day and underplay the fundamentals. He noted it will take other countries a century to replicate American universities, Silicon Valley and the way the American legal system functions. In short, the message was that if we do what it lies within us to do, places like India and China aren’t going to catch Indiana for a very, very long time.
I promise you we’re building a court system that does its part to make that so.