3 February 2010
Chief justice delivers 2010 State of the Judiciary address
William Ray Price Jr., chief justice of the Supreme Court of Missouri, delivered the following State of the Judiciary address Wednesday morning, Feb. 3, 2010, during a joint session of the General Assembly in Jefferson City, Mo.
(To listen to the audio of the speech, please click here. Please note that there is some silence in the beginning of the audio file, while the chief justice was progressing toward the dais. The speech begins just after the 2-minute mark.)
Mr. Speaker, Mr. President, members of the General Assembly: It is my honor to deliver this 37th State of the Judiciary Address.
I am completing my 17th year as a judge of the Missouri Supreme Court. In that time I have seen governors come and go, speakers of the House, lieutenant governors, president pro tems of the Senate, representatives and senators, all come and go. They all faced challenges and all claimed success of one kind or another.
As we look at this coming year, it is helpful to place ourselves in the context of time. Modern science teaches us that the universe we know began with a “great bang” 14 billion years ago. The earth was formed four billion years go. Human life came into existence perhaps one or two million years ago. The reigns of David and Solomon were three thousand years ago. Against this backdrop, our lives, our times of service, are but a blink of God’s eye. Or in the words of the 90th Psalm: “All our days, pass away … like a sigh.”
The famous author, John Updike, who died this year, described life as a “leap out of the dark and back.” In more earthy terms, my uncle, an Iowa farmer, says that “no man plows too deep a furrow.” But no matter how brief our time or small our step, this is our opportunity to do what we can to make Missouri a better place.
In some years, there have been grand proposals and bold initiatives. Given the economic realities confronting us, that will not be the case this year. Instead our contribution will be to live within our means, to provide the core services of government to our people, to maintain what is essential for our future, and to focus intensely upon the cost and benefit of everything that we do in state government.
Today I will talk about three things: first, how the judiciary is doing its part to address the state’s financial short-fall; second, the need to rethink our strategies to deal with nonviolent crime, including drug and alcohol abuse; and third, a brief thought about the Missouri Nonpartisan Court Plan.
The judiciary has come to this time of financial crisis already lean. We were not favored in the last few years when times were better. Nonetheless, when the extent of the state’s budget crisis became evident last year, we voluntarily returned nearly $3 million of our appropriated funds for fiscal 2009. We will return another $3 million of appropriated funds for fiscal 2010. We expect that we will have to do the same for fiscal 2011. This was not -- and is not -- an easy thing for us to do. The effect of these cuts is magnified by similar budget cuts being made by the counties. For example, the Jackson County circuit court alone has been cut another $3 million by the county.
We have attempted to make our cuts in areas that would not impact our immediate ability to serve the judicial needs of the people of Missouri. However, the cuts we made severely jeopardize our ability to provide those services in the future. Let me share two examples.
Our statewide computer system needed the next generation of software, a software generation ago. We also needed to add the long promised e-filing component. But we have cut nearly $1.4 million from our technology budget.
Our programs to keep Missouri judges educated and up-to-date on the law are vitally important to the quality of our judiciary. Judges shouldn’t be the lowest paid and the least educated lawyers in the courtroom. But we have cut $443,000 from that budget. And so on.
My point is this. We recognize that as a branch of state government we must sacrifice to help balance the budget. We also recognize that we must keep the courts open to meet the needs of our people and to resolve the 800,000 lawsuits they file annually. In business terms, we will put the customers -- the people of Missouri -- first. But we have come to the point where any additional cuts will directly threaten our ability to handle Missouri’s legal business now and the cuts that we have already made threaten our ability to handle Missouri’s legal business in the future. When things get better -- and they will -- these cuts need to be restored as soon as possible.
Before leaving this subject, I would like to thank Senator Lembke for offering SJR 28. The resolution would link the pay of Missouri judges to 75 percent of the pay for the corresponding federal position. Interestingly, it would raise the pay of our associate circuit court judges to the same level as our circuit court judges.
There is not a single factor that more adversely impacts our ability to attract and retain quality judges as the relatively low level of judicial pay. Today we have four former Supreme Court judges, in the prime of their careers, enjoying the greener pastures of private practice and two enjoying the higher pay of the federal courts.
Missouri currently ranks 39th in the nation in pay levels for our trial court judges, who are paid approximately $120,000 per year. We have lower pay than all the states that surround us: Iowa ($137,000); Illinois ($174,000); Tennessee ($148,000); Arkansas ($136,000); Oklahoma ($124,000); and Nebraska ($128,000) … excepting only Kansas, whose trial court pay approximately equals ours ($120,000). (I don’t know if it is worse to be below Arkansas or tied with Kansas?)
Nonetheless, I cannot support this resolution. In the current financial crisis, there is no money for judges’ raises. I thank you for the idea, but the time is wrong.
Now I need turn our attention to the area of criminal law. Given the difficult financial situation of the state, we must look hard at the costs and effectiveness of our current statutory schemes, especially for nonviolent offenders.
The criminal justice system is very expensive. Law enforcement, prosecutors, public defenders, courthouses, and prisons all cost a lot of money. However, one of the core functions of government is to keep people safe in their homes and safe on the streets. But just because this is one of the most important places that we spend taxpayer money, it does not mean that all of that money is well spent.
For years we have waged a “war on drugs,” enacted “three strikes and you’re out” sentencing laws, and “thrown away the key” to be tough on crime. What we did not do was check to see how much it costs, or whether we were winning or losing. In fact, it has cost us billions of dollars and we have just as much crime now as we did when we started. We have created a bottleneck by arresting far more people than we can handle down through the rest of the system.
We may have been tough on crime, but we have not been smart on crime. I would like to talk about this problem from three different perspectives: public defenders, prosecutors, and nonviolent offenders. It does no good to commit resources to law enforcement and to arrest criminals if you don’t know what you are going to do with them, or you cannot afford to do what you should with them, after they have been arrested. It does no good.
The first problem is how we are going to try all the people we arrest. We already have discussed the financial stress under which the court system is operating. But our public defenders and prosecutors are also stressed to the point of breaking.
Last year the public defenders came to you and told you that they were under-funded and overworked. You appropriated to them an additional $2 million of which they received $500,000. A number of lawsuits regarding their situation were heard and decided in our Court. Essentially we acknowledged the public defenders’ crisis in funding, but we declared certain of their regulations limiting their workload to be beyond their statutory authority.
The United States Constitution requires that anyone charged with an offense that may result in jail time be provided an attorney if he or she cannot afford one. The United States Constitution also requires timely trials of criminal cases. If there aren’t enough public defenders, the system cannot wait, and jail time cannot be threatened or imposed.
The solution to this problem is relatively simple: either increase the public defender’s funding or tell the public defender who to defend and who not to defend within the limits of their funding. At present, you only allow the public defender to determine eligibility by indigency. That means only the poorest offenders will qualify, regardless of the severity of the crime. I would suggest that the most serious charges be targeted, and that the least serious charges be those for which jail time cannot be sought, if we cannot adequately fund the public defender’s office. This is simple common sense. Spend our money where it counts. But your statutes don’t read that way now.
The state’s prosecutors are also underpaid and overworked. Even though they bring charges in the name of the State of Missouri, they are county officers and their pay levels and workloads are determined by the counties they serve.
In some ways prosecutors are the most powerful individuals in the criminal justice system. They decide whether charges are brought. They decide what charges are brought. They decide what plea agreements are made. If we want these decisions to be made well, we need people making them who are not underpaid and overworked. If we want these decisions made consistently across the state, there needs to be state involvement.
The inconsistency that you have read about in statewide DWI prosecution, plea bargaining, and sentencing exists in all other areas of our criminal law as well. Listen to the disparity. Prison sentences as a percentage of all criminal dispositions for fiscal 2009 ranged from 10.8 percent to 48.7 percent among our various circuits. That means that 1 out of every 10 people found guilty of a crime is sentenced to jail in our lowest sentencing circuit, while 5 out of every 10 are sentenced to jail in our highest sentencing circuit. The average length of sentences also varies greatly. The average sentence in our lowest sentencing circuits is 4.5 years and 9 years in our highest sentencing circuit. Such a great disparity from circuit to circuit cannot be what we want from a moral, financial, or any other perspective.
The Missouri Bar has appointed a committee to look into recommendations for public defenders and prosecutors. The committee is chaired by your former colleague Joe Moseley. Prior to serving as a state senator, he also served as a prosecuting attorney and as a public defender. I would expect the committee to come to you with a balanced and practical proposal. Whatever the recommendation, this problem needs careful consideration -- consideration that goes beyond merely the dollars that are appropriated.
Perhaps the biggest waste of resources in all of state government is the over-incarceration of nonviolent offenders and our mishandling of drug and alcohol offenders. It is costing us billions of dollars and it is not making a dent in crime.
Listen to these numbers. In 1994, shortly after I came to the Court, the number of nonviolent offenders in Missouri prisons was 7,461. Today it’s 14,204. That’s almost double. In 1994, the number of new commitments for nonviolent offenses was 4,857. Last year, it was 7,220 -- again, almost double. At a rate of $16,432 per offender, we currently are spending $233.4 million a year to incarcerate nonviolent offenders … not counting the investment in the 10 prisons it takes to hold these individuals at $100 million per prison. In 1994, appropriations to the Department of Corrections totaled $216,753,472. Today, it’s $670,079,452. The amount has tripled. And the recidivism rate for these individuals, who are returned to prison within just two years, is 41.6 percent.
I could quote different statistics and relationships to you all morning, but the simple fact is, we are spending unbelievable sums of money to incarcerate nonviolent offenders, and our prison population of new offenders is going up, not down -- with a recidivism rate that guarantees this cycle will continue to worsen at a faster and faster pace, eating tens of millions of dollars in the process. Missouri cannot afford to spend this much money without getting results.
The problem is not with the administrators of the prisons. I have worked closely with all of them, from Dora Schriro and Gary Kempker, to your former colleague, Larry Crawford, and now George Lombardi. These public servants were -- and are -- excellent at their work, as are their staffs. The problem is that we are following a broken strategy of cramming inmates into prisons and not providing the type of drug treatment and job training that is necessary to break their cycle of crime. Any normal business would have abandoned this failed practice years ago, and it is costing us our shirts.
Let me be clear: violent offenders need to be separated from us so they cannot hurt innocent men, women or children, regardless of the cost. I am not talking about them. I am talking about nonviolent offenders.
Nonviolent offenders need to learn their lesson. I’m not against punishment. Most often, though, they need to be treated for drug and alcohol addiction and given job training. Putting them in a very expensive concrete box with very expensive guards, feeding them, providing them with expensive medical care, surrounding them with hardened criminals for long periods of time, and separating them from their families who need them and could otherwise help them does not work. Proof is in the numbers: 41.6 percent are back within two years.
Although this is a horrible Missouri problem, it is not just a Missouri problem. Republicans and Democrats across the country are waking up. State Senator Stewart Greenleaf, a Republican from Pennsylvania, said:
- What we have done with the laws we passed over the last 20 years is thrown our net out there too widely and picked up too many little fish. We filled our prisons with nonviolent, first time offenders, and with no noticeable increase in public safety. (NCSL Roundtable, Sept.26, 2008).
United States Senator Jim Webb, a Democrat from Virginia, said:
- Focus must be placed on locking up the most dangerous people instead of diverting time and money to incarcerate the wrong people. (http//webb.senate.gov).
Newt Gingrich said:
- We have to fundamentally rethink prisons. (American Enterprise Institute forum, March 27, 2008).
There is a better way. We need to move from anger-based sentencing that ignores cost and effectiveness to evidence-based sentencing that focuses on results -- sentencing that assesses each offender’s risk and then fits that offender with the cheapest and most effective rehabilitation that he or she needs. We know how to do this. States across the nation are moving in this direction because they cannot afford such a great waste of resources. Missouri must move in this direction, too.
Of course, we must be careful and deliberate. This effort will require statewide coordination and revision of a number of our statutes. It will require diverting some offenders from prison and removing others from prison more quickly -- after they have learned their lesson, but before they are ruined by worse offenders and before they lose their ability to return to their communities, their families, and hopefully, jobs.
One thing we should do immediately is increase our investment in drug courts and expand that effort to DWI courts. Illegal drug use drives crime. Depending upon the study, 60 to 80 percent of crime involves drug use. We also know that simple incarceration, no matter how expensive, does not cure addiction. Treatment combined with strict judicial oversight does.
We know drug courts work. We have more than 8,500 graduates. And we know the tremendous savings that result from drug courts in Missouri. Many of you have visited our drug courts. Just two weeks ago, Speaker Richard brought two drug court graduates, Richard Rainey and Andrea Berin, to speak to you so you could see their success. Thank you for doing that, Mr. Speaker.
At one fourth to one fifth the cost of incarceration, more than one half of drug court participants graduate, and recidivism is only in the 10 percent range. The last five meta studies on drug courts, from all across the United States, have shown that drug courts reduce crime from 8 to 26 percent.
Five years ago I made a mistake. Senator Lager, then House Budget Committee chairman, offered $10 million to take drug courts to full capacity. I was afraid that we could not handle that much money that quickly and asked instead for $2 million a year for the next five years. We got the first million that year, but not the rest. So, for the last four years, our drug court program has been operating at half capacity and you have been wasting tens of millions of dollars a year in unnecessary and counterproductive incarceration costs. There is no excuse.
We need to expand our drug courts now -- $2 million more a year -- until we reach capacity. We will save you many times more than that, and you will save lives and families. You saw it right here.
I thank all of you who have supported drug courts over the years, but we are a long way from where we need to be.
I know you will also be looking at ways to improve our DWI laws this session. When you do, I suggest that you focus on your goals. Do you just want to punish offenders, or do you want to make our streets and highways safer places to drive? Long jail sentences and 10 year license revocations certainly punish people. We have those already, and look at the number of repeat offenders – more than 4,500 a year. The proof of the misfocus of our anger is in the numbers.
What we need, again, are evidence-based strategies tailored to produce results. A person with a blood alcohol content over .20, arrested for the second time in one year, is different than a person with a blood alcohol content of .081 arrested for the second time in 10 years. One size doesn’t fit all. Consistency between jurisdictions is a good goal; consistency among all offenders, despite their individual risks and needs, is not. Some of these people need jail time. For others, significantly increased monetary fines will work. Many need treatment for alcoholism.
We have had tremendous success with DWI courts. They operate on the same model as our drug courts. Commissioner Peggy Davis in Springfield runs a nationally recognized DWI court and trains judges across the country. We should have her training judges across this state. Our goal should not be to spend $16,000 a year to keep these offenders in jail as long as we can. Our goal should be to spend $3,000 a year to treat their alcoholism, and to return them to our state as productive tax-paying members of society who drive with licenses, with insurance, and who are sober.
Don’t kid yourselves. The 10 year, no exception, license revocation that we have now sounds good, but it doesn’t work. You cannot live and work in Missouri, especially suburban and rural Missouri, without a driver’s license. All the 10-year revocation guarantees is that the offender is driving without a license, without insurance, and probably drunk. What we need is a sober driver who has a restored license and insurance. Expansion of DWI courts statewide, and the return of licenses to sober DWI court graduates, will do more for the safety of our roads and highways than any other single change in the law you can make.
I will not comment on the proposed initiative petitions to replace the Missouri Nonpartisan Plan of selecting judges. There is pending litigation regarding these initiatives. That litigation is entitled to full and fair consideration on the merits of the issues raised by all parties. But you, again, have legislative proposals before you, so I will address this topic in a more general way.
There is a difference in our respective jobs that you should consider. You all run for office in general partisan elections. To do so you need to raise money, perhaps to hire special consultants, and to make promises to the voters about what policies you will support or oppose if elected. Once elected, you are expected to hold true to those promises. To some extent this is and has always been tolerated because the policies you campaign on are general in nature. The laws you pass apply to all. You seek to serve the will of the majority. No individual is singled out.
Our job is not that way. Though an equal branch of government, we have a more limited role. We resolve individual disputes. We have no power until litigants come to us with a real controversy, in which they have a real interest. When they do, we are not free to choose any resolution we want. We are first bound to honor our national and state constitutions. In fact, we are sworn to uphold the Bill of Rights that guarantees the rights of the individual, even against the will of the majority that you serve. We then follow the laws that you enact.
When the people of Missouri walk into our courtrooms, they expect and deserve to have their individual case heard on its facts and on the law, without fear that a rich man or a powerful interest has already bought the promise of the judge to rule the other way. Justice is rendering to each litigant what he or she is entitled to, not using his or her case as a stepping stone for fundraising or as a stepping stone for the advancement of a particular ideological or political goal, or as payback to a contributor.
Remember Avery v. State Farm, the case from Illinois in which an Illinois Supreme Court justice cast the deciding vote in a $450 million case in favor of an insurance company … after receiving more than $1 million in campaign contributions from those connected to the company. Remember Caperton v. Massey, the case from West Virginia in which a new West Virginia Supreme Court justice cast the deciding vote in a $50 million case after the CEO of that company spent approximately $3 million to defeat the new judge’s opponent.
Justice is a sacred but fragile concept. It depends upon the eye of the beholder, the trust and confidence of our people. It cannot be for sale to the richest bidder, the most powerful special interest group, or to the cleverest consultant.
The Supreme Court of Missouri has just voted to change the rules to release the names of all those interviewed for appointment under the Missouri Nonpartisan Plan. This step to transparency will allow the people of our state to judge the panels of three chosen for submission to the governor against all of those who are considered. It is a significant and good change.
Any change that moves the Missouri plan closer to politics, special interests, or money is a change in the wrong direction.
I would like to end my speech with this thought. In my time on the Court, I have seen how hard your life is here in the legislature. I understand the pressures you bear to keep your base, the pressures from special interest groups, the pressures to raise thousands of dollars to fund your campaigns, or to move up in leadership.
I know what I have spoken about today is too complicated for 10-second sound bites, and I don’t have hundreds of thousands of dollars to donate to your campaign committees. But let me tell you this. I did not come here to waste your time or mine. I did not come here to give a meaningless speech. From time to time I run into old senators and representatives. They like to visit about what they did in office. They never talk about the money they raised or when they buckled to political pressures. What they talk about are the good things that they did; the things they were proud of.
There will be a day when your time of service comes to an end, too. When it does and you go home, you all will want to be proud of what you have done.
Savings millions of dollars, saving lives, saving families, and making Missouri a safer and better place, is something you can go home and be proud of.