CONTACT PERSON: JUDY BOUDREAUX
| APRIL 23, 2018
FOR IMMEDIATE RELEASE
2018 STATE OF THE JUDICIARY ADDRESS TO THE
JOINT SESSION OF THE LOUISIANA LEGISLATURE BY
CHIEF JUSTICE BERNETTE JOSHUA JOHNSON
SUPREME COURT OF LOUISIANA
MONDAY, APRIL 23, 2018, 2:00 P.M.
MR. PRESIDENT, MR. SPEAKER, MEMBERS OF THE SENATE AND THE HOUSE OF REPRESENTATIVES, COLLEAGUES, DISTINGUISHED GUESTS, LADIES AND GENTLEMEN:
Good afternoon. Thank you for the invitation to address you on the State of the Judiciary. It is an honor and a privilege to visit with you this afternoon. I know you have much on your legislative agenda, and I appreciate your taking the time to be here today.
Before I begin, let me first introduce my colleagues who are with me this afternoon – Justice John Weimer from Thibodaux; Justice Greg Guidry from Jefferson and St. Tammany; Justice Marcus Clark from Monroe; Justice Jefferson Hughes from Denham Springs; Justice Scott Crichton from Shreveport; and our newest Justice, Justice Jimmy Genovese from Opelousas. Justice Genovese served on the Third Circuit Court of Appeal, and was elected to fill the vacancy on the Supreme Court that arose upon the retirement of Justice Jeannette Knoll.
Our two branches of government have a history of mutual respect and cooperation, and I have worked hard as Chief Justice to build upon that relationship. I am glad to continue the tradition of these visits by our Court to your Chambers every two years or so for the State of the Judiciary address, and I thank you for welcoming us here this afternoon. Thank you, as well, for the courtesy that you show our Justices, our state judges, and our staff every year upon presentation of the judicial branch budget request, and other legislation that impacts the Judiciary.
The state and federal constitutions divide our government into three equal and independent branches. Our two branches have long enjoyed a mutual respect founded upon a recognition that we are equals under the law and that each of us performs a constitutionally defined role that must be preserved. Although judges in our state are elected by a majority of the voters, their ultimate allegiance is owed to the Louisiana Constitution and to the rule of law. That duty often requires us to protect the rights of those in the minority, the poor, and the politically unpopular. It is the duty of each judge in this state to apply the law without fear or favor. A judge cannot be partisan, despite which way political winds may be blowing. An independent judiciary is a hallmark of our democracy, and we should take whatever steps are necessary to respect and preserve this independence.
I am pleased to provide each of you today with copies of our 2017 Annual Report, which includes basic information on our state Judiciary, as well as a statistical compilation of case filings at all levels of court. It also includes updates and discussions of court activities and related entities, such as the Office of the Judicial Administrator, the Louisiana Law Library, the Judicial College, the Judiciary Commission of Louisiana, the Louisiana Attorney Disciplinary Board, and the Committee on Bar Admissions. The Annual Report is also available online at the Supreme Court website.
I would like to draw your attention to the information that is included in our Annual Report on the Judiciary budget. This budget information, along with copies of this fiscal year’s Judiciary appropriations bill and legislative audit, can be found online on our court’s website.
As you may know, our budget request for this upcoming fiscal year, FY 2018-2019, has been filed as HB698. We have asked for $180 million – an amount we believe necessary to ensure not only an independent Judiciary, but an effective one. That budget will fund the operations of the Louisiana Supreme Court and the five courts of appeal, and also includes salaries and retirement benefits for all state judges. The budget also includes some state funding for lower courts, and funding for operations of programs that you have asked the Supreme Court to administer, such as oversight of state drug courts.
I will note that the Judiciary appropriations bill does not include funding for the entire state judicial system. The Louisiana court system is not a unified system under the sole budgetary authority of my Court. Rather, the lower courts – district, city, parish, and municipal – are funded through multiple sources, including a limited appropriation by the state legislature; funds from local governing bodies; self-generated revenues from fines, fees and court costs; and federal grants.
We are cognizant of today’s budgetary challenges and competing priorities. And let me stress to you that we do not deem ourselves immune from the financial difficulties facing our state. Our budget was not created in a vacuum or without regard for the needs of other government entities. Before being presented to you, it was reviewed and approved by the Judicial Budgetary Control Board. It also reflects years of belt-tightening. For several years now, we have delayed filling personnel vacancies, left needed positions vacant, tried to renegotiate contracts with vendors, and restricted use of outside consultants. We have also actively sought and obtained significant federal funding to assist our courts. We have been good stewards of the public fisc, effectively and efficiently operating a co-equal branch of government with state appropriations totaling less than one percent (1%) of the total State budget.
Under our tripartite constitutional system of government, you, the Legislature, are charged with funding all three co-equal branches. Adequate funding of the judicial branch of government is your legislative responsibility, and is critical to ensuring an independent Judiciary. It enables the state Judiciary to fulfill its constitutionally mandated duties to apply the laws you have written, to resolve private disputes, to protect fundamental rights, to punish wrongdoing, and to provide oversight to the bench and bar. It also allows us to continue to work for reforms and improvements in the area of judicial administration. We owe it to our citizens to provide them with a Judiciary armed with the financial resources necessary to ensure access to justice for all.
Keep in mind that the majority of the monies you appropriate to the state Judiciary cover statutorily mandated expenses like judicial salaries and benefits, such as retirement and insurance costs. The discretionary portion of our budget is allocated to programs such as Drug Court, the Louisiana Protective Order Registry (LPOR), Court Appointed Special Advocates (CASA) and Families in Need of Services (FINS). These programs yield monetary savings for the state by reducing incarceration rates, recidivism, and the need for other social programs.
Let me highlight just one of these programs for you. Our Drug Court program has proven to be an effective strategy for reducing crime and recidivism. Nationally, research has shown significant reductions in recidivism for participants in drug courts compared to those sentenced to conventional justice interventions, such as incarceration. That has proven true for the nearly 15,000 individuals who have graduated from Louisiana drug courts. Our programs have reduced three-year recidivism rates from upwards of two-thirds, to just over 10 percent. Perhaps more importantly, drug court participants are becoming productive citizens, thanks to programs that help them earn their GEDs and find housing. They are also becoming better parents and breaking the generational cycle of poverty.
Drug Courts also save money. For each dollar invested in drug courts, communities receive an average of $3.36 in benefits such as avoided justice system costs. For example, drug intervention programs reduce the number of infant children born addicted to narcotics – children who would otherwise become the financial responsibility of the state. It is estimated that the state spends approximately $250,000 caring for a single drug-addicted infant during the first few years of his or her life. In 2017, 57 drug-free babies were born to drug court participants for an estimated cost savings of $14,250,000 to the State of Louisiana. This is a smart investment.
Our Drug Court judges preside over drug courts in addition to their regular dockets with no additional compensation. They are supported by our Supreme Court Drug Court Office, which currently administers 49 drug courts in 44 parishes. Hopefully, you had the opportunity to visit with some of our Drug Court Office staff during their recent visit to the Capitol. We also invite you to participate in a Drug Court “ridealong” or visit a Drug Court to see for yourself the good it accomplishes and the lives it changes.
Drug Court is just one type of Specialty Court that we operate in Louisiana, but it is the only one that receives state funding at this time. Because they have witnessed first-hand the successes of our problem-solving or Specialty courts, many of our state judges volunteer their time to handle dockets in Re-entry Courts, Veterans Courts, Sobriety Courts, Behavioral Heath Courts, Domestic Violence Courts, and Family Preservation Courts. These additional Specialty Courts are up and running because our judges have sought federal grants and funding from businesses and non-profit corporations. Again, they receive no state funding. Some of our Specialty Court judges are experimenting with cutting edge technologies in an effort to make the best use of limited resources. Our Specialty Court judges have been heard to say while these Specialty Courts create a substantial amount of extra work, managing them is the best part of their job, as they are able to watch participants’ lives change literally before their eyes.
One of the most successful and promising Specialty Courts is Re-entry Court, which is a partnership between the Department of Corrections and the state Judiciary. Participating defendants spend a minimum of two years of their incarceration learning a marketable trade, such as auto-mechanics, HVAC, culinary skills, and welding. While incarcerated, the participants are partnered with a “lifer” mentor who lives with them. The mentees also receive appropriate substance abuse and/or mental health treatment while incarcerated. Once released, the participants are monitored by the Re-entry Court judge and are provided needed treatment and case management services. Upon graduation, participants “re-enter” society armed with a marketable trade and the skills to be productive citizens.
There is real potential for expansion of Reentry Courts; however, expansion has been hindered by the lack of funding, at both the DOC and local court levels. It is my hope that some of the savings realized from our Justice Reinvestment efforts might be reinvested in some of these Re-entry or other Specialty Courts.
Because we also recognize the success of these Specialty Courts, and because we wish to support our Specialty Court judges, we have expanded the Supreme Court Drug Court office to provide support for all of our state Specialty Courts. Our goal is to bring all Specialty Courts under the umbrella of the Supreme Court and give them all the same oversight and services that we currently provide to Drug Courts. This new configuration will allow us to better measure outcomes and savings in all areas of government.
As I mentioned, the Judiciary appropriations bill does not include funding for the entire state judicial system. In fact, the majority of funding of our lower courts comes from two sources: local governing bodies and self-generated revenues from fines, fees and court costs. Let me say a few words about court costs.
Funding a court system through the use of court costs paid by users of the justice systems presents many challenges that we as a state government need to confront. For starters, there is no central oversight of the assessment or collections of these court costs, which are authorized in a piecemeal fashion through legislation and local ordinances – often without consideration of existing court costs. Further, despite our best efforts to date, there is no comprehensive listing of all court costs that are applicable statewide. There is also no accounting available of how much money is collected annually in court costs, fines and fees, or what percentage of court operations are funded by court costs. When new court costs are proposed, there is no legal mechanism for comprehensively analyzing the request. We are not currently examining the extent to which proposed costs are genuinely needed, the effect those costs may add to the expense of litigation, or the potential effects on a citizen’s access to justice. That has to change.
An additional area where more information is arguably needed about court costs is pretrial diversion programs operated by District Attorneys’ offices statewide which “divert” cases out of the criminal justice system. Concern has been expressed about the potential effect these pretrial diversion programs may have on the judicial system, including the courts, indigent defenders, sheriffs, and other stakeholders. Based on legislation that was introduced this session, I know several of you share this concern. On behalf of the Louisiana Judicial Council, I recently reached out to our District Attorneys to request procedural and budgetary information on their diversion programs. I look forward to the Council’s review of this information.
Our court is taking steps to address these issues. HB493, which is currently pending before this body, would restore to the Judicial Council greater authority to evaluate attempts to raise court costs and fees. We are also one of five states to secure grant funding from the United States Department of Justice “Price of Justice” grant program to evaluate the current system of assessing, collecting, and distributing court costs and fees in Louisiana. We have formed a Grant Advisory Committee whose mission is to develop recommendations for policy and action to achieve a more transparent, accountable, and fair system of assessing, collecting, and distributing legal financial obligations. That committee held its first meeting last week. Thank you to Representatives Katrina Jackson and Gary Carter, and Representative-elect Royce Duplessis, formerly my Special Counsel, for agreeing to serve on this Advisory Committee.
This grant from the U.S. Department of Justice is just one example of grant monies helping to fund the work of the Judiciary. Through the Supreme Court CMIS office, we distributed nearly $3 million in federal grants to district and city courts to enhance security in data collection, to improve the completeness, accuracy and timeliness of disposition reporting, and to enhance overall data quality. We also helped secure federal grant funds under the Federal Motor Carrier Act for eight city courts and twelve district courts for replacement or enhancement of case management systems, and to improve reporting on traffic and DWI dispositions to the Louisiana Office of Motor Vehicles.
Louisiana is among the minority of states in our nation with a non-unified court system. Rather than using state funds to fully fund our Judiciary, we push much of that obligation off onto local governmental entities. Those, in turn, pass much of that unfunded mandate onto civil litigants and criminal defendants in the form of court costs, fees, and fines. These user fees help pay for courthouses and salaries of court clerks, as well as district attorneys, sheriffs, and public defenders.
I believe it is time for us in Louisiana to begin thinking about the toll that this type of funding mechanism takes on our justice system. Is it financially prudent and morally responsible to fund a co-equal branch of government on the backs of a few who are often the poorest and least fortunate members of our society?
As many of you know, there are a number of federal lawsuits currently pending that challenge the way our state funds its criminal-justice system. Because these cases are still in litigation, it would be inappropriate for me to comment upon them. But it also would be naïve of us not to see that we are approaching a day of reckoning. It is unreasonable to think we can cut funding to courts and then expect mostly indigent criminal defendants to take up the slack. We simply cannot continue locking up indigents because they are too poor to pay fines for crimes often committed because of systemic poverty. Either we reform the system ourselves, or we risk having it reformed on the pain of a federal judgment or consent decree.
Last year, the Louisiana Justice Reinvestment Task Force examined Louisiana’s hundreds of criminal fees, which are used to cover costs of court services and various other parts of law enforcement, prosecution, and supervision. I was privileged to serve as a member of this Task Force, and I fully support its recommendations. Among its findings, the Task Force learned that fines and fees are often uncollected and uncollectable: in 2015, the average felony probationer still owed a third of the restitution amount (when ordered) and half of their other costs and fees at the end of their supervision terms. Further, the punishments used to address debts, including suspended licenses and arrest warrants, arguably interfere with criminal defendants’ ability to earn money to pay their debts and create further barriers to their long-term success and stability in the community.
Let us be candid: Innocence, though presumed by our system, is currently bad for our bottom line. God forbid that any of us should ever find ourselves in a situation where we stand accused of a crime we did not commit and cannot afford the cost of our defense. This is, however, the reality for thousands in our state. Would you have faith in the system if you knew that every single actor in the criminal justice system – including the judge and your court-appointed lawyer – relied upon a steady stream of guilty pleas and verdicts to fund their offices? Would you doubt your ability to get justice? Would you question your lawyer’s motivation for recommending a plea?
I want to be clear that I do not believe a single DA or judge or public defender would ever compromise justice in the name of securing funding. These individuals are some of the most dedicated public servants you will ever find. I do not question their personal integrity for one minute. Even so, you’ve got to concede that there is something about the system that does not feel right. When you talk to lawyers outside our state, they are often surprised at the way that Louisiana funds its courts. I would submit that the mere appearance of an unfair system undermines our moral standing and authority.
Some of you may believe that there is nothing wrong with the way we fund our courts. You may see it as a local responsibility. You may feel little sympathy for criminal defendants. Or you may think it is fair and reasonable to ask those who use our justice system to pay their share. I understand these sentiments and agree with you to a point. Criminals should face consequences for misconduct and civil litigants should help defray the cost of the system they use. But there also comes a point when the price of justice becomes so high that the courthouse doors are closed to litigants. If that happens, we may have a constitutional problem.
Because we do not fund our courts in a centralized way, there are wide disparities among jurisdictions in terms of fees assessed and services offered. Changing one’s name should not be more expensive in New Orleans than in Natchitoches. A petition for interdiction should not cost four times as much in Jefferson Parish ($1,000) as in Ouachita Parish ($250). The fees assessed to criminal defendants for the same crime in different jurisdictions should not depend upon whether monies are needed to replace a dilapidated courthouse. One’s access to rehabilitative programs should not hinge upon whether one happened to commit his crime in a wealthy parish.
One of the central benefits of statewide government is the ability to pool resources and to fund services that individual jurisdictions could not furnish alone. My tax dollars have undoubtedly been used to build bridges I will never cross, schools my children will never attend, and hospitals where I will never receive care. But that does not mean I, as a citizen of Louisiana, did not benefit from these things. We all benefit from the common good.
A rising tide lifts all boats. Similarly, a fair and just court system benefits us all. Rehabilitating criminals into productive, taxpaying members of society is good for everyone. It makes our streets and schools safer. It builds our tax base. It creates a climate where business thrive.
Although the die is already cast in this legislative session, I call upon the legislature to examine and to seriously consider funding the entire Judiciary through state appropriation. Other jurisdictions – California, New York, Delaware, Kentucky – successfully fund the entirety of their judicial system, from the salary of the Supreme Court to the cost of a local courthouse. These jurisdictions offer a model worthy of study.
Creating a unified court system will move us from a system in which judges must constantly petition their local government entity for sufficient funding. It also will help eliminate the financial disparities that exist among the various judicial districts.
Unifying our court system would create long-term efficiencies that will save taxpayers money in the long run. Instead of 42 district courts operating on 42 different systems, our state would have a single system integrated with the five appeal courts and with the Supreme Court. Instead of 42 different sets of fees and costs, we could have a single, uniform standard applied across the state. Not only would this promote fairness and predictability, it would eliminate the constant flow of legislation increasing court costs in particular jurisdictions.
Funding the Judiciary entirely and in a unified manner would also eliminate the perceived injustice of a user-pay system. If judges and public defenders receive a fixed and predictable annual budget set by the Legislature and the Supreme Court – as opposed to a variable funding stream that depends on the collection of court fines and fees – our criminal justice will be fair to all.
Of course, I am not immune to the irony of asking you to expand your financial commitment to the Judiciary at the same time that drastic cuts to our budget are being considered. I am also certain there are arguments in favor of retaining our current system of funding the courts. However, I submit to you that there are serious problems and inequities in our present funding scheme, problems and inequities that harm our citizens, and I ask you to seriously consider an alternative system. I suggest simply that your investment in the Judiciary and in a just funding system is a good one. When the bills that you craft today leave this chamber and enter the books as laws, it is our branch that applies, interprets, and enforces them. But we cannot do that without your help. You’ve given us good laws. We simply ask that you give a co-equal branch of government sufficient resources to apply your will fully and fairly for all citizens of Louisiana.
Before I close, let me congratulate you on the legislation you passed last year based on the recommendations of the Justice Reinvestment Task Force. I was honored to serve as a member of the Task Force, and was pleased to see this enactment of the once-in-a-generation package of reforms to our criminal justice system. These reforms reflect bipartisan recognition that oftentimes incarceration is a poor use of public funds and does not provide a long-term solution to public safety.
As I have said repeatedly, Louisiana jails more people, per capita, than every other state in the nation and every other country in the world. And that has to change. We cannot afford the financial burden to taxpayers, who spend $700 million annually on corrections. And we cannot afford the human toll that mass-incarceration takes on our communities, where families are pushed into poverty and children are forced into foster care.
With this ambitious package, Louisiana is projected to reduce the prison population by 10% and save $262 million over the next decade. Seventy percent of these savings – an estimated $184 million – will be reinvested into programs and policies proven to reduce recidivism and support victims of crime. It is also projected to reduce the community supervision population by 12%, making caseload sizes more manageable for probation and parole officers. I am also encouraged to learn that sometime in 2018, based on these reforms, Louisiana will no longer lead the list of states with the highest incarceration rate. We will still be second on the list, but at least we are making progress.
We cannot and must not roll back these reforms until they have had an opportunity to take root and make meaningful change.
I began my remarks commenting on the history of the cooperation and collaboration between our two branches of government. The Court pledges to continue that cooperation, keep open lines of communication, and maintain mutual respect. I ask you to do the same.
Let me again say what an honor and privilege it is to appear before you today. On behalf of the state Judiciary, thank you President Alario, Speaker Barras, and all of you, the dedicated members of our state Legislature, for opening your chamber to us today, for your attention to my remarks, and for your unfailing devotion to the people of Louisiana.
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