Clark, Thomas C.

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University of Kentucky

Kentucky Law JournalVolume 60 | Issue 4 Article 51972Reflection on the Present Footing of JudicialAdministrationThomas C. ClarkSupreme Court of the United StatesFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Courts CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Symposium Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in KentuckyLaw Journal by an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationClark, Thomas C. (1972) "Reflection on the Present Footing of Judicial Administration," Kentucky Law Journal: Vol. 60 : Iss. 4 , Article5.Available at: https://uknowledge.uky.edu/klj/vol60/iss4/5Reflection on the Present Footingof Judicial AdministrationBy THOMAS C. CLAEK*PROCEDUBE IS VITA4-L TO EFFECTIVE JUSTICEOver a quarter century ago my Brother Frankfurter said inhis concurring opinion in Malinski v. New York: "This history ofAmerican freedom is, in no small measure, the history of pro-cedure."' And only last year Chief Justice Burger suggested thatthe problems were so "colossal and immediate" that prioritiesmust be assigned. His first priority was "to methods and ma-chinery, to procedure and techniques, to management and ad-ministration of judicial resources even over the much neededreexamination of substantive legal institutions that are out ofdate."2 After fifty years in the Law, I would say that procedureis the most important because it gives life to the Law. What goodis a law if it be a corpse? Obviously the rule of law must be firstdetermined before it can be applied; but in fact, problems ofenforcement are considered before the rule of decision is finallyformulated. If not, the substantive rule becomes bogged downin implementation and is discarded. We need only refer to the"noble experiment ' 3 in prohibition and our present predicamentin the enforcement of marijuana, prostitution and drunkennessstatutes.Indeed, Chief Justice Hughes taught us many years ago thatany principle of law-whether constitutional or statutory-wasbut a piece of parchment until implemented and enforced. Theproposal of the Kentucky Law Journal that a symposium onJudicial Administration and Law Reform be prepared gave me* Associate Justice of the Supreme Court (retired).'824 U.S. 401, 414 (1945).2 Address, National Conference on the Judiciary, 54 JUDicATURE 410, 411(1971).3 For an interesting discussion of our latter-day "noble experiments" withalcohol and drunkenness, see R. NI .miv, Two MILLoN UNNECESSAnY AP=S(1944).REFLECTION ON FOOTING OF JUDICIAL ADMINISTRATIONrenewed hope that the law reviews would take up the cudgelsof court modernization. Not that I was enthused over its titlewhich linked the word reform with that of law, with resultingconnotations of criminality. However, the list of distinguishedcontributors gave me complete assurance that the Journal was onthe right track. I am honored to be included among the con-tributors.UNENFORCEABLE AND HARASSING LAWS: THE ENEMIES OF JUSTICEMany years ago Mr. Justice Brandeis observed that "unen-forceable or harassing laws tend to make criminals."4 Historyconfirms this conclusion. Indeed we are making thousands ofcriminals out of otherwise law-abiding people through the en-forcement of the possession prohibition of the marijuana druglaws.5 Perhaps one reason for this is because so many peopledo not believe in these laws and are frequent violators. It isestimated that 20 million people smoke pot. There is an adagethat to forbid Americans "anything is to make us have a mindfor it."6 In a like manner, other laws are observed in the breach,i.e. prostitution, gambling, drunkenness. These consensual, victim-less crimes place the law in general disrepute. The roster ofindex crime indicates charges involving drunkenness alone runinto the millions each year. Still liquor flows freely and publicdrunkenness is not uncommon. The truth is that Americans havea habit of demanding the passage of prohibitory laws every timesome sporadic event disturbs their calm. As a consequence,volume upon volume of new or amended laws are added to ourstatutes at each legislative session. In the battle for new andamended laws, those suffering discontent seek comfort, thosewho are afraid crave courage, those who are sad seek happinessand the public foots the bill. In the end, all of us suffer disap-pointment.THE LIFE OF LAw is ITS IMPLEMENTATIONLittle thought is given to the fact that every law must beimplemented. To be effective, the court system must not only4 A. MASON, BRANDEIS, A FnEE MAN'S LIFE 90 (1946).5 21 U.S.C. §§ 844 etseq. (1970).6 M. MoNTAiGNE, ESSAYS II at 1580.KENTucK LAW JouRNALhave a sufficient number of judges, but the staff and supportingservices must be both adequate and efficient. This includes notonly the clerical assistance but the prosecutors, defenders, cus-todial services, probation officers, correction officials and paroleboards on the criminal side and the practicing Bar on the civilside. For instance, it serves no purpose to have a judge availableto hear a criminal case unless there are sufficient custodial officersto produce the defendant and guard him during the trial, suf-ficient prosecutors and defenders to prepare the case and try it,sufficient probation officers to handle those defendants who areconvicted but are probated or later paroled, and sufficient facilitiesto service those found guilty and sentenced to prison. In addition,parole boards must be adequately staffed to perform that function.Fiscal authorities do not appear to understand this sine qua non.For example, local governmental units in New York's First Depart-ment (Manhattan) have failed to furnish the additional support-ing staffs needed to handle the increased number of case dispo-sitions resulting from the additional time now devoted to trial-longer daily hours as well as night and Saturday sessions of court.This has completely stymied the proposed crash program of thecourt system requiring a criminal prosecution to be tried withina period not exceeding six months from the date of arrest. Like-wise the national effort to reduce the incidence of crime has beenfocused on the constabulary. The billion dollars expended lastyear for this purpose went to state and municipal police systemswith only a dribble to the courts and its supporting staffs. Theresult was that the increase in criminal case filings swamped thecourt system, the facilities of which had not been increased.Obviously this disparate treatment must be corrected if the pro-gram is to succeed. The court cannot proceed to trial unless thedefendant is brought to court by his custodians; unless theprosecutive and defense staffs are of sufficient size to prepare thecase and be ready for trial; unless the correction authorities havesufficient staff and facilities to receive the prisoner on sentence;and unless the parole and probation service is able to processthose who are not sentenced to prison or who are paroled there-from. When the entire system is not geared to meet the increasedcase load, it bogs down when the input of cases increases, as itmust, when the size of the constabulary is enlarged.[Vol. 601972] BEFLECrION ON FOOTm OF JuDiciAL ADMINISTRATION 831Tim COURTS AND THEm PROCEDURES MUST BE MODERNIZEDMoreover, the court structure needs modernizing in most ofour states. At present it has little or no central control. If thesystem were unified with control over it placed in the Chief Justiceor the highest court of the state, it would be much more efficient.The selection of judges should be removed from politics, theirtenure enlarged, and in most states, their compensation increased.Reliable and swift procedures for the discipline and removal ofjudges should also be provided. The court system would thenattract a higher caliber of judicial officers. The clerical staffs ofcourts must also be removed from politics and their selectionplaced in the bands of expert administrators appointed by theChief Justice or the highest court of the state.The rules of practice and procedure of the courts must berevised and improved. Continuing education for judges and theirstaffs must be conducted to the end that the most efficient tech-niques of trial possible be fashioned. For instance, the AmericanBar Association, after five years of study, adopted specificstandards of criminal justice in 1968. Although it directed itsCriminal Law Section to implement the Standards through adop-tion in the states, not a single state has done so. As Chairman ofthe Committee selected to perform the task by the Criminal LawSection, I must admit that we have made little actual progress.The reason is that the Committee is underfunded and under-staffed. Although months ago we sought funds for central staffing,none has been forthcoming, except through the usual fiscal sourcesof the Section, which are entirely insufficient. These Standards,I submit, are a complete answer to the crime wave, but they layon the shelf printed in separate pamphlets awaiting implementa-tion. While they have received wide circulation, have been theobject of study by many seminars of state and regional coverageand one national conference and are individually cited often bythe courts, both at trial and on the appellate level, they are notyet followed in practice. Indeed, less than ten states have beenable to finish a comparative study of their present law with theprovisions of the Standards because of a lack of funds. Naturally,such a study is necessary before local action can be taken. TheseStandards when adopted and followed, would streamline theprocesses of criminal justice, eliminate present delays, reduce theYEN=CKY LAW Jou.RNALpresent interminable postconviction proceedings and eliminatemany of the existing injustices in our criminal justice system. Theycould be implemented within a year or so if we had the estimated$500,000 required to do it. This would be 1/2000 of the billiondollars which congress has appropriated for criminal law enforce-ment this year, and 1/ of that (1/4000) of the projected figurefor fiscal 1973.TIRMENDOUS PRROGRESs HAS BEEN MADE oF LATEThis is not to say that judicial modernization and effectiverevision is not on the march. Indeed, it has come to "a doubletime" of late through the efforts of Chief Justice Burger who isour foremost catalyst for a more effective system of justice. Hehas sponsored, and there have been organized during the shortperiod that he has been the Chief Justice of the United States, atleast a half dozen national programs in judicial administration.These include a national academy for the training of court ad-ministrators; a criminal sentencing and corrections project; a studyof law school instruction on the practicability of using studentclinics in courts and administrative agencies; the creation of anational center for state courts; a study of the rising case load ofthe United States Supreme Court with a view to modernizingcase control, expedition and management; and the organization ofstate-federal-judicial councils composed of both state and federaljudges to resolve related problems. Practically every state hasorganized such a council on request of the Chief Justice.Prior to the Chief Justice's appointment, the Congress hadcreated the Federal Judicial Center, which conducts schools,seminars and exercises for federal judges and their staffs. It hasbeen of great assistance to the federal judiciary and has alsoorganized some joint projects with the state judiciary. The Na-tional Center for State Courts is a counterpart in the state system.The National College of the State Judiciary was organized somefive years ago as an outgrowth of the Joint Committee for EffectiveJustice, which was organized by the A.B.A. It conducts a schoolfor state judges, both of general and special jurisdiction, as wellas seminars on judicial administration at the state, and regionallevel. The North American Judges Association has an Academy[Vol. 601972] REFLECTION ON FooTmc OF JuDICiAL ADMINISTRATION 833for judges of limited jurisdiction which conducts classes eachsummer and holds educational meetings during the year.The Institute for Judicial Administration has annually con-ducted a school for appellate judges for almost a score of years.It also makes surveys of court systems, recommends and super-vises the adoption of improvements and maintains the most com-plete judicial administration library in the country.The American Judicature Society has rendered yeoman servicein the field of modernizing the state court structure, promotingprograms on the appointment, tenure, compensation, disciplineand removal of judges and organizing and conducting a nationalconference of state judicial disciplinary commissions. It has alsopublished for over a half century a prestigious magazine, JUDICA-Tun, which is a recognized leader in its field.The Council on Crime and Delinquency has been pioneer incorrections and its Council of Judges has become most influentialin the field. It conducts inquiries and research in this and relatedareas and publishes reports that have received national recogni-tion.The National Conference of Juvenile Judges has been busyin its area and has done excellent work in improving juvenilejustice. It has, through seminars, conducted continuing educationcourses for its members and has been successful in elevating thestandards of qualification for juvenile judges. This is a most im-portant field and since In re Gault7 has taken on new significance.SUMMING UPFor the sake of brevity, I have omitted some areas. For in-stance, a large percentage of the injustices of justice lie in thearea of courts of the first instance such as small claims, mis-demeanors, traffic control, landlord and tenant, summary seizures[statutory replevin, inkeepers' lien, landlord's levy, repossessionsetc.]8 We certainly need to give more attention to these problems,for the image of justice is bespattered by this neglect and at alevel where it receives its largest blotch. However, just as big7387 U.S. 1 (1967).8 For an interesting and instructive article on this subject see Brown, A Mean-ingful Opportunity To Be Heard, 46 ST. JoHN L. Rv. 25 (1971).KENTUCKY LAW JouBNALoaks from little acorns grow, the projects that I have mentionedwill soon encompass these dark areas and render assistance tothem. It was Archimedes who said: "Give me a place to standand I can move the earth." The judiciary is finally gaining afoothold that will result in the whole system being in on the marchto modernization.Our errors always float upon the surface and are subject toready criticism but the basic faults in the judicial system seldomsurface. We shall have to continue to dive below if we hope torecover the real pearls. Our chief problem is that people wrangleover the court system, blame it for the crime wave, curse thoseof us who sit upon the bench, fight against becoming involved inits improvement and gripe about no one doing anything about it.We need to change this attitude, especially on "becoming in-volved." We need to get every person involved because thecourts are the last bulwark of individual freedom. We muststrengthen its foundations.My father used to say that the road to hell was paved withgood intentions; that it was one of gradual downward slope, softunderfooting and without sudden turns, milestones or signposts.It may be that the courts were on that road, as some people say.But I tell you that situation is no more, for surelJust as Daniel Webster said that justice was the great interestof man on earth, the way to secure justice is through a good courtsystem supported by all men. The American people are entitledto no less and they should have more. If all of us, regardless ofour present place in life, are sufficiently determined, we can attainthat goal-Are you ready? If so, as Mr. Justice Holmes cried out."We will not falter, we will not fail. We will reach the earth-works if we live, and if we fail we will leave our spirit in thosewho follow, and they will not turn back. All is ready. Bugler,blow the charge."

Reflection on the Present Footing of Judicial Administration

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Reflection on the Present Footing of Judicial Administration

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