November 2012 • Volume 100 • Number 11 • Page 587
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The High Price of Low Funding
The budget problems in Illinois can never be fixed by slashing the already modest court budget, Illinois' chief justice says. While courts must be frugal, the other branches of government have a responsibility to fund our justice system adequately.
Most citizens would be astonished to learn that the separate but "equal" constitutional branch of the courts survives on one half of one percent of the entire state budget. Yet over the past few years, the other two branches have viewed even that portion as too much and have continued to cut judicial branch funding year after year.
Certainly, as stewards of public funds, our courts must be frugal. And, just as certainly, there are ways we can save money in the judicial branch. But, to put it bluntly, the budget problems in Illinois can never be fixed by the continuous slashing of our court budget. We plead with our two coequal branches to provide essential funding for our court system.
On June 30 of this year, Governor Quinn signed the 2013 appropriation for the Illinois Supreme Court. It is $61 million less than the supreme court's request, $6.5 million less than its 2012 appropriation, and over $10 million less than its 2009 appropriation. While the court is using stopgap measures to cover this fiscal year's deficiency, a long-term solution is imperative.
Continuing to impose substantial cuts may well wreak havoc with the Illinois courts' ability to conduct business. If left unresolved, budgetary shortfalls could threaten the justice system as a whole, as has occurred in many other states, where courthouses were simply shuttered and criminal defendants were sometimes released due to speedy-trial violations. The experience of other states, discussed below, should serve as a warning to everyone.
Equally alarming, the specific nature of the budget cuts disproportionately affects probationary services. Diminished probation funding leads, in turn, to a rise in many costs, including those related to inmate housing, police services, and recidivism. Thus, the state's failure to fund court operations adequately places the administration of justice at risk and also costs the state more money in the long run.
Illinois judicial funding and probation's vital role
The Illinois judicial branch is funded jointly by the state and the counties. The state appropriates funds to the supreme court for three main functions: (1) judicial salaries; (2) supreme and appellate court staff and operations, and a portion of trial court administration; and (3) reimbursement to the counties for probation salaries. Judicial salaries take up over 50 percent of the state appropriation, and another roughly 20 percent is for supreme and appellate court staff, operations, and building costs. The remaining 30 percent is for probation reimbursement. Trial court staffs, operations, and courthouse facilities are funded almost solely by the counties.
Since 2009, probation funding has been slashed by over $17 million, losing over $28 million since 2002, and requiring probation departments to terminate approximately 350 staff positions.
Probation officers are the unsung heroes of the judicial branch. Probation officers assist the court by providing vital pretrial services, including compiling investigatory information used to decide whether to release a defendant on bond and supervising defendants released pending trial. They monitor offenders for compliance with court-ordered conditions, including treatment, public community service, victim restitution, and a variety of other restrictions.
Probation officers also prepare pre-sentencing reports used by judges during criminal sentencing hearings. A full pre-sentence investigation provides the judge with a comprehensive profile of the offender, identifies the risk of reoffending, and offers recommendations on services and intervention for reducing that risk - information critical to identifying whether probation or incarceration is appropriate.
Due to budget reductions, monitoring offenders and providing judges with full pre-sentence investigations is increasingly difficult for overworked and understaffed probation departments. Probation departments are often forced to provide courts with partial pre-sentence investigations that include demographic information and criminal histories on offenders, but lack the critical comprehensive profile and recommendations. The reductions also mean some offenders on probation receive little or no supervision. At current funding levels, probation departments can provide supervision only to high and moderate risk offenders; low risk offenders are not monitored. And the label "low risk" does not mean "no risk," as low risk offenders have an 18 percent recidivism rate.
In an effort to fund probation at close to the full funding level authorized by statute, this fiscal year the court requested $95,836,500 for probation reimbursement. The legislature appropriated $47,140,000, a reduction of nearly 15 percent from last year.
To prevent layoffs and keep existing funding levels, the court must transfer over $8 million from the Mandatory Arbitration Fund, but that fund, too, has a limited pool of money.1 Plainly stated, the Mandatory Arbitration Fund cannot serve as an "organ donor" for the "critical care probation patient." Nonetheless, the dire consequences resulting from further reductions in probation funding require us to transfer money from that fund as a drastic stopgap measure. At best, this is a one-time solution.
The supreme court reimburses county probation departments for employees' salaries. As reimbursement levels have decreased, counties have been forced to decide whether to fund the difference or lay off probation staff.
In 2005, state probation reimbursement provided around 80 percent of all Illinois probation funding. That figure has now dropped to less than 50 percent. If many counties had not backfilled the funding gap, probation departments would be dealing with an even deeper budget hole and even less staff.
This approach to overcoming the probation funding gap, however, takes money from other vital courthouse functions. Besides providing direct funding for probation departments, Illinois counties fund the trial courthouses, most trial court staff, clerks' staff, and court operations. Along with all levels of government, counties have had increasing burdens placed on their budgets. Those burdens have now reached the courthouse steps.
Last year, for instance, the Cook County Board voted to impose furlough days on county offices. As part of that cost-saving effort, the board requested that the Cook County Circuit Court close courthouses for four furlough days. The supreme court responded that it could not approve a "shutdown" of courthouses. The courthouses remained open, but mandatory furlough days were imposed on their employees. Consequently, the completion of work was disrupted throughout the year, resulting in delays and backlogs that slowed down the administration of justice.
Cook County is not alone. Madison, Champaign, Sangamon, DuPage, Ogle, and St. Clair Counties have all ordered furlough days or layoffs over the last few years as well.
While the Illinois judicial branch has suffered significant cuts, we remain better off than courts in many other states - for now. For instance, in March 2009, the Columbus Dispatch reported that the municipal court in Morrow County, Ohio, was no longer going to accept new case filings because it could not afford paper. A local judge said the court had enough paper to handle pending cases but not new ones, and the county said no funds were available to pay for supplies.
In California, the Administrative Office of Courts eliminated 190 positions last year, requiring an 18 percent reduction in staff. Furthermore, the San Diego Superior Court faces a $14 million budget shortfall and expects to lay off 250 workers in the next two years and to close 40 courtrooms.2 Likewise, the Los Angeles Superior Court is facing layoffs, salary reductions, and transfers, affecting over 431 employees and 56 courtrooms.3
Last year, the New York legislature peeled away $170 million from the court's $2 billion budget, forcing layoffs of 350 court employees and 75 administrative office employees, a reduction in courthouse hours, and a decrease in the number of jurors called to duty, among other cost-saving measures.4 On top of those losses, a hiring freeze was imposed the previous year on 1,550 positions left vacant after employees took an early retirement package.5
In July 2012, Kentucky announced its judicial branch would shut down for three days in 2012. During those furlough days, the Kentucky Supreme Court plans to suspend rules requiring pretrial officers to interview defendants within 12 hours after incarceration; deputy clerks will not be available to process bonds and no release orders will be issued; and trials and other proceedings scheduled for those days will be rescheduled.6 The furlough days were required after the Kentucky legislature reduced the judicial branch budget by over $25 million for fiscal year 2013. Since 2008, Kentucky's judicial branch has lost 282 employees statewide.
Perhaps the most alarming result of diminished state court budgets comes from Minnesota. Last year, Chief Justice Lorie Gildea warned that the state appellate court had overturned three convictions for violent crimes due to speedy trial violations caused by court delays, backlogs, and staffing vacancies.7 As Chief Justice Gildea said, "It's not like these defendants are going to go back and have a trial again - they're free…they (the public) should be outraged."8
Unfortunately, these states are not the exception - they are the rule. According to data from the National Center of State Courts, 27 states recently increased fines and fees; 23 reduced operating hours; nine delayed or reduced jury trials; 31 faced higher case backlogs; and 16, including Illinois, have seen an increase in the time it takes to disposition. In addition, securing adequate funding for court staff is a widespread problem: 44 states have salary freezes; 13 states have reduced salaries; and 34 have laid off staff.
Even though Illinois has not yet seen all of those negative effects, the funding cuts to our judicial branch are real and significant. We are at a point where further cuts - from either the state or the counties - will result in severe interruptions in court services.
For Illinois to avoid a similar court-funding crisis, the judicial branch must work with the legislature and the counties to reduce costs. The supreme court has already introduced a number of cost-saving measures.
Digital information technology. Over the past two years, the court has used the internet and digital technology to reduce costs by eliminating the printing of the official Illinois court opinions and Illinois Pattern Jury Instructions.
By moving the official body of Illinois court opinions to the supreme court website, the court has realized substantial savings. Illinois Supreme and Appellate Court opinions have been available on the court's website since 1996. In July 2011, the court, however, changed the citation system for Illinois courts, allowing citations to online opinions, rather than pages in a printed volume.
This change eliminated the need to purchase new books repeatedly. Without the expense of costly bound volumes, the court will save more than half a million dollars over the next few years. Additional cost savings have been generated by the publication of the Illinois Pattern Jury Instructions on the court's website. The online instructions trim costs by removing the need to purchase jury instruction books and periodic updates.
But this is only the beginning of the enormous cost savings e-business offers the court system. Digital technology also allows the judiciary to save money when transferring appellate records. Illinois Supreme Court pilot projects are already underway in the second, third, fourth, and fifth appellate district courts to test the electronic transmissions of records on appeal.
In these pilots, the circuit clerk transfers an electronic copy of the record to the appellate clerk, who then makes electronic copies available to the parties, judges, and law clerks. This approach saves both the high costs of shipping heavy materials and staff time compiling, shipping, and reviewing each page of the record upon return to ensure its completeness.
The greatest cost savings from the implementation of technological advances, however, will come from e-filing and the use of the electronic record as the court's official record. Soon, the supreme court will issue standards and principles for e-business, enabling the court to manage documents without the necessity of paper.
Paper documents are expensive. For instance, every year, the DuPage County Circuit Clerk spends $80,000 on file jackets alone to store paper documents. In 2011, Cook County spent almost $16 million on circuit court document storage. Substantial savings lie ahead by moving court documents from paper to electronic document filing and storage. Instead of relying on storerooms and warehouses full of paper documents, courts can store records on lower cost servers and small hard drives. As we see the fruits of these efforts and others like them, we will continue using new technological advances to ensure our judicial system remains a responsible recipient of Illinois tax dollars.
Investing in probation. Surprisingly, another effective way to save the state millions of dollars each year is to increase probation funding. A simple example illustrates how increased probation funding can actually save money. At the end of 2011, almost 5,000 Class 4 felons were incarcerated in Illinois' prisons. Many of those offenders are serving sentences for non-violent, drug possession crimes. At a time when state prisons are significantly overpopulated, the state spends an average of $22,043 per inmate annually to incarcerate those individuals.
Non-violent, Class 4 felons are generally eligible for probation instead of prison. The average annual cost to the state to supervise a Class 4 felon on probation is only $3,243, a savings of $18,800 per inmate.
Of course, not all eligible offenders should be placed on probation simply to save money. Clearly, the public must be protected from those who present a risk. But if 1,000 non-violent-possession-only Class 4 offenders were on probation, rather than sentenced to prison terms, the state would save $18 million per year.
In sum, the costs of our court system may be reduced by adequately funding probation and e-business. Undoubtedly, we can also uncover additional ways to save money. That is why the Supreme Court looks forward to the work of the new ISBA Special Committee on Fair and Impartial Courts announced by ISBA President John Thies.
Preventing a crisis in Illinois
While the bench and bar must do their part to be frugal with taxpayers' money, our courts will never be able to operate on the cheap. Nor should we. Courts provide an essential function of government. When the courts' work is delayed, or courthouses are closed, everyone is affected - whether it's the crime victim awaiting justice, the injured person trying to recover compensation, or the business entity seeking enforcement of contracts or property rights. Justice delayed is tantamount to justice denied.
The public must know the pressures their court system is facing, as well as the dangers posed by those pressures. That is where the organized bar becomes invaluable. As members of the legal community, it is imperative that we inform the public of the looming court funding crisis. We must remind everyone that the administration of justice is not a luxury to be cut in hard times but a core function of our democracy.
We recognize the perplexing budgetary forces facing the executive and legislative branches. But we plead with them to remember the courts are not an agency or department providing a governmental service, but an equal, constitutional branch conducting a vital function of our government. The funding of our courts is not a partisan issue, nor policy to be debated, but a bedrock necessity that supports the foundational underpinning of our state's constitutional democracy.
Illinois Supreme Court Chief Justice Thomas L. Kilbride is from Rock Island. He thanks his colleagues on the Illinois Supreme Court, Administrative Office of the Illinois Courts Director Michael J. Tardy, Judge John C. Anderson, Adam Vaught, Bonnie Kerwin Sloat, and Matt Brune for their assistance.
ISBA Committee on Fair and Impartial Courts
The Illinois State Bar Association created the Special Committee on Fair and Impartial Courts to identify and publicize threats to our court system due to lack of funding and to consider measures to address the problem. The Committee began its work by conducting a survey of chief circuit judges, in cooperation with the Conference of Chief Judges, to document where funding shortfalls exist across the state and how court services are affected. The Committee is also considering legislative remedies to address current and future funding challenges facing our courts.
The group is chaired by Hon. Patricia P. Golden of Kane County and Hon. James M. Wexstten of the Illinois Appellate Court, Fifth District. Other members are Alisa B. Arnoff of Chicago, Michael G. Bergmann of Chicago, Carl R. Draper of Springfield, Hon. Val Gunnarsson of Mt. Carroll, Randall A. Hack of Chicago, John J. Holevas of Rockford, DeKalb County Circuit Clerk Maureen A. Josh, University of Illinois law professor Andrew D. Leipold, Marcia M. Meis of the Administrative Office of the Illinois Courts, Hon. Rita M. Novak of the Circuit Court of Cook County, Meghan N. O'Brien of Chicago, Tara H. Ori of the Lake County State's Attorney's Office, Hon. Mary S. Schostok of the Illinois Appellate Court, Second District, Richard W. Zuckerman of Peoria, and ISBA Board of Governors member James F. McCluskey of Lisle.
- Section 5/2-1009A of the Code of Civil Procedure states the supreme court may spend mandatory arbitration funds for any purpose the court authorizes. 735 ILCS 5/2-1009A.
- More Than 250 Layoffs Expected at San Diego Superior Court, NBC 7 San Diego, June 20, 2012, http://www.nbcsandiego.com/news/local/More-Than-250-Layoffs-Expected-at-SD-Court-159769565.html
- Massive Los Angeles County court layoffs set to begin, FoxNews.com, June 15, 2012, http://www.foxnews.com/us/2012/06/15/massive-los-angeles-county-court-layoffs-set-to-begin/
- Cuts Could Stall Sluggish Courts at Every Turn, New York Times, May 15, 2011, http://www.nytimes.com/2011/05/16/nyregion/budget-cuts-for-new-york-courts-likely-to-mean-delays.html?_r=1&pagewanted=all
- NY courts order 367 layoffs in budget cuts, Crain's New York Business, May 18, 2011, http://www.crainsnewyork.com/article/20110518/FREE/110519863
- Courthouses to close, court services to shut down statewide Aug. 6, 2012, Kentucky.gov, July 27, 2012, http://migration.kentucky.gov/Newsroom/kycourts/072712LAH1.htm
- Minnesota Supreme Court Chief Justice Gildea warns against more budget cuts, HometownSource.com, M1rch 14, 2011, http://hometownsource.com/2011/03/14/minnesota-supreme-court-chief-justice-gildea-warns-against-more-budget-cuts/