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Many people say that states have a problem administering justice due to a large and growing number of cases that have yet to be tried.

Increasing funding to the state's courts system seems like an obvious solution, but what other policy tools do states have to clear their backlogs?

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  • Are you specifically interested in criminal cases, or civil ones, or are you interested in both?
    – user5526
    Jun 29 at 18:11
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    The law.com article is paywalled, so it's not much use.
    – user5526
    Jun 29 at 18:29
  • I am interested in both, but even answers that only address one side of them are helpful. Jun 29 at 18:54
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Depending on what sorts of cases the backlog is comprised of:

  1. Decriminalize certain offenses, with effect retroactively. This would be followed by a slew of motions to dismiss which a judge could sit down and just rubber-stamp away.
  2. Drop charges. Similarly, prosecutors have what's called 'prosecutorial discretion' which allows them to simply choose to not pursue a particular case. Prosecutors are agents of the state gov't (unless they're Federal, obviously).
  3. Create alternative pathways to resolve the conflicts at hand. For example, in the case of possession-of-illegal-drug offenses, offering defendants the option of attending substance abuse counseling as a way to either have their case mooted or continued without finding would have a similar effect to #1.
  4. Offer extremely favorable plea deals. The whole point of the 'plea bargain' is that, in exchange for pleading guilty - the defendant promises to not drag the court system through the expense of a trial, they receive a reduced sentence. (Ignoring for the moment the problematic ways in which these are used in practice.) Making a blanket offering of a plea deal is essentially another form #3, but warrants its own number here because it's technically not an alternative pathway it's an existing mechanism of the court system.

Basically what all of these have in common is to stop using the courts so much. Aside from add capacity to the courts (throw more money at it), reducing the demand for courtrooms is your only other option.

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  • This answer focuses entirely on the criminal system, but the OP didn't say whether they were specifically interested only in criminal courts. You seem to be focusing on drug offenses, but in state prisons, only 15% of inmates are there for drug crimes: washingtonpost.com/outlook/five-myths/five-myths-about-prisons/…
    – user5526
    Jun 29 at 18:19
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    Prosecutors are agents of the state gov't (unless they're Federal, obviously). No, this is wrong. In the United States, people vote for the DA in local elections. They are only nominally agents of the state. Typically people run for DA and for reelection based on promises to be tough on crime. The state government can't directly influence them on whether to prosecute a given case, whether to offer a plea bargain, etc.
    – user5526
    Jun 29 at 18:20
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    @BenCrowell the term "justice" is why I lean towards the criminal courts - they are also the side of the judiciary that is most amenable to legislative or executive policy interventions. As to your distinction between elected DAs and the 'State Government,' this seems like a distinction without a difference. Governments, particularly democracies, are rife with semi-independent actors. When you use the blanket term 'state government' you're either including them, or you're speaking with insufficient specificity. I can only work with what the querent gives me. Jun 29 at 18:29
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This is a problem that has been around for a long time. (One of the first articles I found by googling was from 1956.) It's also not specific to the US; many other countries have similar problems.

Some of the problem is very specific or localized. For example, immigration courts are chronically backlogged, and courts currently have a huge backlog because of covid.

But if we want to look at the main scope of the problem, about 57% of cases are civil, 37% criminal, and 6% juvenile. A very large percentage of the civil cases are small-money tort claims, especially personal injury suits. This suggests some kind of legal reform to cut down on the number of such cases that come to the courts. One method is to encourage mediation, but mediation tends to be unfair to individuals and favor businesses. States could pass laws that would force the loser to pay the winner's court costs, as in the UK, but this would deprive many small plaintiffs of any chance at justice, because of a fear of being financially wrecked.

Although criminal cases are only a fairly small slice of the pie, delays in criminal cases have serious consequences for defendants, who often languish in county jails. Although all 50 states have laws meant to implement the guarantee of a speedy trial as promised by the constitution, these laws generally apply only to felonies. Furthermore, the vast majority of criminal defendants are indigent, and public defenders aren't prepared to move forward that quickly with their cases, so that the laws can't be invoked.

Drug decriminalization might help, but it's hard to know. Only about 15% of inmates in state prisons are there for drug crimes. About 55% are there because they were convicted of a violent crime. Some of these acts of violence were probably committed as an outgrowth of drug prohibition, but we don't really know.

Ending mass incarceration would certainly help with the criminal backlog, but people's attitudes about how to do this are highly influenced by their political and social views. Michelle Alexander, in The New Jim Crow: Mass Incarceration in the Age of Colorblindness, says that historically, prison populations don't correlate with crime, they correlate with the building of prisons. It's possible that simply by shutting down prisons we could have a positive impact. But many conservatives dispute a lot of her claims. In general, the causes of crime and trends in crime are something that sociologists and criminologists have never been able to satisfactorily explain. There have been all kinds of theories, such as that legalizing abortion reduced crime rates, but I'm not convinced that they're strongly supported by evidence.

It would be nice if state governments could force DA's to be less aggressive in small-time drug cases. But in the United States, people vote for the DA in local elections. Typically people run for DA and for reelection based on promises to be tough on crime. The state government can't directly influence them on whether to prosecute a given case, whether to offer a plea bargain, etc.

In general, any attempt at reform will run into strong opposition from groups such as trial lawyers and prison guard unions, who have a vested interest in the status quo.

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    Re the risk of financial ruin in "States could pass laws that would force the loser to pay the winner's court costs". 1. UK courts do not award all the winner's cost; costs are "taxed" (assessed), and only reasonable costs awarded (average about 2/3). 2. it's possible in such systems to get insurance against cost (relatively novel in the UK), the cost of which increases as likelihood to win decreases. 3. the UK does not award costs in small claims (civil) which has a very streamlined process (e.g. can be done online, no lawyers). IMHO the UK has a far better model for small claims.
    – abligh
    Jun 30 at 5:57

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