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Labaton Stephen - 29 dicembre 1989
New Tatics in the War on Drugs - Tilt Scales of Justice Off Balance

Throngs of Defendants Push Civil Litigants Aside

By Stephen Labaton

(The New York Times, December 28, 1989)

New laws and procedures intended to speed the courts' handling of criminal drug cases are now in many instances making matters worse. And both Federal and state judges say the nation's new drug policies are only going to compound the problem.

New laws that impose much harsher, automatic sentences are making defendants far less willing than they once were to plead guilty and much more willing to go through long trials. Combined with dramatic increases in the number of drug arrests in the first place, the sentencing laws are having the effect of skewing the court system and court calendars, the judges say.

Suspects Get Quick Trials

One major reason is that under the Speedy Trial Act, criminal defendants in Federal cases must be given a trial within 10 weeks of indictment. The rule has forced many jurisdictions to undertake a kind of courtroom triage, putting criminal cases ahead of civil disputes. This, in turn, is leading to unprecedented delays in Federal courts for civil litigants who are seeking to resolve business disputes, civil rights actions and personal-injury suits.

A number of Federal judges accuse the Bush Administration of compounding the problem by providing substantial money for more police enforcement and prosecutions but not pushing for new judgeships. The number of active Federal district judges has remained constant at 575 since Congress created dozens of new judgeships in 1984, and 33 vacancies among those positions are unfilled.

From Brooklyn to Los Angeles and from Boston to Houston, Federal and state judges and court administrators say court systems in the United States are on the verge of buckling.

The explosion of cases and the delays are particularly troubling in urban family-court cases, where mpore and more judges find themselves supervising the care of babies who are born to addicted mothers and who have become wards of the state because their parents have been jailed or are unable to care for them.

"We're becoming drug courts," said Edward R. Becker, a Federal appeals judge in Philadelphia and chairman of the criminal law and probation administration committee of the Judicial Conference, the Federal court's chief policy-making body. "The short of it is that we're getting an enormous volume of drug cases, and it's making it very difficult in many jurisdictions to hear civil cases."

Thomas C. Platt, chief Federal judge of the Eastern District of New York, said the delays are "going beyond the crisis stage."

"In the last two years, I've been only able to try one civil jury case, but have had to do five back-to-back criminal cases,"said Judge Platt. His district covering Brooklyn, Queens and Long Island, is particularly overburdened by drug cases because it includes La Guardia and Kennedy International Airports.

He said he had 20 civil cases on his docket ready for trial but had neither the time nor the resources to begin proceedings.

A "Systemic Congestion"

Congress in the last two sessions has authorized the Justice Department to expand the number of prosecutors by 50 percent. These 1,200 to 1,300 new prosecutors are being assigned primarily to drug and white-collar crime.

A recent report by the Judicial Conference, noted that the "systemic congestion of the courts' dockets" had been directly tied to the failure of both the Administration and Congress either to authorize more judgeships or to limit Federal court jurisdiction to larger cases. The President proposed an increase in spending for the Federal courts to $250 million in the fiscal year 1990, from $209 million the year before.

Congress went on to allocate $$$340 million, but the added funds were intended only to fill existing vacancies, pay for judicial salary increases and hire more court officers. There has been no recommendation for more judgeships, perhaps because of the many new ones created five years ago.

Narcotics prosecutions in the Federal courts have risen by 229 percent in the past decade, to the point where they now make up 44 percent of all criminal trials. And the number of Federal drug cases is expected to increase, perhaps by as much as 20 to 50 percent in the next two years, according to some estimates.

And the narcotics cases are increasing the delays in civil cases even though the number of new civil lawsuits in Federal courts has actually been declining - by 10 percent since 1986. The number of civil cases that have been on Federal dockets for more than three years has grown siiince 1986 by nearly a third, to 22,891 nationwide.

New Approach in Manhattan

In Manhattan, under a program known as Federal Day, more than 1,200 Federal indictments have been handed up since 1983 in cases developed by the local authorities. The program, in which during one random day a week all drug arrests are processed i Federal court, is intended both to help the overwhelmed state courts and to deter criminal activity by imposing the stiffer sentences permitted by Federal law.

In the last three years, about half a dozen Federal statutes have been adopted that strengthen the nation's drug laws. Among those with the strongest impact are the Federal sentencing guidelines, which give little latitude for judges and are generally more severe on narcotics cases than the old Federal laws were. Their aim is to provede more uniformity so that a defendant in one state will not get a different sentence from a similar defendant in another.

Judge Platt said the guidelines "provide no incentive to plead," since a guilty plea to drug charges in many instances would not significantly alter the prison sentence.

As a practical matter, by limiting judges' discretion over sentencing, the guidelines give far more power to prosecutors in determining punishment, since prosecutors decide what charges to put forward for grand jury consideration. But there are instances in which judges are finding ways around the new guidelines, much to the chagrin of prosecutors.

What the Jury Heard

Last month a Federal district judge in San Francisco told a jury about to deliberate in a crack case that if convicted, a defendant would have to be sentenced under the guidelines to life without parole because of his two previous convictions. Judges almost never tell a jury the sentence facing a defendant for fear that it could affect the verdict, but the judge, Robert H. Schnacke, himself a former prosecutor, said the jurors should know the penalties because he had no discretion.

The jury acquitteed the defendant David Hamilton, convicting him only of a gun-possession charge, for which he has not yet been sentenced. The United States Attorney in San Francisco, Joseph Russoniello, said the judge's action had been unprecedented and had virtually dictated the verdict. As a constitutional matter, prosecutors cannot appeal. The increased load has also overwhelmed the Federal Probation System, whose officers write pre-sentencing reports and supervise criminals released before completing jail terms. A recent report by the Judicial Conference said the sharp increase in drug cases had caused a "deterioration on supervision of probationers, parolees and supervised releasees, creating potential risks to the security of the public." The report said 859 new job positions should be added to the existing 3,878 just to cope with current case loads.

Backlogs in State Courts

A recent report by a conference of judges in the nine most populous states said that as with the Federal efforts steps taken by local prosecutors and state legislatures to strengthen enforcement of drug laws had failed to consider the impact on the courts. As one judge quoted i the report but not named said, "The mouth of the funnel has been enlarged, but the size of the neck remains the same."

And the judges are reporting problems that in many cases appear significantly worse than those of the Federal courts. State courts hear more than 95 percent of all narcotics prosecutions, "I've seen numbers showing that as many as 65 percent of the criminal cases are drug cases, but the drug-related problems are far greater, " said Chief Justice Robert N.C. Nix Jr. of the Supreme Court of Pennsylvania. "It is the most devastating thing that has faced the courts in recent times."

Sol Wachtler, chief judge of the Court of Appeals in New York, described meetings of court representatives from the nation's most populous states- California, Florida, Illinois, Michigan, Ohio, New Jersey, New York, Pennsylvania and Texas - as a group of people "looking in a mirror; their problems are almost identical."

A report on one of the conference's recent meetings expressed concern over "a profound emergency brought on by the efforts to control the use and sale of illegal drugs." The report said lawmakers and officials who had adopted tougher drug policies had failed to consider the impact of the "huge flood of cases" on the courts "Conferees warned of either an imminent or existing caseload crisis and possible breakdown of the system if solutions are not found soon.

FamilyCourts Hit Hard

In the state systems, the family courts are especially hard hit by drug cases. In the past three years alone, family court filings in New York have risen by 699 percent, the total for 1989 is expected to be 532,000 . In Manhattan family court filings jumped by 232 percent in the past four years. At the same time, the number of family court judges has remained level since 1983 at 116.

Florida reports that juvenile delinquent filings have increased from 74,000 in 1983 to more than 110,000 last year, and court officials there attribute the increase primarily to the jump in drug-related cases. But the effect of the drug prosecutions is felt throughout the state court administrator, said the average caseload for a trial judge there six years ago was 1,600 cases a year, and next year it is expected to be 2,000.

"We are having to shift our resources from civil to criminal," Mr. Palmer said, adding that there had been a substantial increase in the time needed to complete a wide variety of civil matters.

"It's a very dire picture, and one that the public needs to see more clearly," said John Clarke, the trial court administrator for Houdson County, N.J., which includes courts in Jersey City, Bayonne and Hoboken. The caseload in Hudson County has grown from 7,000 in 1986, to more than 21,000 this year. He said "We're backlogged thousands and thousands of cases."

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