The Scandal of Court Congestion

The nation's local criminal courts stand alongside the police as the frontline of U.S. law and order. But in city after city, they have become scandalously congested--nowhere worse than in New York City, a paradigm of American judicial failure.

The clog in New York's criminal courts is so monumental that in 1968 they took on 480,000 new cases and wound up with 520,000 still unsettled. The backlog has multiplied nearly 15 times in ten years. Preliminary-hearing sessions are so jammed that 30 seconds is a typical proceeding. After that, the average defendant waits two months before getting to plead guilty or not guilty. Those who demand a trial sometimes wait three years--in jail if they cannot afford bail.

Queen's Justice. On the other hand, the jam-up also allows knowing criminals to negotiate with harried prosecutors for a reduction of the charges in return for a guilty plea that will save the busy courts the time and expense of a trial. A 1968 survey of 136 accused muggers showed that 62% of them used such "plea bargaining" to get minuscule sentences for misdemeanors like petty larceny, which, strictly speaking, they did not commit. Moreover, a plea-bargained sentence often amounts to the time already served while waiting for trial. Mayor John Lindsay recently likened all this to the Queen of Hearts' version of justice: "Sentence first --verdict afterwards."

What can be done? The obvious answer is to erase some laws from the books. So-called "victimless" crimes like public intoxication, for example, devour court time across the country. Drug offenses account for 51% of all serious criminal cases in Los Angeles. If legislators repealed penalties for crimes like gambling and pot-smoking, the courts could obviously focus on the major crimes they now handle so badly.

For the moment, though, the courts will have to revamp themselves rather than the law. The traditional answer is more judgeships. But too many judges still get their jobs on the basis of party loyalty, not judicial skill. Beyond that, new judges often make surprisingly little difference. Last year New York City added 20 new criminal-court judges --and the courts are more clogged than ever.

What the courts really need is a few imaginative ideas--and the reformers offer plenty. Current suggestions being tested include removal of parking violations from criminal courts and various schemes to release petty offenders without bail--for example, by issuing summonses for court appearances or by putting some consenting defendants on immediate probation without a trial or even a plea. At long last, a few cities are also discovering familiar business-management techniques. Philadelphia, for example, uses a computer for record keeping and to spot inefficiencies on the trial docket; the city is also moving lesser offenses out of regular courts. Charges that carry penalties of two years or less are handled by special judges who settle the case without a jury. Any defendant dissatisfied with the result may have a full court trial, but so far less than 4% have made the request. As a result, Philadelphia's untried criminal cases have decreased from 11,578 last year to 5,594 now.

According to retired Supreme Court Justice Tom Clark, who has concentrated on court congestion in recent years, a key roadblock is the over-compartmentalizing of judges. Most cities assign one judge to handle all arraignments, another for all motions, and so on. Prosecutors and even public defenders are often assigned the same way. Thus all have to start from scratch at each level. Justice Clark and other experts urge that a single judge should handle each case from start to finish. The experimental reform has already speeded up court work in San Francisco, Cleveland and Pittsburgh.

Imposed Time Limit. The chief prod for solving court congestion may well be the Sixth Amendment's guarantee of a speedy trial. So far, federal courts have found nothing unconstitutional about delays of a year and sometimes more. In a pending case, however, the nine judges of a federal appeals court are being asked by New York City, among other interested parties, to define the speedy-trial right--for the first time--by setting a six-month limit between arrest and trial. Under the proposed rule, a defendant could request that the charges be dropped after the deadline unless the prosecution offered compelling reasons for the delay.

The idea, of course, is that such a limit would force the courts to speed up --or else provoke public wrath when accused criminals go free. Whether trial deadlines should be defined by federal courts and enforced as a constitutional right is debatable. It may well be preferable for state legislatures to enact statutes setting the deadlines--as in Illinois and California, where defendants are now supposed to be tried within four and two months respectively. But if other states fail to follow suit, the reformers say, then a constitutional rule for speedy trial may be the only way to waken the public and solve the nation's deplorable court congestion.

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