AN OVERVIEW OF THE COURT COMPONENT IN CRIMINAL JUSTICE
No! No! Sentence first -- verdict afterwards (Lewis Carroll, Alice in Wonderland)

    At a basic level, courts are places where people bring disputes to be settled by law.  In order for court systems to have legitimacy, they must responsibly exercise their governmental powers and obligations, for which there are many: the seizure of property and persons; the determination of legal family status; enforcement of economic obligations;  protection of the average person from arbitrary governmental interference; and putting a non-bureaucratic face on justice.  Among the population, courts must have unquestioned, widespread support, and to accomplish this, courts must be fair and impartial, granting each person equal access to an equal chance of presenting their case with an equal chance of success.  Courts should be places of awe and majesty, resulting in at least the appearance of justice (Rubin 1976).  Whether or not justice is actually done usually depends upon who wins and who loses.  Courts may be primary examples of justice as a sporting event or morality play, but they are also places where you need professionals.  Every year in the U.S., at least 30,000 new binding decisions are made in the court systems, and this in addition to more than 18,000,000 published decisions make up the body of precedent, which are previous decisions that are guides to future decisions.

    In ancient times, people used temples, like the Oracle of Delphi, to assist them in making just decisions.  Other societies, like the early Hebrews, settled matters with a roll of the dice.  Early African tribal justice resembled a game of musical chairs.  There has always been a metaphysical, or unknown, element to the process of courtroom justice.  Even today, one can never predict the outcome of jury deliberation.  Likewise, the differences between judges and lawyers in their training, socialization, and politics (Wice 1991) make for variation in how decisions are arrived at.  Sociopolitical factors do not so much influence the final disposition of cases, but the process of handling cases.  It makes little sense to talk about places where courts are more "lenient" or "harsh" than other places.  Courtroom justice varies by courthouse location at the procedural level precisely because a set of shared norms and values develop between key actors in the workplace, this being called the courtroom workgroup concept (Eisenstein & Jacob 1977).  The primary differences involve how fast a case is processed, how much pressure is brought to bear on producing a plea bargain, and how much due process is sacrificed in the name of efficiency.  Eisenstein & Jacob (1977) found that all courtroom workgroups attempted to emulate the qualities of speed (a desire to dispose rather than dispense), factual guilt (they all assumed people who made it this far were guilty, and considered a finding of legal guilt routine), cohesion (all parties, even adversarial ones, tried to get along), and secrecy (most major decisions were negotiated in hallways or back rooms).         

    The American judiciary has unique powers.  Article III of the Constitution establishes a strong judiciary as an integral part of a system of checks and balances.  The American judiciary has power over other branches of government.  It can declare laws and executive directives unconstitutional.  It can issue "cease and desist" orders to agencies or agency personnel.  It has the summary power of contempt (jail time up to three years), and enormous resources other than simple detention and seizure.  Without any police force of its own, the judiciary can exercise control over guardianship, trusteeship, tax collection, legal status, or in short, every economic factor that matters.  Federal courts can determine when invasions of privacy are warranted.  Criminal courts can determine life or death.  Municipal courts can raise their own revenues by assessing fees (cash, check, or money order accepted), although federal and state courts are more financially independent. 

    The court component of criminal justice is the least expensive component to operate because of the small number of employees involved.  However, they are usually the highest paid employees in the criminal justice system.  The lowest paid state judge makes $80,000 a year, and federal judges average $150,000 a year.  The average starting lawyer's salary in the U.S. is about $45,000, but after about 10 years, it tends to reach $127,000.  Legal assistants only make $35,000 a year, but prosecutors and public defenders tend to make close to $100,000 a year in any mid-sized city. 

    Most Americans (85%) say that judges are honest, and almost half (47%) say lawyers are honest.  These figures have been slowly dropping in recent years.  The Center for Judicial Conduct Organizations estimates that every year, 12 judges have to be removed from office for misconduct, another 80 are publicly censured or admonished, and another 150 are privately censured or admonished.  Also every year, NOLO estimates that 550 lawyers are disbarred, and hundreds of others are suspended from practice temporarily.  Most states allow disbarred lawyers to apply for reinstatement (and 1 in 20 get it), but some wind up in jail.  There are three common pathways to getting disbarred. The first is when the lawyer steals funds from his or her client.  The second is when they commit a serious crime, such as homicide, rape, or tax fraud.  The third, and least common, way is when they deliberately lie in court.  There are serious problems with America's attorney discipline system because it is a self-regulating monopoly.

    Lawyers, of course, receive legal training and pass a bar examination to become lawyers.  Judges don't receive any special training as they are simply appointed or elected to positions.  There are problems with the educational standards for lawyers.  All have to take the LSAT (which is a poor predictor of success in law school); they take 2-3 years of coursework beyond a bachelor's to earn a JD, or juris doctorate, and mistakenly think they have the equivalent of a PhD; and numerous watchdog organizations report racism, sexism, and politics play a part in whether someone passes a given state bar.  In addition, graduation from a non-ABA approved law school doesn't prohibit one from the practice of law, as it only requires them to practice in the state where the school was located.  America currently has a glut of almost a million lawyers, one for every 275 citizens.  With judges, the Constitution doesn't prohibit the President from nominating someone for a federal judgeship without a legal education or experience as a practicing attorney.  All federal judges are appointed for life, and can only be removed via impeachment.  In addition, Congress cannot lower or modify their salaries.  At the state level, the vast majority of states (28 states) hold elections to select judges.  Half of these states hold "partisan" elections, which requires the judge to identify with a political party and raise campaign money.  The other half hold "nonpartisan" elections which attempt to restrict political influence.  Another eighteen (18) states use nominating commissions, but most combine them with a general election that gives voters a chance to retain them in office (the Missouri Plan).  Four (4) states allow their governor or legislature to select state judges.  Most state judgeships are for a period of 6-8 years.  No law degree is required for some lower court positions.  No one method of selecting judges has been found to ensure that judges are fair and honest.

    No chart or diagram ever does justice to the diversity of the American court system, but most are arranged into three-, four-, or five-tier hierarchies. Lawyers sometimes speak in terms of appeals courts and trial courts, higher courts and lower courts, superior courts and inferior courts.  Some states can be described as having a three-tiered judicial system composed of a trial-court level (sometimes called superior courts, district courts or circuit courts), an appellate court (often called the court of appeals) and a court of last resort (usually called the supreme court). Other states have an additional level of appeal or an additional level of trial courts.  State trials are presided over by a single judge (often sitting with a jury); entry-level appellate cases are heard by a three-judge panel; and in state supreme courts, cases are heard by all members of the court, which usually number seven or nine justices.  Understanding the federal court system is usually easier than understanding state court systems.  Much criminal justice study of the court system is aimed at understanding the bewildering array of courts and how they are structured and operate.  The U.S. has a complex system of upper and lower courts, all deriving their authority to hear certain kinds of cases from specific uses of the term jurisdiction -- which technically refers to sovereignty over subject matter, geography, or place in the court hierarchy, although the term is also used to describe how much discretionary power a court has in accepting or rejecting cases. America operates under a dual court system, one for the federal system and one for state systems, and the federal system is definitely a three-tier system and state systems are usually four-tier systems.
 

THE DUAL COURT FEDERAL (THREE-TIER) AND STATE (FOUR-TIER) SYSTEMS
U.S. Supreme Court: seats 9 justices, a chief and eight associates; has original jurisdiction in cases involving ambassadors or state versus state disputes; hears other cases when 4 agree to issue a writ of certiorari (pronounced sur-shee-uh-rah-ree) to review a lower court case, and different sides file briefs and attorneys make oral arguments; a vote of 5:4 or higher, with concurring opinions and/or dissents may be a landmark decision if it ends controversy and settles Constitutional interpretation.	State Courts of Last Resort: also called State Supreme Courts or High Courts that exist in all 50 states and typically have 5-9 justices who sit en banc (all together) and hear appeals from state courts of general jurisdiction or state intermediate appellate courts if the state has one; they have final interpretation on state law, and although technically, someone could appeal from this level to the U.S. Supreme Court, it rarely happens because few cases involve the Constitution or federal law.
U.S. Circuit of Appeals: consist of 167 judges among 13 courts, dispersed regionally, twelve to look for judicial error in lower courts, and one that handles patents and when the U.S. government is a defendant; they have mandatory jurisdiction (must hear appeals) from lower courts, and appeals are either frivolous, ritualistic, or nonconsensual, with nonconsensual appeals sometimes settled as precedent at this level.	State Intermediate Appellate Courts: exist in only 39 states to alleviate the burden on state courts of last resort; they have no trial jurisdiction and only hear appeals from state courts of general jurisdiction by reviewing trial transcripts and hearing occasional oral arguments; they have mandatory jurisdiction and must hear any legally appealed case; appellate judges usually sit in a panel of three to decide cases.
U.S. District Courts: consist of 650 judges among 95 courts dispersed in every state and territory; they have original jurisdiction (conduct trials) over criminal violations of federal law, and are assisted by 369 U.S. Magistrates who handle pre-trial matters and may try minor offenders; some courts at this level have specific responsibilities; many have cases backlogged.	State Trial Courts of General Jurisdiction: variously called superior, district, or circuit courts, they consist of about 3,000 state-funded courts which keep transcripts and hold felony trials; when states create specialized courts, such as drug courts, mental health courts, or community mediation centers, they can exist at this level or at a lower level.
	State Trial Courts of Limited Jurisdiction: variously called inferior, lower, city, municipal, country, or magistrate courts, they consist of about 13,000 courts most of which are funded by city or county governments (which sometimes mistakenly call them circuit or district courts), hearing traffic cases, ordinance violations, and criminal misdemeanors; no jury trials are held, and no transcripts are kept, requiring a trial de novo if an appeal is made.

    STATE COURTS: There are two basic facts about state court systems: (1) no two states are completely alike; and (2) you can't tell what a court does by its name. All states have trial courts devoted to criminal cases, but in places like Ohio and Pennsylvania that have a unified court system, the criminal courts are known as courts of common pleas; in California, criminal courts are called superior courts; in New York as supreme courts; and in Michigan as recorder's courts. So, even narrowing our focus down to criminal courts is of little help, and the situation gets worse when you start looking at chancery courts, probate courts, magistrate courts, municipal courts, family courts, juvenile courts, night courts, drug courts, county courts, mayor's courts, and inferior courts. Some jurisdictions have put together Internet guides to find the court you need.

    Major criminal cases begin at the trial-court level. These courts are often divided into two levels: courts of general jurisdiction and specialized courts.  Cases decided by a trial court are subject to appeal to and review by an appellate court. In some states, as noted above, there is only one level of appeal from the lowest state court. In states in which there are two courts of appeal, rules differ as to whether a case will automatically go to the appeals court or the state supreme court. In some states, appeals from the trial court are brought to the mid-level state appellate court, with subsequent discretionary review by the state supreme court. In other states, litigants bring appeals from the trial-level court directly to the supreme court, which decides whether to hear the case itself or to have the appeal resolved by the intermediate appeals court. Under either of these scenarios, the state supreme court generally reviews cases that involve significant matters of state law or policy.

    All states have a court of last resort, and although the name varies, these are usually state supreme courts which like all supreme courts, have the power to selectively pick and choose which cases they want to hear. States also have appellate courts which consider civil and criminal appeals and review lower court decisions. Appellate courts must hear cases if an attorney files the right paperwork. The lower courts (ironically called superior courts in some jurisdictions) are the entry point for most criminal cases, especially misdemeanors. For felonies, the lower courts hold initial appearances, preliminary hearings, and make bail decisions.

    Specialized state courts are trial-level courts of limited jurisdiction that only hear cases that deal with specific kinds of legal issues or disputes. Although these courts vary from state to state, many states have specialized courts for traffic matters, family law matters, probate for the administration of decedents' estates, and small claims (for cases involving less than a specific sum of money). Rulings of these specialized courts are subject to appeal and review by state courts of general jurisdiction. Local courts also exist at the municipality level, in towns or villages, and are presided over by local magistrates, who are public civil officers possessing judicial power delegated under the local governing laws. This may include the power to rule on laws relating to zoning authority, the collection and expenditure of local taxes, or the establishment and operation of public schools.  New Jersey maintains an informative site with good information on municipal court systems.

    Somewhat problematic is a lower court known as the Justice of the Peace court (aka commissioner's court) where the judge doesn't even have to be an attorney. Another problem area is with various municipalities that sometimes use police courts, where the desk sergeant acts as a magistrate. These types of courts generally are a relic of red-light districts that used to exist in major metropolitan areas. In such courts, magistrates from various backgrounds exercised assembly-line justice against groups of prostitutes, drunkards, traffic offenders, minor offenders, etc., under conditions of little dignity.

    The major reform effort in changing state court systems is called court unification, but local and county governments don't usually want to give up administration of their own courts. In recent years, the opposite of unification has occurred with municipalities creating specialized, speedy "drug courts," domestic violence "night courts," and teen courts, so precisely the opposite has been happening at the state level -- instead of unifying, courts have been proliferating.

    FEDERAL COURTS: While on the state level some justices are popularly elected, no federal judge is elected by any constituency. They also do not serve a fixed term, but rather hold office for life "during good behavior."  These two provisions result from constitutional attempts to isolate judicial decisions from political pressures, and contribute to the independence of the judiciary. Originally (in 1789), there were 13 U.S. district courts, but today, there are 95 of them, distributed throughout all 50 states and U.S. territories. District courts are the most common trial courts of the federal system. They have general jurisdiction over all federal crimes, bankruptcies, and when somebody challenges the constitutionality of a state or federal law. No district court crosses state lines. Large states like California, New York, and Texas each have four U.S. district courts.   The number of judges depends on the size and population and workload. Although each district has numerous judges, a single judge presides over each case.

    Above the district courts are the U.S. courts of appeals, and they are placed in 13 geographic regions called circuits. Sometimes, all the judges in a circuit get together to decide a case, a practice called en banc. The federal appeals courts review cases from the district courts and also administrative decisions of federal regulatory agencies. Appellate judges are allowed to hire three law clerks.  The intermediate courts of appeals are considered the workhorse of the federal court system because the brunt of cases are resolved there. Appeals are taken from U.S. district courts to the U.S. courts of appeals if a losing party feels that the judge in the district court made an error of law. Appeals may not be taken to correct perceived errors of fact, unless there is a clear error of law. Thus, for example, a losing party may argue that the judge erred by admitting a certain document into evidence; but the losing party may not argue that the judge or jury reached a bad conclusion based only on that document.

    The U.S. Courts of Appeals may decide cases on the basis of written briefs submitted by the litigants or may order oral argument. A decision is based on written opinion drafted by one of the judges and circulated to the other two panel members. The opinion of the court also must be signed by at least two panel members. Any of the judges on the panel may write a concurring opinion in which the judge agrees with the result reached in the majority opinion but for different or additional reasons. A judge that disagrees with the opinion of the court may instead write a dissenting opinion explaining why he or she has reached a different conclusion. Although dissenting and concurring opinions do not have the force of law, they may be highly influential in subsequent court decisions. After the three-judge panel has rendered a decision, litigants have several options: they may seek reconsideration of the decision by the same three-judge panel; they may seek rehearing of the panel's decision by all of the judges of that circuit sitting together; or they may seek review by the U.S. Supreme Court by filing a motion for a writ of certiorari, (when the lower courts have ruled on the case and disagreed on their opinions). Each of these measures of relief is discretionary, however, and is rarely granted.

    Finally, there is the U.S. Supreme Court, which has been the subject of much criminal justice study. Judges at the supreme level are called justices, not judges, and usually limit themselves to hearing about 100 cases a year.  The Supreme Court's general jurisdiction is largely discretionary through the process of certiorari. Under the so-called rule of four, if four of the nine justices favor hearing a case then certiorari will be granted. The Court often accepts cases in which there is a split of authority among different U.S. circuit courts or in which important constitutional or other legal principles are implicated. The denial of certiorari does not imply agreement with the lower courts' decisions, but simply indicates that the requisite number of justices for whatever reason did not want to hear the case.  Besides a writ of certiorari, the Supreme Court can review cases on appeal from federal courts or state supreme courts whose decisions are based on an issue of federal law (for example, when a federal appeals court invalidates a state statute; or when a state court strikes down a federal statute). The Court also may decide specific legal issues referred to it by lower federal courts. The Supreme Court also has original jurisdiction over certain limited cases: controversies between two states; controversies between the United States and an individual state; actions by a state against a citizen of another state or an alien; and cases brought by or against a foreign ambassador or consul.

    Special courts include the U.S. Court of Federal Claims, which handles monetary suits brought against the United States, and the U.S. Court of International Trade, which is authorized to hear and decide civil actions against the United States, federal agencies or their employees, arising out of any law pertaining to international trade. There is also one specialized federal appeals court -- the U.S. Court of Appeals for the Federal Circuit. This court has jurisdiction over appeals from all district courts in cases arising under patent laws as well as over appeals from the U.S. Court of Federal Claims and the Court of International Trade. The federal system also embraces a number of courts known as legislative or Article I courts, referring to Article I of the U.S. Constitution.  Article I courts act pursuant to Congress' legislative powers and have the authority to decide factual questions relating to specific matters. Examples of Article I courts include the U.S. Court of Appeals for the Armed Forces, the U.S. Court of Veterans Appeals, the U.S. Tax Court and the U.S. Bankruptcy Courts. Appeals from these courts may be brought to the U.S. Courts of Appeals.

    Administrative courts mean that an agency will sit as a fact-finding tribunal in applying federal regulations. When disagreements occur, the parties present their evidence to an administrative law judge (ALJ), who acts as the fact-finder. Either party may appeal the judge's decision, usually to a board or commission established by the federal agency that issued the regulations. Because the ALJ has already served the fact-finding function that would normally be undertaken by a federal district court, appeals from rulings of major agencies (e.g., National Labor Relations Board or the Federal Trade Commission) are brought directly before the U.S. Courts of Appeals. Although such appeals may be brought in any circuit, as a practical matter the D.C. Circuit hears most appeals from federal agencies.

    Finally, there are about 275 federally-recognized tribal justice systems in the U.S. on Native American lands.  They do not use lawyers nor operate under an adversary system.  They resolve disputes through a process of consensus achieved via the use of peacemaking, elder councils, or sentencing circles.  Likewise, juvenile courts operate under a completely different philosophy.  

INTERNET RESOURCES
BJS Court and Sentencing Statistics
Brennan Center for Justice at NYU
Federal Judicial Center
Federal Judiciary Homepage
Glossary of Legal Terms
Judicial Watch (Honesty)
Justice at Stake Campaign for Fair State Courts
LII Federal Courts Overview
National Center for State Courts
National Tribal Justice Resource Center
NCJRS Courts Page
North Carolina Court System
Salaries of Prosecutors and Public Defenders
Sourcebook of Criminal Justice Statistics on Courts
Well-done Court sites on the web

PRINTED RESOURCES
Eisenstein, James & Herbert Jacob. (1977). Felony Justice: An Organizational Analysis of Criminal Courts. Boston: Little, Brown.
Eisenstein, James, Roy Flemming & Peter Nardulli. (1988). The Contours of Justice: Communities and their Courts. Boston: Little.
Feely, Malcolm. (1979). The Process is the Punishment: Handling Cases in Lower Criminal Court. NY: Russell Sage Foundation.
Holten, Gary & Lawson Lamar. (1991). The Criminal Courts: Structures, Personnel, and Processes. NY: McGraw Hill.
McCoy, Candace. (1995). "The Future of Criminal Court" Pp. 127-45 in John Klofas & Stan Stojkovic (eds.) Crime and Justice in the year 2010. Belmont: Wadsworth.
Neubauer, David. (1992). America's Courts and the Criminal Justice System. Pacific Grove: Brooks Cole.
Rubin, H. Ted. (1976). The Courts: Fulcrum of the Justice System. Santa Monica: Goodyear.
Smith, Christopher. (1993). Courts, Politics, and the Judicial Process. Chicago: Nelson Hall.
Stolzenberg, Lisa & Steward D'Alessio. (2001). Criminal Courts for the 21st Century. Englewood Cliffs: Prentice Hall.
Stumpf, Harry & John Culver. (1992). The Politics of State Courts. NY: Longman.
Wice, Paul. (1991). Judges and Lawyers: The Human Side of Justice. NY: Harper Collins.

Last Updated: 02/04/04
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