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Tuesday, September 26, 2006

Ind. Courts - More from South Bend Tribune series on the county's judges

The South Bend Tribune series on St. Joseph County judges continues today. Yesterday the ILB quoted from the Tribune's Sunday story, titled "Similar crime, similar counties, different punishments," comparing St. Joe and Elkhart counties.

Monday's Tribune story, headed "Prison sentence often last resort in St. Joseph County judicial system," was written by Jeff Parrott and Patrick M. O'Connell. Some quotes from the long story:

[Superior Judge Jerome Frese] declined to comment on a specific case. But in recent interviews with The Tribune, he and two other St. Joseph Superior Court judges made one thing clear: Except for very violent crimes, they often regard prison as a last resort.

No matter how much the public clamors for it, they do not believe prison rehabilitates many people. On the contrary, the judges think it often leaves defendants worse off.

"You take a mean puppy and put him in prison and he comes out a mean dog," Judge Roland W. Chamblee Jr. said. "Unless you're going to sentence somebody for life, they're going to come back into the community, so what can you do short of sending somebody to prison if they're a first-time offender?" * * *

In sentencing Berry, Frese said in court that he did not believe sending him to prison was going to help rehabilitate him or help him turn his life around.

Frese frequently orders prison sentences that fall below the penalty range spelled out in state law, according to a Tribune computer-assisted analysis of his sentencings from July 2005 through June 2006. For instance, his average executed sentence for Class D felonies, the least severe types of felonies, was three months in jail. * * *

St. Joseph Superior Judge John Marnocha agrees.

"I don't believe that there is rehabilitation in prison," Marnocha said. "I don't know that there ever was. I think that what you're doing when you put somebody in prison is you're simply warehousing them and keeping them separate from society, period."

Chamblee said he prefers to impose "split" sentences, giving the defendant a little prison time followed by probation. Ideally, he keeps the prison time short enough that the convict's life isn't ruined but long enough to give him a taste of life behind bars to deter future crimes.

But Andy Pazera, assistant superintendent of re-entry for the Westville Correctional Facility, emphasizes that the Indiana prison system is more than a warehouse for criminals.

At Westville, offenders can choose from an offering of 10 vocational classes -- from auto body to culinary arts -- and the facility offers two substance abuse programs, including the 24-hour "Therapeutic Community," which has an enrollment of 270.

A basic level reading and writing program, GED classes and the "Thinking for Change" program, which challenges offenders to evaluate their past and alter their behavior for the future, are available to prisoners.

"We're doing constructive and creative things and providing positive options for offenders," Pazera said. "Re-entry is our No. 1 focus." * * *

Although they try not to let cost drive their sentencing decisions, the St. Joseph judges said state prison officials make them well aware of how costly and crowded prisons are. Chamblee said judges periodically receive a report via e-mail that lists the capacity and population figures for Indiana prisons.

Judges also have been informed that it costs the state about $60 a day to house each prisoner.

The judges said they hate to see a defendant who has come before them and received a break commit a new crime while on probation. But they don't feel responsible.

"Sometimes it works and sometimes it doesn't," Marnocha said of probation. "People all the time appear in front of me and they tell me that they found God and they've changed their life, blah blah blah. ... I tell them, if just 50 percent of the people meant that, and if another 50 percent of people who meant it, did it, the world would be a better place.

"But hey, here's the deal. A defendant who gets probation or a defendant who gets a light sentence and commits another crime ... it's that person's fault for committing another crime. I think we tend to look at those and say, 'Well gosh, if you had put him in jail he wouldn't have committed the crime.' Well, maybe not that crime then, but maybe some crime later."

Frese noted that the Indiana Constitution says the correctional system should be rehabilitative, not punitive.

"Should we take that seriously? We shouldn't throw it out the window unless we're going to amend it," Frese said. "My problem with prisons is, just for working out a mechanistic retribution: You've done a D felony, you should get 18 months in prison. Doing that, I think, is not doing justice. I think it is against everything we stand for."

Today's Tribune story, also by Jeff Parrott and Patrick M. O'Connell, is headlined "How judges chosen an ongoing debate: St. Joseph one of two counties in Indiana where retention is still used." Some quotes:
What's it take to get booted from a Superior Court bench in St. Joseph County?

Who knows? It's never happened. * * *

Since St. Joseph County adopted the retention system for Superior Court judges in 1973, judges have come up for retention on the ballot 34 times. On average, 73 percent of voters have voted for retention, according to a Tribune analysis of election records. * * *

Experts say judges have been just as entrenched in other states that have chosen the "merit selection" system over popularly electing judges.

In 5,300 merit retention elections from 1964 to 2004 in 10 states, including Indiana, voters have declined to retain appointed judges only 52 times, said professor Larry T. Aspin, chair of Bradley University's political science department in Peoria, Ill.

Aspin sees that as a testament to the high quality of judges selected through the merit system, rather than some flaw in the model.

"If they were really bad, and I underline 'really,' I think more of them would be voted out," Aspin said. "I tend to prefer merit retention because you can have a judicial commission sift through and make sure you get someone with the best qualifications."

Under the merit selection model, a local commission of lawyers, judges and citizens gathers when a judgeship becomes vacant, interviews judge applicants and sends three finalists' names to the governor. The governor then picks one to be judge. Every six years, voters then can vote "yes" or "no" on whether to retain the judge for another six years.

Nineteen states and the District of Columbia now use some form of merit selection for trial court judges, according to the American Judicature Society, a nonpartisan group that works to improve the justice system.

Merit selection for trial court judges is not very common in Indiana.

Although it still popularly elects its judge for Circuit Court -- which largely handles civil cases with the exception of a few types of crimes, such as welfare fraud -- St. Joseph is one of just two Indiana counties that uses merit selection for Superior Court judges. Lake County is the other.

A 1973 state law implemented merit selection for Superior Court judges in the four largest counties outside the Indianapolis area: St. Joseph, Allen (Fort Wayne), Vanderburgh (Evansville) and Lake (Gary). Driving passage of the law was the idea that it was becoming increasingly difficult in larger metro areas for voters to learn enough about candidates to cast informed votes, recalled Frank Sullivan, a South Bend native and current state Supreme Court justice.

But Vanderburgh and Allen switched back to elections in 1978 and 1982, respectively. Unlike most other Indiana counties, Vanderburgh and Allen have nonpartisan elections for Superior Court judges, meaning judge candidates cannot declare a political party affiliation. * * *

[Justice Frank] Sullivan, who chairs the St. Joseph County Judicial Nominating Commission, concedes that the retention system -- also used by the Indiana Supreme Court and Indiana Court of Appeals -- is not perfect, but he thinks it's the best of all options.

"It was seen as a better way to get more highly qualified judges on the bench if there was this screening process and they could stay on longer," Sullivan said, "rather than becoming swept up in the tide of a partisan election ... not on their merits but on the basis of which political party is doing better that year." * * *

Sullivan was asked whether the retention system can allow a judge to stay on the bench too long, years after he has started making poor decisions or perhaps even grown senile, because voters are largely unaware of his performance.

"That could happen," Sullivan said. "It's a weakness of the system. But I think if one looks around at partisan contested elections ... you (also) see people past their prime being elected over and over again."

Although he favors a system that essentially creates an indirect rather than direct democracy, Sullivan said he thinks voters are "very qualified" to pick judges.

"(But) I do think a judge's role is quite different as a matter of separation of powers. ... There is a value in distinguishing between candidates running for judicial office, as impartial arbiters of disputes, versus advocates for a particular set of positions. If someone is coming after you and attacking particular decisions you've made, I think that can undermine the judicial system."

David Parker, assistant professor of political science at Indiana University South Bend, agreed.

"Essentially I think election of judges is ridiculous and in contradiction of the founding principles," Parker said.

Parker also thinks the average voter doesn't know enough about judicial candidates to elect the best ones.

"It's basically a beauty contest," Parker said. "People see the name and say, 'Oh, I've heard of him.' Click. It's an information-less environment."

Parker said it is "virtually impossible," even for voters who pride themselves on gobbling up as much information as possible in preparation for the election, to gauge a judge's job performance on the bench.

Aspin, political science department chair at Bradley University, said a growing number of states are trying to give voters more of that knowledge. Arizona and Colorado are two states that have recently established judicial performance evaluation commissions.

Evaluating judges' performance is difficult to do because the criteria is so ambiguous and based on a highly subjective value system, said Lawrence Baum, professor of political science at Ohio State University.

For instance, Baum said, for many voters, taking a hard line on crime means handing out long prison sentences. Others might not agree.

It would be more beneficial to evaluate judges based on their commitment to the job, their knowledge of the law and their overall fairness, Baum said. But it's not possible to gather data on those criteria like it is possible to put together sentencing information.

"There's no way to know simply by looking at leniency or harshness whether a judge is doing well," Baum said. [emphasis added by ILB]

Note that although the story does not mention it, Justice Frank Sullivan is himself up for retention this year, for his spot on the Indiana Supreme Court. See yesterday's ILB entry.

Posted by Marcia Oddi on September 26, 2006 08:30 AM
Posted to Indiana Courts