Arizona Law Review - Summer 2010 - Funding Justice
Big Money and Impartial Justice: Can They Live Together?
Many Americans believe that justice is for sale. Over the past decade, polling data has shown that a majority of Americans believe campaign contributions can tilt the scales of justice by influencing courtroom decisions. Two recent U.S. Supreme Court cases, Caperton v. A.T. Massey Coal Company and Citizens United v. Federal Election Commission, have once again drawn attention to this trend in public opinion and, in particular, to the influence of campaign contributions on judicial decision-making. This Article provides an overview of fundraising, spending, and advertising in judicial campaigns, discusses public confidence in the courts, and explores reform efforts to protect the impartiality of the judiciary.
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Justice Deserts: Spatial Inequality and Local Funding of Indigent Defense
This Article maps legal conceptions of (in)equality onto the socio-geographic conception of spatial inequality in relation to the funding and provision of indigent defense services in the State of Arizona. In particular, we examine county-to-county variations in funding and structures for providing this constitutionally mandated service. Our analysis focuses on disparities in funding among five Arizona counties, and we also scrutinize those counties’ provision of indigent defense for several problems commonly associated with underfunding: caseloads and competency, financial conflicts of interest, lack of parity with prosecution, and the risk that a single case will overwhelm a county’s defense system. Despite some gaps in publicly available information detailing the funding and provision of indigent defense across all Arizona counties—information that could be developed through discovery should litigation be initiated—we argue that evidence of county-to-county variations in funding and delivering indigent defense is sufficient to suggest that the systems of some Arizona counties are at risk of violating the U.S. Constitution’s Sixth Amendment right to counsel and Fourteenth Amendment Equal Protection Clause.
Pro-Prosecution Judges: "Tough on Crime," Soft on Strategy, Ripe for Disqualification
The U.S. justice system is rife with an overexposed, understudied avenger, the tough-on-crime judge. Under the pressure of elective systems, pro-prosecution judges announce that they are “tough on crime” and that their opponents are “soft on crime” to gain votes, and all judges are effectively forced either to adjudicate tough(er) on crime or risk losing office. This phenomenon has become engrained, albeit begrudgingly, in state court culture. The problem is that tough-on-crime judges are antithetical to the American concept of judge; these judges offend, in varying degrees, the three most commonly recognized judicial values: impartiality, integrity, and independence. The Supreme Court opinion in Caperton v. A.T. Massey Coal Co. has reinforced due process disqualification of apparently biased judges, arguably including tough-on-crime judges presiding over criminal cases. And, moreover, tough-on-crime judges seemingly stand opposed to the rules of judicial ethics and even ethics in general. For these reasons, they are ripe for disqualification in all criminal cases. This Article provides the first comprehensive study of the pro-prosecution judge and evaluates the systemic (e.g., public funding) and case-specific (e.g., disqualification) remedies to this perplexing phenomenon.
What is “(Im)Partial Enough” in a World of Embedded Neutrals?
The Supreme Court’s decision in Caperton v. A. T. Massey Coal Co. highlighted the fragility of judicial independence and impartiality in the United States. A similar, less-noticed fragility of independence and impartiality exists among the arbitrators, mediators and administrative hearing officers who resolve an increasing number of disputes. Everywhere one looks, there is unremarked yet remarkable evidence of the rise of “embedded neutrals,” particularly in uneven contexts between one-time and repeat players. This phenomenon becomes particularly worrisome when the embedded neutral’s role is due to their special relationship with the repeat player, and the one-time player is not as sophisticated as the repeat player, has not voluntarily or knowingly chosen the dispute resolution forum that will be used to resolve their dispute, and is either unaware of the special relationship between the neutral and the repeat player or effectively unable to challenge it. As dispute resolution becomes a lucrative private business, it is easy to begin to worry about the corrupting influence of repeat business and money on the ability of embedded neutrals to “hold the balance nice, clear and true.” The Supreme Court, however, seems largely oblivious to these concerns. The Court has encouraged deference to the decisions and settlement agreements these neutrals produce and has regularly rejected one-time players’ claims of structural bias. This Article explores whether the analysis in Caperton and its antecedents—i.e., conducting a close examination of the volume and flow of monies that may provide direct and indirect benefit to the neutral, their timing, and the plausibility of their effect on an adjudicated outcome, in order to determine whether the risk of actual bias is “too high” to be deemed “constitutionally tolerable”—could be applied to assess the sufficiency of the impartiality offered by embedded neutrals and private dispute resolution organizations when they are treated as adequate—and sometimes superior—replacements for independent and public trial courts.
Updated: 05/18/2010