1. Reduce The Scope Of Federal Court Jurisdiction
In terms of major top line categories, federal criminal cases break down as follows:* Violent Crimes 2.4%* Property Offenses 11.3%* Drug Offenses 27.8%* Firearms and Explosives Offenses 13.9%* Sex Offenses 3.6%* Justice System Offenses 0.9%* Immigration Offenses 33.5%* General Offenses 1.9%* Regulatory Offenses 1.5%* Traffic Offenses 2.2%The single most commonly charged offense is illegal reentry by an alien which accounts for 27.5% of all federal criminal defendants. Like all immigration offenses, it has no state law equivalent, but there is no really compelling reason to make this offense a crime, rather than simply making it an administrative immigration matter that is a grounds for deportation and for denial of future immigration benefits. Improper entry by an alien accounts for just 0.6% of all federal criminal defendants but is another unnecessary federal immigration crime.
many federal crimes . . . are easily repealed and left to state and local authorities (with the estimated impact on the federal docket): Most federal homicides (0.1%), bank robbery (0.6%), kidnapping (0.2%), most racketeering offenses (0.6%), theft and embezzlement from banks and financial institutions (0.1%), many federal fraud offenses (0.7%), pornography offenses (1.7%), and all intrastate drug offenses (25.5%), for example, could be repealed.Combined, repealing the crime of illegal re-entry by an aliens, and the other crimes suggested would reduce the federal criminal docket by 57.5% and probably a little more than that . . . This would also greatly shrink the federal prison system, although not proportionately, since the immigration offenses decriminalized typically involve short, often mere "time served" sentences.Combined with a significant (roughly 51.9%) reduction in federal civil dockets by simply repealing 28 U.S.C. §§ 1331 (general federal question jurisdiction) which accounts for about 18.4% of cases that don't have an additional specific jurisdictional basis, and 1332 (diversity jurisdiction) which accounts for 32.9% of civil cases filed in federal court), these straight forward reforms could greatly reduce the importance of the federal courts . . . , thereby decreasing the stakes in federal judicial appointments below the U.S. Supreme Court level.
From here.
2. Increase the Size Of The U.S. Supreme Court
Add 6 new justices to the U.S. Supreme Court, bringing the total number of justices to 15, initially 3 ultraconservatives, 3 conservatives, and 9 liberals.
The U.S. Supreme Court quorum should be reduced from six of nine justices now, to eight of fifteen justices, to prevent a boycott that undermines a majority decision.
The number of justices in an expanded Supreme Court needed to grant certiorari would be six or seven as determined by the court.
The U.S. Supreme Court should elect its own Chief Justice rather than having that post designated by the President and the U.S. Senate, in furtherance of the separation of powers.
A larger court might also have a greater capacity to handle more cases per term since there would be fewer lead opinions to write per justice.
3. Transfer Indian Country felonies from U.S. District Courts to a new court.
Tribal courts handle misdemeanors committed by Native Americans on Indian Reservations and civil cases. Generally, felonies committed on Indian Reservations, by both Native Americans and non-Native Americans, are tried in U.S. District Court by federal prosecutors.
I would favor creating a new federal trial court system and corps of federal prosecutors and investigators who would handle felonies committed by Native Americans on Indian Reservations, which make up a large share of the "blue collar crime" docket in the federal courts, with appeals from these courts going to a new federal circuit court.
4. Discouraging Judge Shopping and National Injunctions
* Require cases in a U.S. District Court to be randomly allocated to the judges in the district.
* Require cases challenging the constitutionality or validity of a federal law or regulation to be heard by a three U.S. District Court judge panel. There would be a direct appeal of right to the U.S. Supreme Court in cases where the law or regulation is invalidated, except as provided below.
* Limit facial challenges of federal laws and federal regulations to a three U.S. District Court judge panel of the U.S. District Court for the District of Columbia (with appeals to the U.S. Court of Appeals for the District of Columbia Circuit).
* Clarify that the statute of limitations for challenges to the process by which a regulation is adopted runs from the date that the regulation was adopted (overturning a recent U.S. Supreme Court precedent).
* Limit the authority to enter a national injunction that binds the United States vis-a-vis anyone other than the parties to the case to a three U.S. District Court judge panel of the U.S. District Court for the District of Columbia (with appeals to the U.S. Court of Appeals for the District of Columbia Circuit).
5. Splitting The 9th Circuit, And A Merger
As much as anything, this pre-empts less desirable splits. There would be no pressure based upon the number of judges or docket load to split up the rump 9th Circuit with its six states and two territories, and it would have a balanced red-blue mix. The new 12th Circuit with three states would still be very large in terms of its number of judges and docket size, and it would be even more dominated by California than the existing 9th Circuit, although it would also have a red-blue mix.
Splitting California up would lead to chaos, and moving Arizona from the 9th to 10th Circuits would also lead to complicated issues of which circuit's precedents applied to it. Circuits have also always had at least three states, which this plan would maintain. California, Nevada, and Arizona have strong economic ties and would benefit from having only a single circuit's precedents to govern them, which would not happen, for example, in a plan where California, Hawaii, Alaska, and the two territories were part of a new 12th Circuit.
The D.C. Circuit could be merged into the Federal Circuit.
A mentioned above, there would also be a new U.S. Court of Appeals For Indian Country.
The split would also leave 15 U.S. Courts of Appeal (twelve numbered circuits, the newly merged Federal Circuit, the Indian Country Circuit, and the U.S. Court of Appeals For the Armed Forces), one of which could be allocated to each justice in an expanded U.S. Supreme Court, as a circuit justice for that court.
6. Circuit splits.
One way to mitigate the harm caused by circuit splits, albeit at the cost of certainty in any particular circuit, would be to downgrade the effect of a precedent, even in the circuit in which it was decided, from binding precedent to persuasive authority, on any point of law with regard to which there is a live circuit split that has not been resolved by U.S. Supreme Court ruling, statutory change in the law, or a later en banc decision in the same case that the panel decided.This would bring more judges into the process of considering the issue decided by the initial panel on the policy and precedent merits as a case of first impression, rather than pursuant to a precedent which has been seriously questioned.If the panel decision downgraded to persuasive authority is well argued, it will still be followed. But, if it was poorly reasoned, other judges considering the issue will decline to follow it.This rule would also put more pressure on the U.S. Supreme Court and Congress to resolve legal issues upon which circuit splits arise. This pressure should be present because many firms and organizations and even individuals need to take an action which will ultimately be subject to legal review in more than one circuit and a circuit split cements the inability of these people to predict the legal outcome of that issue since they don't know where it will arise.
From here.
7. Habeas corpus and prisoner's litigation
In 2004, there were about 19,000 non-capital federal habeas corpus petitions filed and there were about 210 capital federal habeas corpus petitions filed in U.S. District Court. There are about 60 habeas corpus cases filed in the U.S. Supreme Court's original jurisdiction each year. The U.S. Courts of Appeal do not have original jurisdiction over habeas corpus petitions. . . . As of 2004, the percentage of federal habeas corpus petitions involving state death sentences was still about 1% of the total. . . . About 63% of issues raised in habeas corpus petitions by state court prisoners are dismissed on procedural grounds and about 35% of those issues are dismissed on the merits, while about 2% are either resolved favorable to the prisoner on the merits or remanded to a state court for further proceedings at the U.S. District Court level. . . . [A]study found that when habeas corpus petitions in death penalty cases were traced from conviction to completition of the case that there was "a 40 percent success rate in all capital cases from 1978 to 1995." . . . [Another study] puts the success rate in habeas corpus cases involving death row inmates even higher, finding that between "1976 and 1991, approximately 47% of the habeas petitions filed by death row inmates were granted." . . . about 20% of successful habeas corpus petitions involve death penalty cases. . . . As of 1991, the average number of federal habeas corpus petitions filed in the United States was 14 per 1,000 people in state prison, but this ranged greatly from state to state from a low a 4 per 1,000 in Rhode Island to a high of 37 per 1,000 in Missouri.
The number of non-death penalty convictions reversed in federal habeas corpus proceedings is about 3 per 10,000.
From here.
These cases, and prisoner's litigation, are very numerous but often futile, in part due to harsh restrictions in the 1996 Prisoner Litigation Reform Act and the 1996 Anti-Terrorism and Effective Death Penalty Acts.
There were 9,690 prisoner's petitions, including habeas corpus petitions, out of 293,539 civil cases in U.S. District Court in the fiscal year ending September 30, 2023 (about half of the number filed twenty years ago in 2004), and about 3.3% of the civil docket.
In the U.S. Courts of Appeal there are 9,089 prisoner's petitions out of 39,987 total appeals, in the same time period, and about 22.7% of all federal appeals.
Prisoner petitions constituted 69 percent of the civil pro se caseload. Civil rights actions accounted for 14 percent of the civil pro se caseload. The majority of prisoner petitions are filed pro se. . . . from 2000 to 2019, in 91 percent of prisoner petition filings, the plaintiffs were self-represented. In contrast, only 11 percent of non-prisoner civil case filings involved plaintiffs and/or defendants who were self-represented.
From here.
A large share of filings in the U.S. Supreme Court are in forma pauperis (IFP) filings. In its 2022 annual report, the U.S. Supreme Court statistics were as follows:
The total number of cases filed in the Supreme Court decreased eight percent from 5,307 filings in the 2020 Term to 4,900 filings in the 2021 Term.
The number of cases filed in the Court’s in forma pauperis docket decreased five percent from 3,477 filings in the 2020 Term to 3,288 filings in the 2021 Term.
The number of cases filed in the Court’s paid docket decreased 12 percent from 1,830 filings in the 2020 Term to 1,612 filings in the 2021 Term.
During the 2021 Term, 70 cases were argued and 63 were disposed of in 58 signed opinions, compared to 72 cases argued and 69 disposed of in 55 signed opinions in the 2020 Term. The Court also issued seven per curiam decisions in argued cases during the 2021 Term.
From here.
About one in 470 IFP petitions are granted each term, while about one in 26 paid petitioners are granted each term. The IFP petitions are mostly, but not entirely, prisoner's petitions.
This system isn't very functional either at providing relief for prisoners who have legitimate cases, or at managing cases without merit well. Access to the courts without counsel, particularly in the contexts of claims of wrongful convictions and prison conditions, is virtually meaningless. There are wrongs to be righted, amidst legions of bored prisoners with no downside in trying, but the current process does a poor job of sorting them.
At a minimum, this issue should be re-examined in good faith in search of a better solution.
8. Judicial ethics.
I would suggest two judicial ethics reforms:
* A rule that federal judges must recuse themselves from cases where the President or former President who appointed that judge is a party in a non-official capacity.
* A binding ethics code for the U.S. Supreme Court with the power to order a judge to recuse or impose other sanctions similar to those for other judges. Some violations would be criminal offenses.
9. Jurisdiction Over Corporations.
The recently overturned rule that a corporation may be sued, in general jurisdiction, any state in which it has an office for the conduct of business or an employee, should be reinstated by statute.
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