Special Courts - History

Special Courts - History

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Special courts - federal courts which were created by Congress to hear specific types of cases. Sometimes called "legislative courts," they include: the Court of Military Appeals, the Claims Court, the Tax Court, territorial courts, and the courts of the District of Columbia.

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Are special courts for military veterans fair?

Veterans treatment courts have sprung up in recent years, providing an alternative to the traditional justice system for war veterans with mental health problems. These special courts offer a second chance to criminal defendants who suffer from the negative consequences of military service, including PTSD, traumatic brain injuries, and substance abuse. But these issues are not unique to veterans. Are veterans courts a form of preferential treatment, or repayment of a national debt to those who served?

What is veterans court?

Veterans treatment courts emerged from a 2008 meeting hosted by the Center for Mental Health Service and attended by representatives from law enforcement, corrections, the courts, community groups, federal agencies, and veterans’ health and advocacy groups. The intent is to keep honorably discharged war veterans out of jail by providing treatment as an alternative to incarceration in cases where mental health issues like PTSD, brain trauma, and addiction are factors.

One in five veterans shows symptoms of a mental health disorder or cognitive impairment. Trauma experienced during military service can be the root cause or a trigger for these symptoms, but many veterans go undiagnosed and untreated.

Veterans treatment courts allow honorably discharged veterans who plead guilty to receive an intensive probationary sentence – including regular court visits and mental health or substance abuse treatments – in lieu of jail time. Promising early results from veterans’ courts have prompted Illinois to require every judicial circuit in the state to establish a veterans’ court.

Should treatment courts be standard?

Despite the apparent effectiveness of veterans treatment courts, they have their detractors. The number of veterans involved in the court system in rural communities is often too small to justify the expense of a separate court. And the ACLU in Illinois has questioned the fairness of diverting resources to serve one group of offenders over others, arguing that it’s more effective to provide better access to mental health treatment throughout the court system.

They may have a point. Recidivism rates nationwide are alarming – roughly two out of three convicts are rearrested within three years. If incarceration is a revolving door that only serves to enlarge private prison profits, shouldn’t more effective mental health programs be pursued wherever possible?

The rate of mental health disorders among veterans is actually no higher than that in the regular population. Approximately one in five adults in America experiences mental illness. This means that mental illness is likely a factor in criminal cases involving veterans and nonveterans at roughly similar rates. Expanding treatment courts to nonveteran offenders with similar profiles – such as low-level felons suffering from PTSD and addiction – might be a cost-effective way to reduce pressure on overcrowded prisons, decrease recidivism, and bolster underfunded mental-health programs.

Court of Appeals for Veterans Claims

"The United States Court of Appeals for Veterans Claims is a national court of record, established under Article I of the Constitution of the United States. The Court has exclusive jurisdiction to provide judicial review of final decisions by the Board of Veterans' Appeals, an entity within the Department of Veterans Affairs.

"The Court provides veterans an impartial judicial forum for review of administrative decisions by the Board of Veterans' Appeals that are adverse to the veteran-appellant's claim of entitlement to benefits for service-connected disabilities, survivor benefits and other benefits such as education payments and waiver of indebtedness. In furtherance of its mission, the Court also seeks to help ensure that all veterans have equal access to the Court and to promote public trust and confidence in the Court."

Decisions are available through the official webpage from 1989-present.

What is special about special courts?

The legislature has introduced special courts on many occasions through various laws, usually with the intention to enable quick and efficient disposal of cases. But an examination of the laws that require setting up of special courts compared to the actual numbers that have been set up reveals the extent to which reality and intent are mismatched.

In a short study by Vidhi Centre for Legal Policy, 764 Central laws enacted and amended between 1950 and 2015, excluding laws that were repealed in this period or that may have been amended after 2015, were examined to determine the frequency of their occurrence. We looked in these statutes for only mentions of ‘special’ or ‘designated’ courts or judges, that is, courts or judges established to ensure effective trial and that have powers of district or sessions courts. Forums like quasi-judicial bodies, tribunals, and commissions were excluded. It was found that only three statutes provided for special courts between 1950 and 1981, whereas between 1982 and 2015, 25 statutes mandated the establishment of such courts.

What are the reasons for this drastic change in legislative policy? The five-year period from 1982 to 1987 witnessed an unexplained spurt in the number of laws creating special courts. A similar increase was seen between 2012 and 2015. Several such courts were created in response to specific incidents. For instance, the 1992 securities scam led to the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992. The largest number of special/designated courts were created between 1982 and 1992. However, there is no categorical rationale for these developments.

Setting up and designating special courts

Laws interchangeably use the terms ‘set up’ or ‘designate’ with respect to special courts. Setting up a special court may require new infrastructure and facilities, whereas a designated court merely adds additional responsibilities to an existing court. In our study, of the 28 statutes enacted between 1950 and 2015, three provided for both, 15 ‘set up’ special courts, and 10 empowered the competent authority to designate a court. However, implementation of the law does not necessarily follow this distinction between setting up and designation. Despite providing for ‘setting up’ special courts, State governments have designated courts under most of the legislations. Out of the 15 statutes which specifically provided for ‘setting up’ of special courts, only one has been enabled with them by few States.

Based on the nature of legislation and primary subject matter dealt with, we divided the statutes into five clusters of economic offences, regulatory offences, law and order, social justice, and national security. The objective of special courts has been unclear. It is not very revealing whether specific legislations which provide for special courts necessarily intend quick disposal of cases. The statutes which have been recently enacted, mostly those falling under the cluster of economic offences, have provisions for special courts although older legislation, like the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, or the Narcotic Drugs and Psychotropic Substances Act, 1985, have a huge backlog of cases waiting to be cleared.

We studied three statutes from three clusters, based on the availability of data, to observe the nature and frequency of institution of ‘special courts’: The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (POA), 1989 National Investigation Agency Act, 2008 (NIA Act) Prevention of Corruption Act, 1988 (POCA).

The pendency rates in courts for cases filed under POA are huge. While the national average is 84.1 per cent, States like Maharashtra and West Bengal have pegged their respective pendency rates well above the average. The number of cases being registered from these States has also been significant. However, the absence of exclusive courts in these States has been stark. On the contrary, there have been several special courts and fast track courts being set up under POCA although the total number of cases registered is nearly 1/10th of cases under POA. Under the NIA Act, in spite of mandating special courts, all the courts set up have been designated courts.

From the available data, it is fairly conclusive that there is no exclusivity in ‘special courts’. Laws enacted in the last three decades have considered special courts as quick remedy for questions of delays in trial. However, a striking absence of number of ‘special courts’ set up provides a glaring contrast to such an objective. Notably, in most instances where existing courts are designated as special courts, the original intent of speedy disposal of cases seems to have been defeated. Questions of pendency have often surfaced, thereby rendering the point of efficiency of the institution moot. Absence of rationale in both selective insertion of provision for special courts and actual setting up of courts appears to have rendered the notion of special court superfluous.

Poor quality or complete absence of data remains a major concern for this study. Official websites (for instance, nodal ministries) did not always have the latest updated versions of statutes. The status of these laws is difficult to assess as information about the number of courts set up or designated under various laws is not always available.

However, this study does reveal much scope to expand the areas of enquiry for research. For instance, what is so special about special courts if they only provide an additional forum to dispose cases? Is this purpose still served if existing courts are merely designated as special courts without any new infrastructure being created? Can inferences be drawn about the state of the judicial system where special courts have been introduced by way of amendments to parent laws? Is the legislature monitoring the health of special courts and examining whether their original stated purpose continues to be served? These are questions which future studies could explore.

Sakshi is a Research Fellow at the Vidhi Centre for Legal Policy, New Delhi. Views are personal.

Probation and Pretrial Services Milestones

President Calvin Coolidge signs the Probation Act of 1925, establishing probation as a sentence in the federal courts.

The first federal probation officer, Richard McSweeney, is appointed in the District of Massachusetts.

Congress creates the National Parole Board and amends the Probation Act to give officers responsibility to supervise federal parolees.

The first issue of the scholarly journal Federal Probation is published.

The first policy monograph, The Presentence Investigation Report, tells officers how to conduct presentence investigations and prepare reports.

Officers take on the duty of investigating the parole plans of Army and Air Force prisoners and supervising them following release from disciplinary barracks.

A national training center is established in Chicago to provide officers with orientation and refresher training.

Officers form their own professional organization, the Federal Probation and Pretrial Officers Association.

The Judicial Conference of the United States forms a permanent committee—the Committee on the Administration of the Probation System—expressly to address probation system issues.

Pretrial services agencies are established as an experiment in ten districts.
The Judicial Conference of the United States adopts a policy that allows each district court to decide whether officers carry firearms.

Early policies discouraged officers from carrying firearms and suggested that doing so was inconsistent with probation work--that in supervising individuals, officers assumed a helping role, not a law enforcement one. In the 1970's, however, the Judicial Conference began to see circumstances in which arming officers might be prudent. The 1975 policy statement still presumed that officers should not be armed--unless their assignments subjected them to serious risk of physical harm. A decade passed before the Judicial Conference addressed the matter of firearms training. In 1987, in two-week training sessions held in Tuscaloosa, Alabama, and Galveston, Texas, the system's first firearms instructors were trained to teach firearms handling and safety in their respective districts.

Congress gives the Director of the Administrative Office of the U.S. Courts the authority to provide contract aftercare treatment services to drug-dependent persons under probation system supervision.

Before this time, the Attorney General had the authority to provide specialized programs and community aftercare for all drug-dependent defendants and offenders. In 1979, the Administrative Office began administering the national Substance Abuse Treatment Program to guide officers in identifying and treating substance abusers under their supervision. Substance abuse specialist positions were created in 1983 to provide intensive supervision to substance abusers. In 1986 and 1987, Congress expanded the Director’s contract authority to include services for alcohol-dependent offenders and offenders requiring psychiatric treatment.

President Ronald Reagan signs the Pretrial Services Act, which authorizes expansion of pretrial services to each district court.

The Bail Reform Act allows judges to consider danger to the community as a factor in deciding whether to release or detain persons awaiting trial.

The Bail Reform Act radically changed the pretrial process in that it permitted courts to detain dangerous defendants. Previously, courts did not consider danger to the community in deciding whether to release or detain persons awaiting trial. This new development increased the number of persons detained to such an extent that, within a few years, the nation faced a national pretrial detention crisis. The increase in detention rates affected where defendants were housed while awaiting trial and when trials were scheduled. It hampered access to defendants by pretrial services officers and other parties in the criminal justice process. As a result of the situation, the Judicial Conference of the United States implored Congress to provide sufficient funding for adequate housing and supervision of pretrial detainees and encouraged use of alternatives to incarceration for some defendants, including community supervision and home confinement.

The Sentencing Reform Act fundamentally changes the sentencing process in the federal courts.

The Sentencing Reform Act of 1984 was passed in response to congressional concern about fairness in sentencing. The Act completely changed the way courts sentenced federal offenders. The Act created a new federal agency, the U.S. Sentencing Commission, to set sentencing guidelines for every federal offense. When federal sentencing guidelines went into effect on November 1, 1987, they significantly altered judges’ sentencing discretion, officers’ preparation of the presentence investigation report, and officers’ overall role in the sentencing process. The new sentencing scheme also placed officers in a more adversarial environment in the courtroom, where attorneys might dispute facts, question guideline calculations, and object to the information in the presentence report. In addition to providing for a new sentencing process, the Act also replaced parole with "supervised release," a term of community supervision to be served by prisoners after they completed prison terms.

U.S. Probation Officer Thomas Gahl (Southern District of Indiana) is killed in the line of duty.

On September 22, 1986, U.S. Probation Officer Thomas Gahl was slain by a mentally ill parolee under his supervision. Officer Gahl, who was 38 years old, was gunned down during a routine home visit. His death–the first and, to date, the only, officer line-of-duty death in the system–underscored the risks inherent in supervising an increasingly dangerous offender population and the critical importance of officer safety training.

The home confinement program is launched in the federal courts.

The Special Curfew Program was the federal courts’ first use of home confinement. It was part of an experimental program–a cooperative venture of the Bureau of Prisons, the U.S. Parole Commission, and the federal probation system–as an alternative to Bureau of Prisons Community Treatment Center (CTC) residence for eligible inmates. These inmates, instead of CTC placement, received parole dates advanced a maximum of 60 days and were subject to a curfew and minimum weekly contact with a probation officer. Electronic monitoring became part of the home confinement program several years later. In 1988, a pilot program was launched in two districts to evaluate the use of electronic equipment to monitor persons in the curfew program. The program was expanded nationally in 1991 and grew to include offenders on probation and supervised release and defendants on pretrial supervision as those who may be eligible to be placed on home confinement with electronic monitoring.

Probation officers begin to receive for supervision persons sentenced to serve a term of supervised release.

Phasing out parole and tightening sentencing requirements changed community supervision. The introduction of supervised release and increases in drug prosecutions and other serious cases caused a shift away from probation cases. As a result, most persons who came under supervision of federal probation officers had not been sentenced to probation, but sentenced to prison terms to be followed by community supervision.

The Judicial Conference of the United States adopts a policy requiring updated background investigations for officers and officer assistants.

The Judicial Conference of the United States adopts a workplace drug testing program for officers and officer assistants and a zero tolerance policy for the use of controlled substances.

Officers take on responsibility to obtain DNA samples from persons under their supervision who have been convicted of certain crimes.

The Judicial Conference of the United States adopts medical requirements and guidelines for officers and officer assistants.

A national training academy for new officers is established at the Federal Law Enforcement Training Center (FLETC) in Charleston, South Carolina.

In partnership with FLETC, the Administrative Office of the U.S. Courts launched a national training academy for officers. The academy provided the means to offer new officers training as soon as possible after they were appointed by their courts and to provide them with comprehensive and uniform training. In addition to new officers, the academy offered an ideal environment for training officers who served as firearms and safety instructors in their districts.

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Special Courts for Veterans Languish

Eric Gonzalez says he doesn’t remember getting pulled over, nor does he remember evading his arrest in Fullerton, California. The only thing he knows is that he woke up very hungover and faced up to nine years in prison for assaulting a police officer, along with five other charges.

Gonzalez, however, was on active duty in the U.S. Marine Corps when he was arrested in 2012, and thus eligible for an alternative: a veterans treatment court that helps service members charged with misdemeanors and some felonies avoid incarceration, if the crime is related to a mental health issue or drug dependency.

For nearly a year in the veterans treatment court program he went to therapy, sobered up and finished his schooling. He’s out of the military and now works as an audio engineer.

“When I say [the program] changed my life,” he said, “I mean it.”

Corporal Eric Gonzalez, USMC, tells the story of how a Veterans Treatment Court saved his life during a speech at the inaugural Justice For Vets Veterans Treatment Court conference in Washington, D.C, in 2013.

Paul Morigi/AP Images for The National Association of Drug Court Professionals

But to take advantage of it he had to relocate to a neighboring county, away from his friends and family. There was no veterans treatment court near his home in San Bernardino County.

While almost all of the more than 3,000 counties in the U.S. have established specialized courts for drug addicts and the mentally ill, veterans courts have languished because of a lack of financial support, reliance on volunteer judges and low usage. Only about 500 counties have opened vet courts since the first ones in 2008.

The Marshall Project contacted 35 courts in counties with large concentrations of veterans and found that few see more than a couple dozen cases a year. One Iowa veterans court has tried 10 cases since 2015.

“In order for this to work, there needs to be a combination of several different things: primarily a judge who’s interested and a county attorney who’s open-minded,” said Jeffrey Paulson, the presiding judge who volunteers once a week to oversee the veterans treatment court in Woodbury, Iowa. “It’s got to be a labor of love.”

Because the courts are newer and there are so few, research on their efficacy is scarce. Anecdotally, among participants, the courts seem to work. But there’s been only a small handful of studies done over the past few years that have shown varied results with lowering recidivism among veterans who attend the courts compared to civilians.

“This veterans court model evolved like many of the other specialty courts, just out of [judges who] believed there was a need from what they saw in their courtrooms… and it spread without scientific evaluation,” says Julie Baldwin, associate director for research for justice programs at American University in Washington D.C. “To say one veterans treatment court works doesn’t mean they all work.”

There are almost 200,000 veterans incarcerated in American prisons and jails, according to the Bureau of Justice Statistics. A third of those served in Iraq and Afghanistan, two operations that have resulted in what many refer to as “invisible wounds,” such as post traumatic stress disorder and mild traumatic brain injuries. These cognitive disorders are known to increase drug usage and alcoholism, and tens of thousands of veterans or active members are incarcerated for drug possession or other misdemeanor crimes each year.

For veterans or active service members to qualify for the court they must have a mental health condition related to their deployment in an active battle zone. Prosecutors work with defense attorneys to negotiate whether the case should be heard in the treatment court, and service members go through counseling funded by the Department of Veterans Affairs. Once they are finished with the program, which can last from a few months to years, all charges are dropped.

President Trump last year signed off on $20 million in grant funds through the Bureau of Justice Assistance for treatment courts, and both President Barack Obama and President George W. Bush pushed for greater funding, as well.

But the veterans treatment courts haven’t disseminated to areas where there might be the most need, especially in rural areas, says Baldwin, who co-authored a paper calling for the courts to be more critically scrutinized. Nine states have no veterans treatment courts at all, according to the National Center for State Courts, and some have only one, forcing some users to travel hundreds of miles.

In West Virginia, Republican state Sen. Ryan Weld (also an Air Force Reserves captain) pushed for veterans courts statewide in a bill this year. A handful of courts existed in the state’s northern panhandle until last year when the state supreme court abolished them, citing cost concerns.

“I think it’s important that instead of finding these people guilty, convicting them of a crime and incarcerating them, it’s important to try and find a root cause of what brought them to this point,”said Weld, once an assistant prosecutor.

In North Carolina, where there are four courts, Tommy Rieman, a former Army staff sergeant who was charged with driving under the influence, had to travel two hours every week for his court dates near Fort Bragg, 125 miles from where he lived in Charlotte.

“North Carolina is supposed to be this amazing state that is supportive of the military,” Rieman said, adding that the time and travel costs often put him in a financial bind.

But even where the courts have expanded, usually through the initiative of judges, there sometimes is little demand for them.

In Springfield, Missouri, the veterans court has seen 43 cases in the past six years. That’s primarily because the 9,000 veterans who live in the area are almost all retired and older, says Rhonda Ledbetter, the county’s court coordinator.

Even in counties that have a younger population, such as Phoenix or Dallas, few people go through the courts.

In San Diego and Seattle, both hubs for the U.S. Navy, only 200 cases have been heard in the past seven years—combined.

Some court administrators point to limitations on what cases can be heard, which vary from county to county. A felony that might make someone eligible in one jurisdiction, for example, would disqualify them in another.

Terree Schmidt-Whelan, executive director of Pierce County Alliance, which keeps records for the district court in Tacoma, said that because their program only takes on certain misdemeanors—the low hanging fruit, essentially—the total number of service members their court sees is drastically fewer than what they want.

In Bell County, Texas, north of Austin, the veteran population accounts for 9 percent of those who come into contact with the criminal justice system and 18 percent of probationers.

“That’s double the national average,” according to Todd Jermstadt, director of community supervision for Bell County’s Department of Corrections. He also works with the county’s veterans treatment court, which has tried 177 cases in the last three years.

“I don’t get it,” he said. “Those numbers are just so low, I can’t fathom. Why aren’t we seeing these people? They’re out there. It’s not that hard to find veterans in Bell County.”

U.S. Court of Appeals for the Armed Forces

The U.S. Court of Appeals for the Armed Forces has appellate jurisdiction over members of the armed forces on active duty and those subject to the Uniform Code of Military Justice. Five civilian judges appointed for 15-year terms by the President comprise the court. The court's cases address legal issues such as constitutional law, criminal law, ethics, administrative law and national security law. Decisions by the court are subject to review by the U.S. Supreme Court. The court has a significant impact on discipline in the armed forces, military readiness and the rights of service members. A brochure about the court is available online.

History: Superior Court Special Session Commemorating the 175th Anniversary of the Creation of the Court

The Superior Court by the Honorable Henry duPont Ridgely, the Honorable Clarence W. Taylor, the Honorable Richard R. Cooch, F. Alton Tybout, Esq., and Kevin J. O'Connell, Esq.

Superior Court's 175th Anniversary Commemoration

The 175th anniversary of the court's creation under the Delaware Constitution of 1831 was commemorated with a Special Session of the Superior Court.

Delaware judges, government officials, and distinguished guests gathered for the celebration at the historic New Castle County Courthouse, in New Castle, Delaware on April 9, 2007.

To learn some little known facts about the early days of the court and the people involved, read the complete 175th Anniversary Ceremony transcript.

Although Superior Court's heritage can be traced back more than 339 years to December 6, 1669, our law courts which represent today's Superior Court jurisdiction, were decreed under the Constitution of 1831.

The law courts included Superior Court, which heard civil matters, the Court of General Sessions, which heard criminal matters, and the Court of Oyer and Terminer, which heard capital cases and consisted of all four law judges for the other two courts.

Excerpt from the event April 9, 2007 commemoration:

"Today, Monday, April 9, 2007, marks the 175th Anniversary of the first session held by the Superior Court. Resident Judge Samuel M. Harrington, one of the original Superior Court judges appointed after approval of the Constitution of 1831, recorded in Volume 1 of his reports &ndash and I quote.

'The Superior Court held its first session at Georgetown in Sussex County on Monday, the 9th of April 1832.'

This special session today is being held to commemorate this milestone in the Court's history,"

President Judge James T. Vaughn Jr.

Juvenile court

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Juvenile court, also called children’s court, special court handling problems of delinquent, neglected, or abused children. The juvenile court fulfills the government’s role as substitute parent, and, where no juvenile court exists, other courts must assume the function.

Two types of cases are processed by a juvenile court: civil matters, usually concerning care of an abandoned child or one whose parents cannot support him and criminal matters arising from antisocial behaviour by the child.

Most statutes provide that all persons under a given age (18 years in many places) must be processed initially by the juvenile court, which can then, at its discretion, assign the case to an ordinary court.

The idea behind the juvenile court system is that children should be treated with special care. Its originators considered it futile and unjust to punish a child for wrongdoing, preferring rehabilitation instead. To accomplish this, the court operates informally and paternally.

The first juvenile court was established in 1899 in Chicago, and the movement spread rapidly throughout the world. Juvenile courts are now found in Europe, Latin America, Israel, Iraq, Japan, and other countries, although there is variation in structure and procedures.

There has been much disagreement, especially in the United States, over whether the juvenile court’s informality helps or hurts children. Some argue that, with crowded court calendars and incompetent judges, the court’s purpose is thwarted and that the child is stripped of the rights of criminal defendants with no corresponding relaxation in severity of treatment. In response to this, courts in the United States have extended to juveniles such rights as the right to cross-examine witnesses, the right to fair notice of hearings, the privilege against self-incrimination, and the right to legal counsel.

This article was most recently revised and updated by Naomi Blumberg, Assistant Editor.