Speeches

Chief Justice Maureen O'Connor
The Rotary Club of Columbus
May 7, 2018

(Remarks prepared for delivery on Monday, May 7, 2018, at the Boat House at Confluence Park.)

Thank you, Paul (Blevins, club president).

Good afternoon, everyone.

And thanks to the Rotary Club of Columbus for the kind invitation to speak today.

This is my first time appearing before your chapter.

My most recent Rotary address took place outside Cleveland not long ago. It is always a thrill for me to address Rotarians.

This invitation is special because I spend so much time working in Columbus and I know your club is active on behalf of charitable causes. Being the capital Rotary, I also know you are in tune with statewide issues.

Your motto, “Service Above Self,” is such a noble one. I’m sure you’re proud that Rotary International pioneered the concept of a service club more than a century ago – a non-profit organization that would bring people together – mostly business people -- for the betterment of society.

Your achievements globally are legendary, and I know you’ve been active in central Ohio for years as well – engaged with school children and helping the needy. 

President Blevins and your club leaders invited me here to give an update on the courts in Ohio.

I will start by pointing out that the mission of the judicial branch of our state government is complex. One way to explain this complexity is to expose a couple of myths, and then explain.

I hope this will give context to the work of the courts statewide.

I also hope to give each of you some hard facts that you can spring on your colleagues when you go back to work this afternoon. You can test their knowledge.

OK. Here’s Myth Number One: “The federal court system is where all the action is.”

That has to be true, right? Doesn’t the federal system grab most of the headlines?

The federal system may seize more than its share of the headlines, but here is the truth: Of all the court cases across America in a given year, 96 percent take place in state courts.

That leaves 4 percent for the federal courts.

Quiz your colleagues. These are not alternative facts. They are facts.

And of those 4 percent – more than 60 percent of federal cases involve bankruptcy. 96 percent versus 4 percent. Headline writers and other journalists might not believe this. You might not believe it.

So, consider the following: There just under 900 “Article 3” federal judges across our land, meaning judges who are appointed for life by the president and confirmed by the U.S. Senate.

In the states, there are 18,000 state court judges.

That’s a ratio of 20 to 1.

Furthermore ... state judges handle a much wider array of cases.

In general, federal courts do not exercise jurisdiction over these areas:

... the list goes on ...

Even in many instances when a federal law is at issue, a case will end up in a state court. One example would be juvenile violations of federal law.

The upshot of these statistics is that by virtue of volume and types of cases, state courtrooms touch the lives of Americans young and old ... rich and poor and in between ... in far greater measure – and much more directly – than the federal system.

In a typical year, state trial courts handle close to 100 million cases. That’s nearly one case for every three Americans.

Here’s something to think about – and to be proud about as an American: Our system of state courts makes our country unique in the world. It is a break with the European systems that our founders knew well.

I also should add that the overwhelming majority of state judges must stand for election, re-election or retention, making them directly accountable to voters. That’s another departure from the appointed-for-life federal system.

OK ... Myth Number Two. You’ve all heard this one: Judges should limit themselves to being like umpires or referees – calling balls and strikes ... or pass interference ... or tennis serves that tip the net.

Perhaps on one level – a philosophical level – the umpire metaphor works. It works if the intention is to promote the concept of judges being impartial, fact-driven, objective and guided by the rule of law. All judges should adhere to that ideal, of course.

But on an everyday level – and remember, state courts are America’s everyday courts – the metaphor doesn’t work.

Extending the umpire metaphor beyond impartiality is too simplistic and unworkable for the range of issues we confront. It sells our judges short.

And it sells short the rule of law.

Being a mere umpire doesn’t work when we’re dealing with the complexities of domestic violence, child custody or juvenile delinquency.

Judges and justices must not simply recognize and point out observance and non-observance of the law…and walk away.

To do our jobs properly, we must use our God-given intellects to levy justice ….and also remedies.

This has always been so. But it’s never been more true than today, when we in the judiciary are being called upon more and more to help people – and thus, society -- fix problems that are becoming ever-so thorny.

The bench is a place for holistic thinking. We must search for truth and justice—and a more just and workable society.

I am not making a call for a brand of judicial activism known as “legislating from the bench.” Lawmaking is the province of legislatures.

Rather, I am saying that within the bounds of the judiciary’s rights of review and rulemaking exists a role for the courts that acknowledges the complexities of life, and even death ... the uniqueness of every case ... the need for careful thought and the wise administration of justice ... and the potential for flexibility within our judicial system.

Two current issues – I’ll call them crises, because they are – illustrate my point. Remember, these are just two of many.

These are issues I have been focused on in Ohio and nationally for several years:

One is our outmoded system of fines, fees and bail, which is accurately referred to as America’s debtors’ prison problem.

The other is our opioid epidemic.

First, opioids ...

As I’m sure you’ve read, Ohio recorded 5,231 drug deaths in the 12 months ending last September, an increase of 31 percent over the prior year – which was itself an increase of a similar percentage compared with the year before that.

That’s 11 Ohioans dying, on average, every day. Only Pennsylvania (5,577) and Florida (5,516) had more drug poisoning and overdose deaths than Ohio during those 12 months.

These are grim statistics. We hear them a lot. We need to remember that these are people, fellow Ohioans ... and that numbers cannot relate the pain of the victims ... or of their loved ones, and the costs to our society.

As Rotarians you know that in the 1950s, Rotary International geared up for a decades-long fight against polio, first with iron lung machines for the afflicted, then the distribution of the Salk and Sabin vaccines.

A disease that crippled millions – including a sitting president -- was cut to 350,000 worldwide by the 1980s when the Rotary’s international PolioPlus initiative showed incredible private-sector support of a public health initiative.

More than 3 billion vaccinations later, the collective accomplishments of dedicated government and private-sector people was astonishing:

Polio was eradicated in the Americas in 1994 and barely exists today, in a few countries.

That kind of service, hard work – and education – is needed now as we fight the opioid crisis that is ravaging our state and nation.

There are differences. Polio is a virus. Opioid addiction most often begins as medication.

But the out-of-control nature of the opioid crisis causes alarm and bewilderment among our country’s leadership and citizenry, just as polio did.

There is no vaccine to stop this epidemic. Solving this crisis is more procedural than medical. We can start by believing in ourselves and thinking smart ... to create pathways out.

The court system is in the center of this situation.

Nearly two years ago, I led our dedicated Supreme Court of Ohio staff in convening a multi-state conference in Cincinnati, dedicated to fighting the opioid epidemic. We have engaged eight states that border or Ohio or are close by. It’s called the Regional Judicial Opioid Initiative.

It was the first summit of its kind in the nation. Within the past year, we’ve developed a national effort based on the model born in Ohio.

Representatives from state supreme courts, county courts, law enforcement, federal and state health authorities and aid groups have been meeting across these eight states to exchange information, develop plans and execute them.

We need to work together because doctor-shopping of legal drugs, smuggling of illicit drugs and other elements of the problem operate without regard to state borders.

We are focusing on these groups because the opioid problem is simultaneously a criminal justice, public health, family disintegration and social service crisis that needs multiple approaches and multiple solutions.

Over these 20 months our Regional Judicial Opioid Initiative has ramped up its coordination and exploration of how courts, treatment providers, and the executive and legislative branches of government can work together.

This crisis demands another kind of border-crossing….the crossing of the lines between branches of government. I can report to you that intra- and inter-government cooperation is working.

Just last week, Governor Kasich announced that “doctor shopping behavior” in the state had declined 88 percent in the last eight years, and that legal opioid doses have gone down 30 percent in seven years.

It’s a battle being fought on several fronts. For many judges, court staff and advocates, the opioid epidemic is a family problem. For example, substance abuse is a major cause of children being removed from homes in our state.

About 50 percent of the children removed from parental custody in Ohio are in homes where the parents are abusing drugs. Many counties report percentages in the 70s, 80s and 90s. Three rural counties report 100 percent.

The Public Children Services Association of Ohio found in a recent study that 97 percent of Ohio’s county welfare directors reported opioid abuse as a serious problem in their communities.

It’s a law enforcement problem, of course, because many victims begin their addictions with legally prescribed drugs. When their prescriptions run out, they turn to illegally trafficked pharmaceuticals, or illegal opioids, such as heroin and fentanyl.

In fact, in line with the governor’s details last week, deaths from prescription opioids have been falling for five straight years in Ohio, due in large part to efforts to track prescription data. This effort alone presented monumental barriers because of differing state and federal laws regarding privacy and data-sharing.

Yes, we have made a lot of progress. But I have to point out that as new solutions take hold in one area, the problem shifts to another. For example, methamphetamine use, which was declining as opioids rose, is making a comeback. This time, a lot of the “meth” being abused is imported, not home-made.

Drug abuse in America is a deep and serious problem that affects our very social fabric.

Polio was relegated to the history books, thankfully. But we should remember that 60 years ago that crisis seemed intractable, costly, and endless. It caused people to lose hope.

Let’s not lose hope over opioids. Let’s think, and act, and fight.

This situation led one of our municipal judges to say that, on many days, she feels more like a social worker than a judge.

Remedies are our mission. Mere umpiring won’t solve these problems. Our mission has changed the nature of our courts.

One answer has been specialized dockets, a term you may not be familiar with. Specialized courts are a fairly recent innovation but their use is proliferating.

It wasn’t so many years ago that a specialized docket meant a juvenile court. That was the original specialized docket.

But in 1989, Miami-Dade County, Florida, established the first recognized drug court. Ordinary courts – and procedures – were deemed inadequate for the problems there.

Ohio followed with one drug court in 1995. Then, our state started on a path to become a national leader in the specialized docket movement.

Today, in Ohio, we have more than 240 specialized dockets courts in 60 of our 88 counties.

The list is long. Get out your pencils. We have:

Ohio has the second-largest number of juvenile-specific specialized dockets in America.

It was our Specialized Dockets Section and its able staff at the Supreme Court that led the creation of the Regional Judicial Opioid Initiative.

Our Specialized Docket Section is dynamic. It provides technical and program support to trial courts, engages in best practices-outreach with them – and certifies them through their compliance with rules, and a review procedure that includes on-site visits by our staff.

These are not the courts of 20 years ago.  Society’s problems are different, the solutions are complex. And the needs are vast.

Judges have always had to be case managers. Now they also are care managers.

In fact, a juvenile court judge in Dayton came upon a novel solution to his huge docket that involves complex treatments ... and sentencing ... and counseling for scores of youths, many of whom come from broken homes with varying degrees of criminality, drug abuse or absentee parents.

He wondered if IBM’s artificial intelligence system – Watson – could help him keep track of it all. IBM responded, and Judge Tony Capizzi is now operating the first Watson-aided court in America.

When you consider the lengths to which we must go today to administer justice fairly – and efficiently – the concept of a judge as umpire almost becomes an insult.

It is my good fortune to have been elected last year as the president of the CCJ – the national Council of Chief Justices.  In 2016, I was named co-chair of the National Task Force on Fines, Fees and Bail Practices, created by the Conference of Chief Justices and the Conference of State Court Administrators.

One of the issues that I am working on with my colleagues from these organizations – and which I will continue to work on – is debtor’s prisons.

Now, think back to when you were a kid in school and your teachers were discussing nasty, long-ago institutions. Didn’t you think to yourself “good riddance” to slavery and debtors’ prisons? Didn’t you think these concepts were as dead as the Latin language?

Slavery is back, as you know, in a somewhat different form as far as the process goes. But it’s not all that different from the classical definition ... if you are the victim ... if you are the slave.

The same is true of debtor’s prisons. America long ago abolished the practice of incarcerating citizens for personal debts. But now the poor are being locked up for legal debts incurred on them by their governments. The process is different, but the result is the same for the prisoner.

We are placing fellow Americans behind bars because they are poor. This is wrong. As Americans, we are better than that, and we need to act as if we are better than that.

Debtor’s prisons have been an American problem for years. The problem has been growing in recent decades as many towns, cities and suburbs have struggled to make financial ends meet and have come to view their local courts as an ATM. They see their courts as source of income instead of justice. Bail often operates in a similar, punitive way.

A breakthrough moment in the fines, fees and bail arena came in 2015 when the U.S. Department of Justice issued a report about the civil disturbances that engulfed the town of Ferguson, Missouri, the prior summer after the death of Michael Brown by police.

The Justice Department called out the Ferguson Municipal Court for its “pattern or practice” of ... and I quote here:

“Focusing on revenue over public safety, leading to court practices that violate the 14th Amendment’s due process and equal protection requirements.”

The report went on to observe that: “Minor offenses can generate crippling debts, result in jail time because of an inability to pay, and result in the loss of a driver’s license, employment, or housing.”

In 1983, the U.S. Supreme Court ruled in Bearden versus Georgia that these kinds of practices – particularly incarceration – are not acceptable unless the courts have assessed the citizen’s ability to pay at sentencing and concluded that he or she can pay – but is refusing to do so.

Certainly, people convicted of crimes should face consequences for their behavior, and that may include a monetary sanction.

But justice is not served when fines or fees are assessed to citizens who cannot afford to pay.

There are countless examples of individuals – even couples – who have been locked up for non-payment of fines that in some cases start out at levels you and I would deem low: $50 or $75. But failure to pay on time can increase the costs exponentially.

In the meantime, by being placed in jail, the offender can lose his or her job, and then miss a car or apartment payment. The financial snow ball keeps rolling. Children can be affected. So, too, future employment. And, in the end, the court may not collect its fines.

I am happy to say that this problem has been receiving attention in many quarters and from many sides of the political aisle, from the ACLU, which has been advocating about this problem for years, to the Buckeye Institute, which released a report last week that said, quote, “the current, cash-centric system must be replaced with a proven, risk-based system ….” These groups and others have called for legislation to fix this problem.

For our part, the Supreme Court’s Judicial College is offering an on-line course on fines, fees and court costs for judges. And we have issued bench cards instructing judges about fair administration of justice when it comes to fines, fees and bail. Just as important, we’re talking about this issue and presenting it to the court of public opinion.

Our society functions best with openness and dialogue. I would add to that, a hopeful outlook – like the Rotary’s.

When coupled with well-developed strategies by leaders and professionals, and with education ... positive change for our society can result from the right outlook and attitude.

Rotary sees itself as an organization where, quote, “Neighbors, friends and problem-solvers share ideas, join leaders and take action to create lasting change.”

That’s a grand mission and, I believe, an achievable one, for the many challenges we face together, and the ones I told you about today.

I know I can count on you to avoid losing hope. So please spread around that Rotary can-do attitude.

If we become so cynical about humanity and people in trouble, then these crises and others will never end, and we will continue to lose more people to drugs and unfair incarceration.

Thanks again for inviting me, and I’ll be happy to take your questions.

God Bless.