Cost of Justice: $42,000 an Hour

Is Hamilton County prosecuting too often?
By Eli Braun

Warped justice: Unnecessary prosecutions drive up costs. Photo by Eli Braun.

“ ‘Small potatoes’ is no defense,” a judge tells a defendant in a recent New Yorker cartoon. And while “small potatoes” might be a poor defense, it might be reason enough to keep a case out of court.
That’s the thrust of a new study on the cost of prosecuting criminal defendants in Hamilton County. The study, which I helped research for the Ohio Justice & Policy Center (OJPC), asks the question: How much does it cost taxpayers to put people on trial, from their initial detention to a conviction or acquittal? The OJPC study only counted adult cases and excluded juvenile cases. It also excluded the costs of civil cases, policing (except testimony in court by police) and corrections. Generally, if a program did not deal directly with adult criminal defendants, it wasn’t counted.
The result was astounding: For every hour the Hamilton County Courthouse was open for adult criminal cases in 2008, taxpayers put up $42,000. That’s just under $400,000 per weekday and $2 million per week.
The cause, in part, is a flood of small-potatoes cases. Hamilton County files twice as many misdemeanor cases annually as Franklin County – despite comparable population size and demographics. The misdemeanor filing rate is 1 per 23 people in Hamilton County and 1 per 45 in Franklin County. In fact, Hamilton County’s misdemeanor filing rate far exceeds Franklin County’s even after excluding cases stemming from Cincinnati’s regressive marijuana ordinance (see “Cincinnati’s Marijuana Law Fiasco,” issue of May 15-31).
‘Flooding the system’
Such heavy misdemeanor caseloads carry enormous costs – not just for taxpayers’ wallets but for the city’s workforce and for the entire community’s safety. The study highlights three points.
First, during this economic downtown, counties have come to understand that prosecuting petty infractions such as loitering, open containers of alcohol and curfew violations can often lead to expensive prosecutions. OJPC undertook the study, as the report explains, because “policymakers and taxpayers should understand the economic impact of misdemeanor arrests and subsequent court functions.”
Second, regarding social impacts beyond money, an excessive misdemeanor caseload needlessly creates a large class of former offenders. The over-criminalization of “small potatoes” cases ends up scarring petty offenders as criminals, who then face barriers to jobs and education.
Third, excessive caseloads prevent public-safety officials and prosecutors from identifying truly important cases. The study offers an analogy from Janet Moore, a former senior staff attorney at OJPC. Moore compares the county’s criminal justice system to a resource-intensive, resource-scarce hospital emergency room.
“Flooding the system with lower-level misdemeanor cases is equivalent to swamping the ER with head colds and nosebleeds,” she says.
It’s not easy to find the patient with a heart attack when the waiting room is full of minor cases – patients with little more than a sniffle, patients who should not be patients.
The study continues, “In addition to obscuring the important cases, the flooded system makes it harder for judges, prosecutors, defenders and jail personnel to implement evidence-based best practices, such as risk/needs assessments and diversion programs that improve public safety.”
The most concrete of these three considerations, of course, is the first: money, and it’s the principal subject of the OJPC study. The study aggregated expenditures spread across city and county departments in an unprecedented effort to calculate the full financial burden of court prosecution. In its own words, the study “provides hard numbers to substantiate the expense of pre-conviction operations and to provide an impetus to seek less costly alternatives like mediation.”
In the end, the judicial budget made other county expenditures look like small change.
The $100 million that the county spent on adult criminal prosecutions – at a rate of $42,000 per hour – was three-and-a-half times larger than what the county spent on public works. Public works includes storm-water management and road, bridge and highway maintenance.
It was nearly 14 times larger than what the County spent on environmental functions, including solid waste, air quality and litter management.
It was also 1.35 times larger than what many residents see as the county’s bloated recreational activities budget. In 2008, these courthouse expenses exceeded the city’s expenditures on Paul Brown Stadium, Great American Ballpark, Cincinnati Museum Center, the Zoo and even the riverfront development project – combined.
Mediation steps up
The problem is not that court budgets are bloated; it’s that the demand is too high. Simply cutting office budgets would therefore prove disastrous. In fact, the county’s public defender is already under-funded, according to a 2008 report by the National Legal Aid & Defender Association (see “The Best Justice You Can Afford,” issue of September 1, 2008).
Their report, Taking Gideon’s Pulse, found that misdemeanor staff attorneys in Hamilton County handle nearly 2.5 times the caseload recommended by national standards – the equivalent of 30 attorneys handling the work of 74. On average, in 2008, a Hamilton County public defender spent just one hour and 42 minutes per misdemeanor case, including trials.
A system can reduce costs by reducing the demand on courthouse functions, which could be as simple as reducing the number of cases filed in court. The county could revise its unusually draconian charging and prosecuting decisions to mirror those of Franklin County or other counties, or it could take steps to intercept small-potatoes cases before they reach the courtroom.
One promising strategy has been mediation. Hamilton County approved mediation services in 1974 through a joint city-county effort. Thousands of misdemeanor cases were referred annually. Of these referrals, 80 to 90 percent were successfully diverted from court, with low recidivism rates. Diverted cases included assault, criminal damaging, trespassing, disorderly conduct and telecommunication harassment. In 2008 there were 14,399 cases in these categories – nearly 40 percent of the annual misdemeanor caseload – that were potentially eligible for mediation services.
Despite these successes, pre-filing diversion to mediation in misdemeanor cases was effectively eliminated during the recent economic crisis.
Yet mediation might be back on Hamilton County’s horizon. With a grant from the Ohio State Bar Foundation, a group of stakeholders will implement a mediation program over the next few years. The working group includes faith-based organizations, law enforcement, prosecutors, defense attorneys, the courts, OJPC, the YWCA and the Cincinnati Bar Association.
The Cincinnati Mediation Project “uses trained volunteers overseen by professionals to bring low-cost/no-cost dispute resolution services and education on mediation skills to high-need neighborhoods,” according to a recent program announcement. It works both “to address conflicts before they rise to the level of a police call” (conflict prevention) and to divert cases that do enter the criminal justice system (dispute resolution).
“The criminal justice system is at capacity. You can’t consider new ideas when you’re struggling to complete what you’re mandated to do,” says Paul Komarek, the project’s director. The mediation program adds “players, resources, and techniques that are not currently available,” and most important, says Komarek, changes “who we think of as the consumer.”
With $100 million at stake, disagreements might seem inevitable. But reforming an expensive court system need not pit one group against another. A system that diverts small-potatoes cases – or diffuses them before they become cases – benefits the entire community. Petty disputes would not need to assemble a judge, a bailiff, defense attorneys, prosecutors, sheriff’s deputies and other court personnel. With a smaller caseload, prosecutors could focus on tough cases and county leaders could invest in other priorities. Such a system could truly achieve, in the words etched above the courthouse pillars, “the first end and blessing of social union.”
The study, “$42,000 for a Courthouse Hour: The Cost of Processing Adult Criminal Cases in Hamilton County, Ohio,” can be found at cost.pdf