Brian J. Ostrom

The Predictability of Punitive Damages

Using one year of jury trial outcomes from 45 of the nations most populous counties, this article shows a strong and statistically significant correlation between compensatory and punitive damages. These findings are replicated in 25 years of punitive damages awards from Cook County, Illinois, and California. In addition, we find no evidence that punitive damages awards are more likely when individuals sue businesses than when individuals sue individuals. With respect to award frequency, juries rarely award punitive damages and appear to be especially reluctant to do so in the areas of law that have captured the most attention, products liability and medical malpractice. Punitive damages are most frequently awarded in business/contract cases and intentional tort cases. The frequency‐of‐award findings are consistent with all major studies of punitive damages.

Using Risk Assessment to Inform Sentencing Decisions for Nonviolent Offenders in Virginia

Virginia has abolished parole and adopted truth-in-sentencing guidelines for persons convicted of felonies. As part of this reform, the Virginia Criminal Sentencing Commission developed a method for diverting 25% of nonviolent, prison-bound offenders into alternative sanction programs using risk assessment to identify the lowest risk offenders. This article describes an evaluation of the effectiveness of this instrument, used by judges at the time of sentencing. It serves to advance an understanding of the factors associated with recidivism and the policy implications of using risk assessment to divert offenders from incarceration at a time when states are facing fiscal challenges.

Improving the Pace of Criminal Case Processing in State Trial Courts

Delay in the processing of criminal cases has long been viewed as a serious national problem. Substantial differences exist among courts in the average time it takes to resolve both felony and misdemeanor cases, with past research producing inconclusive results on the causes of observed variation. In response, and with the support of the Arnold Foundation, the objective of this article is to highlight predictable variation in the timeliness of criminal case processing and how this knowledge supports court efforts to become more expeditious. Drawing on an extensive set of felony and misdemeanor cases resolved in seven Colorado courts, statistical analysis uncovers important patterns in the composition of criminal caseloads and clarifies how composition influences case duration. Moreover, similarities in the makeup of criminal caseloads show the utility of fundamental principles of criminal caseflow management and how courts benefit from being assessed comparatively against established performance benchmarks.

A Tale of Two Laws: The U.S. Congress Confronts Habeas Corpus Petitions and Section 1983 Lawsuits

Actions by state prisoners have comprised a large and growing body of litigation in the U.S. federal courts over the past thirty years. State prisoners can challenge the validity of their state trial court convictions (habeas corpus petitions) and the constitutionality of the conditions of their confinement to state prisons and jails (Section 1983 lawsuits). Currently, one out of every five civil cases filed in the federal system is brought by a jail or prison inmate. When in the past did these cases begin to arise? What is the present trend? What does the future hold concerning the number of cases likely to be filed? These questions are at the heart of the current research. Care is needed in addressing these queries because it is neither easy nor obvious to know what propels the volume of litigation. Moreover, the future is especially difficult to predict in light of recent legislation adopted by the United States Congress to limit the number of habeas corpus petitions and the number of Section 1983 lawsuits filed each year. The unique contribution of the current research is threefold. First, an improved methodology is used to describe past patterns and to forecast future trends. Simply stated, prisoner litigation is hypothesized to be related to the number of prisoners. As the number of prisoners increases, the volume of litigation increases proportionately. What is not obvious about this relationship is that it has persisted over the past decades despite substantial changes in legal doctrines designed to affect the filing of the litigation. Second, the effects of two major congressional actions passed in 1996 to limit prisoner litigation are examined and assessed for their success in achieving their intended objectives. The first of these, the Antiterrorism and Effective Death Penalty Act, which sought to restrict habeas corpus petitions, is judged to have virtually no impact. The second piece of legislation, the Prisoner Litigation Reform Act, which sought to curtail lawsuits against correctional officials, appears to have lowered the volume of litigation in the short-term, but has not disrupted the underlying link between the number of prisoners and the number of awsuits. Finally, estimates are made of the future volume of litigation and the corresponding number of federal judges needed to resolve prisoner litigation. These estimates have the advantage of being based on significant statistical relationships and accounting for the effects of recent congressional action.

The Collapse in Contract Case Filings Since 1991

AbstractAfter increasing for many years, contract cases in state general jurisdiction courts dropped substantially in 1992, 1993, and 1994. Limited jurisdiction civil court and small claims court cases, which are mostly contract, dropped by modest amounts in 1991-93, again after many years of growth. Federal contract actions also declined substantially. We argue that a direct link exists between economic performance and the volume of contract filings. Thus, a likely explanation for the recent decline in contract cases is the economic recession that occurred from mid-1990 to mid-1992.

So the verdict is in—What Happens Next? The Continuing Story of Tort Awards in the State Courts

AbstractFor both scholars who seek to understand the civil litigation process and reformers who seek to change the civil justice system, decisions by juries are a central focus of attention. Juries have assumed a special significance because they often are viewed as the ultimate arbiters of civil disputes. Yet, this conceptualization is but one chapter in the continuing story. Posttrial negotiation and litigation offer clear means to challenge the trial court verdict and are pursued in a sizable number of cases. This article expands our knowledge of the litigation process by clarifying the relationship between cases that end following the trial court verdict and those that undertake some form of posttrial activity. Using data on bench and jury trials from 27 state trial courts of general jurisdiction, quantitative methods are used to distinguish the characteristics of cases that accept the trial court judgment from those cases that settle following the verdict and from those cases that initiate appeals. I...

Weighted caseload: a critical element of modern court administration

ABSTRACT In recent years, court systems in the US and abroad have begun to adopt objective, empirically based methods for determining the need for judges. This methodology, called workload assessment or weighted caseload, provides an empirical basis to measure judicial work and assess how many judges are needed to handle the work in a particular jurisdiction, how judicial resources can be equitably allocated, and how much work any particular judge should handle. This article provides a general introduction to the basic elements and applications of the weighted caseload model in both nascent and transitional democracies, outlines the advantages and disadvantages of two alternative methods (Delphi v. time study) for developing case-weighting systems, and summarizes real-world applications in the US and other nations. The article concludes with a set of practical findings regarding the development and implementation of a case-weighting system.

Exploring the Theory and Practice of Sentencing Reform

Just Sentencing, by Richard Frase, covers a lot of ground in formulating prescriptions for a more coherent, principles-based system of criminal sentencing in the United States. Frase makes the point early and often that even the most elegant theory of punishment is useless without clear guidance on real-world application and implementation. Therefore, he takes care to make the concrete connection between sentencing in theory and sentencing in practice, with particular attention to what he believes are the best state guideline systems. Consequently, Frase’s schema offers valuable and provocative reading for the entire range of practitioners and policymakers responsible for criminal laws, policies, procedures, and practices; analytical observers in centers of research; public policy commentators; and attentive citizens. This book definitely has an audience for what Frase calls an “expanded limiting-retributive state guidelines model” or, more simply, the “expanded model.” The book proposes to unify existing and developing ideas on the proper purposes of sentencing offenders who face possible confinement in jail or prison. Frase contends that for the past several decades the world of criminal sentencing has been rocked by change and “fragmentation” leading to a lack of national coherence on sentencing purposes and penalties. The system of indeterminate sentencing has collapsed (along with the rehabilitative ideal), and has often been replaced by more determinate sentencing systems (including mandatory minimums) with a distinct preference for more punitive penalties. The rush to harsher penalties has corresponded with a substantial, manyfold increase ∗Brian Ostrom is affiliated with the National Center for State Courts, Williamsburg, VA, USA. Corresponding author. Email: bostrom@ncsc.org. Roger Hanson is a consultant at the National Center for State Courts, Denver, CO, USA. Criminal Justice Ethics, 2016 Vol. 35, No. 1, 80–86, http://dx.doi.org/10.1080/0731129X.2016.1148970

From the Special Issue Editors

The origins, processing, and consequences of lawsuits seeking compensation for a wide range of alleged harms remain lively topics of public debate and discussion. Questions cut to the heart of concerns about the efficacy of our legal system, the power of interest groups, and the health of our economy. Is the amount of litigation too large, too small, or just about right? Are lawyers encouraging the filing of frivolous cases, or are individuals taking their lumps without seeking relief in the courts? What happens when individuals and corporations decide to slug it out in court? Who wins? Who loses? And how can patterns of verdicts and awards be understood in the context of tort reform? Are trial verdicts final, or do litigants and appeals courts render the trial verdict only one step on the road toward an ultimate resolution?