The Federal Lawyer: Digital Supp #1 2023

Federal

Reentry Programs: How Best to Measure Their Success?

A Discussion of the “Evaluation of a Federal Reentry Program Model”

EDITORIAL BOARD

Editor in Chief

Andrew J. Doyle doyle_andrew@msn.com

Associate Editor

James W. Satola jsatola@roadrunner.com

Managing Editor

Heather Rigby (240) 404-6488 social@fedbar.org

Book Review Editors

Elizabeth Kelley

Peter M. Mansfield

Judicial Profile Editors

Hope Forsyth

Hon. Karoline Mehalchick

Articles Editors

Kristine Adams-Urbinati

Anna Archer

Sara L. Gold

Niles Illich

Jon Jay Lieberman

Bruce A. McKenna

Jeffrie Boysen Lewis

Amanda Thom

Stewart Michael Young

Columns Editor

Ira Cohen

Senior Proof Editor

Ellen M. Denum

Proof Editors

John Black

Leonid Feller

Reid Jones

Michelle Quist

Kirsten Samantha Ronholt

Benjamin R. Syroka

The Federal Lawyer Supp. is a digital special edition of The Federal Lawyer

The Federal Lawyer (ISSN: 1080-675X) is published quarterly, four times per year by the Federal Bar Association, 1220 N. Fillmore St., Ste. 444, Arlington, VA, 22201 Tel, (571) 481-9126, Fax (571) 4819090, Email: social@fedbar.org. Subscription Rates: $14 of each member’s dues is applied toward a subscription. Nonmember domestic subscriptions are $50 each per year; foreign subscriptions are $60 each per year. All subscription prices include postage. Single copies are $5. “Periodical postage paid at Arlington, VA., and at additional mailing offices.”

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Editorial Policy: The views published in The Federal Lawyer do not necessarily imply approval by the FBA or any agency or firm with which the authors are associated. All copyrights held by the FBA unless otherwise noted by the author. The appearance of advertisements and new product or service information in The Federal Lawyer does not constitute endorsement of such products or services by the FBA. Manuscripts: The Federal Lawyer accepts unsolicited manuscripts, which, if accepted for publication, are subject to editing. Manuscripts must be original and should appeal to a diverse audience. Visit www.fedbar.org/ tflwritersguidelines for writers guidelines.

By Francisco Diaz

By Hon. Lisa Walsh

By Ira Cohen

COLUMNS

3 Letter From the Editor

Introducing The Federal Lawyer Supp.

by Andrew J. Doyle

4 Commentary

Making Reentry a Reality: Larry Thompson’s Inspiring Journey and Visionary Anti-Recidivism Program

by Benjamin R. Syroka

8 Commentary

Judicial Interns Academy Paves the Way by Leat Perez and Shannon Mau with Judge Beth Bloom

10 Commentary

Waivers of Inadmissibility Requirements and Their Impact on Applicants for Adjustment of Status by Federica Dell’Orto and Judith Wood

12 Commentary

Tracking the Fifth Circuit: A Focus on Administrative Law Judges by Hon. Patricia M. French

BOARD OF DIRECTORS

President • Matthew C. Moschella mcmoschella@sherin.com

President-Elect • Jonathan O. Hafen jhafen@parrbrown.com

Treasurer • Glen R. McMurry gmcmurry@taftlaw.com

Hon. Alison S. Bachus bachusa@superiorcourt.maricopa.gov

Ernest T. Bartol etbartol@bartollaw.com

Bonnie S. Greenberg bonnie_baltimore@yahoo.com

Anna W. Howard anna.howard@uga.edu

Joseph S. Leventhal joseph.leventhal@dinsmore.com

Adine S. Momoh adine.momoh@stinson.com

Nancy Morisseau nancy.morisseau@nationalgrid.com

Michelle M. Pettit michelle.pettit@usdoj.gov

Rachel V. Rose rvrose@rvrose.com

Kelly T. Scalise ktscalise@liskow.com

Michael S. Vitale mvitale@bakerlaw.com

Ex Officio Members

Amy E. Boyle aboyle@mjsbjustice.com

Anh Le Kremer akremer@nystromcounseling.com

Scott P. Lopez splopez@lawson-weitzen.com

Hon. Karoline Mehalchick karoline_mehalchick@pamd.uscourts.gov

Nathan A. Olin nate@oliplaw.com

NATIONAL STAFF

Executive Director Stacy King sking@fedbar.org

Deputy Director R. Yvonne Cockram ycockram@fedbar.org

Director of Membership and Chapters Dominick Alcid dalcid@fedbar.org

Managing Editor Heather Rigby social@fedbar.org

Outreach and Foundation Manager Cathy Barrie cbarrie@fedbar.org

Program Coordinator, Membership & Events

Marisa Beam mbeam@fedbar.org

Membership Coordinator Clarise Diggs cdiggs@fedbar.org

Program Coordinator Daniel Hamilton dhamilton@fedbar.org

Director of Sections and Divisions Mike McCarthy mmccarthy@fedbar.org

Marketing Director Zac Crisco social@fedbar.org

Senior Conference Manager Caitlin Rider crider@fedbar.org

Leadership Support & Board Specialist Shaniece Rigans srigans@fedbar.org

Program Coordinator, Conference & Webinars Nikki Toledo mtoledo@fedbar.org

Administrative Coordinator Kim Wonson kwonson@fedbar.org

Database & Technology Administrator Miles Woolever mwoolever@fedbar.org

VICE PRESIDENTS FOR THE CIRCUITS

First Circuit Scott P. Lopez

Second Circuit

Olivera Medenica

Dina T. Miller

Third Circuit

Christian T. Haugsby

Fourth Circuit

Kacy L. Hunt

Fifth Circuit

Mark L. Barbre

Paul D. Barkhurst

Sixth Circuit

Jade K. Smarda

Seventh Circuit

Melissa Schoenbein

Eighth Circuit

David A. Goodwin

Ninth Circuit

Jody A. Corrales

Darrel J. Gardner

Tenth Circuit

Kristen R. Angelos

Kate Simpson

Eleventh Circuit

Lauren L. Millcarek

Oliver A. Ruiz III

D.C. Circuit

Patricia D. Ryan

SECTION AND DIVISION CHAIRS

Chair, Sections and Divisions

Council

Nathan A. Olin

Admiralty Law

Michelle Otero Valdes

Alternative Dispute Resolution

James N. Downey

Antitrust and Trade Regulations

Robert E. Hauberg Jr.

Banking Law

John Court

Bankruptcy Law

Angela Sheffler Abreu

Civil Rights Law

Kyle J. Kaiser

Corporate and Association Counsel

Lawson E. Fite

Criminal Law

Madison Bader

Environment, Energy & Natural Resources

Vacant

Federal Career Service

Dina T. Miller

Federal Litigation

Andrea L. Marconi

Government Contracts

Vacant

Health Law

Thomas S. Schneidau

Immigration Law

Kate Melloy Goettel

Indian Law

Helen B. Padilla

Intellectual Property Law

Oliver Alan Ruiz

International Law

Bijan Kasraie

Judiciary

Hon. Karoline Mehalchick

Labor and Employment Law

Mary Augusta Smith

Law Student

Jenifer Tomchak

LGBTQ+ Law

Mario Choi

Qui Tam

Megan Mocho

Securities Law

Vacant

Senior Lawyers

Albert Lionel Jacobs Jr.

Social Security Law

Jerrold A. Sulcove

State and Local Government Relations

Vacant

Taxation

Daniel Strickland

Transportation and

Transportation Security Law

Sarah Bell Nural

Veterans and Military Law

Frank J. McGovern

Younger Lawyers

Amy E. Boyle

Introducing The Federal Lawyer Supp.

By Andrew J. Doyle

Welcome to The Federal Lawyer Supp., a slimmeddown, digital-only sibling of the official magazine of the Federal Bar Association. Rest assured, The Federal Lawyer―in its full, familiar format―will continue to be printed and mailed four times a year. But once or twice a year, the FBA’s website will feature The Federal Lawyer Supp TFLS is just that; a supplement to TFL that provides additional valuable content―primarily articles and commentary around focused themes―as a service to members.

A digital-only format is not new to the FBA. During the depths of the pandemic, not all editions of TFL made their way to hard copies due to things like supply chain issues with paper availability and staffing concerns. Learning from the experience, the editorial board envisions TFLS as a home for high quality, interesting submissions for which TFL might otherwise

lack space. And, with the absence of printing and mailing, TFLS can be nimbler and timelier in providing information and sharing points of view.

I am grateful to our Judicial Profiles Editor, the Honorable Karoline Mehalchick, Chief United States Magistrate Judge, United States District Court, Middle District of Pennsylvania, for spearheading this inaugural edition and its federal judiciary theme. The next edition of TFLS is expected in January 2024. Led by Articles Editor Jon Jay Lieberman, it will focus on bankruptcy law and practice. Authors may provide manuscripts for consideration by Oct. 15, 2023, and submission guidelines can be found at: www.fedbar. org/tflwritersguidelines

We welcome your feedback and invite you to reach out to us at social@fedbar.org 

Andrew J. Doyle is the Editor in Chief of The Federal Lawyer. He practices law with the U.S. Department of Justice’s Environment & Natural Resources Division. He writes (and volunteers for pro bono work) in his personal capacity.

Making Reentry a Reality: Larry Thompson’s Inspiring Journey and Visionary Anti-Recidivism Program

By Benjamin R. Syroka

Ben Syroka is a career law clerk to the Honorable Jack Zouhary. Ben also serves on the editorial board of The Federal Laywer and the FBA’s Northern District of Ohio Advisory Board. In his spare time, he serves as volunteer counsel for the Reentry Realities program, teaches legal writing and motion practice at the University of Toledo College of Law, and referees NCAA men’s basketball.

I first met Larry Thompson1 not long after his arrival in Toledo, Ohio in April 2022. Larry was not your average Midwest transplant—he had just been released after 16 years in the Ohio Department of Rehabilitation and Correction (ODRC). He was staying at the Cherry Street mission, and I was stopping to quickly drop off a few items from my boss.2 After what turned into a 20-minute conversation on the hot blacktop outside the shelter, I found myself deeply impressed by the depth of Larry’s knowledge and his positive outlook. “Life is all about relationships,” he told me. We became fast friends (as do most who meet Larry).

When we met for lunch the following Saturday at Michael’s Bar & Grill, the topic of conversation was something we share a passion for: reducing recidivism. Larry’s journey through incarceration led him to establish an educational program, Reentry Realities, designed to help inmates transition smoothly back into society upon release. While reentry efforts have increased over the past decade, the majority of resources have been allocated to helping inmates after they have been released. Larry’s program is taught prior to release, from the perspective of someone with deep personal experience. The program, outlined in his book Reentry Realities: A Survival Guide for Reintegration, is an 18-week course designed to address the psychosocial causes of incarceration and inspire inner growth within students. Larry self-published his book while incarcerated, with the help of his mentor Joe,3 and taught the course to hundreds of inmates over an eight-year period. Listening to Larry—and the many transformational stories from his classes—I was, frankly, blown away.

But Larry had a problem. Now that he was out, he wanted to formalize his book and spread the message but didn’t have the resources. Well, out of pure coincidence, I had just met a nontraditional law student—a

summer intern at the courthouse, who happened to have over 20 years of publishing experience. A few weeks later, the three of us were back at Michael’s Bar & Grill, with Larry and Mark4 shaking hands on a deal to publish Larry’s book and accompanying workbook. The wheels were in motion.

In late September, after hours of editing, revising, and formatting, Larry’s book—first written on a typewriter in a state prison—was live for sale on Amazon.5 In the meantime, Larry had found employment at a factory (after building himself a bicycle to get there), permanent housing, and (eventually) a car. He also reintegrated himself into the digital world,6 learning to use word-processing and editing software—no easy feat after 16 years behind bars!

Now it was time to spread the word. In October, an official book launch7 was held at the University of Toledo Law Center,8 featuring the first public screening of the PBS Documentary, Reentry Realities: Hope Deferred, detailing Larry’s story. The event was well attended, and the book sales, all of which were donated to the Reentry Coalition of Northwest Ohio, exceeded expectations. By the time we celebrated Larry’s one-year “release anniversary” in the spring, he had already trained instructors at the Lucas County

Larry teaching the Reentry Realities program to fellow inmates while incarcerated.

Community Treatment Facility (CTF) to teach the program, shared his reentry experience in a speech to the Rotary Club of Toledo,9 and—most importantly—achieved early termination from parole. Larry was now truly a free man.

What sets Larry’s program apart is its holistic, step-by-step, integrative approach to prisoner rehabilitation. Reentry Realities is designed to arm inmates with the mindset and skillset necessary for successful reintegration, while simultaneously addressing the underlying causes and trauma that led to their incarceration in the first place. The program has now been implemented in nine ODRC facilities, along with CTF, and has been met with overwhelmingly positive feedback. Among participants, recidivism rates have been remarkably low, a testament to the program’s effectiveness. Larry hopes to spread the program throughout all facilities in the ODRC system and is currently in discussions with officials from several other states.

Larry’s work has attracted increasing acclaim,10 particularly from those who have benefited directly from his program. Former inmates speak of the impact on their lives with deep gratitude, emphasizing how it taught them to deal with the underlying issues that led them to prison and equipped them with the tools to avoid returning. Moreover, members of the local legal community, including local judges and prosecutors, have endorsed Larry’s program, acknowledging its potential to change the way we think about rehabilitation and reentry. Buoyed by the success of Reentry Realities at the state level, we are now making efforts to introduce the program to the Federal Bureau of Prisons—hoping to extend its reach and impact to the federal system.

Larry’s journey is a testament to the power of inner change and the possibilities that can arise when we address the root causes of incarceration. His program, born out of personal experience, inspires us to work toward a justice system that doesn’t just punish, but also rehabilitates and, in turn, reintegrates our fellow citizens back into society. As Larry puts it: “Helping restore former prisoners to meaningful lives through inner growth and principle-centered maturity is my life’s work.” This single statement captures the essence of Larry as a person, teacher, and mentor.

To me, Larry serves as an example of the transformational power of empathy, understanding, and true rehabilitation. It’s possible to rethink our approach to justice, recidivism, and the lives ensnared in our

Top left: A few chance encounters and connections led to this handshake deal and pulled Mark Hanusz back into the world of publishing. Top middle: The updated cover for Reentry Realities: A Survival Guide for Reintegration. Top right: Larry and Judge Zouhary showing off the new book at the official launch—a photograph that was a decade in the making. Above: Larry and Ben at Ben’s condo, a few blocks from the shelter where they first spoke, after meeting with ODRC officials to implement Larry’s program.

justice system. We can collectively work toward a future where reentry is not just a reality but a success story for all those returning home.

Oh, and if you happen to be in the area and bump into Larry around town, say “hello” and stop to chat. I promise, you won’t regret it! 

Endnotes

1Larry Dean Thompson is an author, pastor, and reentry specialist. While incarcerated, he graduated with an associate degree from Ashland University, earned a four-year certification from Grace Ministries Bible College, and graduated from a state-certified counselors training program. Since being released, he has dedicated his life to being successful—and helping others be successful—in reintegration.

2Judge Jack Zouhary, U.S. District Court for the Northern District of

Ohio, has known Larry and supported his reentry efforts since 2013.

3Pastor Joe Hoeflinger, of Sylvania, Ohio, has been Larry’s mentor for over a decade. He has helped countless inmates through his Restored Hope Prison Ministry.

4Mark Hanusz is a former international banker, author, publishingcompany founder, and 2023 University of Toledo Law Graduate. He recently accepted a position with the Lucas County Prosecutor’s Office.

5See About the Author: Larry Dean Thompson, Amazon, http://www.a.co/d/2RZbUVl (last visited May 4, 2023).

6Larry Thompson, http://www.larrythompson.net (last visited May 4, 2023).

7Reentry Realities: Book Launch, Film Screening, and Reception, Univ.

Tol. Law. (Oct. 21, 2022), http://www.utoledo.edu/law/events/ reentry-realities

8Mike Henry of Erie Ink Printing Company, located in Toledo, Ohio, donated both his time and materials to launching Reentry Realities. He has been instrumental in the program’s success.

9Toledo Rotary, Larry Thompson, YouTube (April 3, 2023), http:// www.youtube.com/watch?v=l2ziqtGO6uY.

10See Vincent Lucarelli, Ex-prisoner teaches ‘Reentry Realities’, Tol. Blade (Oct. 10, 2022), http://www.toledoblade.com/ local/community-events/2022/10/09/reentry-realitieslatest-accomplishment-for-former-prisoner-turned-teacher/ stories/20221005146

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Judicial Intern Academy Paves the Way

By Leat Perez and Shannon Mau, Judicial Intern Academy interns, with Hon. Beth Bloom, U.S. District Court – Southern District of Florida

Leat Perez is a second-year law student at the University of Miami School of Law. As a first-generation student, Leat graduated with Honors from the University of Pennsylvania. Shannon Mau is a first-generation, thirdyear, part-time law student at Florida International University School of Law. There, Shannon serves as a staff member of the FIU Law Review and volunteers as an admissions coach for FIU Law Path Scholars.

Federal judicial internships are highly competitive and selective. As a result, well-qualified and motivated students with similar qualifications are often denied the opportunity based on availability. For other students, a full-time, unpaid summer internship is infeasible due to financial constraints or family obligations. United States District Judge Bloom and her staff recognized that many more students should be given the coveted opportunity to learn and created a common-sense solution—the Judicial Intern Academy (JIA or Academy): a part-time, hybrid program designed to allow more students to participate in the federal judicial internship program in the Southern District of Florida. In addition, these students receive the benefit of individualized feedback on research, writing, and advocacy skills. The JIA pairs interns with former federal judicial law clerks, Law Clerk Advisors (LCAs), who volunteer to help guide the Academy interns through the writing and oral advocacy assignment. The interns’ assignment involved researching and drafting a bench memorandum regarding a motion pending before the court. Then, the interns were afforded the opportunity to participate in a mock hearing and argue their positions in the Wilkie D. Ferguson Jr. U.S. Courthouse before Judge Bloom. Throughout the program, Academy interns were also encouraged to attend court proceedings in state and federal court, including civil, criminal, family, juvenile, and bankruptcy proceedings. The Academy also featured the “Learning From the Legends” and “Conversations With the Court” series, in which interns participated in discussions with prominent attorneys and judges in the South Florida legal community. The JIA 2022 inaugural class consisted of 18 rising second-year law students from one private school (University of Miami) and from one public school (Florida International University).

Student Perspective

As law students, we are bombarded with emails about networking events, interviews, internships, and clerkships, all pulling us in different directions. After hearing from Judge Bloom’s present and former law clerks—Ana Kauffmann and Tal Aburos—about the new Judicial Intern Academy opportunity, the path forward became clear.

“Employed as a full-time law clerk and a part-time law student, I never considered a judicial internship,” stated Florida International University Law student Shannon Mau. “Applying to the Judicial Intern Academy was undoubtedly the best decision I’ve made in my nascent legal career.”

Excited, nervous, hopeful, anxious, motivated, intimidated. These are just some of the adjectives that could describe the gamut of emotions experienced on the first day of JIA. Checking our outfits one last time, we walked up to the courthouse, passed through security, arrived on the 10th floor, and pulled open the giant wooden doors of Judge Bloom’s courtroom—the entire sequence felt surreal. While sitting in the gallery awaiting instruction, it was impossible not to imagine being an attorney, arguing in front of a jury, and pleading for justice. For many of us, that day marked the first time entering a courtroom, which is a truly memorable experience for any aspiring attorney.

The 2022 JIA interns represented a wide range of interests, backgrounds, and experiences. The speakers were equally diverse, offering different perspectives, life experiences, and personal philosophies. The JIA unlocked opportunities that were otherwise impossible for us and countless other students. “Find a mentor,” advised Judge Bloom. “Mentorship is an essential building block to a successful career in the legal profession.” Law school teaches legal theory, but that is only a scintilla of what it takes to become a good attorney. Trevor Jones, a prosecutor and leader in the Broward Chapter of the Federal Bar Association, recruited the LCAs for each of the selected interns. They volunteered their valuable time and tremendous talent to help strengthen interns’ research and writing skills and sharpen their oral advocacy. Each LCA provided career advice and insight into their understanding of the South Florida legal landscape. “This program is amazing, and I cannot wait to mentor again next year,” proclaimed Ana Romes, senior counsel at Foley & Lardner LLP. “Mentoring creates a ‘two-way street’ where we both can learn from each other and now have yet another connection within the community.”

“You will never regret being kind,” commented

Judge Bloom. This simple, yet often overlooked, tenet for good legal practice was echoed by many other respected leaders.

Throughout the summer, our schedule was filled each week with several remote sessions of Learning From the Legends and Conversations With the Court. During the Legends series, we were privileged to hear from some of the greatest legal minds in the United States. While many entered the Academy as first-generation college graduates or law students, we all left with generations of knowledge from highly esteemed attorneys who are the “firsts” of so many, including Chief Judge Laurel Isicoff, the first female bankruptcy judge in the Southern District of Florida; and H.T. Smith, Miami-Dade’s first African American assistant public defender and assistant county attorney. When asked how he did it, H.T. Smith declared, “By redefining ‘impossible’ as ‘having never been done before.’”

Past President of the Florida Bar, Herman J. Russomano, encouraged us to “be addicted to justice” but to respect our profession, and remember “civility is not a sign of weakness but a badge of courage.” Patriot, fierce litigator, and newly appointed South Florida U.S. Attorney Markenzy Lapointe called on each of us to fight for our own success, for “it is passion with courage that distinguishes you from everyone.” U.S. District Judge Kathleen Williams emphasized compassion and reminded us that “everyone is more than the worst thing they’ve ever done.” Interns were invited to witness this truth as Senior Judge Patricia Seitz, who formerly sentenced one man, Mr. Richardson, to 30 years in federal prison, now presented him with his diploma from the Court-Assisted Re-Entry (CARE) Court. The two planned for a similar exchange at Mr. Richardson’s upcoming graduation from culinary school. JIA, like CARE Court, is about showing individuals who they are and who they can become.

Through countless anecdotes, interns learned to accept discomfort, tap into uncertainty, and welcome the unknown. U.S. District Judge Rodolfo “Rudy” Ruiz explained that we should lean into challenges and accept mistakes because “it’s called the practice of law for a reason.”

After researching the issues, drafting our legal memoranda, and practicing with our LCAs, interns entered the federal courtroom ready for oral argument before Judge Bloom. Where we once hesitated about where to sit, we now stood tall at the lectern—confident and prepared, papers in hand, eyes on the judge, taking deep breaths. “Good afternoon, your Honor, and may it please the court…” It was a terrifying and wildly exciting experience. To share that success with our LCAs made it all the more meaningful.

On the final day of the Academy, we attended a naturalization ceremony, and a group of interns took the stage to join in singing our national anthem with 100 men and women who turned to our flag and took the Oath of Allegiance. Nothing quite compares to the joy and excitement that a naturalization ceremony brings. “This is one of

the best moments of my service as a federal judge,” exclaimed Judge Bloom. It was one of the greatest privileges to welcome our newest citizens to our country. Many of us are first-generation students who heard our own families’ struggles in the stories the courageous speakers shared that day. Our new brothers and sisters bring with them different languages, religions, customs, and traditions, all united in a dream that is now a reality. The ceremony is a symbol of courage and commitment, inspiring faith in our system and fervor to serve it.

Now, we return to our respective law schools with new passions, meaningful connections, and the spirit of justice to carry us through the remainder of law school and into our careers. “The JIA is about more than inspiration; it’s about aspiration. We left Judge Bloom’s courtroom filled with many hopes—the greatest of which was to master our craft,” gushed University of Miami student Leat Perez.

“It is rare in law school to get more exposure than one or two firms, lawyers, and practice areas. But a taste is all you need. If it’s really for you, and you have never heard of it, that will change your life,” explained LCA Jeffrey Crockett, former clerk to Supreme Court Justice Anthony M. Kennedy, and now a partner at Coffey Burlington. “I have no doubt that Judge Bloom will hear, 20 years from now, that ‘I went into criminal law because I heard so-and-so’ or ‘I looked into working in domestic violence because of the Academy.’”

The interns are already placing their bets on that one. 

For more information about the Judicial Intern Academy, please contact Judge Beth Bloom at 305-523-5770 or Beth_Bloom@flsd. uscourts.gov

Editorial Policy

The Federal Lawyer is the magazine of the Federal Bar Association. It serves the needs of the association and its members, as well as those of the legal profession as a whole and the public. The Federal Lawyer is edited by members of its Editorial Board, who are all members of the Federal Bar Association. Editorial and publication decisions are based on the board’s judgment.

The views expressed in The Federal Lawyer are those of the authors and do not necessarily reflect the views of the association or of the Editorial Board. Articles and letters to the editor in response are welcome.

Waivers of Inadmissibility Requirements and their Impact on Applicants for Adjustment of Status

By Federica Dell’Orto and Judith Wood

Adjustment of status is the process of applying for lawful permanent residency in the United States, a process which allows transition from being a non-immigrant visa holder or a foreign national without status to lawful permanent residency. Adjusting status is an option available to only a few categories of people, amongst those: certain relatives of current permanent residents or U.S. citizens, applicants who filed a successful Violence Against Women Act (VAWA) petition, asylees and certain employees of U.S. businesses who proved to possess extraordinary ability in their field of endeavor, and those whose work is in the national interest of the United States.

The focus of this article is the adjustment of status of those foreign citizens who have a U.S. citizen as an immediate relative.

Federica Dell’Orto is a New York based attorney, with extensive experience in immigration, international and human rights law, and complex litigation matters. She has represented clients during removal proceedings, as well as in asylum, bond, cancellation of removal, and adjustment hearings. She is experienced with the Board of Immigration Appeals and the Ninth Circuit Court of Appeals. Judith Wood attended Pepperdine University School of Law and served as a public defender in New Mexico. She has been in private practice as an Immigration Attorney since 1984. She was supervising attorney for CARECEN and was attorney for El Rescate, as well as for One Stop Immigration. She is a member of the Federal Bar Association, where she is chair of the Human Rights Section of International Law.

The Immigration and Nationality Act under § 245(a)1 allows certain foreign nationals, who are physically present in the United States, to adjust their status to that of a lawful permanent resident if they are an immediate relative of a U.S. citizen. Specifically, § 245(a) establishes that “The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.” The essential requirement for a person to be able to adjust under 245(a) is to have been lawfully admitted or paroled into the United States.

An admission occurs when an immigration officer allows a noncitizen to enter the United States pursuant to a visa or another entry document, while parole occurs when a person is allowed into the United States while lacking a visa or other valid admission document

or status, usually for an emergency or for humanitarian reason. People who enter the United States without being “admitted” or “paroled” are generally not able to adjust status while in the United States, instead, they must leave the United States and complete the processing of their permanent residency applications at a U.S. consulate abroad. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) toughened U.S. immigration laws, adding penalties for undocumented immigrants who stay in the United States for statutorily defined periods of time. The act established that foreign citizens who are unlawfully present in the United States for 180 days to 365 days must remain outside the United States for at least three years unless pardoned2. The act also established that foreign citizens who remained in the United States for more than 365 days must remain outside the United States for at least 10 years unless they obtain a waiver3

As such, if the foreign national entered or remained in the United States without any lawful status after April 30, 1997—the day IIRIRA’s changes became effective—he or she would begin to accrue days of ‘unlawful presence.’ Said individual who has accrued sufficient unlawful presence to trigger a 3- or 10- year bar only triggers that bar by departing the United States. As discussed though, in order to adjust status absent admission or parole, the foreign national must depart the United States—at which point the 3- or 10year bar is triggered.

An immigrant waiver of these bars is available to those applicants who can establish “extreme hardship” to a qualifying relative. A qualifying relative is defined as a U.S. citizen or lawful permanent resident spouse or parent4. The Secretary of Homeland Security’s discretionary authority to waive the ground of inadmissibility for unlawful presence is established in Immigration and Nationality Act (INA) § 212(a)(9)(B)(v)5, 8 U.S.C. 1182(a)(9)(B)(v) and the regulation governing the relevant inadmissibility waivers is 8 CFR 212.76.

Before 2013, the so-called immediate relatives could not apply for the waiver until after they had

completed their immigrant visa interviews in their home countries, yet the departure from the United States was the very action that triggered the unlawful presence inadmissibility under § 212(a)(9) (B)(i) of the INA. As a result, under the original provisions, the foreign nationals were forced to remain outside of the United States, and away from their U.S. citizen spouses, parents, or children, while USCIS adjudicated their waiver applications—a process that could last longer than one year. The lengthy processing times, coupled with the uncertainty about the outcome of the waiver adjudication, made it such that many possibly eligible foreign nationals were reluctant to proceed with this avenue.

On Jan. 3, 2013, USCIS published a final rule7 which allowed certain immediate relatives of U.S. citizens to apply for a provisional waiver of the unlawful presence grounds of inadmissibility under § 212(a)(9)(B)(i)(I) or § 212(a)(9)(B)(i)(II) of the INA before leaving the United States for their immigrant visa appointments.

Both forms I-601 Application for Waiver of Grounds of Inadmissibility and I-601A Application for Provisional Unlawful Presence Waiver are requests for waivers for grounds of inadmissibility. The similarity amongst the two forms is that both must show that a U.S. citizen or permanent resident spouse or parent will suffer “extreme hardship” if the waiver is not granted. Form I-601 can be used to waive any grounds of inadmissibility, whereas form I-601A can solely be used to waive inadmissibility based on unlawful presence. Form I-601 must be filed after a finding of inadmissibility has been entered and the timing is relevant because the grounds for inadmissibility are established after the consular determination is made. Form I-601A can instead be filed while waiting for a consular interview and before the determination as to the inadmissibility has been made; this is because the purpose of the I-601A is to reduce the family separation time. The criteria for judging “extreme hardship” in determining whether an alien has established extreme hardship pursuant to the act is laid out in Matter of Cervantes-Gonzalez8. The factors to be used include, but are not limited to, the following: the presence of lawful permanent resident or U.S. citizen family ties to this country, the qualifying relative’s family ties outside the United States, the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to such countries, the financial impact of departure from this country, and, finally, significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate9. These relevant factors are considered in the aggregate and are evaluated to determine whether the combination of all factors makes a particular case harsher than what is ordinarily expected from leaving a country. For the INA § 212(a) (9)(B)(v) waiver to overcome the 3- and 10-year unlawful presence bar, the qualifying relative must be a U.S. citizen or lawful permanent resident spouse or parent; children cannot be qualifying relatives under the requirements for waivers for unlawful presence. So often immigrants have been beneficiaries of family petitions filed by their adult children, and yet they cannot immigrate because the waivers are not available to them; as such an expansion of the qualifying relatives so as to include adult children who are U.S. citizens is auspicial.

It is heartbreaking and tragic for so many immigrants, many of whom have spent years toiling in the fields, planting and harvesting our food, to not be able to avail themselves of the waivers for their unlawful presence.

Particular hardship is endured by Mexican nationals who are

often low-priority immigrants. Other nationalities are eligible for various forms of relief, such as TPS (temporary protected status), NACARA (suspension of removal for nationals from Guatemala, El Salvador, and Nicaragua), asylum, and withholding of removal and relief under the Convention Against Torture. However, Mexican citizens do not qualify for any of these forms of relief. With regards to asylum, and no matter how horrible the country conditions in Mexico may be, the immigration judges rarely find that the respondent has suffered persecution, or if they have, it is not on account of one of the five grounds—race, religion, nationality, political opinion, or membership in a particular social group. Hence, they are left out of the various avenues of relief.

To rectify this situation, Congress could pass legislation allowing such immigrants, who have U.S. citizen children who have filed petitions for their parents, to file for the waivers such as I-601 and I-601A. This generous and humanitarian act of Congress would ameliorate the suffering of thousands of individuals who would then be able to apply for either adjustment of status or have access to consular process of applications for lawful immigration to the United States.

Endnotes

1INA §245(a)

2INA §212(a)(9)(B)(i)(I)

3INA §212(a)(9)(B)(i)(II)

4INA §212(a)(9)(B)(v)

5INA §212(a)(9)(B)(v)

68 CFR §212.7

778 FR 536 (Jan. 3, 2013)

8Matter of Cervantes-Gonzalez, 22 I&N Dec. 560 (BIA 1999)

9Id.

Tracking the Fifth Circuit: A Focus on Administrative Law Judges

By Hon. Patricia M. French

A series of matters were brought before the Fifth Circuit U.S. Court of Appeals, that resulted in holdings questioning inter alia the constitutionality of certain adjudicatory proceedings before federal administrative agencies, as well as the manner by which administrative law judges (ALJs) appointed at the nation’s federal agencies may be removed from their positions.

Patricia M. French practiced energy and utility law in the public and private sectors for over 30 years before being appointed an administrative law judge for the United States, following competitive examination. Her current tour is with the Federal Energy Regulatory Commission. She is also an officer of the Federal Administrative Law Judges Conference.  Any opinions stated are hers, and hers alone.

This article1 reflects the path of one of those matters that has landed now as a petition for review pending before the U.S. Supreme Court.2

This matter began a decade ago, in 2013, with an Order Instituting Proceedings (OIP) duly issued by the Securities and Exchange Commission (SEC or Commission) pursuant to § 8A of the Securities Act of 1933,3 §§ 15(b)(4), 15(b)(6) and 21C of the Securities Exchange Act of 1934,4 §§ 203(e), 203(f), and 203(k) of the Investment Advisers Act of 1940,5 and § 9(b) of the Investment Company Act of 1940.6 The respondents then sued the Commission in the U.S. District Court for the District of Columbia, seeing to enjoin agency action on constitutional grounds. The district court dismissed the suit for lack of jurisdiction and was upheld on appeal to the U.S. Court of Appeals for the District of Columbia Circuit.7 In the meantime, the matter was assigned to a Commission ALJ who held in-person and remote administrative hearings during several weeks in 2014. Before the ALJ were the OIP allegations that the respondents’ dealings with certain hedge funds resulted in material misrepresentations and omissions in violation of federal law, and that those misrepresentations and omissions regarding those funds, their placement agent, and their owner, fell within the SEC’s jurisdiction to oversee in the public interest. The respondents were represented by private counsel; the public interest was represented by the SEC internal trial counsel from the SEC’s Division of Enforcement (Division).

The ALJ’s initial decision (ID) in the administrative proceeding8 addresses the threshold arguments of:

(1) alleged due process and equal protection violations, as well as deprivation of equal protection; (2) alleged violations of Brady requirements;9 and (3) the time-barred nature of the OIP claims. The ID then

makes lengthy and specific findings of fact based upon the evidence presented at the evidentiary hearing and weighs the record in light of the testimonial inconsistencies of one respondent. It relies on hearing evidence to specify material misrepresentations and omissions of this respondent or entities under respondent’s control. The ID then evaluates the various securities acts (§ 17(a) of the Securities Act,10 § 10(b) of the Exchange Act,11 and §§ 206(1), 206(2) and 206(4) of the Advisors Act)12 that prohibit aiding the willful violation of the relevant antifraud provisions, in order to protect investors and the public interest. The ID’s findings of fact include that the respondents were deemed fiduciaries, investment advisors and/or associated persons of an investment advisor, all within the meaning of the relevant statutes. The ID determines the respondents aided and abetted the violations of the securities laws, and did so willfully, and in doing so violated the applicable law.

As allowed by statute, the respondents sought independent review in first appealing the ID to the Commission resulting in an opinion issued in 2020,13 which delay in issuance was caused by the issuance of the Lucia decision14 after which the respondents waived their right to a new hearing. In its 2020 opinion, the Commission determined that the respondents violated the relevant acts, and imposed a bar on one of the respondents and a cease-and-desist on the others. The Commission further mandated civil penalties to be borne jointly and severally and requires disgorgement of monetary gains obtained in contravention to law. The Commission recited with specificity the facts it found persuasive in determining that the respondents violated the Exchange Act § 10(b) and Rule 10b-5(b),15 Securities Act § 17(a)(2),16 and Advisors Act § 206(4) and Rule 206(4)-8.17 The Commission confirms in its opinion that the evidence adduced at hearing supports the finding that the respondents violated the antifraud provisions of these statutes by knowingly or recklessly making material misstatements or omissions in its funds marketing, including materially misrepresenting the identities of the auditor and prime broker, even after being asked by the prime broker to remove its

name; materially misrepresenting the asset allocation and investment strategy, which is an important consideration to a reasonable investor; lacking justifications for its material misrepresentations to investors (“not every mixture with true will neutralize the deceptive”); and blaming others for its material misrepresentations, including its former counsel. The Commission confirmed the substantial evidence supported finding the respondents knowingly or recklessly made material misstatements and omissions about asset valuations, including misrepresenting the value of the relevant assets in financial statements and monthly statements of account by failing to write down defaulted notes, unreasonably inflating valuations of stocks and warrants that had no traded value (and then changing those valuation assumptions), and overvaluing other investments in penny stocks with no quoted price that the Commission indicated was regarded by the respondents themselves as “essentially worthless,” and in restricted stock.

Finally, in its opinion, the Commission also found the respondents materially overvalued life settlement policies in their reports and records. All of the misrepresentations are deemed to be material and made with scienter. The Commission opinion specifically identified the statutes that authorize it to bar a person from association with an investment company or from the offering of penny stock, if the Commission finds that the person is in willful violation of federal securities laws and that the bar is in the public interest (Investment Company Act § 9(b), 15 U.S.C. § 80a-9(b), 15 U.S.C. § 80b-3(f)); Exchange Act § 15(b)(6)), 15 U.S.C. § 78o(b)(6)). The Commission opinion concluded that respondent Jarkesy poses a significant danger to investors, which is within the scope of the public interest that the Commission is required to protect, and that barring respondent Jarkesy from the securities industry (including from participating in a penny stock offering) is also in the public interest. The Commission opinion also imposed a cease-and-desist order with monetary penalties against the respondents as a result of the fraudulent misconduct of the nation’s securities laws, all as permitted by statute (Securities Act § 8A, 15 U.S.C. § 77h-1(g)(1); Exchange Act § 21B, 15 U.S.C. § 78u-2; Advisers Act § 203(i), 15 U.S.C. § 80a-9(d); Investment Company Act § 9(d); 15 U.S.C. § 80b-3(i)). Disgorgement is also mandated for one of the respondents (Securities Act § 8A(e), 15 U.S.C. § 78u-2; Exchange Act §§ 21B(e) and 21C(e), 15 U.S.C. §§ Advisers Act § 203, and Investment Company Act § 9(e)).

After its independent review of the substantial evidence and the law, the Commission addressed fully the respondents’ constitutional and procedural claims, dismissing each. As supported by ample precedent, and consistent with constitutional principles, administrative law judges are charged under the Administrative Procedures Act with developing an evidentiary record and making recommendations regarding the application of law, and the SEC itself independently reviews those “initial” decisions in the public interest, a charge given to no other entity in the federal scheme, resulting in its own opinion, and with the full opportunity for errors of the Commission’s opinion to be reviewed by Article III courts.

The respondents appealed. The Fifth Circuit majority, on appeal, vacated the decision and remanded to the Commission. 18 Contrary to the holdings of the DC Circuit earlier, the Fifth Circuit majority determined the SEC’s in-house adjudication of the matter violated the respondent’s (now petitioners’) Seventh Amendment right to a jury trial. It found that Congress unconstitutionally delegated legislative power to the SEC by failing to provide an “intelligible

principle” by which the SEC would exercise the delegated power, in violation of Article I of the Constitution, and the matter was therefore not “properly assigned.” And finally, it determined that the statutory removal restrictions on the Commission’s administrative law judges violates the “take care clause” of Article II of the Constitution. The Fifth Circuit majority declared unconstitutional the lengthy agency proceedings designed by Congress to protect the broader public interest of the nation’s investors and which ensure the broader public’s confidence and trust in the regulated financial advisor and investment communities.

The Fifth Circuit’s majority opinion relied tightly on the view that agency proceedings are only undertaken to remedy a “public right” and that the private rights vindicated here were inappropriately delegated by Congress; that the rights “vindicated” by the SEC are grounded in “common law fraud,” which, under the Seventh Amendment, is within the province of the courts; and that actions seeking “civil penalties” are a type of remedy it says are only “enforced” in a court of law. The Fifth Circuit majority confirmed its interpretation that the right being vindicated in this matter is a private right, not a public one, and that once more, actions to enforce a private right must be heard by an Article III court with the constitutional right to a jury trial. The dissenting opinion argued the rights being adjudicated at the SEC are clearly and properly delegated public rights and that a vast history of Supreme Court precedent upholds that position; that because the enforcement action is vindicating a public right, the Seventh Amendment does not prohibit adjudication by a jury-less administrative forum, and Congress properly and constitutionally delegated power to the executive branch to make the forum choice for the underlying SEC enforcement action; and finally, that ALJs perform adjudicative functions resulting in recommendations (subject to agency review) and are not central to the functioning of the executive branch for the purposes of Article II removal protections.

The Fifth Circuit denied the SEC’s request for an en banc rehearing.19

In this entirety of context, the SEC framed the following issues on its request for certiorari: (1) whether statutory provisions that empower the SEC to initiate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment; (2) whether statutory provisions that authorize the SEC to choose to enforce the securities laws through agency adjudication instead of filing a district court action violate the nondelegation doctrine; and (3) whether Congress violated Article II by granting for-cause removal protection to administrative law judges whose heads enjoy for-cause removal protection. The SEC argued that the Fifth Circuit majority opinion facially invalidated the provisions of the Securities Act, Exchange Act, and Advisers Act that empower the Commission to bring administrative proceedings seeking civil penalties and disgorgement. The Court further held the provision originally in the Administrative Procedures Act that makes ALJs removable only for cause20 is invalid as applied to SEC ALJs. The SEC argued that the Fifth Circuit majority opinion conflicts with other decisions of the U.S. Supreme Court, is in contrast to Congress’ clear intent making ALJs removable only for cause over 80 years ago,21 and “casts a cloud” on federal statutes that are relied upon by agencies conducting adjudications in the public trust.22

Endnotes

1With immense thanks to my clerk, Sigifredo Perez, for his careful review and editing of this piece on his own time.

2Petition for Writ of Certiorari, Sec. & Exch. Comm’n, v. Jarkesy, No.

22-859 (filed Mar. 9, 2023).

315 U.S.C. § 77h-1.

4See 15 U.S.C. §§ 78o(b)(4), (6); 15 U.S.C. § 78u-3.

5See 15 U.S.C. §§ 80b-3(e), (f), (k).

6See 15 U.S.C. § 80a-9(b).

7Jarkesy v. United States Sec. & Exch. Comm’n, 48 F. Supp. 3d 32 (D.D.C. 2014), aff’d sub nom. Jarkesy v. S.E.C., 803 F.3d 9 (D.C. Cir. 2015).

8John Thomas Capital Mgmt. Grp. LLC, d/b/a Patriot28 LLC, Initial Decision Release No. 693, 2014 WL 5304908 (Oct. 17, 2014).

9Brady v. Maryland, 373 U.S. 83, 87 (1963) (regarding the Division’s responsibility to make investigatory files and material exculpatory evidence available to the respondent).

10See 15 U.S.C. § 77q(a).

1115 U.S.C. § 78j(b).

1215 U.S.C. §§ 80b-6(1), (2), (4).

13See, In the Matter of John Thomas Cap. Mgmt. Grp. LLC, d/b/a Patriot28 LLC & George R. Jarkesy, Jr., Release No. 5572 (Sept. 4, 2020).

14Lucia v. S.E.C., 138 S. Ct. 2044 (2018).

1515 U.S.C. § 78j(b); 17 C.F.R. § 240.10b-5(b).

1615 U.S.C. § 77q(a)(2).

1715 U.S.C. § 80b-6(4); 17 C.F.R. § 275.206(4)-8.

18Jarkesy v. Sec. & Exch. Comm’n, 34 F.4th 446, 465-66 (5th Cir. 2022).

19Jarkesy v. Sec. & Exch. Comm’n, 51 F.4th 644 (5th Cir. 2022).

205 U.S.C. § 7521(a).

21Administrative Procedure Act, Pub.L. No. 79–404, § 11, 60 Stat. 237, 244 (1946).

22Petition for Writ of Certiorari, Sec. & Exch. Comm’n, v. Jarkesy, No. 22-859 (filed Mar. 9, 2023).

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The Federally Certified Court Translator : A Chimera Hiding in Plain Sight

“The best beloved of all things in My sight is Justice …”

No country is immune from contradictions. The United States is no exception. That a nation engendered from the noblest ideals and aspirations of the Enlightenment would deny a fair portion of its inhabitants due process until almost two centuries had passed since its inception is particularly noteworthy and curious. For it was throughout this entire period that any of the legion of unfortunate souls living in the continuously expanding territory north of Mexico and south of Canada unfamiliar with the English language could be arrested, incarcerated, tried, convicted, and sentenced in a U.S. court while remaining oblivious of the proceedings resulting from whatever accusations, charges, or imputations had been brought against them.1

Such a prolonged shortcoming of American justice was finally remedied—at the federal level, anyway—during a session of the 95th Congress, when, with no discernible pomp or fanfare to properly reflect the gravity of the accomplishment, president Jimmy Carter

enacted Public Law 95-539, christened as the Court Interpreters Act, on Oct. 28, 1978.2 Its stated purpose, laid out prosaically in the preamble, reads:

To provide more effectively for the use of interpreters in courts of the United States, and for other purposes.

Having now become law, the act, sans preamble, was incorporated as §§ 1827, 1828, and 602 of Title 28 of the United States Code, where, in the entirety of its 2,565 words, the terms “translation” and “translator” are, conspicuously and deliberately, absent.3 More on this later. For now, a review of some fundamentals is in order.

Back to School

Every trade and every craft generates its appurtenant jargon. While the terms interpretation and translation are often conflated by the lay public,4 there are pronounced distinctions between the two enterprises. Interpretation, in its purest sense, pertains to the transfer of one language’s message to that of another language orally; translation, the same, but textually. Thus, a person speaking in one language wishing to be understood by a person that speaks a different language requires the intercession of an interpreter who, through the process of interpretation, conveys the message in a language understood by the intended listener. Conversely, a document written in one language for dissemination in another requires the interces-

FRANCISCO DÍAZ

Bahá’u’lláh

sion of a translator who, through the process of translation, makes the message understandable for the intended reader.

Naturally, hybrid situations arise where the two activities overlap, such as when the meaning of a text in one language is transferred orally in another (known as “sight translation”) or when the meaning of an utterance in one language is memorialized in writing in another (a translation of a recorded speech or conversation, for example). Despite these partial conjunctions, the differences between the two activities of interpretation and translation, as well as the skill set required to perform each competently, are sufficient that academic institutions have, historically and traditionally, regarded them as two separate disciplines,5 each offered as an independent academic track.6 Accordingly, the various bodies that oversee the regulation7 and certification of interpreters and translators in the United States mirror this demarcation.8

Another category that is important to highlight here is the case of transcription, which is defined as the written record of spoken words and utterances in the same language in which they are spoken or recorded. Examples include the transcripts of court proceedings kept by court reporters and the transcripts of historical speeches or proceedings of every stripe. One variant of transcription of particular interest here, which blends the frontiers of interpretation and translation as such, involves the forensic transcription of recorded statements or conversations in their original language and their translation into English for submission as evidence in judicial proceedings, whether civil or criminal.

It is hoped that the cursory explanation above has already impressed upon the reader that interpretation and translation are to be regarded as two independent disciplines, a distinction not lost on a now-deceased former member of the U.S. House of Representatives serving the interests of the Sixth Congressional District of Kentucky. June 13, 1978, marks the day that John Bayne Breckinridge introduced a piece of legislation designated as H.R. 13118 in the same 95th Congress that would end up adopting the Court Interpreters Act later that year. The aspiring bill was summarized as follows:

Federal Translation Coordinating Council Act – Establishes as an independent organization in the executive branch the Federal Translation Coordinating Council. Requires the Council to: (1) make such recommendations as may be necessary to coordinate all Federal programs, activities, and endeavors involving translation; (2) determine, evaluate, and, where possible, improve the quality and quantity of translation available to interested persons; (3) determine the number and capabilities of translators whose services may be available to the Federal Government; (4) determine which institutions of higher education in the United States provide training in skills required for translation; (5) determine the needs of the Federal Government for translation services; and (6) determine such principles, standards, and procedures for translation as the Council may deem appropriate

Requires the Council to issue a report to the President, the Congress, and the Secretary of State.

Provides for the termination of the Council.9

That final stipulation would prove prophetic, as the bill arrived stillborn, perhaps the result of an unspoken fear that, had it passed legislative scrutiny and become law—like its fraternal twin did later in October—the slew of unfortunate individuals facing the prospect of having to cite and recite the baroque tongue twister that could

have been the Federal Translation Coordinating Council Act would erupt into open rebellion.10 Whatever the reason for its demise, this arcane piece of proposed legislation remains to this day the closest that this revered nation has come to adopting a comprehensive federal standard regulating the profession of translation and the certification of translators.11 Had it been enacted, a great deal of the confusion and distortion now circulating about the qualifications of interpreters vis-à-vis translators and their respective roles in the federal courts would likely have been remedied. Alas.

To the extent that nature abhors a vacuum, the void created in the absence of a federal translation standard elevated the status of the federally certified court interpreter in the eyes of lawyers—defense lawyers, in particular—and judges. Some federal court interpreters took advantage of the situation, advancing claims that not only were they the only ones qualified to interpret in federal courts,12 but that they were the only ones qualified to proffer evidentiary translations, as well.13 Defense attorneys took note, frequently impugning expert witness testimony and evidence submitted by otherwise qualified translators on the specious grounds that they were not federally certified court interpreters 14 Unsuspecting judges would either disqualify translators or disallow them from offering expert testimony for lack of “proper” federal qualifications. A law originally intended to further justice ironically ended up contaminating it through the actions of a few bad actors. In the interest of restoring justice, we will now set this warped record straight.

The Interpretation and Translation Industries in the United States: Welcome to the Jungle

Having laid the foundation preceding this section, those reading this article must brace themselves for the statement that follows. The state of the regulation, qualification, certification, and oversight of the interpretation and translation industries in this country can be described without any pretense of hyperbole as primeval. As a result, widespread ignorance and confusion revolving around the qualifications of interpreters and translators abound. As we saw earlier, some of these unfortunate misunderstandings have crept into the federal judiciary.

As of this writing, there is no universal, comprehensive, all-embracing, transferable credential or standard as regards the qualifications and certification of either interpreters or translators in the United States, whether in the private or public sectors. None. Regulation of the interpretation and translation industries in this country is, to phrase it metaphorically, a proliferation of competing fiefdoms—but no king or queen.

We will first address the certification and oversight of court interpreters in the United States, particularly of those serving in federal courts of law, as they enjoy the admiration—fully earned and fully deserved—of the lay public, of fellow interpreters and translators, of attorneys, and, above all, of the judges they serve so assiduously.

Only one explicitly federal standard exists as regards the enterprise of interpretation. Enshrined in the Court Interpreters Act, its scope, as its name suggests and its preamble states in clear and emphatic terms, is restricted exclusively to the certification and oversight of interpreters providing interpretation services in U.S. courts. To paraphrase, federally certified court interpreters, highly skilled and regarded as they are, are certified, only and exclusively, to provide interpretation services in United States courts.15 Some reciprocity arrangements are available to them to provide their in-

terpreting services in select state courts without having to undergo a certification process from scratch, but these vary from state to state.16 Beyond that, were they to seek positions as interpreters or translators at the U.S. Department of State, say, or as contract linguists or language analysts at the FBI, or as language professionals at the United Nations (UN) or the Organization of American States (OAS), or as medical interpreters at any hospital or health-care facility having a formal in-house staff of interpreters, and so forth, they would nevertheless need to submit to each respective entity’s own internal language testing and credentialing protocol regardless of their extant qualifications and certification as federal court interpreters.

To reiterate, every federal, state, and local entity, as well as every private entity, with a formal in-house corps of language professionals—whether interpreters, translators, or a combination of these— independently tests and qualifies language-proficient candidates according to its internal norms and policies irrespective of every other entity. With the exception of reciprocity referenced in the previous paragraph, in spite of their vaunted credentials, federal court interpreters expecting blanket acceptance at any other interpretation or translation entity within the federal government based on the strength of their extant federal certification will meet certain disappointment.

As for the federal regulation and certification of translators in the United States, we enter an open weed field, albeit with some fencing.17 One highly regarded and coveted certification is offered by the American Translators Association (ATA),18 which grants translators wishing to obtain a recognized and respected credential a certification earned following the successful translation of test passages administered under controlled conditions and subsequently graded anonymously by a panel of qualified translators who determine whether the candidate delivers what they deem to be a competent and professional-level translation. The tests are offered in a multiplicity of language pairs, one of which is always English. Moreover, certifications are granted separately for each direction of a translation, so that candidates earning a certification for translating from English into French, for example, must sit for and pass a separate examination if they seek certification for translating from French into English. The credential is well respected and highly regarded, but, as the ATA’s name suggests, it is a national body, not a federal one. As a professional association of translators and interpreters, it derives no authority from either the executive, legislative, or judicial branches of the federal government.

Another well-respected organization is the National Association of Judiciary Interpreters and Translators (NAJIT), founded in the same year that delivered to us the Court Interpreters Act. For a time, it had the laudable accomplishment of establishing “a rigorous certification exam from 2001 to 2012, but this certification program was discontinued, as certification became available through the state courts across the country.”19 As with the case of the ATA, it, too, is a national body, not a federal one.20

Like the federal court interpreter, a translator possessing the certification granted by the ATA in a language pair, or several language pairs, cannot expect blanket acceptance from any entity that enlists the services of qualified translators—whether private, local, state, or federal. Thus, even an ATA-certified translator seeking to provide services as a contract linguist or as a language analyst for the FBI, for example, must first submit to and pass that agency’s proprietary language test battery.21 As would an FBI linguist wishing to secure a

contract or employment with the U.S. Department of State’s Office of Language Services, either as a translator or interpreter, be subject to the that agency’s tests. In fact, a person lacking ATA certification, or any other recognized translation credential, could be hired or contracted by either the U.S. Department of State or the FBI,22 provided that they first passed the proprietary language test battery and qualification process that each requires.23

The myth of the carte-blanche interpreter and translator is now slain.

The Federally Certified Court Translator [sic]

So then, where does this leave us for the purposes of justice? In the face of the chimera that is the federally certified court translator, where may the federal courts turn to for guidance or clarification or, at least, a putative federal standard as regards the qualifications and certification of translators? As it turns out, the most definitive pronouncement is hiding in plain sight and offered by none other than the federal courts themselves.

The various volumes comprising the Guide to Judiciary Policy (henceforth, the Guide) govern the operations of the federal judiciary.24 Volume 5 of the Guide25 devotes itself entirely to the oversight of federal court interpreters.26 Its policies and guidelines “are promulgated by the Director of the Administrative Office of the U.S. Courts (AO) as authorized by the Court Interpreters Act….”27 Said director “shall prescribe, determine, and certify the qualifications of persons who may serve as certified interpreters.”28

Amid a host of considerations attending to the needs and management of federal court interpreters in U.S. courts, the matter of the presentation of translated evidence is not addressed until the very end of said Volume 5, where we find:

§ 550.10 English Language Requirement

(b) When an evidentiary document is submitted to the court in a language other than English, the presiding judge may issue an order to the party submitting the documents that requires the documents to be filed in English. If required, translation of evidentiary documents is the responsibility of the party tendering the documents to the court. [emphasis added]

Note that the language explicitly excludes court interpreters by placing the onus of translation on “the party submitting the documents.”29 And then in a later subsection, in what is effectively the locus of this article, which addresses both the translation of documents filed with the federal courts and what constitute qualified translators, we come upon the most definitive pronouncement on the qualifications of translators in the entire federal canon:

§ 550.20.10 Finding Qualified Translators

(a) While it is generally expected that all documents filed with the court will be in English, occasionally there is a need to have documents translated into English. The Court Interpreters Act does not address written translation requirements, and the Federal Court Interpreter Certification Examination (FCICE) tests high-level interpreting skills in both English and Spanish but does not test for translation skills

(b) Qualified translators can be located through the American Translators Association or any other organization that tests translation ability in the appropriate language combination, such as:

• the Language Services Unit [sic]30 of the State Department, or

• the Language Services Section of the Federal Bureau of Investigation. [emphasis added]

Volume 5 of the Guide closes with a reiteration of Subsection 550.20.10(a) cited above:

§ 550.20.40 Payment Responsibility for Translations and Transcriptions

(a) Translations and transcriptions are not within the scope of the Court Interpreters Act, and payment for such services may not be funded from the general authorization for contract court interpreting. [emphasis added]

(b) Local funds should be used to award a contract for translation and transcription services.

In the face of such explicit language that leaves little room for any meaningful analysis, we bring this section, this article, and over four decades of misunderstandings to an overdue close.

In Conclusion

It remains unlikely that Breckinridge’s bill will ever be resurrected. Perhaps something better may one day rise from its ashes. Time will tell. Still, and in the absence of a comprehensive federal translation certification standard, the federal courts have tacitly placed the qualifications of translators working at the U.S. Department of State and the FBI and those earning certification from the ATA on equal footing with the qualifications of federally certified court interpreters and with ample elbow room for their peaceful coexistence in the service of justice. Imperfect as it is, such an acknowledgement by the federal courts will have to serve for the time being as a suitable and surrogate federal certification for translators. Deo gratiam habeamus. 

Francisco Díaz is a career English-Spanish editor, translator, and forensic transcriptionist/translator providing language services in both the public and private sectors. He is an independent researcher and author of The Elements of Bilingual Style and Los elementos del estilo bilingüe, both of which are effective remedies for insomnia.

Endnotes

1It would be difficult not to pin such a fundamental oversight of justice on anti-immigrant sentiment that has pervaded certain elements of the national consciousness from its earliest days, but to explore the historical and sociological aspects of this phenomenon would far exceed the scope of the present article. Moreover, it would require a different author. We will relegate this unhappy circumstance to a mere footnote, happily.

2A Saturday. One cannot help but admire President Carter’s sense of moral urgency. After an already two-century-long lapse of justice, signing the bill into law could have surely waited until Monday.

3It was expanded 10 years later by the section comprising Title VII of the Judicial Improvements and Access to Justice Act, Public Law 100–702, christened as the Court Interpreter Amendments Act of 1988, which adds an additional 1,520 words in which two key terms remain, conspicuously and deliberately, absent.

4For an outstanding example, look no further than Rule 604 of the Federal Rules of Evidence: “Interpreters: An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true

translation.” [emphasis added]

5A fact eloquently captured in the first paragraph of § I of Chapter 3 of the Federal Court Interpreter Orientation Manual and Glossary published by the Administrative Office of the United States Courts, last revised Sept. 2, 2020: http://www.uscourts.gov/sites/default/ files/federal-court-interpreter-orientation-manual_0.pdf.

6A few institutions of higher learning combine them into one field of study. Though this approach is not intrinsically incorrect, it should be noted that it is by far the exception among academia worldwide.

7Inchoate at best. The word is used here with extraordinary latitude as it applies to the United States, as we shall see.

8We exclude from here intermediary and sign language interpreters, as their activity is confined within a single language. Their talents and qualifications are fully recognized here, nonetheless.

9Quoted verbatim: http://www.congress.gov/bill/95th-congress/ house-bill/13118?s=1&r=13.

10Say it three times in a row, if you dare. It clearly stood no chance against the Court Interpreters Act, which can be heard chuckling in amusement to this day.

11The bill’s remains rest in peace amid a collection of Breckinridge’s papers housed in a library at the University of Kentucky.

12A privilege fully earned and never in dispute.

13A practice repeatedly and vehemently censured by the Administrative Office of the United States Courts (whose authority derives from the Court Interpreters Act) and discouraged by the National Association of Judicial Interpreters and Translators (NAJIT) in its position paper titled General Guidelines and Requirements for Transcription Translation in a Legal Setting for Users and Practitioners, revised 2019: http://www.najit.org/wp-content/ uploads/2016/09/Guidelines-and-Requirements-for-TranscriptionTranslation.pdf.

14Easily accomplished by checking the National Court Interpreter Database (NCID), in which the names of federal court interpreters certified after passing the Federal Court Interpreter Certification Examination (FCICE) are automatically registered in its database: http://www.uscourts.gov/services-forms/federal-courtinterpreters/national-court-interpreter-database-ncid-gateway.

15The Administrative Office classifies two additional categories of interpreters—professionally qualified interpreters and language skilled/ad hoc interpreters—but these will not be treated here in detail for the sake of brevity. Additional details may be found at: http://www.uscourts.gov/services-forms/federal-courtinterpreters/interpreter-categories.

16These will not be explored here since they exceed the focus of this article, which seeks to concentrate on what is germane to the federal theater.

17“Unlike some professions in the United States (medicine and law, for example), translation is relatively unregulated. Requirements for being a practicing translator are not uniform and are largely left up to the translator’s employer or translation agencies. “Indeed, there is no all-purpose certification available to translators comparable to passing the bar exam or the medical boards.” See U.S. Department of State’s publication titled Guidance on Becoming a Professional Translator: http://www.state.gov/wp-content/uploads/2019/06/ Guidance-on-Becoming-a-Professional-Translator.pdf

18Founded in 1959, nearly 20 years before the enactment of the Court Interpreters Act.

19NAJIT, http://www.najit.org/resources/the-

profession/#certification.

20There are numerous other national professional associations attending to interpreters and translators which are not explored here. The point worth bearing in mind is that none are federal entities.

21A highly respected credential in its own right, as it demands proficiency in both translation and interpretation. Moreover, as for the translation component, whereas ATA certification is granted on a strictly pass/ fail basis, the FBI’s Foreign Language Test Battery translation component is graded on a calibrated proficiency scale as established by the Interagency Language Roundtable. See Federal Bureau of Investigation, http://www.fbijobs.gov/sites/default/ files/2022-05/Independent%20Contract%20 Linguist.pdf and www.govtilr.org/Skills/ AdoptedILRTranslationGuidelines.htm

22Both legitimately federal entities and both of whose respective translation tests are of at least a comparable level of difficulty and complexity as those administered for ATA certification. See letter from Renee M. Meyer, National Security Agency/Central Security Service Senior Language Authority, published in the Letters to the Editor section of The ATA Chronicle, June 2002, Volume XXXI, Number 6, p. 9, from the lower middle column through the middle of the third column.

23As a general rule, the U.S. State Department’s Office of Language Services prefers that translator candidates have at least five years of what it deems to be professional translating experience before sitting for its translation test. Possessing ATA certification in any language pair, though preferred, is not required. See U.S. Dept. of State: http://www.state.gov/translationlinguists and http://www.state.gov/wpcontent/uploads/2019/06/Guidance-onChoosing-Your-Moment.pdf.

24Save for the Supreme Court of the United States, per § 130 of Volume 5 of the Guide to Judiciary Policy.

25Last revised Apr. 15, 2021, see U.S. Courts: http://www.uscourts.gov/sites/ default/files/guide_vol05.pdf.

26It is also referenced as Appendix II of the Federal Court Interpreter Orientation Manual and Glossary, p. 38: http://www.uscourts. gov/sites/default/files/federal-courtinterpreter-orientation-manual_0.pdf

27Guide to Judiciary Policy, Volume 5, Chapter 1, § 120(a).

28U.S. Courts: http://www.uscourts.gov/

services-forms/federal-court-interpreters.

29A policy supported by the National Association of Judicial Interpreters and Translators (NAJIT), as it would create a decided conflict of interest for the court interpreter. See NAJIT’s position paper titled General Guidelines and Requirements for Transcription Translation in a Legal Setting for Users and Practitioners, revised 2019, pp. 5–6, under the subheading titled “THE TTE AS INTERPRETER?”: http://www. najit.org/wp-content/uploads/2016/09/ Guidelines-and-Requirements-forTranscription-Translation.pdf

30The name is stated as the Office of Language Services in the U.S. Department of State’s website: http://www.state.gov/ bureaus-offices/under-secretary-formanagement/bureau-of-administration/ office-of-language-services/

Judicial Profile Writers Wanted

The Federal Lawyer is looking to recruit current law clerks, former law clerks, and other attorneys who would be interested in writing a judicial profile of a federal judicial officer in your jurisdiction. A judicial profile is approximately 1,500-2,000 words and is usually accompanied by a formal portrait and, when possible, personal photographs of the judge. Judicial profiles do not follow a standard formula, but each profile usually addresses personal topics such as the judge’s reasons for becoming a lawyer, his/her commitment to justice, how he/she has mentored lawyers and law clerks, etc. If you are interested in writing a judicial profile, we would like to hear from you. Please send an email to social@fedbar.org.

Women and Children Last: The Destruction of the Afghan Women Judiciary1

HON. LISA WALSH, US DIRECTOR FOR NORTH AMERICAN REGION, IAWJ

In August 2021, the Taliban swept through Afghanistan, retaking the country without much resistance. The international community watched, aware that the fallout would affect women disproportionately—especially professional and educated women. International organizations and governments began rescue attempts of different groups of Afghans. A group of girls comprising the Afghan robotics team and a group of women cyclists were rescued by international groups. The United States began evacuating “Special Immigrants,” such as interpreters and drivers, who worked for and with the U.S. military and its contractors. But no efforts were made to secure the safety or evacuation of the women judiciary in Afghanistan. The Afghan women judges comprised AWJA, the Association of Women Judges of Afghanistan, a chapter of The International Association of Women Judges (IAWJ). IAWJ had a long history helping found and develop the Afghan chapter. IAWJ members and leaders knew the Afghan judges very personally and for a long time.

After July 2021, the women judges of Afghanistan began sending urgent messages to their IAWJ counterparts around the world. Soon after sweeping through the country, the Taliban began making death threats against the women judges—many of whom had sentenced the same Taliban members now taking control of the country. “Night letters,” or written signed death threats, were delivered to the homes of the judges. Their biometric information was seized from the Supreme Court of Afghanistan. Televised threats were made. And the women judges knew that these threats were not idle hyperbole but were very real indeed. Just eight months prior, in January 2021, two women judges who were employed at the Supreme Court of Afghanistan, were assassinated on the way to work.

In July 2021, as the Taliban moved through Afghanistan toward Kabul, a core group of international IAWJ judges and Dari interpreters quickly organized and began contacting the women judges of Afghanistan. The initial goal of the group was to be a repository for the vital documents, data, and family information of the judges. But it morphed into a support line for rescue efforts to save the lives of these women and their families.

Background

Women served as judges before the first Taliban takeover. But after the Taliban took control of the country in the 1990s, there were no women judges permitted to serve in Afghanistan. After 2001, U.S.

Fall of Afghanistan and Death Threats to Afghan Women Judges

government entities and NGOs assisted in the reconstruction of the Afghan court system, including assisting in the creation of anti-corruption, anti-terrorism, family, civil, and criminal courts. The IAWJ obtained a grant to reprint the Afghanistan code of laws, which had been destroyed and banned under the Taliban. Before the collapse of Afghanistan in August 2021, there were 276 women judges sitting on all types of courts.

Over the last 20 years, Afghan women judges have served in all divisions of courts, except for positions as justices on the Supreme Court. Judge Anisa Rasooli, was the first and only judge nominated for a position on the high court, but she was never confirmed. In some cases, the women judges administered the rule of law side by side with the U.S. military, in the Bagram Detention facility, where they presided over terrorism cases affecting U.S. military personnel.

In 2003, the IAWJ formulated a United States-based training program for the Afghan women judges. This program—created and led five times from 2004 through 2009 by Judge Patty Whalen (ret.) in Vermont—secured U.S. State Department funding to train 18 women judges from Afghanistan, both in the United States and in Kabul. More funding and training occurred from 2011–2014. The training programs were effective and well-received by the Afghan women judges. The trainings had the side benefit of fomenting personal and meaningful relationships between Afghan and IAWJ judges.

Threats and Evacuation

Approximately 200 women judges have been safely evacuated and are now spread throughout many countries in the world. Few are in the United States. Now, there are 55 who remain in Afghanistan, along with their families. All who remain are stripped of their positions; most are in hiding or in safe houses. Most who remain have limited money and food and no guarantee of safety. All are under threat by Taliban or insurgent group members whose cases they heard, as well as by the former prisoners whom they sentenced. Presently, the Taliban are conducting house-to-house searches for documents, weapons, cell phones, and similar items. The remaining women judges move frequently, yet they, and their families, are still

at great risk. Even where judges have been able to leave, their family members in Afghanistan remain in danger.

Before the fall of Kabul, the women judges were targeted with legitimate death threats. One judge sentencing a convicted criminal in her courtroom was told by her defendant, a Taliban member, “Today, you sentence me. Tomorrow, I sentence you.” He knew that once the Taliban took over, the prisons would be opened and prisoners released. In fact, this came to pass in August 2021. Calls, texts, and letters soon appeared at the women judges’ homes and on their phones, threatening death and reprisal. Why? Because they presided over male litigants. Because they sentenced Taliban and other insurgent group members. Because they served in family court tribunals and made decisions contrary to the interest of the fathers in these cases. Many of the trials were televised throughout the country. Thus, the women judges are known in the community by sight. Their addresses are also known. Their family members are known.

Incomplete Exodus

In August 2021, flights were dwindling, and the Kabul airport was closing fast. Only certain Afghans whose names were on U.S. Department of State manifests were permitted entry to the airport by U.S. soldiers at the gate. Many of the women judges and other women legal professionals, activists, and academics, were placed on lists for flights to other countries yet were barred from entering the airport gates because their names did not appear on approved lists. Spain, Poland, the United Kingdom, Australia, New Zealand, and Romania granted early visas to some of the women judges. To make it through the gauntlet of soldiers and barbed wire, these women were instructed to draw symbols on their palms with sharpie markers, wear the country’s colors, and shout the country name (“Espawhen they reached a certain gate at the appointed time. Judges bound for Spain and Poland made it through; those bound for Romania were held at a checkpoint. Some of the judges trudged through open sewers, holding their children over their heads to reach the gate.

One judge, who was in constant communication with IAWJ, relayed that the Taliban were beating Afghans who were trying to get through the gate. She begged for an escort to see them safely through. Her conversation with IAWJ through WhatsApp is transcribed here:

[21:52, 18/08/2021] Judge B: Is there any possibility of escort?

[21:52, 18/08/2021] Judge B: Plz let us know

[21:52, 18/08/2021] Judge B: We are in a very bad situation

[21:54, 18/08/2021] Judge B: Lots of people pushing and the

A handwritten death threat received by an Afghan woman judge in August 2021. When translated, it reads: “In the name of God, as the Islamic movement of Taliban has information, you [name] have worked with Americans and invalid government and you take decision contrary to Sharia and Islam and according to the Islamic Sharia; your punishment is death. At first; it is requested you to do holy works according to the Islam movement and do Jihad against Americans, atheisms and invalid governments and do your trustful and Islamic obligations and if you do other than it and you do not accept our request; thus; your punishment is death because your death is essential for us, the final decision of the Islamic emirate is that; you should end your duty and in case of any contrary; we implement our law and regulations on you.”

talibans are hitting us

[21:54, 18/08/2021] Judge B: We do not know we are in right situation

[21:56, 18/08/2021] Judge B: We are at a crowded door do not know is this right?

[22:01, 18/08/2021] IAWJ: Let me check. Are you in contact with A. or with anybody at the airport

[22:02, 18/08/2021] Judge B: Yes but she said wait

[22:02, 18/08/2021] Judge B: Did not answer yet

[22:03, 18/08/2021] IAWJ: Who said wait? I know it is difficult but if I understand the situation better it will allow me to help more effectively

[22:06, 18/08/2021] IAWJ: V. is talking to the [authorities]you will be fine Inshallah.

[22:17, 18/08/2021] Judge B: I do not want to make you stressed but really it is terrible they are hitting people

[22:18, 18/08/2021] IAWJ: Can you wait somewhere safer?

[22:19, 18/08/2021] Judge B: We can go back to the parking if we do not miss the flight

[22:20, 18/08/2021] IAWJ: If you are in contact with A., have you asked her whether it is okay to wait in the parking area?

[22:24, 18/08/2021] Judge B: A. does not answer

[22:29, 18/08/2021] IAWJ: V. is trying to speak to the [country] ambassador at the airport. Try to keep yourself safe. Have faith.

[22:29, 18/08/2021] IAWJ: The plane is there and they are waiting for you

[22:31, 18/08/2021] Judge B: Ok thanks

On August 31, 2021, a bomb exploded at the gate where our judges and others had been trying to gain entry to the airport. Many were killed, including interpreters who had worked with the U.S. military.

In the past year, small groups of Afghan women judges and their families have been able to leave with the assistance of faith-based nonprofit organizations in the United States, international legal organizations, and other remarkable people and entities. Some of our judges were flown to “lily pad” countries—places of temporary refuge but not asylum. The United Arab Emirates, for example, allowed temporary refuge to Afghans in a detention camp called Humanitarian City while they seek visas for other countries. Some are in countries where they may seek asylum, but there is no community, no common language, no work opportunities, and little support. Very few have been granted entrance to the United States or Canada.

Searches and Threats Remain

Since August 2021, the lives of the women judges who remain in Afghanistan have been fraught with danger. Taliban officials have

Afghan women judges and their families wade through knee-deep water in an attempt to reach safety in the wake of the Taliban’s rise in 2021.

Above left: Judge Vanessa Ruiz (US) sent the Afghani women judges an example of the symbol for “judge” to mark on their hands when evacuating. Above right: Judge Ruiz also sent the Afghani women judges an example of the abbreviation for their destination country (this one is Poland) to mark on their hands when evacuating.

searched homes, and the women and their families have been living with extended family or in safe houses.

Why the US Has a Special Connection to Afghan Women Judges

Afghan judges worked with U.S. military and diplomatic entities and NGOs to build courts, establish, and enforce rule of law, and bring terrorists to justice. Women judges worked in courts that U.S. officials helped create and often enforced anti-terrorism and criminal laws. In many other countries, assignments to such courts are viewed as unsuitable for women. But in Afghanistan, the women judges were given some of the most dangerous and unpopular assignments. They viewed their own judicial work as a holy mission. They were fiercely proud of the jobs they did.

One judge assigned to the anti-corruption court proudly talks about one of her cases. She served on a three-judge panel hearing a trial on a corruption charge against a high-ranking public official. Her judicial counterparts refused to apply the clear penal law requiring a prison sentence. She was the only judge who wrote a dissenting opinion explaining that a prison sentence was required by law. The case was appealed to the Supreme Court of Afghanistan which overturned the majority opinion and upheld her sentence as correct. She recounts this as her proudest moment as a judge. She carried out the law even though supporters of the convicted government official fired automatic weapons outside of her house to intimidate her. She exemplified the rule of law, a shared ethos with our own court system.

The women judges undoubtedly worked in the U.S. interest, enforced rule of law principles under democratic legal traditions, and sentenced terrorists who were responsible for killing U.S. soldiers. One such judge presided over a terrorism case where a bomb killed and injured 400 people.

Who Are the Afghan Women Judges?

They are brave. They are resourceful, highly educated, capable, smart, and hardworking professionals. Those who were lucky enough to leave Afghanistan are often in legal and physical limbo. Those who remain in Afghanistan are in real peril.

A few of the women judges who remain in Afghanistan, as well as those who were able to escape, are willing to be interviewed. Those who are in Kabul are understandably nervous about revealing their identity or placing members of their family in danger. But with adequate safeguards, they understand the importance of getting their story to the world and are willing to take the risk.

They are overwhelmingly young and have small children. Some even gave birth in the days during and after the evacuation! Some are more seasoned and accomplished in their field.

Afghan Judges in the US

There are now 25 Afghan judges in the United States who served on the civil, criminal, narcotics, anti-corruption, and violence against women courts. Some left family members behind and may not be willing to show their name and face on television for fear their family will be punished.

In my roles as the U.S. director of IAWJ and board member of National Association of Women Judges, I am coordinating efforts to mentor and support these judges. I organized mentor teams around the country to help support and befriend these women. They are looking for work, learning English, and some are trying to reaccredit themselves in the legal profession.

Collateral Witnesses

A small group of leaders from the IAWJ, all judges serving in courts around the world, has worked for months assisting the judges with

continued on page 39

One of the Afghan women judge’s homes is shown having been ransacked and searched by the Taliban.

FEDERAL REENTRY PROGRAMS: How Best to Measure Their Success?

A discussion of the “Evaluation of a Federal Reentry Program Model.”

HON. STEPHANIE K. BOWMAN

In response to an era of mass incarcerations, state and federal courts have been implementing programs to assist select individuals upon release from prison. These programs aim to reduce the recidivism rate and encourage successful reintegration into society. As of January 2019, the total U.S. prison population topped 2.3 million people.1 Of that 2.3 million people, approximately 10% are in federal custody.2

Successful reintegration is a major a key component to reducing the prison population. As the graph in Figure 1 demonstrates, approximately 50% of all federally incarcerated people are sentenced to less than 10 years in prison, while only 2.6% are sentenced to life in prison.

In addition to those detained in federal custody, as of Sept. 30, 2018, there were 129,706 individuals on supervised release.4 The sentencing guidelines, though advisory, often set forth that a term of supervised release should be imposed as part of one’s sentence. A term of supervised release is often five years or less, but certain convictions allow for an order of supervised release that continues for life.5 As of May 2019, 97% of the federal prison population was also sentenced to serve a period of supervised release upon completion

of their incarceration.6 If an individual violates a term or condition of his supervised release, he could be ordered by the sentencing judge to return to prison or have more stringent conditions imposed.

Conditions of supervised release that can be imposed include some of the following: do not violate any federal, state, or local law; report to your probation officer as directed; be truthful in all responses to inquiries from your probation officer; allow your probation officer to visit you at any time; take drug tests as required; pay fines as ordered; do not drink alcohol; be employed; support dependents; do not leave the judicial district without permission; and do not associate with known felons or anyone engaged in criminal activity.7

Navigating the transition from prisoner to law-abiding member of society while adhering to the conditions of supervised release can be challenging. Many who are returning from incarceration to their communities lack sufficient social support and the resources necessary to be successful.8 They face restrictions on where they can live and work and often have other obstacles to overcome, such as dealing with garnishments from prior child support orders and suspended drivers’ licenses. These hurdles can cause immediate setbacks. Probation officers, who supervise individuals on both supervised release and probation, help to navigate these challenges, but sometimes additional support is needed. In an attempt to provide this extra support and aid individuals as they “re-enter” society, federal courts began implementing reentry programs, after seeing successful

results in the state courts.9 The overall goal of these reentry programs is to provide advice, support, and guidance to individuals as they rebuild their lives upon release from the Federal Bureau of Prisons.

Because there is not one specific reentry program model that is used in the federal judiciary, it has been difficult for researchers to evaluate the effectiveness of these programs.10 Despite this challenge, the Judicial Conference Committee on Criminal Law asked the Federal Judicial Center (FJC) to study reentry programs. Specifically, the FJC was asked “to undertake a study to ‘assess the operational aspects, outcomes and cost-effectiveness’ of federal reentry programs.”11

To do this, the FJC determined that a model reentry program would need to be designed and then implemented in several district courts. The FJC would then analyze the data collected from these model programs and prepare a report. The designed model included two types of reentry programs: one presided over by a judicial officer and the other led by a probation officer without judicial involvement. The study then looked at the graduation rates, revocation rates, and recidivism rates, as well as the costs, associated with each program.

In May 2016, the FJC released its final findings in an article titled “Evaluation of a Federal Reentry Program Model” (hereinafter, the Evaluation). The Evaluation found “no reduction in revocations of supervised release as a result of participation in the reentry programs based on the model program policy”12 and “no reduction in felony arrests after release from prison as a result of participation in the reentry programs based on the model program policy.13 It further “concluded that the reentry program model was not cost effective as a means of reducing revocations and rearrests among newly released offenders.”14

This conclusion paints with a broad brush and implies that all reentry programs are not worth the court’s financial resources, or worse, are unsuccessful. However, there are many reentry programs in the federal court system that are having successes.15 Of course, this is not to say that these programs have it all figured out—each faces many challenges. But many of those involved in reentry programs have come to believe that reentry programs do good work and do produce positive outcomes. Reentry programs are helpful to the participants, are good for the community, and are a benefit to the judicial system.

I. The Study Design

In October 2009, the Judicial Conference Committee on Criminal Law requested that the FJC undertake “a study to assess the operational aspects, outcomes, and cost-effectiveness of federal reentry court programs.”16 According to Judge Carnes, then-chair of the Committee, “the disparate and informal ways in which [reentry programs] are being implemented are presenting a substantial challenge to the Committee on Criminal Law, as it tries to identify those practices that best effect a positive result for offenders.” The FJC responded positively to the Committee’s request. In an effort to allow an independent source to design the model program, the FJC requested that the Probation and Pretrial Services Office of the Administrative Office of the U.S. Courts (hereinafter, PPSO) create the model reentry program for the district courts that would be participating in the study. This model became the framework for how the reentry programs would operate.

The use of a model program was necessary because programs are designed so differently throughout the country. In fact, seats of court

within one judicial district often conduct their programs differently. For example, the Southern District of Ohio has three seats of court: Cincinnati, Columbus, and Dayton. Each seat of court conducts a very different reentry program. The Columbus program is focused primarily on participants with drug addiction problems while the Cincinnati and Dayton programs focus on those who have a high risk of recidivism. In Dayton, the judicial officer presides over his program in the courtroom. It is a formal court hearing. The reentry program in Cincinnati is informal. Differences like these exist in reentry programs all over the country.17

Once the PPSO designed the model program, the FJC sought volunteer courts to participate. Specifically, courts that were willing to begin a reentry program or to re-start a program if one was already in existence. The participating courts also had to agree to follow the model program as designed. The model program was ultimately implemented in eight volunteer courts, located within these judicial districts: Central District of California at Los Angeles; Middle District of Florida at Jacksonville, Orlando, and Tampa; the Southern District of New York; and the Eastern District of Wisconsin at Milwaukee.

To be eligible to participate in the study, an individual must not have had a conviction or pending violation for a violent crime or sex offense, must have had a score of at least 3 on the Risk Prediction Index (“RPI”), must have had more than 24 months remaining on his term of supervised release, must have had the mental capacity to participate effectively, and must have been geographically located in close proximately to the program’s site. Individuals were required to have at least 24 months remaining on their term of supervision. This was required because the program was designed to take a minimum of 12 months to complete and, thus, the participants would need to have at least 12 months remaining on their term of supervision at gradation to receive the benefit of having their term supervision reduced by 12 months.

To better understand the RPI criteria, it is helpful to have a general understanding of how the RPI is calculated and what it means. The RPI is a scale from 0-9 that predicts an offender’s risk of reoffending.18 The lower the number, the lower the rate of recidivism to be expected. The RPI includes several pieces of key information

Figure 1: Quick Facts, Federal Offenders in Prison – May 2019.3

that have been determined to be risk factors: “the age at the start of supervision, number of prior arrests, whether a weapon was used in the instant offense, employment status, history of drug and alcohol abuse, whether the person ever absconded from supervision, whether the person has a college degree, and whether the person was living with a spouse and/or children at the start of supervision.”19 As the FJC explained:

The RPI score represents a broad estimate of the proportion of offenders with that score who will recidivate. For example, in theory, without referring to any specific sample of offenders, we would estimate that about 40% (actually in the range of 35% to 44%) of all offenders who receive a score of 4 will recidivate. Similarly, we would estimate that about 80% (i.e., between 75% and 84%) of the offenders who receive a score of 8 will recidivate… Thus, the theoretical score-by-score estimates are helpful in getting a general idea of the recidivism rates that are likely to be associated with each score, but variations from a clear increasing pattern should be expected. In addition, remember that the RPI cannot predict with certainty whether an individual offender will recidivate or not. That is, it cannot pinpoint whether someone who receives a score of 4 will be among the 60% of offenders who succeed or the 40% who recidivate.20

In each of the study sites, there were two treatment groups and one control group. The sites randomly assigned all eligible offenders to one of the three groups. The use of random assignment was designed to remove the selection process from the probation officers with the hope that the participants in each group would be roughly similar in all characteristics so that any differences in outcomes could be attributed to the effect of the program.21 Participants assigned to Group A were entered into a reentry program led by a district or magistrate judge and included a U.S. probation officer, an assistant U.S. attorney, a federal public defender, and a service provider, such as a mental health or drug addiction specialist. Participants in Group B were assigned to another reentry program that was comprised of the same group of people minus the judge. Both Group A and Group B followed the same program model. The only planned difference was that a judge was not to be involved in Group B. Finally, Group C was the control group. Participants assigned to this group experienced business as usual: they received a standard order of supervised release. These individuals were to be supervised by a probation officer just as one would be under “normal” circumstances.22 Each group was limited in size to 25 participants. This limitation in size, unfortunately, proved not to be an issue, as only the Southern District of New York was able to get enough participants to reach that limit.23

The model itself was comprehensive and was created with an eye toward evidence-based best practices and principles as set forth by the National Association of Drug Court Professionals.24 Some key features included that the supervising probation officer for each participant is on the team and that all team members encourage the participants’ success and agree to use informal sanctions to address violations rather than seeking revocations through the court. The model also required weekly meetings with the participants in the first phase, then bi-weekly meetings and finally monthly meetings. Each participant was required to work with an approved community support person or attend support group meetings and obtain and

maintain full-time employment or be enrolled in school. If a participant demonstrated an attitude supportive of crime, cognitive-behavioral programming would be required. Likewise, if substance abuse was an issue, treatment could be required. The model program consisted of four phases: (1) early recovery (minimum of 4 weeks); (2) primary treatment (12-24 weeks); (3) continued care and supervision (16-20 weeks); and (4) commencement phase (16-20 weeks).25

II. An Examination of the Study Implementation.

In May 2016, the FJC released the results of their multi-year study in the publication “Evaluation of a Federal Reentry Program Model” by David Rauma. The Evaluation was the final report of the FJC’s study.26 Beginning in August and September of 2011, most participating programs began randomly assigning participants to one of the three groups and continued doing so for approximately eighteen months. The last program concluded with the final participant graduating in October 2014.27

The study experienced a few key implementation challenges, largely because many subjects assigned to Groups A or B refused to participate in a reentry program. As a result, in addition to the three groups, a fourth group emerged, those who refused to participate in Groups A or B. Because consent was required for the treatment groups, all individuals assigned to Groups A and B were shown a short video outlining the reentry program and then asked to consent to the program terms. Almost 60% of those randomly assigned to Groups A and B did withhold consent and refused to participate. This group came to be called the “refusals.” Since Group C was comprised of those who were receiving standard supervision, consent was not necessary.

By the end of the study, there were a total of 95 participants in Group A, 86 in Group B, and 147 in Group C, which averages per site to approximately 16, 14, and 30 participants, respectively, per group. As demonstrated by these numbers, Group C ended up being much larger than Groups A and B. This occurred because, as participants refused to participate in Groups A and B, sites continued to randomly assign participants to the program to increase the number of participants in those groups. This naturally led to more participants being assigned to Group C due to the randomization.

Only New York reached the maximum number of 25 participants per group. However, Group A in New York was limited to 17 participants due to the presiding judge limiting the maximum number of participants in that group.

As you can see in Figure 2, Davenport and Des Moines had extremely low numbers of eligible participants. In fact, in Des Moines, every individual assigned to Groups A and B refused to participate. One would think that the numbers for the program in Los Angeles would resemble the numbers in New York. However, the Los Angeles program did not stay true to the model and only included participants who had a substance abuse problem and who were on the verge of having their supervision revoked. This became more akin to a “last chance” program. Thus, of the eight programs that originally were approved to participate, the Evaluation focused on five of the programs, completely excluding Davenport and Des Moines and partially excluding Los Angeles.

In what appears to be the response to the large number of participants who refused to participate and to equalize the size of the treatment groups, several programs reassigned participants to different groups from those to which they were originally assigned. This

occurred most often in the Middle District of Florida, which made up three of the programs evaluated. The reassigning of participants to different groups undermined the positive effects of using randomized assignments in the first instance. Table 1 shows the extent of the reassignments in the Middle District of Florida.

In total, 66% of those randomly assigned participants in Jacksonville refused to participate. Unfortunately, that number increased to 69% in Tampa. This led to a high number of reassignment of participants to different groups. The Evaluation asserts that there was no evidence of bias in the reassignments, and there is no reason to doubt that is true. However, what is unclear is the effect that the

reassignments had on the ultimate conclusions of the Evaluation. Tampa had the largest percentage of refusals, but, as you will see in a subsequent section, Tampa also had one of the highest successful completion rates, second only to Orlando.

To address the reassignments and attempt to maintain the randomization, the Evaluation did present data both as to the “original group assignments” and as to the “final group assignments.” The “original group assignments” data maintains the randomization but since many of the participants did not receive the treatment as originally assigned it makes it challenging for this data to be of any significant use.

Table 1: Middle District of Florida Reassignments29

Figure 2: Status of Randomly Assigned Cases, by Court

III. The Study Results Program Outcomes

The Evaluation broke down the treatment program outcomes into four categories:

Graduated; Terminated from Program; Left Program, Satisfactory Progress; and Left Program, Unsatisfactory Progress. Graduated means that the participant met the program requirements and was able to graduate from the program, thus receiving a 12-month reduction in his supervised release term. Terminated from the program is for those participants who violated one or more terms of the program. The two “Left Program” categories are for those who left the program voluntarily and the assessment of their progress was determined by the reentry team.30 The outcomes are set forth below in Table 2. Based upon the outcomes, Group A had a success rate of 56.9% and Group B had a 52% success rate.

Table 3: Revocation Rate at 24 Month Follow-Up34

Recidivism

Recidivism is typically measured by criminal acts that result in rearrest, reconviction, or return to prison, with or without a new sentence, during a three-year period following one’s release from prison.35 When the Evaluation looked at the recidivism rate for the participants it saw a similar result to that of revocations. To remove some of the discretionary factors that could affect the revocation numbers, the Evaluation looked at the rates of felony and misdemeanor arrests for participants in each group and compared them to those who refused to participate. The conclusion from the Evaluation is that there were no statistically significant differences in the arrest rates between any of the groups.36 The results are set forth in Table 4. These results, however, show that a higher percentage of Group A participants were rearrested than any of the other groups.

IV. A Discussion and Criticism of the Evaluation

Revocations

When the Evaluation talks about revocations, it is referring to when an individual has had his supervised release revoked for violating one or more of the conditions of his supervision. When this happens, the individual is often ordered to return to prison. To determine the number of revocations that occurred in the study, the Evaluation looked to the number of revocations of supervised release from all those randomly assigned to participate in the study, including those who ultimately refused to participate. The Evaluation found that the revocation rate between those in Groups A, B, and C compared to the revocation rate of those who refused to participate was comparable 24 months after release from prison.31 The Evaluation concluded that there was no significant difference between revocation rates after 24 months on supervision between those on standard supervision (both Group C and the Refusals) and those participating in reentry programs.32 Stated another way, “the overall conclusion is that assignment to one of the reentry programs did not decrease a participant’s probability of failure in any given time period.”33 The results are set forth in Table 3.

The FJC undertook an enormous project in response to the Criminal Law Committee’s request. Not only were the final results published in the article at the heart of this discussion, but the FJC previously published separate reports on six of the participating courts and the costs of the programs for those same six courts. Those earlier reports give much more detail and background for each program.

The FJC’s use of a model program and its attempt to run a true experiment is commendable, even though it ultimately is flawed. The conclusion that the Evaluation draws is that the reentry programs that followed this particular model have no statistically significant difference in the rates of revocations and recidivism compared to those individuals on standard supervised release. And thus, because there is no statistically significant difference, the programs are not cost-effective.37 However, there are certain aspects of the study and the model which deserve further development.

Random Assignment is not beneficial.

By using the randomized assignment of participants to each of the three groups the study should have been able to stay true to its desire for a true experiment. However, there are two problems with using random assignments in the fashion used in this study.

First, by its nature, randomization removes the screening process from a probation officer. I wonder what the result would have been

Table 2: Program Outcome, Final Group Assignments

Table 4: Arrest rate at 30 Month Follow-Up Misdemeanor

if the study had been able to select participants the same way that reentry programs around the country typically select them. I am not aware of any programs that use random selection. In my experience, participants are selected from a pool of individuals who meet certain criteria, much as in the study, but who are also screened by a probation officer and, importantly, who volunteer to participate. In doing it this way, not only do participants seek out the opportunity to be in a reentry program, but the probation officer can determine whether or not the program would be a good fit for the participant and whether the participant would benefit from the program.

Some individuals will successfully reenter society with little or no help needed from their probation officers. Others may be doomed to repeat past behaviors even with all the help and assistance that can be provided. Yet others struggle, and with the support of their probation officers and/or reentry programs, they can find success. It is this last subset of people who should make up the participants in reentry programs. A desire to make meaningful progress must be present for an individual to be successful in a reentry program, but using randomization likely led to the inclusion of individuals who may not have been as eager or willing to make meaningful progress. Randomization treats all participants equally regardless of their attitude or desire to be law-abiding. For better or worse, the use of random assignment removes the human element from the equation. Admittedly, any selection process is subjective and makes comparing and contrasting programs more challenging. But since the selection process plays such a large part in the ultimate overall success of reentry programs, the use of random assignments in the model programs had a negative effect on the results of the study.

Second, a major unforeseen problem with the use of randomized assignments was that almost 60% of those assigned to a reentry program, i.e., Group A or Group B, refused to participate. 38 This then reduced the total number of individuals participating in the study while increasing the size of Group C. As seen in the data above in Table 1, the Middle District of Florida reassigned a large number of its participants, and in Des Moines, seven out of seven individuals refused to participate.39

The refusal rate was high for reasons that were not determined, however, such a refusal rate in “the real world” is not an issue because the individuals who participate in reentry programs do so on a voluntary basis. A better approach would have been to seek volunteers to participate in the reentry programs and then randomized those who were assigned to the three groups. This would have

still allowed for a comparison of Group A to Group B, as well as those in Group C. This also would lead to a more similar comparison of those individuals in reentry programs and those on supervision in Group C. This is because those in Group C would have volunteered to participate and would have a similar mindset at the beginning as those assigned to Groups A and B.

RPI numbers were not evenly distributed.

Another problem with the selection process utilized by the model is that it did not account for varying RPI scores other than that all those eligible had an RPI above 2. By not giving further consideration to the RPI of the participants, the programs ended up with an average RPI per group that varied dramatically. Despite this variation, the Evaluation found that it could still make comparisons. For example, in Orlando, 81.8% of participants in Group B had a high RPI (a score of 6-9), compared to Group C which had only 53.8% of participants in that high RPI range. See Table 5 for other comparisons. Also, Table 6 sets forth what those numbers looked like as originally assigned compared to the numbers as they were implemented after the Middle District of Florida reassigned several participants. The most drastic change was in Group A in Tampa, where it went from 90% of its participants having a high RPI at the time of initial assignment to 76.5% after reassignment. The reverse occurred in Orlando where Group A went from 50% with a high RPI up to 66.7% after the reassignment.

There are benefits to having a program made up of participants with both medium and high RPIs as well as drawbacks, but when some groups have dramatically higher numbers of participants with high RPIs compared to other groups in a study, it leads one to doubt whether you can properly compare the outcomes of those groups.

Breaking Down the Conclusions Program Outcomes

As indicated in Table 2, the average “Program Outcomes” showed that Group A had a 56.9% graduation rate compared to 52% for Group B. Thus, Group A was arguably more successful than Group B, based upon those percentages. However, when you look at the actual number of graduates, due to the small sample size of the study, there was no meaningful difference between the program outcomes of Group A and Group B. Group A had 41 total graduates compared to 40 for Group B.

The Evaluation concludes that reentry programs were successful for half the participants. However, the raw data set forth in Table

Table 5: High RPI per Final Group

Table 6: High RPI per Originally Assigned Group

7 shows a different result. In Tampa, for example, 11 participants graduated from Group A, but only four graduated from Group B. In contrast, New York had only nine participants graduate from Group A, compared to 15 participants who graduated from Group B.40 The Evaluation does not explain why Group A was more successful in Tampa or why Group B was more successful in New York. The results are mixed, to say the least. Group A in Orlando had an 88.9% success rate compared with a success rate of only 40% for Group B in Tampa. Based on the small numbers of participants in the study, the results just do not tell us enough to make meaningful conclusions.

Recidivism and Revocations

The Evaluation failed to find evidence that the model program had an effect on the rates of revocations or recidivism. However, there are so many social issues that go into those rates that comparing them across different courts and programs can be challenging. According to Jeffrey Butts and Vincent Schiraldi, authors of Recidivism Reconsidered: Preserving the Community Justice Mission of Community Corrections:

Recidivism is not a robust measure of effectiveness for community corrections agencies. When used as the sole measure of effectiveness, recidivism misleads policymakers and the public, encourages inappropriate comparisons of dissimilar populations, and focuses policy on negative rather than positive outcomes…. Recidivism is at least in part a gauge of police activity and enforcement emphasis and, because of differential policing practices in minority communities, using recidivism as a key measurement may disadvantage communities of color. Relying on recidivism defines the mission of community corrections in law enforcement terms, relieving agencies of

their responsibility for other outcomes such as employment, education, and housing.”42

A similar criticism can be applied to the use of revocations. Revocations are left to the discretion of the probation officer and the judicial officer, each of whom may recommend or order revocation at a higher rate than others. The same societal concerns mentioned by Butts and Schiraldi can affect the rate of revocations. Instead of focusing on revocations and recidivism, we should focus more on positive outcomes such as social development, criminal desistance, employment, sobriety, literacy, mental health, community involvement, and family relationships, to name a few.

Cost-Effectiveness

A comprehensive cost analysis was performed for each program participating in the study. The total costs ranged from a high of $163,774 in the Southern District of New York to a low of $28,851 in Tampa. In a short and oversimplified explanation, the Evaluation broke down team members’ salaries into hourly rates and then multiplied the rate by the number of hours reported. The model intended for service providers’ costs to be included if such costs were paid by the government. However, despite the model requiring the use of a service provider in the programs, New York is the only program of the final five which did so. The service provider in New York was paid by the employing agency so there was no cost to the government.43

The model program required an extensive time commitment. During phase one of the model, which typically lasted about four weeks, the programs met weekly, then moved to bi-weekly for the next three to six months, and finally meeting only monthly the final four to five months. This equates to approximately 21 program meetings per year. Thus, the cost of implementing such time-consuming

Table 7: Program Outcomes for Final Group Assignments, Overall and by Court

Table 8: Estimated Total Program Costs

programs will undoubtedly be higher than those programs who meet less frequently.

It should be no surprise that the cost of Group A is significantly higher than Group B due to the cost of the judicial officer(s) and courtroom deputy.45 Even judicially run programs’ costs can vary depending on the court resources utilized. Programs that have formal courtroom hearings often require not only the judge, but also a courtroom deputy, court reporter, and court security officer(s),46 in addition to the reentry team who would otherwise be present. The inclusion of so many additional court personnel does increase the cost of the program. Add to that the more frequent meetings required by the model, and the cost increases greatly. Contrast those costs to a program that meets informally: An informal meeting does not require the attendance of a courtroom deputy, court reporter, or court security officer.

In addition, other factors led to cost disparities outside the inclusion of a judicial officer and court staff. The cost disparities in Group A compared to Group B in the Eastern District of Wisconsin was much larger than just the extra personnel utilized in Group A. The addition of the magistrate judge only accounts for $35,974 of the $79,379 difference between the two groups. The cost for the probation officer alone was approximately $20,000 more for Group A then Group B. This was mainly due to the probation officer in Group A spending a significant amount of time updating and reviewing progress reports as well as attending team conferences (382.8 hours versus 46.7 hours).47 Group B did not have team conferences.

When calculating the cost of reentry programs to include the “hourly rate” for the judge, as the Evaluation did, will certainly increase the cost. However, one can argue that the judge’s time should not be included as an additional cost but should instead be additional job responsibility for the judge. Judges often participate in court governance, committees, and perform other duties that are not specially part of their duties as a judge. Judges who participate in reentry programs still perform all the essential functions of their job. Of course, the amount of time devoted to the program has to be reasonable and not too demanding.

Another way to look at the cost effectiveness of these types of programs is to look at the cost of incarceration. For fiscal year 2018, the cost to imprison one offender through the Bureau of Prisons was $37,449 per year—more than the total cost of Group B in each of the three cities in the Middle District of Florida.48 To be clear, the cost to run Group B in Tampa is less than the cost to incarcerate one person for one year. Even if the reentry program in Tampa can only help one person be successful and thereby not return to prison, the program will have saved money. Not to mention, the cost to prosecute is not included in the cost to imprison figure listed above.

V. Other Measurements of Success.

The Evaluation stated that “revocation and recidivism are not the only measures of program effectiveness—employment, sobriety, and quality of life are other possible indicators of a program’s effectiveness at reintegrating former prisoners into society.” 49 However, “because revocation and recidivism [could] be most easily measured, compared across supervision populations within and between districts, and have financial consequences for the operation of the federal criminal justice system,” the FJC limited its study to only revocations and recidivism.50 By doing this, the FJC ignored key elements that lead to a successful program.

By studying only revocations and recidivism rates in the Evaluation, the questions asked were simple: (1) was an individual revoked or not, and (2) was he arrested or not. This is a very binary approach. What if one looked at more than just the answers to those two questions and instead looked at various other measurements? A better picture of the effect of reentry programs would be seen. What if someone who has a long felony record is arrested for a minor misdemeanor, e.g., possession of less than 100 grams of marijuana, which then forms the basis to revoke his supervision? This is a new law violation that could lead to revocation and thus, is a negative outcome. But what if it was looked at another way? What if more focus was placed on this individual being charged with “only” a minor misdemeanor as opposed to another felony? This is a more positive outcome. What if an individual had a history of being arrested quickly after being released from prison, and then he was able to not reoffend for over three years? This is the type of outcome, more positive than negative, that should be considered.

Employment is a key factor in determining whether or not someone who has been released from prison will be successful on supervision.51 Looking at employment rates of the participants in a reentry program versus those on standard supervision is another factor that should be considered in determining the success of a reentry program. Literacy is also a significant indicator of employment success. Nationally, three out of five incarcerated individuals are illiterate.52 Thus, another way to measure success could be to measure the literacy rates of participants in reentry programs compared to those individuals on standard supervised release.

Having a support network is a tremendous asset for those who are reentering society. Family reunification and active parental involvement is another factor that should be evaluated when determining the success of a reentry program. Fathers who are released from prison often must mend broken relationships with their children while many also face a large child support debt. The fathers who can mend their relationships with their children are often able to use those relationships as motivation to be successful.53 Measuring improvement in family relationships would also be beneficial to understanding overall success. Community involvement is also another indicator of success. It is a pro-social activity that provides the participants with opportunities to fill their time with positive activities as well as gain praise from others.

Measuring these social factors can prove to be difficult. However, much of this information is collected when a probation officer determines an offender’s RPI. In fact, for the programs that participated in this study, each prepared a table that compared the characteristics of participants by group. It included the following characteristics for participants in each group: gender; ethnicity; race; instant offense; substance abuse treatment as a condition; mental health treatment as a condition; education; RPI items including average age, average number of prior arrests, weapon involved, employment, history of substance abuse, college degree, living with spouse and/or children, and whether absconded from previous term of supervision; and key assessment items including highly motivated to change and strong social support.54

VI. A Different Model is Proposed.

Minor tweaks to the model are all that is necessary to see the desired results and to make the programs fiscally responsible. The reentry program in the Southern District of Ohio at Cincinnati is a program that has seen some successes. It is an informal program that incorpo-

rates both a professional mentor as well as utilizes peer mentors—individuals who have previously completed the program.55 The reentry team in Cincinnati is similar in composition to Group A of the model program. The team consists of a magistrate judge, a law clerk who takes notes, the probation officer who prepares monthly updates, an assistant U.S. attorney, an assistant federal public defender, the professional mentor, a pastor, and the peer mentors.

During the first three weeks of each month, the participants meet weekly with the professional mentor who engages them in candid discussions while encouraging them to support one another. This group, affectionately known as PIT (the Positive Influence Team), provides guidance and utilizes peer support to influence positive behaviors and thinking. The opportunity for the participants to meet in a safe setting with someone who they respect and with others who have gone through, and are going through, the same struggles has proved to be so beneficial to the success of the program.

Reentry court occurs on the fourth week of the month. The team meets for 30 minutes prior to the session to discuss how each participant has been doing since the previous meeting and to discuss any issues that have arisen during that time. Then, everyone comes together, for approximately two hours, where the progress of the participants is assessed and any problems or issues that each may be experiencing are discussed. It is in this session where goals are set, and participants earn credits. For each month that a participant meets his goals, attends all PIT meetings, and otherwise is successful, the participant earns up to 30 days, or 30 credits, towards a reduction in the term of his supervision. Once a total of 365 days is earned, the participant is eligible to graduate from the program and is officially awarded a one-year reduction in his term of supervised release. Ideally, it takes each participant one year to complete the program. However, setbacks often occur where not all credits are awarded each month, so it often takes 14–16 months to successfully complete the program.

In this model, the professional mentor and peer mentors spend the most time meeting with the participants and directly working with each one to cultivate a relationship of trust and support. The time commitment of all court related team members is limited to approximately three hours per month. The probation officer, who is the reentry specialist for the office, supervises the participants as if they were not participating in reentry court. For Cincinnati, this model has provided a good balance between meeting the needs of the participants and minimizing court resources by utilizing mentors.56

VII. Conclusion

The FJC undertook a tremendous task. The goal of implementing a model reentry program was lofty and faced unexpected challenges. However, the Evaluation was thorough in the data collection, as well as pointing out weaknesses in the results and addressing likely criticisms. Unfortunately, the sample was too small and there are too many variables to come away with a solid conclusion. The take-away should be that it is difficult to study reentry programs, but that researchers need to keep trying. As the data in this study shows, results vary widely. In some courts, Group A did a much better job than Group B and vice versa. Moreover, the cost of the programs also varied wildly.

Successful reentry programs are about the people—the people who lead them and the people who participate in them. Each reentry program can follow the same model or set of guidelines, but the pro-

grams will be different because the people who participate in them are different. The success of a program is about the connections that are made—the connection between the participant and the team, as well as with the other participants. To have a successful reentry program, everyone must not only do their assigned part but also must have the ability to connect, foster, and mentor the participants. The participants need to be engaged and hold each other accountable for their actions.

Reentry programs do good work and can make a difference in the successful reintegration into society. Even if reentry programs are successful less than 50% of the time, to those that have success, it is well worth the time and court resources. 

Hon. Stephanie K. Bowman is a U.S. Magistrate Judge in the Southern District of Ohio, Western Division at Cincinnati. She is the judicial officer who oversees the reentry program in Cincinnati. This article is a shortened version of a thesis paper written by Judge Bowman while participating in the Bloch Institute LLM Judicial Studies program at Duke University School of Law. She would like to thank Professors Mitu Gulati, Jack Knight, and Ben Grunwald for their advice, guidance, and support through this writing process. She also owes a great amount of gratitude to Erin Remotigue, Magistrate Judge Michael Merz, and Magistrate Judge Michael Wilner for editing this paper.

Endnotes

1Wendy Sawyer and Peter Wagner, Mass Incarceration: The Whole Pie 2019, Prison Policy Initiative, https://www. prisonpolicy.org/reports/pie2019.html.

2The total number of federal inmates as of Feb. 16, 2020 was 174,751 (Population Statistics, Federal Bureau of Prisons, https://www. bop.gov/about/statistics/population_statistics.jsp), and the average daily detention population for the U.S. Marshal Service based upon Fiscal 2018 data is 55,872 (U.S. Marshalls Service, Prisoner Operations Fact Sheet 2019, Apr. 3, 2019).

3U.S. Sentencing Commission, Quick Facts Federal Offenders in Prison May 2019, https://www.ussc.gov/sites/default/files/pdf/ research-and-publications/quick-facts/BOP_May2019.pdf.

4Post Conviction Supervision, Judicial Business 2018, https://www. uscourts.gov/statistics-reports/post-conviction-supervision-judicialbusiness-2018.

5Those individuals typically sentenced to a lifetime of supervision are not often not eligible for reentry programs.

6Supra note 3.

7See AO Form 234B (Rev. 09/11) Judgment in a Criminal Case, https://www.uscourts.gov/forms/criminal-judgment-forms/ judgment-criminal-case.

8Chidi Umez Et Al., Nat'l Reentry Res.Ctr., Mentoring as a Component of Reentry: Practical Considerations from the Field (2017) 6 (June 2017).

9Matthew G. Rowland. Assessing the Case for Formal Recognition and Expansion of Federal Problem-Solving Courts, Fed. Probation, Dec. 2016, at 6–7.

10Rodney Villazor, Reentry Courts: An Examination of the “Provocative Proposal” in Practice, 28 Fed. Sentencing Rep., at 253–258.

11David Rauma, Fed. Judicial Center , “Evaluation of a Federal Reentry Program Model” (2016).

12Id. at 37.

14Id. at 49.

15See Matthew Denis, Reentry Court Aspires to Give Released Prisoners a Chance to Succeed, Register-Guard, (2019). (“Reentry Court statistics show that the revocation rate (being sent back to prison) for participants is 26 percent less than all other supervised release programs in Oregon.”)

16Letter from Judge Julie E. Carnes, Chair of the Criminal Law Committee, Federal Judicial Center, to Judge Barbara J. Rothstein, Director, Federal Judicial Center, Oct. 14, 2009.

17For a more detailed look at the reentry programs in the Southern District of Ohio as well as other districts, see Hon. Michael J. Newman and Matthew C. Moschella, The Benefits and Operations of Federal Reeentry Courts, Fed. Law., Dec. 2017.

18Supra note 11, at 7.

19Admin. Off. of the U.S. Courts Off. of Probat. and Pretrial Servs., An Overview of the Federal Post Conviction Risk Assessment 6 (2011).

20Supra note 11, at FN21.

21Id. note 11, at 4.

22Id. at 5.

23Id. at 12, tbl. 4.

24Id. at 7.

25Id. 7–8.

26Throughout the duration of study, the FJC published other reports which provided additional information on the study. See Fed. Judicial Center , Process Evaluations of Six Programs in Four Districts (2015) and Costs of Study Programs at Six Sites (2015).

27Supra note 11, at 11.

28Id. at 14

29Id. at 15.

30Id. at 20.

31Id. at 27–31.

32Id. at 2.

33Id. at 36.

34Id. at 30.

35Recidivism, Nat'l Inst. of Just., http://nij.ojp.gov/topics/ corrections/recidivism#extended-nav-section-4 accessed Mar. 22, 2020.

36Supra note 11, at 39.

37Id. at 2.

38Id. at 12.

39Id.

40Id. at 21–22.

41Id. at 21.

42Jeffrey A. Butts & Vincent Schiraldi, Recidivism Reconsidered: Preserving the Community Justice Mission of Community Corrections, Nat'l Inst. of Just. (Mar. 2018).

43Supra note 26, at 6.

44Supra note 11, at 49.

45The programs in New York, Orlando and Tampa utilized both a Magistrate Judge and District Judge to varying degrees.

46The cost of the court security officer was not incorporated into the cost estimate as it was determined that that officer would be otherwise performing security in the courthouse. Supra note 26, at 5.

47Id. at 15–16.

48Annual Determination of Average Cost of Incarceration Fee (COIF): A Notice by the Prisons Bureau on 11/19/2019.

49Supra note 11, at 2.

50Id. at 3.

51Lucius Couloute & Daniel Kopf, Out of Prison & Out of Work: Unemployment among formerly incarcerated people, Prison Pol'y Initiative (July 2018) https://www.prisonpolicy.org/reports/

outofwork.html.

52Illiteracy by the Numbers, Literacy Project, https://www. literacyprojectfoundation.org , accessed Feb. 23, 2020.

53Pajarita Charles Et. Al., Parenting and Incarceration: Perspectives on Father-Child Involvement during Reeentry from Prison,” 93 Social Service Review 2 (June 2019), at 218–261.

54Supra note 26, at chapter 2, 3 and 5, tbl. 1.

55From 2017-2022, twenty-seven individuals have participated in the SDOH program with sixteen having successfully completed the program.

56The professional mentor is compensated for the PIT meetings through the Probation Department’s Second Chance Funds. Other individuals who are Supervised Release also attend these meetings as ordered by their supervising officer. The professional mentor, pastor and the peer mentors volunteer their time to attend reentry court. For more information on PIT please go to www. positiveinfluenceteam.org

evacuations, safe houses, visas, and acting as a lifeline of communication on security and general needs. Their work has been a godsend to the judges, especially those left in Kabul. Judge Vanessa Ruiz of the D.C. Court of Appeals, Judge Patti Whalen—a retired trial judge from Vermont who personally trained the Afghan judges both in the United States and in Afghanistan, Justice Susan Glazebrook—a Supreme Court Justice from New Zealand and the president of the IAWJ, Judge Robyn Tupman—Judge of the District Court of New South Wales in Australia, Judge Mona Lynch—Supreme Court Justice of Nova Scotia in Canada, Judge Gloria Potayos—Magistrate Judge in Spain, and Judge Anisa Dhanji—Commonwealth Scholarship Commissioner in the United Kingdom, all know the details of the Afghan women judges’ saga with granular detail. They have worked every day since July 2021 to try to help get the Afghan women judges to safety. They continue to work on the Afghan women judges’ behalf, every day. Their dedication to this cause is unparalleled, and they are personally aware of all the details of their diaspora. 

Judge Lisa Walsh has been a trial and appellate judge in Miami, Florida for 15 years. She is also an adjunct professor of appellate advocacy at St. Thomas Law School. She serves as International Director for the National Association of Women Judges (NAWJ) and Director for the International Association of Women Judges (IAWJ). She was the 2015-2016 President of NAWJ. In 2016, she passed a national resolution calling on all judges to “make appointments that are

consistent with the diversity of our society and the justice system.” She leads the US efforts to support refugees who were women judges in Afghanistan.

Endnotes

1TF Hawk, a rescue organization that dedicated itself to the rescue of at-risk women from Afghanistan, coined this term. According to its principal, because most of the Special Immigrant Visas were granted to men who contracted to work for the U.S. government or its contractors, for the first time in human history, women and children were rescued last.

Women and Children Last: continued from page 26

BLAZING EARLY HISTORY OF THE U.S. PATENT OFFICE: FEATURING

DR. THORNTON’S FIERY

SPEECH TO THE REDCOATS, AND THE GREAT CONFLAGRATIONS OF THE 1800s

IRA COHEN, B.A., J.D., LL.M.

This is Part Two of The Blazing History of the U.S. Patent Office. To read the introduction, see Part One in the print or digital edition of the Spring 2023 issue of The Federal Lawyer

The First Great Patent Office Fire (of 1814): We Didn’t Start the Fire; 1814: The Redcoats Burn Washington, D.C.

“We didn’t start the fire; It was always burning since the world’s been turning. We didn’t start the fire; No, we didn’t light it, but we tried to fight it.”1

The War of 1812 (1812–1815) was a 19th-century military conflict fought between the United States and Great Britain over British violations of U.S. maritime rights. During the war, which was fomented by British restrictions on U.S. trade and America’s desire to expand its territory, the Americans took on the then-greatest naval power in the world, Great Britain. After three years, the hostilities concluded with the exchange of ratifications of the Treaty of Ghent.

The earliest instance of a fire that would go on to plague the history of the Patent Office materialized in 1814. In the summer of that year, the First Great Fire threatened the Patent Office. Due to the facts and circumstances explained below, it turned out to be the fire that never was, and the Patent Office only narrowly escaped being fed to the flames.

During the relatively short-lived conflict, following the battle of Bladensburg on Aug. 24, 1814, our nation’s governmental heart and soul, Washington, was invaded and occupied by a foreign nation, for the first, and only, time since the American Revolution. To be sure, it was a hellish day or two for the capitol district. Virtually all the major government buildings in Washington, D.C. were either blown up or burned down to the ground. Not even the Capitol2 or the White House avoided a fiery fate. Indeed, only one governmental edifice was spared, to wit, the U.S. Patent Office.3

By all accounts, the federal government, the American people, and posterity have just one person to thank for the structure’s salvation, good old Dr. Thornton. As the Redcoat troops swarmed into Washington on Aug. 24, 1814, they began to burn all of the public buildings.4 As Carl Jung reportedly observed: “The difference between a good life and a bad life is how well you walk through the fire.” Dr. Thornton both walked the walk and talked the talk. There are several versions and accounts of Thornton’s heroics on that fateful summer day, some more colorful and dramatic than others. All appear to be in accord, however, that he had single-handedly saved the Patent Office.5

As the soldiers were preparing to put the structure to the torch, Dr. Thornton made a passionate plea to several different British officers. His “Hail Mary” pitch not to burn the building, the “Blodgett’s Hotel” and, thus, to save the hundreds of inventors’ models and papers stored at the Patent Office, miraculously worked. Supposedly,

he told the attackers that destroying this evidence of human ingenuity would be equivalent to the infamous burning of the great library of ancient fame in Alexandria and, moreover, would tar the British for generations to come. In one account, Thornton precariously placed himself between the British canons and the building’s façade. Thankfully, Thornton did not end up as His Majesty’s royal cannon fodder; cooler heads prevailed, and after meetings with several British officers, Thornton’s moxie and eloquent intervention finally secured the Brits’ promise that the Patent Office would be spared. The British officers and gentlemen, thankfully, were good to their word.

More fortunately, the British invasion and occupation of Washington was an exceedingly short-lived event. As a matter of objective fact, it lasted only about 26 hours.6 After the Redcoats botched the demolition of an abandoned American fort, and somehow managed to blow up or maim about 75 of their soldiers, Mother Nature finished the British off. Seemingly out of nowhere, the rain and the wind ratcheted up to major storm strength; the aptly named “Hurricane of Providence” sent the English troops, under Major General Robert Ross, packing and into retreat, as they high-padded it back to their naval vessels and promptly sailed away from Washington, D.C.7

It was, therefore, a lucky circumstance for the federal government that Blodgett’s Hotel, the home of the Patent Office, remained standing. That is because the U.S. Congress now was in dire need of a temporary home and, so, thereafter met in the hotel for about a year, while the Capitol building was being reconstructed.

Back in 1810, when Congress had authorized the purchase of the unfinished Blodgett’s Hotel from its builder to house the Patent Office and the Post Office, it installed a new, slate roof, not to mention a fire station and fire engine too. Despite those efforts, and well-meaning intentions, much later events would prove too hot to handle.

Time, as it always does, marched on. In 1821, Thomas Jennings received U.S. Patent No. 3,306X for “Dry Scouring,” a precursor to dry cleaning. Notably, Jennings was the first known African American inventor to receive a U.S. patent (although no copy of this particular patent is known to exist).

In the meantime, during 1824, American lawyer and stateman, Daniel Webster (1782–1852), in a stirring speech to Congress, declared that invention is the fruit of a man’s brain, that industries grow in proportion to invention, and that therefore the government must aid progress by fostering the inventive genius of its citizens. Webster, then a U.S. Congressman, thus echoed views similar to those of the patent system held by founding fathers Washington, Jefferson, Hamilton, Madison, and Franklin. “The right of an inventor to his invention is no monopoly—in any other sense than a man’s house is a monopoly,” observed Webster.

Patents were, of course, not solely restricted to men. On Feb. 3, 1831, Emma Steinhauer was granted patent No. 6,362X, for her newly invented cooking stove. This patent is thought to be the first U.S. patent ever granted to a woman inventor for which a known copy still exists.8 (Note: there is no known connection between her cylindrical, sheet iron stove and the Second Great Patent Office Fire of 1836.)

In 1834, a Virginian inventor named Cyrus McCormick secured a patent for his agricultural grain reaper.9 The Patent Office had come a long way between 1790 and 1836. From a trickling trio of patents during that first year, by 1836, nearly 10,000 patents had been granted.

1836 and The Patent Act of 1836

With the calendar turning the pages to bid welcome to the year

1836, an eventful 12 months ensued. The President at that time was Andrew Jackson (1767–1845), who held office from 1829–1837.

The Battle of the Alamo raged down in Texas from February 23–March 6. What is more, on March 2, Texas declared its independence from Mexico. Later, on April 20, 1836, the U.S. Congress passed an act creating the Wisconsin Territory. Still later, on June 15, Arkansas was admitted as the 25th U.S. state.

On the patent front, on Feb. 25, 1836, legendary pioneering gunsmith Samuel Colt received a U.S. patent for his eponymous revolver, the first practical adaptation of the revolving flintlock pistol, commonly known and referred to as the Six Shooter.10 Then, on Independence Day of that year, the Patent Act of 1836 was enacted, which completely rewrote American patent law. Senator John Ruggles (Maine, 1789–1874) was the law’s creator, aided by Mr. Charles Keller, the latter of whom, on July 5th, became the first person to hold the first official title of Patent Examiner.

Less than a month earlier, on June 29, 1836, Keller, the Patent Office machinist, had been granted his very own patent11 for making staves.12 (His patent is available for viewing in USPTO’s electronic system.) While working as a Patent Examiner, Keller also studied law at night and, so, by May of 1845, he bid adieu to the Patent Office in order to enter the private practice of law, thus beginning a long-standing tradition of patent examiners.

In the confines of that same year, on July 4, 1836, the Patent Office became a separate organization within the Department of State (see 5 Stat. 117), and Henry Leavitt Ellsworth (1791–1858) became the First Commissioner of Patents. Ellsworth, who haled from Windsor, Connecticut, was the Yale-educated lawyer-son of Oliver Ellsworth, this country’s Third Chief Justice of the U.S. Supreme Court.13 As Commissioner of Patents, a position he held for a decade (1835–1845), he was the first federal official to collect agricultural information for the benefit of the farmers; later, Ellsworth would have bestowed upon him the moniker of the “Father of the Department of Agriculture.”

Commissioner Ellsworth, in his 1843 report to Congress (opining about the increasing workload at his office, mused: “The advancement of the arts, from year to year, taxes our credulity and seems to presage the arrival of that period when human improvement must end.”14

Finally, also on July 4, 1836, a law enacted on the same day as the important Patent Act, provided for the erection of a new (supposedly) fireproof building for the Patent Office. Miniature models of the inventions also became required when applying for a patent. Appeals were now allowed. A few days later, on July 11th, the Letters Patent numbers were reset, and U.S. Patent No. 1 was granted to Senator Ruggles, the law’s author, after the filing of the 9,957 prior, unnumbered patents.15 Senator Ruggles’ new and useful invention was a type of traction train wheel for locomotive trains designed to reduce the adverse effects of the weather on the train track.

An 1837 amendment required two copies of the patent to be submitted to the Patent Office; one was cautiously guarded at the U.S. Patent Office, while the second copy duly was returned to the Applicant (a practice which ended in 1870 when the Patent Office would begin to print copies of all patents submitted).

In any event, the federal government knew it needed to safeguard the voluminous piles of papers and the patent models. It ought to be borne firmly in mind that, up until July of 1836, about five months before the fire, all U.S. patents were not numbered; they were merely identified by the inventors’ (patentees’) names and the dates of issuance.

The Second Great Patent Office (of 1836)

What was sorely needed was a new, fire-resistant building to protect the patent archives. The files were placed in temporary storage. What happened next? Murphy’s Law took over; and it was not very long before a blazing inferno ensued!

At three in the morning on Dec. 15, 1836,16 virtually the entire patent office and library were lost to a raging fire. One solitary volume was spared incineration (and only because an employee had taken the book home without permission to do so). The old building was gutted, and all the approximately 10,000 patents, as well as several thousand related patent models, were irretrievably destroyed. The lost items included 168 folio volumes of old records, 26 large folios, 9,000 drawings, and 7,000 lost models.17

At one point, arson was suspected by official investigators, and the fingers were pointing at the U.S. Post Office which had been rumored to be a hotbed of corruption. Ultimately, however, the building’s blazing burial was ruled due to accidental causes. Apparently, the Patent Office employees had stored their firewood in the building’s basement, while their co-tenant U.S. Post Office workers had disposed of the smoldering ashes from their own fires right nearby. As they say, and it is not rocket science: Wood and burning ashes make for a very combustible combination.18

In that manner, Blodgett’s Hotel was burned to the ground. Wood was returned to its carbonized elements, and the piles of papers had been reduced to piles of ashes. What is ironic about the situation is that there was a nearby Fire Department Station. However, faulty equipment, lack of personnel, a 16-year-old leather fire hose, and the wintry freeze clogging up the water pumps, combined to thwart all efforts to battle the blaze; the efforts of the hastily raised bucket brigade were futile.19

The Aftermath of the 1836 Patent Office Fire.

Through the haze of the smoky morning air, it had become clear that three decades’ worth of records and models were gone; what the British had, in answer to Thornton’s valiant pleas, spared, now had been unceremoniously cremated. Still, a minor miracle did occur; the original Declaration of Independence, which previously had been on display in Blodgett’s Hotel, had been moved to the State Department just prior to the ides of December. There was some slight serendipity after all.

As alluded to above, prior to the Patent Act of July 4, 1836, patents had been issued by the name of the patentee and the date of the patent, rather than by any assigned numerical designation. The Patent Office had already issued nearly 10,000 patents by the time the great fire destroyed many of the original records in the winter of 1836.

As we have seen, the earliest American patents were issued by the Patent Office from 1790 to July 1836. By the latter date, an estimated 9,957 patents already had been issued. Regrettably, when the Patent Office burned down on Dec. 15th, it had neither copies nor any roster of any of the patent documents or grants. It was, in short, a total loss.

As a direct result of the fire of 1836, the Patent Office changed its record-keeping system, assigned numbers to the Letters Patent, and further required multiple copies of the patent applications and supporting documents. Today, we generally refer to the numerous patents which went up in smoke in the great fire of 1836 as the “X-Patents.” Most have been lost for all time. Nevertheless, scholars and historians do have a barebones record of the archival contents.

Thus, we have a fair idea about early American exceptionalism and inventiveness.

Congress wasted little time before it passed a law to aid and assist in the re-issuance of the missing patents. By resorting to private (i.e., inventors’) copies, the government eventually was able to recover about 2,800 patents; today, there are almost 2,000 of such patents available for online inspection.20 That still leaves about 7,000 patents that are missing-in-action.

Subsequently, by resorting to the use of the aforesaid inventors’ copies, the Patent Office was able to restore 2,845 patents. The restored records then were issued a number beginning with an “X” and, thereafter, referred to collectively as the “X-Patents.”21 In that manner, the first patent ever issued was designated patent “X1.” Those patents that could not be restored were later canceled. As to the older patents, one adds the prefix “X” for No. 1 (i.e., X1); add the suffix “X” for the remainder of the X-Patent cache (i.e., 2X, 3 X, etc.).

In certain special circumstances, if an early patent was recovered and re-issued, the Patent Office sometimes labeled it with a fractional number in a bid to preserve the numerical sequence (e.g., 2960 1.2X, issued June 2, 1818). In that vein, most, but not all, re-issued patents are X-patents.22

The search for more X-Patents remains an ongoing quest. One of the most recent discoveries relating to the universe of X-Patents took place at Dartmouth’s College Archives wherein 14 X-Patents were unearthed. Ten of those Letters Patent had been granted to the same American inventor, Samuel Morey, who had worked on internal combustion engines, and was a pioneer in steamships.23 Morey would go on to collect no less than 20 patents during his lifetime.

By way of summary, the first 10 U.S. X-Patents granted were as follows:

Pat X1; Inventor: Samuel Hopkins; Place: Pittsford, VT

Invention: the making of potash and pearl ash by new apparatus and process; Year of Grant: 1790.

Pat 2X; Inventor: Joseph Sampson; Place: Boston, MA; Invention: manufacture of candles;

Year of Grant: 1790.

Pat 3X; Inventor: Oliver Evans; Place: Philadelphia, PA; Invention: automated flour mill;

Year of Grant: 1790.

Pat 4X; Inventor: Frances Bailey; Place: Philadelphia, PA; Invention: punches for type;

Year of Grant: 1791.24

Pat 5X; Inventor: Aaron Putnam; Invention: improved distilling process;

Year of Grant: 1791.25

Pat 6X; Inventor: John Stone; Place: MA; Invention: pile driver for bridge building;

Year of Grant: 1791 (March 10).

Pats 7X–10X; Inventor: Samuel Milliken; Place: Philadelphia, PA

Inventions:

7X: machine for threshing grain and corn

8X: breaking of hemp

9X: cutting and polishing marble

10X: raising a nap on cloths

As for the later X-Patents, a few of the more notable ones are as follows:

72X: Eli Whitney, Cotton Gin,26 March 14, 1794, Whitney, a Yale graduate, revolutionized the cotton farming and tex-

tile industry. “Gin” was a shortened form of “engine.” This machine quickly and easily separated cotton fibers from their seeds.

4378X: Samuel Morey, Gas or Vapor Engine, April 1, 1826. This was the first internal combustion engine in the U.S. Even modern mechanics would recognize the two cylinders, as well as the arrangement of valves and cams.27

9430 X: Samuel Colt, a key patent in revolver history, Feb. 25, 1836. On Feb. 25, 1836, Samuel Colt, of Hartford, Conn. received a patent on a “Revolving Gun”, (patent No. 9,430X) This is the first of the famous “Six-Shooters,” which would play such an important role in westward expansion and the winning of the West.

9899X: C. Waterman, Brick Machine, July 2, 1836.

The robust revision of the patent laws in 1836 had reorganized the Patent Office and designated the person in charge of the office as the Commissioner of Patents. There are a few excellent works that have dealt with the internal workings of the office in that embryonic period.28 Other works deal with the enactment of relevant legislation and the rise of pertinent publications as well.29

Rebuilding the Patent Office; Fireless for Forty Years.

As a postlude to the fire of the previous year, in 1837, the Patent Office temporarily was moved to the Old City Hall (which, at that time, was the District Court House), otherwise known as the District of Columbia Courthouse. This historic building, which can still be seen today, and is located at Judiciary Square at 451 Indiana Avenue N.W., was declared a national landmark in 1960. Currently, it houses the District of Columbia Court of Appeals. The Patent Office’s “temporary” relocation to that grand old edifice lasted three decades.

After the 1836 fire, Congress also passed a patent restoration budget of $100,000 on March 3, 1837. (That was the year that saw the patent grant for the electric motor.)30 The funds and project were later discontinued, however, in 1849 (with $88,237.32 spent).

It also was the year of newer patent legislation, the Act of March 3rd. Under that act, money was appropriated to replace the lost patents, and applicants were required to submit two sets of patent drawings with their applications.

The new home for the Patent Office would not be ready until over 30 years later in 1867. Prior to the breaking of ground for the new Patent Office, in 1836, the situs had been an undeveloped hill on the edge of nascent capital. An icehouse and a modest cabin, populated by a squatter couple and their complement of chickens, and surrounded by several varieties of fruit trees, were the only impediments to patent progress and they were hastily dispatched.

A new, purportedly fire-proof trio of buildings sprang up to house the Patent Office, the Treasury Department, and the General Post Office. When legendary English writer, Charles Dickens, visited Washington, D.C. with his wife in January of 1842, Dickens, candidly, was unimpressed; he found a:

“City of Magnificent Intentions.… Spacious avenues, that begin in nothing, and lead nowhere; streets, mile-long, that only want houses, roads and inhabitants; public buildings that need but a public to be complete; and ornaments of great thoroughfares, which only lack great thoroughfares to ornament—.”31

The designer of the building-to-be was Architect Robert Mills (1781–1855), who also designed the Treasury and Post Office buildings. Resorting to Greek revival architecture, construction began in 1836 but took 31 years fully to complete. Mills sought and worked toward a fire-proof design, but he was dismissed in 1851.

The Patent Office moved into the building in the spring of 1840, the same year as Patent No. 1,647 was granted to Samuel F.B. Morse, of New York, for “Telegraph Signs.” Yet, the building’s last wing was not to be finished until 1867, although it was used for Abraham Lincoln’s Second Inaugural Ball in 1865. Nevertheless, it only lasted a dozen years until it, too, felt the fanning flames of fate, and was burned to a crisp in 1877. Notwithstanding the foregoing, the Patent Office would remain in its new digs until 1932.

Wondrously, the historic old Patent Office building still may be seen today in Washington, D.C. at F and G Streets and 7th–9th Streets NW in the Chinatown section.32 It was re-opened on July 1, 2006 as The Donald W. Reynolds Center for American Art and Portraiture, a melding of two Smithsonian Institution Museums, namely, The National Portrait Gallery and the Smithsonian American Art Museum.

To put matters into some chronological context, the First (new) Utility Patent was granted in 1836. The First Re-Issue Patent was granted in 1838. The First Design Patent was granted in 1843. The First Plant Patent was granted in 1931.33

Several intervening events between the years 1836 and 1877 are rather noteworthy. In 1839, for example, an agricultural division, the predecessor to the U.S. Department of Agriculture, was established in the building’s basement level. Established in the Patent Office, Department of State, by an act of March 3, 1839 (5 Stat. 354), this division compiled agricultural statistics, collected and distributed seeds, and reported on regional crops and the use of chemicals in agriculture.34 The more formal beginnings of the U.S. Department of Agriculture would later take place during President Lincoln’s tenure, in the spring of 1862.

In the spring of 1840, the Patent Office moved into its new headquarters. Wings were later added to the building in 1852, 1856, and 1867, respectively.

A few years following the agricultural division’s debut, in 1842, the first design patent, “Des. 1” (now referred to as U.S. Patent D1), was granted to industrialist George Bruce for “new printing types.” Later, the Act of May 27, 1848 added two principal and two assistant examiners to the office, and the Patent Office was transferred to the newly created Department of Interior. It was not until 1925 that the office was transferred to the Department of Commerce, where it remains to the date of this writing.

Design patents were allowed under the Act of Aug. 29, 1842. The first of this type of patent was awarded to a New Yorker for printing types.35 Another New Yorker, Charles Goodyear, received a more important patent, in 1844, one that ultimately greatly assisted the automobile industry in this country, the vulcanization of rubber.36

After the Republic of Texas joined the Union in 1845, there was a move afoot to have Congress validate patents that had been granted in Texas. No action was taken thereon.37 A year later, Elias Howe secured his sewing machine patent.38 At the Patent Office, patents came to be issued every Tuesday, a practice that persists. By reason of the Act of August 30, 1850, appeals from the Patent Office were to be heard by the U.S. Court for the District of Columbia.

Medical professionals have long had an impact on and in the Patent Office. In 1851, a medical doctor in Florida, John Gorrie, invented the ice machine in his quest to keep his patients cool.39 While Dr. Gorrie’s commercial plans and financial dreams melted away, you can thank later developments in refrigeration and air conditioning for his pioneering work.

The next memorable medical personage to appear on the patent

scene was legendary nurse, Clarissa (“Clara”) Harte Barton (Dec. 25, 1821–April 12, 1912). She was a hospital nurse during the Civil War and was lovingly christened “The Angel of the Battlefield.” She also was a teacher but, back in 1854–57, she was a patent clerk at the U.S. Patent Office.

“Her $1,400 annual salary was the same as that of the male clerks. Secretary of the Interior Robert McClelland did not like women working in government offices and reduced Barton to a copyist with a pay rate of 10 cents for each 100 words. Her position was eliminated when Democratic President James Buchanan was elected in 1856. She then returned to Massachusetts, where she lived with family and friends for several years. When Abraham Lincoln was elected president in 1860, Barton returned to her former position as a copyist at the Patent Office.”40

In 1856, the Patent Office staff consisted of a Commissioner, a chief clerk, 12 examiners, 12 assistant examiners, a draftsman, an agricultural clerk, a machinist, a librarian and about 50 clerical employees. By 1859, copyright matters also were transferred from the Department of State to the Department of the Interior and the Secretary of the Interior directed the Commissioner of Patents to handle copyrights, as well, which he did by adding a “Librarian of Copyrights” to the official roster.

Barton was working as a Recording Clerk in the Patent Office when the Civil War broke out on April 12, 1861. Shortly thereafter, Clara left the office milieu to help and serve the wounded and hungry troops; as such, she has long been remembered for her phenomenal humanitarian work which also included the founding of a marvelous institution that is with us to this day, the American Red Cross.

During the Civil War, parts of the Patent Office also were used as a hospital for troops wounded in battle.41 Speaking of battle, and wounded soldiers, during that time frame, Gatling worked on and perfected his early version of the machine gun and patented same in 1862.42

In one of the shameful chapters of the history of the Patent Office, in 1864, an African American man, Benjamin T. Montgomery, was denied a patent for his new-fangled steamboat-propeller invention. The basis for the denial was the fact that the Applicant was a slave. Commissioner Joseph Holt of the Patent Office, a Kentuckian, interpreted the 1857 Supreme Court decision in the infamous Dredd Scott case to mean that a free black person who had escaped to the North did not have the right to patent his invention.43 Holt and the Patent Office applied that same logic; thus, if Mr. Montgomery was not a citizen, then, it stood to reason that he could not take the required pledge as a citizen that his invention had been conceived by him.44

In a little-known story about the Civil War period, it may well come as a surprise that Jefferson Davis and the Confederacy had created their own “alternate universe” patent office.45 A former U.S. Patent Office Examiner became the one, and only, Confederate Commissioner in the South. Located in Richmond, Virginia, at the Confederate Patent Office, patents were issued for 14 years and, unlike under U.S. federal law at that time, slaves could apply for patent grants.46

In 1869, Samuel Sparks Fisher was appointed the 12th Commissioner of Patents. Fisher, who only served from 1869–1870, actively sought to revamp the patent law and was largely responsible for the Patent Act of 1870.47 Clearly, the most important Patent Act since the

Act of 1836, the July 8th legislation served to consolidate the various statutes relating to patents which had been enacted over the previous three decades, coupled with some fresh provisions.

The 1870 legislation, inter alia, provided that the Commissioner of Patents was afforded jurisdiction to register trademarks and to promulgate rules and regulations concerning marks. As to copyrights, the Librarian of Congress was designated as the Custodian of all records and matters concerning the same. The Commissioner also was given power to make rules and regulations, relating to proceedings in the Patent Office, as well as to disbar any patent agent from practice for misconduct.

That same year, James A. Bland was hired; Bland is considered to be the first African American clerk employed by the Patent Office. The post-war period also brought better results for African American inventors. Most of us are familiar with the expression “the real McCoy.” The phrase was coined, according to legend, back in or around 1872. The prolific African American inventor, Elijah J. McCoy, the Canadian-born son of American slaves, was granted U.S. Patent No. 129,843 for a train lubricating device in that year. Evidently, his invention worked so well that customers, suspicious of cheap imitations, demanded “the real McCoy.” Throughout the course of his patently productive and prolific life, McCoy was granted 57 patents.

On Wednesday, Jan. 3, 1872, the Patent Office published its First Official Gazette. Since that time, the Official Gazette has been published weekly, dutifully recording excerpts from patents and important decisions concerning patent office matters. Nowadays, the USPTO still publishes weekly, every Tuesday, but in electronic form only; there is a separate Official Gazette for Patents and an Official Gazette for Trademarks, and the most recent 52 issues for each are available online for review and study.48

In that time frame, in 1873, Louis Pasteur of France was issued a pair of patents related to improvements in the process of beer-making,49 and Eli H. Janney, an African American from Alexandria, Virginia, received a patent for an automatic train car coupler.50 Later that year, another first occurred; the first female patent examiner, Anna R.G. Nichols, was hired by the Patent Office.

“Mr. Watson—Come here—I want to see you.” Those first intelligible words—heard over the telephone (on 10 March 1876)—were spoken by the scientist and inventive genius, Alexander Graham Bell. Three days earlier, on March 7, Bell, of Salem, Massachusetts, had received a patent on his innovation in electrical communication known as the telephone.51 Mere months later, in January of 1877, Ellis Spear became the Commissioner of Patents (Jan. 29, 1877–Oct. 31, 1878). Thirteen months further into the future, the “Wizard of Menlo Park,” Thomas Alva Edison (who secured 1,093 patents overall), received a patent for his ground-breaking audio phenomenon, the phonograph device.52

In the interregnum between those auspicious patent events and, regrettably, on Commissioner Ellis’ watch, on Sept. 24, 1877, the Third Great Patent Office fire burned out of control in a significant portion of the Patent Office. Albeit many patent models were consumed by the conflagration, fortunately, this time around, many of the most critical archival papers of the Patent Office were spared a fiery fate.

The Third Great Patent Office Fire (of 1877)

Rutherford B. Hayes had been the 18th President of the United States since March 4, 1877. A week or so later, in a small town in the frozen

Northeast, the new and useful invention of earmuffs was patented.53 Since that time, every year now, on the first Saturday of December, the inventor’s hometown of Farmington, Maine (ever grateful for the industry and prosperity that the cottage industry of earmuff-making that succeeded the invention) celebrates “Chester Greenwood Day” with a variety of activities including a parade in Chester’s honor. (I should add that it is mandatory for everyone participating in the parade to wear earmuffs.)54

As spring approached in New England, on April 15, 1877, the first telephone line was laid between Boston and Somerville, Massachusetts. In November of that year, on the 29th day of that month, Edison demonstrated, for the first time, his phonograph invention.

In the media sector, The Washington Post had not quite yet come into existence; as it would not be founded until Dec. 6, 1877. Consequently, on Sept. 24, 1877, a habitual newspaper reader would have to turn elsewhere to read the big news of the day, namely, that a fearsome fire had, once again, erupted at the U.S. Patent Office.

Though the damage was extensive, this time, fortuitously, the fire did not utterly destroy the building as it had done some four decades earlier. Yet, the noxious fumes and licking flames had ruined the West and North Wings.

Once again, as in 1836, numerous patent models had been destroyed. Estimates ranged from around 80,000 models that had been incinerated. (From this point onward, models were no longer mandatory when applying for a patent, but were still frequently requested by the commissioner.) In addition, some 600,000 drawings were burnt to a crisp.55

In the final analysis, however, unlike the situation in 1836, no patents were lost completely.56 The primary reason was that duplicates could be re-printed by the office.

The underlying cause of the 1877 fire was never determined. The most prevalent theory was that a reaction of spontaneous combustion had occurred due to chemical fumes which had, in turn, created a fire hazard vis-à-vis all the flammable material inside the building. Yet another theory of the day was that a lens had caught the sun’s rays and focused them on a combustible object.57 In either case, the “fireproof” building had cost the government $3 Million (in 19th-century dollars)58, with an additional loss of half a million in cash.59

Roughly two-fifths of all the models were damaged either by fire or water. There is an old saying: “Fire, water, and government know nothing of mercy.” On a positive note, some 200,000 drawings were salvaged by being carried by hand out of the building.

The bottom line is that while the building was supposed to be fireproof, its contents (to wit, the models, the papers, the documents, the books) most assuredly were not. And, after all, the roof was constructed of wood. As the old saying warns, “[f]ire and gunpowder do not sleep together.”

Notwithstanding the conflagration of 1877, the U.S. Patent Office soon re-opened for business. This time around it was far easier to accomplish, as duplicates of the patents could simply be re-printed. For the year ended 1877, the Patent Office had granted 185,813 utility patents, and 9,686 design patents.60

Two years later, in 1879, Parisian sculptor, Auguste Bartholdi, was issued U.S. Design Patent No. 11,023 for his awe-inspiring sculpture work entitled “Liberty enlightening the world.” We know it better as The Statue of Liberty. Speaking of Paris, in 1887, the United States joined the Paris Convention, which was an international treaty that served to strengthen and harmonize the protection of pat-

ent-proprietors across the world.

In 1879, the U.S. Supreme Court handed down a decision declaring provisions of the Trademark Law of 1870 unconstitutional. That decision rested on the Court’s reasoning that the Constitution’s patent clause was not broad enough to cover trademarks and that the law was not premised on the “interstate commerce” clause.61 A year later, Edison would receive a patent for the light bulb.62

My focus, decidedly, has been mainly on the 18th century and 19th century events which befell the Patent Office. However, to round out the story (and, perhaps, begin the groundwork for another article), I shall provide a thumbnail sketch of the continued journey of the Patent Office into and during the Twentieth Century and beyond.

During the Roaring Twenties, the first Manual of Patent Examination Procedure was published by the Patent and Trademark Office Society (1920). A decade later, in 1930, Congress passed The Plant Patent Act,63 creating a distinct type of patent to protect new varieties of asexually reproduced non-tuber propagated plants. Within a year, in 1931, inventor Henry Rosenberg received U.S. Plant Patent No. 1 for a “climbing or trailing rose.” The rose in question was named “New Dawn” and this variety remains popular even nowadays.

Twentieth Century Patent Office Moves.

With the heralding of 1932, Application and issue fees for patents were increased to a stiff $30. More crucially, perhaps, over a fourmonth period, the Patent Office physically moved to the Department of Commerce Building.

During the Second World War, in 1942, most of the Patent Office moved to Richmond, Virginia. Only a small portion of the office’s employees was then stationed in Washington. That situation lasted for about five years.

In the fall of 1946, those parts of the Patent Office that had moved to Richmond, Virginia, were then shifted over to a temporary location at Gravelly Point, in Arlington County, Virginia, on the outskirts of Washington, D.C. By Feb. of 1947, the Patent Office was moving back to the Department of Commerce building inside the capitol district.

One other move that I cannot neglect to mention pertained not to the office, writ large, but rather belonged to a certain Patent Agent. Chester Carlson had grown weary of having to make so many copies of patent applications using the then-current copying technology, namely, carbon paper. In 1959, therefore, Carlson developed a new copying process which he presented to IBM for evaluation—and bitter rejection. The IBM people thought the marketplace would do just fine with carbon paper as opposed to a bulky machine to make copies. How wrong they were! Mr. Carlson was none other than the inventor of the process of “xerography,” and the company that would market it: Xerox!64

In April of 1967, the Patent Office started to move its operations, slowly but surely, to a new headquarters, at Crystal City, in Arlington, Virginia. By July of 1968, many internal units had been transferred over to the new locale.

Thankfully, during the roughly 100-year period from the Third Great Patent Office Fire until the renaming of the Patent Office as the “Patent and Trademark Office,” in 1975, there were no more conflagrations. Nevertheless, the seemingly nomadic agency would move its offices yet again.

Re-named, once again, in 2003, the office thereafter, and until today, would be known as the United States Patent and Trademark Office (USPTO). Eventually, around 2005, the USPTO began moving from Arlington to its current headquarters in Alexandria, Virginia, where the office remains to the present time. Later, by 2009, the remaining offices of the Patents and the Chief Information Officer would also move to the city of Alexandria, thus, consummating the agency’s most recent peregrinations.

The USPTO’s aptly named Madison Building, situated at 600 Dulaney Street, in Alexandria, is part and parcel of a campus of 11 buildings amidst a city-like development surrounded by groundfloor retail and high-rise residential buildings. Subsequently, since 2012, USPTO has launched satellite offices in Detroit, Denver, Silicon Valley (San Jose), and Dallas.65

Back in 1790, there was but one man, the First Patent Examiner, Thomas Jefferson, who had toiled over the handful of patent applications presented during that first year. Only three Letters Patent were issued on Jefferson’s watch; today, the USPTO issues hundreds of thousands each patent year. For CY 2015, for example, USPTO issued 325,979 total patents (while taking in a total of 629,647 applications).66 While it took 75 years to issue the first million patents, the last million grants only took three years. Momentously, in 2018, USPTO issued its ten-millionth U.S. Patent.67 Number 11,000,000 was issued on May 11, 2021.

For that special occasion, the USPTO redesigned the patent cover in preparation for the issuance of patent number 10 million. The new design, an homage to the classic elegance of its predecessors, was unveiled on March 11, 2018 and, starting with U.S. Patent No. 10,000,000, has been issued with all patents. That patent was the first to receive the newly redesigned patent cover, and it was signed by President Donald Trump during a special ceremony at the Oval Office.68

A far cry from a lone Thomas Jefferson dutifully sitting at his self-designed work desk, 228 years later, by the year 2016, USPTO had 12,725 employees, 8,351 of which were Patent Examiners, and 570 of which were Trademark Examining Attorneys.69 The USPTO’s Budget for FY2022 was $3.994 Billion, covering 13,723 positions.

The first chief of the Patent Office, Dr. Thornton drew a yearly salary of $2,000 or less. The former Director of USPTO, the 59th leader in its history, was Andrei Iancu (Feb. 8, 2018–2021). Director Iancu, who holds a J.D. from the UCLA School of Law, as well as an M.S. in Mechanical Engineering and a B.S. in Aerospace Engineering, both from UCLA, commanded a salary of $165,300. Notably, that amount is far less than Iancu had made, or could now earn, in private practice.70

For FY 2019, the USPTO requested a budget of $3,078,701,000, as well as 11,686 employees, for its Patent Program.71 Most (entry-level) Patent Examiners start with the USPTO as a GS-7 or GS-9. The accompanying annual salary for that GS range is $54,857 to $83,242.72 In 2017, the average salary at USPTO (salary plus bonus) was $121,797.30 (for a total of $1.52 Billion).73

Worth mentioning, as an aside, is the fact that the USPTO’s budget is unique amongst federal agencies in that it operates solely on the fees collected from its users, rather than taxpayer dollars.74 Truly, the U.S. Patent Office has been and continues to be an amazing organ of government in so many ways and on so many levels. As American author and humorist Mark Twain75 (1837–1911) once wrote: “a country without a patent office and good patent laws is just a crab and can’t travel anyway but sideways and backways.”76

Conclusion

In his great dystopian novel, Fahrenheit 451, legendary author Ray Bradbury effectively used flames as symbolic of fire, heat, and light. Yet, fire also was a symbol of anger, strength, comfort, destruction, and rebirth. Through the sarcastically named “firemen,” who all wear helmet badges emblazoned with the number “451” and pass their days burning books, fire denotes destruction (inasmuch as 451 degrees Fahrenheit is the burn-point temperature for paper and books.) Nonetheless, a central (underground) character in the book, Clarisse, reminds the agonizing and conflicted Fireman, Montag, that candlelight (a form of fire), when controlled, symbolizes the flickering of self-awareness and knowledge.

The early history of the U.S. Patent Office77 parallels, first, a nomadic tribe, moving from one place to another, greener pasture to greener pasture, often, however, as the result of a catastrophic conflagration. As the time-worn adage admonishes us, “once burned, twice shy.”

It is perhaps, ironic, that the central role of controlled fire, one of early man’s crucial—if not the single most important—invention of all time,78 should play a major role in the history and development of the Patent Office. For those of you who prefer to calculate the import of inventions from the advent of “sliced bread,” for your information, the year was 1932 and you can pay your respects to Mr. Otto Rohwedder.79

Oscar Wilde believed that “[w]hat fire does not destroy, it hardens.” The Patent Office certainly has been a survivor. The contents, the archives, of the Patent Office, that is the stuff that kindles the flame of the real fire, the eternal flame as it were; the official oracle where many of humankind’s greatest ideas and the genius of American invention spark to life and forever burn. The mature philosophy of Thomas Jefferson, our First Patent Examiner, perhaps summed it up best: “Ingenuity should receive a liberal encouragement. Patentable subject matter should include anything under the sun that is made by man.”80 

Ira Cohen, Esq., B.A., J.D., LL.M., is an Intellectual Property Attorney and is the founder and principal of Ira Cohen, P.A. of Weston,  FL.  He is a member of the Florida and New York Bars, has been practicing law for 42 years, and is rated AV Pre-Eminent® by Martindale Hubbell.® Attorney Cohen served as Judicial Law Clerk to the Honorable Harold J. Raby, United States Magistrate Judge for the Southern District of New York (1982-85). Ira also is the Immediate Past Chair of the FBA’s Intellectual Property Law Section, a proud Sustaining Member of the Federal Bar Association, a Lifetime Fellow of the Foundation of FBA, the Columns Editor for The Federal Lawyer, an FBA Moot Court Judge, a Member of FBA National Council, and an FBA Mentor.  Ira can be reached at icohen@ictrademarksandcopyrights.com

Endnotes

1A monster hit song for iconic singer-composer Billy Joel in 1989, the lyrics powerfully convey the message that there have always been crazy times and that such times will continue as long as human life exists.

2The word “Capitol” comes from the Latin “Capitolium,” the name of the temple of Jupiter at Rome on the Capitoline Hill.

3“When the British burned Washington in 1814, Patent Office Superintendent William Thornton managed to convince soldiers to spare his building; it was the only government office in D.C. that didn’t get torched.” Stacy Conradt, The Time Every Patent in the U.S.

Went Up in Smoke, Mental Floss Blog (Dec. 15, 2016), https:// www.mentalfloss.com/article/89335/time-every-patent-us-wentsmoke.

4“Those who don’t build must burn. It’s as old as history and juvenile delinquents.” Ray Bradbury, Fahrenheit 451, 42 (Simon & Schuster, 2012 ed.).

5Great Patent Fire of 1836 USPTO, http://www.uspto.gov/ web/offices/ac/ahrpa/opa/kids/special/1836fire

6After the “Storm that saved Washington," as it soon came to be called, the Americans returned to the city. The Folklorist: The Tornado That Saved Washington, D.C. (Internet Video broadcast, Feb. 11, 2014) https://www.youtube.com/watch?v=CP3rhuQ_VrI

7About a month later, on Sept. 13–14, 1814, General Ross and his fleet in Chesapeake Bay were involved in another monumental American historical event that quickly served as the soulful inspiration for a Washington lawyer, Francis Scott Key, to pen the poem (originally entitled the “Defence of Fort McHenry”) that would later be set to music (to wit, “Anachreon in Heaven”) and was destined to become the lyrics to our national anthem, “The Star Spangled Banner.” The event? General Ross and the British Navy had unsuccessfully tried to bombard and invade Baltimore and destroy the American fort that stood stony guard over Baltimore’s harbor. 8At least one source credits the first patent that was awarded to a woman as a letters patent for a means of weaving “straw with silk or thread,” which was granted to Mary Kies of Killingly, Connecticut.

See “U.S. Patent History—Creation of U.S. Patent System, http;// www.ideafinder.com/history/inventions/uspatent.htm

9U.S. Patent No. 8,277X, Cyrus H. McCormick. This machine gave rise to the International Harvester Company, which lasted until 1985.

10U.S. Patent No. 9,430X, for a “revolving gun,” was received by Samuel Colt on Feb. 25, 1836. Colt was also a pioneer of assembly line production. He founded Colt’s Patent Fire-Arms Manufacturing Company in 1836 and it is still in business today.

11U.S. Patent No. 9,798X.

12Staves are vertical wooden posts or planks used in buildings and other structures.

13Ellsworth was nominated by President George Washington to be Chief Justice of the Supreme Court but served for only four years (1796–1800) due to ill health. During Ellsworth’s ephemeral tenure as Chief Justice, Ellsworth’s main legacy was his discouragement of the prior practice of seriatim opinion writing (in which each Justice wrote a separate opinion in the case and delivered that opinion from the bench). Instead, Ellsworth encouraged the consensus of the Court to be represented in a single written opinion, a practice that continues to the present time.

14Cited in Samuel Sass, A Patently False Patent Myth, Skeptical Inquirer , 310–313 (1989).

15Senator Ruggles’ patent was the first denoted with the serial number system, which came into being on July 13, 1836. The same system is still currently utilized. Table of Issue Years and Patent Numbers for Selected Document Types Issued Since 1836. https:// www.uspto.gov/web/offices/ac/ido/oeip/taf/issuyear.htm.

16“…like a fire bell in the night, awakened and filled me with terror.” Thomas Jefferson, Letter to John Holmes, Apr. 22, 1820. Library of Congress. https://www.loc.gov/exhibits/jefferson/159.html

17See, generally, Kenneth W. Dobyns, The Patent Office Pony: A History of the Early Patent Office (reprint edition, 1997).

18Paul J. Niemann, More Invention Mysteries: 52 LitlleKnown Inventions, 129 (2006).

19“The Patent Fire of 1836, http://patent.laws.com/patent-act-of1836-patent-fire-of-1836).patentlaws.com.

20Sabra Chartrand, Patents; The earliest U.S. patents went up in smoke. But a few are still being recovered, even 168 years after the fire, N.Y. Times, Aug. 9, 2004.

21Those patents have no known connection to Dr. Xavier or to “The X-Men” (with due apologies to the late, great Stan Lee, creator of the Marvel Universe®).

22A reissue patent has been defined as “[a] patent that is issued to correct unintentional or unavoidable errors in an original patent, such as to revise the specification or fix an invalid claim. Black's Law Dictionary, 1235 (9th Ed., 2009).

23See JUSTIA Patents for a list of Morley’s U.S. Patents. https:// patents.justia.com/inventor/samuel-morley.

24Bailey printed the first official copy of the Articles of Confederation (the agreement among the 13 original states of the United States of America that served as its first constitution). The Articles of Confederation came into force on Mar. 1, 1781, after being ratified by all 13 states.

25The timing of this patent granted only two months before the Whiskey Excise Tax which, in turn, gave rise to the Whiskey Rebellion (1791–1794), was less than fortuitous. The so-called “whiskey tax” was the first tax imposed on domestic goods by the neophyte federal government and was designed to raise revenue for Revolutionary War debt. What it did raise were tempers and a call to arms.

26In case you have ever wondered, “gin” is just a shorthand form of the word “engine.” The reason that the cotton gin was so critical and impactful on the American economy was that the invention served to separate the embedded seeds from the cotton.

27Internal combustion engines enjoy a very long history. Between the 10th and 13th centuries, the “fire arrow,” a gunpowder-fueled form of rocket engine was invented in China.

28Daniel Preston, The Administration and Reform of the U.S. Patent Office 1790–1836, Journal of the Early Republic No. 3, 331–353 (1985).

29See, e.g., Brief History of the United States Patent Office from its foundation—1790 to 1886—with an outline of laws, growth, publications, office routine, etc. (R. Beresford, Printer., Washington, D.C., 1886), http://www.myoutbox.net.pobere

30The patent, No. 132, was granted in 1837 to Thomas Davenport. 31Dickens at Georgetown: A Bicentenary Celebration, Feb. 7, 2012, June 8, 2012. https://www.library.georgetown.edu/exhibition/ dickens-georgetown-bicentenary-celebration.

32President Eisenhower gave it to the Smithsonian Institution in 1958. “10 Million Patents,” https://10millionpatents.uspto.gov

33Table of Issue Years and Patent Numbers for Selected Document Types Issued Since 1836, https://www.uspto.gov/web/offices/ac/ ido/oeip/taf/issuyear

34Records of the Agricultural Division 1839-60. Transferred, with the Patent Office, to the Department of the Interior by the act creating the department (9 Stat. 325), Mar. 3, 1849. Division functions were transferred to the newly established Department of Agriculture in 1862. Textual Records: Records relating to annual reports, 1839–60, including letters received concerning crop prospects and agricultural practices, questionnaires, and articles and

essays. Records relating to the collection and distribution of seed plants, 1839-60, including reports from consular officials, foreign seed firms, and missionaries; requests from agricultural societies and farmers; and reports about cultivating seeds and plants. Related Records: Letters sent by the Agricultural Division of the Patent Office, 1849–1862, in RG 48, Records of the Office of the Secretary of the Interior. https://www.archives.gov/research//guide-fedrecords/groups/016.html#16.2

35U.S. Design Patent No. 1, for “Printing types,” George Bruce, New York, N.Y.

36U.S. Patent No. 3,633, for an “Improvement in the Manner of Preparing Fabrics of India Rubber,” issued June 15, 1844. 37During the Civil War, the Confederacy set up its own patent office; see notes lxvii and lxviii, infra.

38U.S. Patent No. 4,750, Elias Howe, Jr., for an “Improvement in Sewing Machines,” issued on Sept. 10, 1846.

39U.S. Patent No. 8080, to Gorrie, for an ice machine, in 1851. 40Maggie MacLean, Clara Barton (The Angel of the Battlefield), https://ehistory.osu.edu/biographies/clara-barton-angel-battlefield. 411861–1863. Soldiers also were quartered in some of the rooms and thefts of models were reported.

42U.S. Patent No. 36,836, to Richard J. Gatling, of Indianapolis, Indiana, for an “Improvement in Revolving Battery Gun,” issued Nov. 4, 1862.

43Dredd Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L. Ed. 691 (1857). The infamous Supreme Court decision held that persons of African descent could not be and were not intended to be American citizens under the U.S. Constitution and, thus, lacked standing to sue in federal court.

44Matt Novak, The Story of the American Inventor Denied a Patent Because He Was a Slave, Paleofuture, Aug, 28, 2018, https:// paleofuture.gizmodo.com/the-story-of-the-american-inventordenied-a-patent-beca-1828329907

45This was provided for in the Constitution of the Confederate States of America (May 21, 1861).

46It is believed that less than 300 patents were issued by the Confederacy; we will never be sure, as all the records ostensibly were destroyed.

47Patent Act of 1870, Ch. 230, 16 Stat. 198–217 (July 8, 1870).

48Official Gazette for Patents, https://www.uspto.gov/learning-andresources/official-gazette/official-gazette-patents; Official Gazette for Trademarks, https://www.uspto.gov/learning-and-resources/ official-gazette/trademark-official-gazette-tmog.

49Patent No. 132,245, issued Jan. 28, 1873, for “Improvements in the Process of Making Beer” and Patent No. 141,072, issued July 22, 1873, for “Improvements in the Manufacture and Preservation of Beer and in the Treatment of Yeast and Wort, Together with Apparatus for the Same.”

50Car Couplings, Patent No. 138,405 (issued Apr. 2, 1873).

51Telegraphy, Patent No. 134,465.

52Phonograph or Speaking Machine, Patent No. 200,521 (issued Feb. 19, 1878).

53Invented in 1873 by Chester Greenwood, of Farmington, Maine, the patent awarded to his improved ear protectors was U.S. Patent No. 188,292 (issued Mar. 13, 1877).

54David Sharp, Ear, Ear: Maine Town Hails Earmuff’s Inventor, CHIC. TRIB., Dec. 5, 2015, at 3.

55Levin H. Campbell, The Patent System of the United

States so Far as It Relates to the Granting of Patents: A History (1891).

56Niemann, supra, at 130.

57Patent Office Fire, Harper’s Weekly, 809–810, Oct. 13, 1877. 58In 2018 dollars, the amount in question would be worth $83,698,757.57.

59Bret Harte, The Writings of Bret Harte, 237 (1914).

60U.S. Patent and Trade Office, Table of Issue Years and Patent Numbers, for Selected Document Types Issued Since 1836, https://www.uspto.gov/web/offices/ac/ido/oeip/taf/issuyear.htm.

61U.S. v. Steffens; U.S. v. Wittemann; U.S. v. Johnson, 100 U.S. 82 (1879); those cases had to do with criminal prosecutions, under the trademark laws, for alleged trademark counterfeiting.

62U.S. Patent No. 223,898, Thomas A. Edison, Menlo Park, N.J., for “An Electric Lamp for Giving Light by Incandescence”, granted on Jan. 27, 1880.

63The Plant Patent Act of 1930 (enacted on June 17, 1930, as Title III of the Smoot-Hawley Tariff, Ch. 497, 46 Stat. 703, codified as 35 U.S. Code Ch. 15).

64U.S. Patent History, Ch. 497, 46 Stat. 703, codified as 35 U.S. Code Ch. 15). 64 U.S. Patent History—Creation of U.S. Patent System, http://www.ideafinder.com/history/inventions/ uspatent.htm

65“U.S. Patent and Trademark Office Opens New Texas Regional Office, Nov. 13, 2015, http://www.commerce.gov/ news/blog/2015/11/us-patent-and-trademark-office-opens-newtexas-regional-office

66U.S. Patent Statistics Summary Table, Calendar Years 1963–2014, 6/2-015 update, http://www.uspto.gov/web/pffices/ac/ ido/oeip/taf/us_stat.htm

67U.S. Patent No. 10,000,000, issued on June 19, 2018, to Inventor Joseph Marron (and his Assignee, Raytheon Company), for his invention, namely, a “Coherent LADAR Using Intra-Pixel Quadrature Detection,” which improves laser detection and ranging (LADR).”

68Press Release, U.S. Patent and Trademark Office, United States Issues Patent Number 10,000,000 (June 19, 2018), https://www. uspto.gov/about-us/news-updates/united-states-issues-patentnumber-10000000

69Patent examiners, who make up the lion’s share of USPTO personnel, generally are newly graduated scientists and engineers. While they hold degrees in various scientific disciplines, they need not have law degrees. Unlike Patent Examiners, Trademark Examining Attorneys must be licensed attorneys.

70Staci Zaretsky, The $4 Million Man: Meet Trump’s Patent And Trademark Pick, Above the Law, Sept. 27, 2017, https:// abovethelaw.com/2017/09/the-4-million-man-meet-trumps-patenttrademark-pick

71U.S. Patent and Trademark Office Fiscal Year 2019 Congressional Justification, Feb. 12, 2018, http://www. osec.doc.gov/bmi/BUDGET/FY19CBJ/USPTO_FY19_ President%E2%80%99s_Budget-FINAL.pdf.

72Engineers and Scientists, Job Announcements are now open for Patent Examiners (2018), https://www.uspto.gov/ sites/default/files/documents/Examiner%20brochure%202018%20 downloadable.pdf.

73Patent and Trademark Office Salaries of 2022, https://www. federalpay.org/employees/patent-and-trademark-office

74United States Patent and Trademark Office, 10 Million Patents Media Kit (2018), https://10millionpatents.uspto.gov/ docs/patent-10million-media-kit.pdf.

75Twain, himself an inventor, held a number of patents. The author of such classic American novels as The Adventures of Huckleberry Finn and The Adventures of Tom Sawyer,, Twain held a patent for the “Improvement in Adjustable and Detachable Straps for Garments” (ubiquitous in modern clothing, especially in bras); under his legal name, Samuel Langhorne Clemens, he received his patent, No. 121,992, for the garment fastener on Dec. 19, 1871. Twain secured two other patents, to wit: the first for a selfpasting scrapbook (U.S. Patent No. 140245, granted June 1873), and the second for a history trivia “Game Apparatus” (U.S. Patent No. 324535, granted August 1885).

76Mark Twain, A Connecticut Yankee in King Arthur's Court (1889).

77For further reading, see Kenneth W. Dobyns, The Patent Office Pony: A History of the Early Patent Office (1st edition, 1994), Fredericksburg, Virginia: Sergeant Kirkland’s Museum and Historical Society, p. 249.

78The controlled use of fire generally is thought to be an invention of our ancestors, Homo erectus, during the Early Stone Age.

79U.S. Patent No. 1,867,377, Otto Frederick Rohwedder, of St. Joseph, Missouri, for a bread slicing machine, granted July 12, 1932.

80See 5 Writings of Thomas Jefferson 75–76 (Washington ed. 1871).

See also Diamond v. Chakrabarty, 447 U.S. 303, 308-309 (1980).

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