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THE

THIRD BRANCH

A Wrap-Up of the 110th Congress

During the 110th Congress, several pieces of legislation reflecting Judicial Conference positions were enacted. Among the legislative achievements of the first session of the 110th Congress were the passage of the Court Security Improvement Act of 2007, Pub. L. 110-177, creating a criminal penalty for filing false liens against the property of a federal judge and requiring the U.S. Marshals Service to consult with the Judicial Conference on matters relating to court security, among other provisions; and the Judicial Disclosure Responsibility Act, Pub. L. 110-24, authorizing the Judicial Conference to redact personal and sensitive information from financial disclosure reports where the release of that information could endanger the filer or a member of the filer’s family. Certain legislation opposed by the Judicial Conference failed to pass in the 110th Congress, including bills imposing cameras in federal courts. Among the bills enacted into law during the second session of the 110th Congress were: Pub. L. No. 110-199 (H.R. 1593)— The Second Chance Act, which provides assistance to state and

INSIDE

Newsletter of the Federal Courts

Vol. 41 Number 2 February 2009

On Being Chief Judge Every federal court is led by a chief judge, whose responsibility is “the efficient and effective administration of the court in compliance with statutes.” The job calls for an individual to see not only that administrative tasks in the court are carried out, but also to address the needs of the public, attorneys, court staff, and fellow judges. For many judges who come to the position, it’s a job with mixed blessings. There’s the opportunity to See Chief Judge on page 4

INTERVIEW

local government to help persons leaving prisons and re-entering the community. The new law expands the authority of the Director of the Administrative Office with respect to contracting for certain re-entry services for persons released from federal custody. Signed into law on April 9, 2008. Pub. L. No. 110-315 (H.R. 4137)— The Act extends to federal defenders the opportunity to participate in a Perkins loan cancellation program that has been available to prosecutors. Included in that law is the John

See Wrap-Up on page 2

The 111th Congress Begins..............................................................pg. 2 Teaching Offenders to Change Their Thinking..........................pg. 3 Study Looks at Class Action Suits.................................................pg. 5

Committee Works Toward Diversity, Studies Pay, and Measures Work Judge George Z. Singal was appointed to the U.S. District Court for the District of Maine in 2000. He has been a member of the Judicial Conference Committee on Judicial Resources since 2003, and became chair of the Committee in 2007.

Q:

What responsibilities are delegated to the Committee on Judicial Resources by the Judicial Conference?

See Interview on page 10


Wrap-Up continued from page 1

R. Justice Prosecutors and Defenders Incentive Act of 2008, which authorizes a student loan repayment program for federal defenders, as well as for state and local prosecutors and defenders. Signed into law on August 14, 2008. Pub. L. No. 110-322 (S. 2450)— The Act creates a new Federal Rule of Evidence, Rule 502, regarding disclosure of privileged or protected material, that limits unintentional waivers of the attorney-client privilege and work-product protection to facilitate discovery and reduce its costs. This is the first rule of evidence relating to privilege that Congress has enacted in the 30 years

since the Rules Enabling Act was passed. Congress passed Rule 502 in the exact form proposed by the Judicial Conference. Signed into law on September 19, 2008. Pub. L. No. 110-406 (S. 3569)— Judicial Administration and Technical Amendments Act of 2008. The bill contains 18 provisions based on recommendations of the Judicial Conference to improve court administration. Provisions in the Act establish a mechanism to increase the case compensation maximums for representation of Criminal Justice Act defendants in non-capital cases by the same percentage as any increases in the hourly compensation rates; clarify the availability of intermittent confinement and community

The 111th Congress Begins The 111th Congress officially convened on January 6, 2009, the 110th Congress having adjourned sine die on January 2. Both Houses began work immediately on the fiscal year 2009 appropriations bills, including the Judiciary’s appropriations bill, as an omnibus package. The November elections increased the number of Democrats in both Houses, changing the ratios of Republicans to Democrats on congressional committees. However, the Senate won’t finalize its committee rosters until the Senate election in Minnesota is determined. Judiciary Committees The chairs and ranking minority members of the Judiciary Committees, Senators Patrick Leahy (D-VT) Sen. Patrick and Arlen Specter (R-PA) Leahy in the Senate and Representatives John Conyers (D-MI) and Lamar Smith (R-TX) in the House, remain the same.

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In the Senate, Senators Edward M. Kennedy (D-MA), Joseph R. Biden Jr. (D-DE), and Sam Brownback (R-KS) left the Sen. Arlen committee. Senators Ted Specter Kaufman (D-DE), Amy Klobuchar (D-MN), and Ron Wyden (D-OR) are new members. On the House Judiciary Committee, Conyers Rep. John announced a change Conyers in subcommittee jurisdiction, creating the subcommittee on Courts and Competition Policy from the former SubcomRep. Lamar mittee on Courts, the Smith Internet and Intellectual Property. The new subcommittee will deal with antitrust law, monopolies, restraint of trade, and the adminRep. Hank istration of the federal Johnson courts, including federal rules and judicial ethics. Representative Hank Johnson (D-GA) chairs

confinement as possible conditions of supervised release; authorize the Director of the Administrative Office to provide goods and services to pretrial defendants and clarify similar authority for post-conviction offenders; and restore a minimum of three judges as members of the U.S. Sentencing Commission, among others. Five provisions made the most substantive changes to the Jury Selection and Service Act, 28 U.S.C. §§ 1861, et. seq., in 20 years. These provisions affect attendance fees, jury summonses, jury wheels, penalties affecting jury service, and strengthen a juror’s right to serve without retaliation. Signed into law on October 13, 2008.

the subcommittee and Representative Howard Coble (R-NC) is the ranking minority member. Intellectual Rep. Howard property issues, once Coble part of the subcommittee’s jurisdiction, now will be handled at the full committee level. Appropriations Committees Representative José E. Serrano (D-NY) remains chair of the House Appropriations Subcommittee Rep. Jose E. on Financial Services Serrano and General Government. Funding for the Judiciary is under this subcommittee’s jurisdiction. Representative Jo Ann Emerson Rep. Jo Ann (R-MO) is the new Emerson ranking minority member, replacing retired Representative Ralph Regula (R-OH). The Senate has not yet finalized its committee memberships.


Teaching Offenders to Change Their Thinking – and Change Their Lives A young man is trying to explain his recent (mis)behavior to a group of his peers. They’re all federal offenders under supervised release with criminal histories that include violent crime and gang involvement. The group isn’t sympathetic. In fact, they’re pointing out the errors in thinking that led him to act that way. And they’ll end by discussing what he should do the next time temptation calls. The men are participants in a program that uses Cognitive Behavior Therapy (CBT) to modify antisocial behavior—and thereby reduce recidivism. Their particular group employs Moral Reconation Therapy (MRT), a technique to develop moral reasoning. It’s just one of half a dozen techniques that may use workbooks, counseling, and journals to help offenders change their thinking, change the way they make decisions, and hopefully keep them from re-offending. “No one ever taught these offenders how to draw conclusions,” said Probation Officer Anna Pakiela in the Western District of Michigan. “We expect them to do right, when they really don’t know what that is. But this isn’t about excuses. MRT is about accepting personal responsibility and understanding how your actions impact others. Live within the rules, or don’t. But accept the consequences.” Nationwide, probation offices in 13 districts receive funding from the Judiciary’s Research 2 Results program to run programs such as MRT, or Thinking for a Change, or Courage to Change Interactive Journaling, to name a few. The names of the programs may vary, but under the umbrella of CBT they all are based on the concept that our thoughts cause our feelings and behaviors. Give offenders the skills to change the way they think and they can change the way they behave.

In cognitive behavior therapy, offenders may work one-on-one with an officer-facilitator or in small groups.

Judge Robert Holmes Bell (W.D. Mich.), a federal judge for 20 years, is a supporter of CBT programs. In his district he works closely with offenders, offering what he calls enhanced probation. “The Sentencing Reform Act of 1984 put the responsibility of post-incarceration in the Judiciary’s lap,” said Bell. “We’re statutorily vested with improving offenders’ lives. And now that we have the sentencing guidelines in proper perspective, is there something we can do that is thoughtful and supported by evidence-based practices to reduce the likihood that an offender will commit a new crime?” Research shows that six criminogenic needs underlie recidivism. “They’re the reasons why we have problems with offenders re-offending,” said Rich Crawford, chief probation officer for the District of Hawaii. “Changing those needs can reduce recidivism.” Crawford and his officers put a positive spin on those needs, emphasizing social values, self-control, peer relationships, family ties, employment, and responsible thinking. Offenders’ needs in each of these

areas are identified and addressed through the district’s Courage to Change Interactive Journaling program. Initial program costs are for staff training; like all CBT programs, Hawaii’s program follows a manual, which ensures reliable and consistent delivery of the therapy by facilitators and officers. There is a journal designed for each of the criminogenic needs and a syllabus for the officers that helps identify issues and address general thinking patterns and behavior. “The beauty of journals is in the way they can be applied,” said Probation Officer Jonathan Skedeleski. “We had one offender who didn’t read or write. But he could draw in his journal. We can compensate for a lack of literacy, especially because there is officer involvement.” Typically, groups of up to nine offenders work with two officer-facilitators, but over 70 individuals in the District of Hawaii also work one-toone with officers. As more officers are trained, more offenders will move into the interactive journaling program. Offenders selected for the program begin by watching a video See Teaching Offenders on page 9

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Chief Judge continued from page 1

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make a contribution, yet the demands of the job can be overwhelming. “It’s a very rewarding job and there’s satisfaction in helping to resolve problems and help the court run more efficiently,” said Judge J. Harvie Wilkinson, who served a 7-year term as chief judge in the U.S. Court of Appeals for the Fourth Circuit. “At the same time, a chief judge can’t be afraid to delegate. You need to choose good people and trust and rely on them. There’s no way you can do it all yourself.” “Delegating is a good thing,” agrees Chief Judge Donetta Ambrose in the U.S. District Court for the Western District of Pennsylvania. “I speak with my clerk daily, but I don’t micromanage. Having capable people running the court makes my job easier. I have the final responsibility, but every one of my colleagues has an important job to do.” A recitation of just a few of a chief judge’s responsibilities (in no particular order) illustrates why delegation is key. Chief judges: • ensure that laws, regulations, and court policies are followed; • monitor court caseloads; • develop and implement court plans; • supervise the clerk of court; • oversee local rule-making; • resolve informal disputes; • review court budgets and court spending; • oversee space acquisition, alterations, and construction; • ensure court security and emergency preparedness; • appoint and serve on court committees; • file reports and plans in a timely manner with the circuit judicial council, the AO, and other entities; and • serve as a liaison with outside groups such as the Judicial Conference, the public, the bar, state and local courts and governments, agencies, schools and the media. There’s also interaction with the The Third Branch

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U.S. Marshals Service, the U.S. Attorney’s Office, and other federal government agencies. At the district level, a chief judge supervises chief probation and pretrial services officers, monitors magistrate judges, oversees the use of jurors, and maintains effective relations with the bankruptcy court. At the circuit level, a chief judge presides over any three-judge panel to which he or she is assigned, presides over meetings of the circuit council, supervises the appointment of bankruptcy judges, and authorizes and requests intercircuit and intra­ circuit assignments of judges. He or she also reviews complaints of judicial misconduct and disability, and serves on the Judicial Conference. In much of this work, the chief judge relies on the circuit executive, the clerk of court, and other appellate court staff members. Each court of appeals and district court is headed by a chief judge. Eighty-eight of the 92 bankruptcy courts name a chief bankruptcy judge and 42 of the 94 district courts name a chief magistrate judge. “It was a great honor, the day I became chief judge,” Bankruptcy Chief Judge Albert S. Dabrowski in the District of Connecticut said, “but I quickly realized that I had significant new responsibilities but little or no new authority.” Chief Judge Anthony Ishii inherited a district with the highest weighted caseload per judge when he became chief judge of the U.S. District Court for the Eastern District of California last June. “The outgoing chief judge gave me a pretty good idea of what to expect,” he said. “Nonetheless, Day One came as quite a surprise. It hits you immediately—the chief judge has an incredible array of duties to perform. There has been a dramatic increase in my interactions with the clerk of the court, staff, agencies, the circuit court, and the Administrative Office, and in preparing reports, correspondence, and other documents.

It was an eye-opener how time consuming the job of chief judge is, and I have certainly gained an even greater appreciation for anyone who has ever served as a chief judge.” Chief judges come to the position through seniority in their courts. Generally chief bankruptcy judges are chosen by a majority vote of the district court judges, but some bankruptcy courts, such as the U.S. Bankruptcy Court for the District of Connecticut, mirror district courts with chief judges who serve a sevenyear term and cannot serve beyond age 70. Chief judges are, as it’s traditionally expressed, first among equals, but they receive no additional pay for taking on the job, nor do they have any additional powers. Chief Judge Sandra Lynch has been chief judge of the U.S. Court of Appeals for the First Circuit for less than a year, the first woman to hold that position in the circuit. She has a background that includes leadership of the 8,000–member Boston Bar Association and of the litigation department of a large law firm. “And while the management skills I learned in those jobs are useful,” Lynch said, “I’ve discovered that federal courts are a unique model of an organization. This is where consensus drives a chief judge’s management style. I work very hard at communicating to build agreement.” Lynch’s first surprise as chief judge was how lean staffing is in the courts compared to that in private organizations. Her second surprise involved the complaints made against judges; misconduct complaints are by statute directed to the chief judge of the court of appeals. “It’s the nature of the job that judges rule against someone. But I note how many of those complaints about judges and their rulings are made by people who seem to be very angry,” Lynch said. “As a result, I am much more concerned about the safety of our federal judges.” Her


circuit has looked at better mechanisms to assess risk and protect judges and hopes to work with the U.S. Marshals Service as it sets up a national threat assessment center. A vacancy in the office of a district or circuit chief judge is filled by the judge in regular active service who is senior in commission, is 64 years of age or younger, has served at least a year as district or circuit judge, and has not previously served as chief judge. His

or her term is limited to seven years, except when there is a delay until another judge becomes eligible. No judge may serve as chief judge beyond the age of 70—unless no other judge is eligible to become or act as chief judge. In June, Chief Judge Lynn Winmill will have served ten years as chief judge for the U.S. District Court for the District of Idaho, several years over the limit. There’s simply no one to replace him. “The only other district judge can’t be chief because of his age,” said Winmill, whose district currently has only two active judgeships. “So until there’s a new judgeship or a vacancy that can be filled, there’s no end in sight.” The term “chief judge” has only been used since 1948, when Congress replaced the term senior district or circuit judge with chief judge, a change made by legislation drafters, “in view of the great increase of administrative duties of such judges.” Those duties have only continued to expand. Despite this, most chief judges carry a full or only slightly decreased caseload. “A chief judge should try to sit

on as many cases as possible,” said Wilkinson. “It’s important that you retain a sense among your colleagues that you are one of them—if only because when you ask a colleague to add to his or her workload, he or she knows you’re carrying a substantial caseload and an administrative workload too.” Chief judges have the opportunity to put their imprint on a court. Dabrowski has taken his bankruptcy court 100 percent paperless. Ambrose inaugurated a now robust alternative dispute resolution program and electronic case filing, and renovated four new badly needed courtrooms. Winmill started a federal bar association, moved his court into a new courthouse with improved facilities, and consolidated automation, human resources, budget, and procurement for added efficiencies. “If you’d like to make a difference in the way things are, there’s no better job,” said Winmill. Wilkinson agrees. “Being chief judge is a great opportunity to help other people,” he said. “And isn’t that what judges are in the business of doing?”

Study: Class Action Plaintiffs Most Often Did Not Seek to Certify Class A recent Federal Judicial Center (FJC) study finds that plaintiffs in most diversity class action cases never asked a judge to “certify a class” of those allegedly affected similarly. Citing findings that plaintiffs filed certification motions in fewer than 25 percent of such cases, the interim report states that “in diversity class actions there is less to class allegations than one would expect.” These results can be found in the latest interim report in the FJC’s ongoing study of the impact of the Class Action Fairness Act of 2005 (CAFA). This report focuses on preCAFA class action lawsuits that landed in federal courts because the

parties—plaintiffs and defendants— were from different states (so-called diversity cases). The findings were based on 231 diversity class actions that reached final disposition. The FJC plans to issue its next interim report in the fall of 2009, in which it will begin to compare pre-CAFA and post-CAFA data. A final report on the law’s impact is not expected until sometime in 2010. An earlier interim report found that the law, aimed at facilitating removal of class action lawsuits from state to federal courts, already has increased the number of such cases handled in federal courts at a rate of

several hundred cases per year. Among the principal findings in the latest interim report are these: • Parties proposed class settlements in 21 of the 231 cases, or 9 percent. • Judges approved all 21 proposed settlements, although approval in three cases came only after the proposal was modified. • Parties typically did not file many motions in the cases. Fiftysix percent of the cases had one or no motions filed. • Voluntary dismissal of the lawsuit was the most frequent disposition. See the interim report at www. fjc.gov/public/pdf.nsf/lookup/ cafa1108.pdf/$file/cafa1108.pdf. The Third Branch

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Federal Offender Demographics Change with Time By the end of fiscal year 2008, more than one million federal offenders had been sentenced under the Sentencing Guidelines. The U.S. Sentencing Commission released two reports in January 2009, one that looked at federal criminal sentencing since 1991, and a second that provides an overview of federal criminal cases in 2007. Together, the reports paint a demographic picture of federal offenders and identify trends in the criminal caseload of district courts over the last 17 years—a time during which the number of criminal defendants sentenced annually by federal courts has more than doubled. There are few surprises. The demographic characteristics of the annual federal offender population when measured by gender and age have remained largely unchanged over the past 17 years. Most federal offenders are U.S. citizens, although the proportion of non-citizens has increased steadily. In FY 1991, 77.3 percent of federal offenders were U.S. citizens, but by FY 2007 this proportion had decreased to 62.6 percent. Men dominate the federal caseload and more than half are between the ages of 21 and 35, with an average age at sentencing of 34.5

E-Mail Updates Have Judiciary news releases, newsroom updates, and notification of new publications, content and programs sent directly to your email. Look for “EMail Updates” on the Judiciary’s homepage at www.uscourts. gov, enter your email, and select the topics that interest you. The e-mail subscription service is free.

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Comparison of Persons Sentenced Under the Sentencing Guidelines in Fiscal Year 1991 and Fiscal Year 2007 Offense

Drug Trafficking Immigration

FY 1991

FY 2007

2,300

17,592

13,521

Fraud

Firearms

All Other Offenses TOTAL Overall

3,534 2,495

11,480

33,330

years. Approximately 31 percent of offenders from 1991 to 2007 were high school graduates and 7 percent were college graduates, but beginning in FY 1997, the proportion of offenders with less than a high school education began to rise slightly. By FY 2007, the proportion had risen from its prior level of approximately 42 percent. Almost half of the federal offenders sentenced in FY 2007 (48.2 percent) had not completed high school. In FY 2007, 72,865 persons were sentenced under the guidelines, more than double the number sentenced in FY 1991. Increases in the number of persons sentenced for drug trafficking, immigration, fraud, and firearms offenses account for nearly all (91.8 percent) of this increase in the annual caseload. Drug trafficking offenses have always been the most prevalent offense type sentenced under the guidelines, and are currently followed by immigration, fraud, and firearms offenses. But between 1991 and 1994, larceny offenses numbered among the top four, with immigration offenses as the fifth most prevalent offense type. In 1995, that changed when the number of immigration offenses surpassed larceny offenses for the first time and by 1998 had become the second most prevalent offense type.

24,332

7,767 8,359

14,715 72,765

Over the last 17 years, the overall number of immigration offenders sentenced annually has increased 664 percent. Both fraud and firearms offenses experienced relatively large numeric and proportional increases between 1991 and 2007. The number of firearms offenses increased from 2,495 in FY 1991 to 8,359 in FY 2007—a 235 percent increase. Firearms offenses over the past nine years have increased 203 percent. In FY 2007, more than 95 percent of all offenders plead guilty—a rate that has remained largely unchanged for ten years. When offenders plead guilty, 38.3 percent received a sentence below the applicable guidelines range, either at the request of the government or at their own request. When offenders did not plead guilty, 24.1 percent received a sentence below the guideline range. Most offenders received a sentence of incarceration and virtually all were sentenced to serve a period of supervised release following the completion of their confinement. To read the complete reports, visit the website of the U.S. Sentencing Commission at www.ussc.gov. The reports can be found at http:// www.ussc.gov/general/20081230_ Changing_Face_Fed_Sent.pdf and http://www.ussc.gov/general/ 20081222_Data_Overview.pdf.


Nominations Invited for 2009 Director’s Awards

JUDICIAL MILESTONES

Nominations are now being accepted for the 2009 Director’s Awards. Three categories of awards recognize Judiciary employees: managerial employees who have contributed on a national level through their outstanding leadership; employees’ who have made contributions to excellence in court operations in the areas of court administration, court technology, court support, or mission

Appointed: Edward G. Bryant, as U.S. Magistrate Judge, U.S. District Court for the Western District of Tennessee, December 15.

requirements; and employees who through their extraordinary actions have responded in an outstanding manner in an emergency or other critical situation. Nomination forms and additional information are available on the Judiciary’s intranet. Nominations must be submitted electronically no later than March 16, 2009 to Judith Weber, Office of Human Resources, Judith_Weber @ao.uscourts.gov.

Judgeship Appointments by President President Roosevelt (1933-45) Truman (1945-52)

Eisenhower (1953-60) Kennedy (1961-63) Johnson (1963-68) Nixon (1969-74) Ford (1974-76)

Carter (1977-80) Reagan (1981-88) Bush (1989-92) Clinton (1993-00) Bush (2001-08)

Regional Supreme District Court of USCAFC1 Court Courts Appeals

2

Appointed: Paul E. Davison, as U.S. Magistrate Judge, U.S. District Court for the Southern District of New York, January 5. Appointed: D. Thomas Ferraro, as U.S. Magistrate Judge, U.S. District Court for the District of Arizona, December 30.

Court of Int’l Trade2

TOTAL

3

9

52

136

7

204

4

27

102

4

137

5

45

127

3

180

2

20

102

0

124

2

41

125

8

176

4

45

182

1

232

1

12

52

0

65

0

56

206

0

262

3

78

5

292

6

384

2

37

5

149

1

194

2

62

4

306

5

379

2

61

2

261

2

328

The U.S. Court of Appeals for the Federal Circuit (USCAFC) was established in 1982. Originally was designated the U.S. Customs Court; became the U.S. Court of International Trade in 1980. This number represents the total number of appointments not judges. Several of these judges have been elevated. For example, President Reagan appointed Antonin Scalia to the U.S. Court of Appeals in 1982 and also appointed him to the Supreme Court in 1986. President Bush appointed Clarence Thomas to the U.S. Court of Appeals in 1990 and also to the Supreme Court in 1991.

1

Appointed: John M. Conroy, as U.S. Magistrate Judge, U.S. District Court for the District of Vermont, December 22.

Appointed: Terrance L. Wilson, as U.S. Magistrate Judge, U.S. District Court for the Northern District of Oklahoma, January 2. Elevated: U.S. District Judge Julie E. Carnes, to Chief Judge, U.S. District Court for the Northern District of Georgia, succeeding U.S. District Judge Jack T. Camp, January 1. Elevated: U.S. District Judge Susan J. Dlott, to Chief Judge, U.S. District Court for the Southern District of Ohio, succeeding U.S. District Judge Sandra S. Beckwith, January 2. Elevated: U.S. District Judge David Folsom, to Chief Judge, U.S. District Court for the Eastern District of Texas, succeeding U.S. District Judge Thad Heartfield, January 1. Elevated: U.S. District Judge Gerald E. Rosen, to Chief Judge, U.S. District Court for the Eastern District of Michigan, succeeding U.S. District Judge Bernard A. Friedman, January 1. Elevated: U.S. District Judge John A. Woodstock, Jr., to Chief Judge, U.S. District Court for the District of Maine, succeeding U.S. District Judge George Z. Singal, January 5.

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J U D I C I A L M I L E S T O N E S continued from page 7 Senior Status: U.S. Court of Appeals Judge R. Lanier Anderson, III, U.S. Court of Appeals for the Eleventh Circuit, January 31.

Senior Status: U.S. District Judge James M. Munley, U.S. District Court for the Middle District of Pennsylvania, January 30.

Senior Status: U.S. Court of Appeals Judge Martha Craig Daughtrey, U.S. Court of Appeals for the Sixth Circuit, January 1.

Senior Status: U.S. District Judge James Robertson, U.S. District Court for the District of Columbia, December 31.

Senior Status: U.S. District Judge Harry F. Barnes, U.S. District Court for the Western District of Arkansas, November 1.

Senior Status: U.S. District Judge John C. Shabaz, U.S. District Court for the Western District of Wisconsin, January 20.

Senior Status: U.S. Chief District Judge Sandra S. Beckwith, U.S. District Court for the Southern District of Ohio, January 1.

Senior Status: U.S. District Judge Alicemarie H. Stotler, U.S. District Court for the Central District of California, January 5.

Senior Status: U.S. Chief District Judge Jack T. Camp, U.S. District Court for the Northern District of Georgia, December 31.

Senior Status: U.S. District Judge N. Carlton Tilley, Jr., U.S. District Court for the Middle District of North Carolina, December 16.

Senior Status: U.S. District Judge Frank C. Damrell, Jr., U.S. District Court for the Eastern District of California, December 31.

Retired: U.S. Chief Bankruptcy Judge Glen E. Clark, U.S. Bankruptcy Court for the District of Utah, January 5.

Senior Status: U.S. District Judge Stanwood R. Duval, Jr., U.S. District Court for the Eastern District of Louisiana, December 15.

Retired: U.S. Magistrate Judge Jerome J. Niedermeier, U.S. District Court for the District of Vermont, November 30.

Senior Status: U.S. District Judge Orinda D. Evans, U.S. District Court for the Northern District of Georgia, December 31.

Deceased: U.S. Senior District Judge John T. Elfvin, U.S. District Court for the Western District of New York, January 6.

Senior Status: U.S. District Judge David A. Faber, U.S. District Court for the Southern District of West Virginia, December 31.

Deceased: U.S. Senior District Judge John E. Sprizzo, U.S. District Court for the Southern District of New York, December 16.

Senior Status: U.S. Chief District Judge Bernard A. Friedman, U.S. District Court for the Eastern District of Michigan, January 1.

Deceased: U.S. Bankruptcy Judge Robert L. Krechevsky, U.S. District Court for the District of Connecticut, November 6.

Senior Status: U.S. District Judge Hugh Lawson, U.S. District Court for the Middle District of Georgia, December 31.

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THE

THIRD BRANCH

Published monthly by the Administrative Office of the U.S. Courts Office of Public Affairs One Columbus Circle, N.E. Washington, D.C. 20544 (202) 502-2600 Visit our Internet site at www.uscourts.gov DIRECTOR James C. Duff EDITOR-IN-CHIEF David A. Sellers MANAGING EDITOR Karen E. Redmond PRODUCTION OmniStudio, Inc. CONTRIBUTOR Dick Carelli Please direct all inquiries and address changes to The Third Branch at the above address or to Karen_Redmond@ao.uscourts.gov.

JUDICIAL BOXSCORE As of February 1, 2009 Courts of Appeals

Vacancies Nominees

15 0

District Courts

Vacancies Nominees

Courts with “Judicial Emergencies”

Up-to-date information on judicial vacancies is available at http://www. uscourts.gov/judicialvac.html

44 0 20


Teaching Offenders continued from page 3 that’s a complete orientation to journaling. It also stresses conditions of supervision, as well as the relationship the offender will build with his or her supervising officer. That relationship includes motivational interviewing, a technique that gets offenders talking about themselves and questioning their thinking. Officers focus on what motivates the offender and identify areas of antisocial behavior and dysfunction. One of the district’s journaling participants recently left a voice message for a probation officer. In it, the offender—a former bank robber with a history of methamphetamine use and mental health problems— thanks his probation officer. “Before, in other probation programs, I could never have talked to them like I talk to you,” he said. “That talk yesterday brought up my self-esteem. You actually give the people on probation motivation…. Thanks a lot for the talk yesterday. I really appreciate it. It might have been meaningless to you, but it meant a lot to me.” “That’s the most important impact of what we’re doing,” said Crawford. In the Western District of Michigan, Pakiela or a fellow probation officer and a counselor meet once a week for 1.5 hours with groups of 8 to 10 offenders in an MRT program. Offenders in the program all have a Risk Prediction Indicator of between 6 and 9. “These are offenders at the highest risk for recidivism, with the least resources and limited positive support, who participated in violent crimes or had gang involvement,” said Pakiela. “Our objective is to teach them a way to make good decisions.” Selected offenders enter an MRT group where they receive materials that are heavy on pictures and verbal presentations—a good fit, according to Pakiela, for offenders who either can’t read or read at a low level. They also receive plenty of feedback on

their behavior from the group. “The groups have a unique dynamic,” said Pakiela. “They express themselves freely but they’re a supportive unit. They help each other.”

“Our objective is to teach [offenders] a way to make good decisions.” MRT trainers constantly check on the groups and facilitators, even videotaping sessions to ensure fidelity to the original training. Come September, the program’s one-year anniversary in the district, officers will go on to advanced training in MRT. The district is just starting to gather statistics on recidivism rates among MRT participants. “We’ve had revocations, but we’ve seen those ‘light bulb’ moments too,” said Pakiela. “We’re planting seeds with the hope that five years down the road, they’ll do better. MRT is a tool to help them to do that.” The District of Minnesota chose another CBT approach, a program called Thinking for a Change. “We did our research,” said Deputy Chief Probation Officer Mark Franssen. “Over 58 studies show that CBT is effective and virtually anyone can be trained in its techniques. Thinking for a Change was one of the leading programs. We liked its approach and what it can accomplish.” The district has had approximately 300 offenders in the program since June 2007, with 2 sessions per week, 1.5 hours per session. “Probation officers struggle to take all of this on,” said Randy Nikula, program development specialist for the District of Minnesota’s probation office. “After all, there are only so many hours in a day. But they believe CBT programs are an effective way to work with offenders.” Offenders

may enter a group soon after starting supervised release. “Offenders are referred to a group when substance abuse, thinking errors, or new criminal behavior occurs,” said Chief Probation Officer Kevin Lowry. “The group focuses on changes in cognitive, social, and problem-solving skills. Offenders have homework assignments to practice their social skills, or to describe their thoughts in problem situations. They use new ways of thinking to reduce the risk and improve their problem-solving skills.” For the district, the shift to group counseling is more efficient and costeffective. The district also uses two contractor facilitators for each group instead of probation officers. Quality assurance is key. As Franssen points out, if the program isn’t taught as designed, it won’t work. Supervision officers are trained in the same CBT program as contract facilitators, and monitor the groups for consistency. “Because the programs are manualized, we know what offenders are working through each week and we can follow along in the manual and help to work on core issues. This is where the officer addresses the offender’s thinking errors in the process of changing behavior,” said Franssen. “We have woven CBT into our entire supervision process, incorporating it into our treatment modalities, using it to deal with non-compliance during the course of supervision, and giving offenders the necessary skills to obtain and maintain gainful employment,” said Lowry. “We can send re-offenders back to prison, but maybe we have to go further,” said Bell. “What gave rise to the antisocial behavior? How do we get to the root of the problem? Maybe evidence-based practices, like cognitive behavior therapies, will show that prison is but one of the methods of behavioral modification for the re-offender.”

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I N T E R V I E W continued from page 1

Judge George Z. Singal (D-ME)

A:

The Committee considers all matters of human resource policy and administration, including the need for additional Article III judges and support staff. It also oversees the Judiciary Salary Plan and Court Personnel System (CPS), makes recommendations to the Judicial Conference regarding all staffing formulas, and oversees the operation of statistical systems of the courts.

Q:

Why?

The Committee formed a subcommittee on diversity.

A:

Simply expressed, diversity is inclusiveness. It is an essential characteristic for any society that is serious about making its members feel their respective interests are important and will receive fair, just, and equitable treatment. The Judiciary is, after all, the guarantor of fairness, justice, and equitable treatment. As such, it is intuitively obvious to the most casual observer that diversity becomes a crucial consideration for the Judiciary. Our citizens must see representativeness in our ranks if they are to believe we are indeed just and fair. We must provide equal opportunity for all members of our society, indiscriminate of race, gender, religion, disability, and many

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other characteristics. Diversity is a key element in how we prove to our public that we hold their interests very dear. Consequently, in December 2004, the Chair of the Committee on Judicial Resources established a subcommittee on diversity to examine the issue within the federal judicial workforce and to consider programs, policies, and training on fair employment practices that would benefit the Judiciary. Judge Ann Montgomery (D. Minn.) and Judge Xavier Rodriguez (W.D. Tex.) are co-chairs of the subcommittee.

Q:

How does the Committee plan to increase diversity in the federal Judiciary?

A:

As a way to broaden recruiting for minority employment candidates, the Committee directed the Administrative Office to create a flagship video for public viewing to increase awareness of the mission of the Judiciary, the opportunity to serve the nation through Judiciary employment, and the outstanding professional environment and development opportunities associated with Judiciary employment. The Committee also has launched efforts to increase awareness of Judiciary employment opportunities, especially clerkships, through letters to judges, law school deans, and bar association leaders. Having letters sent by local community leaders, where professional relationships and reputations already exist, should have a positive impact on minority recruiting. Finally, our Committee members serve as part of an ad hoc speakers’ bureau to advocate for improved diversity. Our members avail themselves of any opportunity to promote diversity in a public forum.

Q:

In September 2008, the Judicial Conference adopted significant changes in the pay system used for most federal Judiciary employees, based on the court compensation study. Can you tell us about the study?

A:

The court compensation study was begun by the Judicial Conference in 2005 as a cost-containment initiative. Salaries are a major part of the Judiciary’s budget and we needed to look for ways to limit the growth in future compensation costs. In September 2007, the Conference approved modernizing position benchmarks and altering the CPS salary funding and progression policy. New benchmarks were implemented on January 5, 2009. With regard to the changes to the CPS salary progression policy and funding, courts must adopt a performance management system by October 2009, but linkage to pay will not occur until October 2010. Because this is a major cultural change, the Committee and Judicial Conference believe it is prudent to allow a one-year trial period before pay linkage. Efforts continue to assist the courts with this change. In October 2008, approximately 90 percent of court unit executives attended a very successful training session which outlined their responsibilities for implementation. Train-the-trainer sessions will follow in Spring 2009 for approximately 400 court representatives. We are identifying mentor courts with performance management experience to help other courts. We also are developing a comprehensive on-line source for information and training, as well as electronic performance management tools.


I N T E R V I E W continued from page 10

Q:

There’s also an Executive Compensation Study. What is its status?

A:

The Committee received the study results in December 2008. It is a comprehensive study covering a wide range of issues relating to our executives, from pay to benefits and retirement systems. Because of the complexity of the issues, the Committee established a working group of judges and executives to provide perspective in the form of pro-and-con analysis for each recommendation. The working group’s analysis will assist the Committee in weighing the implications of the report’s recommendations. Although evaluation of the recommendations remains a Committee and Conference responsibility, the working group’s analysis will help ensure that the process is well-informed and help avoid unintended consequences. The goal is to report the working group findings to the Committee at its June 2009 meeting.

Q:

The issue of work measurement seems to attract a lot of attention. What is work measurement and why do we do this?

A:

Work measurement is the use of a collection of basic statistical techniques to tell us how many employees we need to accomplish a substantial portion of the workload of the Judiciary. We employ this statistical process for three basic reasons. • As managers and good stewards of the public’s resources, we need an empirical basis for estimating how big our staffs should be. • Congress entrusts us with several billion dollars to execute our mission to dispense justice at the federal level to the public. Congress seems to appreciate our fact-based approach to determining our requirements. • Once Congress has provided us with funding, we need an internal process

for deciding how to allocate that money. Work measurement provides a series of formulas that helps set the aggregate amount of money for our court types and also provides a mechanism for estimating the money required at each individual court.

Q:

Starting with formulas presented to the Judicial Conference in 2008, the Judiciary adopted a refined work measurement process. Why did we make the revisions?

A:

The most compelling reason to revise work measurement is the Committee’s need for more in-depth information. The previous process, which served us well for several years, focused on how an employee spent his or her 80-hour pay period. We had no insight into such important issues as uncompensated overtime or work not done. The new process moved the focus from the employee to the workload, providing much more in-depth information. We can now estimate, for example, how much time the bankruptcy clerk’s office requires for the intermediate steps of a Chapter 7 filing instead of the aggregate time to process the case. We also have solid estimates that vary dependent on whether that same Chapter 7 is an asset or no-asset case, or a pro se or non-pro se case. Previously, we had only aggregate estimates for a generic Chapter 7. The greater volume of data and subsequent information should greatly enhance our decisionmaking. Our last data collection for probation and pretrial services, for example, yielded over 10,000 data points for analysis and comparison.

Q:

How does the Committee on Judicial Resources develop its Article III judgeship recommendations to the Judicial Conference?

A:

The judgeship recommendations are the product of an extensive, multi-step analysis conducted every two years in response to requests from courts of appeals and district courts for additional Article III judges. The Subcommittee on Judicial Statistics, currently chaired by Judge Susan Illston of the U.S. District Court for the Northern District of California, manages the process. All courts that request additional judgeships provide detailed justifications for the requested judgeships. The process includes discussions with circuit chief judges, district chief judges, and the respective judicial councils. The subcommittee scrupulously analyzes the judgeship requests. In some instances, this process results in the Committee recommending fewer judgeships than requested by the courts. The Committee does not recommend judgeships for courts that do not request them. The current survey began in January 2008 and subsequent action was completed at the Committee’s December 2008 meeting. The Judicial Conference will consider the Committee’s recommendations in March 2009.

Q:

When was the last omnibus judgeship bill and what factors does the Committee consider in developing judgeship recommendations?

A:

The last omnibus judgeship bill was enacted in 1990. However, 34 district judgeships were created between 1999 and 2002 as parts of other legislation. Legislation was introduced in the 110th Congress that would have created the 67 judgeships (15 in the courts of appeals and 52 in the district courts) recommended by the Judicial Conference in March 2007. See Interview on page 12

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I N T E R V I E W continued from page 11 Unfortunately, the legislation did not move. Shortly after the March 2009 Judicial Conference, the new judgeship recommendations will be transmitted to the 111th Congress. As a standard practice, the Committee endeavors to ensure that courts are maximizing existing judicial resources before recommending additional judgeships. Caseload factors provide the primary basis for developing recommendations. These include weighted case filings per authorized judgeship; the amount of assistance provided by senior, visiting, and magistrate judges; unusual caseload complexity; temporary caseload increases or decreases; geographical characteristics of the court; and other factors that can have an impact on a court’s need for additional judicial

resources. When it is not clear that a court’s high caseload will continue, the Committee recommends temporary rather than permanent judgeships. In considering these factors, the Committee focuses on the recent caseload trends on a court-by-court basis and then makes its final recommendations. For the recommendations made in December, the Committee used statistics compiled for fiscal year 2008.

Q:

There is an increased interest in long-range planning. What is the Committee doing to address this issue? Many of the issues confronting the Committee are very complex and frequently ambiguous, seldom with

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simple solutions. We recognized a need for a strategic perspective on these difficult circumstances and the benefit of addressing them from a multi-year, long-range perspective. To emphasize the importance of the long-range planning process, the Committee conducted an outof-cycle meeting in July 2008 to specifically address the process. We sought and received input from both the Human Resources Advisory Council and the Human Resources Specialists Advisory Group prior to the July meeting. As a result, the Committee had a basis from which to identify a number of critical longrange issues that should be placed on the agenda for consideration over the next several years.

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