Issuu on Google+

THE

THIRD BRANCH Bill to Adjust Salaries of Federal Judges Introduced in Senate “For too long, judicial salaries have failed even to keep up with inflation while public and private sector salaries have surged ahead,” said Senator Patrick Leahy (D-VT) as he introduced S. 1638, the Federal Judiciary Salary Restoration Act of 2007. Leahy was joined by Senator Orrin Hatch (R-UT); Senate Majority Leader Harry Reid (D-NV); Senate Minority Leader Mitch McConnell (R-KY) and Senators Dianne Feinstein (D-CA) and Lindsey Graham (R-SC) as cosponsors of the bill. Senator Edward Kennedy (D-MA) also recently joined as a co-sponsor. “This bipartisan legislation has broad support,” Leahy said. “President Bush supports a significant pay raise for judges, as does the American Bar Association, as do the deans of 130 of the Nation’s top law schools, civil rights groups, and others.” S. 1638 would adjust the annual rate of salary of district court judges to $247,800; the salaries of courts of appeals judges to $262,700, and the salaries of Supreme Court justices and chief justice, respectively, to $304,500 and $318,200.

INSIDE

Federal judges have been denied six cost-of-living increases since 1993—increases provided for under the Ethics Reform Act of 1989. As a consequence, a district court judge on the bench since 1993 failed to receive a total of $208,500 in statutorily authorized but denied pay. Appellate court judges have lost even more. Leahy observed that in 1969 a federal district court judge earned 20 percent more than a law school dean and about 30 percent more than a senior law professor at a top law school. “By contrast, today top law school deans make twice as much as district court judges, and senior law professors at those schools make nearly 50 percent more,” Leahy said. “Many recent law school graduates will make more in their starting salary at a private law firm than we pay to an experienced district court judge.” Leahy also noted that executive branch employees have been exempt from federal salary caps and that has taken their salaries well above those of federal judges. For example, Security and Exchange Commission trial See Pay Bill on page 2

Courts Try to Maximize Jury Diversity................................... pg. 2 Drug Offenders Get Special Help........................................... pg. 6 Role Changes for Judicial Conduct Committee.................. pg. 10

Newsletter of the Federal Courts

Vol. 39 Number 7 July 2007

House Hearing Looks at Mandatory Minimum Sentencing Issues Citing cases in which first-time offenders received decades-long sentences under laws imposing mandatory penalties, a federal judge last month told a Congressional subcommittee that such sentences are inequitable and unduly harsh. “I have found the application of one particularly egregious mandatory minimum sentencing provision to result in sentences that are cruel and unusual, unwise and unjust,” Judge Paul G. Cassell (D. Utah) told the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security. He testified as chair of the Judicial Conference Committee on Criminal Law at a hearing on mandatory minimum sentencing laws. Also testifying at the hearing were Judge Ricardo H. Hinojosa (S. D. Tex.), chair of the U.S. Sentencing Commission (USSC); U.S. Attorney Richard Roper III from the Northern District of Texas; Marc Mauer, executive director of The Sentencing Project; T. J. Bonner, president of the National Border Patrol Council; and Serena Nunn, who received a 12-year sentence as a first-time offender. Hinojosa provided a statistical overview of statutory mandatory minimum sentencing, and discussed See Sentencing on page 4


Courts Try to Maximize Jury Diversity The Constitution, federal law and a series of Supreme Court rulings guarantee the right to impartial juries, selected at random from a fair cross-section of the community. Increasingly, federal trial courts are seeking to move beyond those legal imperatives and find new ways to maximize jury diversity. “Originally, an impartial jury only had to be comprised of men who owned property. We’ve come a long way. But the system, which may never be perfect, needs to reflect today’s reality,” said Judge Reginald Lindsay in the U.S. District Court for the District of Massachusetts. Lindsay led a committee of district court officials who, after a year-long study, revised the court’s jury plan earlier this year in an effort to get more racial and ethnic minorities on juries. Why was such an effort needed, and why was it deemed to be important? The answers require a look at “today’s reality.” As do all 94 federal trial courts, the District of Massachusetts has a written jury plan to assure compliance with constitutional mandates and the federal Jury Selection and Service Act, which for nearly 20 years has prohibited the exclusion from federal jury service of any person “on account of race, color, religion, sex, national origin, or economic status.” The district, however, is unique in using resident lists, the result of an annual census taken in each city and town in Massachusetts, as its source of jurors. But a study ordered in 2005 by Judge Nancy Gertner (D. Mass.) found that wealthier towns with few minority residents did a better job

2 The Third Branch

n

July 2007

of keeping accurate residency lists than more diverse communities. The result: a higher percentage of jury summonses sent to minorities came back as undeliverable or went unanswered. Under the district’s revised jury plan, a jury summons returned as undeliverable from any of the court’s three geographic divisions will spur the court to send another summons to another resident in the same zip code. Two other innovations: The list of potential jurors will be submitted to a Postal Service check for address changes twice a year instead of annually; and a brochure being developed to perhaps accompany summonses will explain the importance of jury service. “There is no perfect source of potential jurors: voter registration lists, lists of actual voters, and annual resident lists all have proven to have flaws,” the district’s jury plan committee concluded. “It is likely that any new source . . . will also have flaws. The question is what source gives us the closest approximation of the fair crosssection ideal. Answering that question remains the committee’s principal work.” Lindsay added: “The perception of fairness counts. A white jury may be fair, but a non-white defendant likely will think ‘the jurors can’t be fair because they don’t understand me.’” The U.S. District Court for the District of Kansas monitored the Massachusetts court’s efforts very closely, Chief Judge John Lungstrum said, because “a disproportionate number of bad addresses or people not responding had become a concern.” “We weren’t comfortable with the representative nature of the resulting jury pools, especially regarding racial and ethnic minorities,” Lungstrum said. The district’s amended jury plan, which took effect June 1, also calls for a “supplemental draw” in which

a summons returned as undeliverable will spark the sending out of a new summons to someone else in the same zip code. In the Fresno division of the U.S. District Court for the Eastern District of California, Judge Oliver Wanger reports that judges have focused for years on jury composition. “We’ve looked out at the panels and, candidly, we and the litigants before us did not see people who look like them. There were very few African-Americans. This is, in part, a function of the unique demographics of our division.” Under a pilot program approved by the Judicial Council of the U.S. Court of Appeals for the Ninth Circuit, federal juries in Fresno later this year will be drawn not only from voter registration lists but also from Department of Motor Vehicle records. “We hope that combination will result in more diverse jury panels,” Wanger said.

Pay Bill continued from page 1 attorneys can earn up to $180,330; an Assistant Deputy CIO at the Office of the Comptroller of the Currency up to $206,790; and an FDIC Chief Learning Officer up to $256,134. “Our democracy and the rights we enjoy depend on a strong and independent Judiciary,” Leahy said. “During the last few years it has been the courts that have acted to protect our liberties and our Constitution. The independence of the Judiciary is compromised, however, if judges leave the bench for financial reasons. The quality of the Judiciary is threatened if judges’ salaries are inadequate to attract and retain our best legal minds. Given the essential role that the Judiciary plays in our system of government, we should pass this raise to judicial salaries.”


Access to Court Information Ever Expanding Customers of the federal court’s Public Access to Court Electronic Records (PACER) system now have access, without charge, to district court written opinions. Written opinions have been defined by the Judicial Conference as “any document issued by a judge or judges of the court sitting in that capacity, that sets forth a reasoned explanation for a court’s decision.” The authoring judge determines which documents meet this definition. Only district courts using version 2.4 or higher of the Case Management/Electronic Case Files system will offer this access, but PACER customers also can access opinions via existing reports and queries, such as the docket report. Users will not be billed for accessing the written opinion document itself, but will be billed for the report or query used to identify the document.

In 2006 alone, over 200 million requests for information were processed by PACER. Users can retrieve, among other items, a listing of parties and participants in a case, a compilation of case-related information, such as cause of action, nature of suit and dollar demand, judgments or case status, and appellate court opinions. Many courts also offer imaged copies of documents. The E-Government Act of 2002 set requirements for providing public access to government information over the Internet, but even prior to the Act federal courts were building websites and the federal Judiciary was implementing the web PACER to provide access to case information. All federal circuit, district and bankruptcy courts have websites and the vast majority of those sites satisfy or exceed the requirements of the E-Government Act with information on court locations, contact and docket information, local rules, and any document filed electronically or filed on paper and later converted to electronic format. The Judiciary remains committed to providing electronic public access to court information.

Heyburn to Chair Panel

Chief Judge John G. Heyburn II (W. D. Ky.)

Chief Judge John G. Heyburn II (W.D. Ky.) became the new chairman of the Judicial Panel on Multidistrict Litigation on June 14, 2007, succeeding Judge William Terrell Hodges (M.D. Fla.). Hodges has served as chair of the Panel since December 1, 2000. Heyburn was appointed to the federal bench in 1992. He served as chair of the Judicial Conference Committee on the Budget for seven years. The Panel consists of seven sitting federal judges appointed to serve by the Chief Justice. Under 28 U.S.C. § 1407, the Panel determines whether civil actions pending in different federal

UPDATE: House Passes Judiciary Funding Bill Just before heading home on its July recess, the House passed H.R. 2829, the FY 2008 Financial Services and General Government appropriations bill. The bill retained the funding level for the Judiciary previously approved by the House Appropriations Committee. As reported last month, overall the Judiciary would receive $6.258 billion, a 4.7 percent increase over FY 2007 funding levels, with a 4.1 percent increase for the Salaries and Expenses account. The Judiciary had requested an overall 7.6 percent increase above FY 07 enacted appropriations with a 6.7 percent increase in the Salaries and Expenses account, and will seek a higher funding level from the Senate.

districts involve one or more common questions of fact, such that the actions should be transferred to one federal district for coordinated or consolidated pretrial proceedings. The Panel also selects the judge or judges assigned to conduct such proceedings. Centralization of cases is intended to avoid duplication of discovery, prevent inconsistent pretrial rulings, and conserve the resources of the parties, their counsel and the Judiciary.

3 The Third Branch

n

July 2007


Sentencing continued from page 1 the application of these provisions in the context of crack cocaine offenses. According to Hinojosa, the USSC has identified at least 171 mandatory minimum provisions currently in the federal criminal statutes. He told the subcommittee that the USSC “firmly believes that the federal sentencing guidelines system remains the best mechanism for assuring that the statutory purposes of sentencing . . . are met.” U.S. Attorney Richard B. Roper from the Northern District of Texas spoke in support of mandatory minimum sentencing statutes for the most serious of offenses. He argued that mandatory minimums increase the certainty and predictability of incarceration for certain crimes, while serving as an indispensable tool for prosecutors. However, Cassell told the subcommittee that, because of the injustices mandatory minimums produce, the Judicial Conference has consistently opposed mandatory minimum sentences for more than 50 years. “The Conference has noted that mandatory minimum terms result in harsh sentencing. Mandatory minimum sentences diminish judicial discretion, increase the number and cost of trials and appeals, and prolong the sentencing process. For these reasons, the Conference has steadfastly opposed these provisions,” he said. The sentencing provision drawing Cassell’s particular attention was a mandatory minimum statute—18 U.S.C. § 924 (c)—which requires the court to impose a sentence of five years in prison the first time a drug dealer carries a gun and 25 years for each subsequent time. Under the statute, Cassell recently was required to sentence a 24-yearold first-time offender to essentially the rest of his life in prison. The penalties in this case were, he noted, “simply irrational,” exceeding at 660

4 The Third Branch

n

July 2007

months the sentences of, for example, an aircraft hijacker (293 months), a terrorist who detonates a bomb in a public place (235 months), a seconddegree murderer (168 months), or a kidnapper (151 months). “It is hard to explain why a federal judge is required to give a longer sentence to a first offender who carried a gun to several marijuana

USSC’s Judge Ricardo Hinojosa and Criminal Law Committee chair Judge Paul G. Cassell testifiy on sentencing issues at a June, 2007, Senate hearing.

deals than to a man who murdered an elderly woman,” Cassell said. “Section 924 (c) punishes [the defendant] more harshly for crimes that threaten potential violence than for crimes that conclude in actual violence to victims . . . .” A judge can set aside the statute, Cassell told the subcommittee, “only if it is irrational punishment without any conceivable justification or is so excessive as to constitute cruel and unusual punishment in violation of the Eighth Amendment.” Indeed, the defendant argued that his sentence was irrational because the enhancement provided by § 924 (c) increased his sentence by 55 years. Were the Sentencing Guidelines alone to be applied, his sentence would be enhanced by only two years. But after careful deliberation, Cassell reluctantly concluded that he had no choice but to impose the 55year sentence. “While the sentence appeared to be cruel, unjust, and irrational,” he said, “in our system of separated power, Congress makes the

final decisions as to appropriate criminal penalties.” Under the controlling precedents in this case, he had to reject the constitutional challenges and sentence the defendant. The long sentence, Cassell explained, was the result of a construction of § 924 (c) to mean that an offender who is convicted of two or more counts is subject to an enhanced penalty for each count after the first count of conviction. Rather than interpret this provision to apply only to repeat offenders convicted of violating § 924 (c) on separate occasions after serving prison time, the statute has been read to include defendants convicted of multiple § 924 (c) counts in the same proceeding, stemming from a single indictment, with sentences to be served consecutively. “When multiple § 924 (c) counts are stacked on top of each other,” Cassell told the subcommittee, “they produce lengthy sentences that fail to distinguish between first offenders. . . and recidivist offenders.” Cassell described a case from the Ninth Circuit Court of Appeals in which the court rejected a defendant’s constitutional challenge to a sentence. The 52-year old mentally ill defendant—a first-time offender with no previous involvement with law enforcement—was involved in the planning of several robberies, and would not agree to a plea bargain. Although she never held a weapon during the robberies her boyfriend carried out, she was convicted of conspiracy, seven counts of robbery, and using a firearm in relation to a crime of violence. Because of seven stacked § 924 (c) counts, she was sentenced to slightly more than 159 years in prison. At her sentencing, the court detailed the terms of supervised release she would be required to undergo when she emerged from prison—in 2162.


OIT Head to Retire Melvin J. Bryson, Jr., Assistant Director for Information Technology at the Administrative Office, has announced he will retire at the end of September. Bryson joined OIT in 1996 as Chief of the Information Management Division and was elevated to Assistant Director in 2000. Under his guidance, the Judiciary’s national IT program has rolled out many technological advances that have significantly changed the way the courts do business. Before joining the AO, Bryson held positions at the U.S. Department of Agriculture, the Federal Trade Commission, and the Securities and Exchange Commission.

Design Guide Renovation It may be the must-read of the summer of 2007. Updated, reworked, and newly reader-friendly, it is the U.S. Courts Design Guide. OK, so you won’t see it on many beach blankets — but for those working in courthouse design and renovations, it’s the book to read. The original Design Guide was produced in 1991, and while revisions have been made continuously since, the last major overhaul was in 1997. In terms of construction and technology, that made the Guide’s standards perilously out-of-date. So what changed? “We’ve made the Design Guide easier to use and understand,” says Chief Judge Joseph F. Bataillon, chair of the Judicial Conference Committee

services for the federal courts. The ideal candidate for this position must demonstrate familiarity with, and expertise in, current and emerging technologies, particularly those used in the The Administrative Office of courts and the legal community, the United States Courts (AO) as well as experience in all aspects seeks candidates for the position of Assistant Director for Informa- of IT resource and program tion Technology, the senior execu- management. Prior Judiciary or state court experience is desirtive responsible for managing, able. The salary range is $151,084 overseeing, and supporting the to $165,200, depending on expenational information technology (IT) program for the federal Judi- rience. The position will remain open until filled, but applications ciary. The Assistant Director serves as the principal IT advisor received by August 13, 2007, will for the Director of the AO and the receive immediate consideration. Judicial Conference of the United The complete job announcement is online at www.uscourts. States, provides leadership and gov/employment.html (click on vision for the Judiciary’s IT program, and oversees the Office “Employment Opportunities in of Information Technology in the the Federal Judiciary” and search by job title) or can be obtained by development, delivery/deploycalling the AO Personnel Division ment, security, and manageat 202-502-3800. ment of national IT systems and

Administrative Office of the U.S. Courts

Assistant Director for Information Technology

on Space and Facilities. “Architects and engineers have complained that the way the old Guide was structured and amended made it difficult to use. For example, if you wanted to know about standards for HVAC or lighting, you had to look in half a dozen different sections. Even the General Services Administration was having trouble.” The new Design Guide has added chapters to orient judges and unit executives who may never previously have worked on a construction project. But if you only read it for the organizational changes, you’d be missing the point. The new Guide reflects the Judiciary’s hard-eyed look at controlling costs and examining existing space standards. “We needed to be sure our space requirements reflect changes in the way the Judiciary does business,” said Batallion. “We looked at everything—chambers, courtrooms,

libraries, staff offices, even public spaces.” Recommendations for cutting construction costs came from the people who knew best—GSA architects, judges, circuit executives, appellate, district and bankruptcy court clerks, probation and pretrial services officers, staff attorneys, circuit librarians, federal public defenders, and project managers. Everyone brought something to the table. For example, all judges chambers conference rooms were downsized for consistency. All judges’ chambers will now have standardized layouts in each new courthouse. Circuit executives and librarians downsized their office and library square footage. With more cases being filed electronically, clerks of court reduced filing space and public intake areas to make room for additional computers and See Design Guide on page 6 The Third Branch

n

July 2007

5


Federal Offenders with Drug Problems Get Special Help

6

Angel, a heroin addict for 30 of his 53 years, had been in and out of federal prison. Given supervised release again in early 2006, he knew the odds were against him. He voluntarily entered the Court Assisted Recovery Effort (C.A.R.E.) offered to offenders at high risk of recidivism by the District of Massachusetts but relapsed a week into the program, testing positive for cocaine. Magistrate Judge Leo Sorokin (D. Mass.) sent him to jail for a day and then to an in-patient treatment program. The program was chosen specifically for Angel after two treatment specialists, a probation officer, a prosecutor and his defense attorney reviewed Angel’s case with Sorokin. “It was quite remarkable. After that day, Angel had a complete turnaround. He took responsibility for his own recovery; he changed his life,” Sorokin said. “He never again

tested positive, and he attended all his treatment sessions, faithfully complied with his supervision conditions, and appeared for all the many C.A.R.E. court appearances.” Despite the shaky start, Angel graduated C.A.R.E. 53 weeks later— May 9, 2007—and now works in substance abuse outreach, training to be a drug and alcohol counselor. “For many of the offenders with substance abuse issues, the traditional forms of supervision combined with treatment works. But for 10 to 20 percent of those offenders, like Angel, the traditional approaches have proved unsuccessful,” said Jonathan Hurtig, a supervising U.S. probation officer in Boston. “C.A.R.E. is our attempt to address the challenges of the 10 to 20 percent,” he said. “It’s our hope that effective supervision, treatment and the group dynamic, combined with timely judicial intervention, will increase the likelihood for success. The role played by judges is an essential element.” Timely and constant participation by judges is the key as well to similar post-conviction programs

with different names in the Western District of Michigan and the District of Oregon. In each, judges join with probation officers, federal defenders, and U.S. prosecutors in efforts to improve high-risk offenders’ chances of success. And the fruits of success? Offenders who complete each program may be rewarded with up to a year’s reduction in their term of supervised release. The Western District of Michigan began its program in Berrien County two years ago, targeting any offender who presents a high risk of recidivism. Most have substance-abuse addictions. The first year of the two-year program involves intensive supervision, with each participant’s progress monitored at monthly court hearings. For that year, each participant is required to attend drug or alcohol counseling, seek or keep a job, and obey the law. “It’s very gratifying to see participants meeting their goals each month,” said Sharon Turek, an assistant federal public defender

Design Guide continued from page 5 records examination space. All of which saves money. “One of the big considerations is design excellence,” said Bataillon. “Understandably, because a federal courthouse should be a concrete and mortar symbol of American justice in the community. And their recommendations on the size of atriums and courtyards and other public spaces in the courthouse reflect those considerations. We worked with them to change criteria on the relative size of public versus private space. We still have impressive public space, but now it cannot exceed efficiency.” GSA also helped the Committee revamp the recommendations on courthouse interiors from wall finishes to floors. “Now once a design

aesthetic is selected for courthouse interiors, it becomes the building standard and that level of finish is maintained for the lifetime of the courthouse,” said Bataillon. “This not only saves money, it maintains the integrity of the original design.” Criteria for acoustics and lighting were revamped. Former Design Guide performance level criteria on acoustics had proven too high, and these were assessed downward without any negative impact. Standards for lighting were refined to take a more practical consideration of reflective courtroom surfaces, sightlines, and task lighting. GSA donated space for the AO to construct mock-ups of courtrooms to test updated recommendations on ease of access by people with disabili-

ties, with the assistance of the Courthouse Access Advisory Committee of the U.S. Access Board. What’s next on the list for revision? Bataillon says the Committee will look at standards for repairs and alterations. “We have many courthouses built to the standards of the 1991 and 1997 Design Guides,” he said. “The question will be, must renovations to a single floor meet 2007 guidelines, the 1997, or the pre-1991 standards of the rest of the courthouse.” The new Design Guide is currently in production and will be available soon. Contact Kathleen Desmond at kathleen_desmond@ ao.uscourts.gov for more information.

The Third Branch

n

July 2007

See Federal Offenders on page 9


Limited English Proficiency No Bar to Understanding Courts Federal courts will have additional tools as they reach out to an increasing segment of the U.S. population with limited English proficiency. A repository of court forms already translated into Spanish or Portuguese is now accessible for court use on the Judiciary’s intranet and a translation project eventually will provide model forms in Spanish for use by courts nationwide. According to 2000 Census Bureau statistics, there are over 37 million people in the United States over the age of 18 who speak a language other than English—21 million of whom are Spanish speaking. Of those Spanish-speaking people, about 6.9 million speak English poorly or not at all. “The federal courts are well aware that some litigants and defendants may have Limited English Proficiency (LEP),” said Judge John R. Tunheim (D. Minn.), chair of the Judicial Conference Committee on Court Administration and Case Management (CACM). “In order to help them understand and have better access to the courts, some courts have translated court information and various forms and have made them available either at the courthouse or on their websites.” For example, the District of New Mexico has translated into Spanish information on the federal judicial system, frequently asked questions, and a glossary of terms used in federal courts. Among other forms, the Eastern and Western Districts of Arkansas have the case data form and general case/office information available in Spanish. The Southern

District of New York has translated into Spanish the Miranda Warning, along with forms on drug testing notification, electronic monitoring instructions and home confinement, and conditions of probation. The District of Nebraska has the consulate notice form available in Spanish, in addition to the notice of right to appeal and the petition to enter a plea of guilty.

Generally, the translated forms present information in both English and Spanish. For example, the District of Puerto Rico, in its motion to proceed in forma pauperis, follows an English paragraph with its Spanish translation, paragraph by paragraph. Because courts have acted independently to translate court forms and information, few are aware of the universe of translated forms—a current total of approximately 50 different forms. At the request of CACM, translated federal court forms were gathered together and are now available on the Judiciary’s intranet for court use. The Judicial Conference Committee on International Judicial Relations also has encouraged the posting of several translated versions of educational documents, such as The Federal Court System in the United States, on the Judiciary’s internet

website at www.uscourts.gov/ library/publications.html. CACM now has turned its attention to developing models for forms in Spanish. There are advantages to developing national uniform translations. Forms may vary from court to court according to a translator’s skills, and some automated translation sites provide very literal and incorrect translation of legal terms. Model forms would ensure an overall level of quality control and accuracy. The Administrative Office has begun to identify court interpreters who could assist in planning, and a CACM subcommittee, chaired by Judge Paul D. Borman (E.D. Mich.), has been created to oversee the translation process. Although the skill sets for interpreting speech and translating text are not the same, some certified Spanish court interpreters have experience with the translation of documents and some are certified by the American Translators Association. “We continue to receive input from the courts on what they’d like to see translated,” said Tunheim. “The AO also has received input from federal defenders and Criminal Justice Act panel attorneys.” Federal courts do not accept filings in languages other than English. However, judges and court staff are eager to assist individuals with limited English proficiency in their understanding of the legal process. “The judge has the responsibility to ensure that a defendant understands the proceedings,” said Tunheim. “When a person’s liberty and property are at stake, it is important they know what is going on.”

7 The Third Branch

n

July 2007


THE

JUDICIAL MILESTONES

Appointed: Veronica L. Duffy, parttime U.S. Magistrate Judge, U.S. District Court for the District of South Dakota, June 11.

Senior Status: U.S. Court of Appeals Judge Harold R. DeMoss, Jr., U.S. Court of Appeals for the Fifth Circuit, July 1.

Elevated: U.S. District Judge Gregory M. Sleet, to Chief Judge, U.S. District Court for the District of Delaware, succeeding U.S. District Judge Sue L. Robinson, July 1.

Senior Status: U.S. Court of Appeals Judge William W. Wilkins, U.S. Court of Appeals for the Fourth Circuit, July 1.

Elevated: U.S. District Judge Garland E. Burrell, Jr., to Chief Judge, U.S. District Court for the Eastern District of California, succeeding U.S. District Judge David F. Levi, July 1. Elevated: U.S. District Judge Federico A. Moreno, to Chief Judge, U.S. District Court for the Southern District of Florida, succeeding U.S. District Judge William J. Zloch, July 2. Elevated: U.S. Bankruptcy Judge Wesley Wilson Steen, to Chief Judge, U.S. Bankruptcy Court for the Southern District of Texas, succeeding U.S. Bankruptcy Judge Karen Kennedy Brown, June 1. Elevated: U.S. Bankruptcy Judge Randy Davis Doub, to Chief Judge, U.S. Bankruptcy Court for the Eastern District of North Carolina, succeeding U.S. Bankruptcy Judge A. Thomas Small, July 29.

Senior Status: U.S. District Judge Charles L. Brieant, Jr., U.S. District Court for the Southern District of New York, May 31. Senior Status: U.S. District Judge Rudy Lozano, U.S. District Court for the Northern District of Indiana, July 10. Resigned: Chief Judge David F. Levi, U.S. District Court for the Eastern District of California, June 30. Deceased: U.S. Magistrate Judge Michael W. Leavitt, U.S. District Court for the Eastern District of Washington, June 17.

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 http://www.uscourts.gov. DIRECTOR James C. Duff EDITOR-IN-CHIEF David A. Sellers MANAGING EDITOR Karen E. Redmond CONTRIBUTOR Dick Carelli PRODUCTION Linda Stanton 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 July 1, 2007 Courts of Appeals Vacancies Nominees

13 5

District Courts Vacancies Nominees

38 23

Courts with “Judicial Emergencies” 18

For more information on vacancies in the federal Judiciary, visit our website at www.uscourts.gov under Newsroom.

8 The Third Branch

n

July 2007


Federal Offenders continued from page 6 in Grand Rapids. “They not only want to succeed, but perhaps for the first time they believe that they can succeed.” The program was extended to a second community earlier this year. Chief Probation Officer Eric Suing believes the District of Oregon’s program that began in 2005 “has greatly enhanced offender accountability, resulting in the individual remaining drug free, maintaining stable employment and residence, and making regular payments on restitution.” He said up to 35 offenders in the program (the district has about 1,000 people under supervised release at any given time) “make a huge commitment—opening themselves to more testing, monthly court appearances, and swift sanctions when needed from Judges James Redden (D. Or.) in Portland and Ann Aiken (D. Or.) in Eugene.” Suing praised the district’s Federal Public Defender’s Office and U.S. Attorney’s Office for their roles in what he described as a full partnership. “It’s the only way this program works,” he said. In Massachusetts, Magistrate Judge Sorokin meets with each program participant 26 times a year. Every Wednesday, Sorokin first meets in his chambers with C.A.R.E. team members—a probation officer, federal defender, prosecutor and two substance-abuse treatment professionals. Discussions focus on what progress and problems each offender has reported. Then it is time for a court hearing, with offenders sitting in the jury box. One by one, the offenders approach the bench to report to Sorokin on their activities. Offenders meet with him once a week while in the program’s first phase; twice a month in the second phase; then every third week; and finally once a month. “Those who have made progress are rewarded, with positive encour-

agement or by promotion from one phase to the next, which means fewer court appointments and less reporting to their probation officer,” Sorokin said. “If they’ve failed to comply—tested positive for drugs or failed either to attend treatment or to maintain employment—then a sanction will be handed out. The most common sanction for a positive drug test is a day or two in jail.” “The goal is to help the participant lead a sober, employed and law-abiding life. They earn their successes, and they earn their consequences. The sanctions are smaller, but more timely, than for defendants on regular supervision,” Sorokin said. Officials are encouraged when they compare the performance of program participants with similarly situated offenders who were used as a control group for statistical analysis. “Program participants were far more law abiding, far more employed, and had a longer period of sobriety than the control group,” Hurtig said. In what is believed to be a one-ofits-kind program, the Central District of Illinois offers a relative few defendants with substantiated drug-abuse problems a pretrial opportunity to turn their lives around. “What we have is an alternative-to-detention program,” said Darrell Hite, a probation officer in Peoria. While awaiting trial, defendants who accept federal prosecutors’ invitations to participate in the program meet every other Thursday with Magistrate Judge John A. Gorman (C. D. Ill.), after the judge has been briefed by Hite and team members from the U.S. Attorney’s Office, a substance abuse counselor and defense counsel. The program has no set duration, but most graduates participated from 10 to 18 months. “Since its start in 2002, the program has had 33 participants, and the results have been dramatic,” Hite said. “Only one graduate of the program

committed a new crime, and only one other lapsed into drug use. We are changing people’s lives.” Valerie Martin, chief probation officer in the District of Western Michigan, said post-conviction and pretrial programs represent a different strategy. “It would be foolish to expect a higher success rate among the high-risk population without doing something different,” she said. “A significant aspect of the program is involvement of the offender’s family, counselor, employer, and other community supports. Through the program, offenders expand their support system that will encourage lawabiding behavior long after a term of supervision has ended,” she said. “The road to abstinence and significant life change is full of obstacles for offenders. It is hard enough to do it with support; many have been trying, and failing, to do so without support. This type of program provides a more realistic opportunity for success,” Martin said. Her district’s Chief Judge Robert Holmes Bell, added: “I’m trying to be as encouraging as I can . . . to make this a success so that not only can we replicate it but we can hopefully reincorporate some of the resources we have in this direction and demonstrate to the public that there is a real payback.” Other districts are taking note. Melissa Cahill, a probation officer in the Eastern District of Missouri, said her office plans to seek the district judges’ approval of a pilot program this fall. “Evidence-based programs—those programs that have proved successful—are very appealing,” she said. “It looks like the increased contact with a judge and a team consisting of probation officers, prosecutors and defenders will help an offender maintain sobriety and compliance with the conditions of supervision.”

9 The Third Branch

n

July 2007


I N T E R V I E W

Role Changes For Judicial Conduct Committee Judge Ralph K. Winter was appointed to the U.S. Court of Appeals for the Second Circuit in 1981 and served as chief judge from 1997 to 2000. He also has served as a member of the Executive Committee of the Judicial Conference, and as the Committee’s chair from 1999 until he assumed senior status in September, 2000. Winter has chaired the Judicial Conference Committee on Judicial Conduct and Disability since October 2004.

Q:

Has the function of your Committee changed in light of the report of the Judicial Conduct and Disability Act Study Committee, the so-called Breyer Committee Report?

A:

Yes. Before the Breyer Committee issued its report, the function of the Committee on Judicial Conduct and Disability was in the main limited to deciding petitions for review of judicial council actions taken under the Judicial Conduct and Disability Act of 1980. There was no systematic effort by the Conduct Committee to collect information regarding implementation of the Act by chief circuit judges and judicial councils or to guide them in interpreting the Act. Indeed, the Breyer Committee Report accurately referred to the Conduct Committee as the “Review Committee.” The Breyer Committee recommended that the Conduct Committee become more active in a number of areas, including the provision of advice to chief circuit judges and judicial councils with regard to issues arising under the Act, periodic monitoring of the administration of the Act, and the creation and maintenance of resources such as educational programs and a compendium of precedents to aid those implementing the Act.

10 The Third Branch

n

July 2007

As a result, the Conduct Committee has begun to meet more often and to address numerous policy issues arising from both the Act and the Breyer Committee’s report and recommendations.

Q:

The Judicial Conference asked your Committee to consider and make recommendations as to implementation of the reforms suggested by the Breyer Committee. How has your Committee proceeded with this directive?

A:

The Conduct Committee has taken steps to implement various recommendations in the areas mentioned in the answer to your first question. In particular, the Conduct Committee concluded that achievement of the Breyer Committee’s reform goals required the drafting and promulgation by the Judicial Conference of rules governing proceedings undertaken pursuant to the Act. The Breyer Committee noted complaints from chief circuit judges that in many critical areas the Act provided little guidance as to the disposition of complaints filed under the Act and as to when chief circuit judges were themselves required to initiate complaints. Indeed, the Breyer Committee itself found it necessary to formulate substantive guidelines, found in Appendix E to its Report, in order to assess the Act’s implementation in the quarter century since its passage. Also, issues had arisen as to the scope of the Judicial Conference’s—and the Conduct Committee’s—jurisdiction over matters in which chief circuit judges had not appointed special investigating committees and even over the authority of the Judicial Conference to review decisions by

Judge Ralph K. Winter (2nd. Cir.)

the review committee. Finally, monitoring administration of the Act was difficult because of the lack of information regarding the filing of complaints and the disposition of them. The existence of these issues lead the committee to conclude, as I noted above, that a need existed for a set of mandatory and clarifying rules establishing jurisdiction over and venue for complaints and petitions for review, substantive standards to guide decisions on the merits of complaints, standards for chief circuit judges to initiate complaints, responsibility for credibility decisions, information sharing provisions, and procedural rules for proceedings under the Act.

Q:

Is there a timeline for implementation of the Breyer Committee’s recommendations?

A:

Most of the recommendations of the Breyer Committee have either been implemented, are in the final stages of implementation, or will be implemented upon promulgation of the rules previously described. A draft of those rules is presently the subject of a 90day public comment period, with a public hearing to be held in New


York City on September 27, 2007. After the public comment period, another draft of the rules will be sent to the Judicial Conference with a recommendation for promulgation at its March, 2008 meeting. Informational and educational programs for judges and staff regarding the rules will be established after their promulgation.

Q:

Many people familiar with the Act’s complaint procedure believe that it has lead to a vast number of complaints by litigants—mostly pro se litigants—who are simply dissatisfied with the merits of decisions rendered against them. Others, however, believe that instances of misconduct not involving the merits of decisions or disability have gone unremedied. Do these views reflect a fundamentally flawed system?

A:

No. It is simply a matter of fact that hundreds of misconduct or disability complaints are filed every year that do not on their face allege cognizable misconduct or the existence of a disability. Of these, many assert as their sole complaint error in a judicial decision, a matter expressly excluded from the Act’s purview. Federal judges render thousands of decisions every year in which roughly 50 percent of litigants go away deeply disappointed. Any misconduct or disability procedure will inevitably invite a large number of complaints reflecting those disappointments, which will often manifest themselves as suspicions or accusations of corruption or disability. And any such procedure will also produce an irreducible number of controversial decisions even where procedural regularity has been observed and correct standards have been applied. In my view, therefore, the existence of a large number of meritless complaints, and some controversial

decisions are unavoidable and not evidence of a fundamentally flawed system. However, the Breyer Committee did find that a relatively small number of complaints with arguable merit have been resolved in a way that the Breyer Committee deemed to be “problematic.” Some of those cases were the result of a misunderstanding of the Act’s provisions. Others were good faith decisions where the merits were reasonably in dispute. It is the Conduct Committee’s hope that the new rules will eliminate cases of misunderstanding and reduce the number of “problematic” decisions to a small category of cases in which reasonable people may disagree. It is, of course, not possible to eliminate all cases in which a reasonable disagreement might exist. However, we must be vigilant as to the observance of procedural regularity and the use of correct standards if we are to maintain public confidence in the system.

Q:

The duty to apply the Act’s provisions falls on chief circuit judges and judicial councils. To what extent will the rules help them in this responsibility?

A:

I am very hopeful that the rules will provide much needed clarification and direction to chief circuit judges and judicial councils in carrying out their responsibilities under the Act. However, clarification and direction are helpful but not self-executing. The Act establishes a self-regulatory system that is essential to the maintenance of judicial independence. But, by its very nature, a self-regulatory system imposes great responsibilities on the persons within the system who must enforce the regulations—in this case, chief circuit judges and judicial councils. No amount of clarification can relieve them from occasionally having to take very awkward

and personally disagreeable actions in the course of carrying out those responsibilities. Indeed, based on the Breyer Committee’s findings, the new rules should in all probability result in a slightly more frequent appointment of special committees and initiation of complaints by chief circuit judges. But, to repeat, such actions are necessary to the maintenance of judicial independence, which the Act furthers by leaving resolution of misconduct and disability issues raised in the case of individual judges to the Judiciary itself.

Q:

You have been the chief judge of a circuit, chair of the Executive Committee of the Judicial Conference, and a federal judge for over 25 years. In your view, what is the public perception of the federal Judiciary and has it changed over the years you have been on the bench?

A:

I think that the public perception of the federal Judiciary has been, and remains, quite favorable, although complacency is hardly justified. There is evidence of public dissatisfaction with the courts in a number of legislative actions over the past quarter century that have purposefully reduced the power of federal courts in various areas. Among these areas have been (most notably) criminal sentencing, speedy trials, the circumstances in which the writ of habeas corpus may be granted, administrative actions in immigration proceedings, and prison reform. Other attempts to limit judicial power have drawn significant support but failed to pass. Notable among these was the original version of the Civil Justice Reform Act. In addition, private parties appear to have increasingly left their business disputes to arbitration, removing from the courts a substantial amount See Interview on page 12

11 The Third Branch

n

July 2007


Bankruptcy Filings Inch Up in Quarter Bankruptcy filings in the federal courts for the 3-month period of January 1, 2007-March 31, 2007 were the highest of any quarter in the 12-month period ending March 31, 2007, totaling 193,641. This was a 66 percent increase when compared to the 116,771 filings in the 3-month period ending March 31, 2006. In the 12-month period ending March 31, 2007, 695,575 bankruptcy cases were filed in federal courts. This was a 61 percent drop in filings compared to filings in the 12-month period ending March 31, 2006, when bankruptcy cases totaled 1,794,795.

THE THIRD BRANCH Administrative Office of the U.S. Courts Office of Public Affairs One Columbus Circle, N.E. Washington, D.C. 20544

Interview continued from page 11 of commercial litigation that was once at the heart of judicial business. As I said, these actions evidence some continuing measure of discomfort with the areas of discretion left to judges. To some extent, this discomfort has driven the concern over misconduct and disability proceedings and, to some extent, the “problematic� decisions in such proceedings found by the Breyer Committee has generated the discomfort. It is to be hoped that the draft rules described previously will lessen the mutual reinforcement of that discomfort. To view and comment on the draft Rules Governing Judicial Conduct and Disability Proceedings, visit http://www. uscourts.gov/library/judicialmisconduct/commentonrules.html.

FIRST CLASS MAIL POSTAGE & FEES

PAID

U.S. COURTS

PERMIT NO. G-18 OFFICIAL BUSINESS PENALTY FOR PRIVATE USE $300

U.S. Government Printing Office 2007-331-009-60014

FIRST CLASS


2007-07 Jul