THE
THIRD BRANCH IN-DEPTH
Cost Containment and the Federal Judiciary In April 2004, it was estimated that within five years the federal Judiciary’s operating requirements—the money needed to pay staff, juror’s fees, courthouse rent, phone billsand all the other expenditures that keep the courts running—would exceed the funding provided by Congress by close to $850 million. In fact, such a deficit would threaten thousands of court jobs. Instead, the federal Judiciary regards its future with cautious optimism, largely because of an aggressive cost-containment program begun three years ago, along with an equally aggressive outreach program to Congress. Thanks to the Judiciarywide cost-containment initiative, it is estimated that hundreds of millions of dollars in costs will be saved or avoided over the next decade.
INSIDE
It was a much different story in 2004. All of government faced a stringent budget environment. For the Judiciary, funding increases from Congress had shrunk below the level needed to continue the courts’ business as usual. Meanwhile, the Judiciary’s costs were rising for rent, personnel, and drug-testing and treatment programs, as the court system absorbed record numbers of criminal defendants, appeals, civil, and probation and pretrial services caseloads, and a near-record caseload in the bankruptcy system. “You couldn’t look at those trends without realizing they were very adverse,” says Judge Carolyn Dineen King, who chaired the Judicial Conference Executive Committee from 2002 to 2005. “The federal See Cost Containment on page 3
Surge of Cases May Swamp Federal Circuit......................... pg. 7 Pretrial Services Act Turns 25................................................. pg. 10 Election Season & Political Prohibitions..............................pg. 11
Newsletter of the Federal Courts
Vol. 39 Number 10 October 2007
Judicial Conference Opposes Use of Cameras in Federal Trial Courts Citing the Judiciary view that camera coverage can undermine the fundamental right of citizens to a fair and impartial trial, a representative of the Judicial Conference testified last month against H.R. 2128, the Sunshine in the Courtroom Act of 2007. The bill was the topic of a House Judiciary Committee hearing at which Judge John R. Tunheim (D. Minn.), the chair of the Judicial Conference Committee on Court
See Cameras on page 2
Fiscal Year 2008 Opens with CR Fiscal year 2008 began on October 1, 2007, but the government is still spending at fiscal year 2007 levels. That’s because none of the FY 2008 appropriations bills have made it to the President’s desk for approval. A continuing resolution will keep the federal government funded and functioning until November 16, 2007. The House passed the FY 2008 Financial Services and General See 2008 CR on page 9
Cameras continued from page 1 Administration and Case Management, testified. “The Judicial Conference strongly opposes H.R. 2128 to the extent that it allows the use of cameras in the federal trial courts,” he told the Committee. “The Conference also opposes the bill’s provisions allowing the use of cameras by any panel in all courts of appeals, rather than allowing that decision to be made by each court of appeals as a whole, which is the present practice.” Also testifying at the hearing were Judge Nancy Gertner (D. Mass.); Representative Ted Poe (R-TX); U.S. Attorney John Richter from the Western District of Oklahoma; Susan Swain, President of CSPAN; Barbara Cochran, President of the Radio-Television News Directors Association, and Court TV anchor Fred Graham. Of the panel participants, only Tunheim and Richter pointed out the pitfalls of camera coverage. U.S. Attorney Richter testified on behalf of the Department of Justice. In DOJ’s view of H.R. 2128, “the potential harm to fair trials and the cause of justice are many, are likely, and would be severe. In contrast, the benefits, if any, would be small.” Electronic media coverage of criminal proceedings in federal courts has been expressly prohibited under Federal Rule of Criminal Procedure 53 since the criminal rules were adopted in 1946. In 1972, the Judicial Conference adopted a prohibition against “broadcasting, televising, recording or taking photographs in the courtroom and areas immediately adjacent thereto,” a prohibition applying to criminal and civil cases. The Judicial Conference began a three-year pilot program in 1991, allowing electronic media coverage of civil proceedings in six district and two appellate courts. The Conference subsequently concluded that cameras had a potentially
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On behalf of the Judicial Conference, Judge John R. Tunheim (D. Minn.) told the House Judiciary Committee that camera coverage could impair a citizen’s ability to receive a fair trial. Also testifying at the hearing were (photo center) Judge Nancy Gertner (D. Mass.) and U.S. Attorney John Richter from the Western District of Oklahoma (photo right). Tunheim chairs the Judicial Conference Committee on Court Administration and Case Management.
intimidating effect on some witnesses and jurors and that it was not in the interest of justice to permit cameras in federal trial courts. “The Conference is convinced that camera coverage could, in certain cases, so indelibly affect the dynamics of the trial process that it would impair a citizen’s ability to receive a fair trial,” Tunheim said. “Since a United States judge’s paramount responsibility is to seek to ensure that all citizens enjoy a fair and impartial trial, and since cameras may compromise that right, allowing cameras would not be in the interest of justice.” In 1996, the Judicial Conference made a distinction between camera coverage for appellate and district court proceedings. “Because an appellate proceeding does not involve witnesses and juries, the concerns of the Conference regarding the impact of camera coverage on the litigation process were reduced,” Tunheim said. The Conference agreed to authorize each court of appeals to decide whether
or not coverage would be permitted. The Second and Ninth Circuits presently permit camera coverage in appellate proceedings. “This is not a debate about whether judges would have personal concerns regarding camera coverage,” Tunheim explained. “Nor is it a debate about whether the federal courts are afraid of public scrutiny or about increasing the educational opportunities for the public to learn about the federal courts or the litigation process. Open hearings are a hallmark of the Federal Judiciary. “Rather, this is a decision about how individual Americans —whether they are plaintiffs, defendants, witnesses, or jurors—are treated by the federal judicial process. It is the fundamental duty of the Federal Judiciary to ensure that every citizen receives his or her constitutionally guaranteed right to a fair trial . . . . [T]he Judicial Conference believes that the use of cameras in the trial courtroom could seriously jeopardize that right.”
Cost Containment continued from page 1
Space and Facilities Cost Control
budget deficit was soaring. It seemed that we were in a position that was just untenable. We had to get a grip on our costs so that we could have a better shot at living within our appropriation.” In 2004, the Judicial Conference did just that. It approved a comprehensive strategy for controlling costs in the Judiciary. The Cost-Containment Strategy for the Federal Judiciary: 2005 and Beyond was developed by the Executive Committee with input from other Conference committees and from judges and managers across the Judiciary. “Cost containment is about restraining our costs, restraining our growth, so that our requirements and our appropriations will more closely approximate each other,” explained Budget Committee Chair Judge Julia Gibbons. “Each of the Judicial Conference committees with spending authority scrutinized various policies, practices and customs within their jurisdiction,” she said. “They developed a working list of areas in which savings might be possible.” Here’s how the Judiciary refocused its future.
At the time, the Judiciary annually paid the General Services Administration (GSA) about $900 million in rent for court facilities, which represented 22 percent of the Judiciary’s budget. GSA rent charges increased each year for existing facilities. Between rising rent bills and new space, it was anticipated that rent would increase about 6 to 8 percent a year. To help reduce the rate of growth in rental expenses, in September 2004, the Judicial Conference agreed to delay 42 courthouse projects on the Conference’s five-year courthouse project plan for 24 months, giving the Judiciary time to re-evaluate whether courts could satisfy their additional space needs at lower costs. “It was a drastic measure,” said Chief Judge Joseph F. Bataillon (D. Neb.), chair of the Committee on Space and Facilities. “We had to make a choice between having enough people to do the work and having facilities. The consensus was it was more important to maintain our staff. The moratorium effectively contained costs and slowed down the rate of growth for future years. It also helped us renegotiate a number
In annual appropriations hearings before Congress, (photo left to right) Administrative Office Director James C. Duff and Judge Julia Gibbons, chair of the Judicial Conference Budget Committee, have explained not only the Judiciary’s financial needs, but also its cost-containment efforts.
Chief Judge Joseph F. Bataillon (D. Neb.)
of issues with GSA that have been financially beneficial for us.” Rent validation was one of those issues. Rent bills across the country were re-evaluated following the discovery of serious rent overcharges to the Judiciary in the Northern and Southern Districts of New York. “The courts in New York deserve a lot of credit for getting the ball rolling in this regard,” said Bataillon. Under the initiative, space assignment drawings were compared to courtoccupied space in all federal buildings and rental rates were examined to ensure that the Judiciary was charged for space the courts legitimately occupied. In total, these initiatives resulted in almost $52.5 million in credit and cost avoidance savings for the Judiciary. The Conference also acted to control rent growth. In September 2006, it set an annual cap for all future rent requirements at an average annual growth rate of 4.9 percent for fiscal years 2009 through 2016. At its September 2007 session, the Judicial Conference endorsed the circuit-level rent budget allotment program in order to stay within the 4.9 percent cap on rent. Under this program, circuit judicial councils will receive an annual rent budget that will cover current space, project-speSee Cost Containment on page 4
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Cost Containment continued from page 3
cific funding for new courthouses, and a discretionary allotment to pay for their expansion space actions and space alteration projects, which enable more efficient use of space. All new courthouses or annexes, buildto-suit lease projects, requests for GSA feasibility studies, and prospectus-level repair and alterations projects must still be approved by the Committee on Space and Facilities and the Judicial Conference. “This is a sea change from how we’ve done business in the past,” said Bataillon. “We’re giving the circuit judicial councils more fiscal responsibility for the rent in their circuits. Now it will be incumbent upon the circuit councils to make sure they spend their dollars as wisely as possible.” In addition, a major overhaul of the U.S. Courts Design Guide was recently completed with reductions in space requirements for judges’ chambers and staff. A courtroom utilization study is underway. The need for additional courtrooms is a primary factor in determining a need for additional facilities. Thanks to these initiatives, the rate of growth in the Judiciary’s rental payments has slowed in comparison to pre-cost-containment projects. In 2004, the total cost of rent was estimated to rise 37 percent to $1.2 billion by 2009. Because of costcontrol actions, in January 2007 the projected rent expense for 2009 fell by 13 percent from the original estimate to $1.09 billion.
Judiciary Personnel Costs Current workload projections, staffing formulas, and compensation policies call for a growth of almost $1.4 billion in court support staff costs above current levels by fiscal year 2017. Long-range budget projections will not support this level of funding. Reducing the rate of growth in the number of staff is one way to
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help define future staffing requirements. In addition, the Criminal Law Committee proposed and the Conference approved modifications to work requirements of probation and pretrial services offices. These changes reduced staffing needs.
Effective Use of Technology
Judge W. Royal Furgeson (W.D. Tex.)
reduce those costs, but another option is to reduce the growth in compensation. At its September 2007 meeting, the Judicial Conference approved recommendations for a major court job classification and compensation study, which will affect staff positions nationwide. The Conference also voted to give local courts greater autonomy in managing and paying their personnel, to limit the number of career law clerks—who are typically paid more than term law clerks—and to modernize its Court Personnel System benchmarks, which will affect the classification and grading of staff positions nationwide. The approved measures may save up to $300 million from FY 2009 through FY 2017. “What we’re doing,” said Judge W. Royal Furgeson (W.D. Tex.), who chaired the Judicial Resources Committee until October 1, 2007, “will not necessarily take one employee off the rolls. What it will do is constrain the growth of salaries in our system and arrest some of the trends that have had us spending more money toward the top range of our salary structure.” The Judicial Resources Committee has endorsed a comprehensive and rigorous work-measurement process to update court unit staffing formulas. The resulting formulas will
“We are not spending money on gadgets,” said Judge Thomas I. Vanaskie (M.D. Pa.), chair of the Judicial Conference Information Technology Committee, “we’re spending money on technology that makes us more productive.” Containing information technology costs while still pursuing useful advancements is the challenge. The key is to invest funds for infrastructure, applications and devices that will deliver these benefits. The Judicial Conference has linked investments in information technology to service improvements and efficiency savings. For example, the Conference endorsed the rapid implementation of the Case Management/Electronic Case Files system, which has made staffing efficiencies possible and even affected the size of clerk intake areas and records storage.
Judge Thomas I. Vanaskie (M.D. Pa.)
Putting the Strategy Together In FY 2004, the Judiciary’s final appropriations were insufficient to support onboard court staff, and the courts subsequently suffered reductions in personnel nationwide. Obviously, policy and operational changes would be needed for the Judiciary to maintain staffing and live within its budget in the future. As a member of the Judicial Conference’s Budget Committee for more than a decade and chair of its Economy Subcommittee for the last four years, Judge Judge Carolyn Dineen Robert C. Broomfield (D. Ariz.) acknowledged that King (5th Cir.) some Conference committees were more active in containing costs than others. “Over time it became apparent that with the funding increases Congress was giving us—or, more accurately, not giving us—there was going to be a substantial deficit in the long term,” said Broomfield. “It was at that time the Chief Justice decided he needed to ask the Executive Committee to become involved in the effort.” “We knew we needed to look at our overall spending requirements from a Judiciary-wide perspective rather than on a piecemeal basis and make an effort to cut them. I mean a serious effort,” said Judge Carolyn Dineen King (5th Cir.), who chaired the Executive Committee at that time. “But the Executive Committee didn’t have the authority to charge an ad hoc group of judges with the responsibility to develop an integrated strategy,” she said. “So we put together a summary of the relevant information and went to see Chief Justice Rehnquist. I went through the numbers with him; I don’t think it took more than 15 minutes to lay it all out. And he looked at me and said, ‘Well, why can’t you do this?’ He gave the Executive Committee the authority and we gave the Conference committees with budget responsibility about four months to identify the factors that were driving costs and what could be done to control them or cut them. We also asked chief judges and court unit executives how they thought we could control costs.” “We wanted the cuts to be the committees’ ideas—not the Executive Committee’s and not the AO staff’s ideas,” King said. “We believed that the people who needed to be making the decisions about the cuts were the people on the committees with budget responsibility. I was extremely impressed with the overall sense of willingness on the part of judges to do what was asked.” By the September 2004 meeting, the Judicial Conference was ready to consider the Executive Committee’s comprehensive strategy for cost containment and a Judge Robert C. number of sweeping cost-containment measures recomBroomfield (D. Ariz.) mended by its committees, even as Judiciary leaders continued to work to secure necessary funding from Congress. “I remember sitting next to Chief Justice Rehnquist at the meeting,” King said, “and I didn’t know what was going to happen. Amazingly, the cost-containment strategy was unanimously approved. The Chief Justice turned to me and said, ‘Could you ever have expected that? Congratulations.’ And that was that. We had all of the basic components in place.”
Although IT is only about 6 percent of the total Salaries and Expenses account, cost pressures are substantial due to constant demands for more advanced technologies. In 2004, a key cost driver was the delivery of many national applications by installing them on servers in every court location. Improvements in the national data communications network have allowed the consolidation of servers, which is already saving money. Running the Jury Management System (JMS) on the same server with CM/ECF has produced a savings of $2 million in the first year. “Servers are expensive pieces of equipment,” said Vanaskie. “In the case of JMS, you were eliminating 94 servers and their cyclical replacement. And we’ve also seen that with PACTS, the case management systems used in probation and pretrial services offices. All of the probation and pretrial services offices in the nation now are running their PACTS systems on consolidated servers, with a projected savings in the same magnitude as JMS.” A significant savings also is expected from the consolidation of the servers for the Judiciary’s accounting system, FAS4T. “I think we have to recognize that we’re investing when we spend on technology,” Vanaskie said. “It’s intended to have a positive impact on how work is processed.”
Program Modifications Produce Savings Probation and pretrial services: Less costly drug-testing methodologies and treatment services are being pursued, along with ways to improve program evaluation data. Co-payments may be required from defendants and offenders who have the ability to pay for services. Prior to the cost-containment effort, law enforcement-related costs were
See Cost Containment on page 6
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Cost Containment continued from page 5
projected to increase 10 percent per year, reaching $130 million by 2009. With these cost-containment measures, in January 2007 it was estimated that law enforcement-related requirements will be $94 million in 2009. Law Book Expenditures: Computerassisted legal research is expanding and law book collections are being limited. In 2004, it was estimated that law books requirements would increase 19 percent to $45.6 million by 2009. With cost containment, law books requirements are now estimated to be $38.4 million in 2009. Defender Services: Among the costcontainment initiatives underway is a pilot project to assess the extent to which case budgeting advice may help reduce appointed counsel costs in capital and non-capital high-cost cases. Economies in defense representation are being promoted by the adoption of policies in capital cases—one to reduce the compensation rate when a case ceases to be death-eligible and another to encourage more timely Justice Department decisions about whether to seek the death penalty. Estimates in 2004 indicated that defender services budget requirements would rise 72 percent by 2009, reaching $1.1 billion. The January 2007 long-range budget estimate is $970 million in 2009, $130 million less than initially estimated. Magistrates Judges System: The recommended number of new magistrate judges has been sharply reduced by the Judicial Conference Committee on the Administration of the Magistrate Judges System, and courts with lower workloads are urged not to fill vacant positions. Court Security: Cost-containment efforts in the area of court security have saved approximately
6
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2007 AO Committee Award Recognizes Two Allen Brown, Chief of the Policy and Strategic Initiatives Office, Office of Human Resources; and Nick DiSabatino, Chief of the Probation and Pretrial Services Technology Division, Office of Probation and Pretrial Services, are the recipients of the 2007 Leonidas Ralph Mecham Award for Exemplary Service to the Courts. The award recognizes individual Administrative Office staff for significant accomplishments that The 2007 award winners, Nick DiSabatino (photo left) and have improved court Allen Brown (photo right) with AO Committee chair Judge administration, internal Roger L. Gregory (4th Cir.). controls, program effecrecommendations have been unanitiveness, communicamously accepted by the Working tions, or efficiency in the courts or Group.” the AO. DiSabatino’s nomination for Judge Roger L. Gregory, the 2007 award was endorsed by chair of the Judicial Conference 86 chief pretrial services officers. Committee on the Administrative Several wrote to say, “We would not Office, presented the awards. be where we are as a system without Brown was selected for his his vision and leadership;” “He efforts in designing and coorhas guided extraordinary advances dinating the Court Compensain the Judiciary’s automation tion Study. The study examined programs”; and “The IT infrastruccompensation and classification ture improved almost overnight policies for 27,200 employees after Nick was appointed.” across the court system, and DiSabatino was instrumental in involved nearly 600 judges and the enhancement of the national employees, along with the Court Probation/Pretrial Services AutoCompensation Study Working mated Case Tracking System Group and the Judicial Resources (PACTS), which has saved the courts Committee. This extensive effort hundreds of thousands of dollars has resulted in recommendain operating and maintenance costs tions to the Judicial Conference by warehousing data in one locathat have the potential to achieve tion. He also improved communia cost savings of approximately cation by establishing an Informa$330 million between 2009 and tion Technology Working Group, 2017. which brings together probation Judge W. Royal Furgeson, and pretrial services officers from Chair of the Judicial Resources around the country to develop innoCommittee, wrote that, without vative strategies to accomplish the Brown’s leadership, “the study work of the probation and pretrial would not have been completed services offices. so timely nor would the resulting
The U.S. Court of Appeals for the Federal Circuit–Could Rising Appeals Swamp the Court? The U.S. Court of Appeals for the Federal Circuit is, in many ways, thriving. It has a full complement of 12 judges in regular active service and four active senior judges, all of whom are writing more opinions than ever before. And they have reduced their backlog of argued cases. But a cloud threatens on the horizon. A perfect storm of cases is building in certain courts and federal administrative boards whose decisions can be appealed to the Federal Circuit. In fiscal year 2006, filings in the Federal Circuit grew to the highest level since 2002, with increases in filings reported from eight of eleven sources of appeals. One of those sources is the U.S. Court of Appeals for Veterans Claims. Last year, the number of appeals to the Federal Circuit from that court increased 90 percent over the previous year. This surge of veterans’ appeals stems from a substantial rise in the lower court’s own caseload. As of June 2007, the Court of Appeals for Veterans Claims received more filings than in any other two-quarter period in its 19-year history. “My six fellow judges, five retired recall-eligible judges, and I are deciding about 300 appeals a month,” said Chief Judge William P. Greene, Jr., of the Court of Appeals for Veterans Claims. Cases come to his court from the Board of Veterans’ Appeals, which last year decided nearly 40,000 cases. Denials of benefits by the Board in 2006 totaled more than 18,000, nearly twice the number reported in 2004. “We estimate that our court receives about 10 percent of the total cases reviewed by the Board,” Greene said. Most appeals to the Veterans Court are not related to current
military conflicts. In fact, Greene says appeals are largely from decisions on VA claims by veterans of World War II, the Korean conflict and the Vietnam War. Once claims from current conflicts move into the system, he said, “The potential number of cases coming to the court could be astronomical.” According to Chief Judge Paul R. Michel of the Court of Appeals for the Federal Circuit, veterans’ cases are now the third largest category of cases handled by his court— with patent cases in first place and government personnel cases in second place. He expects the number of veterans’ cases to increase sharply in the next few years. And, although recent decisions in several lead cases each led to the adjudication of dozens of pending veterans’ appeals, Michel doesn’t believe that the bulk of new cases will be so easily resolved. “There are no broad rules to cover most of the appeals that are working their way to our court. The prospect is that they will require individual, case-by-case adjudication. They could, in fact, swamp our court before year’s end.” And he anticipates another increase in the Federal Circuit’s caseload will come in approximately two years when claims from military members who served in either Iraq or Afghanistan arrive. “Unlike our other cases, our court’s review in veterans’ cases is only on the interpretation of statutes or regulations. Some appeals will be dismissed because they raise factual issues. But the percentage is impossible to predict,” said Michel. The Federal Circuit has a new mediation program to deal with some portion of these and other cases. The program is mandatory
and rigorous. Two full-time mediators are assisted by 15 trained, pro bono mediator/attorneys. Michel credits the program with helping to maintain the speed and quality of decisions in the face of increasingly complex and numerous cases. The court is currently at full strength, which allows more threejudge panels to be scheduled each month. Since last September, visiting judges have also assisted each month and are scheduled through 2007 and 2008. According to Michel, the visiting judges like the experience they get, especially on the court’s many patent cases. “These cases are very challenging,” he says. “Our visiting judges learn the different dimensions of patent cases—which helps them with such cases when they return to their home courts.” Michel’s main concern is the court’s continuing ability to decide increasing numbers of appeals in a timely manner with consistently high quality. “It doesn’t pay to panic—at least not yet,” he says wryly.
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THE
JUDICIAL MILESTONES
Appointed: William L. Osteen, Jr., as U.S. District Judge, U.S. District Court for the Middle District of North Carolina, September 19.
Retired: U.S. Senior District Judge William L. Osteen, Sr., U.S. District Court for the Middle District of North Carolina, September 14.
Appointed: Martin K. Reidinger, as U.S. District Judge, U.S. District Court for the Western District of North Carolina, September 17.
Retired: U.S. Magistrate Judge Charles B. Smith, United States District Court for the Eastern District of Pennsylvania, September 30.
Appointed: Janis Lynn Sammartino, as U.S. District Judge, U.S. District Court for the Southern District of California, September 21.
Retired: U.S. Bankruptcy Judge Jo Ann Stevenson, U.S. Bankruptcy Court for the Western District of Michigan, October 2.
Appointed: Craig A. Gargotta, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Western District of Texas, October 1.
Deceased: U.S. Senior Court of Appeals Judge H. Emory Widener, Jr., U.S. Court of Appeals for the Fourth Circuit, September 19.
Elevated: U.S. District Judge Jennifer B. Coffman, to Chief Judge, U.S. District Court for the Eastern District of Kentucky, succeeding U.S. District Judge Joseph M. Hood, October 15.
Deceased: U.S. Senior Judge Thomas A. Flannery, U.S. District Court for the District of Columbia, September 20.
Elevated: U.S. District Judge David R. Herndon to Chief Judge, U.S. District Court for the Southern District of Illinois, succeeding U.S. District Judge G. Patrick Murphy, October 3. Senior Status: U.S. District Judge Edward R. Korman, U.S. District Court for the Eastern District of New York, October 25. Senior Status: U.S. District Judge Stephen M. McNamee, U.S. District Court for the District of Arizona, October 1.
Deceased: U.S. Senior Judge C. A. Muecke, U.S. District Court for the District of Arizona, September 21.
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 October 1, 2007 Courts of Appeals
Vacancies Nominees
16 10
District Courts
Vacancies Nominees
Courts with “Judicial Emergencies”
32 14 18
Senior Status: U.S. District Judge Joseph M. Hood, U.S. District Court for the Eastern District of Kentucky, October 14. For more information on vacancies in the federal Judiciary, visit our website at www.uscourts.gov under Newsroom.
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Cost Containment continued from page 6
$20 million with a district-wide review of Federal Protective Service charges.
Public Comment Received on Draft Rules
Long-Term Vigilance Judge Gibbons lauds the Judicial Conference committees, court staff, and the AO for their efforts. “With cost containment we can take a look at what is important in terms of our function and our mission,” she said, “and make reasonable policy decisions that make sense for the Judiciary. Cost containment is a strategy that helps us plan for our future.” And what does the future look like? “Thanks to these efforts, the anticipated gap between estimated budget requirements and funding levels has shrunk,” said Administrative Office Director Jim Duff, “but continued vigilance will be necessary for the long term.” “I think we’re going to be living in a very challenging budget environment,” Gibbons adds. “Without cost containment, we’re not going to be able to get enough money from Congress to meet our needs. Cost containment happens to be the right strategy—and the right thing to do. We have an obligation to be good stewards of the taxpayers’ money.”
The Judicial Conference Committee on Judicial Conduct and Disability held a public hearing in Brooklyn, New York on September 27, 2007, to take testimony on a set of 29 draft rules that, if adopted by the Judicial Conference, will apply to judicial conduct and disability proceedings in the federal courts. Judge Ralph K. Winter (above), chair of the Committee, presided at the hearing. Matters covered by the draft rules include complaint initiation and review, venue, confidentiality, publication, remedies, the conduct of investigations, and the rights and roles of participants in the process. The draft rules were posted to www.uscourts.gov, with a request for written comments from the public, for a 90-day period ending October 15, 2007. Before submitting the rules for Conference consideration, the Committee will revise them, taking the comments into account.
2008 CR continued from page 1
The Judiciary’s Pending FY 2008 Funding at a Glance House Passed Level:
$6.257 billion
Senate Appropriations Committee Mark:
$6.337 billion
FY 2008 Full Requirements for the Judiciary:
$6.372 billion
Government Appropriations bill in June and the Senate Appropriations Committee approved its version a month later. By the end of September, the Judiciary’s 2008 funding measure had yet to make it to the Senate floor for a vote and because of the limited number of legislative days remaining, it is unlikely to be considered by the full Senate prior to conference with the House. The Judiciary is not alone in entering the new fiscal year without
appropriations. Although the House has passed all 12 of its appropriations bills, the Senate has passed just four. In previous years, to move the process along, Congress often incorporated all the remaining appropriations bills into an omnibus bill, voting up or down on the entire package, and sending the bill to the President for approval. President Bush already has warned that he would not approve such an omnibus bill if it exceeds his FY 2008 budget request. This is the first fiscal year the Judiciary has been included in a Financial Services and General Government appropriations bill. Previously, the federal courts have been funded in the Transportation, Treasury, Housing and Urban Development, the Judiciary, and Independent Agencies appropriations bill.
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Pretrial Services Act Turns 25 “You are the gatekeepers at the front door of the halls of justice,” Chief Judge James G. Carr (N.D. Ohio) told the hundreds of federal pretrial services officers gathered from across the nation. “How you do your job is going to affect . . . the willingness of the defendant, found guilty or not, incarcerated or not, to accept that the system is fair, compassionate and considerate of his rights and the welfare of all of us,” Carr said. The officers met in Cleveland for two days in September to commemorate the 25-year anniversary of the Pretrial Services Act, the law Carr called “one of the most significant advances in simple justice that our system has ever witnessed.” The first federal pretrial services officers were part of a pilot program authorized by the Speedy Trial Act of 1974, but the Pretrial Services Act that authorized these vital functions for judicial districts nationwide was not passed by Congress until the fall of 1982. In the intervening quarter century, the core responsibilities of pretrial services officers have remained constant: Identifying and addressing the risks of a criminal defendant’s flight and the risks of danger to the community if that defendant is released pending trial. “What you do for the Judiciary is at the very heart and soul of the judicial system,” Administrative Office Director James C. Duff told the pretrial services officers, “because you enhance the human touch, the human element in what the Judiciary does. Our judges, especially the magistrate judges, have really come to expect having verified information about defendants who appear before them, and having someone to supervise those released pending trial.”
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Administrative Office Director James C. Duff addressed pretrial services officers at the 25th anniversary of the Pretrial Service Act in Cleveland, Ohio in September. The meeting was attended by pretrial services officers from around the country.
He added: “Pretrial services gives judges alternatives to simply locking people up or letting them out without supervision.” In the year following the law’s enactment, 15,000 cases were handled by pretrial services officers. Today, pretrial services officers handle nearly 100,000 cases each year. “We’re firmly established as a function in the federal judicial system,” said Carol Miyashiro, chief pretrial services officer for the District of Hawaii. “Pretrial services exist in all 94 judicial districts. Depending upon the district, pretrial services is administered by either a separate pretrial services office or as part of the probation office.” Dan Ryan, retired Operations Branch chief of the AO’s old Federal Corrections and Supervision Division, remembers a time when the future of pretrial services was in doubt. As he traveled from district to district to explain the then-new phenomenon, Ryan said he encountered “a lot of healthy skepticism. There were some districts where I just couldn’t wait to get out of there. I mean, it was really a hostile audience in places,” he said.
Astounding efficiency helped win over the skeptics. In the 25 years since passage of the Pretrial Services Act, less than 2 percent of the 1.5 million cases handled have resulted in a released defendant’s failure to appear for trial or a released defendant being re-arrested. “Thank you for your work,” Carr told the pretrial services officers. “We admire you greatly.” He said judges depend on pretrial services officers “to give us your best judgment, not to try to anticipate my predilections as a judge, what you think I might want to do with this particular defendant, and certainly not to simply go along with and accept whatever the prosecutor or the defense attorney wants . . . Make the best inquiry you can, and give us the best advice you can.” John Hughes, the AO’s assistant director for the Office of Probation and Pretrial Services, sees pretrial services officers as protectors of a fundamental tenet, the presumption of innocence. “You have to be a change agent,” Hughes told the pretrial services officers in Cleveland. “Your job is not simply to process defendants and write reports.”
“We make it messy, and we should make it messy. It’s a big deal to lock someone up,” he said. “Pretrial services officers should help the court so that pretrial detention is truly the last resort.” The passage of time has seen enormous changes in the type of cases, and the kind of defendants, encountered by pretrial services officers. No longer are federal criminal defendants predominantly accused of “white collar” offenses. Most face charges linked to drugs and firearms. “Our clientele has changed a lot since I started in the system 20 years ago,” said Greg Johnson, chief probation officer for the Northern District of Ohio. His district has begun an outreach program aimed at people Johnson says “are predisposed to drug and firearm crimes.” The Project Penalty Awareness program in Cleveland’s public schools explains the severe penalties such crimes can draw in the federal justice system. The program soon may be part of the social studies curriculum throughout Ohio’s public schools. “I think pretrial officers need to be much more proactive and need to be looking at prevention,” Johnson said. Technological advances—innovations such as electronic monitoring, global position satellites, and handheld drug-testing devices—have proved cost-effective by adding to the available alternatives to pretrial detention. “The changing face of technology does affect our core responsibilities, but technology does not replace those responsibilities,” Johnson said. In helping commemorate the Pretrial Services Act’s silver anniversary, AO Director Duff told the assembled officers, “Your services are more crucial today than they ever were, 25 years ago.”
Election Season Brings Reminder of Political Prohibitions Ah, the election season. Candidates are stumping, party fundraisers are soliciting, campaign posters are sprouting on lawns. Is it time to get out and campaign for your favorite candidate? The answer, for judges and most judicial employees, is no. Partisan political activities are prohibited by Canon 7 of the Code of Conduct for U.S. Judges, and Canon 5 of the Code of Conduct for Judicial Employees. Under both codes, a judge or judiciary employee should not act as a leader or hold any office in a political organization; make speeches for a political organization or candidate, or publicly endorse or oppose a partisan political organization or candidate. Neither should they solicit funds for or make a contribution to a political organization or candidate or event. The prohibition includes displaying a campaign picture, sign, sticker, badge or button for a partisan political candidate or organization or acting as a recorder, watcher, challenger, or similar officer at the polls in a partisan political election. Judiciary employees also may not authorize use of their name as an endorsement; initiate or circulate a nominating petition for a candidate in a partisan political election; or participate in a partisan political convention, caucus, rally, or fundraising activity. Judges are further prohibited from attending political gatherings or purchasing tickets for political
party dinners or other functions and should resign their judicial office when he or she becomes a candidate either in a primary or in a general election for any office. Nonpartisan political activities also are prohibited for members of a judge’s personal staff and certain court unit heads. For them, the prohibitions concerning partisan political activities generally apply to nonpartisan political activities as well. Of course, all judicial employees may register and vote in any primary or general election, and they may register as a member of a political party. Employees are also entitled to voice, although privately, their opinions regarding a political candidate or party. Participation is allowed in the nonpolitical activities of a civic, charitable, religious, professional, educational, cultural, avocational, social, fraternal, or recreational organization. Judicial employees who are not covered by the Code of Conduct for Judicial Employees should consult the codes and ethical standards applicable to them for guidance on participation in political activities. Questions concerning political activity may be directed to the AO’s Office of General Counsel or the Judicial Conference Committee on Codes of Conduct.
11 The Third Branch
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October 2007
JUDICIAL CONFERENCE OF THE UNITED STATES, September 18, 2007
Seated (LtoR): Chief Judge Michael Boudin (1st Cir.); Chief Judge Dennis Jacobs (2nd Cir.); Chief Judge Anthony J. Scirica (3rd Cir.); Chief Judge Karen J. Williams (4th Cir.); Chief Justice John G. Roberts, Jr.; Chief Judge Edith Hollan Jones (5th Cir.); Chief Judge Danny J. Boggs (6th Cir.); Chief Judge Frank H. Easterbrook (7th Cir.); Chief Judge James B. Loken (8th Cir.) Standing, Second Row (LtoR): Judge Ernest C. Torres (D. RI); Chief Judge Kimba M. Wood (S.D. NY); Chief Judge Garrett E. Brown, Jr. (D. NJ); Chief Judge Douglas H. Ginsburg ( D.C. Cir.); Chief Judge Paul R. Michel (Fed. Cir.); Chief Judge Mary M. Schroeder (9th Cir.); Chief Judge Deanell R. Tacha (10th Cir.); Chief Judge J. L. Edmondson (11th Cir.); Judge David C. Norton (D. SC); and Chief Judge Glen H. Davidson, N.D. Miss.). Standing, Third Row (LtoR): Judge Charles R. Simpson III (W.D. Ky.); Judge Wayne R. Andersen (N.D. Ill.); Judge Charles R. Breyer (N.D. Cal.); Judge Alan B. Johnson (D. Wyo.); Judge Lawrence L. Piersol (D. SD); Chief Judge Robert L. Hinkle (N.D. Fla.); Chief Judge Thomas F. Hogan, (D. DC); Chief Judge Jane A. Restani, (Int’l Trade); and James C. Duff, Director, AOUSC.
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