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THE

THIRD BRANCH

Newsletter of the Federal Courts

Vol. 40 Number 2 February 2008

Judiciary Funded National Summits Help Federal Courts Prepare For FY 2008 for Sentence Reduction Requests

IN-DEPTH

Fiscal year 2008 funding for the Judiciary was rolled up with 10 other appropriations bills and passed by Congress on December 19, 2007, as the 2008 Consolidated Appropriations Act. The President signed the bill into law the day after Christmas. The Judiciary received $6.246 billion in FY 2008, a 4.5 percent increase over FY 2007. “Despite constrained allocations to our appropriations subcommittee, the Judiciary was funded at an extremely good level,” said Administrative Office Director James C. Duff. “We believe this bill provides sufficient resources to finance continuing operations in the courts and to address the See Funding on page 5

Chief Probation Officer Greg Forest of the Western District of North Carolina welcomed hundreds of attendees to the Crack Retroactivity Summit in Charlotte, North Carolina.

More than 600 district court judges, federal defenders, prosecutors, and probation officers gathered last month for two-day summits in Charlotte, North Carolina, and St. Louis, Missouri, to help each other prepare for a sudden increase in their workloads.

INSIDE

As of March 3, 2008, more than 21,000 inmates serving time for federal crimes involving crack cocaine will be eligible to have their sentences reduced. Federal courts already are preparing to rule on requests from inmates, some imprisoned since 1992. See Summits on page 2

110th Congress Acts on Judiciary Initiatives..........................pg. 3 COLA for Federal Judges in FY 2008......................................pg. 9 Bankruptcy Courts Offer Mediation......................................pg. 9

Rate Increase for CJA Attorneys The 2008 Consolidated Appropriations Act of 2008, P.L. 110-161, authorized and provided funds to raise the non-capital hourly panel attorney compensation rate from $94 to $100, and the maximum hourly capital rate from $166 to $170 for federal capital prosecutions and capital post-conviction proceedings. These rates apply to attorneys appointed to represent eligible persons under the Criminal Justice Act, 18 U.S.C. § 3006A, and the Antiterrorism and Effective Death Penalty Act of 1996, codified in part in 18 U.S.C. § 3599. The new rates apply to work performed on or after January 1, 2008.


I N - D E P T H Summits, cont. from page 1

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After amending the Federal Sentencing Guidelines to reduce penalties for crack cocaine offenders sentenced on or after November 1, 2007, the U.S. Sentencing Commission (USSC) voted a month later to make the amendment retroactive. The USSC, an independent agency within the federal Judiciary, amended the Guidelines to lower the base offense level for crack cocaine by two levels. For example, the penalty for a first-time offender found with 10 grams of crack would be reduced by two levels, from a range of 63–78 months in prison to a range of 51–63 months. The USSC initially estimated that 19,500 prison inmates might be affected, but its estimate has increased to nearly 21,000 to account for offenders sentenced after July 31, 2007, when the initial analysis was conducted. Many court officials believe the number of affected inmates may be far greater and that many inmates not eligible for a reduction will file requests anyway. “At the end of the day, justice will be done, and the process will not be disruptive,” Judge Paul Borman (E.D. Mich.) told those who gathered in Charlotte. “Meetings like this one will help ensure that.” The meetings were conceived and hosted by Chief Probation Officers Greg Forest of the Western District of North Carolina and Doug Burris of the Eastern District of Missouri. Since Congress established a 100-to-1 ratio of penalties between crack and powder cocaine in the AntiDrug Abuse Act of 1986, controversy has swirled around the discrepancy. The amendment’s retroactivity had been supported by the Judicial Conference’s Criminal Law Committee as a modest step toward fairness. “The Committee believes that the burden to the courts and probation offices associated with resentencings is not a sufficiently counterThe Third Branch

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Judge John Gleeson (E.D. N.Y.), chair of the Judicial Conference Committee on Defender Services, makes a point while a fellow panelist, Judge Paul Borman (E.D. Mich.), listens.

vailing consideration . . . The Judicial Conference has previously expressed its view that the disparity between penalties for powder cocaine and crack cocaine is not supportable and harms public confidence in the federal Judiciary,” stated a November 2, 2007, letter from the Criminal Law Committee to Judge Ricardo Hinojosa (S.D. Tex.), who chairs the U.S. Sentencing Commission. Several common themes for dealing with the reduction requests dominated the two meetings: • Teamwork among probation, federal defender, and U.S. attorney offices as well as the Federal Bureau of Prisons and court clerk staffs will be essential. • It is also essential that each of the 94 judicial districts have a procedural plan in place before the retroactivity amendment’s March 3 effective date. • Any such plan should facilitate a three-step determination: whether a defendant is eligible for a reduction; the extent of reduction allowed; and other factors, such as public safety, that may influence reduction and release decisions.

• Reductions are not automatic. Determinations must be made by a judge on a case-by-case basis. • It is generally agreed that the overwhelming majority of cases will not require court hearings and will be resolved on written filings. • Priority should be given to resolving requests concerning inmates who, if successful, would be eligible for immediate release. (Consideration of a sentence reduction can result from a request from a defendant or the director of the Bureau of Prisons, or by a judge’s order.) • It is, and will remain, a fluid process. Some issues may not be resolved until they are fully litigated. One issue to be resolved, most likely on a district-by-district or even judge-by-judge basis, is whether all defendants who seek reduced sentences should be represented by court-appointed counsel. Federal public defenders believe each inmate deemed eligible for a reduction should have legal representation. “It may well be that 90 percent


of the cases will result in agreements if defendants are represented by counsel,” said Amy Baron-Evans, who is the National Sentencing Resource Counsel to the Federal Public and Community Defenders. “This is about basic fairness.” Judge John Gleeson (E.D. N.Y.), chair of the Judicial Conference Committee on Defender Services, voiced his agreement and described the genesis of the sentencing structure now subject to modification. The Sentencing Commission did not use pre-Guidelines average sentences in fashioning the sentencing grid but rather prescribed much higher sentences so they would coincide with the mandatory minimum sentences enacted in 1986. Gleeson quoted the USSC’s 15-year report, issued in November 2004, which described the impact of linking the Guidelines ranges to

the mandatory minimums: “[N]o other decision of the commission has had such a profound impact on the federal prison population . . . (and) had the effect of increasing prison terms far above what had been typical in past practice.” Gleeson concluded, “These are grossly unfair sentences, especially for non-violent crack Judge Julie Carnes (N.D. Ga.) moderated a judges panel offenders, and the retrodiscussion in Charlotte. She is the new chair of the Judiactivity amendment is cial Conference Committee on Criminal Law. only a small step toward addressing the unfairness. help review all defendants’ requests This is a class of offenders who got early in the process might negate a raw deal . . . The question ought the need for individualized counsel. to be, ‘Why shouldn’t they get a Some judges questioned the need for lawyer?’” counsel in every case, especially those He agreed, however, with in which a sentence reduction is inapanother judge’s suggestion that See Summits on page 6 having federal public defenders

110 Congress Acts on Judiciary Initiatives th

As the first session of the 110th Congress ended, several bills of interest to the Judiciary were either under consideration or on their way to the White House for the President’s signature. Action on pending bills began again in the second session, which started in January 2008.

Court Security/Redaction Authority

The Court Security Improvement Act of 2007 became Public Law No. 110-177 on January 7, 2008. Congress passed the legislation in midDecember. The new law improves the security of federal judges and the courts. It requires the Director of the U.S. Marshals Service to consult on a continuing basis with the Judicial Conference on court security; it extends until 2011 the Judicial Conference’s authority to redact

Arlen Specter (R-PA), along with Senasensitive information from the finantors Richard cial disclosure reports of federal Durbin judges; it allows judges to use their (D-IL), courthouse address instead of their Edward home address when applying for Kennedy state-issued documentation, such as (D-MA), driver’s licenses; and it protects federal John Cornyn judges against the malicious recording Senator Patrick J. Leahy (R-TX), Orrin of fictitious liens by creating a new (D-VT) Hatch (R-UT), federal criminal sanction. Charles Schumer (D-NY), and Susan “The adequate security of federal Collins (R-ME). In the House, we are judges and their families has been a especially grateful to Representative long-term issue and concern,” said John Conyers (D-MI), chair of the Administrative Office Director James House Judiciary Committee; ranking C. Duff. “This law makes muchminority member Representative needed improvements in the way Lamar Smith (R-TX); and Subcomin which the federal Judiciary is mittee on Crime, Terrorism, and Homeprotected. Our thanks go to Senate land Security chair, Representative Majority Leader Harry Reid (D-NV), Bobby Scott (D-VA), and ranking Minority Leader Mitch McConnell member Representative Louis (R-KY), Judiciary Committee Chair Gohmert (R-TX), for their support.” Senator Patrick Leahy (D-VT), and See Congress on page 4 ranking minority member Senator The Third Branch

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Congress continued from page 3 The Court Security Improvement Act of 2007 contains additional provisions of interest to the Judiciary. Those provisions will: • give magistrate judges Federal Employees Group Life Insurance (FEGLI) coverage comparable to that of Article III judges. At the last moment, FEGLI coverage for territorial and bankruptcy judges was struck from the House version of the bill because of strict pay-as-you-go budget rules that require an identified offset for this spending. The Administrative Office will pursue immediately the “FEGLI fix” for bankruptcy judges and territorial judges in the second session of the 110th Congress; • eliminate one judgeship for the Court of Appeals for the District of Columbia and create one judgeship for the Court of Appeals for the Ninth Circuit; and • authorize senior judges who carry a 50 percent workload to participate in court management proceedings such as the appointment of court officers and magistrate judges, rulemaking, and other administrative matters.

Cameras in the Courtroom In the first session of the 110th Congress, bills allowing broadcast media coverage of court proceedings were introduced in both chambers. In October 2007, the House Judiciary Committee amended and reported H.R. 2128, the Sunshine in the Courtroom Act of 2007. The bill would authorize the presiding judge to permit the “photographing, electronic recording, broadcasting, or televising to the public of any court proceedings” in a federal appellate court (including the Supreme Court) or a district court. Under the provisions of H.R. 2128, the face or voice of witnesses could be obscured, and jurors could not be televised in a court

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proceeding. The Judicial Conference would be able to promulgate guidelines for judges on the management and administration of cameras in the courtroom. The authority for camera coverage in the district courts would sunset three years after enactment of the bill. The House did not vote on the legislation before the session ended. As the first session drew to a close, the Senate Judiciary Committee considered a similar bill, S. 352. On December 6, 2007, the Committee amended the bill, adopting some of the same changes as the House Judiciary Committee. In addition, the Senate Judiciary Committee reported S. 344, a camera coverage bill applicable only to the Supreme Court. The bill would require the Court to permit television coverage of all open sessions unless it decides, by majority vote, that allowing such coverage would constitute a violation of the due process rights of one or more parties. The Judicial Conference strongly opposes H.R. 2128 and S. 352 because they would permit the use of cameras in the federal trial courts and change the present policy of allowing a court of appeals first to determine whether to permit cameras in that circuit.

(which requires express congressional approval to permit judges to receive a cost-of-living adjustment as provided annually under the Ethics Reform Act of 1989) and authorizing future annual pay adjustments at levels received by General Schedule employees. The bill would also modify some retirement rules for judges. Shortly after the House Judiciary Committee action, the Senate Judiciary Committee began consideration of S. 1638, its version of the Judicial Salary Restoration bill. The Committee adopted the same pay levels, cost-of-living, and service provisions as the House bill, as well as additional amendments. The bill was reported out of committee in the early weeks of the second session.

Judges’ Pay

Outside Earned Income Ceiling for FY 2008

Federal judges received a 2.5 percent cost-of-living increase for FY 2008. (See chart on page 9.) In addition, progress was made toward Congressional passage of federal judicial salary restoration legislation. In his Year-End Report, Chief Justice Roberts thanked the House and Senate leadership, as well as the President, for their bipartisan support. Passage of a judges’ pay bill remains a high priority for the Judiciary in 2008. Last session, in December 2007, the House Judiciary Committee reported an amended version of H.R. 3753, the Judicial Salary Restoration Act of 2007 by a vote of 28–5. As amended, the bill would give federal judges their first real pay raise since 1991, while repealing Section 140 of P.L. 97–92

With the January 1, 2008 increase in the basic pay for Executive Schedule employees, the ceiling on outside earned income for federal judges also increased, from $25,200 in 2007 to $25,830 in 2008. The ceiling applies only to outside earnings and not to investment income, royalties, pensions, and similar income sources that are specifically excluded by regulation. The Ethics Reform Act prohibits high-ranking government officials from having outside earned income exceeding “15 percent of the annual rate of basic pay for Level II of the Executive Schedule.” Effective January 1, 2008, the basic pay for Executive Level II increased to $172,000.


Funding continued from page 1 growth in workload, especially that associated with immigration enforcement.” In the Act, Congress directed that a $25 million emergency appropriation be made available “to address critically understaffed workload associated with increased immigration enforcement.” With the decision by Congressional leaders to reduce spending in order to resolve a budget impasse with the President, FY 2008 had the potential for being a particularly tight year for appropriations. For most of the Executive Branch, it was. Final allocations for our appropriations subcommittee were reduced by $1 billion below their initial allocation. “Obtaining an increased funding level for the federal courts in such a contentious budget environment demonstrates that the Judiciary remains a funding priority for Congress,” said Duff. “It also reflects the concerted and sustained efforts of the Judicial Conference Budget Committee led by Judge Julia

Gibbons (6th Cir.), judges around the country who are instrumental in our Congressional outreach initiative, and our AO staff.” The Judiciary’s Salaries and Expenses account received $4.623 billion. At this level, the Executive Committee was able to approve a financial plan that provides court units with an overall increase of 7.7 percent in allotments over FY 2007. It is expected that those court units experiencing workload increases— primarily district clerks and probation and pretrial services offices—could continue to hire additional staff in FY 2008. Immigration-related workload is addressed with $14.5 million of the $25 million in emergency spending provided by Congress. The Defender Services account received $846.1 million, or a 9 percent increase over FY 2007. This includes the remaining $10.5 million of the $25 million Congress provided in emergency spending for immigration-related workload. The appropriation included an

hourly pay rate increase for criminal justice act attorneys. The Court Security account received $410 million, an 8.3 percent increase. Congress also approved a pilot project requested by the Judiciary to have the U.S. Marshals Service assume perimeter security functions, currently performed by the Federal Protective Service, at a limited number of courthouses. The Consolidated Appropriations Act of 2008 also included general provisions that: • create a place of holding court in Vancouver, in the Western District of Washington; • extend the temporary judgeships in the District of Kansas and the Northern District of Ohio for one year; and • give the Judiciary tenant alterations authority to contract directly for projects costing under $100,000 in lieu of contracting through the General Services Administration.

Judiciary Appropriations ($000) Appropriation Account

FY 2007 Enacted Appropriations

U.S. Supreme Court Salaries & Expenses $62,576 Care of Building & Grounds 11,427 Subtotal 74,003 U.S. Court of Appeals for the Federal Circuit 25,311 U.S. Court of International Trade 15,825 Courts of Appeals, District Courts, & Other Judicial Services Salaries & Expenses 4,480,521 Defender Services 776,283 Fees of Jurors 60,945 Court Security 378,663 Subtotal 5,696,412 Administrative Office Federal Judicial Center Judicial Retirement Funds U.S. Sentencing Commission Total, the Judiciary

72,377 22,874 58,300 14,601 $5,979,703

FY 2008 President’s House Senate Budget Mark Mark

FY 2008 Final Approprations

$66,526 12,201 78,727

$66,526 12,201 78,727

$66,522 12,201 78,723

$66,526 12,201 78,727

28,538

27,976

27,438

27,072

16,727

16,544

16,632

16,632

4,858,554 859,834 62,350 421,789 6,202,527

4,664,689 830,499 62,350 396,476 5,954,014

4,714,090 840,601 63,081 412,720 6,030,492

4,623,361 846,101 63,081 410,000 5,942,543

78,536 24,835 65,400 16,191 $6,511,481

75,667 23,994 65,400 15,477 $6,257,799

78,536 24,475 65,400 15,477 $6,337,173

76,036 24,187 65,400 15,477 $6,246,074

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I N - D E P T H Summits, cont. from page 3 plicable. “Our court thinks we need to have more discussion about that,” said Judge Lance Africk (E.D. La.) Another significant issue, one which may not be resolved without litigation, is whether the Supreme Court’s 2005 decision in United States v. Booker, in which the Justices rendered the Sentencing Guidelines advisory, applies to a defendant’s sentence-reduction request. If so, a judge might not have to limit relief to a two-level reduction. For its part, the Sentencing Commission view is that an inmate’s sentence-reduction request does not trigger a full resentencing, and that under the relevant statute and policy statement the court is limited to the two-level reduction as provided in the amended Guideline.

two basic groups. The first group is those who might be eligible for release in 2008, 2009, or 2010, and the second group is the rest,” she said. “We need to get the first group of defendants to the front of the line. The second group of defendants will be handled as motions are filed by the defendants, and we are recommending that judges use the same basic procedure for their requests,” Fawsett said. Chief Judge Irene Keeley (N.D. W.Va.) presides over, in her words, “a small district that will face an awful lot of cases” due to the retroactivity amendment—perhaps as many as 800 for two active judges and two senior judges. A court task force already has drafted a plan for “how we’re going to deal with this,” she said.

The U.S. Sentencing Commission was represented at the Charlotte summit by, from left, General Counsel Kenneth Cohen; Principal Legal Training Advisor Alan Dorhoffer; USSC Chair, Judge Ricardo Hinojosa (S.D. Tex.); and Staff Director Judith Sheon.

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Some district courts, like the Middle District of Florida, used the January summits to polish tentative plans. Chief Judge Patricia Fawsett said she had met with the district’s probation office, public defender’s office, and the U.S. attorney’s office to map out a tentative protocol for dealing with what may be more than 1,300 cases for 15 judges. “We are dividing defendants into The Third Branch

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Various court officials at the Charlotte and St. Louis meetings voiced concerns about releasing some inmates into the general population before they spend some time in halfway houses and the possibility of inmates being freed without fully developed release plans. “What’s needed in each case is viable employment and a housing plan,” said Jeff Givens, chief proba-

tion officer in the Northern District of West Virginia. “This is going to fall to probation officers.” Steve Whisenant, chief probation officer for the Eastern District of Virginia, noted that “a lot of people could be coming out quickly” in his district, and suggested that a district’s Defendant/Offender Workforce Development plan might be used to help those released on, or soon after, March 3. Although 37 percent of all federal inmates are non-citizens, a much smaller percentage of crack offenders—5.5 percent—are noncitizens, who on release from prison will be handed over to immigration officials for deportation. The anticipated volume of requests presents logistical issues for those responsible for providing judges with what they need to make their decisions. A key source of information is the Bureau of Prisons (BOP). “It looks like we’re all going to learn a lot about the BOP in the next few months,” Judge Julie Carnes (N.D. Ga.) told court officials. Carnes is the new chair of the Judicial Conference Committee on Criminal Law. Jerry Vroegh, an administrator in the BOP’s Correctional Programs Division, explained to court officials that probation officers may access any inmate’s central file—containing a presentence report and judgment and commitment order—at the inmate’s local institution. BOP case managers can be called on for help, Vroegh added. He suggested that requests to BOP be communicated via the web-based E-designate system, and that his agency will seek a 10-day delay in the release of any inmate so, among other things, DNA samples can be collected, victims and law enforcement officials notified, and release paperwork completed. See Summit on page 9


The Middle District of Florida has tentatively mapped out a protocol to handle sentence reduction requests. Other districts may use a similar process.

STEP 1 The earliest of cases may begin with a judge’s motion, coded to be sent immediately to designated persons in the district’s probation office, public defender’s office, and the U.S. attorney. A clerk’s office staff member also will be designated, based on which of the Middle District’s five divisions has the case.

STEP 2 The public defender and U.S. attorney will have seven days to respond, with a notice of appearance. If the public defender’s office cites a conflict, a panel attorney may be appointed under the Criminal Justice Act.

Days

STEP 6 The judge then will either issue an order or schedule a hearing.

STEP 3 STEP 5

Once those responses are received, the probation office must prepare a supplemental presentencing report that states whether it believes the defendant is eligible for a sentence reduction and a proposed new Guideline calculation.

The public defender and U.S. attorney then will have an opportunity to respond to the supplemental report, and will be required to state on which issues they agree or disagree.

STEP 4 The report also will discuss the defendant’s conduct in prison, the impact on public safety of the defendant’s release, the defendant’s plan for release (where he will live and work), where the defendant is incarcerated, and whether that institution has video-conferencing capabilities.

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THE

JUDICIAL MILESTONES

Appointed: John Daniel Tinder, as U.S. Court of Appeals Judge, U.S. Court of Appeals for the Seventh Circuit, December 28. Appointed: Joseph N. Laplante, as U.S. District Judge, U.S. District Court for the District of New Hampshire, December 28. Appointed: Thomas D. Schroeder, as U.S. District Judge, U.S. District Court for the Middle District of North Carolina, January 8. Appointed: Amul R. Thapar, as U.S. District Judge, U.S. District Court for the Eastern District of Kentucky, January 4. Appointed: Laura S. Taylor, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Southern District of California, January 10. Appointed: James P. Hutton, as U.S. Magistrate Judge, U.S. District Court for the Eastern District of Washington, January 14. Appointed: Michael J. Hluchaniuk, as U.S. Magistrate Judge, U.S. District Court for the Eastern District of Michigan, December 24. Appointed: Kathleen Kay, as U.S. Magistrate Judge, U.S. District Court for the Western District of Louisiana, December 17. Appointed: Gregory J. Kelly, as U.S. Magistrate Judge, U.S. District Court for the Middle District of Florida, January 14. Appointed: Kathleen M. Tafoya, as U.S. Magistrate Judge, U.S. District Court for the District of Colorado, January 4. Elevated: U.S. Court of Appeals Judge Robert H. Henry, to Chief Judge, U.S. Court of Appeals for the Tenth Circuit, succeeding U.S. Court of Appeals Judge Deanell Reece Tacha, January 1.

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Elevated: U.S. District Judge David F. Hamilton, to Chief Judge, U.S. District Court for the Southern District of Indiana, succeeding U.S. District Judge Larry J. McKinney, January 1. Elevated: U.S. District Judge Jon P. McCalla, to Chief Judge, U.S. District Court for the Western District of Tennessee, succeeding U.S. District Judge James Dale Todd, January 1.

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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

Elevated: U.S. District Judge Kathryn H. Vratil, to Chief Judge, U.S. District Court for the District of Kansas, succeeding U.S. District Judge John W. Lungstrum, January 1. Elevated: U.S. Bankruptcy Judge Dennis R. Dow, to Chief Judge, U.S. Bankruptcy Court for the Western District of Missouri, succeeding U.S. Bankruptcy Judge Jerry W. Venters, January 1. Elevated: U.S. Bankruptcy Judge James D. Gregg, to Chief Judge, U.S. Bankruptcy Court for the Western District of Michigan, succeeding U.S. Bankruptcy Judge Jo Ann C. Stevenson, October 3. Elevated: U.S. Bankruptcy Judge John T. Laney, III, to Chief Judge, U.S. Bankruptcy Court for the Middle District of Georgia, succeeding U.S. Bankruptcy Judge Robert F. Hershner, Jr., January 14. Elevated: U.S. Bankruptcy Judge Marilyn Shea-Stonum, to Chief Judge, U.S. Bankruptcy Court for the Northern District of Ohio, succeeding U.S. Bankruptcy Judge Randolph Baxter, January 3. Senior Status: U.S. Court of Appeals Judge Daniel A. Manion, U.S. Court of Appeals for the Seventh Circuit, December 18. Senior States: U.S. District Judge Fred Van Sickle, U.S. District Court for the Eastern District of Washington, January 31.

For additional February milestones, visit The Third Branch on-line at www.uscourts.gov The Third Branch

THIRD

EDITOR-IN-CHIEF David A. Sellers MANAGING EDITOR Karen E. Redmond PRODUCTION Linda Stanton CONTRIBUTORS Dick Carelli, AO Please direct all inquiries and address changes to The Third Branch at the above address or to Karen_Redmond@ao.uscourts.gov.

JUDICIAL BOXSCORE As of February 1, 2008 Courts of Appeals

Vacancies Nominees

14 11

District Courts

Vacancies Nominees

Courts with “Judicial Emergencies”

31 16 19

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


COLA for Federal Judges in FY 08 P.L. 110-161, the Consolidated Appropriations Act of 2008, waived Section 140 of Public Law 97-92. Consequently, justices and judges of the United States are authorized to receive a cost-of-living adjustment for fiscal year 2008. The new salaries for FY 2008 are: Chief Justice.............................................................................................$217,400 Associate Justices....................................................................................$208,100 Judges U.S. Court of Appeals........................................................................$179,500 U.S. District Courts............................................................................$169,300 U.S. Court of International Trade....................................................$169,300 U.S. Court of Federal Claims............................................................$169,300 U.S. Bankruptcy Judges.....................................................................$155,756 U.S. Magistrate Judges (Full-Time).................................................$155,756

I N - D E P T H Summits, cont. from page 7 Court officials discussed the possibility of judges issuing release orders at least 10 days before their effective date as perhaps one way to avoid litigation over the proposed 10-day delay. The BOP also is the best source for information on an inmate’s conduct while incarcerated, a possible factor in sentence-reduction and release decisions. And for those cases in which a judge wants a hearing and wants the defendant to participate, most BOP facilities have videoconferencing capabilities that would allow such participation without the cost and disruption of travel. (The nation’s 4,000 deputy U.S. marshals and other law enforcement officers took federal inmates to court appearances 770,000 times in the past year.) Several court officials discussed in terms of “triage” the need to prioritize processing requests for sentence reduction in light of the anticipated

volume, but neither summit featured any hint of panic. “The sky is not falling. This is do-able. It can be done efficiently and fairly,” said Criminal Division Chief Linda Hoffa of the U.S. Attorney’s Office in Philadelphia. Hinojosa sounded a similar theme, stating, “There’s probably no one who can better handle quick changes in the law than the U.S. district courts.”

Most Bankruptcy Courts Offer Mediation “The beauty of mediation is that it can give those involved in a bankruptcy case a good feeling about the legal system,” Bankruptcy Judge Barry Russell (C.D. Cal.) said. “If you can help resolve your own dispute, you feel much better about the process and are much more likely to live up to the promises you make.” Mediation, defined as facilitated negotiation, is offered by more than two-thirds of the nation’s 90 federal bankruptcy courts. (An informal Federal Judicial Center survey places the number at 62, but notes that additional bankruptcy courts offer other forms of alternative dispute resolution other than mediation.) Those courts vary as to how they authorize and organize the mediation process, and there exists great variation in how frequently it is used. But the availability of mediation for creditors and debtors has drawn praise from judges and court staff alike. “It is a valued process,” said Chief Bankruptcy Judge Judith Wizmur (D. N.J.), whose court has offered mediation for over 10 years. “Use of mediation has not been particularly high, but it has proved to be very helpful in some cases.” Her court’s website encourages parties to use its mediation program “as a cost-effective means to settle disputes that may arise.” This site, at www.njb.uscourts. gov/mediation, also notes that, “Mediation is intended to afford litigants a less expensive and more expeditious alternative to traditional litigation. The mediator’s role is to assist the parties in reaching a negotiated settlement by conducting meetings, defining issues, defusing emotion, and suggesting possible ways to resolve the dispute.” See Mediation on page 10

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Mediation, continued from page 9 The U.S. Bankruptcy Court for the Western District of Pennsylvania’s website suggests that “almost all disputes are good candidates . . . . Mediation can be used in a wide variety of contested matters or adversary proceedings.” In the Central District of California, 3,759 matters have been assigned to mediation since Russell helped design and make the process available in 1995. About 64 percent of those matters were settled. “We have about 200 mediators, lawyers and non-lawyers, who have agreed to help resolve cases. The first day of their services is free, and rarely does a mediation go beyond that first day,” Russell said. Compensation for mediators varies among the courts, as do other aspects of their mediation programs, authorized by local rule, general order, or procedure. “Some bankruptcy courts began formally offering mediation in the 1980s, but the concept of negotiation, including facilitated negotiation, has always been present in expedited dispute resolution and plan formulation in bankruptcy courts,” said Robert Niemic, a senior research associate with the Federal Judicial Center and expert on mediation in bankruptcy. One of the newer programs is offered by the U.S. Bankruptcy Court for the District of Arizona, which began its Alternative Dispute Resolution (ADR) program in 2004. That court has had nine cases assigned to mediation in the past three years, and Bankruptcy Clerk of Court Terry Miller reports that “the reaction has been very positive within our legal community.” “The court worked very closely and very early on with the local bankruptcy bar to create a successful program,” Miller said. “A local ADR committee was created, and its membership consisted of judges, local attorneys, and clerk’s staff.”

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Likewise, Bankruptcy Clerk of Court Michael Dowling of the U.S. Bankruptcy Court for the District of Hawaii reports that nine matters have drawn mediation assignments in the past three years, with six of them settled. “Our judges promote mediation at the initial scheduling conference. Attorneys who are regular bankruptcy practitioners are aware of the program and generally are supportive,” Dowling said. “Some have volunteered as mediators for an initial four hours at no charge for services.” Mediation most often is voluntary—all parties to a dispute must agree to the mediation assignment and, in some courts, on the mediator. But most bankruptcy courts with mediation also have a provision for its mandatory imposition in certain disputes. In Russell’s court, a local rule allows mandatory use of mediation. “Mediation is a settlement process, and sometimes a judge can understand that, due to strategic reasons, the parties are unwilling to come forward and have the dispute mediated. Mandatory mediation does not occur too often, but it is available to the judge,” Russell said.

Funding for Courthouses in FY 08 Appropriations For fiscal year 2008, Congress included funding in the Consolidated Appropriations bill to complete new courthouse construction projects in Jefferson City, Missouri and Rockford, Illinois. Repair and alteration projects for the C. Clifton Young Federal Building and Courthouse in Reno, Nevada, and the Thurgood Marshall U.S. Courthouse in New York City, also were funded.


Local IT Initiatives Funded for FY 2008 Four information technology projects developed by federal court staff will receive funding in fiscal year 2008 from the Edwin L. Nelson Local IT Initiatives Grant Program. The IT grant program encourages and promotes local court technology innovations that can be shared with other courts. For FY 2008, there was a specific interest in grant proposals supporting judges’ work.

Michigan Eastern Criminal Information Repository (MECIR) The 2008 grant will allow the District Court and the Probation Office for the Eastern District of Michigan to develop the Michigan Eastern Criminal Information Repository. MECIR will replace the current manual process with a web-based application that develops the presentence reports provided to judges prior to sentencing. It also will enhance the existing automated system that creates the Judgment and Commitment order prepared by the courtroom deputy. MECIR’s centralized repository allows the extraction of case information from the Case Management system and defendant information from the Probation and Pretrial Services Automated Case Tracking System (PACT). Defendant information received from the U.S. Marshals Service is updated in MECIR, and automatically pushed to the PACT system. Judges, U.S. attorneys, defense counsel, and chambers staff are automatically alerted to each phase of the system. In addition, every transaction is time-stamped in the system to provide auditing of all processes and accountability. MECIR will provide efficient datahandling, eliminate data redundancy, maximize data integrity, improve communication flow, and add flex-

ibility in the preparation of reports and documents.

Pro Se “Three Strikes” Database With a FY 2008 Local Initiatives grant, the Ninth and Fifth Circuits will combine their efforts to design a tracking system for all pro se prisoner-filed cases dismissed for being frivolous or malicious, or for failure to state a claim for relief. Under 28 U.S.C. § 1915(g), prisoners who have three or more such dismissals may be denied requests for future in forma pauperis funding. Pro se clerks will be able to use this database as a Judiciary-wide reference tool to screen litigants who may have accumulated “strikes” in one or more federal court districts anywhere in the country. Currently, the Ninth Circuit has a database that went live early in 2007, and the Fifth Circuit has a tracking system, created by the Eastern District of Texas in the mid1990s, that monitors all Fifth Circuit prisoner litigants who have filed lawsuits deemed to have been frivolous. The circuits will collaborate on requirements and user needs, and share design and technical tasks to complete the project.

Automation Trainer’s Community of Practice The District Court for the Western District of Missouri, the District Court for the District of Nebraska, and the Bankruptcy Court for the Western District of Wisconsin have proposed a centralized storage place for existing desk side tutorials and education programs created within the courts. In this online Community of Practice, existing training materials could be shared and local experts or knowledge sources identified. The website will provide a place to discuss training issues and trends and post web logs about current training events, in addition to serving as a clearinghouse of materials and ideas that will reduce duplication of effort and encourage collaboration.

The Local Initiatives grant will fund the purchase of server hardware; the installation and configuration of community software for resource storage, discussion forums, e-mail subscription capabilities, member profiles and blogs; and the migration of the existing community data to the Judiciary’s secure Data Communications Network.

FAS4T Security Profile/Court Inventory Application The District Court for the Northern District of New York, and the district’s Office of Probation will receive a grant in FY 2008 to expand the capabilities of an automated inventory database application and a program that would generate self-populating FAS4T security profiles for all FAS4T users. Both the database and program were originally funded by a FY 2006 Local Initiatives IT grant. Currently, 73 court units use the inventory database application. Enhancements to the applications, prompted by court requests, include PDA functionality, an inventory import tool, an updated documentation and installation package, a comprehensive audit of all FAS4T users based upon assignment of authorities and roles, an ability to audit internal controls based upon duties not captured within FAS4T; tracking of audit histories with details on what issues were discovered and how they were resolved; and auditing by court unit type. The additional grant will allow the Northern District to build upon the initial success of the project and significantly enhance capabilities.

11 The Third Branch

n

February 2008


Senior Judges Continue to Provide Vital Help Year in and year out over the past decade, senior judges—those who opted for that status instead of retiring at full pay—have shouldered a significant share of the work of federal district and appellate courts. For the 12 months ending June 30, 2007, senior judges participated in 18.8 percent of all oral hearings and submissions of briefs in the appellate courts and terminated 18.2 percent of

all civil and criminal cases in district courts. Both percentages are up from those recorded in the previous 12 months—17 and 17.1. Congress in 1919 first authorized judges to retire at age 70 after 10 years of service, and to continue to retain the judicial office and perform duties in retired status. In 1948, Congress provided that judges retiring from active service would

continue to receive the full judicial salary. Six years later, the minimum retirement age became 65, with 15 years of service. A senior judge must do at least 25 percent of the work of an active service judge to keep staff and office space, but some judges continue carrying a full caseload after taking senior status.  

Work of Senior Judges 1998 1999 2000 2001 2002 2003 2004 2005 2006 Courts of Appeals Participations in Oral Hearings and Submissions on Briefs Percent of All by Senior Judges 15.9 15.1 16.4

15.9

15.8

16.9*

17.2

18.0

17.1

2007

18.8

District Courts All Civil Cases and Criminal Defendants Terminated Percent of All by Senior Judges 17.1 17.2

18.1

17.7

17.9

17.8

17.3

16.5

17.0

18.2

All Trials Conducted Percent of All by Senior Judges

20.7

19.2

18.2

18.4

19.1

19.0

17.9

17.2

18.3

19.8

All Hours in Trial Percent of All by Senior Judges

20.4

18.5

18.4

17.9

18.3

17.6

16.6

15.6

16.0

19.1

All Hours in Other Proceedings Percent of All by Senior Judges

20.7

19.8

19.5

19.2

19.6

19.9

18.9

17.4

18.0

19.0

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