THIRD BRANCH Planning and Foresight Put Court Back in Business After Flooding In Iowa Photo by Rob Phelps, Clerk of Court, Northern District of Iowa
Photo by Rob Phelps, Clerk of Court, Northern District of Iowa
The Cedar River poured over its banks last month, flooding much of downtown Cedar Rapids, Iowa, including the basement and first floor of the courthouse for the U.S. District Court for the Northern District of Iowa. The nearby bankruptcy court also was forced to evacuate its building due to flood waters. Read complete story on page 2
Congress Receives First Report Required by 2005 Bankruptcy Law The first annual report to Congress containing new bankruptcy statistics mandated by the Bankruptcy Abuse Prevention and Consumer Protection
Act of 2005 was filed by the Administrative Office in advance of the July 1, 2008 deadline. See First Report on page 4
House Appropriations Approves FY09 Funding................ pg. 5 New Executive Committee Members Named..................... pg. 5 Performance-Based Contract Awarded in BNC.................. pg. 7
Newsletter of the Federal Courts
Vol. 40 Number 7 July 2008
Federal Courts Hit Hard by Increased Law Enforcement on Border The five federal trial courts along the nation’s southwest border, for years coping with bulging criminal dockets, are feeling the impact of newly stepped-up enforcement of immigration laws. “The surge in new immigration cases brought by the Department of Justice . . . is increasing the caseload of the federal judges along the border—especially the magistrate judges—and the need for additional court staff, official court interpreters, defense lawyers, and courtroom space,” states a new Administrative Office report to Congress. Financial resources are not currently a problem. “Thanks to help from Congress in the past two years, the Judiciary is in a financial position to respond promptly to additional resource needs,” the report said. However, other obstacles to such a response have risen. “The federal courts have very limited control over the nature and the volume of their caseloads,” the report noted. “When the DepartSee In-Depth on page 9
Iowa continued from page 1 On Monday June 23, 2008, Chief Judge Linda Reade in the Northern District of Iowa gave members of the bar tours of her new court facility, a one-story brick building in an industrial park several miles south of Cedar Rapids, Iowa. Around her, painters were still painting, electricians were still wiring, and court staff were working on folding tables. But the court was fully operational. In fact, Magistrate Judge Jon Scoles already had held a hearing. “I think that a lot of people in our community are suffering,” Reade said. “I think that the fact that we’re up and running will be a cause for optimism in the community.” Just two weeks earlier the district court had evacuated its riverside courthouse as the Cedar River topped its levees and flooded 9.2 square miles of the city. On Monday, June 9, 2008, the National Weather Service had predicted the Cedar River would crest at 21 feet, higher than during the devastating 1993 floods. On Tuesday, June 10, the prediction went to 24 feet. With more rain on the way, and a predicted crest Wednesday at 28 feet, “We implemented our Continuity of
As soon as the flood waters receded, computers and usable equipment were retrieved from the upper floors of the district courthouse.
Operations Plan and told our staff to stay home,” said Clerk of Court Robert Phelps. The U.S. Bankruptcy Court for the Northern District of Iowa, located just a few blocks away, also implemented its COOP. The district court’s website and its Case Management/Electronic Case Files system were transferred to a national server, and the court’s own CM/ECF server was sent to the Sioux City courthouse location for safety.
The first floor of the district courthouse was flooded with over four feet of water. Inside, the force of the flood ripped doors off their hinges. Outside, the current tore out plantings and gouged holes in the soil around the courthouse foundation.
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Websites for both the district and the bankruptcy courts announced the temporary closure of their respective courts, while reassuring attorneys that, “Throughout this COOP response/ period of closure, the court’s electronic CM/ECF will remain available for electronic filing and research.” By Thursday morning, June 12, the courthouse was an island in a river. The Cedar River eventually crested Friday, June 13 at 31 feet, well beyond the 500-year floodplain. All court facilities in Cedar Rapids suffered significant water damage, with water filling the basement and the first 4’4” of the first floor of the U.S. courthouse. “On the following Tuesday and Wednesday, with the river down, we were able to enter the courthouse,” Phelps recounts, “and pull usable equipment from the second and third floors.” The Probation Office on the first floor had been completely flooded. “The sandbagging we thought would keep us safe was exceeded, so I anticipated severe damage,” said Chief Probation Officer Robert Askelson. “But we saved the computer server, we have everything backed up, and we hope to salvage some of the paper files.”
Clerk of Court Robert Phelps (photo right) and Chief Deputy Clerk Renea Solmonson (photo left) with docket clerks in the background worked at folding tables until leased furniture could be delivered.
GSA initially estimated the courthouse might be closed for at least six months. But by Monday, June 16, just two working days after implementing its COOP, the district court announced they were back in business at a new location. Even before the water receded, GSA located temporary spaces for the district and bankruptcy courts approximately five miles from the flooded courthouse. Folding tables and chairs were set up until leased furniture could be delivered. Kathy Desmond, from the Administrative Office’s Office of Facilities and Security, flew to Cedar Rapids to help with the relocation arrangements. Meanwhile, the AO’s Judiciary Emergency Response Team (JERT), which had met throughout the crisis, assisted the court with emergency procurement authority, took the first steps to supply secure Data Communication Network lines to the new location, and worked with the U.S. Marshals Service to provide security both to the closed courthouse and to the new facilities. On June 17, Cedar Rapids court employees were asked to report for work at the new facility. Before evacuating the downtown courthouse, Askelson asked probation
and pretrial officers to review which residences for released offenders would be affected by the flooding. “Our officers are out in front of those cases, as well as for the pretrial and post-conviction cases,” he said. “Officers have access to the Probation/Pretrial Services Automated Case Tracking System and phone contact is being made with every
offender. Visits to offenders will continue if the roads are passable.” “All our staff are working or able to work remotely,” said Askelson. “Thank goodness that we planned purchases over the last couple of years of laptops, wireless cards and smart phones for each officer and some administrative staff for normal work and for COOP reasons.” Two Eighth Circuit Court of Appeals judges who had been displaced by the flood also found temporary quarters. After working from his home for several days, Judge Michael J. Melloy now has space at a local law school until August. Judge David R. Hanson temporarily has gone to St. Louis, but Phelps hopes to set up chambers for him in soon-to-be-delivered trailers. “It has been unbelievable how everyone has pulled together,” said Phelps. “It has been stressful, but our COOP worked fine. Having tested our COOP operations a month earlier, the staff has stepped up and performed like champions. We’ve had an EAP counselor in to talk with See Iowa on page 7
Less than two weeks after evacuating their courthouses, the district and bankruptcy courts were back in business. Magistrate Judge Jon S. Scoles conducts a hearing in the court’s temporary quarters.
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First Report continued from page 1 The 2005 law requires bankruptcy courts to collect statistics on debtors who meet certain criteria. The Judiciary data systems in place when the law was enacted could not capture all the required information. Consequently, a whole new system and software had to be built, and the Judiciary began collecting the mandated data on October 17, 2006. The data in this inaugural report represents cases filed or closed during calendar year 2007. Although all cases filed in 2007 are included, the number closed is limited to those commenced after October 17, 2006 and closed during the calendar year. “The primary consequence of this limitation is that data . . . based on cases closed during the reporting period may not be typical for a calendar year period,” the report states. “The results . . . primarily will be based on shorter-duration cases than would typically be included, but will exclude many of the longer-duration cases opened prior to October 17, 2006, that otherwise would have been included had this limitation on the filing date not been necessary.” For example, a typical chapter 13 case, in which individuals with regular income and debts below a statutory threshold make installment payments to creditors under a courtapproved plan, often lasts three to five years. The report offers statistics about debtors—such as their reported assets and liabilities, and income and expenses—for the nation as a whole, as well as by judicial circuit and district. Those data, however, are provided exclusively by the debtors at the time of filing a bankruptcy petition, or within 15 days of that filing. The courts cannot verify the numbers. Nationwide, consumer debtors seeking bankruptcy protection reported holding total assets of more than $108 billion and total liabilities of more than $139 billion. Real property (land and homes)
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accounted for 77 percent of the reported assets, and personal property the other 23 percent. Of debts owed, 64 percent were categorized as secured claims such as homes and cars, 2 percent as unsecured priority claims, and 34 percent as unsecured non-priority claims. Overall, debtors categorized 96 percent of their reported debts and obligations as dischargeable (that which should be forgiven). In chapter 13 cases, debtors filing consumer cases reported total assets of $55.5 billion and total liabilities of $54.7 billion. About 13 percent of the consumer cases terminated in 2007 were filed under chapter 13. Far more cases—86 percent of consumer bankruptcy cases terminated in 2007—were filed under chapter 7, in which a debtor’s assets are sold to raise cash for creditors. Debtors in consumer chapter 7 cases reported total assets of more than $51 billion and total liabilities of $83.1 billion. In the 798,370 consumer cases filed in 2007, debtors reported a median average monthly income of $2,490, and median average monthly expenses of $2,433. (The “median average” statistic is the middle point of such averages.) Among the 480,635 consumer bankruptcies filed under chapter 7, the median average monthly income was $2,150, and the median average monthly expenses $2,405. Among the 317,148 consumer bankruptcies filed under chapter 13, the median average monthly income was $3,146, and the median average monthly expenses $2,482. Bankruptcy courts in 2007 disposed of 391,071 consumer cases that met the criteria for inclusion in the report—337,467 under chapter 7 and 53,465 under chapter 13. Only 139 were disposed of under chapter 11, which like chapter 13 involves a reorganization of a debtor’s financial affairs and most often is used by corporations and other business entities.
The average time interval from filing to disposition was 124 days in chapter 7 cases; 155 days in chapter 13 cases. The average time intervals for chapter 13 cases will surely increase in the future, because of the previously mentioned reporting limitations of this first report. The 2005 law requires tracking “the number of cases in which creditors are fined for misconduct and any amount of punitive damages awarded by the court for creditor misconduct.” But creditor misconduct is not a specific cause of action under federal bankruptcy law, and at least five violations of the Bankruptcy Code could be considered as creditor misconduct. “As a consequence,” the report says, “what may be reported as creditor misconduct in one district may not be so reported in another.” In any event, three consumer cases terminated in 2007 are cited in which creditors were ordered to pay punitive damages, for a total of $11,250. Likewise, the number of cases in which court sanctions were imposed against debtors’ attorneys were very low. The report cites only five such cases.
The 2007 Report of Statistics Required by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 is available at http://www.uscourts.gov/ bnkrpctystats/2007/BAPCPAstats.html.
New Executive Committee Members Named Two new members have been appointed by Chief Justice John Roberts Jr. to the Executive Committee of the Judicial Conference. Chief Judge David B. Sentelle (D.C. Cir.) and Judge Alan B. Johnson (D. Wyo.) replace outgoing committee members Judge Michael Boudin (1st Cir.) and Judge Thomas F. Hogan (D.D.C.). Both Johnson and Sentelle are currently members of the Judicial Conference. Johnson is the district court representative to the Judicial Conference from the Tenth Circuit. He was appointed to the federal bench in 1985. Sentelle also was appointed to the federal bench in 1985, and was elevated to the D.C. Circuit in 1987. He served as the chair of the Judicial Conference Committee on Judicial
Security, and has served as a member of both the Committee on Codes of Conduct and the Committee on Court Administration and Case Management. The seven-member Executive Committee serves as the senior executive arm of the Conference and is authorized to act on behalf of the Conference, if necessary, between its biannual sessions. In addition to Johnson and Sentelle, the members of the Executive Committee are Committee chair Chief Judge Anthony J. Scirica (3rd Cir.), Chief Judge Danny J. Boggs (6th Cir.), Judge Charles R. Breyer (N.D. Calif.), Chief Judge Paul R. Michel (Fed. Cir.), Judge Lawrence L. Piersol (D. S.D.), and ex officio member, James C. Duff, Director of the Administrative Office.
House Appropriations Committee Approves FY 09 Funding
FY 2009 appropriations process could extend into next year because of spending differences between Congress and the President. “There is a growing consensus that most and likely all FY 2009 appropriations bills will be delayed until a new Administration takes office,” Duff said, “meaning the Judiciary could be under a continuing resolution through February or March of 2009.” “Courts are encouraged to continue hiring staff this fiscal year as workload needs necessitate and current funding allocations allow,” Duff continued. “There will be sufficient funding under a continuing resolution to maintain these new staff.” In addition to $4.8 billion for the Salaries and Expenses account, the House bill would fund the Defender Services account at $863 million. This
The House Appropriations Committee approved the Judiciary’s fiscal year 2009 appropriations bill at the end of June and it was good news for the courts. Overall, the Judiciary received $6.52 billion, a 4.5 percent increase over the FY 2008 level. For the Salaries and Expenses account that funds court operations, this amounts to a 4.6 percent increase. The Senate Appropriations Subcommittee on Financial Services and General Government is expected to mark up its version of the Judiciary’s appropriations bill in mid July. Administrative Office Director James C. Duff cautioned that the
Judge Alan B. Johnson (D. Wyo.)
Chief Judge David B. Sentelle (D.C. Cir.)
would include a 10 percent increase in the panel attorney non-capital rate to $110 per hour in FY 2009. Both the Court Security account, which received $430 million, and the Fees of Jurors account, at $62 million, would be fully funded. The House bill also includes funding for the General Services Administration, which builds the Judiciary’s courthouses. The bill would provide funding for the San Diego courthouse project to cover a cost overrun as well as funding for repair and alterations projects for the Everett M. Dirksen U.S Courthouse in Chicago, Illinois, and the New Bern, North Carolina U.S. Post Office and Courthouse. The White House did not request, nor did the House fund, any of the projects on the Judiciary’s FY 2009 courthouse construction plan.
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BNC PerformanceBased Contract Awarded A new contract to mail more than a billion bankruptcy notices over ten years will save the Judiciary millions of dollars, even while it provides financial incentives for the contractor to offer new features, more efficiencies, and improved customer service. Beginning in October 2008, BAE Systems Information Technology, Inc. (BAE) will run the Judiciary’s extensive Bankruptcy Noticing Center (BNC) program under a performance-based contract. “This type of performance-based contract is not new to the federal government,” said Bill Redden, bankruptcy clerk of court for the Eastern District of Virginia. Redden chaired the BNC Technical Evaluation Board that oversaw the contract’s development. “But the new BNC contract is very innovative for the federal Judiciary. The end result is a mechanism to encourage ongoing innovation and the adoption of new technology and processes by the BNC contractor.” The BNC electronically retrieves data from the bankruptcy courts’ case management systems and prints, addresses, batches and mails over 120 million bankruptcy notices annually. An Electronic Bankruptcy Noticing (EBN) program also sends electronic notices directly to recipients, eliminating paper notices and their postage costs. As of May 2008, over 16 percent of all BNC-produced notices were transmitted electronically. Every bankruptcy court in the country uses the BNC program. BAE has successfully operated the BNC program nearly from its inception in 1994, but the new contract is a significant departure from any previous agreements. Based on the
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Judiciary’s evaluation of BAE’s effectiveness, innovation and quality of performance, the contractor will be eligible for up to $2.3 million per contract year in award fees. “While the BNC contractor has an additional measure of encouragement through the Award Fee Plan to institute improvements,” said Redden, “the Judiciary also shares in the financial benefits. The return on investment to the federal courts will greatly exceed any award fees paid.”
To earn an award fee under the Plan, the BNC contractor will be evaluated on, among other categories, customer service responsiveness, the timely and correct retrieval, preparation and mailing of paper notices, growth of the EBN program, and the introduction of operational and economic efficiencies. Conversely, failure to meet performance standards results in deductions from payments. Through this performance-based contract—which is priced approximately 36 percent below current contract rates—and a series of scheduled price reductions over the next decade, the Judiciary could realize, assuming a 10 percent annual increase in BNC program usage, a ten-year reduction in contract rates
of over $50 million. This is on top of the approximately $67 million the Judiciary has saved since 1994 for combined salaries, supplies, postage, and equipment savings over court-based noticing. Additionally, a number of new features and enhancements will be made in BNC program operations. Although the new contract begins October 1, 2008, some features are expected to debut this summer. Significant cost savings will be realized when BAE improves address matching for higher EBN and U.S. mail notice delivery rates, and when joint debtors at the same address are sent one notice, eliminating duplicate notices. BAE will provide a complete online sign-up process for creditor registration of preferred e-mail and/or U.S. mail address, reducing barriers to program participation. “We are encouraging the contractor to more vigorously pursue increased participation in EBN,” said Redden. “We see a number of savings, including postage savings, with more notice recipients who accept notices in electronic form.” The BNC contractor will add text alert messaging to notify court staff of problems with data retrieval and implement an intrusion detection system to monitor activity and prevent theft of proprietary information, financial fraud, insider network abuse, virus and worm attacks, denial of service incidents, and system penetration by outsiders. “The process in the development of this contract was a lengthy one,” said Redden, “and we’re very pleased with the outcome.”
Judicial Confirmations at Center of Cancelled Hearing A scheduled Senate Judiciary Committee hearing on S. 2774, the Federal Judgeship Act of 2008, was suspended in mid-June as Republicans invoked a rule that no committee of the Senate may meet more than two hours after the start of a Senate floor session without the consent of the majority and minority leaders. Minority Leader Mitch McConnell (R-KY) objected to the pace of confirmations for court of appeals judges. The rule has been invoked with regard to other Senate Judiciary Committee business in recent weeks. Judge George Z. Singal, chair of the Judicial Conference Committee on Judicial Resources who had been prepared to testify at the June 17th hearing, instead submitted his written testimony and responded to written questions from the Judiciary Committee. The Judiciary Committee recently voted 15-4 in favor of S. 2774, which would create 66 judgeships in the courts of appeals and district courts, and also reflects all outstanding Article III judgeship recommendations of the Judicial Conference. Although Congress created a small number of judgeships in the district courts in recent years, no additional appellate judgeships have been created in nearly 18 years. In that time, federal court case filings have grown by double digits, making passage of new comprehensive judgeships legislation essential.
Iowa continued from page 3 people individually and as groups to discuss the stress involved. I could not be more proud of the employees’ response and enthusiasm to get operational.” Courts from around the country have pitched in. “The court in New Orleans sent an email with 20 administrative orders developed after Katrina to deal with things like Speedy Trials and motions for continuance,” Phelps said. (Sample orders also are posted on the Judiciary’s Emergency Preparedness intranet website.) The court had offers from volunteers around the country to help remotely with electronic docketing.
Judge George Z. Singal, chair of the Conference Committee on Judicial Resources, (photo left) confers with AO staff while waiting for word on whether the Senate hearing would occur.
The Southern District of Iowa sent IT staff to assist, and an architect who is assisting District of Minnesota with their renovation project came to help plan renovations to facilities. “We’re a little cramped here,” Phelps said, “but we’re still doing everything we’d normally do. We’ll be getting some trailers for overflow, and GSA is leasing a contiguous building in case we are here long term.” It won’t be known for about 30 days when, or if, the flooded courthouse will be habitable. Depending on that answer, the court may be in its temporary quarters anywhere from six months to several years. “It was sobering to see the high water mark on the side of our court-
house,” Reade said. “We knew the river was going to go to flood stage, but we never dreamed it would go as high as it did. I am very thankful because everyone survived and we saved most of the equipment and our records. I’m very optimistic about our court’s ability to recover.”
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Appointed: David Gregory Kays, as U.S. District Judge, U.S. District Court for the Western District of Missouri, June 19.
U.S. District Court for the Eastern District of California, succeeding U.S. District Judge Garland E. Burrell, Jr., June 1.
Appointed: Mark S. Davis, as U.S. District Judge, U.S. District Court for the Eastern District of Virginia, June 23.
Elevated: U.S. Bankruptcy Judge Paul J. Kilburg, to Chief Judge, U.S. Bankruptcy Court for the Northern District of Iowa, succeeding U.S. Bankruptcy Judge William L. Edmonds, May 1.
Appointed: William T. Lawrence, as U.S. District Judge, U.S. District Court for the Southern District of Indiana, July 1. Appointed: G. Steven Agee, as U.S. Court of Appeals Judge, U.S. Court of Appeals for the Fourth Circuit, July 2. Appointed: Caryl E. Delano, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Middle District of Florida, June 25. Appointed: Erik P. Kimball, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Southern District of Florida, June 23. Elevated: U.S. Court of Appeals Judge Sandra L. Lynch, to Chief Judge, U. S. Court of Appeals for the First Circuit, succeeding U.S. Court of Appeals Judge Michael Boudin, June 16. Elevated: U.S. District Judge Anthony W. Ishii, to Chief Judge,
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. Bankruptcy Judge Thomas L. Saladino, to Chief Judge, U.S. Bankruptcy Court for the District of Nebraska, succeeding U. S. Bankruptcy Judge Timothy J. Mahoney, July 1.
EDITOR-IN-CHIEF David A. Sellers MANAGING EDITOR Karen E. Redmond PRODUCTION Linda Stanton
Retired: U.S. Magistrate Judge Eugene M. Bogen, U.S. District Court for the Northern District of Mississippi, May 31. Retired: Correction: United States Magistrate Judge John Forster, Jr., U.S. District Court for the Eastern District of Arkansas, May 9. Resigned: Correction: United States Part-Time Magistrate Judge Mary E. Guss, U.S. District Court for the District of Alaska, May 21. Deceased: Senior U.S. Court of Appeals Judge Warren J. Ferguson, U.S. Court of Appeals for the Ninth Circuit, June 25.
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 July 1, 2008 Courts of Appeals
Supreme Court Fellows Named for 2008-2009 Four Supreme Court Fellows have been named for the 2008-2009 program. Timothy F. Averill, an administrator and general counsel for the Louisiana Supreme Court, will be assigned to the Administrative Office; Melissa Aubin, a staff attorney for Magistrate Judge Thomas M. Coffin in the District of Oregon, will serve at the Supreme Court; Benjamin McMurray, from the Utah Federal Defender’s Office, will be assigned to the U.S. Sentencing Commission; and Shawna Wilson, a senior rule of law advisor for the U.S. Agency for International Development, will participate in the program at the Federal Judicial Center. The Supreme Court Fellows Program was founded by Chief Justice Warren Burger to provide fellows a firsthand opportunity to study both the administrative machinery of the federal Judiciary and the dynamics of interbranch relations.
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Courts with “Judicial Emergencies”
31 17 13
For more information on vacancies in the federal Judiciary, visit our website at www.uscourts.gov under Newsroom.
I N – D E P T H continued from page 1 ment of Justice files a criminal case, it gives rise to a series of court proceedings and events in the courts that require both the attention of judicial personnel—judges, district clerk’s office personnel, pretrial services and probation officers, court reporters, court interpreters, and federal defenders—and the expenditure of funds.” The report added: “The Judiciary is responding broadly and promptly to the needs of the courts flowing from Operation Streamline II and other recent prosecution initiatives. Short-term caseload surges can and are being addressed effectively by redeploying existing judges and court staff on a temporary basis, borrowing judges from other districts, or recalling retired magistrate judges. But as stepped-up law enforcement and caseload increases continue, more permanent measures need to be taken.” The report said that the 2009 national judgeship survey is underway, and that the five southwest border courts have submitted requests for 14 additional district judgeships. In addition, several of the courts have asked, or are considering requests, for additional magistrate judge positions. Additional deputy clerks, probation and pretrial services officers, and court interpreters also have been requested, and federal defender offices along the border will need more attorneys and other resources. But courts may not be able to fill positions quickly with qualified and capable candidates. “Many positions require special skills and training— especially probation and pretrial services officers, information technology staff, official court reporters, and official staff interpreters. The local labor pool is not sufficient at each location along the border to meet the demand, and it is difficult to persuade
candidates from other parts of the country or state to relocate to a border location,” the report said. Recruitment and retention problems are exacerbated “because many employees at border locations are experiencing burnout due to the nature and sheer volume of the work.” One resource problem in particular is “much more difficult to resolve—the shortage of courthouse and detention facilities at several locations along the border,” the report said. “There are simply not enough jail beds, holding cells, courtrooms, and related court facilities along the border to handle all the cases that the government would like to prosecute under Operation Streamline II and other initiatives. New courthouses are under construction at El Paso, Texas and Las Cruces, New Mexico, but the new courthouse at San Diego is on hold, and additional court facilities are needed at Yuma, Arizona.” The judicial districts along the 1,989 mile border the United States shares with Mexico—Arizona, the Southern District of California, New Mexico, and the Southern and Western Districts of Texas—have experienced explosive growth in the number of criminal case filings since the mid-1990s. While criminal case filings grew by 27 percent in the 94 district courts nationwide, they grew by 172 percent in the five southwest border districts. Two categories of crimes dominate those courts’ dockets—drugs and immigration. Together, they accounted for more than 82 percent of the offenses charged (other than misdemeanors) in 2007. By comparison, drug and immigration cases accounted for 43 percent of the criminal caseload in the 89 other district courts. Virtually all drug cases are charged as serious crimes—felonies
punishable by long prison terms. Immigration offenses, however, may be treated differently, and are charged as felonies if they involve illegal re-entry into the country after deportation, the smuggling of illegal immigrants, or illegal immigrants with prior criminal records. Felony cases must be heard and sentenced by district judges, although magistrate judges conduct various initial proceedings in them. Most immigration cases now in federal courts involve the unauthorized entry into the United States, and are charged as misdemeanors, punishable by no more than six months’ imprisonment. These cases may be heard and disposed of by magistrate judges, and it is common along the southwest border for government prosecutors to charge many defendants in the same case for en masse processing. Historically, the overwhelming majority of persons entering the country illegally, particularly those coming only to seek employment, have not been charged criminally. A person who entered the United States illegally but had no other criminal charge pending typically was “voluntarily returned” to Mexico more than a dozen times before facing the charge of illegal entry. Some did not get into federal court until they had amassed 60 voluntary returns. Some recent law enforcement initiatives have changed that practice. One such initiative, Operation Streamline II, is designed to handle a substantially increased volume of immigration cases in expedited fashion. Launched in late 2005 in the Del Rio sector of the border in the Western District of Texas, Operation Streamline II was intended to deter illegal entry. The initiative recently See In-Depth on page 10
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I N – D E P T H continued from page 9
District of Arizona
was introduced in Tucson, Arizona, the busiest sector along the southwest border. Under it, virtually all persons apprehended for an unauthorized entry into the country face criminal charges, most often misdemeanor offenses rather than felonies. The cases are prosecuted by Border Patrol attorneys who serve as special assistant U.S. attorneys. They ask the courts to impose a jail term on each apprehended illegal immigrant while simultaneously initiating deportation proceedings. A misdemeanor charge punishable by up to six months imprisonment, unlike a felony charge, carries no requirement for indictment by a grand jury and no right to a trial before a district judge. Most defendants plead guilty because the
evidence against them for being in the country without authority is compelling. Magistrate judges preside over these cases, and they may in some circumstances combine the initial appearance, arraignment, plea acceptance, and sentencing into a single courtroom proceeding. The judge also must ensure that due process is observed, that each defendant is treated with dignity, receives a competent lawyer’s advice, understands the nature of the proceeding, and that each guilty plea is made knowingly and voluntarily. Any defendant who wishes to plead not guilty or assert a right is removed from the expedited process and put on the regular prosecution track.
Defendants Charged in the Border District Courts Border Courts: 1994 2003 2004 2005 Arizona 1,454 5,443 5,682 5,192 California, Southern 2,266 4,006 3,862 2,892 New Mexico 1,161 2,816 3,033 3,342 Texas, Southern 2,220 5,768 6,639 7,271 Texas, Western 2,011 5,798 6,274 6,631 Total 9,112 23,831 25,490 25,328 Non-Border Districts 53,844 68,883 67,859 66,898 Nation 62,956 92,714 93,349 92,226
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2006 4,303 3,180 3,235 6,372 6,557 23,647
2007 5,148 3,853 2,733 6,297 6,790 24,821
In Arizona, two thirds of the district court’s criminal docket arises in Tucson. The district’s criminal caseload has grown by 154 percent since 1994, and is one of the highest in the nation. (The five district judges at Tucson presided over a per-judge average of 540 sentence proceedings in 2007, six times the national average.) The Tucson sector—262 miles of border—is known as the nation’s major corridor for marijuana smuggling. Immigration-related offenses loom large as well. In fiscal year 2007, Border Patrol agents arrested 378,000 people in the sector for being in the country illegally. Fewer than one-half of 1 percent (.005) of those persons were actually prosecuted. The relatively low percentage of prosecutions appeared to have been the product of a temporary shortage of assistant U.S. attorneys in the U.S. attorney’s Tucson office, which now anticipates bringing at least an additional 40 felony cases per month. And Operation Streamline II petty offense cases are being prosecuted by Border Patrol lawyers on loan. “Operation Streamline II began in the Yuma sector in December 2006 and in the Tucson sector in January 2008,” the AO report said. “The Border Patrol has proposed filing 26,000 petty and misdemeanor offenses a year in the Tucson division at this time, or 100 per work day added to the court’s normal daily docket. Ultimately, the goal of the Border Patrol is to prosecute an additional 700 defendants a week, or 36,000 new cases a year.” Those numbers are expected to exacerbate serious space limitations that already exist in Tucson and Yuma. The AO report said: “The court needs additional resources to handle the surge of additional cases that the U.S. attorney is now filing in Tucson and Yuma.”
U.S. District Courts Affected
San Diego El Centro
El Paso U.S. District Courts Affected CA-S (courts in San Diego and El Centro) – Border patrol sectors: San Diego, El Centro AZ (courts in Tucson, Magistrate Judge in Yuma) – Border patrol sectors: Yuma, Tucson NM (courts in Las Cruces) – Border patrol sector: El Paso
Alpine Del Rio Eagle Pass Laredo
TX-W (courts in El Paso, Alpine, Del Rio) – Border patrol sectors: El Paso, Marfa, Del Rio TX-S (courts in Laredo, McAllen, Brownsville) – Border patrol sectors: Laredo, McAllen
Southern District of California Felony criminal filings per judgeship in the Southern District of California are among the nation’s highest, having grown by 154 percent between 1994 and 2007. In 2007, prosecutions rose from 3,180 to 3,853, and the increase is continues in 2008. A program akin to Operation Streamline II, called Operation Arizona Denial, is in place in the eastern-most 10-mile stretch of the district. First-time illegal entrants with no prior criminal history who are apprehended by agents of the Yuma Sector of the Border Patrol are brought to Yuma, Arizona, and prosecuted there, rather than in the Southern District of California, for misdemeanor violations. Because of a lack of jail space, the U.S. Marshals Service currently
houses in Arizona about 200 defendants who have cases pending in the Southern District of California. “This presents difficult logistical problems for the local marshals in having to continuously move defendants back and forth between the holding facilities and the courthouse,” the AO report said.
District of New Mexico By the end of fiscal year 2008, the Border Patrol is expected to have increased its staff in New Mexico from 1,170 to 1,702—resulting in 170 more arrested individuals arriving each week at the federal courthouse in Las Cruces. That’s a 100 percent increase over FY 2007. The vast majority of the increase in arrests will be for the misdemeanor of illegal entry.
In New Mexico, Operation Streamline II is known as Operation Lock Down. Before that initiative began earlier this year, magistrate judges in Las Cruces had disposed of about 150 misdemeanor offenses per month, in addition to handling a heavy caseload of preliminary hearings in felony cases. The misdemeanor caseload has doubled under Operation Lock Down, and the Border Patrol has requested that they handle an additional 180 misdemeanors each month. To accommodate the increased caseload, the court may have to transfer more felony cases to Albuquerque. In 2007, the court transferred about 600 felony cases from Las Cruces after initial appearances there because of a lack of courtroom space in Las Cruces. The increase in misdemeanor cases will continue to have a major impact on pretrial services officers. Currently, an officer typically spends about 2½ hours each day in court for initial appearances, preliminary hearings, pleas and sentencings before magistrate judges. That amount of time could easily double.
Southern District of Texas While judges in Houston carry a large and complex caseload of civil cases, the great majority of the court’s criminal cases are filed in Laredo, McAllen, Brownsville, and Corpus Christi. The district has 14 magistrate judges—five in Houston, one in Galveston, and two each in Corpus Christi, Laredo, Brownsville, and McAllen. Operation Streamline II began in Laredo in November 2007, when the two magistrate judges there typically handled 90 misdemeanor immigration cases a week. Now they are handling up to 400 a week. Because the court’s heavy felony caseload at See In-Depth on page 12 The Third Branch
I N – D E P T H continued from page 11 Laredo has not declined, those magistrate judges also have had a substantial workload of preliminary proceedings in felony cases. The clerk of court will need to increase staff to support the workload resulting from Operation Streamline II. It is estimated that for every additional 600 misdemeanor cases filed per month, one additional deputy clerk position will have to be allocated to support the work of the magistrate judges. Pretrial services and probation officers also have felt the impact, not only in Laredo but also in Brownsville and McAllen, where felony prosecutions have increased. For example, pretrial services investigations increased by 19 percent in Brownsville and by 29 percent in McAllen
in 2007, compared to a district-wide increase of 7 percent.
Western District of Texas Criminal defendant filings peaked in 2007, when they were 238 percent higher than in 1994. The two divisions directly on the border—El Paso and Del Rio—accounted for twothirds of the district’s felony criminal filings. Operation Streamline II was launched in late 2005 on a one-mile stretch of the border near Eagle Pass in the Border Patrol’s Del Rio Sector, and was later expanded to cover the entire 200-mile Del Rio Sector of the border. The two magistrate judges in Del Rio initially saw their misdemeanor immigration case-
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load jump 350 percent. But after more than two years of the initiative, apprehensions and prosecutions have decreased significantly, “due in large part to the success and deterrent effect that increased law enforcement activity by the Border Patrol has had.” Operation Streamline II was initiated in El Paso last February under the name Operation No Pass. Space is very limited in the federal courthouse in El Paso, but a new state-ofthe-art courthouse is expected to be completed by May 2009.
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