2011-05 May by United States Courts

Newsletter of the Federal Courts

Vol. 43 Number 5 May 2011

Best Use of Jurors Improves Jury Experience

ot only is May the month Law Day is observed, it also is Juror Appreciation Month—presenting an opportunity to take a look at how courts manage what Justice John Marshall Harlan called “one of the principal excellencies of our Constitution,” the jury system. Last year, 59,405 American citizens served on federal petit juries, with a national average of 39 percent of jurors not selected, serving, or challenged on the first day of service. This is down from 40 percent in 2009, and represents a savings of more than $224,000 in juror costs.

hen your spring garage or attic cleaning freed up much needed space, it’s likely it also turned up mementos to save. In a sense, the Judiciary is cleaning house and also putting aside important papers. The National Archives and Records Administration (NARA), the agency charged with storing the government’s records, is working with the Judiciary to review millions of federal court cases accumulated since the 1970s at the Federal Records Centers (FRC) located throughout the country. At the same time, the Judicial Conference is asking judges to do their part to make sure the historically

The Judiciary continually looks for ways to improve jury service and maximize the use of potential jurors who are called for duty. In all, 56 of the 94 federal court districts improved their percentages of jurors not selected, serving, or challenged in 2010. Nine districts improved by 10 percent or more. They are the District of Alaska, the Northern and Southern Districts of Alabama, the Southern District of Georgia, the Western District of Kentucky, the Western District of North Carolina, the Western District of Oklahoma, the Eastern District of Wisconsin, and the District of Wyoming. The Judiciary continually looks for ways to improve jury service and maximize the use of potential jurors who are called for duty— cutting costs and enhancing a juror’s court experience. How citizens who are called for jury service view that encounter depends on

Making Room, Saving History

how effectively courts manage their experience before, during, and after service. With this in mind, Judge Julie A. Robinson, chair of the Judicial Conference Committee on Court Administration and Case Management, asked the Federal Judicial Center (FJC) to convene a series of jury workshops for the federal trial courts. The number of workshops will depend on funding.

Continued on page 4

INSIDE Interpreting: An Every-Day Event.............. 3 Parole in the Federal System....................... 5 Judiciary Split on Rule 16 Change.............. 6

Continued on page 2

interview

A Critical Time for Bankruptcy

udge Joy Flowers Conti talks about a critical time for the bankruptcy court system —the rise in the number of bankruptcy filings, the impact on bankruptcy judges, and what needs to be done to continue to meet the needs of justice. Read Judge Conti’s interview on page 10.

treason, national security, family farm and historic bankruptcy cases, and death penalty habeas corpus cases. Judges and clerks of court also are asked to designate cases that: ■■ Involved a lawyer, litigant, or witness of historical interest or importance; ■■ Involved an issue of historical interest; ■■ Involved a matter of national interest separate from the issues in the litigation; or ■■ Received substantial media attention at the time. To date, 13 district courts and 23 bankruptcy courts have completed their identification of historic case files.

Making Room, Saving History continued from page 1

significant case documents among these files are retained. By law, NARA is statutorily obligated to charge the Judiciary a fee for storage and last year storage cost the Judiciary over $6.2 million. “Records had accumulated for decades and had become an unmanageable mass,” said Judge Steven Merryday (M.D. Fla.), then chair of the Records Subcommittee, part of the Judicial Conference Committee on Court Administration and Case Management (CACM). “With the potential of rising storage costs, we were facing catastrophic budget consequences.” Merryday’s subcommittee began by looking for ways to preserve what needed to be kept and what could be disposed. They sought the advice of the head of the National Archives and court representatives. The subcommittee went over, code by code, what would be found in a file, and agreed on what should be preserved. Then they made their recommendations to the full CACM Committee and then to the Judicial Conference.

... as the new records schedule and the reappraisal of old files is fully implemented, it is estimated the Judiciary will save $35 million. Beginning in 2011, with Conference approval, NARA reduced the amount of time that case files are stored at FRCs. The majority of non-trial cases will be disposed of after 15 years. Over that same time period, as the new records schedule and the reappraisal of old files is fully implemented, it is estimated the Judiciary will save $35 million. “I credit Judge John Tunheim, the past chair of the CACM committee, Noel 2

The Third Branch n May 2011

Augustyn Assistant Director of the AO’s Office of Court Administration (OCA), and Michel Ishakian, Chief of OCA’s Public Access and Records Management Division, with making this project a tangible success,” said Merryday. “With our subcommittee, they focused on the problem and found solutions.” This is the first time in more than 30 years that NARA has been able to dispose of any federal court case records. They’ve begun with paper civil case files dating back to 1970. But before they dispose of any files, courts have the ability to designate “non-trial temporary case” files between 1970 and 1995 as historic. These files will be retained and stored. All cases filed at any time that proceeded to trial, and all cases filed before 1970 are automatically designated permanent and will not be destroyed. The remaining cases will be indexed and become easier to access. What is considered historically significant? The CACM Committee, working with NARA, federal judges, historians, and academics, proposes that certain case records be designated permanent. Cases of historic significance would involve particular issues such as state reapportionment cases, civil rights voting cases,

... with electronic filing and automation, the amount of paper going to storage will dwindle. Clerks of court will coordinate the permanent storage of any files on closed cases of historical significant with the Judiciary’s Records Management Office. To ease future designation, the most recent release of the District Case Management/Electronic Case Files System will include a report to identify permanent and temporary civil files. Finally, to safeguard against the disposal of records without a court’s approval, each FRC will be required to send notification to the clerk of court. Fortunately, with electronic filing and automation, the amount of paper going to storage will dwindle. But the work isn’t over. “I call this a work in progress,” said Merryday. “We’ve dealt with two groups of documents—those former documents in storage that could be disposed of, and the current paper case files. That leaves the retention issues still to be negotiated for electronic documents. Which will be managed during the term of Judge Julie Robinson, the current chair of CACM.”

Interpreting: An Every-Day Event in Federal Courts

he number of language interpreting events provided by the federal courts in proceedings initiated by the government continues to climb. In fiscal year 2010, the 94 district courts reported a 13.8 percent increase in interpreting events over the previous 12-month period. The district courts collectively used interpreters in 349,442 events in FY 2010. That total does not include separate interpreting events in probation and pretrial services offices nationwide. Spanish remained the most-used language for interpreters in the courts by far, accounting for 96.6 percent of all reported events. The number of Spanish events increased to 337,740, due in part to a spike in immigration-related cases in five districts along the southwest border. Those five districts—Texas Southern, Texas Western, Arizona, California Southern, and New Mexico—accounted for 244,886 Spanish-language interpreting events in FY 2010. In all, interpreters for 120 different languages were requested across all events. After Spanish, the most requested interpreting services were for Mandarin (1,524), Russian (924), Cantonese (775), Vietnamese (716), Haitian Creole (612), Mixteco Bajo (576), Arabic (543), Portugese (525), and Korean (449). The increase in immigration-related cases also seemed to play a big part in how interpreting events played out geographically. The Fifth Judicial Circuit, comprised of Texas, Louisiana, and Mississippi, reported the highest total of interpreting events—124,847. A whopping 99.5 percent of those were in Spanish.

Federal Court Interpreting Events, by District During the 12-Month Period Ending September 30, 2010

The sprawling Ninth Judicial Circuit, comprised of nine western states that include California and Arizona, reported 123,623 interpreting events, 97 percent of them in Spanish. To help meet the growing demand, the federal Judiciary now employs 95

Five Busiest Districts

Y 2010 Interpreting Events in the Southwest Border Courts

TOTAL SPANISH

Texas Southern

79,187

78,794

Texas Western

43,729

43,661

Arizona

79,914 78,960

California Southern

24,553

24,290

New Mexico

19,330

19,181

5-District Totals

246,713 244,886

staff interpreters of Spanish. (They, and hundreds of non-employees, have met the high standards to be certified as court interpreters. The Judiciary offers certification every other year in Spanish.) The Judiciary’s Telephone Interpreting Program (TIP) continued to grow, providing remote interpretation services in short proceedings where certified or otherwise qualified court interpreters are not locally available. TIP saved an estimated $1.1 million in interpreter travel and contract costs in FY 2010. More importantly, the program ensured that qualified interpreters were available for defendants in court proceedings by providing services in 39 different languages and 3,613 events. Spanish was used in 92 percent of those events. Court interpreters are provided by the federal courts when needed in criminal cases and civil cases in which the United States is the plaintiff. The Third Branch n May 2011

Best Use of Jurors Improves Jury Experience continued from page 1

“High non-utilization rates of jurors raise concerns regarding the unnecessary inconvenience to citizens and costs to the Judiciary,” Robinson said. “The Committee thought it would be very helpful, especially to large courts, to participate in an FJC juror utilization workshop to educate the courts on ways to reduce this rate and to provide courts an opportunity to share their experiences in the most efficient ways to obtain an adequate jury pool.”

Most Jurors Like the Experience

ccording to an April 2011 survey of 1,000 adults by the Rasmussen Reports, the majority of people who served on a jury liked the experience. The poll did not differentiate between federal and state jury duty. Among the survey results: Have you ever been summoned for jury duty? Yes............................................................................................................................................................................67% No............................................................................................................................................................................30% Not Sure.................................................................................................................................................................. 3% Were you eventually selected to serve?

... participants examined the challenges and opportunities that courts face when dealing with juries in the twentyfirst century, including high profile terrorism trials, new technology that helps jurors view evidence and exhibits in a trial, the pitfalls and temptations of social media for jurors... In March, 11 district courts that use large jury pools sent teams to a workshop. Participating were the Central, Eastern, Northern and Southern Districts of California, the District of Columbia, the Eastern District of Louisiana, the Eastern District of Michigan, the Southern District of New York, the Eastern District of Pennsylvania, and the Northern and Western Districts of Texas. During the day and a half workshop, participants examined the challenges and opportunities that courts face when dealing with juries in the twenty-first century, including high-profile terrorism trials, new technology that helps jurors view evidence and exhibits in a trial, the 4

The Third Branch n May 2011

Yes............................................................................................................................................................................20% No............................................................................................................................................................................76% Not Sure.................................................................................................................................................................. 4% How would you rate the experience of service on a jury? Excellent...............................................................................................................................................................21% Good......................................................................................................................................................................51% Fair...........................................................................................................................................................................21% Poor.......................................................................................................................................................................... 7% Is serving on a jury one of the responsibilities required of an American citizen, or just a hassle? One of the responsibilities required of an American citizen......................................................85% Just a hassle........................................................................................................................................................... 7% Not sure.................................................................................................................................................................. 9% Rasmussen Reports is an electronic media company specializing in the collection, publication and distribution of public opinion polling information.

pitfalls and temptations of social media for jurors, and post-trial procedures and counseling options available to help jurors after difficult trials. A primary focus of the workshop was for courts to develop an action plan to take back home to address local challenges, a long list that included: setting default panel sizes to a lower number of jurors; testing lower panel sizes; reporting juror utilization statistics within the district; creating an ad hoc jury committee; developing or revising a juror utilization plan; developing an

orientation program on juror utilization for new judges; surveying jurors on their experiences; reducing the length of service; making available post-trial counseling information when necessary; and conducting public outreach to increase summons response and increase diversity of pools. “Jury service is one of the most important civic duties an American citizen can perform,” said Robinson. “We can show our appreciation for their deliberations by making good use of their time and service.”

Parole in the Federal Probation System

arole may seem like an anachronism in the federal justice system. After all, under the Sentencing Reform Act, federal civilian defendants sentenced for offenses committed after November 1, 1987, would no longer be eligible for parole. But two decades later, offenders under the jurisdiction of the Parole Commission are frequently placed under the supervision of federal probation officers. The Parole Commission remains active and, as recently as 2002, federal legislation continued to add to its responsibilities. Why is this the case? The answer is parole is still with us in four different forms. First, there are the offenders who committed their crimes prior to the effective date of the Sentencing Reform Act in 1987. Nationwide they currently number 1,992. These remaining offenders are serving long prison terms for serious, often violent offenses. Typically, they are older, with an average age of 47, compared to the average age of 38 for other offenders under supervision. They’re also more at risk to recidivate, with a Risk Prediction Index score of 3.97, higher than the overall RPI average of 3.57.

“We provide the same services and utilize the same strategies for both U.S. district court cases and D.C. Code cases.” Karen Sellinger, Deputy Chief Probation Officer

In addition to offenders who committed federal crimes prior to 1987, there is a second group of offenders on federal parole—those who violated the laws of the District of Columbia. When the National Capital Revitalization and Self-Government

Post-Conviction Supervision as of September 30, 2010 2% ■ Term of Supervised Release

80%

18%

Improvement Act of 1997 abolished the District of Columbia Board of Parole, its responsibilities were transferred to the U.S. Parole Commission. By 2000, the Parole Commission had assumed jurisdiction over parole and mandatory release supervision and revocation decisions for all persons serving D.C. Code felony sentences. For parolees within the District of Columbia, the Court Services and Offender Supervision Agency provides supervision. “But U.S. probation officers are responsible for supervising D. C. Code offenders who are released to districts outside of the D.C. metropolitan area or who are serving dual U.S. district court and D.C. Code sentences,” said Madeline Gill, Assistant Deputy Chief Probation Officer in the District of Maryland. Because of their proximity to the District of Columbia, the District of Maryland and the Eastern District of Virginia supervise D.C. Code offenders. The U.S. Probation Office for the District of Maryland currently supervises over 500 D. C. Code offenders. “We provide the same services and utilize the same strategies for both U.S. district court cases and D.C. Code cases,” said Karen Sellinger, Deputy Chief

■ Parole ■ Probation

Probation Officer, District of Maryland. “The conditions of parole are set by the Parole Commission. But the goals of supervision are the same for all offenders on probation or on parole: to manage risk, address needs, and provide offenders with the tools and services they need to be successful on supervision and beyond.” The difference lies in how parole violations are handled. If an offender was sentenced in U.S. district court, the sentencing judge would be notified. For offenders on parole, however, the U.S. Parole Commission has the authority in the case. Requests for modifications of conditions also go to the Commission. A third group of offenders on parole are military offenders. Servicemembers who have been convicted within the military criminal justice system and who have been confined in military prison are routinely released to parole and supervised release. Nationwide, federal probation officers supervise nearly 350 persons on military parole. The Department of Defense confinement facility, the appropriate Clemency and Parole Board (each Continued on page 9 The Third Branch n May 2011

Judiciary Split on Need for Rule 16 Changes

o federal prosecutors and defense attorneys understand their pretrial obligations to disclose exculpatory and impeachment information?* The question is at the heart of a recent survey of federal judges asking if Federal Rule of Criminal Procedure 16 should be amended. As it turns out, federal judges are split on the issue.

“Whether and how to address criminal discovery through Rule 16 has been on the agenda of the Committee for over 40 years.” Judge Richard C. Tallman (9th Cir.)

Rule 16 governs discovery and inspection of evidence in the 86,000 federal criminal cases filed annually in federal courts. It also imposes on the government “a continuing duty to disclose additional evidence or materials subject to discovery under the rule, if the government discovers such information prior to or during the trial.” Thirty-eight districts have a local rule or standing order that codifies the government’s obligations to disclose exculpatory and/or impeachment material, and/or provides timing requirements for the disclosure of the material. “Whether and how to address criminal discovery through Rule 16 has been on the agenda of the Committee for over 40 years,” said Judge Richard C. Tallman (9th Cir.), the chair of the Judicial Conference Advisory Committee on Criminal Rules. “Federal cases tend to be more complicated than state cases, generating more evidence, more data, and more electronic records. That poses problems for prosecutors and especially for defense attorneys who need to know about the evidence relevant to guilt or innocence 6

The Third Branch n May 2011

and how to organize it all for trial. We wanted to see if there was something we should do to amend Rule 16 to make the exchange of information quicker and more efficient to insure fairness to the defendant, while also respecting the privacy and security of witnesses.” In June 2010, at the request of the Advisory Committee on Criminal Rules, the Federal Judicial Center conducted the largest survey in the Center’s history, a national survey of all federal district and magistrate judges, U.S. attorneys’ offices, and federal defenders, and a sample of defense attorneys in criminal cases that terminated in calendar year 2009. Of the 1,505 district judges who received a survey, 644 or 43 percent completed the online survey. As part of the survey, judges were asked about their courts’ local rules and policies requiring disclosure by prosecution and defense; whether or not federal prosecutors followed a consistent policy or approach with regard to pretrial discovery and disclosure obligations; the number of cases in which judges felt disclosure of exculpatory information resulted in threats or harm to a prosecution witness; and how often prosecutors and defense attorneys may have violated their disclosure obligations. When asked, “Do you favor amending Rule 16 to address pretrial disclosure of exculpatory and Giglio information*,” the 644 judges split evenly on the question. However, greater support for amending Rule 16 was found among judges in districts with local rules and/or orders that require broader disclosure of these materials than required by Rule 16. The overwhelming majority of judges—94 percent—thought that federal prosecutors usually or always understand their disclosure obligations. Only 78 percent of judges thought the same of defense attorneys. And 88 percent of

judges felt federal prosecutors usually or always follow a consistent approach to disclosure. Sixty percent of the judges reported having no cases during the past five years in which they concluded a federal prosecutor or defense attorney had failed to comply with disclosure obligations. Overall, judges reported high levels of satisfaction over the compliance by federal prosecutors and defense attorneys with their disclosure obligations. The Department of Justice, while opposing any proposed amendment to Rule 16, has implemented nationwide training initiatives to increase awareness among prosecutors of their discovery obligations in criminal cases. The training was recently extended to 26,000 federal agents, and in 2010 a policy memo from then-Deputy Attorney General David Ogden provided detailed guidance to all federal prosecutors on pretrial disclosure procedures.

When asked, “Do you favor amending Rule 16 to address pretrial disclosure of exculpatory and Giglio information,” the 644 judges split evenly on the question. Overall, Tallman’s committee has been impressed with the steps the DOJ has taken and will take to ensure that prosecutors assess and meet their disclosure obligations. Revisions to the U.S. Attorney’s Manual have clarified the disclosure of material and exculpatory evidence, and a DOJ working group has been tasked with review of the department’s policies and practices regarding criminal discovery issues. The position of the National Coordinator for Criminal Discovery Initiatives has been created and the advisory committee heard from the person appointed to that position. In addition, each

Perceptions Regarding Federal Prosecutors’ Comprehension of Disclosure Obligations 100

U.S. attorney’s office has been directed to develop a local discovery policy consistent with the law and local rules and practices.

Percent

■ Judges

■ Attorneys ■ U.S. Attorney Offices

... the committee was not convinced that the problem is so severe as to warrant a rule change when existing Supreme Court authority on a prosecutor’s disclosure obligations is clear and for which substantial sanctions are available for non-compliance.

70 60 50 40 30 20 10 0

Always

Usually Sometimes Rarely

Never

Always

Broader Disclosure Districts

Usually Sometimes Rarely

Never

Traditional Rule 16 Districts

Perceptions Regarding Defense Attorneys’ Comprehension of Disclosure Obligations 100

Percent

■ Judges

■ Attorneys ■ U.S. Attorney Offices

80 70 60 50 40 30 20 10 0

Always

Usually Sometimes Rarely

Broader Disclosure Districts

Never

Always

Usually Sometimes Rarely

Never

Traditional Rule 16 Districts

Broader Disclosure Districts: Of the ninety-four federal districts, thirty-eight districts have local rules and/or standing orders that impose requirements beyond those of Rule 16 for disclosure of exculpatory and impeachment material, in essence requiring “broader disclosure” than Rule 16 provides.

“The committee has decided against recommending a change in Rule 16 at this time,” says Tallman. “The survey shows there is a lack of consensus in the federal Judiciary as to whether an amendment is necessary.” He adds that the committee is not abandoning efforts to make improvements in this area, but is recommending alternatives that could be implemented more quickly and effectively through the FJC: better training of judges in managing criminal discovery pretrial, changes to the District Judge’s Benchbook to include discovery checklists to aid in case management, and publication of a “Best Practices Guide for Criminal Discovery.” “No rule can effectively prevent intentional misconduct by prosecutors who knowingly withhold exculpatory information,” Tallman said. “But the committee was not convinced that the problem is so severe as to warrant a rule change when existing Supreme Court authority on a prosecutor’s disclosure obligations is clear and for which substantial sanctions are available for non-compliance.” *Material tending to impeach the character or testimony of the prosecution witness in a criminal trial.

The Third Branch n May 2011

May Judicial Milestones Appointed: Jimmie V. Reyna, as a U.S.

Appointed: Michael R. Wilner, as U.S.

Court of Appeals Judge, U.S. Court of Appeals for the Federal Circuit, April 7.

Magistrate Judge, U.S. District Court for the Central District of California, April 1.

Appointed: James Emanuel Boasberg,

as a U.S. District Judge, U.S. District Court for the District of Columbia, April 1.

Senior Status: U.S. District Court Judge Ortrie D. Smith, U.S. District Court

for the Western District of Missouri, April 30.

Appointed: Timothy W. Dore, as a U.S.

Bankruptcy Judge, U.S. Bankruptcy Court for the Western District of Washington, April 4.

Elevated: U.S. District Judge Carol Bagley Amon, to Chief Judge, U.S.

Published monthly by the Administrative Office of the U.S. Courts Office of Public Affairs One Columbus Circle, N.E. Washington, D.C. 20544 (202) 502-2600

Visit our Internet site at www.uscourts.gov DIRECTOR James C. Duff EDITOR-IN-CHIEF David A. Sellers

Appointed: Sandra R. Klein, as a U.S.

District Court for the Eastern District of New York, succeeding U.S. District Judge Raymond J. Dearie, April 3.

Bankruptcy Judge, U.S. Bankruptcy Court for the Central District of California, April 22.

Elevated: U.S. District Judge Aida M. Delgado-Colon, to Chief Judge, U.S.

PRODUCTION OmniStudio, Inc.

District Court for the District of Puerto Rico, succeeding U.S. District Judge Jose Antonio Fuste, April 14.

CONTRIBUTOR Dick Carelli, AO

Appointed: William J. Lafferty, III, as a

U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Northern District of California, April 20.

Retired: U.S. Magistrate Judge Justo Arenas, U.S. District Court for the

Appointed: David E. Rice, as a U.S.

District of Puerto Rico, April 10.

Bankruptcy Judge, U.S. Bankruptcy Court for the District of Maryland, April 1.

Retired: U.S. Magistrate Judge Virginia M. Morgan, U.S. District Court for the

Eastern District of Michigan, April 30. Appointed: Stephanie A. Gallagher, as

a U.S. Magistrate Judge, U.S. District Court for the District of Maryland, April 18. Appointed: Richard L. Puglisi, as U.S.

Magistrate Judge, U.S. District Court for the District of Hawaii, April 1. Appointed: Sheri N. Pym, as a U.S.

Magistrate Judge, U.S. District Court for the Central District of California, April 18.

Deceased: U.S. Senior Judge James M. Fitzgerald, U.S. District Court for the

District of Alaska, April 3.

MANAGING EDITOR Karen E. Redmond

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 May 1, 2011 Courts of Appeals Vacancies..................................17 Nominees.................................8 District Courts Vacancies..................................76 Nominees.................................34 Courts with “Judicial Emergencies”.........37

Up-to-date information on judicial vacancies is available at http://www.uscourts.gov/ JudgesAndJudgeships/JudicialVacancies.aspx

The Third Branch n May 2011

USSC to Hold Hearing on Retroactivity of Crack Cocaine Amendments

he U.S. Sentencing Commission is seeking public comment on whether or not recently proposed amendments to the federal sentencing guidelines should be made retroactive. Retroactivity of the amendments will be the topic of a June 1, 2011 hearing. In March, the Commission adopted a permanent amendment implementing the provisions of the Fair Sentencing Act of 2010, legislation that, among other things, reduced the statutory mandatory minimum penalties for crack cocaine trafficking and eliminated the mandatory minimum sentence for simple possession of crack cocaine. The Act also contained directives to the Commission to review and amend the federal sentencing guidelines to account for certain aggravating and mitigating circumstances in drug trafficking cases to better account for offender culpability. In October 2010, the Commission promulgated an emergency, temporary amendment to implement an emergency directive in the Fair Sentencing Act of 2010.

The new mandatory minimum quantity threshold levels for crack cocaine offenses are consistent with the Commission’s 2007 report to Congress, Cocaine and Federal Sentencing Policy. The Commission voted to set the triggering quantities of crack cocaine for the five and 10-year mandatory minimum penalties (28 grams and 280 grams, respectively) at base offense levels 26 and 32, which correspond to a sentencing range of 63-78 months

As a result of the Commission’s action, the federal sentencing guidelines will focus more on offender culpability by placing greater emphasis on factors other than drug quantity. and 121-151 months, respectively, for a defendant with little or no criminal history. The new mandatory minimum quantity threshold levels for crack cocaine offenses are consistent with the Commission’s 2007 report to Congress, Cocaine and Federal Sentencing Policy, in which the Commission, based on available information, defined crack cocaine offenders who deal in quantities of one ounce (approximately 28 grams) or more in a single transaction as wholesalers. As a result of the Commission’s amendments, the federal sentencing guidelines will focus more on offender culpability by placing greater emphasis on factors other than drug quantity. Under the Fair Sentencing Act of 2010, the Commission now must consider whether this amendment to the federal sentencing guidelines should apply retroactively. In other actions the Commission adopted amendments to: ■■ increase penalties for certain firearms

offenses. For example, the Commission

Parole in the Federal Probation System continued from page 5

branch of the military has its board), and the supervising probation officer coordinate a military offender’s reentry into the community, anticipating any treatment or special needs, such as serious medical or mental health conditions or lack of residence. Release planning takes place in the district where

voted to provide increased penalties for certain “straw purchasers” of firearms and for offenders who illegally traffic firearms across the United States border. ■■ implement the Patient Protection and

Affordable Care Act of 2010 (Pub. L. No. 111–148), the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Pub. L. No. 111–203), and the Secure and Responsible Drug Disposal Act of 2010 (Pub. L. No. 111–273). More information regarding these amendments, and other amendments, can be found on the Commission’s website at www.ussc.gov. The Commission submitted its 2010-2011 amendment package to Congress on April 28, 2011. Congress has 180 days to review the amendments submitted by the Commission. The amendments have a designated effective date of November 1, 2011, unless Congress acts affirmatively to modify or disapprove them.

the offender has the higher possibility of complete and productive reintegration into the community. Finally, probation offices work with the U.S. Parole Commission in foreign transfer treaty cases, an area where, since 2002, the Commission has had responsibility for making prison-term decisions for offenses committed on or after November 1, 1987. (See April 2011 Third Branch, “International Prisoner Transfer Program Brings U.S. Citizens Home.) The Third Branch n May 2011

interview

Record Bankruptcy Filings, Too Few Judges

udge Joy Flowers Conti (W.D. Pa.), was named chair of the Judicial Conference Committee on the Administration of the Bankruptcy System in October 2010. A member of the committee since 2007, Conti was appointed to the bench in 2002.

Q: You bring your experience as a former bankruptcy attorney to your role as committee chair. Could you talk a little about that experience? A: I was a law school professor when the 1978 Code was enacted and went into effect. I taught bankruptcy and bankruptcy reorganization. In practice, I was the debtor’s counsel in one of the first Chapter 11 cases filed in my district under the new Code. From my experience, I developed a respect for the bankruptcy system and an understanding of how the bankruptcy process works.

Q: How is work progressing on enhancements to the Next Generation of Case Management/Electronic Case Files System that will affect bankruptcy judges and chambers and also the filers? Can you talk about the planned improvements or changes? A: The Bankruptcy Committee has been very interested in the progress of the “Next Gen” project. The project is on schedule to meet a primary goal of completing the collection and documentation of functional requirements by February 2012. A lot of hard work has been performed by members of the functional requirements groups, (FRGs), comprised primarily of judges, chambers and clerks, office staff. After the functional requirements are collected, the project will proceed through other phases, including design and development. Project participants are to be congratulated for the fine work they’ve accomplished to date. 10

The Third Branch n May 2011

While specific functionality that will be in the Next Gen system can’t be described at this point, there are several interesting concepts that have been talked about. One idea that could benefit all users is what has been called the “MyECF” page. This page would provide users in the system with a way to organize the user’s preferences and links to information in the system. Another concept that is under consideration is a process to draft opinions and other documents entirely within the case management system. This approach will be especially helpful to judges and chambers staff.

Q: How did the passage of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 affect the type of bankruptcy filings? A: It was widely reported in the press that the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, popularly referred to as BAPCPA, brought on a surge of filings in mid- to late-2005. This surge in filings amounted to an estimated 725,000 filings above the “normal” level for the time period. That surge resulted from what many observers understand was the mistaken belief that, after the effective date of BAPCPA, individuals would no longer be permitted to file for bankruptcy protection. The vast majority of the pre-effective date filings were under chapter 7. Subsequent to BAPCPA’s effective date of October 17, 2005, the total number of bankruptcy filings plunged. In fact, in November 2005, there were only 14,500 total bankruptcy petitions filed in the entire

Judge Joy Flowers Conti (W.D. Pa.)

country. That level of filings had not been seen in the previous 40 years. In the intervening years, the level of filings largely returned to pre-BAPCPA levels. Immediately following the effective date of BAPCPA, the mix of total filings shifted dramatically toward chapter 13 filings. Historically, chapter 13 filings tended to represent about 29 percent of total bankruptcy petitions filed. Immediately after the new law took effect, the proportion of total filings represented by chapter 13 filings jumped to in excess of 50 percent, while chapter 7 filings, which historically accounted for about 70 percent of all bankruptcy filings, fell to well below 50 percent. Whether this shift in the mix was the direct result of the new law or a statistical anomaly occasioned by the pre-effective date surge, which effectively accelerated the filing of hundreds of thousands of chapter 7 bankruptcy filings, may never be known. Since that time, however, the mix of filings has gradually shifted back to the pre-BAPCPA levels. By late 2010, chapter 7 filings were again accounting for about 70 percent of total bankruptcy filings. It is difficult to determine whether the recession accounted for the surge in the

number of bankruptcy filings over the last few years with any degree of confidence. Although intuitively it appears plausible that the recession did in fact “cause” some bankruptcies, the reality is that bankruptcy relief may not benefit everyone who lost a job or had mortgage difficulties.

Q: How did BAPCPA affect the workload of bankruptcy judges? A: Statistics indicate that the work of bankruptcy judges on a per case basis increased substantially under BAPCPA compared with the level of work under the prior bankruptcy law. In all, BAPCPA created more than 35 types of new motions, objections, and hearings— many related to consumer matters— that did not exist before its enactment. The overall consequence of BAPCPA is estimated to be a 42 percent increase in judicial workload. It is estimated that the impact of BAPCPA was a 37 percent increase in the average judicial workload per chapter 7 case, and an increase of 54 percent in judicial workload per chapter 13 case. The overall impact on chapter 11 cases is estimated to be a 4 percent increase per case. When you consider the level and mix of bankruptcy filings, they’ve returned to near pre-BAPCPA levels.

Q: How are bankruptcy courts handling the increased workload? A: With great difficulty in those districts where judges have triple and quadruple the threshold number of filings at which point the districts are considered for additional judgeships. That level now is 1,500 weighted filings. In many courts it is the norm for judges and chambers staff to work evenings and weekends. Recalled judges have helped, but recalled judges are not a permanent solution. Also, recalled judges are not

available in all of the districts that are in need of judicial assistance. Calendars are getting longer and it is more difficult to schedule evidentiary hearings and other matters lasting more than a few hours. In some districts, night court is close to a reality. Certain districts requesting additional judgeships have calendars with 300, 400, 500, or more matters scheduled to be heard. In some courts, it is now necessary to wait four to six months or more to have a half-day hearing set on the schedule. A trial taking five or more days may, in fact, take place over 12 months or more with many part-day sessions in order for the hearing to be completed. It is also routinely necessary that the 30-day limit on motions to lift the automatic stay be waived in many courts because the dockets are so crowded that it is simply impossible to reach a final resolution within the 30-day time frame. Many judges are concerned that they don’t have time to write opinions. This causes a judicial version of a Catch-22: the courts have many cases, which may have similar fact patterns and issues, and written opinions could alleviate some of the judges’ workloads by communicating to the bar how certain matters are addressed. It is beneficial if a judge can rely on a well-reasoned opinion in appropriate cases. But the judges are so pressed for time due to the volume of cases that they are unable to take the time necessary to write an opinion on a recurring issue.

Q: Given the present workload situation, do the bankruptcy courts have adequate resources — including a sufficient number of bankruptcy judges? A: The short answer to this question is “no.” Nationwide, there are only 351 authorized bankruptcy judgeships and additional bankruptcy judgeships, are

not frequently authorized by Congress. Until BAPCPA authorized 28 additional temporary judgeships in 2005, no additional bankruptcy judgeships had been authorized since 1992. To address the need for additional judicial resources, the Judicial Conference, on the recommendation of the Bankruptcy Committee, approved requests for 49 additional judgeships, the conversion of 28 temporary judgeships to permanent status, and the extension of two temporary positions for additional five-year periods. The Committee is greatly concerned that the failure to enact bankruptcy judgeship legislation will impair the ability of the bankruptcy courts to perform their work in the face of increasing case filings that are at near-record levels. Failure to convert and extend the temporary judgeships is of particular concern because, without congressional action, the Judiciary could soon have fewer judicial resources to address an historically heavy workload. Many temporary judgeships are due to lapse in the next few years. The House Judiciary Committee has voted to favorably report the Temporary Bankruptcy Judgeship Extension Act of 2011 (H.R. 1021) on March 17, 2011. This bill would extend for five years 30 existing temporary bankruptcy judgeships that have lapsed, or are lapsing soon, and would thus be in danger of expiring. We hope that this legislation will be considered and acted upon favorably by both Houses of Congress as soon as possible.

Q: Has your Committee made any recommendations for assistance to the bankruptcy courts? A: In addition to its recommendations for additional judgeships and the preservation of existing judgeships through conversion or extension of temporary judgeships, the See Interview on page 12 The Third Branch n May 2011

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interview Committee established a working group of Committee members to explore alternative uses of existing judicial resources. Among other things, the group will explore the possibility of establishing a visiting judge information system through the AO to assist circuits and districts in finding judges who are willing and able to provide assistance to overworked courts. Enhancements in technology also are being considered. The group will consider the results of a survey of bankruptcy judges being conducted by the Federal Judicial Center to explore factors that might make recall an attractive alternative to full retirement. Given the difficulty of obtaining

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additional bankruptcy judgeships, retired bankruptcy judges willing to serve under the recall program are indispensable to the national bankruptcy court system. At the present time, 33 bankruptcy judges are serving on recall. Their service provides individual districts with a costeffective means to address shifting caseloads and valuable experience that benefits the bankruptcy system. Using recalled judges, however, is only a shortterm solution. Also, the Judicial Conference approved at its March 2011 session a recommendation to revise the Conference guidelines for the intercircuit assignment of bankruptcy judges

to allow more flexibility and promote greater use of intercircuit assignments.

Q: What are your goals and/or projects as committee chair? A: This is a critical time for the bankruptcy court system with so many overworked bankruptcy judges and the possibility of a large number of judicial retirements in the near future. It is essential that the courts continue the effort to obtain adequate judicial resources and create more flexibility and efficiency in using existing resources to address the dramatic increase in the workload. The bankruptcy courts need appropriate resources to serve the public and to meet the needs of justice.