Let them eat cake

The Omaha World-Herald is Nebraska’s only state-wide newspaper. From an editorial perspective, the OWH slants reliably right. Thus, the editorial published in today’s newspaper was stunning.

Beginning with the words, “Let them eat cake,” the OWH criticizes federal lawmakers (specifically naming Rep. Lee Terry, R-Neb.,* Sen. Deb Fischer, R-Neb.,** Rep. Jeff Fortenberry, R-Neb.***) for refusing to give back their pay while failing to enact a budget.

As I recall Tim, the Nebraska FPD’s investigator, who lost his job after 18 years because of these folks and their cohorts, and the serious harm being suffered by the federal judiciary because of the sequester and the absence of a budget, I am delighted to see that the OWH has called these politicians out. Hypocrisy should have a cost.





87 Chief District Judges put Congress on notice

Including the territories, there are 94 U.S. District Courts. The Chief Judges of 87 of them sent a letter dated August 13, 2013, to Congress detailing the impact that flat funding of the last few years, followed by sequestration, is having on the Judiciary’s ability to carry out its constitutional and statutory responsibilities. Identical letters were sent to the House and Senate leadership, and key members of the House and Senate Judiciary and Appropriations Committees.

The substance of the letter reads this way:

We write to you as Chief Judges of 87 federal district courts to express our grave concern over the impact the flat funding of the last few years, followed by sequestration, is having on the Judiciary’s ability to carry out its constitutional and statutory responsibilities. As the boots on the ground in our nation’s federal trial courts, we have experienced firsthand the effect of those
constraints and funding reductions. They have forced us to slash our operations to the bone, and we believe that our constitutional duties, public safety, and the quality of the justice system will be profoundly compromised by any further cuts.

Under Article III of the Constitution, the Federal Judiciary is responsible for fairly and effectively adjudicating many of the most significant criminal and civil controversies of our times. Over the years, with the support of Congress, the Judiciary has been able to forge and maintain one of the most respected justice systems in the world.

Flat funding followed by the sequestration cuts that took effect March 1, 2013, have had a devastating impact on court operations nationwide. Final enacted appropriations for fiscal year 2013 were reduced nearly $350 million for the Judiciary. Emergency measures were implemented throughout the federal court system to address the drastically reduced funding levels, but the federal courts do not have the flexibility to absorb such a large cut on top of previous flat funding. These emergency actions represented a conscientious effort by the Judiciary to mitigate the adverse impact of sequestration on court operations in an attempt to ensure continued access to justice for the citizens of this country. However, the cuts have created an unprecedented financial crisis that is adversely affecting all facets of court operations.

As a result of sequestration, funding allocations sent out to court units were cut 10 percent below the fiscal year 2012 level. Clerks of court and probation and pretrial services offices will downsize by as many as 1,000 staff during fiscal year 2013 due to this reduction in funding. Staffing in these same offices has been reduced by nearly 2,100 staff between July 2011 and July 2013, representing a 10 percent staffing loss to the Judiciary over this two-year period. Our current staffing level is the lowest it has been since 1999 despite significant workload growth during this same period of time. In addition to downsizing, the courts have already incurred 4,500 furlough days as of June 2013, and an additional, 4,100 furlough days are projected by the end of the fiscal year. These staffing losses are resulting in slower processing of civil and bankruptcy cases which impacts individuals and businesses seeking to resolve disputes in the federal courts.  For example, in the bankruptcy court in New York, venue for many mega-cases involving thousands of jobs and companies with a vast impact on commerce and finance, staffing losses require that court proceedings end at 5:00 p.m. instead of continuing to conclusion as they have in the past – often late into the night.

Funding cuts to the Judiciary have also put public safety at risk. The Judiciary employs nearly 6,000 law enforcement officers—probation and pretrial services officers—to supervise individuals in the community after they have been convicted of a crime and subsequently released from prison, as well as defendants awaiting trial. The number of convicted offenders under the supervision of federal probation officers hit a record 187,311 in 2012 and is on pace to reach 191,000 by 2014. At a time when the workload in our probation and pretrial offices continues to grow, budget cuts have reduced funding allocations to these offices by 10 percent. Staffing in probation and pretrial services offices is down nearly 600 (7 percent) since 2011. These offices are tasked with ensuring public safety by monitoring criminal defendants through, among other things, in-person meetings, drug testing, drug, mental health and sex offender treatment, and GPS-tracking. Additionally, probation offices facilitate the safe re-integration of these defendants into the community by performing premises searches for items such as illegal weapons, illegal drugs, and child pornography. Cuts to officer staffing levels have forced cutbacks in these activities to crisis levels, meaning less deterrence, detection, and response to possible criminal activity by federal defendants in the community and more illegal weapons, drugs, and other contraband left in the community. Particularly troublesome is the 20 percent cut that had to be made to the law enforcement allotments that fund drug, mental health, and sex offender treatment and testing services for offenders, searches, and electronic and GPS monitoring.

Security at courthouses has suffered as well. Sequestration resulted in a 30 percent cut in funding for court security systems and equipment, and court security officers are being required to work reduced hours, creating security vulnerabilities throughout the federal court system. Further cuts threaten the ability of the Judiciary to maintain needed security at courthouses, including those where terrorism and other sensitive cases are resolved. Also as a result of budget cuts, we fear we will run short of funding for grand and petit jurors and have to make additional cuts elsewhere or risk delaying indictments and civil jury trials.

But the most significant impact of budget cuts and sequestration thus far has been the reduction in funding for Defender Services. These organizations, which have always run on modest budgets while providing high quality legal services, fulfill the mandate of the Sixth Amendment and the Criminal Justice Act for the appointment of counsel for criminal defendants who lack the financial resources to hire an attorney. Because we must provide counsel for indigent defendants, the only options for absorbing the more than $50 million cut to the Defender Services account are reducing federal defender organization (FDO) staffing levels (through layoffs or furloughs) and/or deferring or reducing payments to private panel attorneys. Reducing FDO staff (who work on salary) results in appointments being shifted to CJA panel attorneys (who charge hourly), thus increasing costs rather than reducing them and deferring more panel attorney payments into the next fiscal year. This is an untenable approach, both because it increases costs overall and because adding to appropriations requirements in the coming fiscal year compounds the shortfall of funding in the overall account.

The emergency measures taken by the Judiciary as a result of sequestration will require suspension of payments to private panel attorneys for the last three weeks of the fiscal year, while the FDOs are making staff reductions and furloughing employees for an average of 15 days over the last half of the fiscal year. Between October 2012 and June 2013, FDOs downsized by about 160 staff, representing a 6 percent decline. Since March 2013, their remaining employees were furloughed for over 12,500 furlough days. We can already see the impact of FDO staffing reductions in our courts. The federal defender office in New York recently asked to postpone the trial of alleged terrorist Sulaiman Abu Ghaith, Osama bin Laden’s son-in-law, because of staff cutbacks. Our courts in the District of New Mexico, the Western District of Texas, and the Western District of New York have stopped scheduling criminal matters on alternating Fridays because of FDO staffing shortages.

Exacerbating the problem in the defenders account is the fact that the Judiciary has no control over the number and nature of cases in which court-appointed counsel must provide a defense. The caseload is driven entirely by the prosecutorial policies of the Department of Justice and its 93 United States Attorneys. The Department of Justice is not furloughing staff. The pace at which criminal cases require court-appointed counsel has continued unabated, while resources in the Defender Services program are diminishing. As chief district judges, we are deeply concerned that the cuts in federal defender offices will severely undermine and weaken a program that has taken years to build. Meanwhile, deferrals of panel attorney payments could jeopardize the Judiciary’s ability to convince well-qualified counsel to accept panel appointments.

Reductions in court budgets reduce the overall volume of work that the Judiciary is able to perform and communicate timely to the public in a variety of ways, again undermining our core constitutional responsibilities. Reductions in the hours and number of administrative and judicial staff reduce our output. Our inability to maintain our information technology infrastructure both reduces our output and delays the communication of that output to the public. This undermines the public confidence in our system as litigants wait longer for relief. When cases lag, the Judiciary is seen as inefficient, or worse, unsympathetic to litigants ranging from pro se litigants (who represent themselves) to individuals and companies seeking bankruptcy relief or the resolution of civil disputes to the government and defendants in criminal cases.

We commend the House and Senate Appropriations Committees for their attention to our concerns, both in the past and at present. The Senate Appropriations Committee recently approved S. 1371, which would provide the Judiciary with a $496 million increase in funding for FY 2014. This is roughly 7 percent more than the FY 2013 post-sequestration funding that the Judiciary received, and it is sufficient to fund fully the Judiciary’s FY 2014 re-estimated budget request. The House Appropriations Committee recently approved H.R. 2786, which would provide the Judiciary with a $363 million increase in funding for FY 2014, representing a roughly 5 percent increase over the FY 2013 post-sequestration funding received by the Judiciary. Increases in funding of this nature are absolutely essential to our ability to fulfill our constitutional mandate and to ameliorate the concerns we have expressed above. We commend those in Congress who understand our needs as well as our dedication to being good stewards of taxpayer funds. Still, we remain deeply concerned about the effects on our mission in the event a Continuing Resolution (CR) is enacted for the full year. A second year under sequestration will have a devastating, and long lasting, impact on the administration of justice in this country. We urge you to include an anomaly for the Judiciary, at the Senate bill level, if it appears we will be operating under a full-year CR.

The work of the Federal Judiciary derives from functions assigned to us by the United States Constitution and the statutes enacted by Congress. We do not have projects or programs to cut; we only have people. We must adjudicate all civil and criminal cases that are filed with the courts, we must protect the community by supervising defendants awaiting trial and criminals on post-conviction release, we must provide qualified defense counsel for defendants who cannot afford representation, we must pay jurors for costs associated with performing their civic duty, and we must ensure the safety and security of judges, court staff, litigants, and the public in federal court facilities. Our workload does not diminish because of budget shortfalls. Deep funding cuts simply mean that the Judiciary cannot adequately perform its responsibilities.

In closing, we understand that the economic climate across the nation is difficult, and we appreciate Congress’s consideration. In response to reductions resulting from sequestration, we have cut as much as possible while striving to uphold our core mission. Another round of cuts would be devastating. As the folks on the front lines, interacting with and serving the public on a daily basis, we conclude by emphasizing that any further cuts to the Judiciary would directly affect our ability to carry out our constitutional and statutory duties. We look to the Congress to recognize the uncontrollable nature of our workload and to provide the resources necessary for
the Judiciary to perform its essential functions.

As a former Chief District Judge, I know that you can almost never get 87 Chief District Judges to agree about when the sun comes up. The fact that 87 of them wrote the foregoing letter to Congress ought to make clear that the federal district courts are inches away from disaster. Congress is on the brink of intentionally wrecking the federal trial courts. Will sanity prevail?


A bit of introspection

I know enough psychology to know that fear is often the root emotion of anger.  My posts on the sequester exhibit more than a little anger. Rage is not too strong a word.  Why am I so terrified? I tremble at the barbarians’ rejection of what I had always assumed were unquestioned verities like the sanctity and beauty of our federal judicial system.

It remains to be seen whether this old man’s terror is well-founded, but I won’t have to wait long for an answer. The answer is coming quickly like the metaphorical train in the tunnel.


Tit for tat

I have an idea and then a proposal.  Here’s the context.

I took an assignment of a difficult death penalty case in Arkansas.  Last week, I authorized the withdrawal of an Assistant Federal Public Defender in that difficult matter involving, as it does, the death of a child at the hands of a man who suffered a serious injury to the frontal lobe of his brain.

I wrote:

Deborah Anne Czuba has filed a motion to withdraw as counsel. She is a
victim of the sequester. I now extend my personal thanks to Ms. Czuba for her
excellent and zealous service in this most difficult of cases. She has every reason to
be proud of herself. Congress has every reason to be ashamed of itself.

I got to thinking this weekend about how one could illustrate and then begin to rectify (or at least balance) the utter depravity that drove Ms. Czuba’s firing as a result of the sequester.   You first need to know a bit about Ms. Czuba.

She is not a rookie. She had been a public defender for 18 years.  Until she was canned, this was her bio from the Cornell University Law School:

DEBORAH ANNE CZUBA is an Assistant Federal Public Defender in the Capital Habeas Unit of the Arkansas Federal Public Defender’s Office. Prior to this, Deborah worked with the New York Capital Defender Office, and later served as Deputy Director for Investigation and Mitigation and Senior Staff Attorney with the Georgia Capital Defender Office. Deborah graduated from Wellesley College in 1992 and from Cornell Law School in 1995. During law school, Deborah worked as an intern with the South Carolina Death Penalty Resource Center, and as a research and teaching assistant for death penalty courses at Cornell Law School. Deborah has spoken at numerous national conferences on the death penalty (including NLADA’s Life in the Balance and for the NAACP Legal Defense Fund), specifically on the topics of mental retardation and the death penalty, and mitigation investigation.

With the foregoing keenly in mind, here’s my proposal.

Unless the House Judiciary Committee is run entirely by hypocrites, I think the Committee ought to fire one of its lawyers every time a federal public defender gets the axe as a result of the sequester.  Perhaps Mr. Branden Ritchie, Deputy Chief of Staff and Chief Counsel for the House Judiciary Committee, would be a good candidate for the first sequester generated pink slip.

I don’t know anything about Mr. Ritchie. I assume that he is a very competent lawyer and a really good person. But, hey, shit happens.


Federal trial judges should ditch the black robes for something more regal!

It is not at all clear why it is that federal judges, and particularly federal trial judges, wear plain black robes. Before the Founding, I am told that judges in America wore wigs and robes of various colors. Jefferson (ever the liberal except when refusing to free his own slaves) thought American judges should not wear robes or wigs. Adams, as you might imagine, took the contrary position.  Someone apparently worked out a compromise, wigs were out but black robes were in.

What’s even more historically obscure is why judges have favored black at all.  Historians of the robe have fought to the death over this issue. One group suggests that:

  • In England, before 1694, the most popular colors for judge’s robes were green, scarlet (red) and violet – apparently, you had a choice!
  • In 1694, Queen Mary II of England died and was buried in Westminster Abbey in London. At her funeral, all the judges in attendance wore their official judicial robes – but wore them in the color black as a symbol of mourning for their deceased monarch. The mourning period for the passing of Queen Mary was extended over several years and most, if not all, judges continued to wear black robes.
  • By the time the mourning period had ended the wearing of black robes had been established as the norm for judges in the courtroom.


The other group argues that there are images predating 1694 of legal officials wearing simple black.  “Clearly black robes were  ‘in the mix’  so to speak before Queen Mary II died.”

Regardless, black is so, how I shall I say it, pedestrian.  It does not properly reflect our superior status as FEDERAL TRIAL JUDGES. After all, the Constitution makes our salaries immune from the sequester. Personally, we don’t have to make any sacrifice at all while Congress destroys the judiciary.

If we want to throw money around for “real-time” and court reporters because it saves us from working our poor little fingers to the bone writing notes, well, then, great men and women are entitled to their prerogatives. Let the assistant federal public defender–who withdrew from a death penalty case yesterday because she had been fired under the sequester–eat cake.  Some thing are more important than others.  Because some things are more important than others, I think we ought to start wearing better looking robes.

I propose a rig like this one:

Gilbert Stuart’s portrait of John Jay, first Chief Justice of the United States Supreme Court, 1794

Gilbert Stuart’s portrait of John Jay,
first Chief Justice of the United
States Supreme Court, 1794.

What do you think?


More on Federal Public Defenders and the sequester

If you care about federal criminal law, please read “Sequestration’s Biggest Victim: The Public Defender System.”  It appeared in the Huffington Post yesterday.  While the Huff Post is not my favorite, the article is a very good one, and well worth reading.


As a purely normative matter, if a bear shat in the woods should anyone (besides bears) care?

The title question to this post strikes me as far more consequential than the hubbub about whether the Senate will or will not change a procedural rule requiring 60 votes to wake up. But, then again, I have this obsessive compulsive drive to worry about shit that matters such as the destruction of the federal judiciary via the sequester.

I have to stop now.  I must take my pills.


The death penalty is not different–at least when it comes to the sequester

I took the week off to visit with the kids and grand kids from China.  I thought nothing could fuck up my mood.  I was wrong.

After the first judge who had the case died, I accepted an assignment of a habeas death penalty case in another district. The guy is facing the death penalty for the murder of a child. It is undisputed that the petitioner suffered serious physical damage to the brain when he was about 12 years old after being hit by a truck. An MRI of the brain shows atrophy of a significant portion of the frontal lobe.  The Federal Public Defender and its excellent Death Penalty Habeas Unit has been appointed to represent the guy.  For all involved, the case is a hard one, both legally and emotionally. It has been dragging on forever. Today, I learned that one of those fine defense lawyers has lost her job because there is no money to pay her, and she must move to withdraw. That’s the real face of sequester and it enrages me.


An “old school” newspaper is a wonderful thing

The Omaha World Herald’s Erin Grace has a column on the sequester and its impact on the FPD for the District of Nebraska in today’s edition.  It is a nice piece of writing.  It tells a story while also educating the lay reader why he or she should care about such things.

The OWH is one of the few remaining “old school” newspapers.   Perhaps because it is employee-owned, the paper still devotes a lot of time and money to hiring great writers to generate fresh copy.  They are given the time to research and write about a wide range of subjects.

There are three “metro” columnists at the OWH.  Erin’s colleagues, Mike Kelly and Mathew Hansen are equally good writers.  Although I don’t know these three well, I know them well enough to say that they are funny, smart, objective, and tough-minded.  What’s more they turn out high quality material at remarkable pace.  I marvel at their skill and productivity.

I am glad to be in a  market where there remains vibrant local newspapers.   Electronic media like blogs are great, but consistently good writing by people with seasoned judgment remains a fixture at traditional newspapers.  How I wish there were more.


PS  Many years ago, Dave Thompson was a OWH writer who covered the courts in the Eighth Circuit.   When I was a law clerk, Dave scooped the Wall Street Journal, on a very high-profile business case, with national and international implications, that had been argued on an emergency basis in Omaha.  He got the scoop because the judges trusted Dave’s judgment and integrity.  But, Dave was not in the “tank” for anyone.  He could be a pain in the butt.  For example, he figured out where the grand jury held its meetings in the old federal building in Omaha.  He would hang out in the hallway to see who went in and came out.  This so annoyed the United States Attorney, that a special wall was built to shield Dave from seeing again what he had seen before.  If I remember correctly, the structure became known as the “Dave Thompson wall of shame.”

Kopf richly deserves the snark, but don’t hurt the innocent in the process

Over at SL&P numerous commentators snarked about the supplemental appropriation request that has been submitted to Congress by the judiciary.  Sentencing Law and Policy, May 15, 2013, US Judicial Conference seeks emergency funding due to “an unprecedented financial crisis that could seriously compromise [its] Constitutional mission”

While there was grudging acknowledgment that the judiciary had budget problems, there was near universal agreement that federal judges are pompous asses, who spend huge sums of money on themselves, and they don’t deserve a dime.  The vitriol directed at federal judges was very revealing.

Take this comment, for example, by a really smart and very experienced lawyer:

I would give the money to the PD’s, who are underpaid to start with, but not to the courts. Judges are already more akin to royalty than almost any other sort of government employee. They should learn the wisdom my father taught me: “Don’t have the money? Then do without.”

 If they think this makes their lives too hard, they can resign. Replacements won’t be hard to come by. I know from having worked in White House Counsel’s Office that dozens if not hundreds of qualified lawyers would happily kill their grandmothers to get appointed to the federal bench.

Or take this follow-on comment:

As to the flushness of the judiciary: I invite you to go into any federal judge’s chambers (there’s a reason they’re called “chambers” not “offices”) and draw your own conclusions.

“Rather, it appears from the letter, it’s mostly going to FPD and probation.”

Sure, that’s what they say now.  But even if it turns out to be true, I know from considerable experience (what’s yours?) that agency “emergency” requests are, more often than not, crying wolf. To the extent there may be genuine hardship, however, that’s unfortunate, but everyday people have to learn to do with less than the ideal, and it is time for the government — judicial branch included — to learn that same unpleasant lesson.

I more than willing to plead guilty.  I am among the most arrogant of the bunch.  Indeed, I was pissed off when I lost my Article III toilet.  However, the supplemental appropriation is not intended for federal judges.  Rather, it is intended to:

*  avoid really hurting folks like my CRD or a docket clerk or a pretrial service officer or probation officer;

* avoid hurting panel attorneys by delaying payments to them (remember their fee requests are often slashed with a dull knife anyway);

* avoid further decimating the ranks of the FPDs.

I have been around here for 25 years.  I have never seen anything like the devastation that the federal judiciary is facing.  Since the account for employee salaries makes up a huge proportion of the federal judiciary’s budget, there is almost nothing that can be done to further reduce the judiciary’s operating budget.*  Please believe me, I know a lot about budgetary matters, and I am not crying wolf.

The judges will be fine, no matter what.  The rest of the judiciary, however, is at peril. Real human beings who have done nothing wrong are caught in the cross hairs of a fight they did not pick and cannot do anything to resolve.

Snark all you want about a judge like me.  I richly deserve all that you throw at me (and probably more).  But, for God’s sake, don’t give comfort to the troglodytes in Congress who see hurting federal judicial employees as something to savor.


*Remember that the total budget for the judiciary is less than 1% of the federal budget.  Because it is so small, and because the great bulk of its operational expenses is for employee payroll, sequestration has an unusually devastating impact on the judiciary.

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