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.

Should senior status district judges retire as a group to get the attention of Congress?

As I noted yesterday, federal district judges who take senior status work for free.  They also do a hell of lot of work.

Consider this analysis:

For the district courts, there were 678 authorized judgeships (including
temporary judgeships) and 651 judges in regular active service in December
2009. The latter accounted for 78.8% of case terminations in 2009, while
judges in senior status accounted for the other 21.2% (including 26.8% of all
trials). It would require 174 district judges in regular active service to do the
case work performed by judges in senior status in that year. Taking vacancies
into account, this translates into 147 additional authorized district court

Stephen B. Burbank, S. Jay Plager, Gregory Ablavasky, Leaving the Bench, 1970-2009: The Choices Federal Judges Make, What Influences Those Choices, and Their Consequence,  161 University of Pennsylvania Law Review 1, 93 (2012).

If Congress continues to starve the federal judiciary of the money it needs to perform its core functions,  perhaps a significant symbolic act is in order.  At some point, senior district judges, who obviously love the federal judiciary enough to work for free, should consider retiring as a group.   Congress would then have to find a lot of money to pay for its intransigence.   While the impact on our active judicial colleagues and our staffs would be severe, there may be no other way to truly get the attention of Congress.  I am entirely serious about this.


Statement on Impact of Sequestration on Judiciary, Defender Funding

In case anyone is not convinced of the devastating impact of sequestration on the judiciary and particularly to federal public defenders, please read the following statement that I just received via e-mail from the Administrative Office of the United States Courts:


Statement of Chief Judge William B. Traxler, Jr., Chairman of the Executive Committee of the Judicial Conference of the United States.

The Executive Committee of the Judicial Conference is responsible for developing a spending plan for the federal Judiciary’s annual Congressional appropriation. This process involves significant input from Conference committees, and under the best of circumstances, is a difficult and complex task.

The current fiscal year presents unparalleled challenges. Budget sequestration has reduced the Judiciary’s overall funding by nearly $350 million from the level provided in Fiscal Year 2012. The impact of sequestration on the Judiciary is particularly harsh because the courts have no control over their workload. They must respond to all cases that are filed, whether they are by individuals, businesses, or the government.

In February 2013, the Executive Committee implemented a series of emergency measures that were intended to mitigate the impact of sequestration to the best extent possible. Nevertheless, significant shortfalls remain.

Funds have been reduced for probation and pretrial staffing, which means less deterrence, detection, and supervision of released felons from prison. Related funding for drug testing, drug treatment and mental health treatment were cut by 20 percent. Money for security systems and equipment has been cut 25 percent and court security officer hours have been reduced. Cuts in court staffing and hours threaten to impact public access and slow case processing. National information technology upgrades to improve infrastructure and financial management have been delayed. Sequestration is impacting federal court operations and programs throughout the country, including a $51 million shortfall in the FY 2013 funds in the Defender Services account.

The Judiciary is committed to doing its part to reduce the fiscal deficit our country faces. However, a significant problem arises when budget cuts impact our responsibilities under the Constitution. This happens when we cannot afford to fulfill the Sixth Amendment right to representation for indigents charged with crimes. The predictable result is that criminal prosecutions will slow and our legal system will not operate as efficiently. This will cost us all in many different ways.

With regard to the Defender account shortfall, at its April 16, 2013, meeting the Executive Committee examined all aspects of this account, scrubbed expenses where possible, and approved a final spending plan. After lengthy discussion, the Committee determined to allocate the available funds in a manner that, without further impacting payments to private attorneys, will at least limit the number of days that any defender organization staff must be furloughed. The result is that some federal defender offices will still be forced to furlough their employees up to 15 days. The Committee also approved deferral of payments to private panel attorneys for the last 15 business days of the fiscal year.

The defender program has no flexibility to absorb cuts of this magnitude without impacting payments to private counsel appointed under the Criminal Justice Act and Federal Defender Organizations, which pay for government lawyers to provide counsel to eligible defendants. Federal defender offices already have fired and furloughed staff, as well as drastically cut essential services. Criminal prosecutions have been delayed because defender organizations do not have the staff necessary to continue their representation of the defendant or the funds to pay for experts or other cases costs.
The Executive Committee’s allocation of funds is not a solution to the $51 million shortfall. It represents a conscientious effort to mitigate the adverse impact on both personnel and services. It also means that millions of dollars in expenses in this account will be shifted to FY 2014, even though they were not part of the Judicial Branch budget submission to Congress. This level of funding is unsustainable without relief from Congress.

The Judiciary will soon ask the Office of Management and Budget to transmit an FY 2013 emergency supplemental funding request to Congress to help ameliorate the impact of the sequestration cuts to defender services, probation and pretrial services, court staffing, and court security.*

In his 2012 Year-End Report on the Federal Judiciary, the Chief Justice said:

“A significant and prolonged shortfall in judicial funding would inevitably result in the delay or denial of justice for the people the courts serve.”

I share this grave concern.


* Emphasis added by RGK

The Federal Judiciary, and Federal Public Defenders in particular, are facing devastation and the Constitution is in peril–this is not hyperbole

(Photo credit:  Alex E. Proimos' photostream pursuant to a creative commons license,

(Photo credit: Alex E. Proimos’ photostream pursuant to a creative commons license,

Years ago, I had the privilege of drafting the plan that created the Federal Public Defender for the District of Nebraska.  Thus, it was, with utter despair, that I learned yesterday that the FPD for Nebraska will let go his senior criminal investigator (who is located in Lincoln) because of the dire budget situation.

The investigator, with 18 years of service to the FPD and additional years of service before that as a lieutenant in a metropolitan police department, is among the best and brightest.  He is the epitome of integrity, professionalism and just plain common decency.  He is universally liked and respected by everyone including his former law enforcement colleagues.

Because federal defenders are part of the judiciary, they are directly impacted by the crushing reductions in funding that the judiciary faces as a result of the sequester.  Indeed, it appears that Congress has singled out the Defenders (and Criminal Justice Act panel attorneys) for special damage.

I have been with the federal courts now, in one capacity or another, for over 25 years.  I served as chief judge and at other times I chaired our budget committee.  In short, I have “been around the block” when it comes to budget crisis.  I don’t scare easily.

But this I know with absolute certainty: Never before have the federal courts faced anything like the impending disaster brought about by the failure of Congress to appropriate the necessary pittance (less than 1% of the national budget) that is required to run the courts including most especially the Federal Public Defenders.

Judge Julia Gibbons, speaking for the entire judiciary, recently told Congress that “the Judiciary cannot continue to operate at such drastically reduced funding levels without seriously compromising the Constitutional mission of the federal courts.” Funding Cuts Will Compromise Federal Courts, Judges Tell Congress, (March 20, 2013)* (emphasis added).   She was not crying wolf.

There is no other way to look at it.  Congress, with its psychotic fixation on ideology, has begun to intentionally trash the Constitution, the federal judiciary and most particularly the Federal Public Defenders.  Unless they prefer a banana republic, where the rule of law belongs only to the corpulent political elite, it is time for the citizens of this country to wake up.


*Statement of the Honorable Julie S. Gibbon, Chair Committee on the Budget of the Judicial Conference of the United States Before the Subcommittee on Financial Services and General Government of the Committee on Appropriations of the United States House of Representative (March 20, 2013).

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