2008-02 Feb

THIRDNewsletter

of the

Federal

Courts

Vol. 40

Number 2

February 2008BRANCH

INSIDE

THE

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

See Summits on page 2

See Funding on page 5

I N - D E P T H

National Summits Help Federal Courts Prepare for Sentence Reduction Requests

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

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

Judiciary Funded For FY 2008

Fiscal year 2008 funding for the Judiciary was rolled up with 10 other appropriations bills and passed by Congress on December 19, 2007, as the 2008 Consolidated Appropria-tions Act. The President signed the bill into law the day after Christmas. The Judiciary received $6.246 billion in FY 2008, a 4.5 percent increase over FY 2007.

“Despite constrained allocations to our appropriations subcommittee, the Judiciary was funded at an extremely good level,” said Administrative Office Director James C. Duff. “We believe this bill provides sufficient resources to finance continuing oper-ations in the courts and to address the

Rate Increase for CJA Attorneys

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

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

The Third Branch n February 2008

2

After amending the Federal Sentencing Guidelines to reduce penalties for crack cocaine offenders sentenced on or after November 1, 2007, the U.S. Sentencing Commis-sion (USSC) voted a month later to make the amendment retroactive.

The USSC, an independent agency within the federal Judiciary, amended the Guidelines to lower the base offense level for crack cocaine by two levels. For example, the penalty for a first-time offender found with 10 grams of crack would be reduced by two levels, from a range of 63–78 months in prison to a range of 51–63 months.

The USSC initially estimated that 19,500 prison inmates might be affected, but its estimate has increased to nearly 21,000 to account for offenders sentenced after July 31, 2007, when the initial analysis was conducted. Many court offi-cials believe the number of affected inmates may be far greater and that many inmates not eligible for a reduction will file requests anyway.

“At the end of the day, justice will be done, and the process will not be disruptive,” Judge Paul Borman (E.D. Mich.) told those who gathered in Charlotte. “Meetings like this one will help ensure that.”

The meetings were conceived and hosted by Chief Probation Officers Greg Forest of the Western District of North Carolina and Doug Burris of the Eastern District of Missouri.

Since Congress established a 100-to-1 ratio of penalties between crack and powder cocaine in the Anti-Drug Abuse Act of 1986, controversy has swirled around the discrepancy. The amendment’s retroactivity had been supported by the Judicial Confer-ence’s Criminal Law Committee as a modest step toward fairness.

“The Committee believes that the burden to the courts and probation offices associated with resentenc-ings is not a sufficiently counter-

vailing consideration . . . The Judicial Conference has previously expressed its view that the disparity between penalties for powder cocaine and crack cocaine is not support-able and harms public confidence in the federal Judiciary,” stated a November 2, 2007, letter from the Criminal Law Committee to Judge Ricardo Hinojosa (S.D. Tex.), who chairs the U.S. Sentencing Commis-sion.

Several common themes for dealing with the reduction requests dominated the two meetings:

•Teamworkamongprobation,fed-eral defender, and U.S. attorney offices as well as the Federal Bureau of Prisons and court clerk staffs will be essential.

•Itisalsoessentialthateachofthe 94 judicial districts have a procedural plan in place before the retroactivity amendment’s March 3 effective date.

•Anysuchplanshouldfacilitatea three-step determination: whether a defendant is eligible for a reduction; the extent of reduction allowed; and other factors, such as public safety, that may influence reduction and release decisions.

•Reductionsarenotautomatic.Determinations must be made by a judge on a case-by-case basis.

•Itisgenerallyagreedthattheoverwhelming majority of cases will not require court hearings and will be resolved on written filings.

•Priorityshouldbegiventoresolving requests concerning inmates who, if successful, would be eligible for immediate release. (Consideration of a sen-tence reduction can result from a request from a defendant or the director of the Bureau of Prisons, or by a judge’s order.)

•Itis,andwillremain,afluidprocess. Some issues may not be resolved until they are fully litigated.

One issue to be resolved, most likely on a district-by-district or even judge-by-judge basis, is whether all defendants who seek reduced sentences should be represented by court-appointed counsel.

Federal public defenders believe each inmate deemed eligible for a reduction should have legal represen-tation. “It may well be that 90 percent

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

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


3

of the cases will result in agreements if defendants are represented by counsel,” said Amy Baron-Evans, who is the National Sentencing Resource Counsel to the Federal Public and Community Defenders. “This is about basic fairness.”

Judge John Gleeson (E.D. N.Y.), chair of the Judicial Conference Committee on Defender Services, voiced his agreement and described the genesis of the sentencing struc-ture now subject to modification. The Sentencing Commission did not use pre-Guidelines average sentences in fashioning the sentencing grid but rather prescribed much higher sentences so they would coincide with the mandatory minimum sentences enacted in 1986.

Gleeson quoted the USSC’s 15-year report, issued in November 2004, which described the impact of linking the Guidelines ranges to

the mandatory minimums: “[N]o other decision of the commission has had such a profound impact on the federal prison population . . . (and) had the effect of increasing prison terms far above what had been typical in past practice.”

Gleeson concluded, “These are grossly unfair sentences, especially for non-violent crack offenders, and the retro-activity amendment is only a small step toward addressing the unfairness. This is a class of offenders who got a raw deal . . . The question ought to be, ‘Why shouldn’t they get a lawyer?’”

He agreed, however, with another judge’s suggestion that having federal public defenders

help review all defendants’ requests early in the process might negate the need for individualized counsel.

Some judges questioned the need for counsel in every case, especially those in which a sentence reduction is inap-

See Summits on page 6

See Congress on page 4

110th Congress Acts on Judiciary InitiativesAs the first session of the 110th

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

Court Security/Redaction AuthorityThe Court Security Improvement

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

sensitive information from the finan-cial disclosure reports of federal judges; it allows judges to use their courthouse address instead of their home address when applying for state-issued documentation, such as driver’s licenses; and it protects federal judges against the malicious recording of fictitious liens by creating a new federal criminal sanction.

“The adequate security of federal judges and their families has been a long-term issue and concern,” said Administrative Office Director James C. Duff. “This law makes much-needed improvements in the way in which the federal Judiciary is protected. Our thanks go to Senate Majority Leader Harry Reid (D-NV), Minority Leader Mitch McConnell (R-KY), Judiciary Committee Chair Senator Patrick Leahy (D-VT), and ranking minority member Senator

Arlen Specter (R-PA), along with Sena-tors Richard Durbin (D-IL), Edward Kennedy (D-MA), John Cornyn (R-TX), Orrin Hatch (R-UT),

Charles Schumer (D-NY), and Susan Collins (R-ME). In the House, we are especially grateful to Representative John Conyers (D-MI), chair of the House Judiciary Committee; ranking minority member Representative Lamar Smith (R-TX); and Subcom-mittee on Crime, Terrorism, and Home-land Security chair, Representative Bobby Scott (D-VA), and ranking member Representative Louis Gohmert (R-TX), for their support.”

Judge Julie Carnes (N.D. Ga.) moderated a judges panel discussion in Charlotte. She is the new chair of the Judi-cial Conference Committee on Criminal Law.

Senator Patrick J. Leahy (D-VT)


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The Court Security Improve-ment Act of 2007 contains additional provisions of interest to the Judiciary. Those provisions will:

•givemagistratejudgesFederalEmployees Group Life Insurance (FEGLI) coverage comparable to that of Article III judges. At the last moment, FEGLI coverage for territorial and bankruptcy judges was struck from the House ver-sion of the bill because of strict pay-as-you-go budget rules that require an identified offset for this spending. The Admin-istrative Office will pursue immediately the “FEGLI fix” for bankruptcy judges and territorial judges in the second session of the 110th Congress;

•eliminateonejudgeshipfortheCourt of Appeals for the District of Columbia and create one judge-ship for the Court of Appeals for the Ninth Circuit; and

•authorizeseniorjudgeswhocarry a 50 percent workload to participate in court management proceedings such as the appoint-ment of court officers and mag-istrate judges, rulemaking, and other administrative matters.

Cameras in the CourtroomIn the first session of the 110th

Congress, bills allowing broadcast media coverage of court proceedings were introduced in both chambers.

In October 2007, the House Judi-ciary Committee amended and reported H.R. 2128, the Sunshine in the Courtroom Act of 2007. The bill would authorize the presiding judge to permit the “photographing, elec-tronic recording, broadcasting, or tele-vising to the public of any court proceedings” in a federal appellate court (including the Supreme Court) or a district court. Under the provi-sions of H.R. 2128, the face or voice of witnesses could be obscured, and jurors could not be televised in a court

proceeding. The Judicial Conference would be able to promulgate guide-lines for judges on the management and administration of cameras in the courtroom. The authority for camera coverage in the district courts would sunset three years after enactment of the bill. The House did not vote on the legislation before the session ended.

As the first session drew to a close, the Senate Judiciary Committee considered a similar bill, S. 352. On December 6, 2007, the Committee amended the bill, adopting some of the same changes as the House Judi-ciary Committee. In addition, the Senate Judiciary Committee reported S. 344, a camera coverage bill appli-cable only to the Supreme Court. The bill would require the Court to permit television coverage of all open sessions unless it decides, by majority vote, that allowing such coverage would consti-tute a violation of the due process rights of one or more parties.

The Judicial Conference strongly opposes H.R. 2128 and S. 352 because they would permit the use of cameras in the federal trial courts and change the present policy of allowing a court of appeals first to determine whether to permit cameras in that circuit.

Judges’ Pay Federal judges received a 2.5

percent cost-of-living increase for FY 2008. (See chart on page 9.) In addi-tion, progress was made toward Congressional passage of federal judi-cial salary restoration legislation. In his Year-End Report, Chief Justice Roberts thanked the House and Senate leader-ship, as well as the President, for their bipartisan support. Passage of a judges’ pay bill remains a high priority for the Judiciary in 2008.

Last session, in December 2007, the House Judiciary Committee reported an amended version of H.R. 3753, the Judicial Salary Restoration Act of 2007 by a vote of 28–5. As amended, the bill would give federal judges their first real pay raise since 1991, while repealing Section 140 of P.L. 97–92

(which requires express congressional approval to permit judges to receive a cost-of-living adjustment as provided annually under the Ethics Reform Act of 1989) and authorizing future annual pay adjustments at levels received by General Schedule employees. The bill would also modify some retirement rules for judges.

Shortly after the House Judiciary Committee action, the Senate Judi-ciary Committee began consider-ation of S. 1638, its version of the Judicial Salary Restoration bill. The Committee adopted the same pay levels, cost-of-living, and service provisions as the House bill, as well as additional amendments. The bill was reported out of committee in the early weeks of the second session.

Congress continued from page 3

Outside Earned Income Ceiling for FY 2008

With the January 1, 2008 increase in the basic pay for Executive Schedule employees, the ceiling on outside earned income for federal judges also increased, from $25,200 in 2007 to $25,830 in 2008. The ceiling applies only to outside earn-ings and not to investment income, royalties, pensions, and similar income sources that are specifically excluded by regulation.

The Ethics Reform Act prohibits high-ranking government offi-cials from having outside earned income exceeding “15 percent of the annual rate of basic pay for Level II of the Executive Schedule.” Effec-tive January 1, 2008, the basic pay for Executive Level II increased to $172,000.


growth in workload, especially that associated with immigration enforce-ment.” In the Act, Congress directed that a $25 million emergency appro-priation be made available “to address critically understaffed work-load associated with increased immi-gration enforcement.”

With the decision by Congressional leaders to reduce spending in order to resolve a budget impasse with the President, FY 2008 had the potential for being a particularly tight year for appropriations. For most of the Exec-utive Branch, it was. Final allocations for our appropriations subcommittee were reduced by $1 billion below their initial allocation.

“Obtaining an increased funding level for the federal courts in such a contentious budget environ-ment demonstrates that the Judi-ciary remains a funding priority for Congress,” said Duff. “It also reflects the concerted and sustained efforts of the Judicial Conference Budget Committee led by Judge Julia

Gibbons (6th Cir.), judges around the country who are instrumental in our Congressional outreach initiative, and our AO staff.”

The Judiciary’s Salaries and Expenses account received $4.623 billion. At this level, the Executive Committee was able to approve a financial plan that provides court units with an overall increase of 7.7 percent in allotments over FY 2007. It is expected that those court units experiencing workload increases—primarily district clerks and probation and pretrial services offices—could continue to hire additional staff in FY 2008. Immigration-related workload is addressed with $14.5 million of the $25 million in emergency spending provided by Congress.

The Defender Services account received $846.1 million, or a 9 percent increase over FY 2007. This includes the remaining $10.5 million of the $25 million Congress provided in emergency spending for immigration-related workload. The appropriation included an

hourly pay rate increase for criminal justice act attorneys.

The Court Security account received $410 million, an 8.3 percent increase. Congress also approved a pilot project requested by the Judi-ciary to have the U.S. Marshals Service assume perimeter security functions, currently performed by the Federal Protective Service, at a limited number of courthouses.

The Consolidated Appropriations Act of 2008 also included general provisions that:

•createaplaceofholdingcourtin Vancouver, in the Western District of Washington;

•extendthetemporaryjudgeshipsin the District of Kansas and the Northern District of Ohio for one year; and

•givetheJudiciarytenantalterations authority to contract directly for projects costing under $100,000 in lieu of con-tracting through the General Services Administration.

5

Funding continued from page 1

Judiciary Appropriations ($000) Appropriation Account FY 2007 FY 2008 FY 2008 Enacted President’s House Senate Final Appropriations Budget Mark Mark Approprations

U.S. Supreme Court Salaries & Expenses $62,576 $66,526 $66,526 $66,522 $66,526 Care of Building & Grounds 11,427 12,201 12,201 12,201 12,201 Subtotal 74,003 78,727 78,727 78,723 78,727U.S. Court of Appeals for the Federal Circuit 25,311 28,538 27,976 27,438 27,072U.S. Court of International Trade 15,825 16,727 16,544 16,632 16,632Courts of Appeals, District Courts, & Other Judicial Services Salaries & Expenses 4,480,521 4,858,554 4,664,689 4,714,090 4,623,361 Defender Services 776,283 859,834 830,499 840,601 846,101

Fees of Jurors 60,945 62,350 62,350 63,081 63,081 Court Security 378,663 421,789 396,476 412,720 410,000 Subtotal 5,696,412 6,202,527 5,954,014 6,030,492 5,942,543

Administrative Office 72,377 78,536 75,667 78,536 76,036Federal Judicial Center 22,874 24,835 23,994 24,475 24,187Judicial Retirement Funds 58,300 65,400 65,400 65,400 65,400U.S. Sentencing Commission 14,601 16,191 15,477 15,477 15,477 Total, the Judiciary $5,979,703 $6,511,481 $6,257,799 $6,337,173 $6,246,074


6

plicable. “Our court thinks we need to have more discussion about that,” said Judge Lance Africk (E.D. La.)

Another significant issue, one which may not be resolved without litigation, is whether the Supreme Court’s 2005 decision in United States v. Booker, in which the Justices rendered the Sentencing Guidelines advisory, applies to a defendant’s sentence-reduction request. If so, a judge might not have to limit relief to a two-level reduction.

For its part, the Sentencing Commission view is that an inmate’s sentence-reduction request does not trigger a full resentencing, and that under the relevant statute and policy statement the court is limited to the two-level reduction as provided in the amended Guideline.

two basic groups. The first group is those who might be eligible for release in 2008, 2009, or 2010, and the second group is the rest,” she said. “We need to get the first group of defendants to the front of the line. The second group of defendants will be handled as motions are filed by the defendants, and we are recom-mending that judges use the same basic procedure for their requests,” Fawsett said.

Chief Judge Irene Keeley (N.D. W.Va.) presides over, in her words, “a small district that will face an awful lot of cases” due to the retroactivity amendment—perhaps as many as 800 for two active judges and two senior judges. A court task force already has drafted a plan for “how we’re going to deal with this,” she said.

tion officer in the Northern District of West Virginia. “This is going to fall to probation officers.”

Steve Whisenant, chief proba-tion officer for the Eastern District of Virginia, noted that “a lot of people could be coming out quickly” in his district, and suggested that a district’s Defendant/Offender Work-force Development plan might be used to help those released on, or soon after, March 3.

Although 37 percent of all federal inmates are non-citizens, a much smaller percentage of crack offenders—5.5 percent—are non-citizens, who on release from prison will be handed over to immigration officials for deportation.

The anticipated volume of requests presents logistical issues for those responsible for providing judges with what they need to make their decisions. A key source of information is the Bureau of Prisons (BOP). “It looks like we’re all going to learn a lot about the BOP in the next few months,” Judge Julie Carnes (N.D. Ga.) told court officials. Carnes is the new chair of the Judi-cial Conference Committee on Crim-inal Law.

Jerry Vroegh, an administrator in the BOP’s Correctional Programs Division, explained to court officials that probation officers may access any inmate’s central file—containing a presentence report and judgment and commitment order—at the inmate’s local institution. BOP case managers can be called on for help, Vroegh added.

He suggested that requests to BOP be communicated via the web-based E-designate system, and that his agency will seek a 10-day delay in the release of any inmate so, among other things, DNA samples can be collected, victims and law enforce-ment officials notified, and release paperwork completed.

See Summit on page 9


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

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

“We are dividing defendants into

Various court officials at the Char-lotte and St. Louis meetings voiced concerns about releasing some inmates into the general popula-tion before they spend some time in halfway houses and the possibility of inmates being freed without fully developed release plans.

“What’s needed in each case is viable employment and a housing plan,” said Jeff Givens, chief proba-


7

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

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

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

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

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

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

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

STEP 1STEP 2

STEP 3

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STEP 4

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THE

THIRD BRANCH

Published monthly by theAdministrative Office of the U.S. Courts

Office of Public AffairsOne Columbus Circle, N.E.

Washington, D.C. 20544(202) 502-2600

Visit our Internet site at http://www.uscourts.gov

DIRECTORJames C. Duff

EDITOR-IN-CHIEFDavid A. Sellers

MANAGING EDITORKaren E. Redmond

PRODUCTIONLinda Stanton

CONTRIBUTORSDick Carelli, AO

Please direct all inquiries and address changes to The Third Branch at the above address or to [email protected].

JUDICIAL BOXSCORE

J U D I C I A L M I L E S T O N E S

As of February 1, 2008

Courts of Appeals

Vacancies 14 Nominees 11

District Courts

Vacancies 31 Nominees 16

Courts with“Judicial Emergencies” 19

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

Appointed: John Daniel Tinder, as U.S. Court of Appeals Judge, U.S. Court of Appeals for the Seventh Circuit, December 28.

Appointed: Joseph N. Laplante, as U.S. District Judge, U.S. District Court for the District of New Hamp-shire, December 28.

Appointed: Thomas D. Schroeder, as U.S. District Judge, U.S. District Court for the Middle District of North Carolina, January 8.

Appointed: Amul R. Thapar, as U.S. District Judge, U.S. District Court for the Eastern District of Kentucky, January 4.

Appointed: Laura S. Taylor, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Southern District of California, January 10.

Appointed: James P. Hutton, as U.S. Magistrate Judge, U.S. District Court for the Eastern District of Wash-ington, January 14.

Appointed: Michael J. Hlucha-niuk, as U.S. Magistrate Judge, U.S. District Court for the Eastern District of Michigan, December 24.

Appointed: Kathleen Kay, as U.S. Magistrate Judge, U.S. District Court for the Western District of Louisiana, December 17.

Appointed: Gregory J. Kelly, as U.S. Magistrate Judge, U.S. District Court for the Middle District of Florida, January 14.

Appointed: Kathleen M. Tafoya, as U.S. Magistrate Judge, U.S. District Court for the District of Colorado, January 4.

Elevated: U.S. Court of Appeals Judge Robert H. Henry, to Chief Judge, U.S. Court of Appeals for the Tenth Circuit, succeeding U.S. Court of Appeals Judge Deanell Reece Tacha, January 1.

Elevated: U.S. District Judge David F. Hamilton, to Chief Judge, U.S. District Court for the Southern District of Indiana, succeeding U.S. District Judge Larry J. McKinney, January 1.

Elevated: U.S. District Judge Jon P. McCalla, to Chief Judge, U.S. District Court for the Western District of Tennessee, succeeding U.S. District Judge James Dale Todd, January 1.

Elevated: U.S. District Judge Kathryn H. Vratil, to Chief Judge, U.S. District Court for the District of Kansas, succeeding U.S. District Judge John W. Lungstrum, January 1.

Elevated: U.S. Bankruptcy Judge Dennis R. Dow, to Chief Judge, U.S. Bankruptcy Court for the Western District of Missouri, succeeding U.S. Bankruptcy Judge Jerry W. Venters, January 1.

Elevated: U.S. Bankruptcy Judge James D. Gregg, to Chief Judge, U.S. Bankruptcy Court for the Western District of Michigan, succeeding U.S. Bankruptcy Judge Jo Ann C. Stevenson, October 3.

Elevated: U.S. Bankruptcy Judge John T. Laney, III, to Chief Judge, U.S. Bankruptcy Court for the Middle District of Georgia, succeeding U.S. Bankruptcy Judge Robert F. Hershner, Jr., January 14.

Elevated: U.S. Bankruptcy Judge Marilyn Shea-Stonum, to Chief Judge, U.S. Bankruptcy Court for the Northern District of Ohio, succeeding U.S. Bankruptcy Judge Randolph Baxter, January 3.

Senior Status: U.S. Court of Appeals Judge Daniel A. Manion, U.S. Court of Appeals for the Seventh Circuit, December 18.

Senior States: U.S. District Judge Fred Van Sickle, U.S. District Court for the Eastern District of Wash-ington, January 31.

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


9See Mediation on page 10

volume, but neither summit featured any hint of panic.

“The sky is not falling. This is do-able. It can be done efficiently and fairly,” said Criminal Division Chief Linda Hoffa of the U.S. Attor-ney’s Office in Philadelphia.

Hinojosa sounded a similar theme, stating, “There’s probably no one who can better handle quick changes in the law than the U.S. district courts.”

Court officials discussed the possibility of judges issuing release orders at least 10 days before their effective date as perhaps one way to avoid litigation over the proposed 10-day delay.

The BOP also is the best source for information on an inmate’s conduct while incarcerated, a possible factor in sentence-reduction and release decisions. And for those cases in which a judge wants a hearing and wants the defendant to participate, most BOP facilities have video-conferencing capabilities that would allow such participation without the cost and disruption of travel. (The nation’s 4,000 deputy U.S. marshals and other law enforcement officers took federal inmates to court appear-ances 770,000 times in the past year.)

Several court officials discussed in terms of “triage” the need to priori-tize processing requests for sentence reduction in light of the anticipated

COLA for Federal Judges in FY 08P.L. 110-161, the Consolidated Appropriations Act of 2008, waived Section

140 of Public Law 97-92. Consequently, justices and judges of the United States are authorized to receive a cost-of-living adjustment for fiscal year 2008. The new salaries for FY 2008 are:

Chief Justice ............................................................................................$217,400

Associate Justices ...................................................................................$208,100

Judges

U.S. Court of Appeals .......................................................................$179,500

U.S. District Courts ...........................................................................$169,300

U.S. Court of International Trade....................................................$169,300

U.S. Court of Federal Claims ...........................................................$169,300

U.S. Bankruptcy Judges ....................................................................$155,756

U.S. Magistrate Judges (Full-Time).................................................$155,756


Most Bankruptcy Courts Offer Mediation

“The beauty of mediation is that it can give those involved in a bank-ruptcy case a good feeling about the legal system,” Bankruptcy Judge Barry Russell (C.D. Cal.) said. “If you can help resolve your own dispute, you feel much better about the process and are much more likely to live up to the promises you make.”

Mediation, defined as facilitated negotiation, is offered by more than two-thirds of the nation’s 90 federal bankruptcy courts. (An informal Federal Judicial Center survey places the number at 62, but notes that additional bankruptcy courts offer other forms of alternative dispute resolution other than mediation.)

Those courts vary as to how they authorize and organize the media-tion process, and there exists great variation in how frequently it is used. But the availability of media-tion for creditors and debtors has drawn praise from judges and court staff alike.

“It is a valued process,” said Chief Bankruptcy Judge Judith Wizmur (D. N.J.), whose court has offered mediation for over 10 years. “Use of mediation has not been particularly high, but it has proved to be very helpful in some cases.”

Her court’s website encourages parties to use its mediation program “as a cost-effective means to settle disputes that may arise.”

This site, at www.njb.uscourts.gov/mediation, also notes that, “Mediation is intended to afford litigants a less expensive and more expeditious alternative to tradi-tional litigation. The mediator’s role is to assist the parties in reaching a negotiated settlement by conducting meetings, defining issues, defusing emotion, and suggesting possible ways to resolve the dispute.”


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Mediation, continued from page 9

The U.S. Bankruptcy Court for the Western District of Pennsylva-nia’s website suggests that “almost all disputes are good candidates . . . . Mediation can be used in a wide variety of contested matters or adver-sary proceedings.”

In the Central District of Cali-fornia, 3,759 matters have been assigned to mediation since Russell helped design and make the process available in 1995. About 64 percent of those matters were settled.

“We have about 200 mediators, lawyers and non-lawyers, who have agreed to help resolve cases. The first day of their services is free, and rarely does a mediation go beyond that first day,” Russell said.

Compensation for mediators varies among the courts, as do other aspects of their mediation programs, autho-rized by local rule, general order, or procedure.

“Some bankruptcy courts began formally offering mediation in the 1980s, but the concept of negotiation, including facilitated negotiation, has always been present in expedited dispute resolution and plan formu-lation in bankruptcy courts,” said Robert Niemic, a senior research asso-ciate with the Federal Judicial Center and expert on mediation in bank-ruptcy.

One of the newer programs is offered by the U.S. Bankruptcy Court for the District of Arizona, which began its Alternative Dispute Reso-lution (ADR) program in 2004. That court has had nine cases assigned to mediation in the past three years, and Bankruptcy Clerk of Court Terry Miller reports that “the reaction has been very positive within our legal community.”

“The court worked very closely and very early on with the local bankruptcy bar to create a successful program,” Miller said. “A local ADR committee was created, and its membership consisted of judges, local attorneys, and clerk’s staff.”

Likewise, Bankruptcy Clerk of Court Michael Dowling of the U.S. Bank-ruptcy Court for the District of Hawaii reports that nine matters have drawn mediation assignments in the past three years, with six of them settled.

“Our judges promote mediation at the initial scheduling conference. Attorneys who are regular bankruptcy practitioners are aware of the program and generally are supportive,” Dowling said. “Some have volun-teered as mediators for an initial four hours at no charge for services.”

Mediation most often is volun-tary—all parties to a dispute must agree to the mediation assignment and, in some courts, on the mediator. But most bankruptcy courts with mediation also have a provision for its mandatory imposition in certain disputes. In Russell’s court, a local rule allows mandatory use of media-tion.

“Mediation is a settlement process, and sometimes a judge can under-stand that, due to strategic reasons, the parties are unwilling to come forward and have the dispute medi-ated. Mandatory mediation does not occur too often, but it is available to the judge,” Russell said.

Funding for Courthouses in FY 08 Appropriations

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


11

Local IT Initiatives Funded for FY 2008

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

Michigan Eastern Criminal Information Repository (MECIR)

The 2008 grant will allow the District Court and the Probation Office for the Eastern District of Michigan to develop the Michigan Eastern Criminal Information Reposi-tory. MECIR will replace the current manual process with a web-based application that develops the presen-tence reports provided to judges prior to sentencing. It also will enhance the existing automated system that creates the Judgment and Commit-ment order prepared by the court-room deputy.

MECIR’s centralized repository allows the extraction of case infor-mation from the Case Management system and defendant informa-tion from the Probation and Pretrial Services Automated Case Tracking System (PACT). Defendant informa-tion received from the U.S. Marshals Service is updated in MECIR, and automatically pushed to the PACT system. Judges, U.S. attorneys, defense counsel, and chambers staff are automatically alerted to each phase of the system. In addition, every transaction is time-stamped in the system to provide auditing of all processes and accountability.

MECIR will provide efficient data-handling, eliminate data redundancy, maximize data integrity, improve communication flow, and add flex-

ibility in the preparation of reports and documents.

Pro Se “Three Strikes” DatabaseWith a FY 2008 Local Initiatives

grant, the Ninth and Fifth Circuits will combine their efforts to design a tracking system for all pro se pris-oner-filed cases dismissed for being frivolous or malicious, or for failure to state a claim for relief. Under 28 U.S.C. § 1915(g), prisoners who have three or more such dismissals may be denied requests for future in forma pauperis funding. Pro se clerks will be able to use this data-base as a Judiciary-wide refer-ence tool to screen litigants who may have accumulated “strikes” in one or more federal court districts anywhere in the country.

Currently, the Ninth Circuit has a database that went live early in 2007, and the Fifth Circuit has a tracking system, created by the Eastern District of Texas in the mid-1990s, that monitors all Fifth Circuit prisoner litigants who have filed lawsuits deemed to have been frivo-lous. The circuits will collaborate on requirements and user needs, and share design and technical tasks to complete the project.

Automation Trainer’s Community of PracticeThe District Court for the Western

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

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

FAS4T Security Profile/Court Inventory Application

The District Court for the Northern District of New York, and the district’s Office of Proba-tion will receive a grant in FY 2008 to expand the capabilities of an automated inventory data-base application and a program that would generate self-popu-lating FAS4T security profiles for all FAS4T users. Both the data-base and program were originally funded by a FY 2006 Local Initia-tives IT grant. Currently, 73 court units use the inventory database application.

Enhancements to the appli-cations, prompted by court requests, include PDA func-tionality, an inventory import tool, an updated documenta-tion and installation package, a comprehensive audit of all FAS4T users based upon assignment of authorities and roles, an ability to audit internal controls based upon duties not captured within FAS4T; tracking of audit histories with details on what issues were discovered and how they were resolved; and auditing by court unit type. The additional grant will allow the Northern District to build upon the initial success of the project and significantly enhance capabilities.

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Work of Senior Judges

1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 Courts of Appeals

Participations in Oral Hearings and Submissions on Briefs Percent of All by Senior Judges 15.9 15.1 16.4 15.9 15.8 16.9* 17.2 18.0 17.1 18.8

District Courts

All Civil Cases and Criminal Defendants Terminated Percent of All by Senior Judges 17.1 17.2 18.1 17.7 17.9 17.8 17.3 16.5 17.0 18.2

All Trials Conducted Percent of All by Senior Judges 20.7 19.2 18.2 18.4 19.1 19.0 17.9 17.2 18.3 19.8

All Hours in Trial Percent of All by Senior Judges 20.4 18.5 18.4 17.9 18.3 17.6 16.6 15.6 16.0 19.1

All Hours in Other Proceedings Percent of All by Senior Judges 20.7 19.8 19.5 19.2 19.6 19.9 18.9 17.4 18.0 19.0

Senior Judges Continue to Provide Vital Help Year in and year out over the

past decade, senior judges—those who opted for that status instead of retiring at full pay—have shouldered a significant share of the work of federal district and appellate courts.

For the 12 months ending June 30, 2007, senior judges participated in 18.8 percent of all oral hearings and submissions of briefs in the appellate courts and terminated 18.2 percent of

all civil and criminal cases in district courts. Both percentages are up from those recorded in the previous 12 months—17 and 17.1.

Congress in 1919 first autho-rized judges to retire at age 70 after 10 years of service, and to continue to retain the judicial office and perform duties in retired status. In 1948, Congress provided that judges retiring from active service would

continue to receive the full judi-cial salary. Six years later, the minimum retirement age became 65, with 15 years of service.

A senior judge must do at least 25 percent of the work of an active service judge to keep staff and office space, but some judges continue carrying a full caseload after taking senior status.

Documents

2008-02 Feb