Report - New York County Lawyers' Association

1

Report on the Continuing Effect of Judicial Budget Cuts on The U.S. District Courts for the Southern and Eastern Districts

of New York

Prepared by the Task Force on Judicial Budget Cuts

New York County Lawyers’ Association

This report was approved by the Executive Committee of the New York County Lawyers’ Association as of September 4, 2013.

INTRODUCTION

Two years ago, NYCLA warned that cuts to the federal judicial budget threatened judicial independence and the rule of law.1 Despite our warnings and those of other bar associations, public interest groups, judges, attorneys and journalists, the budget cuts have continued and the situation has become increasingly perilous. The administration of justice has been seriously damaged by past budget cuts. As the crescendo of verbal and written support for our courts has gone unheeded by the legislative and executive branches of our government, our courts are now approaching a constitutional crisis.

Accordingly, NYCLA urges firm and decisive effort to resist and roll back the budget cuts, which jeopardize the rule of law and deprive the courts of sufficient resources to meet their constitutional obligations. The Task Force also urges that the public and their elected officials restore the federal judicial budget to levels whereby the courts are able to effectively and efficiently meet their constitutional mandates and to reject continued sequestration and other possible budget cuts that are threatened for the upcoming several fiscal years.

1 http://www.nycla.org/siteFiles/Publications/Publications1507_0.pdf

2

HIGHLIGHTS OF THE REPORT

Set out below are highlights of this report.

• The budget for the federal courts nationally comprises less than .2% of the overall federal budget and the courts have already stringently reduced their budget, with the result that the overall budget for the SDNY and the EDNY2 (minus rent) is lower now than it was in 2008.

Funds for pretrial and probationary supervision have been slashed, with the result that the courts are finding it difficult to monitor and supervise the 250,000 probationers and defendants awaiting trial under their supervision. The risk of harm to the public from insufficient supervision continues to mount.

Courthouse security has been cut 30% nationally, increasing the risk to litigants, parties, judges and courthouse staff.

Alternatives to incarceration, such as alcohol, drug and mental health treatment have been cut dramatically, increasing the risk of recidivism and threatening public safety.

Court clerks and court infrastructure have been under-funded, with the result that delays to the public continue to increase.

If sequestration continues or other budget cuts materialize, the courts may have to limit the number of civil trials that they conduct.

The courts are losing their most experienced and capable employees and are unable to fill vacancies.

The Federal Defenders, so important to the defense of indigent federal criminal defendants, have suffered a 20% reduction in their budget.

The SDNY Bankruptcy Court, one of the busiest in the nation, has suffered a reduction of staff of nearly 30% over the last several years, despite an increased caseload.

Collectively, these draconian cuts amount to an unprecedented assault upon the courts’ ability to fulfill their constitutional mandate.

BACKGROUND

The New York County Lawyers’ Association (NYCLA), an organization of more than 9,000 attorneys based in New York City, has long advocated for access to justice for all New Yorkers and has long supported the courts against attacks on their judicial independence. Over the years, NYCLA welcomed changes that enhanced access to justice while continuing to press for more and deeper reforms. Now, however, as reflected in this report, the painful cuts to the budget for the federal courts not only jeopardize the rule of law but significantly reduce access to justice and public safety in fundamental ways. 2 This report will refer to the Southern District of New York as the “SDNY” and to the Eastern District of New York as the “EDNY.”

3

For many years, NYCLA has written to our elected and appointed leaders, provided a forum for speeches, held hearings, conducted investigations and written reports on the dangers posed by cuts to the federal judicial budgets.3 Deeply concerned over the impact of judicial budget cuts, the NYCLA Board of Directors, on the recommendation of then President Stewart D. Aaron, established the Task Force on Judicial Budget Cuts on June 13, 2011, co-chaired by Hon. Stephen G. Crane, former Senior Associate Justice of the Appellate Division, Second Department, and NYCLA Past President Michael Miller, and composed of past and present NYCLA leaders.4 In 2011 and in early 2012, the Task Force conducted investigations, held an all-day public hearing and published extensive reports documenting the dangerous impact of the budgetary crises in both the state and federal courts in New York.5

As set forth below, NYCLA has conducted another extensive investigation, interviewing judges and court personnel and thoroughly canvassing publicly available articles, speeches and other resources. The Task Force concludes that our federal courts now face a far more dire crisis than they confronted in 2011 when we first looked at the impact of the budget cuts and the prospect for improvement looks even more bleak.

EXTENT OF BUDGET CUTS

To the casual observer, the federal courts do not look embattled. They still deliver justice at the highest level. Federal courthouses often are far more carefully maintained than their state counterparts. And federal judicial budgets over the last several years often have not suffered cuts as deep and extensive as state courts have suffered. Yet, over the last several years, cuts in the budgets of the federal courts have brought the federal courts to the brink of crisis.

As NYCLA reported in 2011, the budget for the EDNY and SDNY was cut by 7.6% in 2011.6 Following flat budgets in 2012, as a result of sequestration in 2013, the SDNY, EDNY and other federal courts were hit with a 10% funding allocation below the Fiscal Year 2012 level.7

Sequestration was a series of automatic, blunderbuss budget cuts imposed without reference to the merits of the programs that were cut. These cuts threaten the administration of justice in the federal courts. Sequestration reduced the judiciary’s overall funding levels by almost $350 million – an additional 4% cut. Partially as a result of sequestration, over 2,100 court staff were laid off over the last two years (a 10% decline), and up to 2,000 court employees could be laid off this fiscal year or face furloughs for one day a pay period – equivalent to a 10% pay cut.8 Sequestration has hit particularly hard at the “discretionary” 3 Some of our efforts are set out at: http://www.nycla.org/siteFiles/Publications/Publications1578_0.pdf; http://www.nycla.org/siteFiles/Publications/Publications1507_0.pdf




7 See Letter from Chief Judge Loretta Preska and the Hon. Gerald Rosen to Vice President Joseph Biden, dated August 13, 2013.

8 Id.

4

budget of the courts because 40% of the courts’ expenditures are “mandatory” – such as the salaries for judges and rent – and cannot be cut.

As a result of sequestration and prior cuts, the SDNY is functioning with 25% fewer personnel than it has requested and the EDNY faces a similar shortfall. Nationally, the courts’ current staffing level is the lowest it has been since 1999, despite significant workload growth during this period of time.9

Our federal judicial system threatens to buckle as court administrators find it increasingly difficult to fulfill the courts’ mandated functions while at the same time facing ruinous budget cuts. As Chief Judge Loretta A. Preska of the SDNY stated in the New York Law Journal: “We are barely limping along with the double-digit cuts we've seen the last two years . . . .We are so far past the muscle and into the bone here—I don't know how we can continue to provide the services we are constitutionally required to provide.”10

ANALYSIS

Over the years, NYCLA and many others have called for increases to the budget of the federal judiciary. Nonetheless, the judiciary has been forced to take more and more severe steps to reduce expenditures. As we discuss more fully in our recommendations below, these cuts are not only imprudent, but potentially unconstitutional. As Chief Judge Theodore McGee of the Third Circuit has noted, sequestration and other severe budget cuts could be unconstitutional. At a minimum, the cuts to the federal judicial budget have placed the federal judiciary on the brink of crisis. Chief Judge McKee argues that it “is not hyperbole” to describe the dire budget situation as a looming constitutional crisis. “We are not there today,” he said, “but every day we get closer to that point.”11

Our federal judiciary is the linchpin of a justice system that is the world’s envy and that safeguards our social and economic stability. However, our federal courts have now faced years of unrelenting budgetary pressure, which has corroded the courts’ ability to efficiently administer justice, undercut their ability to maintain public safety in the courthouse, and deprived them of the resources needed to supervise the hundreds of thousands of federal detainees who are released pretrial or post-trial. As Judge Julia Gibbons of the United States Court of Appeals for the Sixth Circuit has noted: “If sufficient funding is not provided to the courts, we cannot provide the people of the United States the type of justice system that has been a hallmark of our liberty throughout our nation’s history.”12

9 “Cuts to Courts, Probation are Severe,” American Police Beat (http://www.apbweb.com/featured-articles/2149-cuts-to-courts-probation-are-severe.html). 10 Id. 11 See Brennan Center for Justice, blog, Courts Become Pawn in Broader Political Struggles (Aug. 6, 2013) (available at http://www.brennancenter.org/blog/courts-become-pawn-broader-political-struggles). 12 “U.S.Courts, Agencies Brace for Sequestration,” New York Law Journal (Feb. 26, 2013) (http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202589546033&US_Courts_Agencies_Brace_for_Sequestration&slreturn=20130706232509).

5

While the courts cannot and should not be immune from the belt tightening that the entire government has faced, our courts are not in the same position as an administrative agency or bureaucracy. Yet, it seems that they are consistently treated as such. While the judiciary is a separate co-equal third branch of government with constitutionally mandated functions and obligations, it must rely upon the other two branches of government for funding. It is important to note that our courts consume merely two-tenths of one percent of the federal budget. Unlike an administrative agency or department of government, our courts cannot simply cut the services that they provide. As a constitutional matter, our courts cannot turn away cases or litigants that come before them. Nor does due process permit our courts to shortchange criminal defendants and other litigants with respect to the quality of the process that is provided. Second-class justice is not an option for our courts, regardless of economic and fiscal exigencies.

Despite these shrinking resources, the demands imposed upon our courts continue to burgeon nationally. As Judge Julia Gibbons observed: “Overall, the Judiciary’s workload is at or near record levels in most filing categories,” including increasing “bankruptcy, immigration, and pretrial and post-trial supervision needs.”

We are also concerned, as revealed by our investigation, that the budget cuts of the past several years have eroded morale and diverted the courts’ attention from the administration of justice to budgetary crises. As EDNY Chief Judge Amon pointed out, cuts have “reduce[d] public confidence in the judiciary and the morale of the court’s employees.” Instead of focusing on innovative programs to reduce recidivism or to streamline civil discovery, vital court time and attention must be directed to draining and demoralizing budgetary struggles. Moreover, the constant budgetary uncertainty results in wasted time and resources as the courts cannot make long-term plans but must instead cope with short-term budget pressure.

COST REDUCTIONS THE COURTS HAVE ACHIEVED

Chief Judge Preska was not exaggerating when she described the judiciary budget as cut to the bone. Our investigation revealed that the courts have engaged in dozens of measures to cut expenses, from reducing personnel costs through attrition and early retirement to deferring equipment repairs, maintenance and needed infrastructure upgrades, such as for information technology. As SDNY Judge Laura Taylor Swain has noted, “The overall budget for the [SDNY] (minus rent) is lower now than it was in 2008.”13 The EDNY's Fiscal Year 2013 budget (aside from rent) was less than Fiscal Year 2008 and less than the Fiscal Year 2005 budget in current dollars (adjusted for inflation).

As Judge Gibbons has pointed out, the current national staffing level of 20,100 personnel in the courts is the lowest since 1999, despite significant workload growth since that time.14

13 Letter from Judge Laura Taylor Swain to Barbara Moses, President of NYCLA, dated July 19, 2013. The rent to which Judge Swain refers is the rent that the SDNY pays to the federal government’s General Services Administration. 14 Statement of the Hon. Julia S. Gibbons, Chair of the Committee on the Budget of the Judicial Conference of the U.S., Before the Subcommittee on Bankruptcy and the Courts of the Committee on the Judiciary of the U.S. Senate (July 23, 2013) (http://www.judiciary.senate.gov/pdf/7-23-13GibbonsTestimony.pdf).

6

The current round of extreme fiscal constraint comes against a backdrop of years of cost-cutting in the federal courts. During the last three years, the budget of the courts has declined when inflation is taken into account. Moreover, the salaries of judges and their support staff have not increased, even to reflect cost of living, during those three years. Over those years, the federal courts, particularly in New York, reduced waste and streamlined operations. By way of example, the judicial branch reduced by 60% its request for new court staff in fiscal year 2012.15

Even as it achieves these operational efficiencies, the judiciary faces unparalleled demands on a number of fronts. While the courts have excelled in doing more with less, the system is near the breaking point and further cuts – at the time of an increasing (and constitutionally mandated) workload – simply cannot be absorbed.

PUBLIC SAFETY IS IN JEOPARDY

Pretrial and Post-Trial Supervision

Many members of the public may not realize that the federal courts supervise nearly a quarter of a million probationers and defendants awaiting trial.16 Additional budget cuts will diminish further the number of pretrial service and probation officers available to supervise convicted probationers released into the community. Cuts will also jeopardize the quality of supervision of accused pretrial defendants released on bail. As Chief Judge Preska has noted, “There's no escaping the fact that less supervision will lead to more crime and more danger to the community.”17

Nationwide, funding for salaries and operations in the probation and pretrial services system have been reduced 14% in Fiscal Year 2013 and resources for monitoring, mental health and substance-abuse treatment have been cut 20%. As a result of the budget cuts, the pretrial supervision staffing level in the EDNY is 67% below the level the court has requested. In the SDNY, there are 19 authorized pretrial services positions (one third of the total of 58) that cannot be filled. Since 2009, 28 probation positions (more than 20% of the total) have been cut.18 If additional cuts in the judicial budget are made (or if judicial funding remains flat) and these ratios become even more unfavorable, each officer will be unable to devote the time and attention required to deter and detect criminal actions on the part of probationers and pretrial

15 2010 Year End Report on the State of the Federal Judiciary (Dec. 31, 2010) (http://www.supremecourt.gov/publicinfo/year-end/2010year-endreport.pdf) 16 Id.

17 “Cuts to Courts, Probation Are Severe,” supra note 9.

18 Letter to Barbara Moses, supra note 14. See also Letter from Chief Judge Loretta A. Preska to the Hon. Charles Schumer, dated Aug. 23, 2013. Similarly, the SDNY’s Pretrial Services’ workload would warrant 58 staff members but it actually functions with only 38 employees. Id.

7

supervisees.19 Such cuts may actually result in increased expenditures if additional incarceration is required to make up for cuts in pretrial supervision.20

In addition, funds to permit searches of supervisees’ premises, by court order, have also been cut. Judge Swain explained that “location monitoring services for offenders at higher risk of dangerous non-compliant behavior have been cut by 24%.”21 Chief Judge Preska noted that random searches of one defendant's home yielded 40 rounds of ammunition and another search resulted in the seizure of some 70 grams of crack and a bullet-proof vest.22 Such searches are undoubtedly jeopardized as the result of a lack of funds and personnel, with the result that some searches could be delayed or not done at all. Searches for drugs, illegal firearms and pornography will become less effective, and contraband that would otherwise have been seized will instead remain in the community.

As a result of recent budget cuts, Presentence Investigation Reports, upon which judges rely heavily in the sentencing process, have become less timely and threaten to become less accurate. Chief Judge Amon reported that Probation officers are taking almost a month longer to complete these reports and are unable to do the field work necessary to verify the reports.23 Budget cuts also lessen the accuracy of sentencing and pre-sentencing reports because there are fewer personnel in pretrial service departments, meaning that staff members each have to research and write more reports on more detainees, devoting less time and attention to each report. The resulting inaccuracy may expose prisoners to excessive incarceration (which ironically increases the costs to taxpayers) or result in the premature release of prisoners into the community, with the attendant safety risks and human costs that would flow from that outcome. As Chief Judge Preska has noted, “Any decrease in the quality of presentence reports will decrease judges’ ability to sentence fairly.”24

The human costs of such cuts can be truly frightening. A U.S. Congressman has linked a recent rape and murder to inadequate supervision resulting from federal court budget cuts. In Syracuse, New York, in June of this year, a federal child pornography suspect raped a 10-year-old girl and murdered the girl’s mother while the suspect was under federal court-ordered supervision. Representative Dan Maffei said that “an innocent woman was stabbed to death [and] an innocent child was sexually assaulted” and that the ability of federal courts “to keep this from happening again is limited because their funding was cut.”25 Regardless of whether this 19 As we reported nearly two years ago, the caseload for SDNY probation officers was up to 61 supervisees per officer, far above the recommended level of 43. http://www.nycla.org/siteFiles/Publications/Publications1520_0.pdf

20 For example, the cost of pretrial detention for a month is $2216.79, while supervision by Pretrial Services costs $222.52 per month. Letter from Chief Judge Preska, supra note 19.

21 Letter to Barbara Moses, supra note 14.

22 Id.

23 Letter from Chief Judge Carol Bagley Amon to the Hon. Charles Schumer, dated August 23, 2103.

24 Letter from Chief Judge Preska, supra note 19.

25 U.S. probation officers in Syracuse fired, demoted over handling of David Renz, Syracuse.com (6-18-03)(casehttp://www.syracuse.com/news/index.ssf/2013/06/us_probation_officers_in_syrac.html).

8

particular tragedy can fairly be linked to federal budget cuts, there is no doubt that cuts increase the likelihood of such grim scenarios. As District Judge Gerald Rosen of the Eastern District of Michigan stated, “Putting it as clearly as I can, if funding in these areas is not restored to necessary levels, inevitably there will be an incident involving an offender who we could not sufficiently supervise.”26

Courthouse Security

Nationwide, the courts face a 30% cut for court security systems and equipment, leading to reduced hours for court security officers and jeopardizing the safety of litigants, witnesses, jurors, employees and judges.27 As Judge Rosen stated, such cuts “put[] at risk the safety of court personnel and visitors and limit[] the ability to apprehend fugitives.”28 In fact, actual and proposed budget cuts come at a time when threats against the judiciary have dramatically escalated in recent years. The U.S. Marshal Service’s Center for Judicial Security has reported that the number of judicial threat investigations increased from 592 cases in Fiscal Year 2003 to 1,258 cases by the end of Fiscal Year 2011.29 As Federal District Judges Charles Clevert and Joseph Rodriguez have noted: “Recent tragic shootings at or near courthouses in Delaware and South Carolina underscore that concerns about courthouse safety are not theoretical matters; cuts to funding for courthouse safety will only deepen these concerns.”30 In fact, just last year, the EDNY received 42 threats against judges and court officials, including a plot to assassinate District Judge Joseph F. Bianco.31

Moreover, the risk is particularly great in the Southern and Eastern Districts of New York, which have presided over more trials that pose a risk to court security than any other districts. In recent years, the New York federal courts have handled countless high-profile terrorism cases and, as in other periods, have handled matters involving organized crime, drug trafficking, racketeering and other violent crimes.

Cuts in Treatment Programs

The judiciary has requested an emergency appropriation seeking to restore $13 million of the cuts that have been made to drug testing and mental health federal treatment programs

26 The Hon. Gerald Rosen, Federal Courts Are Feeling the Pain of Budget Cuts, The Detroit News (http://www.detroitnews.com/article/20130712/OPINION01/307120009#ixzz2bIpeu1MS).

27 Judges Clevert and Rodriguez, Sequestration Threatens American Justice, U.S. News and World Report Opinion (Feb. 27, 2013) (http://www.usnews.com/opinion/articles/2013/02/27/sequestration-budget-cuts-threaten-constitutional-rights).

28 Detroit News article, supra note 27.

29 T. Fatsko, S. Berson, S. Swenson, National Center for State Courts, Courthouse Security Incidents Trending Upward: The Challenges Facing the Courts Today (2012) ( http://www.ncsc.org/sitecore/content/microsites/future-trends-2012/home/Better-Courts/1-1-Courthouse-Security-Incidents.aspx).

30 “Sequestration Threatens American Justice,” supra note 28. Judge Clevert is from the Eastern District of Wisconsin and Judge Rodriguez is from the District of New Jersey.

31 Letter from Chief Judge Amon, supra note 24.

9

designed to provide alternatives to incarceration. NYCLA has applauded such programs to treat drug offenders and other low-risk offenders, as these programs have helped to reduce both recidivism and government expenditures in the long run. Yet, nationally, the 2013 budget for such drug and mental health treatment programs has been cut more than 20%.32 Funding for drug testing and treatment and mental health and sex offender treatment has been cut severely, and treatment is being decreased or withdrawn from supervisees.

According to Judge Swain, substance-abuse programs in the SDNY have been cut by 43% and no funding is available for residential treatment. Location-monitoring services for high-risk offenders have been cut 24% and mental health treatment services by 7%.33 The SDNY has been forced to use non-contract substance-abuse programs that provide services under Medicaid, even though those programs do not meet the service standards of the contract programs. In some circumstances, Pretrial Services has been forced to use community-based programs such as Alcoholics Anonymous and Narcotics Anonymous, which provide inherently less effective supervision than professional contract-based programs.

Similarly, the funding for the SDNY’s Reentry Court Program, which had shown promising results in reducing recidivism by high-risk offenders, was reduced.

The programs that have been sacrificed are expensive, but worthwhile. NYCLA’s newspaper reported extensively on these innovative programs recently and cited early findings that the recidivism rate is 10% for participants in a supervised reentry program for drug offenders as compared to 15% for those not in the program.34 Also, EDNY Judge Dora Irizarry provided statistics that suggest that as much as $500,000 in savings per person may result from the use of federal drug court programs instead of incarceration.35 As the late Senator Frank Lautenberg noted, “Cuts to mental health and drug treatment programs could lead to more offenders relapsing into lives of crime.” 36

NYCLA urges the restoration of funding for, and opposes any further cuts to, these valuable treatment programs.

32 Statement of Hon. Julia S. Gibbons, Chair, Committee on the Budget of the Judicial Conference of the U.S. Before the Subcommittee on Financial Services and General Government of the Committee on Appropriations of the U.S. House of Representatives (Mar. 13, 2013) (http://www.uscourts.gov/uscourts/News/2013/Judge-Gibbons-testimony_3-13.pdf).



35 Similar figures were reported in Supervision Costs Significantly Less than Incarceration in Federal System, The Third Branch (July 18, 2013) (available at http://news.uscourts.gov/supervision-costs-significantly-less-incarceration-federal-system).

36 Lautenberg Highlights Damaging Impact of Sequestration on Federal Courts and Public Safety, Hunterdon County News (June 28, 2013) (http://www.thehcnews.com/breaking/lautenberg-highlights-damaging-impact-of-sequestration-on-federal-courts-public-safety/).

10

COURT INFRASTRUCTURE AND SERVICE TO THE PUBLIC37

The budget crisis has affected the infrastructure of the courts in ways that have thus far largely been invisible to the public. However, continued sequestration or other potential cuts will soon force changes that will affect the services provided by the courts. As Judge Swain told us, “We have largely managed to maintain prior levels of service in our interactions with litigants and other members of the public, but this mode of doing business is not sustainable and, if staff and resources are cut further, there will be a greater and even more visible impact on core constitutional functions of the court.”

Within the context of overall budget cuts, each district court has some flexibility as to how it allocates the mandated cuts within the courthouse. To prevent furloughs and layoffs and preserve service to the public, both the SDNY and EDNY have chosen to shift money to salaries, telephones, paper and ink, while foregoing long-term infrastructure demands, such as building repairs, replacement of outdated equipment or software upgrades. If (as appears likely) further cuts occur, the SDNY, EDNY and other courts will not be able to maintain even the reduced current staffing levels and will have to diminish services severely.

First, the staff of the SDNY’s clerk’s office has been reduced by 40 positions (or 16.8%) over the last three years, including cuts of 13 docketing staff positions. The EDNY clerk’s office faces a comparable gap, after cuts of approximately 10% over the last three years.38 The administrative support for the executive leadership in the SDNY has gone from three busy full-time positions to one full-time administrative assistant and a temporary position.39

Second, the courts have been forced to curtail expenditures on information technology. Deep cuts have been made for IT programs on which courts depend for daily case processing. In addition, the SDNY has been forced to defer or cancel needed improvements to information technology. In the long run, cuts in IT funding can prevent efficiencies, such as the adoption of electronic juror questionnaires that could replace the use of an outside contractor to prepare and distribute hard-copy questionnaires.40

Third, the courts have lost productive, experienced employees through early retirement and other attrition. The loss of skilled personnel will have an effect in later years, an effect compounded as other staff will leave if the budget crisis fails to abate. In addition, because of hiring freezes, the courts have been unable to hire younger employees to provide leadership for the future. The EDNY has only have two employees who have served fewer than three years and employs fewer than ten people under 30 years of age and none younger than 27. This will be a problem in the future when more employees retire with insufficient younger staff to replace

37 The SDNY has been forced to lay off nine employees, mostly in the clerk’s office. “Worsening Plight of Courts Prompted Plea to Congress,” New York Law Journal at 1 (Aug. 20, 2013).

38 The EDNY clerk’s office lost 5.5 positions in 2013. Letter from Chief Judge Amon, supra note 24.



11

them. Fifteen percent of the EDNY’s staff is eligible to retire with full benefits and 25% to retire with limited benefits. These figures will double in seven years.41

Fourth, the courts have no margin for error. Unforeseen costs – such as the EDNY’s recent outlays for anthrax-screening machines – necessitated by two recent anthrax scares and another receipt of hazardous material in the mail – would mean that the court might have to adopt additional measures that affect the public.

The result of the foregoing factors is that public access to the courts will be diminished in at least the following ways if the budget crisis continues.

The SDNY and EDNY may be forced to curtail their hours of operation and possibly even close for entire days at a time, while imposing unpaid furloughs upon courthouse staff. 42

In addition, both the SDNY and the EDNY will be forced to cut back on valuable bar association and law school education programs, many of which are held after hours and all of which are essential to promoting and enhancing the public’s understanding of the court system.

Court administrators have warned that they may run out of money for civil jury trials if across-the-board funding cuts continue into 2014.43 As District Judge William Young of the District of Massachusetts has remarked: “Next year, with additional sequester cuts, I predict (but I'm not positive) that we will run out of money for civil juries before the end of the fiscal year. July, August, I'm not sure when but we will run out.”44

With fewer available clerk’s office staff, less technology and a greater need to focus on criminal cases, civil and bankruptcy cases may suffer significant delays. In addition, sequestration may cause delays in the issuance of opinions and in the payment of civil jurors. Indeed, in state courts that have suffered years of budget constriction, delays in civil cases have become intolerable.45 As Judge Gibbons put it, “The staffing losses are resulting in the slower processing of civil and bankruptcy cases which will impact

41 Data from Douglas C. Palmer, Clerk of the EDNY.

42 The clerk of court in the Central District of California has already announced it will severely curtail services at its three courthouses on seven Fridays from April through the end of August 2013, accepting only mandatory and emergency filings. “Budget Cuts Start to Hurt Courts,” The BLT: The Blog of Legal Times (Mar. 29, 2013 (http://legaltimes.typepad.com/blt/2013/03/budget-cuts-start-to-hurt-courts.html).

43 Delays, Furloughs, Security Cuts: Sequester Hits Judiciary Hard, CNN Politics (July 23, 2013) (http://www.cnn.com/2013/07/23/politics/sequester-courts). 44 “How the Sequester Threatens the U.S. Legal System,” The Atlantic (Mar.2013) (http://www.theatlantic.com/national/archive/2013/03/how-the-sequester-threatens-the-us-legal-system/273878/). 45 “Budget Cuts Start to Hurt Courts,” supra note 42.

12

individuals, small businesses, and corporations seeking to resolve disputes in the federal courts.”46

Some of these delays are already becoming manifest. As Judge Swain reported to us, on more than half of the business days in a recent month, the SDNY’s staff was unable to docket and process incoming activity on the same business day.

Public access to the court's PACER information system may be limited.

Same-day docketing may be reduced as a result of the reductions in clerks’ office headcount and in the technology needed to efficiently process cases on a daily basis.

The night deposit box could be closed and night and weekend access to the court could be limited. Since legal issues do not take a break during off hours and weekends, reduced hours could mean that exigent matters, often with economic significance or importance to the personal liberty of a criminal defendant, would be delayed. 47

THE FEDERAL DEFENDERS

The Federal Defenders’ Office is vital to the functioning of the courts. Ninety percent of federal defendants qualify for free representation and the Defenders actually represent nearly 40% of all federal criminal defendants. As a recent New York Law Journal article noted, the SDNY’s Public Defender unit has suffered a catastrophic 20% cut in the resources it has available to provide indigent defense, resulting in long forced furloughs for staff attorneys.48 Each staff member has had to take 20 unpaid furlough days over the six-month period after sequestration hit in April 2013. This has resulted in hardship to individual Defenders and has also unduly increased the workload facing the Defenders during their reduced working hours. Without immediate relief, the Federal Defenders will begin laying off between 30% and 50% of its staff and closing branch offices.49 Even worse, sequestration and other cuts will result in a cut in the Federal Defenders Office budget of more than 14% over the final six months of the 2013 fiscal year, further threatening the constitutionally protected right to counsel.50

46 Judge Gibbons’s testimony of July 23, 2013 supra note 15. In addition, delays in criminal cases have ensued. Sentencing dates for nonincarcerated defendants that were once scheduled 90 days out are now being scheduled for 120 days out. “Worsening Plight of Courts Prompted Plea to Congress,” New York Law Journal at 1 (Aug. 20, 2013).

47 NYCLA has commented separately on the disadvantages that would occur if federal courthouses are closed early. http://www.nycla.org/siteFiles/Publications/Publications1623_0.pdf

48 The result of the furloughs will be a 20% cut in the compensation of the average defender. http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202593825526&US_Budget_Cuts_Force_Lengthy_Fur-loughs_for_Federal_Defenders&slreturn=20130706231954

49 http://www.constitutionproject.org/documents/coalition-letter-to-senate-judiciary-committee-in-support-of-restoring-funding-to-defenders-services-budget/. 50 Letter to Barbara Moses, supra note 14.

13

These cuts will diminish the quality of justice afforded to indigent federal defendants. Judges have already received numerous requests from Federal Defenders to be relieved in cases, which would necessarily delay those cases. In fact, the Federal Defenders Office in New York City recently asked the SDNY to postpone the trial of Sulaiman Abu Ghaith (Osama bin Laden’s son-in-law) because of staff cutbacks.51 Because of the cuts, the Defenders may be forced to cut back on expert witness fees, travel, investigation and even forms of legal research, such as premium databases on LEXIS and Westlaw. At a minimum, the Defenders will be forced to reduce their intake of cases and, because of furloughs and other personnel cuts, will not be able to handle cases as efficiently and quickly as they did before. As David F. Patton, the attorney-in-charge of the Federal Defenders of New York, has said, “You simply can’t sequester the Sixth Amendment.”52

Ironically, cuts in the Federal Defenders’ budget actually increase the cost to taxpayers. If the Federal Defenders cannot handle a case, the defendant is still constitutionally entitled to representation. As a result, the judge handling the case may have to assign private counsel under the Criminal Justice Act (CJA), an option that is 20% more expensive than Federal Defenders staffing.53 As U.S. Supreme Court Justice Anthony Kennedy has said, “If there are no public defenders available, private lawyers would have to be paid to do the job.”54 We note also that if sequestration and other budget cuts continue, attorneys serving on CJA panels could see further delays or reductions in payments. The current plan, absent an emergency supplemental appropriation, is to “suspend” CJA payments for the last three weeks of the current fiscal year, i.e., the last three weeks of September. As a result, attorneys may be less willing to serve on CJA panels or to represent indigent defendants if the path to payment becomes elongated or uncertain.

BANKRUPTCY COURT

The SDNY Bankruptcy Court is the country’s largest. Half of the largest public company filings in history have taken place in the SDNY Bankruptcy Court. However, that court has experienced a 30% reduction in staffing over the last two years and has been forced to close its Record Department.55 The funding for the court has been reduced by 37% over the last two years, to $5.06 million for Fiscal Year 2013 from $8.06 million in Fiscal Year 2011. The 2013 budget includes the 4% cut the court saw as a result of the across-the-board budget reductions that took effect in March, through sequestration.56

51 Judge Gibbons’s testimony, supra note 15.


53 Id.

54 “Justices Raise Concerns About Budget Cuts to Judiciary,” Reuters (Mar. 14, 2013) (http://www.reuters.com/article/2013/03/14/us-usa-fiscal-courts-idUSBRE92D0X520130314).


56 http://m.nasdaq.com/article/busy-new-york-bankruptcy-court-faces-budget-crunch-20130523-00953

14

The EDNY Bankruptcy Court has likewise been forced to eliminate 11 positions in its clerk’s office and will likely need to lay off and furlough additional staff in the next fiscal year.57

Like the EDNY and the SDNY, the SDNY and EDNY Bankruptcy Courts have been forced to resort to extreme cost-cutting measures. According to SDNY Bankruptcy Court Clerk Vito Jenna, the court has achieved $48,000 in savings on paper and toner alone, enough to nearly pay for an additional staffer. The EDNY Bankruptcy Court has postponed replacing equipment and upgrading technology infrastructure.58

Notably, although the SDNY Bankruptcy Court is one in which emergency night-time filings and proceedings occurred in such high-profile cases as Lehman, American Airlines, Chrysler, General Motors and Delta Airlines, the court has been forced to curtail its hours of operation, ending all hearings at 5:00 p.m.

Moreover, because of the tremendous docket of the SDNY Bankruptcy Court, the software used by other bankruptcy courts simply is inadequate to handle that docket. Proper software might reduce cost in the long term, but the Bankruptcy Court lacks any funds with which to purchase such software.

Overall, the SDNY Bankruptcy Court, which has provided services of immense significance to the economy of the entire nation, has had to curtail its operations due to sequestration. As Judge Swain remarked, the SDNY Bankruptcy Court “has found its ability to provide the needed level of responsiveness to fast-moving business controversies further compromised by sequestration.”59 As Judges Calvert and Rodriguez warned: “Budget related delays would prevent bankruptcy courts from functioning normally in providing relief to struggling debtors and ailing businesses seeking reorganization. These individuals, businesses, and employees would be harmed and economic recovery will be slowed.”60

THE NEW YORK COURTS ARE UNIQUE

For a number of reasons, the New York federal courts are unique and, thus, cuts to the budget of the New York courts have particularly detrimental effects.

First, as noted above, New York faces unique security issues. The New York courts handle more terrorism and organized crime cases than any others. The need for courthouse security and supervision of potentially dangerous defendants and offenders is particularly acute here.

Second, the docket in New York is huge, rivaled only by that of the Los Angeles federal courts. The pressure imposed by such a docket cannot be overstated. Budget cuts have stripped away needed improvements to information technology and have forced the retirement of skilled senior personnel. Both the technology and personnel are critical to handling the docket here but both are threatened by the budget cuts.

57 Letter from Chief Judge Amon, supra note 24.

58 Id.


60 “Sequestration Threatens American Justice,” supra note 28.

15

Third, the New York federal courts have already made significant cuts in “bureaucracy” but have not been rewarded for it. According to the EDNY, it has fewer administrative and human resources staff when adjusted for the size of its district than two-thirds of the other federal courts. Yet, the judiciary’s Administrative Office has an incentive structure that does not reward the EDNY for already having made cuts.

* * * *

For all of these reasons, NYCLA opposes the arbitrary and destructive sequestration budget cuts that have been imposed in 2013 and that threaten even greater damage in 2014 and beyond.

In an effort to forestall, or at least ameliorate, the crisis, we advocate the following action items.

RECOMMENDATIONS

Appropriations. To offset sequestration and the effects of past budget cuts, in Fiscal Year 2014, Congress should enact the judiciary’s proposed request for a $496 million increase in funding. This increase is needed for the same reasons that supplemental appropriations were made for such essential services as air traffic control. The courts’ success in managing their budget has, ironically, created the unwarranted perception that the courts do not need additional funds.

We are pleased that both the House and Senate Appropriations Committees recommended a Fiscal Year 2014 appropriation for the federal judiciary that restores the funding cuts imposed by sequestration. The Senate Appropriations Committee recently approved S. 1371, which would provide the judiciary with a $496 million increase in funding for Fiscal Year 2014. This is roughly 7% more than the Fiscal Year 2013 post-sequestration funding that the judiciary received, and it is sufficient to fund fully the judiciary’s Fiscal Year 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 Fiscal Year 2014, representing a roughly 5% increase over the Fiscal Year 2013 post-sequestration funding received by the judiciary.61

We urge the full House and Senate to adopt these measures and to otherwise eschew crippling budget cuts that could result in the dangerous consequences outlined above.

Public Education. NYCLA’s membership and that of other bar associations should educate their elected representatives and the public over the need for sufficient funding of the federal court system. And NYCLA should and will continue its advocacy on these issues, including the sponsorship of forums and the authorship of letters to the editor and other opinion pieces. To this end, NYCLA intends to conduct public hearings on the crisis in the federal judicial budget.

Further Investigation. The Task Force should investigate and explore the constitutional issues and dynamics of this crisis and should make such further recommendations as it deems appropriate.

61 See Letter from Chief Judge Preska and Judge Rosen, supra note 7.

16

CONCLUSION

If the destructive budget cuts of the last several years are not reversed, the damage to our constitutional system of government may be deep seated and irreversible. To gauge the potential harm, we need look no further than the courts of the State of California, which have suffered budget cuts earlier and steeper than the cuts the federal courts have confronted.62 As the San Diego Bar Association has reported, it can take seven months to contest a traffic ticket, ten weeks to schedule a first appointment on a difficult custody issue, at least eight weeks for the issuance of misdemeanor warrants for failure to comply with a court order, and six to eight months for a hearing on a routine motion in a civil case.63

If we are to avoid the catastrophe that now exists in California – or even worse scenarios – the action steps that NYCLA recommends must be taken and taken now. Less than one out of every 500 federal budget dollars is expended on our courts.64 In order to preserve and protect our precious judicial system and give meaning to the terms “due process of law” and “equal protection,” it is incumbent upon us to take all steps necessary to hold the line against erosion of even this modest amount and to restore the courts’ budget to a level at which they can meet their constitutional mandates.

62 California’s budget cuts date back five years. General fund support of the court system has been reduced by nearly 65%. In Focus: Judicial Branch Budget Crisis: Financing the California Courts (Admin. Office of the Courts 2013) ( http://www.courts.ca.gov/partners/courtsbudget.htm#ad-image-0). 63 https://www.sdcba.org/temp/ts_599C86E3-ACCB-3CB9-416123903C923909599C8712-A98D-1B7D-B6FCC9B533ACBEAA/CFAC%20Annual%20Report-6-7-2013%5BRS%5D.pdf 64 “Federal Courts Are Feeling the Pain of Budget Cuts,” supra note 27.

17

NYCLA Task Force on Judicial Budget Cuts

Hon. Stephen G. Crane – Co-Chair* Michael Miller – Co-Chair*

Stewart D. Aaron* Morrell I. Berkowitz Hon. Herman Cahn Gerald I. Carp Faith Louise Carter Vincent Ted Chang* Brian P. Corrigan Briana Denney Sylvia E. Di Pietro Thomas G. Draper Jr. Joseph M. Drayton* Lucas A. Ferrara Arthur Norman Field Harvey Fishbein Hon. Helen E. Freedman W. Brad Jarman Samuel Edward Kramer Lawrence A. Mandelker Harold A. Mayerson Sayward Mazur Michael J. McNamara* Eugene B. Nathanson Gary L. Rubin Keith Schmidt Robert G. Silversmith Rachel A. Siskind Hon. George Bundy Smith Thomas M. Smith Hon. Michael R. Sonberg Glenn Spiegel Prof. Philip Weinberg Alison Wilkey Marilyn J. Flood, NYCLA Counsel * Members of Federal Courts Subcommittee

Documents

Report - New York County Lawyers' Association