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

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. 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.

 

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 EDNY (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.

 

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. 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. 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.

 

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. 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.

 

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.Sequestration has hit particularly hard at the “discretionary” 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.

 

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.”

 

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.”

 

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.”

 

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.” 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.

 

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.

 

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. 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.”

 

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

 

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%.” 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. 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. 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.”

 

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.” Regardless of whether this 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.”

 

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. As Judge Rosen stated, such cuts “put[] at risk the safety of court personnel and visitors and limit[] the ability to apprehend fugitives.” 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. 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.” 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.

 

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 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%. 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%. 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. 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. 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.”

 

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

 

COURT INFRASTRUCTURE AND SERVICE TO THE PUBLIC

 

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. The administrative support for the executive leadership in the SDNY has gone from three busy fulltime positions to one full-time administrative assistant and a temporary position.

 

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.

 

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 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.

 

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.

 

• 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. 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.”

 

• 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. As Judge Gibbons put it, “The staffing losses are resulting in the slower processing of civil and bankruptcy cases which will impact individuals, small businesses, and corporations seeking to resolve disputes in the federal courts.”

 

• 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.

 

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. 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. 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.

 

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. 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.”

 

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. 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.” 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. 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.

 

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.

 

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.

 

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.” 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.”

 

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.

 

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 reestimated 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.

 

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.

 

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. 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.

 

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. 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.

 

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

1. 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

 

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
500 PEARL STREET

NEW YORK, NEW YORK 10007-1312

 

LORETTA A. PRESKA CHIEF JUDGE

212-805-0240 FAX 805-7941

 

August 23, 2013

 

Senator Charles Schumer

780 Third Avenue Suite 2301

New York, NY 10017

 

Dear Senator Schumer.

 

Several years of flat funding followed by sequester have had a devastating effect on federal courts nationwide but particularly on ours, here in the Southern District of New York. Further cuts, such as those we would suffer under a Continuing Resolution, would seriously interfere with out Court’s ability to carry out its Constitutional and statutory duties to resolve all the cases that come before us – a number we cannot control.

 

Attached is a letter detailing the situation here in the Southern District and a letter, signed by eighty-seven chief district judges, detailing the situation nationwide, Both urge Congress to fund the judiciary, through anomaly and final budget, at the current Senate mark (which merely restores the Judiciary to its pre-sequester level).

 

I will be contacting your office shortly to request an opportunity to meet with you and your stall to discuss these issues.

 

Thank you for your consideration.

 

Sincerely,

Loretta A. Preska

Chief Judge, Southern District of New York

 

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
500 PEARL STREET

NEW YORK, NEW YORK 10007-1312

 

LORETTA A. PRESKA CHIEF JUDGE

212-805-0240 FAX 805-7941

 

August 23, 2013

 

Senator Charles Schumer

780 Third Avenue Suite 2301

New York, NY 10017

 

Dear Senator Schumer.

 

I write to you as the Chief Judge of the Southern District of New York to express my grave concern over the impact that the Sat funding of the last few years, followed by sequestration, is having on my Court’s ability to carry out its constitutional and statutory responsibilities. This letter is an addendum to the letter dated August 13,2013 (a copy of which is attached), in which I and the Chief Judges of eighty-six other federal district courts expressed the same concerns about the Judiciary on a national level. Below, I outline specific areas of concern caused by the funding situation of the last few years that affect the litigants, lawyers, staff, judges, and general public in the Southern District of New York.

 

As you are no doubt aware, the Southern District of New York is among the busiest trial courts in the country. With jurisdiction over the financial capital of the world, a dense urban population, several suburban and rural areas, and a major gateway for both immigration and goods, the Southern District handles a heavy caseload that includes some of the nation’s most complicated civil and criminal cases. Because of this, and the talent and dedication of its lawyers, litigants, staff, and judges, the Southern District is among the most influential and respected federal trial courts in the nation. Flat funding (which, after “must pays” is really decreased funding) followed by sequestration is jeopardizing our ability to carry out our duties in the manner and timeframe the public expects and the Constitution demands.

 

CRIMINAL DEFENSE

 

The Federal Defenders of New York is an independent, non-profit organization that fulfills the promise of Gideon v. Wainwright and the Sixth Amendment by providing vigorous and high quality legal representation free of charge to indigent persons accused of federal felonies. With fewer than fifteen attorneys serving the Southern District, the Federal Defenders of New York represents nearly 1,000 defendants before our Court in an average year. From large international narcotics conspiracies to terrorism cases involving senior al-Qaeda leadership, to international computer hacking conspiracies, the office handles many of the most complex criminal cases in the country. It has also handled numerous death penalty cases.

 

As a result of sequestration, the Federal Defenders’ already modest budget has been reduced by nine percent during the final six months of FY 2013. Because approximately eighty August 23, 2013 percent of the office’s budget goes to salaries, there is little to cut beyond staff, and all staff members have been furloughed for fifteen days in the six-month period beginning April 2013. In the face of these staffing constraints, Federal Defenders attorneys were forced to request that the trial of alleged terrorist Sulaiman Abu Ghaith, Osama bin Laden’s son-in-law, be postponed. Upon hearing the request, the trial judge called such circumstances “extremely troublesome.” Federal Defenders attorneys have also asked to be relieved entirely from representation in several cases pending in the Southern District, also causing delays as new counsel get up to speed.

 

Delays in criminal proceedings are a disservice to the public, the government, and defendants. Public confidence in the justice system erodes when defendants are not brought swiftly to justice. Delay dims the memories of witnesses and makes some more difficult to find, thus complicating the government’s ability to prove its case. Delays are also unfair to defendants, who deserve to have their cases adjudicated as quickly as possible to avoid, among other things, reputational damage from long-pending charges and prolonged pretrial detention at the expense of their freedom (and taxpayer money).

 

To preserve funds, the Federal Defenders recently suspended its historical practice of taking any criminal case in which the office does not have a conflict, shifting representation to Criminal Justice Act (“CJA”) counsel Federal Defenders may also have to close its White Plains office, so all representations of indigent defendants in cases pending in that courthouse would also be shifted to CJA counsel. Further undermining the Federal Defenders’ mission, the office does not have sufficient funds to hire expert witnesses, who are necessary to many clients’ defenses, or pay for attorney travel to visit clients or prepare witnesses.

 

Counterintuitively, cutbacks to the Federal Defenders do not save any taxpayer funds. Indeed, these reductions actually result in greater spending. Because the Sixth Amendment requires us to provide counsel to any indigent person charged with a felony, reducing the Federal Defenders’ staff (who work on salary) results in appointments being shifted to CJA panel attorneys (who charge hourly), thus increasing costs rather than reducing them. While recent steps taken by the Executive Committee of the Judicial Conference have avoided (for the moment) some truly catastrophic layoffs and office closures by the Federal Defenders, that was only temporary and merely deferred more CJA panel payments into subsequent fiscal years. This is an untenable approach, both because it increases costs overall and because adding to appropriations requirements in coming fiscal years compounds the shortfall of funding in the overall account. On a per-case basis, CJA attorneys generally cost taxpayers twenty percent more than their Federal Defenders counterparts. As David E. Patton, the attorney-in-charge of the Federal Defenders of New York, has said: “You simply can’t sequester the Sixth Amendment.”

 

PUBLIC SAFETY

 

Probation And Pretrial

 

The public and the Court in the Southern District depend on the Probation Department and Pretrial Services Office to provide vital services that facilitate the sound administration of justice and protect public safety. Under the Federal Rules of Criminal Procedure, the Probation Department is responsible for drafting a detailed report on every convicted defendant’s personal history, criminal background, and the circumstances surrounding his or her offense(s). Additionally, these reports, called presentence reports, perform technical and often complicated calculations to arrive at a recommendation for the defendants sentence under the Federal Sentencing Guidelines. In our district, reports are often exceedingly complex and time-consuming as our criminal cases often involve large conspiracies involving crimes ranging from insider trading to art theft to money laundering to computer hacking to terrorism. Judges rely heavily on presentence reports in preparing for sentencing, and any decrease in the quality of presentence reports will decrease judges’ ability to sentence fairly.

 

The Pretrial Services Act of 1982 authorized the establishment of Pretrial Services offices in. each judicial district (other than the District of Columbia), The primary functions of Pretrial Services are to collect, verify, and report to the judge information relating to any risk of danger to the community or risk of nonappearance the defendant may pose prior to the initial presentment of a defendant charged with an offense. Also, if release is recommended, Pretrial Services recommends appropriate conditions of release. Should a defendant be granted pretrial release with supervision, Pretrial Services will supervise that defendant in the community, monitoring and enforcing the conditions of release. It is the mission of Pretrial Services to safeguard the community, help ensure that defendants appear for all Court matters, and reduce the rate of unnecessary detention. Judges rely heavily on Pretrial Services Reports to provide timely information, sometimes within an hour or two of commencing the pretrial investigation, that will assist in a bail determination. Any decrease in the quality of the Pretrial Services Report or the monitoring of defendants on bail will adversely affect the safety of the community.

 

Starting in 2009, funding issues caused the Probation Department to downsize. Since 2009, the number of presentence reports requited, the number of offenders under supervision, and the offenders’ risk of reoffending have all increased Sequestration has exacerbated the situation. In January 2009, the Probation Department had 155 employees, and today they have 327 employees. Among the twenty-eight employees who have left the department are twenty- two probation officers. Pretrial Services has maintained thirty-eight officers on staff since 2009, but they have reduced support staff Currently, although Pretrial Services’ workload authorizes up to fifty-eight staff members, due to sequestration they are not able to hire and currently have nineteen vacant positions.

 

The Probation Department has another five officers who will be retiring in FY 2014, and, if sequestration continues, it is not likely that they will be able to replace those officers. Also, because of an increase in presentence reports required and the decrease in the number of officers, our Court recently extended sentencing dates of non-incarcerated defendants from 90 days to 120 days after conviction, and each, officer is responsible for more than the recommended maximum number of presentence reports per month, reports which, as noted, are more complicated than in most other districts.

 

While Pretrial Services does not have any mandatory retirements occurring in 2014, they will have five officers and three support staff eligible to retire. It is not likely that Pretrial Services will be able to replace anyone who retires should sequestration continue.

 

Public safety has also been compromised due to recent funding reductions. The Probation Department and Pretrial Services Office are tasked with ensuring public safety by monitoring criminal offenders and defendants through, among other things, in-person meetings, drug testing, drug, mental health and sex offender treatment, and GPS-tracking. Because the Southern District is home to a large and diverse population spread across an urban, suburban, and rural landscape, monitoring defendants can require substantial officer time and considerable resources. Reductions in clerical staff mean that officers must spend more time on administrative matters and less time monitoring defendants, and reductions in the number of officers mean each officer is supervising more defendants—both of which adversely affect the quality of supervision thus threatening public safety.

 

Cuts in law enforcement funds mean less treatment for offenders deemed at risk. As a result of sequestration, Probation has been forced to reduce most of the treatment expenses in their office, including a forty-three percent cut in substance abuse treatment services, a twenty- four percent cut in location monitoring services, and a seven percent cut in mental health treatment services. Location monitoring is a tool used to monitor our highest risk defendants in the community (e.g., sex offenders, violent defendants, defendants with a history of noncompliance, high risk foreign nationals, gang and organized crime members). Probation has reduced the number of urine specimens that an offender is required to submit, and Pretrial Services has eliminated initial drug screening for new arrests. Additionally, Probation is no longer paying for any residential treatment due to the high cost of this service and is forced to rely upon third party payment for such services.

 

Pretrial Services has also been forced to reduce treatment costs by limiting or foregoing contract services, moving defendants to non-contract programs that accept Medicaid or referring defendants to community-based programs that preclude them from con fuming attendance or monitoring progress. Service decreases include a fifteen percent reduction in drug testing, a thirty-eight percent reduction in drug treatment, a fifteen percent reduction in mental health treatment, and a seventeen percent decrease in location monitoring services. These forced reductions in services due to sequestration increase both risk to the community and to the individuals who benefit from treatment and intensive monitoring.

 

Law enforcement funds also facilitate the safe re-integration of offenders into the community by allowing probation officers to perform premises searches for items such as illegal weapons, illegal drugs, and child pornography—one or more of which is almost invariably found in an unannounced search based on the officer’s reasonable suspicion that such contraband is present. Fewer searches mean more illegal weapons, drugs, and other contraband left in our community. The lack of officers has also forced Probation, on several occasions, to delay the execution of a search. It is imperative that these searches be executed as soon as possible after reasonable suspicion arises because in many cases the contraband in question is of a sensitive nature. Delaying a search may also place possible seizure of the contraband in jeopardy while also allowing it to remain in the community longer, thus increasing the likelihood of its illicit and harmful use.

 

Sequestration has also forced Probation to cancel re-entry court. This program, which is designed to assist high risk offenders in their re-entry into society, showed promising results in reducing recidivism, but budget cuts have made it impossible to devote resources to the program.

 

With cuts to law enforcement funding and an inability to hire, Pretrial Services does not have the resources to implement any new programs. One such program that was in development but put on hold is a release initiative that utilizes enhanced supervision and specialized programs to secure the release of some defendants meeting certain criteria. The program would hold defendants accountable for successful completion and provide incentives for the same. Programs such as these increase release rates, reduce recidivism and save detention expenditures while also safeguarding the community. According to the Administrative Office of the United States Courts, to keep a defendant in pretrial detention for a month costs $2,216.79, while supervision by Pretrial Services costs an average of $223.52 per month. Not having sufficient resources for these types of programs and treatment services, which help facilitate successful supervision and continued release, results in higher detention rates and overall increased government expenditure.

 

Court Security

 

Security at courthouses has suffered as well Sequestration resulted in a thirty percent cut in funding for court security systems and equipment, and court security officers are being required to work reduced hours, creating security vulnerabilities throughout the federal court system. Our two courthouses at Foley Square are particularly vulnerable. They house the largest number of federal judicial officers of any single federal complex in the country. Those judicial officers preside over numerous terrorism, narco-terrorism, international arms trafficking, and gang cases every year. Reducing staff at these buildings puts our judges and staff, our lawyers and litigants, and the public, whether jurors, visitors, family, or the press, in grave danger.

 

BANKRUPTCY COURT

 

The U.S. Bankruptcy Court for the Southern District of New York is among the most active in the world, drawing all types of bankruptcy filings involving debtors and creditors from many jurisdictions across the country and around the world. Our Bankruptcy Court has developed a reputation as the “go-to” Court for the largest and most complex filings because of its deep legal expertise and its capacity to administer efficiently the most intricate of cases. It continually oversees many of the most significant bankruptcies of our times, most of which have a considerable bearing on not only national but also international commerce and finance. Well-recognized mega cases like Lehman Brothers, Chrysler, General Motors Corporation, Enron, WorldCom, American Airlines, Delta Air Lines, Hostess Brands, Eastman Kodak, MF Global, Dynergy, and Bernard L. Madoff Investment Securities LLC were all filed in the Southern District’s Bankruptcy Court. In fact, half of the forty largest public-company filings ever made under Chapter 11, the part of the bankruptcy code used for corporate restructurings and the chapter of choice for large corporate filings, were brought in the Southern District.

 

Chapter 11 cases regularly involve restructuring billions of dollars of liabilities held by many stakeholders including vendors, banks, pensioners, employees, the government, and bond holders. Moreover, these cases requite immediate and sustained attention because once a company is in Chapter 11, most company decisions must be approved by the Court, Chapter 11 cases also often involve lengthy proceedings held on an emergency basis, As one commentator put it, these cases require around-the-clock court attention as stakeholders try to salvage assets that can best be described as melting ice cubes, In sum, the livelihoods of employees and retirees, as well as property rights of creditors and other stakeholders of some of our nation’s most important enterprises, rely on the Bankruptcy Court’s ability to keep up with massive and challenging caseloads while administering justice in a timely and correct fashion.

 

In the past two fiscal years, funding constraints have caused a crisis of staffing in our Bankruptcy Court. Administrative staff has been reduced by thirty percent. Additionally, the Bankruptcy Court has lost one judgeship. Against the complex and mounting caseload described above, these reductions in staff and services have been cut to unprecedented and unsustainable levels. Most importanty, the Court’s ability to handle its workload in an efficient and just manner has been compromised. For example, the Court must now close its doors at 5:00 p.m. to avoid overtime even though proceedings that go well into the night are the norm in many cases because time is of the essence when billions of dollars in corporate assets and countless jobs are on the line. Additionally, the Bankruptcy Court has closed its records department, and the speed with which it can docket orders has been slowed, thus interfering with timely distribution of information to the public and the stakeholders and damaging transparency. The cases described above involve thousands of stakeholders making many, many filings, each of which requires Court attention, When the Court cannot provide relief as soon as possible, jobs and value for creditors and taxpayers are compromised.

 

OFFICE OF THE CLERK OF COURT

 

Our Office of the Clerk of Court is responsible for, among other things, case initiations, docketing, and records management. This office is vital to the Court’s interaction with litigants, the media, and the general public. Over the last three years, the Clerk’s Office staff has been reduced by forty positions, For example, the docketing staff has been reduced by thirteen positions, while the Records Department has been reduced by eight positions.

 

These reductions have impeded our ability to do our work and to provide the public and litigants with prompt access to public records and case dispositions in the timeframe the public expects. For example, in recent months, docketing staff has been unable to keep up with demand and has failed about half the time to process all Court orders and incoming activity on the same business day as intake, thus delaying publication of court opinions and orders to litigants, the media, and the public. Similarly, the processing and docketing of paper records has been seriously delayed by the staffing reductions. Pro se litigants (who represent themselves and generally file on paper) have also seen significant delays in the time it takes for their submissions to be processed and distributed within the courthouse. We have had to eliminate our relief deputy pool, so now when a courtroom deputy is out, a law clerk has to be shifted from legal research and writing to courtroom deputy tasks—again slowing the process of preparing opinions. Outside of the Clerk’s Office but similarly, funding for additional law clerk assistance has been drastically reduced, Thus judges with particularly difficult matters, such as death penalty cases, certain terrorism cases or a large group of complicated civil cases, can no longer get extra help to handle those demanding cases. Again, that slows the preparation of opinions and the resolution of those cases.

 

Each of these delays undermines our effort to provide the public and our litigants with information and decisions in a timely manner. The transparency of our process and our ability to provide relief as quickly as possible, both core missions of the Court, are accordingly compromised. Because the Clerk’s Office estimated a $1.5 million budget shortfall in FY 2014 if funding remains at current levels, additional layoffs were implemented this month, further decreasing the Court’s ability to receive filings from litigants and communicate rulings and orders to the public we serve.

 

In order to retain the staff we have, we shifted funds from, for example, information technology and maintenance. While we might slide by this year without a catastrophic incident, aging IT equipment is a recipe for disaster, especially as we continue to eliminate costly paper communications. And, as we all know, maintenance and repairs, once foregone, are difficult and costly to catch up with.

 

Lack of IT funding also prevents us from becoming more efficient. For example, most courts can utilize an electronic system called E-Juror developed by the Administrative Office. It allows jurors to fill our jury questionnaires at home and send them electronically to the Court. Because of the volume of work already on our system, an additional server is required before our Court can utilize E-Juror. Lack of funding, however, prevents purchase of an additional server. Thus, the Court is forced to expend funds by hiring a contractor to produce hard copy questionnaires, to pay postage for mailing the questionnaires to the jurors and back to the Court, and to expend valuable manpower in processing and copying the responses for counsel—all at a time when we have fewer monetary and human resources to expend. Ironically, the lack of funding is preventing the Court from saving money and manpower.

 

CONCLUSION

 

I write with the understanding that the economic climate across the nation and here in New York is difficult, and I appreciate your consideration. In response to reductions resulting from sequestration, we have cut as much as possible while striving to uphold our core mission, and any further cuts would directly affect our ability to carry out our constitutional and statutory duties. We look to the Congress to recognize the uncontrollable and unpredictable nature of our workload and to provide the resources necessary for the Judiciary to perform its essential functions.

 

I would be delighted to meet with you and your staff at your convenience to discuss these matters.

 

Thank you for your consideration.

 

Sincerely,

Loretta A. Preska

Chief Judge, Southern District of New York

 

cc: Mr. Edward Friedland,

District Executive, Southern District of New York

 

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

225 CADMAN PLAZA EAST

BROOKLYN, NY 11201

 

CHAMBERS OF

HONORABLE CAROL BAGLEY AMON

CHIEF JUDGE

 

August 23, 2013

 

The Honorable Charles Schumer

United States Senate

322 Hart Senate Office Building

Washington, DC 20510

 

Dear Senator Schumer:

 

As Chief Judge of the United States District Court for the Eastern District of New York, I am writing to express my concern about the grave financial crisis confronting our courts as a result of sequestration and to alert you more specifically to its impact on the Eastern District. On August 13, 2013, eighty-seven Chief District Judges wrote to Senate President Joseph R. Biden Jr., House Speaker John Boehner, as well as to the Senate and House leadership and appropriate committee and subcommittee chairs and ranking members, This letter, which I have attached, discusses in detail how budget cuts have adversely affected federal district courts throughout the nation, I will turn to their impact on our court.

 

As you know, the Eastern District of New York is one of the largest federal Districts in the nation, serving a population of over 8 million people. In 2012, 6500 civil cases and 736 criminal cases were filed in our court. This year alone, we will naturalize over 77,400 new citizens.

 

The budget cuts resulting from sequestration have adversely affected every aspect of our court’s operation and each of our court units: the Clerk’s Office, the Probation Department, and our Pretrial Services Agency. The bankruptcy court in our District has similarly suffered losses in funds and staff. The Federal Defenders, who are funded through the judiciary’s budget, have been hit particularly hard.

 

In 2013, our Clerk’s Office, the administrative unit for all court operations, lost 5.5 positions which could not be filled because of budget reductions. To maintain a staff barely sufficient to continue operations, the Clerk’s Office transferred $845,000 to salaries from expense and IT accounts, leaving the Court with no ability to maintain or purchase equipment. If we are confronted with the same level of funding as in fiscal year 2013, we will lose an additional twelve to fifteen employees. We simply cannot function with so few staff members.

 

Our Probation Office, tasked with ensuring public safety by monitoring criminal defendants, has reported a diminished ability to closely supervise offenders. Fewer officers are available to conduct home searches for contraband, monitor sex offenders’ computer use, and conduct 24-hour location monitoring of defendants. Recent statistics indicate that probation officers are taking almost a month longer to complete Presentence Investigation Reports (PSRs) and are unable to do the field work necessary to verify PSR material. Fewer officers are available to appear at sentencing hearings and assist judges with sentencing. The 20% funding cuts for drug, mental health, and other services for offenders has resulted in the significant reduction of necessary individual treatment plans for defendants.

 

Our Pretrial Services office is similarly underfunded. Pretrial Services has had to switch to less rigorous methods of monitoring defendants placed on house arrest; for example, many defendants once tracked with active GPS technology are now monitored by passive GPS technology or radio frequency technology. Defendant drug testing has also been scaled back. While previous urine drug testing panels tested for up to eleven substances, the current testing panel only tests for five. Due to lack of funding, Pretrial Services staff has been reduced and essential training programs, including certification training, have been postponed. When Pretrial Services and Probation officers cannot effectively do their jobs, the safety of the community is at risk.

 

The Bankruptcy Court for the Eastern District of New York, like all our district court units, has had to postpone replacing equipment and upgrading technology infrastructure. Budget cuts have forced the Bankruptcy Court to eliminate eleven positions in its clerk’s office and it will likely need to lay off and furlough more staff next fiscal year. If the Bankruptcy Court is required to make further reductions, it will not be able to provide essential services.

 

One of the most troubling consequences of the budget cuts has been its effect on Federal Defender Services. The Federal Defenders of New York already operates on a modest budget. As a result of further reductions in funding, the Federal Defenders has sought to be relieved from representation of some defendants, despite its historical practice of accepting all criminal cases for which it does not have a conflict. The office does not have sufficient funds for its attorneys to retain expert witnesses or to travel to visit clients, and furloughed Federal Defenders have been forced to seek adjournments of proceedings, such as sentencings, plea allocutions, and suppression hearings. As the Executive Director of the Federal Defenders told me, “We cannot partially represent a client, We cannot cut back on necessary investigations, legal research, motions practice or the myriad other activities that are necessary to carry out our ethical and constitutional obligations.” The Federal Defenders were recently accorded some relief by the decision to reduce the hourly rate paid to attorneys of the Criminal Justice Act (CJA) Panel and to transfer these savings to Defender Services. Of course, this is not a solution to the funding problem, since CJA compensation is already too low. Reduction of the hourly rate will make it difficult to obtain qualified counsel for the panel.

 

There are additional risks to public safety created by sequestration. The planned reduction of court security officers and elimination of security systems and equipment will create a substantial risk to the safety and security of our judges, employees, jurors, and litigants. This past year alone, there were forty-two threats made against judges and court officials in the Eastern District of New York, including a plot to assassinate Joseph F. Bianco, a district judge in Central Islip, New York. The Eastern District of New York faces security and terrorism concerns that are unique among federal district courts. If the courthouses in our District are not adequately staffed with security personnel, they will be significantly more vulnerable to security threats.

 

I commend to your attention the attached letter, which closes by urging Congressional support for proposals that would increase funding for the federal judiciary. I very much hope you will consider the needs of this District in making budget decisions this year. I appreciate your consideration and support.

 

Very truly yours,

 

Chief United States District Judge

Eastern District of New York

 

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
500 PEARL STREET
NEW YORK, NEW YORK 10007-1312

 

LORETTA A. PRESKA CHIEF JUDGE

212-805-0240 FAX 805-7941

 

August 23, 2013

 

Honorable Joseph R. Biden, Jr.

President

United States Senate

Washington, DC 20510

 

Dear Mr. President:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Thank you for your consideration.

 

Sincerely,

 

Gerald E. Rosen Chief Judge, Eastern District of Michigan

Loretta A. Preska Chief Judge, Southern District of New York

 

/s/ Sharon L. Blackburn Chief Judge, Northern District of Alabama	is/ Richard W. Roberts Chief Judge, District of Columbia
/s/ Ralph R. Beistline Chief Judge, District of Alaska	Donald C. Pogue Chief Judge, Court of International Trade
Roslyn O. Silver Chief Judge, District of Arizona	/s/ Gregory M. Sleet Chief Judge, District of Delaware
/s/ Brian S. Miller. Chief Judge, Eastern District of Arkansas	Anne C. Conway Chief Judge, Middle District of Florida
/s/ P.K Holmes III Chief Judge, Western District of Arkansas	/s/ M. Casey Rodgers Chief Judge, Northern District of Florida
Claudia Wilken Chief Judge, Northern District of California	/s/ C. Ashley Royal Chief Judge, Middle District of Georgia
/s/ Morrison England, Jr. Chief Judge, Eastern District of California	/s/ Julie E. Carnes Chief Judge, Northern District of Georgia
/s/ Barry Ted Moskowitz Chief Judge, Southern District of California	/s/ Lisa Godbey Wood Chief Judge, Southern District of Georgia
/s/ George H. King Chief Judge, Central District of California	/s/ Frances Tydingco-Gatewood Chief Judge, District of Guam
/s / Alvin W. Thompson Chief Judge, District of Connecticut	Susan Oki Molloway Chief Judge, District of Hawaii
/s/ Marcia S. Kriger Chief Judge, District of Colorado	/s/ B. Lynn Winmill Chief Judge, District of Idaho

 

/sf James E, Shadid Chief Judge, Central District of Illinois	/s/ Dee D Drell Chief Judge, Western District of Louisiana
Ruben Castillo Chief Judge, Northern District of Illinois	/s/ Brian A. Jackson Chief Judge, Middle District of Louisiana
/s/ David R. Herndon Chief Judge, Southern District of Illinois	/s/ John A. Woodcock Jr. Chief Judge, District of Maine
/s/ Philip P. Simon Chief Judge, Northern District of Indiana	Ramona V. Manglona Chief Judge, District of the Northern Mariana Islands
/s/ Richard L. Young Chief Judge, Southern District of Indiana	/s/ Deborah K, Chasanow Chief Judge, District of Maryland
/s/ James E. Gritzner Chief Judge, Southern District of Iowa	/s/ Patti B. Saris Chief Judge, District of Massachusetts
/s/ Linda R. Reade Chief Judge, Northern District of Iowa	/s/ Paul L. Maloney Chief Judge, Western District of Michigan
/s/ Kathryn H. Vratil Chief Judge, District of Kansas	/s/ Michael J. Davis Chief Judge, District of Minnesota
/s/ Karen K. Caldwell Chief Judge, Eastern District of Kentucky	/s/ Louis Guirola Jr. Chief Judge, Southern District of Mississippi
/s/ Joseph H. McKinley Jr. Chief Judge, Western District of Kentucky	/s/ Michael P. Mills Chief Judge, Northern District of Mississippi

 

/s/ Catherine D. Perry Chief Judge, Eastern District of Missouri	/s/ Frank D. Whitney Chief Judge, Western District of North Carolina
/s/ Fernando J. Gaitan Chief Judge, Western District of Missouri	/s/ William L, Osteen Jr, Chief Judge, Middie District of North Carolina
/s / Dana L. Christensen Chief Judge, District of Montana	/s/ James C, Dever 10 Chief Judge, Eastern District of North Carolina
/s/ Laurie Smith Camp Chief Judge, District of Nebraska	/s/ Ralph Brikson Chief Judge, District of North Dakota
/s/ Joseph N. Laplante Chief Judge, District of New Hampshire	Chief Judge, Southern District of Ohio
Jerome B. Simandle Chief Judge, District of New Jersey	/s/ Solomon Oliver Jr. Chief Judge, Northern District of Ohio
/s/ M. Christina Armijo Chief Judge, District of New Mexico	/s/ Gregory K. Frizzell Chief Judge, Northern District of Oklahoma
/s/ Gary L. Sharpe Chief Judge, Northern District of New York	Ann Aiken Chief Judge, District of Oregon
/s/ Carol Bagley Amon Chief judge, Eastern District of New York	/s/ Sean J. McLaughlin Current Chief Judge, Western District of Pennsylvania
/s/ William M. Skretny Chief Judge, Western District of New York	/s/ Joy Flowers Conti Incoming Chief Judge, Western District of Pennsylvania

 

/s/ Petrese B. Tucker Chief Judge, Eastern District of Pennsylvania	/s/ Fred Biery Chief Judge, Western District of Texas
/s/ Aida M. Delgado-Colon Chief Judge, District of Puerto Rico	/s/ Leonard E. Davis Chief Judge, Eastern District of Texas
/s/ Mary M. Lisi Chief Judge, District of Rhode Island	Sidney A. Fitzwater Chief Judge, Northern District of Texas
/s/ Terry L. Wooten Chief Judge, District of South Carolina	/s/ Ted Stewart Chief Judge, District of Utah
/s/ Jeffrey L. Viken Chief Judge, District of South Dakota	/s/ Christina Reiss Chief Judge, District of Vermont
/s/ Thomas A, Varlan Chief Judge, Eastern District of Tennessee	/s/ Curtis V, Gomez Chief Judge, District of the Virgin Islands
/s/ Jon P. McCalla Chief Judge, Western District of Tennessee	/s/ Rebecca Beach Smith Chief Judge, Eastern District of Virginia
/s/ William. J. Haynes Chief Judge, Middle District of Tennessee	/s/ Glen E. Conrad Chief Judge, Western District of Virginia
Ricardo H. Hinojosa Chief Judge, Southern District of Texas	/s/ Marsha J. Pechman Chief Judge, Western District of Washington

 

/s/ Rosanna Malouf Peterson Chief Judge, Eastern District of Washington	/s/ William C. Griesbach Chief Judge, Eastern District of Wisconsin
/s/ John Preston Bailey Chief Judge, Northern District of West Virginia	/s/ William M. Conley Chief Judge, Western District of Wisconsin
/s/ Robert C. Chambers Chief Judge, Southern District of West Virginia	Chief Judge, District of Wyoming

 

cc: John D. Bates

Director, Administrative Office of the United States Courts