THE FEDERAL JUDICIARY:
STATEMENT OF JUDGE WM. TERRELL HODGES
CHAIRMAN, EXECUTIVE COMMITTEE
JUDICIAL CONFERENCE OF THE UNITED STATES
FEDERAL JUDICIARY GOVERNANCE 2
THE JUDICIARY'S MISSION 4
FEDERAL COURT WORKLOAD 6
UNITED STATES DISTRICT COURTS 6
Civil Filings 7
Criminal Filings 8
Probation and Pretrial Services 9
Defender Services 10
UNITED STATES COURTS OF APPEALS 10
UNITED STATES BANKRUPTCY COURTS 11
JUDICIAL RESOURCES 12
Judgeships 13
Other Judiciary Staff 14
Court Operations 14
Court Security 15
Courthouse Facilities 16
Defender Services 17
CURRENT ISSUES AND CONCERNS 20
Federalization of Crime and Other Jurisdictional Issues 20
Judgeships 21
The Impact of Judicial Vacancies 22
Rulemaking by Congress 23
Judicial Compensation 23
Judiciary Employee Benefits 25
Bankruptcy Reform Bills and Information Issues 25
Courthouse Construction and Real Property Authority 27
Reimbursement to the Judiciary for Criminal Forfeiture Expenses 28
Panel Attorney Hourly Rates 28
CONCLUSION 30
THE FEDERAL JUDICIARY:
STATEMENT OF JUDGE WM. TERRELL HODGES
CHAIRMAN, EXECUTIVE COMMITTEE
JUDICIAL CONFERENCE OF THE UNITED STATES
I am here today to testify on behalf of the federal judiciary. Also appearing with me are the Director of the Administrative Office of the United States Courts, Leonidas Ralph Mecham, and the Director of the Federal Judicial Center, Judge Rya W. Zobel.
Before I begin, I would like to express my appreciation to the chairman, Mr. Coble, and the other members of this subcommittee for the support you have given the judiciary. We are particularly grateful for your action this year on the Federal Courts Improvement Act of 1998 (H.R. 2294).
Today, I will summarize the judiciary's unique governance structure and its mission and work. I will highlight some activities that may be of interest, and note our most pressing concerns.
The judiciary's governance structures and mechanisms are uniquely suited to the judiciary--striking a careful balance between judicial independence and administration by national, regional, and individual court authorities.
I appear before you in my capacity as chairman of the Executive Committee of the Judicial Conference of the United States. The Judicial Conference of the United States is the policy-making body for the federal judiciary. The Chief Justice of the United States is the presiding officer, and there are 26 additional members: the chief judge from each of the 12 regional circuit courts of appeal, one district judge from each circuit, and the Chief Judges of the Court of Appeals for the Federal Circuit and the Court of International Trade.
The Chief Justice has established a number of Judicial Conference committees along subject matter lines, such as automation, bankruptcy, budget, court administration and case management, criminal law, defender services, rules, and security and facilities. The Executive Committee, which I chair, acts on behalf of the Judicial Conference between regular sessions on any matter requiring emergency action.
The Director of the Administrative Office of the U.S. Courts serves as Secretary to the Judicial Conference and carries out specific statutory authorities as the chief administrative officer for the federal courts under the supervision and direction of the Judicial Conference. The Administrative Office provides staff to the Judicial Conference committees and it is the judiciary's primary support agency for program development, implementation, and assessment; financial management; technology development and support; data collection and analysis; administrative program support; communications; and legislative liaison.
The Federal Judicial Center is the judicial branch's primary education and research center. It provides training for judges and judiciary staff, and it conducts research in areas of judicial administration.
The Judicial Councils of the Circuits oversee court operations within their regions. They have specific statutory authority to "issue all necessary and appropriate orders for the expeditious administration of justice" within the circuit.
Each of the 94 district courts, 90 bankruptcy courts, and 13 courts of appeals, by statute and practice, exercises a great deal of discretion in determining local rules and practices and in managing its operations within the guidelines set by Judicial Conference policies, administrative directives, and circuit judicial council orders.
Article III of the United States Constitution established the federal judiciary as an independent and co-equal branch of the federal government, along with the executive and legislative branches. Our nation's founders considered an independent judiciary essential to ensuring fair and equal justice under law for the citizens of the United States.
Federalism lies at the heart of our Constitution's creation of a national government with limited, delegated powers. In granting Congress the authority to establish courts and prescribe their jurisdiction, the Framers provided two important guideposts: (1) the purpose of the federal courts should be to complement, not supplant, state court systems; and (2) the federal courts should be a distinctive judicial forum of limited jurisdiction, performing only those functions that state courts cannot.
Judicial federalism proceeds from the idea that the state and federal courts together comprise an integrated system for delivery of justice in this country. Historically, the two sets of courts have played different, but equally significant, roles. The state courts have served as the primary forum for resolving civil disputes and enforcing the criminal law. The federal courts, by contrast, have had a much more limited mandate, with the source and nature of federal jurisdiction derived solely from the powers vested in Congress. Article III, Section 2 of the Constitution potentially extends federal judicial power to a wide range of "cases and controversies," but the Framers wisely left the actual scope of lower federal court jurisdiction to legislative discretion. For much of our nation's history, Congress was reluctant to expand federal court jurisdiction at the expense of the state courts. But in recent years, the trend has been toward ever increasing "federalization" of litigation-- most notably in the criminal justice context.
One of the greatest challenges confronting the federal judiciary is to continue providing just and timely adjudication of a burgeoning federal docket. Over the past decade, a variety of proposals have been made, and some enacted, that expand jurisdiction in the federal courts over criminal and civil litigation in areas traditionally reserved to the states. We have witnessed in the past few years a trend toward federalization of a wide variety of narcotics offenses, violent street crimes, firearms violations, and other crimes. For example, such legislation as the Anti-Car Theft Act of 1992 and the Freedom of Access to Clinic Entrances Act of 1994 brings before the federal courts the types of cases that previously were prosecuted solely in the state courts. There are bills pending in Congress that would, if enacted, expand the role of federal courts in prosecutions of juveniles--especially where the offender is to be prosecuted as an adult.
On the civil side, the docket has also seen dramatic growth in recent decades. This reflects not only a growing litigiousness on the part of the American public, but also a readiness on the part of lawmakers to provide a federal solution to highly visible social and economic ills, despite the long-term costs to the justice system.
Fueled by these developments, the number of cases filed in federal courts keeps growing. This signals a serious threat to the basic tenets of our system of justice. If federal courts come to exercise, in the normal course of business, the broad range of subject-matter jurisdiction traditionally reserved to the states, they could lose both their distinctive nature and their ability to resolve fairly and efficiently those disputes of clear national import that properly fall within the scope of federal jurisdiction, such as cases involving interpretation and enforcement of the Constitution itself.
Because the Constitution gives Congress the power to determine the jurisdiction of the federal courts, it is Congress that controls most of the types of cases and disputes that will be addressed in federal courts. The executive branch determines the government's law enforcement, prosecutorial, and civil litigation strategies, and it is a primary litigant in the federal courts.
The courts decide cases that are brought to them; they do not determine what those cases will be, when they will come, how many will come, or who will bring them. Increasing the volume and complexity of the work of the federal courts are these catalysts: new legislation and regulations, expanding federal jurisdiction, more law enforcement activities, increasing litigiousness, case law developments, and economic and social developments. More work for the courts requires additional judges, staff, buildings and facilities, defense services, supervision of offenders, juror usage, security measures, information processing and administrative programs.
The workload of the federal courts keeps growing. Despite productivity gains by judges, with no increases in Article III judgeships since 1990 or bankruptcy judgeships since 1992, compounded by a large number of unfilled judicial vacancies, many courts are simply congested with too much work and growing backlogs.
The district courts continue to face
increasing workloads. Total filings per
judge increased 17% from 1993 to 1997
-- from 426 filings per authorized judgeship in 1993 to 498 filings per authorized
judgeship in 1997. The number of "weighted" filings per judge, which is a
measure reflecting the complexity of different case types, rose 7% in the last year
alone, and 20% since 1993.
Civil cases, which constitute the majority of filings, increased 18% from 1993 to
1997 (reaching 272,072 cases). The increase was due largely to civil rights,
personal injury, and prisoner-petition cases. Actions involving the United States
as a plaintiff or defendant also increased. Civil filings per authorized judgeship
grew from 354 cases in 1993, to 420 cases per judgeship in 1997. Although
district judges achieved a 10% increase in the number of civil case terminations
per judge over this period, this productivity gain was overshadowed by the larger
increase in filings; thus, the number of pending cases per judge continues to
grow.
Criminal filings increased 8% from 1993 to 1997, to an all-time high of 50,363-- their highest levels since 1933, when the Prohibition Amendment was repealed. Criminal filings per authorized judgeship increased by 8%, from 72 cases in 1993 to 78 cases per judgeship in 1997. The increase in criminal cases was primarily due to a rise in drug, immigration, and fraud cases.
Because of a freeze in hiring assistant U.S. attorneys, there was a temporary decline in the number of criminal cases filed in the district courts in 1994 and 1995. After more prosecutors were hired by the Justice Department, criminal filings in the district courts increased by 10% from 1995 to 1997, and they have continued at an increased pace this year. Drug prosecutions increased 19% from 1995 to 1997, and they accounted for 27% of all criminal cases filed in 1997. Increased activity by the Justice Department against alien smuggling and illegal re-entry of deported aliens led to substantial increases in criminal immigration filings, which jumped 21% in 1997 alone.
These statistics demonstrate the relationship between the criminal workload in the district courts and the level of resources provided by Congress to the Department of Justice and other executive branch law enforcement agencies. This year, the Department of Justice plans to increase the number of attorneys in its litigating divisions, and U.S. attorneys' offices will grow by 6%. Also, the Department of Justice plans to increase the number of Federal Bureau of Investigation, Drug Enforcement Administration, and Immigration and Naturalization Service agents and investigators by 7%. These increased resources will undoubtedly translate into additional filings in the courts in 1999 and beyond.
Increases in the number and changes in the types of criminal cases also have a substantial impact on other judiciary programs. The effects on probation and pretrial services offices and on the defender services program are described below.
Increased criminal filings have caused growth in the workload of the probation and pretrial services functions in the districts. United States probation and pretrial services officers play an essential role in controlling crime and protecting the public. Probation officers supervise offenders serving sentences in the community, including probation and supervised release imposed by the federal courts and parole granted by the United States Parole Commission or military authorities. Pretrial services officers supervise persons who are charged with offenses and released pending adjudication.
The control of risk to the community is the most critical function of the probation and pretrial services system. Officers conduct home and employment inspections to look for contraband, monitor lifestyles, and detect association with known criminals. They use urine testing to detect and deter substance abuse, financial investigations to assess resources and ability to pay fines and restitution, and home confinement with electronic monitoring to isolate and control selected offenders. Officers provide or contract for substance abuse and mental health treatment where appropriate to reduce the risk of recidivism and protect the community.
The number of persons subject to pretrial services investigations increased by 21% from 1993 to 1997, and the number of defendants released under supervision by pretrial services officers increased 10%.
An all-time high of 91,434 convicted offenders were under the supervision of probation officers at the end of 1997. This number was 5% greater than the number in 1993. In fact, the judiciary is supervising nearly as many offenders as the Federal Bureau of Prisons, which has 118,000 offenders. The rise in caseload is almost entirely due to the significant increase in the number of offenders released to the community on "supervised release" from prison. These offenders tend to have more serious criminal histories including acts of violence and substance abuse problems, and a higher risk of recidivism. A report by the General Accounting Office entitled Federal Offenders, Trends in Community Supervision, concluded that inmates to be released from federal prisons through 2001 will include a greater number of high-risk offenders than did the population released from prison prior to 1997. This portends more difficult supervision caseloads for probation officers in years to come.
The right to criminal defense counsel is guaranteed by the Sixth Amendment to the Constitution. The judiciary's defender services program originated with the 1964 enactment of the Criminal Justice Act (CJA), 18 U.S.C. § 3006A, to provide for the compensation and expense reimbursement of attorneys and others furnishing representational services for persons with limited financial means in federal criminal matters. The mission of the defender services program is to ensure that the right to counsel guaranteed by the Sixth Amendment, the CJA, and other congressional mandates is enforced on behalf of those who cannot afford to retain counsel and other necessary defense services. This program helps to maintain public confidence in the nation's commitment to equal justice under law, and ensure the successful operation of the constitutionally-based adversary system of justice by which both federal criminal laws and federally guaranteed rights are enforced.
The caseload in this program is entirely dependent on the actions taking by the Department of Justice, which prosecutes criminal defendants. More than 85% of the criminal defendants in federal courts require court-appointed counsel. As the number of criminal filings in the federal courts has grown, so has the need to provide defense services. The number of "representations" by federal defender organizations and court-appointed panel attorneys exceeded 90,000 in 1997, an 8% increase from 1993.
The number of appeals filed increased 4% from 1993 to 1997, reaching an all-time high of 52,319. The courts of appeals have handled the increased workload with fewer active appellate judges than there were in 1993. Even though the national average number of actions per appellate panel has increased over the last five years, the median time from filing to disposition has risen by more than a month (from 10 to 11 months on average), and the pending caseload has continued upward in some circuits.
Bankruptcy filings soared 52% from 1993 to 1997, surpassing one million in 1996 and reaching an all-time high of nearly 1.4 million filings in 1997. Personal bankruptcies, which comprise a large majority of bankruptcy cases, increased by 27% in 1997 alone. The volume of business bankruptcy filings has actually decreased by about 16% since 1993.
Because there have been no new
bankruptcy judgeships approved
since the Bankruptcy Judgeship
Act of 1992, the continued
dramatic increase in personal
bankruptcy filings caused the ratio
of filings per authorized judgeship
to reach nearly 4,200 by the end
of 1997. In 1993, there were
2,752 filings per judgeship.
Although we may not control the work assigned to us or the level of resources provided, the judiciary can and does control, to a great extent, how we undertake the work and how we use our resources. The Judicial Conference and its committees, the Administrative Office, and the courts are regularly engaged in identifying ways to accommodate more work, contain costs, improve services, and operate more efficiently.
In spite of the continuing growth in workload, in the fiscal year 1999 budget sent to Congress, as a result of numerous economy measures, the judiciary requested its smallest annual percentage increase in 20 years. With a total request of $4.1 billion for 1999, the budget for the judicial branch constitutes less than 0.2% of the federal budget.
In recognition of the judicial branch's unique mission and our conscientious approach to using resources as wisely and cost effectively as possible, Congress generally appropriates a high percentage of the funds requested by the courts. The Director of the Administrative Office of the U.S. Courts has reported to Congress on our efforts to streamline operations, increase the use of technology, and ensure resources are deployed appropriately and used efficiently. Copies of the Report to Congress on the Optimal Utilization of Judicial Resources will be provided to the subcommittee.
The Optimal Utilization report describes how the number of judges and court employees needed is directly linked to the judiciary's workload. For example, to hold down salary expenses, the judiciary has implemented policies and new methods for recommending the establishment and elimination of judgeship positions. We are continually increasing our use of technology to save time and staff. We have a program to identify "better practices" in the courts that can be adopted by others. We have taken a number of steps to hold down rent costs, including closing some court facilities without a resident judge and making revisions to the U.S. Courts Design Guide to reduce building construction costs and future rent costs. And we are taking steps to try to control the growing costs of defender services. All together, the numerous initiatives taken over the past several years have saved or avoided hundreds of millions of dollars in costs.
The Judicial Conference conducts systematic surveys of the need for Article III judgeships every two years and submits recommendations to Congress regarding which courts need additional judgeships. In developing its recommendations, the Judicial Conference has adopted caseload standards that all courts requesting additional judgeships must meet, absent unique circumstances. The Judicial Conference has been very restrained in making recommendations for additional judgeships, and has increased the caseload standards in recent years. The Judicial Conference also is giving greater consideration to requesting temporary rather than permanent judgeships. In a further effort to become more responsive to congressional concerns about the number of judgeships, the Judicial Conference recently adopted a process for reviewing situations where it may be appropriate to recommend that judicial positions be eliminated, or vacancies not filled, in courts where the per-judgeship caseload may be low.
The judiciary also conducts thorough, biennial bankruptcy judgeship reviews in accordance with 28 U.S.C. § 152(b)(2) and (3). The Judicial Conference has adopted detailed criteria for evaluating bankruptcy judgeship requests. It has implemented procedures to review the continuing need for each judgeship that becomes vacant due to the death, retirement, removal, or resignation of a bankruptcy judge.
Other economy measures to make the most of judicial resources and avoid adding new judgeships include the use of senior and recalled judges, the cross-designation of judgeship positions, temporary inter- and intra-circuit assignments, and the establishment of magistrate judge positions where they can be used effectively. At its meeting last week, where it reviewed requests from district and appellate courts for additional judgeships, the Judicial Conference's Judicial Resources Committee discussed options that might help to reduce future requests for new judgeships. That committee will request that the Executive Committee coordinate an effort among several committees to explore the feasibility of employing different options for handling work in the most burdened courts.
The judiciary uses sophisticated techniques for determining human resource needs. Staffing levels for clerks' offices (appeals, district, bankruptcy), probation offices, and pretrial services offices are determined by formulas derived from comprehensive national studies of the work performed in these offices. Applied each year and driven by workload demands, the formulas ensure the correct and even application of staffing throughout the judicial system. Because of numerous initiatives taken to improve operating efficiency, the courts have been able to operate with fewer employees than the staffing formulas dictate, thereby saving significant amounts of resources. In recognition of the impact of automation and other operational changes, we are now undertaking a major effort to revise the work measurement formulas.
Operating improvements are regularly introduced. In particular, in recent years, the increased use of various technologies has enabled the courts to streamline operations. Congress has been very supportive of the judiciary's initiatives to make greater use of automation and communications technologies. Continuing technological advances offer opportunities for enhancing the management and processing of information, improving communications and access to information, conducting legal research, and holding court proceedings. Director Mecham will describe some of the accomplishments thus far and some of the projects underway in his testimony about the activities of the Administrative Office. Judge Zobel will also address the cost-effective use of distance-learning technology by the Federal Judicial Center for training judiciary employees. I will mention only a couple of examples of the effective use of automation in the courts.
The automation of processes in the bankruptcy courts has enabled them to handle an enormous volume of cases. For example, the Bankruptcy Noticing Center, under contract to the Administrative Office, last year issued 72 million bankruptcy notices for the bankruptcy courts. Since its inception in 1993, the Bankruptcy Noticing Center has saved the judiciary more than $11 million compared with the old court-based noticing process. Under development is a program to send bankruptcy notices electronically to major creditors who are capable of handling them. This has the potential to achieve large savings.
Electronic Public Access programs, which are self-funded through user fees, have made selected court records readily available to litigants and the public. The judiciary is also exploring the use of electronic case file system employing the Internet or other means. Such systems have significant potential to affect how the courts process the large volumes files and documents that are currently maintained in paper form. We have projects underway now to evaluate and develop these capabilities and to redesign the core appellate, district and bankruptcy court case management systems to take advantage of them.
One of the most visible uses of technology will be seen in the courtroom. Volunteer courts have been testing the effectiveness of various courtroom technologies. An evaluation was recently completed that demonstrates the value of using various technologies, such as evidence presentation equipment, real-time recording of the record, and video-conferencing. This month, the Judicial Conference's Committee on Automation and Technology will review the results of this evaluation and make recommendations to the Judicial Conference.
Court security needs have increased substantially in recent years and the budget for this program has been growing. The U.S. Marshals Service has statutory responsibility for the provision of security to the judiciary. Funds appropriated to the judiciary to support the judicial facility security program are transferred to the U.S. Marshals Service to pay for contract court security officers, and security systems and equipment in court facilities. Security is necessary not only for the judges, but for all who enter courthouses, including jurors, court employees, attorneys, and witnesses.
The judiciary has enhanced its financial oversight of the funds transferred to the U.S. Marshals Service to ensure they are spent in accordance with a memorandum of agreement between the U.S. Marshals and the Administrative Office of the U.S. Courts. The judiciary has also increased its oversight of how the U.S. Marshals Service is providing security-related services to the courts, and we have given the Marshals Service additional resources to help improve program management.
The judiciary is dependent on the executive branch for its buildings. The General Services Administration (GSA) builds and manages federal courthouses, and courthouse construction funds are appropriated by Congress to GSA. The judiciary, the Congress and GSA over the past several years have, in a concerted effort, developed an orderly, logical, and economical program for identifying, evaluating, prioritizing, and funding the replacement of federal courthouses. The increasing caseloads, increased staffing needs and the changing nature of the courts' workloads have pushed existing courthouse facilities to their maximum capacity, rendering many obsolete. In fact, most of the courthouses being used today were built in two earlier periods of construction. The first was just after the civil war, and the second period was in the 1930's. Needless to say the majority of these facilities, which were not built to accommodate such growth, are now severely overcrowded. In addition, these older buildings are suffering serious security deficiencies that pose a safety risk for the judges, staff, litigants, witnesses, and jurors. They are structurally incapable of accommodating the new technology being used in the courts. The judiciary's courthouse program facilitates the construction of high quality, secure and functional court facilities that will last for several decades and foster the effective administration of justice.
The Judicial Conference, upon recommendations by its Security and Facilities Committee and its Budget Committee, undertook a number of initiatives to contain the cost of rent in the judiciary and to limit the cost of new courthouse facilities. In fiscal year 1997, the judiciary released 62,773 square feet of existing space with an associated annual rent savings of about $1 million. Combined with fiscal year 1996 reductions to existing and planned space assignments, the judiciary has reduced projected space inventory and annual rent costs by 643,888 square feet and $13.4 million.
During the past year, the federal judiciary conducted a comprehensive review of the U. S. Courts Design Guide, first published by the judiciary in 1991. The Design Guide contains the information needed by GSA, private sector designers and builders, and members of the judiciary about the special requirements of federal courthouses that make them functional, secure, high-quality public buildings. Recommendations for changes to the Design Guide, many of which will save construction costs, were approved by the Judicial Conference of the United States at its March 1997 meeting.
The judiciary will continue to examine possibilities for further reductions. As part of this ongoing effort, the judicial councils are to submit every two years evaluations of all current space in each occupied building to determine whether space can be used more efficiently or released to the General Services Administration.
A question was raised by some in Congress about the possibility of limiting the number of courtrooms by requiring judges to share courtrooms. This question was extensively studied by the judiciary, and in March 1997, the Judicial Conference reaffirmed a policy that provides a courtroom for each active district judge.
Providing a courtroom for each active district judge permits timely handling of emergency matters, such as requests for injunctions, grand jury problems, contempt hearings, and detention and bail appeals. Moreover, this practice provides an effective incentive to settle large multi-party cases, opportunities that may be lost without the immediate access to a courtroom. Firm trial dates promote settlement in civil cases and pleas in criminal cases, thereby avoiding the need for and cost of trials. This also ensures that cases that go to trial are handled expeditiously, as required by the Speedy Trial Act of 1974. You can imagine how difficult it would be for congressional committees to carry out your business if you did not have designated hearing rooms.
The Judicial Conference also encourages the circuit judicial councils to develop policies on courtroom sharing by senior judges, particularly for senior judges who do not draw caseloads requiring substantial use of a courtroom, and for visiting judges. All circuit judicial councils have developed courtroom-sharing policies for senior and visiting judges.
Increasing criminal workload has continued to drive up the total costs for providing defense services under the Criminal Justice Act (CJA). In particular, defense costs have increased as a result of legislation passed over the last decade to revive the federal death penalty and expand the number of federal crimes punishable by death.
In response to congressional concerns about the increasing costs of defender services, the judiciary recently provided Congress a comprehensive analysis by an independent consultant, Coopers & Lybrand. The major finding was that average costs per case in this program have been elevated by a relatively new phenomenon: federal death penalty prosecutions. Although the number of death penalty cases is relatively small, Coopers & Lybrand found that when the cost of death penalty representations are excluded--especially the few very expensive, high-profile cases--the average annual cost of the remaining cases has only grown by a rate roughly equivalent to inflation.
This and other studies show that program costs are in line with the increase in the number of representations, the increasing proportion of capital prosecutions and capital habeas representations, and the costs incurred in a handful of extraordinarily expensive representations each year.
Although the judiciary cannot control the workload in the defender services program, the judiciary is taking action wherever possible to contain program costs and to identify best practices and institute procedures designed to ensure that CJA representation is both high quality and cost- effective, including the following initiatives:
Development of a Comprehensive Performance Measurement System for the Defender Services Program. The judiciary is well along in developing a performance measurement system by which the judiciary, the Congress and the American people will be able to assess the value received for the dollars expended.
Subcommittee on Federal Death Penalty Cases. The Judicial Conference Committee on Defender Services established a Subcommittee on Federal Death Penalty Cases to review the cost and quality of defense representation in federal death penalty cases. The subcommittee is examining the impact of such factors as the current statutory limits on attorney hourly rates and expert compensation costs, standards of professional responsibility, federal statutes regulating appointment of counsel, the type of service provider (federal defender versus private attorney), and training and other support currently being provided to appointed counsel in federal capital prosecutions.
Improved Capital Habeas Corpus Voucher Review Processes. At its September 1997 session, the Judicial Conference adopted a policy urging each circuit judicial council to establish a special process for the review of any state death penalty habeas corpus case within the circuit in which attorney compensation exceeds $100,000. This will ensure that counsel charges in high- cost cases receive careful scrutiny before payments are made.
Capital Habeas Corpus Cost Management Initiatives. To improve management of the costs of capital habeas corpus cases, the judiciary is encouraging courts to 1) require counsel to submit proposed litigation budgets for court approval before commencement of representation and 2) employ case management techniques commonly used in complex civil litigation.
Controlling Federal Defender Organization Costs. The judiciary has revised its budgetary procedures to tighten controls on federal defender organization spending, such as requiring a review of caseload statistics before filling vacant positions.
Pilot Studies to Improve Panel Attorney Management and Voucher Review Process. The judiciary is conducting a pilot project to explore the benefits of using a supervisory attorney to assist with administering the panel of private attorneys accepting court appointments and with reviewing payment claims submitted by attorneys and other service providers.
Reviewing and Assessing Defender Program Operations. Reviews help defender organizations improve the effectiveness and efficiency of their operations, and enable the Administrative Office to collect and disseminate "better practices."
As summarized above, the judiciary is committed to analyzing our organizations, operations, and programs to monitor spending patterns, analyze cost increases, identify ways to contain costs, and make policy and operational changes to improve economy and efficiency where feasible.
It is, of course, the province and function of Congress to define the jurisdiction of the federal courts based on members' perception of whether a federal response is needed to our society's changing conditions. And the federal courts will continue to carry out their responsibility to exercise any jurisdiction lawfully conferred upon them. But the ideals of judicial federalism should be heeded as lawmakers decide on particular bills and proposals. Although reasonable minds certainly can differ on where to draw the line in apportioning judicial workload, it is critical that the following question be asked in Congress, within the legal community, and among the general public: "Are the federal courts to be the forum for resolving disputes of any kind based on their public visibility or notoriety, or only those matters that cannot practically be resolved in any other place, especially cases involving constitutional claims or issues?" The courts cannot answer that question in the final analysis, but they, and the American people, will have to live with the consequences of the answers given.
In 1995, the Judicial Conference of the United States recommended, in the Long Range Plan for the Federal Courts, a series of principles for conserving the federal courts' civil and criminal jurisdiction "only to further clearly defined and justified national interests, leaving to the state courts the responsibility for adjudicating all other matters." Consistent with this overarching principle, the Plan urges Congress to limit the criminal caseload of the federal courts to five categories:
Likewise, the Long Range Plan identifies six types of cases--constitutional disputes; matters involving a strong need for uniformity or paramount federal interests; matters affecting the foreign relations of the United States; cases involving the federal government, its agencies or officials; disputes between or among the states; or matters affecting substantial interstate or international activities--in which clearly defined and justified federal interests justify a federal forum.
In March 1997, the judiciary transmitted proposed legislation to the 105th Congress requesting the creation of permanent and temporary court of appeals and district court judgeships. The Judicial Conference requested 12 permanent and 5 temporary court of appeals judgeships, and 24 permanent and 12 temporary district court judgeships. Based on changing workload, the circuit judgeship requirement was reduced by one by the Judicial Conference in March 1998, and one district's judgeship request was withdrawn and another one added. As you know, the House has not acted on these requests.
The last year Congress created additional Article III judgeships was 1990. Since that time, the caseload used to recommend judgeship needs has grown nearly 22% in the courts of appeals and 31% in the district courts. In contrast, the judiciary requested a 9% increase in the number of court of appeals judgeships and a 6% increase in the number of district court judgeships. These judgeship requests are modest by comparison to the increases in the caseload.
The need for judicial resources is becoming critical in some courts, and if the caseload continues to grow at the current pace without additional judgeships, it will not be long before the entire system is in a critical state. The Judicial Conference will again submit a judgeship request in March 1999. I hope we can count on your support.
I appreciate the support we received in the House last year in its passage of a bill to create 18 additional bankruptcy judgeships (11 temporary and 7 permanent), as requested by the Judicial Conference. The Senate Judiciary Committee recently reported out a bankruptcy judgeship bill, but the full Senate has not yet acted.
High numbers of judicial vacancies adversely affect the judiciary's ability to meet its workload. Fortunately, the pace of filling judicial vacancies has quickened in 1998. During the 105th Congress, President Clinton has nominated 113 people to fill vacant judgeships. To date, 13 appellate judges, 49 district judges and 2 judges on the Court of International Trade were confirmed by the Senate, for a total of 64.
As of June 5, 1998, there were 75 Article III vacancies: 20 on the courts of appeals, 54 on the district courts, and 1 on the Court of International Trade. There are 45 nominations pending for these positions: 11 for the courts of appeals, 33 for the district courts, and 1 on the Court of International Trade. Thirty-three of the vacancies are considered judicial emergencies, having been in existence for 18 months or longer.
To illustrate the seriousness of the vacancy problem, I note the unprecedented action taken by Chief Judge Ralph K. Winter in the Second Circuit Court of Appeals. The 13-member court had five vacancies, which forced Chief Judge Winter to declare a "judicial emergency," cancel some panels that were scheduled to sit earlier this year, and determine that future panels can consist of two visiting judges and just one judge from the Second Circuit. Fortunately, two nominees for this circuit were confirmed last week. Similar problems exist throughout the country in other courts of appeals and district courts.
Senior judges increasingly help courts with judicial vacancies and pressing caseloads handle their work. In 1997, more than 20% of all district court trials were conducted by senior judges. Senior judges, who must be at least 65 years of age and have served for a minimum of 15 years, are volunteer public servants. Since Article III of the Constitution gives them a lifetime appointment and prohibits diminution of their salary, senior judges would be compensated even if they chose to retire and perform no judicial work.
The federal rules of practice and procedure are the primary responsibility of the federal judiciary. The Judicial Conference's Committee on Rules of Practice and Procedure, and its five advisory committees, are properly concerned when bills are introduced in Congress to amend the federal rules directly by statute, bypassing the Rules Enabling Act. More than twenty-five bills have been introduced in this Congress affecting the rules.
The general rules of practice and procedure affect the daily business of the courts. The rules have evolved over time and form an intricate, interlocking whole. Changes in one rule can have unforeseen and unintended consequences affecting other rules. Widespread opportunity to comment by those who work daily with the rules and meticulous care in drafting by experts--as envisioned by the Rules Enabling Act--have demonstrated the superiority of the rulemaking process. The rules committees are committed to defending the Rules Enabling Act process and promoting it by reaching out to the bar and public for their input.
The procedures for public notice and comment, and the careful drafting and review contemplated by the Rules Enabling Act have produced high-quality rule amendments and have generally satisfied Congress that recourse to amending the rules directly is not necessary or prudent. Indeed, very few bills amending the rules have been enacted into law. In turn, the rules committees are sensitive to congressional criticism that the rulemaking process can be too slow. In particular instances, the process has been accelerated.
Although sometimes arcane and strictly procedural, rules can implicate substantial interests involving substantive rights of individuals. Congress has a clear duty in rulemaking, but the genius of the Rules Enabling Act process is that it accords to each branch of government its proper role in this shared endeavor.
The Constitution guarantees the independence of federal judges in two important ways: lifetime tenure during good behavior, and undiminishable compensation during their tenure. These protections help ensure an independent judiciary that decides cases free from popular passion and political influence.
I would like to thank Congress for the 2.3% Employment Cost Index (ECI) adjustment it approved for federal judges, members of Congress, and top-level executive branch personnel this fiscal year. However, this was the first pay adjustment for these government officials since 1993. Even with this increase, inflation has reduced the actual value of the salaries of these officials by about 14% over the past five and a half years.
Consequently, the Judicial Conference strongly supports a 1999 pay adjustment for judges, Members of Congress, and top executive branch officials. In recent years, Chairmen Bob Livingston of the House Appropriations Committee and Ted Stevens of the Senate Appropriations Committee have both observed that the repeated denial of annual cost-of-living increases to these officials may imperil the pluralism and integrity of all three branches of government. To deal with this problem, the judiciary believes that annual General Schedule ECI adjustments should be extended to top officials in all three branches of government.
In addition to permitting the annual adjustment of the salaries of judges, Members of Congress, and high-level federal executives, Congress and the President need to fix the process by which the salaries of these officials are set. The current process for fixing the salaries of top federal officials--the Citizens Commission on Public Service--has not served this purpose. Congress effectively canceled the 1993 Commission by rescinding its appropriation, and the 1997 Commission was not impaneled. There is, therefore, no practical machinery today for reviewing the adequacy of the salaries of top federal officials.
The Judicial Conference believes that this matter needs to be addressed, and strongly encourages Congress to consider reestablishing a panel similar to the former Commission on Executive, Legislative and Judicial Salaries (popularly known as the Quadrennial Salary Commission). This "blue ribbon" Commission was keenly aware that its charge was to determine not only how much top government officials need to live on, but also what needs to be done in order to attract and retain top quality officials. Otherwise, the morale and quality of top officials in all three branches is endangered.
The judiciary has undertaken an assessment of the federal benefits programs available to its workforce. Last year, the Administrative Office contracted with Towers Perrin, an international benefits consulting firm, to study the adequacy of the federal employee benefits package offered to judicial officers and employees. The study found the benefits package to be lacking in certain areas such as coverage for prescription drugs and mental health treatment, dental benefits, long-term care, and disability benefits.
To meet the needs of its employees and to address the demographics of its aging workforce (e.g., the average age of a judge is 56, which is 11 years higher than the average age of federal employees), the judiciary will be exploring new employee pay-all benefits options, such as long-term care insurance. Also, we will be seeking legislation to grant the judiciary the authority to establish a program of supplemental benefits not covered by the core federal benefits program. Congress may be interested in improving the benefits options for its own members and staff, and we can work cooperatively with you on this initiative.
Senator Charles Grassley and Representative George Gekas have introduced separate bankruptcy reform bills (S. 1301 and H.R. 3150) that, among other things, would create a "needs-based" bankruptcy system. While the bankruptcy system may need reform, it should be recognized that these bills could increase the cost of administering the bankruptcy system.
The two bills contain some provisions that the judiciary considers problematic. The Senate bill would require the Administrative Office to collect, publish, and report to Congress annually data on consumer debtors that are currently not collected. The House bill, as clarified in the House Report 105-540, has a better approach that would charge the Executive Office for the United States Trustees with collecting, publishing, and reporting to Congress data on consumer debtors, but in a form prescribed by the Administrative Office.
The primary business of the federal courts is the processing and disposition of cases. A vast array of information on the nature and volume of the work of the federal courts is collected and reported by the Administrative Office of the U.S. Courts. These statistics reveal a great deal, not only about what work is before the courts, but about the impact of laws, and changing societal issues.
There is always some interest in collecting more and more information. However, it is important to recognize that information collection is an expensive investment, and there are many practical implications associated with forms and systems redesign to compile and disseminate new reports, including staff costs, collection time, processing, analysis and quality control. The Executive Committee, on behalf of the Judicial Conference, has taken this position:
The federal judiciary should collect and maintain those data it requires for its own operations to fulfill its statutory requirements. Accordingly, the collection of financial data on consumer debtors, if desired by Congress, should be assigned to the United States trustee system, which is responsible for supervising trustees and estates and approving distributions to creditors.
One concern we have with the House bill is that it expresses "the sense of the Congress" that all public record data held by bankruptcy clerks in electronic form should be released in electronic form to the public on demand. A number of individuals and consumer groups have raised privacy concerns over this provision. In response, the Executive Committee, again on behalf of the Judicial Conference, has taken the following position:
Release of data held by the federal judiciary shall be subject to appropriate privacy concerns and safeguards.
A third area of concern relates to provisions in these bills regarding bankruptcy appeals. The House bill would allow direct appeal to the court of appeals, and the Senate bill provides for expedited district court review. These provisions could effect a fundamental change in court structure, and we urge Congress to make no change in the current appellate structure for review of dispositive orders of bankruptcy judges without further study.
As these two bills make their way through Congress, I urge the members of this subcommittee and others in Congress to consider their impact on the judiciary.
Congress has been very supportive of the federal courthouse construction program in the past. Unfortunately, the President's FY 1999 budget submission contained no funding for courthouse construction, site acquisition, or design. This is the second consecutive year that the President's budget has "frozen" all courthouse construction funds.
The freeze is a serious blow to the judiciary. The Judicial Conference's five-year plan for courthouse construction recommends funding for 14 projects in FY 1999 at a total cost of approximately $500 million. Many of these projects have already been delayed one year due to last year's moratorium. These include facilities in Denver, Colorado; Laredo, Texas; Brooklyn, New York; Wheeling, West Virginia; Jacksonville, Florida; and Greenville, Tennessee. With additional delays, security and operational problems caused by aging and obsolete court facilities will continue to worsen. Also, the delay will cause the costs of these projects to increase. The General Services Administration (GSA) agrees that these courthouse projects are fully justifiable, but the Office of Management and Budget will not submit the projects for congressional consideration.
Earlier this year, on behalf of the judiciary, Chief Justice William H. Rehnquist wrote to the Republican and Democratic leadership and the chairs of the Senate and House Appropriations Committees, urging their support for funding courthouse construction projects. Since then, we have been successful in getting the Senate Budget Committee to recommend funding for all the judiciary's fiscal year 1999 courthouse construction projects. We are optimistic that the House and Senate Appropriations Committees will provide these funds to GSA. I ask for your support in urging the House leadership to support funding for these courthouse construction projects.
In 1989, the Judicial Conference endorsed legislation that would give the judiciary real property authority independent of the executive branch. Although this legislation has not been actively pursued for some time, the "freeze" on courthouse construction funds the past two years makes it a point worth raising again.
Currently, the General Services Administration has the statutory authority to build courthouses and to provide for other facilities-related needs of the courts. At the same time, under 28 U.S.C. § 604(a)(12), the Director of the Administrative Office has the statutory authority to "provide accommodations for the courts, the Federal Judicial Center, the offices providing pretrial services and their clerical and administrative personnel." In short, the Director has the statutory duty to attend to all matters related to space and facilities for the courts, but he is dependent on GSA to fulfill those responsibilities.
In three of the past five years, the defender services program has experienced budget shortfalls that led to the suspension of payments to private "panel" attorneys. The use of asset forfeiture by the Department of Justice has added to the financial burden on the courts by requiring the judiciary to secure counsel for otherwise financially secure defendants who could have retained private counsel. Although other federal and state government entities are reimbursed for costs related to seizures and forfeitures of assets based upon their participation in these actions, the courts receive no similar reimbursement.
The judiciary has unsuccessfully sought to obtain congressional approval to remedy this situation so that seized assets can be used to help defray defense costs. If the expenses to the defender services appropriation, and those of the judiciary generally, were offset by provisions for appropriate sharing of the funds that accrue to the federal government through the seizure of assets of criminal defendants, this would reduce the direct appropriations needed for this purpose.
The current panel attorney compensation rates of $65 per in-court hour and $45 per out-of-court hour in most federal districts are very low to attract panel attorneys with the requisite skill and knowledge to provide defense services in a modern federal criminal prosecution. According to The Annual Survey of Law Firm Statistics, by Altman, Weil and Pensa, the average hourly billing rates are $194 and $134 for partners and associates, respectively.
The judiciary is attempting to address the negative impact of low panel attorney rates by providing training and other support services to panel attorneys. However, the efforts are not likely to succeed in the absence of a rate increase that attracts more experienced counsel and provides a financial incentive for assigned counsel to develop and maintain a federal criminal practice expertise.
In 1986, the Criminal Justice Act was amended to authorize the Judicial Conference to set higher maximum hourly rates of up to $75 per hour where it could be shown that such a rate increase was warranted and to permit the judiciary to raise hourly rates in accordance with federal employee annual cost-of-living increases. The Judicial Conference approved the higher rate of $75 per hour for 93 of 94 districts. Due to funding limitations, this rate has only been fully implemented in eight districts (and partially implemented in another eight).
Beginning with its FY 1996 Defender Services appropriation request, the judiciary initiated an incremental, multi-year approach to increase gradually the hourly rates paid to panel attorneys. Under this plan, the in-court/out-of-court panel attorney hourly rates would be increased by $5 each year until a uniform rate of $75 is achieved. Consistent with this goal, the $60/$40 panel attorney hourly rates were increased to $65/$45, respectively, for work performed on or after January 1, 1996. In FY 1997 and FY 1998 the judiciary requested funding to increase the hourly rates by $5. Funding for these requests was denied by congressional appropriations committees in both years. Thus, most panel attorneys have had only a $5 increase in hourly rates in 12 years.
In denying the increase, Congress expressed concern about the increase in costs in the Defender Services program. However, as reported earlier, analysis performed by both the Administrative Office and Coopers & Lybrand shows that the increase in program costs is not attributable to non-capital panel attorney cases. The requested increase in panel attorney rates would only affect non-capital representations because the hourly rate for capital cases is set by statute at up to $125 and would not change as a result of this type of increase. Based on FY 1998 cost information to date, the FY 1998 non-capital panel attorney cost per representation is expected to remain stable and possibly decrease slightly. This environment provides the Congress with a unique opportunity to address federal judges' concerns about the quality of representation provided by panel attorneys by funding a rate increase for representation services in non-capital cases.
The American judicial system has withstood the test of time, earned respect at home and abroad, and is regarded as a model by emerging democracies around the globe. The federal courts have served the nation well because they are special purpose courts, designed and equipped to adjudicate small numbers of disputes involving important national and constitutional interests. Indeed, the vast majority of legal disputes are addressed by the state courts and extreme care should be taken to ensure that this delicate balance is not disturbed.
The federal courts strive to make the ideal of equal justice under law a reality. As guardians of the Constitution, federal judges throughout history, and sometimes at great personal sacrifice in the face of hostile disagreement by a majority of the local citizens, have enforced adherence to the law of the land. Federal judges have protected unpopular movements and individuals, and punished corruption that seemed immune from accountability under local laws.
In sum, the most pressing problem confronting the federal judiciary is to adjudicate, fairly and effectively, a significantly expanding docket. You can be certain that, should the increase in caseload and the trend toward federalization continue, every judge will continue to do his or her very best to meet the responsibilities of the federal judiciary. However, as we search for innovative ways to discharge those responsibilities and dispose of more and more cases, all of us--both Congress and the Courts--must give consideration to the quality and well as to the quantity of the justice being dispensed. Ultimately, to increase output, a judge must decrease the time that he or she spends on each case, and wile it is easy to measure the number of cases being decided, it is difficult, if not impossible, to measure the quality of the work or the quality of the justice being done in the process. We can only know that quality is decreasing in some proportion to the increase in output, but precisely because that phenomenon is not measured and reported in statistics, it is sometimes overlooked or forgotten. We must remember to guard against it.
I would be happy to answer any questions you have.
Judiciary
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