The Courts, Congress and the Executive Branch - Annual Report 2014

Legislation

Immigration Reform

Although the Judicial Conference did not take a position on the immigration reform legislation introduced during the 113th Congress, it did, in May 2013, express its concerns in letters to Senators Patrick Leahy (D-VT) and Charles E. Grassley (R-IA), chair and ranking members, respectively, of the Judiciary Committee. The legislation, if enacted, would have serious and broad resource implications on the federal courts. Without increased resources, the federal courts could not keep pace with the increased workload this legislation would create.

Cameras in the Courtroom

On December 3, 2014, Judge Julie A. Robinson testified at a House hearing on H.R. 917, the Sunshine in the Courtroom Act of 2013. The Judicial Conference is opposed to H.R. 917 and similar legislation that permit the electronic and broadcast coverage of federal court proceedings. Judge Robinson, as outgoing chair of the Judicial Conference Committee on Court Administration and Case Management, told the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet that “permitting cameras in the federal trial courts is not in the best interests of justice because doing so has the potential to impair substantially the fundamental right of citizens to a fair trial.”

Record Keeping

In the 113th Congress, legislation was introduced that would make a number of reforms to federal record-keeping procedures and requirements, among them changes that would improve the federal government’s ability to capture and archive electronic records. One bill, the Presidential and Federal Records Act, H.R. 1233, passed Congress and was enacted into law as Pub. Law No. 113-187. The law authorizes the Archivist to determine if recorded information, regardless of whether it exists in physical, digital, or electronic form, is a record, and that determination is binding on all federal agencies, including the Judiciary. This changes the current practice of collaboration between the National Archives and Records Administration (NARA) and the AO on matters of record keeping. Another bill, the Federal Records Accountability Act of 2014, H.R. 5170, passed the House but not the Senate. It also would have amended certain record-keeping processes for the Judiciary without providing for collaboration with the judicial branch.

The Judicial Conference did not take a position on either bill, but has, in the past, supported the collaborative relationship between the AO and NARA. AO Director Bates, acting in his capacity as Secretary of the Judicial Conference, sent a letter to House leadership expressing the Judicial Conference’s concerns with the two bills.

Equal Access to Justice Legislation

The Open Book on Equal Access to Justice Act, H.R. 2919, would have required the Chairman of the Administrative Conference of the United States (ACUS) to report to Congress annually on the amount of fees and other expenses awarded to prevailing parties other than the United States in certain administrative proceedings and civil court cases (excluding tort cases) to which the United States is a party, including settlement agreements, which includes sealed settlements. The bill, which failed to be enacted in the 113th Congress, also would have required the Director of the AO to provide the Chairman of the ACUS with all information requested to produce such reports.

The Judicial Conference has a long-standing position that any required reporting to Congress of attorney fees paid pursuant to the Equal Access to Justice Act (EAJA) be made by the government agencies paying such fees, rather than by the Director of the AO. Additionally, the Judicial Conference has a position opposing any legislation that would have the effect of requiring the federal courts to unseal or otherwise make public information that is meant to be confidential under a federal court order.

Financial Institution Bankruptcy Act

There has been much discussion over how to provide a bankruptcy process for insolvent financial institutions seen as systemically important to the health of the national economy.

In July 2014, the House Judiciary Committee released a discussion draft of the Financial Institution Bankruptcy Act of 2014 and then released a revised discussion draft in August 2014. The bill would set forth requirements and prohibitions regarding: commencement of a case concerning a covered financial corporation; a special trustee and bridge company; special transfer of the property estate in bankruptcy; treatment of qualified financial contracts and affiliate contracts; licenses, permits, and registrations; exemption from securities laws; and inapplicability of certain powers.

In September 2014, AO Director Bates, acting in his capacity as Secretary of the Judicial Conference, sent a letter to the chairman and ranking member of the House Judiciary Committee expressing concern over certain provisions contained in the August 2014 discussion draft.

The bill passed the House in December, but no action was taken either on it or on a similar Senate bill before the end of the 113th Congress.

Sentencing and Corrections Reforms

Legislative Actions: In Fiscal Year 2014, the Department of Justice (DOJ) and the Federal Bureau of Prisons (BOP) identified prison overcrowding as a significant management issue, and Congress considered several bills to reduce the number of federal prisoners.

Two bills with a potential impact on the federal prison population—and on the Judiciary— cleared the Senate Judiciary Committee, but neither came to the Senate floor.

• S. 1410, the Smarter Sentencing Act of 2014, would have, among other things, expanded ”safety valve” exceptions to mandatory minimum sentences, lowered mandatory minimum penalties in certain drug offenses, and made the Fair Sentencing Act (which lowered penalties for crack offenses) applicable to inmates sentenced before the Act went into effect. The Judicial Conference has long-standing positions opposing mandatory minimums and supporting their repeal.
• S. 1675, the Recidivism Reduction and Public Safety Act of 2014, would have required BOP to develop a dynamic risk/needs assessment, and to create a system of earned credits that inmates could use to shorten their time in prison, plus a notice and hearing procedure by which the sentencing court could prevent an inmate’s early release if it would jeopardize public safety. Inmates released early would be placed in home confinement or on a newly created term of “community supervision” and be supervised by probation officers while in BOP custody.

In September 2014, the Judicial Conference adopted the Criminal Law Committee recommendation that the Judicial Conference oppose those portions of S. 1675, or similar legislation, that would require Article III judges to exercise powers traditionally exercised by executive branch parole officials in deciding whether to allow a portion of a prison sentence to be served in the community.

U.S. Sentencing Commission Actions

In April 2014, the U.S. Sentencing Commission approved several proposed amendments to the U.S. Sentencing Guidelines Manual, including one that would lower by two levels the offense levels in the Drug Quantity Table, then sought public comment on whether the amendments should be applied retroactively.

The Judiciary expressed its concern about the impact the added workload would have on public safety and probation and pretrial services if the proposed amendment was approved. In the past 10 years, probation staffing has declined 5 percent, while the post-conviction supervision caseload rose 19 percent.

In June, Judge Irene Keeley, chair of the Judicial Conference Criminal Law Committee, testified at a Commission hearing in support of retroactivity, but only if the courts were authorized to begin accepting and granting petitions on November 1, 2014; any inmate who was granted a sentence reduction would not be eligible for release until May 1, 2015; and the Sentencing Commission helps coordinate a national training program that facilitates the development of procedures that conserve scarce Judiciary resources and promote public safety.

On July 18, 2014, in a unanimous 7-0 vote, the Commission decided that the amendment reducing the offense levels in the Drug Quantity Table by two levels would be applied retroactively. The Commission also determined that the effective date of retroactive application should be delayed beyond the seven months recommended by the Criminal Law Committee. Consequently, inmates granted a custody-term reduction based on retroactive application of the guideline amendment can be released no earlier than November 1, 2015.

The anticipated workload will impact judges, chambers staff, and federal public defender offices, but will especially impact probation officers, who will be charged with preparing retroactive resentencing reports for the courts and then supervising inmates who are released after sentence reduction. For more on the impact of recent criminal justice reform, visit the Probation Section of the 2014 Annual Report.

Task Force Urged to Curb Over-Federalization of Criminal Law

At a July hearing, Judge Irene Keeley, chair of the Judicial Conference Criminal Law Committee, told the House Judiciary Committee’s Over-Criminalization Task Force of 2014 that policy initiatives curbing over-federalization of criminal law, reforming mandatory minimum sentences, and amending the Sentencing Guidelines have the support of the Judicial Conference, but that the Judiciary currently lacks the resources to shoulder the increased workload that would result from large numbers of offenders being shifted from prison to supervision by probation officers. She urged Congress to review existing federal criminal statutes with the goal of eliminating provisions that no longer serve an essential federal purpose, and to use “sunset” provisions to require periodic reevaluation of laws. The Judicial Conference has long opposed the over-federalization of criminal law, which contributes to delay in the federal courts and overcrowding in federal prisons.