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The Courts and Congress – Annual Report 2018

Sentencing and Prison Reform 

After years of debate and negotiation in Congress, major criminal justice reform legislation was enacted. In December 2018, the president signed the First Step Act of 2018, which includes both sentencing and prison reform measures. The act reduces mandatory minimum sentences for prior drug convictions, broadens the safety valve that judges can use to gain more flexibility in cases involving mandatory minimum sentences, eliminates the practice of stacking weapons charges against drug offenders to create long prison terms, and makes retroactive the reforms enacted by the Fair Sentencing Act of 2010.

Regarding prison reform, the Bureau of Prisons is required to create a risk and needs assessment system and recidivism reduction programs, through which qualified prisoners can earn time toward early release in prerelease custody, to be served either in home confinement or at a residential reentry center. Consistent with Judicial Conference policy, judges are not involved in deciding whether a prisoner should be transferred to prerelease custody. The bureau may transfer a prisoner from prerelease custody to supervised release up to 12 months before the projected expiration of the prison sentence. The supervision of these offenders will become the responsibility of the federal Probation and Pretrial Services System.

Safeguarding Sensitive Financial Information

The Judiciary’s authority to redact from financial disclosure reports certain types of personal information that could endanger judges or their families was extended another 10 years, as part of the Consolidated Appropriations Act of 2018, which the president signed on March 23, 2018. The law creating redaction authority for the Judiciary expired on Dec. 31, 2017. Federal judges, the Administrative Office of the U.S. Courts (AO), and members of Congress had been working to secure an extension or permanent redaction authority. A bipartisan group of House Judiciary Committee members, including Representatives Hakeem Jeffries (D-NY), Darrell Issa (R-CA), and John Conyers (D-MI), sponsored legislation (H.R. 3229) for a 10-year extension that passed the House. Senators Ron Johnson (R-WI) and Claire McCaskill (D-MO) sponsored a bill in the Senate (S. 1584) to grant the Judiciary permanent redaction authority, but the Senate ultimately passed the House version in the consolidated appropriations legislation.

All Circuit Review

The president in July 2018 signed into law the All Circuit Review Act, which allows decisions by the Merit Systems Protection Board to be appealed either in the Federal Circuit or in the appropriate regional circuit court. The law is intended to bolster the Whistleblower Protection Act, which prohibits federal agencies from punishing employees who expose violations of law, gross mismanagement or waste, abuse of authority, or dangers to health and safety. Sponsors of the legislation wanted to address what they believed was a tendency to narrow protections of whistleblowers under the current system.

POWER Act

In September 2018, the president signed legislation passed by Congress that requires the courts to hold at least one public event each year to promote pro bono legal services for survivors of domestic violence. The courts also are required to report annually on the events they hold. The Pro bono Work to Empower and Represent (POWER) Act of 2018 (S. 717) provided no additional funding to comply with the act. James C. Duff, Director of the AO, wrote to Senate Judiciary Committee leaders expressing concern about the legislation. He noted that it imposed an unfunded mandate on the courts and that it would not produce an appreciable increase in pro bono legal services for domestic violence victims because the overwhelming majority of the cases, and related civil actions for restraining orders, are handled in state, not federal, courts.

As originally passed in the Senate in August 2017, the bill applied to the Department of Justice (DOJ), not the Judiciary.  On July 17, 2018, the House passed the bill with a last-minute floor amendment, later also adopted by the Senate, transferring the mandates from the Justice Department to the Judiciary.

The bill requires the chief judge in each judicial district to “lead not less than one public event” promoting pro bono legal services for survivors of domestic violence, dating violence, sexual assault, and stalking.  Chief judges whose districts include tribal country must host another such event biennially “in partnership with an Indian tribe or tribal organization.” The AO director must submit an annual report to Congress with a summary of each event including “an analysis of how each public event meets the goals set forth in this act, as well as suggestions on how to improve future public events.”

AO Director Duff raised serious concerns about the legislation with Congress as soon as the Judiciary became aware that the bill had been altered to apply its unfunded mandates to judges rather than DOJ officials. However, no amendments were made to the bill as a result.

Judiciary ROOM Act

In September 2018, the House Judiciary Committee approved legislation that contained 10 separate provisions with impact on the federal Judiciary. No hearings were conducted on the bill, H.R. 6755, called the Judiciary Reforms, Organization, and Operational Modernization Act of 2018 (ROOM Act).

The ROOM Act would direct the Judicial Conference to issue a code of conduct for Supreme Court justices and federal judges. (There already is a code of conduct in place for federal judges, which Supreme Court justices adhere to.) Another provision would require federal judges and justices to undergo medical examinations and doctors to submit any pertinent health conditions to the appropriate chief judge. The bill also would mandate video streaming of appellate court proceedings and require written opinions by federal courts to be available on the Judiciary’s Public Access to Court Electronic Records (PACER) electronic case management system.

AO Director Duff raised concerns with congressional leaders about both the provisions in the bill and the manner in which the bill was moved through Congress, with no advance notice and with no realistic opportunity for the Judiciary to express its views prior to markup. The bill had not been taken up by either the House or the Senate at the conclusion of the lame duck session of the 115th Congress in late 2018.

Ninth Circuit Boundaries 

Legislation was introduced in the House to modify the structure of the Ninth Circuit by establishing four divisions within the circuit and creating five additional circuit judgeships. Some members of Congress have argued that the circuit should be reorganized because of its geographic size, administrative demands, and case management burdens. The Judicial Conference has not taken a position either endorsing or opposing the legislation, but has said it would oppose restructuring if it were inadequately funded. The bill was passed by the House Judiciary Committee but was not acted on in committee in the Senate.

Congressional Hearings

In June 2018, representatives of the Judicial Conference told a House subcommittee that the need for new judgeships was affecting the work of courts across the country and had reached “urgent levels” in some districts. The hearing, titled “Examining the Need for New Federal Judges,” was held by the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet. Testifying on behalf of the Conference were Chief Judge Lawrence Stengel, chair of the Judicial Resources Committee; Judge Roslynn Mauskopf, chair of the Judicial Statistics Subcommittee; and Judge Dana Sabraw, a district court judge in Southern California.       

“The lack of additional judgeships, combined with the growth in caseload, has created difficulties for many courts across the nation,” Stengel testified. “It has reached urgent levels in five districts that are struggling with extraordinarily high and sustained workload,” he said in prepared testimony. The courts cited were: the Eastern District of California, the District of Delaware, the Southern District of Florida, the Southern District of Indiana, and the Western District of Texas.

The Judicial Conference every two years conducts a survey of the judgeship needs of the U.S. courts of appeals and district courts. Based on the latest survey, the Conference in 2017 recommended that Congress create five new judgeships in one court of appeals and 52 new judgeships in 23 district courts. The Conference also recommended that eight existing temporary judgeships be converted to permanent status. Since the last comprehensive judgeship bill was enacted in 1990, the numbers of cases filed in the appellate and district courts have grown by 40 percent and 38 percent, respectively.

In another congressional hearing affecting the Judiciary, the Senate Judiciary Committee’s Subcommittee on Oversight, Agency Action, Federal Rights, and Federal Courts held a hearing in July 2018, titled “Oversight of the Structure of the Federal Courts.” The Judicial Conference was not invited to provide a witness, but was permitted to present a written statement. Both Stengel and Mauskopf submitted statements on the Judiciary’s judgeship needs.

The oral testimony at the hearing focused primarily on a proposed split and restructuring of the Ninth Circuit. Witnesses were Senior Judge Diarmuid F. O’Scannlain, of the Ninth Circuit, on his own behalf; Professor Brian T. Fitzpatrick, Vanderbilt Law School; and Professor Lori A. Ringhand, University of Georgia School of Law. Also, Chief Judge Sidney R. Thomas, Judge Carlos T. Bea, and Senior Judge Mary M. Schroeder, all from the Ninth Circuit, submitted written statements.

In June 2018, the Senate Judiciary Committee held a hearing on the report of the Federal Judiciary Workplace Conduct Working Group, a body of judges and senior Judiciary officials established by the director of the AO at the request of the Chief Justice. The report contained recommendations to the Judicial Conference for changes to the Judiciary’s workplace conduct policies and procedures. AO Director Duff testified at the hearing, outlining the Working Group’s recommendations and sharing some of the positive feedback the group had received from the co-authors of an Equal Employment Opportunity Commission study on workplace conduct, which guided the Working Group’s work, and also from four employee organizations: the Federal Court Clerks Association, the National Conference of Bankruptcy Clerks, the Federal Judicial Assistants Association, and the Association of Bankruptcy Judicial Assistants. Chief Judge Julie A. Robinson, of the District of Kansas, who served on the Working Group, accompanied Duff to the hearing. Duff told the senators, “We remain committed to ensuring an exemplary workplace for every judge and court employee, and believe that the report of the Working Group is a significant and meaningful step toward achieving our goal.”