THIRDNewsletter

of the

Federal

Courts

Vol. 38

Number 3

March 2006BRANCH

INSIDE

THE

See LRM Resolution on page 3

FY 2005 Caseload Reported .....................................................pg. 5Calling for Jurors Post Katrina ...............................................pg. 7Millions Credited in Rent Validation ...................................pg. 9 See Rent on page 2

Senator Specter Acts to Provide Rent Relief for Judiciary

The chair of the Senate Judiciary Committee, Senator Arlen Specter (R-PA), has introduced legislation to prohibit the General Services Admin-istration from charging the federal Judiciary rent in excess of the actual costs incurred by GSA to maintain and operate federal court buildings.

Saying the GSA uses the Judiciary as a profi t center, Senator Specter introduced a bill similar to one intro-duced by Representative F. James Sensenbrenner (R-WI ) last month in the House (HR 4710), known as

Senator Arlen Specter (R-PA)

Retiring AO Director Lauded by Conference

2

Rent continued from page 1

The Third Branch March 2006

the Judiciary Rent Reform Act. The bills have minor differences but are similar on the fundamental point of relieving the courts of the burden of paying GSA “commercially equiva-lent” rent.

S. 2292, co-sponsored by Senators Patrick Leahy (D-VT), John Cornyn (R-TX), Saxby Chambliss (R-GA), and Dianne Feinstein (D-CA), would prohibit the GSA from collecting from the Judiciary rent that involves the recovery of any prior capital expenditure. It would also bar GSA from collecting for any commer-cially equivalent rent charge that GSA does not itself incur, such as real estate taxes on federally-owned buildings. A means for repayment by the judicial branch of the cost of future repair and alteration projects performed by GSA would be agreed upon by the Administrative Offi ce and the GSA.

“The Judiciary paid $926 million to GSA in fi scal year 2005,” said

Specter, “but GSA’s actual cost of providing space to the Judiciary was only $426 million, a difference of $500 million.” In his 2005 Year End Report on the Federal Judiciary, Chief Justice John G. Roberts, Jr. blamed escalating rents and across-the-board cuts imposed during fi scal years 2004 and 2005 for a reduction of approximately 1,500 judicial branch employees as of mid-December when compared to October 2003.

Although the FY 2006 appro-priation provides the Judiciary an increase over FY 2005, Roberts said, “the Judiciary must still fi nd a long-term solution to the problem of ever-increasing rent payments that drain resources needed for the courts to fulfi ll their vital mission.”

In a Senate fl oor statement the day after Specter introduced S. 2292, Leahy referred to a May 2005 letter sent by 11 Judiciary Committee senators to GSA asking it to exempt the judicial branch from all rental payments except those required to

operate and maintain federal court buildings and related costs.

“GSA’s response,” Leahy said, “has not been adequate. As set forth in that letter, the excessive rent paid by the Judiciary will exacerbate severe personnel shortages by forcing more cuts and could also have impacts on courthouse security. The rent relief provided in this bill will help ensure that the Judiciary continues to have the tools it needs to carry out its unique and vital function.”

In support of S. 2292, Cornyn said in a Senate fl oor statement he believes the current budgetary problems caused by the Judiciary’s rental payments, constitute a near crisis in the federal Judiciary. “I believe that the courts are doing everything they possibly can to contain their costs without adversely affecting the admin-istration of justice,” he said.

Conference Supports Shift in Responsibility for CourthousesAt its biannual meeting this

month, the Judicial Conference affi rmed its continued support for legislation that would let the Judi-ciary assume responsibility from the General Services Administration (GSA) for the management, opera-tion, repair, leasing and construction of federal courthouses.

The Conference vote was sparked by a committee report noting that in recent years “courthouse funding has fl uctuated, frustrations with the dependent relationship with GSA have increased, and rental costs have grown to over $920 million in 2005.” That dollar fi gure represents about 20 percent of the Judiciary’s oper-ating budget. Most executive branch agencies pay less than 1 percent of their budget for rent.

The Conference fi rst approved asking Congress to remove real prop-erty authority for the courts from GSA in 1989, but interest in such legislation declined until the late 1990s.Voting on a recommendation from its Space and Facilities Committee, the Conference re-affi rmed its earlier position, and left “the timing of seeking and imple-menting such authority” to its Execu-tive Committee, in consultation with the Space and Facilities and Budget Committees.

The committee report accompa-nying the recommendation said the proposed shift would allow the Judi-ciary to assume responsibility for 40 million square feet of buildings.

“The Judiciary could take over responsibility for new courthouse construction for $300 million per

year, repairs and alterations for $150 million per year, as well as all oper-ating and leased space rental costs,” the report said. The plan is expected to result in signifi cant savings over what the Judiciary currently pays GSA for rent.

In related action, the Conference approved, in concept, establishment of an annual budget cap for space rental costs. Those caps would be determined by its Judicial Confer-ence Budget Committee, in consulta-tion with the Conference Committee on Space and Facilities.

A Budget Committee report that accompanied its recommendation said the budget rent cap would cover courthouse construction, minor alter-ation projects, and additional space acquisitions.

3

Judicial Conference Recognizes Director’s Service to Judiciary In a resolution presented by Chief Justice John G. Roberts, Jr., the Judicial Conference recognized “with appreciation, admira-

tion and respect” the service of Leonidas Ralph Mecham as Director of the Administrative Offi ce of the U.S. Courts. Mecham has served under three chief justices and for more than 20 years as the Administrative Offi ce’s director, earning him the distinction of serving longer than any previous director in the agency’s history. The resolution read, in part:

“Under Ralph Mecham’s steward-ship, the federal court system has fl ourished. Ralph Mecham has focused on enhancing support to the Judicial Conference and its commit-tees, building relationships, and providing excellent services to judges and the courts. He has also promoted effectiveness and achievement in all Judiciary programs. Ralph Mecham’s acumen for legislative affairs greatly strengthened the Judiciary’s ability to communicate its budgetary and legis-lative needs to Congress and the exec-utive branch. His success in securing adequate resources for the Judiciary in tight budgetary climates enabled federal courts to maintain high stan-dards of service to the public while carrying out the Judiciary’s critical

mission. He tirelessly pursued increases in judges’ and court execu-tives’ pay and enhancements of bene-fi ts to ensure that the federal Judiciary can recruit and retain the best people. He created a program that enabled the Judiciary to obtain funding for new courthouses to replace aging, unsafe facilities, and he pushed to enhance judicial security.

Ralph Mecham has endeavored to reach out across the judicial family to build strong relationships and seek broad input. He championed innovations that have revolutionized court administration. His initiative to decentralize fi nancial and manage-ment responsibilities to the courts provided judges and court managers with the fl exibility they needed

to address their unique require-ments and priorities, and enhanced accountability and effectiveness. Recognizing early the potential bene-fi ts of new technologies, he trans-formed court operations through the deployment of a data commu-nications network and numerous systems.

Ralph Mecham’s visionary leader-ship, deep devotion to the indepen-dence and integrity of the federal Judiciary, and unfl agging spirit, drive and determination have left an enduring legacy for federal judicial administration. A man of remarkable intelligence and good humor, he has inspired others to accomplish a great deal, as well.”

The Third Branch March 2006

In other action, the Conference also approved four security-related recommendations. It voted to:

$ Authorize the placement of security screening equipment and contract security guards at leased facilities housing federal probation and pretrial services offi ces. About 50 such offi ces nationwide are in leased space, not federal courthouses.

$ Urge the U.S. Marshals Service (USMS) to provide more frequent training for deputy marshals and judicial security inspectors responsible for secu-rity surveys of judges’ homes, and more training in how to pro-vide an effective security detail.

$ Encourage each newly appointed federal judge to com-plete a Judicial Personnel Profi le

and to periodically update the information as requested by the USMS, and request that the USMS ensure the security of such information.

$ Urge the U.S. Bureau of Prisons to adopt a policy that requires screening, but not reading, of all outgoing mail to judges and courts from inmates incarcerated in a U.S. penitentiary or other high-security federal correctional institution.

$ Amend its policy delegating authority to the director of the Administrative Offi ce to waive fees in times of natural disasters. As amended, the authority includes the director’s ability, acting on a request from a chief judge, to grant waivers of certain and specifi ed miscellaneous fees,

excluding fi ling fees, when emergency conditions are present. The duration of such authority shall not exceed one year.

$ Amend regulations for the selection, appointment, and reappointment of U.S. bankruptcy judges to make publication of judicial vacancy announcements through print advertisements in local newspapers optional, rather than required, and to permit electronic publication of those announcements.

4The Third Branch March 2006

Judiciary Honors Mecham

The Great Hall of the Supreme Court was the setting for a Judicial Conference dinner honoring retiring Administrative Offi ce Direc-tor Leonidas Ralph Mecham. Members of Mecham’s family, friends including Senators Orrin Hatch and Robert F. Bennett, several Supreme Court justices, and members of the Judicial Conference attended.

Leonidas Ralph Mecham, Director of the Administrative Offi ce of the U.S. Courts.

Chief Judge Thomas F. Hogan, chair of the Conference Executive Committee, presented Mecham and his wife Barbara with a remem-brance from the committee.

Chief Justice John G. Roberts, Jr. presented the Judicial Conference res-olution honoring AO Director Leonidas Ralph Mecham, and lauded Mecham’s contributions to the federal courts. Roberts said, “it has been extraordinarily helpful to me in getting started in my position to have Ralph Mecham and his decades of experience there at my side to call on during the period in which everything is new for me.”

Circuit Executive for the 11th Circuit Norman E. Zoller, on behalf of the Circuit Executives, gave Mecham a memento of his years of service.

52001 2004 2005

Prisoner Petition Criminal

0

5,000

10,000

15,000

20,000

Administrative Agency

OriginalProceedings

AllOther

See Caseloads on page 6

The Third Branch March 2006

The increase for FY 2005 was due to upswings in criminal appeals, administrative agency appeals, orig-inal proceedings, and prisoner peti-tions. The overall increase might have been greater if the Fifth Circuit had not been affected by Hurricane Katrina. Only 92 appeals were fi led in the Fifth Circuit in the month of September 2005; the normal monthly caseload in that circuit is between 700 and 1,000 fi lings.

Criminal appeals jumped 28 percent in FY 2005 to 16,060, with growth in cases related to nearly all types of crimes. The most signifi cant increases were in appeals related to drug offenses (up 31 percent to 6,099); immigration (up 55 percent to 2,896); fi rearms and explosives (up 23 percent to 2,505); and property (up 15 percent to 1,967).

Administrative agency appeals grew 12 percent to 13,713, primarily due to challenges to Bureau of Immi-gration Appeals (BIA) decisions, which increased 14 percent to 12,349. In FY 2005, most BIA appeals were fi led in the Ninth Circuit (53 percent) and the Second Circuit (21 percent).

Original proceedings climbed 23 percent to 5,017 as state and federal

prisoners fi led 3,617 second or successive motions for permission to fi le habeas corpus petitions (up 42 percent) following the Supreme Court’s decisions in Blakely v. Wash-ington and U.S. v. Booker.

Civil appeals remained rela-tively stable, declining 1 percent to 32,818. A 3 percent rise in

Legal Decisions, Legislation & Forces of Nature Infl uence Federal Court Caseload in FY 2005

In fi scal year 2005, the workload of the federal Judiciary was affected in part by Supreme Court deci-sions, new legislation, and a force of nature. Filings of appeals and bankruptcy petitions reached record highs, while civil and criminal fi lings in the U.S. district courts declined.

Caseload statistics of the federal courts are compiled by the Admin-istrative Offi ce. Statistics for FY 2005 and previous years can be found on the Judiciary’s website in the 2005 Judicial Business of the United States Courts at http://www.uscourts.gov/judbususc/judbus.html.

U.S. Courts of AppealsFor the tenth consecutive record-

breaking year, fi lings in the 12 regional courts of appeals rose 9 percent to an all-time high of 68,473.

prisoner petitions (up 473 petitions) was more than offset by a 4 percent reduction in other civil appeals. Appeals of federal civil cases grew 12 percent to 9,229 primarily because of a 41 percent jump to 3,709 in motions to vacate sentence fi led by federal prisoners in response to the Booker decision. Prisoner civil rights cases grew 6 percent to 3,083 as a result of increased fi lings by both federal and state prisoners. Bankruptcy appeals totaled 865 (up 3 appeals).

U.S. District CourtsCivil Filings

Civil fi lings fell 10 percent to 253,273 in FY 2005.

The decrease in fi lings was largely the result of a 16 percent drop (down 26,545) in federal question fi lings in a single jurisdiction. In FY 2004, the District of South Carolina received more than 19,000 cases addressing personal property fi nancial invest-ments related to one bankruptcy case; only 27 such cases were fi led there in 2005.

An 8 percent drop in diversity of citizenship fi lings, (down 5,433 cases) also contributed to the decline in civil fi lings.

Filings with the U.S. as plaintiff or defendant rose 8 percent (up 3,924 cases) to 52,386. Cases with the U.S. as defendant climbed 9 percent, as prisoner petitions jumped 29 percent (up 4,102 petitions). A 45 percent surge in motions to vacate sentence (up 3,224 petitions) and a 15 percent increase in federal habeas corpus prisoner petitions (up 760 peti-tions) contributed signifi cantly to the growth in prisoner petitions. This rise can be attributed at least in part to the Booker decision.

Hurricane Katrina also affected fi lings. Civil fi lings for the month of September 2005 fell 29 percent in the Southern District of Mississippi, and 7 percent in the Eastern District

Appeals Filed By Type of Appeal

6

of Texas, compared to fi lings for the month of September 2004.

Criminal FilingsNationwide, criminal fi lings in the

U.S. district courts fell 2 percent to 69,575 in FY 2005, and the number of defendants in these cases dropped 1 percent to 92,226.

Despite the overall decline, increases occurred in cases involving drugs other than marijuana, sex offenses, and immigration offenses.

The largest numeric increase in FY 2005 was in non-marijuana drug cases, which rose 5 percent to 13,102, as the number of defen-dants in those cases climbed 6 percent to 25,121. Immigra-tion fi lings grew less than 1 percent to record highs of 17,134 cases and 18,322 defen-dants. Charges of improper reentry by an alien accounted for 68 percent of all

immigration cases and 64 percent of immigration defendants. Sex offense fi lings climbed 9 percent to 1,779 cases, with the number of defen-dants climbing 8 percent to 1,828. The increase in sex offense fi lings stemmed primarily from growth in sexually explicit material cases and defendants, which both rose 18 percent to 1,102 cases and 1,112 defendants.

Firearms and explosives cases and defendants both fell 4 percent to 9,207 cases and 10,328 defendants. Fraud cases rose 1 percent; defen-dants charged with fraud declined 1 percent. A 61 percent increase in the totals was reported for identifi cation document and information fraud, which grew to 1,069 cases and 1,388 defendants.

Traffi c offenses on federal grounds dropped 10 percent to 4,140 cases and 4,142 defendants.

U.S. Bankruptcy CourtsBankruptcy fi lings in the federal

courts climbed 10 percent to 1,782,643, for a new record in FY 2005. The increase occurred largely in response to the passage of the Bankruptcy Abuse Prevention and

Consumer Protection Action of 2005. Many debtors rushed to fi le petitions before the law’s general effective date of October 17, 2005. The number of petitions fi led during the three-month period ending September 30, 2005, was 542,002, an increase of 37 percent over the number fi led during the same period one year earlier —and the highest number fi led in U.S. bankruptcy courts in any three-month period.

In FY 2005, Chapter 7 fi lings rose 17 percent to 1,346,201 and constituted 76 percent of all peti-tions fi led. In the fi nal quarter of FY 2005, Chapter 7 petitions jumped 54 percent over the number fi led during the fi nal quarter of FY 2004. In FY 2005, Chapter 11 petitions fell 36 percent to 6,637. Chapter 12 fi lings increased 53 percent to 364. Chapter 13 fi lings, which accounted for 24 percent of all new petitions, fell 6 percent to 429,316.

Nonbusiness fi lings, which account for 98 percent of all fi lings, increased 10 percent to 1,748,421. Business fi lings decreased 2 percent to 34,222 during FY 2005.

2001 2002 2003 2004 20050

10,000

20,000

30,000

40,000

50,000

60,000

70,000

80,000

Prisoner Petitions Personal Injury/Product Liabilty

Labor Law Civil Rights

Protected Property Rights

2001 2002 2003 2004 20050

10,000

20,000

30,000

40,000

50,000

60,000

70,000

80,000

Other Criminal Drugs

Immigration Firearms and Explosives

2001 2002 2003 2004 20050

500,000

1,000,000

1,500,000

2,000,000

Chapter 7 Chapter 13

All Other

In-Depth continued from page 3

See Caseloads on page 12

The Third Branch March 2006

Civil Cases Filed

Criminal Cases Filed,by Offense

(Excluding Transfers)

Bankruptcy Petitions Filed

7The Third Branch March 2006

Calling for Jurors Post-Katrina

Six months after last year’s destructive hurricane season, district courts in Louisiana and Mississippi are adapting to their post-Katrina world as they begin to hold trials once again.

Amazingly, considering the devas-tation around it, the district court in New Orleans was able to empanel grand juries in December and February and hold jury trials in January.

In fact, one of the fi rst things Jury Administrator Marianne Judice did on returning to the Eastern District of Louisiana in early November, was mail out 14,000 juror questionnaires to add to the court’s qualifi ed wheel of jurors.

According to Judice, the district court usually calls up 75 jurors to empanel a grand jury. Post-Katrina, they’re calling 250 prospective jurors, 120 of whom might actually appear. Normally, the district has a 10-15 percent no-show rate. “We’re calling a few more jurors than normal,” said Chief Deputy Clerk of Court Gene Smith, “but we’re getting a response suffi cient to hold grand jury and petit juries.”

One reason the district may still be able to gather jurors is that while New Orleans is the largest parish, it is one of 13 different parishes from which the court may call jurors. That’s not to say New Orleans resi-dents aren’t being called.

“We had a gentleman from New Orleans called for jury duty, in fact a maintenance employee of the City of New Orleans, who is living on one of the cruise ships docked here for those left homeless,” says Judice. “He still showed up for jury service. I felt like giving him a special award.”

Right now, the biggest problem is the mail.

“Our December 6th mail just

arrived!” said Judice. “Before the main post offi ce in New Orleans re-opened a few weeks ago, the mail was being re-routed through Baton Rouge, Houston, returned to Baton Rouge, then on to St. Rose, Louisiana, and it created enormous delays. Of all the issues we’ve had, the greatest challenge has been who is actually getting their mail.”

Still, somehow, the mail is going through. Judice tells of phone calls as jury questionnaires, summonses, and notices reached evacuated resi-dents as far away as Baltimore, Pitts-burgh, California, and Oregon.

“I don’t know how to explain it,” she says, “but people are getting the questionnaires and jury summonses, even if it takes weeks to get the mail. Then they contact the court with their current whereabouts.”

“The city is still a nightmare,” says Smith, whose own home remains without electricity. “We were fortunate that the courthouse was in an area of the city with little damage.” The federal courthouse has even been able to help out the New Orleans criminal court, whose bottom fl oor was fl ooded and must be rewired. The criminal court began jury trials at the U.S. Courthouse in March.

In the Middle District of Loui-siana, jury administrator Rhonda Martin is seeing more people asking to be excused from jury duty, mainly for hardships.

“These are people who are helping out in the disaster areas, people who have been transferred to work elsewhere or who had found permanent residences elsewhere,” says Martin. “Workplaces are oper-ating without their full staff or have extra work as a result of Katrina. All of these things put an extra burden upon employers and they fi nd it almost impossible to do without an employee for jury duty.”

The rippling effect of disasters of the magnitude of Hurricanes Katrina and Rita does not end when

the storm ends. “Everyone’s life has been affected by additional worries and responsibilities,” says Martin. “We must be compassionate, but fi nd ways to get the job done everywhere. . . and that includes making sure the court still operates smoothly and in a timely manner.”

In the Southern District of Missis-sippi, the Gulfport courthouse, damaged by storm-driven water, remains closed until June or July 2006. Juries are being empanelled in the district’s other divisions, according to Clerk of Court J.T. Noblin. He antici-pates that once they are back in the Gulfport courthouse, a greater-than-normal volume of questionnaires will be sent to prospective jurors.

“Although state court jury admin-istration differs somewhat from the federal system,” Noblin says, “the preliminary state court experi-ence in the area has been instruc-tive for the federal court, when trials resume. Other than in criminal cases, however, there doesn’t seem to be a great rush to go to trial. Lawyers and parties seem content to catch their breath,” Noblin observed.

“Based on what we have seen thus far, we are cautiously optimistic that in June, when the courthouse is scheduled to reopen, we will have a pretty predictable juror response. Of course,” Noblin concluded, “summer starts hurricane season. We’ll see.”

8

THE

THIRD BRANCH

Published monthly by theAdministrative Offi ce of the U.S. Courts

Offi ce of Public AffairsOne Columbus Circle, N.E.

Washington, D.C. 20544(202) 502-2600

Visit our Internet site athttp://www.uscourts.gov

DIRECTORLeonidas Ralph Mecham

EDITOR-IN-CHIEFDavid A. Sellers

MANAGING EDITORKaren E. Redmond

PRODUCTIONLinda Stanton

CONTRIBUTORDick Carelli

Please direct all inquiries and address changes to The Third Branch at the above address or to Karen_Redmond@ao.uscourts.gov.

JUDICIAL BOXSCORE

J U D I C I A L M I L E S T O N E S

As of March 1, 2006

Courts of Appeals Vacancies 18

Nominees 9

District Courts Vacancies 35

Nominees 18

Courts of International Trade Vacancies 1 Nominees 1

Courts with “Judicial Emergencies” 22

For more information on vacancies in the federal Judiciary, visit our website at www.uscourts.gov under Newsroom.

Appointed: Timothy Burgess, as U.S. District Judge, U.S. District Court for the District of Alaska, January 23.

Appointed: Eric N. Vitaliano, as U.S. District Judge, U.S. District Court for the Eastern District of New York, February 8.

Appointed: Richard E. Fehling, as U.S. Bankruptcy Judge, U.S. Bank-ruptcy Court for the Eastern District of Pennsylvania, February 14.

Appointed: Eric L. Frank, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Eastern District of Pennsylvania, February 14.

Appointed: Laurel Myerson Isicoff, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Southern District of Florida, February 13.

Appointed: Richard M. Neiter, as U.S. Bankruptcy Judge, U.S. Bank-ruptcy Court for the Central District of California, February 18.

Appointed: John Karl Olson, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Southern District of Florida, February 10.

Appointed: James Jack Robinson, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Northern District of Alabama, February 16.

Appointed: Christopher S. Sontchi, as U.S. Bankruptcy Judge, U.S. Bank-ruptcy Court for the District of Dela-ware, February 23.

Appointed: Michael E. Hegarty, as U.S. Magistrate Judge, U.S. District Court for the District of Colorado, February 15.

Appointed: Timothy S. Hillman, as U.S. Magistrate Judge, U.S. District Court for the District of Massachu-setts, February 13.

Appointed: Ramon E. Reyes, Jr., as U.S. Magistrate Judge, U.S. District Court for the Eastern District of New York, February 13.

Appointed: A. Kathleen Tomlinson, U.S. Magistrate Judge, U.S. District Court for the Eastern District of New York, February 24.

Appointed: Paul M. Warner, as U.S. Magistrate Judge, U.S. District Court for the District of Utah, February 19.

Senior Status: U.S. Court of Appeals Judge Raymond C. Clevenger, III, U.S. Court of Appeals for the Federal Circuit, February 1.

Senior Status: U.S. District Judge William Henry Barbour, Jr., U.S. District Court for the Southern District of Mississippi, February 4.

Senior Status: U.S. District Judge Frederick J. Scullin, Jr., U.S. District Court for the Northern District of New York, March 13.

Senior Status: U.S. District Judge Lesley Brooks Wells, U.S. District Court for the Northern District of Ohio, February 14.

Elevated: U.S. District Judge Norman A. Mordue, to Chief Judge, U.S. District Court for the Northern District of New York, succeeding U.S. District Judge Frederick J. Scullin, Jr., March 14.

Elevated: U.S. Bankruptcy Judge Mark B. McFeeley, to Chief Bank-ruptcy Judge, U.S. Bankruptcy Court for the District of New Mexico, succeeding U.S. Bankruptcy Judge James S. Starzynski, January 1.

Elevated: U.S. Bankruptcy Judge Elizabeth L. Perris, to Chief Bank-ruptcy Judge, U.S. Bankruptcy Court for the District of Oregon, succeeding U.S. Bankruptcy Judge Albert E. Radcliffe, October 1, 2005.

Elevated: U.S. Bankruptcy Judge John E. Waites, to Chief Bankruptcy Judge, U.S. Bankruptcy Court for the District of South Carolina, succeeding U.S. Bankruptcy Judge William Thur-mond Bishop, March 1.

The Third Branch March 2006

For additional March milestones, visit The Third Branch on-line at www.uscourts.gov

9See Rent Questions on page 12

The Third Branch March 2006

Rent Questions Raised, Millions Credited

If you’re a business with revenue problems and your landlord hikes the rent—again—you either fi nd a less expensive location or re-nego-tiate the lease. But if you’re a federal court with funding problems and the General Services Administration (GSA) increases your rent, you pay the increase. Chief Judge Frederick J. Scullin, Jr. in the Northern District of New York looked at his rent and asked why. Now, thanks to his efforts and those of his staff, their rent bill is reduced, the Judiciary is looking at considerable savings, and other courts are hoping to follow their lead. [See related cover story on rent relief legislation.]

Rent payments to GSA from the courts’ operating account have grown from $133 million in 1986 to an estimated $965 million in FY 2006. By FY 2009, the rent bill to GSA will be about $1.1 billion, or nearly one-fi fth of the courts’ projected oper-ating budget. Under current law, the Judiciary must pay rent to GSA in full as a mandatory charge against its budget. With increasingly tight budgets, that means less money for discretionary expenses, such as staff salaries.

“When a quarter of our budget is spent on rent and we’re looking at cutting staff so we can pay the rent, then we have to ask, what are we paying for?” said Scullin. GSA sets the rent for court facilities, but Scullin and his staff were not quite sure how it arrived at the rates. He thought it was time to fi nd out. Northern District of New York Clerk of Court Larry Baerman with Chief Deputy John Domurad were given the task.

“We had to ask why, for example, the Syracuse courthouse was paying $30.87 per usable square foot,” said Baerman, “while the federal

defender and probation offi ces were paying $16.07 per usable square foot—for better space, especially when other federal agencies in Syra-cuse in commercially-leased space were paying approximately $15.73 per usable square foot. We wanted to get to the bottom of such a disparity among rents.”

By law, GSA is required to charge a rent rate that approximates commercial charges for comparable space and services.

“Our fi rst thought,” said Domurad, “was that the numbers were wrong because GSA had over-assessed the market rate. However, as we delved deeper into the issue, we realized that a critical compo-nent to our over-assessment was GSA’s methodology for determining a tenant’s pro rata share of the common area of a building. ”

Baerman and Domurad began looking at courthouse fl oor plans and physically inspected areas within Northern District facilities they never knew existed. This inves-tigation led to some startling discov-eries. For example, in their Utica facility, a recent remeasurement of the building included over 15,000 square feet of “common space” that was actually an attic, which could only be accessed by a ladder through the ceiling.

“While the fi gures from the remeasurement survey had not yet been billed to the court, it is far from certain that this ‘oversight’ would have been corrected without the review,” said Domurad.

They reviewed commercial leases from other federal agencies within the respective areas to determine how the commercially charged market rate differed from what was being assessed within the federally owned facilities. With the assistance of the Administrative Offi ce, they hired an appraiser from a national company to provide them with a professional assessment of the market rates for areas in which their

four facilities are located. The Northern District of New

York’s efforts have paid off. Following an informal presentation by Baerman and Domurad to central GSA personnel, GSA reviewed the district’s billing records and deter-mined that an annualized rent reduc-tion of nearly $1 million was in order.

“To reinforce the fact that the rent disparity we were seeing within the Northern District of New York wasn’t an isolated event, our presen-tation briefl y discussed GSA’s billing rates for several facilities within the Southern District of New York,” said Domurad. As a result of this inquiry, GSA re-evaluated the billing information for two facilities in the Southern District, which resulted in a savings or cost avoidance over three fi scal years totaling $30 million.

While the money is signifi cant, Domurad is looking at larger conse-quences. “From the very inception of this project, our Chief Judge has been adamant that the goal of this project was not to simply establish fair and reasonable rent rates within the Northern District of New York. The true value of this success is that it validates a methodology that can be employed nationwide to analyze and identify potential areas where the courts may be charged rent above the commercially accepted rates.”

Said Scullin, “I hope a similar review of court-occupied space is conducted on a national level to determine whether cost savings can be identifi ed elsewhere.”

Such a review is currently underway. “The Northern District of New York may be a worst-case scenario,” said Debra Worley, Chief of Space and Facilities, Offi ce of Facilities and Security at the Admin-istrative Offi ce, “and variations may well refl ect differences between GSA regions and how standards are applied. But, we believe there may be problems with classifi cation of

10

I N T E R V I E WI N T E R V I E W

Director Addresses Change Within BOP

Harley G. Lappin was appointed Director of the Bureau of Prisons (BOP) in 2003. Lappin joined the BOP in 1985, and was formerly Regional Director for the Mid-Atlantic Region.

Q:Like the Judiciary, the Bureau of Prisons is dealing with a

limited budget. What is the BOP doing to stay within budget? Are these reductions likely to impact the Judiciary?

A:For the last several years, the Bureau has been working with

constrained budgets. In addition to taking measures to reduce normal operating costs (e.g., reducing travel and purchases of non-essential supplies and equipment), we have undertaken a number of stream-lining, consolidation, and cost-reduction initiatives. Several of the initiatives are well underway: management re-engineering, which has resulted in our abolishing 667 management positions to date and improved the supervisor-to-line staff ratio; closure of four stand-alone federal prison camps; discontinua-tion of three Intensive Confi nement Center (ICC) programs—the boot camp programs; consolidation of human resource functions; central-ization of sentence computation and inmate designation activities; and identifi cation of mission-critical posts on the correctional roster that would be vacated only under rare circumstances (expected to substan-tially reduce overtime costs).

We must continue implementing the cost-reduction and streamlining initiatives that we have started and fi nd ways to keep costs as low as possible, without compromising

the safety and security of our insti-tutions. The Bureau remains fully committed to the principles of bringing on new prison beds to reduce crowding and staffi ng posi-tions that have direct contact with inmates.

We recognize the concern voiced by some members of the Judiciary, especially with respect to discontin-uing the ICC program. However, the fact remains that ICCs were costly to operate and no more effective in reducing recidivism than ordinary minimum-security facilities. Oper-ating traditional minimum security beds in lieu of ICCs requires fewer staff and allows us to confi ne more inmates.

Q:Why is the BOP consolidating sentence computation and

designation functions?

A:The Bureau has received ques-tions regarding our plan for

consolidating sentence computation and designation functions in Grand Prairie, Texas, so I want to take this opportunity to share our expecta-tions regarding benefi ts that will be achieved, as well as our vision for this process. When the Bureau assumed responsibility for District of Columbia Superior Court felons, we centralized the sentence compu-tation process for those inmates. We learned many lessons from this centralized approach, and we are using the same framework to move forward with this concept on a national level.

The Designation and Sentence Computation Center (DSCC) will join other consolidated functions located in Grand Prairie. This consol-idation is expected to improve consistency, enhance management and oversight, and yield cost effi -ciencies by developing a cadre of highly-skilled staff at one location.

The Bureau has begun to relocate staff from our community correc-tions offi ces and institutions to the DSCC. These staff are already processing sentence computations for newly activated institutions and other select Bureau facilities.

Once centralized, the designation process will essentially remain the same. The Bureau will still rely on the U.S. Marshal Service (USMS) to notify us that a prisoner is ready to be designated; and we will still need and use the information provided in the presentence report, Statement of Reasons, Judgment in a Criminal Case, violation reports, etc. We will fully utilize available technology to coordinate and manage a centralized process.

During FY 2005, our commu-nity corrections offi ces processed almost 75,000 requests for designa-tion. Managing this volume of paper documents at one location is not effi cient or cost-effective, whereas electronic fi le management is expe-ditious. Similarly, electronic routing of documents would eliminate time and expense associated with mail delivery.

Q:In December 2002, the BOP implemented a signifi cant

procedure change regarding inmate designations to Community Correc-tion Centers (CCCs). What changed?

BOP Director Harley Lappin

The Third Branch March 2006

11

And how is this working?

A:On December 20, 2002, the Bureau changed its procedure

for designating inmates to CCCs for service of prison sentences. The changes were two-fold: fi rst, inmates sentenced to terms of imprisonment may no longer be directly designated to CCCs, even when recommended by the sentencing court. Rather, all inmates serving terms of imprison-ment must be initially designated by the Bureau to prison or jail facili-ties. Second, pre-release CCC desig-nations are now limited in duration to the last 10 percent of an inmate’s prison term of service, not to exceed six months. The Bureau’s proce-dure changes were prompted by the Department of Justice’s Offi ce of Legal Counsel, which reviewed and reinterpreted the Bureau’s statutory authority to designate an inmate’s place of imprisonment, taking into consideration relevant U.S. Sentencing Guideline provisions.

In terms of impact on the inmate population, the December 2002 procedural change temporarily decreased our CCC population and shortened the amount of time inmates spent in CCCs. However, both length of stay in a CCC and our national CCC population levels have rebounded, returning to levels comparable to those that existed prior to the procedural change. More importantly, this change did not affect the rate at which inmates are transferred to CCCs to assist them in their preparation for release. Since the end of 2002, we have continued to release over 77 percent of all eligible inmates through a halfway house; and we are providing, on average, between three to four months of community-based programming for inmates releasing through a CCC.

Q:The sentences of offenders serving a prison term in the

federal system also may include a period of probation or supervision

following release. How does BOP work with federal probation offi cers as a prisoner moves to release status?

A:We have been working closely with the Administrative Offi ce

of the U.S. Courts (AO) to enhance information sharing before, during, and after incarceration. At the front end of the process, probation offi -cers gather information we need; then during incarceration, we gather information probation offi cers need for the fi nal stage—community supervision.

The Interagency Committee for Needed Enhancements to the Elec-tronic Exchange of Data (IC-NEED) is an example of collaborative efforts designed to improve communica-tion effectiveness and information fl ow. This workgroup was origi-nally established to promote data exchange between the AO and the Bureau for research purposes. However, given broader government and public interest in inmate re-entry and its relevance to the Bureau’s Inmate Skills Development initiative, the potential benefi ts to including other agencies became obvious. This partnership now includes represen-tatives from the AO, U.S. Probation and Pretrial Services System, Offi ce of the Federal Detention Trustee, USMS, U.S. Sentencing Commission, U.S. Parole Commission, and the Bureau. The purpose of the group is to establish common data elements (defi nitions, formats, etc.) and the mechanisms for effi ciently sharing each agency’s operational data in an electronic format. Instrumental to data exchange is the identifi cation of a common case identifi er. The work-group grappled with this issue and the collective agreement was to use the USMS’ number. More recently the focus has been on working with the AO on the automation of the presentence report (PSR). The AO asked for input regarding what other agencies need that is not currently in the PSR, as well as items needing modifi cation. The automation of the

PSR will itemize every data element, so that all of the PSR data needs of affected agencies will be delivered in an electronic format. This will provide the Bureau with tremen-dous effi ciency; everything that we currently extract from that docu-ment, like the information needed for security and medical designa-tions, drug and mental health treat-ment identifi cation, and so forth, will come to us electronically. This will allow for a complete automation of our designation process, perhaps requiring only a visual confi rma-tion by a staff member, rather than the labor intensive process currently required. The AO is making incred-ible progress on its development agenda. In exchange, the AO will receive data on each inmate’s prog-ress toward skills development while in Bureau custody, including, for example, drug treatment, job training, and academic training performance. Furthermore, we will be able to easily report who is expected to be released at any point in the future. This way, proba-tion offi cers will know who will be on their caseload next week, next month, or next year, and what special housing, program, or other needs they might have to arrange for this individual.

Additionally, Bureau staff complete a Supervised Release State-ment and a fi nal progress report at least 90 days prior to an inmate’s release to the community or upon referral to a halfway house. The Supervised Release Statement contains the inmate’s proposed release residence, proposed employ-ment, conditions of release, and detainer information if applicable. The progress report provides a summary of the inmate’s institu-tional adjustment, including release preparation. These documents hope-fully facilitate the work of federal probation offi cers in preparing for supervision of releasing inmates.

The Third Branch March 2006

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PAIDU.S. COURTS

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FIRST CLASS

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Post-Conviction Supervision and Pretrial Services

On September 30, 2005, the number of persons under post-conviction supervision was 112,931, an increase of less than one-tenth of 1 percent over the number for September 30, 2004. Persons serving terms of supervised release after leaving prison, a total of 82,832 persons, grew 5 percent (up 4,238) above the number for FY 2004. Cases involving probation imposed by district judges and magistrate judges fell 8 percent to 26,554. Parole cases, including those involving special parole and military parole, decreased 5 percent to 2,778 and those involving mandatory release dropped 9 percent to 405.

The number of presentence reports prepared by probation offi cers rose by 109 reports to 66,227 in FY 2005.

The number of defendants in cases opened in the pretrial services system, including pretrial diversion cases, dropped less than 1 percent to 99,365. This total for cases activated was second only to the all-time high

of 100,005 reported for FY 2004. Pretrial services offi cers prepared

94,771 pretrial services reports in FY 2005, a rise of 1 percent. A total of 34,860 defendants were placed under supervision in the pretrial services system in 2005, a rise of 20 defen-dants over the number for FY 2004. Thirty-two percent of defendants in pretrial services cases were illegal aliens, compared to 30 percent in FY 2004.

Caseloads continued from page 6

space at other courts as well, which is why all courts have received customized binders of their rent bills, and we’ve begun training in rent validation nationwide.” (See Box on National Rent Validation Program.)

Worley believes there may be potential cost savings for the Judi-ciary as fl oor plans and classifi cations are reviewed, “but we won’t know until we work with the courts on a case-by-case basis,” she said.

Rent Questons continued from page 9

National Rent Validation Program

A two-day training program on rent validation was held at the AO in February 2006. Over 30 participants including one point of contact from each circuit, GSA representatives, and AO staff were trained in Phase I of the National Rent Validation Program.

In this phase, court staff compare space assignment draw-ings to space occupied by the courts in federally-owned build-ings. The comparison should determine whether GSA is accu-rately applying its space-pricing policy. Court staff then work with GSA to adjust the rent where applicable.

Program participants reviewed rent bill concepts and case studies, took part in exercises, learned about AO and contractor support, and were introduced to the next step in the program, Phase II, which looks at the rental rates charged per square foot.