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Imagine a federal judicial system in which courthouses are open every other week, there is a five-year wait for a jury trial and no oral arguments are permitted on appeals. It is a pretty drastic picture, and an exaggerated one at that, but court scholars and others believe a funding crisis, unprecedented in the last two decades, will result in fundamental alterations in the nation’s justice system in another two years if left unresolved by Congress. “If we have to make major reductions in staff in fiscal 2005, we will have some parts of the country where we can’t provide all of the services we need to provide,” said Chief Judge Carolyn Dineen King of the 5th U.S. Circuit Court of Appeals, who chairs the executive committee of the Judicial Conference of the United States. “For sure it will happen throughout the country if we have to do it in the following year. “We are at a very difficult pass, I would say,” she added. At a difficult pass and in a holding pattern. When Congress recessed this month for the election, it had yet to enact a budget for the judiciary and a number of other federal agencies and departments. It left in place a continuing resolution that funds them through Nov. 20. (Fiscal year 2005 actually began Oct. 1.) While the courts say they have been underfunded in the last four years, what is particularly worrisome this year is that Congress is considering a hard freeze: appropriations for all nondefense, nonhomeland security operations would be frozen at fiscal year 2004 levels. If that happens, wrote Chief Judge John W. Sedwick of the U.S. District Court for the District of Alaska in a letter to the Senate’s Appropriation Committee chairman, the courts, which already stand “on the brink of a fiscal abyss” will “plunge over the precipice.” Under a hard freeze, the judiciary estimates it would have to fire or furlough 2,200 to 5,000 full-time employees-almost 20 percent of probation officers and clerks’ office staff-and make a 50 percent cut in court operations costs. Money to pay attorneys who represent indigent criminal defendants under the Criminal Justice Act would run out next June, and money for jury fees would be exhausted in July. LOSING MORE DOLLARS In dollar terms, the problem is a cumulative one. Until about four years ago, the judiciary was receiving annual budget increases from Congress of about 10 percent. But about four years ago, the increase started to decline-and swiftly. In the last two budget years, the judiciary received increases of 4.8 percent and 4.7 percent. “What does that translate into?” asked King. “We need an increase of about 6.1 percent each year in order to simply maintain current services. That will not cover increases in our workload, but it will cover a comparable amount of workload to that of the prior year.” The problem is exacerbated by the annual rent increases the judiciary pays to the General Services Administration (GSA): 8 percent every year, which is 22 percent of the courts’ budget. “It is not negotiable,” explained King. “We are the largest rent payers. The Department of Justice is the second largest and it is painful for them too. “When you take into account that we haven’t been getting the amount to cover current services and the fact that our rent is going to go up, our financial situation has been very problematic,” she added. “What we’ve done is the only thing we can do. We have had to cut staff.” In the last year, the judiciary has cut, through layoffs or attrition, about 1,000 staff positions. Before recessing, the House passed its own appropriations bill for the judiciary which would give the courts an increase of 5.6 percent, close to what they need to maintain current services. The Senate also passed a bill but its increase is 3 percent — “a real haircut,” said King. Two weeks ago, the Judicial Conference sent an appeal letter to lawmakers who will be working to resolve differences between the two appropriations measures. The conference, which had requested an 11.5 percent increase to meet fiscal 2005 workload requirements, is now asking for the minimum funding needed to maintain fiscal year 2004 level of services and operations — not covering workload increases –and to be excluded from any across-the-board reduction. The conference also recently approved a two-year moratorium on 42 courthouse construction projects, and said it will seek full funding for four projects considered space emergencies in Los Angeles; San Diego; El Paso, Texas; and Las Cruces, N.M. BAD TIME FOR A BUDGET CRUNCH In non-dollar terms, the problem is caseload. “There’s always some concern that the courts are crying wolf, but I think the federal courts generally run a fairly lean operation,” said long-time court scholar Arthur Hellman of the University of Pittsburgh School of Law. “The fact is their caseloads are growing.” Last year, appeals filed in the U.S. courts of appeals increased 6 percent, to 60,847. In the district courts, civil filings dropped 8 percent, largely because of a reduction in asbestos-related cases, but criminal filings rose 5 percent and immigration cases increased 22 percent. Bankruptcy filings increased 7 percent to a record 1.6 million. Aside from generally anticipated increases in filings, Hellman noted the courts have had to deal with two very unexpected caseload problems that are emblematic of what is happening to the courts. The 9th U.S. Circuit Court of Appeals, and to a lesser extent the 2nd and 5th circuits, have had a huge influx of immigration appeals, a direct result of Attorney General John Ashcroft’s regulations to decrease a backlog of immigration cases at the Board of Immigration Appeals. “It seems somewhat perverse to reduce the workload of an administrative agency and to impose it then on the courts,” said Hellman. And, he noted, the Supreme Court’s June decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), a state sentencing case, has increased the workload because it threw into doubt the constitutionality of the Federal Sentencing Guidelines. Courts and prosecutors have been scrambling to anticipate what the impact on sentencing will be. “The one consequence of that is many sentencing determinations before the Supreme Court decision that would have been routine and non time-consuming are now requiring huge amounts of time and attention by judges, assistant U.S. attorneys and defense attorneys,” said Hellman. “That pushes other cases further down the line. “Even if the caseload had remained the same, when you have an upset like this, just the sheer amount of human resources the court system has to devote to a large class of cases increases,” he explained. “Even with a steady budget that would be difficult.” The caseload and budget problem also create unique difficulties because there are just too few judges, particularly at the circuit level, said another court scholar, William Richman of the University of Toledo College of Law. By the Judicial Conference’s own staffing model, the circuits are shy by about 80 judgeships, said Richman. To keep current with their workloads, the circuits generally do three things, Richman said: They issue fewer published opinions (20 percent to 30 percent of their decisions are published); they use a huge number of nonjudicial employees, usually staff attorneys; and they deny oral argument in a large number of cases. NO RELIEF IN SIGHT But Richman and Hellman agree that conditions such as a Senate that is highly polarized on judicial confirmations, a more-than-lean federal budget and circuits — notably the 11th — that are reluctant to grow larger, likely will thwart any effort to increase the number of appellate judges. Besides the courthouse building moratorium and staff reductions, the Judicial Conference is also looking at ways to limit salary increases within the court system, to examine and adjust fees when necessary, to use technological improvements to reduce the need for staff and to open discussions on the rent paid to the GSA. In the Southern District of Illinois, staff cuts are no longer an option because the court is already operating below the number of staff dictated by its workload, said Chief Judge G. Patrick Murphy in a memo last summer. His court, he said, will reduce hours of operation and cut salaries in response to underfunding. There is also something of a vicious circle to the underfunding, particularly of staff, noted Norman Zoller, circuit executive of the 11th Circuit. When appropriated funds are actually allocated to courts, he said, the money is based on formulas and assessments of current staffing at a particular moment. “All of us have really tried to keep our eye on that horizon — if less funds may be coming, how can we be less vulnerable to laying off people,” he said. If vacancies have gone unfilled, for example, a court may have less staff on board at the time an assessment is made, he explained. “You could end up with less funds for staff the next fiscal year,” he said. At this point, there are no easy choices for the courts in shaving their budgets, said King. She is particularly worried about future reductions in probation services. “We’ve had problems with probation on the Southwest border,” she said. “When you lay off probation officers, it causes delays [in sentencing].” Those awaiting sentencing in Texas are housed in county jails. “Well, the county jails won’t hold anymore,” said King. “You have another problem when border patrol is arresting more people. The question is where do we put them?” King admitted the outlook for funding of current services in fiscal 2005 is not hopeful. “In a world where there’s a lot of tension, we have never experienced any resistance or animosity from our appropriators in the House and Senate,” said King. “On the contrary, we have experienced real appreciation of the problems we have. It’s simply a matter of there not being enough money to go around.”

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