With the end of the fiscal year less than two weeks away, and absent any clarity from Congress regarding next year's budget, the federal judiciary is preparing for what court officials describe as "the worst-case scenario."
From courthouse closures to cuts in security, employee training and information technology, "you look at everything," Chief Judge William Traxler Jr., chairman of the Judicial Conference of the United States' executive committee, said last week after announcing a series of fresh cost-cutting measures.
The fiscal year ends on September 30. Congress has yet to pass a budget for fiscal year 2014. It's unclear whether mandatory budget cuts known as sequestration, which eliminated $350 million from the judiciary's budget last year, would continue.
Appropriations committees in both houses of Congress approved budgets that would, at a minimum, roughly restore money to the judiciary at pre-sequestration levels. Still, court officials fear a fight among the House, Senate and White House over other budget priorities could lead to a continuing resolution that maintains sequestration cuts or otherwise keeps the judiciary's budget flat.
The courts' latest plan to cope with a tight budget included a moratorium on new courthouse space, with an exception for construction approved by Congress. During its biannual meeting this month, the judicial conference, a 26-member policymaking body for the federal courts, also agreed to reduce courthouse space nationwide by 3 percent by the end of fiscal year 2018.
Pursuing legislation that would give federal judges greater flexibility to sentence below mandatory minimums was another longer-term strategy announced by the judicial conference. The judiciary pays for offender supervision at an estimated cost of about $279 per month per offender. Officials said that offenders sentenced under mandatory minimums spend more time under supervision. Congress is considering a bill, the Justice Safety Valve Act, that would allow greater judicial discretion at sentencing. Attorney General Eric Holder Jr. supports the legislation.
The judicial conference said it would seek additional legislation allowing courts to end supervision sooner for offenders released because they were dying, physically incapacitated or deemed too old to pose a threat to ­society.
CUTS FOR DEFENDERS
Paying for indigent criminal defense has been a particular area of concern. Federal public defenders were forced to take several weeks of furloughs this year and are bracing for more of the same and possibly layoffs next year if sequestration continues.
Traxler announced last week that the judiciary had run out of money to pay private lawyers appointed to represent indigent criminal defendants under the Criminal Justice Act (CJA) for the last two weeks of the fiscal year. Those payments will be deferred to next year. The judiciary announced this summer that to preserve as much money as possible for public defenders, the courts would cut CJA hourly rates by $15 and delay payments in fiscal year 2014 by up to four weeks.
"We are in crisis," Cait Clarke, chief officer in the U.S. courts' Office of Defender Services, said during a panel discussion on September 17 attended by U.S. representatives John Conyers (D-Mich.) and Bobby Scott (D-Va.). Federal public defenders and their advocates tried to make their case for congressional lawmakers to restore the nearly $51 million cut from the defender services budget. The defender services budget under sequestration was around $988 million, according to the Administrative Office of the U.S. Courts.
David Patton, executive director of Federal Defenders of New York, warned that the budget cuts could harm clients. He mentioned one case in which a defender and investigator discovered surveillance video that established an alibi for a defendant. Prosecutors dropped a robbery charge. What with three weeks of furloughs his staff absorbed during the summer, "I don't know if that happens today. I don't know if our investigators get to that furniture store before the video was erased."
Across the country, federal judges, often loath to enter the political fray, have publicly pressed Congress and the White House to restore funding. In a rare public appeal to the White House, U.S. District Judge John Bates in Washington, secretary of the judicial conference, wrote a letter on September 10 asking President Barack Obama to be a forceful voice for increased support for the judicial branch in impending budget battles.
Bates, also the new director of the Administrative Office of the U.S. Courts, told Obama, "I hope that you and the Congress will recognize the uncontrollable nature of our workload and provide the resources necessary for the judiciary to perform its essential constitutional functions."
Experts on the judiciary could not recall the last time the conference made such a direct and open plea to a president. Conference officials regularly testify before Congress and have made their concern about budget cuts well known to legislators, but their contacts with the executive branch are seldom public.
"I can think off-hand of no public, written request from the federal judiciary to the president for assistance in arguing the judicial branch's case for increased appropriations" in the modern era, said Russell Wheeler, a visiting fellow at the Brookings Institution.
In a letter released last week, Chief Judge Patti Saris of the U.S. District Court for Massachusetts urged her state's congressional delegation to restore full funding to the courts. Saris said her court was grappling with cuts as it handled high-profile cases that placed additional demands on courthouse security and administrative personnel, including the prosecution of accused Boston Marathon bomber Dzhokhar Tsarnaev. The court hasn't filled staff vacancies and scaled back spending on maintenance and technology, she said, but "[t]his approach is clearly not a long-term solution."
CHIEF JUDGES MAKE PLEA
The chief judges of 87 federal district courts wrote a letter to congressional leaders in August urging them to restore money to the judiciary. Budget cuts "have forced us to slash our operations to the bone, and we believe that our constitutional duties, public safety, and the quality of the justice system will be profoundly compromised by any further cuts," the judges wrote.
The letters "are a reflection of the severity of the judiciary's funding concerns," said David Sellers, spokesman for the administrative office. "The letters also are an acknowledgement that the courts are doing all they can to cut costs, but ultimately must depend on the other two branches to reach a funding agreement."
Traxler said that beyond the broad measures adopted by the judicial conference, much of the decision-making about how to absorb cuts rested with individual courts and departments.
"What we're doing probably is a combination of both — we're trying to do things like overall rent reduction in combination with individual solutions that the particular departments come up with," he said. When it comes to decisions such as closing courthouses, though, "a whole lot of it that's going on is based on individual decisions, court-particular decisions."