[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
SECURE ACCESS TO JUSTICE AND
COURT PROTECTION ACT OF 2005
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
ON
H.R. 1751
__________
APRIL 26, 2005
__________
Serial No. 109-44
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
______
U.S. GOVERNMENT PRINTING OFFICE
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona ADAM SMITH, Washington
MIKE PENCE, Indiana CHRIS VAN HOLLEN, Maryland
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
HOWARD COBLE, North Carolina, Chairman
DANIEL E. LUNGREN, California ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida MAXINE WATERS, California
STEVE CHABOT, Ohio MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida WILLIAM D. DELAHUNT, Massachusetts
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas
Jay Apperson, Chief Counsel
Elizabeth Sokul, Special Counsel for Intelligence
and Homeland Security
Michael Volkov, Deputy Chief Counsel
Jason Cervenak, Full Committee Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
----------
APRIL 26, 2005
OPENING STATEMENT
Page
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 1
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Ranking Member, Subcommittee on
Crime, Terrorism, and Homeland Security........................ 2
WITNESSES
The Honorable Jane R. Roth, Chair, Committee on Security and
Facilities, Judicial Conference of the United States
Oral Testimony................................................. 8
Prepared Statement............................................. 10
The Honorable Cynthia Stevens Kent, District Court Judge, 114th
Judicial District Court, Smith County, Texas
Oral Testimony................................................. 15
Prepared Statement............................................. 18
The Honorable Paul J. McNulty, United States Attorney, Eastern
District of Virginia
Oral Testimony................................................. 25
Prepared Statement............................................. 27
Mr. John F. Clark, United States Marshal, Eastern District of
Virginia, appearing for the United States Marshals Service,
Department of Justice
Oral Testimony................................................. 36
Prepared Statement............................................. 38
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Robert C. Scott, a
Representative in Congress from the State of Virginia, and
Ranking Member, Subcommittee on Crime, Terrorism, and Homeland
Security....................................................... 75
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Subcommittee on Crime, Terrorism, and Homeland Security........ 76
Prepared Statement of Mary McQueen, President, National Center
for State Courts............................................... 76
Letter from the Judicial Conference of the United States, dated
April 1, 2005, submitted by the Honorable Robert C. Scott, a
Representative in Congress from the State of Virginia, and
Ranking Member, Subcommittee on Crime, Terrorism, and Homeland
Security....................................................... 81
Response to post-hearing questions from the Honorable Paul J.
McNulty, United States Attorney, Eastern District of Virginia.. 85
SECURE ACCESS TO JUSTICE AND
COURT PROTECTION ACT OF 2005
----------
TUESDAY, APRIL 26, 2005
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:01 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Howard
Coble (Chair of the Subcommittee) presiding.
Mr. Coble. Good afternoon, ladies and gentlemen. I want to
welcome you to this very important legislative hearing before
the Subcommittee on Crime, Terrorism, and Homeland Security, to
examine the problem of violence in and around our courthouses
against judges, prosecutors, witnesses, law enforcement, and
other court personnel, and the comprehensive bipartisan
proposal recently introduced by my good friends and colleagues,
Representative Gohmert and Representative Weiner, H.R. 1751,
the ``Secure Access to Justice and Court Protection Act of
2005.''
Recent tragic events--the killing of family members of
United States District Judge Joan Lefkow; and the brutal
slayings of Judge Rowland Barton, his court reporter, his
deputy sheriff, and a Federal officer in Atlanta; and the cold-
blooded shootings outside of the Tyler, Texas courthouse--all
underscore the importance of security for judges, courthouse
personnel, witnesses, and law enforcement. This is a problem
which threatens the very integrity of our judicial system.
Our Committee has, for many years, as you all know, focused
on the issue of protecting witnesses and victims of crime. That
problem continues to exist, but has now grown with recent
brutal acts of violence, increasing number of threats, and
attempts to derail our civil and criminal justice system.
We must work together in a bipartisan effort to ensure that
our judicial system operates in a safe environment. Judges,
witnesses, courthouse personnel, and law enforcement must not
have to face threats of violence when carrying out their
duties.
Our mission here is to provide the resources and the tools
necessary to ensure that our judicial system works. Our words
must translate into deeds and meaningful reforms and resources.
Courthouse protection does not simply mean in and around
the courthouse itself. Security needs to extend to the homes
and areas that judges, prosecutors, law enforcement, and
witnesses live. Without such protection, justice will truly be
denied, as criminals seek to undermine our justice system;
whether it be a disgruntled civil litigant, a dangerous
criminal seeking to take out a judge or a prosecutor, kill a
gang member who has agreed to testify against other gang
members, or murder innocent civilian witnesses who have done
nothing wrong other than carry out their civil obligation to
testify against a violent criminal.
At the Federal level, the United States Marshals Service
carries a heavy obligation to protect those working in the
Judicial Branch, as well as witnesses in Federal trials.
The Committee has heard concerns about the United States
Marshals' ability to carry out its duties. A recent Inspector
General's report raised questions about the marshals' witness
protection program. In addition, we've heard that marshals may
not have adequate resources to fulfill its mission; that
questions have been raised about allocation of resources
between the field and headquarters locations; and that
arbitrary decisions at the marshals' headquarters adversely
affect both morale and security efforts in the field.
The Subcommittee intends to examine these issues, and I'm
grateful for my support--for the support of my good friend and
colleague, Ranking Minority Member ``Bobby'' Scott, for his
commitment to conduct oversight of the U.S. Marshals Service to
determine what, if any, additional measures may be needed.
At the State and local level, I'm very interested in
hearing what Congress can do, if anything, to assist in the
protection of their courts and their witnesses. I'm already
aware of a dire need for assistance in the creation of witness
protection programs at the State and local level. As we all
know, the bulk of criminal prosecution occurs at the State and
local level.
I was disturbed to hear recently that 40 percent of
homicide prosecutions in Baltimore, Maryland, are dismissed or
derailed by witness intimidation, threats, and violence.
Moreover, I was furthermore disturbed to learn that there are
existing websites on the Internet which disclose the identity
and personal information of judges, witnesses, law enforcement,
and other criminal justice personnel. These techniques of
witness intimidation must not continue.
I want to take a moment to thank Representative Gohmert,
the gentleman from Texas, and Representative Weiner, the
gentleman from New York, who have crafted comprehensive
legislation in H.R. 1751 to address these issues. I
congratulate them for their bipartisan effort.
There's more to be done, and I'm committed to making sure
that the Subcommittee continues to examine all these issues. As
I said, the integrity of our judicial system is at risk, and we
must act now.
And I want to say a word or two about mandatory minimums.
They've been kicked around a lot recently. And I'm sure Mr.
McNulty is going to address that today. I have----
Mr. Scott. I'm going to maybe address it, too.
Mr. Coble. And the Ranking Member says he may address it,
as well.
I have consistently voted in favor of mandatory minimums,
but I'm revisiting that. Oh, you can't dare talk against
mandatory minimums; you're soft on crime! Well, I'm not soft on
crime, but I want to be sure that there are adequate safety
nets.
Folks, when you impose an absolute standard, inevitably, in
my opinion, there is going to be an injustice or an inequity
imposed at either individuals or groups, small however they may
be. I think there's a place for mandatory minimums. But as I
revisit it, I want to be doggone sure that there is a safety
net; because I'm afraid that sometimes someone may fall through
the cracks. Now, the hardline proponents of mandatory minimums:
``Oh, no, no one falls through the cracks.'' Well, that may or
may not be true. Paul, you might could educate me more
thoroughly on that.
I think, folks, it's a situation where reasonable men and
women can differ. I think convincing arguments can be made on
each side of this issue. And I'm sure Mr. McNulty is going to
address it. The Minority Member implies that he's going to
address it. But subject to interpretation, of course.
I don't want anybody to think that I'm abandoning my past
support on mandatory minimums, because I'm not. But I want to
be sure about the safety net, and I'm not thoroughly convinced
it's there. It may well be there.
Having said all that, I guess what I--in conclusion, Mr.
Scott, before I surrender it to you----
Mr. Scott. Surrender? [Laughter.]
Mr. Coble. Pardon? What did you say?
Mr. Scott. Surrender?
Mr. Coble. Before I surrender the mike to you. Many
advocates see this issue, folks, as all black or all white. I
see subtle shades of gray. And I want to visit that more
thoroughly.
And having said that, I want to recognize my good friend--I
guess he's still a good friend--the Ranking Member from
Virginia, Mr. ``Bobby'' Scott.
Mr. Scott. If you're changing your position on mandatory
minimums, you're going to become a much better friend.
Mr. Coble. Well, now, would the gentleman yield? I didn't
say I'd change my position.
Mr. Scott. Thank you, Mr. Chairman. I'm pleased to join you
as we convene the hearing on security in our courts and
protecting our judges and others associated with court
operations. Unfortunately, as you've indicated, I'm unable to
join you in supporting the bill before us because of the
extraneous matters that are in the bill.
With several sensational incidents in recent years
involving murders of judges, family members of judges, court
personnel, witnesses, and others, we've come to see the
consequences of insufficient security for our court operations
and security for persons associated with them.
All agree that enhancement of security for our courts and
all persons associated with them--that increasing that security
is imperative. Yet the proponents of H.R. 1751 have chosen to
address those needs in a manner apparently calculated to
prevent or undermine the prospects of broad bipartisan and
general support for that effort.
Unfortunately, H.R. 1751 is yet another effort to use an
appropriate issue of concern to the Nation as a vehicle for
extraneous controversial and general provisions of the law that
are unnecessary, costly, and often counterproductive to that
concern. Yet again, in this Congress we're considering a bill
that purports to address a serious concern, security in the
courts, when in essence, the bill is merely a host for more
draconian criminal penalties aimed at ensuring that bit players
and major players of crime face the same consequences.
Among other provisions in H.R. 1751--among other
provisions, H.R. 1751 contains seven new death penalties; a
speedy habeas corpus procedure to ensure that more innocent
people are put to death; and increasing the number by applying
the provision to ex post facto, you've got 22 new mandatory
minimum sentences, provisions to punish attempts and
conspiracies the same as completing the offense.
The habeas corpus provision is particularly troubling,
given that 119 death row inmates have been exonerated over the
last 12 years--that's almost one a month--after languishing on
death row for many years. The impact of the provision seems to
ensure that innocent people will be executed before they have
enough time for the evidence to develop to exonerate them.
As with the Effective Death Penalty Act of 1996, the public
rationale undergirding of this provision is apparently that it
is inconsistent with an effective death penalty if we let the
courts get clogged up by all these innocent defendants.
The public is clearly rethinking the appropriateness of the
death penalty in general, due to the evidence that it is
ineffective in deterring crimes, racially discriminatory, and
it's found much more often now to be erroneously applied. A 23-
year comprehensive study of the death penalty found that 68
percent of the death penalties applied were erroneous. That is
not surprising that 119 people sentenced to death over the last
12 years have been completely exonerated. It's not surprising
that with such a sorry record of death penalty administration
that several States are abolishing the death penalty, or had
them overturned by courts, or placed moratoriums on their
application while studies are being conducted, or just haven't
applied a death penalty in many years. Connecticut, for
example, hadn't executed anyone for 45 years.
Some have referenced the econometric research of economist
Joanna Shepherd as justification for the death penalty. More
recently, she has done further analysis and elaboration on her
research, and concluded that executions deter murders in six
States; they have no effect on murders in eight States; and
they increase murders in 13 States. That is the research
justifying the death penalty.
Now, mandatory minimum sentences clearly detract from the
importance of the bill. Through rigorous study and analysis,
mandatory minimums have been shown to be less effective, and
thus waste money when compared to more effective approaches in
the criminal justice system. And they are discriminatorily
applied. And they violate common sense.
Now, Mr. Chairman, I'd like unanimous consent to insert
into this record, as we have others, the letter from the
Judicial Conference that, among other things, notes that the
mandatory minimums violate common sense.
Mr. Coble. Without objection.
[The information referred to is available in the Appendix.]
Mr. Scott. Now, to suggest that opposition of mandatory
minimums is soft on crime, I think, is inaccurate. When the
plan is cost-ineffective, wasting money, is discriminatory, and
violates common sense, it seems to me that opposing such a plan
is not soft on crime. Mandatory minimums are just
inappropriate, and don't work.
Now, even though you've got the mandatory minimums in
there, the ones in the bill appear arbitrary and confusing. For
example, under section 7 of the bill, an individual who
threatens a witness, victim, or informant, will get a mandatory
10-year sentence. However, the same individual threatening a
judge, under section 2 of the bill would only receive a
mandatory minimum of 5 years.
Now, we're not going to quote the numerous studies
regarding the problems with mandatory minimums. But when we
combine the impact of this bill and its mandatory minimums with
the impact of similar bills that we're considering--the gang
bill and the drug bill recently considered by this Committee--
clearly, there will be a massive prison impact if they're all
enacted into law. The indications from the Sentencing
Commission assessing the impact of the gang bill alone is in
excess of $7 billion over the next 10 years. So I hope that you
will join me, Mr. Chairman, in requiring a prison impact
assessment from the Department of Justice regarding all of
these measures.
Just as clearly, Mr. Chairman, with the number of death
penalties and mandatory minimums that we have that would apply
to incidents that we have seen in our courts. We're not talking
about the kind of people that will be deterred by such
measures. And I hope we're not going to insult the public by
suggesting that some who--somebody who would have shot a judge
decided not to because we passed a new mandatory minimum
sentence.
So I look forward to the testimony of our witnesses, and I
hope that we might actually enhance court security. But
finally, Mr. Chairman, let me just say that I have a concern
about discussing court security in a public session. And I
don't know if you want to join me in this, but I would invite
the witnesses, if they have concerns about talking about some
of the security issues in public, to invite us to discuss these
in private. Sometimes security measures are best not discussed
in public. And if some would rather do it in private, I would
invite that process. Thank you, Mr. Chairman.
Mr. Coble. I thank the gentleman. And never has he been so
friendly to me. Never, never. But I have not abandoned my other
role. I want to make that clear. But I guess the good news--and
I'm looking directly at the U.S. Attorney. What attracted me to
mandatory minimums to begin with were a couple of features.
Number one, it provided the prosecution with added
leverage. I think no one will argue with that. It promoted--or
at least it hopefully promoted--consistency in sentencing. If
``Bobby'' Scott commits a crime, and Howard Coble committed a
crime under similar circumstances, hopefully, they will be
awarded an identical sentence. That was one of the reasons. I
just hope that we have not made the judges too inflexible in
doing it.
I'm just thinking aloud today. And we'll visit this, I'm
sure, thoroughly as we go along.
Mr. Scott. Will the gentleman yield?
Mr. Coble. Yes, sir.
Mr. Scott. The letter that will be introduced into the
record from the Judicial Conference points out that,
unfortunately, people who commit similar crimes may be very
dissimilar in the seriousness of the crime. Just because they
violated the same code section doesn't mean that the
seriousness of the crime is identical.
And they said that people who are similar will get very
different mandatory minimums; whereas those who are the same
often get very different sentences. And it's that inconsistency
that they point out violates common sense in many areas.
For example, in that drug bill we considered a couple of
weeks ago, if you commit a crime within the zone, you get the
draconian mandatory minimums; two feet away, outside of the
zone, you don't get the mandatory minimum. Two people who have
essentially committed the same crime, getting vastly different
sentences because of the mandatory minimums.
Mr. Coble. I thank the gentleman. We've been joined by the
distinguished gentleman from Massachusetts, Mr. Delahunt. Good
to have you with us, Bill.
Ladies and gentlemen, good to have you panelists, and those
in the hearing room, as well. It is the practice of the
Subcommittee to swear in all witnesses appearing before it. If
you would, please stand and raise your right hands.
[Witnesses sworn.]
Mr. Coble. Let the record show that each of the witnesses
answered in the affirmative.
We have four distinguished witnesses----
Mr. Scott. Can we ask them to sit down?
Mr. Coble. Oh, yes, you may be seated. I stand corrected.
You may indeed resume your seats. I'm not used to being--you
judges are used to giving directions to that. [Laughter.]
We have four distinguished witnesses with us today. Our
first witness is the Honorable Jane R. Roth, U.S. Court of
Appeals Judge for the Third Circuit. In addition to serving as
a U.S. Circuit Court Judge, Judge Roth is the Chairwoman of the
Subcommittee--strike that--of the Committee on Security and
Facilities of the Judicial Conference of the United States.
Judge Roth received her undergraduate degree from Smith
College, and obtained her law degree from the Harvard Law
School. Following law school, Judge Roth served as attorney for
Richards, Layton and Finger, and as a United States District
Court Judge for the State of Delaware.
Our next judge in line, the honorable--is Judge Kent. In
addition to being a constituent of our friend to the far end,
Representative Gohmert, she is also a personal friend. And he
has asked permission to introduce her today, and I recognize
the distinguished gentleman from Texas.
Mr. Gohmert. Thank you, Mr. Chairman. It is indeed my great
pleasure to introduce my good friend, formerly fellow district
judge in Texas, Judge Cynthia Stevens Kent. Judge Kent does
have over 20 years on the bench. She had been a county court
law judge in Texas, beginning back in 1984, and then in '88
went to the district bench; has been a district judge there.
She got her B.A. from the University of Houston in '75; and
then 2 years later, got her law degree. She was on the fast
track through high school; she was on the fast track through
college; she was on the fast track through law school. And
she's pretty much been ahead of most of us all her life.
She's also gotten her Master's of judicial studies there at
the National Judicial College associated with the University of
Nevada at Reno, in '99; and is working on her Ph.D. in the
judicial studies program, as well. She's been a faculty member
of the National Judicial College since '92; has been a constant
teacher and lecturer on continuing legal education, including
courses like ``Advanced Evidence,'' ``Handling Capital Cases,''
and ``Business Law.'' She co-authored the Texas Bench Book for
District Judges and the Texas Bench Book for County Court Law
Judges. She's written and published on Dalbert issues regarding
experts and gatekeepers.
She's been married for 29 years to Don Kent, civil defense
attorney. They have three grown sons. She is a constituent, as
you said; but even more important to me, she's my dear friend.
And I'm proud to introduce Judge Cynthia Stevens Kent. Thank
you, Mr. Chairman.
Mr. Coble. I thank the gentleman from Texas. And good to
have you with us, as well, Judge.
Mr. Paul McNulty, United States Attorney for the Eastern
District of Virginia, is our third witness. In addition to
serving as a U.S. Attorney, Mr. McNulty serves as the Vice
Chairman of the Washington Center--Baltimore High Intensity
Drug Trafficking Area.
Prior to becoming a U.S. Attorney, Mr. McNulty directed
President George W. Bush's transition team for the Department
of Justice, and then served as principal Associate Deputy
Attorney General. He also served on this very Committee for 8
years, first as a minority counsel, and subsequently as the
chief counsel. Mr. McNulty is a graduate of Grove City College,
and obtained his law degree from the Capital University School
of Law.
Our final witness is the Honorable John F. Clark, United
States Marshal in the Eastern District of Virginia. Prior to
his current appointment, Marshal Clark served as the Acting
Marshal and Chief Deputy Director for the District. He has held
numerous senior management positions with the Marshals Service,
including Chief of the Internal Affairs Division, and Chief of
the International Fugitive Investigations Division. Marshal
Clark is a graduate of Syracuse University.
Mr. McNulty, it is good to have you back on the Hill. It's
good to have you, Judge Roth, Judge Kent, and Marshal Clark, on
the Hill.
Folks, we abide rather rigidly by the 5-minute rule, as you
all have been told previously. If you could, confine your oral
statements to 5 minutes. And your warning is when the red light
illuminates into your eye. That tells you the ice on which you
have been skating is thin. Then you will terminate.
Now, we're going to make an exception today, and I don't
think there'll be any objection to this. Judge Kent will
provide for us a 5-minute presentation--Judge, the film. So you
will give your testimony, Judge Kent, and then at the
conclusion of your testimony, we will observe the film that you
have brought to show us. And I think that will----
[Discussion off the record.]
Mr. Coble. I'm told you're going to do the film first. All
right. So when Judge Roth completes her testimony, we'll
recognize you, Judge Kent, for the showing of the film, and
then your oral testimony. And then we'll move along to Mr.
McNulty and Marshal Clark.
Judge Roth, you may start.
TESTIMONY OF THE HONORABLE JANE R. ROTH, CHAIR, COMMITTEE ON
SECURITY AND FACILITIES, JUDICIAL CONFERENCE OF THE UNITED
STATES
Judge Roth. Thank you, Mr. Chairman.
Mr. Coble. Your mike I don't think is on, Judge Roth.
The red light to which I referred is on the panel that
appears before you all. Judge Roth.
Judge Roth. Yes, thank you. This hearing presents an
opportunity for all of us to heighten awareness of the current
state of judicial security, which by statute is provided by the
United States Marshals Service.
Mr. Chairman, I am sure that you and the Members of the
Subcommittee were horrified when you learned of the murders of
United States District Judge Joan Lefkow's husband and mother
in her home in Chicago. Subsequent events in a county
courthouse in Atlanta serve as a vivid reminder of the
potential dangers that participants in the judicial process
face in this country every day.
At its March 15 session, the Judicial Conference approved a
resolution which calls upon the leaders of the Department of
Justice and the Marshals Service to review fully and
expeditiously all aspects of judicial security, and in
particular security at judges' homes and other locations away
from the courthouse. The resolution also calls for adequate
funding for this essential function.
The primary statutory duty of the Marshals Service is the
protection of the judiciary. The Marshals Service acknowledges
its duty to fulfill this role; yet time and time again, we have
found that the Service does not have the resources necessary to
fulfill this obligation. When we have repeatedly expressed our
concern to the Marshals Service and to the Attorney General
about Marshals Service staffing levels, we have been assured
that the judiciary will be protected. Our requests to examine
staffing levels have not, however, been honored. Our requests
to participate in the determination of adequate staffing levels
have been denied.
And I think, ironically, there is no representative from
the Marshals Service headquarters here today to explain those
denials.
For years, the Marshals Service has experienced significant
staffing shortages. Although we have not been privy to actual
staffing allocations by judicial district, many United States
Marshals report to us that their staffing levels have been
significantly reduced. The Marshals Service has acknowledged to
us that the districts are operating up to 30 percent below the
number of deputy marshals needed to perform all of the local
marshals' responsibilities adequately.
There are examples of Marshals Service staffing shortages
across the country, particularly along the southern and
southwestern borders. The Federal courts have expressed strong
concerns about judicial protection for several decades. In
fact, in 1982, the Government Accountability Office issued a
report about the dilemma faced by the Marshals Service because
its mission is not solely dedicated to the protection of the
Judicial Branch.
In that report, it was noted that U.S. Marshals are
responsible for accomplishing missions and objectives of both
the Executive and Judicial Branches of the Government. The GAO
also noted at the time that it believes this is a difficult and
unworkable management condition, and that the Director of the
Marshals Service cannot properly manage law enforcement
responsibilities assigned by the Attorney General, and the
operation of the Federal judicial process suffers.
Mr. Chairman, I recognize that this report is almost 25
years old; but as I re-read it in preparation for this hearing,
it became clear to me that the concerns outlined in the report
are as relevant today as they were when the report was first
released. The fact is that the Marshals Service is forced to
serve two masters, and that there is constant tension and
competition between the Marshals' law enforcement
responsibilities and its primary statutory mission of security
for the Judicial Branch.
The Marshals Service's judicial security program also has
experienced significant budgetary problems because, in our
view, its law enforcement responsibilities have higher
visibility than prisoner transportation, courtroom and off-site
security, and threat assessment for judges and their families.
It seems to my Committee that the Marshals Service never
gets the resources it needs to get the job done. The Executive
Branch consistently recommends slashing funds before the
requests even make their way to Congress. In an op-ed that I
penned for the April 9 edition of The Washington Post, I called
upon key decision-makers to help us. I am therefore seeking
your assistance in helping to protect the Federal judiciary in
several ways.
In February 1990, after the December 1989 assassination of
Judge Robert Vance at his home in Birmingham, Alabama, by an
explosive device sent by a disgruntled litigant, the judiciary
called upon the Justice Department to implement a program of
off-site security for judges. This incident was the third
assassination of a Federal judge in recent history. All of
these murders occurred away from the courthouse.
The judiciary's request after the Vance murder was, in
retrospect, a modest one: an education program for judges,
their families, and court employees, about security precautions
that should be taken when they are not in the courthouse, and a
package of security equipment for every Federal judicial
officer, including a home intrusion detection system.
Although the Department and the Marshals Service initially
supported this approach, the Department abruptly withdrew its
support for funding such an initiative in November 1990, just
11 months after Judge Vance's death. That is a cause of a great
deal of our frustration.
Let me outline for you the steps that we would like you to
take in connection with the bill before you----
First, support the request for $12 million that would
provide a comprehensive package of off-site security equipment
for all judges.
Support section 13 of the bill, that would require
consultation and coordination by both the Director of the
Administrative Office of the Courts and the Director of the
United States Marshals Service regarding security requirements
for the Judicial Branch of Government.
Support section 14 of the bill, that would establish
significantly greater penalties for the recording of malicious
liens against Federal judges.
Support section 15 of the bill, that would provide
emergency authority to conduct court proceedings outside the
territorial jurisdiction of a court. The need for this
legislation became apparent after September 11th.
Support section 17 of the bill, that would provide
permanent authorization to redact information from financial
disclosure reports that could endanger the filer. It is
important for Congress to act soon, because this essential
security measure for Federal judges, employees, and their
families will expire on December 31.
Mr. Chairman, I thank you for the opportunity to appear
before you. I speak on behalf of all the judges throughout the
country. They appreciate giving us this opportunity. And I
would be pleased to answer any questions you might have.
[The prepared statement of Judge Roth follows:]
Prepared Statement of the Honorable Jane R. Roth
Mr. Chairman and Members of the Subcommittee:
My name is Jane R. Roth. I sit on the Third Circuit Court of
Appeals and serve as the Chair of the Committee on Security and
Facilities of the Judicial Conference of the United States.\1\ This
hearing presents an opportunity for all of us to heighten awareness of
the current state of judicial security, which, by statute, is provided
by the United States Marshals Service, an agency that is part of the
Executive Branch's Department of Justice. (See 28 U.S.C. Sec. 566 (a)).
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\1\ The Judicial Conference of the United States is the judiciary's
policy-making body.
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Mr. Chairman, I am sure that you and the members of the
Subcommittee were horrified when you learned of the murders of United
States District Judge Joan Lefkow's husband and mother in her home in
Chicago. Subsequent events in a county courthouse in Atlanta serve as a
vivid reminder of the potential dangers that participants in the
judicial process face in this country every day. At its March 15, 2005,
session the Judicial Conference approved a resolution which calls upon
the leaders of the Department of Justice and U.S. Marshals Service ``to
review fully and expeditiously all aspects of judicial security, and in
particular security at judges' homes and other locations away from the
courthouse.'' The resolution also calls for ``adequate funding for this
essential function.'' A copy of the resolution is attached to this
statement.
STAFFING SHORTAGES A MAJOR CONCERN
The primary statutory duty of the Marshals Service is the
protection of the judiciary. The Marshals Service acknowledges its duty
to fulfill this role. Yet, time and time again we have found that the
Service does not have the resources necessary to fulfill this
obligation. When we have repeatedly expressed our concern to the
Marshals Service and the Attorney General about Marshals Service
staffing levels, we have been assured that the judiciary will be
protected. Our requests to examine staffing levels have not, however,
been honored. Our requests to participate in the determination of
adequate staffing levels have been denied.
For years, the Marshals Service has experienced significant
staffing shortages. Although we have not been privy to actual staffing
allocations by judicial district, many U.S. Marshals report to us that
their staffing levels have been significantly reduced. Some Marshals
tell us that the districts are operating up to 30 percent below the
number of deputy marshals needed to perform all of the local Marshal's
responsibilities adequately.
There are examples of Marshals Service staffing shortages across
the country, particularly along the southern and southwestern borders.
Several years ago the chief district judge in the Southern District of
Florida had to make an urgent plea for staffing to the Congress on
behalf of his local Marshal. Of particular concern to some judges is
the use of contract employees, usually off-duty local enforcement
officers, to transport prisoners. Significant resources have been
provided by Congress to the Marshals Service in recent years because
the judiciary has requested funding that augments the funds requested
by the Justice Department for the Marshals Service. In virtually every
instance, it is because of the judiciary, not the Executive Branch,
that significant levels of additional financial resources have been
provided to the Marshals Service. Notwithstanding our efforts, the
Marshals Service is still experiencing budget problems.
At this point, the judiciary cannot tell the Congress or any other
interested party whether the local Marshals have enough resources and
staff. Furthermore, the Department refuses to share any information
about Marshals Service staffing levels and formulas or to consider
suggestions for change with us. The Judicial Conference's Executive
Committee meets twice a year with the Attorney General to discuss
security matters. Typically I attend that meeting. At this meeting last
month, I expressed my concern to the Attorney General about leadership
at the Marshals Service, the vacancies in several critical positions of
great importance to the judiciary at the Marshals Service, the need for
detailed information about Marshals Service staffing levels, and the
need for courtroom security by deputy marshals in all criminal
proceedings in which a defendant is present, i.e., not only when a
defendant is in custody.
COMPETING INTERESTS AFFECT RESOURCE AVAILABILITY
The problem of available resources is endemic in the system. The
federal courts have expressed strong concerns about judicial protection
for several decades. In fact, in 1982, the General Accounting Office
(now the Government Accountability Office) issued a report about the
dilemma faced by the United States Marshals Service because its mission
is not solely dedicated to the protection of the judicial branch.\2\ In
that report, it was noted that ``U.S. Marshals are responsible . . .
for accomplishing missions and objectives of both the executive and
judicial branches of the Government.'' The GAO also noted at the time
that it believes ``. . . this is a difficult and unworkable management
condition'' and that the Director of the Marshals Service ``. . .
cannot properly manage law enforcement responsibilities assigned by the
Attorney General, and the operation of the Federal judicial process
suffers.''
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\2\ U.S. Marshals' Dilemma: Serving Two Branches of Government,
GGD-82-3, April 19, 1982.
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Mr. Chairman, I recognize that this report is almost 25 years old.
But as I re-read it in preparation for this hearing, it became clear to
me that the concerns outlined in the report are as relevant today as
they were when the report was first released. The fact is that the
Marshals Service is forced to serve two masters and that there is
constant tension and competition between the Marshals' law enforcement
responsibilities, which, of course, include fugitive apprehension,
asset forfeiture, and witness protection, and its primary statutory
mission of security for the judicial branch. The Marshals Service's
judicial security program also has experienced significant budgetary
problems because, in the view of the Committee on Security and
Facilities, its law enforcement responsibilities have higher visibility
than prisoner transportation, courtroom and off-site security and
threat assessment for judges and their families.
It seems to my Committee that the Marshals Service never gets the
resources it needs to get the job done. The Executive Branch
consistently recommends slashing funds before the requests even make
their way to Congress. In an op-ed piece that I penned for the April 9,
2005, edition of The Washington Post, I called upon key decision makers
to help us. Some people believe that the Department of Justice will
never support full resource levels for the Marshals Service, in spite
of any Department of Justice statements to the contrary. Therefore, I
am seeking your assistance in helping to protect the federal judiciary
in several ways.
OFF-SITE SECURITY
In February of 1990, after the December 1989 assassination of Judge
Robert Vance at his home in Birmingham, Alabama, by an explosive device
sent by a disgruntled litigant, the judiciary called upon the Justice
Department to implement a program of off-site security for judges. This
incident was the third assassination of a judge in recent history. All
of these murders occurred away from the courthouse.
The judiciary certainly did not ask for a protective detail for
every judge in response to Judge Vance's death, as this was fiscally
unfeasible. Its request was, in retrospect, a modest one--an education
program for judges, their families and court employees about security
precautions that should be taken when they are not in the courthouse,
and a package of security equipment for every federal judicial officer,
including a home intrusion detection system. Although the Department
and the Marshals Service initially supported this approach, the
Department abruptly withdrew its support for funding such an initiative
in November of 1990, just 11 months after Judge Vance's death. In 1994,
GAO issued another report on judicial security that found that the
Department of Justice should incorporate consideration of off-site
security needs into district security surveys and plans, using risk-
management principles to identify, evaluate, and prioritize such needs.
After four and a half years, in December 1998, an off-site security
policy was ultimately issued by the Marshals Service. The judiciary
does not know how effectively the policy has been implemented because
it is not privy to any internal policy or program reviews conducted by
the Department of Justice or the Marshals Service. Furthermore, it was
the judiciary, not the Department of Justice, which initiated the
development of a training video and other materials used to educate
members of the judiciary about off-site security precautions.
In March of 2004, concerns were expressed by the Department of
Justice's Inspector General about the Marshals Service's ability to
assess threats, a matter directly related to off-site security. In
December 2004, the Director of the Marshals Service reported that
progress had been made with addressing the problems outlined in that IG
report. But because the Marshals Service and the Department will only
share limited amounts of information about how Marshals Service
resources are deployed, it's anyone's guess as to whether threats
against the judiciary are being handled appropriately. Based on what
little we do know, only three people are tasked at Marshals Service
headquarters with staffing the Office of Protective Intelligence as a
primary responsibility. At one point, these staff members did not even
report to the individual responsible for judicial security within the
Marshals Service. Threat assessment cannot be a collateral duty. A
focused, coordinated program with adequately trained personnel needs to
be a priority.\3\
---------------------------------------------------------------------------
\3\ It should also be noted that there is presently no permanent
head of the Division within the Marshals Service who is responsible for
judicial security. An individual has been acting in that position for
almost 12 months.
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COMMUNICATIONS STRATEGY
I have tried on numerous occasions to establish a working group
with the Department that could address both on- and off-site security
needs of the judicial branch. One attempt at establishing such a group
took place about four years ago--and failed. We had hoped that senior
political and career officials would have engaged in this effort. Quite
frankly, both the Marshals Service and the Department have refused to
participate in a formal standing group that would be charged with
assessing security needs for the judicial branch on an ongoing basis.
The Committee on Security and Facilities believes that had the group
been established, the Marshals Service and the judiciary would have
been the obvious beneficiaries and that precious time would not have
been lost. After the Department's Inspector General issued its critical
report of the Marshals Service in March 2004, I again attempted to
create a working group on judicial security. Again, the Department did
not engage with us in this effort.
The new Attorney General has established a working group within the
Department of Justice to make recommendations on judicial security
within sixty days. We greatly appreciate the Attorney General's
efforts. Although actions have been taken to obtain input from the
judiciary by this group, the judiciary is not a standing member of the
group and the group is not specifically focused on security for judges
and their families. Based on the past history I have enumerated, I am
hopeful, but not confident, that this working group will provide useful
advice to the Department of Justice and the Marshals Service.
Unfortunately, it is almost two months since the tragic deaths of Judge
Lefkow's family members, and the judiciary still does not know what
specific plans the Marshals Service and the Department have for
addressing our concerns.
WHAT ACTIONS CAN BE TAKEN TO ASSIST THE JUDICIARY?
Although much remains to be done, this Subcommittee can help the
judicial branch in a number of ways at this time by:
(1) Supporting a request for $12 million that would provide a
comprehensive package of off-site security equipment for all judges. On
April 21, 2005, the Senate passed a supplemental appropriations bill
that includes $11.9 million for the U.S. Marshals Service for increased
judicial security outside of courthouse facilities, including priority
consideration of home intrusion detection systems in the homes of
federal judges. I am hopeful that this amendment that was adopted on
the Senate floor will be supported in the conference on that bill, and
that funds will be provided for home intrusion detection systems for
all federal judges.
(2) Supporting section 13 of H.R. 1751 that would require
consultation and coordination by both the Director of the
Administrative Office of the United States Courts and the Director of
the United States Marshals Service regarding security requirements for
the judicial branch of government. As described throughout this
statement, efforts have been made for decades to obtain information
from the Department and the Marshals Service about our security needs.
The 1982 GAO report included a recommendation that would require the
Director of the Administrative Office of the United States Courts to
cooperate with and assist the Attorney General in defining and
obtaining pertinent information needed to determine each district
court's base-level resource needs for U.S. Marshal personnel, and
apprise Congress during the appropriation and authorization process,
about the nature and status of any problems related to the use of
marshals' resources and actions taken to resolve these problems.
Notwithstanding our best efforts, no information has been provided
by the Department that can help us to evaluate whether we are being
provided with adequate protection. Therefore, a statutory change is
needed to ensure that the judiciary obtains the information it needs to
make recommendations about judicial security to key decision makers. As
the primary user of marshals' services, enactment of this legislative
change will help the judiciary to assess its security needs.
(3) Supporting section 14 of the bill that would establish
significantly greater penalties for the recording of malicious liens
against federal judges. In recent years, members of the federal
judiciary have been victimized by persons seeking to intimidate or
harass them by the filing of false liens against the judge's real or
personal property. These liens are usually filed in an effort to harass
a judge who has presided over a criminal or civil case involving the
filer, or who has otherwise acted against the interests or perceived
interests of the filer, his family, or his acquaintances. These liens
are also filed to harass a judge against whom a civil action has been
initiated by the individual who has filed the lien. Often, such liens
are placed on the property of judges based on the allegation that the
property is at issue in the lawsuit. While the incidences of filing
such liens have occurred in all regions of the country, they are most
prevalent in Washington and other western states.
(4) Supporting firearms training for judges. Threats against
federal judges continue at a disturbing rate. Security of judges is
oftentimes a personal matter. For that reason, the Judicial Conference
supports a proposal to allow judges to carry firearms from state-to-
state. The Judicial Conference does not believe it is prudent for
judges who carry firearms to do so without effective professional
training, or without regular certification of proficiency as a
condition precedent for carrying a weapon. All state and federal law
enforcement officers receive such training and certification. Federal
judges should be required to do so as well. A statutory change would
require, as a legal condition precedent to carrying a firearm, that
judges be trained and certified in a firearms use and safety program
provided by the U.S. Marshals Service with the cooperation of the
Judicial Conference. The Department of Justice and the Marshals Service
do not oppose this initiative.
(5) Supporting section 15 of the bill that would provide emergency
authority to conduct court proceedings outside the territorial
jurisdiction of a court. The need for this legislation has become
apparent following the terrorist attacks of September 11, 2001, and the
impact of these disasters on court operations, in particular in New
York City. In emergency conditions, a federal court facility in an
adjoining district (or circuit) might be more readily and safely
available to court personnel, litigants, jurors and the public than a
facility at a place of holding court within the district. This is
particularly true in major metropolitan areas such as New York,
Washington, D.C., Dallas and Kansas City, where the metropolitan area
includes parts of more than one judicial district. The advent of
electronic court records systems will facilitate implementation of this
authority by providing judges, court staff and attorneys with remote
access to case documents.
(6) Supporting section 17 of the bill that would provide permanent
authorization to redact information from financial disclosure reports
that could endanger the filer. It is important for Congress to act soon
because this essential security measure for federal judges, employees,
and their families will expire on December 31, 2005.
In 1998, Congress amended the Ethics in Government Act to provide
the judiciary with authority to redact financial disclosure reports
before they are released to the public. Congress recognized that the
judiciary faced security risks greater than those of 25 years earlier
when the Ethics in Government Act first became law. Congress
established a process by which the judiciary would consult with the
United States Marshals Service to determine whether information on a
financial disclosure report should be redacted because its release
could jeopardize the life or safety of a judge or judiciary employee.
Not a day goes by without some unauthorized incursion into an
information database containing personal information. These incursions,
when coupled with other personal information already available on the
Internet, give wrongdoers the capability to cause harm as never before.
Were the redaction authority to be removed from the Act, certain
personal information in the financial disclosure reports, not otherwise
widely available, such as the unsecured location where a spouse works
or a child attends school, may be widely publicized through the
Internet and other information outlets. It will become that much harder
to maintain the anonymity that has helped in the past to shield judges
from personal attacks by disgruntled litigants and anti-government
organizations.
We believe that making the redaction authority permanent by
removing the sunset provision from section 105(b)(3)(E) of the Act can
be done without diminishing the basic purpose of the Act--to allow
members of the public to form independent opinions as to the integrity
of government officials. The judiciary recognizes the value of
providing the public with a way to independently judge the conduct of
government officials. The regulations adopted by the Judicial
Conference carefully balance judges' security concerns with the
public's right to view the information contained in financial
disclosure reports. The judiciary has made a concerted effort to ensure
that the authority conferred by section 105(b)(3) is exercised in a
consistent and prudent manner.
While H.R. 1751, which was introduced on April 21, 2005, addresses
most of these issues, the bill also contains various provisions that
expand the application of mandatory minimum sentences. The Judicial
Conference opposes mandatory minimum sentencing provisions because they
undermine the sentencing guideline regime Congress established under
the Sentencing Reform Act of 1984 by preventing the systematic
development of guidelines that reduce unwarranted disparity and provide
proportionality and fairness in punishment. While we recognize the
desire to increase the security of persons associated with the justice
system, we believe that this can be accomplished without resort to the
creation of mandatory minimums.
In addition, section 10 of the bill places specific time frames on
the district courts and courts of appeals in considering writs of
habeas corpus on behalf of a person in state custody for a crime that
involved the killing of a public safety officer. The district court
would have to decide motions for evidentiary hearings, conduct any
evidentiary hearings, and enter a final decision within specific time
periods. The courts of appeals would also have to act within certain
time frames in deciding appeals from orders granting or denying such
writs and deciding whether to grant a petition for rehearing en banc.
The Judicial Conference strongly opposes the statutory imposition of
litigation priority, expediting requirements, or time limitation rules
in specified types of civil cases brought in federal court beyond those
civil actions already identified in 28 U.S.C. Sec. 1657 as warranting
expedited review. Section 1657, which provides that United States
courts shall determine the order in which civil actions are heard,
already recognizes that habeas corpus petitions should be treated as an
exception and must be given expedited consideration. The Judicial
Conference views 28 U.S.C. Sec. 1657 as sufficiently recognizing both
the appropriateness of federal courts generally determining case
management priorities and the desire to expedite consideration of
limited types of actions.
Mr. Chairman, thank you for the opportunity to appear before your
Subcommittee today. Federal judges from throughout the country join me
in expressing our appreciation for the time and attention you and the
Subcommittee's staff have given to our security needs during these
difficult times. We hope that action on the initial steps described
above will help facilitate better communication between the judicial
and executive branches and ultimately lead to an upgraded and improved
United States Marshals Service. I would be pleased to answer any
questions you might have.
ATTACHMENT
JUDICIAL CONFERENCE OF THE UNITED STATES
RESOLUTION ON JUDICIAL SECURITY
ADOPTED MARCH 15, 2005
The brutal murders of the husband and mother of United States Judge
Joan Humphrey Lefkow of the Northern District of Illinois on February
28, 2005, are an attack against the rule of law in the United States.
This tragedy suffered by a member of our judicial family, as well as
the horrific events that occurred on March 11, 2005, in the courthouse
in Fulton County, Georgia, strike at the core of our system of
government. A fair and impartial judiciary is the backbone of a
democracy. These tragic events cannot and will not undermine the
judiciary's essential role in our society.
We, the members of the Judicial Conference, call upon leaders of
the United States Department of Justice and of the United States
Marshals Service (whose primary responsibility is the security of
members of the federal judiciary and their families) to review fully
and expeditiously all aspects of judicial security and, in particular,
security at judges' homes and other locations away from the courthouse.
We also call upon both the legislative and executive branches to
provide adequate funding for this essential function.
Accordingly, the Judicial Conference of the United States declares
that (1) the crisis in off-site judicial security evidenced in part by
the recent deaths of Judge Lefkow's husband and mother is of the
gravest concern to the federal judiciary, and (2) addressing this
matter is of the highest urgency to the Conference and will be the top
priority in the judiciary's discussions with the Attorney General of
the United States and other Justice Department representatives,
including the Director of the United States Marshals Service.
Mr. Coble. Thank you, Your Honor.
Judge Kent, you may proceed with the showing of your film
and then your testimony.
TESTIMONY OF THE HONORABLE CYNTHIA STEVENS KENT, 114TH JUDICIAL
DISTRICT COURT, SMITH COUNTY, TEXAS
Judge Kent. Thank you, Chairman Coble, Ranking Member
Scott, and other Members of the Committee. I am Judge Cynthia
Stevens Kent, and I've been a judge in east Texas for more than
20 years.
Before I begin my testimony--I appreciate the time--I
wanted to share with you a short video of the terror that I
experienced firsthand on February 24, 2005, along with hundreds
of east Texas citizens, at the Smith County Courthouse
shooting. And they'll play the video at this time. The first
part is from a television account, which will give you an
overview. And then, we have a security camera in the first
floor of the courthouse.
[Video played.]
Judge Kent. Now, the next part is from the security camera
on the first floor of the courthouse. I was handling a high-
profile capital case, and had added security in my courtroom
because of an escape risk. Had I not had that, these officers
would not have been at the courthouse to respond to this
situation on the steps of the courthouse, and the assailant
would have been able to enter the courthouse or kill more
people on the streets.
[Security tape footage played, with commentary by Judge
Kent, as follows:]
Judge Kent. That gentleman was John DeNoles, a defense
investigator.
You can see on the top left Ms. Arroyo and her son are
walking, and they're now being shot at right now by Mr. Arroyo.
She is--and he's moved around to the top left. She is now dead.
This is a citizen who was walking into the courthouse, now
running into the courthouse to avoid the shots.
Her son has been shot.
Officer Dolison here is now responding, along with Sergeant
Alan Langston. Officer Dolison and Langston are looking for the
assailant. He's over to the left. Officer Dolison gets shot
four times, seriously injured. I'm glad to report, he is now in
rehabilitation at this time.
All of the--you know, you can't see anything now because
all of the back windows have been shot out of the courthouse.
There were 70 bullets found inside of the courthouse after this
shooting. That's not including the ones shot elsewhere.
This is a citizen who was outside, diving into the
courthouse to avoid the shots.
Sergeant Langston was hiding behind a metal trash can.
We now have Deputy Michael Strickland, Detective Clay
Perrett, and Lt. Marlin Suell, who have come out of my
courtroom on the second floor to respond to the shooting
happening downstairs. They come forward to try to take aim on
the assailant outside, who has now killed a private citizen,
Mr. Wilson.
Officer Suell has now been hit in the head, struck by a
bullet by the assailant. Michael Strickland steps down to
reload. Detective Perrett has now just been shot in the head,
also. Those were grazing shots, and they did survive those
injuries.
Coming now, you're going to see the shooter has now gone to
get in his car. He's starting to drive off in that red truck
there. There is Investigator Jim Castle, who is responding,
being shot at. There is Deputy Brown Carlton, who is now
responding, along with Officer Dustin Rust. These officers rush
out now to try to follow this gentleman, who's shooting as he
goes down the street.
A high-speed chase ensues, and the shooter is killed
several miles down the road, after shooting as he drives down
the streets of Tyler, in Smith County.
This was an extremely serious situation. And we were just
blessed that I happened to be in a high-security case at the
time this occurred, so there were some officers available to
respond to this situation.
And I'll start my testimony at this time.
Mr. Coble. Very well.
Judge Kent. Over the years, I have received numerous death
threats, as have many judges in America. I am currently the
subject of a very serious threat, and would be remiss at this
time not to thank Texas Ranger Kenny Ray, and the Texas
Rangers, the FBI, the ATF, the Tyler Police Department, the
Smith County Sheriff's Office, and the Smith County District
Attorney's Office, for their aggressive and professional
investigation and protection.
One only has to watch the video that we have just seen to
see the bravery and courage of the peace officers that
responded to the Smith County shooting, and also to understand
the need for H.R. 1751 and other legislation to protect judges
and all involved in the judicial system.
As any person in America, it is my personal responsibility
to use common sense in protecting myself against acts of
violence. As a Texan, I take full advantage of my
constitutionally-protected right to self defense. However,
these threats are not just a personal threat against me and my
family. These are acts of domestic terrorism, and are meant to
disrupt our judicial system and our civilization.
I've spoken with many judges in Texas and around the Nation
regarding courthouse and judicial security. As you can see from
these charts, incidents in court are a real present threat. The
National Center for State Courts has graciously assisted me in
assembling some information which might be helpful to each of
you in your decisions on how to protect our judicial system
from disruption and attack.
Last Thursday, in D.C., the National Center, in conjunction
with the National Sheriffs Association, hosted the National
Summit on Court Safety and Security. Also, there is a chart
highlighting their preliminary findings from the summit, which
are included in my full written testimony. Many of these
findings are also included in Congressman Gohmert's H.R. 1751.
Additionally, I have included recommendations and draft
language for amendments for future legislation to enhance the
protection of our judicial system. And I'd like to highlight
just a few of the most important recommendations, several of
which are included in 1751.
First, to make personal security for judges a legislative
and law enforcement priority. Congress should provide funding
for home and court security systems for the Federal judiciary,
and maybe consider a tax credit to State judges who have home
security systems installed or upgraded.
Restrictions on Internet and public dissemination of
personal information concerning judges, law enforcement
officials, jurors, prosecutors, and other court personnel,
should be enacted. And systems should be set up to alert law
enforcement when someone is accessing that information on
judges.
To pass and aggressively prosecute laws which provide
tougher penalties for threats, assaults, and murders of judges.
And I support the provisions of H.R. 1751 which provide for
what you all call mandatory minimum sentencing for threats and
crimes of violence against individuals covered by the bill. We
call them ``punishment ranges'' in Texas.
To establish a grant program to distribute funds to enhance
security for State courts by providing for assessments,
technical assistance, education, and training. And I've
attached some suggested language for this proposal.
To create a national clearinghouse to collect and correlate
Federal and State breaches of security against judges and our
courts, to help develop protocols for aggressively responding
to these threats.
To consider legislation which would allow properly trained
and certified judicial officers to carry personal protection,
even when traveling outside of their home state.
To enhance funding for Federal investigation and
prosecution of prison and street gangs in America.
To amend the definition of the ``local unit of government''
to include State and local courts, to ensure that these courts
are eligible to apply directly for Federal funding for justice-
related programs.
To include in Federal statutory language the mandate that
State courts are included in the planning for the disbursement
of Federal funding administered by State executive agencies.
And finally, to create a small set-aside of the homeland
security funding, to assist State courts in meeting the
requirements of the USA PATRIOT Act of 2001, and providing for
security needs of the State courts. And I've attached some
proposed language for congressional consideration.
Even in America, we certainly face foreign threats against
our way of life. I know that each of you is thoughtful and
serious in your approach to keep us free and safe from these
foreign security threats. The domestic threats against the
judicial system are also very real, and certainly worthy of
your attention and thoughtful legislation. And I thank you for
your time this afternoon.
[The prepared statement of Judge Kent follows:]
Prepared Statement of the Honorable Cynthia Stevens Kent
My name is Cynthia Stevens Kent and I serve as Judge of the 114th
Judicial District Court in Tyler, Smith County, Texas. I have been
invited by the Chair of this Committee, Representative F. James
Sensenbrenner, Jr. of Wisconsin and by the sponsor of H.R. 1751,
Representative Louie Gohmert of Texas, to testify regarding judicial
security issues from the perspective of a State Judge.
I appreciate the invitation and I hope that I can do justice in
expressing some of the security concerns and needs of the state
judiciary in America. The state judiciary appreciates this committee
and Congressman Gohmert's and Congressman Anthony Weiner's interest and
attention to crime, terrorism and security concerns as they relate to
the security of judges, witnesses, jurors, and other court participants
and personnel.
I have served as a judge in East Texas since 1984. From 1984 to
1988 I served as a County Court at Law Judge with general civil
jurisdiction and misdemeanor criminal jurisdiction. From 1989 to the
present I have served as a state district court judge with general
civil jurisdiction and felony criminal jurisdiction and have presided
over thousands of cases. I am a past Chair of the Judicial Section of
the State Bar of Texas and Past Chair of the Texas Center for the
Judiciary, Inc., on the faculty of the National Judicial College and
the Texas Center for the Judiciary. I have been an invited faculty
member at numerous judicial conferences across the United States. I am
privileged to have served our nation and the state of Texas as a member
of the judicial branch of government.
Our American system of self government includes an important
defender of liberty and critical check and balance in the state and
federal judicial system. Recently, there is increased discussion and
debate regarding decision making by the judiciary. Some agree with
certain decisions and others disagree. However, I know that almost all
of the members of the American judiciary are hard working people who
carefully listen to the facts of cases and scholarly apply the laws
passed by the legislatures within the restraints of our various
constitutions. This is my work as a simple country judge.
We have seen the problems of societies without strong and
independent judicial systems. We have seen the disruption of
civilizations where members of the judiciary are threatened, kidnapped,
and killed.
Several years ago in D.C., I attended a National Judicial College
course entitled ``When Justice Fails.'' This course discussed the
threats and intimidation used against the judicial system in Nazi
Germany and the ultimate failure of the judges to protect the rights,
freedoms, liberty and life of the minority and oppositional voices in
the world. Today we see that disruption in some South American
countries whose judges are threatened and killed because someone
disagrees with their decisions or enforcement of the law.
Even in America we certainly face foreign threats against our way
of life. I know that each of you is thoughtful and serious in your
approach to keep us free and safe from those foreign security threats.
The domestic threats against our way of life is also very real and
certainly worthy of your attention and thoughtful legislation.
H.R. 1751, a bipartisan bill, is a thoughtful and wonderful start
to addressing the need to protect judges, prosecutors, jurors,
witnesses, and those who are involved in our judicial systems. It is
proposed federal legislation and so rightly focuses on security for
federal courts and judges. However, there is much that Congress can do
to assist the states in enhancing security for state courts, judges,
and those required to attend court proceedings.
Many of you are aware of the recent, tragic, and much publicized
shooting outside the Smith County courthouse where I work. We are all
aware of the murder of Judge Joan Lefkow's husband and mother and the
murder of Judge Rowland Barnes, his court reporter, his deputy sheriff,
and a federal officer in Atlanta. These are domestic attacks against
individuals and against our system of justice which have occurred in
the last two months.
Over the years, I have received numerous death threats, as have
many judges in America. I am currently the subject of a very serious
threat and I would be remiss not to thank Texas Ranger Kenny Ray, the
F.B.I., ATF, Tyler Police Department, Smith County Sheriff's Office,
and Smith County District Attorney's office for their aggressive and
professional investigation and protection. One only has to watch the
video's I have provided Congressman Gohmert from the February 24, 2005
shooting in Tyler to see the bravery and courage of the peace officers
as they respond to the Smith County shooting. The common threat of
professionalism and valor of these public servants in Tyler, Atlanta,
Chicago, D.C., New York City, and around the nations is remarkable and
we are blessed to have these men and women protecting and serving
America.
Although some of these threats against the judiciary are by
mentally disturbed individuals who would not actually carry out their
threat, many of these threats are very real and imminent concerns.
As any person in America, it is my personal responsibility to use
common sense in protecting myself against acts of violence. As a Texan,
I take full advantage of my Constitutionally protected right to self
defense. However, these threats are not just a personal threat against
me and my family, these are acts of domestic terrorism and are meant to
disrupt our judicial system and our civilization.
I have spoken with many judges in Texas and around the nation
regarding courthouse and judicial security. The National Center for
State Courts has graciously assisted me in assembling some information
which might be helpful to each of you in your decisions on how to
protect our judicial system from disruption and attack. The National
Judicial College and the Texas Center for the Judiciary, Inc. have also
assisted me in gathering information for this presentation. Finally my
twenty years of service as a state judge handling dangerous people and
high profile cases has helped me formulate a number of suggestions for
your committee's consideration.
1. Personal security for judges should be a legislative and
law enforcement priority.
A. Congress should provide funding for home and court
security systems for the federal judiciary.
B. Congress should provide a tax credit to state judges to
have home security systems installed or upgraded.
C. Public access to certain private information on judges
should be limited or pulled, if requested, from public view.
For example diagrams of the judge's homes should not be
included on the website of the local tax appraisal district.
D. Systems should be set up to alert law enforcement when
someone is accessing public information on judges.
2. Laws which provide tougher penalties for threats,
assaults, and murders of judges should be passed and
aggressively prosecuted. I support the provisions of H.R. 1751
which provide mandatory minimum sentences for threats and
crimes of violence against individuals covered by the bill.
3. Establish a grant program to distribute funds to state
courts to enhance security for state courts. This grant program
should include provisions for evaluating court facilities and
procedures, technical assistance to implement needed
improvements, enhanced security equipment, technology and
operations, enhanced information sharing, and to develop and
provide for the education and training of judges, law
enforcement personnel, court house security and court personnel
on security procedures and appropriate responses to a crises
situation
4. A national clearing house should be created to collect and
correlate federal and state breaches of security on judges and
develop protocols for aggressively responding to these threats.
5. Consider federal legislation which would allow properly
trained and certified judicial officers to carry personal
protection when traveling outside their home state.
6. Provide additional funds to the U.S. Marshall's office to
enhance their invited security audits of state, and local
courthouses and availability to assist local law enforcement in
developing security plans and protocols to deal with threats
against the judges, prosecutors, courthouses, jurors,
witnesses, and other court personnel.
7. Enhance funding for federal investigation and prosecution
of prison and street gangs in America. Provide additional
funding for federal officers to assist state officers in the
investigation and prosecution of prison and street gangs.
8. Provide federal judges with emergency communication
devices to law enforcement with GPS capabilities.
9. Provide tax credits to state judges to purchase emergency
communication devices to law enforcement with GPS capabilities.
10. Review and amend rules and regulations of prisons in
handling mail marked ``legal mail'' to protect against
biological terrorism and gang organized threats against the
judiciary.
11. Amend the definition of ``local unit of government'' to
include state and local courts to ensure that these courts are
eligible to apply directly for federal funding for justice
related programs.
12. Include in federal statutory language the mandate that
state courts are included in planning for disbursement of
federal funding administered by state executive agencies.
13. Create a small set-aside of Homeland Security funding to
assist state courts in meeting the requirements of the USA
PATRIOT Act of 2001 and providing for security needs of the
state courts.
The above suggestions are just a few ways in which Congress
could assist in protecting the judiciary and America from
foreign and domestic enemies of freedom. Many of these same
proposal should also extent to jurors, prosecutors, defense
attorneys, witnesses, and court personnel.
When judges are subject to threats, intimidation, and assault, our
entire system of justice is under attack. Although free dialogue and
public debate regarding judges is certainly important and
constitutionally protected, responsible legislators and politicians
should understand that when someone paints with a broad brush the
simple country judges of America can be smeared with the partisan paint
of the day. Inciting the public to distrust, disrespect, or threaten
the members of the judicial system only invites anarchy. There are good
and bad judges just as there are good and bad plumbers. However,
keeping our judges secure and independent helps prevent justice from
failing the designs of our founding fathers and the needs of 2005
America.
ATTACHMENT
Mr. Coble. Thank you, Your Honor.
Mr. McNulty.
TESTIMONY OF THE HONORABLE PAUL J. McNULTY, UNITED STATES
ATTORNEY, EASTERN DISTRICT OF VIRGINIA
Mr. McNulty. Mr. Chairman, it's a delight to be here
today--I should know how to use microphones by now--to see you,
Mr. Chairman, and Mr. Scott, my fellow Virginian. His district
includes large portions of the Eastern District of Virginia.
And Mr. Delahunt, it's nice to see you again, and to meet
Congressman Gohmert.
This subject, of course, is most important, to discuss the
safety of our judges, prosecutors, law enforcement officials,
victims, and witnesses involved in the American judicial
system.
Really, this is about all citizens who come in contact with
the system of justice; because as that video so graphically
depicted, people coming to do business at the courthouse, for
all kinds of reasons, can be subject to harm as a result of
these attacks on the administration of justice. And really,
it's an attack on the rule of law; because our entire way of
life as Americans is built upon the rule of law, and this
requires the safe administration of justice.
I'd like to discuss some of the impact of these incidents
on the Eastern District of Virginia. The recent events--but in
fact, going back to Oklahoma City--have really heightened our
concern for safety at the Federal courthouse in Alexandria,
Virginia. The effects of domestic terrorism, like the Oklahoma
City bombing, and the threat of international terrorism on the
security of the Federal courthouses and U.S. Attorney
facilities around the country, have been felt especially--those
threats have been felt especially in Alexandria.
Our Federal courthouse complex was actually being built
when the Oklahoma City bombing occurred. And as a result,
security upgrades were installed, such as a blast wall, and
intrusion detection devices, and the elimination of public
parking in the building.
Since September 11, however, concern has increased about
threats to the courthouses generally, and to U.S. Attorney
offices. In the Alexandria courthouse complex we have made many
changes. Visible security enhancements were installed,
including jersey walls, hydraulic barriers, camera systems,
screening devices, shelters in place, and chemical detection
systems. In fact, Mr. Chairman, I venture to say that probably
no courthouse in the United States has gone through more
security changes more rapidly than what's happened in
Alexandria over the past 3 years. It's really transformed the
entire neighborhood.
In addition, a court security committee has been in place
for many years in Eastern Virginia. The focus of the committee
is the security of the court complex in Alexandria, as well as
the other judicial facilities in the district. We have a
courthouse in Richmond, a small courthouse in Newport News, and
also in Norfolk.
The purpose of this committee is to discuss security issues
between the Marshals Service and the court family. There are
periodic meetings, chaired by the chief judge, and it gives
opportunities for the court to discuss security concerns and
give approval to proposed security upgrades.
My office has a very close working relationship with the
marshals, and we have participated in the court security
meetings on several occasions. The marshal and I, John Clark,
frequently share threat and event information so that our
individual responses are well coordinated with regard to the
safety and security of our witnesses, the potential threat
level of cases being indicted, and the possible public and
press attention high-profile cases might receive.
On almost a daily basis, as I turn into the garage in the
courthouse, I now see deputy U.S. Marshals dressed in their
tactical gear, armed with semi-automatic weapons, standing
along the sidewalk; in marked contrast to the pre-September 11
security.
And last week was a very interesting example of the threat
faced by those who work in our courthouse in Alexandria. We
were in the midst of a trial involving an individual named Ali
Al-Timimi, who just earlier today was convicted with providing
material support to terrorist organizations, a sequel to our
Virginia Jihad case.
At the same time, we were also in the middle of a trial of
four MS-13 gang members for capital murder of a Federal
witness. This 17-year-old witness was pregnant at the time of
her murder. She was going to testify in another MS-13 murder
case, when she was allegedly stabbed to death. The order to
murder her, as alleged in our indictment--and I say this case
is currently being prosecuted, so I'm speaking just in terms of
the allegations--was given from the jailhouse.
And on top of all of this--the Timimi trial, the MS-13
murder case--we also had the Moussaoui plea, and that occurred
last week, as well. So the Marshals Service and the court
security officers were working especially hard. And we see
these kinds of challenges at the State level, and my testimony
includes some of that. I also discuss in my testimony the
threats faced by judges.
I want to say, in conclusion, Mr. Chairman, that Federal
prosecutors--I really want to speak for just a split second
about the Federal prosecutors' threat. They face enormous
threats in their jobs. And in my testimony, I describe the
percentage, or the numbers of threats against Federal and local
prosecutors, and the kinds of--types of threats they've seen.
And we've had some of these cases in my district, but one
in particular, in Seattle, Washington, in October of 2001,
involved the murder of an Assistant United States Attorney, Tom
Wales. He was working at home, and he was shot by a sniper
through his window of his house. That case has not been solved
yet, and it has been a real wake-up call for all of us in the
U.S. Attorney community.
So in conclusion, Mr. Chairman, I want to thank you for
holding this hearing and for drawing attention to this very
important subject. I think we have to be proactive. We can't
just wait until these crimes occur. And I thank the Committee
for its interest in the subject. I'm happy to answer your
questions.
[The prepared statement of Mr. McNulty follows:]
Prepared Statement of Paul J. McNulty
Mr. Coble. Thank you, Mr. McNulty.
Marshal Clark.
TESTIMONY OF JOHN F. CLARK, UNITED STATES MARSHAL, EASTERN
DISTRICT OF VIRGINIA, APPEARING FOR THE UNITED STATES MARSHALS
SERVICE, DEPARTMENT OF JUSTICE
Mr. Clark. Thank you, Mr. Chairman, Congressman Scott,
Members of the Subcommittee. Thank you for the opportunity to
appear before you today to discuss the role of the United
States Marshals Service in protecting the Federal judiciary. It
is vital to our democracy that those who work within our
judicial system do so without any fear or intimidation. Recent
tragic events in Chicago and Atlanta highlight the need for
securing our courts and protecting those who work in them.
I'm a 22-year veteran of the United States Marshals
Service, and I have personal knowledge of the important task of
protecting judges in our judicial process. During my career, I
have protected Supreme Court justices, district judges,
Government witnesses and jurors, and can attest to the fact
that it is a difficult and demanding job.
Since my appointment by President Bush to serve as United
States Marshal for the Eastern District of Virginia, I have
witnessed firsthand the vital importance of protecting our
Federal judicial process. Just last week, members of my staff
provided a safe and secure environment at the U.S. District
courthouse in Alexandria, as terrorism suspect Zacarias
Moussaoui entered a plea of guilty to his involvement in the 9/
11 terrorist attacks.
During the same week, members of the notorious MS-13 gang
were on trial for their alleged involvement in the killing of a
former gang member. At that trial, deputy marshals were on hand
to ensure that all present were protected.
In yet another matter last week, a jury was being protected
during their deliberations on a terrorism-related case.
In recent years, I have come to the realization that events
such as these are all in a day's work for the men and women of
the United States Marshals Service. Because of this, our
security planning and execution needs to be the very best it
can be, as failure is not an option.
In the Eastern District of Virginia, I am constantly
meeting and consulting with the judges, Mr. McNulty's staff,
the clerk of court, U.S. probation, and others who have a stake
in protecting the judicial process. On a regular basis, court
security and building security meetings are held to review,
assess, and make recommended improvements to our existing
security plans.
The Eastern District of Virginia was the first in the
nation to conduct a terrorism response and readiness drill that
simulated a chemical and biological attack within the Federal
courthouse in Alexandria. It involved a host of local, State,
and Federal emergency response agencies, as well as role-
players from the community and the courthouse employee ranks.
More recently, at the U.S. courthouse in Norfolk, the U.S.
Marshals Service hosted a training exercise that involved
several area police and fire and emergency medical personnel
who came together for a scenario that involved finding and
safely disposing of mock explosive devices within the
courthouse. Exercises like these test our communication
capability and interoperability with first responders and
security plans against real-world possibilities.
We rely heavily on our law enforcement partners, and are
constantly assessing, adjusting, and improving security
measures, and where necessary, to ensure we are as prepared as
possible against those who might threaten or harm judges or
disrupt our judicial process. In short, it's a team effort.
Throughout our 215-year history, the United States Marshals
Service has given the highest priority to our judicial security
mission, and we are proud of our accomplishments. Yet we must
keep ever vigilant and ready. With threats against the
judiciary on the rise, it is vitally important that we all work
together to maintain a safe and secure environment for our
justice system.
I'm now happy to respond to any questions you may have.
[The prepared statement of Mr. Clark follows:]
Prepared Statement of the Honorable John F. Clark
Mr. Coble. Thank you, Dean. We will start our questions
now. And we impose the 5-minute rule against us, as well, so
we'll be ever mindful of the red light.
Let me say this, in view of something Mr. Scott said
earlier, folks. During the questioning, if at any time you feel
that responding--this is an open forum, after all. If you feel
responding would in any way compromise your safety, we can
attend to that subsequently. Hopefully, that won't happen. But
start my 5 minutes, if you will, now.
Mr. McNulty, given the Supreme Court's decision in Booker
Fanfan, making the Federal sentencing guidelines advisory, what
impact, if any, does that decision have upon mandatory
minimums?
Mr. McNulty. Well, I think that mandatory minimums were
already an important tool, among many tools that Federal
prosecutors have, for getting cooperation of witnesses; but
after that decision, I think it makes that tool even more
valuable. Because now, if you are working with an individual
who's going to provide cooperation in an investigation and you
calculate the sentence under the guidelines, there's no
guarantee that the judge will actually impose that sentence.
There'll be--the judge is free to depart from the range and
sentence really at any level.
Mandatory minimums provide a limit on where that sentence
could go. And so I think that we are beginning to see how those
cases that involve mandatory minimums--and that's certainly a
sub-set of all of the cases and all of the types of cooperation
we see--are especially important to us. So I do think that
they've taken on even more significance after Booker Fanfan.
Mr. Coble. Thank you. Mr. Chabot, I think, has a question
to put to Judge Roth, so I will--let me talk to you for a
minute, Marshal Clark, consistent with some of Judge Roth's
testimony. Describe for us, if you will, the resources and any
changes in resources that have occurred in the last few years
in your district regarding personnel, generally.
Mr. Clark. Sure. I currently have an onboard staffing level
of 54 full-time employees. And to highlight how slow the
resource growth has been within the Marshals Service, when I
reported to the district in 1997 as a chief deputy, our full-
time employee ceiling was at 48. So in that length of time, we
have seen a very slight growth.
Another example I like to use sometimes to highlight the
resource issue is that I did have the privilege to serve as a
deputy marshal in the Richmond office during the mid-1980's,
where we had one supervisor and seven deputy marshals. Today,
we have one supervisor and eight deputy marshals. So from the
mid-'80's to current, that's, again, a very slow growth, I
might say.
So resources, while we are able to use them to the fullest
extent possible, that I am pleased to say, there are times when
we do struggle as an agency to provide and meet all of the
resource requirements that sometimes are placed upon us.
For example, additionally within the Eastern District of
Virginia, we often employ outside resources, such as off-duty
sheriff deputies or police officers, to help us handle
prisoners; for example, within the cell block. Last year,
within our district we spent approximately $200,000 to pay for
such part-time help. So overall, the resource issue is
sometimes demanding upon us.
Mr. Coble. Thank you, Marshal. Let me put another question
to you, Marshal. I am told that the rule varies from district
to district and State to State, but FBI agents, DEA agents,
oftentimes are required to surrender their firearm prior to
entering a courtroom. It seems to me that that would--well,
strike that. Let me say it a different way.
I believe if these agents, thoroughly trained in firearm
safety and proficiency, were allowed to retain their firearms,
that might well be a plus, it seems to me. If the outbreak that
occurred in Atlanta, for example, if you had an FBI agent or a
DEA agent along with the Marshals Service in the courtroom,
fully armed, that would be a far better scenario, it seems to
me, than to have an FBI agent unarmed. What do you say to that?
Mr. Clark. Mr. Chairman, that's an interesting question.
And across the country, you're right, there are districts that
do not allow--such as in the Eastern District of Virginia; we
do not allow law enforcement officers--agents, if you will--to
come into the courthouse with a weapon. And we certainly make
no judgment upon their ability, their capability, to safely use
that weapon. However, within the courthouse itself, from the
Marshals Service perspective, we like to know who is armed and
who is not; particularly in a courtroom setting.
And so often we find that agents, particularly Federal
agents who are in the courthouse representing or participating
in the prosecution of their case, sometimes are not dressed in
coat and tie. Or even if they are, we as an agency may not know
that they are agents. And therefore, we often have essentially
an identity situation, of knowing who is friendly to us, and
who is not. So that's one part of the process.
Another part is in, often, cases such as in Eastern
Virginia, the judges themselves have requested that just the
marshals in our court security staff have firearms available to
them.
Mr. Coble. My time has expired. The gentleman from
Virginia.
Mr. Scott. Thank you very much. Judge Roth, you indicated
that you support section 13 of the bill. How would the
difference in the procedure help court security?
Judge Roth. Well, I have described the frustration of the--
--
Mr. Coble. Judge, a little closer to the mike, if you will.
Judge Roth. I'm sorry. I have described the frustration of
the courts in trying to obtain from the Marshals Service
exactly what staffing patterns are needed of deputy marshals in
a court to provide adequate security; and also, whether those
staffing patterns are being met. I think, with the consultation
and coordination between the Director of the Marshals Service
and the Director of the Administrative Office of the Courts, we
could determine appropriate staffing levels for court security
in every district, and we could make sure that those staffing
patterns are being met.
We receive information from marshals around the country
about staffing shortages that they currently have. This is
confidential information. I don't want to give it to you,
because the people who gave us the information can get in
trouble. But there are some serious shortages, including
inadequate staffing in the cell blocks--one deputy marshal
being in charge of a cell block containing 30 or more
prisoners--inadequate day-to-day staffing in the courts. And we
feel that section 13 is important to make sure that we do have
adequate staffing patterns, and that there are sufficient
deputies to fill the required slots.
Mr. Scott. Now, is section 13 enough? Because you still--
wouldn't you still have the bifurcated commitment to not only
the Department of Justice law enforcement, but also to the
Judicial Branch court security?
Judge Roth. I think the bifurcation of responsibilities in
the Marshals Service is very serious. We would hope that, with
the passage of section 13, we could participate with the
Department of Justice in getting adequate funding for the
Marshals Service.
We realize that the Department of Justice must go through
OMB to get their funding, and sometimes that is cut down.
Nevertheless, the judiciary has been responsible for getting
increased funding for a number of functions of the Marshals
Service, including the JSIs, the Judicial Security Inspectors,
for every district. And we feel that if we were on top of the
information, we could help them get the funding that they do
need.
Mr. Scott. Thank you. Mr. McNulty, do you support section
13?
Mr. McNulty. I don't have a position on that. The
Department of Justice hasn't taken a position on this bill, and
so I can't give you any response today.
Mr. Scott. Okay. Marshal Clark, Mr. McNulty mentioned the
courthouses in Richmond and Newport News, both of which are
being constructed. Has the Marshals Service been involved in
making sure that the construction is done in such a way that
security can be enhanced?
Mr. Clark. Yes, we most certainly are. We are involved at
every level of the--I would say, the construction phase;
particularly in conjunction with my headquarters, we work out
all of our space requirements, our security requirements,
issues regarding our cell block, prisoner handling. All of that
is worked completely through with members of our headquarters
staff for the security, necessary security.
Mr. Scott. Several have mentioned the funding and the
staffing. Can somebody indicate to me where this money--is
there money in the bill for additional staffing and additional
grants for security?
Judge Roth. Mr. Scott, there is $12 million in the bill
which would be dedicated primarily toward off-site security for
judges. I think there is more that is needed for an overall
review--oh, I'm sorry, it's in the supplemental. There is need
for an overall review of staffing needs and further requests.
Mr. Scott. Okay. But the bill does not have that funding?
The 12 million--there's money in there for witness protection,
but I didn't see anything for--sorry?
[Discussion off the record.]
Mr. Scott. Grants to the States? Mr. Chairman, the
gentleman from New York, Mr. Weiner, asked me to pose the
question about the appointment process; whether or not we ought
to continue to use the patronage system for appointments of
marshals, rather than a system that would be based more
directly on qualifications. Should the system be changed? The
bill has the appointment change from the President to the
Attorney General. Is that a good idea? And will that enhance
the possibility, or probability, that merit will be the
criteria, rather than partisan politics?
Mr. Clark. Mr. Scott, we certainly have across the Nation
some very qualified and very well trained marshals that have
been appointed throughout the country. However, as a career
employee, I have probably the unique ability to look on sort of
both sides of the fence. I am an appointed position; however,
I'm also a career individual.
And so, it would make sense on the one hand to have
individuals with a career background to assume these positions,
such as the special agents in charge of various other Federal
law enforcement agencies. However, the system as it has been
since 1789 is a tough one to change, as we know.
So with regard to the provision to strike that and have the
appointments made by the Attorney General, I certainly wouldn't
oppose it, and would think that with all measures of fairness
we could find qualified applicants for the position of marshal.
Mr. McNulty. Mr. Scott, I might point out that when I was
working with the Subcommittee that bill was passed by this
Subcommittee twice in the 1990's. It passed once on the House
floor on suspension, and died in the Senate. The second time,
it actually lost on the House floor on a suspension vote, after
extensive opposition by sheriffs and others in the country who
wanted to continue to have those positions available to them.
Mr. Scott. And Mr. Chairman, if I could just pose a
question, and I don't need an answer now. But the gentleman
from New York has apparently sent a letter to the Marshals
Service regarding a decision in staffing in the New York area,
and hasn't received an answer yet. So if Mr. McNulty can see
that a response comes to that letter. I think it's from a judge
in the Eastern District of New York. We'll get you the details
of that, so you can respond.
Mr. McNulty. Okay.
Mr. Coble. The gentleman's time has expired. In order of
appearance, the gentleman from Texas, Mr. Gohmert, is
recognized.
Mr. Gohmert. Thank you, Mr. Chairman. I do appreciate this
important hearing and your calling it; appreciate the prompt
treatment of this bill. As a bit of a response to some of the
things that were said early on in the opening statements, in
this society it is important to have disagreement. It's
important to have criticism. But when it comes to our justice
system, the delineation between criticism and disagreement
should stop clearly--a big line of demarcation between
criticism, disagreement, and threats of violence or violence
against those who are participating.
So I see the justice system as what should be the last
bastion of civility in our society; that as long as we have a
civilized society, the courts ought to be protected all the way
around, be the last place where people can come together, take
turns in stating their position, putting on evidence, making
arguments, and come to a civilized conclusion. And that is why
I think it is so important to protect the system.
When I hear the term ``draconian'' used on some of these
things in the bill, what I see as draconian is having a justice
system in a civilized society where we do not make extremely
severe penalties for disrupting that civilized system and
making clear to everyone that we will protect the system
because that is what a civilized society will do. Otherwise, we
fall into the realm of a Third World nation, where these type
things occur all the time.
Judge Kent, thank you, my friend, for being here. You have
mentioned a number of things in your opening statements. One of
the things addressed--and this is, Judge Roth, in talking with
you earlier--about fictitious liens. A lot of people haven't
heard about that. But there are fictitious liens that have been
filed against judges. Judge Kent, are you familiar with that
personally?
Judge Kent. Well, I know in Texas we have a group, the
Republic of Texas, who doesn't believe Texas is a State, and
they believe that they're an independent republic. And they
have their own court system set up. And they issue judgments
and place liens, and try to record those liens in the
legitimate system there in Texas. And that's caused a lot of
judges a great deal of trouble, with respect to their credit
and financial status, because of these fictitious liens and
judgments that are attempted to be filed against them. So I
think that's an issue. And probably, the Federal judiciary
faces it, also.
Mr. Gohmert. And of course, Judge Kent, you mentioned
threats to you. And of course, all of us that have been
judges--or I guess most of us--have had threats. And often
times, as you've indicated, it is from people who are
incarcerated at the time. And that does seem to be a problem.
You were in the meeting we had with the Federal judges and
other U.S. Marshal, other law enforcement officials, recently.
Are you aware of there being an ongoing problem with people
behind bars, like in State facilities, threatening judges?
Judge Kent. I am personally aware of this situation. And
certainly, I appreciate the remarks earlier about not going
into specifics with respect to that; let law enforcement do
their job. However, that is the situation, particularly with
gangs. There's a growing group of prison gangs, and having
connections on the outside with street gangs, that are involved
in that type of intimidation and threats.
And I know, you know, what we do in court, as the simple
country judge, truly, that I am--I'm awed to be here today--you
know, is to listen attentively, determine the facts of the
case, apply the law as the legislature and the Constitution set
it out. It is not our job to get threatened. It is not our job
to have to deal with that as judges. And so we rely on law
enforcement to help protect us. And we're hopeful that Congress
and the State legislatures will help us with that, to deal with
the prison gangs and deal with those threats with aggressive
prosecution of those individuals.
Mr. Gohmert. We have had situations where people behind
bars in State prison thought it would be more attractive to be
in a Federal penitentiary. And so, they threaten judges,
Federal officials, hoping they'd get transferred.
You're aware, I would take it, that in this bill it
proposes stacking any additional threat, or sentence as a
result of a threat, on top of any State penalty. I thought one
of the suggestions by a Federal judge back in Tyler was
interesting--well, I see my time's out. But that was to put
warnings in State facilities that it won't help you get
transferred to a Federal facility if you threaten or plot
against a judge. It will be stacked, and you won't start doing
that time until you finish your State time.
My question was going to be if you thought that would be
helpful.
Judge Kent. And I'm the personal beneficiary of that help.
I recently had one of the other threats, and the gentleman was
prosecuted in the Federal courts because he used the mail to
send the threat. And the Federal judge did stack the sentence.
And I think that sent a strong message. An amazing thing
happened: from that penitentiary unit, which I had received
several threats from, they've stopped from that unit. So maybe
the message got out.
Mr. Gohmert. Thanks, Judge Kent.
Thank you, Mr. Chairman.
Mr. Coble. The gentleman's time has expired.
The gentleman from Massachusetts.
Mr. Delahunt. Thank you, Mr. Chairman. And just to make an
observation, Mr. Chairman, about your comment about arming of
DEA agents and other law enforcement officials in the
courtroom, recently we had a tragedy in the State of Rhode
Island--I come from New England--where a local police detective
had his weapon, his handgun, taken from him, and he was killed
by a defendant.
So I think, if I hear the marshal correctly--and you can
tell me if I'm misinterpreting you--that sometimes those
decisions are best left to the individuals in charge of
security in a particular courthouse.
Mr. Clark. I would certainly agree with that; that it is
often best left to the individual courts. For example, I should
clarify further that in the Eastern District of Virginia, for
example, we already have worked out with our local law
enforcement first responders that, obviously, if there is an
emergency within the courthouse or some type of an incident,
that any first responders, obviously, would be allowed to come
and go from the court. And it is also difficult sometimes, in
working through the policies with the judges themselves.
Mr. Delahunt. Right. And it clearly has to be coordinated
between the court, the service. And some sort of an accounting
has to be made for whom is permitted to carry a firearm in the
courthouse. But again, I would suggest this is not something
that we should rush into, in terms of taking action here.
But I want to get to the testimony of Judge Roth, and
congratulate you for your candor.
Judge Roth. Thank you.
Mr. Delahunt. We often hear, or we heard recently about
Congress holding judges accountable. I think what you have
effectively done here today is challenged us to be accountable.
Because I think we all share as a goal the protection of the
judiciary. Clearly, without an independent judiciary in this
country, one that is not susceptible to influence of any sort,
our viable, healthy democracy will erode. So you have been very
candid and very frank in your testimony. It's refreshing. I
suspect that you are a person that tends to be very frank and
candid under any circumstances.
But I think it's important that we read the testimony of
Judge Roth. Again, to emphasize it and underscore it, ``It
seems to my Committee that the Marshals Service never gets the
resources it needs to get the job done. The Executive Branch
consistently recommends slashing funds before the requests even
make their way to Congress...Some people believe that the
Department of Justice will never support full resource levels
for the Marshals Service, in spite of any Department of Justice
statements to the contrary. Therefore, I am seeking your
assistance in helping to protect the Federal judiciary in
several ways.''
You then further state, ``The Department refuses to share
any information about Marshals Service staffing levels and
formulas, or to consider suggestions or change with us.'' Let
me be really clear. The Judicial Conference has never--at
least, in your experience--consulted with the Director of the
Marshals Service about a needs assessment for security for
judges. Is that what I can interpret?
Judge Roth. We have asked for that information. We have not
obtained it. We feel----
Mr. Delahunt. Well, you know, I'll tell you something, Mr.
Chairman. I think that is unconscionable.
And I think you indicated earlier that you were--you
noticed that the Director of the Marshals Service was not here
today.
Judge Roth. Right.
Mr. Delahunt. And I'm sure--Mr. Clark, I'm sure you are a
career employee that performs your service well. But this just
doesn't stand. This is indeed something that I cannot--I just
can't imagine. You shock me with your testimony.
And I would hope that the gentleman from Texas would
consider an amendment when the time comes, if this bill does go
to markup, an amendment that would mandate not just simply
consultation--and maybe I should ask for the opinion of Mr.
McNulty, since he's here representing the Executive Branch--
mandate a needs assessment for the entire Federal judiciary, in
a report to Congress, a report to this Judiciary Committee, to
ensure that that plan is implemented, both with funding and the
resources necessary. Otherwise, we're just sitting here,
wasting our time.
Judge Roth. We would support----
Mr. Delahunt. It starts with that.
Judge Roth. We would support such an effort wholeheartedly,
enthusiastically.
Mr. Delahunt. Mr. McNulty, what's the position of the
Executive Branch?
Mr. McNulty. Well, I can't give you the position of the
Executive Branch.
Mr. Delahunt. Well, what's your position, Mr. McNulty?
Mr. McNulty. Right, as the U.S. Attorney in Virginia. But
from my limited perspective of what I've observed--and by the
way, I appreciate very much what you're saying, and I think
you've raised a very important point.
I know that Attorney General Gonzales has been working
closely with the judiciary in the last--since he's been in
office, in the last 2 months. I think they've had a number of
meetings with the conference on this subject. I think he has
established a working group within the Department to see how we
can better provide security to the judiciary. So this is a
subject that I know he cares about deeply.
Mr. Delahunt. Well, that's very good news. And would you
please convey back to the Attorney General my remarks and my
observations? And I would hope, okay, that the Department would
support an amendment to the bill filed by Mr. Weiner and our
freshman Member of the judiciary, former Judge Gohmert; because
I just think that is intolerable, particularly given what we
have seen occurred.
We don't even have a needs assessment. This isn't even
about providing the necessary resources. We're operating in the
dark here. And look what's happened. And what are we going to
do? Just simply sit around and pass mandatory sentences, and
think that that's going to deter and protect these men and
women who sit up on that bench?
Mr. Gohmert. Will the gentleman yield?
Mr. Delahunt. I yield.
Mr. Gohmert. Mr. Delahunt, I appreciate your comments. And
that's why we added section 13 in here. Maybe it does need to
go forward--I mean further than it does.
Mr. Delahunt. I want a report back to this Committee.
Mr. Gohmert. But I was very concerned when I found from
Federal judges that there was no consultation there, or not
adequate. And I thought that was abysmal. And that's why 13 is
there. If it needs to go farther, then I'm open to do what we
need to.
Mr. Delahunt. If the Chair would indulge me for an
additional 30 seconds, I would suggest strongly, as the
principal sponsor of this legislation, that written within
section 113 [sic]--and I'd be happy to work with the
gentleman--that we mandate a report to the Congress, to ensure
the implementation of a safety plan for Federal judges.
And we can do it on an annual basis. We could work out the
details to that effect. But there's got to be an accountability
here, that clearly is lacking.
Mr. Coble. I thank the gentleman. I was going to say to the
gentleman from Texas, I believe yours and Mr. Weiner's bill at
least addresses in part some of Mr. Delahunt's concerns. And
perhaps you all can get together subsequently to that end.
The gentleman from Ohio, Mr. Chabot.
Mr. Chabot. Thank you, Mr. Chairman. I want to first
apologize to the panel for not having been here at the
beginning of the testimony. I will review all the testimony
that we have in writing. I was participating in a news
conference on a bill that's going to be coming before the House
this week, CIANA [ph], which passed through the Judiciary
Committee and through my Subcommittee, the Subcommittee on the
Constitution. So I want to apologize for that.
Now, I might have missed the Chairman saying this, so if
I'm repeating I apologize to him for doing that. But I wanted
to congratulate Mr. McNulty for his new position. And I can
just say that when he was a staff member of the Judiciary
Committee he did a tremendous job, through some difficult
times, as he may recall; some that were very national issues
and very divisive issues, and that we're still fighting about
up here sometimes.
Mr. Coble. Will the gentleman suspend?
Mr. Chabot. I'll yield, yes.
Mr. Coble. In order to suck up to the U.S. Attorney, I,
too, want to congratulate. [Laughter.]
I failed to do that.
Mr. McNulty. The bottom of my district does touch North
Carolina, so that's good.
Mr. Chabot. Anybody else want to suck up here, while we're
at it?
But really, you did a wonderful job for us then, and I'm
sure you're going to do a tremendous job in this new position.
So congratulations. It couldn't have gone to a better person.
My question is to Judge Roth and to Mr. Clark here. And let
me preface this by saying that I represent Cincinnati. And the
Chief Judge of the Federal District Court there for the
Southern District of Ohio is Sandra Beckwith, who I've known
for many years. She was a judge in Hamilton County, both at the
municipal level and then the common pleas level. And then she
went to the--became a county commissioner there. And she and I
served on the county commission for four or five years
together. So I've known her very well. And we've kept in touch
on a number of these issues relative to the courts, and that's
been a great help to me, and I think to her as well.
But Judge Beckwith has indicated her concern about the
security in and around the Federal courthouse in Cincinnati.
The General Marshal Service issued an RWA approval to the GSA
in the amount of $278,000, to begin the project in August 2000.
Subsequently, an RWA in the amount of $150,000 was issued to
complete the project.
However, GSA and the Marshals Service determined that an
extra $230,000 was needed to cover the entire cost. And it was
expected that the security system would be funded, approved,
and built by this year, by 2005. The RWA will expire in August,
and the original funds may not be available to them. And so
that's just to give you a little background on the security
issue that we've been working with there for some time.
And Judge Roth, in your testimony you referred to what you
consider the lack of proper coordination and consultation
between the U.S. Marshals and the Judicial Conference with
respect to resource allocation and security needs. Mr. Clark,
for the U.S. Marshals office, paints a somewhat different
picture.
Now, maybe what we have is, you know, a difference in
perceptions to some degree. But I would ask both you, Judge
Roth, and you, Marshal Clark, to each address the coordination
and information sharing issue. How much already occurs, and
what, if anything, needs to be done to improve the coordination
and consultation between the Judicial Conference and the
marshals?
Now, the bill includes language aimed at ensuring such
coordination and consultation between the Administrative Office
of the U.S. Courts and the Marshals Service. If enacted, how do
you envision the process would work? And what specific changes
do you believe will occur, or should occur? And either one of
you is free to go first on that. Judge Roth?
Judge Roth. If I could begin, let me say first of all we
are very aware of the problem you speak of in Cincinnati. That
has been--is being worked on, and will be solved within the
next 10 days.
Mr. Chabot. Great. Thank you very much.
Judge Roth. So Judge Beckwith, I think, will be relieved
with that resolution.
The installation of security equipment in courthouses,
there has been very good coordination between the Marshals
Service and the courts on that instance. And that is not what
we're concerned about in the consultation. The requests for
security equipment upgrades in existing courthouses and new
courthouses is worked out between the Marshals Service and the
Administrative Office of the Courts, and is approved by my
Committee in our budget requests every year.
Our real concern is about the staffing of the Marshals
Service. What is needed in a given district is deputy United
States marshals to provide adequate court security in that
district? How is that formula established? What does that
formula call for? And is that formula being met?
That is what we are primarily concerned about. That is what
we would see in the terms ``consult'' and ``coordinate.'' And
we would hope that that consulting and coordination, as I
mentioned, would then lead to the adequate funding to staff the
protection necessary for each of the districts.
Mr. Chabot. Okay. Thank you very much, Judge. Marshal
Clark?
Mr. Clark. Congressman Chabot, within the Eastern District
of Virginia, I do coordinate frequently with two members that
are on the Judicial Facilities and Security Committee. We have
Judge Henry Hudson, who serves in our Richmond office, and
Judge Henry Morgan, who serves in the Norfolk division.
And so I do from time to time get a chance to talk to them
about some of the issues that are both local in scope and
national in scope. And they frequently--particularly Judge
Hudson--will call me to seek my advice or my input on some of
the issues that are before the Committee.
I would certainly agree with Judge Roth that wherever we
can collectively share information, determine what works best
in terms of staffing levels, from a local perspective I would
certainly support that.
Mr. Chabot. Okay. Thank you very much. Thank you, Mr.
Chairman.
Mr. Coble. I thank the Chairman.
I have a couple of brief questions. We'll have sort of a
modified second round here. Judge Roth, I know you're the
chairwoman related to security, so let me ask you about witness
intimidation. How significant a problem is it in the Federal
courts? And have you seen an increase or a decrease in recent
months?
Judge Roth. That is not really a topic that is within the
jurisdiction of my Committee. I will be very happy to get--
compile that information and get it to you for the record.
Mr. Coble. If you would do that, I would appreciate--I'd be
interested to know that.
Judge Kent, you mentioned in your testimony a current
threat imposed against another judge in Texas. Can you describe
the nature of the threat and the security measures, if any,
that were taken? Or if you can't do that, I understand that.
Judge Kent. Well, as I, and as the minority Member, said,
to keep our remarks with respect to security issues maybe close
to the vest. But there are specific threats that are made at a
number of judges. We had one in our area, you know, outside of
myself, other judges, that are extremely serious threats.
We have in the past--I have to compliment the FBI, because
the FBI has been very aggressive in helping when there are
threats that involve even State judicial members, to help in
the investigation of that; along with the Texas Rangers and
local law enforcement.
But it is important--and you asked about witnesses--those
threats against judges and witnesses, that there is aggressive
attention to that. Witnesses have--and particularly after our
courthouse shooting that you saw, we had witnesses saying they
were not going to come and testify. And the district attorney's
office had to really talk with them and explain to them how we
were going to keep them safe through added security members in
our courthouse, before they would even come to court and
testify on misdemeanor cases that were set for trial. Jurors
that said they were not going to come and serve as jurors
because of what they perceived, the lack of security.
So some of the recommendations by the National Center for
State Courts, I think, are excellent, where there can be some
help to the State courts in these security issues.
Mr. Coble. So I take it, Your Honor, you would favor
assistance to States in developing witness protection programs?
Judge Kent. Absolutely. I think it would help with the
witness protection programs, and I think there are some other
recommendations that could help with general security measures
for State courts.
Mr. Coble. I thank you.
The gentleman from Virginia.
Mr. Scott. Thank you, Mr. Chairman. Does witness
protection--does that include protecting witnesses in addition
to the witness protection plan that we see where they
disappear, get a new identity? Are there other witness
protections that need to be funded?
Judge Kent. I think probably these gentlemen would know
better than I.
Mr. McNulty. Well, there are different ways to secure the
safety of witnesses. On a short-term basis, there are
safehouses. And my experience, the investigative agency--let's
take the FBI, for example--will take responsibility for
securing the safety of a witness on a short-term basis. Perhaps
it's over the course of a weekend, or just in a period of time
preceding trial.
Mr. Scott. And that takes funding.
Mr. McNulty. That takes some funding, though limited
funding. And we have run into some recent issues, because of
budget cutbacks, on that score.
What the Marshals Service, of course, does is, if those
witnesses really are going to be facing severe threats over a
long time, then these investigative agencies essentially
nominate someone for the witness protection program. They
sponsor them. And the Marshals Service gives them a new
identity and puts them into the full program.
You really have to--and I'll speak for John Clark for a
moment. You really have to decide, though, up front, are you
going to do it or not. Because halfway measures create more
problems.
Mr. Scott. A lot of the bill adds, as we have pointed out,
mandatory minimums. Are there changes in actually definitions
of criminal law that are in the bill, or is it just mostly the
increased penalty? Are there any things that are in the bill
that would be illegal that are not legal now--that are not
illegal now, that would be illegal under the legislation?
Mr. McNulty. I think it does expand Federal jurisdiction in
some places. I'm not an expert on the legislation. I looked it
over quickly. But as I looked it over, I thought there were
some places where there were provisions that expanded Federal
jurisdiction; particularly in relation to law enforcement
officers at the local level and potential Federal prosecutions
involving acts of violence against----
Mr. Scott. I know, but all of these would have been illegal
under every State law.
Mr. McNulty. Oh, creating--you mean proscribing conduct
that's not prohibited anywhere?
Mr. Scott. Right.
Mr. McNulty. I'm not--I have not----
Mr. Scott. You don't think so?
Mr. McNulty. Didn't see anything like that. And I wouldn't
know for sure, because you have to compare it to State law.
Mr. Scott. Well, you know, we've kind of talked about this.
It just seems to some of us that increasing a penalty for
things that are already illegal isn't going to have a big
effect on people's behavior. I mean, a guy that shot--what?--
three, four people, and then died in a shoot-out, isn't going
to be deterred by a mandatory minimum sentence.
And if we're not proscribing anything that's not now
illegal--there are a couple of things in here, the Internet,
the judges' financial disclosure statements, some others, that
I think are technical, that I think we could probably work
with.
There's going to be a problem with the Internet because how
you can control--we've had other pieces of legislation that
have pointed out how difficult it is to regulate the Internet,
because it is an international phenomenon, and the server may
be about anywhere, and everybody that has access to the
Internet has access to that. And the Department of Justice
can't really do much for a server that's physically situated
outside of the country.
With that, Mr. Chairman, I'll yield back.
Mr. Coble. I thank the gentleman.
The gentleman from Texas.
Mr. Gohmert. Thank you, Mr. Chairman. One comment I would
like to address, too, though. I constantly hear people who are
against death penalties being imposed make the comment there's
no effect on murder. And I would concede that where you take 20
years to implement the capital punishment it's not much
deterrent. Having been appointed back in the '80's to represent
a capital murder defendant who was convicted, and having done
an excellent job on his behalf, I'm quite familiar with how
that all works. But these things are a deterrent.
And when you mentioned someone who was killed in the
process after shooting three or four people not being deterred
by enhanced penalties, I would point out to the witnesses, to
my colleagues in Congress, this man went to the trouble of
putting on body armor. He was thinking about his own well-being
after killing these other people. And if he will go to the
extent to put on body armor, thinking about his own well-being,
then the thought process would also extend to, ``What's going
to happen to me if I'm caught?'' So I think it can have a
deterrent effect. And that's why we're pushing forward.
A couple of other areas I wanted to touch on. Tax credit
for State judges was mentioned; and also had it mentioned by a
Federal judge that, gosh, if we're not going to give them the
support, the finances, to have off-site security for their
cars, their homes, at least give them a tax credit. And I'm all
for that, and don't mind pushing a bill to that effect.
We'd need to do that separately, because our friend,
Chairman Thomas, would probably want to have something to say
about that. But that would be separate from this bill, and
that's something that still might be possible. Mandatory
minimums, I think we do owe it to the judges, the AUSA that was
mentioned. They deserve to have home protection, and we need to
do what we can to help them.
The witness program, I'd point Members to that; that
witness protection grant money being available in the bill.
Also, there was mention earlier about writs. I do believe
justice delayed is justice denied. And this does make a
provision for moving writs along. And I would direct my dear
friends and colleagues to the fact that, for example, the Ninth
Circuit is known for taking writs and sitting on them, and
sitting on them, and sitting on them, and sitting on them. And
sometimes, giving people, especially attorneys, deadlines--even
judges--is extremely helpful. So that's why we wanted that to
be a part of the bill, as well.
I would like--you know, you've made statements, each of the
four of you. In the time I've got left, I would really--since
this is not a markup, I'd like your input. You've heard
questions. You've heard each other testify. Starting with Judge
Roth, is there anything else that you would like us to
consider, or have in mind, or perhaps supplement in this bill?
Judge Roth. I think the section 13, which we have discussed
extensively. I would like to point out that there are other
aspects of that that concern me; not just the staffing pattern
but, for instance, the Office of Protective Intelligence at the
Marshals Service. Our understanding is this is a new office. It
has only three people. We are concerned whether that office is
going to take the proactive role necessary in coordination with
the other law enforcement agencies to determine what the
threats are to judges.
We have been concerned that the Marshals Service does not
think there's a threat unless a judge receives a letter or
someone says, ``I'm going to do you harm.'' And we think--we
believe that there must be a greater proactive activity by the
Marshals Service in their protective intelligence, to determine
where threats may exist and what may be done in order to
protect the courts from those threats. And we feel that the
consultation and coordination should extend into that area.
Mr. Gohmert. Okay. Thank you, Judge.
Judge Kent. Congressman Gohmert--Judge Gohmert--other than
my recommendations about being able to carry my gun outside of
Texas, to create a small set-aside of Homeland Security funding
to assist the State courts in meeting the requirements of the
USA PATRIOT Act. That can provide additional security needs for
State courts. So to look at the ways that Congress can perhaps
assess and help State courts in their security needs.
Mr. Gohmert. Okay. Thank you, Judge. Mr. McNulty?
Mr. McNulty. Well, I would defer to the President's budget
request for the Marshals Service. But I have to say that this
Committee, apart from this legislation, may want to work
closely with the Appropriations Committee, to look at the
adequacy of resources.
The Marshals Service does a tremendous amount of good with
the limited resources they have. And when Marshal Clark was
describing the lack of growth in his office, I was struck by
how that compares to the growth of prosecutors in my office,
the number of detainees. Since I've been U.S. Attorney for
three and a half years, I think we went from a population of
about 500 people being detained on a given day, pre-trial, to--
what?--800 now, right, John?
Mr. Clark. That's correct, if you look at the workload
measures over the last few years, compared to, perhaps,
staffing increases that other agencies have received. And
certainly, the Marshals Service--and I'm speaking, again, from
the Eastern District of Virginia; where, again, when I was a
deputy marshal in Richmond in the mid-'80's, you practically
knew all the prisoners by name. I mean, they were--there were
not too many. And now, just in a place like Richmond, we're
seeing the population approaching 300.
So to not have the growth level to keep up with the
workload demands is certainly, and can be, a burden. So I would
certainly support--while the President's budget has been
helpful, I would also say that anything the Committee can do to
help us there would be appreciated.
Mr. Gohmert. Thank you.
Mr. Coble. I thank the gentleman. We're pleased to have the
gentlelady from Texas joining us. Good to see you, Ms. Jackson
Lee.
I'm going to ask the gentleman from Texas if he will assume
the Chair. I have got North Carolina constituents who are
waiting to bark at me. And as I depart, I want to thank the
panel for your time and your contribution today. And I want to
thank those in the audience for having stayed around until the
last dog has been hanged. I think this has been a good hearing.
And we will revisit it again.
Mr. Gohmert. See you later.
Mr. Gohmert [presiding]. Thank you, Mr. Chairman.
At this time, the gentlelady from Texas.
Ms. Jackson Lee. I yield to Mr. Delahunt. I will follow
him.
Mr. Gohmert. Very well.
Mr. Delahunt. Yes, thank you, Mr. Chairman. Just a few
questions for Judge Kent. And thank you for your testimony. I'm
sure that was a very difficult experience. What has been the
response--obviously, we're a Nation that embraces the principal
of federalism. And there are clear responsibilities on the part
of the State government. What has been the response of the
Texas legislature to these security issues? If you could, give
it just maybe a minute.
Judge Kent. Yes. I think that the Texas legislature
certainly is involved with a number of the issues that they're
trying to deal with in a short time. They meet a very short
time every 2 years.
Mr. Delahunt. Have they--excuse me. I'm going to interrupt
you, because the time is moving.
Judge Kent. Yes.
Mr. Delahunt. Have they done anything at all, in terms of
providing you the adequate resources?
Judge Kent. The only thing that they have done in the past
dealing with the lien situation is they've passed some
legislation dealing with that. Dealing with resources on the
local level, they do not fund the local counties. That's up to
the county commissioners. And our county commissioners are
evaluating our security after this situation.
Mr. Delahunt. Okay. When did this incident occur?
Judge Kent. February 24 of this year.
Mr. Delahunt. February 24. So it's only several months.
Judge Kent. Absolutely.
Mr. Delahunt. Are there proposals before the county
commission now?
Judge Kent. They are right now doing a security audit. And
we've had some help from the U.S. Marshals Department to come
over and help us with that security audit, to design better
procedures to, hopefully, increase----
Mr. Delahunt. Is part of their work looking at the staffing
needs?
Judge Kent. Absolutely. The staffing needs at the
courthouse.
Mr. Delahunt. Okay. And have they come forward with, as we
say, some hard cash?
Judge Kent. They have come forward with promises to look at
the situation and see if the cash is available.
Mr. Delahunt. Okay. Again, you know, with all due respect
to the Federal role here, we like to think we respect States'
rights and, you know, this concept of devolution, because we're
looking to the States to step up in many other categories. And
I would think that this is one that we would be looking to the
county commissioners.
Judge Kent. And I think the States do have to provide the
boots-on-the-ground security. But I think there's a number of
things Congress can do that will help enhance judicial
security, other than providing that minute-minute funding.
Mr. Delahunt. Did I hear you say, was this a--how did this
individual unload 70 rounds?
Judge Kent. He had, they said, an AK-47. He had a Mach-90,
two clips; a high-powered rifle in his car; over 200 rounds in
his car, a----
Mr. Delahunt. This was an automatic?
Judge Kent. Semi-automatic. A bulletproof vest, and a flack
jacket. He was prepared for war, and he brought it to the
courthouse.
Mr. Delahunt. Uh-huh. Uh-huh.
Judge Kent. But luckily, we had some gun power to return
fire.
Mr. Delahunt. Right. You know, my friend from Texas here
talks about the death penalty. You know, clearly, different
States have different perspectives on that particular issue, as
do I, you know. And as it pertains to Texas, what were the
number of executions in the past year?
Judge Kent. Each year, it varies. I've seen some years
where we've had 20, 30 executions. This year has not been
nearly as high, up to this point, because it depends on the
facts of the particular cases and the appeals that go through.
We carefully look at the cases.
Mr. Delahunt. Right. In terms of the number of homicides in
Texas, what's your homicide rate in Texas, per hundred thousand
of population?
Judge Kent. I wish this simple country judge could tell you
that. I'm sorry, I don't----
Mr. Delahunt. Judge Kent, I don't think you're a simple
country judge. [Laughter.]
Judge Kent. I have--I have to beg to differ.
Mr. Delahunt. I think you're a very smart country judge.
But you're not simple.
Judge Kent. I would tell you that the vast majority of
murders in Texas are not prosecuted as capital murders. Capital
murders are truly reserved for prosecution for the very, very
narrow----
Mr. Delahunt. I'm not even--I guess I'm really debating,
through you, my friend and colleague who's sitting in the Chair
right now----
Judge Kent. Okay.
Mr. Delahunt.--about the deterrence effect of the death
penalty.
Judge Kent. Well, it deters that one person.
Mr. Delahunt. Well, it does. But when one examines--and I
would hope that maybe we could ask the staff of the Committee,
both majority and minority counsel, to do a comparison between
the homicide rate in the State of Texas, and I'll take my own
State, the Commonwealth of Massachusetts. We're a non-capital-
punishment State.
And I would suggest to you--and I'm guessing right now--but
I'd suggest to you that the incidence of homicide in the
Commonwealth of Massachusetts, which has no death penalty, and
the State of Texas, which has, I understand, the highest rate
of executions in the country--there'd be a considerable
difference, in terms of the incidence of homicide per one
hundred thousand population. And I guess that would be the
empirical data that I would suggest that the death penalty
isn't necessarily a deterrent.
Judge Kent. Well, and I--and, look, I'm not here to stand
up for or against the death penalty.
Mr. Delahunt. Right.
Judge Kent. I really believe that that is an issue best
left to the State legislature, as you said, to let each State
determine what they think their law should be in this.
Mr. Delahunt. Well, I wish you would convey that particular
sentiment to members of the--from Texas, my Texas colleagues
here that sit on the Judiciary Committee. Thank you.
Mr. McNulty. Congressman? Mr. Delahunt, I think Virginia
has a lower, probably, homicide rate than Massachusetts or
Texas, and does have capital punishment.
Mr. Delahunt. Well, Mr. McNulty, then, let's take that--
I'll take that challenge.
Mr. McNulty. Okay.
Mr. Delahunt. I think--seriously, I think because there are
so many mandatory sentences and--if the Chair would indulge me
for an additional minute?
Mr. Gohmert. I will.
Mr. Delahunt. I think, you know, many of us feel very
strongly in terms of a common and shared goal, which is to
protect the judiciary and to protect witnesses and to make sure
our judicial system is healthy and viable. But many of us, for
a variety of different reasons--in my case, because as a State
prosecutor for 22 years in a major metropolitan jurisdiction,
you know, I did not see the benefit of mandatory sentencing;
other than possibly, as the U.S. Attorney indicates, to develop
an informant. And even then, there are other and better ways to
do it, I would respectfully suggest.
But simply to implicate in every piece of criminal--of
crime legislation and criminal justice legislation that comes
before this Committee, the death penalty and mandatory
sentencing, it just doesn't work.
And I know my friend, the former judge from Texas,
disagrees with that. But maybe what we ought to do, not just on
this particular legislation, but to have both our staffs work
together to try to make a good-faith effort in determining the
efficacy and effectiveness of the death penalty and mandatory
sentencing, and start from a common position.
Because, like I said, I think that there are--I think
there's much in this particular proposal that I can support.
Unfortunately, you know, I dare say there are aspects of it
that I can't.
Mr. Gohmert. Thank you. The time of the gentlelady from
Texas has expired. She'd been kind enough to yield to her
colleague. Did you have a question?
Ms. Jackson Lee. I didn't yield. I just let him go in front
of me.
Mr. Gohmert. Oh----
Ms. Jackson Lee. I deferred.
Mr. Gohmert. Deferred. I see.
Ms. Jackson Lee. That's more appropriate. So I'm prepared
to go at this time for my 5 minutes.
Mr. Gohmert. All right, you may proceed for 5 minutes.
Ms. Jackson Lee. I thank the Chairman very much. And I
thank the witnesses for their presentation and having the
opportunity to look at your testimony. I was delayed at another
meeting. And I thank you for your presence here.
Mr. Chairman, if I might just offer--first of all, I'd like
to ask unanimous consent for my statement to be included in the
record.
Mr. Gohmert. Hearing no objection, it will be done.
Ms. Jackson Lee. Thank you, Mr. Chairman.
Let me say to both of the judges; and certainly, welcome
back Paul, and we've watched your work, and it's been a busy
time in Virginia; and certainly, to the U.S. Marshal, who we
worked closely with in the Southern District, of course, a very
busy district; that we appreciate your service. Not only your
service, but the different times in which you have to operate.
I don't think there's any Member here that would not
enthusiastically--sadly, of course, because of what we have
finally reached in terms of violence inside the courthouse and
courtroom and the perimeters--to support a system or a review
of the law, to ensure that we protect the Nation's courts, both
State and Federal, which I think are crucial.
The tragedy in Chicago, the tragedy in your city, Judge
Kent, the tragedy in Atlanta, Georgia, is intolerable. And we
absolutely abhor it. And I believe we can fix it.
I hope the Chairman, who has authored this bill, will
consider bills that have been written by Members on the other
side of the aisle--one in particular that I am presently
writing--so that this can be a bipartisan effort. And I think
if we do it that way, we will protect the Nation's courts, both
State and Federal.
I happen to think that, although the tenth amendment is a
very strong amendment, that there are some issues that we must
collaborate with the States and work on. Because the sanctity
of the judicial system cannot be, if you will, held in high
esteem or protected, if it's not protected throughout our
system; local courts--which I served on, a city court in
Houston--State courts, and of course, Federal and to the
Supreme Court of the United States.
It would help me, Judge Kent, if you would just--this
individual lost his life who was armed beyond even our
imagination, was there any motive determined? I understand two
individuals lost their lives, a woman and a child. Did they
happen to be related, or did I have the wrong information on
that?
Judge Kent. Well, it's close, Congresswoman. And I
appreciate your asking the question with respect to that. The
gentleman--the immediate motive was that he was involved in a
child support custody hearing that was supposed to take place
in just a few minutes after the shooting. And he didn't want to
pay his child support. And so he killed his ex-wife; he shot
his son. This was the 21-year-old son, not the four--the 10-
year-old that the child support dealt with. He shot his son in
the leg. The son survived.
It was a civilian who was shooting at him to stop him from
this murderous rampage he was going on; shot him four times.
However, he had a bulletproof vest on, and so the bullets did
not stop him. He turned and killed the civilian. Then the law
enforcement came out of the courthouse, out of my courtroom and
Judge Rodgers' courtroom, and repelled the violence.
So he was heavily armed, and he was coming into that
courthouse, if he hadn't killed her outside. And he would have
killed more people in our town, had law enforcement not been
able to respond to it.
Ms. Jackson Lee. So obviously, we need to work
collaboratively on protecting courts, regardless of the
jurisdiction, is my perspective on this.
Let me pose a question to John Clark. I noticed that you've
only got a 6 percent increase in your budget in fiscal year
2006. I don't know how you believe that that's going to be
effective in the mass of work that you all do and, of course,
in the increased sensitivity to the protecting of courts. Is
that a sufficient amount?
Mr. Clark. The simple answer is: No, it's not. In many
cases, because of the increased workload, because of the
demands that are being placed on the Marshals Service on an
ever-increasing basis around the nation, particularly in a
post-9/11 era, and speaking from the Eastern District of
Virginia, as you know, we've had a tremendous revamping of our
security around the courthouse in Alexandria, around the
courthouse in Norfolk and Richmond, increase in prisoner
population that has really skyrocketed----
Ms. Jackson Lee. And if I may, because of the shortness of
my time, you've given me a great piece to jump from. I see
3,800 contract security officers. I guess the question is not,
is that effective; but wouldn't it be more effective to have
additional resources for actual U.S. Marshals and have them in
an integrated system? I'm reminded, as I said, of the Southern
District.
And I'd ask the Chairman for unanimous consent for an
additional minute.
Mr. Gohmert. It will be granted.
Ms. Jackson Lee. Thank you. For example, there's a rising
influence of MS-13 gang members in the region that I come from.
Plus, we are overloaded with drug cases, some of them very
serious. Wouldn't it be wise to sort of look to an enhanced
Marshals Service for some of these activities that are coming
up?
Mr. Clark. Yes, the contract security officers that work
around the country protecting the interior of the courthouse do
a tremendous job, and we're certainly glad to have them. But
what we're faced with, that is from the workload level, often
requires deputy marshals to handle those duties.
For example, as I think Judge Roth had pointed out earlier,
protective measures, for example, require a tremendous amount
of resources to pull off. When you think of protective a detail
going 24/7 for one individual, if they have a family and
they're going to the grocery store, you require deputy marshals
to essentially escort and protect them, much like the President
of the United States would be protected.
Ms. Jackson Lee. So you need--we need a full complement,
fuller than what we have, of U.S. Marshals. And I looked at
Judge Gohmert's--I'm trying to pick it up here, sir--
legislation. And I notice a lot of good stuff about retaliation
and certainly some very good points. But I've always believed
that prevention is--an ounce of prevention is worth a pound of
cure. And when you look at our new philosophy on terrorism--and
I sit on the Homeland Security Committee--it is to keep
individuals from our shores. We certainly want to protect our
homeland, but let's keep them from our shores.
And it seems that we need legislation that focuses on
enhancing the prevention that's necessary; which, Judge Kent,
that's State--on the State side. And I hope that the
legislature responds to your needs, because I'd prefer you not
having to pull your gun, if you will. I know we have a
concealed weapons law and judges are allowed to carry their
weapons. But I think it's important to be preventative.
Might I just say this? And I know, Mr. Clark, you're trying
to say something. Let me see if the Chairman will be gracious.
But let me just say this. The bill has--that's before us right
now, has a lot of merits to it. I have to join my colleague on
the question of mandatory sentences, for this reason. It is
because we have a conflicted Supreme Court case that has
questioned mandatory sentencing.
I'd like the bill to be able to address these questions
with the backdrop of that Supreme Court decision. And also,
recognizing that judges, I think, have the ability to use their
good discretion, and they know when a bad guy is before them,
to know how to sentence them, both on the Federal and the State
level. So that concerns me.
The other concern that I have is a broader question,
because I've made the point that I want you all as safe as you
possibly can be. We've just seen a report that says that our
jails are overloaded. That means I want, if you will, the bad
guys and the terrorists. We're loaded up with more people in
jail than any nation in the world, and we're not the largest
nation in the world. I think we've got some frivolous cases
where people are being incarcerated. We need to address that
question.
Mandatory sentencing adds to some of that frivolity, in
terms of loading the courts and loading the system; where we
need to address questions of providing security for our judges.
I'd like to see our judges, if they call for it, have 24-hour
coverage, State and Federal. That's money. That's resources. So
we can pass legislation all day long, and we'll never get to
the point.
I think the other thing is, of course, this is not a
hearing on whether or not we enjoy your decisions; but I think
this is an appropriate hearing to make the statement that
conversation and statements by Members of Congress can be
equally threatening, except for the fact that we have a speech
and debate protection when we don't like judges' decisions. So
I hope that we'll be restrained from commenting on judges'
decisions at this point.
Let me close, Mr. Chairman--and thank you for your
kindness--to simply say that, and to the Ranking Member, I want
to thank him and Mr. Coble for this hearing. It may not be
directly related, but I guess it's somewhat extended; and
forgive me, not in any way taking--making light of the hearing
here. I'm going to study this bill very carefully. I have a
bill; I want to add some more dollars to the stated resources
for the U.S. Marshals.
And I hope that I can, by that, work with the State system,
Judge Kent, and provide maybe some coverage, depending on
whether it's a Federal crime, and we can do that.
But I do think, Mr. Chairman, and to the Ranking Member,
maybe we can have a hearing as well on whether or not law
enforcement--which I respect greatly--should be handcuffing a
5-year-old. And I'm not sure where that takes us, but I think
that that's really going beyond the pale and that we need to
do----
Mr. Gohmert. The 1-minute extension has expired.
Ms. Jackson Lee. I do thank you, Mr. Chairman. I look
forward to working with you, if you'd work with me, as I draft
legislation. And I'm going to be studying this issue, and also
working with these courts and Mr. Clark. Thank you very much. I
yield back.
Mr. Gohmert. All right. Thank you. And I'd like to thank
the witnesses for their testimony. The Subcommittee very much
appreciates your contribution. This is a quite serious subject.
And we do owe those who participate in the judicial process--
not just judges, but the prosecutors, the witnesses, the
jurors--we owe them a debt of gratitude. And we also owe them
protection. So, I appreciate your assistance.
In order to ensure a full record and adequate consideration
of this important issue, the record will be left open for
additional submissions for seven days. Also, any written
questions that Members wish to submit may be submitted within
the same seven-day period.
This concludes the oversight hearing on H.R. 1751, the
``Secure Access to Justice and Court Protection Act of 2005.''
We thank you all for your cooperation, and this Subcommittee
stands adjourned.
[Whereupon, at 4:02 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Robert C. Scott, a Representative
in Congress from the State of Virginia, and Ranking Member,
Subcommittee on Crime, Terrorism, and Homeland Security
Thank you, Mr. Chairman. I am pleased to join you to convene this
hearing on securing our courts and protecting our judges and others
associated with court operations. Unfortunately, I am unable to join
you in supporting the bill before us, due to the extraneous political
agenda that is the primary focus of the bill.
With several sensational incidents in recent years involving
murders of judges, family members of judges, court personal and
witnesses, and other victims, we have come to see the consequences of
insufficient security for our court operations and persons associated
with them. All are agreed that enhancement of security for our courts
and all persons associated with them, is imperative. Yet, the
proponents of H.R. 1751 have chosen to address those needs in a manner
apparently calculated to prevent or undermine the prospects for broad,
bi-partisan and general support for the effort.
Unfortunately, H.R. 1751 is yet another effort to use an
appropriate issue of concern to the nation as a vehicle for extraneous,
controversial and general provisions of law that are unnecessary,
costly and counterproductive to that concern. Yet again in this
Congress, we are considering a bill that purports to address a serious
concern--the concern for adequate protection and security of judges and
court related personnel--when, in its essence, the bill is merely a
host for more draconian criminal penalties aimed at ensuring that bit
players and major players in a crime face the same consequences.
Among other provisions, H.R. 175i contains 7 new death penalties, a
speedy habeas corpus procedure to assure that people are put to death
quicker and to increase the number by applying the provision ex post
facto, 22 new mandatory minimum sentences, and provisions to punish
attempts and conspiracies the same as completion of an offense. The
habeas provision is especially troubling. Given that 119 death row
inmates who have been exonerated from death penalties over the past 12
years after languishing on death row for many years, the impact of this
provision would be to ensure such persons are executed before they have
enough time for the evidence to develop to exonerate them. As with the
``Effective Death Penalty Act of 1996,'' the public policy rationale
undergirding this provision is apparently that it is more important for
us to administer executions efficiently than it is for us to administer
them accurately.
The public is clearly rethinking the appropriateness of the death
penalty, in general, due to the evidence that it is ineffective in
deterring crime, is racially discriminatory, and is more often than not
found to be erroneously applied. In a 23-year comprehensive study of
death penalties, 68% were found to be erroneously applied. So, it is
not surprising that 119 people sentenced to death for murder over the
past 12 years have been completely exonerated of those crimes. Nor is
it surprising with such a sorry record of death penalty administrations
that several states having abolished the death penalty, or had them
overturned by courts, or placed moratoriams on their application while
studies were being conducted, or just haven't applied one in many
years. For example, Connecticut has not executed anyone in 45 years.
Some have referenced the econometric research of economist Joanna M.
Shepherd. More recently, she has done further analysis and elaboration
on her research, noting that ``executions deter murders in six states,
. . . have no effect on murders in eight states, and . . . increase
murders in thirteen states.''
Mandatory minimum sentences clearly detract from the importance of
the bill. Through rigorous study and analysis, they have been shown to
be less effective, and thus, to waste money, when compared to more
effective and less costly approaches, to be discriminatorily applied,
and to violate common sense. Moreover, the scheme of the mandatory
minimum sentences in the bill appears arbitrary and is confusing. For
example, under section 7 of the bill, any individual who threatens a
witness, victim or informant in retaliation for his or her
participation in a court proceeding would receive a 10 year mandatory
minimum sentence. However, if the same individual threatened a federal
judge (under section 2 of the bill) he or she would receive a mandatory
minimum of 5 years.
I won't quote the numerous studies regarding the problems with
mandatory minimum sentences here, but Mr. Chairman, when we combine the
impact of this bill and its mandatory provisions with the impact of
similar provisions in the gang bill and the drug bill we recently
considered in this committee, clearly there will be a massive prison
impact if they are enacted into law. The indications from Sentencing
Commission assessments of the impact of the gang bill, alone, is in
excess of $7 billion dollars over the next 10 years. So, I hope you
will join me in requiring a prison impact assessment from the
Department of Justice regarding these measures.
And just as clearly, Mr. Chairman, with the number of death
penalties and mandatory minimum sentences we already have that would
apply to the incidents we have seen in our courts, we are not talking
about the kind of people who are discouraged by such measures. So, I
look forward to the testimony of our witnesses with the hope it will be
on what might actually enhance court security and not on these
extraneous matters. Thank you, Chairman.
__________
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Subcommittee on Crime, Terrorism, and Homeland Security
While the problem of violence and threats against judges, court
officials, and employees, witnesses and victims is not a new one, the
problem is growing. Recent events--the killing of the Fulton County
State judge and other court personnel in Atlanta, the murders of a
United States District Judge Joan Lefkow's family members outside
Chicago, Illinois, and the murders immediately outside the Tyler, Texas
courthouse--have underscored the problem. According to the
Administrative Office of United States Courts, there are almost 700
threats a year made against federal judges, and in numerous cases
federal judges have had security details assigned to them for fear of
attack by members of violent gangs, drug organizations and disgruntled
litigants.
According to The Third Branch, the primary newsletter of the
federal courts, at its March 2005 meeting, the Judicial Conference
noted that off site security for judges is ``of the gravest concern to
the federal judiciary'' and will be the top priority in discussions
with the Attorney General and Director of the U.S. Marshals Service. In
addition, the Conference approved a resolution calling for Justice
Department and Marshals service leaders ``to review fully and
expeditiously all aspects of judicial security at judges' homes and
other locations away from the courthouse. Let me say Mr. Chairman that
I realize the importance of providing adequate protection for our
Nation's judges. However, H.R. 1751 reaches too far.
Not only is it flooded with mandatory minimums, but it is imposes
several new death penalties.
The United States Marshals Service is responsible for protecting
Federal judge's and their families, and for security at Federal
courthouses. There have been concerns raised as to the United States
Marshals management and handling of judicial security, the manner in
which it conducts threat assessments, and the recent staff cuts in the
witness protection program. The United States Marshals claim that cuts
and reallocations have been necessary because of inadequate federal
funding of the service.
In addition, at the State and local level, there are significant
court security and witness protection issues that have been identified.
Judges in many States are inadequately protected, and there are no
meaningful witness protection programs at the State and local level,
where 90 percent of the criminal prosecutions occur.
__________
Prepared Statement of Mary McQueen, President,
National Center for State Courts
Chairman Coble, Member Scott, and Members of the Subcommittee,
On behalf of the Conference of Chief Justices (CCJ) and the
Conference of State Court Administrators (COSCA), it is a privilege to
provide testimony for consideration in the Subcommittee's hearing
examining the security of the Nation's state and federal courts. The
Conferences' memberships consist of the highest judicial officers and
the state court administrators in each of the fifty states, the
District of Columbia, the Commonwealth of Puerto Rico, and the Northern
Mariana Islands and the Territories of American Samoa, Guam and the
Virgin Islands. The National Center for State Courts (NCSC) serves as
the Secretariat for the two Conferences and provides supportive
services to state court leaders including original research, consulting
services, publications, and national education programs.
We believe that Congress has an opportunity to make an important
and tangible difference in improving the safety of our courts and
upholding the fundamentals of our democratic society.
INTRODUCTION
This morning thousands of judges, prosecutors, public defenders,
lawyers, law enforcement officers, court personnel, court reporters,
jurors, witnesses, victims, and members of the general public entered a
courthouse. They come for one purpose--seeking justice in a safe,
neutral forum. What ensures that people can resolve their disputes,
present evidence before a judge or jury and expect a judge to rule
solely based upon the law, uninfluenced by intimidation? A forum free
from fear, free from threats, and free from violence. People will not
bring their disputes to courts if the likely consequence is
intimidation or physical harm. Judges and jurors cannot pursue the
truth if they or their families are threatened.
A democracy cannot long endure if those entrusted with resolving
disputes are targets of violence and become enmeshed in an environment
of fear and intimidation, if officers responsible for security do not
have the resources to detect and respond, and if lawyers, parties and
the public must evaluate their own personal safety in deciding whether
to participate in the process. Freedom from such an environment and the
ability to carry out the judicial responsibilities in an open and
accessible manner are fundamental components of the exercise of the
rule of law.
We appreciate the problems of violence in the workplace. Indeed, if
there is any workplace in America where the potential for violence is
great, it is the judicial workplace. People do not go to court for
learning or education, entertainment or fun. People are often legally
required to attend court. Jurors are summoned to court. Witnesses are
subpoenaed to court. Defendants are compelled to go to court to face
criminal charges or civil prosecution. Folks who have given up on
resolving their disputes peaceably--disputes with their neighbors,
disputes with their children, disputes with their families, disputes
with their employers--go to court as their last resort. Emotions run
high because these disputes invariably involve human relationships, and
people's relationships evoke strong feelings. Also, there is the
confrontation clause--the right to confront your accusers. Although
most of us spend a lot of time trying to avoid problems or sweep them
under the rug, in court you often directly confront your adversary.
Consequently, in the judicial workplace, there is confrontation
between people under highly charged sets of emotional circumstances
regarding disputes that they have been unable to peacefully resolve.
There are winners and losers in court. Not only is there confrontation
and emotion, but at least one of the parties will often leave feeling
disappointed or angry that they have lost--and they have lost in some
sort of a final, binding way. Frequently, both sides leave feeling that
they have lost because of either the process or the court's ruling.
Despite the fact there is no workplace with greater potential for
violence it is also true that there is no workplace in America where it
is more critical that the workplace be free of violence.
Access to peaceful resolution of disputes is fundamental to our
system of government. Coupled with the principle of judicial
independence these concepts are the envy of the world. Neither access
to justice nor judicial independence can exist in an environment of
intimidation, fear or violence. Under the rule of law, court
proceedings are supposed to be open and public. How long will the
proceedings be open to the public if members of the public, although
invited to the courthouse, fear that they are going to become embroiled
in some sort of a threatening, fearful, or violent situation?
Mr. Chairman, the recent events in Atlanta and Illinois show a
disturbing pattern with regards to how some people view the judiciary
as an institution. These attacks and threats towards members of the
judicial branch are rapidly reaching a crisis point for us. Let me
recount some recent examples that we were able to get from our members:
Alaska. Most of the judges in this state have
recently received threatening communications with repeated
references to the Chicago murders. Last year, a serious
communication to one judge required the intervention of the FBI
last year. Also during this past year, large numbers of weapons
have been confiscated as a result of magnetometer screenings.
Arizona. In the past year, there has been a suicide
outside a divorce court, a firebomb of a Justice of the Peace
Court, death threats towards judges, a visit by a disturbed
litigant to a judge's home, explicit communications with
pictures and diagrams to judges on pending cases, and threats
by constitutionalists to ``arrest'' and execute a judge.
California. Various bomb threats have been received
this past year, including an incident in which law enforcement
was able to arrest the perpetrator before he was able to carry
out the actual bombing, an incident in which a firebomb was
discovered in a courthouse before it was able to go off, and an
incident in which a litigant came into a clerk's office with a
small home-made bomb. Explicit threats have been made against
judges to carry out violence against them. Graffiti has been
painted detailing threats against the court system. A court
received correspondence that contained a vial of blood that
tested positive for HIV and Hepatitis C. A wallet found in a
courtroom with a description of a judge's car and license plate
number. An individual with a pending court case was recently
arrested videotaping the judges parking lot.
Mississippi. Death threats have been made against
several trial courts judges. Threats of destruction of property
(buildings) and physical attacks on Justices of the Supreme
Court have been made.
New Hampshire. There was a recent incident where an
individual entered a courthouse and attempted to assault a
Court Security Officer during the screening process. A recent
threat to ``shoot up'' one of the courthouses was also made.
New York. The New York State court system receives
approximately 140 death threats against judges a year.
Even though we do not have quantitative data to back this up, it is
the impression of the state court leadership that the number and
severity of these threats have been rising in recent years.
Furthermore, given that the state courts try approximately 96 million
cases per year, the opportunities for incidents and the magnitude of
the problem cannot be overstated. Also, let me emphasize that while
judges and court personnel are seriously at risk during any incident,
the risk to the public is also significant.
THREATS AGAINST JUDGES
Since the Fulton County incident and the murders of U.S. District
Judge Lefkow's husband and mother, we have been inundated with requests
for information about threats that state court judges receive on the
job. The simple fact of the matter is that, because of the cost of
compiling such a large amount of data, we do not know the full extent
of the problem.
In a survey by the family law section of the ABA, 60 percent of
respondents indicated that an opposing party in a case had threatened
them. From the federal Marshall's Service, we know that they record an
average of 700 inappropriate communications and threats a year against
federal judicial officials. This is a marked increase from the 1980s
when the average was closer to 240 per year. If you compare the number
of federal judges to the approximately 32,000 state court judges, there
is the possibility that we may find a large number of judges that face
or have faced some sort of physical threat.
Naturally we must always remember that the potential for violent
attacks on judges is not limited to the courtroom. An aggressor who
targets a specific judge may attack the weakest security link in that
judge's world--most likely the home. While more difficult, this area of
protection cannot be overlooked.
In order to better position courts and judges to deal with these
threats we are proposing the following:
To Establish a Repository for a New Threat Assessment
Database.--Each state would establish a web-based site where
threats could be reported and local action taken. Federal
dollars could support each state in establishing these web-
based sites. This coordinated effort would result in: 1)
establishing and defining a core set of data elements used by
each state and 2) obtaining data from states for analysis of
trends and patterns. This information could then be used to
assist states in preventing acts of domestic terrorism and
crime and in enhancing their security procedures. By having the
information from this threat database, we can target our
resources where they will be most needed. Under the current
system, most courts are taking an all or nothing approach with
virtually no information to guide them in overall security
planning.
To Establish a Tax Credit for Personal Security
Systems for Public Officials that Receive Threats as a Result
of Performing Their Public Duties--Public officials, in order
to protect themselves and their families, have had to purchase
personal security systems as a result of threats and assaults.
A tax credit is an appropriate way in which to offset these
expenses.
Even though the second item may not be within the purview of this
committee, we hope to count on your support as we forward it to the
tax-writing committees.
FUNDING CHALLENGES
Perhaps the greatest challenge facing state courts wishing to
implement enhanced security measures is the issue of resources. The
majority of limited jurisdiction courts depend on local law enforcement
for the personnel to operate the equipment, provide adequate response
or run security operations in a courthouse. As you know, most local
governments struggle to meet day-to-day operations of running their
governments and have little options to improve or implement new
security measures in courthouses. Because there is no adequate funding
source, many courts report that they have no formal security plan.
CCJ/COSCA and the National Center for State Courts have been
disseminating promising practices in the courthouse security area. Our
efforts in this area have been well received. For example, we have
circulated the ``Ten Essential Elements for Courtroom Safety and
Security.'' The National Center also has compiled a wealth of
information for state courts looking to upgrade their court security.
Materials range from sample local court security plans to specific
recommendations in courthouse architectural design, computer disaster
recovery, and equipment.
I must caution you that there is only so much that we can get out
of streamlining and making better use of present resources. Sooner or
later courts will need to find a way to pay for enhanced security
measures. We hope that you will favorably consider our recommendations
to allow state courts greater access to federal funds for much needed
security improvements.
THE NEW DIMENSION--COURTHOUSE TERRORISM
On September 11, terrorist attacks threw New York City's court
system in disarray because many court buildings and other criminal
justice offices were located near the site of the World Trade Center.
Three court security officers perished when they tried to assist in the
rescue efforts. The Court of Claims Courthouse, located at Five World
Trade Center was destroyed. Other courthouses were deep within the so-
called `frozen zone,' an area that city officials ordered off-limits to
all but essential personnel.
The New York state court leadership, however, moved quickly to
ensure that the disruption did not last more than one day. Under the
leadership of New York State Chief Judge Judith Kaye, the focus of the
hours following the attacks was to do everything possible to open all
the courts.
The threat of terrorism has created a new dimension in courthouse
security. The courthouse is a visible, tangible symbol of government.
The September 11, 2001 attacks showed painfully the targets governments
and other prominent buildings present. Thus courts, being a core
function of American government, now suffer increased exposure to
attacks from those external to the court process. They must be provided
the same protection that is being provided to other government
institutions in order to keep them open and accessible. The state
courts are dealing with the threats posed by terrorism. We, however,
need more assistance from the federal government as the large focus
shifts to protecting the homeland. This is how you can help us.
As you know, there will be approximately $2.5 billion in federal
funding for homeland security awarded in FY2005. As you may not know,
very little of this money will go to state courts for dealing with the
various terrorism-related threats. In a recent survey of COSCA members,
76% of the respondents reported that the court system had not received
any Homeland Security funds. We need to be a part of this funding
because terrorists often target the positive symbols of the American
way of life like courts and the law. To improve on this, here are some
concepts that we forward for your consideration:
To Create a New Federal Grant Program Specifically
Targeted at Assessing and Enhancing State Court Security to
Combat International and Domestic Terrorism--This program would
address the 10 Essential Elements for Courtroom Safety and
Security as developed by CCJ/COSCA. The program would be
modeled after the Court Improvement Program (CIP), the
successful federal/state court program that has assisted us in
handling child abuse and neglect cases.
To Ensure that State Courts Are Eligible to Apply
Directly for Federal Funding--State and local courts have not
been able to apply directly for some Department of Justice
(DOJ) administered programs because of the definition of ``unit
of local government'' that has been included in the enabling
legislation for the various programs. The result of this
language is that state and local courts are not able to apply
directly for these funds, but must ask an executive agency to
submit an application on their behalf. As part of the DOJ
reauthorization and as new grant programs are created, we ask
that the definition of eligible entities is broadened so that
state and local courts can apply directly for federal grant
funds. As an example, when the Violence Against Women Act
(VAWA) was reauthorized in 2001, the reauthorization
legislation contained specific language authorizing, ``State
and local courts (including juvenile courts) . . .'' to apply
directly for VAWA funds.
To Ensure that State Courts Are Included in the
Planning for Disbursement of Federal Funding Administered by
State Executive Agencies--Statutory language for grant programs
that impact the justice system should include specific language
requiring consultation and consideration of state court needs.
The language that we have suggested is as follows:
``An assurance that, in the development of the grant
application, the States and units of local governments took
into consideration the needs of the state judicial branch in
strengthening the administration of justice systems and
specifically sought the advice of the chief of the highest
court of the State and, where appropriate, the chief judge of
the local court, with respect to the application.''
NATIONAL SUMMIT ON COURT SECURITY
Shortly after the Atlanta and Chicago tragedies, with the Office of
Justice Programs of the Department of Justice, the Conference of Chief
Justices, the Conference of State Court Administrators, the American
Judges Association, the National Association for Court Management, and
the National Sheriffs Association as sponsors, we held a National
Summit on Court Security on April 21, 2005. The Summit brought together
all members of the court community to review current safety and
security practices and needs in the courts. The discussions that
occurred in the summit refined and reinforced the action items we are
requesting in this testimony. We commend those who participated in the
Summit. We are particularly grateful to Attorney General Gonzales and
the Department of Justice's Office of Justice Programs for their
leadership in embracing this priority and which provided the resources
to hold the Summit.
CONCLUSION
The state courts of this country welcome the Judiciary Committee's
interest in courthouse security. We look forward to working with the
Committee to develop legislation that addresses courthouse security
needs and takes into account the varied needs of the state courts of
this country. We commend the Subcommittee for holding this hearing and
recognizing the national interest in ensuring that our judiciary and
courts must operate in a safe and secure environment.
Letter from the Judicial Conference of the United States, dated April
1, 2005, submitted by the Honorable Robert C. Scott, a Representative
in Congress from the State of Virginia, and Ranking Member,
Subcommittee on Crime, Terrorism, and Homeland Security
Response to post-hearing questions from the Honorable Paul J. McNulty,
United States Attorney, Eastern District of Virginia