[Senate Hearing 110-]
[From the U.S. Government Publishing Office]


 
  FINANCIAL SERVICES AND GENERAL GOVERNMENT APPROPRIATIONS FOR FISCAL 
                               YEAR 2009

                              ----------                              


                       WEDNESDAY, MARCH 12, 2008

                                       U.S. Senate,
           Subcommittee of the Committee on Appropriations,
                                                    Washington, DC.
    The subcommittee met at 4:02 p.m., in room SD-138, Dirksen 
Senate Office Building, Hon. Richard J. Durbin (chairman) 
presiding.
    Present: Senator Durbin.

                             THE JUDICIARY

STATEMENT OF HON. JULIA S. GIBBONS, JUDGE, U.S. COURT 
            OF APPEALS, SIXTH CIRCUIT; CHAIR, BUDGET 
            COMMITTEE OF THE JUDICIAL CONFERENCE

             OPENING STATEMENT OF SENATOR RICHARD J. DURBIN

    Senator Durbin. Good afternoon. This is the second of the 
subcommittee's hearings, and today we are going to focus on the 
fiscal year 2009 budget for the Federal judiciary.
    We will be hearing from two distinguished witnesses: Judge 
Julia Gibbons--welcome--and Director James Duff. Welcome as 
well. I am pleased that you are here speaking on behalf of our 
Federal judiciary.
    I welcome my colleagues who will come as the meeting 
progresses.
    In fiscal year 2008, despite the difficulty the 
subcommittee faced in attempting to adequately fund all the 
various agencies within our jurisdiction and remain within the 
President's overall spending level, we managed to provide the 
judiciary with a 4.5 percent increase overall. With the prior 3 
fiscal year increases of 5 percent, all this has helped put the 
courts back on track after suffering significant cuts in fiscal 
year 2004.
    With fiscal year 2008 funds, hirings for probation and 
pretrial services are increasing back to previous levels; non-
capital panel attorney rates were increased from $94 an hour to 
$100, a modest increase; courts were provided additional 
funding to absorb the additional caseload expected with 
increased border enforcement; court security requirements were 
fully funded; and authority was clarified that the U.S. 
Marshals may assume responsibility from the Federal Protective 
Service (FPS) for perimeter security at several designated 
courthouses.
    For fiscal year 2009, you are requesting a 7.6 percent 
increase overall for the judiciary above last year's levels. In 
addition, within the defender services account, you are 
requesting an increase in the non-capital panel attorney rate, 
which would boost hourly rates from $100 to $118 and then to 
$140 in fiscal year 2010. The subcommittee provided a 7.6 
percent increase for defender services last year, and such 
large pay increases for these attorneys this year will likely 
be optimistic, given our anticipated funding constraints. It is 
why I hope that we will be able to at least provide a modest 
increase in the non-capital panel attorney rate.
    Regarding court security, I look forward to being updated 
on the progress of the pilot program undertaken with the U.S. 
Marshals Service at designated courthouses. I will also be 
interested to learn how the judiciary is implementing the Court 
Security Improvement Act. And I will want to discuss with you 
the Justice Department's inspector general's report on the U.S. 
Marshals Service.
    I will have questions about courthouse construction, the 
impact of increased border enforcement, your workload, offender 
reentry programs, General Services Administration (GSA) rent, 
and more. If we cannot cover all the questions in the hearing, 
we will send them to you for the record, and I am sure that you 
can get them back to us in a reasonable period of time.
    Senator Brownback will be unable to attend today's hearing, 
but has asked that his statement be submitted for the record.
    [The statement follows:]
              Prepared Statement of Senator Sam Brownback
    Good afternoon. I want to thank you, Chairman Durbin, for your 
leadership. I look forward to working together with you during this 
coming year as we make funding decisions and provide oversight for the 
Federal Judiciary as well as the other agencies within this 
subcommittee's jurisdiction.
    I would like to thank Judge Gibbons and Mr. Duff for appearing 
before our subcommittee today. I look forward to hearing the details of 
your fiscal year 2009 budget request and the key efforts that the 
Judiciary will be undertaking this year. The Judiciary has the critical 
role of interpreting our laws and I am interested in hearing your 
thoughts on the state of our Nation's courts.
    Looking at the budget submission, I am pleased to see an increase 
in defender services which is extremely important in light of last 
night's Senate passage of the Second Chance Act. This bill reshapes the 
way we look at prisoner re-entry. It is comprised of grant programs 
targeted at States, local governments and non-profit, faith-based 
organizations. And unlike most grant programs, in order to receive 
future funding under this act, programs must show real progress in 
reducing the recidivism rate of the program participants. As you all 
know, the U.S. Sentencing Commission recently passed the Crack Cocaine 
Sentencing Amendment, and it took effect in November. This sentence 
reduction for crack cocaine offences is retroactively applicable, thus 
allowing thousands of Federal offenders to seek reductions in their 
sentences. I would hope that with the passage of the Second Chance Act 
that we will be able to get much-needed re-entry programs to the 
inmates who truly need these essential services.
    I would like to mention my concerns about the overall slowdown in 
Federal judge confirmations. There are currently 45 vacancies--14 
circuit court vacancies and 31 district court vacancies with 27 
nominees awaiting confirmation. I understand the hardship this places 
on the Judiciary. There is bit of progress being made, however, because 
yesterday the Judiciary Committee reported out several district court 
judges for confirmation on the Senate floor and tomorrow a circuit 
court judge is on the agenda for the Judiciary Committee markup. I am 
hopeful that we will continue to make progress in confirming judges and 
reducing the strain on the Judiciary.
    Judge Gibbons and Mr. Duff, I look forward to hearing your 
testimony this afternoon.
    Thank you, Mr. Chairman.

    Senator Durbin. I also note that the subcommittee is in 
receipt of written testimony submitted by the Court of Appeals 
for the Federal Circuit, the Court of International Trade, 
Federal Judicial Center, and the U.S. Sentencing Commission, 
all of which will be submitted for the hearing record.
    Judge Gibbons, I am going to allow you to begin. I thank 
you for being here today and look forward to putting your 
remarks in the record. Judge Gibbons.

                    JUDGE GIBBONS' OPENING STATEMENT

    Judge Gibbons. Thank you for the opportunity to be here.
    Chairman Durbin, I appear as Chair of the Judicial 
Conference Committee on the Budget, and with me today, of 
course, is Jim Duff, who is the Director of the Administrative 
Office of the United States Courts.
    We thank you, Mr. Chairman, for attending the Judicial 
Conference session yesterday and for your remarks there.

                        FISCAL YEAR 2008 FUNDING

    Let me begin by thanking the subcommittee for making the 
judiciary a funding priority in the fiscal year 2008 
appropriations cycle. The courts are in good financial shape 
for 2008. The funding you provided will allow us to finance 
continuing operations in the courts and to address workload 
needs.
    We are particularly appreciative of the $25 million you 
provided in emergency funding to respond to workload associated 
with immigration enforcement initiatives.
    We are also grateful for two provisions that were included 
in the omnibus bill: the increase in the non-capital hourly 
rate for panel attorneys that you have referred to and the 
pilot project in our court security program.

                    FISCAL YEAR 2009 BUDGET REQUEST

    Turning to the 2009 budget request, the judiciary is 
requesting $6.7 billion, an increase of $475 million over the 
2008 enacted level; 86 percent of the increase is for standard 
pay and non-pay inflationary adjustments and for adjustments to 
base, reflecting increases in space, information technology, 
defender services, and court security programs. We are not 
requesting any new staff in clerks and probation offices.
    The remaining $68 million of our requested increase is 
primarily for program improvements in our information 
technology program and an enhancement in the defender services 
program that you already referred to, increasing the hourly 
rate for private panel attorneys. We are appreciative of the 
increase you provided this year but believe an additional 
increase is warranted.
    Our budget request reflects our continuing efforts to 
contain costs. We are now more than 3 years into an intensive 
effort to reduce costs throughout the judiciary and our cost 
containment program is producing results.
    We have achieved so far the most significant savings in our 
space and facilities program through an ongoing rent validation 
project in which our court staff identify errors in rent for 
GSA to correct and give us rent credits. GSA has been very 
cooperative in this endeavor.
    In the information technology area, we are consolidating 
the deployment of computer servers which generate savings from 
reduced maintenance and equipment replacement costs.
    We are also containing personnel costs. At its September 
2007 meeting, the Judicial Conference approved recommendations 
from a major court compensation study that will slow the growth 
in personnel costs. Containing costs is a top priority for us.

                      COURT SECURITY PILOT PROJECT

    Let me talk briefly about the pilot project approved in the 
2008 omnibus bill. During my testimony last year before you, I 
discussed the judiciary's concerns regarding the expense and 
quality of security provided the courts by the Federal 
Protective Service. Chairman Durbin, you responded quickly to 
our concerns and convened a meeting with Director Duff and the 
Directors of the Marshals Service and the FPS.
    As a result of your personal interest and commitment to 
improve court security, the subcommittee's bill included a 
provision for a pilot project permitting the Marshals Service 
to assume perimeter security duties from FPS at seven 
courthouses that have been selected. The Dirksen Federal 
Courthouse in Chicago will be the first pilot site to move 
forward. The project will begin later this year and will be in 
effect for approximately 18 months. We will provide you an 
evaluation of the project.

              IMPACT OF INCREASED IMMIGRATION ENFORCEMENT

    An issue that has received significant attention from 
Congress and the administration in recent years is illegal 
immigration. Despite zero tolerance immigration enforcement 
initiatives like Operation Streamline, in recent years resource 
constraints in the justice enforcement system on the border 
have limited the number of immigration cases prosecuted. It now 
appears that additional resources are making their way to the 
border through the Department of Justice's emergency funding 
received in 2008 and potentially through the funding requested 
in the President's 2009 budget. We believe the courts' workload 
will increase from this infusion of resources. Although we are 
not requesting funding for new clerks or probation staff on the 
border or elsewhere, we are very grateful for your provision of 
$45 million over the last 2 years to address the immigration-
related workload so that we can respond in the short term to 
any increased workload.
    We do need additional judgeships on the Southwest border. 
The Judicial Conference has requested 10 more judgeships on the 
border, and we make a special plea for the subcommittee's 
support of the $110 million requested for GSA in the 
President's budget to fund fully a new Federal courthouse in 
San Diego. This is our top space priority.

                          PREPARED STATEMENTS

    I would ask that my statement, along with the others you 
referred to, be placed in the record. And, of course, we are 
available for your questions.
    [The statements follow:]
              Prepared Statement of Hon. Julia S. Gibbons
                              introduction
    Chairman Durbin, Senator Brownback, and members of the 
Subcommittee, I am Judge Julia Gibbons of the Sixth Circuit Court of 
Appeals. Our court sits in Cincinnati, Ohio, and my resident chambers 
are in Memphis, Tennessee. As the Chair of the Judicial Conference 
Committee on the Budget, I come before you to testify on the 
Judiciary's appropriations requirements for fiscal year 2009. In doing 
so, I will apprise you of some of the challenges facing the Federal 
courts. This is my fourth appearance before an appropriations 
subcommittee on behalf of the Federal Judiciary and my second 
appearance before the Financial Services and General Government panel. 
Appearing with me today is James C. Duff, the Director of the 
Administrative Office of the United States Courts.
    In addition to a discussion of our fiscal year 2009 request, my 
testimony will cover several policy issues that impact the Federal 
courts. I will also update you on the Judiciary's efforts to contain 
costs as well as discuss several information technology innovations 
that are examples of the Judiciary(s continual efforts to improve 
Federal court operations.
                       statements for the record
    Mr. Chairman, in addition to my statement and Director Duff's, I 
ask that the entire statements of the Federal Judicial Center, the 
Sentencing Commission, the Court of Appeals for the Federal Circuit, 
and the Court of International Trade be included in the hearing record.
                        fiscal year 2008 funding
    Mr. Chairman and Senator Brownback, let me begin today by thanking 
you and your colleagues for making the Judiciary a funding priority in 
the fiscal year 2008 appropriations cycle. The funding you provided, 
combined with greater than anticipated fee carryover balances and 
reduced requirements due to our cost containment initiatives, will 
allow us to finance continuing operations in the courts as well as to 
address workload needs. We are particularly appreciative of the $25 
million you provided the Judiciary in emergency funding to respond to 
workload associated with immigration enforcement initiatives being 
implemented by the Department of Homeland Security and the Department 
of Justice. We are fully cognizant of the difficult funding choices you 
faced during conference on the omnibus bill and appreciate your 
willingness to support the needs of the Judiciary. We appreciated the 
opportunity to work with the Subcommittee to identify our highest 
priority funding needs when your allocation was significantly reduced 
during conference on a final bill.
    We also are grateful for several provisions included in the omnibus 
bill, which we believe will improve Federal court operations. Two that 
are particularly important are the pilot project to assess the 
feasibility of transferring responsibility for perimeter security at 
several designated primary courthouses from the Federal Protective 
Service to the United States Marshals Service and the increase in the 
non-capital hourly rate paid to private panel attorneys who represent 
eligible defendants under the Criminal Justice Act. I will discuss the 
pilot project in more detail next and return to panel attorney rates 
later in my testimony.
                             court security
    Mr. Chairman, during my testimony last year I conveyed to the 
Subcommittee the Judiciary's concerns regarding the expense and quality 
of security provided the courts by the Federal Protective Service 
(FPS). FPS provides, on a reimbursable basis, exterior perimeter 
security for Federal agencies, including at courthouses and multi-
tenant court facilities. The Judiciary's FPS costs are paid from our 
Court Security appropriation and fiscal year 2009 billings are 
projected to be $72 million.
    Last year I spoke of incidents of inoperable FPS-provided exterior 
cameras at courthouses and the absence of cameras altogether at key 
locations resulting in ``dead zones'' with no camera surveillance, 
despite our paying FPS for the equipment. Security lapses such as these 
left courthouses with serious security vulnerabilities. Fortunately, to 
help ensure that the courts had adequate security, the United States 
Marshals Service (USMS) assumed responsibility for repairing or 
replacing FPS-provided perimeter cameras at a number of courthouses 
where it was apparent that FPS did not have the resources to do so. 
This resulted in the Judiciary's paying for the same services twice: 
once to FPS in its security charges, and also to the USMS in the 
funding we transferred to it for systems and equipment for interior and 
perimeter courthouse security. The Judicial Conference had become 
increasingly concerned about this issue and consequently, in March 
2007, it endorsed a recommendation to expand the USMS's current mission 
to include perimeter security of court facilities nationwide where the 
Judiciary is the primary tenant.
    Mr. Chairman, within a month after last year's hearing you convened 
a meeting with the Directors of the United States Marshals Service, 
Federal Protective Service, and the Administrative Office of the United 
States Courts to learn more about this issue. As a result of your 
personal interest and commitment to improve court security, the Senate 
version of the fiscal year 2008 Financial Services and General 
Government appropriations bill (H.R. 2829) included the provision 
approving a pilot project permitting the USMS to assume responsibility 
from FPS for perimeter security at several designated courthouses. And, 
as I just mentioned, the provision was included in the final conference 
agreement on the fiscal year 2008 omnibus appropriations bill thus 
allowing the Judiciary and the USMS to begin implementation of the 
pilot. Specifically, the pilot project involves the USMS monitoring the 
exterior of the courthouses with court security officers and assuming 
control of FPS monitoring equipment. The USMS, working with the 
Administrative Office of the U.S. Courts, selected seven courthouses 
for the pilot. I would note that the Everett McKinley Dirksen U.S. 
Courthouse in Chicago will be the first pilot site to move forward. The 
other six sites are: the Theodore Levin U.S. Courthouse, Detroit, 
Michigan; the Sandra Day O'Connor U.S. Courthouse, Phoenix, Arizona; 
the Evo A. DeConcini U.S. Courthouse, Tucson, Arizona; the Russell B. 
Long Federal Building/U.S. Courthouse, Baton Rouge, Louisiana; the Old 
Federal Building and Courthouse, Baton Rouge, Louisiana; and the Daniel 
Patrick Moynihan U.S. Courthouse, New York, New York.
    The pilot project is anticipated to begin in the fourth quarter of 
fiscal year 2008 and will be in effect for approximately 18 months at 
which time an evaluation of the pilot will be provided to the 
Subcommittee. The annualized cost of the pilot is estimated to be $5 
million, which will be offset by anticipated reductions in FPS 
billings. We appreciate your concern with the security of our 
courthouses, and we will provide the Subcommittee with updates as the 
pilot project gets underway.
Work of the United States Marshals Service
    I would like to say a few words about the vitally important work of 
the United States Marshals Service. Inside the courthouse, judges, 
court staff, attorneys, jurors, defendants, litigants, and the public 
depend entirely on the USMS for their safety. Heightened security at 
courthouses due to high-threat trials and terrorism concerns have made 
the work of the USMS more difficult, and it has responded extremely 
well to those challenges. For judges like myself, the USMS also ensures 
our security outside of the courthouse, and it takes this charge 
seriously. In September 2007, the USMS established a new Threat 
Management Center that serves as the nerve center for responding to 
threats against the Judiciary. The Center provides vital data to U.S. 
Marshals nationwide on threats against judges and court personnel. The 
USMS also has overseen the installation of nearly all of the 1,600 
intrusion detection systems in the homes of Federal judges in order to 
provide increased judicial security outside of courthouse facilities. 
This has been a 2-year effort and includes ongoing system monitoring by 
a security firm. All of us in the Federal court family are grateful to 
John F. Clark, Director of the U.S. Marshals Service, his staff, and 
the U.S. Marshals throughout the 94 judicial districts for their 
dedication and responsiveness to the security needs of the Federal 
Judiciary. The USMS operates within very tight resource levels, and we 
urge Congress to fund fully the USMS's fiscal year 2009 budget request 
to enable it to continue meeting its statutory mandate to protect the 
Federal Judiciary.
          retroactivity of crack cocaine sentencing amendment
    Mr. Chairman, I would like to discuss an issue that has received 
some attention in recent months: the changes to Federal sentencing 
guidelines for crack cocaine offenses approved by the United States 
Sentencing Commission. The Commission is a bipartisan, independent 
agency within the Judicial Branch that was established by the 
Sentencing Reform Act of 1984 to develop national sentencing policy for 
the Federal courts. The Commission promulgates the sentencing 
guidelines that Federal trial court judges consult when sentencing 
defendants convicted of Federal crimes.
    On May 1, 2007, the Commission submitted a package of amendments to 
the Federal sentencing guidelines that, in the absence of congressional 
action to the contrary, went into effect on November 1, 2007. Among the 
amendments was one that modified the Federal sentencing guidelines for 
crack cocaine offenses. The amendment reduced the base offense level, 
or starting point, for crack cocaine offenses under the guidelines 
downward by two offense levels. This amendment does not affect the 
statutory mandatory minimum penalties for crack cocaine offenses 
established by Congress. The Commission took this action to alleviate 
some of the longstanding problems associated with the penalty scheme 
for cocaine offenses, which requires 100 times more powder than crack 
cocaine to receive the same statutory mandatory minimum penalty 
commonly referred to as the (100-to-1 ratio.) As a result of the 
amendment, the average sentence for crack cocaine offenders sentenced 
on or after November 1, 2007 will be approximately 16 months less than 
those sentenced before that date.
    The Commission is authorized by statute to decide whether 
amendments that reduce penalties should be given retroactive effect. In 
December 2007, the Commission voted unanimously to give retroactive 
effect to the amendment for crack cocaine offenses. Retroactivity of 
the amendment became effective on March 3, 2008.
    Pursuant to statute, once the Commission has given an amendment 
retroactive effect, a defendant, the director of the Bureau of Prisons, 
or a court on its own may move to have a defendant's term of 
imprisonment reduced pursuant to the Commission's policy statement on 
retroactivity and the limits of the amendment. The Commission estimates 
that approximately 19,000 Federal offenders over a span of several 
years may be eligible to seek to have their terms of imprisonment 
reduced as a result of retroactivity. These individuals were sentenced 
throughout the country although a large number of potentially eligible 
offenders were sentenced in districts located within the Fourth Circuit 
(West Virginia, Virginia, Maryland, North Carolina, and South 
Carolina).
    A Federal sentencing judge will make the final determination of 
whether an offender is eligible for a lower sentence and how much that 
sentence should be lowered. That determination will be based on many 
factors, including whether the offender's reduced sentence or release 
would pose a danger to public safety.
    I will not discuss the merits of retroactivity since such policy 
decisions are outside the Budget Committee's area of responsibility; 
however, I will note that the Criminal Law Committee of the United 
States Judicial Conference supported the Commission's decision on 
retroactivity. The Criminal Law Committee and its staff at the 
Administrative Office of the United States Courts have been working 
closely with the Commission to give the courts sufficient time, 
resources, and guidance to prepare for and process these cases. It is 
this process that I would like to take a moment to discuss.
    We anticipate there may be an initial surge of motions for 
reductions in sentence filed in the Federal courts. These filings will 
be handled by various district court components, including district 
judges, clerks offices, probation and pretrial services offices, and 
Federal defender offices. It is generally agreed that a large number of 
motions for a reduction in sentence will not involve court hearings and 
will be decided on written filings, so our workload associated with 
processing those cases should not be unduly burdensome. The cases that 
require hearings will require more court resources. At present, no 
extraordinary measures have been necessary to address the increased 
workload due to retroactivity, although additional resources will be 
available if needed for smaller districts that may be 
disproportionately impacted by the number of Federal offenders seeking 
a reduction in sentence based on retroactivity.
    We believe retroactivity will have the greatest impact on our 
probation offices. The crack cocaine offenders who may be released 
after a Federal judge grants the motion for a reduction in sentence 
will require close probation supervision, drug testing, and possibly 
drug and other treatment services as do other Federal offenders leaving 
Federal prison. At this time, however, our fiscal year 2009 budget does 
not request additional staffing or other resources associated with 
retroactivity of the crack cocaine sentencing amendment. The Judiciary 
believes the additional workload associated with retroactivity can be 
absorbed within existing resource levels.
                 impact of increased border enforcement
    Another issue that has received significant attention from Congress 
and the administration is illegal immigration, so I would like to 
discuss the impact of increased border and immigration enforcement 
initiatives on the work of the Federal courts. In recent years the 
administration has dedicated significant resources to address the issue 
of illegal immigration. The President's fiscal year 2009 budget 
includes $12 billion for the Department of Homeland Security (DHS) for 
border security and enforcement efforts, a 19 percent increase over 
fiscal year 2008, and a more than 150 percent increase since 2001. DHS 
has used the funding to increase the number of border patrol agents 
significantly, particularly on the Southwest border with Mexico. Since 
2001, more than 5,000 additional border patrol agents have been hired 
with most of them placed along the southwest border. In fiscal year 
2008, DHS received funding to hire an additional 3,000 border patrol 
agents, and the President's fiscal year 2009 budget includes funding 
for another 2,200 agents, bringing the total to 20,000 agents. When 
fully staffed the Border Patrol will have more than doubled in size 
since 2001.
    The level of criminal case filings in the Federal courts in the 
five judicial districts along the southwest border is high by 
historical standards--19,825 filings in 2007 versus 17,184 in 2001--but 
filings have not increased commensurate with the increased resources 
provided to DHS for border enforcement. Despite zero tolerance border 
initiatives such as Operation Streamline in which nearly everyone 
apprehended for violating U.S. immigration laws is prosecuted, resource 
constraints in the justice system have precluded more cases from being 
prosecuted in the Federal courts. Staffing shortages in U.S. Attorney 
offices, lack of detention beds needed to secure offenders awaiting 
prosecution, and staffing constraints in U.S. Marshals offices have 
resulted in the establishment of certain threshold levels in some 
border districts that must be met before a case is prosecuted. For 
example, a U.S. Attorney in one district may prosecute someone coming 
into the country illegally after the tenth attempt, while a U.S. 
Attorney in another district may prosecute after the fifth attempt.
    To the extent the Federal courts are perceived as a factor that 
limits the number of cases that can be prosecuted on the border, I 
would note it is Congress that establishes the number of district 
judgeships and the districts to which they are assigned, and Congress 
and the Executive Branch that control the authorization, funding, and 
construction of new courthouses. The district courts on the southwest 
border have not received any new district judgeships since 2002 despite 
Judicial Conference requests for additional judgeships in 2003 (11 
judgeships), 2005 (11 judgeships), and 2007 (10 judgeships). In recent 
years Congress has been responsive to the need for new courthouse space 
on the southwest border, and we hope that you will support the 
additional $110 million included in the President's fiscal year 2009 
budget to fund fully a new Federal courthouse in San Diego, California. 
The Judicial Conference designated the San Diego courthouse a judicial 
space emergency in 2003, but the General Services administration has 
been unable to award a contract for the project due to escalating 
construction costs in Southern California.
    It now appears that Congress has taken steps to address the 
resource needs across the justice system on the southwest border by 
providing additional resources beyond those provided to DHS. In fiscal 
year 2008 the Department of Justice received $7 million in emergency 
funding to hire more assistant U.S. Attorneys (AUSAs) in the five 
judicial districts along the southwest border. The U.S. Marshals 
Service received $15 million in emergency funding to address southwest 
border workload needs including the hiring of 100 additional deputy 
U.S. Marshals. The President's fiscal year 2009 budget includes $100 
million for a new Southwest Border Enforcement Initiative focusing law 
enforcement and prosecutorial efforts on fighting violent crime, gun 
smuggling, and drug trafficking in that region. If funded, this 
initiative will increase the number of AUSAs along the southwest border 
by another 50 positions. The President's budget also seeks $88 million 
to expand detention capacity along the southwest border. The resultant 
increase in criminal filings we expect to see from this infusion of 
resources will impact our district judges, clerks offices, probation 
and pretrial services offices, and Federal defender offices on the 
border. I would note, however, that the Judiciary's fiscal year 2009 
budget submission does not request funding for new clerks or probation 
office staff on the border or elsewhere. Congress provided the 
Judiciary with $45.4 million over the last 2 years--$20.4 million in 
fiscal year 2007 and $25 million in fiscal year 2008--to address 
immigration-related workload so, from a staffing perspective, the 
courts are well positioned in the short term to respond to the 
increased workload that we expect will materialize. However, as I just 
mentioned, we do require additional district judgeships on the 
southwest border, and construction of a new Federal courthouse in San 
Diego is the Judiciary's top space priority.
                        cost containment efforts
    The Judiciary recognizes that continuing pressures on the Federal 
budget due to the conflicts in Iraq and Afghanistan, investments being 
made to improve security here at home, and the goal of eliminating the 
budget deficit by 2012, will necessitate austere Federal spending going 
forward, particularly for non-security discretionary programs. Indeed, 
the President's fiscal year 2009 budget proposes a 0.3 percent increase 
in this category of spending, well below the rate of inflation. The 
administration and Congress are rightfully concerned about overall 
Federal spending and budget deficits, and we recognize that you face 
tough choices. I want to assure the Subcommittee that the Judiciary is 
doing its part to contain costs.
    We are now more than 3 years into an intensive effort to reduce 
costs throughout the Judiciary. As I mentioned in my testimony last 
year, this cost containment effort was born out of our fiscal year 2004 
experience in which a funding shortfall necessitated staff reductions 
of 1,350 clerk and probation office employees, equal to 6 percent of 
the courts' on-board workforce. As a result of this situation and the 
prospect of continuing Federal budget pressures, the late Chief Justice 
William H. Rehnquist charged the Judicial Conference's Executive 
Committee with developing an integrated strategy for controlling costs. 
After a rigorous 6-month review by the Judicial Conference's various 
program committees, the Executive Committee prepared, and the Judicial 
Conference endorsed in September 2004, a cost-containment strategy for 
the Federal Judiciary. The strategy focuses on the primary cost drivers 
of the Judiciary's budget--compensation costs and the rent we pay to 
the General Services Administration for courthouses and leased office 
space. We have had great cooperation Judiciary-wide as we have moved 
forward on implementing cost containment initiatives. I will highlight 
several cost containment initiatives for you.
Containing Rent Costs
    The amount of rent we pay to GSA has been a matter of concern to 
the Judiciary for a number of years. Since fiscal year 2004 we have 
made a concerted effort to contain rent costs, with considerable 
success. In fiscal year 2004, prior to the implementation of cost 
containment, we projected that our GSA rent bill would be $1.2 billion 
in fiscal year 2009. I am pleased to report that our current GSA rent 
estimate for fiscal year 2009 is now projected to be $200 million less, 
or $1 billion, 17 percent below the pre-cost containment projection. 
Following are two of our rent containment initiatives that have 
contributed to these reduced rent costs.
  --Rent Validation Project.--In recent years we have been working 
        cooperatively with GSA to reduce our space rent costs through a 
        rent validation program that has yielded significant savings 
        and cost avoidances. This rent validation initiative originated 
        in our New York courts where staff spent months scrutinizing 
        GSA rent bills and found rent overcharges. The cumulative 
        effect of this discovery were savings and cost avoidances over 
        3 fiscal years totaling $30 million. The Administrative Office 
        expanded this effort nationwide by training all circuit 
        executive offices to analyze and detect errors in GSA rent 
        billings. Although it is quite time consuming, detailed reviews 
        of GSA rent billings are now a standard business practice 
        throughout the courts. Through this national effort, in fiscal 
        year 2007 we identified additional overcharges totaling $22.5 
        million in multi-year savings and cost avoidances, bringing 
        cumulative savings/cost avoidances to $52.5 million. We 
        anticipate receiving additional rent adjustments and credits 
        resulting from over $10 million in rent errors that we recently 
        reported to GSA. By identifying and correcting space rent 
        overcharges we have been able to re-direct these savings to 
        other Judiciary requirements, thereby reducing our request for 
        appropriated funds.
  --Rent Caps.--To contain costs further, the Judiciary established 
        budget caps in selected program areas in the form of maximum 
        percentage increases for annual program growth. For our space 
        and facilities program, the Judicial Conference approved a cap 
        of 4.9 percent on the average annual rate of growth for GSA 
        rent requirements for fiscal years 2009 through 2016. By 
        comparison, the increase in GSA rent in our fiscal year 2005 
        budget request was 6.6 percent. This cap will produce a GSA 
        rent cost avoidance by limiting the annual amount of funding 
        available for space rental costs. Under this initiative, 
        circuit judicial councils around the country will be 
        responsible for managing rent costs in their circuits, which 
        will require the councils to prioritize space needs--and in 
        some instances deny requests for new space--in order to stay 
        within the 4.9 percent cap.
Containing Information Technology Costs
    Another cost containment success has been identifying and 
implementing more cost-effective approaches in deploying computer 
servers around the country. Before this initiative, each court unit 
maintained local servers to access Judiciary applications and 
databases. New technology, along with improvements in the Judiciary's 
national data communications network, has allowed the consolidation of 
servers at a single location without compromising the performance 
levels of existing applications. In some cases performance has actually 
improved. As a result of this initiative, the Judiciary reduced by 89 
the number of servers needed to run the jury management program, 
producing savings of $2 million in the first year and expected savings 
of $4.8 million through fiscal year 2012. In addition, servers that run 
the case management system in our probation program were consolidated, 
with projected savings and cost avoidances of $2.6 million through 
fiscal year 2012. The Judiciary expects expanded implementation of this 
initiative to result in significant information technology cost savings 
or cost avoidances. A big cost saver will be the consolidation of 
servers for the Judiciary's national accounting system in fiscal year 
2008, which is expected to achieve savings and cost avoidances totaling 
$55.4 million through fiscal year 2012.
Containing Personnel Costs
    A major focus of the Judiciary's cost containment efforts involves 
controlling personnel costs. At its September 2007 meeting, the 
Judicial Conference approved recommendations from a major court 
compensation study which will slow the growth in personnel costs 
throughout the Judiciary, specifically in clerks and probation offices 
and judges' chambers staff. The approved actions will reduce funding 
available to the courts for annual salary step increases for employees, 
limit the number of career law clerks (who are typically paid more than 
term law clerks), revise salary setting policies for new law clerks, 
and modernize the Federal courts' position benchmarks which govern the 
classification and grading of staff nationwide. We estimate these 
measures may save up to $300 million from fiscal year 2009 through 
fiscal year 2017.
                    innovation in the federal courts
    While we look to contain costs wherever possible, we continue to 
make investments in technologies that improve Federal court operations, 
enhance public safety, and increase public access to the courts to name 
just a few examples. The Judiciary is a leader in taking state-of-the-
art technology and adapting it to the courts' unique needs, and we 
continually look for innovative ways to apply new technologies to our 
operations. These investments are made possible through the funding we 
receive from Congress, and we are grateful for Congress's continuing 
support of our information technology program. Let me describe for you 
several of our innovations.
Use of Global Positioning System Technology
    Some of our probation and pretrial services offices are now using 
Global Positioning System (GPS) technology to monitor around the clock 
the location of individuals under pretrial release or post-conviction 
supervision. As a condition of their sentence or supervised release, an 
offender or defendant might be required to carry a GPS unit. Some GPS 
tracking devices let officers send a text message or voice message 
directly to the receiver worn by the offender enabling an alert to be 
sent if the offender wanders into forbidden territory.
    An incident that occurred in California offers an example of the 
application of GPS technology. A defendant on a GPS tracking device was 
ordered by a Federal judge to stay away from his ex-wife due to a prior 
history of domestic violence. He was also subject to an active 
restraining order. In the middle of the day, the defendant drove by his 
ex-wife's place of employment. The pretrial services officer received a 
text message alert and immediately contacted the defendant on the 
tracking device, instructing him to come to the office. The officer 
contacted the ex-wife, the court was notified, and appropriate action 
was taken. In this instance, the pretrial services officer had 
established exclusion zones around the wife's home and work. For 
convicted sex offenders whose victims included children, these 
exclusion zones can include schools, parks, and playgrounds. Many 
offenders help defray the cost of monitoring on an ability-to-pay 
basis. GPS monitoring can cost up to $9 per day, roughly double the 
cost of less expensive electronic monitoring, but still well below the 
more than $63 per day required to incarcerate an offender.
Case Management/Electronic Case Files System
    The Case Management/Electronic Case Files (CM/ECF) system is an 
electronic case management system that provides Federal courts with 
docket management capabilities, including the option of permitting case 
documents to be filed with the court over the Internet. Managing case 
filings electronically is more cost efficient than the labor-and-space 
intensive process of paper filings previously used. The electronic case 
filing system was launched in November 1995, when a team from the 
Administrative Office of the United States Courts helped the U.S. 
District Court in the Northern District of Ohio cope with more than 
5,000 document-intensive asbestos cases. The court faced up to 10,000 
new pleadings a week, a workload that quickly became unmanageable. The 
team developed a system that allowed attorneys to file and retrieve 
documents and receive official notices electronically. More than 10 
years and several upgrades later, the system has fundamentally changed 
how the entire judicial system operates. The system is currently 
operating in all of our district and bankruptcy courts and will be 
operational in all of the regional courts of appeals in early 2009. 
Over 30 million cases are on CM/ECF systems nationwide, and nearly 
350,000 attorneys and others have filed documents over the Internet. On 
average, four million new electronic documents are filed into the 
system each month, and roughly half of those are filed over the 
Internet by attorneys. CM/ECF is considered the world's most 
comprehensive court electronic case filing system. It has been one of 
the most important innovations in U.S. Federal court administration.
Public Access to Court Electronic Records
    The Public Access to Court Electronic Records (PACER) system is an 
electronic access service run by the Federal Judiciary that allows the 
public to obtain case and docket information from Federal appellate, 
district, and bankruptcy courts via the Internet. The PACER system 
offers an inexpensive, fast, and comprehensive case information service 
to any individual with a computer and Internet access. Users can 
retrieve, among other information, a listing of parties and 
participants in a case, a compilation of case-related information, such 
as cause of action, nature of suit and dollar demands, judgments or 
case status, and appellate court opinions. The data is displayed 
directly on the user's computer screen within a few seconds. The system 
is available 24 hours a day and is simple enough that little user 
training is required. The PACER program has been hugely successful. In 
2007 alone, over 350 million requests for information were processed by 
PACER. As directed by Congress, nominal fees are charged for accessing 
court records although some records are available without charge. Given 
the high-volume usage of PACER, the fees collected in the aggregate are 
substantial. Congress has authorized the Judiciary to utilize these 
fees to run the PACER program as well as to offset some costs in our 
information technology program that would otherwise have to be funded 
with appropriated funds. The Judiciary's fiscal year 2009 budget 
request assumes $68 million in PACER fees will be available to finance 
information technology requirements in the courts' Salaries and 
Expenses account, thereby reducing our need for appropriated funds.
                      the judiciary's workload \1\
---------------------------------------------------------------------------
    \1\ Unless otherwise stated, caseload figures reflect the 12-month 
period ending in June of the year cited (i.e., 2008 workload reflects 
the 12-month period from July 1, 2007 to June 30, 2008).
---------------------------------------------------------------------------
    I turn now to a discussion of the workload facing the courts. As 
indicated in the caseload table in our fiscal year 2009 budget request, 
2008 caseload projections are used to compute fiscal year 2009 staffing 
needs. Our projections indicate that caseload will increase slightly in 
probation (+1 percent) and pretrial services (+3 percent) and increase 
substantially for bankruptcy filings (+23 percent). For 2008 we are 
projecting small declines in appellate (-3 percent) and criminal (-3 
percent) caseload, and a steeper decline in civil filings (-8 percent). 
Let me discuss some recent trends and caseload drivers and offer some 
context for these projections.
Probation and Pretrial Services \1\
    Workload in our probation and pretrial services programs continues 
to grow. The number of convicted offenders under the supervision of 
Federal probation officers hit a record 115,930 in 2007 and is expected 
to increase again in 2008 to 116,900. In addition to the increased 
workload, the work of probation officers has become significantly more 
challenging. In 1985, fewer than half of the offenders under 
supervision had served time in prison. By 2007, the percentage had 
climbed to 80 percent. As these figures indicate, probation officers no 
longer deal primarily with individuals sentenced to probation in lieu 
of prison. Offenders coming out of prison on supervised release have 
greater financial, employment, and family problems than when they 
committed their crimes. In addition, the number of offenders sentenced 
in Federal court with prior criminal convictions more than doubled 
between fiscal years 1996 and 2006, and the severity of the criminal 
histories of persons under probation officer supervision has been 
increasing as well. Offenders re-entering the community after serving 
time in prison require close supervision by a probation officer to 
ensure they secure appropriate housing and employment. Successful re-
entry improves the likelihood that offenders will pay fines and 
restitution and become taxpaying citizens.
    Recent legislation will also increase the workload of probation and 
pretrial services officers. For example, we expect that the Adam Walsh 
Child Protection and Safety Act of 2006 will significantly increase the 
number of sex offenders coming into the Federal court system. The Adam 
Walsh Act also increases the registration requirements for sex 
offenders, which means probation officers must coordinate closely with 
State and local authorities to ensure that law enforcement and the 
public receive the required notice. Monitoring the behavior of sex 
offenders is challenging and requires intense supervision on the part 
of probation and pretrial services officers to protect the community.
    As I discussed earlier in my testimony, the retroactive application 
of the crack cocaine sentencing amendment will also have an impact on 
the work of probation officers although it is difficult to predict with 
certainty at this point how many current Federal prison inmates will 
gain early release and enter the Federal probation system.
Bankruptcy Filings
    The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 
(BAPCPA), implemented in October 2005, has significantly affected 
workload trends in the Nation's bankruptcy courts. While filings are 
still below pre-BAPCPA levels--751,056 filings in 2007 versus 1,635,725 
filings in 2004--we forecast that filings will increase 23 percent in 
2008 to 923,000 and top one million filings in 2009. The state of the 
economy, particularly as it impacts home foreclosures and credit 
availability, will be a major factor in the number of personal 
bankruptcies--which constitute the majority of bankruptcy cases. It is 
possible that 2008 bankruptcy filings will be above the current 
projection.
    The number of filings alone, however, should not be viewed as the 
sole indicator of overall workload. BAPCPA created new docketing, 
noticing, and hearing requirements that make addressing the petitions 
far more complex and time-consuming. Our bankruptcy courts have 
indicated that the actual per-case work required of the bankruptcy 
courts has increased significantly under the new law, at least 
partially offsetting the impact on the bankruptcy courts of lower 
filings. For example, BAPCPA requires Chapter 7 filers to complete and 
pass a complex ``means test'' and receive a credit counseling briefing 
by an approved agency. Also, filers under Chapters 7 and 13 may not 
receive a discharge of their debts unless they have completed an 
approved financial management course. These and other new requirements 
must be reviewed by the clerk's office, which must take further action 
if the filers do not meet the requirements. BAPCPA also requires more 
than 35 new motions and pleadings in various chapters of the bankruptcy 
code. Each new motion requires judicial review and can result in 
hearings, orders, and opinions, thus consuming more judicial resources.
Appellate Filings
    After hitting an all-time high of 68,313 filings in 2006, appellate 
caseload declined to 58,809 filings in 2007 and is expected to decline 
by 3 percent to 57,300 filings in 2008. This decline comes on the heels 
of significant workload growth from 2002 to 2006 during which filings 
increased 20 percent initially due to a surge in challenges to Board of 
Immigration Appeals (BIA) decisions in the appellate courts and later 
due to the large number of criminal and habeas corpus petitions filed 
by State and Federal prisoners from 2004 to 2006 challenging their 
sentences pursuant to the Supreme Court's decisions in Blakely v. 
Washington (2004), and in the consolidated cases, United States v. 
Booker and United States v. Fanfan (2005). After the initial surge of 
sentence-related filings associated with these decisions, we are now 
seeing appellate filings for criminal and habeas corpus petitions 
approach pre-Blakely and Booker/Fanfan levels.
    About one-third of all BIA decisions are challenged in the Federal 
appellate courts with 70 percent of those challenges occurring in the 
Second and Ninth Circuits. While BIA appeals have dropped in the last 
year, these cases continue to demand extensive resources since they 
often turn on a credibility determination by a Department of Justice 
immigration judge, thus requiring close judicial review of a factual 
record by the appellate courts.
Civil Filings
    Civil filings in the courts generally follow a more up and down 
filing pattern. In 2005 civil filings reached a record 282,758 filings, 
declined to 244,343 filings in 2006, then increased again to 272,067 
filings in 2007. The increase in 2007 was due primarily to asbestos 
diversity case filings in the Eastern District of Pennsylvania. The 
Judiciary projects civil case filings will continue this up and down 
pattern, decreasing 8 percent to 250,500 filings in 2008.
Criminal Filings
    Criminal filings in the Federal courts have been trending downward 
the last several years, and this trend is expected to continue through 
2008. From the previous year, filings declined 2 percent in 2005, 3 
percent in 2006, and a half-percent in 2007 to 67,503 filings. Filings 
are projected to decline another 3 percent in 2008 to 65,800 filings.
    Last year I testified that criminal filings were likely depressed 
due to significant vacancies in AUSA positions nationwide and that once 
vacancies were filled criminal filings would reverse course and begin 
to increase. As I mentioned earlier in my testimony, it now appears 
that additional resources are being provided to fill AUSA positions, 
particularly in the five judicial districts along the Southwest border 
with Mexico. Also, the administration is committing more resources to 
the prosecution of sexual exploitation of children. In fiscal year 
2008, the Department of Justice received $5 million to hire 40 
additional AUSAs to prosecute these exploitation cases under the Adam 
Walsh Act. I would emphasize that our criminal caseload projection for 
2008 does not take into account the impact additional AUSAs will have 
on criminal case filings, so we may see 2008 filings above the 
projected level.
                    fiscal year 2009 budget request
    For fiscal year 2009, the Judiciary is seeking a 7.6 percent 
overall increase above the fiscal year 2008 enacted appropriations. The 
courts' Salaries and Expenses account, which funds clerks and probation 
offices nationwide, requires a 7.4 percent increase. Fiscal year 2009 
appropriations requirements for each Judiciary account are included at 
Appendix A.
    The goal of our fiscal year 2009 request is to maintain staffing 
levels in the courts at the level Congress funded in fiscal year 2008, 
as well as to obtain funding for several much needed program 
enhancements. As I noted earlier in my testimony, we are not requesting 
additional staff for our clerks or probation offices. We believe the 
requested funding level represents the minimum amount required to meet 
our constitutional and statutory responsibilities. While this may 
appear high in relation to the overall budget request submitted by the 
administration, I would note that the Judiciary does not have the 
flexibility to eliminate or cut programs to achieve budget savings as 
the Executive Branch does. The Judiciary's funding requirements 
essentially reflect basic operating costs of which more than 80 percent 
are for personnel and space requirements.
    Eighty-six percent ($407 million) of the $475 million increase 
being requested for fiscal year 2009 funds the following base 
adjustments, which represent items for which little to no flexibility 
exists:
  --Standard pay and benefit increases for judges and staff. This does 
        not pay for any new judges or staff but rather covers the 
        annual pay adjustment and benefit increases (e.g., COLAs, 
        health benefits, etc.) for currently funded Judiciary 
        employees. The amount budgeted for the cost-of-living 
        adjustment is 2.9 percent for 2009.
  --An anticipated increase in the number of on-board senior Article 
        III judges.
  --The projected loss in non-appropriated sources of funding due to 
        the decline in carryover balances available in fiscal year 2009 
        versus the level available to finance the fiscal year 2008 
        financial plan (see discussion on the following page).
  --Space rental increases, including inflationary adjustments and new 
        space delivery, court security costs associated with new space, 
        and an increase in Federal Protective Service charges for court 
        facilities.
  --Adjustments required to support, maintain, and continue the 
        development of the Judiciary's information technology program 
        which, in recent years, has allowed the courts to ``do more 
        with less''--absorbing workload increases while downsizing 
        staff.
  --Mandatory increases in contributions to the Judiciary trust funds 
        that finance benefit payments to retired bankruptcy, 
        magistrate, and Court of Federal Claims judges, and spouses and 
        dependent children of deceased judicial officers.
  --Inflationary increases for non-salary operating costs such as 
        supplies, travel, and contracts.
  --Costs associated with Criminal Justice Act (CJA) representations. 
        The Sixth Amendment to the Constitution guarantees that all 
        criminal defendants have the right to the effective assistance 
        of counsel. The CJA provides that the Federal courts shall 
        appoint counsel for those persons who are financially unable to 
        pay for their defense.
    After funding these adjustments to base, the remaining $68 million 
requested is for program enhancements. Of this amount:
  --$33 million will provide for investments in new information 
        technology projects and upgrades, and courtroom technology 
        improvements.
  --$18 million to increase the non-capital panel attorney rate from 
        $100 to $118 per hour. I will discuss this requested increase 
        in more detail in a moment.
  --$8 million is requested for the Supreme Court's exterior 
        renovations and roof system repairs.
  --$5 million is for additional staff and associated costs to address 
        fiscal year 2009 workload requirements (32 FTE), two additional 
        magistrate judges and staff (9 FTE), library renovations and 
        new equipment at the Court of Appeals for the Federal Circuit, 
        and the start-up costs for two new Federal defender 
        organizations.
  --$4 million would provide for necessary investments in court 
        security, such as court security systems and equipment and new 
        positions at the United States Marshals Service (9 FTE).
Non-Appropriated Sources of Funding
    I would like to discuss briefly the non-appropriated sources of 
funding that the Judiciary uses to partially finance its operations and 
how they impact our appropriations needs. In addition to appropriations 
from Congress, the Judiciary collects fees from bankruptcy and civil 
case filings, from the public for on-line access to court records, and 
from other sources. Fees not utilized during the year they are 
collected may be carried over to the next fiscal year to offset 
appropriations requirements in that year. Every fee dollar collected 
that is not needed to finance current year needs represents a dollar 
less that the Judiciary must seek from Congress in the following year.
    In formulating the Judiciary's fiscal year 2009 budget request, we 
made certain assumptions regarding the level of fees and carryover that 
would be available to finance fiscal year 2009 requirements. Because 
the projection for carryover balances are below the level that was 
available to finance fiscal year 2008 operations, the fiscal year 2009 
request includes a line item requesting appropriated funds--$95 million 
in the courts' Salaries and Expenses account--to replace the 
anticipated decline in carryover balances. (New fee collections are 
projected to be flat from fiscal year 2008 to fiscal year 2009 so there 
is no restoration requested or needed for that component of our 
financing.) While it is premature for me to identify a specific amount, 
I am confident that we will not need the full $95 million we requested 
to replace carryover balances. This is due to several factors, 
including the courts' frugal spending during the continuing resolution 
for the first quarter of fiscal year 2008 and fewer judge confirmations 
than we anticipated. As we did this past year, we will keep the 
Subcommittee apprised of changes to fee and carryforward projections 
that could impact our fiscal year 2009 appropriation needs as we move 
through fiscal year 2008. The Judiciary will submit the first of two 
fiscal year 2009 budget re-estimates to the Subcommittee in May 2008.
              increase in non-capital panel attorney rate
    We believe that one program enhancement in our budget request 
deserves strong consideration in order to ensure effective 
representation for criminal defendants who cannot afford to retain 
their own counsel. We are requesting $17.5 million to increase the non-
capital panel attorney rate to $118 per hour, effective January 2009. A 
panel attorney is a private attorney who serves on a panel of attorneys 
maintained by the district or appellate court and is assigned by the 
court to represent financially-eligible defendants in Federal court in 
accordance with the Criminal Justice Act (CJA). In the fiscal year 2008 
omnibus spending bill, the Subcommittee approved an increase in the 
non-capital rate paid to these panel attorneys from $94 to $100 per 
hour, and provided a cost-of-living adjustment to the capital rate from 
$166 to $170 per hour. These new rates took effect on January 1, 2008.
    While we are very appreciative of the increase to $100 per hour for 
non-capital work, we believe a more significant increase is required to 
enable the courts to attract and retain enough qualified attorneys to 
accept appointments and to provide them a fair rate of pay. This is 
critical in order for the Judiciary to ensure that persons represented 
by panel attorneys are afforded their constitutionally guaranteed right 
to effective assistance of counsel.
    We believe there is a direct relationship between the lack of 
qualified panel attorneys available to take CJA appointments and the 
significant financial difficulties panel attorneys encounter 
maintaining their legal practices at the current rate. It is 
predominantly solo and small-firm lawyers that take on CJA cases, and 
these panel attorneys must first cover their overhead costs. With 
overhead costs of approximately $64 per hour, at the $100 rate, that 
leaves a net average of only $36 per hour, before taxes. We believe 
that this net rate of $36 per hour, when compared to the net national 
average ``market rate'' of $148 per hour for non-CJA private criminal 
cases, prevents the courts from attracting sufficient numbers of 
qualified attorneys to take CJA appointments because those attorneys 
can obtain higher pay on non-CJA cases. Each time a panel attorney is 
asked by the court to accept a non-capital CJA appointment, he or she 
must consider the inherent ``opportunity'' cost associated with the 
higher hourly rate he or she could otherwise earn on a non-CJA case.
    The CJA authorized the Judicial Conference to implement annual 
cost-of-living adjustments (COLAs) to panel attorney rates, subject to 
congressional funding. If the statutory COLAs provided to Federal 
employees (the base employment cost index component only) had been 
provided to panel attorneys on a recurring, annual basis since 1986, 
the authorized non-capital hourly rate for fiscal year 2009 would be 
$136. While the Judicial Conference supports the $136 rate, it is 
mindful of the constrained Federal budget environment and, therefore, 
proposes attaining the authorized rate in two stages, an $18 per hour 
increase in fiscal year 2009 from $100 to $118 per hour, with a second 
increase to $140 per hour in fiscal year 2010 (the $140 rate includes a 
$4 COLA to the fiscal year 2009 rate of $136). The Judiciary is 
committed to fully restoring the non-capital panel attorney rate, in a 
cost-conscious manner, by implementing the authorized rate over 2 
years.
    I will close on this topic by reiterating that the Judiciary 
greatly appreciates the $100 non-capital rate Congress provided in 
fiscal year 2008, but the concern remains that, after overhead is 
considered, the rate does not provide compensation that will attract 
enough qualified panel attorneys to take on the complex work involved 
in Federal criminal cases. I urge the Subcommittee to provide the 
funding necessary to increase the non-capital panel attorney rate to 
$118 per hour in fiscal year 2009.
               contributions of the administrative office
    I would like to briefly outline the important work performed by the 
Administrative Office (AO) of the United States Courts. Year in and 
year out, the AO provides critical support to the courts. With only a 
fraction (1.3 percent) of the resources that the courts have, the AO 
does a superb job of supporting our needs.
    The AO has key responsibilities for judicial administration, policy 
implementation, program management, and oversight. It performs 
important administrative functions, but also provides a broad range of 
legal, financial, program management, and information technology 
services to the courts. None of these responsibilities has gone away 
and new ones are continually added, yet the AO staffing level has been 
essentially frozen for 15 years. As an example, despite no new staff, 
the AO has been instrumental in implementing the Judiciary's cost 
containment strategy which has achieved significant savings and cost 
avoidances.
    In my role as Chair of the Judicial Conference Committee on the 
budget, I have the opportunity to work with many staff throughout the 
AO. They are dedicated, hard working, and care deeply about their role 
in supporting this country's system of justice.
    The fiscal year 2009 budget request for the Administrative Office 
is $82 million. The AO's request represents a current services budget, 
no additional staff or program increases are sought. All of the 
requested increase is necessary to support current services, mainly 
standard pay and general inflationary increases, as well as funding to 
replace the anticipated lower level of carryover amounts with 
appropriated funds in fiscal year 2009.
    I urge the Subcommittee to fund fully the Administrative Office's 
budget request. The increase in funding will ensure that the 
Administrative Office continues to provide program leadership and 
administrative support to the courts, and lead the efforts for them to 
operate more efficiently. Director Duff discusses the AO's role and 
budget request in more detail in his testimony.
              contributions of the federal judicial center
    I also urge the Subcommittee to approve full funding for the 
Federal Judicial Center's request of $25.8 million for fiscal year 
2009.
    The Center's director, Judge Barbara Rothstein, has laid out in 
greater detail the Center's needs in her written statement. I simply 
add that the Center plays a vital role in providing research and 
education to the courts. The Center's research and its educational 
programs are highly respected and valued for their quality and 
objectivity. The Judicial Conference and its committees request and 
regularly rely on research projects by the Center. The Center's 
educational programs for judges and court staff are vital in preparing 
new judges and court employees to do their jobs and in keeping them 
current so that they can better deal with changes in the law, and in 
tools--like technology--that courts rely on to do their work 
efficiently.
    The Center has made good use of its limited budget. It uses several 
technologies to deliver information and education to more people more 
quickly and inexpensively. The relatively small investment you make in 
the Center each year (less than one-half of 1 percent of the 
Judiciary's budget) pays big dividends in terms of the effective, 
efficient fulfillment of the courts' mission.
                               conclusion
    Mr. Chairman, I hope that my testimony today provides you with some 
insight into the challenges facing the Federal courts as well as what 
we are doing to contain costs and become more efficient. I realize that 
fiscal year 2009 is going to be another tight budget year as increased 
mandatory and security-related spending will result in further 
constrained domestic discretionary spending. We recognize the fiscal 
constraints Congress is facing. Through our cost-containment efforts 
and information technology innovations we have significantly reduced 
the Judiciary's appropriations requirements without adversely impacting 
the administration of justice. I know you agree that a strong, 
independent Judiciary is critical to our Nation. I urge you to fund 
this request fully in order to enable us to maintain the high standards 
of the U.S. Judiciary.
    Thank you for your continued support of the Federal Judiciary. I 
would be happy to answer any questions the Subcommittee may have.

                  APPENDIX A.--JUDICIARY APPROPRIATIONS
                         [Dollars in thousands]
------------------------------------------------------------------------
                                                             Percentage
                                 Fiscal year   Fiscal year     change:
                                2008 enacted      2009       fiscal year
     Appropriation account          level      President's    2009 vs.
                                 (Public Law  budget (Feb.   fiscal year
                                110-161) \1\    4, 2008)    2008 enacted
------------------------------------------------------------------------
U.S. Supreme Court:
    Salaries & Expenses.......       $66,526       $69,777          +4.9
    Care of Building and              12,201        18,447         +51.2
     Grounds..................
                               -----------------------------------------
      Total...................        78,727        88,224         +12.1
                               =========================================
U.S. Court of Appeals for the         27,072        32,357         +19.5
 Federal Circuit..............
U.S. Court of International           16,632        19,622         +18.0
 Trade........................
                               =========================================
Courts of Appeals, District
 Courts & Other Judicial
 Services:
    Salaries & Expenses:\1\
        Direct................     4,619,262     4,963,091          +7.4
        Vaccine Injury Trust           4,099         4,253          +3.8
         Fund.................
                               -----------------------------------------
          Total...............     4,623,361     4,967,344          +7.4
                               =========================================
        Defender Services \1\.       846,101       911,408          +7.7
        Fees of Jurors &              63,081        62,206          -1.4
         Commissioners........
        Court Security........       410,000       439,915          +7.3
                               -----------------------------------------
          Subtotal............     5,942,543     6,380,873          +7.4
                               =========================================
Administrative Office of the          76,036        81,959          +7.8
 United States Courts.........
Federal Judicial Center.......        24,187        25,759          +6.5
Judiciary Retirement Funds....        65,400        76,140         +16.4
U.S. Sentencing Commission....        15,477        16,257          +5.0
Direct........................     6,241,975     6,716,938          +7.6
Vaccine Injury Trust Fund.....         4,099         4,253          +3.8
                               -----------------------------------------
      Total...................     6,246,074     6,721,191          +7.6
------------------------------------------------------------------------
\1\ Pursuant to Public Law 110-161, fiscal year 2008 appropriations
  include $25 million in emergency appropriations ($14.5 million in the
  courts' Salaries and Expenses account and $10.5 million in the
  Defender Services account) for workload associated with DOJ and DHS
  immigration enforcement initiatives.

                                 ______
                                 
Prepared Statement of Paul R. Michel, Chief Judge, United States Court 
                   of Appeals for the Federal Circuit
    Mr. Chairman, thank you for allowing me to submit my statement 
supporting the United States Court of Appeals for the Federal Circuit's 
fiscal year 2009 budget request.
    Our request totals $32,357,000, an increase of $5,285,000 (19.5 
percent) over the fiscal year 2008 appropriation of $27,072,000. The 
primary justification for such an unusual increase is the need to 
accommodate seven senior judges who will expand our court's judicial 
output in 2009.
    Thirty percent of this requested increase ($1,575,000) is for 
Congressionally and contractually mandated adjustments to base (such as 
COLAs and escalation in rent and contracts). The only addition included 
in the adjustment to the base appropriation is $298,000 to lease 
chambers outside the courthouse for senior judges for whom there is no 
space in the courthouse.
    Four Federal Circuit judges are eligible to take senior status now; 
three more will become eligible in fiscal year 2009; and another judge 
will become eligible in fiscal year 2010. Of the three Federal Circuit 
judges who will become eligible to take senior status in fiscal year 
2009, at least two are expected to do so. An increase to the Court's 
base of $298,000 will cover the cost of an off-site lease for these two 
judges and up to three of the other four senior judges who are eligible 
for senior status.
    Seventy percent of the Federal Circuit's fiscal year 2009 budget 
request, $3,710,000, is to fund three specific program requests.
  --The first specific program request ($1,860,000) is to build out 
        off-site chambers for five senior judges.
  --The second specific program request ($932,000) is for 12 law clerk 
        positions for active judges, and
  --The third specific program request ($918,000) is for court 
        improvements and a court employee position.
                                 part 1
    Half of the 70 percent increase for specific program requests 
($1,860,000) will fund build out of leased chambers for five of the 
seven judges who either are, or will be, eligible to take senior status 
in fiscal year 2009. This amount is based on an estimate coordinated 
with the Administrative Office of the United States Courts and on 
personal experience with GSA in renovating chambers in this courthouse. 
This amount will provide the leased chambers with the furniture, 
furnishings and finishes consistent with the U.S. Courts Design Guide. 
The amount requested is the amount needed to support judges eligible 
and expected to take senior status now through fiscal year 2010 and for 
whom there is no room in the existing courthouse.
    As noted, two of the seven judges who will be eligible to take 
senior status have indicated a desire to do so when they become 
eligible for senior status in fiscal year 2009. Personal circumstances 
make it likely that at least two more will also do so. It is imperative 
then that the Federal Circuit acquire suitably built-out, off-site 
leased chambers for the two judges who have indicated a desire to take 
senior status in fiscal year 2009, two or three of the four already 
eligible, and another who is likely to do so in fiscal year 2010.
                                 part 2
    Twenty-five percent of the specific program requests ($932,000) 
will fund 12 additional law clerk positions. The Court is requesting 
$932,000 to cover the cost of hiring an additional law clerk for each 
of the court's active judges for 6 months of fiscal year 2009. The 
court's increased workload now justifies funding a fourth law clerk for 
each active judge. Four law clerks are the norm at every Federal 
Appeals Court in the Nation except the Federal Circuit. In our fiscal 
year 2008 appropriation, Congress authorized three additional law 
clerks but provided no funding. We are now requesting funding for all 
12 additional law clerks: the three approved but unfunded in fiscal 
year 2008, and the remaining nine, for a total of 12, or one per judge.
    Patent infringement cases make up one-third or more of the Federal 
Circuit docket. The number of patent infringement cases has grown by 
more than 25 percent in the 15 years since the third clerk was first 
provided. Patent infringement cases are critical to the Nation's 
economy, and the decisions of the Federal Circuit in these cases often 
have significant and sometimes dramatic economic implications for 
parties whose patents are upheld and found to have been infringed, 
whose patents are found not to have been infringed by other parties, 
and many other economic actors. The difficulty and complexity of patent 
infringement and other intellectual property cases have increased 
exponentially in recent years.
    Most of the patent cases now filed in the Federal Circuit Court of 
Appeals are highly technical and require great insight and judgment. 
The issues presented in these cases involve arcane breakthroughs on the 
frontiers of science, technology, manufacturing, engineering, 
mathematics and medicine. In such cases legal judgments must be made, 
not only about the law itself but often on the basic underlying 
technical innovation, with few if any precedents, analogies or 
objective metrics to apply to help determine the outcome.
    Many such cases involve a multitude of issues, no one of which can 
be ignored in an effort to narrow and focus the decision-making process 
as so often happens on appellate review. In patent infringement cases, 
all issues must typically be left together because together they frame 
the problem and the outcome. The practical effect is that one case 
takes on the nature of several, whose many issues must be understood 
individually and collectively before the court can integrate them into 
a unifying substantive decision.
    Timeliness is also an issue in many of these cases because the 
speed of technological change can render a delayed decision essentially 
ineffectual in a rapidly-changing economic marketplace.
    In the appeal of such cases the question is not only whether the 
law was correctly applied below, but also whether the science or 
technology was understood correctly by the trial judge or jury. The 
latter issue is especially important in the innovative appeals that 
come so often before this court, where there are few if any boundaries, 
signposts, or rules to guide the deciding judges. In many cases the 
court is required to engage in de novo review. This means the judges 
must review all elements of the decision below, in some cases retracing 
the actual footwork of the trial judge, if not actually embarking on 
entirely new lines of thought, logic and analysis.
    In patent infringement and other intellectual property cases most 
judges and their law clerks have to master an unfamiliar field of 
science and draw the best conclusions they can from scarce and limited 
resources. Because judges are assigned to panels randomly and not by 
specific subject matter expertise, all judges and their law clerks on 
the Federal Circuit are required to engage in extensive, and 
fundamental scientific inquiries in every area of science and 
technology. The practical effect is that each judge with his or her 
Chambers staff is engaged simultaneously in varied and complicated 
exercises, as opposed to deciding a series of often less complex, 
single issue cases, as in other courts of appeals.
    The Federal Circuit's need for additional law clerks is based on an 
increased caseload in highly technical and complex appeals. Having a 
fourth law clerk would ensure that the judges of the United States 
Court of Appeals for the Federal Circuit can give the Nation, 
practitioners and litigants and the Patent and Trademark Office timely 
and thoughtful deliberation on the many challenging, critical and 
complex issues that come before the Court.
                                 part 3
    Approximately 25 percent of the specific program requests 
($918,000) will fund the following:
  --Cooling equipment for the network server room ($350,000);
  --A new Internal Controls Analyst position ($71,000);
  --Renovations to the Circuit Library ($200,000);
  --Enhancements to courtroom computer technology ($255,000); and
  --Furniture and equipment for the new positions requested ($42,000).
    These items are important to the management and internal operation 
of the United States Court of Appeals of the Federal Circuit.
    Permanent Cooling Equipment.--The Court requests $350,000 to 
provide permanent cooling equipment for the network server room. The 
Court's server room was jerry-built out of an internal office space. It 
was never properly configured, ventilated, wired or equipped. Following 
several instances of dangerously high temperatures, we took temporary 
steps to mitigate some of the immediate problems. These funds would 
enable us to reconfigure and cool the server room properly, thereby 
saving the life of expensive hardware and equipment and greatly 
improving the reliability of information technology for the court's 
judges and staff.
    Internal Controls Analyst.--The Court is requesting $71,000 for a 
new Internal Controls Analyst position which was authorized and 
encouraged throughout the judiciary by the Judicial Conference. We have 
already assigned existing staff additional duties to conduct internal 
audits, inspections and inventories. But having a dedicated, trained 
professional to perform these responsibilities would fulfill the vision 
the Judicial Conference contemplates and materially improve the 
stewardship of the court's property, funds, and internal procedures.
    Circuit Library Renovations.--The Court is requesting $200,000 to 
design and construct renovations to the Circuit Library, which has not 
been renovated since the courthouse was built in 1965. These modest 
renovations would improve access to and efficiency in managing the 
Library collection.
    Courtroom Technology Enhancements.--The Court is requesting 
$255,000 to finance technological enhancements in our third courtroom, 
consistent with long-standing policy of the Judicial Conference. Such 
enhancements include digital sound recording equipment to enable 
uploading the audio portion of oral arguments on the court's website; 
laptop connectivity equipment and training to bring the courtroom into 
the 21st century and allow judges and their law clerks and counsel to 
use personal computers during arguments; under-floor cabling for 
safety, security and easy access; and video-conferencing infrastructure 
for remotely conducted oral arguments.
    Furniture and Equipment.--The Court is requesting $42,000 for 
furniture and equipment for the new positions described above: 12 law 
clerks and an internal controls analyst.
    Mr. Chairman, I would be pleased to answer any questions the 
Committee may have or to meet with the Committee members or staff about 
our budget request. Thank you.
                                 ______
                                 
Prepared Statement of Jane A. Restani, Chief Judge, United States Court 
                         of International Trade
    Mr. Chairman, Members of the Committee: I would like to once again 
thank you for providing me the opportunity to submit this statement on 
behalf of the United States Court of International Trade, which is 
established under Article III of the Constitution with exclusive 
nationwide jurisdiction over civil actions pertaining to matters 
arising out of the administration and enforcement of the customs and 
international trade laws of the United States.
    The Court's budget request for fiscal year 2009 is $19,622,000. 
This represents an overall increase of $2,990,000 or 18 percent over 
the Court's fiscal year 2008 enacted appropriation of $16,632,000. The 
primary reason for this increase in the fiscal year 2009 budget request 
is a substantial increase in GSA rent charges. The total GSA rent 
estimate for fiscal year 2009 is $7,527,041, which is an increase of 
$2,336,000 over the fiscal year 2008 rent estimate. To put these 
charges in perspective, it is important to note that these fiscal year 
2009 rent charges represent 78 percent of the Court's total requested 
increase and 38 percent of the Court's total requested budget. The rent 
rate increase reflects a 50 percent increase in the shell rate as a 
result of a new appraisal by GSA. While the shell rate is primarily 
responsible for the increase in GSA rent charges, those increase 
charges also include a new expenditure of $803,012 for the amortized 
cost of the Court's Congressionally-approved security pavilion. The 
process for the construction of this security pavilion began in fiscal 
year 2002 when Congress authorized $75,000 for an architectural 
analysis of the repairs and upgrades needed to ensure the health, 
security and effective operation of the Court. The results of this 
analysis eventually led to the construction of the security pavilion 
that will be completed toward the end of fiscal year 2008.
    Despite the substantial increase in rent charges, which is outside 
of the Court's control, the Court continues, as it has done for the 
past 13 years, to budget conservatively and request only funds that 
will provide for mandatory increases in pay, benefits and other 
inflationary factors, as well as funds for the essential on-going 
operations and initiatives of the Court. These increases are in line 
and consistent with the Court's prior average budgetary requests of 4.8 
percent. I note also that these modest increases include increases in 
costs paid to the Federal Protective Service for basic and building-
specific security surcharges. The security surcharges provide for the 
Court's pro-rata share of installing, operating and maintaining systems 
for the critical and necessary security of the Federal Complex in lower 
Manhattan.
    Through the use of its annual appropriation and the Judiciary 
Information Technology Fund (JITF), the Court continues to promote and 
implement the objectives set forth in its Long Range Plan. These 
objectives promote access to the Court through the effective and 
efficient delivery of services and information to litigants, the bar, 
public, judges and staff. As a national court, this access is critical 
in realizing the Court's mission to resolve disputes by (1) providing 
cost effective, courteous and timely service, (2) providing 
independent, consistent, fair and impartial interpretation and 
application of the customs and international trade laws and (3) 
fostering improvements in customs and international trade law and 
practice and improvement in the administration of justice.
    The Court continues to aggressively implement its information 
technology and cyclical maintenance/replacement programs. In fiscal 
year 2007, the Court: (1) purchased, configured and tested three new 
replacement servers, two new file servers and one internet server; (2) 
tested the new 3.1 version of the Court's customized version of the 
Federal Judiciary's Case Management/Electronic Case Files (CM/ECF) 
System; (3) cyclically upgraded, replaced and supported desktop 
computers and printers throughout the Court; (4) upgraded the Court's 
photo-copiers with new digital copiers with scanning and faxing 
capabilities; (5) installed the new version of Word Perfect; (6) 
supported and maintained all technical equipment and software 
applications; and (7) utilized an Administrative Office contract for 
professional consulting services for an evaluation of the needs of the 
Court in the design and implementation of a new video conferencing 
system. Additionally, in fiscal year 2007, the Court continued its 
cyclical maintenance program by: (1) refurbishing the finance/property/
procurement and the technical development support sections of the 
Clerk's Office; and (2) refurbishing two case file rooms and the 
confidential storage room for better space utilization.
    In fiscal year 2008, the Court plans to expend funds to: (1) review 
and subsequently implement the consultant's recommendations, mentioned 
in the above, for the purchase of a new video conferencing system; (2) 
install the file and internet servers and replace the Court's voice, 
fax and domain name servers; (3) replace desktop computer systems and 
VPN laptops in accordance with the Judiciary's cyclical replacement 
program; (4) upgrade and support existing software applications; (5) 
purchase new software applications to ensure the continued operational 
efficiency of the Court; and (7) support Court equipment by the 
purchase of yearly maintenance agreements. The Court will also continue 
to expand its developmental and educational programs for staff in the 
areas of job-related skills and technology.
    In fiscal year 2009, the Court will not only remain committed to 
using its carryforward balances in the Judiciary Information Technology 
Fund to continue its information technology initiatives and to support 
the Court's short-term and long-term information technology needs, but 
will also continue its commitment to its cyclical replacement and 
maintenance program for equipment and furniture for the Courthouse. 
This latter program not only ensures the integrity of equipment and 
furnishings, but maximizes the use and functionality of the internal 
space of the courthouse. Additionally, the fiscal year 2009 request 
includes funds for the support and maintenance of the Court's upgraded 
security systems. Lastly, the Court will continue its efforts to 
address the educational needs of the bar and Court staff.
    As I have continually stated in previous years, the Court remains 
committed to maintaining its security systems to ensure the protection 
of those who work in and visit the Courthouse. The Court is looking 
forward to the completion of its security pavilion in the third quarter 
of fiscal year 2008. This pavilion is expected to be fully operational 
in fiscal year 2009. The Court has worked in partnership with GSA in 
the design, construction and completion of this entrance pavilion and 
is most gratified to see that everyone's efforts and hard work will 
finally be realized.
    I would like to again emphasize that the Court will continue to 
conservatively manage its financial resources through sound fiscal, 
procurement and personnel practices. As a matter of internal operating 
principles, the Court routinely has engaged in cost containment 
strategies in keeping with the overall administrative policies and 
practices of the Judicial Conference. For over 5 years the Court has 
only requested funds to maintain current services. The extraordinary 
increase in the fiscal year 2009 projected rent charges has caused 
concerns regarding the Court's ability to maintain current services 
without additional funds to support the rent increase. In an effort to 
lessen the projected impact of this rent increase, at the end of fiscal 
year 2007 and continuing into fiscal year 2008, the Court began the 
initial review process of the fiscal year 2009 rent rate. Several 
meetings were held with high level regional GSA personnel responsible 
for the review and implementation of the rent pricing rates. 
Additionally, the Clerk of Court met with the Administrative Office. In 
order to proceed with the process and at the suggestion of the 
Administrative Office, the Court, in fiscal year 2008, will issue a 
work order for an independent appraisal analysis. Once the new 
appraisal is completed and reviewed, subsequent meetings will be held 
with GSA's high level regional and national office personnel in an 
effort to reduce the high rent increase.
    Lastly, I would like to personally extend my deepest thanks and 
appreciation to Congress for recognizing the needs of the Court by 
providing, in fiscal years 2007 and 2008, adequate funding to maintain 
current services. I am confident that Congress, in fiscal year 2009, 
will provide the needed funds for the increase in rent costs, thereby 
enabling the Court to continue to operate in a cost effective and 
efficient manner.
    The Court's ``General Statement and Information'' and 
``Justification of Changes,'' which provide more detailed descriptions 
of each line item adjustment, were submitted previously. If the 
Committee requires any additional information, we will be pleased to 
submit it.
                                 ______
                                 
  Prepared Statement of Hon. Barbara J. Rothstein, Director, Federal 
                            Judicial Center
    I am Barbara Rothstein. I have been the Center's director since 
2003, and a district judge since 1980. I am pleased to submit the 
Center's 2009 budget request on behalf of the Center's Board, which the 
Chief Justice chairs, and which approved this request.
    First, the Center is grateful for the efforts of Congress to 
provide in fiscal year 2008 not only full adjustments to its 2007 base 
(for only the second time in more than a decade) but also $156,000 for 
three new positions (30 percent of the $504,000 we sought in fiscal 
2008 to restore 10 of the 22 Center positions vacated and frozen since 
2003 because of budget shortfalls).
    Our 2009 request is for $25,759,000, a $1,572,000 (or 6.5 percent) 
increase over 2008. The increase includes $1,060,000 for standard 
adjustments to base, $387,000 for four full-time equivalent positions 
(seven positions for approximately 6 months), and $125,000 for critical 
education and training programs.
    Before providing more detail on this request, let me provide you 
with a little background on the Center and its activities. I hope with 
this description to convey to you the important contribution that the 
Center makes to the effective and efficient functioning of the Federal 
courts.
                the center's contribution to the courts
    The Center's mission is to provide objective, well-grounded 
empirical research and balanced, effective educational programs for the 
courts.
    The courts, and particularly the Judicial Conference of the United 
States, as well as Congress and the public, are regular consumers of 
the Center's research projects. They rely on the Center for thorough, 
unbiased, well-documented research. Examples include examining the 
impact of the Class Action Fairness Act of 2005 on the resources of the 
Federal courts; providing information to assist judges in handling 
capital cases; and developing empirically sound case weights that 
accurately reflect judicial workload. Not only do projects such as 
these help judges decide cases efficiently and fairly, they also help 
the judiciary and Congress make better-informed decisions about 
policies and procedures affecting the courts.
    Center education programs are vital to judges and court staff. For 
new judges, orientation programs enable them to assume their new 
responsibilities quickly. Continuing education programs bring judges up 
to date on topics ranging from case-management techniques to new 
statutes and case law. (For example, the Center quickly responded to 
the U.S. Sentencing Commission's decision to retroactively apply 
changes to the sentencing guidelines on crack cocaine by providing 
educational programs and other resources to help judges, probation 
officers, and others deal carefully, efficiently, and fairly with the 
many issues this raised.)
    Court staff, who play a critical role in supporting judges and 
ensuring the efficient operation of the courts, rely on the Center for 
educational programs and materials that help them do their jobs better 
(for example, integrating new technologies and executing cost-
containment strategies). The Center's Professional Education Institute, 
which provides basic and advanced programs on leadership and management 
for managers and supervisors at all levels in the courts, is a key 
component of court staff training.
    The Center uses a wide range of tools to deliver education. One 
reality of the information age is that people can (and expect to) 
receive information in many different ways. Where once the Center 
relied almost exclusively on in-person programs, audiotapes, and hard-
copy publications to reach judges and court staff, we have expanded 
into satellite television broadcasting, teleconferencing, and use of 
the Internet and the courts' intranet, and, more recently, web-
conferencing and streaming video. All these delivery means are needed 
to meet the diverse needs of a diverse population of judges, managers, 
and staff.
    The importance of the Center's educational programs is reflected in 
their use by the courts. All Center training is voluntary; large 
numbers of judges and court staff choose to participate in Center 
programs and use its services because they know the Center's products 
will help them do their jobs better. In 2007, over 9,000 employees of 
the courts (including over 2,000 judges) attended Center programs in 
person--over half did so in their own districts. Over 1,000 court staff 
participated in Center video, audio, and web conferences, and thousands 
of judges and court staff watched Center television programs, accessed 
resources and downloaded materials from the Center's intranet site, and 
used Center publications.
          the center has managed its appropriation responsibly
    Understanding the need for fiscal responsibility, the Center has 
made careful use of its appropriation each year. As I noted earlier, we 
use a wide variety of cost-effective delivery tools to provide 
education and information to judges and staff efficiently. The various 
delivery tools we use have enabled us to reach a larger and larger 
audience for less money than we could with only one or two of these 
media. But new technology also requires a highly professional staff 
with diverse skills in order to take full advantage of these tools and 
to identify and implement newer technologies as they emerge.
    In-person programs remain a vital part of our education efforts. 
Here we economize in several ways. Most in-person staff training (and 
some judge education) is done by bringing faculty to the courts for 
local training. Most programs to which participants must travel are 
conducted in hotels in large cities where we can negotiate reasonable 
rates and take advantage of competitive airfares. We conduct smaller 
seminars in collaboration with several outstanding law schools, 
enabling us to avoid faculty and overhead costs.
    We stretch our appropriation by working closely with our sister 
agencies, the Administrative Office of the U.S. Courts and the U.S. 
Sentencing Commission. We regularly consult with them to avoid 
duplicative efforts, and we often provide them an opportunity to convey 
their information to the courts at Center-sponsored programs.
                 the center's fiscal year 2009 request
    Our request for 2009 is modest--standard adjustments to our 2008 
base, $387,000 to enable us to fill the seven positions sought but not 
funded in our fiscal year 2008 request, and $125,000 for programs that 
are needed but which we cannot currently afford without cutting equally 
important programs elsewhere. The seven positions will return the 
Center to approximately its fiscal year 2005 staffing level, but that 
level will still be more than 10 percent below the number of staff the 
Center had as recently as 2003, and over 20 percent below the number of 
staff employed by the Center in the early 90s. With these resources we 
can continue to help the courts prepare for and meet the many 
substantive, procedural, and operational challenges they face. The 
additional program funds would provide expanded programming for judges 
on sentencing, ethics, and case management (including the use of 
information technology). These additional funds would also provide 
programs for attorneys in the courts; the Center has not kept pace with 
the growing educational needs of these attorneys. The requested amounts 
represent a total increase of only 6.5 percent over the Center's fiscal 
year 2008 level. I ask you to please find the resources to fund them in 
full.
    Thank you for your careful consideration of our request. I would be 
pleased to respond to any questions you may have.
                                 ______
                                 
     Prepared Statement of the United States Sentencing Commission
    Chairman Durbin, Ranking Member Brownback, and members of the 
subcommittee, the United States Sentencing Commission thanks you for 
the opportunity to submit this statement in support of its 
appropriations request for fiscal year 2009. The Commission's statutory 
mission, as set forth in the Sentencing Reform Act of 1984, continues 
to be both reaffirmed and significantly impacted by recent United 
States Supreme Court decisions regarding Federal sentencing policy. 
Full funding of the Commission's fiscal year 2009 request will ensure 
that the Commission can continue to fulfill its statutory mission.
                          resources requested
    The Commission is requesting $16,257,000 for fiscal year 2009, 
representing a 5 percent increase over the fiscal year 2008 
appropriation of $15,477,000. The Commission recognizes that it must 
use its allotted resources carefully and that Congress expects the 
same. The Commission accordingly has tailored its fiscal year 2009 
request narrowly and is seeking a limited increase over its fiscal year 
2008 appropriation to account for inflationary increases and certain 
adjustments for personnel costs.
       justification for the commission's appropriations request
    The statutory duties of the Commission include, but are not limited 
to: (1) developing sentencing guidelines to be determined, calculated, 
and considered in Federal criminal cases; (2) collecting, analyzing, 
and reporting Federal sentencing statistics and trends; (3) conducting 
research on sentencing issues in its capacity as the clearinghouse of 
Federal sentencing data; and (4) providing training on sentencing 
issues to Federal judges, probation officers, law clerks, staff 
attorneys, defense attorneys, prosecutors, and others.
    These statutory duties and the continuing importance of the 
sentencing guidelines have repeatedly been reaffirmed by recent Supreme 
Court decisions beginning with United States v. Booker.\1\ In Booker, 
the Supreme Court reemphasized the Commission's continuing role with 
regard to (writing Guidelines, collecting information about district 
court sentencing decisions, undertaking research, and revising the 
Guidelines accordingly.'' \2\ In Rita v. United States,\3\ the Supreme 
Court reinforced the role of the Commission and the importance of the 
guidelines in holding that a court of appeals may apply a presumption 
of reasonableness to a sentence imposed within the properly calculated 
sentencing guideline range. The Court noted that ([t]he Commission's 
work is ongoing. The statutes and the Guidelines themselves foresee a 
continuous evolution helped by the sentencing courts and courts of 
appeals in that process.\4\ In Gall v. United States,\5\ the Court 
reemphasized that ``([a]s a matter of administration and to secure 
nationwide consistency, the Guidelines should be the starting point and 
the initial benchmark'' in determining an appropriate sentence.\6\
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    \1\ 543 U.S. 220 (2005).
    \2\ 543 U.S. at 264.
    \3\ 127 S. Ct. 2456 (2007).
    \4\ Id. at 2464.
    \5\ 128 S. Ct. 586 (2007).
    \6\ Id. at 596.
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    While reaffirming the ongoing nature of the Commission's work, 
these decisions also have had a significant impact on that work. 
Consistent with Booker and its progeny, the Commission has continued 
its core mission to review and revise the guidelines, taking into 
account 18 U.S.C. Sec.  3553(a) and other congressional statutes and 
directives and in response to information it receives from sentencing 
courts, Congress, the Executive Branch, Federal defenders, and others. 
The Commission also has increased its efforts to provide training on 
Federal sentencing issues, including application of the guidelines, to 
Federal judges, probation officers, law clerks, staff attorneys, 
prosecutors, defense attorneys, and others.
    Furthermore, in response to these Supreme Court cases, the 
Commission has continued to refine its data collection, analysis, and 
reporting efforts to provide real-time data about Federal district 
court sentencing practices and trends. The Commission must continue to 
disseminate sentencing information in real-time and in a thorough 
manner so that Congress and others can be fully informed and advised on 
sentencing policy in the wake of the Booker line of cases. In addition, 
the Commission must continue to monitor appellate case law applying 
these cases, requiring the Commission to further refine its appellate 
court database.
    Despite the impact of these cases, the Commission is not requesting 
program increases for fiscal year 2009. The Commission has worked 
diligently over the past several years to maximize its resources 
overall and appreciates the support and funding it has received from 
Congress.
Sentencing Policy Development and Guideline Promulgation
    As part of its statutory duty to develop sentencing guidelines to 
be determined, calculated, and considered in Federal criminal cases, 
the Commission promulgated a number of guideline amendments during the 
amendment cycle ending on May 1, 2007. These amendments, which absent 
congressional action to the contrary became effective on November 1, 
2007, related to several substantive areas of the criminal law, 
including transportation, terrorism, intellectual property, and drug 
offenses. As part of this work, the Commission updated its extensive 
2002 report on Federal cocaine sentencing and amended the guidelines 
prescribing sentences for crack cocaine offenses, keeping the guideline 
penalties within the statutorily-prescribed mandatory minimum 
sentences. The Commission received voluminous public comment on this 
issue, including whether these changes should be applied retroactively. 
It held multiple public hearings on the amendment and the issue of 
retroactivity, receiving testimony from a cross-section of witnesses. 
Based on this testimony and its own research, the Commission decided to 
give retroactive effect to its amendment for crack cocaine offenses. It 
now is working closely with the Federal criminal justice community to 
ensure its efficient application.
    For the amendment cycle ending May 1, 2008, the Commission is 
considering several guideline amendments in response to recent 
congressional action. The Commission has proposed amendments in 
response to the Animal Fighting Prohibition Enforcement Act of 2007, 
the Honest Leadership and Open Government Act of 2007, the Emergency 
and Disaster Assistance Fraud Penalty Enhancement Act of 2007, and the 
Court Security Improvement Act of 2007. The Commission also is 
considering amendments in the areas of immigration offenses, drug 
offenses, and criminal history. These proposed amendments respond to 
input received from the criminal justice community and reflect the 
Commission's ongoing work to refine the guidelines in accordance with 
its statutory obligations.
    Consistent with the requirements of the Sentencing Reform Act of 
1984, the Commission engages in a collaborative process for sentencing 
policy development and guideline promulgation. That process continues 
to include significant outreach to, and input from, representatives of 
the criminal justice community, as well as the review of pertinent 
literature, data, and case law. For example, the Commission recently 
held a public briefing session on disaster fraud offenses and the 
illegal use of human growth hormone. During this briefing session, the 
Commission received testimony from the Department of Justice, the 
Federal Defenders Service, the Department of Housing and Urban 
Development, the American Red Cross, and the Food and Drug 
Administration.
Collecting, Analyzing and Reporting Sentencing Data
    In fulfillment of its statutory duties related to collecting, 
analyzing, and reporting Federal sentencing statistics and trends, the 
Commission collects documentation from the district courts on over 
70,000 Federal felony and class A misdemeanor cases annually.\7\ From 
this documentation, the Commission extracts, analyzes, and reports 
information on national sentencing trends and practices. As with other 
aspects of the Commission's statutory mission, data collection, 
analyzing, and reporting efforts continue to be impacted by the Supreme 
Court's recent sentencing-related decisions.
---------------------------------------------------------------------------
    \7\ See 28 U.S.C. Sec.  994(w), which requires the chief judge of 
each district court, within 30 days of entry of judgment, to provide 
the Commission with: (1) the charging document; (2) the written plea 
agreement (if any); (3) the Presentence Report; (4) the judgment and 
commitment order; and (5) the statement of reasons form.
---------------------------------------------------------------------------
    Immediately after the Supreme Court's 2004 decision in Blakely v. 
Washington,\8\ the Commission recognized that one of the most critical 
functions it could perform was reporting timely and accurate sentencing 
data. The Commission refined its data collection, analysis, and 
reporting requirements to such a degree that it was able to produce 
relevant information beyond that which it promulgated in its annual 
reports and sourcebooks. By the time the Supreme Court issued its 
Booker decision in January 2005, the Commission was able to provide 
real-time data about national sentencing trends and practices.
---------------------------------------------------------------------------
    \8\ 542 U.S. 296 (2004). Blakely was a precursor to the Booker 
decision, which applied to a State guideline sentencing scheme. After 
the Blakely decision, several Federal courts questioned whether the 
Federal sentencing guideline system was still viable and Federal 
sentencing practices became uncertain. The Commission's data collection 
and analysis efforts assisted the criminal justice community in 
evaluating the impact of Blakely, and later Booker, on the Federal 
system.
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    The Commission further refined its processes throughout fiscal 
years 2006 and 2007 to maximize the information it made available to 
the criminal justice community. The Commission now provides detailed 
quarterly national sentencing data similar to the format and types of 
data produced in its year-end annual reports. In addition, the 
Commission has begun to provide real-time data on the impact on Federal 
sentencing practices of the Supreme Court's recent decisions in Rita, 
Gall, and Kimbrough v. United States.\9\ The Commission also has 
expedited publication of its year-end annual reports, which are now 
released in February of each year. For fiscal year 2007, the Annual 
Report and Sourcebook contained information on 72,865 Federal cases, 
which represents approximately 24,000 more cases than the Commission 
processed a decade ago. The information contained in these reports and 
other analyses conducted by the Commission are used by, among others, 
Congress, the judiciary, the Department of Justice, defense 
practitioners, and academics.
---------------------------------------------------------------------------
    \9\ 128 S. Ct.558 (2007).
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Information Technology Issues Associated with Data Collection, Analysis 
        and Reporting
    Over the past 3 fiscal years, the Commission has apprised Congress 
of its development of an electronic document submission system that 
enables courts to electronically submit the five statutorily required 
sentencing documents directly to the Commission. This system is now 
used by 91 of the 94 judicial districts, an increase from 80 districts 
in fiscal year 2007 and 64 districts in fiscal year 2006. The 
electronic document submission system has greatly alleviated the 
Courts' need to spend judicial resources on copying, bundling, and 
mailing hard copies to the Commission.
    During fiscal years 2008 and 2009, the Commission intends to 
continue to make technological advancements related to data collection, 
analysis, and reporting. For example, working with the courts, the 
Commission has begun to advance the evolution of its electronic 
submission system to a web-based system with the ability to accept both 
the statutorily required sentencing documents and data fields from the 
courts. Specific projects include the planning, coordination, and 
implementation of a pilot project for the expanded use of this web-
based system.
            Increased Requests for Commission Work Product from 
                    Congress
    In addition to providing quarterly and annual data reports on 
national sentencing practices, the Commission continues to experience 
increased requests for particularized data analysis from Congress. The 
Commission is statutorily required to assist Congress in assessing the 
impact proposed criminal legislation will have on the Federal prison 
population. These assessments are often complex, time-sensitive, and 
require highly specialized Commission resources. The Commission also 
has experienced an increase in requests for information from Congress 
on issues such as drugs, gangs, fraud, immigration, and sex offenses. 
The Commission increasingly is providing data to assist Congress during 
oversight and legislative hearings on proposed changes to substantive 
areas of the criminal law. Informational requests from the 
Congressional Research Service have also increased. The Commission 
anticipates that congressional requests will continue to increase 
throughout fiscal year 2009 and looks forward to fulfilling them in a 
timely and thorough manner.
Conducting Research
    The Sentencing Reform Act of 1984 directed the Commission to 
establish a research agenda as part of its role as the clearinghouse on 
Federal sentencing statistics and policy and to assist the courts, 
Congress, and the Executive Branch in the development, maintenance, and 
coordination of sound sentencing policies. As part of this statutory 
mission, the Commission issued its fourth comprehensive report on 
Federal cocaine sentencing policy in May 2007. It also released an 
analysis on the impact of the amendment to the guidelines for crack 
cocaine offenses if it were given retroactive effect. The Commission's 
research agenda in fiscal year 2008 includes reports associated with 
its policy work and other projects of interest to the criminal justice 
community. One of these projects is an examination of alternatives to 
incarceration, which will include a 2-day symposium featuring leading 
experts in the field.
Training and Outreach
    The Sentencing Reform Act of 1984 also directed the Commission to 
provide specialized sentencing training and guidance to the criminal 
justice community. In fulfillment of this statutory duty, the 
Commission provides training, technical assistance, and other 
educational programs to Federal judges, probation officers, law clerks, 
staff attorneys, prosecutors, and defense attorneys throughout the 
year. The Commission's training and outreach efforts have expanded in 
each of the past four years, particularly in response to the Supreme 
Court's recent sentencing-related decisions and to the Commission's 
annual promulgation of guideline amendments. In fiscal years 2007 and 
2008, the Commission provided training in every Federal judicial 
circuit and a majority of the districts. It also participated in 
numerous symposia, conferences, and workshops. In May 2008 in Orlando, 
Florida, the Commission will co-host its annual national training 
program at which several hundred participants will receive Federal 
sentencing guideline training. The Commission expects that the need to 
provide specialized training on Federal sentencing issues will continue 
to increase throughout fiscal year 2009.
                                summary
    The Commission remains uniquely positioned to assist all three 
branches of Government in ensuring sound and just Federal sentencing 
policy. Located in the judicial branch and composed of Federal judges, 
individuals with varied experience in the Federal criminal justice 
community, and ex-officio representatives of the Executive Branch, the 
Commission is an expert, bipartisan body that works collaboratively 
with Congress. It therefore sits at the crossroads where all three 
branches of Government intersect to determine Federal sentencing 
policy.
    The Commission appreciates the funding it has received from 
Congress to meet its ever-increasing needs. Full funding of the 
Commission's fiscal year 2009 request will ensure that the Commission 
continues to fulfill its statutory mission to develop Federal 
sentencing guidelines, collect, analyze and report Federal sentencing 
statistics and trends, conduct research on sentencing issues, and 
provide training to the criminal justice community. The Commission 
respectfully asks that Congress fully support the Commission's fiscal 
year 2009 appropriation request of $16,257,000 so that it can continue 
its statutory role as a leader in Federal sentencing policy.

    Senator Durbin. Mr. Duff, do you have a statement that you 
would like to add to the record?
STATEMENT OF JAMES C. DUFF, DIRECTOR, ADMINISTRATIVE 
            OFFICE OF THE U.S. COURTS
    Mr. Duff. Yes, Mr. Chairman. Thank you very much for 
inviting us to be here today. I am very pleased to present the 
budget request for the Administrative Office of the United 
States Courts (AO). I will make some brief remarks and ask that 
my written testimony be included in the record.
    Senator Durbin. Without objection.
    Mr. Duff. Thank you.
    I join Judge Gibbons in thanking you for the additional 
funding provided the judiciary in the 2008 appropriations bill 
during such a tight funding environment. We sincerely 
appreciate your recognizing the impact enhanced border 
enforcement will have on the judiciary by providing emergency 
appropriations to address the additional workload. This funding 
will provide some staffing increases for courts whose workload 
is heavily impacted by immigration and other law enforcement 
initiatives.
    This is my second appearance before the subcommittee. I 
have now had the opportunity to work with this subcommittee and 
its staff through one full appropriations cycle and have 
appreciated being able to work closely with you as our 
requirements changed and your allocation was reduced during 
conference. I want to take particular note, Chairman Durbin, of 
the good working relationship that we have with the 
subcommittee and its staff. Just this week, for example, in our 
executive committee meeting at the Judicial Conference, we 
singled out our relationship with the subcommittee as an 
example of how we should interact with Congress. It is 
exemplary, and we very much appreciate the dialogue and the 
subcommittee's openness and willingness to talk with us. We 
hope to emulate it across the board in all of our dealings with 
Congress. It is something we are proud of and very much 
appreciate.

                   ROLE OF THE ADMINISTRATIVE OFFICE

    I will talk very briefly on a couple of items here. First, 
by way of background--and you may be familiar with this, but 
just briefly for the record--the AO was created by Congress in 
1939 to assist Federal courts in fulfilling the mission to 
provide equal justice under the law. It is a unique entity in 
Government. It does not operate as the headquarters for the 
courts. Court operations, as you know, are decentralized, 
although the AO provides administrative, legal, financial, 
management, program, security, information technology, and 
other support services to all the Federal courts.
    The AO also provides support staff and staff counsel to the 
Judicial Conference of the United States and its 25 committees 
and it helps implement Judicial Conference policies, as well as 
applicable Federal statutes and regulations. The AO has evolved 
over the years to meet the changing needs of the judicial 
branch. Service to the courts, however, will always remain our 
core function and mission.

                  REVIEW OF THE ADMINISTRATIVE OFFICE

    Last year I reported to you that I was assembling a small 
advisory group of judges and court executives to assist me and 
our new Deputy Director, Jill Sayenga, in a review of the 
organization and mission of the AO. The ad hoc advisory group 
confirmed that the AO is an organization of dedicated service-
oriented professionals, but it also identified some areas where 
the AO's performance or ways of conducting business could be 
improved. Teams of AO managers have been assembled to plan and 
implement the recommendations.
    My goal is to ensure that the AO is the best and most 
efficient service organization in the Government. In supporting 
the courts, the AO frequently finds itself responding to new 
developments, such as the Booker and Fanfan Supreme Court 
decisions, or implementing the new bankruptcy legislation. And 
to do so, we work with court leaders to develop plans and 
processes for the judiciary to respond to new challenges.

              CURRENT ISSUES AT THE ADMINISTRATIVE OFFICE

    Two developments on which we are currently responding are 
the impact of enhanced immigration enforcement on the courts, 
and implementation of the pilot program that you authorized 
last year under which the U.S. Marshals Service assumes 
responsibility from the Federal Protective Service for 
perimeter security at several designated courthouses.
    I will mention very briefly two other items.
    Last year I spoke about the efforts to improve our working 
relationship with GSA. I reported that substantial progress was 
being made and that we were working on significant changes in 
how GSA determines or calculates courthouse rents. Today, I am 
very pleased to report that we have successfully concluded the 
effort on determining how GSA calculates rent.
    On February 19, I signed a memorandum of agreement, which 
was cosigned by GSA's Public Buildings Service Commissioner, 
that changes the way rent will be calculated for all federally 
owned courthouses to be delivered in the future, and it also 
applies to 32 of our existing courthouses. Both the judiciary 
and GSA will benefit from knowing with certainty how much rent 
the judiciary has to pay and how much rent GSA will receive. 
Judiciary and GSA staff time and resources for contractor 
support to conduct and validate market appraisals will no 
longer be used.
    Next, I would also like respectfully to request that you 
consider providing assistance in solving our two major 
courthouse construction problems in San Diego and Los Angeles 
where market conditions and delays have increased the cost of 
these projects.

                    FISCAL YEAR 2009 BUDGET REQUEST

    And last, I would note that the fiscal year 2009 
appropriations request for the Administrative Office of the 
U.S. Courts is $82 million. This is an increase of $5.9 
million, or 7.8 percent. Although the increase we are seeking 
may appear significant, overall it represents a no-growth, 
current-services budget. The requested increase is exclusively 
to cover base adjustments to maintain current services. We are 
requesting no program increases.

                           PREPARED STATEMENT

    Chairman Durbin, I recognize that fiscal year 2009 will be 
another difficult year for you and your colleagues as you 
struggle to meet funding needs of the agencies and programs 
under your review. I look forward to working with you and your 
staff on meeting the needs of the Judiciary.
    Senator Durbin. Thanks, Mr. Duff.
    Mr. Duff. Thank you.
    [The statement follows:]
                  Prepared Statement of James C. Duff
                              introduction
    Chairman Durbin, Senator Brownback, and members of the 
subcommittee, I am pleased to appear before you this morning to present 
the fiscal year 2009 budget request for the Administrative Office of 
the United States Courts (AO) and to support the overall request for 
the entire Judicial Branch.
    First, I would like to join Judge Gibbons in thanking you and your 
Committee for the support you provided the Judiciary in the fiscal year 
2008 appropriations bill. In addition to the regular funding, we deeply 
appreciate your recognizing the impact enhanced border enforcement will 
have on the Judiciary by providing emergency appropriations to address 
the additional workload. In the aggregate, the funding will allow the 
Judiciary to provide some staffing increases in courts whose workload 
is heavily impacted by immigration and other law enforcement 
initiatives.
    This is my second appearance before the Financial Services and 
General Government subcommittee and I have now had the opportunity to 
work with this subcommittee and its staff through one full 
appropriations cycle. We recognize the very tight fiscal constraints in 
which you operate and appreciated being able to work closely with your 
staff throughout the process as our requirements changed and your 
allocation was reduced. I look forward to a continued productive 
relationship with your very able staff as we move through the year. I 
want to answer any questions you might have, and to describe the 
important needs of the Federal Judiciary.
                   role of the administrative office
    In July 2006, I accepted the appointment of Chief Justice Roberts 
to become only the 7th Director of the Administrative Office of the 
United States Courts in its 69-year history. Created by Congress in 
1939 to assist the Federal courts in fulfilling their mission to 
provide equal justice under law, the AO is a unique entity in 
Government. Neither the Executive Branch nor the Legislative Branch has 
any one comparable organization that provides the broad range of 
services and functions that the AO does for the Judicial Branch.
    Unlike most Executive Branch agencies in Washington, the AO does 
not operate as a headquarters for the courts. The Federal court system 
is decentralized, although the AO provides administrative, audit, human 
resources, legal, financial, management, program, security, information 
technology and other support services to all Federal courts. It 
provides support and staff counsel to the policy-making body of the 
Judiciary, the Judicial Conference of the United States, and its 25 
committees, and it helps implement Judicial Conference policies as well 
as applicable Federal statutes and regulations. The AO carries out a 
comprehensive financial audit program to ensure the Judiciary expends 
its resources properly. It also coordinates Judiciary-wide efforts to 
improve communications, information technology, program leadership, and 
administration of the courts, and is leading the effort to contain 
costs throughout the Judiciary. Our administrators, auditors, 
accountants, systems engineers, personnel specialists, analysts, 
architects, lawyers, statisticians, and other staff provide 
professional services to meet the needs of judges and staff working in 
the Federal courts nationwide. The AO staff also respond to 
Congressional inquiries, provide information on pending legislation, 
and prepare Congressionally mandated reports.
                 administrative office internal review
    Last year I reported to you that I was assembling a small advisory 
group of judges and court executives to assist me and our Deputy 
Director, Jill Sayenga, in a review of the organization and mission of 
the AO. I wanted to ensure that the structure and services provided by 
the AO are appropriate and cost-effective, and that they address the 
changing needs of the courts. We examined our core mission of service 
to the courts as defined by statute and directives from the Judicial 
Conference to determine if internal adjustments were needed to improve 
efficiency and responsiveness.
    I am pleased to tell you the ad hoc advisory group confirmed that 
the AO is an organization of dedicated, service-oriented, capable 
professionals, but it did identify some areas where the AO's 
performance or ways of conducting business could be improved. The group 
provided practical and achievable recommendations on how to improve 
both the services of the AO to, and our working relationship with, the 
courts. To that end, teams of AO managers have been assembled to plan 
and implement the recommendations. Among other things, we will be 
reviewing internal operations, the deployment of our workforce, the 
best ways to obtain court input and advice, and improvements in 
communications with the courts and in working procedures. My goal is to 
ensure that the AO is the best service organization in the Government.
    Although the internal review was undertaken primarily to determine 
how well the AO currently fulfills its responsibilities, the ad hoc 
advisory group raised questions about the agency's continuing ability 
to deliver critical services, as well as its capacity to adapt to our 
court customers' future needs. Areas of concern include future 
budgetary constraints, the anticipated retirements of highly 
experienced and knowledgeable employees in senior management and 
technical positions, growing numbers of staff vacancies in critical 
areas, AO competitiveness in the labor market, the changing nature of 
work and required competencies, and the impact of change on employee 
morale.
    After reviewing carefully our operations for the past year-and-a-
half, I am convinced that we require the current services level of 
staff and funding we request for fiscal year 2009 to provide adequate 
support to the courts. The services provided by the AO are critical to 
the effective operation of our Federal courts, and I hope you will 
continue to provide the resources we require.
                    administrative office challenges
    As I indicated when I testified last year, when I became Director 
in July 2006, I restricted recruitment actions for filling vacant 
positions to give me time to evaluate the organization, its mission, 
and priorities. Any exceptions for external recruitment were 
scrutinized carefully by an executive review committee and required my 
approval. I am pleased to report that, having completed this review, 
the hiring freeze has been partially lifted and critical vacancies are 
being filled.
    In the interim, with significant additional effort on the part of 
our existing staff, and at times with great difficulty, the AO 
continues to perform vital human resources and financial functions, 
implements the policymaking efforts of the Judicial Conference, 
monitors program performance and use of resources, develops and 
supports automated systems and technologies, collects and analyzes 
court workload statistics, coordinates construction and management of 
court facilities, defines court resource needs through caseload 
forecasts and work measurement analyses, monitors the U.S. Marshals 
Service's (USMS) implementation of the judicial facility security 
program, provides program leadership and support for court unit 
executives, develops and conducts education and training programs, and 
performs cyclical court audits and other financial and system audits to 
ensure integrity.
    In addition to striving to perform its fundamental responsibilities 
outlined above in the most efficient and effective matter, the AO must 
look beyond the immediate day-to-day needs of the courts. It is our 
responsibility to anticipate and plan for changes in workload, 
workforce demographics, legislative mandates and other areas so that we 
can serve the courts effectively in the years ahead.
                        planning for the future
    The AO frequently finds itself in uncharted waters. Whether it is 
responding to the Booker and Fanfan Supreme Court decisions or 
implementing the Bankruptcy Abuse Prevention and Consumer Protection 
Act, we are working with court leaders to develop plans and processes 
for the Judiciary to respond to new challenges. I highlight three of 
the initiatives on which we are currently working--responding to 
enhanced immigration enforcement, preparing to implement the 
retroactive application of the crack cocaine sentencing amendment, and 
implementing a pilot project you authorized last year under which the 
USMS assumes responsibility from the Federal Protective Service (FPS) 
for perimeter security at several designated courthouses. Judge 
Gibbons' testimony addresses the policy issues and impact on the 
Judiciary of these three initiatives. I would like to talk about the 
operational concerns and what the Administrative Office is doing to 
ensure the courts are prepared to support these efforts.
Enhanced Immigration Enforcement
    Increased border enforcement is a priority of this Congress and the 
administration. We are grateful for your recognition that the Judiciary 
is integral to this effort by providing significant resources to the 
courts in 2007 and 2008 for us to respond to the resulting 
apprehensions and prosecutions. In addition to having the increased 
funding you provided, the Judiciary must plan and coordinate the 
management of the new workload effectively, particularly as Operation 
Streamline is implemented in more locations along the Southwest border. 
To that end, Administrative Office staff participated in a conference 
of top law enforcement officials from Southwest border districts and 
continue to maintain contact with executive branch personnel to ensure 
we are aware of and can respond to their priorities. Further, we have 
established a task force within the AO to facilitate the Judiciary's 
response to enhanced immigration enforcement and work with the 
Southwest border courts.
    In conversations with judges, court managers, and Federal 
defenders, particularly in the Southwest border districts, but also in 
districts throughout the country, we are finding that limitations 
beyond funding can make it difficult for courts to respond to the 
increased workload. Lack of space to hold court proceedings and to 
detain those apprehended, rising caseloads of Federal defenders, 
finding enough panel attorneys willing to accept these cases at the 
current non-capital hourly rate of $100, locating sufficient numbers of 
qualified interpreters, and hiring and retaining probation and pretrial 
services officers in the difficult work environment that exists along 
the Southwest border are all challenges that the AO, in coordination 
with the courts, is trying to address. These are difficult problems 
that will require creative and innovative solutions.
    AO staff, in collaboration with court personnel, are systematically 
developing an inventory of areas where we do not have all of the 
resources to address the existing and potential new workload. Initially 
we are focusing on the Southwest border districts, but these issues are 
not necessarily limited to the Southwest border. Many districts 
throughout the country are affected by enhanced immigration efforts, 
resulting in increased numbers of legal and illegal alien defendants in 
locations such as the Middle District of North Carolina, the Western 
District of Arkansas, Nebraska, Idaho, the Northern District of 
Georgia, Oregon, Colorado, and the Southern District of Iowa. This 
leads, for example, to a need for more interpreters in some districts 
where the availability is quite limited and the demand and supply have 
not existed previously. To resolve these issues, we will have to look 
beyond the traditional ways we have addressed these needs and develop 
innovative, creative solutions.
Perimeter Security Pilot Program
    Another new endeavor for the AO is implementation of a pilot 
project whereby the USMS will assume FPS perimeter security 
responsibilities in selected court facilities. As Judge Gibbons stated 
in her testimony, we are very grateful that you have given us the 
opportunity to pursue this project and to ensure that the Judiciary has 
comprehensive and effective security in place.
    We are particularly troubled by the February 8, 2008, Government 
Accountability Office's (GAO) Preliminary Observations on the Federal 
Protective Service's Efforts to Protect Federal Property which found 
that FPS has not always maintained the security countermeasures and 
equipment it was responsible for, such as perimeter cameras, which may 
expose Federal facilities to a greater risk of crime or terrorist 
attack. This GAO report verifies the situation that Judge Gibbons 
described in testimony before this subcommittee last spring regarding 
perimeter security equipment for which FPS was responsible, but which 
was not maintained, fixed or replaced, despite FPS being paid by the 
Judiciary for that service. Please be assured that courthouses do not 
have these problems because of the security provided the Judiciary by 
the USMS. It is specifically for the reasons identified in the GAO 
report, however, as well as the need to have one entity responsible for 
security, that we raised concerns about FPS perimeter security last 
year. We are grateful that you responded by authorizing the pilot 
project. The test-site courts will be provided with a consistent level 
of perimeter security as is the case in the interior of courthouses, 
and will allow those courts to rely on the Marshals Service as its 
single provider of security services, rather than FPS.
    I would point out that GAO identified funding shortfalls as a 
primary cause of the FPS security deficiencies. This concerns us 
because, as you know, FPS is funded fully from the fees it charges 
other Government agencies for its security services. While we have 
suggested on several occasions that FPS receive a direct appropriation 
at a funding level Congress deems appropriate to secure Federal 
buildings, this proposal has not been pursued. Consequently, under the 
current funding scheme, any budgetary shortfall is borne by all Federal 
agencies in the form of increased fees, thus increasing the Judiciary's 
funding requirements, as well as those of the Executive Branch agencies 
under your jurisdiction.
    With regard to the pilot project, I assure you that AO staff are 
involved in every aspect of implementation and will be monitoring the 
project carefully. We have been on site at every pilot location to 
assess the level of security provided by FPS and to participate in 
determining the appropriate level of security to be provided by USMS. 
We are cognizant of the need to control costs during this pilot and for 
the future if it is determined that nationwide implementation is 
appropriate.
Crack Cocaine Sentencing Retroactivity
    The last new area I would like to address is implementation of the 
retroactive application of the Federal sentencing guidelines amendment 
for crack cocaine offenses. This effort is similar to our response to 
enhanced immigration enforcement in that it involves many components of 
the Judiciary as well as Executive Branch entities, as Judge Gibbons 
mentioned in her testimony. The AO's role in this endeavor began in 
November, when we hosted a contingency planning meeting prior to the 
decision of the Sentencing Commission to apply the amendment 
retroactively. We invited chief probation officers from the districts 
with the largest number of crack cocaine cases to meet at the AO, and 
we invited officials of the Sentencing Commission, the Department of 
Justice, and the Bureau of Prisons to join us. The discussion centered 
around identifying offenders in prison who may be eligible for 
immediate release, and planning for the successful reentry into the 
community of those qualified for release. At the planning meeting, two 
chief probation officers volunteered to host large conferences in 
Charlotte, North Carolina, and St. Louis, Missouri, that would gather 
judges, probation officers, prosecutors, and Federal defenders from 
districts with a significant number of crack cocaine cases, and provide 
a forum to develop practical plans for dealing with the workload at the 
district level. The 2-day conferences included presentations by the 
Sentencing Commission, the Bureau of Prisons, the USMS, and also panel 
discussions with judges, prosecutors, and defenders. There was 
widespread agreement at the conferences that the courts involved are 
capable of meeting the challenges posed by the additional workload. To 
ensure that the valuable information discussed during these conferences 
was available to all judges and court staff, AO staff recorded the 
sessions and posted the video on the Judiciary's intranet site.
    In addition to the conferences, AO staff have worked to make 
implementation of the amendment easier for all of the courts. In 
coordination with the Sentencing Commission and the Judicial 
Conference's Committee on Criminal Law, AO staff developed a model 
order that can be used by the courts when resentencing inmates. This 
one-page form captures all of the information needed by the Commission 
and the Bureau of Prisons, and will allow judges and court staff to 
process the orders quickly. Also, databases used in the clerks offices, 
probation and pretrial services offices, and Federal public defenders 
offices to capture statistics and workload data related to crack 
cocaine resentencings have been updated. Additionally, AO staff have 
disseminated important information about Bureau of Prisons procedures 
to the courts. I am pleased to report that all of these efforts were in 
place prior to the March 3, 2008, effective date.
          partnership with the general services administration
    Last year when I testified before you I talked about my efforts to 
improve our working relationship with the General Services 
Administration (GSA). At that time I reported that substantial progress 
was being made and that we were working on significant changes in how 
GSA determines or calculates courthouse rents. Today, I am pleased to 
report that we have successfully concluded that effort. On February 19, 
2008, I signed a Memorandum of Agreement (MOA), co-signed by the GSA 
Public Buildings Service Commissioner, that changes the way rent will 
be calculated for all federally owned courthouses to be delivered in 
the future. This new methodology will also be applied to a limited 
number of courthouses that the Judiciary already occupies.
    The conventional approach that had been used to determine rent for 
most of our buildings, as well as those building occupied by other 
Federal tenants of GSA space, is based on appraisals of commercial 
space in the same rental market as the federally-owned building. Every 
5 years a new appraisal of the market was done and rental rates paid to 
GSA were adjusted accordingly. I would note that using this former 
``fair market value'' method, in fiscal year 2009, the rent for the 
Court of International Trade, a GSA-owned building in Manhattan that is 
over 40 years old, will increase by $1.5 million or 30 percent, based 
on the 5-year cyclical reappraisal done by GSA.
    The MOA outlines a new process for determining rental rates based 
on a return on investment (ROI) methodology. Under the MOA, the rent 
will be fixed for the first 20 years of occupancy and will be set to 
return to GSA approximately 7 percent per year of its capital costs; 
operating costs will be adjusted annually to reflect GSA's actual 
operating expenses.
    We are pleased that this MOA has been signed for several reasons. 
First and foremost, it ushers in a new era of collaboration and 
cooperation between the Judiciary and GSA and demonstrates that by 
working together, we can resolve problems in a way that is mutually 
beneficial to both parties. Second, it provides the Judiciary with 
certainty about the amount of rent it will pay for a 20-year time 
period, rather than being subject to changes every 5 years as a result 
of changing commercial market conditions. Third, the amount of rent 
will be based directly on the capital resources the Judiciary consumes, 
i.e., how much it costs to construct the building, rather than on 
periodic assessments of market rents in nearby commercial office 
buildings. Finally, with GSA agreeing to an ``open-book'' accounting of 
costs, the Judiciary will not have to hire consultants and expend 
considerable staff time reviewing appraisals based on subjective 
opinions of market value.
    I have just outlined the many benefits that the Judiciary will 
enjoy under this MOA. Because this subcommittee also has jurisdiction 
over the General Services Administration, I assure you that GSA will 
also benefit from the provisions of the MOA. Specifically, GSA will 
have a guaranteed return on investment at a set rate with no market 
risk or vacancy risk. As mentioned above, under appraisal pricing, 
every 5 years the rate is reset. These reappraisals result in rent 
decreases as well as increases, so should market conditions be lower 
than the previous appraisal, GSA would get less rent. Also, under the 
MOA, the Judiciary is assuming the vacancy risk in the ROI buildings. 
That is, the Judiciary will pay the same rent over the 20-year time 
period even if space becomes vacant in the building. Consequently, GSA 
will not lose rental income until such time that it could backfill the 
space with another tenant. Finally, GSA will no longer have to respond 
to challenges to the fairness and validity of the rent determination 
process, which has led to criticism, tension, and unexpected reductions 
in the Federal Buildings Fund when GSA refunded overcharges to the 
Judiciary.
                        courthouse construction
    I next will discuss another facility-related issue--the status of 
our courthouse construction needs. We appreciated your willingness to 
fund new courthouse construction projects requested by the Judicial 
Conference in fiscal year 2008 even though the administration did not 
include them in the President's budget. We find ourselves in a similar 
situation this year with the President's budget only requesting the 
additional funds needed for the San Diego courthouse. Despite 
reductions in the scope of the San Diego project, costs have increased 
significantly over the original GSA projections because of changing 
market conditions and the construction boom in California. The project 
has been delayed several years and is critically needed in this 
California Southwest border district because the existing courthouse is 
out of space.
    As you know, we have another courthouse problem in Los Angeles. 
California (Central) is the largest district in the country and current 
facilities are seriously inadequate. Because of market conditions and 
delays, the cost of the Los Angeles project far exceeds GSA's original 
estimates. Despite the sizable reductions in scope made by the court, 
the cost of this project continues to grow and will only get more 
expensive as time passes. The AO, the court, and GSA have been working 
together to find a solution. While we recognize how costly this project 
is, especially in a time of constrained resources for non-security 
discretionary programs, we believe the final project design must 
address long-term needs and provide an environment in which the 
judicial process can function safely and effectively. We also want to 
ensure that when alternatives are considered, all costs associated with 
the options are included in the analysis. Consequently, we are pleased 
that GAO has been asked to conduct a review of this project and trust 
that it will address all aspects of the issue. We also look forward to 
collaborating with GSA on the report this subcommittee asked it to 
provide and trust that our views will be reflected fully. I have stated 
on numerous occasions that the situation in Los Angeles is an 
extraordinary problem that may ultimately warrant an extraordinary 
solution.
    Finally, we respectfully request that you consider the new 
courthouse construction projects included on the Judicial Conference 
approved Five-Year Courthouse Project Plan for fiscal years 2009-2013, 
a copy of which is attached to this Statement. As I mentioned, none of 
these projects is included in the President's 2009 budget request, yet 
they have been on the Five Year Plan for a number of years. Most of the 
projects have sites, have been or soon will be designed, and are 
awaiting construction funding. Every year a project is not funded its 
cost increases by about 10 percent based solely on inflation. We 
appreciate your consideration of these needs.
         administrative office fiscal year 2009 budget request
    Last I will address the fiscal year 2009 appropriations request for 
the Administrative Office of the United States Courts which is 
$81,959,000. This represents an increase of $5,923,000, or 7.8 percent, 
over fiscal year 2008 enacted appropriations. Although the percentage 
increase in appropriations we are seeking may appear significant, 
overall it represents a no-growth, current services budget request. I 
note this request funds 6 percent fewer staff than were funded in 1995 
even though court staffing has increased almost 14 percent over the 
same time period.
    The AO's appropriation comprises less than 2 percent of the 
Judiciary's total budget, yet the work performed by the AO is critical 
to the effective operation of the U.S. Courts. In addition to the 
appropriation provided by this Committee, as approved by the Judicial 
Conference and the Congress, the AO receives non-appropriated funds 
from sources such as fee collections and carryover balances to offset 
appropriation requirements. The AO also receives reimbursements from 
other Judiciary accounts for information technology development and 
support services that are in direct support of the courts, the court 
security programs, and defender services.
    The requested increase of $5.9 million is exclusively to cover base 
adjustments to maintain current services; the AO requests no program 
increases. Over half of the increase is to fund the proposed fiscal 
year 2009 pay adjustment and to annualize the fiscal year 2008 pay 
adjustment. The balance is for inflationary adjustments and to replace 
non-appropriated funds (carryover) that were used to finance the fiscal 
year 2008 financial plan, but which at this time are expected to 
decline in fiscal year 2009. If carryover is not replaced with direct 
appropriated funds, we would be forced to reduce current on-board 
staffing. This would, in turn, adversely affect our ability to carry 
out the AO's statutory responsibilities and serve the courts. We will 
keep you apprised of actual carryover estimates as the year progresses. 
Should carryover surpass our estimates, the amount of appropriations we 
are requesting could be reduced.
                               conclusion
    Chairman Durbin, Senator Brownback, members of the subcommittee, I 
have shared with you only a few examples of the diverse issues we 
handle and the type of services and support the Administrative Office 
provides the Federal Judiciary. In addition to our service to the 
courts, the AO works closely with the Congress, in particular, the 
Appropriations Committee and its staff, to provide accurate and 
responsive information about the Federal Judiciary. I recognize that 
fiscal year 2009 will be another difficult year for you and your 
colleagues as you struggle to meet the funding needs of the agencies 
and programs under your purview. I urge you, however, to consider the 
significant role the AO plays in supporting the courts and the mission 
of the Judiciary. Our budget request is one that does not seek new 
resources for additional staff or programs. I hope you will support it.
    Thank you again for the opportunity to be here today. I would be 
pleased to answer your questions.

                               Attachment

   FIVE-YEAR COURTHOUSE PROJECT PLAN FOR FISCAL YEARS 2009-2013 AS APPROVED BY THE JUDICIAL CONFERENCE OF THE
                                         UNITED STATES ON MARCH 11, 2008
                                         [Estimated dollars in millions]
----------------------------------------------------------------------------------------------------------------
                                                                                                      Estimated
                                                                               Cost        Score      net annual
                                                                                                         rent
----------------------------------------------------------------------------------------------------------------
Fiscal year 2009:
    Austin, TX..........................  Add'l S&D/C....................       $114.0         82.0         $6.5
    Salt Lake City, UT..................  C..............................        168.5         67.9         11.4
    Savannah GA.........................  Add'l. D.......................          2.0         61.3          3.5
    San Antonio, TX.....................  S..............................         18.0         61.3          9.2
    Mobile, AL..........................  Add'l. S /C....................        181.5         59.8          4.7
                                                                          --------------------------------------
      TOTAL.............................  ...............................        484.0  ...........         35.4
                                                                          ======================================
Fiscal year 2010:
    Nashville, TN.......................  Add'l D/C......................        164.6         67.3          7.0
    Cedar Rapids, IA....................  Add'l D/C......................        136.8         61.9          6.1
    Savannah GA.........................  C..............................         52.4         61.3          3.5
    San Jose, CA........................  Add'l S........................         32.0         54.5          9.4
    Greenbelt, MD.......................  S&D............................         10.5         53.8          1.6
                                                                          --------------------------------------
      TOTAL.............................  ...............................        396.3  ...........         27.5
                                                                          ======================================
Fiscal year 2011:
    San Antonio, TX.....................  C..............................        160.8         61.3          9.2
    Charlotte, NC.......................  C..............................        106.1         58.5          7.1
    Greenville, SC......................  C..............................         66.4         58.1          4.1
    Harrisburg, PA......................  C..............................         48.1         56.8          5.4
    San Jose, CA........................  D..............................         14.4         54.5          9.4
                                                                          --------------------------------------
      TOTAL.............................  ...............................        395.8  ...........         35.2
                                                                          ======================================
Fiscal year 2012:
    Norfolk, VA.........................  C..............................         87.8         57.4          5.1
    Anniston, AL........................  C..............................         17.1         57.1          1.1
    Toledo, OH..........................  C..............................         91.8         54.4          5.9
    Greenbelt, MD.......................  C..............................         59.0         53.8          1.6
                                                                          --------------------------------------
      TOTAL.............................  ...............................        255.7  ...........         13.8
                                                                          ======================================
Fiscal year 2013: San Jose, CA..........  C..............................        188.0         54.5          9.4
                                                                          --------------------------------------
      TOTAL.............................  ...............................        188.0  ...........          9.4
----------------------------------------------------------------------------------------------------------------
 S = Site; D = Design; C = Construction; Add'l. = Additional.
 In fiscal year 2004, GSA requested only design funds for San Antonio, TX, which was planned to be built on a
  federally owned site. GSA advises that a privately owned site will be needed, which, therefore, requires
  funding to acquire a site.
 All cost estimates subject to final verification with GSA.

              FEDERAL PROTECTIVE SERVICE AND PILOT PROJECT

    Senator Durbin. Let me go to some questions here, if I can.
    Judge Gibbons, last year when there was testimony about the 
adequacy or inadequacy of the Federal Protective Service, we 
did have a meeting and discussed options, and one of those was 
to extend perimeter security responsibility to the U.S. 
Marshals in seven different instances of primary courthouses. 
In your testimony, you indicated the pilot will begin in the 
fourth quarter of 2008 and will be in effect for 18 months.
    I have a couple questions for you. Why did it take so long? 
Why could it not begin earlier? And second, has the performance 
of the Federal Protective Service in other places--these in 
particular and other places as well--improved during the past 
year?
    Judge Gibbons. To answer the second part of it first, we 
are not aware of any improvements. In fact, you may be aware 
that there was a Government Accountability Office (GAO) report 
that addressed perimeter security at Federal buildings 
generally, not court facilities in particular, and its findings 
seemed similar to our observations, although the judiciary was 
not specifically mentioned or consulted in the course of the 
report.
    Why did it take so long? I am not sure I can answer that 
directly other than in Government, these things take a while. 
What has to happen in each particular facility is an assessment 
of the needs, acquisition of the necessary equipment, and the 
hiring of the necessary personnel. These, of course, are court 
security officers who would not be already on board, and they 
must have the background checks, all the vetting that 
accompanies law enforcement or security-type employees. That is 
my supposition.
    [The statement follows:]

    While the Senate's version of the Judiciary's fiscal year 
2008 appropriations bill included a provision establishing the 
pilot project, the House version of the bill did not include 
such a provision. The pilot project provision was included in 
the final conference agreement on the omnibus appropriations 
bill which was enacted into law on December 26, 2007. The 
Judiciary and the U.S. Marshals Service (USMS) took preliminary 
steps regarding the pilot project prior to and after the Senate 
Appropriations Committee reported its bill with the provision 
in July 2007, but enactment of the 2008 omnibus bill was needed 
in order to take definitive steps to implement the pilot 
project.
    The current plan is to initiate contracting actions for 
both security systems and court security officers at all sites 
during fiscal year 2008. Due to contractual timelines, however, 
most sites will probably not be fully transitioned and ready 
for implementation until the first quarter of fiscal year 2009. 
A pilot site will only be implemented when it can be 
accomplished in a manner that is satisfactory to the local 
court, the USMS, and the Committee on Judicial Security. The 
actual implementation at each site will also need to take into 
consideration the length of time necessary for the USMS to: 
medically screen court security officer applicants; conduct 
background investigations; provide the necessary notification 
to the security companies that provide the FPS contract guards 
to stop service; and to assume control of the FPS security 
systems and equipment, which can vary by location.
    The Moynihan Courthouse pilot was implemented in March 2008 
although that site, unlike the other six sites, only involved 
bringing FPS equipment under USMS control. For the six 
remaining sites, in addition to bringing FPS equipment under 
USMS control, each will also require the hiring of additional 
court security officers which can take several months to 
accomplish. Of these six sites, the Dirksen Courthouse will be 
the next brought online. The USMS and the Committee on Judicial 
Security will conduct formal evaluations periodically 
throughout the pilot period to assess whether the program's 
goals are being met and to identify areas for improvement. 
Congress will be kept apprised of the program's status. The 
seven sites selected for the pilot and their planned 
implementation date are detailed in the table below.

------------------------------------------------------------------------
              Pilot Site                   Planned Implementation Date
------------------------------------------------------------------------
Daniel Patrick Moynihan U.S.            Implemented March 2008
 Courthouse, New York, NY.
Everett McKinley Dirksen U.S.           September/October 2008
 Courthouse, Chicago, IL.
Sandra Day O'Connor U.S. Courthouse,    October/November 2008
 Phoenix, AZ.
Evo A. DeConcini U.S. Courthouse,       October/November 2008
 Tucson, AZ.
Russell B. Long Federal Building/U.S.   October/November 2008
 Courthouse, Baton Rouge, LA.
Old Federal Building and Courthouse,    October/November 2008
 Baton Rouge, LA
Theodore Levin U.S. Courthouse,         November/December 2008
 Detroit, MI.
------------------------------------------------------------------------

                             COURT SECURITY

    Senator Durbin. Let us go to the issue of the adequacy of 
the Marshals Service in gauging threat assessments against 
Federal judges and courthouses. The Justice Department's 
inspector general came up with a list of six recommendations to 
improve the protection of the judiciary. Five I understand were 
implemented. One that was not related to whether or not the 
Marshals Service should be notified, in addition to local law 
enforcement authority, of any alarm events at the home of a 
Federal judge. This is, of course, of special interest to us in 
Chicago because of the tragedy involving Judge Joan Lefkow's 
family not that long ago.
    Does the judiciary have an opinion about whether dual 
notification of both law enforcement and the Marshals Service 
is necessary when a home alarm goes off?
    Judge Gibbons. I am not aware of whether we have taken a 
formal position about that. Perhaps Director Duff knows. But I 
am aware, at least in the district court where I formerly 
served in Memphis and where I am still in the same building, 
that in that particular district, the marshals are notified 
because I am aware of an incident that occurred last week in a 
district judge's home.
    Senator Durbin. If you could find out whether any formal 
position has been taken and let us know, we would appreciate 
it.
    Judge Gibbons. We will certainly supplement the record.
    Senator Durbin. And what is the general reaction of the 
judiciary to this home protection system that we have underway?
    Judge Gibbons. We are very grateful for it.
    Senator Durbin. Well, that is good to hear.
    [The information follows:]

    The Judicial Conference's Committee on Judicial Security 
has discussed the recommendation in the Department of Justice 
Inspector General's report concerning the response to home 
intrusion detection system alarm events at judges' residences. 
The Committee concluded that, in general, local law enforcement 
personnel are best suited to respond to an alarm; however, the 
Committee also supports appropriate coordination with the U.S. 
Marshals Service of instances that warrant further 
investigation.

                        COURTHOUSE CONSTRUCTION

    Senator Durbin. Now let us talk about courthouse 
construction. The fiscal year 2009 budget from the President 
provides funding for only one courthouse, the courthouse annex 
in San Diego. In fiscal year 2005, 4 years ago, San Diego was 
one of four emergency projects on the judiciary's revised 5-
year courthouse project plan. Due to increased construction 
materials costs, the scope of the project was reduced, but the 
project still requires $110 million as requested by the 
President in fiscal year 2009 in order to be completed.
    Why do emergency projects such as this not appear on the 
judiciary's updated 5-year plan?
    Mr. Duff. If I might answer that one, Mr. Chairman. It is 
because they require additional funding that needs to be sought 
by GSA. Our 5-year plan identifies the top priorities each year 
for new courthouse construction funding. What happened with 
regard to San Diego, as well as Los Angeles, is they 
encountered difficulties hiring construction companies within 
the funding that was provided to build the courthouse. The 
delays in construction have caused the cost to escalate 
enormously, particularly in California. And it then becomes 
GSA's responsibility to seek that additional funding, and while 
we fully support the additional funding for the new courthouses 
in San Diego and Los Angeles, they do not go back on our 5-year 
plan list. As I said, the GSA is responsible for seeking the 
additional funding for those courthouses.

                             SENIOR JUDGES

    Senator Durbin. I want to ask a question for the record on 
the budgetary impact of judges seeking senior status. I 
understand that when judges become eligible, they decrease 
their workload by 50 percent and relocate to other office 
space, freeing up their former space and staff for existing 
full-time judges. The senior judge is entitled to new staff, 
three law clerks and one administrative staffer. So all this 
results in requiring more resources.
    How many judges are currently eligible for senior status?
    Judge Gibbons. I am not sure about that, and perhaps 
Director Duff can answer that.
    But I do want to comment on an assumption that the question 
makes. Senior judges may take a 50 percent caseload. They may 
take a full caseload and some do. They may take variations on 
those two. Their space may become available. If they are taking 
a full caseload, the space likely does not become available, 
particularly if they are an appellate judge. Their need for 
staff and their need for space are assessed in most circuits 
according to the caseload they happen to be taking. So it is 
not really just a one-profile situation. There are many, many 
variations on both the caseload they take, the staff they have, 
and the space they occupy.
    Senator Durbin. Mr. Duff, do you know?
    Mr. Duff. I do. As of December 31, 2007, there were 473 
Article III senior judges, and 92 active judges were eligible 
to take senior status. An additional 48 currently active judges 
have senior status eligibility dates between January 1, 2008, 
and December 31, 2008. Whether those 48 will choose to take 
senior status, of course, remains to be seen.
    Senator Durbin. But it sounds, in most instances, that 
choosing senior status will require more resources.
    Mr. Duff. Yes, in the sense that when a judge takes senior 
status, a new judge may be appointed, and so that does require 
additional resources.
    Judge Gibbons. But that is really too simplistic because if 
they are continuing to do work, that alleviates our need for 
new judgeships which come with accompanying space and staff 
needs. I believe about 17 percent of the overall work of the 
Federal judiciary is performed by senior judges.
    Mr. Duff. Yes. That is an important figure. Without our 
senior judges, we would be overwhelmed with work.
    [The information follows:]

    While there are staff and space costs associated with a 
judge taking senior status, it is important to emphasize that 
senior judges are essentially volunteering their time in 
continued service to the federal judiciary. A judge eligible 
for senior status could otherwise choose to retire and leave 
office at the same pay without rendering any judicial service 
at all. But over 400 appellate and district court judges forego 
full retirement, and instead take senior status and continue 
taking cases. They are essential to the work of the federal 
courts. In 2007, senior judges participated in 19 percent of 
cases terminated on the merits in the appellate courts. In the 
district courts, senior judges handled 18 percent of the civil 
and criminal caseload. Both of these statistics are at the 
highest level in a decade.
    The number of senior judges working in the courts does 
impact the number of new judgeships the Judicial Conference 
requests from Congress. If the Judiciary were to see a sharp 
dropoff in the number of senior judges working in the courts, 
it would likely result in more judgeships being requested from 
Congress in order to make up for the lost productivity 
resulting from fewer senior judges.

               COURTS OF APPEALS FOR THE FEDERAL CIRCUIT

    Senator Durbin. The Federal Circuit is requesting an almost 
20 percent, or $5.3 million, increase in the budget for next 
fiscal year. The largest part of this, $2.5 million, appears to 
be for staffing and leased office space and build-out for 
senior judges.
    What is the space situation at the Federal Circuit and what 
is the status of judges going to senior status? Is that 
included in the original number that you gave me?
    Judge Gibbons. Well, actually as you know or may know, the 
Federal Circuit has the statutory authority to submit its own 
budget directly to Congress, and its budget does not go through 
the process of approval by the Judicial Conference, nor is it 
subject to the oversight of the Budget Committee. We do ask for 
its submission, along with our own. But I would prefer to let 
that court respond to its own budget submission.
    Senator Durbin. I see. So you do not talk to those people.
    Judge Gibbons. We do talk to them. I just think it 
appropriate that they be their own advocates.
    [The information follows:]

    The United States Court of Appeals for the Federal Circuit 
has requested in fiscal year 2009 an adjustment to the base 
appropriation to lease chambers workspace outside the 
courthouse for senior judges for whom there is no remaining 
space in the courthouse.
    This increase for leased space, in the amount of $298,000, 
will help enable the Court to provide the workspace necessary 
for up to five additional senior judges for whom there is no 
remaining space in our courthouse. Four Federal Circuit judges 
are eligible to take senior status now, three more will become 
eligible in fiscal year 2009, and another judge will become 
eligible in fiscal year 2010.
    In addition, the Federal Circuit has also requested 
$1,860,000 to build out leased chambers for five of the seven 
judges who either are now or will be eligible to take senior 
status in fiscal year 2009 (plus an eighth judge eligible and 
expected to take senior status in fiscal year 2010) and for 
whom there is no room in the existing courthouse. This amount 
is based on an estimate coordinated with the Administrative 
Office of the United States Courts and on personal experience 
with GSA in renovating chambers in this courthouse. This amount 
will provide the leased chambers with the furniture, 
furnishings and finishes consistent with the U.S. Courts Design 
Guide.
    In fiscal year 2009 the Federal Circuit will have seven 
judges who are or will be eligible to take senior status. 
Currently, the Federal Circuit has no additional space 
available in the National Courts Building for senior judge 
chambers, and has no off-site leased space for senior judge 
chambers. If any of the seven judges who are or will be 
eligible to take senior status in fiscal year 2009 do so, there 
will be no available chambers for them in the National Courts 
Building or in off-site leased space once a replacement judge 
is confirmed. At least two of the seven judges who will be 
eligible for senior status are expected to take senior status 
when they become eligible in fiscal year 2009. It is imperative 
that the Federal Circuit acquire off-site leased chambers for 
the two judges who have indicated a desire to take senior 
status in fiscal year 2009.
    By fiscal year 2010, eight of the twelve active judges on 
the Federal Circuit will be eligible to take senior status. If 
the Federal Circuit acquires off-site chambers for senior 
judges one chambers at a time, only after the President has 
been notified a judge is taking senior status, the Federal 
Circuit could have senior judges occupying off-site leased 
space in eight different locations around Washington, DC, 
perhaps far from the courthouse. Accordingly, the Court is 
working with the General Services Administration and the 
Administrative Office of the U.S. Courts to identify and lease 
nearby space off-site this year (fiscal year 2008) to 
accommodate up to five senior judges. Five is a mid-range 
number the Court believes to be reasonable in providing space 
for fewer than all prospective senior judges but more than none 
or one. The number will allow for changes in decision by judges 
based on health or other personal issues without over-reaching 
by seeking off-site space for every eligible judge who may or 
may not choose to take senior status. Five will allow for 
economies of scale in long-term leasing and building out 
prospective chambers while reducing the risk of leaving space 
unoccupied.

                  SUPREME COURT MODERNIZATION PROJECT

    Senator Durbin. The care of the buildings and grounds 
fiscal year 2009 appropriation request totals $18.4 million, an 
increase of $6.2 million over the 2008 appropriation level. 
Modernization of the Supreme Court construction project began 
in 2004 and expected completion is the fall of this year, a 
total cost of $122.3 million.
    Can you tell me in the most general terms--I do not want 
you to talk about security, obviously--what was achieved with 
the expenditure?
    Mr. Duff. Mr. Chairman, that was the Supreme Court?
    Senator Durbin. Yes.
    Mr. Duff. They submit their own budget request, and as I 
understand it, they have a hearing tomorrow, at least over on 
the House side. I am sure they will be pleased to respond 
directly to the question. We can submit it to them for their 
response. But their budget request is separate from the Federal 
courts generally.
    [The information follows:]

    In 2004, the Architect of the Capitol commenced a major 
project to provide the first significant renovation of the 
Supreme Court building since it was constructed in 1935.
    Phase I of the project--the construction of the underground 
police annex, the Architect of the Capitol (AOC) shop and 
parking areas--was completed in late 2005. Phase II of the 
project--the interior building modernization--is ongoing and 
includes updated life safety systems, windows, mechanical, 
electrical, and plumbing systems. The work on one of the four 
building quadrants is complete. The second quadrant is 
scheduled for completion during the summer of 2008.
    The contractor's projected completion date for the entire 
modernization project is September 2009. The Court and the AOC 
project team believe, however, that this estimate is overly 
optimistic and that the project will be completed in the summer 
of 2010. Although the building modernization project is more 
than a year behind, the project continues to be within budget.
    The fiscal year 2009 appropriation request of $18.4 million 
also includes funding for two projects in addition to the 
modernization project: (1) landscape expenses, including 
repairs of driveways and walkways; and (2) the continuation of 
roof repairs. The Architect of the Capitol expects to request 
additional funds for roof repairs through fiscal year 2011.

    Senator Durbin. And before anyone is critical of this 4-
year construction timetable for the Supreme Court, let me tell 
you we are still anxiously awaiting the opening of the Capitol 
Visitor Center which, according to the most recent report, will 
be done manana.

          RETROACTIVITY OF CRACK COCAINE SENTENCING AMENDMENT

    I would like to ask about the retroactivity of crack 
cocaine sentencing. The U.S. Sentencing Commission promulgated 
sentencing guidelines that Federal trial court judges consult 
when sentencing defendants. Last year, the Commission amended 
Federal guidelines, reducing offenses under Federal sentencing 
guidelines for crack cocaine. Furthermore, the Commission 
unanimously decided to make the policy change retroactive and 
the retroactivity became effective March 3 of this year.
    Judge Gibbons, regarding the retroactivity of crack cocaine 
sentencing, is it correct that you expect not to need 
additional resources despite a surge of motions for reductions 
in sentence?
    Judge Gibbons. That is correct. There will be a lot of 
defendants processed with requests for resentencing by the 
Federal courts. And we know that obviously resources will be 
required to process those. Probably the biggest resource 
challenge will be for our probation officers who will have an 
increase in the numbers of individuals they will be supervising 
as a result of this. But we do believe that we can likely 
handle it within existing resources. If you want a more 
detailed explanation about why we think that to be so, I will 
be happy to go into it in more detail.
    Senator Durbin. I appreciate it.
    Will crime victims be notified of an inmate's release, and 
will they have an opportunity to provide comment to the court 
prior to an inmate's release?
    Judge Gibbons. I do not think that it is required in the 
same way that victim notification is required in terms of an 
initial sentencing. But if I am incorrect about that, we will 
certainly let you know.
    [The information follows:]
The Judiciary's Ability to Absorb Retroactivity Workload
    While the U.S. Sentencing Commission estimates that approximately 
19,000 inmates sentenced under the previous crack cocaine sentencing 
guidelines may be eligible for a reduced sentence as a result of 
retroactive application of the revised sentencing guidelines, it is 
important to note that these 19,000 would potentially be released over 
the course of 30 years. The Commission estimates that 3,804 of the 
19,000 offenders would be eligible for a reduced sentence and early 
release within the first year of the effective date for retroactivity 
(March 3, 2008). In year two another 2,118 would be eligible, 1,967 
more in year three, 1,773 more in year four and 1,353 more in year 
five. The remaining offenders would be eligible in year six and after. 
These filings will be handled by various district court components, 
including district judges, clerks offices, probation offices, and 
federal defender offices. The Judiciary believes retroactivity will 
have the greatest impact on its probation offices, which will supervise 
any crack cocaine offenders that may be granted early release, 
including overseeing any drug testing and treatment needs that may be 
imposed by a court as a condition of release.
    It is generally agreed that a large number of motions for a 
reduction in sentence will not involve court hearings and will be 
decided on written filings, so the courts' workload associated with 
processing those cases should not be unduly burdensome. The cases that 
require hearings will require more court resources. At present, no 
extraordinary measures have been necessary to address the increased 
workload due to retroactivity, although additional resources will be 
available if needed for smaller districts that may be 
disproportionately impacted by the number of federal offenders seeking 
a reduction in sentence based on retroactivity. Given all of these 
factors, and the staggered nature of offenders becoming eligible for a 
reduced sentence, the Judiciary believes it can absorb the additional 
workload within existing resource levels by shifting funds as necessary 
to meet workload demands, including ensuring that released offenders 
receive close supervision by a probation officer.
Victim Notification of Early Release
    Judges have been asked by the Bureau of Prisons (BOP) to delay for 
10 days the effective date of any sentence reduction that results in an 
inmate's immediate release. This delay is needed, in part, to give the 
BOP adequate time to notify victims and witnesses of the offender's 
release, as they are required to do per 18 U.S.C. Sec. 3771. The 
Judiciary is unaware if the Department of Justice will attempt to 
contact victims to seek comment prior to an inmate's release. It should 
also be noted that due to the nature of these offenses, most cases will 
not have an identifiable victim within the meaning of the Crime Victim 
Rights Act.

                     WORKLOAD IN THE FEDERAL COURTS

    Senator Durbin. Statistics indicate the caseload is 
projected to decline in some areas, criminal, appellate, civil. 
What is the impact of this on the workload in the courts?
    Judge Gibbons. Well, obviously, over time our workload has 
trended upward. We are expecting and projecting declines in a 
number of areas. Those are projections done with statistical 
models.
    Obviously, there will be impacts in all areas. We are 
expecting bankruptcy filings to continue to trend back upward. 
What happens with the economy will be a major factor likely in 
what happens with bankruptcy filings. We are expecting at least 
modest increases in supervision activity by probation and 
pretrial services officers. We are projecting modest declines 
in criminal caseload across the country, without regard to what 
may happen in border States and other areas with heavy illegal 
immigration impact, and modest declines in appellate cases, and 
a somewhat slightly steeper decline in civil filings. But what 
happens one year is not necessarily what happens the next year.
    [The information follows:]

    Although the Judiciary's workload has begun to level off, 
workload in the federal courts has increased considerably in 
nearly all workload categories when viewed over a 10 year 
perspective. As summarized in the table below, from 1997 to 
2007, criminal filings increased 37 percent, the number of 
criminal defendants grew 27 percent, offenders under 
supervision of a federal probation officer increased 27 
percent, the number of cases activated in the pretrial services 
program increased 37 percent, and appellate filings grew 13 
percent. Civil filings follow a more up-and-down filing pattern 
from year to year and grew 3 percent overall in the last 
decade. Bankruptcy filings are down nearly 566,000 filings from 
the 1997 level due in large part to the sharp decline in 
filings after the Bankruptcy Abuse Prevention and Consumer 
Protection Act took effect in October 2005.

----------------------------------------------------------------------------------------------------------------
                                                                                                       Percent
                      Workload Factor                        1997 Actual  2007 Actual   Change 2007  Change 2007
                                                                 \1\          \1\        vs. 1997      vs. 1997
----------------------------------------------------------------------------------------------------------------
Criminal Filings...........................................       49,376       67,503       18,127            37
Criminal Defendants Filed..................................       69,052       88,006       18,954            27
Probation: Persons Under Supervision.......................       91,423      115,930       24,507            27
Pretrial Services: Cases Activated.........................       69,959       95,955       25,996            37
Appellate Filings..........................................       52,271       58,809        6,538            13
Civil Filings..............................................      265,151      272,067        6,916             3
Bankruptcy Filings.........................................    1,316,999      751,056     (565,943)          -43
----------------------------------------------------------------------------------------------------------------
\1\ Data reflects the 12-month period ending June of each year.

                    PAY FOR BANKRUPTCY CASE TRUSTEES

    Senator Durbin. On the subject of bankruptcy, I am still 
baffled, troubled, and find it hard to explain that a chapter 7 
bankruptcy trustee receives $60--$60--for presiding in a no-
asset case. We recently proposed raising that to $120.
    Do you believe the bankruptcy trustees are entitled to a 
raise in compensation in no-asset cases?
    Judge Gibbons. Well, I am not sure. Can we get back to you 
on that? I have some information about it somewhere in this 
material, but you probably do not want to sit there while I try 
to locate it. And it is not coming to the top of my head 
whether we have a position about that or not.
    Senator Durbin. It is not a trick question.
    Judge Gibbons. No, I know.
    Senator Durbin. We will let you provide that later.
    [The information follows:]

    The Judicial Conference has no position on the amount of 
compensation Congress deems appropriate for chapter 7 case 
trustees. However, the Judiciary in the past has expressed its 
opposition to any case trustee compensation increase that is 
made at the Judiciary's expense. If the Judiciary were required 
to pay the case trustees an additional $60 per case and did not 
receive a specific appropriation for that purpose, it would 
cost the Judiciary $30 million which could mean the loss of 375 
FTEs.

    Senator Durbin. Unless there is anything further you would 
like to add, I want to thank you for participating in this 
hearing. I appreciate all of the work you did to prepare your 
testimony and to answer my questions. I think this forum has 
given us some further insights into judiciary operations.

                     ADDITIONAL COMMITTEE QUESTIONS

    The hearing record is going to remain open for a period of 
1 week until Wednesday, March 19 at noon for subcommittee 
members to submit statements and/or questions for the record, 
which we hope you can answer in a timely fashion.
    [The following questions were not asked at the hearing, but 
were submitted to the judiciary for response subsequent to the 
hearing:]
            Questions Submitted by Senator Richard J. Durbin
                 court security--u.s. marshals service
    Question. Your fiscal year 2009 budget request seeks 17 new U.S. 
Marshals positions (9 FTE). Why are these additional positions needed? 
Are they new positions or are they replacing vacancies?
    Answer. For fiscal year 2009, the U.S. Marshals Services (USMS) 
requests 17 new Judiciary-funded positions (9 FTE) for a total of 64 
full-time positions (56 FTE). These are new positions, not backfills. 
The Judiciary currently funds 47 full-time USMS positions to administer 
the Judicial Facility Security Program. This program includes the 
Office of Court Security, which is responsible for the daily operations 
and personnel management of the court security officer (CSO) program; 
the Office of Security Contracts, which is responsible for the daily 
contract responsibilities with the private contractors and the district 
contracting officer's technical representatives; the Office of Security 
Systems, which is responsible for all security and monitoring systems 
for judicial space; and the Office of Financial Management, which is 
responsible for the daily oversight responsibility on financial 
matters.
    A summary of the requested positions is listed below:
  --The Office of Security Systems requests funding for five additional 
        physical security specialists and one administrative assistant/
        management support specialist in order to keep up with the 
        workload that has resulted from expanding responsibilities and 
        additional oversight duties. The court security equipment 
        program has changed dramatically over the past few years, and 
        program requirements and oversight responsibilities have 
        increased significantly. This occurred as a result of the 
        growth of the court security systems program and focus on 
        improved security procedures, systems technologies and 
        maintenance. The additional personnel are required to keep pace 
        with these expanded duties.
  --The Office of Court Security requests funding for four program 
        analyst positions to manage the growing workload in medical 
        evaluations for CSOs, and the new background investigation 
        requirements for CSOs mandated by Homeland Security 
        Presidential Directive 12.
  --The Office of Security Contracts (OSC) requests funding for one 
        supervisory contract specialist and two contract specialists. 
        Over the past several years, the dollar value of contracts has 
        grown significantly, as has the number of procurement actions 
        required to support the JFSP. Staffing has not grown to match 
        the increase in workload. Currently, the OSC has two 
        supervisory contract specialists, six contract specialists, and 
        a chief. In light of workload increases, the current number of 
        contract specialists is insufficient. To provide appropriate 
        contract management, including an expanded audit capability, 
        three additional positions are required.
  --The Office of Financial Management requests funding for one 
        additional budget analyst to address the increased workload of 
        the Judicial Facility Security Program. The Office of Financial 
        Management currently has a staff of five, consisting of a 
        chief, deputy chief and three budget analysts.
  --Two new equal employment opportunity counselors are requested to 
        handle the growing number of equal employment opportunity (EEO) 
        complaints filed by CSOs. Previously, EEO counselors handing 
        CSO complaints have been funded through the USMS's Salaries and 
        Expenses account and represented a relatively small number of 
        total EEO workload. With the growth in EEO activity, this 
        request will ensure that the Judiciary's Court Security 
        appropriation properly funds the USMS's costs associated with 
        administrating the court security program.
  --The Technical Operations Group requests funding to convert a 
        contractor position to a program analyst to provide the 
        necessary financial, administrative and contractual expertise 
        to support the Courthouse/CSO Radio Program. Funding for the 
        current contractor position will be used to partially offset 
        the cost of this position. Contractors are limited in the 
        duties that they can perform so this conversion will provide an 
        employee who can perform all procurement duties.
     court security--department of justice inspector general report
    Question. Last September, the Justice Department's Inspector 
General released a report indicating a continued problem with the 
Marshals Service and their effectiveness in gauging threat assessments 
against federal judges and courthouses. The IG's report said the 
Marshals Service had a backlog of threat assessments and was slow in 
staffing a new office designed to collect and analyze information on 
potential threats.
    The IG's report made six recommendations for the Marshals Service 
to improve its protection of the Judiciary. In its response to the 
recommendations, the Marshals Service said it would follow five of 
them.
    The one item that the Marshals Service disagreed with was the 
recommendation to require that the Marshals Service, in addition to 
local law enforcement, be notified of all alarm events at the home of a 
federal judge. This is of particular interest to me because my 
colleague Senator Obama and I initiated the home alarm program for 
federal judges after the tragic killings of Judge Lefkow's husband and 
mother inside her home.
    Does the Judiciary have an opinion about whether dual 
notification--of both local law enforcement and the Marshals Service--
is necessary when a home alarm goes off?
    Answer. The Judicial Conference's Committee on Judicial Security 
has discussed the recommendation in the Department of Justice Inspector 
General's report concerning the response to home intrusion detection 
system alarm events at judges' residences. The Committee concluded 
that, in general, local law enforcement personnel are best suited to 
respond to an alarm; however, the Committee also supports appropriate 
coordination with the U.S. Marshals Service of instances that warrant 
further investigation.
    Question. Has the Marshals Service implemented the other five 
recommendations of the IG's report relating to threat assessments?
    Answer. We understand that, with the exception of one 
recommendation for the USMS to develop a formal plan that defines 
objectives, tasks, milestones, and resources for implementing a 
protective intelligence function to identify potential threats, the 
USMS has responded to the other four recommendations in the IG's report 
relating to threat assessments. Specifically, the USMS has: (1) 
developed a formal plan that defines objectives, tasks, milestones, and 
resources for the new threat assessment process; (2) created a workload 
tracking system for threat assessments; (3) modified the USMS databases 
to support the new threat assessment process and protective 
intelligence function to identify potential threats; and (4) issued 
operational guidance for requesting and deploying Technical Operations 
Group resources and Rapid Deployment Teams.
    Question. In your testimony, you indicated the Marshals Service 
established a new Threat Management Center last September which you 
said ``serves as the nerve center for responding to threats against 
judges and court personnel.''
    Do you believe this new Threat Management Center has helped the 
Marshals Service implement the recommendations made in the IG's report?
    Answer. Yes. The Threat Management Center (TMC) that is part of the 
Office of Protective Intelligence at the USMS and was opened in 
September 2007 provides a 24/7 response capability for intake and 
review of threats made against the Judiciary. A new threat analysis 
process was initiated, and weekly and monthly reports about pending 
threats against the Judiciary are now produced. A workload tracking 
system for the TMC has been developed to insure a backlog of threat 
assessment does not occur again. Additional staffing for the TMC in 
fiscal year 2007 has also enabled the USMS to dedicate more resources 
to investigating and responding to threats in a more timely manner.
    Question. In its September 2007 report, the Inspector General at 
the Justice Department indicates it conducted a survey of federal 
judges regarding implementation of the home alarm program that Senator 
Obama and I initiated. According to the IG's study, 88 percent of 
federal judges said they were ``very'' or ``somewhat'' satisfied with 
the home alarm program. About the same number of federal judges, 87 
percent, said they were ``very'' or ``somewhat'' satisfied with the 
Marshals Service performance in providing protection.
    Judge Gibbons, I realize you're the chair of the Judicial 
Conference's Budget Committee, not the Judicial Security Committee, but 
can you give us a sense of how the Marshals Service could do a better 
job with the home alarm program?
    Answer. First, I would like to thank the Subcommittee for its 
support of such an important program to protect judges and their 
families at home. The Judiciary and the USMS worked hard to make sure 
that the money Congress appropriated for this project was spent wisely, 
and that every judge who wanted a home alarm system received one. We 
have heard very few complaints associated with USMS's implementation of 
the alarm program. I would add that the USMS has been responsive to our 
needs when questions have arisen about the program.
    Question. Has every federal judge who wanted a home alarm system 
had one installed at this point?
    Answer. To the best of our knowledge, yes. As of March 11, 2008, 
1,565 judges have participated in the program and have a home alarm 
system.
    Question. Can you give us a sense of how the Marshals Service could 
do a better job with their overall mission of providing protection to 
the Judiciary?
    Answer. The biggest challenge facing the USMS is securing adequate 
resources to make sure their statutory mission to protect the federal 
Judiciary is realized. The continued budgetary constraints on the staff 
of deputy U.S. marshals (funded through the USMS's Salaries and 
Expenses account, not the Judiciary's Court Security account) for 
courthouse operations is troubling, especially in light of new 
Executive Branch initiatives such as Operation Streamline that will 
increase the volume of defendants being produced in courts along the 
southwest border.
    Question. In your testimony, you asked for an increase of $4 
million ``for necessary investments in court security, such as court 
security systems and equipment and new positions at the U.S. Marshals 
Service (9 FTE).'' Please describe in more specific detail what the $4 
million would go toward and why you think it's necessary above and 
beyond the current allocation.
    Answer. The $4 million requested for program increases will provide 
funding for 17 new U.S. Marshals Service positions as explained in the 
response to the question above ($1.1 million); one new contractor 
position at the U.S. Marshals Service ($124,000); rent reimbursement to 
the U.S. Marshals Service for Judiciary funded positions ($710,000); 
reimbursement to the U.S. Marshals Service for EEO investigations 
($123,000); and additional security systems and equipment ($2.0 
million).
    The request of $124,000 is for a contract electronics technician 
position to handle the increase in troubleshooting and repair of 
infrastructure and portable radio equipment than is currently possible 
by the sole program manager on board. Funding is essential for the 
continued success of the program with respect to the nationwide 
reprogramming and encryption goals set forth in fiscal year 2007 and 
beyond. Without funding, the USMS's efforts to encrypt all CSO radios 
nationwide will be further delayed.
    The request of $710,000 would allow the Administrative Office (AO) 
of the U.S. Courts to reimburse the USMS headquarters for the space 
occupied by Judiciary-funded USMS staff. The AO currently transfers 
funding to the USMS to fund personnel compensation and benefits and 
other costs necessary to administer the Judicial Facility Security 
Program. In the past, the transfer has not included funding for 
associated rent costs.
    The request of $123,000 is to reimburse the USMS for contractors 
hired by the USMS to investigate, process and resolve the anticipated 
increase in EEO complaints filed by CSOs. This request will ensure that 
the Judiciary's Court Security appropriation properly funds the USMS's 
costs associated with administrating the court security program.
    A $2 million increase is requested for cyclical replacement of 
access control head end computers. On August 27, 2004, President Bush 
signed Homeland Security Presidential Directive (HSPD)-12 for the 
purpose of establishing a mandatory, government-wide standard for 
security and reliable forms of identification, known as the Personal 
Identity Verification (PIV) ID Card, to be issued by Executive Branch 
agencies to its employees and contractor staff. This new initiative 
consists of upgrading and replacing access control systems nationwide 
to meet HSPD-12 compliance requirements, as well as the implementation 
of a cyclical replacement program for these systems. Finally, since 
this is going to be the standard ID card for the majority of government 
employees and long-term contractors, Judicial Branch employees and 
contractors will need the card to facilitate access to federal 
facilities.
          implementation of the court security improvement act
    Question. Less than three months ago, Congress passed and the 
President signed the Court Security Improvement Act of 2007. This is 
one of the most comprehensive court security bills ever passed by 
Congress. One of the provisions requires the Marshals Service to 
consult with the Judicial Conference on a continuing basis regarding 
court security.
    Has this provision been implemented yet? Has a consultation process 
begun between the Marshals Service and the Judicial Conference?
    Answer. Even prior to the enactment of the Court Security 
Improvement Act of 2007, the relationship between the USMS and the 
Judicial Conference had improved dramatically under the leadership of 
the current USMS Director John Clark. In addition, in October 2005 the 
Judicial Conference created a Committee on Judicial Security to focus 
solely on security issues for the Judiciary and to liaison with the 
USMS. Since that time, the USMS has attended the bi-annual meetings of 
the Committee to discuss issues of importance to the court security 
program.
    An example of the consultation process that exists between the USMS 
and the Judicial Conference is the recent pilot project that was 
approved in the fiscal year 2008 omnibus appropriations bill for the 
USMS to assume perimeter security protection from the FPS at select 
primary courthouses. The judges on the Committee on Judicial Security 
have consulted extensively with the USMS to craft a pilot program that 
is both responsive to the Judiciary's needs and reflective of budgetary 
constraints.
    Question. Have other provisions of the Court Security Improvement 
Act been implemented yet? Is everything going smoothly so far? If not, 
what are the impediments?
    Answer. Implementation of provisions that directly impact the 
Judiciary in the new law appear to be going smoothly although it 
remains to be seen whether the $20 million per year in appropriations 
through 2011--authorized in section 103 of the Act for the USMS to hire 
additional deputy marshals--will be provided. There are multiple 
provisions in the Act that do not directly affect the Judiciary, so the 
Judiciary has no view regarding those.
          courthouse construction (san diego and los angeles)
    Question. The fiscal year 2009 President's budget provides funding 
for only one courthouse--the Courthouse Annex in San Diego. In fiscal 
year 2005, San Diego was one of four emergency projects on the 
Judiciary's Revised Five-Year Courthouse Project Plan (fiscal years 
2005-2009). Due to increased construction materials costs, the scope of 
the project was reduced but the project still requires $110 million, as 
requested by the President in fiscal year 2009, in order to be 
completed. The Los Angeles courthouse project is in a similar 
situation, requiring much more funding. What is the latest on that 
project?
    Answer. The courthouse problem in Los Angeles is a serious one. The 
Central District of California is the largest district in the country 
and current facilities are completely inadequate, primarily because of 
an insufficient number of courtrooms to meet the growing needs of the 
district court and significant security issues at the current location. 
Market conditions and delays have created a price tag for the Los 
Angeles project that far exceeds GSA's original estimates. Despite the 
sizable reductions in scope already made by the court, the cost of this 
project continues to grow and will only get more expensive as time goes 
on. The AO, the court, and GSA have been working together to find a 
solution.
    While the Judiciary recognizes how costly this project is, 
especially in a time of constrained resources for non-security 
discretionary programs, we believe the final project design must 
address long-term needs and provide an environment in which the 
judicial process can function safely and effectively. The Judiciary 
also wants to ensure that when alternatives are considered, all costs 
associated with the options are included in the analysis. Consequently, 
the Judiciary is pleased that GAO has been asked to conduct a review of 
this project and trusts that it will address all aspects of the issue. 
The Judiciary's understanding is that GAO will look into the reasons 
for the delay, the effects of the delay, and the challenges faced in 
managing this project. The Judiciary looks forward to receiving GAO's 
findings.
           budgetary impact of judges assuming senior status
    Question. My understanding of senior status is when judges become 
eligible for senior status, they decrease their workload by 50 percent, 
and need to relocate to other office space, freeing up the former space 
and staff for an existing full-time judge. Then the senior judge is 
entitled to new staff: 3 law clerks and one administrative staff. So, 
all this results in requiring more resources (for which less work may 
be accomplished).
    Answer. Many senior judges do not reduce their workload by 50 
percent. Many continue to carry a full caseload. There is no specific 
workload requirement for senior judges although a senior judge must 
perform ``substantial judicial work'' to employ staff and receive 
``suitable quarters.'' The number of staff the senior judge receives 
must relate directly to the workload he or she performs. An annual 
certification process in place considers projected and actual workload 
in order for a senior judge to continue having office space and staff 
support.
    While there are staff and space costs associated with a judge 
taking senior status, it is important to emphasize that senior judges 
are essentially volunteering their time in continued service to the 
federal Judiciary. A judge eligible for senior status could otherwise 
choose to retire and leave office at the same pay without rendering any 
judicial service at all. But over 400 appellate and district court 
judges forego full retirement, and instead take senior status and 
continue taking cases. They are essential to the work of the federal 
courts. In 2007, senior judges participated in 19 percent of cases 
terminated on the merits in the appellate courts. In the district 
courts, senior judges handled 18 percent of the civil and criminal 
caseload. Both of these statistics are at the highest level in a 
decade.
    When Article III judges take senior status, they continue to 
receive the salary they were earning at the time they left active 
service. For a senior judge to receive the same cost of living 
increases as an active Article III judge, the senior judge must perform 
at least 25 percent of the work performed by ``an average judge in 
active service.'' 28 U.S.C.  371(b)(1), (e)(1).
    The number of senior judges working in the courts are taken into 
consideration when determining the number of new judgeships the 
Judicial Conference requests from Congress. If the Judiciary were to 
see a sharp dropoff in the number of senior judges working in the 
courts, it would likely result in more judgeships being requested from 
Congress in order to make up for the lost productivity resulting from 
fewer senior judges.
    Question. How many judges are currently eligible for senior status?
    Answer. As of December 31, 2007 there were 473 Article III senior 
judges, and 92 active judges were eligible to take senior status. An 
additional 48 currently active judges have senior status eligibility 
dates between January 1, 2008 and December 31, 2008.
    Question. Of those, how many have been eligible for more than one 
year?
    Answer. Of the 92 active judges that were eligible to take senior 
status as of December 31, 2007, 77 had been eligible to take senior 
status prior to January 1, 2007. The other 15 active judges became 
eligible for senior status during 2007.
    Question. So, this means that the Judiciary must continually 
request funding for space and staffing for senior judges--and sometimes 
you receive this funding--but you may not always need it?
    Answer. The Judiciary does not assume that all judges eligible to 
retire or take senior status will in fact do so. The Judiciary uses 
historical patterns to estimate the number of judges that will retire 
or take senior status. In formulating the fiscal year 2009 budget 
request, the Judiciary estimated that 33 of the 55 judges eligible in 
fiscal year 2009 will retire or take senior status. Based on the 
Judiciary's projection of when judges would retire/take senior status 
during the year, the Judiciary estimates that the 33 judges would 
equate to 20 FTE for budget purposes. Of the 20 FTE, 18 are projected 
to take senior status and continue taking cases, and two to retire and 
leave the federal bench.
    In the event fewer judges take senior status than the Judiciary 
requested funding for, that funding is carried forward to offset the 
Judiciary's appropriation requirements in the following fiscal year. 
However, the Judiciary endeavors to provide the Appropriations 
Subcommittees with the most accurate projection of judges expected to 
take senior status. As is done each year, the Judiciary will continue 
to refine its estimates of judges retiring/taking senior status and 
will update the Appropriations Subcommittees--through the 2008 Spring 
and Fall budget re-estimate process--on any changes to senior judge 
projections that will impact the Judiciary's fiscal year 2009 
appropriation requirements.
     senior judges at the court of appeals for the federal circuit
    Question. The Federal Circuit is requesting an almost 20 percent 
(or $5.3 million) increase in its budget for fiscal year 2009. The 
largest part of this increase ($2.5 million) appears to be the 
staffing, and leased office space and build-out for senior judges.
    [Clerk's Note.--The Court of Appeals for the Federal Circuit's 
budget request does not fall under the jurisdiction of the Judicial 
Conference of the United States and its Budget Committee. Accordingly, 
this response was prepared by the Federal Circuit and its Chief Judge 
Paul R. Michel.]
    What is the space situation at the Federal Circuit and what is the 
status of judges going to senior status?
    Answer. Federal Circuit Judges occupy every judge's chambers 
available to the Federal Circuit in the National Courts Building 
complex. (The building complex houses two courts, and both courts have 
assigned all available chambers space to judges.) This includes one 
sub-standard chambers on the ground floor of Dolley Madison House. That 
chambers has historically been used as swing space or to house visiting 
judges temporarily sitting by designation, or for other special 
purposes. There is no other space suitable or available to judges. The 
Federal Circuit has no vacant and unassigned chambers, and none is 
anticipated.
    In fiscal year 2009 the Federal Circuit will have seven judges who 
are or will be eligible to take senior status. Today the Federal 
Circuit has no space available in the National Courts Building for even 
one additional senior judge and has no off-site leased space for them, 
either. If any one of the seven judges who is or will be eligible to 
take senior status in fiscal year 2009 does so, there will be no 
chambers available in the National Courts Building or in off-site 
leased space once a replacement judge is confirmed. At least two of the 
seven judges who will be eligible for senior status are expected to 
take senior status when they become eligible in fiscal year 2009. The 
Federal Circuit must acquire leased space off-site for the judges who 
have indicated a desire to take senior status in fiscal year 2009 and 
2010.
    Note about staffing for a senior judge: Historically, senior judges 
at the Federal Circuit work less than 50 percent of an active judge's 
caseload and are therefore entitled by rule to only one law clerk.
    Question. So, the Federal Circuit seeks the funding associated with 
senior status, not knowing whether the judges will actually take senior 
status?
    Answer. As a rule, no one knows when a judge will decide to take 
senior status except that judge. Timing can be highly personal, and 
advance notice varies for each individual. There are strong indications 
that at least one of the judges eligible to take senior status in 
fiscal year 2009 plans to do so, and that at least one additional judge 
will choose to take senior status in fiscal year 2010. By fiscal year 
2010, eight of the twelve active judges on the Federal Circuit will be 
eligible to take senior status. If the Federal Circuit acquires off-
site chambers for senior judges one chambers at a time, only after the 
President has been notified that a judge is taking senior status, the 
Federal Circuit could have senior judges occupying off-site leased 
space in as many as eight different locations around Washington, DC, 
perhaps far from the courthouse. Logistics, security, and 
transportation would be challenges, and judges would feel isolated from 
their colleagues. Accordingly, the Court has been working with the 
General Services Administration and the Administrative Office of the 
U.S. Courts to lease nearby off-site space this year (fiscal year 2008) 
to accommodate up to five senior judges in the next two years. Five is 
a mid-range number the Court believes to be reasonable in providing 
space for prospective senior judges. The number will allow for changes 
in decision by judges based on health or other personal issues without 
over-reaching by seeking off-site space for every eligible judge who 
may or may not choose to take senior status. Five chambers will allow 
for economies of scale in long-term leasing and building out 
prospective chambers while reducing the risk of leaving significant 
space unoccupied.
    Question. What happens if the funding is provided and the judges do 
not take senior status?
    Answer. The chambers will remain available until occupied by 
whichever judge needs them. If Judge A does not take senior status in 
fiscal year __ the chambers will remain available for Judges B, C, D, 
etc. As described above, it is virtually certain that off-site chambers 
will be occupied in the next two years by at least one judge and most 
probably by at least two judges, although not all chambers will likely 
be occupied at the outset. It is possible that housing senior judges 
together in suitable space near the courthouse will induce judges to 
take senior status when they wish to take it, knowing they have 
appropriate space in close proximity to their colleagues. It takes time 
to find suitable space, negotiate a lease through GSA, and design and 
complete the build out. The Court has been at this effort for several 
years and is very nearly out of time. Funds appropriated to house 
senior judges will not be wasted, and space will be available even on 
short notice to accommodate situations that arise with little or no 
advance warning.
                 impact of increased border enforcement
    Question. Our borders, particularly the Southwest Border, have been 
an area of increased enforcement in order to combat illegal immigration 
over the past several years. Because that increased enforcement results 
in more cases in the courts, we have provided the Judiciary with 
additional resources to manage that workload. Director Duff, your 
testimony indicates that this increased enforcement affects other parts 
of the country, not only the Southwest Border. Please discuss this in 
further detail as well as the resulting implications.
    Answer. The increased emphasis by Congress and the Administration 
on immigration enforcement has had the greatest impact on the five 
federal district courts along the Southwest border with Mexico. Other 
districts throughout the country, however, have also been impacted by 
this increased enforcement. In 2002, there were 11,791 criminal cases 
for violations of federal immigration laws. Of these, 7,735 cases were 
in the five Southwest border district courts and 4,056 cases were in 
the remaining 89 judicial districts. In 2007, there were 15,898 
criminal cases for violations of federal immigration laws. Of these, 
10,953 were in the Southwest border courts, and 4,945 were in the 
remaining 89 judicial districts. Non-border immigration caseload in the 
federal courts increased 22 percent in this five year period. 
Immigration-related cases can present challenges to a court, including 
the need to hire or contract for qualified interpreters to assist in 
court proceedings.
    Increased immigration enforcement has impacted our appellate courts 
as well. Challenges to Board of Immigration Appeals (BIA) decisions in 
the appellate courts totaled 1,777 cases in 2001, peaked at 12,725 
cases in 2006, then declined to 9,338 cases in 2007--a more than 400 
percent increase over 2001. About one-third of all BIA decisions are 
challenged in the federal appellate courts with 70 percent of those 
challenges occurring in the Second and Ninth Circuits. While BIA 
appeals have dropped in the last year, these cases continue to demand 
extensive resources since they often turn on a credibility 
determination by a Department of Justice immigration judge, thus 
requiring close judicial review of a factual record by the appellate 
courts.
    The Judiciary will utilize the additional resources provided by 
Congress to respond to workload needs throughout the federal court 
system and not just on the Southwest border.
           judicial authority for offender re-entry programs
    Question. I have supported offender reentry programs like job 
training, education, drug and mental health treatment for many years, 
as part of the effort to reduce criminal recidivism. Does the Judiciary 
have the legislative authority it needs to increase the likelihood of 
successful offender reentry into the community and positive outcomes 
for post-conviction supervision?
    Answer. The Judicial Conference believes it needs explicit 
authority to permit the Director of the Administrative Office to 
contract for non-treatment services (e.g., medical, educational, 
emergency housing, and vocational training) and other re-entry 
interventions for post-conviction offenders generally. At its September 
2005 session, the Conference approved proposed language which was 
submitted to Congress on November 14, 2005. Specifically, the proposed 
legislation amends 18 U.S.C.  3672 to allow the AO Director to 
contract for re-entry services, including treatment, equipment, 
emergency housing, vocational training, and other re-entry 
interventions. I am pleased to report this provision was included in 
the Second Chance Act which was signed into law on March 30, 2008 
(Public Law 110-199).
    The Judicial Conference also supports legislation that would amend 
18 U.S.C.  3154 to authorize the AO Director to contract for similar 
services for defendants released pending trial, and to amend both 18 
U.S.C.  3154 and 18 U.S.C.  3672 to authorize the Director to expend 
funds for emergency services for defendants on pretrial release and 
offenders on post-conviction supervision respectively. This proposed 
legislation was submitted to Congress on April 16, 2007.
    Expansion of the Director's authority will allow probation and 
pretrial services officers to obtain contract services for all persons 
under their supervision who need them. Research consistently indicates 
that certain approaches yield demonstrable and measurable results in 
the reduction of recidivism. With expanded authority, officers will 
make greater use of practices such as cognitive-behavioral treatment, 
job training, and employment placement programs that have been proven 
effective in obtaining successful outcomes and making the community 
safer.
    The addition of authority to expend funds for emergency services 
for defendants on pretrial release and offenders on post-conviction 
supervision respectively would provide officers with the ability to 
deal with day-to-day incidental expenses. Officers often use their own 
personal money to assist offenders with small expenditures such as bus 
fare to go for a job interview.
    Of course, if expenditure authority is enacted, guidance and 
clarification would be developed to ensure that it is used 
appropriately. Some of the issues requiring clarification would include 
the type of ``emergency'' services that are authorized and the spending 
limit.
                              rent savings
    Question. Over the past few years, the Judiciary has realized 
substantial savings (more than $50 million) in rent overcharges from 
the General Services Administration. Judge Gibbons, your testimony 
indicates that another $10 million savings is expected in fiscal year 
2008. Now that you and GSA are working cooperatively in this effort, at 
what point do you expect this savings to level off (or do you expect to 
continue to have a savings in the tens of millions)?
    The Judiciary believes it is important to continue to work with the 
courts and GSA to compare the space actually occupied by the courts to 
the space assignment drawings used by GSA. These drawings are used to 
establish the basis for rent bills and it is therefore very important 
that they are accurate. The Judiciary and GSA have recently revised the 
existing approach to verifying the assignment drawings to the space 
actually occupied and to adjust the rent bill in connection with errors 
identified during rent validation so that rent bill adjustments for 
overcharges can be performed on a more expedited basis. Although we 
believe that the major rent overcharges have been identified and 
corrected, savings will continue to be realized if further overcharges 
are identified during our ongoing and continuous reviews of GSA rent 
bills.
    A second initiative underway for the Judiciary is the review of GSA 
appraisals used to set rental rates to ensure their accuracy. It is 
uncertain at this time whether this review will result in significant 
savings for the Judiciary.
 projects under the ``care of the building and grounds of the supreme 
                                court''
    Question. The Care of the Building and Grounds fiscal year 2009 
appropriation request total $18.4 million, an increase of $6.2 million 
(51.2 percent) over the fiscal year 2008 appropriation level. 
Modernization of the Supreme Court construction project began in 2004 
and expected completion is the fall of this year, costing a total of 
$122.3 million.
    [Clerk's Note.--The Supreme Court's budget request does not fall 
under the jurisdiction of the Judicial Conference of the United States 
and its Budget Committee. Accordingly, this response was prepared by 
the Supreme Court.]
    What was achieved with this expenditure of funds?
    Answer. Phase I of the project--the construction of the underground 
police annex, the Architect of the Capitol (AOC) shop and parking 
areas--was completed in late 2005. Phase II of the project--the 
interior building modernization--is ongoing and includes updated life 
safety systems, windows, mechanical, electrical, and plumbing systems. 
The work on one of the four building quadrants is complete. The second 
quadrant is scheduled for completion during the summer of 2008.
    The contractor's projected completion date for the entire 
modernization project is the summer of 2010. Although the building 
modernization project is more than a year behind, the project continues 
to be within budget.
    Question. Do you expect any further modernization needs in the 
short-term future?
    Answer. The Court does not foresee further modernization 
requirements outside the current scope of the modernization project. 
With the project two years away from completion, however, unforeseen 
circumstances may arise that would require a request for additional 
funding.
    Question. Separate projects include the exterior property 
renovation/landscaping project and the roof system project. For fiscal 
year 2009, the Supreme Court is requesting $6.3 million to complete 
construction to renovate the exterior landscape of the Supreme Court as 
well as $2.1 million for phase 2 (of 5 phases) to repair the roof, 
which is to be completed in 2011. Once the modernization, property 
renovation/landscaping, and roof projects are completed, will Care of 
the Buildings and Grounds of the Supreme Court go back down to a 
maintenance request level or are further projects anticipated in the 
near future?
    Answer. When the modernization project is completed, approximately 
$3 million will be needed to complete the installation of the perimeter 
security plan around the Court building and grounds. Additional funding 
will also be needed to complete the planned roof repairs. Although some 
funding has been already provided to restore the stone sculptures of 
the East and West pediments and roof perimeters of the building, it is 
likely that more funding will be needed to repair and restore the 
stonework in the building's four interior courtyards. At this time, no 
other major projects are anticipated, and future funding requests 
should be more in keeping with normal maintenance-level requirements 
for the care of the building and grounds.
          retroactivity of crack cocaine sentencing amendment
    Question. The U.S. Sentencing Commission, an independent agency 
within the Judiciary, promulgates the sentencing guidelines that 
federal trial court judges consult when sentencing defendants convicted 
of federal crimes. Last year, the Sentencing Commission amended federal 
guidelines reducing offenses under federal sentencing guidelines for 
crack cocaine offenses. Furthermore, the Commission unanimously decided 
to make the policy change retroactive and this retroactivity became 
effective on March 3, 2008.
    Will crime victims be notified of an inmate's release and will they 
have an opportunity to provide comment to the court prior to an 
inmate's release?
    Answer. Judges have been asked by the Bureau of Prisons (BOP) to 
delay for 10 days the effective date of any sentence reduction that 
results in an inmate's immediate release. This delay is needed, in 
part, to give the BOP adequate time to notify victims and witnesses of 
the offender's release, as they are required to do per 18 U.S.C.  
3771. The Judiciary is unaware if the Department of Justice will 
attempt to contact victims to seek comment prior to an inmate's 
release. It should also be noted that because of the nature of these 
offenses, most cases will not have an identifiable victim within the 
meaning of the Crime Victim Rights Act.
    Question. What measures are U.S. probation offices taking to 
address community safety issues and to ensure a smooth transition for 
inmates released into the community?
    Answer. Probation officers will play a key role in recalculating 
the inmate's amended guideline range and identifying any post-sentence 
conduct that may impact the judge's decision. Officers will do that in 
part by reviewing the inmates disciplinary records and progress reports 
that are prepared by the BOP. Officers were recently provided with 
refresher training for the BOP's Sentry system, which allows officers 
to access information on an inmate's performance while in the BOP. If 
the officer identifies a risk that cannot be addressed by the 
conditions originally imposed, the probation officer may ask the court 
to modify or impose additional conditions of supervised release. These 
may include conditions for halfway house placement, drug or mental 
health treatment, or home confinement.
    Prerelease planning ordinarily begins several months before an 
inmate's release, and addresses issues such as an inmate's release 
residence, continuity of any treatment, and potential employment. It is 
possible that some offenders will receive a sentence of time served and 
not have a pre-release plan in place. In such cases, the probation 
officer and BOP staff will use the 10-day period requested by the 
government to develop a plan for the inmate's release. The probation 
officer and BOP staff will prioritize the inmate's needs and attempt to 
address as many as possible before the inmate's release. Most pressing 
will be to identify an appropriate release residence. Once released, 
the officer will conduct a thorough assessment and make any necessary 
referrals to assist the offender in his or her reentry back to the 
community.
    Question. Please discuss your post-conviction supervision program. 
How do you determine the services and support supervisees require and 
receive, including education, job training, and treatment?
    Answer. In most cases, an offender's needs have been identified 
well before supervision begins, either at the pretrial or presentence 
stage of the Federal criminal justice system. The presentence report 
and the resulting sentencing document identify treatment, educational, 
employment, and other needs that will most likely have associated 
special conditions of the supervision term.
    Following an offender's placement on probation or release from an 
institution, the probation officer works with the offender to assess 
the offender's risks, needs and strengths to prepare an individualized 
comprehensive supervision plan. Not all offenders require the same 
level of supervision to reach this goal. It is the officer's job to 
distinguish among them and to implement supervision strategies that are 
appropriately matched with the offender's risks, needs and strengths.
    If substance abuse or mental health treatment conditions are 
ordered, the officer will either conduct an informed assessment or 
direct the person to undergo a clinical assessment performed by a 
professional treatment provider. If treatment is necessary, the officer 
refers the offender to a treatment program tailored to his needs. 
Treatment is part of the overall supervision objectives and strategies 
for the case. The officer monitors the offender's progress in treatment 
and collaborates with the treatment provider to further the offender's 
chances for success on supervision.
    If education is identified as a need for an offender who never 
completed high school, the officer may identify obtainment of a GED as 
a supervision objective. If so, the officer assists the offender in 
enrolling in a local educational program. The officer continually 
monitors the offender's progress in this type of program, as well as in 
many others, intended to enhance the offender's success on supervision 
and beyond.
    With respect to an unemployed or underemployed offender, federal 
probation officers are now working in partnership with the Bureau of 
Prisons, the Department of Labor and the National Institute of 
Corrections to create a systems approach to offender reentry and 
workforce development. Points of contact in each state have been 
identified to bring implementation of these partnerships to the local 
level. Probation and pretrial services officers have been trained as 
``offender workforce development specialists'' in 36 states. Federal 
probation continues to expand the initiative by training more probation 
officers each year as offender employment specialists. Those trained 
then develop workforce development partnerships within their states and 
communities. Career fairs sponsored by Federal Probation for ex-
offenders have been held in communities in each region of the country, 
and partnerships have been developed with colleges, one-stop centers, 
and community and faith-based organizations to provide resources and 
training for ex-offenders that provide career opportunities in 
occupations identified by the President's High Growth Jobs Initiative. 
This collaborative effort has reduced violations, revocations, and 
recidivism rates with respect to those who have participated in the 
employment initiative. Nearly 93 percent of those who start federal 
supervision employed are still employed at the time their cases close, 
a strong indicator that they have adapted to the community and are more 
likely to be successful after completing supervision.
    If, during the period of supervision, an officer identifies 
educational, vocational or treatment needs for which there is no court-
ordered special condition requiring the offender participation in the 
program(s), the officer will petition the court to modify the release 
conditions accordingly. A court-ordered special condition allows the 
officer to leverage sanctions if the offender does not comply with the 
condition. In many cases, the backing of the court will induce the 
offender to achieve the necessary skills and/or treatment necessary to 
succeed on supervision and beyond. All of the above interventions, in 
addition to individualized professional care and concern, contribute 
toward the goal of increasing the likelihood of success on supervision.
    Question. Do you have any data on education levels of people under 
supervision and do you ensure that supervisees have opportunities to 
earn a GED if needed?
    Answer. If education is identified as a need for an offender who 
never completed high school, the officer may identify obtainment of a 
GED as a supervision objective. If so, the officer assists the offender 
in enrolling in a local educational program. The officer continually 
monitors the offender's progress in this type of program, as well as in 
many others, intended to enhance the offender's success on supervision 
and beyond.
    Data on education levels of people under supervision:

PERSONS RECEIVED FOR POST-CONVICTION SUPERVISION FOR THE 12 MONTH PERIOD
                            ENDING 09/30/2007
------------------------------------------------------------------------
                Education Level                    Number      Percent
------------------------------------------------------------------------
No Formal Education...........................          476            1
Some Elementary...............................            1  ...........
Elementary through 8th Grade..................        3,112            7
Some High School..............................       12,581           27
Graduate Equivalency..........................        7,123           15
Some Vocational School........................            9  ...........
Vocational School Graduate....................          441            1
High School Diploma...........................       10,312           22
Some College..................................        8,905           19
College Graduate..............................        2,920            6
Post Graduate.................................          643            1
                                               -------------------------
      Total...................................       46,523          100
------------------------------------------------------------------------
Modified Table E-1. Excludes pre-existing cases transferred between
  districts and cases where the education level was unavailable or not
  applicable.

                           judiciary workload
    Question. The new bankruptcy legislation took effect in October 
2005 and it appears that filings are still down from pre-Bankruptcy Act 
levels. From your testimony, it appears that you expect a significant 
increase in the number of bankruptcy filings--a 23 percent increase.
    What trend do you expect in the future?
    Answer. Following the implementation of the Bankruptcy Abuse 
Prevention and Consumer Protection Act of 2005 (BAPCPA) in October 
2005, filings plummeted, falling roughly 50 percent from 1,484,570 
filings in 2006 to 751,056 filings during 2007. The Judiciary's latest 
projections indicate that the number of petitions filed is expected to 
rise rapidly over the next two years, growing 23 percent in 2008 and 
another 13 percent in 2009. While, historically, there have been a 
handful of years where double-digit percentage increases have occurred, 
these 2008 and 2009 projections are still well below what would have 
been projected had BAPCPA not been enacted. The number of more work-
intensive chapter 13 petitions is expected to reach pre-BAPCPA levels 
much sooner than the number of chapter 7 petitions.
    Question. Will the current downturn in the economy likely further 
increase filings?
    Answer. The Judiciary's bankruptcy filing projections assume that 
economic growth will be slow--but positive--and that consumer debt will 
remain high. If the economy worsens, filings would increase more 
rapidly in the near term. No consensus opinion exists regarding the 
degree to which a recession would affect overall filings.
    Along with a slowing economy, a number of other factors indicate 
that filings could continue to grow at a fast pace, namely (1) the debt 
service burden is at or near record levels, (2) mortgage foreclosure 
rates have been rising, and (3) adjustable rate mortgage resets have 
made some monthly mortgage payments prohibitively expensive.
    Passage and enactment of bankruptcy reform legislation currently 
under consideration in Congress, which would strike the current 
exemption of a mortgage on a debtor's principal residence, would likely 
result in a surge in chapter 13 filings.
    Question. In your written testimony, you discussed the impact of 
the bankruptcy law passed by Congress in 2005. You wrote: ``Our 
bankruptcy courts have indicated that the actual per-case work required 
of the bankruptcy courts has increased significantly under the new 
law.'' You also discussed the increased workload for debtors filing for 
bankruptcy under Chapter 7. Do you also agree that in the aftermath of 
the 2005 bankruptcy law there has also been an increased workload for 
bankruptcy trustees?
    Answer. Yes, the workload for bankruptcy trustees has increased in 
the aftermath of the 2005 bankruptcy reform legislation. For example, a 
Chapter 7 case trustee must now review results of the debtor's means 
test, review extensive documentation provided by the debtor (pay stubs, 
mortgage documents, etc.), and provide the court a statement if the 
debtor's case is presumed to be abusive. The trustee must prosecute a 
motion to dismiss a case if substantial abuse of a Chapter 7 filing is 
discovered. There are also audit responsibilities for the case trustee 
to ensure that the debtor's schedules of income and expenses are 
accurate.
                                 ______
                                 
              Questions Submitted by Senator Sam Brownback
    Question. Your fiscal year 2009 budget submission does not request 
resources for additional staff in clerks and probation offices. Do you 
feel that you currently have the appropriate number of staff to address 
your workload?
    Answer. Although the courts do not currently have the appropriate 
number of staff on board to address workload needs, the funding made 
available by Congress in fiscal year 2007 and fiscal year 2008 will 
allow the courts to narrow the gap between current staffing levels and 
workload. This funding will be utilized over a three year period--
fiscal years 2007-2009--to increase staffing levels in the courts. In 
addition to the staff hired in fiscal year 2007, the Judiciary 
anticipates the courts will bring on another 305 FTE during fiscal 
years 2008 (150 FTE) and 2009 (155 FTE).
    In fiscal year 2007, Congress provided the courts with $20.4 
million to address the most critical workload needs. Because full-year 
funding was not made available to the courts until six months into the 
fiscal year, most of these new staff will be brought on board in fiscal 
year 2008. Hence, the $20.4 million was planned to be utilized during 
fiscal years 2007 and 2008. The fiscal year 2008 financial plan 
includes $15 million of the $20.4 million to hire 150 FTE to meet 
critical workload demands.
    In fiscal year 2008, Congress provided the Judiciary with $25 
million in emergency appropriations to address workload stemming from 
increased immigration enforcement. Of this amount, $14.5 million will 
be used to hire 155 FTE in clerks and probation offices, and the 
remaining $10.5 million provided for Defender Services will be used to 
pay private panel attorneys handling immigration cases. With the $14.5 
million, the Judiciary estimates that the courts will bring on the 155 
FTE over two years: 35 FTE in fiscal year 2008 and 120 FTE in fiscal 
year 2009.
    Question. Please describe your current workload along the Southwest 
Border. Has the Judiciary been impacted by the additional law 
enforcement resources added to the border?
    Answer.
Impact on the Federal Courts
    The federal courts along the Southwest Border (SWB) have been 
impacted by additional law enforcement resources provided to the 
Department of Homeland Security (DHS) and the Department of Justice 
(DOJ) for border and immigration enforcement initiatives.
    Criminal filings along the SWB increased 11 percent between 2002 
and 2007, and filings in those five district courts currently account 
for nearly one-third of all criminal cases nationwide. The time 
sensitive nature of criminal cases, created by statutory issues 
involving speedy trials requirements, multiple hearings for defendants 
(e.g. initial appearances, arraignments, and pleas in the early 
stages), and the need for interpreter services, increase the courts' 
need for adequate staffing resources.
    The SWB courts have the five highest number of felony defendants 
per judgeship and felony defendants along those five district courts 
currently account for nearly one-third of all felony defendants 
nationwide. In addition, the districts of Texas-Southern, New Mexico, 
and Texas-Western have experienced compounded growth rates in criminal 
caseload of 9.2 percent, 4.6 percent, and 9.1 percent, respectively, in 
the number of felony defendants from 2004 to 2007.
    Pretrial caseload along the SWB has increased as well. From 2002 to 
2007, the five SWB districts experienced a 28 percent increase in 
pretrial services cases activated compared to 8 percent growth 
nationally over the same period. By June 2007, the SWB districts 
accounted for 35 percent of all pretrial cases activated in the federal 
system.
    In the probation program, SWB districts experienced a 10 percent 
increase in the number of supervision cases from 2002 to 2007. 
Nationally, the growth in post-conviction cases for that period was 7 
percent. The five SWB district have consistently made up 13-14 percent 
of the total number of cases under post-conviction supervision in the 
federal system between 2002 and 2007.
    While criminal case filings in the federal courts in the five 
judicial districts along the Southwest border is high by historical 
standards, filings have not increased commensurate with the increased 
resources provided to DHS for border enforcement. Despite zero 
tolerance border initiatives such as Operation Streamline in which 
nearly everyone apprehended for violating U.S. immigration laws is 
prosecuted, resource constraints in the justice system have precluded 
more cases from being prosecuted in the federal courts. Staffing 
shortages in U.S. Attorney offices, lack of detention beds needed to 
secure offenders awaiting prosecution, and staffing constraints in U.S. 
Marshals offices have resulted in the establishment of certain 
threshold levels in some border districts that must be met before a 
case is prosecuted. For example, a U.S. Attorney in one district may 
prosecute someone coming into the country illegally after the tenth 
attempt, while a U.S. Attorney in another district may prosecute after 
the fifth attempt.
More Resources Being Provided to the Border
    The President's fiscal year 2009 budget includes $12 billion for 
DHS for border security and enforcement efforts, a 19 percent increase 
over fiscal year 2008, and a more than 150 percent increase since 2001. 
DHS has used the funding to increase the number of border patrol agents 
significantly, particularly on the Southwest border with Mexico. Since 
2001, more than 5,000 additional border patrol agents have been hired 
with most of them placed along the Southwest border. In fiscal year 
2008, DHS received funding to hire an additional 3,000 border patrol 
agents, and the President's fiscal year 2009 budget includes funding 
for another 2,200 agents, bringing the total to 20,000 agents. When 
fully staffed the Border Patrol will have more than doubled in size 
since 2001.
    In fiscal year 2008 DOJ received $7 million in emergency funding to 
hire more assistant U.S. Attorneys (AUSAs) in the five judicial 
districts along the Southwest border. The U.S. Marshals Service 
received $15 million in emergency funding to address Southwest border 
workload needs including the hiring of 100 additional deputy U.S. 
Marshals. The President's fiscal year 2009 budget includes $100 million 
for a new Southwest Border Enforcement Initiative focusing law 
enforcement and prosecutorial efforts on fighting violent crime, gun 
smuggling, and drug trafficking in that region. If funded, this 
initiative will increase the number of AUSAs along the Southwest border 
by another 50 positions. The President's budget also seeks $88 million 
to expand detention capacity along the southwest border.
    The resultant increase in criminal filings from this infusion of 
resources will impact district judges, clerks offices, probation and 
pretrial services offices, and federal defender offices on the border. 
The Judiciary's fiscal year 2009 budget submission, however, does not 
request funding for new clerks or probation or pretrial services staff 
on the border or elsewhere. Congress provided the Judiciary with $45.4 
million over the last two years--$20.4 million in fiscal year 2007 and 
$25 million in fiscal year 2008--to address immigration-related 
workload so, from a staffing perspective, the courts are well 
positioned in the short term to respond to the increased workload that 
is expected to materialize.
    Question. What additional actions is the Judiciary taking to reduce 
rent?
    Answer. The fiscal year 2009 Judiciary budget request reflects 
lower requirements as a result of measures incorporated since the cost-
containment strategy was initiated in fiscal year 2004. Specific 
examples of planned or ongoing initiatives that are helping the 
Judiciary manage costs, or will help in the future include: 
establishing an annual budget cap for GSA space rental costs for fiscal 
years 2009 through 2016, which limits annual growth by an average of 
4.9 percent per year; revising the U.S. Courts Design Guide to lower 
future rental costs of space for chambers, attorneys, and court staff; 
validating GSA rent bills for each court facility and examining the GSA 
appraisal methodology to ensure rent charged is comparable to 
commercial rates; establishing ``asset management planning'' as the 
Judiciary's new long-range facilities planning methodology that will 
identify the most cost-effective strategy for meeting the court's 
operational needs, while controlling and containing costs, especially 
rent to GSA; and negotiating a return on investment pricing structure 
with GSA for all new space acquisitions, which replaces a market 
pricing approach.
    Question. In particular, a GAO report identified several 
opportunities for the Judiciary to reduce its space usage and therefore 
its rent costs. What has the Judiciary done in response to that report?
    Answer. Recommendation 1: Work with GSA to track rent and square 
footage trend data on an annual basis for the following factors: (1) 
rent component (shell rent, operations, tenant improvements, and other 
costs) and security (paid to the Department of Homeland Security); (2) 
judicial function (district, appeals, and bankruptcy); (3) rentable 
square footage; and (4) geographic location (circuit and district 
levels). This data will allow the Judiciary to create a better national 
understanding of the effect that local space management decisions have 
on rent and to identify any mistakes in GSA data.
    Actions of the Judiciary:
  --The Judiciary is continuing its efforts to obtain from GSA more 
        specific information with regard to its rent bills that will 
        aid the Judiciary in assigning costs to its various components. 
        This effort has been quite time consuming as it requires GSA to 
        remeasure its space and reclassify the information in GSA's 
        database according to its type, e.g., district court courtrooms 
        and chambers, clerk's office space, libraries, etc.
  --The Judiciary is also continuing its national rent validation 
        initiative to identify mistakes in GSA data. The program has 
        been successful on a number of fronts. The Judiciary has 
        received rent credits and long-term savings (cumulative savings 
        over a 3-year period of over $50 million) and has benefited 
        from GSA's improved internal management controls on its rent-
        setting practices. We anticipate receiving additional rent 
        adjustments and credits resulting from over $10 million in rent 
        errors that we recently reported to GSA. Additionally, the 
        Judiciary (and GSA) now has in place a program to help ensure 
        that accurate rent bills are sustained over the long term.
  --As a follow-on to the base-line review of current rent bills, the 
        Judiciary has embarked on a program to: (1) ensure future rent 
        rates are appropriate; (2) maintain a website that will allow 
        court personnel to determine quickly and easily the amount and 
        cost of the space they occupy in federally owned facilities; 
        and (3) design a training curriculum to provide court personnel 
        with a comprehensive understanding of the rules, regulations, 
        and procedures that govern the assignment, classification, and 
        rental-rate determination for the space they occupy in 
        federally owned facilities.
  --On February 19, 2008, the Director of the Administrative Office and 
        the Commissioner of GSA's Public Buildings Service signed a 
        Memorandum of Agreement (MOA) that changes the way rent will be 
        calculated for all federally owned courthouses to be delivered 
        in the future. The MOA outlines a new process for determining 
        rental rates based on a return on investment methodology. Under 
        the MOA, the rent will be fixed for the first 20 years of 
        occupancy and will be set to return to GSA approximately 7 
        percent per year of its capital costs; operating costs will be 
        adjusted annually to reflect GSA's actual operating expenses. 
        Both the Judiciary and GSA will benefit from knowing with 
        certainty how much rent the Judiciary has to pay and how much 
        rent GSA will receive.
    Recommendation 2: Create incentives for districts/circuits to 
manage space more efficiently. These incentives could take several 
forms, such as a pilot project that charges rent to the circuits and/or 
districts to encourage more efficient space usage.
    Actions of the Judiciary:
  --In September of 2007, the Judicial Conference approved creation of 
        the Circuit Rent Budget (CRB) program as part of the 
        Judiciary's overall cost containment efforts. CRB is designed 
        to promote greater fiscal discipline in the management of the 
        Judiciary's use of space by aligning, at the circuit judicial 
        council level, the budget responsibility for rent, with the 
        authority to determine space need.
  --The chief purpose of CRB is to enable the Judiciary to hold space 
        cost growth to no more than 4.9 percent, on average, over the 
        next eight years. The 4.9 percent cap on rent growth was 
        approved by the Judicial Conference in September of 2006.
  --In essence, CRB allocates rent funds to circuits to cover both 
        existing space assignments as well as space growth, with space 
        growth carefully limited through centralized approval of large 
        projects, and by a formulaic distribution to individual 
        circuits of authority to add to the rental base.
  --Since its approval by the Judicial Conference in September 2007, 
        the CRB program has been one of the Judiciary's main priorities 
        in the space area. This initiative constitutes a dramatic 
        change in the Judiciary's management of space and rent costs 
        and its implementation affects virtually every work process and 
        system currently in place.
  --Now in its pilot year, CRB is transforming the way the Judiciary 
        plans for and approves new space acquisitions. Numerous 
        initiatives are in progress to make the CRB program fully 
        functional and successful. Some of the initiatives include, but 
        are not limited to: a major communications and training plan; 
        and implementation and testing of updated procedures, forms, 
        and processes. The automated system, the Judiciary's Facilities 
        Asset and Construction System (JFACTS), is also being 
        redesigned to support the re-engineering of the Judiciary's 
        space and rent program.
    Recommendation 3: Revise the Design Guide to: (1) establish 
criteria for the number of appeals courtrooms and chambers; (2) 
establish criteria for space allocated for senior district judges; and 
(3) make additional improvements to space allocation standards related 
to technological advancements (e.g., libraries, court reporter spaces, 
staff efficiency due to technology) and decrease requirements where 
appropriate.
    Actions of the Judiciary:
  --Over the last two years, the Judicial Conference of the United 
        States approved multiple reductions to the space standards set 
        forth in the U.S. Courts Design Guide that have reduced staff 
        office sizes and chambers space for senior, district, 
        appellate, bankruptcy and magistrate judges. In addition, the 
        Committee on Space and Facilities plans to consider the 
        criteria for the number of appeals courtrooms. Finally, the 
        Judicial Conference approved technical amendments including 
        reductions in atrium, lighting, and HVAC systems that will 
        result in cost savings.
  --As to the impact of electronic filing on court space, the Judiciary 
        has reduced Design Guide requirements for some of the clerk's 
        office space, including intake areas and records storage, 
        because of the impact of the electronic case filing/case 
        management system and has reduced the library space by 13 
        percent as a result of reductions in lawbook collections.
    Question. More specifically, what is the Judiciary's stance on 
courtroom sharing?
    Answer. The current Judicial Conference policy on courtroom sharing 
is that every active district judge, magistrate judge, and bankruptcy 
judge should have a courtroom. In response to an authorizing resolution 
passed by the House Committee on Transportation and Infrastructure, the 
Judiciary has instituted a policy of one courtroom for every two senior 
judges in all pending courthouse projects. All of the Judiciary's 
courtroom sharing policies for all types of judges are currently being 
studied by the Judicial Conference.

                          SUBCOMMITTEE RECESS

    Senator Durbin. The subcommittee will now stand in recess.
    [Whereupon, at 4:33 p.m., Wednesday, March 12, the 
subcommittee was recessed, to reconvene subject to the call of 
the Chair.]
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