[House Hearing, 113 Congress] [From the U.S. Government Publishing Office] FINANCIAL SERVICES AND GENERAL GOVERNMENT APPROPRIATIONS FOR 2014 _______________________________________________________________________ HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS HOUSE OF REPRESENTATIVES ONE HUNDRED THIRTEENTH CONGRESS FIRST SESSION ________ SUBCOMMITTEE ON FINANCIAL SERVICES AND GENERAL GOVERNMENT APPROPRIATIONS ANDER CRENSHAW, Florida, Chairman JO BONNER, Alabama JOSE E. SERRANO, New York MARIO DIAZ-BALART, Florida MIKE QUIGLEY, Illinois TOM GRAVES, Georgia MARCY KAPTUR, Ohio KEVIN YODER, Kansas ED PASTOR, Arizona STEVE WOMACK, Arkansas JAIME HERRERA BEUTLER, Washington NOTE: Under Committee Rules, Mr. Rogers, as Chairman of the Full Committee, and Mrs. Lowey, as Ranking Minority Member of the Full Committee, are authorized to sit as Members of all Subcommittees. John Martens, Winnie Chang, Kelly Hitchcock, Ariana Sarar, and Amy Cushing, Subcommittee Staff ________ PART 5 Page Supreme Court.................................................... 1 District of Columbia Courts and Court Services and Offender Supervision Agency for the District of Columbia................... 31 The Judiciary.................................................... 107 S ________ Printed for the use of the Committee on Appropriations Part 5 FINANCIAL SERVICES AND GENERAL GOVERNMENT APPROPRIATIONS FOR 2014 ? FINANCIAL SERVICES AND GENERAL GOVERNMENT APPROPRIATIONS FOR 2014 _______________________________________________________________________ HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS HOUSE OF REPRESENTATIVES ONE HUNDRED THIRTEENTH CONGRESS FIRST SESSION ________ SUBCOMMITTEE ON FINANCIAL SERVICES AND GENERAL GOVERNMENT APPROPRIATIONS ANDER CRENSHAW, Florida, Chairman JO BONNER, Alabama JOSE E. SERRANO, New York MARIO DIAZ-BALART, Florida MIKE QUIGLEY, Illinois TOM GRAVES, Georgia MARCY KAPTUR, Ohio KEVIN YODER, Kansas ED PASTOR, Arizona STEVE WOMACK, Arkansas JAIME HERRERA BEUTLER, Washington NOTE: Under Committee Rules, Mr. Rogers, as Chairman of the Full Committee, and Mrs. Lowey, as Ranking Minority Member of the Full Committee, are authorized to sit as Members of all Subcommittees. John Martens, Winnie Chang, Kelly Hitchcock, Ariana Sarar, and Amy Cushing, Subcommittee Staff ________ PART 5 Page Supreme Court.................................................... 1 District of Columbia Courts and Court Services and Offender Supervision Agency for the District of Columbia................... 31 The Judiciary.................................................... 107 S ________ U.S. GOVERNMENT PRINTING OFFICE 80-953 WASHINGTON : 2013 COMMITTEE ON APPROPRIATIONS HAROLD ROGERS, Kentucky, Chairman C. W. BILL YOUNG, Florida \1\ NITA M. LOWEY, New York FRANK R. WOLF, Virginia MARCY KAPTUR, Ohio JACK KINGSTON, Georgia PETER J. VISCLOSKY, Indiana RODNEY P. FRELINGHUYSEN, New JerseyJOSE E. SERRANO, New York TOM LATHAM, Iowa ROSA L. DeLAURO, Connecticut ROBERT B. ADERHOLT, Alabama JAMES P. MORAN, Virginia KAY GRANGER, Texas ED PASTOR, Arizona MICHAEL K. SIMPSON, Idaho DAVID E. PRICE, North Carolina JOHN ABNEY CULBERSON, Texas LUCILLE ROYBAL-ALLARD, California ANDER CRENSHAW, Florida SAM FARR, California JOHN R. CARTER, Texas CHAKA FATTAH, Pennsylvania RODNEY ALEXANDER, Louisiana SANFORD D. BISHOP, Jr., Georgia KEN CALVERT, California BARBARA LEE, California JO BONNER, Alabama ADAM B. SCHIFF, California TOM COLE, Oklahoma MICHAEL M. HONDA, California MARIO DIAZ-BALART, Florida BETTY McCOLLUM, Minnesota CHARLES W. DENT, Pennsylvania TIM RYAN, Ohio TOM GRAVES, Georgia DEBBIE WASSERMAN SCHULTZ, Florida KEVIN YODER, Kansas HENRY CUELLAR, Texas STEVE WOMACK, Arkansas CHELLIE PINGREE, Maine ALAN NUNNELEE, Mississippi MIKE QUIGLEY, Illinois JEFF FORTENBERRY, Nebraska WILLIAM L. OWENS, New York THOMAS J. ROONEY, Florida CHARLES J. FLEISCHMANN, Tennessee JAIME HERRERA BEUTLER, Washington DAVID P. JOYCE, Ohio DAVID G. VALADAO, California ANDY HARRIS, Maryland ---------- 1}}Chairman Emeritus William E. Smith, Clerk and Staff Director (ii) FINANCIAL SERVICES AND GENERAL GOVERNMENT APPROPRIATIONS FOR 2014 ---------- Thursday, March 14, 2013. SUPREME COURT WITNESSES HON. ANTHONY KENNEDY, ASSOCIATE JUSTICE, SUPREME COURT OF THE UNITED STATES HON. STEPHEN BREYER, ASSOCIATE JUSTICE, SUPREME COURT OF THE UNITED STATES JEFFREY MINEAR, COUNSELOR TO THE CHIEF JUSTICE PAMELA TALKIN, MARSHAL OF THE COURT KATHY ARBERG, PUBLIC INFORMATION OFFICER GARY KEMP, DEPUTY CLERK KEVIN CLINE, BUDGET MANAGER Mr. Crenshaw. The meeting will come to order. Good morning to Justice Kennedy and Justice Breyer. We thank you for being here today. You have both testified before this committee before, and you are back. I always wonder how you decide who comes before the subcommittee, whether you volunteer, whether someone volunteers for you. Justice Kennedy. It is based on merit. Mr. Crenshaw. Based on merit. That sounds great. But whatever the reason is, we are glad you are here. We appreciate your willingness, and we always look forward to hearing from the Court. This is one of those rare occasions where we have two branches of government get together in the same room and talk. I think we all know that an independent judiciary that has the respect of the citizens is something that is very important to our country. The fact that you decide these controversial questions is something that our Founding Fathers thought was really important. And while your budget is not as big as some of the other Federal agencies, you have one of the most important roles to play, and we appreciate that. Outside of the confirmation process, this is probably one of the few times that the two branches of government get together and interact. In my opinion, it is one of the most important things we can do, and recognize and respect each other. I think you all know that the Federal Government is continuing to operate in an environment of scarce resources. I want to thank you all for the efforts that you have made to be more efficient, to contain costs as best you can. The overall budget request this year I understand is $86.5 million. That is $3 million over the current CR level, but I notice that you have implemented almost $2.2 million of savings. And that is important. Most of the increases that I see in your budget is going to fund restoration activities in the building's north and south facade. So we look forward to hearing your testimony this morning. We look forward to hearing you talk about the resources that you need to carry out your constitutional responsibilities. We would welcome any thoughts you have about the court system in general. And we want to work to make sure that the Court has the resources it needs. So we appreciate your efforts, again, to contain costs in these difficult times. And so now before I ask for your testimony, I would like to ask my ranking member, Mr. Serrano, for any comments that he might have. Mr. Serrano. Thank you so much. And good morning. I have had the privilege of having you before the subcommittee both as chairman of the committee, now as ranking member. And we didn't get to have you before us last year, so I didn't get to ask you the question that is always on my mind, which is whether someone born in Puerto Rico can serve as President of the United States. And I realize, not being a lawyer, that I probably first have to get elected so it can become an issue, and I was trying to avoid that issue. So the question is out there, if you wish during your testimony to render an opinion. I think it will be historic. And I think I got one last time, but I am not going to ask again. Thank you, Mr. Chairman. I would also like to warmly welcome you both back. As I have said in past years, this is one of the rare opportunities for our two branches to interact. Because of this, our questions sometimes range beyond strict appropriations issues affecting only the Supreme Court. As our Nation's highest court, many of us look to you for important insights into issues affecting the Federal Judiciary as a whole. That is certainly the case today. As a result of sequestration, the Federal Judiciary must implement significant budget cuts that will affect all aspects of our system of justice. Chairman Crenshaw and I recently received letters from the Administrative Office of the U.S. Courts that detail the impact of sequestration on the Federal Judiciary. To say the least, the impact is severe. Many Federal courts will be unable to operate at the same level of efficiency, and many employees may be furloughed or laid off. There will be less supervision and programming for criminal offenders, the very things that help us prevent people coming back into prison. And our court security will be lessened, even as our Federal courts continue to deal with trials that pose significant security issues. I am particularly worried about our Federal Defender program, where layoffs have occurred prior to sequestration, and show no signs of abating at this point. Additional funding reductions caused by the sequester will undoubtedly force further difficult choices, and undermine the ability of our Federal public defenders to do their utmost to help their clients. There are many concerns that we have, and these are some of the questions that we will be asking today. So we welcome you back. And it is, Chairman Crenshaw, a unique situation. This is one of those hearings that I always look forward to. And as you can see by that camera, the whole world is watching us. So we will have what I know will be a good hearing. Thank you, Mr. Chairman. Mr. Crenshaw. Thank you, Mr. Serrano. I would now like to recognize Justice Kennedy for your opening statement. And if you could keep that within the 5-minute so we will have some time for questions, and certainly submit your written copy for the record. Justice Kennedy. Thank you, Mr. Chairman, Congressman Serrano, members of the committee. Thank you very much for your--is this on? Mr. Womack. Probably not. Justice Kennedy. It is green. Is it on? Thank you. Justice Breyer joins me in bringing greetings from the Chief Justice and our colleagues. We have with us the principal statutory officers of our court. Seated in order, Jeff Minear, Counselor to the Chief Justice; Pamela Talkin, Marshal of the Court; Kevin Cline of our Budget and Personnel Office, who has worked very closely with your committee. And the communication between your committee and our budget people is extremely valuable. And Kathy Arberg, our Public Information Officer. And Gary Kemp, our Deputy Clerk. As you both indicated, Mr. Chairman and Congressman Serrano, this is an interesting constitutional dynamic here this morning. We talk often of separation of powers and checks and balances, and we use those words interchangeably. Actually, they have a different thrust. Separation of powers means that each branch of the government has powers of its own that it can exercise without--and must exercise without interference from the other branches. Checks and balances means that you can not have completely separated departments. They have to work together. And this is an example of checks and balances. We come here to indicate that as a separate branch of the government, we do think our budget request is of a high priority. Judges by nature and by tradition are very, very careful in the expenditure of the public moneys. We are good stewards of the public treasury. That does not mean that there are not instances where the Congress can point out that an expenditure might be too large or unnecessary. But over the last years, especially over the last few years, Congressman Serrano, we have been extremely careful to present you with a minimum budget. As you indicated, Mr. Chairman, the budget for the entire third branch of the government is .2 percent of the Federal budget, .2 percent. And our budget is .002 percent. Our budget, as you indicated, is $74-plus million for the operations of the Court, which we will talk about. There is an additional $11 million for buildings and grounds. And we are very proud of our budget for the operations of the Court is a 3 percent reduction over last year. In looking at the reason for that 3 percent reduction, it looks to me like that might not be one time. I am not sure we can do it for you the next time. But we are committed to try. Because we think that the courts must always set an example for prudent and proper respect for the people of the United States and for the way in which we spend their money. As you indicated, Mr. Chairman and Mr. Serrano, the Administrative Office of the Courts' budget, which is $7 billion, is of tremendous importance to the functioning of the entire judiciary. The Supreme Court has cases that the public is very interested in, but on a routine basis we are charged with ensuring that the justice system as a whole is efficient, fair, accessible. And most of our time is spent in reviewing cases that are decided in the routine course of the administration of the criminal and civil laws of this country. When the budget of $7 billion for the courts comes before you, I believe next week, it is important to bear a few things in mind. Number one, Congressman Serrano, one-seventh of that budget is for Defender Services, one-seventh of the Federal Judiciary budget is for the country. This is for the Defender Services, one-seventh of our budget. Then we have a huge amount of our budget, as you have indicated--I am talking about the entire Federal courts now, not the Supreme Court--a very substantial part of that budget is for supervised release of those who are in the criminal system and for pretrial sentencing reports. And this is absolutely urgent for the safety of society. Look, the Federal courts routinely, day in and day out, supervise more people than are in the Federal prison population. We supervise more than 200,000 criminal offenders, some of whom are very dangerous. And if the Congress thinks that because of some automatic cuts this has to be cut back, you are doing a few things. Number one, in my view, you are putting the public safety at risk. Number two, you are undercutting the ability of a separate branch of the government to perform its functions. I am sure that every agency, Mr. Chairman, that comes before you will give a special reason why you should leave their budget alone. You all have to go through this. But please consider that .2 percent of the Federal budget for an entire third branch of the constitutional government is more than reasonable. What is at stake here is the efficiency of the courts. And the courts are part of the capital infrastructure of the country. They are not only part of the constitutional structure to make the government work, they are part of the economic infrastructure and the social infrastructure. The rest of the world looks to the United States to see a judicial system that is fair, that is efficient, that is accessible. And it must have the necessary support and resources from the Congress of the United States. It is the same thing with respect to judicial compensation. The Congress has always been excellent in giving the resources that are necessary for the proper discharge of our duties. And we hope that that will continue when you hear and consider the request of the Administrative Office of the Courts next week. And with that, perhaps my colleague, Justice Breyer, has some opening remarks. Incidentally, Mr. Chairman, we are waiting for your case on the Puerto Rican Presidency to come to us---- Mr. Serrano. You mean the United States Presidency. Justice Kennedy. But you also have to be 35 years old. Have you met that requirement? It is Article II, Section 1. Mr. Serrano. I may double that soon. It may come up someday. You may get someone born over there running. But thank you for your semi-opinion. [The statement of Justice Kennedy follows:] [GRAPHIC] [TIFF OMITTED] T0953A.001 [GRAPHIC] [TIFF OMITTED] T0953A.002 [GRAPHIC] [TIFF OMITTED] T0953A.003 [GRAPHIC] [TIFF OMITTED] T0953A.004 [GRAPHIC] [TIFF OMITTED] T0953A.005 [GRAPHIC] [TIFF OMITTED] T0953A.006 Mr. Crenshaw. Justice Breyer, do you have some comments you would like to make? Justice Breyer. Mr. Chairman, I agree with my colleague, Justice Kennedy. Mr. Serrano. Well done. Justice Breyer. I can't resist adding. I mean any lawyer always asks two questions, Mr. Serrano, Ranking Member. I would like to--and your question is could someone from Puerto Rico become President of the United States. I know many possible people from Puerto Rico who could perhaps be elected, and I modestly in this room will not say exactly who, but I would point out that lawyers always ask two questions. First, why? And the answer to that legal question, isn't Puerto Rico an important part of this country? Answer, yes. Second question--I won't answer it for you--second question, why not? And when I say why not, I don't hear any answer. There we are, I have answered with two questions. Mr. Serrano. Thank you, sir. I think you just made the front page of all the papers on the island, and in New York, too. Thank you. Mr. Crenshaw. Well, maybe, Mr. Serrano, maybe you could just run for President, and if nobody challenges that, that will be fine. And if they do, then these good gentlemen will be happy---- Mr. Serrano. What is interesting, and I don't want to take much more time on this, because it becomes an issue when you have territories. But if you recall, the Senate, just to be sure, passed a resolution saying that John McCain could in fact serve as President, because he was born in the Panama Canal Zone, which technically is not part of a State, but it is a territory. And the Senate actually passed a resolution saying, yes, he can. I said, gee, I thought that would have to be the Court someday that would have to rule on that. But I am pretty sure, confident, and surely from this opinion, I mean---- Justice Breyer. No, I have not given an opinion. Mr. Serrano. I understand. I understand. You have not given an opinion, and no one here would write that. But let me just say that my exploratory committee is coming together in the next half hour. Justice Kennedy. You know, the likely explanation for the provision in Article II, Section 1, of a natural born citizen and 35 years of age, was so that we would not invite European royalty to come and be the occupant of the White House. Number one, the President had to be 35 years old so it would not be an infant with a governor. And number two, born in the United States so it would not be European royalty. That is probably the reason. I was not there at the time. Mr. Crenshaw. Well, we will get back to that issue. Let me start out questions. We talked a little bit about the financial side. And obviously, that is what our committee does is appropriate money for the various agencies that we oversee. And the one thing that you talked about, Justice Kennedy, and one thing that I would applaud that you all have done as a Supreme Court, is try to be very judicious, very efficient with the use of the taxpayers' dollars. And it is on everybody's mind now because of the issue of sequestration, which as everyone knows, is kind of a Washington word for an across the board draconian- type cuts that nobody probably thought was going to happen. It was set up to be a kind of a deterrent to make sure that Congress did its work to find additional savings. And the special committee that was set up to do that didn't find those savings. On the good side, over the past couple of years Congress has actually reduced spending. From 2010 to 2012, overall spending went down by $95 billion. And that is the first time that had happened I think since World War II. But I think one thing we all agree on, that is that if we are going to reduce spending, if we are going to make cuts to the budget, then a better way to do that is do that specifically. That is why we sit here as an Appropriations Committee. We hold hearings, we listen to testimony, we make tough choices, we set priorities, and sometimes we add money and sometimes we take away money. And regardless of how we feel about increasing or decreasing spending, we all agree I think there is a better way to do it than the so-called sequester. So we find ourselves in that situation. You are part of that. I think the reductions in the nondefense side are about 5 percent; on the defense side it is about 8 percent over the remaining 7 months. And so my question is, and I think you have answered it to a certain extent, you already, it seems to me, are working as hard as you can to make sure that you are spending money efficiently. But I have to ask you, since we have this sequester and it kicked in on March 1, can you say just from the Supreme Court side, not from the broader, we will talk to some of the other administrative courts and their issues, but just from your standpoint in the Supreme Court, what kind of impact will that sequester have on you all? Does that mean you hear less cases, or you wear your robes for an additional year or two? I mean you got to save money somewhere. Tell us, number one, how that is going to impact your operations of the Supreme Court, and number two, do you think that the sequester will, maybe as you anticipated it--it seems like you do a good job--but do you think the fact that there is a sequester and you have to live under it, maybe it is a month, maybe it is a year, maybe it is 10 years, what will that do in terms of your overall planning to try to be more efficient and more effective? Could you touch on those two things? Justice Kennedy. If it is for any long term it will be inconsistent with the constitutional obligation of the Congress to fund the courts. We do not control our workload. Cases come to us. We don't go looking for cases. In the typical year, we have close to 9,000 petitions for certiorari, many of them from those who are convicted in the Federal criminal system, and also habeas corpus from the State criminal system. We can not control that. And we can not arbitrarily say, oh, we are going to only consider 6,000 and let the other ones just go by the board. We have no choice in that. Just like a district court has no choice in deciding how many criminal prosecutions it is going to allow, or how many civil cases it is going to allow. And if you force that choice, you are saying that the courts are not open, that the legal system is not accessible. And this is inconsistent with the rule of law. Now, the Judiciary can, our staff tells us, I think for a few months get by with some temporary furloughs or shorter work days for our staff. If you can find a way to give us a shorter workday, I would most appreciate it. But over the long term, particularly for the courts as a whole, it is simply unsustainable. Mr. Crenshaw. Justice Breyer. Justice Breyer. Well, I would add this. As you saw in Justice Kennedy's figures here in his prepared statement, in fiscal year two-twelve--2012, you know, our twenty-first century is confusing for me--in 2012 we asked for a reduction of 2.8 percent in the budget. Then we went up, but not by that much, in 2013. And now we are requesting a 3.0 percent reduction. So we have been through it pretty carefully, and we have reduced. And the way we really reduced, the heart of it I think, is we hired a few people who understood those computers. And they are smart. And they worked out a way to share all this computer stuff with other agencies. And the result is we have cut our costs a lot there. So if we were going to save money by say getting rid of them, our costs would go up. They wouldn't go down. Then you say, well, what do I do? I tell my children--I used to tell my children this, now I tell the school groups. I say how do I spend my day? I spend my day, I read. I read briefs. I read them and I read them. And then my law clerks help, but I have to sit at that word processor--and it is behind my desk--and I write. Now, I am there, I read and I write. I say to my son, if you do your homework really well you will get a job where you can do homework the whole rest of your life. So that is what is going on in that building. And we have some policemen who are there for security purposes who don't just protect us, but they protect the public. And then we have to keep the courtroom reasonably clean. And if you didn't keep it clean, it is not just us again who would suffer, even the litigants. If somebody comes into a courtroom and they see a column, and that column sort of has a hole in it, and the sort of inside is falling out over the floor, what do they think about justice in the United States? Those things are symbols. They don't have to be grand--ours is--but they do have to be kept up. And so when you look around and say what are we doing--and now we have a press office. And what the press office does is it tells people to try to communicate with the public what is going on. And they answer questions that reporters have so that people can know about us. What is there to cut? We go through, we cut some travel, we saved the money, as I say, with the computers, and we have managed to cut 3 percent. I think that is pretty good, actually. And there we are. Eighty-nine hundred petitions. You know, even if you said, no, we will only hear half, which would be wrong, in my opinion, you know, you wouldn't save any money. Because we are going to read them anyway. Mr. Crenshaw. I got you. Justice Kennedy. I might just say insofar as Justice Breyer indicated public awareness of what we are doing, when we accept a case, then briefs are filed. The briefs and the transcripts of the oral argument are put on our Web site at no charge. The American Bar Association does this for us. I was looking at the statistics yesterday, and I asked my clerks to guess how many downloads, not just hits, how many downloads were there last year of Supreme Court opinions and transcripts of oral arguments? And the answer, I was astounded myself, it is just under 70 million total downloads from the Supreme Court website. That is the education function that we are performing. We have to have technical staff that can perform this function. And again, as Justice Breyer indicated, the technology is working so fast that we are hoping there are cost savings, but it seems that the price of the equipment goes up all the time really over a 4-year cycle. Justice Breyer. Justice Kennedy was just in Sacramento, they dedicated a library to him. It is fabulous. Part of the work that we do is talking to school groups, as you do. You know, you talk to the public and you try to explain to them, you know, we are trying to do our job, and you try to explain to them what the job is. And people don't know. They don't understand. And you can give the same speech over and over and over. And everybody does that who is in government, who is in public life. And you try to communicate over and over and over. And if say a third of a million, or a million, or whatever it is if that many people a day visit that Web site, I say thank you. That can do so much more than I can do in a thousand speeches. So I wouldn't like to change that. Mr. Crenshaw. I got you. Well, thank you for that. And I guess the second part of my question, would a sequester really increase your intensity to find savings? It sounds to me like you are already on that wavelength regardless of the sequester. I mean it is strange, unusual for a Federal agency to come in and actually ask for less money one year than they did the last year. And I think you should be applauded for that. And while we recognize that a sequester, an additional 5 percent cut is going to have a negative impact, we appreciate the fact that it sounds to me like you are working every day to make sure, whether it is in technology or whether it is in your Web sites, making an effort to be as efficient as you can. So we applaud that and we thank you for that. Mr. Serrano. Mr. Serrano. Thank you, Mr. Chairman. Once again, thank you for being here before us. I want to ask you two questions at once. I know you can't comment on specifics, but have you heard about the effects of sequestration on the Federal Judiciary as a whole? Do you have particular concerns about the administration of our justice system under sequestration? And secondly, we are particularly concerned about the budget cuts to our Federal Defenders. At what point are we seriously impacting the provisions of effective counsel to indigent criminal defendants by cutting our budget so much? So in general can you tell us what you think the effect will be on the courts and in particular on this particular program? Justice Kennedy. Congressman Serrano, as indicated in my remarks, the Administrative Office of the Courts and Judge Julia Gibbons, who is the chairman of the Budget Committee for the United States Courts, will be before you next week, and they will have some detailed answers on this for you. But historically, the first things that are cut when there is an across the board cut in expenditures for the courts, are pretrial sentence officers and probation officers. And this is very dangerous. Then public defenders are also on the list. I am not sure, it could be that if you cut public defender, and the indigent does not have an attorney, then the court has to appoint one and pay out of court funds for a private attorney, and it will be more. That would be a guess. I am not sure of that dynamic, but I will ask the AO. But this is serious business. We have, oh, my guess is 100,000 criminal prosecutions a year in the United States courts. And we have to have a capital structure, an infrastructure, a functioning system to handle this. You know, when I first became a judge I thought, well, at lunch we will sit down and I will ask does natural law still affect our statutory concepts? Is lex juris still a part of the concept of law? Look, the judges say, no, our workload, I have got so much workload,--Justice Breyer mentioned I was in Sacramento, the United States District Court for the Eastern District, which would be the 12th biggest State in the Nation by population, they have asked for years for extra judges. They have a weighted caseload of over 1,500 cases per judge per year. We have four senior judges who are entitled to have only a one-third workload. They take a full workload because of their sense of duty and commitment and obligation. And we simply can't take away the resources from these dedicated senior judges who work in order to show their dedication to the idea of the rule of law. The Congress must reinforce that by giving them the resources they need. Mr. Serrano. And my further question would be we know that whenever there are budget cuts--and for as long as I have been in Congress there has always been the discussion. As you well said, you know, every agency feels that their budget should not be touched. So one could argue throughout the time that the courts needed more funding. But we are living through a very difficult time, and there is a desire to cut, cut, cut. So at what point does it jeopardize the ability of our system to provide fair representation, to provide the constitutional mandate and protection? And furthermore, will that be just somebody's opinion, or at what point does the judiciary itself make some strong statements to Congress perhaps to say, look, we can't continue to do it this way. You are constitutionally here on thin ice. Can that ever happen, or will we just continue to just continue to negotiate over budgets? Justice Kennedy. Well, at some point--the courts do not have the habit of creating crises in order to obtain public attention. But at some point, if we start dismissing criminal prosecutions, this is dangerous to the rule of law. And it used to be--there is sometimes a concurrent jurisdiction, there is a crime that could be prosecuted either in the State court or the Federal court. And the old rule when you were in practice was that if it is an easy case the Feds take it, if it is a hard case we will give it to the States. But States are undergoing even more draconian cuts than are being contemplated by the Federal Government. In the State of California, I heard there was some problem in Los Angeles County--Los Angeles County is bigger than the entire Federal judiciary. And I asked my clerk, I said find out, they are going to terminate some judges. They are saying they are closing 10 Superior courts. I thought oh, well, 10 judges, that is not that many. No, 10 courthouses in order to pay for other things. And that means there are going to be more cases that will have to be tried in Federal courts. Mr. Serrano. Go ahead. Justice Breyer. Well, I was just going to add that I understand the difficulties that you are in. I think it is difficult, because everyone always says, well, what I am doing is important, and it is. But I think one question you could ask is would a cut in this particular budget, say the Federal Defenders, actually mean greater public expense? So the way that I think about it is I say of course crime exacts enormous costs. And it does not help when a serious crime is committed to punish a person who did not do it. I think everybody agrees with that. And so it is absolutely crucial to find out the person who did do it. And that is the person who should be punished. And that means a part of that is you have a judge and part of it is you have a lawyer. So if in fact that person can't get a lawyer, or a lawyer who is capable of representing him, one, you will get the wrong people convicted, and the right people will run around committing more crimes. Two, the person, if he is lucky, and gets into prison, will start realizing he can complain about inaffective assistance of counsel. And then he will start writing petitions about that. And eventually, the courts will spend more time and effort concerning his claim about inaffective assistance of counsel than it would have cost to give him a decent lawyer in the first place. And so at this moment I would say the public defenders are below the level that would be minimal. And it does really seem to me that there is a serious problem in terms of crime, in terms of justice, in terms of adding costs to the system if you can't protect the defenders. Every society has had judges. And I know we like to make fun of them. They are not popular, the judges, and we like to make fun of the lawyers, but every society has needed, since the beginning of history, people who would present a case fairly, honestly, so that the right people and not the wrong people are punished. And that is the job, in part, of the public defenders. Mr. Serrano. Thank you. Justice Kennedy. I mentioned in the opening statement the phrase ``capital infrastructure.'' Around the world, parliaments, legislators, and legislatures are somewhat reluctant to give funding to courts. They think judges have an easy job, some of them wish they had the job, and it looks like it is not that important. And when we go to other countries we say look, a functioning legal system is part of your capital infrastructure. You cannot have a dynamic economy, you cannot have prompt and fair enforcement of contracts, you cannot have a safe society unless you have a functioning legal system. It is part of the capital infrastructure. Mr. Crenshaw. Thank you, Mr. Serrano. Mr. Womack. Mr. Womack. Thank you, Mr. Chairman. And my thanks to the Justices. And I want to acknowledge their long-standing service on the bench. And having a wife that has spent 32 years in the State court as a trial court assistant, and is still there today, I truly appreciate the work that they do up and down the entire spectrum of our judicial system. And I appreciated the two questions that the lawyers always ask. They were why and why not. Well, we are appropriators, and we ask three. What? Why? And how much? Occasionally, and we are finding this to be the case these days, occasionally we add a fourth question. And that is ``what if?'' And so we are in kind of that what if scenario now. I truly appreciate the fact that there are not a lot of things that you can do without that you currently have that you desperately need in order to have an effective judicial system. And I want to drill down on one finer detail, and that is that last year there was a modest increase request for some additional officers. And I am curious if those additional resources have been put to use, what effect they are having, and indeed are they part of the what if scenario in sequestration? And what effect that would have on your Court? Justice Kennedy. We asked for half of the new officers we thought we needed, and it has worked out. One of the problems is if you hire too few people, then you have overtime, and it is not that cost-effective. But we have been able to curtail that. We will begin opening additional entrances to the courthouse, which we must, soon. And our security people will be strained. We can manage with what we have now. Under the what if scenario, as I have indicated, I think our court staff has said that, you know, for 2 or 3 months we could probably get by, but after that we have a serious problem. Justice Breyer. You are touching on another difficult question, which is where your judgment is extremely helpful, that is called security. If in fact you take, whether it is the White House, whether it is Congress, whether it is the Supreme Court, and if you have fewer marshals, policemen, you have less security. Now, less security is something that costs nothing as long as the risks don't come about. But if, in fact because you have fewer policemen and someone wandering into the building gets shot, or someone is seriously hurt, or there is some kind of incident, then you see the cost. So the question there is what risk are you prepared to run? And the people who are paid to think about that recommended that we get 24 new officers. And we got 12. So you say could you survive with no police? I guess you could survive. All you would have done is you have dramatically increased the risk, as in any public institution, of someone being hurt. Mr. Womack. Is there any difference between the level of training and the cost associated with employing security at the Supreme Court than there would be, say, in a House office or a Senate office building or the Capitol? Or are they considered to be under one sort of qualification umbrella? Justice Kennedy. I am not sure. We send our officers for initial training to Georgia for standard police training. But we also have some officers who are experts in a fairly sophisticated business of threat assessment. And that is institution-specific. Different institutions draw different threats and attract different types of security breaches. And so it is rather sophisticated. In fact, our office works with the Capitol Police very carefully on prediction and threat assessment. And they have done marvelous work for us in that regard. So there is some sophisticated assessment that is institution-specific. Mr. Womack. Justice Breyer. Justice Breyer. Our staff here says it is basically the same. Mr. Womack. Basically the same. And then finally, some cases, although they are all important, are somewhat out of sight, out of mind to the general public. Other cases are very, very high profile cases, like the Affordable Care Act decision. On occasion you have to ramp up, I am assuming, additional resources to accommodate these high profile cases. Is that a major impact on the Court? And again in the what if scenario, do we risk, in your words, do we risk creating vulnerability for some of our more high profile things? Justice Kennedy. I think insofar as standard crowd control for seating in the courtroom, we have I think over 100,000 people a year see an argument, some for just a few minutes because we have a line where you can just come in and watch for a few minutes. And we almost always have a full courtroom. Sometimes the line for the high profile cases starts early in the morning or early in the evening, and there have to be one or two extra officers there. The real risk is in the threat assessment area when the high profile cases come. That is something you don't see. Justice Breyer. That is true. And judging from the staff reaction here, there is some extra cost in those cases. But I would not start there. After all, those are the cases where emotions run high. And people are unlikely to get upset when we hear a case of whether the comma before the word ``for'' in the Internal Revenue Code section--imaginary--403(c)(6) means the next word, which was a ``for,'' should be read as a ``which'' or a ``that.'' I mean we did have a case sort of like that once. But people don't care that much, or they don't get emotionally involved. They do in some of the others. And the fact that there are large numbers of people trying to get in and so forth I think is a sign that it is important to have the crowd control in those kinds of cases. Mr. Womack. Once again let me reiterate my thanks to you for your service on the bench. I have a whole list of a lot of really tough legal questions, but my colleague here from Kansas is going to ask most of those questions, I am confident, and I am going to allow him that opportunity. Thank you, Mr. Chairman. Mr. Crenshaw. Thank you. Mr. Quigley. Mr. Quigley. Thank you, Mr. Chairman. I, too, want to thank the Justices for their service. There is sort of a built in reflex when you practice as long as I did of ``may it please the Court'' and wait to get asked questions that are making me sweat. But it is 10 years, 26 in California and Chicago as a criminal defense attorney, highest conviction rate in the county. But that is usually funnier in Chicago. One of the things you talked about, both Justices did, was communicating with the public. And it is an issue we struggle with at the State level, and that is televising the proceedings. Now, there is a video--I mean there is an audio of the Supreme Court, but it gets to your point. One of you mentioned the public doesn't necessarily know how things work. Clearly, the public's trust in almost all government institutions is at an all time low. The perhaps way overused expression from I think 1916 from Justice Brandeis about Sunshine being the best disinfectant, is that issue still possible to televise the proceedings of the Court? Justice Kennedy. We take the position--my position is, and I think a number of the other Justices--that we are a teaching institution, and we teach by not having the television there, because we teach that we are judged by what we write, the reasons that we give. Now, you could have an Oxford-style debate if you were in college, and if you drew the side that said you want cameras in the courtroom you could make a number of very important points. Number one, as you indicated, Congressman, we are in the business of teaching. Not everybody can see an oral argument. It is a great civics lesson. For the attorney who is going to appear for the first time, it would be invaluable to have some tapes to see how the oral arguments work. You can't get exactly the dynamic from the oral transcripts. So if you were making debate points you could score a tremendous number of points by taking the affirmative position that we should have cameras in the courtroom. It is not an unreasonable position. We feel, number one, that our institution works. And in my own view, there would be considerable reluctance to introduce a dynamic where I would have the instinct that one of my colleagues asked a question because we are on television. I just don't want that insidious dynamic to intervene between me and my colleagues when we have only half an hour for each case. So we think that in our courtroom that cameras would be inconsistent with the tradition of oral argument of the Court that we have. I say we, I think I speak for a majority of the Justices and myself. Sometimes in trial courts the cameras are good so the public can see when the system is broken, when it is not functioning. That is important. That is important. And one of the things we are facing is with newspapers facing critical financial problems, they are laying off court reporters, that is to say press reporters who go into the courtrooms, police court reporters. And this is very--this is a real check, because you need an experienced reporter to know if that judge is being irascible and unfair or just necessarily stern with an attorney. You have to have an experienced reporter to understand that. And the blogs won't take care of it. Blogs can fill in for what a lot of newspapers do, they can't fill in for this. So it may be that cameras in courtrooms are more important, and not less, when experienced police reporters are not paid by the press to do the job they historically did. Mr. Quigley. Justice, I have seen a lot of theatrics in courtrooms, and some of it begat, I suppose, from TV cameras or an attorney advertising. And in all my life I can't imagine the Supreme Court acting in a way other than that which they normally would whether there is cameras there or not. But I respect your point. Justice Breyer. Justice Breyer. It is quite a difficult question, and I get asked a lot. When I think of a case, remember the Arkansas case, which was whether you could have term limits in the House. It was could you limit term limits. And my goodness, that was a difficult case. You see Jefferson, you read he said one thing. And Hamilton and Madison said another thing. And Story said another thing. And you go back into history and it is really evenly balanced. And if a million people could have seen that oral argument, I thought that was one of the best oral arguments you had. You would have seen nine people really struggling with a very, very hard issue, and trying to reach the correct result. So that would be so educational, that would be wonderful. So that is the plus side. So you say, well, why are you hesitant? And I absolutely begin where Justice Kennedy does: we are a very conservative institution with a small C. We are there as trustees. It was going before we came, it will be there after we go. And the last thing any one of us wants to do is to do something that will make it worse as an institution. So what is the relevance of that? Well, I sometimes worry on a subject you will know better than I do, we are a symbol. If we bring the cameras into the courtroom it will be in every criminal court in the country. You want it in every criminal court in every case? What about juries? What about witnesses? What about intimidation? I worry about that, but there I say you are the expert, I am not. Then I think, well, you know, the oral argument is only about 2 percent. It is not oral argument that matters in a case. It matters in a few cases, yes, and it helps always. But that is not what this is turning on. That is an appellate court argument. You have been in appellate courts, you understand it. And I am trying to decide a matter of law which will affect 200 million people who are not in that room. But when you look at something on television, as opposed to reading about it in the newspaper, you identify. Human beings identify with other people. There is the good one, there is the bad one. And then they get the quotes, and believe me there is the good one and there is the bad one. And, and so I think that is not what I am here to do. And so will people get a wrong impression? But if you want to know, I have come to the conclusion, and I might be wrong, what I think is the really driving force on the negative side is this. The people who you would find surprising, I won't say who they are, they come to me and they say be careful. You think it won't affect you, your questioning. You think it won't. I mean we have the press there every day, but believe me, if I am onto something with a lawyer I don't care. I might produce the most ridiculous example that I have ever thought of because I think it is going to advance me with that lawyer, that is I am going to get a question out of him, I am going to get an answer, and I don't care if I look a little bit stupid in the newspaper. I would rather get the answer. Okay. So that is my method. And what they say to me is you think you won't change. The first time you see on prime time television somebody taking a picture of you and really using it in a way that you think is completely unfair and misses your point in order to caricature what you are trying to do because they don't believe in the side they think you are coming from, the first time you see that, the next day you will watch a lot more carefully what you say. Now, that is what is worrying me. So you say, well, so what, what is your action? And I say I am not ready yet. I mean I want to see a little bit more of how all this works in practice. I would give people the power to experiment. I would try to get studies not paid for by the press of how this is working in California, of how it affects public attitudes about the law. I would write some real objective studies. I know that is a bore. But that is where I am at the moment. Mr. Quigley. Thank you. Mr. Chairman, I am going to yield back. But I would like the Justices to contemplate something I thought about last night when I was thinking of asking you this question. When the movie Mr. Smith Goes to Washington was released, Members of the U.S. Senate didn't want it to happen because they thought it made them look bad. At the same time, the representatives in the Soviet Union didn't want the movie shown there because they thought it made us look so good. I think there is a beauty in the history of the Supreme Court and what takes place there. And I think about what it would mean if generations to come could watch the arguments that took place in Brown v. Board of Education, or Gideon, extraordinary moments that changed history and made our country a better place. Watching at least 2 percent of part of that I think is very, very important. And I think what you do is absolutely critical. I think there is a beauty to our system that is unparalleled in the world. And I would like my kids to watch it. Thank you. Mr. Crenshaw. I can remember as a young lawyer watching the oral arguments in the Charlotte-Mecklenburg, the famous bussing case. And that is still vivid in my mind. That would be great to have the video, to play that from time to time. That was probably 30, 45 years ago. Anyway, thank you. Mr. Yoder. Mr. Yoder. Thank you, Mr. Chairman. Justices, it is my honor to have you all here today. Certainly I appreciate your noting the conversations you have around the world about the rule of law and how important it is to have an independent judiciary. And part of our role is to make sure that the resources are there so that you can do your job effectively to sustain the rule of law in this country. So thank you for the work that you do in that regard, and you are not just another Federal agency that is here to ask for some programming dollars. You are a third branch of government, or maybe the first branch of government in your eyes, whichever it maybe be. I don't know that they are ranked or not. But you are a co equal branch of government, and we have a responsibility to make sure that the resources are there necessary to ensure that the laws that we create here are upheld in a fair and judicious manner. So thank you for that. As a young attorney and University of Kansas law grad, I always want to put in a good plug. And to the extent I know, Justice Kennedy, you had KU grads on your staff there, I am not sure, Justice Breyer, if you had, but if not it is a good time to think about it. Always good to have a good Jayhawk on your team. I wanted to talk a little bit about the allocation of resources beyond just the Supreme Court, and if you might help us in that regard. I did note in your testimony that only 1 percent of the entire Judiciary's budget is the Supreme Court. So the other 99 percent, and the large bulk of the expenses and the challenges that we have and the things we have in our own Federal courts, making sure that they are fully properly funded, and that they don't have backlogs is an important component of what we are all trying to do here. I note some courts have heavier caseloads than others. We have particular courts that are continually having too heavy a caseload, and they are having a struggle to be able to resolve that. We discussed this a little bit a couple of years ago when you were here, and I wanted to return to this topic again. As we are looking at the sequester and as we are looking at certain things that are going to affect how the judiciary handles their resources, are there fundamental changes we could make--or maybe fundamental is not the word--are there structural changes that could be made either in the amount of jurisdictions or the amount of different courts that we have in a way that maybe we have some courts that have less resources than more? How do those decisions get made in terms of how we would go forward on that? And are there structural changes, not just looking at technology, not just looking at, you know, finding ways to reduce staffing where we have to. But are there things that we could look at structurally that might make the judicial system more efficient and could work better on less dollars? Justice Kennedy. That is such a difficult question I am tempted to give it to Justice Breyer first. To begin with, as you have indicated, the courts, depending on their location, have different caseloads. Our courts along the southern border are simply swamped with immigration cases for the obvious reason. Our judges are very good. One of the benefits of the Federal judicial system is that we can take Article III judges from all over the country and assign them. And our judges are very good about doing that. But inter-circuit assignments does not quite solve the problem. I think sometimes that you can take a look to see if laws are producing litigation that is not necessary, that is very expensive. The whole question of tort reform is something that the States ought to look at. California has done it rather successfully in the medical area. So you can look at the substance of the laws that you pass and look at the litigation impact that those laws would have. Justice Breyer. Well, I have a couple of ideas, but I will suggest one that I have thought about a little bit, and the other I won't suggest because I haven't really thought it through. But the first one that used to be of interest to me when I was chief judge of the 1st Circuit, which was more administrative, is there has always been tension and a problem between GSA and the courts, because the courts have to pay GSA rent. You see? And the executive branch doesn't pay for court services. I mean the judiciary provides all the services to the executive branch they want for free. But why then do the courts pay for the services the executive branch gives to them? Now, I am certain some work can be done there. And I am certain that if you could separate those two things out--I am not certain, but I think it might help in respect to having a more rational allocation of what tends to be a large share of the court budget. And I have a few other ideas, but probably sometimes I have a good idea and it is surrounded by 10 rather bad ones. So I think I will stop. Mr. Yoder. I was hoping you could give an example of some sort of--maybe an absurd example like you were discussing earlier that we could capture on camera here and they could play later on the evening news. This would be your one chance to do that. Justice Kennedy, I might follow up on your point which I hadn't really raised but is a good point, are there particular items that are generating a large amount of litigation that we could discern through some sort of analysis or report that the judiciary could provide? How would we go about finding out where those pressure points are? Justice Kennedy. I think we have good statistics in the district courts and the circuit courts on the numbers of cases that a specific law has introduced. One reason our civil case log, our civil case docket is down in the United States Supreme Court is new statutes that Congress passes produces litigation. And there haven't been many major statutes--last year the health care statute is one, but that takes a long time to come up to us. The Bankruptcy Reform Act was, oh, more than 10 years ago, has produced cases. New statutes passed by the Congress generate cases. Dodd-Frank and the other securities act, the financial cases have not seemed to produce much. But those cases are beginning to work their way through the system. Justice Breyer. I will add one thing which might be useful: you are triggering some memories, and the problem doesn't change very much over 30 or 40 years. It is more pressing now, but it has been around a long time. And there were two things, one I went to and the other I read, years ago, that I thought were very useful in this respect. One, Chief Justice Burger used to have Williamsburg conferences where he would invite Members of Congress, their staffs, as well as judges to discuss all kinds of issues of interest to the judiciary, of less interest to Congress, but some were interested. And one year it was this subject, exactly this subject of how could you make the judiciary more efficient. And people had a range of papers, very interesting. All sorts of ideas in that. And I think that it would be perhaps interesting for you to read, or your staffs to read. The other was Lee Campbell, who is a judge in the 1st Circuit, was on a commission or head of the commission called The Judiciary of the Future or something, and that was probably 20 years ago, in the 1980s sometime. And they were considering different ways of restructuring or other reforms if the judiciary continued to grow in its caseload. And so I think in that you will find a variety of rather interesting ideas of what to do as the input increases you don't want to diminish the output, but you want to have a more efficient way of getting to the same output, of letting it go up proportionately. Justice Kennedy. The judiciary has found that if a judge-- in a civil case--gets into the litigation early and has settlement conferences and attempts mediation and so forth, that you can reduce the caseload and maybe come to a settlement that the parties think is efficient. That is costly for the judge. It takes a lot of time for the judge. And if per chance the case is not settled, a lot of that effort has been wasted. One of the things we are finding is that the major civil litigation in the United States is being taken out of the Federal judicial system and going into arbitration. And it is a matter of great concern that this judicial system, which so many of us have devoted our lives and careers, is not seen as the fairest, most efficient, most effective way to resolve disputes. And it is not. But that is in part because of the substantive laws that make it risky for major defendants to go into the litigation system. Many, many lawyers tell me we will tell our clients we think you have a very good case, we think that you should prevail, you can't take the risk. And there is something wrong with that. Justice Breyer. You may know, Judge Gibbons is going to talk about this next week. The Judicial Conference is now studying cost containment and structuring and making an effort to achieve an objective of cost containment through structuring. And she is going to discuss that with you. Mr. Yoder. Maybe I will try to read those documents between now and next week that you suggested. Hopefully they are thin reading. Thank you for that. I appreciate all the ideas. And I guess, Justice Kennedy, the notion that big statutory changes create the opportunity for litigation, whether it is bankruptcy or Dodd-Frank or health care, so certainly as there is gridlock in Washington, D.C., that is, I guess, an aid to the courts in that we are not getting some of those big acts right now. So you can send us a thank you card on that. With that, Mr. Chairman, I yield back. Thank you. Mr. Crenshaw. Thank you. We have been joined by the ranking member of the full Appropriations Committee, Ms. Nita Lowey. And I would like to welcome her and ask her if she has any questions she would like to pose. Mrs. Lowey. I do, Mr. Chairman. And unfortunately or fortunately, one of the responsibilities is to go to almost all the Appropriations hearings. So I apologize that I am delayed. And I just want to say that it is such an honor for me to have Justices Kennedy and Breyer here before us today. My husband, as you know, Justice Breyer, has been practicing law for over 55 years. And he has never had the honor of asking you questions. So I don't know if he is watching C-SPAN, but believe me I am going to tell him about this. So I thank you very, very much. And I really appreciate your dedication to our country and the court. We are honored. Justice Breyer. Thank you. Mrs. Lowey. Now, just one question and then one comment. If the sequester were to continue, the Federal judiciary would see a reduction, as you know, of approximately $350 million. Chief Justice Roberts recently noted that a significant and prolonged shortfall in judicial funding would inevitably result in the delay or denial of justice for the people the courts serve. I am very concerned that bankruptcy proceedings, civil cases, will be delayed, that U.S. attorneys will not have the resources to prosecute important cases, and that when some criminal cases go to trial delays could infringe on a defendant's right to a speedy trial, potentially allowing the wrong people to walk free. A simple question. Are you concerned that the sequester could ultimately infringe on a party's right to a speedy trial or other elements of due process? Justice Kennedy. I could adopt your really carefully thought out question as my answer. Mrs. Lowey. Thank you. Justice Kennedy. All of the risks, all of the potentials, all of the concerns that we have about long-term sequestration are encapsulated in your question. Yes, trials would be delayed. Yes, bankruptcies would be delayed. Remember, bankruptcies are a way for businesses to start over. This is cost efficient. One of the signers of the Constitution went bankrupt. This is an old problem. And bankruptcy judges, some of the hardest working judges in our system, and they have to know a tremendous amount of law. They have to know bankruptcy law, they have to know State law, they have to know community property law, they have to know tort law, they have to know all of our law. They have tremendous workloads. But they keep this economy going. And if you slow that down, if you slow down civil dispositions where contracts are waiting to be enforced, whether a plant is going to be built and so forth, whether damages are going to be paid to someone who was the victim of a breach of contract, if you are going to potentially cause dismissal of suits because--of criminal suits, criminal prosecutions because of delay, then you are threatening the efficiency of the legal structure. And if you have an inefficient legal structure then the economy does not recover properly. Justice Breyer. Yes. I agree. It is a question of how long, how much. Mrs. Lowey. Thank you very much. And then I just have one other comment that I want to share with you. This month you will hear cases that are of the utmost importance to many American families, that is whether gay Americans have the same constitutional rights to marry as straight couples, and whether Congress can deprive legally married gay couples of Federal recognition and benefits. I mention this not because I expect either of you to speak to this issue. In fact, I know you will not. President Bill Clinton, who signed DOMA into law and now requests its demise, recently wrote, the question of these cases rests on, quote, ``Whether it is consistent with the principles of a Nation that honors freedom, equality, and justice above all, and is therefore unconstitutional,'' end quote. In the time that has passed since 1996, my views, along with President Clinton and Obama's and many of my colleagues, the country's, the face and makeup of our families have all changed for what I think is for the better. Those of us in Congress, regardless of religion or party, represent human beings in loving relationships who wish to have the rights granted to those of us sitting on this podium today. I cannot in good conscience tell my constituents that their country does not value their bond, their commitment, or their family. I ask you just to consider my words, and thank you again. It is a privilege to have you before us today. Thank you. Mr. Crenshaw. Thank you, Mrs. Lowey. We have got a little bit of time. And I wanted to ask, as a second round of questions, a couple of appropriations questions. I mentioned earlier, and I think in your remarks, $3 million of your request this year of the $86.5 million was for some operations, I guess maintenance, preservation. As I go by the Supreme Court, I guess is that the West Front that looks like you are working on it? And then the East Front, and I understand there is the request for some money to fix up the I guess it would be the north and the south. Maybe you can just tell me a little bit about what is going on I guess I would call it the front and the back, and what is next in terms of the facade. I guess the Architect of the Capitol makes that decision. When I was chairman of the Leg. Branch Subcommittee we funded his office, and he had a long list in terms of priorities of what needed to be done. We can't always afford to do everything. But I assume that that moved up on his list, and that is why it is in your request. Could you talk briefly about that? Justice Kennedy. What is happening is, and this was not predicted, at least we did not know about it, is the marble on the Court, because of moisture, because of flaking, because of exposure to the elements is beginning to come off. And it is actually life-threatening. Some big chunks of marble have actually dropped down. So that scaffold that you see will move all around the building. And it will take a couple years to finish. They have what they call a scrim, which is what they use in ballet productions and dramatic productions in theaters, which is a screen canvas that is porous to light but yet there is a painting on it. So what you are looking at is not really the Supreme Court, it is a picture of the Supreme Court. It is absolutely fascinating. And it kind of reminds me of the allegory of Plato's cave. I don't know if I am in the cave or out of the cave. I see these shadows. So we are going to have to put up with this. But this was not optional unless the building is to be torn down. Mr. Crenshaw. Do you have to finish the work that you are doing now on the east and the west before you start moving around the building to do the---- Justice Kennedy. I don't know exactly. My understanding is it is going to be done in quadrants, and they will finish the front before they do the sides. The front is the most dangerous part because that is where it was actually falling. Mr. Crenshaw. I got you. And then that $3 million was the number given to do the next part, the east front. Justice Kennedy. We understand that that is for the total, that is for the total cost of going all the way around the building. Justice Breyer. Staff says the east and west has been funded. Mr. Crenshaw. Got you. Justice Breyer. Now the additional is for the north and south. Mr. Crenshaw. Got you. While I am talking about that, when you go by the Supreme Court you see a big hole that is next to the Supreme Court. Is that something you all are working on or is that somebody else? Justice Kennedy. That is going to be a vegetable garden so that we can reduce costs. Actually, it is part of the landscaping. We had to tear it up in order to make the subterranean addition for the improvement that was done some years ago. Justice Breyer. This is the Architect of the Capitol. And he understands it and creates the budget. Mr. Crenshaw. I got you. One other question. In 2013, it is my understanding that there was a million dollar request made for some police radio funding. And as I understand it, the committee didn't provide that million dollars. Do you know whether the police radios were upgraded or acquired? And if so, where did the money come from? Anybody know? Justice Kennedy. We will have to get back to you on that. [The information follows:] The Supreme Court has not found a source of funding for this upgrade, which is still needed. The current Motorola VHF radio infrastructure, which has been in place for 10 years, is about to reach end-of-life and will no longer be supported after 2015. Upgrading to the next generation of radio equipment would allow the SCUS Police to fully utilize technology advancements made in portable and mobile subscribers. Additionally, the upgraded system would leverage a hosted Motorola Key Management Facility that the Supreme Court has access to via Memorandum of Agreement with another federal agency. This access eliminates the need to install a one million dollar Key Management Facility, as well as procuring the manpower required to administer the system. Justice Breyer. Staff says it wasn't us. Mr. Crenshaw. Okay. It wasn't you. Maybe it is the Architect of the Capitol again. Thank you for that. Mr. Serrano, do you have other questions? Mr. Serrano. Yes, I do very briefly, Mr. Chairman. But first I would like to sort of bend a little bit of the protocol of the subcommittee to say from where we sit it has been wonderful to see, and you can't see this, the number of young people that have spent time this morning watching this hearing. They have been in the back. They have been in and out. But large groups have stayed for a long time. And, you know, I am always interested, as we all are, in how they see our system, how they see our country, and what they want to do about it in the future in terms of their involvement and their opinions. And so to have two of the branches here discussing the vegetable garden and other issues, but the whole idea is something that we can be proud of today that we were able to be here. Let me ask you a question. As in past years, I continue to be interested in seeing an increase in the number of minorities selected for Supreme Court clerkships. I know that there has been an initiative in place at the Federal judiciary to help recruit more minorities into clerkship positions. Do you think these efforts are starting to bear fruit at the district and appellate levels? And also, a joint question, as you speak at commencements, and law school seminars, and court competitions and other things that you do with young people, is it part of the message to encourage some folks to apply for these positions? Justice Kennedy. I taught night law school for many years, and have been teaching in Europe for 25 years. And Justice Breyer, of course, was a regular member of the faculty. I am sure that all of our colleagues encourage young people to apply for clerkships. I used to tell applicants for a clerkship when I was a Court of Appeals judge, they would come and say that they wanted to be with me for a year. I would say I just have to tell you, truth in advertising, you would learn a lot more if you were with the district court. District courts have to do everything we do, they have to write opinions, they have to research cases, plus they try cases. You can really learn a tremendous lot. They say, oh, no, I want to be with you. I said, I know, I know, I understand. If you have a clerk who has been with the district court, they really have a respect for the record and a respect for the evidentiary process that young people that have been just in the appellate system sometimes need training. And so I really encourage clerks to start with the district courts. It is simply wonderful. One of the advantages of being a United States Judge is you have these young people, we have them for just 1 year, but you know the secret of youth is youth, and if you are surrounded by young people it gives you new perspectives, new insights, new energies. Mr. Serrano. Great. Justice Breyer. I have had quite a few minority clerks, a lot, actually. And the question is has there been a change over time in that? And it has been an improvement in the sense that I haven't had to look as hard. And, you know, you have had to do a lot of encouragement. You had to make a little effort 15 years ago. You know, you can apply, and please, and so forth. I would say the extent to which it requires an effort is improved, less in other words, but it still does require something of an effort. Less than it did. But I think consciousness is important. And so I think it is good to encourage people, that is right, at these different levels. And you will see, you know, you are not doing anybody a favor, you will see the effort pays off. And it is worthwhile. Mr. Serrano. I have one last question, Mr. Chairman. And that is the issue that we have discussed before about applying the Code of Judicial Conduct to the Supreme Court. We know right now it applies to other judges, for the Court it applies as an advisory situation. Different thoughts in the past. Have the thoughts changed on that whole issue of applying the Judicial Conduct? Justice Kennedy. I have never had a problem with it because in my own professional career, and I am absolutely confident in the career and the manner in which my colleagues conduct themselves, we consider those guidelines absolutely binding. The problem is those guidelines can and should be made by members of the relevant judicial committee of district judges and circuit judges. And we think it is potentially difficult for circuit judges to make rules that are binding on us. That is the binding part. As a matter of following those precepts, we follow those precepts. I think Justice Breyer, as I recall the last time we were here, explained very well that there are some differences. Recusals. If there is any reason at all for a district judge or a Court of Appeals judge to recuse himself or herself, they will do that. But on our Court, if we recuse without absolutely finding it necessary to do so, then you might have a 4-4 Court, and everybody's time is wasted. Justice Breyer. That doesn't mean it is different guidelines. I have in my office the seven volumes. And they are all in nice leather. And if there is a recusal problem I, like the other members of the Court, go right to those seven volumes and look it up. And we each have a system in case we can't figure out what the answer is. And I call some ethics professors. There is one I call particularly. And I ask what is your interpretation? What should I do? Okay. So I see no difference right now between the Supreme Court and the rest of the courts in terms of the binding nature. If you go pass a law about it, it raises questions. So that is, you know, people love to argue those kinds of questions. Who has the right to do what? I tend to think don't raise unnecessary questions. And I don't see any necessity now. And the differences that come about are just what Justice Kennedy said. And you don't want to be manipulated by somebody off of a case. So you are careful about sitting, as well as not sitting. Mr. Serrano. Well, I thank you for your answer. And I have no further questions. I thank you for your testimony today, and thank you for your almost opinion on my case. It will be fine. And we continue, certainly, and I know the chairman shares this view, or I share it with him, our role is to strengthen the judiciary, to make sure that even during these difficult times the whole system is able to do what it has to do on behalf of our communities and on behalf of our democracy. You know, what was beautiful about those young people being here today seeing these two branches speak to each other is the fact that we have a system that allows that and a system where we can ask questions and get answers and continue to function. And sometimes I think we forget that. We celebrate people in other countries going through revolutions, but we never wonder what it is that they want. And I suspect that in many cases what they want is exactly what we have, or something very similar to it. And I celebrate that today as I speak to you. Thank you. Justice Kennedy. Thank you. Mr. Crenshaw. Thank you, Mr. Serrano. And maybe before you go, as an aside, the last time that I was on this committee, I guess a couple of years ago, and we were sitting around chatting, and Justice Breyer, you won't remember, but as a young law student I can remember there was a case--I can't remember the name of the case--and I always thought it was Marbury v. Madison, but the statement in the case was that I have always remembered, basically it said versatility of circumstance often mocks a natural desire for definitiveness. And I always thought that was interesting, well said. I am not sure exactly what it means. It is kind of Supreme Court-ese. I think it means maybe you got to be flexible. But when I asked Justice Breyer if he remembered maybe what case, his response was, well, just go Google it, which I did, and it didn't come up. So Justice Kennedy, you weren't here that day. Does that ring a bell? Can you cite a case that that sounds like it may have come from? Justice Kennedy. It does not sound like John Marshall. John Marshall used to see how many lines or couplets of Pope he could remember, he could memorize. And he had over 600. And that affected his writing style, because Pope has a balance and so forth. Lincoln and Churchill shared something in common, they both read very few books, but they read them again and again. Lincoln because he didn't have any, so he read the Bible and Shakespeare again and again. And Robert Burns. And Churchill by choice. He thought that you should read good books again and again. But not too many books. So he read Gibbons, the Decline and Fall. And if you read Churchillian prose, it is Gibbons. And the quote you gave is sufficiently baffling that I think it might come from Cardozo, but it doesn't---- Mr. Crenshaw. I am going to keep looking. Justice Breyer. I tell you who it reminds me of, I think it is a good point both for legislators and judges I think. 1584, Montaigne. Fabulous essay on human experience. Now he talks about law. And he says, Justinian got really angry at his judges, or some Roman emperor, I don't know. And he said, I am going to fix those judges. What I am going to do is I am going to pass a code that is so complicated and so detailed that they will then have to follow what the code says, and they won't be able to substitute their own judgment. And Montaigne says, you know what, he was really stupid, he says, because what he doesn't understand is every word in a statute is just meat for the lawyers. The more words you have, the more arguments you have. The more arguments you have, the more the judges can do anything they want. And he said that is the worst possible thing. And he says I would rather live in a country with no laws than a country with too many laws like France. That is what he says. 1584. And he says, by the way, the reason is just what you said. The reason is because human experience is such that when you try to draw lines, experience overflows the boundaries. And what we discover is circumstances come up that we never thought of. So you have to keep a little flexibility. I think that is the point. And I love remembering that as a judge. And when I used to work in the Senate, I don't know if I knew it then; I must have read it sometime. I worked on the staff there, and I thought it is pretty good for legislators or staff members. Mr. Crenshaw. Great. We have been joined by Mario Diaz- Balart, a member of the subcommittee. Do you have any questions you would like to pose? Mr. Diaz-Balart. No. Mr. Chairman, I want to apologize. I was in another hearing right now. I apologize I got here so late. Good to see you gentlemen. Mr. Crenshaw. These are busy times for all the members. Mr. Serrano. Mr. Chairman, I just want to state that I feel a little left out not being a lawyer in some of these conversations. But I did play a judge on Law and Order once. So I don't know, maybe I just skipped that part of, went right to the judgeship. Mr. Crenshaw. Well, it is not all that bad. But again, we do thank you for being here today, for your willingness to come and testify. And it is one of the I think most interesting hearings that we have, to see the exchange between what is a very, very important branch of our government, and that we can have this kind of dialogue. So thank you very much again. We appreciate it. This meeting is adjourned. Monday, March 18, 2013. DISTRICT OF COLUMBIA COURTS AND COURT SERVICES AND OFFENDER SUPERVISION AGENCY OF THE DISTRICT OF COLUMBIA WITNESSES HON. ERIC T. WASHINGTON, CHIEF JUDGE, DISTRICT OF COLUMBIA COURT OF APPEALS HON. LEE F. SATTERFIELD, CHIEF JUDGE, SUPERIOR COURT OF THE DISTRICT OF COLUMBIA NANCY M. WARE, DIRECTOR, COURT SERVICES AND OFFENDER SUPERVISION AGENCY CLIFFORD KEENAN, DIRECTOR, PRETRIAL SERVICES AGENCY, COURT SERVICES AND OFFENDER SUPERVISION AGENCY Mr. Crenshaw. It is 3 o'clock so we will start the hearing. I got off an airplane 9 minutes ago. Mr. Serrano is still on a train. So he will be here very shortly. But we will start the hearing. So I want to welcome everybody. Today the hearing is on the District of Columbia Courts and the Court Services and Offender Supervision Agency, better known as CSOSA. Similar to how a state government funds a state court system, the National Capital Revitalization and Self- Government Improvement Act of 1997 made these agencies the responsibility of the Federal Government. So the budgets of these agencies are not considered by the Mayor or the D.C. Council, but instead are proposed and transmitted with the President's budget request. Three-quarters of the Federal funding this subcommittee provides for D.C. is for these important agencies that serve and protect the citizens of the District of Columbia. Today I would like to welcome Chief Judge Washington of the Court of Appeals, Chief Judge Satterfield of the Superior Court and Director Nancy Ware of the Court Services and Offender Supervision Agency, CSOSA. Thank you all for being here today and testifying. We all know that an independent judiciary is something that all the citizens can trust and respect, and that is essential to our Nation, to our democracy and to the rule of law. And equally important is each citizen's right to a fair trial in any legal dispute. The D.C. court system does an incredible job of ensuring this for their citizens. The Moultrie Courthouse sees about 10,000 visitors a day. In addition, CSOSA has a huge caseload of its own, supervising over 25,000 offenders annually. We are all interested in hearing from you and the impact sequestration is having on your operations. As I said before, operating the government under continuing resolutions and sequestration is not the right way to do it, and I think Congress should be funding quality programs well and reducing or eliminating wasteful programs, and I know Mr. Serrano and Mr. Quigley and all the members of this subcommittee agree with me that we want to get back to regular order in fiscal year 2014. Although the crime rates in D.C. have dropped within the past few years, we are still faced with dangers that all big cities are challenged with. These agencies are absolutely critical in protecting those who work, live and visit our Nation's capital. We appreciate your hard work and look forward to hearing your testimony. So I would now like to recognize Mr. Serrano, but he is on a train, so in his good stead I would like to recognize Mr. Quigley for any opening comments he might have. Mr. Quigley. Mr. Chairman, thank you. I thank you for holding this hearing and I want to thank our distinguished panel for being here. I feel at this point since I am so new to this committee and the subcommittee, that anything I could add at this moment would pale in comparison to the ranking member's thoughts, so we will wait for his arrival for that. I look forward to listening to this panel and asking them questions. Mr. Crenshaw. Thank you, Mr. Quigley. We all know Mr. Serrano is apt to make an opening statement anywhere any time, so we look forward to his arrival. I would like to now recognize Chief Judge Washington of the D.C. Court of Appeals for an opening statement. If you could limit your remarks to about 5 minutes, that would give us more time for questions. Your full statement will be included in the record. Judge Washington. Thank you. Good afternoon, Mr. Chairman, Congressman Quigley and, of course, to the ranking member Mr. Serrano who I am sure will be here, and Congressman Womack and the rest of the subcommittee. My name is Eric Washington. I am the Chair of the Joint Committee on Judicial Administration in the District of Columbia and the Chief Judge of the District of Columbia Court of Appeals. I have the pleasure of serving in those roles along with my colleague who is accompanying me here today, Lee F. Satterfield, the Chief Judge of the Superior Court of the District of Columbia. We thank you for having us here this afternoon and appreciate this opportunity in the absence of a budget submission to update you on key aspects of the work of the D.C. Courts. Earlier this month the court introduced to our employees our third 5-year strategic plan entitled ``Open to All, Trusted by All, Justice for All.'' The title is also our vision for serving the public in the District of Columbia. The Courts' strategic plan provides the framework for our budget submission, our Court's operations through division level management action plans, what we call MAPs, and our employee performance plans. All court initiatives must support the goals and objectives of our strategic plan in order to get the support of the Joint Committee. In support of the plan's first goal, the one that is critical to what we do for the citizens of the District of Columbia, fair and timely case resolution. The Court of Appeals has been working over the past several years to enhance the timely resolution of its cases. According to statistics compiled by the National Center for State Courts, the D.C. Court of Appeals has the highest caseload per capita of any jurisdiction in the country and, despite our relatively small population, the second highest number of case filings of any jurisdiction without an intermediate court of appeals. We appreciate the support of Congress and the President for a new case management system and additional law clerks to help us in this effort to expedite case processing. The new technology helps the court manage its large caseload and connect to the Superior Court case management system from which we are now able to obtain the trial records electronically. This has increased efficiency and the court has revised its internal operating procedures to better take advantage of this increased efficiency by designating the trial court record as the record on appeal. We are pleased to report that these efforts have begun to show results. The Court of Appeals has steadily reduced its median time on appeal from a high of 505 days in 2007 to less than a year, 352 days, in 2012. But more work remains to be done and we are committed to using the resources you provide to us to increase even more the efficiency of our case processing. In the Superior Court, our trial court we resolved more than 102,000 cases last year and have the Nation's second- highest per capita incoming civil caseload. Courtwide performance measures have been adopted to address case processing activities, court operations and performance. As part of our efforts in this regard, a multi-year business intelligence initiative was established to enhance performance analysis, reporting and public accountability. That is important because through that business initiative we are able to get snapshots through an integrated view of our processes and of our performance, and then make decisions in a more timely fashion about how to better use our resources to address the needs which are being reflected in any particular year. We have done a lot in the access to justice area, primarily we have established a number of self-help centers. Those self- help centers are in areas where we have seen a large increase in litigants without lawyers, unrepresented individuals who need help. You can imagine where those areas are. They are in small claims. They are in consumer areas, they are in areas of landlord-tenant and foreclosure. We have established calendars and specialized courts in order to address them. We have established self-help centers connected to those calendars where we have volunteer lawyers from the bar, Legal Aid, and other volunteer organizations who come in and help to provide free access to legal services to assist litigants in getting through the process and getting into court. Once they are in court, we have taken steps to amend our judicial Code of Conduct to make clear and further clarify how judges can interact with unrepresented litigants in a way that will allow the court to effectively hear the issues that they wish to bring forward while at the same time making sure that judicial actions are not seen as anything but as being fair and impartial, thus not promoting one side over the other. So we have taken those steps in comments and in amendments to our rules. Our workforce, of course, is incredibly important to us and we have undertaken an initiative called Building a Great Place to Work. A lot of that is based on Federal Viewpoint Survey results that we have received after administering that survey which, of course, is administered in all the Federal agencies. That survey showed that we had some real strengths, but it also showed that we could improve in a number of areas. The areas where we wanted to improve were wellness, work- life balance and internal communications, and we have taken steps in all of those areas to try to improve the quality of the life of our employees, because we understand that only by having motivated, well-positioned and also well-educated staff are we going to be able to meet the needs of the community we serve. So, we have taken the effort not only to address the needs of our employees through these programs, but through your auspices and your help we have been able to re-energize and actually automate and develop our Human Resources Division. We now can track applicant flow, so that we can hire the best people that are available and willing to work for us. We also have managed to implement a web-based electronic personnel file that employees can access from their desktop, so they are more aware of what is in their personnel files. Employees know what is required of them through their MAPs, which I mentioned, and through their performance evaluations which are tied to our strategic plan, so there is a lot of continuity throughout the organization and a recognition of what we need to do to become an even better court system. Infrastructure-wise we have renovated and retrofitted three buildings that were built in the 1930s to be effective courthouses in this century and hopefully for the next 20 to 30 years. I am not including the Historic Courthouse, the Court of Appeals, which, of course, was renovated a few years ago and is a model court building, I think, and one we are quite proud of. In addition to renovating those buildings, we have taken steps to move and consolidate Family Court operations within the Moultrie Courthouse, which is now our big priority. We have a master facilities plan which we developed 10 years ago to project what our space needs would be. We have been faithful to that plan in terms of developing our space and our infrastructure. Now as we have received funding for both design and beginning of construction of new space, we are about to begin construction of an addition increasing the space of our main trial courthouse, the Moultrie Courthouse, which sits on C Street right across from the Newseum, in case that is helpful to you. In addition, court security is a big issue for us because, as you know, there have been courthouse shootings across the country, Delaware most recently. We have U.S. Marshals that provide judicial security and criminal courtroom security, and they move prisoners. We have contractual employees, security personnel who are at our front doors. We have enhanced our access through an automatic card system that limits the places some of our employees can go and enhances their opportunity to make it to the areas where they are needed. Through that process we have increased security and enhanced it, but we have had a recent study done by the Marshals Service and they have indicated that we have to do more. We need more contract court personnel because we have gone from the Moultrie Courthouse as our primary courthouse back on to our campus with five buildings in Judiciary Square. One of the key aspects of our strategic plan, the one we have just released, deals with the public's trust and confidence, very, very important to us. We have transparency as one our values. We have a number of values. But the public trust and confidence is also the ability to provide services for the citizens of District of Columbia while maintaining the public safety. We do that in a number of ways, most notably I think for your purposes because you have seen this as we have developed it, we have opened new community-based probation drop-in centers, we call them BARJ's. They are restorative justice centers to serve young men in three of four quadrants of the District of Columbia. Thanks to the support of Congress we are about to open our fourth, and this one is focusing on young girls and we think it is critical. With respect to the impact of sequestration, I can tell you that it will have a tremendous negative impact on our operations. In the long term when we are looking at our strategic objectives, this sequestration, if it lasts too long and if our budgets stay flat or are cut more dramatically, in the long term it will affect our service to the public because we are such a personal services organization. We have 10,000 people a day who come through our doors. They come to our courthouses and make their case filings, to seek protective orders and receive services that are fundamental to our mission. For that reason, we need to make sure that our workforce stays robust. And as I said, we are doing what we can internally, but we will need some help. We have absorbed those reductions by hiring freezes, not filling positions, keeping vacancies, cutting contractual services in non-case processing ways. With respect to our capital budget we are delaying contracts. With respect to our CJA budget, our Criminal Justice Act budget, we have implemented staggered calendars, reduced attorney waiting time, and we have taken other measures such as, for appropriate cases, instituting sort of flat fee payments which don't necessarily capture all the time that the lawyers are putting in, but they are accepting of those payments for different stages of the litigation. In conclusion, Mr. Chairman, the Courts remain dedicated to the fair administration of justice for the people who live, work, do business and visit the Nation's capital, and we are equally committed to being responsible stewards of the public's money. Chief Judge Satterfield and I appreciate this opportunity to appear before you and look forward to answering any questions that you or the members of the subcommittee have for us. Thank you. [The statement of Judge Washington follows:] [GRAPHIC] [TIFF OMITTED] T0953A.007 [GRAPHIC] [TIFF OMITTED] T0953A.008 [GRAPHIC] [TIFF OMITTED] T0953A.009 [GRAPHIC] [TIFF OMITTED] T0953A.010 [GRAPHIC] [TIFF OMITTED] T0953A.011 [GRAPHIC] [TIFF OMITTED] T0953A.012 [GRAPHIC] [TIFF OMITTED] T0953A.013 [GRAPHIC] [TIFF OMITTED] T0953A.014 [GRAPHIC] [TIFF OMITTED] T0953A.015 [GRAPHIC] [TIFF OMITTED] T0953A.016 Mr. Crenshaw. Thank you very much, Judge. I now turn to Director Ware. Ms. Ware. Good afternoon, Chairman Crenshaw, Congressman Womack, Ranking Member Serrano, Congressman Quigley and other members of the subcommittee. I am pleased to appear before you today to discuss the Court Services and Offender's Supervision Agency, better known as CSOSA, which includes the Community Supervision Program, and you will hear me refer to it as CSP, and Pretrial Services Agency, PSA, for the District of Columbia. Since fiscal year 2010, CSOSA's overall budget has remained essentially flat while costs to operate our supervision and public safety programs have continued to rise, effectively reducing our budget every year for the past 3 years. In fiscal year 2010, CSOSA, including both CSP and Pretrial, received an aggregate appropriation of $212.9 million. Of that amount, $153.5 million was designated for the Community Supervision Program and $59.4 million for Pretrial Services. Currently, CSOSA is operating under a continuing resolution that sets our funding at the fiscal year 2012 enacted level. The recent sequestration order that went into effect on March 1st, 2013, resulted in nearly $11 million being cut from CSOSA's budget which, as I mentioned, had already been frozen at the fiscal year 2012 level. As of September 30, 2012, CSP supervised a total of 15,599 offenders on any given day, and over the course of the fiscal year, as you mentioned, we are responsible for the supervision of 24,000 different offenders, many of whom face significant challenges. Those with special needs, which comprise approximately 32 percent of our total offender population, are supervised by specialized supervision units, including mental health, sex offender and domestic violence supervision teams. These characteristics guide us in determining the appropriate intervention and supervision strategies needed to improve their chances of successfully completing supervision and becoming productive members of the community. However, I must underscore that recent funding cuts and continual budget uncertainty pose significant risk to the success that our agency has previously achieved. The Community Supervision Program's updated fiscal year 2013 sequester funding basis is $145 million, which is approximately $7.7 million less than our 2012 enacted funding level of $153 million. CSP intends to continue targeting these reduced resources towards the highest risk and highest need offenders under our supervision through evidence-based programs and through any supports that we can provide them. However, CSOSA is a small agency and therefore does not have the funds available in general areas such as training, travel, employee awards, administration and information technology with which to absorb this level of reduction. CSP will now have to cancel and/or reduce contracts for offender treatment, housing and other reentry services by an additional $3 million and implement a hiring freeze and furlough all of our employees for a total of 6 workdays. Such reductions are certain to have a significant and possibly immediate ripple effect on area public safety and our D.C. law enforcement partners. In conducting our public safety oriented mission, CSP employs four operational strategies: Effective offender risk and needs assessment, close supervision, treatment and support services, and partnerships. Even in light of our budgetary challenges, CSP recognizes the importance of implementing several program initiatives in response to emerging criminal justice trends such as the changes in offender population demographics and the proliferation of synthetic drugs, which you may have heard of. These new programming initiatives are being accomplished through reallocation and consolidation of existing resources and in accordance with our updated fiscal year 2011 through 2016 strategic plan. It is also important to note that CSP is proud of the various mission-related accomplishments and advancements we were able to achieve in recent years through collaboration with our area criminal justice and law enforcement partners, nonprofits, faith-based institutions, social service providers and employers. I will now turn to the Pretrial Services Agency for the District of Columbia. Similarly, the Pretrial Services Agency has initiated several steps in fiscal year 2013 to absorb the impact of the continuing resolution and sequestration. These include reducing its contracted drug treatment services, imposing a limited hiring freeze and making reductions in information technology, training and forensic laboratory expenses. PSA also plans to furlough employees a total of 6 workdays beginning in April. The Pretrial Services Agency provides effective assessment and placement into clinically appropriate sanctioned based treatment programs for substance abusing and addicted defendants to enhance community safety and achieve cost savings through community-based supervision in lieu of incarceration. In fiscal year 2012, the Pretrial Services Agency placed nearly 900 defendants in sanction-based residential and outpatient services. Pretrial also successfully implemented several research based improvements to the Drug Court and the agencies' in-house treatment program. These improvements are designed to enhance the quality of clinical services and to align them more fully with evidence-based treatment practices. Many criminal defendants have mental health issues severe enough to affect their ability to appear in court and to remain arrest-free. In 2012, the Pretrial Services Agency managed 2,600 such defendants in its specialized supervision unit, better known as SSU. SSU provides close supervision of defendants and makes referrals to community-based mental health services. Most of these defendants also need substance abuse treatment. Our specialized supervision unit arranges for these services once the mental health condition is stabilized. Drug testing services are integral to the judicial process and to public safety in the District of Columbia. The Pretrial Services Agency Office of Forensic Toxicology Services processes urine specimens for CSOSA and Pretrial and tracks drug abuse trends within the local defendant and offender populations. In fiscal year 2012, the Office of Forensic Toxicology conducted 3 million drug tests on 478,000 samples from persons on pretrial release, probation, parole and supervised release as well as for juveniles and adults with matters pending in the D.C. Family Court. In closing, while CSP and Pretrial have made great strides in providing comprehensive supervision services and treatment for offenders and defendants in Washington, D.C., recent reductions in resources and ongoing budget uncertainty present a host of challenges for the agency and it also threatens our ability to continue realizing these successes. Thank you for the opportunity to share my testimony, and I would be pleased to answer any questions that you may have. [The statement of Ms. Ware follows:] [GRAPHIC] [TIFF OMITTED] T0953A.017 [GRAPHIC] [TIFF OMITTED] T0953A.018 [GRAPHIC] [TIFF OMITTED] T0953A.019 [GRAPHIC] [TIFF OMITTED] T0953A.020 [GRAPHIC] [TIFF OMITTED] T0953A.021 [GRAPHIC] [TIFF OMITTED] T0953A.022 [GRAPHIC] [TIFF OMITTED] T0953A.023 [GRAPHIC] [TIFF OMITTED] T0953A.024 [GRAPHIC] [TIFF OMITTED] T0953A.025 [GRAPHIC] [TIFF OMITTED] T0953A.026 [GRAPHIC] [TIFF OMITTED] T0953A.027 [GRAPHIC] [TIFF OMITTED] T0953A.028 [GRAPHIC] [TIFF OMITTED] T0953A.029 [GRAPHIC] [TIFF OMITTED] T0953A.030 [GRAPHIC] [TIFF OMITTED] T0953A.031 [GRAPHIC] [TIFF OMITTED] T0953A.032 [GRAPHIC] [TIFF OMITTED] T0953A.033 [GRAPHIC] [TIFF OMITTED] T0953A.034 Mr. Crenshaw. Well, thank you all both very much. We will start some questions. I see Mr. Serrano has arrived and I am sure he will have a question and maybe have a statement. Mr. Serrano, would you like to---- Mr. Serrano. Thank you, Mr. Chairman. I would like to make a brief opening statement. First of all, I apologize for being late. The Acela is on time 99.9999 percent of the time, and that is true, but not today. It must be something done in Boston by those Red Sox fans or something. Thank you, Mr. Chairman. I would also like you want to welcome Judge Eric Washington, Judge Lee Satterfield and Director Nancy Ware. To the judges I thank you for once again appearing before this subcommittee. For Director Ware, welcome and congratulations on taking over this challenging job which has such a large impact on our community. I once again look forward to hearing your views on the current challenges facing the D.C. Courts and CSOSA. In my view, the largest issue facing your agencies, and indeed the Federal Government today, is the impact of the sequester. Your written testimony details a number of steps that the D.C. Courts and CSOSA will be taking to minimize their impact, but undoubtedly they will have an impact that will not be positive. I hope you will be able to share your thoughts about the effect of the sequester on your ability to ensure justice in an efficient manner as well as vital supervision and rehabilitation services. I would also like to hear if you have any belief that there will be an impact on public safety from these damaging cuts. I had hoped not to ask these sorts of questions today, but unfortunately we have not been able to work out a compromise that will help maintain the levels of services that Americans expect of their government. In any event, I thank you for your service, I look forward to your testimony, and thank you, Mr. Chairman. Mr. Crenshaw. Thank you, Mr. Serrano. Let's start by talking a little bit more about sequestration, because I think that is on everybody's mind and you all touched in your opening statements on the impact that it is going to have on you all, and I think everybody on this committee agrees that that is not the best way to reduce spending. You ought to prioritize issues and some need more money, and things that aren't working, then you can reduce spending. But it sounds to me like you all have thought this through. Some agencies we talk to seem to have planned for the sequestration and they will have different impacts on different people. Some agencies seem to have not really planned on it. When I read that the Secret Service, their plan to deal with sequestration was to close the White House to visitors, I am not sure. It makes me wonder how early they started thinking about their plan. But I appreciate the fact that it appears that you have thought about that. Talk a little bit more about the impact it is going to have, but also talk about what is meant in terms of going through this exercise, are there things that you have learned that you may not have learned otherwise unless this had happened to find some good in these difficult situations, that maybe there are some things that you can do that are more efficient, more effective. Can you touch on that? As well as maybe elaborate some, because Mr. Serrano wasn't here, but you talked a little bit about the impact it is going to have, and also any positives that you have found ways to actually be more sufficient. I will start with you, Judge. Judge Washington. Thank you, Mr. Chairman. I think that, and I hope I didn't rush through it too quickly, the impact that the sequester is having on us is that we have had to cut significant contractual services. We have tried to keep them in areas that are non-case processing. They range from contractual services that involve rodent control and other issues of maintenance for our facilities to, of course, a hiring freeze that we have implemented more recently. But before that we were holding vacancies open. It wasn't an official freeze, but we weren't filling them all because we anticipated, having been on this continuing resolution for a number of years and seeing the cliff potential, we anticipated what might be happening. So we were able to absorb some of the reductions, in addition to the cutting of contractual services and the hiring freeze, through vacancies. What we did to try to address that issue is we engaged in a very aggressive cross-training program, which is a stopgap measure at best because we have 10,000 people come to our courthouse every day, 500 prisoners who come every day to our courthouse, and you can only move people around and have them cover for short periods of time. In the long run, and this is what I meant when I said while we are able to absorb some of the cuts now, in the long run they are going to impact us more greatly because we won't be able to provide the same level of service to the public that the public has come to expect and certainly, we believe, deserves. One of the other areas that we have been fairly, I think innovative, as you suggest, Mr. Chairman, is that over the past few years we have tried to make changes to our Criminal Justice Act program in order to control costs. Chief Judge Satterfield has done a magnificent job of working with his presiding judges to create staggered calendars and other sorts of efficiencies that have reduced waiting time which is, of course, a big expense to have lawyers sitting around waiting to have their cases heard or resolved. The Superior Court has also instituted in the Criminal Justice Act process in conjunction with lawyers practicing under our Criminal Justice Act, standards which when met are compensated at a certain level. So we are able to better forecast what our expenditures are and to make adjustments if necessary without compromising either the legal services that are being provided by the lawyers or the amount that you have appropriated for our fund. So there are some actions we have taken to become more efficient in our court operations. Some of the other advances that we have made in our ability to, for example, get a new case management system in the Court of Appeals that allows us to talk and interact and integrate with the Superior Court case management system has also eliminated the need for a lot of paper. It is now electronic, which has reduced some of the needs for our employees that we have now redeployed into other areas. So we are trying to work within the constraints that have been imposed upon us. But, as I said, we are so heavily operationally tied to having people meeting those individuals who come to the courthouse, we have not yet got the kind of population, despite our advances in electronic technology, where we are apart from the community. We are very much integrated within that community and people come to our courthouse every day in droves to seek the kinds of justice and support that they need. So to the extent that our personnel are affected and impacted long-term, it could have a very negative impact on our ability to provide the kinds of services that I think you and certainly the Courts want us to provide. Mr. Crenshaw. Thank you. Director Ware. Ms. Ware. Yes. I am going to invite Mr. Cliff Keenan, who is the newly appointed Director of the Pretrial Services Agency, to join me to speak to the impact on the Pretrial Services under CSOSA. I will speak specifically to the Community Supervision Program. We are finding that the sequestration has been quite a lesson learned for us in many ways, but not always very constructively, unfortunately. We are finding that we have to face hiring freezes, as other agencies have mentioned, and reallocation of our resources towards our highest risk offenders. Now, you might say that this is a good lesson learned because we now realize that the few resources that we have will have to go mostly to our riskiest offenders. So in order for us to maintain our focus on our mission, we are focusing more of those resources on our highest risk clients, which means that we will be placing low risk offenders on new innovations like kiosks. Under kiosk reporting, offenders don't have to report to a supervision officer every single day, they go in and they use a hand reader which is a biometric scan in order to report. And as long as they are maintaining their supervision conditions for employment, staying drug free and maintaining their appointments with the kiosk, then we can maintain them on this kind of technology. But those who are medium risk and maximum and intensive risk are the ones we are most concerned about. So we want to be sure that we provide them the level of supervision that they require, as well as the level of support that they require. For these we are finding that we are having to cut our treatment dollars, and mentoring programs which have been very successful. Additionally, we are supplanting as much as we can through partnerships with universities, potentially looking at using students to come in and help us with some of the treatment requirements. We don't know how successful this will be because it requires a very high level of expertise. We also have a lot of special initiatives that we have conducted with our law enforcement partners like the Metropolitan Police Department's (MPD) All Hands on Deck Project. They help us with our accountability tours when we go out to do offender home visits and those kinds of things. With the sequestration, we are probably going to have to cut back on a lot of the things that we have done traditionally in the evenings with our staff and with other law enforcement partners, due to our inability to pay staff overtime. So there are positive lessons learned in terms of reallocation of resources, but there are also very negative lessons learned in terms of the potential impact the sequester may have on the recidivism rate for this population, which we have done very well with over the last 10 years. Also diminishing the return on how well we have done with making sure that people graduate out of supervision and do well with their monitoring so that we are able to terminate them from supervision. We have had very good success in this regard over the past 10 years and we are hoping that that doesn't get compromised by the sequestration. I will turn it over to Mr. Keenan. Mr. Keenan. Thank you, Director Ware, and Chairman, good afternoon, Ranking Member Serrano, Congressman Quigley, Congressman Womack. Again, I am Clifford Keenan. I am the Director of the Pretrial Services Agency which is an independent entity within the Court Services and Offender Supervision Agency. As everybody has already alluded to, dealing with the sequestration from a law enforcement agency perspective is challenging because there is a balance that needs to be struck between making sure that we are doing what we are appropriated to do, but also that we are paying attention to the community safety and from our perspective to the needs of the court. Everything that we do in pretrial is based upon an order received by a judge to a defendant who is released pending trial. Everybody who has been arrested pending trial is presumed to be innocent so we don't have the same authority or autonomy to deal with them as CSOSA does with their probation or parolee population. We too believe that in addition to strong effective supervision, that providing pro-social interventions such as substance abuse treatment services as well as mental health treatment will go a long way to keeping a person from reentering the criminal justice system. So we too are looking at contract treatment reductions. We are reducing by 50 percent, which means that almost half a million dollars of money that we would otherwise be providing for substance abuse treatment for the defendant population will not be spent. We will bring that population in house and our own trained staff to be providing some of the group sessions that they should be receiving. We are also engaging in a limited hiring freeze. We are not going to be able to hire all of the positions that we are currently authorized to hire pending the sequestration. We are also taking reductions in IT, our training, as well as our laboratory costs. But I think most importantly from our staff perspective, the same as CSOSA, we are taking a 6-day furlough for all 365 of our staff. We worked very closely with our union in terms of trying to implement this in a fair and consistent way, and what we agreed upon was that everybody, from me down to the newest program assistant, would be taking 4 hours per pay period over the course of the 6 months in order to get up to that 6-day furlough. It was not extremely palatable on the part of some of our staff, but they understand that there are very few choices that any of us have in this. So under the circumstances, we do think that we are doing the best we can in terms of balancing our obligations both for community safety and the court needs as well as doing what we can with the dollars that we have. Mr. Crenshaw. Thank you very much. Mr. Serrano. Mr. Serrano. Thank you, Mr. Chairman. Director Ware, you made a strong statement about the effect sequestration will have on public safety. I do not disagree. Can you tell us how the reductions in your budget, particularly the furloughs you will have to implement for staff, will affect safety in the Nation's capital? Ms. Ware. Yes. Thank you very much. Well, one of the things that CSOSA prides itself on is how well we have really done with putting in place best practices in the area of probation and parole supervision. As a result, we have been able to reduce the recidivism rate over the past 10 years. Additionally, the ability of folks to be able to complete supervision successfully has been increased. Our partnerships with our law enforcement partners such as the courts, the Metropolitan Police Department, the U.S. Attorney's Office and others, including the U.S. Parole Commission, have been very successful in addressing the highest risk offenders in the District of Columbia. We have implemented a number of tools, including the use of GPS, which is global positioning system, to monitor offenders and serve as a sanction tool for those offenders who are under our supervision. All of those things that we have been able to put in place over the years have really benefited the District of Columbia, the visitors here, as well as those people who work here and live here. However, we are really concerned right now because we are slowly seeing some shifts in the recidivism rate among our offender population and we are concerned that this shift, which is very small right now, may increase to the extent that we will have to look at other ways to sanction those under our supervision more. This may mean that they will continue to go back to prison rather than us being able to maintain them effectively in the community and help them to become stabilized and to become productive citizens again. Mr. Serrano. You said earlier that you reduced the number over the last 10 years you said, but now you see a shift recently? Ms. Ware. We are starting to see a slow shift going upward from 2010, yes. Mr. Serrano. So you are concerned that these cuts will just add to that. Ms. Ware. Yes. 2010 was when we started seeing our budget flattening, and so we are concerned and we are watching and tracking it very carefully to try to use every innovation that is at our disposal. We want to utilize all the tools that we can come up with within the resource allocation that we have in order to make sure that the positive trends that we have been able to implement over the last decade, will not be reversed. Mr. Serrano. Right. As you know, we not only deal with the impact of the sequester, but we also have the issue of a 2013 continuing resolution for the remainder of the year. Are there any recommendations or policy changes that you would like for the committee members to consider that may help your agency mitigate the impacts of both of these areas? Ms. Ware. Absolutely. One of the things that we would like the committee to consider is to afford CSOSA the opportunity to retrieve 50 percent of its end of the year unspent funding, which is often very difficult for us under a continuing resolution. It means that we don't have a full budget year to spend the money that we need to be able to spend in order to meet the goals that we placed on our agency. So part of our request would be to allow us to retrieve 50 percent of the funds that are unspent at the end of each fiscal year. I think we submitted that as a request. Mr. Serrano. Before you spoke about your working relationship with the courts and with other groups. How about the working relationship with the community college to assist offenders with furthering education skills? Maybe the judges can speak to that too, if there is any relationship that we need to know about or something that needs to be better. Ms. Ware. Well, we definitely would like to improve it. We had a very good working relationship with the community college here in the District of Columbia, UDC. The issue that came before us was the cost of tuition for our offenders, and so we would have to look at ways to assist them in coming up with the requisite costs even though it is not the same level of funding required for them to enroll in the community college. Nevertheless, they still have to come up with some level of funding in order to participate, and at one time we were able to supplement that, but now we are not able to do that as well. Mr. Serrano. All right. Is there a relationship between the court and the community college, or is that strictly something that they deal with? Ms. Ware. It is probably on our side. Judge Washington. Yes, it is more on the CSOSA side than the court side. Of course, we remain open to any discussions or conversations about how we can assist them and they can assist us. But we have not had any formal conversations about that. Mr. Serrano. All right. Thank you, Mr. Chairman. Mr. Crenshaw. Thank you, Mr. Serrano. Mr. Womack. Mr. Womack. A couple of questions for the judge. One of those would be I noticed in your testimony that the median time on appeals has been reduced from 500 days, thereabouts, whatever the number was, down to about 352. That is still the better part of a year. That is a long time. I am a big believer that justice delayed is justice denied. So why is there still a lengthy process there? Judge Washington. That is a very complicated question, but I appreciate it, Congressman. We have in the District of Columbia, as you know, no intermediate court of appeals, which means that all of the cases that are decided in the Superior Court, and you heard the numbers, have direct appeal rights to the Court of Appeals, except for small claims cases where they have to file an application for an allowance of appeal. We still have to decide that. But still, it is not as cumbersome a process. We are unlike all of the other court systems in the country that have only two levels, no intermediate court of appeals. Their jurisdiction is almost 95 percent discretionary, so even though they don't have an intermediate court of appeals, they can decide how many cases to hear and they dismiss the others by denying the appeal. We, as a matter of right, have jurisdiction over all of these cases and we have prided ourselves on giving reasons for every decision that we reach. So even in those cases that are ultimately dismissed or remanded with an order, we tend to include information advising the litigants as to why their case has been denied or dismissed, not a one word ``dismissed'' or ``denied'' or ``affirmed'' depending on the perspective as it comes to us or after we are finished with it. So what happens is our cases go through a process which is necessary for us to get the information, the record--which has now been sped up through our case management system--and briefing from the lawyers, and it is the sheer numbers. Last year we had over 2,000 appeals filed in our court, and whenever you have that number, it is just going to take time. It is just part of the process. It reminds me that in 1980 the Congress actually passed a bill creating an intermediate court of appeals, recognizing that handling that many appeals as a matter of right and giving reasoned decisions, reasoned opinions for each of our decisions, was a burden that was unlike many courts in the country. It didn't pass the Senate. But the bottom line is we are trying to implement efficiencies to make up for the lack of that opportunity to have error correcting done by a mid-level court, and then for us just to look at the larger constitutional and other issues which face the citizens of the District of Columbia. So that is the larger overriding picture. It doesn't mean we can't do better at case processing. We are making every effort to do that. We have implemented any number of reforms. We have screened cases differently and are aggressively using senior judges more than we have in the past. We asked a couple of years ago for an appropriation for appellate mediators. We don't have an appellate mediation program that is ongoing. We have piloted two different ones trying to do it without resources, ultimately figuring that we could not continue to model a haphazard kind of ad hoc program and actually make it effective, to try to take some cases that may be amenable to mediation out of the calendar, thus giving us the opportunity to get to more cases. So we are making efforts to reduce the time. I don't disagree with you. We would all love for the time on appeal to drop even lower, and we will continue to make changes. Mr. Womack. Percentage breakdown on criminal versus civil on the docket, what are you looking at? Judge Washington. Criminal cases make up probably 60 percent of our caseload. Civil cases, family cases, make up the other 40. It may even be 55-45. Mr. Womack. And you mentioned the small claims. What is your threshold amount for filing small claims? Judge Washington. Threshold amount for small claims. $5,000 dollars, I believe. Mr. Womack. Is that adequate? It sounds a little low for this area. Judge Washington. You know, the---- Mr. Womack. Lawyers would probably disagree with me. Judge Washington. I have to admit, Congressman, I haven't given it much thought. I don't know if it has been part of any discussion that Chief Judge Satterfield may have had, but I will defer to him on that question. Judge Satterfield. Thank you. It is a low amount and we are getting inquiries from lawyers who want us to raise that amount to be more consistent with some of the other jurisdictions in the metropolitan area. That is something that we look at over time and it is something that helps us move things along faster. It is a consideration. Mr. Womack. And I know I am going to run out of time here in just a minute, I am curious on both sides, both on CSOSA and on the court side, nowhere in the testimony did I hear what we are doing in this multi-cultural setting that we find our ourselves, and from Arkansas it is pretty profound there, on translation services, and that is costing a substantially large amount more money every year for the individuals that are coming through our court system that English is not a primary language. So speak to me on what we are doing as far as translation goes and the pending costs of it. Judge Satterfield. Well, I don't have the exact cost figure, but I know that we are doing a tremendous amount of activity in that area because we provide that resource to anyone that needs it so that we don't have any due process violation. Mr. Womack. How many linguist services do you have to have available? Judge Satterfield. I am sorry? Mr. Womack. How many different linguist services do you have to have? How many different languages? Judge Satterfield. Well, there are five that are predominant in our demographics, but there are many, many more. We are fortunate here in the District to be able to provide interpretation to just about anyone because the State Department is here. We are able to find certified, trained interpreters who want to do it. And we are starting to access things like interpreter services electronically in order to provide that service. Because we are federally funded, we are required by executive order to make sure that we provide it to anybody in need. Even for the Donald Trumps of the world, we have to provide it. If he came in here and said I want you to pay for my interpreter, we would have to make sure that that is done if it is going to impact that case because---- Mr. Womack. Well, sometimes he speaks in a language I don't understand too. Judge Satterfield. But he's just an example. Some folks have the ability to afford it and some folks do not. I am sorry, I have just been handed a number. The total number in 2012 is 8,719 times we had to send interpreters to a courtroom to interpret in a particular case. Mr. Womack. Ms. Ware. Ms. Ware. On CSOSA's side we pride ourselves with being a very diverse workforce. We have done that intentionally so that we can attract folks from various backgrounds into the workforce so that they can serve not only as our community supervision officers and in other capacities, but also so that they can provide a well-rounded approach to supervision to folks from different backgrounds. That being said, of course, we don't have every single cultural and ethnic group on our workforce, but we do have a Diversity Council that has been put in place that both Cliff and I are the co-chairs of so that we can promote diversity across the workforce. We also have an online service that provides interpretation for folks who come before us or come before our agency who need special interpretation services, but I don't have the cost for that right now. I will have to get back to you on the cost of that. But that is pretty much how we approach it. [The information follows:] [GRAPHIC] [TIFF OMITTED] T0953A.035 Mr. Womack. A couple of final questions and then I will yield back. You mentioned GPS. I am assuming ankle monitors, you do some type of ankle monitoring? Ms. Ware. Yes, we do. Mr. Womack. Okay. Drug courts? Ms. Ware. Yes. Mr. Womack. Effectively? Mr. Keenan. We believe it to be effective, yes. We did a study last year and we made some changes to the program. We have reinstituted or I guess reinvigorated the staffing which is common throughout drug courts where the defense attorney, the judge, the defendant and the pretrial service officer get together in order to identify problems. The court itself I believe is going to be doing an assessment this year of the Drug Court Program as well. But ours is one of the longest standing drug courts. Mr. Womack. My experience has been that those are very effective alternatives to the type of jurisprudence that we see in our traditional court system. Mr. Chairman, I would just say that given the effects of sequester on top of the effects of the economy and a lot of other things that drive our crime rate higher, that the manifestation of mental illness and the manifestation of drug dependency causes so many other problems across the spectrum, and I would just hope that these folks and others like them can do whatever it takes to address some of those underlying issues so that they don't manifest themselves in a lot of other extraordinary ways that do rise to some very violent type outcomes. With that, I appreciate the panel today. I don't envy your work, and thank you so much for your time and your testimony today, and I yield back. Mr. Crenshaw. Thank you, Mr. Womack. I now turn to Mr. Quigley. Mr. Quigley. Thank you, Mr. Chairman. I thank the panel as well. Judge Washington, my experience at 26th and California is that a downturn in the economy at the same time as cuts in budgeting for courts is a potent and dangerous combination. In Cook County we had more people get in trouble paying their bills, credit card bills, their rent, their mortgages, and at the same time that combination is fewer of them could afford an attorney to help them deal with those issues. Obviously on the criminal side we tended to see an up-tick in criminal activity and again more people in need of the public defender's office. Is this a similar issue here? Judge Washington. Congressman Quigley, it is. We see such an increase, and I spoke about it very quickly when I was talking about self-represented litigants, pro se litigants on the civil side. We have so many more people. We have had a 30 percent increase in the last couple of years in those individuals who are using our Family Court resource center, for example. The landlord-tenant resource center numbers are huge. Thousands and thousands of people are going through our self- help centers. Now, of course, with foreclosures, we have a calendar that has been established in the Superior Court. I probably should let Chief Judge Satterfield talk more about it, but a calendar in the Superior Court that is focused on those kinds of cases. We have a consumer law self-help center. What we have done is we have decided that the best thing we can do in this era of diminishing budgets and resources is increase our collaboration with legal service providers, voluntary pro bono lawyers from the bar and others who have stepped up and have helped us by manning those centers that we are establishing close to or within court facilities. We can provide the infrastructure, the space, the tables, maybe some telephones, things like that, but, of course, we can't provide the legal services. We look to our bar to do that. And we have increased the number of opportunities for pro se litigants to come in and at least get some assistance from lawyers who can get them started. One of the other things that we did in this area is that we, as I said, recently amended our Code of Judicial Conduct because judges were reluctant to take on the role because they were concerned about how it could be viewed. What we did was thought it through and came up with ways, suggestions, of how judges can better hear self-represented litigants, give them an opportunity to be heard. Mr. Quigley. If I could ask how that is working, because I can see the other side complaining that the judges are interjecting themselves into the process and perhaps advocating or strategizing. Judge Washington. No, we are very careful about that. We gave very specific examples of the types of things that can be done. A lot of it is referring litigants to other places, but also it is just explaining court processes, demystifying how the court system works. Not the substantive areas, not offering them suggestions on defenses, for example, but saying this is what is required when you come to court. This is the kind of thing that we need to hear in order to resolve the case fairly. We are very concerned and remain concerned about the judges, and we have had a lot of training. But I will let Chief Judge Satterfield also answer that. Judge Satterfield. I just wanted to add something because I think you hit it that the attorneys would be concerned. Our bar in D.C. has asked us to do more in that area, because the amount of time it took to get through some of those cases with self-represented people were backing up their ability to represent their clients and costing their clients more money because of the waiting that they had to do as we took our time obviously to make sure there was adequate process and access. So they have worked with us on things that could be said and done and how to work with self-represented litigants to be efficient and fair and move forward. So they have not been critical of us. They have actually worked with us in trying to improve that area. Mr. Quigley. On the criminal side, who can speak to the increase in perhaps cases, but also the need for public defender activity? Judge Satterfield. Well, we are very pleased with the public defender service that we have. We think they are very top notch and they do a good job and they take most of the serious cases. We are fortunate to have funding through Congress, obviously, for the remainder of the defender services that are necessary. Crime has sort of remained steady for a while. The thing about that is you never know when something is going to be the next thing. It was crack cocaine here in the nineties and so forth. Now, as the country is starting to look at synthetic drugs and things of that nature, we don't know how that will impact our communities until it really gets to our communities. Mr. Quigley. What is the percentage of cases with public defenders? Is that funded in the same manner? Is sequestration affecting that? Judge Satterfield. Yes. They were absorbed in CSOSA's budget. It was an odd kind of arrangement. But they are affected by the sequestration. What I have been told by the Director of the Public Defender Service is that she is going to do what she can to make sure that all of her clients are represented in court fairly and competently. So I don't know quite the impact that is going to have. I know she is reworking things, like we have done, contracts and other things, to try to reduce any furloughing that she would have to do, but I don't know the specifics of her plan. Ms. Ware. The Public Defender Service has a separate line item budget and so they are responsible for handling the sequestration just as we all are. It is my understanding that all of us are affected similarly in terms of trying to manage the sequestration. But as Chief Judge Satterfield said, that is something that you would probably need to sit down with the Public Defender Service to discuss, because they have a separate budget that they handle and we don't have any control over their budget. Mr. Quigley. Thank you, Mr. Chairman. I yield back. Mr. Crenshaw. Thank you. Mr. Diaz-Balart, do you have any questions? Mr. Diaz-Balart. No, thank you, Mr. Chairman. Mr. Crenshaw. Thank you. A couple more questions. We have a little more time. I wanted to ask you, Judge, you mentioned in your opening statement about some of the capital improvements you are making, and I know we provide about $40 million a year for capital improvements, and as I understand it you have a master plan. So I would like to hear a little bit about that, about how you decide what the priorities are in terms of capital improvements. Do you do that internally, or does somebody come in and help you assess all your capital needs? Explain how you make those priority decisions. How is that working out? Is there a timeline or a total cost line? Just kind of share with us that master plan for capital improvements. Judge Washington. Okay. We developed a master space plan looking forward, trying to determine what our needs are currently and were going to be, and we did this almost 10 years ago now. We then created, after the master space plan was done, a master plan for the space around Judiciary Square, all of the buildings that were part of Courts' inventory but had been shuttered because we did not have the resources to keep them up over the years. That had caused us to retreat into our newest building, which was the Moultrie Building, which is, of course, now a building that is nearly 40 years old. But still we had put a lot of services in there. So we knew we had to get back out of that building because the building was becoming overcrowded. We did the master space plan and determined what our needs were. That is a work in progress. Right now, for example, we are looking at how our probate and tax operation is going to address the increasing needs of a demographic that is getting older and older. At the time we were looking at increasing the number of opportunities to have cell blocks attached to courtrooms because we had so many criminal cases. What we have done is tried to make courtrooms that could be used for both purposes. So we equipped courtrooms with cell blocks even though they are being used for civil trials now, because there has been a decrease in criminal cases, and we are looking forward. We have also increased the opportunity for there to be self-help centers, looking at the demographics of self- represented litigants. So we tried to plan those things into our futuristic view of what we wanted Judiciary Square to look like. Then we looked at technology, IT, multi-door mediation, things like that, and tried to figure out how we could place them. So those priorities have driven to some degree how we have gone out on the Square and renovated buildings. The big driver, however, was our creation of Family Court, and that was a major and significant reorganization of our court building. Moultrie was housing criminal, family, civil at the time, as I said, and there was a lot of concern about our Family Court and the young kids and everyone having to move through the courthouse, all over it, in order to get services, and coming into contact with individuals who were part of the criminal justice system. So one of the things that was driving us was the consolidation of that Family Court, ultimately getting it all in one place with a separate entrance and having the support systems from the District Government co-located to make that worthwhile. And that is what we have been working towards. But we had to get Moultrie decluttered so that we could go back in and reformat the space in a way that made that possible. We have done it in a way that has limited the contact that any family coming in there for typical Family Court matters would have with other parts of the court system, but we haven't completely consolidated it by bringing in the juvenile probation, in-court services and others to that space. And that is what this new addition that I talked about is going to do, it is going to create the additional space. So there have been a number of drivers. It is something that we look at when we look at demographic changes. In fact, we are about to have a joint managers/judges meeting in which we are going to be presented with updated statistics about the community demographics so that we can make even better strategic decisions about where to put our resources. So there was a master space plan. We knew what our needs were going to be based on the projected case filings and we knew what kind of services were going to be impacted at the time. As we have gone along through our strategic planning process, we have relooked at the demographics and we are making other decisions. But the space hasn't changed because the increase in filings hasn't changed. Ultimately we will need the space, and they are already telling us that we will have greater need for more space as they have updated the space plan. But we are just trying to make sure that at least we get to the point where we believe we can effectively administer justice with what we have. Mr. Crenshaw. Well, in that regard, we also provide millions of dollars in terms of IT every year. I know that is kind of a whole new area, particularly in the judicial circles. I wonder how that is working? Some agencies come before us and ask for a lot of money for IT and it doesn't always work out saving money. Sometimes it actually costs more money because they are not really utilizing the IT. So can you comment, because I would think that as you have more technology, then I don't know if that reduces a certain amount of need for space, things like that. Do you have any facts or figures? Can you tell us how it is impacting you all? Is that being managed well? Does that help coordinate cases? How does that all work out in terms of saving money in the long run? Judge Washington. Well, I don't have facts and figures for you on the impact of the IT developments. I can tell you about efficiency. One of the key advantages which is helping, as I was remarking to Congressman Womack, to drive our time is this new technology that allows our case management systems to talk and allows us to get not only electronic digital transcripts but the case record. That has been important. We have also increased our efficiency by utilizing remote access technology like iPads. Our judges have iPads now. They are able to sign orders and work on cases even when they are not at the court. I don't know whether it is good or bad, we work 24 hours a day now it seems, but that is one of the things that has increased our efficiency and allowed us to work cases more quickly. Of course, cybersecurity, especially in the courthouse, is critical. So we have increased our technology which has helped with efficiency. It has also created challenges with cybersecurity issues that we have to continually monitor. So in terms of its impact on the court, I think it has been a boom to us in terms of that. The cost in terms of how much it has saved us I could not tell you, but I can say this: We really see long-term, assuming we can continue to utilize the technology in the way we are starting to do it, through our access to our web portals, opportunities for people to get information and access to the court without having to come perhaps to the court as frequently as they had before. There is more and more that we can do online. For example, we established a remote location out in one of the quadrants of the city in a hospital where domestic violence victims would go to have their injuries treated. We were able to remotely issue protective orders in order to try to allow those people to get the service they need, get the protection they need, and at the same time be able to address not only their physical but their emotional well-being. Victims can set themselves up through other services the District offers to protect them more beyond the paper, beyond the order that the court issues. So I think that is one way. I am sure there are others. I don't know if Chief Judge Satterfield---- Judge Satterfield. Just to add briefly, a lot of jurisdictions are doing E-filing, which we are doing, in most of our divisions in Superior Court, and expect to have it in all. You expect to see some cost savings there because people don't have to come down, they don't have to engage the Clerk's office, they don't have to go through security to get into the building. But you also have to be mindful that a portion of the population, does not have the kind of access to be able to do E-filing even. So as you go forward in those areas, you have to be mindful that you are not cutting off folks from access to the court. But we are moving more in that direction and have been for some time. Mr. Crenshaw. Thank you very much. Mr. Serrano. Mr. Serrano. Thank you, Mr. Chairman. I just have a couple more questions. Judge Washington, your budget has been relatively flat for 3 years now. Can you describe some of the measures you have undertaken in these tight fiscal times? I know you already cut drug treatment and mental health programs, which is not a good thing, but we understand that is what had to be done. What other costs have been cut from the budget in recent months? Judge Washington. Wow, where to start. What we have done in terms of those costs, as I said, we tried to keep them out of the case processing area to the extent we can. There are contractual services, like you suggested. There are services that impact on the safety of the public who are going into our buildings and our employment staff. I mean everything from rodent control to maintenance. Anything we can cut that doesn't impact on our litigants who have or are seeking our service. So that is a wide range of contracts that we have eliminated. We have done a lot of, as I said, holding vacancies open in order to achieve savings, and then what we have done is we have cross-trained employees. So now we have employees who are able to go over and fill in to provide services. Is it the same quality as having somebody there full-time? No. But we are saving money in that respect. We have slowed down our contracts for our capital projects. We have ceased moving forward as quickly with our projects as we can, as we were planning to and hoping to, and we can do that for the convenience, of course, of the government, to keep that project going, but at a much slower rate. We don't want to lose the contractors and we don't want to lose the opportunity to hopefully long-term enact some savings. So I think those are the major things that we are doing right now to address the reduction in our budget. And again, we are trying to use technology to increase the access people have right now. The Court of Appeals is in the process of developing its electronic filing in order to limit the number of individuals we are going to have to put back on our payroll at the time if we are able to increase back or put our staff back into some viable size. So I think we are looking ahead trying to plan, but at the same time the cuts have been, as I said, in the contractual services and in the vacancies. Mr. Serrano. And moving towards the more use of electronics, is that by training, retraining folks you have on board now, or finding new folks, or both? Judge Washington. I think it is both. On the one hand as we do move towards increased use of technology, the job requirements change, and through attrition we are looking at reforming those positions. Through, the monies we did receive that were targeted toward helping us with HR and trying to increase the robustness of our HR department, we have put in place ways of tracking applicants for jobs that has made it much easier for us to get really high quality individuals into those positions, people who have some of these backgrounds that we need. So we are looking at people, we are looking at retooling, reformatting, I am not sure what the right word is, but our HR department is looking at these positions as they come open, looking at how technology can be used to enhance them, and also looking at how other efficiencies might increase with the hiring of different types of personnel. So, yes is the short answer. Mr. Serrano. Sure. And that was part of my question I guess before about relationships you say with law enforcement and so on, but also relationships with educational institutions that may be able to provide both advice, guidance and future personnel. We all know there are a lot of folks graduating who can't seem to find work. So that is related. One last question, Mr. Chairman. Director Ware, with passage of the Second Chance Act, there now seems to be a heightened importance of the importance and social value of supporting offender reentry efforts and programs. Despite this renewed national focus, many of the men and women returning from prison continue to face some very serious barriers in terms of unemployment, access to housing and substance abuse. Are there unique challenges that your parolee and supervised population confront when reintegrating back into communities here in the District of Columbia? Ms. Ware. Yes. Mr. Serrano. I know that is a question you could talk about for 3 hours. Ms. Ware. I will try not to do that to you. But the short answer is yes, and I am glad you brought that up again because one of the things that we found is that if we are able to stabilize them in those three areas, housing, treatment and employment, then we have a much, much greater success rate with keeping them from reoffending. Mr. Quigley mentioned some of the things that really help to stabilize this population. One of the best practices that we have been observing is a practice from out of Chicago called the Safer Foundation. I don't know if you are familiar with them, but they do a yeoman's job of getting this population employed. It is one of the practices that we were hoping to be able to bring to the District of Columbia as a model, because we feel that if we could increase the employment for our offender population, we would decrease the recidivism rate substantially. As you already mentioned, even those folks who are graduating from college are having a difficult time finding jobs, so our population definitely has a very difficult job. So we would have to have a unique approach to getting them employed, and the Safer Foundation has very unique approaches and a great success rate. Again, we would like to bring to the District of Columbia. That being said, 32 percent of our employable population is unemployed. So we have people who actually have graduate degrees, who actually have a GED or high school diploma, but we can't get them jobs. We also have an increasing percent of our population who have behavioral health needs, as I mentioned earlier, substance abuse, co-occurring disabilities, substance abuse and mental health, which is a very, very prevalent in this population, as well as physical health challenges. So there are a number of things that, as Mr. Womack mentioned earlier, our ability to address them, we have found that that has really been the hallmark of our success with this population, and I am sure Cliff would say the same. So we are desperately trying to make sure that we manage our mission in a responsible manner by using every resource available to us to continue to stabilize this population and to give them the services that they need, but also to hold them accountable, and I don't want to diminish that part of our responsibility as well. With that, we use things that are sanctioning tools like GPS that somebody mentioned and Halfway Back, which is a step back to short-term jail stay. But some of those options that we once had available even in our sanctions, will now have to be looked at again in terms of how well we can resource those opportunities. Mr. Serrano. As a follow-up, Director Ware, we know all the strides we have made in dealing with females in our society, making society more responsive and fairer in so many ways, certainly during my lifetime. But as it has to do with female offenders, are there still special challenges they face and what are we doing about that? Ms. Ware. Thank you for that question. Yes, there are very unique challenges that females in the criminal justice arena has to face. Much of it has to do with long-term trauma that have never been addressed, abuse, of course parenting issues. So as a result we have over the last few years put in place several special initiatives focused on our female population. We have a unit within our residential sanctions program for females, specifically focusing on their unique needs and addressing some of the behavioral health issues that they have which are very, very prevalent within the female population. We also have three supervision units that are specifically trained to work with women. We have done that because we find that historically, as you know, the probation and parole approach has been focused on men and has really rarely taken into account some of the of the unique needs of women. But that is now changing and more and more nationally we are having conversations about the unique needs of women. So CSOSA has been in the forefront of those changes, and we have done what I believe to be a really good job of addressing some of those unique needs, and we have been sharing some of our lessons learned with others around the country. Mr. Serrano. Well, that is my last question. I want to thank you, Mr. Chairman. And I want to thank you for your service. We know just how difficult it must be, the work you do. In this society there are some people who believe in one strike and you are out, not three. So what you do every day to kind of give these folks a second chance is something that we really appreciate. Thank you. Ms. Ware. And thank you for your support over this last decade for CSOSA. I appreciate that. Mr. Crenshaw. Mr. Diaz-Balart. Mr. Diaz-Balart. No questions. Mr. Crenshaw. Thank you all for being here. Thank you for what you do every day to protect the lives of the people that live here, that work here, that visit here. I know these are tough times for everybody, and I really appreciate the work that you do under these difficult situations in trying to do things more efficiently and more effectively than ever before. With that, this hearing is adjourned. [GRAPHIC] [TIFF OMITTED] T0953A.036 [GRAPHIC] [TIFF OMITTED] T0953A.037 [GRAPHIC] [TIFF OMITTED] T0953A.038 [GRAPHIC] [TIFF OMITTED] T0953A.039 [GRAPHIC] [TIFF OMITTED] T0953A.040 [GRAPHIC] [TIFF OMITTED] T0953A.041 [GRAPHIC] [TIFF OMITTED] T0953A.042 [GRAPHIC] [TIFF OMITTED] T0953A.043 [GRAPHIC] [TIFF OMITTED] T0953A.044 [GRAPHIC] [TIFF OMITTED] T0953A.045 [GRAPHIC] [TIFF OMITTED] T0953A.046 [GRAPHIC] [TIFF OMITTED] T0953A.047 [GRAPHIC] [TIFF OMITTED] T0953A.048 [GRAPHIC] [TIFF OMITTED] T0953A.049 [GRAPHIC] [TIFF OMITTED] T0953A.050 [GRAPHIC] [TIFF OMITTED] T0953A.051 [GRAPHIC] [TIFF OMITTED] T0953A.052 [GRAPHIC] [TIFF OMITTED] T0953A.053 [GRAPHIC] [TIFF OMITTED] T0953A.054 [GRAPHIC] [TIFF OMITTED] T0953A.055 [GRAPHIC] [TIFF OMITTED] T0953A.056 Wednesday, March 20, 2013. THE JUDICIARY WITNESSES HON. JULIA S. GIBBONS, CHAIR, COMMITTEE ON THE BUDGET, JUDICIAL CONFERENCE OF THE UNITED STATES HON. THOMAS F. HOGAN, DIRECTOR, ADMINISTRATIVE OFFICE, UNITED STATES COURTS Chairman Crenshaw's Opening Statement Mr. Crenshaw. Well, it is 10 o'clock, so I will call the hearing to order. Good morning everyone. Judge Gibbons, Judge Hogan, thank you for appearing before the subcommittee today. Judge Gibbons, this is your ninth time that you have come before our subcommittee, and so we appreciate the fact that you are here. Welcome back to Judge Hogan. It is only his second time. But we are glad you are both here. Having a fair and independent Judiciary is a cornerstone of our democratic system of government. The job of the third branch is one of great importance, responsible for resolving criminal, civil and bankruptcy disputes. The courts must have the trust and respect of all our citizens. In addition, the Judiciary's probation and pretrial service officers perform a critical public safety mission by supervising more than 200,000 offenders and defendants living in our communities. I want to applaud the Judiciary for submitting its fiscal year 2014 budget request in a timely and sensible manner. It is disappointing and a little bit frustrating that the Executive Branch has yet to submit its budget, but I think it is time that they take seriously their obligation to the budget process. Congress must do its work, and we on the Appropriations Committee are committed to writing thoughtful spending bills in regular order. We appreciate that fact that you at the Judiciary are also committed to your role in this process. As you know, the Federal Government continues to operate in an environment of limited resources; however, we are going to try to ensure that you have the resources needed to accomplish your important mission. Over the past few years, you and your staff have worked closely with us to ensure that the Judiciary receives increases to address only your most critical needs, and I thank you for your efforts to reduce costs during these difficult times. The Judiciary's budget request this year proposes an increase of $180 million, or about 2.6 percent above last year's. And I know that this is one of the smallest requests that you have ever made in the past few decades, and it is still going to be tough because of the fiscal situation we find ourselves in. So I want to work with you and our ranking member, Mr. Serrano, to identify the savings that you are able to make and yet still provide--we want to make sure the courts have the resources necessary to fulfill your constitutional duties. So with that, I would like to recognize my good friend and colleague, the ranking member, Mr. Serrano. Mr. Serrano's Opening Statement Mr. Serrano. Thank you, Mr. Chairman. And we thank you for being before us, Judge Hogan you for the second time. And next year Judge Hogan you get a 10-year pin. It is something the Chairman is going to start doing pretty soon. Judge Gibbons and Judge Hogan, you come here at a difficult time for the Federal judiciary, in large part due to sequestration. Most people do not realize that when we discuss the Federal Judiciary, we are not just talking about funding for judges and trials, we are also discussing funding for Federal public defenders, for court security, for free trial services, and for probation services for those released from Federal prison. The programs run by our Federal Judiciary really extend outside of the courtroom, which means that cuts to the judiciary's budget do not just affect litigants, but many of our communities as well. Unfortunately, as a result of sequestration, the Federal Judiciary will have to absorb an almost $350 million cut to your fiscal year 2013 budget. In a letter sent to Chairman Crenshaw and to myself, Judge Hogan detailed the negative impact that these cuts will have on the Federal judiciary's operations. Among other things, there will be a 20 percent cut to drug treatment and mental health programs, there will be a 30 percent cut in court security funding, there will be fewer probation officers, and there will be longer delays in cases going to trial. I know a lot of members like to think of sequestration as an abstract math problem, but it is one that has real world impacts. As I told Justices Kennedy and Breyer when they appeared before the subcommittee last week, I am particularly worried about our Federal public defender program, where layoffs have occurred prior to sequestration and show no signs of abating. Additional funding reductions caused by the sequester will undoubtedly force further difficult choices and undermine the ability of our Federal public defenders to do their utmost to help their clients. I am concerned that we are moving towards a troubling scenario in which our constitutionally mandated duty to provide eligible criminal defendants with legal counsel is substantially obstructed by a lack of funding. Our judicial system is the envy of countries around the world because of its fairness, its efficiency, and the access we all have to it. I hope that those notable features of our system are not undermined by the sequester. Unfortunately, I am fearful that they will be. Judge Hogan and Judge Gibbons, thank you for being here today. I look forward to discussing the sequester and other issues with you. Thank you, Mr. Chairman. Mr. Crenshaw. Thank you. Mr. Crenshaw. So now we will recognize Judge Gibbons. If you could make an opening statement, keep it in the neighborhood of 5 minutes. Your written statement will be included in the record. Judge Gibbons' Opening Statement Judge Gibbons. Thank you. Chairman Crenshaw, Representative Serrano and members of the committee, I am Julia Gibbons, a judge on the Sixth Circuit Court of Appeals and Chair of the Judicial Conference Committee on the Budget. As has been mentioned, with me is Judge Tom Hogan, who is the Director of the Administrative Office of the U.S. Courts. Mr. Chairman, we appreciate your taking the time to meet with us last week in advance of the hearing. As the chair alluded, I have been here several times, and I come before you today more concerned than ever about the financial situation facing the third branch of government and how that will impact our ability to properly administer justice. The 5 percent across-the-board sequestration cuts that took effect March 1 do reduce judiciary funding by nearly $350 million below current levels. These cuts will have a devastating impact on Federal court operations nationwide. We believe we have done all we can do to minimize the impact of sequestration, but a cut of this magnitude, particularly so late in the fiscal year, will affect every aspect of court operations and impact the general public, as well as individuals and businesses looking for relief in the courts. In February, the Executive Committee of the Judicial Conference finalized a number of emergency measures to deal with sequestration, and we are now implementing those measures. These emergency measures are unsustainable, difficult and painful to implement. The Federal court system in this country cannot continue to operate at sequestration funding levels without seriously compromising the constitutional mission of the Federal courts. The judiciary will phase in the cuts, but the impacts will be real and harmful to the citizens served by the courts. The courts operate under a decentralized management system, so each court will decide exactly how to implement the funding cuts, but we estimate that on a national basis, as many as 2,000 employees in the courts could be laid off this fiscal year or face furloughs for 1 day a pay period, resulting in a 10 percent pay cut. These staffing reductions would be in addition to the loss of over 1,800 court staff over the last 18 months. Sequestration will impact public safety, because there will be fewer probation officers to supervise criminal offenders released in our communities. There will be a 30 percent cut in funding for court security systems and equipment, and court security officers will be required to work reduced hours. This creates security vulnerabilities throughout the Federal court system. Our Defender Services program is particularly hard hit, and we currently project significant staff furloughs in that program, as well as lengthy delays in processing payments to private attorneys appointed under the Criminal Justice Act. These cuts will affect the judiciary's ability to provide qualified defense counsel to indigent defendants. As many recent news articles have noted in highlighting recent cuts in both Federal and State defender offices, these cuts occur on the 50th anniversary of the Supreme Court's landmark decision in Gideon v. Wainwright, which provided the constitutional right to defense counsel for indigent defendants. The cuts to the Defender Services program highlight the harm that sequestration, if left in place, poses for individual constitutional guarantees. Under sequestration, the judiciary finds itself in dire circumstances. I do not overstate when I say that we cannot continue to operate at such drastically reduced funding levels without seriously compromising our constitutional mission. We are hopeful that Congress and the Administration will ultimately reach agreement on alternative deficit reduction measures that give priority funding to the functions critical to our democracy and reject the indiscriminate approach of sequestration. Turning to the 2014 budget request, today, of course, sequestration is in place, but our 2013 full year appropriation is still unresolved. For purposes, therefore, of constructing the 2014 request, we assumed the fiscal year 2013 funding level available under the current continuing resolution of a 0.6 percent increase above the fiscal year 2012 enacted appropriations level. After the full year 2013 appropriations are known, we will update our 2014 request and advise you all of any changes. We do in the 2014 request seek $7.2 billion in appropriations, a 2.6 percent overall increase above the assumed 2013 level, our lowest requested increase on record. We believe the funding level we have requested represents the minimum amount required to meet our constitutional and statutory responsibilities. The request reflects essentially a current services budget and includes $175 million for adjustments to base, for standard pay and nonpay changes, including the 1 percent cost-of-living adjustment for judiciary employees, consistent with the President's recommendation for civil service workers, and a total of $5 million for two small program increases. Before I conclude my remarks, I would like to acknowledge the extremely difficult tasks that you all face in deciding how to allocate extremely limited resources among the Federal entities under the jurisdiction of this subcommittee, and we know that each of those entities attempts to make a strong case for its resource needs. But we would ask, as you consider the judiciary's funding for 2014, that you take into account the nature and importance of our work. If sufficient funding is not provided to the courts, we cannot provide the people of the United States the type of justice system that has been a hallmark of our liberty throughout our Nation's history. I would ask that my statement be placed in the record, along with the statements of the Administrative Office, the Federal Judicial Center, the Sentencing Commission, the Court of Appeals for the Federal Circuit, and the Court of International Trade. Mr. Crenshaw. Thank you. 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Judge Hogan, would you like to make an opening statement? Judge Hogan's Opening Statement Judge Hogan. Thank you, Chairman Crenshaw, Representative Serrano, members of the committee. I am pleased to appear before you today and present the fiscal 2014 budget request for the Administrative Office of the U.S. Courts. I will refer to it as the AO for shorthand from now on. And I obviously support the entire judicial needs of the judicial branch for the moneys necessary to operate. About 18 months ago, the Chief Justice appointed me Director of the Administrative Office. I had been a trial judge in the Federal court for 30 years and was pleased that he asked me to take on this position. I have served as Chief Judge of the United States District Court in D.C. here from 2001 until I took senior status in 2008. I then was asked by the court to take over the Guantanamo Bay cases, which I handled on an overall basis managing those cases for the court until the Chief asked me to serve as Director. And my other job is I serve also as a member of the Foreign Intelligence Surveillance Court at this time. As to the Administrative Office, it was created back in 1939 to assist the Federal courts in fulfilling their mission to provide equal justice under the law. It is not a headquarters of the courts; it has management oversight responsibilities for the various judicial programs and supports the Judicial Conference of the United States, which is our governing body. The Judicial Conference determines judicial policies, we help develop new methods and systems and programs for conducting the business of the Federal courts; we develop and support the application of technology; collect and analyze statistics on the business of the Federal courts for accurate planning and decisions about resource needs and for reporting to Congress, as we are required to do; and we provide financial management service, personnel and payroll support for the judiciary. The work of the AO has evolved over the years to meet the needs of the judicial branch. Service to the courts has been our core function and remains so, and we provide administrative support to the 25 Judicial Conference committees, over 2,300 judicial officers, and just under 30,000 court employees. As to sequestration, like the rest of the Federal Government, it reduces the Administrative Office of the U.S. Courts by 5 percent from the fiscal year 2013 CR level. And for the AO, this means a cut of $4.2 million with 7 months remaining in our fiscal year. We are going to meet that shortfall by applying a $1.8 million reduction to nonsalary accounts, which means a 25 percent reduction in our travel, a 50 percent reduction in training, and a 25 percent reduction in office and automation supplies. Additionally, we are forced to reduce funding for salaries and expenses and benefits by $2.4 million. That equates to 15 positions not being filled. The Administrative Office, really starting back in 2011, has been operating at a reduced staffing level, and we have continued that and aggressively pursued that. We expect to be able to achieve the savings through continued hiring freezes and our employee buyouts and early outs. At this time, because of the cost containment efforts we have worked on, I do not believe it will be necessary to furlough AO staff under the sequestration for this fiscal year. In the future, it remains to be seen whether furloughs will be required. But the impact of our support for the courts is considerable under sequestration. One of the things the AO does that is very essential to the court operations is the development and implementation of key information technology systems and programs. We have to slow down or stop our research and development in those areas now. That includes enhancement of critical financial management applications; processing payroll, personnel actions; reviewing court financial operations; supporting probation and pretrial services; and the deployment, finally, of our national Internet-based telephone system, which is a great cost-saver, but will have to be paused this spring. In addition, the Administrative Office has been very instrumental in helping the courts' overall cost containment efforts. We are committed to continuing that work with our various committees in the Judicial Conference and developing even further cost containment issues along with the Budget Committee that has led the effort to limit the growth in judiciary programs. As to the Administrative Office itself, our own cost containment, we have been working on an initiative that we started, as I said, back in 2011 that would control costs, help prepare us for future budget constraints. An internal AO Cost Containment Task Force identified measures that could be quickly implemented that have immediate financial impact, and they have included reductions, I mentioned, in travel, printing, publications, descriptions, reducing mobile device costs. And all those cutbacks will continue this year. But 93 percent of our funding goes to support employee pay and benefits, so by necessity, the longer-term cost containment initiatives are in those areas. Early retirement opportunities that have been made available in 2012 fiscal year will continue to be offered this fiscal year. Policies were established to permit the buyouts as a workforce restructuring tool, and we had 31 buyouts accepted this past fiscal year. During fiscal year 2012, early outs and buyouts resulted in close to $2 million in savings. Hiring was restricted to entry level, or lower end of the pay band, with some limited exceptions. In 2012 fiscal year adherence to this policy, we reduced our costs by $700,000. We are continuing to review our contractor positions to determine the cost-effectiveness of converting certain positions to temporary government or permanent government positions. We have discovered that contractor positions are very expensive, so 100 of the highest cost contractor positions were identified for conversion to lower cost government positions, for the most part temporary positions. To date we have converted nine contractor positions to government employees with a fiscal 2013 savings of $540,000. This initiative eventually could contribute over $6 million in savings to ongoing projects. Finally, our budget request for 2014 was built upon the level of available funding under the current continuing resolution, but the sequestration has been applied to the hard freeze of the 2012 level funding now in consideration by Congress, and as Judge Gibbons said earlier, after the 2013 appropriations are known, we will update our 2014 request accordingly. As Judge Gibbons recognized, I know this is a very difficult year for you and your colleagues as you struggle to meet the funding needs of the various agencies and programs under your jurisdiction, and we appreciate the challenges that you all face. We hope that Congress and the Administration can agree upon legislation and provide some long-term relief and stability to our budget. Again, I thank you for the opportunity to appear today, and I would be pleased to answer any questions that you have. Mr. Crenshaw. Thank you very much, both of you all, for those comments. [The information follows:] [GRAPHIC] [TIFF OMITTED] T0953A.088 [GRAPHIC] [TIFF OMITTED] T0953A.089 [GRAPHIC] [TIFF OMITTED] T0953A.090 [GRAPHIC] [TIFF OMITTED] T0953A.091 [GRAPHIC] [TIFF OMITTED] T0953A.092 [GRAPHIC] [TIFF OMITTED] T0953A.093 [GRAPHIC] [TIFF OMITTED] T0953A.094 [GRAPHIC] [TIFF OMITTED] T0953A.095 [GRAPHIC] [TIFF OMITTED] T0953A.096 [GRAPHIC] [TIFF OMITTED] T0953A.097 [GRAPHIC] [TIFF OMITTED] T0953A.098 [GRAPHIC] [TIFF OMITTED] T0953A.099 SEQUESTRATION AND COST CONTAINMENT Mr. Crenshaw. One of the things, when I hear, Judge Gibbons, you paint a fairly bleak picture in terms of funding, and on the other side, it is good to hear Judge Hogan talk about some of the things that you all have done, and I think you are to be applauded for that, because most of us on this committee, we think that the continuing resolution is not a very good way to run the railroad, because our job is to have these kind of hearings, to listen to you all, to make priority decisions. And programs that are working well, then we ought to fund them, and if programs are not working as well or wasting money, then we ought to reduce or limit them. But when you do a CR, continuing resolution, you just say, we will just give you the same amount of money you had last year whether you were doing a good job or not. And so we all are disappointed that that is where we find ourselves. And then you throw in the fact that we have this concept of sequestration, which once again most appropriators would say is a terrible way to try to find reductions in spending, because most things that the Federal Government does are important, but just like in life, some things are more important than others. And it would be a whole lot better if we want to try to reduce spending, that we would look and find the areas that are doing a good job and fund them at an appropriate level, and again, find other areas where there is waste, and we would reduce that, but we do not get that opportunity. It is just across- the-board, pretty draconian, not a very good way to do it, but we find ourselves in that situation. And I appreciate the fact that you have taken that, because in one sense it is obviously a curse in the sense that you do not have all the money you need, but in one sense it might even be a blessing. As Judge Hogan kind of pointed out, there are things that you have done that are very impressive to say, look, we know we are going to have less money and we are going to have to live with that. Maybe you might comment on two things. One, specifically some of the things that, as you say, just impact your ability to do your constitutional duty. Does that mean less cases? Some of the specifics about that, I would love to hear. And then, two, some of the things that you are doing to reduce your spending. One of the things that comes to my mind, I know that there is about a billion dollars in your request that goes for office space. And there is some new office space, I think there were 76,000 square feet of new space, and on the other hand I think over the last year and a half, the number of staff has gone down by, like, 1,900, and I am sure that is part of your process in terms of how to control costs, because that is a lot of money in terms of money that you pay to the GSA all across the country. So talk about how you are working on that more specifically in terms of just dealing with the space. I imagine it takes time to catch up. You got plenty of space, you got less people, so you got to match up that. That is one area that I am sure you are working on. But could you do that? Could you touch on a couple of the areas specifically so we can understand, you know, how difficult it is, and, two, highlight some of the things that I think Judge Hogan has already talked about that you have really been able to define areas to save money? Judge Gibbons. Okay. I will try to take on both of those assignments, Mr. Chairman. First, specific impacts of sequestration. All of these are important, but I am going to take a little picture, moving to big picture approach to answering this question. Within the court, the impact on judiciary employees for whom we, of course, feel a great deal of responsibility, we are talking about their loss of income and increased risk because of reduced security, increased risk of working in a court environment. Moving to the people whom the courts serve, we will try our very best to avoid this, but I think it is almost inevitable that we will see some delays in the handling of cases. And, of course, we have individuals who seek relief in our courts. We also have businesses who seek relief in our courts. Both will be affected by potential delays in civil litigation. In bankruptcy cases, we of course have both individuals and businesses who come before us as debtors, but we also have all the many businesses who are creditors in bankruptcy proceedings who may well be affected by delays in the process. Obviously, given the amount of our docket that deals with business and commercial activity, there is some economic impact from this, as I believe Justice Kennedy mentioned to you all last week. Turning to other public policy goals, I have already mentioned the economic situation, but the public policy goal of maintaining the public safety is compromised if we have fewer probation officers to supervise dangerous offenders who are released from prison. Congress has expressed the public policy goal of disposing of criminal cases quickly through the Speedy Trial Act. We would certainly hope that we would be able to dispose of cases in the manner that the Act requires, but that is in jeopardy if delay is occasioned. The remedy, of course, if the Speedy Trial Act is violated, is dismissal of the indictment. That will come about not only because of internal- to-the-courts issues, but also because of the situation that has been mentioned with respect to the Federal defenders and their resource needs. They may simply not be able to step up to the representation of criminal defendants in as timely a manner because of their own personnel resource scarcity. The public policy goal of providing representation for indigent defendants, a public policy goal that is incorporated in our Constitution, not merely in statute, will be compromised by these cuts. And, finally, the biggest picture issue of all is that the place that the courts have held in our democracy is jeopardized. The Constitution envisions a strong and independent judiciary that can handle the cases and controversies that come before it. I am not a fan of hyperbole and I avoid it, so it is no hyperbole when I say that we have deep concern about our ability to fulfill our constitutional mission. Now, those are the sequestration impacts, big to small-- small to big. Turning to cost containment and more specifically the space situation, we have actually, lest it seem as though cost containment is something we began to do in response to sequestration or the threat of it or began to do recently, we have had a very aggressive cost containment effort since 2004. And I will not go over all of our past accomplishments, and I will refrain from patting ourselves on the back, as we have done in past committee hearings, but it has been there, it has been in place. But we, of course, have a lot of new things ongoing, too. While we have done a lot of things in space over the years to control the growth in that account, of course the issue of the day is downsizing our space as our personnel have decreased. And also there is room for downsizing as a result of our use of technology. And we intend to do that. The problem is, it is hard to do it as quickly as the budget cuts have come, because much of the space that has been freed up by downsizing and technology is interior space, and we cannot just say to GSA, we have a little office here, please come take it. Steps have to be made to make it marketable, funding is required to move folks around, and in a constrained budget, that is hard to do. And GSA may be reluctant to fund space reduction efforts, given its own constraints and given the expense of doing it. So the whole process is simply slowed by that, but nevertheless we are working on it. Everything has to have a name within government, and I fear the judiciary has not avoided that trend. We have something called the Integrated Workplace Initiative that is designed to downsize our workspace and make it a different kind of workspace, really because of the flexibility that technology has given us with respect to when and where work can be done. Again, money is required, though, to outfit the workplaces to meet this new sort of model. Other areas we have been trying to address, the closing of nonresident courthouses--a very difficult thing to do. We have gotten some of them closed. We need to continue to do that. We are looking hard at our libraries and whether we have excess space in the libraries and whether we might downsize there as more and more legal research is computerized as opposed to being done in the books that line the shelves. We have provided a little bit of a financial incentive to courts that release space through our circuit rent budget, providing them a little bit of a credit, hoping that we can get more courts to step up and say, hey, I have got this space, let's figure out how you can take it, GSA. That is what we are doing in the space area. We have many other cost containment initiatives, and I am happy to address them now or later, but if your particular interest at this point is space, I will stop. Mr. Crenshaw. Well, thank you very much. And I think we all applaud the efforts you are making on a farsighted basis, and I just hope some of the other agencies have had the foresight that you have had that in these difficult times make it a little more bearable. So, again, thank you for that. Mr. Serrano. SEQUESTRATION CUTS IN THE DEFENDER SERVICES PROGRAM Mr. Serrano. Thank you. And once again, thank you for being here. I am going to once again discuss with you the whole issue of the public defenders and my concern that the program may be hurt to a point where it cannot meet its constitutional responsibility. You know, we spend a lot of time in this Congress, and it is fine, I think it is proper, discussing, you know, our country versus other countries and our great democracy and our form of government. Notwithstanding how many people on TV may knock it on a daily basis, I still think that a lot of the world would like to have this system in place, and we could discuss so many things about it. But one of the ones that always stands out to me, and I am not a lawyer, but one thing that stands out to me is the fact that a person of no resources or very low resources can still get counsel and be protected, and we can try to give that person the fairest trial possible. And that is something that is different about us from a lot of other countries. So I am concerned about ensuring the rights to counsel for indigent defendants even in these difficult budget times. Are you, Judge Gibbons, concerned about the effects funding cuts will have on the Federal public defender program? And what, if any, flexibility does the judiciary have to shift funds around to help this important program? Judge Gibbons. We are certainly very concerned. Part of the impact in that program comes from the fact that even more than the salaries and expenses account, that particular account is so heavily personnel and rent. It is about 90 percent, making the cuts in that account very difficult. We estimate that employees in the Federal defenders offices will be furloughed 1 day a week under sequestration. Because all the accounts are so hard hit, it is very difficult, as you might imagine, to say we would shift funds. Certainly once our 2013 appropriations are finalized, we will look to see if there is a way we can help the defender services account. Last week a number of judges were in town for the meetings of the Judicial Conference and for related meetings, and in those various meetings it was heartening to me to see the concern that judges and the court managers who were here expressed and their willingness to look at ways that the courts could help the defender offices, not necessarily by shifting funds, but other mechanisms which we really have not even begun to discuss yet. These might be problematic to the extent, you know, it is important to the defenders not to be seen as controlled by the courts. We appoint counsel in these cases, but then they have an independent duty to represent the client. I mean, the lawyers are not doing what the judges tell them in the cases, obviously. And so we have got to explore, find alternatives with that in mind, but I think that we will be discussing that some more. Mr. Serrano. Now, at the end of one of your statements, you said you are concerned that the courts--the courts, I believe you were speaking to--cannot meet their constitutional mandate. Is that a more difficult situation when it comes to the defenders, or is it across the board that you have this feeling? Judge Gibbons. Certainly the defender program is not the only area in which we think our constitutional mission is in jeopardy. As you know, we do not have extra programs that can be lopped off. Everything the courts do is something that we are required by the Constitution or statute to do. But certainly the defender program is perhaps the most immediately affected program in a very grave way. Mr. Serrano. Right. Well, when his turn comes up, Mr. Quigley will be asking a much more---- Mr. Quigley. Similar. Mr. Serrano. Smart? Mr. Quigley. Similar. Mr. Serrano. Similar, but more pointed questions, because I am going to do something he will hate me for, and that is mess up his presentation by telling you that he was a public defender. Mr. Quigley. Private attorney. IMPACT OF SEQUESTRATION ON THE JUDICIARY'S IT PROGRAM Mr. Serrano. And so we commend him for that. Judge Hogan, a similar question to you. The impact of sequestration on the Administrative Office of the Courts will be considerable, as noted in your testimony. In particular, you note cuts will have a long-term cost in regard to missed opportunities; for example, reduced IT expenditures. In your letter, you say that the Federal Judiciary cannot continue to operate at such drastically reduced funding levels without seriously compromising the constitutional mission of the Federal courts. How long can the courts continue to operate under this extreme budget pressure, one of the most troubling aspects of sequestration for the Federal Judiciary, in your opinion? Judge Hogan. Thank you, Congressman Serrano. We are concerned as to the information technology development. It may be somewhat surprising, but I believe the courts have become one of the most tech savvy workplaces of all the government structures. We have developed, particularly in probation and pretrial, automation services that allows them to reduce their office space greatly, utilize mobile technology with all their records and files when they visit their clients, et cetera, to be available, and very good reporting systems. The same is true throughout the courts, not only in the legal research systems, but on our financial systems, our statistical recordkeeping systems. And what we are concerned about, our director of IT, Joseph Peters, has developed a very good strategic plan for the next 5 years on how to integrate some of our systems together to save money and reduce our expenses greatly. Some of that is going to have to come to a halt. I had referenced our telephone system. We had been putting in a new Internet-based telephone system in the courts. We had a goal of putting in 30,000 pieces of equipment for the courts in 5 years. In the first 2 years this operated, it was so popular with the courts, we put 22,000-plus in, almost reached our goal in 2 years rather than 5 years. We are going to have to bring that to a halt later this Spring because the money is not going to be there because of sequestration to complete the system that we wished. And it saves the courts a lot of money by having this integrated phone system. That is one example. I think we can still meet our constitutional duties in the courts by providing services that are required. It will just be slower and more time consuming, and we will eventually pay the price in years to come when we have not developed our new automated systems we are working on now because of the delays in getting them done. The immediate impact is somewhat severe, but the future impact we are not sure yet, but I think it will be limiting us in the future to do the work the way we feel we can do it. That is just one example as to the problems with the sequestration on the IT structure that we have. Mr. Serrano. Right. Thank you. Thank you, Mr. Chairman. Mr. Crenshaw. Thank you. Mr. Diaz-Balart. CYBERSECURITY AND THE USSC WEBSITE HACKING Mr. Diaz-Balart. Thank you very much, Mr. Chairman. Good to see you all. Thanks for being here. Actually a question on a different vein, the issue about cybersecurity and cyber threats, and it is something that obviously the private sector and, frankly, all the Federal Government has been highly subjected to recently. And recently the U.S. Sentencing Commission's Web site was hacked on two occasions by the group Anonymous. And could you just give us your understanding as to how bad that was, what was compromised, and also what measures have been taken or can be taken to try to stop that from happening again, if at all possible? Judge Hogan. I will be pleased to talk about that. Thank you for that question. Cybersecurity is a considerable problem for the courts with the type of information that we contain in our records, and we are very sensitive to that. I will address first the Sentencing Commission issue. I got rather involved in that and I can talk to that, and then our national program of security I can address as well. And with my background in the FISA Court, I must tell you that I am very sensitive to cybersecurity, that is one of the most serious problems that the FISA Court works on. On the Sentencing Commission, there was a Friday night attack, which had been identified, by this loosely organized group called Anonymous. Frankly, I think they were trying to attack the Justice Department. I think they thought the U.S. Sentencing Commission was part of the Justice Department. They found a failure in their security that they had, and they were able to intrude and bring it down. Their security contractors (they had a private security contract) felt they had cured the problem and put it back up again on Saturday. Anonymous had managed to arrange it such that they could get right back in again, and they did again on Saturday, and this time they took it down and embarrassingly made the page, when you went onto it, refer you to some computer satellite game or something, and the Sentencing Commission site was destroyed. That caused considerable concern. There was nothing taken from their public Web site that had personal, confidential information or any links. They could not go into their operating systems. So they did not compromise the entire system, but they destroyed the Web site. The AO then was sought by Judge Patti Saris, the Chair of the Sentencing Commission, to help, and we provided technical assistance. We made a number of security improvements. We are now temporarily hosting the Commission's Web site. We put it back up. It took quite a while, almost 2 weeks to get it restructured. And we are now exploring with the Commission an appropriate and secure long-term hosting arrangement. We can take it over, but it is going to have to be done with some understanding and how we are going to do this. I will not go into the security that was enhanced, but they have enhanced it, and it has withstood their attacks at this point. As to overall national security policies of the court system, we have developed, and continuously monitor 24/7 programs to advise us of any malicious activity, attacks. We have programs that go out to the courts constantly advising them of security patches to install. In fact, the attack on the Sentencing Commission was successful because their contractor had not made a patch that they had been told to make, unfortunately. At the local level, we have licensed security software for end point protection, we have annual security awareness programs. And I, particularly with my background, have been very concerned. I have a weekly report from my IT people as to security attacks against the judiciary as a whole. And we have been constantly attacked, particularly by Anonymous for almost every Sunday evening in the last several months, and it has continued. They have not been successful against the courts. There was one cyberattack in the Eastern District of Michigan, which caused a problem for a few hours that we resolved, but other than that, there has been no successful attack against the judiciary--I am knocking on wood--that has yet to occur. We are very sensitive to that. We do find, unfortunately, constantly, because of people that come to the courthouse with their laptops and plug in to use it while they are in court, our interns come in, some other people come in, and they can introduce malware from their own computers. We are very sensitive to that and we have programs that pick that up, and we constantly warn courts and advise them: We have discovered on your system, there is some malware that has been introduced. You must clear it up immediately. And that is constant, our service on that. We have also worked with Homeland Security and with the Department of Defense and with the FBI on continuing our security, and work with them closely together to make sure that we remain protected. We are very cognizant of the sensitive materials in our court system, which should not be made public, not only in criminal matters, very sensitive criminal matters that are ongoing, but cases that involved classified information, that type of thing. So we are very sensitive and we are trying to do the best we can in the cybersecurity area, and I think so far we have been fairly successful in that. That is one area that we are protecting as much as possible under sequestration, not cutting the budget. Mr. Diaz-Balart. Thank you. Thank you, Mr. Chairman. Mr. Crenshaw. Thank you. Mr. Quigley. DEFENDER SERVICES PROGRAM Mr. Quigley. Thank you, Mr. Chairman. Just for the record, I was not a public defender, I was a private defense attorney. I always tell folks, the highest conviction rate in the county. It is funnier if you actually practice law, I guess. Let me ask a little bit more about the public defender program, the Federal defender program. And, Judge Gibbons, if you could, just for the public's understanding, people in court are defended by their own attorney that they hire, but they are also defended by people paid for with the public's money. Could you just briefly explain the different ways that can happen? Judge Gibbons. Well, of course, if a defendant can hire his own attorney, then the Federal defender offices and the panel attorneys do not become involved, no public moneys are involved in the representation. If the defendant is determined to be indigent, then an attorney is appointed by the court. We have found in the Federal system that the way to provide the best and also the most cost-effective representation is to set up Federal defender offices in the various districts. There are Federal defender offices in virtually all the districts. Mr. Quigley. And are these full-time employees? Judge Gibbons. These are full-time lawyers. They are supported by non-lawyer staff. There is a Federal defender who heads the office in each district. Mr. Quigley. Judge, if I could interrupt. Why would they appoint someone versus using that office? Judge Gibbons. Well, because, two reasons. If there is a multiple-defendant case or otherwise a conflict for the Federal defender's office in representing the defendant, then somebody else has to be appointed. And the courts maintain, each court maintains a panel of attorneys who have agreed to accept such appointments and in most cases have been screened by the court to meet certain qualifications. There has been another practice that has triggered that private appointment, and it is one that we have been concerned about from a cost standpoint, but there has been another practice that when the Federal defender's office reaches a point at which it believes it cannot accept more appointments, in some districts the Federal defender has gone to the judges and asked the judges to appoint, for some period of time, private attorneys. We do not think that there is anything wrong with that practice, except we want to make sure that the resources of the defender's office are fully exhausted before that happens. Mr. Quigley. Well, let me ask you as we get closer to the main points here, the demand currently, what I said when we talked to some of your colleagues the other day was that a downturn in the economy tends to have an uptick in people who need to have someone appointed, because they do not have the resources. I do not know if you have noticed that trend of greater demand at the same time or just an uptick in crime, perhaps? Judge Gibbons. You know, I mean, we have had some increases in representations, but truthfully it is not the usual defendant in Federal court who has ample resources to hire his own lawyer whether the economy is good or bad. Mr. Quigley. What is the percentage? Judge Gibbons. So there is probably some reaction to the economy, but your typical defendant is not among our most affluent citizens. Mr. Quigley. What percentage of them are currently incarcerated when they are in that position, when they are on trial, and what percentage, to your knowledge, are using some help from the defender's office or appointment? Judge Gibbons. You know, I am not sure that I have those. I mean, we can certainly get those figures for you. [The information follows:] [Clerk's note.--Subsequent to the hearing, the Judiciary provided the following information:] Regarding pretrial detention rates, in 2012 72 percent (71,214 of 99,066) of all defendants were detained pending trial. These figures include defendants awaiting trial on immigration charges. Because defendants charged with immigration offenses are considered a flight risk they are typically detained pending trial. Excluding immigration cases, the pretrial detention rate drops to 57 percent (36,050 of 63,795). Regarding the percentage of defendants requiring defense counsel under the Criminal Justice Act, approximately 90 percent of federal criminal cases have appointed counsel. Federal defender organizations typically are assigned in about 60 percent of appointments under the Criminal Justice Act, and private panel attorneys are appointed in the remaining 40 percent of cases. Judge Gibbons. Off the top of my head, I do not know. Somebody may pass me a note in a few minutes and tell me. Mr. Quigley. I do not see anybody scribbling right now. Judge Gibbons. So maybe I will be able to help you out. Mr. Quigley. Sure. Judge Hogan. If I can just chime in for one thing. I know that about 90 percent of the criminal cases in the Federal courts are represented by either Federal public defenders or what we call Criminal Justice Act attorneys appointed under the law. Mr. Quigley. Sure. Judge Hogan. So maybe about 10 percent are retained counsel. PANEL ATTORNEY RATES Mr. Quigley. Right. And let me tell folks, and you can echo this or not, those appointed are not paid lavishly. I would say most that take those cases do so partially because it is, I guess, additional income and it is something they think is the right thing to do. But no one is getting rich, either, defending these cases as they are appointed. Judge Gibbons. They are paid substantially less than they would charge your typical paying client. We worked really hard for a number of years with this subcommittee to get that rate up to its current level, but it still is nowhere near market rates. Mr. Quigley. And has there been any analysis of how that has affected, as diplomatically as I could say, the quality of representation? Judge Gibbons. During the years when we were trying to obtain an increase, I mean, there are several years on that, but we did do some surveys to try to determine the extent to which the limited pay available was affecting willingness to serve and the quality of counsel. And obviously one of the concerns we have about the sequestration period and the delay of payments to private attorneys is that more and more attorneys will become unwilling to accept these appointments if they are not going to be paid in a timely manner. And that is of real concern to us. If you will bear with me just a minute, as I mentioned earlier, the two parts of this account really interact with each other, because to the extent the Federal defender's office does not handle a case, there is a need for private attorneys to handle that case. Mr. Quigley. Sure. Judge Gibbons. --The two accounts play against each other, and the deferrals on the private attorney side, the CJA side, could be very problematic for us. So that is not much of anything other than a very short-term answer to the problem of adequate appropriations for the defender offices. Mr. Quigley. Thank you, Mr. Chairman. Thank you. Mr. Crenshaw. Thank you. Mr. Yoder. TEMPORARY DISTRICT JUDGESHIP EXTENSIONS Mr. Yoder. Thank you, Mr. Chairman. Welcome to the committee. Thanks for your testimony today. Glad to have you here. Judge Gibbons, in your testimony on page 4, you discuss your request for a CR anomaly, which is a no-cost anomaly to extend the authorizations for nine temporary district judgeships that are at risk of being lost. If a judgeship vacancy occurs in a district after a temporary judgeship authorization expires, that judgeship is permanently lost. Kansas is one of those areas. Can you discuss with the committee the immediate impact that would occur in jurisdictions where a no-cost anomaly in the CR had not been included, what the potential impact to those jurisdictions would be through a death or retirement without proper language? Judge Gibbons. Well, obviously, if the judgeship is lost the cases have to be shifted to other judges. And that really creates, obviously, resource imbalances and difficulties in handling workload within the district. In Kansas, for example, the evaluation is that a permanent judgeship is needed. But in the absence of a bill creating permanent judgeships, the extension of the temporaries is very important in order to get the workload in that court handled appropriately. Mr. Yoder. And the scenario, then, without proper verbiage going forward, would be if there would be a death or a retirement, that judgeship would be lost, there would be no provision to replace it, and it would have to be recreated through either new legislation creating a permanent judgeship or a new temporary judgeship. But in the meantime, there would be no mechanism to fill that vacancy---- Judge Gibbons. Right. Mr. Yoder [continuing]. Because of the statute. Judge Gibbons. Right. I think I am correct about this, and I know I will be corrected if I am incorrect, I think the proposed language that tries to adjust the period of these temporary judgeships so that we can avoid--I believe that your judgeship lapsed in November of 2012--and avoid the situation where you have got these lapses occurring during the period typically covered by a continuing resolution. [GRAPHIC] [TIFF OMITTED] T0953A.100 Mr. Yoder. So that is something we want to continue to work with you on to ensure that we have the right language to protect those positions. And so I appreciate your---- Judge Gibbons. I believe our staff has worked hard at trying---- Mr. Yoder. We know they have. Judge Gibbons [continuing]. To make sure that the appropriate language is in the resolution. COST CONTAINMENT Mr. Yoder. Thank you for that. Look forward to working to ensure that that occurs going forward. I want to talk a little bit about cost containment and what we can do to assist the judiciary to have opportunities to save money. And so, you know, I certainly would appreciate your thoughts on statutes or requirements or rules that the Federal Government has in place that we could make modifications to that would allow the judiciary to save money and allow them to have the flexibility to be better stewards of tax dollars, which, of course, all of us want. Judge Gibbons. We have begun to think about and to talk about structural changes. And there are some that we know of that could make a difference, but we are not certain that all of them would be good ideas. I mentioned some of these to you only as a way of sort of conceptualizing how we might think about this differently if we really wanted to turn things upside down. Our structural issues do drive our costs. We have 94 district courts and the corresponding number of bankruptcy courts. I do not know that any structural change in the number of district courts we have is advisable, but if we were to consider it, you were to consider it, I am pretty sure that you would encounter many of the same obstacles we encounter when we talk about closing a courthouse in a particular locality. So I think it would be a difficult thing to do. One thing we have talked about doing is consolidation of district and bankruptcy clerks' offices, and there are differing views within the judiciary about whether that is a good idea or not. But that requires legislative change. Mr. Yoder. If I might, do we have any idea what the savings on that would be? Because you would essentially consolidate 94 clerk offices across the country. Judge Gibbons. There would be some. I mean, there would be some. I cannot quantify it for you now. We could try to give you a ballpark figure if we did it for every court. But there would definitely be some savings. I will talk just in a minute about a way we are trying to address the same problem without legislative change---- [GRAPHIC] [TIFF OMITTED] T0953A.101 Mr. Yoder. That would be great. Thanks. Judge Gibbons [continuing]. In terms of cost containment. But before I leave my list of the things that might be changed, you know, we pay our rent to the General Services Administration. And although sequestration has affected us, we do not receive any discount on our rent. And we have never been certain that that whole arrangement is the one that makes the most sense in terms of efficiency. And you will hear a lot of dissatisfaction in the judiciary about that arrangement and the way it operates. We also, as you know, pay charges to the Federal Protective Service for providing protection in our buildings. And while we have managed with GSA to develop a good system of validating our rent bills, we have been having trouble validating the bills we receive from the Federal Protective Service. So that might be another area in which to look. We have for a long time now, though, tried to work around our structure and to bring about cost containment, accepting that our structure is as it is. We have had for years means of getting judicial resources to the areas that most need them through our Committee on Inter-Circuit Assignments, through visiting judge programs that operate more informally within circuits, and through just a whole lot of help from all parts of the country to the Southwest border courts, which have had so much difficulty with their caseload. But in the area of, you know, court operations, one of the biggest areas we are emphasizing right now for cost containment is the concept of shared administrative services, meaning that courts could share functions like human resources, information technology, procurement, finance, budget, property management, and that that might be a more efficient way to do things than for each court to have its own separate folks doing that. And we have removed internally the barriers to courts doing that so that courts are now free to share without regard to district lines or court lines or what type of court unit, without regard to geography. And so that is one of our primary areas of emphasis. We have had each court do a plan telling how it intends to share services. And we are beginning to look just initially at whether there are any other ways in which we can share services despite our construction. I have been reminded that the GAO is looking at the consolidation issue with respect to district and bankruptcy courts at the request of this subcommittee, and we are interested to see what their recommendation would be. And they will probably attempt to quantify whatever savings might accrue. Whether we will agree with their assessment or not, I do not know, but we will see. REDUCING SPACE NEEDS AND RENT COSTS Mr. Yoder. Thank you for that. And I appreciate the initiative you are taking in this regard to figure out ways to reduce costs. And certainly quite often we deal with sort of a hide-the-ball issue in Washington where it is hard to get agencies or entities to talk about how they might save costs because that may mean they get less money. And so we appreciate you taking initiative. I always appreciate an approach where we are working together to find ways to find savings for taxpayers in a way that there is cooperation. And so it is a good relationship. I did want to ask, just briefly, Mr. Chairman, one final question related to this topic. That is in your testimony on page 5, where you say that one of the judiciary's biggest cost containment successes has been reducing your space needs and rent costs. You say the GSA's cooperation is essential, though, to your ability to reduce space. You will need them to work with you on space reduction, including taking back excess space from you in a timely manner. We just had the GSA in this committee yesterday. But I guess I would ask, is that working and what can we do to help in that regard? Judge Gibbons. Our relationship, day-to-day relationship with GSA, has actually been a fairly productive one over the last several years, and that is at the national level, although sometimes there are frictions that occur with respect to particular projects and particular courts. So, you know, I would describe that as the overall nature of the relationship. They have worked with us in some ways to hold down our costs over the years. But still just the whole structure is one that gives us a lot of trouble, and it is a situation in which, you know, we can control to a limited degree whether and when we give up space, but we cannot control the selection of our space, for the most part, we cannot control the annual increases. And yet this is an item that we must pay. Inherent in the relationship is some difficulty even if we are working very, very well with the GSA officials on a day-to-day basis. Mr. Yoder. Thank you for your testimony. Thank you, Mr. Chairman. TERRORISM TRIALS Mr. Crenshaw. Thank you. I have one final question. I think Mr. Serrano might have one. And this is more asking for an observation. We have talked a lot about cost containment and you are to be applauded for so many things that you have done. I want to ask you about these high-profile terrorism trials you read about from time to time. I noticed that the administration has decided to bring Osama bin Laden's son-in-law to the United States to have a trial. And I know you do not decide, you know, how or when foreign terrorists are going to be tried. And I am sure that the judiciary will do everything they can to make sure it is a fair trial and the Federal Marshals will provide security. But it seems to me that that has got to impact the day-to-day operations. And I do not know how often this happens. But when we are talking about limited resources and how every dollar counts, what is your observation about the impact those kind of high-profile terrorist trials have on the normal operations of the court? For instance, seems like you have to have more security for the judges, for the jurors. And I guess the Department of Justice shares in that. But there have got to be some increases in expenses. And then, for instance, if you have a high-profile trial going on, do you have to suspend some of the other activities because all that commotion that goes on around the court? Just a brief comment on your observations about the impact that these would have on our operations normally. Judge Hogan. Yes. Thank you, Mr. Chairman. I have had some personal experience with that in my work in the D.C. Court here, in the Federal court, and am familiar, obviously, as Director of some of these issues. They do have quite an impact upon the courts. There is no question about that. And the high-profile terrorism case does provide additional challenges to the normal operation of the court system. It does not paralyze the court. The other judges still do their work. It makes it perhaps more difficult. Some of the areas you have to look at in planning this when you get one of these cases, and I think it reflects a little bit on our budget issues because we do not choose our work, our work comes to us. Other people give us work. And it can be the executive branch that gives us work through the cases they bring or the legislature with new laws. And so we have to meet those demands. I sometimes wish that we would be able to have, both from the executive and legislative branches, a judicial impact statement when they are going to do something to us to let us know how much they think it is going to cost us to handle this new work. Mr. Crenshaw. We call those unfunded mandates. Judge Hogan. That is a good term for it. In the terrorism area, if a court draws a terrorism trial, as happened in New York, and it is the judgment of the executive branch to bring it, obviously the first thing you look at is security issues. And what will happen normally is you meet with the Marshals' office, who do a threat assessment. And they have a special team that comes in and does that. They will meet with the judge and the chief judge to determine what additional equipment may be needed for security purposes, how much additional staff will be needed, what they will have to do with the neighborhood surrounding the courthouse, blocking off roads, which has happened before, making it difficult for the people that live there, frankly, to get in and out. And other security methods. They have to look at transportation, frankly, of the individual or individuals they are bringing and how are they going to accomplish that. There was one case in my court we brought them in by helicopter for safety reasons rather than driving them through the streets. There are just various problems that the Marshal has to work with, with the prosecutor's office and the defense counsel and the court to handle that. So the Marshals have a very large role in those areas. Another area that you do not think about very often, it will probably involve classified information. And then we get into what they call CIPA, the Classified Information Procedures Act that you have to clear this information and how it is going to be used. But that means we have to set up in the courthouse, you have to create, if you do not have one--and, again, Judge Gibbons talked about the acronyms--a SCIF, Secure Compartmentalized Information Facility. That is a locked-down facility where you keep the secret information and no one can get in there without special access, and there is no communications within that room, et cetera, so the information is protected. And that means that to set that up has to be done and you have to operate that, while you have a special information officer who handles that from the Justice Department as well. After you go through setting that up, then you have to get your staff security clearances to be able to look at this information. And that costs money and time as well. And then the final component really is, if you get towards a trial, the jury. And you are going to have to summon a large number of potential jurors to come down because difficulties in getting them to serve and knowledge they may have about the case or preconceptions. So you have to go through hundreds of jurors to select the trial, and that is expensive and time consuming as well. The bottom line, I think, is that we have conducted terrorism trials of a high-profile nature, high-visibility nature, of a high-threat nature. They have been done successfully. But they are very expensive and time consuming. And with the sequestration, for instance, I am concerned if an individual is brought in on the Federal defenders and the monies that are available for them to be able to represent the defendant and what they can afford to do. It will be a challenge for high-threat trials in the future at this budget level, frankly. Mr. Crenshaw. Well, thank you very much. Mr. Serrano. COURT STAFFING LOSSES Mr. Serrano. Thank you so much, Mr. Chairman. Before I ask the question, I just want to comment on this whole thing of where to hold the 9/11 terrorist trials. That became such an emotional and a very serious issue in New York City. And at that time--and still today--I was the only member of the New York City delegation, perhaps the New York State delegation, who was in favor of having the trials in New York. I said this was the scene of the crime, if you will. We have nothing to hide. We shouldn't fear anymore, you know. So I thought it was part of the healing process to say we can do it here. Interestingly enough, at the end of the day, Mr. Chairman, the reason given by city officials in consultation with Federal officials for not holding it was the impact it would have on local businesses with traffic and so on, which kind of struck me as an interesting reason not to hold a trial there. Let me ask one last question. Judge Gibbons, your testimony discusses the loss of 1,800 staff over the last 18 months due to budget pressure. And this is before the sequester. Can you please provide a breakout of how these staff losses have impacted each program within the judiciary? Have these staffing losses been through attrition or have you had to let staff go? And another part of another question is, in your testimony, you decided not to request funding to replace the 1,800 employees that were lost over the last 18 months as a result of the budget. That was not easy, but how did you come to that conclusion? So how did you, first, let go of the 1,800, and then why did you decide not to ask to replace them? Judge Gibbons. The vast majority of the losses were due to normal attrition. We did offer buyouts, voluntary separation incentive payments and early retirement in order to minimize forced downsizing. Had we not taken those two steps, the losses would not, in fact, have been mostly due to normal attrition. The result of that, of course, is that each of the judiciary entities and units affected by the staffing loss-- district courts, bankruptcy courts, probation, pretrial services offices, appellate courts--they are all operating at levels that are somewhat difficult. And, so, yes, it was hard to make the decision about the budget request with which we came forward. We have always tried to represent what the needs of the judiciary are. We have also tried to draw a line between the ebbs and flows of the appropriations process, of which the 1,800-plus was on the extreme end of down, and something like sequestration, which is not related to what our needs are and is simply an indiscriminate way of attempting to reduce the deficit. And so we tried hard to be constructive, realistic in our work with the subcommittee but also represent the judiciary the best we could. And that seemed to us to be, at the end of the day, the best way to come forward with our request. We do not tell you that the loss of staff up to this point has been easy. [GRAPHIC] [TIFF OMITTED] T0953A.102 Mr. Serrano. Well, I thank you, we thank you for your testimony today, for your service. Are you a lawyer, Mr. Chairman? Mr. Crenshaw. I used to be. Mr. Serrano. Okay, I am not a lawyer, so a lot of---- Mr. Crenshaw. It is hard to stop being a lawyer. Mr. Serrano. You are a lawmaker now. Mr. Crenshaw. Yes, I am a lawmaker now. Mr. Serrano. So a lot of this is fascinating to me, how the courts work, and throughout the years I have tried to learn more and more about it. I am not a lawyer, although I did play a judge on ``Law and Order'' once, and I do not know if that qualifies me. Season five, by the way, if you are interested. The name of the episode is ``The Guardian.'' Interestingly enough, I have no idea what it is like to be a judge. But I tell you, the hardest part of playing a judge on TV was I tripped over the robe so many times. It was pretty embarrassing on the set. So they just shortened it, and I was fine after that. Judge Gibbons. Well, I will not share with you my most embarrassing moment as a judicial officer. I would share it with you privately, but I am not going to put it on the record in this hearing. Mr. Serrano. Well, I thank you for your service. Thank you so much. Mr. Crenshaw. Well, the committee thanks you, too, for being here today. And we thank you for the work that you do, and the fact that you are trying to do it more efficiently and more effectively is very important. So thank you very much. Judge Gibbons. Thank you very much for the opportunity to be here and to work with the subcommittee. We appreciate it. Mr. Crenshaw. The hearing is adjourned. [GRAPHIC] [TIFF OMITTED] T0953A.103 [GRAPHIC] [TIFF OMITTED] T0953A.104 [GRAPHIC] [TIFF OMITTED] T0953A.105 [GRAPHIC] [TIFF OMITTED] T0953A.106 [GRAPHIC] [TIFF OMITTED] T0953A.107 [GRAPHIC] [TIFF OMITTED] T0953A.108 W I T N E S S E S ---------- Page Arberg, Kathy.................................................... 1 Breyer, Stephen.................................................. 1 Cline, Kevin..................................................... 1 Gibbons, J.S..................................................... 107 Hogan, T.F....................................................... 107 Keenan, Clifford................................................. 31 Kemp, Gary....................................................... 1 Kennedy, Anthony................................................. 1 Minear, Jeffrey.................................................. 1 Satterfield, L.F................................................. 31 Talkin, Pamela................................................... 1 Ware, N.M........................................................ 31 Washington, E.T.................................................. 31