Painstaking-Budget cuts could cripple courts, federal judge says

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By Tom Kirvan

Legal News

Speaking in metaphorical terms during an interview last week, Gerald Rosen offered a budgetary view of the federal court system from "30,000 feet," a vantage point that gives a glimpse of the current fiscal pain that the judiciary is experiencing in the wake of the sequestration cuts.

Suffice to say, even from that altitude the picture is anything but pretty, framed as it is by Congressionally mandated belt-tightening that is "undermining our ability" to deliver the "court services that the public has come to expect," according to Rosen, chief judge of the U.S. District Court for the Eastern District of Michigan.

While not prone to hyperbole, Rosen believes the consequences of continued budget cutting will be "devastating" if unchecked in the years ahead.

"The impact of these cuts on the public will be dramatic," Rosen said during an interview in his chambers last Friday, just weeks after he publicly stated that the federal justice system is in "grave jeopardy of being severely, perhaps irreparably, damaged and put at risk of not being able to perform its core functions."

The Eastern District court system absorbed $1.9 million in cuts during fiscal year 2012, said Court Administrator David Weaver, whose job responsibilities also include serving as Clerk of the Court. Over the past two years, the court has fallen 63 positions below authorized staffing levels in the District Clerk's Office, Probation Department, and Pretrial Services Agency, Weaver said.

"The projected payroll shortage for Fiscal Year 2014 for the District Clerk's Office, Probation Department and Pretrial Services is $1 million and a shortage of $500,000 in Probation and Pretrial law enforcement funding," Weaver indicated.

The net effect of such budget shortages, Chief Judge Rosen said, will be the likelihood of unpaid furlough days for court employees beginning this fall when the new federal fiscal year rolls around.

"It's too early to determine how many furlough days we are talking about, but if the budget situation doesn't improve, the number may be significant," Rosen said. "What makes it particularly difficult is that we don't know yet what the federal budget and our allocated resources will be, so in effect, we are operating in a vacuum until those numbers come in from Congress."

The fiscal uncertainty is particularly troubling to Rosen, who, along with his colleagues on the federal bench, takes special pride in an American justice system that is "admired and respected throughout the world" and has served as a "role model" for other countries to follow.

"As one of the three branches of government, the federal judiciary operates nationally on a budget that is less than two-tenths of one percent of the entire federal budget," Rosen explained. "Put another way, less than 19 cents of every $100 in federal tax money is spent on the justice system. That said, we are accustomed to being excellent stewards of the federal tax dollar and have always worked hard to manage our resources. But what we are facing now, in many respects, is uncharted territory for all of us."

For the Eastern District, which is one of the 10 largest federal court operations in the nation, the financial impact already has been daunting, forcing a 14 percent reduction in personnel costs this year and a 20 percent cut in other court costs, Rosen said. This is for a district that bisects the state, stretching geographically from Metro Detroit to the northern tip of the Lower Peninsula and including courthouses in Detroit, Ann Arbor, Flint, Port Huron and Bay City.

"We serve a population of more than 6 million residents, and yet we are operating on a budget that is roughly $2 million less than last year and with 63 fewer employees than authorized," Rosen said. "It's a funding formula that can't be sustained without severely affecting the quality of services we offer."

And those services extend far beyond what happens in "court every day," according to Rosen, noting a myriad of functions that include probation, pretrial services, the Federal Defender Office, sentencing, grand jury and jury operations, along with requirements of the Criminal Justice Act that governs the constitutionally protected right to counsel.

"These cuts already have taken a toll on law enforcement funding in the areas of probation and pretrial services," Rosen indicated. "Some of the services impacted include drug testing, drug treatment programs, mental health services, tethering, and sex offender monitoring. Our probation and pretrial personnel are assigned the task of supervising offenders who generally require intensive monitoring, both for their own protection and the protection of the public at large. When budget cuts compromise our ability to fund those services, we run the risk of endangering the public, threatening their safety."

The tools that "our pretrial and probation officers" use serve as "trip-wires" to determine if offenders are "lapsing back into dangerous conduct" and criminal activity, Rosen said.

"If we don't have those trip-wires at our disposal, then invariably we will see these offenders go off the rails again with the potential of tragic consequences," he said, calling the cuts in such services "penny wise and pound foolish."

For instance, said Rosen, "if we do not have the funding to supervise offenders in the community," many will have to be jailed at an annual cost ranging from $21,000 to $34,000 per prisoner, up to 10 times the expense of community supervision.

"Budget wise, it makes far greater sense to supervise these offenders outside a prison setting, which makes these cuts all the more perplexing," Rosen said.

Members of the federal bench also are bracing for staffing cuts in the U.S. Marshals Service, which provides security at courthouses nationwide.

"The Marshals Service, which comes under the wing of the Department of Justice, is nevertheless a vital part of our court federal court system, helping to ensure the safety of court personnel and all those who come through the courts each day," Rosen explained. "It's a huge task for them and one that can't be sacrificed without running a greater risk of security being breached."

Rosen also expressed concern about an expected 23 percent reduction in funding for the Federal Defender Office for fiscal year 2014, which comes on top of a 10 percent cut this year.

"Quite simply, a cut of this magnitude will be devastating, not only to indigent defendants, but to the ability of judges to insure that these defendants receive adequate, effective legal representation and a fair trial," Rosen wrote in a recent op-ed piece for The Detroit News.

"In short, one of the most fundamental constitutional foundations of our nation's criminal justice system will be extremely eroded," he added.

Federal defenders, he noted, have played major roles in a number of high profile cases that have been tried in the U.S. District Court over the past few years, including the Detroit corruption trials and the prosecution of the "Underwear Bomber," Umar Farouk Abdulmutallab, who attempted to blow up a Northwest Airlines flight as it approached Detroit on Christmas Day, 2009.

Rosen, who became chief judge in January 2009, said the continued budget uncertainty has an additional cost of dampening the morale of court personnel, although he has kept them abreast of the financial situation through a series of district-wide memos and periodic staff meetings.

"We have an incredibly dedicated staff here, but the likelihood of further cuts has people understandably on edge," Rosen acknowledged.

The Eastern District bench currently includes 22 judges, 11 of whom have reached senior status, according to Court Administrator Weaver. Four vacancies on the bench are expected to be filled in the coming months, Rosen indicated, based on presidential nominees sent recently to the U.S. Senate for approval. The nominees include current U.S. Magistrate Laurie Michelson; Wayne Circuit Judge Linda Parker; Judith Levy of the U.S. Attorney's Office in Detroit; and Matthew Leitman, an attorney with Miller Canfield.

"Our senior judges provide incredibly valuable services to the bench, in effect working for free since they all could have retired at full salary," Rosen said. "Ten of the 11 senior judges have full caseloads, both criminal and civil.

"Once confirmed by the Senate, the four nominees to the bench will allow us to be at full strength to handle as active, diverse, and challenging a docket as there is in the country," Rosen noted.

The federal courthouse in Detroit, of course, has been back in the spotlight of late as the site of proceedings for the city's bankruptcy filing. Rosen, now in his 24th year on the bench, is reportedly under consideration to be appointed by U.S. Bankruptcy Judge Steven Rhodes as a settlement mediator for disputes arising out of the Chapter 9 filing, although Rosen declined to comment on the matter.

In the meantime, he will remain focused on the budgetary challenges ahead.

"Through prudent planning and effective management, we've been able to stay ahead of the curve in dealing with these budget issues," Rosen said. "Some federal courts around the country already have had to enact furlough days and building closings on certain days.

"I don't believe that any of us are alarmists or want anyone to infer that the 'sky is falling," Rosen said of the court's budget crunch. "Still, the fact remains that continued staff and operational cuts are not sustainable and will come at a high cost - threatening the very ability to carry out our core constitutional mission."

Published: Mon, Aug 12, 2013

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