Preliminary Report on the Effect of Judicial Budget Cuts On
The U.S. District Court for the Southern District of New York
Prepared by the
Task Force on Judicial Budget Cuts
New York County Lawyers’ Association
This report was approved by the Executive Committee of the New York County Lawyers’ Association on August 25, 2011.
Reflecting the historic commitment of the New York County Lawyers’ Association (NYCLA) to access to justice for all New Yorkers and to the effective administration of justice by the court system, the NYCLA Board of Directors, on the recommendation of newly elected President Stewart D. Aaron, established a Task Force on Judicial Budget Cuts on June 13, 2011. Its mandate was to prepare a preliminary report within 60 days, assessing the impact of judicial budgets cuts on New York State courts, as well as the effects of prior and anticipated budget reductions on the U.S. District Court for the Southern District of New York.
This Preliminary Report presents the Task Force’s initial findings and observations with respect to the Southern District of New York. The Task Force plans to continue to assess budget reductions by holding hearings in the fall and issuing additional reports.
Highlights of the Preliminary Report
- Lack of funding has resulted in delays in construction of a visitor’s screening pavilion outside the Daniel P. Moynihan Courthouse public entrance; and
- Lack of funding has resulted in delays in relocation and protection of the air intakes.
- Fiscal year 2011 saw budget cuts of 7.6%, resulting in reductions in non- personnel spending; and
- Further budget reductions are anticipated for fiscal year 2012 that may require non-judicial personnel reductions of up to 15%.
- In the event of a shutdown, “non-essential” personnel would be furloughed.
While the announced budget cuts for New York State courts have attracted a great deal of attention and comment over the past several months, little, if any, notice has been paid to funding issues in the local federal courts. Indeed, the main focus of media attention regarding the federal courts has concerned updates relating to the status of various judicial nominees in the U.S. District Courts for the Southern and Eastern Districts of New York, which might lead to the erroneous observation that, absent a federal government shutdown, all is well in the federal courts.
Task Force members met with the Chief Judge of the Southern District of New York, Hon. Loretta A. Preska, and the District Executive for the SDNY, Edward Friedland, who were very helpful and candid with regard to their concerns. We learned that the Southern District of New York also has been dealing with significant budget reductions over the past year and that additional deep cuts are anticipated for the next fiscal year, which would result in a large number of personnel reductions in the non-judicial operations of the Court. Moreover, we also understand that vital security initiatives in the Daniel P. Moynihan Courthouse at 500 Pearl Street have been delayed for a number of years due to a lack of funding and that the timetable for completion of these projects remains uncertain because of ongoing budget issues. As explained below, these issues pose important challenges for the smooth operations of the Court and, even more importantly, the safety and security of court personnel and the public, especially in a courthouse that is an obvious terrorist target and that has an average of 2,500 or more visitors per day.
As the federal district court in whose jurisdiction both the first World Trade Center attack in 1993 and the September 11th attack occurred, and in which a number of high-profile terrorism cases have been prosecuted, the SDNY has unique security concerns and challenges. In view of that, we were surprised to learn that long-planned measures urged by the Court to correct serious security issues at the Moynihan Courthouse have been delayed because of lack of money. As visitors to that courthouse know, security screening in the building is currently housed inside the front and rear entrances of the building itself. For obvious reasons, best practices dictate that such security screening should be done outside the building. In addition, the air intakes for the building are susceptible to biological and/or chemical intrusions.
As chronicled in a detailed letter that Judge Preska has provided the Task Force subcommittee (a copy of which is attached), as long ago as September 2002, a design was proposed for the construction of a visitor’s screening pavilion outside the building and protection of the air intakes, but the improvements never were implemented due to budgetary considerations. Between 2002 and 2008, the Court undertook what Chief Judge Preska describes as “ad hoc” measures to improve screening of visitors and protection of air intakes, but the fundamental security issues were not addressed.
In 2009, the Court asked the building architects to prepare a design for a security pavilion that would include enhancement of the air-intake system. The design was prepared and fully approved by the Court and other necessary constituencies, but the requisite funding for final design and construction has been delayed by the current federal budget struggles. While the Court remains hopeful that the additional necessary funding for the construction of the pavilion and relocation of the air intakes, as well as funding for additional planned initiatives in the courthouse, will be included in the FY2012 budget, this is obviously a matter of significant concern for court personnel, the local community, the public and the organized bar.
Lack of funding also is having an effect on current court operations. In fiscal year 2011, the SDNY absorbed a 7.6% reduction in its budget allocation from the prior year. By cutting back significantly on non-personnel costs, including postponing new purchases of technology equipment, the Court was able to absorb the reduction without firing staff.
The picture for Fiscal Year 2012 is more gloomy, however. The Court expects a further reduction of 10-15% from its 2011 budget allocation. As a result, the Court is drafting contingency plans that would include overall personnel reductions of upwards of 15% in non-judicial personnel. That includes personnel in the Clerk’s Office, the Probation Office, Pretrial Services and the District Executive’s Office. Those cutbacks would affect parties and attorneys doing business in the Court and, as explained at length in Chief Judge Preska’s letter, raise significant public safety issues regarding the supervision of individuals on probation and those who have been released pending trial.
We discussed briefly with the Chief Judge and the District Executive what would happen in the event of a government shutdown—a possibility that was of course on everyone’s mind as the debt-ceiling drama unfolded in Washington, D.C. While the immediate crisis has passed, we understand that, in the event of a shutdown, the Court would remain open and discharge its constitutional duties, with non-judicial personnel deemed essential likely getting paid on a deferred basis, but with all “non-essential” personnel being furloughed. (Judges would continue to be paid as mandated by the Constitution.) It is likely that civil division attorneys in the Department of Justice would be deemed non-essential and thus furloughed (with the result that the Court would have to determine how to extend deadlines in its cases without impeding progress toward resolution).
The members of the Task Force have worked diligently over the past two months to prepare this preliminary report and the previously issued Preliminary Report on the Effect of Judicial Budget Cuts on New York State Courts. The Task Force will conduct a more in-depth and comprehensive investigation over the next several months, which will include a public hearing at NYCLA in the fall, and the preparation of a more comprehensive report on the impact of the budget cuts on the administration of justice.
NYCLA Task Force on Judicial Budget Cuts
Hon. Stephen G. Crane, Co-Chair
Michael Miller – Co-Chair
Morrell I. Berkowitz – Co-Chair, Supreme Court Committee
Hon. Herman Cahn – Former Justice of the Supreme Court, NY County
Gerald L Carp – Former Co-Chair, Estates, Trusts and Surrogate’s Court Practice Section, former NYCLA Board Member
Vincent T. Chang – Former NYCLA Board Member
Brian P. Corrigan – Co-Chair, Estates, Trusts and Surrogate’s Court Practice Section
Sylvia Di Pietro – Co-Chair, Estates, Trusts and Surrogate’s Court Practice Section, current NYCLA Board Member
Joseph M. Drayton, Immediate Past President, Metropolitan Black Bar Association, current NYCLA Board Member
Lucas A, Ferrara – Former Co-Chair, CLE Institute & Communications Committee, former NYCLA Board Member
Arthur Norman Field, NYCLA Past President
Harvey Fishbein – Former President, N.Y. Criminal Bar Association, former NYCLA Board Member
Hon. Helen E. Freedman – Co-Chair, NYCLA Judicial Section, Justice, App. Div. 1st Dept.
Brad W. Jarman ~ Co-Chair, Family Court & Child Welfare Committee
Samuel E. Kramer – Former Co-Chair, Supreme Court Committee
Mina MacFarlane – Former Co-Chair, Family Court & Child Welfare Committee
Lawrence A. Mandelker – Former Chair, Election Law Committee
Harold A. Mayerson – Former Chair, NYCLA Parent Education and Custody Effectiveness Program
Sayward Mazur – Former Co-Chair, Construction Law Committee, former NYCLA Board Member
Michael J. McNamara – Former Chair, Federal Courts Committee, current NYCLA Board Member
Eugene B. Nathanson – Former Chair, Civil Rights Committee, former NYCLA Board Member
Keith Schmidt – Co-Chair, Criminal Justice Section
Robert G. Silversmith – Former Chair, Civil Court Practice Section, former NYCLA Board Member
Hon. Michael R. Sonberg, Acting Justice of the Supreme Court, NY County
Hon. George Bundy Smith – Former Judge of the NYS Court of Appeals, current NYCLA Board Member
Thomas M. Smith – Co-Chair, Supreme Court Committee
Alison Wilkey – Co-Chair, Criminal Justice Section
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
500 PEARL STREET
NEW YORK, NEW YORK 10007-1312
|LORETTA A. PRESKA
August 22, 2011
Michael McNamara, Esq.
Seward & Kissel LLP
One Battery Park Plaza
New York, NY 10004
Re: Impact of Proposed Budgetary Cuts
It was good to meet with you and your colleagues from the New York County Lawyers Association Task Force recently, I write to follow up on our conversation regarding the Court’s urgent need for funding for the long-planned Security Screening Pavilion/Backfill Project and the effect on the Court of the anticipated budget cuts.
Security Screening Pavilion
As we discussed, the Moynihan Courthouse was planned in 1988 before the first World Trade Center attack in 1993. Thus, provisions were not made for any kind of significant security screening. When screening was instituted after September 11th, it was makeshift and, of necessity, conducted within the building. Not surprisingly, for years, the United States Marshals Service and the Federal Protective Service have criticized the Southern District of New York for conducting security screening inside the Moynihan Courthouse.
After September 11th, the SDNY received funding from the Administrative Office of the United States Courts to improve the safety and security at the Moynihan Courthouse, The contemplated infrastructure upgrades included enhancing the air intake system protections against biological and/or chemical intrusions and constructing a visitors screening pavilion. In September 2002, at the request of the Court, Kohn Pederson Fox Architects (“KPF”), the original architect for the Moynihan Courthouse, proposed a pavilion design that included air intake protection. The proposed improvements were not implemented due to budgetary considerations.
Between 2002 and 2008, the Court undertook a number of ad hoc measures to improve the screening of visitors and protection of air intakes. The current antiquated security screening system never contemplated the need to x-ray all parcels and scan all individuals. Nevertheless, the only enhancement to the Court’s visitor screening occurred in 2003, when an additional make-shift screening station was installed at the Worth Street entrance. While the additional screening station helped to move people into the Courthouse more quickly, delays have mounted because of increased traffic due to high profile proceedings. Recently, a 2009 traffic study reported an average of 2,500 daily visitors, with substantial spikes on many days.
In 2009, the Court asked KPF to prepare a design for a pavilion to accommodate a visitor queue and security screening equipment. The design also proposed to enhance the air intake system to ameliorate the security risk. The pavilion design was approved enthusiastically by the Court Security Committee, which included the Marshal, the United States Attorney and other representatives of the law enforcement community. It was also accepted by GSA, including by its Chief Architect, and a peer review.
KPF’s design for the security screening pavilion proposal was incorporated in a prospectus-level backfill project that includes other alterations to the Courthouse and was part of the Administration’s FY 2011 budget The full prospectus Resolution before the Committee included alterations to interior areas of the Courthouse and totaled $28 million. The estimated pavilion cost within the prospectus project for final design and construction (and design of the backfill space) is $11 million.
GSA was ready to let a design build contract in March, but the budget situation has delayed it. GSA was allocated $280 million for repair and alteration in the FY 2011 budget, and the Pavilion Project received $2 million for final design with the balance for construction to come in fiscal 2012.
The need for a security screening pavilion outside the Moynihan Courthouse cannot be overstated, particularly in light of such events as the murder of a Court Security Officer at the federal courthouse in Las Vegas and the high profile cases prosecuted here, including terrorists (e.g.2, United States v. Ghailani (convicted of the East Africa Embassy bombings and the only Guantanamo detainee to be tried in the United States), United States v. Affia Siddiqui (convicted of assaulting U.S. soldiers in Afghanistan; her sentence of 86 years caused rioting in Pakistan)), international arms traffickers (e.g., United States v. Viktor Bout (charged with various terrorism offenses arising from his alleged agreement to supply an arsenal of military-grade weapons to individuals purporting to represent the FARC) and organized crime and gang cases (e.g., United States v. Daniel Marino (fourteen Gambino family members and associates convicted). The pavilion will enhance the safely of building occupants by protecting the air intakes and separating visitors from court personnel. Because the pavilion will be outside the main structure of the Courthouse, explosive devices and threatening individuals can be interdicted before they enter this one million square foot facility that houses more judges than any other courthouse in the United States. Moreover, the pavilion will expedite the security screening process and increase the queuing capacity to 250 so that visitors will not have to wait in line outside in inclement weather.
The Backfill Project is part of the nearly-complete renovation of the Thurgood Marshall Courthouse at 40 Centre Street and had always been anticipated. It will reconfigure space in the Moynihan Courthouse (currently temporary chambers forjudges displaced by the Thurgood Marshall renovations) to receive Probation and Pretrial back into the Moynihan Courthouse. If this project is not completed timely, we will continue paying in excess of $5 million in annual rent together with another $500,000 in security costs while approximately 95,000 square feet of space in the Moynihan Courthouse is unused.
Impact of Proposed
Budget Cuts on Court Operations
Below are descriptions by each unit head of the effects of the proposed cuts on the Court units.
From the Chief Probation Officer
The Probation Department has been preparing for the significant financial cuts expected in FY 2012 by reducing our officer staff through attrition. Dating back to November of 2009 and through the end of this fiscal year, we will have left 15 probation officer positions unfilled. This has had the following impact on our New York City office:
Supervision case loads for officers now stand at an average of 56. This caseload is expected to rise to 61 by the end of September, due to the transfer of an officer to our presentence division and the expected transfer of an officer to another district. If we had been able to replace the eight officers from the supervision division, we would have been able to reduce case loads to a level of 43 cases. A caseload closer to 43 has made it possible for the Southern District of New York to have one of the lowest supervision revocation rates in the country over the past years. As evidence of this, I point to the following statistics:
With the increased caseload, the revocation rate will undoubtedly rise. The increased caseload will also affect the probation department by limiting the time which is available to conduct field work and court-ordered searches. The value of these searches cannot be overestimated. Over the past year, probation officers conducting searches have recovered firearms, ammunition, drugs, and child pornography. These seizures all resulted in violations of supervision release and, in at least one case, a new federal child pornography charge. Thus, the increased caseloads will result in more crime going undetected, including child pornography weapons and drug offenses.
Presentence report caseloads have also risen precipitously over the past year and, based upon an increase in pretrial services cases, are expected to continue rising. For the month of June, 2010, officers in the presentence division received an average of 4.7 presentence assignments. For the month of June, 2011, officers in the presentence division received an average of 5.8 presentence assignments, which represents an increase of 19%. This division will lose two officers by the end of September, as they have accepted early retirement offers. An officer will be transferred from the supervision division, but this will not fully alleviate this increased burden on this division. If we had been able to replace the seven officers from the supervision division, we would have been keep the assignment level at approximately 4.7/month. These numbers are all higher than the national average for presentence assignments, which is fewer than 4 assignments per month.
Inevitably, the increase in presentence report assignments will result in sentences having to be postponed in order to allow the Probation Department to complete its work. This delay will surely affect the speed with which justice is dispensed out and will cause other problems, such as overcrowding at MCC as defendants await sentencing.
In sum, public safety will likely be adversely affected by these projected cuts in that:
1) Increased caseloads per officer will lead to less stringent supervision with the attendant increase in criminal acts by these defendants and an increase in revocation rates;
2) Increased caseloads will lead to less time for field work such as searches of defendants’ premises which in turn will lead to more undetected crime, including child pornography, drugs and weapons offenses; and
3) More presentence report assignments per officer will lead to delayed sentencings with the attendant overcrowding of the MCC and MDC.
From the Chief Pretrial Services Officer
With the projected 15% cuts, Pretrial Services will not be able to make payroll without supplementing it from other accounts and, at the same time, implementing a reduction in staff and possible furloughs. Any of these measures will have a severe impact on our organization.
If we supplement our payroll from other accounts, we will have to be very conservative in our drug treatment placements resulting in fewer evaluations and less in-patient treatment as these tend to be very costly. We will have to reduce urine testing because we will have fewer staff to administer the tests. These measures will result in a reduction of oversight of defendants at risk for drug use and a reduction in needed drug treatment That, in turn, will undoubtedly lead to an increase in undetected drug usage among defendants as well as the potential for their committing additional crimes.
Money moved to payroll from various equipment accounts will prohibit us from purchasing any new or replacement equipment to enable us to do our job better, for example, in cyber crime monitoring technology and associated hardware. It will also prevent us from staying current with emerging technologies as well as eliminating available training. These steps will decrease our ability to monitor cyber crime, including child pornography, again leading to the possibility of the commission of additional crimes by our defendants with the attendant collateral damage to victims. In addition, if there are any unforeseen equipment emergencies, for example, broken or damaged equipment or cars, we would not be able to replace that equipment.
Reducing staff and furloughs will have a direct effect on public safety. It is likely that each officer’s caseload would increase from an average of 50 cases to an average of 70-75 cases, thus decreasing the effectiveness of our supervision. It will decrease the number of officers available to supervise all defendants, including sex offenders, to answer our EM calls and pagers and to write bail reports and respond to law enforcement calls concerning our defendants. Even if furloughs are staggered, our duty officers and supervisors will be overburdened with caseloads much too high to manage properly, again setting the stage for the commission of additional crimes by our defendants. Supervision of defendants on home confinement, that is, of defendants who pose more risk, will be particularly hard hit because our home confinement caseloads are already high with our Manhattan specialists carrying over 50 cases when the recommendation for these caseloads is 25.
With these staff reductions and furloughs, we will not be able to maintain the standard of thorough bail investigations that judges have come to expect. This lack of resources might lead to our missing facts that would indicate a danger to the community or, if we are unable to verify facts obtained from the defendant, making us unable to recommend release and thus increasing detention rates with the associated increase in costs.
These increased pressures and demands on our officers will also adversely affect their morale. The demands of Pretrial Services can be overwhelming under the best of circumstances. Officers must be extremely flexible because there is no way to know what the volume will be on any given day. With fewer people, these demands will be intensified.
In addition, the fact that staff is not likely to receive any COLAs or discretionary step increases in the near future will further decrease morale. It will also likely cause some experienced staff to look for employment outside of our field or with agencies that are not hard hit as we are. This will also hinder us from getting good candidates, and, in any event, we will lose the benefit of these experienced officers.
In sum, public safety will likely be adversely effected by these projected cuts in that:
1) We will be able to give less attention and less treatment to our many defendants in need of drug evaluation, testing and treatment;
2) We will not receive equipment and upgrades to permit us to monitor our defendants to detect additional crimes, including child pornography;
3) Our officers’ average caseload could rise some 50%, making us less able to monitor our defendants, especially those on home confinement, and less able to respond to emergency calls and other inquiries from law enforcement;
4) Our ability to do thorough bail investigation will be diminished leading to either missed indicators of a danger to the community or a higher rate of retention due to our inability to investigate facts asserted by the defendants; and
5) Finally, morale in the office will be seriously diminished, and we may lose our most experienced officers.
From the Clerk of Court
Records & Pocketing
Delays in docketing will be felt in all cases, civil and criminal. These will be particularly hard felt because the Clerk’s Office has recently achieved same-day docketing for all items filed by 5 pm.
Notices of Appeal will not be filed in a timely manner, thus creating case processing challenges and delays. This is so because Notices of Appeal are filed in paper format, and the Court staff has to process each Notice manually. Because docketing starts and stops the appeals clock, so to speak, docketing delays may result in delayed criminal proceedings. Criminal proceedings are particularly time sensitive because any delay may have the potential to violate a defendant’s right to a speedy trial.
With respect to quality control and statistics, there will be delays in providing statistical reports, and the auditing process will be delayed. The Court will be unable to audit all internal user docket entries, meaning judges’ orders. Thus, any errors in deadlines and text entries will no longer be immediately amended but will remain on the docket until such time as staff can identify the error for correction. In addition to internal docket entries, external docket entries will not be audited, and thus those errors will also remain on the docket until such time as staff can identify the deficient filing and notify the attorney.
There will be delays in docketing of magistrate cases, as well as delays in processing the high volume of paperwork associated with arraignments. Delays in processing arraignment paperwork will mean delays in the actual arraignment of defendants. Those delays, in turn, will mean longer waits for prosecutors, defense attorneys and families awaiting arraignments with the attendant costs.
Courtroom deputies, who provide invaluable service to judges and the court overall, will face a number of challenges. The projected cuts will mean delays in scanning and filing of orders, delays in scheduling and holding court proceedings, and delays in processing the paperwork generated from court proceedings.
Ordinarily, courtroom relief deputies are provided to visiting judges. The Court will be unable to do so in the face of these budget cuts, This could have a negative effect on the number of judges visiting the SDNY, resulting in longer disposition times. Visiting judges provide great relief for the flooded dockets of many SDNY judges. Courtroom relief deputies are also used by SDNY judges in the event that the permanent deputy is absent from the court. The inability to obtain a relief deputy would result in postponement of proceedings and further backlog the calendar.
The effects of reduced staffing include delays in processing jurors for trial dates. As a result, the number of trials scheduled per week will be reduced. Processing juror payments, which is now done within a few weeks of service, will be extended an additional month past the date of service.
Interpreters fulfill an essential due process function in the court, and the availability of interpreters helps move criminal cases toward disposition. Budget cuts will have the effect of delays in interpreter service for the court, pretrial, probation, and counsel, thus delaying every step of the criminal process and exacerbating the crowding at the MCC and MDC. The delays caused by limited funds to pay contract interpreters will have serious repercussions, particularly with respect to due process rights of newly-arrested individuals.
Budget cuts will impede the case assignment process as well The procedures involved in reassignment of cases, transferring cases to new judges and receiving and sending cases from and to other districts will see a marked slowdown, all to the detriment of speedy and efficient resolution.
Effects on the Public
While the aforementioned challenges will certainly have a trickle-down effect on the public, there are certain areas where the delays and alterations in court administration will be immediately noticed and acutely felt by the public.
The Attorney Services/MDL/Case Assignment/ECF Help Desk Unit provides support for HCF to the public, creates and manages all ECF logins and transfers, receives all inter-district case transfers, manages the MDL dockets, and processes applications to the SDNY bar and pro hac vice filings. All of these will be delayed. There will be a suspension of implementing new versions of CM/ECF, in implementing new procedures, such as text only orders, and in responding to modification requests and correcting ECF system problems. The public has come to depend on the CM/ECF system, and any delays or difficulties in accessing the system will have a tremendous effect on the Court’s constituents.
The pro se office of the SDNY handles a huge number of cases and filings, and the pro se office staff assists litigants in various time-intensive ways. The following services will be delayed by the proposed budget cuts:
1) Processing change of addresses for pro se litigants;
2) Mailing orders, forms, docket sheets, instructions, information, and manuals to pro se litigants;
3) Scanning and docketing pro se filings;
4) Mailing Rule 4 service packages to pro se litigants; and
5) Answering procedural questions from pro se litigants.
The CJA Unit is responsible for generating, auditing, entering, and updating all CJA vouchers submitted by CJA attorneys and service providers. At the moment, vouchers are processed within 48 hours. With the proposed changes, processing of vouchers will be delayed by at least 5 days. After vouchers are submitted, checks are mailed within 4-6 weeks. A conservative estimate projects that this process will be delayed by at least 2 weeks. This would be compounded and further delayed if the voucher requires circuit approval.
Finance is yet another realm where the public will see changes in administration and great delay. For example, receipts and filings at the intake window will not be processed on the same day. Delays in opening new cases, filing appeals, and receipting money for Court-provided services will follow as many court services require fees prior to initiation. Other payments the court receives, such as checks and money orders for fine and restitution payments, will not be processed the day of receipt and could pose challenges in complying with Court orders in a timely manner.
In sum, every aspect of case resolution will be delayed:
1) Case assignments and reassignments will be delayed;
2) Quality control of docket entries will be decreased, and thus errors will not be promptly corrected;
3) Fewer courtroom deputies and interpreters will delay proceedings, both civil and criminal;
4) Interactions with counsel in connection with, for example, ECF logins, MDL dockets and the help desk will be delayed, and
5) All financial activities will be delayed such as processing of CJA vouchers and restitution payments as well as payments to jurors.
Thank you again for your good work on behalf of the Court.
Best personal regards.
Loretta A. Preska
cc: Stewart Aaron, Esq.
Michael Miller, Esq.