NYCLA Task Force on Judicial Budget Cuts
Task Force Co-Chairs Hon. Stephen G. Crane and Michael Miller, Esq.
Written Testimony Presented at the Hearing
NEW YORK COUNTY LAWYERS’ ASSOCIATION
TASK FORCE ON JUDICIAL BUDGET CUTS
PUBLIC HEARING: DECEMBER 2, 2011
TESTIMONY OF LAWRENCE K. MARKS AND RONALD YOUNKINS
Earlier this year, the Unified Court System’s 2011-2012 fiscal year proposed budget was reduced by $170 million. This reduction necessitated a range of cuts in court system programs, services and expenditures, as well as the laying off of approximately 400 employees. This testimony addresses the background leading up to the $170 million reduction, the process the court system undertook to identify the cuts that ultimately were made, the impact of those cuts on court operations and the outlook for the court system’s budget for the next fiscal year.
Under the State Constitution, the Judiciary is required to prepare a proposed annual budget and submit it to the Governor by December 1, four months before the start of the state’s fiscal year on April 1, The Governor must then submit a proposed Executive Branch budget along with the Judiciary’s proposed budget to the Legislature in January. In submitting the Judiciary’s proposed budget to the Legislature, the Governor has no authority, to modify the Judiciary’s proposal, but the Governor may formally comment on the proposal. Upon receiving the Judiciary’s proposal, the Legislature may make whatever changes it deems appropriate, and the budget then takes effect upon the Governor’s signature.
On December 1,2010, the Unified Court System submitted its budget proposal for the 2011-2012 fiscal year to then-Governor David Paterson, requesting approximately $2,7 billion, which represented a slight increase from the Judiciary’s 2010-2011 budget, Shortly after taking office on January 1, 2011, Governor Andrew Cuomo, as part of his effort to address an anticipated $ 10 billion deficit in the upcoming year’s state budget, announced that he was directing Executive Branch agencies to reduce their individual budget requests by 10 percent. The Cuomo administration made a similar request of the Judiciary. The Judiciary declined to reduce its budget proposal by that amount ($270 million), a reduction that could well have necessitated over 1,000 layoffs. Instead, after re-evaluating the court system’s budgetary needs for the upcoming year, Chief Judge Lippman decided to amend the budget request the Judiciary had submitted on December 1 and reduce it by $100 million. Before doing so, however, we had determined that the court system budget could be reduced by that amount most likely without the need to lay off any employees. At the same time, a strict hiring freeze was imposed in the court system.
Unfortunately, in the process leading up to final legislative adoption of the fiscal year 2011-2012 state budget, the Judiciary’s proposed budget was reduced by an additional $70 million, for a total cut of $170 million.
Implementation of the Budget Cats
Once the magnitude of the reduction in the Judiciary’s budget became clear, we quickly made decisions about how to implement the necessary cuts. Although it was immediately apparent that layoffs were now unavoidable, the guiding principle in implementing budget cuts was to take every step we possibly could to minimize the number of employees who would have to be terminated. This was not a simple endeavor, because over 90 percent of the court system’s budget consists of personnel costs, and therefore only a relatively small percentage of funds in the budget may be cut without impacting employee positions. Nevertheless, initially we focused on programs, services and other expenditures that could be eliminated or reduced with no impact, or at least a minimal impact, on court operations. Some of the programs, services and expenditures falling into this category were:
- The Lawyers Assistance Trust, which supports local bar association programs that offer counseling and other services to members of the legal community with alcohol and substance abuse problems. The Lawyers Assistance Trust is continuing its work, but it no longer provides funds to support the local bar association programs.
- The Parent Education program, which provided funding to non-profit groups to instruct parents in divorce proceedings on the potential impact of the court proceedings on their children. Parent education classes are still being provided, but the court system is no longer funding the programs and therefore the classes are not as widely available.
- The children’s centers, which are located in many courthouses throughout the state to provide child care for the children of litigants when they come to court. Although many of the children’s centers, particularly in the Family Court, continue to be funded, a number have closed or are operating with reduced hours.
- The purchase of law books and other legal reference materials has been reduced in courthouses throughout the state, in favor of less costly online legal research services.
Next, we focused on eliminating or reducing programs, services and other expenditures that, even though their elimination or reduction might impact on court operations, could be done so in lieu of laying off court employees. Some of the programs, services and expenditures falling into this category were:
- The Judicial Hearing Officer program, which provides valuable support to courts around the state in managing their caseloads. The JHO program has been largely suspended for this fiscal year, A relatively small number of JHOs continue to be paid in Family Court and in lower criminal courts, where the need is the greatest. Commendably, a number of other JHOs are volunteering their services in other courts.
- Because experience has shown that a significant number of prospective jurors who are called for jury service never make it to voir dire or even never are sent out to a courtroom for jury selection, the number who are called for jury service has been reduced, saving a significant amount in juror fees.
- Funding for the court system’s Alternative Dispute Resolution, which supports a largenumber of ADR programs around the state, has been cut in half.
- Court employee overtime, a very large expenditure for the court system over the years, has been reduced by nearly two-thirds from the prior year.
Regrettably, the extensive cuts in these programs, services and other expenditures, all of which provided important benefits to the court system, the bar, litigants and the public, were not enough to meet the $170 million reduction in the Judiciary’s budget, To make up the balance of the total amount that had to be reduced, and despite the fact that we were continuing the hiring freeze, we were compelled to lay off approximately 400 court employees. In preparing to do so, we first gave each of the Administrative Judges a reduced budget allocation for the fiscal year for their respective courts and judicial districts, and requested that they each identify actual positions to eliminate so that they could meet their reduced budget allocation. To assist them in making those determinations, we provided some broad guidelines, such as, for example, to try and minimize the impact of the layoffs on the Family Court and the lower criminal courts, where caseloads and backlogs have been the most burdensome. Once we received these local plans identifying positions for elimination, the individual employees holding those positions with the least seniority were identified and issued layoff notices, In mid-May, approximately 75 employees working in the Office of Court Administration were then laid off, and in early June, approximately 340 employees in the trial and appellate courts were laid off. Under the New York Civil Service Law, certain of these employees were placed on preferred lists, and they will have first preference in being hired back if the court system at some point in the future is able to refill the positions they had held. They will also receive health insurance benefits for up to one year.
Impacts of the Budget Cuts
Given the size of the reduction in this year’s budget, it was impossible to avoid any negative impact on court operations. However, in deciding where reductions would be made, the priority was to minimize the impact on court operations and the public.
For example, while we reluctantly reduced the funding of the children’s center program, we tried to do so in a manner that affected as few families and children as possible. Given the magnitude of the savings to be achieved, it was determined that the Children’s Center program had to be reduced by half, from $2 to $1 million. In close consultation with local court officials and with the operators of the children’s centers, we developed plans that achieved the necessary savings without a corresponding reduction in service to the public. As a result, despite a 50 percent reduction in funding, the number of children served this year has declined by only 30 percent. Clearly, this is an important program, both for families and for the courts, and any reduction in service is regrettable, but with careful planning and collaboration with courts and children’s center staff, the impact has been moderated somewhat.
The impact of the reduction in funding for ADR programs was similarly mitigated through careful planning. Funding for this important program was also reduced by half. Again, there was a dialog with local courts and the ADR providers to figure out how to achieve savings while still providing services. A number of Community Dispute Resolution Centers around the State were closed and the hours of others had to be cut, but the plan ensured that in every part of the State there were still services available, through such means as satellite offices. As a result, the 50 percent reduction in funding has resulted in a 25 percent reduction in the number of cases and clients served.
The reduction in the purchase of print legal materials is another area in which we sought reduction, again with an eye toward minimizing the impact on court operations and service to the public. Obviously any court needs access to statutes, case law and other legal materials. The court system spends more than $20 million a year meeting this need. Well over half of this amount is spent on print materials that are available online, under flat-rate agreements we have with Westlaw, Lexis and other online legal research services. Clearly there is an ongoing need and place for print legal reference resources, But virtually everyone in the legal community had been expanding the use of online research, and we concluded there was room to eliminate the purchase of some print materials, such as the digests in our law libraries, that are available and easy to use online.
Jury operations was another area that necessarily had to be part of the cost reduction plan. The jury system is fundamental to our system of justice, and an effective jury operation is critical to the efficient operation of the court system. Yet there was opportunity for savings here too. The court system spends well over $20 million a year on jury service, the vast majority of which is for per diem fees for jurors. An analysis of juror utilization data showed that in some courts there was a regular pattern of overcailing jurors, with the result that on a regular basis half of the jurors summoned would not be voir dired. Reducing such regular overcalls was not just an opportunity to cut costs, but an opportunity to improve the jury system and make it fairer to citizens. At the same time, it is critical that sufficient jurors be available to the courts. We are therefore working very closely, on a daily basis, with local courts and commissioners of jurors to ensure that there are sufficient jurors, while avoiding the regular and significant overcall of jurors.
Weekend arraignments in the New York City Criminal Court have been a major overtime cost – over $3 million annually in recent years. We have been able to eliminate most of this expense by making weekend days part of the regular five-day per week work schedule for weekend arraignment part staff – primarily court officers and court clerks. Doing that, however, reduces the number of court officers and court clerks available to staff Criminal Court parts on weekdays. To minimize the loss of these employees during the week, it was necessary to reduce the weekend arraignment hours that the employees would be working on the weekends. This has virtually eliminated the overtime costs associated with weekend arraignments. The reduced weekend hours, however, have affected the average time it takes for people to be arraigned. New York law requires that a person arrested be arraigned within 24 hours. The entire criminal justice system in New York City, including police, prosecutors and the courts, has struggled for years to meet that mandate, and the reduced weekend arraignment hours have not made that task any easier. We monitor this process extremely closely, on a daily, and even hourly, basis. If persistent problems arise, as they did in Brooklyn shortly after the weekend hours were reduced there, we are committed to addressing the problems, including increasing arraignment part hours where necessary even if that entails additional overtime costs.
These are just some of the impacts of the budget cuts. We continue to closely monitor these and other impacts, and are prepared to make changes when necessary and where resources are available to do so.
Next Year’s Judiciary Budget
As required by the State Constitution, the budget request was submitted yesterday, December 1, to the Governor and to legislative leaders. The budget request seeks a grand total of $2,3 billion in General Fund funding. That represents a decrease of $3.9 million (or.17 percent) over current year funding.
In the upcoming fiscal year, the court system is facing approximately $70 million in cost increases. One of these increases is $27.7 million for the first judicial pay increase in more than 13 years. Another increase is $21.3 million for contractually-required increments for eligible non-judicial employees. There is also an additional $12.5 million for civil legal services funding to implement the recommendations of the Task Force on Access to Civil Legal Services in New York State, Despite these increased costs, the Judiciary’s proposed budget for the coming fiscal year reflects, as noted above, a slight reduction over the current year budget.
This was possible because of the cost-cutting measures implemented this year, which have reduced the court system’s base operating needs going forward. The proposed budget will require that the Judiciary continue to reduce costs and seek ways to make the court system work better and smarter. The court system’s proposed budget is austere, but if enacted as proposed, would permit some mitigation of at least some of the measures that have had the most immediate and negative impact on the courts and the public. The budget would permit the courts to modify at least some of the measures that had the most immediate and direct negative impact on court users, including backlogs and delays. For example, this budget will permit some relaxation of the early closing times that were implemented this year. The budget will also allow the courts to fill a few critical operational positions that maximize the efficiency of the courts, although it is expected that the total size of the court system’s nonjudicial workforce will continue to decline over the coming year.
The budget, as proposed, provides the minimum funds that the Judiciary needs; any further reduction would seriously jeopardize the ability of the courts to fulfill their core mission. For that reason, the Judiciary looks forward to the support of this Association and the rest of the New York Bar during the budget process over the coming months.
Remarks of Surrogate Kristin Booth Glen on behalf of Surrogate’s Court,
New York County
New York County Lawyers
Public Hearing in Judicial Budget Cuts December 2, 2011
Surrogate’s Court differs from other courts in a number of ways. It operates under its own statutory procedural scheme, the Surrogate’s Court Procedure Act (S.C.P.A.) as well as the C.P.L.R., and under a complex, often tax-driven substantive scheme, the Estates, Powers and Trusts Law (E.PT.L.). Its primary focus, the administration of domiciliary and non-domiciliary estates and trusts, both simple and complex, and resolution of disputes in those areas, involves it, as well, in the substantive law of corporations, partnerships, real estate, landlord/tenant, domestic relations and guardianships. Because finality is so important, issues of jurisdiction are complicated and critical.
The court serves simultaneously as a quasi-administrative agency, processing thousands of uncontested estates with and without wills, and as the forum for some of the most complex and multi-faceted litigation imaginable. It deals with individuals and family members at their most vulnerable, and often, and sadly, at their angriest and most irrational. It shares the joys, with Family Court, but also the heartbreaking conflicts, of adoptions; it provides co-guardianship of funds for untold numbers of minors who receive inheritances, personal injury awards and wrongful death settlements or awards on the death of a parent Finally, it has jurisdiction over guardianships of an ever increasing number of persons with intellectual disabilities (referred to in the S.C.P.A. as the “mentally retarded” and “developmentally disabled”), guardianships that may last – and require monitoring – over many decades.
The “perfect storm” of retirement initiatives, hiring freeze and layoffs has had significant impact on the way in which the court functions, the time required to conclude probate and administration proceedings, and the resolution of related disputes, especially complex disputes; the time available to assist users, many of whom are pro-se, many of whom are not English speakers; and in ways less measurable but of equal concern, the morale of employees repeatedly told that they must do more with considerably less.
Here are some of the specific ways in which Surrogate’s Court, New York County, has been buffeted by this “perfect storm”:
At the beginning of 2010 there were 73 non-judicial employees, including experienced heads of all five major departments (Probate, Administration, Accounting, Miscellaneous and Guardianship and Adoption), as well as highly experienced Clerk Ill’s, who were second in command to those heads. There was a long-term Chief Clerk and a Deputy Chief Clerk, two senior court analysts responsible for personnel, human resources and purchasing functions, and a Law Department of 10 attorneys, five of whom worked for each of the Surrogates and all of whom were responsible for case management and conferencing as well as for research and drafting opinions.
Following the early retirement initiative, in November 2010 we lost our Chief Clerk (who was not replaced until April of 2011), two senior staff in her office, the most senior clerks in Probate, Accounting and Miscellaneous, and one of our three court officers. While some less experienced clerks in lower titles were promoted, an enormous amount of knowledge and experience was lost, and the replacement of three retired Clerk I’s by persons (two of whom had been court officers) with no Surrogate’s Court experience left us with huge holes – and little or no staff to train those new to their positions.
In early 2011 our Head of Accounting was recruited to the position of Chief Clerk in Kings County, leaving that already seriously understaffed department with an ever increasing backlog and virtually dysfunctional. One court attorney was taken from her regular work to help staff Accounting, and the drain on the Law Department was further increased when, in the layoff round, we lost the lawyer who had been Head of Miscellaneous. Two court attorneys shared the responsibility for that incredibly busy department (which had also lost its senior clerk) for several months while a new clerk, with no Miscellaneous experience, struggled mightily to learn what is perhaps the most difficult and legally complex job in the courthouse. The resulting increased case load on the remaining Law Department staff meant substantially less time available for conferences, a previously effective means of decreasing the multiple costs of litigation for families in crisis.
When we, like other courts, were required to designate positions for layoff or transfer we made the hard choice to take from court administration and safety, rather than further dimmish the Departments, and we gave up another court officer (leaving only one for the entire court) and the administrative employee who had been learning personnel and purchasing.
Another aspect of the budget cuts is less visible, but is a considerable detriment to our research and writing capacity, especially in light of the diminution of court attorneys working in the Law Department. In cutting non-personnel services, the Office of Court Administration slashed the library budget, with Draconian cuts to all printed material. All titles from publishers other than Lexis and Westlaw have been cancelled, and while much general material is available on-line, specialized materials and treatises relevant to Surrogate’s Court practice are often unavailable, out of date, or when available on Lexis or Westlaw, poorly organized. Deep cuts in print materials mean, also, that only one of the two Surrogate’s chambers now has a current set of McKinneys, a resource we turn to constantly and which now, for the unlucky Surrogate, requires going on-line to determine whether a statutory provision is still good law.
Today we are down to 61 employees, but that 16% decrease does not begin to tell the tale of the loss we have suffered. Lacking experienced senior clerks and heads of department, there is no one – and no time – to train those newer employees who have come to us through civil service lists or “bumping”, and the general level of expertise has fallen considerably, placing far more responsibility on the experienced employees who remain. When employees are out sick (for example, the most senior remaining clerk in Accounting was on sick and disability leave for almost three months) it is a major job – and a huge cost elsewhere – to attempt to replace them. In my own case, my secretary has been out on disability for over two months, with no replacement, and my principal court attorney and I have juggled her considerable responsibilities, along with our own increased workload.
Our ability to serve non-English speakers and to provide real meaningful access has also suffered. Surrogate’s Court does not have its own interpreters, and now there is incredible delay when we need an interpreter for a hearing or other court proceeding.
Finally, although the vast majority of our employees are working incredibly hard, and at high levels, it is clear the total hiring freeze means not only that we cannot remove nonperforming employees, but that there is also little incentive for them to improve and/or work up to the Court’s high standards.
These are the specifics, but there is also the larger picture. We have made choices to keep the flow of work in the departments (which affects the largest number of our constituents) moving, but at the expense of court administration and safety. Litigants, and sometimes lawyers become highly agitated, and have been known to come to blows, but there is no court officer available in the Law Department where conferences are held, and only one to guard separate chambers, motion calendars and other court proceedings, assignments that may frequently conflict.
Initiatives designed to increase access, like an ambitious website design project to assist pro se litigants and attorneys unfamiliar with Surrogate’s Court procedures, have come to a halt. Our Pilot Mediation Project has been hampered by the time constraints placed on fewer court attorneys with increasing workloads. Efforts to deal creatively with the unfunded but constitutionally mandated monitoring of guardianships of minors and guardianships of persons with intellectual disabilities through establishment of a volunteer monitoring initiative have come to a halt, as has the plan to create a high quality, structured task-defined pro bono program. Our ability to experiment with ways to do things better and /or more efficiently has been effectively ended by the pressures of simply keeping things moving.
We are proud that, as of today, most users of our Court have not suffered significant delays, but the effort which has made this possible is not without substantial cost, Time for innovation and experimentation is non-existent. Many more mistakes are being made which, eventually, themselves cause more delay. Most employees are exhausted, and many are suffering from high stress levels which have led to an increase in doctor’s visits, absences and stress- related accidents and illness. Without the promise of some relief, the situation is, over time, unsustainable.
The demands on the court do not decrease – from hotly litigated proceedings in estates worth hundreds of millions of dollars, to accounting of common trust funds with values in the billions, to requests for emergency withdrawals to stave off eviction from parents of children whose assets we guard, to ever increasing applications for guardianship recommended by special education administrators as students “age out” of that system, Surrogate’s Court struggles to serve families and individuals, the bereaved, the needy, immigrants, people with disabilities as well as banks and financial institutions, the wealthy and their legions of lawyers. Instead of decreasing delays, ameliorating conflict and finding better ways to aid our constituents to reach resolution of their personal losses and financial affairs, we are, with the greatest of effort and at enormous personal cost, pushing our collective bodies and minds against the dike to keep the court from drowning. Without help, we can’t do this for much longer.
On behalf of the Fund for Modern Courts, I would like to thank the New York County Lawyers’ Association for the opportunity to participate in this panel discussion on the Impact of State Court Budget Cute on Children, Families and the Public organized by the Task Force on Judicial Budget Cuts, co-chaired by NYCLA Past President Michael Miller and Hon. Stephen G. Crane.
From our perspective there can be no more important topic and NYCLA is to be congratulated not only for organizing this event but for circulating its on-line survey on the impact of budget cuts in the state courts and the administration of justice.
The Fund for Modem Courts has long focused on the needs of the courts throughout New York State, with special interest in the operations of Family Court which provides relief to our most vulnerable individuals and families. Through our Citizen Court Monitoring program, the work of our Task Force on Family Court and our active advocacy both for additional resources for Family Court and for court simplification, we have made support for and reform of Family Court a priority.
Citizen Court Monitoring
Since 1975, the Fund for Modem Courts has been operating a Citizen Court Monitoring program, which recruits groups of non-lawyer volunteers from around the state to observe court proceedings on a regular basis. The monitors evaluate the courts from the point of view of those outside the system, and recommend improvements to make the courts more efficient and user- friendly for the average person. The monitors’ finding and recommendations are then published by Modem Courts and released to court administrators, judges, court personnel, lawmakers, bar associations, civic groups, and the media.
For over thirty-five years, court monitoring has been highly successful at achieving numerous public-interest objectives, including:
- publicizing problems that exist in the courts;
- urging those responsible for the courts to make improvements, particularly in how the courts serve the public; and,
- educating citizens about the daily functions and operation of their courts, thereby creating a constituency of citizens who understand the problems facing the court system and who are supportive of the courts’ efforts to function efficiently and effectively.
Among its many achievements the Citizen Court Monitoring program has been influential in the establishment of in-court child care facilities in numerous courthouses across the State.
And yet, this important achievement has been significantly compromised by the budget cuts which were adopted by the Legislature in April of this year.
It is unfortunate and sad that this obvious need for child care, especially in Family Court, was given short shrift during the February 2011 joint legislative public hearing on the proposed judiciary budget. After testimony by Chief Administrative Judge Ann Pfau, a leading legislator on the joint committees asked about childcare and noted that the courts went without it in their first 150 years. In response Judge Pfau said it can be very disruptive when litigants bring their children to court. The legislator commented, “That hasn’t changed. There were disruptive kids when we were kids.” He then added, “We would like a list of items that we’ve been spending money on that were traditionally not provided in the courts.”
If that is the standard for future budget cuts, Family Court will be severely hampered in its ability to provide the rational services a modem complex society requires and that the families and children, who use these courts, deserve.
As recently as September 2011, court monitors recruited by Modem Courts noted the lack of childcare services provided in the Suffolk County Family Court and recommended that Suffolk County should provide childcare and a Designated Children’s Area at the Riveihead Courthouse.
Family Court Children’s Centers, first established in 1994, were created to “provide a safe, literacy-rich environment and an opportunity for positive interventions in the lives of vulnerable children.”Perhaps more critical is that child care centers provide a safe place for children while their parents or guardians attend court. Riverhead does not have a children’s center and the hours in the Central Islip have been reduced. Unfortunately, the New York state budget meant a drastic reduction in funding and the hours of operation for Family Court Children’s Centers.
Modem Courts supports restoring this funding or finding alternative funding so that Suffolk County Family Court in Riverhead can create a Children’s Center. Modem Courts further recommended that the Central Islip Children’s Center, currently operating on a limited schedule due to the budget cutbacks, nevertheless maintain a full commitment to its mission, as articulated by the Permanent Judicial Commission on Justice for Children: “To provide a safe supportive haven for children in the courthouse, and a vehicle for connecting families to needed services.”
Family Court Task Force Report
As reported in Modem Courts’ Family Court Task Force Report – “A Call to Action: The Crisis in Family Court; Recommendations for Leadership and Reform,” in February 2009, Family Court is facing its own ongoing crisis and emergency. It is under resourced and burdened with the highest number of cases in the New York Court System, In 2009, it was reported that Family Court appearances are growing at an annualized rate of 26% and now exceed 2.5 million. While changing those courts to meet the needs of children and families is a most difficult task, it is a challenge that has to be met, especially in light of the unprecedented negative economic conditions feat will most certainly further flood the already inadequate resources of Family Court,
Our Family Court Task Force focused on a number of areas including judicial resources, resources for litigants, and incorporating the best use of technology.
The Task Force recognized that there are simply not enough Family Court judges to meet the ever-expanding caseload. Although legislative action is required to add more judges to the Family Court system, Modern Courts believes that there are ways to reallocate resources, including the immediate assignment and re-assignment of additional judges to Family Court, and more effective use of other non-judicial resources, until the legislature passes this critical legislation.
The disparity between the number of cases assigned to Family Court judges and other judges in New York State (e.g., Supreme Court, County Court, and Court of Claims) is unconscionable. The clear message to the public is that family matters are not as important as other legal matters. A recent report found that in 2005 the average number of dispositions of Family Court judges (including support magistrates) was 2,120, as compared to 525 for Supreme Court justices in civil matters, 222 for Supreme Court and County Court justices and judges in felony cases, and 63 for Court of Claims judges. Family Court judges should not be asked to handle caseloads that are, at a minimum, four times as great as other judges and at a maximum ten to thirty times greater.
Effective use of limited judicial resources has to be a priority. Assigning more judges to Family Court is recommended to alleviate the immense caseload burden. Family Court is vitally important to the families of our state, and, as a consequence, is perhaps the most important court in our court system.
As a result, justices and judges throughout (he Unified Court System, whether appointed or elected by the people of this State should be called upon to address the crisis in Family Court, as permitted by the New York State Constitution. Outside New York City, judges in the County Court and fell time judges of the City Courts may be assigned to Family Court. In New York City, judges in the Supreme, Civil and Criminal courts may be assigned to Family Court. Reassigning judges from other courts to Family Court is essential to alleviate the overwhelming caseloads in Family Court. Supreme Court judges need not even be reassigned, in fact, as Supreme Court has concurrent jurisdiction with Family Court. And, although Court of Claims judges cannot be directly appointed to Family Court, when assigned as acting Supreme Court Judges, they obtain concurrent jurisdiction over Family Court cases, permitting Family Court cases to then be transferred to them as well.
There is no more important assignment than the Family Court. It is a challenging assignment, but with proper support and education, many more judges can and must meet this challenge.
As a result of these findings Modern Courts recommended, with the overall goal of achieving an equitable allocation of caseloads among all courts, that:
- In New York City, more Supreme, Civil and Criminal Court judges should be assigned to Family Court, as needed.
- Outside New York City, more County Court and full time City Court judges should be assigned to Family Court, as needed.
- Family Court matters that overlap with matters pending in the Matrimonial Part should be immediately and uniformly transferred for adjudication in the Matrimonial Part.
- Policies, practices and proper screening should be established to support the use of Alternative Dispute Resolution, with an emphasis on limiting that use to specific fact- based child and spousal support and visitation matters where no family violence is involved.
- More functions and matters currently handled by Family Court judges that do not involve issues of family violence should be assigned to referees and judicial hearing officers.
Resources for litigants: addressing the lack of representation
Greater access to justice for families and a better managed Family Court system requires far more attorneys to represent litigants in Family Court than exist today. It also requires the development of an array of additional resources to permit unrepresented litigants to fully protect their rights and obtain substantial justice in the daunting legal and procedural system of Family Court.
The lack of free or affordable legal representation creates a serious additional pressure on Family Court judges, a problem unique to that court, because judges are required to spend an inordinate amount of time explaining applicable rights and responsibilities to unrepresented litigants. This lack of attorney resources results in too many pro se litigants. The large outstanding number of pro se litigants, possibly equaling in excess of 80% of the entire caseload, is a major reason for the continuing crisis in the Family Court system.
To alleviate the stresses on litigants, judges and other court personnel alike, the Task Force strongly recommended that the court seek out private/public partnerships to enhance the human and technological resources available to litigants proceeding pro se.
As a result of these findings Modem Courts recommended:
- Establishing and supporting in every county self help centers that are staffed by knowledgeable and informed individuals and equipped with relevant print and electronic resources.
- Making widely available instruction guides on how to prepare court submissions.
- Expanding and improving upon the technological capability of the courts, including providing computer terminals in courthouses, so that litigants can prepare petitions.
- Providing better web access so that forms and templates can be completed online and electronically filled.
- Extending Family Justice Centers for domestic violence survivors throughout the state.
- Devoting resources to recruiting, supporting and collaborating with a dedicated pro bono counsel panel.
- Re-evaluating the mechanisms for selection and assignment of assigned counsel (18-b) attorneys to cases.
Incorporating the best use of technology
Vastly improved and expanded technology should be incorporated for multiple functions for better assisting pro se litigants as well as improved and expanded data collection regarding Family Court matters. Only with reliable and comprehensive data can a meaningful planning and subsequent analysis occur of the progress and outcomes of Family Court cases and only with such data can improved systems be designed to accomplish the goals of Family Court.
The need for “more efficient and robust recordkeeping and data collection systems” was one of the major recommendations of a conference organized by the New York County Lawyers Association, The goal of such an approach “would be to gauge the effectiveness and efficiency of Family Court processes and outcomes.”
In addition, to offering the court system the opportunity to construct an effective strategic plan for Family Court, an improved information system would assist judges in making their determinations regarding litigants. Finally, effective management of resources requires the use of technology to allow for informed allocation of resources and to ensure accountability at all levels in the Family Courts.
As a result of these findings Modern Courts recommended:
- Creating and implementing a comprehensive data-collection system that would inform and support the accomplishment of Family Court’s strategic goals.
- Establishing an advisory committee of Family Court practitioners and others to assist the Office of Court Administration in the design and implementation of such a system.
All of these findings and recommendations assumed that the current archaic and the inefficient constitutionally mandated system of eleven separate trial courts continue to operate in the way they have in the past But as the Chief Judge noted in his revised budget request for the 2011- 2012 fiscal year, “Streamlining our court structure will enable us to better serve the public and save the State, as well as litigants and local government, many hundreds of millions of dollars a year.”
The Fund for Modem Courts has long supported such reorganization and restructuring of the court system and believes that in these times of economic distress and reduced state revenues, it is time to seriously consider how to create a court system that is both easier for litigants to use and has the potential for significant savings.
Newman & Denney P.C
Attorneys at Law
570 LEXINGTON AVE STE1600
NEW YORK, NY 10022
TELEPHONE: (212) 486-3200
FACSIMILE: (646) 449-7235
Impact of State Court Budget Cuts on Children, Families and the Public – Part II
Briana Denney, Esq.
Families who utilize the Family Court and Supreme Court are in crisis and often, have never been a party to litigation and have never been in a court house. Court is almost always a last resort Crises range from a party or a child being in physical jeopardy to a financial crisis such as not receiving child support and facing eviction. These emotionally taxing issues need expeditious resolution. Practitioners in this area always have challenges, but the court system cutbacks have seriously exacerbated these families’ access to justice. The old adage is that the wheels of justice are slow. Now, the wheels have nearly come to a halt.
The relief sought by attorneys and parties comes at an ever-increasing wait and cost. Shortened courthouse hours means less time for Judges to spend with each case. It is well known to attorneys in this practice area that often, immediate attention by the Judge makes an enormous impact upon resolution. The longer the case lingers in court, the more derisive and fractured the family system becomes. Families with cases pending in court cannot make decisions for the short term or long term as they wait for issues to be resolved at trial and it is children who are most vulnerable to this constant state of flux caused by delay.
Because of the Judges’ inability to spend the time necessary with cases and intervene on an ongoing basis, more cases are going to trial and more cases have ongoing problems throughout the time the cases are waiting to be heard. Because of the difficult scheduling of cases that involve imminent crises versus cases that are ready for trial, more Judges are forced to schedule trials over a period of weeks or months. Scheduling trials on non-consecutive days increases an attorney’s trial preparation time as often, a month has passed and an attorney must reacquaint him or herself with exactly what transpired on the prior dates, thereby, starting ‘anew’ with the trial preparation.
Additionally, the Family Court and Supreme Court matrimonial parts almost always have emergencies which arise on a daily basis. Trial dates, which traditionally started at 9:30 and ended at 5 p.m. (or sometimes later), now begin at 10 or 10:30 and end no later than 4:30. Clients are forced to pay for counsel to wait in the courthouse before trial begins, during the (at least) one hour lunch break, during the inevitable interruptions of emergencies for the Judges, which translates to trial dates that often include less than two hours of testimony each day. Previously, Judges would often start early, work during lunch or stay late to juggle these competing demands, but they are no longer able to do so.
Furthermore, there are severe technology limitations, especially in the Supreme Court. Many Judges do not have copy machines, fax machines or scanners in the courtrooms. In submitting Orders to Show Cause, attorneys are often forced to return to the courthouse to pick up an executed copy as faxing or scanning it to counsel is too time intensive for court staff. Court staff also must leave the courtroom to make copies of an Order, which is not a productive use of time.
The cumulative effect of the cutbacks is that parties cannot be heard expeditiously and the increased costs associated with ongoing court proceedings becomes an economic discouragement in pursing their rights, or the rights of the children.
The following axe examples of the impact on the court system cutbacks which have affected my clients and me, as a practitioner:
Impact in Family Court
- There are no longer court officers in Referee parts: Many of the Temporary Orders of Protection are issued in Family Court by Referees, not Judges. Although the Referees have courtrooms and clerks, due to the budget cutbacks, court officers have been removed from Referee courtrooms. The primary concern to any practitioner obtaining an Order of Protection for a client is that client’s safety. Many victims of domestic violence endure long periods of abuse before having the courage to take action in court and the courtroom environment is not safe and secure without an officer present. The safety of court personnel, litigants and practitioners are in jeopardy and it is only a matter of time before someone is seriously harmed, This environment makes it that much more difficult to advocate for clients.
Example: In extending an Order of Protection for my client and the parties’ child, I was in a Referee’s courtroom without a court officer and with the Respondent, who had several arrests throughout his life and had served time for stabbing a police officer. My client did not feel secure in such an environment and I had to question my own safety as the Respondent stood, red faced and fists clenched.
- Shortened hours in the courthouse: It is well-known that Family Court Judges, Referees and Support Magistrates have exceptionally large case loads and prior to the cutbacks, it was challenging for them to meet the demands of those case loads. The shortened hours have only exacerbated these problems.
Example: I am representing a disabled parent who moved out of state with the child in 2009, The Family Court case started at that time. The first day of trial was in March 2011. Due to the Judge’s packed calendar, the trial dates had to be scattered until November, when the trial was completed. My disabled client was required to drive several hours each way for each court appearance. In the end, this relocation case will take over two years until completion, making the Judge’s difficult task of whether the child should return to New York City that much more difficult as the child has already spent two years residing elsewhere.
Example: On a recent appearance in Family Court to renew a Temporary Order of Protection, the case was scheduled for 10 a.m. The case was called by the Court at 12 p.m. and then recalled after lunch at 2:30 p.m. By the time the Temporary Order of Protection was issued by the clerk’s office, it was 4:30 p.m., with my having to bill the client for the entire day. These continuous delays acted as a financial discouragement for my client to pursue to her rights in court and to protect herself and the child
Impact in Supreme Court
- Delays in obtaining Judgments of Divorce: Even when all issues are resolved, the parties must submit several additional documents in order to obtain a judgment of divorce. These are lengthy documents to prepare and review, but they contain the legal requirements in order to divorce. Judicial Hearing Officers (JHO’s) previously reviewed these documents and issued judgments of divorce. With their positions being terminated, this document review falls upon the Judges, who are already trying to fit more cases into a shortened day. There are a few counties in the City of New York which take eight to twelve months from submission of the documents until the judgment is signed. The following are just some of the consequences of not having a judgment of divorce:
- Tax consequences: parties cannot file as individuals until a judgment of divorce has been signed, which can create thousands of dollars of tax liability. Filing as married is a not an option for most parties for several reasons, including the requirement that parties are jointly and severably liable and there is no tax benefit for the payor when making maintenance payments.
- Agreements cannot be easily enforced: if a party stops paying child support, for example, there is no court order yet in existence to enforce and none of the traditional remedies such as income deduction orders or contempt. Instead, if a party is noncompliant with an agreement that has not yet been incorporated by a judgment of divorce, the other party must start a new law suit for breach of contract to enforce his or her rights, which creates even more back log for the court system.
- Shortened hours in the courthouse: In addition to the limits on trial time as explained in the Family Court section, the time Judges can devote to conference cases in order to resolve immediate and long term issues has been shortened. This inability to sit down and help resolve all the issues over which the court has jurisdiction and assist in finding resolutions to the issues, causes cases to linger in court for months or years. Most attorneys attempt to resolve these issues before going to court, but it often takes the intervention by the person in authority, the Judge, to express an opinion. Therefore, families are not able to resolve the immediate and longer term issues until trial and they wait in a state of instability. Only Judges in the Supreme Court can preside over a trial involving custody of the children; these cannot be sent to Referees. Accordingly, as the cases mount for the matrimonial Judges, trials as of today are being scheduled for July 2012 and later. The following are just a few examples of the delays which are occurring in matrimonial parts:
- I obtained an Ex Parte Temporary Order of Protection for my client. The other party was excluded from the marital residence. The next appearance date was scheduled five weeks from the Order of Protection being issued due to the fact that the Judge’s calendar was full until then.
- Post-trial memorandums were submitted in February 2011. We still await the Judge’s decision. The parties’ sold the marital apartment and the funds are being held in escrow. As the division of the apartment proceeds are a major issue in the case, no funds can be released until the Judge makes a decision. These proceeds constitute the bulk of the assets of these parties and therefore, neither party has any funds until the case is resolved and cannot move on in his and her life.
- The parties – still living together in the marital apartment – started the divorce process in 2009. They have two children who still do not know their parents are divorcing as the parties are unable to provide the children with any concrete information such as where they will live and where they will go to school. Trial is scheduled for February 2012. Until the Judge or Referee makes a decision with regard to the marital apartment (which could be months after the trial concludes), the parties have no financial alternative but to remain living together with the children, even though they are unable to communicate with one another. The forensic psychologist assigned by the Court indicated that this tense and ambiguous living environment has had a negative impact on the children.
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TESTIMONY BY DORA GALACATOS
SENIOR COUNSEL, FEERICK CENTER FOR SOCIAL JUSTICE
AT THE PUBLIC HEARING OF THE
TASK FORCE ON JUDICIAL BUDGET CUTS
Good morning. My name is Dora Galacatos. Thank you to the co-chairs and the members of the New York County Lawyers’ Association Task Force on Judicial Budget Cuts for the opportunity to speak about the impact on New York City residents of the budget cuts to the judiciary.
This morning I am speaking in my capacity as Senior Counsel at Fordham Law School’s Feerick Center for Social Justice, Before beginning my testimony, however, I would like to note my associations with NYCLA. I am a member of NYCLA’s Board of Directors and of its Justice Center Board and also a member of NYCLA’s Pro Bono Committee. And so it is a special honor to appear before you today.
The Feerick Center strives to create concrete, achievable solutions to problems of urban poverty. Among other activities, the Feerick Center helps support the CLARO Programs in New York County, Bronx County, and Richmond County. CLARO is short for the Civil Legal Advice & Resource Office. CLARO is a limited, legal advice program for pro se defendants in consumer debt collection cases that have been filed in New York City Civil Court.
CLARO Programs involve partnerships among the courts, bar associations, legal services providers, and academic institutions. I am delighted that the Feerick Center works in partnership with NYCLA to operate Manhattan CLARO. Every week, CLARO Programs operate walk-in clinics located in the courthouse, where New Yorkers dealing with consumer debt issues and consumer debt cases can get limited legal advice from volunteer attorneys. These clinics are administered by volunteer students. In addition, volunteer legal services attorneys, who are consumer law experts, provide back up support and expertise.
The CLARO Program, which started in Brooklyn in 2006, now operates in all five boroughs. During these years, nearly 875 CLARO volunteers have assisted or helped assist over 9,000individuals defending themselves in consumer debt cases. Unfortunately, this only scratches the surface: in 2010, creditors filed more than 200,000 debt collection cases and less than 1% of defendants were represented. Because the CLARO program is a limited legal advice clinic for these unrepresented defendants, we have a unique and somewhat narrow perspective on the impact of budget cuts. CLARO volunteer attorneys do not file notices of appearance on behalf of clients and CLARO personnel do not interact on a regular basis with court clerks, court personnel, and judges.
We have seen, however, from our vantage point the significant impacts of the budget cuts on the New York City Civil Court, particularly for the vast numbers of unrepresented defendants in consumer debt collection cases.
Among the impacts that we see on a regular basis, I would like to highlight two that are significant First, as a result of the budget cuts, in some counties, we have seen some inordinate delays in the retrieval of archived court files that are stored offsite, In addition, in recent months, some CLARO partners have reported delays in getting access to recently filed documents for non-archived files.
While some court clerks’ offices are reporting that archived files – stored offsite – can be obtained in 6-8 weeks, CLARO partners continue to report longer delays – generally of two months and more. The delays in retrieving archived court files fall heavily on pro se litigants. This is especially so for those debtor defendants who come to CLARO who have had a default judgment entered in their case and who are being denied access to housing, employment, or credit because the default judgment is reported on their credit report or because they are threatened with wage garnishment or bank account seizures.
I would note that while the rate of default judgments is going down in New York City, that rate was as high as 90% in the Bronx and 70% citywide in 2007-2008. The citywide rate of default judgments in New York City was 58% in 2010. This means that, in the pipeline, there are massive numbers of default judgments because during the last three to five years, the Civil Court saw both historically high numbers of filings and historically high rates of default judgment.
For these visitors, the ability to draft a convincing order to show cause can be an urgent matter. Yet, without access to court file documents such as affidavits of service, volunteer attorneys and consumer law experts are hindered from fully and adequately asserting claims to much needed relief One concern is that orders to show cause could be rejected under the current case law, which is clear that bare allegations of improper service are not sufficient.
In short, without timely access to the file, pro se defendants are often delayed in obtaining the information needed to stop or prevent wage garnishments or bank account restraints or to challenge a default judgment and get it off a credit report.
For these individuals, a delay in retrieving the court file can set off a chain of hardship as they miss rent or struggle paying for everyday necessities due to decreased pay or seized accounts. At CLARO we have seen the harsh impact of wage garnishment, which can lead to a loss of housing, and also the harsh impact of the denial of housing due to judgments on credit reports, which can lead to protracted stays in shelter.
Other delays have been reported by CLARO partners. They include delays in the filing of affidavits of service into active court files. Such delays also disadvantage defendants generally and pro se defendants in particular, because defendants have up to 60 days from the filing of the Answer to file a motion to dismiss based on a lack of personal jurisdiction.
Another impact of the budget cuts that is particularly harmful to working people and families is shorter hours and earlier closing of court offices. In Bronx County, for instance, recent data show that 45% of CLARO visitors are employed. The Clerk’s Office, however, closes at 4pm and stops accepting papers for filing at 3:30pm; in the past, the Clerk’s Office remained open until 5:00pm. All Civil Court Clerks’ Offices are now closing earlier. Because of these shorter hours, a working person will often have to take more time off of work in order to attempt to retrieve a case file and to file papers.
I thank the Task Force for conducting this public hearing today on the very critical impacts the cuts are having on New Yorkers, particularly on vulnerable New Yorkers and on working poor New Yorkers.
I thank you, once again, for the opportunity to submit this testimony.
SALZMAN & KUTZIN LLP
Attorneys at Law
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THE EFFECT OF REDUCTIONS IN COURT STAFF ON ARTICLE 81
By: Ira Salzman
Article 81 of the Mental Hygiene Law establishes the procedures to appoint a guardian for an adult who cannot manage his or her personal or financial affairs without assistance. Many guardianship cases are brought in order to implement a care plan for an incapacitated person. Thereafter, there is continuing court involvement to insure that the guardian complies with court procedures, the rights of the incapacitated person are protected, and money is not stolen or spent improperly by the guardian. These are generally referred to as compliance issues.
Delays in the processing of papers by the court create delays in the implementation of care plans and affect the ability of the courts to monitor guardians after they are appointed.
Guardianship courts throughout the city have lost personnel. While I have not been able to obtain formal statistics, anecdotally, everything is now talcing longer.
There are three major bottlenecks where, at least anecdotally, delays are creating problems for incapacitated people and their families.
The first bottleneck is the processing of orders appointing guardian. In some counties this is still happening relatively expeditiously, in approximately one month. In other counties the processing of these orders is taking two to four months.
A delay of two to four months in the processing of an order appointing guardian often means that the effectuation of a care plan is delayed for that amount of time, So, for example, if a guardianship proceeding is brought by a hospital in order to effectuate a discharge plan, the incapacitated person, even if ready for discharge may have to remain in the hospital for many months, before home care can be put in place and the patient can go home.
In cases brought by the New York City Department of Social Services Division of Adult Protective Services (a very large percentage of the cases), where individuals are living in squalor and/or there is a “Colliers” situation, a delay in the issuance of an order appointing guardian has substantial impact on both the incapacitated person and the incapacitated person’s neighbors. In many of these cases there is also a stay of eviction which means that the landlord is not getting paid. This is a particularly significant issue in the outer boroughs where small landlords in two-or-three-unit buildings are relying on the rent in order to make their mortgage payments.
The second bottleneck is the delays in the review of annual accountings. Guardians are required to file an annual accounting with the court which sets forth all of their financial transactions for the previous calendar year. In Queens County the backlog in reviewing annual accountings is about six months. In Kings County the backlog is years. This has impact in two significant areas. First, and most significantly, it means that the compliance function of the court is backlogged. It means that if assets have been stolen it may be years before the theft is discovered. In addition, under current practice, guardians are not paid until their annual accounts are approved by the court. Many competent people who were willing to serve as guardians in the past no longer want to accept these appointments because it takes so long to get paid.
The third major bottleneck is the approval of final accountings. When an incapacitated person dies or the guardianship is being terminated for some other reason, a final accounting must be submitted to the court for approval. A final accounting is a statement of all of the financial transactions that a guardian engaged in during the term of the guardianship. In Kings County it is now taking two to three years to get a final accounting approved by the court. Much as with the annual accountings, the major impact with regard to this is the delay in compliance reviews. In addition because most of the fees that guardians receive are backloaded, it creates delays in the ability of guardians to get paid. This is a significant factor in the refusal of many competent and experienced guardianship professionals to take additional appointments.
Court personnel have been working very hard to keep the system up and running notwithstanding the losses in personnel. In one county the supervising clerk was demoted and required to take a five-figure pay cut because of civil service rules and yet was asked to stay on as a supervisor of the department. Because he likes the work he agreed to do so. The guardianship clerks in New York City take their work very seriously. They understand that they themselves are in many respects the guardians of an extremely weak and vulnerable population. They need our support. The budget decisions that are made should take the extreme vulnerability of the population that is served by the guardianship parts into account.
TESTIMONY OF LOUISE SEELEY
EXECUTIVE DIRECTOR, HOUSING COURT ANSWERS
TASK FORCE ON JUDICIAL BUDGET CUTS
DECEMBER 2, 2011
NEW YORK COUNTY LAWYERS’ ASSOCIATION
14 VESEY STREET
Good morning, I am Louise Seeley Executive Director of Housing Court Answers. I thank the Task Force for giving me the opportunity to present to you this morning. Housing Court Answers is a non-profit which has been assisting pro se litigants in NYC’s Housing Courts for over 30 years. Each year we help over 30,000 people at our information Tables which are located inside the courts.
We at Housing Court Answers are very concerned about the impact the massive budget cuts are having on access to justice, especially for pro se litigants in Housing Court. My staff has already seen disturbing changes since the budget cuts have been implemented. I have also received concerns from members of the Bar.
Even before the budget cuts Housing Court was an incredibly overburdened court. It is one of, if not THE, busiest courts in New York City. As you know, Housing Court deals with the incredibly important task of preserving housing and settling landlord tenant disputes. An unjust outcome can result in the unnecessary loss of one’s home and all the problems associated with homelessness. The reduction in the Court’s budget is impacting everyone in the Court system the Court personnel, the judges, the attorneys and the litigants. But for pro se litigants in Housing Court the impact is greater. The majority are tenants at risk of eviction who were already faced with an uneven playing field and a system which seemed to have little time for them. Due to the budget cuts many of the reform efforts that were underway seem almost impossible.
One of the most apparent impacts of the cuts is massive overcrowding and long lines cause by reduction of staffing in the clerks’ offices and court officers. Over the past year the Brooklyn in clerks office has been standing room only and filled beyond legal capacity on a regular basis. Tensions flare high as people wait hours to see a clerk, and this is after they have waited on a lengthy line to get into the building and another line to get into the clerk’s office. In the Bronx, just this past Monday the answer line was so long that we estimate that it took up to 2 hours to file an answer. The lobby was so crowded with people waiting on line that a court employee was overheard saying that the Court Officers had better stop letting people in or the fire marshal would shut the place down. On many days the line to get into Bronx Housing Court goes around the building and it can take up to an hour and a half just to get in. As winter approaches people will literally be left out in the cold waiting to save their homes, in every county the lines to enter the courts are longer than my staff has ever seen before. While an effort is being made to make sure that tenants are not defaulted due to the long lines these efforts sometimes fail putting people at serious risk of eviction.
Reduction in the number of clerks has not only resulted in longer lines but improperly trained clerks. On more than one occasion tenants have told us that the clerk refused to let them file papers that they had every right to file or gave them wrong instructions. While this has been a problem in the past the frequency is definitely increasing. Additionally, it seems that papers are being lost and files misplaced. For example the other day one of my staff helped a tenant who had to come back 4 days in a row to file an order to show cause. On days 1,2 and 3 he filled out the OSC and waited all day to see if it was signed just to be told it had been lost between the clerk’s office and the courtroom. While we cannot be sure that this problem was caused by the budget cuts, my staff member, who has worked in the Bronx for over 6 years, has never seen anything like that before. Requesting files is also taking much longer resulting in delays and even more serious problems. An attorney reported to us that he was unable to use a previous court file to prove a defense because it was going to take significantly longer than six weeks to obtain it.
Another problem caused by the cuts is that litigants who arrive after 3:45 are denied access unless they have a dire emergency such as a marshal’s notice, illegal lock out or no heat. Those unaware of the new hours waste time and money coming to court just to be turned away. And we have heard that those with emergencies sometimes have a difficult time getting in. And while we applaud the Court’s system of working with the Department of Investigation in obtaining lists evictions scheduled for the next day, we are worried that this system may fail in cases where a tenant not listed in the caption shows up to stop the eviction. Additionally, now that it is heat season tenants will be coming to court to file HP cases for no heat. We are very concerned that tenants showing up after 3:45 will be told to come back the next day.
The closing of the child care centers in Housing Court is another hardship faced by litigants. Parents at risk of losing their homes are under incredible stress and their children sense this stress. The child care centers provided an oasis for these children and allowed their parents to focus on their cases. One of the tools used by landlords attorneys to dissuade tenants from exerting their rights and obtain favorable stipulations for their clients is the threat of having to come back after lunch. Parents with no place to have their children play during the day are especially vulnerable to this tactic.
Budget cuts have also reduced the number of interpreters. This has resulted in significantly longer lines for the interpreter windows and lack of interpreters for the help centers. In New York County where there were once two lines for interpreters there is no only one. We have also seen a change in the amount of assistance interpreters are willing to give and have seen clients with limit language skills sent to answer or file forms on their own. Interpreters, spread thin, run from part to part delaying cases throughout the system and rush through cases. In Brooklyn Russian speakers coming to file answers are told to come back when the interpreter is there. This is sometimes after the time to answer has passed. An effort to solve this problem by having a permanent Russian interpreter for a borough with a large Russian speaking population was met with the response: “we cannot do it with the budget cuts”. The same answer was given for the request for a language telephone service.
And finally the budget cuts have a huge impact on the morale of the court staff and this has resulted in abrupt and even rude treatment of litigants and attorneys. While we have always received complaints about rude clerks, dismissive judges and aggressive court offices, the atmosphere in the courts since the cuts is worse than ever. Attorneys have complained to us that Judges who once seemed willing to listen are now just trying to get through their calendar. One attorney told us that when he plugged in his phone charger in a court room – a common practice – a court office reprimanded him, saying “if my fellow officers are getting laid off you’re not getting free electricity.”
The costs of homelessness both financial and social are well known. With the cuts in clerks, court officers, interpreters and hours, tenants are at greater risk of losing their homes than ever before. The economic problems we are facing are well known but we cannot sacrifice justice to balance the books. The tragedy of these budget cuts is all the more painful given the current Chief Judge’s commitment to access to justice. Judge Lippman has emphasized time and again that access to justice is more than just keeping the doors open, it means making sure peoples’ rights are protected. Sadly with these cuts it seems that even keeping the doors open is a problem.
Testimony Before NYCLA Task Force cm Judicial Budget Cuts
Daniel R, Alonso
Chief Assistant District Attorney
New York County
December 2, 2011
Thank you for the opportunity to present the views of the Manhattan District Attorney’s Office about the effects of the recent OCA budget cuts on the criminal justice system in New York County. My name is Daniel Alonso, and I currently serve as the Chief Assistant District Attorney in Manhattan.
Simply put, we have observed that the state court budget cuts have had a profound effect on criminal practice in New York County, to the detriment of all parties involved in the system. The new rules are unfortunately rigid, and require proceedings to be interrupted at 12:30 pm and 4:30 pm, in order to minimize overtime pay to court staff. The result, not surprisingly, is that civilian witnesses miss additional days of work, lawyers must be involved in cases for longer than necessary, there is a greater risk of mistrial, and in the case of incarcerated defendants who are ultimately acquitted, they spend needless additional time behind bars awaiting trial.
In 2010, DA Vance spearheaded a successful partnership with OCA to improve Criminal Court practice. Working together, we have increased trial capacity, reduced the backlog, and created a new court part to handle thousands of quality of life offenses. We are concerned that the budget cuts will prevent us from furthering our shared goals.
In particular, over the last decade, the participants in the criminal justice system have made so many strides in arrest-to-arraignment time, but those numbers have slipped since June, when the weekend arraignment schedules were shortened to offset budgetary concerns.
In the key category that reflects change in our office’s own performance – the time from the District Attorney’s office’s filing of the necessary paperwork until the arraignment of The defendant – our courts have slipped every single month as compared to the same time in 2010, with arraignments-after- readiness in June and July occurring more than four hours later. Even with some recent improvements, November’s arraignments occurred nearly two hours later than at the same time last year.
In a busy Criminal Court calendar part, Part A, the Court has been having defense attorneys waive their clients’ appearances in cases where the defendant is not expected to be released. This has occurred even in cases in which there might otherwise have been a disposition. Because of that, defense attorneys are rightfully upset that in many instances they have appeared in court but been unable to see their clients or meet with them after the appearance.
But trials have probably suffered the most In the five months following the imposition of the budget cuts earlier this year, the average Supreme Court trial has lasted for 7 days, which is a day to a day and a half longer than earlier in the year or in the comparable period last year. Multiply that delay by the nearly 350 cases tried so far this year in Manhattan alone, and it has very serious consequences for the trial courts. Each trial day saved is a day that a judge could be spending more time with a particular defendant, victim, or probationer, or disposing of motions and other court matters more quickly. To put it in perspective, this extra 20% – 25% adds an additional week to a one- month trial
We should remember that we began with a system where in an ideal world trial days begin at 9:30, break at 1:00 p.m. for lunch, resume at 2:15, and break for the day at 5:00 p.m. Although that ideal was rarely achieved because of other cases on the calendar, late or sick jurors, slow elevators, missing witnesses, and a thousand other things that can go wrong in a trial, the essential difference was that judges had the discretion to extend the trial day. The requirement that courts break at 12:30 so that jurors may leave the building – and therefore not deliberate – followed by a 4:30 hard stop has caused problems that impose large and small costs that in the end make the budget cuts penny wise and pound foolish.
Also, to state the obvious, breaking in the middle of the testimony of key witnesses (such as rape victims, etc.) to stick to an inflexible cutoff time can make the court system seem inhumane, which in turn erodes confidence. An example is People v. Phillip Stevens, a felony domestic violence case in which the defendant acted as his own lawyer. The victim was thus cross-examined by her abuser. Her testimony was interrupted near its conclusion so the court could t break, requiring her to come back for a second day of cross-examination by the defendant Her tremendous anxiety overnight in between the first trial day and the second day, which would have been unnecessary had the budget cuts not prevented her being cross-examined on a single day.
In People v. Hugues Akassy, a pattern sex abuse case that recently ended, the new rules forced a criminalist from the Office of the Chief Medical Examiner to return for a second day of testimony. The Court had to interrupt his testimony to break at 4:30 pm, and the criminalist had to miss a second day in the laboratory to return to court for what ultimately turned out to be ten minutes of testimony the following morning. Surely, the criminalist’s time would have been better spent at his lab doing work that benefits the citizenry.
One glaring example of waste resulting from the budget cuts is the felony domestic violence assault case, People v, Okan Umay, tried in June. The court closed down each day at 4:15 pm, requiting testimony to continue for 5 days in what was ultimately a simple case. Because of the budget cuts, the jury was not allowed to deliberate during lunch, and was obligated to stop deliberating at 4:15 pm. Jurors were also not allowed to deliberate during lunch. Mostly for these reasons, deliberations went on for two days, and on a third day, a juror called in sick and told the Court he could not return for at least three more days. The judge spoke to the jury, determined that a delay would be unworkable, and declared a mistrial. Under those circumstances, she had no choice.
But those circumstances were directly the result of the budget cuts. The assigned ADA spoke to most of the members of the jury afterwards, who said that all 12 of them had agreed to convict on one of the three counts but had simply not yet rendered their verdict. They predicted as well that they had been at most a couple of hours away from agreeing to a verdict on the other two.
The jurors also commented that all had been willing and eager to deliberate over lunch and into the evening. They said that had they been able to do so, they would have had a verdict at least a full day earlier, obviating the need for the mistrial and the second painful and difficult trial that goes along with it
We fully support OCA in its quest for additional funding. We must allow judges to run their courtrooms in a manner consistent with the interests of justice and fairness. In the end, state courts are not just another agency of government. They are, in a very real sense, a significant part of the measure of what makes us a civilization. If criminal disputes cannot be resolved with dispatch, our citizens are failed by the system designed to protect them.
My name is Lori Cohen and I have been a criminal defense attorney in New York City for over twenty five years.
Over the course of my career I have seen many changes in the New York State Courts. Some of those changes have been beneficial and some were not as well thought out as expected. None of these prior changes have had the impact that the recent budget cuts have had on the imposition of justice in the Criminal Justice System.
Those of us who practice on the Criminal side of the New York State Courts have spent our careers bearing the consequences of representing a segment of society that have little or no political voice, no money to influence the political process and are simply a segment of society that seem to be lowest on the totem pole of society’s care. The indigent in this State suffer many ills, but none are more egregious than the manner in which justice is doled out to those without money, without power and without influence. Hence, it is no surprise that this indigent segment of the population is probably hardest hit by the recent budget cuts.
The effects of these cuts range from greater pre-trial detention times to greater hardships on the families of those charged with crimes. These cuts have damaged the criminal justice system and more importantly, its credibility with the vast population who use the courts to seek justice both as a defendant and as crime victims.
The most obvious issues come from the limited court day. While now Courts are scheduled to be open for business from 9:30 – 12:30 and then 2:15-4:30 – the reality is that a Court Day is much shorter. This affects both the amount of work done in a single day, and the overall length that it takes to both move a case to trial and then to actually complete a trial. The reasons for delays are plentiful:
- The Department of Corrections, charged with bringing individuals to Court, rarely, if ever, produce defendants prior to 10am.
- Jurors, even those ordered to be present at 9:30, never seem to fully assemble until closer to 10.
- For many of the same reasons, Courts rarely start at 2:15 – thereby shortening the afternoon session even further.
The practical results of these issues are delays, delays, delays. In a criminal justice system where a speedy trial is a statutory and constitutional mandate, the implementation of a speedy trial is often impossible. Here are some nightmare scenarios that I have experienced:
- A school teacher is involved in a tussle at a dog run park. The police are called and the teacher is issued a Desk Appearance Ticket for an Assault for the pushing and shoving that occurred. The City of NY Department of Education is automatically alerted and the teacher is suspended, pending the outcome of her case. The teacher goes to court and is arraigned on the Desk Appearance Ticket. Her attorney answers ready for trial and the case is adjourned for forty five days. The statutory speedy trial time applicable is ninety days. On the next Court appearance, the prosecution is not ready for trial, they request one week and the case is adjourned two months because of the heavy Criminal Court calendars. After a week, the prosecution serves a Certificate of Readiness, thereby stopping the Speedy trial Clock. At the next Court appearance, now over three months from the client’s arraignment, the prosecution is not ready, requests one week and the case is again adjourned two months because of the heavy case load. The prosecution again files a Certificate of Readiness after one week. And it went on and on. The prosecution, who claimed it was ready to proceed, was never ready to proceed on the actual Court date. Clerks in misdemeanor parts say the caseload it too high to advance a case when the prosecution claims it is ready, and Judges say the case load is too high to put the case on in a week. So, it took almost one year for this case to eventually be dismissed – all the while the young teacher was unable to work and her students unable to derive the benefit of her teaching.
- The situation in Part F – the felony Part in NY County is even more egregious. As a result of the new Court times, at 4:00, all cases that have not as of yet been heard because the prosecution has until the end of business to vote an indictment, are automatically adjourned to the night arraignment part. In the night arraignment part, many actions are taking that are important stages of the proceedings – yet the client is never produced and you have absolutely no access to speak with him or her. So when a prosecutor requests a good cause extension, they do it in the absence of the client. When a prosecutor indicates that an indictment has been voted, they do so in the absence of the client. Not only does the NY State Court system deprive the defendant of the ability to be present at a critical stage of the proceeding, but these actions serve to severally undermine the attorney – client relationship. This relationship, which is in its early stages and is tenuous at best, suffers from the client’s inability to see his attorney objecting to the good cause extension, arguing for bail and simply zealously defending his or her rights.
- Trials in New York Supreme Court not only take longer to complete, but take longer to occur. The Court calendars are clogged with cases that require trials, but lawyers and courts can only proceed on a single case at a time. In a recent Homicide trial, the testimony took at least a day longer than it would have if the Court could have worked to 5pm. This extra day not only costs the court in assigned counsel fees, but keeps police officers off the street a day longer, and delays justice for all sides. The reality of a trial with a client who is in custody is that the jurors and defendant are not all together until at least 10; there is usually a morning break and then recess at 1. The players are never assembled at 2:15 and in most cases testimony does not commence until closer to three – by the time the jurors all return and are assembled, the court handles whatever other matters it has and the client is brought into the courtroom. That leaves less than ninety minutes until 4:30 – and that discounts the afternoon break. Hence in practicality, there is little completed in the afternoon – thereby further extending the length of trials. Of course, the increase length of trials not only disrupts the current case, but it means that fewer cases can actually be tried, thereby extending the length of pre trial detention – and the associated costs, the larger calendars, the longer delays in having crime victims receive justice.
- The budget cuts have also caused the demise of lunch for the deliberating jury. This means that jurors now cease their deliberations at 1, are left to have lunch on their own and then return to continue deliberations. It is simply unrealistic to think that if some of these jurors have lunch together – but they are not all together and hence cannot deliberate – that they do not discuss the case. Even if this small subgroup does not discuss the facts of the case, the fact that they lunch together and build a bond may have an impact on how they vote and how they view their subgroups arguments.
- An associated issue is the closing of the child care center in the courthouse. Many clients and their families often took advantage of the day care center at court. This center enabled clients and families to attend court proceedings while their children were in a safe environment. Bringing young children into the Courtroom is simply not the best solution. The loss of the day care centers mean that individuals already at or below the poverty line have to either leave a child with another person, or bring the child to court and hope the child is quiet, or simply not come to Court. For many families, the inability to have child care at the courthouse often means that they cannot attend Court sessions – thereby leaving their loved one unsupported. In some cases, the presence of family in the Courtroom makes the difference between a probation plea, with the Judge being more comfortable with probation knowing the defendant has a support system.
These are just some of the impacts of the budget cuts on the Criminal side of the NY State Courts. I am sure you will hear about how the loss of experienced and knowledgeable personnel has impacted the Courts. That loss has also been felt on the Criminal side. All is well as long as there is nothing out of the ordinary; once that occurs however, it can take days or weeks to resolve an issue that had been resolved with a single phone call to the right person. The savings in time, effort and cost associated with the loss of experienced personnel is incalculable.
In the end, the delays in justice – for both the accused and the accuser – are a poor tradeoff. The budget cuts have decimated the Criminal side of the NY State Courts in many ways. I expect that given additional time, there will be additional consequences discovered.
Thank you for your time and consideration.
The Legal Aid Society of the City of New York
at a public hearing on
Impact of State Court Budget Cuts
on the Criminal Justice System
New York County Lawyers Association
Task Force on Judicial Budget Cuts
Irwin Shaw, Attorney-in-Charge
New York County Criminal Defense Office
New York, N.Y.
Good afternoon, I am Irwin Shaw, Attorney-in-Charge of the Legal Aid Society New York County Criminal Defense office. The Legal Aid Society welcomes this opportunity to testify at this public hearing to discuss the impact of State Court budget cuts on the criminal justice system. We appreciate your attention to this important matter.
Since 1876, The Legal Aid Society has provided free legal services to New York City residents who are unable to afford private counsel We are dedicated to the simple but powerful belief that no New Yorker should be denied access to justice because of poverty. Annually, through our criminal, civil, and juvenile offices in all five boroughs, our staff handles some 300,000 cases for low-income families and individuals. The services we provide reflect the entire gamut of the needs of our clients, from immigration representation for the newest arrivals, to health care benefits for the oldest New Yorkers. By contract with New York City, the Society serves as the primary defender of poor people prosecuted in the State court system. Last year, we represented clients in nearly 230,000 criminal cases. Our perspective is shaped by our extensive experience with the New York City criminal courts.
Our present situation is unique. In my forty-one years of experience with the criminal court system I cannot recall another instance when that system has had to cope with such extensive cuts in personnel, resources, and hours of operation. While we have faced challenges in the past, such as the World Trade Center attacks or a series of blackouts in the City, that threatened temporary disruptions of the administration of justice in our courts, never before have I experienced the kind of challenges with respect to court access caused by the drastic $170 million cut to the judicial budget. Our primary objective is to provide a fair and open process for the large numbers of people who are arrested daily. In the past we sought to increase court efficiency by such means as twenty-four hour or overlapping arraignment schedules. I am concerned that, in spite of the best efforts of dedicated and hard working Office of Court Administration administrators, the decrease in court access we are now experiencing can have a negative impact on the fair administration of justice when combined with delays by City agencies in producing clients.
Impact on Arrest to Arraignment Times
The right to appear before a judge in an expeditious manner following an arrest to review a criminal charge is a hallmark of our criminal justice system. This right is guaranteed under both State and Federal law. The State is under a mandate from the Court of Appeals to complete the arraignment within 24 hours of arrest.
The timing of the arraignment is critical. Because of that early judicial review many charges are dismissed either pre-arraignment by the District Attorney or at the arraignment itself. The arraignment presents areal opportunity for either disposition of the case or release from jail for the vast majority of the 370,000 people who are arraigned. In 2010,103,000 of these arraignments occurred in Manhattan alone. Many of the arrest charges are for low level misdemeanors and violations and the period of incarceration between arrest and arraignment is the only time the person will ever spend in jail. In some cases this period in jail exceeds the legal maximum punishment of the ultimate disposition of the case.
In combination with continuing delays in producing clients for arraignments that are attributable to the New York City Police Department, judicial budget cuts affect the ability of the courts to conduct timely arraignments. In order to deal with the drastic budget reductions the courts have reduced weekend arraignment shifts. Until this year weekend arraignment hours in Manhattan ran from 9:00 AM until 1:00 AM the following morning. Two overlapping shifts in the evening meant that there were twenty-one working hours each day. The new hours run from 1:00 PM to 11:00 PM. Even with overlapping arraignment shifts, budget cuts have caused a reduction of the number of weekend arraignment hours per day to sixteen, about a twenty-five percent cumulative daily reduction. While the courts have been flexible in scheduling an extra shift on a Friday or a Monday to compensate for the reduced arraignment hours, such substantial weekend reductions cannot help but have a negative impact on the arrest to arraignment times when delays by the Police Department during the week result in an arraignment backlog before the reduced weekend hours even begin.
The combination of Police Department delays and reduced court hours last month produced average arraignment times (through November 26) of 25.67 hours for Manhattan, 27,50 hours for Brooklyn and 29,84 hours for the Bronx. More clients have to wait over twenty- four hours for an arraignment, Cutbacks in available overtime mean that one remedy used in the past, an extra part being added at night, is no longer possible. For too many clients, especially those who will get out of jail at an arraignment, the delay in arraignment – whether attributable to the City delays or judicial budget cuts or both – results in a violation of their rights.
Closing the Courthouse
The combination of Police delays and the shorter courthouse hours also have an impact on the number of people who remain incarcerated. As discussed above, more people have to wait in jail for a longer period before the arraignment. In addition, production delays and decreased hours can reduce the opportunity to gather the information that will lead to release or decrease the amount of bail set at the arraignment.
In an effort to save overtime costs, a rule that prohibits access of non-employees until the courthouse formally opens at 1:00 PM is now enforced. Defense counsel arrives at noon to begin interviewing clients and have notices ready for the court to start at 1:00 PM. However family members cannot enter the arraignment parts until 1:00 PM making it difficult to gather information relevant to the release of the defendant. Families are often in a position to support a defendant by proving some essential fact, such as employment or attendance at school, that will verify community ties. Open participation from the community is essential to a fair criminal process. The rule that limits access of family members to the courthouse decreases the opportunity for defense counsel to gather information to support a bail application. The result is that more people will remain incarcerated following the arraignment.
We also are concerned about the impact of court closings on the many parents, children, and families who go to the courthouse in order to help support their loved one. Because many families do not have access to child care services, children often accompany the adults. In an effort to save overtime costs courthouses are now being closed during the dinner breaks on weekends. With the approach of winter we are concerned about the impact of the rules that bar courthouse access upon the families and their children.
Access to Clients in Jail
Reductions in court personnel have meant that access to our clients who are produced from the City Department of Correction for court appearances has become more problematic. The combination of late production of clients by the Department and early court closing reduces the effective working day. The 5:00 PM court closing time is enforced in many of the court parts by a mandatory 4:00 PM cutoff. All court calendars must be finished by 4:00 PM and in some courts the cutoff is even earlier. This rule has proven particularly troublesome for CPL 180,80 release arguments in which the defense alleges that the client has not been indicted in a timely way and an argument occurs as to whether there is good cause for the delay. With some frequency, in spite of a clear right to be present at this proceeding, clients are not being produced by the Department in a timely fashion and are thereby being denied the opportunity to participate in this important hearing.
Difficulty in the production of clients to the courtrooms is increasing pressure for criminal defense lawyers to waive the production of clients in a variety of other settings. In addition to the problems caused by the reductions to the court budget, some of the delay in client production is clearly related to budget cuts at the New York City Department of Correction, which has to produce the clients to the courthouse from Rikers Island.
Access to Counsel
The increased emphasis on moving cases quickly through a shortened court work day has created a greater need to address a case in one call of the court calendar. Requests to adjourn a case for a second call until the attorney of record can appear are then frequently not accommodated. We find that this has produced greater pressure for another attorney in the courtroom to “cover” the case. This practice reduces the contact of the client with his or her actual attorney and makes it more difficult to accomplish anything substantive during the court appearance. The attorney covering the case is not as familiar with the matter and is not in as good a position to make important decisions on behalf of the client. Of necessity, cases have to be adjourned in order to allow representation by the proper counsel. The emphasis on a speedy calling of the case affects access to counsel and contributes to unnecessary delay in resolution of the case. Ultimately, the emphasis on speed costs the criminal justice system both unnecessary court appearances and the corresponding costs for incarceration. Greater discretion should be afforded to permit the appearance of the actual attorney on the case.
We have also noticed that the decrease in available court time has meant that adjournments for clients who are not incarcerated are being granted for longer and longer periods of time between court appearances. This inevitably delays resolution of the case. Everyone involved in the criminal justice system has an interest in the quick and fair resolution of a criminal case. Delayed case resolution only adds to the incentive to accept a quicker but less fair case disposition.
I want to thank the New York County Lawyers Association for the opportunity to testify at this hearing and if you have any follow-up questions after the hearing I can be reached at 212- 298-5174.
Gorta/N Y CLA/12-2-11
My name is William Gorta and Pm a reporter for the New York Post covering state courts in Brooklyn.
I’ve been at The Post for 11 years, covering courts for the last three: two in Queens and now Brooklyn. Before that I was the crime editor. I also did rewrite and general assignment reporting in my early days.
But I didn’t start out in journalism. I spent 20 years in the NYPD, retiring in 2000 as a captain. As a lieutenant, I was the ranking officer on the COMPSTAT development team. I spent the 1997-98 academic year on leave: I had won a Fulbright in Public Administration and moved with my wife and three children to England for a year abroad.
While I was on the job, I attended Columbia University’s School of General Studies, having gone back to college in hope of becoming a doctor. Somehow, I wound up with a degree in Literature/Writing, which eventually led me to Columbia Journalism School.
Shortly after I retired from the N YPD, I got a tryout at The Post and have been there ever since.
Since the budget cuts have taken effect, I have written two stories that illustrate the effects that short staffing and shortened hours have on the public.
Most of my work is in Supreme Court, but several newsworthy cases required me to spend long hours in the arraignment part in Criminal Court on Schermerhorn Street.
Without fail, someone would ask, “How come you don’t do a story on the arraignment delays?” Some of the outrage was no doubt generated by constitutional concerns and some, I’m certain, derived from a cutback in weekend overtime hours.
Motivation of sources notwithstanding, the simple truth is I couldn’t write the story because I had no data.
But about a month after the cuts, conditions had apparently become so bad that a source came forward supplied hard numbers on how many defendants were being held more than 24 hours before arraignment.
It wasn’t pretty.
I published a story on My 12 based on my source’s numbers.
On several days during that preceding week, more than half the prisoners awaiting arraignment as court opened had been held more than 24 hours.
On July 4, Independence Day, the day we celebrate the notion of life, liberty and the pursuit of happiness, the number was nearly 60 percent of the total.
OCA supplied me with a different set of numbers that, while somewhat better, essentially confirmed the severity of the problem.
It’s unclear how much longer it took those prisoners to see a judge, but the pace of arraignments can hardly be described as prolific.
As an aside, it seems to me that arraignments – and virtually all court proceedings – could be sped up significantly if the expression, “Briefly, your honor” were removed from the language.
By all reports the pens were crowded and filthy. I’m not going to dramatize the situation by calling it a tinderbox, but levels of frustration and resentment ran pretty high among the released defendants I interviewed for the story.
And, as you all know, there’s no real comeback for people who have been held for unreasonable lengths of time before arraignment.
Habeas corpus would probably take longer than simply waiting for a defendant’s turn to come.
So the only real penalty is the glare of the media.
By the time the story was published officials had already added hours and opened an additional arraignment part on Fridays to try to prevent weekend backlogs, but it simply wasn’t enough.
To their credit, OCA recognized the problem wasn’t going to go away and arranged for overtime money to be restored so that weekend hours could be expanded – not as many hours as there were before the cuts, but it was a significant policy shift.
Of course, the problem of delayed arraignments is not completely solved, but I’m told that things have gotten much better.
As serious as the first story was, the second is particularly grave.
Sixty-five-year-old Alla Kamenev went to Brooklyn Family Court to seek an order of Protection against her ex-husband. But she turned up in the afternoon and, because cutbacks shortened the hours at the Petition Room, she was told to go to Criminal Court several blocks away to see a judge there.
But when she got to Criminal Court, she was referred back to Family Court. She returned to Family Court, only to be ordered back to Criminal Court, at which point she gave up and left 330 Jay Street “in disgust,” according to a source.
It is alleged that the next day, Dimitry Kamenev, her 76-year-old ex-husband, rode up to her on a pink bicycle and shot her several times, killing her.
How did this happen?
Well, all night court functions in Brooklyn Family Court were eliminated with the budget cuts. The Petition Room is supposed to close at 4 p.m., but with courtroom hours shortened to 4:30 p.m., petitioners were being sent from Family Court to Criminal Court at around 3 p.m. – and often as early as 1 p.m., depending on the number of people seeking TOPs.
A procedure was put in place instructing personnel how to process the request orders in Criminal Court.
But the instructions begin with the clerk’s office.
Court officers, the first people a petitioner meets at the court house and the people most asked for direction, were never given the new pages of the playbook.
So, officers working during the day tours continued to refer petitioners to Family Court, oblivious to the policy shift and aided by a court handout that said people requesting orders of protection against kinfolk needed to go to Family Court,
We don’t know what the conflict between the Kamenevs was about and there’s little reason to believe the order would have prevented the shooting. Given the timing, it’s unlikely she would have gotten a chance to serve it.
But that’s not the point.
She needed help and never got the chance to protect herself.
OCA has since informed me they reviewed surveillance footage in Family Court and, not having seen Alla Kamenev, they believe the story to be false.
Well, I’ve never seen oxygen in the air, but I’m reliably informed it exists.
Officials were responsive to the notion that Alla Kamenev could have been shunted from one courthouse to the other without getting help or satisfaction.
A major at Schermerhom Street issued a memo directing court officers in Criminal Court to send anyone asking for an order of protection to the clerk’s office — no matter the time of day.
Officers were barred from ever sending an order-of-protection petitioner to any other agency or facility.
In keeping with their denial on the main points of the story, OCA also denied the existence of the memo, despite it being posted the wall so court officers could read it.
I recognize that the budget cuts were tough calls and I am confident they were made in good faith.
But not everything turns up trumps.
And it would be foolhardy for anyone to think that there aren’t many more stories out there, waiting to be told.
UNITED STATES Of STRICT COURT
SOUTHERN DISTRICT OF NEW YORK
500 PEARL STREET
NEW YORK, NEW YORK 10007-1312
|LORETTA A. PRESKA
August 22, 2011
Michael McNamara, Esq.
Sewar & 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 Hew 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 Siddiaui (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 safety 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 for judges displaced by the Thurgood Marshal I 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 transferor 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 Tune, 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:
- 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;
- 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
- 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 affected by these projected cuts in that:
- We will be able to give less attention and less treatment to our many defendants in need of drug evaluation, testing and treatment;
- We will not receive equipment and upgrades to permit us to monitor our defendants to detect additional crimes, including child pornography;
- 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;
- 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
- 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 m 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 welt 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/M DL/Case Assignment/ECF Help Desk Unit provides support for EOF 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 EOF 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:
- Processing change of addresses for pro se litigants;
- Mailing orders, forms, docket sheets, instructions, information, and manuals to pro se litigants;
- Scanning and docketing pro se filings;
- Mailing Rule 4 service packages to pro se litigants; and
- 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;
- Case assignments and reassignments will be delayed;
- Quality control of docket entries will be decreased, and thus errors will not be promptly corrected;
- Fewer courtroom deputies and interpreters will delay proceedings, both civil and criminal;
- Interactions with counsel in connection with, for example, ECF logins, MDL dockets and the help desk will be delayed, and
- 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 Court.
Best personal regards.
Loretta A, Preska
cc: Stewart Aaron, Esq.
Michael Miller, Esq.
|HIGH-PROFILE CIVIL MATTERS
- Wall Street: Insider Trading, Securities, Corporate Bankruptcies
- SEC v. Stewart—SEC sues Martha Stewart after she sells shares of ImClone stock
- NBA v. NBA Players Association—NBA seeks a declaratory judgment that the players” union lockout is legal
- Christian Louboutin v. Yves Saint Laurent—Plaintiff suing for trademark infringement of its red-soled shoes
- Authors’ Guild v. Google—Authors sue Google for digitizing books and posting them on the internet
|HIGH-PROFILE CRIMINAL MATTERS
- International arms and drug trafficking cases
- United States v. Salameh—charged with bombing WTC in 1993
- United States v. Coke—International drug trafficker whose apprehension in Jamaica was followed by violence
- United States v. Elgabrowny and Rahman—”Blind Sheik” trial
- United States v. El Hage—1998 Kenya and Tanzania embassy bombings
- United States v. Ghailani—East Africa embassy bombings; arrested in Pakistan in 2004 and detained at Guantanamo
|HIGH-PROFILE CRIMINAL MATTERS (cont’d)
- United States v. Muse—Somali pirate who attacked the MV Maersk Alabama
- United States v. Affia Siddiqui—Pakistani woman who tried to attack US troops; after sentencing, riots broke out in Pakistan
- United States v. Madoff— Hedge fund manager charged with perpetrating multi-billion dollar Ponzi scheme
- United States v. Shahzad— Pakistani-born immigrant to the U.S. tries to detonate a bomb in Times Square
- United States v. Arbabsiar— Irani accused of plotting to kill Saudi ambassador
TOTAL CASELOAD AND STAFFING IN THE SOUTHERN DISTRICT
|Screening Line Inside the 500 Pearl Street Entrance (October 2011)
|Line Outside 500 Pearl street (October 2011)
|PRETRIAL AND PROBATION SUPERVISEES
|PROBATION SUPERVISEES BY LOCATION
|PROBATION SUPERVISEES BY LOCATION
(NEW YORK CITY)
New York County Lawyers’ Association
Task Force on Judicial Budget Cuts
Public Hearing, December 2, 2011, 14 Vesey St.
Statement of Hon. Carol Bagley Amon, Chief Judge for the United States District Court for the Eastern District of New York: Impact of Judicial Budget Cuts on the Eastern District
Good afternoon everyone. I would first of all like to thank the New York County Lawyers’ Association and the members of the Task Force for organizing this hearing and for inviting me to speak on this important matter. With me today is Eileen Kelly, the Chief Probation Officer in my district, the Eastern District of New York, who will speak in more detail about the impact of this year’s anticipated budget on the Eastern District’s Probation Department.
Before I turn to the specifics on the impact of the anticipated Fiscal Year 2012 budget on the Eastern District of New York, I would like to make a couple of general observations. First it is not our contention that the Courts are somehow being unfairly singled out for cuts. That is not the case. In years past, Congress in recognition of the critical work done by the judiciary has provided sufficient funding to meet our needs. Even in tight budget years, the courts have fared better than other government agencies. That is not only because of the nature of the work done by the courts and the need to respect the independence of the Judiciary, but also because of the credibility of the courts in the budget process. Since 2004 the courts have employed successful cost containment strategies. Programs and business practices within the Judiciary are continually reviewed to identify where economies and efficiencies are to be achieved. So we come to this current budget crisis not as some bloated bureaucracy but as an institution vital to this country that is already operating as leanly and efficiently as possible, This of course makes the impact of reduced funding felt even more keenly.
A major problem that we face is that no one knows exactly how tight this year’s budget is going to be. The judiciary as a whole is currently operating under a continuing resolution that has been in place since October 1st. That resolution runs until December 16, but it may be extended into the new year. The House and Senate appropriations bills have made it out of Committee, but the subcommittees from both houses ultimately will have to meet and conference in order to reconcile the two bills. Quite frankly it is anyone’s guess when this will happen.
The point is that we have no idea whether we will end up with the funding in the House Bill—which represents a substantial reduction from last year’s budget—the funding in the Senate Bill—which is a bit more generous but still a large cut from last year—or something in between. This uncertainty makes it difficult to quantify the impact of whatever budget eventually gets through Congress, and thus makes it nearly impossible for our Clerk’s Office, Probation Department, and Pretrial Services Agency to figure out how to keep our offices running. As you will see when I turn to the numbers in a moment, we fully anticipate that wherever the budget numbers end up, the judiciary will likely be forced to let go of much needed employees. We are doing our best not to overreact, of course—the last thing we want to do now is lay off dedicated employees or furlough employees when that money can never be recouped—but on some level we have no choice but to plan for the worst and hope for the best.
As I mentioned, although we don’t actually know what our final numbers will be, we have every expectation that they will be daunting. [Post Slide 1] The slide currently on the screen behind me is a vivid illustration of the predicament in which the federal judiciary will find itself if the bill currently in the House is enacted into law.
The red line on the graph represents the on-board staffing levels of the judiciary nationwide, which includes the Clerks’ Offices, the Probation Departments, and the Pretrial Services Agencies. The line is keyed to the numbers on the left vertical axis. As you can see, the bill currently in the House would slash court personnel nationwide by 5000 current employees. This predicted impact is illustrated by the downward sloping dashed line. Again, we don’t actually know if this will be the final budget, but we have to plan as though it is.
The blue line represents another trend, the national judiciary’s total caseload, and this line is keyed to the right vertical axis. As you can see the blue line is moving dramatically in the other direction. The result is that 23% fewer judicial employees must maintain a docket that has swollen 43% since 2009. These numbers are staggering. We are being asked to do far more with far less.
The picture in the Eastern District of New York is largely the same, as you can see from this next slide. Again, the downward sloping red line represents our total staffing—Clerk’s Office, Probation Department, and Pretrial Services—where we will lose 28% of our personnel funding, the equivalent of 120 employees, The blue line is our caseload, which has risen 35% since 2009. The confluence of these factors will affect every aspect of the work the judiciary does in our district. Let me turn first to our Clerk’s Office:
The Clerk’s Office is the engine of our court—we cannot run without it. It includes court administration, docket clerks, human resources, and information technology and maintenance personnel, to name just a few. It takes a large and devoted team to do everything from securing and maintaining our facilities and technology, to administering our case filings, to processing notices of appeal.
The formula developed by the Administrative Office for United States Courts in Washington puts our operational requirements at 157 full-time positions. That is, we need 157 employees to manage our caseload and run our Court, As a result of previous budget cuts, however, we are already down to the funding equivalent of about 138 employees, and we are currently carrying about 140, Based on an estimate that represents the midpoint between the substantially reduced funding level in the House bill and the funding level of Fiscal Year 2011, the potential reductions we face this year leave us with funding representing 130 full-time employees.
The math is simple: we have funding for 27 fewer employees than we need to function, and we are currently carrying 10 more employees than we have funding for. The money has to come from somewhere. We have offered buy-outs and early retirement. By directive of the Judicial Conference of the United States there are no raises, step increases or promotions. If those measures fail we may have to consider furloughs, which we hope would avoid the terrible human toll of lay-offs, but which mean we get one fewer day of work per month from our employees while they get one fewer day of pay.
The impact of these staffing vacancies is acute. To begin with, docketing will be delayed in both civil and criminal cases. We will likely be losing our Appeals Clerk position this year, so it may take longer to process appeals. Staffing shortfalls also increase the risk of errors, which will be less likely to be corrected given the lack of quality control staff.
Another important function of the Clerk’s Office is to ensure the Court’s responsiveness to the public and to the bar. An unresponsive court system would seriously damage public confidence in the judiciary. Without sufficient staffing, restitution to victims will be delayed and it will take longer for the Clerk’s Office to process payments to jurors or to vendors who serve the court. The Office will have trouble responding promptly to public queries. CJA vouchers will face processing delays. In short, perhaps the most visible arm of our court will struggle to provide the public services it is designed to provide.
To operate these indispensable areas of our Clerk’s Office even at this bare bones level will require us to divert funding from elsewhere. For instance, we have placed a freeze on the replacement of broken or outdated equipment. Even a one-year freeze in cyclical replacement of information technology will take us 5-7 years to make up. We have also been forced to restrict cyclical building maintenance to only those issues which pose a safety or security risk. Just as with the IT freeze, it could take several years to catch up on one year’s worth of maintenance.
And again, all of this is exacerbated by the fact that we do not even know what the budget will be. Besides making our budget issues all the more intractable, this has the effect of causing a general sense of unease among our staff and has an untold effect on morale.
The situation is similarly tight in our Pretrial Services Agency, Pretrial Services plays a crucial role in our criminal justice system. The Office of Probation and Pretrial Services in Washington has allocated just over 54 employees to our District to perform this role, But as a result of a number of budget constraints, including this years anticipated budget, our department has funding for only 34 employees. That is 64% of the force the agency needs to discharge its duties.
Pretrial Services’s most important job is pretrial supervision, and our agency has consistently been one of the best in the nation. Our rate of pretrial services violations—which tracks violations of release conditions, new arrests, and supervisees’ failures to appear—is consistently less than half the national average. We are rightly proud of these statistics. The problem is that our workload is rising while our work force is not, resulting in rapidly expanding caseloads.
As a consequence, the quality of our pretrial supervision will surely decline. Face-to-face contact with defendants is crucial to maintaining effective supervision—there is simply no substitute. Our officers handle more than 1,000 monthly visits by defendants, They routinely conduct home assessments, employment and community visits, and visit with drug counselors or therapists who work with defendants. The Agency also runs programs that serve as alternatives to detention.
In addition, our Agency operates one of the largest and most successful location monitoring programs in the country. Such a program requires that officers be ready for alerts 24/7, Our Agency’s officers handled 2,060 alerts in September alone, and 66% of these were at night or on the weekend. All of these functions—the face-to-face meetings, the field visits, the special programs, and the location monitoring—require substantial resources. They depend on incredible flexibility and dedication on the part of our officers. This sort of work does not permit cutting comers.
Another important function of the Pretrial Services Agency is preparing bail reports. Judges need these reports to determine whether a defendant can be released without endangering the community or whether instead the cost of pretrial detention is warranted. If the information in the reports is incorrect or incomplete, it could lead to either the release of defendants who pose a threat to the community—an obvious public safety issue—or to unwarranted detention of defendants who pose little risk—which imposes huge costs on the prison system and unnecessarily incarcerates individuals who have not yet been proven guilty.
As is true of many of the things the judiciary does, cuts in funding end up costing taxpayers just as much or more than what they save. The work our Pretrial Services Agency does is essential to public safety and to the functioning of our criminal justice system. If the agency cannot do its job, the costs are externalized on our community.
Finally, I would like to touch briefly upon the Probation Department, which faces perhaps the harshest impact from this year’s anticipated budget. I am going to be brief because Chief Kelly will provide more details.
The Office of Probation and Pretrial Services (OPPS) in Washington allocates funding for our Probation Department for 151 full-time employees, For reasons that I do not have time to go into folly, we believe that number is too low. In a nutshell, the staffing formula OPPS uses underfunds presentence reports and post-conviction supervision for certain types of offenders—particularly white collar crime, fraud, or organized crime offenders—which our District has in abundance. This means that our staffing allocation is insufficient even before we get to this year’s budget. If funding levels are at the midpoint between the House bill and Fiscal Year 2011, the Department will likely have funding for as little as 140 employees. The upshot is that our Probation Department is far short of the staffing OPPS believes our Department needs—a number which we believe is itself woefully deficient.
As I mentioned, Eileen Kelly, our Chief Probation Officer, is here with me and after I am finished she can give you a much better idea of the impact of all this and the steps her Department will need to take to absorb it. But before I turn it over to her, I will try to give a brief perspective from the bench.
One of the Probation Department’s two main functions, and the one that is most intertwined with the bench, is preparing Presentence Reports. As many of you probably know, PSRs are lengthy reports that judges use to determine what sentence to impose. Settling on a sentence that is fair and just is one of the most important and most difficult jobs a federal judge has. A judge must consider the sentencing range recommended by the Federal Sentencing Guidelines, and then scrutinize every detail of the current offense, the offender’s criminal history, and the offender’s personal background, education, and family life.
I have been on the bench for 21 years and I have yet to encounter an easy case. Each one is unique, and I would not be fulfilling my oath if I imposed a sentence without first weighing all of the relevant facts. Along with all of the other judges on our court, I rely on the Probation Department to make sure that we have these facts before us.
Preparing PSRs is hard work. It takes time to mine the data and to perform interviews with the offenders. Without sufficient staff, I worry that the quality of our PSRs, which have always been exemplary in my experience, will decline. If a judge feels she has insufficient facts to impose a considered sentence, she has no choice but to adjourn. The result will be inefficiency and delay in the dispensing of justice.
In sum, it is imperative for Congress to fund the Judiciary at the level it needs to carry out its duties, and for the public to understand the necessity to do so. Thank you again for having me here to discuss this important issue, and thank you to the members of the task force for your work on behalf of the judiciary.
* * *
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
225 CADMAN PLAZA EAST
BROOKLYN, NY 11201
HONORABLE CAROL BAGLEY AMON
November 17, 2011
Michael J. McNamara, Esq.
Seward & Kissel LLP
One Battery Park Plaza
New York, NY 10004
Re: Impact of Proposed Budget Constraints
Dear Mr. McNamara:
It was good to meet with you and your colleagues to discuss the impact of the planned budget cuts on the Eastern District of New York. I write to follow up on that conversation, and to provide a fuller picture of the difficulties facing our District. The deep cuts anticipated for the coming fiscal year will affect every aspect of our court. Cumulatively, they threaten to sap the morale of our employees, delay the administration of justice, compromise the court’s responsiveness to the public, and jeopardize public safety.
From the Chief Probation Officer
Perhaps the most dramatic impact of the anticipated budget cuts will be felt by our Probation Department. Our Department is affected not only by the anticipated financial reductions, but also by the Office of Probation and Pretrial Services’s (OPPS) staffing formula, which under-allocates resources to our District. These dual constraints have already forced our Department to offer early retirement packages and buy-outs and to institute a furlough plan that requires employees to take one day off a month. But even these steps will not absorb the budget cuts. Lay-offs might be next. The bottom line is this: our Department has funding this year for 140 employees, a number that is seven short of OPPS’s allocation, which itself imposes dire constraints on the Department.
One impact of these staffing vacancies is on the preparation of presentence reports (PSRs). PSRs play a significant role in ensuring the fairness of criminal sentencing. This is more true than ever since United States v. Booker rendered the Federal Sentencing Guidelines advisory. The PSRs prepared by our Department have traditionally been thorough and detailed, the result of exhaustive research into defendants’ personal histories. Without sufficient staff, however, it will be difficult to produce PSRs that are both thorough and timely. And because the fairness of criminal sentencing is non-negotiable, delay and postponement are inevitable.
The impact is even more troubling on the post-conviction supervision side of our Department. It is difficult to over-state the importance of effective post-conviction supervision. Because it is so much more cost-effective than continued incarceration, supervised release saves untold taxpayer money. Our Department is among the very best in the United States, with recidivism rates routinely half the national average. The results speak for themselves:
These outcomes are the result of the tireless work of our officers and of the advanced approach to supervision our Department has aggressively implemented. Our Department uses technology and statistical data to determine the risk presented by given individuals on supervised release. Our District has established highly effective drug courts, which require individuals on supervised release to appear in court every month, but which also require more regular involvement of probation officers. Officers with generalized caseloads also conduct cognitive behavioral therapy sessions and repeated home visits, which often reveal contraband, violation of supervised release conditions, or further crime. Those officers with more specialized caseloads conduct location monitoring of high-risk individuals and cyber-monitoring of sex offenders. Alerts can and do go off at any time—our officers must be ready. All of these techniques work, but only if they are properly staffed and funded.
On top of this, many of the individuals our Department supervises were convicted of organized crime or white-collar crime. Because these individuals tend to be older, non-drug users who did not use firearms in furtherance of their crimes, they are designated as low-risk and the Department receives funding as though they pose little danger to the community. But these individuals are anything but low risk. Indeed, they are the sorts of offenders who are highly likely to reconnect with old associates and resume criminal activity. The safety of our community demands intense supervision, and the Department must divert resources from elsewhere to supervise them.
Our Department has tried to cope with these shortfalls by transferring hundreds of supervision cases to an administrative caseload. Offenders in the administrative caseload—563 at last count—are low-risk offenders who have been compliant for 18 months. This entire caseload is supervised by one officer and one administrative assistant. By transferring cases to the administrative caseload, our Department can keep workloads for other officers in the 40s and 50s. But this is an imperfect solution. To begin with, the Department will need to rely upon it increasingly by placing individuals on administrative rosters before they have proved compliant. Moreover, some individuals simply cannot be moved to the administrative caseload in good conscience. Public safety requires supervision.
Asking our Department to do the same work with fewer resources will also lead to diminished morale. The Department may struggle to retain its best and most experienced officers. Loss of experienced officers may well result in lower quality work, delays in dispensing justice, and the community being put at risk.
- Our Probation Department faces cuts not only from the financial plan reductions but from the Office of Probation and Pretrial Services’s new staffing formula.
- The reductions mean that the Department has too few employees to complete timely and thorough presentence reports. This will lead to delay in the administration of justice.
- Our Department’s outcomes—a result of several highly-effective but difficult to implement techniques—have been superb. This sort of effective post-conviction supervision saves money, but staffing shortfalls are sure to render our supervision less effective. At least, this costs taxpayers money. At most, it puts the community at risk.
- The immense cuts in full-time employees and the upheaval the Department has gone through to compensate for budget cuts is likely to hurt morale. This will make retention more difficult.
From the Chief Pretrial Services Officer
In Fiscal Year 2012, OPPS’s formula allocated 54.43 full-time employees to the Eastern District’s Pretrial Services Agency. As a result of three separate budget constraints, however, the Agency has enough funding for only 34 employees. This means our Agency is currently staffed at 64%, with no funding to fill the vacancies.
At the same time, the past three years have seen the number of pretrial investigation and supervision numbers steadily increase.
||Total Cases Activated For Investigations
||Total Cases Under Supervision
*Projection based on third quarter figures
The result is that the caseloads of our generalized officers have risen into the 70s and 80s and that the caseloads of our specialized officers have risen into the 50s. Our officers are stretched far too thin.
The major consequence of this is that the quality of pretrial supervision will decline. Face-to- face contact with defendants is crucial to maintaining effective supervision. Our officers handle more than 1,000 monthly visits by defendants. They conduct routine home assessments, employment and community visits, and visit with drug counselors or therapists who work with defendants. The Agency also runs programs that serve as alternatives to detention. One example is Special Options Services, which gives young defendants with minor or no criminal histories the opportunity to seek drug counseling, education, or work opportunities.
In addition, our Agency operates one of the largest and most successful location monitoring programs in the country. Such a program requires that officers be ready for alerts 24/7. Our Agency’s officers handled 2,060 alerts in September alone, and 66% of these were at night or on the weekend. All of these functions—the face-to-face meetings, the field visits, the special programs, and the location monitoring—require substantial resources. Together, they require incredible flexibility and dedication on the part of our officers.
As with our Probation Department, our Pretrial Services Agency’s results are among the best in the United States. Our percentage of pretrial services violations, which tracks violations of release conditions, new arrests, and failures to appear among defendants, is consistently less than half the national average:
But inadequate staffing caused by budget constraints will likely lead to undeterred or undetected criminal activity and violation of bail conditions. It will also sap the effectiveness of the special programs the Agency has developed as alternatives to detention.
Another potentially troubling consequence of the budget shortfall is that overworked officers will have less time to complete thorough bail reports. The information contained in these reports is essential to determining whether a defendant can be released without endangering the community or whether instead the cost of pretrial detention is warranted. If the information in the reports is incorrect or incomplete, it could lead to either the release of defendants who pose a threat to the community—an obvious public safety issue—or to unwarranted detention of defendants who pose little risk—imposing costs on the prison system and unnecessarily depriving yet-to-be convicted defendants of their freedom.
Lastly, such a burdensome caseload could diminish morale and make retention of experienced officers more difficult. This would only exacerbate the problems outlined above.
- Our Pretrial Services Agency is currently staffed at 64% of its operational requirements. The budget cuts make it impossible to fill these vacancies. At the same time, the Agency is saddled with an increasing caseload.
- As a result of each officer’s expanding caseload, the quality of pretrial supervision will decline. This would likely lead to further criminal acts or violations of bail conditions. This endangers our community.
- In order to maintain the Agency’s stellar supervision outcomes, resources will need to be diverted from highly effective programs like Special Options Services, which give certain offenders the opportunity to demonstrate acceptance of responsibility and commitment to lawful behavior before they are sentenced.
- Increased workload on our officers will compromise the quality of the Agency’s bail reports. Imperfect or incomplete information in bail reports could lead to either over-detention of defendants or release of defendants who pose a risk to the community.
- The above issues will lead to diminished morale, which in turn may hamper the retention of experienced officers.
From the Clerk of Court
The current staffing formula allocates 157 positions to our Court, but reductions over the past several years have left us with funding equivalent to 138.2 positions. This number is down to 130 after the anticipated budget cuts of this fiscal year are applied. This leaves our court twenty-seven employees short, or at only 83% of our operational requirements, all while our docket continues steadily to grow.
The impact of these staffing vacancies is acute. To begin with, docketing will be delayed. This delay will be felt in both civil and criminal cases. Staffing shortages will also have a significant impact on Notices of Appeal, which must be processed manually by the Clerk’s Office. This is because we will likely be losing our Appeals Clerk position so that this employee can assist in other areas. In addition to these delays, staffing shortfalls will result in more errors, and the lack of quality control staff makes it less likely that such errors will be detected and remedied after the fact.
The diminished staff will also hamper the court’s responsiveness to the public and to members of the bar. Restitution to victims may be delayed. It will take longer for the Clerk’s Office to process payments to jurors or to vendors who serve the court. The Office will have trouble responding to public queries promptly and thoroughly. CJA vouchers will face processing delays. In short, perhaps the most visible arm of our court will struggle to provide the public services it is designed to provide.
Other departments essential to the internal operations of the court—automated services, building maintenance, and human resources, to name a few—will also feel the impact of staffing vacancies. For example, we currently have insufficient Information Technology staff to install, test, and implement new versions of CM/ECF in a timely manner. And although day-to-day delays in troubleshooting technology issues or repairing building facilities seem minor, cumulatively they reduce efficiency and damage morale.
What is more, finding the funds for even this trimmed payroll requires us to divert the funding of certain court departments and to tighten the belts of others. For instance, we have placed a freeze on the replacement of broken or outdated equipment. Even a one-year freeze in cyclical IT replacement will take us 5-7 years to make up. We have also been forced to restrict cyclical building maintenance to only those issues which pose a safety or security risk. Just as with the IT freeze, it could take several years to catch up on one year’s worth of maintenance.
- The anticipated budget cuts will result in twenty-seven vacancies on our staff. Even meeting this payroll will require substantial diversion of resources from other departments. Meanwhile, our docket continues to grow.
- Staffing shortfalls will cause delays in docketing, processing appeals, providing restitution to victims, and paying jurors and vendors of the court.
- These shortfalls will also render the Clerk’s Office less responsive to the public and to members of the bar.
- Staffing vacancies in departments responsible for the internal functioning of the court will reduce efficiency.
- Freezes on cyclical IT and building maintenance will force our employees to work with broken or obsolete technology and lead to the deterioration of our courthouse.
- The above issues will reduce public confidence in the judiciary and the morale of the court’s employees.
Thank you again for your work on behalf of the Eastern District. Please do not hesitate to contact me if I can be of further assistance.
Very truly yours,
Eastern District of New York
New York County Lawyers’ Association
Task Force on Judicial Budget Cuts
Public Hearing, December 2, 2011, 14 Vesey St.
Statement of Eileen Kelly, Chief Probation Officer: Impact of Judicial Budget Cuts on the U.S. Probation Department for the Eastern District of New York
For the past several years, Probation in the Eastern District of New York has been losing staff through attrition, early retirements and buy outs. As early as 2004, we were forced to lay off 24 support staff members due to budgetary cuts and as a result officers are now doing both officer and clerical work. The story continues. Last year we were able to avoid large scale lay offs because of early retirements and voluntary furloughs. This year, however, despite reducing spending in all areas, we will be unable to make payroll costs by a significant amount. In anticipation of our projected salary shortfall, we have numerous planned strategies, one of them a significant furlough plan. The furlough plan, which began on October 1st requires each staff member, beginning with me, to take one mandatory furlough day per month. This measure will reduce our payroll costs and deficit, but it will not come close to closing our anticipated budget gap.
Our full year plan, once a budget is passed, calls for the loss of several positions, which will be addressed through attrition, early retirements, buy outs and lay offs. This despite a workload increase, as evidenced in Chief Judge Amon’s presentation. Although it has been difficult these last several years to provide exemplary service to our bench, the Bureau of Prisons, the Sentencing Commission, more than 4,000 annually supervised offenders and our community, while being understaffed, we have done so with great success.
The current budget forecast places us in a much worse position to continue doing everything we do. We do not yet know what our budget will be—a fact that makes planning even more difficult—but I’ll try to give you some idea of what our numbers might look like. Based on a Budget at the midpoint between what we received in Fiscal Year 2011 and what the Bill currently before the House would appropriate this year, I will be approximately $ 1,344,656,76 short on payroll, and this is despite reductions in our workforce last year through 6 early retirements and buy outs. This year’s expected deficit translates to the equivalent of roughly 24 employees’ salary costs. As I already mentioned, we have instituted furlough days, which will save us approximately $633,200, the equivalent of approximately 11.5 positions. I have applied for authority to offer buy outs and early retirements again this year as an incentive to reduce more staff and I have been working with staff and other Chiefs to assist those interested in leaving to work in other districts. I estimate we may lose 6 more staff members this year through such attrition. However, adding up the savings from mandatory furloughs, buy outs, early retirements and employees relocating to other districts, we will still have a funding shortage that I have to find out how to manage. I am doing all I can to keep our staff in tact so that we can continue to provide our statutorily required services, but eventually my options are bound to run out.
It goes without saying how deeply concerned I am about our future. I simply cannot ask staff to continue to do more with less. One can easily recognize how difficult it is to expect excellence and maintain a positive morale from a staff who no longer receive raises or cost of living adjustments, and is already faced with the salary reductions furloughs cause. They now earn less, have more work and have less available time at work to get it all done.
Chief Judge Amon already spoke about one of our important functions, the preparation of presentence reports, so I will focus on our other primary task, post-conviction supervision. By way of background, supervision officers are tasked with supervising offenders sentenced to probation and released on supervised release to our district. They establish re-entry plans, conduct pre-release investigations and verify through numerous methods the housing and job environments in which their offenders live and work. They must verify community service work, collect fines and restitution, and schedule and monitor offenders on location (electronic) monitoring and GPS. They also monitor internet use by convicted sex offenders and cyber criminals, encourage and track offenders’ attendance in educational and vocational programs, remain involved in numerous modaiities and types of substance abuse and mental health treatment, and ensure that the offenders comply with their court ordered conditions of supervision.
As many of you know, the offenders often fail to comply with the conditions of their release. As a result, the officers must appropriately respond to their violations in order to maintain program integrity and the safety of our districts communities. Furthermore, in response to national re-entry initiatives and laws such as the Second Chance Act, we now collaborate with community stake holders, community based programs, and additional treatment facilities. We facilitate groups that are designed to address and re-orient criminal thinking in an effort to attain better outcomes. This is in addition to handling the traditional responsibilities of attending court appearances, conducting urine testing, doing community outreach, performing searches and seizures of contraband, making contact with local law enforcement and learning, using and teaching offenders to use new technology, We have also been working to develop and implement new techniques like Evidenced Based Practices, which allow us to track the effectiveness of all of our services. And we have been doing all of this with far less support. This undermines the goals of our officers’ work. I understand that every organization must prioritize, but the resources our Department has to work with put us to some very difficult choices. Work that is essential to improving the lives of offenders and protecting the community, and even work that I believe to be mission critical, may have to take a back seat to work presenting more immediate risk, such as location monitoring or the monitoring of predatory sex offenders.
Measuring success is often difficult; it is always easier to recognize failure. I submit that although much of what probation does is difficult to measure, it is vital to a safe community and to an effective criminal justice system. A probation officer’s work is extremely difficult and complex. They work with a constant focus on reducing risk and recidivism. They work to improve the lives of offenders and their families, which serves to reduce the obstacles convicted people must face. Their work is critical to meet the goal society has set for its community corrections professionals. Budget cuts that jeopardize their effectiveness are extremely short sighted. This is because our Department provides a service which protects our community and reduces recidivism at a fraction of the cost of incarceration. Probation officers are a tremendous asset to our community and should be maintained and more importantly allowed to spend time handling their case work.
As I mentioned earlier, we understand that in tight budget times we must prioritize. In response to cost containment initiatives, we have restructured our operations so that we can continue to keep our officers’ caseloads manageable. Some relief is offered through our ability to place less emphasis on supervising lower risk offenders by placing them into larger, administrative caseloads. Although based upon research and funding we could justifiably place most of our low risk cases in administrative caseloads, we do not. Rather, we individually assess offenders and provide full supervision of those who pose an identifiable risk to the community, even when they otherwise receive a “low risk” rating on the nationally utilized risk assessment tool. Evidence supports reduced supervision of low risk offenders, but it is not appropriate for all low risk offenders. We have, and should always, continue to scrutinize all offenders and provide an appropriate level of supervision and services to all offenders, even though we are not provided the funding to do so.
Other unfunded areas include the operation of alternative programs, like drug and re-entry courts. As you may know, we have three such alternative court programs in the Eastern District, which we call our STAR Court. Each of these programs requires an enormous amount of intensive supervision, time and effort. Despite the lack of individualized funding for this added work, we continue their operation because we believe in them.
Continued budget cuts threaten our efforts to provide many services, however, and in fact may place all of these special programs and diligent efforts at risk. It goes without saying that I am a firm believer in what we do at probation. There are no studies available to describe the outcome reducing our services will have, but one can easily predict the negative consequences that failing to supervise convicted felons closely may bring. What I can tell you, with absolute certainty, is that federal supervision works—the research backs it up. In fact, federally supervised offenders have much lower recidivism rates. The national recidivism rate for the United States Probation Service is 30%, far lower than the more significant rate found among state offenders. And I am proud to report that our recidivism rate in the Eastern District is dramatically lower than even this national federal rate, Our rate is just over 14%, less than half the national federal average. These impressive outcomes cost some money, but they save more in the long run.
In conclusion, I will simply point out that what we are doing at probation is important, effective and a true service to our community. It is also, in fact, a cost savings to the taxpayers. I truly hope that this will be recognized in our congressional appropriation so that we can continue the excellent service we provide to the Court, the community and its offender population.