IN RE: APPROVAL OF THE JUDICIAL EMERGENCY DECLARED IN THE DISTRICT OF ARIZONA.

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Judicial Council of the Ninth Circuit.

IN RE: APPROVAL OF THE JUDICIAL EMERGENCY DECLARED IN THE DISTRICT OF ARIZONA.

Decided: March 02, 2011

Before KOZINSKI, Chief Judge, HUG, THOMAS, FISHER, GOULD, and RAWLINSON, Circuit Judges, A. COLLINS, HUNT and WARE, Chief District Judges, and McNAMEE and WHALEY, District Judges.

ORDER

On January 20, 2011, Chief Judge Roslyn Silver declared a thirty day judicial emergency in the District of Arizona pursuant to 18 U.S .C. § 3174(e). Finding no reasonably available remedy, the Judicial Council agreed to continue the judicial emergency for an additional one-year period and suspend the time limits of 18 U.S.C. § 3161(c). The continued judicial emergency will end on February 19, 2012.

The attached Report of the Judicial Council of the Ninth Circuit Regarding a Judicial Emergency in the District of Arizona constitutes the findings of fact and conclusions of law of the Judicial Council justifying a declaration of judicial emergency pursuant to 18 U.S.C. § 3174. This report was submitted to the Director of the Administrative Office of the U.S. Courts. See 18 U.S.C. § 3174(d).

REPORT OF THE JUDICIAL COUNCIL OF THE NINTH CIRCUIT REGARDING A JUDICIAL EMERGENCY IN THE DISTRICT OF ARIZONA

Submitted to the Administrative Office of the U.S. Courts Pursuant to 18 U.S.C. § 3174(d)(1)March 2, 2011

On November 24, 2010, the late Chief District Judge John Roll initiated the process to declare a judicial emergency in the District of Arizona under 18 U.S.C. § 3174. He reported a crushing criminal caseload and inadequate judicial resources, and sought the Ninth Circuit Judicial Council's approval in declaring an emergency that would suspend the time limits of the Speedy Trial Act (STA) for bringing accused criminals to trial. This request is virtually unprecedented: only two circuit courts have approved a judicial emergency under 18 U.S.C. § 3174(e) since the Speedy Trial Act was enacted, both occurring over 30 years ago.

With existing circumstances already dire, the tragic death of Judge Roll on January 8, 2011, caused Chief District Judge Roslyn Silver to declare a judicial emergency under 18 U.S.C. § 3174(e). This judicial emergency period commenced on January 20, 2011 and ended February 19, 2011. Chief District Judge Silver sought the Judicial Council's approval to extend the suspension of time limits for one year pursuant to 18 U.S.C. § 3174(b). After gathering additional data, and engaging in extensive discussion about the extraordinary circumstances, the Judicial Council found no reasonably available remedy, and thus agreed to declare a judicial emergency and suspend the time limits required by 18 U.S.C. § 3161(c) for one year. The continued judicial emergency commenced on February 20, 2011, and will conclude on February 19, 2012.

Under 18 U.S.C. § 3174(d), the Judicial Council hereby submits to the Administrative Office: (1) the District of Arizona's application for a declaration of a judicial emergency, (2) a written report stating in detail the reasons for granting the application, and (3) a proposal for alleviating congestion in the district.

I. A Judicial Emergency Exists in the District of Arizona

A. 18 U.S.C. § 3174: the Judicial Emergency Provision

According to 18 U.S.C. § 3174(a), upon application by the district, the judicial council “shall evaluate the capabilities of the district, the availability of visiting judges from within and without the circuit, and make any recommendations it deems appropriate to alleviate calendar congestion resulting from the lack of resources.” If a judicial council finds no reasonably available remedy, it may declare a judicial emergency and suspend the 70-day time limit for a period up to one year, instead allowing up to 180 days before a trial must commence. See 18 U.S.C. § 3174(b). The time limits to try detained persons “who are being detained solely because they are awaiting trial” are not affected by the emergency provision. Id. If the time limits are not suspended, the sanction for not bringing a defendant to trial within 70 days of the filing of the indictment is a dismissal of the indictment. See 18 U.S.C. § 3162(a)(2).

The statute does not specify what qualifies as an emergency or what factors to assess before determining that there is “no reasonably available remedy.” In the legislative history of the Speedy Trial Act, many members of Congress commented on the importance of a court's resources to be able to comply with the Act's time limits, and the ability to suspend time limits if a court could not meet those requirements. See 120 Cong. Rec. 41,773, 41,775 (1974). The legislative history supports that an emergency situation would include the death or incapacity of a judge. Id.

Congress did not intend that a district court demonstrate its inability to comply with the STA by dismissing criminal cases and releasing would-be convicted criminals into society. See H.R.Rep. No. 93-1508 at 80-82, reprinted in 1974 U.S.C.C.A.N. 7401. In fact, the emergency provision has been used twice previously to avoid imminent criminal dismissals as a sanction for non-compliance. See United States v. Bilsky, 664 F.2d 613, 619-20 (6th Cir.1981) (Sixth Circuit suspended time limits for one year in the Western District of Tennessee shortly after the Speedy Trial Act became effective in 1980); United States v. Rodriguez-Restrepo, 680 F.2d 920, 921 at n.1 (2d Cir.1982) (Second Circuit approved emergency for the Eastern District of New York, noting the district's “burgeoning caseload and calendar congestion.”).

In addition to the statutory judicial emergency, as outlined above, the District of Arizona also has a “judicial emergency” as defined by Judicial Conference policy. A vacancy on a district court is considered an “emergency” if the court's “weighted filings” exceed 600 per judgeship. The District of Arizona's weighted filings, 653 per judgeship, are high enough that Judge Roll's judgeship became a judicial emergency immediately upon his January 8 murder. See Russell Wheeler and Sarah Binder, Do Judicial Emergencies Matter? Nomination and Confirmation Delay during the 111th Congress. The Brookings Institute, Feb. 16, 2011, at 1, available at http://www.brookings.edu/pap ers/2011/0216_judicial_emergencies_wheeler_binder. aspx.

B. The District of Arizona's Application

The District of Arizona's application includes the late Chief District Judge Roll's letter dated November 24, 2010, Chief Judge Silver's letter dated January 25, 2011, and Chief Judge Silver's Declaration of a Judicial Emergency in General Order No. 11-02. See Tabs A-C. In his letter, Judge Roll reported that the District of Arizona has the sixth-highest weighted and the third-highest un-weighted caseload in the nation. In Fiscal Year (FY) 2009, the District of Arizona ranked first in the Ninth Circuit and third in the nation in criminal case and defendant filings, an increase of 65% since 2008.

This increase particularly affects the Tucson division. In his November 24, 2010 letter, Judge Roll explained that the then four active judges and one senior district judge in Tucson were scheduled at that time to hear 919 trials, including 893 jury trials, 73% of which involve either immigration or drag charges. See Tab A at pp. 2-3. It has been the practice of the Tucson judges to set 30 cases for jury trial each Tuesday, but the district judges cannot preside over more than two trials per week. Clearly, that schedule is premised on the likelihood that most cases will plead out, or defendants will agree to a continuance. Now, with Judge Roll's death, resulting in two vacancies on the Tucson bench, the situation has become intolerable.

As further described by Chief Judge Silver, since the death of Judge Roll, the three remaining Tucson judges are facing over 1,000 felony cases each. See Tab B at p. 1. Judge Roll's death raised the number of vacancies in the District of Arizona to three, with a vacancy created in Tucson when District Judge Zapata took senior status, and another created in Phoenix when Judge Murguia was elevated to the Ninth Circuit Court of Appeals. Id. At this time, there are no nominees for these three vacancies.

II. Reasons for Granting the District of Arizona's Application

The District of Arizona's application sets forth the reasons why a judicial emergency exists in Arizona. The data detailed below shows that the District of Arizona has calendar congestion because of an inordinate amount of criminal cases, criminal defendants, and a lack of judicial resources.

A. Current Caseload Status of the District of Arizona

1. Criminal Docket

In FY 2009, the District of Arizona ranked first in the Ninth Circuit and third in the nation for criminal case filings. The national average of criminal felony filings per judgeship was 97 during FY 2009. During this same period, each Arizona district judge averaged 328 criminal felony filings, but in the Tucson Division, this number was 652 filings per judge. The picture becomes bleaker when one looks at the number of criminal defendants, not just the number of cases. In Arizona, there have been 6,922 criminal defendants (4,913 were in Tucson) during Calendar Year 2010, a 33.9% increase over the previous year. We incorporate by reference the numbers for FY 2008 through FY 2010 for felony case filings, felony defendant filings, felony case sentencings, and felony defendant sentencings as listed in Judge Roll's November 24, 2010, letter. See Tab A at pp. 3-4.

Since Judge Roll's criminal caseload has now been distributed among the three active district judges in Tucson, their caseloads are even more staggering. As of January 31, 2011: Judge Collins had 972 criminal cases, and 1,218 criminal defendants; Judge Jorgenson had 1,005 criminal cases, and 1,222 criminal defendants; and Judge Bury had 963 criminal cases, and 1,182 criminal defendants. If filings continue at the same pace as the past 12 months, the active judges will receive an average of 1,548 criminal defendants In Calendar Year 2011.

The District of Arizona's magistrate judges are overburdened as well. In FY 2009, its magistrate judges heard 20,952 petty offense cases-second highest in the nation, the first being the Southern District of Texas. Most of the petty offense cases were heard in Tucson (over 17,000). In addition, magistrate judges in Arizona heard 1,016 Class A misdemeanor cases-second highest in the nation, out of a total of 8,700 such cases nationwide.

2. Civil Docket

The District of Arizona is also experiencing inordinate pressure with its civil caseload. Three percent of civil cases filed in Phoenix, and 5.6% of the Tucson cases, have been pending over 3 years as of December 31, 2010, a total of 3.4% for the district. Of the motions filed in this district, 10.6% were pending over 6 months as of January 18, 2011. Because of the overwhelming caseload, in FY 2009, Arizona ranked an unenviable 54th in the nation and 6th in the circuit for time from filing to trial in civil cases, and 35th in the nation and 7th in the circuit in time to disposition.

These percentages demonstrate the pressure of the civil caseload and motion docket at all times. Given that these numbers were generated when the District of Arizona had no vacancies, and now there are three vacancies with no nominees, the backlog will continue to grow. We note that Circuit Judge Tashima graciously volunteered to take on Judge Roll's civil docket, which will help the District of Arizona's overburdened district judges.

3. Capital Docket

The District of Arizona has a large number of inmates on death row. Currently, there are 135 individuals on death row, virtually all of whom will file petitions for a writ of habeas corpus in the federal district court. These cases consume an enormous amount of judicial and staff resources. Within the Ninth Circuit, only California has a higher number of death row inmates. The District of Arizona has also had a large number of federal death penalty cases prosecuted; 13 cases involving 32 defendants eligible for the death penalty have been filed since 1999.

4. Overall Caseload

In FY 2009, Arizona carried a weighted caseload of 603, and an unweighted caseload of 860 cases per active district judge (which was third highest in the nation). In FY 2010, Arizona's weighted caseload was 653, ranking ninth highest in the nation (the unweighted caseload data is not yet available). The higher ranking districts include districts in other border states or districts with multi-district litigations (MDLs).

B. Border Patrol Program and USAO Resources

The District of Arizona's criminal caseload has grown because the Department of Homeland Security has increased border enforcement, and the United States Attorney's Office has increased its efforts to prosecute these cases along the United States-Mexico border. See Tab D: Administrative Office of the United States Courts: Report on the Impact on the Judiciary of Law Enforcement Activities along the Southwest Border, prepared for the U.S. House of Representatives and Senate Committees on Appropriations (July 2008) (“AO Report”). Operation Streamline, a program that requires criminal prosecution and imprisonment of all individuals unlawfully crossing the border, eliminated the discretion traditionally reserved by United States Attorney's offices to limit prosecution to immigrants with criminal records or previous illegal border-crossings. Id. at pp. 1-7. This program has led to a burgeoning number of federal criminal prosecutions in all districts bordering Mexico, but the increase has been particularly pronounced in the District of Arizona.

In the few years since Operation Streamline commenced, the United States Attorney's Office in Tucson has doubled its number of prosecutors and empaneled a third grand jury in January 2011. The United States Attorney's Office for the District of Arizona reports that it added 42 AUSAs since 2006, and filled eight other AUSA vacant positions. See Tab E: United States Attorney District of Arizona “Border Security Fact Sheet June 2010.” There are currently 170 AUSAs in the District of Arizona, a 62% increase over the past 10 years. See http:// www.justice.gov/usao/az/office_overview.html.

There has also been a dramatic increase in the number of U.S. Border Patrol and other federal law enforcement agents in Arizona. Id. In FY 2009, the Border Patrol apprehended approximately 241,000 people in the Tucson Sector and seized well over 1 million pounds of marijuana. Due to this dramatic increase in resources, the USAO was able to investigate and prosecute 3,200 felony and 22,000 misdemeanor illegal immigration cases in FY 2009, in addition to prosecuting other border-related crimes involving drug and firearms smuggling. Id. at p. 1.

All Operation Streamline cases resulting from Border Patrol apprehensions in the Tucson Sector (comprised of 262 miles of international border, extending from the Arizona border with New Mexico to the Yuma County line) are heard at the Evo A. DeConcini Federal Courthouse in Tucson. The 2008 AO Report deemed this area the “the busiest sector along the entire border.” See Tab D: AO Report at p. 6. Presently, Tucson division magistrate judges hear 70 Operation Streamline cases per workday. During Calendar Year 2010, the Tucson Division disposed of 20,066 immigration petty offense cases, of which 16,981 were part of Operation Streamline.

In fact, the Department of Justice asked for a funding increase of $231.6 million for FY 2010 to support its immigration enforcement along the southwest border, including Operation Streamline. The DOJ request includes $8.1 million to fund new USAO positions in response to the rising caseload along the U.S.-Mexico border. See U.S. Department of Justice, Fiscal Year 2010 Budget Request (2009), available at htt p:// www.usdoj.gov/jmd/2010factsheets/pdf/safeguardingour-swb.pdf. According to the 2008 AO Report, an additional $100 million was appropriated in FY 2008 to the Department of Justice, including $7 million to hire additional AUSAs and support staff, and in FY 2009, the Department of Justice requested $100 million in new funding for the Administration's Southwest Border Enforcement Initiative, including $8.4 million to hire another 50 AUSAs along the border. See Tab D, AO Report at p. 8.

There has been no correlating increase in Article III judgeships, and as noted above, there is a further significant decrease in judicial resources with the three current vacancies.

III. Proposal for Alleviating Congestion

A. Visiting Judges

The Ninth Circuit maintains a robust and vigorous visiting judge program that provides visiting judges to districts requiring assistance each year. In the past, the Circuit has successfully addressed the lack of judicial resources in districts throughout the Ninth Circuit, including the Southern District of California, the Central District of California, the District of Montana, the District of Idaho, and the District of Arizona. Most recently, the Circuit recruited more than 80 visiting judges to assist the Eastern District of California, which the individual judges assuming between 15 and several hundred cases, resulting in nearly 900 case terminations to date.

The District of Arizona has been employing visiting judges to the fullest extent possible. As of this writing, 36 judges from within and outside the Ninth Circuit have been designated to assist the court in 2011, serving one-to-four-week tours in the district. In addition, judges from Alaska and the Eastern District of Washington have provided ongoing and long-term assistance to the District of Arizona. With the assistance of the U.S. Judicial Conference Committee on Inter-circuit Assignments, additional visiting judges will continue to be recruited from all across the country for the foreseeable future or until the District receives the additional judicial resources it so desperately needs.

The Phoenix division is limited in the help it can provide to the Tucson division because it handles a disproportionate percentage of the district's civil filings, in addition to approximately one-third of the district's felony cases.

The District of Arizona and the Judicial Council are jointly developing a plan to use visiting judge resources in the most effective manner as possible. However, as will be discussed in more detail, the physical limitations of the courtroom space in Tucson and the necessity of scheduling 30 trials each week severely constrain the ability of the Circuit to provide sufficient visiting judge assistance that will address the criminal docket in Tucson. The District has already adopted an effective case management system, so no further efficiencies can be achieved through any change in court administrative procedure.

B. Courthouse Facilities

Visiting judges are not an adequate short-term fix, nor are they a long-term solution to this problem. See Tab D, AO Report at p. 10. The Evo A. DeConcini United States Courthouse in Tucson has only been able to accommodate one visiting judge at a time, and now can accommodate two with Judge Roll's courtroom available. The Special Proceedings Courtroom is unavailable because it is completely utilized for Operation Streamline proceedings. There are only two other courtrooms not assigned to a judge, one of which is needed each day for felony criminal duty (detention hearings in the morning and initial appearances in the afternoon). Once per week another district judge sized courtroom is needed for arraignments. The magistrate judges typically use their assigned courtrooms both mornings and afternoons each day for felony change of plea and other proceedings. Thus, the visiting judges can only be scheduled to courtrooms as they become available each day. Any visiting judge presiding in a civil trial will likely have to do so in courtrooms borrowed from the bankruptcy court at the Walsh Courthouse down the street.

On September 29, 2010, Judge Roll submitted a statement to Congress concerning the space problems at the Evo A. DeConcini district courthouse. See Tab F: Testimony re: Evo A. DeConcini Courthouse in Tucson Division: Hearing before the Subcommittee on Courts and Policy of the House Judiciary Committee, 111th Cong. (2010) (statement of Chief Judge John Roll). In those comments, Judge Roll responded to a GAO Report stating: “No one familiar with the actual situation in Tucson could reasonably conclude that the DeConcini Courthouse was overbuilt in 2000 or that the Courthouse has any extra available space. In fact, there is a constant search for tenants who will leave the Courthouse to free up additional space.” Id. at p. 9. The GAO's position that the Tucson Division did not need more space had assumed courtroom sharing, which isn't practical in busy border state courts, and also didn't take into account the frequent use of visiting judges. As noted in the 2008 AO Report, the District of Arizona had inadequate facilities for court operations, and Tucson's criminal case filings increased “well beyond the volume projected” when the courthouse was designed. See Tab D: AO Report at pp. 11, 21-22 (noting “serious space limitations.”).

Congresswoman Gabrielle Giffords continues to champion the District of Arizona's space crises. In a letter written February 7, 2011, Congresswoman Giffords' Chief of Staff wrote to the Chairmen of the Committee on Appropriations and the Subcommittee on Financial Service and General Government requesting that GSA work with the DeConcini courthouse tenants to lease auxiliary space. See Tab G: Letter from Pia Carusone, Congresswoman Giffords' Chief of Staff, (misdated February 7, 2010). Because the courthouse is out of space, and the United States Attorney's Office lease in the DeConcini Courthouse doesn't expire until 2013, the judiciary would have to spend an inordinate amount of money to relocate them pursuant to 41 C.F.R. § 102-85.210.

C. Other Methods to Expedite Cases

While it awaits the judicial resources it needs, the District of Arizona, with the help of this Judicial Council, will employ whatever techniques, innovations, and other methods it can to expedite cases. One such idea that the District of Arizona is currently evaluating is an offer from the Ninth Circuit's Office of the Circuit Mediator for its team of mediators to help with the caseload burden.

The mediators would help with only civil cases, and only those in which both parties are represented by counsel. Once the district and the Circuit Mediation Office are able to consider and work through the logistics, mediators could travel to Arizona to conduct mediations in cases that would normally have been conducted by a magistrate judge, thereby freeing up some time for the District of Arizona's magistrate judges to focus on their caseload. Further, if this option becomes available, the district judges may suggest mediation to civil parties in cases not traditionally referred to mediation.

D. Additional Resources Needed to Comply with the STA

The District of Arizona's congestion may be alleviated in the long term only if its vacancies are filled and new judgeships created. This district does not have the resources to keep pace with the current prosecution of border-related cases.

1. Judgeships and Filling Vacancies

The Committee on Judicial Resources of the Judicial Conference of the United States recently recommended that the District of Arizona be authorized five additional judgeships (four permanent and one temporary). See Tab H: JCUS Report dated January 10, 2011 at pp. 5-6. The Committee also recommended converting a current temporary position to permanent status. The Federal Judgeships Act was introduced in the last Congress (S. 1653 and H.R. 3662) but no action was taken on the proposed legislation. No judgeships bills have been introduced yet in the 112th Congress.

Arizona's congressional delegation is well aware of the district's crisis: Judge Roll kept the delegation apprised about increased case filings and judgeship needs, and House Representatives Gabrielle Giffords and Ed Pastor recently wrote a joint letter acknowledging the crisis and supporting the District of Arizona's request for the suspension of Speedy Trial Act time limits. See Tab I: Giffords and Pastor letter dated December 21, 2010. Indeed, Judge Roll went to Representative Giffords' “Congress on Your Corner” on January 8, 2011, to discuss this very topic. Judge Roll also advised, on December 10, 2010, that Senators John McCain and Jon Kyl also supported the district's request for a judicial emergency.

The District of Arizona must await Congress to create the recommended judgeships, fill vacancies, and provide other resources. In fact, then Representative Abner Mikva, a sponsor of the Speedy Trial Act, recognized that Congress was responsible to ensure that courts were adequately staffed if it was to impose the Speedy Trial Act time limits. He acknowledged the need to allow for postponement of the Act's requirements if a court had inadequate resources. He wrote in a prepared statement in 1971:

Nevertheless, it may well be that even if all the judges in a given circuit were putting in a full week's work on the bench, and even if the most modern, efficient administrative techniques were employed, we would still find that the available resources are inadequate to achieve the goal of speedy and fair trials.

In this event, Section 3164 allows for a postponement of the speedy trial requirements of Section 3161. The (Judicial Conference) is required to submit legislation to Congress providing the needed additional resources. This places the burden back where it belongs-on the shoulders of Congress. It will then be up to the representatives of the taxpayers of America to decide whether we are serious enough about crime prevention to expend the money and effort necessary to obtain it. In other words, the buck will stop here.

See TAB J at p. 261.

The 2008 AO Report suggested to the Senate and House Appropriations Committees that additional judgeships were needed, and that there had been a lag in the appropriations process, “in that prosecution resources have been provided to the Executive Branch without considering at the same time the impact that these additional resources will have on the Judiciary.” See Tab D, AO Report at p. 17.

Swiftly filling the three current vacancies in the District of Arizona will help, but please recall that only one of these vacancies existed when Judge Roll reported the crisis in November 2010. Thus, consideration should be given to proposing legislation to create the additional judgeships that the District of Arizona so desperately needs.

2. Other Needed Resources

The Clerk's Office staffing is based in large part on the number of judgeships authorized for a district court. The number of visiting judges assigned to the court will also increase the need for additional Clerk's Office staff, as will the enormous number of border-related cases, and reassignments due to Judge Roll's death. We are working with the Clerk of Court in the District of Arizona to identify its requirements, but note at this time the following units are particularly strained:

(a) Docketing and Calendar Clerks: Tucson's calendar clerk is working overtime to keep up with processing all the motions to continue criminal sentencings and trials. In January, she processed 1,166 continuances (32% more than January 2010). The criminal sentencings, disposition hearings, and trials set for Judge Roll are being rescheduled before visiting judges. The district is currently moving sentencings from the other three active judges to visiting judges. There are over 1,100 proceedings that need to be rescheduled, with noticing given to U.S. Marshals, Probation, and the attorneys. Further, during 2010 alone, the clerk's office processed over 2 million dollars in CJA vouchers related to Operation Streamline.

(b) Interpreters: The seven staff interpreters are in court every day, most of the certified contract interpreters in Tucson are called in most days, and TIP (Telephone Interpreting Program) proceedings take place each day. Any increase in criminal court activity requiring interpreters will strain the system and court could be delayed until interpreters become available. An administrative clerk was recently hired to log letters/documents submitted for translation and assist with the headsets during Operation Streamline proceedings which reduced the staff interpreters' burden.

(c) Probation Office: This office's staffing is based primarily on the number of pre- and post-conviction sentencing reports and the number of post-supervision cases supervised in the community. The crushing criminal workload is taking a severe toll on staff. Although the Administrative Office has provided the Probation Office with supplementary funds, funding remains insufficient to hire enough probation officers to support the work of judicial officers. There are 262 on-board employees, another 16 officers will be hired. The expected staff size of 278 will still be 21 positions fewer than what is needed. The increase in cases also presents a need to increase video teleconferencing capacity with the detention facility where defendants are held.

(d) Pretrial Services: This office's staffing is based primarily on case activations (new investigations) and defendants under supervision. Between fiscal years 2009 and 2010, there was a 40% increase in case actions, growing from 13,145 to 18,424. This is primarily due to the increase in Operation Streamline prosecutions. Additionally, there was a 22% increase in cases received for supervision during that same time period, growing from 908 cases to 1,109. Workload continues to increase and it has been difficult to keep pace with staffing. Although recent hires will help alleviate some of the tremendous workload strain on staff, if workload continues to increase and funding is reduced, this could compromise the quality of investigations and supervision being provided by Pretrial Services.

(e) U.S. Marshals Service: Additional resources will be required to transport pre-trial detainees, and other matters related to judicial and court security.

(f) Magistrate Judges: The District will require either new authorized Magistrate Judge positions or the recall of Magistrate Judges, or likely both.

E. Conclusion

Although the District of Arizona and the Ninth Circuit Judicial Council are exploring every available alternative to alleviate the caseload congestion, the most cost-effective and reasonable long-term solution is the swift enactment of legislation creating additional judgeships for the district, perhaps as a stand-alone bill rather than as part of a larger judgeship bill. In addition, it is hoped that the President and the Senate expedite the nomination and confirmation process for the three existing judicial vacancies in the district and any additional new judgeships created. Finally, budget cuts and/or furloughs should not be considered for the District of Arizona's support staff.

Submitted by the Judicial Council of the Ninth Circuit:

Alex Kozinski, Chief Circuit Judge

Procter Hug, Jr., Circuit Judge

Sidney R. Thomas, Circuit Judge

Raymond C. Fisher, Circuit Judge

Ronald M. Gould, Circuit Judge

Johnnie B. Rawlinson, Circuit Judge

Audrey B. Collins, Chief District Judge

Roger L. Hunt, Chief District Judge

James Ware, Chief District Judge

Stephen M. McNamee, District Judge

Robert H. Whaley, District Judge

Tab A

UNITED STATES DISTRICT COURTDISTRICT OF ARIZONAEvo A. DeConcini U.S. Courthouse405 W. CongressSuite 5190Tucson, Arizona 85701-5053

John M. Roll

Chief United States District Judge

Telephone: (520) 205-4520

Fax: (520) 205-4529

November 24, 2010

Honorable Alex Kozinski

Chief Judge

United States Court of Appeals

Richard H. Chambers Court of

Appeals Building

125 South Grand Avenue, Room 200

Pasadena, CA 91105-1621

Re: Request for Declaration of a Judicial Emergency in the District of Arizona

Dear Chief Judge Kozinski,

On behalf of the United States District Court for the District of Arizona, I respectfully request that the Judicial Council of the Ninth Circuit, pursuant to 18 U.S.C. § 3174, declare that a judicial emergency exists in the District of Arizona.

Pursuant to 18 U.S.C. § 3174(b), such a declaration would potentially enlarge the time to bring felony defendants to trial from the current 70 days after arraignment, to up to 180 days after arraignment.

The District of Arizona's felony caseload is at an all-time high. In two years, the felony case and defendant caseloads in Tucson division have doubled. In the past 12 months, the four active district judges in Tucson division have each averaged 900 felony defendant filings.

In the past two years, the U.S. Attorney's Office in Tucson division has nearly doubled in size. It is hiring additional prosecutors and is seeking impanelment of a third grand jury for Tucson division.

The caseload in Phoenix division is such that the Phoenix judges are forced to utilize out-of-district judges to assist with their crushing civil caseload while also hearing 1/3 of the District's felony caseload,

The district judges in the District of Arizona have conferred on this matter and unanimously support a declaration of judicial emergency.

Weighted and Unweighted Caseloads

The District's weighted caseload in FY-2009 was 609 case filings per active district judge-eighth highest in the nation.

The Magistrate Judges' Division of the Administrative Office of the U.S. Courts recently announced that for the statistical year ending on June 30, 2010, the District of Arizona had a weighted caseload of 653 cases per active district judge-sixth highest in the nation.

The District's unweighted caseload in FY-2009 was 860 cases per active district judge-third highest in the nation. Only the Eastern District of California and the Western District of Texas had higher unweighted caseloads. Arizona's high unweighted caseload was a product of the District's criminal filings, which included 471 criminal case filings and 119 supervised release revocations per district judge.

The District of Arizona ranked first in the Ninth Circuit and third in the nation in criminal case filings in FY-2009.

Felony Filings

In FY-2010, felony case and defendant filings reached an all-time high in the District of Arizona.

The District's felony case filings increased by 21.1% over FY-2009, and felony defendant filings increased by 20.3% over FY-2009, In Tucson division, in FY-2010 the felony case filings increased by 26% and the felony defendant filings increased by 27%; Tucson division had 63% of the District's felony case filings and 64% of the District's felony defendant filings. Phoenix division had just over 1/3 of the District's felony case and defendant filings in FY-2010 and also had 83% of the District's civil filings.

In Tucson division, since FY-2008 the number of felony case filings and felony defendant filings has more than doubled. In the past 12 months, the four active district judges in Tucson division have each been assigned approximately 900 felony defendant cases. In FY-2010, Tucson division had more felony case and felony defendant filings than the entire District in FY-2008. In Tucson division, one of the five district judges recently assumed senior status, further exacerbating the situation.

Felony Case Filings

Felony Defendant Filings

Trial calendar in Tucson division

In CY-2008, 51 jury panels were called for trials to be presided over by district judges in Tucson division; in CY-2009, 49 jury panels were called; and in CY-2010, it is anticipated that 66-67 jury panels will be called (to date in CY-2010, 62 jury panels have been called). Although defendants sometime enter pleas of guilty to all pending charges the day of trial, every time a jury panel reports for a trial, a district judge has scheduled that matter for a firm trial date and has set aside time for a jury trial.

The four active district judges and one senior district judge in Tucson division are presently scheduled to hear 919 trials, including 893 jury trials. It is typical for each of Tucson division's district judges to have at least 30 cases set for jury trial each Tuesday.

Felony Sentencings

In FY-2009, the five active district judges in Tucson division averaged 451 felony defendant sentencings per judge. In FY-2010, the four active district judges and one senior district judge in Tucson division averaged 643 felony sentencings per judge. This sentencing volume was only manageable as a result of the liberal utilization of visiting judges.

Felony Case Sentencings

Felony Defendant Sentencings

Tucson division-Federal Prosecutors Doubled in Two Years and Plans for a Third Grand Jury

The number of Assistant U.S. Attorneys (“AUSAs”) assigned to the criminal division in Tucson has nearly doubled in the past two years. In January 2008, the Tucson Office of the U.S. Attorney had 33 AUSA prosecutors. Today, the Tucson Office has 61 federal prosecutors, it is in the process of hiring five additional prosecutors. Border Patrol has more than 3,000 agents in Tucson sector. Although the commitment of these resources is undoubtedly a product of Border Patrol's apprehension of 212,000 people and seizure of 1.1 million pounds of marijuana in FY-2010 in Tucson sector, judicial resources are not keeping pace with the increases in investigative and prosecutorial resources.

The U.S. Attorney's Office has announced that it wishes to impanel another grand jury in Tucson in addition to the two grand juries currently impaneled.

Utilization of Visiting District Judges in Tucson division-Space Limitations

In order to assist the four active district judges in Tucson division with the increase in felony caseload and to provide relief until Senior District Judge Frank R. Zapata's replacement is confirmed, in CY-2011 Tucson division has scheduled 10 visiting judges from districts outside of the Ninth Circuit, serving 13 tours of one to three weeks in Tucson and assisting exclusively with felony cases. In this regard, the U.S. Judicial Conference's Committee on Intercircuit Assignments, chaired by Judge J. Frederick Motz, has provided the Tucson division with invaluable support, as has the Ninth Circuit.

Space limitations at the Evo A. DeConcini U.S. Courthouse in Tucson pose a significant impediment to the utilization of more than one visiting district judge at a time, and due to smaller magistrate judge courtrooms in Tucson, there is no space available for visiting judges to hear trials. The DeConcini courthouse has seven district court courtrooms, including the William D. Browning Special Proceedings Courtroom. Since January of 2008, the special proceedings courtroom has been exclusively devoted to hearing the 16,000 Operation Streamline misdemeanor and petty cases filed annually in Tucson division. Another district court courtroom is utilized by magistrate judges to conduct initial appearance and arraignment proceedings for the felony defendants; over 100 felony defendants now appear weekly in Tucson division.

Conclusion

The addition of what sometimes seems to be an inexhaustible number of law enforcement agents and federal prosecutors in Tucson division has now produced a tsunami of federal felony cases far beyond the management capacity of the four active district judges in Tucson division. The influx of felony cases also requires physical space in the DeConcini Courthouse exceeding current space availability. Without the possibility of relief from a declaration of judicial emergency, Tucson division is simply unable to absorb the enormous increase in felony cases being scheduled for trial while remaining compliant with the time limits set by the Speedy Trial Act.

Because the District's civil caseload falls disproportionately on Phoenix division and because Phoenix division also hears more than 1/3 of the District's felony cases, district judges in Phoenix division are not in a position to render substantial assistance in Tucson division.

Thank you for your consideration of this urgent request for relief.

Sincerely,

/s/John M. Roll

John M. Roll, Chief

District Court Judge

Tab B

UNITED STATES DISTRICT COURTDistrict of ArizonaRoslyn O. SilverChief United States District Judge

MEMORANDUM

DATE: January 25, 2011

TO: Judicial Council of the Ninth Circuit, Chief Judge Alex Kozinski, Circuit and Court of Appeals Executive Cathy Catterson

FROM: Chief Judge Roslyn O. Silver

RE: Application for Declaration of Judicial Emergency

On January 20, 2011, acting pursuant to 18 U.S.C. § 3174(e), I declared a judicial emergency in the District of Arizona for a period of thirty days. As required by statute, this memorandum is the formal written application for the declaration of a judicial emergency by the Judicial Council of the Ninth Circuit. Included in this application is the November 24, 2010 letter from Chief Judge Roll to Chief Judge Alex Kozinski outlining the statistical justification for declaration of an emergency.

The situation described in Chief Judge Roll's letter became even more dire with the death of Chief Judge Roll. At the time of his death, Chief Judge Roll had approximately 900 criminal cases. After reassignment of these cases, each District Judge in Tucson is now responsible for more than 1200 criminal cases. Chief Judge Roll also had approximately 150 civil cases which will have to be reassigned. Chief Judge Roll's death raised the number of vacant judgeships to three, two in Tucson and one in Phoenix.

The legislative history of the Speedy Trial Act's “judicial emergency” provision makes clear the provision was meant to provide relief in two situations. First, an emergency could be declared when a district did not have “the necessary resources to effectively implement the standards” of the Speedy Trial Act. Second, an emergency could be declared when the “death of one or more district judges” caused “an unmanageable backlog in the criminal docket.” Statement of Representative Cohen, 120 Cong. Rec. 41775 reprinted in A. Partridge, Legislative History of Title I of the Speedy Trial Act of 1974, 270 (Fed. Judicial Center 1980). Both of these situations now exist in the District of Arizona and the declaration of a judicial emergency is appropriate.

Attached: Chief Judge Roll's November 24, 2010 letter.

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONAEvo A. DeConcini U.S. Courthouse405 W. CongressSuite 5190Tucson, Arizona 85701-5053

John M. Roll

Chief United States District Judge

Telephone: (520) 205-4520

Fax: (520) 205-4529

November 24, 2010

Honorable Alex Kozinski

Chief Judge

United States Court of Appeals

Richard H. Chambers Court of

Appeals Building

125 South Grand Avenue, Room 200

Pasadena, CA 91105-1621

Re: Request for Declaration of a Judicial Emergency in the District of Arizona

Dear Chief Judge Kozinski,

On behalf of the United States District Court for the District of Arizona, I respectfully request that the Judicial Council of the Ninth Circuit, pursuant to 18 U.S.C. § 3174, declare that a judicial emergency exists in the District of Arizona.

Pursuant to 18 U.S.C. § 3174(b), such a declaration would potentially enlarge the time to bring felony defendants to trial from the current 70 days after arraignment, to up to 180 days after arraignment.

The District of Arizona's felony caseload is at an all-time high. In two years, the felony case and defendant caseloads in Tucson division have doubled. In the past 12 months, the four active district judges in Tucson division have each averaged 900 felony defendant filings.

In the past two years, the U.S. Attorney's Office in Tucson division has nearly doubled in size. It is hiring additional prosecutors and is seeking impanelment of a third grand jury for Tucson division.

The caseload in Phoenix division is such that the Phoenix judges are forced to utilize out-of-district judges to assist with their crushing civil caseload while also hearing 1/3 of the District's felony caseload.

The district judges in the District of Arizona have conferred on this matter and unanimously support a declaration of judicial emergency.

Weighted and Unweighted Caseloads

The District's weighted caseload in FY-2009 was 609 case filings per active district judge-eighth highest in the nation.

The Magistrate Judges' Division of the Administrative Office of the U.S. Courts recently announced that for the statistical year ending on June 30, 2010, the District of Arizona had a weighted caseload of 653 cases per active district judge-sixth highest in the nation.

The District's unweighted caseload in FY-2009 was 860 cases per active district judge-third highest in the nation. Only the Eastern District of California and the Western District of Texas had higher unweighted caseloads. Arizona's high unweighted caseload was a product of the District's criminal filings, which included 471 criminal case filings and 119 supervised release revocations per district judge.

The District of Arizona ranked first in the Ninth Circuit and third in the nation in criminal case filings in FY-2009.

Felony Filings

In FY-2010, felony case and defendant filings reached an all-time high in the District of Arizona.

The District's felony case filings increased by 21.1% over FY-2009, and felony defendant filings increased by 20.3% over FY-2009. In Tucson division, in FY-2010 the felony case filings increased by 26% and the felony defendant filings increased by 27%; Tucson division had 63% of the District's felony case filings and 64% of the District's felony defendant filings. Phoenix division had just over 1/3 of the District's felony case and defendant filings in FY-2010 and also had 83% of the District's civil filings.

In Tucson division, since FY-2008 the number of felony case filings and felony defendant filings has more than doubled. In the past 12 months, the four active district judges in Tucson division have each been assigned approximately 900 felony defendant cases. In FY-2010, Tucson division had more felony case and felony defendant filings than the entire District in FY-2008. In Tucson division, one of the five district judges recently assumed senior status, further exacerbating the situation.

Felony Case Filings

Felony Defendant Filings

Trial calendar in Tucson division

In CY-2008, 51 jury panels were called for trials to be presided over by district judges in Tucson division; in CY-2009, 49 jury panels were called; and in CY-2010, it is anticipated that 66-67 jury panels will be called (to date in CY-2010, 62 jury panels have been called). Although defendants sometime enter pleas of guilty to all pending charges the day of trial, every time a jury panel reports for a trial, a district judge has scheduled that matter for a firm trial date and has set aside time for a jury trial,

The four active district judges and one senior district judge in Tucson division are presently scheduled to hear 919 trials, including 893 jury trials. It is typical for each of Tucson division's district judges to have at least 30 cases set for jury trial each Tuesday.

Felony Sentencings

In FY-2009, the five active district judges in Tucson division averaged 451 felony defendant sentencings per judge. In FY-2010, the four active district judges and one senior district judge in Tucson division averaged 643 felony sentencings per judge. This sentencing volume was only manageable as a result of the liberal utilization of visiting judges.

Felony Case Sentencings

Felony Defendant Sentencings

Tucson division-Federal Prosecutors Doubled in Two Years and Plans for a Third Grand Jury

The number of Assistant U.S. Attorneys (“AUSAs”) assigned to the criminal division in Tucson has nearly doubled in the past two years. In January 2008, the Tucson Office of the U.S. Attorney had 33 AUSA prosecutors. Today, the Tucson Office has 61 federal prosecutors. It is in the process of hiring five additional prosecutors. Border Patrol has more than 3,000 agents in Tucson sector. Although the commitment of these resources is undoubtedly a product of Border Patrol's apprehension of 212,000 people and seizure of 1.1 million pounds of marijuana in FY-2010 in Tucson sector, judicial resources are not keeping pace with the increases in investigative and prosecutorial resources.

The U.S. Attorney's Office has announced that it wishes to impanel another grand jury in Tucson in addition to the two grand juries currently impaneled.

Utilization of Visiting District Judges in Tucson division-Space Limitations

In order to assist the four active district judges in Tucson division with the increase in felony caseload and to provide relief until Senior District Judge Frank R. Zapata's replacement is confirmed, in CY-2011 Tucson division has scheduled 10 visiting judges from districts outside of the Ninth Circuit, serving 13 tours of one to three weeks in Tucson and assisting exclusively with felony cases. In this regard, the U.S. Judicial Conference's Committee on Intercircuit Assignments, chaired by Judge J. Frederick Motz, has provided the Tucson division with invaluable support, as has the Ninth Circuit.

Space limitations at the Evo A. DeConcini U.S. Courthouse in Tucson pose a significant impediment to the utilization of more than one visiting district judge at a time, and due to smaller magistrate judge courtrooms in Tucson, there is no space available for visiting judges to hear trials. The DeConcini courthouse has seven district court courtrooms, including the William D. Browning Special Proceedings Courtroom. Since January of 2008, the special proceedings courtroom has been exclusively devoted to hearing the 16,000 Operation Streamline misdemeanor and petty cases filed annually in Tucson division. Another district court courtroom is utilized by magistrate judges to conduct initial appearance and arraignment proceedings for the felony defendants; over 100 felony defendants now appear weekly in Tucson division.

Conclusion

The addition of what sometimes seems to be an inexhaustible number of law enforcement agents and federal prosecutors in Tucson division has now produced a tsunami of federal felony cases far beyond the management capacity of the four active district judges in Tucson division. The influx of felony cases also requires physical space in the DeConcini Courthouse exceeding current space availability. Without the possibility of relief from a declaration of judicial emergency, Tucson division is simply unable to absorb the enormous increase in felony cases being scheduled for trial while remaining compliant with the time limits set by the Speedy Trial Act.

Because the District's civil caseload falls disproportionately on Phoenix division and because Phoenix division also hears more than 1/3 of the District's felony cases, district judges in Phoenix division are not in a position to render substantial assistance in Tucson division.

Thank you for your consideration of this urgent request for relief.

Sincerely,

/s/John M. Roll

John M. Roll, Chief

District Court Judge

Tab C

X FILED _ LODGED

_ RECEIVED _ COPY

FEB 1, 2011

CLERK U.S. DISTRICT COURT

DISTRICT OF ARIZONA

BY /s/ M. Everette DEPUTY

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

DECLARATION OF JUDICIAL EMERGENCY UNDER THE SPEEDY TRIAL ACT

(SUPERSEDES GENERAL ORDER 11-01 TO CORRECT CLERICAL ERROR)

GENERAL ORDER NO. 11-02

This written order memorializes the oral order issued on January 20, 2011. Chief Judge Silver of the District of Arizona hereby declares a judicial emergency pursuant to 18 U.S.C. § 3174(e), and suspends, for 30 days, the time limits set forth in 18 U.S.C. § 3161(c) of the Speedy Trial Act. The suspension commenced January 20, 2011 and will terminate on February 19, 2011, and applies to cases in which the indictment or information is filed during this time period. During the suspension, the time limit from indictment to trial may not exceed 180 days. 18 U.S.C. § 3174(b). The suspension does not affect the 30-day time limit from arrest to indictment, nor does it affect the time limits for defendants in custody solely because they are awaiting trial. Id.

The need to suspend the time limits is of great urgency due to a heavy criminal caseload, a lack of adequate resources, and the tragic death of Chief Judge John Roll on January 8, 2011. The District of Arizona ranks first in the Ninth Circuit and third in the nation for criminal case and defendant filings, an increase of 65% since 2008. During this same time period, the Tucson criminal division of the United States Attorney's Office for the District of Arizona has doubled in size, adding AUSAs to prosecute border crimes. There has been no corresponding increase in judgeships or other judicial resources.

Presently, there are only three active district judges in Tucson, each assigned 1200 criminal cases that require holding a large number of trials each month. Further, there are two district court vacancies in Tucson, and one in Phoenix.

In creating the emergency provision of the Speedy Trial Act, Congress recognized district courts may be unable “to effectively implement the standards of [the Speedy Trial Act]” due to limited manpower or resources. See 120 Cong. Record 41773, 41775 (1974). The death of a judge may also constitute an emergency. Id. As a result, the District of Arizona will operate under the emergency procedures of 18 U.S.C. § 3174(e) for 30 days, and has applied to the Ninth Circuit Judicial Council to extend the suspension for one year.

IT IS SO ORDERED.

DATED this 1st day of February, 2011.

/s/Roslyn O. Silver

Roslyn O. Silver

Chief United States District Judge

TAB D

Report on the Impact on the Judiciary of Law Enforcement Activities Along the Southwest Border

Prepared for the U.S. House of Representatives and Senate Committees on Appropriations

Administrative Office of the United States CourtsJames C. Duff, DirectorJuly 2008Report on the Impact on the Judiciary of Law Enforcement Activities Along the Southwest BorderIntroduction

The federal government's crackdown on illegal immigration, particularly along the nearly 2,000-mile-long border between the United States and Mexico, has resulted in a significant increase in the workload of the five judicial districts immediately adjacent to the border-the District of Arizona, the District of New Mexico, the Southern District of California, and the Southern and Western Districts of Texas.

The Administrative Office of the United States Courts has been asked to report on the impact of law enforcement activities on the workloads of the federal courts along the border. This report responds to the request by:

• explaining the distinct, but interdependent roles of the Executive Branch and the Judiciary;

• reporting on the effect that the Executive Branch's prosecution policies and practices have on the work of the federal courts and on the resources of the Judiciary;

• describing recent law enforcement initiatives along the Southwest border, such as Operation Streamline II;

• documenting the impact that those increased law enforcement activities are having on the workload of the courts;

• providing relevant caseload statistics; and

• describing the resources available to the courts and the actions the Judiciary is taking to meet the workload increases.

Appendix 1 describes current conditions in each of the five border districts and details the caseload of each court, the resources available to law enforcement agencies, the status of recent law enforcement initiatives and their impact on the courts, the availability of detention cells and court facilities, and the resource needs of judges, court support staff, and defense counsel.

Appendix 2 provides an overview of the federal criminal justice process and describes the court procedures required by the U.S. Constitution, federal statutes, and federal rules.

Appendix 3 contains caseload statistics showing the workload of the border courts.

Judicial Districts Along the Southwest Border

Border Patrol Sectors Along the Southwest Border

THE IMPACT ON THE JUDICIARY OF LAW ENFORCEMENT ACTIVITIES ALONG THE SOUTHWEST BORDER

Part A-The Workload1. The Respective Roles of the Executive and Judicial Branches

The Executive Branch, primarily through the Department of Justice, is responsible for investigating and prosecuting violations of federal criminal laws. United States attorneys serve as the government's prosecutors in each of the 94 judicial districts and are assisted by many law enforcement agencies. Some are part of the Department, such as the Federal Bureau of Investigation, the Drug Enforcement Administration, the Marshals Service, and the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Others are part of the Department of Homeland Security, such as the Border Patrol and Immigration and Customs Enforcement, or other Executive Branch departments. The Department of Justice also operates the federal corrections system, through the Federal Bureau of Prisons.

The Judicial Branch has different responsibilities. The role of the federal courts is to resolve factual and legal disputes according to the Constitution and laws of the United States. In criminal cases, they decide the facts of each case brought before them by the Executive Branch, apply the Constitution and laws to resolve legal questions, determine whether the defendants are guilty of the charges brought against them by the Executive Branch, and impose appropriate judgments and sentences.

Federal judges are assisted closely in this Constitutional mission by supporting staff, including those in clerks' offices, pretrial services offices, and probation offices. In addition, the Judiciary funds the federal defender services system, which provides representation to defendants charged with criminal offenses who cannot afford their own lawyer.

2. Executive Branch Policies and Resources Affect the Judiciary

The federal courts have very limited control over the nature and the volume of their caseloads. Essentially, they provide the judicial forum for the government and private parties to resolve their cases. As a practical matter, the caseloads of the courts are determined by-

• the Legislative Branch, through substantive statutes and appropriations,

• the Executive Branch, through its prosecution initiatives and deployment of law enforcement resources, and

• private parties, through their decisions to litigate in the federal courts.

In criminal cases, prosecutors have the discretion to make charging decisions-whether to prosecute a defendant at all and what specific charges to bring. The prosecution decisions of the Department of Justice and each individual U.S. attorney are made independently from the federal courts and without input or supervision by judges.

Prosecution policies vary greatly from district to district and from administration to administration. Historically, the great majority of persons entering the country illegally, particularly those coming only to seek employment, have not been charged criminally. Rather, in the past when intercepted by law enforcement agents, they have been released or returned to their own country. If the government does bring criminal charges, however, it is within the U.S. attorney's discretion to charge a particular offense as a felony or a Class B misdemeanor (a lesser charge that carries a maximum penalty of six months' imprisonment).

These prosecutorial decisions-whether to file charges at all and whether to file them as felonies or misdemeanor offenses-have a major impact on the work of the federal courts and the deployment of judicial resources. When the Department of Justice files a criminal case, it gives rise to a series of court proceedings and events in the courts that require both the attention of judicial personnel-judges, district clerk's office personnel, pretrial services and probation officers, court reporters, court interpreters, and federal defenders-and the expenditure of funds appropriated by Congress to the Judiciary.

Each court proceeding and action must be supported, recorded, and documented by court staff. A court interpreter must be provided if the defendant does not understand or speak English. The defendant has the right to be represented by an attorney at each stage of a criminal case-most often at court expense under the Criminal Justice Act. After conviction, moreover, an appeal may be filed with the court of appeals, and after incarceration, the defendant is likely to file a federal habeas corpus proceeding attacking the conviction and sentence.

Appendix 1 to this report, at pages 19 to 37, describes the prosecution initiatives, criminal caseloads, and available resources in each of the five border districts.

Historically, increases in appropriations for additional U.S. attorney positions and law enforcement agents have resulted in the Department of Justice filing more criminal cases and increasing the demand on court resources. Likewise, changes in national or local prosecution policies that enhance law enforcement activity clearly and immediately impact court caseloads and resources.

3. The constitution and the Rule of Law

The rule of law lies at the very heart of our American democracy. Protected by the federal courts, it is derived from the U.S. Constitution, statutes enacted by Congress, the federal rules of procedure, decisional law, and common-law tradition. The Constitution explicitly guarantees important fundamental rights to persons accused of criminal offenses, including the rights to-

• due process of law,

• have a grand jury review the government's charges,

• be represented by a lawyer,

• be tried in the district where the alleged crime has been committed,

• a speedy and public trial,

• trial before a jury,

• confront adverse witnesses, and

• be protected against

• unreasonable searches and seizures,

• excessive bail,

• self-incrimination, and

• being tried for the same crime more than once.

Several federal statutes implement these constitutional rights and impose specific requirements that must be applied by the federal courts-such as the Bail Reform Act, the Criminal Justice Act, the Speedy Trial Act, and the Court Interpreter Act. Thus, the Constitution and federal statutes impose limits on the extent to which the federal courts may streamline criminal proceedings, even those involving less serious offenses, in order to accommodate a surge in prosecutions.

The specific proceedings and events that the federal district courts are required to conduct in criminal cases are described in Appendix 2 to this report at pages 39 to 44. They include the following-

• applications for arrest warrants and search warrants

• initial appearances and detention hearings

• appointments of counsel

• material witness proceedings

• preliminary hearings

• mental competency hearings

• grand jury proceedings and return of indictments

• arraignments and pleas

• property forfeiture proceedings

• pretrial motions, hearings, and conferences

• trials and verdicts

• post-trial motions

• probation and supervised release revocation hearings

Appendix 2, at pages 45 to 48, also details the work performed by clerks' offices, probation and pretrial services offices, and defense counsel in support of these judicial functions.

4. Criminal Caseloads of the Courts

Criminal caseloads in the five judicial districts along the Southwest Border-the District of Arizona, the Southern District of California, the District of New Mexico, and the Southern and Western Districts of Texas-and the nation as a whole have increased substantially since the mid-1990's. In the border courts, filings increased by 172%-from 9,112 defendants in 1994 to 24,821 in 2007. In the nation, they increased from 62,956 to 89,306 over the same period.

Defendants Charged in the District Courts

Following explosive growth in the 1990's, criminal case filings stabilized over the last few years, but they are now growing again because of current law enforcement initiatives by the Executive Branch. Detailed caseload statistics, tables, and graphs are set forth in Appendix 3 to this report, at pages 49 to 56.

Two categories of crimes dominate the caseload along the Southwest border-drugs and immigration. Together, they accounted for more than 82% of the offenses charged (other than misdemeanor offenses) in 2007, compared to about 43% of the caseload in the non-border districts. Drug cases are a major component of the criminal caseload of each of the border courts. Virtually all drug cases are charged as serious felonies that entail long jail terms. They involve the manufacture, import, sale, distribution, or possession of various illegal substances. Many cases, moreover, involve drug rings and smuggling enterprises. Drug conspiracy cases, especially, are among the most complex and difficult cases in the criminal justice system, absorbing a great deal of judicial time, pretrial services and probation effort, clerk's office staff support, and defender resources.

Felony drug prosecutions rose sharply in the 1990s, both nationally and in the border courts, but have declined slightly in the last two years. There are sizeable fluctuations among districts based on the charging policies, priorities, and resources of individual U.S. attorneys. Filings have decreased in three of the five border courts, but increased in the other two. The following table sets forth the number of defendants charged with drug offenses in 1994 and in the last five years.

Defendants Charged With Drug Offenses

5. Recent Law Enforcement Initiatives

All five district courts along the Southwest border are currently experiencing the impact of stepped-up enforcement of the immigration laws by the Executive Branch. They attribute the increase to several factors-

• additional staff provided to law enforcement agencies and U.S. attorneys,

• greater coordination among the various agencies,

• greater national priority being given to border enforcement,

• a turnover in some U.S. attorney positions, and

• more aggressive prosecution practices by the Department of Justice and the individual U.S. attorneys.

The impact that recent increases in law enforcement activities, especially Operation Streamline II, have had in each of the five border courts is documented in Appendix 1 to this report, at pages 19 to 37. The appendix details the caseload of each court, the resources available to law enforcement agencies, the current status of Operation Streamline II and other prosecution initiatives, the availability of adequate detention facilities and courthouse space, and the specific impact of the prosecution initiatives on court support staff and defender services in each district.

Operation Streamline II was launched in December 2005 in the Del Rio sector of the border in the Western District of Texas. It was intended to deter the illegal entry of people, weapons, and drugs into the country by vastly increasing the prosecution of persons entering the country without authorization. In the past, most people entering illegally had simply been released or returned back to their home country without criminal charges being filed.

Operation Streamline II contemplates a “zero tolerance” policy. The government attempts to file criminal charges against virtually all persons apprehended for entering the country without authorization. The U.S. attorneys charge most with Class B misdemeanor offenses under 8 U.S.C. § 1325-simple illegal entry into the country-rather than with felonies. By charging most illegal-entry cases as misdemeanor offenses, the full panoply of criminal procedures and hearings detailed in Appendix 2 of this report may be substantially shortened and simplified. There is, for example, no requirement for indictment by a grand jury and no right to trial by a district judge. In addition, most defendants plead guilty because the government is able to meet its burden of proof that they entered the United States illegally.

The illegal-entry misdemeanor offense cases are prosecuted by Border Patrol attorneys serving as special assistant U.S. attorneys, rather than by regular assistant U.S. attorneys. The government asks the court to impose a jail term on each defendant, and simultaneously it initiates deportation proceedings. In addition, as part of the law enforcement triage process following apprehension, government officers discover that more serious violations have been committed by some of the persons arrested, and the U.S. attorney's office charges them with more serious felony immigration, drugs, and weapons crimes.

The misdemeanors are disposed of by magistrate judges, who in appropriate circumstances may combine the initial appearance, arraignment, plea acceptance, and sentencing into a single proceeding. In addition, several defendants' cases may be heard at the same time. The judge, however, must ensure that due process is observed, that each defendant is treated with dignity, that each receives advice of competent counsel, that each understands the nature of the proceedings against them, and that each individual's guilty plea is made knowingly and voluntarily. Any defendant who wishes to litigate a defense or assert a right is removed from the expedited process and prosecuted on the regular prosecution track.

The purpose of Operation Streamline II is deterrence-to send a strong message to future potential illegal entrants that they face the near certainty of a federal prosecution, followed by a jail term and formal deportation. The government claims that the program has achieved positive results, including a substantial reduction in the number of illegal border crossings and apprehensions in the sectors where it has initially been deployed. During the first six months of Operation Streamline II, apprehensions of illegal immigrants decreased by 51% in Eagle Pass and by 32% in Del Rio over the same six-month period in the preceding year. At the same time, apprehensions of drug smugglers increased substantially because Border Patrol agents were no longer tied up in apprehending and processing illegal immigrants. The value of narcotics seized during the same period increased by 309% to $13 million in Eagle Pass and by 176% to almost $40 million in Del Rio. Accordingly, the program was expanded to other locations and recently has been introduced in Tucson, Arizona, the busiest sector along the entire border.

Simply put, changes in prosecution policies that lead the government to file more criminal cases have an immediate impact on the workloads and resources of the district courts in which the charges are filed. The surge in new immigration cases brought by the Department of Justice under Operation Streamline II is increasing the caseload of the federal judges along the border-especially the magistrate judges-and the need for additional district court staff, official court interpreters, defense lawyers, and courtroom space. (The impact on the courts, of course, is in addition to the demands placed on the Executive Branch for assistant U.S. attorneys, marshals, law enforcement agents, supporting staff, transportation, and detention space.)

6. Additional Law Enforcement Resources in the Executive Branch

The Executive Branch has focused heavily on enhanced law enforcement along the Southwest border since at least the early 1990s. Operation Gatekeeper and Operation Hold the Line were initiated in 1994, and the Illegal Immigration Reform and Immigrant Responsibility Act was enacted in 1996. Since that time additional law enforcement resources have been directed to the border to reduce the flow of illegal immigrants.

The number of Border Patrol agents along the Southwest border has increased steadily since the 1990s and doubled since 2001. There are currently 16,176 agents on board nationally, of whom 14,384 are stationed along the Southwest border. The number will be increased by 3,000 agents in Fiscal Year 2008, and an additional 2,000 have been requested for Fiscal Year 2009-bringing the total number of Border Patrol agents to 20,000.

There is a strong mathematical relationship between increases in Border Patrol personnel and growth in illegal immigration filings in the border district courts. The details of the mathematical correlation are complex, because Border Patrol apprehensions alone do not automatically result in court filings. Nevertheless, until 2001 approximately one additional felony case was filed in the district court for each Border Patrol agent hired. Beginning in 2002, however, significantly more criminal felony cases have been filed for each additional agent hired.

During the fiscal year 2007, it is reported that vacancies in assistant U.S. attorney positions grew to 1,000, compared to a normal vacancy rate of about 200. The vacancies appear to have been an important factor in the leveling off of felony prosecutions in the last two years. But these assistant U.S. attorney positions are now being filled and new positions added. An additional $100 million was appropriated to the Department of Justice in the Consolidated Appropriations Act of 2008, including $7 million to hire an additional 64 assistant U.S. attorneys and 35 support staff in the border districts. For fiscal year 2009, the Department requested $100 million in new funding for the Administration's Southwest Border Enforcement Initiative, including an additional $8.4 million to hire another 50 attorneys along the border. By filling existing vacancies and hiring new attorneys, the Department of Justice will be in a strong position to file more criminal cases.

Operation Streamline II is made possible in large measure because the Department of Justice relies on Border Patrol attorneys to prosecute misdemeanor immigration cases in the capacity of special assistant U.S. attorneys. In addition, 100 more deputy marshals have been funded in the current budget for the Marshals Service, and an additional 52 positions are included in the FY 2009 budget submitted to Congress. The total, though, is 200 fewer additional deputies that the Marshals Service wanted for enforcement in 2006.

The Marshals Service reports that it is experiencing serious problems along the Southwest border. Since 1994, the prisoner population has increased by 428% in the five border districts, compared to an increase of 132% in all other districts. Managing the rapidly increasing prisoner and detainee population has been challenging for the Marshal Service's limited personnel charged with the protection, security and transportation of both judicial personnel and federal detainees in the border region. It reports that it needs to improve infrastructure for prisoner handling and staff growth, and it must enhance its information technology, communications, and software. In addition, the marshal's office in each district is struggling to provide prisoner housing for defendants. Their primary problem may be in obtaining sufficient funding to provide the bed space for the growing prisoner population. The five districts on the border house 34% of the Marshals Service's entire prisoner population and consume 38% of its housing costs.

7. Fluctuating Caseloads

One of the most difficult aspects that the federal courts face in planning is that criminal caseloads fluctuate because of changes in Executive Branch officials, policies, practices, and resources. Over the past few decades, national law enforcement and prosecution priorities have changed several times due to changes in national administrations, evolving political realities, and budget allocations. Every administration wants to fight crime and protect the public, but the emphasis on what crimes to concentrate on changes over time. The national focus, for example, has shifted at various times from fighting white collar crime to waging a war on drugs, from combating organized crime to preventing terrorism, and most recently to stemming the flow of illegal immigration.

The resources that the Executive Branch has devoted to law enforcement, and the appropriations that Congress has provided to fund law enforcement, directly impact the workload of individual federal courts and the Judiciary as a whole. Hiring more law enforcement agents and more prosecutors, filling vacant positions, and replacing U.S. attorneys historically have increased the volume of criminal cases filed in the courts. As noted above, the focus over the last two decades on addressing crime along the borders has resulted in a 172% increase in the number of felony criminal prosecutions filed in the five Southwest border districts between 1994 and 2007-from 9,122 defendants to 24,831. Now, with Operation Streamline II, the volume of misdemeanor immigration cases is also increasing at border locations where it has been fully implemented.

8. The Impact of Illegal Immigration on Non-Border Federal Courts

Although the greatest impact of increased law enforcement activity affects the five judicial districts along the Southwest border, the steady flow of illegal immigrants, drugs, and weapons into the country impacts virtually every federal district court. As a practical matter, many people who cross the border illegally move on to other parts of the country. Although most enter the country only to seek employment or join relatives, some will commit crimes while in the United States.

Crimes committed by illegal aliens impact all the district courts, not just those along the border. During the 2007 statistical reporting year, 34% of the defendants charged with criminal offenses in the entire federal court system were illegal aliens. Although the majority of the cases involving illegal aliens were filed in the five border courts, 16% of the defendants prosecuted in all the other federal districts were illegal aliens.

Many districts throughout the country have been affected by enhanced immigration enforcement, and the number of illegal aliens prosecuted for federal crimes has increased sharply. Illegal aliens accounted for more than 40% of the federal defendants in Oregon in 2007 and for more than 25% of the defendants in such districts as Idaho, the Western District of Washington, the Central District of California, Colorado, the Western District of Arkansas, the Middle District of North Carolina, Nebraska, the Northern and Southern Districts of Iowa, and the Northern District of Texas. Among other things, the prosecution of aliens in several different parts of the country has required courts to find more Spanish language interpreters in areas where they are not readily available. The Judiciary is looking beyond the traditional methods it has used to address these kinds of issues.

Part B-The Resources

The Judiciary is responding broadly to the increased caseload of the courts caused by changes in prosecution policies of the Department of Justice, including Operation Streamline II, and the deployment of sizeable additional law enforcement resources along the border. Additional resources are being provided to the courts to assure that they are able to handle the increased caseloads promptly and effectively.

Individual courts-and the Judiciary as a whole-can deal effectively with caseload surges in the short term by redeploying existing judges and district court staff on a temporary basis or borrowing judges from other districts. A surge in a court's criminal caseload, however, will often result in a backlog of civil cases because, under the Speedy Trial Act, incoming criminal cases must be given priority over civil cases.

If a court's criminal caseload increase continues, it must consider more permanent solutions, such as requesting additional judgeships, clerk's office staff, court reporters and interpreters, probation and pretrial services officers, and adequate space and facilities to accommodate the new positions. These measures must be taken with caution, though, because the increased caseload may not be sustained in the future. A new national administration may not support the initiatives of its predecessor, and its political and law enforcement priorities may change direction.

9. Adequate Holding Facilities for Prisoners

One of the largest obstacles to prosecuting more immigration cases along the Southwest border is the lack of adequate detention facilities to house persons arrested and awaiting court proceedings. The situation in each of the border courts is detailed in Appendix 1. The recent increases in prosecutions under Operation Streamline II and other, related initiatives have placed substantial strain on existing holding facilities for in-custody defendants. The number of defendants who can be brought before the courts is limited at various locations. In fact, the lack of adequate detention facilities at certain border locations is an impediment to full implementation of Operation Streamline II.

Providing detention facilities is an Executive Branch function. The Department of Justice is responsible for securing places to house detainees-either in federal facilities or through contracts with state and local jails-and for transporting prisoners between the off-site facilities and federal courthouses. Unless the Executive Branch is able to provide the appropriate level of facilities and other resources, the courts cannot handle the volume of cases that the Executive Branch and Congress would like to have prosecuted.

10. Suitable Courtrooms and Other Infrastructure

In addition to a shortage of off-site detention facilities, there are not enough courthouse holding cells, courtrooms, and related court facilities along the border to handle all the defendants who might be prosecuted under Operation Streamline II. The lack of space imposes a practical limit on the number of cases that can be processed at any given location.

New courthouses are under construction in El Paso and Las Cruces. The foundation has been dug for a new courthouse in San Diego, California, but all the needed funds have not been provided for construction of the building itself, and it will be several years before it can open. A new courthouse is also needed at Yuma. The Judiciary is prepared to proceed with the project, but the Marshals Service has not been able to provide the funding for holding cells and security requirements, which is causing delay. In Tucson, the federal courthouse opened in 2000, but is inadequate already, as criminal case filings have increased well beyond the volume projected when the building was designed. At the other border locations, court space and detention facilities are limited. More details for each district are set forth in Appendix 1.

Measures are being explored to provide additional court facilities until new buildings can come on line. Any temporary courtrooms, however, must have sufficient capacity to handle the volume of defendants, have sufficient security in place, and be capable of supporting the courts' information technology infrastructure. Adequate space is also required for district court support staff and for public defenders and private attorneys to interview their clients.

Active consideration has been given-as a temporary, emergency measure-to using facilities on military bases or other federal installations if they can meet basic courtroom standards. In addition, cases and prisoners might be transferred to other locations within a district and reassigned to judges who have courtrooms available. Other possible solutions to the space problems might involve locating available courtrooms in state court buildings or even building temporary facilities.

11. District Judges

The number of district judgeships is established by statute. Historically, however, it has been difficult to secure new judgeship legislation. The last national omnibus judgeship legislation was enacted in 1990, although 16 district judgeships were authorized in special legislation for the border courts between 1999 and 2002-one for the Southern District of Texas, three for the Western District of Texas, five for the District of Arizona (including one temporary judgeship), five for the Southern District of California, and two for the District of New Mexico (including one temporary judgeship).

The Judicial Conference conducts a national survey of judgeship needs every two years and submits proposed legislation to Congress. The last survey was submitted to Congress in March 2007, and legislation to enact its recommendations was approved by the Senate Judiciary Committee on May 15, 2008-S. 2774. The following table shows the number of district judgeships currently authorized for the five border courts, together with the additional judgeships contained in S. 2774 and the courts' initial requests in the 2009 survey, which is now underway.

Additional district judgeships, however, cannot provide immediate caseload relief. Inevitably, it takes considerable time for Congress to enact judgeship legislation, for the President to nominate the new judges, and for the Senate to confirm them.

In the short-term, however, the Judiciary can make additional district judges available through intra-circuit and inter-circuit assignments of judges from other courts. In the case of intra-circuit assignments, the chief judge of a circuit may assign temporarily any judge within the circuit to hold court in another district. As for assignments across circuit lines, the Chief Justice may designate judges from other circuits to assist with the caseload. The Intercircuit Assignments Committee of the Judicial Conference and the Administrative Office assist the Chief Justice in identifying needs for visiting judges, securing the services of judges from other courts, and completing the necessary orders and paperwork. Over the last several years, the border courts have received assistance from 30 visiting judges in 2005, 30 visiting judges in 2006, and 21 visiting judges in 2007.

12. Magistrate Judges

Magistrate judge positions are established by the Judicial Conference, based on a detailed Administrative Office survey of local conditions and workload and the recommendations of the respective circuit judicial councils. The number of full-time magistrate judge positions authorized for the five border courts is as follows:

Seventeen of the 59 magistrate judge positions listed above were authorized by the Judicial Conference between 1997 and 2007, largely to handle the increased criminal caseload along the border-one for the Southern District of Texas, four for the Western District of Texas, four for the District of New Mexico, five for the District of Arizona, and three for the Southern District of California. (In addition, part-time magistrate judges are located at Roswell and Gallup, New Mexico.)

It appears that Operation Streamline II will require the Judiciary to authorize additional magistrate judge positions along the border. A request for additional positions for Arizona has been approved by the Executive Committee on behalf of the Judicial Conference on an expedited basis using the emergency funding appropriated for workload associated with increased immigration enforcement. Additional requests are being considered for the Southern and Western Districts of Texas. Even if additional positions are authorized and funded, however, it will take the district courts several months to complete the appointment process, which includes public notice of the vacancies, a citizen selection panel to screen applicants and recommend candidates to the district court, a selection by the court, and a background investigation.

In the interim, the Judiciary may recall retired magistrate judges to active service and obtain the services of magistrate judges from other districts on a temporary basis to assist the border districts. The Administrative Office maintains a roster of judges willing and able to perform temporary duties elsewhere and will work with the affected courts to provide any assistance they request.

13. Support Staff

The Administrative Office allocates district court staff and other resources to the individual courts based on: (1) national workload formulas; and (2) the level of appropriations provided by Congress. Allocations are given to district court support offices at the start of each fiscal year and are calculated by applying the national workload formulas to the latest caseload statistics for each district. Supplemental funding may be allocated to a court for additional positions if a caseload surge occurs in the middle of a year.

Congress provided additional funding to the Judiciary in Fiscal Years 2007 and 2008 to address workload associated with increased immigration law enforcement. Because the appropriations were provided later in the fiscal year and it takes time to bring new staff on board, the funds were planned to be expended over a two-year period.

Court support positions have generally been sufficient in the border courts until recently. But the clerks' offices in each district report that their work has been impacted heavily by recent increases in criminal case filings, which they attribute to more aggressive prosecution policies, a turnover in some U.S. attorney positions, an increase in law enforcement agents along the border, the filling of vacant assistant U.S. attorney positions, and the widespread use of Homeland Security Department attorneys to prosecute misdemeanor cases as special assistant U.S. attorneys. All five border districts predict that the enhanced law enforcement efforts will continue and that criminal caseloads will continue to rise, especially misdemeanor cases.

The clerks' offices state that they will need additional support staff to process the higher volume of cases now being brought by the U.S. attorneys. In addition, they express concerns that the current national workload formula used to allocate staff to the district court clerks' offices does not give adequate credit for handling misdemeanor cases. The Administrative Office is aware of this issue and will work to address it in the revised staffing formula scheduled to be implemented in Fiscal Year 2010.

Likewise, the pretrial services and probation offices will need additional staff as their caseloads increase. Operation Streamline II itself has had little impact on the work of probation and pretrial services offices to date because most of the surge in prosecutions has involved misdemeanor offenses, which do not impact these offices heavily. But persons convicted of illegal-entry misdemeanor offenses who return later to the United States are then charged with felony re-entry. Thus, Operation Streamline II may have unmeasured future consequences. In addition, enhanced enforcement of the immigration laws is generating additional felony cases and leading to immediate additional work for the probation and pretrial services offices.

The pretrial services and probation offices are concerned about how long the stepped-up enforcement will continue. They fear having to recruit and hire additional qualified officers only to discover later that enforcement of the immigration laws is a lower priority for the next national administration. They would like some assurance that funding will be available to ensure that officers recruited and hired one year will not have to be laid off in the next year for lack of appropriated funds. There is, moreover, a substantial time lag between the time a workload increase is felt in a district and the time that additional resources are provided under the normal appropriations and allocation processes.

Thanks to help from Congress in the past two years, the Judiciary is in a financial position to respond promptly to additional resource needs that the courts can justify. But even if funding is allocated for additional staff, the courts may not be able to fill the positions quickly with qualified and capable candidates. Many positions require special skills and training-especially probation and pretrial services officers, information technology staff, official court reporters, and official staff interpreters. The local labor pool is not sufficient at each location along the border to meet the demand, and it is difficult to persuade candidates from other parts of the country or state to relocate to a border location.

Recruitment and retention problems are further exacerbated because many employees at border locations are experiencing burnout due to the nature and sheer volume of the work. Courts report that Operation Streamline II has been particularly draining on their support staff because of the volume of additional paperwork. The courts have expressed difficulty in recruiting and retaining qualified probation and pretrial officers at various locations along the border. In Texas, for example, 19 new officers were hired in Laredo and 14 in McAllen in the last three fiscal years, but with little change in real staffing levels because of retirements, transfers to other districts, and resignations. Steps are being taken to explore whether the recruiting and retention problems might be alleviated with other possible enticements.

Court interpreting is required in virtually all criminal cases along the border and is provided either by official court staff interpreters or contract interpreters. Border courts say that recent prosecution activities have placed greater workload demands on their court interpreters. At some locations, moreover, it is difficult to find interpreters able to meet the rigorous certification standards required by the Court Interpreters Act. Accordingly, it has been suggested to the courts that they consider greater use of the Judiciary's Telephone Interpreting System to cover short court proceedings, seek additional staff interpreters in lieu of contract interpreters where the volume of work is sufficient, and encourage non-certified contract interpreters to register for the certification examination and qualify for staff interpreter positions.

Courts have also stated that it is difficult for them to attract staff interpreters because the salaries that the federal courts pay are not competitive. As a result, the Administrative Office is reviewing current compensation and expense levels to see whether increases are warranted.

14. Defender Services

A defendant charged with a federal criminal offense who faces the possibility of a jail term is entitled to counsel at government expense if he or she cannot afford to retain a lawyer. It is standard practice in all five border courts to appoint counsel for all indigent defendants charged with misdemeanor immigration offenses because the defendant's liberty interests are at stake. Representation is provided mostly by the federal public defender offices, which consist of full-time defense lawyers. But the recent caseload brought under Operation Streamline II has stretched the resources of the federal defenders, so panel attorneys are taking up the slack.

The number and nature of alien smuggling prosecutions has also had a significant impact on the federal public defenders' offices and Criminal Justice Act panel attorneys. Effective representation in immigration cases requires expeditious efforts by defense counsel to interview material witnesses before they are deported and potentially exculpatory evidence is lost. Rarely do the witnesses speak English, and sometimes they speak languages other than Spanish. Like defendants, material witnesses may be held in remote parts of the state. Many felony immigration cases, moreover, involve multiple defendants. A federal defender may represent only one defendant in order to avoid conflicts of interest. Panel attorneys must defend the others, often without easy access to investigators and interpreters.

It is apparent that additional staff positions will have to be authorized and funded as the number of prosecutions continues to increase. In addition, more panel attorney appointments will be needed. Some courts report that they have experienced difficulty in attracting competent private lawyers to take cases at certain border locations for the current gross rate of $100 per hour. The Judicial Conference has requested approval of the Congressional appropriations committees to raise the compensation for counsel to $118 per hour in 2009 and approximately $140 per hour in 2010.

Civil liberties advocates have expressed concern that the procedures followed under Operation Streamline II may not comply with the due process requirements of the Constitution. They question the appropriateness of combining large numbers of defendants into one consolidated proceeding and are skeptical that each defendant pleads guilty knowingly and voluntarily. The high volume of people prosecuted raises issues over the quality of representation furnished and the ability of the court to ensure the defendants' constitutional rights. In addition, most defendants, especially in immigration cases, are unfamiliar with legal proceedings and do not understand or speak English.

Federal public defenders are concerned that a shortage of lawyers or a lessening of the quality of representation may make it difficult for counsel to investigate properly the possibility of defenses for innocent defendants, effectively negotiate dismissals or reduced charges, or secure reasonable bond. In addition, because of space limitations at both holding facilities and courtrooms, defendants may not be able to carry on confidential consultations with their lawyers before or during court proceedings. Attorneys representing a large number of defendants may be unable to speak to them individually or privately before rendering advice, especially if they do not have sufficient time or space to consult with them. The chief judge of the United States District Court for the District of New Mexico has elaborated on the concern.

The increase in our criminal caseload, especially in Las Cruces, has caused us to conduct hearings in a way that we've never had to conduct them before, and in a way that other jurisdictions don't have to. We have ․ up to 90 defendants in a courtroom. Our magistrate judges try very hard to conduct their hearings in a way that is understandable to the defendants. But most of our defendants have a first or second grade education in their native countries. Some of them are not even able to read in their native languages. And so, we explain to them their constitutional rights in a legal system entirely foreign to them.

You line them up in a courtroom that is intimidating even to American citizens, and we ask them to waive their constitutional rights. It is a difficult atmosphere in which to waive important constitutional rights, and to ask them if they understand their rights. Defendants in other parts of the country do not have to give up critical rights in this atmosphere, only in the border districts because of this exploding caseload.

The courts are very much attuned to these concerns, and they will effectively continue to harmonize the competing interests of processing a heavy volume of cases and upholding the letter and spirit of the Constitution and federal laws to the best of their abilities.

15. Advance Notice of Changes in Prosecution Policies and Resources

A common complaint from judges and district court staff is that they rarely hear about major new prosecution initiatives until they have begun or are about to begin. As a result, individual courts, and the Judiciary as a whole, typically have little time to plan for the expected additional caseload, deploy court resources, or obtain additional resources. Cooperation and advance planning with the courts, including budget planning, is essential to assure the efficiency of law enforcement initiatives. To that end, the Judiciary is taking steps to enhance communications with the Executive Office for U.S. Attorneys and other components of the Department of Justice to prepare for future initiatives.

Similarly, there has normally been a lag in the appropriations process, in that prosecution resources have been provided to the Executive Branch without considering at the same time the impact that these additional resources will have on the Judiciary. Congress has been very responsive in providing needed funds to the courts to meet increased workload needs, but the Judiciary has often been in a reactive mode, having to seek resources after initiatives are already underway, particularly for additional judgeships.

Conclusions

The criminal caseloads of the federal courts are determined largely by the prosecution policies and resources of the Executive Branch. Starting with a series of initiatives in the 1990's, increased law enforcement resources have been applied to prosecuting crimes occurring along the Southwest border. As a result, the number of criminal cases filed by the government in the five district courts adjacent to the border increased greatly in the 1990s and through 2005, but then leveled off in 2006 and 2007.

The number of prosecutions, though, is now increasing again rapidly due to Operation Streamline II and other Executive Branch initiatives. U.S. attorneys and law enforcement agencies along the border are being provided with substantial additional personnel, the result of which is that many more criminal cases are now being filed. Most of the new cases are misdemeanor offenses, but felony cases are also increasing.

The actions of the Executive Branch have a direct and immediate impact on the work and resources of the federal courts. The U.S. Constitution, federal statutes, and federal rules of procedure require the courts to follow a series of basic procedures to protect both the rights of persons charged in criminal cases and the rights of the public. Each court proceeding requires the attention of a presiding judge. It must also be supported and documented by court staff, including clerk's office employees, probation and pretrial services officers, court reporters, and interpreters. Defendants, moreover, are entitled to be represented by an attorney at each stage of a criminal case. Since most cannot afford an attorney, the Judiciary must provide them with counsel using funds appropriated to its defender services account.

The Judiciary is responding broadly and promptly to the needs of the courts flowing from Operation Streamline II and other recent prosecution initiatives. Short-term caseload surges can and are being addressed effectively by redeploying existing judges and court staff on a temporary basis, borrowing judges from other districts, or recalling retired magistrate judges. But as stepped-up law enforcement and caseload increases continue, more permanent measures need to be taken.

Following its 2007 biennial national survey of judgeships needs, the Judicial Conference asked Congress to authorize an additional 10 district judgeships for the border courts. The 2009 national judgeship survey is underway, and the border courts have now submitted requests for 14 additional judgeships, rather than 10. The Judicial Resources Committee of the Conference considered the recommendations on a preliminary basis at its June 2008 meeting and will ask the courts for further comment. The committee will meet again in December 2008 to make its final judgeship recommendations, which will be considered by the Judicial Conference in March 2009 and then submitted to Congress.

In addition, three of the border courts to date have asked the Judicial Conference to authorize additional magistrate judge positions. A request for additional positions for Arizona has been approved by the Executive Committee on behalf of the Judicial Conference on an expedited basis using the emergency funding appropriated for workload associated with increased immigration enforcement. Additional requests are being considered for the Southern and Western Districts of Texas.

The border courts are also asking for additional deputy clerk positions, probation and pretrial services officers, and court interpreters. The federal defender offices along the border will need additional attorneys and other resources, and more Criminal Justice Act panel attorneys will be appointed to address the caseload surges.

Congress has provided additional funding in the last two years to address the resource needs of the border courts. Accordingly, the Judiciary should be in a strong financial position at this time to meet these current needs.

But one resource problem is much more difficult to resolve-the shortage of suitable courthouse and detention facilities at several locations along the border. There are simply not enough jail beds, holding cells, courtrooms, and related court facilities along the border to handle all the cases that the government would like to prosecute under Operation Streamline II and other initiatives. New courthouses are under construction at El Paso and Las Cruces, but the new courthouse at San Diego is on hold, and additional court facilities are needed at Yuma.

APPENDIX 1-CURRENT CONDITIONS IN THE FIVE BORDER DISTRICTS

1. District of Arizonaa. Caseload of the court

The District of Arizona has a heavy caseload, with 8,625 total filings in 2007-3,477 civil cases and 5,148 criminal defendants. Criminal filings in 2007 were 254 percent higher than in 1994. The weighted criminal caseload per authorized judgeship was 252 defendants, the third highest in the nation and more than twice the national average of 106. The caseload at Phoenix is predominantly civil in nature, while Tucson has a particularly large criminal caseload. The court's combined civil and criminal weighted caseload was 529 per judgeship in fiscal year 2007, above the threshold for requesting additional judgeships.

The district's felony caseload, two-thirds of which arises in Tucson, has grown by 154% since 1994 and is one of the highest in the nation. The five district judges at Tucson, for example, presided over 2,700 felony sentencings in FY 2007, or 540 per judge-about six times the national average for non-Southwest border district judges. In 2007, the six magistrate judges in Tucson conducted more than 19,000 preliminary proceedings for prosecution, mostly in felony cases, and disposed of just over 4,000 Class B misdemeanors and 765 Class A misdemeanors. In calendar year 2008, through April, the Tucson division magistrate judges have already disposed of over 3,700 Class B misdemeanors.

The court has 13 district judgeships-seven at Phoenix, five at Tucson, and one vacancy. The 2007 biennial judgeship survey resulted in the Judicial Conference recommending that Congress authorize five additional district judgeships for the court. The 2009 biennial survey is now under way, and the court has requested four permanent judgeships, one temporary judgeship, and conversion of one temporary to a permanent judgeship. The court has 12 magistrate judges-six at Tucson, four at Phoenix, and one each at Flagstaff and Yuma. The court has requested the Judicial Conference to authorize an additional magistrate judge position at Tucson and a new part-time magistrate position at Yuma.

b. Homeland Security and the U.S. Attorney's Office

The Border Patrol's Tucson sector consists of 262 miles of border and is by far the busiest sector on the border with Mexico. It is the nation's major corridor for marijuana smuggling, with half the marijuana entering the United States said to come through the sector. In fiscal year 2007, the Border Patrol arrested 378,000 people in the Tucson sector for being in the country illegally-about 44% of all aliens arrested in the five border districts. Less than one-half of one percent of the persons arrested, however, were actually prosecuted, even though nearly two-thirds of the district's criminal caseload involves immigration offenses.

The relatively small number of immigration prosecutions appeared to have been largely a product of a temporary shortage of assistant U.S. attorneys in the U.S. attorney's Tucson office. The shortage led the U.S. attorney to decrease felony prosecutions temporarily and suspend the prosecution of misdemeanors almost entirely.

With additional funding from the 2008 Consolidated Appropriations Act, the District of Arizona will receive 21 new assistant U.S. attorneys and 11 additional support staff. Consequently, the U.S. attorney's office now anticipates bringing at least an additional 40 felony cases per month. Operation Streamline II misdemeanor cases are being prosecuted by Border Patrol lawyers on loan serving as special assistant U.S. attorneys. It is expected, moreover, that the vacant assistant U.S. attorney positions will be filled shortly and several new attorneys added to the Tucson office.

Because of the enhanced resources, it is anticipated that the felony criminal caseload of the district will increase by 2,100 cases annually, with 1,400 of those cases being filed in the Tucson division. In addition, the U.S. attorney's office has announced that its guidelines for prosecuting marijuana trafficking cases will be adjusted substantially. They had required a minimum of 500 kilograms of marijuana (with certain exceptions), but will now be revised downward to 20 kilograms. This should greatly increase the number of marijuana prosecutions in the district.

c. Status of Operation Streamline II

Operation Streamline II began in the Yuma sector in December 2006 and in the Tucson sector in January 2008. The Border Patrol has proposed that 26,000 misdemeanor offenses be filed a year in the Tucson division, or 100 new cases per work day added to the court's normal daily docket. In January 2008, 40 new cases a day were being docketed. In February, the number was increased to 50 a day, in March to 60 a day, and in May, to 70 cases a day. The U.S. attorney's office has recently notified the district court that Operation Streamline will remain at its present pace of 70 cases per workday until the U.S. Attorney's Office has hired sufficient new assistant U.S. attorneys to prosecute most of the Operation Streamline cases, which are currently being prosecuted exclusively by special assistant U.S. attorneys. It is anticipated that by November 2008, the U.S. attorney's office will be able to reach the aspired number of 100 cases per workday. But it is also contemplated that at that time, Operation Streamline will no longer involve single-day proceedings. Instead, the U.S. attorney's office plans to extend the time of proceedings so that 100 defendants will appear each day for initial appearances and will return two days later for arraignments, changes of plea, and sentencings. This, of course, will double the number of hearings for each Operation Streamline defendant and double the number of Operation Streamline hearings each day. At Yuma, the Border Patrol expects to bring 35-40 misdemeanor cases per work day before the magistrate judge.

d. Space limitations

There are serious space limitations at Tucson. Planning for the Evo A. DeConcini Courthouse in Tucson began in 1991, when there were about 700 filings annually at Tucson. Although anticipated future growth was taken into consideration in planning the building, budgetary constraints ultimately reduced the size of the building from a facility that could accommodate 30 years of growth to one that would accommodate only 10. By the time the building opened in 2000, felony filings at Tucson had already more than tripled to 2,225.

The courthouse has holding space for about 140 in-custody defendants. But since space is needed every day for 80 defendants in felony cases, the maximum number of defendants that could normally be handled under Operational Streamline II would be 60 a day. The courthouse's special proceedings courtroom is now used exclusively for Operation Streamline II cases. For all practical purposes, it serves as a detention facility in the mornings, with tables spread throughout the well of the courtroom for lawyers to meet with their clients, and as a courtroom in the afternoons, with the tables left in place.

The court explored using a deportation hearing room on a temporary, emergency basis at the Border Patrol's detention facility at Davis-Monthan Air Force Base, to which the magistrate judges could go every day to conduct additional, overflow misdemeanor proceedings. But adequate space for conducting court proceedings does not currently exist at the Border Patrol facility, although the Border Patrol offered to build a courtroom with adequate dimensions and public seating, interview space for attorneys, and appropriate systems technology equipment and infrastructure. In the short term, though, by creative placement of in-custody defendants and holding hearings in shifts in the special proceedings courtroom, the court will be able to hear 100 Operation Streamline II cases a day in the DeConcini courthouse. For the long term, however, it will be necessary to expand cellblock space.

Due to limitations on the size of the courthouse and holding facilities in Yuma, the maximum number of misdemeanor immigration cases currently being brought before the magistrate judge at that location is 35 to 40 per work day. A new courthouse at Yuma has been discussed for years. It was first approved in 2003, but was deferred in 2004 as part of the Judiciary's space moratorium. It was approved by the Ninth Circuit and the Administrative Office to proceed in 2007 and would increase the current courthouse space at Yuma from 7,755 square feet to 19,440 square feet. The court reports that a proposal for a “build to suit leased courthouse” is ready to proceed, but for a $2.5 million contribution from the Marshals Service for holding cells and a sally port.

The average daily prisoner population for in-custody defendants in the district in the fiscal year 2007 was 4,411, with nearly 3,000 of them from the Tucson division. Pretrial detainees from throughout the district are housed in the Central Arizona Detention Center (CCA), a privately owned facility in Florence-about 130 miles and a 21/212-hour round-trip from Tucson. The Marshals Service spent nearly $113 million to house defendants in non-federal facilities during the 12-month period ending March 31, 2008, with $71 million of the $113 million spent on Tucson division defendants. The district court makes a compelling case that construction of a federal Metropolitan Correctional Center in Tucson would save the taxpayers a great deal of money.

During the month of March 2008 alone, court-appointed attorneys filed vouchers with the court requesting reimbursement of nearly $80,000 for travel time and nearly $20,000 for mileage costs. Extrapolating from these figures, the Judiciary's annual costs for travel time and mileage incurred by court-appointed counsel traveling between Tucson and Florence will be nearly $1.2 million.

e. Support staff

The court needs additional resources to handle the surge of additional cases that the U.S. attorney is now filing in Tucson and Yuma. It is formulating a request that will include additional deputy clerks to staff the courtrooms, operate the sound equipment, and process the increased volume of cases and records. The clerk's office has already hired additional staff to review the vouchers submitted by panel attorneys, and it will need extra interpreters. To handle all the cases that the Border Patrol wants to bring, the court will also need additional courtrooms, office space, equipment, and interpreters.

Since Operation Streamline II targets misdemeanor offenses, it generally has not increased the work of the pretrial services and probation officers. In 2007, however, the U.S. attorney increased significantly the number of felony immigration cases in Tucson and Phoenix. As a result, the pretrial services workload, which was impacted immediately by the increase, rose by 36% in Tucson and 32% in Phoenix. The impact on the probation office is delayed, since it normally does not get involved in a case until after a defendant has been found guilty. In 2007, the probation office experienced a 4% increase in presentence investigations and reports, and it expects a significant increase in the coming months as additional defendants are convicted. It appears that the additional caseload will require additional staff in the fiscal year 2009 allocation.

The district is second in the nation in the number of post-sentence revocation hearings in which defendants have been accused of violating the terms of their probation or supervised release. Each district judge hears about 104 of these proceedings a year. The probation office is responsible for supervising the defendants, monitoring the conditions of release, and asking for arrest warrants and revocation hearings when there have been violations.

f. Defender services

It is proving difficult and more costly to provide competent defense counsel to all the new defendants being prosecuted under Operation Streamline II. Nearly all in-custody pretrial detainees at the CCA have court-appointed counsel. These attorneys have to travel 130 miles and 21/212 hours per round trip to meet with clients. Based on recent experience, the annual cost for compensation and travel expenses would be nearly $1.2 million. The federal public defender's office is able to provide only a fraction of the new representations. Most of the new cases will require representation by private attorneys appointed from the district's Criminal Justice Act panel. The defender's office has indicated that the 21 new assistant U.S. attorney positions and new prosecution initiatives will require several additional attorneys and support staff.

2. Southern District of California

a. Caseload of the court

The court has a heavy caseload, with 2,829 civil cases and 3,853 criminal defendants filed in 2007. Felony criminal filings per judgeship are among the highest in the country. The felony caseload, moreover, which grew by 154% between 1994 and 2007, is increasing again, as a new U.S. attorney has stepped up prosecution of felony immigration cases. In 2007, prosecutions rose by 21% from 3,180 to 3,853. The increase is continuing in 2008, as filings rose by another 17% from January 2007 to January 2008.

Much of the prosecution focus lies with increasing operational control of the border. As a result, the district has seen a steady escalation of cases involving alien smuggling, criminal alien re-entries, illegal possession of firearms, and border-related violence. With six ports of entry along the international border in the district, drug smuggling prosecutions remain a staple of the criminal caseload. All these cases consume large amounts of court resources, particularly alien smuggling and human trafficking prosecutions, since they tend to have numerous material witnesses who require interpreters, generate many attorney vouchers, and require special space and security considerations.

The court has 13 authorized district judgeships. Twelve district judges are stationed in San Diego and one position is currently vacant. The Judicial Conference did not recommend additional district judgeships as part of the 2007 biennial survey of judgeship needs. The 2009 biennial survey is now under way, and the court has asked for two additional district judgeships. It also has 10 magistrate judges, nine in San Diego and one in El Centro.

b. Homeland Security and the U.S. Attorney's Office

The U.S. attorney is coordinating a comprehensive border prosecution strategy that encompasses all the component offices of the Department of Homeland Security. The Border Patrol has hired about 1,000 more agents in the district, which has resulted in an increase in the prosecutions of illegal entrants arrested between the ports of entry. Customs and Border Protection has increased alien and drug smuggling cases arising at the ports of entry. Immigration and Customs Enforcement has increased prosecutions in the area of worksite enforcement, human trafficking, tunnel smuggling, narcotics, weapons trafficking, and maritime smuggling. Its Detention and Removal Office has increased the number of federal prosecutions of previously deported criminal aliens and illegal alien gang members who are held in state custody. As a result of this aggressive approach, the district's new U.S. attorney has greatly increased the number of felony cases, and the trend is expected to continue in the coming year. The office is expected to add seven new assistant U.S. attorneys and 5 support staff as a result of funds appropriated for 2008.

c. Status of Operation Streamline II

A misdemeanor program akin to “Operation Streamline II,” called “Operation Arizona Denial,” is in place in the eastern-most 10-mile stretch of the district. First-time illegal entrants with no previous criminal history who are apprehended by agents of the Yuma Sector of the Border Patrol are brought to Yuma, Arizona, and prosecuted there for misdemeanor violations, rather than in the Southern District of California.

d. Space limitations

The existing federal courthouse in San Diego is seriously overtaxed, and the Judicial Conference in 2003 declared San Diego to be a space emergency. A new courthouse with 14 more courtrooms and 18 chambers has been approved, and it represents the Judiciary's single highest national building priority. At this point, however, only the hole for the foundation has been dug across the street from the existing courthouse. No courthouse construction has begun because the General Services Administration could not get an acceptable bid on the project. It needs an additional $110 million due to delays and the escalation of construction costs in the region. If the additional funds are appropriated, the current plan is to solicit again for bids in January 2009, award a contract by June 2009, and begin construction later in 2009. The President's fiscal year 2009 budget request includes the additional $110 million for the project (the only new courthouse included in his budget). The Judiciary is very much concerned that any delays in obtaining Congressional authorization and appropriations for the project will jeopardize award of a construction contract and ultimately lead to higher costs.

Because of a lack of jail space, the Marshals Service currently houses about 200 defendants in Arizona who have cases pending in the Southern District of California. This presents difficult logistical problems for the local marshals in having to continuously move defendants back and forth between the holding facilities and the courthouse.

e. Support staff

With the significant increase in new felony immigration prosecutions brought by the new U.S. attorney beginning in 2007, the caseload of the court's pretrial services and probation offices increased immediately. The number of pretrial services investigations rose by 71% in El Centro and 13% in San Diego. The number of presentence investigations and reports rose by 8% in the district in 2007. The caseload of the probation office was 15% higher in the fourth quarter of the fiscal year 2007, higher than in the first quarter of the year, and the office projects a steady increase in presentence reports over the coming months.

The additional workload of the probation and pretrial services offices flowing from the increase in felony prosecutions will require that additional staff be provided to those offices in the fiscal year 2009 allocation of resources to the courts. The emergency funding included in the Judiciary's Fiscal Year 2008 appropriations for workload associated with increased immigration enforcement will fund the additional staff needed in this office in 2009.

Clerk's office statistics show an increase of 18% in the number of Spanish staff interpreter events from FY 2006 to FY 2007. During the same time period, Criminal Justice Act vouchers increased by 24% in the number of vouchers processed and 47% in the total amount paid. The clerk's office has hired additional staff to review the vouchers submitted by panel attorneys and will receive two additional interpreter positions in FY 2009.

Court unit executives in the Southern District of California report increasing difficulties in recruiting and retaining staff because of the high cost of living in San Diego. There are real, but uncompensated costs for court offices that must stay in a perpetual state of recruitment, hiring and training to address workload demands. The costs are not adequately reflected in the current staffing and salary formula. Thus, court offices that constantly work under these administrative realities are disproportionately impacted. Court offices with significant recruitment and retention issues could benefit from staffing additives to offset these adverse effects. The Administrative Office is working with the affected courts to address their concerns regarding the adequacy of the staffing formula and salary levels.

San Diego's current federal locality pay differential is 22%. But several other cities enjoy a higher differential. In addition to not being able to offer adequate salaries, court employees in San Diego also lose when reimbursed for expenses. For example, recently, the government's mileage reimbursement rate increased by 4%, but the cost of gasoline in the San Diego area-some of the highest gas prices in the nation-has increased by more than a third since September 2007.

Recruitment of experienced probation and pretrial officers and staff is hampered by the increase in salaries, retirement plans, and other benefits available to county probation offices and the state parole office. Federal salaries for administrative support staff, particularly IT staff, are not competitive with the private sector.

The clerk of court reports that a competitive candidate for financial deputy withdrew recently when notified that the starting salary was $20,000 less than his current entry level job with a financial institution in San Diego. The clerk also reports having a vacancy in an IT network position for over a year. IT retention bonuses have had less impact because employees know that these incentives are not counted in retirement calculations and, therefore, do little for their long term benefit.

f. Defender services

The federal community defender office advises that it is operating above capacity and estimates that its caseload per attorney this year will be 24% above the amount fixed in its annual budget. The emergency funding for workload associated with increased immigration enforcement that was included in the Judiciary's Fiscal Year 2008 appropriation will fund the additional attorney positions needed in this office in 2009. However, the high cost of living in San Diego and federal salaries that are not competitive with the private sector make it difficult to recruit and retain staff.

3. District of New Mexico

a. Caseload of the court

The court has a heavy caseload, with 1,449 civil cases and 2,733 criminal defendants filed in 2007. Criminal filings in 2007 were 135 percent higher than in 1994. The weighted criminal caseload per authorized judgeship was 270 defendants in 2007, the second highest in the nation. The number of felony filings brought by the U.S. attorney's office declined in the last two years, but has been rising recently. Most of the court's criminal caseload arises in Las Cruces, where 2,188 of the 2,733 felony defendants were charged. The court's felony caseload has grown by 184% since 1994, and its combined civil and criminal weighted caseload was 527 per judgeship in the fiscal year 2007, above the threshold for requesting additional judgeships.

The court has seven district judgeships-four in Albuquerque, one in Las Cruces, and two in Santa Fe. The 2007 biennial judgeship survey resulted in the Judicial Conference recommending that Congress authorize two additional district judgeships for the court. The 2009 biennial survey is now under way, and the court has asked for one additional judgeship and conversion of its temporary district judgeship to permanent status. The court has 10 full-time magistrate judges-five in Albuquerque and five in Las Cruces. It also has one full-time retired magistrate judge on active service in Albuquerque and two part-time magistrate judges-one in Roswell and one in Gallup.

b. Homeland Security and the U.S. Attorney's Office

By the end of FY 2008, the Border Patrol will have increased its agent staffing in New Mexico from 1,170 to 1,702. The increased staffing will result in the Border Patrol bringing up to 170 new arrestees per week to the Las Cruces federal courthouse-more than a 100% increase in arrest numbers over FY 2007. The 170 arrests-per-week figure was calculated during a series of strategy sessions involving the U.S. attorney and the El Paso Sector Chief of the Border Patrol, with agreement by the United States marshal, whose cellblock and detention space represent the principal choke point in the process. The vast majority of the increase in arrests will be for misdemeanor illegal entry under 28 U.S.C. § 1325.

To accommodate the increased caseload, the U.S. attorney's office is in the process of filling four current assistant U.S. attorney vacancies and will be hiring an additional seven assistant U.S. attorneys and five support staff as a result of an additional $7 million in 2008 appropriations.

c. Status of Operation Streamline II

Operation Streamline II, known as Operation Lock Down in New Mexico, is in effect in Las Cruces. It is an enhanced prosecution initiative that moves the Border Patrol towards a zero tolerance policy in the District of New Mexico. Before it began, the magistrate judges at Las Cruces had disposed of about 150 misdemeanor cases a month, in addition to handling a heavy caseload of preliminary proceedings in felony cases. They are now handling an additional 150 misdemeanor cases a month under Operation Lock Down and should be able to accommodate the Border Patrol's request to handle another 180 misdemeanor cases a month. But to accommodate the additional caseload, the court may have to transfer even more felony cases to Albuquerque to enable the magistrate judges to focus on the increase in misdemeanor cases. In 2007, the court transferred approximately 600 felony cases from Las Cruces to Albuquerque after the initial appearance in Las Cruces because of a lack of courtroom space in Las Cruces.

Although Operation Lock Down is a significant operation, there have been and there are today other initiatives by Homeland Security. For example, Customs and Border Protection is engaged at the ports of entry in false document operations. This initiative created a spike in felony filings in Las Cruces in December 2007, as all false document cases were charged as felonies. Also, Immigration and Customs Enforcement's Detention and Removal component has created a Criminal Alien Program under which individuals in state and local custody who are illegally in the country are identified and apprehended. When released from state and local custody, they are deported or charged with a federal offense in the district court. This results in a significant number of additional felony cases in both Las Cruces and Albuquerque. Additionally, Immigration and Customs Enforcement's Investigations component is ramping up to bring a significant number of additional workplace enforcement cases. This will also result in additional multi-defendant felony cases being charged in the district court.

d. Space limitations

Due to limitations on the number of jail beds available to the marshal for housing arrested defendants, the U.S. attorney has limited the number of additional immigration cases brought in Las Cruces under Operation Lock Down. Court facilities are also very limited. The Marshal Service's cellblock in Las Cruces has a 39-person capacity if all the prisoners are adult males. If there are females or juveniles, one or more cells has to be used to segregate them from the adult male population.

To accommodate the caseload, the cellblock in the Las Cruces courthouse is regularly over capacity. Prisoners can be moved through a secure corridor throughout the building to three courtrooms that have adjacent holding cells. There is also a fourth courtroom in the building that is severely undersized to which defendants can be escorted only through the public hallways. There is, moreover, no office space for the additional clerk's office staff hired to handle the increased caseload. The cellblock's vehicular sally port will only hold two vans, and the parking area for the marshals and the judges is accessible to pedestrian traffic and unsecured. A new courthouse in Las Cruces is under construction but is not expected to be completed until 2010.

The district judges in Albuquerque and Santa Fe travel to Las Cruces to handle the felony caseload on a rotation basis (driving three to four and one half hours each way). In addition, New Mexico relies upon its two senior district judges and visiting judges who come to Las Cruces to assist. But only one judge can visit at a time due to the lack of courtroom space.

e. Support staff

The clerk's office has hired additional deputy clerks to handle the increased workload and is currently hiring two additional deputy clerks, one for case processing and one to process Criminal Justice Act panel attorney vouchers, which have increased by about 500% since 2001. The court has experienced difficulty in hiring staff interpreters and information technology staff at the currently authorized salaries. There are very few certified Spanish interpreters in the Las Cruces area. Because of the high number of Spanish-speaking defendants, the court interpreters work long hours, not only in court but also providing simultaneous translating for counsel before hearings, during court recesses, and on the telephone. Almost every proceeding along the border requires an interpreter, and almost every document must be translated and explained, making the process cumbersome and more time consuming. Judges frequently receive letters from defendants and their families before sentencing expressing the circumstances at home or bringing confinement conditions or medical issues to the attention of the court. All must be translated before court hearings. Recruiting from outside the area is difficult without some type of relocation assistance.

With the Border Patrol increasing its weekly misdemeanor arrests (the majority of which result in charges of illegal entry without inspection) and with Operation Lock Down adding another 180 misdemeanor cases per month at Las Cruces, the pretrial services officers there will be impacted directly. There will be a significant increase in the amount of time that officers have to spend in court for initial appearances, preliminary hearings, pleas, and sentencings before the magistrate judges. Currently, an officer normally spends about 21/212 hours each day in court-but the increase in work could easily double the time that officers must spend in court.

The Customs and Border Protection initiatives have increased pretrial services investigations, since false-documents cases are prosecuted as felonies. Immigration and Customs Enforcement's Detention and Removal Criminal Alien Program could increase the number of felony investigations in both Las Cruces and Albuquerque. There has been a 9% increase in overall pretrial investigations throughout the district from the second quarter of FY 2007 to the second quarter of FY 2008.

Further, both the increase in misdemeanor immigration prosecutions and the increase in false documents prosecutions translate into additional requests for modified or abbreviated presentence reports. For example, in the second quarter of FY 2008, there was a 21% increase in the total number of modified or abbreviated presentence reports over the same time period in FY 2007. An additional 8% increase is anticipated within the next fiscal year.

The newly proposed Immigration and Customs Enforcement workplace enforcement initiative may result in an increase in pretrial and presentence activity. It will target illegal immigrants working in the United States. The cases tend to be difficult as they often involve complicated family issues. The workers may be illegal, but their children are U.S. citizens.

The U.S. marshal's office was staffed at 55% of its staffing formula in December 2007-the lowest staffed office in the nation. The marshal recently was given authority to fill 10 positions-4 detention and enforcement officers, 4 deputy marshals, and 2 administrative staff. After these positions are filled, the office will be staffed at approximately 70% of formula.

Because New Mexico does not have a federal detention facility, the Marshals Service leases detention space at eight separate facilities scattered throughout the state. This significantly adds to its transportation and personnel costs. It also imposes additional costs on the Judiciary because federal defender attorneys, Criminal Justice Act panel attorneys, and interpreters must travel long distances to interview defendants at the various detention facilities. And because of the lack of courtrooms and cellblock space in the Las Cruces courthouse, about 600 defendants are transferred to Albuquerque annually. This also adds transportation and personnel expenses.

f. Defender services

As a result of increased border enforcement, there has been a great increase at Las Cruces in the number of criminal case appointments under the Criminal Justice Act. Most cases involve misdemeanor illegal entry charged under 8 U.S.C. § 1325. The federal public defender's office already is fully engaged in providing representation in felony cases and does not currently have the capacity to take on an increased caseload. Consequently, the increased misdemeanor offenses have been assigned for the most part to the CJA panel attorneys. From January 2007 to January 2008, panel attorney appointments at Las Cruces increased from 210 to 354. From February 2007 to February 2008, they increased from 197 to 334. The defender's office will seek additional attorneys and support staff for Las Cruces.

4. Southern District of Texas

a. Caseload of the court

The court has a heavy caseload spread out among several geographic locations. There were 12,731 total filings in the district in 2007-6,434 civil cases and 6,297 criminal defendants. Filings in 2007 were 184 percent higher than in 1994. The weighted criminal caseload was 224 defendants per authorized judgeship, the fourth highest in the nation and more than twice the national average of 106. The judges at Houston carry a large and complex caseload of civil cases. The great majority of the court's criminal cases are filed at Laredo (1,884), McAllen (1,437), Brownsville (1,285), and Corpus Christi (862). The court's combined civil and criminal weighted caseload was 543 in the fiscal year 2007, above the threshold for requesting additional judgeships.

The court has 19 district judgeships-10 in Houston; two each in Brownsville, Corpus Christi, Laredo, and McAllen; and one in Victoria. The 2007 biennial judgeship survey resulted in the Judicial Conference recommending that Congress authorize an additional two district judgeships for the district. The court has renewed its request for two additional judgeships in the 2009 biennial survey. The district has 14 magistrate judges-five in Houston, one in Galveston, and two each in Corpus Christi, Laredo, Brownsville, and McAllen. The court will review its current workload to decide whether to request additional magistrate judge positions.

b. Homeland Security and the U.S. Attorney's Office

The Rio Grande Valley Sector (formerly known as the McAllen Sector) has its headquarters in Edinburg and covers 17,000 square miles of Southeast Texas, including the following counties: Cameron, Willacy, Hidalgo, Starr, Brooks, Kenedy, Kleberg, Nueces, San Patricio, Jim Wells, Bee, Refugio, Calhoun, Goliad, Victoria, Dewitt, Jackson, and Lavaca. There are nine stations in the Rio Grande Valley Sector-Brownsville, Fort Brown, Weslaco, Harlingen, McAllen, Rio Grande City, Falfurrias, Kingsville, and Corpus Christi. In April 2008, there were 2,015 Border Patrol agents stationed in the sector, with an additional 400 new agents to be assigned to the sector by the end of 2008.

The U.S. attorney's office currently has 151 attorneys in the district, with seven new attorneys to be added shortly. The district will receive an additional 14 assistant U.S. attorneys and seven support staff from 2008 appropriations, with 11 of the attorneys assigned to border offices.

c. Status of Operation Streamline II

Operation Streamline II began in the Laredo sector in November 2007. Before that time, the magistrate judges had averaged about 90 misdemeanor immigration cases a week. They are currently handling up to 400 a week, and in January 2008, they disposed of 1,228 cases. The court's heavy felony caseload at Laredo has not declined since Operation Streamline II began, so the increased workload of misdemeanor cases has added to the magistrate judges' substantial workload of preliminary proceedings in felony cases.

Operation Streamline II will be beginning in Brownsville some time in June 2008, but has not been implemented in McAllen. The U.S. attorney has not approached the court about extending the program to McAllen. There is some indication, though, that more misdemeanor immigration cases are being brought in McAllen.

d. Space limitations

The court does not have an immediate shortage of courtrooms along the border. But the size of the courthouse holding facilities at Laredo limits the number of misdemeanor immigration cases that can be brought to 80 per day at that location. Especially critical is the shortage of holding cells, processing areas, and even elevators to move large numbers of prisoners. Because of the shortage of holding cells in Laredo, where a new courthouse services the area, a courtroom has to serve as a staging area/holding area, adjacent to the magistrate judge courtroom where the arraignments and sentencings occur. Brownsville too has a new courthouse, but it was not designed for the numbers that zero tolerance enforcement can produce. The McAllen court is in a bank building, so it too may not be able to accommodate a surge in prosecutions. The decision to delay the implementation of Operation Streamline II in Brownsville and McAllen may be due in part to the lack of detention facilities and U.S. marshal resources at those locations.

e. Support staff

The magistrate judges note that the increased workload flowing from Operation Streamline II has been particularly draining on everyone in the courthouse in Laredo, especially the court support staff because of the heavy volume of documentation and processing associated with the new caseload.

The clerk of court will need to increase staff to support the workload resulting from the surge of cases brought under Operation Streamline II. It is estimated that for every additional 600 misdemeanor cases filed per month, one additional deputy clerk position will have to be allocated to support the judicial work of the magistrate judges. The current national workload allocation formula does not adequately credit the workload associated with immigration misdemeanor cases, but it will be revised. Increased felony filings will also require additional staffing for the clerk's office, but felony work is adequately measured in the current staffing formula. Additional staff may also be needed to review the increasing number of payment vouchers submitted by attorneys appointed to represent defendants under the Criminal Justice Act. Finally, Spanish-language interpreter services will increase, and it is difficult to hire court-certified staff and contract Spanish interpreters, particularly in Laredo.

The probation office in Laredo reviews the criminal record of all misdemeanor defendants to determine whether they have had previous illegal entry convictions for which a term of probation had been imposed. If convicted again for illegal entry, a defendant has violated the standard condition of supervision prohibiting the commission of a federal, state, or local crime. Accordingly, the defendant is charged with violation of probation and subject to revocation of probation and re-sentencing to a jail term.

Probation officers work in the magistrate judges' courtrooms each day to report to the judge the results of the criminal record reviews and advise whether a violation report is needed. Revocation hearings for probation violators are normally held within a few days of a defendant's initial appearance and sentencing on the new illegal entry charge. For the 12-month period ending in January 2008, probation officers in Laredo completed nearly 1,500 violation reports.

Beginning in April 2008, pretrial services officers in Laredo started assisting the probation officers in conducting records checks in misdemeanor cases. Because the pretrial services office does not normally conduct pretrial bond investigations for misdemeanor offenses, it will not receive credit for the new work under the current national work measurement formula. Credit for the work was withdrawn as part of the Judiciary's recent cost-containment initiatives, but may be taken into consideration again in the future. In addition, because the Laredo division has experienced a small but steady stream of cases filed as felonies when offenders return to the United States after being deported under Operation Streamline II's zero-tolerance policy, the work of pretrial services and probation officers will increase further.

The U.S. attorney's office recently has increased felony prosecutions in Brownsville and McAllen, thereby increasing the investigation and report workload of both pretrial services and probation officers. Pretrial services investigations increased by 7% in the district as a whole in the calendar year 2007, but by 19% in Brownsville and 29% in McAllen. The growth will result in an increase in presentence investigations for the probation office in the coming months.

Part of the reason for the increased felony workload in McAllen appears to be the practice of Immigration and Customs Enforcement agents in searching for illegal aliens who have been convicted previously of state aggravated felonies. If they have been convicted in state court, sentenced to a term of imprisonment, and deported on completion of their state jail sentence, their return illegally to the United States-no matter what the new charge-is the basis for felony reentry charges. ICE agents are issuing immigration detainers and seeking federal prosecution under 8 U.S.C. § 1326 (deportation after a conviction for committing an aggravated felony), which carries a maximum sentence of 20 years' imprisonment. The average number of pretrial services investigations in McAllen had been about 100 per month, but increased to 173 in January 2008 and 105 in the first two weeks of February, a rate of more than 200 per month.

f. Defender services

Operation Streamline II and other prosecution initiatives have placed significant additional burdens on the Federal Public Defender and Criminal Justice Act panel attorneys in the district. The defender's office is currently operating above capacity, especially in the border divisions. In FY 2007, the office closed 18,018 cases (felonies and misdemeanors). Based on the first four months of FY 2008, the office expects to close 24,801 cases over the course of the full year, an increase of 37%.

The impact on defender services in the district varies by division. In the border divisions, the defender's office handles virtually all misdemeanors and the majority of felony prosecutions because the court has found it difficult to recruit competent attorneys willing to represent defendants at the currently authorized rates. In Laredo, where Operation Streamline II has been in operation since October 2007, the defender's office expects to close 12,589 cases. Two assistant public defenders and an investigator are devoted to the magistrate judges' courtroom full-time to handle the caseload. Additional attorneys and investigators are called upon to provide additional help as needed, although they also carry a heavy felony caseload.

Although Operation Streamline II has not yet been implemented in Brownsville (the implementation date for Brownsville is some time in June 2008) or McAllen, the felony docket is already increasing in those divisions. For example, the defender's office estimates that the office will close 13% more cases in McAllen in FY 2008 than in FY 2007. Attorneys in those divisions have assigned duty days in the magistrate judges' courtrooms and also carry heavy felony caseloads.

Effective representation is encumbered by the sheer size of the district. Attorneys in the Corpus Christi division are responsible for cases in both Corpus Christi and Victoria, a round trip distance of 176 miles. Throughout the district, clients are incarcerated in remote locations, sometimes requiring round-trip visits of more than 400 miles. Even the Houston division is facing substantial immigration prosecutions, as the U.S. attorney's office has begun prosecuting most aliens found who have had previous deportations or felony convictions. The government even has a special unit at the international airport that detains aliens trying to leave the country if they have been previously deported.

5. Western District of Texas

a. Caseload of the court

The court has a heavy caseload spread out among several geographic locations. There were 9,983 total filings in the district in 2007-3,193 civil cases and 6,790 defendants. Criminal defendant filings peaked in 2007, and they were 238 percent higher than in 1994. The criminal weighted caseload was 374 defendants per authorized judgeship in 2007, more than three times the national average of 106. The two divisions directly on the border accounted for two-thirds of the felony criminal filings-El Paso (3,395) and Del Rio (1,188). But each of the other five court locations also had appreciable felony caseloads-San Antonio (773), Pecos (418), Waco (401), Midland-Odessa (309), and Austin (306). The court's felony caseload has grown by 238% since 1994, and its combined civil and criminal weighted caseload was 650 per judgeship in fiscal year 2007, considerably above the threshold for requesting additional judgeships.

The court has 13 district judgeships-four each in San Antonio and El Paso, two in Austin, and one each in Del Rio, Midland-Odessa, and Waco. The 2007 biennial judgeship survey resulted in the Judicial Conference recommending that Congress authorize one additional district judgeship for the court. The 2009 biennial survey is now under way, and the court has submitted a request for four additional district judgeships.

The court has 13 magistrate judges-three each in San Antonio and El Paso, two each in Del Rio and Austin, and one each Pecos (residing in Alpine), Midland-Odessa, and Waco. Magistrate judges also routinely hold proceedings in two other court facilities outside a divisional office location and staffed by clerk's office personnel (i.e., Alpine and Fort Hood). The court has requested approval of two additional magistrate judge positions, in large part because of the increased caseload attributable to Operation Streamline II.

b. Homeland Security and the U.S. Attorney's Office

The Border Patrol maintains a significant presence within the geographical boundaries of the Western District of Texas, which has more than 800 miles of contiguous border with Mexico. There are four separate Border Patrol Sectors in the district, each comprised of several different stations and checkpoints: (1) El Paso (consisting of 1,167 agents in stations located at El Paso, Ysleta, Fort Hancock, and Fabens, and a checkpoint at Desert Haven); (2) Marfa (consisting of 323 agents in stations located at Marfa, Alpine, Fort Stockton, Midland, Pecos, Presidio, Sanderson, Sierra Blanca, Van Horn, and Big Bend, and checkpoints outside Marfa, Sierra Blanca, and Alpine); (3) Del Rio (consisting of 942 agents in stations located at Bracketville, Carrizo Springs, Comstock, Del Rio, Eagle Pass, Rock Springs, and Uvalde, and checkpoints at Comstock, Cline, and Highway 57 near Eagle Pass); and (4) Laredo (though predominantly located in the Southern District of Texas, it maintain two stations in the Western District at San Antonio and Cotulla). Although figures are presently unavailable, it is anticipated that the number of Border Patrol agents assigned to the various stations in these four sectors will increase and result in a corresponding increase in felony and misdemeanor case filings.

Currently, the United States attorney's office for the district has authorized staffing for 102 attorneys, with 98 presently on duty. With the 2008 appropriations, the Western District of Texas will receive an additional 16 assistant U.S. attorneys and seven support staff, with 14 of the attorneys assigned to border offices.

c. Status of Operation Streamline II

Operation Streamline II was initially launched in December 2005 in the Del Rio Sector of the Border Patrol. It began operating on a one-mile stretch of the border near Eagle Pass and was later expanded to cover the entire 200-mile Del Rio Sector of the border.

Initially, the number of misdemeanor immigration defendants brought before the magistrate judges under Operation Streamline II was about 140 per day. This was an increase of 350% over the misdemeanor caseload before the operation began in Del Rio. After more than two years of Operation Streamline II, both apprehensions and prosecutions have decreased significantly, due in large part to the success and deterrent effect that increased law enforcement activity by the Border Patrol has had in the Del Rio division. The magistrate judges in Del Rio now handle between 50 and 80 immigration misdemeanor cases a day. They disposed of 13,812 misdemeanor cases in fiscal year 2007, an average of 55 per workday.

At El Paso, increased prosecution of immigration cases began in July 2007. The U.S. attorney's office chose to bring most cases as felonies, resulting in a substantial increase in the volume of initial proceedings conducted by the magistrate judges in El Paso. At the same time, misdemeanor immigration cases declined slightly. But the magistrate judges have been informed by the Border Patrol and the Marshals Service that the number of misdemeanor offenses would start increasing shortly as the Border Patrol focuses on specific “hot zones” along the border, where all defendants apprehended for illegal entry in a targeted zone will be prosecuted for misdemeanor offenses rather than being allowed to return voluntarily to Mexico without a court appearance. Due to limitations in jail accommodations and courthouse holding facilities available to the Marshals Service, the maximum number of misdemeanor immigration cases that can be brought before the magistrate judges is 20 per day.

Operation Streamline II was initiated in February 2008 in El Paso under the name of “Operation No Pass.” There is no indication that it is being extended to Alpine at this time.

d. Space limitations

Space is very limited in El Paso, but a new, state-of-the-art federal courthouse is expected to be completed by May 2009. If Operation Streamline II becomes fully operational in El Paso before that time, it will present a serious challenge to the current resources available to the Marshals Service and the district court.

The existing courthouse facilities in Austin, Del Rio, El Paso, Midland-Odessa, and San Antonio do not provide separate and secure circulation paths for judges, court employees, prisoners, or the public. Virtually all individuals working or having business in these buildings-judges, court staff, lawyers, jurors, and the public-must use the same corridors and pathways as the prisoners. This kind of prisoner movement poses a dangerous potential for a security disaster. New courthouses in El Paso, Austin, and San Antonio will remedy these problems, but the facilities are not scheduled for completion earlier than 2009, 2012, and 2013, respectively. This assumes the best case scenario that construction funding will be provided for the Austin project in 2009 and the San Antonio project in 2011.

In addition, consideration must be given to space challenges in Del Rio and Midland. The courthouses in these locations have not been thoroughly evaluated. The courthouse in Del Rio does not meet the setback requirements for new federal courthouse construction. Nonetheless, it continues to be expanded to meet the short term requirements that a growing docket necessitates. The courthouse in Midland is no longer able to sustain the growth of the court agencies located there. The Marshals Service must move prisoners through public stairwells to the two courtrooms in the courthouse. Before FY 2008, prisoners had actually been moved through the chambers of a magistrate judge. Serious consideration must be given to a new courthouse facility in Midland.

e. Support staff

The clerk's office in the district is working creatively and effectively to manage the heavy criminal docket efficiently. In an effort to streamline and automate the huge record-keeping burdens that have come with the increased prosecutions, the direct result of Operation Streamline II as implemented by the Del Rio Sector of the border patrol, the clerk's office has developed “RAMBO,” the Referrals Automated Module for Border Offices. It enables an automated exchange of case referral information between the court and the Border Patrol for misdemeanor and felony referrals and arrests. The clerk's office and the Border Patrol have worked together to facilitate and expedite a seamless exchange of information and data electronically. What previously had taken the clerk's office hours to accomplish can now be completed in a matter of minutes. But as felony immigration cases increase, and if Operation Streamline II is initiated in other divisions, the court will need additional employee resources to handle the increased caseload. It is expected that those resources will be forthcoming based upon the mechanisms already in place to revise and refresh the work measurement formula. Additionally, any increase in the criminal caseload will bring a need for additional official court interpreters.

Operation Streamline II has not had a significant impact on the work of the probation and pretrial services offices in the El Paso division because it has not been fully implemented there. Nevertheless, the probation office reports that a large increase in felony immigration offenses since August 2007 in the El Paso division has seriously impacted the workload of the probation officers and the support staff. The U.S. attorney's office had stated initially that the increase in felony prosecutions would last only 90 days, but the Department of Justice later decided to maintain the increased level of activity indefinitely. Before the initiative, felony prosecutions had averaged between 250 and 290 per month, but the U.S. attorney's office has informed the probation office to expect at least 400 more prosecutions per month.

f. Defender services

Operation Streamline II and other prosecution initiatives around the district have placed significant additional burdens on the Federal Public Defender and CJA panel attorneys to provide defense services in criminal cases. The federal defender office advises that it is operating above capacity. It estimates that its caseload per attorney this year will be 23% above the amount fixed in its annual budget. CJA panel appointments have also increased.

The impact on defender services varies from division to division. In Del Rio, the federal defender office is appointed to represent Operation Streamline II defendants one day per week. The rest of the cases are assigned to CJA panel attorneys. If the defender office were to be appointed five days a week, it would need several additional attorneys and support staff positions.

In El Paso, increased felony prosecutions have resulted in a larger felony caseload for the defender office. The magistrates have limited felony appointments to the federal defender office to approximately 20 a day, placing increased strain on the CJA panel. Meanwhile, the “hot zone” border enforcement initiative has significantly increased the number of misdemeanor prosecutions in the division. They are currently handled by the CJA panel attorneys. If the defender office were appointed to handle these cases, it would need additional attorneys and staff.

In San Antonio, the first months of 2008 have shown a significant increase in defender and CJA panel caseload, based in part on greater implementation of the Alien Criminal Apprehension Program. If the increased numbers are sustained over time, the defender office will need additional resources, or more cases will have to be appointed to CJA panel attorneys.

Although Operation Streamline II has not been extended to Alpine, the criminal caseload there has significantly increased, putting added strain on the federal defender office because few CJA panel attorneys reside in Alpine. Court appointments to the federal defender office for the first six months of FY 2008 have increased by approximately 28% over FY 2007 figures. If Operation Streamline II were put in place in Alpine, it would likely require that additional resources be provided to the defender office, including additional attorneys, support staff, and office space.

APPENDIX 2-CRIMINAL PROCEEDINGS IN THE DISTRICT COURTS

The Constitution guarantees important fundamental rights to persons accused of criminal offenses-the right to due process of law, to have a grand jury review the government's charges, to be represented by a lawyer, to be tried in the district where the alleged crime has been committed, to a speedy and public trial, to a trial before a jury, to confront adverse witnesses, and to be protected against unreasonable searches and seizures, excessive bail, self-incrimination, and being tried for the same crime more than once. Several federal statutes implement these constitutional rights and impose specific requirements that must be applied by the federal courts-such as the Bail Reform Act, the Criminal Justice Act, the Speedy Trial Act, and the Court Interpreter Act.

a. Felonies and misdemeanors

All these constitutional and statutory rights and procedures apply in federal felony cases. A felony is an offense punishable by death or imprisonment for a term of more than one year. Only a federal judge appointed for life under Article III of the Constitution, such as a district judge, may try a felony case or impose a sentence for conviction of a felony. But magistrate judges, who are appointed by the district courts for a term of eight years, may conduct various proceedings and pretrial proceedings in felony cases to assist the district judges. Magistrate judges may also try and impose a sentence in all misdemeanor cases.

A misdemeanor is an offense for which the maximum term of imprisonment is one year or less. It does not require a grand jury indictment and is normally initiated by information or complaint signed by the government and approved by a magistrate judge. There are three categories of misdemeanors. A Class A misdemeanor carries a maximum penalty of one year's imprisonment. A Class B misdemeanor is an offense for which the maximum term is no more than six months' imprisonment. A Class C misdemeanor carries a maximum term of 30 days' imprisonment. An infraction is an offense punishable by no more than five days' imprisonment. In several respects, Class B misdemeanors, Class C misdemeanors, and infractions-also defined collectively as petty offenses-require less extensive procedures than felony cases. Magistrate judges may preside over and dispose of all misdemeanors. The defendant's consent is needed, though, for a magistrate judge to try and dispose of a Class A misdemeanor.

Many immigration offenses and virtually all drug cases arising along the borders are charged by the U.S. attorneys as felonies. Nevertheless, simple illegal entry into the country may be charged as a Class B misdemeanor under 8 U.S.C. § 1325 and disposed of by a magistrate judge, often at a single proceeding. As noted earlier in this report, Operation Streamline II-an ongoing initiative of the Executive Branch (which started in the Del Rio Border Patrol Sector in December 2005) to deter illegal border crossings-is increasing significantly the prosecution of persons entering the country illegally by charging them with misdemeanor offenses. With an emphasis on mandatory incarceration, this initiative has all but eliminated the previous practice of “catch and release.”

The following section of the report describes the procedures required by the Constitution, federal statutes, and federal rules in all felony cases. Several of the procedures are also required in petty offense and other misdemeanor cases, although they may be abbreviated or combined in appropriate circumstances.

b. Investigation and warrants

The Fifth Amendment to the Constitution specifies that an individual may not be called upon to answer felony criminal charges nor be tried for a felony unless first indicted by a grand jury. In some cases, a grand jury investigates alleged criminal activity, returns an indictment, and the defendant is arrested. But in other cases-including most cases arising along the borders-the defendant is caught in the act of committing a criminal offense and arrested on the spot. In those cases, the defendant is first charged in a complaint filed with a magistrate judge and then held over until the criminal activity is brought to the attention of a grand jury for indictment.

The prosecution must ask a judge for a search warrant to authorize law enforcement officers to enter specified private premises to search for and seize a person or property, such as evidence of a crime, contraband, or property used in committing a crime. The government also may ask a judge to issue a warrant for the defendant's arrest. After execution, a search warrant is returned to the issuing judge with an inventory of any property seized. In the case of an arrest warrant, the U.S. Marshals Service makes the arrest and brings the accused back to the court for an initial appearance and other proceedings.

c. Initial appearance and detention hearing

Once arrested, the defendant is interviewed by one of the court's pretrial services officers. The officer also conducts an independent investigation and prepares a report for the magistrate judge who will preside over the defendant's initial appearance before the court. The pretrial services report describes the defendant's roots in the community, mental and physical health, family ties, past criminal record, and whether the defendant has a history of substance abuse.

At the initial appearance, the magistrate judge-

• advises the defendant of the charges filed by the government;

• advises the defendant of his or her constitutional rights;

• appoints counsel if the defendant cannot afford to retain an attorney;

• decides whether the defendant should be released or detained in custody; and

• sets dates for future court proceedings.

The defendant is entitled to be represented at the initial appearance and all other court proceedings by a lawyer at government expense if he or she cannot afford to retain a lawyer. In addition, a court interpreter must interpret the proceedings if the defendant does not understand the proceedings in English or has difficulty in communication with counsel or the judge. Spanish-language interpretation is required in virtually all court proceedings along the border. If the defendant is released by the court pending further proceedings, the pretrial services office must monitor and enforce the court's conditions of release.

d. Preliminary hearing

Within 10 days after the initial appearance, the defendant, if still in custody, is entitled to a preliminary hearing conducted by a magistrate judge to determine whether the evidence presented by the government is sufficient to justify continuing with the case. If the defendant has been released from custody, the preliminary hearing must be conducted within 20 days after the initial appearance. If the judge finds probable cause that the defendant has committed the crime charged, the case proceeds to the next stages. Otherwise, the charges are dismissed and the defendant is discharged from any pretrial detention or pretrial release obligations. A preliminary hearing is not required if the defendant waives it or has been indicted by the grand jury. In most federal districts a grand jury is able to indict the defendant within 10 days, making preliminary hearings unnecessary.

e. Indictment and the grand jury

A grand jury is summoned by the court in roughly the same manner as a trial jury, but is essentially under the supervision of the U.S. attorney. It will return an indictment against the defendant if convinced by the government that there is probable cause to believe that a specific federal crime has been committed and that the defendant has committed it. The indictment formally charges the defendant with committing a specific federal crime (or crimes) and that defendant must appear before a judge in open court. The court usually issues an arrest warrant or summons for the defendant's appearance based on the indictment. The U.S. attorney may issue a charging information instead of obtaining an indictment from a grand jury in a misdemeanor case, or if the defendant waives indictment.

f. Arraignment and plea

At the arraignment, the defendant is called upon to plead formally to the charges in the indictment. The proceeding must be held in open court and consists of the judge personally reading the indictment to the defendant, advising the defendant of his or her rights, and asking the defendant to enter a plea to the charges.

If the defendant pleads not guilty, the judge will adjourn the proceedings and set the time for further proceedings. On the other hand, if the defendant decides to plead guilty, the judge must conduct a thorough dialogue in open court with the defendant and the defendant's attorney. The judge must advise the defendant of the nature of the charge to which he or she is pleading, the maximum penalty (and mandatory minimum penalty, if any) provided by law for the offense, and other fundamental rights that are waived by pleading guilty. The judge must be assured that there is a factual basis for the plea and that the defendant is pleading guilty freely, voluntarily, and knowingly before accepting a guilty plea.

g. Pretrial proceedings

If the defendant pleads not guilty, the case proceeds to trial. Before the trial, however, the court will resolve various procedural and evidentiary motions by the parties, such as motions: (1) to dismiss the case because of a lack of jurisdiction or venue; (2) to dismiss the case because of defects in the indictment; (3) to suppress evidence, usually on the grounds that it has been obtained in violation of the defendant's constitutional rights; and (4) to discover evidence.

The defendant is entitled to obtain certain basic information and evidence about the case from the government. The government, in turn, is entitled to some reciprocal discovery from the defendant if the defendant seeks discovery. If a party refuses to turn over requested information, the requesting party may file a motion with the court to compel the turnover.

h. Trial and verdict

A defendant who pleads not guilty has a constitutional right to a trial before a jury. But the defendant is entitled to waive his or her right to a jury trial and choose to be tried by a judge alone. The great majority of defendants who go to trial opt for a jury trial. If found guilty, the defendant is detained in custody or released on conditions pending imposition of sentence. If found “not guilty,” the defendant is released and may not be retried for the same offense in accordance with the Double Jeopardy Clause of the Fifth Amendment.

i. Sentencing

If the defendant pleads guilty or is found guilty after a trial, the probation office must conduct a thorough presentence investigation and file a presentence investigation report to assist the judge in imposing the appropriate sentence. The report sets forth detailed facts about the defendant and victims. It discusses the nature of the offense, any aggravating or mitigating circumstances, and the defendant's characteristics and role in the offense. The report calculates the guideline ranges specified under the federal sentencing guidelines, provides other background information requested by the judge, and normally recommends a specific sentence.

The parties may object to any facts or conclusions in the report and ask the court to resolve their objections. At the sentencing hearing, the judge allows the attorneys to comment on the presentence report and any other matters relating to an appropriate sentence. Before imposing sentence, the judge must give the defendant's attorney an opportunity to speak on the defendant's behalf, address the defendant personally, allow the defendant to speak and present any information to mitigate the sentence, provide the government's attorney a chance to speak, and address victims of the crime in the courtroom and give victims a chance to speak or submit any information about the sentence.

After the judge announces the sentence orally in open court, court staff prepare the paperwork for the judge's signature, including a judgment and commitment order and the judge's statement of reasons for the sentence. The probation office later sends the paperwork and other documents from the case to the U.S. Sentencing Commission. A package of documents is also prepared for the Bureau of Prisons to help it decide where to house the defendant and to make other internal correctional decisions.

j. Other court proceedings

1. Material witness proceedings. If it appears that the testimony of a person will be material in a criminal proceeding and the person may not come to court voluntarily, a judge may order the person arrested. Material witnesses typically include individuals who have been involved with, or who have witnessed, the defendant committing a crime-even though they themselves are not charged with an offense. In immigration cases, illegal aliens are frequently held as material witnesses to testify against the person who transported them into the country.

2. Revocation proceedings. A judge may release a defendant pending trial subject to specified conditions of release. If the defendant violates a condition of release, the judge may issue a warrant-normally at the request of the pretrial services officer-and schedule a revocation hearing. If the judge determines at the hearing that the defendant has violated a condition of release, the judge may: (1) order the defendant incarcerated, (2) release the defendant with new conditions, or (3) release the defendant on the same conditions previously ordered.

Following conviction, the judge, as part of the sentence, may impose a term of probation, or, as part of a prison sentence, supervised release with conditions. If the defendant violates a condition, the probation officer or U.S. attorney may request a revocation hearing and ask for an arrest warrant or summons for the defendant's appearance. If the judge determines that the defendant has violated a condition, the judge may change the conditions of release or have the defendant incarcerated.

3. Removal proceedings. Under the Sixth Amendment to the Constitution, a person accused of a federal offense is entitled to be tried in the district in which the offense is alleged to have been committed. If the defendant is arrested in a district other than the one in which the offense has been charged, he or she must be brought without unnecessary delay before the nearest magistrate judge in the district where the arrest has been made. The magistrate judge in the arresting district conducts an initial appearance before the defendant is transferred back to the district where the offense was committed.

4. Mental competency proceedings. The government or the defendant may file a motion for a hearing to determine the mental competency of the defendant. The judge grants the motion if there is reasonable cause to believe that the defendant is mentally incompetent to understand the charges or assist in his or her defense.

5. Forfeiture proceedings. The government may ask the judge to forfeit property that is the result of criminal activity or was used to further criminal activity. If the property is subject to forfeiture, the judge enters a preliminary order of forfeiture authorizing the government to seize the property. The judge must conduct a separate proceeding if a third party claims ownership or an interest in the property. The additional proceeding is not required if the forfeiture consists of a monetary judgment.

6. Post-trial motions. The defendant may file certain motions after the trial, such as a motion for a new trial, to arrest the judgment, or to correct an error in the judgment. In addition, the government may file a motion within one year of sentencing to reduce the sentence on the grounds that the defendant has provided “substantial assistance” in investigating or prosecuting another person.

7. Appeals. The defendant has 10 days after entry of the judgment of conviction to file a notice of appeal. The government has no right to appeal an acquittal of the defendant, but it has 30 days to appeal the sentence imposed by the trial judge. The clerk of the district court must assemble and transmit the records of the case to the clerk of the court of appeals for docketing and processing in the appellate court.

8. Habeas corpus and other “collateral” proceedings. After all appeals have been exhausted and the defendant has been incarcerated, the defendant may file a motion under 28 U.S.C. § 2255 to vacate the sentence on the grounds that it was imposed in violation of the Constitution or laws of the United States, that the judge lacked jurisdiction to impose the sentence, or that the sentence was in excess of the maximum authorized by law or otherwise subject to collateral attack. If the district judge denies the motion, the defendant may take an appeal to the court of appeals.

k. Clerks' offices

1. Essential support functions. The clerk of court is the chief administrative officer of the district court and is responsible for providing support to the judges, attorneys, parties, and the public. Clerk's office staff provide a wide range of management, operational, administrative, financial, record-keeping, and information technology functions, and they supervise official court reporters and official court interpreters.

Clerk's office staff maintain the official dockets and case files in each case, send notices to the parties, set hearings, handle courtroom duties, collect and disburse funds, and respond to numerous requests for information and assistance. They coordinate closely on a daily basis with judges' chambers staff, the court's pretrial services and probation offices, the U.S. Marshals Service, the local U.S. attorney's office, defense lawyers, and many other law enforcement agency personnel.

Personnel from the clerk's office must provide courtrooms and other space in the courthouse to hold proceedings, often on very short notice. They schedule proceedings and coordinate arrangements with the U.S. Marshals Service to facilitate the movement of prisoners to and from the courthouse and the courtrooms. Deputy clerks also staff the courtroom, swear in witnesses, handle exhibits and other evidence, record the proceedings, process orders, take minute entries of court actions, and collect fines. In addition, the clerk's office documents all actions taken by the court, enters them on the court's docket, files all judgments, and sends statistical reports to the Administrative Office.

The federal courts have made enormous strides in taking advantage of technology, and they operate today in a state-of-the-art electronic environment. All district courts use the sophisticated CM/ECF case management and electronic files system. All court dockets and public court records are maintained in an electronic format, and attorneys file their papers with the court electronically over the Internet.

2. Interpretation services. By statute, the court must provide a qualified interpreter for any criminal defendant or witness who does not understand the proceedings in English or has difficulty in communicating with counsel or the judge. The great majority of criminal proceedings along the Southwest border require the presence of a Spanish-language interpreter. In some cases, however, the court may have to obtain the services of interpreters who speak other languages and dialects, or who can accommodate the needs of the hearing impaired. Hearings and trials take longer for defendants who need interpreter services. Interpreters are also needed for attorney, pretrial services, and probation interviews with defendants that occur at detention facilities and in the cellblock area before and after court.

The Director of the Administrative Office of the U.S. Courts operates a national certification program. Procurement and assignment of interpreters are handled locally by the clerk's office, and the expenses of the interpretation system are paid for directly through the appropriations of the Judiciary. Some court interpreters are full-time employees of the clerk's office while others are contractors paid on a per diem basis-certified interpreters are paid $364 for a full day and $197 for a half-day and non-certified interpreters are paid $175 per day and $94 per half-day.

3. Court reporting. By statute, all district court proceedings held in open court must be recorded verbatim. Each district court has official court reporters who are full-time employees of the Judiciary. In addition, electronic recording sound equipment, operated by a deputy clerk, is used to record misdemeanor proceedings and initial proceedings in felony cases conducted before magistrate judges.

l. Pretrial services

The pretrial services system was created by the Pretrial Services Act of 1982. The Act requires a judge to release a defendant pending trial unless he or she is a risk for flight or a danger to others or the community. It requires the court's pretrial services office to:

collect, verify, and report to the judge, before the initial appearance or detention hearing information pertaining to the pretrial release of each individual charged with an offense, including information relating to any danger that the release of such person may pose to any other person or the community, and, where appropriate, include a recommendation as to whether such individual should be released or detained and, if release is recommended, recommend appropriate conditions of release․

Pretrial services are provided either by a separate pretrial services office, as in 25 judicial districts, or by the court's probation office, as in the other 69 districts. Following the arrest of a defendant, an officer: (1) interviews the defendant; (2) conducts an independent investigation into the defendant's background; and (3) submits a report and recommendations to the magistrate judge conducting the defendant's initial appearance before the court. If the defendant is released from custody, the officer is called upon to supervise the defendant and enforce the conditions of release ordered by the judge.

In felony cases, the pretrial services officer normally provides a written pretrial services report to the magistrate judge before the initial appearance. The report-

• details the defendant's personal history, employment history, financial resources, physical health, mental health, substance abuse, and criminal history;

• assesses the risks of the defendant not appearing in court or posing a danger; and

• advises the court whether the defendant should be detained or released on conditions.

If the defendant is released before trial, the officer will supervise the defendant and monitor the conditions of release imposed by the court. If the defendant is arrested or violates a condition of release (other than a minor act of noncompliance), the officer investigates the matter and notifies the court and the U.S. attorney. The officer or the U.S. attorney may ask the judge to issue an arrest warrant or summons for the defendant and ask the court to modify the conditions of release or revoke the release.

m. Probation offices

Once a defendant has been found guilty-either on a guilty plea or conviction at a trial-the court's probation office enters the process. A probation officer will conduct a thorough presentence investigation of the convicted defendant and submit a comprehensive report to the judge who will impose the sentence. The officer interviews the defendant and contacts the defendant's attorney early in the investigation. The officer also investigates the defendant's marital status and family, physical condition, mental and emotional health, substance abuse history, education, vocational and special skills, employment, financial condition, and ability to pay a fine or restitution. The officer gathers information about the defendant's criminal history, including convictions, juvenile adjudications, arrests, and pending cases. The officer speaks with law enforcement agents and examines the files of the prosecutor, case agents, and the pretrial services officer. The officer may also ask the probation office in another district to conduct a collateral investigation to assist in providing and verifying information for inclusion in the report. In addition, the officer interviews family members, co-defendants, and victims, and sometimes interviews witnesses to the crime.

The presentence report is a critical legal document that provides accurate and objective information for the court to rely upon at sentencing. It focuses on: (1) providing relevant personal information about the defendant; and (2) applying and calculating the federal sentencing guidelines as they may relate to the defendant and the offense. It addresses-

• the defendant's offenses, including a victim impact statement,

• the defendant's criminal history;

• the defendant's personal characteristics, financial condition, and ability to pay;

• available sentencing options; and

• factors that may warrant a departure from the prescribed sentencing guideline or a sentence outside the guidelines.

As part of the sentence, the court may impose a term of probation, or, as part of a prison sentence, supervised release following incarceration. In those cases, the probation office must supervise the defendant and monitor all conditions of release imposed by the court. Post-conviction supervision is similar to pretrial supervision, but the presumption of the defendant's innocence applicable before conviction, of course, does not apply.

n. Defender services

A defendant in a criminal case is entitled to be represented by an attorney at all court appearances. If the defendant cannot afford an attorney, the court must appoint one at government expense, using funds appropriated in the defender services account of the Judiciary's appropriations. The appointed attorney may be-

• a federal public defender-a full-time employee of the Judiciary;

• a community defender-an attorney employed by an organization awarded a grant by the Judiciary to provide counsel services; or

• a private attorney on the court's panel of qualified attorneys willing and able to represent criminal defendants in the court.

The appointment is made as soon as possible after the defendant is arrested or charged, normally at or before the defendant's initial appearance. Determining eligibility for representation under the Criminal Justice Act is a judicial function performed by a judge after reviewing the defendant's financial affidavit and inquiring as to the defendant's financial condition. In most cases arising along the border, the appointed lawyer must speak Spanish or engage an interpreter.

Except in death penalty cases, the rate of compensation for a panel attorney is currently $100 per hour for time spent in court or out of court. The panel attorney may be reimbursed for actual expenses, such as travel, but not for general office overhead. In addition, expert and other necessary services may be obtained with court approval and paid for with defender services funds. The appointment of counsel applies not only at the trial level, but also continues through an appeal, if any.

APPENDIX 3-CASELOAD STATISTICS

a. Criminal cases filed

Criminal case filings in the five judicial districts along the Southwest border-and in the nation as a whole-have been increasing since the mid-1990s. They grew at a much faster pace (172%) in the border district courts-the District of Arizona, the Southern District of California, the District of New Mexico, and the Southern and Western Districts of Texas-than in the non-border courts (20%). Following explosive growth in the 1990s, case filings have stabilized in the last several years, although there are fluctuations from year to year and from district to district. The following two tables set forth the number of criminal defendants charged in the five border district courts, the non-border courts, and the nation as a whole. The cases include only those assigned to district judges, almost all of which are felonies.

Table 1. Defendants Charged in the District Courts

Table 2. Defendants Charged in the Border District Courts

Two categories of crimes dominate the caseload along the Southwest border-drugs and immigration. Together, they accounted for more than 82% of the offenses charged (other than petty offenses) in 2007, compared to about 43% of the caseload in the non-border districts. The following table sets forth the nature of the charges filed against defendants in the fiscal year 2007 nationally and in the five border courts.

Table 3. Offenses Charged in 2007 (Excludes Transferred Defendants)

b. Drug cases

Drug cases are a major component of the criminal caseload of each of the border courts. Virtually all drug cases are charged as serious felonies that entail long jail terms. They involve the manufacture, import, sale, distribution, or possession of various illegal substances. Many cases, moreover, involve drug rings and smuggling enterprises. Drug conspiracy cases, especially, are among the most complex and difficult cases in the criminal justice system, absorbing a great deal of judicial time, pretrial services and probation effort, clerk's office staff support, and defender resources.

Drug prosecutions rose sharply in the 1990s, both nationally and in the border courts, but have declined slightly in the last two years. There are sizeable fluctuations among districts based on the charging policies, priorities, and resources of individual U.S. attorneys. Filings have decreased in three of the five border courts, but increased in the other two. The following table sets forth the number of defendants charged with drug offenses in 1994 and in the last five years.

Table 4. Defendants Charged With Drug Offenses (Excludes Transferred Defendants)

c. Immigration cases

Immigration offenses are charged as felonies if they involve illegal reentry into the country after deportation, bringing aliens into the country illegally (i.e., smuggling), transporting or harboring undocumented immigrants, or fraudulent use of immigration documents. Illegal immigrants with prior criminal records are also more likely to be charged with felonies. Operation Streamline II also includes felony reentry charges matched with a misdemeanor charge of illegal entry without inspection. In a single hearing, defendants may plead guilty to the petty offense with a stipulated sentence, and the felony reentry charges will be dismissed. Felony cases must be heard and sentenced by district judges, but magistrate judges conduct various initial proceedings in the cases. The following table sets forth the number of defendants charged with immigration offenses other than misdemeanor offenses.

Table 5. Defendants Charged With Immigration Offenses (Excludes Transferred Defendants)

d. Misdemeanor immigration cases

Operation Streamline II is predicated on the government filing large numbers of immigration violations as Class B misdemeanors under 8 U.S.C. § 1325 for entering the country at a time or place other than authorized, eluding examination or inspection by immigration officers, or attempting to enter by misrepresentation or concealment of facts. The cases may be heard and disposed of by magistrate judges, and in some districts along the border the government may bring many defendants before the court at the same time for group processing.

Table 6. Misdemeanor Immigration Defendants Disposed of by Magistrate Judges

e. Magistrate judge proceedings in felony cases

Magistrate judges are also responsible for handling most of the preliminary proceedings in the felony criminal cases disposed of by district judges. Their work in felony cases is reflected in the following table.

Table 7. Proceedings Conducted by Magistrate Judges in Felony Cases

The next table identifies the types of preliminary proceedings conducted by magistrate judges in felony cases.

Table 8. Types of Proceedings Conducted by Magistrate Judges in Felony Cases in 2007

f. Pretrial services and probation caseload

Pretrial services and probation officers devote a great deal of staff time to interviewing defendants, investigating their backgrounds, writing reports and recommendations for the judges, supervising defendants who have been released, and monitoring the conditions of release imposed on them by the courts. Their work is described in greater detail on pages 46-47.

The number of pretrial services investigations undertaken in the border districts, virtually all in felony cases, is shown in the following table.

Table 9. Pretrial Services Cases Activated

The number of presentence investigations undertaken and reports submitted by the probation offices in the border districts, virtually all in felony cases, is shown in the following table.

Table 10. Presentence Investigations and Reports by Probation Offices

g. Criminal Justice Act attorney appointments

Lawyers are appointed under the Criminal Justice Act for all defendants facing the possibility of a jail term if they cannot afford to retain their own attorney. Illegal aliens charged with misdemeanors and facing jail terms, as well as felony defendants, are entitled to appointment of an attorney under the Act if they cannot afford their own attorney. Appointments of both federal defenders and private panel attorneys have increased greatly in the last few years, particularly because of the increase in misdemeanor immigration cases in some border districts.

Table 11. Criminal Justice Act Attorney Appointments in Immigration Cases

h. Court interpretation services

The volume of court interpreting services required declined nationally in 2006, but rose by 12% in 2007. In the border districts, the increase from 2006 to 2007 was 15%. From 2003 to 2007, the increase in the need for interpreting services has been 33%. The number of events requiring a court interpreter is shown in the following table.

Table 12. Total Events Requiring Court Interpretation

i. Border Patrol agents and felony immigration filings

There has been a mathematical relationship between the increase in Border Patrol personnel and the growth in the number of felony immigration cases filed in the border districts.

Table 13. Border Patrol Agents and Felony Immigration Cases Filed-1992 to 2008

TAB E

FOR IMMEDIATE RELEASE

Friday, June 25, 2010

Office of the United States Attorney District of Arizona

Public Affairs

WYN HORNBUCKLE

Telephone: (602) 514-7573

Cell: (602) 740-2422

United States Attorney

District of ArizonaBorder Security Fact SheetJune 2010

PHOENIX-The United States Attorney's Office for the District of Arizona has a strong history of responding to border-related criminal activity. Recent increases in this office's resources have contributed to significant public safety successes against the drug cartels and criminal enterprises that take advantage of Arizona's highway infrastructure and desert terrain to bring drugs and illegal aliens into the United States and to move money and weapons out of the United States.

• 99% increase in drug filings since 2008

• 91% increase in drug defendants since 2008

• Approx 3,200 felony and 22,000 misdemeanor illegal immigration cases filed in fiscal year 2009

• Bulk currency exportation cases up 236% in Fiscal Year 2010 compared to a year ago, involving over $3 million

• 50% increase in federal wiretaps

District Summary

• The United States Attorney's Office (USAO) for the District of Arizona has experienced a dramatic increase in resources to investigate and prosecute border-related crimes. Presently we have 152 Assistant United States Attorneys (AUSAs) on board after having added 42 positions since 2006. The number of AUSA positions in the District of Arizona has increased by 62% in the past 10 years.

• The increase in resources followed a dramatic increase in the number of U.S. Border Patrol and other federal law enforcement agents in Arizona since 1995. The Border Patrol employs over 60 percent of the more than 6,400 federal law enforcement agents in Arizona.

• The USAO works closely with its federal law enforcement partners to police the border through the use of reactive drug and immigration prosecutions while at the same time confronting the criminal organizations operating on both sides of the U.S.-Mexico border. Although Arizona's 389-mile border with Mexico largely defines the district's caseload, the caseload is as diverse as the many communities in Arizona. The USAO handles cases ranging from firearms trafficking to fraud relating to tribal gaming, and from bank robberies to theft of artifacts, protected plants, wildlife and cultural resources, as well as violent crime in Indian Country and mortgage fraud.

Robust and Innovative Immigration Enforcement

• The USAO prosecutes sophisticated alien smuggling organizations. In April, the USAO unveiled indictments in Operation In Plain Sight, a case that was more than two years in the making. The operation resulted in 47 criminal arrests, the execution of roughly 30 search warrants, and the seizure of over 50 vehicles. The investigation targeted every level of a cross-border human smuggling organization that used the guise of lawful shuttle transportation companies to move illegal aliens into the U.S. The investigation also revealed unprecedented cooperation between U.S. and Mexican law enforcement against alien smuggling organizations. One of the lead targets in the case, Claudio Ramirez-Morales, was arrested by Mexican law enforcement officials as part of the investigation and faces prosecution in Mexico as a result.

• The USAO maximizes resources by providing criminal consequences to a wider range of offenders through innovative charging and plea strategies. The USAO filed nearly 3,200 felony immigration cases in fiscal year 2009, and over 22,000 misdemeanor cases. Of the 3,200 felony immigration cases, 2,272 were re-entry after removal cases under Title 8 of the United States Code, Section 1326. This represents a substantial increase over fiscal year 2008, largely as a result of the increase in resources the USAO received in 2008. The district's year-to-date felony immigration filings for FY 2010 have increased more than 13 percent over the same period in FY 2009.

• The USAO's Impostor Initiative is aimed at individuals who attempt to enter the country through a port of entry using a false identity document. Working closely with U.S. Customs and Border Protection's Office of Field Operations (CBP-OFO), the USAO implemented an early disposition program that enabled it to prosecute over 1,000 of these cases in calendar year 2009, with defendants serving at least 60 days in custody for presenting phony identification documents. The district is on pace to increase that number by 20 percent in FY 2010.

Continued Emphasis on All Facets of Drug Trafficking Enforcement

• The District of Arizona has no threshold quantity for drug trafficking cases. The USAO prosecutes a heavy caseload of both reactive and long-term, complex drug investigations and prosecutions. The USAO increased drug case filings by 482 (an increase of 99%) and drug defendants by 724 (an increase of 91%) from FY 2008 to FY 2009. Thus far in FY 2010 we have filed 1,107 drug cases.

• Carlos Ramon Castro-Rocha, a Consolidated Priority Organization Target (CPOT), was arrested in Mexico and is awaiting extradition to the United States to face charges brought in Arizona and North Carolina as part of Project Deliverance, a nationwide drug enforcement action. CPOT designation is reserved for command and control level drug traffickers and money launderers responsible for the importation of large quantities of narcotics into the United States. The arrest of Castro-Rocha is an example of the Department of Justice's deepening cooperation with the Republic of Mexico. The indictment alleges Castro-Rocha conspired to import heroin from Mexico and distribute it within the United States. The Castro-Rocha Drug Trafficking Organization (DTO) used vehicles with hidden compartments to transport the heroin to locations outside the Phoenix area. Agents seized over 45 pounds of black-tar heroin that is directly attributable to Castro-Rocha.

• Vekol Valley Operations. In two recent operations, agents and officers seized over 11,100 pounds of marijuana, over 4 pounds of methamphetamine, 10 firearms and 31 vehicles, and made 350 arrests for criminal and immigration violations in the Vekol Valley region off Interstate 8 southwest of Phoenix. The USAO worked with ICE, Border Patrol, DEA, the Bureau of Land Management, the Arizona Department of Public Safety, the Arizona National Guard, the Gila River Indian Community Police Department, and the Pinal and Maricopa County Sheriffs and County Attorneys to gather intelligence and interdict armed scouts and backpackers smuggling marijuana and other drugs through the area.

• The USAO worked in close coordination with numerous federal, state, and local law enforcement partners to dismantle a Mexican drug trafficking organization believed responsible for moving at least 40,000 pounds of marijuana through southern Arizona. The organization employed advanced counter-surveillance, ramp trucks to overcome vehicle barriers at the border, and hidden vehicle compartments. Operation Vaqueros, unveiled in April 2010, involved the use of federal wiretaps, which revealed an employee of the Cochise County Attorney's office was providing confidential information to one of the drug traffickers in exchange for money. Twenty-six people were indicted on federal charges and another thirteen were indicted on state charges.

Aggressive Response to Violent Crime Related to Drug Trafficking and Alien Smuggling

• The USAO aggressively prosecutes hijacking, hostage-taking and home invasion cases relating to alien smuggling and drug trafficking. Working with the U.S. Immigration and Customs Enforcement office of Homeland Security Investigations (ICE-HSI), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the Arizona Department of Public Safety's Illegal Immigration Prevention & Apprehension Co-op Team (IIMPACT), the Phoenix Police Department's Home Invasion and Kidnapping Enforcement (HIKE) squad, the Maricopa County Attorney's office, and the Arizona Attorney General's office, AUSAs work to rescue victims, to track down and prosecute those who hold smuggled aliens hostage, and to arrest and prosecute people who perpetrate drug-related home invasions. Below are examples of cases prosecuted within the past year.

• Carlos Alvarez-Espinoza was convicted following a jury trial and sentenced to 137 years in prison. The government proved Alvarez-Espinoza was responsible for holding at least 23 illegal aliens hostage at gunpoint in a house in Phoenix. Some victims were beaten and pistol whipped and all were threatened with death.

• The District of Arizona was the first USAO to use the Hobbs Act (armed robbery in interstate commerce) to respond to hijacking in the alien smuggling context. Adriel Laurel-Vasquez pleaded guilty and was sentenced to prison in connection with the armed hijacking of a group of illegal aliens from a rival alien smuggling organization.

• Working with the USAO, an ATF-led home invasion task force identified and arrested eight home invasion crews as they prepared to commit armed robberies of drug stash houses in Phoenix. Forty-eight defendants were arrested and charged with various drug and firearms offenses.

• Over twenty defendants entered guilty pleas and are awaiting sentencing.

• Six defendants were convicted at trial and are awaiting sentencing.

• Most convicted defendants face at least fifteen years in prison, with potential sentences ranging as high as life.

Vigorous Firearms Trafficking Enforcement

• The USAO pursues firearms trafficking cases. In April 2010, six defendants were sentenced after they pleaded guilty to conspiracy to smuggle semi-automatic assault rifles to Mexico. The lead defendant drove young people with no criminal histories to a firearms dealer, told them what guns to buy, and provided the purchase money. The lead defendant then paid the straw buyers and took the weapons, removed the serial numbers, zip-tied them to the undercarriage of a car, and drove them to Mexico.

• In a similar case in December 2008, ATF agents arrested ten individuals involved in a conspiracy to straw purchase firearms in Arizona for the purpose of supplying them to the Sinaloa cartel. The group exported approximately 120 firearms, predominantly assault rifles, including a .50 caliber rifle, into Mexico. Of the handguns exported, the majority were weapons of choice of the Mexican drug cartels. ATF identified the Sinaloa cartel member who headed the conspiracy, Ruben Javier Elense Ruiz, aka “Rambo,” and provided his fingerprints to the FBI. The FBI matched “Rambo's” fingerprints to prints connected to the murder of a Mexican federal prosecutor in 2004. In March 2009, Rambo and several other cartel members were arrested in Mexico. Ail ten of the individuals arrested and indicted in the United States have entered guilty pleas. Six of the defendants have been sentenced to prison terms. Three defendants, including two of the leaders in the conspiracy, are pending sentencing.

Cutting the Flow of Money to the Cartels

• Together with CBP-OFO, the USAO maintains a robust currency exportation prosecution program. Thus far in Fiscal Year 2010, bulk currency exportation cases are up by 236% compared to the same time period in Fiscal Year 2009, with 37 cases involving a total of $3,053,502.

• Seizure Warrants issued in the District of Arizona this year already exceed those issued last year by 21 percent. These seizure warrants deny criminal enterprises their profit and working capital by seizing currency, bank accounts, vehicles, and other property. At this rate, the USAO is on track to more than double the number of seizure warrants issued last year.

Cooperative Partnerships With Mexican Law Enforcement

• The USAO has worked with the ICE-HSI and CBP-OFO to implement the Controlled Substance Project (CSP), under which some drug cases from the Nogales Port of Entry are referred to the Mexican government for prosecution. Thus far, 27 defendants have been prosecuted under Mexican law. To date, four cases have been tried in the Mexican court system. Each defendant was convicted and received a sentence of 10 years in prison.

• Building on the groundbreaking CSP program, Arizona U.S. Attorney Dennis Burke recently met with his Sonoran counterpart, the Delegate from Mexico's Procuraduria General de la Republica (PGR). Building on that outreach, the USAO created the first-ever Rule of Law unit consisting of eight Spanish speaking AUSAs from the District of Arizona. The AUSAs will assist in providing oral trial training to PGR attorneys as Mexico pursues its transition from an inquisitorial to a more accusatorial criminal system. As part of the Merida Initiative, the USAO is working with the Department's Overseas Prosecutorial Assistance and Training program to provide regional training designed to strengthen working relationships with the PGR in Sonora as they take courageous steps to prosecute drug traffickers and human smugglers under Mexican law. The USAO also will provide training in specific areas such as drug trafficking, money laundering, and trafficking in persons and firearms.

Tab F

House Judiciary Committee

Subcommittee on Courts and Policy

Testimony re Evo A. DeConcini

U.S. Courthouse in Tucson division

Hearing on September 29, 2010

Hon. John M. Roll

Chief Judge, U.S. District Court

District of Arizona

Thank you for the opportunity to submit written testimony regarding the Evo A. DeConcini U.S. Courthouse in Tucson, Arizona. I regret being unable to present my testimony in person but the final selection process for the Yuma federal courthouse architect and contractor is being conducted in San Francisco September 28-29, 2010 and I am to participate in that process in my capacity as chief judge for the District of Arizona.

Background re U.S. District Court, Tucson division

The District of Arizona is a single district, divided into 2 divisions-Phoenix division and Tucson division. Tucson division's courthouse is in Tucson.

The process for obtaining a new federal courthouse for Tucson division began in 1990. The new federal courthouse-the Evo A. DeConcini U.S. Courthouse, was completed in 2000. The DeConcini Courthouse was designed to meet the needs of the District Court in Tucson, as best could be anticipated. My testimony discusses the need for a new courthouse in 1990, adaptation to the new courthouse in 2000, and the fact that more courthouse space is desperately needed in 2010.

Southwest border districts

Any discussion regarding courthouse space needs in the Tucson division would be incomplete without a brief summary of the demands placed upon the court family in the Evo A. DeConcini U.S. Courthouse as a result of southwest border enforcement.

The District of Arizona is 1 of the 5 southwest border districts, the others being the Southern District of California, the District of New Mexico, the Western District of Texas, and the Southern District of Texas. Although the southwest border districts are only 5 of the 94 districts in the nation, these 5 districts heard 40% of the nation's criminal cases in FY-2009. (2009 Annual Report of the Director, Administrative Office of the United States Courts (“2009 Director's Report”), pp. 201-203.)

The 5 southwest border districts ranked 1st through 5th of the nation's 94 districts in criminal caseload in FY-2009. (2009 Director's Report, pp. 201-206).

The 5 southwest border districts had 73% of the nation's criminal immigration case filings in FY-2009. (2009 Director's Report, pp. 228-232). These crimes include alien smuggling and illegal reentry after deportation subsequent to a felony conviction.

District of Arizona criminal caseload-district court

Today, the District of Arizona has the highest criminal caseload in the Ninth Circuit and the 3rd highest criminal caseload in the nation. (2009 Director's Report, pp. 201-203).

In FY-2009 and through August in FY-2010, Tucson division has had 62% of the District of Arizona's felony case filings.

Through August in FY-2010, felony case filings in Tucson division have increased by nearly 25 over FY-2009. (CM/ECF September 2010 District of Arizona Report).

District of Arizona petty and misdemeanor offense caseload-magistrate judges

In FY-2009, District of Arizona magistrate judges heard 20,952 petty offense cases,(2009 Director's Report, pp. 356-58; October 2009 CM/ECF District of Arizona Report). This represented the 2nd highest number of petty offense cases in the nation. (Id.)

More than 16,000 of the District of Arizona's petty offenses in FY-2009 were heard in Tucson division as part of Border Patrol's Operation Streamline program. Operation Streamline, also referred to as Arizona Denial Prosecution Initiative, is a prosecution initiative in which petty and misdemeanor offenders arrested by Border Patrol are arraigned, plead guilty, and are sentenced in a single day. Presently in Tucson division, 70 Operation Streamline defendants are sentenced each work day.

Proposals to double (32,000 petty offense and misdemeanor cases) or triple (48,000 petty offense and misdemeanor cases) the annual number of Operation Streamline cases in Tucson division have recently been discussed in Congress.

1990-Walsh Courthouse, Court annex, and La Placita office space

Judges

In 1990, Tucson division had 3 active district judges and no senior district judges. It also had 2 magistrate judges.

District Court divided between 3 locations

The District Court was housed in 2 buildings connected by a walkway that extended over Broadway Boulevard in downtown Tucson.

The court facility on the north side of the walkway was the Walsh Courthouse. It included courtrooms and chambers for 1 district judge and 2 magistrate judges, a courtroom for video-taped depositions, a grand jury room, a chambers for a Ninth Circuit judge, the U.S. Marshals Office, and the court library.

The court facility on the south side of the walkway was a court annex which was leased space. It included a parking lot on the ground floor, courtrooms and chambers for 2 district judges, and the clerk's office.

The walkway connecting the 2 court buildings extended over one of Tucson's busiest streets. The walkway was used to shuttle prisoners between courtrooms and was utilized by judges and court staff, sometimes at the same time. It was a security nightmare.

La Placita office space in La Placita Village, approximately 1 city block from the court annex, housed the bankruptcy court's judge's chambers, courtroom and clerk's office, as well as the U.S. Attorney's Office.

Caseload in 1990

Filings in calendar year 1990 in Tucson division were as follows:

818 civil cases,

667 felony cases, and

383 petty offense cases.

(1990 U.S. District Court for the District of Arizona Annual Report, pp. 18, 39).

2000-Evo A. DeConcini U.S. Courthouse

In 2000, the new federal courthouse in Tucson-the Evo A. DeConcini U.S. Courthouse-was ready for occupancy.

Planned occupancy

Plans called for the new courthouse to include space for all district, magistrate and bankruptcy judges, the clerk's office, the U.S. Marshals Service, probation department, pretrial services department, and the U.S. Attorney's Office. The design called for one wing of the courthouse to be used for the bankruptcy court and the larger wing to be used for all other district court matters.

Revised occupancy plans

Before the move was made, it was clear that insufficient space existed in the new courthouse to house the Bankruptcy Court because by 2000, the District Court in Tucson had 4 magistrate judges, having added 2 magistrate judges to the 2 magistrate judge positions in existence in 1990. Accordingly, Bankruptcy Court stayed in the La Placita office space. The bankruptcy wing did not have security safeguards for prisoner movement built into the plan.

Judges

By 2000, a total of 5 district judges and 4 magistrate judges moved to the DeConcini Courthouse. Before the 2000 move, all 3 of the active district judges sitting on the court in 1990 had assumed senior status and 3 new district judges were appointed to replace them. Of the 3 senior district judges, 2 of the 3 senior district judges moved to the new courthouse while 1 senior district judge died unexpectedly before the move occurred.

In addition, as planned, the Probation Office, Pretrial Services Office, U.S. Marshals Office, and the U.S. Attorney's Office all moved into the DeConcini Courthouse.

Caseload in 2000

Filings in calendar year 2000 in Tucson division were as follows:

715 civil cases,

1,827 felony cases, and

1,564 petty offense cases.

(2000 U.S. District Court for the District of Arizona Annual Report, pp. v, vii, xi).

2010-Current space situation in DeConcini Courthouse

All available space is fully-utilized in the DeConcini Courthouse.

Judges

Since 2000, number of active district judges has increased by 2. Presently, 5 district judges have courtrooms and chambers in the DeConcini Courthouse, including 4 active district judges and District Judge Frank R. Zapata, who assumed senior status last month. A new active district judge is in the process of being appointed at the present time, which will result in 5 active district judges and 1 senior district judge having courtrooms and chambers in the DeConcini Courthouse.

Because 3 new magistrate judge positions have been added in Tucson division, 7 magistrate judges now have chambers and courtrooms in the DeConcini Courthouse.

As soon as Judge Zapata's replacement is named, the DeConcini Courthouse will have 13 judges.

Visiting judges are used liberally in the District of Arizona in order to cope with the criminal caseload, which is among the highest of the 94 districts. Since November 2009, Tucson division has used 10 visiting district judges for terms of service of 1-3 weeks. These district judges conducted over 750 hearings during more than 80 days in court.

In addition, on July 1, 2010, the Subcommittee on Judicial Statistics of the Committee on Judicial Resources, in conjunction with the 2011 Biennial Judgeship Survey, preliminarily recommended that the District of Arizona receive 5 additional district judgeships. In light of the fact that the District of Arizona ranks 1st in the Ninth Circuit in criminal caseload and 3rd in the nation, should a judgeship bill be passed by Congress in 2011, at least 2 new district judgeships would be assigned to Tucson division.

Caseload in 2010

Filings for the first 8 months of calendar year 2010 in Tucson division were as follows:

524 civil cases,

2,660 felony cases, and

15,253 petty offense cases.

In the first 8 months of calendar year 2010, Tucson division petty offense cases have totaled 15,253 and misdemeanor dispositions have totaled 2,070. (CM/ECF District of Arizona September 2010 Report). In the entire nation in FY-2009, magistrate judges heard 109,132 petty offense cases and 8,700 class A misdemeanor cases. (2009 Director's Report, pp. 350-53, 356-58).

Current space situation

There is no space in the DeConcini Courthouse for expansion.

Because the Special Proceedings Courtroom has necessarily been dedicated full-time to Operation Streamline and the 16,000 plus cases heard each year in Tucson in connection with that program, the Courthouse no longer has a special proceedings courtroom. Accordingly, for example, Naturalization services are now held in the jury assembly room, when that jury is not being utilized for jurors. Initial appearances and arraignments of felony defendants require the use of one of the district judge courtrooms.

If the number of Operation Streamline cases are doubled (to 32,000 cases per year) or tripled (to 48,000 cases per year), additional magistrate judges, courtrooms and chambers will be necessary.

Presently, because of the enormous criminal case increase, the workload measurement formula for district clerks offices supports the addition of 20 positions in FY-2011 for the Clerk's Office. Even with the 20 new positions recently funded, the Probation Office is understaffed by approximately 38 positions. In Tucson, the significant current and projected growth in the Pretrial Services Office has led to a necessary space expansion project estimated to cost $850,482.37. Although workload gains during the past year have resulted in an increase of 20 staff members, the current workload supports the hiring of an additional 17 Pretrial Services staff.

Recently, the U.S. Marshals Service was required to find additional office space out of the DeConcini Courthouse as was the Probation Office.

No one familiar with the actual situation in Tucson could reasonably conclude that the DeConcini Courthouse was overbuilt in 2000 or that the Courthouse has any extra available space. In fact, there is a constant search for tenants who will leave the premises in order to free up additional space.

Courtroom sharing

Tucson division's enormous felony caseload and what will likely be the nation's highest petty offense and misdemeanor caseloads in FY-2010, as evidenced by the U.S. Marshals Service annual production of 50,000 detainees for court in the DeConcini Courthouse effectively rules out any notion that courtroom sharing is a good fit for a southwest border district court.

Conclusion

No one familiar with the actual situation in Tucson could reasonably suggest that the DeConcini Courthouse was overbuilt in 2000 or that the Courthouse has excess space. In fact, there is a constant search for tenants who will leave the Courthouse in order to free up additional space.

I am attaching to my testimony my response to the recent GAO report on federal courthouse construction. I strongly disagree with many of the conclusions reached in the report, particularly as to the claims of unused space and the practicality of courtroom sharing. My letter refers to the GAO draft report, but the final report made no significant changes.

Thank you for the privilege of submitting this written testimony on this crucial topic.

Tab G

GABRIELLE GIFFORDS

8TH DISTRICT, ARIZONA

WASHINGTON OFFICE:

1728 LONGWORTH HOUSE OFFICE BUILDING

WASHINGTON, DC 20515

(202) 225-2542

DISTRICT OFFICES

TUCSON OFFICE

1661 NORTH SWAN, SUITE 112

TUCSON, AZ 85712

(520) 881-3588

COCHISE COUNTY OFFICE

77 CALLE PORTAL, SUITE B-160

SIERRA VISTA, AZ 85635

(520) 459-3115

Congress of the United States

House of RepresentativesWashington, DC 20515-0308www.gifford.house.govFebruary 7, 2010

COMMITTEE:

ARMED SERVICES

SUBCOMMITTEE ON AIR AND LAND FORCES

SUBCOMMITTEE ON MILITARY READINESS

SCIENCE AND TECHNOLOGY

CHAIR, SUBCOMMITTEE ON SPACE AND AERONAUTICS

SUBCOMMITTEE ON ENERGY AND ENVIRONMENT

FOREIGN AFFAIRS

SUBCOMMITTEE ON THE WESTERN HEMISPHERE

The Honorable Hall Rogers

Chairman

Committee on Appropriations

U.S. House of Representatives

Washington, D.C. 20515

The Honorable Jo Ann Emerson

Chairman

Subcommittee on Financial Service and General Government

Committee on Appropriations

U.S. House of Representatives

Washington, D.C. 20515

The Honorable Norman Dicks

Ranking Member

Committee on Appropriations

U.S. House of Representatives

Washington, D.C. 20515

The Honorable Jose Serrano

Ranking Member

Subcommittee on Financial Service and General Government

Committee on Appropriations

U.S. House of Representatives

Washington, D.C. 20515

Dear Chairman Rogers, Ranking Member Dicks, Chairman Emerson, Ranking Member Serrano:

As your committee develops appropriations legislation for fiscal year 2011, I respectfully request that you draft language directing the General Services Administration to work with the Evo A. DeConcini U.S. Courthouse in Tucson, Arizona to allow courthouse tenants to lease auxiliary office space. This additional space is critical to the Tucson District Court's ability to effectively handle the cases in its jurisdiction.

As you may know, Congresswoman Gabrielle Giffords has worked diligently in Congress to augment the capacity of Arizona's federal court system, which has been congested with record caseloads and mounting backlogs largely as a result of the crisis at the U.S.-Mexico border. In FY2009, Arizona ranked first in the Ninth Circuit and third in the nation for criminal case filings. In FY2010 alone, the District saw a 21 percent increase in felony and defendant case filings, with nearly two-thirds of these criminal cases filed in the Tucson division. As a result, the active judges in the Tucson division have each been assigned over 900 felony defendant cases.

In December 2010, Congresswoman Giffords sent a letter to the Ninth Circuit Court in support of a judicial emergency declaration in the District of Arizona. The judicial emergency was granted on January 21, 2011, allowing our federal courts in Arizona the much-needed additional time to prosecute their growing number of felony cases.

In addition to being overworked and understaffed, the Tucson division is simply unequipped with the space and resources needed to keep pace with escalating workloads. The daily stream of hundreds of criminal cases heard in the DeConcini Courthouse, with statutes and rules mandating prompt attention for each case, demands additional courtroom space. At present, every courtroom, including the Special Proceedings Courtroom, is used each day. Due to the caseload increases, the Tucson division has been forced to utilize out-of-district judges for more than 550 court proceedings in the last year. These visiting judges require courtroom space in addition to that required by the active and magistrate judges.

Due to the insufficient space in the DeConcini Courthouse, the Probation Department and the U.S. Marshals Service have already moved personnel to off-site locations to make room for courtroom proceedings and supplementary detention facilities. Currently, plans call for the U.S. Attorney's Office to also leave the Courthouse to create additional space. However, the U.S. Attorney's Office and other personnel of the Tucson division have faced repeated obstacles in obtaining the necessary approval from the General Services Administration for this purpose.

It is clear that the DeConcini U.S. Courthouse in Tucson is in desperate need of additional space. That is why our office supports the efforts of the Courthouse personnel to lease readily available nearby off-site locations as a timely, economical, and commonsense solution to current office space constraints, and ensure that the Tucson Courthouse continues to provide swift justice to all. We hope that you will do everything possible to ensure that the needs of federal criminal justice system are met.

Thank you for your consideration of this request. If you require further information about this important issue, please contact me at 202-225-2542.

Sincerely.

/s/Pia Carusone

Pia Carusone

Chief of Staff to Congresswoman Giffords

TAB H

COMMITTEE ON JUDICIAL RESOURCESof theJUDICIAL CONFERENCE OF THE UNITED STATES

HONORABLE GEORGE Z. SINGAL, CHAIR

HONORABLE LYNN S. ADELMAN

HONORABLE LINDA R. ANDERSON

HONORABLE TIMOTHY BURGESS

HONORABLE ERIC L. CLAY

HONORABLE HENRY F. FLOYD

HONORABLE NICHOLAS G. GARAUFIS

HONORABLE COLLEEN KOLLAR-KOTELLY

HONORABLE HALDANE ROBERT MAYER

HONORABLE ANN D. MONTGOMERY

HONORABLE WILLIAM H. PRYOR, JR.

HONORABLE XAVIER RODRIGUEZ

HONORABLE DALE L. SOMERS

HONORABLE LAWRENCE F. STENGEL

CHAIR, JUDICIAL STATISTICS SUBCOMMITTEE

HONORABLE TIMOTHY M. TYMKOVICH

January 10, 2011

MEMORANDUM

To: Honorable Alex Kozinski

Honorable Roslyn O. Silver

From: Honorable George Z. Singal /s/

Chair, Committee on Judicial Resources

Honorable Lawrence F. Stengel /s/

Chair, Subcommittee on Judicial Statistics

RE: 2011 Biennial Judgeship Survey Final Recommendation

The Subcommittee on Judicial Statistics has completed its 2011 Biennial Survey of Judgeship Needs. The Subcommittee's recommendations were based on the standards previously provided (see Attachment 1) and updated caseload statistics from the Administrative Office. The Subcommittee also took into account the circuit judicial council's recommendation and any additional information provided by the court and the judicial council.

At its December 2010 meeting, the Committee on Judicial Resources adopted the Subcommittee's recommendations. The final recommendations will be submitted to the Judicial Conference at its March 2011 meeting so that requests can be included in judgeship legislation transmitted to Congress after the March meeting. The Committee's recommendation for the District of Arizona is provided at Attachment 2.

If you have any questions about the attached materials, the details of the Subcommittee's procedures for recommending additional judgeships, or the schedule for Judicial Conference action, please contact Patrick Walker, Chief of the Judgeship Analysis Staff, Article III Judges Division, at (202) 502-1496 or Michele E. Reed, Deputy Chief of the Article III Judges Division, at (202) 502-1919.

Attachments

cc: Cathy Catterson

Richard H. Weare

Attachment 1

PROCEDURES AND STANDARDS USED BY THE SUBCOMMITTEE ON JUDICIAL STATISTICS IN THE 2011 SURVEY OF JUDGESHIP NEEDS

DISTRICT COURTS

A. For courts submitting requests for additional judgeships, a majority of the active members of the court had to approve the submission of the request; no recommendations for additional judgeships were made without a request from a majority of the active members of the court.

B. Each court requesting additional judgeships was asked to provide a complete justification for the request. In any instance in which a court's request could not be supported through the standard noted below, the court was requested to provide an explanation of what factors should be considered in lieu of or in addition to the caseload standard.

C. The Subcommittee used a level of weighted filings in excess of 430 per judgeship with an additional judgeship as a starting point for considering requests. For small courts, typically those with fewer than five authorized judgeships, the addition of a judgeship would often reduce the caseload per judgeship substantially below the 430 level. Thus, for small courts the 430 per judgeship standard was replaced with a standard of current weighted filings above 500 per judgeship. These caseload levels were used only as a guideline and not used to determine the number of additional judgeships to recommend. The Subcommittee used weighted filings based on the district court case weights adopted in June 2004 in evaluating the courts' judgeship requests.

D. The Subcommittee reviewed the caseload of the individual courts to determine if there were any factors present to create a temporary situation that would not provide justification for additional judgeships. The Subcommittee also considered any factors in the caseload that would make the situation unique and provide support either for or against a recommendation for additional judgeships.

E. The Subcommittee followed the September 1999 recommendations of the Judicial Officers Resources Working Group to “include, in the future evaluation of judgeship needs, careful scrutiny of the requesting court's use of visiting judges and other strategies for handling judicial workload.” This included a careful review of each court's use of senior judges, magistrate judges, and alternative dispute resolution.

F. The Subcommittee recommended temporary judgeships in all situations where the caseload level justifying additional judgeships occurred only in the most recent years, or when the addition of a judgeship would place a court's caseload close to the guideline of 430 weighted filings per judgeship. Also, when recommending five or more judgeships for a particular court, the Subcommittee recommended at least one of the additional judgeships as a temporary position. In some instances the Subcommittee also considered the pending caseload per judgeship as an additional factor supporting a temporary judgeship.

G. The Subcommittee reviewed all requests in detail, including those which the Judicial Conference approved in 2009. In some situations the Subcommittee did not recommend judgeships which had been approved by the Conference at an earlier date.

Attachment 2

CASELOAD PROFILE

COURT PROFILE

YEAR ENDED JUNE

Current Authorized Judgeships: 12 Permanent & 1 Temporary-Will lapse with first vacancy after July 8, 2013

Senior Judges Authorized for Staff: 7

Current Authorized Magistrate Judge Positions: 13 Full-Time & 1 Part-Time

2009 Judicial Conference Judgeship Recommendation:

1 Additional Permanent, 1 Additional Temporary, and Convert Temporary to Permanent

Previous Conference Recommendations Since 1990 Judgeship Bill:

2007-4 Additional Permanent, 1 Additional Temporary, and Convert Temporary to Permanent

2005-4 Additional Permanent & 1 Additional Temporary

2003-3 Additional Permanent

2000-1 Additional Permanent & 4 Additional Temporary

Revised to 4 Additional Temporary-February 2001

1999-3 Additional Permanent & 3 Additional Temporary

Revised to 3 Additional Temporary-February 2000

1997-2 Additional Permanent

1994-2 Additional Permanent

1992-1 Additional Temporary

Last Judgeship(s) Created:

1 Additional Temporary-July 2003

1 Additional Permanent-December 2000

3 Additional Permanent-November 1999

FINAL RECOMMENDATION

Court Request 5P, T/P

Preliminary Subcommittee Recommendation 4P, 1T, T/P

Judicial Council Recommendation 4P, 1T, T/P

Final Subcommittee Recommendation 4P, 1T, T/P

Judicial Council Recommendation

The Judicial Council of the Ninth Circuit agreed with the Subcommittee's recommendation for four additional permanent judgeships, one additional temporary judgeship, and conversion of the existing temporary judgeship to permanent. The Subcommittee based its recommendation on the high level of weighted filings and its policy to recommend at least a portion of additional judgeships as temporary when recommending large numbers of additional judgeships.

Additional Court Comments

Additional comments were not provided.

Changes in Caseload and Judicial Officer Resources Since September 2009

Between September 2009 and June 2010, overall filings rose eight percent due primarily to a 17 percent increase in criminal felony filings. The growth in criminal cases filed resulted from a 21 percent rise in immigration filings and a 14 percent increase in drug prosecutions. The criminal caseload is the 4th highest nationwide at 386 per judgeship. Civil filings rose two percent as increases in foreclosure actions and personal injury product liability filings offset a decline in state prisoner petitions.

Terminations rose 12 percent and remain well above the national average at 717 per judgeship. The pending caseload increased two percent, but remains well below the national average at 458 per judgeship. The number of completed trials increased seven percent, but remains below the national average at 17 per judgeship. One judge took senior status in August 2010 and, as a result, there is now one judgeship vacancy and seven senior judges.

Final Subcommittee Recommendation

Weighted filings increased seven percent between September 2009 and June 2010 and currently stand at 653 per judgeship, the 6th highest total in the nation. Conversion of the existing temporary position to a permanent judgeship is clearly warranted as weighted filings would rise to 707 per judgeship with the lapse of that judgeship which could occur as early as 2013.

Four additional judgeships would reduce weighted filings to 499 per judgeship and a fifth additional judgeship would lower weighted filings to 472 per judgeship, 10 percent above the Conference standard. The Subcommittee believes that the extremely high criminal caseload and the growth in weighted filings since the preliminary phase of the survey continue to support recommending five additional judgeships, with at least one of the judgeships as temporary in accordance with its policy when recommending five or more additional judgeships. Therefore, the Subcommittee continues to recommend four additional permanent judgeships, one additional temporary judgeship, and that the existing temporary judgeship be converted to a permanent position for the District of Arizona.

FINAL JUDGESHIP RECOMMENDATION 4P, 1T, T/P

PRELIMINARY RECOMMENDATION

Judgeship Request 5P, T/P

Request

The Judicial Conference recommended at least two additional judgeships for the District of Arizona in each survey since 1994. In the 2009 survey, the Judicial Conference recommended one additional permanent judgeship, one additional temporary judgeship, and conversion of the temporary judgeship authorized in 2003 to permanent status. In the current survey, the court is requesting five permanent judgeships and conversion of the temporary judgeship to a permanent position. The temporary judgeship will lapse with the first vacancy after July 8, 2013. The court noted that aggressive Southwest border enforcement practices have contributed to the high weighted caseload levels and identified several other factors in support of its request: the district has the highest percentage of land owned by the federal government in the nation, the presence of complex pending death penalty cases, and a population growth in the state that is among the fastest in the nation.

Caseload

Overall filings decreased 18 percent from 2005 through 2008, due to declines in both civil and criminal felony filings. The reduction in the civil caseload was due predominantly to a 48 percent decrease in state prisoner petitions, most of which involved prison conditions. During that same period, criminal felony filings declined 21 percent as the number of drug cases fell by nearly half and immigration prosecutions fell 13 percent. The court attributed the decline to staffing shortages in the U.S. Attorney's Office. Despite the decline, criminal filings totaled 226 per judgeship in 2008, far exceeding the national average.

Since 2008, overall filings have increased 18 percent due almost entirely to growth in criminal filings. The criminal caseload has risen 46 percent as the number of drug prosecutions more than doubled and immigration cases increased nearly 50 percent. Criminal felony filings constitute 46 percent of the overall caseload, more than twice the national average of 18 percent. The criminal caseload is the 5th highest in the nation and is more than three times the national average at 328 per judgeship. Civil filings have remained relatively stable, rising one percent overall, as increases in private contract litigation, tort actions, civil rights cases, and Fair Debt Collection Practices Act cases have been nearly offset by decreases in prisoner petitions and real property cases. Because of the heavy criminal caseload, the number of supervised release hearings per judgeship is the 4th highest nationwide.

The pending caseload fell 25 percent between 2005 and 2008, but consistent with the increase in filings, has since increased 14 percent. Despite the recent increase, the pending caseload is below the national average at 447 per judgeship. The number of completed trials has remained relatively stable, and is below the national average at 16 per judgeship. The median time from filing to disposition for both civil and criminal cases has decreased steadily since 2007. The criminal median time is two months below the national average while the civil median time is nearly one month below the national average. Despite declining by more than two months since 2005, the median time from filing to trial for civil cases is nearly four months above the national average.

Judicial Officer Resources

The court has 13 authorized judgeships, including the temporary position authorized in 2003, and no vacancies. There are six senior judges, although the court indicated that only three routinely take cases. Five of the senior judges are 75 or older, including three of whom are in their eighties. The senior judges provided the equivalent of one active judge in 2009, based on the average caseload of the district's active judges. Given the ages of the senior judges, the court anticipates that they will scale back their level of participation in the near future. Five judges will become eligible to take senior status over the next two years: one in 2010, two in 2011, and two in 2012.

The 13 full-time magistrate judges are assigned 25 percent of new civil filings, handling all matters in these cases if the parties consent. The magistrate judges routinely handle Class B misdemeanor and alien illegal reentry cases, habeas corpus petitions and prisoner civil rights cases, and virtually all felony guilty plea proceedings. In addition, the Tucson magistrate judges handle all pretrial duties in civil cases assigned to them in which the parties do not consent, and the Phoenix magistrate judges frequently handle such duties. The Tucson magistrate judges handle all felony matters except trials and sentencings and the Phoenix magistrate judges are occasionally referred pretrial duties in felony cases. In 2009, a total of 145 civil cases were closed by magistrate judges with the consent of the parties.

Other Factors

The court indicated that six visiting judges handled both civil and criminal cases during 2009. The court noted that, with so many visiting judges, scheduling, space accommodations, and a lack of support staff are becoming time-consuming challenges. No active judges provided assistance to other courts in 2009. The court also advised that it no longer uses a voluntary arbitration program for ADR, and believes that the efforts to support the ADR program far outweighed its benefits.

Recommendation

Reversing a decline that began in 2005, weighted filings have increased 25 percent since 2008 and currently stand at 609 per judgeship, 27 percent above the national average and the 8th highest total nationwide. The court receives substantial assistance from magistrate judges and visiting judges. However, the assistance provided by the current senior judges is minimal. Conversion of the existing temporary position to a permanent judgeship is needed as weighted filings would rise to 660 per judgeship with the lapse of that judgeship which could occur as early as 2013.

The court also requested five additional permanent judgeships. Two additional judgeships would reduce weighted filings to 528 per judgeship and a third judgeship would reduce weighted filings to 495 per judgeship. The addition of a fourth and fifth judgeship would reduce weighted filings to 466 and 440 per judgeship, respectively. Given that the current weighted caseload once again exceeds 600 per judgeship, how quickly the weighted caseload has rebounded from the decline that occurred between 2005 and 2008, and the other factors identified by the court, the Subcommittee believes the caseload is sufficient to recommend five additional judgeships. However, when recommending five or more judgeships, the Subcommittee's policy is to recommend at least one of the additional judgeships as temporary. Therefore, the Subcommittee recommends four additional permanent judgeships, one additional temporary judgeship, and that the existing temporary judgeship be converted to a permanent position for the District of Arizona.

TAB I

Congress of the United StatesWashington, DC 20515December 21, 2010

The Honorable Alex Kozinski

Chief Judge

United States Court of Appeals

Richard H. Chambers Court of Appeals Building

125 South Grand Avenue, Room 200

Pasadena, CA 91105-1621

Dear Chief Judge Kozinski:

We write to encourage the Judicial Council of the Ninth Court to declare a judicial emergency in the District of Arizona. Such a declaration would potentially extend the time in which felony defendants can be brought to trial from 70 days to 180 days after arrangement.

The District of Arizona is simply overworked and understaffed. Our courts are congested with an all-time high felony caseload, mounting backlogs, and the workload continues to grow.

In FY2009, Arizona had the eighth highest weighted and the third highest unweighted caseload in the nation. Arizona ranked first in the Ninth Circuit and third in the nation for criminal case filings. In FY2010 alone, the District saw a 21 percent increase in felony and defendant case filings. The four active judges in the Tucson division have each been assigned approximately 900 felony defendant cases, and the Phoenix division has been forced to utilize out-of-district judges to endure their increasing caseload.

Much of the District's caseload is a direct result of the crisis at the U.S.-Mexico border. Our region is the nation's largest and most porous sector of the U.S.-Mexico border. More drugs are seized and more illegal immigrants are apprehended in the Tucson sector than anywhere else in the country. In FY2010, Border Patrol agents apprehended over 200,000 people and seized over 1 million pounds of marijuana. Judicial resources in the District of Arizona are simply unable to keep pace with this escalating crisis at the border.

With the unanimous support of the district judges, we urge you to declare a judicial emergency and extend the time limit in the District of Arizona. Our justice system is at risk. We cannot afford to grow our backlog any further. We thank you for your consideration of this request.

Sincerely,

/s/Gabrielle Giffords

Gabrielle Giffords

Member of Congress

/s/Ed Pastor

Ed Pastor

Member of Congress

TAB J

Materials Addressed to Mikva BillPrepared Statement of Representative Abner J. Mikva, 1971 Senate Hearings 130

Nevertheless, it may well be that even if all the judges in a given circuit were putting in a full week's work on the bench, and even if the most modern, efficient administrative techniques were employed, we would still find that the available resources are inadequate to achieve the goal of speedy and fair trials.

In this event, Section 3164 allows for a postponement of the speedy trial requirements of Section 3161. The Attorney General* is required to submit legislation to Congress providing the needed additional resources. This places the burden back where it belongs-on the shoulders of Congress. It will then be up to the representatives of the taxpayers of America to decide whether we are serious enough about crime prevention to expend the money and effort necessary to obtain it. In other words, the buck will stop here.

Letter to Representative Mikva from Judge Walter E. Hoffman, Aug. 25, 1970, at 1971 Senate Hearings 173

Under section 3164(b), it is believed that this constitutes an invitation to many district courts for additional judges, prosecutors, probation officers, etc. While-there is a need for same in certain areas, the main problem has been lack of organization and the inclination on the part of some judges to let the criminal docket be handled by the United States Attorney.

Materials Addressed to Original Ervin Bill

Testimony of Senator Philip A. Hart, 1971 Senate Hearings 20-21

S. 895 ultimately requires all district courts to try offenders within 60 days of arrest or indictment, whichever is earlier; there are, of course, provisions for extension in special circumstances which are strictly limited to specified instances, as when the judge makes an express finding that an extension is required in the interests of justice. However, the bill also recognizes that some districts may simply lack the resources to implement a 60-day deadline now, therefore, a district court may request deferral of its plan to meet the time limits, if it submits an inventory of these resources necessary to comply.

This flexibility is good. If speedy trial deadlines are imposed too quickly, the quality of justice will suffer; we cannot cure the problems of a fouled assembly line by speeding up the conveyor belt. But we may be able to take an interim step toward the final goal.

Subsequent to the introduction of this bill's predecessor S. 3936, in the 91st Congress, the Judicial Council of the Second Circuit Court of Appeals issued its own trial deadlines. These rules require district courts in that circuit to try all defendants within 6 months. And all incarcerated defendants must be tried within 3 months, or released until trial. The Second Circuit's rules do not provide,* as does S. 895, for tolling of these deadlines in specific exigent circumstances. But unlike 8. 895, the Second Circuit's time limits are not subject to deferral on the general ground of inadequate resources to implement them.

In other words, Mr. Chairman, after canvassing the bar and bench within its jurisdiction that court of appeals has concluded that its trial courts, including the Southern District of New York, one of the busiest in the Nation, can reasonably be asked to end trial delay of more than 6 months at the present time.

This suggests the possibility of imposing a similar requirement on all district courts in S. 895. In such a revised form, S. 895 would still require trial within 60 days, unless the district court obtains an extension because of presently inadequate judicial resources. But in any event, the court would be required to reduce delay to a maximum of 6 months, within their existing resources. The feasibility of this addition to the bill should be studied in these hearings.

Prepared Statement of Daniel A. Rezneck, 1971 Senate Hearings 36

[W]e also believe that Sections 3164(b) and (e), dealing with district courts unable to implement their speedy trial plans because of limitations of manpower and resources, should be strengthened. A limit, perhaps 90 days, should be placed on the period for which any such plan may be suspended or its effectiveness deferred. Crash programs involving allocation of outside judges will have to be undertaken with respect to such districts. But without a limit, the implementation of the speedy trial plan in a district might be indefinitely delayed, and the Act could become merely precatory.

Testimony of Judge Albert Lee Stephens, Jr., 1971 Senate Hearings 74

S. 895 would serve to straighten out the question of priorities. It might even be better if it were more plainly stated that criminal cases have the first priority and that all others follow. In this respect, some judgment, of course, must be exercised because the ends of justice would be defeated if insignificant criminal cases should be allowed to occupy the time of courts while important civil cases wait.

Testimony of Daniel J. Freed, 1971 Senate Hearings 141

I think that the position of the Department of Justice about this being a bill that might hinder the prosecution would be accurate if the bill in fact met the description given in the opening part of Assistant Attorney General Rehnquist's testimony today. I believe he said that there is mandatory dismissal with prejudice, that the bill has inflexible limits and that it goes into effect right away. But that is not an accurate description. As a matter of fact, that is the major respect in which this bill differs from all speedy trial legislation that has been enacted in this country. No time limits would be imposed on the prosecution by this bill until the prosecutor as well as the defense and the court have had an opportunity to ascertain, and the Judicial Conference of the United States and the Congress have a chance to review, whether or not the objectives of the criminal law could be realized by this legislation. Therefore, the time limits here will become effective only when the district in which the limit is operative says “we are ready to accomplish the objectives of the criminal law in our district either under your bill, or with the new procedures we have proposed, or if you give us the resources that we have designated.”

Testimony of Daniel J. Freed, 1971 Senate Hearings 142

Senator Ervin. Now, that bill has a provision which makes it as certain as words can make it that the bill will not take effect until it has been very accurately determined that a particular district has the facilities and the manpower to make the bill effective. Is that not true?

Mr. Freed. That is true, Mr. Chairman. The one amendment which I proposed to modify that would make it clear that the Department of Justice, as well as the defense bar will not lose their separate voices in stating to the Judicial Conference and the Congress that they disagree with a court's determination that the system is ready to go on a speedy timetable. If the Department of Justice can make a case for delay because it has inadequate resources, then the Congress will be able to listen to that case.

Senator Ervin. In other words, your amendment [to the planning provisions] would ensure that other segments of society, such as the prosecution, the defense, and the general public would have a voice in that determination?

Mr. Freed: I agree, Mr. Chairman.

Statement Submitted for the Record by Senator John G. Tower, 1971 Senate Hearings 157

My one reservation about the proposed method is that it will allow some jurisdictions which are not currently able to provide the speed which we would like, to avoid affording this right for an indefinite period. I would hope that we could extract from the Congress during floor consideration of the measure a pledge that the recommendations from the various districts as to what they require to afford the right to a trial within sixty days of the bringing of the indictment would be acted upon with all possible dispatch, I feel certain that you would join in this request and would help to see that it would be fulfilled.

Amendments Offered by Senator Strom Thurmond, 117 Cong, Rec. 34142 (Sept. 30, 1971)

On page 3, after line 22, insert the following:

“(3) Any period of delay resulting from congestion of the trial docket when the congestion is attributable to exceptional circumstances.”.

Remarks of Senator Strom Thurmond, 117 Cong. Rec. 34141 (Sept. 30, 1971)

This new exclusion does not attempt to excuse delays arising out of chronic congestion, but is designed to accommodate delays caused by certain unique, nonrecurring events such as riots or other mass public disorders.

“Department of Justice Proposed Amendments to Title I of S. 895,” Appendix to Letter to Senator Ervin from Assistant Attorney General William H. Rehnquist, Oct. 19, 1971, at 1971 Senate Hearings 263

[§ 3166](e) In the event that a district court with respect to which sections 3161 through 3164 have become effective is subsequently unable to meet the time limitations prescribed by section 3161, the chief judge of such district may seek and the Judicial Conference may grant suspension of such limitations. Within six months of such suspension, the district court shall submit a new plan to the Judicial Conference of the United States, and the procedures of subsections (b) and (d) of this section shall be followed.

Explanation of Proposed Amendments in Letter to Senator Ervin from Assistant Attorney General William H. Rehnquist, Oct. 19, 1971, at 1971 Senate Hearings 260

It is absolutely essential that a district court be able to request an extension of the effective date of the time limits. Similarly, we agree that it is desirable that at any time after the time limits have become effective, the chief judge of a district may seek a suspension of the time limits based on the inability of the court to meet them.

Letter to Senator Ervin from Judge Allen E. Barrow, Oct, 14, 1970, at 1971 Senate Hearings 160

The only improvement that I could suggest to the provisions of Section 3164(b) would be that the District Courts be given the privilege of submitting their suggestions and plans directly to Congress. However, I am aware that this would be considered too cumbersome and, therefore, not feasible.

Materials Addressed to 1972 Senate Subcommittee Bill

1972 Draft Senate Committee Report, at 1973 Senate Hearings 57

The whole District plans section has been altered considerably from the provision as it appeared in S. 895 as introduced. For example the original provision permitted extensions of time for a district to prepare for the imposition of the 60-day time limits and allowing [sic ] for a suspension of section 3163, the sanctions provision, if a district was unable to comply with the provision.* The committee dropped both the extension and the exemption provision because of testimony before the Subcommittee on Constitutional Rights that these provisions would be used as a loophole by some districts to avoid application of the time limits. In the place of the extension and suspension provisions the committee adopted section 3164 on interim limits and section 3161(b)(1)(B) which delays the imposition of the 60-day time limits until 3 years after enactment. Furthermore any unforeseen emergency which might call for a suspension of the speedy trial time limits would certainly fall within the “ends of justice” continuance provision, 3161(c)(8).

Materials Addressed to 1974 Senate Committee Bill

Prepared Statement of Rowland F. Kirks, Director, Administrative Office of the U.S. Courts, 1974 House Hearings 179-80

A provision granting regulatory authority to the Judicial Conference over the provisions and operation of speedy trial plans, particularly with respect to emergency situations such as the death, resignation, or illness of judges, would appear desirable. The bill, as we read it, contains no provision respecting such emergencies.

Testimony of Earl Silbert, Member, Advisory Committee of U.S. Attorneys, 1974 House Hearings 218

I would assume your committee would be willing to include language in the statute that if the Congress at any time fails to supply the resources which have been determined to be necessary, for whatever reason the Congress may have, that the time limits imposed by this bill, which is predicated upon the providing of those resources, would become inoperative. I would assume you would be willing to do that?

Mr. Conyers. I think we would have to consider that, but I don't think there would be any assumption that that would flow automatically. It did not over the 3 years the Senate subcommittee studied this, and it is not in the language now. They studied it really far longer than we will ever have an opportunity to, if it is the judgment of the Judiciary Committee to pass this within the 93d session of Congress.

Mr. Silbert. But, sir, if the whole assumption is that the backlog is attributable to insufficient resources and this will help, will give an impetus to the Congress to provide those resources to comply with the time limits, then it would be only reasonable, we would submit, if the Congress for whatever reasons it deems appropriate does not provide those resources that are deemed to be necessary, that these time limits not become operative.

Prepared Statement of Judge Alfonso J. Zirpoli, Chairman, Judicial Conference Committee on the Administration of the Criminal Law, 1974 House Hearings 370-71

Also, we would add a new provision, § 3161(h)(9), allowing an exception in any situation where the Judicial Conference of the United States or a committee thereof declares that a judicial emergency exists occasioned by the death or incapacity of a judge or the occurrence of such an emergency in the division or district as to make a prompt trial impossible.

“Miscellaneous Amendments,” Enclosure to Letter to Representative Conyers from Rowland F. Kirks, Director, Administrative Office of the U.S. Courts, Oct. 1, 1974, at 1974 House Hearings 756

The following amendment to section 3161(h) was proposed to establish an additional ground for excluding time:

Page 8, line 10.* After this line insert the following: “(9) Any delay resulting from an emergency situation, such as the illness or absence of the judge from the place of trial, or a vacancy in judicial office.”

Materials Addressed to 1574 House Subcommittee Bill

Letter to Representative Peter W. Rodino, Jr., from Rowland F. Kirks, Director, Administrative Office of the U.S. Courts, Nov. 8, 1974, at 1974 House Committee Report 53

These provisions which concern the action to be taken in the event of a judicial emergency when time limits cannot be met are unduly complicated. Subsection (c) in particular should be deleted. It is cumbersome and wasteful of judicial time.

In subsection (a), in the first sentence, the words, “where the existing resources are being efficiently utilized,” should be deleted. This is clearly to be a judgment made by both the judicial council and then the Judicial Conference and seems a meaningless addition to the initial step in the proceedings.

Materials Addressed to 1974 House Committee Bill

1974 House Committee Report 9

The basic differences between H.R. 17409 and S. 754 are as follows:

1. Judicial Emergency.-A number of witnesses, particularly the Justice Department and the Administrative Office of the United States Courts, contended that if the Congress fails to provide the necessary funds to make speedy trial a reality or if a particular district is beset by an unforeseeable occurrence which would make compliance with the time limits impossible, the unwarranted dismissal of cases could result. The Subcommittee drafted an amendment to authorize the Judicial Conference of the United States to suspend the time limits between indictment and trial for up to a period of one year in the event of a judicial emergency.

2. Phase-In.-H.R. 17409 provides that both the sanctions and the ultimate time limits of the bill become effective in the fifth year after enactment; S. 754 provides that they become effective in the seventh year. Because of the adoption of the judicial emergency provision, the Subcommittee felt that the phase-in period could be reduced without endangering the objectives of the bill.

1974 House Committee Report 26

To abrogate the possibility that at some time in the future, after the eventual time limits of 30 and 60 days and the dismissal sanction have become effective, courts will be forced to dismiss cases because they are unable due to reasons totally beyond their control to meet those time limits, the bill incorporates a judicial emergency section. The Judicial Conference is permitted under the emergency provision to suspend the operation of the time limits between indictment and trial in individual districts for up to one year. If it finds upon reviewing the district's application that no efficient use of the district's existing resources will enable it to meet the requirements of the legislation, the conference may grant a suspension. The effect of the suspension is to allow a district found deserving of such relief to increase the indictment to trial time during the period of suspension up to 180 days. Although the Conference may not grant more than one suspension per judicial district, it may make application to the Congress for an additional suspension within six months of the end of a current suspension period and, if Congress fails to act on such an application, an additional suspension period would begin, as to that district, immediately upon the expiration of the previous one.

The application procedure that the courts must follow is designed to mesh administratively with the planning and reporting provisions of the bill and is in accord with existing statutes. The chief judge of the district, after soliciting the written views and recommendations of the planning group and the judges within the district, files an application for suspension with the judicial council of the circuit. If the council finds no alternate remedy for the district's problem upon review of its application, it may recommend a suspension to the Conference, which may then grant one for a period not to exceed one year. Within 10 days, the Director of the Administrative Office must file a report with the Congress, which must notice the granting of the application for suspension and include the recommendations of the planning group and any judge or judges of the district, together with additional or dissenting views. The Congress would then be able to determine what additional resources might be required to allow the district to meet the requirements of this legislation, using that data as a basis for action.

1974 House Committee Report 39

This authority [of the Judicial Conference to direct that district speedy trial plans be modified] is granted to the Judicial Conference in connection with its authority to suspend the time limits between indictment to trial as provided by section 3174. The authority granted by this provision would permit the Conference to recommend changes in district plans when, in its judgment, such changes would enhance the district's ability to process criminal cases. This provision should not be invoked in order to enforce uniformity or national standards in district plans for the purpose of administrative convenience.

1974 House Committee Report 42-44

Section 3174 provides that in the event a district court is unable to comply with the time limits contained in section 3161(c), concerning the period between indictment and trial, the Judicial Conference is authorized to suspend these time limits for a period up to one year. A provision recognizing the possibility of a judicial emergency in a district is not contained in S. 754. The Subcommittee drafted this amendment at the behest of the Justice Department, the Administrative Office, and other witnesses. They claimed that, in the event the Congress fails to appropriate the necessary funds to carry out the mandate for speedy trials, or unforeseeable events occur which jeopardize the operations of the courts, Section 3162 of bill [sic ]-providing for dismissal of the indictment or information for failure to meet the time limits-would free potential criminals and backlog calendars with reindictments. Although the Committee was sympathetic to this argument, a number of safeguards contained in the Senate bill would make this contingency unlikely. The judicial emergency provision was adopted because the Committee did not wish to leave the possibility of unjustifiable dismissals to chance. Also, the Committee believes that the incorporation of this provision more than justifies the reduction of S. 754's phase-in period from seven to five years and the adoption of the sanction of dismissal with prejudice, which would prohibit reprosecution of a defendant as is permitted in that bill upon a showing of exceptional circumstances.

A suspension may be granted only on a district-by-district basis; the Judicial Conference may not suspend time limits either on a nationwide or circuit-wide basis. In order to qualify for suspension, the district court, under the direction of the chief judge, is required to evaluate the status of its court calendars to determine the nature and extent of the emergency and whether existing resources are being efficiently utilized.

The chief judge is required to seek the recommendations of the district's planning group prior to applying to the judicial council of the circuit for a suspension. A reasonable period of time, under the particular circumstances of the district, should be allowed before an application for a suspension is filed in order to give the planning group an opportunity to respond.

The recommendations of the planning group should be in writing and must set forth compelling reasons why a suspension should either be requested or not requested. The recommendations submitted to the district court should contain the additional or dissenting views of any member of the planning group with respect to the advisability of recommending an application for a suspension of time limits, although they are not binding upon the district court.

The recommendations of the planning group need not be elaborate, but should contain enough information to justify an application by the chief judge for a time suspension. The Committee recognizes the need for speed in certain situations, particularly when a district is meeting the time limits and an unforeseeable event occurs which would require a speedy application to the judicial council for a suspension. In this event, the need for an immediate response to the problem may not justify the filing of written recommendations. However, the recommendations should be reduced to writing as soon as possible and filed with the district court for submission to the judicial council of the circuit and, if necessary, to the Judicial Conference. All recommendations concerning suspensions made by a planning group either before or following the filing of the application by the district court must be sent to the Congress as part of the report required by section 3167.

The chief judge should also seek the recommendations of the judges of his district. As in the procedure for seeking the recommendations of the planning group, the chief judge should undertake to provide enough time for the receipt of views and those views, whether favoring or opposing a suspension, should be made a part of the district application for a suspension to the judicial council of the circuit.

Based upon the information and statistics contained in the application of the district court, the judicial council of the circuit is required to determine the capabilities of the district and to make any appropriate recommendations that would alleviate calendar congestion, particularly the use of visiting judges. If the judicial council finds that no remedy for congestion is reasonably available, it may apply to the Judicial Conference for a suspension of the indictment to trial time limits. The Conference, after a review of the request, is authorized to grant a suspension of the time limits for a period not to exceed one year. The effect of this provision is to allow each district to increase up to 180 days the indictment to trial time limit during the period of suspension. For example, if a district is in the fifth year of operation under the bill, it may increase the indictment to trial time limit from 70 to 180 days. The Committee believes that any district court which successfully meets the time standards in the first four years should be in a position in the ensuing years to perform at least as well as it did in the previous years. With respect to increasing the time limits between indictment and trial, following the approval by the Judicial Conference of a suspension, the district court in its discretion may extend the time limits beyond the existing time limits, so long as a defendant is not required to await the commencement of trial for a period of not to exceed [sic ] 180 days.

The Committee exempted from the judicial emergency provision the extension of the indictment to trial time limits during a suspension for individuals who are being detained solely because they are awaiting trial. Also, the judicial emergency provision does not apply to defendants who were indicted prior to the effective date of a suspension.

In order to insure that the Congress is informed of all suspensions of time limits granted by the Judicial Conference, the Director of the Administrative Office is required to submit a report to the Congress within 10 days of the granting of any suspension. The report should contain the recommendations of the planning group and any judge or judges of the district, together with the additional or dissenting views of any of the foregoing. This is to insure that the Congress will maintain effective oversight over the granting of suspensions. The authority to grant suspensions is a serious matter and should not result in an unequal application of the law for certain individuals, merely because their indictment happened to be filed at a time when the court was experiencing a judicial emergency. The Congress, in imposing specific time limits on the period between indictment and trial, has made a legislative decision that defendants are entitled under the Constitution to a trial within 70 days of indictment and that the courts are capable of providing trials within that period of time. However, because of the unique circumstance in which the Congress has placed the courts by enacting speedy trial legislation without providing advanced [sic ] increases in resources, it is also providing the courts with a tool that would permit them enough flexibility to prevent a miscarriage of justice by dismissing the indictments or informations against potential criminals because of circumstances beyond the control of an individual court.

The Judicial Conference has the authority under H.R. 17409 to grant only one suspension in any given district. If the Conference finds that a district requires another suspension within less than six months following the end of a previous suspension, an application for the additional suspension must be made to the Congress. The Congress has six months in which to act; if it fails to act, the suspension would become effective immediately upon the expiration of the six-month period. In the event that, during any period of suspension, if [sic ] the Director of the Administrative Office finds that any additional relief time is necessary, he may apply directly to the Congress for the suspension. For example, should it be apparent at any time prior to the filing of the Director's report, detailing the reasons for the first suspension, that an additional period is necessary, he could submit an application as part of this report. In this event, the six-month period in which the Congress has to act upon an application would be measured during the time of the existing suspension and, therefore, would not result in hardship to the district. This provision is not intended as a security blanket, and applications for additional suspensions should not be filed as a matter of course. Each report to Congress must contain detailed reasons for granting both the initial suspension and the need for an additional one. Any additional suspension occasioned by the inaction of the Congress will not exceed one year.

Remarks of Representative Cohen, 1974 House Floor Debate, 120 Cong. Rec. 41775

The second basic difference between the Senate and House bills is the presence in H.R. 17409 of the “judicial emergency” section. During the hearings a number of witnesses expressed the fear that if Congress failed to appropriate the necessary resources to effectively implement the standards of this act, the wholesale dismissals would result, not by reason of the courts' inefficiency, but because of congressional inaction. Fears were also expressed that unforeseen circumstances such as a riot or the death of one or more district judges, could cause an unmanageable backlog, in the criminal docket of a particular district. To provide relief for such situations, the Subcommittee on Crime included a provision in the bill which would allow the Judicial Conference of the United States to suspend the operation of this act for periods up to one year in the event of a “judicial emergency.”

Materials Addressed to 1974 House Floor Amendments

Remarks of Representative Cohen, 1974 House Floor Debate, 120 Cong. Rec. 41788-89

The floor amendment to this section was one of a series of amendments described as “technical and conforming” amendments, which were offered by Representative Cohen and considered and adopted en bloc. There was no explanation or discussion of the amendment to this section.

FOOTNOTES

FOOTNOTE.  So in original. The bill required the Judicial Conference to submit the legislation.

FOOTNOTE.  So in original. Probably should be “do provide.”

FOOTNOTE.  So in original. Not an accurate description of S. 895.

FOOTNOTE.  So in original. Probably should refer to line 2.

PER CURIAM.