THIRDNewsletter

of the

Federal

Courts

Vol. 40

Number 8

August 2008BRANCH

INSIDE

THE

Senate Appropriations Committee Acts ....................................................................................................... pg. 42008 Director’s Awards Recipients Named ................................................................................................... pg. 6Celebrate Constitution Day! ............................................................................................................................ pg. 9

See Interview on page 10 See Community on page 4

See Savings on page 2

I N T E R V I E W

An “Interesting Time” for Criminal Law IssuesJudge Julie E. Carnes, a district court judge in the Northern District of Georgia, was appointed to the federal bench in 1992. She has been a member of the Judicial Conference Committee on Criminal Law since 2005, and has served as its chair since 2007.

Q: You participated in a National Sentencing

Policy Institute held in Long Beach, California in June. What is the purpose of these meetings and who participates?

A:National Sentencing Policy Institutes are bien-

nial meetings of federal judges, prosecutors, defense attorneys, and probation officers. These meetings feature panel discus-sions and presentations on current sentencing issues. The Criminal Law Committee works closely with the Federal Judicial Center (FJC), the U.S. Sentencing Commission, and the Bureau of

A Changed Judiciary Still Needs to Save Over five years ago, the federal

Judiciary looked into the future and saw its rent projected to top $1.2 billion by 2009. That and other “must pay” requirements would consume 72 percent of the budget and create a $1.4 billion shortfall between avail-able funding and requirements. Massive layoffs of staff seemed inevi-table. Something had to be done to address this problem. Chief Justice William F. Rehnquist asked the Judi-cial Conference Executive Committee and its chair, Chief Judge Carolyn King, to coordinate an effort to contain costs in the Judiciary.

“If we had continued unchanged,” said Judge Julia Gibbons, chair of the Judicial Conference Budget Committee, “we would have seen drastic reductions in service to liti-gants and the public.”

Building Bridges: The Restorative Side of Community Service Conditions

In the Ocala National Forest, north of Orlando, Florida, a group of 30 men and women are building trails and park shelters as part of a community service retreat. For a week, they’ll live in dorms, cook their meals in common, and invest lots of sweat equity on projects. At the end of the week, part of the group

Instead, the Judiciary initi-ated a comprehensive strategy that included sweeping cost- containment measures.

“As a result our current funding situation is—for the moment—adequate to meet our needs,” said Gibbons.

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2

Savings continued from page 1

Containing Rent CostsAs a direct result of cost-contain-

ment efforts, the Judiciary’s rent bill in 2008 is $150 million less than projected back in 2004. Rent that had been anticipated to increase 6 to 8 percent a year only increased by 2.9 percent in fiscal year 2008.

“Controlling our rent was abso-lutely critical to our success,” said Gibbons. “If we had succeeded in cutting costs in other areas, but not in our rent, we still would have had a major problem.”

The rate of growth in rent was slowed by proactive measures. The first step was a national moratorium on courthouse construction that lasted 24 months and gave the Judi-ciary time to re-evaluate.

Then a national rent validation initiative spearheaded by the U.S. District Court for the Northern District of New York identified mistakes in rent charges, giving the Judiciary rent credits and cumula-tive savings including cost avoid-ance over a 3-year period of more than $50 million. Additional rent adjustments and credits are antici-pated, and the Judiciary now has a program in place to ensure accurate rent bills in the long term.

In 2007, the Judicial Conference endorsed the Circuit Rent Budget (CRB) program. While new court-houses are still prioritized and funded at the national level, each circuit judicial council now has an allocated rent budget, and must decide which projects it can afford. Incentives encourage efficient space use decisions. Over the next eight years, the CRB program will hold space cost growth to no more than 4.9 percent, on average.

Changes to the U.S. Courts Design Guide over the last two years have also contributed by reducing office size for staff and chambers space for judges. Requirements for the clerk’s office space, especially intake areas and records storage, have been

reduced with the comprehensive use in the district and bankruptcy courts of the Case Management/Electronic Case Filing (CM/ECF) system. Library space has been downsized 13 percent as a result of reductions in lawbook collections.

A recently signed Memorandum of Agreement with the General Services Administration changes the way the Judiciary’s rent is calcu-lated for all federally owned court-houses delivered in the future, providing the Judiciary with certainty about the amount of rent it will pay for a 20-year period. Rental rates will be determined based on a return-on-investment methodology, rather than be subject to dramatic changes every five years as a result of changing commercial market conditions.

“Because aggressive steps were taken,” said Administrative Office Director James C. Duff, “even with a modest assumption of increases in rent, the Judiciary’s rent bill will not grow out of control over the next few years.”

Containing IT CostsTechnology has helped the Judi-

ciary handle a growing workload, but multiple local servers across the country are expensive to maintain and update. Consolidating servers

at a single location saves money. The Judiciary reduced by 89 the number of servers needed to run the jury management program, saving $2 million in the first year and saving an expected $4.8 million through FY 2012. Servers that run the case management system for the Judi-ciary’s probation program were consolidated, creating projected savings and cost avoidances of $2.6 million through FY 2012. The recently completed consolidation of servers for the Judiciary’s national accounting system will result in savings and cost avoidances totaling $55.4 million through FY 2012. The accounting system also is faster, more responsive, and more secure.

Containing Personnel CostsIf workload projections, staffing

formulas, and compensation policies had remained unchanged, by 2017 the Judiciary would spend almost $1.4 billion above current levels on court support staff. Anticipated future funding levels could not support that level of spending.

As an immediate step, the Judi-cial Conference Committees on Judi-cial Resources and Criminal Law have agreed to limit their FY 2010 requests for additional staffing by 500 positions—essentially setting a cap on staffing.

The Third Branch n August 2008

the Salaries and Expenses account is capped at 8.2 percent, the Defenders Services account at 7.5 percent (excluding certain panel attorney rate increases), and the Court Secu-rity account at 6.6 percent. The caps indicate the limits of spending; but with cost containment as an incen-tive, growth in these areas may be substantially below these limits.

“The process of developing caps was different with each Conference committee and, by working back and forth, we arrived at mutually agreeable results,” said Gibbons. “We hope that caps will be a way to constrain growth. Certainly, growth under the caps will be more modest than it might have been.”

Long-term Efforts“When I think of what the future

could hold, it’s a pretty daunting prospect,” said Gibbons. She points to a future where domestic spending is restrained, spending for Defense and Homeland Security increases, and where both entitlement require-ments and the federal deficit are guaranteed to grow.

“We still face a large potential shortfall between our expendi-tures and our appropriations,” she said. “And unlike other branches of government, we don’t control our workload and we can’t eliminate programs. Down the road, the same factors still exist that drove Chief Justice William Rehnquist in 2004 to task the Judicial Conference Execu-tive Committee with the implementa-tion of a cost-containment program. We still need to be good stewards and more forward with our efforts.”

Congress is aware that the Judi-ciary has taken drastic measures to contain costs, which has, according to Gibbons and Duff, increased the courts’ credibility when it asks Congress for funding.

“There’s no longer an immediate financial crisis but, as with much of

3See Savings on page 12

Limiting the growth in staffing increases is only part of the Judi-ciary’s efforts. Reducing the growth in staff compensation is another key cost-containment component.

The federal Judiciary undertook a major court job classification and compensation study, with recom-mendations adopted by the Judicial Conference that will affect staff posi-tions throughout the court system. Overhauling the Judiciary’s court personnel system, giving courts greater say in managing and paying personnel, updating court unit staffing formulas, and limiting the

number of career law clerks may produce up to $200 million in cost avoidances over the next decade.

“In the short term, court managers can and should hire the people needed to do the work,” said Gibbons, “because we’re planning and saving for the long term.”

Capping GrowthThe Budget Committee has

worked with other Judicial Confer-ence committees to set budget caps for the Judiciary’s accounts. In addi-tion to the rent cap of 4.9 percent,

$1.4 billion shortfall

$644 million shortfall

The Third Branch n August 2008

Community continued from page 1

4

Senate Appropriations Committee Takes Action

The Senate Appropriations Committee approved its version of the Judiciary’s fiscal year 2009 appro-priations bill in July, providing $6.52 billion for the Judiciary, a 4.3 percent increase over FY 2008, slightly below what the House Appropriations Committee provided the Judiciary when it acted in June.

Although both House and Senate Appropriations Committees have approved their versions of the FY 2009 Financial Services and General Government appropriations bill, the bills are not expected to reach the full House or Senate for a vote this year. Instead, it is highly likely the majority of spending bills will be carried over for action into the new Congress with a new Administration after January 2009. Until then, the federal government would operate under a Continuing Resolution.

“The prospect of operating under a CR should not stop courts from hiring staff this fiscal year as work-load needs necessitate and current funding allocations allow,” Adminis-trative Office Director James C. Duff urged judges and court unit execu-tives. “The House and Senate levels would fund each Judiciary account at current services or better, and we remain optimistic there will be suffi-cient funds under a CR to maintain any new staff hired in FY 2008.”

Both House and Senate Appropria-tions Committees gave the Judiciary’s Salaries and Expenses account a 4.6 percent increase. This account funds rent, judges and court personnel sala-ries and benefits, court operating expenses, information technology, and other expenses. In the Senate bill, the Defender Services account received $854 million, $9 million below the House level, with a $2 per hour increase in the non-capital panel attorney rate from $100 to $102. The House approved a $10 per hour

Appropriation Account FY 2008 FY 2009 House Senate Enacted President’s Approps. Comm. Approps. Comm. Appropriations Budget Mark Mark

U.S. Supreme Court

Salaries & Expenses $66,526 $66,777 $69,777 $69,776

Care of Building & Grounds 12,201 18,447 18,447 18,447

Subtotal 78,727 88,224 88,224 88,223

U.S. Court of Appeals for the Federal Circuit 27,072 32,357 30,384 31,482

U.S. Court of International Trade 16,632 19,622 19,590 19,605

Courts of Appeals, District Courts

& Other Judicial Services

Salaries & Expenses 4,623,361 4,967,344 4,834,313 4,837,013

Defender Services 846,101 911,408 862,977 854,204

Fees of Jurors 63,081 62,206 62,206 62,206

Court Security 410,000 439,915 430,004 428,004

Subtotal 5,942,543 6,380,873 6,189,500 6,181,427

Administrative Office 76,036 81,959 79,049 79,049

Federal Judicial Center 24,187 25,759 25,725 25,468

Judicial Retirement Funds 65,400 76,140 76,140 76,140

U.S. Sentencing Commission 15,477 16,257 16,225 16,225

Total, the Judiciary $6,246,074 $6,721,191 $6,524,837 $6,517,619

increase. The capital panel attorney rate, approved by both House and Senate Appropriations Committees, would increase to $174 per hour. The Senate bill would give the Court Security Account $428 million, $2 million below the House level.

The Senate bill includes funding for the General Services Administra-tion, and would cover cost overruns for the San Diego courthouse project due to the tight construction and unprecedented increases in building materials costs.

will return to their work in the Middle District of Florida’s Office of Probation and Pretrial Services, and the rest of the group—all offenders—will have fulfilled part of the community service condition of their probation.

“It’s an amazing collaboration,” said Chief Probation Officer Elaine Terenzi, whose office has spon-sored the Ocala project every year for a decade. “Everyone works hard, works together, makes a positive difference, and feels a sense of accom-plishment.”

Community service is a discre-tionary condition of probation that may be set by the court, often on the recommendation of a proba-tion officer. An offender must complete a certain number of hours of unpaid community service, or a particular task. The condition is not

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Chief Probation Officer Jerry Luna in the Western District of Texas. “Depending on where they work, they pick up good work habits and may even find jobs with community agencies.”

In the District of South Dakota, as in Rhode Island, if an offender is unemployed, he or she must partici-pate in community service projects, which could be insulating homes on one of the nine Native American reservations in the district, cutting wood, or working in day care centers. In FY 2007, nearly 58 percent of all post-conviction cases in the district included community service conditions.

“For some, community service is a way to show they are atoning for an offense,” said Chief Probation Officer Terryl Cadwell in the District of South Dakota. “It’s also a great moti-vator. We found that it’s a short time before they find paying jobs of their own. If they have to work anyway, some offenders feel they might as well be paid.”

Community service meets the traditional goals in sentencing of punishment, reparation, restitution, and rehabilitation. In the last fiscal year, offenders contributed well over 680,000 hours of service to their communities. In the Northern District of Georgia, some of those hours were spent building fences at Noah’s Ark,

an animal rehabilitation center with a sister home for children. The project saved the non-profit approximately $13,000 in labor. The district also has organized service projects such as landscaping a residence for foster children, building a bridge and trails in the Chattahoochee Forest, helping a service dog agency, and building a greenhouse for special needs children.

“On many of these projects, officers work side by side with offenders. It bridges the gap and it is very meaningful to everyone,” said Chief of Probation Tom Bishop in the Northern District of Georgia. “Offenders feel good about them-selves and what they accomplish.”

“It allows offenders to give some-thing back,” said Chief Probation Officer Joe McNamara in the District of Vermont, “but community service also should take them out of their comfort zone. Most don’t have a history of being volunteers, so this is a brand-new experience.”

It’s an experience that gives offenders a broader perspective, according to Luna. “Offenders get away from negative associations,” he said. “They develop a sense of responsibility to the community and to a world outside of their own.” Bishop agrees: “Offenders may be reluctant at first, but they leave different. They do something mean-ingful, and everybody wins.”

ordered if an offender has a history of violence, mental health issues, or sexual offenses. Nationally, in fiscal year 2007, 26,055 of all post-convic-tion cases, or 13.2 percent, included community service conditions.

“Community service shows offenders a different way to be produc-tive and successful at something,” said Chief Probation Officer Barry Weiner in the District of Rhode Island. “It’s not punishment per se, although it is part of their supervised release.”

In Rhode Island, if an offender under supervised release is not regularly employed, he or she must perform 20 hours per week of community service.

“We want to break the habit of sitting at home when they’re unem-ployed. Community service does that. It gets them up every morning, dressed, out of the house, interacting with people, and doing something good,” said Weiner.

Chief Probation Officer Warren Wade in the District of North Dakota sees community service falling under the umbrella of restorative justice. “The offender is helping to repair harm and rebuilding relationships within the community through their service,” he said. “And if offenders are working or completing their community service, they are more likely to remain compliant with their term of supervision.”

Community service may mean working at a non-profit agency or talking to young people about the perils of using guns and drugs. It could mean wheeling cancer patients to treatment, building a park for chil-dren with disabilities, or completing maintenance at a recreation area. Offenders might work at local hospi-tals, at thrift shops, or on rehabili-tating homes for the poor. Offenders also may fulfill their community service conditions by working in museums, at food banks, or in home-less shelters and elder care homes.

“It’s good for the community, and the offender benefits,” said Deputy

In a community service project in the Northern District of Georgia, U.S. probation officers joined offenders to construct a 47-foot-long pedestrian bridge in Sweetwater State Park.

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2008 Director’s Award Recipients NamedEight individuals have been named recipients of the 2008 Director’s Awards, given annually by the Director of the

Administrative Office of the U.S. Courts in recognition of the contributions of federal Judiciary members. This year’s winners were recognized for their outstanding leadership, for excellence in court operations, and, in one group award, for their extraordinary response to a critical situation.

“Every day, there are many in the Judiciary who contribute to the mission of the federal courts,” said AO Director James C. Duff. “But it is especially gratifying to recognize the outstanding efforts of these eight individuals who are improving operations and services and who demonstrate their leadership.”

Director’s Award for Outstanding LeadershipThe Director’s Award for

Outstanding Leadership acknowl-edges managerial employees who, through their outstanding leadership skills, contributed to the Judiciary on a national level. Recipients may have demonstrated exemplary steward-ship of resources, led national efforts to improve the federal Judiciary or foster innovations, developed work-force programs to increase produc-tivity, ensured access to the courts, or enhanced the image of the courts. Three individuals received awards for outstanding leadership.

Chief U.S. Probation Officer Richard W. Crawford, District of Hawaii, is recognized for the successful development and implementa-tion of an offender reentry initia-tive and evidence-based practice model. As districts nationwide faced growing caseloads and limited resources, Crawford established a framework and system of supervi-sion designed to reduce recidivism and violence, promote public safety, assist offenders transitioning to the community, and improve delivery of services and resources.

Among the innovations he pioneered were satellite drug screening and reporting stations to provide supervision services in remote areas of the Hawaiian Islands; a series of interactive journals utilizing cognitive behavioral therapy methods to address the needs of offenders; and a rigorous 150-hour program designed to train and prepare adult offenders to qualify

for employment in the construction industry in Hawaii.

Clerk of Court Charles R. Diard Jr., U.S. District Court for the Southern District of Alabama, is recognized for his innovative and enterprising leadership in both administration and technology. Under his direction, the court has gone completely electronic with all civil and criminal records filed and maintained through the Case Management/Electronic Case Files(CM/ECF) system. The court has mentored many other courts in their conversion to CM/ECF, while leading in the implementation of CM/ECF releases. Under his guid-ance, district courtrooms have been upgraded with state-of-the-art tech-nology plus access to the telephone interpreting program in every court-room. Diard is currently working on a streamlined on-line method for the authorization of and payment for transcripts. His approach is service-oriented, whether it’s to the public, the bar, or another court.

Bankruptcy Clerk of Court Sean F. McAvoy, U.S. Bankruptcy Court for the Northern District of Iowa, is recognized for his effort and enthu-siasm, both of which have energized the clerk’s office and raised its level of excellence. McAvoy is a member of both the CM/ECF Working Group and the Forms Modernization Project, and is a proposed member of the “Future of CM/ECF” Steering Committee. He has served since December 2005 as a member and since 2007, as chair of the Federal Judicial

Richard W. Crawford

Andrew F. Bach

Charles R. Diard, Jr.

Sean F. McAvoy

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Center’s Bankruptcy Education Advi-sory Group. McAvoy is part of the initiative to revise the Bankruptcy Clerk’s Manual, has contributed to the development of a web-based automated training program to help staff understand the Federal Rules of Bankruptcy Procedure, serves as the court’s representative on the circuit’s Rent Cap/Control Committee, and is the current chair of the Eighth Circuit Internal Controls Committee. He has improved service to the bar and public through cross-training of the entire staff, the development of a pro se informational website and manual, and has surveyed customers to identify areas for improvement. He prepared and implemented the district’s first Continuity Of Opera-tions Plan, launched an initiative to continually improve current opera-tional processes and procedures, and implemented a performance evalu-ation tool that measures employees’ contributions and goals to person-alize training and career develop-ment.

Director’s Award for Excellence in Court Operations

The Director’s Award for Excel-lence in Court Operations is divided into the categories of excellence in court administration, in court tech-nology, in court support, and in mission requirements. Recipients of this award have helped the Judi-ciary operate with economy and effi-ciency, have improved federal court service through innovations, or have enhanced the public’s awareness of the Judiciary or its image.

Andrew F. Bach, Systems Manager for the U.S. Bankruptcy Court for the Western District of Wisconsin, received his award in the area of court technology. He is described by court colleagues he has helped over the years as the first person they contact when there is a program-ming problem. In their words, he is

“eager to help,” “technically savvy,” “immediately responsive,” and a man who “never met a software program, platform, or system that he could not master.” He admits, however, to being a little daunted by VMS. He is happy to be able to share his programming skills with court IT professionals across the country, and the result has been many improve-ments in information management technology and court applications for the Judiciary.

George W. Hoggan, Informa-tion Systems Manager for the U.S. Probation Office, Southern District of California, also received his award in the area of court tech-nology. He led the development of the Document Imaging Module (PDIM) within the Probation and Pretrial Services Automated Case Tracking System/Electronic Case Management System. PDIM creates an electronic case file that is available anytime, from any office or remote location, and from which docu-ments can be easily submitted to the Department of Justice and the U.S. Sentencing Commission. PDIM is a time and money saver.

Kathleen L. Peek, Assistant Circuit Executive, U.S. Court of Appeals for the Third Circuit, received her award in the area of court administra-tion for her work as a member of the Circuit Rent Budget Working Group. The CRB Working Group developed an allotment formula and an imple-mentation plan for rent growth. As a member of the group, Peek integrated a knowledge of the workings of the General Services Administration and the Third Circuit Judicial Council with practical experience in the financial management of the Third Circuit’s space and facilities accounts and the procurement, budget call, and space acquisition process. She distinguished herself as a consensus-builder and a problem solver.

See Director’s Award on page 9

George W. Hoggan

Kathleen L. Peek

Doug Burris

Greg Forest

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THE

THIRD BRANCH

Published monthly by theAdministrative Office of the U.S. Courts

Office of Public AffairsOne Columbus Circle, N.E.

Washington, D.C. 20544(202) 502-2600

Visit our Internet site at http://www.uscourts.gov

DIRECTORJames C. Duff

EDITOR-IN-CHIEFDavid A. Sellers

MANAGING EDITORKaren E. Redmond

PRODUCTIONLinda Stanton

Please direct all inquiries and address changes to The Third Branch at the above address or to Karen_Redmond@ao.uscourts.gov.

JUDICIAL BOXSCORE

J U D I C I A L M I L E S T O N E S

As of August 1, 2008

Courts of Appeals

Vacancies 10 Nominees 8

District Courts

Vacancies 31 Nominees 22

Courts with“Judicial Emergencies” 12

Up-to-date information on judicial vacancies is available at http://www.uscourts.gov/judicialvac.html

Appointed: Raymond M. Kethledge, as U.S.Court of Appeals Judge, U.S. Court of Appeals for the Sixth Circuit, July 8.

Appointed: Kiyo A. Matsumoto, as U.S. District Judge, U.S. District Court for the Eastern District of New York, July 23.

Appointed: Leslie C. Longenbaugh, as U.S. Magistrate Judge, U.S. District Court for the District of Alaska, July 10.

Appointed: David A. Sanders, as U.S. Magistrate Judge, U.S. District Court for the Northern District of Mississippi, June 30.

Senior Status: U.S. Court of Appeals Judge Chester J. Straub, U.S. Court of Appeals for the Second Circuit, July 16.

Senior Status: U.S. District Judge Charles Bruno Kornmann, U.S. District Court for the District of South Dakota, July 31.

Elevated: U.S. District Judge Michael James Davis, to Chief Judge, U.S. District Court for the District of Minnesota, succeeding U.S. District Judge James M. Rosen-baum, July 1.

Retired: U.S. Senior Judge Stephen Nathaniel Limbaugh, U.S. District Court for the Eastern District of Missouri, July 31.

Resigned: U.S. Magistrate Judge John C. Rayburn, Jr., U.S. District Court for the Central District of Cali-fornia, August 1.

Deceased: Senior U.S. District Judge Charles L. Brieant, Jr., U.S. District Court for the Southern District of New York, July 20.

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Director’s Award continued from page 7

Director’s Award for Extraordinary ActionsThe Director’s Award for Extraor-

dinary Actions is given to a Judi-ciary employee who has exhibited bravery and concern for others in the face of adverse conditions, displayed creativity and resourcefulness in a critical situation, or ensured that the Judiciary’s mission is met during an emergency.

Chief U.S. Probation Officer Doug Burris, Eastern District of Missouri, and Chief U.S. Proba-tion Officer Greg Forest, Western District of North Carolina, share the 2008 award for the planning and hosting of “crack summits” in Charlotte, North Carolina on January 17-18, and in St. Louis, Missouri, on January 24-25, 2008. Within weeks of the U.S. Sentencing Commission’s vote to amend retro-actively the sentencing guide-lines for crack cocaine offenses, the district courts had to prepare for an influx of 20,000 retroactivity cases. The crack summits, which drew more than 600 judges, prosecutors, defenders, clerks, and probation officers, brought all stakeholders to the table to establish local processes for retroactivity cases that would permit districts to plan and allocate their resources in sensible and effi-cient ways. Burris and Forest exhib-ited vision and judgment, leader-ship and consideration of others, and creativity and resourcefulness in their planning and organization. Both crack summits were unquali-fied successes and played an essen-tial role in ensuring the Judiciary’s ability to meet the many challenges imposed by retroactivity.

Out of Sight, But Not Gone

To protect the privacy of liti-gants, the Federal Rules of Practice and Procedure require that certain personal data identifiers be modified or partially redacted from federal court case files. These identifiers are Social Security numbers, dates of birth, financial account numbers, and names of minor children, and in criminal cases, also home addresses.

In all cases, it is the responsibility of the attorney and the parties in the case to redact personal identifiers.

But redaction, once a matter of drawing a heavy black line through the words on paper, has changed with the electronic filing of docu-ments. A black bar drawn over the text is no longer enough to block it from view. In an electronic file, the obscured text still lurks beneath the highlighter box and can be readily recalled. The text is hidden, not excised.

Attorneys filing pleadings recently in a Connecticut case learned that lesson the hard way. They created black boxes to cover

text they wished to redact. Unfortu-nately, simply pasting the text into a Word file revealed the hidden infor-mation. Changing the text color to white so it disappears against the white screen/paper is similarly inef-fective.

To redact text, its metadata—liter-ally the information about the data—must be removed. For best results, delete the text from the file before creating a PDF file and save it with a new name. Commercial software designed specifically to redact is also available.

If you’re tempted to redact text from an existing PDF file, be warned that some experts now advise against it. By using a text editor, the original unmodified text may still be recovered.

Many courts, such as the District of Arizona and the Northern District of California, have posted informa-tion to their websites on effective redaction techniques. For a look at their tips, visit their websites at: https://ecf.cand.uscourts.gov/cand/faq/tips/redacting.htm or http://www.azd.uscourts.gov/azd/cm-ecf.nsf/docview/files/$file/redaction.pdf

Celebrate Constitution Day – September 17, 2008

Celebrate Constitution Day with a conversation with Supreme Court Justices Antonin Scalia and Stephen G. Breyer. In a 37- minute video, the justices talk with a group of high school students about how the Supreme Court decides what the Constitution means, and how judicial interpreta-tion affects not only the outcomes of cases, but democracy and daily life. Their video discussion can be found online on the federal courts’ Educational Outreach pages at www.uscourts.gov/outreach/index.html.

Also new for Constitution Day 2008 is a video on the insights of federal judges on what judicial independence and separation of powers mean to the public. The video is available on the Judiciary’s Educational Outreach pages at www.uscourts.gov/outreach/index.html, and was produced by the Leonore Annenberg Institute for Civic Education. Interviews were contributed by the American Bar Association Judicial Division’s National Conference of Federal Trial Judges, chaired by Judge Barbara M.G. Lynn (N.D. Tex.).

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I N T E R V I E W continued from page 1

Prisons (BOP) to develop the agenda, which this year included sessions on sentencing practices, post-Rita, Gall, and Kimbrough; retroactive applica-tion of the amended crack cocaine guideline; crime victims’ rights; and offender reentry and the Second Chance Act of 2007. The Institute also included a tour of the Federal Correc-tional Institution at Terminal Island, during which participants were able to meet with inmates and staff.

As to the method for determining who will be invited to an Institute, each circuit is allotted a number of invitations for judges in proportion to the number of cases sentenced in that circuit in the preceding year. In addition, one United States attorney, one probation officer, and one federal defender from each circuit are invited to attend. The Criminal Law Committee members work with the FJC in extending these invitations.

Q:What was the Criminal Law Committee’s position on

the retroactivity of the amended sentencing guideline dealing with crack cocaine?

A:The Judicial Conference has previously expressed its

opposition to the existing disparity between crack and powder cocaine sentences and its support for a reduc-tion of that difference. In a November 2, 2007, letter to the Sentencing Commission, the Criminal Law Committee expressed support for the retroactive application of the amended crack guideline. Judge Reggie Walton, a member of the Criminal Law Committee, subse-quently testified at the Commission’s public hearing in support of the Committee’s recommendation that the amendment be made retroactive.

Q:In December 2007, the Commission made the amend-

ment retroactive, effective March 3,

2008. Did your Committee offer any guidance to district court judges?

A:We were aware that some districts had sentenced

hundreds, and sometimes thousands, of defendants who were potentially subject to the retroactive guideline; many of these offenders would be entitled to immediate release if the reduction were granted. Thinking through and identifying the most efficient procedures to handle these cases was important. Accordingly, the Office of Probation and Pretrial Services (OPPS) at the Administra-tive Office, and the Criminal Law Committee, along with the chief probation officers of the Western District of North Carolina and the Eastern District of Missouri, planned two “summits” that were held in January in Charlotte, North Caro-lina and St. Louis, Missouri. Judges, probation officers, prosecutors, and federal defenders met to arrive at procedures that would work in their respective districts.

In addition, the Committee and the Commission introduced a new one-page order form (AO 247) that district courts could use in issuing sentencing modification orders in these cases. Designed to be less burdensome than the 24-page amended judgment form (AO 245C), this model order form captures the data needed by the Sentencing Commission.

Q:Following the March 3, 2008, effective date for retroac-

tive implementation of the guide-lines amendment, how have proba-tion officers fared in handling these numerous sentencing reduction requests?

A:Probation officers have done a remarkable job responding

to the increased workload demands related to the crack sentencing modi-fications. Since the March 3 effec-

tive date, probation officers have completed more than 17,400 supple-mental investigations. The AO has estimated that each full supple-mental investigation takes approxi-mately five hours to complete. That our officers have handled well and cheerfully such substantial addi-tional duties speaks volumes about their dedication. Similarly, much credit for their efforts goes to judges in districts with large volumes of crack cases. Using data reported through July 7, 2008, the Commis-sion reports that 9,769 cases have already been considered by the courts, with 7,513 sentencing reduc-tions having been granted.

Q:In March, the Judicial Confer-ence agreed to seek legisla-

tion setting out expanded powers for probation officers who conduct searches. Why is this legisla-tion needed and, if the legislation becomes law, what guidance will be provided to probation officers in the use of these new powers?

A:Since 1993, probation offi-cers have been allowed to

conduct searches of offenders under

Judge Julie E. Carnes, Northern District of Georgia

The Third Branch n August 2008

11See Interview on page 12

their supervision pursuant to model guidelines approved by the Judicial Conference. These guidelines indicate that searches by probation officers are disfavored, but may, in appro-priate circumstances, be conducted with the consent of the offender or pursuant to conditions of release that permit such searches. The guide-lines further indicate that an officer’s ability to search does not extend the law enforcement authority of the officer beyond those powers set out in 18 U.S.C. § 3606. Accordingly, the guidelines indicate that the officer is not permitted to restrain a disruptive third party who is present during a search and the officer must abandon a search if a third party refuses to cooperate or otherwise impedes the officer’s efforts.

A working group of probation and pretrial services officers has studied the issue of searches conducted by probation officers. This group has recommended to the Committee that officers be authorized to take measures for their own protec-tion—such as protective sweeps or frisks of third parties—to the same degree that any other law enforce-ment officer would be permitted to take those actions when conducting a search. The proposed legislation would confer on probation officers equivalent authority. Probation staff are now studying the existing guide-lines, and the Committee will ulti-mately determine whether a revision of the guidelines would be prudent.

Q:Can you give us an update on the Probation and Pretrial

Services Academy at the Federal Law Enforcement Training Center (FLETC), which in 2004 began offering training for probation and pretrial services officers at its campus in Charleston, South Carolina?

A:Through its partnership with FLETC, the Academy has been

able to provide new officer training and advanced safety training to probation and pretrial services offi-cers. The new officer academy, which runs for six weeks, prepares new officers to conduct investigations, write reports, and supervise defen-dants. The program also trains new officers in self-defense and the use of firearms, interviewing and testifying skills, and various IT programs, such as PACTS. By all accounts, the training programs offered at FLETC have been very helpful in developing the skills of our officers.

The Committee is grateful that Administrative Office Director James C. Duff recently agreed to increase the number of instructors at the academy. The availability of additional instruc-tors will help to reduce the waiting period that had previously existed for the training program.

Q:Congress recently passed the Second Chance Act. Will

that legislation have any impact on federal offenders?

A:Most of the provisions of the Act benefit state and local

governments by providing grants for programs offered to offenders reentering society upon their release from state prisons. There are a few provisions, however, that impact federal offenders. For example, the Act expands the amount of time that an inmate returning to the commu-nity may serve in a residential reentry center from 6 months to 12 months, and it requires the BOP to develop a pilot program for the early release of elderly, non-violent inmates.

One provision of the Act that was sought by the Judicial Confer-ence, on the recommendation of the Committee, expands the authority of the Director of the AO to contract for various reentry services. Previ-ously, the contracting authority had been limited to providing services

to offenders who were mentally ill or who were alcohol or substance abusers. Now, contract services can be made available to any offender in need of emergency housing, training, and other services designed to protect the public and promote the successful reentry of the offender into the community. At this juncture, however, Congress has provided no funding for these programs and, therefore, any use of this new authority will require an expendi-ture from existing funds. The AO has begun working with probation staff to develop guidance on the use of this new authority.

Q:2004 was a tough budget year for the Judiciary, and federal

probation offices were among the hardest hit when cutbacks were necessary in personnel. How have they coped with this reduced staffing?

A:In the first quarter of fiscal year 2004, there were 8,138

probation and pretrial services staff on board. As a result of the reduced funding, the staffing level had dropped to 7,546 by the 2nd quarter in FY 2005. Given the ever-increasing workload, such a substantial reduc-tion in staffing was unprecedented, but the probation and pretrial service system was able to adapt by prioritizing workload. Because of the “can-do” attitude of our officers, many judges were likely unaware of the staffing pressures under which they were operating.

Thanks to successful advocacy by the Conference’s Budget Committee, funding has increased in subse-quent years, and there are now 8,159 on-board staff.

Q:What issues or objectives do you see in the future for the

Criminal Law Committee?

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A:This is a very interesting time to be working on criminal

justice issues and, in particular, on issues concerning the supervision of offenders. Our probation officers are, in part, law enforcement offi-cers who have a responsibility to promote the public safety through their vigilant oversight of the conduct of supervised offenders. These offi-cers also have a duty not conferred on traditional law enforcement offi-cers, however, “to aid” an offender in order “to bring about improvement in his conduct and condition.” 18 U.S.C. § 3603(3). The Committee, OPPS, and our probation officers are spending a great deal of time studying the most effective ways to accomplish the latter, which will, in turn, better promote the former.

While the budget shortfall of 2004 created some difficult times, that

experience forced the Committee and our probation and pretrial services officers to commit to becoming an outcome-based organization and to identify the most effective practices avail-able to accomplish our work. The Committee and OPPS are pres-ently focused on that endeavor, as we study and develop the use of “evidence-based practices,” which are those techniques that have been shown, empirically, to most improve an offender’s chance for success. We have identified some specific programs that are now being used in pilot districts. We hope to be able to measure the effectiveness of specific policies and procedures in promoting key outcomes, such as a reduction in recidivism.

the federal government, the long-term problem remains,” said Duff. “The long-term ‘must pays’ are still expected to grow faster that we can support them. But we have time to manage our way by continuing to emphasize cost containment and looking for new initiatives.”