The status of funding for the federal courts has in recent days been overshadowed – first, by the government shutdown and now, by the federal debt ceiling.  But, the situation is not good.

The Judicial Conference of the United States has written directly to President Obama to protest the impact caused by budget cuts and sequestration on the courts and federal defender system.

The letter to President Obama is available here. 

Ever sent an email to the wrong person?  What about sending one to maybe the wrong-est person you could send it to?

There is an interesting story in the Omaha newspaper about just such an event: 

[L]ast week . . . an official with the Nebraska State Bar Association sent an email to bar officials, praising how the organization’s attorneys had handled the “ill conceived and uninformed” questions asked by the Nebraska Supreme Court about the proposed rule change.

The problem? The email was inadvertently sent, as well, to the top judge on the court, Chief Justice Mike Heavican.

Ouch.

The email was not only embarrassing, but such contact outside a courtroom with a judge is improper and can force a judge to excuse himself from ruling on a case.  The email was sent by Omaha attorney Warren Whitted Jr., an immediate past president of the bar, just after the high court heard oral arguments Sept. 30. The case involved whether lawyers should continue to be required to join the bar, the state’s lawyers’ association.

Sometimes public bodies begin the proceeding with a prayer. The United States Senate even has an official chaplain. Most prayers are notably unremarkable, but not all of them.

Senate Chaplain Barry C. Black showed his disapproval for the ongoing government shutdown during his morning prayer recently. Black, a former Navy rear admiral, has been the Senate Chaplain for over a decade.

In his prayer before the Senate, he asked God to “save us from the madness,” the New York Times reported.

“We acknowledge our transgressions, our shortcomings, our smugness, our selfishness and our pride,” he continued. “Deliver us from the hypocrisy of attempting to sound reasonable while being unreasonable.”

He asked God to forgive members of Congress.

“Remove from them that stubborn pride which imagines itself to be above and beyond criticism,” he said. “Forgive them the blunders they have committed.”

With a prayer like that, you wonder if some Senators might offer to file an Amicus brief to support a ban on prayer at government meetings.

On November 6th, in Town of Greece v. Galloway, the Supreme Court will hear oral argument regarding prayer at government meetings. The case could overrule or limit Marsh v. Chambers, which allowed prayer by a paid minister.

In Galloway, volunteer private citizens said the prayers and the 2nd Circuit said that practice was unconstitutional. According to the 2nd Circuit opinion, the prayers were occasionally diverse, but were largely Christian. SCOTUS blog and the 2nd Circuit opinion sum up the case this way:

“The town’s desire to mark the solemnity of its proceedings with a prayer is understandable; Americans have done just that for more than two hundred years. But when one creed dominates others — regardless of a town’s intentions — constitutional concerns come to the fore.” The problem for officials of the town of Greece was that the practice appeared almost entirely Christian. No real effort was made to let the community know that other religions were welcome, and officials made no attempt, themselves, to reach out to other faiths to encourage them to take a turn delivering the prayers.

“There is no doubt that the town seeks to convey respect for the invocations given at its meetings. But efforts to show respect for a belief espoused in a legislative prayer entail a concomitant obligation to demonstrate respect for the beliefs of others.”

— Judge Guido Calabresi in Town of Greece v. Galloway, Second Circuit

The National Law Journal reports that several federal courts have rejected advice and declared that all of their employees are essential.  “A growing number of federal chief judges have had enough.”

Frustrated by Shutdown, Federal Judges Push Back

 

Frustrated by the budget stalemate in Congress, many judges across the country declared all employees essential in the face of a shutdown—a bold but necessary move, the judges said, to ensure basic court operations past the judiciary’s funding date of October 17.

In more than two dozen courts, from busy urban districts in New York and Chicago to rural areas, judges went against guidance from the judiciary urging them not to enter broad orders deeming all staff essential. Judges said severe budget cuts over the past year left them no choice.

“We’re drowning,” said Chief Judge Anne Conway of the U.S. District Court for the Middle District of Florida, who declared all employees essential on October 7. “We’re treading water to keep our heads up. There’s just nobody left.”

The federal judiciary has enough money to keep courts fully operational through at least October 17th. Beyond that, the chief judges of district, appeals and bankruptcy courts were instructed by the Administrative Office of the U.S. Courts to figure out a shutdown plan for their respective courts.

Under federal law, only employees deemed “essential” could keep working if Congress failed to pass a budget by the start of the fiscal year on October 1. Now almost two weeks in, chief judges across the country said furloughs were off the table if the shutdown outlasted the judiciary’s funding.”

Richard Zorza posted the below in his blog on October 13, 2013.  Be sure to read the The Politico story he references.

Will DC Events Impact Judicial Deference to Congress

There is an interesting article in Politico today [October 13th] about how anger at Congress is increasing in the Federal Judiciary. The article focuses mainly on how upset the courts are at the financial impact of sequestration and the shutdown on the courts themelves. But there is one highly suggestive account of how a Federal judge, asked to exempt the case brought by the House about “Fast and Furious” from the shutdown delays, responded: “While the vast majority of litigants who now must endure a delay in the progress of their matters do so due to circumstances beyond their control, that cannot be said of the House of Representatives, which has played a role in the shutdown that prompted the stay motion.”

Of course, judicial deference to Congress, a flexible concept at best, is deeply engrained in our jurisprudence. But, thinking as a former appellate advocate, I would find it hard right now to keep a straight face trying to make an argument that the court before which I was arguing should assume that Congress had carefully thought through all the implications of its actions, and should be presumed to have meant what it said, and said what it meant.

While there are surely judges, even on the Supreme Court, who will take recent events as further evidence that Democrats are utterly without responsibility, it is likely that at least some conscientious centrist judges will internalize whatever the ultimate broad lesson the public as a whole takes from these events.

At a minimum, therefore, it may be that arguments about lack of resources to meet constitutional requirements will become less sympathetically heard. Many government due process issues, for example, are decided on Mathews v. Eldridge, which includes cost to the government as part of the balancing test. Today’s Congressional process on financial decisions can hardly be said to be one to which deference should be paid.

Moreover, the same lack of deference might well extend to other matters. It would be nice to think that this would result in an increase in judicial willingness to protect rights.

Getting confirmed to the federal bench is not easy – and given the fact that confirmation means the judge has a lifetime appointment, it is understandable that Senators are cautious about who they support.

At the federal district court level, Senatorial courtesy is pivotal to the process. As a result, it is pretty rare that a home-state Senator will withdraw support for a nominee once they have endorsed that candidate.

Months ago, Senator Marco Rubio and Senator Bill Nelson agreed to the nomination of William Thomas. William Thomas is a Circuit Judge for Florida’s Eleventh Judicial Circuit. He has a good reputation as a trial judge (although for reasons that are not clear, he is not a member of the American Judges Association which would, of course, welcome his membership).

Recently, however, Jennifer Bendery reported in The Huffington Post that Senator Marco Rubio has withdrawn his support for federal judicial nominee Judge Thomas, and is now blocking his nomination.

Senator Rubio originally recommended Thomas to President Obama in late 2012 to fill a vacancy in the U.S. District Court for the Southern District of Florida. The vacancy has been declared a “judicial emergency” by the Administrative Office of the U.S. Courts. The judgeship Thomas has been nominated for has been open for more than 18 months.

If confirmed, Judge Thomas would be the first openly gay black man to serve as a federal judge. A spokeswoman for Senator Rubio told The Huffington Post that, “the senator decided to pull his support after ‘a thorough review’ of Thomas’ record, including two cases that Thomas handled as a Miami-Dade circuit judge.”

The spokeswoman had no explanation as to why the Senator did not know of these cases before the nomination and his endorsement of Thomas, nor why it took months for him to find the cases.

For several years, the American Judges Association has supported raising the retirement age for judges in the United States, and has particularly supported the efforts in New York.

The Brennan Center for Justice reports,

“A question on the New York state ballot this November will decide if the retirement age for state Supreme Court and Court of Appeals judges will be raised from 70 to 80, reports the Gotham Gazette.* “Advocates for the amendment – prime among them being the state’s Chief Judge, Jonathan Lippman, himself near the age limit to serve – say passing the measure could alleviate the state’s overloaded judicial system, where there is a backlog of some 31,000 cases in [the] state Supreme Court alone.” Some opponents of the law are concerned that Judge Lippman is pushing through his own term-limit extension, as this move would clearly benefit his seat on the Court of Appeals. “However, opponents of the measure have largely kept out of the spotlight because challenging New York’s chief judge is not considered a bright career move. Others say allowing older judges to stay on the bench will keep the higher positions on the court occupied by elderly white men, thereby discouraging diversity on the court.” If the ballot measure passes, New York would have the second highest retirement age in the nation; Vermont requires retirement at age 90.”

 

*In New York, the Court of Appeals is the highest appellate court in the state. The state Supreme Court is the state’s main trial court.

In many states and provinces, judges play a role in placing kids into foster care and in getting kids out of foster care. So a new report on medication given to children in foster care should cause some alarm. 

Governing Magazine reports that: 

“Mental health issues are front and center in human services. Every day, caseworkers work in an environment where mental health services aren’t as robust as they should be and where medication for kids in custody sometimes serves as a substitute for more appropriate care.

A good example of this is in New York state, where a crew of data hounds found that on Fridays, requests for psychotropic meds for kids in custody — especially those in institutional settings — spiked. Why? The unavoidable conclusion the data crunchers came to was that weekends at institutional facilities means fewer staff, and fewer staff means that properly attending to kids’ needs is tougher. To be blunt about it, it’s just cheaper and easier to drug kids than to take care of them in the most therapeutically appropriate way.

Of course, concerns over the use of medication among foster children certainly aren’t exclusive to New York. A Government Accountability Office (GAO) report released at the end of last year highlights two alarming facts: First, children under state supervision generally aren’t getting consistent, appropriate mental health care of any kind, even though mental health issues are a huge part of why kids wind up in state custody. Second, nearly 20 percent of children in foster care are taking psychotropic medication — three times the rate of children on Medicaid and four times higher than kids covered by private health insurance.”

The title of this post is the title of a new paper authored by Professor Michael Tonry and available via SSRN.

Evidence, Ideology, and Politics in the Making of American Criminal Justice Policy

 Michael Tonry

University of Minnesota Law School

October 3, 2013

42 Crime & Justice, Forthcoming 

Minnesota Legal Studies Research Paper No. 13-52

Here is the abstract:

The development of a large and productive community of criminal justice programs, scholars, and researchers in the United States since the 1970s has not led to the emergence of a general norm of evidence-based policy making. Nor on many subjects have accumulations of improved knowledge had much influence. On a few they have. The two best examples of influence are policing and early childhood prevention programs. Concerning policing, a plausible story can be told of an iterative process of research showing that police practices and methods do and do not achieve sought-after results, followed by successive changes in how policing is done. Concerning early childhood programs, a conventional scientific process of hypothesis testing and repeated pilot projects with strong evaluations led to widespread adoption of improved programs and techniques. Concerning sentencing, sanctioning policies, firearms and violence, and drug policy, by contrast, strong bodies of accumulating evidence have consistently been ignored. Correctional rehabilitation research is a hybrid. Eclipsed in the 1970s by a gloomy view that “nothing works,” research on correctional treatment in the 1980s and 1990s demonstrated that a wide variety of programs can improve offenders’ lives and reduce reoffending. The findings have influenced the development of reentry and other programs that focus primarily on risk classification and reduction of recidivism rates, but only incidentally on addressing offenders’ social welfare needs.

Professor Doug Berman has a blog, Sentencing Law & Policy.

This, is why it should appear on your favorites:

“The New Asylums: Jails Swell With Mentally Ill“

The title of this post is the headline of this lengthy new investigative report published in The Wall Street Journal.  Here are excerpts from the important article:

America’s lockups are its new asylums. After scores of state mental institutions were closed beginning in the 1970s, few alternatives materialized. Many of the afflicted wound up on the streets, where, untreated, they became more vulnerable to joblessness, drug abuse and crime.

The country’s three biggest jail systems — Cook County, in Illinois; Los Angeles County; and New York City — are on the front lines. With more than 11,000 prisoners under treatment on any given day, they represent by far the largest mental-health treatment facilities in the country. By comparison, the three largest state-run mental hospitals have a combined 4,000 beds.

Put another way, the number of mentally ill prisoners the three facilities handle daily is equal to 28% of all beds in the nation’s 213 state psychiatric hospitals, according to the National Association of State Mental Health Program Directors Research Institute Inc. “In every city and state I have visited, the jails have become the de facto mental institutions,” says Esteban Gonzalez, president of the American Jail Association, an organization for jail employees.

Correctional systems define mental illness differently. Generally, the term is used to describe prisoners who require medication for serious issues ranging from major depressive disorders to schizophrenia and bipolar disorders. Also included are inmates with diagnoses that warrant overnight stays in a mental hospital or who demonstrate serious functional impairment.

To get a snapshot of how the U.S. is grappling with such an explosive societal issue, The Wall Street Journal surveyed all 50 states about issues of mental health within their prison populations. Of the 22 states that provided detailed responses, their mental-health patient ratios ranged from one in 10 inmates to one in two. Inmates in all 23 responding states account for 55% of the prisoners in the U.S. under state jurisdiction.

In Oregon, the trend is particularly acute. Officials there estimate that half the state’s 14,000 prison inmates suffer from some type of mental-health issue. Several states with large inmate populations, like Michigan and Illinois, reported to the Journal that about 8% to 10% of their inmates suffered from serious mental illnesses, such as schizophrenia. Smaller states, like Montana, said as many as 15% of their inmates suffered from serious mental illness.

Roughly 5% of all adult Americans suffer from a serious mental illness, according to a 2012 report by a division of the U.S. Department of Health and Human Services.

Caring for such distressed inmates is costly. National Alliance on Mental Illness, one of the leading advocacy research groups, estimates that prisoners with mental illness cost the nation $9 billion annually. Other challenges are evident. In Los Angeles, for example, the U.S. Department of Justice found in 1997 that mentally ill inmates were abused and endured conditions that violated their federal civil rights.

Earlier this month the DOJ sent a letter to L.A. officials saying that despite some apparent progress, there is “a growing number” of mentally ill inmates housed in general population quarters at Men’s Central Jail, as well as a “recent increase in suicides.” Assistant Los Angeles County Sheriff Terri McDonald said the growing population of mentally ill inmates “certainly strains the system.” She said they would continue to work with DOJ officials “and we welcome their thoughts.”

Some facilities have attempted to cope by hiring psychiatric staff and retraining prison officers. Few, however, claim to be adequately equipped to handle some of the nation’s most mentally frail. A seeming revolving door compounds the problem: Upon their release, the mentally ill tend to find scant resources and often quickly fall back into the system, says Mr. Gonzalez.

Even in some areas that have seen reductions in the general inmate population, the mentally ill constitute a growing share of correctional space. For example, New York City’s total prison population has fallen to 11,500, down from 13,576 in 2005. Yet the number of mentally ill prisoners has risen, to 4,300 from 3,319, says Dora Schriro, commissioner of corrections for the city. That means the city’s percentage of mentally ill prisoners grew from 24% to 37%.

The picture echoes the past. Two centuries ago, reformers were disturbed to find large numbers of the mentally ill in jails, paving the way for the development of state-run institutions. In the 1950s and 1960s, complaints about abuses, advances in medication and a push to give the patients more independence led to another change, this time toward community settings. The weaknesses of that concept—a lack of facilities, barriers created by privacy laws and tightened local and state funding—has brought the picture full circle.

“Society was horrified to warehouse people in state hospitals, but we have no problem with warehousing them in jails and prisons,” says Thomas Dart, sheriff of Cook County.