March 2012: Automatic Cuts Would Cripple the Courts

Washington Watch | March 2012
By Bruce Moyer

There is widespread agreement that our nation’s fiscal house is in disorder. The country clearly lies on an unsustainable fiscal path. The European economic crisis provides a salient picture of what can happen when national spending outruns fiscal resources. But wide disagreement exists in Congress over how to avoid a similar disaster on our shores, whether by cutting spending, raising taxes, or a combination of both.

Nonetheless, the statutory pieces are already in place for the federal government to begin huge cuts in spending beginning 10 months from now. Automatic spending cuts are scheduled to kick in on Jan. 1, 2013, as a result of the failure of the congressional fiscal supercommittee to reach agreement upon cuts and taxes last November. The debt ceiling law passed by Congress last August requires sweeping automatic cuts, called sequestration, totaling $1.2 billion. These cuts will reduce defense spending by $500 billion and reduce domestic programs, including spending for the federal courts, by nearly the same amount.

For the federal judiciary, these spending cuts will have significant, devastating consequences for the administration of justice. The Congressional Budget Office estimates that domestic programs would be cut roughly by 8 percent. An 8 percent cut for the judiciary would fund the third branch at approximately $6.4 billion—more than a half-billion dollars below what is needed to maintain current operations. To put things in perspective, sequestration would reduce funding for the federal courts to a level below the courts’ funding level three years ago in 2009.

Because the operations of the federal courts are so labor-intensive, the courts’ workforce would bear the biggest brunt of the cuts. Beginning next year, firings, furloughs, and retirements would be needed as a way to thin the ranks of court staff by roughly one-third. It is estimated that the federal courts would need to cut 36 percent of their workforce—or 7,800 court staffers along with more than 450 court security officers. These cuts would extend to court staff in clerks’ offices, pretrial services offices, judges’ staffs, and practically anyplace else in the federal courthouse where people work.

When combined with an emerging decline in bankruptcy filing fees, these staffing cuts would have a significant and devastating impact on the operations of the federal courts and the federal bar. How bad would it be? The following outcomes are already being forecast:
  • Hours of operation in the clerks’ offices in the federal courts would have to be sharply reduced. Filings and motions would take longer to process, which would lead to delays in court proceedings. It would also take longer to issue payments to jurors serving on petit and grand juries.
  • The federal courts would be unable to properly supervise thousands of persons under pretrial release and convicted felons released from federal prisons, thus compromising public safety.
  • Payments to panel attorneys in Criminal Justice Act cases would have to be suspended. The impact could extend to panel attorneys in thousands of such cases. Dismissal of criminal trials could occur because of many sole practitioners’ potential inability to accept appointments without compensation.
  • Even more alarming, federal judges would have to suspend all civil jury trials because of reductions in their jury fees accounts.
  • Staffing cuts would extend to roughly 10 percent of the court security officers. Reductions of this magnitude could create security vulnerabilities throughout the federal court system by impairing the ability of the U.S. Marshals Service to provide adequate security for court facilities, court personnel, and the public.
  • Improvements in court security would be considerably delayed. A significant reduction in court security personnel, coupled with a funding shortfall for systems and equipment, could necessitate the closing of some courthouse entrances, which would result in long security screening lines for jurors, litigants, and the public as well as delays in court proceedings.
State courts are already facing and dealing with these same kinds of challenges. In the last three fiscal years, 42 states have reduced their judicial budgets, with cuts in some jurisdictions totaling more than 12 percent. According to the National Center for State Courts, in the last three years, 34 states have laid off court employees, 39 have stopped filling clerk vacancies, and 23 have reduced courts’ operating hours.

At the federal level, it’s possible that, between the November elections and January 2013, the lame-duck Congress and the President may still reach a grand bargain on spending and taxes—an agreement that will prevent these sweeping automatic cuts from taking hold, but will still impose some spending cuts.

Bruce Moyer is government relations counsel for the FBA. © 2012 Bruce Moyer. All rights reserved.

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