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85–452 PDF 2013

S. HRG. 113–109 

SEQUESTERING JUSTICE: HOW THE BUDGET 

CRISIS IS UNDERMINING OUR COURTS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON BANKRUPTCY 

AND THE COURTS 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

JULY 23, 2013 

Serial No. J–113–21 

Printed for the Use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

MAZIE HIRONO, Hawaii 

CHUCK GRASSLEY, Iowa, Ranking Member 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TED CRUZ, Texas 

JEFF FLAKE, Arizona 

BRUCE A. COHEN, Chief Counsel and Staff Director 

DAVID YOUNG, Republican Chief of Staff 

SUBCOMMITTEE ON BANKRUPTCY AND THE COURTS

CHRISTOPHER A. COONS, Delaware, Chairman 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

JEFF SESSIONS, Alabama, Ranking Member 

CHUCK GRASSLEY, Iowa 

JEFF FLAKE, Arizona 

TED CRUZ, Texas 

TED SCHROEDER, Democratic Chief Counsel/Staff Director 

RICK DEARBORN, Republican Chief of Staff 
(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Coons, Hon. Christopher, a U.S. Senator from the State of Delaware ............... 1 

prepared statement ..........................................................................................

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 3 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 70 

WITNESSES 

Witness List ............................................................................................................. 31 

Gibbons, Hon. Julia S., Chair, Committee on the Budget of the Judicial 

Conference of the United States, Memphis, Tennessee .................................... 5 

prepared statement .......................................................................................... 32 

Allen, W. West, Chair, Government Relations Committee, Federal Bar Association, Las Vegas, Nevada ................................................................................. 7 

prepared statement .......................................................................................... 42 

Nachmanoff, Michael S., Federal Public Defender, Eastern District of Virginia, Alexandria, Virginia .................................................................................. 10 

prepared statement .......................................................................................... 52 

QUESTIONS AND ANSWERS 

Questions from Hon. Al Franken for W. West Allen, Hon. Julia S. Gibbons, 

and Michael S. Nachmanoff ................................................................................ 72 

Questions from Hon. Jeff Sessions for Hon. Julia S. Gibbons and Michael 

Nachmanoff ........................................................................................................... 75 

Responses of W. West Allen to Questions Submitted by Senator Al Franken ... 77 

Responses of Hon. Julia S. Gibbons to Questions Submitted by Senator Jeff 

Sessions ................................................................................................................. 79 

Responses of Hon. Julia S. Gibbons to Questions Submitted by Senator Al 

Franken ................................................................................................................. 87 

Responses of Michael S. Nachmanoff to Questions Submitted by Senator 

Al Franken ............................................................................................................ 92 

Responses of Michael S. Nachmanoff to Questions Submitted by Senator 

Jeff Sessions ......................................................................................................... 96 

SUBMISSIONS FOR THE RECORD 

ACLU et al. Letter to Senators Coons and Sessions ............................................ 99 

Blogging U.S. Judge Sounds Off on Budget Cuts, Peter Hardin, May 21, 

2013 ....................................................................................................................... 101

Budget Cuts Start to Hurt Courts, The Blog of LegalTimes, March 29, 2013 ... 102 

Budget Ax Falls and Ball Is in His Court, Erin Grace, World-Herald Columnist ................................................................................................................... 104 

Chief Justice Roberts: Sequester Cuts Hitting Federal Judiciary ‘Hard’ ........... 107 

Memorandum on Cost Savings Initiatives, United States Bankruptcy Court, 

Eastern District of North Carolina ..................................................................... 109 

Courthouse Safety Harmed by Sequestration, Bar Group Says, Bloomberg, 

June 28, 2013 ....................................................................................................... 114 

District Court of Nebraska, Letter from Laurie Smith Camp, Chief U.S. 

District Judge, to Hon. Robert S. Lasnik and Hon. Rodney W. Sippel ........... 115 

Letter from Richard Coughlin, Federal Public Defender, District of New Jersey, to Hon. Jerome B. Simandle, Chief U.S. District Judge ........................... 117 
Page

IV 

January–February 2013: Federal Courts Brace for Budget Cuts, Federal Bar 

Association, January/February 2012 .................................................................. 122 

Federal Defender Fact Sheet, July 16, 2013 ......................................................... 124 

Federal Court in Delaware Affected by Sequester, WDEL Newstalk Radio, 

March 14, 2013 ..................................................................................................... 134 

Federal Public Defender Edson A. Bostic Letter to Hon. Gregory M. Sleet ....... 135 

Federal Public Defender Reuben Camper Cahn Letter to Hon. Barry Ted 

Moskowitz ............................................................................................................. 141 

Federal Public Defender Thomas W. Hillier, II Letter to Hon. Marsha J. 

Pechman ................................................................................................................ 144 

Federal Public Defender Steven G. Kalar Letter to Hon. Claudia Wilken ......... 147 

Federal Public Defender Sean K. Kennedy Letter to Hon. George H. King ....... 155 

Federal Public Defender Michael S. Nachmanoff Letter to Hon. Eric H. Holder, Jr. ..................................................................................................................... 158 

Budget Cuts Cause Delays, Limit Access to Justice, Gavel Grab, April 29, 

2013 ....................................................................................................................... 160

Impact of Sequestration Felt in Public Defender’s Office, Gavel Grab, July 

11, 2013 ................................................................................................................. 161 

How the Sequester Is Holding Up Our Legal System, The Atlantic, July 

25, 2013 ................................................................................................................. 163 

Letter from Bert Brandenberg, Executive Director, Justice at Stake, to Hon. 

Harry Reid, Hon. Mitch McConnell, Hon. John Boehner, and Hon. Nancy 

Pelosi, March 19, 2013 ......................................................................................... 168 

Letter from Bert Brandenberg, Executive Director, Justice at Stake, to Hon. 

Harry Reid, Hon. Mitch McConnell, Hon. John Boehner, and Hon. Nancy 

Pelosi, November 8, 2012 .................................................................................... 170 

Letter from Bert Brandenberg, Executive Director, Justice at Stake, to Hon. 

Patrick Leahy, Hon. Chuck Grassley, Hon. Lamar Smith, and Hon. John 

Conyers, Jr. ........................................................................................................... 172 

Letter to Hon. Sylvia Mathews Burwell, Director, Office of Management and 

Budget, from Hon. Julia S. Gibbons ................................................................... 174 

Letter to Hon. Christopher Coons from Liz Seaton, Acting Executive Director, 

Justice at Stake, July 23, 2013 ........................................................................... 181 

Justice Group Supports Judiciary’s Request for $73M in Emergency Funds, 

Legal Newsline, May 29, 2013 ............................................................................ 183 

Justice Sequestered, The Editorial Board, The New York Times, July 20, 

2012 ....................................................................................................................... 185

Letter to Judge William B. Traxler, Jr., from Hon. James, K. Bredar, Hon. 

Kathleen M. Williams, Hon. Jeffrey Viken, Hon. Paul D. Borman, and 

Hon. Raymond P. Moore ...................................................................................... 187 

Letter to the President from the Federal Bar Council Regarding the Sequester 

and Press Release, June 27, 2013 ....................................................................... 190 

Middle District of Pennsylvania Letter from Public Defender James V. Wade 

to Hon. Yvette Kane, Chief Judge, U.S. District Court .................................... 198 

Letter from Robert Gay Guthrie, President, National Association of Assistant 

United States Attorneys, to Hon. Chris Coons and Hon. Jeff Sessions, 

July 22, 2013 ........................................................................................................ 203 

New York State Bar Association Letter to Hon. Chris Coons, July 23, 2013 ..... 205 

Senate Hearing Statement from Former Federal Judges and Prosecutors, 

July 23, 2013 ........................................................................................................ 206 

FY 2013 Sequestration Impacts on the Federal Judiciary; Effects on Bankruptcy Court, Eastern District of North Carolina, June 11, 2013 ................... 212 

Sequestration of Justice, The New York Times Editorial Board, April 11, 

2013 ....................................................................................................................... 217

Statement of U.S. Bankruptcy Court, District of Delaware, Judge Kevin 

Gross, July 23, 2013 ............................................................................................. 218 

Letter from Federal Public Defender Lisa B. Freeland to Hon. Theodore 

A. McKee, July 18, 2013 ...................................................................................... 220 

Letter from Federal Public Defender Katherian D. Roe to Hon. Al Franken, 

July 19, 2013 ........................................................................................................ 225 

Letter from Hon. Michael J. Davis, Chief Judge, U.S. District Court, to 

Hon, William B. Traxler, Chief Judge, U.S. Court of Appeals for the Fourth 

Circuit ................................................................................................................... 227 

Letter to Hon. Thomas F. Hogan from Eric H. Holder, Jr., U.S. Attorney 

General .................................................................................................................. 230 
(1) 

SEQUESTERING JUSTICE: HOW THE BUDGET 

CRISIS IS UNDERMINING OUR COURTS 

TUESDAY, JULY 23, 2013 

U.S. SENATE, SUBCOMMITTEE ON BANKRUPTCY AND THE COURTS, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 3:09 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Christopher Coons, 

Chairman of the Subcommittee, presiding. 

Present: Senators Coons, Durbin, Whitehouse, Klobuchar, and 

Sessions. 

OPENING STATEMENT OF HON. CHRISTOPHER COONS, A U.S. 

SENATOR FROM THE STATE OF DELAWARE 

Chairman COONS. I call this hearing to order. Welcome to this 

hearing of the Judiciary Committee’s Subcommittee on Bankruptcy 

and the Courts. I am pleased today to be joined by my Ranking 

Member, Senator Jeff Sessions. Senator Sessions has either been 

the Chairman or Ranking Member of this Subcommittee since 2001 

with the brief exception of two years in the 111th Congress, during 

which time he served as Ranking Member of the Full Committee. 

His experience in overseeing the judiciary to ensure its efficient operation is unequaled, and I look forward to working with him as 

we continue that work together in this Congress. 

Broadly speaking, America’s judiciary stands as a shining example of the genius of our founders. Vested with ‘‘the judicial power 

of the United States,’’ our Federal courts act as a check upon executive or legislative overreach and as a neutral arbiter between parties in disputes. The limitations on Government set by our Constitution as well as the liberty interests reserved to the States and 

the people ultimately rely on our judiciary to enforce them. 

When an individual is wronged or a business dispute arises, they 

can turn to our courts, get a fair hearing and a just resolution, and 

move forward with their lives. When the Federal Government 

seeks to deprive any American of life or liberty, it is the courts, and 

often the Federal public defenders they employ, that make sure the 

Government is forced to meet its burden of establishing guilt beyond a reasonable doubt. 

When the sequester was conceived, the across-the-board Federal 

budget cut that it causes was thought to be so dangerous, so reckless, that it would force the Congress to responsibly confront our 

Nation’s spiraling deficits. Congress has not, however, acted, and 

the result has been an erosion of the ability of our Government to 
2 

do the people’s business. I fear that continued, sustained, and indiscriminate cuts to discretionary Federal spending could push us 

to a point of crisis. 

The judiciary has looked at a variety of measures to address this 

new budgetary reality, and very few of them come without significant pain to the individuals, the litigants, the businesses, and others who rely on them. One proposal, to simply not schedule civil 

jury trials in the month of September, would effectively impose a 

30-day uncertainty tax on every civil litigant before the Federal 

courts. 

A judge in Nebraska has recently threatened to dismiss all socalled low-priority immigration status crimes because of a lack of 

capacity. 

In New York, deep furlough cuts to the public defender’s office 

caused a delay of the criminal trial for Osama bin Laden’s son-inlaw and former al Qaeda spokesman, Suleiman Abu Ghaith. 

In Delaware, my home State, the sequester has meant lengthy 

employee furloughs at the clerk’s office of our bankruptcy court, resulting in reduced customer service hours and the postponement of 

infrastructure, of IT upgrades that would aid the efficient resolution of those important cases. The cuts have not been deeper only 

because that office is already working with 40 percent fewer staff, 

despite an increasing caseload, including many of the time-intensive mega cases important to our country’s recovery. 

The Delaware Federal Public Defender’s Office has had to furlough its defenders 15 days this year so far, essentially canceling 

the criminal docket every Friday for the rest of this year. Every 

day the public defenders are furloughed is another day defendants 

spend in pretrial incarceration at a cost to taxpayers of more than 

$100 a day. The defender’s office has also had to sharply curtail expenditures for needed investigators and experts, which may be 

leading to a decrease in the quality of representation, leading to 

longer prison terms and more avoidable taxpayer expense. 

And if we do not act, frankly, the picture looking forward is still 

bleaker. Next year, the Federal Public Defender’s offices nationwide are scheduled to take a 23-percent budget cut. In Delaware, 

this means a third of the office would be laid off, but even that will 

not be enough, so the remaining employees would face between 26 

and 60 furlough days, and funding for experts and investigation 

services would not be restored. 

Fifty years ago this year, the U.S. Supreme Court gave substance 

to the Sixth Amendment’s right to counsel in criminal cases when 

in Gideon v. Wainwright it ruled the Government could not threaten indigent individuals with prison terms unless it also provided 

them with an attorney. The Federal defenders’ services are the embodiment of that vital legacy. 

The sequester is slowing the pace, increasing the cost, and potentially eroding the quality of the delivery of justice in our country. 

Congress’ disappointing inability so far to responsibly replace the 

sequester and save the courts from these Draconian cuts is eroding 

our constitutional rights. 

Individuals depend on the courts to be there when they need 

them, to seek relief from discrimination, to resolve complicated 

commercial disputes, and enable parties to stop fighting and get to 
3 

work growing our economy. The irony is that cuts to the judicial 

branch that undermine its ability to do its job do not actually save 

taxpayers any money. The cases will still be adjudicated, just at a 

slower pace and higher cost. The Constitution, as we all know, still 

guarantees the right to effective assistance of counsel, so courts 

will inevitably have to appoint a greater number of panel attorneys 

who, studies suggest, do the job for 10 to 30 cents more on the dollar. 

Yes, our Nation does find itself in fiscal crisis, and every branch 

of Government must do its part. No one disputes that. The judiciary need not be exempted and is already working, as we will hear, 

to reduce expenses by selling or renting excess office space and canceling unnecessary training or conferences. 

Any expenses beyond core mission take a second priority and 

need to be looked at closely all across our Government. That said, 

we are not going to be able to solve or even noticeably mitigate the 

national fiscal crisis on the backs of the courts since they spend 

just 19 cents of every Federal $100 spent. Nineteen cents for one 

whole branch of our Government strikes me as a pretty good deal, 

particularly for a branch that does its job so well. In my view, the 

indiscriminate cuts of the sequester are truly penny wise and 

pound foolish. 

Dr. King once famously said, ‘‘Justice too long delayed is justice 

denied.’’ I worry that by delaying the delivery of justice, the sequester may be denying it to too many Americans. 

I look forward to the testimony of our panel today, and I hope 

you will shed greater light on what the judiciary has done, what 

it would be forced to do if Congress continues to neglect its duty 

to responsibly replace the sequester. 

With that, I would like to invite an opening comment from my 

Ranking Member, Senator Sessions. Senator Sessions. 

OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S. 

SENATOR FROM THE STATE OF ALABAMA 

Senator SESSIONS. Thank you. I appreciate the opportunity to 

talk about the financial problems that the court is facing as a result of the cuts under the Budget Control Act. If you will recall, we 

are on an unsustainable debt course, as everyone agrees. In August 

2011, a controversy arose over raising the debt ceiling. We had already hit the debt ceiling. And so the agreement was finally 

reached and passed into law. Both Houses supported it. The President supported it. He suggested, the President did, or his aides, the 

sequester mechanism. And that passed. 

So after it passed, instead of spending going up from the current 

$37 trillion over 10 years, which would be current law, it was projected to go up to $47 trillion over 10 years. And as the reductions 

went into place, we would increase spending from $37 to $45 trillion. And, of course, the problem we are facing is that cuts were 

directed at too many areas, perhaps more heavily than should be, 

and whole areas were protected from any cuts at all. So cuts were 

not balanced. We need a balanced approach, colleagues, is what we 

need—a balanced approach in reduction of spending and tightening 

of our belt. So the courts are one of the areas that took a substantial reduction in spending. 
4 

Well, I do not quite understand how we are having 25-, 30-percent cuts. It is not that much being cut. So somebody somewhere 

in the agencies and departments or maybe Congress is directing 

that certain agencies take more reductions than the Administrative 

Office of the Courts has taken as a whole, number one. 

Number two, I think perhaps things are not as bad as feared because it looks to me like the House marked up to the President’s 

request on the AOC, which should avoid some of the problems, and 

maybe that will help. And I understand you are asking for about 

$70 million more to finish this year, Judge Gibbons, which is not 

an unreasonable request—I will say it that way—although if we 

start making exceptions, we have got a lot of other agencies and 

departments that would like to have a supplemental too. 

So I would just say to you, with regard to the Budget Control Act 

and the sequester, Congress voted—and the American people 

seemed quite comfortable with the idea—that we can reduce spending for a little while around here instead of having steady growth. 

And they are not panicked, and I know we have stories that there 

is not enough copy paper in a clerk’s office somewhere. Well, I 

would say the clerk—you need a new clerk. It is like those school 

people that require the students to bring in toilet paper because 

they cannot find enough money to do that or fix their roof. Now, 

that is mismanagement to me. 

So you have been asked, though, in your defense, to take reductions more rapidly than smart people would ask you to take it. It 

is sort of an aberrational thing as part of this cut. And I think it 

has fallen pretty hard, and I am hearing some stories that I am 

willing to look at. 

So I guess just to come back to the fundamentals, from what I 

am hearing, the courts in many areas are being smart. They are 

working hard. They are finding ways to save money without impacting the quality of justice in America. And for that you should 

be saluted. If you cannot maintain spending—if you cannot maintain justice at that level, we hope you will keep us informed, and 

so maybe Congress, we can do something about it. But I think the 

title of this—what is it?—‘‘Sequestering Justice,’’ is a bit over the 

top from my perspective. I think most courts are delivering justice 

today just as well as they were before these cuts took place. I do 

not have any doubt of it. 

When I became United States Attorney in 1981, the first two or 

three years under President Reagan we could not hire anybody. 

There was a total hiring freeze, and other expenditures were cut. 

And I do not think the Government sank into the ocean. It was still 

functioning. 

Finally, I truly believe with the Chairman that the strength of 

the American experience is our rule of law, the confidence that 

Americans have that justice is done, particularly in Federal courts, 

and that people expect that, and we want to be sure that that is 

maintained. It requires a certain amount of financial support, and 

I think that you have every right to come to Congress and express 

concerns if you think the level of support is so low that you are not 

able to maintain the minimum—you know, the standards of justice 

that we believe are necessary. 
5 

So, Mr. Chairman, thank you. I think it is good to have this discussion. I am hearing from some of my friends in Alabama that 

they think cuts of public defenders and all are more than they 

should be, and so I am anxious to hear some of the details. 

Chairman COONS. Thank you, Senator Sessions. 

Before we delve into witness testimony, please rise, if you would, 

while I administer the oath, which is the custom of this Committee. 

Please raise your right hand and repeat after me: Do you solemnly 

swear that the testimony you are about to give to this Committee 

will be the truth, the whole truth, and nothing but the truth, so 

help you God? 

Judge GIBBONS. I do. 

Mr. ALLEN. I do. 

Mr. NACHMANOFF. I do. 

Chairman COONS. Thank you, and let the record show the witnesses have answered in the affirmative. 

Our first witness today is Judge Julia Gibbons. Judge Gibbons 

is a judge for the Sixth Circuit Court of Appeals. She was confirmed to that seat unanimously in 2002 after serving 19 years as 

a district court judge for the Western District of Tennessee. She is 

also Chair of the Judicial Conference of the United States Committee on the Budget and so is well and deeply versed in the funding issues faced by the courts and can answer, I believe, many of 

the implicit questions raised in the opening statements from both 

myself and Senator Sessions. 

Judge Gibbons, please proceed. 

STATEMENT OF THE HONORABLE JULIA S. GIBBONS, CHAIR, 

COMMITTEE ON THE BUDGET OF THE JUDICIAL CONFERENCE OF THE UNITED STATES, MEMPHIS, TENNESSEE 

Judge GIBBONS. Thank you. Chairman Coons, Senator Sessions, 

Members of the Subcommittee, I appear before you as Chair of the 

Judicial Conference Committee on the Budget. The judiciary very 

much appreciates the invitation to discuss the financial crisis facing the courts. 

Senator Coons, I am pleased that judges from your home circuit 

are here today: Chief Judge Ted McKee, Judge Tom Ambro from 

your home State. The Third Circuit has felt as much pain as the 

rest of the judiciary, but it’s within-the-circuit coordination, and efforts to address the current crisis have been stellar. 

I also would like to recognize Judge John Bates right here behind 

me, the new Director of the Administrative Office of the U.S. 

Courts, who comes to the AO after serving on the D.C. Federal District Court. 

The $350 million, 5-percent across-the-board sequestration cuts 

have been devastating to Federal court operations. To address sequestration, the Executive Committee of the Judicial Conference 

implemented a number of emergency measures for FY 2013. Many 

of these have been painful and difficult to implement and reflect 

one-time reductions that cannot be repeated if future funding levels 

remain flat or decline. We estimate clerks of court and probation 

and pretrial services offices will downsize by as many as 1,000 staff 

during 2013 and implement 8,600 furlough days. Courts have already reduced staff by nearly 2,100 employees between July 2011 
6 

and the present, a 10-percent staffing loss over this two-year period 

and additional losses by year end are expected. The staffing losses, 

we believe, are resulting in the slower processing of civil and bankruptcy cases which will impact individuals, small businesses, and 

corporations seeking to resolve disputes in the Federal courts. 

While it is useful to measure the impact of cuts in terms of employee or program loss, ultimately the primary consequence of sequestration is not internal to the courts. Instead, it is the harm to 

commerce, orderly and prompt resolution of disputes, public safety, 

and constitutional rights ranging from effective representation by 

counsel for criminal defendants to jury trial. Indeed, if funding levels remain flat or decline, the result compromises the constitutional 

mission of the courts. 

I want to discuss in a little more detail two areas—public safety 

and effective representation by counsel. 

The judiciary’s nearly 6,000 probation and pretrial services officers play an important role in ensuring public safety. They supervise convicted individuals in the community after they have been 

released from prison and supervise defendants awaiting trial. Staffing in these offices is down 7 percent since July 2011, meaning less 

deterrence, detection, and response to possible criminal activity by 

Federal defendants and offenders in the community. 

Particularly troubling are cuts that have been made to drug and 

mental health testing and treatment services and to electronic and 

GPS monitoring. These cuts impair our officers’ ability to keep the 

public safe. 

Turning to the Defender Services Program, sequestration threatens the judiciary’s ability to fulfill a fundamental right guaranteed 

by the Sixth Amendment: the right to court-appointed counsel for 

criminal defendants who lack the financial resources to hire an attorney. There are no easy answers when it comes to applying cuts 

to this program. Cuts to the Federal defenders threaten delays in 

the progress of cases, which may violate constitutional and statutory speedy trial mandates, and may cause increased panel representations, which drive up costs. 

Deferring panel attorney payments pushes obligations that must 

be paid to appropriations for the following year, a situation not attractive to us or our appropriators. It also may make obtaining attorneys to take appointments difficult. 

We have been asked why we cannot transfer funds from other judiciary accounts to help the Federal defenders. While we have the 

authority to transfer funds, we do not have the funding to do so. 

We have no available surplus funding. 

There has been mention of our supplemental appropriations request. We do ask for $73 million to address critical needs in the 

courts and the Defender Program. We hope Congress will give 

strong consideration to this request. 

As far as 2014 funding is concerned, Chairman Coons, we received very positive news this morning about the Senate Subcommittee’s markup of the bill in which we are funded. You are a 

Member of that Subcommittee, we know, and we appreciate the 

Subcommittee’s making judiciary funding a priority. 

Still, given the sharp disagreements between the White House 

and the Senate and the House on spending matters, we are very 
7 

concerned about future funding. If the funding disputes cannot be 

resolved and Congress instead chooses to pursue a continuing resolution, we would appreciate this Subcommittee’s support of a funding anomaly or exception that would fund us above a hard freeze 

in 2014. Flat funding at sequestration levels would exacerbate the 

current situation and irreparably damage the system that is a hallmark of our liberty around the world. 

We continue to be good stewards of the taxpayers’ dollars and 

seek ways to reduce costs, as we have done aggressively for the last 

decade. But no amount of cost containment will offset the major reductions from sequestration. We look to Congress to recognize the 

Judiciary’s critical function in our Government, and its value to the 

democracy by providing the funding we need to do our work. 

Thank you, and I am happy to answer questions. 

[The prepared statement of Judge Gibbons appears as a submission for the record.] 

Chairman COONS. Thank you, Judge Gibbons. 

Before I turn to our next witness, I would like to both join you 

in welcoming the members of the judiciary, in particular from the 

Third Circuit, who have joined us and ask consent to enter into a 

record a letter from the Budget Committee of the Third Circuit 

Court of Appeals and from the National Association of Assistant 

United States Attorneys on the damage to the courts and the administration of justice caused by the sequester. 

[The letters appear as submissions for the record.] 

Chairman COONS. Our next witness is W. West Allen. Mr. Allen 

served as chair of the Government Relations Committee for the 

Federal Bar Association. Mr. Allen is a partner in the Las Vegas 

office of Lewis and Roca and is an IP lawyer who has practiced extensively before U.S. Federal courts and the U.S. PTO. Mr. Allen 

is a graduate of the John Marshall Law School in Chicago, where 

he served as executive managing editor for the Journal of Computer and Informational Law. 

Mr. Allen, welcome. Please proceed. 

STATEMENT OF W. WEST ALLEN, CHAIR, GOVERNMENT RELATIONS COMMITTEE, FEDERAL BAR ASSOCIATION, LAS 

VEGAS, NEVADA 

Mr. ALLEN. Thank you. Mr. Chairman, Ranking Member Sessions, it is an opportunity and privilege to be with you today and 

give you some testimony. 

My assignment here today is really on behalf of not just the 

16,000 lawyers who are directly interested in the Federal court system, but really the people and the businesses we represent. My 

comments, therefore, will be directed as to the people and their 

right for a strong and independent American judiciary that upholds 

the rule of law. I know we all share that interest. 

It truly is we, the people, both individuals and our businesses, 

who seek and expect justice in America’s Federal courts. It is the 

ability of our courts to provide fair, prompt, and respected justice. 

That is one of the hallmarks, the great hallmarks of our Nation. 

Our Founding Fathers wisely recognized the compelling need for a 

strong Federal judiciary, established as a separate, co-equal branch 

of Government, sufficiently independent to assure the rule of law. 
8 

But independence and promptness of decision making are imperiled when the Federal judiciary lacks the resources to properly discharge its constitutional responsibilities. Indeed, the long tradition 

of excellence in the American judiciary is in jeopardy. As an attorney who practices there regularly, I wanted to focus on three 

points. 

The first is that there are true economic and cost implications related to sequestration of the Federal courts that affect our American commerce, American businesses, and individuals. 

Second, there are the freedom-related implications of our rights 

under the Constitution to a safe society, to general welfare, to the 

Constitution’s Sixth Amendment right for the accused to be represented. 

And, finally, the crisis really has given rise to a question about 

our national identity and its respect for the American judiciary, 

that the people ordained and established as a coordinate branch of 

Government. They expect and hope that it will be properly funded 

at all times. 

The first point is economic. Quite simply, the sequestration’s 

greatest impact has been, for practicing attorneys and their clients, 

delays. Delays in judicial proceedings, reduced public access, and 

fewer operational hours due to budget cuts are having their effect. 

Reduced hours of staffing, delays in judicial proceedings are commonplace. Indeed, waiting for judicial rulings on relatively simple 

motions for six months, eight months, even up to a year is not uncommon. It has to be explained to clients all the time. 

The ever-expanding jurisdiction of courts only exacerbates the 

problem. We note that in 2012 there were 1,427 cases per judge in, 

for example, the Eastern District of California while the recommended number of these cases per judge should be closer to 400. 

Immigration prosecutions on our border have increased 52.8 percent over levels just reported five years ago. The Federal judges in 

those districts are simply absorbing the extra caseload. 

There are significant delays, as, Chairman Coons, you understand, in bankruptcy court. Your court is the busiest in the country 

for Chapter 11 filings. Since 2012, Chapter 11 filings have increased 38 percent, yet the budget has decreased their resources— 

the budget has cut them 28 percent over the past three years. 

These changes in bankruptcy court are affecting the livelihoods of 

debtor companies, employees, as well as property rights of creditors 

and stakeholders in some of our Nation’s most important enterprises that depend on the bankruptcy court’s ability to administer 

justice in a timely fashion. 

Mr. Chairman, the increasing delays and uncertainties of our 

Federal courts are having an economically deleterious effect upon 

U.S. businesses and individuals. It is simply more expensive when 

there are delays. 

The second point is that the Federal courts’ sequestration effects 

are having true implications for the people’s right under the Constitution, both for general welfare, having a safe, secure society 

that is available, that we do not have to worry about the criminally 

accused doing things, whether they are in pretrial stages or posttrial stages, that would jeopardize American public safety. And 

likewise related to that is the constitutional issue of the Sixth 
9 

Amendment and our tradition of the Sixth Amendment and looking 

after the criminally accused and their right to counsel. 

As to the issues with safety, there is a concern that probation 

and pretrial service officers are unable to properly monitor the activities and whereabouts of offenders and convicted felons. We are 

concerned that increasing numbers of probation officers are encountering a diminished ability to closely supervise offenders and ensure compliance with court orders. Likewise, pretrial services offices are becoming understaffed, undertrained, and underfunded as 

a result of sequestration. 

The Sixth Amendment issue is well understood. I will leave that 

to Mr. Nachmanoff and others, but the tradition that we have in 

the United States of America is that, regardless of who you are, 

your ability to pay, if you are accused of a crime, you have a right 

to an attorney regardless of your means. And that right is in some 

instances being jeopardized, at least with delays and the requirements of the Speedy Trial Act. 

And, finally, my closing point is that the effects of Federal courts 

are having a profound implication on our national identity and its 

long tradition of a strong and independent American judiciary. We 

note that the excellence of the American judiciary is truly at risk. 

Justice Kennedy eloquently explained, ‘‘If judicial excellence is cast 

upon a sea of congressional indifference, the rule of law is imperiled.’’ 

We have seen that firsthand. We genuinely as litigators, as clients, have seen that when there is inadequate funding, the American judiciary does suffer. The complete independence of courts of 

justice is peculiarly essential to our Constitution, and it is the express constitutional responsibility of Congress to safeguard this 

independence by adequately funding our Federal courts. We certainly would exhort the Judiciary Committee and Congress to assure the delivery of sufficient funds that will sustain the people’s 

judiciary, the American judiciary, and its long tradition of excellence. 

Thank you for your consideration, and I would be happy to answer any questions. 

[The prepared statement of Mr. Allen appears as a submission 

for the record.] 

Chairman COONS. Thank you very much, Mr. Allen, for your testimony. 

Next I will turn to Mr. Nachmanoff, if I might. Our final witness, 

Michael Nachmanoff, has been a Federal Public Defender for the 

Eastern District of Virginia since 2007 and has been an assistant 

public defender in that office since 2002. Mr. Nachmanoff successfully argued the case of Kimbrough v. United States, a case dealing 

with excessive Sentencing Guidelines ranges for crack cocaine, an 

issue that has since been addressed legislatively thanks to the 

leadership of two of my colleagues on this Committee, in particular 

Senator Sessions and Senator Durbin. Like Judge Gibbons, Mr. 

Nachmanoff is a graduate of the University of Virginia Law School 

where he served as notes editor on the Law Review. 

Mr. Nachmanoff, please proceed. 
10 

STATEMENT OF MICHAEL S. NACHMANOFF, FEDERAL PUBLIC 

DEFENDER, EASTERN DISTRICT OF VIRGINIA, ALEXANDRIA, 

VIRGINIA 

Mr. NACHMANOFF. Thank you, Mr. Chairman and Senator Sessions. Thank you for holding this hearing and for providing me 

with the opportunity to speak on behalf of the Federal Public and 

Community Defenders. I appreciate very much the comments from 

you, Mr. Chairman, and from Senator Sessions, and also the expressions of support and the recognition of the particular problem 

that Federal and Community Defenders have and the support from 

Judge Gibbons and from the Federal Bar Association and Mr. 

Allen. We appreciate the opportunity to be here. 

Mr. Chairman, you made reference to the Gideon case, and it is 

an irony that we are discussing the crisis that faces Federal Defenders exactly 50 years after the Gideon case was decided, a decision that really breathed life into the fundamental principle that 

we all cherish of equal access to justice under the law. 

But there is a bigger irony here in some ways—that this funding 

crisis for Federal Defenders comes at a time when the Government 

is so focused on making sure that Government services provide 

cost-efficient and quality services—because we are on the verge of 

being crippled and we are a model of quality and efficiency, and 

that by reducing the staffing of Federal Defenders, ultimately the 

Government will be spending more money. Indigent costs will rise. 

‘‘Why is that?’’ Senator Sessions asked about why we are being 

hit so hard, and the answer to that is, first, that we are a constitutional mandate. We do not control the cases that we get. We do not 

control what kinds of cases are brought. Of course, the Department 

of Justice decides on its priorities, the number of cases, the complexity of those cases, and where those cases are brought. We react 

to that. And our staffing is extremely lean. Ninety percent of our 

costs are fixed: salary, benefits, and rent. In the Eastern District 

of Virginia, my rent over the past 10 years that I have been in the 

office has almost doubled during that time. 

The remaining 10 percent of our expenses are case-related expenses. They are essential services that we provide: experts, investigation, case-related travel. We cannot do 80 percent of the work 

or even 90 percent of the work for our clients and meet our constitutional obligations. We cannot choose to do less for our clients 

and spend less money in order to do what the Constitution demands. And for that reason, we have had to furlough employees, 

to lay off employees, after cutting out every other expense that we 

could, including new hires, including replacement of needed equipment, including training. 

We work with the CJA Panel. The CJA Panel is a critical part 

of the indigent defense system. Between the two groups, Federal 

Defenders and CJA lawyers, we represent 90 percent of all criminal 

defendants in the Federal court. We provide support to the panel 

through training, through outreach. That saves money for the Government. They are able to do their jobs more efficiently. 

As we have been cut as a result of the sequester, we have had 

to furlough our employees. We have had to eliminate training. We 

have had to cut ourselves to the bone. Many defenders have al-
11 

ready laid off staff. My colleague from Arizona will be at 25 percent 

less staffing by October 1st. 

But that is not the worst that we face. Federal defenders are confronted—if there is flat funding and we are operating not on the 

marks from the House and the Senate (which we are very grateful 

for, both the Senate and the House), but on a continuing resolution—we are facing eliminating up to 35 percent or more of our 

staffing, and that is because the alternative is to be faced with 

weeks upon weeks of furloughs. In the Eastern District of Virginia, 

I would be faced with, if I kept my staff on board, furloughing for 

97 days. It is simply untenable. It is untenable as a manager to 

do that to my employees. It is impossible for our clients who have 

constitutional rights and speedy trial rights that must be observed. 

And it is inappropriate for the public. 

The Department of Justice was fortunate. They were able to reallocate funds and avoid furloughs. That has created an imbalance. 

Senator Sessions, as you referenced, balance is critical in the 

courts. We have faced furloughs and layoffs. They (Department of 

Justice) have been protected this year. In the coming year, if we 

face the loss of a third of our staff and the Department of Justice 

is funded, that imbalance will be greater. 

I have been very proud to meet with foreign judges on a regular 

basis over the last several years with my U.S. Attorney to discuss 

the rule of law and the rights that we afford defendants in Federal 

court. We do that for judges who come from parts of the world 

where the rule of law is weak and the protections afforded criminal 

defendants are not strong. And I have always been proud to have 

those discussions and see how those judges from other parts of the 

world have reacted and been impressed with the degree of professionalism and our fidelity to the Constitution. It will be much harder for me to have that conversation with foreign judges this year 

as I look at the prospect of having to lay off critical staff, and we 

ask for your help. 

Thank you. 

[The prepared statement of Mr. Nachmanoff appears as a submission for the record.] 

Chairman COONS. Thank you very much, Mr. Nachmanoff. 

We will now proceed with five-minute rounds of questioning, and 

I will begin, if I might, with Judge Gibbons. 

Judge Gibbons, thank you for your testimony today. Just tell me 

at the beginning, if you might, in your 19 years as a trial court 

judge, can you speak about the relative importance of Federal Public Defenders in ensuring the quality of justice and the quality of 

the judging in which you were directly involved? 

Judge GIBBONS. I think there is general agreement throughout 

the judiciary, and particularly from trial judges who do see the 

work of the Federal defenders up close every day, that the Federal 

defender organizations do an excellent job of representing criminal 

defendants in our courts. That is not to say we do not have many 

excellent panel attorneys, but obviously the contributions of someone who does the work full-time, often makes a career of the job, 

those sorts of contributions cannot be underestimated. They do extremely good work, and it is valuable work. 
12 

Chairman COONS. Well, Judge, thank you for the work that you 

have done to control costs in other areas that do not affect personnel. 

There have been some who have been critical of the judiciary’s 

building of courtroom space, and I would be interested in hearing 

what you have done to limit the footprint and the cost of court office space, and in particular, whether there are any policies or procedures of the GSA that make it difficult to achieve further savings 

through reduction of office space. 

Judge GIBBONS. I will try to give you the short answer, because 

we have been working on this problem since 2004, to mention a 

couple of our earlier efforts and then move pretty quickly to current efforts. 

Early on, we imposed kind of our own version of budget caps in 

each of the areas in our budget, and it was, in a way, a statement 

about what we were going to do to control the growth in space costs 

and other areas. That was an important goal for us and one that 

we were able to meet. 

We also had a major rent validation program where we started 

doing in-house auditing or monitoring of bills that the General 

Services Administration provided us, and we found many, many errors and many overcharges. 

With those efforts plus some other efforts like the revised asset 

management planning process and others, we were able to, we believe, avoid costs of about $400 million in the rent area. The AMP, 

or asset management planning process, is what is used now in 

identifying our courthouse construction needs. 

Today our focus has shifted toward attempts to reduce our space 

footprint. We have a goal of a three-percent reduction by 2018. Obviously anything we could do to accelerate that would be excellent. 

We are trying to move probation and pretrial services offices and 

other court offices that are in leased space back into courthouses 

whenever feasible in order to release space. 

Over this whole period of time, we have closed about 18 non-resident facilities. We are looking for other opportunities to close entire 

facilities and to release space. 

Courts are getting pretty creative about it. In my own court, the 

library is giving up all of its space and moving into clerk’s office 

space that was made available when we went to an automated case 

filing system and now we have extra space. 

Now, problems with the GSA. We have tried to have a constructive relationship with them, and we do, but there are just tensions 

inherent in the system. 

First, we believe that in many cases we are not charged an appropriate market rate for the facilities we rent. When they do construction for us, it seems to be at costs that are not really competitive and that are higher than we should pay. There tend to be construction delays that further drive up the cost. 

With respect to this effort to release space, it is a little hard 

sometimes to get GSA to take the space back in a timely manner. 

We, of course, have to continue to pay the rent. No discretion about 

that. Yet rent as a percentage of our budget has not been subject 

to sequestration or other cuts. So we have to pay that, and that is 

one of the reasons in accounts like ours that are so heavily people 
13 

and rent, that it is very hard when we have no way to quickly reduce our rent costs, that is one the reasons that the burden seems 

to fall so heavily, so fast on the personnel side of things. 

Chairman COONS. Thank you, Your Honor. I am, as a former 

clerk, loath to ever interrupt a judge, but forgive me, I am out of 

time for my first round of questioning. 

Judge GIBBONS. I am so sorry I took all your time. I warned you 

there was going to be a lot to say there. 

Chairman COONS. We will have several rounds. I have other 

questions for the other witnesses, but thank you, Your Honor. 

Senator Sessions. 

Senator SESSIONS. Judge Gibbons, I was just reminded at the 

time you were appointed to the Sixth Circuit, eight of the 16 seats 

were unfilled due to basically a systematic filibuster by Democratic 

colleagues. They have forgotten all that. A lot of these new ones 

were not here during that time. But it was really an extraordinary 

thing. 

Somehow you guys got by with eight instead of the authorized 

16 judges—— 

Judge GIBBONS. Well, I was not part of that—— 

Senator SESSIONS [continuing]. But this indicates to me that we 

have had other shortages around sometimes, and we have had to 

work our way through it and try to maintain the quality of justice 

at the same time. Would you agree that sometimes you can work 

your way through—— 

Judge GIBBONS. We have worked our way through a lot of those 

kinds of situations, particularly with judicial vacancies. That is 

easier than the staffing problems because you can rely on visiting 

judges. We have inter-circuit assignments. We have a lot of ways 

to work around that, but fewer ways to work around staffing 

issues. 

Senator SESSIONS. Let me ask you this: I have a little difficult 

time, Mr. Chairman, of understanding exactly—I should know 

this—how the sequester works. Looking at the judicial branch total 

discretionary—total outlays in 2007–2012, it was $6,000,470 million. In 2013, it went up a little to $6,548. And after the sequester, 

it was supposed to go—it was projected to go to that, I guess, 

$6,548, and it dropped to $6,241. So that would be about a $200 

or $300 million dollar reduction. 

Now, is that number the number that goes to the AOC and they 

distribute it? Or does Congress mandate each one of the sub-accounts and how much goes to each? 

Judge GIBBONS. Of course, we have four accounts under sequestration. Each of them had to be cut. As I understand it, the sequester—— 

Senator SESSIONS. Was that cut by Congress or the—— 

Judge GIBBONS. It is statutorily mandated that we had to take 

the cuts in each appropriation account. The five-percent sequestration cut, you will recall, was taken not from a regular-year appropriation but from a continuing resolution, which had already seriously jeopardized funding. 

Senator SESSIONS. Which is flat. 

Judge GIBBONS. Yes. And then we end up with these—for the judiciary, the total sequester is $350 million. We end up with these 
14 

areas of the budget where we cannot take the cuts. Rent would be 

one of them. Judges’ salaries are, frankly, another. You know—— 

Senator SESSIONS. Constitutionally protected. 

Judge GIBBONS. Constitutionally protected. So we end up with 

this situation where, you know, our workload, the defenders—not 

just the defenders’ workload, but the courts’ workload is completely 

controlled by what comes in our doors. It is not our own choice. We 

do not have optional programs we can eliminate like many parts 

of government. Everything we do is constitutionally and statutorily 

mandated. 

Senator SESSIONS. Right. Well, you have got the clerks’ offices, 

which have been exceedingly technologically advanced. People submit briefs by computer now without even coming and filing. And 

you have an incredibly high percentage of cases decided by pleas, 

civil and criminal. It is stunning, the percentage. What was it, 97 

percent of criminal cases now are disposed of by guilty pleas instead of trials? And likewise in civil cases are very high. 

It seems to me that there are opportunities to continue those 

trends in a more efficient way, and I am sure the clerks hate to 

lay off people, but as time goes by, if they can get by with fewer 

people, they need to work in that direction. 

Judge GIBBONS. You know, they have been working in that direction. 

Senator SESSIONS. I think they have, and I am just raising some 

of the good news out there. It is not all bad. 

Now, Mr. Nachmanoff, I hear, well, it could be 25 percent of our 

staff next year. I do not see how a five- percent reduction in funding can result in a 25-percent reduction in your staff of an office. 

It sounded like to me maybe the guys at the top are keeping their 

money and making all the cuts fall down there on the people who 

are doing the work. How can this be? 

Mr. NACHMANOFF. Well, I am not in a position—— 

Senator SESSIONS. And do you know—can you tell me what the 

numbers are, say, before the sequester took place and where you 

expect it to go in actual outlays for your agency? 

Mr. NACHMANOFF. Yes, Senator, I will do my best with the numbers. As a result of the Budget Control Act, in 2013 the Defender 

Services account was deprived of $52 million. So for our account, 

that was a very big number. It amounted to almost nine percent. 

But we were told of that almost halfway through the year. So for 

us as managers on the ground, we had to implement it in a shorter 

amount of time. 

Senator SESSIONS. It was passed much earlier than that, August 

2011, when the bill was passed. 

Mr. NACHMANOFF. Yes, Senator—— 

Senator SESSIONS. Why did they wait—like they did the Defense 

Department. They told the Defense Department—the President 

did—not to plan, was not going to happen, do not worry about it, 

or something. And now they had to do in seven months what 

should have been done in 12. 

Mr. NACHMANOFF. I understand—— 

Senator SESSIONS. Is that similar to you? Who told you not to 

plan for it? 
15 

Mr. NACHMANOFF. Well, we defenders in the field get guidance 

with regard to our budgets. We got interim budgets as a result of 

continuing resolutions, and we represented the clients that we represent. In the Eastern District of Virginia, we accept every case absent a conflict. In the Eastern District of Virginia, that comes out 

to somewhere around 70 or 75 percent of the cases, as I am sure 

you are aware. In districts where they bring large multi-defendant 

cases, the defender can only take one, and so that percentage 

might be lower, but that is not a function of turning away cases. 

And so we represented those clients as we were required to do, 

and we had to spend our funding in order to defend them. 

At a certain point, we were told that we would not have the 

money that was anticipated and, therefore, had to manage and still 

maintain our ethical obligations to our clients. 

In my district, we are currently in the midst of a multi-month 

death penalty trial involving alleged Somali pirates. You can imagine how cost-intensive that is for staffing and resources. That left 

us with no choice (since we were not going to abandon that client, 

and no one—not the court, nor our client, nor anyone else—would 

expect us to do) but to make up that shortfall through furloughs 

and through layoffs. 

We know now, going into 2014, that if there is another continuing resolution and there is flat funding, there is going to be 

more than double that in terms of a shortfall in the Defender Services account. And so we have to manage that (shortfall) and think 

about how we are going to make up for it. 

The question about the degree of separations, I think, is important. We have to pay severance and unemployment potentially and 

annual leave when an employee leaves. And so if we separate, unfortunately, a needed, valuable member of our team, not because 

they are not doing a good job, but because we do not have enough 

money, we may separate them and still be obligated to pay them 

for four months, six months, maybe even a year, depending on 

their eligibility for severance and separation costs. 

So as we try to make up the shortfall that we are told we may 

have, if we are not going to furlough employees for weeks or 

months at a time—which we cannot do; it is not fair and it is not 

practical—it means we have to lay off people, and we have to do 

it much sooner. 

Senator SESSIONS. Thank you. I wish we had more money. We 

are in a deep, systemic problem, and we are going to have to deal 

with entitlements, because that is, with interest, you are pushing 

about 40 percent of the entire expenditure of the United States, 

basic entitlement programs plus interest. And there is a limit to 

what the discretionary accounts can sustain. 

Thank you, Mr. Chairman. 

Chairman COONS. Thank you, Senator Sessions. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Chairman Coons, for hosting 

this, and thank you to all the witnesses for being here. This is a 

matter of considerable concern. Our new Public Defender, who had 

been a Federal Public Defender in Rhode Island, Mary McElroy, 

has been in touch with me about the importance of what this does 

to the Federal Public Defender’s Office. I believe that a July 22nd 
16 

letter from the National Association of Assistant United States Attorneys is in the record. Is that correct? 

Chairman COONS. That is correct, Senator. 

Senator WHITEHOUSE. OK, good. And that helps explain how this 

is not a prosecutor versus public defender thing. I was a U.S. Attorney. I was Attorney General of my State. We want a justice system that works, and we want a viable, robust public defender on 

the other side. That keeps cases moving more quickly. It prevents 

unnecessary detentions. It is good for the system. And that was the 

point made by the National Association of Assistant United States 

Attorneys. 

I would also like to put a letter in the record from Attorney General Holder and James Cole, the Deputy Attorney General, stating, 

among other things—it is a June 12th letter of this year—‘‘We recognize that the court system operates effectively only when all of 

its functions are adequately funded and fully operational. This includes funding for court employees, probation and pretrial services 

officers, and Defender Services (which provides defense counsel 

guaranteed under the Sixth Amendment). An effective court system 

is one of the foundations of our democratic society and one of our 

Nation’s bedrock institutions.’’ 

So I think we have really important calls to try to get this right. 

We had this exchange earlier in the Budget Committee, Senator 

Session, and I would respond to what he said by it is not—I know 

the Senator seeks a balanced approach. It is not a balanced approach if you are not going to raise any new revenues. It is not a 

balanced approach when you are putting the well-being of billionaires who are paying lower tax rates than brick masons ahead of 

solving this problem. It is not a balanced approach when a company like CVS in Rhode Island pays a 35-percent tax rate, as the 

law requires, and Carnival Cruise Lines pays 0.6 percent because 

they have figured out how to record their profits overseas and hide 

it from American taxation. 

It is not fair when Apple is taking all of its intellectual property 

and pretending it exists in Ireland and not in the United States 

and dodging their American taxes that way, too. 

There are things that can be done to not raise the tax rates in 

this country, but to get rid of the loopholes and the special services 

that have been provided to special interests in the Tax Code for 

many decades now, and we need to be—I do not think you can have 

a balanced approach if you are protecting those preserves of special 

interest benefit. I think you can only have a balanced approach if 

you are really going at it across the way. 

And, yes, there is steady growth in the Federal budget, but there 

is also steady growth in the U.S. population. There is steady 

growth in our GDP. There is considerably more than steady growth 

in our senior population, and seniors take more money than they 

did when they were younger because they use more health care. 

There is steady growth in income inequality in our country. 

So I think our target really has to be to try to get rid of the sequester in a fair and balanced way, and problems like this, problems like we heard about in the Budget Committee this morning 

on the defense side, can then be addressed. But it is really asking 

a lot. 
17 

Mr. Nachmanoff, your testimony was terrific, and I appreciate 

what you said. You do not have the slippages. You are basically an 

all-personnel outfit, and as a guy who has run government offices 

before, I know perfectly well that it can be very expensive to let 

somebody go. You can actually be a money loser in the short run 

with that proposition. So you could be in a really desperate situation if we do not solve this. 

So I hope we can find a way to work together to do this. One of 

the best ways to do that would be simply to have the House and 

the Senate appoint conferees on the budgets that we adopted so we 

could do what the law ordinarily does, which is take the House and 

the Senate measures and put them in conference so we can work 

it out. Unfortunately, the House does not want to do that. They do 

not want anybody to—conferences are public now. There was a 

time when you went into the back room, and they might have been 

willing to do that. But they are public now, which means they have 

got to defend the budget that they have passed in the full light of 

day. And they do not want to do that because the budget is a really 

extreme budget. 

And so we are stuck. And if we could only get through that, if 

we could only get conferees appointed, then I think in the regular 

order of the Senate we could get rid of the sequester, and we could 

find a reasonable way forward. 

So I thank you for holding the hearing and bringing this piece 

of the problem to everyone’s attention, and with five seconds left, 

I guess I will close. Thanks. 

[Laughter.] 

Chairman COONS. Thank you, Senator Whitehouse. 

And before I turn to Senator Klobuchar, I would just like to ask 

consent to enter into the record a letter from Mr. Nachmanoff as 

well as letters from many of the Federal Public Defenders, other 

colleagues of his throughout the country, including in particular 

Delaware Federal Public Defender, Edson Bostic, who I would like 

to specifically welcome to this hearing today. It was his outreach 

to me that helped inspire me to hold this hearing today. 

There are also letters for the record from Federal Public Defenders from each judicial district within the Third Circuit detailing the 

impact of sequester on their offices. 

[The letters appear as submissions for the record.] 

Chairman COONS. Now I would like to turn to Senator 

Klobuchar. 

Senator KLOBUCHAR. Thank you very much, Mr. Chairman. I 

note that we have the two previous Chairmen of this Subcommittee, Senator Whitehouse and myself here, because we really 

do believe we need functioning courts, and Senator Sessions and I 

worked together when I chaired this Subcommittee. 

I also wanted to thank you for your testimony, Judge Gibbons. 

I am going to turn to a few other issues on the public safety front 

and actually the business front about why we need to have functioning courts. 

I come from a background as a prosecutor, and I testified and 

sent letters into the legislature supporting the public defender’s 

budget as a prosecutor in Minnesota because I always believed we 

were ministers of justice and that we did our job best when we had 
18 

worthy opponents, that it was very hard to figure out the facts 

sometimes unless we had a good defense lawyer on the other side. 

So we were able to maybe get a better result if we knew every fact, 

and if there was a trust in someone who could do a good job, we 

got better results. So I want to thank you for that. 

I was curious, Mr. Allen. We are working very hard on patent reform, and actually Senator Lee and I are holding a hearing next 

week on some further issues that develop with that, and patent 

trolls and other things. And we are really trying to move these 

cases through faster. Could you talk about the effect on businesses 

if you have slowed-down court proceedings when you are trying to 

get through litigation and things that promote innovative like patents? 

Mr. ALLEN. I would be happy to, Senator. There is no question 

that on the civil side we somewhat take a back seat because the 

criminal docket has to be heard due to the Speedy Trial Act. For 

the civil side, we tend to wait patiently. And I can say unequivocally that—— 

Senator KLOBUCHAR. I do not know if it is always patiently, but 

go on. 

Mr. ALLEN. We do the best we can, but there is no question, especially with patent cases. That is a whole separate issue outside 

the purview of this Committee. But for patent cases, there are onerous delays on judicial courts, and they take up so much time that 

they often get pushed to the back burner. When I mentioned there 

are motions that may be pending for six months, eight months, to 

a year, those often can tend to be patent cases where the rulings 

might be 50, 80, 100 pages long. 

The dilemma is that, for civil practitioners, we frequently find 

ourselves discussing with clients, large corporations, why justice in 

a sense cannot be done. For example, I have right now cases where 

there are pending motions for injunctive protection, where the Federal court is the right jurisdiction to ask that things be stayed in 

a certain place, that things not change, that there be an injunction 

in place to help, whether it is protecting intellectual property, and 

a decision from the court simply takes time. Whereas, you go in for 

emergency assistance, you need something before trial for protection, you might not have that assistance for six months or eight 

months. And it is difficult at times to express to clients what happened to American justice. Why, if we hold a patent, and it is clear 

infringement, or a domain name has been taken by, in essence, a 

pirate, why can’t we get that back? And the simple answer is because the courts have a tall stack of motions on their desk, and we 

have to wait our turn. And it is having a real effect on all types 

of business interests. 

I noted that there is a significant difference between the Federal 

courts and an agency which has, as Senator Sessions noted, its 

hand out to Congress. But what is so significant here is that unlike 

other Government agencies scrambling for those scarce Federal dollars, the American judiciary is a coordinate third branch of the people’s form of Government. 

In fact, Justice Roberts noted that for every taxpayer dollar, 

there is only two-tenths of one penny that funds one-third of our 

U.S. Government. That is a staggering statistic. Very efficient, I 
19 

might add, that they are able to do that. And that is the reason 

I am here today, to express that concern. The people instituted a 

Federal system that has three coordinate branches of Government. 

The Congress is entrusted with the safekeeping of America’s judiciary. And we are at a point where this one-third of the U.S. Government is pleading for assistance so they can do the work of the 

American people under the Constitution. And businesses and individuals are suffering under the reality that motions may take 6 

months, and that honestly justice delayed is indeed justice denied. 

Senator KLOBUCHAR. Right. And I just look at this some—my 

State is second per capita for Fortune 500 companies. We have 

thriving companies. 3M has as many patents—each employee has 

a patent, basically. And so I see this not just as a trial lawyer lawsuits, which are important, not just that, but just this natural work 

of doing business is going to involve from time to time litigation 

over contract disputes over many things. And we have to make 

sure it is functioning as we look at the future here for our economy. 

And I guess my second question for you, which has been touched 

on from some of the other Senators, Mr. Nachmanoff, is that perhaps one of the most serious impacts of these cuts on the Federal 

courts is the delay, which was pointed out by Mr. Allen, in judicial 

proceedings. An op-ed in the New York Times this weekend highlighted that in April a major terrorism trial in New York City 

being handled by the Federal defenders was postponed until January after lawyers in that office told the judge that budget cuts had 

left them short of the resources and staff necessary to effectively 

litigate the case. 

Has your office requested similar postponements? Do you see this 

going around the country? And specifically, as I talked about, we 

need this to have the Justice Department function. What will be 

the effect of losing experienced public defenders due to sequestration cuts? 

Mr. NACHMANOFF. Yes, thank you for the question, Senator. I 

come from the ‘‘rocket docket,’’ the Eastern District of Virginia, 

which prides itself on speed, and so asking for a continuance is 

usually not looked upon with favor. But there is no doubt that 

around the country that example from New York is not unique. 

There are many places where cases have been delayed. 

In my district, as a result of the impact of furloughs and layoffs 

from the sequester, we have had, for the first time, to decline the 

cases. We have declined five cases. Those cases have all been resource-intensive, serious cases. Those are exactly the sorts of cases 

that the Federal defender should be taking. We have the expertise 

to take those matters on—international fraud cases, death-eligible 

cases, arms export control cases. Those cases still need a lawyer, 

and those lawyers now will be appointed from the CJA Panel. And 

I agree with Judge Gibbons that there are many fine CJA lawyers, 

and Federal defenders play an important role in supporting the 

CJA lawyers. But the fact of the matter is that we do the work, 

especially on the big cases, most efficiently and most cost effectively because we have the institutional ability and the expertise 

to do that. 

And so what we see is not just delays in the system already, but 

we see costs rising. And as things move forward, those costs will 
20 

rise dramatically as defenders will be forced to take fewer cases because there simply will be fewer of us. 

Senator KLOBUCHAR. Thank you very much, and thank you, Mr. 

Chairman. 

Chairman COONS. Thank you, Senator Klobuchar. 

Just a follow-on to that point, I would ask consent to enter into 

the record a Federal Public Defender’s Fact Sheet, which contains, 

among other things, a study showing that representation by Federal Public Defenders costs about 71 percent as much as comparable representation by an appointed CJA Panel attorney. 

[The information appears as a submission for the record.] 

Chairman COONS. If I might, Judge Gibbons, just on one other 

point, the Conference has the authority to reallocate money from 

one account to another, and the judiciary has, in the past, dealt 

with fiscal crises by delaying payments to panel attorneys so as not 

to threaten the functioning of defenders’ offices. Do the pending cut 

to defenders’ offices throughout the country justify such action this 

year, delaying payments to panel attorneys? And would it, in the 

long term, have a positive or negative impact? 

Judge GIBBONS. Well, as you probably know, for 2013 the Executive Committee of the Judicial Conference is the entity within the 

judiciary that makes the decisions about the spending plan, the financial plan. So that is not a part of our work. But, of course, we 

are privy to it. We on occasion are asked for input. 

This year, after receiving a great deal of input from many different sources throughout the judiciary, the Executive Committee 

did decide to defer panel payments for 15 days. That same sort of 

decision will have to be made, how to handle the cuts in the defender services account for 2014, on an interim basis, if there is not 

a budget in place by October 1. So that decision will have to be 

made once again. 

Some of the things I think the Executive Committee will consider 

are, of course, the impacts that have already occurred to the Defender Program, the impacts that are likely to occur if deferrals are 

not made, the undesirability of pushing obligations that must be 

paid into a new appropriations year. We would like to be able to 

live within our means for a given year. It is not good from our appropriators’ standpoint either. 

But then you have the overall interplay between the two parts 

of that account. As defenders are harder pressed, it is very likely— 

we are already seeing rises in panel representations. That makes 

the panel costs very hard to control because you are not operating 

on historical data anymore. You are operating based on a situation 

that is occurring right before you. 

So it is a very hard decision that the Executive Committee will 

have to make in terms of what to do to the defender services account. It has considered some other options, things like cutting the 

vouchers by a certain percent. They have explored whether or not 

the Judicial Conference has the authority to reduce the hourly rate 

for panel attorneys. They were very reluctant to do that in the past 

because we worked so hard to get that rate and it is, frankly, hardly adequate. And so just a lot of complicated considerations. But, 

yes, everything will be considered, I am sure. 

Chairman COONS. Thank you, Your Honor. 
21 

Mr. Nachmanoff, if you would, just go into a little more detail 

about how you have struggled to deal with the mandate to cut costs 

when, frankly, Federal prosecutors, not defenders, determine your 

workload and when personnel are such a large driver of your total 

budget. 

Mr. NACHMANOFF. Yes, in this fiscal year, we have undertaken 

all of the cost-cutting measures that I have talked about previously. Before going to furloughs and before going to layoffs, we 

tried to eliminate every other area that we could, which is a very 

narrow band of costs. We went back and renegotiated expert rates. 

That is in the face of experts that are paid by the Government 

sometimes twice or three times as much. We are concerned with 

quality, and my employees understood that one thing we were not 

going to do was compromise on the representation that we gave to 

our clients. 

And so after cutting training, cutting travel, renegotiating and 

discounting fees to experts, we were left with still asking people to 

forgo salary, and that includes me, and it includes every other employee in my office. And that has been true of many other Defenders around the country. But even that was not enough, and we had 

three people take early retirement who had a combined 80 years 

of experience of Federal service. We lost tremendous institutional 

knowledge with their retirements. I laid off an employee, and I had 

a military reservist who volunteered to go on active duty to assist 

our office. 

We have tremendously dedicated staff, and that is true of Defenders around the country; they will do whatever it takes to defend our clients and protect this program. But they cannot do that 

if I have to lay off 25, 30, 40 percent of them. 

Chairman COONS. Thank you, Mr. Nachmanoff. 

Mr. NACHMANOFF. Thank you. 

Chairman COONS. Senator Sessions. 

Senator SESSIONS. Well, I do not think you should have to lay off 

that many. If this were a large national private corporation, they 

would recognize when one of their branches is facing a crisis in the 

workload with several big cases that demanded more time, and 

they would reassign somebody to it, I think. I just talked to a person who said their company, a big national company, they said 

their company—so they are not hiring anybody until the GDP 

grows faster than two percent and the vacancies are not being 

filled. Companies are doing this all over the world. 

So the Department of Justice and the Administrative Office of 

the Courts are not above that. We do not have the money to run 

the Government. And we are not going to just keep raising taxes 

every time. So that is the problem we have got. It is very serious, 

and I hope—I want to find out more about the public defenders, because I think your hits have been pretty aggressive, I have heard 

from a number of sources, and maybe we can deal with that. 

Judge Gibbons, in Birmingham, in the Northern District of Alabama, Federal judges somehow manage their own building, rental 

space, and they are very, very happy with it. And GSA is not in 

the picture. They believe it saves money and the courts are more 

happy with it. 

Have you discussed that, you and your colleagues? 
22 

Judge GIBBONS. We have tried hard to do that whenever we can 

get in a situation to do it. We even made efforts a number of years 

ago to extricate ourselves completely from GSA. We were unsuccessful. And so certainly we have looked for every opportunity that 

we could reasonably pursue to gain independence in managing our 

own facilities. 

Senator SESSIONS. Well, I think—— 

Judge GIBBONS. And I congratulate the court in Birmingham for 

having gotten to that point. 

Senator SESSIONS. Well, it came to a point of extending it, and 

there was some concern about it, and I studied it and thought they 

were exactly correct. We were able to maintain that, and there was 

no doubt that every judge was absolutely confident it saved money 

and things ran better. 

Judge GIBBONS. Well, we believe that a situation where we were 

able to manage our own facilities would be very—it would save 

money. It would promote good government. But we have not been 

able to get there yet. 

[Clerk’s Note.—Subsequent to the hearing, Judge Gibbons provided the following information:] 

Regarding operating our own courthouses and buildings, at its 

September 1989 session, the Judicial Conference adopted a policy 

that the Judiciary should pursue legislation in Congress to allow 

us to manage and operate our own facilities, independent of GSA. 

The Judicial Conference reaffirmed this policy in March 2006. 

While there are certainly merits to this idea, the Judicial Conference has not in recent years aggressively pursued legislation to 

implement independent real property authority for the Judiciary. 

There would be significant upfront costs involved, including the 

hiring of potentially large numbers of staff to manage and maintain federal court facilities around the country, or contracting with 

a large commercial real estate firm to perform that work. Also, it 

would constitute a significant responsibility that veers dramatically 

from our core mission to deliver justice. After these upfront investments are made, we believe there could be cost efficiencies; however, given the austere federal budget environment, we do not believe it is prudent to actively pursue independently real property 

authority for the Judiciary. 

The Judiciary has participated in GSA’s building operations delegation program on a limited basis since the Judicial Conference approved a pilot program in March 1988. Under this program, federal 

agencies receive a delegation from GSA for the daily operation and 

management of their buildings. Two courts participated in the program but currently only one facility remains—the Hugo L. Black 

U.S. Courthouse in Birmingham, Alabama. The Judicial Conference terminated the Judiciary’s participation in the program in 

2005, except for the delegation to the Birmingham courthouse, 

which is subject to certain limitations. Beginning in FY 2004, GSA 

instituted changes to the building operations delegation program, 

the most significant being that GSA shifted the responsibility for 

all repairs—regardless of cost—to the delegated agencies. These 

new terms meant that the district court running the building operations in the Hugo L. Black U.S. Courthouse had to begin to budget and plan for projected repairs and maintain a reserve fund for 
23 

unforeseen repairs. This added a significant cost liability to the Judiciary’s budget in the event the building was damaged due to fire, 

flood, natural disaster, or some other occurrence. 

The Space and Facilities Committee of Judicial Conference periodically reviews the building operations delegation program and 

looks at the costs and benefits of expanding it. In light of a court’s 

liability for unforeseen repairs, the Space and Facilities Committee 

has no immediate plans to recommend expansion of the building 

operations delegation program. 

Senator SESSIONS. I do not know where the cases are nationwide. 

In recent weeks we looked at gun prosecutions. They have been 

dropping. I looked at the bank fraud cases. They are not up, actually down a little bit over the last number of years. As I said, the 

number of cases actually going to trial is—of course, that has been 

going on for a decade or more, but those are remarkably low. You 

have situations such as here is the D.C. Circuit, which has the lowest caseload in the country, and my colleagues seem determined to 

fill a vacancy on that circuit when their caseload per judge is less 

than half of the national average. 

So there may be yet some places that we could save some money, 

while at the same time some district courts and circuit courts may 

be at the limit. 

Judge GIBBONS. If I could just briefly address how we take that 

into account. We have work measurement formulas that determine 

or suggest to us—that provide guidance to us on the number of 

staff that a particular court needs, and they respond to changes in 

filings. So it is not like we are constantly building up a higher and 

higher number. 

Senator SESSIONS. Well, your staff may be, Judge, but we in Congress set the number of judges, so—— 

Judge GIBBONS. Oh, that is absolutely true. On the other hand, 

our recommendations to you are also based on filings and change 

over time. But for staff within the courts, our clerk’s office employees, in district, bankruptcy, and appellate courts, our probation and 

pretrial services officers, the numbers of those we need are responsive, among other things, to filings and do change as the formulas 

are repeatedly applied. 

We have a methodology we have been using for determining resource needs in the defender offices, but our Judicial Resources 

Committee is undertaking a work measurement assessment of the 

defender offices to try to gain a better handle on where the resources ought to be allocated within those offices. It is going to take 

a couple of years to get it done, but we are moving in that direction. 

Senator SESSIONS. Mr. Chairman, thank you for your courtesy 

and your excellent leadership. We are glad to have you here to set 

a good example for us on how we ought to conduct our business. 

I will just conclude by saying that when I got elected Attorney 

General in Alabama in 1994, my predecessor—one reason I won, he 

had gotten so far behind on his bills that he could not pay the electric bill. And that all came out like in October. 

But we had a real crisis when I got elected, and he had hired 

a large number of people outside the merit system, and it amounted to a third of the office. We were $5 million short on a $15 mil-
24 

lion budget, and so I terminated a third of the office. I did not 

know what would happen. We reorganized. We closed offsites. We 

got rid of automobiles. We reorganized in the office. And one senior 

person said, ‘‘I hate to admit it, but I am doing more and enjoying 

it more.’’ But we put people to work, and they still have not got 

back to that number today. This was 18 years ago. 

So we think sometimes we cannot do things more efficiently and 

more productively. My experience is sometimes we can surprise 

ourselves when we have to make fundamental changes and create 

efficiencies. I do believe that the Chief Justice and most of our judiciary do believe in efficiencies and are working in that regard. It 

is odd that the Department of Justice, an entirely different agency 

than the Administrative Office of the Courts, has been able not to 

cut their personnel, and you are having to cut yours. It is just one 

of the many inefficiencies sometimes that occur in our Government, 

and it makes it harder for us to reach the level of efficiency the 

taxpayers are entitled to. 

So thank you all. We have a great court system. It is going to 

be a tight time, I have got to tell you, for the next several years. 

But 2015 will be the progress year, on at least the Defense Department budget. I know how that goes. And I think it is the same with 

you. Next year will be the worst year, and then there is a steady 

increase in funding for the next eight years or so of the cycle, ultimately depending on Congress. But next year is going to be a tight 

year, so I am glad to hear your concerns. 

Chairman COONS. Thank you, Senator Sessions. 

I have one or two more questions that I will go to, and before 

I return to asking a few questions, I will ask consent to enter into 

the record a series of articles and letters that I neglected before 

from media and advocacy groups: a New York Times editorial, from 

the Atlantic Monthly, from AP, the Hill, and apparently a January 

article from the Federal Bar Association, as well as a letter delivered today by a group called Justice at Stake. 

[The information appears as a submission for the record.] 

Chairman COONS. Judge Gibbons, if I could, just one last question for you. When making the decisions about where to cut, how 

does the Judicial Conference weigh the needs of Article III judges 

against the needs of Article I judges such as the bankruptcy 

courts—which, as was noted, play a particularly important role in 

Delaware—or the Federal Defender Services? How are those 

weighed? 

Judge GIBBONS. Well, no one area receives more weight than another area. I mean, it is very much—our processes of asking for 

money are highly governed by—or heavily ‘‘guided’’ is a better 

word—by our ways of assessing our needs, and our process of executing the budget, i.e., allocating the money to the courts, is also 

governed by various formulas and allotments. But there is nothing 

in the system that, for example, values the work of an Article III 

judge more than the work of an Article I judge, nor is there anything that values a clerk’s office more than a Federal defender’s office. The system is just not set up in that way, and I feel as confident of this decisionmaking process as I do of any decision-making process within the judiciary in terms of its ability to take all 

the needs, the interests of the courts, the interests of the users of 
25 

the courts, the public interest generally, all of those things into account, and do the best job we can of making a fair and equitable 

and prudent distribution of the limited resources. 

You know, we really feel, as I have said before, that we have 

done a really good job of our management. We have been looking 

at things afresh all along, as Senator Sessions mentioned. It is true 

workload fluctuates. Our courts are staffed right now at 1999 levels. There have been fluctuations in filings during that time, but 

workload overall during that period has increased far more than 

our staffing has increased when you look at where we are today. 

Chairman COONS. Thank you, Your Honor. 

If I could, Mr. Allen, just two quick questions. We have heard 

testimony today that sequestration has limited the judiciary’s ability to upgrade and maintain its information technology systems. 

Senator Sessions referenced the dramatic change in the number of 

cases that are filed online and the amount of management that is 

being done online. But it is also an area where there have been reductions. 

So just help me understand, if you would, how current deficiencies in the courts’ IT systems affect your clients’ ability to get 

swift and reasonable resolution. And, second, if the courts run out 

of money for civil jury fees next year, what would that mean for 

your clients and for the reasonable and timely resolution of their 

cases? 

Mr. ALLEN. Thank you, Senator. The first issue, IT, is a significant one. As Senator Sessions noted, there has been progress over 

the last decade or so to update our system where most filings in 

Federal court use the PACER system and those pleadings are done 

electronically. 

The problem we have seen already over the first decade or so of 

the system is that it has quickly become somewhat outdated. There 

are limitations on how large exhibits can be. There are many 

courts that require and ask that we still submit actual hard copies 

of documents. Those issues are, I think, being addressed, but there 

are some limitations, and there is no plan in place to update or improve the system that we can see from the civil side. 

Likewise, in Federal courts, I have seen courtrooms across the 

country, whether it is sophisticated systems for displaying exhibits 

or other technological advances, if you will, that are discarded because they simply are not working or there are not the personnel 

to have the time to fix them for a court proceeding. And what we 

see is you usually have one or two IT personnel for a courtroom 

that are overworked and, in fact, I think there is a possible likelihood that we will see a lot of transition in that position, which 

means you have someone new coming on. I definitely have seen a 

loss of some of the resources of the courts being made available to 

civil practitioners. 

To the second issue of civil jury fees, if the money is not there 

and civil juries in essence temporarily go away, that raises the 

issue we talked about previously, which is justice delayed is justice 

denied. And for large corporations and other individuals in particular, when you have a dispute that can only be resolved by the 

Federal court, that is the forum under the U.S. Government to go 

in and resolve an issue. It is exceedingly difficult to have no time-
26 

frame as to when that dispute will be resolved, whether it is a patent holder who does not know for how long they will have to wait 

before they get royalties or for how long a case will go, and it is 

very expensive to finance litigation. That becomes a real economic 

issue for clients and for personnel. And the idea that civil jury 

trials may actually go away or at least temporarily go away means 

further delays. 

For example, you may have spent all this money to pay for lawyers and witnesses to be there, and suddenly the courts have to 

say, ‘‘Not this week,’’ ‘‘Not next month.’’ And that ongoing delay 

causes real resources to have to be spent by corporations and they 

do not have a way of planning. It has become a true crisis. 

Chairman COONS. Thank you, Mr. Allen. You know, frankly my 

concern is that those delays also further drive the acceleration of 

the use of arbitration rather than Federal courts, which has its 

own problems, the lack of a development of decisional law, and the 

sort of privatization of our Federal court system that is happening 

through an increasing turn to arbitration. I think the longer delays 

there are, the more that happens. There is a whole range of consequences here—human justice, and systemwide—that we have 

been discussing. 

I would like to welcome Senator Durbin for his round of questions. 

Senator DURBIN. Thank you very much, Mr. Chairman. I apologize for being late and will just ask a few questions. 

First, by way of introduction, Terence MacCarthy, defender 

emeritus of the Federal Defender Program for the Northern District of Illinois, has been a close friend for many years, and he has 

written me a lengthy letter about the impact of sequestration on 

his program where a third of their 40 attorneys are going to be furloughed in some form and unable to be part of this process, and 

he asked me to come to this hearing, and it is particularly because 

of his letter that I wanted to make a point of coming, even at the 

end of it. 

Judge Gibbons, given the fact that U.S. Attorneys already have 

more resources available to them, is sequestration increasing the 

gap in resource parity to a point that calls into question whether 

indigent defendants are getting full due process and an adequate 

defense under the law? I ask you this I guess on the 50th anniversary of Gideon. 

Judge GIBBONS. Certainly we are threatening to get to that 

point, and the problem is made particularly acute—I mean, this 

year, 2013, has been a very difficult one for the defenders. When 

you use figures like the one-third, they are having to plan based 

on the possibility, perhaps some would say even the probability, of 

flat funding or even declining funding for 2014. They must make 

their decisions now so they will not be caught, as they were in fiscal year 2013, midway through the year having to make very dramatic adjustments. 

So I think when you get to the point when you have a very small 

staff, as these offices do, where you have attorneys who are a big 

chunk of the staff, when there are not too many alternative ways 

for an attorney to do his or her work—I mean, you have to prepare 

the case, you have to talk to the client, you have to go to court. 
27 

I do not know of any other options. I do not know too many courts 

that have said attendance is optional. 

And so when you have that little flexibility, you have constrained 

funding and you have unpredictability, it is a scenario that can result very quickly in the dismantling of a system that has really 

been a source of pride for the judicial system. 

Senator DURBIN. So, Mr. Nachmanoff, let me ask you, should the 

defenders’ budgets be calibrated to the Department of Justice budget? Is it an increase in funding for DOJ that means more cases are 

going to be brought in Federal court? 

Mr. NACHMANOFF. That is an excellent question, Senator. Thank 

you. And there is no doubt that the function of Federal Defenders 

is tied inextricably to the charging decisions and funding of the Department of Justice, and the suffering that we have endured this 

year and the suffering that we will endure next year has to be seen 

in the context of what is going to happen with the Department of 

Justice. The Senate Appropriations Committee last week approved 

an increase for the Department of Justice, including U.S. Attorneys, our direct counterparts. The approval was for a $2 billion 

budget, a $79 million increase. And the statement was ‘‘for the purpose of bringing more cases.’’ 

And so we can expect that the Department of Justice will bring 

more cases in a place like the Northern District of Illinois. I am 

humbled to be associated in any way with Mr. MacCarthy, who is 

a giant and a legend of the Federal Defender Program, and this is 

an office that goes back to 1965. The notion that that office is facing potentially laying off a third of its staff is unconscionable, and 

it is directly tied to what will happen in the U.S. Attorney’s Office 

in the Northern District of Illinois where they have 152 Federal 

prosecutors to 19 Federal defenders. 

If Carol Brook is required to lay off staff, that ratio will be even 

more out of whack. It will be more imbalanced. And we have to ask 

ourselves, can we have a fair system of justice? It may well be that 

thinking about the appropriations for the Department of Justice in 

the context of what the Defender Services accounts needs would be 

a very wise thing to do. 

Senator DURBIN. And obviously it can lead to justice delayed and 

justice denied, as I see it, in terms of trying to sync up the investment in prosecution resources while we diminish the investment in 

defender resources. 

I might just add, parenthetically, I had breakfast on Saturday 

morning with the Chairman of the Legal Services Corporation, 

John Levi. Two million indigent civil defendants appeared in court 

in the State of New York last year seeking an attorney, and there 

was no one. They went unrepresented. 

Now, I know it is a different standard with Gideon and the like, 

but it calls into question many things: first, our budgeting; and, 

second, I really believe it is a call to arms for the profession to step 

up in a lot of areas here, particularly in the legal services side, but 

even in our conversation. 

I would like to ask, if I can, Judge Gibbons, we have got a special 

challenge in Chicago. Violent crime is on the rise, and I have 

talked about some legislation to deal with gun tracing and things 

like that. I am concerned, as I review your testimony, that seques-
28 

tration is forcing reductions in staff and resources in Federal pretrial services and also probation offices. Am I right to be concerned 

that these reductions may lead to potentially violent individuals 

walking the street of my city of Chicago without adequate supervision? 

Judge GIBBONS. You are quite right to be concerned. You know, 

the term ‘‘probation officer’’ sounds kind of harmless, but these are 

law enforcement officers who have come to supervise increasingly 

dangerous criminal defendants over the years. There are various 

methodologies for assessing risk factors, and they continue to rise 

dramatically. 

Our officers in 2012 supervised 187,311 defendants. That is expected to rise to 191,000 by 2014. A number of them are extremely 

violent. We are already down by about seven percent of our staff 

in those offices. 

To the extent that we have to make further cuts, must make cuts 

in those areas, we have fewer officers to supervise increasingly 

larger numbers of people. Particularly of concern in that account is 

we have also had to cut 20 percent of what is called the law enforcement account, which funds drug treatment and testing, mental 

health treatment, and electronic monitoring, GPS location monitoring. 

So we have had to really seriously compromise some of our funds 

that go toward keeping the folks we supervise out of further trouble to the extent we can. We have had to completely zero out funds 

for what is called ‘‘second-chance’’ funding, which provides things 

like transitional housing, assistance with getting jobs. We just cannot do that anymore. Yes, this is a public safety risk throughout 

the country. 

Senator DURBIN. I have just got to close by saying I went to Peoria, Illinois, which is a basic Midwestern mid-sized city where they 

are dealing with crime by calling in all of those on probation and 

parole for face-to-face meetings and to say, ‘‘We know you are out 

there. And we are not only telling you we are watching you; We 

are also telling you here is a person who will help you get the 

training, education, and job you need, and here is her cell phone 

number.’’ It really had a dramatic impact. 

We are going in the opposite direction here. We are putting fewer 

people in those capacities to try to find transition life, transition 

opportunities for people who really need an alternative in their 

lives at this moment. 

So I am troubled by what it means in terms of the crime rates 

in Illinois and around our Nation. And I thank you all for your testimony. And, Senator Coons, thank you for holding this hearing. 

Chairman COONS. Thank you very much, Senator Durbin, for 

bringing both your broad experience and your personal commitment to this issue and so many others facing us as we wrestle with 

the budget challenges and the justice challenges that face our country. How we solve our budget challenges has real implications for 

how we also continue to deliver on our fundamental commitment 

to justice. 

Mr. Nachmanoff, if I might, I just sort of wanted to ask in conclusion, there have been some comments made by Senators here 

today. They are just incredulous that it is factually possible that 
29 

there can be defender offices facing in the coming year a reduction 

of staff by as much as a third. If I heard correctly, Judge Gibbons 

at the outset said that there is a roughly 1,000-position reduction 

in the Defender Service nationwide, some through attrition, some 

through layoffs. And it seems that there might be a greater reduction going forward. 

And I have also either read about or heard today about senior 

defenders either taking early retirement or in one case, I believe, 

firing himself in order to avoid more significant cuts for junior staff 

who were really not in a position to take those cuts. And I believe 

you testified earlier to a reservist going to active duty. 

How does the loss of human capital, of institutional knowledge, 

of capability affect the ability of the Federal Defender Service to 

continue its representation? And how is it possible that you, 

amongst all the different functions that we are talking about here 

within the courts, could be facing a further cut of 23 percent? Just 

walk me through that, if you would. 

Mr. NACHMANOFF. Sure. I think with regard to the 1,000-person 

layoff, that was a reference to the court staff in general. 

Chairman COONS. Court staff broadly across all—— 

Judge GIBBONS. Including defenders. 

Chairman COONS. OK. 

Mr. NACHMANOFF. But Federal Defenders are facing devastation 

in the coming year, and that is because if we continue with a continuing resolution and flat funding and we have the deferments of 

panel payments that are due next year, and depending on the decisions about the allocation of resources, Federal Defenders will be 

bearing the brunt of the shortfall. And because we have so many 

fixed costs, it is going to result in these massive layoffs. When you 

add in what I described regarding severance and lump-sum payments for annual leave and unemployment, it is even harder for 

Defenders to manage those budgets. 

So there is no question that the core value of the Federal Defender Program is imperiled in this year, and I appreciated that 

Senator Sessions mentioned that next year, 2014, will be difficult, 

and maybe things will get better. For Federal Defenders, it will be 

impossible to put the system back together again exactly for the 

reason that you have articulated. Senator Durbin referred to the 

great Terry MacCarthy, who is now Defender Emeritus; there are 

many people like him in the system who have years of experience, 

who are admired by the judges in their courts and by prosecutors 

and the court personnel for their integrity and their expertise. We 

have lost several Defenders—Steve Nolder in the Southern District 

of Ohio did terminate himself in order to preserve staff, and other 

Defenders have announced early retirement or that they will be 

leaving. 

I have no doubt that that will increase—and it is not just the Defenders, the leaders of the office. It is the rank-and-file, the lawyers 

who go into court every day. It is the support staff, the investigators, the paralegals, those who allow us to do the job that meet our 

constitutional requirements. And if we lose, whether it is 25 percent or 35 percent or 40 percent of our staff, with our program, 

which is very small, that will be a loss that is permanent. And so 

to rebuild will not involve simply calling them up and asking them 
30 

to come back. We will have lost institutional knowledge and expertise that can never be recovered, and that would be a tremendous 

tragedy, not just for our clients but for the entire court system. 

Chairman COONS. Well, thank you. Thank you, Mr. Nachmanoff, 

thank you, Mr. Allen, and thank you, Your Honor, Judge Gibbons. 

I am grateful for your testimony here today. If I understand in 

summary what we have heard, it is that our current trajectory of 

how the sequester is being implemented in the Federal court system is doing real harm. It is delaying the timely and responsible 

resolution of civil cases. It is significantly reducing the staff available to both Article III and Article I judges and to the good operation of their courts. And, in particular, it is imposing an unreasonable and a lasting impact on the Federal Public Defender Service. 

It is penny-wise and pound-foolish because replacing seasoned senior public defenders with CJA Panel attorneys may, in fact, cost us 

more in the short term. And as you detailed, laying people off actually may cost more in the long term. 

So I leave this hearing today deeply concerned about how the sequester is impacting justice in the United States, grateful for the 

attendance of my colleagues, and hopeful that we can find some 

resolution, if not to the broader challenges of the budget and replacing sequester, something I really hope we will do, but in a 

more focused way to dealing with the specific issues of the judiciary 

and America’s system of justice as you have raised it today. 

I would also like to thank the many interested stakeholders who 

have submitted testimony for the record, which I previously referenced, and it is my very real hope that Congress will take to 

heart the unique role of the judiciary and, within it, of the Federal 

Public Defenders in our system of Government. 

As we look to be careful stewards of taxpayer funds, we have to 

make sure we provide sufficient funding to enable the judiciary, a 

separate branch, to fulfill its important constitutional duty. 

With that, the record will remain open for a week for any Members who wish to submit additional testimony or questions on this 

topic, and I am hereby adjourning this hearing. Thank you. 

[Whereupon, at 4:46 p.m., the Subcommittee was adjourned.] 
(31) 

A P P E N D I X 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
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PREPARED STATEMENTS OF WITNESSES AND COMMITTEE AND SUBCOMMITTEE

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Æ