[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
FEDERAL COURTS DURING THE COVID-19
PANDEMIC: BEST PRACTICES, OPPORTUNITIES
FOR INNOVATION, AND LESSONS FOR
THE FUTURE
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON COURTS, INTELLECTUAL
PROPERTY, AND THE INTERNET
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
__________
JUNE 25, 2020
__________
Serial No. 116-82
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov or govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
42-431 WASHINGTON : 2022
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COMMITTEE ON JUDICIARY
JERROLD NADLER, New York, Chair
MARY GAY SCANLON, Pennsylvania, Vice-Chair
ZOE LOFGREN, California JIM JORDAN, Ohio, Ranking Member
SHEILA JACKSON LEE, Texas F. JAMES SENSENBRENNER, Jr.,
STEVE COHEN, Tennessee Wisconsin
HENRY C. ``HANK'' JOHNSON, Jr., STEVE CHABOT, Ohio
Georgia LOUIE GOHMERT, Texas
THEODORE E. DEUTCH, Florida DOUG COLLINS, Georgia
KAREN BASS, California KEN BUCK, Colorado
CEDRIC L. RICHMOND, Louisiana MARTHA ROBY, Alabama
HAKEEM S. JEFFRIES, New York MATT GAETZ, Florida
DAVID N. CICILLINE, Rhode Island MIKE JOHNSON, Louisiana
ERIC SWALWELL, California ANDY BIGGS, Arizona
TED LIEU, California TOM McCLINTOCK, California
JAMIE RASKIN, Maryland DEBBIE LESKO, Arizona
PRAMILA JAYAPAL, Washington GUY RESCHENTHALER, Pennsylvania
VAL BUTLER DEMINGS, Florida BEN CLINE, Virginia
J. LUIS CORREA, California KELLY ARMSTRONG, North Dakota
SYLVIA R. GARCIA, Texas W. GREGORY STEUBE, Florida
JOE NEGUSE, Colorado
LUCY McBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas
PERRY APELBAUM, Majority Staff Director & Chief Counsel
CHRISTOPHER HIXON, Minority Staff Director
------
SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY,
AND THE INTERNET
HENRY C. ``HANK'' JOHNSON, Jr., Georgia, Chair
J. LUIS CORREA, California, Vice-Chair
THEODORE E. DEUTCH, Florida MARTHA ROBY, Alabama, Ranking
CEDRIC L. RICHMOND, Louisiana Member
HAKEEM JEFFRIES, New York STEVE CHABOT, Ohio
TED LIEU, California MATT GAETZ, Florida
GREG STANTON, Arizona MIKE JOHNSON, Louisiana
ZOE LOFGREN, California ANDY BIGGS, Arizona
STEVE COHEN, Tennessee GUY RESCHENTHALER, Pennsylvania
KAREN BASS, California BEN CLINE, Virginia
ERIC SWALWELL, California
JAMIE SIMPSON, Chief Counsel
BETSY FERGUSON, Senior Counsel
C O N T E N T S
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June 25, 2020
Page
OPENING STATEMENTS
The Honorable Henry C. ``Hank'' Johnson, Jr., Chair of the
Subcommittee on Courts, Intellectual Property, and the Internet
from the State of Georgia...................................... 25
The Honorable Martha Roby, Ranking Member of the Subcommittee on
Courts, Intellectual Property, and the Internet from the State
of Alabama..................................................... 26
WITNESSES
The Honorable David G. Campbell, Chair, Senior United States
Judges for the District of Arizona
Oral Testimony................................................. 28
Prepared Statement............................................. 31
Supplemental Statement......................................... 39
The Honorable Bridget M. McCormack, Chief Justice, Michigan
Supreme Court
Oral Testimony................................................. 64
Prepared Statement............................................. 67
The Honorable Jeremy Fogel, Executive Director, Berkeley Judicial
Institute, Berkeley School of Law, University of California
Oral Testimony................................................. 71
Prepared Statement............................................. 72
Ms. Melissa Wasser, Policy Analyst, Reporters Committee for
Freedom of the Press
Oral Testimony................................................. 75
Prepared Statement............................................. 77
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE RECORD
Items submitted by the Honorable Henry C. ``Hank'' Johnson, Jr.,
Chair of the Subcommittee on Courts, Intellectual Property, and
the Internet from the State of Georgia for the record
A statement from Bruce Stern, American Association for Justice. 4
A survey entitled, ``Legal Practice in the COVID-19 Era Survey
Findings,'' Federal Bar Association.......................... 13
FEDERAL COURTS DURING THE COVID-19
PANDEMIC: BEST PRACTICES, OPPORTUNITIES
FOR INNOVATION, AND
LESSONS FOR THE FUTURE
----------
Thursday, June 25, 2020
House of Representatives
Subcommittee on Courts, Intellectual Property,
and the Internet
Committee on the Judiciary
Washington, DC
The Subcomittee met, pursuant to call, at 9:05 a.m., 2141
Rayburn Building, Hon. Henry C. ``Hank'' Johnson [Chair of the
Subcommittee] presiding.
Present: Representatives Johnson of Georgia, Stanton,
Correa, Roby, Chabot, Collins, Johnson of Louisiana, Biggs, and
Cline.
Staff Present: Madeline Strasser, Chief Clerk; Anthony
Valdez, Staff Assistant; John Williams, Parliamentarian; Jamie
Simpson, Chief Counsel; Betsy Ferguson, Minority Senior
Counsel; Caroline Nabity, Minority Counsel; Kiley Bidelman,
Minority Clerk.
Mr. Johnson of Georgia. The Subcommittee will come to
order. Without objection, the Chair is authorized to declare
recesses of the Subcommittee at any time.
Welcome to this morning's hearing on ``Federal courts
During the COVID-19 Pandemic: Best Practices, Opportunities for
Innovation, and Lessons for the Future.''
Before we begin, I would like to remind Members that we
have established an email address and a distribution list
dedicated to circulating exhibits, motions, or other written
materials that Members might want to offer as part of our
hearing today.
If you would like to submit materials, please send them to
the email address that has been previously distributed to your
office and we will circulate the materials to Members and staff
as quickly as we can.
I also ask unanimous consent that the following items be
entered into the record: A letter to Chair Johnson and Ranking
Member Roby from Bruce Stern, the President of the American
Association for Justice, and the results of a study of a recent
survey by the Federal Bar Association of its Members on legal
practice in the COVID-19 era.
Without objection, so admitted.
[The information follows:]
MR. JOHNSON OF GEORGIA FOR THE RECORD
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Mr. Johnson of Georgia. I will now recognize myself for an
opening statement.
Welcome to the subcommittee's hearing on the ``Federal
courts During the COVID-19 Pandemic Best Practices,
Opportunities for Innovation, and Lessons for the Future.''
For more than 70 years, Congress has provided that, quote,
``All courts of the United States shall be deemed to be always
open,'' end quote. That congressional mandate and the deeper
principles it embodies has been sorely tested by the pandemic
sweeping across the country.
The idea of open justice is fundamental in any
constitutional democracy. The concept encompasses a range of
meanings, but today I want to focus on three.
First, open justice means that our courts must be open for
business, able to not just receive complaints and motions but
also to hear arguments, hold trials, and issue decisions
without the undue delay that can rob any ruling of its value.
Second, open justice means that our courts must be open to
the public because justice made in the dark isn't really
justice at all.
Third, open justice means that our courts must be safe and
accessible to all.
Our judiciary is decentralized by design and inclined
towards incrementalism. So it is to their credit that our
Federal courts moved relatively quickly to maintain their
operations and protect health and safety in the face of the
coronavirus.
Judges and court administrators had to make tough decisions
that probably saved lives. They closed courthouses, postponed
trials, and held hearings by phone and in video.
One court even held the Federal Judiciary's first virtual
bench trial. With their courtrooms closed, many judges opened
their proceedings to the public through live video and audio.
Even the Supreme Court, which has been committed to closing
itself off from the public, allowed live audio broadcasts of
its arguments.
With four months of experience behind us and the reality
that we are still in only the first wave of the virus, it has
become clear that the courts and Congress need to do much more
if we want the courts to be truly open during this pandemic and
after.
It is also clear that we can do more to insulate the
judiciary against future emergencies, whether that is a second
or third wave, or a future pandemic.
There is an alarming backlog of motions and trials that, if
not addressed, could effectively decide cases against parties
who cannot afford to wait for a judgment.
The judiciary's historical resistance to embracing
available information technology options could force court
personnel, litigants, and witnesses into unsafe courthouses to
attend proceedings that could have been held remotely.
The risk of infection could shut the public and the media
out of live proceedings that could have--that could have been
held remotely. The risk of infection could shut the public and
the media out of live proceedings and the lack of publicity
about alternatives could shut them out of remote proceedings.
The Supreme Court might return to its practice of forcing
people to wait in long lines to cycle through a tiny packed
courtroom. These threats to open justice will force the
judiciary to make some uncomfortable choices.
There is a powerful desire to get back to normal, but the
courts will put people at risk if they simply try to revert to
how they operated before the pandemic.
Instead, the judiciary should meet this crisis by exploring
how to make the court more open, more effective, and safer than
ever before, both during the pandemic and beyond.
It can start by following the increasingly well-worn path
marked by many innovative State, local, and Federal judges.
The coronavirus has forced us all to ask what kind of
government are we? What kind of government should we be? Most
importantly, what kind of government will we be?
Our Federal courts are no exception. I hope today's hearing
will help us find answers that preserve justice, promote public
confidence in the courts, and protect the Rule of law.
It is now my pleasure to recognize the Ranking Member of
the Subcommittee, the gentlewoman from Alabama, Ms. Roby, for
her opening statement.
Ms. Roby. I thank you, Mr. Chair.
Good morning, and thank you to all of our witnesses for
participating in today's hearing.
I want to first express my deep condolences to all who have
been impacted by the COVID-19 pandemic. Over 120,000 Americans
have died from coronavirus and many more continue to be
infected. I and my family, we are praying for the families and
loved ones and those who have lost their lives, and for anyone
who has been impacted by this terrible virus.
Turning to today's hearing, I want to thank Chair Johnson
for convening this hearing on a very timely and important topic
and will say it is nice to be back in our Committee hearing
room.
The entire Federal Government including the judicial branch
has had to react to health challenges posed by the deadly
COVID-19 virus.
In particular, the Federal Judiciary has had to close
courthouses, halt jury trials, and suspend in-person
proceedings, given social distancing guidelines and health
concerns.
We know that COVID-19 has not affected each state, city, or
jurisdiction the same. As Federal, district, and appellate
courts begin to consider how to safely reopen, we need to
ensure the Federal Judiciary is prepared to assist courts
across the country as they start planning how in-person
proceedings will look like, moving ahead.
I look forward today to hearing about the work the Judicial
Conference and the Administrative Office of the U.S. Courts,
have done to help and provide guidance to Federal courts during
this challenging time.
Both the Judicial Conference and the Administrative Office
of the U.S. Courts play critical roles in supporting an
efficient, effective, and productive Federal Judiciary.
I also hope that today we have the opportunity to discuss
how Congress can support the Administrative Office of Courts in
their continuing response to the pandemic.
I anticipate that some of our witnesses may decide on the
use of permanent remote technology in the courtroom even after
the country recovers from COVID-19.
However, as I mentioned in my remarks last September at the
subcommittee's hearing on judicial transparency, I have deep
concerns about the use of cameras in the courtroom and the live
broadcasts of court proceedings.
As we consider the use of technology in the court, we need
to ensure that the judiciary is fully prepared to utilize that
technology and adequate safeguards need to be in place.
We also need to remember that some courts and jurisdictions
may not be readily equipped with the technological capabilities
required to participate in remote judicial proceedings.
For example, parts of my district in Alabama are rural and
securing access to quality broadband can be a real challenge.
So, while we discuss the reopening of the judicial system,
we need to consider the best practices of how courthouses can
safely reopen under proper social distancing guidelines so that
the needed proceedings in our courts can continue.
I look forward to hearing from all of our witnesses today
and I thank you for your time to testify this morning.
Thank you, Mr. Chair, and I yield back.
Mr. Johnson of Georgia. Thank you.
We will now introduce our witnesses. To begin, yield to the
gentleman from Arizona, Mr. Stanton, who will introduce Judge
Campbell.
Mr. Stanton. Thank you very much, Mr. Chair.
It is my honor to introduce Judge David Campbell from the
District of Arizona. Judge Campbell has been a United States
District court judge for the District of Arizona since 2003 and
a Senior Judge since 2018.
He currently Chairs of the Committee on Rules of Practice
and Procedure for the U.S. Federal courts, which oversees the
work of five advisory committees on the Federal Rules of Civil,
Criminal, Bankruptcy, and Appellate Procedure, and the Federal
Rules of Evidence.
He served as Chair of the Advisory Committee on the Federal
Rules of Civil Procedure from 2011 to 2015 and as a Member of
the Committee from 2005 to 2011.
Judge Campbell is a Member of the American Law Institute, a
Fellow of the American Bar Foundation, and a Board Member of
the Judicial College of Arizona, and I am proud to have a
fellow Arizonan here today to represent our courts in front of
Congress.
Welcome, Judge Campbell.
Mr. Johnson of Georgia. Thank you, Mr. Stanton. Welcome,
Judge Campbell.
Next, we will go to Chief Justice Bridget McCormack. She
joined the Michigan Supreme Court in 2013 and became Chief
Justice in 2019.
Before her election to the court, she served as a clinical
professor of law, associate dean clinical affairs, and co-
director of the Innocence Clinic at the University of Michigan
Law School.
Prior to joining the University of Michigan Law School
faculty, she was a Cover Fellow at Yale Law School. Before
that, she worked as a staff attorney with the Office of the
Appellate Defender and as a Senior Trial Attorney with the
Criminal Defense Division of the Legal Aid Society in New York
City.
Chief Justice McCormack received her BA from Trinity
College and her JD from New York University School of Law.
Welcome, Judge McCormack.
Judge Jeremy Fogel became the first Executive Director of
the Berkeley Judicial Institute in 2018. Prior to his
appointment at Berkeley, he served as director of the Federal
Judicial Center as a United States District Judge for the
Northern District of California, and as a judge for the Santa
Clara County Superior and Municipal Courts.
He received his BA from Stanford University and his JD from
Harvard Law School. Judge Fogel has received many accolades,
including the President's Award for outstanding service to the
California judiciary from the California Judges Association and
recognition from the Santa Clara County Bar Association for
exemplifying the highest standards of professionalism in the
judiciary.
Welcome, Judge Fogel.
Last but not least, we have Melissa Wasser, or Ms. Wasser.
I am sorry.
Melissa Wasser is a Policy Analyst at the Reporters
Committee for Freedom of the Press. Prior to joining the
Reporters Committee she worked as a law Fellow for the American
Constitution Society and legal extern to the Ohio House
Democratic Caucus in the Ohio House of Representatives.
She is a former Human Rights Campaign McCleary Law Fellow
and a recipient of the Michael E. Moritz Leadership Award in
Law.
Ms. Wasser received her BA from Youngstown State University
and JD and MA in Public Policy and Management from the Ohio
State University. Welcome.
Before proceeding with testimony, I hereby remind the
witnesses that all of your written and oral statements made to
the Subcommittee in connection with this hearing are subject to
18 USC 1001.
Please note that your written statements will be offered
into the record in its entirety. I ask that you summarize your
testimony in five minutes, and to help you stay within that
time there is a timing light that I am not sure is visible to
you. If it is not visible to you, I will tap the gavel when you
have 30 seconds left and when you have 10 seconds left I will
tap it a little louder.
Judge Campbell, you may begin.
TESTIMONY OF DAVID G. CAMPBELL
Judge Campbell. Chair Johnson, Ranking Member Roby, and
Members of the Subcommittee, good morning and thank you for
inviting the judiciary to testify on how the Federal courts are
responding to the COVID-19 pandemic.
I appear today on behalf of the Judicial Conference of the
United States. Like other institutions, the operations of the
Federal Judiciary have been seriously disrupted by the
pandemic.
I am pleased to report, however, that judges in District,
Bankruptcy, and Appellate Courts continue to hold hearings,
issue decisions, and resolve cases.
Jury trials and grand jury proceedings have been postponed
in most districts. Other proceedings continue to the greatest
extent possible through video and telephone conferencing.
In February, the Administrative Office of the U.S. Courts
established a COVID-19 task force to monitor the impact of the
virus on court operations and provide guidance and resources to
courts on emerging issues.
A COVID-19 website was established on the judiciary's
Intranet, which addresses pandemic-related information and
resources on a wide range of relevant topics.
Circuit and District courts used these resources to meet
their local needs.
On April 24th, the AO published recovery guidelines for
phased reopening of the courts. These include gating criteria
and a real-time dashboard courts can use to obtain information
about conditions in their own communities.
The AO also established an Internet hub on its website to
keep the public informed about court operations, and some
20,000 court employees are teleworking through the court's
virtual private network.
For the courts, reconvening of jury trials is a priority.
Individual courts are developing jury procedures for their
unique situations that seek to minimize health risks for all
participants.
On June 14th, a subgroup of the AO's task force provided a
detailed and helpful report on conducting jury trials and
convening grand juries during the pandemic. Many Federal courts
are also communicating with their State court counterparts to
exchange relevant information and best practices.
It is difficult to predict the extent of the case backlog
that will result from the pandemic. Some delays will result
from the fact that jury trials have been postponed and will
require priority attention when they can resume.
Of course, Bankruptcy Courts will likely see a surge in
filings that will affect their caseloads.
We very much appreciate the $7.5 million in supplemental
appropriations you provided in the CARES Act to address
immediate technology needs and increased costs in our probation
and pretrial services programs.
On April 28th, the Judicial Conference submitted a
supplemental funding request for $36.6 million to address
urgent needs such as enhanced cleaning of court facilities,
health screening at courthouse entrances, technology
infrastructure, costs associated with supervision of offenders
released from prison early, and security costs.
Attachment One to my written statement provides additional
details on this request.
The Judicial Conference also identified 17 legislative
proposals to address immediate COVID-19 impacts and post-
pandemic operations. We ask that you please consider these
proposals carefully. They are summarized in Attachment Two to
my written statement.
Thank you for working with us to craft provisions in the
CARES Act that made it possible to hold video and audio
proceedings temporarily during the pandemic for many pretrial
events and criminal cases.
These provisions have worked well during the emergency and
have allowed courts to continue processing criminal cases.
The CARES Act also directs the Judicial Conference and the
Supreme Court to consider whether various sets of Rules should
be amended to include emergency procedures. That work is
already underway through the Rules Committees of the Federal
courts.
Mr. Chair, thank you for the opportunity to address these
issues. I will do my best to respond to any questions.
[The statement of Judge Campbell follows:]
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Chair Johnson, Ranking Member Roby, and Members of the
Subcommittee:
Good morning, I am David Campbell, Senior United States
District Judge for the District of Arizona. Thank you for
inviting the Judiciary to testify on how the Federal courts are
responding to the COVID-19 pandemic. I appear today on behalf
of the Judicial Conference of the United States, the national
policy-making body for the Federal courts. I currently serve as
Chair of the Judicial Conference Committee on Rules of Practice
and Procedure for the Federal courts, which studies the
operation and effect of the Federal rules of practice and
procedure and oversees the work of the five Advisory Committees
on the Federal Rules of Civil, Criminal, Bankruptcy, and
Appellate Procedure, and on the Federal Rules of Evidence. I
previously served as Chair of the Advisory Committee on Civil
Rules from 2011 to 2015, and as a Member of the Advisory
Committee from 2005 to 2011. I am personally familiar with the
practices and procedures used in Federal courts and the process
by which they are revised and updated.
Additional information in this statement has been provided
by knowledgeable persons within the Administrative Office of
the United States Courts (AO).
Let me begin by thanking the Members of this Subcommittee
as well as the Full Committee for your longstanding support of
the Federal Judiciary. Your commitment to the Federal Court
system, as demonstrated by the resources and funding Congress
has provided, is very much appreciated by the judges, their
staff, and support personnel. Today's hearing is another
demonstration of that commitment, and we appreciate the
opportunity to discuss how the Judiciary is addressing the
challenges resulting from the current nationwide emergency.
Like other institutions throughout the United States and
the world, the operations of the Federal Judiciary have been
impacted by the COVID-19 pandemic. I am pleased to report,
however, that the Federal courts continue to operate in all
categories of cases despite unprecedented challenges. Jury
trials and grand jury proceedings have been postponed in most
districts, but civil, criminal, bankruptcy, and appellate
proceedings continue to the greatest extent practicable through
video and telephone conferencing technology. Judiciary
personnel nationwide are teleworking, and the AO continues to
provide support to the courts.
I will now discuss each of the topics in the title of
today's hearing, namely, the Federal Judiciary's efforts to
institute best practices in response to the pandemic,
opportunities for innovation identified as a result of those
efforts, and lessons for the future, with a particular focus on
civil proceedings.
I. BEST PRACTICES
The primary goal of the Judiciary, of course, is to fulfill
its constitutional mission of providing justice in individual
cases and maintaining the rule of law. Through a combination of
advanced planning, use of technology, and the dedication of
thousands of judicial personnel, the Federal Judiciary
responded rapidly to the pandemic and enabled courts to
continue operating while ensuring the health and safety of the
public and court personnel. By necessity, this has been and
continues to be implemented through local, court-specific
approaches, reflecting the disparate nature and evolving impact
of the pandemic.
A. Advanced Planning
Prior to the current pandemic, the Federal Judiciary had in
place an emergency preparedness program that greatly
facilitated the Judiciary's rapid response to this situation.
Pandemic planning and direction have been a component of the
Federal Judiciary's Emergency Management Program since 2005--
part of its Continuity of Operations Plans (COOP). Because of
this planning, the Federal Judiciary was able to begin
responding to the pandemic in January of this year.
Courts have been employing COOP plans for many years, but
in 2005 a Pandemic Annex was provided to them by the AO. The
Annex includes templates and instructional materials developed
by the AO to help courts navigate a pandemic. These materials
assisted each court unit in making informed decisions about how
to continue proceedings during the COVID-19 pandemic.
B. Federal Judiciary COVID-19 Task Force
In January 2020, the Federal Judiciary began preparations
for the COVID-19 pandemic through AO communications with the
courts. On February 18, 2020, the AO established the Federal
Judiciary COVID-19 Task Force (Task Force). The Task Force
consists of Chief District Judges and Court Unit Executives; a
Federal Defender; staff from AO program offices; and
representatives from the General Services Administration, the
U.S. Marshals Service, the Executive Office for U.S. Attorneys,
and the Federal Protective Service. The Task Force monitors and
assesses the impact of the virus on court operations nationally
and provides advice on emerging issues presented by the
pandemic. It serves as a point of contact for, and coordinates
communication with, Courts, Court Units, Federal Defenders, and
AO offices. It can request, obtain, and disseminate information
and guidance relating to the coronavirus and its impact on the
Judiciary in an expeditious manner. The Task Force meets weekly
and its leadership meets daily. A representative of the Task
Force also serves on the American Bar Association's COVID-19
Task Force to ensure coordination with the legal community. \1\
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\1\ In addition to the Task Force, the Judicial Conference's
Committee on Federal-State Jurisdiction serves as the conduit for
communication on matters of mutual concern between the Federal
Judiciary and State courts and their support organizations such as the
National Center for State Courts, the Conference of Chief Justices, and
the State Justice Institute. The Committee has four State Chief
Justices as Members (currently, the Chief Justices of Ohio, Minnesota,
Indiana and Florida), and the President of the National Center for
State Courts attends the meetings of the Committee as an invited guest.
Federal judges from this Committee attend the Conference of Chief
Justices meetings, and Committee Staff coordinate with National Center
Staff on issues of mutual concern.
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As more fully described below, the Task Force coordinates
an extensive COVID-19 resource website on the Judiciary's
Intranet. The website includes current infonnation on the
spread of the COVID-19 virus, links to key health information,
answers to frequently asked questions (FAQs), a collection of
court-implemented best practices, additional guidance,
templates, and resources. In addition, the Task Force has
coordinated meetings with the Bureau of Prisons, U.S. Marshals
Service, and Judiciary Officials.
C. Guidance and Related Informational Materials
To date, the AO has assisted in drafting, staffing, and
issuing of more than 429 guidance and policy FAQs on issues
such as bankruptcy administration, budgets, conferences, court
interpreting, court reporting, facilities and security, finance
and internal control, financial disclosure, health, human
resources and benefits, information technology, jury duty,
naturalization ceremonies, probation and pretrial services,
procurement, telework, and travel. Sixty-five memos on a
variety of topics have been issued to courts since the pandemic
began. Districts and circuits use these resources to assess and
meet their localized needs and operations. Many of these
resources have been made publicly available on the Judiciary's
www.uscourts.gov website. For example, guidance on the
following topics have been made available to the public:
Court operations during the pandemic; \2\
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\2\ https://www.uscourts.gov/news/2020/04/08/courts-deliver-
justice-virtually-amid-coronavirus-outbreak.
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Teleconferencing during the pandemic; \3\
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\3\ https://www.uscourts.gov/news/2020/03/31/judiciary-authorizes-
videoaudio-access-during-covid-19-pandemic.
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Court orders and updates on court operations; \4\
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\4\ https://www.uscourts.gov/about-Federal-courts/court-website-
links/court-order-and-updates-during-covid19-pandemic.
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Media access to Federal courts; \5\
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\5\ https://www.uscourts.gov/news/2020/04/03/judiciary-provides-
public-media-access-electronic-court-proceedings.
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Suspension of jury trials during the pandemic; \6\
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\6\ https://www.uscourts.gov/news/2020/03/26/courts-suspend-jury-
trial-response-coronavirus.
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Restarting jury trials; \7\ and
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\7\ https://www.uscourts.gov/news/2020/06/10/judiciary-issues-
report-restarting-jury-trials.
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Reopening guidelines. \8\
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\8\ https://www.uscourts.gov/news/2020/04/27/courts-begin-consider-
guidelines-reopening.
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D. Support Services Provided by the AO
Throughout the COVID-19 pandemic, the AO has provided
support to courts on continuity of operations, including
guidance on technology, human resources, and budget issues. It
provides updates from the Centers for Disease Control and
Prevention, and coordinated with the Federal Emergency
Management Agency to obtain over one million cloth reusable
masks which were shipped to court units across the country for
use by court employees and visitors to courthouses and
judiciary offices.
On April 24, 2020, the AO published the ``Federal Judiciary
COVID-19 Recovery Guidelines.'' The Guidelines include three
gating criteria for courts to consider before proceeding to a
phased re-opening (four phases of reconstitution are
contemplated): (1) The number of COVID-19 confirmed or
suspected cases in the court facility within a 14-day period;
(2) a sustained downward trend of cumulative daily COVID-19
cases over a 14-day period in the community; and (3) the
rescission of local orders restricting movement or requiring
shelter in-place. The AO has created national dashboards for
each of these criteria, displayed at the county level, to
enable courts to make these determinations on a real-time
basis.
To keep the public informed about court operations
throughout the United States, on March 12, 2020 the AO
established an Internet hub on its public website,
uscourts.gov. This hub provides near-daily updates on the
operational status of individual courts, including closures,
restrictions on accessibility, and the availability of court
proceedings through remote access. Courts have provided similar
information on their individual websites.
II. OPPORTUNITIES FOR INNOVATION
Much like Congress--through its adoption of H. Res. 965 to
permit Members and Witnesses to participate remotely in
hearings--the Federal Judiciary has used technology to ensure
continuity of operations while protecting the health and safety
of the public and judiciary personnel. Telephone and video
technology has been used in civil cases to continue court
proceedings and facilitate public and media access. There are
challenges, including concerns about the security of media
platforms, an inability to conduct jury trials, and some
scheduling delays.
A. Technology
Recognizing that the pandemic would require courts to close
courthouses or restrict access, the Judicial Conference acted
on March 29, 2020, to temporarily authorize the use of video
and teleconferencing technologies under certain circumstances.
\9\ Courts are now using a variety of platforms to provide
audio and video access to civil proceedings. Judicial staff and
AO support personnel have worked quickly resolve technical and
logistical issues as they arise, including, for example,
expanding network capacity to handle bandwidth strains when
multiple judges are holding hearings simultaneously, obtaining
licenses for certain platforms, and ensuring that courts have
necessary equipment.
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\9\ Judicial Conference policy generally prohibits the broadcasting
of proceedings in Federal Trial Courts (JCUS-SEP 94, pp. 46-47; Guide
to Judiciary Policy, Vol. 10, Ch. 4). The Executive Committee of the
Judicial Conference, however, approved a temporary exception to the
policy to allow a judge to authorize the use of teleconference
technology to provide the public and the media audio access to court
proceedings while public access to Federal courthouses generally, or
with respect to a particular district, is restricted due to health and
safety concerns during the Coronavirus Disease (COVID-19) pandemic.
This authorization will expire upon a finding by the Judicial
Conference that the emergency conditions due to the emergency declared
by the President with respect to COVID-19 are no longer materially
affecting the functioning of the Federal courts generally or a
particular district.
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The AO has taken steps to strengthen the Federal
Judiciary's Infomiation Technology (IT) infrastructure to
accommodate telework across the Judiciary. The AO is monitoring
connectivity closely and steadily seeing approximately 20,000
simultaneous connections through its virtual private network
(VPN) services. Although some problems have been reported, the
systems are performing well given the unprecedented number of
remote workers.
The AO has also increased capacity. This includes the
doubling of internet bandwidth and significant increases in
telephone audio bridges and video conferencing licenses,
including more than 2,000 additional audio conference numbers.
The increases provided a level of assurance that court
proceedings were accessible to those with an interest in
attending.
The courts are conscious of their obligation to ensure
public and media access to civil proceedings. That access
normally is afforded by open courtrooms--a form of access
currently limited or eliminated by local measures required to
protect the health and safety of litigants, attorneys,
witnesses, members of the public, the press, and court
employees. Fortunately, teleconference technology has allowed
the public and the media to listen to civil proceedings they
are unable to attend in person.
B. Challenges
The Federal Judiciary has encountered various challenges in
its effort to continue to operate during the COVID-19 pandemic.
I will highlight three: The security of media platforms, the
conduct of jury trials, and potential caseload backlogs.
The AO has been closely monitoring the security and privacy
of media platforms utilized by the Judiciary. As you know, the
surge in videoconferencing has made it a target for hackers.
The AO provides recommendations and support to courts using
videoconferencing to conduct Judiciary business, enabling them
to secure their hearings.
The use of videoconferencing has been particularly
challenging in court hearings with detained defendants and in
facilitating attorney/client communications, both with Federal
Detainees in local jails and defendants in the Bureau of
Prisons (BOP). Local jails and BOP facilities have not always
had videoconference software or software compatible with courts
or defender offices. Delays in attorney/client communication
because of a lack of videoconference capacity is something we
continue to address--additional funding would help to alleviate
some of these issues and assure that our Sixth Amendment
obligations are upheld.
The COVID-19 pandemic has significantly impacted jury
trials and caseload backlogs.
As noted above, jury trials--which require numerous
potential jurors to assemble at a courthouse for jury selection
and require selected jurors to attend trials for multiple
days--present serious health risks to jurors and to all other
trial participants during a time of publicly-transmitted
infections. As a result, jury trials have been largely stopped
during the pandemic. Restrictions on court access and the
limitations of technology have also forced judges and court
staff to prioritize other matters such as essential proceedings
in criminal cases. We appreciate that Congress has expressed
specific concern for public defenders and panel attorneys
during the pandemic--the defense team does face greater COVID-
19 risks than some other stakeholders.
Reconvening jury trials is a judicial priority. Individual
courts are developing protocols tailored to meet the conditions
in their district's courthouses that will minimize health and
safety risks for all participants in the jury selection process
and the conduct of juries. Courts recognize that jurors must be
given reasonable assurance of their safety before participating
in the jury process. Jurors must be comfortable during a trial
and be able to focus on the evidence, arguments, and court
instructions, and not the risk of a COVID-19 infection.
Defenders and panel attorneys need adequate time and space to
communicate with their incarcerated clients in a
constitutionally effective way without fear of contracting the
virus. There is no one-size-fits-all approach. Each court is
assessing information from local health authorities, the AO,
and the Centers for Disease Control and Prevention in
developing its plan to resume jury trials.
The AO is providing guidance on this issue. On June 14,
2020, a Jury Subgroup of the AO's COVID-19 Task Force issued a
report titled ``Conducting Jury Trials and Convening Grand
Juries During the Pandemic.'' The report identifies issues and
provides detailed recommendations for courts to consider as
they reconvene grand and petit juries.\10\ Both the main COVID-
19 Task Force and the Jury Subgroup continue to monitor
developments concerning the pandemic' s impact on the courts'
ability to conduct jury trials.
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\10\ https://www.uscourts.gov/sites/default/files/
combined_jury_trial_post_covid_doc_6 .10.20.pdf.
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Despite these disruptions to normal court operations,
judges in every court type--district, bankruptcy, and
appellate--continue to hold hearings, issue decisions, and
resolve cases on their dockets. They continue to review filings
and to conduct hearings with parties and counsel using
teleconference or videoconference technology.
It is difficult at this stage to predict when courts will
be able to resume normal operations and, thus, the extent of
any backlog that will result from the pandemic. Our hope is
that the Judiciary's ability to continue operations during this
period will minimize delays to case progress and mitigate any
backlog as much as possible.
C. Bankruptcy Issues
The COVID-19 pandemic has in some respects had a chilling
effect on the commencement of new cases, particularly consumer
bankruptcy case filings. While business bankruptcy filings in
May 2020 increased by 48 percent compared to the same period
last year, consumer filings were significantly lower.
Whether, as predicted by many experts, there will be a
massive surge in bankruptcy filings depends on the pandemic's
impact on the unemployment rate and the timeliness of the
nation's economic recovery. Americans have lost more than twice
as many jobs (16,800,000) from March to mid-April than during
the entirety of the Great Recession, and it took 24 months for
the latter losses to peak. Moreover, the unemployment numbers
do not reflect the likely higher number of individuals who have
had their work hours reduced, with corresponding reductions in
income.
The impact of the pandemic on small businesses is likely to
be severe, notwithstanding the Federal stimulus and relief
programs. Many small businesses lack the kind of banking
relationships that ease the application process, and many will
be reluctant to assume more debt, even if the debt may be
forgivable.
Yet, another factor is consumer debt, which is at its
highest absolute level in 75 years and at its historically
highest level relative to personal income. Because interest
rates have been and continue to be historically low, however,
household debt service as a percentage of disposable income one
of the leading bankruptcy indicators--is at its historical low.
While interest rates are not anticipated to rise in the
foreseeable future, the impact of the pandemic on household
income virtually guarantees that household debt service will
consume a much larger share of consumers' budgets, ultimately
leading to an increase in bankruptcy filings.
All of this suggests that bankruptcy filings may increase
very significantly across the country.\11\ Significant
increases in bankruptcy filings will place an even greater
strain on staffing resources across the Judiciary and may
require a request for supplemental funding to address backlogs
and delays.
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\11\ Historically, there has always been a lag between economic
difficulties and surges in bankruptcy filings. Typically, it takes
average consumers about six to 18 months to file for bankruptcy after
recognizing that they are in trouble.
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Earlier this year, the Chair of the House Judiciary
Committee along with other Members of Congress asked the
Judicial Conference to issue rules or guidance directing
bankruptcy courts to adopt modified practices and procedures
for electronic signatures, to permit remote appearances for
section 341 meetings and other hearings, and to waive all fees
associated with remote appearances.\12\
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\12\ A detailed explanation of the Conference's rulemaking efforts
in response to the COVID-19 pandemic appears in section III of this
statement.
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As AO Director James Duff explained in his response, this
request was referred to the appropriate Judicial Conference
committees for further consideration and action, as
appropriate. In addition, Director Duff reported that many
bankruptcy courts have entered general orders and revised
procedures on a variety of topics, including courthouse
closures and clerk's office operations, section 341 meetings of
creditors, deadlines and time periods in pending cases,
electronic signature requirements, access to telephonic and
video technology for conducting hearings, and the
implementation of changes to bankruptcy statutes in recent
legislation, including the Coronavirus Aid, Relief, and
Economic Security Act (CARES Act), Public Law, No. 116-136
(2020) and the Small Business Reorganization Act of 2019,
Public Law, No. 116-54 (2019). These orders are compiled
centrally and updated regularly on uscourts.gov.
As Director Duff noted, nearly every bankruptcy court in
the country has entered orders or provided guidance suspending
or modifying ``wet signature'' requirements to allow for
contactless signing and submission of documents during the
crisis. Each court continues to evaluate its individual
circumstances, and those of the states and communities in which
they serve, and will continue to issue revised guidance to
ensure that the bankruptcy system operates safely and
efficiently.
Although the Judicial Conference is responsible for
prescribing fees in bankruptcy cases pursuant to 28 U.S.C.
1930(b), in addition to the filing fees to commence a
bankruptcy case established by section 1930(a), the Conference
has not imposed any fees on parties who wish to appear in
bankruptcy proceedings by telephone or video conference. Many
bankruptcy courts do, however, use third parties such as Court
Solutions, Court Call, or similar vendors to provide critical
network and conferencing technologies for remote hearings.
These vendors set their own fees, and have procedures for
waiving fees so indigent litigants can participate in remote
hearings free of charge. Courts are working to ensure that no
one is denied the right to be heard when appearing remotely
during the pandemic, and the AO has encouraged courts to offer
technologies that are accessible to all.
D. Federal Judiciary Supplemental Funding Request and
Legislative Proposals
In recognition of the unprecedented demands imposed on the
Federal Judiciary by the COVID-19 pandemic, the Judicial
Conference submitted a supplemental funding request and package
of legislative proposals to Congress on April 28, 2020. Among
the most serious challenges faced by the Federal Judiciary is
the need for funds to respond to the COVID-19 pandemic. The
supplemental funding request seeks $36.6 million in
appropriations.
The Federal Judiciary very much appreciates the $7.5
million in supplemental appropriations Congress provided in the
CARES Act to address immediate information technology needs and
increased testing and treatment costs in our probation and
pretrial services program. After our request for that funding,
we worked with courts and Federal defender organizations
nationwide to identify supplemental appropriations needs
associated with COVID-19 pandemic prevention, preparedness, and
response. The $36.6 million will address urgent needs such as
enhanced cleaning of court facilities, health screening at
courthouse entrances, information technology hardware and
infrastructure associated with expanded telework and video
conferencing, costs associated with probation and pretrial
supervision of offenders released from prison early under the
First Step Act and defendants on pretrial release, and
security-related costs.
Enclosure 1 provides additional details of this request:
Courts' Salaries and Expenses Account ($25.0 million), Defender
Services ($9.4 million), and Court Security ($2.2 million). We
note that overall requirements for the courts' salaries and
expenses total $52.5 million, however we have identified $27.5
million in available balances as a partial offset, resulting in
a net supplemental appropriations request of $25.0 million for
this account.
The Judicial Conference has also identified 17 legislative
proposals to address immediate COVID-19 impacts and post-
pandemic operations. The Conference has requested that these
provisions be included in the next supplemental appropriations
bill or similar COVID-19 response legislation.
Enclosure 2 provides a detailed list of these proposals and
an explanation of why they are urgently needed to assist the
Federal Judiciary' s ongoing efforts to respond to the COVID-19
national emergency. All of these proposals have been approved
by the Judicial Conference and draft legislative text is
provided for each. The underlying objective behind every
proposal is to ensure that the Federal Judiciary continues to
meet its constitutional mandate while protecting the health and
safety of court personnel, litigants, and the public. Of
particular, relevance to this Subcommittee are proposals to
ensure adequate judicial resources by converting temporary
judgeships to permanent status and requesting a prudent number
of new judgeships to meet anticipated caseload increases.
The AO also wishes to highlight a proposal that addresses a
growing leave-management issue, as exacerbated by the COVID-19
national emergency, and which corrects a fundamental disparity
between the treatment of certain senior court unit executives
and their counterparts in the executive and legislative
branches. As you can understand, many judicial branch Senior
Executives have been required to undertake extraordinary and
extended efforts, without taking any annual leave, to ensure
the Federal Judiciary continues to function during the COVID-19
pandemic. It is highly unlikely that these employees will be
able to take time off now or in the next several months. We
have submitted a proposal, which is contained in the bipartisan
H.R. 5735--the ``Judicial Branch Senior Executive Leave
Efficiency and Modernization Act of 2020''--that would extend
the authority to carryover up to 720 hours of annual leave to a
defined class of Senior Court Executives. Currently, these
court executives may carryover only 240 hours of annual leave,
unlike most comparable senior level executives in the executive
and legislative branches who are allowed up to 720 hours of
carryover. The proposal was introduced on January 30, 2020 by
Representative Jamie Raskin and Subcommittee Ranking Member
Martha Roby, for which we are very grateful.
The Judicial Branch's 30,000 dedicated professionals--like
public and private sector workers everywhere--continue to
perform their duties admirably during this period of great
uncertainty. As Congress looks to address the COVID-19 related
needs of Federal agencies, State and local governments,
businesses, and individuals, we ask that you consider the
supplemental funding and legislative items included in this
request to ensure the Judicial Branch has the resources needed
to respond and recover from this pandemic.
III. LESSONS FOR THE FUTURE
With respect to lessons for the future, I will focus on the
Judicial Conference's rulemaking efforts in response to the
COVID-19 pandemic and future national emergencies. When the
COVID-19 pandemic was declared a national emergency and the
normal operations of government and business were disrupted
throughout the country, the impact on the Federal courts was
significant. Our justice system has long been based on in-
person proceedings where intereste1 parties not only observe
but participate in the hearings and decisions that affect their
lives. This is particularly critical in criminal cases, where
the Constitution guarantees the defendant's right to be present
in the courtroom at all important steps of his or her case, to
confront witnesses who testify against the defendant, to be
represented by counsel with whom the defendant can communicate
confidentially, and to have the charges against him or her
decided by a jury of their peers who have been selected with
the defendant's participation. Suddenly, this time-honored
system of in-person proceedings presented serious health risks
to all participants and had to be discontinued while the nation
sought to control the spread of the virus. The courts were
required, on short notice, to create a nationally available and
secure infrastructure that would allow them to continue
operations remotely through the virtual participation of
parties, their lawyers, witnesses, the public, and the press.
This required not only technical innovations and adjustments,
but also changes to our rules and procedures. These changes had
to address immediately needs without damaging our carefully
crafted system of justice.
Congress was responsive to these needs, and worked with us
in crafting provisions for the CARES Act that made video and
audio proceedings available during the pandemic for many
pretrial events in criminal cases. Section 15002 of the Act
permits Federal courts, with the consent of the defendant, to
hold initial appearances, preliminary hearings, detention
hearings, changes of plea, and even sentencings by video
conference, or by telephone conferences if video conference is
not reasonably available. This authorization is temporary, and
will expire when the pandemic ends. To possibly avoid the need
for urgent legislation in future emergencies, the CARES Act
directs the Judicial Conference and Supreme Court to consider
whether the various sets of rules should be amended to include
emergency procedures. That work is already under way through
the rules committees of the Federal courts. The Rules Enabling
Act establishes the procedures for amending the Federal Rules
of Civil, Criminal, Appellate, and Bankruptcy Procedure and the
Federal Rules of Evidence. There are six rules committees that
implement these procedures, including one Advisory Committee
for each of the five sets of rules and the Committee on Rules
of Practice and Procedure (also known as the Standing
Committee) which oversees the work of the advisory committees.
Proposed amendments to a particular set of rules are
studied carefully by the Advisory Committee responsible for
those rules, often through a Subcommittee and through empirical
research when warranted. The proposed amendments are then
evaluated in public meetings by the Full Advisory Committee
whose membership is comprised of judges, lawyers, law
professors, and government representatives. If the amendments
seem justified and appropriate, they are published nationally
for a six-month public comment period and are addressed in
public hearings held by the Advisory Committee. To become
effective, the amendments must be finally approved by the
relevant Advisory Committee, the Standing Committee, the
Judicial Conference of the United States, and the Supreme
Court. The proposed amendments are then presented to Congress
for six months before becoming effective, during which time
Congress can act to reject or amend the proposals. This process
is designed to be careful and thorough, to obtain input from
all interested parties, and to produce balanced and fully-
informed decisions.
In response your direction in the CARES Act, the Rules
Committees have started considering possible amendments to the
Federal Rules of Civil, Criminal, Appellate, and Bankruptcy
Procedure and the Federal Rules of Evidence. The committees
began by soliciting public comments during the month of May
from lawyers, judges, parties, and the public on challenges
encountered during the COVID-19 pandemic in State and Federal
courts, and on solutions developed to deal with those
challenges. The committees specifically sought to learn about
problems that could not be addressed through the existing rules
or where the rules themselves interfered with practical
solutions. The deadline for submitting comments was June 1,
2020. Many comments were received and are posted on the
Judiciary's website (https://www.uscourts.gov/rules-policies/
proposed-amendments-published-pubIic-comment/invitation-
comment-emergency-rulemaking).
Comments regarding the civil rules span more than 150
pages. They include suggestions for expediting the service of
process to begin a case and the service of papers during the
case, the use of remote technology for case management and
other hearings, the adjustment of deadlines for completing
pretrial tasks, procedures for taking depositions remotely, and
procedures for conducting trials, both to the court and before
juries, in ways that are safe for all participants, including
the use of remote technology.
Each of the five advisory committees has established a
subcommittee to review possible emergency procedures. Those
subcommittees have started their work. As Chair of the Standing
Committee, I have asked the Advisory Committees to develop
proposed emergency-procedure amendments for consideration at
their fall 2020 meetings. These proposals will also be
addressed at the January meeting of the Standing Committee. The
schedule then calls for the Advisory Committees to refine their
proposals into publication-ready versions that can be addressed
at their Spring 2021 meetings and reviewed by the Standing
Committee next June. If the advisory and Standing Committees
conclude that proposed amendments may be warranted, the
proposals will be published for public comment in August 2021.
Under the Rules Enabling Act procedures, any amendments
produced by this process would take effect in December 2023 if
Congress took no contrary action.
This schedule may seem slow to those not familiar with
Federal court rulemaking, but the Rules Enabling Act is
designed to be deliberative, inclusive, and careful, as it
should be for procedures that so significantly affect the
rights of our citizens. It is important to keep in mind that
these amendments, if they are adopted, will address future
emergencies--they are not being pursued as a means for solving
the current challenges presented by the COVID-19 pandemic.
Mr. Chair, thank you again for the opportunity to discuss
how the Judiciary is addressing the COVID-19 pandemic. I am
happy to respond to your questions.
Enclosure 1
Supplemental Funding
Judiciary
Emergency Supplemental Request for COVID-19 Impact
Courts of Appeals, District courts, and Other Judicial Services
Salaries and Expenses
Legislative Language:
For an additional amount for ``Salaries and Expenses'',
$25,000,000, to prevent, prepare for, and respond to
coronavirus, domestically or internationally: Provided, That
such amount is designated by the Congress as being for an
emergency requirement pursuant to section 25l(b)(2)(A)(i) of
the Balanced Budget and Emergency Deficit Control Act of 1985.
Description of Request:
The Judiciary requests $25.0 million in net additional
emergency supplemental appropriations in the courts' Salaries
and Expenses account to address COVID-19 pandemic impacts in
Appellate, District, and Bankruptcy Courts, and in probation
and pretrial services offices. To identify these additional
requirements, the Administrative Office received input from
courts and probation and pretrial services offices nationwide
on additional COVID-19 funding needs. After analyzing those
requests, the Administrative Office has identified additional
COVID-19 requirements totaling $52.5 million, partially offset
by $27.5 million of available balances, resulting in a Net
Supplemental Appropriations request of $25.0 million, to
address the following emergent needs:
--Enhanced Cleaning. $15.1 million is for enhanced cleaning
of courthouses and court facilities. GSA provides regular
cleaning of court facilities in accordance with tenant
occupancy agreements but will only cover the cost of enhanced
cleaning when there is a confirmed or suspected COVID-19 event
and then only the area(s) accessed by the infected person(s).
The Judiciary requires funding for enhanced cleaning of all
court facilities nationwide to ensure the health and safety of
Judiciary personnel, litigants, and the public. Enhanced
cleaning would begin prior to re-occupancy of court facilities
and be repeated as exposure incidents occur.
--Health Screening at Courthouse Entrances. $15.0 million
is for health screening at courthouse entrances utilizing the
contract vehicle established by GSA for this purpose. Screening
would be provided for 8 weeks.
--IT Infrastructure Costs. $11.2 million is for hardware,
software, licenses, and contract services to support the
Judiciary's National IT infrastructure to address increased
demand due to expanded telework and videoconferencing, as well
as costs associated with continuing to support current IT
system hosting environments due to pandemic-related delays in
migrating to cloud hosting.
--Telework and Videoconferencing Equipment. $7.8 million is
for laptops, printers, and peripherals to enable court and
probation and pretrial services personnel to be fully telework
capable, and for videoconferencing equipment in courts and
detention facilities to facilitate holding criminal proceedings
via electronic versus in-person means.
--Probation and Pretrial Services Supervision Cost. $1.6
million is for increased costs associated with supervision of
offenders released from prison and defendants on pretrial
release, including mental health and drug testing and
treatment, location monitoring, and Second Chance Act related
expenses such as temporary housing for offenders/defendants.
--Other Costs. $1.8 million is for miscellaneous equipment
and supplies.
As identified above, $25.0 million in additional
supplemental appropriations, combined with $27.5 million in
available Judiciary balances, would enable the Judiciary to
fund these COVID-19 emergency requirements totaling $52.5
million.
Judiciary
Emergency Supplemental Request for COVID-19 Impact
Courts of Appeals, District courts, and Other Judicial Services
Defender Services
Legislative Language:
For an additional amount for ``Defender Services'',
$9,400,000, to prevent, prepare for, and respond to
coronavirus, domestically or internationally: Provided, that
such amount is designated by the Congress as being for an
emergency requirement pursuant to section 251(b)(2)(A)(i) of
the Balanced Budget and Emergency Deficit Control Act of 1985.
Description of Request:
The Judiciary requests $9.4 million in additional emergency
supplemental appropriations in the Defender Services account to
address COVID-19 pandemic impacts in Federal defender
organizations, which provide legal representation and other
services to persons who are financially unable to obtain them
in criminal and related matters in Federal court. To identify
these additional requirements, the Administrative Office
received input from Federal defender organizations nationwide
on additional COVID-19 funding needs. After analyzing those
requests, the Administrative Office has identified additional
COVID-19 requirements totaling $9.4 million to address the
following emergency needs:
--IT Equipment and Infrastructure Upgrades. $7.9 million is
for hardware, software, and contract services to enable Federal
defender organization personnel to be fully telework capable,
to support the Federal Defender National IT infrastructure to
address increased demand due to expanded telework and
videoconferencing, and for telecommunications upgrades to
enable remote management of Federal Defender Organization phone
systems.
--Enhanced Cleaning. $1.5 million is for enhanced cleaning
of Federal defender organizations' office space. GSA provides
regular cleaning of Federal public defender offices in
accordance with tenant occupancy agreements but will only cover
the cost of enhanced cleaning when there is a confirmed or
suspected COVID-19 event and then only the area(s) accessed by
the infected person(s). The Judiciary requires funding for
enhanced cleaning of all Federal Public Defender offices and
grant-funded Community Defender offices to ensure the health
and safety of Federal Defender organization personnel and their
clients.
Judiciary
Emergency Supplemental Request for COVID-19 Impact
Courts of Appeals, District courts, and Other Judicial Services
Court Security
Legislative Language:
For an additional amount for ``Court Security'',
$2,200,000, to prevent, prepare for, and respond to
coronavirus, domestically or internationally: Provided, That
such amount is designated by the Congress as being for an
emergency requirement pursuant to section 251(b)(2)(A)(i) of
the Balanced Budget and Emergency Deficit Control Act of 1985.
Description of Request:
The Judiciary requests $2.2 million in emergency
supplemental appropriations in the Court Security account to
address security related COVID-19 pandemic impacts in the
Federal courts. The funding will address the following needs:
--Remote Security. $1.8 million is for software and
equipment that will enable court staff to renew security
certificates for Judiciary Personal Identity Verification-
Interoperable (PIV-I) cards remotely. This software and
equipment will allow court staff currently teleworking to reset
their security pins for digital signatures due to pin
expiration or for other reasons without having to risk health
and safety by physically going to the office.
--Personal Protective Equipment. $0.4 million is to
purchase personal protective equipment (gloves, masks, hand
sanitizer, disinfecting wipes, etc.) for court security
officers.
Enclosure 2
Legislative Provisions
Probation Resources on Higher-Risk Offenders
Description: Allow the courts to terminate the supervised
release term of an inmate who is no longer a threat and would
not benefit from continued supervision. Inmates who have been
compassionately released elderly home confinement program or
prerelease custody or supervised release for risk and needs
assessment, would not need to wait for the statutorily required
completion of one year.
Justification: As more inmates are released during the
COVID-19 pandemic, placing an increased burden on court
probation services, this legislative proposal would allow
courts to terminate the period of supervised release of an
offender who does not require intensive probation supervision
prior to the current minimum of one year. This proposal would
relieve probation officers of some of their unnecessary
workload, allowing them to focus their limited resources where
most needed. Legislative and policy developments, such as the
First Step Act, the CARES Act, and the Attorney General's
directives to the BOP, are resulting in even more of these
cases burdening Probation Officers and costing taxpayer money
which is unnecessary for many compassionate, elderly, and other
release cases. An extended period of supervision in the
community is generally unnecessary to ensure public safety and
may even, in some cases, be counterproductive.
Application: Section 3583(e)(l) of title 18 currently
specifies that early termination of supervision may occur only
after one year when warranted by the conduct of the defendant
released and the interest of justice. With an increasing number
of persons being released from incarceration early and spending
an extended period of time on prerelease confinement as a
result of recently enacted laws, including persons under
compassionate release or who have served a period of prerelease
custody under 34 U.S.C. 6054I(g) (elderly home confinement
program), 18 U.S.C. 3624(c) (prerelease custody), or 18 U.S.C.
3624(g) (prerelease custody or supervised release for risk and
needs assessment system participant), the one-year waiting
period may be too long for the best interest of the defendant,
public safety, and the Administration of the criminal justice
system. These offenders include many elderly and terminally ill
persons who, independently of their own conduct, may be
physically incapacitated, dying, or aged to the point that they
are no longer a risk to the community and cannot meaningfully
engage in the supervision process. In addition, the requirement
is sometimes redundant because probation officers would be
providing supervision and assistance to persons on supervised
release who have already received such services during the
period of home confinement. Relieving the responsibility of
supervision in these cases would alleviate workload demands on
probation officers and allow them to focus on higher priority
cases.
Proposed Legislative Language:
SEC._ ALLOWING EARLY TERMINATION OF SUPERVISED RELEASE
Section 3583(e)(1) of title 18, United States Code, is
amended by inserting after ``the interest of justice'' the
following:
``except that in the case of a defendant released from
imprisonment under sections 3582(c)(l), 3624(c), or 3624(g) of
that title or under section 60541(g) of title 34, United States
Code, terminate a term of supervised release and discharge the
defendant at any time, pursuant to the provisions of the
Federal Rules of Criminal Procedure relating to the
modification of supervised release, if it is satisfied that
such action is in.the interest of justice.''
Keeping Non-Dangerous Defendants Out of Prison Prior to Trial
Description: Reduce unnecessary pretrial detention of
certain low-risk defendants charged with drug trafficking
offenses by: (1) Limiting the application of the presumption of
detention to defendants whose criminal history suggests that
they pose a higher risk of failing to appear for court
proceedings or that they may be a danger to the community; and
(2) removing the presumption from other low-risk defendants.
Justification: The COVID-19 pandemic has created dire
circumstances in many Federal prisons, including those in which
the Attorney General has declared an emergency. This proposal
would help by allowing some defendants, who would ordinarily be
required to be detained, to be placed under community
supervision while awaiting trial. Efforts are being made at the
Bureau of Prisons, pursuant to the Attorney General's
directives, to release as many prisoners as possible to home
confinement under the compassionate release program and to take
the virus into account when making pre-trial release
recommendations. Congress has also authorized additional
compassionate releases in the CARES Act.
Application: This provision reduces unnecessary pretrial
detention of certain low-risk defendants charged with drug
trafficking offenses by limiting the application of the
presumption of detention to defendants whose criminal history
suggests that they pose a higher risk of failing to appear for
court proceedings or that they may be a danger to the
community. Section 3142(e) of title 18 creates a presumption
that certain defendants should be detained pending trial
because a court cannot craft conditions of community
supervision that would reasonably assure both the safety of the
community and the defendant's appearance at court proceedings.
The statute identifies several categories of defendants to whom
this presumption applies, including those charged with specific
drug trafficking offenses, and places the burden on a defendant
to rebut the presumption for detention. In keeping with its
support of evidence-based supervision practices, the
Administrative Office of the U.S. Courts conducted a study
analyzing data collected from a ten-year period. The study
reveals that a sizeable segment of low-risk defendants falls
into the category of drug traffickers subject to the
presumption of detention. The study concluded that these
defendants are detained at a high rate, even when their
criminal histories and other applicable risk factors indicate
that they pose a low risk of either reoffending or absconding
while on pretrial release, and arguably should be released for
pretrial supervision.
Legal, policy, and budgetary factors--including the
presumption of innocence and the relative costs of
incarceration versus pretrial supervision--support reducing
unnecessary pretrial detention. Therefore, the Judicial
Conference endorsed limiting the application of the presumption
of detention to defendants who meet these particular criteria,
which would enable judges to make pretrial release decisions
for low-risk defendants on a case-by-case basis. No defendant
would be automatically released into the community if this
proposal were enacted.
Proposed Legislative Language:
SEC._ REDUCING UNNECESSARY PRETRIAL DETENTION OF LOW-RISK DEFENDANTS
Section 3142(e)(3)(A) of title 18, United States Code, is
amended by inserting the following before the semicolon:
``and such person has previously been convicted of two or more
offenses described in subsection (f)(l) of this section, or two
or more State or local offenses that would have been offenses
described in subsection (f)(1) of this section if a
circumstance giving rise to Federal jurisdiction had existed,
or a combination of such offenses.''
Compassionate Release Requests in District courts Before
Administrative Exhaustion by Reducing Unnecessary Electronic
Monitoring
Description: To allow filing compassionate release motions
directly to District court without 30-day exhaustion of
administrative remedies if waiting would cause irreparable harn
to inmates during the National Emergency declared by the
President under the National Emergencies Act (50 U.S.C. 1601 et
seq.) with respect to COVID-19 and ending 30 days after the
National Emergency terminates.
Justification: District courts are severely constrained by
the statute's Administrative Exhaustion Provision, especially
in the midst of the COVID-19 pandemic. The 30-day lapse
requirement in particular has prevented District courts from
timely reviewing the petitions of vulnerable inmates who claim
serious and irreparable harm to their health. According to
reports from defenders working with Bureau of Prison (BOP)
facilities across the country, there have been significant
delays in BOP's response to requests for compassionate release.
These delays assume that the requests can even be made. For
example, inmates in transit often do not have a warden to whom
they can submit a compassionate release request. Likewise,
inmates in a number of jurisdictions have reported wardens or
case managers refusing to even accept such requests, rendering
the Administrative Exhaustion Process practically unavailable.
Inmates at the BOP Federal Correctional Complex in Oakdale,
Louisiana (F.C.C. Oakdale) have reported that their
compassionate release requests have been returned to them
unanswered. Attorney General William Barr named F.C.C. Oakdale
as one of three BOP institutions that needed to focus on
releasing vulnerable inmates because of the acute, deadly, and
widespread COVID-19 outbreak. The first BOP inmate COVID-
related death sadly occurred at F.C.C. Oakdale. The Office of
the Warden at Taft Correctional Institution in Taft, California
went so far as to issue an official memo stating that
administrative requests would not be answered and that ``no
further requests would be addressed.''
Application: Amend 18 U.S.C. 3582 to allow a defendant,
once he or she has filed a request for compassionate release
relief with the BOP, to file a motion for compassionate release
directly in the District court before 30 days have lapsed if
the exhaustion of administrative remedies would be futile or
the 30-day lapse would cause serious harm to the defendant's
health due to the COVID-19 pandemic. This legislation would be
effective during the national emergency declared by the
President under the National Emergencies Act (50 U.S.C. 1601 et
seq.) with respect to COVID-19 and end 30 days after the
National Emergency terminates.
Proposed Legislative Language:
SEC._ COMPASSIONATE RELEASE REQUESTS BEFORE ADMINISTRATIVE EXHAUSTION
Subsection (c)(1)(A) of section 3582 of title 18, United
States Code, is amended as follows:
The court, upon motion of the Director of the Bureau of
Prisons, or upon motion of the defendant after the defendant
has fully exhausted all administrative rights to appeal a
failure of the Bureau of Prisons to bring a motion on the
defendant's behalf or the lapse of 30 days from the receipt of
such a request by the warden of the defendant's facility,
whichever is earlier, or, effective during the National
Emergency declared by the President under the National
Emergencies Act (50 U.S.C. 1601 et seq.) with respect to COVID-
19 and end 30 days after the National Emergency terminates,
upon motion by the defendant submitted to the court upon a
showing that administrative exhaustion would be futile or that
the 30-day lapse would cause serious harm to the defendant's
health, may reduce the term of imprisonment (and may impose a
term of probation or supervised release with or without
conditions that does not exceed the unserved portion of the
original term of imprisonment), after considering the factors
set forth in section 3553(a) to the extent that they are
applicable, if it finds that--
Focusing Scarce Electronic Monitoring Resources on
Higher Risk Offenders
Description: Allow district judges to waive the electronic
monitoring condition required for pretrial release in certain
cases when a more restrictive condition of confinement and
monitoring is imposed on an offender, so that scarce monitoring
equipment and probation officer resources can be applied where
most needed.
Justification: This provision would lessen the extreme
pressures being faced by probation offices, especially the
electronic location monitoring provision, caused by the COVID-
19 pandemic emergency.
Application: This provision allows district judges to waive
the electronic monitoring condition required for pretrial
release in certain cases when a more restrictive condition is
imposed on an offender thus allowing monitoring equipment and
probation officer time to focus on where it is needed more. As
part of the Adam Walsh Child Protection and Safety Act of 2006
(Pub. L., No. 109-248), section 3142(c)(l)(B) of title 18, was
amended to require the court to impose electronic monitoring as
a condition of pretrial release in any case that involves a
minor victim under various title 18 offenses or a failure to
register offenses under 18 U.S.C. 2250. The condition is
required, however, even if the court imposes another, more
restrictive condition such as residing in a halfway house or
participating in a residential treatment program. The Adam
Walsh Act was enacted, among other things, ``[to] protect
children from sexual exploitation and violent crime, to prevent
child abuse and child pornography, [and] to promote Internet
safety.'' Elimination of the requirement to impose an
electronic monitoring condition in cases where the defendant is
confined and monitored in a secure residential setting would
not jeopardize these goals. Moreover, installing the electronic
monitoring equipment in halfway houses and treatment facilities
carries unnecessary costs consisting of equipment rental,
monitoring time, and labor.
Proposed Legislative Language:
SEC._ EFFICIENT USE OF ELECTRONIC MONITORING CONDITIONS
The first undesignated paragraph of section 3142(c)(1)(B)
of title 18, United States Code, is amended by adding the
following after the reference to (viii) in (xiv):
``except that the electronic monitoring condition may be waived
if the judicial officer determines that a more restrictive
condition is necessary to ensure the appearance of the person
as required or to ensure the safety of any other person and the
community.''
Focusing Pretrial Officer Resources on Higher Risk Defendants
by Eliminating Mandatory Reports That Have No Use
Description: Authorizes a District court to direct that a
pretrial services bail report need not be prepared in certain
cases where the report would not be useful in the court's
determination of release or detention because the defendant is
already in custody or has a detainer.
Justification: This legislative proposal would help reduce
workload burdens on probation and pretrial services offices
caused by the COVID-19 pandemic emergency, and allow pretrial
services to be deployed where more needed.
Application: This proposal authorizes a District court to
direct that a pretrial services bail report not be prepared in
certain cases where the report would not be useful in the
court's determination of release or detention. Section 3154(1)
of title 18 directs officers to prepare bail reports on each
person charged with an offense, ``except that a District court
may direct that information not be collected, verified, or
reported under this paragraph on individuals charged with class
A misdemeanors as defined in section 3559(a)(6) of [Title
18].'' This exception does not apply to felony offenses, even
though certain defendants appearing before the courts have
little or no chance of being released pending trial. For
example, defendants who are already serving sentences in
Federal, State, or local custody on other charges would not be
eligible for pretrial release, nor would most defendants who
are illegal aliens subject to an immigration detainer.
This amendment to section 3154(1) would give the court
discretion to waive the preparation of a pretrial services
report in cases where the report would have little or no
bearing on the court's release decision, thereby conserving the
resources of the probation or pretrial services office.
Specifically, the court could waive the bail report requirement
if the defendant is subject to an ICE detainer or if the
defendant is already in Federal, State, or local custody in
connection with a previous conviction.
Proposed Legislative Language:
SEC._ WAIVER OPTION FOR UNNECESSARY BAIL REPORTS
Section 3154(1) of title 18, United States Code, is amended
by inserting before the end of the sentence:
``individuals described in section 3142(d)(l)(B) of this title,
or individuals who are already in Federal, State, or local
custody in connection with a previous conviction.''
Focusing Probation Officer Resources Where Most Needed by
Eliminating Duplicative Notifications
Description: Eliminate the duplicate notification
requirement for victims to reduce the informational burden on
victims and focus Probation Officer resources where most
needed.
Justification: This legislative proposal would help reduce
workload burdens on probation and pretrial services offices
caused by the COVID-19 pandemic emergency.
Application: This proposal streamlines victim notification
requirements to reduce the burden on victims and increase
governmental efficiency. As part of the Mandatory Victims
Restitution Act of 1996, Probation Officers are required by 18
U.S.C. 3664(d)(2) to provide the victims of an offense with
notice of the defendant's conviction, the sentence date, and
the victim's opportunity to submit an impact statement. The
officer is also required to provide the victim with an
affidavit form to submit a claim for restitution. In a similar
fashion, the Crime Victims' Rights Act directs the ``officers
and employees of the Department of Justice and other
departments and agencies of the United States engaged in the
detection, investigation, or prosecution of crime [to] make
their best efforts to see that crime victims are notified of,
and accorded, the rights described in [the Act].'' As a result
of these two provisions, it is not uncommon for probation
officers to contact victims to provide notice and seek a
statement after employees of an executive branch agency have
already done so. This duplication of effort is wasteful, and
sometimes confuses or upsets victims, who may already be
overwhelmed by the criminal justice system. Amending section
3664(d)(2) to eliminate the current duplication of efforts in
cases with identifiable victims will conserve resources and
provide victims with a single point of contact. Because the
executive branch already has an obligation under section
3771(c)(1) and would most likely have contact with such victims
long before sentencing, it makes sense to eliminate the
redundant duties assigned to probation officers. In the event
the executive branch agencies failed to contact a victim, the
Probation Officer would then provide the notice.
Proposed Legislative Language:
SEC._ STREAMLINING VICTIM NOTIFICATION PROVISIONS
Section 3664(d)(2) of title 18, United States Code, is
amended by inserting the following undesignated paragraph after
section 3664(d)(2)((B):
``The required notice and provision of an affidavit form in
foregoing subparagraphs (A) and (B) may be excused if a person
identified in section 3771(c)(1) has already provided notice
and an affidavit form to the victim.''
Maximizing Use of Probation Resources on Higher Risk Offenders
by Clarifying Obligations for Prerelease Custody
Description: To maximize the use of probation resources by
hannonizing the standard for the three circumstances under
which the probation system is authorized to supervise inmates
in the custody of the Bureau of Prisons (BOP) who have been
placed on prerelease custody to be ``to the extent
practicable.''
Justification: The differing language for all three
provisions creates inconsistent requirements for U.S.
probation's involvement in assisting inmates on prelease
custody. Amending the more compulsory language of 18 U.S.C.
3624(c) and 34 U.S.C. 60541(g) to track the more permissive
language of 18 U.S.C. 3624(g) would clarify and harmonize the
various obligations of the probation system to assist inmates
on prelease custody. More importantly, the probation system
does not always have the resources to supervise prelease
inmates. The lack of resources is even more of an issue under
the expanded release authorities of the First Step Act and in
response to the COVID-19 pandemic. Additionally, any
arrangement to supervise prerelease inmates should be jointly
agreed to by the BOP and the probation system.
Application: There are three different statutory provisions
that discuss the obligation of the probation system to assist
inmates on prerelease custody: 18 U.S.C. 3624(c) and (g), and
34 U.S.C. 60541(g). Under the three provisions, Probation
Officers are authorized to supervise inmates in the custody of
the BOP who have been placed on prerelease custody. However,
all three provisions set forth different degrees to which
officer assistance is authorized. If an individual is released
under 18 U.S.C. 3624(c), then the U.S. probation system must,
``to the extent practicable,'' offer assistance to the
individual during prerelease custody. In comparison, if an
individual is released under 18 U.S.C. 3624(g), then the BOP
must, ``to the greatest extent practicable,'' enter into an
agreement with the U.S. probation system to supervise the
individual, and the probation system must ``to the greatest
extent practicable'' offer assistance to any prisoner not under
its supervisions during prerelease custody. If an individual is
released under the elderly and family reunification for certain
nonviolent offenders pilot program, pursuant to 34 U.S.C.
60541(g), probation ``shall provide such assistance and carry
out such functions as the Attorney General may request in
monitoring, supervising, providing services to, and
evaluating'' that individual. The three standards should be
made consistent by amending 18 U.S.C. 3624(c) and 34 U.S.C.
1(g) to require the probation system to provide assistance only
``to the extent practicable.''
Proposed Legislative Language:
SEC._ CLARIFYING AND HARMONIZING THE OBLIGATION OF THE U.S. PROBATION
SYSTEM TO ASSIST INMATES ON PRERELEASE CUSTODY
(a) Section 3624(c)(3) of title 18, United States Code, is
amended by striking ``shall'' and inserting ``should'' after
``The United States Probation System.''
(b) Section 3624(g)(7) of title 18, United States Code, is
amended by striking ``shall'' after ``Bureau of Prisons'' and
inserting ``should'' in its place, and by striking ``greatest''
before ``extent practicable.''
(c) Section 3624(g)(8) oftitle 18, United States Code, is
amended by striking ``shall'' after ``United States Probation
and Pretrial Services'' and replacing it with ``should,'' and
by striking ``greatest.''
(d) Section 60541(g)(4) of title 34, United States code is
amended by striking ``shall provide'' and inserting in its
place ``should, to the extent practicable, provide.''
Increase the Speed of Consideration of Compassionate
Release Motions
Description: Facilitate provision of medical records needed
in compassionate release motions to courts, probation officers,
and defense counsel in a prompt manner or as ordered by the
court so that a defendant's motions can be decided as quickly
as possible.
Justification: The First Step Act expanded compassionate
release procedures by authorizing an inmate to file a motion
directly with the court based on the earlier of exhaustion of
administrative remedies or the lapse of 30 days from the
warden's receipt of a request. The expanded procedures, as well
as the recent COVID-19 pandemic, have led to an increase in
requests for compassionate release to both the Bureau of
Prisons (BOP) and the courts. With the increased number of
requests, there have been delays in providing inmate medical
records to the courts, defense counsel, and probation offices
in a timely manner to assess whether an inmate may qualify for
compassionate release based on medical needs.
Application: At present there have been delays obtaining
inmates' medical records by the courts, probation officers,
defense counsel, and inmates themselves due to limited BOP
staff and the increase in such motions due to COVID-19. Under
this provision, 18 U.S.C. 3582(c)(1)(A) would be amended to add
that if a motion for modification of an imposed term of
imprisonment includes as a basis for relief that medical
conditions warrant such a reduction, the defendant's BOP
medical records must be made accessible ``promptly'' or in a
time frame ordered by the court, to the court, the probation
office, the attorney for the government, and the attorney for
the inmate. Under 34 U.S.C. 60541(d)(5), the BOP is already
directed to ``provide the United States Probation and Pretrial
Services System with relevant information on the medical care
needs and the mental health treatment needs of inmates
scheduled for release from custody.'' The proposed amended to
section 3582 would be an expansion of this requirement and
include an explicit directive that medical records be provided.
Proposed Legislative Language:
SEC._ INCREASING ACCESS TO BOP MEDICAL RECORDS FOR COMPASSIONATE
RELEASE MOTIONS
Section 3582(c)(1)(A) of title 18, United States Code, is
amended by inserting the following after ``Sentencing
Commission'' and before the semicolon:
``If a motion for reduction of the imprisonment term includes
as a basis for relief that the defendant's medical condition
warrants a reduction, the Bureau of Prisons shall promptly
produce the defendant's Bureau of Prisons medical records to
the court, the probation office, the attorney for the
government, and the attorney for the inmate. If additional time
is required by the Bureau of Prisons to produce such records,
they shall be produced in a time frame ordered by the court.''
Preserve Existing Article III Judicial Resources
Description: Preserve and maximize existing judicial
resource by converting existing temporary judgeships to
permanent status.
Justification: When the courts reconstitute after the
COVID-19 pandemic, the strain will be even greater since there
will be a backlog of cases that could not be adjudicated during
the pandemic. The conversion of temporary judgeships will
ensure these judicial resources are not lost and would help
ease that strain by providing permanent help, in particular,
courts where help is needed now more than ever. The Judiciary
requested this change prior to the pandemic; however, the
pandemic has highlighted the strain that many courts are
experiencing due to overwhelming caseloads and an inadequate
number of judges.
Application: Convert the following eight existing temporary
judgeships to permanent status:
1--Kansas
1--Missouri Eastern
1--Arizona
1--California Central
1--Florida Southern
1--New Mexico
1--North Carolina Western
1--Texas Eastern
For your information, two additional temporary judgeships
exist--one each in Alabama Northern and Hawaii.
Proposed Legislative Language:
A bill has been introduced in the Senate to accomplish the
conversion of the eight temporary judgeships requested by this
proposal. S. 3086, the ``Temporary Judgeship Conversion Act of
2019,'' was introduced by Senator Moran (KS) on December 18,
2019 and referred to the Senate Committee on the Judiciary.
That bill language follows:
SEC._ DISTRICT JUDGES FOR THE DISTRICT COURTS
(a) In General. The existing judgeships for the district of
Kansas and the eastern district of Missouri authorized by
section 203(c) of the Judicial Improvements Act of 1990 (Pub.
L. 101-650; 28 U.S.C. 133 note) and the existing judgeships for
the eastern district of Texas, the district of Arizona, the
central district of California, the southern district of
Florida, the western district of North Carolina, and the
district of New Mexico authorized by section 312(c) of the 21st
Century Department of Justice Appropriations Authorization Act
(Pub. L. 107-273; 28 U.S.C. 133 note), as of the effective date
of this Act, shall be authorized under section 133 of title 28,
United States Code, and the incumbents in those offices shall
hold the office under section 133 of title 28, United States
Code, as amended by this Act.
(b) Tables. In order that the table contained in section
133(a) of title 28, United States Code, will, with respect to
each judicial district, reflect the changes in the total number
of permanent district judgeships authorized as a result of
subsection (a)--
(1) The item relating to Arizona is amended to read as
follows:
``Arizona............................. 1'';
(2) The item relating to California is amended to read as
follows:
``California: ..............................
Northern.............................. 14
Eastern............................... 6
Central............................... 28
Southern.............................. 13'';
(3) The item relating to Florida is amended to read as
follows:
``Florida: ..............................
Northern.............................. 4
Middle................................ 15
Southern.............................. 18'';
(4) The item relating to Kansas is amended to read as
follows:
``Kansas.............................. 6''
(5) The item relating to Missouri is amended to read as
follows:
``Missouri: ..............................
Eastern............................... 7
Western............................... 5
Eastern and Western................... 2'';
(6) The item relating to New Mexico is amended to read as
follows:
``New Mexico.......................... 7";
(7) The item relating to North Carolina is amended to read
as follows:
``North Carolina: ..............................
Eastern............................... 4
Middle................................ 4
Western............................... 5'' and
(8) By striking the item relating to Texas and inserting
the following:
``Texas: ..............................
Northern.............................. 12
Southern.............................. 19
Eastern............................... 8
Western............................... 13''.
Emergency Supplemental Judgeships
Description: It has been decades since the Judiciary's
judgeships needs were comprehensively addressed by Congress,
and the pandemic has further highlighted the strain many courts
are experiencing due to overwhelming caseloads and an
inadequate number of judges. This proposal would add seven
additional judgeships to a subset of courts that are in extreme
need.
Justification: When the courts reconstitute after the
COVID-19 pandemic, the strain will be even greater since there
will be a backlog of cases that could not be adjudicated during
the pandemic. Two of the districts in extreme need of
additional judgeships, the Eastern District of California and
the District of Arizona, have declared judicial emergencies
(under 18 U.S.C. 3714) due to the effects of the pandemic.
These declarations were made because those two courts have
calendars that are so congested that they are unable to meet
certain statutory time limits to hear cases. Those time limits
are suspended due to the anticipated backlog of cases. All
seven of these additional judgeships will be paramount to their
courts post-pandemic to help those courts reconstitute and
recover.
Application: The Judiciary requested additional judgeships
prior to the pandemic. Seven additional judgeships, which were
included in the Judicial Conference judgeships request
submitted last year, would be added as follows:
1--Indiana Southern
1--Delaware
1--New Jersey
1--Texas Western
1--Arizona
1--Florida Southern
1--California Eastern
Proposed Legislative Language: See attached language.
SEC._ DISTRICT JUDGES FOR THE DISTRICT COURTS
(a) The President shall appoint, by and with the advice and
consent of the Senate:
(1) 1 additional District Judge for the District of
Arizona;
(2) 1 additional District Judge for the Eastern District
of California;
(3) 1 additional District Judge for the District of
Delaware;
(4) 1 additional District Judge for the Southern District
of Florida;
(5) 1 additional District Judge for the Southern District
oflndiana;
(6) 1 additional District Judge for the District of New
Jersey;
(7) 1 additional District Judge for the Western District
of Texas.
(b) Tables. In order that the table contained in section
133(a) of title 28, United States Code, will, with respect to
each Judicial district, reflect the change in the total number
of permanent district judgeships authorized as a result of
subsec-tion (a)--
(1) The item relating to Arizona is amended to read as
follows:
``Arizona............................. 13'';
(2) The item relating to California is amended to read as
follows:
``California: ..............................
Northern.............................. 14
Eastern............................... 7
Central............................... 7
Southern.............................. 13";
(3) The item relating to Delaware is amended to read as
follows:
``Delaware............................ 5'';
(4) The item relating to Florida is amended to read as
follows:
``Florida: ..............................
Northern.............................. 4
Middle................................ 15
Southern.............................. 18;
(5) The item relating to Indiana is amended to read as
follows:
``Indiana: ..............................
Northern.............................. 5
Southern.............................. 6
(6) The item relating to New Jersey is amended to read as
follows:
``New Jersey.......................... 18''; and
(7) By striking the item relating to Texas and inserting
the following:
``Texas: ..............................
Northern.............................. 12
Southern.............................. 19
Eastern............................... 7
Western............................... 4''.
(c) Authorization of Appropriations.
There are authorized to be appropriated such sums as may be
necessary to carry out the provisions of this Act, including
such sums as may be necessary to provide appropriate space and
facilities for the judicial positions created by this Act.
Additional Senior Judge Resources for the U.S. Territorial
District courts
Description: Amend the retirement provisions for judges of
the Federal District courts of the U.S. territories to permit
judges of those courts who have completed a full term and have
at least 15 years of service to immediately serve the court as
Senior Judges.
Justification: This provision will have an immediate
benefit to the judiciary by allowing a judge who has just
completed his term on the U.S. District court for the Virgin
Islands to assume senior status at once (and be able to assist
the court with its caseload) rather than having to wait a
number of years until attaining age 65, as required under
current law. This wiU provide an additional resource to the
comt at a time when the ability for visitin g judges to travel
to fill the gap is effectively nullified given the prevalence
of COVID-19 and associated shelter-in-place orders. The
territorial District courts have active dockets. Increasing the
availability of senior judges, as provided for in this
proposal, would provide a key resource for the Federal
Judiciary in the Territories during this time of crisis and
will ensure continued functioning of the territorial District
courts without disruption of functions or compromise of
Constitutional safeguards.
Application: There are three U.S. District courts in the
U.S. territories--Guam, the Virgin Island, and the Nolthem
Maliana Islands (NMI), with four judgeships (two in the Virgin
Islands and one each in Guam and NMI). The judges of these
courts are appointed by the President and confirmed by the
Senate for a term of 10-years or until their successor is
appointed. The current retirement statute does not allow
district judges in the territories who have completed a term of
service to immediately enter senior service if they are under
the age of 65. This provision would allow judges who have
completed a term and have at least 15 year of service to serve
the court as Senior Judges before reaching age 65. Currently,
Guam and the Virgin Islands have no senior judges. NMI has one
senior judge who lives in Idaho and cannot now travel to NMI.
If the term of service for each of the current judges in the
Territories ends during the course of this pandemic, under the
current statutory scheme, none of the judges would be able to
serve as a Senior Judge. This provision would provide, over the
next 16 months, as many as four Senior Judges--two for the
Virgin Islands, one for Guam, and one for NMI.
Proposed Legislative Language:
A bill has been introduced in the House to accomplish this
proposal. H.R. 6593, the ``Territorial Judgeship Retirement
Equity Act of 2020,'' was introduced by Delegates San Nicolas
(Guam), Sablan (Northern Marianas Islands), and Plaskett
(Virgin Islands), on April 21, 2020. See attached bill.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Eliminating Inefficient and Unfair Annual Leave Treatment for
Senior Court Executives, as Exacerbated by the COVID-19
National Emergency
Description: This proposal addresses a fundamental
disparity, as exacerbated by the COVID-19 national emergency,
between the treatment of certain Senior Court Unit Executives
and their counterparts in the Executive and Legislative
Branches with respect to their ability to carryover unused
annual leave in excess of 240 hours. The proposal would allow
certain Court Unit Executives to carryover up to 720 hours of
annual leave like most comparable Senior Level Executives in
the Executive and Legislative Branches. Currently, Court Unit
Executives may only carryover 240 hours of annual leave.
Justification: In direct response to the COVID-19 pandemic,
many judicial branch Senior Executives have been required to
undertake extraordinary and extended efforts, without taking
any annual leave, to ensure the Federal Judiciary continues to
function and meet its constitutional mandates. Thus, it is
highly unlikely that these employees will be able to take time
off now or in the next several months, at a minimum. Based on
preliminary information on both leave taken and future leave
requests made by Senior Court executives for the period January
1-April 30 of this year, their current and anticipated leave
usage is less than 50 percent of the leave taken and/or planned
for the comparable period in both 2018 and 2019.
Application: Senior executives within the Federal
Government are often unable to use all their accrued annual
leave given their critical management responsibilities. For
this reason, Senior Executives throughout the Executive and
Legislative Branches have long been granted statutory authority
to carry over up to 720 hours of accrued annual leave for use
in future years. Unfortunately, similar authority has not been
extended to Senior Executives in the Federal courts, the
Federal Judicial Center, or the U.S. Sentencing Commission,
even as these Senior Executives experience similar management
demands and significant limitations on their ability to take
leave. This proposal addresses this disparity by extending to
specified Senior Court Executives the same authority to
carryover up to 720 hours of annual leave as is currently
authorized for Senior Executives throughout the rest of the
Federal Government.
Legislation: This proposal principally consists of the text
of H.R. 5735, the ``Judicial Branch Senior Executive Leave
Efficiency and Modernization Act of 2020,'' a bipartisan
measure that would extend the authority to carryover up to 720
hours of annual leave to Circuit Executives, District court
Executives, Clerks of Court, Chief Probation Officers, Chief
Pretrial Services Officers, Senior Staff Attorneys, Chief Pre-
argument Attorneys, Bankruptcy Administrators, and Circuit
Librarians as well as a limited number of specific senior
positions within the Federal Judicial Center and the Sentencing
Commission. In addition, the proposal would apply to the Clerk
of the Foreign Intelligence Surveillance Court, the Clerk of
the Bankruptcy Appellate Panel, and the Clerk and Panel
Executive of the Judicial Panel on Multidistrict Litigation.
H.R. 5735 was introduced on January 30, 2020 by Representatives
Jamie Raskin (MD) and Martha Roby (AL). Proposed bill language
is attached.
SEC._ CARRYOVER OF ANNUAL LEAVE FOR CERTAIN SENIOR POSITIONS IN THE
JUDICIAL BRANCH OF GOVERNMENT
Paragraph (1) of section 6394(f) of title 5, United States
Code, is amended--
(1) subparagraph (G), by striking ``or'' at the end;
(2) in the first subparagraph (H) (relating to Library of
Congress positions), by striking the period at the end and
inserting a semicolon;
(3) by redesignating the second subparagraph (H) (relating
to positions in the United States Secret Service Uniformed
Division) as subparagraph (I);
(4) in subparagraph (I), as redesignated by paragraph (3),
by striking the period at the end and inserting ``; or''; and
(5) by adding at the end the following:
``(J) any of the following possition within the Judicial
Branch of Government:
``(i) Bankruptcy Administrator as described in section
302(d)(3)(I) of Public Law 99-554.
``(ii) Circuit Executive appointed under section 332(e)
of title 28.
``(iii) Chief Circuit Librarian appointed under section
713(a) of title 28.
``(iv) Senior Staff Attorney appointed under section
715(a) of title 28.
``(v) Federal Public Defender appointed under section
3006A(g)(2)(A) of title 18.
``(vi) Chief Pretrial Services officer appointed under
section 3152(c) of title 18.
``(vii) Chief Probation Officer appointed under section
3602(c) of title 18.
``(viii) Any Clerk appointed pursuant to section
156(b), 711(a), 751(a), 791(a), or 871 of title 28, but not
including any Chief Deputy Clerk, Assistant Clerk, or Deputy
Clerk appointed under such sections. ``(ix) District court
Executive.
``(x) Chief Circuit Mediator.
``(xi) The Director, the Deputy Director, the Director
of the Education Division, the Director of the Research
Division, and the Director of the Information Technology Office
within the Federal Judicial Center.
``(xii) The Staff Director, the Deputy Staff Director,
the General Counsel, the Director of Education and Sentencing
Practices, the Director of Research and Data, the Director of
Legislative and Public Affairs, and the Director of
Administration within the United States Sentencing Commission.
(xiii) The Clerk of Court for the United States Foreign
Intelligence Surveillance Court.
``(xiv) The Clerk of Court and Panel Executive for the
United States Judicial Panel on Multidistrict Litigation.
``(xv) The Clerk of Court for the Bankruptcy Appellate
Panel.''
Amendments to Statutory Bankruptcy Code Deadlines
Description: Provide Bankruptcy Courts with authority to
extend and toll statutory deadlines and time periods during the
COVID-19 National Emergency, where there is currently no
flexibility to do so in either the Bankruptcy Code or other
Federal statutes.
Justification: Courts, Clerks, and parties may be unable to
meet statutory deadlines or Act as required within those time
periods due to emergency conditions as a result of the COVID-19
National Emergency declaration that materially affect the
functioning of a particular bankruptcy court.
Application: Provide Bankruptcy Courts with authority to
extend and toll statutory deadlines and time periods during the
COVID-19 National Emergency, where there is currently no
flexibility to do so in either the Bankruptcy Code or other
Federal statutes, upon a finding that the emergency conditions
due to the National Emergency declaration materially affect the
functioning of a particular Bankruptcy Court. While some
Bankruptcy Courts have entered general orders based on the
COVID-19 crisis that extend certain statutory deadlines, many
Bankruptcy Judges have stated that they feel uncomfortable with
the scope of their apparent authority pursuant to general
orders, and that a statutory fix is necessary. The Bankruptcy
Code includes many deadlines for the court, the Clerk, and
parties in bankruptcy cases, as well as time periods that
expire by operation of law.
Proposed Legislative Language: See attached language.
SEC._ EXTENSION OF TIME IN BANKRUPTCY CASES
(a) Definition. In this section, the term ``covered
emergency period'' means the period beginning on the date on
which the President declared a national emergency under the
National Emergencies Act (50 U.S.C. 1601 et seq.) with respect
to the Coronavirus Disease 2019 (COVID-19) and ending on the
date that is 30 days after the date on which the national
emergency declaration terminates.
(b) Emergency Authority to Extend Deadlines and Time
Periods.
(1) When a provision of title 11 or chapter 6 of title 28,
United States Code:
(A) Requires or allows a Court, Clerk, or any party in
interest to take an action, to commence a proceeding, to file a
motion, to file or send a document, or to hold a hearing by a
specified deadline, or
(B) creates or sets forth a time period that ends or
expires by operation of law; and
(2) the Chief Judge of a Bankruptcy Court (or, if the Chief
Judge is unavailable, the most senior available active
Bankruptcy Judge or the Chief Judge or Circuit Justice of the
circuit that includes the Bankruptcy Court) finds that
emergency conditions due to the National Emergency declared by
the President of the United States under the National
Emergencies Act (50 U.S.C. 1601 et seq.) with respect to the
Coronavirus Disease 2019 (COVID-19) will materially affect the
functioning of a particular Bankruptcy Court of the United
States; then
(3) the Judge or Justice making the finding in subsection
(b)(2) of this section may:
(A) Extend or toll such deadline or time period for all
cases and proceedings in the district (or specific cases or
proceedings), for a period of time not to exceed the duration
of the emergency or major disaster declaration; or
(B) authorize any other judge in the district to extend
or toll such deadline or time period in a specific case or
proceeding, for a period of time not to exceed the duration of
the emergency or major disaster declaration.
(c) Deadlines and Time Periods Upon Termination of
Emergency Authority. Upon termination of the authority under
subsection (e) of this section, any deadline or time period
extended or tolled under subsection (b)(3) of this section
shall be extended or tolled beyond the date on which such
authority under subsection (e) terminates for an additional
period that is the later of: (1) Thirty (30) days or (2) the
period of time originally required, imposed, or allowed by
title 11 or chapter 6 of title 28, or applicable non-bankruptcy
law. On request of a party in interest, and for good cause
shown after notice and a hearing, the court may shorten the
length of an additional period under this subsection.
(d) Exceptions to Emergency Authority. On request of a
party in interest, and for good cause shown after notice and a
hearing, the Court may in a specific case or proceeding waive
any extension or tolling of a deadline or time period under
subsection (b) or (c) of this section.
(e) Termination of Emergency Authority. The authority and
specific authorizations provided under subsection (b) of this
section shall terminate on the earlier of--
(1) the last day of the covered emergency period; or
(2) the date on which the Chief Judge of the Bankruptcy
Court (or, if the Chief Judge is unavailable, the most Senior
available active Bankruptcy Judge or the Chief Judge or Circuit
Justice of the Circuit that includes the Bankruptcy Court)
finds that emergency conditions no longer materially affect the
functioning of that particular Bankruptcy Court.
Authorize 60-Day Extension of Statutory Deadline for Dodd-Frank
Report as a Result of COVID-19 National Emergency
Description: This proposal would extend for approximately
60 days the date on which this report is due from July 21, 2020
to September 18, 2020. Pursuant to 12 U.S.C. 5382(e)(l), the
Director of the Administrative Office of the U.S. Courts (AO)
must study and submit to Congress a report on the bankruptcy
and orderly liquidation process for financial companies under
the Bankruptcy Code. In recognition of the fact that the
completion of this study--which requires comprehensive input
from various parties in the bankruptcy community as well as
from the Federal Judiciary--will likely be impeded by the
COVID-19 pandemic.
Justification: To assist in the preparation of this study,
the AO Director appointed a Dodd-Frank Study Working Group in
2019, whose Members are primarily Bankruptcy Judges sitting in
New York, Delaware, Michigan, and Maryland, areas where the
COVID-19 pandemic has been particularly devastating. In turn,
the Task Force's ability to obtain the information from the
bankruptcy community necessary to complete this study and
prepare the report may be delayed. Accordingly, the proposal
seeks an approximate 60-day extension of the statutory due date
to ensure compliance.
Application: As amended, the change would provide an
approximate 60-day extension to submit the report required by
section 5382(e)(l), from July 21, 2020 to September 18, 2020.
Proposed Legislative Language:
SEC._ EXTENSION OF STATUTORY DEADLINE FOR DODD-FRANK REPORT
``The deadline set by 12 U.S.C. 5382(e)(2), of no later than
July 21, 2020, for the Administrative Office of the United
States Courts to submit to the Committee on Banking, Housing,
and Urban Affairs and the Committee on the Judiciary of the
Senate and the Committee on Financial Services and the
Committee on the Judiciary of the House of Representatives a
report summarizing the results of the studies conducted under
12 U.S.C. 5382(e)(l), is hereby extended to September 18,
2020.''
Ensuring Adequate Bankruptcy Judicial Resources
Description: Convert fourteen temporary bankruptcy
judgeships to permanent status.
Justification: The economic impact of the COVID-19 pandemic
in some respects exceeds that of the 2008 Great Recession. More
than one in ten Americans is unemployed and various industries
have been particularly devastated, including the retail,
travel, and automotive sectors, among others. The expected
increase in bankruptcy reorganization cases, particularly in
Delaware, will likely result in a significant workload increase
as these cases often involve very complex and time-consuming
matters that require extensive judicial resources. The
districts included in this request demonstrated a need for
conversion of these positions to permanent status prior to the
COVID-19 pandemic. Filings across the nation, including in each
of the districts included in this request, are expected to
increase significantly during the recovery from COVID-19. These
temporary judgeships have expired or are due to expire in 2022
and 2024.
Application: Convert the following 14 temporary bankruptcy
judgeships to permanent status:
7--Delaware
2--Puerto Rico
2--Michigan Eastern
I--Maryland
1--Florida Middle
1--Florida Southern
Proposed Legislative Language: See Attached Language.
SEC._ CONVERSION OF EXISTING TEMPORARY BANKRUPT-CY JUDGESHIPS
(a) District of Delaware--
(1) The four (4) temporary bankruptcy judgeships authorized
for the District of Delaware pursuant to section 1223(b)(l)(C)
of Public Law 109-8 (2005), as extended by section 2(a)(l)(C)
of Public Law 112-121 (2012) and further extended by section
1002(a)(l)(A) of Division B of Public Law 115-72 (2017) (28
U.S.C. 152 note), are converted to permanent bankruptcy
judgeships under section 152(a)(2) of title 28, United States
Code.
(2) The two (2) temporary bankruptcy judgeships authorized
for the district of Delaware pursuant to section 1003(a)(1) of
Division B of Public Law 115-72 (2017) (28 U.S.C. 152 note),
are converted to permanent bankruptcy judgeships under section
152(a)(2) of title 28, United States Code.
(3) The temporary bankruptcy judgeship authorized for the
District of Delaware pursuant to section 3(a)(3) of Public Law
102-361 (1992), as amended by section 307 of title III of
Public Law 104-317 (1996), and as extended by section
1223(c)(I) of Public Law 109-8 (2005), further extended by
section 2(b)(1) of Public Law 112-121 (2012), and further
extended by section 1002(b)(l) of Division B of Public Law 115-
72 (2017) (28 U.S.C. 152 note), is converted to a permanent
bankruptcy judgeship under section I52(a)(2) of title 28,
United States Code.
(b) Middle District of Florida--The temporary bankruptcy
judgeship authorized for the middle district of Florida
pursuant to section 1003(a)(2) of Division B of Public Law 115-
72 (2017) (28 U.S.C. 152 note), is converted to a permanent
bankruptcy judgeship under section 152(a)(2) of title 28,
United States Code.
(c) Southern District of Florida--One (1) of the temporary
bankruptcy judgeships authorized for the Southern District of
Florida pursuant to section 1223(b)(l)(D) of Public Law 109-8
(2005), as extended by section 2(a)(l)(D) of Public Law 112-121
(2012) and further extended by section 1002(a)(l)(B) of
Division B of Public Law 115-72 (2017) (28 U.S.C. 152 note), is
converted to a permanent bankruptcy judgeship under section
152(a)(2) of title 28, United States Code.
(d) District of Maryland--One (1) of the temporary
bankruptcy judgeships authorized for the district of Maryland
pursuant to section 1223(b)(l)(F) of Public Law 109-8 (2005),
as extended by section (a)(l)(F) of Public Law 112-121 (2012)
(28 U.S.C. 152 note), is converted to a permanent bankruptcy
judgeship under section 152(a)(2) of title 28, United States
Code.
(e) Eastern District of Michigan--
(1) The temporary bankruptcy judgeship authorized for the
Eastern District of Michigan pursuant to section 1223(b)(1)(G)
of Public Law 109-8 (2005), as extended by section 2(a)(1)(G)
of Public Law 112-121 (2012) and further extended by section
1002(a)(1)(D) of Division B of Public Law 115-72 (2017) (28
U.S.C. 152 note), is converted to a permanent bankruptcy
judgeship under section 152(a)(2) of title 28, United States
Code.
(2) The temporary bankruptcy judgeship authorized for the
eastern district of Michigan pursuant to section 1003(a)(3) of
Division B of Public Law 115-72 (2017) (28 U.S.C. 152 note), is
converted to a permanent bankruptcy judgeship under section
152(a)(2) of title 28, United States Code.
(f) District of Puerto Rico--
(1) The temporary bankruptcy judgeship authorized for the
district of Puerto Rico pursuant to section 3(a)(7) of Public
Law 102-361 (1992), as amended by section 307 of title III of
Public Law 104-317 (1996), and as extended by section
1223(c)(l) of Public Law 109-8 (2005), further extended by
section 2(b)(l) of Public Law 112-121 (2012),and further
extended by section 1002(b)(1) of Division B of Public Law 115-
72 (2017) (28 U.S.C. 152 note), is converted to a permanent
bankruptcy judgeship under section 152(a)(2) of title 28,
United States Code.
(2) The temporary bankruptcy judgeship authorized for the
district of Puerto Rico pursuant to section 1223(b)(1)(P) of
Public Law 109-8 (2005), as extended by section 2(a)(l)(M) of
Public Law 112-121 (2012) and further extended by section
1002(a)(l)(G) of Division B of Public Law 115-72 (2017) (28
U.S.C. 152 note), is converted to a permanent bankruptcy
judgeship under section 152(a)(2) of title 28, United States
Code.
(g) Technical Amendments. Section 152(a)(2) of title 28,
United States Code, is amended--
(1) in the item relating to the district of Delaware, by
striking ``1'' and inserting ``8'';
(2) in the item relating to the middle district of Florida,
by striking ``8'' and inserting ``9'';
(3) in the item relating to the southern district of
Florida, by striking ``5'' and inserting ``6'';
(4) in the item relating to the district of Maryland, by
striking ``4'' and inserting ``5'';
(5) in the item relating to the eastern district of
Michigan, by striking ``4'' and inserting ``6''; and
(6) in the item relating to the district of Puerto Rico, by
striking ``2'' and inserting ``4.''
Temporary Suspension of the POWER Act Event Requirements
Description: Allow the suspension of the pro-bono legal
education event requirements under the POWER Act for public
safety reasons during the COVID-19 pandemic.
Justification: Judges and court personnel have canceled or
postponed public events, including naturalization ceremonies,
due to the COVID-19 pandemic. While public events emphasizing
the importance of pro-bono services in domestic abuses cases
are important, courts do not want to jeopardize public health
by holding such events until health officials confirm that it
is safe to do so.
Application: The POWER Act of 2018 requires courts to hold
annual public events highlighting the importance of pro bono
representation in domestic abuse cases. An annual report is due
to Congress before the end of the calendar year. This proposal
would allow the suspension of the requirement to hold public
events under the POWER Act during the COVID-19 pandemic if the
chief judge of a district makes a finding that to do so would
jeopardize public health and safety.
Proposed Legislative Language:
SEC._ TEMPORARY SUSPENSION OF THE POWER ACT EVENT REQUIREMENTS
Section 3 of the POWER Act, Public Law 115-237, is amended
to add section (d) as follows:
(d) Protecting Public Health and Safety. Notwithstanding
this section, the Chief Judge, or his or her designee, for each
Judicial District is not required to conduct any public event
promoting pro bono legal services during fiscal year 2020 if
the chief judge notifies the Director of the Administrative
Office of the United States Courts by September 30 that
conducting a public event would jeopardize public health or
safety or violate State or local orders restricting public
gatherings. A Chief Judge who provides notice pursuant to this
provision is not required to submit a report under section 4.
Add a Federal Defender as an Ex-officio, Non-voting Member of
the U.S. Sentencing Commission
Description: Add a Federal Defender as an ex officio,
nonvoting member of the U.S. Sentencing Commission.
Justification: During the pandemic, and in the aftermath of
the pandemic, there will be a need to address what the ``new
normal'' looks like in terms of appropriate sentencing policies
and practices for the Federal courts and the Sentencing
Commission will serve a unique role in addressing these issues.
One of the Commission's principal purposes is to establish
sentencing policies and practices for the Federal courts. Each
year, the Commission reviews and refines the guidelines in
light of congressional action, decisions from Courts of
Appeals, sentencing-related research, and input from the
criminal justice community. Given the legislative changes that
have already taken place in response to the pandemic, and the
likelihood of even more legislative changes, there will be a
need to reevaluate existing sentencing policies and practices
for the Federal courts.
Federal defenders are working on the front lines of the
pandemic within the Federal court system and have unique
experiences and perspectives to contribute to any potential
reevaluation of existing sentencing policies and practices--
including the use of conditions of confinement as a factor in
determining a sentence--especially given the adversary nature
of our criminal justice system. The need for a defender voice
is great, especially given that the Attorney General and U.S.
Parole Commission have existing ex-officio, nonvoting members.
Adding a Defender as an ex-officio, nonvoting member will help
to make policy discussions more robust and assure that the any
policy changes following the COVID-19 pandemic are truly
representative of all the stakeholders within the criminal
justice system.
Application: Support the existing JCUS policy of adding a
Defender as an ex-officio, nonvoting member of the U.S.
Sentencing Commission.
Proposed Legislative Language:
SEC._ FEDERAL DEFENDER REPRESENTATNE AS A NON-VOTING MEMBER OF THE U.S.
SENTENCING COMMISSION.
(a) Subsection (a) of section 991 of title 28, United
States Code, is amended by striking ``one nonvoting member'' at
the end of the first sentence and inserting ``two nonvoting
Members.'', and by inserting before the last sentence the
following new sentence: ``A Federal defender representative
designated by the Judicial Conference of the United States
shall be a nonvoting member of the Commission.''
(b) The final sentence of section 235(b)(5) of title II,
Public Law No. 98-473 as amended, is amended by striking the
phrase ``nine Members, including two ex-officio, nonvoting
Members'' and inserting ``ten Members, including three
nonvoting Members.''
Mr. Johnson of Georgia. Thank you, Judge Campbell.
Chief Justice McCormack, you may begin.
TESTIMONY OF BRIDGET M. McCORMACK
Judge McCormack. Thank you for the invitation to testify
and for the opportunity to talk about how Michigan's judiciary
has responded to the COVID-19 crisis.
Let me first put our workload in context. Michigan has 242
trial courts that adjudicate almost 3 million cases each year.
Our courthouses are high density places, and also, unlike
restaurants and salons, they are not places people generally
have a choice about whether to visit.
We had to figure out how to maintain access to justice and
also keep the public and our court employees safe.
Public trust is the only currency courts have. The rule of
law is, after all, just a set of ideas that are only as good as
our collective faith in them. With a great majority of
litigants unrepresented, we build that trust in our courtrooms
by what we do and how we do it.
In three months, we have changed more than in the past
three decades and now, seeing the benefits of innovation, we
have a unique opportunity to create long-term and much-needed
change for our justice system.
This pandemic was not the disruption that any of us wanted.
It might be the disruption we needed to transform our judiciary
into a more accessible, transparent, efficient, and customer-
friendly branch of government.
We had a bit of a head start in Michigan. Before the
pandemic, our administrative team at the Supreme Court had
invested in outfitting every courtroom in the State with a
video conferencing system and every judge with a Zoom license.
In mid-March, on a dime our team moved our entire workforce
to remote work. From home offices, kitchen tables, and basement
rec rooms, our management analysts and information technology
teams have been working overtime to provide policy advice,
practical guidelines, and technical support to transition a
statewide judiciary to virtual courtrooms.
Michigan's court system is not like the Federal Judiciary
with one funding source and one case management system. Our
nonunified system of 242 courts has 160 different funding
units, nearly two dozen case management systems, and 560
different elected judges.
Despite this byzantine system, since April 1st, judges have
held well over 50,000 Zoom hearings and are approaching 350,000
hours of online proceedings. To maintain public access, these
hearings are live streamed to YouTube.
For easy public access to them, we have built a virtual
courtroom directory, which is a clickable map that allows
people to watch any judge in the state.
This directory has been used more than 25,000 times in the
past month alone. One hearing in particular, which had high
public interest, had over 8,000 viewers at one point.
We also pioneered an online dispute resolution platform
that allows residents to resolve disputes with or without a
mediator on a phone, tablet, or laptop instead of going to
court.
Our free My Resolve service will soon be available to every
resident in the state. We also are pilot testing text messages
to notify the public of court events and payments.
Dentists do it. Why not judges?
Our online legal resource center, Michigan Legal Help, is
helping 10,000 visitors each day in addition to their regular
toolkits. They have more than 30 COVID-19 related resources
with the most popular providing information regarding
unemployment insurance.
We have issued a series of emergency orders to guide and
support the trial court's transformation in response to the
crisis, removing barriers to remote proceedings and innovating
new processes.
For one example, we transformed how courts will handle the
eviction backlog proceedings once we expect once moratoria ends
at the end of this month.
Our order protects public health, rationalizes case
processing, and connects litigants to the resources available
to resolve these cases, including $60 million from the CARES
Act. Thank you very much.
Virtual courtrooms are making our judiciary more accessible
to the public. Litigants can appear in courts--excuse me,
lawyers can appear in courts in faraway parts of the State all
in the same morning.
Litigants can appear in court without having to miss work.
I talked to a judge recently who had a criminal defendant take
a plea in a misdemeanor in a break room from his job in a
different state. He was grateful that he did not have to miss a
day of work and grateful to be able to take responsibility and
get on with his life.
Litigants who have disabilities don't have to worry about
figuring out how to make it to court. Transportation, parking,
childcare, and job responsibilities are not barriers to remote
proceeding participation. It turns out Zoom is less
intimidating for parties who appear without lawyers. At least
this is what we have learned so far.
There is something about the equalizing nature of all of
the Zoom boxes being the same size that makes people feel more
heard and more respected. Maybe it is just less intimidating.
Looking to the future, we cannot retool old ways to get
people back into courthouses where access to justice is an
ongoing problem.
Instead, we must focus our resources on bringing justice to
people where they live and where they work. We must rebuild
what we do from the ground up and create a 21st century justice
system that is accessible, effective, transparent, efficient,
and fair.
By embracing innovation, collaboration, agility, and user-
centric design, we will do just that.
I look forward to answering any questions that you have and
thank you again for the opportunity to address you.
[The statement of Judge McCormack follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Johnson of Georgia. Thank you, Chief Justice McCormack.
Next, Judge Fogel. You may begin.
TESTIMONY OF JEREMY FOGEL
Judge Fogel. Thank you, Mr. Chair.
Mr. Chair, Ranking Member Roby, and Members of the
subcommittee, I am honored to be here with you, and I am going
to summarize my statement in three respects.
This crisis that we are all dealing with has been
devastating to so many people in so many ways, and I think it
is also important to recognize that it presents an opportunity.
We have been forced--the judiciary, along with many other
institutions, has been forced to do things differently. It has
been forced to do things that it would not have contemplated
had this crisis not occurred.
The result of it having done it is that there is an
enormous amount of data. The experience that the Federal courts
have already had, the experience that the State courts have
had, all of that has given us information about how these
processes actually work, what is beneficial about them, what
isn't beneficial about them, where the technical glitches are,
and I think it would be a shame if we did not take advantage of
that.
One of the things I am going to suggest that the
Subcommittee consider is formalizing the idea of a study of
this data so that we can look at it in a thoughtful and
critical way.
Judge Campbell is an old friend and I have immense respect
for the processes of the--of the Rules Committee. So I think it
normal times it produces very well-considered and thoughtful
work that avoids unintended consequences.
It also reflects a certain small C conservative nature that
the Federal Judiciary has, and we are faced with a situation
now where that typical approach is not quite as feasible as it
normally is.
So, we have to figure out a way to proceed with care and
thoughtfulness and deliberation but at the same time recognize
that we are working with a very much shortened time frame
because of the conditions that we are in and the backlog that
is continuing to build up.
I think I want to pick up on a point that Ranking Member
Roby made at the beginning. There are several different
dimensions of this problem. I describe them in a meeting we had
yesterday.
There are vectors. There are forces that are at work, and
one of them, certainly, is access. It is the idea that the
public has a right to see what is going on and that people have
to have the ability to get into court. So, the use of virtual
technologies to increase access or provide access is an
absolutely critical value, a critical principle.
Equally important is efficiency. We have to get the work
done, and Chair Johnson referred to that in his opening remarks
that the work has to be done in a timely way so that people
don't wait forever for justice that can't wait.
So, the value of efficiency is very important.
Finally, and I think this goes to Ranking Member Roby's
point, there is this whole idea of the quality, the value, the
core values of the judiciary.
What really matters people need to be heard. People need to
be seen. People need to be respected. There are socioeconomic
differences in terms of who can get virtual access to what
kinds of proceedings and it is something that the courts need
to think about.
How do you do this in a rural area? How do you do this in a
place where people don't have internet access or it is not
readily available to them? What kinds of proceedings just
really aren't that amenable to virtual justice?
You are sentencing someone to prison for 20 years. Do you
really want to do it that way? How do you do a constitutional
jury trial in a criminal case?
All of this, to me, is imperative that we study these
issues. We think about them with care and we not waste the
opportunity that the current crisis has presented to us.
So, I think if I were to have a wish list, one would be
that the Subcommittee recommend and authorize that type of
study is a far-reaching study of the many aspects of this
problem, and secondly, that it do--it needs to, and this echoes
something Judge Campbell said, provide the legislative
authorization to continue experimentation, to suspend rules
that need to be suspended or give the judiciary these leeway to
continue the experimenting that it is doing.
I agree with Chief Justice McCormack that I don't think we
are ever going back to where we were before. I think that is--
maybe some people would like that to happen.
I think that is unlikely to happen, and we have to
anticipate a new normal and we have to build that new normal
with the same kind of care and deliberation that we built the
old normal.
Thank you very much. It has been an honor to be with you,
and I look forward to answering whatever questions you have of
me.
[The statement of Judge Fogel follows:]
EXPANDING ELECTRONIC ACCESS TO THE FEDERAL COURTS: THE
UNEXPECTED OPPORTUNITY
PRESENTED BY THE COVID-19 PANDEMIC
Hon. Jeremy Fogel (ret.)
Executive Director, Berkeley Judicial Institute,
Berkeley Law School
Chair Johnson and Ranking Member Roby:
My name is Jeremy Fogel. Since September 2018, I have
served as the Executive Director of the Berkeley Judicial
Institute (BJI), a center at Berkeley Law School whose mission
is to build bridges between judges and academics and to promote
an ethical, resilient and independent judiciary. Before that, I
was a Judge of the California State and Federal trial courts
for thirty-seven years. From 2011 to 2018, I was the Director
of the Federal Judicial Center (FJC) here in Washington. The
FJC is responsible for both professional education and applied
research on behalf of the Federal Judiciary. Its governing
board is chaired by the Chief Justice of the United States.
The COVID-19 pandemic has had a dramatic disruptive effect
on our Federal and State Judicial systems. Courthouses have
been closed; legal proceedings have been conducted with minimal
staffing, held remotely, or postponed for months; and court
personnel have scrambled to work effectively from home.
The Federal courts, which long have been resistant to
electronic access and virtual proceedings, have been forced to
implement emergency measures to facilitate them. The Federal
Judiciary deserves much credit for its ongoing efforts to deal
with this unprecedented situation. It has recognized the
severity of the challenge and has faced it with its customary
competence and care. It would be disappointing if the measures
it has taken simply were abandoned wholesale when the current
emergency has passed. While it goes without saying that their
primary concern must the health and safety of their users and
personnel, the courts also have an unexpected and unprecedented
opportunity to study the costs and benefits of new ways of
doing their work.
History teaches us that a crisis often can be the catalyst
of innovations that endure long after the crisis itself has
ended. The emergency programs that were implemented to mitigate
the worst effects of the Great Depression permanently
transformed our understanding of the role of government, and in
so doing they left a legacy ranging from rural electrification
to economic guardrails to Social Security. It is doubtful that
any of these changes would have occurred, at least when and how
they did, had the disruption of our nation's economy been less
severe.
Even in this politically polarized age, our Federal courts
are widely respected for their independence, the
professionalism of their judges and staff, and the seriousness
with which they approach their work. Social and partisan
controversies aside, in my experience the great majority of
Federal Judges do their best to decide the great majority of
cases on the basis of competent evidence and applicable legal
principles. This is not true in much of the rest of the world.
The Federal courts also are a ``small c'' conservative
institution. The same seriousness that inspires Federal Judges
to produce high-quality work also leads them to be reflexively
cautious about structural change. Always concerned (and
properly so) about the unintended consequences of different
ways of doing things, the Federal Judiciary tends to consider
new ideas infrequently, at great length and in granular detail.
Even the pilot projects it occasionally undertakes to study
potential innovations tend to be carefully limited in scope and
to produce modest, incremental results.
Such caution can have great value in normal times, but a
disruption on the scale of the COVID-19 pandemic changes
everything. The public access to court proceedings guaranteed
by the Constitution has been impossible, at least in a physical
sense, in the context of shelter-in-place orders and the
potential risks to court users and staff. Jury trials and in-
person oral arguments have been impracticable, movement of in-
custody criminal defendants is fraught with logistical
problems, and public visits to courtrooms and court clerk's
offices have not been a realistic option. Even the United
States Supreme Court, which long has refused to permit any
real-time transmission of its proceedings, now has conducted
telephonic hearings and has provided a live feed of those
hearings to the news media and thus to the public. Most would
agree that the importance of the remaining cases on the Court's
docket made such a step necessary. While some of the dynamics
of oral argument have changed, the Court's forced experiment
has not had the negative impact on the dignity of the Court's
proceedings that some had feared.
On March 31, the Administrative Office of the United States
Courts (AO) issued detailed guidance enabling circuit, district
and bankruptcy courts to use video and audio technology to
provide court users and the public with remote access in non-
criminal matters. On April 2, the AO published additional
guidance permitting electronic access to most criminal
proceedings notwithstanding Federal Rule of Criminal Procedure
53, which prohibits such access. Both directives stressed that
these departures from normal practice are intended to be
temporary and will terminate once the current national
emergency has passed. This limitation was understandable, as
only limited authority to bypass existing rules was granted by
Congress under the CARES Act.
Unfortunately, while courts and other services have begun a
slow process of reopening in some parts of the country, it
likely will be many more months before full court operations
can resume safely nationwide. In the meantime, the expanded
implementation of electronic access to court operations already
has produced--and will continue to produce--a bounty of
illuminating data concerning each of the principal areas of
concern that have been cited in the past to support judicial
reservations about greater use of virtual proceedings.
One of those areas of concern is privacy. Understandably,
courts are reluctant to see images of witnesses, parties,
lawyers, jurors, and judges appearing widely on the Internet or
on social media. The exigencies of the present situation have
required courts to think about practical ways of balancing
these privacy interests with the transparency provided by
virtual public access. The AO's April 2 guidance for criminal
matters touched on this issue by making clear that while
certain proceedings may be seen or heard over dedicated
electronic media, full Internet streaming is not authorized.
Interestingly, at least some of the virtual platforms with
which courts have experimented since then actually can be
configured to ensure more privacy than is possible in many in-
person proceedings.
A related area of concern is security. Even in normal
times, when physical public access to courthouses essentially
is unrestricted, courts still routinely use metal detectors to
screen visitors, and the identity of certain witnesses--usually
cooperating witnesses in criminal cases--can be shielded from
public disclosure after appropriate findings by a judge. The
experience of the current emergency already has helped courts
improve their ability to secure their electronic portals and to
prevent harmful or unauthorized access to sensitive proceedings
or information.
Public access to the courts is not the only Constitutional
right implicated by the greater use of virtual technologies. At
the outset of the pandemic, California's State courts struggled
with the question of whether a defendant may be arraigned
remotely on a criminal charge without waiving his or her right
to be personally present; a majority of the state's Judicial
Council concluded that even under the present exigent
circumstances, a defendant may insist on an in-person
proceeding. Although no published decision has addressed the
issue, it is extremely doubtful that a remotely-conducted
criminal jury trial would satisfy the Constitution's right of
confrontation, at least without the informed consent of
everyone involved. That said, the current situation has given
the Federal courts an opportunity to think broadly and
concretely about the Constitutional requirements and
limitations relevant to remote proceedings.
Federal judges also worry about impact of virtual court
operations on the nature and quality of their own day-to-day
work. They have expressed concern that lawyers who appear
remotely will be less candid than they would be in person, and
that judges' ability to assess parties' and lawyers' non-verbal
cues such as facial expressions and body language will be
diminished. Perhaps influenced by their experience with other
proceedings that occur away from the courthouse, such as
depositions in civil cases, they fear that lawyers will have
less incentive to cooperate and Act professionally when not in
the immediate presence of the judge and each other. For
appellate judges, who sit on panels with other judges, there is
trepidation about the impact of virtual hearings on
collaboration and collegiality. The restrictions resulting from
the COVID-19 pandemic have created a situation in which the
validity of these apprehensions is being tested. So far, while
trial court judges report that some proceedings are more
amenable to virtual platforms than others, most appellate
judges seem reasonably comfortable with working and
collaborating remotely. Some have suggested that continued use
of virtual hearings would make them more efficient by reducing
travel between places of holding court.
The importance of the data that has been and will continue
to be generated with respect to these questions is not
academic. For at least a decade, the Federal courts have
recognized that the costs associated with civil litigation are
unacceptably high and have skewed access to justice in favor of
well-funded parties. Thoughtfully designed and carefully
implemented procedures for virtual proceedings (most likely
other than jury trials) could reduce that cost substantially by
limiting the time lawyers and parties spend attending and
traveling to and from in-person proceedings or waiting for a
judge to get through a crowded docket. The experience of the
State courts suggests strongly that parties in cases with
smaller amounts of money at issue actually may prefer having
the ability to appear virtually. On the criminal side,
recognizing that many defendants will choose to waive their
right to be physically present at hearings that affect neither
their custodial status nor the disposition of their case,
virtual proceedings could result in substantial savings in
inmate transportation costs and a reduced burden on the U.S.
Marshals and other law enforcement officers who are responsible
for the security of in-person hearings.
There also is the overarching issue of public trust and
confidence in the courts. While the Federal courts consistently
do better than the other branches of government in public
opinion polls, a closer look at the polling data shows that
confidence in the courts has declined in recent years and that
relatively few people outside the legal profession understand
what judges actually do. There is a widespread (and mistaken)
perception that judges simply decide every case on the basis of
their political inclinations. There also are significant
differences in the level of confidence among different socio-
economic groups.
An obvious antidote to such negativity is greater
transparency. As noted earlier, the Federal courts are a
strong, value-centered institution with a good story to tell.
Virtual technologies have potential not only for court users
but also in the critically important role of public education.
While it certainly may make more sense to put some types of
proceedings on line than others, treating courthouse walls as
an outer boundary for obtaining real-time information is
increasingly hard to justify in this digital age.
Finally, despite this generally positive view of the
potential benefits of greater use of virtual proceedings in the
Federal courts, I would be remiss if I did not acknowledge the
fundamental importance of procedural justice. It is important
that litigants not only be heard but also that to the extent
possible they feel heard, that they were listened to well and
treated with respect. As we are learning from the experience of
the State courts, litigants in some types of proceedings
actually have a more positive experience with virtual
proceedings than they have had previously with in-person court
appearances. There also are indications that a person's
physical presence at some types of proceedings--for example,
bail and detention hearings--clearly works to their benefit.
Some litigants lack the resources to take full dvantage of
virtual platforms. There are some matters, such as sentencing
hearings in criminal cases, in which, quite apart from
Constitutional considerations, the experience of in-person
communication adds an important sense of immediacy and gravity
to the event.
The leadership of the Federal courts should take full
advantage of the opportunity that its response to the COVID-19
pandemic has presented. It should conduct a thorough review of
its experience over the course of the present emergency and Act
boldly, creatively and thoughtfully on the basis of what it
learns. I encourage your Subcommittee to explore legislation
that will encourage and facilitate that effort, including
authorization of relevant research and extension of the courts'
authority to conduct and provide public access to virtual
proceedings.
Thank you very much for inviting me to be here today.
Mr. Johnson of Georgia. Thank you.
Last but not least, Ms. Wasser. Please begin.
TESTIMONY OF MELISSA WASSER
Ms. Wasser. Thank you, Chair.
Thank you, Chair Johnson, Ranking Member Roby, and Members
of the Subcommittee.
Good morning. My name is Melissa Wasser and I am a policy
analyst with the Reporters Committee for Freedom of the Press,
a nonprofit organization that has been defending the First
amendment rights of journalists since 1970.
Again, thank you for giving me the opportunity to testify
here today and thank you for your leadership on increasing
court access throughout the Federal Judiciary.
Today in my statement I will recommend that Congress
provide support and guidance to broaden remote access, both in
audio and video, to Federal court proceedings and ensure that
these advances in transparency survive both in future crises
and become a fixture of public access to judicial proceedings
generally.
The Reporters Committee has long championed the public's
constitutional and common law rights of access to judicial
records and proceedings, and we have been monitoring the
response of Federal courts around the country to the COVID-19
pandemic.
As mentioned by the other witnesses, this pandemic has
changed the daily operations of Federal courts across the
country as they strive to protect the health and safety of
court employees, litigants, attorneys, Members of the
Judiciary, and the public.
I would note that press and public access to judicial
proceedings and court records is no less important during times
of crisis.
In response to the ongoing pandemic, many judicial
proceedings typically held in open court have been held
remotely. To facilitate public access to these proceedings, the
Judicial Conference temporarily approved the use of
teleconferencing to provide the press and public audio access
to civil proceedings.
Courts and judges across the country have relied on this
guidance to provide remote access for the press and public but
have implemented the policy in different ways.
The United States Supreme Court also approved public
access, hearing 10 oral arguments by telephone in May 2020 for
the first time in the court's history.
The public has demonstrated an abiding interest in these
proceedings. Within a few hours of the Supreme Court hearing
oral argument in two cases involving the President's tax
returns on May 12th, SCOTUS Blog reported that approximately
500,000 people tuned into the live stream oral arguments.
As of yesterday, an estimated 1.9 million people have
listened to at least one of the Supreme Court's recorded oral
arguments online, compared to the 50 Members of the public who
normally make it into the courtroom.
Similarly, many of the videos posted by the U.S. Court of
Appeals for the Ninth Circuit, which regularly live stream
video of its oral arguments even before the pandemic, have
hundreds of viewers, enough to fill several courtrooms.
The Reporters Committee urges Congress to consider
legislation that would permit courts to permanently remove
barriers for the broadcast or streaming of proceedings in the
Federal Judiciary.
Congress should enact legislation to ensure that all
Federal trial and Appellate courts have sufficient funding to
continue providing live audio and video access to all public
proceedings beyond the pandemic, and that courts are able to
enact revisions to any contrary policy including the Judicial
Conference's cameras in the courtroom policy.
This would include passing H.R. 6017, the 21st Century
Courts Act, which would require live audio and an online
archive of Supreme Court oral arguments and opinion readings
along with all Federal Appellate proceedings; H.R. 5645, the
Eyes on the Courts Act of 2020, requiring cameras in all
Supreme Court and Federal Appellate court proceedings; and last
but not least, H.R. 6642, the Court Access Amid the Pandemic
Act, which would require any oral arguments in Circuit courts
and District courts be made public in real time via video
teleconferencing and telephone conferencing, and be permanently
archived on the internet.
While Supreme Court justices have expressed concern in the
past that live audio and video could potentially hurt the
sanctity and tradition of the court and that the Supreme Court
is unique and need not follow trends with respect to public
access in the lower courts, the recent demand for streaming of
the court's oral arguments last month clearly shows that the
American public wants to know about its tremendously important
work.
According to recently released polls, 83 percent of
Americans supported regular live stream audio at the Supreme
Court with nearly 70 percent calling for all courts to allow
cameras in the courtroom.
Additionally, public notice of when remote proceedings will
take place and how Members of the public can observe them is
crucial. We have noticed that courts have been inconsistent in
this respect during the COVID-19 pandemic.
Uniformity in the matter in which courts provide such
public notice would help remove an obstacle for Members of the
press and public exercising their rights of access.
So, in sum, the Reporters Committee believes that increased
public access to the nation's Federal courts including the
Supreme Court is, on balance, an important step to promote
accountability, transparency, efficiency, and an informed
electorate.
I would like to thank the Subcommittee for including me in
this very important conversation surrounding court access and I
look forward to any--answering any questions that you may have.
[The statement of Ms. Wasser follows:]
Testimony of Melissa Wasser, Policy Analyst, The Reporters Committee
for Freedom of the Press
I am Melissa Wasser, a policy analyst at the Reporters
Committee for Freedom of the Press (the ``Reporters
Committee''), a nonprofit organization that has been defending
the First amendment rights of journalists since 1970. Thank you
for giving me the opportunity to testify. My CV is attached. I
have a brief statement for the record, which I can supplement
after the hearing if the Committee seeks additional
information.
I. FEDERAL COURTS DURING THE COVID-19 PANDEMIC
The Reporters Committee has long championed the public's
constitutional and common law rights of access to Judicial
records and proceedings, and has been monitoring the response
of State and Federal courts around the country to the current
public health crisis. \1\ The pandemic has changed the daily
operations of Federal courts across the country as they strive
to protect the health and safety of court employees, litigants,
attorneys, Members of the Judiciary, and the public. Like all
public institutions, the Federal Judiciary took proactive steps
to fight the spread of COVID-19, including limiting public
access to court proceedings.
---------------------------------------------------------------------------
\1\FP State and Federal court responses to COVID-19 from the
Reporters Committee for freedom of the press (www.rcfp.org/covidl9),
Reporters Committee for Freedom of the Press, http://bit1.y/3dNpQSJO
(collecting standing orders from all Federal courts (last visited June
23, 2020).
---------------------------------------------------------------------------
In doing so, Federal courts also took laudable steps to
facilitate remote press and public access to judicial
proceedings. Press and public access to Judicial Proceedings
and Court records is no less important during times of crisis.
Indeed, at such times, visibility into the operations of the
government, including the judiciary, is all the more crucial.
The Reporters Committee urges the Federal Judiciary to
continue to ensure that the public's ability to meaningfully
observe Judicial Proceedings is not curtailed due to
resbictions on physical access to courthouses both now and in
future times of crisis. The Reporters Committee further urges
courts and Congress to preserve these advances toward greater
transparency once the current crisis is over.
While our advocacy extends to both civil and criminal
proceedings, our comments below focus on civil matters given
the subject of this hearing.
By attending judicial proceedings, the preplays a key role
in ensuring ``an informed and enlightened public opinion.'' \2\
The public relies on the press to observe at first hand the
operations of . . . government'' and report on them. \3\ An
informed public is an essential component of a healthy
democracy. \4\
---------------------------------------------------------------------------
\2\ Grosjean v. Am. Press Co., 297 U.S. 233, 247 (1936).
\3\ See Cox Broad. Corp. v. Cohn, 420 U.S. 469, 491 (1975).
\4\ See Minneapolis Star & Tribune Co. v. Minn. Comm'r of Revenue,
460 U.S. 575, 585 (1983).
---------------------------------------------------------------------------
In response to the ongoing COVID-19 pandemic, many judicial
proceedings typically held in open court have been held
remotely--either telephonically or by video conference. To
facilitate public access to such proceedings, the Judicial
Conference temporarily approved the use of teleconferencing to
provide the press and public audio access to civil proceedings.
\5\
---------------------------------------------------------------------------
\5\ See Judiciary Authorizes Video/Audio Access During COVID-19
Pandemic, United States Courts (Mar. 31, 2020), http://penna.cc/7HAG-
L2FB; Judiciary Provides Public, Media Access to Electronic Court
Proceedings, United States Courts (Apr. 3, 2020), https://pem1a.cc/
VM68-R6N7.
---------------------------------------------------------------------------
Courts and judges across the country relied on the Judicial
Conference's guidance to provide remote access for the press
and public but have implemented the policy in different ways.
The United States Supreme Court also approved public access
issuing a pres release on April 13 stating that it would bear
10 oral argmnents by telephone in May 2020, for the first time
in the court's history. It explained that ``[t]he Court
anticipates providing a live audio feed of these arguments to
news media'' \6\ and media feeds were made available to the
public.
---------------------------------------------------------------------------
\6\ See, e.g., Press Release, Supreme Court of the United States,
May Teleconference Oral Arguments (Apr. 13, 2020), http://perma.cc/
CB72-ESH9.
---------------------------------------------------------------------------
II. REMOTE ACCESS DURING COVID-19 HAS DEMONSTRATED THE INTENSE
PUBLIC INTEREST IN THE OPERATIONS OF THE FEDERAL COURTS
GENERALLY
As noted, courts around the country have provided virtual
access to proceedings during the COVID-19 pandemic in different
ways.
Several judges have affirmatively provided public access to
proceedings in which the public interest is strong. For
example, Judge Preska of the U.S. District court for the
Southern District of New York directed the parties in a civil
matter to file the dial-in information for a telephonic hearing
on the public docket. \7\ Similarly, Judge Boasberg of the U.S.
District court for the District of Columbia granted requests by
reporters to listen to a telephonic hearing related to a
coronavirus lawsuit and provided members of the news media with
dial-in access. \8\
---------------------------------------------------------------------------
\7\ See Giuffre v. Maxwell, 1:15-cv-7433-LAP, ECF No. 1039
(S.D.N.Y. Mar. 30, 2020); ECF No. 1041 (S.D.N.Y. Mar. 30, 2020 listing
dial-in information).
\8\ See Ann E. Marimow, Federal Courts Shuttered by Coronavirus Can
Hold Hearings by Video and Teleconference in Criminal Cases, Wash. Post
(Mar. 31, 2020, 5:59 p.m.), https://wapo.st/2Xlrg6w.
---------------------------------------------------------------------------
A number of courts have taken a universal approach to
providing remote access for the news media and public. As Chief
Judge Howell of the U.S. District court for the District of
Columbia stated, her court ``is committed to providing the
public and the media with access to public court proceedings,
including those held by video or teleconference.'' \9\ Many
other District courts have made similar commitments,
implementing policies requiring that all remote proceedings be
made available to the public. \10\
---------------------------------------------------------------------------
\9\ See id.
\10\ See, e.g., MGO 20-13 Suspension of Court Proceedings Effective
May 1, 2020, U.S. District court District of Alaska (Apr. 21, 2020),
https://perma.cc/YM2L-NO98 (providing that a toll-free conference line
will be publicly available for civil and criminal proceedings); In re:
Public and Media Access to Judicial Proceedings During COVID-19
Pandemic, U.S. District court, District of Columbia (Apr. 8, 2020),
https://penna.cc/F99Q-5RTA (providing that video and audio access to
judicial proceedings will be available for the public); Notice
Regarding Public Access to Telephonic Hearings During COVID-19
Outbreak, U.S. District court, Eastern District of Wisconsin, https://
peerma.cc/98CR-TN7M (last visited June 23, 2020).
---------------------------------------------------------------------------
The public has demonstrated an abiding interest in these
proceedings. For instance, SCOTUSblog reported that within a
few hours of the argument session, approximately 500,000 people
tuned into livestreamed oral arguments before the Supreme Court
on May 12, 2020, in Trump v. Mazars USA LLP, No. 19-715, and
Trump v. Vance, No. 19-635. \11\ As of June 23, 2020, an
estimated 1.9 million people have listened to at least one of
the Supreme Court's recorded oral arguments online, compared to
the usual 50 Members of the public who are able to physically
attend an oral argument in person. \12\
---------------------------------------------------------------------------
\11\ Amy Howe, Courtroom Access: Where Do We Go From Here?,
SCOTUSblog (May 13, 2020, 12:37 p.m.), https://pema.cc/THX9F8XJ.
\12\ SCOTUS Oral Argument Numbers, Reporters Committee for Freedom
of the Press, https://bit.ly/2TUl5m (last visited June 23, 2020).
---------------------------------------------------------------------------
Similarly, many of the videos posted by the U.S. Court of
Appeals for the Ninth Circuit, which regularly livestreamed
video of its oral arguments even before the pandemic, have
hundreds of viewers, enough to fill several courtrooms. \13\
Guidance and support from Congress would help broaden remote
access to proceedings at all levels of the Federal Judiciary,
and ensure that these advances in transparency survive both in
future crises and become a fixture of public access to judicial
proceedings generally.
---------------------------------------------------------------------------
\13\ See United States Court of Appeals for the Ninth Circuit,
YouTube, https://bit.ly/2TgQf2Y (last visited May 17, 2020).
---------------------------------------------------------------------------
III. RECOMMENDATIONS AND BEST PRACTICES
A. Provide Support and Guidance To Allow Courts at All Levels
To Broadcast or Stream Live Proceedings in Future Crises and
During Normal Operation
The Reporters Committee urges Congress to consider
legislation that would permit the courts to permanently remove
barriers for the broadcast or streaming of proceedings in the
Federal Judiciary. Congress should enact legislation to ensure
that all Federal trial and Appellate courts have sufficient
funding to continue providing live audio and video access to
all public proceedings and that courts are able to enact
revisions to any contrary policy, including the Judicial
Conference's ``Cameras in the Courtroom'' policy. \14\
---------------------------------------------------------------------------
\14\ See History of Cameras in Courts, United States Courts,
https://perma.cc/HM4A-35F9 (last visited June 23, 2020). In some cases,
District courts incorporate Judicial Conference policies into local
rules or general orders. See General Order 58, United States District
court, Northern District of California (Sept. 1.5, 2015), http://
perma.cc/ET6L-JWRV. Even if they are not directlly incorporated, the
Judicial Conference' policy conclusions are at the ve1y least entitled
to respectful consideration.'' See Hollingsworth v. Peny, 558 U.S. 183,
193 (2010) (citation omitted).
---------------------------------------------------------------------------
These policies have served as a barrier to public access in
the past. For instance, at least one Federal appellate court
gave the Judicial Conference's policy against broadcasting
civil proceedings ``substantial weight'' in holding that local
rules did not permit a Federal District court judge to allow
broadcasting of proceedings in a specific civil case. \15\
---------------------------------------------------------------------------
\15\ See In re Sony BMG Music Entm't, 564 F.3d l, 6-7 (1st Cir.
2009) (noting that Judicial Conference policies are ``not lightly to be
discounted, disregarded, or dismissed'').
---------------------------------------------------------------------------
Congress could provide guidance and support for courts to
allow the broadcast or streaming of judicial proceedings. That
guidance and support would empower the Judicial Conference to
remove this hurdle, allowing District courts to quickly adapt
to any future emergency necessitating remote proceedings, to
experiment with finding the best technological means for
broadcasting or streaming proceedings, and to simultaneously
realize many of the benefits to public access that have been
highlighted by the Judicial Conference's recent temporary
approval in light of COVID-19.
The Judicial Conference implemented the ``Cameras in
Courtroom'' policy in 2016, after the conclusion of a four-year
pilot program that introduced cameras into 14 District
courtrooms from 2011-2015. \16\ The Federal Judicial Center's
report on that pilot program found that more than 70 percent of
participating judges and attorneys favored recording court
proceedings. \17\ By the end of the pilot program, more judges
were in support of cameras in the courtroom than against, \18\
and most judges and attorneys said they would be in favor of
permitting video recordings of civil proceedings. \19\
---------------------------------------------------------------------------
\16\ See History of Cameras in Courts, United States Courts,
https://perma.cc/HM4A-35F9 (last visited June 23, 2020).
\17\ See Molly Treadway Johnson et al., Fed. Judicial Ctr., Video
Recording Courtroom Proceedings in United States District courts:
Report on a Pilot Project 33-34, 55 (2015).
\18\ Id. at 33-34.
\19\ Id. at 36, 44-45.
---------------------------------------------------------------------------
Further, many judges and attorneys who participated in the
pilot program also expressed surprise that the cameras were as
unobtrusive as they were. \20\ Now that many more judges have
conducted remote and recorded proceedings as a result of the
COVID-19 pandemic, Congress should ensure that additional
funding is available for courtroom technology, specifically for
live video and audio access of court proceedings at the
Appellate and trial level.
---------------------------------------------------------------------------
\20\ Id. at 40-41.
---------------------------------------------------------------------------
Moreover, allowing courts to permanently broadcast and
stream judicial proceedings will prepare courts to easily
transition to operating remotely in future national crises.
Before the pandemic several Federal appellate courts regularly
provided live audio or video of oral arguments and archived
those recordings. \21\ In response to the COVID-19 pandemic,
more Federal Appellate courts, including the Supreme Court have
turned to live audio of oral arguments. \22\
---------------------------------------------------------------------------
\21\ See News Release, United States Court of Appeals for the
District of Columbia Circuit, Court to Provide Live Audio Streaming of
All Arguments at Start of 2018-2019 Term (May 23, 20I8), https://
perma.cc/Y9W9-G65P; Audio and Video, United States Court of Appeals for
the Ninth Circuit, https://www.ca9.uscorts.gov/media/ (last visited
June 23, 2020).
\22\ See, e.g., Press Release, Supreme Court of the United States,
May Teleconference Oral Arguments (Apr.13, 2020), https://perma.cc/
CB72-ESH9: Advisory, United States Court of Appeals for the Federal
Circuit, Availability of Live Audio Access to April 2020 Court Session
(Apr. 1, 2020), https://perma.cc/7F8J-N8JG.
---------------------------------------------------------------------------
For arguments in which counsel for the parties or the court
themselves participated remotely during the COVID-19 pandemic,
those appellate courts that regularly livestreamed their oral
arguments--such as the Ninth and District of Columbia
Circuits--were able to quickly adapt to remote, livestreamed
proceedings. A permanent policy permitting the broadcast or
streaming of proceedings at the District court level would be
similarly beneficial.
B. Ensure Uniform and Effective Public Notice of Remote Court
Prnceedings During COVID-19 and Beyond
To ensure meaningful public access, public notice of when
remote proceedings will take place and how members of the
public can observe them is crucial. Courts have been
inconsistent in this respect during the COVID-19 pandemic. Many
District court policies now make clear that presiding judges
should provide a publicly accessible link to remote hearings
and other proceedings on the docket for the relevant matter, or
upon request. Other courts have posted links to remote
proceedings on their websites--an approach that has the
advantage of reaching a broader swath of the public, as it does
not require a PACER account to access.
Unfortunately, however, during the pandemic, some members
of the press have reported difficulty in obtaining information
about when certain proceedings were to take place or have been
required to request access to proceedings on a case-by-case
basis.
This uncertain terrain poses challenges for journalists and
other members of the public attempting to observe specific
court proceedings that, absent COVID-19 restrictions, they
would have been able to attend in person. The Reporters
Committee urges Congress to support efforts to ensure that
whenever proceedings that would normally be held in open court
must instead be held remotely due to a national crisis or
otherwise, courts should provide effective public notice of
those proceedings, including instructions for how members of
the press and public can easily observe them. Uniformity in the
manner in which courts provide such notice would remove an
obstacle for members of the press and public exercising their
rights of access.
C. Pass H.R. 6017, H.R. 5645, and R.R. 6642
Three pending bills would increase public access to the
Federal courts:
H.R. 6017, known as the ``Twenty-First Century Courts
Act,'' would require live audio and an online archive of ``each
oral argument and opinion reading'' before the Supreme Court be
``made available for public transmission over the Internet.''
\23\ It would also create live audio and archival requirements
for all Federal Appellate proceedings. \24\
---------------------------------------------------------------------------
\23\ H.R. 6017, 116th Cong. 5 (2019).
\24\ Id.
---------------------------------------------------------------------------
H.R. 5645, known as the ``Eyes on the Courts Act of 2020,''
would require that cameras be allowed in all Supreme Court and
Federal Appellate court proceedings. \25\
---------------------------------------------------------------------------
\25\ H.R. 5645, 116th Cong. (2020).
---------------------------------------------------------------------------
H.R. 6642, known as the ``Court Access Amid the Pandemic
Act,'' would require any oral arguments in Circuit courts and
District courts be made public in real time via video
teleconferencing and telephone conferencing and be permanently
archived on the internet. \26\
---------------------------------------------------------------------------
\26\ H.R. 6642, 116th Cong. (2020).
---------------------------------------------------------------------------
While Supreme Court justices have expressed concern in the
past that live audio and video could potentially hurt the
sanctity and tradition of the court, and that the Supreme Court
is unique and need not follow trends with respect to public
access in the lower courts, the recent demand for streaming of
the court's oral arguments in May 2020 clearly shows the
American public wants to know about its tremendously important
work.
Further, there is no indication that the livestreaming has
had a deleterious effect on the court's operations--quite the
contrary. If anything, the manifest public interest in the
court's deliberations has had a beneficial effect on how the
public views access to the Federal Judiciary. According to
recently released polls, 83 percent of Americans supported
regular live-streamed audio at the Supreme Court, and nearly 70
percent called for all courts to allow cameras in the
courtroom. \27\ Finally, it is worth noting the important role
that C-SPAN has played in facilitating audio access for the
public to recent Supreme Court arguments. Just as C-SPAN has
provided visibility into the operations of Congress, it has now
taken up that mantle with respect to the Supreme Court. It
should be permitted to continue to do so.
---------------------------------------------------------------------------
\27\ See Kalvis Golde, Public Approves of Live Access to Supreme
Court Arguments, Polls Show, SCOTUSblog (May 21, 2020, 3:20 p.m.),
http://perma.cc/2GDB-P2C7; see also Poll: 83% of Americans Support
SCOTUS's Decision to Livestream; 70% Want to Keep Live Audio Post-
Pandemic, Fix the Court (May 20, 2020), https://perma.cc/9G5R-P673.
---------------------------------------------------------------------------
In sum, the Reporters Committee believes that increased
public access to the nation's Federal courts, including the
Supreme Court, is, on balance, an important step to promote
accountability, transparency, and an informed electorate.
I want to thank the Committee for including me in this
important conversation surrounding court access and look
forward to answering any questions you may have.
Mr. Johnson of Georgia. Thank you.
I understand that we are having some problems with my
microphone on the WebEx platform and so we are going to take a
pause to see if we can work that out.
I must apologize to everyone. I was pretty strict on the
30-second tapping at your four minutes and 30-second mark for
you, Judge Campbell, and also for you, Judge Fogel. I started
slipping with Chief Justice McCormack and I just totally failed
with Ms. Wasser. So, I apologize. I couldn't help myself, it
was getting so good.
So, at this time, we will take a brief recess so that we
can fix our problem here. We will recess briefly.
[Recess.]
Mr. Johnson of Georgia. The hearing is back, and we will
now proceed under the five-minute rule with questions. I will
begin by recognizing myself for five minutes.
Judge Fogel, Rule One of the Federal Rules of Civil
Procedure establishes that the rules must be construed to
secure the, quote, ``just, speedy, and inexpensive
determination of every action and proceeding,'' end quote.
How should those three values animate the Federal
Judiciary's approach to using a virtual--to using virtual
technologies during the pandemic and beyond?
Judge Fogel. Thank you, Mr. Chair.
Rule One is the basis of everything else. That is the way
it has always been interpreted, and all of the other Federal
rules need to emanate from those core values in Rule One.
So, my personal view of this is that the--particularly
during the pandemic but, hopefully, even afterwards, if we can
use virtual technologies to honor those values more fully we
should.
I think the Federal Judiciary ought to do that, and that is
really why I have gotten so interested in this issue because I
think this is not necessarily consistent with the institutional
conservatism of the Federal courts. I think there is a
tremendous opportunity here.
The one caveat I have, really, is in the area of procedural
justice and the data that we have so far is interesting. As
Chief Justice McCormack pointed out in some of the proceedings
in the State courts, people actually are happier to appear
virtually.
They don't have to take a day off of work. They don't have
to travel. The default rates in debt collection cases and
evictions and things like that have gone down enormously
because of the availability of virtual proceedings.
So, that is a good thing. The Federal courts don't do a lot
of those kinds of cases except in bankruptcy, and the
bankruptcy judges that I have spoken with are actually quite
receptive to ways to expand virtual proceedings for many of the
same reasons, particularly individual bankruptcies.
I think sometimes virtual technology can help us. I think
we need to be careful and I say this is not a one-size-fits-all
situation.
There are proceedings where I think honoring the values of
Rule One requires some type of more somber, more solemn type of
situation, and sentencings come to mind. I think there may be
constitutional limits when we talk about the confrontation in
criminal cases.
Essentially, Mr. Chair, I think there is a tremendous
potential here for using modern technology to better implement
Rule One.
Mr. Johnson of Georgia. Thank you.
Chief Justice McCormack, would you respond to the same
question?
Judge McCormack. Yeah. Thank you very much.
There are hard questions and I think I agree with
everything Judge Fogel said. So, let me start there. There are
definitely areas where there are conflicting values that we are
going to have to spend some time thinking about, talking about
with stakeholders, and figuring out our way through.
Judge Fogel is absolutely correct that there are some
proceedings for which remote platforms will not be appropriate.
My court just issued a unanimous opinion this week holding that
a witness's testimony at a criminal trial by Skype violated the
defendant's Sixth Amendment right to confrontation.
There will be proceedings that are not appropriate for
remote platforms. As everybody knows, a lot of what we do,
especially in State courts, are not jury trials or criminal
jury trials.
The high volume dockets, especially the ones that we are
going to see a lot of in the coming months because of backlogs,
like evictions and debt collection cases and other District
court cases will be not only appropriate for remote platforms
but will increase participation.
Judge Fogel is correct that we have seen in jurisdictions
that are using remote platforms in these high volume dockets
much higher rates of participation, whiche obviously, enhances
the first-order values that you are asking about.
How we proceed in those more difficult cases is something
we are going to all have to think about and work through.
We want to be able to give people options because even if a
litigant has a right to insist on in-person participation there
will be some that are interested in waiving that.
So, what we are working on in Michigan is best practices to
give people options. We have just finished a jury trial by
Zoom, it was a hypothetical jury trial.
We had real lawyers and a real judge acting in those roles,
but we had a member of our staff playing the criminal
defendant.
We had volunteers, family members and law students, play
the jurors and we did it so, we could develop best practices
for the litigants who are interested in proceeding that way
rather than waiting until they could do it safely.
There is a lot to figure out. I want to come back to where
I started, which is it is a tremendous opportunity for us to
figure out how we can do a lot of what we do better, more
transparently and more accessibility.
Mr. Johnson of Georgia. Thank you. My time has expired.
I now call upon my colleague, Congresswoman Roby, for five
minutes.
Ms. Roby. Again, thank you all to our witnesses for being
with us today.
Judge Campbell, during the pandemic there has been an
increase in the use of technology that we have discussed here
today by Federal courts and the general public alike.
However, there are valid security concerns surrounding the
use of technology platforms such as Zoom.
Judge Campbell, if you will, tell the Committee how have
Federal courts and the Judicial Conference worked to address
those security concerns?
Judge Campbell. Thank you, Congresswoman.
There has been a significant increase in the use of video
and audio technology during the pandemic, and I agree with
Judge Fogel and Chief Justice McCormack that it is a very
valuable learning experience.
In fact, it was the Federal courts that went to Congress
and asked for the ability to use audio and video proceedings in
criminal cases where it wasn't authorized under the existing
rules.
There has been concern about the security of video
conferencing platforms. Technical experts at the Administrative
Office of the Courts have worked with IT specialists in each of
the individual District and Circuit courts.
They have vetted different video platforms for security,
for the ability of outsiders to hack or disrupt proceedings,
and the Administrative Office has made recommendations to local
courts as to which kinds of video platforms were the most
secure and ought to be preferred in those proceedings and I
think the courts have been using those.
I think the technology platforms are improving as the
pandemic goes on. We have been very conscious of security and
the technology experts within the Federal courts have been
quite active in ensuring that the tools that are used are
secure.
Ms. Roby. So, while the COVID-19 pandemic may have
necessitated the use of technology in some instances, some
commentators and there has been arguments made here today that
both the Federal and State courts alike should be using
technology in the courtroom even after the pandemic passes.
However, as I mentioned in my opening statement and has,
again, been brought up since then, not every jurisdiction may
be equipped to administer remote technology.
Again, I have already mentioned this, but some
jurisdictions may have unreliable Internet connection or poor
access to quality broadband.
So, Judge Campbell, I am going to give you an opportunity
as well to weigh in on this issue.
Judge Campbell. Just a few thoughts in response to that,
Congresswoman.
We have heard of and are aware of the fact that there are
jurisdictions where the ability to connect to the necessary
locations has been limited by technology.
We have heard that is particularly true where Federal
detainees are housed in local jail facilities or detention
facilities that have not had video conferencing capability or
have had limited telephone capability.
The courts have worked with those facilities so that the
video and teleconferencing proceedings in criminal cases could
go forward. Progress has been made.
There are still clear limitations by matters external to
the court, such as, the availability of broadband or the
funding of a local facility where individuals are housed.
I will note that I understand an important part of this
proceeding focuses on civil cases, and before the pandemic
arrived Federal judges were using technology in civil cases
relatively frequently to conduct hearings for case management,
for oral arguments.
It is a very common thing in my court for participants to
call in to proceedings if they are from out of town, and a lot
of pretrial work in the civil side was already done by
technology.
Obviously, we are doing a lot more of it now, and I agree
with the points made by the speakers already that there is much
we can learn from the experience we are having in the pandemic.
Ms. Roby. I would just say, given all of these limitations,
we have got to ensure that courtrooms are ready to reopen for
those who may not be able to participate in remote Judicial
proceedings. So, if you want to weigh in on that as well.
Judge Campbell. I agree with that, and the question of how
to reopen courtrooms and how to conduct proceedings carefully
is a very difficult one, a critical one.
Every District court in the United States is investigating
and developing policies for how you bring in 60 people for jury
selection, how you then seat a 12- or 14-person criminal jury
that will be together for two weeks, and how in that process
you keep the jurors safe, how you socially distance, how you
limit exposure to a lot of things in trial that would normally
be presenting health risks.
Who do you screen at the front, how do you determine a set
criteria for who is allowed into the courthouse. All of those
issues are being explored.
Policies are being developed. We want to reopen the
courtrooms as soon as possible consistent with public health,
and courts are working on the basis of their local
circumstances to develop those policies.
Ms. Roby. I have gone over my time, Mr. Chair. I appreciate
that.
I would just ask that this Subcommittee be kept informed
every step of the way about what this looks like. Obviously, it
is important for us to know the things that the Judiciary is
putting into place as it relates to best practices, moving
forward, and understanding the urgency as well as these cases
continue to backlog.
So, thank you, Mr. Chair, for letting me go over. I yield
back.
Mr. Johnson of Georgia. Thank you.
Next, the gentleman from Arizona, Mr. Stanton, for five
minutes.
Mr. Stanton. Thank you so much, Mr. Chair, for hosting this
critically important hearing and thank you for the outstanding
witnesses for being with us here today.
COVID-19 has presented challenging hardships to our Federal
court operations. Maintaining fair and equitable access to our
justice system continues to be of utmost importance, and I
commend the judiciary for being innovative in its response.
However, we must be vigilant that the courts are
considering how its adaptations are affecting underserved
communities. One of these critically important communities is
people living in Indian Country.
My home State of Arizona is fortunate to have a significant
Native American presence with 21 tribal nations in our state.
Sadly, COVID-19 has hit these communities hard.
For example, the Navajo Nation has one of the highest per
capita rates in the country, which has resulted in curfews and
lockdowns. With a high infection rate coupled with a limited
Internet access and vast rural areas, I am concerned that
people living in Indian Country are experiencing unique
difficulties in accessing the Federal courts.
Given the significant presence in Indian Country--the
significant Federal presence in Indian Country, I want to ask
specifically how the judicial system is accounting for
challenges present there. I want to ensure that their needs are
thoughtfully, thoroughly, and equitably addressed.
I have a question for Judge Campbell. You have been a judge
in Arizona for nearly two decades and have presided over a
variety of areas.
We are fortunate that someone with your experience and
expertise serves on the Committee on Rules of Practice and
Procedure, and I notice that both the Committee on Federal
Judiciary COVID-19 Task Force have representatives from
important stakeholders.
Do you know if the Federal Judiciary COVID-19 Task Force or
the Committee on Rules of Practice and Procedure have tribal
representation?
Judge Campbell. Thank you, Congressman Stanton, and thank
you for your support of the courts in Arizona.
There is not, to my knowledge, tribal representation on the
committees within the Federal Judiciary that oversee the rules
of practice and procedure.
Those committees consists of Federal judges, academics, and
practicing lawyers who are appointed for a term of years to
work on the committees, and I am not aware of a Native American
who is present on those committees.
The AO Task Force consists of Chief District Judges, Court
Unit Executives, a Representative of the Federal Public
Defenders, a Representative of the U.S. Attorney's Office, a
Representative of the U.S. Marshalls and the General Services
Administration.
I know that task force has reached out and sought input
from courts around the country on issues that they are dealing
with.
As you know, Congressman Stanton, our Chief Judge in
Arizona, Chief Judge Murray Snow, is very conscious of the
needs of Indian Country. He has been communicating with the
Administrative Office about those needs.
He has developed some innovations for the Federal courts to
reach out to Indian Country including holding jury trials on
the Navajo reservation, which has happened under his
leadership.
Of course, we have as a member of our court a Federal
District Judge, Diane Humetewa, who is a Member of the Hopi
Tribe, and brings that unique perspective to our court and to
the Federal courts, generally.
So, my hope is that the courts that deal with Native
American populations will be active as I believe ours is in
helping the Federal court system understand those needs and
serve them better.
Mr. Stanton. Thank you for that answer, and I do agree that
Judge Snow is very concerned about those issues. I would ask
that you would consider advocating for adding a tribal
representative to both the task force and the committee.
I think that would be--the communities, our country would
be better served if that was the case, particularly for the
unique role that Federal courts play in Indian Country and
Arizona around the country.
Then one final question for Judge Campbell or anyone else.
What work is being done to ensure Native American
representation on juries, particularly those that originate in
Indian Country?
Judge Campbell. Well, I can respond to that briefly,
Congressman.
In Arizona, when we hold jury trials in criminal cases or
civil cases, we divide the State into three different jury
districts.
We have a northern Arizona jury district that encompasses
the Navajo reservation and a number of other Native American
Lands, and when an event occurs in northern Arizona, whether it
is a civil or a criminal matter, the jury is drawn from that
northern Arizona area specifically for the purpose of including
everybody within those areas including Native Americans.
So, it is typical when we have cases that arise in northern
Arizona we will have Native American Members of the jury.
I think there is a need to increase their participation, to
reach out to those communities and encourage their
participation, and that is something that Chief Judge Snow is
doing quite actively and Judge Humetewa is also.
Mr. Stanton. I think I am out of time so I will yield back.
Thank you, Mr. Chair.
Mr. Johnson of Georgia. Thank you.
The gentleman from Virginia, Mr. Cline, is recognized for
five minutes.
Mr. Cline. Thank you, Mr. Chair.
The COVID-19 crisis has caused many of us to change the way
we perform everyday duties. Whether it is teleworking, Zoom
calls, or wearing masks in public settings or ordering everyday
essentials online, our way of life has changed drastically in
just a few short months.
For our judiciary system, the challenges that these changes
have caused have been monumental, with Federal and State courts
grappling with how to best continue their essential operations
while keeping everyone involved safe.
It is my understanding that the Administrative Office of
U.S. Courts has sought to assist the Federal Circuit courts in
their response to the crisis by issuing guidance and acting as
a repository of information, and for that I am very grateful
for the leadership role that the AO has undertaken.
Although many Federal and State courts have closed
courthouses and stopped court proceedings, we must remain
mindful of the rights of those who come before our court system
seeking justice.
One of the ways that we, in Congress, have sought to
support our court system during this time is through passage of
the CARES Act, which permits the Federal Judiciary to conduct
criminal proceedings via audio or video conference subject to
certain constraints.
For example, if the Judicial Conference finds that the
COVID-19 emergency will materially affect the functioning of
Federal courts, the Chief Judges of Federal District courts may
authorize the use of video teleconferencing, or telephone
conferencing if video teleconferencing is not reasonably
available for criminal proceedings in certain instances.
So to assist with these changes, the CARES Act appropriated
a total of $7.5 million to the Federal Judiciary to address
immediate information technology needs and increased testing
and treatment costs for the pretrial and probation programs:
$500,000 to the Supreme Court, $1 million to defender services,
$6 million to Federal courts and other judicial services to
prevent, prepare for, and respond to coronavirus.
While I support transparency in our government, I do remain
concerned about the impact that cameras in the courtroom could
have on proceedings.
However, as an advocate of same-day audio, I was thrilled
to see the Supreme Court allow for real-time audio of their
oral arguments this sessions. This is a worthy reform to our
Federal Judiciary and I hope that it will remain in place long
after the coronavirus crisis ends.
I thank the witnesses for their time today to discuss the
challenges that the coronavirus has caused, and I would like to
ask Judge Campbell, due to the pandemic, many courts have had
to suspend or stop jury trials in light of pressing health
concerns.
It is my understanding that the Judicial Task Force for
COVID-19 convened a working group to consider how grand juries
and juries may safely reconvene as courts reopen.
What are some of the most important considerations for
courts to considers as they restart grand jury and jury trials?
Judge Campbell. Thank you, Congressman.
The subgroup of the AO Task Force that you mentioned
produced a booklet of 10 or 12 single-spaced pages of
recommendations on the kinds of steps that courts can take to
ensure the health and safety of jurors when they return to the
courtroom.
It is really very detailed. In fact, I reviewed it
carefully because I had a jury trial scheduled to start next
Monday. We had postponed it in light of the rising infection
rates in Arizona.
It is a very detailed description of the measures that
should be taken to ensure that jurors aren't infected when they
come for jury service, even down to detail of how many people
should be in an elevators, where you should put markings on the
floor for jurors to stand, where you should put markings on the
bench in the courtroom for jurors to be six feet apart, the use
of Plexiglas screens.
It is a very detailed document. Equally important, I
believe, is that Federal and State courts as well be able to
assure jurors that when they come to court their health will be
protected.
So, every Federal court has been directed to prepare a
public notice--ours is about a page and a half--that sets forth
in detail the steps we will take to ensure the jurors' safety
when they come to our courthouse, and that goes out with every
jury summons so the jurors know we are taking those steps and,
hopefully, can ensure their safety when they come.
There have been two jury trials held recently, one in the
Northern District of Texas and one in the Eastern District of
Texas. They were held last week.
The procedures followed. The precautions taken have been
shared with the Federal courts generally, and we will continue
to watch and learn as we go through the process of resuming
jury trials.
Mr. Stanton. Thank you.
Mr. Chair, I yield back.
Mr. Johnson of Georgia. Thank you.
I will now recognize the gentleman from California, Mr.
Correa, for five minutes.
Mr. Correa. Thank you, Mr. Chair, for holding this most
important hearing.
As I listen to our witnesses--and again, thank you very
much for being here today. As I listen to your testimony I am
reminded of that saying that justice denied by delaying
justice. I am also thinking back to my experience in
government, which is government usually manages by crisis. It
is very difficult for government to manage beyond the next day.
I am also thinking about 9/11. We never really went back to
being the same after 9/11. As I think about COVID-19, I suspect
and I hope that we will not go back to business as usual after
COVID-19.
With that being said, as I think about your operation
today, essentially, assuring that our court systems work well,
assuring that we have due process, we talk about a study. We
talk about studying what we are doing today.
Yet, I don't think your branch of government has the luxury
of time to study the issue. I think right now--I suspect that
right now your local courts, courts at all level, are managing
this crisis by adopting, by changing.
So, I would say that we don't have the time to study the
issue. Our libraries are full of studies that after those
studies are concluded they are just put away and we move on to
the next crisis.
I would ask all of you could you begin to give us a list of
those best practices that are being implemented right now that
will change for the better the way our court system actually
operates.
Ms. Wasser, I want to say that I was very delighted to hear
that public participation, public interest in the judiciary
system has actually gone up. If there is a silver lining in
this crisis, it is that people are watching proceedings today
online.
Chief Justice McCormack, you mentioned the word dentists,
which brought back some very negative emotions to my psyche,
and I am thinking to myself probably most Americans would look
at a courtroom the same way. I don't want to go do jury duty. I
don't want to go near that building, just like you would with a
dentist.
So, again, I ask all of you in general what are the best
practices that you are implementing right now that we could
advance on that could be permanent to make sure we better the
way courts operate in the United States?
Open it up for an answer.
Judge Fogel. May I--
Mr. Correa. Yes.
Judge Fogel. This is Judge Fogel. Congressman, I think that
is an excellent question.
One of my answer to your question about study, because I
was probably the person who emphasized that the most, is not
something that would be done over years of time and sit on a
shelf.
I think you are quite right that there is urgency here. I
think one of the real assets that the Federal courts have is
they have resources to look carefully at what they are doing
and produce exactly the type of list of best practices that you
are asking for.
I don't think it can be done on the fly, but I think it can
be done relatively soon through the type of applied research
that the Federal courts are very good at.
In fact, the agency that I had the privilege of directing
for seven years at the Federal Judicial Center that is what it
does. That is one of its two major missions. One of them is
education for judges in court management and the other is
applied research.
I think working with the committees and the task forces
with Judge Campbell, the Task Force, the rest of the Judicial
Conference, that is exactly the type of reflective product to
come out, and I think it could come out in a matter of months
rather than a matter of years and I think it is exactly the
type of guidance that we need: What have we learned, what are
the best practices, what should we keep, and what should we
stop doing.
That is exactly the right questions and the good news is
that the Federal courts actually have an ability to do that
type of applied research.
So, that is what I would say.
Judge McCormack. Let me jump in as well. I also appreciate
the question and it is an excellent question.
I agree with you that a lot of people view courts like
dentists' office. They are not usually looking forward to going
there.
I always say usually when people are in court something
traumatic and stressful is happening in their lives. Not
always. We do have adoptions. Sometimes people need to get
married in courts. That can be fun.
Usually something traumatic and stressful is happening, and
so how the courts treat people, going back to my opening, is
the whole ballgame.
I always say we are kind of failing trust in government.
How we treat the 3 million different, the 6 million people who
need their cases resolved in our courts every year gives us an
opportunity to really grow faith in government or erode it,
depending on what we do.
So, the best practices that we are learning right now we
actually are immediately putting out there. Let me refer you to
the National Center for State courts' post-pandemic. It has got
a big long name--Rapid Response Technology Innovation
Committee. I don't even know if that is the right name.
I co-Chair it with the talented court administrator from
the State of Texas, David Slayton, and we have already produced
a series of best practices, best technologies, and put it out
there for State courts across the country, and we meet weekly
in three subcommittees to update it.
We are actually doing exactly what you think we should be
doing, I want you to know, and we are also doing it in a way
that is not necessarily perfectly comfortable for judges and
lawyers.
I always say, we were trained to move slowly. We are small
conservative for lots of normative cultural and important
reasons, frankly.
Yet, we are right now having to Act like entrepreneurs, and
it is for the benefit of the people of the country who need to
use our courts to resolve really important disputes in their
lives, often without lawyers.
The transparency we are seeing from remote proceedings, the
accessibility we are seeing from remote proceedings, and the
way in which people feel less intimidated and more able to
participate are easy answers to your questions.
I think the harder answer is we have to continue to be
capturing those best practices and sharing them widely.
Thank you for the question. We are working on it.
Mr. Correa. Thank you, Mr. Chair. I am out of time.
Mr. Johnson of Georgia. Thank you. We will embark upon a
second round of questions and I will begin by asking Ms. Wasser
that you note in your testimony that courts have taken
different approaches to adopting the Judicial Conferences
guidance on providing access to public and the media.
What issues have members of the press run into under this
disparate court by court approach?
Ms. Wasser. Sure. Thank you, Chair, for the question.
So, at the beginning of the COVID-19 pandemic, we were
seeing some disparities with reporters noting how they could
receive public notice of remote proceedings, whether that be a
link posted on their website, which would be the most publicly
accessible, or trying to figure out how, outside of being noted
on a pacer on the docket to call in to these proceedings.
There were some instances where, I believe it was at the
District court level, there was remote access made available
for the attorneys and the litigants, but not a member of the
public line or not a press access line.
I would say in response to Representative Correa's
question, this would be for a best practices standpoint an
opportunity to make notice more widely available.
This is something as easy as posting a link on the front of
a court website to make sure that members of the public and
members of the press are able to access it and that would also
help increase public participation.
I mean, also seeing this as a possible opportunity for
long-term investment, Congress has an opportunity here to
provide support and guidance through funding, maybe through the
appropriations process, to allow all levels of the Federal
courts to broadcast and live stream their proceedings while
also making notice more widely available.
I will note Ranking Member Roby's concern about her
district and lack of access to broadband, and I appreciate and
I understand that concern.
A potential fix there would be the ability to, if they
can't stream video or even stream audio without the access to
broadband, that they provide a dial-in number, giving members
of the press and the public the opportunity to be able to
access the proceeding during remote times and, as courthouses
start to reopen, this would help prevent someone who is
asymptomatic from coming into the courtroom but still being
able to access the proceeding at home.
So, I think there are real opportunities here to move
forward, especially on the notice front.
I would also mention, I know a couple people have mentioned
studies. We can look and see what the courts are doing now. All
of the circuit courts except the Sixth Circuit have live audio
available as of yesterday. So, moving forward, we can see what
has worked with live audio and start to take incremental steps
from there.
Mr. Johnson of Georgia. Yes, thank you.
We are only limited by the imagination of the judicial
branch in terms of its requests for funding for any particular
programs that it may deem appropriate for the Judicial branch.
We are only limited in terms of that imagination.
Ms. Wasser and Chief Justice McCormack, if you would
address this issue. What message to the public would the
Supreme Court send if it decided to stop broadcasting its
proceedings and what message would the court send if it
expanded public access by allowing live video, not just audio,
of its proceedings?
If I might impose upon you, Chief Justice McCormack.
Judge McCormack. Yeah, thank you for that question.
I am on record as being in favor of live streaming
proceedings at the Supreme Court as well as in the Courts of
Appeals.
My court, the Michigan Supreme Court, has been live
streaming our proceedings for many years, from long before I
joined it in 2012.
The reason we do it is because Michigan is a big State and
people who live far away from Lansing, but are citizens of our
State have, in our view, the right to see what their court is
doing and how they are doing it.
It feels, to me, like it builds trust and confidence in our
branch, which, as I said, is the only currency we have. So,
transparency is the way to build that and I think it only
increases the confidence in the court's work.
One hundred percent of the time 50 percent of the people
don't like our decisions. We usually end up disappointing
everybody by the end of a term.
If they believe that we are operating fairly, that we are
listening, that we are treating everybody with dignity and
respect, they will have faith in our outcomes, whether it is
their favorite outcome or not, and that is the big benefit of
transparency.
I will say that some of the cases we hear in live stream, I
think the only person watching is my dad, and he just wants to
see me. He lives in North Carolina.
So, they don't all have the same amount of public interest.
They should all have the same accessibility to everybody who
lives in our State and, frankly, everybody who lives anywhere.
As I said, I believe it builds trust and confidence in the
work the courts do, and that is the whole ballgame.
Mr. Johnson of Georgia. Thank you.
Ms. Wasser, if you would respond.
Ms. Wasser. Yes, thank you, Chair.
I would echo the sentiments of the Chief Justice. I think
the Supreme Court, if they do decide to extend a video or even
live audio access, it promotes a message of transparency.
It helps extend the gains of transparency that have been
made due to the situation of this pandemic. Increasing public
access is something that is extremely important to help promote
accountability and promote transparency.
I think they also send a message of strengthening our
democracy. As the Chief Justice mentioned, being able to view
these proceedings or listen to them via audio would send a
strong message that the public does have an interest in what
the court is doing.
We have seen in the past that justices have repeatedly said
there is no demand for this or they don't believe that people
would really understand this part of the process with oral
argument.
What we have seen from the 10 oral arguments being live
streamed in May was that simply isn't true. People want this
access.
They want to know what the nation's highest court is doing,
and it helps better inform their decisions moving forward in
how they decide to trust and build confidence in the judiciary.
I think it is very important, moving forward, that they
continue to extend this access. I believe they have also made
comments about lawyers potentially grandstanding, that is why
they didn't even want audio.
In my home State of Ohio, I know the Ohio Supreme Court has
been also live streaming and broadcasting their oral arguments,
and I believe it only happened once in 15 years that a lawyer
has grandstanded for the camera and the justices told him to
stop and they haven't had a problem since.
We can look back on the audio files of those 10 cases in
May that there was no grandstanding. There were just people
talking through these cases. It was easy to understand for the
American public and it really builds trust in the Federal
Judiciary.
Mr. Johnson of Georgia. Thank you. I will now recognize the
gentlelady from Alabama for her questions.
Ms. Roby. Again, thank you all for your testimony here
today and your willingness to answer our questions.
Judge Campbell, the Judicial Conference of the United
States submitted a letter to Members of Congress on April 28th
of this year with a long list of legislative proposals in
response to COVID-19.
He very specifically submitted by the Judicial Conference
is to convert temporary judgeships into permanent judgeships.
So can you briefly discuss this proposal and describe how it
would help the Federal Judiciary respond to the ramifications
of the pandemic?
Mr. Chair, I will just note this is already part of the
record because it is part of Judge Campbell's testimony.
Judge Campbell. Yes, thank you, Congresswoman.
There are two parts to that request that have been made.
One part focuses on bankruptcy court. We are expecting that
there will be a surge in bankruptcy filings because of the
unfortunate economic outfall of the pandemic.
There are 14 temporary bankruptcy positions that are
identified by the courts and we request that those be made
permanent positions. That will allow additional and permanent
judicial resources in those districts where they are needed.
There are also temporary Federal judgeships, which--some of
which have been temporary for a long time. One in my district
has been temporary for 17 years.
Those typically are extended one year at a time and the
courts don't know whether they will be extended or not, and if
they are not extended and the judge retires then the position
is not filled.
So, even courts with burgeoning and demanding dockets face
the prospect of actually losing judges if a temporary judgeship
is not extended.
So, that is why we have asked that in these areas of great
need districts that are very busy and bankruptcy courts that
are going to be very busy, the Congress make permanent these
judgeships which currently are only temporary.
Ms. Roby. I appreciate that.
There is other legislative proposals in this letter. So, I
just want to give you an opportunity if there is something that
you would like to highlight for us in the time I have
remaining.
Again, thank you very much for your testimony, all of you
here today.
Judge Campbell?
Judge Campbell. Thank you.
I don't think that I will attempt to identify any
particular of the 17 proposals. There are a wide range of
issues that are addressed. They have all been developed in
consultation with courts around the country.
A number of them affect Federal public defenders and their
needs which are, obviously, critical during the time of the
pandemic.
So, I would simply request that please review and consider
all of them. The Conference considers them all important.
I would like to add one point in response to what
Congressman Correa asked a few minutes ago about best
practices.
I mentioned that there is a location on the Federal courts'
Intranet where courts can go for information, and one of the
categories of information on that Intranet are court orders and
local practices--best practices, in effect--and if a judge goes
there or a district goes there on the Intranet the judge can
find, literally, hundreds of orders from courts around the
country that reflect the best practice, and the Administrative
Office is also trying to synthesize information from courts and
get those out.
So, there is a very conscious effort to learn from each
other and to learn from the State courts as we go through this
unique time.
Ms. Roby. Thank you.
Mr. Chair, I yield back.
Mr. Johnson of Georgia. Thank you. I now recognize the
gentleman from Virginia for five minutes.
Mr. Cline. Mr. Chair, I just want to thank the Witnesses
for participating. I don't have any further questions at this
time.
I will yield back.
Mr. Johnson of Georgia. Thank you.
The gentleman from California is now recognized.
Mr. Correa. Thank you, Mr. Chair.
I, first, wanted to clarify. We talk about access to the
courts, and Chief Justice McCormack, you mentioned being on the
record to supporting video live streaming of your courtroom in
the appeal courts.
What about the lower courts? Do you feel the same way about
having those live streamed?
Judge McCormack. I do, which is not to say that there
should not be exceptions. There are exceptions right now in
public courtrooms for when we do not provide access.
You can guess what those are. Protecting witnesses who need
protection is something we have a sophisticated process for
doing in our courtrooms throughout the country, and we can do
it in our virtual courtrooms as well, and we should.
For routine matters, live streaming processes in courtrooms
including trial court rooms should be the norm. Again, it
builds confidence.
In Michigan, you can go on the Michigan Supreme Court
website. You can click on the virtual courtroom directory. You
can then click on any county in the State, see which courts are
operating, and then click on the live feed, which is a YouTube
feed, and watch those courts operate.
The press can do it. The public can do it. Family members
of litigants who are immuno-compromised and can't make it to
court can do it.
It is, in my view, really important to building confidence
in the work that this branch does and, like I said, I believe
when we build confidence in our work we are really building
trust in government.
Mr. Correa. Totally agree.
Judge Campbell, the same question to you. Any thoughts
about local courts having those proceedings online and viewed
by the public?
[Pause.]
Judge Campbell. Okay. Does that work?
Mr. Correa. Yes.
Judge Campbell. All right. Thank you, Congressman.
As you know, it has been the policy of the Judicial
Conference since the mid-1990s not to live broadcast District
court proceedings and there is actually a Federal Rule of
criminal procedure that addresses that as well.
The policy of the Judicial Conference has been to allow
Courts of Appeals to make decisions on what they will live
stream, and as Ms. Wasser indicated a few minutes ago, many of
them do that as a routine basis and most of them are doing it
now during the pandemic.
That has been the policy and remains the policy of the
Judicial Conference. I think it is also absolutely true,
though, that we are learning from the pandemic. Judges are
doing more video and teleconferencing proceedings.
I agree with Judge Fogel there is much to be learned from
that process. The policy that exists now is not to allow
broadcasting from trial courts.
Mr. Correa. Same question to you, Judge Fogel.
Mr. Johnson of Georgia. If you will unmute.
Judge Fogel. Thank you. Thank you very much, Congressman
Correa. I was a District Judge for 20 years, and before that I
was on the State court in California where the default was the
opposite, where everything was presumed to be open and capable
of being transmitted.
Frankly, I agree, particularly on reflection, having been
out of the judiciary for a couple years, with what Chief
Justice McCormack said. There are situations where you have to
be careful--privacy, cooperating witnesses, things like that,
where it is just not appropriate.
In general, I think sunshine is a good thing, and the
Federal courts have been forced to do something which is
outside their comfort zone as a result of COVID and that is
exactly the type of thing that they should take the opportunity
to think about again.
The outcome, of course, is up the Judicial Conference and
it is up to them to decide what policy they think makes sense.
Now, we have some actual data as to what has occurred when
these proceedings have been open.
It is something that ought to be looked at and reflected
upon and thought about in terms of what we do, going forward.
Mr. Correa. Ms. Wasser, the same question.
Ms. Wasser. Sure. Thank you, Congressman.
I would echo the sentence made by my fellow witnesses.
There should be a presumption of openness here. I agree with
the other witnesses that there would be some situations in
which District courts would need to take into consideration
privacy of witnesses.
District courts could also keep broadcast restrictions in
place to stop the rebroadcasting of video access. I would note
that there was a pilot program sent by the Judicial Conference
in 14 District courts over four years. I believe, in 2011 to
2015, and the results of those show that a lot of the
participating judges and attorneys actually favored court
proceedings--more than 70 percent, in fact.
At the end of that pilot program more judges were in
support of cameras in the courtroom than against and most
judges and attorneys said they would be in favor of permitting
video recordings of civil proceedings. We note that in our
written testimony that we submitted.
Another thing to note at the District court level with that
pilot program was that many judges and attorneys were actually
quite surprised that cameras were as unobtrusive as they were.
So, moving forward, I don't see any problem with increasing
access at the District court level, although I would ask that
Congress provide that support and guidance to the Judicial
Conference and work with the Judicial Conference to possibly
amend the cameras in the courtroom policy because other
witnesses have mentioned and you, Representative, have
mentioned we are not going back to our old normal and this is
the new normal.
Sunlight is the best disinfectant, and regardless of
whether there is a pandemic or not, we would advocate that you
do what is most accessible for the American people.
Mr. Correa. Thank you very much. I thank the witnesses.
Mr. Chair, I yield.
Mr. Johnson of Georgia. Thank you.
The Chair will now recognize the gentleman from Ohio, Mr.
Chabot, for five minutes.
Mr. Chabot. I thank Chair, and I want to thank the
witnesses for being with us, if not in person at least through
this procedure today.
While this hearing is focused on how Federal courts have
handled their work during the pandemic that has kept most at
home, it provides a great opportunity to raise the importance
of allowing cameras in courtrooms to maintain or improve public
access to court proceedings.
Earlier in my tenure as a Member of Congress and a Member
of this Committee, I introduced legislation, the Sunshine in
the Courtroom Act, and in fact, I believe, along with now
Senator Chuck Schumer on this Committee we introduced it
together and we have introduced it with other Members over the
years, and it would have allowed Federal judges to permit audio
and visual coverage of court proceedings in all Federal
courtrooms at the discretion of the judge. If a judge didn't
want to do it then it didn't have to happen. Overall, it would
be available.
In this Congress, Chair Nadler and I introduced H.R. 5645,
the Eyes on the Courtroom Act. This important legislation will
require that cameras be allowed in all Supreme Court and
Federal Appellate Court proceedings unless a Presiding Judge
determined that permitting cameras would violate the due
process rights of a party or would otherwise not be in the
interests of justice.
We, as Members of Congress, have our proceedings televised
on C-SPAN, for example, streamed on YouTube and on each
Committee website. In fact, this very Subcommittee hearing
today is being streamed right now.
Most of our official actions can be reviewed by anyone
including by judges. In my opinion, the same should be true of
our Federal Judiciary.
While all of our activities are recorded and preserved for
review by the public, Federal judges who judge our decisions,
largely do so in private and that is despite the fact that
nearly all of states, including my State of Ohio, allow cameras
in their courtrooms without incident or spectacle, although
there were lots of predictions early on of all of the terrible
things that would happen and, for the most part, they have not
happened.
As such, I think the Federal courts should be brought into
the modern world as well. An informed citizenry is essential to
our constitutional system of checks and balances and I think
the American people deserve an opportunity to see how our court
system works, just as they can proceedings before this body.
I would like to ask, I think, Justice McCormack--Madam
Chief Justice, I understand that for the period between April
1st and June 1st, trial courts in your State held over 35,000
meetings on Zoom, totaling more than 200,000 hours of hearing.
How has that worked for those proceedings and how have
courts in Michigan worked to address security concerns, for
example?
Judge McCormack. Thank you for the question and thank you
for your work on transparency in our branch.
I share your concerns. I believe that when the public sees
courts working, it builds confidence in what we do. Even if
they don't like the particular outcome, they will understand it
and respect it, and that is the whole ballgame.
In Michigan, our live streaming of thousands and thousands
of hours of trial court proceedings has gone extremely well. We
are collecting information from litigants and lawyers and
judges.
There are a number of judges who have been able to keep
almost current in their dockets as a result of the remote
technology platform. Litigants report really appreciating the
opportunities that the platform gives them to feel on equal
footing and they report feeling being treated with dignity and
respect, which we know underscores public trust in the outcomes
even when they are not their favored outcomes.
Lawyers are overwhelmingly happy with the efficiency it
provides. A lawyer can appear in courtrooms in faraway places
of a State all in one morning.
Mr. Chabot. All right. Thank you, Judge. I don't mean to
cut you off there but I have got about 20 seconds left.
Could I just go to the other witnesses real quickly and say
would you favor this type of legislation allowing the Federal
courts to have cameras there?
I see nodding by one.
Judge Fogel. Congressman, speaking in my personal capacity,
I would. I think trial judges are in a position to make a
discretionary determination as to whether it makes sense in a
particular case. I don't think they should be precluded from
doing it.
Mr. Chabot. Thank you.
Mr. Chair, could the other two weight in? Thank you.
If the other two would like to weigh in we would welcome
it.
Judge Campbell. Congressman, as you know, it is the policy
of the Judicial Conference not to broadcast proceedings from
trial courts, although Courts of Appeals do so and are
permitted to.
That has been the considered judgment of a very diverse
group of judges on the Judicial Conference for years and
remains the Conference policy at this time.
Mr. Chabot. Thank you.
Would the final witness like to--
Ms. Wasser. Absolutely, Congressman. We would welcome that
legislation. We specifically do mention it in our testimony.
In addition to your legislation to require cameras in the
Supreme Court, we would also advocate for the 21st Century
Courts Act, which is co-sponsored by the Chair, requiring the
live audio of the Supreme Court not only in oral arguments but
also in opinion readings as well, and also creating a live
audio archive for Federal Appellate proceedings, along with
H.R. 6642, the Court Access Amid the Pandemic Act, which would
require the oral arguments in Federal, Appellate, and District
courts made public.
We would also ask Congress to provide guidance and support
to the Judicial Conference to talk through a possible amendment
to that cameras in the courtroom policy to allow broadcast or
streaming in District courts.
Mr. Chabot. Thank you very much. It has been said, Mr.
Chair, that sunshine is the best disinfectant and I tend to
share that point of view.
Thank you for your indulgence, and I yield back.
Mr. Johnson of Georgia. I thank the gentleman.
With that, we will conclude today's hearing. Thank you to
the panelists for your appearance today.
Without objection, all Members will have five legislative
days to submit additional written questions for the witnesses
or additional materials for the record.
This hearing is adjourned.
[Whereupon, at 10:46 a.m., the Subcommittee was adjourned.]
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