Picture unpaid FBI agents taking cases lacking key evidence to unpaid prosecutors, who present them to grand juries working months without pay and try them against unpaid federal defenders worried about how to cover expenses out of pocket and keep up their law-school loan payments.
With all sides depending on witnesses, court reporters, and others who may or may not show up.
And that’s just with the cases that already exist, saying nothing of those that can’t get made in the first place.
This dystopian picture is creeping into focus with the federal court system due to run out of money for normal operations on Jan. 18, as the partial government shutdown drags on over President Donald Trump’s desired border wall.
More than 67,000 criminal cases were filed in U.S. District Courts in the year that ended June 30, 2018, according to the most recent data available from the Administrative Office of the U.S. Courts. That’s about 9,000 more cases than in the previous 12 months. The nation’s 12 federal appeals courts were flooded with a collective 46,462 filings during the year that ended Sept. 30, 2018.
It’s a system that relies not only on prosecutors, defense lawyers, and federal investigators to do the everyday work of criminal justice, but contractors who aren’t federal employees and even citizen jurors. Come Jan. 18, unless some deal is struck before then to reopen the government, more federal employees either won’t get paid or won’t be able to work.
“If you’re not having investigators doing their regular work, they are both not going to find people violating the law, and they are not going to be able to actually indict or prosecute those people,” Kristine Lucius told Bloomberg Law.
She’s the executive vice president for policy at The Leadership Conference on Civil and Human Rights, and was the top policy and legal adviser for then-Chairman Patrick Leahy (D-Vt.) on the Senate Judiciary Committee. “I think you’re going to see a cascading effect of the shutdown that will impact public safety and the ability of folks accused of crimes to receive due process.”
JaneAnne Murray, a former assistant federal public defender, likens it to “watching a frog boil.’'
“There’s only so much people will take until they’re done,” said Murray, who’s now a professor at the University of Minnesota Law School.
The Justice Department failed to respond to a request for comment submitted to its media inquiries website. “Due to the lapse in appropriations, Department of Justice websites will not be regularly updated,” it says.
‘Almost Invisible Slowdowns’
To be sure, the Justice Department deems federal prosecutors “essential” employees who must work—without pay—and the courts prioritize criminal matters. Under the DOJ’s fiscal 2019 contingency plan, 80 percent of criminal division staff—more than 500 attorneys and about 250 other employees—is excepted from furlough.
Lawrence J. Leiser, a federal prosecutor in Virginia who is president of the National Association of Assistant United States Attorneys, likens prosecutors to doctors confronted by medical emergencies. “What are you going to do? Not treat the patient?” he asked rhetorically.
Still if the shutdown continues past Jan. 18, the judiciary branch will be required to reduce operations significantly, according to an Administrative Office of the Courts internal memorandum issued Jan. 11.
Courts and federal public defender offices should prepare to reduce their operations, the memorandum says. While courts can continue to call and empanel jurors, jurors won’t be paid. Criminal Justice Act panel attorney, expert and service provider payments will continue to be suspended until Congress provides funding, it says.
“Of course bad things will happen, because the courts aren’t there by accident, they’re there to fulfill government services,” Rep. Bobby Scott (D-Va.) said.
Murray, the ex-federal defender, said she can foresee “almost invisible slowdowns” among court personnel expected to work for free.
Such slowdowns could arise “whether it’s through the absence of critical people who aren’t deemed essential, whether it’s through people taking sick leave because they are so frustrated, or people who are just actively slowing down because they are upset and despairing at their financial situation,” she said.
“If you live paycheck-to-paycheck and you’re a federal defender making $70,000 a year, or a social worker or investigator at a federal defenders office making $40,000 a year, it’s really an imposition on these lawyers and employees,” she said. The question becomes: “does that impact your commitment to your work?”
No Money, No Drug Buys
If pre-trial officers are being scaled back, fewer people may get detained before trial or are allowed to be released and monitored, Lucius said.
Former federal prosecutor Harry Sandick, now a partner at Patterson Belknap Webb & Tyler LLP in New York, said there’s the potential for some cases to get dismissed if defendants can argue they didn’t get a speedy trial guaranteed under the Constitution. A government shutdown might not be a basis for delaying speedy trial time, he said.
At the FBI, almost 5,000 employees are currently furloughed, Special Agent Thomas O’Connor said during a Jan. 10 conference call to reporters, the day before agents and other federal employees across the country missed their first paychecks as a result of the shutdown. They include agents, intelligence analysts, attorneys, and technical and professional staff. That means “critical functions that support field operations, like the FBI lab in Quantico, and surveillance technical support, are working with reduced staff.”
Agents often have to spend money in undercover and drug trafficking operations, and to work with informants. “Things such as purchasing narcotics” and having “surveillance specialists” are “clearly being hurt,” said O’Connor, who is president of an FBI association with over 14,000 members.
“Missed paychecks could jeopardize the security clearances required for special agents to do their work,” O’Connor said.
Chief Judge Jose L. Linares of the U.S. District Court of the District of New Jersey raised the issue of not being able to pay either petit or grand jurors, the latter of whom can be called to serve for well over a year.
A lack of funds “may create some hardships, perhaps, which may affect jury selection in criminal cases,” Linares told Bloomberg Law.
“If we’re going to expect people to serve on juries with only the promise to pay them in the future, that’s going to harm a lot of low-income people who can’t afford to be at work or who can’t afford to serve if they are not going to be paid,” Lucius said.
For court reporters and expert witnesses, Murray asked, “What’s the incentive to sit down and crank out that transcript fast if you’re not going to be paid for it? Are we going to have a slowdown with transcripts not coming in, experts not willing to do the work, experts not willing to write that report for you that slows things down? And the net effect for that is clients are going to sit in detention centers longer.”
Sandick also pointed to potential financial issues with outside vendors. “In some courthouses the court reporters are not U.S. government employees, they’re independent contractors who get paid by the courts,” he said.
Dusting Off Pandemic Plans
The U.S. District Court for the Southern District of New York may not be able to use its building if the shutdown continues until March, because the General Services Administration’s contract with those who support courthouse functions is paid up only through February.
The court is dusting off a plan first devised for the bird flu pandemic, Ed Friedland, the district executive for SDNY, told Bloomberg Law. It consists of judges working from home and conducting presentments after arrest via video. Trial proceedings would be held in state courts or other venues.
Criminal and civil cases under Article 3 will continue to go forward after Jan. 18, Friedland said.
DOJ attorneys forced to work without pay will also have to cover their travel expenses charged on department-issued credit cards, with repayment coming at a later date, former department officials told Bloomberg Law.
“Travel is being messed up and reimbursements are becoming a problem,” said Kevin Muhlendorf, a partner at Wiley Rein LLP and former assistant chief in the fraud section of the DOJ’s criminal division. Trial attorneys in some cases “are not getting paid and they’re not getting reimbursed. I would think that would make it much harder to do the job.”
Immigration Cases Slowed
The shutdown over the wall is already affecting cases.
SDNY has already cut back the hours for some criminal proceedings, stopping at 3 p.m. during the weekday and eliminating Saturday operations, which may slightly delay presentment after arrest.
There’s been a 30 percent decline in filings since the shutdown in the Tucson, Arizona, district along the Mexican border that hears illegal-entry matters, said Brian Karth, the district court executive.
“I have 700 employees worried about how to make ends meet,” said Karth, who is also president of the federal court clerks association. These employees include interpreters, probation officers, pretrial officers, courtroom deputies, and court reporters.
Though the courts are prioritizing criminal matters, important civil matters that can overlap with prosecutions—like civil asset forfeiture—could also be affected by the shutdown.
It’s a practice that has been criticized on a bipartisan basis, where “they seize your property or your money, and then you have to fight to get it back,” Lucius said. “It’s hard for me to see that, if they’re delaying all civil cases, that those rights wouldn’t be impacted. We’ve seen some really terrible abuses of civil asset forfeitures where someone is traveling with a specific amount of cash on hand to go buy something and the money gets seized and then they have to fight for months and months to get it back. It is a real area of concern.”
And for some people, functioning of the courts is a matter of life and death.
Shortly before the shutdown, Trump signed a bipartisan criminal-justice reform bill that among other things made it easier for terminally-ill prison inmates to win their release. That process depends on prompt action in the court system.
“The First Step Act just got passed, which now says that if you’re 60—instead of 65—and if you have extraordinary and compelling reasons, the Bureau of Prisons has to respond to that compassionate release request within 30 days or you get to go to the courts to say, ‘Hey, court, release me,’” Murray said.
“I’m guessing a lot of people involved in that compassionate release process—all of the very many federal employees who have to weigh in on that: corrections officers, psychologists, social workers, case workers—these compassionate release applications are going to get slowed down,” Murray said.
“We’re definitely concerned about” compassionate release, Kevin Ring told Bloomberg Law. He’s president of Families Against Mandatory Minimums. “If the courts are not equipped to handle those requests, that’s going to be a problem,” he said.
“Compassionate release, when it happens, has been in the last six months” of a person’s life, Murray said. “And often it’s happening weeks before the person dies.’'
Criminal law professor Jeffrey Bellin said he’s confident that officials, for the short term, should be able to triage to ensure that the most important, typically criminal cases remain unaffected.
“But every day the shutdown continues increases the pressure on an already-overburdened system,” Bellin, a William & Mary Law School professor, said. “As the pressure builds, more and more problems will arise—many of which will be hard to foresee.”
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