Another Federal Judge Speaks Out Against Sequester

"It would be more helpful, quite candidly, if the Administration would support our request for supplemental funding instead of writing op-ed pieces."
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Chief U.S. District Judge Gerald E. Rosen (Kathleen Galligan/Detroit Free Press)

"We have three branches of government," Sen. Charles Schumer (D-N.Y) said sternly as he looked into a camera on CNN in January 2011 during the depths of that season's budget fight. "We have a House. We have a Senate. And we have a President." I can't think of a better quote from a more prolific Washington voice to illustrate how Congress and the White House have come this year to permit the sequester to undermine the ability of the nation's federal judges to wisely implement our rule of law. 

In July, I quoted at length, here at The Atlantic, three federal trial judges, all Republican appointees, who offered numerous concrete examples of the ways in which the sequester is hampering their ability to timely resolve cases and controversies. Now, from yet another Republican appointee, a judge who is in fact a member of the Federalist Society, comes an even more specific lament about the way in which  Washington has failed to meet its constitutional obligations to the judicial branch.

The story below, like so many other government stories, is one of missed opportunities and waste and unintended consequences. Chief U.S. District Judge Gerald E. Rosen, an appointee of George H.W. Bush, has served for decades on the bench in Michigan. What he is saying here-- and what Congress and the White House and the Justice Department are refusing to hear here-- is that by cutting costs in the federal judicial budget the sequester actually is increasing those costs for taxpayers while potentially making us less safe. You pay more to be less safe: How's that for a campaign slogan?

By reducing the budgets of federal public defenders, for example, Congress and the White House are forcing judges to grant indigent defendants the use of more expensive private defense attorneys under the Criminal Justice Act. And by starving judicial budgets for pretrial and probation services, Congress and the White House are making it more likely that offenders will re-offend and thus be returned to prison, where they impose substantially higher costs to society than they would if they were subject to community supervision. Even by Washington's operating standards, this is just plain nuts.

"I had a case about a month ago," Judge Rosen told me via telephone on Wednesday as a way of illustrating his concerns about the sequester's impact upon the judiciary's budget. "This was an offender who had violated his supervised release. I didn't particularly want to incarcerate him. I thought that he needed some in-patient drug treatment." The judge figured this man needed perhaps six months of such "community-based" treatment at a taxpayer cost far lower than the cost of incarcerating him for that period. Judge Rosen continued:

He had tested positive and was slipping into risky behavior. As you probably understand, all of these things that we do, whether it's random drug-testing , mental health treatment, drug treatment, sex offender treatment, all of these things we use as trip wires.

We don't "violate" them [arrest people on parole or probation violations] because they are doing drugs or are bad people, We "violate" them because they lapsing back into dangerous or risky behavior which is an indicia that they going to be back into the same kind of conduct, probably, that brought them to the court in the first place. So for us not to be able to rigorously and intensively supervise them with these kinds of tools, including intensive visits by our pretrial or probation officers, we're not able to supervise them as thoroughly and adequately as we need to. 

So in this case this fellow had been violating for about six months, by testing positive, and we put him on all sorts of monitor systems, trying to monitor, trying to get him to stop hanging around people who were doing drugs, and doing drugs, and finally we "violated" him and brought him in and we could only put him in the halfway house for treatment for a week.

A man who needed six months or so of treatment could only get  a week's worth. How do you think this story is likely to end? "I certainly was made aware by the probation officer that we only had limited funds available [due to the sequester] and therefore limited treatment opportunities," Judge Rosen said. "More than limiting my discretion it limits my options because this fellow was a danger to himself and to the community but yet I didn't want to incarcerate him. I thought that there was a good chance that if he could get the kind of treatment he needed he would succeed in the community."

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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