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."

By allowing the sequester to preclude these types of services, by depriving federal judges of worthy options, Congress and the White House are making it more likely that offenders like the one Judge Rosen describes will cause trouble down the road. "What my fear is that if we don't have the tools available to intensively supervise folks pretrial and after they come out, on supervised released, invariably we are going to expose the community to danger," the judge said. "One of these guys is going to have an episode and engage in dangerous behavior. Hopefully not."

So why not just imprison this offender and be done with it? It's just not that easy-- not with the costs of incarceration, not with the Obama Administration's push to reduce the number of incarcerated federal prisoners. Judge Rosen explains:

In many cases, I think judges would prefer a community-based option. I'm not talking about serious and violent offenders. I am talking about people who would be better served, the community would be better served, by a community-based option. First of all it's much more cost-effective. For example, to supervise an offender in the community costs about $3,400 a year, depending upon the level of supervision. Incarceration, I think the numbers on incarceration range from $21,000 to $34,000, again depending upon the level of supervision that's needed.

If you are looking at it only on a dollars and cents level it is a lot less expensive to supervise them in the community than it is to incarcerate them. But much more important than the dollars and cents level: If they can be supervised in the community, and integrated into the community,  I'm talking now about after they've completed their sentence of incarceration and come back, there is a much greater likelihood that they are going to be able to integrate back into the community successfully.

And in terms of pretrial, it's always better to have them in the community, with their families, hopefully working, prior to trial, so that they can continue to have a stable life. It's much more expensive to incarcerate them and much less helpful to them and to their lawyers in preparing a defense.

So the sequester could be making our streets less safe. And it's utterly failing as a budget measure because it is resulting in higher costs. But perhaps the worst thing about it is that by its nature the sequester is quietly creating perverse incentives for judges. Again, Judge Rosen explains:

The Attorney General has been very helpful in the debate on a number of levels. Advocating for increased funding for the [Federal Defenders Offices]. Advocating for alternatives to incarceration. But the truth of the matter is that if we don't have the budget for it we can't do it. It would be more helpful, quite candidly, if the Administration would support our request for supplemental funding instead of writing op-ed pieces.

What has to be understood here is that to the extent we are doing things like re-entry program, community-based treatment, community-based solutions, those come out of our budget, the judiciary budget. And, you know, we welcome that because we just think that they are better than incarceration for many folks. But on the other hand if they are incarcerated it's not in the judiciary's budget.

That's a terrible way to think about it. It's not the way I think about it as a judge. But on a policy level, if we are going these alternatives to incarceration then two things have to happen. They have to be funded. And the lawyers to advocate for those have to be funded. Because both of those things are on the judiciary's budget.

These are not the words of a criminal defense attorney or a civil libertarian or a partisan reformer. They are not the words of an ideologue. They are the words of a jurist at the very core of the third branch of government; the words of a man who has devoted the past 25 years to serving the public good by interpreting the law. By ignoring these words, by continuing to allow the sequester to neuter the judicial function, by rejecting the judiciary's request for supplemental funding, Congress and the White House are waging war on the judicial branch. And the victims of that war, ultimately, are you and me.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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