October 2006

 

Conference Moves to Enhance Judges' Accountability, Ethical Compliance

The Judicial Conference approved at its biannual meeting in Washington, DC, last month, two policies aimed at aiding and enhancing judges’ compliance with established ethical obligations.

The Conference voted to require all federal courts to use conflict-checking computer software to identify cases in which judges may have a financial conflict of interest and should divest or disqualify themselves. It also approved a new policy requiring greater disclosure by both those who provide privately funded educational programs for judges and the judges who attend such programs.

In recommending the mandatory conflict-checking policy, the Conference’s Committee on Codes of Conduct said it seeks to reassure the public of the Judiciary’s commitment to maintaining the highest standards of ethical conduct. According to the Committee report, “A fair reading of the Judiciary’s record shows that federal judges take their recusal obligations very seriously, and this commitment will be underscored by adoption of a mandatory automated conflict screening policy.” The Committee further stated, “While automated screening is not foolproof, it is an efficient and effective supplement to a judicial officer’s individualized review.”

Automated conflict screening is available for district and bankruptcy courts through the Case Management/Electronic Case Files system. A similar mechanism is available for the courts of appeals in the Appellate Information Management System (AIMS) and will be provided in the appellate version of CM/ECF, which is in the process of being installed.

The second new Conference policy requires non-governmental educational program providers (other than a state or local bar association, a subject-matter bar association, a judicial association, the Judicial Division of the American Bar Association, or the National Judicial College) to disclose certain information about their programs and their sources of funding.

Covered educational program providers that reimburse or pay judges directly for more than the threshold amount in expenses for attending a program as speakers, panelists, or students will now be required to disclose publicly all sources of support for the seminar, as well as information about the dates and location of the program, the topics to be covered, and the names of anticipated speakers. Initially, the reporting threshold will be any reimbursement exceeding $305, which is the threshold for reporting reimbursements on financial disclosure statements. Judges are barred from accepting such reimbursements unless they first ascertain that the program providers have made the required disclosures. Judges also will be required to report their attendance within 30 days of the conclusion of the program. Both the seminar provider and judge-specific disclosures will be publicly available on the Internet.

In recommending the change, the Conference Committee on the Judicial Branch said its overarching objective was “greater transparency and accountability.” At the same time, the Committee noted the importance of continuing education of judges in law, science, history, economics, sociology, philosophy, and other disciplines. It added: “In view of the compelling need for and many benefits of continuing education, the Committee believes that neither the Judicial Conference nor any other entity should seek to limit judges’ access to knowledge or censor their right to increase their knowledge.”

Senator Patrick Leahy (D-VT), ranking minority member on the Senate Judiciary Committee, released a statement in reaction to the new policies, saying the Conference had made “great strides toward preserving the public’s confidence in our Judiciary.”

In other recommendations, the Conference agreed to:

• set an annual cap on rent for all future rent requirements at an average annual growth rate of 4.9 percent for fiscal years 2009 through 2016. The cap amount is subject to reconsideration when the FY 2009 budget is formulated. Rent growth has been a problem area in the Judiciary’s budget and, in addition to resolving rent calculation issues with the General Services Administration, the adoption of a rent cap reflects the Judiciary’s commitment to exercising discipline in its budget needs;
• oppose the existing sentencing difference between crack and powder cocaine sentences and support the reduction of that difference. Under current law, 100 times as much powder cocaine as crack cocaine is needed to trigger the same five-year and ten-year mandatory minimum penalties. The U.S. Sentencing Commission has unanimously concluded that congressional objectives can be achieved more effectively by decreasing the 100-to-1 drug quantity ratio;
• seek amendments to existing statutes establishing penalties for failure to appear in response to summonses relating to jury service, to increase the maximum amount of the fine from $100 to $5,000 and to offer an option for community service;
• seek restoration of the statutory requirement that at least three federal judges be included among the voting members of the U.S. Sentencing Commission; and
• recommend to the U.S. Sentencing Commission that it establish a Crime Victims Rights Advisory Group, analogous in structure to the existing Practitioners Advisory Group and the Probation Officers Advisory Group.

The Conference also agreed to support:

• an amendment to 18 U.S.C. section 3583(b) that would give the court authority to impose a longer term of supervised release based on specific findings if the unusual circumstances of a case indicate that a longer term is needed to rehabilitate the offender, protect society, and otherwise serve the interest of justice; and
• legislation that would establish “not profiting from a crime” as a mandatory condition of probation and supervised release.