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August 2008

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This article is in the news archives --- for current news go to the Third Branch News.


Interview with Judge Julie E. Carnes

Judge Julie E. Carnes, a district court judge in the Northern District of Georgia, was appointed to the federal bench in 1992. She has been a member of the Judicial Conference Committee on Criminal Law since 2005, and has served as its chair since 2007.

Judge Julie E. Carnes, Northern District of Georgia

You participated in a National Sentencing Policy Institute held in Long Beach, California in June. What is the purpose of these meetings and who participates?

National Sentencing Policy Institutes are biennial meetings of federal judges, prosecutors, defense attorneys, and probation officers. These meetings feature panel discussions and presentations on current sentencing issues. The Criminal Law Committee works closely with the Federal Judicial Center (FJC), the U.S. Sentencing Commission, and the Bureau of Prisons (BOP) to develop the agenda, which this year included sessions on sentencing practices, post-Rita, Gall, and Kimbrough; retroactive application of the amended crack cocaine guideline; crime victims’ rights; and offender reentry and the Second Chance Act of 2007. The Institute also included a tour of the Federal Correctional Institution at Terminal Island, during which participants were able to meet with inmates and staff.

As to the method for determining who will be invited to an Institute, each circuit is allotted a number of invitations for judges in proportion to the number of cases sentenced in that circuit in the preceding year. In addition, one United States attorney, one probation officer, and one federal defender from each circuit are invited to attend. The Criminal Law Committee members work with the FJC in extending these invitations.

What was the Criminal Law Committee’s position on the retroactivity of the amended sentencing guideline dealing with crack cocaine?

The Judicial Conference has previously expressed its opposition to the existing disparity between crack and powder cocaine sentences and its support for a reduction of that difference. In a November 2, 2007, letter to the Sentencing Commission, the Criminal Law Committee expressed support for the retroactive application of the amended crack guideline. Judge Reggie Walton, a member of the Criminal Law Committee, subsequently testified at the Commission’s public hearing in support of the Committee’s recommendation that the amendment be made retroactive.

In December 2007, the Commission made the amendment retroactive, effective March 3, 2008. Did your Committee offer any guidance to district court judges?

We were aware that some districts had sentenced hundreds, and sometimes thousands, of defendants who were potentially subject to the retroactive guideline; many of these offenders would be entitled to immediate release if the reduction were granted. Thinking through and identifying the most efficient procedures to handle these cases was important. Accordingly, the Office of Probation and Pretrial Services (OPPS) at the Administrative Office, and the Criminal Law Committee, along with the chief probation officers of the Western District of North Carolina and the Eastern District of Missouri, planned two “summits” that were held in January in Charlotte, North Carolina and St. Louis, Missouri. Judges, probation officers, prosecutors, and federal defenders met to arrive at procedures that would work in their respective districts.

In addition, the Committee and the Commission introduced a new one-page order form (AO 247) that district courts could use in issuing sentencing modification orders in these cases. Designed to be less burdensome than the 24-page amended judgment form (AO 245C), this model order form captures the data needed by the Sentencing Commission.

Following the March 3, 2008, effective date for retroactive implementation of the guidelines amendment, how have probation officers fared in handling these numerous sentencing reduction requests?

Probation officers have done a remarkable job responding to the increased workload demands related to the crack sentencing modifications. Since the March 3 effective date, probation officers have completed more than 17,400 supplemental investigations. The AO has estimated that each full supplemental investigation takes approximately five hours to complete. That our officers have handled well and cheerfully such substantial additional duties speaks volumes about their dedication. Similarly, much credit for their efforts goes to judges in districts with large volumes of crack cases. Using data reported through July 7, 2008, the Commission reports that 9,769 cases have already been considered by the courts, with 7,513 sentencing reductions having been granted.

In March, the Judicial Conference agreed to seek legislation setting out expanded powers for probation officers who conduct searches. Why is this legislation needed and, if the legislation becomes law, what guidance will be provided to probation officers in the use of these new powers?

Since 1993, probation officers have been allowed to conduct searches of offenders under their supervision pursuant to model guidelines approved by the Judicial Conference. These guidelines indicate that searches by probation officers are disfavored, but may, in appropriate circumstances, be conducted with the consent of the offender or pursuant to conditions of release that permit such searches. The guidelines further indicate that an officer’s ability to search does not extend the law enforcement authority of the officer beyond those powers set out in 18 U.S.C. § 3606. Accordingly, the guidelines indicate that the officer is not permitted to restrain a disruptive third party who is present during a search and the officer must abandon a search if a third party refuses to cooperate or otherwise impedes the officer’s efforts.

A working group of probation and pretrial services officers has studied the issue of searches conducted by probation officers. This group has recommended to the Committee that officers be authorized to take measures for their own protection—such as protective sweeps or frisks of third parties—to the same degree that any other law enforcement officer would be permitted to take those actions when conducting a search. The proposed legislation would confer on probation officers equivalent authority. Probation staff are now studying the existing guidelines, and the Committee will ultimately determine whether a revision of the guidelines would be prudent.

Can you give us an update on the Probation and Pretrial Services Academy at the Federal Law Enforcement Training Center (FLETC), which in 2004 began offering training for probation and pretrial services officers at its campus in Charleston, South Carolina?

Through its partnership with FLETC, the Academy has been able to provide new officer training and advanced safety training to probation and pretrial services officers. The new officer academy, which runs for six weeks, prepares new officers to conduct investigations, write reports, and supervise defendants. The program also trains new officers in self-defense and the use of firearms, interviewing and testifying skills, and various IT programs, such as PACTS. By all accounts, the training programs offered at FLETC have been very helpful in developing the skills of our officers.

The Committee is grateful that Administrative Office Director James C. Duff recently agreed to increase the number of instructors at the academy. The availability of additional instructors will help to reduce the waiting period that had previously existed for the training program.

Congress recently passed the Second Chance Act. Will that legislation have any impact on federal offenders?

Most of the provisions of the Act benefit state and local governments by providing grants for programs offered to offenders reentering society upon their release from state prisons. There are a few provisions, however, that impact federal offenders. For example, the Act expands the amount of time that an inmate returning to the community may serve in a residential reentry center from 6 months to 12 months, and it requires the BOP to develop a pilot program for the early release of elderly, non-violent inmates.

One provision of the Act that was sought by the Judicial Conference, on the recommendation of the Committee, expands the authority of the Director of the AO to contract for various reentry services. Previously, the contracting authority had been limited to providing services to offenders who were mentally ill or who were alcohol or substance abusers. Now, contract services can be made available to any offender in need of emergency housing, training, and other services designed to protect the public and promote the successful reentry of the offender into the community. At this juncture, however, Congress has provided no funding for these programs and, therefore, any use of this new authority will require an expenditure from existing funds. The AO has begun working with probation staff to develop guidance on the use of this new authority.

2004 was a tough budget year for the Judiciary, and federal probation offices were among the hardest hit when cutbacks were necessary in personnel. How have they coped with this reduced staffing?

In the first quarter of fiscal year 2004, there were 8,138 probation and pretrial services staff on board. As a result of the reduced funding, the staffing level had dropped to 7,546 by the 2nd quarter in FY 2005. Given the ever-increasing workload, such a substantial reduction in staffing was unprecedented, but the probation and pretrial service system was able to adapt by prioritizing workload. Because of the “can-do” attitude of our officers, many judges were likely unaware of the staffing pressures under which they were operating.

Thanks to successful advocacy by the Conference’s Budget Committee, funding has increased in subsequent years, and there are now 8,159 on-board staff.

What issues or objectives do you see in the future for the Criminal Law Committee?

This is a very interesting time to be working on criminal justice issues and, in particular, on issues concerning the supervision of offenders. Our probation officers are, in part, law enforcement officers who have a responsibility to promote the public safety through their vigilant oversight of the conduct of supervised offenders. These officers also have a duty not conferred on traditional law enforcement officers, however, “to aid” an offender in order “to bring about improvement in his conduct and condition.” 18 U.S.C. § 3603(3). The Committee, OPPS, and our probation officers are spending a great deal of time studying the most effective ways to accomplish the latter, which will, in turn, better promote the former.

While the budget shortfall of 2004 created some difficult times, that experience forced the Committee and our probation and pretrial services officers to commit to becoming an outcome-based organization and to identify the most effective practices available to accomplish our work. The Committee and OPPS are presently focused on that endeavor, as we study and develop the use of “evidence-based practices,” which are those techniques that have been shown, empirically, to most improve an offender’s chance for success. We have identified some specific programs that are now being used in pilot districts. We hope to be able to measure the effectiveness of specific policies and procedures in promoting key outcomes, such as a reduction in recidivism.