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December 2010

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


111th Congress Ends

The 111th Congress ended in December. In its second session, Congress passed, and the President signed into law, legislation that improves court functions, influences federal caseloads, and changes sentencing for certain offenses. In its lame duck session following the November election, Congress did not pass bills creating new Article III and bankruptcy judgeships. This marks two decades since an omnibus Article III bill was last passed by Congress. New temporary bankruptcy judgeships were last authorized in 2005, although fewer were created than needed. They already have begun to lapse, causing a decline in the number of bankruptcy judgeships. Before 2005, new bankruptcy judgeships had not been authorized by Congress since 1992. The workload of the district and bankruptcy courts has increased significantly since then. Bankruptcy filings in particular are nearing record levels at the same time as bankruptcy judgeships are set to revert to 1992 numbers.

All unpassed bills introduced during this Congress, along with all judicial nominations, must now be reintroduced in the 112th Congress if they are to be considered again by either the House or the Senate next year.

Among the bills of interest to the Judiciary passed in the second session were:

The Fair Sentencing Act of 2010

Pub. L. No. 111-220, the Fair Sentencing Act of 2010, lowers crack cocaine sentences to reduce the disparity between crack and powder cocaine sentences, narrowing the ratio from 100:1 to 18:1. It also eliminates the mandatory minimum sentence for simple possession of crack cocaine, and directs the U.S. Sentencing Commission to amend the Sentencing Guidelines on the basis of certain aggravating and mitigating factors.

The Federal Judiciary Administrative Improvements Act of 2010

Pub. L. No. 111-174, the Federal Judiciary Administrative Improvements Act of 2010 contains several Judicial Conference-endorsed improvements to court operations and other provisions that address Judiciary needs. For example, the new law will:

  • resolve current law to allow senior judges who meet minimum workload requirements to participate in the selection of magistrate judges, as well as other court governance matters;
  • allow for the separate filing of the “statement of reasons” that judges issue upon sentencing, so as to better protect confidential information such as the identity of government informants.
  • clarify the scope of authority of federal pretrial services officers to supervise and assist juveniles awaiting delinquency disposition in federal court as an alternative to incarceration; and
  • apply an inflationary index to the threshold amount requiring approval by the chief judge of reimbursements for the cost of hiring expert witnesses and conducting investigations for indigent defendants.

The Tribal Law and Order Act of 2010

H.R. 725, the Tribal Law and Order Act of 2010, became Pub. L. No. 111-211 in the second session. It provides extensive grants, support, and legal reforms for reservations and calls for enhanced activity and cooperation by federal law enforcement agencies in Indian country. It is anticipated the Act will result in a significant increase in federal criminal prosecutions in Indian country.

Tribal governments, which are regulated by federal statutes, but not by the federal Constitution, have the power to design their own criminal laws and justice systems, applicable only to Indians. Individuals who are incarcerated by a tribe have a statutory right to habeas corpus in federal court. Prior federal law limited tribal governments to imposing a sentence of no more than one year incarceration per criminal count, and required that tribes allow defendants to hire a defense lawyer, but federal law did not previously require tribes to provide counsel for indigent defendants in any kind of case. The version of the bill enacted extends tribes’ sentencing power to a maximum of three years of incarceration per count, and expands a significant number of procedural and substantive protections for criminal defendants facing the longer sentences.