At its September 2003 meeting, the Judicial Conference voted to support repeal of a new law that severely limits the ability of trial judges to depart downward from Sentencing Guidelines and requires reports to Congress on any federal judge who does.

The Conference also agreed to expand remote public access to electronic court documents by allowing access to criminal case files. The new policy will be implemented as soon as operational guidance to all federal courts can be developed and approved.

Sentencing

Because the Judiciary and the U.S. Sentencing Commission (USSC) were not consulted prior to enactment, the Conference voted to support repeal of the following provisions of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act, known as the PROTECT Act:

• The requirement that directs the USSC to make available to the House and Senate Judiciary Committees all underlying documents and records it receives from the courts, without established standards on how these sensitive and confidential documents will be handled and protected from inappropriate disclosure;
• The requirement that the USSC release data files containing judge-specific information to the Attorney General;
• The requirement that the Department of Justice submit judge-specific sentencing guideline departure information to the House and Senate Judiciary Committees;
• The requirement that the USSC promulgate guidelines and policy statements to limit departures;
• The requirement that the USSC promulgate a policy statement limiting the authority of the courts and U.S. Attorneys' Offices to develop and implement early disposition programs; and
• The amendment of 28 U.S.C. §991(a) to limit the number of judges who may be members of the Commission.

In addition, some provisions of the Act are contrary to previous positions taken by the Judicial Conference, such as the alteration of the standard of review of departures.

The PROTECT Act, fast-moving legislation that passed both houses of Congress and was signed by the President in just over 30 days, provides protection for children by expanding to national coverage a rapid-response system to help find kidnapped children. When the legislation was considered on the House floor, an amendment was added to limit judges' sentencing flexibility.

The Judiciary was not asked for its views on this amendment, nor was it advised of its consideration. After the PROTECT Act passed the House and the sentencing provisions came to the attention of the Judiciary, the Judicial Conference, the Chief Justice, and the USSC expressed serious concerns. A somewhat narrower bill was signed into law on April 30, 2003. The Judicial Use of Discretion to Guarantee Equity in Sentencing Act of 2003, known as the JUDGES Act, is pending in the Senate as S.1086 and in the House as H.R. 2213. These companion bills would repeal many of the sentencing provisions in the PROTECT Act.

Case Files

The Conference approved the continuation of a pilot project allowing courts to provide remote public access to electronic criminal case file documents, with continued monitoring by the Federal Judicial Center, until the Conference approves specific guidance. The Conference Committees on Court Administration and Case Management, Criminal Law, and Defender Services together will draft appropriate implementation guidance for the courts. The pilot program will continue access during the implementation period. For more on the pilot program and FJC study, see page 6.

Once implemented, the policy requires that certain personal identifiers should be partially redacted by the filer of the document, whether filing is electronic or in paper form. For example, Social Security and financial account numbers should be reported with the last four digits only, and the names of minor children should be listed only by their initials. This is the policy currently in effect for civil cases.

Remote access to federal court files has been made possible by the Case Management/Electronic Case Files (CM/ECF) system, which is in the process of being implemented throughout the federal courts. As of September 1, 2003, 25 district courts and 60 bankruptcy courts are using the system. More than 10 million cases are on the CM/ECF system, and more than 40,000 attorneys and others have filed documents over the Internet. Electronic access to these documents is available through the Public Access to Court Electronic Records (PACER) program.

In other action, the Conference

• Approved inflationary and other increases to miscellaneous fees. For a complete listing of the newly approved fees, which will become effective November 1, 2003, visit www.uscourts.gov/courtfee.html.
• Adopted a policy that courts making electronic documents remotely available to the public, whether documents are filed electronically or converted to electronic form, shall make electronic transcripts of proceedings remotely available to the public if such transcripts are otherwise prepared. Within five business days of the filing of the official transcript, parties may notify the court of the intent to redact personal data identifiers. Implementation of the policy was deferred until the March 2004 Judicial Conference session. At that time the Conference will consider a report of the Judicial Resources Committee on the impact of the policy on court reporter compensation. The Conference also delegated to the Committee on Court Administration and Case Management the authority to develop and issue guidance to the courts upon implementation of the policy.
• Approved amendments to the Electronic Public Access Fee schedule, extending the current 30-page fee cap for documents to cover docket sheets and case-specific reports, but not transcripts of court proceedings.
• Agreed to seek legislation to permit emergency special court sessions outside the district or circuit in which a court is located. The need for this legislation became apparent following the events of September 11, 2001, when court operations were impacted, particularly in New York City.
• Declared courthouse space emergencies in Los Angeles, California; El Paso, Texas; San Diego, California; and Las Cruces, New Mexico. The Conference's Security and Facilities Committee said that intolerable security and operational problems in the three courts along the southwest border and in Los Angeles, justify the Judicial Conference designation of these locations as a space emergency.

The court in Los Angeles, where finding adequate housing has become a priority, currently occupies three buildings, and leases space in a fourth. Security is an issue in the three other courthouses. The El Paso courthouse scored 27 out of a possible 100 points in overall security—facilities scoring below 80 points are considered to have serious security deficiencies. The San Diego courthouse, scoring 48 out of a possible 100, circulates prisoners and the public through the same corridors, and must find housing for eight new district judges. The Las Cruces courthouse also faces inadequate space and a lack of security. The district has experienced unprecedented caseload growth, which will continue as law enforcement agencies increasingly focus on border initiatives.