In 2019, DC Council Chair Phil Mendelson (D), Ward 6 Councilmember Charles Allen (D) and Congresswoman Eleanor Holmes Norton (D) urged the US Senate to fill the District’s Superior Court and Court of Appeals’ judicial vacancies in an expeditious manner. These vacancies, wrote Allen and Mendelson in a joint letter, adversely impacted residents’ rights and public safety. As a result, “there has been a growing backlog of cases facing both courts,” wrote Congresswoman Norton in a separate missive.
They wrote the letters because the matter was outside of their control. The US President nominates judges serving on the DC Superior Court and Court of Appeals based on recommendations from a local commission. The US Senate, a body lacking District of Columbia voting representation, confirms the nominees.
A year later, a pandemic hit.
As in jurisdictions across the country, the public health emergency stalled court operations. Juries were suspended and the number of plea deals decreased. A year later, jury trials have not yet resumed, and when they do—on April 5 for criminal cases and in May for civil cases, according to the DC Courts—it will be on a limited basis. The DC Superior Court and the US Attorney’s Office for the District of Columbia (USAO-DC), which prosecutes local felonies and misdemeanors, now face the prospect of processing both current cases and clearing the ones delayed by the COVID-19 pandemic.
But unlike other local courts, DC’s is partly federal.
The number of defendants under the supervision of the Pretrial Services Agency of DC (PSA) increased as public health measures taken by the courts in response to the pandemic slowed the court system. The average number of days a defendant is supervised by the agency increased drastically, from 92 to 190 days, as of mid-February, according to PSA. A federal agency funded through the congressional budget process, PSA’s current budget is not yet reflective of pandemic conditions.
The vacancy rate on the Superior Court and Court of Appeals’ benches, currently hovering around 20 percent, threatens to complicate the court’s ability to make their way through the backlog of cases once courts resume normal operations, warn stakeholders. To fill these vacancies, the city relies on the federal government: The President and the US Senate.
“If we’re going to have to dig our way out of a pretty substantial backlog, it’s going to require making sure that our Court is able to operate at full capacity,” Councilman Allen told Capital Community News. Allen chairs the Council’s Committee on Judiciary and Public Safety.
This article is the second in a series focused on the impact of the COVID pandemic on the semi-federal system of justice in the District of Columbia. The series is funded by SpotlightDC.org and supported by DC Witness. This installment examines the complications posed by the federal role in the appointment of DC Superior Court and Court of Appeals judges and budgeting for PSA.
How We Got Here
“The [District’s justice] system that we have I think is probably the last one anyone would ever design as a high functioning system,” said Allen, in terms of “jurisdictional accountability.”
The DC Superior Court and the DC Court of Appeals, the city’s local courts, were established by Congress in 1970. The 1973 Home Rule Act established the city council but limited its control over the composition and jurisdiction of the city’s courts.
The 1997 Revitalization Act tweaked DC’s justice system once again. The federal government stopped its annual payment to the city in return for assuming the District’s debts. It also took over custody of people serving DC Code offenses in its Bureau of Prisons (BOP), closing the Lorton Correctional Complex. The Act also awarded the federal government responsibility for local pretrial supervision, probation, and parole through two federal agencies, PSA and The Court Services and Offender Supervision Agency (CSOSA). Lastly, the federal government took over the funding of the city’s local courts.
The Courts’ judges are appointed by the US President based on recommendations submitted by the DC Judicial Nomination Commission and confirmed by the US Senate.
“The District of Columbia is more intertwined with the federal government with respect to its justice system than any other jurisdiction in the country,” said Jon Bouker, a partner at Arent Fox. Bouker is on the board of the DC Appleseed Center for Law and Justice and part of the Mayor’s legal advisory team for DC Statehood. He has been a chair of DC Vote and a member of Congresswoman Norton’s office.
Beyond the courts and BOP, the USAO-DC, a federal agency, prosecutes all adult felonies and misdemeanors. PSA, which supervises defendants released pretrial, nestles as an independent entity under the larger umbrella of CSOSA, a second federal agency responsible for overseeing people on parole and probation. In contrast, the Department of Corrections, which operates DC Jail, and the Metropolitan Police Department are District agencies.
The system of justice in DC “creates huge barriers without a pandemic,” said Allen. “Certainly, with a pandemic, it’s even more complicated and more difficult to navigate.”
An Incomplete Bench
At the time of Allen and Mendelson’s letter in 2019, there were 11 vacancies in DC’s Superior Court and two in the Court of Appeals. In 2019, appointments picked up and a number of seats were filled. However, 2020 saw zero appointments. Today, there are 12 vacancies in the Superior Court and two in the Court of Appeals.
The “failure to confirm our judges” is a “chronic problem,” according to Congresswoman Norton, “a systemic problem,” that has “been worsened by the pandemic.”
“We’ve had vacancies at the Superior Court for a long time,” said Allen. “That does impact caseload.”
The vacancies “definitely [cause] a strain on the courthouse in general and [make] it harder to spread the backlog out to additional judges who might be willing to assist,” stated Attorney Julie Swaney, who practices in the Superior Court.
The court system is not processing cases at its normal rate. In 2019, 6152 defendants plead guilty. In 2020, 1822 did, less than a third of the year before, according to the DC Courts. In 2020, 66 percent (10,163) of the number of cases in 2019 (15,516) were filed. While the number of felony filings decreased only slightly, 41 percent fewer misdemeanors were filed. Note, the drop in the number of pleas is proportionally greater than the fall in cases filed.
The backlog in DC’s judicial system, said Legal Director of the ACLU of the District of Columbia Scott Michelman, is “a significant problem beyond our control.” The local courts are “notoriously slow,” he added, noting that the pandemic “further slowed down” the system.
Allen hopes the city will receive from the new administration the attention needed to fill all the vacancies expeditiously with “quality people” chosen by the local commission so the Courts can “operate at full capacity.”
“That’s going to be an important part of the game of catch up,” one that will be undertaken by the courts for the remainder of 2021 and very likely into 2022, said Allen.
As to whether vacancies make clearing the backlog in the Superior Court more difficult, “there’s no question about it,” Attorney Chris Gowen said. It’s a busy courthouse in a densely populated city with high crime rates, added Gowen.
“There’s just not enough judges right now to cover all the work,” Gowen told CCN.
“From the lawyer’s perspective, it’s clear that we’re understaffed right now,” Gowen added.
Asked whether judicial vacancies impact the Court’s current or future operations, the DC Courts did not respond.
DC’s vacancies are at the mercy of a federal congress residents do not elect. In most localities, state governments typically fill vacancies through appointment or election, according to the Brennan Center for Justice, a law and public policy institute.
Take New York City for example. Judges in the city’s criminal court are appointed by the mayor, an elected official. This is to say, city residents have an indirect say over who adjudicates their legal matters. Matters in the state Court of Appeals are decided by judges appointed by an elected governor with the advice and consent of the State Senate.
In Maryland where judges are elected, a case backlog is something candidates run on, Gowen pointed out.
“Confirming DC judges does not get priority in the federal system, whether we’re talking a Democratic congress or a Republican congress,” said Congresswoman Norton. “Who gets priority there are federal judges.” With the new presidential administration, though, “we will have a heck of a better chance of focusing on DC judges.”
Notably, the judicial vacancy rate doesn’t tell the whole story. In addition to the 62-person Superior Court bench, DC also has senior (‘retired’) and magistrate judges who can hear cases.
Still, the city’s courts have expressed feeling the strain of vacancies in recent years. In 2015, then Chief Judge Eric T. Washington of the DC Court of Appeals and Judge Frederick Weisberg of the Superior Court, wrote about the “adverse impact that judicial vacancies are having on the Court and residents of the District of Columbia” in a letter about six vacancies in the Superior Court, according to Roll Call.
In 2019, Court of Appeals Chief Judge Anna Blackburne-Rigsby said that the vacancies were “slowing down the wheels of justice,” WAMU reported. Then Superior Court Chief Judge Robert Morin expressed particular concern for the civil division. While 250 was the preferred caseload, some judges had close to 400 cases. “It’s that increase of caseload, it’s hard to translate how difficult that is for the court to handle,” Morin told WAMU.
“I’d like to address the backlog of cases that has been building up,” said DC Superior Court Chief Judge Anita Josey-Herring in an interview with the publication D.C. Bar, just before she assumed the post.
In a Feb. 11 performance oversight hearing of the Committee on the Judiciary and Public Safety, stakeholders discussed these vacancies. President Joe Biden (D) had withdrawn pending nominees, according to Emmet Sullivan, chairperson of the Judicial Nomination Commission, not irregular during a change in administration.
With vacancies up in the air, the pandemic has increased the stakes for getting these seats filled.
A Federal Budget
In Feb. 2020, PSA made their 2021 budget request. Weeks later, the city announced its first presumptive case of Covid-19.
As the independent federal agency charged with supervising District pretrial defendants, PSA participates in the federal budget process. First, they submit their request to the federal Office of Management and Budget (OMB), where it is incorporated into the budget submitted by the President to Congress. Then Congressional committees create a bill passed by both houses and signed by the President.
Before the advent of the pandemic, the federal budgetary process had already allocated resources to PSA for FY 2020 and 2021. Only with its 2022 request will PSA be able to factor in the challenges created by the pandemic.
“In some ways, the pandemic really just challenged us because of timing,” said PSA Director Leslie Cooper. This isn’t unique to PSA, it is how the federal budget process works, Cooper added. “We didn’t have an opportunity to get our bearings straight in order to be able to do anything really with respect to 2021.”
In contrast, local justice agencies in the District are funded by the city’s budgetary process, one that is malleable, according to Allen.
DC’s progressive pretrial system releases the vast majority of its pretrial defendants into the community under PSA’s supervision. However, with the suspension of trials and decreases in pleas, the court system was not processing defendants at the same rate. As a result, the population of felony defendants under supervision increased in 2020.
During the pandemic, the average number of days a defendant was supervised by PSA increased by 107 percent, as of mid-February.
The pandemic has prompted PSA to rethink its approach and adapt.
“A key piece for us is really figuring out how to best allocate our somewhat limited resources,” said Cooper. The agency worked to find the right “dosage of supervision” for defendants depending on their level of risk for re-arrest or not appearing in court, tailoring frequency of contact in this regard. It began to supervise defendants through a combination of virtual and in person reporting, depending on need.
The agency’s reported outcomes mirrored those of years past, even with the pandemic. The percent of defendants not rearrested increased from 87 (2019) to 88 percent (2020). In 2020, 91 percent of defendants made all scheduled court appearances compared to 88 percent in 2019. Finally, the percentage of defendants called in for non-compliance decreased by just two percent.
Still, had she known about the pandemic, Cooper would have included a section dedicated to the pandemic in the budget request, she told Capital Community News. This would have included a request for resources that PSA spent additional money on to ensure the health and safety of her agency’s workforce and supervisees: Supplies for disinfection and protection from the virus in larger volumes, weekly deep cleaning, and architectural barriers.
The agency, Cooper stated, would also have requested resources for its GPS monitoring services. The agency’s formula for budget calculations for GPS services factors in the amount of time that each defendant typically uses a device. “The average length of stay is ticking up and there’s obviously a cost to that, so we would probably ask for money in that regard,” said Cooper.
In an interview last November, Capital Community News asked Cooper about a backlog in PSA, in reference to an increase in the average time a defendant has been under supervision discussed in a September public meeting in the Criminal Justice Coordinating Council. Did she foresee a backlog, and was there already one? Did she foresee this overwhelming or straining PSA’s resources? Has it already?
“Yes, yes and yes,” Cooper responded.
“There’s a higher number of people under supervision, but it’s not because more people are coming [into supervision],” Cooper later added. “It’s because more people are staying.”
PSA’s resources are calculated based on an average over a number of years and on the assumption that cases will cycle through the justice system at a steady rate. Now, with the “slow-down” in case processing, PSA is “feeling the effect,” Cooper said. Pretrial Services Officers (PSOs) now supervise defendants for longer as cases are divided among current staff.
Cooper considers this strain caused by the pandemic a “situational factor” rather than a ‘backlog’, she explained, because the latter term suggests the circumstances are “within our control exclusively,” while the agency is working hard to rectify the situation.
The DC Courts navigate a similar budgetary process to PSA. “The DC Courts’ budget has adequately addressed our pandemic related expenses to date,” the DC Courts said in a statement. So does CSOSA.
In a statement, CSOSA Supervisory Public Affairs Specialist Bill Miller said the agency has “ample resources” to fulfill its responsibilities.
“CSOSA has worked within its budget to accomplish its objectives in a safe and effective manner and the federal Office of Management and Budget has been a close, responsive supporter of ours during the pandemic,” wrote Miller. “We have kept OMB informed of the extra costs we have incurred as a result of the pandemic but have not requested additional funds as of yet. Our continuing dialogue with them has been very helpful,” he later added.
In contrast, local justice agencies in the city have distinct budget processes.
According to Allen, if DOC came to the council asking for equipment or investment for court appearance infrastructure, they can help, unlike with PSA. In fact, Allen said he’s in touch with the head of DOC regularly and feels they know to ask for resources if they need them, from the council or the Office of the Mayor. DOC did not respond to a request for an interview.
“The system is malleable,” said Allen. Agencies can make mid-year adjustments. A million dollars is the line in the sand, explained Allen—if a request is less than a million dollars, agencies can make changes internally without council approval. If it’s more than one million dollars, the council would need to approve the contract, though they can meet urgent needs through their oversight.
However, if federal agencies need funding, they must look to the US Congress. “It’s an impossible situation,” said Bouker. If DC wants to allocate emergency spending, it can respond “lightning fast.” In contrast, “[t]he Congress of the United States is a slow-moving glacier.”
“It’s difficult enough, I think, in a pandemic, to run a government and to meet the needs of your residents,” Bouker said earlier in the interview. “It’s even more difficult when your hands are tied behind your back with respect to one of the most critical functions of a government–which is the criminal justice function.”
Gavrielle Jacobovitz is a recent graduate of Columbia University and a reporter at Capital Community News. She has previously interned with HuffPost Politics and NBC Owned TV Stations.
DC Witness, a non-profit dedicated to creating transparency in the District’s justice system, is providing data on criminal cases for this project. For more information, visit www.dcwitness.org.
This article was supported by a grant from Spotlight DC: Capitol City Fund for Investigative Journalism. Spotlight DC encourages the submission for proposals by independent journalists. For more information, visit www.spotlightdc.org.