Statement of
William I.
Shockley
Former
President
National
Association of Assistant
United States
Attorneys
Concerning the
challenges
FACING FEDERAL
PROSECUTORS
Before the
Committee on
the Judiciary
Subcommittee on
Crime and Drugs
United States
Senate
September 13, 2006
Mr. Chairman and Members of the
Subcommittee. On behalf of the National
Association of Assistant United States Attorneys (NAAUSA), thank you for
holding today’s hearing on the challenges facing federal prosecutors. As the nation’s
principal litigators, the 93 United States Attorneys and 5,600 Assistant United
States Attorneys serve on the frontline of our justice system. They are integrally involved in the war on
terror and ongoing efforts to fight crime and drug trafficking. Today’s hearing is important because federal
prosecutors regrettably face significant financial and human resource
challenges that undermine their mission and success. Put simply, Americans are less safe today and
our system of justice less secure because of these shortfalls in staff and
financial resources.
For more than twenty-four years, from
1981 until my retirement earlier this year, I served as an Assistant United
States Attorney (AUSA) in Connecticut, Florida, and California.
During a portion of that same period, I also served as president of the
National Association of Assistant United States Attorneys and as a member of
its executive committee until I retired. I
am deeply proud of my service to my nation, and share the same profound respect
for justice and the rule of law that that federal prosecutors honor. But I am concerned about the current state of
affairs because of the deteriorating ability of federal prosecutors to meet
their responsibilities under the Constitution and the laws of the United States.
My testimony today focuses on two
central points: the absolute need to assure adequate funding to permit the
Government to hire sufficient numbers of AUSAs and support personnel to satisfy
both civil and criminal prosecutorial demands, and the need to collect more
aggressively the billions of dollars in outstanding judgments; and second, the
need for a distinctly smarter approach in human resource management in United
States Attorney Offices, one that prompts cost-savings in the short-term
through the departure of some retirement-eligible AUSAs, and in the long-term
better retains other highly skilled, litigation-savvy AUSAs to increase the
government’s litigation effectiveness.
The Role of United States Attorney’s Offices
To fully appreciate the impact of the
budget and human resource challenges facing United States Attorneys and their
respective offices, it is important to understand the role that these
extraordinary men and women play in the nation’s law enforcement system. Each United States Attorney is the chief
federal law enforcement officer of the United States within his or her particular
jurisdiction. United States Attorneys
conduct most of the trial work in which the United States is a party. According to the United
States Attorneys Annual Statistical Report for 2005, Assistant United States
Attorneys constituted 58 percent of all DOJ attorneys and 71 percent of DOJ
attorneys with prosecution or litigation experience.
The United States Attorneys have
three statutory responsibilities under Title 28, Section 547 of the United
States Code:
- The
prosecution of criminal cases brought by the Federal government;
- The
prosecution and defense of civil cases in which the United States is a party; and
- The
collection of debts owed the Federal government which are administratively
uncollectible.
Impact of USAO Funding and Staffing
Shortfalls
Any
discussion of the budget for the US Attorney Offices should begin by
acknowledging two important facts:
(1) Collection of debts by the USAOs
exceeds the annual budget of all the U.S. Attorney’s offices combined. In 2005, AUSAs collected over $3.5
billion, more than twice the amount of the FY 2005 appropriation of $1.526
billion.
(2) Almost 72% of the annual USAO
budgets are attributed to personnel costs.
The labor-intensiveness of USAO efforts means that budget recissions and
reductions to annual appropriations cannot be absorbed by program, capital,
grant or contract funds, which is possible in many other federal programs.
From fiscal year 2003 to 2006,
recissions and unfunded cost of living increases have reduced funds available
to the USAOs by $120 million. This in
turn has constrained USAOs in their ability to hire sufficient AUSAs and
support staff and keep up with caseloads.
Consequently the total number of vacant FTEs in the USAOs has
skyrocketed from 198 in fiscal year 2004 to over 750 by this summer. Recently, the National Association of
Assistant United States Attorneys was advised that there were 382 vacant AUSA
positions, almost seven percent of the total 5,693 authorized AUSA positions.
Based on the information NAAUSA has
received from AUSAs around the country, the impact of the budget and staffing
shortages has varied from office to office.
However, it is clear that the capability of many United States Attorneys
to effectively carry out their responsibilities has been diminished. This in turn has undermined the effectiveness
of law enforcement efforts, for example against unlawful immigration and
illicit drugs, despite increases in resources to DEA, FBI and ICE in connection
with their investigation and apprehension of suspects. Put simply, funding and staffing shortages in
United States Attorney offices has meant that there are not enough Assistant
United States Attorneys to prosecute wrongdoers, despite significant increases
in federal law enforcement funding.
The
impact of insufficient USAO funding is not confined to criminal
prosecutions. The impact is felt on the
civil side as well. In immigration
matters, the FBI is frequently unable to timely perform background
investigations upon aliens applying for status change in the United States, leading to mandamus actions that
must be defended by the USAO when statutory time limits for processing the
immigration applications have passed.
This increase in cases comes on top of increasing caseloads for defense
of discrimination claims, torts, Bivens actions and social security benefits
appeals. Shortage of support staff,
shortage of funds for essential travel and for the employment of experts for
trials, and antiquated computer systems all compound the civil AUSA’s
endeavors.
Assistant United States Attorneys are
understandably frustrated by this situation.
I have attached to my testimony an appendix containing the anecdotal accounts
of several Assistant United States Attorneys, explaining in their own words the
challenges they face due to budget shortages.
(Appendix at pp. 10-14). FBI
agents, DEA agents, Border Patrol officers and others are equally disillusioned
because their valuable work is not being supported by prosecutions.
It is clear on the basis of these
accounts that USAO funding and staffing shortages have resulted in:
(1) An increase in the thresholds in
USAO declination guidelines to exclude many cases previously eligible for
prosecution in a wide variety of areas, including immigration, drug trafficking
and gang-related crimes, bank robberies and white collar crime, to name but a
few.
(2) An increase in the amount of
uncollected restitution due crime victims under the Mandatory Victims
Restitution Act (MVRA) of 1996;
(3) Drastic restriction of funds to satisfy
essential yet common litigation expenses, such as travel for witness interviews
and depositions, use of expert witnesses and the costs associated with the
production of financial records pursuant to grand jury proceedings, all of
which hinder the chance of prosecutorial success;
(4) The transfer of some federal
cases to local District Attorney’s offices.
On a case-by-case basis, the impact
is also pernicious. For example, in one
serious health care fraud case, the targets turned over hard drives likely
containing valuable evidence. However,
the government’s inability to fund the conversion of the hard drives to written
format curtailed the Government’s ability to proceed, and the investigation was
terminated. In the same USAO, another
health-care fraud case remains uninvestigated because the government was unable
to fund the scanning of three rooms full of documents seized pursuant to a
search warrant.
AUSA Staffing: Short-Term and
Long-Term Challenges
The
challenges facing federal prosecutors are not limited to funding
shortcomings. There also are a range of
short-term and long-term staffing problems that undermine the effectiveness of
US Attorney Offices. In the past, before
the recent funding shortfalls began to occur, USAOs had sufficient funds to
hire AUSAs, but did not have the authorized positions or FTEs. Now, the situation is reversed. In spite of authorized slots and many
qualified applicants for each AUSA position, many USAOs simply have not
received sufficient funds to fill AUSA vacancies. In addition, there is a longer-term problem:
many AUSAs do not remain employed long enough – due foremost to the
insufficiency of their retirement benefits -- to assure an adequate return on
the government’s investment in their training and litigation expertise, which
causes the government’s overall prosecutorial effectiveness to suffer.
Viewing the short-term problem first,
budget shortfalls have prompted the Executive Office of U.S. Attorneys to
reduce payroll costs by encouraging senior-level AUSAs to voluntarily retire.
Replacing hundreds of senior AUSAs, whose salaries average $140,000 per year,
with younger AUSAs with average annual salaries of $75,000, yields significant
immediate savings to the USAO budgets.
Using existing authority to offer $25,000 cash incentives to retiring
AUSAs, the Executive Office of U.S. Attorneys has conducted three “buy-outs”
over the past three years, and another buy-out is planned for early FY
2007. However, the buy-outs reportedly
have not met DOJ’s workforce reduction goals.
I, along with many other AUSAs,
believe a better approach exists. Rather
than continuing to rely on buy-outs to achieve savings, a more powerful
financial incentive to prompt AUSA retirement is embodied in pending
legislation -- “The Assistant United States Attorney Retirement Benefit Equity
Act,” S. 2076 – that would equitably provide AUSAs with the same retirement
benefits enjoyed by all other federal law enforcement officers. The legislation clearly would accelerate the
departure of retirement-eligible AUSAs.
A 2004 survey conducted by NAAUSA indicated that, if a law enforcement
officer-equivalent retirement benefit were made available to AUSAs, more than
1000 senior-level AUSAs likely would retire within five years. The succession of retirement-eligible AUSAs
by younger, lower-paid AUSAs would produce significant cost savings over the
next several years, possibly as much as $100 million over three years.
The longer-term human resources
problem faced by some United States Attorney Offices is the premature departure
of skilled, experienced federal prosecutors. The average AUSA remains with DOJ
for only eight years, and these early departures cause a critical loss of
litigation skill and experience to the Government. The retention problem varies
from district to district, and is most dramatic in higher-cost districts. In the larger offices and in the metropolitan
areas, USAOs have become training grounds for the litigation divisions of
private law firms, the very same law firms that utilize their trained former
AUSAs in litigation against the government.
DOJ internal studies and surveys have
identified the AUSA retention rate as a significant problem and the enhancement
of the AUSA retirement benefit as the foremost remedy. A 1989 report of the
Attorney General's Advisory Committee concluded: "Clearly, career AUSAs
should be authorized to receive retirement benefits afforded all of the other
members of the federal law enforcement community since the majority of AUSA
responsibilities relate to the investigation, apprehension or detention of
individuals suspected or convicted of criminal laws of the United States." The original reason for the disparity between
law enforcement officer and AUSA retirement benefits – due to the status of
AUSAs as political appointees -- has long been superceded by the current hiring
of AUSAs under a merit-based appointment process.
Once again, “The Assistant United
States Attorney Retirement Benefit Equity Act,” S. 2076, would remedy the AUSA retention
problem. Bringing the pension benefits
of Assistant United States Attorneys into line with the retirement benefit
package received by the other tens of thousands of federal law enforcement
employees,
would prompt significant numbers of younger AUSAs to remain with the Department
for a career. This process would help
assure the government’s retention of greater numbers skilled litigators to
handle increasingly complex cases. Numerous United States Attorneys informally
have praised the legislation. We are
confident that the costs of the legislation will be offset by the collections
reform proposals formulated by the National Association of Assistant United
States Attorneys and will additionally improve the Department of Justice’s
capacity to collect restitution and civil and criminal judgments and increase
federal revenues.
Mr. Chairman, thank you for your
leadership and concern for the challenges facing federal prosecutors. The National Association of Assistant United
States Attorneys is deeply appreciative of your efforts and pledges its
continued support of to work with you and other members of the Senate to
address the problems outlined in my statement.
I will be
happy to answer any questions you have.
APPENDIX
PERSONAL
OBSERVATIONS OF ASSISTANT UNITED STATES ATTORNEYS
ON THE
CHALLENGES AND IMPACT
OF
FUNDING AND STAFFING SHORTAGES
Witness Interviews
“The
negative effect of the curtailment of case-related travel for witness
interviews and preparation cannot be overstated. Pretrial interviews over the phone or just
prior to trial in the hallway are not the way USAOs have done business in the
past, nor how they need to do business.
Personal, face-to-face on site contacts with witnesses, whom we’re
asking to sometimes risk their and their families’ lives, are essential, both
to the cases’ success and to basic witness services. Moreover, being at the witness’
home/workplace invariably produces chances to readily access supporting
documentation, photographs, business records, emails and additional witnesses
that make testimony corroborated and far more meaningful to juries. These opportunities are squandered absent
reasonable travel funding.”
Southwest Border Issues – Immigration,
Drugs and Indian Reservations
“The budget shortfall has devastated the USAO for the
District of Arizona. We have been down as many as 14 positions within the
District. This at a time when illegal immigration is at an all-time
high. Last year, Border Patrol in Arizona apprehended nearly 600,000 persons entering into the United States illegally. Each of these represents a potential
federal prosecution, but because of limited resources we are able to prosecute
less than 1% of these cases. Thus a system has been set up to try to
prioritize the most serious offenders for prosecution. During this
same time the Border Patrol in Arizona has been increased by 500 agents, and yet the United
States Attorney's Office in the District has actually been reduced in size by
budget cuts, hiring freezes and voluntary early retirement.
The same is true with drug offenses. Given the
number of offenders and the limited number of AUSAs available to prosecute
these offenses, priority has been given to port of entry drug cases,
CPOTS, RPOTS, pipeline cases and other large organizations. In other
instances thresholds have been enacted to control the number of cases taken
federally due to the lack of prosecutorial resources. In many instances
this means that cases involving hundreds of pounds of marijuana being
transported into the United States have to be deferred to local
prosecution.
In addition to Arizona's 374 miles of border with Mexico and the large volume of immigration and drug cases
associated with the border, the USAO for the District also has
exclusive jurisdiction to prosecute all major crimes off of 21 Indian
Reservations within the state. In fact, over 70 percent of the land in Arizona is federal land. Thus the USAO prosecutes
all murders, assaults, rapes, child sexual abuse and other offenses
arising from Indian Country. As with immigration offenses, our resources
in this area have been decreased as well. A previously funded
position to prosecute Child Sexual Abuse cases in Indian Country was not
renewed. Nevertheless, the volume of offenses arising in Indian
Country continues unabated despite the reduction in resources for
prosecution. The USAO in Arizona has partnered with DEA, FBI, BIA, ATF and other state
and tribal law enforcement agencies to enact an initiative aimed at the
arrest and prosecution of methamphetamine dealers in Indian Country within
the District. This has been done despite a lack of resources because
of the importance of this issue and the prevalence of drug involvement
(particularly methamphetamine) in so many Indian Country offenses. The
goals is to reduce violent crime by targeting meth use and sales.
But all of this has been done with what little resources are available to the
District. No additional funding or positions have been given to the
District to help with this important endeavor.”
Victim Restitution
“The
greatest challenge of being an AUSA in charge of the Financial Litigation
Unit (FLU) is the lack of resources to perform our mission. In 1996,
Congress enacted the Mandatory Victims Restitution Act (MVRA) which
prioritized victims' rights and ensured that restitution would be imposed in
most cases, in an effort to compensate victims for their losses. Significantly,
though, no additional resources were provided to the FLUs, which are
responsible for the enforcement of restitution on behalf of victims.
In my district, the amount of restitution due victims has increased 15 times
since the MVRA, from $22 million in 1995 to nearly $350 million in 2005.
The total number of collection cases carried by our FLU has doubled during
the same time period, to over 1,300 cases. Yet, our FLU has the same
staffing that it did 10 years ago: one AUSA, one paralegal, and two legal
assistants. Moreover, our district is one of the luckier ones to
have an AUSA dedicated to the FLU for more than 50% of their time. The
current budget constraints further limit the resources that are
available. Our entire district has cut our operating expenses to the
bone, even though the FLU's collections are significantly greater than the
district's operating budget. The end result is that the lack of adequate
resources hampers the FLU's mission, as well as Congress' intent with respect
to victims of crime.”
Another
FLU Attorney Commented: “I am the
Financial Litigation Unit AUSA in the Western District of Texas. I and five support staffers are
responsible for collecting criminal fines and restitution imposed in more than
19,000 cases. Of course, it is impossible to work every file with such a
small staff, but our pleas for additional resources have gone unheeded.
Without additional personnel, there is the risk that criminals may snub their
noses at their monetary obligations. It is not just the front end, but
also the back end of prosecutions that needs budgetary support. “
Interpreters
“The
challenge in South Florida is multiple language barriers. It is
practically impossible to prosecute a case without incurring the cost of
interpreters for interviews, hearings, depositions and trials, and
translators for the documents. Our office must pay its own interpreters
for out-of-court proceedings, and in civil cases, for court hearings and trials
as well.”
Federal Civil Cases
“The budget cuts have impacted criminal prosecutions,
but they have also impacted government civil defense efforts. This
affects not only our Bivens defense of law enforcement personnel, but also our
defense of Navy physicians sued for malpractice, and other federal
civil cases. I currently have a $36,000,000 civil suit for which we
have no paralegal to assign. I also have a potential $27,000,000 case with no
paralegal, as well as numerous other multi-million dollar suits
without any paralegal assigned. I have two large cases, one a
$5,000,000 wrongful death action, and the other a $6,000,000 birth injury
medical malpractice lawsuit, where a part-time paralegal has been made
available. We just don't have sufficient support staff to go toe-to-toe
with many law firms. When I started 11 years ago it was rare to be
out-gunned by all but the biggest national firms. Now even the solo
practitioners have more staff support than the civil AUSAs.
Civil AUSAs never have case-agents
assigned to civil cases. Nor do we receive any consistently reliable
agency support. Our increasingly alone, "Lone Ranger" status
has now reached the point where we simply cannot deliver the
same high-quality representation as when we had word processing staff to
work on appeals and major motions, better staff/attorney ratios to assist
the AUSAs, and adequate paralegal support.
The predictable result is higher payouts by the Treasury's
Judgment Fund that will probably far out-weigh the theoretical "savings" alleged
to be realized in the chronic budget cuts.”
Training
No
longer is training made available to AUSAs anywhere other than at the National Advocacy Center. Here’s a recent case in point: we just
found out that the federal Centers for Medicare and Medicaid Services (CMS) is
offering training for law enforcement on the new Medicare Part D drug benefit
program. We prosecute health care fraud, and need to understand how each
Medicare program works. CMS had room for two people from our
office. The training was for one day in Dallas, a cheap trip. Nevertheless, our office would
not pay for the travel due to budget constraints. This is training
directly relevant to our mission, but we cannot go unless we want to pay for it
out of our own pocket. Our auditor/investigator is willing to drive on
her own nickel if our office will pay for the hotel.
Pay Problems
“I
work in the USAO Central District of California. I have worked as an AUSA
since 1991. I am deeply saddened to see the damage that the current
budget shortfall is inflicting on my office. AUSAs in my district have
not received raises for the last two years, and have been told that they
will not get raises until at least the end of 2008. Yet, the cost of
living in Los
Angeles
continues to rise, meaning that it becomes harder and harder to maintain a
quality lifestyle on an AUSA's salary. On the one hand, an AUSA can
take a job in the private sector and make $200,000 - $1,000,000 a
year at a law firm in Los
Angeles, have
a good secretary, and have virtually unlimited supplies and support.
On
the other hand, staying at the USAO means staying underpaid, struggling to
pay the bills, having to share a secretary with five other
attorneys, doing your own copying at midnight, and being told that there is no money to issue financial subpoenas so
you cannot even properly investigate your cases....... Especially
for AUSAs with children, it becomes the only sensible decision to leave
government service.
Bottom line --- we are
steadily losing AUSAs. The AUSAs who remain are
becoming more and more overworked, with less and less reward, office
moral plummets, and more people leave. I am a career
prosecutor. (I worked previously for the LA District Attorney and at main
DOJ). Yet, even I am considering leaving. This latest budget
crisis is like the straw that broke the camel's back.”
Impact on a Small United
States Attorney Office
“This
concerns a small office normally staffed with less than 30 attorneys covering a
main headquarters office with multiple branch offices.
The
average AUSA is very experienced and is able to more easily carry a heavy and
complex caseload. In the last 3 years, the District has lost multiple AUSAs to
details. On these occasions, the USA approved their details only because the USA was guaranteed a backfill for each AUSA. The
district has not received authorization to take the affirmative steps necessary
to hire backfills…not even temporary backfills. This has resulted in the
necessity for AUSAs to travel between offices, incurring travel expenses, to
handle court proceedings and pick up the general caseload responsibilities of
the absent AUSAs. While assisting other offices, with no idea as to when
relief will arrive, these same AUSAs are not able to devote the time and
attention to their own already heavy caseloads.
The
District lost one Paralegal Specialist within the last year and has not been
granted authorization to fill her FTE. She was invaluable in assisting in
responding to habeas petitions (ever increasing in number due to the recent
opening of a federal maximum security prison in the district) as well as
traveling throughout the district to assist AUSAs in criminal and civil trial
preparation. AUSAs are working additional overtime nights and weekends
just to respond to habeas petitions and prepare discovery materials and are not
able to use, in a number of instances, the ALS equipment previously purchased
for more efficient court presentations.
The
District also lost a Legal Assistant within the last year and now the District
has only one Legal Assistant supporting multiple attorneys in an office which
maintains an exceptionally heavy docket. No authorization to hire a
replacement has been received. The district must send Legal Assistants
from other district locations to spend several days at one time to assist in
document filing, typing, and phone duties. The hotel and mileage expense
budget for the district suffers as a result and the AUSAs and the remaining
Legal Assistant at the branch office are experiencing serious morale problems.
The
inability to fill AUSA and support staff vacancies is critically detrimental to
the overall mission of DOJ in the district. Drug and white collar crime
thresholds are continually being raised and agents are expressing frustration
and disappointment over our continuing inability to address certain areas of
crime due to lack of resources.
The
District does not have sufficient funds to even grant Administrative Pay Review
increases to the AUSAs who, although working harder and longer hours than ever
before, are not capped out in pay. This is very demoralizing to these
AUSAs who would otherwise be receiving performance pay raises if working in the
private sector.
The
District has not had enough money in 3 years to hold office conferences for
training, which are always extremely beneficial for promoting team spirit and
comaraderie as well as for providing a forum conducive to issue discussion and
training on issues unique to the District.”