Sustained Outrage

Does America care about the judicial vacancy crisis?

The Senate returned from its August recess yesterday, and spent part of the day discussing the nomination of Jane Branstetter Stranch, a Tennessee lawyer up for a seat on the Sixth Circuit Court of Appeals. When they took up a vote, Stranch was confirmed by a margin of 71-21. (West Virginia Sen. Carte Goodwin, who spoke on behalf of his late father in Charleston on Monday morning, hustled back to Washington in time to vote in favor of Stranch’s confirmation.)

Stranch passed out of the Judiciary Committee on Nov. 19, meaning that she had to wait almost 10 months before getting a vote. With her confirmation, the dubious distinction of the longest pending nomination passes to Albert Diaz, a North Carolina judge tapped for the 4th Circuit and approved by the Judiciary on Jan. 28. As I’ve noted before, Diaz went through the nomination and hearing process together with James A. Wynn Jr., another Tarheel nominated for the 4th Circuit. But in a somewhat inscrutable move, the Senate confirmed Wynn but not Diaz just before the August recess.

President Obama took office almost 20 months ago. In that time, 43 of his nominations to the federal bench (including two Associate Justices on the U.S. Supreme Court) have been confirmed by the senate. As this Judicial Selection Snapshot prepared by the Alliance for Justice points out, Obama’s two immediate predecessors met with considerably more success during their first 20 months in office. At the same point in their tenures, Bill Clinton and George W. Bush had nominated 123 and 122 judges respectively. At the end of August, Obama had secured 40 confirmations, compared with 83 by Clinton and 74 by Bush II.

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Senate confirms Wynn but not Diaz

Last night, after the Senate confirmed Elena Kagan to become an Associate Justice on the U.S. Supreme Court, it also approved four federal judges, including North Carolina Judge James A. Wynn Jr. to a seat on the U.S. Court of Appeals for the 4th Circuit.

Wynn’s confirmation means that 13 of the 15 seats on the 4th Circuit are now occupied, the highest number for the very busy appeals court in years. It also, the Greensboro News & Record rightly points out, gives North Carolina a much-deserved second judge on the court. North Carolina is the biggest state in the 4th Circuit’s jurisdiction (which also includes West Virginia, Maryland, South Carolina and Virginia), and has been under-represented since Judge James D. Phillips Jr. took senior status in 1994. In fact, Wynn will fill Phillips’ seat, which has been unoccupied for 16 years.

Yesterday’s confirmations, however, did not include North Carolina Judge Albert Diaz, who, like Wynn, was nominated for a seat on the 4th Circuit by President Obama on Nov. 4. Diaz and Wynn appeared on the same panel together before the Senate Judiciary Committee, and passed out of committee together on Jan. 28. Ironically, Wynn garnered one vote against him in committee, while Diaz was approved by a unanimous, 19-0 vote.

James Wynn and Albert Diaz are not a package deal, and their fates need not be tied together just because they have moved through the confirmation process at the same time. But it is hard to see the logic of confirming one and not the other without someone coming forward to raise a specific objection to Diaz’s qualifications.

Most likely, the lack of action on Diaz is meant to serve as a reminder from Republicans that they will continue to slow-walk President Obama’s nominees through the confirmation process. There are still 103 vacancies in the federal judiciary, and that number has hovered around 100 for months, even as nominees sit in the pipeline.

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Tracking felonies

Sometimes, covering crime and courts, the media gets so focused on a particular case that we forget to take a step back and look at the bigger picture. Thankfully, reports like this study from the Bureau of Justice Statistics provide a compelling snapshot of how felonies work their way through the justice system.

The report, Felony Defendants in Large Urban Counties, 2006, looked at the 58,100 felony cases initiated in May 2006. Here are some of the key findings:

— Since 1990, violent crimes have inched downward, from 27 percent of felonies to 23 percent in 2006. The percentage charged with drug crimes have gone up, from 34 percent in 1990 (with a quick dip to 30 percent in 1992) to 37 percent in 2006. Property crimes have also gone down, from a high of 35 percent in 1994 to 29 percent in 2006.

— Defendants seem to be getting older. In 1990, only 10 percent of defendants were 40 or older, and that has risen steadily to 25 percent in 2006. The percentage of defendants under 25 has decreased, from 40 percent in 1990 to 33 percent in 2006.

— More defendants have criminal histories and convictions. In 1992, 55 percent of defendants had a previous felony arrest, compared with 64 percent in 2006. Those with prior felony convictions rose from 36 percent in 1990 to 43 percent in 2006.

— Almost one in three of the defendants charged, 31 percent, were already involved with the criminal justice system, either by being in custody, awaiting trial, or on probation or parole, when they were arrested on the new offense.

— Roughly three out of five defendants charged were released before the case was resolved. Of those, 33 percent engaged in some sort of pretrial misconduct. People facing drug offenses were more likely to have issues during their release (37 percent) than those with pending violent felony charges (26 percent).

The study also looked at typical outcomes for 100 defendants facing charges. Of those, 42 would remain in custody pending trial, while 58 would be released. Eight typically enter into a pretrial diversion with prosecutors, 23 have their cases dismissed, and 69 are prosecuted. Of those 69, four typically go to trial and 65 plead guilty. Of the trials, three result in convictions, and one ends in an acquittal. Of the 68 defendants who are convicted, 56 end in felony convictions, with 11 resulting in misdemeanor convictions. Two dozen will be sentenced to prison, two dozen sentenced to jail, 17 put on probation, and three have other sentences.

Let’s think about that: 95 percent of the convictions come from guilty pleas. Of those people who were convicted, 72 percent were convicted on the original charge for which they were arrested. Seven out of 10 of those convicted ended up incarcerated, either in prison or jail.

Remember, the study only looked at the 75 biggest counties in America, which naturally include some pretty big cities. At 191,000 people, West Virginia’s biggest county, Kanawha, doesn’t even come close. (El Paso County, Texas, is #75, and it has 750,000 residents.) But it still provides an interesting window into how felony cases are handled.

So, what kind of offenses were most likely to end in conviction? The answer may surprise you.

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Six months and counting for Diaz and Wynn

As of today, it has been exactly six months since the Senate Judiciary Committee approved the nominations of two North Carolina judges for seats on the U.S. Court of Appeals for the 4th Circuit. But the entire Senate has yet to take a vote on James A. Wynn and Albert Diaz, who mustered one single nay vote between them as they passed out of committee, thanks in part to anonymous holds.

Earlier this month, the Greensboro News & Record noted that after Sen. Kay Hagan, D-N.C., took to the Senate floor to lobby on behalf of her state’s nominees, Senate Minority Leader Mitch McConnell, R-Ky., spelled out why he refused to sign off on putting Wynn and Diaz to a vote. He was upset with President Obama’s recess appointment of Dr. Donald Berwick to the post of Administrator of the Centers for Medicare and Medicaid Services.

Democrats did not schedule so much as a committee hearing for Donald Berwick. The mere possibility of allowing the American people the opportunity to hear what he intends to do with their health care was reason enough for this administration to sneak him through without public scrutiny.

Given the President has been so dismissive of the Senate’s right to provide advice and consent under the Constitution, I am not inclined at this point to consent to the request proposed by my friend from North Carolina. Therefore, Mr. President, I object.

Today, President Obama noted that he discussed confirming judicial nominees with McConnell during a meeting with Republican leaders.

[D]uring our meeting today, I urged Senator McConnell and others in the Senate to work with us to fill the vacancies that continue to plague our judiciary.  Right now, we’ve got nominees who’ve been waiting up to eight months to be confirmed as judges. Most of these folks were voted out of committee unanimously, or nearly unanimously, by both Democrats and Republicans. Both Democrats and Republicans agreed that they were qualified to serve.  Nevertheless, some in the minority have used parliamentary procedures time and again to deny them a vote in the full Senate.

If we want our judicial system to work — if we want to deliver justice in our courts — then we need judges on our benches. And I hope that in the coming months, we’ll be able to work together to ensure a timelier process in the Senate.

Now, we don’t have many days left before Congress is out for the year. And everyone understands that we’re less than 100 days from an election. It’s during this time that the noise and the chatter about who’s up in the polls and which party is ahead threatens to drown out just about everything else.

But the folks we serve — who sent us here to serve, they sent us here for a reason. They sent us here to listen to their voices. They sent us here to represent their interests — not our own. They sent us here to lead. And I hope that in the coming months, we’ll do everything in our power to live up to that responsibility.

A few months ago, I wrote that four months seemed to be the standard amount of time that appelate judges had to wait to get a vote in the Senate. Well, Diaz and Wynn have blown past that mark, thanks in part to the time and energy devoted to Elena Kagan’s nomination to the U.S. Supreme Court. But they’re not even the worst off: Jane Branstetter Stranch, a Tennessee judge up for a seat on the 6th Circuit, has been left in judicial limbo since Nov. 19.

Drug use and pregnant teens

A recent report by the Substance Abuse and Mental Health Services Administration highlights some interesting trends among pregnant teenagers who seek treatment for drug and alcohol abuse. The report compared admissions from 1992 and 2007, and boy, has a lot changed over 15 years.

First of all, the demographics have shifted. In 1992, 54.5 percent of the pregnant teens admitted for treatment were white, 24 percent were black, and 15.7 percent were Hispanic. By 2007, those percentages were 50.3, 14.7 and 21.4, respectively.

The real eye-opening figures are in the primary substance abused. (A solid majority of pregnant teens admitted to treatment programs reported abusing multiple substances: 60.6 percent in 1992 and 62.5 percent in 2007). Alcohol, by far the dominant substance in 1992 at 44.1 percent, dropped to 20.3 percent in 2007. It was largely supplanted by marijuana, which jumped from 19.3 percent to 45.9 percent. Cocaine (20.2 percent to 6.8 percent) and heroin (4.5 percent to 3.1 percent) trended downwards. But the percentage of pregnant teens abusing methamphetamine more than quadrupled, from 4.3 percent in 1992 to 18.8 percent in 2007.

I also find it interesting that fewer teens are self-reporting (28.5 percent to 17.2 percent), or being referred by alcohol/drug abuse care providers (11.9 percent to 7.6 percent) other health care providers (15.1 percent to 4.7 percent) and schools (6.8 percent to 4.1 percent). Instead, many more are getting caught up in the criminal justice system (21.6 percent in 1992 to 43.3 percent in 2007).

Here’s the conclusion reached by the report:

First, the increased proportion of Hispanic pregnant teen admissions indicates a need for culturally sensitive substance abuse prevention and intervention programs, including culturally appropriate messaging, outreach, and engagement. Second, the quadruple increase in primary methamphetamine abuse highlights the need for educating teachers, primary care physicians, and obstetric and gynecologic specialists about the increased use among pregnant teens, especially in areas where methamphetamine abuse is a large problem or emerging concern, so they can provide the screening, counseling, and interventions necessary to help ensure the delivery of a full-term, healthy infant and the long-term health and well-being of the mother.

Judges and prison sentences

I promise I didn’t set out to make this Prison Week here at Sustained Outrage, but I keep finding interesting information about America’s exploding prison population. Today’s installment comes via the U.S. Sentencing Commission, which in 2007 voted to reduce sentences for crack cocaine violations.

This month, the commission published the results of a survey of federal judges it conducted between January and March of this year. So, how do the group of people tasked with deciding how much time convicted offenders spend behind bars feel about the sentences they hand out?

Well, the answers may surprise you.

When asked if the mandatory minimum sentences associated with various offenses were appropriate, a solid majority of 62 percent said that they are two high in general. When asked about minimums associated with specific crimes, most judges said they were appropriate, with three notable exceptions: For drug trafficking crack cocaine, 76 percent said the minimums are too high. For marijuana crimes, 54 percent said they were too high. And for receiving child pornography, 71 percent of judges surveyed answered that the minimum sentences are too high. This was not the case for production (only 23 percent said too high) or distribution (37 percent) of child pornography.

These results were echoed when the judges were asked about the appropriateness of the ranges suggested by the federal guidelines, which the U.S. Supreme Court ruled are advisory in important opinions in Kimbrough and Gall.

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Goodwin confirmed by Senate

The U.S. Senate unanimously confirmed R. Booth Goodwin II to be U.S. Attorney for the Southern District of West Virginia on Tuesday. The Senate also approved John Foster to be U.S. Marshal for the Southern District and Gary M. Gaskins to be U.S. Marshal for the Northern District.

In a news release, Sens. Robert C. Byrd and Jay Rockefeller applauded the confirmations. From the release:

“I was proud to have recommended Booth Goodwin as U.S. Attorney for the Southern District. His confirmation and appointment is not a day too early. There are a variety of investigations taking place which require immediate attention — including the recent mine disaster in Montcoal which took the lives of 29 West Virginia coal miners.  I believe the people of the southern coalfields deserve the competent and vigilant representation that Mr. Goodwin will bring to the table. He has some very important work to do, and the Southern District is entitled to the resources they need to see their interests protected,” said Byrd.

“I have known Booth Goodwin for many years and cannot think of a better person to fill this important position – a position responsible for investigations of tremendous significance to Southern West Virginia including the tragic Upper Big Branch mine disaster,” said Rockefeller. “His years of service show that he is fighting for the people of West Virginia – and I know that as U.S. Attorney for the Southern District of West Virginia he will continue to enforce our laws and protect our state’s citizens from crime. Mr. Goodwin is more than qualified as a federal prosecutor and I am pleased that the Senate has moved forward on his confirmation.”

In addition, Senators Byrd and Rockefeller applauded the Senate’s unanimous confirmation of West Virginia’s federal U.S. Marshals:  John Foster to be United states Marshal for the Southern District of West Virginia; and Gary M. Gaskins, to be United States Marshal for the Northern District of West Virginia.  Senator Byrd and Senator Rockefeller recommended both Foster and Gaskins to these positions.  They were unanimously approved by the Senate Judiciary Committee on May 13, 2010.

“U.S. Marshals have been protecting this great nation since 1789, and their service has never been more important than it is today. The task of securing the homeland from terrorist attack must be balanced with protecting the public’s court officers and buildings and ensuring the effectiveness of our judicial system. West Virginia is fortunate to have the experience and dedication of men like John Foster and Gary Gaskins to fill those roles,” Byrd stated.

“In these two men we have almost six decades of law enforcement experience, said Rockefeller. “Whether serving as a West Virginia State Trooper or in the U.S. Marshal Service, John Foster and Gary Gaskins have protected West Virginia communities for their entire careers and I am confident that they will keep serving us with integrity and dedication. I look forward to seeing them take office and I thank them for their willingness to continue their incredibly important and honorable work.”

Health care fraud convictions help recover billions

U.S. Attorney General Eric Holder and Health and Human Services Secretary Kathleen Sebelius announced today that joint efforts by the Department of Justice and Health and Human Services recovered more than $2.5 billion for the Medicare Trust Fund during the fiscal year 2009. This represents an increase of more than $500 million from the previous year.

“Over the years, we’ve seen that as long as health care fraud pays and goes unpunished, our health care system will remain under siege,” Holder said at a press conference. “These crimes harm all of us — government agencies and programs, insurers and health care providers, and individual patients. But we are fighting back.”

The Department of Justice also won or negotiated $1.6 billion in judgments and settlements, Holder said.

The Justice Department’s Criminal Division and our U.S. Attorneys’ Offices opened more than 1,000 new criminal health care fraud investigations and had more than 1,600 health care fraud criminal investigations pending. We reached an “all-time high” in the number of health care fraud defendants charged, with more than 800 indictments in nearly 500 cases and close to 600 convictions. And the Justice Department’s Civil Division opened nearly 900 new civil health care fraud investigations and had more than 1,100 pending cases.

The Health Care Fraud and Abuse Control Program’s annual report, which you can read here, does not break the money or cases down by state, so we don’t know how much of that may have come from West Virginia. But last November, in announcing that his office had recovered $8 million in the last fiscal year, Charles Miller, U.S. Attorney for the Southern District of West Virginia, said that nearly $1 million came from frauds against federal health care programs such as Medicare and Medicaid.

I mention this because over the last year or so, there have been several high-profile investigations into alleged wrongdoing at several medical facilities in West Virginia, including Justice Medical Clinic on the border of Wayne and Mingo counties and Mountain Medical Care Center in Williamson. The teeth of the Justice Medical prosecution (no criminal charges have been filed against anyone associated with Mountain Medical, although authorities raided the facility in March) was health care fraud.

It can be notoriously difficult to prove that, say, a doctor knowingly prescribed pain pills to an addict; the doctor can always argue that he or she was legitimately trying to treat a patient’s ongoing pain. If a patient lies about an ongoing pain issue, how is the doctor supposed to know? But it’s often harder for a doctor to explain why a medical facility billed a federal program for services that he or she didn’t provide, which constitutes health care fraud.

The lead investigator in the Justice Medical probe? A special agent with the U.S. Department of Health and Human Services.

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At this morning’s executive business meeting, the Senate Judiciary approved Booth Goodwin to become the U.S. Attorney for the Southern District of West Virginia. Goodwin’s endorsement came at the end of the meeting, when a handful of nominees, including John Foster and Gary M. Gaskins to be the U.S. Marshals for West Virginia’s Southern and Northern districts, respectively, were approved all together by the committee.

Almost the entire meeting was spent discussing a different Goodwin, Goodwin Liu, a law professor at the University of California at Berkeley who is up for a seat on the U.S. Court of Appeals for the Ninth Circuit. Liu passed out of committee by a 12-7 vote on strict party lines, with multiple Republican senators, including Ranking Member Jeff Sessions (R-Ala.), Orrin Hatch (R-Utah), John Kyl (R-Ariz.), Lindsey Graham (R-S.C.), John Cornyn (R-Tex.), and Tom Coburn (R-Ok.) all speaking out against Liu’s record as an academic with no judicial experience.

Sessions worried about adding Liu to the Ninth Circuit, which he called “one of the most undisciplined courts in America, one of the most activist courts in America.” Hatch questioned whether Liu would put his own views ahead of settled law, saying, “The Constitution must control government, not the other way around.”

Democrats countered that the senate had confirmed several circuit judges nominated by Republican presidents who had academic rather than judicial experience. Sen. Dianne Feinstein, (D-Calif.) noted that neither Judge Michael W. McConnell (who resigned from the Tenth Circuit in August 2009 to become the director of the Stanford Constitutional Law Center) and J. Harvie Wilkinson III (who taught law at the University of Virginia and edited the Norfolk Virginian-Pilot‘s editorial page for three years before President Reagan appointed him to the Fourth Circuit in 1984) had any judicial experience before becoming appeallate judges.

The discussion of Liu’s credentials offers an interesting prelude to the confirmation hearings of Elena Kagan, President Obama’s nominee to replace retiring Associate Justice John Paul  Stevens on the U.S. Supreme Court. Although Kagan is expected to be confirmed without too much difficulty, oppenents to her nomination are likely to raise the same issues about her academic, rather than judicial, experience.

Booth Goodwin on Senate Judiciary’s Thursday agenda

R. Booth Goodwin II, who was nominated by President Obama to be the U.S. Attorney for the Southern District of West Virginia on Jan. 20, is on the agenda for Thursday’s business meeting of the Senate Judiciary Committee.

If Goodwin’s confirmation goes smoothly, he will become the first nominated and confirmed U.S. Attorney in the Southern District since Kasey Warner left the office under a cloud of speculation in 2005.

Goodwin is the son of Joseph R. Goodwin, the district’s chief federal judge. Judge Goodwin told the Gazette in January that he will no longer hear criminal cases if his son is the district attorney. The judge has already recused himself from any cases handled by his son or the economic crimes section, which Booth Goodwin has headed for the past two years.

Two other West Virginia nominations are also on Thursday’s agenda: John Foster, to be U.S. Marshal for the Southern District, and Gary M. Gaskins, to be U.S. Marshal for the Northern District.