                  FOR PUBLICATION
              JUDICIAL COUNCIL
            OF THE NINTH CIRCUIT

IN APPROVAL OF THE JUDICIAL           
EMERGENCY DECLARED IN THE                      ORDER
DISTRICT OF ARIZONA
                                      
                    Filed March 2, 2011

   Before: Alex Kozinski, Chief Judge, Procter Hug, Jr.,
 Sidney R. Thomas, Raymond C. Fisher, Ronald M. Gould,
        and Johnnie B. Rawlinson, Circuit Judges,
      Audrey B. Collins, Roger L. Hunt, James Ware,
   Chief District Judges, and Stephen M. McNamee and
            Robert H. Whaley, District Judges.


                          ORDER

   On January 20, 2011, Chief Judge Roslyn Silver declared
a thirty day judicial emergency in the District of Arizona pur-
suant to 18 U.S.C. § 3174(e). Finding no reasonably available
remedy, the Judicial Council agreed to continue the judicial
emergency for an additional one-year period and suspend the
time limits of 18 U.S.C. § 3161(c). The continued judicial
emergency will end on February 19, 2012.

   The attached Report by the Judicial Council of the Ninth
Circuit Regarding a Judicial Emergency in the District of Ari-
zona constitutes the findings of fact and conclusions of law of
the Judicial Council justifying a declaration of judicial emer-
gency pursuant to 18 U.S.C. § 3174. This report was submit-
ted to the Director of the Administrative Office of the U.S.
Courts. See 18 U.S.C. § 3174(d).
                             3279
3280       IN RE APPROVAL   OF THE   JUDICIAL EMERGENCY
  REPORT OF THE JUDICIAL COUNCIL OF THE
   NINTH CIRCUIT REGARDING A JUDICIAL
  EMERGENCY IN THE DISTRICT OF ARIZONA

       Submitted to the Administrative Office of the
       U.S. Courts Pursuant to 18 U.S.C. § 3174(d)(1)
                      March 2, 2011

   On November 24, 2010, the late Chief District Judge John
Roll initiated the process to declare a judicial emergency in
the District of Arizona under 18 U.S.C. § 3174. He reported
a crushing criminal caseload and inadequate judicial
resources, and sought the Ninth Circuit Judicial Council’s
approval in declaring an emergency that would suspend the
time limits of the Speedy Trial Act (STA) for bringing
accused criminals to trial. This request is virtually unprece-
dented: only two circuit courts have approved a judicial emer-
gency under 18 U.S.C. § 3174(e) since the Speedy Trial Act
was enacted, both occurring over 30 years ago.

   With existing circumstances already dire, the tragic death
of Judge Roll on January 8, 2011, caused Chief District Judge
Roslyn Silver to declare a judicial emergency under 18 U.S.C.
§ 3174(e). This judicial emergency period commenced on
January 20, 2011 and ended February 19, 2011. Chief District
Judge Silver sought the Judicial Council’s approval to extend
the suspension of time limits for one year pursuant to 18
U.S.C. § 3174(b). After gathering additional data, and engag-
ing in extensive discussion about the extraordinary circum-
stances, the Judicial Council found no reasonably available
remedy, and thus agreed to declare a judicial emergency and
suspend the time limits required by 18 U.S.C. § 3161(c) for
one year. The continued judicial emergency commenced on
February 20, 2011, and will conclude on February 19, 2012.

  Under 18 U.S.C. § 3174(d), the Judicial Council hereby
submits to the Administrative Office: (1) the District of Ari-
zona’s application for a declaration of a judicial emergency,
            IN RE APPROVAL   OF THE   JUDICIAL EMERGENCY     3281
(2) a written report stating in detail the reasons for granting
the application, and (3) a proposal for alleviating congestion
in the district.

I.    A Judicial Emergency Exists in the District of Arizona

     A.   18 U.S.C. § 3174: the Judicial Emergency Provision

   According to 18 U.S.C. § 3174(a), upon application by the
district, the judicial council “shall evaluate the capabilities of
the district, the availability of visiting judges from within and
without the circuit, and make any recommendations it deems
appropriate to alleviate calendar congestion resulting from the
lack of resources.” If a judicial council finds no reasonably
available remedy, it may declare a judicial emergency and
suspend the 70-day time limit for a period up to one year,
instead allowing up to 180 days before a trial must com-
mence. See 18 U.S.C. § 3174(b). The time limits to try
detained persons “who are being detained solely because they
are awaiting trial” are not affected by the emergency provi-
sion. Id. If the time limits are not suspended, the sanction for
not bringing a defendant to trial within 70 days of the filing
of the indictment is a dismissal of the indictment. See 18
U.S.C. § 3162(a)(2).

   The statute does not specify what qualifies as an emergency
or what factors to assess before determining that there is “no
reasonably available remedy.” In the legislative history of the
Speedy Trial Act, many members of Congress commented on
the importance of a court’s resources to be able to comply
with the Act’s time limits, and the ability to suspend time lim-
its if a court could not meet those requirements. See 120
Cong. Rec. 41,773, 41,775 (1974). The legislative history
supports that an emergency situation would include the death
or incapacity of a judge. Id.

   Congress did not intend that a district court demonstrate its
inability to comply with the STA by dismissing criminal cases
3282      IN RE APPROVAL   OF THE   JUDICIAL EMERGENCY
and releasing would-be convicted criminals into society. See
H.R. Rep. No. 93-1508 at 80-82, reprinted in 1974
U.S.C.C.A.N. 7401. In fact, the emergency provision has been
used twice previously to avoid imminent criminal dismissals
as a sanction for non-compliance. See United States v. Bilsky,
664 F.2d 613, 619-20 (6th Cir. 1981) (Sixth Circuit suspended
time limits for one year in the Western District of Tennessee
shortly after the Speedy Trial Act became effective in 1980);
United States v. Rodriguez-Restrepo, 680 F.2d 920, 921 at n.1
(2d Cir. 1982) (Second Circuit approved emergency for the
Eastern District of New York, noting the district’s “burgeon-
ing caseload and calendar congestion.”).

   In addition to the statutory judicial emergency, as outlined
above, the District of Arizona also has a “judicial emergency”
as defined by Judicial Conference policy. A vacancy on a dis-
trict court is considered an “emergency” if the court’s
“weighted filings” exceed 600 per judgeship. The District of
Arizona’s weighted filings, 653 per judgeship, are high
enough that Judge Roll’s judgeship became a judicial emer-
gency immediately upon his January 8 murder. See Russell
Wheeler and Sarah Binder, Do Judicial Emergencies Matter?
Nomination and Confirmation Delay during the 111th
Congress. The Brookings Institute, Feb. 16, 2011, at 1, avail-
able at http://www.brookings.edu/papers/2011/0216_judicial_
emergencies_wheeler_binder.aspx.

  B.   The District of Arizona’s Application

   The District of Arizona’s application includes the late Chief
District Judge Roll’s letter dated November 24, 2010, Chief
Judge Silver’s letter dated January 25, 2011, and Chief Judge
Silver’s Declaration of a Judicial Emergency in General Order
No. 11-02. See Tabs A-C. In his letter, Judge Roll reported
that the District of Arizona has the sixth-highest weighted and
the third-highest un-weighted caseload in the nation. In Fiscal
Year (FY) 2009, the District of Arizona ranked first in the
          IN RE APPROVAL   OF THE   JUDICIAL EMERGENCY      3283
Ninth Circuit and third in the nation in criminal case and
defendant filings, an increase of 65% since 2008.

   This increase particularly affects the Tucson division. In his
November 24, 2010 letter, Judge Roll explained that the then
four active judges and one senior district judge in Tucson
were scheduled at that time to hear 919 trials, including 893
jury trials, 73% of which involve either immigration or drug
charges. See Tab A at pp. 2-3. It has been the practice of the
Tucson judges to set 30 cases for jury trial each Tuesday, but
the district judges cannot preside over more than two trials per
week. Clearly, that schedule is premised on the likelihood that
most cases will plead out, or defendants will agree to a contin-
uance. Now, with Judge Roll’s death, resulting in two vacan-
cies on the Tucson bench, the situation has become
intolerable.

   As further described by Chief Judge Silver, since the death
of Judge Roll, the three remaining Tucson judges are facing
over 1,000 felony cases each. See Tab B at p. 1. Judge Roll’s
death raised the number of vacancies in the District of Ari-
zona to three, with a vacancy created in Tucson when District
Judge Zapata took senior status, and another created in Phoe-
nix when Judge Murguia was elevated to the Ninth Circuit
Court of Appeals. Id. At this time, there are no nominees for
these three vacancies.

II.   Reasons for Granting the District of Arizona’s
      Application

   The District of Arizona’s application sets forth the reasons
why a judicial emergency exists in Arizona. The data detailed
below shows that the District of Arizona has calendar conges-
tion because of an inordinate amount of criminal cases, crimi-
nal defendants, and a lack of judicial resources.
3284        IN RE APPROVAL   OF THE   JUDICIAL EMERGENCY
  A.     Current Caseload Status of the District of Arizona

    1.    Criminal Docket

   In FY 2009, the District of Arizona ranked first in the Ninth
Circuit and third in the nation for criminal case filings. The
national average of criminal felony filings per judgeship was
97 during FY 2009. During this same period, each Arizona
district judge averaged 328 criminal felony filings, but in the
Tucson Division, this number was 652 filings per judge. The
picture becomes bleaker when one looks at the number of
criminal defendants, not just the number of cases. In Arizona,
there have been 6,922 criminal defendants (4,913 were in
Tucson) during Calendar Year 2010, a 33.9% increase over
the previous year. We incorporate by reference the numbers
for FY 2008 through FY 2010 for felony case filings, felony
defendant filings, felony case sentencings, and felony defen-
dant sentencings as listed in Judge Roll’s November 24, 2010,
letter. See Tab A at pp. 3-4.

   Since Judge Roll’s criminal caseload has now been distrib-
uted among the three active district judges in Tucson, their
caseloads are even more staggering. As of January 31, 2011:
Judge Collins had 972 criminal cases, and 1,218 criminal
defendants; Judge Jorgenson had 1,005 criminal cases, and
1,222 criminal defendants; and Judge Bury had 963 criminal
cases, and 1,182 criminal defendants. If filings continue at the
same pace as the past 12 months, the active judges will
receive an average of 1,548 criminal defendants in Calendar
Year 2011.

   The District of Arizona’s magistrate judges are overbur-
dened as well. In FY 2009, its magistrate judges heard 20,952
petty offense cases — second highest in the nation, the first
being the Southern District of Texas. Most of the petty
offense cases were heard in Tucson (over 17,000). In addition,
magistrate judges in Arizona heard 1,016 Class A misdemea-
          IN RE APPROVAL   OF THE   JUDICIAL EMERGENCY   3285
nor cases — second highest in the nation, out of a total of
8,700 such cases nationwide.

    2.   Civil Docket

   The District of Arizona is also experiencing inordinate
pressure with its civil caseload. Three percent of civil cases
filed in Phoenix, and 5.6% of the Tucson cases, have been
pending over 3 years as of December 31, 2010, a total of
3.4% for the district. Of the motions filed in this district,
10.6% were pending over 6 months as of January 18, 2011.
Because of the overwhelming caseload, in FY 2009, Arizona
ranked an unenviable 54th in the nation and 6th in the circuit
for time from filing to trial in civil cases, and 35th in the
nation and 7th in the circuit in time to disposition.

   These percentages demonstrate the pressure of the civil
caseload and motion docket at all times. Given that these
numbers were generated when the District of Arizona had no
vacancies, and now there are three vacancies with no nomi-
nees, the backlog will continue to grow. We note that Circuit
Judge Tashima graciously volunteered to take on Judge Roll’s
civil docket, which will help the District of Arizona’s over-
burdened district judges.

    3.   Capital Docket

   The District of Arizona has a large number of inmates on
death row. Currently, there are 135 individuals on death row,
virtually all of whom will file petitions for a writ of habeas
corpus in the federal district court. These cases consume an
enormous amount of judicial and staff resources. Within the
Ninth Circuit, only California has a higher number of death
row inmates. The District of Arizona has also had a large
number of federal death penalty cases prosecuted; 13 cases
involving 32 defendants eligible for the death penalty have
been filed since 1999.
3286       IN RE APPROVAL   OF THE   JUDICIAL EMERGENCY
    4.    Overall Caseload

   In FY 2009, Arizona carried a weighted caseload of 603,
and an unweighted caseload of 860 cases per active district
judge (which was third highest in the nation). In FY 2010,
Arizona’s weighted caseload was 653, ranking ninth highest
in the nation (the unweighted caseload data is not yet avail-
able). The higher ranking districts include districts in other
border states or districts with multi-district litigations
(MDLs).

  B.     Border Patrol Program and USAO Resources

   The District of Arizona’s criminal caseload has grown
because the Department of Homeland Security has increased
border enforcement, and the United States Attorney’s Office
has increased its efforts to prosecute these cases along the
United States-Mexico border. See Tab D: Administrative
Office of the United States Courts: Report on the Impact on
the Judiciary of Law Enforcement Activities along the South-
west Border, prepared for the U.S. House of Representatives
and Senate Committees on Appropriations (July 2008) (“AO
Report”). Operation Streamline, a program that requires crim-
inal prosecution and imprisonment of all individuals unlaw-
fully crossing the border, eliminated the discretion
traditionally reserved by United States Attorney’s offices to
limit prosecution to immigrants with criminal records or pre-
vious illegal border-crossings. Id. at pp. 1-7. This program has
led to a burgeoning number of federal criminal prosecutions
in all districts bordering Mexico, but the increase has been
particularly pronounced in the District of Arizona.

   In the few years since Operation Streamline commenced,
the United States Attorney’s Office in Tucson has doubled its
number of prosecutors and empaneled a third grand jury in
January 2011. The United States Attorney’s Office for the
District of Arizona reports that it added 42 AUSAs since
2006, and filled eight other AUSA vacant positions. See Tab
          IN RE APPROVAL   OF THE   JUDICIAL EMERGENCY    3287
E: United States Attorney District of Arizona “Border Secur-
ity Fact Sheet June 2010.” There are currently 170 AUSAs in
the District of Arizona, a 62% increase over the past 10 years.
See http://www.justice.gov/usao/az/office_overview.html.

   There has also been a dramatic increase in the number of
U.S. Border Patrol and other federal law enforcement agents
in Arizona. Id. In FY 2009, the Border Patrol apprehended
approximately 241,000 people in the Tucson Sector and
seized well over 1 million pounds of marijuana. Due to this
dramatic increase in resources, the USAO was able to investi-
gate and prosecute 3,200 felony and 22,000 misdemeanor ille-
gal immigration cases in FY 2009, in addition to prosecuting
other border-related crimes involving drug and firearms
smuggling. Id. at p. 1.

   All Operation Streamline cases resulting from Border
Patrol apprehensions in the Tucson Sector (comprised of 262
miles of international border, extending from the Arizona bor-
der with New Mexico to the Yuma County line) are heard at
the Evo A. DeConcini Federal Courthouse in Tucson. The
2008 AO Report deemed this area the “the busiest sector
along the entire border.” See Tab D: AO Report at p. 6. Pres-
ently, Tucson division magistrate judges hear 70 Operation
Streamline cases per workday. During Calendar Year 2010,
the Tucson Division disposed of 20,066 immigration petty
offense cases, of which 16,981 were part of Operation
Streamline.

   In fact, the Department of Justice asked for a funding
increase of $231.6 million for FY 2010 to support its immi-
gration enforcement along the southwest border, including
Operation Streamline. The DOJ request includes $8.1 million
to fund new USAO positions in response to the
rising caseload along the U.S.-Mexico border. See U.S.
Department of Justice, Fiscal Year 2010 Budget Request
(2009),      available     at    http://www.usdoj.gov/jmd/
2010factsheets/pdf/safeguardingour-swb.pdf. According to
3288       IN RE APPROVAL   OF THE   JUDICIAL EMERGENCY
the 2008 AO Report, an additional $100 million was appropri-
ated in FY 2008 to the Department of Justice, including $7
million to hire additional AUSAs and support staff, and in FY
2009, the Department of Justice requested $100 million in
new funding for the Administration’s Southwest Border
Enforcement Initiative, including $8.4 million to hire another
50 AUSAs along the border. See Tab D, AO Report at p. 8.

  There has been no correlating increase in Article III judge-
ships, and as noted above, there is a further significant
decrease in judicial resources with the three current vacancies.

III.   Proposal for Alleviating Congestion

  A.    Visiting Judges

   The Ninth Circuit maintains a robust and vigorous visiting
judge program that provides visiting judges to districts requir-
ing assistance each year. In the past, the Circuit has success-
fully addressed the lack of judicial resources in districts
throughout the Ninth Circuit, including the Southern District
of California, the Central District of California, the District of
Montana, the District of Idaho, and the District of Arizona.
Most recently, the Circuit recruited more than 80 visiting
judges to assist the Eastern District of California, which the
individual judges assuming between 15 and several hundred
cases, resulting in nearly 900 case terminations to date.

   The District of Arizona has been employing visiting judges
to the fullest extent possible. As of this writing, 36 judges
from within and outside the Ninth Circuit have been desig-
nated to assist the court in 2011, serving one-to-four-week
tours in the district. In addition, judges from Alaska and the
Eastern District of Washington have provided ongoing and
long-term assistance to the District of Arizona. With the assis-
tance of the U.S. Judicial Conference Committee on Inter-
circuit Assignments, additional visiting judges will continue
to be recruited from all across the country for the foreseeable
           IN RE APPROVAL   OF THE   JUDICIAL EMERGENCY       3289
future or until the District receives the additional judicial
resources it so desperately needs.

   The Phoenix division is limited in the help it can provide
to the Tucson division because it handles a disproportionate
percentage of the district’s civil filings, in addition to approxi-
mately one-third of the district’s felony cases.

   The District of Arizona and the Judicial Council are jointly
developing a plan to use visiting judge resources in the most
effective manner as possible. However, as will be discussed
in more detail, the physical limitations of the courtroom space
in Tucson and the necessity of scheduling 30 trials each week
severely constrain the ability of the Circuit to provide suffi-
cient visiting judge assistance that will address the criminal
docket in Tucson. The District has already adopted an effec-
tive case management system, so no further efficiencies can
be achieved through any change in court administrative proce-
dure.

  B.   Courthouse Facilities

   Visiting judges are not an adequate short-term fix, nor are
they a long-term solution to this problem. See Tab D, AO
Report at p. 10. The Evo A. DeConcini United States Court-
house in Tucson has only been able to accommodate one vis-
iting judge at a time, and now can accommodate two with
Judge Roll’s courtroom available. The Special Proceedings
Courtroom is unavailable because it is completely utilized for
Operation Streamline proceedings. There are only two other
courtrooms not assigned to a judge, one of which is needed
each day for felony criminal duty (detention hearings in the
morning and initial appearances in the afternoon). Once per
week another district judge sized courtroom is needed for
arraignments. The magistrate judges typically use their
assigned courtrooms both mornings and afternoons each day
for felony change of plea and other proceedings. Thus, the
visiting judges can only be scheduled to courtrooms as they
3290      IN RE APPROVAL   OF THE   JUDICIAL EMERGENCY
become available each day. Any visiting judge presiding in a
civil trial will likely have to do so in courtrooms borrowed
from the bankruptcy court at the Walsh Courthouse down the
street.

   On September 29, 2010, Judge Roll submitted a statement
to Congress concerning the space problems at the Evo A.
DeConcini district courthouse. See Tab F: Testimony re: Evo
A. DeConcini Courthouse in Tucson Division: Hearing before
the Subcommittee on Courts and Policy of the House Judi-
ciary Committee, 111th Cong. (2010) (statement of Chief
Judge John Roll). In those comments, Judge Roll responded
to a GAO Report stating: “No one familiar with the actual sit-
uation in Tucson could reasonably conclude that the DeCon-
cini Courthouse was overbuilt in 2000 or that the Courthouse
has any extra available space. In fact, there is a constant
search for tenants who will leave the Courthouse to free up
additional space.” Id. at p. 9. The GAO’s position that the
Tucson Division did not need more space had assumed court-
room sharing, which isn’t practical in busy border state
courts, and also didn’t take into account the frequent use of
visiting judges. As noted in the 2008 AO Report, the District
of Arizona had inadequate facilities for court operations, and
Tucson’s criminal case filings increased “well beyond the vol-
ume projected” when the courthouse was designed. See Tab
D: AO Report at pp. 11, 21-22 (noting “serious space limita-
tions.”).

   Congresswoman Gabrielle Giffords continues to champion
the District of Arizona’s space crises. In a letter written Feb-
ruary 7, 2011, Congresswoman Giffords’ Chief of Staff wrote
to the Chairmen of the Committee on Appropriations and the
Subcommittee on Financial Service and General Government
requesting that GSA work with the DeConcini courthouse ten-
ants to lease auxiliary space. See Tab G: Letter from Pia Caru-
sone, Congresswoman Giffords’ Chief of Staff, (misdated
February 7, 2010). Because the courthouse is out of space,
and the United States Attorney’s Office lease in the DeCon-
           IN RE APPROVAL   OF THE   JUDICIAL EMERGENCY    3291
cini Courthouse doesn’t expire until 2013, the judiciary would
have to spend an inordinate amount of money to relocate them
pursuant to 41 C.F.R. § 102-85.210.

  C.     Other Methods to Expedite Cases

   While it awaits the judicial resources it needs, the District
of Arizona, with the help of this Judicial Council, will employ
whatever techniques, innovations, and other methods it can to
expedite cases. One such idea that the District of Arizona is
currently evaluating is an offer from the Ninth Circuit’s
Office of the Circuit Mediator for its team of mediators to
help with the caseload burden.

   The mediators would help with only civil cases, and only
those in which both parties are represented by counsel. Once
the district and the Circuit Mediation Office are able to con-
sider and work through the logistics, mediators could travel to
Arizona to conduct mediations in cases that would normally
have been conducted by a magistrate judge, thereby freeing
up some time for the District of Arizona’s magistrate judges
to focus on their caseload. Further, if this option becomes
available, the district judges may suggest mediation to civil
parties in cases not traditionally referred to mediation.

  D.     Additional Resources Needed to Comply with the STA

   The District of Arizona’s congestion may be alleviated in
the long term only if its vacancies are filled and new judge-
ships created. This district does not have the resources to keep
pace with the current prosecution of border-related cases.

    1.    Judgeships and Filling Vacancies

   The Committee on Judicial Resources of the Judicial Con-
ference of the United States recently recommended that the
District of Arizona be authorized five additional judgeships
(four permanent and one temporary). See Tab H: JCUS
3292      IN RE APPROVAL   OF THE   JUDICIAL EMERGENCY
Report dated January 10, 2011 at pp. 5-6. The Committee also
recommended converting a current temporary position to per-
manent status. The Federal Judgeships Act was introduced in
the last Congress (S. 1653 and H.R. 3662) but no action was
taken on the proposed legislation. No judgeships bills have
been introduced yet in the 112th Congress.

   Arizona’s congressional delegation is well aware of the dis-
trict’s crisis: Judge Roll kept the delegation apprised about
increased case filings and judgeship needs, and House Repre-
sentatives Gabrielle Giffords and Ed Pastor recently wrote a
joint letter acknowledging the crisis and supporting the Dis-
trict of Arizona’s request for the suspension of Speedy Trial
Act time limits. See Tab I: Giffords and Pastor letter dated
December 21, 2010. Indeed, Judge Roll went to Representa-
tive Giffords’ “Congress on Your Corner” on January 8,
2011, to discuss this very topic. Judge Roll also advised, on
December 10, 2010, that Senators John McCain and Jon Kyl
also supported the district’s request for a judicial emergency.

   The District of Arizona must await Congress to create the
recommended judgeships, fill vacancies, and provide other
resources. In fact, then Representative Abner Mikva, a spon-
sor of the Speedy Trial Act, recognized that Congress was
responsible to ensure that courts were adequately staffed if it
was to impose the Speedy Trial Act time limits. He acknowl-
edged the need to allow for postponement of the Act’s
requirements if a court had inadequate resources. He wrote in
a prepared statement in 1971:

    Nevertheless, it may well be that even if all the
    judges in a given circuit were putting in a full week’s
    work on the bench, and even if the most modern,
    efficient administrative techniques were employed,
    we would still find that the available resources are
    inadequate to achieve the goal of speedy and fair tri-
    als.
          IN RE APPROVAL   OF THE   JUDICIAL EMERGENCY       3293
    In this event, Section 3164 allows for a postpone-
    ment of the speedy trial requirements of Section
    3161. The (Judicial Conference) is required to sub-
    mit legislation to Congress providing the needed
    additional resources. This places the burden back
    where it belongs — on the shoulders of Congress. It
    will then be up to the representatives of the taxpay-
    ers of America to decide whether we are serious
    enough about crime prevention to expend the money
    and effort necessary to obtain it. In other words, the
    buck will stop here.
See TAB J at p. 261.

   The 2008 AO Report suggested to the Senate and House
Appropriations Committees that additional judgeships were
needed, and that there had been a lag in the appropriations
process, “in that prosecution resources have been provided to
the Executive Branch without considering at the same time
the impact that these additional resources will have on the
Judiciary.” See Tab D, AO Report at p. 17.

  Swiftly filling the three current vacancies in the District of
Arizona will help, but please recall that only one of these
vacancies existed when Judge Roll reported the crisis in
November 2010. Thus, consideration should be given to pro-
posing legislation to create the additional judgeships that the
District of Arizona so desperately needs.

    2.   Other Needed Resources

   The Clerk’s Office staffing is based in large part on the
number of judgeships authorized for a district court. The num-
ber of visiting judges assigned to the court will also increase
the need for additional Clerk’s Office staff, as will the enor-
mous number of border-related cases, and reassignments due
to Judge Roll’s death. We are working with the Clerk of Court
in the District of Arizona to identify its requirements, but note
at this time the following units are particularly strained:
3294      IN RE APPROVAL   OF THE   JUDICIAL EMERGENCY
      (a) Docketing and Calendar Clerks: Tucson’s calendar
clerk is working overtime to keep up with processing all the
motions to continue criminal sentencings and trials. In Janu-
ary, she processed 1,166 continuances (32% more than Janu-
ary 2010). The criminal sentencings, disposition hearings, and
trials set for Judge Roll are being rescheduled before visiting
judges. The district is currently moving sentencings from the
other three active judges to visiting judges. There are over
1,100 proceedings that need to be rescheduled, with noticing
given to U.S. Marshals, Probation, and the attorneys. Further,
during 2010 alone, the clerk’s office processed over 2 million
dollars in CJA vouchers related to Operation Streamline.

      (b) Interpreters: The seven staff interpreters are in court
every day, most of the certified contract interpreters in Tucson
are called in most days, and TIP (Telephone Interpreting Pro-
gram) proceedings take place each day. Any increase in crimi-
nal court activity requiring interpreters will strain the system
and court could be delayed until interpreters become avail-
able. An administrative clerk was recently hired to log let-
ters/documents submitted for translation and assist with the
headsets during Operation Streamline proceedings which
reduced the staff interpreters’ burden.

      (c) Probation Office: This office’s staffing is based pri-
marily on the number of pre- and post-conviction sentencing
reports and the number of post-supervision cases supervised
in the community. The crushing criminal workload is taking
a severe toll on staff. Although the Administrative Office has
provided the Probation Office with supplementary funds,
funding remains insufficient to hire enough probation officers
to support the work of judicial officers. There are 262 on-
board employees, another 16 officers will be hired. The
expected staff size of 278 will still be 21 positions fewer than
what is needed. The increase in cases also presents a need to
increase video teleconferencing capacity with the detention
facility where defendants are held.
          IN RE APPROVAL   OF THE   JUDICIAL EMERGENCY     3295
     (d) Pretrial Services: This office’s staffing is based pri-
marily on case activations (new investigations) and defen-
dants under supervision. Between fiscal years 2009 and 2010,
there was a 40% increase in case actions, growing from
13,145 to 18,424. This is primarily due to the increase in
Operation Streamline prosecutions. Additionally, there was a
22% increase in cases received for supervision during that
same time period, growing from 908 cases to 1,109. Work-
load continues to increase and it has been difficult to keep
pace with staffing. Although recent hires will help alleviate
some of the tremendous workload strain on staff, if workload
continues to increase and funding is reduced, this could com-
promise the quality of investigations and supervision being
provided by Pretrial Services.

      (e) U.S. Marshals Service: Additional resources will be
required to transport pre-trial detainees, and other matters
related to judicial and court security.

    (f) Magistrate Judges: The District will require either
new authorized Magistrate Judge positions or the recall of
Magistrate Judges, or likely both.

  E.   Conclusion

   Although the District of Arizona and the Ninth Circuit
Judicial Council are exploring every available alternative to
alleviate the caseload congestion, the most cost-effective and
reasonable long-term solution is the swift enactment of legis-
lation creating additional judgeships for the district, perhaps
as a stand-alone bill rather than as part of a larger judgeship
bill. In addition, it is hoped that the President and the Senate
expedite the nomination and confirmation process for the
three existing judicial vacancies in the district and any addi-
tional new judgeships created. Finally, budget cuts and/or fur-
loughs should not be considered for the District of Arizona’s
support staff.
3296   IN RE APPROVAL   OF THE   JUDICIAL EMERGENCY
               Submitted by the Judicial Council
               of the Ninth Circuit:

               Alex Kozinski, Chief Circuit Judge
               Procter Hug, Jr., Circuit Judge
               Sidney R. Thomas, Circuit Judge
               Raymond C. Fisher, Circuit Judge
               Ronald M. Gould, Circuit Judge
               Johnnie B. Rawlinson, Circuit Judge
               Audrey B. Collins, Chief District Judge
               Roger L. Hunt, Chief District Judge
               James Ware, Chief District Judge
               Stephen M. McNamee, District Judge
               Robert H. Whaley, District Judge
