Order Code RS22607
February 20, 2007
Court Security Improvement Act of 2007:
H.R. 660/S. 378 in Brief
Charles Doyle
Senior Specialist
American Law Division
Summary
The Chairmen of the House and Senate Judiciary Committees have introduced the
Court Security Improvement Act of 2007, H.R. 660/S. 378 in a form that mirrors
legislation that passed the Senate at the close of the 109th Congress. The bill consists
of four components: adjustments to applicable provisions of criminal law, reenforcement
of the authority and oversight features of the law governing federal judicial security,
grant programs to facilitate increased security for the judiciary of the states, and
miscellaneous provisions whose relation to judicial security might initially appear
remote. This is a brief discussion of the legal background of each component.
This is an abridged version of CRS Report RL33884, Court Security Improvement
Act of 2007: A Legal Analysis of H.R. 660/S. 378, by Charles Doyle, without the
footnotes and citations to authority found in the longer report.
I. Existing Criminal Law : Federal Judges, Officers and Employees. It
is a federal crime: (1) to assault, kidnap or kill a federal judge during or on account of the
performance of his or her duties; or (2) to assault, kidnap, or murder of an immediate
member of a federal judge’s family with the intent to obstruct (or retaliate for) the judge’s
performance of his or her duties; or (3) to assault, kidnap, or murder a former federal
judge or member of his or her family on account of the performance of judge’s duties; or
(4) to threaten, attempt, or conspire to do so. Moreover, the proscriptions are not limited
to federal judges. They protect federal law enforcement officers as well as prosecutors
and in fact protect any federal officer or employee or anyone assisting them, as long as the
threat, assault, kidnaping or killing has the necessary connection (during or on account of)
to the performances of federal duties. The penalties are calibrated according to the
seriousness of the obstructing offense. H.R. 660/S. 378 (§207)1 increases the maximum
1 H.R. 660 and S. 378 as introduced appear to be identical with two exceptions. In Sections 105
and 301, H.R. 660 authorizes appropriations for the fiscal years 2006 through 2011; while in
those same sections, S. 378 authorizes appropriations for fiscal years 2007 through 2011. Since
the bills are virtually the same, we have referred to them as a single bill.

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penalties for voluntary manslaughter in such cases from not more than 10 years to not
more than 20 years and for involuntary manslaughter from not more than 6 years to not
more than 10 years. Several other federal statutes adopt the penalty structure by cross-
reference, so that the amendment extends not only to the killing of federal judges, officers
and employees, and those assisting them but also to manslaughter committed under
several other federal jurisdictional circumstances as well.
Federal Witnesses. Witnesses and potential witnesses for federal judicial,
Congressional and administrative proceedings enjoy somewhat comparable protection
under the federal obstruction of justice statutes which outlaw murder, assaults and threats
intended to prevent or influence a witness’ testimony or to retaliate for past testimony.
The penalties for murder, manslaughter and attempted murder of federal witnesses are the
same as when those crimes are committed against federal officials, but those for assault
and conspiracy are a bit more severe. H.R. 660/S. 378 (§§205, 206) increases the
maximum penalty for witness tampering or retaliation involving the use of physical force
from 20 years to 30 years; those involving the threat of the use of physical force from 10
years to 20 years; and for harassment from 1 year to 3 years.
Section 204 of H.R. 660/S. 378 adds a venue provision to the witness retaliation
offenses in 18 U.S.C. 1513 purporting to permit prosecution of offenses under the section
either in the place where the violation occurred or in place where the proceeding occurred.
The Constitution may confine Section 204’s reach. The Supreme Court has indicated
that the prosecution of offenses other than where one of its “conduct elements” occurs,
poses serious constitutional problems.
Means of Obstruction. Beyond the proscriptions addressed to the use of violence
against federal officials, witnesses and proceedings, there are federal criminal prohibitions
directed at the misuse of firearms, explosives and other dangerous instrumentalities. For
example, one federal statute, 18 U.S.C. 930, outlaws the use of a firearm or other
dangerous weapon in a fatal attack in a federal facility. It adopts by cross reference the
penalties assigned elsewhere for murder, manslaughter, attempted murder or
manslaughter, and conspiracy to murder of manslaughter. The same statute punishes
with imprisonment for not more than 5 years possession or attempted possession of a
firearm or dangerous weapon within a federal facility with the intent to use it there, simple
possession of a firearm or dangerous weapon within a federal facility with imprisonment
for not more than 1 year, and simple possession or attempted possession of a firearm
within a federal courthouse with imprisonment for not more than 2 years.
H.R. 660/S. 378 (§203) amends the proscription for simple courthouse firearm
possession found in Section 930(e) to include possession of other dangerous weapons as
well. The possession with intent proscription already includes coverage of both. The
statute defines “dangerous weapon” very broadly. It has been understood to cover shoes,
belts, rings, chairs, desks, teeth, screwdrivers, and a host of other ordinarily innocent
objects that could be misused to inflict serious injury. When the definition makes it crime
to possess such items in a federal courthouse a crime regardless of how innocently they
are possessed, practical problems may arise. It seems unlikely that the drafters intended
to limit federal courthouse access to the barefoot and toothless. On the other hand, if the
courts read the definition out of the statute for purposes of simple courthouse possession
prosecutions, they may take the small knife exception with it and be left to their own
devices to define what constitutes a dangerous weapon. The same incongruity, however,

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appears to have escaped notice in the case of simple possession of a dangerous weapon
in a federal facility other than a federal courthouse.
Harassing Federal Officials with False Liens. Retaliation against federal
officials in the past has sometimes taken the form of filing false liens and other legal
nuisance actions. These obstructions have been prosecuted under the federal statutes that
prohibit obstruction of the due administration of justice or that prohibit conspiracy to
retaliate against federal officials by inflicting economic damage. These statutes are not
without limitation, however. H.R. 660/S. 378 (§201) makes it a separate federal crime,
punishable by imprisonment for not more than 10 years, to knowingly file a false lien or
similar encumbrance against the property of a federal officer or employee on account of
the performance of his or her federal duties.
Aiding the Intimidation of Federal Officials. It is a federal crime to threaten
to kill, kidnap or assault a federal officer or employee, a retired federal officer or
employee, or a member of their immediate family to impede or on account the
performance of their federal duties. It is likewise a federal offense to threaten a witness
or potential witness in a federal proceeding in order to impede or retaliate for their
performance as a witness. And it is a federal crime to threaten federal grand or petit
jurors in order to impede or influence their service. Moreover, anyone who aids or abets
the commission of these or of any other federal crime is criminally liable to the same
extent as the individual who actually commits them. Liability for aiding or abetting,
however, can only be incurred upon the commission of the underlying offense. Section
202 of H.R. 660/S. 378 makes it a federal crime to make publicly available certain
identifying information such as home addresses, telephone numbers, and social security
numbers of federal officials, employees, witnesses, and jurors (grand and petite) either (1)
with the intent to threaten, intimidate, or incite a crime of violence against such
individuals or members of their immediate families, or (2) with the intent and knowledge
that the information will be used for such purpose. Offenders are subject to a term of
imprisonment for not more than 5 years. There is no requirement that the victims be
targeted on account of their federal or family status, that any incited violence be
imminent, or that the information be publicly unavailable otherwise. First Amendment
considerations may restrict the proposal’s full sweep.
II. Implementation of Judicial Security: Responsibilities of the Marshals
Service. The United States Marshals Service is located in the Department of Justice.
The Director of the Marshals Service and the Marshals for each of the 94 judicial districts
and for the Superior Court of the District of Columbia are appointed by the President,
with the advice and consent of the Senate. Marshals serve four year terms at the pleasure
of the President. Marshals are responsible for the security of the U.S. District Courts,
U.S. Courts of Appeal and Court of International Trade sitting in their districts, and for
the execution of warrants, subpoenas and other process of those courts. The Marshals are
also responsible for the protection of witnesses, the asset forfeiture program, and the
arrest of fugitives from federal law.
Additional Authorizations. Section 105 of H.R. 660/S. 378 calls for $20 million
in addition authorization of appropriations for each of fiscal year through 2011 in order
to hire additional marshals to provide security for federal judges and assistant United
States attorneys and to augment the resources of the Marshals Service’s Office of
Protective Intelligence. In a related matter, the President’s budget for FY2008 indicates

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that the Administration will request additional appropriations for the Marshals Service of
$25.7 million “for investigating threats against the Judiciary, high-threat trial security,
judicial security in the Southwest Border district offices, and enforcement of the Adam
Walsh Child Protection and Safety Act.”
Security for Tax Court Activities. Section 104 of H.R. 660/S. 378 expands the
Marshals Service protective responsibilities to “any other court as provided by law.” It
also bolsters the authority to serve the Tax Court, the one court that appears to fit the “any
other court as provided by law” description. Section 7456 of the Internal Revenue Code
ends with the instruction that, “The United States marshal for any district in which the
Tax Court is sitting shall, when requested by the chief judge of the Tax Court, attend any
session of the Tax Court in such district.” The bill amends the section to include an
explicit instruction to provide security for the Court, its judges, personnel, witnesses, and
other participants in its proceedings.
Coordination with the Judicial Conference. The Judicial Conference of the
United States oversees the rules and conditions under which the federal courts operate.
Section 101 of H.R. 660/S. 378 amends the organic statutes for the Marshals Service and
the Judicial Conference to ensure regular consultation between the two concerning
judicial security, the assessment of threats against members of the judiciary, and
protection of judicial personnel.
Safety of Federal Prosecutors. Like federal judges, federal prosecutors have
been the subject of both threats and plots to kill them. Neither have express authority to
carry firearms in the performance of their duties. Marshals and deputy marshals, on the
other hand, do have such express authority. And prosecutors, at least, can be deputized
as deputy marshals, a process that carries with it the authority of the office, i.e., the
authority to carry a firearm. Section 401 of H.R. 660/S. 378 directs the Attorney General
to report to the House and Senate Judiciary Committees within 90 days on the security of
federal prosecutors including firearm possession matters.
Redacted Financial Disclosure Statements. The Ethics in Government Act
requires federal judges, Members of Congress, and senior officials in the legislative,
executive and judicial branches to file publicly available financial disclosure reports.
Concerned that information contained in the financial disclosure statements of federal
judges might be misused in efforts to threaten or intimidate them, Congress temporarily
authorized the redaction of certain information from the financial disclosure statements
of certain federal judges in a provision that has since expired. Sections 102 and 103 of
H.R. 660/S. 378 temporarily revives the provision until December 31, 2009, permits
concern for the safety of a judge’s family as well as that of the judge to trigger redaction,
but requires more explicit criteria in related reports to Congress.
III. Grants to the States: Witness Protection. Part H of the Violent Crime
Control and Law Enforcement Act of 1994 authorizes community-based grants for state,
territorial, and tribal prosecutors. Appropriations were last authorized for FY2000.
Section 301 of H.R. 660/S. 378 amends Part H to include state witness protection
programs and authorizes appropriations for Part H of $20 million for each fiscal year
through 2011.

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State and Tribal Court Security. Sections 515 and 516 of Title I of the Omnibus
Crime and Safe Streets Act of 1968 authorizes discretionary Bureau of Justice Assistance
Correctional Options grants. Section 2501 of Title I authorizes a matching grant program
to purchase armored vests for state, territorial and tribal law enforcement officers. Section
302 of H.R. 660/S. 378 amends Sections 515 and 516 to permit 10 per cent of the funds
appropriated for grants under those sections to be available for grants to improve security
for state, territorial, or tribal court systems with priority to be given to those
demonstrating the greatest need. To accommodate the new allotment, the percent of
appropriations available for corrections alternatives would be reduced from 80 percent to
70 percent of the funds appropriated. Section 320 also amends Section 2501 of the
Omnibus Crime Control and Safe Streets Act to include matching grants for the purchase
of armored vests for state and territorial court officers. Section 302 further allows the
Attorney General to require that state, territorial or tribal applicants for grants under
programs administered by the Department of Justice show that they have considered the
security needs of their judicial branch following consultation with judicial and law
enforcement authorities.

IV. Miscellaneous Provisions: Sentencing Commission Procurement
Authority. The United States Sentencing Commission was established in 1984 as an
independent entity located within the judicial branch. Its purpose is to promulgate
sentencing guidelines for use by federal courts in criminal cases. Those guidelines, once
binding upon the courts, are now simply advisory, although the courts must continue to
consider them and the guidelines continue to carry considerable persuasive force. The
Commission may enter into contracts in fulfillment of its responsibilities.
As a general rule, appropriated funds are available for obligation under contract or
otherwise only during the fiscal year for which they were appropriated. There are several
exceptions to the general rule. For example, the heads of executive agencies may contract
for services that begin in one fiscal year and end in the next. They may also enter into
multi-year contracts. And with sufficient security, they may make advance payments on
contract obligations to be fulfilled at a later date. In the legislative branch, the
Administrative Office of the United States Courts enjoys similar authority. Section 501
of H.R. 660/S. 378 temporarily grants the Sentencing Commission comparable authority.
Life Insurance Costs. When the Office of Personnel Management announced life
insurance premium increases for District and Appeals Court judges in 1999, the judges
and the Administrative Office objected that the increase would operate as a disincentive
to service on senior status by retired federal judges. The appropriations legislation for that
year included a provision now found in 28 U.S.C. 604(a)(5), “The Director ... shall ... pay
on behalf of Justices and judges of the United States appointed to hold office during good
behavior, aged 65 or over, any increases in the cost of Federal Employees’ Group Life
Insurance imposed after April 24, 1999, including any expenses generated by such
payments, as authorized by the Judicial Conference of the United States.” Similar
provisions have been made for judges of the Tax Court and the Court of Federal Claims,
judges who serve 15 year terms and upon retirement may be recalled to perform judicial
duties for periods up to 90 days a year. Section 502 of H.R. 660/S. 378 makes this
provision applicable to bankruptcy judges, magistrate judges, and district court judges in
Guam, the Northern Mariana Islands and the United States Virgin Islands, none of whom
enjoy life tenure but may be recalled to service following retirement.

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Assignment of Senior Judges. The chief judges of the various United States
Courts of Appeal or the various circuit judicial councils may designate and assign senior
judges to perform judicial duties within the circuit. As a general matter, senior judges
who are designated and assigned enjoy all of the powers of the court, circuit or district to
which they are assigned, except for the power to appoint any person to a statutory
position. Federal statutes describe the appointment authority for several positions in the
judicial branch. Bankruptcy judges are appointed by the circuit Court of Appeals, who
also appoint their clerks and librarians; circuit judges appoint their own law clerks and
secretaries; and circuit chief justices appoint senior staff attorneys. Magistrate judges are
appointed by the district court judges, who also appoint their clerks and court reporters;
individual judges appoint their own bailiffs, law clerks and secretaries. Beyond the
explicit exceptions and the general rule notwithstanding, there are several powers that
only a judge in “regular active service” and not a senior judge may exercise. Thus, the
decision to present an appeal to all of the judges of a particular circuit (to grant a hearing
or rehearing en banc) is made by a majority vote of the judges of that circuit who are in
regular active service. A senior judge may participate in an en banc appeal only if he or
she was a member of the panel that initially decided the case being heard en banc. Senior
judges may serve as well as members of the Judicial Conference of the United States, the
rule propounding body for the federal courts, and as members of the judicial councils for
their circuits, the local rule making authority for the circuit, but the number of members
of such councils and their terms of service are determined by a majority vote of the judges
in regular active service in the circuit.
Section 503 of H.R. 660/S. 378 amends 28 U.S.C. 296 to provide that senior judges
when designated and assigned to the court to which they were appointed, shall have all
the powers of a judge of that court, including participation in appointment of court
officers and magistrates, rulemaking, governance, and administrative matters. The
amendment appears to override the limitations on both en banc and appointment
participation.
Appointment of Magistrates. Magistrate judges are appointed pursuant to a
statute that declares that, “the judges of each United States district court and the district
courts of the Virgin Islands, Guam, and the Northern Mariana Islands shall appoint United
States magistrate judges...” 28 U.S.C. 631(a). H.R. 660/S. 378 amends this language to
add, after “the Northern Mariana Islands”, the parenthetical “(including any judge in
regular active service and any judge who has retired from regular active service under
Section 371(b) of this title, when designed and assigned to the court to which such judge
was appointed)”. The amendment may present an interpretative challenge. The problem
is that only United States district court judges retire under Section 371(b); the judges in
the Virgin Islands, Guam and the Northern Mariana Islands retire under Section 373. The
amendment should probably be understood to do no more than to add senior United States
district court judges those who may retire under Section 371(b) to the core of judges who
may participate in the decision to appoint magistrate judges for their districts.
Authorization of the Office of Government Ethics. The authorization of
appropriations for the Office of Government Ethics expired at the end of FY2006.
Section 505 of H.R. 660/S. 378 revives the authorization of appropriations through
FY2011.

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