So, a few months ago, I wrote a post about sequestration in which I said, basically, bring it on!
I had a couple of reasons for saying that. First of all, from my libertarian point of view some of the threatened cuts were pretty awesome. The Obama administration was threatening to cut federal grants to law enforcement, the TSA, Customs and Border Protection, and especially the DEA. Lower federal spending through laying off government thugs. What’s not to like?
Second, I wanted to call Obama’s bluff. In addition to the law enforcement cuts, his press release also claimed that it would cut things like support for economically disadvantaged families, special education, homeless veterans and the mentally ill, and vaccination programs for children. It seemed to me that Obama was threatening to take hostages:
Let’s put that in perspective. At the beginning of the year, the federal government unceremoniously (and with surprisingly little debate or media coverage) increased payroll taxes by 2 percent. And all over America, millions of middle-to-low income-families — anybody with earnings below the cap, really — quietly learned to live with a 2 percent cut in the family budget.
But now when the government is asked to cut its budget by about the same percentage, they say they’ll have to cut programs that help women and children, the sick and the disabled. It’s hard to interpret this as anything other than a threat.
Third, I didn’t really think it would happen. Actually, the deadlines were only a few days away, so I know the sequestration would technically kick in, but I figured Congress would do another deal to kick the can down the road for a few months, a strategy that has always served them well.
I was wrong about that last part. The sequestration happened, and so far it hasn’t been fixed. We’re going down that road, maybe with few changes until the next election.
It turns out, however, that all those dire predictions neglected to mention one very important item that would be hurt by sequestration, the federal public defenders program:
Largely out of the public view, defenders and judges say, the federal public defenders system is buckling under the effects of the $85 billion across-the-board cuts known as the sequester, threatening the integrity of the criminal justice system, which guarantees the right to a court-appointed lawyer for those who cannot afford one…
The 81 defender offices across the country, which represent 60 percent of all criminal defendants in the federal court system, have already had their budgets cut by 10 percent because of the sequester and other reductions this year and could face up to a 23 percent cut in 2014. Additional cost-cutting measures may result in a smaller cut, around 10 percent. Although the cuts are widespread across the government, public defenders say the reductions are hitting them particularly hard. Unlike other federal programs, the public defenders say, they have little fat to trim since most of their costs are for staff and rent. Just 10 percent of their budgets are devoted to expert witnesses, investigative costs and travel.
Crap. I should have seen that coming.
The amount of sequestration in 2013 is actually a small fraction of the government budget — 1 or 2 percent, depending on how you count — and it doesn’t get that much larger in 2014, so cuts of this magnitude are the result of deliberate decisions to concentrate the damage in one program. You just know that unscrupulous upper managers are using the budget squeeze as an excuse to get rid of people and programs they don’t like, so I guess I shouldn’t be surprised that they’re trying to gut the federal defender program — that only helps the bad guys avoid justice, right?
It sounds like things are pretty bad:
Already, federal defenders said they have cut back on staff members and their workloads.
Almost all offices have had to furlough or lay off workers. In Virginia, a chief public defender said he had to lay off five lawyers, about 10 percent of his staff. Two other staff members retired to help save the office money, while another voluntarily went on active duty in the military.
In Delaware, public defenders had to take 15-day furloughs. In Illinois, a public defender’s office cut two lawyers and a computer technician.
Michael S. Nachmanoff, a federal public defender for the Eastern District of Virginia, who has represented Somali pirates and illegal arms and drug dealers, said he faced a difficult decision this year when he had to choose between paying staff members or continuing a case without adequate resources.
“It really wasn’t much of a choice,” Mr. Nachmanoff said. “I’m not going to compromise the quality of a case to pay people.”
This is a terrible loss. The federal public defender program had a good reputation, built up over decades by a lot of dedicated people doing a lot of painstaking work. It will be a shame — and a threat to our freedom — if the public defense program were to end in ruin.
Scott Greenfield explains:
The emasculation of senior staff at federal defenders’ offices means that the strong cadre of lawyers will be gone, with only a barebones and less experienced (and less well-paid, and more capable and willing to work for a pittance of their pittance salary) staff remaining. When and if things turn around, it will take years before staffing is back to adequate strength to handle its caseload, and even more years before that staff gains the experience to do its job as well as it had in the past.
Of course, if the public defenders are unable to keep up with the work due to budget cuts, there is of course an obvious solution to this problem: Reduce prosecutions. But that will never happen. You might think the sequestration cuts in the Justice Department would naturally reduce the volume of cases they bring, but politicians love law-and-order too much:
While federal defenders have had to cut back on the number of cases they handle, the Justice Department is increasing the number of cases it brings to court and also hiring staff.
Its annual budget is nearly $28 billion, compared with $1 billion for the federal public defenders program. Since both Republicans and Democrats were reluctant to hurt federal law enforcement, Congress granted the attorney general broad authority to shift money from other programs to pay for salaries and avoid furloughs.
As a result, the F.B.I., federal marshals, United States attorneys and other offices have been spared the steep job cuts predicted at the beginning of the sequester.
Still, you’d think the system would be self-regulating because of this:
The result, said lawmakers, judges and public defenders, are court delays that might violate defendants’ rights to speedy trials and could lead to the dismissal of criminal cases.
Everyone has a right to a defense, right? It takes two to tango. So if the federal defenders refuse to take more cases than they can handle, the courts will be unable to proceed, forcing prosecutors to either accept dismissals or pick and choose more carefully when they decide to charge people. Maybe that will lead to more funding for federal defenders.
Unfortunately, it doesn’t work that way. When the public defender is unable to take a case, the courts can appoint private lawyers under the Criminal Justice Act (CJA) to do the job. Although some excellent lawyers take CJA appointments out of a sense of duty, there are reasons to believe that the CJA program as a whole provides a less effective defense than full-time federal defenders. Also, following in the fine tradition of government contracting everywhere, the CJA lawyers actually cost more per hour than full-time federal defenders.
The Judicial Conference of the United States, which is responsible for the criminal defense budget, is dealing with that issue pretty much like any company facing cash flow problems:
The judicial conference announced on Aug. 16 that it would try to keep staffing of the public defenders program at current levels by delaying payments to court-appointed private lawyers and reducing by $15 an hour the rate at which they were paid.
Between the decreased fees and matters of principle, this is going to cause good lawyers to quit the program. Mark Bennett offers this explanation:
But the criminal-defense bar…gets psychic value from doing what it does.Even though CJA rates were already below market rates for good lawyers, good lawyers took appointments in federal court because it provided other satisfactions, among them the pleasure of helping those whom God had forsaken, society’s strays.
I believe, as a matter of principle, in calling bluffs. Criminal-defense lawyers ought to quit the CJA panel en masse, because gutting the defense to preserve the prosecution is wrong, and because the only way for the lawyers to keep the government from cutting their pay and laying off PDs is by refusing to accept it. If the government wants to prosecute people, it must pay to defend them; if it’s not willing to do so it should be forced to forgo prosecution.
There are plenty of strays I can help without being appointed to help them, so I am resigning from the CJA list.
He’s probably not the only one.
At a time when there are so many criminal laws that some lawyers estimate the average American commits three felonies a day, and our justice system already has a larger percentage of our population in prison than any other country, it’s hard to believe these budget cuts are anything other than a deliberate attempt to dismantle the public defense system and give prosecutors even more control over our lives.
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