April 18, 2013

Paul L. Friedman and Reggie B. Walton are federal judges on the U.S. District Court for the District of Columbia.

Generally, federal judges should not become embroiled in political disputes. But we feel compelled to speak out because sequestration poses an existential threat to the right of indigent defendants to have publicly funded legal representation — a right that the Supreme Court recognized 50 years ago in its landmark decision in Gideon v. Wainwright.

Before becoming judges, we served as federal prosecutors and as defense lawyers. As the former, we vigorously pursued the prosecution of individuals accused of violating the law. And upon securing convictions, we aggressively sought incarceration when the circumstances warranted. Our ethical obligation as prosecutors was not only to secure convictions but also to ensure that the results we obtained were just. Confidence in the justice of an outcome — especially when the accused loses his or her freedom — is maximized only if the defendant has had competent legal representation.

Our adversarial system works best with competent lawyers on both sides. In federal court in the District of Columbia, where we serve as judges, 90 percent of criminal defendants cannot afford to pay for lawyers. Of those defendants, 60 percent are represented by attorneys employed by the Office of the Federal Public Defender for the District of Columbia; the others are represented by private attorneys approved by the court, provided training by the federal public defender and paid from public funds under the Criminal Justice Act. Because of the demanding selection criteria for defense attorneys, the caliber of representation provided to indigent defendants in D.C. federal courts is outstanding. So when a person represented by one of these attorneys is convicted in our courtrooms, we can impose sentences with a high degree of confidence that the defendant’s best arguments and defenses were explored or presented.

Sequestration has the potential to alter this reality. Federal public defender offices throughout the country stand to have their already tight budgets reduced significantly. The District’s office is poised to furlough each of its lawyers for at least 15 days before the end of the fiscal year on Sept. 30. Also impaired will be its ability to assist private attorneys appointed to represent indigent defendants. Already, we judges are seeing court dates pushed back because lawyers at the federal public defender’s office and the U.S. attorney’s office are being furloughed.

Lawyers in the federal public defender’s office in the District — public servants who earn much less than their private-sector counterparts — must also endure a roughly 12 percent reduction in salary. (The furloughs and salary cuts were poised to be worse, but the executive committee of the Judicial Conference announced efforts this week to help make up the shortfall.) “It’s tremendously demoralizing, even for people who are used to fighting against extraordinary odds,” noted one federal public defender.

This all seems a heavy price, given that cutting the judiciary’s budget will do little to redress the country’s economic crisis. The federal courts’ budget nationwide comprises only 0.2 percent, or about $7 billion, of the $3.7 trillion federal budget, and funding of federal public defenders and Criminal Justice Act attorneys must come from that small share.

“Lawyers in criminal cases are necessities, not luxuries,” the Supreme Court said 50 years ago in Gideon. A federal public defender in Ohio echoed the sentiment this month: “These are not luxury services that we’re providing. These are constitutionally mandated services, and because they’re mandated, someone has to do it.” When it comes to the constitutional right to the effective assistance of counsel, can we really say, “We don’t have the money”?

Alexander Hamilton observed in the Federalist Papers that unlike the legislative branch, which “not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated,” and the executive branch, which “not only dispenses the honors, but holds the sword of the community,” the judiciary “is beyond comparison the weakest of the three departments of power.” Because it has “neither force nor will, but merely judgment,” Hamilton explained, the judicial branch depends on the other branches to fulfill its constitutional mandate.

Particularly as concerns grow about wrongful convictions, it is distressing to see resources so dramatically diminished for those who protect the rights of the poor in the criminal justice system. And the judiciary is virtually powerless to do anything about it. We appreciate that the country’s fiscal problems must be addressed. But the effect of sequestration on the courts severely threatens the rights guaranteed by the Sixth Amendment to those accused of crimes and, in the process, threatens our federal judiciary’s reputation as one of the world’s premier legal systems. This is a price we cannot afford to pay.