Budget cuts ‘threaten’ justice for the poor; defenders furloughed, but not prosecutors

Joe Davidson
Columnist August 20, 2013

The federal court program that provides lawyers for indigent criminal defendants is itself doing pretty poorly these days.

Federal budget cuts known as sequestration are taking a toll on lawyers representing those too poor to hire their own counsel. That means, of course, that it is ultimately the needy defendants and justice itself that are threatened.

Joe Davidson writes the Federal Diary, a column about the federal workplace that celebrated its 80th birthday in November 2012. View Archive

Federal public defenders are being furloughed. When they can’t handle cases, lawyers in private practice are assigned to indigent defendants. But now, the federal courts are cutting the already low rate paid to the private lawyers.

“Sequestration threatens the ability of the judiciary to fulfill a fundamental right guaranteed to all individuals under the Sixth Amendment and the Criminal Justice Act: the right to court-appointed counsel for criminal defendants who lack the financial resources to hire an attorney,” Julia S. Gibbons, budget committee chairwoman for the Judicial Conference of the United States, told a Senate hearing last month. “Approximately 90 percent of federal criminal defendants require court-appointed counsel. Funding cuts are threatening that very right, a right that has been a bedrock principle of our criminal justice system for half a century,” she said.

Federal defenders faced furloughs of up to 20 days, but it varied among the 81 local offices and many had fewer unpaid days. Starting next month, pay for the private lawyers, known as “panel attorneys,” will drop from $125 an hour to $110. In capital cases, the fee will fall from $178 to $163. In addition, four weeks of their pay due in fiscal 2014 will be pushed into 2015.

No one weeps for those earning $110 an hour when so many people remain out of work. But many lawyers can make much more from well-heeled clients. More importantly, the pay cuts and the furloughs can hurt the administration of justice and that should insult everyone’s notion of fair play. Federal prosecutors have not been furloughed.

“Yes, of course, it is unfair that we are laying off and furloughing while the U.S. attorney’s offices are not,” said David Patton, a federal defender in New York. “The funding deck is stacked against us in the best of times. It has now reached absurd proportions. And in a supposedly adversarial system, those funding disparities do real damage to the justice system and to people’s lives.”

Despite the cuts, Patton said, “We will not allow our clients to be harmed whenever we can avoid it. If we cannot properly handle a case, we will ask to be relieved and for private counsel . . . to be appointed. We have done this in about five cases. Of course, it points out the absurdity of cutting our budget — it only increases the overall costs of indigent defense because the hourly rates paid to those lawyers will be more expensive than our services.”

The budget cuts can affect more than money in a lawyer’s pocket.

“When there are fewer resources for attorneys, investigators, experts and the other costs associated with defending someone charged with a crime, quality has to suffer,” said Pete Schweda, a panel attorney in Spokane, Wash.

It’s not just the defense lawyers who are complaining.

Judges also are very upset.

Chief judges of 87 federal district courts wrote to Vice President Biden last week, in his role as president of the Senate, citing a litany of cuts that imperil the judicial process.

Budget cuts “have forced us to slash our operations to the bone,” the judges wrote, “our constitutional duties . . . and the quality of the justice system will be profoundly compromised by any further cuts.”

Because of sequestration, the judges said:

●Clerks of court and probation and pretrial services offices will cut as many as 1,000 staffers.

●Current staffing is at its lowest level since 1999 “despite significant workload growth.”

●Courts had 4,500 furlough days through June and expect an additional 4,100 through September.

●“Security at courthouses has suffered” as hours for court security officers are reduced and sequestration means less money for security equipment.

“But the most significant impact of budget cuts and sequestration thus far has been the reduction in funding for Defender Services,” the judges said.

That situation is exacerbated because “the caseload is driven entirely by the prosecutorial policies of the Department of Justice,” the letter said, and “the Department of Justice is not furloughing staff.”

This leaves the scales of justice out of balance.

“Remember, some of these people [defendants] are truly innocent,” Schweda said. “If you cut too much, the system becomes one that exists not for justice, but to promote plea mills as a way to expedite the process.”

Twitter: @JoeDavidsonWP

Previous columns by Joe Davidson are available at wapo.st/JoeDavidson.

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