The lawyers who represent poor people charged with federal crimes across the country say they already face an unfair fight when they head into court against the resources of the Justice Department — and that’s only going to get worse if draconian budget cuts occur as planned next year.
As a result of the automatic cuts known as sequestration, federal public-defender offices have recently been told they must reduce spending by 14 percent for fiscal year 2014, on top of the roughly 9 percent this year.
The result, the lawyers say, will be drastic layoffs for public defenders, expensive case delays and costly appeals — all for nothing, as pricier private attorneys are expected to step in to fill the void at government expense.
“Absent some immediate action, federal defenders will begin the process this summer of laying off between a third and half of their staff,” said a memo prepared by several federal public defenders. “They will begin closing many offices. The cuts will result in irreparable damage to the criminal justice system, and paradoxically, greater expense to the taxpayer as indigent defendants are increasingly assigned private counsel.”
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Congress provides about $1 billion for the representation of criminal defendants who can’t afford lawyers. The money is split evenly between a federal public-defender program, established in 1970, and private attorneys, who are generally paid $125 an hour to represent defendants who can’t use public defenders because of conflicts of interest or other reasons.
Because the right to counsel is a constitutional guarantee, the federal defenders have no control over their workloads. When someone is charged and needs a lawyer, they’re appointed. If public defenders have to take fewer cases because of staffing cuts that work will fall to the private lawyers — who cost substantially more than full-time federal defenders, studies have shown.
“There are no actual savings here,” said Tom Hillier, the chief federal public defender in Seattle. “Sooner or later Congress is going to have to come to grips with the fact that they’re destroying institutions, and they’re not saving money.”
Under this year’s cuts, some public defenders lost their jobs and the rest are taking up to 20 days of unpaid leave. The federal public-defender’s office in Los Angeles is simply closing for three weeks in September. The chief federal public defender in southern Ohio laid himself off.
In New York, the trial of Osama bin Laden’s son-in-law was delayed because his public defenders had to take furloughs, and in Boston, the lawyers for the surviving marathon-bombing suspect have had to represent him amid unpaid time off.
When staffing cuts force public defenders to ask for delays in cases or withdraw from cases altogether, it means defendants have to spend more time in pretrial custody — increasing jail costs and raising concerns about the right to a speedy trial, the defenders’ memo noted. The offices also have cut spending on training, travel, expert witnesses and case investigators — all of which can affect the quality of representation and give rise to appeals.
Next year’s required cuts are even starker. For example, in Seattle, Hillier said, he will have to lay off nine employees or his entire office will have to take more than nine weeks off unpaid.
“We’re headed to a huge fiscal crisis,” said Seattle U.S. Attorney Jenny Durkan. “If the federal public defender closes shop, we can’t do our work. Everybody we charge, they’re entitled to a lawyer.”
“The fact that we are not fully funded makes it an unfair fight in court,” Hillier said. “The government has full resources and full staff, and we don’t.”
Nationally, more than 900 of the public defender program’s approximately 2,700 staff members are expected to be cut over the next two years. Defenders in more than 20 states are planning to close offices. Because it costs money to lay people off, in terms of severance, benefits and unemployment insurance claims, many offices have to lay off more than a third of their staffs to reach the 23 percent reduction.
Several federal defenders have argued that the cuts could be eased by delaying payments to private attorneys until the next fiscal year, but U.S. District Judge Robert Lasnik of Seattle said that wasn’t a good option. Lasnik serves on the Executive Committee of the U.S. Judicial Conference, a group of seven judges that oversees the budget for public defense.
“It’s almost like deficit spending,” Lasnik said. “That only works if we get money to replace the money we’re spending.”