LAW AND DISORDER AUGUST 23, 2013
The country’s political class has been engaged in a rare bout of bipartisan self-congratulation of late over the growing consensus around the need for prison reform. Republican governors and state legislators who once championed lock ‘em up policies are now taking a softer line, citing the high cost of prisons and their personal belief in the power of redemption. And when Attorney General Eric Holder came out last week and instructed federal prosecutors to essentially ignore the letter of the law and start seeking shorter sentences for many offenders, there was nowhere close to the outcry one might have expected from the right.
Well, today Holder offered an oblique reminder that all of this good feeling around sentencing reform is pretty hollow unless something is done to restore funding to the nation’s federal public defender offices. Having prosecutors seek somewhat shorter prison sentences is all well and good, but first of all defendants need capable counsel, and our system is coming close to shirking that guarantee today, thanks to the indiscriminate cuts of budget sequestration.
Holder writes in the Washington Post:
In stark contrast to many state defender programs, the federal public defender system has consistently served as a model for efficiency and success. According to court statistics, as many as 90 percent of federal defendants qualify for court-appointed counsel, and the majority of criminal cases prosecuted by the Justice Department involve defendants represented by well-qualified, hardworking attorneys from federal defender offices. Yet draconian cuts have forced layoffs, furloughs (averaging 15 days per staff member) and personnel reductions through attrition. Across the country, these cuts threaten the integrity of our criminal justice system and impede the ability of our dedicated professionals to ensure due process, provide fair outcomes and guarantee the constitutionally protected rights of every criminal defendant.
This is not mere bureaucratic alarmism in Beltway budget games. Reports are pouring in from around the country of the fallout from the cuts. In Delaware, furlough days have essentially canceled the criminal docket for every Friday for the rest of 2013. In Nebraska, a judge threatened to dismiss all low-priority immigration-status crimes because of a lack of representation capacity. And in New York, public defender furloughs resulted in a delay of the criminal trial for Osama bin Laden's son-in-law and former Al Qaeda spokesman, Sulaiman Abu Ghaith.
The cuts are as penny wise and pound foolish as it gets: if a federal public defender is not available to take a case, it is farmed out to a “panel attorney” at a private firm, at a cost that runs as much as 30 percent higher. Then there is the added cost, about $100 per day, of having defendants waiting in pre-trial detention as their cases are delayed.
Finally, there is the risk of losing capable public defenders who decide they just can’t hack a 10 percent pay cut from what is already a salary well below what their peers in the profession earn. (In the Southern District of Alabama, payments to public defenders’ retirement accounts were suspended as a result of the sequester.) One public defender in Houston has taken up a part-time retail job to make up the lost income.
The cuts are scheduled to run more than twice as deep next year unless Congress puts a stop to sequestration in the next budget Armageddon showdown, this fall. Recognizing how dire things are getting, the bipartisan duo of Senators Jeff Sessions, the Alabama Republican, and Chris Coons, the Delaware Democrat, recently wrote to the administrator for the federal court system, asking it to review the cuts and see if there wasn’t some way to save money without taking it out on the public defenders.
Yes, the courts should be doing that. But this isn’t their job. It’s Congress’s. Sequestration needs to stop, for the sake of our federal justice system and the overworked foot-soldiers who keep it going while many of their law school colleagues are fretting about their dwindling chances to become millionaire partners.
Alec MacGillis is a New Republic senior editor. Follow him @AlecMacGillis.