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 suffered 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."
Congress provides about $1 billion for the representation of criminal defendants who can't afford their own lawyer. The money is split evenly between federal public defender program, which was established in 1970, and private attorneys, who are generally paid $125 an hour to represent defendants who can't be represented by the 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 due to 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 defender in southern Ohio laid himself off.
In New York, the trial of Osama bin Laden's son-in-law was delayed because the public defenders who were representing him had to take furloughs, and in Boston, the lawyers for the surviving marathon bombing suspect have had to do it 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 have also cut spending on training, travel, expert witnesses and case investigators — all of which can affect the quality of representation and give rise to appeals.
The cuts being required next year are even starker.
—In Seattle, Hillier said he will have to lay off nine employees or his entire office will have to take more than nine weeks of unpaid time off.
—In San Francisco, Federal Public Defender Steven Kalar said he will have to close at least one branch office — possibly Oakland, San Jose, or both — and stop working on certain types of complex cases.
—In the District of Columbia, Federal Public Defender A.J. Kramer said that his office would have to withdraw from a large number of cases. He's already down 10 positions, out of 35 he would normally be authorized to fill.
"We're headed to a huge fiscal crisis," said Seattle U.S. Attorney Jenny Durkan, whose office has added lawyers recently but also remains below historic staffing levels. "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 one-third of their staff to reach the 23 percent budget reduction.
Several federal defenders have argued that the cuts could be eased by delaying payments to the 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."
He added: "This is not a defense-versus-prosecutors thing, or judges-verses-defense thing. The system doesn't work if any one of the legs of the stool is not able to hold things up. We have a need for the funding of federal defenders."
To ease the burden on the federal defenders, the Judicial Conference might have to reduce rates for private attorneys appointed to represent poor defendants, even though "they don't make very much as it is," Lasnik said.
That could result in experienced private lawyers declining to take cases, some attorneys argue.
The only real solution, said U.S. Sen. Patty Murray, D-Wash., is to replace sequestration, which was supposed to be so unpalatable that Congress would never let it happen.
"From children getting cut from Head Start, to workers being furloughed at our military bases, to the significant cuts federal public defenders across the country are facing and so much more," she said, "the impacts of sequestration continue to grow in our communities, and it's only going to get worse."