With Congress poised for a budget fight in the next two weeks, lawyers working in the federal public defender system came to Capitol Hill on Tuesday to make their case for restoring nearly $51 million cut from the system this year.
“We are in crisis,” Cait Clarke, chief officer in the U.S. courts’ Office of Defender Services, said during a panel discussion attended by Representatives John Conyers (D-Mich.) and Bobby Scott (D-Va.). The federal defenders could absorb another 10 percent budget cut during the fiscal year that begins on October 1, according to the National Association of Criminal Defense Lawyers, which organized the discussion.
The lawyers laid out some of the main arguments they hope would convince Congress to restore the budget cuts from March, called sequestration. They told stories about cases, work days lost to furloughs and the announcement that on Tuesday the government stopped paying Criminal Justice Act panel attorneys. That law provides authorizes the payment of private attorneys to provide indigent defense.
One main point: Budget cuts to the federal public defenders don’t save money. Defendants who can’t afford an attorney are entitled to a government-paid attorney, whether a public defender or private CJA panel attorney, according to a talking points list the group released.
There has been no indication the U.S. Department of Justice would start slowing down prosecutions, and inadequate representation for defendants would result in costly appeals and post-conviction proceedings, the defenders said.
David Patton, executive director of Federal Defenders of New York, told two stories about how the budget cuts could harm clients. In the first, a defendant had a robbery charge dropped because Patton’s office’s lawyer and investigators found an alibi in the form of surveillance video of the defendant.
Given that the sequestration has meant three weeks of furloughs for his staff just this summer, “I don’t know if that happens today,” Patton said. “I don’t know if our investigators get to that furniture store before the video was erased.”
In the second case, an Iraq war veteran is being charged with a crime for a shooting five years ago in Iraq that at the time was deemed accidental. Patton said his office has no money to track down witnesses in Iraq, but that neither would a CJA attorney.
“We’re going far beyond anything that is reasonable and rational and allows us to do our work effectively,” he said.
Another main argument: Not restoring the rates for appointed private attorneys would compound the crisis. The CJA panel attorneys have absorbed a rate cut of $15 per hour—from $125 to $110—effective on September 1 and set to continue next year. The federal courts had decided to do that instead of cutting federal defender budgets any more, and have asked Congress to restore payments to the attorneys.
Chip Frensley, the national CJA panel representative, said that the best and brightest attorneys would conclude they can’t afford to continue to do this work, meaning that judges won’t be able to appoint qualified attorneys.
Frensley described a trial he started on August 27 in which he and his defendant faced two prosecutors, a paralegal, an FBI agent and two additional federal law enforcement agents.
Then, less than a week later, while the trial was still going on, the hourly rate reduction for CJA panel attorneys took effect. “It got me to thinking about the gross inequities in our system. There is not parity in the system,” Frensley said. “That is something that can only be addressed through funding.”
The House Appropriations Committee approved a fiscal year 2014 appropriations bill that would provide $6.5 billion for the courts, roughly the same level as in 2013, before sequestration hit. A Senate appropriations subcommittee approved $6.7 billion, an increase of $148 million or 2.2 percent above the fiscal year 2013 level. The fiscal year begins on October 1.
Still, federal courts officials fear disagreements among the House, Senate and White House over other budget priorities could lead to yet another partisan battle in Congress that ends with a continuing resolution that either retains the sequestration cuts or otherwise keeps the federal courts budget flat.
During the panel discussion, Scott said the problems facing the federal public defenders now are the inevitable result of tax cuts, and suggested a drastic legal tactic if the money is not restored.
“It’s because you are here we actually have a chance of actually getting some money back on the table. And if not, I would assume that the defense community will exercise the constitutional rights on behalf of their clients and tell the judge they just can’t try the case,” Scott said.
“We’re not going to take the case. We’re not going to give inadequate defense, and in some way make sure that those who are having their rights challenged have a fair trial and that includes fair funding for indigent defense,” Scott said.
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Contact Todd Ruger at firstname.lastname@example.org.