In Germany, between the end of World War I and the beginning of the Nazi regime, a criminal defense lawyer named Max Hirschberg confronted right-wing reactionaries in court, including one Adolf Hitler in a dramatic case in 1929. Some three years later, at the end of 1932, just months before Hitler came to power, Hirschberg published an article in a small democratic journal. He protested the recent misuse of emergency decrees for stripping defendants of certain basic rights. The excuse, Hirschberg pointed out, was budget constraints.
Today in the United States, the federal sequester, the across-the-board cuts in federal spending that took effect March 1, has become a frontal assault on the Sixth Amendment right to counsel. For years I have been representing defendants as an employee of Federal Defenders of New York, Inc., the public defender office in New York City for those who cannot afford an attorney. But my office, like its counterparts elsewhere, is being gnawed to the bone in the jaws of the sequester.
The irony is that 50 years ago this spring the U.S. Supreme Court decided Gideon v. Wainwright, holding that even poor defendants charged with felonies are entitled to lawyers. The struggle then turned to putting that lofty principle into effect. The approach of paying a scattering of private attorneys, one by one, case by case, could not keep up with the need. It was too disorganized and expensive. It invited too much incompetence and corruption. The best way to provide good representation efficiently has been to set up institutions of lawyers. The federal government devised the paradigm, funding federal defender offices around the country.
The sequester is not just financially squeezing the federal defenders, who already earned far less than, say, first year associates at major law firms. It is destroying any semblance of justice. The body blow is to the defense, not the prosecution. Take the example of the Southern and Eastern Districts of New York, which comprise the federal trial courts for New York City and some surrounding counties. The prosecutors in the two U.S. Attorney Offices have always vastly outnumbered the defense lawyers in the federal defender office.
The head count alone captures the picture, with 280 prosecutors versus 38 Federal Defender lawyers, who represent approximately 40 percent of the New York metropolitan area’s federal criminal defendants, a ratio of three to one. The sequester, slashing our office’s budget for the next six months by 20 percent, is forcing these 38 defense lawyers to take an average of six weeks of furlough, more than one day a week. The alternative was laying off one third of the lawyers. As of now, the prosecutors will take no furlough.
No wonder Southern District Judge Lewis Kaplan expressed such concern at my colleagues’ request to delay the trial of Sulaiman Abu Ghaith, a son-in-law of Osama bin Laden. "It’s extremely troublesome," Kaplan said, "to contemplate the possibility of a case of this nature being delayed because of sequestration. Let me say only that—stunning."
The voice of a professor on my first day of law school echoes in my ears: "Ours is an adversarial system! Ours is an adversarial system!" The underlying assumption was that adversaries resolve disputes before neutral judges on a fair playing field. How does that work now? Three prosecutors to one defense lawyer? Five days to four?
Besides the skewed ratio of prosecutors to defense lawyers, judges cannot preside neutrally over criminal cases with a hamstrung defense. Judges depend on defense lawyers, who help people in distress make choices, whether to risk trial in the hope of an acquittal or to plead guilty with the aim of a slightly shorter sentence. (The vast majority plead guilty.) If defense lawyers lack time to advise their clients, court proceedings will drag on or degenerate into chaos. If defense lawyers lack the resources to prepare their cases, their mistakes will resurface years later.
That is why U.S. Supreme Court Justice Stephen Breyer recently said that slashing Federal Defender budgets would ultimately be more expensive than providing a defendant with "a decent lawyer in the first place." Neutral judges can adjudicate fairly only in orderly proceedings with opposing arguments.
The adversarial system in criminal justice acknowledges that prosecutors have no monopoly on the truth, logical reasoning, or good judgment, and the Sixth Amendment right to counsel assures individuals in trouble some support against the powers of the state. The principle of Gideon is that the Sixth Amendment announces not just a privilege for the rich, but a right for all, including the poor. The only fair, effective and efficient way to secure that right is by investing money in institutions like Federal Defenders. This institutional structure has taken years to build. Ax it at the knees and it will collapse in no time.
Then the promise of Gideon will become the shameful memory of a principle that was beginning to work until its miserly abandonment. God, in infinite wisdom, set aside the seventh day as one for rest, but the Founding Fathers, with good practical sense, did not envision the right to counsel on furlough. When Max Hirschberg cried out in late 1932 for preserving fairness in criminal defense, he did not know that Germany had only to await the imminent emergence of the Nazi regime for delivering the finishing blow to independent defense lawyers. An open question is whether America will cripple criminal defense in the midst of a democracy.
Douglas G. Morris has been an assistant federal defender with the Federal Defenders of New York, Inc. since 1989. He is the author of "Justice Imperiled: The Anti-Nazi Laywer Max Hirschberg in Weimar Germany," University of Michigan Press, 2005.