Some federal agencies have imposed furloughs to implement the federal sequester under the Budget Control Act of 2011. Lucky for the Justice Department, Attorney General Eric Holder announced in April that the DOJ would have no furloughs this year, even though he had previously said that 14 days of unpaid leave per employee was likely. For the 93 U.S. attorneys and the hundreds of assistant U.S. attorneys and support staff who filed 63,188 criminal cases against 85,621 defendants last year, it is business as usual.
For federal public defenders, things are not so good. On April 18, the Executive Committee of the Judicial Conference, which determines the spending policy of the federal judiciary, announced that it planned to impose furlough days, but not more than 15 per person. The District of Columbia office of the federal public defender was relieved because it had expected 27 furlough days. The federal public defenders should not have counted those chickens before they hatched, however, because less than a month later, on May 10, Fourth Circuit Chief Judge William Traxler Jr., chairman of the Executive Committee of the Judicial Conference, issued a memorandum reporting that the committee looked beyond the initial numbers, reconsidered its April decision, and decided to up the number of furlough days to 20. That is four full work weeks, a mandatory month off, if it were taken all at once.
Immediate action should be taken to level the field by restoring federal public defenders to their regular, full schedules. It is a grave injustice that the U.S. attorneys should have the wherewithal to continue prosecuting criminals full time while the public defenders are told to go home one day a week for as many as 20 weeks. The Federal Public Defender for the District of Columbia, A. J. Kramer, describes his situation: "Obviously it's bad for morale. People are trying to get the work done while being on furlough, while their pay has been lowered. It's very difficult to take care of matters that deal with clients when you're not in the office."
The federal public defenders are dedicated public servants. They are struggling to represent their clients without the pay they bargained for, but more importantly, without their office resources and support staff, and with reduced access to their clients and their files. Sequestration may ultimately leave public defenders without the funds to hire experts and to contract for other services necessary for the defense of their clients. Already, some public defender offices have reduced training, cut back on library support, eliminated office space, and offered buyouts to employees.
We expect prosecutors and defenders to be zealous in their representation. It is unfair, and an affront to the rule of law, that the uneven implementation of sequestration should diminish the capacity of the public defenders by a full 20 percent, the loss of a day a week, for what may be as long as all of the rest of this fiscal year.
True, there has been a whole lot of handwringing and whining on many fronts over sequestration which has been implemented with varying degrees of caprice across federal agencies. Some critically-important federal employees have been excluded from furloughs. Among them are food safety inspectors and service members in combat zones.
Other furloughed employees have been put back to work after broad-based public complaints. Air travelers, for example, slowed up by furloughs of air traffic controllers, complained so vociferously that Congress rushed in, faster than they exit the capital for their vacations, and restored the air controllers to their full schedules in a week's time. All that was at stake with the air controllers, though it was big politics, was delay for travelers. No one was going to be in any danger as a result of the sequestration and certainly no one was going to be executed or sent to prison because the air controllers were forced to take a few days off.
It is not that the Executive Committee of the Judicial Conference has not tried to make things better. It redistributed $6.4 million to give some relief to the public defender offices, but it simply was not enough money. An appeal has been made to Congress by federal court officials seeking $41 million for the public defenders. This gap in funding must be closed at once.•