WASHINGTON – Federal court officials have asked the White House for emergency funding, saying the judiciary does not have the budget flexibility to absorb the large mandatory budget cuts that have caused furloughs in the nation’s federal public defender and court offices.
In a letter sent May 13 to the White House Office of Management and Budget, the U.S. Judicial Conference said the courts need an emergency appropriation of $73 million—$41 million for federal public defenders and $32 million for court operations. The money would save 550 jobs in public defender and clerk offices, and prevent 24,000 furlough days for 5,000 employees, the letter states.
The judicial conference request also connected the emergency funding to the Boston Marathon bombing, saying $5 million was for projected representation costs "for high-threat trials, including high-threat cases in New York and Boston" that federal public defenders would have been able to absorb had the sequester not happened.
Three high-threat cases are pending in the Southern District of New York:
• Adel Abdel Bary and Khalid al-Fawwaz are before Judge Lewis Kaplan for their role in the al-Qaeda conspiracies including the 1998 bombings of U.S. embassies in Kenya and Tanzania that killed 224 people and wounded thousands.
• Sulaiman Abu Gaith, Osama bin Laden’s son-in-law who once served as a spokesman for al-Qaeda, is also before Kaplan on charges he conspired to kill Americans.
A public defender recently told Kaplan that furloughs in his office were making it impossible to prepare for trial quickly, prompting the judge to say he found it "extremely troublesome" and "stunning" that sequestration was interfering with the case.
• Al Hamza al-Masri, aka Mustafa Kamel Mustafa, is before Judge Katherine Forrest on charges of trying to open a terrorist training camp in the United States and aiding a kidnapping in Yemen that ended in the death of four hostages.
The courts want to replace part of the $350 million overall cut to the federal courts budget as part of sequestration earlier this year, according to the letter from U.S. Circuit Judge Julia Gibbons, the chair of the judicial conference, and U.S. Circuit Judge Thomas Hogan, director of the Administrative Office of the U.S. Courts.
"The judiciary is confronting an unprecedented financial crisis that could seriously compromise the Constitutional mission of the United States courts," the letter states. "We believe our supplemental request meets the threshold for receiving an emergency designation."
Lisa Peebles, the federal defender in the Northern District of New York, said there is little hope of obtaining additional funding.
"We were told there was a better chance of hitting the Powerball," she said.
Peebles said there was a ray of hope earlier this spring when it appeared a supplemental appropriation would limit furlough days in the defender offices to 15, but that was quickly raised to 20.
"I was just deflated," Peebles said. "It is not looking good for 2014 and there is a lot of buzz that our program will take an additional cut. The future is looking bleak. It is not good for morale. It is not good for anybody. At some point, something will break."
‘It is Just Overwhelming’
Peebles said the Northern District situation may be exacerbated in a case where the government is considering the death penalty.
"It is just overwhelming," she said. "It is just so short-sighted. This is not a luxury service. It is a constitutional entitlement. If our office doesn’t have the resources or ability to take these cases, they will have to appoint counsel and it will wind up costing more in the long run."
David Patton, executive director of the federal defenders agency in New York City, said the supplemental appropriation "would be tremendously helpful."
Patton said that if the money were approved and distributed as he expected, it could cut the 20 furlough days in half.
Southern District Executive Edward Friedland observed that the amount of money being sought is small and would be spread across courts throughout the country.
That said, however, any "restored funding would help us in the area of law enforcement because it would help probation and pretrial officers carry out their duties of monitoring people on pretrial and supervised release," Friedland said.
He added that increased funding for court operations would be helpful, "but the bigger part for us is certainly pretrial and supervised release."
So far, the Southern and Eastern District courts have narrowly avoided furloughs.
Eastern District Clerk of Court Douglas Palmer said the extra money "would have a limited effect locally," but it would still help.
Palmer has a contingency plan to have Eastern District workers take two furlough days before the end of September, so the extra funding "relieves some of the pressure."
Congress has so far restored funding cuts that affected air travel, and allowed the Justice Department to transfer funds to avoid furloughs for prison officials, Federal Bureau of Investigation agents, prosecutors and other officials. So far, the courts have gotten no such consideration.
"Unlike some executive branch entities, the judiciary has little flexibility to move funds between appropriation accounts to lessen the effect of sequestration," the letter states.
The judicial conference says $13 million of the funding would go directly to restoring public safety, because it will bring back half of the sequestration cuts for drug testing, substance abuse and mental health treatment of federal defendants and offenders. The request includes $28 million to avoid deferring for three weeks payments to private attorneys representing indigent defendants.
In an April 17 statement, Chief Judge William Traxler Jr. of the U.S. Court of Appeals for the Fourth Circuit, chairman of the judicial conference’s executive committee, said the judiciary is committed to doing its part to reduce the fiscal deficit but the budget cuts impact the court’s responsibilities under the Constitution, he said.
"This happens when we cannot afford to fulfill the Sixth Amendment right to representation for indigents charged with crimes," Traxler said. "The predictable result is that criminal prosecutions will slow and our legal system will not operate as efficiently. This will cost us all in many different ways."
Clerk Michael Roemer of the Western District of New York said the court got a bit of good news when it learned that the U.S. Attorney’s Office and the U.S. Marshal Service will not have to furlough workers.
Earlier this year, the court had designated what it called "civil case Fridays" in which only civil cases would be heard at the end of the week because of the anticipated unavailability of prosecutors, defenders and marshals. However, Roemer said the stop-gap measure has been modified since apparently only the federal defenders will be furloughed for some 20 days. Now, he said, the court will hear criminal matters on Fridays when the case does not involve the federal defender’s office.
Roemer said the "outlook for next year is not great" and he is anticipating a 5 percent to 7 percent cut from an already depleted budget.
"We are already having to reduce our services," Roemer said. "We no longer pay victim restitution as frequently as we did. We just don’t have the personnel. We used to pay it weekly, and now we are doing it quarterly and we may have to go to semi-annually or annually. Our [Criminal Justice Act] attorneys are having to wait longer for their checks. We used to have an internal goal of 30 days to get them paid, and had to extend it to 60 days. With the way the budget is looking for next year, it would not surprise me if we have to look at possibly reducing the hours we are open to the public."
@|Todd Ruger, a reporter for affiliate The National Law Journal, can be contacted at truger@alm. John Caher and Mark Hamblett contributed to this report.