Congress finally has approved a budget for the fiscal year that lasts until the end of September—leaving government employees who represent the indigent in federal court to confront what one called a "devastating" situation and another described as "really bad."
The budget Congress accepted late on March 22 headed off a threat of a government shutdown when existing budget authority expired on March 27. But the legislation restored only a small slice of the $350 million in automatic cuts that hit the nation’s courts earlier this month in the so-called "sequester."
While judges and courthouse managers in New York’s four federal districts have cut non-personnel spending sharply to avoid furloughs, the Federal Defenders of New York and the Office of the Federal Public Defender in the Northern and Western districts have had no choice but to order employees to take unpaid time off.
At the Federal Defenders of New York, Executive Director David Patton had to tell the 39 attorneys and 39 staff members who work in the Southern and Eastern districts they each will have to take 27 days of unpaid leave beginning March 25 and ending on Sept. 30.
"It’s been devastating—people are, in essence, taking a 20 percent pay cut," Patton said. "Our budget is being cut 10 percent, but since we’re half way through the fiscal year, it’s really 20 percent of our budget."
Patton said the furloughs are going to have a big impact on his agency’s work, as well as courthouse operations.
"It means it’s going to take longer to get our work done and that means that our clients sit in jail for longer periods pretrial—and these are people who haven’t been found guilty," he said. "There are all kinds of support in terms of mental health counseling and substance abuse treatment that we can’t follow up on, so it’s not just a matter of people’s constitutional rights being violated, but the public safety."
Northern District Public Defender Lisa Peebles in Syracuse said the situation in the northeastern quadrant of the state is "really bad" as her office is looking at 32 furlough days between now and Sept. 30.
Peebles said she feels her office is being punished for being fiscally conservative and responsible in the past.
"We had stripped our operational accounts to the bone just to keep the lights on and managed our funds to the point where we had such a lean budget and didn’t have anything to cut outside of personnel," Peebles said. "Sadly, our employees are suffering and it is not a good situation at all."
In the Western District, Federal Defender Marianne Mariano said 28 employees, including 17 attorneys, will have to take 22 furlough days by Sept. 30, starting the week of April 12.
"They will literally lose a month of pay," said Mariano, who is based in Buffalo. "More importantly, it is going to hurt our clients. It is going to hurt our core mission."
Nonetheless, Mariano said of her staff, "They are prepared to do what they need to get the job done, and they are being asked to sacrifice quite a bit—unreasonably and unnecessarily."
Peebles said two of her attorneys are about to start a trial slated to last two to four weeks but are scheduled to be furloughed three times in that period.
"I never dreamed it would get to this point," Peebles said. "It may get to the point where I have to go to the chief judge and say, ‘We have to close the office on Friday or Thursday or twice a week because we simply aren’t going to be able to get these furlough days in before the end of the fiscal year.’"
Court officials say the federal public defender services program nationwide was particularly hard hit in the latest round of budget cutting, receiving $43 million less in 2013, although there are few areas to cut other than personnel and overhead expenses.
Judge Thomas Hogan, director of the Administrative Office of the U.S. Courts, recently told Congress that the cuts "could compromise the integrity of the defender function."
The cuts also will affect the payment of vouchers to private attorneys appointed under the Criminal Justice Act. Officials say payment could be deferred for almost three weeks at the end of the fiscal year.
‘Civil Case Friday’
Western District Clerk Michael Roemer said the courthouse is working to accommodate other agencies by using a "civil case Friday plan so they could implement their furloughs."
"The plan is subject to change if in some way, shape or form the number of furlough days get reduced or eliminated. We want to help out our fellow stakeholders if we can," Roemer said.
In all four districts, furlough notices have been sent to the U.S. Marshal’s Service and U.S. attorneys’ offices, although officials in New York City declined to discuss their extent. Roemer said the U.S. Marshals in the Western District will lose 11 days and the prosecutor’s offices 14.
Patton said scheduling at the courthouses is going to be "necessarily more chaotic" and there will be fewer visits to clients, less investigation into cases and "less being done in terms of client backgrounds in terms of sentencing."
Longer delays in sentencing have already been seen in both the Southern and Eastern districts because of fewer probation officers available to prepare presentence reports for the consideration of the sentencing judge.
In the Eastern District, where probation and pretrial services are separate, and the Southern, where they are combined, staffing has already been substantially reduced over the last three years (NYLJ, March 19).
The result has been longer waits for presentence reports, fewer field visits where officers can uncover drugs, weapons or child pornography, and less frequent testing and evaluation for drugs and mental health.
Despite these problems and other stresses, for the time being, courthouse officials are relieved to have avoided furloughs.
Lawrence Baerman, clerk in the Northern District, said the Syracuse-based court will "fare OK" for this year, apparently without furloughs.
"I have at least one senior employee who will be retiring and we will be able to make ends meet this year," Baerman said. "We will be able to maintain our operations, although with reduced funding in operations. But we will keep open to the public and keep our service levels where they need to be this year."
In the Eastern District, Clerk of Court Douglas Palmer said his staff would have been looking at a minimum of eight furlough days if other areas of his budget hadn’t been cut.
"We’ve made up the difference between our requirements and the shortfall by cutting out all of our expenses for the rest of the year," Palmer said. "We are not spending any money on facilities, maintenance and materials."
District Executive Edward Friedland said furloughs have been avoided in the Southern District because "everything from IT money to maintenance to courtroom technology, every expenditure, is being scrutinized."
"This only pushes the problem down the road because next year, double the amount of computers will be broken," he said. "People are using two sides of paper, but eventually, we’ll be out of paper."
Battered but Dedicated
The federal defenders offices already are facing problems.
Peebles said morale is low and she and her administrative officer are struggling to accommodate furlough requests. She said it adds insult to injury when people not only lose pay but cannot choose the days they will be off.
"The attorneys are trying to do the best they can to figure out which days would be best for their caseload, but there are a lot of days and it is hard to implement all this through the payroll system and keep it straight," Peebles said. "It really is a nightmare."
Salaries of defenders track those of federal prosecutors. Peebles said that an average defender with more than 10 years experience can earn between $120,000 to $140,000 per year.
Mariano said he has "done my very best to budget as carefully as I can to ensure that we have the resources to provide the best representation" possible for clients.
"If a very big case, a death case, a mega case, I hope to take that representation," he said. "It is part of our core mission. But those are expensive cases. The question will be whether I need to furlough even more to afford it, or do I turn the case away."
Patton said his staff, despite feeling battered, remain dedicated.
"In general, our people are terrific—they do this because they thinks it’s important work, they don’t do it for the money," Patton said. "That said, they need to earn a living and they work here at the salaries they make to work for the public interest for far less than they would otherwise make in the private sector."
He added, "I think people have really pulled together and committed themselves to do whatever they can for their clients, but at the same time it’s hard not to be incredibly disappointed that people in Washington don’t appreciate the work, don’t understand the work and have no idea what they are doing to the justice system."