The $85 billion-plus across-the-board cut in the federal budget that took effect on March 1 is already being felt in New Jersey’s federal courts and, barring congressional action, will likely worsen when the new fiscal year begins.
Chief U.S. District Judge Jerome Simandle says the sequester is having "a huge impact behind the scenes and upon the public that is going to become more and more visible."
He says the most immediate effect on the public is that due to sequester-induced furloughs in the Federal Defender and U.S. Marshal offices, the federal courts in New Jersey will no longer hold criminal trials, hearings or sentencings on Fridays, beginning April 12.
Federal courts in Colorado, Delaware, Utah, the Eastern District of Missouri and the Western District of New York are taking similar measures for the same reasons.
The Federal Defender’s 47 New Jersey employees — including 27 lawyers — are being furloughed for 25 days between now and the end of September.As a result, each of the three vicinages will have only one defender present on Friday to handle initial appearances so that people who have just been arrested do not have to spend the weekend in jail.
Federal Defender Richard Coughlin, who heads the office, says the furloughs are the fruit of a 5 percent sequester cut that took effect March 1, which followed a separate 5 percent cut earlier this year.
Because the fiscal year is already half over, the effect of the combined 10 percent cut over the six months remaining is effectively doubled, to 20 percent.
The result is a budget of about $8.2 million, down from around $8.9 million last year, Coughlin says.
Decisions on how to implement the cuts are left to individual defenders offices around the country. Arizona fired 10 people and will furlough the rest for nine days.
Making things worse is that none of the defense cuts have thus far been absorbed by the Criminal Justice Act attorneys — the pool of private defense counsel appointed by the courts to represent some indigent defendants at the rate of $125 per hour. The rate is set by statute and thus cannot be easily cut. And because CJA attorneys typically bill once a case is over, the monies being expended now are for work they have already done, Coughlin points out.
Nor would the defender community want to see them paid less. Coughlin says it took a long time to get the rate up to $125 per hour and reducing it "would dissuade highly qualified lawyers from doing this work." The last increase, from $110 to $125 per hour for noncapital cases, took effect on Jan. 1, 2010. For capital cases, it rose from $175 to $178.
Nevertheless, CJA attorneys have cause for concern going forward. U.S. Administrative Office of the Courts spokesman Charles Hall says the program could run out of money during the last few weeks of the fiscal year, calling for "some very hard decisions about whether to try to defer payment or reduce services."
Funding for the CJA program, like that for the federal defenders and pretrial and probation services, comes through the courts, which have seen nearly $350 million slashed from last year’s $6.97 billion budget, Hall says.
As money runs out, jury trials may have to be suspended in September. This would largely affect civil cases, not criminal ones subject to the Sixth Amendment’s speedy trial mandate.
Other constitutional constraints on cost-cutting are the right to a defense attorney and the prohibition on pay cuts for Article III judges, which rules out furloughs for them.
Nationally, about 2,000 court employees likely will be laid off or will face significant furloughs, on top of 1,800 jobs cut in the last 18 months due to already pared funding, Hall says.
Decisions are being made on a local level, and Simandle says that no furloughs of New Jersey court personnel are expected for this fiscal year, despite a $700,000 decrease in the district’s approximately $14 million allocation.
"If everything goes according to our optimistic projections, we won’t have furloughs before Oct 1," although unexpected emergencies could alter the situation, he says. "I’m keeping my fingers crossed."
Furloughs at first appeared necessary but they were avoided by savings in areas like equipment and rent, Simandle adds. The rent savings will be achieved by reducing space because the courts are not free to negotiate a reduced rate of rent from their landlord, the General Services Administration.
The district is giving up some storage, as well as office space, which will require moving two pro se law clerks from Newark to Trenton.
The purchase of hundreds of new computers, done every four years, will be postponed, as well as software upgrades and server maintenance.
Helping to keep expenses down is that current staffing is 75 percent to 78 percent of what it should be, as the result of not replacing people who have left or retired over the last few years, even as civil filing rose by approximately 20 percent.
Cuts to probation and pretrial services will affect funding for monitoring and drug-and-alcohol treatment as alternatives to incarceration, which is ultimately more expensive, Simandle points out.
Coughlin says his office, too, is below its peak staffing of 50, with two investigators who accepted a buyout package retiring May 1. There is less money to retain experts and there is no money at all to pay for continuing legal education, which will now come out of the defenders’ own pockets. Still, he says, "we’re going to do everything we have to do to provide good, effective representation and if that means working more hours for less pay that’s what we’ll do."
The Department of Justice lost more than $1.6 billion to the sequester, which is expected to lop about $100 million from the current budget for the entire U.S. attorney community. The department anticipates it will handle 1,600 fewer civil cases and 1,000 fewer criminal cases as a result.
In February, assistant U.S. attorneys were notified of proposed furloughs of as many as 14 days between April 21 and Sept. 30 and were told they would have to stay away from the workplace on furlough days and could not work as unpaid volunteers.
On March 28, Attorney General Eric Holder Jr. announced he would postpone until mid-April any decision on whether to furlough department employees.
The office of U.S. Attorney Paul Fishman in New Jersey did not return calls.