Photo by krystian_o, via Flickr
The across the board cuts in federal discretionary spending, known to all as sequestration, has forced the judiciary to cut funding for a rarely considered but integral aspect of the criminal justice system: federal public defenders. These lawyers are employed by the US government to represent poor people accused of breaking federal law. The cuts, which began to take effect on April 1, are already having perverse consequences that are pissing everyone off. Sequestration is interfering with the trial of one of al-Qaeda’s most prominent spokesmen.
Public defenders represent the accused in some pretty high-profile cases, including the prosecution of terrorists. September 11th’s “19th hijacker,” Zacarias Moussaoui, had public defenders. So did Richard Reid, the “shoe bomber.” Dzhokhar Tsarnaev, the captured suspect in the Boston Marathon bombing, will likely have a federal public defender too when he faces terrorism charges. Osama bin Laden’s son-in-law, Sulaiman Abu Ghaith, is also being represented by public defenders. But Ghaith’s trial looks like it will be delayed because the New York’s public defender office is short on funds. The judge presiding over that case, the highly regarded Lewis Kaplan, called the possibility of a delay “stunning,” and “extremely troublesome.” A less polite person might call it “fucking ridiculous.”
It’s easy to view debacles like the Ghaith trial as just one more example of how our broken politics is having bang-your-head-against-a-wall consequences. But that would overlook an even bigger scandal. Terrorists and pirates make for sensational cases that attract national attention. But most defendants don’t have the luxury of intense media scrutiny of their prosecution. For poor defendants, that can mean an especially raw deal. And poor defendants already have it pretty bad.
This year marks the 50th anniversary of one of the most important Supreme Court cases of the 20th Century, Gideon v. Wainwright, which held that criminal defendants accused of a felony have a constitutional right to a lawyer. It’s thanks to Gideon that you often here the phrase “if you cannot afford an attorney one will be provided for you,” on legal dramas and Cops. Prior to 1963, many poor defendants in both state and federal courts had to fend for themselves. That led to pretty lopsided prosecutions. Criminal law, like all law, isn’t something you can pick up on the fly. Trying to defend yourself against a seasoned prosecutor without any knowledge of the law is a lot like trying to perform an appendectomy on yourself with some Excedrin and an Exact-O-Knife. But that was the situation many poor people found themselves in for much of American history. Gideon changed all that—or so it seemed at the time.
A half-century later, Gideon looks like a paper tiger. It turns out the right to a lawyer doesn’t mean the right to a great lawyer, or even an OK lawyer. It means you have a right to a lawyer who doesn’t screw up so colossally that your trial would have come out differently had your lawyer performed better. You have to prove that last part, by the way: you can’t just point out that your lawyer was a hot mess; you also have to demonstrate that had he not been such a hot mess, you wouldn’t be in the position you’re in. That’s the standard a very different Supreme Court set down in another important case, Strickland v. Washington, decided in 1984.
If this sounds like a high bar to you, you’re right. It’s nearly impossible to win under Strickland. In fact, there have been over a dozen cases where lawyers were caught sleeping or appeared dead drunk at trial but the defendant didn’t catch a break because he couldn’t prove that things would have gone any differently had his lawyer not laid into a bottle of Jim Beam or a double dose of Ambien on the way to the county courthouse. The most infamous of these cases involved a sleeping lawyer whose client was sentenced to death in Texas court. Strickland can seem an awful lot like a Catch-22: you have to show you had a decent shot of being exonerated in order to earn a reprieve because of your awful lawyer, but awful lawyers have a way of making things looking hopeless. If the dude is snoring in front of the judge and jury, he’s probably not pounding the pavement the rest of the day trying to dig up proof of your innocence.
This system has produced some predictably depressing results in some predictably depressing places. States aren’t required to spend a minimum amount of money on indigent defense, and in the decades following Gideon many spent as little as they could get away with. Ten years ago, the American Bar Association held hearings on indigent defense and came to “the disturbing conclusion that thousands of persons are processed through America’s courts every year either with no lawyer at all or with a lawyer who does not have the time, resources, or in some cases the inclination to provide effective representation.” Things are a little better today, but not by much. A lot of states, particularly those in the South, have set things up so that even a good, smart, hardworking lawyer is doomed to fail his clients. In Miami, for example, the average public defender handles over 500 cases each year. To put this into context, anything more than 150 cases per lawyer per year is excessive. Needless to say, prosecutors tend to have it better.
One bright spot in this otherwise dismal history has been federal public defenders. Federal defenders tend to be better funded and have less crushing caseloads than defenders in state court systems. They often graduated from elite law schools and passed up more lucrative and politically advantageous opportunities in the legal profession to serve indigents in trouble with the law. Elsewhere in the country, you may find talented people who care, but for systemic reasons they probably won’t be able to operate very effectively. Which is all to say it’s a damn shame that federal public defenders are about to get kneecapped by sequestration.
The sequester is an indifferent executioner. It lops off budget lines without much sensitivity to whether a particular program or agency could use some trimming. The Department of Defense gets hit particularly hard, but the Pentagon was rich to begin with, and even with the cuts America still has a massive military advantage over every other country on earth. Public defenders, by contrast, were always in a precarious position. Now Congress is about to kick them over a precipice.
The sequester takes $350 million out of the budget for federal courts (a five percent cut), which fund public defense. Here’s how those cuts will play out: Some public defenders will be laid off (one senior defender has already fired himself); others will be “furloughed,” that is forced to take a certain number of days off per month with a corresponding decrease in pay. There will be fewer federal public defenders to go around, and individual defenders will devote less time to each case they are assigned. A significant number of indigent defendants will spend longer in jail waiting for their case to go to trial. Those defendants will feel more pressure to cut a deal by pleading guilty—an option that may look increasingly tempting to their overworked lawyers.
In some cases, the cuts will mean that a poor defendant doesn’t get a public defender at all. That’s because Congress, for unclear reasons, created an exception to the sequester for panel attorneys. Panel attorneys are private lawyers appointed by courts. They serve in place of public defenders, and although there are some good ones out there, they are generally seen as less capable and committed than public defenders. When you hear horror stories about indigent defense in the state courts, they almost always involve appointed counsel. It’s not as bad in the federal system, but it isn’t great either. For one thing, panel attorneys aren’t always specialists in criminal defense, and often lack experience in federal law. But because of sequestration, panel attorneys are now more likely than not to be assigned high-cost, time-intensive cases. That’s insane, because panel attorneys are typically more expensive than public defenders. And complex cases are exactly the sort of scenarios where a good lawyer makes all the difference.
More on the budgetary bludgeon:
Reasons to Love the Sequestration