Sequestering the Constitution

Imagine the David-and-Goliath posture of the federal defenders office in Minnesota. Its eight attorneys take on 70-75 percent of all criminal defense in the federal district court. They are up against 46 attorneys prosecuting those cases for the criminal division of the U.S. Attorney’s office. But wait — it gets worse.

According to Minnesota’s Chief Public Federal Defender Katherian Roe, her office faces a cut of one-third to one-half of its already too-small staff because of federal budget sequestration.

Roe said that the U.S. Attorney’s office has recently increased the average amount of time spent per defendant to 300 hours. In the far smaller federal defenders office, “we average one-tenth of that.”

Why do cuts to the federal defender program pose a constitutional issue? The Honorable Michael Davis, Chief Judge of the U.S. District Court in Minnesota, explains:

“The judiciary is the third branch of government. It’s the 50th anniversary of Gideon vs. Wainwright, in which the U.S. Supreme Court said that, under the Constitution of the United States, indigent people are entitled to competent defense, paid for by the government. It is time for the government to continue to pay for indigent representation. This is a constitutional right. It is not alms to the poor.”

Nationwide, the federal defender program already has lost 200 employees, in addition to one-month furloughs and cuts in other areas. In Texas, travel expenditures were eliminated, reported Sam Stein in the Huffington Post, which meant federal public defender Elizabeth Liggett paid $185 out of her own pocket for gas and lodging for the trip from Lubbock, Texas to Abilene to represent her client. Twice.

So far, Stein reports:

“In an age of across-the-board budget reductions, Liggett forewent all travel reimbursements for March, April and May. She began buying her own pens and copy paper. She’s also been furloughed one day a week and has occasionally taken on the furlough days of her lesser-paid secretary and paralegal.”

In Minnesota, said Roe, her office represents all federal defendants unless there is a conflict of interest. (When a case has multiple defendants, for example, they usually need to be represented by separate lawyers.) When there’s a conflict of interest, the office represents one defendant and the others are referred to a panel of private attorneys, who are paid an hourly rate by the government.

A Minnesota study, said Roe, showed that it’s 30 percent less expensive for the federal defender to represent a defendant than for an attorney from the panel. (The numbers may be slightly different, but paying for private representation of indigent defendants costs the government more across the country.) With the cuts in staffing, the federal pubic defender will no longer be able to represent as many defendants, so the amount the government pays out for private defense attorneys will go up.

Chief Judge Michael Davis of the U.S. Federal District Court in Minnesota, said the sequester cuts will “have a drastic effect upon the representation of people who are indigent.” He confirms that loss of federal public defenders will cost more money:

“We will have to go to private attorneys through the criminal justice act panel that we have. Because their fees are higher, the cuts will go for naught because we will be paying more.”

That, of course, defeats the purpose of the cuts — but when did the automatic, across-the-board budget cuts imposed by the sequester ever make sense?

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