Public Defenders Hit Up To Six Times Harder Than Prosecutors By Sequester

Clarence Earl Gideon

Fifty years ago today, the Supreme Court decided Gideon v. Wainwright, which established the right of criminal defendants to be represented by an attorney in state or federal court. Yet, as Andrew Cohen explains in a must-read piece over at The Atlantic, Gideon‘s promise has become more and more illusory in the wake of budget cuts and conservative Supreme Court decisions making it easier for defendants to receive incompetent counsel.

Cohen also notes a particularly timely incursion on the right to be represented by an attorney if accused of a crime — the Sequester’s impact on federal public defenders:

Let’s start with Jon Sands, the longtime Federal Public Defender for the District of Arizona. Last month, Sands was forced to lay off 10 employees from the defenders’ office. There were more cuts to federal public defenders’ offices earlier this month (the Defender Program budget was slashed 5.17 percent in February and another 5.52 percent last week). “Even with the layoffs, I still must furlough,” Sands told me this weekend via email. He wrote:

We have clients who need mental health experts to examine them, but whom must wait until the next budget allotment comes. We have investigators who can no longer go to the scenes of crimes, but call instead. We watch pennies so we can order transcripts. The impact of sequestration in criminal justice further makes the playing field uneven, with DOJ able to shift resources, while we can’t. We are seeing offices shuttered, and staff sent home for 30, 40 even possibly 90 days.

The specific impact of these cuts will vary from district to district — some public defenders’ offices may lay off more employees, others may impose longer furloughs, and so forth. One thing that appears clear, however, is that public defenders will be hit much harder than federal prosecutors. While Sands warns of public defender staff facing furloughs as long as three months, the United States Attorney in New Jersey said earlier this month that employees in federal prosecutors’ offices only face furloughs “for up to 14 days between the middle of April and the end of September.” A source in the Eastern District of Pennsylvania, the federal court district that includes Philadelphia, tells ThinkProgress that prosecutors face 10 days of furlough — while federal defenders face up to 42 days without work.

There is a likely explanation for this disparity beyond the inference that America simply cares more about locking criminal defendants up than we do about making sure they actually committed a crime first. Federal prosecutors are employed by the Department of Justice, a nearly $27 billion agency under 2012 appropriations. Federal public defenders, by contrast, are employed by the United States Courts, which received only about $6.7 billion before the Sequester’s cuts took effect. As a result, the judiciary has far less flexibility in how it absorbs the effects of budget cuts. And this problem is exacerbated because the federal courts’ most highly compensated employees — federal judges — cannot constitutionally have their salaries reduced.

Whatever the reason for the reduced salaries for public defenders, however, the results will be the same. Heavier caseloads for already overworked attorneys who are potentially the only lifeline for innocent Americans accused of a crime they did not commit.