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Tuesday, July 23, 2013

Crisis in Federal Criminal Defense

Every indigent criminal defendant has a constitutional right to adequate legal representation.  Sequestration has put that right in genuine peril.  Federal defender offices are the most efficient, effective way to provide adequate counsel.  They are being gutted.

In congressional testimony today, one federal defender warns that if action is not taken the program will be “devastated,” “irreparably harmed,” and “eviscerated.” In short, he concludes, the program is “on the brink of destruction.”  Statement of Michael S. Nachmanoff Before the Judiciary Committee.

This is not just self-interested hyperbole.  A compelling story yesterday in the Huffington Post offered this grim assessment: “The public defender system hasn't just been stripped bare by sequestration, its bones have been chiseled away as well.”    A few days ago, a New York Times editorial concluded that sequestration is “imperiling the delivery of effective legal representation to poor people accused of federal crimes.”  .

Posted by Fredrick Vars on July 23, 2013 at 10:10 AM | Permalink


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I haven't seen anything close to a joint effort by the Justice Department, by leadership of the federal courts and/or by the private bar to protest these cuts. It's abhorrent that the budgets of US Atty Offices have not been cut at all. Don't all branches of government and the bar -- and not just federal defenders themselves -- have a duty to speak out here?

Posted by: formerFD | Jul 23, 2013 2:31:26 PM

Wouldn't it be more ethical to let defendants go unrepresented, and thus untriable, than to compromise the quality of representation in response to inadequate funding?

Why should defense attorneys request trial delays and relive the government of its speedy trial obligations, when it is the government that produced the conditions that necessitate delays?

Posted by: brad | Jul 23, 2013 2:51:58 PM

Brad -- the "let the system burn" approach might make long term sense, but it won't help defendants in the short term. If federal defenders stopped taking cases (even if that was possible), the cases would just be re-assigned to CJA lawyers who cost more and, in my humble opinion, overall are not as competent as federal defenders (yes, this is an over-generalization, I admit, but often true in my experience). The real and immediate need is to restore funding, which should be the highest priority of every participant in the administration of justice.

Posted by: formerFD | Jul 23, 2013 3:00:11 PM

That it costs more money is a good thing, voters should be made to suffer the consequences of their poor decisions. That the quality isn't as good is unfortunate though. Perhaps the federal defenders should quit en masse and sign up to be CJA attorneys. If it's good enough for members of the military who quit to become mercenaries it's good enough for those genuinely trying to do good.

Posted by: brad | Jul 23, 2013 3:24:33 PM

Here's a scandalous and probably uninformed thought, designed to provoke conversation rather than state a view I'm committed to. (More throat clearing--and without any intended denigration to the wonderful FPD's -- I'm nominally supposed to be a consulting expert to an fpd death penalty case in CA--, and without any basis for thinking that this decision will net/net be a good cost-saving measure for reasons adverted to here:

We have been seeing enormous drops in crime over the last forty years, and so, just as we expected a peace dividend in terms of DOD cuts post-Cold War, why can't we see some belt-tightening on the PD line?

Caveat 1: Federal crime is different than state crime and we'd want to know if there has been a corresponding drop of any magnitude in federal crimes committed/charged/convicted.

Caveat 2: Parity in cuts b/w the FPD and USAO is tempting (and certainly makes sense in terms of salary methinks,), but USAO does similar AND different tasks from FPD. If that's right, one can't just do a simple matching cut.

Posted by: Dan Markel | Jul 23, 2013 4:48:15 PM

Dan -- I don't think there has been a decrease in the federal criminal docket corresponding to the decrease in crime. For example, the number of cases resulting in a sentence (an imperfect, but decent proxy for number of cases charged) has more than doubled since 1996:


I don't have earlier numbers, but I suspect this trend has of growing criminal dockets has been going on for a long time.

I'd be curious as to whether state dockets have diminished with the decrease in crime, but I would not be surprised if they have not.

Posted by: Greg Gilchrist | Jul 23, 2013 5:35:21 PM

The number of criminal cases prosecuted in federal court has steadily increased for years. For a look at the *doubling* of the number of cases charged between 1995 and 2010, see here: http://www.bjs.gov/content/pub/pdf/fjs09.pdf.

Posted by: Anon | Jul 23, 2013 8:05:48 PM

Dan: Even if the premise of your thought experiment is true -- and as Anon and Greg have demonstrated, it's not -- indiscriminate across-the-board budget cuts are hardly the answer. The livelihood of real people is at stake, as the forced retirements described in the Huffington Post article demonstrate. The quickly approaching new reality for FPD's are much higher caseloads, fewer resources for investigations and experts, less administrative support, and the forced retirement of seasoned veterans with decades of invaluable experience -- the perfect recipe for destroying the long and well-deserved excellent reputation of FPDs.

I'd really like to see the prawfsblog community take some action here, rather than just talk -- how about we start a petition demanding that the cuts be restored?

Posted by: FDturnedProf | Jul 23, 2013 8:54:08 PM

Dan, the idea of a "peace dividend" is that we can spend less because the reason for spending -- in the military context, the need for a well-equipped and effective military -- has somewhat diminished. In the case of public defenders, though, the reason we spend is to ensure a fair trial when prosecutors bring cases. As others have pointed out, the number of federal prosecutions is up, not down, so I don't see how there is a "peace dividend" to enjoy.

Posted by: Orin Kerr | Jul 24, 2013 1:11:08 AM

Yes, that's why I issued Caveat 1. Of course, federal prosecutions are not necessarily related to the existence of federal crimes (in some "real-offense" way), and we might be seeing aggressive prosecution efforts or increases in the number of crimes or the number of people affected by new crimes or enforcement priorities, so it would also be interesting to see if declination rates over time have gone down with respect to particular areas.

Anyway, my simple point is that maybe we should consider base rates of crimes as a factor in which we decide what funding priorities we have. For reasons I adverted to, and those of others, the Fed Defenders may not be an apt place to cut, but it shouldn't be excluded in principle from examination. And the fact that people's "careers" are at stake, well, heck man, it's sad but that's life (said the cushy tenured professor at a state law school). Lots of people's careers are at stake whenever the gov't tries to cut spending. Why are talented lawyers spared that risk? If anything, they are more likely to find alternatives than folks at the bottom of the socio-economic ladder. Still, let me be clear: I don't want cuts to FPD (for reasons discussed above). I want higher taxes on billionaires :-)

Posted by: Dan Markel | Jul 24, 2013 8:47:44 AM

Dan, I think you are right that base rates of crime should be a factor in deciding our funding priorities. However, as you've noted public defenders have no control over their workloads; they handle what the prosecutors charge. Accordingly, the question ought to be whether the decrease in crime should have resulted in a reduction in funding for prosecutors' offices and investigative agencies. With the exception of homicides (and maybe a few other crimes), prosecution rates appear to have little relation to crime rates. I suspect that prosecution rates do correlate with funding for investigative agencies and prosecutors. Others have made this point better than I, but given the breadth of substantive criminal laws, prosecutors can always find more crimes to charge. The failure to contract law enforcement budgets in accord with decreases in real-offense rates will result in charges against people who previously would not have been subject to the criminal justice system. (Of course, if one believes in 100% enforcement of our criminal laws as written, this may be a good thing; I suspect that 100% enforcement of our criminal laws as written would be an unwelcome surprise to an awful lot of people).

Posted by: Greg Gilchrist | Jul 24, 2013 9:39:29 AM

Greg, thanks. Can we agree that if a drop in base rates is relevant then it has implications for funding both the USAO and the FD to the same tune, and holding constant that the USAO might have other tasks not strictly related to the bringing of cases that the FD would defend against? :-)
Thanks all.

Posted by: Dan Markel | Jul 24, 2013 9:42:40 AM

I appreciate the value of the base rate discussion -- it makes some degree of sense (as long as there is some sense of proportionality between funding for FDs and USAOs). But the sequester cuts have nothing to do with base rates and, as I think Dan and everyone else seems to agree, these across-the-board cuts are having devastating effects. On a slightly brighter note, Huffington Post reports Congressional testimony from former federal prosecutors and judges about the need to restore FD funding, see here: http://www.huffingtonpost.com/2013/07/23/federal-public-defender-sequestration-cuts_n_3640783.html

I hope that this is only the first wave of push back from leaders of the bar. As I mentioned in my first post, all participants in administering criminal justice -- especially prosecutors and judges -- need to speak out to ensure sufficient funding for quality defense.

Posted by: formerFD | Jul 24, 2013 10:05:53 AM

Thanks for sharing the story Frederik. For what it is worth (including self-promotion;)), I have a paper on what PDS and other legal services should do when such cuts come in terms of rationing legal services in the Journal of Legal Studies, available here http://ssrn.com/abstract=2180453.

Posted by: I. Glenn Cohen | Jul 24, 2013 10:14:21 AM

If they're in such a financial crisis perhaps the FPD could stop wasting federal resources ghost writing state habeas petitions for defendants convicted in state court, which is common practice for them in my state.

Posted by: Dan Roche | Jul 24, 2013 7:46:37 PM

It is not just the FPD offices that are being hurt; it is the whole federal judiciary system. Violent crime may have dropped, but the federal docket is driven by firearms, drug, and immigration offenses, with prosecutors frequently picking up state cases involving drugs or firearms for one reason or another (so people end up getting doubly prosecuted). Since almost every federal prosecution ends up as a federal conviction and sentence, the statistics compiled by the United States Sentencing Commission (ussc.gov) demonstrate the increases. In the District of New Mexico, one of the busiest federal districts in the US, 3022 defendants were sentenced in FY 2012. 2097 were sentenced for immigration offenses; 544 for drug trafficking; and 157 for firearms offenses. In 1996 (the first year for which the USSC has an annual report and sourcebook available and coincidentally the year I began with the FPD), 613 defendants were sentenced in the District of New Mexico. That included a mere 160 immigration crimes, 261 drug trafficking and 25 firearms defendants. Robbery convictions, on the other hand, have not increased as much, with 19 in FY 2012 and 16 in FY 1996. It seems that every "compromise" on issues such as immigration reform includes a renewed emphasis on law enforcement and additional pressure on the federal courts as a whole, but while resources are allocated for the enforcement functions, no additional resources are dedicated to the judicial functions. Sooner or later, the system will collapse if nothing is done.

Posted by: Shari Allison | Jul 25, 2013 4:06:39 PM

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