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August 21, 2013

New op-ed from former federal judges Paul Cassell and Nancy Gertner lament defender cuts

Another notable set of voices appears in this new Wall Street Journal commentary headlined "Public Defenders Fall to the Sequester: Steep budget cuts compromise the justice system and won't save money in the long run." The piece is co-authored by two of my favorite former federal district judges, Paul Cassell and Nancy Gertner, and here are excerpts:
[D]ue to the combination of general budget austerity and sequestration, the federal public defender system — a model of effective indigent defense for the past 40 years — is being decimated. As former federal judges from opposite ends of the ideological spectrum, we both understand that these shortsighted cuts threaten not only to cripple the federal defender system, but to disrupt the entire federal judiciary—without producing the promised cost savings.

A decrease of nearly 10% in the federal public defender budget for 2013 has already resulted in layoffs and up to 20 days of furloughs in many federal defender offices. In a number of states, federal courts have been forced to delay criminal cases because of public defender furloughs and layoffs....

These steep budget cuts will not save us money in the long term. Delays in trials require many defendants to spend more time in costly pretrial detention facilities. But the flow of criminal prosecutions has not abated, so the unavailability of public defenders will simply force courts to engage private attorneys more frequently. Most federal judicial districts have a public defender office and, in those districts, it is more cost effective to have the office handle a majority of cases.

Reducing funding for federal defender budgets means that the remaining federal defenders have less time and fewer resources with which to investigate cases, conduct legal research and hire expert witnesses. This loss severely compromises their ability to represent their client at trial, destroying the adversarial process at the heart of our system. Without balanced, vigorously litigated cases, wrongful convictions may become more common, imprisoning the innocent and allowing the guilty to walk free.

These mistakes — inevitable in an underfunded system — will create even more expenses down the line, through appeals, unlawful-detention proceedings and retrials. As Supreme Court Justice Stephen Breyer noted in March in congressional testimony about the effects in general of the sequester, it is "cheaper to have a decent lawyer in the first place."...

As Congress works to reach agreement on spending for next year, its members must know that proceeding with steep cuts to the federal defenders not only threatens to undermine justice, but is bad fiscal policy.

Only with full funding of federal defenders will we avoid the ripple effect that will clog judicial dockets, delay both criminal and civil proceedings in federal courts—and undermine the efficiency of a federal defender system that has effectively served justice for the past 40 years.

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August 21, 2013 at 04:50 PM | Permalink


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I have said for years that the PD's should make more. They are generally quite good, and are underpaid to start with.

Where are we going to get the money for increases for the PD's? How about going where Congress fears to tread, and where we all know the real money is anyway -- entitlements.

Time to stop ducking the real budget buster and man up. Congress should not take out on either imprisonment or on PD pay its own cowardice in facing the real problem.

We could also use some leadership from the President, while we're at it.

Posted by: Bill Otis | Aug 21, 2013 5:03:35 PM

Very different but two great former judges are exactly right on this. Congrats for coming together on this excellent piece. I am sure Otis is for paying FPD's more because their salaries are tied to his beloved AUSA's .

Posted by: Steve Prof | Aug 21, 2013 6:24:25 PM

I have no problem paying PD's more, but let's just keep in mind that a whole lot of JDs out there aren't making anything or making very little.

Posted by: Steve Erickson | Aug 21, 2013 6:53:47 PM

The "debt ceiling", the "fiscal cliff", the "sequestration", and the "budget deficit" are all phony. A government (such as the US) that issues its own currency that is not pegged to a commodity or other nation's currency and who pays its debts in its own currency can never go bankrupt.

Any regular person who tells you otherwise in either misinformed or a troll. Any Washington insider or MSM talking head who tells you otherwise is a lying sack of sh*t. The USG is not the functional equivalent of a husband and wife sitting at the kitchen table paying the family bills.

For this reason USG spending, unlike state and local government spending, is not onstrained by tax receipts. USG spending is only constrained by inflation. And as we have been in the Great Recession for the last five years, inflation is not an issue.

So for example, we can have a military that can simultaneously fight and defeat the Cylons, the Borg, and the Klingons. We can repeal Obamacare and have Medicare for All. We can pay CJA panel attorneys $500 an hour with no caps and pay AUSAs and AFDs $500.000 per year. Subject to the constraints of inflation, we can have anything we want.

We can do this because we have and have had the strongest and most productive economy in history for the past 75 years. Why some would want to spurn this and turn the US into a third world country is beyond me.

Posted by: Fred | Aug 21, 2013 10:36:57 PM

Judge Cassell and Judge Gertner have long served and served well as voices for justice in our federal courts. I am skeptical, however, that their commentary will have much effect. It appears to me that we have a schism in this country that is facilitated by gerry-mandering in the House and the anti-democratic (in the sense all states regardless of population are allotted 2 Senators) features of the Senate. Our country is big enough, rich enough and powerful enough to tolerate to a degree this schism and the apparent refusal to govern that goes along with it. This is one pocket of deep and troubling inequity that has resulted. We can do better than this.

Posted by: Robert L. Abell | Aug 26, 2013 11:02:58 AM

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