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March 11, 2013

"How the Sequester Threatens the U.S. Legal System"

The title of this post is the headline of this lengthy new piece authored by Andrew Cohen for The Atlantic.  Here is how it starts and ends:

When the chief justice of the United States and the chief judges of each of the federal circuits gavel down the semi-annual meeting of the Judicial Conference of the United States on Tuesday, they will have on their agenda an unusual item: the alarming impact of the funding "sequester" on the nation's federal court system.  The world won't end if students are denied the chance to tour the White House.  It will not end if our National Parks open days late this spring.  But citizens everywhere will see vital legal rights denied or delayed by the forced budget cuts.

All of the constituencies of the judiciary agree on this issue.  Federal trial judges are quietly seething at the inability of the legislative and executive branches to avoid sequester.  Federal public defenders, whose budgets have been cut twice in two months, are furloughing and laying off staff.  The attorney general of the United States has expressed grave concern on behalf of prosecutors and federal law enforcement officials. And court administrators are expressing alarm over the effect of the cuts upon federal judicial services.

At the core of the problem is the fact that the judicial branch is financially beholden to the other two branches of government.  This separation of powers was designed by our nation's founders to limit the judiciary's independence, and it has, and nowhere is this dynamic more visible than when a chief justice like John Roberts has to grovel for funding or otherwise justify the judiciary's minuscule portion of the budget.  If the sequester isn't unconstitutional per se, it is causing an unconstitutional effect upon the swift, fair and equal administration of justice....

Beyond a reasonable doubt, the sequester is having a profound and pernicious effect on the government's ability to observe its constitutional commands -- and to provide justice to its citizens.  That's why the members of the Judicial Conference have a difficult and delicate task this week.  The judges and administrators must adequately express the scope of their concern, and effectively explain the impact the sequester will have on the judiciary, without offending the very politicians who control the federal judiciary's budget. It's not right.  It's not fair.  It's a terrible testament to judicial independence.  But sadly it's the way the politics of law works in America today.

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March 11, 2013 at 09:52 PM | Permalink


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Yes, well there is Andrew Cohen, and then there are the facts.

According to statistics posted today by the Administrative Office of the U.S. Courts, the total number of federal appeals filed during the 12-month period ending Sept. 30, 2012, fell by 5.9% from four years earlier and the total number of federal appeals pending fell by 18.4% from four years earlier.

Posted by: Bill Otis | Mar 12, 2013 4:58:02 PM

That's why they need more funds. Their black pajamas are moth-eaten.

Posted by: albeed | Mar 12, 2013 5:42:07 PM

Bill, you are right--the caseloads are down significantly of late--in both trial and appellate courts (at least within the criminal sphere, which is my only area of recent experience). And it's clear that there are places for reductions to be made at EVERY level of the criminal justice system. Unfortunately, the structural factors that promote unwise spending of use-or-lose money and boom-time over-staffing are not going to change thanks to the sequester.

And people like me, one of the most productive (as measured by number of cases, severity of cases, quality of results, etc.) AFPDs in my district, are going to be forced either to work the same caseloads on putatively reduced hours (which really just means reduced pay) by virtue of furlough or lose our jobs entirely. Granted, those caseloads are smaller than they were a couple of years ago, but not by such a factor that receiving a 20% reduction in hours and pay is tenable for many of us.

Cohen's piece is heavy on dramatic intonations and light on analysis of how the judiciary (which controls the FPD budget, the USPO budget, and, in turn, payment for pretrial and post-conviction mental health and drug treatment) helped get itself into this mess. My own district is relatively fiscally conservative, but we are now paying for the fiscal excesses of larger, spendier districts.

Still, if the tune of my own personal violin does not sway you that the sequester and its effects are not benign, consider this: yesterday, within the space of two hours, USPO tried to wriggle out of paying for treatment for two of my indigent clients with documented mental health and drug dependency issues--for no reason given other than "sequester budget cuts." Surely, at a time when the country is focusing (overmuch, in my opinion, but that's another topic) on mental health as a factor in public violence, this is not the approach we want to be taking. But it is an approach that is almost guaranteed by the combination of structural deficiencies in handling the judicial budget and the fiscal bludgeon being used to try to force fiscal discipline on these ossified structures. Not good.

Posted by: AFPD | Mar 13, 2013 9:58:56 AM

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