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August 20, 2013

Sequester now requiring still more foolish cuts to federal criminal justice services

As reported in this USA Today piece, headlined "Public defenders, probation services to have cutbacks," another fiscal shoe is dropping as a result of sequester in a manner that seems likely to harm both the federal justice process and crime control efforts. Here are the details:

The federal judiciary for the first time is cutting the fees of court appointed defense lawyers, including those representing death penalty defendants, to deal with the "dire consequences'' of required government budget reductions known as sequestration.

The reductions, outlined in a notice to U.S. District Judge Catherine Blake, chairwoman of the Federal Judicial Conference Committee on Defender Services, are part of an unprecedented criminal justice cost-cutting effort that also will scale back operations of federal probation services at a time when authorities are planning to rely more heavily on programs like probation to help reduce the rising federal prison population.

The cuts in attorneys' fees will be implemented next month with payments dropping from $125 per hour to $110 in non-death penalty cases and from $179 per hour to $164 in cases where capital punishment is being sought.

The reductions are aimed at saving $50 million during the next 13 months to avoid further cuts into the full-time staff of the federal defenders service. The defender program consists of both full-time public defenders, who have been targeted for furloughs and layoffs, and private court-appointed lawyers who assist in the representation of the indigent. In addition to the fee cuts, millions of dollars in fees to the outside court-appointed counsels, scheduled for payment in fiscal year 2014 (beginning in October), would be deferred into fiscal year 2015.

In the letter to Blake made public Monday, William Traxler Jr., chairman of the Judicial Conference's Executive Committee, warned that the fee cuts "may impact the delivery of justice, but are necessary to avoid permanent damage to the federal defender program."

"Measures of this kind, however, are not sustainable in the long term and certainly would not be required if the judiciary were receiving an appropriate level of funding in this account," Traxler said....

Notice of the fee reductions come less than a week after the chief judges of 87 federal districts warned congressional leaders and Vice President Biden that funding reductions to the judiciary have "put public safety at risk."

Although the number of convicted offenders supervised by probation officers is expected to increase from a record 187,311 in 2012 to 191,000 by 2014, the number of probation and pre-trial services officers employed by the judiciary to supervise those offenders has been reduced by 7% since 2011 to a staff of about 6,000....

"Cuts to officer staffing levels have forced cutbacks in these activities to crisis levels," the judges said in the letter last week. "Particularly troublesome is the 20% cut that had to be made to the … allotments that fund drug, mental health and sex offender treatment and testing services for offenders and electronic GPS monitoring."

U.S. District Judge Loretta Preska, chief judge of New York's Southern District and one of the two main authors of the judges' letter, said the appeal to Congress is the first she can remember in more than two decades on the bench. In her own district, forced budget reductions have hit the probation and treatment programs especially hard, Preska said in an interview, requiring a 43% cut in substance abuse treatment for offenders, a 7% drop in mental health treatment and a 24% cut in special location monitoring programs, including GPS monitoring of those on supervised release.

She said the reduction in attorneys' fees is "very dangerous" in regions of the country like New York, where legal fees are especially high. "Fees of $125 per hour is virtually charity work in New York," she said. "We want to make sure we can attract competent lawyers to join the panel" of court appointed attorneys. "We are very concerned," she said.

These cuts, though seemingly necessary because of the failure of Congress to act on funding issues, are hard to even consider "penny wise" and they are certainly "pound foolish."  Less funding for evidence-based treatment programs are very likely to lead to increased recidivism and its associated long-term costs.  And poor funding of defense services are very likely to lead to inadequate representation in some cases which likewise creates long-term costs due to future appeals and/or the imposition of excessive prison sentences.

I am pleased that the district judges are taking steps to alert Congress to the crisis that these budget issues are now producing, but I am disappointed that others in the federal judiciary are not also making a bigger deal about these issues.  In particular, I believe both the US Sentencing Commission and the Justices of the Supreme Court could and should be saying a lot about these issues given that they both have unique institutional insights and responsibilities concerning the functioning and fairness of the federal criminal justice system.

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August 20, 2013 at 10:30 AM | Permalink


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I suppose they could just choose not to seek the death penalty in any capital cases until the budget issues are resolved. Would reduce defense counsel rates and costs associated with sentencing issues. That way they could leave the other funding alone. Crazy talk!

Posted by: Ala JD | Aug 20, 2013 12:17:07 PM

Today's line: What's the matter with these people? We need to spend more money!

Yesterday's line: What's the matter with these people? We need to spend less money!

Posted by: Bill Otis | Aug 20, 2013 12:51:17 PM

Personally, I'd like to see the states control the purse strings for the costs of their correctional system. The carrot/stick approach with federal money actually makes it worse for both changes and implementation of policies that would help both criminal justice and community safety. "Sequestration" is the political buzzword of the day, in this case to allow the current administration, along with their sycophants in the mainstream media, to blame Congress in not acting, when in reality the money is never used as intended. Bill Otis can easily identify many different examples of such.

Posted by: Eric Knight | Aug 20, 2013 2:18:59 PM

LOL what a joke. so they will get ONLY 164$ an hr. while the average American is doing GREAT to get 16$

my heart bleeds for them!

Posted by: rodsmith | Aug 20, 2013 2:37:49 PM

Rod -

Your point is well taken, but bear in mind that $164/hr. isn't the private attorney's take-home pay. When the government sets the rate for private lawyers, it knows that those lawyers will have to spend most of what they get on overhead -- office rent, utilities, insurance, salary and benefits for administrative and paralegal staff, cleaning service, Lexis fees, etc. After paying for all of this the private lawyer probably takes home more than $16/hr., but it may not be a huge amount more.

Posted by: arfarf | Aug 20, 2013 3:26:59 PM

Although this is somewhat anecdotal, there are fewer arrests at rock concerts and other venues since overtime and hours for law enforcement have been cut. Obviously there are fewer individuals that need representation.

It may follow that low level sting operations will be cut back - leaving more time to investigate crime that has been reported not crime that has not yet taken place. There may even be fewer swat team entries by law enforcement and regulartory agencies. All these developments may result in less need for other court personnel.

Posted by: beth | Aug 20, 2013 3:33:36 PM

rodsmith --


I never met a lawyer, inside the government or outside, who couldn't give you a half-hour lecture on why he should get more money.

Posted by: Bill Otis | Aug 20, 2013 5:43:17 PM

Prof. Berman: What happened to the argument that crime rates are dropping for mysterious reasons when it comes to funding government make work lawyer jobs? If the rate of crime continues to drop despite the sequestration, then perhaps the additional funding is not needed. As to rates of exoneration, the defender is in reality a mere agent of the prosecution, carrying plea offers, selling, and pressuring the client to take them despite being innocent. Otherwise, the defender would have mount a case, and actually do some lawyer work for the money.

Posted by: Supremacy Claus | Aug 21, 2013 5:41:23 AM

lol arfarf I know that. I work in a business where a 3% profit margin is great news!

Posted by: rodsmith | Aug 21, 2013 9:30:37 PM

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