Sequestration threatens to eviscerate federal public defenders

This afternoon, I will testify before members of the Senate about the threat that sequestration poses to the survival of the Federal Defender system.  It is a bitter irony that, exactly fifty years after Gideon, budget cuts threaten to destroy a program regarded as the flagship of indigent defense in this country. It is equally ironic that these cuts will end up costing the taxpayer more money than they save.

The legacy of the Federal Defenders is a rich one. For over forty years, some of the nation’s most talented and passionate lawyers have worked as federal public defenders providing counsel to the indigent.  In a few short months, all of that could change as budget austerity transforms the program into something unrecognizable.

This year, the Federal Public Defenders absorbed a $52 million shortfall caused by sequestration. This reduction is a miniscule fraction of the entire federal budget, but amounted to nearly 10 percent of our budget, devastating the Federal Defenders.

While these cuts have strained the system, the anticipated cuts for next year will be much worse. Because nearly 90 percent of a Federal Defender office’s budget is dedicated to pay salaries and rent, no amount of cost shifting can avoid the layoffs required in the face of the impending shortfall. As a result, federal defenders will be forced to continue laying off between 30 percent and 50 percent of their staff and closing branch offices as early as next month.

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If the agony lies in what these cuts will do—indeed, already have done—the irony lies in what they will not do: save money.

Nine out of ten defendants in federal court qualify for court-appointed counsel. Federal Defenders represent a majority of those people, and we do so for less than it costs the government to pay private lawyers who bill by the hour. In response to forced cuts, Federal Defender offices have had to reduce their share of the caseload—either because they lack the lawyers to handle cases, or because they cannot afford the associated costs, or both.

But those cases do not simply disappear. If federal public defenders are not available, courts must pay private lawyers who cost more to do the job.

Federal Defenders in more than 20 districts are already making plans to close branch offices. Such offices are typically in smaller locations where there are fewer lawyers qualified to handle criminal cases in federal court. In those cases, the cost of appointed counsel will increase. In other words, the anticipated budget cuts will dismantle the current system in favor of a less efficient and more costly alternative.

Over forty years ago, Congress created the Federal Defender program to improve the quality of indigent representation in federal court. Federal Defenders around the country represent people better, and more cost effectively, than any other alternative. Today, ill-advised cost-cutting measures threaten to destroy the nation’s model for indigent defense while at the same time costing taxpayers more. That makes no sense.

Nachmanoff is the federal public defender for the Eastern District of Virginia.