Sequestration's Biggest Victim: The Public Defender System

How Sequestration Is Gutting The Public Defender System

It's roughly 164 miles from Lubbock, Texas, to Abilene; not the furthest drive you can do in the Lone Star State but still a bit of a haul. On a good day, you can make the trip in about three hours, which is what Helen Liggett discovered in April when she had to visit a client in the Taylor County Jail.

Liggett is an assistant federal public defender for the Northern District of Texas, based in Lubbock. Her client Leroy Gream had been caught on camera loading an ATM onto a cart and attempting to steal it from Hendrick Memorial Hospital in Abilene on Christmas Day of last year. Gream, 55, pleaded guilty to bank theft, a charge that carries a maximum penalty of 10 years in prison and a $250,000 fine. But like most people who try to steal an ATM, he didn't have the money to pay for his defense. Liggett was assigned to his case.

On April 8, she drove to Abilene to attend Gream's arraignment at the federal courthouse, which was scheduled for the next day. On May 8, she went back for his interview with the United States probation office in preparation for his pre-sentencing report.

In each instance, Liggett chose to pay for the trip -- $185 for gas and a hotel room -- out of her own pocket. It was either that or not visit her client at all. The budget cuts brought on by sequestration wiped out any travel budget her office had.

In an age of across-the-board budget reductions, Liggett forewent all travel reimbursements for March, April and May. She began buying her own pens and copy paper. She's also been furloughed one day a week and has occasionally taken on the furlough days of her lesser-paid secretary and paralegal. There used to be eight people in her office, but in late June, her boss said that they would have to make due with three. The office investigator subsequently announced he would retire.

"I still haven't figured out how a lawyer can represent a criminal defendant without investigating the case," Liggett said.

The public defender system hasn't just been stripped bare by sequestration, its bones have been chiseled away as well. There has been a 9 percent reduction in the roughly $1 billion budget for federal public defender's offices, while federal defenders in more than 20 states are planning to close offices. Careers have been ended and cases have been delayed. All of it has occurred in the name of deficit reduction -- and yet, for all the belt-tightening being demanded of the nation's public defenders, money is not actually being saved.

When federal public defenders aren’t able to take a case because of a conflict, or because their workload is too great, the job falls to private court-appointed attorneys known as Criminal Justice Act panel attorneys. Those lawyers are paid from the same pool of money as federal public defenders, but they cost much more and, according to some studies, are less effective.

To keep the budget from completely exploding, the Judicial Conference, a group of senior circuit judges that helps administer guidelines for the courts, could -- indeed, may have to -- reduce the rates paid to private attorneys, but that could mean fewer CJA lawyers would be willing to take up such cases. That, in turn, would result in the accused spending more time in prison waiting for trials -- only further driving up costs.

“It’s a situation where the federal government will wind up paying far more,” said A.J. Kramer, the top federal public defender in Washington, D.C.

It doesn't make any sense. But it wasn't supposed to. The $85 billion in sequestration cuts -- which included reductions to the federal public defender budget -- were designed to be so onerous that lawmakers would have no choice but to turn the whole thing off. Except they never did.

* * * * *

The common perception of public defenders is that they're lawyers of last resort. When the indigent need legal representation, they're the ones assigned to the case. They don't get paid as well as they would at a private firm and they tend to have finished law school somewhat recently.

But public defenders also protect the rights of the accused by taking on more than 10,000 criminal cases annually. Without them, the adversarial system of justice would lack basic integrity. So it's been alarming for the legal community at large -- and not just the public defender community specifically -- to watch sequestration drain public defender's offices of some of their more seasoned officials.

Richard Anderson, the former federal public defender for the Northern District of Texas and Liggett's former boss, is one of them. A few months back, Anderson told The Huffington Post that sequestration had impacted him emotionally, and that he had moved from “infinite rage to some sort of degree of quiet acceptance." On May 31, he retired in an effort to avoid causing his colleagues further pain. He had served in the role since 2006.

“He had planned on taking a later retirement, but he sped up his choice because it was going to save the office a significant amount of money,” said Jason Hawkins, the new nominee for Anderson’s position.

Other veteran federal public defenders have left the profession early in order to quarantine the pain. The most well-known case was in southern Ohio, where the director of the federal public defender's office announced he would fire himself shortly after sequestration took effect rather than force lesser-paid colleagues off the job. Three months later, Steve Nolder began life in private practice. He had served in his post for 18 years.

"I miss my colleagues," he said in an interview. "I'm still a lawyer and I will always consider myself a lawyer first. But when you go to work and go to war with people for 18 years, you get to like them, and I'm going to miss them."

Hundreds of miles away, in New Orleans, Virginia Schlueter, the federal public defender for the Eastern District of Louisiana, is set to end a 35-year career in that office this September. She was given the option of staying on board. But it would have meant forcing her employees to each take 50 days of leave without pay to cover the cost.

"I wish my retirement had been more on my own terms," she said, "but when the option is to pay your salary on the back of your employees with leave-without-pay days, it seemed the better administrative decision for the office was to tender my resignation."

Self-sacrifice hasn't solved every problem since sequestration went into effect this March. In the Washington, D.C., public defender's office, 10 positions are vacant. Nine employees have been laid off in Seattle. In the Middle District of Florida, the staff is down from 96 to 84, according to the federal public defender there. In Arizona, the public defender's office has let go of 25 workers. And even though she was leaving the job herself, Schlueter said that she still had to fire a "substantial number of our employees."

All told, observers expect that federal public defenders will end up having to lay off between one-third and one-half of their staffs. The AP estimated that 2,700 jobs will be lost over the next two years. Strictly in terms of the number of jobs lost, few if any professions have been hit harder by budget cuts.

Not everyone forced out by sequestration is leaving immediately, in part because they don't all have somewhere to go. One attorney laid off in March in the Middle District of Florida asked federal public defender Donna Lee Elm if he could just stay and keep working without pay, which he did until he found another job. Colleagues of another employee who was recently notified she was being fired are trying to see if they can job-share so she can stay.

“These people are wonderful,” Elm said. “The sequestration is having a really bad impact, but I’m determined to not let it hurt our clients. But there’ll be less and less clients I can take.”

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In interviews with roughly a dozen federal public defenders from around the country, none said that sequestration had impacted the quality of their work.

"We have a constitutional duty and ethical obligation to make sure we don't do a shitty job for our clients," said Michael Nachmanoff, the federal public defender in the Eastern District of Virginia.

But sequestration has forced them to do more with less. Offices have cut maintenance agreements, ended employee training, discontinued transit subsidies and stopped hiring interpreters. Nachmanoff had to re-negotiate an already discounted deal to pay for expert witnesses. Instead of $250 an hour, he now pays them $200. Jon Sands, the federal public defender in Phoenix, said that he has occasionally had to call just one expert witness in cases where, under normal circumstances, he would have used two or three. He's also relied on affidavits when he would have preferred to use live testimony and closed down branch offices to save on rent.

Sequestration has also forced public defenders to take on much lighter case loads, slowing down the judicial system even further in the process. Many courts are closing their doors on alternate Fridays to accommodate public defenders who have been furloughed.

In recent months, public defenders have asked for delays in the federal case against Osama bin Laden’s nephew, where sequestration has stretched the office “well beyond the breaking point.” The trial of alleged Boston Marathon bomber Dzhokhar Tsarnaev could be delayed because of federal public defender furloughs in Massachusetts. The sentencing of a Pennsylvania man who ran an online terrorist forum and bit an FBI agent was delayed because his federal public defender was furloughed.

In Washington, D.C., the sentencing of Floyd Lee Corkins, who shot an employee of the Family Research Council last year, was delayed because his federal public defender has been furloughed and the investigator working on his case left the agency and wasn't replaced. Corkins’ attorney, David Bos, asked for the sentencing hearing to happen before the end of September, just in case he or any of his colleagues gets laid off in the next fiscal year.

Trial delays aren't an issue across the board because a case can be -- and often is -- assigned to the CJA panel. But that raises a whole different set of concerns for public defenders, mainly that the quality of legal representation will suffer.

"It was without question the federal defenders who are the most competent. They appear in court day in and day out. They have more experience in the system, they have more contacts, they know the people and players and can get the judgement calls to go their way," said Nolder, the former federal public defender in Ohio. "I always looked at the federal defenders as the gold standard, and I truly believe that, even though I'm no longer there."

Of the private, more expensive lawyers defendants are getting, Nolder said: "The public is buying the $600 hammer."

* * * * *

What frightens federal public defenders most is not the damage wrought by sequestration so far, but rather the pain to come.

"This is a much more drip-drip-drip circumstance where the consequences aren’t immediate, but over time they’ll be felt," said Richard Coughlin, the top federal public defender in New Jersey.

The expectation heading into the next fiscal year had been that public defender's offices would have to swallow a 14 percent cut to their budgets, after weathering a 9 percent cut this year. But many top officials have been told to prepare for a more severe gutting.

"We’ve gotten a series of memos and emails that say a 23 percent cut is possible, we’ve gotten another series of emails that say a 14 to 18 percent cut is very likely and to plan for both, and I don’t know how you plan for both," said Christine Freeman, the executive director of Federal Defenders for the Middle District of Alabama. "I guess we have a plan A, B and C and none of those plans are real pleasant."

What do you do when nearly a fifth of your budget is wiped away? Nachmanoff, of the Eastern District of Virginia, is contemplating the dramatic. One proposal is to apply a staggering 97 furlough days to his staff across the board. That amounts to approximately four and a half months of work without pay.

"This is literally life or death for us," Nachmanoff said.

Other public defenders are contemplating similarly drastic measures. Next year, the Middle District of Florida will either lose 29 of its 84 remaining employees -- 16 have already been laid off -- or force everyone on staff to take 95 furlough days. They need to cut elsewhere, but they've already gone as far as they could.

“We have a district where things are so spread out, first of all, [that] I’m going to have trouble closing an office," said Elm, of the Middle District of Florida. "It would cost me more to send people there to handle cases than to keep an office open, so we really are kind of stuck."

"It’s heartbreaking," she said of having to reduce staff members or hours. "That’s a whole lot of people to sit down across the desk from and tell them you’re ruining their life."

Hawkins, who replaced Richard Anderson in the public defender's office in the Northern District of Texas, said that he was either going to require employees to take 65 furlough days or cut staff by 31 percent. “We’ll just be a hollowed-out shell,” he said. “It doesn’t make any sense.”

Tom Hillier, the chief federal public defender in Seattle, said he would resign at the end of February to help offset the cuts. But even then, the furloughs would likely keep coming. His budget once stood at $10.2 million, before sequestration brought it down to $9.3 million. By fiscal year 2014, it will have fallen below $8.3 million.

"I have people with special-needs children and kids who are going to college," he said. "A furlough day isn't a little thing."

At the federal public defender's office in Phoenix, some of the younger lawyers have begun looking for second jobs to supplement their current work. "They can't practice law," said Sands, "but staff members are trying to make ends meet."

In the midst of it all, federal public defenders are convinced the political world has moved on from focusing on their plight, more so than for other victims of sequestration. Their story doesn't carry the same emotional punch as do cuts in funding to Head Start programs or Meals on Wheels. Their situation isn't as obviously dire as that of cancer patients who have to pay more for their prescription drugs under Medicare. They don't have a high-profile figure to spotlight their furlough days like Pentagon employees have in Defense Secretary Chuck Hagel.

Some on the Hill are paying attention, though. The Senate Judiciary Committee, led in the effort by Sen. Chris Coons (D-Del.), has scheduled a hearing for this Tuesday to examine sequestration's impact on the court system. Nachmanoff, among others, will be testifying.

It's not an appropriations committee hearing -- which would have been ideal, since the issue is now about cash -- but it's a start. Yet many worry that it won't meet the urgency of the moment.

"One of the really pernicious things about sequestration is it is a slow stranglehold as opposed to an immediate stopping of essential government services. And so, people get used to it," Nachmanoff said. "But we are really on the brink of annihilation. So shouting from the rooftops is now very important."

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