Congress has modified the Miranda rights:
You have a right to an attorney. If you cannot afford one, an attorney will be appointed to represent you, that is, if he or she is not furloughed, laid off or too busy to pay any attention to you.
The initial reaction by some federal prosecutors and agents to the disproportionate and devastating sequestration cuts imposed on Federal Defenders Offices by Congress’s absurd sequester might have ranged from indifference to outright glee. But the reality is that the crisis for that program has harmful implications for the government’s side of the aisle in addition to undermining criminal defendants’ rights. The cuts result in hidden costs to the public and will damage both public safety and the rule of law.
In the 2013 fiscal year FDOs were forced to impose over 100.000 furlough hours on their staff, an average of about four weeks of unpaid leave per person. Many offices have permanently laid off attorneys and staff, including investigators. They have terminated future involvement in death penalty cases as well as curtailed representing complex fraud defendants and in other time consuming and expensive cases. Most have greatly curtailed or eliminated expenses for experts, investigations, and interpreters.
In contrast the Department of Justice has gotten off relatively lightly by being allowed to reallocate its budget in order to avoid most furloughs with some belt tightening. No such clemency for defense attorneys.
FDO caseloads have been creeping up for years because of Congress’s decisions not to allow defense budgets to keep up with DOJ’s. Decimating their budget further can only pile on more cases to this crushing load. A diehard FDO attorney told me recently that work he used to love had become so oppressive that he was casting about for any kind of employment to escape the impossible demands.
That’s the bad news for FDOs. The really bad news is that starting on October 1st in Fiscal Year 2014, the cuts will double. Many offices will be forced to lay off from one-third to one-half of their offices. They may be the lucky ones because those left will inherit a crippled system incapable of functioning effectively even with reduced caseloads. The Attorney General has stated that the cuts threaten the integrity of the criminal justice system to ensure due process.
For fifty years since Gideon v. Wainright the 6th Amendment has been held to require the effective representation of counsel in serious cases. Since this right is a mandate, the reduction and elimination of FDOs will mean that private attorneys must be appointed to represent indigent defendants, who now make up 90% of those charged with crimes.
Although there are many fine and qualified panel attorneys, my own experience is that, as a whole, they are less experienced and less skilled in criminal defense than FDO attorneys, especially in the federal system. Simply put, FDOs in most districts like Detroit are the best criminal law firms available. So why should the elimination of such opponents matter to the guys who wear the white hats?
First off, the cuts will cost more. Gutting FDOs will cost taxpayers more than any “savings” from the budget cuts. Panel attorneys cost, on average, about 30% more per case than FDO attorneys. Shifting representation will result in other less obvious costs as well. Continuances are always more prevalent from private defense attorneys. Some are masters at delaying the inevitable for clients on bond.
The resulting transition as well as involvement of less experienced attorneys will also mean increased pre-trial detentions and inevitable delays which will slow down the system and increase judicial and prosecution expenses. Even the increased caseloads for the FDOs left standing will cost more in terms of scheduling as well as their making more mistakes which create appeal issues.
Second, although some of my former colleagues will be reluctant to agree, reducing the role of FDOs will negatively affect the outcome of cases. Every prosecutor can point to cases in which an effective defense attorney has revealed facts and circumstances which are unavailable to federal investigators. A more complete understanding of the case leads to a better assignment of culpability.
Good defense attorneys usually mean more defendant cooperation in continuing investigations. They have the confidence and experience to know when this is in their clients’ best interests. Cooperation leads to more cases, better results and more arrests of those up the ladder who would otherwise escape justice.
FDO attorneys are sometimes accused of encouraging plea bargaining. But the fact of the matter is that 95% of the federal defendants end up being convicted. Advice by experienced attorneys not only increases the system’s efficiency but almost always mitigates the eventual disposition for most defendants.
Finally, the DNA reversals have punctured the myth that the criminal justice system is perfect. Once in a great while factually innocent defendants get convicted although in the federal system the number is surely far less than the 1-2% estimates for the state system. I have a visceral belief that FDO attorneys nearly eliminate even this small number.
Third, crippling the FDO system will erode public confidence in the entire criminal justice system. The public perception will be that the “government” has placed its meaty finger on one side of the scales of justice. The intangible effects of such a perception will show up in juror bias, witness cooperation and judicial attitudes. Judges, even more than some do presently, will conclude that the adversarial system has broken down and that they must step in to assist the defense in key decisions in order to balance things out.
An eroded public confidence will also impact law enforcement officers in their already difficult jobs. It will discourage public assistance for investigators, make witnesses less willing to testify, and encourage bad guys to intimidate and influence witnesses.
Public cynicism is that justice is for sale. Rich defendants get off because of the legal representation they pay for. I happen to think this is not a fair perception of the federal system as a whole. But, valid or not, this rich-poor gap perception will certainly be enhanced by the results of the sequester cuts.
Finally, on a more speculative note, what effect will these draconian cuts mean to some simmering, long term public policy issues? Anyone who doubts the ability of financial considerations to influence substantive policy questions need only examine the effect of the economy downturn on the administration of the death penalty. See my earlier columns on this subject. The pressure to reduce spiraling corrections costs have certainly affected who we think should go to jail and for how long. And no one should be so naïve as to conclude that economic considerations played no part in the Attorney General’s recent announcements of changes in mandatory minimum and drug enforcement policies.
So what else is vulnerable to the kind of meat-ax approach wielded by our elected and unelected politicians? Legalization of drugs? Law enforcement cuts? If you think there are limits, buy a copy of This Town by Mark Leibovich and prepare for an at times hilarious and at other times depressing appraisal of Washington at “work.”
For all of these reasons and probably others that my prosecutorial bias has obscured, eviscerating the Federal Defender system will be bad for criminal defendants. But it will be even worse in the long run for the public, law enforcement and the rule of law