The Atlantic; March 11, 2013
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.
For Federal Court Administrators
In a letter forwarded last week to members of the House and Senate Appropriations and Judiciary committees, U.S District Judge Thomas F. Hogan, the Reagan appointee who now serves as director of the Administrative Office of the U.S. Courts, succinctly described the scope of the problem:
Public safety will be impacted because there will be fewer probation officers to supervise criminal offenders released in our communities. Funding for drug testing and mental health treatment will be cut 20 percent. Delays in the processing of civil and bankruptcy cases could threaten economic recovery. There will be a 30 percent cut in funding for court security systems and equipment and court security officers will be required to work reduced hours, thus creating security vulnerabilities throughout the federal court system. In our defender services program, federal defender attorney staffing levels will decline, which could compromise the integrity of the defender function...
Dennis Courtland Hayes, president of the American Judicature Society, the non-partisan national organization dedicated to the preservation and improvement of the American legal system, was even blunter in late February with the statistics he offered:
Nationally, up to 2,000 more court staff could be laid off or furloughed under sequestration. This would come on top of the more than 1,800 positions eliminated by the courts over the past 18 months, representing a potential 18% reduction in court staff since July 2011... Of particular concern to the American Judicature Society, which has worked for decades to improve access to the courts for self-represented litigants, those people seeking justice without a lawyer would have fewer services to help them navigate the judicial system.
"Sequestration's almost $350 million cut will not be fully felt in one day, one month or even one year," Judge Hogan wrote last week. "Reductions of this magnitude strike at the heart of our entire system of justice and spread throughout the country. The longer the sequestration stays in place, the more severe will be its impact on the courts and those who use them." The federal judiciary is being held hostage, in other words, because of the failure or the refusal of Congress and the White House to make a responsible budget deal.
For Federal Public Defenders
If federal court administrators offer the big picture impact of the sequestration, federal public defenders all over the country are sharing the details on an office-by-office basis. These stories are bad in two dimensions. First, there is the grim business of laying off desperately needed federal workers. Second, there is the impact those layoffs will have on ordinary people who for one reason or another are involved in the federal court system. It's really quite simple: The people being laid off try each day to help the rest of us secure our constitutional rights.
Let's start with Jon Sands, the longtime Federal Public Defender for the District of Arizona. Last month, Sands was forced to lay off 10 employees from the defenders' office. There were more cuts to federal public defenders' offices earlier this month (the Defender Program budget was slashed 5.17 percent in February and another 5.52 percent last week). "Even with the layoffs, I still must furlough," Sands told me this weekend via email. He wrote:
We have clients who need mental health experts to examine them, but whom must wait until the next budget allotment comes. We have investigators who can no longer go to the scenes of crimes, but call instead. We watch pennies so we can order transcripts. The impact of sequestration in criminal justice further makes the playing field uneven, with DOJ able to shift resources, while we can't. We are seeing offices shuttered, and staff sent home for 30, 40 even possibly 90 days.
In Utah, when news of furloughs hit the federal PDs office, Kathy Nester told me over the weekend that "several [Assistant Federal Public Defenders] stepped up to take extra days because we have staff that are single moms and this financial blow would be devastating to them and their kids." Another federal public defender, who asked to remain unidentified because of the nature of the situation, is facing a thirty-day furlough and had to lay off four employees. His story:
I laid off a young off a young [Assistant Federal Public Defender] Thursday, and he said he still wanted to work for us full-time while looking for other work. Makes me want to cry. Laid off a clerical type in another office. She is going for disability, but meanwhile, may come back 3 days a week with no pay, and staff there are covering her bus fare and coffee and lunch each day out of their own pockets. Definitely makes me want to cry.
Other federal public defenders have been more formal with their expressions of concern. In the Eastern District of Virginia, Michael Nachmanoff, the Federal Public Defender, informed the 4th U.S. Circuit Court of Appeals via letter last week that "at least seven public defender offices (and one community defender office)... will be required to turn down major case assignments -- such as death penalty cases, large white collar cases and representation of defendants facing civil commitment" -- as a result of the sequester.
Nachmanoff's counterpart in the Western District of New York, Marianne Mariano, offers more examples of the impact of the sequester upon federal judicial employees. In a letter last week to Dennis Jacobs, the Chief Judge of the 2nd U.S. Circuit Court of Appeals, Mariano wrote: "I anticipate all attorneys and staff will be furloughed 22 days. I have one employee who volunteered to take 28 days of leave without pay." In the Northern District of Texas, federal public defenders just warned judges that they "anticipate a likely need to withdraw from cases that require expert witnesses because our budget for expert witnesses has been decimated."
For the American People
One federal public defender, who also asked to remain anonymous because of the sensitivity of the current situation, offered this overview of what sequestration will mean to those who often need legal help and guidance the most. He wrote:
Sequestration has hit the truly indigent clients of the Federal Defender particularly hard. For example, Spanish-speaking families often write moving letters of support for relatives facing federal sentencing. Defenders have routinely paid to translate these letters translated into English, and these mitigation documents have played a central role in federal sentencing. With budget cuts, however, Defenders can no longer afford to pay outside interpreters the translation fees. As a result, Spanish-speaking families have effectively been silenced at sentencing, depriving indigent clients of critical evidence in mitigation.
The cuts have been particularly brutal for mentally-ill defendants. Many federal defendants suffer from a host of mental illnesses, and retained psychiatric evaluations are critical in determining competency, challenging allegations, and ensuring proper psychotropic medication is administered. Sequestration has devastated funds for these psychiatric experts. As a result, Defenders are forced to rely on their own lay knowledge, "talk" their client through appearances and pleas, and struggle with the risk of first submitting to an evaluation by government psychiatrists.
Even if you are not mentally ill, the sequester will impact you. If you are a creditor or a debtor and you want to resolve a bankruptcy in a timely fashion. If you are on federal probation and you can't get in to see your officer. If you are a state or local prosecutor and you no longer have federal funds to help you prosecute drug cases. If you are waiting for a federal drug test. If you are responsible for courthouse security or care about the safety of judges and court staff. If you want to go to trial in a civil case or are charged with a federal crime.
For Federal Law Enforcement
It's not easy on the other side of the fence, either. On the one hand, Congress and the Obama Administration want aggressive enforcement of criminal laws. On the other hand, they have been willing through the sequester to financially neuter the organizations directly responsible for such enforcement. National Public Radio's Carrie Johnson, in a smart report last week, revealed that Justice Department employees already are receiving their furlough notices. The FBI's abilities will be harmed, she reports. And then there is this:
At that meeting in Washington this week, state attorneys general worried about their share of the pie under a huge federal grant program. Janet Mills, the attorney general in Maine, was waving her hand with a question for Holder. "Could you please comment on the prospects for continued funding through the Byrne grants for drug enforcement and drug prosecutions and other criminal justice measures?" Mills asked. Holder said the states are right to worry about federal participation in drug task forces and other money the department sends to the states to help fight crime.
Crime -- and specifically border patrol work. Word in Arizona is that Operation Streamline, the longtime federal program of aggressive arrest and prosecution of unlawful immigrants, reportedly has been eased in the Ajo sector of the state as a result of the sequester -- evidently there isn't enough money to pay for the overtime for law enforcement officials. For his part, Attorney General Eric Holder told Senate Judiciary Committee members during his appearance last week:
As we speak, these cuts are already having a significant negative impact not just on Department employees, but on programs that could directly impact the safety of Americans across the country. Important law enforcement and litigation programs are being disrupted. Our capacity - to respond to crimes, investigate wrongdoing, and hold criminals accountable - has been reduced. And, despite our best efforts to limit the impact of sequestration, unless Congress quickly passes a balanced deficit reduction plan, the effects of these cuts - on our entire justice system, and on the American people - may be profound.
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.