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Sequestration and Federal Public Defenders

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Todd Ruger has this article in the NLJ (registration required) on sequestration cuts to the judicial branch, including federal defenders.

Money for federal defender organizations would be reduced by $53 million, which "could compromise the integrity of the defender function," [AOUSC Director Thomas] Hogan wrote. Allocations for defender salaries would be reduced by 4 percent, non-salary funds by 25 percent and training funds by 50 percent. Payment of Criminal Justice Act panel attorney vouchers could be deferred for almost three weeks at the end of the fiscal year.
Well, the first thing to cut is representation not authorized by law at all.  The second thing to cut is representation authorized only by Joe Biden's drafting error.

In Cook v. FDA, presently pending in the D.C. Circuit, the Federal Public Defender for Arizona is representing murderers from several states in a suit against the Food and Drug Administration for allowing importation of thiopental.  The cases federal defenders are authorized to take on at public expense are listed in 18 U.S.C. §3006A(a)(1)&(2), and civil suits against the FDA do not come remotely within any of the categories.  It's hard to have much sympathy with an office complaining of budget cuts when that office has been making patently illegal expenditures from its existing budget.

Many years ago, then-Sen. Biden snuck a provision into a drug bill, 21 U.S.C. §848(q)(4), to provide representation in capital cases for both federal defendants and state prisoners on habeas corpus.  A provision for continued representation in such things as successive petitions and executive clemency, which only makes sense for federal defendants, was misdrafted so that it applies to state prisoners as well.  (As a matter of code maintenance, the language was later moved without substantial change to title 18, where it belongs, as 18 U.S.C. §3599.)  Now we have federal taxpayer dollars paying for representation in purely state proceedings that follow the appointment in federal habeas, including representation in state collateral reviews and clemency petitions.  Congress needs to fix this so that the continuing representation provision only applies to federal defendants.

5 Comments

Decency evolves: if only we could abolish federal habeas review of state proceedings altogether, or Criminal Justice Act funding in its entirety! Oh, that pesky 28 U.S.C Section 2254 and Gideon v. Wainwright! Curses!

I just want to make sure I understand your argument: because one FPD office in Arizona is pursuing one piece of legislation that isn't obviously authorized by the CJA, and because some other offices engage in state litigation very closely related to their federal representation in habeas, then it's really no big deal that attorneys, paralegals, investigators, and secretaries in Seattle and New Hampshire and Miami and San Antonio and everywhere else are seeing their salaries cut by 10, 15, or 20% for the remainder of the fiscal year?

I'm really flummoxed by this type of argument. If someone else found one or two questionable expenditures at DOJ, would that justify the same degree of nationwide draconian cuts? When you say "that office" are you talking about the FPD of Arizona? Or are you talking about all the independent FPD's and Community FD's across the country who happen to get our funding from the Office of Defender Services, just like Arizona does?

As stupid as that would be, it would at least be mildly more rational, because DOJ is a single executive agency. It is the same entity raiding medical marijuana dispensaries in California and challenging the constitutionality of Prop. 8 in the Supreme Court. Not so with the FPDs.

Admission of BIAS - I'm one of those FPD employees trying to figure out what my family will do if we have to take a >20% pay cut through September (or a layoff). I know lots of families, even lawyer families, make do with less. But I don't know any who are ready to take that kind of cut on one month's notice (or less - we don't get the 30 day WARN act protection).

And yes, it's more than 20% or more for most people. Because Defender Budgets were already cut by 5% across the nation last month, independent of sequestration. And that's 5% during the current fiscal year, which is effectively a 10% reduction for the remainder. Sequestration will add close to another 5%. So in the same way "it's hard" for you "to feel sympathy" for me because some of my counterparts in Arizona are doing some litigation you don't like, it's going to be hard for me to feel sympathy for taxpayers when the system has to appoint more private lawyers under the CJA, which costs more and is slower. Or when the most talented CJA lawyers leave the pool, because payment is delayed and capped. Or for the system as a whole when we have to shut down criminal cases for one or two days a week, thus delaying resolution of such critical public-safety cases as prosecuting a lady who failed to report that she was shacking up with someone else when she applied for death benefits under her late husband's employment record.

One more thing. . . we are prohibited by statute from engaging in the private practice of law. So, if we're going to take on extra work to cover the deficiency (you know . . . more revenue as a means of deficit reduction), then it can't be in our field.

No, clearly, you do not understand my argument. I did not say or even remotely imply that cuts in what federal public defenders are supposed to be doing are okay.

I find it deplorable that an office unable to perform its actual mission is doing other things it is not authorized to do. That is directed specifically at the Arizona Federal Public Defender.

And, BTW, the FDA suit is not one that "isn't obviously authorized"; it is one that obviously isn't authorized. Big difference.

The second part is directed at Congress. It screwed up the drafting of the statute in question, and it needs to get off its duff and fix it, as the OP clearly states.

My comment was a little sloppy and I apologize. To clarify, obv. Az. Is pursuing litigation, not legislation. And I didn't mean to suggest anything you said or thought was "stupid," I meant cutting all DOJ accounts because of one or two queztionable lawsuits would be stupid.

My office takes a very narrow view of "ancillary" proceedings. But if the Az. Office was appointed on a 2254 case which somehow challenged the drugs, maybe the administrative suit would be "ancillary."

As far as the statute, I think appointed counsel at first state court post-conviction writ makes sense if the fed. Ct is going to make an appointment at the federal stage. If the feds are going to pay someone to try to undo a state conviction or sentence, that money seems better spent addressing the issues when it most matters, rather than hours and hours fussing about this or that procedural bar.

But returning to the substance of your OP,I would like to know how much is spent on the matters that trouble you so. I've honestly never heard of anyone doing any work like that. But if we promised to withdraw from any ancillary APA suits, and to work clemency petitions only after we put in our 8 for the day... would you then feel any sympathy for all the people working nights and weekends for even less pay than they had last month?

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