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
toldThe 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.”* * * * *
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."
