A Defense of Public Defender Funding

As political leaders in Washington, D.C., face a looming deadline to avoid another self-inflicted government shutdown, they would be wise to look around the nation to get a sense of how failing to properly fund the work of federal public defenders would harm the constituents they serve. The harm is far-reaching—affecting the poorest people in Republican- and Democratic-led states and localities, in cities and in rural areas, from the Deep South to the cold North and beyond. Wherever there are people who can’t afford to defend themselves against the government of the United States, they, their families, and their communities face imminent disaster.

One example of a place that stands to lose without proper funding for federal public defense is Oklahoma, where a recent Supreme Court decision, McGirt v. Oklahoma, has flooded the local federal courts with unanticipated new criminal cases. That ruling barred the state of Oklahoma from prosecuting everything from murder to the mundane in historic tribal lands, and so the U.S. government has chosen to do it instead. Much has been made of how this new legal landscape has affected the workload and hiring of federal prosecutors. But failing to adequately fund federal public defenders means that the greatest effects will be felt by the most vulnerable, who will have no options, no forward movement, and no legal assistance when they most need it.

Or perhaps Congress may wish to look to the home state of Senator Jon Ossoff, who has championed the need to create a new public defender office in the Southern District of Georgia. As the New Yorker recently documented, southern Georgia may be the worst place in the country to be poor and charged with a federal crime. There is no federal defender office at all there, and instead attorneys with no experience in federal criminal law are appointed “willy nilly” to represent disadvantaged clients, many of them Black, on all kinds of federal charges. The solution to this problem is obvious—open a federal defender office—but it is hard to imagine doing that at a time when the federal defender budget risks being slashed.

And if lawmakers want an example that hits closer to home, they may look down the street to the federal courthouse in the District of Columbia. There, more than a thousand January 6 defendants, most of whom can’t afford an attorney, have been or will be assigned an assistant federal public defender. The numbers are so overwhelming that assistant defenders from around the country are taking these cases. The relatively lean District of Columbia federal defender office could not possibly handle this historic influx of cases on its own, while also continuing to defend the D.C. residents who are part of its everyday caseload. If the funding cuts go through, it and other offices will be left to make hard choices.

Despite these realities, the continuing resolution keeping the government open since early October has already cut the budget for federal public defenders. And the proposed permanent budget would likewise cut the federal public defense budget by over $120 million. As one of my colleagues wrote recently, unless Congress corrects course soon, the consequences for people, families, and communities would be nothing short of disastrous. Without a fully funded corps of federal defenders, federal prosecutions will continue unimpeded, while a robust, constitutionally required defense for those who need it most will be dealt a serious blow.

The federal criminal system and its prison population are only a small slice of our national crisis of mass incarceration. But the federal criminal system often serves as a bellwether for criminal systems at all levels. Indeed, from the explosion of mandatory minimum sentences, to the elimination of federal parole, to funding mechanisms that fueled prison growth in the states, the federal system has loomed large over state criminal systems in meaningful ways. Likewise, the misguided war on drugs, the ongoing war on guns, and the criminalization of people crossing the border, to name a few key aspects of today’s federal criminal system, invariably impact who gets prosecuted in federal court—and who must be appointed to defend them.

Add to all of this federal prosecutors’ predilection for sentencing enhancements, for routinely federalizing cases that otherwise belong to local state courts, and, in many places, for favoring pretrial detention wherever possible, and there’s little doubt that federal prosecution can cause real harm. And that the brunt of this harm is borne by Black and brown defendants. In a world where the U.S. government has near-limitless resources to prosecute and seek steep sentences, federal public defenders stand as the only institutional check against it.

Yet the expected cuts will only worsen this power imbalance. Already, just the threat of cuts has caused a hiring freeze in public defender ranks, leading to heavier caseloads and less time for each person represented.

What does that mean in practice? As one assistant defender recently explained to me, “I’ll always file a motion to suppress.” But without additional attorneys to carry the caseload or a mitigation specialist to help with clients, this defender added, “What I can’t do is spend a day finding a drug treatment program for a client.” And without a drug treatment program, that person is much less likely to be released on bond—and therefore more likely to be convicted or plead guilty, to serve a longer sentence, to be unemployed, to experience homelessness, and ultimately to commit another offense. Nearly everyone sentenced in the federal system ultimately returns to their communities; life sentences are rare. But as the assistant federal defender put it, his increased caseload ultimately contributes to destabilizing the very same communities the government claims it’s protecting with every new case it brings.

The issue is not abstract or hypothetical; we know how bad it will be because the federal government has done this before. In 2013 the federal government “sequestered” approximately 10 percent of the national budget for federal public defense, before ultimately restoring funds in 2014. During sequestration, defenders, paralegals, social workers, and the other staff who provide crucial support over the course of a criminal case were forced to take up to 20 days (a month) of furloughs, on top of cuts in expert, investigative, and travel moneys. Office after office had to lay off attorneys and staff, approximately 500 in total, with consequences felt most acutely by the poor and vulnerable people federal defender offices serve. This means across-the-board delays at all stages of the criminal process, acute delays in individual cases, and all the consequences that flow from defenders having less time for the nuts and bolts of defending a criminal case. This includes helping their clients understand their charges and options; putting together a release plan; researching motions; investigating a trial defense; exploring more favorable plea options; contacting witnesses; working with experts; preparing to examine witnesses; and on and on and on. Each delay in a person’s case—and each step of a case that gets less time than it deserves—only leads to more uncertainty and makes the process more punishing than it already is.

Restoring the sequestered funding in 2014 did not instantaneously fix the damage the cuts caused—a deep wound takes years to heal and too often leaves a scar. The Middle District of Georgia, for example, had to close a branch office during sequestration in order to save on utilities, rent, and the salaries of the staff who worked there. But closing the office was like “cutting off a leg to save the body,” in the words of Russell Gabriel, the acting executive director of the Federal Defenders of the Middle District of Georgia. Even today, it means that covering a simple initial appearance with thirty minutes of court time requires a four-hour round-trip drive. Professional standards outlining the baseline for effective representation set out the importance of investigating what Gabriel called the “fine-grained details of . . . clients’ lives, stories, and deeds.” But doing that requires in-person interviews, gathering affidavits, and going to the scene of alleged offenses—all of which now require that same four hours of driving. The long drive has even meant that the Georgia office has turned down cases in the geographic area previously covered by the closed branch office. The office’s attorneys, investigators, and assistants carry a heavy caseload, and there just isn’t always someone available to take on a new client when every step of the case requires spending four hours a day driving.

The Middle District of Georgia is hoping to reopen its branch office, but it will be just an empty office from which to work amidst a long day of driving. There’s no money to actually staff it. Likewise, when federal defender offices lost experienced attorneys and staff a decade ago, those people moved on by the time offices could rehire. It took years to recover, and defenders were sometimes “reluctant” to rehire out of a concern that future funding cuts might require a repeat of the sequestration’s layoffs and furloughs.

That concern has since been proven all too prescient. Already, federal and community defender offices are feeling the pinch from just the threat of budget cuts. The Eastern and Western Districts of Wisconsin, for example, have lost approximately a quarter of their attorneys through attrition, but can’t fill those empty positions. Meanwhile, the local U.S. Attorney’s Office is adding more attorneys than the federal defenders had even before the losses. Nationwide, the same thing is happening: Federal prosecutors’ offices across the country expanded by approximately 500 positions over the last year. By comparison, the budget cuts would result in the federal defender program losing at least 368 to 493 people—and that on top of a recent audit showing that the federal defender program was down 256 people, according to a well-accepted work measurement formula. Since then, of course, the federal defenders have lost even more people without being able to rehire.

Every federal defender with whom I have spoken was anxious to tell me how well their program works. Public defender offices use economies of scale to provide zealous, efficient representation—a single office can share legal assistants, mitigation specialists, investigators, meaningful supervision of more junior attorneys, and so on. As Gabriel put it, using full-time specialists means that federal defender offices build efficiencies into their representation. And they’re held accountable by outsiders who regularly subject them to close examination. Federal defenders have been forced to do more, better, and with less, and they’re proud of it.

Cutting the federal defenders’ budget sends a message that none of that matters. The federal government would rather pay more than allow federal public defenders to continue doing a good job representing clients. That’s because cutting funds to federal defender offices does not save money. It just means paying more to private attorneys to represent indigent clients. Public defense is very different from other government services. Cutting back library hours—or closing a library altogether—means that the library serves fewer people, for better or worse. But absent a government-provided lawyer, the Sixth Amendment prohibits prosecuting the approximately 90 percent of all people charged with federal crimes who cannot afford to pay to have a lawyer represent them.

Slashing the budget does not change that constitutional requirement; there is no cutting back on constitutionally effective representation. Its only effect is a change in personnel—relying on appointed private attorneys rather than full-time public defenders. But appointing private attorneys is more expensive per case than using public defenders to represent indigent clients. As part of the sequestration crisis discussed above, congressional testimony showed that representation by public defenders can cost approximately 71 percent as much as representation by private attorneys. By one assessment, appointing public defenders rather than private attorneys was saving six sample districts an average of $3.3 million per year as of 2014, presumably multiplied across each of the federal defender and community defender offices nationwide. These numbers are no dig at private attorneys, many of whom are equally skilled and are often former assistant federal defenders themselves. (I am among their number.) But appointed private attorneys are nonetheless often solo practitioners who lack the economies of scale I’ve described and who depend on judges to approve every aspect of a case.

Budgets are moral documents. They record what values we collectively support by showing who and what we financially support—and, by the same token, who and what we do not. Public defenders alone cannot fix the injustices of the criminal system. But a successful public defender program like the federal one nonetheless does tremendous good—from fighting for individual people to harm reduction to procedural justice to even transforming the criminal system, in some tellings. With its inaction, Congress is now contemplating radically undermining all this work. Yet no one has come forward with even a single argument as to why we should do that. Instead, according to reports, the proposed cuts arose from an accounting issue or a poor budgeting strategy whose results no one intended. The only value the cuts appear to serve is a naked dismissal of what public defenders have to offer—without regard for the people we represent, their communities, and how costly this indifference would be for us all. That’s indefensible.

Update: On November 16, President Joe Biden signed a stopgap spending bill to avert a government shutdown ahead of the Thanksgiving holiday. This temporary measure, which keeps the government open until early 2024, doesn’t resolve the budget shortfall federal public defenders face.

_{Image: Ian Hutchinson/Unsplash/Inquest}

Contributors

Judith Miller Judith Miller is a clinical professor of law in the Federal Criminal Justice Clinic at the University of Chicago.

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• Culture & Politics

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• congress
• gideon v. wainright
• public defenders