The sequester is often described as an “across the board” spending cut--a term that implies shared sacrifice. For the criminal justice system, however, the cuts are one-sided.
According to estimates from around the country, the sequester is hitting public defenders and courts far harder than prosecutors.
Whether by design or default, the sequester is systematically magnifying inequities in the courts--and potentially undermining constitutional rights.
The details vary by region, but in many federal districts, public defenders are facing cuts that are double to quadruple the size of their opponents across the court room. According to reports by defenders and government officials, that’s the case from Texas to Arizona and New Jersey to Massachusetts, where federal defenders are laboring under a $51 million shortfall.
One big reason for the inequity is arcane: prosecutors are funded through the Department of Justice, a $27 billion agency which has great leeway to absorb cuts. Defenders are funded through a slice of the federal courts' $7 billion budget. Since that fund is largely devoted to staff, the cuts have forced more furloughs and layoffs of attorneys--the last line of defense for most Americans accused of a crime. (At the state level, about eight out of ten defendants cannot afford to purchase legal services.)
With less time and fewer attorneys, defender offices are forced to choose between cutting essential services and rejecting those clients in need. The cost is especially acute for some of the most sensitive cases, such as capital crimes and trials requiring experts or translators. These cases are increasingly compromised or seriously delayed.
While postponing a trial may be welcome news for wealthy defendants who are usually free on bail, trial delays prolong the time that poor defendants spend imprisoned--and that's before they are ever convicted of a crime. (Under the sequester's peculiar math, that extra prison time creates additional costs but in a different part of the budget.)
The inequalities may be accidental, but they disproportionately hamper the poor and minorities. About 30% of defendants who cannot afford counsel are African-American.
If sequester is indeed “the new normal,” the imbalance may ultimately prove unconstitutional.
That's because public defenders are crucial to protecting a constitutional right: access to counsel for those who can’t afford it.
Defenders say the cuts are compromising their ability to provide the minimum defense required under law--a case they've begun making in sworn appeals and letters to judges.
An unusual uprising is brewing within the traditionally nonpartisan bar and apolitical bench. Aside from public defenders, who could be seen as advocating for their own clients or salaries, a wide range of officers of the court are protesting the sequester.
In late July, about 40 former prosecutors and judges wrote Congress to oppose the "devastating budget cuts facing the Federal Defender Services" and the "threat" those cuts "pose to the proper functioning" of the entire justice system.
Judges are stepping up. While they carefully avoid "political" disputes, several are speaking out against the sequester they see as a judicial crisis that transcends politics.
William Traxler, a former prosecutor and leading appellate judge, drew an unusually stark line in an April statement on behalf of the Judicial Conference, a nonpartisan group of senior judges that oversees court administration.
“A significant problem arises when budget cuts impact our responsibilities under the Constitution,” he said. “This happens when we cannot afford to fulfill the Sixth Amendment right to representation for indigents charged with crimes,” Traxler explained.
Other federal judges are weighing in as well--an unusual occurrence for a spending debate freighted with political ideology.
This week, Michael Davis, the chief federal judge in Minnesota, told The Pioneer Press that the cuts are hampering “the administration of justice.”
Even America's top judge was moved to confront sequester policy. While emphasizing that he was speaking on behalf of the courts, not the wisdom of a given policy, Chief Justice John Roberts recently protested that the sequester's "sustained cuts" have a "direct" and harmful impact on judicial services, leading to furloughs and layoffs.
“The idea that we have to be swept along because it is good public policy to cut everybody--I am not commenting on that policy at all--but the notion that we should just be swept along with [sequester cuts] I think is really unfounded,” Roberts said at a judicial conference in May.
“The cuts hit us particularly hard because we are made up of people. That is what the judicial branch is,” Roberts emphasized. The Chief Justice was essentially challenging the entire premise of the sequester--that government employees should face the same kind of uniform cuts as government spending on weapons or infrastructure.
“It is not like we are the Pentagon," Roberts said, "where you can slow up a particular procurement program.”
The numbers back up Roberts' contrast between essential staff and more fungible spending.
In fact, because the sequester is inherently arbitrary, it actually serves to penalize the very parts of the federal government that already have efficient budgets.
Most courts do not run large overheads for technology or outside purchases. Their budgets pay the people who provide fair trials, and rent for the buildings they occur in.
For example, about 90% of public defender budgets are devoted to staff and rent. As Michael Nachmanoff, a public defender in Virginia, explains, given that ratio, the sequester automatically compels many offices to fire “between 30% and 50% of their staff.”
As for flexibility, the courts are even more constricted than other departments because of a special protection written into the Constitution: salary reductions for judges are prohibited.
That longstanding policy protects judicial independence--Congress can’t dock pay as retaliation--but it's one more reason that the sequester's measurable toll on criminal justice is simply not doled out "across the board."
And then there’s the politics. There is far more political pressure to prosecute criminals than pressure to ensure the accused receive a constitutionally adequate defense.
"If there’s a general cut to criminal justice, there is a built-in incentive for prosecutors to keep the funds," says Melissa Harris-Perry, a Tulane political science professor and msnbc host.
"All of the biases that are already in the system just get amplified [by sequester cuts]," she says--reinforcing a preference that is already "clearly towards prosecution instead of defense."
In Washington, people often discuss the sequester as some kind of independent force--a series of uniform cuts that the nation is experiencing together.
That storyline may have appeal but it doesn’t quite comport with reality: a crackdown that afflicts the vulnerable more than the affluent. As bipartisan protests from judges, prosecutors and defenders grow, Congress may decide that some rights are more important than budget wars.