How the Sequester Threatens the U.S. Legal System

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Millions of Americans are defendants or plaintiffs. Millions more rely on the justice system to manage probation, fund public defenders, and keep their towns secure. Spending cuts will hurt them all.

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Jonathan Ernst/Reuters

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.

If you want to go to trial in a civil case, or are charged with a federal crime, the sequester will impact you.

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.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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