The Bomber, the Boston Federal Public Defender and the Anti-Deficiency Act

Zoe Tillman, writing for the National Law Journal, noted today that “[a]s the federal public defender office in Boston prepares to defend Dzhokhar Tsarnaev, the 19-year-old charged in the Boston Marathon bombings, the lawyers involved face an added challenge: managing the case in the midst of furloughs.” Public Defenders for Boston Suspect Facing Furloughs (free registration required).

To make matters even more complicated, there may be a serious question whether those defenders would violate federal law if they appeared in court during a furlough day.  According to the GAO,

The Antideficiency Act prohibits federal employees from

*making or authorizing an expenditure from, or creating or authorizing an obligation under, any appropriation or fund in excess of the amount available in the appropriation or fund unless authorized by law. 31 U.S.C. § 1341(a)(1)(A).

*involving the government in any obligation to pay money before funds have been appropriated for that purpose, unless otherwise allowed by law. 31 U.S.C. § 1341(a)(1)(B).

*accepting voluntary services for the United States, or employing personal services not authorized by law, except in cases of emergency involving the safety of human life or the protection of property. 31 U.S.C. § 1342.

*making obligations or expenditures in excess of an apportionment or reapportionment, or in excess of the amount permitted by agency regulations. 31 U.S.C. § 1517(a).

Federal employees who violate the Antideficiency Act are subject to two types of sanctions: administrative and penal. Employees may be subject to appropriate administrative discipline including, when circumstances warrant, suspension from duty without pay or removal from office. In addition, employees may also be subject to fines, imprisonment, or both.

U.S. Government Accountability Office, Antideficiency Act Background

Imagine this:  “Sorry, judge, I can’t show up today to defend a guy charged with blowing up Boston because if I do I may violate the law.”  Nice.

Rather than trying to solve this puzzle, doesn’t it make far more sense for Congress to authorize an emergency appropriation for the judiciary and, most particularly, Federal Public Defenders and CJA counsel?


8 responses

  1. Consider the news today that DOJ will not be facing any furloughs of their staff and we have created an imbalance in the legal system.

  2. No problem. I don’t know why it logged me in with that other profile in the prior comment, but it’s the same person. Thanks for the response and the blog. I’m sure I’ll be linking to you soon.

  3. Gideon,

    I appreciate this additional information. One can only hope that thoughtful people in Congress (and there are many) will step in and do the right thing. That is, take the third branch of government, and particularly Federal Public Defenders, out of the political maelstrom.


  4. I understand that our problems with furloughs and budget issues, but I have a very real problem with adding Judy Clarke into the mix. How much money are “we the people” going to have to pay her (fee, expenses, etc). The tracing down of the two terrorists already cost us millions. We have so many people maimed for life, and this live terrorist gets extra special treatment that will cost us a small fortune. He should be treated just like anyone else. Let the Boston public defender’s office handle the case and let things fall where they may. It is a insult to Americans to be charged extra for this trial, and I hope there is a public uproar about the money spent and the special treatment given to the swine.

  5. The average citizen says: “From watching all the news accounts, he is guilty. Why do we need to spend all our hard earned money on these expensive trials? Let’s just crank up the Armored Personnel Carriers and make sweeps through the cities and get all these terrorist and throw them somewhere….”

    Here comes the police state.

  6. Judge,

    I certainly agree with you about the public’s reaction. But, I still hold out the hope that there are more rational people, than nut cases. Then, again, I am rested and relaxed after a nice weekend. Ask me again on Friday, and my views may have changed.

    All the best.


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