More on Federal Public Defenders and the sequester

If you care about federal criminal law, please read “Sequestration’s Biggest Victim: The Public Defender System.”  It appeared in the Huffington Post yesterday.  While the Huff Post is not my favorite, the article is a very good one, and well worth reading.


Congress is herewith warned

I just received notice that the Federal Public Defender for the District of Nebraska furloughed his staff and closed his office on Friday, April 19, 2013 and he plans to furlough and close his office on 10 additional days.  Here is the missive received today from our Clerk’s office:



The Nebraska Judicial Council directs all courtroom deputies and judicial assistants to avoid scheduling any trial and hearings involving the Nebraska Federal Public Defender’s Office on the following dates1:
May 3 May 17 May 24 June 14 June 28 July 5 July 19 August 2 August 16 August 30
The Nebraska Federal Public Defender’s Office staff will be furloughed on these dates, and the Defender’s Omaha and Lincoln offices will be closed. In the event the U.S. Attorney’s Office is required to furlough its staff, the same date(s) will be used.

1.  The only exception to this directive is when the assigned judge specifically requires the hearing or trial to be held.

While I intend to honor this directive, I am also contemplating the dismissal of a certain percentage of criminal cases assigned to the FPD.   If I dismiss a bunch of immigration cases, where a short prison sentence would otherwise be imposed and the defendants will be deported anyway, perhaps I can assist the FPD in meeting his statutory and constitutional obligations.  I have not finally decided on this course of action, but I am seriously contemplating it.

Congress is therefore on notice that its failure to fund the judiciary, and most particularly the Federal Public Defenders and Criminal Justice Act counsel, may result in the guilty going unpunished.  If a banana republic is what members of Congress want, I may help them get it.


Statement on Impact of Sequestration on Judiciary, Defender Funding

In case anyone is not convinced of the devastating impact of sequestration on the judiciary and particularly to federal public defenders, please read the following statement that I just received via e-mail from the Administrative Office of the United States Courts:


Statement of Chief Judge William B. Traxler, Jr., Chairman of the Executive Committee of the Judicial Conference of the United States.

The Executive Committee of the Judicial Conference is responsible for developing a spending plan for the federal Judiciary’s annual Congressional appropriation. This process involves significant input from Conference committees, and under the best of circumstances, is a difficult and complex task.

The current fiscal year presents unparalleled challenges. Budget sequestration has reduced the Judiciary’s overall funding by nearly $350 million from the level provided in Fiscal Year 2012. The impact of sequestration on the Judiciary is particularly harsh because the courts have no control over their workload. They must respond to all cases that are filed, whether they are by individuals, businesses, or the government.

In February 2013, the Executive Committee implemented a series of emergency measures that were intended to mitigate the impact of sequestration to the best extent possible. Nevertheless, significant shortfalls remain.

Funds have been reduced for probation and pretrial staffing, which means less deterrence, detection, and supervision of released felons from prison. Related funding for drug testing, drug treatment and mental health treatment were cut by 20 percent. Money for security systems and equipment has been cut 25 percent and court security officer hours have been reduced. Cuts in court staffing and hours threaten to impact public access and slow case processing. National information technology upgrades to improve infrastructure and financial management have been delayed. Sequestration is impacting federal court operations and programs throughout the country, including a $51 million shortfall in the FY 2013 funds in the Defender Services account.

The Judiciary is committed to doing its part to reduce the fiscal deficit our country faces. However, a significant problem arises when budget cuts impact our responsibilities under the Constitution. This happens when we cannot afford to fulfill the Sixth Amendment right to representation for indigents charged with crimes. The predictable result is that criminal prosecutions will slow and our legal system will not operate as efficiently. This will cost us all in many different ways.

With regard to the Defender account shortfall, at its April 16, 2013, meeting the Executive Committee examined all aspects of this account, scrubbed expenses where possible, and approved a final spending plan. After lengthy discussion, the Committee determined to allocate the available funds in a manner that, without further impacting payments to private attorneys, will at least limit the number of days that any defender organization staff must be furloughed. The result is that some federal defender offices will still be forced to furlough their employees up to 15 days. The Committee also approved deferral of payments to private panel attorneys for the last 15 business days of the fiscal year.

The defender program has no flexibility to absorb cuts of this magnitude without impacting payments to private counsel appointed under the Criminal Justice Act and Federal Defender Organizations, which pay for government lawyers to provide counsel to eligible defendants. Federal defender offices already have fired and furloughed staff, as well as drastically cut essential services. Criminal prosecutions have been delayed because defender organizations do not have the staff necessary to continue their representation of the defendant or the funds to pay for experts or other cases costs.
The Executive Committee’s allocation of funds is not a solution to the $51 million shortfall. It represents a conscientious effort to mitigate the adverse impact on both personnel and services. It also means that millions of dollars in expenses in this account will be shifted to FY 2014, even though they were not part of the Judicial Branch budget submission to Congress. This level of funding is unsustainable without relief from Congress.

The Judiciary will soon ask the Office of Management and Budget to transmit an FY 2013 emergency supplemental funding request to Congress to help ameliorate the impact of the sequestration cuts to defender services, probation and pretrial services, court staffing, and court security.*

In his 2012 Year-End Report on the Federal Judiciary, the Chief Justice said:

“A significant and prolonged shortfall in judicial funding would inevitably result in the delay or denial of justice for the people the courts serve.”

I share this grave concern.


* Emphasis added by RGK

The Federal Judiciary, and Federal Public Defenders in particular, are facing devastation and the Constitution is in peril–this is not hyperbole

(Photo credit:  Alex E. Proimos' photostream pursuant to a creative commons license,

(Photo credit: Alex E. Proimos’ photostream pursuant to a creative commons license,

Years ago, I had the privilege of drafting the plan that created the Federal Public Defender for the District of Nebraska.  Thus, it was, with utter despair, that I learned yesterday that the FPD for Nebraska will let go his senior criminal investigator (who is located in Lincoln) because of the dire budget situation.

The investigator, with 18 years of service to the FPD and additional years of service before that as a lieutenant in a metropolitan police department, is among the best and brightest.  He is the epitome of integrity, professionalism and just plain common decency.  He is universally liked and respected by everyone including his former law enforcement colleagues.

Because federal defenders are part of the judiciary, they are directly impacted by the crushing reductions in funding that the judiciary faces as a result of the sequester.  Indeed, it appears that Congress has singled out the Defenders (and Criminal Justice Act panel attorneys) for special damage.

I have been with the federal courts now, in one capacity or another, for over 25 years.  I served as chief judge and at other times I chaired our budget committee.  In short, I have “been around the block” when it comes to budget crisis.  I don’t scare easily.

But this I know with absolute certainty: Never before have the federal courts faced anything like the impending disaster brought about by the failure of Congress to appropriate the necessary pittance (less than 1% of the national budget) that is required to run the courts including most especially the Federal Public Defenders.

Judge Julia Gibbons, speaking for the entire judiciary, recently told Congress that “the Judiciary cannot continue to operate at such drastically reduced funding levels without seriously compromising the Constitutional mission of the federal courts.” Funding Cuts Will Compromise Federal Courts, Judges Tell Congress, (March 20, 2013)* (emphasis added).   She was not crying wolf.

There is no other way to look at it.  Congress, with its psychotic fixation on ideology, has begun to intentionally trash the Constitution, the federal judiciary and most particularly the Federal Public Defenders.  Unless they prefer a banana republic, where the rule of law belongs only to the corpulent political elite, it is time for the citizens of this country to wake up.


*Statement of the Honorable Julie S. Gibbon, Chair Committee on the Budget of the Judicial Conference of the United States Before the Subcommittee on Financial Services and General Government of the Committee on Appropriations of the United States House of Representative (March 20, 2013).

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