The Third Cut Is Pretty Deep too (Update)

When federal defenders were “stripped bare by sequestration, its bones have been chiseled away as well,” few thought too hard about its long-term consequences. After all, there was no money to pay for the required defense of the indigent, the constitutional mandate of Gideon notwithstanding, and certainly nobody likes defendants anyway. So, basically, screw ‘em, because we need the money for Hamid Karzai things that are dearer to our hearts.

One of the points raised was that the defense function still had to be filled, and with the facile emasculation of federal defenders, the job would fall to private lawyers who took assignment under the Criminal Justice Act. Some good, some not so good, all more expensive than federal defenders. But hey, that’s the difference between things easily cut and costs to be paid later.

But as set forth in USA Today, it didn’t take long before the next layer of cuts took hold:

The federal judiciary for the first time is cutting the fees of court appointed defense lawyers, including those representing death penalty defendants, to deal with the “dire consequences” of required government budget reductions known as sequestration.

The cuts in attorneys’ fees will be implemented next month with payments dropping from $125 per hour to $110 in non-death penalty cases and from $179 per hour to $164 in cases where capital punishment is being sought.

This changes the landscape in federal court a bit. For you youngin’s, the battle to get the once-in-a-generation rate increase was hard fought, and eventually produced an increase to the numbers that lawyers could live with.  Then last week, SDNY Judge Loretta Preska, on behalf of the chief judges of the 87 districts, wrote to Congress to let it know that the judicial branch of government wasn’t doing too well with this whole sequester thing. Not that Congress cared, but who else would Judge Preska write to?

As for the rate paid for capital work, there is a fairly straightforward solution to the system’s fiscal woes. Just don’t do it. If the government elects to forego the death penalty in favor of some softie solution like ten thousand years in prison plus cancer, then problem solved.

As for the non-death-penalty rate, the answer isn’t so simple. No one expects the federal government to stop prosecuting. After all, it has those thousands of laws and regs that give rise to federal prosecution, and it would make the government look pretty darn foolish if it doesn’t use them. Plus, think of all the AUSA’s sitting around the office, tossing wadded up paper into garbage cans, suffering from low self-esteem. How will they ever get a Biglaw partnership when their commitment is done if they don’t convict people? The results could be disastrous.

On the other side, the numbers for less-than-death defense may strike outsiders as being, well, a bit better than the amount paid the typical shoe salesman, but that isn’t quite the way it works. At $125 an hour, lawyers are constrained to cover the cost of their office rent, telephone, iPad service, staff, malpractice insurance, copy paper, not to mention the other little frivolities that are expected of lawyers these days, and still bring enough home to feed the family after they’ve paid off their law school debt. See how that works?

Unlike federal defenders, the CJA panel lawyers have to pay their own way, and the time they spend defending the indigent is, with apologies to Abe Lincoln, their stock in trade. While it’s certainly not the most efficient use of federal funding, it’s the alternative to fully-funded federal defenders.

But, as legal philosopher Bill Otis notes in comments to Doug Berman’s post on this story, he will cry no tears for the poor lawyers.

I never met a lawyer, inside the government or outside, who couldn’t give you a half-hour lecture on why he should get more money.

Apparently, Otis is nothing if not self-loathing, but I won’t hold that against him as there are so many other things to hold against him. His snark aside, he’s right but ignores that the half-hour lecture is pretty darned accurate. Nobody gets rich doing CJA. Nobody gets rich as a federal defender.

Nobody gets rich as an AUSA either, but they do get rich when the leave the office and get a cool gig with a firm that wants to pretend the former AUSA is now a white collar defense lawyer. Clients absolutely adore it when lawyers are sold as a “former Assistant United States Attorney.”  Not so much when the bio says “on the CJA panel.” Go figure.

Yet, society needs these lawyers because without them, they can’t lock people away fast enough. Maybe this unilateral cut in pay by judicial fiat will cause a few of them to reconsider their willingness to take on cases that allow the government to keep the wheels of justice grinding.

Of course, if the good CJA lawyers decide they’re too busy to take on any new work, there will no doubt be others, who wouldn’t qualify for the panel based upon their twelve minutes of deep legal experience, who would be more than happy to take the work. At half the price. After all, their only expenses are Dropbox and the occasional vente mocha latte. And the courts are back in business.

Update: Via Jonathan Adler at VC, no odder couple than Nancy Gertner and Paul Cassell have penned an op-ed in the Wall Street Journal about the “decimation” of federal criminal defense. For these two to come out on the same side of anything, it has to be bad. Really, really bad.

5 comments on “The Third Cut Is Pretty Deep too (Update)

  1. BL1Y

    Should start referring to this as cuts in domestic defense spending. This is a 12% cut in pay for the people who defend our freedoms.

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