What If No One Answered The Phone?

The arraignment clerk called the federal defender’s office to let them know of the arraignment at 2:00 p.m. The phone rang. It rang five times, then went into voicemail, and she left a message at the tone. It occurred to her that this had never happened before. Before, someone always answered the phone. After all, this was the federal defender’s office, not somebody’s home where they might have gone out for a walk. Somebody was always home. Always, until now.

The New York Times ran a piece putting together some of the various factors that affect the working of federal indigent defense.

The cuts for the 2014 fiscal year will most likely result in staff reductions of 30 percent to 50 percent, they said. And some public defenders are even considering closing their offices because of a lack of money.

The result, said lawmakers, judges and public defenders, are court delays that might violate defendants’ rights to speedy trials and could lead to the dismissal of criminal cases.

But surely the effects of sequestration, that absence of funding, pervade the system so that everyone feels the same pain.

While federal defenders have had to cut back on the number of cases they handle, the Justice Department is increasing the number of cases it brings to court and also hiring staff.

That can’t be possible, since there must be relative parity between the defense and prosecution functions. After all, they are different sides of the same coin, both playing critical roles in the system to make it function.

[The Justice Department’s] annual budget is nearly $28 billion, compared with $1 billion for the federal public defenders program.

Twenty-eight to one? They must have confused the numbers with the crack disparity in sentencing. If the prosecution is given 28 times the funding that is provided the federal defenders, plus a couple of other benefits like charging decisions, laws that empower them to coerce even the most innocent defendant into a plea and unfettered access to an army of people with guns, shields, pen registers, drones, metadata and the love and appreciation of a mindless nation, the system is beginning to sound a bit lopsided.

But if they are pulling the very small rug out from under federal defenders, and have a legal duty to provide legal counsel for the poor, then certainly this is a boon for private lawyers whose services are offered by way of the Criminal Justice Act panel.

With the cuts to the public defenders program, courts have to rely more on private court-appointed lawyers to represent indigent clients. These lawyers are paid from the same budget as the public defenders.

But they cost more since they are paid by the hour, and they tend to be less experienced and less effective, according to studies. Federal defenders are salaried employees.

Well sure, but they are still there, no doubt doing a better than utterly minimal job and making a killing in the absence of federal defenders.

“The idea that you can mount a defense with no travel, no expert witnesses or research makes a mockery of the federal court systems,” [Delaware Senator Chris] Coons said in an interview.

The judicial conference announced on Aug. 16 that it would try to keep staffing of the public defenders program at current levels by delaying payments to court-appointed private lawyers and reducing by $15 an hour the rate at which they were paid.

Which of course has no problematic impact, provided CJA lawyers don’t have rent to pay or mouths to feed as well.

But now it’s connect the dots time. The emasculation of senior staff at federal defenders’ offices means that the strong cadre of lawyers will be gone, with only a barebones and less experienced (and less well-paid, and more capable and willing to work for a pittance of their pittance salary) staff remaining.  When and if things turn around, it will take years before staffing is back to adequate strength to handle its caseload, and even more years before that staff gains the experience to do its job as well as it had in the past.

The private bar has struggled for the past few years with most defendants incapable of paying legal fees necessary to sustain a private practice, and needing the income from CJA work to bolster their bottom line, if not survive hand to mouth. Since children need food and landlords are disinclined to carry lawyers who can’t pay rent while awaiting the CJA checks to arrive, they will be forced to seek out alternative revenue streams by leaving the practice of criminal defense. Some will go into other practice areas. Some will go wherever they have to.

There will be some who remain, taking on far too many cases for which the compensation is woefully inadequate, so that their trench menu reads like a horribly managed public defender without doing the work needed to give their clients even the tiniest chance of competent counsel. Or there will be the inexperienced, who will take any case where a defendant has a few bucks in his pocket but are incapable of meeting the insanely low standards required for competent representation.

Or maybe a law school will start a clinic to serve the poor and knock off two birds with one stone. Law students, over the course of a semester or two, are pretty much equipped to take on the Department of Justice because they’re “practice-ready”?

And all the while, the government is increasing its staff and bringing more prosecutions.  The judges are upset, because the proper implications are that they must dismiss cases for failure to provide timely trials and competent lawyers to indigent defendants.  But they won’t. They will write letters and beg Congress, but in the scheme of politics, principled pleas are collateral damage. The occasional stand-out Senator may take the podium on C-Span and decry the unfairness of it all, but the sequestration will continue as long as there is political risk in ending it.

As much as the public may not have a deep appreciation of the defense function in the working of the system, they will begin to feel differently when that function effectively disappears. Same for judges, who won’t dismiss cases because they can’t bring themselves to let constitutional principle force them to give meaning to the beloved platitudes that begin paragraphs in opinions that eventually end with the word “denied.”

The cost will ultimately be paid in the prison budget, and the price of future criminals from broken families, a terrible thing according to Attorney General Holder, whose Department would be the one bringing more cases at a time when there is no one to defend them.

Yet, no one along the chain of dots will give an inch, because each must do what is best for the people.

Mr. Coons said he remained concerned.

Concerned? That’s nice.

One comment on “What If No One Answered The Phone?

  1. John Barleycorn

    I see the electrons vs rhetoric did indeed hold on.

    Out fucking standing.

    Have some tunes and bravo.

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