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ABA president rails against budget cuts to federal public defender program

ABA president rails against budget cuts to federal public defender program

By Daniel Buchanan

American Bar Association President James R. Silkenat vigorously advocated for Congress to adequately fund the federal justice system at an event marking the start of a yearlong commemoration of the 50th anniversary of the 1964 Criminal Justice Act.

“On most important public policy issues, there are two sides to the equation. Decent arguments to be made on both sides, pro and con. But not here,” Silkenat said. “There is no excuse, no excuse that is acceptable under our Constitution for the cuts being made to our judicial system and to our federal public defender program.”

The Criminal Justice Act was enacted to secure the Sixth Amendment right to counsel by establishing a comprehensive system for appointing and compensating lawyers to represent indigent defendants. Before the CJA, lawyers who represented these defendants did so on a volunteer basis without any compensation or reimbursement for litigation expenses.

“To the poor or even those of ordinary means, the right to counsel was often an empty promise” before the passage of the CJA, said U.S. District Judge Gustavo A. Gelpi Jr., president-elect of the Federal Bar Association.

Every speaker at the “Criminal Justice Act at 50” event, held Tuesday afternoon at the Library of Congress, railed against the across-the-board budget cuts, known as sequestration, and what Gelpi described as the “nefarious effects” on the federal public defender system.

Silkenat described the cuts as causing “madness” for the nation’s courts and “imperiling the delivery of effective legal representation for poor people accused of federal crimes.”

He questioned how some members of Congress could be “so blind to the damage they are causing our communities by their current failure to provide adequate funding to courts.”

“This is a deep embarrassment for a nation founded on the rule of law,” Silkenat added.

The $350 million budget cut for the federal judiciary in fiscal 2013 has forced federal defender offices around the country to layoff experienced lawyers who have devoted their careers to representing indigent defendants, Silkenat said. And the federal defender offices are preparing for another round of cuts of about 14 percent starting Oct. 1.

U.S. District Judge Catherine Blake, chairwoman of the Federal Judicial Conference Committee on Defender Services, said she feared that some of the best lawyers in these defender offices would resign in the frustration of not being given proper funding.

David Patton, executive director of the Federal Defenders of New York, said his office has 38 lawyers compared with the 300 federal prosecutors who cover the same jurisdiction.

“In our best day, in our best budget years, we are vastly outgunned,” Patton said. “We do not have parity in our system.”

“We have gone well past any cuts that are reasonable or manageable to our program,” he added.

Thomas Giovanni, counsel at the Brennan Center for Justice at the New York University School of Law, and Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers, lamented that the federal defense system is now in the same boat as the state systems, which have been suffering from underfunding for years.

“What has sustained those of us who do this work is the ability to cite the federal system as the model that we can point to,” Reimer said. “If the system is degraded, then there will be little hope that we can use this model system to spur reform throughout the states.”

Giovanni described the defender system is “out of control” and “horrid.”

“It was never what it should be,” he added. “We have never done right by poor people in this country.”

This year also marked the 50th anniversary of Gideon v Wainwright, the landmark Supreme Court decision requiring states to provide counsel to indigent defendants. But Reimer said organizations and leaders across the nation, including U.S. Attorney General Eric Holder, have not been celebrating as much as decrying the failure of this country to realize the promise of Gideon.

“We have had a solid year of lamentation because the indigent defense systems throughout the nation are a mess,” Reimer said. “They’re broken. In fact, it’s overly generous to call them systems. They aren’t.”

Cait Clarke, assistant director of the Office of Defender Services for the Administrative Office of the U.S. Courts, said the Sixth Amendment right to counsel appears to have lost its place as one of the United States’ most highly esteemed rights.

“Societies pass down their institutions through a kind of social chromosome,” she said. “The question before us is whether the judiciary — and the right to counsel, in particular — no longer occupies a prominent and secure gene in our national DNA.”

Clarke stressed that those dedicated to the Sixth Amendment must band together to reclaim this right by educating the public and rallying to restore funding for the justice system.

“There is a special obligation of every lawyer to stand up at a time when rights are under attack,” Reimer said.

Silkenat indicated he had asked all ABA members to help educate Congress on the effects of these budget cuts and to urge legislators to restore the funding to assure access to justice for all.

“This is a situation that demands that Congress act now,” Silkenat said. “No more roadblocks, no more stalemates. That is what our Constitution requires.”

The event was organized by the Federal Bar Association’s Criminal Law Section and the Law Library of Congress, with participating organizations including American Bar Association’s Criminal Justice Section, the National Association of Criminal Defense Lawyers, the National Legal Aid and Defender Association, the Brennan Center for Justice and the Constitution Project.

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