The automatic federal budget cuts that went into effect in March 2013 have had a devastating impact on the federal public defender community, including capital defenders. The process known as sequestration, which mandated budget cuts totaling $1.1 trillion over eight years, was designed to force lawmakers to reach a compromise regarding deficit reduction. When no compromise was reached, sequestration stripped $85 billion from the federal budget, forcing many government agencies to slash budgets and furlough employees. Perhaps no group has been harder hit than federal defenders.
Federal defenders provide representation to indigent defendants in federal capital cases and state death row prisoners in federal habeas corpus appeals. Since sequestration began on March 1, 2013, federal defenders in more than 20 states have started closing down offices, forced by a ten percent reduction in their 2013 budget. Experienced federal defenders have had to choose between retiring early or forcing their colleagues to take significant pay cuts. Funding for training programs and travel expenses has been stripped from budgets, and many offices have been left without case investigators and support staff. Defenders with decades of experience have been among the first to lose their jobs. These actions have serious constitutional implications for the men and women who rely on federal defenders to represent them in criminal proceedings.
In a letter to Vice President Biden on August 13, 2013, chief judges of 87 federal district courts wrote to express their “grave concern,” noting that the “most significant impact. . . has been the reduction in funding for Defender Services.” In their letter, the judges noted that “[t]he caseload is driven entirely by the prosecutorial policies of the Department of Justice. . . . The Department of Justice is not furloughing staff.”
Prior to the government shutdown, federal defenders were told to expect an additional ten percent reduction in the 2014 fiscal year budget. Such a decrease in funding would require defenders to lay off between 30 and 50 percent of their staff. Estimates are that 900 of the federal defenders’ 2,700 employees would be released over the next two years. Judge Julia S. Gibbons, chair of the Judicial Conference Budget Committee, warned that “the Judiciary cannot continue to operate at such drastically reduced funding levels without seriously compromising the Constitutional mission of the federal courts.” Although some additional funding was authorized when the government reopened on October 17, 2013, initial indications suggest that it will be used primarily to pay the backlog of Criminal Justice Act panel attorney fees. It will not alleviate the systemic problems caused by the budget cuts.
Due to the labor-intensive nature of death penalty cases, federal defenders will be forced to continue declining new representation unless there is further congressional intervention. Many states have relied for years on private attorneys and pro bono assistance to fill the unmet need for counsel. With the sequester in place, and with even greater budget cuts ahead, pro bono counsel may be the last hope for death-sentenced individuals seeking access to justice.