Sequestration threatens public defender program with 'complete destruction'

Monday - 7/15/2013, 6:22pm EDT

Michael Nachmanoff, federal public defender for the Eastern District of Virginia, on "The Federal Drive" with Tom Temin and Emily Kopp

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Federal public defender offices have been slammed by across-the-board budget cuts so far this year, leading to millions of dollars in budget shortfalls and what could be as many as 20 days of unpaid leave for public-defender employees.

But as damaging as sequestration has been for the federal defender program this year, it faces virtual extinction if the cuts continue into next year, according to Michael Nachmanoff, the federal public defender for the Eastern District of Virginia.

Federal public defenders represent people accused of federal crimes who are unable to afford an attorney — about 90 percent of defendants charged in federal court.

Sequestration reduced spending on defender services (part of the Judiciary budget) by $51 million — about 9 percent — this fiscal year. In 2014, the defender budget faces a further reduction of 14 percent.

"Sequestration has hit us very hard," Nachmanoff told the Federal Drive with Tom Temin and Emily Kopp. In addition to sequestration, federal public defender offices also faced cuts from within the Judiciary budget this year.

For Nachmanoff's office, that meant across-the-board furloughs.

"All employees, from the receptionist all the way up to me, have lost almost three weeks of pay," he said.

The office has also seen its staff size shrink by about 10 percent because of early retirements and layoffs, Nachmanoff said.

Nationwide, federal public defender offices currently face between 15 and 20 furlough days and have had to consider declining work from indigent clients.

Nachmanoff said his office has had to turn down death-penalty cases, international fraud cases and other resource-intensive cases because of the cuts.

"And that's just going to get worse in the year to come," he said.

Nachmanoff and other federal public defenders argue that the furloughs, layoffs and declined cases may not even end up saving the government much money. Because defendants have a consitutional right to a lawyer even if they can't afford one, courts also appoint counsel from private practice who then bill the government for their services — a practice which is likely to increase considering the budget constraints facing public defenders.

"So the effect of the federal budget cuts to federal defenders ... are ultimately going to have the impact of increasing government spending," he said. "So it really is cutting of one's nose to spite one's own face."

Unfair fight?

Nachmanoff said he worries the cuts threaten to weaken the role of federal public defenders that no amount of charity or pro bono work can make up for.

"Federal criminal law is complex; it requires an expertise that few people in private practice have," he said. "And although it may be done with good intentions, it's no substitute for the institutional defense function that federal defenders provide."

Sequestration could also contribute to an unfair fight in the courtroom.

The Justice Department, the agency which federal defenders litigate against, has not had to furlough any employees. While sequestration took a chunk from the agency's budget, Attorney General Eric Holder used reprogramming authority to blunt the cuts' impact and to stave off forced time off for employees.

Nachmanoff said he would like to see the administrators of the Judiciary budget granted reprogramming authority as well.

Federal defenders are also trying to raise awareness on Capitol Hill of the dire consequences for the defender services budget if the cuts continue.

In 2014, employees in Nachmanoff's office will face 97 furlough days (if all staff were kept on board) — a practical impossibility.

"That is simply untenable," he said. "The program really faces complete destruction unless both the Judiciary and Congress act very soon."

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