Federal Budget Cuts Put Public Defenders Between a Rock and a Hard Place

As noted in a recent article on NPR, the sequester is resulting in deep cuts to the Federal Public Defender Program. While these cuts may seem trivial to those not in the legal field, the possible effect of these cuts are, from both an economic and ethical perspective, dire. 

As noted in the NPR piece, the Supreme Court case of Gideon v. Wainwright held that courts are required to provide an attorney to criminal defendants who are unable to hire their own attorney. 372 U.S. 335 (1963). Prior to Gideon, courts were, by and large, only required to appoint counsel to indigent defendants in capital cases. In Gideon's case, he was convicted in the trial where he represented himself, but after the Supreme Court's decision, received a new trial and was subsequently acquitted. Thus, access to effective legal counsel can have a significant effect on the outcome of a case.   

The sequester cuts to the Federal Defender Program raise the issue of whether the legal assistance provided by federal defenders is effective.  If the program is cut so much that federal defenders cannot provide effective assistance of counsel, it opens the door to claims of ineffective assistance of counsel by defendants represented by federal defenders on appeal. This could result in a greater number of appeals, and more cases remanded for new trials. Both would ultimately cost the government a lot of money.  If a trial costs ‘x,’ providing a defendant with a new trial costs "2x." Cutting a few hundred thousand or a few million isn't smart if results in retrials and appeals that end up costing two or three times the cuts.

These cuts also raise ethical concerns as to whether federal defenders are being forced to not fully comply with the Rules of Professional Conduct. ABA Model Rule of Professional Conduct states: "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." If federal defenders are being forced to choose between furloughing their co-workers and hiring an expert witness, it creates a conflict of interest, and if they choose not to hire the expert, a potential violation of Rule 1.1's duty to provide competent representation. Additionally, the situation described in the article where the attorneys were forced to delay a case because they had to take furloughs could potentially violate Model Rules 1.3 and 3.2, both of which require attorneys to act with diligence and expedite litigation.

It may be "sexier" to talk about the Blue Angels cutting the number of air shows they're doing this year or the aircraft carrier that was delayed from leaving port, but however unglamorous this issue may seem, it directly affects every person, rich or poor, in this country. Our success as a nation is founded on a respect for the rule of law. If we allow budget cuts to erode the representation afforded to indigent defendants, it erodes those individuals' respect for the rule of law.

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Matt Fletcher

Chicago native. Criminal defense attorney.

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