Federal courts continue warnings about budget and the Sixth Amendment

As a new year starts, the Chief Justice of the United States and top officials in the federal court system continue to warn about budget cuts that will make it harder for people to have access to public defenders.


Chief Justice John Roberts has repeated warnings he issued in 2012 about the lack of funding for the federal court system, which he helps to oversee. Those warnings came about three weeks after similar requests from two top officials at the Administrative Office of the U.S. Courts.

On December 5, 2013, Judges John D. Bates and Julia S. Gibbons wrote Congress about the dire need for more funds for a federal court system that was strained before mandated sequester cuts took effect after the 2013 budget battle in Congress.

“Sequestration cuts to the Defender Systems program threaten the ability of the Judiciary to provide court-appointed for persons accused of a federal crime,” said Gibbons and Bates, who said that federal defender programs were cut by 11 percent during the sequester period last year.

About 90 percent of people in federal criminal cases use court-appointed counsel.

The letter was issued just before a budget deal was reached in Congress to restore some funding to government agencies.

In the budget deal cut by Representative Paul Ryan and Senator Patty Murray, some money for the next two years will be coming back to discretionary programs run by federal agencies. But the amount of funds restored will be decided by appropriations committees in Congress in mid-January.

And that isn’t enough to satisfy Chief Justice Roberts, who spelled out his concerns in a 15-page report issued on New Year’s Eve.

Among the arguments made by the Chief Justice to Congress is the fact that most federal court spending is on programs mandated by law, and the federal justice system just doesn’t have many discretionary programs to cut. In fact, it will need to cut its budget by 3 percent to accommodate “must pay” programs- before funds are restored from the sequester.

“Those cuts would lead to the loss of an estimated additional 1,000 court staff. The first consequence would be greater delays in resolving civil and criminal cases,” Roberts said. “In the civil and bankruptcy venues, further consequences would include commercial uncertainty, lost opportunities, and unvindicated rights. In the criminal venues, those consequences pose a genuine threat to public safety.”

And the more basic threat is to the sanctity of the Sixth Amendment, Roberts said, if sequester cuts are restored.

“There are fewer public defenders available to vindicate the Constitution’s guarantee of counsel to indigent criminal defendants, which leads to postponed trials and delayed justice for the innocent and guilty alike,” he said.

The public defender system has greatly expanded in the past 50 years after the 1963 decision in Gideon v. Wainwright. The highly publicized case led the Supreme Court to conclude that the Constitution required state-provided legal counsel in criminal cases for defendants who are unable to afford to pay their own attorneys.

The Gideon decision touched on three amendments—the Sixth amendment, the 14th Amendment and the Fifth Amendment. But the Sixth Amendment was at the decision’s core.

The Court ruled that the Constitution’s Sixth Amendment gives defendants the right to counsel in criminal trials where the defendant is charged with a serious offense even if they cannot afford one themselves; it states that “in all criminal prosecutions, the accused shall enjoy the right to … have the Assistance of Counsel for his defense.”

Last fall, when the sequester cuts went into place, there was heavy criticism from legal circles of its effects on the federal public defender system.

In an op-ed piece in The Wall Street Journal, jointly signed by conservative Paul Cassell and liberal Nancy Gernter, the former federal trial judges lamented the drastic impact of sequestration on budgets for public defender offices.

“[D]ue to the combination of general budget austerity and sequestration, the federal public defender system — a model of effective indigent defense for the past 40 years — is being decimated. As former federal judges from opposite ends of the ideological spectrum, we both understand that these shortsighted cuts threaten not only to cripple the federal defender system, but to disrupt the entire federal judiciary—without producing the promised cost savings,” they said.

U.S. attorney general Eric Holder also submitted his own op-ed piece to the Washington Post on the same topic.

“Despite the promise of the court’s ruling in Gideon, however, the U.S. indigent defense systems — which provide representation to those who cannot afford it — are in financial crisis, plagued by crushing caseloads and insufficient resources,” said Holder.

“Five decades after the Supreme Court affirmed that adequate legal representation is a basic right, sequestration is undermining our ability to realize this fundamental promise. The moral and societal costs of inadequate representation are too great to measure,” he added.

What happens next in the budget process is uncertain, but in an appendix to his annual report, Chief Justice Roberts said that while civil case filings at U.S. district courts were up 2 percent in 2013, there were declines in case loads in other courts.

For example, filings for criminal cases fell by three percent to 91,266. But that doesn’t necessarily represent the case load for people seeking defense help in federal cases.

Chief Justice Roberts is hoping for $1.04 billion in funding for 210,000 defense representations next year, with part of that money going to pay bills that were delayed in last year’s sequester.

In the current continuing resolution (CR) that is funding the federal government, about $26 million was restored from the sequester to pay for some vouchers related to the public defender program.

The Defender Services Office, which trains attorneys who work as public defenders in federal cases, has been blunt in its opinion about the budget cuts.

“There is no indication of what the funding situation will be beyond the expiration of the CR in January. Without a full-year appropriation that is greater than the CR level, [federal defender offices] will continue to see a budget shortfall,” the division said on its website.

In July 2013, Judges Bates and Gibbons told the Senate that reduced funding for public defenders represented a broader problem.

“Our nation recently celebrated the 50th anniversary of the 1963 landmark Supreme Court decision in Gideon v. Wainwright, which guaranteed an individual the right to court-appointed counsel,” they said. “Funding cuts are threatening that very right, a right that has been a bedrock principle of our criminal justice system for half a century.”

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