How Eric Holder Can Help Public Defenders and Their Clients

by Andrew Cohen on August 26, 2013

America’s most powerful prosecutor is urging Congress to give funding back to defense lawyers. But actions speak louder than words.

For the past few months The Atlantic has been covering the sequester’s growing impact on the ability of the federal judiciary to administer justice in a timely, fair and efficient manner without the money it needs. Judges and court administrators have been warning all along that litigants — the American people — would begin to feel more of the effects of the budget cuts as 2013 proceeded without a resolution of the sequester fight between Congress and the White House. It’s now happening. Fewer courtroom hours. Longer waits for trials and rulings. Layoffs to courthouse personnel and public defenders. And it’s going to get worse in 2014.

All of which is why Attorney General Eric Holder was right to write an op-ed Thursday in The Washington Post about the need for Congress to restore funding for federal public defenders who have been hammered by the sequester. It is comforting to see the nation’s top prosecutor asking lawmakers to restore funding to the nation’s court-appointed defense lawyers. And I think the attorney general genuinely cares about the faltering right to counsel and about the legacy of Gideon v. Wainwright 50 years after the Supreme Court issued that landmark ruling. Here is part of what Holder wrote in The Post:

I join with those judges, public defenders, legal scholars and countless other criminal justice professionals who have urged Congress to restore these resources, to provide needed funding for the federal public defender program and to fulfill the fundamental promise of our criminal justice system.

The Justice Department is strongly committed to supporting indigent defense efforts through an office known as the Access to Justice Initiative, which I launched in 2010, and a range of grant programs. The department took this commitment to a new level on Aug. 14 by filing a statement of interest in the case of Wilbur v. City of Mt. Vernon — asserting that the federal government has a strong interest in ensuring that all jurisdictions are fulfilling their obligations under Gideon and endorsing limits on the caseloads of public defenders so they can provide quality representation to each client.

But empathy is no substitute for action — when you have the ability and the authority to act. The truth is that the attorney general can help indigent defendants, and the lawyers who represent them, beyond merely asking Congress to restore the funding cuts wrought by the sequester. And he can certainly do more to ease the grim workloads of understaffed public defenders’ offices than by filing a “statement of interest” in a criminal case endorsing limits on those caseloads. The Justice Department is not a passive observer to the catastrophe now befalling the nation’s federal courts as a result of the sequester. It’s partially responsible for it.

Eric Holder doesn’t need to ask permission from Congress or the courts to re-jigger Justice Department policies to better insulate defendants from the burdens of the sequester. For example, he can order his line prosecutors to slow down the pace of criminal filings until the sequester ends, a perfect reasonable move that 87 chief federal judges (87 chief federal judges!) seemed to hint at last week in a remarkable letter to Joe Biden in which they urged him and Congress to do end the sequester’s toll upon the administration of justice.

“Exacerbating the problem in the defenders account is the fact that the Judiciary has no control over the number and nature of cases in which court-appointed counsel must provide a defense. The Department of Justice is not furloughing staff,” the judges wrote. “The pace at which criminal cases require court-appointed counsel has continued unabated, while resources in the Defender Services program are diminishing.” The feds can ease this growing imbalance without triggering “speedy trial” concerns or jeopardizing public safety– as Holder himself recognized last week with the announcement of important sentencing reforms.

Acting in ways to ease the sequester’s impact upon litigants, rather than complaining about the continuing pain of the sequester upon litigants, would be both a proactive and necessary thing for the nation’s chief law enforcement official to do. For example, how long do you suppose this component of the sequester would last if the Justice Department started laying off a prosecutor for each public defender laid off by budget cuts? Don’t laugh. Things are so bad in the nation’s courts that a federal judge last month suggested that the House Judiciary Committee fire one of its lawyers every time a public defender had to be fired as a result of the sequester.

“The joke’s on us,” wrote U.S. District Judge Richard Kopf, sitting in Nebraska. “There is simply no excuse or rationalization for the ongoing destruction of the federal judiciary. None whatsoever.” Indeed, in all my years of covering the federal courts I have never seen so many judges (of both political parties) be willing to be so outspoken about the harm this budget crisis is causing to the nation’s rule of law. These jurists are caught in the middle. The American people obviously are caught in the middle. And it’s time the Justice Department put itself squarely in the middle, too. An op-ed is a good start. But it’s not nearly enough

A Congress that tripped all over itself earlier this year to ensure that there would be no flight delays because of the sequester has been remarkably content to run our judiciary into the ground– and to then hide from the blame that comes with refusing to adequately fund the third branch of government. “When cases lag,” the judges told Vice President Biden last week, “the Judiciary is seen as inefficient, or worse, unsympathetic to litigants ranging from pro-se litigants (who represent themselves) to individuals and companies seeking bankruptcy relief or the resolution of civil disputes to the government and defendants in criminal cases.”

Eric Holder, the wizened Washington insider, understands all this. He understands that part of this budget fight is ideological as well– that many Republicans in Congress see political value in reducing the federal judiciary’s power in any event. Which is why he should be raising the stakes instead of writing articles. Knowing the judiciary is behind him, and on behalf of litigants everywhere, the attorney general ought to slow down the federal criminal justice system– a “solidarity strike,” you could call it– until Congress restores funding for all of the constitutional functions that system requires. If lawmakers are going to treat the judiciary like it’s a third-world operation perhaps its time to show those lawmakers what a third-world operation actually looks like.

This piece first appeared in

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