TAMPA - Federal public defenders are used to being underdogs.
And now with federal budget cuts hitting the justice system, the lawyers who represent indigent criminal defendants are facing the harshest effects of the federal budget cuts known as sequestration.
While the U.S. Attorney's Office in the Middle District of Florida has been able to hire prosecutors this year, public defenders and staff are facing layoffs and furloughs. The courts here have stopped hearing most criminal matters on Fridays, mostly because of the public defenders' troubles.
This fiscal year, the public defender's office has had to absorb a 10 ½ percent budget cut, according to office officials; projections now are for an additional 23 percent cut in the next fiscal year, which starts in October.
If nothing is done, the office is on track to lose a third of its staff while the number of criminal cases continues to rise in the district.
"This is absolutely the worst thing that's ever happened to our program," said Public Defender Donna Elm, who is in charge of 84 attorneys, investigators and other staff in the defender's office for the Middle District of Florida. The district encompasses five courthouses and stretches from the northern border of Florida south to Fort Myers. Public defenders currently represent 76 percent of all federal criminal defendants.
As hard as the budget cuts have been for defenders, officials say they are likely to cost the taxpayers money. That's because indigent criminal defendants are constitutionally entitled to taxpayer-funded lawyers. If public defenders are forced to decline cases, judges will have to appoint private lawyers, who cost more.
According to Elm, court-appointed, private lawyers are paid $125 an hour for most cases and $175 an hour for death penalty cases. Federal public defenders are paid $24 to $73 per hour for all cases, she said.
Although most federal agencies had a 5 percent cut this year, Elm said the effect was increased for public defenders because of the way money is budgeted for indigent defense work. Officials decided not to cut the funds used to pay court-appointed private attorneys, known as CJA lawyers for the Criminal Justice Act, the law that governs their appointments. Consequently, public defenders were cut more.
"It's one thing to take out one person and cover for them, but when you do that broad a hit, how we defend cases, how we would be able to defend cases and make sure we are getting everything done is very doubtful," Elm said of the projected cuts. "There's all kind of ethics requirement about investigating cases,talking to witnesses, duties to go talk to your client about a variety of things, of course, appearing in court for all appearances. These are all ethically required and it will become very difficult for us if we undergo these cuts that are anticipated. It will be difficult for us, and a lot of cases will start going out to CJA at a higher rate."
CJA lawyers are appointed when the public defender's office has a conflict of interest, such as representing a co-defendant or a victim in a case. But if public defender budget cuts force the appointment of more CJA lawyers, the fund for those appointments could also run short.
Chief Judge Anne C. Conway said the courts have cut as much as possible from their own budgets without affecting service to the public. "The biggest problem is with the federal defenders so far," she said. "We've had to tighten our belt like everyone else. The prospect for the future doesn't look so good."
Middle District Court Clerk Sheryl Loesch said she had to lay off seven employees in March, including three in Tampa. The layoffs could have been worse, but Loesch said she hasn't filled job openings since last year.
The clerk's office is authorized to have 186 employees because of its workload, she said, but now has 127, down from 139 last year. Nationally, she said, federal courts are at 1999 staffing levels. That's roughly where they are in the district here, Loesch said.
Loesch spoke from Washington, where she was in meetings at the Administrative Office of the Courts. She said clerks were told Thursday to expect the next fiscal year to start with a continuing budget resolution. "It's, in essence, a hard freeze," she said. "We are probably facing a decline of another 39 positions. It's going to be a disaster. I don't even have words to describe it. We're not alone. This is all district courts in the country."
Earlier this year, Elm had to lay off an attorney, two clerical workers and an investigator. Others took early retirement or left on their own in the face of those cuts, Elm said. She lost her chief administrative officer, another attorney, three investigators, two legal assistants and an IT technician.
The attorney who was laid off volunteered to continue working without a salary, Elm said. He recently landed a public defender job in Ohio.
"He loved his job, cared for his clients, and wanted to keep doing this until he could find another job," said Elm, who called the lawyer "pretty amazing." She didn't want to release his name, and said he preferred not to talk about what happened.
The remaining staff have had to take 13 furlough days. The furloughs have been on Fridays when the courts are hearing only emergency criminal matters. Elm said employees work nights and weekends to make up for their forced Fridays off.
"We still have to do the work," she said. "We still have to represent these clients.''
Elm said if nothing changes by October, she will have to lose 29 out of her 84 employees. She has already sent out layoff notices to staff members she expects to lose in October to give them time to look for jobs.
Conway said one possibility if the cuts go into effect will be that some defendants may have to be freed because the courts failed to try their cases in time to meet legally mandated speedy trial deadlines. "If you don't try them within 70 days, they're free," she said. "They're dismissed."
Court officials also say civil trials could be delayed for lack of court resources.
But while the courts and public defenders have had to shed employees, the U.S. Attorney's Office has added staff. "We've been really fortunate because over the past couple of years, we were able to hire probably more (assistant U.S. Attorneys) than probably any office in the country because the Department of Justice recognized we were a large district, probably one of the biggest districts in the country, and we were under resourced compared to comparable districts," said Acting U.S. Attorney Lee Bentley. He said the hiring has stopped and the office is now under a hard hiring freeze.
Bentley's office has 113 assistant U.S. attorneys district-wide, including 57 in the Tampa office. Since January 2011, the office has hired about 24 assistant U.S. attorneys, including four this fiscal year, according to Bentley. "Hiring has allowed us to stay at a constant level, rather than suffering a net loss due to attrition," he said.
"We were very fortunate this year we were not required to furlough any employees and we will not have to furlough any employees through the end of this fiscal year, which ends Sept. 30," Bentley said. "We cut back on a lot of our expenses.We've had to limit foreign travel even if it would help a case to interview a witness overseas.''
Bentley said the office also has cut training expenses, trying to do more training in-house to reduce costs. He said the office has been told it might have to furlough employees next year.
Bentley is not happy about the public defender budget cuts. "The attorneys there play a critical role in the system, and without the quality of representation that they provide, the system simply cannot function effectively," he said.
A U.S. Senate subcommittee convened a hearing last week into the effects of sequestration on the justice system.
Subcommittee Chairman Christopher Coons, D-Del., noted this year is the 50th anniversary of Gideon vs. Wainwright, the Supreme Court decision that extended the right to counsel to all criminal defendants facing prison.
He said most measures being considered by the courts to address budget issues would come with "significant pain."
"One proposal - to simply not schedule civil jury trials in the month of September - would effectively impose a 30-day uncertainty tax on every civil litigant before the courts," he said. "A judge in Nebraska has threatened to dismiss so-called 'low priority' immigration-status crimes because of a lack of adequate capacity. In New York, deep furlough cuts to the public defender's office caused the delay of the criminal trial for Osama bin Laden's son-in-law and former al-Qaeda spokesman Sulaiman Abu Ghaith."
Elm said the cuts so far have not affected the quality of the representation afforded clients, but that will likely change if the next round of cuts take place. So why not continue to operate on the current lower budget? "You can only overwork people for a little while," she said.