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Photo of Matt M. McClenahen
Photo of Matt M. McClenahen

Sequester is Slowing Down the Wheels of Justice

On Behalf of | Apr 4, 2013 | Sequester

Amid all the talk of the effects of the sequester, the mainstream media has provided surprisingly little coverage of the sequester’s effect on the federal justice system. Both the Department of Justice, which prosecutes federal criminal cases, and the Federal Defenders offices, which represent indigent defendant in federal criminal cases, have faced crippling cuts to their budgets. Both the DOJ and Federal Defenders have been forced to place valued attorneys and support staff on lengthy furloughs, until the budget crisis is solved.

With fewer federal agents and prosecutors, more federal crimes will neither be investigated nor prosecuted. That would not be a big deal if we were just talking about raids on harmless, aging hippy marijuana farmers in Northern California, which are a waste of prosecutorial resources and tax payer money anyway, however, we are also talking about the investigation and prosecution of real criminals, like terrorists, financial criminals, internet fraudsters and online pedophiles.

In addition to federal prosecutions being stymied, so too will the defense in most federal prosecutions be compromised. Federal Defenders offices have long been understaffed and overworked as it is. With even fewer lawyers and support staff, these offices will have to turn away indigent defendants who would otherwise qualify for free legal representation. Judges will still have to find defense lawyers for these defendants, with the only alternative being to appoint private counsel at the rate of $125 per hour. This results in far greater costs to the tax payers in the long run. It is as if the judicial branch of government is being forced to take out a high interest payday loan because the legislative branch cannot get it act together.

When the Federal Defenders litigate a case, they often must rely upon expert witnesses and interpreters. These people are paid out of the annual budgets allotted to each Federal Defender’s office. A common type of expert witness is the forensic psychiatrist, as a high percentage of criminal defendants are mentally ill, and often not competent to stand trial until forced to take psychotropic medication. Although most mentally ill defendants are prosecuted in the state system, it may come as no surprise that those charged federally for things like writing threatening letters to government officials are very often mentally ill.

Even if a defendant is obviously schizophrenic and babbling nonsense, a judge cannot simply order the defendant to undergo involuntary psychiatric treatment. First, a forensic psychiatrist must evaluate him and recommend a prescribed course of treatment reasonably designed to make him competent. With the Sequester, funds for expert witnesses just are not there. Thus, mentally ill defendants will languish in pretrial detention, untreated, until funds are once again available.

It is not just the justice system itself, which is harmed by the Sequester; so too are those working in the justice system. Both federal prosecutors and defenders offices are composed disproportionately of young attorneys within ten years of graduating from law school. This is true of both the federal and state systems. Quite simply, this is how an attorney learns the practice of criminal law and litigation skills before entering the far more lucrative, private practice. It’s analogous to most commercial pilots first learning how to fly in the military. And when the furloughs are being handed out, those with the least seniority are going to take the brunt of the missed pay checks.

These overworked and underpaid, young prosecutors and defenders graduate with student loan debt, which has excelled each year well beyond the pace of inflation and pay raises. If these young attorneys are laid off, they may not even be able to make their car payments and rent, let alone pay off student loans. I myself started my criminal defense career as a public defender, so I have first hand knowledge of barely scraping by under the weight of student loans. And then there is the support staff in these offices, who might not have student loans, but are not exactly on easy street either. Many of the clerical and secretarial workers are single moms, who are not paid well compared to their big law firm counterparts, but do receive generous federal employee benefits. These women, many of whom live pay check to pay check, will be in dire straights if furloughed for several months.

Quite simply, the federal justice system cannot sustain a prolonged reduction in funding. One of the hallmarks of a first world country is a fair and efficient justice system, while third world countries tend to have dysfunctional justice systems. When the justice system goes, so too do are freedoms, security and overall quality of life.

Matt McClenahen is a criminal defense attorney in State College, PA.

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