December 9, 2013

The Unfulfilled Promise of Gideon

Gideon v. Wainwright, Nanci Clarence

by Nanci Clarence, Clarence Dyer & Cohen LLP; Member, Board of Advisors, ACS Bay Area Lawyer Chapter

This year should be a cause for celebration, as we mark the 50th anniversary of the right to counsel for indigent defendants recognized by the Supreme Court in Gideon v. Wainwright. Sadly, in the last year we have seen that critical right threatened by sequestration and budget cuts that jeopardize the stability of Federal Defender organizations, and that undermine the ability of Criminal Justice Act (CJA) counsel to represent these clients most in need.

Federal Defender organizations and CJA panels represent clients charged with federal offenses in over 200,000 cases each year – 90% of the defendants in federal court. This system of funded Defender organizations and private CJA counsel have together represented a model of quality and cost-effective representation, and have been protecting the adversarial system of justice for the past forty years.

This successful model is now at risk. In Fiscal Year 2013, Federal Defenders suffered a 10% cut to their budgets due to sequestration. Hundreds of full-time positions were lost, with over 10% of staff being terminated or lost to early retirement. The Defender offices were also forced to impose over 160,000 hours of unpaid furloughs. While Federal Defenders’ budgets were slashed, the Justice Department avoided furloughs for all of its employees. These cuts create greater long-term expenses through delays in litigation and longer pretrial detention.

At the end of Fiscal Year 2013, the Executive Committee of the Judicial Conference of the United States adopted emergency measures to save the Defender programs from the severe impacts of sequestration. Unfortunately, those measures required the deferral of CJA payments for up to four weeks, and the temporary reduction of $15 per hour of the CJA panel rate. This rate cut to CJA counsel undermines a rate that was secured after years of effort, and poses a real threat to the ability of private counsel to continue their vital service to the Court by providing indigent defense.

The current fiscal year (FY 2014) began on October 1, 2013, and brings with it much uncertainty. CJA deferrals and the rate cut remain in effect, making it difficult to secure private counsel for expensive and long-term prosecutions such as capital litigation or RICO charges. Defenders face a 9.35% cut in their necessary funding for FY 2014, and are taking emergency measures to respond to these shortfalls. As Congressman Mike Quigley (D-Ill.) has written, “The budget cuts that the federal public defender system will sustain in the upcoming fiscal year threaten to unravel the very fabric of our judicial system: the right to a fair trial.”

There is some hope, however: on October 16, 2013, Congress passed a Continuing Resolution, subsequently signed by President Obama, providing $26 million in a stopgap anomaly to the Defender Services account. This anomaly was a welcome start to solving the funding gap, but falls short of the funds needed to restore full indigent defense in federal court.

To give meaning to the Sixth Amendment, to honor Gideon’s legacy, and to protect our adversarial system of justice, we need to restore full funding to both partners in indigent defense: CJA counsel and Defender organizations. We hope that we will be able to celebrate Gideon’s 50th anniversary with a restoration of full funding to Defender Services, and the elimination of CJA deferrals and rate cuts. The promise of Gideon lives on only if we as a nation fund these services and ensure the survival of the Federal Defender organizations.