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Will the sequester mute Gideon’s trumpet?

August 23, 2013 by NCC Staff


As permanent budget cuts known as the sequester loom past September, there’s growing concern that cutbacks in public defender funding will chill Sixth Amendment privileges that came from a famous Supreme Court decision.

Clarence Earl Gideon

The public defender system expanded greatly expanded in the past 50 years after the 1963 decision in Gideon v. Wainwright. The highly publicized case led the 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 defence."

An equally significant book from Anthony Lewis, “Gideon’s Trumpet,” memorialized the case in our culture.

But now, seemingly permanent cuts to the public defenders’ budget have led to high-profile protests from the legal sector.

In an op-ed piece on Wednesday in The Wall Street Journal, jointly signed by the conservative Paul Cassell and the liberal Nancy Gernter, both former federal trial judges are lamenting 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.

Cassell and Gernter said the budget cuts will lead to costly mistakes.

“Without balanced, vigorously litigated cases, wrongful convictions may become more common, imprisoning the innocent and allowing the guilty to walk free,” they argued.

“Only with full funding of federal defenders will we avoid the ripple effect that will clog judicial dockets, delay both criminal and civil proceedings in federal courts—and undermine the efficiency of a federal defender system that has effectively served justice for the past 40 years,” they concluded.

On Thursday, U.S. attorney general Eric Holder 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.

In April, two federal judges made a direct case for the public defender budget to be excluded from across-the-board or targeted sequester cuts, which will continue past this September if a budget deal isn’t reached in Washington.

“The effect of sequestration on the courts severely threatens the rights guaranteed by the Sixth Amendment to those accused of crimes and, in the process, threatens our federal judiciary’s reputation as one of the world’s premier legal systems. This is a price we cannot afford to pay,” said Paul L. Friedman and Reggie B. Walton, who are federal judges on the U.S. District Court for the District of Columbia.

Friedman and Walton pointed to the words of Alexander Hamilton to explain that the judicial branch is heavily dependent on the executive and legislative branches because it doesn’t set its own budget and it doesn’t enforce its decisions.

The judiciary “is beyond comparison the weakest of the three departments of power,” Hamilton said, because it has “neither force nor will, but merely judgment.”

Also last week, Congress received a letter from 87 federal judges who said that cuts would “profoundly compromise” their ability to perform their constitutional duties.

But Congress is currently on recess until after Labor Day, and it will have just three weeks to get a new budget passed by October – unless it passes temporary funding.

The sequester is expected to be one of many pawns in a budget battle that includes debates over the debt ceiling, funding for Obamacare, and permanent cuts to social programs. So hoped are dim, at the moment, for a short-term solution.

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