For the past eight months, Miriam Conrad has been representing Dzhokhar Tsarnaev, the man accused of the Boston Marathon bombings. It may be the highest-profile case of her more than 20-year career as a federal pubic defender. And she’s been doing at least some of the work without being paid.
The reason: Conrad, like the other 18 lawyers at the Federal Public Defender Office for the Districts of Massachusetts, New Hampshire and Rhode Island, was furloughed as a result of automatic budget cuts known as the sequester.
2013 has been a tough year for the federal public defender’s office in Boston. As the lawyers prepared for what may be their biggest case ever, the defense of Tsarnaev, they faced budget cuts the likes of which the office has never seen. With a new agreement reducing the likelihood of further cuts, the crisis may have eased but the scars remain.
Sequestration—a series of automatic, across-the-board budget cuts meant to pressure Congress to reach a budget agreement—led to a 10 percent reduction in the federal public defender system budget for the fiscal year that ended Sept. 30. The 2013 cuts caused significant disruption to the nation’s 81 federal public defender offices, including furloughs, layoffs, case delays and fewer training programs for attorneys. They have also resulted in more cases being assigned to costlier private attorneys at the government’s expense.
In Conrad’s Boston office, the loss of resources has resulted in heavier caseloads, a longer wait time between trials and a sense of powerlessness in the face of the law.
Conrad, chief federal public defender for Massachusetts, New Hampshire and Rhode Island, has overseen the office since 2005.
Page Kelley, a member of Conrad’s office who has been a federal public defender for 12 years, said, “You really felt like you’d been working really hard, and doing great, and then all of a sudden you’re just getting slapped in the face.”
Though she and her colleagues have suffered workload increases, Kelley worries that the real victims of sequestration are her clients. She said that, with the budget decrease, their representation is in danger of being compromised.
“A lot of people would say, ‘Don’t work through your furlough; just go home.’ And I would say, ‘Yeah, but what do I do about the client who is waiting to get out?’
“I have to get this guy out,” she said, “whether I’m getting paid for it or not.”
Each year, Congress provides approximately $1 billion for the representation of criminal defendants who cannot afford their own lawyer. This funding is split between the nation’s federal public defender program, which represents about 60 percent of all criminal defendants in the federal court system, and private attorneys who represent clients unable to be represented by a federal public defender due to conflicts or other reasons.
Earlier this year, federal public defender offices were told that their budgets would be reduced by up to 23 percent due to sequester cuts made to the overall judiciary budget. In mid-August, the judiciary decided to reallocate the cuts so that the entire burden did not fall on the federal public defender system. Criminal Justice Act rates—the hourly rates paid to private lawyers who take on appointed cases—were cut from $125 to $110. Federal public defender services also received an additional $26 million to help pay off deferred payments owed to these private attorneys.
Currently, federal public defender offices are looking at an 8 to 9 percent cut from full-funding status. But much remains unclear for 2014.
More than 60 members of Congress, including three representatives from Massachusetts, are concerned about the implications of the cuts on the criminal justice system.
“By allowing sequestration to continue, this Congress is abandoning our constitutional principles and jeopardizing the ability of federal defenders to provide competent and timely legal representation,” said a memo prepared by the members in early November.
The members urged House Speaker John Boehner (R-Ohio) and House Democratic Leader Nancy Pelosi (D-Calif.) to reach an agreement and mitigate the effect of the cuts.
“The right to be represented by an attorney is established by the Constitution, but it is the duty of Congress to provide adequate funding to ensure that this constitutional right is maintained,” they said.
Although there have been no layoffs in her office, Conrad said she has lost staff as a result of people moving to other positions or relocating geographically. When the situation looked particularly dire, she offered buyouts and early retirement to a handful of people.
“As a result, two people took buyouts and we lost staff for other reasons whom we can’t replace,” she said.
Conrad and Kelley were not the only ones who worked some days without pay. According to Conrad, there wasn’t a single lawyer who didn’t work at least some point during the office’s 12-day furlough. She sees the furloughs amounting to a “pay cut.”
“There’s money that I would have in my pocket that I don’t,” said Christopher Skinner, a long-time Massachusetts state public defender who became a federal public defender two years ago.
Federal public defenders generally make between $50,000 and $130,000 a year, with variations based on experience, seniority and location.
Skinner said that the pay cut will not affect his decision to remain a federal public defender. “The fact that the powers that be couldn’t get their act together to un-sequester is shameful,” he said. “But, you know, I don’t agree with a lot of what goes on in Washington. Nobody ever asks me.”
Jane Peachy, who has been an assistant federal public defender for two years, felt as if the cuts were somewhat of an insult. She said they have inspired her to fight even harder for her clients.
“It’s not the security I was anticipating having, being a federal public defender. But it’s what I’ve dedicated my life to … I’m very proud to have become a federal public defender, and I’m not going anywhere.”
Harry Stein, associate director of fiscal policy at the Center for American Progress, said that the problem with sequestration is that it has made cuts to little-noticed but critical functions of the government.
“If people don’t have access to an attorney and can’t get a fair trial, that hurts all of us—even if most of us don’t ever actually need a federal public defender,” he said.
Stein said a deal is in the works that will avert a government shutdown in January by replacing a part of the sequester with increased fees and cuts to mandatory spending programs.
“Of course, the details of that deal will matter,” he said. “But it’s hopeful to see both sides serious about at least reducing the impact.
Conrad said she had “no idea” whether Congress will end up reaching an agreement. She does not know what will happen when the additional funds run out in January.
“We don’t know what our full-year picture looks like,” she said. “We don’t know what Congress is going to do for the rest of the fiscal year, when the current allocation runs out.”
