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Legal representation for the poor is taking a hit as the sweeping federal budget sequester reduces funding for public defenders. The federal public defender for the District of Columbia joins Kojo to explore the challenges confronting attorneys who provide the only counsel available to poor defendants.
- AJ Kramer Federal Public Defender for the District of Columbia
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, "Our Nixon," a new documentary that explores one of the most controversial presidencies in American history through the lens of a Super 8 camera. But first, how a more recent turbulent period in our history is affecting poor Americans in need of legal representation.
MR. KOJO NNAMDIThe sweeping federal budget cuts enacted earlier this year hit many government agencies square in the teeth, and public defenders around the country say the hits they're taking are felt even harder by those who need their services. The so-called sequester is already forcing public defenders to take furloughs and postpone criminal proceedings, and cuts coming down the pipe could make life even harder for these attorneys who represent the vast majority of America's indigent defendants, the group that also comprises the overwhelming majority of defendants in federal court.
MR. KOJO NNAMDIJoining us to provide a perspective from the front lines is A.J. Kramer, the federal public defender for the District of Columbia. A.J. Kramer joins us in studio. Thank you so much for joining us.
MR. A.J. KRAMERThank you very much. It's both an honor and a privilege to be here. Thank you.
NNAMDIWe'd love to have you join the conversation. Call us at 800-433-8850. What concerns do you have about the sequester and how it's affecting our legal system and those who count on public defenders for representation? 800-433-8850, or you can send email to email@example.com. A.J., some of those who made the loudest noises about sequestration before it happened were people who stood to lose a lot of money, as in profits, contractors who depend on defense spending and the like.
NNAMDIBut one of your colleagues told a Senate panel last week that public defenders and the people who count on you for representation are on the verge of being crippled. What kind of hit are you taking?
KRAMERThat's right. It is on the verge of devastation of the federal public defender system. We took a 10 percent -- 9.5 percent cut this year, this fiscal year 2013, which ends Sept. 30. That caused widespread layoffs and even more widespread furloughs in offices around the country. And we're scheduled Oct. 1, which is the beginning of the new fiscal year, to take an even larger budget cut which could result in layoffs around the country of 33 to 50 percent of staff in offices around the country. So it's just -- devastation is the correct word.
NNAMDIIt's my understanding that U.S. courts, U.S. attorneys were spared furloughs, along with U.S. marshals, but the defenders are paid through a separate funding stream. Where does your funding come from, and why was not a similar reprieve offered to defenders?
KRAMEROur funding is part of the court, so we're -- the Justice Department obviously is an executive agency, and they get their funding, and they are -- have been fairly well funded. They avoided any layoffs, as far as I know. The court system in general has had terrible problems with staffing the past two or three years.
KRAMERThe federal public defender system in the -- has been -- attorneys representing indigent defendants has been particularly hard-hit because our budgets are composed of essentially personnel and rent. And that's about 92 percent of our budget, and there's very little else in our budget we can cut. So when there's budget cuts, it almost all has to come from personnel because rent is a fixed cost that we have to pay for.
NNAMDIHow many attorneys do you currently have in your office?
KRAMERWe currently have 13 attorneys besides myself. We're actually authorized to have 18. But because of budget problems, we've kept vacancies the past several years.
NNAMDIWell, what's likely to happen later this year? More cuts are on the way in October, correct?
KRAMERYes. We may have to cut up to half of our staff in October. It may get us down to seven or eight attorneys, and that would be devastating to our office. We would not be able to represent many people anymore whom we currently represent. We would have to cut back on services we provide to lawyers, other lawyers doing cases.
KRAMERAnd the irony of the whole thing is that if our office could not do the cases, they have to be assigned what's called the CJA lawyers, Criminal Justice Act lawyers, who end up being -- costing the judiciary and the public more money than our offices. We're most cost-effective. So it's -- the irony of it is that as we're devastated, it will cost the taxpayers more.
NNAMDIBecause the law says that a defendant has to have an attorney representing him or her. And if you cannot do it, then under the CJA, or the Criminal Justice Act, the court is allowed to appoint a private attorney, and they invariably cost more than you do.
KRAMERThat's exactly right. And 50 -- ironically, 50 years ago, Gideon v. Wainwright, the Supreme Court said people accused of crimes, who could be subject to jail, the government or the state must provide an attorney for them. That started the formation of federal public defender offices and the private CJA lawyers who represent people. And it's correct that if our office doesn't represent somebody, a private attorney is paid an hourly rate, which is fairly low, but even still, they're more expensive than our office.
NNAMDIAnd for those people who may be thinking that because this is a private attorney, that it is likely to be a more better attorney than the public defender's office. It is my understanding that public defenders generally have more experience in defending these cases than these private attorneys do.
KRAMERRight. I don't want to say that we're better than other lawyers, but we -- our offices are built solely to do one thing, and that's defend people accused of federal crimes. And with the increasing complexity of federal law and the types of cases, doing that full time obviously gives a benefit to somebody.
NNAMDIIn case you're just joining us, our guest is A.J. Kramer. He is the federal public defender for the District of Columbia. And we're discussing cuts caused by the so-called sequester in the offices of federal public defenders around the country, causing delays in trial and cutbacks in staff. If you'd like to join the conversation, call us at 800-433-8850. Have you ever been represented by a public defender?
NNAMDIDo you think people misunderstand the role that these defenders play in our legal system? 800-433-8850. A.J. Kramer, how have these cuts already affected life inside your courthouse? It's been reported that as many as 2,700 jobs could be lost during the next two years, that defenders are ending employee training, which you'll have to explain -- I don't know what that means -- and that they don't have money to pay for expert witnesses.
KRAMERThat's exactly right. Also, I'll start with the training part. Federal law constantly changes with court decisions, with Congress passing new laws, with the sentencing guidelines, and it's very important...
KRAMER...to render somebody effective assistance to keep on what the law is. We don't have any -- we've reduced all our money for training. We don't do any travel for training. We've negotiated with experts to try to cut the rates even more. We've taken steps over the past few years to reduce their rates. We've taken steps even more to cut the use of experts and ask them to reduce their rates. So it's -- and we've had to delay -- ask the court to delay cases because of court proceedings because people are on furloughs and just can't do the work with the furloughs that have been imposed upon us.
NNAMDIWhen I saw that, I remember the widespread phrase justice delayed is justice denied. And so because of budget cuts, in a way, some people would say justice is being denied to quite a few indigent defendants.
KRAMERI think that's absolutely correct. And to the public, which has a -- an interest in the speedy resolution of cases as well. So it's a two-way street, that both the public is denied the speedy resolution of cases and defendants sit longer in jail sometimes, which ends up, again, costing the taxpayer more money because it's expensive to incarcerate people, both pre-trial and post-trial.
NNAMDIWhat kind of caseload are you capable of handling right now in your office?
KRAMEROur attorneys right now have between 30 to 35 cases. They're all -- our office does no misdemeanors. It's all felonies, and that's a caseload that I would call barely manageable. But because of the sequester, it will either have to go up or we will have to give more cases to the private lawyers that, as I said, cost more.
NNAMDI800-433-8850. Outside -- have you ever been represented by a public defender? Give us a call. What concerns do you have about the sequester and how it's affecting our legal system and how it's affecting those who count on public defenders for representation? 800-433-8850. A.J., don your headphones, please, because Mary in Springfield, Va., would like to speak with you. Mary, you're on the air. Go ahead, please.
MARYHello. I just wanted to say that I'm basically a reformed white-collar criminal who was represented by two excellent public defenders in the city of Alexandria. And I can just say in terms of the quality of the attorneys, it was fabulous. And...
NNAMDIWell, that -- go ahead, please.
MARYAnd among other things, I was, through a series of misunderstandings, because I actually pled guilty and was not sentenced to jail, ended up in jail because of a misunderstanding as a restitution payment. And my attorney, in cooperation with the Alexandria jail officials, was able to get me out to attend my father's funeral. So...
NNAMDIYou testify as to the quality of the federal public defenders office.
MARYYes. And I know -- and they worked day and night. I mean, I know they were vastly overrepresented, but they did a great job for me, so...
NNAMDIOK. Mary, thank you very much for that call. Outside of delays, A.J. Kramer, what are your basic concerns about whether the quality of representation for indigent defendants is going to suffer?
KRAMERWell, it concerns me that someone may not do something because they don't have the time. Something may come up on a day that the person's on furlough, that they don't return a call or talk to a witness and then again in the long run, or that because cases may go to less experienced attorneys, coming back, there may be claims that the person was not effectively represented.
KRAMERAnd that, again, in the long run, will end up costing more money than like the last caller, who was very satisfied with her attorneys, which I'm glad to hear. But if something happens that the case is then mishandled, there'll be claims later on that the court system will have to deal with and, again, will end up costing the taxpayers more money because of claims that the case was not properly handled.
NNAMDIWhat concerns do you have about whether these budget issues are going to drive talent away from the public defender system, that gifted lawyers will be less encouraged to get into this line of work?
KRAMERThere's already a number of offices. So far, our office has thankfully been spared that, but a number of offices have already had extremely talented people leave because of the forecast of the dire budget situation for -- it's bad enough this fiscal year with the furlough days, but as far as next fiscal year, people are seeing that they may be -- not positions available anymore for them. And so especially talented people have already left the system and will continue, I'm sure. And that's, again, equally devastating as the experienced people who know how to handle these complex cases we lose.
NNAMDIBecause I want to underscore that the U.S. attorneys offices, because they were -- the Justice Department is able to shift money around, is not having the kinds of layoffs and problems that the public defenders offices are having as a result of the sequester, so that it would appear on the very surface that there is an increased unfair advantage here for U.S. attorneys.
KRAMERWell, sure. I mean, they're not on layoffs. They can do the work during the days. I can tell you, people in our office work nights and weekends even before the furloughs. It's even more so now, which seems more unfair. But, of course, they can -- the U.S. attorneys who are not furloughed can be in the office every day and work on their caseload full time, and that puts us at a great disadvantage in that respect.
NNAMDITo what do you -- degree do you think this situation is affected by a misunderstanding about what government spending actually does? There was a line in a recent Washington Post article that the defender system has become a proxy for a partisan battle about the budget.
KRAMERWell, look, I don't disabuse myself of the notion that lawyers who defend people accused of crimes are not the most popular people in the world or the most popular cause in the world, but I think the framers, Founding Fathers of our Constitution were -- part of the reason they put in various amendments with rights for criminal cases and trials including the right to counsel is that they were concerned about the tyranny of the British through the criminal courts.
KRAMERAnd I think people -- nowadays, if you're accused of a crime, you want the best lawyer you can as things get increasingly more complex and sentences get increasingly more draconian.
NNAMDIOn to the phones again. Here is John in Washington, D.C. John, you're on the air. Go ahead, please.
JOHNYeah. I just like to make a point. There's been references made to the possibility of hiring private attorneys through the CJA program as a way to sort of pick up some of the slack as a result of the sequester and so forth. But I think something that's important to even mind is that the CJA program is not -- in D.C. is not as broad as it used to be. It used to be that anybody pretty much could come and sign up for the CJA program and, you know, take on cases and so forth.
JOHNBut now, for the last couple of years, that hasn't been the case. There's a panel and so forth, and you have to be approved to be on the panel. So there's a limited number of people on the panel and so forth, so it appears to me that there could -- the problem is really -- could be exacerbated in terms of there being a limited number of CJA people to call up to sort of fill this gap. So it just seems as if, you know, it's an even greater disaster because you're not going to be able to just call up the private attorneys, so to speak.
NNAMDIThat's true, John. I was reading about that, and we may have to -- we may -- well, let's ask A.J. Kramer how that panel is put together.
KRAMERWell, it's put together by a committee of the court. And you're right. The court made a decision a while ago that because of the increasing complexity of federal laws and especially the sentencing guidelines, the panel -- there also were not enough cases to go around and that someone had to practice regularly in federal court to get cases to be able to handle them properly and effectively.
KRAMERBut it doesn't matter. And so you're right in that respect, but it wouldn't matter if there were more people or less people on the panel. If the cases have to go to the panel, they cost more in the long run. So the size of the panel doesn't matter to the expenses in that sense. But you're right. It would bring in a larger pool of lawyers, but they would still have to charge for their cases. But the court made the decision that it wanted to make sure that people were experienced enough in the increasing complexity of federal criminal law.
NNAMDIJohn, thank you very much for your call. A.J., do you think the basic integrity of our legal system can remain intact if this path continues?
KRAMERNo. I think it's very -- the quality of representation of those accused of crimes, especially indigents, is extremely important to our system. I mean, Dostoevsky said you judge it by -- judge a society by its criminal justice system. And I think if it's devastating on the federal level, it will send a signal to states as well in the entire country, and I think that would be particularly harmful.
NNAMDIA.J. Kramer is the federal public defender for the District of Columbia. Thank you so much for joining us. Good luck to you.
KRAMERThank you again. I appreciate the opportunity.
NNAMDIWe're going to take a short break. When we come back: "Our Nixon." It's a new documentary exploring one of the most controversial presidencies in American history, and it does it through the lens of a Super 8 camera. I'm Kojo Nnamdi.
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