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Sitting On Defense

Federal budget cuts come down hard on court-appointed attorneys.

Steven Wax has become famous for taking on some of the toughest court cases in the nation.

As the state's top federal public defender, Wax represented the so-called "Christmas Tree Bomber," Mohamed Mohamud, and the Beaverton lawyer mistakenly accused of the 2004 Madrid train bombings, Brandon Mayfield. He's also fought for the rights of Guantánamo Bay detainees and written a book about his experiences.

But Wax, director of Oregon's Federal Public Defender, says his office is going through “certainly the darkest time in my 30 years.” 

The federal public defenders' office stands to lose as much as one-third of its staff—cuts so deep, Wax says, his office is turning away cases for the first time in its history.

But the cuts—triggered by the automatic, across-the-board reductions known as sequestration—have not fallen on all federal agencies equitably.

The Oregon U.S. Attorney's Office—which gets its funding from a different pot of federal money—isn't being hit as hard. Wax says prosecutors probably won't slow their cases.

"The U.S. attorneys, they control the spigot," he says. "There's no prediction their output will be reduced enough for us to continue to provide the constitutionally required representation for clients."

Amanda Marshall, U.S. attorney for Oregon, says her office will see a cumulative 20 percent budget cut next year. She's laid off nine contracted support staff. Right now, the U.S. attorney has 117 employees; after the cuts, it will have money for 93 positions.

Marshall says her office will handle most of the cuts through furloughs and attrition. Staff attorneys are now doing work a legal secretary once did, she says.

"That's the problem with the sequester, it doesn't really make a lot of sense," Marshall adds. "I don't think taxpayers want to pay attorneys for what a secretary can do."

But the inequity of the cuts has many experts worried.

"If you did a 33 percent cut across both agencies, that would be bad," says Carrie Leonetti, professor of criminal procedure and faculty director of the criminal justice advocacy program at the University of Oregon School of Law. "But doing it in just the defender office is worse."

Leonetti says Oregon's federal public defender office is among the most admired in the country. 

The costs of sequestration are likely to snowball, Leonetti says. People will be kept in prison or on pretrial supervision for longer as cases are delayed, increasing those costs.

"It gets really expensive," she says, "not to mention that it's a draconian imposition of the government on someone's life who is presumed innocent."

U.S. attorneys and public defenders get money from two different branches of the federal government: the prosecutors from the U.S. Department of Justice in the executive branch, the defenders through the federal court system in the judicial branch.

Oregon's federal public defenders handle about 75 percent of all the district's cases—the office opens some 1,500 case files each year—and previously only turned down clients when their office has a conflict of interest, Wax says.

Wax says his office saw an $850,000 cut in its $13.2 million budget last fall. He laid off nine workers and scheduled about 10 unpaid furlough days.

On Oct 1, the start of the new fiscal year, Wax says, his office faces a cut of $2 million more—and he will have to cut staffing to 50 employees, down from 83 a year ago.

Sequestration cuts are being done in the name of national deficit reduction. But cuts to federal public defenders actually cost taxpayers more money.

That's because when federal public defenders can't take a case, it's assigned to private attorneys. Those attorneys bill at $125 an hour—far more, Wax says, than the costs of defending a case through his office.

The federal budget cuts have hit the judicial system as a whole: This spring, Oregon's federal district courts closed on Fridays. Money for pre- and post-supervision treatment is also gone.

Wax says his office met with U.S. Reps. Greg Walden (R-Ore.) and Suzanne Bonamici (D-Ore.) to find a way to increase the federal allotment for public defenders.

Andrew Malcolm, Walden's spokesman, agrees making up for a budget shortfall by hiring more expensive private attorneys "doesn't make any sense."

Malcolm says there's a $34 million increase in the $1 billion budget for the office in the current House majority bill for the federal judiciary.

But Wax is skeptical that a bill will pass this fall. Instead, he's holding out hope Congress will create a budgetary exception for public defenders in the sequestration cuts.

He says federal money for both public defenders and private attorneys will ultimately run out—and then cases will have to be dropped without going to trial.

“We can’t make a decision as a country,” Wax says, “that we can put people in prison without counsel.”