Cuts to Federal Public Defender system harm innocent defendants and waste money

Cuts to Federal Public Defender system harm innocent defendants and waste money

scales of justice 2The government has a constitutional obligation to provide the indigent people it prosecutes with counsel, under the Supreme Court’s decision in Gideon v. Wainwright (1963). But cuts to the federal public defender system both imperil compliance with that obligation, and will end up backfiring on taxpayers.  Most types of federal spending have mushroomed in recent years, including wasteful spending. But not spending on public defenders, which is actually needed.

As two federal judges observed in August,

the federal public defender system—a model of effective indigent defense for the past 40 years—is being decimated. . . 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.

A decrease of nearly 10% in the federal public defender budget for 2013 has already resulted in layoffs and up to 20 days of furloughs in many federal defender offices. In a number of states, federal courts have been forced to delay criminal cases because of public defender furloughs and layoffs. . . .

These steep budget cuts will not save us money in the long term. Delays in trials require many defendants to spend more time in costly pretrial detention facilities. But the flow of criminal prosecutions has not abated, so the unavailability of public defenders will simply force courts to engage private attorneys more frequently. Most federal judicial districts have a public defender office and, in those districts, it is more cost effective to have the office handle a majority of cases.

Reducing funding for federal defender budgets means that the remaining federal defenders have less time and fewer resources with which to investigate cases, conduct legal research and hire expert witnesses. This loss severely compromises their ability to represent their client at trial, destroying the adversarial process at the heart of our system. Without balanced, vigorously litigated cases, wrongful convictions may become more common, imprisoning the innocent and allowing the guilty to walk free.

A disturbing story appeared at The Huffington Post about the impact of cuts in funding for federal public defenders. As it noted:

The public defender system hasn’t just been stripped bare . . . its bones have been chiseled away as well. There has been a 9 percent reduction in the roughly $1 billion budget for federal public defender’s offices, while federal defenders in more than 20 states are planning to close offices. Careers have been ended and cases have been delayed. . .for all the belt-tightening being demanded of the nation’s public defenders, money is not actually being saved.

When federal public defenders aren’t able to take a case because of a conflict, or because their workload is too great, the job falls to private court-appointed attorneys known as Criminal Justice Act panel attorneys. Those lawyers are paid from the same pool of money as federal public defenders, but they cost much more and, according to some studies, are less effective.

. . . .

All told, observers expect that federal public defenders will end up having to lay off between one-third and one-half of their staffs. The AP estimated that 2,700 jobs will be lost over the next two years. Strictly in terms of the number of jobs lost, few if any professions have been hit harder by budget cuts.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at


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