Some Public Defenders Warn: 'We Have Nothing Left To Cut'

Steven Nolder joined the federal public defender's office when it opened in Columbus, Ohio, nearly 18 years ago. Nolder handled his share of noteworthy cases, including the first federal death penalty trial in the district and the indictment of a former NFL quarterback embroiled in a ticket fraud scheme.

Lately, Nolder says, his professional world has turned upside down.

"In the last four or five months, the game has changed, and no longer is there an interest in quality representation by, seemingly, budget committees in Congress, but instead it seems that money's going to rule the day," he says.

Nolder is being forced to slash his budget under the federal spending cuts known as sequestration. But with little to trim other than salaries and benefits, Nolder realized he would have to make some tough decisions.

"The people that came here to work for me came from outside the district, moved their families here, are not necessarily licensed to practice law in the state of Ohio — they don't have to be to practice solely in federal court," he says. "And it seemed to me wholly unfair to target those people, the last in, to be the first out, knowing they had no opportunities in this legal community."

So Nolder did something that no one expected: He laid himself off, effective in June, to hang up his shingle as a private defense attorney.

"It's very emotional. It's been an emotional 45 days to come to this point," he says, his voice breaking.

Around the country, other public defenders are reaching the breaking point. In New York, public defenders told a judge this week they need to delay the trial of Osama bin Laden's son-in-law because they're under orders to take about five weeks' worth of furloughs.

And in Washington, D.C., federal public defender A.J. Kramer says things are worse than he's ever seen in 33 years in the public defense system.

"We have nothing left to cut," Kramer says. "We can't not pay the rent, and ... everything else is personnel. We can't send a computer to court."

An 'Ethical Dilemma'

Kramer says every decision about a case is coming under the microscope.

"A lawyer ... might decide that they ordinarily in the past would have had an expert work on some aspect of a case and now they're thinking, 'Is that going to cost me a furlough day if I hire this expert — and [cost] everybody else in the office a furlough day?' So it really becomes a terrible ethical dilemma," he says.

It's not just defense lawyers who are howling. Supreme Court Justice Stephen Breyer told the House Appropriations Committee at a hearing in March that he's worried, too.

"At this moment, I would say the public defenders are below the level that would be minimum," Breyer said. "And it does really seem to me that there is a serious problem in terms of crime, in terms of justice, in terms of adding costs to the system, if you can't protect the defenders."

'Not Luxury Services'

Just last month, the Justice Department celebrated the 50th anniversary of Gideon v. Wainwright. That Supreme Court ruling gave poor people facing criminal charges the right to a lawyer, even if they couldn't afford one.

The obligation doesn't go away, even if longtime public defenders — like Nolder in Columbus, Ohio — do.

"These are not luxury services that we're providing," Nolder says. "These are constitutionally mandated services, and because they're mandated, someone has to do it. We either do it, or the panel does it."

"The panel" is a roster of private defense lawyers appointed by the court to represent poor defendants. Those private lawyers often cost more than the public defenders do, but without the same expertise, Nolder says.

"So what Congress is forcing the American public to do is buy the $600 hammer," he says. "Pay more for less. It doesn't make sense."

Michael Nachmanoff, the federal public defender in the Eastern District of Virginia, says the whole system — once held out as the gold standard — is on the verge of being dismantled. He says he hopes lawmakers will reverse some of the cuts, just as they did with meat inspectors.

"I think that indigent defense is every bit as important as the food that we eat," Nachmanoff says. "For our clients, it's a matter of their liberty, [and] sometimes, their life."

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