Page 103 - Ad Hoc Report June 2018
P. 103

 Unique Posture of Federal Defender Offices Amplified the Effect of Sequestration
Late in fiscal year 2012, Congress authorized defenders to increase staffing in response to rapidly-rising caseloads. When Congress authorizes new positions, especially when it does so late in a fiscal year, it is the practice to fund only part of
a year’s cost for the position to account for the time it takes to hire new staff. The following year a higher level of funding is needed to maintain the same positions for a full year. As a result, Congress’s action in FY 2013 in funding the government through a Continuing Resolution at the prior year’s appropriations levels resulted
in an immediate and severe shortfall in the Defender Services Account: all the new positions Congress approved in the prior year were only partially funded in FY 2013. As a consequence, in February of 2013, before sequestration went into effect, DSO announced to federal defender offices that their budgets for the year would be cut by roughly five percent, a cut that would have to be absorbed in the remaining eight months of the year. Two months later, sequestration would impose a further five percent cut on defender budgets to be absorbed in the remaining six months of the year. The effect of the cuts was doubled by this timing. Defenders had only half a year to manage a ten percent cut to full year funding.
Federal defender organizations had little ability to manage this shortfall. More than 90 percent of federal defender budgets are dedicated to personnel and space. The remaining funds go to necessary expenses like case-related travel and necessary expert services, categories not amenable to reduction without affecting the quality of representation.221 Prior to the 2015 Work Measurement Study conducted by the AO, DSO funded federal defender offices at amounts needed for authorized staff, and the number of authorized staff was set based on actual need. In contrast to other judi- ciary “programs” subject to staffing formulas and funded at certain levels not neces- sarily related to actual staff on board, defender offices did not maintain funded but vacant positions that could provide a “cushion” during a fiscal emergency.
JCUS Committee Actions During Sequestration
Witnesses told the Committee that the manner by which the judiciary handled the budget during sequestration was not only devastating to the CJA program but also changed the way they regarded placement of the CJA Program within the judi- cial branch. Indeed, the opening of the National Association of Criminal Defense Lawyers (“NACDL”) 2015 report on federal public defense explains that it was in light of the sequester that their task force to study the federal defense system was commissioned: “If a shining light in the country’s indigent defense system was itself so vulnerable to shifting political winds, was there something fundamentally
221 TestimonyfromDSOreceivedbytheCommittee,meetingattheAOJune2016.
No recommendation presented herein represents
the policy of the Judicial Conference of the United 2 0 1 7 R E P O R T O F T H E A D H O C C O M M I T T E E T O R E V I E W T H E C R I M I N A L J U S T I C E A C T 59
 States unless approved by the Conference itself.

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