Page 110 - Ad Hoc Report June 2018
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amend the drug sentencing guidelines. Often referred to as “drugs minus two,” this amendment was also retroactive, requiring that closed cases be reviewed and motions filed to give defendants the benefit of the new sentencing guidelines.246 A defender told the Committee the work formula “is so inflexible. It does not rec- ognize that we have to react to what other people do in the system. [Because of] drugs minus two, we have 1400 cases in our office to review and most of those will get motions filed.”247 Despite the need, the federal defender office was unable to hire additional staff to assist with that case review. One long-time defender told the Committee, “I really didn’t see it ultimately as being a long-term benefit to us. It may have temporarily saved us because it showed that we do work more than they thought we were but all it did was measure what we’ve been doing, not what we should be doing.”248 The defender lamented that the staffing formula didn’t include any flexibility to “anticipate the changes and new challenges that would come to us that in the past we’ve been able to adjust to.”249
Inability to Accurately Quantify Representational Tasks
Additionally, some offices fared poorly in work measurement and will lose staff and positions not because they are overstaffed, but because the formula does not take into account all the work the defenders do in the course of serving their clients. This work includes drug courts, re-entry courts, and veterans’ courts. “That kind of work doesn’t really count into our staffing formula, and it raises some very difficult ethical issues sometimes . . . I think as we start to think out
of the box in terms of how the criminal justice system operates, I think we also have to think outside of the box in terms of how we staff and fund it.”250 One fed- eral defender who, as a result of work measurement, was directed to lay off nine of her staff members251 told the Committee:
These programs are in our hearts, this [is] what our clients need, this is what we should be doing, this is making our communities better, but the reality of it is that if every lawyer that I assign to go work on mental health court, or to go work with the veterans, or to go work with our tribal communities is getting less than a misdemeanor’s case worth of credit. We cannot continue to sustain our involvement in these pro- grams, and to me that would be a tragic loss and a complete inability to evolve what it is we do and why we do it. The science says we should be
246 Formoreinformation,pleasesee process/materials-on-2014-drug-guidelines-amendment/20140724_FAQ.pdf.
247 ElizabethFord,Exec.Dir.,CDO,E.D.Tenn.,PublicHearing—Birmingham,Ala.,Panel6,Tr.,at33. 248 HenryMartin,FPD,M.D.Tenn.,PublicHearing—Birmingham,Ala.,Panel6,Tr.,at12.
249 Id.
250 MiriamConrad,FPD,D.Mass.&D.N.H.&D.R.I.,PublicHearing—Philadelphia,Pa.,Panel3,Tr.,at34. 251 KathyNester,FPD,D.Utah,PublicHearing—Portland,Or.,Panel6,Tr.,at36.
No recommendation presented herein represents 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 the policy of the Judicial Conference of the United States unless approved by the Conference itself.

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