Morning Lecture guest column: Mass incarceration, American exceptionalism — and the federal public defender

Guest column by Judge Nancy Gertner. Gertner will give Friday’s Morning Lecture. Check out the Morning Lecture preview.

Today, I will be speaking on “Mass Incarceration and American Exceptionalism.” I will address the enormity of our “imprisonment problem,” our love affair with incarceration, how we got there, and how inadequate our criminal justice system has been in addressing it. Recent developments have made the latter point all the more clear. We have a much-vaunted adversary system — but one of the important adversaries, the federal public defender, is about to enter the ring underfunded, understaffed and demoralized, all because of the “sequester.” Its opponent — the United States Attorneys’ office — has emerged unscathed. Indeed, in Boston, and I suspect other jurisdictions, the United States Attorneys’ office is hiring new assistants.

Why does this matter? More than 10 years ago, my husband and I were privileged to be part of a delegation going to Turkey. The delegation consisted of two judges (I was one; Judge Ginger Berrigan, the other), a prosecutor (John Keker who had prosecuted Oliver North), a criminal defense lawyer (Larry Hammond) and a civil rights lawyer (my husband, John Reinstein, who was then the legal director the American Civil Liberties Union of Massachusetts.) We were asked to convene meetings in several cities with our counterparts, and present panels on various topics. The topics we were addressing, the substantive content of the programs, were less important that the fact of the meeting. Turkey, a civil code country, did not use the adversary system. It did not regard defense lawyers and prosecutors as equals, zealously representing their clients. Rather, the prosecutor sat at the front the courtroom, on a level just below the judge, a physical position that matched his near-judge status. The defense lawyer was in the audience, effectively with no greater status than the defendant he or she was representing. Worse yet, many defense lawyers had been prosecuted because of their representation of Kurdish dissidents. Zealous representation of Kurdish dissidents bought the defender a police interrogation, surveillance or worse.

The idea of our visit is that we would show by our presence, our interaction, our stories, the fact that prosecutors and defense lawyers in our country meaningfully had full “equality of arms.” Both sides were to represent their clients to as zealously as they were able, and to have the resources to do so. And, with respect to indigent defense, we touted our criminal defense system as the “gold standard,” a model for other countries.

That may be ending soon. If the cuts occasioned by the sequester come to pass I fear that the federal defender system will have dramatically lost that equality of arms. A nearly 10 percent cut 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. Combined with a possible additional 14 percent cut in 2014, some federal defenders may have to begin laying off between a third and half of their staff before September 2013. At the same time, just last week, a Senate subcommittee approved funding to the Department of Justice for 2014 that would allow federal prosecutors “to prosecute approximately 300 additional criminal cases in Federal courts.” In a number of states, federal courts have been forced to delay criminal cases because of public defender furloughs and layoffs.

Reducing funding and eliminating federal defender positions means that the remaining federal defenders will have less time and fewer resources to investigate cases and ably represent their clients. If the ability of the defenders to represent their clients is compromised, so is the adversarial process. And it is not without costs. These losses are taking place just at a time when we have become more aware of wrongful convictions, and our extraordinary problem of over-incarceration. Mistakes and excesses — inevitable in an underfunded system — will create even more expenses down the line, through appeals, unlawful detention proceedings, and retrials. As Supreme Court Justice Stephen Breyer has noted, it is “cheaper to have a decent lawyer in the first place.”

Replacing public defenders with private counsel paid for with public funds is not remotely cost effective. Nor are they always equal to the quality of a professional defender. Studies in my state, for example, suggest that it cost less for public defenders with expertise, with pooled resources, to represent a defendant than private counsel on the public till.

Of course, none of this affects the Madoffs of the world, or the Enron executives, who can pay for the “gold standard” of defense. That’s precisely the point. Our constitution guarantees competent effective counsel for all defendants, regardless of their ability to pay. Austerity and budget cuts are one thing; fairness to those facing a profound loss of liberty is quite another.

Judge Nancy Gertner retired in September 2011 from the United States District Court of Massachusetts and is now professor of practice at Harvard Law School