More than 30 years ago, the Supreme Court held that most presumptively innocent people charged with federal crimes should not be locked in jail while awaiting trial. “Liberty is the norm,” Chief Justice William Rehnquist wrote, “and detention prior to trial … is the carefully limited exception.”
For people arrested and presumed innocent, days – even hours – of needless pretrial jailing can cause a cascade of life-ruining consequences. Pretrial jailing causes people to lose their jobs, homes and children, disproportionately affecting marginalized communities in the process.
Protecting liberty requires lawyers, and lawyers cost money. But now, Congress is on the verge of slashing the budget of our federal public defender system. The funding cuts federal defenders face would inflict disastrous consequences on families and communities. To avert catastrophe in our federal criminal system, Congress must correct course.
This month, the chair of the Senate Judiciary Committee and 22 other Democratic senators called on Congress to increase appropriations for federal defenders, warning that budget cuts threaten the constitutional right to counsel. The current appropriations marks for the federal public defender program are more than $100 million short of what they need to be to keep the system functioning.
Though Congress has known about this problem for months, there are now likely just a few weeks – if that – to fix this problem before the full Senate takes the critical step of voting on the federal defender program’s appropriation.
What we found studying federal courts across America
I can speak firsthand to the ruinous outcomes people face when they are forced to go into federal court without a lawyer by their side. Over the past several years, the Federal Criminal Justice Clinic at the University of Chicago has been shining a light on the federal pretrial detention crisis. Our findings document the shocking number of people denied public defenders at their first bail hearing, which virtually guarantees that they will be jailed rather than released home to their families.
Studying 94 federal courts across the United States, we discovered that more than a quarter of those courts fail to provide some or all arrestees with counsel at their first court hearing, a crucial stage of the case. More strikingly, every arrestee deprived of lawyers during this first court hearing was jailed, and 92% of these unrepresented individuals were people of color.
Despite being “presumed innocent” under the law, being deprived of the services of a federal public defender stripped these people of any chance to return to their families.
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We need federal public defenders on the front lines
If the federal public defender system is forced to endure the spending cuts Congress is on track to deliver, the problems we have identified will multiply exponentially. Spending cuts that could result in hundreds of federal defender layoffs will mean there are fewer lawyers available to represent people at their first court hearing.
This will be catastrophic for a system that already struggles to safeguard pretrial freedoms. Protecting the rights and freedoms of presumptively innocent people is a task that falls, overwhelmingly, on federal defenders, since more than 90% of people charged with federal crimes are too poor to afford a lawyer. An adversarial system simply cannot function without a full complement of skilled attorneys on both sides.
If Congress fails to fund federal defense, individuals, their families and their communities will pay the price. Our clinic’s research shows that depriving people in federal cases of lawyers leads to higher pretrial jailing rates, which cost taxpayers more than a billion dollars a year and make all of us less safe.
Moreover, spending even a few days in jail makes individuals more likely to take a plea deal, depriving them of procedural fairness.
I was innocent,but police seized my car and stalled for years. Their scheme has to stop.
Congress’ proposed appropriations would require the federal defender program to cut or furlough hundreds of positions and eliminate training and programming, exacerbating the federal pretrial detention crisis.
We need federal public defenders on the front lines. Across the country, defenders litigate hundreds of hearings a day to determine the essential question of whether someone presumed innocent of a crime will be locked in a jail cell while they await trial or instead return home to their family.
To offer quality representation to all indigent people – in these hearings, as in every other aspect of their practice – federal public defenders must be adequately funded. If the federal defender program is forced to slash its budget, it will be hamstrung in its ability to defend liberty and challenge the culture of detention that pervades the federal system. And if Congress fails to fund public defense, the American people will feel the consequences.
At this critical moment, it is essential that the House and Senate act now to correct course and fully fund the federal public defense system. Our collective interest in liberty demands nothing less.
Professor Alison Siegler is director of the Federal Criminal Justice Clinic at the University of Chicago Law School.
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