Sequestration and the 6th Amendment Right to Counsel

Chief Justice Roberts is sounding the alarm over deep cuts to the public defender program.


Deep cuts to the public defender budget has Chief Justice Roberts and other senior judicial officials expressing concerns about 6th Amendment rights.

National Constitution Center (YahooNews), “Federal courts continue warnings about budget and the Sixth Amendment

Chief Justice John Roberts has repeated warnings he issued in 2012 about the lack of funding for the federal court system, which he helps to oversee. Those warnings came about three weeks after similar requests from two top officials at the Administrative Office of the U.S. Courts.

On December 5, 2013, Judges John D. Bates and Julia S. Gibbons wrote Congress about the dire need for more funds for a federal court system that was strained before mandated sequester cuts took effect after the 2013 budget battle in Congress.

“Sequestration cuts to the Defender Systems program threaten the ability of the Judiciary to provide court-appointed for persons accused of a federal crime,” said Gibbons and Bates, who said that federal defender programs were cut by 11 percent during the sequester period last year.

About 90 percent of people in federal criminal cases use court-appointed counsel.

The letter was issued just before a budget deal was reached in Congress to restore some funding to government agencies.

In the budget deal cut by Representative Paul Ryan and Senator Patty Murray, some money for the next two years will be coming back to discretionary programs run by federal agencies. But the amount of funds restored will be decided by appropriations committees in Congress in mid-January.

And that isn’t enough to satisfy Chief Justice Roberts, who spelled out his concerns in a 15-page report issued on New Year’s Eve.

Among the arguments made by the Chief Justice to Congress is the fact that most federal court spending is on programs mandated by law, and the federal justice system just doesn’t have many discretionary programs to cut. In fact, it will need to cut its budget by 3 percent to accommodate “must pay” programs- before funds are restored from the sequester.

“Those cuts would lead to the loss of an estimated additional 1,000 court staff. The first consequence would be greater delays in resolving civil and criminal cases,” Roberts said. “In the civil and bankruptcy venues, further consequences would include commercial uncertainty, lost opportunities, and unvindicated rights. In the criminal venues, those consequences pose a genuine threat to public safety.”

And the more basic threat is to the sanctity of the Sixth Amendment, Roberts said, if sequester cuts are restored.

“There are fewer public defenders available to vindicate the Constitution’s guarantee of counsel to indigent criminal defendants, which leads to postponed trials and delayed justice for the innocent and guilty alike,” he said.

The public defender system has greatly expanded in the past 50 years after the 1963 decision in Gideon v. Wainwright. The highly publicized case led the Supreme Court to conclude that the Constitution required state-provided legal counsel in criminal cases for defendants who are unable to afford to pay their own attorneys.


In an op-ed piece in The Wall Street Journal, jointly signed by conservative Paul Cassell and liberal Nancy Gernter, the former federal trial judges lamented the drastic impact of sequestration on budgets for public defender offices.

“[D]ue to the combination of general budget austerity and sequestration, the federal public defender system — a model of effective indigent defense for the past 40 years — is being decimated. As former federal judges from opposite ends of the ideological spectrum, we both understand that these shortsighted cuts threaten not only to cripple the federal defender system, but to disrupt the entire federal judiciary—without producing the promised cost savings,” they said.

U.S. attorney general Eric Holder also submitted his own op-ed piece to the Washington Post on the same topic.

“Despite the promise of the court’s ruling in Gideon, however, the U.S. indigent defense systems — which provide representation to those who cannot afford it — are in financial crisis, plagued by crushing caseloads and insufficient resources,” said Holder.

It’s by no means obvious that the federal public defender system is the only Constitutionally permissible way to ensure the Gideon threshold is met. After all, the vast majority of criminal cases take place in state and local courts—where subsequent cases have also applied the Gideon doctrine via the 14th Amendment and the incorporation doctrine—and most of them have inadequate resources to provide competent counsel. But, certainly, the federal model has long been the gold standard and dismantling it to save a few bucks would send a troubling message.

When I first studied Gideon in my undergraduate constitutional law classes,  in 1986, the ruling struck me as nonsensical. The Constitution guarantees all manner of rights but they’re all negative ones. That is, they’re prohibitions on government infringement of our liberties, not minimum conditions that government must provide. Thus, while I have a virtually unlimited right to start and publish a newspaper, I have no expectation that the taxpayer buy me a printing press. For that matter, while I have a right to maintain an arsenal of firearms in my home, I have to pay for them myself.

But the right to counsel is different. In our adversarial system of justice, training in the law is all but essential to navigate the system. An innocent defender trying to represent himself against a trained and experienced prosecutor, with all the resources of the state behind him, is at such an enormous disadvantage as to render the right to trial virtually meaningless.  And that’s even more true with the type of individual that makes up the overwhelming preponderance of our criminal defendants: the poor and under-educated. So, the right to counsel has to be a positive right. It’s not enough that the state not be permitted to deny criminal defendants representation; we must go further and actually provide counsel to those unable to afford it otherwise.

Alas, while this principle is now half a century old and taken as a given, it’s mostly enforced in the breach. We’re a society that criminalizes a lot of conduct and our pool of criminal defendants is vast. But our appetite for paying for judges, jails, and defense counsel is small. The consequence is that we routinely violate the spirit of the 6th Amendment’s rights to a speedy trial and counsel and the 8th Amendment’s prohibition against cruel and unusual punishment.

Given that the burden of these shortfalls is borne almost exclusively by a despised underclass, there’s little motivation to do anything about this state of affairs. And while Roberts, et. al. may feel passionate about this issue, I’d be gobsmacked if they started dismissing convictions and freeing convicted criminals on the basis that an underfunded pubic defender program constituted a violation of the 6th Amendment.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. C. Clavin says:

    Just keep shrinking that big ol’ evil Government.
    Everything will be better when it fits in the proverbial bath-tub.

  2. C. Clavin says:

    Public defenders…other aid to the poor…is what Paul Ryan says is;
    “a hammock that lulls able-bodied people to lives of dependency and complacency, that drains them of their will and their incentive to make the most of their lives.”
    Rand Paul? If you apply his other statements on the long-term unemployed I’m sure you will agree that we do a disservice to the poor when we provide them with a public defender.

    Combine this post with the one about the F-35. The poor had no voice in our system before Citizens United…less after. Defense Contractors? Big voice. Bigger after CU.

    Once before this country became highly inequitable . If you repeat history…then you are probably doomed to repeat more of that history than you would like.

  3. OzarkHillbilly says:

    We’re a society that criminalizes a lot of conduct and our pool of criminal defendants is vast. But our appetite for paying for judges, jails, and defense counsel is small.

    Ooooh, oooh, ooooh, ME ME ME ME ME ME, I KNOW I KNOW I KNOW!!!!!

    Let’s just privatize the judiciary, cause that’s working out so well for our prisons.

  4. Stonetools says:

    When Chief Justice “Corporate” Roberts, who thinks that voting rights are optional, concludes that the judicial system is in crisis due to sequestration , you know it’s a crisis.
    Hmmm, I can think of one frontline poster here who said, “Sequester? No problem” and poohed poohed the idea that it could prevent the government from carrying out its functions. Wonder what he thinks of the Chief Justice’s position.

  5. Woody says:

    We’re a society that criminalizes a lot of conduct and our pool of criminal defendants is vast

    Yes, but what’s actually prosecuted? And who is actually charged?

    What’s happening in the public defender program reflects the conservative attitude toward society: the nobles can afford connected experts when momentarily troubled by the law, whilst the peasant’s reliance on poorly paid/overworked public defenders is an indictment of their guilt. Hell, Gov. Pawlenty tried to make up for a budget shortfall by charging $25 for a public defender.

    The greatest con in history has to be how American aristocracy persuaded self-identified followers of Jesus of Nazareth – he of the Beatitudes/Sermon on the Mount – to actively hate the poor.

  6. PD Shaw says:

    Having spent some time in federal courthouses, some of which are nearly abandoned at times; my advise to Justice Roberts is cut the number of security guards in half across the board.

  7. JWH says:

    Pardon me for bringing another issue in … but I wonder what it would mean for the federal defender program if we cancelled one F-315 (unit cost: $172.7 million) and channeled the money to providing defense counsel for the poor and indigent.

  8. rudderpedals says:

    @PD Shaw: I have very mixed feelings about cutting back security. The courthouse I frequent tries a terrorist every 6-18 months and the truck barriers go up and I’m just a little nervous going in and out of there until I’m away from the entrance. It’s in a rough neighborhood too which a good chunk of my client base who weren’t city-born are frightened to visit by the mostly harmless panhandlers. The Marshals presence make them and me feel a it better, particularly the ones posted around the perimeter bringing a presence to the street.

  9. rudderpedals says:

    @JWH: It’d help a _lot_ but I think the talk of trading X for Y is a mug’s game: We can afford both.

  10. Pinky says:


    The greatest con in history has to be how American aristocracy persuaded self-identified followers of Jesus of Nazareth – he of the Beatitudes/Sermon on the Mount – to actively hate the poor.

    It’d be more accurate to say that a sizable percentage of the wealthy vote similarly to a sizable percentage of Christians who are susupicious of programs to help the poor. It’s far less sensational, and it doesn’t require a cabal to do the conning.

    The fact is that the Republican Party in the US is socially populist and economically elitist, and the Democratic Party in the US is socially elitist and economically populist. It creates tensions and odd commonalities. The corporate elite may vote the same as a poor white Christian, and the academic elite may vote the same as a poor black Christian, but they have different reasonings, and nobody’s controlling anyone. This is like the “What’s the Matter with Kansas” nonsense. People can vote according to what they perceive as their best interest, even if I really really disagree that it’s in their best interest. Frank’s frustration isn’t that other people are controlling the voters; it’s that Frank isn’t controlling them.

  11. HarvardLaw92 says:


    I agree. While current reality doesn’t involve me having to be in Marshall or Moynihan nearly as much as I used to be, the presence of the marshals makes me feel a great deal safer when I do have to go.

  12. al-Ameda says:


    The fact is that the Republican Party in the US is socially populist and economically elitist, and the Democratic Party in the US is socially elitist and economically populist.

    I’d say that the Republican Party, in terms of economics, are Calvinist-Darwinists (only the strong deserve to survive).

    I’m not sure how you define social populism, so I’m not sure how you end up with Republicans as social populists and Democrats as social elitists? What is a social elitist – one who does not or refuses to interact with those who are of a different class? By that definition most Americans are social elitists

  13. Pinky says:

    @al-Ameda: Take a step back and think about it. If you get this, you’ll be two steps ahead of the average political analyst, and I’ll be kinda impressed.

  14. Grewgills says:

    Social populists = God, Guns, and Gays

  15. An Interested Party says:

    The fact is that a “moderate” person who uses the pseudonym “Pinky” thinks that the Republican Party in the US is socially populist and economically elitist, and the Democratic Party in the US is socially elitist and economically populist.

    Happy to be of help…

  16. Pinky says:

    I’m not a moderate; I never claimed to be. What I aim for is to be mature enough to analyze things objectively. I’m not interested in home-town sportscasters who think their team is going to win / should have won every game. I try to call ’em like I see ’em. I’ve posted this theory about populism and elitism before. Usually there will be a couple of sports fans who will accept the parts they like and vehemently reject the parts that they consider to be insulting to their team. But there will be some thoughtful people who read it and get a good discussion going. This site has a couple of people who strike me as interesting thinkers.

  17. Jenos Idanian #13 says:

    Man, I take a week vacation from this place, and the commentariat gets even more dishonest than before.

    1) The sequester was Obama’s great idea. He proposed it and fought for it, so he gets the full credit.

    1A) This is not just the case when it benefits him, as in when his sycophants talk about how the deficit has been reduced — largely in part thanks to the very same sequester.

    2) Jesus did NOT tell his followers that they should help the poor by getting Caesar to spend more on them. God’s command is that we help the poor out of our own pockets — NOT by compelling others to do what we think is a good deed. God does NOT give out brownie points for good deeds done under compulsion, nor does He not reward those who farm out their good deeds. One does not demonstrate generosity by giving away other people’s money. God cares that we CHOOSE to do good.

  18. C. Clavin says:

    The fact is that the Republican Party in the US is socially populist and economically elitist, and the Democratic Party in the US is socially elitist and economically populist.

    Seriously? The party against gay-rights, women’s rights, immigration…the party that thinks wealthy white people are being discriminated against…is socially populist???
    That’s the dumbest thing I’ve read since Jenos went away.

  19. Jenos Idanian #13 says:

    @C. Clavin: That’s the dumbest thing I’ve read since Jenos went away.

    Oh, you missed me. But it takes someone as astonishingly, mouth-breathingly stupid as to post a comment about how I “went away” right below a comment I made.

    It’s sad, but yet somehow comforting that you really are as stupid and unobservant as you were a week ago.

  20. C. Clavin says:

    @Jenos Idanian #13:
    Still haven’t admitted how wrong you were about Bebghazi…have you, coward?

  21. Jenos Idanian #13 says:

    @C. Clavin: You’re right, Cliffy. Benghazi was a well-planned terrorist attack AND a spontaneous riot triggered by a YouTube video that should have never been made, because everyone knows that when you insult Islam, you get people killed. The Obama administration had NO way to know it might happen and could do NOTHING in response, so it’s fine that they did nothing. It’s vital for national security that the survivors from the attack be muzzled, and we know all this because the New York Times had a correspondent on the ground at the time — but didn’t mention it until over a year later.

    Did I miss any of the talking points?

  22. Jenos Idanian #13 says:

    Oh, and Cliffy, you’ve developed another “tell” — whenever you pronounce something “dumb,” it means you don’t understand it.

    News flash, Cliffy: it usually means just the opposite. What you mean is, you’re too dumb to understand it. And you abuse “dumbest” like Keef Olbermann used to abuse “worst.”

  23. Jenos Idanian #13 says:

    @C. Clavin: Oh, I’m sorry, you were talking about BEBghazi, not BENghazi. What happened in Bebghazi, anyway?