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Getting the Justice Systems We Deserve

The sequester is taking a considerable toll on the courts, the one branch of government not responsible for it. Jurists need to speak out about what the sequester means to the rule of law and to the ability of the courts to dispense justice.

Published: May 6, 2013

A remarkable thing happened on Wednesday in Nashville, Tennessee. A federal trial judge there, Todd J. Campbell, issued two orders in a criminal case that candidly confronted the “sequester’s” impact on the rule of law. “The Act was passed by the Legislative and Executive branches,” Judge Campbell wrote in one of the orders, “but it significantly negatively impacts the Judicial branch and the administration of criminal justice.”

At issue in the case of United States v. Lee was whether the courts could force a criminal defendant to go to trial while his federal public defender was being furloughed as a result of the budget cuts required under the sequester. “It would be potentially unfair and arguably contrary to the spirit of the right to counsel (6th Amendment) and Due Process (5th Amendment),” Judge Campbell wrote, to “compel Defendant Lee to go to trial under these circumstances.” In the other order, Judge Campbell found a creative way to ensure the defendant would be able to obtain a transcript of his first trial — which resulted in a hung jury — to prepare for his second trial. The sequester cuts down to that level of the legal system.

Judge Campbell is not alone in lamenting the sequester’s affect upon the lone branch of government not responsible for it. All over the country, in federal and state courts, judges are being forced to confront the consequences of the sequester mess created by the other two branches of government. In New York last month, another federal judge was told by defense attorneys that the terror trial of Osama bin Laden’s son-in-law might have to be delayed by the sequester. And even the nascent Boston bombing case, the coming trial of Dzhokhar Tsarnaev, may be delayed because of sequester cuts upon the public defender’s office in Massachusetts.

When Congress realized their own travel schedules were being delayed by the sequester’s impact upon the Federation Aviation Administration (FAA), they acted last week with great speed.

Now they are on notice that precious trial rights are being curtailed and what have they done? Nothing. Part of the problem is political. There is ideological opposition to paying for the implementation of even those procedural rights recognized by the United States Supreme Court. But part of the problem is deeper than that. The sad truth is that millions of Americans fundamentally misunderstand — or are simply ignorant of — the reasons why courts are underfunded and why such underfunding causes great disruption to (and injustice in) the nation’s justice systems.

Last November, the folks at the National Center for State Courts and Justice at Stake issued a report titled “Funding Justice—Strategies and Messages for Restoring Court Funding” and its conclusions were as disheartening as they were stark. From the report:

Most voters blame backlogs on excessive lawsuits and legal maneuvering, not funding cuts. They appreciate the unique role of courts, but give higher priority to other government services. Voters are unaware of the effects of court budget cuts on ordinary people… Most Americans are simply not motivated by short-term appeals for court funding.

While voters have more confidence in the courts than other branches of government, the judiciary has been hurt by rising public cynicism… Moreover, courts have no natural public constituency. Many voters believe government should spend more on schools, roads and public safety. Few believe the courts need more money… “I do believe that you have an issue with your court budget,” said a focus group participant in Virginia. “However, I’m taxed a lot already.”

To some extent this is apples and oranges. Judge Campbell is complaining about the sequester’s impact upon federal courts. And the NCSC and Justice at Stake focused on the problem’s impact on state court budgets. But both problems are made worse by the inaccurate perceptions people have about the nature of our judicial system and their role in it. In some cases, these perceptions are fueled by partisan politics — the phrase “excessive lawsuits” above, for example, comes straight out of the playbook of the so-called “tort reform” lobby. But criminal trials like the one Judge Campbell is dealing with in Tennessee aren’t “excessive.” Nor are the tens of thousands of domestic relations cases that are routinely delayed in state courts around the country.

I wish I had a good solution to this problem. People can see roads and bridges. They can go visit their local school. But it is much harder to see and hear and touch and sense the public investment we all make to our justice system — harder, that is, unless you are one of the millions of people in America whose lives are touched daily by that system. These people — the victims of cuts to court funding because their courthouse is closed, or their lawyer is furloughed, or their judge is understaffed and overworked — are a “natural public constituency,” to use the phrasing of the “Funding Justice” report. The problem is that few politicians are far-sighted enough to fight for the right of this constituency.

Which is why, in the absence of a meaningful political debate about the sequester’s toll on the courts, I applaud judges like Judge Campbell in Tennessee, jurists who have the courage to speak out. Within the confines of their judicial roles of course, these jurists speak about what the sequester means to the rule of law and to the ability of the courts to dispense justice. I hope that more judges speak out this way in the days and weeks to come — from the bench, from the courthouse steps, wherever — and that the Chief Justice of the United States himself, John G. Roberts, Jr., does not wait until next January, and his annual “state-of-the-judiciary” address, to sound the alarm. Every day that citizens must do without in their justice system is a day the sequester is creating injustices for us all.