Under the sequester, federal agencies were required to cut their budgets across the board. Of course when business travelers felt the inconvenience caused by cuts to the FAA the government quickly found a way around the sequester lest our elected representatives be blamed for the snarls at the airport.
Over the in the courthouse, the sequester has caused federal public defender offices to reduce their budgets. And, since criminal defendants in federal court don't have a particularly sympathetic lobby, no one has stuck their neck out to prevent the unintended consequences of the sequester.
In order to reduce their budgets, local federal defenders' offices have had to lay off staff. As a result of recommended caseloads this means that the federal defenders' offices can't handle as many cases. Someone has to step into the breach - and those someones are private attorneys taking on appointed cases.
Federal defenders' offices are set up to defend a large number of clients at any given time. They share staff. They share investigators. Hell, they even share cars when traveling to visit clients in federal detention centers. Private attorneys don't have the advantage of this shared overhead. A private attorney has to pay his receptionist or assistant. He has to pay his investigator. He doesn't have anyone to carpool with when traveling hours to visit a client. And he's billing the court for his time and his expenses - as is his investigator and any expert witnesses he may retain.
The plain fact of the matter is it costs the taxpayers more money for the courts to appoint private attorneys to handle federal criminal cases than it does to use the federal defenders' office. So the sequester - meant to rein in spending - is actually increasing the costs of providing representation to federal criminal defendants.
Of course we just can't let this practice continue. So, in order to reduce spending, a panel of federal judges decided to reduce the hourly rate paid to private attorneys appointed to represent federal criminal defendants from $125 an hour to $110 an hour. And the courts will have the ability to delay some payments of fees for up to four weeks to keep them off the current fiscal year's spreadsheet.
But that's not addressing the problem. That's just sweeping it under the rug and hoping everyone forgets about it. If the cost of these federal prosecutions is too high, then maybe we should take a nice long look at the types of cases that are being filed.
There is little reason to try a dope case in federal court, for instance. The last time I checked, every state had laws on their books prohibiting certain drugs. Sure, the severity of the offense may vary from state to state and some states have even had the temerity to legalize small amounts of marijuana. But the point remains that there are few drug cases that need to be tried in federal court.
The same goes for most assaults and murder cases. Those activities are outlawed by the states. Sure, there may be some jurisdictional issues when an offense takes place on federal property, but murder is murder and assault is assault. If a person is convicted of the crime, does it really matter whether he serves his time in a state penitentiary or a federal prison?
So my solution to reducing the cost of prosecuting federal criminal cases is to reduce the number of cases prosecuted. If the defendant can be charged in state court, let the state court take care of the matter. The role of the federal courts all along was to take over matters involving actors from across state lines when one state's courts might be friendlier to a in-state party than to an out-of-state party. The only federal crime outlined in the Constitution, after all, is treason.