Constitution Check: Can constitutional rights be suspended for lack of funding?

Courtroom_United_States_CourthouseLyle Denniston looks at how the sequester could affect the ability of the accused to get justice in court if resources for public defenders are cut.

The statement at issue:

“On a good day, we’re stretched thin. Sequestration takes us well beyond the breaking point. You simply can’t sequester the Sixth Amendment.”

 –David E. Patton, a federal public defender, in a court hearing as he urged the judge to delay the major terrorism trial of Sulaiman Abu Ghaith, the son-in-law of the late terrorist leader Osaba bin Laden.  Patton was quoted in The New York Times on April 9.

We checked the Constitution, and…

Nothing in the Constitution specifically commands Congress to provide the money when a federal court has created or enforced rights that depend upon available funding. A denial of such funds, though, would raise questions about the constitutional independence of the judiciary. Perhaps to avoid that problem, it has long been understood that the money would be forthcoming. This year, though, there may be some doubt about that.

Because of what is technically called the “sequester,” the across-the-board cut in federal spending that took effect on March 1, many federal agencies and offices wound up short-changed, with less money than they had previously been authorized to spend. Congress did not withhold funds for any specific program, but the effect was the same as if it had, for every agency.

The federal public defender’s office in New York City is one of those agencies, and its chief, David Patton, took his complaint directly to U.S. District Judge Lewis A. Kaplan on Monday. The judge commented: “It’s extremely troublesome to contemplate the possibility of a case of this nature being delayed because of sequestration.”

Two constitutional rights are at stake in the federal government’s case against Sulaiman Abu Ghaith. Both are guaranteed by the Sixth Amendment: the right to a lawyer and the right to a speedy trial. The right to a lawyer has been interpreted by the Supreme Court to mean the right to have a free lawyer in a criminal case, if one cannot afford it personally. In a historic coincidence, the issue arose in Abu Ghaith’s case almost exactly 50 years after the Supreme Court guaranteed that right to impoverished individuals, in the case of Gideon v. Wainwright.

Although the suspect in this case is a foreign national, he does get the benefit of these rights because he is being tried in a regular federal court. There are some in Congress, of course, who oppose civilian trials in terrorism cases precisely because they do not want those suspects to have the full panoply of constitutional protections. But Congress has no power to shut down a federal prosecution once it has started; that would clearly breach the wall of constitutional separation.

However, because of the way sequester works, the lack of money to finance Abu Ghaith’s defense does not appear to be unconstitutional. Congress has not told Judge Kaplan to deny access to a defense lawyer in that or any other case, and, indeed, Congress has not targeted the federal defender’s office in New York specifically for a cut that no other agency has to withstand.

There is no doubt that sequester was within the power of Congress to enact. It is true that neither Congress nor President Obama thought the sequester would ever actually happen; they regarded it as a prod for everyone involved to get a budget deal done. But a failure on the budget triggered the automatic implementation of the sweeping cuts.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

That may be a dumb way to run a government, as many independent analysts have suggested, but no one has yet argued that it was unconstitutional. The Constitution, in general, does not protect governmental actors against their own missteps–unless those cross the line into forbidden action.

What happened in Judge Kaplan’s court on Monday is happening in other federal courts, as well. The New York Times story noted that five of six federal judges in Manhattan have received requests from public defenders “to be relieved from cases in the wake of the automatic cuts” due to the need to put lawyers on furlough.

Even if those requests are granted, the individuals facing prosecution before the Manhattan judges cannot be required to go to trial without lawyers. The trial judge in each case would then be obliged to assign the case to a non-government attorney–provided either that such a lawyer would be willing to work for no pay, or the judge could find money from somewhere to pay the fees. That alternative may wind up costing the government more than it would if public defenders, who work only for a salary, were available.

Federal courts work under specific budgets; judges do not have “discretionary funds” they can dip into to cover non-budgeted or unexpected costs. So the dilemma of how to deal with the right to a lawyer and the right to a speedy trial deepens for the judges and the lawyers alike.

Postponement is, of course, an option. But that may not be an attractive option at all. When the government is responsible for delays in a case, that counts against it in the calculus of whether an individual has been given a “speedy” trial. There is no hard-and-fast time limit on when a trial must actually begin, since court rulings have spoken in terms only of a “reasonable time.” The judge usually has a good deal of discretion in how to define that, case by case.

But the right to a speedy trial is not an empty right. At some point, if the judge is persuaded that delay has gone on long enough, the government at that point must start the trial, or else run the risk of having the charges dismissed altogether. In a high-profile case, such as the terrorism case in Judge Kaplan’s court, that is an outcome that federal prosecutors definitely want to avert.

Many stories are coming to light about the impact of the sequester. Some of those are more heartbreaking than the plight of an individual accused of plotting to kill Americans. But more is at stake in the integrity of the criminal justice system than the fate of one individual, including whether the government can live up to promises made by the Constitution.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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Constitution Check: Can constitutional rights be suspended for lack of funding?