Legal Community Frets Over Fiscal Cliff

By now everybody has probably heard about the “fiscal cliff” our nation faces.  The threat is real and the consequences far-reaching and potentially devastating.

The situation has become highly publicized and politicized; however, one of the underreported aspects of the fiscal cliff is the effect it would have on the federal court system and basic access to justice.  Although the judiciary is generally seen as an apolitical branch of government, it is not immune to the effects of the fiscal cliff.

The 2011 Budget Control Act[1] is set to go into effect sometime in 2013, when the federal government reaches its debt limit.  The Act mandates a devastating 8.2% cost reduction in the federal judiciary.  What may occur as a result?[2]

  • There would be a loss of 5,400 more staff positions, in addition to the 1,100 that have already been cut.
  • A mandatory  four-week furlough for all personnel.
  • Civil  jury trials would be suspended for the fiscal year’s final six weeks, because of a lack of funds to pay jurors.
  • Lawyers appointed to represent indigent defendants would have payments suspended for the same time period.
  • May force weekly shutdowns of federal courthouses
  • Potential delays in criminal matters
  • Costly extensions of pretrial detention
  • Supervision of convicted felons on post-incarceration release and criminal defendants out on bond will be reduced, putting the public at greater risk

Despite the fact that many economists have estimated that the direct and indirect costs of these delays outweighs any potential savings that will result from these cuts[3], this may be what our federal judiciary is forced to enact. State courts faced with such crises have already had to take such measures[4].

While most people concur that our government must limit spending to a level more closely aligned with revenues, it’s difficult to see how anything positive can come of hindering citizens’ of a sacred, fundamental right – access to justice.  It is, after all, that very access to justice which distinguishes our nation from other nations.

Judicial independence and the notion of checks and balances has been a vital aspect to our nation’s democracy since its inception. Adequate funding is necessary to maintain that judicial independence and uphold our constitutional rights.  The fiscal cliff we are facing threatens this very sacred principle


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