The Pay-to-Play Gavel: Why the DOJ is Killing Public Defense

So a man sat in an Oregon jail for months.

He wasn't waiting for like a trial date or a sentencing hearing.

He was waiting for a name, specifically the name of a lawyer.

In case 623CV-01361, as boring as that is, a federal judge finally had to step in because the state of Oregon simply ran out of public defenders.

They just stopped appearing like a server timing out because the bandwidth had been throttled to zero.

It's been 63 years since justice Hugo Black wrote in Gideon versus Wainwright that lawyers in criminal courts are necessities.

They're not luxuries.

But if you look at the fiscal year, 2024 financial services and general government bill, the math tells a completely different story.

While the national district attorneys association spent $1,120,000 lobbying last year to keep the machinery of

prosecution hummed and lubricated.

The federal public defense system was staring down a $106 million budget shortfall.

This isn't a glitch.

When Jeff Sessions shuttered the Office for Access to Justice in 2017, he wasn't just cutting costs.

He was deleting the only department in the Department of Justice whose job it was to ensure the Sixth Amendment actually functioned for someone with zero dollars in their bank

account.

We like to pretend the courtroom is a neutral arena, but it's actually a subscription service.

And if you can't afford the premium tier, the system is designed to let you rot in the queue.

Welcome back to The Overlap, I am Joshua.

And I'm Will.

We're coming to you from the crawl space where we spend our time looking at the structural rot beneath the floorboards of the American experiment.

Usually we're talking about how the private sector extracts your data or your labor, but today we're gonna talk about how the government extracts your liberty by simply refusing

to fund the people who defend it.

To show you the ultimate irony, we have this high-minded philosophical commitment to the adversarial system.

We tell ourselves that the truth emerges from the clash of two equal sides.

But you can't have a clash if one side is a heavyweight champion funded by billions in grants and the other is a single, overextended public defender with 60 active cases and a

laptop from 2012.

That's all too common.

But it's not just the hardware, right?

Like it's not just the fact that they're still using Windows 98.

It's kind of the deliberate under-provisioning of resources.

In 1964, LBJ signed the Criminal Justice Act, which was supposed to solve this.

He gave it a $1 million budget to start with.

But then you fast forward to 1994, and Joe Biden and Bill Clinton are pushing through a 30.2

billion dollar crime bill.

They built prisons.

They hired police officers.

They gave the system more users than it could ever really handle, but they never actually scaled the defense infrastructure to match it.

And that's really the source of our disagreement on this because I look at what Merrick Garland and Rachel Rossi did in October 2023 with executive order of 14-0-29.

They reestablished the office for access to justice with a $10 million budget.

That is a functional pivot.

It's an institutional realization that when the public defense system collapses, the entire legitimacy of the judiciary goes with it.

We're seeing a move toward the HURL hiring model.

We'll talk about all these terms going up because that may sound really foreign to most of you.

But the Hurl-Haring model is where the state finally takes responsibility for the mess it made in the counties.

Yeah, I mean, I think I think ten million dollars is kind of a rounding error.

Right.

um When you're looking at a hundred million dollar shortfall annually, it's kind of the price of like a mid-sized cloud migration for a logistics company.

But meanwhile, the big looming fraternal order of police, they spent two hundred and twenty thousand dollars last year on lobbying for more JAG money.

Those grants you were talking about earlier.

So you think.

A few memos from Rachel Rossi are going to fix a system that financially incentivizes people to produce guilty pleas.

So the system doesn't really want an adversarial process.

It wants a high throughput pipeline.

And a lot of times we hear that as, it's a plea system, right?

It's a bargaining system.

Right, and you see it as just a memo.

I don't think it's just a memo.

I think it's actually a legal framework.

You know, if we don't have these offices, we don't even have a mechanism to report the failure.

So what you see is a low bandwidth pipe I see as a structural pillar that we've allowed to erode, but one that we can still reinforce with the right legislative pressure.

You always want to fix the pillar while the roof is hitting the floor.

and you'd rather tear the whole house down and hope it rains less tomorrow.

But look, I think we both agree on that right now.

Right now where we stand is the Sixth Amendment is currently a terms and conditions page that no one is reading and the DOJ is trying to click through.

Oh, absolutely.

It's the EULA, you know, like that everybody just scrolls and agrees to.

But let's look at the actual cost of this free council.

OK, so let's talk about the free part of the Sixth Amendment, because that's where the architecture that I'm talking about in my sort of viewpoint actually fails.

So in March 1963, we get the Gideon V.

Wainwright.

You've got Clarence Earl Gideon, a guy with an eighth grade education.

who was reportedly seen leaving a pool room, a pool hall in Panama City, Florida.

Not something you want to be doing on a weekend in general.

Panama City sucks.

with some, you know, had change in his pockets and a bottle of wine.

I mean, he's having a good night.

It's a weekend.

He's charged with breaking and entering with intent to commit a misdemeanor.

So he asks for a lawyer because he doesn't have any money except for the change in his pocket.

Of course, the judge says no.

because Florida law at the time only provided legal counsel in capital cases, basically saying unless the state was trying to kill you, they're not gonna help you defend

yourself.

Right.

And shout out to our friends from Panama City who may be listening to this.

We don't think you're worse than anywhere else in Florida for the record.

But here we have, and getting you in right, have Hugo Black writing for the Supreme Court in a case that's now recorded in the US recorder or the US recorder for Supreme Court

cases.

372 US 335, if our nerds out there are looking for the summary, makes the sweeping, beautiful philosophical claim.

Justice Black says that in our adversary system of criminal justice, any person hailed into court who is too poor to hire a lawyer cannot, cannot be assured a fair trial unless

counsel is provided for him or her.

It was a foundational moment for the equal justice under law ideal.

It wasn't just about Gideon, it was about the integrity of the courtroom as a space where the state's power is checked by a peer.

Right, so that's like the clean, pretty, you know, nice display version.

And honestly, I agree with you that it looks great on the landing page, right?

But if you look at the backend implementation, one year later, August 1964, LBJ signs the Criminal Justice Act, Public Law 88455.

That's when he authorized a million dollars for the entire country.

to kickstart the representation of indigent defendants in federal courts.

A million dollars, like in 1964.

That was already a joke for a nationwide rollout.

At the time, we're looking at something like 300 million people.

We're talking about building a literal infrastructure of defense from nothing, and LBJ throws like a million dollars at it while also at the same time ramping up the budgets of

the departments that are doing the arresting and doing the imprisonment.

But you have to acknowledge that the intent of the Criminal Justice Act, before the act, if you were in federal court, you were poor, the judge just like drafted a local lawyer.

He just called up Billy Bob.

And sometimes he did it for free, sometimes for, you know, pittance.

But the Criminal Justice Act was the first time the federal government said, we have a line item for the defense.

It created the federal public defender organizations.

It was an institutional recognition that the state has a financial obligation to the person it's prosecuting.

It wasn't just a suggestion anymore.

It was a mandate.

And a mandate without a load balancer is just a DDoS attack on the poor.

The system was never really meant to scale for the volume that they were planning.

While the Criminal Justice Act was trying to figure out how to pay a lawyer 20 bucks an hour, the infrastructure of the war on crime was being built with heavy duty concrete.

That's when we jump forward to 1994.

So that's the inflection point where the autopsy really begins under Bill Clinton and Joe Biden pushing through HR 3355, which is the Violent Crime Control and Law Enforcement Act

to the tune of 30.2 buh-buh-buh billion dollars.

And that $30.2 billion really changed the DNA of American life.

It wasn't just about more police on the street.

It was about the truth and sentencing grants.

It was about 9.7 billion specifically for prisons.

Almost a third of the bill, a third of the price tag is for prisons alone, which tells you where they assume everybody's going, right?

um It created a massive incentive for states to keep people behind bars for 85 % of their sentences.

Philosophically, we shifted from a corrective system to a containment system.

and we decided that the most efficient way to handle social friction was to build more cells.

Right.

And I mean, that's, that's kind of my, my, my viewpoint as well.

They allocated that $30 billion to, as fuel for this, this engine of crushing human beings.

But how much of, of HR 3355 went to actually making sure that the people who were being swept up into this $9.7 billion prison expansion actually had the defense guaranteed by,

by Hugo Black in 1963.

And I argued that that's effectively zero.

They spent billions on the supply side of the carceral state, know, police, prosecutors, prison guards, and left the sort of quality control side to the public defenders, kind of

a rot in the sun.

It's like building a high speed train, but refusing to hire anybody to make sure the tracks are actually bolted down into the ground and you're just accelerating the rate of

the craft.

Which brings us to the actual human cost of that imbalance.

So you look at the case of Leo Hurl Herring in New York.

This is not ancient history.

We're talking about 2010 here.

He was the lead plaintiff in a class action because the public defense in five New York counties was so underfunded it was functionally nonexistent.

That's five New York counties.

That's a very populous state where people can't get access to a public defender.

We're talking about lawyers meeting their clients for the first time five minutes before a plea hearing.

in a hallway?

That's not a defense, that's a processing center.

The Hurl-Haring versus State of New York settlement finally forced the state to take responsibility because the counties were bankrupt.

bankrupt because the federal government stopped caring about the access part of justice.

Fast forward a little bit further.

We say that this is really not ancient history, but 2010 compared to 2026.

This is like a world ago, but we're going to fast forward just a little bit more than that to 2013.

Of course, know, this is Barack Obama's in the White House.

It was a completely different time.

We had a much brighter future in our view view screens.

we hit the federal budget sequestration.

And look, these are dense terms.

We understand that, right?

If you're not a political nerd like we are and don't get into the processes of the federal government, these can sometimes be a little boring, but we hit federal budget

sequestration.

And the administrative office of the US courts had reported that a $52 million

budget deficit specifically for public defense.

You know what happened?

Federal defenders were furloughed.

I mean, we're seeing that right now with TSA, right?

Like, but this was like just the people who defend people from going to prison, but they had to stop taking cases while the Department of Justice prosecution budget didn't see the

same level of existential threat.

So they were still processing these cases.

But the defenders were literally not allowed to show up for their clients.

So when you cut $52 million from a system that's already running uh at 110 % capacity, that's not trimming fat, like you're cutting brake lines and you're trimming off entire

muscles from the animal.

All right.

And by the way, if those TSA agents don't show up soon, we might need more public defenders.

But, uh, that's sequestration.

Right.

That sequestration was a disaster for the sixth amendment.

I created a backlog that we're still dealing with today, which is hard to imagine.

If your backlog traces back to 2013, like you're talking about a world away, um, this means a lot of people are rotting in prison waiting for public defender.

Uh, but you have to look at the attempt to fix it.

So Eric Holder during that same era was trying to push the smart on crime initiative.

They were trying to redirect the DOJ away from low-level mandatory minimums.

There was an internal push to recognize that the 1994 bill had overshot the mark.

They knew the institutional legitimacy was failing when you have the people like this previous guy in Oregon.

Yeah, so let's talk about previous guy.

His name is really hard to pronounce.

I am just going to use his last name, which is Nzana.

So this is the the 2023 system crash that I was talking about in kind of real time.

So in Oregon and the case number was 623 CVO 1361.

So Nzana is sitting in a jail cell for months, months, no lawyer.

Not a bad lawyer, not an overworked lawyer, no lawyer, because the state of Oregon literally ran out of people willing to work for the sub market rates the state provides.

A federal judge eventually had to order the release of him because the state was violating the most basic constitutional requirement.

We've reached the point where the hardware is so old it can't even boot windows anymore.

Yeah, I mean, it's a constitutional crisis and that word is overused now, but this was a constitutional crisis.

Even though we see them on a different order of magnitude now, this was one.

When a judge has to release a defendant, not because they're innocent, but because the state is too incompetent to provide a lawyer, the social contract is shredded.

But this is where the Office for Access to Justice comes in, right?

It was created to be the watchdog for this exact scenario.

And then in 2017, Jeff Sessions just turned it off.

which starting to become a familiar playbook.

He issued an internal memorandum and effectively closed the office.

He decided the federal government didn't need a department just dedicated to ensuring poor people had legal help.

Because why do they deserve any representation, right?

They're not funding our campaigns.

We it's funny because you say that the constitutional crisis is overused.

would argue that it's not overused that we're just seeing way too many of them now.

But no Jeff Sessions saw like a bug right and decided it was a feature.

And I say that a lot right.

Like that's not a bug it's a feature.

But so by closing the office for access to justice in 2017 he basically told the Department of Justice that

we are no longer really interested in the actual justice part of it because it's kind of expensive or it slowed down the department part.

He wanted this pipeline.

He wanted this court system to run fast, right?

So, and look, I mean, that's one of the things that we also, we also guarantee, right?

Is it, is it right to a speedy trial?

and so he was focusing more on the speedy than the trial.

And so

If you remove the office for access to justice, you remove the only federal office tracking how many nzanas are sitting in cells because they don't have an attorney.

You're deleting the log so you could pretend the server isn't on fire and that the whole house isn't burning.

It was like a zero dollar move on the budget that cost the system its remaining shred of credibility.

And that's really the tragedy of the institutional ebb and flow.

We spend 60 years trying to build a framework from Gideon to the Criminal Justice Act to the Office for Access to Justice.

And it can all be dismantled by a single memorandum from an attorney general who views the defense as an obstacle rather than a partner in the process.

But look at the rebound.

2023, Merrick Garland reestablishes the Office for Access to Justice under Executive Order 14029.

He brings in Rachel Rossi.

They give it a $10 million budget.

Is it enough?

No.

think the principle was that the DOJ cannot be like a department of prosecution.

And I think that they're sort of acknowledging the humanity there, right?

Like in saying, look, this is also a human problem.

I mean, and look, the $10 million budget, it's the budget for like a blockbuster movie, but not just the movie part, it's just the catering section, right?

Like that is like performative theater.

Look, and I like Merrick Garland.

specifically because our current president-in-chief does not and did not.

But Garland at the time was doing photo opportunities with Rachel Rossi.

At the time, the National District Attorneys Association is spending 1.12 million just on lobbying to keep things at the status quo.

And then you have the RICO organization, the Fraternal Order of Police, spending $220,000 to

protect their previous grant money to keep arresting and hurting people, which as the government Office of Accountability 23105 345 reports point out, have massive disparities

in how they're distributed, right?

The money always flows toward handcuffs and never toward the person trying to take them off.

Sure, I'll give you that the burn jag disparity is a legitimate institutional failure.

And the GAO report basically provide, sorry, prove that these federal grants are, which are supposed to be the entire support to the criminal justice system, are being treated as

a slush fund for police tech and tactical gear.

But the fact that we have a GAO report, the fact that Dick Durbin is on the Senate floor right now talking about a $106 million shortfall in the fiscal year 2024 financial

services bill,

means the institution is least acknowledging the hemorrhage.

You can't fix a shortfall if you don't name the dollar amount.

Yeah, but naming a dollar amount is basically T's and P's for bureaucrats, right?

That's thoughts and prayers.

And Dick Durbin, a terrible person, saying that we need $106 million to keep federal public defense from collapsing is really more of a confession of his failure than a

solution to sort of address it.

We're talking about like a $106 million gap in a country that spends $30 billion

30 years ago to make sure this many people were in the system to start with.

So we have the money to build this cage.

We just don't have the money to make sure the cage is legal.

That's a choice.

It's a specific, like documented historical choice to prioritize the efficiency, the speediness of your trial over the right of the individual.

Right, it's a choice, but it's one that's being contested.

I mean, this happened because lawyers and activists used the courts to force the state's hand.

They used the institution to fix the institution.

The settlement didn't just give money, it mandated caseload caps.

It said a human being can only handle so much tragedy before they stop being an effective advocate.

That is a structural change.

It's slow, it's painful, but it's a rewrite of the code.

You're talking about caseload caps, like they're some sort of a new tech.

If I told a computer engineer or a DevOps engineer, they had to manage 500 servers manually with no automation, they would probably throw me out the door.

But we expect a public defender to handle 500 felony cases and we call that justice.

So the silver title way we talked about, you know, a couple episodes ago.

those boomers in Congress, the ones like Biden, who wrote the 1994 bill.

And look, Biden did some fine things and we can acknowledge when he did fine things, but we have to also acknowledge when he didn't do good things.

They built a system that relies on the guilty plea to stay afloat.

And so if every indigent defendant actually got the Gideon treatment, a real well-funded high bandwidth defense, the whole

disherry would grind to a halt within a day or so.

Right, mean, look, you're right.

The system is predicated on the waiver of rights.

Nobody's arguing that.

If everyone exercised their Sixth Amendment right to a trial tomorrow, the courts would vanish under the paperwork.

But that's exactly why the institutional reform matters.

We have to make the processing so expensive and so difficult for the state that they're forced to stop overcharging and overpolicing.

I mean, look, it may be a 12-step program, but step one is admitting that you have a problem.

And we're at step one.

If we fund the defense to the level of the prosecution, though, the throughput slows down.

And that, philosophically speaking, is when justice actually has room to breathe.

Right, so I agree with you here on the, I actually like the 12-step analogy.

One of the things about the 12-step program, and I've not been through it, but I have read it for a giggle, and if you have a substance abuse issue, I'm not making fun of you, I'm

making fun of the weird organizations that insist upon bringing religion into what is essentially a medical problem.

if you stay on step one and never move through the 12 steps, you're not,

actually working the 12 step program.

You're, you're just admitting you have a problem, right?

So, and, and what we're seeing in our federal government is that we, just, we won't fund it.

That's kind of the point.

And that's kind of what Jeff Sessions did in 2017.

He looked at the office for access to justice and said, we don't need this.

So the $106 million shortfall Durbin is talking about for 2024 is not an accident.

It's a feature of the system that views the public defender as a bug in the code of mass incarceration.

And so we're sitting here, it's, it's, know, 2026, we're like 63 years after Clarence Gideon sat in a cell and wrote a petition to the Supreme court in pencil.

Who wouldn't let them have a pen, I guess.

and we're still arguing over whether or not statehood, the state should have to pay for

equal justice it prints on its walls.

No doubt, but Rachel Rossi is still there.

The Office for Access to Justice is open.

The $10 million is on the ledger.

It's a beachhead.

mean, look, don't get me wrong, the other side of the V is getting mowed down like D-Day, Normandy, or worse, but it's a beachhead.

I don't see it as theater.

I see it as the only tool we have left to present the total, to prevent the total enzonification, if you will, to butcher that word, of the country.

y'all, it really is.

It's just letters that we're not used to putting in our mouths.

Right, not enough fouls for me.

But you know, look, to prevent the whole system from falling apart, we have to use the names, the dates, and the dollar amounts to shame the institutions into living up to the

precedents they set for themselves in 1963.

Hugo Black's words have to mean more than the paper they're written on or the whole project fails.

So, you we did an episode kind of about this, that very concept that you just mentioned, right?

This whole idea of we have to kind of shame them into it.

And I don't think that they're speaking the same language anymore, right?

We're saying shame, shame, shame, shame.

And they're like, yeah, I don't speak shame.

I had the power to do it.

I did it.

I got rid of it.

And it's gone now.

I think that this project is failing, right?

It's failing at a cost of $106 million a year just in the federal system.

It's failing every time a judge in Oregon or Oklahoma has to let a man go because the state's just too cheap to follow the constitution.

And then, you know, you have a president who says, look at what they're doing.

Look at what they're doing in our courts.

They're letting criminals free.

And it's just like, yeah, because we can't give them what their rights, like we can't afford them their own rights.

Not to beat a dead horse.

We just have to stop pretending this is like a lack of resources.

It's a distribution of resources because we have $30 billion for the 94 bill.

We have $220,000 for the FOP to lobby year over year.

We just don't have the will to fund the defense because a strong defense is bad for the kind of throughput business.

I'll give you throughput.

It is the ultimate metric for a system that's lost its soul.

But I still believe that if we can win in the counties like they did with Herald Herring, we can force the federal hand.

The pressure has to come from the fact that the current model is literally unconstitutional.

Since when has unconstitutional actually stopped a budget committee or our president?

But look, I'll give you that.

Fair enough.

Let's look what happens when that budget committee actually meets the adversarial process head on.

So it's a joke.

It's a bad one.

We talk about the adversarial process like it's this kind of high functioning distribution system.

But in reality, the state has has already

attacked and overwhelmed the defense.

So if you look at fiscal year 2024 financial services and government, general government bill, Dick Durbin is up there sounding the alarm because the federal public defender

system is facing this $106 million shortfall, $106 million.

In the federal budget that measures success in trillions, we're watching the Sixth Amendment go into a tailspin for the price of a couple of fighter jet wings.

It's kind of a systemic failure by design, like every other system that Ronald Reagan has afforded us to kill.

See, that's where we disagree because I don't think it's by design.

I think it's by neglect.

And there is a difference.

When Merrick Garland reestablished the Office for Access to Justice in October 2023, he wasn't doing it for the optics.

He put Rachel Rossi in there with a $10 million budget.

Is it enough?

No.

Is it the $106 million that German is looking for?

Not even close.

But it is an institutional realization that the machine is breaking.

You can't have a functional legal system if the defense side of the ledger is permanently in the red.

Well, I'll say neglect is a very charitable word for an attorney.

When Bill Clinton and Biden pushed the violent crime control and law enforcement act in 94, they didn't neglect the funding.

They dropped $30 billion into the system.

But where to go?

It went to 100,000 new police officers and more prisons.

It didn't go to the Clarence Gideons of the world.

It went to the modern machine of incarceration.

When you pump $30 billion into the input side of the justice system, arrests and prosecutions, and then you provide a measly million dollars via the 64 Criminal Justice

Act as a starting point, that's not neglect.

You're over provisioning the attack and starving the firewall.

But you have to look at the shifts in how we define that firewall.

So you're going back to 1963, where, we said before, Hugo Black stated that any person held into court who is too poor to hire a lawyer cannot be assured a fair trial unless

counsel is provided for him.

He called it an obvious truth.

The problem is that for 60 years, we've treated that truth as an unfunded mandate.

But look at the Hurl-Haring settlement in New York.

Hurl-Haring and those other plaintiffs didn't just ask for money.

They forced the state to accept responsibility for the quality of the defense.

That case proved that the state can't just delegate its constitutional duties to the lowest bidding county and walk away.

And yet they still do.

The government accountability office report from May of 2023.

So the GAO looked at the the burn JAG funding, which is the primary provider of federal criminal justice money to the states for the audience.

And look, the difference is nauseating.

The money is used for, quote, law enforcement programs, which we all know is code for tanks and

Kevlar vests and more people being arrested.

The defense kind of gets the scraps.

Meanwhile, the National District Attorney's Association spent 1.12 million in lobbying in 2023 alone.

Again, the RICO organization, Fraternal Order of Police, put up another $220,000.

But who is actually lobbying for the poor?

Who is spending a million dollars to make sure that this adversarial process actually involves two sides and not just the one?

The who is the problem, but the how is changing.

Rachel Rossi's expansion of the Office for Access to Justice is literally designed to address those burn-jag disparities.

They're finally looking at the data you're citing.

The DOJ is actually internalizing the fact that when the defense system collapses, like we saw in Oregon, the whole system stops.

Nzany sat in a jail for months because Oregon simply didn't have a lawyer to give him.

A federal judge eventually had to order releases.

That is a constitutional crisis.

that even the most hardline law and order politician wants to avoid.

Because it results in people the state wants to keep locked up, walking free.

So I even the system has even failed on their side.

They want to hide this high throughput pipeline to the prisons, but they can't even get the people to the prisons because they can't get them to trial.

Yeah, I mean, it's kind of like the fail open state, right?

In my world, if the security system fails, right, you decide if it fails closed, which keeps everybody out, or it fails open, basically letting everyone in.

So the justice system is failing open because it's too cheap to pay for the guards at the gate.

But I just want to make sure that we're clear and we're honest about why, right?

So Jeff Sessions didn't close

the Office for Access to Justice in 2017 because it was inefficient.

He closed it because he didn't believe the state should be in the business of helping people defend themselves against the state.

So it was it was an ideological shutdown of a critical infrastructure component.

When you delete the access to justice, you're telling the public that the adversarial process is a luxury.

It's a service that you have to pay for.

not really a right.

Breaking news everybody, an official in the Trump administration doesn't believe in the Bill of Rights.

What do know?

mean, look, thankfully, thankfully, Sessions was an outlier in the history of that office.

The fact that it was reestablished and expanded with a $10 million appropriation proves that the institutional memory of the DOJ still values the Criminal Justice Act's intent.

Even if you look back at the 2013 sequestration under Barack Obama, where $52 million was slashed from public defense,

That wasn't a targeted strike, that was the meat acts of the federal budget.

The tragedy wasn't the intent, it was the impact.

It forced federal defenders to take unpaid leave while the U.S.

Attorney's offices, through different streams, kept humming along.

Every time I hear Barack Obama, I always think of the David Pakman soundboard where he has Trump going, Obama, Obama.

No, I mean, I agree.

think that the modern machine, The prosecution is a high availability, multi-region service with redundant power supplies.

And the public defender is like a weird, you know,

home server in a basement with a leaking pipe on the top of it and the air conditioner barely works.

When that 2013 sequestration hit, the US attorneys didn't have to furlough their staff at the same rate because they have access to asset forfeiture funds and other off book

revenue, which is an increasing problem in our country at both a local and a national level.

The public defenders are basically dependent upon the whims of Congress.

and that is being fed steak by the NDAA.

You can't tell me the justice system is kind of reforming from inside when the budget for the prosecution is functionally infinite and the defense has to beg Dick Durbin for 106

million just to keep the lights on in 2024.

You're not going to hear me arguing that it's a fair fight.

It's never been a fair fight, but I'm saying the fight is being recognized as essential to the system's own survival.

When Rachel Rossi goes to these counties and says, we're monitoring your burn jag spending, she's using the leverage of the federal government to fix the local Anzani

problem.

The $10 million for the office for access to justice isn't just for salaries, it's for policy pressure.

If the Fraternal Order of Police is spending $220,000 to lobby for more tech for police,

The Office for Access to Justice is the only entity inside the building saying, hold on, if you buy that surveillance tech, you have to fund the legal experts who can challenge

its validity in court.

they don't.

They don't actually do that.

And that's the point, right?

Like we've just reached the, right in the FAFO stage, we've reached the FA and we have to bear the brunt of the FO.

And that's kind of the point.

They take the tech and they leave the defense in 63 and look at the dollar amounts again, 30 billion in 94 for the tough on crime infrastructure.

And we're still paying interest on that debt.

not just financial interest, but social interest.

We built this machine that's optimized for one thing, the plea bargain, which we talked about earlier, being a plea system.

97 % of federal cases end in a plea.

And why do you think that is?

Because when you have a $106 million shortfall in the defense budget, you don't, different defense budget, because we have way more than that in the actual country defense budget,

you don't really have time for a trial, right?

Like you don't have time for an attorney.

I mean, you're,

a practicing attorney.

have, you know exactly how this works, right?

I mean, they, they literally five minutes, they decide on the plea and say, we'll do what we can to get, get it down as a, you know, the punishment as low as possible.

And they don't have time to investigate.

They really barely have time to read the name of the client, take the deal, or they'll send you to federal life, you know, the federal maximum, right?

The modern machine.

is just a plea bargain factory fueled by the poverty of the defense.

Right, I mean, that's the status quo for sure.

The plea bargaining rate is a symptom of the caseload crisis, I agree.

But again, look at the Herald-Haring case.

The settlement there didn't just throw money at the problem, it mandated caseload caps.

Now, just because they're not being followed doesn't mean they're not on the books as a requirement, right?

The case acknowledged that a lawyer with 400 felony files isn't a lawyer, they're a processor.

That's a legal victory based on the Sixth Amendment.

If we can move that from New York

from the New York State Settlement to a federal standard, which is exactly what the Office for Justice, Office for Access to Justice, I'm just gonna start calling it the OAJ, is

trying to do with their new initiatives.

Then we change the throughput you're so angry about.

We force the system to slow down to the speed of justice.

Don't you call me angry.

I think, mean, I think, I think slowing down is, a bug for them, not a feature, right?

Um, I think in, 2013, when that like 52 million was actually cut, the courts didn't actually slow down.

They just squeezed the defenders harder.

So I hear you, I hear you when you say mandates and caps, but in the real world where I'm going to try the whole name.

Nyaamidzun Nzana is sitting in a cell in Oregon without a name on his file.

The mandate is gone.

It's just a ghost.

The 2023 GAO report found that states aren't even tracking how much of the burn jag money goes to indigent defense because the amount is so negligible, it doesn't really trigger

reporting requirements.

We're talking about

Billions in federal flow and and the defense portion is a rounding error that the geo gao can't even find

which is why the GAO report 23105345 is so revolutionary.

For the first time, we have a federal watchdog pointing at the modern machine and saying, this is broken.

You use these dates and numbers to show the horror, but I use them to show the awakening.

Before 2023, we didn't even have the report.

Before 2021, you didn't have the OAJ.

We had the vacuum left by Jeff Sessions, but we're building on the data set required to make the internal reform possible.

You can't fix a system you haven't audited and we're finally auditing the inequality.

I have said this more times than I care to in the recent days looking at the news, but if you have an audit without an enforcement mechanism, it's just a list of complaints.

And we've had this list since 1963.

mean, Hugo Black told us what the obvious truth was.

LBJ gave us the Criminal Justice Act in 64 and a million dollars, and 60 years later, we're 106 million short.

while the NDAA spends over a million dollars a year to make sure their side stays fat and happy.

So if the modern machine wanted to be fixed, it would have been fixed when the 1994 bill was being written.

Instead, Biden and Clinton chose to build more cages, more prisons.

Right.

So we know the act doesn't have teeth.

But the answer is not to kill the patient, right?

mean, you look in their mouth and you say, hey, we're going to replace this with a full set.

You know, don't say it's that or we're just going to turn up the laughing gas until you're not a problem anymore.

mean, the people writing the bills now aren't the same people from 94.

Dick Durbin is pushing for the 106 million because he knows that the federal defender system is the gold standard.

And if it collapses,

There's no hope for the states.

There is a generational shift in the understanding of what safety means.

We're seeing that you can't have a safe society if the justice system is perceived rightly as a pay to play racket.

The $10 million from Rossi's office is a seed.

It's the first time since the 1960s that the DOJ has had a dedicated permanent wing to advocate for the other side of the courtroom.

Yeah, I-I-

permanent wing that Jeff Sessions deleted with a memo, right, like an email.

And that's kind of the fragility of internal reform.

It's a soft fix, right?

Like it's a configuration file that can be overwritten by the next admin who wants to look tough on crime.

And so what I'm talking about is hard infrastructure.

If you want a real

adversarial process.

You don't make the defense budget a line item.

You tie it to the prosecution's budget.

For every dollar the NDAA lobbies for, for every dollar the FOP gets for law enforcement, a dollar must by law go to the public defender.

If you want $30 billion for a crime bill, fine.

$15 billion goes to the defense.

And that, in my opinion, is the only way to truly stop the modern machine.

I look, I love the idea of a one-to-one parity mandate, but that would be the most radical piece of legal reform since the Bill of Rights.

I mean, I love the logic of it.

It treats the Sixth Amendment like a thermodynamic law.

You can't add energy to one side of the system without equalizing the other.

But until we get there, we have to work with the tools we have.

We have to use the Enzana ruling to show the cost of failure.

We have to use the GAO report to shame the burn jag administrators.

We have to make the $106 million shortfall a political liability

for anyone who claims to care about the Constitution.

Yeah, but it's only a liability if people actually know about it.

And that's that's what we're struggling with all the all around the board now.

Right.

Like is that everything is happening so fast that nobody nobody knows unless they're they're tuned in to that particular station or that particular object or that particular

source of truth that these things are happening underneath the blanket.

Right.

This machine

of our current court system is really good at hiding the actual costs, right?

It hides the $52 million sequestration impact in administrative adjustments.

It hides the $30 billion legacy of the 94 Bill, right, in public safety grants.

They want us to think of justice as this abstract philosophical concept from Hugo Black's 1963 brain.

I want to think of it as a budget.

as a series of checks written to the NDAA while the Public Defender's Office is literally falling apart.

And that Joshua is where we overlap.

Hey, it's the name of the podcast.

right.

The philosophy of justice is meaningless without the plumbing to deliver it.

Whether it's your one-to-one parity mandate, which I love, or my incremental institutional build out through Rachel Rossi and the OHA, the goal is the same.

Make sure that equal justice under law isn't just a 50 cent stencil on the front of a multi-billion dollar courthouse.

that only one side can afford to enter.

Yeah, I mean 50 cents for the stencil, $106 million for the lawyers.

We're getting there, slowly, but the enzonification of the country is moving a lot faster than the $10 million budget of the Office for Access to Justice, which essentially puts a

Ferrari against a tricycle.

we better start peddling then because the alternative is 1963 all over again and Clarence Earl Gideon shouldn't have to keep winning his case every single year.

Yeah.

I mean, you talk about pedaling, but the bike doesn't really have a chain, right?

You're trying, you're trying to ride a frame.

Um, let's, let, let, let's look at, at Leo hurl herring, right?

This isn't ancient history.

This is 2010 in New York, which was only what 16 years ago.

Uh, um, and that was that case for the, the legal heads is the hurl herring V state in New York, 15, uh, NY three D eight.

Leo was the the lead plaintiff in a clash action lawsuit because the system That will would like to see reformed From within was essentially a ghost right he had a key had

countless others in five New York counties anon on on on dogga Ontario Shuler Suffolk and Washington counties That were being processed like raw data through a broken pipeline,

right?

No counsel at arraignment, no investigation, just a fast track to a plea or a sell because the state decided indigent defense was a line item.

They just could, I don't know, skip.

And that is exactly what the legal framework saved the day.

It took years, yes, and the frustration is justified, but the Hurl-Haring settlement forced the state of New York to finally take responsibility.

They couldn't pass the buck to the counties anymore.

It mandated caseload caps.

It mandated that every single one has a lawyer at their first appearance.

That didn't happen because of riot or total collapse.

It happened because the New York Civil Liberties Union used the courts to hold the state to its own constitutional promise.

It happened because the state got caught red-handed violating the basic service level agreement of the constitution.

Yeah.

But, but look at the cost of the, of the reform, right?

How many people spent months in Suffolk County jails because their lawyer was a name on a piece of paper that they had never met.

Right.

In, in my world, if you have a 0 % uptime on a court, a core service, right.

I don't get to say, well, we're working on a settlement.

I would get fired.

because that system is actively in failure.

But in the justice system, the failure is the product.

You mentioned earlier the court holding the state to its promises, but the state has a $30 billion incentive to keep the machine running.

That's the 1994 crime bill legacy, right?

Clinton and Biden didn't just fund the police, they funded a specific type of institutional momentum.

that defense can't keep up with.

Look, 1994 bill was a blunt instrument.

I'll grant you that.

It was a reaction to specific fears of a specific era.

But again, we aren't in 1994 anymore.

We have the data now.

We have the GAO report explicitly outlining the disparities in how Bernie Jaguars funding is used.

We're finally seeing the federal government admit that if you only fund the sword of prosecution and the police, the shield of the defense withers away.

And that's why reestablishment of the office for OAJ is a massive win.

Um, Mary Garland didn't just bring it back.

He expanded it.

Rachel Rossi is at the helm.

There isn't just a placeholder.

That's not just a placeholder.

It's a $10 million strike team designed to fix exactly what you're complaining about.

$10 million.

10 million.

The National District Attorneys Association spent over 1.1 million just on lobbying last year.

And you can see the open secrets lobbying data.

I keep saying Rico.

I think the Fraternal Order of Police is literally a mob of unethical people.

But the Fraternal Order of Peace

Police spent again at 220,000 advocating specifically for those JAG grants.

And you can again look up open secrets under the lobbying records.

10 million in office is not going to counterbalance a multi-billion dollar enforcement industry, right?

It's a bake sale.

Jeff Sessions killed in 2017 with a single memo.

He didn't need floor debate, he didn't need that report, he just turned off the lights.

If a system is that easy to dismantle, that's not really an institution.

It's a temporary permit.

But keep in mind that was 2017, right?

We're not in 2017 anymore either.

And the fact is Dick Durbin could have done the same thing, except they didn't.

And the question is why and what do we do with that?

But it was dismantled under sessions because the, uh, the OHA lacked the statutory permanence we're fighting for now.

That's the work.

It's slow, it's agonizing, but it's how you build things that last.

You mentioned the money and you're right.

The scale is tilted, but look at the Enzana case in Oregon.

Mr.

Inzana, I'm not brave enough to try his full name, was a real person sitting in a real jail cell for months without an attorney.

Why?

Because Oregon's public defense system hit a hard failure point.

It literally ran out of lawyers.

And what happened?

A federal judge stepped in.

Judge McShane.

Exactly.

And he ordered the release of the defendants.

He said, if you cannot provide the constitutional minimum, you cannot hold these people.

That is the institution correcting itself.

It's the failsafe kicking in.

When the state fails to fund the Sixth Amendment, the state loses its power to prosecute.

That is a powerful level.

It's a lever that only gets pulled when the situation is so catastrophic it hits the news So Inzana should not have been in that position to begin with right like he's he's already

a low-income man in a state that prides itself on being progressive But he was languishing in a cell because of a shortage like we don't have a shortage of prosecutors We don't have

a shortage of police officers.

Well My area of the country certainly does

or at least they think they do.

We have a $106 million shortfall in the federal public defender budget.

Dick Durbin is on the Senate floor warning about it, but the money is being eaten by the sequestration ghost of 2013.

We lost $52 million back then, and we really never got it back, right?

Like it's a controlled demolition of the defense, and that's part of the slow creeping that I keep feeling every time I hear it's a slow, painful process.

because there's people that get really crushed under the weight of these things.

But I point back to the fact that it's not a demolition as long as Rachel Rossi and Dick Durbin are fighting to restore it.

I they're like the person chained up to the building, know, the old building that they're not willing to let be blown to pieces, which is, know, it's not a guarantee that it won't

be blown to pieces, but it's something.

The $106 million is a massive hurdle, although it seems shameful to say that given our current budget, but it's a visible one, right?

In 1963, before Gideon versus Wainwright,

Clarence Earl Gideon was just a man with an eighth grade education in a Florida prison.

He was charged with breaking and entering a pool room.

He asked for a lawyer and the judge told him no because he wasn't facing the death penalty.

Gideon didn't have a $10 million office.

He didn't have a GAO report.

He had a pencil and a piece of prison stationery.

And he Hugo Black, who was basically just tired of the state of Florida's bullshit.

But let's look at the reality of Gideon, okay?

He was a working class guy, a drifter.

I think there was a different word that we would have used back then, a tramp, right?

He was a tramp.

He was the kind of the humanity of it all.

And honestly, that's what I get angry about, right?

He won.

He won the right for every indigent person to have an attorney.

But 60 years later, we have Niamidzun Niazana, we have Leo Hurl-Haring, we have a $106 million hole.

What did Gideon actually win if the state can just underfund the right into non-existence?

It's like being granted the right to breathe, but only if you can afford an oxygen tank from a state-approved vendor.

Well, what he won was the legal standing to fight back.

Without Gideon, Earl Herring doesn't have a case.

Without Gideon, Judge McShane doesn't have the authority to release Inzana.

You're looking at the plumbing and saying it's clogged, and you're right, it's filthy, but I'm looking at the blueprint.

The blueprint says the water must flow.

My job and the job of the OAJ is to fix the pipes.

Fix the pipes.

Your anger is the pressure that makes the repairs urgent, but we need both.

Now I don't want to just fix the pipes.

I want to know why the National District Attorneys Association gets $1.12 million to lobby for more clogging, while the Public Defender's Office has to beg for scraps from the CJA.

LBJ signed that in 1964, right?

He put a million into it.

That was 1964 money.

Today we're looking at $106 million deficit.

We're moving backwards.

But the blueprint

Sure.

Okay.

So the blueprint solid.

Let's say it's solid.

The blueprint is being rewritten in real time by dollar amounts.

If you have $30 billion for the 1994 bill and 10 million for the OHA, the blueprint isn't really what you think it is, right?

Like it's a map of a fortress and the defense is stuck in the moat.

Let's call it like it is or like cousin Eddie called it the shitter is full no doubt But but the mode is where the battle is and look at the GAO report It's the first time we've

seen such a clear-eyed federal critique of the burn jag programs in equity and it's the government's own publication Right that report didn't happen by accident.

It happened because of internal pressure from people who actually believe in the Sixth Amendment They're using the bureaucracies own tools to show the rot when you show the rot

to the GAO It becomes a matter of public record

becomes something a senator can't ignore during a budget hearing.

But they do ignore it every day.

mean, especially this administration, right?

Jeff Sessions ignored the entire concept of the office.

He deleted it.

Now the closure of the OAJ wasn't a budget necessity.

It was kind of an ideological statement.

I think we all know that.

It said, look, we don't believe this side of the table deserves a seat at the DOJ.

And I think that that mentality persists very much so in this current administration.

in the way we fund the courts, it's in the way we prioritize public safety grants that only go to one side of the V.

But see, again, that's why the reestablishment matters so much.

It's a rejection of the Sessions memo, right?

Sessions wrote it, he shut it down, he had the power at the time.

Now, even now in the same administration that's come back around, we have Rossi still there.

Mayor Garland has basically said when he reestablished the OHA that the Department of Justice is not the Department of Prosecution.

It's a return to the Hugo Black vision, that equal justice under law isn't just a slogan for the wealthy.

Is it enough?

No, we've established that.

Is $10 million a drop in the bucket compared to $30 million?

$30 billion, excuse me?

Yes, absolutely.

But it's a drop of ink in a clear glass of water.

It changes the color of the whole conversation.

Yeah, it's a drop of ink in the ocean.

I mean, I see a man who was lucky enough to be part of a class action that actually worked, but I just, people in rural counties, okay, I live in a rural county, are

currently being represented by a public defender who maybe didn't sleep in 48 hours, smells like booze and has 150 stacks of files on their desk, right?

It doesn't, it doesn't feel like representation, right?

It's a processing plant.

And I think that a one-to-one parity, right?

If we, if we just spent all of that money that we spend filing reports and finding audits and all this other stuff and say, look, we're going to put it, all of our resources into

the one-to-one parity law and get that done.

The rest of it won't matter.

We won't need to audit anything going forward.

We just revolutionize, go for the revolution of the entire system.

If we don't say that for every dollar spent on a prosecutor, a dollar must be spent on a defender, none of it really just matters.

We're performing the idea of a trial.

Parity is the dream, it's the goal.

But until we get there, we use the tools we have.

We use the Nzani ruling to show the cost of failure.

We use the GAO report to shame the administrators.

We make that $106 million shortfall a political liability for anyone who claims to care about the Constitution.

We don't just complain about the system, we force the system to live up to its own rules.

I'm not just complaining, right?

I'm diagnosing.

This machine is designed to hide these costs.

It hides the $52 million sequestration impact in the administrative adjustments.

It hides the $30 billion in the public safety grants.

They want us to think that justice is just this ephemeral thing that eventually we will all obtain.

I want it to be thought of as a budget, as a line item, as a...

like a written to the NDAA while the public defender's office is literally falling apart.

And again, that's where we overlap.

The philosophy of justice is meaningless without the pulling to deliver it.

Whether it's your one-to-one parity or my incremental recommendations, the goal is the same.

We're getting back to that equal justice under the law being more than just a stencil.

Okay, so look, we spent 40 minutes admiring the problem.

Let's talk about the wrecking ball in the blueprint because from where I'm sitting, the DOJ isn't just neglecting public defense, it's pricing it out of existence.

If you have enough money, if you have enough influence, if you have enough power, you can have justice.

But if you don't have any of those things, you get lost in the system.

In my world, if you have a system where

Right operations, which are arrests and prosecutions, are infinitely scalable and funded by the state, but the read operations, the defense, and the constitutional checks are

throttled by a lack of bandwidth, your database crashes.

And that's what we're seeing.

We're seeing a system-wide failure because the DOJ treats the Sixth Amendment like a nice-to-have feature rather than a core dependency.

I don't disagree that the architecture is broken, Joshua, but I look at it as a legacy system that needs a massive painful refactor from the inside.

We're talking about the DOJ's Office for Access to Justice, the OAJ.

For years, it was shuttered, a literal ghost department.

Now it's back, but it's fighting for scraps while the justice side of the building is feasting.

The problem isn't just the money, it's the culture of prosecutorial excellence being the only metric for success.

mean, the reason you have the entire uh

plea bargain system that you're talking about, the modern machine, is because the government wins 98 % of its cases when you go to trial.

They don't bring cases they don't think they're going to win.

So that's not just the money, it's the change in the metric.

We have to make defense parity a KPI for every federal grant since the state.

So thinking back to the research brief.

What sticks in my hat, throat, whatever you call it, it's not just the current starvation of the system, right?

It's the historical betrayal.

Once LBJ signed the CJA with all the fanfare of a man saving the soul of the Republic, the initial appropriation was a million.

1 million and 64.

That might have bought you a nice fleet of cars in 1964.

But to provide counsel for every single poor person in the federal system, it was just a PR stunt masquerading as a revolution.

And we've been trying to fund a constitutional mandate with the spare change found under the sofa cushions of the Oval Office for 60 years.

It's not a shortfall, it's a design choice.

The state wants the power to cage you, but it views the cost of your defense as an administrative annoyance, like a filing fee that they're trying to find a way to waive.

Look, I'm coming around to your point of view here.

I mean, it's the disparity that really gets me, Joshua.

I keep coming back to that 1994 bill with $30 billion.

We can find 30 billion to build the cages and militarize the police, but today Dick Jarvan is begging for a measly 106 million just to keep the federal public defender's doors open.

It's not even a rounding error in the Pentagon's budget.

But the thing that actually keeps me up is that people like Mr.

Anzani in Oregon, or Anzana in Oregon, I mean, he's a human being.

sat in a jail cell for months not because he was found guilty because the state simply couldn't find a lawyer to point at him.

We've reached the point where the right to counsel has been replaced by a waiting list for justice.

When a federal judge has to order the release of a defendant because the state's too broke or indifferent to meet the bare minimum of the sixth amendment, the machinery hasn't just

broken down it's evaporated.

Yeah, it's gone.

It's a ghost.

We're all just participating in a seance and calling it a court here.

Maybe, but the fact that we're seeing a federal judge actually pull the emergency brake in Oregon gives me a sliver of something that isn't quite hope, but it is a demand for

accountability.

It means the system is finally choking on its own hypocrisy.

If the listeners want to help stop the suffocating, we have three specific actions that actually move the needle.

First, go to the CourtWatch Network at CourtWatchNetwork.org.

You want to see where the money isn't going?

Sit in a courtroom for three hours on a Tuesday.

Transparency is the only thing that scares a judge who's used to processing people like cattle.

Second, support the appeal at theappeal.org.

They're one of the few investigative newsrooms left that actually tracks the intersection of money and indigent defense.

Without independent journalism, these budget sequestrations happen in total silence.

Happen in a vacuum, right?

Third, contact your representatives about the Equal Defense Act.

You can find the breakdown of the legislation and how to take action at civilrights.org.

We need a national standard for public defense, not a zip code lottery.

And while you're clicking those links, remember to find us at oh fof.foundation.

You can subscribe to the show on Castapod, Apple Podcasts, or Spotify.

If you enjoyed this dumpster dive into the fire of American jurisprudence, leave us a review or don't.

The state will probably assign you a reviewer who has five minutes to read your comment anyway.

Yeah, well, let's make the reviews anyway, Joshua, because we let the people have their say.

Fine, let them have their say.

But honestly, after looking at Jeff Sessions 2017 memo closing the OAJ, I realized the most honest thing the DOJ ever did was stop pretending they actually wanted us to have

attorneys.

It was a refreshing, sociopathic sort of way, like a landlord taking the front door off its hinges so he doesn't have to listen to you knock.

So we're back to Clarence Earl Gideon writing a petition in pencil on lined paper because the world is a circle.

and it's a very, very small, very mean circle.

Hopefully we will see you next week.

Try not to get arrested in a county with a budget deficit.

I for one will do my best.

But look, even after Sessions tried to kill it, that office is back.

Merrick Garland reestablished it.

It's a $10 million pilot light in a very cold house, but the pilot light is still on.

That matters.

It means there are people in the building who haven't given up on the idea that law should belong to everyone, not just the people that can write a check.

It's a long walk to justice, but as long as we're still walking, we haven't lost.

See you next week.

It's on for now, the pilot light.

It's on for now.

See you next week.

Stay angry.

Love you brother.

Talk to you soon.

Bye.

Bye.