Funding Crisis Leaves Defense Lawyers Working Without Pay

The program that pays court-appointed private attorneys to represent indigent federal criminal defendants has run out of money, starting the clock on a painful three-month delay in paying these attorneys and their related service providers for constitutionally mandated legal work. 

The funding crisis has prompted concern throughout the federal Judiciary that many of these private lawyers, known as panel attorneys, could decline new cases. That could leave defendants, even those on death row, without adequate representation.

Judge Amy St. Eve, chair of the Judicial Conference’s Budget Committee, said, “The right of a criminal defendant to effective counsel regardless of the defendant’s economic status is guaranteed under our Constitution and the Criminal Justice Act. That fundamental right is at risk because we ran out of funding on July 3 to pay the private practice attorneys appointed to represent federal defendants.” 

Panel attorneys are paid from funds appropriated by Congress to the Judicial Branch’s Defender Services program. Payments to panel attorneys have been suspended during previous congressional budget crises, but rarely for more than a few weeks in a single fiscal year.

“These attorneys will not be paid until October 1 for the work they have done and for the work that we continue to ask them to do, unless the Judiciary receives supplemental funding from Congress before then,” St. Eve said. 

Over 90 percent of defendants in federal criminal cases have court-appointed counsel, because they cannot afford their own lawyer. Nationwide, federal defenders’ organizations handle about 60 percent of publicly financed cases. The remaining 40 percent are assigned to private, qualified defense lawyers who agree to serve on a court’s Criminal Justice Act (CJA) panel.

The continuing resolution to fund the government for fiscal year 2025 passed by Congress in March froze all Judicial Branch funding at the FY 2024 level, which resulted in panel attorney funding running out unusually early. Because of the hard freeze funding level, funding is not available within other Judiciary accounts to address the funding gap. 

The Judiciary has been in communication with congressional appropriators about the need for $116 million in supplemental funding to mitigate these payment deferrals and avert a continuing crisis. 

During recent congressional testimony, St. Eve said, “These disruptions in panel attorney payments negatively affect our panel attorneys, potentially reducing their willingness to accept future appointments and jeopardizing the ability to provide necessary and timely representation.”

There are more than 12,000 private panel attorneys throughout the country who accept CJA assignments annually. About 85 percent of them work for small firms or are solo practitioners who can ill afford long delays in payments for their work. Significant amounts of work affected by the funding freeze have already been performed.

Some of the attorneys “continue to work but are not getting paid, which obviously is a tremendous hardship, especially for small firms and solo practitioners,” said Judge Cathy Seibel, who chairs the Judicial Conference’s Defender Services Committee.

The funding shortfall also affects specialists employed by the defense to help effectively present their clients’ cases, such as investigators, interpreters, and expert witnesses. Many of those vital roles may go unfilled for three months, with unpredictable consequences for the criminal justice system.

For example, in the District of North Dakota, several long-tenured CJA attorneys recently resigned from the panel. The concern among many federal courts is that attorneys will decline appointments and trials will have to be postponed, leaving some defendants detained for longer than necessary or even compromising criminal cases if requirements under the Speedy Trial Act cannot be met.

The work can’t simply be turned over to federal defender organizations across the country because those offices are already seriously understaffed. Federal defender offices have been under a hiring freeze for 17 of the past 24 months because of tight budgets from Congress. Many defender offices are experiencing increased burnout among employees working excessive overtime.

Panel attorneys are paid an hourly rate of $175 in non-capital cases, and, in capital cases, a maximum hourly rate of $223, which are significantly lower than market rate. The rates include both attorney compensation and office overhead, such as rent, supplies, and equipment.

Keep updated on the evolving situation.