Defense lawyers for needy clients feel squeeze after congressional funding dries up

Washington — Just over a year ago, federal judges, defenders and a group of lawyers who represent criminal indigent defendants gathered at the U.S. courthouse in Baltimore to hear federal Judge Myron Thompson give an address.

Thompson, who sits on the district court in Alabama, and the others were there to commemorate the 60th anniversary of passage of the Criminal Justice Act, which ensures defendants who are financially unable to obtain adequate representation in federal criminal cases are provided counsel.

Signed into law on Aug. 20, 2024, the Criminal Justice Act, or CJA, allows for the appointment of private lawyers to represent criminal defendants when a federal defender cannot, and authorizes compensation from funds approved by Congress. 

Thompson, who has been on the federal bench for more than 40 years, was one of the first of these lawyers — known as CJA panel attorneys — appointed under the law within 10 years of its enactment, and he recalled being summoned for a meeting with then-Judge Frank Johnson shortly after starting a one-man practice in 1974. During that meeting, Johnson appointed Thompson to represent a defendant, with the trial set to begin the following morning.

“I have had a front row seat to the implementation and evolution of the act,” he told those assembled, heralding the CJA as “one of the most important pieces of legislation passed by Congress.”

Now, less than one year later, the program that pays these court-appointed private attorneys is facing a financial crisis, since it ran out of money in early July because of a funding shortfall. As a result, lawyers who are tapped by district courts to represent criminal indigent defendants are not being paid, and won’t be until Congress appropriates more money. Lawmakers are facing a Sept. 30 deadline to pass legislation to keep the government funded.

“It’s not just inconvenient,” Andy Birrell, president of the National Association of Criminal Defense Lawyers, told CBS News. “It threatens to cripple the ability to provide effective public defense, lead to back-ups, attorney shortages and a denial of due process and fair outcomes at a time when the federal government is, it seems to me, increasing prosecutions. It’s going to create a justice gap that ultimately harms all of us.” 

Aided by the CJA, the federal defender system today includes more than 12,000 private lawyers and federal defender organizations. There are CJA panels for all of the country’s 94 judicial districts, and most of these lawyers work for small firms or are solo practitioners. Nationwide, federal defenders are assigned 60% of criminal cases against defendants who cannot afford their own representation, and 40% go to the panel of private attorneys.

Courts typically turn to these lawyers when the federal defender’s office has a conflict of interest, like when a case has multiple defendants. But a hiring freeze for federal defenders’ offices that has been in place since mid-October has created a parallel crisis, leaving those attorneys overburdened with casework.

A panel attorney assigned a case is paid a rate set by law: $175 per hour for non-capital cases, and $223 per hour for death penalty cases. That amount is much less than market rates, and in order to receive compensation for each appointment, panel attorneys submit voucher payment requests that are approved by federal courts.

In Minneapolis, criminal defense lawyers may charge an hourly rate of $600, said Peter Wold, who does panel work and has his own firm. Ryan Villa, a criminal defense lawyer who serves as the representative for the CJA panel for the district court in New Mexico, said a lawyer in Albuquerque with 20 years of experience may charge between $350 and $400 per hour.

That difference in pay, coupled with the funding gap that has left panel attorneys uncompensated until early October, raises concerns that these lawyers could seek more high-paying work that isn’t reliant on Congress.

“Younger lawyers trying to get into this area may decide ‘I can’t deal with it, it’s not worth it,’ and go do something else, or just not apply to be on the CJA panel, or resign and not come back,” Villa told CBS News. “I think that is happening and will probably continue as long as we have funding problems.”

The program that pays these lawyers ran out of money July 3, and an estimated $116 million is needed from Congress to cover roughly 10 weeks of missed payments — which would be for work that the attorneys have already done. But it’s not just the defense lawyers who are compensated through the program. 

Support staff hired to work on a case — such as private investigators, social workers, contract paralegals and forensic psychologists — are also not being paid, which could create a ripple effect that hits not only law firms, but also those businesses.

“The challenge is a lot rely on this for their everyday work, so it affects their ability to cover their overhead, pay for staff, pay for staff insurance and benefits, rent — all it takes to keep an office open,” Villa said. “A lot of people do the work not necessarily for the money, but to help others.”

Villa said he has heard of lawyers having to take out bridge loans or turning down assignments from judges to represent indigent criminal defendants because of the pause in payments. At his firm, four of its six lawyers accept CJA cases, and they make-up roughly one-third of its caseload. Villa began working as a CJA panel attorney in 2009.

The consequences of the stopped payments are already showing up on court dockets. 

In one case brought against three men facing drug charges, lawyers for the defendants asked the court to postpone their trial, set to start next month, as well as all deadlines. All three defense attorneys were appointed under the CJA, and they said that a delay is needed for them to complete several tasks that they can’t at this time because of inadequate funding.

The lawyers wrote that experts, discovery coordinators and investigators are refusing CJA work in New Mexico’s judicial district because they can’t be paid yet, depriving their clients of the tools needed to mount their defense.

“[T]his is an intentional act by the United States Congress to deprive the judiciary of necessary funds to ensure Defender Services, most notably the Criminal Justice Act services, are able to operate in a constitutionally appropriate manner,” they wrote. “The failure to provide funding has forced a dangerous competition between defendants’ constitutional rights.”

The judge presiding over the case has yet to act on the request.

“What might get Congress’s attention, or whoever’s attention you need to get, is the U.S. attorney or judges just dismissing cases because they aren’t able to provide counsel for defendants or timely trials. And that could happen,” Wold, the Minneapolis lawyer, said.

He said it will be a “dilemma” if the pool of lawyers willing to accept CJA cases shrinks and defendants have to wait to receive an attorney, which raises issues of speedy trial rights. While larger firms could step in to do more pro bono work, Wold said it likely wouldn’t be enough in a scenario where many of the court-appointed lawyers today stop that work.

“These are lawyers who are making a sacrifice by doing this work at all, and then they’re not getting paid on top of that, it’s difficult,” U.S. District Judge Cathy Seibel, who sits on the court in White Plains, New York, told CBS News.

Seibel chairs the Committee on Defender Services of the Judicial Conference, the policy-making body of the federal courts. Other federal judges have been sounding the alarm about the shortfall to Congress.

In April, Judges Robert Conrad and Amy St. Eve sent a letter to the leaders of the House and Senate Appropriations Committees warning of what they said were “concerning impacts” of the stopgap spending bill approved by Congress in March. That measure, which funded the federal government through September, boosted defense spending but decreased non-defense spending below 2024 levels.

“These are payments for constitutionally required legal work that has already been performed but that will be left unpaid for months simply because we cannot afford to make the payments,” St. Eve and Conrad told lawmakers of the money to court-appointed private attorneys. “Faced with such a long delay in receiving payment, these attorneys and their experts could decline to accept future CJA appointments by a court, potentially creating unlawful delays in the constitutional right of defendants to a speedy and fair trial.”

Behind the gap this year is the amount Congress approved for the program in March: $1.45 billion, which is $129 million less than what the Judicial Branch requested and an extension of funding for 2024. For fiscal year 2026, the judiciary is seeking just over $1.7 billion for Defender Services. That figure includes the $116 million to cover the shortfall in payments to court-appointed lawyers, as well as a $12 million increase to cover a projected rise in their caseloads.

“It’s in the Constitution. There isn’t a lot of the federal budget that is required by the Constitution. This is not optional,” Seibel said. “And also, what we think of ourselves as a society, we want to make sure our justice system works the way it’s supposed to and that there’s good advocacy on both sides, and you can’t expect people to work for free.”

Both chambers of Congress have each passed a handful of individual appropriations bills, and a funding proposal from a House Appropriations Subcommittee that provides money for financial services and general government, including the judiciary, calls for roughly $1.5 billion for Defender Services.

But with lawmakers on a monthlong recess and not set to return to the Capitol until Sept. 2, it’s likely they’ll have to approve a stopgap funding measure to avert a government shutdown. That bill, known as a continuing resolution, would keep funding levels steady.

“It’s nobody’s fault that the money has run out, but we can’t print money,” Seibel said. “We need the Congress to focus on this.”

While keeping funding levels flat for another year would re-fill the pot of money for payments to the panel lawyers, it would be a temporary fix. Villa said the money to compensate these court-appointed attorneys could run out again, and potentially earlier than it did this year, by next June.

“We can expect Congress to underfund it again, which means money is going to run out sooner so the problem will compound even if they keep prosecutions at the same level,” he said. “The criminal justice system is really a three-legged stool — you’ve got the prosecution, the court and the defense. It doesn’t work without all three of us. Cases cannot get processed from arrest, prosecution to conviction without all three of us, so the system will absolutely break down.”

Seibel said the judiciary is working to avoid a situation where another funding gap impacts the Constitution’s guarantee of the right to an attorney.

“That’s the nightmare scenario we’re trying to avoid,” she said.

Sen. Peter Welch, a Democrat from Vermont who has raised concerns about the ramifications of underfunding the defense program, urged Congress to “fully and sustainably” fund Defender Services.

“As the Senate’s only former public defender, I know how important federal support is to live up to our constitutional guarantee of the right to counsel,” he said in a statement to CBS News. “Cuts to the federal public defender program threaten this obligation.”

The Sixth Amendment establishes the right to assistance of counsel for the accused in criminal prosecutions, and the Supreme Court in 1963 extended that promise to criminal defendants in state courts in the landmark case Gideon v. Wainwright.

One year later, Congress enacted the Criminal Justice Act, which Thompson, the Alabama judge, said during the event last year commemorating its passage “gave life” to that ruling.

But Birrell, the head of the National Association of Criminal Defense Lawyers, said without a strong pool of lawyers who can represent people in federal criminal cases, which often bring strict rules, deadlines and sentencing guidelines, there would be no vindication of Gideon v. Wainwright’s promise. 

“Over the years, the federal government has taken a larger role in the enforcement of the criminal law, and if they’re going to be aggressively charging cases, which they are, there needs to be a way to process these cases in a way that’s fair, applies due process and is American,” he said. “The proper functioning of the CJA panel is an essential part of that enterprise.”