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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowAttorneys representing indigent defendants in federal courts in Indiana and across the United States will not be paid for their work until this fall because the program that supports them has run out of money.
Attorneys who serve under the Judicial Branch’s Defender Services program were informed earlier this year that funding would soon dry up well ahead of the end of the fiscal year. It happed in early July, leaving the approximately 12,000 private panel attorneys who accept these federal cases each year in limbo for the next few months, according to a July 15 release from U.S. Courts.
“It’s a terrible way to run a constitutionally required program, and it has had devastating consequences to the lawyers who generally are people who want to provide these services, but they need to be paid for their time,” said Monica Foster, Chief Federal Defender and Executive Director of the Indiana Federal Community Defenders Office.
The Criminal Justice Act, passed in 1964, guarantees that defendants in federal cases who cannot afford legal representation have access to it by providing funding for court-appointed attorneys.
Panel attorneys are often pulled in when a public defender’s office has a conflict of interest on a case, like representing multiple defendants, or if a jurisdiction’s public defenders office is overloaded with cases.
Back in March, Congress passed a continuing resolution that froze all judicial branch funding at the fiscal year 2024 level. Because of the freeze, funding is not available in other Judiciary accounts to bridge the funding gap for panel attorneys.
This means these attorneys won’t get paid for their work for nearly three months: funding ran out in July, and attorneys won’t be paid until the new fiscal year starts on Oct. 1.
Today, over 90 percent of federal criminal defendants are represented by court-appointed attorneys because they cannot afford their own, according to U.S. Courts. Of that percentage, 60 percent of cases are handled by public defenders, while the remaining 40 percent are given to panel attorneys.
Practicing without pay
Howard Bernstein, a solo firm attorney at The Law Offices of Howard Bernstein, credits the national and local federal defender organizations for giving panel attorneys plenty of warning that the funds would soon run out. These attorneys could file CJA payment vouchers for some of the work they’ve done in anticipation of the rest of their payments being delayed.
But even the early warning could only do so much.
“We filed partial payment for the work we had done,” Bernstein said. “That helps, except, after a while, as life goes on, those funds run out.”
While these attorneys likely have other income sources, typically other clients through their private firms, it’s a lot of money to go without while still being expected to work, Foster said.
“They have budgets in their families too, and they count on that money coming in, particularly when they’re being expected to continue working,” she said.
Panel attorneys are paid $175 an hour in non-capital cases and $223 per hour in capital cases, which is lower than the market rate.
When Jonathan Bont, a partner at Frost Brown Todd LLP, became a CJA attorney in 2017, he knew it wouldn’t be feasible to exclusively take defendants under the act.
Still, it proves challenging in cases that take up more time.
“If you’re going to have a trial in a CJA case, you’re looking at, in federal court, anywhere between one week and four or five weeks where, that’s what you’re working on [and] not much else,” he said. “I don’t care how many other cases you have or how many other clients you have, that’s a big, big burden.”
Attorneys that spoke with The Indiana Lawyer said this is one of, if not the longest period in recent memory that panel attorneys have gone without getting paid for their work. In its July release announcing the funding crunch, U.S. Courts said these payments have been suspended during previous congressional budget troubles, but usually for no more than a few weeks in a fiscal year.
And despite the promise of payment come October, attorneys are still unsure what payments will look like at that time.
“When we get the new money on October 1, we’re already down the $110-plus million. They’re gonna start paying off the debts that they have,” Foster said. “That means we’re gonna run out of money even sooner next year, unless they give us more money.”
Right now, the judiciary is negotiating more funding to the program to mitigate payment deferrals and avoid the same problem in the new fiscal year. It’s asking congressional appropriators for an additional $116 million to help solve the problem.
But beyond the Defender Services program, the judicial branch as a whole is struggling to maintain ground amidst an ongoing funding crunch. In May, Seventh Circuit Court Judge Amy St. Eve, who chairs the Budget Committee of the Judicial Conference of the United States, testified that the branch struggles to work at stagnant budget levels while inflation impacts several expenses.
Congress allowed a 2% federal employee pay adjustment to take effect at the beginning of the year without providing resources to fund the increases, St. Eve told the House Appropriations Subcommittee on Financial Services and General Government on May 14.
“This means that we are struggling just to sustain what staffing and capabilities we already have and that new investments needed to address critical emerging requirements are even more unattainable,” she said.
Ripple effects
The ramifications of the funding problem go beyond panel attorneys and could impact defendants themselves, even those on death row, U.S. Courts said. The program not only pays attorneys, but specialists who work alongside the defense in the cases, including expert witnesses, investigators, and interpreters.
Without payment, several panel attorneys and experts could choose to decline cases, leaving defendants waiting for legal representation they have a constitutional right to.
“Nationally, we’re seeing a fall off of people wanting to do this work,” Foster said.
This spring, about 10% of CJA attorneys in the District Court of North Dakota resigned from the panel upon learning of the impending budget shortage, the North Dakota Monitor reported.
While Indiana attorneys The Lawyer spoke with could not recall knowing anyone personally who had withdrawn from panel membership, they said they wouldn’t be surprised if it happens.
“Everyone around you is getting paid. I mean, the court staff, the judges, the U.S. attorneys, everyone’s getting paid, but you, and that adds to the tension,” Bernstein said.
Because of strict budgeting from Congress, federal defender offices have been under a hiring freeze for 17 of the last 24 months, according to U.S. Courts. This means that there may not be enough public defenders to take the cases that panel attorneys won’t.
“We can’t represent as many people. More cases then have to go to the CJA lawyers, but we’ve got fewer people willing to do that work, and you’re going to have a Sixth Amendment crisis on your hands,” Foster said.
So, what’s next? As of Aug. 8, leaders are still waiting on approval for supplemental funding.
Foster said they should get some information on how much funding the program will receive when it gets Senate markups on its budget request, which likely will happen in the next two weeks.
Until then, panel attorneys continue to wade through the in-between.•
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