Defense Lawyers Face Months Without Pay as Federal Funds Dry Up

One Kansas City-based criminal defense lawyer is taking out a loan to sustain operations this summer, as she prepares for more than two months without pay once the federal defenders’ budget runs out. Another defense lawyer in South Carolina said she will be paying her law student intern out of pocket and “putting everything on credit cards.”

Court officials have warned the defender services program will no longer have the funds to pay attorneys, appointed by federal courts to represent criminal defendants who can’t afford representation, for their work over the last few months of this fiscal year. They attribute the upcoming suspension to underfunding by Congress.

The judiciary expects to pay these lawyers on what’s known as the Criminal Justice Act panel back once it receives next fiscal year’s funds, beginning on Oct. 1. Using money from next fiscal year to back-pay this year’s expenses could tee up another funding lapse, depending how much is appropriated.

In the meantime, thousands of CJA panel attorneys, who are mostly solo practitioners or at small firms, won’t be paid for their work and will be left with the bill for expert witnesses, investigators,their own staff, and operating expenses as they continue to take on cases during the suspension period, estimated to start in mid-July and stretch through September.

Melanie Morgan, the Kansas City lawyer who previously served as the CJA panel representative for the district of Kansas and remains on the panel, said it’s the first time in more than two decades of law firm leadership roles that she’s had to take out a line of credit for her firm.

“It’s really frustrating to know that we are being asked to further subsidize these deficits that are occurring,” she said. “That seems unfair to put it on our shoulders.”

Lisa Wayne, executive director of the National Association of Criminal Defense Lawyers, warned the suspension will make lawyers less willing to take on these cases.

“I’m not sure what they expect these lawyers to do,” Wayne said. “How do you pay for this to continue to keep going? Three months may not sound like a lot of time, but it’s a long time for a pending case.”

Adding to financial challenges, the defenders have an unrelated, scheduled weeks-long payment freeze for system upgrades ahead of the funding expiration.

The system will be offline beginning June 11 through June 26, and CJA attorneys must submit payment requests by June 5 to be paid before the shutdown. Requests submitted during the offline period will be held in line and processed in order by July 4, according to a spokesperson for the judiciary’s administrative office.

Budget Woes

The upcoming budget-related payment suspension, estimated to begin July 23, was revealed publicly in April in a letter from judiciary officials to congressional appropriators.

The judges warned the judiciary will soon put on hold roughly $92 million in payments owed to private attorneys on the CJA panel because the courts can’t afford to pay them.

These payment delays could prompt attorneys to decline to accept these appointments in the future, “potentially creating unlawful delays in the constitutional right of defendants to a speedy and fair trial,” the letter said.

It could also impact the quality of defense itself, defense lawyers said. The suspension not only affects the attorneys, but also payments for case providers, like experts, whose bills would normally be submitted to the court for approval and reimbursement.

“If I send my investigator out to do work on a new case right now, I have to tell them, ‘I can’t pay you,’” said Renae Alt-Summers, the CJA panel representative for South Carolina. “That makes it difficult to get experts.”

The judicial branch’s budget woes stem from it receiving the same funding this fiscal year as last, an effective cut given inflation, after Congress passed a full-year extension of fiscal 2024 funding levels to avoid a government shutdown.

The federal defender organization has been under its most recent hiring freeze since October, and has been under a hiring freeze for 19 of the past 24 months, according to Melody Brannon, the federal defender for Kansas and defender chair of the Defender Services Advisory Group.

The defenders have also canceled in-person training, space inquisition, and information technology security improvements to save money, Brannon said.

The judiciary has requested a more than 21% increase in funding next fiscal year for its federal defenders. Those funds will go toward maintaining current defender services, as well as hiring enough new employees to fill nearly all required staffing increases.

It would also aim to cover the costs of paying private attorneys to represent indigent defendants, both for next fiscal year and to pay them back for this summer’s suspension, according to the request.

Compounding Challenges

The budget constraints come ahead of an expected increase in criminal cases under new priorities by the Trump administration.

Top Justice Department officials have issued memos asking prosecutors to charge more border cases and resume seeking the death penalty in eligible cases.

Capital cases are known to be resource-intensive, defense lawyers said, making it hard for defense lawyers to take them on without payment.

And as the Justice Department touts higher numbers of prosecutions across the border, US attorney’s offices near the border have been exempted from a federal hiring freeze for immigration cases.

Margaret Katze, federal defender for New Mexico, said the defenders rely a lot on CJA panel lawyers.

The number of initial criminal appearances in her district each day has roughly tripled compared to this time last year, mostly with misdemeanor offenses for entering the US without inspection and trespassing, according to Katze.

“It’s just really unfair. If we really cared about having a fair, equitable, sufficiently staffed federal justice system, there would be some kind of parity,” Katze said.