Judiciary Funding Lapse Strains Defense Bar as Shutdown Drags On

The government shutdown threatens to stress resources for an already strapped criminal defense bar, as the federal judiciary prepares to run out of cash.

Thousands of lawyers on what’s known as the Criminal Justice Act panel—who represent indigent defendants when federal public defenders can’t—have now been working for over three months without pay after funds dried up, with no end in sight amid the shutdown that began Oct. 1.

The funding lapse could threaten the ability of criminal cases to continue when court-appointed attorneys are needed, defense lawyers said. Federal public defenders rely on CJA panel attorneys to take clients in cases involving multiple defendants, when the defenders have a conflict of interest.

“I don’t know exactly what the inflection point is when folks just say, I can’t do it anymore. Boy, aren’t we asking a lot of our panel lawyers to even suggest they go a day longer?” said Jodi Linker, the federal defender for the Northern District of California.

Meanwhile, staff at federal public defender offices, who represent people who can’t afford attorneys, will begin working without pay next week. Their last guaranteed paychecks are set for Oct. 24 for work during the first two weeks of the month.

“It’s a complete and utter disaster,” said A.J. Kramer, federal defender for the District of Columbia.

Potential Fallout

The judiciary expects to run out of money on Friday, paving the way for possible shutdown-related furloughs of court staff for the first time in three decades. Though courts maintained funding for the five-week shutdown during the first Trump administration, multiple consecutive years of flat budgets have left the judiciary with narrower margins.

Several federal defenders said they don’t plan to furlough any staff. They’ll continue working without pay under shutdown protocols requiring criminal litigation to continue, even as some civil cases are postponed. They noted their offices are already understaffed, following months under a hiring freeze and tight budgets.

“It would be almost impossible to furlough somebody and continue doing what we need to do,” Kramer said.

Still, the cash crunch could have ripple effects across the criminal justice system where defendants are constitutionally mandated to have access to representation.

An interpreter told one federal defender they wouldn’t work for them without pay during the shutdown.

A California defense lawyer asked a federal court this week to dismiss criminal charges against his client, citing the funding lapse and ongoing shutdown.

The courts could also soon struggle to find enough CJA panel lawyers willing to be appointed to cases.

Those attorneys have worked without pay since July and were set to be reimbursed on Oct. 1 at the start of the fiscal year, when the new funding landed in the judiciary’s account. Instead, the government shutdown has left them waiting indefinitely to be paid.

CJA Panels

Renae Alt-Summers, the CJA panel representative for the district of South Carolina, has already had two Criminal Justice Act panel lawyers recently tell her they couldn’t represent new defendants since the shutdown, she said.

“Right now, trying to get enough people that are willing to take these appointments has been an issue,” she said.

Colin Fieman, federal defender for the Seattle-based Western District of Washington, said defenders in his district have already had to step in for initial appearances in multi-defendant cases when panel attorneys weren’t available.

If fewer CJA lawyers agree to take on cases, it could raise constitutional issues for defendants.

Defense lawyer Gregory Nicolaysen filed an Oct. 14 motion in the Los Angeles-based US District Court for the Central District of California arguing that the government’s failure to fund the CJA panel, combined with the ongoing shutdown, violates the Constitution. He asked a judge to dismiss criminal charges against his client.

“You prosecute; you pay. You don’t pay; you don’t prosecute. Complaint / Indictment dismissed with prejudice. That is the essential message that must be sent by the federal judiciary to the White House and Congress,” he wrote.

The financial strain could also put lawyers in a “precarious ethical position” as they must effectively represent their clients while personally struggling financially, said Lisa Wayne, executive director of the National Association of Criminal Defense Lawyers.

“The greatest injustice would be that lawyers are making decisions, and advising their clients, based upon inadequate resources and funding,” she said.

Personal Toll

The indefinite loss of salary has taken a toll on defense lawyers.

Roughly 85% of lawyers on the CJA panel are solo practitioners or work at small firms, according to the judiciary.

Alt-Summers, who relies on CJA cases for nearly all of her income, said she’s delayed Christmas shopping and scheduling visits to family while payments have been deferred.

Several defenders raised concerns that their employees, who are paid less than attorneys in private practice, may struggle financially if the shutdown continues too long.

“It’s stressful, difficult work, and they are so underpaid as it is, and yet they keep doing it because they care about it,” Linker said of her staff. “I worry what will happen to the system as a whole if we’re not able to guarantee that folks are able to get paid.”