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    August 29, 2023

    Federal Defender Services

    Confront Budgetary Crossroads in FY2024

    Without adequate funding, the Defender Services Office cannot deliver the right to counsel enshrined in Gideon v. Wainwright.

    Without adequate funding, the Defender Services Office cannot deliver the right to counsel enshrined in Gideon v. Wainwright.

    Sixty years ago, the Supreme Court ruled in Gideon v. Wainwright (1963) that people accused of serious crimes have a right to counsel at state expense if they cannot afford to hire one of their own. The following year Congress passed the Criminal Justice Act, which established a comprehensive system through which criminal defense attorneys are appointed and compensated to represent indigent clients in federal court. Today, that system, comprised of full-time attorneys and a volunteer panel of attorneys willing to take cases for a set hourly rate, is run and funded through the Defender Services Office (DSO) of the Administrative Office of U.S. Courts.

    But without adequate funding, the DSO cannot deliver the right to counsel enshrined in Gideon. And this year, the federal public defender program finds itself facing that very problem. This summer, sizeable cuts to DSO funding for FY2024 were approved within the House and Senate appropriations committees. The shortfall in the House of $113M would mean the DSO would need to reduce its workforce by 10%, and the $153M shortfall in the Senate would mean a 12% reduction of about 500 defender staff. These cuts also eliminate critical attorney training as well as necessary cybersecurity upgrades to the DSO digital network.

    If implemented, these proposed cuts would be devastating to the estimated 90% of federal defendants too poor to hire a lawyer. Presumed innocent, these men and women would be held behind bars longer while awaiting their trials, worsening the already significant impact that incarceration has on their families and their jobs and contributing to backlogs already in the judicial system.

    The DSO would not be relieved of its constitutional mandate, however, and would assign more cases to volunteer attorneys. Most of the attorneys that take these cases are in small firms or solo practice and must be compensated in a timely manner. Yet, these congressionally proposed cuts would delay their pay by three months or more. As identified in a letter signed by more than 170 law professors, the impact of these cuts on everyone involved in the criminal justice system would be profoundly unfair – a far cry from why the DSO was created in the first place.

    While there is no silver lining to the DSO’s financial picture for FY2024, there is reason to hope: neither the full House nor Senate has approved these cuts, early contact with lawmakers reveals they support increasing the proposed appropriations by some unknown amount, and there is still time to make a difference.

    For more than a century the ABA and its members have fought to establish the right to counsel and have no intention of giving in to the typical process for compromise on an issue so important as this. (ABA has a long history of advocating for indigent defense and public defenders (abajournal.com)). And lawmakers in both chambers, both parties, need to appreciate that simply raising the Senate number to match the proposed level in the House still fails to recognize Gideon’s promise of the right to counsel.

    While the ABA has already contacted Congress urging it to adequately fund federal defender services, the ABA Governmental Affairs Office expects to launch an online grassroots advocacy campaign in September to get constituents involved in this critical effort. We need YOUR help to remind lawmakers why the right to counsel matters and what it means to fully fund that constitutional mandate.

    Follow us @ABAGrassroots to learn more about this campaign to adequately fund federal defender services after Congress returns to Capitol Hill after Labor Day and add your voice to the collective voice of the legal profession when it launches.

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