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March 27, 2024

Federal Defender Funding FY2025

Funding for FY2024 has come so late in the fiscal year that Congress is already working on funding for FY2025.

Funding for FY2024 has come so late in the fiscal year that Congress is already working on funding for FY2025.

Last year, an appropriations glitch nearly resulted in a more than $110 million shortfall for the federal public defense system. The system, comprised of full-time attorneys and private attorneys who take cases for a set hourly rate, is run and funded through the Defender Services Office (DSO) of the Administrative Office of the U.S. Courts.

The threatened shortfall in federal defender funding came at a critical time of rising demand; several hundred full-time positions would have been lost as well as reduced participation by private attorneys who could not accommodate projected delays in compensation. Had the erroneous funding level been enacted, it would have had dramatic negative consequences throughout the federal justice system.

But last summer, concerned lawmakers and advocates, including the American Bar Association, brought the shortfall to appropriators’ attention and received assurances that they would try to rectify the oversight. In March 2024, President Biden signed off on a final appropriations package that demonstrates congressional support for public defense, yet still falls short of the need. The funding also fails to cover the added costs created by the FY2024 appropriations process.

For example, as a result of the delayed funding, the federal defender program will need to rebuild. With only the erroneous numbers to go by since the start of fiscal year six months ago, the DSO imposed a hiring freeze on the federal defender program and suspended and deferred vital programs. With the year nearly half-over, the federal defenders now must rush to fill vacated positions and restore training and other vital programs.

Consequently, while disaster was largely averted, the ABA remains concerned   that funding delays and shortfalls continue to erode and threaten individuals’ Sixth Amendment right to counsel in criminal cases. Appropriators explained that varying cuts to programs reflect the fierce competition among thousands of interests under lower spending caps set by the Fiscal Responsibility Act (FRA), which imposed restrictions on discretionary spending this year and next. But federal public defense is not like other programs in the federal budget because it is a bedrock constitutional guarantee, and about 90% of those facing charges in the federal system require court-appointed representation.

Funding for FY2024 has come so late in the fiscal year that Congress is already working on funding for FY2025, which makes your participation in ABA Day very timely. If the FRA spending caps remain in place, Congress will be tempted to fund programs next year in a similar way, and federal public defense will continue to compete with the federal judiciary for congressional dollars.

Legislators have already spoken out strongly on the need for adequate funding for federal public defense in FY2025, and you can act now to join them by reminding your Members of Congress why the right to counsel matters and the importance of fully funding this constitutional mandate.

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