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May 02, 2024 Public Defense

Congress Must Act to Protect Federal Public Defense

Mark Pickett

In 2023, public defenders and their advocates across the country celebrated the 60th Anniversary of the Supreme Court’s decision in Gideon v. Wainwright, which guaranteed appointed counsel to persons charged with a felony but who cannot afford a lawyer. The year should have been a time for celebrating the achievements in public defense, as well as for advancing policies that would further improve access to a vigorous criminal defense regardless of wealth. At the federal level, the Department of Justice’s Access to Justice Initiative commemorated the anniversary with a national listening tour with public defense providers around the country. Press Release, Dep’t of Just., Justice Department Commemorates the 60th Anniversary of Gideon v. Wainwright (Mar. 17, 2023). Meanwhile, however, potential disaster looms as Congress considers a spending bill that would drastically cut the federal public defense budget.

The proposed cuts, which became public in July of 2023, are not merely a small trim. The House of Representatives’ proposal would cut federal defender funding by about $80 million. The Senate proposal goes even further, saddling federal defense with a $109 million shortfall. To add insult to injury, the proposals do not appear to be the result of across-the-board belt tightening, or even a cabal of representatives dead set on dismantling the legacy of Gideon. Rather, poor communication between the federal judiciary and Congress, coupled with lack of federal defender independence, may be to blame. During the height of the COVID-19 pandemic, the federal courts slowed down, which in turn decreased federal defender spending through 2022. As a result, the Defender Services Office, which funds indigent defense at the federal level, carried forward $111 million to 2023. The Administrative Office of the U.S. Courts ordered Defender Services to use all of that money to offset its 2023 budget request. While that worked fine for 2023, when Defender Services requested a 2024 budget that no longer included that one-time offset, Congress balked at what was wrongly perceived as a request for a large budget hike. Nate Raymond, US Judiciary’s Budget Process to Blame for Potential Public Defender Cuts, Report Says, Reuters (Sept. 18, 2023). This issue, however, was identified months ago, but, as of December 2023, the budget proposals have not been corrected.

These cuts would be devastating, as overwhelming evidence has demonstrated that the federal public defense system is already underfunded and overly scrutinized. In 2017, a committee appointed by Chief Justice John Roberts and led by U.S. District Court Judge Kathleen Cardone “found troubling signs that many [federally appointed indigent defense] panel attorneys in particular are indeed ill-equipped and insufficiently compensated” and that “both panel attorneys as well as institutional defenders are unduly constrained by the nature and degree of judicial oversight.” Cardone Committee, 2017 Report of the Ad Hoc Committee to Review the Criminal Justice Act: Executive Summary (Oct. 2017). Approximately 90 percent of persons charged with a federal crime require appointed counsel, and these defendants face a special risk because federal offenses are often complex and come with draconian mandatory minimum sentences. Press Release, U.S. Sen. Comm. on the Judiciary, Durbin, Welch, Ossoff, Booker, and Hirono Lead 18 of Their Colleagues in Letter to Senate Appropriations Committee Leaders Urging Corrections to Proposed Federal Defenders’ Funding (Oct. 10, 2023). Federal defense counsel must be adequately resourced to ensure a level playing field with the significant resources of federal prosecutors and investigators.

The federal defense system has already reduced spending in anticipation of the budget cuts, including imposing a system-wide hiring freeze. These cutbacks have already had a negative effect on defense services. In the Southern and Eastern Districts of New York, for instance, a hiring freeze means the Federal Public Defender there cannot fill two attorney vacancies, as well as investigator, office manager, and social worker positions. In an office that is already understaffed, this inevitably means that defense counsel and other staff will not have the time to fully investigate and litigate all of their clients’ cases. Ryan Tarinelli, Federal Public Defenders Warn Proposed Funding Would Cause Layoffs, Court Delays, Roll Call (Oct. 13, 2023). But these cutbacks are nothing compared to spending reductions that will be necessary if these budget proposals become law. Federal public defender offices will need to lay off about 10 percent of their staff, or about 500 people nationwide. Carrie Johnson, Federal Public Defenders Warn Budget Cuts May Threaten Ability to Represent Clients, NPR (July 19, 2013). Court-appointed counsel would also likely face payment delays and hourly rate cuts, which would lead fewer qualified private attorneys to seek such appointments. All of this would come at a time when a large number of appointed counsel in the federal system are necessary to represent persons charged in relation to the January 6, 2021, Capitol Riot.

These cutbacks would be disastrous for clients as well as the federal criminal legal system in general. As has been observed in many states where public defense has been underfunded, criminally charged persons will have to wait longer for counsel to be appointed. Those who do receive counsel will have to wait longer for pretrial issues, such as bond, to be heard. Many others will languish in jail waiting for their trial dates. Federal defenders will be required to take on more cases, meaning less time to ensure that all their clients receive effective assistance of counsel. With fewer support staff to rely on, investigations and expert assistance will also be limited. As a result of this federal defender bottleneck, the federal courts as a whole will slow down, meaning longer delays for virtually anyone seeking justice in the federal judiciary.

Some members of Congress have sounded the alarm about these proposed cuts. In October 2023, 23 Democratic senators, led by Peter Welch of Vermont, sent a letter to the Senate Appropriations Committee urging that the budget be corrected to “maintain the right to counsel in federal court and continue the bipartisan support this program has historically received.” Nate Raymond, Democratic US Senators Urge More Funding to Avoid Public Defender Layoffs, Reuters (Oct. 6, 2023). In the House of Representatives, Democrat Suzanne Bonamici of Oregon and Republican Kelly Armstrong of North Dakota led efforts with a similar letter, noting that federal defenders are “essential” to our justice system and stating that “[c]uts to federal funding will have devastating effects, primarily, on vital personnel—paralegals, investigators, and attorneys.” Press Release, Suzanne Bonamici, U.S. Rep., Ore., Bonamici, Armstrong Lead Bipartisan Call to Increase Federal Defender Funding (Sept. 27, 2023).

Congress should heed these warnings. A miscommunication on accounting should not be used as an excuse to slash funding for a critically important public service. Congress must act to ensure that the right to counsel is protected.

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Mark Pickett

Chief Counsel on Indigent Defense

Mark Pickett is the ABA’s Chief Counsel on Indigent Defense. He previously represented indigent clients facing the death penalty in state post-conviction and federal habeas corpus proceedings in North Carolina.