As the U.S. government shutdown continues to halt paychecks for federal workers nationwide, it is also intensifying the financial hardship faced by private attorneys who defend indigent
defendants in federal criminal cases.
Roughly 12,000 private lawyers serve on panels that provide court-appointed representation under the Criminal Justice Act (CJA). But the program exhausted its funding in early July. With the shutdown now in its 34th day—and Congress unable to authorize new spending—many of these lawyers are going unpaid.
Court-appointed attorneys handle about 40% of federal cases involving defendants who cannot afford counsel. The other 60% are handled by federal public defenders, who themselves have been working without pay since mid-October. Despite the funding lapse, federal courts remain open and cases are still moving forward.
The shortfall is one more example of how the shutdown—which on Tuesday will tie the record for the longest in U.S. history—is disrupting essential government functions. The impasse has already halted economic data collection, slowed air travel, and cut off federal food assistance for low-income families.
Defense lawyers warn that continued funding delays could jeopardize the constitutional right to counsel established by the Supreme Court’s 1963 ruling in Gideon v. Wainwright. Some defendants have even moved to dismiss their charges, arguing that lack of resources for lawyers and experts undermines their right to a fair trial.
In an Oct. 20 ruling, U.S. District Judge William Shubb in Sacramento rejected one such request. Defense attorney Danica Mazenko argued that continuing prosecution without paying court-appointed lawyers “would render Gideon a hollow promise.” But Shubb noted that no modern shutdown has led a court to conclude that delayed payment violates defendants’ rights.
Similar arguments surfaced in New Mexico, where a defendant charged with possessing thousands of fentanyl pills sought dismissal because his lawyer could not get paid or hire a necessary forensic expert. U.S. District Judge Matthew Garcia called dismissal an “extreme” measure but postponed the trial until January to allow time for the funding crisis to resolve.
“Criminal defendants and society are interested in ensuring that the former have effective assistance of counsel and access to a fair trial,” Garcia wrote.
For many attorneys, the uncertainty is untenable. Richelle Anderson, the New Mexico lawyer, said it was difficult to understand how Congress let the system reach this point. “You can’t have a criminal trial if you don’t have defense attorneys showing up,” she said.
The strain is especially severe for sole practitioners and small firms, who make up about 85% of panel attorneys. Unlike larger practices, they rely heavily on predictable income.
“When you’re a sole practitioner, predictability of income is tremendously important,” said Jason Tupman, the federal public defender for North Dakota and South Dakota. “If this is not going to be predictable, they’re going to have to do something else.”
Panel attorneys are already compensated at well below market rates—$175 per hour for most cases and $223 in capital matters, paid only after submitting vouchers. Now, many say they are at the breaking point.
In California’s Central District, which includes Los Angeles, the number of available panel attorneys has dropped from around 100 to fewer than 20, according to Anthony Solis, the district’s Criminal Justice Act panel representative. In the Southern District, officials say participation has fallen from about 100 attorneys to the low 70s.
In North Carolina’s Eastern District, panel representative Kelly Margolis Dagger said five to 10 lawyers have indicated they may soon stop taking cases. While she plans to continue accepting appointments, she said she understands why many small-firm and solo lawyers feel they can no longer shoulder the burden. Photo by UpstateNYer, Wikimedia commons.
