Why Funding For Defender Services Should Matter To You

Beltway Bulletin from the Spring 2024 issue of The Federal Lawyer

“That no man’s liberty should become an accidental casualty to the size of his wallet.” —Senator Barry Goldwater, 1969

Imagine you are indicted for wire fraud in connection with the activities of a private corporation you formed with a neighbor. You believed that the company’s activities were legal; a clever and careful reading of accounting rules that allowed you and your friend to, in essence, make “mailbox money.” You spent your share of the company’s earnings to save your family farm and to pay for your children’s education. Now you are facing the awesome prosecutorial might and resources of the U.S. government. Even if you avoid conviction, it’s going to cost you—maybe everything you have and then some—before it’s over. You, like more than 90 percent of individuals charged with federal crimes, may ultimately need defender services.

What Are Defender Services?

Although the Supreme Court made clear in 1938¹ that the 6th Amendment to the Constitution guarantees every accused the right to representation by counsel in federal criminal prosecutions, until 1964 federal judges could only appoint—but not compensate—private attorneys to serve as defense counsel. Recognizing that relying entirely on members of the bar to provide pro bono assistance was not only unpredictable but also fundamentally unfair, in the Criminal Justice Act of 1964 (CJA), Congress established a system for appointing and paying defense counsel who will represent defendants who are “financially unable to obtain adequate representation” at every stage of federal felony and Class A misdemeanor cases.

With two exceptions, each judicial district’s CJA-approved plan includes attorneys who work for federal defender organizations (FDOs), as well as private “CJA panel attorneys.”² Jurisdictions have one of two types of FDOs: federal public defender organizations, which are federal entities whose staff are federal employees; or community defender organizations, which are nonprofit defense counsel organizations incorporated under state laws. The FDOs handle roughly 60-70 percent of federal criminal cases for indigent defendants and CJA panel attorneys handle the rest, typically when a conflict of interest precludes representation by the FDO. With guidance and supervision from the Judicial Conference, the Administrative Office of the U.S. Courts administers the federal defender and panel attorney program.

Why Am I Writing About Defender Services in the Government Relations Column?

The CJA authorizes Congress to appropriate “such sums necessary” to carry out the provisions of the act. What this means is that defender services receive discretionary funding, the amount of which is determined by Congress each year. Thus, to provide criminal defendants with their constitutionally guaranteed representation and to compensate those who provide that representation, the Judiciary’s funding request each year includes a specific amount for defender services.

How Much Money Do Defender Services Need?

In 2023, criminal cases comprised roughly 19 percent of new filings in federal district court. The Judiciary’s 2024 request for defender services is $1.5 billion, which is around 16 percent of its total budget request. This funding would pay the more than 3,700 lawyers, investigators, paralegals, and support personnel employed by the 82 FDOs across the country, as well as the more than 12,000 CJA panel attorneys who are paid by the hour for appointed representation. Maximum hourly rates for panel attorneys are $172 for non-capital cases and $220 for capital cases, with those rates intended to cover both attorney compensation and office overhead. Panel attorneys’ total compensation is capped based on the type of case; for example, $13,400 for felonies, $3,800 for misdemeanors, and $9,600 for appeals.

How Can You Help?

Each year, advocacy in support of the Judiciary’s budget request is a top priority for the FBA Government Relations Committee. Because the FBA is one of a scant handful of groups that engage with Congress on this issue, our voice is extremely important. The FBA, among other organizations, has noted with concern the public’s declining confidence in our courts and in the legitimacy of judicial rulings. In supporting funding for increased judicial security measures, the FBA has emphasized that an independent judiciary is foundational to our democracy and to the public’s faith in the fairness of our judicial system. Ensuring that our judges are free to make decisions without concerns about retribution is a key aspect of that fairness, but so is ensuring meaningful legal representation for individuals accused of federal crimes.

Even though the appropriations bills for FY24 may have been enacted by the time this article is published, we encourage FBA members—who are especially well-suited to communicate the critical role defender services play in our judicial system—to join our efforts to advocate for this funding for FY25 and years to come. 8

Endnotes

1 Johnson v Zerbst, 304 U.S. 458 (1938).

2 Two jurisdictions rely exclusively on attorneys appointed from CJA panels.