Some federal defense lawyers not getting paid for months as funding runs dry
The U.S. Courts announced on July 3 that federal funding for the Criminal Justice Act panel attorneys — the private lawyers that pick up public defender cases — ran out of money.
The length of time is unprecedented, lawyers said. In the past, funding gaps weren't usually longer than a few weeks.
The culprit? Congress only appropriated the same amount of funding as fiscal year 2024 — leaving it with an estimated $116 million shortfall it couldn't fill, according to a release.
Local lawyers who spoke with the Post-Tribune said they will continue to take cases and minimize the effect it has on their clients' rights.
Putting off cases is 'not an option,' defense lawyer Susan Severtson said, adding she hasn't seen this occur in her 35 years working in law. People are presumed innocent, and she will continue to request experts for her cases.
'I feel fortunate I can ride it out,' she said. 'Lots of new attorneys can't do that.'
If left unaddressed, the problem could spiral in the next fiscal year, forcing the judiciary to add $185 million to its budget request, U.S. Circuit Judge Amy St. Eve of the 7th Circuit Court of Appeals, told a U.S. House subcommittee in May.
That month, the judiciary asked Congress for $1.8 billion next year for public defenders, including covering back payments to private attorneys — a nearly 22% increase.
The Post-Tribune reached out to U.S. Rep. Dave Joyce, R-Ohio, chairman of the House Appropriations Subcommittee on Financial Services and General Government for comment.
In an email sent accidentally to a reporter, a Joyce aide said they had 'increased' public defender money, but chose to prioritize and 'fully fund' court security to protect judges and cybersecurity.
It's unclear what, if any, funding increase public defenders may see.
The U.S. House of Representatives has adjourned until September after House Speaker Mike Johnson said he wanted avoid votes to release files from the Jeffrey Epstein investigation, according to media reports.
About 90% of federal defendants can't afford to pay a lawyer. Across the country, about 60% of cases are covered by a federal public defenders' office, while 40% are covered by a panel attorney.
Most of the 12,000 private attorneys in the U.S. picking up these cases are typically self-employed, or work for a small law firm. The federal government pays them when the case is over.
It's not a cost they typically can afford to bear, Adam Tavitas said, the CJA panel attorney representative for the U.S. Northern District of Indiana. The lawyers have to turn around and pay paralegals, translators, case investigators and expert witnesses, etc.
About 15 lawyers in the Northern District of Indiana in Hammond are affected, he said, with about the same each in its South Bend and Fort Wayne offices.
'Obviously, just because you are charged with a crime, it doesn't mean you are guilty,' Tavitas said. 'Every person deserves good, competent representation.'
If they go into October and beyond — into the next fiscal year — with an even deeper funding hole, those lawyers could face up to six months without pay, said Jerry Flynn, Executive Director of the Northern Federal Community Defender program — who oversees career federal public defenders.
It's unlikely that judges or other officials would want that, he said.
The money will have to come from somewhere — that could mean potential staff cuts and/or higher caseloads for career public defenders, putting further strain on the system.
It could be a 'death spiral,' he said.
The Trump administration's priorities have included pursuing more death penalty cases and ramping up immigration enforcement. So far, there are no death penalty cases in the Northern District of Indiana, but they are anticipating there could be down the line, he said.
The biggest strains seem to be on border states with huge volumes of immigration cases, Flynn said. Media reports from New Mexico, for example, show some lawyers have stopped taking cases.
Indiana doesn't match those numbers, but he estimates immigration cases — mostly prosecuting people who have returned to the U.S. after they were deported — have increased by 2-3 times since Trump took office in January, totaling about 20 or 25 cases.
In the big picture, a funding shortfall could potentially leave death row inmates without representation, defendants in jail longer than necessary, or make a speedy trial not possible, according to a U.S. Courts release.
It also means it could be harder to recruit lawyers for the work in the future, if they don't know if they will get paid on time, Tavitas said. Or some could just quit.
Traditional public defender offices were unlikely to pick up the slack, as they are already understaffed and have been under a hiring freeze, Tavitas said. Flynn estimated the U.S. has lost 250-300 career public defenders over time, although locally the shortage isn't as urgent.
They take pride in what they do, Flynn said. Most of the Jan. 6 defendants, for example, relied on either career public defenders or panel attorneys — meaning the government picked up the tab.
'That's our job,' he said.
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