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Federal public defenders warn proposed funding would cause layoffs, court delays

Offices are in a hiring freeze amid uncertainty about fiscal 2024 appropriations levels

The exterior of the Phillip Burton Federal Building and U.S. Courthouse in San Francisco, which has the offices of the California Northern Federal Public Defender.
The exterior of the Phillip Burton Federal Building and U.S. Courthouse in San Francisco, which has the offices of the California Northern Federal Public Defender. (Patrick T. Fallon/AFP via Getty Images)

Hundreds of employees within the federal public defender system could be laid off under funding levels proposed by the House and Senate, according to judiciary officials who say the system has imposed a hiring freeze as uncertainty looms over the appropriation figure.

Public defenders and their allies warn that the proposed allocations in the fiscal 2024 Financial Services spending bills would be devastating, causing delays in criminal cases and longer pretrial detention for their clients.

And with workload demands, some public defenders say the proposal would decrease the quality of legal representation their offices would provide to defendants too poor to hire an attorney.

Federal court officials warned in July that the offices could have to lay off 9 percent or 12 percent of their staff under the House and Senate proposals, respectively.

That would hit a system where more than 90 percent of federal defendants receive court-appointed representation, judiciary officials told lawmakers in a letter. They cautioned that the proposed figures would harm defendants’ constitutional right to counsel and to a speedy trial.

Meanwhile, some Senate lawmakers have raised concern over the proposed figures, as federal defenders say their offices are already facing difficulties with the hiring freeze.

The federal defender offices are unable to fill open positions and worried that natural attrition will leave their staff with even fewer people. That’s a particular concern at a time when their offices already operate on tight budgets and deal with increasing amounts of discovery materials, federal defenders said.

Jodi Linker, federal public defender for the Northern District of California, said every employee that federal defenders lose negatively affects an office’s ability to provide effective representation for their clients, all of whom are poor and many of whom are people of color.

“They are individuals who need a voice in the adversarial system, and the hiring freeze cripples that,” said Linker, whose district covers San Francisco. “And if these budget cuts go into place, it will add further devastation to an already strapped system.”

On the other side of the country, the hiring freeze put on hold plans for the federal defender office for the Middle District of Georgia to staff an office in Albany, said Russell C. Gabriel, interim executive director.

The spending showdown that led to sequestration in 2013 forced the closing of the Albany office, Gabriel said. “It’s remained closed all these years. But we have needed, and we can use, an office there staffed with attorneys, investigators and the other staff that are necessary,” he said.

Attorneys from the offices in Macon and Columbus will continue making the approximately four-hour round trip down to Albany for court hearings, “sometimes to do a single hearing,” Gabriel said.

David Patton, the federal defender for the Southern and Eastern districts of New York, said the hiring freeze means his office is not able to hire two attorneys, an investigator, an office manager and a social worker position.

Even in the best of times, his office is understaffed and under-resourced, Patton said, particularly compared with resources of federal law enforcement and prosecutors.

Patton said it’s hard to imagine how federal public defense attorneys will move forward if the hiring freeze persists and proposed figures go into effect with layoffs.

“We’re certainly not going to be able to do the same level of investigation. Not going to be able to spend as much time preparing for hearings or trials. Not going to be able to spend as much time with our clients. And it’ll have a direct negative impact on our work,” he said.

Budget issues

The Senate proposal would freeze funding at $1.38 billion for defender services, while the House number would increase it to $1.41 billion. But defenders and judiciary officials say both those proposed figures for fiscal 2024 would in effect represent a funding shortfall.

Because their operations slowed down over the pandemic, defender services were left with a large surplus, about $111 million, that was carried over into fiscal 2023, said Melody Brannon, the federal public defender for the District of Kansas.

Congressional lawmakers took that surplus into consideration when they appropriated $1.38 billion for fiscal 2023, Brannon said.

But then this year, when lawmakers decided how much funding to propose for fiscal 2024, she said the House and Senate used $1.38 billion as a budget benchmark, even though the figure was “artificially low” because of the large surplus that carried over.

“This mistake leaves us with tens of millions of dollars less in 2024 than we had in 2023, and with far less than we need to carry out the defense function,” Brannon wrote in a letter to Sen. Jerry Moran, R-Kan., who sits on the Senate Appropriations Committee.

A group of 23 Senate Democrats are urging their colleagues to approve funding that is at least $136 million more than the Senate version of the Financial Services spending bill, saying Congress should uphold its constitutional responsibility to appropriately fund federal public defense.

“An overwhelming majority of the Federal Defender budget is dedicated to personnel and space,” the lawmakers wrote to Senate Appropriations Committee leaders. “Cuts to federal funding will directly impact employees, leading to a reduction in the number of paralegals, investigators, and attorneys.” 

Judiciary officials, in the letter sent to lawmakers over the summer, also said the proposed fiscal 2024 figures would fund the program below the fiscal 2023 financial plan obligation level “due to a decrease in offsetting prior year balances.”

In an interview, Brannon, the federal public defender from Kansas, issued a warning about the ripples that would take place if the funding drawbacks were implemented. Case dockets would be clogged, prosecutions would be slowed and people would wait longer in pretrial detention, she said.

“The entire system is going to be disrupted,” she said.