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Lawmakers press to avoid funding pitfall for public defenders

Spending levels could further strain a system in which most federal defendants receive court-appointed representation

Sen. Chris Van Hollen, D-Md., leads his chamber's Financial Services Appropriations Subcommittee.
Sen. Chris Van Hollen, D-Md., leads his chamber's Financial Services Appropriations Subcommittee. (Tom Williams/CQ Roll Call file photo)

Appropriators from both parties say they are working to address a budget pitfall for federal public defenders, as funding uncertainty already has led to a nationwide hiring freeze for offices tasked with representing poor defendants.

Lawmakers in both chambers say the House and Senate versions of the fiscal 2024 Financial Services and General Government spending bill, which covers defender services, would effectively cut its funding. Adding $108 million to the House proposal and $136 million to the Senate mark would at a bare minimum support the right to an attorney in federal court, the lawmakers argue.

Increasing the figures is among the issues appropriators face as they negotiate a final version of the Financial Services bill. That measure has a March 8 deadline in the current stopgap law, part of a greater clash over government funding that has led to multiple stopgap spending measures.

Public defenders and their supporters describe the House and Senate proposals as a crisis in the making. Judiciary officials have warned the levels could lead to layoffs; defenders argue they would further strain a system in which most federal defendants receive court-appointed representation.

And appropriators could face tough decisions on the funding issue, with spending caps in last year’s debt limit suspension law and less than a month to avoid a partial government shutdown. It’s unclear if lawmakers will be able to pass a final funding deal.

Sen. Chris Van Hollen, D-Md., who leads his chamber’s Financial Services Appropriations Subcommittee, called it a “priority” to provide adequate funding, “even in a tough budget environment.”

“Around here [it] ain’t over til it’s over. But I think there’s bipartisan agreement that we need to provide sufficient funding for public defenders,” Van Hollen said.

“We certainly need to increase the Senate amount up to the House level, but we should also look to see if that is sufficient in itself,” he said. “So we are looking very closely at this on a bipartisan basis.”

Van Hollen’s counterpart in the House, Rep. Steve Womack, R-Ark., said it’s too early to speculate on final figures.

“So we don’t know yet. I’m optimistic that we’ll be OK there, but we’ll see,” Womack said.

On the surface, the Senate proposal would freeze funding at $1.38 billion for defender services, while the House proposal would increase it to $1.41 billion. But in effect, both would represent a funding shortfall, according to defenders and judiciary officials.

Both proposed figures used fiscal 2023 funding as a benchmark, even though the enacted figure was “artificially low,” according to Melody Brannon, the federal public defender for the District of Kansas.

A slowdown in operations over the pandemic meant that a $110 million surplus was carried over into fiscal 2023, Brannon said, and lawmakers took that into consideration when they appropriated the $1.38 billion figure for fiscal 2023.

When asked about the Senate proposal, Judiciary Chair Richard J. Durbin said in an interview last month that he thinks “there was a mistake made, to be honest with you, in communications at the staff level, because I know Sen. Van Hollen has been a strong advocate.”

“He told me he was going to try to fix it,” the Illinois Democrat said.

Durbin said Democrats are “very supportive” of funding federal defenders but also cautioned that it will be a “tough” budget year, saying allocations overall “are not going to be as generous.”

Without a boost, the proposed levels would lead to an increase in pretrial detention time for defendants, as well as undercut the administration of justice, harming victims, witnesses and the accused, public defender supporters argue.

Hiring freeze

As Congress grapples over funding, federal public defenders across the country are struggling under a hiring freeze, an austerity tactic imposed by judiciary officials after the release of the House and Senate figures last year.

Public defenders contend the freeze has stretched their resources, leaving them unable to fill open positions and at the mercy of natural staff attrition.

Rep. Steny H. Hoyer of Maryland, the top Democrat on the House Financial Services Appropriations panel, said the issue is serious and needs to be addressed by lawmakers.

“I’m very concerned about that,” Hoyer said. “We’re going to have to lay off people, and of course, that will cost us more because they’re constitutionally required to have counsel.”

Fellow lawmakers on both sides of the aisle are urging appropriators to fix the defender issue, and say inflation should be taken into account.

“The resources matter and the caseload matters,” Rep. Kelly Armstrong, R-N.D., said. “Really good lawyers can do bad work because they’re overworked, so it’s important to the administration of justice.”

Rep. Laurel Lee, R-Fla., a former assistant federal public defender, said they provide “an economical, sensible way to provide quality representation that these defendants are entitled to have.”

Rep. Suzanne Bonamici, D-Ore., who co-led a bipartisan letter to appropriators months ago on the issue, said that if the figures are not raised enough, the nation could see a judicial system that is “not functioning properly.”

Rep. Mary Gay Scanlon, D-Pa., who also signed onto the letter, said the funding issue presents “a huge problem.”

“Not just in terms of the number of attorneys that they have who can take these cases, but also the support personnel, the experts you need to bring a case,” Scanlon said.

The proposed funding has triggered alarms from outside groups. The president of the American Bar Association, Mary Smith, sent a letter last month to lawmakers saying the proposed figures would “only produce increased costs, not savings.”

“We urge you to reject these draconian reductions to an office already operating at minimum staffing and instead ask that you fully fund the office,” Smith wrote.

The American Civil Liberties Union, Americans for Prosperity and a range of criminal defense organizations, among other groups, signed onto a letter urging lawmakers to increase their appropriation levels for the program.

The need for appointed counsel will not dissipate, the groups argued, as the Justice Department pushes forward with its prosecution of people involved in the Jan. 6, 2021, attack on the Capitol.

“The undersigned organizations are deeply concerned about the hugely destructive impact of proposed cuts to the federal indigent defense system,” the letter states.

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