More than 10,000 private attorneys will see less pay in federal indigent defense cases under the judiciary’s latest effort to deal with budget restraints Congress imposed.

The U.S. Judicial Conference has announced plans to reduce compensation rates to the private Criminal Justice Act panel attorneys by $15 per hour starting September 1—and continuing for the next 13 months—if Congress does not increase funding for the courts in the 2014 budget.

The move would save around $50 million for the defender services budget, which funds the federal public defender offices as well as CJA panel attorneys, according to the Administrative Office of the U.S. Courts. The panel attorneys handle about 30 to 40 percent of indigent cases when the public defender has a conflict or otherwise can’t represent a defendant.

That savings would allow the federal courts to prevent further staffing layoffs at federal public defender offices, which took the brunt of $350 million budget cuts to the courts this year as part of sequestration, conference chairman William Traxler, chief judge of the U.S. Court of Appeals for the Fourth Circuit, wrote in an August 16 letter to U.S. District Judge Catherine Blake of Maryland, chair of the Judicial Conference's defender services committee.

Under the new plan, payment to panel attorneys would drop from $125 per hour to $110 per hour in non-capital cases, and from a maximum of $179 to $164 per hour for capital cases. The Judicial Conference already had planned to delay September’s payments to panel attorneys for four weeks so they could be paid out of the new budget year starting October 1.

Traxler wrote that reducing panel attorney compensation, deferring panel attorney payments and having to keep federal public defender offices at low funding are “undesirable, and may impact the delivery of justice, but are necessary to avoid permanent damage to the federal defender program.”

“Measures of this kind, however, are not sustainable in the long term, and certainly would not be required if the judiciary were receiving an appropriate level of funding in this account,” Traxler wrote. “The Committee nonetheless remains committed to the goal of ensuring that the defender program can operate within its annual appropriations.”

Norman Reimer, executive director of the National Association of Criminal Defense Lawyers, said the move would be “truly lamentable” and “definitely a step backward.” Now, Reimer said, both the public and private side of indigent defense has been seriously degraded without any demonstration that they have not been efficient uses of taxpayer money.

Almost all CJA panel attorneys take cases out of commitment to the justice system. The lower rates raise the questions about whether small and solo practitioners can continue to handle these indigent cases. “I think there’s a danger that some lawyers who are just getting by might have to stop doing this work,” Reimer said.

“We have to look at the indigent defense system as a whole, and it needs to be adequately funded,” Reimer said. “This shouldn’t be looked at as a widget that can be mass produced.”

Congress, for its part, has moved forward appropriation bills that will restore the sequestration cuts. The House Appropriations Committee approved a fiscal year 2014 appropriations bill that includes $6.5 billion for the courts, roughly the same level it was in 2013, before sequestration cuts hit. The fiscal year begins on October 1. And a Senate appropriations subcommittee approved $6.7 billion for the courts, an increase of $148 million or 2.2 percent above the fiscal year 2013 level.

Still, federal courts officials have said the disagreement among the House, Senate and White House over other budget priorities could lead to yet another partisan battle in Congress that ends with a continuing resolution that either keeps the sequestration cuts or otherwise keeps the federal courts budget flat.


Last week, almost all of the nation’s chief judges, who described themselves as "the boots on the ground in our nation's federal trial courts," signed a four-page letter describing how low funding has weakened courthouse security, reduced public safety because of probation and parole cuts and caused dire problems for federal public defender offices.

Contact Todd Ruger at truger@alm.com.