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Sens. Press Colleagues For Public Defender Funding

May 9, 2024

Sen. Peter Welch, D-Vt., a former public defender, led a letter Thursday to Senate appropriators calling for the federal public defender program to receive its full funding request for the upcoming fiscal year. 

Twenty-five Democrats, including Sen. Dick Durbin, D-Ill., chair of the Senate Judiciary Committee, one Republican and one independent signed onto the letter to Senate Appropriations’ Financial Services and Subcommittee on Financial Services and General Government panel, shared with Law360.

“During the FY24 budget cycle, Defender Services narrowly avoided a funding shortfall that would have caused public defender layoffs and deferred payments to [Criminal Justice Act] panel attorneys,” the letter reads. “For FY25, the Judiciary has submitted an appropriate request that should be fully funded this budget cycle.”

The Defender Services program received $1.45 billion in fiscal 2024 and for fiscal 2025 it has requested $1.69 billion.

“This essential funding supports the 4,420 attorneys, investigators, paralegals, and support personnel throughout the 82 federal defender organizations serving 92 of 94 judicial districts, as well as the Criminal Justice Act contracted panel attorneys who represent indigent individuals when federal defenders are unable to due to conflicts of interest or other reasons,” the letter reads. “The proposed increase will address inflationary costs, long-deferred necessary upgrades in IT and infrastructure, and additional federal public defenders to account for rising caseloads.”

According to a report issued in 2017 by a committee that was tasked by Chief Justice John G. Roberts Jr. with studying the state of public defense, 90% of defendants in federal court can’t afford their own attorneys. This was dubbed the Cardone Report, after the committee’s chair, Judge Kathleen Cardone.

Welch told Law360 in an interview in September 2023 that “competent counsel” for both the prosecution and defense is “the heart of the credibility of our criminal justice system.” Therefore, “you can’t take away access to competent public defense without really compromising the integrity of the system,” he said.

At the time, he was fighting against proposed cuts to the program, which congressional appropriations applied to the bill passed last year to avoid a debt default that imposed hard spending caps.

Then in early March, Welch and the other Democrats on the Senate Judiciary Committee urged the Administrative Office of the Courts in a letter to give “appropriate consideration” to the Defender Services budget for fiscal 2025.

They noted that a September 2023 report by the Federal Judicial Center as a follow-up to the Cardone Report “suggests the funding shortfall from FY24 originated in the Administrative Office’s accounting decisions” and sought to avoid that going forward.

Welch ultimately welcomed the funding the program received for fiscal 2024. 

In the new letter, the senators also noted another benefit to the program — it saves money. 

“Given the constitutional right to counsel regardless of ability to pay, courts who do not have federal defenders must employ private [Criminal Justice Act] attorneys, often at a higher cost to the taxpayer,” the letter reads. 

Sen. Chris Van Hollen, D-Maryland, who chairs the panel that received the letter, said in a statement provided to Law360 that he supports the vital role public defenders play. 

That “is why I fought tooth and nail to increase the final FY24 Defender Services funding level to above both the House and Senate bill levels,” he continued. “I’m committed to providing as much support as we’re able to this vital initiative within our FY25 allocation, and will be pushing my colleagues on the other side of the aisle to do so as well.” 

Story Written by Courtney Bublé, Law360

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