Federal public defenders deserve their pay

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Over 90% of the defendants in federal criminal cases have court appointed lawyers or public defenders. Federal public defenders handle 60% of these cases; panel, attorneys, who have agreed to serve on the courts’ Criminal Justice Act panel, handle the remaining 40%. Often, conflicts are referred to panel attorneys and sometimes they receive cases when the local public offender is slammed.

The panel attorneys have not been paid since July 3, when the program that pays these lawyers ran out of money. Despite a lack of payment for services, many of these attorneys have continued to represent defendants. For many, it is quite a sacrifice because they have mortgages, car payments, and other expenses to meet.

The hourly rates they are paid are not large and in most jurisdictions are below market rates. Non-capital cases are paid $175 an hour and capital cases are paid a maximum of $223 per hour.

These panel attorneys could decline to accept cases and some have done so. Some have said that it would be an unconstitutional taking for the court to appoint them when they cannot get paid. Whether or not that is the case, it’s not the point.

Panel lawyers are paid by funds appropriated by Congress. And these funds have not been appropriated. No doubt the recent shutdown will exacerbate these funding problems. To date, it is estimated that panel attorneys are owed for their services $150 million.

As well as depriving defendants of effective legal counsel the lack of funds makes it extremely difficult to hire expert witnesses and investigators.

Because failure to fund this program can result in denying defendants their constitutional rights to effective counsel, Congress must immediately act to fund these arrears and fund the future services of these panel members and needed expenses.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Arthur F. Fergenson

Nancy Forster

Susan Francis

Julie C. Janofsky

Ericka N. King

George Liebmann

George Nilson

Catherine Curran O’Malley

Angela W. Russell

Debra G. Schubert

Jeff Sovern

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.