TOPEKA — For nearly 20 weeks, certain lawyers, paralegals, psychologists, interpreters, court reporters and investigators were not paid.
Federal funding for a group of criminal justice professionals expired in early July, and the government promised to reimburse them in October, but the longest shutdown in U.S. history delayed that promise.
As of Nov. 14, the government racked up a $682,598 bill owed to appointed federal defense attorneys, experts and service providers in Kansas alone. It is a fraction of the $70 million in unpaid vouchers across the country.
The delayed payments are a symptom of years of inadequate funding, resulting in understaffed public defender offices, financially strained panel attorneys and apprehension at the integrity of constitutional rights for people charged with federal crimes.
It is a crisis that isn’t solely financial. It is constitutional, said Dionne Scherff, a criminal defense attorney and the Kansas representative on the Criminal Justice Act panel, which is made up of private attorneys who take on indigent defense cases when federal public defenders cannot.
Scherff is one of roughly 60 attorneys who are appointed to federal criminal cases in Topeka, Kansas City and Wichita if public defenders can’t take on additional caseloads or run into conflicts. Without funding, critical service providers such as interpreters and court reporters have continued to work without pay, as have attorneys.
One Kansas attorney drew from a personal line of credit and retirement funds to keep a law office open and pay living expenses, according to a Sept. 10 letter to the Kansas congressional delegation.
“The smart economical and constitutional thing to do would be to fund it on the front end,” Scherff said.
In Congress’ legislation to end the shutdown, it carved out nearly $1.6 million for federal public defenders. That was about $200 million below defenders’ request, but it will make available the $70 million owed in back pay to panel attorneys. Payments are being processed and are expected to land in attorneys’ and service providers’ bank accounts this week.
However, the stopgap measure doesn’t carry public defenders and panel attorneys through the end of the fiscal year next October. It gets them to Jan. 30.
‘Crisis will come sooner’ The payment freeze is the longest since 2013, when panel attorneys and service providers went five weeks without pay. It caused constitutional violations and cracks in the criminal justice system.
In California, a federal judge tossed out a criminal case, finding that the defendant’s Sixth Amendment right to counsel had been violated.
“The right to effective assistance of counsel is a bedrock principle of this country and is indisputably necessary for the operation of a fair criminal justice system,” said Judge John Mendez of the Eastern District of California in a Nov. 12 ruling.
The case’s defendant was indicted last year on one count of methamphetamine distribution. He argued the lack of funding created an “untenable conflict between counsel’s professional obligations and their basic economic survival.” A jury trial was scheduled for January.
The Sixth Amendment doesn’t just articulate assistance of counsel but “effective assistance of counsel,” Mendez wrote.
The appropriate way to remedy “this chronic constitutional violation,” he said, was to dismiss the defendant’s indictment.
“To expect defense counsel to properly prepare for trial, while consistently denying her the tools to do so is, in this court’s view, not only unconscionable but also unconstitutional,” Mendez said.
In New Mexico, a group of Criminal Justice Act panel attorneys informed a federal judge that they would no longer accept new cases. They wrote in the Nov. 5 letter that the lack of funding placed “untenable strain” on attorneys and contractors who provide expert services.
“The more CJA cases we take on, the more harm we risk doing to our existing CJA clients because that means more time spent on other work for income streams and less time available to our indigent clients,” the attorneys wrote.
They said 2026 will be worse, predicting funding will run out even sooner than this year’s date of July 3.
Melody Brannon, the federal public defender for Kansas, agreed.
“The crisis will come sooner,” she said.
Inadequate funding is a shortsighted move, said Brannon, who also signed the letter to Kansas’ congressional delegation. Bills will come due and costs will rise later, culminating in a more expensive approach, she said.
“Budgets are moral documents,” she said. “Budgets reflect our values.”
Underfunding threatens the criminal justice system’s credibility, and it further erodes the confidence of clients, their families and the public, and choosing to continue to underfund federal public defenders reflects a society that is not valuing its most vulnerable members, Brannon said.
‘Justice is blind’
Federal public defenders and panel attorneys do not choose their cases. More than 90% of people charged in federal court are appointed an attorney.
“We’re standing in a line and ready to do a job because individuals — whether they’re charged with child pornography or a Jan. 6 incident or charged with a bank robbery — it actually does not matter to us,” Scherff said. “We don’t look at it with a political lens.”
It is expected, constitutionally and ethically, that panel attorneys and public defenders take a case and defend it vigorously, Scherff said.
“Justice is blind in that sense,” she said.
But, she added, clients suffer when Kansas panel attorneys resign because of no pay and more vow to leave if funding pitfalls continue.
If Jan. 30 arrives without full funding, federal public defenders, which have been under a hiring freeze for the past two years, will return to a state where they become strained when panel attorneys cannot take on new cases, Brannon said.
“And then,” she said, “what happens when someone comes to court and there is no attorney there to take that case?”
