Funding Shortfall for Criminal Justice Act Could Impact Quality and Availability of Legal Representation for Indigent Defendants, Including Capital Defendants

As of July 3, 2025, the Criminal Justice Act (CJA) pro­gram has run out of funds for the cur­rent fis­cal year, threat­en­ing the qual­i­ty and avail­abil­i­ty of fed­er­al defense coun­sel for the over­whelm­ing major­i­ty of crim­i­nal defen­dants who can­not afford to hire their own lawyers. The bud­get Congress approved for the CJA pro­gram in March is $129 mil­lion less than what was request­ed by the Federal Judiciary. As a con­se­quence, CJA appoint­ed defense teams have been denied pay­ment for their work since July 3, 2025. Unless Congress pro­vides sup­ple­men­tal fund­ing, the ear­li­est CJA court-appoint­ed attor­neys and sup­port staff, such as para­le­gals, inter­preters, and inves­ti­ga­tors, will receive pay­ment is October 1, 2025, at the start of the 2026 fiscal year.

For the 2026 fis­cal year, the Federal Judiciary is seek­ing $1.77 bil­lion for Defender Services, which includes $116 mil­lion to cov­er missed pay­ments incurred in the 2025 fis­cal year. An extra $12 mil­lion is sought in antic­i­pa­tion of the increased case­load cre­at­ed by President Trump’s direc­tive that DOJ ​“shall” seek new fed­er­al death sen­tences ​“where pos­si­ble.” If, how­ev­er, Congress decides to once again keep fund­ing lev­els flat, or pro­vide an inad­e­quate increase, then a sim­i­lar short­fall would be expect­ed to occur even ear­li­er in the sub­se­quent fis­cal year. House Republicans pro­posed a bud­get of $1.6 bil­lion for the 2026 fis­cal year that would fall short of the Judiciary’s request. According to a July 25 inter­nal memo by Judge Robert Conrad, Director of the Administrative Office of the U.S. Courts, the short­fall would again halt CJA pay­ments as of June 11, 2026, result­ing in the ​“longest defer­ral in the his­to­ry of the pro­gram.” Judge Conrad also warned that fed­er­al pub­lic defend­ers would be forced to elim­i­nate at least 600 posi­tions under this pro­posed bud­get. ​“Reductions of this mag­ni­tude would inhib­it the Defender Services pro­gram from meet­ing its con­sti­tu­tion­al­ly man­dat­ed mis­sion,” he wrote.

These poten­tial­ly cat­a­stroph­ic con­se­quences were not unex­pect­ed. Following pas­sage of the Continuing Resolution in March, Judge Conrad and chair of the Conference’s Budget Committee Judge Amy J. St. Eve warned of the expect­ed adverse impact on the Defender Services pro­gram in a let­ter to House and Senate Appropriations Committees on April 10, 2025. The let­ter explained that months long delays in pay­ment could deter attor­neys from accept­ing CJA work, ​“poten­tial­ly cre­at­ing unlaw­ful delays in the con­sti­tu­tion­al right of defen­dants to a speedy and fair tri­al,” and would ​“sub­stan­tial­ly increase” the Judiciary’s fund­ing for the sub­se­quent fiscal year. 

According to a United States Court press release, over 90% of defen­dants in fed­er­al crim­i­nal cas­es are unable to afford to hire their own coun­sel. About 60% of those cas­es are han­dled by fed­er­al defend­ers, while the remain­ing 40% are assigned to pri­vate attor­neys through the CJA. Annually, about 12,000 pri­vate attor­neys are appoint­ed through the CJA, 85% of whom are solo prac­ti­tion­ers or with small firms who will face seri­ous finan­cial hard­ship with­out being com­pen­sat­ed for their work. Ripple effects from fund­ing delays are already being seen with some attor­neys refus­ing to accept CJA appoint­ments, accord­ing to Source NM, and oth­ers request­ing addi­tion­al time for their cas­es. In New Mexico, which has seen an influx in pros­e­cu­tions as a result of arrests in the new­ly estab­lished buffer zone along the bor­der, some attor­neys have peti­tioned the court to post­pone their tri­als and remove all pend­ing dead­lines, explain­ing that ​“defen­dants are cur­rent­ly pre­vent­ed from uti­liz­ing the basic tools nec­es­sary to for­mu­late their defens­es due to fail­ures of the leg­is­la­ture to ensure appro­pri­ate nec­es­sary fund­ing to appoint­ed coun­sel nation­wide.” Characterizing the bud­get short­fall as an ​“inten­tion­al act” by Congress to ​“deprive the judi­cia­ry of nec­es­sary funds to ensure Defender Services … oper­ate in a con­sti­tu­tion­al­ly appro­pri­ate man­ner,” the motion cau­tions of a ​“dan­ger­ous com­pe­ti­tion between defen­dants’ constitutional rights.” 

During the 2013 seques­tra­tion, sim­i­lar bud­get issues affect­ed fed­er­al defend­er ser­vices, accord­ing to the United States Court Annual Report in 2013. After cut­ting the program’s bud­get by $52 mil­lion, about 400 jobs were elim­i­nat­ed dur­ing the 2013 fis­cal year and 20,600 fur­lough days were imposed. Additionally, $15.8 mil­lion in pay­ments to CJA attor­neys were deferred from September 17, 2013 through the end of the fiscal year.