The lights are still on inside federal courthouses—but for thousands of lawyers defending those who cannot afford counsel, the paychecks have stopped. As the U.S. government shutdown drags into its 34th day, it has quietly gutted the system meant to uphold one of America’s most basic constitutional promises: the right to a fair defense.
Roughly 12,000 private attorneys across the nation serve on court-managed panels that represent indigent defendants. But the pool of money that pays them—funds from the Criminal Justice Act—dried up in July. With Congress paralyzed and no new appropriations in sight, many of these attorneys are working for free, and some have begun walking away from new cases entirely.
They represent around 40% of federal defendants who cannot afford counsel; the rest rely on full-time public defenders who, since mid-October, have also been showing up to work without pay. Yet the courts remain open, processing criminal cases with dwindling defense resources and rising desperation.
The situation is not merely an administrative snag—it’s a direct hit to the Sixth Amendment. Lawyers have warned in filings that their unpaid labor erodes the right to effective assistance of counsel, echoing the landmark Gideon v. Wainwright ruling that established this very guarantee in 1963.
In one California case, a defense attorney argued that forcing prosecutions to proceed without compensation for legal counsel “renders Gideon a hollow promise.” Judges, however, have thus far refused to dismiss cases over funding delays. One federal judge called such a remedy “extreme,” even as he postponed trials because defendants could not afford expert witnesses or forensic specialists—also funded through the same depleted pool.
The crisis is particularly crushing for sole practitioners and small firms, who make up nearly 85% of those serving on these panels. “Predictability of income is everything,” one federal defender said. “If they can’t count on payment, they’ll have to walk away—and they will.”
The math tells its own grim story: $175 an hour for most federal work, $223 in death penalty cases. Far below private market rates, and now—no payment at all. In Los Angeles, the usual 100-lawyer roster of court-appointed defenders has withered to fewer than 20. In San Diego, the list is down by nearly a third. In North Carolina, small firms are bowing out as savings dry up.
“You can’t have a criminal trial without defense attorneys showing up,” said one frustrated lawyer. “They want to prosecute people—but they refuse to fund the other side of the scale.”
For now, the machinery of justice grinds forward—thinly staffed, underpaid, and strained to breaking. But beneath the marble facades of America’s courthouses, the constitutional promise of fair representation is flickering dangerously close to dark.
