The U.S. Senate and House of Representatives have advanced spending bills that would cut millions of dollars from the budget of Defender Services, which represents poor defendants accused of federal offenses.

Earlier this week, Reuters and NPR reported that the $1.5 billion budget the federal public defenders have requested has been slashed in a pair of recent appropriations bills. The Republican-controlled House has recommended $1.41 billion, while the Democratic-controlled Senate has countered with $1.38 billion.

The reduction appears to stem from a pandemic-era savings of $110 million the public defenders applied to their current budget, which permitted Congress to allocate a lesser amount of new money. However, congressional proposals for the upcoming fiscal year would adhere to the lower amount, raising the possibility of cuts, furloughs and delays for public defenders and the clients they represent.

No members of Colorado’s congressional delegation sit on the appropriations committees. Colorado Politics sent questions about the cuts to some congressional offices, but did not receive a response.

Virginia L. Grady, who heads the federal public defender’s office for Colorado and Wyoming, spoke to Colorado Politics about the effect that Congress’ spending cuts, if enacted, would have on the administration of justice and the provision of criminal defense.

FAST FACTS:

• Virginia L. Grady has been the federal public defender for Colorado and Wyoming since 2013, having first joined the office in 1990.
• Congress created the public defense system and private “panel attorneys,” who represent indigent defendants when the public defender has a conflict, after the U.S. Supreme Court’s 1963 decision in Gideon v. Wainwright.
• There are 4,100 employees in the federal public defense system.
• Defender Services has imposed a hiring freeze in response to Congress’ potential spending cuts and estimates it would need to cut 500 positions.

Colorado Politics: When did you find out that the House and Senate were proposing to cut tens of millions of dollars from the public defenders’ budget?

Virginia Grady: We did not find out until the House mark – that’s what they call it – the publishing of the House mark was in late June. That was the first one. The same process occurs in Senate Appropriations Committee, and that happened last Thursday.

The Senate mark was even worse than the House mark. No idea that this was coming until we saw the marks.

CP: I’m assuming when the House released its proposal, you weren’t terribly surprised because it’s a Republican-controlled House. They are interested in cutting spending. But in a Democratic Senate, you would expect something different. Is that accurate?

VG: We’re not politicians – it should be bipartisan. Traditionally, the House mark and the Senate mark aren’t that far apart. So the two together – to say that we were blindsided does not describe the depth of our shock.

CP: Reportedly, this cut is a product of the pandemic and the carryover of about $110 million in savings. So, the budget you’re currently in was set at a lower rate, but you had the carryover.

VG: The House started with looking at what was the appropriation. They started with the 2023 budget request. Defender Services had money from previous appropriations that were “in the bank.”

So, when the House looked at our budget submission for 2024, they simply looked at the appropriation, which was $1.38 billion, knowing – I don’t know if they looked or not – that only represented a fraction of our need. It’s about 93%. But it’s a lot of money.

The next thing that happens is last week, the Senate Appropriations Committee takes it from there and their group looked at our agencies. I don’t know what they did. But that’s how we ended up down $70 million.

CP: Have you talked since last week with any members of Colorado’s congressional delegation?

VG: Yes, I have.

CP: What has been the response?

VG: Concerned, let me say that. Very concerned. Other defenders have contacted other senators. We’re trying to conduct outreach as much as possible to educate members of Congress in these appropriations committees about the incredible damage they’re doing to our organization.

CP: Is the concern bipartisan in Colorado?

VG: I don’t know the answer to that. We need as many advocates as we can get because the opportunity to fix this error is, as I understand it, pretty limited. It has to be done now.

CP: Let’s say the more restrictive amount, the Senate’s amount, takes effect. What will that mean for your office’s budget?

VG: I don’t know yet. We’re already getting hurt. And everyone is. Because as soon as this news came out, Defender Services declared a hiring freeze. Basically instructed we could not hire. We all have vacancies, but we could not fill them.

We were just studied by the Administrative Office of the U.S. Courts. There was a study done to evaluate our staffing needs, and that revealed we were already operating at a pretty big deficit of staff. We haven’t begun to add those staff. These budgets just obliterated these additional FTE (full-time equivalent workers).

Do three vacancies that I can’t fill hurt us? Yes, they do. So, we are already underwater. Our budget consists of around 80-82% salary and benefits. Add on rent – because we’re all paying rent for our space – that takes you up to almost 90% of money that’s already committed. It’s not as though, “Oh, we can’t buy furniture.”

We have clients in anywhere from 10-13 different jails in the state of Colorado. And in Wyoming, the vast majority of detained clients are in Scottsbluff, Neb. So, just to see our clients, to take care of them, is a lot of time on the road. I’ve lost count, but a considerable number of our clients and (private, government-paid) panel clients are in Pahrump, Nev. It’s on the edge of Death Valley. So, we have to go there and see our clients. 

I say all of that because understaffing is a factor. You can never have enough people to chase all these cases. We used our carryover money to reduce the amount of new money Congress had to give us. Now, this year, in this budget we’re being penalized for it.

CP: In the public defenders’ budget request, there are specific reasons for why things are costlier now: increased caseloads since the COVID-19 pandemic, the prosecutions of Jan. 6 rioters at the U.S. Capitol, and the Supreme Court’s McGirt v. Oklahoma decision redirecting certain criminal cases to federal courts. Do any of those affect your office?

VG: Yes. We didn’t take the Jan. 6 cases, but there were a lot of offices that did. The coverage of those cases – it requires travel to D.C. There’s all kinds of other work and expenses that go into that representation. This is going to gut our ability to cover those cases.

Same for the McGirt cases. That’s a spigot of violent crime and other, lower-level cases that come from the native lands and we’re not going to be able to help out.

CP: What other impacts would this level of budgeting have for your office and clients?

VG: I think it’s going to result in more clients being detained for longer periods of time because we’re not going to have enough staff to move cases along. It’s just going to clog the dockets. And the dockets already run slowly in a lot of jurisdictions. We’re not going to have enough people to work on those cases.

I speak not just for us but the panel attorneys, because they’re not in a position to pick up the slack for us. 

We’re a product of a promise in the Constitution that all persons who are accused of crimes are entitled to counsel. Our cases cover the gamut of subjects. It’s not just guns and drugs. We have cases that involve complex accusations of fraud, murder cases, we have a lot of cases deeply rooted in serious mental health problems. All of this requires us to retain experts to help advise us on the content of what we’re reading, to help us navigate – by way of example, what’s wrong with our client? What mental health condition is our client suffering from?

The travel, the cost of investigating these cases, the cost of bringing in experts – our clients come with a bundle of other issues that we have to identify and navigate. Not just to help the client through the process but to help the court understand who they are.

All the time and money to do that comes out of this very small portion of our budget.

Defenders have been working on this 24/7 to figure out what we have to do. Now we’re just scrambling.