Public defenders working in the federal system representing indigent defendants aren't getting paid. The federal government ran out of money, as my colleague April Baumgarten reported recently.

That's a big problem. Every American accused of a crime has a right to counsel, and while you might think that public defenders are just for poor people, they actually represent most people accused of a crime. In North Dakota, the precentage of criminal defendants represented by a public defender is north of 80%. In the federal system, nationwide, it's around 90% Jason Tupman said on this episode of Plain Talk.

Tupman is the top federal public defender for the North Dakota and South Dakota district (full disclosure: my sister works as an investigator for Tupman's office). "There will be consequences," he said of this lack of funding. "I think they are not just short-term, either."

The federal employees in Tupman's offices cover about 2/3's of the cases in North and South Dakota, with the rest going to private sector attorneys who participate in what's called the Criminal Justice Act Panel. Right now, those panel lawyers won't be getting a check until October 1, though given the chaos in Washington D.C. right now, there's not a lot that's certain.

Tupman, and Mark Friese, a prominent defense attorney from the Vogel Law Firm who is a representative on the CJA Panel, say that lawyers are beginning to turn down these cases. That means delays in the criminal justice process for defendants, which in turn means more costs associated with things like pre-trial detention. Also, it may also mean that they're assigned by lawyers from other areas, who may struggle to provide adequate counsel, which in turn may result in more appeals and procedural delays.

We are currently having a rollicking debate about the federal debt and deficits, but delays or cuts in funding for federal public defenders could actually end up costing the taxpayers more.

Tupman points out that the work of his office isn't political. "This office and this panel has represented George Floyd protesters and they have represented January 6 defendants," he said. "This is a non-political group...who represent individuals, treat them with dignity, and do so every day pretty quietly. To not pay them for the work they've already done can be crippling. Crippling to them and crippling to our future functioning."

Friese, meanwhile, pointed out that even when the feds are paying the bills, they're far below what private sector attorneys can otherwise earn.

"A lot of your listeners are going to say, $175 an hour, that's crazy," he said referring to the rate at which panel attorneys are compensated. "That's less than half the market rate. That's less than half the prevailing rate if you were to come to me in my private practice to hire me for representation."

"When I take my car in the mechanic shop, the prevailing rate in in North Dakota is 150 bucks an hour," he continued. "So, we're paid $25 more an hour than a mechanic shop, essentially."

Also on this episode, co-host Chad Oban and I talk about my criticism of the Turtle Mountain Band of Chippewa's lawsuit over redistricting (Chad thinks I'm full of it) and we also give some praise to the North Dakota Chamber of Commerce for their efforts to promote civics.

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