Can I Use a Public Defender for Federal Charges
Yes, you have a constitutional right to a public defender for federal charges if you cannot afford an attorney. What the Constitution doesn't guarantee is that your lawyer will have enough time to actually defend you. Federal public defenders are working with 25% less time per case than necessary according to a 2025 RAND Corporation study, and the CJA panel attorneys who handle 40% of federal cases haven't been paid since June 2025.
Welcome to Spodek Law Group. We handle federal criminal defense in New York and nationwide. This article explains exactly how the federal public defender system works, what outcomes you can realistically expect, and why the current funding crisis may be affecting your case right now.
The Sixth Amendment says you have the right to counsel. Johnson v. Zerbst in 1938 made that right absolute for federal cases - if you cant afford a lawyer, the government must provide one. But theres a difference between having a lawyer and having a lawyer who has time to work on your case.
Two Systems, One Constitutional Right
Federal indigent defense operates through two seperate systems. You dont get to pick which one you're assigned to.
Federal Public Defender Offices are staffed by federal government employees. There are 82 authorized federal defender organizations employing over 3,700 lawyers, investigators, paralegals, and support staff. They serve 92 of the 94 federal judicial districts. These lawyers specialize in federal criminal defense - they appear before the same judges 100+ times per year, they know which judges respond to what arguments, they know the tendancies of local prosecutors.
CJA Panel Attorneys are private lawyers who take court appointments. They maintain there own practices on the side. When the court appoints them, they get paid $177 per hour for non-capital cases, $226 per hour for capital cases. Compare that to private federal defense rates of $500 to $1,500 per hour. Your appointed attorney is taking a significant pay cut to defend you.
Nationwide, federal defenders recieve approximately 60% of appointments. CJA panel attorneys handle the other 40%. The assignment usually depends on availability and conflicts - if the public defender's office already represents a co-defendant, you go to a panel attorney.
Heres the thing though. Same constitutional right. Different outcomes.
The U.S. Sentencing Commission's 2025 reanalysis shows federal public defenders achieve sentences that are 4.64% shorter on average. CJA panel attorneys achieve sentences that are 4% longer. That's roughly an 8-9% swing depending on which system your assigned to. On a 10-year sentence, 4.64% is more than 5 months. On a 20-year sentence, its nearly a full year.
Why the difference? Federal public defenders appear before the same judges constantly. They know that Judge Smith gives below-guidelines sentences 60% of the time. They know Judge Torres responds to family hardship arguments. That institutional knowlege - the kind that comes from handling hundreds of cases in the same building - isn't something you can buy.
The Qualification Question
You dont have to be homeless to qualify for court-appointed counsel. Most jurisdictions use 125-200% of the federal poverty level as a baseline, but courts look at the complete financial picture.
The court will consider:
- Your income from all sources
- Your debts and monthly expenses
- Number of dependents
- Assets including property, vehicles, savings
- Whether you've been able to make bail
- Cost of private representation in that district
A business owner with $100,000 in revenue might still qualify if they have $90,000 in debts, three kids, and a pending divorce. A single person making $40,000 might not qualify if they have minimal expenses and $50,000 in savings.
The process works like this: After your initial appearance, you fill out a financial affidavit. The magistrate judge reviews it and makes a determination. If your approved, the court appoints counsel - either from the Federal Public Defender's office or the CJA panel.
Some people fall into what defense lawyers call the "gap" - too much income to qualify for appointed counsel, not enough to afford private representation at $500+ per hour for a case that might require 200+ hours of work. If thats you, you should still apply. Courts have discretion, and judges understand that a $100,000 federal criminal defense bill would bankrupt most families.
The Funding Crisis Nobody's Talking About
What I'm about to tell you isnt public knowledge. Most people charged with federal crimes have no idea this is happening.
CJA panel attorneys - the private lawyers who handle 40% of federal indigent defense cases - haven't been paid since June 2025. The Defender Services program ran $130 million short of what the judiciary requested. The money ran out on July 3rd.
The consequences are real and immediate:
- 80 of 100 CJA lawyers in the Central District of California have stopped taking new cases
- One Los Angeles CJA attorney has a caseload so full he's scheduling trials for 2027 - while his clients wait in jail
- Attorneys across the country have dipped into retirement savings or started driving Uber to survive
- One attorney couldn't even communicate with his Spanish-speaking clients because interpreters weren't being paid either
And this isn't over. The spending bill pending for fiscal year 2026 is still $196 million short. Based on current projections, the program will run out of money again in June.
What does this mean for you?
If your assigned a CJA panel attorney right now, your lawyer might litterally be unable to afford to work on your case. There not getting paid. There other clients - the paying ones - need attention too. Your constitutional right to counsel doesn't pay their mortgage.
This is the system working as designed. Federal judges decide what investigative work is "reasonable" for your defense. The same person who will sentence you decides how much preparation your lawyer gets funded for. That's not a bug. That's the architecture.
What Matters When Your Future Is on the Line
Despite carrying impossible caseloads - remember, 25% less time then necessary according to RAND - federal public defenders still outperform private attorneys in most outcome studies.
A Philadelphia study found that compared to appointed private counsel, public defenders:
- Reduced murder conviction rates by 19%
- Reduced the probability of a life sentence by 62%
- Reduced overall expected time served in prison by 24%
Defendants with appointed private counsel were 5.2% more likely to be convicted and received sentences that were 3.6 months longer.
The federal conviction rate is over 90% regardless of attorney type. That number stays the same wheather you have a public defender, a CJA panel attorney, or a million-dollar defense team. What changes is the sentence you serve when your convicted.
Federal public defenders know how to lose small so you don't loose everything. They know which charges the government might dismiss in exchange for a plea on others. They know which judges are sympathetic to which arguments. They've been doing this specific job, in this specific court, for years.
Thats not to say private counsel can't be excellent. Many are. But the assumption that "free" means "worse" doesn't hold up in the data.
If your facing federal charges and cant afford private counsel, you have a constitutional right to appointed representation. Period. Johnson v. Zerbst established this in 1938. Its not optional for the government.
The question isn't wheather you can get a lawyer. The question is what kind of representation you'll actually receive given the current state of the system.
Apply for appointed counsel. Fill out the financial affidavit honestly and completely. If your approved, you'll get either a federal public defender or a CJA panel attorney. You dont control which one.
If your assigned a federal public defender, understand that you're getting a specialized attorney who knows federal practice intimately, who has relationships with prosecutors and judges built over hundreds of cases, and who - despite being overworked - statistically achieves better outcomes than most alternatives.
If your assigned a CJA panel attorney, understand that your lawyer might be in financial crisis right now. They might be taking out loans to survive while waiting for the government to pay them. That doesn't mean they wont fight for you. Many panel attorneys are excellent. But the system is strained in ways that effect your case.
Todd Spodek at Spodek Law Group has handled federal cases for years. We understand how both systems work. If you can't afford private counsel, apply for appointed representation - it's your constitutional right. If you fall into the gap between qualifying for appointed counsel and affording private representation, call us at 212-300-5196. We offer consultations to help you understand your options.
The Sixth Amendment promises you a lawyer. Were here to help you navigate what that promise actually means in 2025.
