This article was published by Source New Mexico. To read more visit sourcenm.org.

Private attorneys representing people who otherwise can’t afford a legal defense in federal courts in New Mexico are working for free because the public program that pays them — and private federal defenders across the country — ran out of money at the start of July. 

In interviews this week, private defense attorneys told Source NM the lack of pay is especially urgent in Southern New Mexico because of the massive volume of cases being prosecuted by the U.S. government as part of President Donald Trump’s immigration agenda, specifically the newly created military buffer zone along New Mexico’s border with Mexico.

The funding crisis has raised concerns in the federal judiciary about providing adequate and legally mandated representation to defendants who can’t afford an attorney — approximately 90% of all defendants in federal court, according to a United States Courts news release on Tuesday. Federal defender organizations handle approximately 60% of such cases, while private attorneys who agree and are qualified to serve on a state-level Criminal Justice Act panel take on the rest.

Funding for those panels, however, ran out July 3, after Congress in March froze all judicial branch funding at last year’s levels as part of its continuing budget resolution.

In New Mexico, some private defense attorneys have stopped taking cases until funding resumes, Ryan Villa, the CJA panel representative for the District of New Mexico, told Source NM.

If more lawyers start turning down CJA appointments, then it is unclear who will represent those people, Villa said.

This places at risk the “fundamental right” of a person facing criminal charges “to effective counsel regardless of the defendant’s economic status,” Judge Amy St. Eve, chair of the national Judicial Conference’s Budget Committee, said in a statement. 

St. Eve’s statement also notes that the attorneys won’t be paid until Oct. 1 “for the work they have done and for the work that we continue to ask them to do, unless the Judiciary receives supplemental funding from Congress before then.”

Cori Harbour, an El Paso-based attorney who also works as a private federal defender on the New Mexico CJA panel’s Las Cruces division, told Source she had to stop taking on new cases in the Western District of Texas, and has pivoted to find other kinds of legal work in order to pay her staff. She said next week, she will have to decide whether to continue taking cases in the District of New Mexico.

There are 73 lawyers on the Albuquerque division of the CJA panel in New Mexico, and 29 private attorneys who are on the CJA panel’s Las Cruces division, according to court records. There are approximately 12,000 CJA attorneys across the country, Villa said.

In addition to their own billing, defense attorneys also have to pay out experts such as paralegals, investigators, language interpreters, social workers, mitigation specialists and forensic psychologists.

Such experts have asked attorneys to delay their cases because they can’t sustain working trials without being paid, Villa said. Harbour confirmed her investigator has had to turn down unpaid CJA jobs and instead look for other income sources.

Moreover, the Las Cruces court has seen a surge of defendants being charged under the federal government’s new criminal trespassing laws for entering the so-called National Defense Area on New Mexico’s border.

Those additional military trespass charges come on top of the unlawful entry charges brought against migrants before the buffer zone existed, Harbour said, creating more work for the defense.

“The case numbers have been astronomical because they are prosecuting everything,” Harbour said. “There’s just no way for us to handle the number of cases that are coming in, and then to expect us to do it now without compensation is just a lot.”

Harbour said she has 71 open CJA cases, her largest caseload ever in her 20-year career. Almost all of her cases require an interpreter, usually for Spanish, she said, which is yet another expense no longer covered.