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Justice Requires an Independent Federal Public Defender

While many Americans have been absorbed in the presidential race, I have been glued to my computer watching hearings of the Judicial Conference of the United States’ Committee to Review the Criminal Justice Act (CJA) Program, which is intended to secure the right to counsel guaranteed by the Sixth Amendment for all federal criminal defendants.
Enacted by Congress in 1964, immediately following the Supreme Court’s landmark decision in Gideon v. Wainwright, the CJA provides a system for appointing and compensating lawyers to represent defendants in federal criminal proceedings who are financially unable to hire a lawyer or other defense services on their own. The CJA created offices of federal defenders whose job it is to represent those charged with a federal crime who cannot afford a lawyer. It also created a system of “panel lawyers” to provide such representation when, for example, the federal defender has a conflict of interest or when there are multiple defendants in the case. More than fifty years later, we are still struggling to deliver on Gideon’s promise. As a former deputy federal public defender, it is an issue very close to my heart.
I applaud the Judicial Conference for addressing this vital issue. Although our federal public defense system is often touted as the “gold standard” of the public defense systems, it is, unfortunately, providing inadequate representation in far too many cases. Over the past year, the committee, which has been receiving testimony and analyses from experts and legal scholars around the country, has been hearing about these inadequacies and how they must be rectified.
After analyzing all the testimony and statements presented in the hearings thus far, it is clear to me that the CJA program as a whole does not adequately protect the Sixth Amendment right to counsel and is in urgent need of reform.
There are two glaring issues plaguing the CJA program. First is a lack of adequate funding for indigent defense services. Second is the involvement of judges in the compensation and appointment of so-called panel lawyers. To ensure justice, our adversarial system requires that both sides - prosecution and defense - be represented by lawyers who have a sufficient amount of independence, resources, training, and time to devote to the case. As the Supreme Court noted in 1984, “While a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators.” Currently, however, the disparity in funding for defense counsel has created such a dynamic.
Without an adequately resourced and experienced defense lawyer, we have seen, and will continue to see, wrongful convictions - a tragedy for the innocent person who is sent to prison, for the victims who believe that the perpetrator has been punished, and for society, which imprisons the innocent person while the guilty one goes free.
The current system of compensation for CJA panel attorneys is one of the main culprits in this disparity of funding for defense counsel. CJA panel lawyers are appointed by, and at the discretion of, the federal judges before whom they appear. Attorneys from all over the country have testified that the very same judges who appoint them routinely reduce their compensation without explanation or a chance to challenge their decision. Even in jurisdictions where judges are statistically less likely to reduce expense vouchers, attorneys and administrators have acknowledged that they “self-cut” by leaving off time they spend on cases because they worry about being labeled a “high-cost” lawyer and fear not getting appointed again. Prosecutors have no such system: the U.S. Attorneys’ offices around the country represent the government and judges are not involved in their appointment or compensation.
Moreover, courts have found that the right to counsel encompasses more than just the right to a lawyer. The right to effective counsel also requires access to experts, investigators, and translators. However, CJA lawyers have repeatedly testified during the committee hearings that they do not seek expert assistance, or they use experts who charge less but are also less experienced, because they fear not receiving future appointments. In several districts, defense lawyers must appear before judges in an ex parte hearing to justify their request for expert services. Prosecutors, on the other hand, make such decisions on their own, without the need for judicial intervention or approval.
Many judges recognize these inherent conflicts and testified before the committee that they would prefer not to be in the center of the process. They recognize that, because judges are unfamiliar with the market price for defense counsel and the increasing cost of litigation, the job of reviewing vouchers for experts and setting compensation becomes almost impossible. As a result, federal defense attorneys are systematically underpaid for their work, and defendants are systematically denied access to the trial resources they need to mount an adequate defense.
The Constitution Project’s National Right to Counsel Committee has proposed a solution to this problem. Its 2009 report, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, underscored the importance of creating an independent, adequately funded National Center for Defense Services to address the lack of independence of indigent defense services and to eliminate the egregious conflict resulting from federal defense lawyers having their pay, appointment, and ability to adequately represent their clients determined by the very judges before whom they are trying a case.
Such a center, similar to one endorsed by the American Bar Association more than thirty years ago, would remove judges from this process, and ensure that federal defenders are as independent as their prosecution adversaries. It would provide badly-needed grants for training and other support services, and allocate resources and cases to federal defenders and panel lawyers in a more professional and sensible manner, equipping them with the support services and resources they need to deliver quality representation, such as access to independent experts, investigators, technology, and research capabilities.
The public defender system in state and local jurisdictions is in crisis and in many areas, in total melt-down. That does not mean, however, that the federal system is not also at risk, and we ignore the problems in that system at our peril. Anyone who analyzes the review committee’s work so far, as I have, cannot help but conclude that the CJA program is depriving federal criminal defendants of their Sixth Amendment right to a fair and adequate defense, and has done so for far too long. I am pleased that The Constitution Project will be testifying at the committee’s next hearing, on April 11 in Philadelphia. We will strongly urge the committee to recommend the reforms described above to make sure that all federal defendants who cannot afford their own lawyers receive the quality legal representation that the Constitution demands.
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