Federal Public Defense

On the surface the federal public defense system is an excellent example of what a healthy, vibrant public defense system should look like. Operating with a mix of institutional defenders and private counsel, a reliable funding stream, a strong infrastructure for training and support services, reasonable caseloads, and respectable rates of compensation for counsel, the federal system is often held out as the gold standard. However during a federal budget crisis, many of the foundational flaws of this lauded system were revealed. 

Federal Indigent Defense 2015: The Independence ImperativeOn the heels of the 2013 federal budget crisis, NACDL convened its Task Force on Federal Indigent Defense to examine the impact of sequestration, as well as  the overall structure of the federal public defense system, the Task Force conducted an extensive review of the system, its development, and current operations. Over the course of 18 months, 130 people representing every judicial circuit and 49 states were interviewed, and countless reports, memoranda, and correspondence was reviewed. 

The Report, Federal Indigent Defense 2015: The Independence Imperative,  documents the history of the federal public defense system, which from its very founding was meant to be wholly independent of judicial control. It exposes the depth and breath of judicial entanglement with the defense function, from controlling budget requests to Congress to selecting the leaders of public defender offices to deciding how much money individual court-appointed attorneys will be paid, the judiciary exerts outsized power over the nation's public defense system. The results of the judiciary's pervasive control can be found throughout the country and throughout the court process. 

Read the Report Review the Documents


NACDL's Seven Fundamentals of a Robust Federal Indigent Defense System

Upon the completion of its work, NACDL's Task Force identified 7 Fundamentals of a Robust Federal Indigent Defense System:

  1. Control over federal indigent defense services must be insulated from judicial interference;
  2. The federal indigent defense system must be adequately funded;
  3. Indigent defense counsel must have the requisite expertise to provide representation consistent with the best practices in the legal profession;
  4. Training for indigent defense counsel must be comprehensive, ongoing, and readily available;
  5. Decision regarding vouchers must be made promptly by an entity outside of judicial control;
  6. The federal indigent defense system must include greater transparency; and
  7. A comprehensive, independent review of the CJA program must address the serious concerns discussed in the report.

But before the report was released, the Judicial Conference announced the formation of an Ad Hoc Committee to conduct a "comprehensive and impartial review of the Criminal Justice Act program."{1}{1} CJA Study Flyer.


Ad Hoc Committee to Review the Criminal Justice Act Report

For 2 1/2 years a 12 person committee, Chaired by Judge Kathleen Cardone (W.D. TX), conducted public hearings and reviewed countless documents. Among the 229 witnesses who testified before the Committee was NACDL's Past-President, E.G. Gerry Morris. Read Morris' Testimony.

In the Fall 2018, after calls from NACDL and others for the Committee's work to be made public, the Committee's Report was released. Its unanimous recommendation: that Congress create an independent Federal Defender Commission outside the oversight of the Judicial Conference.

CJA Reivew Committee Report CJA Review Committee Materials

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Recognizing the road to independence is complex, the Committee made 39 interim recommendations; the Judicial Conference approved 19 urging its Fall 2018 meeting. Among those is a more uniform standard for judicial review of panel attorney vouchers. 

NACDL continues to monitor the efforts to bring about systemic changes to the federal public defense system.

Judicial Conference Takes Steps Towards Greater Independence for Federal Public Defender System, Nation's Criminal Defense Bar Encouraged by Progress


NACDL Resolution Calling for Independent Federal Public Defense


Inside NACDL: A Fundamental Flaw in the Federal Indigent Defense System: Lack of Independence From Judicial Control, The Champion Magazine, by Norman L. Reimer, August 2015. Read More. 


Carrie Johnson, NPR Morning Edition: Report: Judges Have Too Much Control in Public Defense System, Sept. 9, 2015


NACDL News on Federal Public Defense

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