Washington, DC (Sept. 13, 2018) – Today, the Judicial Conference of the United States, the national policymaking body for the federal court system, publicly released the 2017 Report of the Ad Hoc Committee to Review the Criminal Justice Act (CJA Review Committee) and issued a statement approving 19 of the Committee’s 35 Interim Recommendations (See CJA Review Committee Report at XXXVI to XL), importantly stating that “the Defender Services Office will be made an independent office within the Administrative Office, reporting at the executive level.” This re-elevation of the Defender Services Office reverses a step that was taken more than five years ago and was noted as problematic development in the 2015 study issued by the National Association of Criminal Defense Lawyers (NACDL), linked and described below.
The CJA Review Committee was announced shortly before the September 2015 release of NACDL’s study: Federal Indigent Defense 2015: The Independence Imperative. The CJA Review Committee, according to the CJA Study flyer, was "[a]ppointed by Chief Justice John G. Roberts, Jr., …[to] conduct a comprehensive and impartial review of the Criminal Justice Act program, which secures the Sixth Amendment's right to counsel for federal criminal defendants." As part of its study, the CJA Review Committee held public hearings across the nation, taking testimony from leading stakeholders in the field, including then-NACDL President E.G. “Gerry” Morris. The Committee first delivered its report to Director James C. Duff at the Administrative Office of the U.S. Courts (AO) in November 2017.
“The reforms endorsed by the Judicial Conference, as well as those that remain under consideration, are of critical importance for many reasons, not the least of which is that the Federal Public Defense system has long served as a model for states and localities which, in many instances, have woefully under-resourced and overburdened public defense delivery systems,” said NACDL President Drew Findling. The CJA Review Committee Report, consistent with the position of NACDL, calls for the defense function to operate independent of any oversight by the Judicial Conference, with the 35 Interim Recommendations serving largely as a bridge between the current system and the Committee’s proposed independent Federal Defender Commission. In discussing the need for meaningful and real independence for the defense function, Findling explained, “It is incredibly important to get it right. NACDL will continue to be vigilant in its efforts to ensure the promise of the Constitution’s Sixth Amendment right to counsel as well as an independent and fully-resourced defense function in all of the nation’s public defense delivery systems.”
“NACDL is gratified that the research and principles set forth in its 2015 report, as well as NACDL’s testimony before the committee, are acknowledged and reflected throughout the CJA Review Committee Report,” said NACDL Director of Public Defense Reform and Training Bonnie Hoffman, who has led NACDL’s Task Force on Federal Indigent Defense. “NACDL is heartened by the efforts being made by the Judicial Conference to remedy some of the issues NACDL’s report highlighted relating to judicial review of panel attorney vouchers and is hopeful that the remaining recommendations of the Review Committee Report will be implemented in the coming years so that the federal public defense system will move closer to fulfilling the promise of the Sixth Amendment and assure that each person accused of a crime is represented by a zealous, trained, and well-resourced attorney.”
NACDL’s Task Force on Federal Indigent Defense was established in the fall of 2013 during the budget crisis referred to as sequestration. From the severe funding cuts and resulting systemic damage during sequestration to the AO's demotion of the Defender Services Office from a "distinct high-level office" to its placement as one of the judiciary's many "Program Services," NACDL’s report documents the deficiencies of the current system and clearly calls for the independence of the defense function in the federal criminal justice system.
NACDL’s 2015 report also focuses the day-to-day adverse consequences of a system that is wholly at odds with the very first principle of the American Bar Association's Ten Principles of a Public Defense Delivery System — "The public defense function, including the selection, funding, and payment of defense counsel, is independent." The report details that many panel lawyers are forced to endure long delays to receive payment for their services and often face arbitrary cuts to their fees at the hands of the same judicial officers who appoint them. The report also explores concerns regarding the outsized role the judiciary plays in the selection and retention of both panel lawyers and public defenders. The report highlighted these and other issues in its Seven Principles of a Robust Federal Indigent Defense System:
- Control over federal indigent defense services must be insulated from judicial interference.
- The federal indigent defense system must be adequately funded.
- Indigent defense counsel must have the requisite expertise to provide representation consistent with the best practices in the legal profession.
- Training for indigent defense counsel must be comprehensive, ongoing, and readily available.
- Decisions regarding vouchers (i.e., payment to panel attorneys) must be made promptly by an entity outside of judicial control.
- The federal indigent defense system must include greater transparency.
- A comprehensive, independent review of the CJA program must address the serious concerns discussed in this report.
The 2017 Report of the Ad Hoc Committee to Review the Criminal Justice Act, as well as the Sept. 13, 2018, statement from the Judicial Conference, are available at http://www.uscourts.gov/news/2018/09/13/judicial-conference-addresses-workplace-conduct-and-criminal-justice-act-issues.
NACDL’s full report, which includes an executive summary, as well as many of the documents to which the report cites, is available at www.nacdl.org/federalindigentdefense2015.
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.