Mr. Chairman and Members of the Subcommittee:
The National Association of Criminal Defense Lawyers (NACDL),(1) appreciates this
opportunity to offer our views concerning the Defender Services Appropriation for FY 1999.
Introduction -- Curbing Prosecutorial Abuse
This appropriation, a minuscule portion of the budget over which this Subcommittee has
jurisdiction, must be considered within the broader context of a growing crisis of confidence in the
fundamental fairness of the federal criminal justice system. Currently pending before the House
Judiciary Committee is H.R. 3396, authored by distinguished Representative Joseph M. McDade.(2)
A far-reaching reform bill, the "Citizens Protection Act of 1998" would go far toward curbing "the
unfettered power of federal prosecutors and the dangers posed by unethical, abusive and improper
conduct by U.S. Department of Justice employees."(3) So too will your own panel's efforts to better
"level the playing field" through a more realistic appropriation going to Defender Services.
The danger unchecked federal prosecutorial power poses to fundamental American values
has been long been recognized.(4) In a recent Wall Street Journal article, Arnold I. Burns, Deputy
Attorney General in the Reagan administration, details recent abuses and declares: "It is time for a
sober reassessment of the power we have concentrated in the hands of prosecutors and the alarming
absence of effective checks and balances to prevent the widespread abuse of that power."(5)
Nationally-syndicated columnist Paul Craig Roberts, appearing locally in the Washington
Times, also agrees with Rep. McDade's warning that "[a] win-at-all-costs attitude blinds [federal
prosecutors] into suppressing exculpatory evidence, falsifying evidence, misleading grand juries, and
other misconduct which most of the time goes unpunished."(6) Mr. Roberts ties the upswing in
prosecutorial misconduct to increases in appropriations to the Department of Justice:
A former assistant U.S. attorney described to me the extraordinary decline in
prosecutorial ethics he has witnessed during his career. He laid the blame on the war
on drugs, which resulted in the almost overnight expansion of the number ofassistant
U.S. attorneys from 1,200 to more than 7,000. There were not enough seasoned
people to fill the posts, and the influx overwhelmed the ability of the Justice
Department to inculcate a respect for justice and the majesty of law as opposed to a
win-at-all costs attitude by the younger law school graduates.
As a result, Mr. Roberts believes "that increasingly many prosecutors are a bigger threat to the public
than are criminals," and urges passsage of the Citizens Protection Act.(7)
Wholly apart from substantive reform legislation such as H.R. 3396, this Subcommittee has
the duty to ensure adequate funding for the court-appointed criminal defense lawyers who represent
the targets of federal prosecutions. Theoretically, our age-old adversary system of justice includes,
by wise design, built-in checks and balances including the defense attorney's role as society's
watchdog. But with federal criminal caseloads swelling to numbers not seen since Prohibition,(8) and
with 85% of the defendants too poor to hire their own attorneys,(9) that function has been severely
compromised by many years of inadequate funding.
In particular, the private attorneys called upon to represent over 40% of the court-appointed
cases(10) have been denied cost-of-living increases added to the Criminal Justice Act in 1986. And
the private attorneys in 77 of the 94 federal districts have been denied the basic rate increases
Congress included in 1986 -- and the Judicial Conference subsequently approved -- due to
cancellation language in Reports of the Appropriation Committees. It is essential that such Report
language be omitted henceforth, and that the Defender Services Appropriation be adequately funded
to make the oversight theory of the adversary system a reality.
We believe it is essential to recognize the defense function as an integral part of America's
criminal justice system if it is to ensure the Constitution's guarantee of fairness and due process to
persons accused. To preserve and protect the integrity of that system, we strongly urge Congress to
appropriate $450,000,000 for Defender Services -- an amount necessary to begin the recovery from
too many years of inadequate funding.
Funding the Constitutional Mandate
The Defender Services Appropriation funds the federal government's Sixth Amendment
obligation to provide counsel to represent defendants unable to hire their own attorney.(11) In addition,
the appropriation enables the government to fulfill its Fifth Amendment duty to provide such
defendants with the "basic tools,"(12) and the "raw materials"(13) necessary to contest the prosecution's
case within our country's adversary system of justice. These services are mandated by the United
States Constitution; they are not "discretionary."
Five years ago, the Judicial Conference of the United States reported to Congress the results
of its extensive review of the Criminal Justice Act (CJA):
There is no question that the single most important problem to confront the CJA
program in recent years is that sufficient funding has not been appropriated to meet
the increasing costs of providing the Constitutionally mandated services that the
program was created to provide.(14)
Years of insufficient funding have resulted in federal criminal justice system with a number of
shortcomings,(15) including:
- Failure to fund federal defender organizations in all districts;
- Failure to fund cost-effective death penalty representation;
- Unreasonably low compensation for CJA "panel" attorneys; and
- Inadequate qualification standards for panel attorneys.
NACDL strongly agrees with those findings of the Judicial Conference Report. Without
adequate -- and long overdue -- Defender Services funding, the constitutional mandates of Due
Process and Effective Assistance of Counsel cannot be fulfilled.
Public Defenders
NACDL agrees with the Judicial Conference that each judicial district should have an
adequately funded federal defender organization (Federal Defender or non-profit Community
Defender).(16) Defender offices provide consistently high quality representation because they
specialize in federal criminal law, receive regular training through the Administrative Office and the
Federal Judicial Center, and maintain ongoing professional relationships with the court and the other
agencies involved in the criminal justice system. In many districts, defenders also provide training,
legal advice, and administrative support to CJA panel attorneys.
Congress should appropriate funds sufficient to open defender offices in the districts now
without such offices; to enable existing offices to continue to keep up with the caseloads added by
accelerating law enforcement and prosecution budgets; and to accommodate the increase in
complexity driven by recent and expected substantive criminal legislation.
Post-Conviction Defender Organizations
The poor quality of much of America's death penalty representation is a well-documented
national disgrace and international embarrassment.(17) Exacerbating that crisis, Congress, in 1996,
excluded funding for the Post-Conviction Defender Organizations (PCDOs) non-profit community
defender organizations which served 20 of the 38 death penalty states (50 federal judicial districts).
That precipitous act, together with the accelerated scheduling mandated by the Antiterrorism and
Effective Death Penalty Act of 1996, leaves hundreds of death row inmates without counsel, greatly
increases the cost of representation for the rest, and has contributed to delay in the processing of
capital cases.(18) The Subcommittee should recommend retraction of that funding prohibition for
fiscal year 1999.
Established as a cost-effective means of providing counsel, PCDOs specialized in state and
federal death penalty representation -- the law's most complex, burdensome and emotionally taxing
specialty. In addition to direct representation in some cases, PCDOs performed a number of
functions which help to ensure that fair and complete capital habeas corpus petitions were promptly
filed and competently processed by trained counsel. Those organizations assisted the courts by
recruiting counsel willing and able to provide representation in such complicated and demanding
cases, thus relieving the courts of the need to perform this difficult and often time-consuming task.
In many states, PCDO assistance enabled private attorneys to provide representation pro bono --
without charge to the government. And where pro bono attorneys were not able to satisfy the need
for counsel services, PCDO staff attorneys provided cost-effective representation in these most
critical cases. Finally, where a PCDO did not have funds to hire enough staff to represent all of a
state's death row population, the PCDO provided support services that greatly reduced the cost of
assigning private attorneys.
In short, by providing competent, well-trained counsel, PCDOs reduced delay and, ultimately,
the cost of processing capital cases in accordance with the constitutional requirements and
procedures established by the Supreme Court. As the Judicial Conference Report put it:
The Death Penalty Resource Centers have provided invaluable services in an
appropriate and cost effective manner. They have facilitated the appointment of
competent attorneys in capital cases and have brought a higher quality of
representation to these cases. They have, moreover, streamlined the capital litigation
process by expediting cases and avoiding costly repetitive legal proceedings. The
resource centers demonstrate how the current flexible structure of the CJA program
has allowed for the development of innovative uses of limited resources that facilitate
the attorneys working within the program in delivering the kind of representation
required to ensure the continued vitality of the Sixth Amendment in even the most
complex and demanding cases.(19)
Funding for PCDOs came from the Defender Services Appropriation and from non-CJA
(state or private) resources sufficient to support the PCDO's work related to state court proceedings.
The federal component of that funding should be restored in order to fill the growing capital caseload
needs, consistent with legislative demands for more federal capital prosecutions and for faster
processing of capital habeas cases.
CJA Panel Attorney Compensation
1986 amendments to the CJA authorized the Judicial Conference to adjust the 1984 panel
attorney hourly rates, up to $75 per hour:
Any attorney appointed . . . shall be compensated at a rate not exceeding $60 per hour
for time expended in court . . . and $40 per hour for time expended out of court,
unless the Judicial Conference determines that a higher rate of not in excess of $75
per hour is justified for a circuit or for particular districts within a circuit. . . . The
Judicial Conference shall develop guidelines for determining the maximum hourly
rates for each circuit in accordance with the preceding sentence, with variations by
district, where appropriate, taking into account such factors as the minimum range
of the prevailing hourly rates for qualified attorneys in the district in which the
representation is provided and the recommendations of the judicial councils of the
circuits.
That adjustment mechanism -- now 12 years old -- replaced the procedure adopted by
Congress in 1970 authorizing hourly rate adjustments "not to exceed the minimum hourly scale
established by a bar association for similar services rendered in the district."
This goal was subsequently frustrated by the abolishment of minimum bar fee
schedules following the decision of the Supreme Court in Goldfarb v. Virginia State
Bar, 421 U.S. 773 (1975), which held that a minimum fee schedule promulgated and
enforced by a bar association constitutes unlawful price-fixing in violation of the
Sherman Act. The Goldfarb decision thus resulted in a collateral deactivation of the
adjustment authority conferred by Congress in the Circuit Councils. . . . While the
CJA Revision of 1984 removed the 1970 language authorizing judicial councils to
set alternate hourly rates, it made no provision to replace this mechanism for
affording flexibility to the CJA compensation scheme.(20)
The 1970 mechanism Congress revised in 1986 was intended to ensure that panel payments
are "neither a bonanza for some lawyers to get more than the going rate in that town, nor an empty
shell which will not be used because the rates are below the going charge in those towns. . . . [A]nd
it is hoped it will reflect what the private practitioner charges in those jurisdictions." United States
v. Mills, 713 F.2d 1249, at 1259, 1261 (7th Cir. 1983) (Swygert, J., dissenting, quoting Representative
Abner Mikva).(21)
Despite that legislative intention to adjust the rates to avoid impoverishing panel attorneys
-- and despite the fact that overhead costs have risen to exceed the base rates established 14 years
ago -- except for a token $5 raise in January, 1996, the Judicial Conference has postponed
implementing higher rates in all but the first 16 districts to be approved, in 1988.(22)
Seventy-five dollar rates (generally less than half the market rate, but more than the average
cost of overhead) have been approved -- but postponed for lack of funding -- for the remaining
judicial districts:
- In 1990, the $75 rate was approved for all the districts in the Seventh Circuit (Wisconsin,
Illinois & Indiana) and extended to entire districts where previously limited to specific court
locations.(23) Due to inadequate funding, those approved rates have not been implemented.
- In 1991, $75 per hour was approved for the Southern District of Alabama, Arizona,
Connecticut, Florida, the Northern District of Georgia, Guam, Idaho, Kentucky, Louisiana,
Maryland, Massachusetts, the Western District of Michigan, Mississippi, Missouri, Nevada,
the Western District of North Carolina, Ohio, Oregon, the Middle & Western Districts of
Pennsylvania, South Carolina, Tennessee, Texas, the Western District of Virginia and West
Virginia.(24) Due to inadequate funding, those approved rates have not been implemented.
- The $75 rate was approved in 1992 for the Northern & Middle Districts of Alabama, the
Eastern District of Arkansas, Colorado, Delaware, the Middle & Southern Districts of
Georgia, Iowa, Kansas, Minnesota, Montana, New Hampshire, the Western District of New
York, the Eastern & Middle Districts of North Carolina, North Dakota, Northern Mariana
Islands, Oklahoma, the Eastern District of Pennsylvania, Puerto Rico, Utah, Vermont, Virgin
Islands, the Eastern District of Washington, Wyoming, and Hawaii.(25) Due to inadequate
funding, those approved rates have not been implemented.
- And in 1995 the $75 rate was approved for the Western District of Arkansas, Maine,
Nebraska, South Dakota, and the Eastern District of Virginia.(26) Due to inadequate funding,
those approved rates have not been implemented.
Except for the token $5 increase to $45 per hour for work out-of-court (generally two-thirds
of the average billing) and $65 for work in court, the rates established after 1988 for those 77
districts have been repeatedly postponed in compliance with Appropriations Committee Report
language.(27) However, the cost of maintaining a law practice has not been postponed, but has steadily
increased.
In the District of South Dakota, one of the least expensive locations, surveys conducted by
the Defender Services Division show that the average overhead cost of a law office in 1994 was $38
per hour.(28) In most locations, the costs are notably higher. Average law office overhead in New
Hampshire, for example, was $53 per hour back in 1992.(29) In Vermont, the overhead cost was $47
per hour in 1993.(30) A 1994 survey by the Tennessee Bar Association showed the average cost of
office overhead of $46.81 per billable hour.(31) In Texas, the average office overhead back in 1991
was $64.25 per hour.(32) In Colorado, in 1992, $46 per hour.(33) In Kentucky, in 1991, $37 per hour.(34)
In South Carolina, in 1991, $50 per hour.(35) In Arkansas, $47 per hour in 1992.(36) And in Maryland,
in 1991, an average overhead cost of $70 per hour.(37)
Since those surveys were conducted, overhead costs have continued to rise. But the
compensations rates have not, effectively turning panel attorney service, at $45/65 per hour in most
states, into a direct subsidy of the government's constitutional obligation to provide assistance of
counsel to the indigent accused of crime.(38) The Judicial Conference has long recognized this
problem:
The $40 and $60 hourly rates paid to CJA panel attorneys are seriously deficient. In
many locations, they do not even cover the basic office overhead costs of law offices.
Thus, many lawyers accept assignments of cases from the federal courts at a financial
sacrifice to their livelihood.(39)
Of course, the problem is most acute in districts without a federal defender organization,
where panel attorneys are often conscripted to fulfill the government's constitutional obligations,
losing their livelihood, and risking bankruptcy in the process.(40)
The crux of the CJA panel attorney payment problem is this: The CJA, unlike the 1931
Davis-Bacon Act for government construction projects,(41) does not require panel attorney payments
reflecting, or even reasonably approximating, the prevailing private market wage. In fact, the $75
maximum rate is less than fifty percent of the value set by the private market in most locations.
Continued payments at a fraction of that statutory rate -- and below the out-of-pocket cost of
keeping an office open -- continually violates the basic constitutional property rights of those panel
attorneys who, after all, have the same rights and responsibilities of any other small business
owner.(42) While the public policy of paying prevailing wages for work on government construction
projects is laudable, the policy of shirking the constitutional obligation to provide counsel to poor
persons whose life and liberty the government seeks to forfeit is scandalous.
Qualification Standards for Panel Attorneys
As the costs of living generally -- and practicing law in particular -- have risen, and as
federal criminal law has become more complex, time-consuming and specialized, the pool of
qualified CJA panel attorneys has decreased because the rates in most areas have been virtually
frozen for nearly 15 years. Some of the resulting problems are explained by the Judicial Conference
Report:
Federal criminal law, including its sentencing aspects, has become exceedingly
complex. It is no longer feasible for a state criminal defense lawyer to appear
occasionally in a federal court and be expected to perform competently. Lack of
knowledge of federal law and procedure can create very serious adverse
consequences for criminal defendants.
In order to be an effective advocate in a federal criminal case today, it is essential that
an attorney be knowledgeable in the federal sentencing guidelines. Unfortunately,
however, information elicited by the Review Committee indicates that it is not
uncommon for attorneys with little or no criminal experience to be appointed in
federal cases, and a lack of training for panel attorneys was a common complaint
cited in hearings before and correspondence to the review committee.(43)
Given the well-recognized, increasingly serious difficulty in recruiting qualified panel
attorneys, the Judicial Conference proposed "only minimal qualification standards."(44) Even though
quality control is essential, because most districts are stuck at barely above the $40/$60 rates
established in 1984, the Conference was forced to recognize that "specific requirements might render
it difficult or impossible to find a sufficient number of attorneys to serve on the panel."(45)
However, the 1995 Long Range Plan for the Federal Courts recommends against further
delay in qualification standards: "The CJA does not establish qualification standards for attorneys
serving on CJA panels. The practice of federal criminal law has become highly specialized.
Defendants face increasingly lengthy prison terms. It is time for panel attorneys to be held to certain
minimum qualifications."(46) But with compensation at or below the cost of merely maintaining a law
office, the continuing education necessary to meet minimum standards is an expense many lawyers
cannot afford.
The clear solution is simply the market system: panel attorneys paid at a fair rate (even
though substantially less than the market rate) can purchase from the private market the training
necessary to competently fulfill the government's constitutional mandates. The Judicial Conference
should set high standards; Congress should appropriate funding sufficient to enable panel attorneys
to purchase the training necessary to obtain (and maintain) the skills necessary to do the job. The
whole criminal justice system will work efficiently then, to the benefit, including tax savings, of us
all -- and it will be a justice system worthy of its name.
The Role of the Private Bar
The Criminal Justice Act requires a "substantial proportion" of appointments to the private
bar.(47) "'Substantial' shall usually be defined as approximately 25 percent of the appointments under
the CJA annually throughout the district."(48) The American Bar Association also recommends
"substantial participation by the private bar,"(49) in order to provide a broad-based constituency for
improvement of the criminal justice system:
All lawyers, whether criminal practitioners or not, share in the responsibility of
ensuring that the most visible legal institution in the Nation, the criminal justice
system, is of the highest attainable quality. Increasingly, however, indigent defense
in many cities is almost the exclusive responsibility of public defenders and a very
small private bar. The remainder of the trial bar is not fulfilling its obligation to
participate through the representation of indigent defendants, and as a result, the
shunning of criminal defense practice deprives the criminal justice system of a
powerful voice for criminal justice reform, because the influential lawyers are
unfamiliar with the working of the criminal justice system.(50)
The private bar's participation in the federal criminal justice system is also necessary to
counter the inherent trend, in any closed bureaucracy,(51) of ignoring or rejecting alternative, even
critical, points of view; in other words, to provide for a healthy and efficient system of checks and
balances.(52)
The combination contemplated by the CJA -- approximately 25 percent private panel
attorneys; 75 percent public defenders -- is readily attainable. Defender offices can and should be
opened in all federal districts, and should receive the lion's share of the appointments. The
remaining cases should be assigned to panel attorneys who are willing (not conscripted), who are
qualified (meeting high competency standards) and who are reasonably compensated (in order to
maintain qualifications, pay necessary office overhead, and avoid destitution).
Conclusion
The Defender Services Appropriation has been woefully underfunded for many years.
During that same period, funding for federal law enforcement, prosecution and prison construction
has grown dramatically. And, at the same time, criminal law and procedure have become more
complex; death penalty litigation has expanded and accelerated, while funding for cost-effective
capital representation has been eviscerated; and the costs of legal practice have escalated. This
severe funding imbalance is a major factor in what Representative McDade identifies as the growing
culture of "unethical, abusive and improper conduct by U.S. Department of Justice employees."
Through the appropriations process, Congress has the opportunity -- indeed, the duty -- to take a
major step toward reestablishing a system of fairness and accountability within America's criminal
justice system.
The best way to obtain these goals -- and to fulfill the government's constitutional mandate
-- is to fully fund the Criminal Justice Act. Because past appropriations have been grossly
underfunded, and because the pending appropriation proposed by the Administration is demonstrably
inadequate to redress the dire need, NACDL urges this Committee to recommend -- and the
Congress to enact -- an adequate Defender Services Appropriation of no less than $450,000,000.
This appropriation cannot be viewed in a vacuum. The Constitution of the United States mandates
a fair and efficient criminal justice system for all Americans. Full and fair funding to accomplish
that is a pittance to pay. On the other hand, the consequences of not doing so are dire and go to the
heart of everything our fragile democracy stands for.
#####
A 1967 graduate of Brooklyn Law School, Gerald B. Lefcourt is the President of the
National Association of Criminal Defense Lawyers, a founder of the New York State
Association of Criminal Defense Lawyers and past President of the New York Criminal Bar
Association. Mr. Lefcourt is head of a four-lawyer firm in New York City, Gerald B.
Lefcourt, P.C., specializing in the defense of criminal cases. Long considered one of the
defense bar's leading spokesmen and most passionate advocates, he has defended clients as
diverse as the Black Panthers, Abbie Hoffman, Harry Helmsley and former New York
assembly Speaker Mel Miller.
Mr. Lefcourt is a lecturer, panelist and author of publications on a wide variety of
legal subjects including asset forfeiture, legal ethics, wire-tapping, plea bargaining,
subpoenas to lawyers, federal prosecutor ethics and representation of grand jury witnesses.
In 1983, he was named by the NY Law Journal in "Who's Who in Criminal Defense Bar"
as among New York's finest trial attorneys. The New York State Bar gave him their
"Outstanding Practitioner" Award in 1985 and again in 1993. In 1993, the National
Association of Criminal Defense Lawyers gave him the Robert C. Heeney Memorial Award
-- their highest honor.
Neither Mr. Lefcourt nor NACDL has received any federal grant, contract or
subcontract in the current and preceding two fiscal years.
Notes
1. NACDL is the preeminent organization in the United States advancing the mission of the nation's
criminal defense lawyers to ensure justice and due process for persons accused of crime. A professional bar
association founded in 1958, NACDL's almost 10,000 direct members -- and 80 state and local affiliate
organizations with another 28,000 members -- include private criminal defense lawyers, public defenders,
active U.S. military defense counsel, law professors and judges committed to preserving fairness within
America's criminal justice system.
2. Introduced on March 5, 1998, H.R. 3396 gathered 33 co-sponsors as of March 27, 1998:
Rep Murtha - 03/05/98; Rep King - 03/12/98; Rep English - 03/12/98
Rep Miller, D. - 03/12/98; Rep Parker - 03/12/98; Rep Hunter - 03/12/98;
Rep Duncan - 03/12/98; Rep Schaefer - 03/12/98; Rep Traficant - 03/12/98;
Rep Quinn - 03/12/98; Rep Saxton - 03/12/98; Rep Boehlert - 03/12/98;
Rep Smith, R. - 03/12/98; Rep Lewis, J - 03/12/98; Rep Hefner - 03/12/98;
Rep Stokes - 03/24/98; Rep Weldon, C. - 03/24/98; Rep Goodling - 03/24/98;
Rep Sisisky - 03/24/98; Rep Rohrabacher - 03/24/98; Rep Moakley - 03/24/98;
Rep Horn - 03/24/98; Rep Bachus - 03/24/98; Rep Skeen - 03/24/98;
Rep Ford - 03/24/98; Rep Baldacci - 03/24/98; Rep Mica - 03/26/98;
Rep Cunningham - 03/26/98; Rep Pickett - 03/26/98; Rep Knollenberg - 03/26/98;
Rep Clay - 03/27/98; Rep Callahan - 03/27/98; Rep LoBiondo - 03/27/98
3. Joseph M. McDade, "Safeguard Civil Liberties - Require Ethical Conduct at Justice," (letter to
Members of Congress, March 25, 1998).
4. See, e.g., Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry (1969).
5. Arnold I. Burns, "What By-the-Book Prosecutors Can Get Away With," Wall Street Journal, A23
(March 23, 1998).
6. Paul Craig Roberts, "Ambition Above Justice," Washington Times, A18 (March 26, 1998).
7. Id.
8. "In 1997, filings of both criminal cases and defendants rose to their highest levels since 1933, the
year the Prohibition Amendment was repealed. Case filings grew 5 percent to 50,363. . . . Defendant filings
climbed 4 percent to 70,201. Criminal case terminations rose 3 percent. With filings outpacing terminations,
the pending caseload grew 11 percent to 35,632." Administrative Office of the United States Courts, Judicial
Business of the United States Courts 1997 ("Judicial Business 1997").
9. "Through its defender services program, the Judiciary provides legal representation
for defendants financially unable to retain counsel on their own. The right to counsel
is guaranteed by the Sixth Amendment to the Constitution. Approximately 85
percent of criminal defendants in the federal courts require court-appointed counsel.
The Judiciary has no control over the number of individuals for whom it must provide
services. This is a function of congressional action, Department of Justice policies,
and U.S. attorney practices."
Administrative Office of the United States Courts, Report to Congress on the Optimal Utilization of Judicial
Resources, 36 (January, 1998).
10. See Judicial Business 1997, supra, at 25.
11. Gideon v. Wainwright, 372 U.S. 335 (1963); Johnson v. Zerbst, 304 U.S. 458 (1938).
12. Britt v. North Carolina, 404 U.S. 226, 227 (1971).
13. Ake v. Oklahoma, 470 U.S. 68, 77 (1985).
14. Report on the Federal Defender Program 11 (March 1993). The result of an extensive study of
the effectiveness of the Criminal Justice Act, as required by Section 318 of the Judicial Improvements Act
of 1990, the Report is reprinted at 53 CrL (BNA) 2003 (April 14, 1993).
15. Report on the Federal Defender Program, at 12.
16. Report on the Federal Defender Program, at 20-21.
17. See, e.g., ABA, Resolution of the House of Delegates, Feb. 1997 (calling for a moratorium on
imposition of the death penalty because of widespread defects, notably a failure to provide qualified and
compensated defense counsel, investigators and experts); Int'l Comm'n of Jurists, Administration of the
Death Penalty in the United States (June 1996).
18. See, e.g., Davis v. Thomas, 266 Ga. 835, 471 S.E.2d 202 (1996) (describing the scramble to replace
PCDO representation following de-funding, and ordering a continuance in a state habeas case).
19. Report on the Federal Defender Program, at 26. See also, U.S. General Accounting Office,
Defender Services Program, 5 (July 1990) (finding that the PCDOs' average "cost per representation" was
46% of the cost of panel attorney death penalty representations).
20. House Report 99-417, 99th Cong., 1st Sess., (December 5, 1985) (Statement of Congressional
Budget Office, appended to Report). See Cong. Record Vol. 131 (1985); 1986 USCCAN 61654; 1985 WL
25927 (Leg.Hist.).
21. See House Report 91-1546, 91st Cong., 2d Sess., (September 30, 1970); 116 Cong.Rec. 34,812,
34812 (1970); 1970 USCCAN 3982; 1970 WL 5700 (Leg.Hist.).
22. In 1988, the $75 rate was established -- and implemented -- in the following districts and court
locations: Alaska, California (Central, Eastern (Sacramento and Fresno), Northern & Southern), District of
Columbia, Detroit, Michigan, New Jersey, Las Cruces, New Mexico, New York (Eastern and Southern), and
Seattle, Washington; $70 rates were approved for Phoenix and Tucson, Arizona and for Hawaii; and $60
rates for Oregon and Las Vegas and Reno, Nevada. Proceedings of the Judicial Conference (JCUS) 16, 46,
75, 111 (1988).
23. JCUS 79, 108 (1990).
24. JCUS 18, 47, 56-57, 73 (1991).
25. JCUS 21-22, 39 (1992).
26. JCUS 82 (1995).
27. See, e.g., Senate Report No. 102-333, 102d Cong., 2d Sess., 82 (July 23, 1992) (Committee "does
not approve" implementing statutory rate increases in FY 1993); House Report No. 102-709, 102nd Cong.,
2d Sess., at 75 (Sept. 28, 1992) ("While the conferees are not attempting to second guess the judgment of
the members of the Judicial Conference concerning the need for increases in panel attorney rates, the
constraints facing the conferees precluded the inclusion of such an increase in the conference agreement"
for FY 1993); Senate Report No. 103-105, 103rd Cong., 1st Sess., at 84 (July 22, 1993) (for FY 1994, the
"Committee has not included, and does not approve . . . a 5-year catchup Federal pay comparability
adjustment for panel attorneys. Similarly, the Committee continues to oppose expansion of the $75 hourly
out-of-court rate for panel attorneys in districts outside the 16 currently receiving this rate"); House Report
No. 103-293, 103rd Cong., 1st Sess., at 72 (Oct. 14, 1993) (same); Senate Report No. 103-309, 103rd Cong.,
2d Sess., at 102 (July 14, 1994) (Committee "has not included . . . pay raise for panel attorneys in fiscal year
1994"); House Report 104-676, 104th Cong., 2d Sess., at 90 (July 16, 1996) ("Committee has not provided
. . . for increases in the rate for panel attorneys"in FY 1997); House Report No. 105-207, 105th Cong., 1st
Sess., at 101 (July , 1997) ("Committee has not provided for increases in the rate for panel attorneys" in FY
1998); House Report 105-405, 105th Cong., 1st Sess., at 167 (Nov. 13, 1997) (same).
28. Records of surveys conducted by the Administrative Office of the United States Courts.
29. Id.
30. State of Vermont v. Bacon, 163 Vt. 279, 315 (1995).
31. State of Tennessee v. Mathews, Criminal Court of Montgomery County, No. 33791, (March 18,
1995), at 1 (order setting a court-appointed hourly rate, in a capital case, at $100 per hour).
32. Records of surveys conducted by the Administrative Office of the United States Courts.
33. Id.
34. Id.
35. Id.
36. Id.
37. Id.
38. The Judicial Conference's CJA Guidelines, 2.28 A., excludes office overhead from those
expenses reimbursed to panel attorneys: "The statutory fee is intended to include compensation for these
general office expenses." Compare, e.g., State of Louisiana v. Green, 631 So.2d 11, 13 (La. App. 1993)
(setting an overhead expense reimbursement rate of $30 per hour in addition to fees of $45 per hour).
39. Report on the Federal Defender Program, at 30.
40. See, e.g., Bey v. United States, No. 93-8442, cert. denied, 114 S.Ct. 2714, rehearing denied, 115
S.Ct. 27 (1994) (question presented: "Does the continued compulsory service of attorneys . . . in an eight-month trial . . . violate the Sixth Amendment rights of the indigent defendants and/or the Fifth and Fourteenth
Amendment rights of the appointed attorneys. . . ?"); Audrey Duff, "Slaves of St. Louis," The American
Lawyer, 85 (Jan/Feb 1993).
41. See 40 U.S.C 276a, "Rate of wages for laborers and mechanics."
42. See FTC v. Superior Court Trial Lawyers Assn., 493 U.S. 411 (1990) (CJA panel attorneys are
small businesses covered by the Anti-Trust laws).
43. Report on the Federal Defender Program, at 28. The Report of the Committee to Review the
Criminal Justice Act is reprinted at 52 CrL (BNA) 2265 (March 10, 1993).
44. Report on the Federal Defender Program, at 28.
45. Report on the Federal Defender Program, at 27.
46. Long Range Plan for the Federal Courts, 120 (1995).
47. 18 U.S.C. 3006A(a)(3).
48. Administrative Office of the United States Courts, "Model Criminal Justice Act Plan," VI.C
(1991).
49. ABA Standards for Criminal Justice, Providing Defense Services (ABA Standard) 5-1.2
(3d ed. 1992).
50. ABA Standard 5-2.2 (Commentary).
51. The Judicial branch, in its administrative role, is exempt from most laws covering open meetings,
public records, or freedom of information.
52. The institutional benefit of private bar participation is illustrated by In re Snyder, 472 U.S. 634
(1985), where the unanimous Supreme Court held that a private CJA panel attorney was not contemptuous
for criticizing the administration of the CJA. "Officers of the court may appropriately express criticism on
such matters." Government employees, however, may not be so protected. See Waters v. Churchill, 114
S.Ct. 1878 (1994) (public employees can be summarily fired for criticism that could disrupt efficiency).
See also the related
press release regarding Gerald Lefcourt's testimony.