NACDL's Response to the Federal Indigent Defense Crisis
NACDL’s efforts to restore funding to the Federal Indigent Defense System must be viewed within the context of indigent defense reform more generally. Since its inception nearly 50 years ago, the Federal Indigent Defense System, which relies on dedicated Federal Defenders and members of the private bar to provide representation to indigent defendants, has been viewed as a model indigent defense delivery system. Because the Federal Indigent Defense System has historically been well funded, most indigent defense reform efforts have focused on under-resourced state indigent defense systems.
It is also important to remember that sequestration was never actually supposed to happen: the threat of severe, across the board budget cuts was designed to compel Congressional action. When Congress failed to act, many federal agencies found that they were unprepared to deal with the devastating effects of sequestration.
The result was that one of the best indigent defense delivery systems in the nation suddenly faced an unprecedented threat. One of NACDL’s priorities has been to make sure that sequestration did not drive a wedge between the Federal Defenders and the members of the CJA panel. NACDL’s Executive Director Norman Reimer drew attention to this specific issue in a Letter to the Editor of the New York Times in early April 2013 noting that an effective indigent defense system “requires the participation of both public and private defenders, and adequate resources and money for both." Over the following months NACDL began a campaign to restore funding to the Federal Indigent Defense System.
June 25, 2013
NACDL issued a press release
that called attention to the inadequate funding of the Federal Defense
System as well as its lack of independence form the judiciary.
July 23, 2013
NACDL, in partnership with The Constitution Project, the American Civil
Liberties Union (ACLU), the National Legal Aid and Defender
Association (NLADA) and the American Council of Chief Defenders (ACCD),
sent letters to both the Senate Subcommittee on Bankruptcy and the Courts and the Subcommittee on Financial Services and General Government urging the restoration of funding to the Federal Indigent Defense System.
July 27, 2013
At the NACDL Annual Meeting, the Board unanimously approved a resolution
opposing any further cuts to the Federal Defender Offices; opposing
any reduction in the rate of compensation paid to assigned counsel
under the CJA; and calling upon Congress to create federally funded,
independent Office of Defender Services.
August 13, 2013
Following the annual meeting, NACDL drafted a letter to Chief Justice John Roberts urging the Judicial Conference “to take whatever temporary measures may be necessary in order to maintain the quality of representation provided under the federal indigent defense system while avoiding any further cuts to federal defenders or any reduction in the panel compensation rate.” The letter was cosigned by 26 affiliate organizations from 25 states and the Commonwealth of Puerto Rico.
August 20, 2013
NACDL co-sponsored an event with the Federal Bar Association at the Library of Congress commemorating the 50th anniversary of the passage of the Criminal Justice Act of 1964 in an effort to highlight the effects that sequestration has had on the Federal Indigent Defense System. The event was broadcasted by CSPN and the video is available here.
September 17, 2013
On Constitution Day, NACDL co-sponsored a congressional briefing at the Rayburn House Office Building. The briefing, “Chipping Away at the Sixth Amendment: Federal Indigent Defense in Crisis”, included representatives from the Office of Defender Services, the Federal Defenders and CJA panel attorneys. The briefing was held to alert Congress to the drastic effects that sequestration has had on the Federal Indigent Defense system during 2013 and to highlight the devastating impact that any additional cuts in 2014 would have on both federal defender offices and CJA panel attorneys.
October 19, 2013
At NACDL’s Fall Meeting, NACDL President, Jerry Cox, announced the creation of a task force to examine the effects that sequestration is having on the federal indigent defense delivery system, and to more broadly examine the federal indigent defense system. The task force will also evaluate the level of independence that the Office of Defender Services is afforded and will consider whether reforms are necessary to ensure adherence to the ABA’s Ten Principles of a Public Defense Delivery System.
NACDL’s Ethics Advisory Committee issued Formal Opinion 13-01 in response to a question from a federal defender about the need to preserve client confidences under Rule 1.6 of the Model Rules of Professional Conduct. The opinion concludes that absent additional assurances from the Administrative Office, it is unethical for the Federal Defenders to participate in a data merger program that does not adequately protect confidential information for past and present clients.
Representatives of NACDL’s Task Force on Federal Indigent Defense recently attended the Federal Defender Conference in Washington D.C. where they discussed the long term effects of the budget cuts, panel rate cuts and payment deferrals, as well as the overall health and future of federal indigent defense.
Congress passes and the President signs H.R. 3547, the “Consolidated Appropriations Act, 2014,” which provides fiscal year 2014 full-year funding for the federal government, including the Judiciary. The Judiciary receives its requested level of funding, which includes an increase for the Defender Services account. The defender budget is roughly level with the pre-sequestration FY 2013 budget.
The Judicial Conference Executive Committee approves a spending plan that restores CJA rates to their previous levels as of March 2014. It is anticipated that this budget allocation will enable some defender offices to rehire staff.
Representatives of the Task Force attended the CJA Panel Representatives conference in Alexandria, VA on March 1, 2014. The Task Force also met in New Orleans on March 7, 2014 to review its findings to date and to plan the next steps.