On the Role of the Federal Government Regarding the Public Defense Function

In June 2021 NACDL convened a Defender General Working Group to study and inform NACDL’s policies relating to the potential role of the federal government regarding the defense function. Rather than supporting a particular title or agency, the National Association of Criminal Defense Lawyers endorses the following policies related to the federal government’s role in public defense.

1.  Defense voices

The federal government must act to ensure defense voices are included in discussions and decision-making that:

  1. Directly or indirectly impact defense lawyers, defender agencies, defense delivery systems, or the clients they serve.

  2. Relate to funding for defense lawyers, defender agencies, and defense delivery systems.

  3. Relate to federal grant funds for criminal legal system stakeholders.

  4. Relates to policies, procedures, and practices in the criminal legal system.

The federal government must end practices that fail to include the defense as a stakeholder alongside their counterparts from the prosecution and judiciary. This includes adding a federal defender as an ex officio member of the US Sentencing Commission.  

2.  Federal Grants, Resources and Financial Support

The federal government must establish the defense function as a core priority area for federal funding relating to the criminal legal system including:

  1. Ensure that federal grant funding legislation, such as Byrne JAG, designates public defense as its own focus area.

  2. Ensuring that when federal funding, training, or other resources are provided to law enforcement and/or prosecutors, commensurate resources are also made available to public defense providers and systems.

  3. Providing training for public defense providers, SAAs, and other relevant personnel regarding defender eligibility for federal funds.

  4. Funding and supporting innovative, holistic, and constitutionally effective defense services.

3.  Data Collection

The federal government must ensure the regular collection of data relating to public defense systems by:

  1. Working with the defender community to identify core data to collect.

  2. Providing resources to develop and support the infrastructure needed to collect and maintain such data.

  3. Ensuring those analyzing the data have experience with and knowledge of the defense function.

  4. Making the data available and accessible to defenders and the public. 

4.  Support Improvements to State and Local Public Defense Systems

The federal government, through agencies like DOJ and its Office for Access to Justice, can play a critical role in supporting the right to counsel. This includes:

  1. Filing Statements of Interest and amicus briefs in support of litigation; conducting investigations; pursuing litigation; and obtaining and monitoring consent decrees that address systemic deficiencies in state and local public defense delivery systems.

  2. Supporting efforts that promote adequate funding, compensation, staffing, and resources for public defense delivery systems.

  3. Supporting efforts to ensure at all levels public defense systems are free from judicial interference.

  4. Ensuring there is adequate staffing, funding, and resources to support these initiatives.

  5. Supporting legislation that enables impacted individuals to raise systemic challenges and pattern and practice abuses, and otherwise seek redress for constitutionally deficient state and local public defense systems.

5.  Defense Impact

  1. All federal legislation, spending bills, rule changes, policies and practices of federal agencies that impact the criminal legal system must include an assessment of their impact on public defense delivery systems, public defense lawyers, and the defense function generally.  Such impact statements should consider impacts on staffing, resources, equipment, data/technology infrastructure, and caseloads.

  2. All such assessments must be made by or in consultation with those who have specific experience working with the defense function.

6.  Prioritize Defender Initiatives and Staffing Within DOJ.

To fulfill part of its stated mission “to ensure fair and impartial administration of justice for all Americans,” the Department of Justice must have a robust, meaningful defender representation and ensure that relevant leadership positions impacting the defense function and the communities they serve are filled. To meet this mission DOJ must:

  1. Ensure leadership roles in federal agencies critical to the defense function and the clients they served are promptly filled when vacancies arise. This includes leadership of the Office for Access to Justice and the Office of the Pardon Attorney.

  2. Recruit and promote individuals with a defense background and experience to career staff positions within DOJ.

  3. Promote initiatives and efforts that support and elevate the defense function and the provision of public defense services through the allocation of substantive funding, staffing, and resources.

7. Supreme Court Advocacy

  1. Support the creation of federally funded opportunities to develop, train, and support criminal defense lawyers who are appearing before the United States Supreme Court.

  2. Oppose policies or agencies that would undermine the Sixth Amendment including those which prevent or seek to interfere with the decisions of an individual defendant regarding:

    1. Their choice of counsel

    2. Their choice of case theory, argument, or strategy.

8.  Federal Public Defense

Consistent with NACDL’s previously approved Seven Fundamentals of a Robust Federal Indigent Defense System and its 2016 Resolution calling for independence of the federal public defense system, it is crucial that action be taken to:

  1. Support and promote efforts that ensure adequate funding, compensation, staffing, and resources for federal defender offices and Criminal Justice Act attorneys.

  2. Support and promote efforts to ensure at all levels the federal public defense system is free from judicial interference.

  3. Create a federally funded, independent agency to oversee federal public defense that is free from political and judicial influence.

9.  Stable Operations, Funding, and Independence

Any entity created at the federal level to support public defense, or the defense function generally must:

  1. Be free from political influence and partisan politics that would compromise its independence, policies, and decision-making. 

  2. Have adequate resources, and authority to

    1. Be an effective and independent voice for public defense needs.

    2. Fulfill its identified role and mission.

  3. Have stable, sustainable, and sufficient funding and funding sources for long-term operation.

  4. Be insulated from ready dissolution, dismantling, defunding, demotion, or other practice that would diminish the independence or import of the entity by action by a single official or simple majority of legislators.

10.  Leadership

A healthy and just legal system requires diverse backgrounds and experiences that reflect the whole of the legal system and the communities they are serving. To promote greater balance and legitimacy to federal leadership, it is critical to:

  1. Nominate and confirm to judicial positions at the trial, appellate, and Supreme Court levels, individuals with substantial experience as public defenders and criminal defense lawyers.

  2. Ensure critical roles in the federal government that impact the criminal legal system have meaningful representation of individuals with criminal defense and public defense experience and expertise.

  3. Consistent with NACDL’s 2018 Resolution on Public Defense Leadership, individuals placed in any leadership, oversight or management of the defense function should:

    1. Be independent and insulated from control by actors whose interests may be directly or indirectly adverse to the defense function.

    2. Have a demonstrated commitment to and experience in

      1. Delivery of high quality, effective and zealous advocacy on behalf of those accused of criminal offenses.

      2. Confronting, addressing and working to eliminate racial disparity and bias in the criminal legal system.

      3. Advocating on behalf of the defense function’s resources, structure and funding.

Resolution of the Board of Directors
February 26, 2022
Austin, Texas

Read the report of NACDL's Working Group

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