Restructuring Federal Criminal Defense

The need for independence.

|The Volokh Conspiracy |

From 2015 to 2017, I served on a Judicial Conference committee to review how the federal Criminal Justice Act works. For those who don't know, the Criminal Justice Act structures how federal criminal defendants who can't afford their own lawyers get lawyers appointed for them. Although we finished our report in 2017, the report wasn't made public until last month. And the public release of the report was terribly timed: It was quietly posted to the web on October 4th, the day before the cloture vote on now-Justice Kavanaugh's nomination. Perhaps unsurprisingly, our report received zero press coverage. I think the report is pretty newsworthy, though, so I thought I would flag it and note my partial dissent on one aspect of our work.

Here's the basic idea. Our committee found that there is a pressing need to reorganize federal criminal defense. We concluded that judges have too much of a role in overseeing appointed defense lawyers. Federal judges are deeply involved in indigent criminal defense. They appoint lawyers under the CJA, appoint federal defenders, review voucher requests, approve experts, and the like. Someone needs to play that oversight role, of course. But as our report explains, we think the system would be better served if there were an independent agency serving that role rather than individual judges who are also presiding over the same cases. There's just too much of a conflict when judges are playing both roles. And some judges aren't the best at overseeing defense functions that they may not have the experience to evaluate.

Although the report was almost entirely unanimous, I wrote a separate statement dissenting about one important question: Who should run the agency, and how should they be appointed? My short separate statement begins:

My colleagues recommend that Congress should create a national defender commission modeled on the United States Sentencing Commission. Under their proposal, the national commission would be led by commissioners nominated by the President and confirmed by the Senate. No more than four of the seven commissioners could be from any one political party. No more than three could be judges.

None of us on the Committee are experts in the design of new federal agencies. Our expertise is in identifying the existing problems with the Criminal Justice Act rather than recommending new government structures. With that said, I don't think my colleagues have identified the best way for national commissioners to be selected and who should be eligible to serve on it.

In my view, it would be better for the commissioners to consist entirely of federal district court judges selected by other judges. Here's one way to do it: The district judges of each regional circuit could vote for a representative among them to serve a term as one of the commissioners. To ensure an odd number of commissioners, you could require two of the smaller circuits to join together and elect a single commissioner. The enacting statute could also impose some requirements on the judges elected, such as past experience as a criminal defense attorney and a commitment to the criminal defense function. The result would be an eleven-member commission of federal trial judges that would serve the function described in our report

However one comes out on the details, I hope our report gets wide attention. We spent a rather extraordinary amount of time and energy on the report. We met in person for something like 35 full days, heard well over 200 witnesses, did broad surveys, and received hundreds of written responses. And that is in addition to countless phone calls, months of writing, reading, and the like.

I realize that reforms like this may not be at the top of everyone's agenda. And no one wants to create another government agency unless they have to. But I think this would be a really valuable form to help federal criminal defense.

To read the full report, click here. For just the executive summary, click here. For my separate statement, click here.

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  1. You didn’t identify any reasons why the offered structure is deficient, nor any reason to believe that one made up entirely of judges would be ideal, or even better.

    I can think of at least one reason why adding judges on emeritus status but not judges on active status would be better… if this commission is to meet, they will have to travel to be in the same place at the same time. If you’re using district court judges, this means leaving a hole in the district court docket so they can go serve on the commission… and there would be time pressure while they were meeting, because they would know that the sooner they completed their commission tasks, the sooner they could return to their “real” work. This, in turn, likely assures that the bureaucracy below winds up doing most of the work, and making most of the decisions. If that’s going to happen anyway, you might as well put the bureaucracy in charge in the first place.

    1. I explain the reasons why in my separate statement. It is 3 pages long, so it’s not a heavy lift for those who want to read it.

  2. Blessings upon you and your work.

    An objection to the current system which comes to mind instantly is that so many judges are former prosecutors and their career experience may have affected their mind set, as well as leaving them potentially under-informed about the needs of indigent defendants.

    I’m very much afraid that something I saw in PACER last year might be representative of how the system works. The defendant had, not a public defender, but a court appointed conflict counsel. At least she thought she had one. The PACER documentation includes a handwritten motion from her to fire him for absenteeism. Faced with the threat of going to trial against the US attorney with an attorney who wouldn’t show up for work, of course she took the plea deal, which allowed her to see her children again while they were still children. Guilt or innocence did not enter into it.

    1. This is a strong point. The prevalence of former prosecutors is enough to damn the candidacy of federal judges unless someone can identify a way to overcome that problem.

  3. I accept your rationale for having judges select the commissioners rather than the President and Senate. I am not so sure that the commissioners should all be judges. It might be better to use a mixture of judges and others. Although judges are presumably less influenced by the ups and downs of getting tough on crime, they often do not like lawyers who give them a hard time. My thinking is that adding non-judges to the commission might counter any tendency to avoid appointing “difficult” defense lawyers.

    1. Thanks for reading, Bill. How would you have the others be appointed?

      1. I’m not sure. Perhaps by the bar associations?

  4. Will read the report over the holiday. For now I’ll just say thanks to you and the other conferees for your hard work.

    I’ll also agree it’s unfortunate the conclusions of such an important project have attracted so little attention. This is utterly uniformed spitballing, but do you think there’s any chance it could be folded into the proposed sentencing reform legislation kicking around, even if only to get it into the discussion?

  5. Leaving aside the practical pros and cons, what’s the argument that the current arrangements are constitutional ? Appointing, training, managing public defenders doesn’t seem to me to have anything to do with the judicial power, any more than appointing, training and managing public prosecutors. If the government is going to get into the business of providing public defenders then that seems to be to be squarely an executive function, pursuant to whatever rules the legislative branch specifies.

    Assuming that is so, what – if any – are the constitutional limits on members of the judicial branch performing functions within the executive branch ?

    Apologies if this is all dealt with in the long form report. I have merely skimmed the summary and Professor Kerr’s obiter.

    1. “Appointing, training, managing public defenders doesn’t seem to me to have anything to do with the judicial power”

      Placing them under the executive, with the prosecutors, seems doomed to conflict of interest. Both of the political branches seem like poor hosts, because defending the rights of the accused isn’t a political function. With two of the three branches knocked out, that leaves the judicial branch as the sole remaining potential home for the defenders.
      In the administrative state, they can be largely run by the bureaucracy, but the direction (and advocacy) needs to lie with someone who is responsive to concerns of justice (over concerns of, say, budget, or appearing to be “tough on crime” every two years.) The branch that takes the longest view of government is the judicial.

      1. Which may or may not be a good policy reason. But it still leaves the legal explanation outstanding.

  6. Odd that a media that cries out over perceived, potential and just plain imagined injustices, would have no interest in the means by which the poor and less abled are defended against big bad government. While nothing bleeds to lead, it seems that someone at NYT, WaPo, etc., could be interested with direct effort to engage them in a review of the report.

    1. Silly me. No sooner than having hit the Submit button did I realize that the aim of the report is to diminish injustices – the source of so many news stories. Now why would the media want to trade injustice for justice?

  7. Your argument for keeping politicians out of mix is good. Combining trial attorneys with the judges makes sense though, I think.

    I’m curious about some things that weren’t addressed in the report: First, what is the standard for determining indigence? In many cases even several hundred thousand in assets is not enough to mount an effective defense in a federal trial. Second, I noticed from looking at the chart of the number of indigents prosecuted annually that the number has grown from about 100,000 as late as 1998 to over 250,000 in 2016. What has caused this dramatic increase? Is it just that the total number of prosecutions has more than doubled, or that new laws have been passed that tend to target the poor, or simply that the standards for determining indigence have changed?

    1. The vast majority of federal criminal prosecutions are for drug crimes, but the federal toolbox changed. A lot of anti-terrorism statutes turned out to be useful against drug traffickers. Now, since drug traffickers don’t have income records showing lawful income, and you can’t assume they have drug profits on hand until after you convict them of being drug traffickers…

      Seriously, though, I’d guess the financial crash of 2008 created a lot of people who qualify as “indigent”.

      There may also be some supply/demand going on. A lot of the law graduates of 2008 to 2010-11 or so found that there was no job available after graduation, and thus switched to other career paths, never becoming practicing, employed, lawyers.

  8. I have long wondered why we don’t emulate the Navy’s JAG system. One office, one budget, attorneys alternately assigned to prosecute or to defend. It seems to work well for The Navy.

    Did you consider that in the study?

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