The Volokh Conspiracy

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Volokh Conspiracy

Restructuring Federal Criminal Defense

The need for independence.


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.