Note: Information for this section provided by an individual with long experience with the Federal Public Defender Service.
The Federal Criminal Defense Program and the Criminal Justice Act
This page summarizes access to justice for defendants in federal criminal proceedings in the United States. It relies heavily upon the 2017 Report of the Ad Hoc Committee to Review the Criminal Justice Act (the Cardone Report). The Cardone Report is publicly available and may be found at https://cjastudy.fd.org/.
The touchstone for understanding the provision of criminal defense services for those who cannot afford the assistance of counsel in federal proceedings as required by the U.S. Constitution is the Criminal Justice Act (CJA) of 1964, 18 U.S.C. § 3006A. Representation under the CJA includes not just counsel but also investigative, expert, and other services necessary for a full and fair defense.1 Any financially eligible person who is charged with a felony or a Class A misdemeanor; is a juvenile alleged to have committed an act of juvenile delinquency2; is charged with a violation of probation; is under arrest, when such representation is required by law; is charged with a violation of supervised release3; is subject to a mental condition hearing4; is in custody as a material witness; is entitled to the appointment of counsel under the sixth amendment to the Constitution; faces loss of liberty in a case, and federal law requires the appointment of counsel; or is entitled to counsel for verification of consent in international prisoner transfers5 will be provided representation under the CJA.6
Furthermore, whenever a United States magistrate judge or federal court determines that the interests of justice so require, representation may also be provided under the CJA for any financially eligible person who is charged with a Class B or C misdemeanor, or any infraction for which a sentence to confinement is authorized, or when the person is seeking relief under section 2241, 2254, or 2255 of Title 28 of the United States Code (writs of habeas corpus).7 Thus, the CJA’s scope is broad and covers defendants throughout the entire federal criminal justice process, from pretrial matters through trial and direct appeal, as well as habeas corpus proceedings—fully 93 percent of individuals haled into federal criminal court require counsel appointed under the CJA.8
One of the unique aspects of the Act is that each of the 94 United States district courts, with the approval of the judicial council of the federal circuit in which each court is located, is required to publish a plan for furnishing representation under the CJA.9 Prior to approving a district’s plan, the circuit judicial council must add a supplement with provisions for representation on appeal.10 These plans give local district and circuit courts significant authority in administering the program, and this local control creates considerable variation across districts in the provision of defense services.11
The individuals who deliver criminal defense services consist of private lawyers as well as employees of institutional defender offices as determined by each district, both of which are funded by the federal judiciary under a separate appropriation from Congress. As the Cardone Report put it:
Since the CJA’s amendment in 1970, the federal defender program has functioned as a hybrid system comprised of public defender offices and appointed private attorneys. This system allows for flexibility, since panel attorneys can step in to handle a sharp increase in prosecutions. It also addresses conflicts that may arise in multi-defendant cases, with the defender office often taking the lead defendant while panel attorneys act as counsel for the other defendants. The current system offers the consistency of having an institutional defender office, which not only sets the bar for defense best practices locally but, with ready access to resources, can often provide training opportunities and assistance to panel attorneys in that district.12
There are two types of institutional defender offices available for districts that require at least 200 CJA appointments annually: Federal Public Defender Organizations (FPDOs) and Community Defender Organizations (CDOs).13 FPDOs are headed by a federal public defender appointed by the federal circuit in which the office is located for four-year terms. All FPDO staff are federal employees and each circuit court determines the number of assistant federal defenders an office may hire.14 In contrast, CDOs are non-profit corporations funded through grants administered by the Defender Services program. CDOs are managed by a board of directors and employ an executive director who functions as the district’s federal defender.15
From the perspective of a defendant and the public, FPDOs and CDOs look very similar from the outside and operate nearly identically, and they are referred to collectively as “federal defender organizations,” or FDOs. Today, there are a total of 81 FDOs with approximately 3,850 employees throughout the United States and its territories, 64 of which are FPDOs while the remaining 17 are CDOs. Although districts are not mandated to establish FDOs, they cover 91 of 94 federal districts (some offices cover more than one district) and they represent approximately 60 percent of clients appointed under the CJA.16
Private attorneys, depending on the district, either apply to be included on the local “CJA panel” or are placed on the panel through some other process. Panel attorneys are often solo practitioners or from small firms and also take paying clients in addition to their appointed cases. Each district has a CJA panel attorney district representative to communicate with the national program and disseminate information among panel attorneys.17 Nationwide, there are approximately 12,000 private panel attorneys and together they handle about 40 percent of representations under the CJA at an hourly rate of $148 in non-capital cases and $190 in capital cases.18
The Cardone Report succinctly described the governance structure of the federal defender program:
The Criminal Justice Act places the national administration of the program under the authority of the Judicial Conference of the United States (JCUS or Judicial Conference) and the Administrative Office of the United States Courts (AO or Administrative Office). JCUS is authorized to create rules and regulations for the program, while the director of the AO is tasked with supervising the expenditures of funds appropriated for indigent defense. The statute also charges JCUS with determining the hourly rate for panel attorneys as well as the maximum amount to be paid to a panel attorney on any one case without additional justification and oversight.
The Judicial Conference is the judiciary’s governing body. It consists of the Chief Justice of the Supreme Court, who presides; the chief judges of each circuit; and one district judge from each circuit. The Conference administers judiciary funds and makes policy for the administration of the courts. JCUS has committees to advise the larger Conference on a variety of matters, such as the Committee on Criminal Law, the Committee on Court Administration and Case Management, and the Committee on Information Technology. The Executive Committee is the chief decision-making body within the Conference, determining the jurisdiction of the other committees and setting the calendar and agenda for JCUS.
The Defender Services Committee (DSC), comprised entirely of judges, is the JCUS Committee charged with overseeing the CJA program. DSC provides policy guidance, reviews budget and staffing requests for defender offices, monitors legislation affecting the appointment and compensation of counsel, assists to ensure adequate and appropriate training for defense attorneys, and helps determine long-range goals for the program. As part of the DSC’s process, it receives feedback from the defender community through established working and advisory groups. Although DSC is directly responsible for overseeing the defender program, under the current JCUS structure, this Committee does not have final decision-making authority on any aspect of the CJA program.
The AO performs administrative functions for the federal judiciary and oversees the expenditure of appropriated funds. Its mission is to serve and support the federal judiciary pursuant to the policies, guidance, and direction of the Judicial Conference. The AO provides the working staff for all JCUS committees and so plays an important role in JCUS policymaking. It assists in creating the judiciary’s budget, maintains a legislative office that has contacts with Congressional staffers to track and offer comment on legislation affecting the judiciary, and provides auditing services and financial accountability for court entities, among other tasks.
Within the AO, the office responsible for staffing DSC and assisting in the national administration of the CJA is the Defender Services Office (DSO). DSO’s mission is divided between supporting defenders and panel attorneys and, as part of the AO, supporting judiciary interests. DSO provides training to CJA practitioners, advises on legal and policy issues affecting the provision of counsel and other services under the CJA, assists individual defender offices in formulating budgets, serves as staff to AO working and advisory groups, and collects [caseload-related] data on the defender program. 19
The size of the federal defender services program, while much smaller than the Department of Justice that investigates and prosecutes cases on behalf of the United States, is nonetheless large and considered the “gold standard” of the criminal defense bar by many across the country.20 The program today has a budget of over $1.1 billion21 and is responsible for more than 250,000 representations under the CJA.22 FDO staffing is determined by a work measurement formula that helps ensure caseloads do not reach the levels of some beleaguered state public defender offices, and the combination of FDOs working together with panel attorneys helps maintain a standard level of proficiency for the complex cases they handle in federal court.
However, as noted in the Cardone Report, structural problems continue to exist within the program more than 50 years after the CJA’s enactment. The fundamental issue of maintaining a constitutionally guaranteed function centered on advocating for individuals’ rights independent from the judges who hear criminal cases led to the Committee’s unanimous recommendation: that Congress create an independent defender commission within the judicial branch, but outside the jurisdiction of the Judicial Conference and AO.23 This recommendation is still being considered and studied even as most of the Committee’s interim recommendations have already been adopted, either as written or in modified form. While much has been done, more is needed before the full promise of the sixth amendment can be fulfilled at the federal level within the United States.