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Interview: Committee Works to Assure Effective Representation
An Interview with Judge John Gleeson, Chair of the Judicial
Conference Committee on Defender Services
Judge John Gleeson has served on the U.S. District Court for
the Eastern District of New York since 1994. Prior to joining the court, he was
in private practice and he also served as an assistant U.S. attorney from 1985
to 1994. He was named chair of the Committee on Defender Services in October
Q: What are the mission and goals of the Defender
Services program, and what role does the Committee on Defender Services
A: The mission, simply put, is to ensure the right to
counsel and other necessary defense services for all criminal defendants, and
many habeas petitioners, who cannot afford to retain counsel. The mission is
rooted directly in the Sixth Amendment and the Criminal Justice Act (CJA).
Our program’s four formally stated goals are to: (1) timely provide assigned
counsel services to all eligible persons; (2) provide appointed counsel services
(such as investigators and expert witnesses) that are consistent with the best
practices of the legal profession; (3) provide cost-effective service; and (4)
protect the independence of the defense function so that the rights of
individual defendants are safeguarded and enforced.
The Committee and its subcommittees have many roles. We work hard to assure
sufficient funding and support for federal defender organizations, which now
operate in all but four of the 94 districts, and for CJA panel attorneys. That
effort begins by making sure that the funding we already receive is spent
wisely. Our purpose is to perform the critical oversight function delegated to
the Committee by the Judicial Conference, but we also know that rigorous
oversight lends persuasiveness to any program increases we ask for. We can
request additional funding from the Judiciary, and ultimately from the
appropriators in Congress, only if we can demonstrate the need and provide solid
assurance that there is no waste in the program as it is currently funded.
We provide input to other components of the Judiciary on proposed legislation
and other policy matters affecting the interests of our program, and frequently
interact with other committees and their staffs in the Administrative
We review the funding for and effectiveness of AO-sponsored training programs
for federal defenders and for CJA panel attorneys, always with our eye on
improving the quality of representation.
We promote (and provide justification for) increases in panel attorney rates,
again with a focus on quality.
Q: Nationally, are courts able to keep enough qualified
attorneys on CJA panels?
A: No. In a series of professionally-conducted surveys,
more than half the judges reported that their courts were having some difficulty
finding enough qualified counsel at the then-hourly rate of $90. (It is now
$94.) The same survey showed that judges saw a significant disparity between the
quality of representation provided by federal defenders and that provided by
panel attorneys (93.3 percent viewed the overall quality of federal defenders as
“very good” or “excellent,” compared to 71.3 percent for panel attorneys).
Our decision to commission the surveys was sparked by a specific request from
Congress for data to support requests for rate increases. Some 70 percent of the
panel attorneys surveyed reported that an increase in the hourly rate is needed
for them to accept more noncapital CJA appointments.
The quality of representation provided by panel attorneys is inextricably
linked to the adequacy of the hourly rate, and also depends upon the
availability of sufficient funding for other defense services, such as
investigators and experts. Laypersons are often surprised to hear that, with a
national law office overhead average of $64 per hour and at the current rate of
$94, panel attorneys net an average of only $30 an hour before taxes.
Q: What kind of guidance or training do CJA attorneys
A: Panel attorneys are in need of both policy guidance
(such as what CJA funds can and can’t be used for, and rules regarding vouchers)
and substantive legal training.
The CJA Guidelines (which include a model CJA plan) form the foundation for
the national policies. The Office of Defender Services (ODS) works through the
94 CJA panel attorney district representatives and the federal defenders (in the
90 districts served by a defender) to communicate changes in national policy
guidance and to inform us as to the possible need for modifications.
On the legal training side, with the approval of the Defender Services
Committee, the ODS Training Branch last year sponsored over 20 national and
regional training programs, attended by close to 2,000 panel attorneys. The
programs are designed to reach attorneys with varying levels of experience, and
are tailored to current issues, such as law and technology and forensic
evidence. In addition, federal defenders sponsored more than 300 local training
programs for their panels.
A perennial problem is presented by the sheer numbers of panel attorneys,
estimated at between 12,000 and 13,000 annually nationwide. How can you reach
them? Some distance learning options are being utilized, including a website
maintained by the Training Branch, and others are being explored. Resource
counsel with specialized areas of expertise, such as federal death penalty and
federal habeas corpus, are also available to panel attorneys.
Q: Is the Judiciary seeking an increase in the hourly
rate for panel attorneys in 2008?
A: Yes. As I mentioned earlier, the noncapital panel
attorney rate continues to be problematic, and the need for a rate increase ties
in with your question regarding the availability of qualified counsel. It also
implicates fairness; we should pay a rate that covers overhead and provides
reasonable remuneration. And I mean fairness not just to the panel attorneys,
but to their clients. People who face the exposure the average federal defendant
now faces deserve a capable and experienced criminal defense attorney,
proficient in federal criminal practice.
For FY 2008, the Judiciary is requesting that Congress fund an increase in
the noncapital hourly rate from $94 to $113 (and in the capital rate from $166
to $169). The $113 figure is less than the statutorily authorized level of
approximately $133, and reflects the Judiciary’s recognition of likely
limitations on resources.
Q: Cost containment has become the watchword throughout
the Judiciary. But how do you contain costs and also provide fair
A: Our committee has a healthy respect for the need to
contain costs and for accountability. It is a bit of a balancing act, as we look
for economies without compromising quality. We are ever mindful that the
resources of the government in bringing prosecutions are substantial, to put it
mildly. As a former federal prosecutor, I know that those resources are not
defined by the budget of the Department of Justice, but also include support
from federal, state, and local law enforcement agencies.
That said, our committee was engaged in cost containment even before the
formal institution of cost-containment initiatives by the Executive Committee. A
prime example is our annual review of individual FDO budgets and grants and
staffing levels and the monitoring of their spending throughout the year. In my
experience, federal defenders are extremely responsible stewards of their
Another of our cost-containment efforts focuses on case budgeting. We looked
at the fact that approximately 3 percent of panel attorney representations under
the CJA account for approximately 33 percent of the dollars expended in panel
cases. The CJA Guidelines call for judges to require attorneys to prepare
budgets in federal death penalty cases, capital habeas corpus cases, and
Under a three-year pilot program that began early this year, the Second,
Sixth, and Ninth Circuits have each hired a circuit case-budgeting attorney to
coordinate case-budgeting efforts throughout the circuit. The expectation is
that costs will be contained because they will be considered at the outset of
the case and again as necessary as the case progresses. Defense costs will be
anticipated, substantiated, monitored, and, where appropriate, limited, before
they are incurred. As another part of our case budgeting initiative, ODS has
contracted with two experienced litigators to provide objective case-budgeting
advice to any judge who needs it. I recommend the wonderful new videotape on
case-budgeting, which was expertly produced by the Federal Judicial Center in
consultation with ODS. It is available on the J-Net.
In another cost-containment effort, our committee, with the support of Chief
Judge Tom Hogan, chair of the Executive Committee, and Judge Paul Cassell, chair
of the Criminal Law Committee, has tried hard to limit unnecessary defense costs
in federal capital cases. Almost 80 percent of the cases eligible for the death
penalty result in decisions by the Department of Justice not to seek capital
punishment. But those decisions take many months, sometimes more than a year,
and in the meantime there are expensive mitigation investigations, which Supreme
Court case law requires defense counsel to conduct. A substantial percentage of
those “no-seek” cases can be identified early in the process. We have worked
with the Department in an effort to speed up its “no seek” determinations where
it seems likely that the death penalty will not be sought—without prejudice to a
longer, more deliberative authorization process in closer cases. We’ve made some
progress in the recent revision to the Department’s death penalty protocol, but
much greater progress is possible. We’ll keep pushing.
Q: In the long term, what do you see as the most
challenging issues for the Defender Services program?
A: Our biggest challenge is getting the hourly rate we
pay CJA panel attorneys in noncapital cases raised substantially. Until we do,
the disparity between the quality of federal defender representation and panel
attorney representation will continue to grow.
We of course have many other challenges. Our federal defenders are
excellent—they are the flagship of our program—but we cannot take that for
granted. We have tightened their budgets and imposed hiring freezes on them.
They can’t reasonably be expected to continue to do more with fewer resources.
They need the continued support of the Judiciary and the Congress, not just for
the sake of the clients the defenders represent, but for the sake of our
criminal justice system.
We need to work with other components of the Judiciary to implement a system
for filing vouchers electronically. We need to continue our training efforts,
generally and with an eye toward evening out the quality of representation
provided by panel attorneys. We need the continued support of the Budget
Committee and the Office of Finance and Budget in the AO in our effort to
educate the members and staff of the relevant Senate and House Appropriations
subcommittees about our program; our committee firmly believes that the more
they know about what our program does and how it does it, the more likely we are
to get the funding the Judiciary requests for us. We need to partner effectively
with other committees of the Judicial Conference to address matters of joint
There are many other challenging issues, but I also think it’s important not
to lose sight of where we are. Sadly, the promise of Gideon v. Wainwright has
not been fulfilled by some of our state indigent defense systems. Indeed, in
several respects, particularly in the capital habeas arena, our program pays a
heavy price for that. But most observers of our federal program agree that it is
well managed and, despite its problems, delivers the effective representation
the Sixth Amendment guarantees. We can always do better, and we should never
stop trying to do better, but the fact is, our program has become a model not
just for the states, but for countries around the world. Maybe our biggest
challenge is to recognize that and to do everything we can to keep it that