September 2007

 

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 2005.

Q: What are the mission and goals of the Defender Services program, and what role does the Committee on Defender Services play?

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 Office.

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 receive?

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 representation?

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 budgets.

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 noncapital “mega-cases.”

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 concern.

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 way.