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Appointment of Counsel

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The Defender Services Program

The Sixth Amendment to the United States Constitution guarantees an accused the right to representation by counsel in serious criminal prosecutions. The responsibility for appointing counsel in federal criminal proceedings for those unable to bear the cost of representation has historically rested in the federal judiciary. Before the enactment of the Criminal Justice Act (CJA), however, there was no authority to compensate appointed counsel for their services or litigation expenses, and federal judges depended on the professional obligation of lawyers to provide pro bono publico representation to defendants unable to retain counsel.

In 1964, the CJA was enacted to establish a comprehensive system for appointing and compensating lawyers to represent defendants financially unable to retain counsel in federal criminal proceedings. The CJA authorized reimbursement of reasonable out-of-pocket expenses and payment of expert and investigative services necessary for an adequate defense. While it provided for some compensation for appointed counsel (CJA panel attorneys), it did so at rates substantially below that which they would receive from their privately-retained clients.

In 1970, the CJA was amended to authorize districts to establish federal defender organizations as counterparts to federal prosecutors in U.S. Attorneys Offices and an institutional resource for providing defense counsel in those districts (or combinations of adjacent districts) where at least 200 persons annually require appointment of counsel.

Today, almost fifty years since the CJA was enacted, there are 81 authorized federal defender organizations. They employ more than 3,100 lawyers, investigators, paralegals, and support personnel and serve 91 of the 94 federal judicial districts. There are two types of federal defender organizations: federal public defender organizations and community defender organizations.

Federal Public Defender Organizations
Federal public defender organizations are federal entities, and their staffs are federal employees. The chief federal public defender is appointed to a four-year term by the court of appeals of the circuit in which the organization is located. The Congress placed this appointment authority in the court of appeals rather than the district court in order to insulate, as best as possible, the federal public defender from the involvement of the court before which the defender principally practices.

Community Defender Organizations
Community defender organizations are non-profit defense counsel organizations incorporated under state laws. When designated in the CJA plan for the district in which they operate, community defender organizations receive initial and sustaining grants from the federal judiciary to fund their operations. Community defender organizations operate under the supervision of a board of directors and may be a branch or division of a parent non-profit legal services corporation that provides representation to the poor in state, county, and municipal courts.

Federal defender organizations, together with the more than 10,000 private "panel attorneys" who accept CJA assignments annually, represent the vast majority of individuals who are prosecuted in our nation's federal courts. CJA panel attorneys accept appointments in all CJA cases in the four districts not served by a federal defender organization. In those districts with a defender organization, panel attorneys are typically assigned between 30 percent and 40 percent of the CJA cases, generally those where a conflict of interest or some other factor precludes federal defender representation. Nationwide, federal defenders receive approximately 60 percent of CJA appointments, and the remaining 40 percent are assigned to the CJA panel.

Today, panel attorneys are paid an hourly rate of $126 in non-capital cases, and, in capital cases, a maximum hourly rate of $180. These rates, effective for work performed on or after March 1, 2014, reflect a repeal of the temporary emergency reduction (implemented in September 2013) to hourly CJA panel attorney rates and an increase consistent with the one percent Employment Cost Index adjustment for federal government employees effective on January 13, 2014. The rates include both attorney compensation and office overhead. In addition, there are case maximums that limit total panel attorney compensation for categories of representation (for example, $9,800 for felonies, $2,800 for misdemeanors, and $7,000 for appeals). These maximums may be exceeded when higher amounts are recommended by the district judge as necessary to provide fair compensation and the chief judge of the circuit approves.

The Judicial Conference of the United States promulgates policies and guidelines for the administration of the CJA, formulates legislative recommendations to the Congress, and approves funding requests and spending plans for the defender program as a whole and, through its standing Committee on Defender Services, budgets and grants for each defender organization. The policies and procedures of the Judicial Conference for the operation of the CJA are set forth in its Guidelines for Administering the CJA and Related Statutes.

Acting under the supervision and direction of the Judicial Conference, the Administrative Office of the United States Courts oversees the expenditure of funds appropriated by Congress; administers the federal defender and panel attorney program on a national basis; is responsible for training related to furnishing representation under the CJA; and provides legal, policy, management, and fiscal advice to the Conference and its committees, judges, defenders and their staffs, and panel attorneys. Program support for the CJA is provided by the Defender Services Office of the Administrative Office of the United States Courts, Department of Program Services.