Vol. 37, Number 4—April 2005

I N T E R V I E W

Committee Defends Independence
of Representation: An Interview with
Judge Patti B. Saris

In 1993, Judge Patti B. Saris was appointed to the U.S. District Court for the District of Massachusetts. Saris previously had served as an Assistant U.S. Attorney and later chief of the Civil Division for the U.S. Attorney’s Office in the District of Massachusetts; as a U.S. magistrate judge; and as an Associate Justice, Trial Court of Massachusetts, Superior Court Department. Saris has chaired the Judicial Conference Committee on Defender Services since July 2002.

Q: During your eight-year tenure on the Defender Services Committee, and almost three years as chair, how has the federal defender program changed?

A: Over the past eight years, the program has grown substantially, and my understanding has grown along with it. Between 1997 and 2004, annual Criminal Justice Act (CJA) representations have risen from approximately 91,800 to 163,300. Our yearly funding obligations during that time have climbed from $332.8 million to $627.1 million. So the growth, just in the funding and in the quantity of representations, has been enormous.

The number of federal defender organizations has also increased. In 1997, 73 districts were served by federal public or community defenders. In 2005, with the recent approval of four new organizations, that number is 89. There are only five districts that aren't served by a federal defender. The Committee on Defender Services supports having a defender presence in every district that has enough representations—but, of course, only if the local judges agree. Federal defenders are the flagship of the appointed counsel program.

Another significant change has been the rates of compensation for CJA panel attorneys. When I joined the Committee, the hourly rates in the District of Massachusetts were $65 for in-court time and $45 out-of-court, and that was true for most of the country. It's now $90 in every district across the United States. That has had a big impact on the quality of the attorneys we can attract and retain for CJA work.

The capital rate was just increased from $125 to $160/hour. To cope with the growth in the number of death penalty representations, we have put a huge emphasis on training and on providing support to courts and to attorneys through the Federal Death Penalty Resource Counsel program.

The emergence of the "mega-case" is a very important phenomenon that we're struggling to manage. The statistic that always captures my attention is that 10 percent of our panel attorney representations are consuming about 57 percent of our non-defender costs. The cases are getting bigger and more expensive, and pose a challenge for judges across the nation.

Q: The constrained fiscal year 2005 budget and the prospect of an even more austere FY 2006 has everyone looking for ways to contain costs. However, it would seem the workload of a federal defender's office or appointed panel attorney is hard to control. How can you control costs in the program?

A: When I first came on the Committee, our focus was on improving quality, and we didn't talk as much about the impact on the budget. Now, budgeting and cost containment are a huge part of what we discuss at every Committee meeting.

We've expanded the responsibilities of the Defender Services Committee's Budget Subcommittee, which reviews the individual budgets of each defender office. We've also instituted case budgeting, not only for the capital cases, but also for what we call the "mega-case." We've recommended seeking funds for a new position in the Office of Defender Services—essentially a consultant to judges—to respond to inquiries about case budgeting and pursue the development of more sophisticated cost-control mechanisms for services other than counsel.

Recently, we modernized and simplified the process for panel attorneys to be reimbursed for their use of computer-assisted legal research on behalf of their CJA clients. But before we put it in place, a pilot program was conducted to make sure it didn't inordinately tax our budget. The pilot demonstrated that the cost impact of implementation nationally would be negligible.

We're concerned, too, over the issue of voucher cutting. Judges have to review the vouchers of individual panel attorneys, and it is sometimes a very difficult task to determine how much time the attorney reasonably should have spent.

At the same time, we believe that we—through the Defender Services Committee and its Budget Subcommittee—must ensure that there are enough resources to cover defender services. Courts should not try to balance the Judiciary's budget at the expense of panel attorneys. That would be inconsistent with Judicial Conference policy to provide fair compensation to panel attorneys, and it will not actually help with the needs of the Judiciary in other areas.

Q: As part of the fiscal belt-tightening, the Defender Services Committee reduced funds this year to train defenders and panel attorneys. How important is the training function?

A: Training is critically necessary to maintaining proficiency in federal criminal practice. But having given very careful consideration to all our program needs and costs, as a temporary measure we reduced the training budget for fiscal year 2005 by 10 percent. This is not an ideal situation. We are by no means content with reductions in necessary training, but we are being responsive to the constrained budget environment.

Q: In recent years, in response to the Judiciary's requests, Congress has increased the rates paid to panel attorneys. Why were those increases so vital?

A: We were finding two things across the country: we were not able to keep qualified attorneys on our CJA panels, and we were having a difficult time attracting replacements. Originally, I thought the problem was limited to the urban areas where the overhead is high. That was partly true, but it was also a problem in rural areas. We found that many attorneys weren't willing to drive long distances for representation if they were only receiving $45 per hour for their out-of-court time. The national overhead averages are in the vicinity of $68 an hour. Panel attorneys were literally losing money on representations—some said they couldn't pay their rent and expenses for support staff. It was a stunning story.

I have to say that Congress was terrific. It recognized the problem and responded by increasing the rates. Data that is just coming in from statistically valid surveys are showing that the rate increase has made a difference in the availability of qualified counsel, although there is still need for higher compensation.

Q: Have the recent Supreme Court decisions in Booker and Fanfan regarding the federal sentencing guidelines affected federal defenders in any way?

A: Absolutely. We experienced some slowdown in sentencing last year, as you can imagine, because many judges and attorneys were waiting to see what was going to happen with the Booker/Fanfan case. Those sentencings will now be going forward, and we expect that there will be an impact on the workload of both federal defenders and CJA panel attorneys. In addition, inmates are calling to ask if they have any issues based on Blakely and Booker/Fanfan. Besides accommodating the additional number of hours required for appointed counsel, we have to address the substantial training needs in the post-Booker/Fanfan sentencing world.

Q: What new technologies and/or innovations could have the greatest impact on defender services? Are you encouraging technologies and innovations?

A: Of course, we have to be technologically proficient. Federal defenders and CJA panel attorneys need to maintain a skill level commensurate with the prosecutors, who are often quite adept at using technology in the courtroom. The Department of Justice has established training centers, and we see the prosecution's technological capabilities in our courtrooms. We've got to get panel attorneys to the point where they, too, are utilizing courtroom technology.

The Case Management/Electronic Case Files system is not the wave of the future—it's the reality of the present. We have some concerns, which we've been working on with other Judicial Conference committees, to ensure that technology initiatives do not impair the safety of clients or witnesses.

And we need to examine the potential for automating the CJA payment system, which still relies on manual completion of vouchers. While in the short term it may be expensive and difficult to do, in the long term we will be able to capture data better and make it less burdensome for those who process vouchers. That is a project I'd at least like to set in motion.