Judge Emmett R. Cox (11th Cir.) was a district court judge in the Southern District of Alabama before being elevated to the Eleventh Circuit in 1988. He is chair of the Judicial Conference Defender Services Committee.
A: The defender services program oversees the provision and payment of counsel in criminal proceedings in the federal courts for people who cannot afford to hire their own attorney. Counsel is provided because the Sixth Amendment to the Constitution entitles a defendant to the effective assistance of counsel in criminal proceedings. A defendant who is unable to afford a lawyer must be provided one at government expense. Statistically speaking, in 85 percent, more or less, of the criminal cases in federal courts, a defendant will be unable at some point to pay his or her own lawyer and an attorney will have to be appointed and paid at government expense. In addition, acts of Congress allow and provide for the appointment and payment of counsel in some cases where state and federal inmates are challenging their convictions in post-conviction proceedings as being contrary to the Constitution or laws of the United States.
A: We have so many that we have to devote some time to prioritizing the issues that need to be addressed. In my view, the biggest challenges facing our committee today are in the death penalty area, where we face two big challenges. The first challenge is doing what we can to assure the availability of qualified counsel in these cases. The Anti-Terrorism and Effective Death Penalty Act of 1996 imposed for the first time statutes of limitations that require the filing of federal court challenges to state court convictions within certain limited time periods. As a result, a large number of these cases will be filed this year. There are a number of death-sentenced inmates around the country who do not have lawyers, and identifying lawyers--a sufficient number of lawyers, at one time, who are qualified to handle these cases--is a significant problem. Our committee is involved not only in efforts to assist courts in finding these lawyers but also in training these lawyers to handle the cases.
The other challenge we face in the death penalty area is controlling costs. Federal prosecutions where the death penalty is sought is a relatively new phenomenon in the federal courts, but the number of these cases is increasing. At the same time, the death row population in the states is growing. This means the cost of providing counsel in these cases is going to climb, despite our best efforts. Without our best efforts, these costs could overwhelm the appropriation for this program. We have a number of initiatives underway to try to help judges control costs and manage both the federal death penalty prosecutions and the proceedings in the federal courts challenging state court convictions and death sentences. However, all of these cases are complex and important matters that require a lot of lawyer time and a lot of expense to handle properly. At the same time, this program, like other programs, must operate on a budget.
Another issue that our committee has to face is trying to assure the availability of qualified counsel in non-death penalty cases, given that the hourly rates of pay for appointed lawyers are being eroded by inflation.
A: The Judicial Conference sought this $5 dollar increase last year as part of an overall plan to reach a national uniform rate of $75 per hour across the board by the year 2000. In 1986, authority was given to increase this rate to $75 in 16 high cost districts, and, in 1996, rates were increased to $45 out of court and $65 for in-court work. Except for those 16 high cost districts, however, there was no general increase between 1984 and 1996. Congress frustrated the strategy of a rate increase over a number of years when it refused to fund a $5 increase in FY97. Despite this setback, the Judiciary is again seeking a $5 increase in FY98.
The $5 increase last year does not solve the problem. In the opinion of the committee and the Conference, it is not adequate. We on the committee are convinced that the quality of representation is declining because the hourly rate of compensation has been severely eroded by inflation through the years. In some areas, $45 an hour barely covers overhead costs for lawyers. We're finding that there are fewer well-qualified lawyers who are willing to accept appointments in these cases, although we have no scientific way of measuring the quality of representation. We rely on what I would term anecdotal evidence, on what lawyers and judges tell us about what is happening in the program. We now are working on how to go about studying the quality of representation by panel attorneys in the federal courts.
A: We made a number of findings. The principal finding was that an institutional defender, like what used to be called a death penalty resource center and was later called a post-conviction defender organization, provided the best representation at the lowest cost in capital habeas cases, the proceedings in the federal courts challenging state court death sentences. We thought, though, that these organizations ought to move away from providing a great deal of help to private lawyers who were unfamiliar with death penalty litigation. Instead, we thought that the organizations should represent the inmates themselves, and eliminate the need for the involvement of inexperienced private lawyers. Of course they could still provide some assistance to private attorneys as necessary. Before the ink was dry on this report, however, Congress de-funded these defender organizations, which was its prerogative. That, however, required the courts to look for some other way to provide counsel. The Defender Services Committee is trying to help courts to do this.
The subcommittee also studied and made some recommendations on what could be done to reduce costs when private lawyers are appointed. We encouraged judges to develop case budgets. We suggested that the judge sit down with the inmate's lawyer and try to develop a budget for the legal and other services that would be required. With that approach, neither the court nor counsel would be surprised at the end of the case when the bill for fees and expenses came in. Another recommendation was that the courts handling these cases adopt case management techniques used in complex civil cases in an effort to better manage the case and control costs.
I think there is a consensus within the federal Judiciary that the best way to provide representation in capital habeas corpus cases, both from the standpoint of the quality of the representation afforded and the costs, is through an institutional defender; that is, a defender organization as distinguished from a private lawyer. Congress does not agree with that. It is an issue. We still need to address how best to serve the dual purpose of providing good representation and providing it at a reasonable cost. I would like to see Congress study the matter, with the hope that it would come to the same conclusion that the federal Judiciary has.
A: Part of the problem is that we have a moving target. Our committee has studied at some length what ought to be done in the death penalty representation area, but, as I say, the conclusions were rejected by Congress. Now we're studying the matter with the view of seeing what we can do under the present state of the law. Perhaps we will come up with some good ideas. I hope so. But new problems constantly arise. Five years ago, the implementation of sentencing guidelines transformed federal criminal practice. In the death penalty area, capital prosecutions, as opposed to capital habeas, have emerged as strong competition for domination of defense resources. As Congress continues to expand federal criminal jurisdiction, which it is now considering doing in the juvenile crime area, the demands on the defender services program and its resources will also change.