Quality Representation Is Goal of Defender Services Committee

Judge Robin J. Cauthron

Judge Robin J. Cauthron is chair of the Judicial Conference Defender Services Committee. She has served on the District Court for the Western District of Oklahoma since 1991.

_Q:When TTB last spoke with you, early in 1999, the Committee on Defender Services, with the assistance of various other entities, was engaged in a strategic planning process for the Defender Services program. What is the state of the program as a whole, and the status of the strategic planning efforts in particular?

_A: The Defender Services program provides representational services to an increasing number of individuals each year. In fiscal year 2000, federal defenders and Criminal Justice Act (CJA) panel attorneys closed over 117,500 cases. The program's representational services are consistently recognized for their quality and are furnished at a cost below market rates. The strategic planning process helps us focus on identifying the program's challenges and the best ways to meet them. The strategic planning process, which is designed to assess and improve the performance of the program in a regular, systematic manner, has continued to progress. In December 2000, the Committee approved an Outline of the Strategic Plan for the Defender Services Program. The Strategic Plan Outline includes the program's mission, four goals, and strategies designed to achieve those goals. Stated generally, the goals are to provide representational services that are timely, of high quality, and cost effective; and to preserve the independence of the criminal defense function. The Strategic Plan Outline also identifies performance measures to be used to evaluate the degree to which each strategy is effective in accomplishing the program's goals. Though we need to determine what resources will be necessary to achieve all of the strategies adopted, we have begun implementation of some of them.

_Q: What are some of the challenges or problems the Defender Services program currently is facing?

_A:We have been actively pursuing increases in the CJA compensation rates for panel attorneys that are both fair and sufficient to attract and retain lawyers qualified to provide representation in federal courts. The program also has begun a review of the training provided pursuant to the CJA to those who furnish representation. Death penalty representation represents another challenge, both in federal capital habeas corpus cases and federal capital trials. Surely no one can question the importance of providing quality representation and adequate resources for the defense of those charged with crimes, particularly in capital cases. There are thousands of persons on state death rows who have the right to federal habeas corpus review of their convictions and sentences, and the right to counsel to assist them. When the quality of the defense representation and other resources provided at the state level in capital cases are poor, it places an additional burden on the lawyers representing petitioners in federal capital habeas corpus cases, as well as on the federal courts hearing those cases. Also, for several years, the number of federal capital prosecutions has been increasing, placing greater financial demands on the Defender Services program and creating a need for additional qualified lawyers to handle these cases. Through our strategic planning efforts, we are attempting to develop strategies for obtaining adequate resources and providing quality representation at a fair and reasonable cost in capital cases.

_Q:Panel attorney rates were increased by $5 in FY 2000 and again in FY 2001, to $75 in-court and $55 out-of-court in most judicial districts. Why is an increase to $113 needed?

_A:The $113 rate would simply restore the value in current dollars of the $75 rate authorized by a 1986 amendment to the CJA, by adjusting for wage inflation as the amendment provided. It is the government's obligation under the Sixth Amendment to the Constitution to furnish effective assistance of counsel to financially eligible persons in most criminal cases. The current hourly rates are unfair and too low to enable district courts to recruit and retain a sufficient number of qualified and experienced counsel for CJA appointments. While helpful, the recent $5 increases still leave the hourly rates at a level that does not cover the overhead costs of many private panel attorneys. The degree of specialization required by federal criminal law has reduced the pool of available qualified attorneys, and many of those attorneys whose experience is needed in federal court simply are not willing to accept appointments, particularly in protracted and complex cases, at the current rates of compensation. Understandably, lawyers have become increasingly reluctant to undertake CJA cases at considerable personal financial sacrifice. Reliance on pro bono representation has placed too great a financial burden on the small group of specialized practitioners who provide representation for CJA-eligible defendants. The burden on these attorneys is exacerbated by the facts that the number of CJA cases has grown by more than 500 percent since 1967, the first full fiscal year of the program's operation, and the average number of hours expended by attorneys per CJA appointment has increased substantially over a similar period of time.

_Q:The number of judicial districts served by federal defender organizations (FDOs) has grown over 70 percent, from 46 to 80 districts, since 1989. Why?

_A:There is one consistent theme underlying the decision by district courts to establish FDOs—the unavailability of a sufficient number of qualified and experienced private attorneys to accept CJA appointments. Federal defender lawyers are full-time federal criminal law specialists. District courts have created FDOs to provide quality lawyers for the growing number of defendants eligible for appointed counsel; to improve the quality of representation, including serving as a resource for panel attorneys; and to relieve the court of much of the administrative burden and costs associated with the panel attorney program.

_Q:With the increase in the number of federal defender offices, is there still a need for panel attorneys?

_A:The reliance on panel attorney representation continues to increase, even with the large growth in the number of FDOs, because the total number of cases grows yearly. Due to conflicts of interest, federal defenders cannot represent each defendant who is eligible for a court-appointed lawyer, and the CJA requires that private attorneys receive a "substantial proportion" of the appointments. Nationally, panel attorneys receive approximately 35 percent of the CJA appointments. Our appointed counsel system thus rests on two pillars, and both must be supported properly.

_Q:Overall, what is the quality of legal services provided by the Defender Services program, and, to the extent it is necessary, how is the Judiciary responding to the need to attract lawyers who can provide high-quality representation?

_A:Although it is difficult to measure the quality of service provided by a lawyer, the Judiciary is attempting to monitor whether courts and clients are being well-served by CJA attorneys. One measure agreed upon as an indicator of quality is the collective opinion of people who observe the attorneys in court every day and who rely on their work to fulfill the obligations of the criminal justice system. During 1997 and 1998, nearly all U. S. district court chief judges were interviewed on the subject of the quality of representation provided by the federal defenders and panel attorneys. Over 90 percent of these judges reported that FDO attorneys who represent defendants under the CJA provide "very good" or "excellent" services. There are several reasons which account for why FDO services are so highly rated. FDOs offer salaries that are comparable to those of federal prosecutorial offices and sufficient to attract quality lawyers and other staff. FDOs employ attorneys who specialize full-time in federal criminal law, know the intricacies of the sentencing process, receive regular training by the Administrative Office and the Federal Judicial Center, and are accustomed to dealing with the other components of the criminal justice system, i.e., United States attorneys' and probation and pretrial services offices, law enforcement agencies, and the courts. They also have trained investigators on staff and can more readily obtain expert services than panel attorneys. The quality of representation provided by CJA panel attorneys has been consistently rated as less favorable than that furnished by FDO lawyers. It appears, though, that FDO attempts to enhance panel attorney representation by providing panel counsel with training and other assistance are successful. In districts with FDOs, 65 percent of the judges rated the quality of services provided by panel attorneys as very good or excellent (15 percent said they were excellent and 50 percent said they were very good). In contrast, in districts without FDOs, only 50 percent of the judges rated the quality of services provided by panel attorneys as very good and none rated the quality of services provided by panel attorneys as excellent. As I noted earlier, we are continuing, through our strategic planning process, to try to improve the quality of representation provided by panel attorneys. We are also exploring other ways to assess the quality of the representational services provided by the program.

_Q:What steps are being taken to contain costs in all cases?

_A:First, it is important to recognize that the criminal defense function is largely a reactive one. As a result, many factors beyond the program's control, such as the number of law-enforcement agents, Assistant U.S. Attorneys, law-enforcement initiatives, and arrests and prosecutions, drive the costs associated with the defense function. For example, when the government decides to prosecute more federal death penalty cases, those cases must be defended and there are consequent costs, although they are generally substantially less than those of the prosecution. Having said that, the Judiciary is sensitive to the importance of implementing the constitutionally guaranteed defense function in a manner that, without diminishing the quality of defense representation, is cost effective. In all CJA cases, both attorney compensation and service provider claims are reviewed not only for mathematical and technical accuracy but also for reasonableness. If an amount claimed exceeds certain statutory thresholds, payment is made only if (1) the court certifies that the case involves extended or complex representation and the amount certified is necessary to provide fair compensation, and (2) the chief judge of the circuit approves the expenditure. Additionally, in capital cases, Judicial Conference policy favors application of case management and case budgeting techniques to ensure that costs are reasonable. The Judiciary is making increasing use of these tools, and we hope to assess the impact of their use on costs. Beyond statutory requirements and Judicial Conference policies, the third goal that the Committee has adopted for the program through our strategic planning process is to "provide cost-effective services, limiting increases in cost to those due to inflation and those necessary to respond to changes in the law or changes in prosecutorial, judicial, or law enforcement practices." The Strategic Plan Outline contains strategies intended to accomplish that goal and, as our strategic planning efforts advance, we will continue to look for ways to furnish quality services at a reasonable cost.