Containing Costs While Delivering Effective Representation

The mission of the Defender Services program is to ensure that the right to counsel guaranteed by the Sixth Amendment, the Criminal Justice Act (CJA), and other congressional mandates is enforced on behalf of those who cannot afford to retain counsel and other necessary defense services. By fulfilling its mission, the Defender Services program helps to maintain public confidence in the nation’s commitment to equal justice under law and ensure the successful operation of the constitutionally-based adversary system of justice by which both federal criminal laws and federally guaranteed rights and liberties of all citizens are enforced.

The Judiciary has no control over the number of individuals for whom it must provide services. This is a function of congressional action, Department of Justice policies, and U.S. attorney practices. However, the Judiciary shares congressional concerns regarding the growth in overall Defender Services spending. Judiciary studies undertaken to address these concerns reveal that, overall, costs are in line with the increase in the number of representations, the increasing proportion of capital prosecutions and capital habeas representations, and the cost incurred in a handful of extraordinarily expensive representations each year. The Defender Services program continues to work to identify “best practices” and institute procedures designed to ensure that CJA representation is both high quality and cost-effective, including the following:

• Developing a comprehensive performance measurement system to better assess the value received for the Defender Services program dollar.
• Studying federal death penalty cases to identify specific steps which could be taken in order to ensure that costs remain within reasonable limits. The Judicial Conference Committee on Defender Services’ Subcommittee on Federal Death Penalty Cases conducted a year-long study of the cost, availability, and quality of appointed counsel in federal death penalty cases. The subcommittee collected qualitative and quantitative information from many sources, including the Department of Justice, which provided data on selected costs of prosecuting federal death penalty cases. The subcommittee, in its comprehensive report to the committee, concluded that “overall, the average cost of representation is reasonable in relation to the obligations imposed on defense counsel and the costs of prosecuting such cases.”
• Improving management of the costs of capital habeas corpus cases by (1) encouraging courts to require counsel to submit proposed litigation budgets for court approval before commencement of representation and employing case management techniques commonly used in complex civil litigation and (2) urging each circuit judicial council to establish a special process for the review of any state death penalty habeas corpus cases within the circuit in which attorney compensation exceeds $100,000.
• Implementing budgetary procedures to control federal defender organization spending, such as (1) creating a special Judicial Conference Committee on Defender Services Subcommittee on Budget and Grant Requests to allow for heightened review of federal defender organization funding requests; (2) holding federal defender organizations accountable for annual workload projections as measured by caseload per attorney; and (3) requiring Administrative Office approval before filling assistant federal defender positions.
• Conducting a pilot project to explore the benefits of using a supervisory attorney to assist with administering the panel of private attorneys accepting court appointments and with reviewing payment claims submitted by attorneys and other service providers.
• Assessing the management of federal defender organizations to help the offices improve the effectiveness and efficiency of their operations, and collect and disseminate to all offices information regarding exemplary procedures, “best practices,” improved processes, and enhanced internal controls.
• Replacing the out-moded system for making compensation payments to private panel attorneys and expert service providers with a more efficient one that will enhance financial accountability and integrity. The new system will improve significantly the timeliness, type, and quality of financial data used to manage and evaluate the Defender Services program.
• Developing, as a part of the Judiciary’s January 1998 report to Congress on the Federal Defender program, a list of suggested cost containment and “best practices” recommendations that draw upon the contributions of various internal Judiciary groups as well as external criminal justice experts. The Judiciary is exploring mechanisms for implementation of many of these recommendations. In addition, AO staff have met with Department of Justice representatives regarding these initiatives. As a result, an AO/Department of Justice Working Group will be established to explore methods to maximize the use of technology in order to reduce costs.