In accordance with the Sixth Amendment to the United States Constitution, the federal judiciary has historically appointed counsel in federal criminal proceedings for those unable to bear the cost of representation. Prior to the enactment of the Criminal Justice Act (CJA) of 1964, however, there was no authority to compensate appointed counsel for their services or litigation expenses.
The enactment of the CJA of 1964 and its subsequent amendment in 1970 established a comprehensive system for appointing and compensating lawyers to represent financially eligible defendants in federal criminal proceedings. The CJA of 1964 authorized payment of hourly compensation rates and reimbursement of reasonable out-of-pocket expenses for appointed lawyers. It also authorized payment of expert and investigative services necessary for an adequate defense. In 1970, the CJA was amended to authorize districts to establish Federal Public Defender Organizations (FPDOs) and Community Defender Organizations (CDOs) as additional options for providing defense counsel in those districts (or combinations of adjacent districts) where at least 200 persons annually require appointment of counsel. Today there are 79 authorized federal defender organizations that employ more than 3,300 lawyers, investigators, paralegals, and support personnel and serve 90 of the 94 federal judicial districts.
In fiscal year 2011, nationally the courts and FDOs processed more than 150,202 vouchers for over 9,205 attorneys and 5,006 experts and other service providers in the defense of 85,428 representations.
Each district court, with the approval of the judicial council of the circuit, is required to have a plan for furnishing representation for any person financially unable to obtain adequate representation in a federal criminal case. Prior to approving the plan for a district, the judicial council of the circuit shall supplement the plan with provisions for representation on appeal. [18 U.S.C. § 3006A(a)] [Guide, Vol. 7, § 210.10.10(a)]
Each district's plan must provide for representation of eligible persons in the circumstances set forth in 18 U.S.C. § 3006A(a)(1) and (2) and specify how such representation will be delivered. [Guide, Vol. 7, § 210.10.10(c)]
A person for whom counsel is appointed shall be represented at every stage of the proceedings from initial appearance through appeal, including ancillary matters appropriate to the proceedings [18 U.S.C. § 3006A(c)]. At the outset of a capital case, as required by 18 U.S.C. § 3005, courts should appoint two attorneys, at least one of whom is experienced in and knowledgeable about the defense of death penalty cases. If necessary for adequate representation, more than two attorneys may be appointed to represent a defendant in a capital case.
For habeas corpus proceedings, a financially eligible person seeking to vacate or set aside a death sentence in proceedings under 28 U.S.C. § 2254 or 28 U.S.C. § 2255 is entitled, under 18 U.S.C. § 3599(a)(2), to appointment of one or more qualified attorneys. [18 U.S.C. § 3005] [18 U.S.C. § 3599(a)(1)-(2)] [Guide, Vol. 7, § 620.10.10-620.10.20].
Counsel providing representation under the plan shall be selected from a panel of attorneys designated or approved by the court, or from a bar association, legal aid agency or defender organization furnishing representation under the plan [18 U.S.C. §§ 3006A(a)(3) and (b)] [Guide, Vol. 7, § 210.10.20]. The administration and management of the panel should be centralized in one organizational element (such as the clerk's office or, where appropriate, the federal defender organization) to ensure that counsel is appointed as expeditiously as possible, appointments are equitably distributed, and information on availability of counsel is maintained. [Guide, Vol. 7, § 210.30.40]
The "Model Criminal Justice Act Plan” and “Model Plan for the Composition, Administration and Management of the CJA Panel” are included as Appendix 2A and Appendix 2B of the CJA Guidelines.
The Vera Institute of Justice, a non-profit entity, conducted two contract studies for the Administrative Office of the United States Courts (AO), focused on the management and administration of CJA panel attorney programs at the district and circuit levels. The first Vera report, entitled “Good Practices for Federal Panel Attorney Programs - A Preliminary Study of Plans and Practices” (December 2002), identified suggestions for improving the selection, appointment, compensation, and training of panel attorneys at the district court level. The second report, entitled “Good Practices for Panel Attorney Programs in the U.S. Courts of Appeals” (January 2006), offered recommendations for enhancing appeals court CJA programs in areas such as continuity of counsel, the use of circuit CJA panels and FDO appellate specialists, and compensation review. These two related documents may be found on the J-Net or the U.S. Courts website: (1) Core Principles for Criminal Justice Act (CJA) Panel Management and Administration, and (2) Suggested Good Practices for Panel Attorney Programs in the U.S. Courts of Appeals.
Maximum Hourly Panel Attorney Compensation Rates. The CJA establishes maximum hourly attorney compensation rates for capital and non-capital cases. Click here for current hourly compensation rates.
Case Compensation Maximums. The CJA limits the total compensation payable, per panel attorney, for non-capital cases (exclusive of expense reimbursements), based on the type of representation and proceeding - e.g., for felonies, misdemeanors, and for appeals. Click here for current case compensation maximums. Payments exceeding these amounts may be authorized for extended or complex representations, where the presiding judge certifies they are necessary to provide fair compensation and the chief judge of the circuit (or circuit judge delegate) approves. The attorney case compensation maximum increases simultaneously with changes in the maximum hourly compensation rate. [18 U.S.C. § 3006A(d)(2)-(3)]
Compensation Limits for Services Other than Counsel. For service providers (other than appointed counsel) in non-capital cases, payments exceeding $ (exclusive of expense reimbursements) may be authorized for services of an unusual character or duration, where the presiding judge certifies they are necessary to provide fair compensation and the chief judge of the circuit (or circuit judge delegate) approves. [18 U.S.C. § 3006A(e)(3)]
For capital representations, payments for fees and expenses for investigative, expert, and other service providers may exceed $ (per case), if the presiding judge certifies that excess payments are necessary to provide fair compensation for services of an unusual character or duration, and the chief judge of the circuit (or circuit judge delegate) approves. [18 U.S.C. § 3599(g)(2)]
Designated Payment Approval Authority. A judge determines whether the amounts claimed by attorneys or other service providers should be approved as “necessary and reasonable to provide adequate representation.” (In some districts, an authorized delegate such as a supervisory attorney makes this determination for claims that do not exceed the case compensation maximum.) Where “excess” compensation above the case maximum is requested, at least two judges are involved in evaluating the claim: (1) the presiding judge who certifies that an excess amount is necessary, and (2) the chief judge of the circuit (or circuit judge delegate), who reviews the voucher and must approve any excess payment. [18 U.S.C. § 3006A(d)(3)]
Limits on Obtaining Services without Prior Authorization. Prior authorization from the court is required for services other than counsel; however, up to $ per case, excluding expenses, may be expended without prior authorization. Fees expended on services with prior authorization. Fees expended on services with prior authorization do not count towards the "$ without prior authorization." Panel attorneys may obtain investigative, expert, and other services in excess of the $ without prior authorization if the services are later approved by the court in the interests of justice, upon a finding that timely procurement could not await prior authorization. [18 U.S.C. § 3006A(e)(2)] [Guide, Vol. 7, § 310.20.30]
The judiciary's defender services appropriation, as funded by congress, includes funds for the compensation and reimbursement of expenses of CJA panel attorneys and others who furnish services under the CJA. These funds are separate and apart from the funds that support court operations. Payments are disbursed centrally by the Administrative Office of the United States Courts (AO), based on the amounts approved by the appropriate judicial authority.
The panel attorney appropriation is calculated for three types of representations: non-capital, capital prosecution, and capital habeas corpus. Requests to increase the capital and non-capital panel attorney hourly compensation rates are approved first by the Judicial Conference and become effective only if funded by congress.