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Fifty years ago—August 20, 1964—the President signed into law the Criminal Justice Act (CJA), which for the first time assured professional legal counsel in federal courts by paying an hourly fee for court appointed lawyers. Six years later, Congress established a full-time federal defender service within the judicial branch.

Together, the measures created the modern federal defenders system, and helped secure a right that Americans now take for granted: meaningful legal representation even for those who can't afford it.

Many defenders and judges call the CJA a shining success. "It's been called the gold standard of public defense," said U.S. District Judge Catherine C. Blake, chair of the Judicial Conference's Defender Services Committee. "The Criminal Justice Act and the right to counsel have greatly strengthened the fairness and integrity of our system of justice."

Today, nearly 90 percent of federal criminal defendants are aided by lawyers, investigators and experts paid for under the Criminal Justice Act. Hiring in defenders' offices is intensely competitive, and the quality and vigor of their representation has earned the admiration of federal prosecutors, including U.S. Attorney General Eric H. Holder Jr.

But the defenders' system, like the rest of the federal Judiciary, also is challenged by funding issues, and by greatly toughened sentencing laws, which many defenders say punish the accused for asserting their legal right to a jury trial.

"The Criminal Justice Act has been astonishingly successful," said U.S. District Judge John Gleeson, a onetime federal prosecutor who also previously chaired the Defender Services Committee. "The federal defenders are the very best lawyers in the courthouse, and that includes retained counsel. But there's a risk that we as a branch ... don't really know how fragile it might be."

Right to Counsel: Early History

Many Americans believe the right to a court-appointed lawyer began with Gideon v. Wainwright, a famed 1963 Supreme Court decision in which Clarence Earl Gideon, a Florida drifter, argued that he could not be sent to prison without a lawyer to argue his case.

But the right to appointed counsel has been centuries in the making. The seeds were planted in colonial times, long before the Bill of Rights. 

Although English courts explicitly banished lawyers from felony trials, several colonial charters declared a right to hire lawyers, and 12 of the 13 former colonies specified such a right before the U.S. Constitution was drafted. In 1791, the Sixth Amendment made a right to counsel the law of the land.

Despite those guarantees, the Constitution was silent on a critical question: what happens when a defendant can't afford a lawyer? More than 140 years passed before the Supreme Court began to address that void.

A 1932 case, Powell v. Alabama, concerned nine black teenagers accused of raping two white girls in Alabama. In just 12 days, they were indicted and then convicted, in trials each lasting just a few hours. Eight of the nine were sentenced to death, including a 13-year-old. None had a lawyer until a few minutes before their trial began.

In a 7-2 decision, authored by Justice George Sutherland, the Supreme Court overturned the convictions and declared for the first time that effective court-appointed counsel is a constitutional right. Although limited primarily to capital cases, the opinion eloquently described the plight of anyone charged with a serious crime.

"Even the intelligent and educated layman," Sutherland wrote, "requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence."

Six years later, in Johnson v. Zerbst, the court made appointed counsel a right in all federal criminal cases. The 6-2 opinion was written by Justice Hugo Black.

While important, the rulings provided no funding. Lawyers appointed by federal judges were not paid for time or expenses. Hiring experts or investigators to build a defense could be prohibitively expensive.

From 1937 to 1949, every Judicial Conference of the United States and every U.S. Attorney General tried to rectify that, urging that Congress compensate lawyers appointed in federal criminal cases. In 1952, the Judicial Conference called the lack of compensation "a serious defect in the Federal judicial system."

1963: The Breakthrough Year

Several versions of the Criminal Justice Act languished in Congress through the 1940s and '50s. Then support built dramatically in 1963.

In January, President John F. Kennedy told Congress, "The right to competent counsel must be assured to every man accused of crime in federal court, regardless of his means."

In February, the Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice, convened by Attorney General Robert F. Kennedy, recommended appointed counsel at every stage of a criminal proceeding, not just at trial, and expanding eligibility to anyone "financially unable to obtain an adequate defense."

In March 1963, the Gideon decision declared a right to appointed counsel in state felony cases. And in July, Senator Roman Hruska (R-Neb.) told a Senate Judiciary Committee hearing, "Our nation's concept of due process requires that poverty shall be no handicap in the defense of any person."

Robert Kennedy testified at that same hearing, and in a July 1963 newspaper op-ed, he wrote that the existing system "is unfair to defendants. It is a burden on private attorneys. It denies equal justice. It demands correction."

After a year of negotiating, the Criminal Justice Act was passed Aug. 7, 1964, providing hourly fees and expenses for court-appointed lawyers. President Johnson signed it into law on Aug. 20.

Six years later, Senators Barry Goldwater (R-Ariz.), Hruska, and Edward M. Kennedy (D-Mass.) co-sponsored a 1970 amendment that established federal defender organizations, which could hire full-time government defense lawyers.

"The personal freedom of the individual citizen is at stake in these cases," Goldwater declared at a 1969 Senate hearing, "and I want to be sure that his liberty does not become an accidental casualty to the size of his wallet."

Balancing the System

The Defenders Services program has grown in size and caseload. 

In 1973, 15 of the nation's 94 federal judicial districts were served by full-time defender offices. By FY 2013, that had grown to 91 districts. The system handled 54,000 representations in 1973, and nearly 230,000 representations in 2013. There are now about 1,300 full-time defenders, and about 12,000 panel attorneys, court-appointed private lawyers who handle cases for an hourly fee. 

The clients are diverse. In addition to infamous defendants, such as convicted bombers Ted Kaczynski and Timothy McVeigh, defenders say clients range from white-collar defendants charged with regulatory crimes to defendants barely equipped to understand their legal predicament.

The criminal charges are similarly diverse, including tax code violations, firearms offenses, bank robbery, racketeering, fraud, environmental crimes, child pornography, drug crimes, computer-based offenses, immigration offenses, major crimes committed on federal land and Indian reservations, and federal capital offenses, including terrorism.

Defenders say that, no matter who the defendant or what the crime, they serve the public by keeping the system balanced and holding the government to its burden of proof.

"We show the public that it's a fair system. The average Joe can think, 'If I get in trouble, I want this system,' " said Tom Hillier, who retired this year as Federal Defender after 38 years in the Western District of Washington. In situations where defenders believe constitutional rights are at risk, "we push back."

In interviews, federal defenders and panel attorneys say they are deeply passionate about their work—one called it "almost a compulsion."

Reuben Cahn, executive director of Federal Defenders of San Diego, Inc., the community defender office for the Southern District of California, said defenders must stay resilient in the face of overwhelming odds. "You can have all the commitment to social justice, but if you don't enjoy a fight, if you can't take a punch, you won't last."

Even when a guilty verdict is likely, defenders said it is essential to see clients as humans, not as stereotypes.

Katherian Roe, Federal Defender for the District of Minnesota, said her partial Native American heritage led her to want to defend clients from Indian reservations, and to make her staff ethnically diverse and able to win defendants' trust. In hiring lawyers, "I focus most on the ability to communicate effectively-not just with judges and lawyers, but with average people."

Defenders and their investigators also must look for critical extenuating circumstances that might reduce prison time, or even win outright freedom.

Early in her career, Cait Clarke, now Chief of the Defender Services Office at the Administrative Office of the U.S. Courts, represented a young person facing more than a decade of prison for allegedly selling drugs. On investigation, Clarke learned her client had a very low IQ, and that others were bribing him with lollipops to store drugs and money in his pockets.

The U.S. Attorney's Office declined to prosecute, and appropriate treatment programs were found. "Helping a client in and out of court while holding the government to its burden of proof was a great feeling for a defense advocate," recalled Clarke.

 

Combatting the 'Trial Penalty'

Such victories are rarer than ever, defenders say, because of tough sentencing laws enacted by Congress beginning in the 1980s. Mandatory minimum sentences, sentencing guidelines and other provisions have greatly increased defendants' potential exposure to long sentences, if convicted by a jury.

In practice, the result is a "trial penalty," many defenders say. Clients often plead guilty, even when they might have a winnable case, in exchange for avoiding charges that carry enhanced sentences. In recent years, about 97 percent of all federal criminal defendants have pleaded guilty, compared with 81 percent in 1980.

In a 2013 Yale Law Review article, David Patton, chief defender in the office that represents the Southern and Eastern Districts of New York, said the sentencing laws have created harsher outcomes today than in Gideon's time, despite far superior courtroom representation.

"I think the Criminal Justice Act is one of the greatest pieces of legislation ever when it comes to the federal criminal justice system," Patton said. "But when a client today decides whether to challenge the government's version of events, he faces the daunting prospect of five, ten, or twenty additional years in prison in exchange for exercising his right to a hearing or trial. The choice weighs heavily in favor of folding without a fight."

The Judicial Conference has long opposed mandatory-minimum sentencing, and efforts to reduce federal criminal sentencing have won significant support in Congress and from the Executive Branch.

The Defenders Services program also works to even the courtroom odds through continuing education and training for defenders and panel attorneys.

The National Litigation Support Team provides guidance on electronic discovery and complex cases, particularly in the areas of evidence organization, document management and trial presentation. The Death Penalty Resource Counsel Project, founded in 1992, provides information and expert lawyers to assist on complex capital cases.

Chip Frensley, chief of a group of panel attorney district representatives who advise the Defender Services Office, said defender trainings have strengthened the quality of representation by court-appointed lawyers, as has local screening of new hourly attorneys. Frensley, of Nashville, Tenn., said inclusion on the attorney panels is seen by many lawyers as an honor.

Resource Challenges

Another ongoing challenge has been resources.

In 1991, Congress authorized a committee to study the implementation of the CJA. In 1993, a committee headed by then-U.S. District Judge Edward C. Prado, who is now a member of the U.S. Court of Appeals for the Fifth Circuit, reported that fee payments were briefly suspended two straight years because money had run out. The committee cited "the rise in federal prosecutions of what were traditionally state cases."

The Judicial Conference and Congress accepted many Prado Committee recommendations: comparable pay for defenders and U.S. Attorneys' Office lawyers, establishing federal defenders' offices in any district that met certain caseload levels, better training and screening of attorneys, and higher compensation for panel attorneys.

But funding remained fragile at times, and reached a crisis during the 2013 sequestration. Defenders' offices lost more than 400 positions, more than 10 percent of the total, including 145 defense lawyers. Furloughs cost defenders staff about 20,000 workdays. On Sept. 1, 2013, the hourly rate for court-appointed attorneys was cut $15 an hour, an unprecedented move that was reversed on March 1.

In a July 2013 Washington Post op-ed, Attorney General Holder praised the federal defender program, and emphatically warned of the harm caused by funding cuts. "The federal defender system has consistently served as a model for efficiency and success. ... The majority of criminal cases prosecuted by the Justice Department involve defendants represented by well-qualified, hardworking attorneys from the federal defender offices."

Holder added, "These cuts threaten the integrity of our criminal justice system and impede the ability of our dedicated professionals to ensure due process, provide fair outcomes and guarantee the constitutionally protected rights of every criminal defendant."

Clarke said the impact of sequestration may take years to undo. Although the program was funded at the requested level in FY 2014, she said many experienced defenders and panel attorneys were lost during sequestration. Some private lawyers no longer accept CJA cases, she added, and some defender organizations have been slow to fill lawyer vacancies, for fear that cuts could occur again.

Clarke said the Judicial Conference's Defender Services Committee has offered strong support and strategic guidance in negotiating the fiscal crisis. "This knowledgeable group of judges are helping the Defender Services program rebuild after sequestration and developing forward-looking policies to lead this program into the future," Clarke said.

Judge Blake, Defender Services Committee chair, agrees that resources will be critical in coming years. But overall, Blake said, the Criminal Justice Act has "greatly strengthened the law's integrity," and will continue to do so.

"If we are to be in a moral position to punish people for violating the law, we must make sure we uphold and follow the law," Blake said. "The defenders are essential to doing that."

 

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