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September 9, 2015

"Federal Indigent Defense 2015: The Independence Imperative"

The title of this post is the title of this notable new report released today by the National Association of Criminal Defense Lawyers. Here is a summary of the reports contents via excepts from this NACDL news release:

After over 18 months of study, more than 130 individuals interviewed (including federal judges, federal defenders, Criminal Justice Act (CJA) panel attorneys, Administrative Office of the U.S. Courts (AO) personnel, and others, representing 49 states and all federal judicial circuits), hundreds of documents reviewed, and surveys conducted, the National Association of Criminal Defense Lawyers (NACDL) today officially releases a major report — Federal Indigent Defense 2015: The Independence Imperative.  The report, adopted by NACDL's Board of Directors at its recent annual meeting, reflects the significant work of NACDL's Task Force on Federal Indigent Defense and offers "Seven Fundamentals of a Robust Federal Indigent Defense System," which are set forth below.

The Task Force was directed to examine broadly the federal indigent defense system, covering the entire manner in which the federal indigent defense system operates.  That said, over the past few years, several troubling developments in the administration of the nation's federal indigent defense system have highlighted its lack of independence. From the severe funding cuts and resulting systemic damage during sequestration in the fall of 2013 to the AO's demotion of the Defender Services Office from a "distinct high-level office" within the AO to its placement as one of the judiciary's many "Program Services," like Probation and Pretrial Services or Judiciary Data and Analysis, to the ways in which the lack of independence has played a key role in preventing federal defenders and panel attorneys from appointment to aid clients as part of a historic clemency effort undertaken by NACDL and others, the report documents the deficiencies of the current system.

The report also focuses the day-to-day adverse consequences of a system that is wholly at odds with the very first principle of the American Bar Association's Ten Principles of a Public Defense Delivery System — "The public defense function, including the selection, funding, and payment of defense counsel, is independent."  The report details that many panel lawyers are forced to endure long delays to receive payment for their services and often face arbitrary cuts at the hands of judicial officers whose decisions need not be explained and cannot be challenged. The report also explores concerns regarding the methods by which counsel appointments are made in individual cases, as well as those inherent in appointments to serve on CJA panels, among other matters.

As explained by NACDL President E.G. "Gerry" Morris, "At his confirmation hearing, Chief Justice John Roberts explained that the role of a judge is like an umpire, ‘to call balls and strikes and not to pitch or bat.' This important report reveals that in today's federal indigent defense system, the umpire is doing far more than that. And we all know that umpires should not be deciding how, when, and under what circumstances players get paid or on which team they play."

NACDL Executive Director Norman L. Reimer said: "While there is much to be admired in the federal indigent defense system, its operation — unlike the prosecutorial function — under the structure of the judiciary, together with the seismic events of recent years — sequestration, demotion, and the clemency initiative, make a compelling case for greater independence."

NACDL's Seven Principles of a Robust Federal Indigent Defense System:

  • Control over federal indigent defense services must be insulated from judicial interference.
  • The federal indigent defense system must be adequately funded.
  • Indigent defense counsel must have the requisite expertise to provide representation consistent with the best practices in the legal profession.
  • Training for indigent defense counsel must be comprehensive, ongoing, and readily available.
  • Decisions regarding vouchers (i.e., payment to panel attorneys) must be made promptly by an entity outside of judicial control.
  • The federal indigent defense system must include greater transparency.
  • A comprehensive, independent review of the CJA program must address the serious concerns discussed in this report.

September 9, 2015 at 01:28 PM | Permalink


I haven't read the report yet but wonder if it mentions the lack of whistle-blower protection for Federal Public Defender employees. Unlike employees of the U.S. Attorney's Office (and of almost all other federal agencies), FPD employess have no statutory whistle-blower protection. The lack of such protection is due to the status of FPD offices as part of the judiciary.

Posted by: once an AFPD | Sep 9, 2015 6:27:29 PM

How about additional Principles.

1) Do not fraternize with prosecutors.

2) Always attack the prosecutor personally, starting with total e-discovry on the personal and work electronic instruments of the prosecutor. The justification is to seek evidence of bias, racial, gender, party affiliation, class envy, etc.

3) Always attack the judge personally, after the first adverse ruling on a defense motion. Same method and justification.

4) Bring the criminal justice system down, by seeking trial for all defendants that are factually innocent or whose malum prohibitum offense caused no harm. These regulatory lawyer gotchas are crimes themselves.

5) Under no circumstance should a defense attorney serve as messenger for the prosecutor, nor advocate, nor pressure a defendant to accept a plea deal.

6) After Padilla, it is a per se professional standard of due care to inform the client of all collateral and civil consequences of accepting a plea offer. Web sites make it inexcusable to fail to do so. For example, this state by state database by the ABA.


7) Change the professional rating system from the case clearance rate to the accuracy rate. How many innocent defendants had their charges dropped or were found not guilty?

8) Follow up studies. What happens to defendants after the job of the public defender is done? If feed or freed earlier and they get killed by overdose, murder, or harm others, not a good outcome. Those harsh outcomes have the foreseeability of planetary orbits. That makes the public defender fully responsible for them

Posted by: Supremacy Claus | Sep 10, 2015 8:22:14 AM

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