Who Signs The CJA Voucher?

At Volokh Conspiracy, Orin Kerr provides a copy of the report of the Ad Hoc Committee¬† To Review The Criminal Justice Act, of which he was a member. The crux of the problem is the same one that’s plagued the federal indigent criminal defense function forever, money. But the committee’s focus was on the mechanism for dealing with money, now vested in the hands of individual judges.

Here’s the basic idea. Our committee found that there is a pressing need to reorganize federal criminal defense. We concluded that judges have too much of a role in overseeing appointed defense lawyers. Federal judges are deeply involved in indigent criminal defense. They appoint lawyers under the CJA, appoint federal defenders, review voucher requests, approve experts, and the like. Someone needs to play that oversight role, of course. But as our report explains, we think the system would be better served if there were an independent agency serving that role rather than individual judges who are also presiding over the same cases. There’s just too much of a conflict when judges are playing both roles. And some judges aren’t the best at overseeing defense functions that they may not have the experience to evaluate.

There’s little reason to recite the concrete problems, voucher cutting, refusal to pay for investigators and experts, waiting for payment and, of course, that the money for CJA funding come through the judiciary’s budget,than the judges are more concerned that they get the right tone of marble in their courtrooms than whether the panel lawyers.

If you’re unfamiliar with the issues, read the Executive Summary of the report. This problem is nothing new, and recurs every few years when they fail to increase the CJA rates in any event.¬† The committee decided, unsurprisingly, that CJA shouldn’t be in the hands of judges, but handled by an independent “agency.” The word “independent” is used here very loosely.

My colleagues recommend that Congress should create a national defender commission modeled on the United States Sentencing Commission. Under their proposal, the national commission would be led by commissioners nominated by the President and confirmed by the Senate. No more than four of the seven commissioners could be from any one political party. No more than three could be judges.

Who doesn’t get excited at the prospect of a new federal agency, amirite? So the committee, other than Orin, concluded that a seven person commission would run the show, with two conditions, that no more than four be of the same political party and no more than three be judges. Do the math.

Orin dissented, suggesting a different approach.

In my view, it would be better for the commissioners to consist entirely of federal district court judges selected by other judges. Here’s one way to do it: The district judges of each regional circuit could vote for a representative among them to serve a term as one of the commissioners. To ensure an odd number of commissioners, you could require two of the smaller circuits to join together and elect a single commissioner.

The key distinction is that the commission would be comprised exclusively of district court judges, which is curious given that judicial conflicts are, and were, the problem being fixed in the first place. But Orin offers a caveat to address the issue.

The enacting statute could also impose some requirements on the judges elected, such as past experience as a criminal defense attorney and a commitment to the criminal defense function. The result would be an eleven-member commission of federal trial judges that would serve the function described in our report

To find a federal judge whose career was spent defending the accused might be hard, as not too many of us find ourselves nominated, and even fewer could pass Senate scrutiny. Some spend a few hours as a criminal defense lawyer between stints in the United States Attorney’s office and the corner office at Biglaw, where they call themselves CDLs but are more likely to serve as private prosecutors doing investigations to cover boards of directors at major corporations. They’re not really criminal defense lawyers.

As for a “commitment to the criminal defense function,” it’s unclear what that means or how that could be shown, although a few judges, notably our own Iowa District Court Judge Mark W. Bennett, have demonstrated their mettle. Many judges are committed to the defense function, knowing well that they can’t get a solid conviction without a warm body next to the soon-to-be-incarcerated.

But does any of this bring comfort in knowing that judges will appreciate the costs of maintaining a sound and zealous defense? Do they know what a solo practitioner pays for rent, telephone, CLEs and enough of a profit to feed the kids? Will they still harbor their tacit animosity toward lawyers based on the lousy pay federal judges receive? Are they competent to know what a defense lawyer really needs by way of investigation and experts to do his job well?

That the problem is real and pervasive isn’t the issue, but fixing it has always presented an problem. Whether either of these proposals will work will be largely dependent on the will of the commission, as getting money out of Congress and putting it in the hands of the defense has never been a popular cause for the public. What are the chances political appointees will serve the interests of the defense function, as opposed to call for public executions of lawyers along with their clients?

Between the commission’s proposal and Orin’s, it seems the commission’s proposal will be rife with politics, and that makes it more likely to work perfectly and fail to serve CJA panel attorneys. But will a bunch of judges do better? They haven’t up to now.

14 thoughts on “Who Signs The CJA Voucher?

  1. Richard Kopf

    SHG,

    I have no desire to pick a fight with Professor Orin Kerr despite my previous naked mud wrestling offer. But, his dissent is wrong.

    Getting judges out the voucher approval business is the right move both as a matter of substance and practice. If the new proposal is adopted it will be far superior to the wildly disparate practice that exists now. And, far more importantly, it will at last properly and openly declare that judges have no business knowing what CJA lawyers are doing or have done in defense of their clients.

    The independent agency within the judiciary, placed there to protect CJA funding from the predations of Congress, is a brilliant idea. Assuring that judges will not be able to control the new entity has strong symbolic value and even stronger policy value. Put simply, judges should never control the independent indigent defense function guaranteed by the Constitution and the Court. Scott, as you point out, the conflict inherent in judicial control is plain to see even for a blind man.

    The fact that all the judges on the committee (including Judge John Gerrard, my colleague here in Lincoln) rejected the idea of judicial control of the entity is strong evidence that Professor Kerr’s dissent should be roundly rejected. The Professor is a bright guy, but I urge listening to those who do rather than those who don’t.

    All the best.

    RGK

    PS I suspect, without proof, that Professor Kerr’s dissent may resonate with some federal judges who want control and want to maintain control of the indigent defense system in federal court. I urge those judges to trust their judicial colleagues on the ad hoc committee–they have thought deeply about and worked hard on this issue.

    1. SHG Post author

      I doubt Orin would disagree with your “get the judges out of the CJA business” argument, but suspect his concern is that the alternative, political appointees with senate confirmation, would be worse. The obvious solution, make me CJA Czar, would be the only good choice, but we all know that’s not happening, so it’s a battle for the lesser evil.

      1. Richard Kopf

        SHG,

        But the answer is to write the statute to require the appointment of lawyer-members who have CDL experience on CJA panels. There are other variations that would accomplish the same end–a commitment to the CJA mission and experience to further it.

        As for politics, you tell me which proposal is most likely to make it through Congress?

        In my opinion, Professor Kerr’s alternative is dead on arrival. It doesn’t give Congress a crumb–let alone a plum. Congress will demand more than allowing the judiciary to run the show exclusively. I Professor Kerr fails to appreciate the deep political sophistication of the judicial members of the ad hoc committee and the folks at the Administrative Office of the U.S. Courts, including especially Director Duff.

        All the best.

        RGK

        * I would happily accept your appointment as “CJA Czar.” Being an Admiral and a Czar, however, raises an important protocol question. How would we address you?

        1. SHG Post author

          I think the title of Defender General would be cool, as Czar is a little too Potemkin for me anyway. So then I could be addressed as Admiral General, like all the other cool kids.

          Your point about buying off Congress with some paid-political positions to give their cronies is worthwhile, but it’s not like Chuck Grassley and I hang out together. No matter how they wrote the enabling statute, there’s little chance any of them would know a real CDL with whom they didn’t have a personal privilege.

    2. Skink

      Rich–one portrait is prettier than the other, but they’re both just pictures. Folks, professors or judges, can sit in tidy rooms and debate how to fix this, but if the conversations don’t begin with sourcing the cash, then it’s just policy masturbation.

      I ain’t going looking, but there was a post a while back about appointed CDLs in NYC being paid something like $40 per-hour. I bill my paralegal at $100, which is good for my clients, but modest compared to many other firms. Condensing the saying, that $40 will get what should be expected.

      So isn’t it kind of pointless to address who does what without figuring what Scott correctly identifies as the problem: the will to divert funding?

      1. Richard Kopf

        Skink, my road kill eating friend,

        Today, CJA panel attorneys are paid an hourly rate of $140 in non-capital cases, and, in capital cases, where two lawyers must be appointed, a maximum hourly rate of $188. These lawyers are also able to hire experts and investigators and that doesn’t come out of their pocket.

        You can’t get rich doing CJA panel work. But in most places, you can make a living doing both private criminal defense and CJA panel work. This is particularly true for mid-career CDLs. Out here in flyover country, some of the very best CDLs with private practices, and who are very experienced, continue to take CJA work because it keeps them in the federal game and allows them to keep their skills sharp.

        All the best.

        Rich

        *For 2019, for the Defender Services account, the Judiciary’s budget requested $1.14 billion, an increase of $64.0 million (5.9 percent) over the fiscal year 2018 assumed level. This request includes sufficient funding to support the projected number of representations for fiscal year 2019 for both federal defenders and CJA panel lawyers.

        1. Skink

          It’s good, but you gotta get to it quick.

          $140 is far better. I’ll accept on your expertise that the funding is sufficient. So I take it back, but Scott can’t be Czar–he’s too goddamn cranky.

            1. Guitardave

              So do we hyphenate that, Admiral-General?

              PS @Skink , Maybe if we let him have the majestic title of Defender General, and march around in a purple robe and a funny hat , he might possibly become way less cranky?…

  2. Ray

    Where I practice the CJA panel has been very difficult o break into, I think this is because it offers decent pay that supplements private work. It is also interesting work. It won’t make you rich, but it pays the bills. Here, the powers that be just inaugurated a new rule that requires every member of the district court to accept a pro bono appointment in civil matters. The civil pro bono panel was insufficient to take up the slack. In my opinion, the solution is to require CJA panel members to take a civil pro bono appointment if they wish to remain on the panel. With respect to CJA billing practices, this does not need to get over complicated. Establish generic parameters that set expected payments for a given appointment so that attorneys know what is considered to be reasonable. Yes, I know, a Procrustean approach doesn’t work Ina all cases. So what you do is if the billing needs to go above the standard reasonable amount it gets screened first by the Clerk if it is not too far above the standard the Ckerk can approve the billing. If it is high above the standard then the Clerk refers it to the CJA committee, lawyers appointed to. Oversee the panel and who should know what is reasonable. Once a mo th they review these billings and approve or reject. If the CJA attorney is u happy with. The decision, then they can move to appeal to a judge who did not preside over the matter. Just a suggestion.

    1. SHG Post author

      This is dumb and you should hate yourself for writing a comment this dumb.

      (My initial response was less pleasant, so I decided to make it far, far kinder and gentler.)

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