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.