Overview

The Criminal Justice Act (CJA) was enacted to fulfill the promise of Gideon v. Wainwright. For many years the dedicated lawyers (panel attorneys) appointed to represent indigent defendants charged with federal crimes were compensated for their work with rates so low the rates did not even cover overhead costs.

The issue of indigent defense funding got an important boost in 2001 when the House and Senate conferees on the FY 2002 Commerce, Justice, State and the Judiciary appropriations bills provided an increase in CJA panel attorney rates to $90 per hour in-court and out-of-court effective May, 2002. In the 106th Congress, hourly rates were increased to $75 in-court and $55 out-of-court, which was the most significant improvement in these rates since 1984. When the ABA adopted policy on this issue in 1998, CJA panel attorney hourly rates were $65 per hour in-court and $45 per hour out-of-court. The $90 hourly flat rate is a significant step towards the eventual goal of providing the full-authorized level of $113 per hour for these CJA rates.

Status

The President’s proposed budget for FY 2013 recommends $1.07 billion for FY 2013 for defender services, the account that funds the operation of the federal public defender and community defender organizations, and compensation, reimbursements, and expenses of private practice panel attorneys appointed by federal courts to serve as defense counsel to indigent individuals. 

The House Appropriations Committee approved H.R. 6020, the Financial Services and General Government Appropriations Act for Fiscal Year 2013, on June 20, 2012, including a recommendation for funding for defender services at $1.031 billion.  The Senate Appropriations Committee approved S. 3301, its comparable appropriations legislation on June 14, 2012, recommending FY 2013 funding for defender services at $1.048 billion.  On September 28, 2012, President Obama signed a continuing appropriations resolution, H.J. Res. 117, that extends current year funding for defender services through March 27, 2013.

For FY 2012, Congress approved a final funding level of $1.031 billion for defender services as part of omnibus appropriations legislation finalized on December 15, 2011 (Public Law Number 112-74).

Updated: November 9, 2012

Key Points

• The late Chief Justice Rehnquist supported increased funding for CJA panel attorneys. He stated that "[i]nadequate compensation for panel attorneys is seriously hampering the ability of federal courts to recruit and retain qualified panel attorneys to provide effective representation" under the CJA.

• Increased hourly rates are needed now more than ever to recruit qualified CJA attorneys. At the same time low compensation rates are deterring many qualified attorneys from accepting CJA appointments, the practice of federal criminal law is becoming increasingly more complex. In the last decade, for example, Congress has passed new, more complicated criminal laws, and federal sentencing guidelines have been amended over 500 times. It is therefore more important than ever that CJA panel attorneys become-and remain-competent in federal criminal law.

• Judges rely on CJA panel attorneys, in addition to defender organizations, to provide competent representation to indigent defendants. The large growth in the number of federal defender organizations in the 1990s is attributable to problems with the quality of representation, yet the court's reliance on panel attorney representation continues to increase because of the growth in the total number of cases.

• A recent GAO study disclosed that hourly rates routinely paid by major federal agencies for legal services substantially exceed those paid to CJA panel attorneys. In fiscal year 2001, for example, the average hourly fees paid to private attorneys ranged from $125 to $357. In contrast, the hourly rate for CJA panel attorneys in 2003 is $90.

ABA Policy

The ABA urges the federal and state governments to take immediate steps to insure the provision of sufficient funds for the assistance of counsel for indigent defendants. The ABA urges Congress to fully fund the Criminal Justice Act (CJA) with sufficient funds to increase the compensation for panel attorneys appointed under the Act to represent indigent defendants to a flat rate of $113 per hour, plus annual pay adjustments.