Indigent Defense Services

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 2014 recommends $1.068 billion 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 panel attorneys appointed by federal courts to serve as defense counsel to indigent individuals.  The program is largely reactive – it has no control over the number and nature of cases it must defend against. The caseload is driven entirely by the prosecutorial policies and practices of the U. S. department of Justice and its 93 United States Attorneys.  Funding for FY 2013 was continued at the FY 2012 level of $1.031 billion under successive continuing resolutions that were enacted to fund federal programs through September 2013, as Congress was unable to finalize a regular appropriations process for the current year.  The Judiciary has requested a 3.0 percent increase to $1.07 billion for FY 2014 for defender services, based on an increase in caseload to handle an estimated 209,000 representations.  The request provides a small cost-of-living adjustment to the panel attorney non-capital rate (from $125 to $126 per hour) and capital rate (from $178 to $180 per hour).  The request includes no program increases. The request also seeks restoration of a portion of sequestration cut funding, including:  $15.1 million for federal defender offices to restore staff and time lost through furloughs and layoffs;  $55.1 million to restore funds for panel  attorney payments, including $27.7 million to make payments to panel attorneys unpaid from FY 2013 and $27.4 million to prevent deferral of payments in FY 2014; and $11.9 million for federal defender offices to restore funding for non-salary accounts used for expert witnesses and for other costs of representation.  

Defender services like other discretionary federal spending programs were subject to sequestration cuts.  The sequestration cut for FY 2013 was 5.0 percent of total authorized spending, amounting to $52 million.  Between October 2012 and April 2013, Federal Defender Organizations (FDO) downsized by 113 employees and other employees were furloughed.  The House Appropriations Committee approved H.R. 2786, its FY 2014 appropriations bill for Financial Services and General Government Operations Act, on July 17, 2013.  It included $1.065 billion for federal defender services, $26 million more that the final FY 2013 appropriated level and $77 million more that the FY 2013 sequestered amount.  On July 25, 2013, the Senate Appropriations Committee approved its bill, S. 1371, with an appropriation level of $1.068 billion for federal defender services, a three percent increase over its final FY 2013 funding. 

On October 1, 2013, after failing to reach agreement on appropriations measures to fund the federal government beyond the September 30 end of the fiscal year, the federal government went into a “shut down” of most activities ending on October 16 when a deal to temporarily fund federal activities was reached by Congressional negotiators and passed by both the House and Senate.  On October 17, President Obama signed P.L. 113-46, a “continuing resolution” measure that continues most of the federal government at FY 2013 sequestration levels through January 15, 2014.  The continuing resolution included an increase from Fy 2013 of $26 million to pay court-appointed defenders owed money for services rendered during the last two weeks of FY 2013 (when such payments were suspended. 

  

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.

Updated as of: 

July 2013

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