December 18, 2018

Committee to Review the Criminal Justice Act Releases Report and Recommendations for Reform of Indigent Defense, Including Capital Cases

In June 2018, the Committee to Review the Criminal Justice Act Program publicly released its Final Report addressing a wide range of topics related to the administration of the Criminal Justice Act (“CJA”). The CJA was enacted in 1964 to govern the appointment of indigent defense counsel in federal courts, and the last comprehensive review of its functioning took place in 1993. In 2015, U.S. Supreme Court Chief Justice John Roberts appointed a committee, chaired by Judge Kathleen Cardone of the U.S. District Court for the Western District of Texas, to conduct a new, in-depth review of the administration of the CJA.

Report of the Committee to Review the Criminal Justice Act

Report of the Committee to Review the Criminal Justice Act

During its two-year study period, the Committee heard testimony at a series of hearings from a wide range of individuals who work within the criminal justice system. The Committee’s 340-page Report synthesizes the large volume of information collected about the functioning of the CJA program and makes recommendations for improvements to ensure that the CJA fulfills its role in protecting the right to counsel and the effective functioning of the criminal justice system.

Although the CJA applies only to federally funded defense services, the Act’s administration plays a vital role in all capital cases. The CJA is directly implicated from start to finish in the relatively limited set of capital cases prosecuted under federal law. But capital defendants whose cases were tried in state court can seek habeas corpus relief from the federal courts, and when they do so, they are eligible for appointment of counsel under the CJA. Thus, the CJA has the potential to directly impact every capital case in the United States.

In recognition of this important role in death penalty cases, the Committee’s Report dedicates a full chapter to capital defense. With respect to counsel appointed to represent capital prisoners in federal habeas proceedings, the Report discusses a number of areas of concern. Among these is the adequacy of funding for defense teams. The Report notes that while the hourly rate for attorney time has been raised periodically over the years, funding for experts, mitigation specialists, investigators, and other supporting services is presumptively capped at $7,500—a limit that has not been increased since 1996. The Report concludes that the presumptive limit is “far too low” in light of the fact that habeas corpus “requires the investigation, or re-investigation, of matters which might have been but were not litigated at trial, on appeal, or even in the initial state habeas petition. This work,” the Committee concluded, “cannot be done without significant assistance from expert witnesses and other specialized service providers.”

The Report also discusses problems with the appointment of qualified counsel in both federal capital trials and in habeas proceedings. Judges are responsible for appointments and funding requests, but the Report observes that “[m]any federal judges are not familiar with the nature of criminal defense and are even less knowledgeable about what it takes to provide a strong defense in a death penalty case . . . .” As a result of this lack of experience, combined in some jurisdictions with an insufficient pool of qualified attorneys, “judges often struggle with selecting and appointing the learned counsel required in direct death cases and capital habeas cases.” The lack of judicial experience can also result in improper denials of funding from judges who are “unaware of the need for extensive investigative, mitigation, and other expert assistance in both capital prosecutions and habeas petitions.”

The Report recognizes the “disastrous” consequences that result from failure to appoint qualified counsel, finding “a negative, or inverse, relationship between the attorneys’ hours on a case and their client’s risk of being sentenced to death [at trial] . . . .”  This relationship holds true in habeas cases as well. The Report highlights testimony from one witness who reported that in “at least ten Texas capital habeas cases, lawyers have missed the statute of limitations — including one Houston lawyer who missed the deadline in three cases. . . [and] continued to receive federal capital habeas appointments . . . .”

Project Director Emily Olson-Gault Testifies Before the Committee at a 2016 Hearing in Birmingham, AL

Project Director Emily Olson-Gault Testifies Before the Committee at a 2016 Hearing in Birmingham, AL

Committee to Review the Criminal Justice Act Program

The Report discusses numerous other issues with capital representation under the CJA, including insufficient training and the practice of cutting vouchers submitted for reimbursement of expenses. At a Committee hearing held in 2016, Project Director Emily Olson-Gault testified about many of these problems and the Project’s work to address them. The Report quotes Ms. Olson-Gault’s testimony about the difficulty of finding pro bono counsel to fill the gap left by the lack of qualified attorneys and funding. In her remarks to the Committee, she made clear that pro bono representation cannot serve as a substitute for a well-functioning system of indigent defense.

Focusing on potential solutions to these widespread issues, the Report praises the model of Capital Habeas Units (“CHUs”), which “provide zealous and effective representation” and “do not need to seek judicial approval for needed expert and other services.” The Report found that “CHUs are uniquely qualified to accept and effectively represent death penalty habeas clients while keeping costs lower than those expended on private attorneys providing commensurate representation.” The Report cautions, however, that the mere creation of a CHU is insufficient without the necessary staffing and funding.

Along with the Report, the Committee issued a number of “interim” recommendations, including the creation of additional CHUs, elimination of presumptive budget caps, and increased judicial training on the requirements for the defense effort in capital cases.

The Committee’s primary recommendation, however, is an overarching structural change that would grant independence to the federal defender program through creation of an independent Federal Defender Commission. This new commission would remain located within the judicial branch of the federal government,  but would move outside the control of the Judicial Conference. The creation of the commission would, in the view of the Committee, remove the need for many of the interim recommendations, although some would remain “useful guidance even to a fully independent entity.”

The impact of the Committee’s interim recommendations can already be seen in the area of capital defense with the opening of new CHUs in Texas and Florida—two of the most active death penalty states in the country. Several other recommendations, as well as the major structural change recommended by the Committee, remain under consideration.

The full report, along with videos and transcripts of the hearings and a library of related resources, is available on the Committee’s website at