Essential role of private lawyers in defending the poor

For decades, the federal defender program has been an outstanding national model for the delivery of indigent defense representation, but it is now being destroyed due to sequestration.  The Sixth Amendment to the Constitution, which guarantees the right to a lawyer for persons unable to afford their own, demands that Congress protect this program to ensure the quality of justice in our federal courts.

The differences between state court systems of indigent defense and the federal defender program is striking.  State and local indigent defense representation has been chronically underfunded resulting in a whole host of problems, including unmanageable public defender caseloads and insufficient support staff, such as investigators and experts.  Also, in many state indigent defense programs private lawyers provide representation in few cases and are discouraged from participation because of woefully inadequate compensation.  

Several years ago, a report issued by the Constitution Project found that state indigent defense systems are frequently “a mockery of the great promise of the Gideon decision.”  The report concluded that defense programs in state courts often deny justice to the poor, risk wrongful convictions, and add unnecessary expense to the justice system.

In contrast, it is undisputed that the program providing counsel for the poor in federal criminal cases has been an enormous success.  Nationally, under the Criminal Justice Act (CJA) enacted by Congress in 1964, about 60% of federal criminal cases have been represented by full-time public defenders and 40% by private lawyers.

However, in 2013, budget cuts mandated by sequestration required the elimination of public defender positions, forced furloughs, and impacted the ability of federal defenders to adequately represent their clients.  As a result, there has been an increase in defender caseloads and reduced access to essential services, such as investigators and experts.   

 Beginning with fiscal year 2014 on October 1, looming additional budget cuts to federal indigent defense spending will further damage this model program.  Federal prosecutors, however, are not being negatively impacted by sequestration since Congress authorized the Attorney General to reallocate funds in order to avoid staff reductions and furloughs.      

Developments pertaining to federal indigent defense have received considerable national media coverage, with the vast majority of reports focused on the cuts imposed on federal public defenders.  But it is a serious mistake to ignore the vital role played by private CJA lawyers.  Besides being better funded than state indigent defense systems, the federal defense program has succeeded because of the availability across the country of more than 10,000 CJA lawyers, who are trained, screened for their effectiveness, and reasonably well compensated.  These lawyers have enabled the caseloads of federal public defenders to remain manageable and hopefully their presence will continue to be enormously helpful in the face of next fiscal year’s budget reductions.  .

More than 30 years ago, the American Bar Association recommended “active and substantial participation of the private bar” in providing representation in criminal cases, a position also endorsed by the National Association of Criminal Defense Lawyers.  The ABA has explained that private lawyers are needed not only to represent cases where public defenders have a conflict of interest, but to ensure that there is an elastic supply of lawyers who can take cases when public defenders are overburdened.  The importance of this last point cannot be overstated because the number of cases added to criminal court calendars is dependent upon decisions of police, prosecutors, and crime in the jurisdiction, not public defenders.

Despite the importance of private CJA lawyers, the federal judiciary has announced a temporary reduction in hourly fees for their representation, from $125 per hour to $110 per hour.  This, too, is a cost-cutting measure due to sequestration, but it may have the unintended consequence of discouraging private lawyers from accepting new appointments just when they will be badly needed.  And, if this occurs, federal public defenders will be pressured to accept more cases, which is what happens in state court indigent defense systems.

Although private CJA lawyers are less cost effective than federal public defenders, the cost difference per case between public defenders and CJA lawyers is quite small (6% per case higher for private lawyers in FY 2010).  In addition, a fee of $125 per hour, let alone $110 per hour, is modest when considering the overhead expense of operating a modern day law office (about $70 per hour for every hour billed), as well as the national market rate for private defense attorneys of $176 per hour.  And, of course, focus on cost totally ignores the indispensable contribution of CJA lawyers in enabling federal public defenders to control their caseloads.

Lefstein is professor of Law and Dean Emeritus at the Indiana University Robert H. McKinney School of Law in Indianapolis.  He is the author of Securing Reasonable Caseloads: Ethics and Law in Public Defense, published by the American Bar Association.