Is a Federal Public Defender Agency Necessary?

Blog Post | 112 KY. L. J. ONLINE | January 30, 2024

Is a Federal Public Defender Agency Necessary?

By: Jacob I. Bush, Staff Editor, Vol. 112 

A foundational point of the United States criminal justice system is the right to assistance of counsel in all criminal prosecutions.[1] In 1964, the Criminal Justice Act created a system for appointing attorneys and paying them for their work.[2]  For federal prosecutions, there are three systems in place for public defense: federal public defender agencies, community defender organizations, and Criminal Justice Act (CJA) panels.[3] Federal public defenders are federal government employees, with the chief defender being appointed to a four year term by the court of appeals in the relevant district.[4] Community defender organizations are non-profit organizations incorporated by state statute and receive grants from the federal government.[5] The majority of federal districts use these two systems. 

Three districts in the U.S. rely solely on CJA panels to represent their districts indigent defendants: the Eastern District of Kentucky, the Southern District of Georgia, and the District of the Northern Mariana Islands.[6] CJA panels are made up of private attorneys who can be appointed to represent indigent defendants.[7] These three districts should consider following the systems put in place by a majority of remaining districts in the country. Making this change would benefit both the private attorneys on these CJA panels and the defendants they represent. Federal public defender districts in Colorado and Wyoming, for example, not only represent clients, but they also provide support and training to private attorneys appointed on CJA panels.[8] The federal public defenders in the Southern District of Ohio take a similar approach by providing seminars for private attorneys on CJA panels yearly.[9]

These two examples highlight the key benefits of changing to a system for federal defendants which includes federally employed public defenders. Doing so would create a group of federal employees whose only clients would be indigent persons charged with federal crimes, compared to private attorneys who often have several other private clients. Additionally, having an organized group of federal employees would allow for periodic trainings and seminars for private attorneys on CJA panels similar to those in Colorado, Wyoming, and Ohio.[10] Having a properly trained attorney is even more important in federal court as a little over half of those convicted are serving over 10 years in prison.[11] This is particularly important as the opportunity for parole for federal crimes was removed for federal crimes committed after November 1, 1987.[12] With the potential for a higher serving-time, it is important to give defendants the most prepared attorneys. In the Southern District of Georgia, journalist Charles Bethea believes this is not happening.[13] Bethea claims that unlike the other districts relying solely on the CJA panel, the Eastern District of Georgia does not ensure the CJA panel is made up of adequate attorneys.[14]  He states that the Southern District of Georgia had historically required anyone who practiced law to be available for appointment, regardless of the attorney’s experience and expertise.[15]

The ABA Model Rules of Professional Conduct require a lawyer to competently represent his or her client.[16] That competency requires, “the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”[17] It would be difficult to check these boxes if a non-criminal-law attorney was appointed to a complicated federal criminal case. Not all districts that rely solely on the CJA panels are appointing unprepared attorneys, but when procedures are in place to add an extra safeguard for defendants, it is important to use them. If not, it provides an environment that is susceptible to arguments like that of Bethea.[18]

Adopting a federal public defender system would benefit not only the defendants, but also those who are currently on the CJA panels in that district. While it is true those on the CJA panel would lose some clients that might have been assigned to them, they would still be able to be appointed to around 30 to 40 percent of the public defenders’ cases.[19] Private attorneys would benefit from the job opportunities that a federal public defenders system would create as well as from any trainings or seminars the federal public defenders may provide for those on the CJA panels. The defendants would benefit by having a group of federal employees, who often have extensive experience dealing with complex federal criminal issues, and whose sole job is to represent the indigent who have been charged with federal crimes, instead of having to share a private attorney with other paying defendants. The solution to this problem would be for the remaining districts that rely solely on the CJA panel to at least consider adopting a federal public defenders’ agency, while using the CJA panel as supplemental representation.[20]

[1] U.S. Const. amend. VI; Gideon v. Wainwright, 372 U.S. 335, 344–45 (1963).

[2] Defender Services, United States Courts https://www.uscourts.gov/services-forms/defender-services (last visited Jan. 17, 2024).

[3] Id.

[4] Id.

[5] Id.

[6]Charles Bethea, Is This the Worst Place to be Poor and Charged with A Federal Crime: The Southern District of Georgia does remarkably little to provide for indigent defendants, New Yorker (Nov. 5, 2021) https://www.newyorker.com/news/us-journal/is-this-the-worst-place-to-be-poor-and-charged-with-a-federal-crime.

[7] United States Courts, supra note 2.

[8] Working here, Off. Fed. Pub. Def. Dist. Co. & Wy.,  http://www.cofpd.org/wh.html (last visited Jan. 19, 2024).

[9] Fed. Pub. Def. S. Dist. Oh., Training Session, https://ohs.fd.org/training-session (last visited Jan. 19, 2024).

[10] Off. Fed. Pub. Def. Dist. Co. & Wy. supra note 9; see generally, Fed. Pub. Def. S. Dist. Oh. supra note 10.

[11] Sentences Imposed, Fed. Bureau Prisons (Jan. 20, 2024), https://www.bop.gov/about/statistics/statistics_inmate_sentences.jsp.

[12] United States Parole Commission, U.S. Dep’t. Just., https://www.justice.gov/doj/organization-mission-and-functions-manual-united-states-parole-commission (last visited Jan. 20, 2024).

[13] See Bethea, supra note 6.

[14] Id.

[15] Id.

[16] Rule 1.1: Competence, Am. Bar Ass’n., https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence/ (last visited Jan. 21, 2024).

[17] Id.

[18] See Bethea, supra note 6.

[19] United States Court, supra note 2.

[20] See e.g., Lisa D. Williams, Careers in Indigent Defense: A Guide to Public Defender Programs, 6 (2012).