May 2007: FBA Urges Congress to Increase CJA Panel Attorney Rates

Washington Watch | May 2007
By Bruce Moyer

The Federal Bar Association has once again thrown its support behind the federal judiciary’s renewed request to Congress to adequately compensate court-appointed private attorneys who represent indigent criminal defendants.

Ever since 1964, when the Criminal Justice Act (CJA) established a system for court appointment of counsel for criminal defendants too poor to afford representation, compensation rates for court-appointed panel attorneys have remained substantially below the income earned by privately retained defense counsel—so low that panel attorney rates typically fail to provide even enough to offset overhead costs. This circumstance has increasingly hindered the ability of federal courts to recruit and retain qualified private-sector attorneys who will make themselves available to provide representation to criminal defendants. Panel attorneys are one of two types of federal court-appointed defense attorneys who represent indigent defendants, the other being federal public defenders—federal employees associated with government offices established to represent indigent criminal defendants.

In March, the federal judiciary—armed with fresh evidence demonstrating the widespread difficulties federal judges are increasingly experiencing in identifying enough qualified panel attorneys to accept appointments—requested Congress to provide funding for federal defender services at a level that is sufficient to increase the hourly rate paid to panel attorneys in noncapital cases to $113 per hour. Today, noncapital panel attorneys are compensated at an hourly rate of $92 for noncapital cases and up to $163 for capital cases.

On March 21, Sixth Circuit Judge Julia Gibbons, chair of the Judicial Conference Budget Committee, told a Senate appropriations subcommittee that the number of Criminal Justice Act representations is expected to increase by 8,200 in the coming year as a result of the increasing number of indigent criminal defendants appearing in the federal courts.

This is not the first time that the Federal Bar Association has supported efforts to raise the hourly rate of federal defender panel attorneys. In 2001, the FBA National Council unanimously adopted a resolution urging Congress to increase panel attorneys’ compensation to $113 per hour in noncapital cases—a move that endorsed the federal judiciary’s funding request for fiscal year 2002. The judiciary reiterated its request for the $113 hourly rate in its FY 2003 and FY 2004 funding requests. In 2004, a Senate appropriations subcommittee declared that the judiciary was not presenting a strong enough case for the $113 rate and suggested that the judiciary survey the courts in an effort to present a more compelling case.

In 2004, the federal judiciary conducted such a survey, which revealed that over half of the federal judges surveyed indicated that their courts were experiencing difficulty in identifying enough qualified and experienced panel attorneys to accept appointments in noncapital cases.

A survey of individual CJA panel attorneys was conducted in March 2005, and 38 percent of the attorneys who responded reported that, even though the hourly compensation rate had increased to $90 per hour in May 2002, they nevertheless had declined to accept a CJA appointment in a noncapital case. The CJA panel attorneys reported that, after covering overhead costs, their net pre-tax income for noncapital CJA representations amounted to only about $26 per compensated hour. Nearly three-fourths of the CJA attorneys surveyed in March 2005 reported that they needed an increase in the $90 hourly rate in order to accept more noncapital cases.

The President’s FY 2008 budget recommendation requests $860 million for federal defender services. It’s too early to tell whether Congress this year will marshal the resources needed to provide the funding that will increase the hourly rate to the $113 level. Because funding for defender services during the current fiscal year is operating under a continuing resolution that freezes funding at the FY 2006 level of $717 million, it is likely that there will be a significant shortfall in meeting current operating costs, and the program may be the subject of a supplemental spending request later this year.

The FBA also recently declared its support for bills being considered by the House and Senate—H.R. 893, H.R. 916, and S. 442—that are intended to provide law school loan repayment assistance to federal public defenders and others. The bills replicate loan repayment assistance programs in place at most federal departments and agencies. The FBA has told Congress that the availability of student loan repayment assistance can be a powerful incentive for attracting talented new lawyers to public service employment.

Bruce Moyer is government relations counsel for the FBA.
© 2007 Bruce Moyer. All rights reserved.

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