08/21/2020
Fifty-six years ago, President John F. Kennedy signed into law the Criminal Justice Act (CJA), which for the first time assured professional legal counsel to represent people financially unable to retain counsel in federal criminal proceedings. Six years later in 1970, Congress established a full-time federal defender service within the judicial branch. Today, fifty years since the CJA was amended, there are 81 federal defender organizations. They employ more than 3,700 lawyers, investigators, paralegals, and support personnel and serve 91 of the 94 federal judicial districts. Together, federal defenders and over 12,000 private CJA panel attorneys represent the vast majority of the people prosecuted in our nation’s federal courts. Further, the CJA and related statutes created a right to appointed counsel in federal capital habeas proceedings for both state and federal prisoners, including the establishment of capital habeas units (CHU) and other resources, as well as training opportunities, available to attorneys appointed in capital habeas cases. Today, there are currently 21 CHUs in 14 states, many of them providing CHU access to outside districts.
It took more than 140 years for the Supreme Court to address the question of what happens when a defendant could not afford a lawyer. A 1932 case, Powell v. Alabama, involved nine Black teenagers accused of ra**ng white girls in Alabama. In just 12 days, they were charge and convicted, in trials each lasting just a few hours. Eight of the nine were sentenced to death, including a 13-year old. None had a lawyer until a few minutes before their trial began. In a 7-2 decision, the Supreme Court overturned the convictions and declared for the first time that effective court-appointed counsel is a constitutional right. Although limited to capital cases, the Court recognized that: “Even the intelligent and educated layman requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.” Six years later, in Johnson v. Zerbst, the Court made appointed counsel a right in all federal criminal cases. Notwithstanding these important decisions, they provided no funding. Lawyers appointed by federal judges were not paid for time or expenses. Because of the countless advocates and people in this community, including our predecessors, who invested time and had the courage, and persistence to make the promise of the Sixth Amendment meet the practical reality of daily existence, the CJA passed. Under the CJA, federally appointed counsel are paid and reimbursed for reasonable expenses and have access to investigative and expert services. As the 2017 Report of the Ad Hoc Committee to Review the Criminal Justice Act (Rev. April 2018) suggests, there is much room for improvement. But because of your tireless work in pursuit of a better criminal justice system, we are much closer to meeting the promise of the Sixth Amendment than we were fifty years ago. The fight goes on.
Today, our clients are diverse and come from every part of the country and the world. The criminal charges are similarly diverse, including what many saw as traditional state court cases. In addition to household client names such as Ted Kaczynski, Timothy McVeigh, and Dzhokhar Tsarnaev, we represent everyone from those charged with regulatory crimes, tax, immigration, drug, firearm, fraud and racketeering offenses, to those barely able to understand their legal predicament or assist in their defense. Our cases involve the land, including those involving federal land and Indian Nations, air, and sea.
Despite the lopsided funding when compared to the prosecution, plus a couple of other benefits like charging decisions that trigger harsh mandatory minimums, laws that empower them to coerce pleas and unfettered access to an army of people with guns, shields, drones, stingray, warrantless cell site location data, other metadata and countless resources, the courts find us to be the best legal teams. We are a nation of overwhelming criminalization with an incarceration rate dwarfing all others. But this community realizes that everyone in this country is a mere unlucky step away from arrest and prosecution.
Franklin W. Draper
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