The Structure of Federal Public Defense: A Call for Independence

Abstract

Independence is a foundational requirement for any good system of public criminal defense. The Constitution guarantees anyone charged with a crime the right to a defense attorney regardless of ability to pay, and that attorney has the ethical obligation to provide a zealous defense, free from any conflicting outside influence. And yet the system of federal public defense is funded, managed, and supervised by the very judges in front of whom defenders must vigorously defend their clients. The arrangement creates serious constitutional, ethical, and policy problems. This Article proposes a solution: an independent federal defense agency. The agency proposed, the Center for Federal Public Defense (CFPD), would administer federal defenders’ offices, manage the system of appointed private attorneys, and seek funding from Congress for indigent defense services.

The Article places the discussion of the proposed organization in the context of other independent agencies that do not fit neatly into a single branch of government, sometimes described as “boundary organizations.” In many ways, federal public defense is ideally suited for placement outside of the formal branches of government. Many congressionally created independent organizations are structurally problematic because of separation-of-powers concerns that arise from the agencies’ enforcement or rulemaking authority. Federal public defense attorneys, however, neither make rules nor enforce them. And because of the nature of their work, they legitimately require insulation from direct government control — including from the Judiciary. In a criminal justice system that relies on its adversarial nature to function properly, it would be inconceivable to have judges decide who is hired in a prosecutor’s office, how much they should be paid, or how and whether prosecutors should investigate individual cases. It would be equally problematic to have the Judiciary act as the voice of the Department of Justice in Congress when explaining resource needs and seeking appropriations. And yet the Judiciary currently does all of those things with respect to the defense function. It should not, and the fix is straightforward: the creation of an independent defender organization.

Keywords: Public Defense, Criminal Law, Criminal Procedure, Federal Courts, Criminal Justice Act, Administrative Law, legal ethics