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Cardone Recommendation Study: Recommendation Adoptions by Judicial Conference

CJA Review Committee Interim Recommendations
STATUS OF IMPLEMENTATION

March 2020

Listed below are the Interim Recommendations detailed in the Report of the Ad Hoc Committee to Review the Criminal Justice Act (2017).  The original recommendation is listed along with the status of the recommendation (approved, moot, etc.) and any modification made.  References to September 2018 or March 2019 are to the Reports of the Judicial Conference of the United States.  An acronym guide is available at the end.

Structural Changes

  1. The Defender Services Committee (DSC) should have:
    1. Exclusive control over defender office staffing and compensation.
    2. The ability to request assistance of JRC staff on work measurement formulas.
    3. Control over development and governance of eVoucher in order to collect data and better manage the CJA program.
    4. Management of the eVoucher program and the interface with the payment system.
    5. Exclusive control over the spending plan for the defender services program.

Modified 1a): Exclusive control over defender compensation and classification and qualification standards.

Status: a) approved in part with qualifications, September 2018; b) Executive Committee declared moot, September 2018; c) Executive Committee approved, September 2018; d) AO Director determined AO staff working on day-to-day support of the e-Voucher program would remain in CMSO, March 2019; e) Executive Committee deferred consideration until final recommendation of independence is considered.

  1. For any period during which AO and JCUS continue to have authority over the budget for the CJA program, when either the Budget or Executive Committee disagree with the budget request by the DSC, the matter should be placed on the discussion calendar of the full Judicial Conference.

Status: Executive Committee declined to adopt, September 2018

  1. The composition of the DSC should include the co-chairs of the Defender Services Advisory Group, both as voting members.

Status: The Executive Committee determined not to make any recommendation on the request, as the decision rests solely within the Chief Justice’s discretion, March 2019

  1. Defender Services Office (DSO) must be restored to a level of independence and authority at least equal to what it possessed prior to the reorganization of the AO.  In particular, DSO should be empowered to:
    1. Exclusively control hiring and staffing within DSO.
    2. Operate independently from the AO Department of Program Services or any other department that serves the courts.
    3. Retain exclusive control with NITOAD (National IT Operations and Applications Development) over defender IT programs. 
    4. Retain ultimate discretion with DSC in setting the agenda for DSC meetings – no requirement of approval from other AO offices.

Status: a) No action taken; b) approved by AO Director, September 2018; c) approved by AO Director March 2019, exclusive control became effective as of October 25, 2019*; d) no action taken

*Memorandum to James C. Duff, thru Lee Ann Bennett, from Cait T. Clarke, “Defender Information Technology (IT) Governance,” Oct. 15, 2019, signed Oct. 25, 2019, on file with Federal Judicial Center.

  1. DSO should be made a member of the AO Legislative Counsel to consult on federal legislation.

Status: Acted on by AO Director, September 2018; endorsed by JCUS, March 2019

  1. Representatives from DSO should be involved in the Congressional appropriations process.

Modified: Representatives from DSO should be involved in pursuing Defender Services related legislative and appropriations priorities, provided such involvement is consistent with the judiciary’s overall legislative and appropriations strategies and is a coordinated effort with Administrative Office legislation and appropriations liaison staffs and not a separate approach to Congress.

Status: Acted on by AO Director, September 2018; endorsed as modified by JCUS, March 2019

 

Compensation and Staffing for Defenders and CJA Panel Attorney

  1. The annual budget request must reflect the highest statutorily available rate for CJA panel attorneys.

             Modified: The annual budget request should reflect the highest statutorily authorized rate for Criminal Justice Act panel attorneys, unless adverse fiscal conditions require the Defender Services budget request to reflect less than the highest statutorily available rate.

Status: Approved as modified, March 2019

  1. To provide consistency and discourage inappropriate voucher cutting, the Judicial Conference should:
    1. Adopt the following standard for voucher review –
      Vouchers should be considered presumptively reasonable, and voucher cuts should be limited to mathematical errors, instances in which work billed was not compensable, was not undertaken or completed, and instances in which the hours billed are clearly in excess of what was reasonably required to complete the task.
    2. Provide, in consultation with the Defender Services Committee, comprehensive guidance concerning what constitutes a compensable service under the CJA.

    Modified: The Cardone Committee has identified a number of problems related to voucher cutting.  The Judicial Conference should:

    1. Adopt the following standard for voucher review –
      Voucher cuts should be limited to mathematical errors, instances in which work billed was not compensable, was not undertaken or completed, and instances in which the hours billed are clearly in excess of what was reasonably required to complete the task.
    2. Provide, in consultations with DSC, comprehensive guidance concerning what constitutes a compensable service under the CJA.

Status: Approved as modified, September 2018

  1. Every circuit should have available at least one case budgeting attorney and reviewing judges should defer to their recommendations in reviewing vouchers and requests for expert services.

Modified: Every circuit should have available at least one case budgeting attorney and reviewing judges should give due weight to their recommendations in reviewing vouchers and requests for expert services, and must articulate their reasons for departing from the case budgeting attorney’s recommendations.

Status: Approved as modified, March 2019

  1. To promote the stability of defender offices until an independent Federal Defender Commission is created: Circuit judges should establish a policy that federal defenders shall be reappointed absent cause for non-reappointment.

Status: No action taken

  1. A federal public or community defender should be established in every district which has 200 or more appointments each year.  If a district does not have a sufficient number of cases, then a defender office adjacent to the district should be considered for co-designation to provide representation in that district.

Status: Approved, September 2018

  1. The Judicial Conference should develop a policy in which judges defer to DSO recommendations and accepted staffing formulas when setting staffing levels.
  1. Circuit court judges should implement DSO staffing formulas when approving the number of assistant federal defenders in a district. 

12 & 13 Modified: Circuit court judges should give due weight to Defender Services Office recommendations and Judicial Conference-approved Judicial Resources Committee staffing formulas when approving the number of assistant federal defenders in a district. 

Status: Approved as modified, March 2019

  1. Modify the work measurement formulas to:
    1. Reflect the staff needed for defender offices to provide more training for defenders and panel attorneys.
    2. Support defender offices in hiring attorneys directly out of law school or in their first years of practice, so that the offices may draw from a more diverse pool of candidates.

Modified: Modify the work measurement formulas, or otherwise provide funding, to reflect the staff needed for defender offices to provide more training for defenders and panel attorneys, and support defender offices in hiring attorneys directly out of law school or in their first years of practice, so that the offices may draw from a more diverse pool of candidates.

Status: Approved as modified, September 2018

  1. Every district should form a committee, or designate a CJA supervisory or administrative attorney or a defender office, to manage the selection, appointment, retention, and removal of panel attorneys.  The process must incorporate judicial input into panel administration.

Status: Approved, September 2018

  1. Every district should have an appeal process for panel attorneys who wish to challenge any non-mathematical voucher reductions.
    1. Every district should designate a CJA Committee that will determine how to process appeals.
    2. Any proposed reasonableness reduction shall be subject to review by the designated CJA review committee that will issue a recommendation to the judge.

Modified: Every district or division should implement an independent review process for panel attorneys who wish to challenge any reductions to vouchers that have been made by the presiding judge. Any challenged reduction should be subject to review in accordance with this independent review process. All processes implemented by a district or division must be consistent with the statutory requirements for fixing compensation and reimbursement to be paid pursuant to 18 U.S.C.§3006A(d).

Status: Approved as modified, March 2019

 

Standards of Practice and Training

  1. DSO should regularly update and disseminate best practices.

Status: Approved, September 2018

  1. DSO should compile and share best practices for recruiting, interviewing, and hiring staff, as well as the selection of panel members, to assist in creating a diversified workforce.

Status: Approved, September 2018

  1. All districts must develop, regularly review and update, and adhere to a CJA plan as per JCUS policy.  Reference should be made to the most recent model plan and best practices.  The plan should include:
    1. Provision for appointing CJA panel attorneys to a sufficient number of cases per year so that these attorneys remain proficient in criminal defense work.
    2. A training requirement to be appointed to and then remain on the panel.
    3. A mentoring program to increase the pool of qualified candidates.

Status: Approved, September 2018

  1. FJC and DSO should provide training for judges and CJA panel attorneys concerning the need for experts, investigators and other service providers.

Status: Approved, September 2018

  1. FJC and DSO should provide increased and more hands-on training for CJA attorneys, defenders, and judges on e-discovery.  The training should be mandatory for private attorneys who wish to be appointed to and then remain on a CJA panel.

Status: Approved, September 2018

  1. While judges retain the authority to approve all vouchers, FJC should provide training to them and their administrative staff on defense best practices, electronic discovery needs, and other relevant issues.

Status: Approved, September 2018

  1. Criminal e-Discovery: A Pocket Guide for Judges, which explains how judges can assist in managing e-discovery should be provided to every federal judge.

Status: Approved, September 2018

 

Capital Representation

  1. Remove any local or circuit restrictions prohibiting Capital Habeas Units (CHUs) from engaging in cross-district representation.  Every district should have access to a CHU.

Modified: Local or circuit restrictions prohibiting Capital Habeas Unit (CHUs) from engaging in cross-district or cross-circuit representation should not be imposed without good cause.  Every district should have access to a CHU.

Status: Approved as modified, March 2019

  1. Circuit courts should encourage the establishment of CHUs where they do not already exist and make Federal Death Penalty Resource Counsel and other resources as well as training opportunities more widely available to attorneys who take these cases.

Status: Approved, September 2018

  1. Eliminate any formal or informal non-statutory budgetary caps on capital cases, whether in a death, direct appeal, or collateral appeal matter.  All capital cases should be budgeted with the assistance of CBAs and/or resource counsel where appropriate.

Status: Approved, March 2019

  1. In appointing counsel in capital cases, judges should defer to recommendations by federal defenders and resource counsel absent compelling reasons to do otherwise.

Modified: In appointing counsel in capital cases, judges should consider and give due weight to the recommendations by federal defenders and resource counsel and articulate reasons for not doing so.

Status: Approved as modified, March 2019

  1. Modify work measurement formulas to:
    1. Dedicate funding – that does not diminish funding otherwise available for capital representation – to create mentorship programs to increase the number of counsel qualified to provide representation in direct capital and habeas cases.
    2. Reflect the considerable resources capital or habeas cases require for federal defender offices without CHUs.
    3. Fund CHUs to handle a greater percentage of their jurisdictions’ capital habeas cases.

Status: Approved, September 2018

  1. FJC should provide additional judicial training on:
    1. The requirements of §2254 and §2255 appeals, the need to generate extra-record information, and the role of experts, investigators, and mitigation specialists.
    2. Best practices on the funding of mitigation, investigation, and expert services in death-eligible cases at the earliest possible moment, allowing for the presentation of mitigating information to the Attorney General.

Status: Approved, September 2018

 

Defender Information Technology

  1. Adequately fund and staff NITOAD in order to control and protect defender IT client information, operations, contracts, and management.

Status: Approved, September 2018

 

Resources: Litigation Support and Interpreters

  1. Increase staff and funding for the National Litigation Support Team, as well as increased funding for contracts for Coordinating Discovery Attorneys to be made available throughout the United States.

Status: Approved, September 2018

  1. Create new litigation support position(s) in each district or at the circuit level, as needed, to assist panel attorneys with discovery, evaluation of forensic evidence and other aspects of litigation.

Status: Approved, September 2018

  1. Develop a national policy requiring the use of qualified interpreters whenever necessary to ensure defendants’ understanding of the process.

Status: Approved, September 2018

 

Legislative Changes

  1. Amend 18 U.S.C. §4285 to permit courts to order payment of costs in the limited circumstances where the defendant is unable to bear the costs and the court finds that the interests of justice would be served by paying necessary expenses.

Status: Approved, September 2018

  1. Congress must amend the Criminal Justice Act to eliminate circuit court review of attorney and expert fees exceeding current statutory caps.

Status: Deferred, March 2019