Congress and the federal courts have always recognized that indigent defendants must be provided a lawyer in at least some cases. The Crimes Act of 1790, the first federal criminal statute, stated that any “person indicted of treason or other capitol crime, shall be allowed to make his full defence by counsel learned in the law; and the court before which he is tried . . . shall immediately, upon his request assign him such counsel not exceeding two, as he may desire[.]” The Sixth Amendment to the U.S. Constitution, ratified the year after the passage of the Crimes Act, entitled any federal criminal defendant “to have the Assistance of Counsel for his defence.” The scope and meaning of this right evolved slowly until the mid-twentieth century. Among the difficult questions with which courts and lawmakers increasingly wrestled was whether a right to court-appointed counsel extended to every federal offense, whether the government was responsible for paying appointed lawyers, what effect courts should attach to a failure to appoint counsel, and whether the Sixth Amendment right to counsel applied to state proceedings. Answers to the first three questions were bound up in the historical evolution of the role of federal public defenders.

Until the 1930s, federal trial courts adopted various approaches to indigent defense ranging from appointing counsel on a regular basis to doing so only in the most serious cases. In Johnson v. Zerbst (1938), however, the Supreme Court held that federal trial courts’ failure to provide counsel for indigent defendants in noncapital cases violated the Sixth Amendment. The Court also ruled that the failure to appoint counsel operated “as a jurisdictional bar to a valid conviction and sentence[.]” The Federal Rules of Criminal Procedure, adopted in 1946, required district courts to appoint counsel for indigent defendants at the outset of the prosecution unless the defendants waived their Sixth Amendment rights.

While the justices recognized the importance of the right to counsel in Zerbst, the Court did not, and likely could not, order the creation of a corps of federally employed defense lawyers. Rather, courts interpreting the decision generally appointed attorneys for indigent defendants on an ad hoc basis. These lawyers were generally not compensated for their work but performed it as service to the court and the profession. In some high-profile cases, leading members of the bar assumed the defense of poor defendants. Legal aid organizations also provided a reliable source of counsel in several districts. However, courts in many jurisdictions tended to appoint young attorneys, who were sometimes the only ones willing to assume what was often unpaid, thankless work. Appointed counsel complained that they were unable to receive adequate compensation for their work and could not devote sufficient time and resources to cases involving indigent clients. Many defendants and reformers argued that this system unfairly benefitted the prosecution in cases involving poor defendants.

Despite these concerns, the legislative reforms necessary to create a group of dedicated public defense attorneys were a long time in the making. In 1937 (the year before the Supreme Court’s decision in Zerbst) and again in 1945, the Judicial Conference of the United States, the policymaking body of the federal judiciary, recommended the institution of a federal public defender system in the busiest districts. After advocacy from judicial and prison administrators as well as multiple attorneys general, the Senate Judiciary Committee in 1949 reported legislation that would have required courts to appoint up to two attorneys for federal defendants who satisfied the court that they could not afford a lawyer. These lawyers would not have been public employees, but would have been entitled to “$15 for service in the preparing for trial or plea and not to exceed $20 per day for each counsel, for the number of days such counsel is actually employed in court upon the trial.” The full Senate did not pass the bill, however.

In 1959, the Senate passed a bill that would have empowered each district court to appoint and pay defense counsel for poor defendants. The bill languished in the House of Representatives amid consideration of several conflicting House bills. Many in the House, as well as some senators and judges, worried that reform would interfere with the adversarial process and discourage volunteerism within the organized bar.

In a harbinger of reforms to come, Congress passed the District of Columbia Legal Aid Act in 1960. This legislation created a public defender system for the nation’s capital, which used a combination of private court-appointed lawyers and public legal aid. In 1962, the Senate passed a bill that would have authorized set fees for court-appointed defense counsel in the rest of the country, but the House did not take up the legislation.

With significant backing from President John F. Kennedy and his brother, Attorney General Robert F. Kennedy, Congress made a more concerted effort to authorize and fund federal defense attorneys that eventually led to the promulgation of the Criminal Justice Act of 1964 (CJA). Again, the bill passed in the Senate but faced a harder time in the House. Most of the opposition to the omnibus legislation focused on the Senate proposal to authorize the appointment of federally employed public defenders. Some opponents argued that this innovation would improperly place both sides of a case under the umbrella of the federal government. Others again argued that the representation of needy defendants should remain a matter of voluntary service from public-spirited lawyers. The compromise CJA that emerged from negotiations between House and Senate leaders abandoned the institution of public defenders but did provide for the renumeration of court-appointed attorneys. It also provided reimbursement for expenses these private lawyers incurred in the preparation of the defense.

After conducting a comprehensive study of the CJA’s impact on the field, the Judicial Conference issued a report in 1968 advocating the creation of a federal public defender system for districts handling the most criminal cases. In 1970, Congress responded by finally authorizing district courts to either appoint federal public defenders or use the support of local legal aid organizations to provide equivalent support for indigent defendants.

The provision of defense services to indigent defendants continues to operate under this bifurcated system today. All federal judicial districts appoint private defense attorneys from court-approved panels authorized by the CJA, and most districts also employ federal public defenders. Defenders are appointed by the regional courts of appeals to serve four-year renewable terms in a designated district. Court-appointed defenders, in turn, may appoint a number of assistant attorneys set by the courts of appeals. Federal public defender offices are administered by the Administrative Office of the United States Courts, an agency within the judicial branch of government.    

Further Reading:
Cheshire, Geoffrey. “A History of the Criminal Justice Act of 1964.” Federal Lawyer (Mar. 2013): 46-54.

Kobrick, Jake and Daniel Holt, eds. Debates on the Federal Judiciary: A Documentary History, Volume III: 1939–2005. Washington, D.C.: Federal Judicial Center, 2018.

Mayeux, Sara. Free Justice: A History of the Public Defender in Twentieth Century America. Chapel Hill: University of North Carolina Press, 2020.

Patton, David E. “The Structure of Federal Defense: A Call for Independence.” Cornell Law Review, vol. 102, no. 2 (Jan. 2017): 335-412.