Stumbling across unconscious self-parody is one of the hazards of reading the news, and today it struck big time. The NACDL has come out with a "report" titled, "Federal Indigent Defense 2015: The Independence Imperative." The press release (called a "news release") starts with this:
Washington, DC (Sept. 9, 2015) - After over 18 months of study, more than 130 individuals interviewed (including federal judges, federal defenders, Criminal Justice Act (CJA) panel attorneys, Administrative Office of the U.S. Courts (AO) personnel, and others, representing 49 states and all federal judicial circuits), hundreds of documents reviewed, and surveys conducted, the National Association of Criminal Defense Lawyers (NACDL) today officially releases a major report -- Federal Indigent Defense 2015: The Independence Imperative. The report, adopted by NACDL's Board of Directors at its recent annual meeting, reflects the significant work of NACDL's Task Force on Federal Indigent Defense and offers "Seven Fundamentals of a Robust Federal Indigent Defense System," which are set forth below.
You will not be shocked to learn that the "seven fundamentals" can easily be summarized in two words. More moola. What exactly this has to do with "independence" is not so clear, except that it's less embarrassing to say you want "more independence" than that you want "more moola" (although there is a degree of "independence" demanded, i.e., independence from much judicial supervision of how much money gets handed out).
How to put an honest assessment of this "report?"
It's true.
Sorry to disappoint those waiting for the acid to be poured, but indigent defense counsel actually do deserve better pay and more resources. (So do federal prosecutors, but that's another post).
I was an AUSA for 18 years, and it was my experience that federal defenders are underpaid for the quality of work they do. They may be significantly underpaid.
It's often said that indigent defendants take it in the shins, because privately retained counsel are better. That was not my experience. Privately retained counsel could be excellent -- or not so much. There were times they were so bad I looked away in embarrassment. I found myself having to explain to the court the arguments they were trying to make, because the way they put them was next to incomprehensible.
I never had that experience with a federal defender. The defenders were uniformly well prepared, well versed in the law, and on top of the facts (even if they often preferred, understandably, to be less than vivid in describing what they were).
Temperament varied quite a bit. Some were there to insure the client got his rights protected and the government got put to its proof. Some were there because they thought of the client as the Little Guy, the man who never had much of a chance in life. Some were there because they had been fighting with authority figures since fifth grade. And some were there because they thought you, the prosecutor, were a poorly disguised Nazi, and were happy to let you know it in every single court appearance.
Still, for whatever the attitude, the quality of representation ranged from plainly adequate to outstanding. They put in long hours. In private practice, they would have made much more.
There is an unpleasant truth that we, as taxpayers, need to understand: Justice isn't cheap. This applies to the death penalty, incarceration, (attempts at) rehabilitation, and salaries for prosecutors and defenders. If you want quality, sooner or later you have to pay for it.
The NACDL is right. It's time to increase the compensation of defense lawyers.
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