Mimesis Law
15 November 2018

Time To Get Judges Out Of The Public Defense System

Sept. 24, 2015 (Mimesis Law) — A trial balloon:

Let’s transfer the entire federal public defense system (Federal Public Defenders and Criminal Justice Act Panel Attorneys) to an independent agency within the judiciary modeled after the United States Sentencing Commission.

Judges don’t meddle with the appointment, pay, or administrative supervision of federal prosecutors. The same should be true for federal defenders and CJA panel attorneys.

I come to this conclusion after writing the first Criminal Justice Act plan for the District of Nebraska in the early part of the 1990s, stewarding that plan through the bureaucratic process, including appearing before Judge Prado’s committee*, and advising the Circuit that it should appoint David Stickman, who remains our absolutely superb Federal Public Defender all these many years later.

The Chief Justice has appointed an ad hoc committee comprised of thoughtful and serious people like my colleague Judge John Gerrard. Among other things, the Chief Justice has charged this committee with the responsibility of examining the national structure and administration of the defender services program under the CJA.

We are at a cross roads when it comes to federal public defense. After serving as magistrate judge and a district judge (including service as a chief judge) for over 28 years, I am convinced that judges ought to get out the business of superintending the federal public defense system. There are numerous reasons for this. But the most important reason is to preserve the independence of the federal defense system. We need, however, to remember that Congress would likely gut (as it has with legal services for the poor) a federal criminal defense system that lacked the budgetary protection inherent in being housed within the judiciary.

We have a good example now of how this independent agency could be structured. The United States Sentencing Commission is that example. I urge the ad hoc committee to seriously consider such an alternative.

Richard G. Kopf
Senior United States District Judge

*When I appeared before Judge Prado, I was a magistrate judge about to become a district judge. Judge Prado whimsically asked why I wanted to leave the best job in the judiciary. I didn’t have a good answer then, and I still don’t have a good answer now.

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  • Burgers Allday
    25 September 2015 at 12:22 am - Reply

    ussc:

    Patti B. Saris
    (Chair) Chief Judge, U.S. District Court for the District of Massachusetts December 22, 2010 October 31, 2015†
    Charles R. Breyer
    (Vice Chair) Senior Judge, United States District Court for the Northern District of California June 6, 2013 October 31, 2015
    Dabney Friedrich
    (Commissioner) Former White House Assistant Counsel March 1, 2007 October 31, 2015
    Rachel E. Barkow
    (Commissioner) Professor, New York University School of Law June 6, 2013 October 31, 2017
    William H. Pryor, Jr.
    (Commissioner) Judge, United States Court of Appeals for the Eleventh Circuit June 6, 2013 October 31, 2017