ELIGIBILITY FOR COURT-APPOINTED COUNSEL IN FEDERAL CASES: A REVIEW OF LEGISLATION AND CASE LAW.

• Author: Wynne, Susan L.
• Position: ARTICLES

1. INTRODUCTION

   The Sixth Amendment's right to counsel has been a part of American constitutional law since 1791; (1) however, that right was not originally interpreted to mean that those who could not afford counsel would have it appointed for them and paid for by the government. (2) In fact, the practical implications of the right to counsel for indigent criminal defendants did not begin to emerge until the Supreme Court's landmark decision in Powell v. Alabama, (3) which secured the Sixth Amendment right for defendants in state or federal proceedings accused of capital crimes. (4) The right to counsel, however, did not fully evolve until forty years later when the Court decided Argersinger v. Hamlin, (5) which secured the right for all criminal defendants facing potential loss of liberty by incarceration. (6)

   The U.S. Supreme Court, however, has never provided practical guidance regarding which defendants are eligible for such protection at no cost to them. (7) With the right firmly established for both state and federal criminal defendants, (8) the work of fleshing out the details regarding how, when, and for whom the right should be afforded has been left to the federal and state legislatures and lower courts. (9) As a result, fifty-one separate public defender systems at the federal and state level have developed with little or no centralized guidance. (10)

   A review of the extant literature regarding the right to counsel suggests that some jurisdictions have had more success than others in implementing and maintaining these systems. (11) Unfortunately, the literature indicates that the nation's indigent defense systems are in a state of crisis, (12) and causes for the crisis are largely attributed to burgeoning caseloads, insufficient training and standards for court-appointed attorneys, and a lack of adequate funding to properly address these and other issues. (13) State public defender systems have been the target of most of the criticism, (14) while there is a relative dearth of research or commentary related to the federal system. (15) The commentary that does exist on the federal system is less conclusive than that regarding state systems. (16) One author cited similar problems in the federal system as those plaguing the state systems. (17) However, another author and former federal prosecutor pointed out that all public defender systems are not created equal, and that distinctions between the jurisdictions are important, particularly in light of her view that the federal system operates much more effectively than those in the states. (18) Regardless of the jurisdiction under consideration, the focus of the existing literature is almost exclusively the impact of the crisis on the effectiveness of counsel provided to indigent defendants. (19) Where solutions are proffered, many are aimed at adding funding, (20) increasing performance standards for indigent defense providers, (21) and increasing performance monitoring and oversight of public defender systems generally. (22)

   Yet very little attention in the existing literature is given to the mechanisms that control the entry point into the public defender system--i.e., the criterion used for determining eligibility for court-appointed counsel. (23) Understanding how determinations of eligibility are made is important because those decisions are the ones that play the most significant role in ensuring the right to counsel for defendants who cannot afford to hire their own attorneys. Thus, the implications for establishing a balanced and standard approach to eligibility determinations are significant. In the absence of relatively objective and uniform standards, eligibility determinations are made more subjectively, increasing the risk of inequality in the appointment of counsel. (24) A lack of uniformity in determining indigency could result in similarly situated defendants being treated differently with respect to their Sixth Amendment rights. (25) Further, without the ability to obtain counsel on their own, defendants may be forced to represent themselves, (26) leading to a risk of worse outcomes, (27) including more convictions and longer sentences, than defendants represented by counsel. (28) On the other hand, if people capable of paying for their own counsel are found eligible for court-appointed counsel, unnecessary stresses will be added to already overloaded public defender systems. (29)

   While it may be unclear how eligibility decisions for court-appointed counsel are made, it is clear that the "vast majority" of federal criminal defendants utilize court-appointed public defenders or "panel attorneys" at a substantial cost to taxpayers. (30) According to a published study analyzing federal court cases by the defendants' counsel type, over seventy-one percent of felony defendants in United States district courts were represented by court-appointed federal public defenders or panel attorneys in cases that terminated between 1996 and 2011. (31) According to the data compiled during the same study, the number of defendants represented by court-appointed attorneys increased by over 134 percent during that time; for cases terminated in 1996, 30,641 defendants were represented by court-appointed attorneys, and by 2011 the number had increased to 71,912. (32) Government expenditures for federal defender services for the same time frame -- 1996 to 2011 -- show that publicly funded representations came at great expense. In 1996, the cost was $305 million, (33) and by 2011, the cost to taxpayers had skyrocketed to $1,027 billion. (34) The fiscal year 2016 budget for federal defender services was estimated to increase to $1,083 billion. (35)

   The purpose of this article is to determine how eligibility decisions to appoint publicly funded counsel are made at the federal level. To accomplish this, the provisions of the federal Criminal Justice Act of 1964 ("CJA"), (36) which formalized the federal public defender program, are examined. In addition, federal case law interpreting the CJA is identified and analyzed. Findings suggest that neither federal legislation nor case law provides specific criteria for decisions about which defendants are eligible for court-appointed defense counsel. Instead, broad discretion is left to federal magistrates and trial judges. Such discretion presents risks for unequal treatment and discriminatory decisions that threaten defendants' equal protection guarantees and Sixth Amendment rights.

2. EVOLUTION OF THE SIXTH AMENDMENT RIGHT TO COUNSEL

   Though deriving from English common law, the concept that criminal defendants have a right to have an attorney assist them in their defense against government prosecution was formally born in the United States with the addition of the Bill of Rights to the Constitution in 1791. (37) The Sixth Amendment to the Constitution states, in part: "In all criminal prosecutions, the accused shall enjoy the right to... have the Assistance of Counsel for his defense." (38) The true connotation of that constitutional language did not take shape until the Supreme Court ruled that the Fourteenth Amendment extended the Sixth Amendment right to counsel to the states. (39) The Court's involvement in fleshing out the contours of the right to counsel began in 1932 with Powell v. Alabama followed in 1938 by Johnson v. Zerbst. (40) The Sixth Amendment right to counsel continued to expand through the procedural due process era of the Warren Court with Gideon v. Wainwright and Argersinger v. Hamlin.

   The Powell u. Alabama case marked the first time that the Supreme Court dealt directly with the right to counsel, and it did so in the racially and politically charged South. (41) On appeal for violations of the Sixth Amendment, the Court reversed the convictions of eight black males convicted without assistance of counsel of raping two white girls. (42) The Court, with Justice Sutherland writing for the majority, found that "the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was... a denial of due process within the meaning of the Fourteenth Amendment." (43) While the Court limited the reach of the decision to defendants in state and federal capital cases, (44) Powell represented a monumental step toward procedural fairness through the Sixth Amendment right to counsel.

   The next significant stop on the evolutionary map toward the maturation of the right to counsel was Johnson v. Zerbst. Defendant Johnson was tried and convicted without the assistance of counsel of possessing and passing counterfeit money. (45) Upon review of Johnson's habeas corpus petition, the Supreme Court concluded that the "Sixth Amendment constitutionally entitles one charged with [a] crime to the assistance of counsel, [and] compliance with this constitutional mandate is an essential jurisdictional prerequisite to a federal court's authority to deprive an accused of his life or liberty." (46) With its decision in this case, the Court extended the right to counsel established in Powell to all criminal defendants facing federal prosecution. (47)

   The Court next got the chance to review the Sixth Amendment right to counsel and the incorporation of the right under the Fourteenth Amendment in Belts u. Brady. (48) Indicted for robbery, Betts' request for court-appointed counsel was denied by the state trial judge because the county only appointed counsel for defendants on trial for rape or murder. (49) Betts pled not guilty, represented himself, and the judge convicted him of robbery and sentenced him to eight years in prison. (50) Upon review of Betts' petition for habeas relief, the Supreme Court declined to extend the Sixth Amendment right to counsel via the Fourteenth Amendment's due process clause to non-capital state defendants. (51) In a strongly worded dissenting opinion, Justice Black noted: "Denial to the poor of the request for counsel in...