Power, policy, and the Hyde Amendment: ensuring sound judicial interpretation of the criminal attorneys' fees law.

• Author: Welle, Lawrence Judson

The Hyde Amendment(1) brings something new to criminal justice. Enacted in late 1997, this law allows federal courts to award attorneys' fees to prevailing criminal defendants who show that the position of the United States government was "vexatious, frivolous, or in bad faith." Any awards under this statute come out of the budget of the particular offending federal agency, most likely the United States Attorney's Office.

The Hyde Amendment seeks to apply to criminal suits the well-established procedures and limitations of the Equal Access to Justice Act (EAJA),(2) which provides for similar awards against the Government in civil suits.(3) The proponents of the Hyde Amendment mobilized on the perception that the government can be abusive in bringing criminal prosecutions and thereby devastate the lives of defendants who become financially ruined over the course of their defense.(4) The Hyde Amendment has been hailed as a victory for defendants' rights, and a timely response to the abusive acts of government officials.(5)

This Note looks beyond the veneer and exposes the Hyde Amendment as an unequivocal legislative failure to enact law responsibly and as a threat to the sound functioning of the federal criminal justice system. This assessment rests on two related bases.

First, the Hyde Amendment is a simplistic approach to a complicated problem. Congress enacted the Amendment hastily in a highly politicized context of virtually nonexistent opposition, despite the fact that the statute conflicts with well-established and fundamental legal doctrines. Further, Congress did not address these conflicts either during the enactment of the statute or in its ultimate language.

Second, the language of the Hyde Amendment is grossly ambiguous and leaves the judiciary with an impermissible degree of discretion in defining the scope of the law's application. Consequently, this unbridled judicial discretion to review prosecutorial decisions and to impose financial penalties upon the United States Attorneys threatens to weaken the essential function of the executive branch, i.e., the faithful execution of the laws.(6)

This Note consists of four sections. The first section examines the enactment of the Hyde Amendment and exposes the highly politicized context of its passage. The second section discusses both Congress's failure to address three fundamental legal doctrines that directly conflict with the implementation of the Hyde Amendment, and the effect of this failure on judicial interpretation of the statute.

The third section discusses recent district court decisions in which the courts erroneously approached the interpretation of the Hyde Amendment's procedural and substantive provisions. This section also addresses the particular dangers to law enforcement posed by an expansive judicial application of this law. The fourth section recommends various avenues for legislative action that will circumvent the dangers discussed above. In addition, this section introduces a model approach to judicial interpretation that will ensure that courts do not perpetuate the failings of Congress to address the conceptual and doctrinal problems implicated by the Hyde Amendment.

A LEGISLATIVE FOLLY

This section discusses the enactment of the Hyde Amendment. It provides a general factual summary of its provisions followed by an examination of the Amendment's legislative history. After a critical discussion of the political context in which this legislation was passed, this section concludes that Congress enacted the Hyde Amendment without due consideration of its consequences.

Enactment of the Hyde Amendment

In its entirety, the Hyde Amendment provides:

During fiscal year 1998 and in any fiscal year thereafter, the court, in any criminal case (other than a case in which the defendant is represented by assigned counsel paid for by the public) pending on or after the date of the enactment of this Act, may award to a prevailing party, other than the United States, a reasonable attorney's fee and other litigation expenses, where the court finds that the position of the United States was vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust. Such awards shall be granted pursuant to the procedures and limitations (but not the burden of proof) provided for an award under section 2412 of title 28, United States Code [EAJA]. To determine whether or not to award fees and costs under this section, the court, for good cause shown, may receive evidence ex parte and in camera (which shall include the submission of classified evidence or evidence that reveals or might reveal the identity of an informant or undercover agent or matters occurring before a grand jury) and evidence or testimony so received shall be kept under seal. Fees and other expenses awarded under this provision to a party shall be paid by the agency over which the party prevails from any funds made available to the agency by appropriation. No new appropriations shall be made as a result of this provision.(7) Representative Henry Hyde (R-Ill.) introduced this law as a rider to an appropriations bill for the Departments of Commerce, Justice, and State.(8) After thirty minutes of floor debate, and despite the lack of any hearings or committee reports concerning the impact of the proposal,(9) the House of Representatives passed the amendment by an overwhelming, bipartisan vote of 340-84.(10) The language of the original measure changed(11) in conference committee to ameliorate the intense opposition of the Department of Justice.(12) Virtually no record exists respecting the changes made between the House's initial passage of the measure and its ultimate enactment.(13)

Debate of the Proposal

The thirty-minute floor debate that immediately preceded the House vote on the Hyde Amendment constituted the law's only appreciable legislative history.(14) After introducing the amendment on the floor, Representative Hyde stated the problem the measure was intended to address:

I have learned in a long life that people do get pushed around, and they can be pushed around by their government.... I learned that people in government, exercising government power are human beings, like anybody else, and they are capable of error, they are capable of hubris, they are capable of overreaching, and yes, on very infrequent occasions they are capable of pushing people around.... If the Government, your last resort, is your oppressor, you really have no place to turn.(15) Narrowing his focus to the actions taken by federal prosecutors, Hyde queried:

What if Uncle Sam sues you, charges you with a criminal violation, even gets an indictment and proceeds, but they are wrong. They are not just wrong, they are willfully wrong, they are frivolously wrong. They keep information from you that the law says they must disclose. They hide information. They do not disclose exculpatory information to which you are entitled. They suborn perjury. They can do anything. But they lose the litigation, the criminal suit, and they cannot prove substantial justification. In that circumstance, ... you should be entitled to your attorney's fees reimbursed and the costs of litigation.... That, my friends, is justice.(16) Representative Hyde further emphasized his concern for the financial welfare of the prevailing defendants by stating his belief that "the most unjust thing in all the law" is that after prevailing in a prosecution the defendant must "swallow what can be bankrupting costs."(17)

Hyde maintained that his proposal, would do "rough justice" in these cases by duplicating in criminal cases the remedies already afforded civil litigants under the EAJA.(18) Hyde stressed the fact that the EAJA scheme was well-established and that awards under that law were "modest."(19) "[T]hat is the law, and it has been the law for 17 years. There are cases interpreting it, interpreting what substantial justification for the Government to bring the litigation is, and we have had 17 years of successful interpretation and reinforcement of that law."(20) It appears from these statements that Hyde saw his proposal as a simple solution to a serious problem.(21)

Hyde's opponents used their short time during the debate to dispel the notion that the amendment was sufficiently uncomplicated that further deliberation on the proposal was unnecessary. Representative Skaggs thought it:

an extraordinary matter of policy to attempt to bring up for the first time as an amendment to an appropriations bill [a measure that had] been subject to no hearings, no opportunity for representatives of the Justice Department or the criminal defense bar or anyone else to really explicate the implications, the consequences, the costs of a significant change in the way the United States of America would manage its criminal justice responsibilities.(22) Representative Skaggs agreed that Congress should address the issue of injustice, "[b]ut let us do it in the regular order ... with an opportunity for interested parties to be heard ... to make their case about the real consequences of this kind of very, very significant change in national policy."(23) The remarks of Representative Rivers echoed these same concerns.(24) The opposition to the Hyde Amendment, thus, was not as much a frontal assault on the merits of the plan, as it was a call for Congress not to take a headstrong and overly simplistic approach to a complicated issue.(25)

Representative Hyde's response to the opposition's eminently reasonable argument for restraint was both cursory and rhetorical. Hyde stated that, "[the opposition] takes refuge in procedure, that this is the inappropriate vehicle to bring this forward. Injustice needs remedy and one seizes their opportunities when they come along."(26) After calls for further deliberation went unheeded, the debate concluded, and the House of Representatives overwhelmingly approved the Hyde...