Other Judiciary Entities – Journalist’s Guide

Criminal Justice Act Defense System (Court-Appointed Counsel)

Most federal criminal defendants, including those who are employed at the time of their arrest, cannot afford the cost of paying for a criminal defense lawyer. Nearly 90 percent of federal defendants are represented by court-appointed lawyers, through Judiciary funding under the Criminal Justice Act (CJA).

Public representation ensures that all criminal defendants, regardless of their means, receive their right to counsel under the Sixth Amendment. It also protects the integrity of the proceedings, by creating a robust adversarial setting and holding the government to its burden of proof. Indirectly, the guarantee of a vigorous legal defense buttresses public confidence in the delivery of equal justice under the law.

Information about the federal defender system is available in the Guide to Judiciary Policy, Chapter 7, and the Criminal Justice Act, 18 U.S.C. § 3006A. Each district court is required by federal statute to formulate a district-wide plan for implementing the CJA; most CJA plans are available online. 

Some key points:

• All criminal defendants charged with a felony or Class A misdemeanor are eligible for a court-appointed lawyer if their “net financial resources and income are insufficient to obtain qualified counsel.”
• By statute, eligible defendants “shall be represented at every stage of the proceedings,” from an initial appearance before the magistrate judge through appeal.
• The judge determines a defendant’s eligibility for appointed counsel. Depending on a court’s CJA plan, either the judge or a separate administrator selects the lawyer. The defendant does not choose his or her attorney.
• In addition to counsel, the CJA pays for necessary defense resources, such as investigators and experts. In some cases, a defendant can afford to hire a lawyer but requires the court to provide other professionals and services needed to support a defense.
• A defendant may waive the right to counsel and conduct his or her own defense. Even then, the court may appoint standby counsel, who will observe the case and step in as counsel if requested by the defendant. This protects the integrity of the proceedings and helps prevent legal errors that might disrupt the case.

Who Provides Court-Appointed Counsel

The federal defense system functions as a hybrid system with two types of lawyers: full-time salaried defenders, and private attorneys who are appointed by the court to represent defendants at a set hourly rate.

Nearly every court district has a federal defender organization, a federal entity that acts as a counterpart to the local U.S. attorney’s office. It is led by a chief defender and staffed by attorneys, investigators, paralegals, and support personnel. In some districts, full-time defenders work for community defender organizations, which are nonprofit organizations that receive grants from the federal Judiciary to defend those who cannot afford a lawyer.

The private lawyers, called panel attorneys, are available to handle CJA cases in which the local defender's office has a conflict of interest (for example, multi-defendant cases) or when the office’s existing caseload prevents it from accepting more appointments. 

How CJA Cases Are Funded

Federal defender organizations receive individual budgets to fund their operations, including employee salaries. Specific case expenditures, such as expert fees, are funded from the office budget. In cases that require an unusually costly defense, such as a death penalty trial or other highly complex litigation, additional money can be provided by the Administrative Office of the U.S. Courts, which, along with the Judicial Conference Committee on Defender Services, oversees the national budget for the CJA program. 

Unlike federal defenders, panel attorneys are paid an hourly rate for CJA work. Hourly rates, which are set by the Judicial Conference of the United States within statutory limits established by Congress, are available at the Judiciary’s CJA Guidelines, § 230 (non-capital) and § 630 (capital).

Also unlike federal defenders, panel attorneys must have their compensation and expenses approved by the court. In addition, before obtaining other services, such as those of an investigator or expert witness, panel attorneys must get authorization from the presiding judge.

Defense costs in a specific case are not available to the public, or even to the prosecution, during the case, including any appeals. When a judge must authorize defense expenditures, such requests are made ex parte, with only defense counsel present.

Defense expenditures remain confidential because disclosure could compromise the defense by revealing legal strategy. Disclosure also may compromise the attorney-client privilege and other protections. The public or media may ask the presiding judge to lift a seal on defense-related expenditures – but only after all judicial proceedings are concluded, including appeals. In practice, most costs related to a trial, including money spent on the criminal investigation and prosecution, are unavailable to the public.

The CJA and Death Penalty Cases

Federal death penalty prosecutions are large-scale cases that are costly to prosecute, investigate, and defend. 

Because of their complexity and potential severity, death penalty trials have special provisions for court-appointed counsel, which are spelled out in Volume 7, Chapter 6, of the CJA Guidelines. These include the following:

• The appointment of two lawyers, “at least one of whom is experienced in and knowledgeable about the defense of death penalty cases.” Attorneys versed in death penalty defense also are known as “learned counsel.”  If necessary for adequate representation, more than two attorneys may be appointed.
• A higher rate of hourly compensation, which is available in the CJA Guidelines at § 630 Compensation of Appointed Counsel in Capital Cases.

In addition to death penalty trials, other capital representation in the federal courts includes post-conviction proceedings, in which an individual who has been sentenced to death, either in state or federal court, is seeking to vacate or set aside his or her death sentence. These are often referred to as “habeas corpus” proceedings, and the individual seeking relief is referred to as the “petitioner.” Financially eligible persons are entitled to the appointment of one or more qualified attorneys in these capital habeas proceedings.

Probation and Pretrial Services Officers

Probation and pretrial officers are federal law enforcement officers who help protect the community by investigating and supervising federal defendants and offenders. They play a critical role, serving as the “eyes and ears” of the federal courts by providing critical pretrial, presentence and postconviction reports to judges. They also supervise defendants awaiting trial and people returning to the community after incarceration.

Key parts of an individual’s community supervision process are not public. Pretrial and presentence reports are directed solely to the judge and the parties, and are not public. A supervision officer’s case files also are not public. Court orders setting out terms of supervised release generally are reflected in the judgment forms, which are available through PACER.

Media inquiries regarding specific cases or supervision officers should begin with the local probation or pretrial services chief. Local offices can be found through the Court Locator. Inquiries about policies or procedure at the national level should be directed to the Administrative Office of the U.S. Courts’ Office of Public Affairs. 

Probation and pretrial services officers make up nearly one-quarter of the Judiciary’s workforce, and they are organized by court district. Every district has a probation chief, and some also have a separate pretrial services chief. The chiefs report directly to a district court’s chief judge.

Pretrial services and probation officers play many distinct roles throughout the judicial process:

• Pretrial services and presentence investigations. Following an arrest or indictment, pretrial services officers investigate defendants’ backgrounds, to help judges set bail and terms of pretrial release. The pretrial report recommends whether to release or detain the defendant before trial, and addresses whether the defendant is likely to stay out of trouble and return to court as required.
  
  Probation officers prepare a presentence investigation report, which recommends sentencing options under the federal sentencing guidelines, addresses the offense’s impact on the victim, and determines the offender’s ability to pay fines and restitution. It also recommends release conditions, by which the court can govern an offender’s movement and behavior in the community, as well as any rehabilitative programming that an offender may need.
  
  Although probation and pretrial services officers make recommendations to the court, judges make final decisions governing bail, sentencing, and supervised release, after receiving feedback from the prosecution and defense counsel.
   
• Community supervision. Pretrial services officers supervise defendants who have been released to the community pending trial and sentencing. Probation officers supervise persons sentenced to probation and post-incarceration offenders who are returning to the community.
  
  Supervision consists of monitoring offenders’ behavior in the community, enforcing court-ordered restrictions on behavior, and providing interventions authorized by the court.
  
  Monitoring is the process of collecting information about the behaviors and activities of an offender to ensure that conditions of supervision are being met. Monitoring is done through phone calls and personal contact with people under supervision; their family, friends, and associates; and other agencies.
  
  Individuals also are monitored through various supervision tools, such as location and computer monitoring, law enforcement notification systems, and investigative databases.
  
  Restrictions are actions that limit an individual’s liberty and reduce the likelihood of criminal behavior while under supervision. Restrictions may include court-imposed limits on traveling, associating with certain people, and consuming alcohol or controlled substances. 
  
  Interventions are programs and services that officers provide to offenders (or refer offenders to) that are designed to help offenders remain crime free. These include drug, mental health and other counseling, and employment and vocational services.

Read about the duties of probation and pretrial services officers and about community supervision, including location monitoring. Locate information about probation and pretrial supervision caseloads.

Central Violations Bureau

In addition to major criminal cases, federal courts also hear cases involving minor infractions that occur on federal land, such as military bases, park and forest land, and federally operated hospitals. These infractions can include traffic violations, vandalism, and possession of small amounts of drugs, and often result in court fines.

Hearings in these cases are handled by magistrate judges, and defendants often pay a fine without appearing in court. Fines are collected and case records are maintained by a national office, the Central Violations Bureau (CVB), which is based in San Antonio, Texas.

Reporters seeking CVB records should email media@ao.uscourts.gov. Under Judiciary policy, CVB records are subject to a search fee, and an estimate will be provided before the search is conducted. Records typically are limited to a copy of the citation, including a statement of the facts, and a summary of fine payments.

As with other federal criminal records, CVB case records are redacted to remove certain personally identifying information, such as street addresses and driver’s license numbers.

Some courts also make CVB case records available via PACER.