Page 296 - Ad Hoc Report June 2018
P. 296

 RECOMMENDATIONS
in Congress, who can cut the budget or not as appropriators see fit. Indeed, there have been years when judiciary funding has been cut when defender budgets
have not, and vice versa. For example, when Congress was determined to defund an aspect of the defender program, the Death Penalty Resource Centers, the full- throated defense of the program from the judiciary did nothing to save those Centers.1126 There is nothing currently preventing Congress from taking similar action today. Furthermore, one could argue Congress’s previous decision to defund was not based on an intent to intrude directly upon the provision of representation to an accused but rather because certain members of Congress became convinced that these Death Penalty Resource Centers were focused not on representation but on abolition of the death penalty. We recognize this concern and the Committee believes that any commission overseeing the defense function would be prudent to impose limits on its advocacy to instead focus on its Constitutional mandate.
Having spent the last two-hundred-fifty pages discussing the need for inde- pendence from the judiciary, a commission comprised entirely of judges would leave the program under the direction of a commission with significant ties with the judiciary. The new defender program should not be set up, again, with a fun- damental conflict of interest between its needs and those of the judiciary. Due to a combination of factors, when these conflicts have arisen, the defender program has suffered. The judgment of those judicial commissioners would be affected by both their perspective and their knowledge of the needs, resources, and best interests of the judiciary. These interests may at times be at odds with the best interests of an institution dedicated to supporting defenders.
While individual judges have long supported and advocated for the defender program, and judicial input will be important to any future commission, the Committee cannot endorse a commission comprised solely of judicial members.
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1126 GeorgeKendall,Director,PublicServiceInitiative,SquirePattonBoggs,PublicHearing-- Minneapolis, Minn., Panel 3, Tr., at 25.; Patricia L. Ragone and J. Michael Williams, Conference: The Death Penalty In The Twenty-First Century, 45 Am. U.L. Rev. 239, 346–347, December 1995 (From one participant, Ronald Tabak: “[I]t is important to realize that one very likely part of any crime bill that comes out of the new Congress that has just been elected would be an effort to eliminate the existing death penalty resource centers that deal with post-conviction representation. There have been a lot of political attacks made on these resource centers.”)
No recommendation presented herein represents T H E A D H O C C O M M I T T E E T O R E V I E W T H E C R I M I N A L J U S T I C E A C T the policy of the Judicial Conference of the United States unless approved by the Conference itself.

























































































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