Page 54 - Ad Hoc Report June 2018
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BACKGROUND
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R E P O R T
O F
T H E
the attorney “is not amenable to administrative direction” from those who made the appointment.27 In Polk County, Chief Justice Burger emphasized genuine inde- pendence as a requirement:
[I]n providing counsel for an accused, the governmental participation
is very limited. Under Gideon v. Wainwright, 372 U. S. 335 (1963), and Argersinger v. Hamlin, 407 U. S. 25 (1972), the government undertakes only to provide a professionally qualified advocate wholly independent of the government. It is the independence from governmental control as to how the assigned task is to be performed that is crucial.28
Three years later the Court ruled in Strickland v. Washington that indepen- dence of appointed counsel is not merely aspirational, it is a “constitutionally pro- tected” principle.29 Thus, the Supreme Court has made clear that the right to effec- tive assistance under the Sixth Amendment requires counsel’s freedom “to make independent decisions about how to conduct the defense.”30
2.2 Moving Towards a Federal Defender Program
Long before the Supreme Court decided Gideon, the federal judiciary had called
for a formal system of indigent defense in the federal courts. As early as 1937,
the Judicial Conference of the United States recommended the establishment of defender offices where caseloads justified it.31 This suggestion was raised again
and again by the Judicial Conference for years.32 In 1947, the Director of the Administrative Office of the United States Courts sent a letter to the U.S. Senate Judiciary Committee calling the lack of compensation for appointed counsel a “defect in the federal judicial system” that needed to be fixed.33 Warren Olney, III, Director of the Administrative Office in 1959, testified before Congress that the
pro bono expectation was not only a burden on private attorneys but was unfair
to defendants as well. The Judiciary was not alone—the Attorneys General of the United States, the Department of Justice, and the American Bar Association all advocated alongside judges for a legislative solution to this Sixth Amendment crisis.
In 1961, Attorney General Robert F. Kennedy appointed the Committee on
27 Id.
28 Idat327.
29 Stricklandv.Washington,466U.S.668,689(1984).
30 Idat686.
31 TheReportoftheJudicialConferenceoftheUnitedStates,8–9(Sept.Sess.1937). 32 RobertJ.Kutak,TheCriminalJusticeActof1964,44NebLRev703,711(1965).
33 S.Rep.No.81–197,at2–3(1949).
No recommendation presented herein represents 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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