Page 112 - Ad Hoc Report June 2018
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States.”256 Given the volume of applications, DOJ requested volunteers and assis- tance in screening applications, and the Deputy Attorney General wrote a letter requesting the three FPDOs in the Washington, D.C. area to consider detailing one or two staff members from each office to assist in the initiative.257 Additionally, some U.S. district courts issued orders authorizing their district’s FPDO to represent applicants applying for clemency.258
In response to these initiatives and efforts, then AO Director Judge John Bates requested an opinion from the AO’s general counsel about the appropriateness of appointing CJA counsel or federal defenders. In a memo dated July 30, 2014, the General Counsel determined that district judges had no authority to appoint federal defenders or panel attorneys to represent non-capital clemency applicants. 259
Among other reasoning, the General Counsel’s memo addressed the language of the CJA which states, “A person for whom counsel is appointed shall be rep- resented at every stage of the proceedings from his initial appearance before the United States magistrate judge or the court through appeal, including ancillary mat- ters appropriate to the proceedings.”260 The AO’s General Counsel asserted that “the plain language of subsection (c) of section 3006A makes clear that courts’ authority to appoint counsel in ancillary matters extends only to those ancillary matters that are germane to judicial proceedings.”261
The memo notes that, “While courts have discretionary authority to appoint FPDOs to assist in various administrative tasks for the general benefit of their office, the courts, or the judiciary, there is no authority to appoint federal defenders or panel attorneys to represent individual non-capital clemency applicants.”262
The Committee heard from defenders and defender organizations about the impact the General Counsel memo had on the clemency process. The NACDL reported that, “Because defenders had the files, historical knowledge, and expertise to determine if their clients qualified for clemency, their non-participation has had a substantial negative impact on the ability to identify those who might qualify for clemency.”263 A defender stated, “These limitations on our representation deprive
256 had been convicted of low-level, non-violent crimes, had served at least ten years in prison, and had demonstrated good conduct in prison.
257 LegalmemofromRobertLoesche,AOGeneralCounseltoJudgeJohnBates,AODirector,
Authority to Appoint Criminal Justice Act Counsel in Non-Capital Clemency Matters and to Detail Federal Public Defender Office Staff to the Office of the Pardon Attorney, July 30, 2014 pg 2. Available on JNET, access restricted to judiciary employees, at attorneys.
258 Id.
259 Id.
260 18U.S.C.3006(a)(c).
261 LoescheMemoat6.
262 Id.at7.SeealsoMemorandumfromJudgeJohnD.Bates,Director,AdministrativeOfficeofU.S. Courts, and Judge Catherine C. Blake, Chair. Judicial Conference Committee on Defender Services, July 31, 2014 pg. 2.
263 NACDLReportat31.
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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