Page 28 - Ad Hoc Report June 2018
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prospects “until the time is right to take the next step.”19
Even while the judiciary continued to oversee implementation of the Criminal
Justice Act, Supreme Court rulings made clear that independence of counsel is more than an aspirational ideal—it is a “constitutionally protected” principle.20 In Polk County v. Dodson (1981), the Supreme Court again underscored that the State has
a “constitutional obligation to respect the professional independence of the public defenders whom it engages.... It is the independence from governmental control as to how the assigned task is to be performed that is crucial.”21
This same line of legal reasoning even predates passage of the Criminal Justice Act. In 1958, Judge E. Barrett Prettyman observed that:
The constitutional right of an accused to the assistance of counsel might well be destroyed if counsel’s selections upon tactical problems were supervised by a judge. The accused is entitled to the trial judgment of his counsel, not the tactical opinions of the judge. Surely a judge should not share the confidences shared by client and counsel. An accused bound to tactical decisions approved by a judge would not get the due process of law we have heretofore known.22
These constitutionally protected principles—that an advocate must act with professional independence seeking solely the best interests of the client—do not compel that a system providing counsel be designed in a particular way, but that these principals should inform the design. And when aspects of a public defense system compromise an advocate’s independent professional judgment, they are particularly troubling and must be carefully examined.
After two years of study, this Committee unanimously believes that the fed- eral defense program should be governed by an independent entity with the same mission as frontline defenders. Current governance of the program by the Judicial Conference of the United States and management by the Administrative Office of the U. S. Courts, with their different missions and competing budgetary needs, has led to fundamental fissures and inequities in a system that nearly 250,00023 people each year depend upon for effective representation in federal court.
The Criminal Justice Act had flourished under the judiciary in its infancy, and the Committee recognizes that without judicial assistance the program may not have been primed to govern itself. At this time, however, independence is not
19 S.Rep.No.91-790,at18(1970).
20 Stricklandv.Washington,466U.S.668,689(1984).
21 PolkCty.v.Dodson,454U.S.312,321-22,327(1981)(J.Burgerconcurring).
22 Mitchellv.UnitedStates,259F.2d787,793(D.C.Cir.1958).
23 U.S.FederalCourts,FederalJudicialCaseloadStatistics,CriminalJusticeAct–JudicialBusiness2016, (last visited July 26, 2017) (This is the number of CJA representations for 2016).
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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