Page 58 - Ad Hoc Report June 2018
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to be what might be described as the “least bad” option. Even from the beginning, Congress understood that the defense function was a mismatch with the mission and expertise of the Judiciary. As the Wall Street Journal reported in August of 1964:
Not surprisingly, this new administrative chore isn’t welcomed by the judges, already overburdened by crowded trial dockets. The Judicial Conference privately urged the Administration and Congress to find someone else to run the program. But the Justice Department couldn’t qualify because it is the prosecutor who will do battle with the appointed lawyers. The Department of Health, Education, and Welfare was elimi- nated for fear the program would pick up a “welfarism” label and falter on Capitol Hill. So the judges got the job.52
Judges at the time voiced their concerns about controlling a function that they believed should be independent. In 1969 Chief Justice Warren E. Burger lamented that the CJA had not created a separate entity to run the program. Having studied the program from its implementation, he agreed that “some independent supervi- sory agency” was appropriate, as he had concluded that the defender program had to be “insulated...from the judges.”53 He went on to state:
Now, I did not think that at the outset of the study. I became persuaded after I saw systems where either the judges were inattentive or where the machinery that grew up resulted in certain favorite lawyers getting the appointments, or some other such inadequacy. The judges, as I said before, must maintain a real and an active interest in all these things. But the governance of a public defender or a legal aid system should be insulated from the courts, insulated from the prosecutor; it should be an independent body of lawyers.54
Judges were not the only ones concerned about placing the federal defender program under the judiciary’s control. While considering the 1970 amendments to the Act, which gave districts the option of creating federal defender offices, a Senate report characterized placement in the judiciary as an “initial phase” from which the program should grow and evolve. The legislative history makes clear that Congress saw the judiciary as a temporary home for any defense program:
Clearly, the defense function must always be adversary in nature as well as high in quality. It would be just as inappropriate to place the direction of the defender system in the judicial arm of the government as it would be in the
52 TheWallStreetJournal,Aug.18,1964,p.10,col.3–4.
53 Proceedingsatthe1969JudicialConf.,U.S.CourtofAppeals,TenthCircuit:Min.Standardsfor
Criminal Justice, 49 F.R.D. 347, 374 (1969). 54 Id.
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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