Page 76 - Ad Hoc Report June 2018
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caseload whether by virtue of the number of cases or the complexity of the cases, or sudden changes in the law, places the quality of the repre- sentation at risk in my view.119
An example of a sudden change in constitutional law which gave rise to a need for staffing flexibility was the 2015 Supreme Court ruling in Johnson v. US, which held a portion of the Armed Career Criminal Act unconstitutional.120 Because a habeas petition seeking relief based on a new rule of constitutional law must be filed within one year of the Supreme Court’s ruling, defenders had only twelve months to review the cases of every individual sentenced under the Act, as well as those sentenced under similarly-worded acts, determine which individuals had valid claims for relief, and file habeas petitions in district court. Sentences under these acts are lengthy and thousands of individuals sentenced might still be impris- oned. Accordingly, defenders were required to review cases from as long as thirty years ago, and the volume of individuals potentially eligible for relief was staggering. In the end, the decision in Johnson resulted in a review of approximately 35,000 files and more than 10,000 petitions being filed as a result of that review. One federal defender told the Committee that after Johnson, “We have 1700 cases to review and probably about ten percent of those we want to file a [habeas petition], but we’re looking at this five year average that I can’t go out and hire people and Defender Services can’t give me people to deal with those cases.”121 Additionally, the workload increase was not uniform—some offices were barely affected while others reported to be still struggling to work through past cases to assist their clients. The inability of DSC to respond quickly to the staffing needs of defender offices in such situations inhibits the effective representation by those offices.122
3.3.2 AO Re‐organization and the Loss of Directorate Status of DSO
As described earlier, the Defender Services Office is the entity within the AO that provides leadership, direction, administration, management, oversight and sup- port for the federal appointed counsel system.123 Similar to the structural tensions discussed between the DSC and the larger JCUS, DSO operates within a structure that is predominantly focused on judges and court staff.
The Committee heard testimony from many witnesses that the re-organization
119 Mag.JudgeJonathanFeldman,W.D.N.Y.,PublicHearing—Philadelphia,Pa.,Panel1,Tr.,at6.
120 135S.Ct.2551.
121 ElizabethFord,Exec.Dir.,CDO,E.D.Tenn.,PublicHearing—Birmingham,Ala.,Panel6,Tr.,at32.
122 FromMiriamConrad:“Wehavesomedistrictswhereprosecutorshaveagreedtowaive
the statute of limitations. We have other districts where they haven’t. Each defender is trying to negotiate that and fight it out on its own.” Miriam Conrad, FPD, D. Mass. & D.N.H. & D.R.I., Public Hearing—Philadelphia, Pa., Panel 3, Tr., at 18.
123 AdministrativeOfficeofU.S.Courts,1AOManual§330.40.
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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