CJA of 1963 Subcom No. 5, House Committee on Judiciary

CRIMINAL JUSTICE ACT

HEARING BEFORE SUBCOMMITTEE NO.. 5 OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES EIGHTY-EIGHTH CONGRESS FIRST SESSION

ON H.R. 1027, H.R. 3446, H.R. 3504, H.R. 41.56, H.R 4461, H.R. 4816, H.R. 5330, H.R. 5545, H.R. 5881, H.R& 5889, H.R. 6235, H.R. 6250, H.R. 6499, and H.R. 6765 TO PROMOTE THE CAUSE OF CRIMINAL JUSTICE BY PRO- VIDING FOR THE REPRESENTATION OF DEFENDANTS WHO ARE FINANCIALLY UNABLE TO OBTAIN AN ADEQUATE DEFENSE IN CRIMINAL CASES IN THE COURTS OF THE UNITED STATES

MAY 22, 1963

Serial No. 3

Printed for the use of the Committee on the Judiciary

U.S. GOVERNMENT PRINTING OFFICE

21-022 WASHINGTON : 1963 COMMITTEE ON THE JUDICIARY EMANUEL CELLER, New York, Chairman FRANCIS E. WALTER, Pennsylvania WILLIAM M. McCULLOCH, Ohio MICHAEL A. FEIGHAN, Ohio WILLIAM E. MILLER, New York FRANK CHELF, Kentucky RICHARD H. POFF, Virginia EDWIN E. WILLIS, Louisiana WILLIAM C. CRAMER, Florida PETER W. RODINO, JR., New Jersey ARCH A. MOORE, JR., West Virginia E. L. FORRESTER, Georgia GEORGE MEADER, Michigan BYRON 0. ROGERS, Colorado JOHN V. LINDSAY, New York HAROLD D. DONOHUE, Massachusetts WILLIAM T. CAHILL, New Jersey JACK B. BROOKS, Texas GARNER E. SHRIVER, Kansas WILLIAM M. TUCK, Virginia CLARK MACGREGOR, Minnesota ROBERT T. ASHMORE, South Carolina CHARLES McC. MATHIAS, JR., Maryland JOHN DOWDY, Texas JAMES E. BROMWELL, Iowa BASIL L. WHITENER, North Carolina CARLETON J. KING, New York ROLAND V. LIBONATI, Illinois PATRICK MINOR MARTIN, California HERMAN TOLL, Pennsylvania ROBERT W. KASTENMEIER, Wisconsin JACOB H. GILBERT, New York JAMES C. CORMAN, California WILLIAM L. ST. ONGE, Connecticut GEORGE F. SENNER, JR., Arizona BESS E. DICE, Staff Director WnLAM R. FOLEY, General Counsel WALTER M. BESTERMAN, Legislative Assistant CHARLES I. ZINe, Law Revision Counsel MURRAY DRABRIN, Counsel HERBERT FucHs, Counsel WILLAM P. SHATrUCK, Counsel WILIAM H. COPENHAVER, Associate Counsel

SUBCOMMITTEE No. 5

EMANUEL CELLER, New York, Chairman PETER W. RODINO, JR., New Jersey WILLIAM M. McCULLOCH, Ohio BYRON G. ROGERS, Colorado WILLIAM E. MILLER, New York HAROLD D. DONOHUE, Massachusetts GEORGE MEADER, Michigan JACK B. BROOKS, Texas WILLIAM C. CRAMER, Florida HERMAN TOLL, Pennsylvania ROBERT W. KASTENMEIER, Wisconsin WILLIAM R. FOLEY, General Counsel CONTENTS

Page Text of bills ------1-23 Testimony of- Battin, Hon. James F., Representative from Montana ------99 Burns, Lawrence, Esq., president, Ohio State Bar Association, Colum- bus, Ohio------115 Cummiskey, John W., Esq., chairman, Standing Committee on Legal Aid Work, American Bar Association ------127 Dimock, Hon, Edward J., U.S. District judge, Southern District of New York, New York, N.Y ------103 Kennedy, Hon. Robert F., the Attorney General of the United States- 29 Moore, Hon. Arch A., Jr., Representative from West Virginia ------85 Picotte, Gene A., Esq., president, Montana Bar Association, Helena, Mont ------23 Poff, Hon. Richard H., Representative from Virginia ------66 Seymour, Whitney North, Esq., chairman, Special Committee on Defense of Indigent Persons Accused of Crime, American Bar Association, New York, N.Y ------91 Smith, Sylvester C., Jr., Esq., president of the American Bar Associa- tion, Chicago, Ill ------125 Speiser, Lawrence, Esq., director, Washington Office, American Civil Liberties Union, Washington, D.C ------144 Stoner, James R., Esq., chairman, Junior Bar Conference, American Bar Association, Washington, D.C ------139 Whitener, Hon. Basil, Representative from North Carolina ------50 Statement of- American Federation of Labor and Congress of Industrial Organiza- tions, 815 16th Street, NW., Washington. D.C ------159 Bell, Hon. Alphonzo, Representative from California ------150 Boyd, Robert E., Esq., Assistant Attorney General of Ohio, Colum- bus, Ohio ------123 Farbstein, Hon. Leonard, Representative from New York ------152 Horton, Hon. Frank, Representative from New York ------153 National Legal Aid and Defender Association, 1155 East 60th Street, Chicago, Ill ------156 New York State Bar Association, 99 Washington Avenue, Albany, N.Y ------159 The State Bar of California, 601 McAllister Street, San Francisco, Calif ------159 Toll, Hon. Herman, Representative from Pennsylvania ------154 m

CRIMINAL JUSTICE ACT

WEDNESDAY, MAY 22, 1963

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE No. 4 OFRTHE COMMITTEE ON THE JUDICIARY Washington, D.C. The subcommittee met, pursuant to notice, at 10:00 a.m., in room 346, Old House Office Building, Washington, D.C., the Honorable Emanuel Cellar, Chair- man, presiding. Present: Messrs. Rodino, Rogers, Toll, Kastenmeier, McCulloch, Meader, and Cramer. Also present: William R. Foley, Esq., General Counsel, and William H. Copen- haver, Esq., associate counsel. Mr. CELLER. The meeting will come to order. Our first witness is Mr. Gene A. Picotte of the Montana Bar Association. I want to announce also that the Attorney General is on his way over, and in order to conserve time we will hear from Mr. Picotte first. I take it that his statement is a short one. (The bills are as follow:)

[H.R. 1027, 88th Con., Ist sess.] A BILL To provide for the representation of indigent defendants in criminal cases in the district courts of the United States Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That title 18 of the United States Code, section 3006, is hereby amended to read as follows: "SEC. 3006. PUBLIC DEFENDERS; REPRESENTATION OF INDIGENT DEFENDANTS. "(a) Each United States district court may, with the approval of the judicial council of the circuit, appoint a public defender at each place where terms of court are held. Whenever a district court is satisfied that the number of cases assigned to a public defender is greater than can be efficiently conducted by him, it may, with the approval of the judicial council of the circuit, appoint one or .more assistant public defenders. The public defender, with the approval of the court, may appoint necessary clerks and investigators as approved by the Director of the Administrative Office of the United States Courts. Public defenders or assistant public defenders may be full-time or part-time officers as the volume of work in the judgment of the court requires. "Whenever a court in which there is a public defender is satisfied that a person charged with a felony or misdemeanor, other than a petty offense, as defined by section 1 of this title, is financially unable to employ counsel, it shall assign the public defender to act as counsel, unless counsel has been waived. Where there are indigent defendants with such conflicting interests that they cannot all be properly represented by the same counsel, the court may appoint counsel separate from the public defender for one or more of them, or where the court deems the appointment of a counsel separate from or supplementary to the public defender is in the best interest of an individual defendant or defendants the court may appoint such counsel. The court may, in its discretion, appoint a legal aid society to provide such representation for indigent defendants. The compensation and reimbursement of expenses of such counsel shall be provided for in the same manner as is provided for counsel appointed under subsection (c) of this section. The public defender shall act as counsel for each defendant to whom he is assigned at every stage of the prosecution in any court of the United States including preliminary examination and arraignment unless after the assignment the court is satisfied that the defendant is able to employ other counsel or that there is just cause why the public defender so assigned should be permitted to withdraw CRIMINAL JUSTICE ACT

as counsel. Each district court may adpot appropriate rules governing the conduct of public defenders subject to general regulations on the subject, which may be adopted by the Judicial Conference of the United States. "(b) Appointment of public defenders or assistant public defenders shall be limited to attorneys who have practiced not less than five years before the bar of the State or territory in which the appointing disstrict court is located, unless the Judial Conference of the United States authorizes otherwise. Each public defender and assistant public defender shall be appointed for a term of four years and shall be paid a salary based upon the service to be performed, not exceeding the salary paid the United States attorney or assistant United States attorney in the same district, to be fixed by the Judicial Conference of the United States. In the performance of his duties he shall also be reimbursed for expenses necessarily incurred by him, including the costs of technical experts required by the defense, when approved by the district court. "(c) If a district court in a district not having a city of more than five hundred thousand population considers that the representation of indigent defendants in criminal cases can best be provided for by the appointment of counsel than by the appointment of a public defender, and no public defender is appointed; or "If a district court in a district having a city of over five hundred thousand population so considers, the judicial council of the circuit approves, and no public defender is appointed, the court may appoint counsel for indigent defendants in particular cases, which in the discretion of the court may be a legal aid society. Counsel so appointed may be compensated in amounts determined by the court upon the conclusion of the service, at a rate not in excess of $50 a day for time necessarily and properly expended in preparation and trial of the case, and may be reimbursed for expenses reasonably incurred in the representation and approved by the court. The aggregate amount expended for compensation and reimbursement by all such counsel in any district may not exceed $10,000 in any fiscal year. "(d) A public defender or counsel appointed by the court who represents an indigent defendant in a criminal case in the district court shall also represent him in appeal proceedings if either the district court of the court having jurisdiction of the appeal determines that there is no evident improper motive in taking the appeal and that an issue is presented which is not plainly frivolous. Services of the nature specified in this subsection rendered by a public defender are part of his duties and shall be performed without other compensation than his salary. Counsel appointed in the particular case may be compensated for such service in the measure specified in subsection (c) for such counsel and be reimbursed for such expenses as may be approved by the court allowing such appeal. Sums so paid for compensation and expenses of service on appeal are included in the maximum limit of $10,000 in any fiscal year imposed by subsection (c) in the respective districts from which the appeals are taken. "(e) There are authorized to be appropriated to the United States courts, out of any money in the Treasury not otherwise appropriated, sums necessary to carry out the provisions of this section. The annual appropriations for these purposes shall not exceed the fines, penalties, and forfeitures collected by the courts during the most recently completed fiscal year: Provided, That the Director of the Administrative Office of the United States Courts may allocate the appropriation to individual courts without reference to the fines, penalties, and forfeitures collected by a particular court. The salaries and expenses of public defenders and assistant public defenders and compensation and expenses of attorneys appointed by the courts to represent defendants in particular cases, above provided for, shall be paid out of appropriations available therefor under the supervision of the Director of the Administrative Office of the United States Courts. "(f) The term 'United States district court' as used in this section shall include the District Court of the Virgin Islands, the District Court of Guam, and the district courts of the United States created by chapter 5 of title 28, United States Code." SEC. 2. The analysis of chapter 201 of title 18, United States Code, is amended by striking out item 3006 and inserting in its place the following item: "3006. Public defenders; representation of indigent defendants." CRIMINAL JUSTICE ACT 3

[I.R. 3440, 88th Cong., 1st seas.] A BILL To amend title 1Sof the United States Code so as to allow compensation to counsel assigned by the court in criminal cases Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That chapter 201 of title 18 of the United States Code is amended by adding at the end thereof the following new section: "§ 3013. Compensation for assigned counsel "Counsel assigned by the court in any criminal case shall be entitled to reasonable compensation, in an amount to be determined by the court. Such compensation shall be paid, upon order of the court, out of such funds as may be provided by law." SEC. 2. The analysis of chapter 201 of title 18 of the United States Code is amended by adding at the end thereof the following: "3013. Compensation for assigned counsel." SEC. 3. No compensation shall be paid pursuant to this Act for services performed before the date of its enactment.

[H.R. 3504, 88th Cong., 1st sess.] A BILL To provide for the representation of indigent defendants in criminal cases in the United States district courts Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That title 18 of the United States Code is amended by adding immediately after section 3006 the following new section: "§ 3006A. Public defenders; representation of defendants "(a) Each United States district court may, with the approval of the judicial council of the circuit, appoint a public defender at each place where it holds a term of court. Whenever a district court is satisfied that the number of cases assigned to a public defender is greater than can be efficiently conducted by him, it may, with the approval of the judicial council of the circuit, appoint one or more assistant public defenders. The public defender, upon authorization by the court, may appoint such clerks and investigators as he determines necessary to enable him to carry out his duties under this section. Any such appointment shall be made subject to the approval of the Director of the Administrative Office of the United States Courts. Public defenders or assistant public defenders may be full-time or part-time officers as, in the judgment of the court, the volume of work of the court requires. "(b) Whenever a district court in which there is a public defender is satisfied that a defendant charged with a felony or misdemeanor (other than a petty offense as defined in section 1 of this title) is unable to employ counsel because he is indigent, it may assign the public defender to represent such defendant unless counsel has been properly waived. In any case in which the court determines that the interest of any such defendant cannot adequately be represented by a public defender, it shall have authority to appoint other counsel to represent such defendant. "(c) Any public defender or counsel appointed pursuant to this section to represent any defendant shall represent such defendant at every stage of the proceedings, including preliminary examination, arraignment and appeal, unless after such appointment the court is satisfied that the defendant is able to employ other available counsel or that there is just cause whey the public defender or counsel so appointed should be permitted to withdraw. Each district court may adopt appropriate rules governing the conduct of public defenders not inconsistent with general regulations issued by the Judicial Conference of the United States. "(d) Appointment of public defenders under this section shall be made by and with the advice and consent of the Senate and shall, unless otherwise provided by the Judicial Conference of the United States, be limited to attorneys who have practiced for five years or more before the bar of the State or possession in which the appointing district court isi ocated. Each public defender and assistant CRIMINAL JUSTICE ACT public defender shall be (1) appointed for a term of four years, (2) paid a salary based upon the service to be performed in an amount fixed by the Judicial Con- ference of the United States, and (3) reimbursed for reasonable expenses necessarily incurred by him (including the costs of technical experts required by the defense) in the performance of his duties and approved by the district court; except that in no case shall the salary of any public defender appointed under this section to serve in any district exceed the salary paid the United States attorney in such district. "(e) If any district court considers that the representation of indigent defendants charged with a felony or misdemeanor (other than a petty offense as defined in section 1 of this title) can best be provided for by the appointment of counsel rather than by the appointment of a full-time or part-time public defender as provided under subsection (a), the court shall have the authority to appoint counsel to represent indigent defendants in particular cases; except that no district court in a district having one or more cities of over five hundred thousand population shall exercise such authority without the approval of the judicial council of the circuit. "(f) Any counsel appointed by the court pursuant to this section to represent any defendant shall be (1) compensated by the court for his service upon the conclusion of such service at a rate not in excess of $100 a day for time necessarily and properly expended in preparation and defense of the case and any appeal; and (2) reimbursed for all reasonable expenses determined by the court to have been necessarily incurred by him in the representation of the defendant in accordance with the provisions of this section, including any expenses incurred in employing investigators and other personnel. "(g) Whenever a district court in which there is a public defender is satisfied that a defendant charged -ith a felony or misdemeanor (other than a petty offense as defined in section 1 of this title) is unable to obtain counsel for any reason other than the fact that such person is indigent, the district court may assign a public defender to represent such defendant, unless counsel has been properly waived. If a public defender has not been appointed for that district court or if the court determines that the interest of a defendant cannot adequately be represented by a public defender, it shall have authority to appoint other counstl to represent such defendant. "(h) Whenever any public defender or other counsel is assigned to represent any defendant under this section, such public defender or counsel shall not request or receive any payment, from or on behalf of such defendant, except upon approval of the court. If such approval is granted to the public defender, the amount so approved and received from or on behalf of the defendant shall be paid to the Administrative Office of the United States Courts and used by such office in carrying out the provisions of this section. If such approval is granted to counsel other than the public defender, the amount so approved and received by counsel shall be credited against the sum which the United States would otherwise pay to counsel under the provisions of this section. "(i) There are hereby authorized to be appropriated to the United States courts, out of any money in the Treasury not otherwise appropriated, sums necessary to carry out the provisions of this section. Notwithstanding any other provision of law or of the Federal Rules of Criminal Procedure, the salaries and expenses, including witness fees, of public defenders and assistant public defenders, and compensation and expenses, including witness fees, of counsel appointed to represent defendants in particular cases, above provided for, shall be paid out of appropriations made to the judiciary for operation of the public defender system under the supervision of the Director of the Administrative Office of the United States Courts. "(j) The terms 'United States district court' and 'district court' as used in this section shall include the District Court of the Virgin Islands, the District Court of Guam, the District Court of the Canal Zone, and the district courts of the United States created by chapter 5 of title 28 of the United States Code." SEc. 2. The analysis of chapter 201 of title 18 of the United States Code is amended by adding immediately after item 3006 the following new item: "3006A. Public defenders; representation of defendants." CRIMINAL JUSTICE ACT 5

[1I-.R. 4156, 88th Cong., 1st sess.] A BILL To provide for the representation of indigent defendants in criminal cases in the United States district courts Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That title 18 of the United States Code is amended by adding immediately after section 3006 the following new section: "§ 3006A. Public defenders; representation of defendants "(a) Each United States district court may, with the approval of the judicial council of the circuit, appoint a public defender at each place where it holds a term of court. Whenever a district court is satisfied that the number of cases assigned to a public defender is greater than can be efficiently conducted by him, it may, with the approval of the judicial council of the circuit, appoint one or more assistant public defenders. The public defender, upon authorization by the court, may appoint such clerks and investigators as he determines necessary to enable him to carry out his duties under this section. Any such appointment shall be made subject to the approval of the Director of the Administrative Office of the United States Courts. Public defenders or assistant public defenders may be full-time or part time officers as, in the judgment of the court, the volume of work of the court requires. "(b) Whenever a district court in which there is a public defender is satisfied that a defendant charged with a felony or misdemeanor (other than a petty offense as defined in section 1 of this title) is unable to employ counsel because he is indigent, it may assign the public defender to represent such defendant unless counsel has been properly waived. In any case in which the court deter mines that the interest of any such defendant cannot adequately be represented by a public defender, it shall have authority to appoint other counsel to represent such defendant. "(c) Any public defender or counsel appointed pursuant to this section to represent any defendant shall represent such defendant at every stage of the proceedings, including preliminary examination, arraignment and appeal, unless after such appointment the court is satisfied that the defendant is able to employ other available counsel or that there is just cause why the public defender or counsel so appointed should be permitted to withdraw. Each district court may adopt appropriate rules governing the conduct of public defenders not inconsistent with general regulations issued by the Judicial Conference of the United States. "(d) Appointment of public defenders under this section shall be made by and with the advice and consent of the Senate and shall, unless otherwise provided by the Judicial Conference of the United States, be limited to attorneys who have practiced for five years or more before the bar of the State or possession in which the appointing district court is located. Each public defender and assistant public defender shall be (1) appointed for a term of four years, (2) paid a salary based upon the service to be performed in an amount fixed by the Judicial Conference of the United States, and (3) reimbursed for reasonable expenses necessarily incurred by him (including the costs of technical experts required by the defense) in the performance of his duties and approved by the district court; except that in no case shall the salary of any public defender appointed under this section to serve in any district exceed the salary paid the United States attorney in such district. "(e) If any district court considers that the representation of indigent defendants charged with a felony or misdemeanor (other than a petty offense as defined in section I of this title) can best be provided for by the appointment of counsel rather than by the appointment of a full-time or part-time public defender as provided under subsection (a), the court shall have the authority to appoint counsel to represent indigent defendants in particular cases; except that no district court in a district having one or more cities of over five hundred thousand population shall exercise such authority without the approval of the judicial council of the circuit. "(f) Any counsel appointed by the court pursuant to this section to represent any defendant shall be (1) compensated by the court for his service upon the conclusion of such service at a rate not in excess of $100 a day for time necessarily and properly expended in preparation and defense of the case and any appeal; and (2) reimbursed for all reasonable expenses determined by the court to have been necessarily incurred by him in the representation of the defendant in accordance with the provisions of this section, including any expenses incurred in employing investigators and other personnel. 6 CRIMINAL TUSTICE ACT

"(g) Whenever a district court in which there is a public-defender is satisfied that a defendant charged with a felony or misdemeanor (other that a petty offense as defined in section 1 of this title) is unable to obtain counsel for any reason other than the fact that such person is indigent, the district court may assign a public defender to represent such defendant, unless counsel has been properly waived. If a public defender has not been appointed for that district court or if the court determines that the interest of a defendant cannot adequately be represented by a public defender, it shall have authority to appoint other counsel to represent such defendant. "(h) Whenever any public defender or other counsel is assigned to represent any defendant under this section, such public defender or counsel shall not request or receive any payment from or on behalf of such defendant, except upon approval of the court. If such approval is granted to the public defender, the amount so approved and received from or on behalf of the defendant shall be paid to the Administrative Office of the United States Courts and used by such office in carrying out the provisions of this section. If such approval is granted to counsel other than the public defender, the amount so approved and received by counsel shall be credited against the sum which the United States would otherwise pay to counsel under the provisions of this section. "(i) There are hereby authorized to be appropriated to the United States courts, out of any money in the Treasury not otherwise appropriated, sums necessary to carry out the provisions of this section. Notwithstanding any other provision of law or of the Federal Rules of Criminal Procedure, the salaries and expenses, including witness fees, of public defenders and assistant public defenders, and compensation and expenses, including witness fees, of counsel appointed to represent defendants in particular cases, above provided for, shall be paid out of appropriations made to the judiciary for operation of the public defender system under the supervision of the Director of the Administrative Office of the United States Courts. "(j) The terms 'United States district court' and 'district court' as used in this section shall include the District Court of the Virgin Islands, the District Court of Guam, the District Court of the Canal Zone, and the district courts of the United States created by chapter 5 of title 28 of the United States Code." SEC. 2. The analysis of chapter 201 of title 18 of the United States Code is amended by adding immediately after item 3006 the following new item: "3006A. Public defenders; representation of defendants."

[H.R. 4461, 88th Cong., 1st sess.] A BILL To amend title 1 of the United States Code, to provide for the payment of expenses of counsel assigned to indigent defendants Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) section 3006 of title 18 of the United States Code is amended to read as follows: "§ 3006. Assignment of counsel "(a) Where counsel is assigned to an indigent defendant by the court, the court shall ascertain reasonable compensation for such counsel, and certify the amount so ascertained to the Director of the Administrative Office of the United States Courts, who shall pay such amount to counsel out of funds appropriated therefor pursuant to this section. "(b) There is hereby authorized to be appropriated such sums as may be necessary to carry out this section.

"SEE FEDERAL RULES OF CRIMINAL PROCEDURE "Appointment by court, Rule 44. "Accused to be informed of right to counsel, Rules 5 and 44." (b) Item 3006 of the analysis of chapter 201 of title 18 of the United States Code is amended to read as follows: "3006. Assignment of counsel." CRIMINAL JUSTICE ACT

[H.R. 4816, 88th Cong., Ist sess.] A BILL To promote the cause of criminal justice by providing for the representation of defendants who are financially unable to obtain an adequate defense in criminal cases in the courts of the United States Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Criminal Justice Act of 1963." SEc. 2. Title 18 of the United States Code is amended by adding immediately after section 3006 the following new section: "§ 3006A. Adequate representation of defendants "(a) CHOICE OF PLAN.-Each United States district court, with the approval of the judicial council of the circuit, shall place in operation throughout the district a plan designed to effectuate the provisions of this section for furnishing representation for defendants charged with felonies or misdemeanors, other than petty offenses as defined in section 1 of this title, who are financially unable to obtain an adequate defense. Representation under each plan shall include counsel and such investigative, expert, and other services necessary to an adequate defense. The provision for counsel under each plan shall conform to one of the following: "(1) Representation by private attorneys; "(2) Representation by a full-time or part-time Federal public defender and assistants; "(3) Representation by attorneys furnished by a bar association, or a legal aid society or other local defender organization; or "(4) Representation according to a plan containing any combination of the foregoing. Prior to approving the plan for a district, the judicial council of the circuit shall supplement the plan with provisions for the representation on appeal of defendants financially unable to obtain representation. Consistent with the provisions of this section, the district court may modify a plan at any time with the approval of the judicial council of the circuit; it shall modify the plan when directed by the judicial council of the circuit. The district court shall notify the Director of the Administrative Office of the United States Courts of modifications in its plan. "(b) APPOINTMENT OF COUNSEL.-In every criminal case in which the defendant appears without counsel, the United States commissioner or the court shall advise the defendant that he has the right to be represented by counsel and that counsel will be appointed to represent him if he is *financially unable to obtain counsel. Unless the defendant waives the appointment of counsel, the United States commissioner or the court, if satisfied after appropriate inquiry that the defendant is financially unable to obtain counsel, shall appoint counsel to represent him. The United States commissioner or the court shall appoint separate counsel for defendants who have such conflicting interests that they cannot properly be represented by the same counsel, or when good cause is otherwise shown. "(c) DURATION AND SUBSTITUTION OF APPOINTstSNT.-A defendant for whom counsel is appointed shall be represented at every stage of the proceedings from his initial appearance before the United States commissioner or court, or from any subsequent stage at which counsel is appointed, through appeal. If at any time after the appointment of counsel the court having jurisdiction of the case is satisfied that the defendant is financially able to obtain counsel or to make partial payment for the representation, he may terminate the appointment of counsel or authorize payment as provided in subsection (h), as the interests of justice may dictate. The United States commissioner or the court may, in the interests of justice, substitute one appointed counsel for another at any stage of the proceedings. "(d) SERVICES OTHER THAN COUNSEL.-The plan for each district shall contain provisions for furnishing investigative, expert, or other services necessary to an adequate defense to each defendant determined by the United States commissioner or the court after appropriate inquiry to be financially unable to obtain them. The plan shall set forth the circumstances under which specific authorization will be required for a defendant to obtain particular services. Any plan may provide for services to be furnished by salaried staff personnel or by personnel retained specially in each case, or by a combination of such means. Except where services are rendered by salaried staff personnel, the court which authorized them, or the district court in any case in which the United States commissioner authorized them, shall direct the payment of reasonable compensation to the person who rendered them. A claim for compensation shall be supported by an affidavit specifying the time expended, services rendered, and expenses incurred on behalf of the defendant, and the compensation received in the same case from any other source. 8 CRIMINAL JUSTICE ACT

"(e) PRIVATE ATTORNEYS.-A private attorney appointed pursuant to this section shall at the conclusion of the representation or any segment thereof be compensated at a rate not exceeding $15 per hour for time reasonably expended and be reimbursed for expenses reasonably incurred. A separate claim for compensation and reimbursement shall be made to the district court for representation before the United States commissioner or that court, and to each appellate court before which the attorney represented the defendant. Each claim shall be supported by an affidavit specifying the time expended, services rendered, and expenses incurred while the case was pending before the United States commissioner or court, and the compensation and reimbursement applied for or received in the same case from any other source. The court shall, in each instance, fix the compensation and reimbursement to be paid to the attorney. "(f) FEDERAL PUBLIC DEFENDERS.-A Federal public defender who is to serve in any district pursuant to this section shall be appointed by the judicial council of the circuit after receiving recommendations from the district court. Such appointment, whether on a full-time or part-time basis, shall be for a term of four years unless sooner terminated by the judicial council of the circuit for incompetency, misconduct, or neglect of duty. The salary of a full-time Federal public defender shall not exceed that of the United States attorney in the same district; the salary of a part-time Federal public defender shall be adjusted accordingly. The Federal public defender may employ assistant Federal public defenders at salaries not to exceed the highest salary authorized to be paid to an assistant United States attorney in the same district, and part-time assistants at salaries adjusted accordingly. The Federal public defender may also employ full-time or part-time investigative, expert, clerical, and other personnel necessary to the efficient performance of the duties of his office. "(g) LOCAL DEFENDERs.-A bar association, or legal aid society or other local defender organization which furnishes attorneys pursuant to this section shall at the conclusion of each representation or any segment thereof be compensated at a rate not exceeding $15 per hour for time reasonably expended by its attorneys and be reimbursed for expenses reasonably incurred. A separate claim for compensation and reimbursement shall be made to the district court for representation before the United States commissioner or that court, and to each appellate court before which the organization's attorneys represented the defendant. The claim shall be supported by an affidavit specifying the time expended, services rendered, and expenses incurred while the case was pending before the United States commissioner or court, and the compensation and reimbursement applied for or received in the same case from any other source. The court shall, in each instance, fix the compensation and reimbursement to be paid to the organization. "(h) RECEIPT OF OTHER PAYMENTs.-Whenever the court is satisfied that money is available for payment from or on behalf of a defendant, he may authorize or direct that it be paid to appointed counsel or to any person authorized pursuant to subsection (d) to assist in the representation, or to the court for deposit in the United States Treasury as a reimbursement to the appropriation, current at the time of payment, to carry out the provisions of this section. Except as so authorized or directed, no such person may request or accept any payment or promise of payment for assisting in the representation of a defendant. "(i)PENALTIEs.-False affidavits filed pursuant to subsections (d), (e), or (g), and false statements made by defendants in the course of inquiries conducted under subsections (b) or (d) for the purpose of securing counsel or services, shall subject the persons making such affidavits or statements to the penalties prescribed by law. "(j) REPORT.-Each district court and judicial council of a circuit shall submit a report on the operation of the plan within its jurisdiction to the Director of the Administrative Office of the United States Courts in such form and at such times as the Judicial Conference of the United States may specify. "(k) APPRoPRIATION.-There are authorized to be appropriated to the United States courts, out of any money in the Treasury not otherwise appropriated, sums necessary to carry out the provisions of this section. When so specified in appropriation acts, such appropriations shall remain available until expended. Pay- ments from such appropriations shall be made under the supervision of the Director of the Administrative Office of the United States Courts. "(1) DISTRICTS INCLUDED.-The term "district court" as used in this section includes the District Court of the Virgin Islands, the District Court of Guam, and the district courts of the United States created by chapter 5 of title 28, United States Code." CRIMINAL JUSTICE ACT

SEC. 3. The analysis of chapter 201 of title 18, United States Code, is amended by adding immediately after section 3006 the following new item : "3006A. Adequate representation of defendants." SEC. 4. Each district court shall within six months from the date of this enactment submit to the judicial council of the circuit a plan formulated in accordance with section 2. Each judicial council shall within nine months from the date of this enactment approve and transmit to the Administrative Office of the United States Courts a plan for each district in its circuit. Each district court and court of appeals shall place its approved plan in operation within one year from the date of this enactment.

[H.R. 5330, 88th Cong., 1st sess.]

A BILL To promote the cause of criminal justice by providing for the representation of defendants who are financially unable to obtain an adequate delense in criminal cases in the courts of the United States Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Criminal Justice Act of 1963." SEc. 2. Title 18 of the United States Code is amended by adding immediately after section 3006 the following new section: "§ 3006A. Adequate representation of defendants "(a) CHOICE OF PLAN.-Each United States clistrict court, with the approval of the judicial council of the circuit, shall place in operation throughout the district a plan designed to effectuate the provisions of this section for furnishing representation for defendants charged with felonies or misdemeanors, other than petty offenses as defined in section 1 of this title, who are financially unable to obtain an adequate defense. Representation under each plan shall include counsel and such investigative, expert, and other services necessary to an adequate defense. The provision for counsel under each plan shall conform to one of the following: "(1) Representation by private attorneys; "(2) Representation by a full-time or part-time Federal public defender and assistants; "(3) Representation by attorneys furnished by a bar association, or a legal aid society or other local defender organization; or "(4) Representation according to a plan containing any combination of the foregoing. Prior to approving the plan for a district, the judicial council of the circuit shall supplement the plan with provisions for the representation on appeal of defendants financially unable to obtain representation. Consistent with the provisions of this section, the district court may modify a plan at any time with the approval of the judicial council of the circuit; it shall modify the plan when directed by the judicial council of the circuit. The district court shall notify the Director of the Administrative Office of the United States Courts of modifications in its plan. "(b) APPOINTMENT OF COUNSEL.-In every criminal case in which the defendant appears without counsel, the United States commissioner or the court shall advise the defendant that he has the right to be represented by counsel and that counsel will be appointed to represent him if he is financially unable to obtain counsel. Unless the defendant waives the appointment of counsel, the United States commissioner or the court, if satisfied after appropriate inquiry that the defendant is financially unable to obtain counsel, shall appoint counsel to represent him. The United States commissioner or the court shall appoint separate counsel for defendants who have such conflicting interests that they cannot properly be represented by the same counsel, or when good cause is otherwise shown. "(c) DURATION AND SUBSTITUTION OF APPOINTMENTS.-A defendant for whom counsel is appointed shall be represented at every stage of the proceedings from his initial appearance before the United States commissioner or court, or from any subsequent stage at which counsel is appointed, through appeal. If at any time after the appointment of counsel the court having jurisdiction of the case is satisfied that the defendant is financially able to obtain counsel or to make partial payment for the representation, he may terminate the appointment of counsel or authorize payment as provided in subsection (h), as the interests of justice may dictate. The United States commissioner or the court may, in 10 CRIMNAL JUSTICE ACT

the interests of justice, substitute one appointed counsel for another at any stage of the proceedings. "(d) SERVICES OTHER THAN COUNSEL-The plan for each district shall contain provisions for furnishing investigative, expert, or other services necessary to an adequate defense to each defen-dant determined by the United States commissioner or the court after appropriate inquiry to be financially unable to obtain them. The plan shall set forth the circumstances under which specific authorization will be required for a defendant to obtain particular services. Any plan may provide for services to be funrshed by salaried staff personnel or by personnel retained specially in each case, or by a combination of such means. Except where services are rendered by salaried staff personnel, the court which authorized them, or the district court in any case in which the United States commissioner authorized them, shall direct the payment of reasonable compensation to the person who rendered them. A claim for compensation shall be supported by an affidavit specifying the time expended, services rendered, and expenses incurred on behalf of the defendant, and the compensation received in the same case from any other source. "(e) PRIVATE ATTORNEYS.-A private attorney appointed pursuant to this section shall at the conclusion of the representation or any segment thereof be compensated at a rate not exceeding $15 per hour for time reasonably expended and be reimbursed for expenses reasonably incurred. A separate claim for compensation and reimbursement shall be made to the district court for representation before the United States commissioner or that court, and to each appellate court before which the attorney represented the defendant. Each claim shall be supported by an affidavit specifying the time expended, services rendered, and expenses incurred while the case was pending before the United States commissioner or court, and the compensation and reimbursement applied for or received in the same case from any other source. The court shall, in each instance, fix the compensation and reimbursement to be paid to the attorney. "(f) FEDERAL.PUBLIC DEFENDERS.-A Federal public defender who is to serve in any district pursuant to this section shall be appointed by the judicial council of the circuit after receiving recommendations from the district court. Such appointment, whether on a full-time or part-time basis, shall be for a term of four years unless sooner terminated by the judicial council of the circuit for incompetency, misconduct, or neglect of duty. The salary of a full-time Federal public defender shall not exceed that of the United States attorney in the same district; the salary of a part-time Federal public defender shall be adjusted accordingly. The Federal public defender may employ assistant Federal public defenders at salaries not to exceed the highest salary authorized to be paid to an assistant United States attorney in the same district, and part-time assistants at salaries adjusted accordingly. The Federal public defender may also employ full-time or part-time investigative, expert, clerical, and other personnel necessary to the efficient performance of the duties of his office. "(g) LOCAL DEFENDERS.-A bar association, or legal aid society or other local defender organization which furnishes attorneys pursuant to this section shall at the conclusion of each representation or any segment thereof be compensated at a rate not exceeding $15 per hour for time reasonably expended by its attorneys and be reimbursed for expenses reasonably incurred. A separate claim for compensation and reimbursement shall be made to the district court for representation before the United States commissioner or that court, and to each appellate court before which the organization's attorneys represented the defendant. The claim shall be supported by an affidavit specifying the time expended, services rendered, and expenses incurred while the case was pending before the United States commissioner or court, and the compensation and reimbursement applied for or received in the same case from any other source. The court shall, in each instance, fix the compensation and reimbursement to be paid to the organization. "(h) RECEIPT OF OTHER PA.YMENTS.-Whenever the court is satisfied that money is available for payment from or on behalf of a defendant, he may authorize or direct that it be paid to appointed counsel or to any person authorized pursuant to subsection (d) to assist in the representation, or to the court for deposit in the United States Treasury as a reimbursement to the appropriation, current at the time of payment, to carry out the provisions of this section. Except as so authorized or directed, no such person may request or accept any payment or promise of payment for assisting in the representation of a defendant. "(i) PENALTIES.-False affidavits filed pursuant to subsections (d), (e), or (g), and false statements made by defendants in the course of inquiries conducted under subsections (b) or (d) for the purpose of securing counsel or services, shall CRIMINAL JUSTICE ACT subject the persons making such affidavits or statements to the penalties prescribed by law. "(j) REPoRTs.-Each district court and judicial council of a circuit shall submit a report on the operation of the plan within its jurisdiction to the Director of The Administrative Office of the United States Courts in such form and at such times as the Judigial Conference of the United States may specify. "(k) APPROPRIATIOs.-There are authorized to be appropriated to the United States courts, out of any money in the Treasury not otherwise appropriated, sums necessary to carry out the provisions of this section. When so specified in appropriation acts, such appropriations shall remain available until expended. Payments from such appropriations shall be made under the supervision of the Director of the Administrative Office of the United States Courts. "(1) DISTRICTS INCLUDED.-The term 'district court' as used in this section includes the District Court of the Virgin Islands, the District Court of Guam, and the district courts of the United States created by chapter 5 of title 28, United States Code." SEC. 3. The analysis of chapter 201 of title 18, United States Code, is amended by adding immediately after section 3006 the following new item: "3006A. Adequate representation of defendants." SEC. 4. Each district court shall within six months from the date of this enactment submit to the judicial council of the circuit a plan formulated in accordance with section 2. Each judicial council shall within nine months from the date of this enactment approve and transmit to the Administrative Office of the United States Courts a plan for each district in its circuit. Each district court and court of appeals shall place its approved plan in operation within one year from the date of this enactment.

[H.R. 5545, 88th Cong., 1st sess.] A BILL To promote the cause of criminal justice by providing for the representation of defendants who are financially unable to obtain an adequate defense in criminal cases in the courts of the United States Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Criminal Justice Act of 1963." SEC. 2. Title 18 of the United States Code is amended by adding immediately after section 3006 the following new section: "§ 3006A. Adequate representation of defendants "(a) CHOICE OF PLAN.-Each United States district court, with the approval of the judicial council of the circuit, shall place in operation throughout the district a plan designed to effectuate the provisions of this section for furnishing representation for defendants charged with felonies or misdemeanors, other than petty offenses as defined in section 1 of this title, who are financially unable to obtain an adequate defense. Representation under each plan shall include counsel and such investigative, expert, and other services necessary to an adequate defense. The provision for counsel under each plan shall conform to one of the following: "(1) Representation by private attorneys; "(2) Representation by a full-time or part-time Federal public defender and assistants; "(3) Representation by attorneys furnished by a bar association, or a legal aid society or other local defender organization; or "(4) Representation according to a plan containing any combination of the foregoing. Prior to approving the plan for a district, the judicial council of the circuit shall supplement the plan with provisions for the representation on appeal of defendants financially unable to obtain representation. Consistent with the provisions of this section, the district court may modify a plan at any time with the approval of the judicial council of the circuit; it shall modify the plan when directed by the judicial council of the circuit. The district court shall notify the Director of the Administrative Office of the United States Courts of modifications in its plan. "(b) APPOINTMENT OF COUNSEL.-In every criminal case in which the defendant appears without counsel, the United States commissioner or the court shall advise the defendant that he has the right to be represented by counsel and that CRIMINAL JUSTICE ACT

counsel will be appointed to represent him if he is financially unable to obtain counsel. Unless the defendant waives the appointment of counsel, the United States commissioner or the court, if satisfied after appropriate inquiry that the defendant is financially unable to obtain counsel, shall appoint counsel to represent him. The United States commissioner or the court shall appoint separate counsel for defendants who have such conflicting interests that they cannot properly be represented by the same counsel, or when good cause is otherwise shown. "(c) DURATION AND SUBSTITUTION OF APPOINTMENTs.-A defendant for whom counsel is appointed shall be represented at every stage of the proceedings from his initial appearance before the United States commissioner or court, or from any subsequent stage at which counsel is appointed, through appeal. If at any time after the appointment of counsel the court having jurisdiction of the case is satisfied that the defendant is financially able to obtain counsel or to make partial payment for the representation, he may terminate the appointment of counsel or authorize payment as provided in subsection (h), as the interests of justice may dictate. The United States commissioner or the court may, in the interests of justice, substitute one appointed counsel for another at any stage of the proceedings. "(d) SERVICES OTHER THAN COUNSEL.-The plan for each district shall contain provisions for furnishing investigative, expert, or other services necessary to an adequate defense to each defendant determined by the United States commissioner or the court after appropriate inquiry to be financially unable to obtain them. The plan shall set forth the circumstances under which specific authorization will be required for a defendant to obtain particular services. Any plan may provide for services to be furnished by salaried staff personnel or by personnel retained specially in each case, or by a combination of such means. Except where services are rendered by salaried staff personnel, the court which authorized them, or the district court in any case in which the United States commissioner authorized them, shall direct the payment of reasonable compensation to the person who rendered them. A claim for compensation shall be supported by an affidavit specifying the time expended, services rendered, and expenses incurred on behalf of the defendant, and the compensation received in the same case from any other source. "(e) PRIVATE ATTORNEYS.-A private attorney appointed pursuant to this section shall at the conclusion of the representation or any segment thereof be compensated at a rate not exceeding $15 per hour for time reasonably expended and be reimbursed for expenses reasonably incurred. A separate claim for compensation and reimbursement shall be made to the district court for representation before the United States commissioner or that court, and to each appellate court before which the attorney represented the defendant. Each claim shall be supported by an affidavit specifying the time expended, services rendered, and expenses incurred while the case was pending before the United States commissioner or court, and the compensation and reimbursement applied for or received in the same case from any other source. The court shall, in each instance, fix the compensation and reimbursement to be paid to the attorney. "(f) FEDERAL PUBLIC DEFENDERS.-A Federal public defender who is to serve in any district pursuant to this section shall be appointed by the judicial council of the circuit after receiving recommendations from the district court. Such appointment, whether on a full-time or part-time basis, shall be for a term of four years unless sooner terminated by the judicial council of the circuit for incompetency, misconduct, or neglect of duty. The salary of a full-time Federal public defender shall not exceed that of the United States attorney in the same district; the salary of a part-time Federal public defender shall be adjusted accordingly. The Federal public defender may employ assistant Federal public defenders at salaries not to exceed the highest salary authorized to be paid to an assistant United States attorney in the same district, and part-time assistants at salaries adjusted accordingly. The Federal public defender may also employ full-time or part-time investigative, expert, clerical, and other personnel necessary to the efficient performance of the duties of his office. "(g) LOCAL DEFENDERS.-A bar association, or legal aid society or other local defender organization which furnishes attorneys pursuant to this section shall at the conclusion of each representation or any segment thereof be compensated at a rate not exceeding $15 per hour for time reasonably expended by its attorneys and be reimbursed for expenses reasonably incurred. A separate claim for compensation and reimbursement shall be made to the district court for representation before the United States commissioner or that court, and to each appellate court before which the organization's attorneys represented the defendant. CRIMINAL JUSTICE ACT

The claim shall be supported by an affidavit specifying the time expended, services rendered, and expenses incurred while the case was pending before the United States commissioner or court, and the compensation and reimbursement applied for or received in the same case from any other source. The court shall, in each instance, fix the compensation and reimbursement to be paid to the organization. "(h) RECEIPT OF OTHER PAYMENTs.-Whenever the court is satisfied that money is available for payment from or on behalf of a defendant, he may authorize or direct that it be paid to appointed counsel or to any person authorized pursuant to subsection (d) to assist in the representation, or to the court for deposit in the United States Treasury as a reimbursement to the appropriation, current at the time of payment, to carry out the provisions of this section. Except as so authorized or directed, no such person may request or accept any payment or promise of payment for assisting in the representation of a defendant. "(i) PENALTIES.-False affidavits filed pursuant to subsections (d), (e), or (g), and false statements made by defendants in the course of inquiries conducted under subsections (b) or (d) for the purpose of securing counsel or services, shall subject the persons making such affidavits or statements to the penalties prescribed by law. "(j) REPORTS.-Each district court and judicial council of a circuit shall submit a report on the opera~ion of the plan within its jurisdiction to the Director of the Administrative Office of the United States Courts in such form and at such times as the Judicial Conference of the United States may specify. "(k) APPROPRIATION s.--There are authorized to be appropriated to the United States courts, out of any money in the Treasury not otherwise appropriated, sums necessary to carry out the provisions of this section. When so specified in appropriation acts, such appropriations shall remain available until expended. Payments from such appropriations shall be made under the supervision of the Director of the Administrative Office of the United States Courts. "(1) DISTRICTS INCLUDED.-The term "district court" as used in this section includes the District Court of the Virgin Islands, the District Court of Guam, and the nistrict courts of the United States created by chapter 5 of title 28, United States Code." SEC. 3. The analysis of chapter 201 of title 18, United States Code, is amended by adding immediately after section 3006 the following new item: "3006A. Adequate representation of defendants.", SEC. 4. Each district court shall within six months from the date of this enactment submit to the judicial council of the circuit a plan formulated in in accordance with section 2. Each judicial council shall within nine months from the date of this enactment approve and transmit to the Administrative Office of the United States Courts a plan for each district in its circuit. Each district court and court of appeals shall place its approved plan in operation within one year from the date of this enactment.

[H.R. 5881, 88th Cong., 1st sess.]

21-022-63- 2 CRIMINAL JUSTICE ACT

"(2) Representation by a full-time or part-time Federal public defender and assistants; "(3) Representation by attorneys furnished by a bar association, or a legal aid society or other local defender organization; or "(4) Representation according to a plan containing any combination of the foregoing. Prior to approving the plan for a district, the judicial council of the circuit shall supplement the plan with provisions for the representation on appeal of defendants financially unable to obtain representation. Consistent with the provisions of this section, the district court may modify a plan at any time with the approval of the judicial council of the circuit; it shall modify the plan when directed by the judicial council of the circuit. The district court shall notify the Director of the Administrative Office of the United States Courts of modifications in its plan. "(b) APPOINTMENT OF COUNSEL.-In every criminal case in which the defendant appears without counsel, the United States commissioner or the court shall advise the defendant that he has the right to be represented by counsel and that counsel will be appointed to represent him if he is financially unable to obtain counsel. Unless the defendant waives the appointment of counsel, the United States commissioner or the court, if satisfied after appropriate inquiry that the defendant is financially unable to obtain counsel, shall appoint counsel to represent him. The United States commissioner or the court shall appoint separate counsel for defendants who have such conflicting interests that they cannot properly be represented by the same counsel, or when good cause is otherwise shown. "(c) DURATION AND SUBSTITUTION OF APPOINTMENTS.-A defendant for whom counsel is appointed shall be represented at every stage of the proceedings from his initial appearance before the United States commissioner or court, or from any subsequent stage at which counsel is appointed, through appeal. If at any time after the appointment of counsel the court having jurisdiction of the case is satisfied that the defendant is financially able to obtain counsel or to make partial payment for the representation, he may terminate the appointment of counsel or authorize payment as prqvided in subsection (h), as the interests of justice may dictate. The United States commissioner or the court may, in the interests of justice, substitute one appointed counsel for another at any stage of the proceedings. "(d) SERVICES OTHER THAN COUNSEL.-The plan for each district shall contain provisions for furnishing investigative, expert, or other services necessary to an adequate defense to each defendant determined by the United States commissioner or the court after appropriate inquiry to be financially unable to obtain them. The plan shall set forth the circumstances under which specific authorization will be required for a defendant to obtain particular services. Any plan may provide for services to be furnished by salaried staff personnel or by personnel retained specially in each case, or by a combination of such means. Except where services are rendered by salaried staff personnel, the court which authorized them, or the district court in any case in which the United States commissioner authorized them, shall direct the payment of reasonable compensation to the person who rendered them. A claim for compensation shall be supported by an affidavit specifying the time expended, services rendered, and expenses incurred on behalf of the defendant, and the compensation received in the same case from any other source. "(e) PRIVATE ATTORNEYS.-A private attorney appointed pursuant to this section shall at the conclusion of the representation or any segment thereof be compensated at a rate not exceeding $15 per hour for time reasonably expended and be reimbursed for expenses reasonably incurred. A separate claim for compensation and reimbursement shall be made to the district court for representation before the United States commissioner or that court, and to each appellate court before which the attorney represented the defendant. Each claim shall be supported by an affidavit specifying the time expended, services rendered, and expenses incurred while the case was pending before the United States commissioner or court, and the compensation and reimbursement applied for or received in the same case from any other source. The court shall, in each instance, fix the compensation and reimbursement to be paid to the attorney. "(f) FEDERAL PUBLIC DEFENDERs.-A Federal public defender who is to serve in any district pursuant to this section shall be appointed by the judicial council CRIMINAL JUSTICE ACT

of the circuit after receiving recommendations from the district court. Such appointment, whether on a full-time or part-time basis, shall be for a term of four years unless sooner terminated by the judicial council of the circuit for incompetency, misconduct, or neglect of duty. The salary of a full-time Federal public defender shall not exceed that of the United States attorney in the same district; the salary of a part-time Federal public defender shall be adjusted accordingly. The Federal public defender may employ assistant Federal public defenders at salaries not to exceed the highest salary authorized to be paid to an assistant United States attorney in the same district, and part-time assistants at salaries adjusted accordingly. The Federal public defender may also employ full-time or part-time investigative, expert, clerical, and other personnel necessary to the efficient performance of the duties of his office. "(g) LOCAL DEFENDnERs.-A bar association, or legal aid society or other local defender organization which furnishes attorneys pursuant to this section shall at the conclusion of each representation or any segment thereof be compensated at a rate not exceeding $15 per hour for time reasonably expended by its attorneys and be reimbursed for expenses reasonably incurred. A separate claim for compensation and reimbursement shall be made to the district court for representation before the United States commissioner or that court, and to each appellate court before which the organization's attorneys represented the defendant. The claim shall be supported by an affidavit specifying the time expended services rendered, and expenses incurred while the case was pending before the tnited States commissioner or court, and the compensation and reimbursement applied for or received in the same case from any other source. The court shall, in each instance, fix the compensation and reimbursement to be paid to the organization. "(h) RECEIPT OF OTHER PAYMENTS.-Whenever the court is satisfied that money is available for payment from or on behalf of a defendant, he may authorize or direct that it be paid to appointed counsel or to any person authorized pursuant to subsection (d) to assist in the representation, or to the court for deposit in the United States Treasury as a reimbursement to the appropriation, current at the time of payment, to carry out the provisions of this section. Except as so authorized or directed, no such person may request or accept any payment or promise of payment for assisting in the representation of a defendant. !'(i) PENALTIES.-False affidavits filed pursuant to subsections (d), (e), or (g), and false statements made by defendants in the course of inquiries conducted under subsections (b) or (d) for the purpose of securing counsel or services, shall subject the persons making such affidavits or statements to the penalties prescribed by law. "(j) REORTS.-Each district court and judicial council of a circuit shall submit a report on the operation of the plan within its jurisdiction to the Director of the Administrative Office of the United States Courts in such form and at such times as the Judicial Conference of the United States may specify. "(k) APPROPRIATrONs.-There are authorized to be appropriated to the United States courts, out of any money in the Treasury not otherwise appropriated, sums necessary to carry out the provisions of this section. When so specified in appropriation acts, such appropriations shall remain available until expended. Pay- ments from such appropriations shall be made under the supervision of the Director of the Administrative Office of the United States Courts. "(1) DISTRICTS INCLUDED.-The term "district court" as used in this section includes the District Court of the Virgin Islands, the District Court of Guam, and the district courts of the United States created by chapter 5 of title 28, United States Code." SEC. 3. The analysis of chapter 201 of title 18, United States Code, is amended by adding immediately after section 3006 the following new item: "3006A. Adequate representation of defendants" SEC. 4. Each district court shall within six months from the date of this enactment submit to the judicial council of the circuit a plan formulated in accordance with section 2. Each judicial council shall within nine months from the date of this enactment approve and transmit to the Administrative Office of the United States Courts a plan for each district in its circuit. Each district court and court of appeals shall place its approved plan in operation within one year from the date of this enactment. 16 CRIMINAL JUSTICE ACT

[H.R.5889, 88th Cong., 1st sess.] A BILL To provide legal assistance for indigent defendants in criminal cases in United States courts Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Indigent Defendants Act of 1963". SEc. 2. (a) Title 18 of the United States Code is amended by adding immediately after section 3006 the following new section: "§ 3006A. Representation of indigent defendants "(a) In every criminal case arising under laws of the United States in which the defendant appears without counsel, the United States commissioner or the court shall advise the defendant that he has the right to be represented by counsel and that counsel will be appointed to represent him if he is financially unable to obtain counsel. Unless the defendant waives the appointment of counsel, the United States commissioner or the court, if satisfied after appropriate inquiry that the defendant is financially unable to obtain counsel, shall appoint counsel to represent him. The United States commissioner or the court shall appoint separate counsel for defendants who have such conflicting interests that they cannot properly be represented by the same counsel, or when good cause is otherwise shown. "(b) A defendant for whom counsel is appointed shall be represented at every stage of the proceedings from his initial appearance before the United States commissioner or court, or from any subsequent stage at which counsel is appointed, through appeal. If at any time after the appointment of counsel the court having jurisdiction of the case is satisfied that the defendant is financially able to obtain counsel or to make partial payment for the representation, he may terminate the appointment of counsel or authorize payment as provided in subsection (f), as the interest of justice may dictate. The United States commissioner or the court may, in the interests of justice, substitute one appointed counsel for another at any stage of the proceedings. "(c) An attorney appointed pursuant to this section shall at the conclusion of the representation or any segment thereof be compensated at a rate not exceeding $15 per hour for time expended in court and $10 per hour for time reasonably expended outside of court, and shall be reimbursed for expenses reasonably *incurred. A separate claim for compensation and reimbursement shall be made to the district court for representation before the United States commissioner or that court, and to each appellate court before which the attorney represented the defendant. Each claim shall be supported by an affidavit specifying the time expended, services rendered, and expenses incurred while the case was pending before the United States commissioner or court, and the compensation and reimbursement applied for or received in the same case from any other source. The court shall, in each instance, fix the compensation and reimbursement to be paid to the attorney. "(d) In the alternative to the appointment of counsel under this section, the United States commissioner or the court may assign a counsel who is made available by a bar association, legal aid society, or other local defender organization. At the conclusion of the representation or any segment thereof the organization which made the attorney available shall be compensated at a rate not exceeding $15 per hour for time expended by that attorney in court and $10 per hour for time reasonably expended outside of court, and shall be reimbursed for expenses reasonably incurred. A separate claim for compensation and reimbursement shall be made to the district court for representation before the United States commissioner or that court, and to each appellate court before which such attorney represented the defendant. The claim shall be supported by an affidavit specifying the time expended, services rendered, and expenses incurred while the case was pending before the United States commissioner or court, and the compensation and reimbursement applied for or received in the same case from any other source. The court shall, in each instance, fix the compensation and reimbursement to be paid to the organization. "(e) The United States commissioner or the court, after appropriate inquiry, may authorize the appointed counsel or counsel made available by a local defender organization to obtain investigative, expert, or other services necessary to an adequate defense to each defendant determined by the United States commissioner or the court to be financially unable to obtain them. The court which authorized the services, or the district court in any case in which the United States commissioner authorized them, shall direct the payment of reasonable compensation to the person who rendered the services. A claim for compensation shall be sup- CRIMINAL JUSTICE ACT 17 ported by an affidavit specifying the time expended, services rendered, and expenses incurred on behalf of the defendant, and the compensation received in the same case from any other source. "(f) Whenever the court is satisfied that funds are available for payment from or on behalf of a defendant, the court may authorize or direct that such funds be paid to appointed counsel or to any person authorized pursuant to subsection (e) to assist in the representation. Except as so authorized or directed, no such person may request or accept any payment or promise of payment for assisting in the representation of a defendant. "(g) Each district court and judicial council of a circuit shall submit a report on the appointment of counsel within its jurisdiction to the Director of the Admin- istrative Office of the United States Courts in such form and at such times as the Judicial Conference of the United States may specify. "(h) There are authorized to be appropriated to the United States courts, out of any money in the Treasury not otherwise appropriated, sums necessary to carry out the provisions of this section. When so specified in appropriation Acts, such appropriations shall remain available until expended. Payments from such appropriations shall be made under the supervision of the Director of the Admin- istrative Office of the United States Courts. "(i) The term 'district court' as used in this section includes the District Court of the Virgin Islands, the District Court of Guam, and the district courts of the United States created by chapter 5 of title 28, United States Code." (b) The table of sections at the head of chapter 201 of title 18 of the United States Code is amended by adding immediately after item 3006 the following: "3006A. Adequate representation of defendants." SEc. 3. Each district court and court of appeals shall commence the compensation of appointed counsel within six months from the date of enactment of this Act.

[H.R. 6235, 88th Cong., 1st sess.] A BILL To amend title 18 of the United States Code so as to allow compensation to counsel assigned by the court in criminal cases Be it enacted by the Senate and House of Representatives of the United States of America in Congress asssembled, That chapter 201 of title 18 of the United States Code is amended by adding at the end thereof the following new sectibn: "§ 3013. Compensation for assigned counsel "Counsel assigned by the court in any criminal case shall be entitled to reasonable compensation, in an amount to be determined by the court. Such compensation shall be paid, upon order of the court, out of such funds as may be provided by law." SEc. 2. The analysis of chapter 201 of title 18 of the United States Code is amended by adding at the end thereof the following: "3013. Compensation for assigned counsel." SEc. 3. No compensation shall be paid pursuant to this Act for services performed before the date of its enactment.

[H.R. 6250,88th Cong., 1st sess.] A BILL To provide legal assistance for indigent defendants incriminal cases in United States Courts Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Indigent De- fendants Act of 1963". SEc. 2. (a) Title 18 of the United States Code is amended by adding immediately after section 3006 the following new section: "§ 3006A. Representation of indigent defendants "(a) In every criminal case arising under laws of the United States in which the defendant appears without counsel, the United States commissioner or the court shall advise the defendant that he has the right to be represented by counsel and that counsel will be appointed or assigned to represent him if he is financially unable to obtain counsel. Unless the defendant waives the appointment or assign- CRIMINAL JUSTICE ACT ment of counsel, the United States commissioner or the court, if satisfied after appropriate inquiry that the defendant is financially unable to obtain counsel, shall appoint counsel to represent him, or in the alternative, shall assign a counsel who is made available by a bar association, legal aid society, or other local defender organization. The United States commissioner or the court shall appoint or assign separate counsel for defendants who have such conflicting interests that they cannot properly be represented by the same counsel, or when other good cause is shown. "(b) A defendant for whom counsel is appointed or assigned under this section shall be represented at every stage of the proceedings from his initial appearance before the United States commissioner or court, or from any subsequent stage at which counsel is appointed or assigned, through appeal. If at any time after the appointment or assignment of counsel the court having jurisdiction of the case is satisfied that the defendant is financially able to obtain counsel or to make partial payment for the representation, he may terminate the appointment or assignment of counsel or authorize payment as provided in subsection (e), as the interest of justice may dictate. The United States commissioner or the court may, in the interests of justice, substitute one appointed or assigned counsel for another at any stage of the proceedings. "(c) An attorney appointed or an organization which made an attorney available for assignment pursuant to this section shall at the conclusion of the representation or any segment thereof be compensated at a rate not exceeding $15 per hour for time expended in court and $10 per hour for time reasonably expended outside of court, and shall be reimbursed for expenses reasonably incurred. A separate claim for compensation and reimbursement shall be made to the district court for representation before the United States commissioner or that court, and to each appellate court before which the attorney represented the defendant. Each claim shall be supported by an affidavit specifying the time expended, services rendered, and expenses incurred while the case was pending before the United States commissioner or court, and the compensation and reimbursement applied for or received in the same case from any other source. The court shall, in each instance, fix the compensation and reimbursement to be paid to the attorney or to the organization. "(d) The United States commissioner or the court, after appropriate inquiry, may authorize the appointed or assigned counsel to obtain investigative, expert, or other services necessary to an adequate defense to each defendant determined by the United States commissioner or the court to be financially unable to obtain them. The court which authorized the services, or the district court in any case in which the United States commissioner authorized them, shall direct the payment of reasonable compensation to the person who rendered the services. A claim for compensation shall be supported by an affidavit specifying the time expended, services rendered, and expenses incurred on behalf of the defendant, and the compensation received in the same case from any other source. "(e) Whenever the court is satisfied that funds are available for payment from or on behalf of a defendant, the court may authorize or direct that such funds be paid to appointed counsel, to an organization which made an attorney available for assignment, or to any person authorized pursuant to subsection (d) to assist in the representation. Except as so authorized or directed, no such person or organization may request or accept any payment or promise of payment for assisting in the representation of a defendant. "(f) Each district court and judicial council of a circuit shall submit a report on the appointment or assignment of counsel within its jurisdiction to the Director of the Administrative Office of the United States Courts in such form and at such time as the Judicial Conference of the United States may specify. "(g) There are authorized to be appropriated to the United States courts, out of any money in the Treasury not otherwise appropriated, sums necessary to carry out the provisions of this section. When so specified in appropriation Acts, such appropriations shall remain available until expended. Payments for such appropriations shall be made under the supervision of the Director of the Adminis- trative Office of the United States Courts. "(h) The term 'district court' as used in this section includes the District Court of the Virgin Islands, the District Court of Guam, and the district courts of the United States created by chapter 5 of title 28, United States Code." (b) The table of sections at the head of chapter 201 of title 18 of the United States Code is amended by adding immediately after item 3006 the following: "3006A. Representation of indigent defendants." SEC. 3. Each district court and court of appeals shall commence compensation for appointed or assigned counsel within six months from the date of enactment of this Act. CRIMINAL JUSTICE ACT 19

[E.R. 6499, 88th Cong., 1st seas.]

A BILL To promote the cause of criminal justice by providing for the representation of defendants who are financially unable to obtain an adequate defense in criminal cases in the courts of the United States Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Criminal Justice Act of 1963". SEC. 2. Title 18 of the United States Code is amended by adding immediately after section 3006 the following new section: "§ 3006A. Adequate representation of defendants "(a) CHOICE OF PLAN.-Each United States district court, with the approval of the judicial council of the circuit, shall place in operation throughout the district a plan designed to effectuate the provisions of this section for furnishing representation for defendants charged with felonies or misdemeanors, other than petty offenses as defined in section 1 of this title, who are financially unable to obtain an adequate defense. Representation under each plan shall include counsel and such investigative, expert, and other services necessary to an adequate defense. The provision for counsel under each plan shall conform to one of the following: "(1) Representation by private attorneys; "(2) Representation by a full-time or part-time Federal public defender and assistants; "(3) Representation by attorneys furnished by a bar association, or a legal aid society or other local defender organization; or "(4) Representation according to a plan containing any combination of the foregoing. Prior to approving the plan for a district, the judicial council of the circuit shall supplement the plan with provisions for the representation on appeal of defendants financially unable to obtain representation. Consistent with the provisions of this section, the district court may modify a plan at any time with the approval of the judicial council of the circuit; it shall modify the plan when directed by the judicial council of the circuit. The district court shall notify the Director of the Administrative Office of the United States Courts of modifications in its plan. "(b) APPOINTMENT OF COUNSEL-In every criminal case in which the defendant appears without counsel, the United States commissioner or the court shall advise the defendant that he has the right to be represented by counsel and that counsel will be appointed to represent him if he is financially unable to obtain counsel. Unless the defendant wavies the appointment of counsel, the United States commissioner or the court, if satisfied after appropriate inquiry that the defendant is financially unable to obtain counsel, shall appoint counsel to represent him. The United States commissioner or the court shall appoint separate counsel for defendants who have such conflicting interests that they cannot properly be represented by the same counsel, or when good cause is otherwise shown. "(c) DURATION AND SUBSTITUTION OF APPOINTMENTs.-A defendant for whom counsel is appointed shall be represented at every stage of the proceedings from his initial appearance before the United States commissioner or court, or from any subsequent stage at which counsel is appointed, through appeal. If at any time after the appointment of counsel the court having jurisdiction of the case is satisfied that the defendant is financially able to obtain counsel or to make partial payment for the representation, he may terminate the appointment of counsel or authorize payment as provided in subsection (h), as the interests of justice may dictate. The United States commissioner or the court may, in the interest of justice, substitute one appointed counsel for another at any stage of the proceedings. "(d) SERVICES OTHER THAN COUNSEL.-The plan for each district shall contain provisions for furnishing investigative, expert, or other services necessary to an adequate defense to each defendant determined by the United States commissioner or the court after appropriate inquiry to be financially unable to obtain them. The plan shall set forth the circumstances under which specific authorization will be required for a defendant to obtain particular services. Any plan may provide for services to be furnished by salaried staff personnel or by personnel retained specially in each case, or by a combination of such means. Except where services are rendered by salaried staff personnel, the court which authorized them, or the district court in any case in which the United States commissioner authorized them, shall direct the payment of reasonable compensation to the person who rendered them. A claim for compensation shall be supported by an affidavit specifying the time expended, services rendered, and expenses incurred on behalf of the defendant, and the compensation received in the same case from any other source. CRIMINAL JUSTICE ACT

"(e) PRIVATE ATTORNEYS.-A private attorney appointed pursuant to this section shall at the conclusion of the representation or any segment thereof be compensated at a rate not exceeding $15 per hour for time reasonably expended and be reimbursed for expenses reasonably incurred. A separate claim for compensation and reimbursement shall be made to the district court for representation before the United States commissioner or that court, and to each appellate court before which the attorney represented the defendant. Each claim shall be supported by an affidavit specifying the time expended, services rendered, and expenses incurred while the case was pending before the United States commissioner or court, and the compensation and reimbursement applied for or received in the same case from any other source. The court shall, in each instance, fix the compensation and reimbursement to be paid to the attorney. "(f) FEDERAL PUBLIC DEFENDERS.-A Federal public defender who is to serve in any district pursuant to this section shall be appointed by the judicial council of the circuit after receiving recommendations from the district court. Such appointment, whether on a full-time or part-time basis, shall be for a term of four years unless sooner terminated by the judicial council of the circuit for incompetency, misconduct, or neglect of duty. The salary of a full-time Federal public defender shall not exceed that of the United States attorney in the same district; the salary of a part-time Federal public defender shall be adjusted accordingly. The Federal public defender may employ assistant Federal public defenders at salaries not to exceed the highest salary authorized to be paid to an assistant United States attorney in the same district, and part-time assistants at salaries adjusted accordingly. The Federal public defender may also employ full-time or part-time investigative, expert, clerical, and other personnel necessary to the efficient performance of the duties of his office. "(g) LOCAL DEFENDERS.-A bar association, or legal aid society or other local defender organization which furnishes attorneys pursuant to this section shall at the conclusion of each representation or any segment thereof be compensated at a rate not exceeding $15 per hour for time reasonably expended by its attorneys and be reimbursed for expenses reasonably incurred. A separate claim for compensation and reimbursement shall be made to the district court for representation before the United States commissioner or that court, and to each appellate court before which the organization's attorneys represented the defendant. The claim shall be supported by an affidavit specifying the time expended, services rendered, and expenses incurred while the case was pending before the United States commissioner or court, and the compensation and reimbursement applied for or received in the same case from any other source. The court shall, in each instance, fix the compensation and reimbursement to be paid to the organization. "(h) RECEIPT OF OTHER PAYMENTs.-Whenever the court is satisfied that money is available for payment from or on behalf of a defendant, he may authorize or direct that it be paid to appointed counsel or to any person authorized pursuant to subsection (d) to assist in the representation, or to the court for deposit in the United States Treasury as a reimbursement to the appropriation, current at the time of payment, to carry out the provisions of this section. Except as so authorized or directed, no such person may request or accept any payment or promise of payment for assisting in the representation of a defendant. "(i) PENALTIE.-False affidavits filed pursuant to subsections (d), (e), or (g), and false statements made by defendants in the course of inquiries conducted under subsections (b) or (d) for the purpose of securing counsel or services, shall subject the persons making such affidavits or statements to the penalties prescribed by law. "(j) REPORTs.-Each district court and judicial council of a circuit shall submit a report on the operation of the plan within its jurisdiction to the Director of the Administrative Office of the United States Courts in such form and at such times as the Judicial Conference of the United States may specify. "(k) APPROPRIATION.-There are authorized to be appropriated to the United States courts, out of any money in the Treasury not otherwise appropriated, sums necessary to carry out the provisions of this section. When so specified in appropriation Acts, such appropriations shall remain available until expended. Payments from such appropriations shall be made under the supervision of the Director of the Administrative Office of the United States Colirts. "(1) DISTRICTS INCLUDED.-The term 'district court' as used. in this section includes the District Court of the Virgin Islands, the District Court of Guam, and the district courts of the United States created by chapter 5 of title 28, United States Code." CRIMINAL JUSTICE ACT

SEc. 3. The analysis of chapter 201 of title 18, United States Code, is amended by adding immediately after section 3006 the following new item: "3006A. Adequate representation of defendants." SEc. 4. Each district court shall within six months from the date of this enactment submit to the judicial council of the circuit a plan formulated in accordance with section 2. Each judicial council shall within nine months from the date of this enactment approve and transmit to the Administrative Office of the United States Courts a plan for each district in its circuit. Each district court and court of appeals shall place its approved plan in operation within one year from the date of this enactment.

[H.R. 6765, 88th Cong., Ist sess.] A BILL To provide legal assistance for indigent defendants in criminal cases in United States courts Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Indigent Defendants Act of 1963". SEC. 2. (a) Title 18 of the United States Code is amended by adding immediately after section 3006 the following new section: "§ 3006A. Representation of indigent defendants "(a) In every criminal case arising under laws of the United States in which the defendant appears without counsel, the United States commissioner or the court shall advise the defendant that he has the right to be represented by counsel and that counsel will be appointed or assigned to represent him if he is financially unable to obtain counsel. Unless the defendant waives the appointment or assignment of counsel, the United States commissioner or the court, if satisfied after appropriate inquiry that the defendant is financially unable to obtain counsel, shall appoint counsel to represent him or, in the alternative, shall assign a counsel who is made available by a bar association, legal aid society, or other local defender organization which is established only for the purpose of legally representing indigent persons accused of a crime. The United States commissioner or the court shall appoint or assign separate counsel for defendants who have such conflicting interests that they cannot properly be represented by the same counsel, or when other good cause is shown. Counsel appointed or assigned by the United States commissioner shall be selected on a rotational basis from a panel of counsel designated or approved by the chief judge of each United States district court. "(b) A defendant for whom counsel is appointed or assigned under this section shall be represented at every stage of the proceedings from his initial appearance before the United States commissioner or court, or from any subsequent stage at which counsel is appointed or assigned, through appeal. If at any time after the appointment or assignment of counsel the court having jurisdiction of the case is satisfied that the defendant is financially able to obtain counsel or to make partial payment for the representation, he may terminate the appointment or assignment of counsel or authorize payment as provided in subsection (e), as the interest of justice may dictate. The United States commissioner or the court may, in the interests of justice, substitute one appointed or assigned counsel for another at any stage of the proceedings. Counsel substituted by the United States commissioner shall be selected on the same basis as counsel originally appointed or assigned. "(c) An attorney appointed or an organization which made an attorney available for assignment pursuant to this section shall at the conclusion of the representation of any segment thereof be compensated at a rate not exceeding $15 per hour for time expended in court and $10 per hour for time reasonably expended outside of court or before a United States commissioner, and shall be reimbursed for expenses reasonably incurred. A separate claim for compensation and reimbursement shall be made to the district court for representation before the United States commissioner or that court, and to each appellate court before x;which the attorney represented the defendant. Each claim shall be supported by an affidavit specifying the time expended, services rendered, and expenses incurred while the case was pending before the United States commissioner or court, and the compensation and reimbursement applied for or received in the same case from any other source. The court shall, in each instance, fix the compensation and reimbursement to be paid to the attorney or to the organization. "(d) The court, after appropriate inquiry, may authorize the appointed or assigned counsel to obtain investigative, expert, or other services necessary to an 22 CRIMINAL JUSTICE ACT adequate defense to each defendant determined by the court to be financially unable to obtain them. The court which authorized the services shall direct the payment of reasonable compensation to the person who rendered the services. A claim for compensation shall be supported by an affidavit specifying the time expended, services rendered, and expenses incurred on behalf of the defendant, and the compensation received in the same case from any other source. "(e) Whenever the court is satisfied that funds are available for payment from or on behalf of a defendant, the court may authorize or direct that such funds be paid to appointed counsel, to an organization which made an attorney available for assignment, or to any person authorized pursuant to subsection (d) to assist in the representation. Except as so authorized or directed, no such person or organization may request or accept any payment or promise of payment for assisting in the representation of a defendant. "(f) Each district court and judicial council of a circuit shall submit a report on the appointment or assignment of counsel within its jurisdiction to the Director of the Administrative Office of the United States Courts in such form and at such time as the Judicial Conference of the United States may specifiy. "(g) There are authorized to be appropriated to the United States courts, out of any money in the Treasury not otherwise appropriated, sums necessary to carry out the provisions of this section. When so specified in appropriation Acts, such appropriations shall remain available until expended. Payments for such appropriations shall be made under the supervision of the Director of the Adminis- trative Office of the United States Courts. "(h) The term 'district court' as used in this section includes the District Court of the Virgin Islands, the District Court of Guam, and the district courts of the United States created by chapter 5 of title 28, United States Code." (b) The table of sections at the head of chapter 201 of title 18 of the United States Code is amended by adding immediately after item 3006 the following: "3006A. Representation of indigent defendants." SEc. 3. Each district court and court of appeals shall commence compensation for appointed or assigned counsel within six months from the date of enactment of this Act.

if.R. 7457, 88th Cong., 1st sess.] A BILL To provide legal assistance for indigent defendants in criminal cases in United States courts Be it enacted by the Senate and House of Representatives of the United States of America in Conaress assembled, That this Act may be cited as the "Indigent Defendants Act of 1963". SEc. 2. (a) Title 18 of the United States Code is amended by adding immediately after section 3006 the following new section: "§ 3006A. Representation of indigent defendants "(a) In every criminal case arising under laws of the United States in which the defendant appears without counsel, the United States commissioner or the court shall advise the defendant that he has the right to be represented by counsel and that counsel will be appointed or assigned to represent him if he is financially unable to obtain counsel. Unless the defendant waives the appointment or assignment of counsel, the United States commissioner or the court, if satisfied after appropriate inquiry that the defendant is financially unable to obtain counsel, shall appoint counsel to represent him or, in the alternative, shall assign a counsel who is made available by a bar association or legal aid society. The United States commissioner or the court shall appoint or assign separate cou-nsel for defendants who have such conflicting interests that they cannot properly be represented by the same counsel, or when other good cause is shown. Counsel appointed or assigned by the United States commissioner or the court shall be selected on a rotational basis from a panel of counsel designated or approved by the judge of each United States district court. "(b) A defendant for whom counsel is appointed or assigned under this section shall be represented at every stage of the proceedings from his initial appearance before the United States commissioner or court, or from any subsequent stage at which counsel is appointed or assigned, through appeal. If at any time after the appointment or assignment of counsel the court having jurisdiction of the case is satisfied that the defendant is financially able to obtain counsel or to make partial payment for the representation, he may terminate the appointment or assignment of counsel or authorize payment as provided in subsection (e), as CRIMINAL JUSTICE ACT the interest of justice may dictate. The United States commissioner or the court may, in the interests of justice, substitute one appointed or assigned counsel for another at any stage of the proceedings. Counsel substituted by the United States commissioner or the court shall be selected on the same basis as counsel originally appointed or assigned. "(c) An attorney appointed or an organization which made an attorney available for assignment pursuant to this section shall at the conclusion of the representation of any segment thereof be compensated at a rate not exceeding $15 per hour for time expended in court and $10 per hour for time reasonably expended outside of court or before a United States commissioner, and shall be reimbursed for expenses reasonably incurred. A separate claim for compensation and reimbursement shall be made to the district court for representation before the United States commissioner or that court, and to each appellate court before which the attorney represented the defendant. Each claim shall be supported by an affidavit specifying the time expended, services rendered, and expenses incurred while the case was pending before the United States commissioner or court, and the compensation and reimbursement applied for or received in the same case from any other source. The court shall, in each instance, fix the compensation and reimbursement to be paid to the attorney provided, however, that the total compensation to be paid to the attorney for such representation shall not exceed $500 in cases of a felony and $300 in case of a misdemeanor. "(d) The court, after appropriate inquiry, may authorize the appointed or assigned counsel to obtain investigative, expert, or other services necessary to an adequate defense to each defendant determined by the court to be financially unable to obtain them. The court which authorized the services shall direct the payment of reasonable compensation to the person who rendered the services. A claim for compensation shall be supported by an affidavit specifying the time expended, services rendred, and expenses incurred on behalf of the defendant, and the compensation received in the same case from any other source. "(e) Whenever the court is satisfied that funds axe available for payment from or on behalf of a defendant, the court may authorize or direct that such funds be paid to appointed counsel, to an organization which made an attorney available for assignment, or to any person authorized pursuant to subsection (d) to assist in the representation. Except as so authorized or directed, no such preson or organization may request or accept any payment or promise of payment for assisting in the representation of a defendant. "(f) Each district court and judicial council of a circuit shall submit a report on the appointment or assignment of counsel within its jurisdiction to the Director of the Administrative Office of the United States Courts in such form and at such time as the Judicial Conference of the United States may specify. "(g) There are authorized to be appropriated to the United States courts, out of any money in the Treasury not otherwise appropriated, sums necessary to carry out the provisions of this section. When so specified in appropriation Acts, such appropriations shall remain available until expended. Payments for such appropriations shall be made inder the supervision of the Director of the Admin- istrative Office of tbe United States Courts. "(h) The term 'district court' as used in this section includes the District Court of the Virgin Islands, the District Court of Guam, and the district courts of the United States created by chapter 5 of title 28, United States Code." (b) The table of sections at the head of chapter 201 of title 18 of the United States Code is amended by adding immediately after item 3006 the following: "3006A. Representation of indigent defendants." i.II L SEc. 3. Each district court and court of appeals shall commence compensation for appointed or assigned counsel within six months from the date of enactment of this Act. Mr. BATTIN. Mr. Chairman, members of the committee, I would like to introduce to you a good friend of mine and president of the Montana Bar Association, Mr. Gene Picotte, of Helena, Mont.

STATEMENT OF GENE A. PICOTTE, ESQ., PRESIDENT, MONTANA BAR ASSOCIATION Mr. Chairman, gentlemen of the committee, I am very grateful for the opportunity and very proud of the opportunity to appear here this morning on behalf of the Montana Bar Association. I have a CRIMINAL JUSTICE ACT written statement which I believe has been submitted to the committee and I would like to read it into the record, if I may. The purpose of this statement is to place before this honorable committee the official views of the Montana Bar Association concerning H.R. 1027, 11.R. 3446, H.R. 3504, H.R. 4156, H.R. 4461, H.R. 4816, H.R. 5330, H.R. 5545, and H.R. 5889; and I would like to add at this time Mr. Battin's bill, H.R. 6235 which was filed, I believe, on May 13 of this year. The Montana Bar Association is a voluntary association of Montana attorneys, having a membership of 566, comprising about 75 percent of the practicing attorneys in Montana. I am the current president of the association, and have served as a member of its executive board for a period of 4 years. I am a member of the law firm of Loble & Picotte, and am engaged in the private practice of law throughout the State of Montana, maintaining offices in the city of Helena. In this statement I shall not attempt to analyze the bills in question, but shall merely set forth generally the official views of the Montana Bar Association upon the matter of representation of indigent defendants in Federal criminal cases. We favor H.R. 3446, which simply provides that "counsel assigned by the court in any criminal case shall be entitled to reasonable compensation, in an amount to be determined by the court." As an alternative, we would favor H.R. 5889, with the reservation, however, that the fees provided herein are in our opinion wholly inadequate. Experience and formal studies show that an income of less than $25 per actual working hour is completely inconsistent with the realities of the present day economics of the practice of law. The present system of appointing attorneys to represent indigent clients in Federal court works very well for everyone except the unfortunate appointed attorney, and this is simply because he must serve without compensation. This is tremendously unjust in this day and age. This system originated in the old days, when the practice of law was a relatively leisurely and much less complex occupa- tion. In those days it may perhaps have been accounted a distinction and a privilege to serve without compensation in the great matter of upholding our system of justice and assuring fair treatment to indigent persons. But today, asking a busy lawyer, engaged in the fast-moving, infinitely complex operation known as the private practice of law, to assume the defense in these cases without compensation is tantamount to asking him for a donation of perhaps many thousands of dollars out of his own pocket. To cite just one example, the firm of Poore & Poore. of Butte, Mont., a few years ago defended a Communist accused under the Smith Act. Virtually the entire energies of this very busy law firm were consumed for a period of approximately 3 months in the preparation of the case for trial, the trial itself consumed 3 weeks, and approximately 3 months of effort were consumed by one member of the firm in the process of appeal. The effect upon the practice of the appointed attorney of such an experience is often monumental. His overhead, which is very high and constantly increasing, continues while he gives his services free. The business of his paying client languishes. He loses clients, and the effect upon his business is often permanent and substantial. No other servants of government that we know of are CRIMINAL JUSTICE ACT asked 'to make these sacrifices which are being made every day by these officers of our Federal courts. The 'Montana Bar Association is opposed to the creation of any institutionalized public defender system, and the reason for our opposition is twofold: 1. Any system whereunder the government is both prosecutor and defender is inherently inconsonant with the basic concepts of American criminal justice. This objection is fundamental, so far as we are concerned. I am sure that this objection has been or will be made and argued to the committee so many times in the course of its deliberations that there would be no profit in further discussing it in this statement. Mr. CELLER. May I ask at this point, You disagree, then, with the American Bar Association in that attitude? Mr. PICOTTE. Yes, sir, Mr. Chairman; we do. 2. Any institutionalized public defender system would result in unnecessary expense through the setting up of an unneeded government agency. There is, in our opinion, nothing wrong with the present system, except that the appointed attorney is not compensated. If the attorney is adequately compensated, then, in our view, there is no further problem. His compensation should be a fee commensurate with the fees paid for similar services rendered to private clients in the particular area involved. The fixing of fees can be left up to the local judge, who is familiar with local conditions. So far as the appointment of the attorney is concerned, that certainly should be left up to the local judge who invariably has a wide acquaintance with the attorneys of his area, and who can be best relied upon to select the proper attorney or attorneys to defend in a given case. Mr. CELLER. Of course, as you know, in this country we have many States that have some form of a public defender system. Mr. PICOTTE. I believe those are probably in the majority, Mr. Chairman; they are private legal aid societies. Mr. CELLER. Combination legal aid societies and actual public defenders appointed by the State or local government. Mr. PICOTTE. I am not aware that there are that many States having a public defender system. In addition to being compensated for his services-on a time basis, of course-the attorney should be allowed his reasonable expenses incurred in the investigation of the case and in preparing for trial. No other system could begin to match the efficiency and low cost of the one which we have suggested to your honorable committee. This entire system could be operated within existing governmental facilities and by existing governmental personnel. Furthermore, no other system could go so far toward protecting the rights of the accused. Independent, competent counsel would be assured, subject only to any limitations upon the honesty or impartiality of the judge, a factor which we think may be discounted for all practical purposes. In summary, it is respectfully submitted to your honorable committee that the only thing really necessary to be done is to compensate adequately the appointed attorney. This is a matter of extreme necessity. Otherwise, we fail to see how the existing system could be improved upon. Mr. CELLER. Mr. McCulloch? CRIMINAL JUSTICE ACT

Mr. MCCULLOCH. Mr. Picotte, just a few days ago-to be exact, on May 13, Representative Poff, of Virginia, introduced a bill on the general subject which we are discussing this morning and that is H.R. 6250. Have you had an opportunity to see that bill yet? Mr. PICOTTE. No, I haven't, Mr. McCulloch. Mr. MCCULLOCH. There appears to be considerable merit in at least certain provisions of this bill and I would be very happy if you would get a copy of the bill and study it. I would like also to ask you if you have a system in Montana for the representation of indigent defendants at the present time. Mr. PICOTTE. No, sir, we do not. That is, as far as any voluntary organizations are concerned, we don't. Now, in our State courts the attorney is simply appointed by the judge; that is, by the district judge or trial judge, and he represents the defendant, and when the matter is finished he submits a voucher for his services to the court which is in turn submitted to the board of county commissioners and the court fixes the fee and the attorney is paid by the county. Mr. MCCULLOCH. That system is provided by State law? Mr. PICOTTE. Yes. Mr. MCCULLOCH. Are you in a position to evaluate that system for the committee very briefly this morning? Mr. PICOTTE. It works very well. For example, I had a rather recent experience with it. My firm, which is a three-man law firm, and another two-man law firm were appointed together to defend a very serious first-degree murder case. My firm and this other firm both specialize in trial work and I think that this defendant, in the case I referred to, was very well represented. We did weeks of work and I think a total fee of $600 was paid by the county in that case. Now, as far as our State courts are concerned, and I want to make a distinction here-the system to which I refer, which is the same one that our association is advocating here-has one fault in State court which is that the attorney doesn't get adequately compensated in any case that I know of. The fees fixed by the courts are very niggardly. But the reason for that is, we have an elected judiciary and the district judges receive a lot of pressure and a lot of heat from the county commissioners if they fix fees too high I don't see how we would have that problem under the Federal judiciary. Mr. RODINO. Mr. Chairman. Mr. CELLER. Mr. Rodino. Mr. RODINO. Mr. Picotte, do you feel that the present system without a system of public defenders adequately implements the mandate of the sixth amendment to the Constitution? Mr. PICOTTE. No, sir, I do not. But I believe that the only basic reason for that is, that the attorneys in the Federal courts are not compensated at all, and since lawyers are human like anyone else, I believe that this tends to lower the quality of the representation. Otherwise I see nothing wrong with the present system. Mr. RODINO. How about the fact that, as I understand it tech- nically, assigned counsel is only assigned after the arraignment. What do you do with the defendant prior to that-the investigative process- all the work that is required in order to properly give justice to a defendant? CRIMVINAL JUSTICE ACT 27

Mr. PICOTTE. Well, I wasn't- Mr. RODINO. There is no provision for this under your proposal. Mr. PICOTTE. I don't see why, under the present system that the attorney can't be appointed before arraignment, Mr. Rodino. Mr. R ODINO. Well, he is not and this is why we are talking about setting up this system. Let me ask you this, Mr. Picotte. Does the Montana system provide for the assignment of attorneys before arraignment? Mr. PICOTTF. Oh, yes, yes. I should say so. Mr. RODINO. In the preliminary hearing? Mr. PICOTTF. Yes. When he is first brought into court. Nor- mally, in Montana, we don't have a preliminary hearing. That is a very unusual thing in Montana. But when the defendant is brought before the trial court and asked-at the time that he would ordinarily enter a plea, he is asked if he has counsel and if he says "No," he is asked whether he can afford counsel, and if he says "No," he is asked if the court-if he wants the court to assign or appoint counsel for him, and he just says "Yes" or "No," or the court may say, "I am going to appoint counsel for you anyway," and he says, "Mr. Sheriff, take this man back over to the jail and keep him there and we will have the arraignment later on after he has had a chance to confer with counsel." Mr. RODINO. After arrest can he get counsel then? Mr. PICOTTE. Yes. Maybe I misunderstood the question. Mr. CFLLER. Mr. Picotte, do you think in certain parts of this country where there are strained racial relations, that under your arrangement or your suggestion of assigned counsel, the accused would be adequately represented in the sense that the judges would very carefully select those who ought to represent the indigent defendant? Mr. PICOTTE. I think as far as our Federal courts are concerned- yes, I do, Mr. Chairman. I think what you say is generally true. But so far as race relations cases are concerned, I think that the history of the thing will bear me out when I say that the Federal judiciary has given no indication of the kind of prejudice that your question might suggest. Mr. CELLER. I do not make any charges against the Federal judiciary, and I use the word advisedly-consciously or unconsciously- there is an absorption of the feeling in the community, prejudice or otherwise. They cannot help it. That would be obviated if the Federal Government had its appointee there who would be objective- more objective, possibly. Mr. PICOTTE. Well, I can't agree with what your question suggests, Mr. Chairman, because I have more faith in our Federal judiciary than that. Your question also brings something else to my mind, Mr. Chairman, which p'rhaps you-perhaps I should have elaborated on in my written statement, and that is, the inherent dangers that are involved in having the U.S. Government be both prosecutor and defender. And I found in the record of a hearing-I believe this same subcommittee, May 6 and 14, 1959. In the testimony of one Judge Dimock, U.S. District Court, Southern District of New York, he quotes from a statement of the then Assistant Attorney General of the CRIMINAL JUSTICE ACT

United States, testifying before this committee in 1955 where the Assistant Attorney General said, and I quote: In sum, the public defender system would promote public justice, not defeat it. It would be his duty to protect the innocent but not acquit the guilty. It would be his duty to see that the guilty were punished, but not punished beyond their merit. Judge Dimock said that this made his blood run cold. It does mine, too. This is the first time and first connection that I ever heard it suggested that it was not the duty of a lawyer to acquit his client or that it was the duty of the lawyer to see that his own client was punished, and I am afraid that eventually there would become an identity of interests to a very dangerous degree between prosecution and defense if we put the Government directly into the defense business, which is what the public defender system would do. Mr. CELLER. I have great respect for Judge Dimock's opinion. He comes from my bailiwick-the southern district of New York; but, the other side of the coin is that the Judicial Conference of the United States presided over by the Chief Justice of the Supreme Court with the circuit judges and district judges in the entire country disagree with Judge Dimock. Mr. PICOTTE. Yes, and as I remember it, Judge Dimock was on that council and was the sole dissenting member, and I must say that the vast majority of the lawyers in Montana are in agreement with Judge Dimock. Mr. ROGERS. Mr. Chairman. Mr. CELLER. Mr. Rogers. Mr. ROGERS. As I understand, under the Montana system, that if an arrest is made, the man has had an opportunity to make bond and he is taken beforeYes. a charging magistrate of some kind, is he not? Mr. PICOTTE. Mr. ROGERS. The question is, supposing before he went before that magistrate, would he have an opportunity to have counsel assigned to him? Suppose that the sheriff went out and picked him up for murder or robbery and took him before what we usually know as a justice of the peace and they set his bond. Now, suppose that he demanded of the sheriff, "I need a lawyer now," and the sheriff-is the sheriff authorized to get him a lawyer when he cannot pay for it. Is the sheriff authorized to get him a lawyer when he cannot pay for it? Mr. PICOTTE. No. Mr. ROGERS. Then when, in Montana, would he first be able to say, "I want a lawyer. I need him. I have no money to pay for him." Then when does he get the lawyer assigned to him? Mr. PICOTTE. When he is first brought before the district judge for the purpose of entering a plea. Mr. ROGERS. He then is not given an opportunity to have counsel at the time his bond may be set, is that right? Mr. PICOTTE. Not unless he exercises his right to call an attorney. Mr. ROGERS. Do you have a system where, when a warrant is issued, the sheriff picks him up and takes him before a justice of the peace, as an example, who sets the bond, or must he be taken directly to the district court and the bond set there? Mr. PICOTTE. Normally, an information is filed by the county attorney directly with the district court and he does not go to the justice of the peace. Now, if he is picked up by the sheriff for an CRIMINAL JUSTICE ACT

arrest after an overt or suspicious act or something like that, he normally would be taken to the justice of the peace where he doesn't enter a plea, but the justice of the peace simply fixes a bond and he goes to jail until the county attorney gets the information filed. Then he goes to the district court. Then he has an opportunity to have counsel. Mr. CELLER. We have the Attorney General here. I understand he has to testify before the Senate Committee at 11 o'clock. We are very grateful for your testimony, Mr. Picotte. Mr. McCULLOCH. If he should wish to testify further in the matter, I think we should give him that opportunity. He comes from as far away as Montana. I asked only one or two questions because I knew the Attorney General was in the audience. I hope that we can give him that opportunity. Mr. CRAMER. If I might make a suggestion. If he is not in a hurry, I would like to ask him a question. Mr. CELLER. If that is agreeable, you might wait a minute. Mlr. PICOTTE. Thank you very much, gentlemen. Mr. CELLER. We wish to announce the presence of the Attorney General, Robert F. Kennedy. Mr. Attorney General, you are always welcome before this committee. You may proceed.

STATEMENT OF HON. ROBERT F. KENNEDY, ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA

Attorney General KENNEDY. Mr. Chairman, I appreciate the courtesy of the committee. I appreciate the courtesy of the Bar Associa- tion of the State of Montana for permitting me to interrupt its testimony. I appear before this subcommittee today in support of H.R. 4816. This bill is known as the Criminal Justice Act, is designed to make our ideal of "equal justice under law" a reality. It seeks to do this by assuring that competent legal representation will be available in Federal courts for every accused person whose lack of funds prevents him from providing for his own defense. In terms of both equality and justice this measure is long overdue. I would like to ask the chairman for permission to put my whole statement in the record and perhaps just read excerpts from it. Mr. CELLER. You have that permission. Attorney General KENNEDY. In April 1961 shortly after taking office, I appointed the Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice. After nearly 2 years of study, the Committee concluded that our Federal courts are seriously handicapped in administering criminal justice when defendants without funds are involved. But it also found that no legislation previously proposed or supported by the Department of Justice seemed to take full account of the defects in our system. The Committee, therefore, drafted a new bill designed to cure these defects and accommodate differences of opinion regarding remedies. After incorporating further suggestions from Federal judges and leaders of the bar, we gave the proposed Criminal Justice Act the

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highest priority in the legislative program of the Department of Justice. The bill was transmitted to the Congress by the President as "a iant stride forward on removing the factor of financial resources rom the balance of justice." It has been introduced by your chairman, whose long and devoted efforts for legislation of this character are unsurpassed,identical bills. and Congress- men Toll and Kastenmeier have introduced The legislation has been most favorably received by my predecessor, former Attorney General William P. Rogers, by the Chief Justice of the United States, and by the American Bar Association. I believe you will find the Criminal Justice Act significantly irn- proves upon many features which met with legislative opposition or apathy in the past. It abandons the emphasis on public defenders. It avoids the influence of politics in appointments. It recognizes the necessity of investigators and experts to an adequate defense. It establishes a framework in which compensated assignments can be fairly distributed. It carefully limits its benefits to those who demonstrate financial inability to secure justice. And it provides safeguards against abuse. The need for this legislation is beyond controversy. Federal courts today continue to delegate the defense of the underprivileged to assigned counsel who are not paid for their services. They are not reimbursed for their out-of-pocket costs. They do not receive a shred of investigative or expert help. They are not appointed until long after arrest when witnesses have disappeared and leads grown stale. They often lack the trial experience essential for a competent defense. These shortcomings are not mere technicalities. We all know the profound effect they can have on the outcome of a criminal case. No one in this room would be content with that kind of representation if charged with a serious crime. The dimensions of this problem are remarkably great. Ahnost 10,000 defendants charged with Federal crimes-more than 30 percent of the total-receive court-appointed counsel each year. Appraising the quality of their defense, a nationwide survey by the Harvard Law Review recently concluded that whether the impoverished accused "under present conditions receives excellent or mediocre representation is largely fortuitous." The Allen committee, in a study of selected Federal districts, found that the prevailing system sometimes induces guilty pleas; appointed attorneys realize the futility of going to trial in the absence of resources to litigate effectively. These disadvantages are particularly disturbing considering the substantial number of persons who are charged with crimes but who are not guilty. Over 4,000 Federal criminal cases are dismissed each year. Of the more than 4,500 additional defendants who elect to go to trial, 1,400 or nearly 30 percent are acquitted. As lawyers, you know that the success of these defenses depends on the effort and skill of counsel. Any time an accused's poverty deprives CRIMINAL JUSTICE ACT him of timely and competent representation, there is danger that our system of justice may convict an innocent man. For many years this subcommittee has seen bills which would have required Congress to choose between setting up public defender systems in the Federal courts or providing compensation for assigned counsel. Proponents of each method opposed the other. The Criminal Justice Act eliminates this dispute. It delegates to the judiciary in each district and circuit the responsibility to set up a system of adequate representation in accordance with local needs and preferences. The available alternatives are flexible and wide. The first option is to appoint counsel from the private bar. This has been our traditional solution. It has the great advantage of spreading the defense of criminal cases broadly among the bar, fostering wide participation and interest in the administration of criminal justice. The second option, establishment of Federal public defenders, has long been advocated. A public defender office can provide the skill, experience, and availability so essential to an adequate and timely defense. The Criminal Justice Act would authorize the creation of such an office, with the necessary assistants and staff. It would permit salaries equivalent to those which the U.S. attorney and his assistants receive in the same district. It would allow part-time defenders in districts that do not require full-time public defender offices. The method of appointing the Federal public defender has long been a troublesome point. Presidential selection has been opposed because of patronage or on the grounds that the prosecutor and the defender should not be controlled by a single authority. Likewise, Senate confirmation of appointees has been opposed as introducing political considerations which would have no place in the system. Appointment by district judges has been opposed because it might inhibit the public defender to avoid conflict with the judge who controls his reappointment. The Criminal Justice Act avoids these dangers. It places the appointing power in the judicial council of each circuit. After receiving recommendations from the district court and the local bar, these appellate judges will determine who the public defender will be. In this way the Federal public defender can maintain his independence from the executive branch, the influence of politics, and the trail court. The third option provides for participation by bar associations or selection of local legal aid or defender organizations to furnish attorneys for court appointment. This provision recognizes the valuable role which such organizations have played in various parts of our country. The Criminal Justice Act leaves open the possibility that State and local defender organizations, public and private, may be designated to participate in this vital area of Federal justice. The decision would be up to the judges. Finally, the Criminal Justice Act for the first time would authorize each district to adopt a system containing any combination of the first three options. The Allen committee considered a hybrid system to be a highly desirable choice for a large metropolitan district. 32 CRIAINAL JUSTICE ACT

Providing for experienced, paid counsel is fundamental. But the phrase "adequate defense" means more than counsel. Equally important to a defense are expert factfinding services. For example, an innocent man may be unable to hire an investigator to find the witnesses and evidence indispensable to his acquittal. Counsel may be unable to retain a handwriting expert to show that a forgery was not committed by his client. The importance of skilled investigation is underscored in police work every.day. The prosecuting attorney cannot function without the facts. The same is true of the defense. Basic to the Criminal Justice Act is its requirement that a system of adequate representation be set forth in a plan for each Federal district. Within the framework set out in the bill, every district is free, in consultation with its judicial council, to devise the plan best suited to local needs. The choice of how to do it is wide, but there is no option to do nothing. We cannot permit inadequate representation to continue in any Federal court. The plan will inform judges, lawyers, and the community of the manner in which counsel and factfinding services will be provided to qualified defendants. It can provide different procedures for preliminary hearings, trials, and appeals. It will specify whether the appointment of counsel in hearings before a U.S. Commissioner will be made by the Commissioner or the district judge. It will determine whether inquiry to screen unqualified defendants will be made by hearing, affidavit, or interview by a panel of private lawyers. It may establish fee limitations for different offenses or for representation at different stages. It will specify whether day-to-day administration of the plan will be by the court or by an independent board of trustees-like that used with great success by the District of Columbia. It may establish a certified list of qualified attorneys and a rotation system for their appointment. The plans formulated under this bill will enable Congress to see how the statute is being interpreted. They will provide a basis for checking costs, determining appropriations and guarding against waste. Plans which prove successful may become prototypes for adoption elsewhere, not only in the Federal courts, but perhaps in those of the States. Experience gained in this way may provide a valuable guide to future amendments. The poor man charged with crime has no lobby. Legislation to guarantee him an adequate defense is the product of no faction, no section, no political party. It has been sponsored or supported for 25 years by Democratic and Republican administrations, by prosecutors, defense lawyers, and judges, and by Members of of Congress from all parts of the country. The Criminal Justice Act is not part of any welfare program. When enacted, it would give a poor man nothing to relieve him of his poverty. It would simply recognize his right to equal justice. Our system of law and our sense of fairness require that we implement this right. In the words of the epigram on a wall of my office: The United States wins its point whenever justice is done its citizens in its courts. CRIMINAL JUSTICE ACT

I thank you, Mr. Chairman and members of the committee. Mr. CELLER. Mr. Attorney General, did you notice while you were in the room that the import of the question was to the effect or the gravamen of the objection of the bill on which you dilated was focused around the question of whether or not it was wise or proper for the Government, through the executive branch to appoint U.S. attorneys to prosecute, and for the Government, through its judicial branch to appoint pubhc defenders to defend. Do you see anything hurtful in that? Attorney General KENNEDY. I do not, Mr. Chairman. Mr. CELLER. Is there anything inconsistent in that? Attorney General KENNEDY. I do not see anything different in that than the judge appointing a specific counsel. We say it is permissible to appoint a public defender and it is the judiciary that does it. Judge Dimock was concerned about the executive branch appointing both prosecutor and defense counsel. Even when you have assigned counsel, you get the Federal Govern- ment still appointing both the prosecutor and defender because it is the executive branch of the Government that is appointing the prosecutor and judicial branch that is appointing the defender. Mr. CELLER. You do not see anything harmful in that? Attorney General KENNEDY. Not .a bit. And I think that each district should make its own decision. It has been true here, Mr. Chairman, in the District of Columbia, and it has been remarkably successful. Mr. CELLER. Do you know whether or not in those States that have a system very much like that embodied in I-.R. 4816, there has been any such objection leveled against this system? Attorney General KENNEDY. There has not and it has been remarkably successful. Mr. FOLEY. We have had a public defender in the Panama Canal Zone for years, have we not? Attorney General KENNEDY. Yes. Mr. FOLEY. There has been no criticism of that, has there? Attorney General KENNEDY. There has not and there is one in the District of Columbia here which has been remarkably successful and which was set up with the concurrence of Congress and has been very effective. Mr. MCCULLOcH. Mr. Chairman, I would like to ask a question at this point. Mr. CELLER. -\,r. McCulloch. Mr. McCULLOCH. Is it a fact that as much as 85 to 90 percent of counsel in those cases are voluntary? Attorney General KENNEDY. I do not know what the percentage is, Congressman. Mr. MCCULLOCH. It is very high. Attorney General KENNEDY. If you have studied it, I am sure you know. I just don't have the figures. Mr. MCCULLOCH. I do not remember the figure. I know it is very high where the defense attorneys are voluntary-volunteers under this system. In connection with the manner in which these systems have func- tioned, have you made a study of our system in Ohio? Attorney General KENNEDY. No, I have not. 34 CRIINAL JTUSTICE ACT

Mir. _-MCCuLLOCH. So then, of course, you do not know whether it is operating well or poorly. Mr. CELLER. What is that system? Mr. MCCULLOCH. Well, we have a legal system whereby the Ohio court is authorized to, and has a right to appoint counsel who is compensated and who is authorized pursuant to law, as I recall, to incur the necessary and proper expenses in preparing his case for trial. And after some 10 or 12 years in the Ohio Legislature, and after some 12 to 15 down here, there have been few, if any, communications from either the bar or the courts in Ohio that our system has not worked. Now, Mr. Chairman Mr. MEADER. May I ask my colleague to yield? Is the compensation for appointed counsel in Ohio merely nominal or is it full compensation for services? Mr. MCCULLOCH. It is more nominal and is in the discretion of the trial judge up to a certain amount and without exception, in normal times, the fee is fixed by the trial court and is made in accordance with law and from the public treasury. Mr. MEADER. Will the gentleman further yield to me to address a question? Mr. MCCULLOCH. Yes. Mr. MEADER. Mr. Attorney General, I did not notice any statement about the cost of these programs in your prepared statement. Has the Department of Justice made any estimate of the probable cost of a public defender system on the one hand or compensation corresponding to $15 per hour for trial work and so on? Attorney General KENNEDY. Congressman, we have made a study of the various districts and what they might do, what kind of systems we anticipate will be set up. We do not know for sure what kind of systems will be set, up. Mr. 'M EADER. Do you have a lump-sum figure? Attorney General KENNEDY. We have that and a memorandum that breaks it down and shows what we think is going to happen in each district and what the cost will be. Mr. CELLER. I have a tentative figure of $3,500,000. Attorney General KENNEDY. That is for the whole operation. Mr. MEADER. Should that be incorporated? Mr. CELLER. We will put that in the record. (The memorandum referred to is as follows:) THE WHITE HOUSE, Washington, March 8, 1963. Hon. JOHN W. MCCORMACK, Speaker of the House of Representatives, Washington, D.C. DEAR MR. SPEAKER: To diminish the role which poverty plays in our Federal system of criminal justice, I am transmitting for consideration by the Congress proposed legislation to assure effective legal representation for every man whose limited means would otherwise deprive him of an adequate defense against criminal charges. The need to protect this basic right makes enactment of this measure imperative. In the typical criminal case the resources of government are pitted against those of the individual. To guarantee a fair trfal under such circumstances requires that each accused person have ample opportunity to gather evidence, and prepare and present his cause. Whenever the lack of money prevents a defendant from securing an experienced lawyer, trained investigator or technical expert, an unjust conviction may follow. The Attorney General's accompanying letter describes the deficiencies in the present system. These defects have prevailed for many years despite persistent CRINAL JUSTICE ACT

pleas for legislation by the judicial and executive branches and the organized bar. airness dictates that we delay no longer. I commend the proposed Criminal Justice Act of 1963 for prompt and favorable action by the Congress. Its passage will be a giant stride forward in removing ti.e factorSincerely, of financial resources from the balance of justice. JOHN F. KENNEDY. Enclosure. OFFICE OF THE ATTORNEY GENERAL, Washington, D.C., March 6, 1963. The PRESIDENT, The White House. DEAR MR. PRESIDENT: In your state of the Union address on January 14, 1963, you said that "The right to competent counsel must be assured to every man accused of crime in Federal court, regardless of his means." To give substance to that right, and in implementation of your statement, I forward for your consideration proposed legislation to provide for the defense of impoverished persons in Federal criminal cases. Because the American judicial system for determining guilt or innocence relies upon skilled adversary presentations by prosecutors and defense lawyers, the duty to furnish adequate representation to every defendant who cannot afford it is dictated not by charity and the Constitution alone, but by justice itself. The obligation of the Federal Government to honor that duty is long past due. Widespread demand for a statute of this character dates back more than a quarter of a century. Highly respected advocates of its enactment have been drawn alike from those responsible for prosecuting, for defending, and for judging Federal criminal cases. Since the late 1930's every Attorney General, the American Bar Association and the Judicial Conference of the United States have urged legislation to reinforce the right of the poor to counsel. On February 4 of this year, in New Orleans, the American Bar Association reaffirmed its position and endorsed the principles embodied in the accompanying proposal. The foundation of the right to counsel is the Constitution. The sixth amendment provides that "In all criminal prosecutions, the accused shall enjoy the right * * * to have the assistance of counsel for his defense." In 1938, in Johnson v. Zerbst, 304 U.S. 458, 467-468, the Supreme Court held that "compliance with this constitutional mandate is an essential jurisdictional prerequisite to a Federal court's authority to deprive an accused of his life or liberty. When this right is properly waived, the assistance of counsel is no longer a necessary element of the court's jurisdiction to proceed to conviction and sentence. If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the sixth amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty." Absent waiver, the Supreme Court declared, a Federal court may proceed with a criminal case only "by providing counsel for an accused who is unable to obtain counsel." Past Congresses have considered numerous bills to meet the representation needs of accused persons who lack funds to provide for their own defense. The thoughtful attention devoted to this problem has led to the development of increasingly comprehensive programs for legislative action. The proposal now being transmitted represents a distillation of the best elements found in past bills, coupled with additional improvements resulting from congressional hearings, learned writings, and experience accumulated through the years. Formulation of this measure originated with a special nine-man committee of judges, lawyers, and legal scholars appointed by me in April 1961, to explore the impact of poverty on the administration of Federal criminal justice. The committee, under the chairmanship of Prof. Francis A. Allen of the University of Michigan Law School, consists of Judge Walter E. Hoffman of the U.S. District Court for the Eastern Disttict of Virginia; Associate Justice Walter V. Schaefer of the Supreme Court of Illinois; John F. Grady of Waukegan, Ill., a former assistant U.S. attorney for the northern district of Illinois; George R. Nye of Oakland, Calif., former public defender of Alameda County; John Bodner, Jr., of the District of Columbia bar; James M. Marsh of the Pennsylvania bar; Prof. Joseph Goldstein of Yale Law School; and Prof. Herbert Packer of Stanford Law School. Out of the collective experience and inquiry of this distinguished group emerges a striking portrait of our Federal courts' inability to offer equal justice to the poor, and a sound legislative proposal. CRIMINAL JUSTICE ACT

Under typical procedures prevailing in the Federal system, no attorney is appointed to represent the needy defendant until he is arraigned, that is, required to plead to the charge against him. The preliminary examination before the commissioner and the grand jury stage pass without the accused having the benefit of counsel or investigation. The case for the defense is then committed to an attorney who will receive no fee for his services or reimbursement for his expenses, and who has no investigators to check facts or experts to analyze evidence. Some- times these drawbacks will be offset by assigning to the defendant an experienced criminal trial practitioner who may subsidize the defense out of his own pocket. Far more often, however, the assignment will go to a young and inexperienced lawyer, unable to finance the careful search for witnesses and evidence and the time-consuming preparation and trial which an adequate defense may demand. Representation so limited-late in time, lacking in money, and short on experience-is representation far short of that contemplated by the framers of our Constitution. The response of lawyers to appointments by the court to represent the poor is one of the finest traditions of the American bar; but the circumstances under which counsel in such cases must defend against skilled prosecutors with extensive factfinding resources at their disposal substantially reduce the likelihood for doing justice before the law. The proposed Criminal Justice Act seeks to remedy some of the defects which poverty has imposed on our system of criminal justice. The mission of the bill is threefold: to define the representation rights of every defendant, to require the establishment of workable plans to make these rights operative throughout the Federal system and to confine public payment for representation to the cases of those who cannot privately afford it. Several features of the bill deserve particular emphasis. First, the local option provision confers upon the district and circuit judges broad discretion to select the plan by which their courts will furnish compensated representation to qualified defendants. Four choices are authorized: private attorneys; Federal public defenders; bar associations, legal aid societies or local defender organizations; or any combination of these. The relative advantages of the various systems for a particular locality are weighed and determined by those best qualified to judge them-the local judiciary. Depending upon local conditions and philosophies they may elect the system best suited to their community. Second, the bill establishes an adequate defense standard under which representation in a criminal case is recognized as involving more than a lawyer alone. It requires making available to counsel those auxiliary investigative, expert, and other services frequently essential to ascertaining the facts and making the judgments upon which to prepare and present the defendant's case. The plan adopted in each district may provide for these services to be furnished either through salaried staff personnel, personnel retained specially in each case, or a combination of these means. Third, the provision guaranteeing counsel at every stage of the proceedings, commencing with the initial appearance before the commissioner, is designed to afford representation to each defendant throughout his involvement in the judicial process. It insures that the advice of counsel will be available at the critical early stages when recollections are fresh and the opportunity to uncover evidence is greatest. Finally, the proposal limits the benefits of the statute to persons financially unable to obtain an adequate defense. The term "indigency" is avoided because of its implication that only an accused who is destitute may need appointed counsel or services. Experience demonstrates that many persons have resources sufficient to defray part but not all of the expenses of their defense. In order that representation may be furnished to the extent of each defendant's need, we have proposed that partial payments may be required and that the statute shall become operative at whatever stage of the proceedings the accused is found financially unable to obtain counsel or services necessary to an adequate defense. At the same time, the requirement of an "appropriate inquiry" to determine the defendant's financial need is intended to assure that the court, by hearing, affidavit or other suitable investigation, will scrutinize all applications for representation. CRIIINAL JUSTICE ACT

The inscription which graces the Attorney General's rotunda in the Department of Justice declares that "The United States wins its point whenever justice is done its citizens in the courts." Clearly justice is not done when poverty prevents a person from securing effective legal representation for his defense against a criminal prosecution which places his personal liberty, or even his life, in jeopardy. This legislation is designed to bring the scales of justice into balance in such cases. I urge its favorable consideration, and prompt transmittal to the Congress. Respectfully, ROBERT F. KENNEDY, Attorney General.

U.S. DEPARTMENT OF JUSTICE, Washington, D.C., May 7, 1963. ESTIMATED COST OF OPERATION OF CRIMINAL JUSTICE ACT OF 1963 (S. 1057 AND H.R. 4816) INTRODUCTION The national percentage of indigent criminal defendants has risen steadily from 25.8 percent in fiscal year 1958 to 31.3 percent in fiscal year 1962. It is estimated that the Criminal Justice Act of 1963 will initially cost about $3,500,000. The summary of our estimate of cost below and the accompanying details of that estimate represent an attempt to show how this estimate was derived. Although some Federal judicial districts are shown as having a public defender office and others as operating on a compensated-by-the-case assigned counsel basis, this is not to be taken as a recommendation or suggestion that a given arrangement is the most feasible one for a particular district or size-type of district. The plan for any given district is, under the bill, to be worked out for each district by the district court and the judicial council of the circuit. It would have been impossible, at this point, to anticipate all of the individual district variations and thus the arrangement herein is used only to illustrate the components of costs. Summary of estimated cost 1. Estimated cost of public defender offices in 11 districts: A. 3 large districts 1 ------$447, 399 B. 2 sublarge districts ------157, 770 C. 4 medium districts ..------181, 300 D. 2 submedium districts ------67, 960 Subtotal ------854, 429 II. Estimated cost of assigned counsel compensated by fee-plus- expenses in 78 other districts: Counsel fees ------942, 810 All other costs ------342, 840 Subtotal ------1,285,650 III. Esimated cost of administration ------20, 230 IV. Estimated cost of fees for witnesses, experts, and mental examination ------649, 800 V. Estimated allowance for contingencies ------689, 891

Estimated total cost ------3,500,000

See footnotes at end of table, pp. 40-41. CRIMINAL JUSTICE ACT

DETAILS OF ESTIMATE I. Estimated cost of public defender offices: A. Estimated average unit cost in 3 large districts: 2 Public defender ...... $16, 000 1st assistant public defender 14, 000 Assistant public defender ...... 12, 000 D o ...... 10, 000 Assistant public defender (2 at $8,000 each) ..... 16, 000 Chief investigator------8, 000 Assistant investigator (4 at $6,700 each) 26, 800 Secretary ------5, 500 Stenographer-typist (2 at $4,600 each)------9, 200 Subtotal ------109, 500 Retirement and insurance (agency costs at 0.075 per salary-dollar) ------8, 213 Travel (6 attorneys and 5 investigators times $600 each) ------6, 600 Rent (14 employees times 250 square feet times $3 per square foot each)...... 10, 500 Communications (14 times $200 per annum plus $25 installation each)...... 3,150 Furniture, supplies, and equipment (public defender, $3,500; attorneys and investigators, $400 each; 9, 450 secretary and stenographer, $650 each) Library (initial cost)-. 1,500 Mail and miscellaneous ($20 per attorney and investigator) ------220 Total ------149, 133 Total, 3 large districts ------447, 399 B. Estimated average unit cost in 2 sublarge districts: 3 Public defender------14, 000 1st assistant public defender 10, 000 Assistant public defender- 8, 000 Chief investigator ------8, 000 Assistant investigator ..... 6, 700 Secretary ------5, 500 Stenographer-typist ...... 4, 600

Subtotal ------56, 800 Retirement and insurance (agency costs at 0.075 per salary-dollar) ------4, 260 Travel (3 attorneys and 2 investigators times $600)__ 3, 000 Rent (7 employees times $250 times $3) ------5, 250 Communications (($200 and $25) times 7 employees) 1 , 575 Furniture, supplies and equipment (public defender, $3,500 (2 attorneys and 2 investigators times $400) and (1 secretary and 1 stenographer times $650)-__ 6, 400 Library (initial cost) ------1, 500 Mail and miscellaneous ($20 per attorney and investigator) ------100

Total ------78, 885 Total, both districts ------157, 770

See footnotes at end of table, pp. 40-4L CRIMINAL JUSTICE ACT

DETAILS OF ESTIMATE-Continued I. Estimated costs of public defender offices-Continued C. Estimated average unit cost in 4 medium districts: 4 Public defender- $12, 000 Assistant public defender 8, 000 Investigator...... 6, 700 Secretary 5, 500 Subtotal --- 32, 200 Retirement and insurance (agency cost)_ 2, 415 Travel (2 attorneys and 1 investigator times $600)_ 1,800 Rent (4 employees times 250 times $3) ------3, 000 Communications (4 employees times ($200 and $25)) _ 9oo Furniture, supplies, and equipment (public defender $3,500 and (2 attorneys and 1 investigator times $4400) and (1 secretary and 1 steno times $650))-- 4, 950 Libr ary (initial cost)------1, 500 Mai1 and miscellaneous ($20 per attorney and in- vecstigator) ------60 Total ------45, 325 Total, all 4 districts ------181, 300 D. Estimat ed average unit cost in 2 submedium districts: 1 Public defender ------12, 000 Inveestigator ------6, 700 Seer'etary------5, 500 S5ubtotal ------24, 200 Retirement and insurance (agency costs) ------1, 850 Tra'vel (1 attorney and 1 investigator times $600)__ 1, 200 Rent (3 employees times 250 times $3) ------2, 250 Conimunications (3 employees times ($200 and $225)) ------675 Fur niture, supplies, and equipment (public defender, $3,500 and (2 attorneys and investigator times $4400) and (1 secretary and 1 steno times $650))-- 4, 550 Libr ary (initial cost) ------1,500 Mai1 and miscellaneous ($20 per attorney and inveestigator) ------40 Total ------33, 980 Total for both districts ------67, 960

II. Estimated cost i n 78 other districts ------() 1. Per case: Counnsel fees at $15 per hour ...... 165 Cost of investigation at $350 per hour- 8 35 Cost of secretarial assistance at $2.50 per hour------9 15 Other incidental expense- 10 10

To tal------225

2. For 5,714 cases: " Counsel fees ------942, 810 Cost of investigation ------199, 990 Cost of secretarial assistance ------85, 710 Other incidental expense ------57, 140 Total ------1,285, 650 See footnotes at end of table, pp. 40-41. 40 CRIINAL JUSTICE ACT

DETAILS OF ESTIMATE-Continued III. Estimated cost of administration: Personnel division, 1 additional employee ------$4, 100 Division of procedural studies and statistics, 1 additional employee ------4, 100 Division of Business Administration, 2 additional employees. 8, 200 Retirement and insurance ------1, 230 Supplies and equipment ------2, 600 Total ------20,230 IV. Estimated cost of witnesses, experts, and mental examinations_ 12649, 800 V. Estimated allowance for contingencies ------138689, 891 The districts for which offices are shown are divided, according to the volume of criminal cases in which the defendant is represented by court-appointed counsel, into large, sublarge, medium, and submedium. The figures as to caseload were derived from a table, titled "Criminal defendants terminated by conviction or acquittal in the 87 U.S. district courts and the District of Columbia during fiscal year 1962 showing, by district, the number who had counsel appointed," and supplied to the Department of Justice by the Ad- ministrative Office of the U.S. courts on November 7, 1962. A map of the United States illustrating this table has been prepared by the Department of Justice and is appended hereto at end of table. 2 These districts are California, southern; District of Columbia; and New York, southern. According to the aforementioned table prepared by the Administrative Office of the U.S. courts, in these three districts counsel were appointed to represent the following numbers of defendants in criminal cases terminated by conviction or acquittal in fiscal 1962; Southern District of California (829), District of Columbia (687) Southern District of New York (604). The total for all three districts is 2,120 and the average per district is approximately 707. Although the District of Columbia now has a federally-supported Legal Aid Agency to assist indigent criminal defendants, this Agency has been able to handle only a fraction of the number of indigent defendants in federal district court, none of the criminal appeals, and virtually none of the indigen t cases in the municipal criminal court system. It is estimated that the additional funds secured for the District by inclusion herein will provide the needed Government support to compensate counsel or make available a public defender in all indigent criminal cases. 3 These are California, northern, and Arizona. According to the aforementioned table prepared by the Administrative Office of the U.S. courts, these districts had 394 and 312 criminal defendants respectively, for whom counsel were appointed in fiscal 1962. Total for both districts is 706 and the average is 353. 4 These are New Mexico; Missouri, western; Tennessee, eastern; and North Carolina, middle. Accord- ing to the table prepared by the Administrative Office of the U.S. courts, these districts had 224, 200, 198, and 192 criminal defendants, respectively, for whom counsel were appointed in fiscal 1962. Total for all four districts is 814 and the average is 204. Ohio, southern, with 276 criminal defendants represented by appointed counsel in fiscal 1962, falls numeri- cally between the sublarge and medium districts. towever, it would be more economical to provide counsel on a fee basis for $62,100 (276X$225 per case-see p. 9, infra) than to set up a sublarge-type office at a cost of $78,885. A medium-sized office with two attorneys and an investigator would probably not be adequate to handle that many cases, particularly where, as in this district, three judges conduct court in different locations throughout the district. Florida, southern, with 342 indigent defendants, has been split into two districts, Florida, middle, and Florida, southern. Since it is not known what the number requiring counsel in each of the new districts will be, the 342 has been arbitrarily divided between the two, assigning 171 to each. Thus these two districts are included in the group with Kentucky, western (189); Virginia, eastern (183); Indiana, southern (182); Kansas (176); Kentucky, eastern (171); and Texas, southern (167). A medium-sized office might be adequate for these districts, although a submedium might not be (see p. 8, infra) but it appears to be more economical to provide counsel on a fee basis at $225 per case, ranging between $42,525 (189X$225) and $37,575 (167X$225) per district. 5 These are Oregon and New York, eastern. These districts had 158 and 157 criminal defendants, respectively, for whom counsel were appointed in fiscal 1962. The total is 315 and the average is 158. In the remaining districts, ranging from Tennessee, western (135) to New Hampshire (1), It would appear to be more economical to assign counsel on a fee basis than to maintain an office such as that described above (for example, the cost in Tennessee, western would be $30,375-135X$225). a These are all of the districts for which no public defender office is indicated, including those discussed in footnotes 3 and 4, supra. No figures were available for the Federal courts in Guam and the Virgin Islands. The Canal Zone is not covered by the bill. 7 This figure is derived from the statistics supplied by the Legal Aid Agency of the District of Columbia and the Georgetown University School of Law legal internship program (also known as the Prettyman Fellows). The figures of the Legal Aid Agency show that for the 6-month period ending December 31, 1962, the Agency attorneys spent a total of 4,376 hours on 444 cases. During the period from December 1, 1962, through March 31, 1963, the statistics kept by the legal internship program show that the attorneys in that program spent a total of 325 hours on 29 cases. The combined experience of these two, a total of 4,701 hours spent on 472 cases, results in an average of 9.96 hours per case. This is not to overlook the possibility that this average probably underrepresents the amount of time that an attorney might have to spend on the average criminal case in Federal court. The Legal Aid Agency figures, for one thing, include in the total of cases the many juvenile proceedings, coroner's inquests, and appearances before the U.S. Commissioner handled by these attorneys, which proceedings would tend to require far less time than the average district court case. In fact, it has been estimated by Gary Bellow, the Agency attorney responsible for the compilation of such statistics, that 85 percent of the attorney's time is spent on the district court cases, which numbered 144 during this period. This being so, the average is probably closer to 27 hours per case. Similarly, Prof. George Shadoan, director of the legal interns, believes that the average of 27 hours per case for the four district court cases included in his statistics is more accurate, inasmuch as the relatively simpler procedures in the Court of General Sessions require less time in handling than a similar assignment in the district court. On the other hand, both Mr. Bellow and Mr. Shadoan mentioned that these attorneys did much of their own investigation. It is hoped that adequate provision for investigative services will eliminate this inefficient use of attorney power. Also, the attorney compensated at the rate of $15 per hour (the statutory maximum) would, it is hoped, be able to perform his task more quickly than young attorneys in these programs. Where a less experienced attorney is used, the rate might correspond- ingly be lower (for example, instead of 10 hours at $15 per hour, we would reach the same result with 15 hours at $10 per hour). In addition to the estimate of 16 hours per case at the trial level, there is a general estimate of 1 hour per case on appeal. This is based on the following: 30 percent (the national percentage of indigent cases) of CRIMINAL JUSTICE ACT 41

384 criminal appeals terminated in these 78 Federal districts in fiscal 1962 equals 115 which is 2 percent of 5,714 (number of indigent criminal defendants). It is estimated that an attorney will spend approximately 60 hours per appeal at a cost of $900 for his time and his secretary will spend approximately 8 hours, resulting in a cost of $20 per appeal. Other expense per appeal is estimated at about $5 per appeal; 2 percent of this total of $925 is 18.50. This cost has been distributed under the various cost items in this estimate. The addition to the attorney's estimate is approximately 1 hour at $15 per hour, and $2.50, representing 1 hour, has been added to the clerical expense. The other dollar was added to general expenses. The investigators employed by the Legal Aid Agency reported that they spend an average of 10 hours per case. Even though other figures supplied by that agency indicate that approximately 29 percent of the cases handled by the attorneys were investigated by the staff investigators, inquiry disclosed that the remaining 71 percent of the cases were investigated by either the staff attorneys themselves or by unpaied student volunteers. The rate of $3.50 an hour is generally based on the pay grade of a GS-11, which is a fully qualified investigator under standards set by the Civil Service Commission. 9 This is based on an approximate ratio of 1 secretary hour for 2 attorney hours, derived from the experience in the Department of Justice. '0 The Legal Aid Agency in its report for the fiscal year 1962 stated that expenses per case were about $3 where assigned to an outside attorney and $3 for an investigator. The Georgetown interns averaged $6 per case expenses; $4 per case for an attorney and $3 per case for an investigator is selected as an average. The other dollar is for appellate expenses as explained in footnote 7. 11 Total number of criminal defendants in the 78 districts for whom counsel were appointed in fiscal 1962. 12 This is 30 percent of the $2,166,000 allocated to U.S. attorneys for this purpose. The allocation to the U.S. attorneys is for their civil cases as well, but inasmuch as U.S. attorneys use fewer nongovernmental witnesses than do criminal defendants, it was decided to use 30 percent of the whole amount here. 13 This is approximately 25 percent of the $2,810,109 total for the bard estimate. This estimate was pur- pesely not rounded off so that an easy-to-use total of $3,500,000 would be available as a final figure. 42 CRIMINAL JUSTICE ACT CRIMINAL JUSTICE ACT 43

Attorney General KENNEDY. We have a memorandum of how we arrive at that figure so you can find out specifically what it costs. Mr. CELLER. I will put the statement from the Department of Justice in the record. Attorney General KENNEDY. This is a more complete memorandum, Mr. Chairman, which goes into a good deal of detail. Mr. MCCULLOCH. The paragraph at the bottom of page 2, shows that the Attorney General, Attorney General Rogers, was for such a system, and of course, many lawyers recognize the shortcoming and the existing conditions. As a matter of fact, they are intolerable and it is necessary to do something about them. However, there is no unanimity about the manner that we should take in solving this problem and I wish to refer to a statement by Justice Brennan made in 1956 and have it inserted in the record as touching on this problem in a very careful way. This statement was printed in volume 15, the Legal Aid Brief Case, November 1, 1956, at pages 76 and 77. So far as the bar is concerned, I think first of all it must be acknowledged that the primary responsibility for the establishment and maintenance of an adequate number of legal aid officers and committees in all parts of the Nation is one of the cardinal obligations of the legal profession. And, lawyers are among the first in contributions for the financial support of organized legal aid work. But experience has shown over the years that the need for organized legal aid is greater than the capacity of the profession to satisfy the demand. Equally important, legal aid operates most effectively when it has general community support and the sympathetic consideration and help of the leaders in the community and civic affairs who give their time to it. Financial support is very important, but by no means more important than community assistance in formu- lating the policies under which legal aid works. And yet laymen have been puzzled at times why lawyers as a group resist the creation of a Government bureau of lawyers to do this work. I think the reason is clear and readily stated and, once stated and understood, widely accepted by Americans generally. The plain fact is that an independent bar is just as essential to the preservation of freedom as is an independent judiciary, or the bill of rights in our Federal and State Con- stitutions. The bar is the creation of a democratic people to intervene a champion between the individual and his government. Too often in history the citizens of other countries possessing constitutions and bills of rights similar to our own lost their liberties because they did not possess a bar with sufficient courage and independence to establish those rights by a brave assertion of the legal processes developed for their vindication. The fear is that a government agency of lawyers paid with tax money may be followed by governmental control of the profession. The fear is not so much on the preservation and protection of our democratic form of government. If a citizen opposes his government, and the lawyers for both parties are paid by the government, will the citizens get that fearless and resolute representation by his counsel which history proves is essential to the proper administration of justice? If government-paid attorneys do this work, receiving their salaries from the Public Treasury, will that, despite its innocence, be the first step, the entering wedge, leading to a subservient bar with all that such a bar foretells in the threat to individual liberties not alone of lawyers, but of everyone? The import is that the Justice at that time was opposed to a public defender system in the Federal establishment as has been under study in the past. Mr. CELLER. You could not necessarily or reasonably quote that statement as an objection against some of the bills that we have offered. Mr. MCCULLOCH. No, no, not that at all. I just wish to insert it for the record so that it may be read and evaluated by those who read it. I am very pleased to have the report of your committee, Mr. Attorney General, in this field and I refer to the second full paragraph on page 34 with respect to these figures and to the statement on page 4 about the number of people who plead guilty, who 44 CRIMINAL JUSTICE ACT

have counsel assigned and the number of those who are acquitted, who go to trial and who have private counsel. Now, it is my opinion from reading this paragraph, that it is quite difficult to correlate any definite conclusion from those facts and I think this paragraph defi- nitely indicates that. I will only quote a sentence or two by reason of the demand for time. Attorney General KENNEDY. What page are you talking about? Mr. MCCULLOCH. I refer to the second full paragraph on page 28. I will only read the first sentence- Any effort at statistical demonstration of the inadequacies of a system of representation must inevitably confront serious difficulties. Attorney General KENNEDY. Yes. Mr. MCCULLOCH. And of course considerable explanation after that. I would like to have that full paragraph in the record at this point. (The paragraph referred to follows:) Any effort at statistical demonstration of the inadequacies of a system of representation must inevitably confront serious difficulties. This is true basically for the reason that financial status may determine in large measure what sorts of offenses an individual will commit and the circumstances in which he will commit them. Thus the impoverished accused most often will commit offenses that have a high degree of visibility. In the Federal courts he is likely to be charged with such crimes as sale of narcotics, transportation of stolen vehicles, and thefts against the mails. In many situations the defendant is apprehended in the streets as he commits the offense or with incriminating goods or objects on his person. Frequently such a defendant has signed a confession before counsel enters the case. It is thus true that in these cases there is often no substantial question of guilt and that representation must be directed primarily to the issue of sentence or other disposition. Accordingly, statistics showing, for example, a higher percentage of pleas of guilty among cases in which defendants are represented by assigned counsel may reveal more about the character of the crimes committed than the quality of the representation. For these reasons the committee has rested its conclusions on the deficiencies of present practices on direct observation and the informed judgment of competent observers rather than on the statistics now to be presented. Nevertheless the figures collected by the committee in four Federal districts are of interest. It may be of signifi- cance that they are consistent with the conclusions reached by the committee on other grounds. Mr. CRAMER. Will the gentleman from Ohio yield? I would like to ask the Attorney General a question. Mr. CELLER. I yield to Mr. Rodino. Mr. RODINO. Mr. Attorney General, is it not a fact that even in those areas where public defenders are assigned, that there is no provision for the factfinding services that are so necessary? Attorney General KENNEDY. That is correct. Mr. RODINO. In the preparation of the case? Attorney General KENNEDY. That is correct. Mr. RODINO. And do you not consider that it is essential for adequate representation, this factfinding and investigative service? Attorney General KENNEDY. Absolutely essential and I bring to your attention,. Congressman Rodino, a case that, has just been decided in the middle district of Alabama by an outstanding judge- United States v. Ned Germany. Appointed counsel felt that he needed to interview a witness who was some 90 miles away. Mr. Germany did not have the funds to pay for that trip. The counsel was obviously not prepared to pay for it out of his own pocket, so he went to the court to ask for money so he could pay for the trip and inter- CRIMINAL JUSTICE ACT view this very important witness. The Department of Justice said it did not have the funds. Nobody had any funds. The judge dismissed the case against Mr. Germany on the grounds that there was no system established to permit the defendant to have adequate investigative work done so that he could get a proper defense. He was deprived of counsel required by the sixth amendment. Now, this is this case. There are going to be cases thrown out all over the country if this is followed and it makes a good deal of sense, I must admit. I would like to say, from what I understand, down through history everybody has agreed that some legislation needs to be passed. There is argument that in the State of Ohio one system is the best and lawyers in the State of Ohio like it. In the State of Montana they like a particular system and in the State of New York they like a different system. I think that every district and every circuit should decide those things for itself. The important thing is to get legislation, not for us who are involved in this matter to spend all our time, year after year after year, arguing about which system is better and in which part of the United States. Let every district set up what they think is best for themselves. You are never going to get lawyers to agree on everything. Mr. RODINO. I agree with you. Attorney General KENNEDY. We have been arguing for 25 years, back and forth between one side and another, between one lawyer and the other as to which system is the best. Everybody decides for himself. That's why we think this is the best legislation that has been suggested and recommended. The legislation is desperately needed and I think we should get off the discussion and get on to what is needed. Mr. ROGERS. Mr. Attorney General, as I understand, the proposals contained in the chairman's bill and the other bills that have been introduced contemplates a plan in each judicial district. Attorney General KENNEDY. That's right. Mr. ROGERS. To be approved by the judicial council of that circuit? Attorney General KENNEDY. That's correct. Mr. ROGERS. Now, is it possible that in one district you could have a public defender appointed and his salary should not exceed that of the U.S. attorney for that district? Attorney General KENNEDY. That's correct. Mr. ROGERS. And if the judges should decide that he needed 10 assistants, they would be authorized to designate 10 assistants? Now, on page 4 of section (d), there is a proposal, "Services other than counsel." Now, the public defender could be appointed for each circuit or each district, as I say, or they could go on a private counsel or any other named plans here. Attorney General KENNEDY. That's correct. Mr. ROGERS. But in this provision, they say that- (d) Services other than counsel. The plan for each district shall contain provisions for furnishing investigative, expert, or other services necessary to an adequate defense to each defendant determined by the U.S. commissioner or the court after appropriate inquiry to be financially unable to obtain them. Attorney General KENNEDY. Yes.

21-022.--6------4 46 CRIMINAL JUSTICE ACT

Mr. ROGERS. Does that mean that whatever plan is adopted in the circuit for that particular district, that there must be a system whereby an investigator is assigned? Attorney General KENNEDY. No, no; all it says is that they have to come up with a plan as to how they are going to handle it. If an investigator is needed in a particular case, what steps they will take to provide the investigator. Doesn't mean they appoint Mr. ROGERS. It says, "The plan for each district shall contain provisions for furnishing investigative," and so forth. Attorney General KENNEDY. That's correct; it has to contain provisions to provide for investigators or any of the other services if such services are requested. Mr. ROGERS. Suppose that the plan came up and the judge recommended that where this should be investigated-that where there should be investigation on behalf of the defendant, that they assign someone from the FBI to do the investigation. Is that planned? Attorney General KENNEDY. I would think there would be a conflict in it. I don't see how that would be acceptable. They aren't going to say that the President of the United States is going to make it or you are going to make it. I think they will come in with a plan that is understandable and acceptable. They will come in with a plan and draw it up and submit it and you would have a chance to-you would have a chance and opportunity to review the plan. Mr. ROGERS. We would not have a chance to review it here. Attorney General KENNEDY. Yes; you will. Mr. ROGERS. I thought the plan had to be set up by the district judge and approved by the council. Attorney General KENNEDY. They have a year-this is another advantage. This is another advantage of the bill-there is a year before this goes into operation and every one of the districts has a year to formulate its plan. So you are going to have an opportunity to review their plan as well. But the plan has to make some sense, obviously. We expect that it will. Mr. CRAMER. Mr. Chairman. Mr. CELLER. Mr. Cramer. Mr. CRAMER. I have three or four questions, Mr. Attorney General, relating to the basic concept of the act. Let's assume, for instance, that a district, as a result of the judicial circuit approving it should approve plan No. 2 as contained on page 2; that is, part-time public defender and assistants with the other personnel provided for investigations, and so forth. Does this not deny the defendant if he does not want the public defender from the right to make a choice? The defendant, if he does not have confidence in the public defender, whoever he might be, should he not have a right to make a choice? Attorney General KENNEDY. I suppose if he had appointed counsel, the judge could also appoint a counsel for an individual whom he didn't like. I suppose he could make-you could have in your plan some allowances for a change. The particular district could, or any district that came in with a plan could recommend that if that contingency arose, certain other steps could be taken. CRIMINAL JUSTICE ACT

Mr. CRAMER. That gets to the point of my inquiry. On line 12, it specifically provides- The provision for counsel under each plan shall conform to one of the following, and gives the circuit and district full authority to make a determination as to whether they want a combination of all three or just one of the three. And my question is, If they decide to have a public defender office with assistants and the defendant does not wish to have that public defender represent him, is he not, then, foreclosed from a defendant's right to request other counsel? Attorney General KENNEDY. Well, then, I think we should have clarifying language, Congressman, to make sure we cover that. Mr. CELLER. Mr. Attorney General, in that regard, as I read the bill, and I fashioned the bill and made certain changes in it, the accused does not have to take the public defender as his lawyer if he does not wish it. He can waive that. Now, he should not have a choice. The Government is giving him an opportunity to have somebody represent him. He has this. If he does not want to accept the type of lawyer that the Government offers him, or the judicial circuit offers him, he should not be in a position to complain in any respect. There is no right of his that is treaded upon at all. He can waive whether it is assigned counsel or whether the counsel is in the form of a public defender. He has a perfect right to do that. Attorney General KENNEDY. I could imagine, however, Congress- man, there might be some circumstances arising where somebody has a personal grudge against the individual who happens to be the public defender and perhaps we would want to have something in this legislation that would provide for protecting him. Mr. CRAMER. If the chairman would yield. There is no language in the legislation as I read it, with due respect to the chairman, that gives the defendant any choice at all. Once the plan is adopted he must conform to that plan and if they adopted a nonflexible No. 2 with a public defender, he must take the public defender or he gets no representation. Mr. ROGERS. Will the gentleman yield at that point? Mr. CRAMER. I am asking the Attorney General because he is the authority on this. Do you not think the bill should provide an option that a defendant should not be tied down so far as his right to make a choice? Should he not have that right? Attorney General KENNEDY. Obviously, you can run into great difficulties when you appoint counsel. The judge appoints counsel and the defendant doesn't like him and you perhaps appoint somebody else. I don't know how long you can run that streak out, but I think the point that you make is a valid point, Congressman, and I am sure we can cover it with some language and when the plans are submitted by the various districts to make sure if an individual happens to have a problem with a particular public defender or particular appointed counsel, some other arrangements can be made. But as I say, I don't know that that can be never ending. Mr. FOLEY. Mr. Attorney General, with reference to Mr. Cramer's questions to you, on page 3, line 16 through 20, the language there states: The U.S. commissioner or the court shall appoint separate counsel for defendants who have such conflicting interests that they cannot properly be represented by the same counsel, or when good cause is otherwise shown. CRIMINAL JUSTICE ACT

Now, going back to the hypothetical question of the defendant, who may oppose the public defender if he has a personal grudge against him? Wouldn't that language permit the court-wouldn't that language be good cause? Attorney General KENNEDY. If it is not clear enough in the legislation we can write it in and make sure it is clear as Congressman Cramer suggested. We wouldn't have any problems about that. Mr. CELLER. We can easily change the wording. Mr. Foley, what you say covers it, but I think if there is any question about it, it should be covered. Mr. ROGERS. The district court and judicial conference for that district could provide the plan-they could provide in the plan to take care of the system on the question Mr. Cramer was referring to. Attorney General KENNEDY. It might be that we might want to do so. Mr. CRAMER. And I think the defendant should have a choice and I was protecting his right to have a choice. Mr. ROGERS. They can provide a plan for each district and that plan should protect everybody. Mr. CRAMER. May I ask one or two more questions that I think are pertinent? Mr. CELLER. Mr. Cramer. Mr. CRAMER. We hear much about uniformity with regards to justice-with regards to the implementation of the Federal laws. ut does this not open the door to nonuniformity by making available four alternatives as far as the defendant is concerned? Does it not obviously permit one plan in one district or a circuit, another plan in another circuit, and as a matter of fact, in each district there could be different plans? Do you not think there is some value in uniformity? Attorney General KENNEDY. I think what you want is uniformity in providing the best defense. We think by allowing districts to make their own decisions and their own determinations as to how they can provide the best possible defense for a defendant, that that is the best way of arriving at uniformity. That's the kind of uniformity that we would like to find. Mr. CRAMER. In other words, you would not approve an approach where the combination of all plans would be the plan to be adopted. Attorney General KENNEDY. I think as Congressman McCulloch says, in Ohio they have had a plan there that has been extremely effective and has done very well and I think that perhaps they are used to that and perhaps they would like to follow that rather than take some other system that was forced upon them by the Federal Government. Mr. CELLER. May I say, Mr. Cramer, we do not always have uniformity in the Federal courts. For example, on the rules of evidence, the Federal court follows the State law as to rules of evidence. So in the Federal courts we have 50 different rules of procedure in evidence. Mr. CRAMER. I am fully aware of that. We are here drafting a Federal act and the question is, is there any justification of making it uniform in the sense that all options would be available in all States and districts. That is the question I was addressing myself to. The additional question I have is if in fact a public defender system is set up in a specific district, would this not tend to destroy the existing CREIINAL JUSTICE ACT 49 legal aid assistance which is available in many of these districts and let's assume it would be available in that particular district. Would it not destroy the legal aid system? Attorney General KENNEDY. If you just took that one plan and you didn't take the plan No. 4, which would be a combination. Mr. CRAMER. Yes. Attorney General KENNEDY. I think that the districts, after studying this, and we expect they will go into some detail, will reach the conclusion that if they adopt solely the public defender system, their legal aid societies will be affected. They might possibly decide that the argument for adopting the public defender system overrides the argument in favor of keeping these other ldnds of organizations that have made some contribution in the past. Mr. CRAMER. What I am concerned about is the possibility of drying up the assistance already available at no cost, no substantial cost to the taxpayer and substituting for it a system that may not be any better in a district if the judge decides that that is what he wants to do by establishing a public defender system. Attorney General KENNEDY. I would think that-again, it is not going to be one judge that is going to decide. They are going to consider all these factors to decide what is best for the district and I am sure that that is a factor that will be given considerable consideration. Mr. FOLEY. Actually, today we only have the legal aid in one or two districts throughout the Federal districts. Attorney General KENNEDY. That's correct. But there are other systems to which you are probably referring. There is other voluntary help and I think this is the important point, the fact that that does have an effect on those other groups, whether they are legal aid or not. Mr. CRAMER. I am through. I have no more questions. Mr. McCULLOCH. In view of the questions Mr. Cramer has been asking, particularly those that look for uniformity, would it meet the approval of the Department of Justice if there were legislation which would authorize the proper judge in every case, whether he be the trial judge or otherwise, to fix the compensation, that compensation be paid for from the public treasury together with all necessary expenses of counsel assigned? Attorney General KENNEDY. Instead of what? Mr. MCCULLOCH. Instead of any one of the alternatives that has been proposed. I might say that is in substance the Ohio system and it is the system of some 15 or 20 States in the Union that have founded it. Attorney General KENNEDY. As I say, in other districts, and particularly some of the major metropolitan areas, they feel a different system is helpful and advisable, and they argue as strongly as you do for what has been done in Ohio, and they can argue on the other side for what has been done in their particular district. What we try to do is get away from that argument backward and forward as to what system is best and let everybody decide for himself. I think rather than for us to decide here, it would be better for those in the particular areas to make the decisions. I think it is difficult for me to know what is best in New York or what is best in North Carolina or what is best in Florida. I think that they are the ones who should make that decision themselves. CRIMINAL JUSTICE ACT

Mr. MCCULLOCH. I think that is generally true, and is sound political philosophy. There are some instances, though, where I do not believe it is necessary for the Congress to advocate its authority to a thousand Federal judges. Finally, of course, I am from the country, but Cleveland and Cincinnati are in my State and we are looked upon all over the country as the metropolitan areas where the legal aid system has apparently worked to very excellent advantage. So that is the reason I asked that question to pinpoint one possible approach which may be the compromise that may be needed in this matter. Attorney General KENNEDY. As I say, we have reached the compromise, Congressman. That's the advantage of this bill. I think it is pretty difficult for this committee or for any of us to dictate to New York, or as I say, to any one of these States, as to what they should have in that particular State, because it happens to have done well in our particular district. I think it should be up to them. In addition, they are going to come in with their plans a year from now. You are going to be able to have a look at them. This at least gets this thing started. I think there has been a good deal of debate and talk about it, all centered on this one point. If we already haven't settled it for 25 years, how are we going to settle it now? So why don't we get on and get the legislation in effect? Mr. FOLEY. Don't we face on this question of uniformity a geographic problem, for instance? Take Wyoming, a one-judge State-a big State. You have 23-odd Federal commissioners there. If you were to have one public defender for Wyoming you would have a very practical problem on your hands. Attorney General KENNEDY. That's correct. Mr. FOLEY. Assigned counsel would be more adequate to meet that geographic problem. Attorney General KENNEDY. That's correct. Mr. CELLER. Thank you very much, Mr. Attorney General. Attorney General KENNEDY. Thank you, Mr. Chairman, and members of the committee. Mr. CELLER. Our distinguished colleague, Mr. Whitener. We are very glad to hear from you.

STATEMENT OF HON. BASIL WHITENER, A MEMBER OF CONGRESS FROM THE STATE OF NORTH CAROLINA

Mr. WHITENER. Mr. Chairman and members of the subcommittee, in connection with the legislation before the subcommittee, I would commence by pointing out that in both the 86th and 87th Congresses I have introduced bills identical to H.R. 3446. In this bill I merely provided that the court should appoint counsel in a criminal case and that that counsel should be entitled to adequate compensation--or rather, where they were assigned, that they should be compensated. My reason for that was, from my observation, the members of my profession have been imposed upon, certainly in our area, by being assigned to represent defendants. In many cases they have had to pay out of their own pockets the cost of preparing the defense. It seemed to me that this was a burden which our profession should not bear alone in the judicial system. CRIMINAL JUSTICE ACT

But now the bill, H.R. 4816 by the chairman of the committee, and as I understand it, by Mr. Toll and Mr. Kastenrneier, identical legislation, has been presented. I have been very much interested in it and have made a casual study of it. I would like to address myself today to that legislation. First, Mr. Chairman, and members of the committee, my distinguished constituent, the senior Senator from North Carolina, Senator Sam Ervin, who is chairman of the Senate Subcommittee on Constitu- tional Rights, has recently written an article which appears in volume 49 of the American Bar Association Journal, published in May 1963, at pages 435 through 438, relating to this subject. I do not know whether the committee has made that article a part of the record, but if you have not, I would like to do so with the committee's permission. Mr. CELLER. We will be glad to put that in the record. That is by your distinguished Senator from your State? Mr. WHITENER. Not only my Senator, but my most distinguished constituent. (The article referred to follows:)

UNCOMPENSATED COUNSEL: THEY Do NOT MEET THE CONSTITUTIONAL MANDATE (By Sam J. Ervin, Jr., U.S. Senator from North Carolina) Senator Ervin urges Congress to implement the right-to-counsel guarantee of the sixth amendment by enactment of legislation under which Federal districts may establish compensated-counsel systems to provide representation for indigents charged with crime. The Senator's experience as a practicing lawyer and judge qualifies him exceptionally well to speak out on this subject. "If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice." These words of the late Judge Learned Hand remind us that justice is a key- stone of our democracy and that we must be ever vigilant in providing for just and democratic processes. Unfortunately, we as a Nation have not adequately provided for the administration of justice. In a very real sense, justice is being rationed in this country as a result of Congress' failure to appropriate funds to guarantee counsel for indigent defendants in Federal courts. The financial resources of a defendant should be irrelevant to the administration of justice. If "equal justice under law" is to be more than a hollow phrase, then indigent defendants must be afforded adequate counsel. A fundamental principle of our Nation is that law, not force, maintains the social order. And yet each year thousands of defendants are brought before the Federal bench without benefit of paid counsel. The forces of the Government, with experienced prosecutors, trained investigating staffs and expert witnesses, are pitted against a defendant whose appointed counsel must find the spare time to defend without compensation. The Constitution of the United States speaks for these defendants through the sixth amendment, which in part provides: "In all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense." In 1938 the Supreme Court defined the rights of an accused to representation in the Federal courts. In Johnson v. Zerbst, 304 U.S. 458 (1938), the Court held it was necessary, even to establish jurisdiction of the trial court, that the accused be granted the right to counsel; without that right any judgment against him is void. The Court's holding was very clear: "The sixth amendment withholds from Federal courts in all criminal proceedings the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel." The Johnson case did not answer all the constitutional questions involving the right to counsel in the Federal courts; but it clearly stated that, if a defendant wished counsel and could not afford it, counsel must be provided. Twenty-five years have passed since that decision was pronounced, breathing life into the sixth amendment. And what has been done bv the Federal Govern- ment to implement the decision? The answer is: very little. CRIMINAL JUSTICE ACT

In 1946 Congress recognized the constitutional mandate for counsel when the sixth amendment provision for counsel was restated in rule 44 of the Federal Rules of Criminal Procedure: "If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel." However, with the exception of legislation passed in 1960 providing for a Legal- Aid Agency in the District of Columbia, Congress has done nothing to allow compensation for those lawyers or agencies representing the poor in Federal cases. The system of appointing uncompensated counsel has placed a great burden on the shoulders of the legal profession. The profession has performed admirably through the years, but the system has proved unsatisfactory both for the defendant and his counsel. Some years ago when I was a young practicing attorney in North Carolina, I was appointed counsel for an indigent defendant in a capital case. The trial resulted in a conviction; I was awarded a fee of $12.50 by the court. After I filed notice of appeal, however, it cost me $84 for a transcript of the record. A local newpspaer published an editorial saying, in effect, that the defendant was obviously guilty and that his lawyer was only appealing because of the huge fee involved. I was elected to the State legislature shortly thereafter, and my first bill was one authorizing the State to pay for the trial transcript of an indigent defendant appealing to the North Caroiina Supreme Court. This, of course, was a State case, and the laws in North Carolina are considerably different today. But the situation I faced is analogous to that confronting many lawyers practicing in the Federal courts today. There is no provison even to reimburse counsel for out-of-pocket expenses; there are countless cases in which attorneys have borne heavy personal sacrifices; to be certain that the defendant received a fair trial. Even an accused charged with a capital offense does not have the benefit of compensated counsel in the Federal courts. The following statement from the 1961 study of the Senate Subcommittee on Constitutional Rights clearly sets forth the constitutional problem: "The Subcommittee on Constitutional Rights wholeheartedly endorses legisla- tiontdesigned to assure competent legal counsel for indigent defendants in all Federal courts. "The subcommittee believes that this is necessary to achieve full compliance with the mandate of the sixth amendment to our Constitution that 'In all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense.' "The subcommittee believes further that the right to counsel as guaranteed by the Constitution is a hollow right indeed if it is not accompanied by proper safeguards that all accused persons will be represented by adequate counsel- even those who cannot afford to pay for it." There are many examples I could cite of unfairness to the accused because of lack of funds for defense. One in particular is illustrative. It was related to a House of Representatives subcommittee in 959 by William Reece Smith, Jr., past chairman of the American Bar Association Junior Bar Conference: "[This] involves a young attorney from Philadelphia, who was appointed to represent an indigent who was unable to speak English. This particular assigned counsel states that he was practically as indigent as the defendant, and for that reason was unable to afford an interpreter in order to converse with his client. He, of course, sought the services of an interpreter through the court and eventually the Government did provide the interpreter. However, this provision was not made until the day of trial. And so for the first time both counsel and court heard the defendant's side of the story while in the courtroom in the course of the trial. "It so developed in this particular instance that there was a witness to the event who might have been of great importance in the defense of the case. This witness was not made available, could not be made available under the circumstances, and in counsel's opinion the defendant was convicted as a result of this development." This example is a startling one, but it is only one of a long list-all evidence that the constitutional guarantees are not being satisfied in the Federal courts.

YOUNG, UNPAID LAWYERS FREQUENTLY APPOINTED The accused is defended frequently by a young lawyer who either may take the case for experience or may have no yearning whatsoever for courtroom advocacy. CRI~aNAL JUSTICE ACT 53

Many judges understandably are inclined to appoint young lawyers rather than other members of the bar with crowded schedules. This is not an indictment by any means of young lawyers or the Federal judges and their procedures. Most young lawyers meet their responsibilities in the courtroom with zeal and imagina- tion. Generally speaking, the young man provides a good defense, but certainly in extremely serious matters the accused is entitled to the same defense as the person of means who can and will retain only a seasoned attorney. In addition to the constitutional problem, there is the great burden which is placed on members of the legal profession. In the 1959 House of Representatives hearings the story was told of a lawyer in Wyoming who had long experience in criminal law and was in practice by himself. He was appointed to defend in a Federal criminal case which involved 10 days and 3 nights of actual trial time, plus considerable preparation. The Government presented 114 witnesses. For practical purposes the lawyer was required to close his office for 6 weeks. As a result, he was practically bankrupted. The lawyer himself should not fear indigency while defending the indigent. This unfairness to the accused and hardship on the bar are intolerable. They are not at all conducive to the effective administration of justice. Several years ago, in considering this matter, the distingifished Chairman of the Judicial Conference of the United States, Judge Augustus N. Hand, spoke for the Conference: "To call upon lawyers constantly for unpaid service is unfair to them, and any attempt to do so is bound to break down after a time. To distribute such assignments among a large number of attorneys, in order to reduce the burden upon anyone, is to entrust the representation of the defendant to attorneys who in many cases are not proficient in criminal trials, whatever their general ability, and who for one reason or another cannot be depended upon for an adequate defense. Too often, under such circumstances, the representation becomes little more than a form." Congress not having acted to provide practical implementation of the sixth amendment, the legal profession has attempted to alleviate the problem in some instances by utilizing defender services established for State and local courts. The Legal Aid Society of New York, for example, established as a local service by private funds, will assign a lawyer to present those accused of Federal crime. But funds are so low within the local defender services that most of the 115 now existing throughout the country can barely manage the heavy load in the State and local courts, much less be expanded to include the Federal system.1

LEGISLATION IS NEEDED TO FULFILL REQUIREMENT As population expands, society becomes more complex, and the legal profession becomes more highly specialized. We can no longer expect the bar alone to implement what is a requirement under the Constitution. Legislation providing for reasonable compensation has been before the Congress for more than 20 years. Support has come repeatedly from the Judicial Conference and the American Bar Association. Both deserve praise for their tireless efforts. Every Attorney General since 1937 has asked enactment of legislation allowing compensation for counsel to represent the poor. Legislation which would permit appointment of public defenders in populous districts and compensate assigned counsel in others has passed the Senate three times-in the 85th, 86th and 87th Congresses. However, these measures have never been reported to the House of Representatives for consideration. This year, for the first time, a President has allotted a portion of his state of the Union message to this problem, stating: "The right to competent counsel must be assured to every man accused of crime in the Federal courts, regardless of his means." With this encouragement of the administration and with the whole- hearted support of the lawyers of the country, I am optimistic over the chances for passage during this Congress. On the same day that President Kennedy's message was delivered, Senator Keating, Senator Cotton, and I joined Senator Hruska in introducing S. 63, * * * a bill to provide for representation of certain defendants in the Federal courts. This is the same proposal we cosponsored last year and which passed the Senate. More recently, the President has sent to Congress a proposal which Senator Eastland introduced and Senator Hruska cosponsored as S. 1057. The same ' The National Legal Aid and Defender Association reported 115 defender services throughout the United States as of March 1963. Twelve of these are financed completely by private funds and a few others by a combination of public-private funds. CRIMINAL JUSTICE ACr measure was introduced in the House of Representatives by Congressman Celler as H.R. 4816. This proposed legislation, the Criminal Justice Act, is the product of months of study by the Special Committee on Poverty and the Administration of Federal Criminal Justice, under the chairmanship of Prof. Francis A. Allen, of the University of Michigan Law School. It differs in some respects from S. 63; however, the objectives are the same, and I am confident the differences can be resolved satisfactorily in committee.

ACT MAKES LOCAL OPTION IMPLEMENTING KEY The Criminal Justice Act provides for compensated counsel plus auxiliary defense services. Local option is the implementing key to the bill, as each Federal district may choose a method of representation tailored entirely to fit its own needs and conditions. The choices authorized are these: (1) appointing private practitioners to be paid up to $15 an hour for each individual case; (2) establishing a Federal public defender office with appointing power in the judicial council of the circuit after recommendations from the Federal court; (3) appointing attorneys from local bar associations or legal aid societies at the same rate as assigned individual counsel; or (4) providing for any combination of these. Counsel is guaranteed at every stage of the criminal proceedings, beginning with the initial appearance of the accused before the U.S. commissioner and extending through the trial, sentencing, and appeal. The plan for each district will make provision for furnishing investigative, expert and other services to assist the defense counsel in preparing and analyzing his case. These services may be employed either on an individual basis or through a defense-services agency. The proposal would apply to the defense of those persons financially unable to obtain an adequate defense. This would allow some defendants to defray part of the costs of their defense if they were able. To me, this act, and the essentially similar S. 63, present the best plan to meet an acute national problem. Their greatest asset is flexibility. In some Federal districts the crime rate is very low and there is no need for full-time defenders. In other districts the need is already being met to some extent by private agencies. In still other metropolitan districts, the crime rate is so great that only a full-time staff of public defenders could provide an efficient and satisfactory answer. The important point is that each year more than 9,000 defendants (not including those in the District of Columbia), or more than one-third of all criminal defendants in Federal district courts, are not able to provide for their defense. Congress must act for them. The proposal under consideration allows each locality to choose its own method: The choice will be up to the area judicial conference and the local district judge. This provision is designed to eliminate political interference. By the same token, politics will be absent from the choice of defenders, since the administration will have no voice in the appointments, as it does with U.S. attorneys. SOME OBJECTIONS RAISED TO PUBLIC DEFENDERS The biggest objection to our approach, as I see it, concerns the provision allowing districts to adopt a public-defender system. Many feel that placing the defense in the hands of the Government would be a step towards a police state. This danger should not be minimized. After years of unsuccessful searching, however, it appears impossible to find an effective and economical means of guaranteeing counsel other than through an organized service. Experience with long established defender organizations, furthermore, has shown their attorneys to be competent, zealous, and no more apathetic than their colleagues in the prosecutor's office. I feel certain that the local bar associations can be counted on to see that the defenders perform their duties properly. Another frequent objection is that a public-defender system would eliminate the traditional freedom in choosing an attorney. However, I fail to see how an accused individual, friendless and penniless, now has any choice. Of course, we know that he does not under the present system of appointing uncompensated counsel. Under present statutes, rules, constitutional provisions and recent court decisions, the rights of a defendant are many. If anything, it would appear from some cases that the criminally accused in Federal court today is in many ways better protected than society. For instance, under the Supreme Court ruling of 1957 in Mallory v. U.S., 354 U.S. 449, it was held that a voluntary confession of a convicted and self- confessed rapist was inadmissible as evidence because of the delay in taking him before a committing magistrate. The court held that a delay of 7 hours in CRIMINAL JUSTICE ACT

arraigning the prisoner violated rule 5(a) of the Federal Rules of Criminal Procedure, which requires that an arrested person be taken before a committing officer without "unnecessary delay". Recently in Killough v. U.S., No. 16,398, the Court of Appeals for the District of Columbia Circuit greatly extended the Mallory doctrine. In Killough the court not only used the Mallory doctrine to throw out a voluntary admission of the accused made prior to his arraignment, but extended this doctrine to invalidate an admission made after arraignment on the ground that it was prompted by the first admission, which was inadmissible under Mallory. Thus, the first confession, which the court of appeals felt was obtained in violation of rule 5(a), was deemed to invalidate the later confession, even though the second confession was obtained in full compliance with the Federal,rules and there was never an allegation by the defendant that the confession had been anything but voluntarily given. Notwithstanding the many rights of criminal defendants in Federal courts today, a defendant's financial inadequacy must not preclude his having an adequate defense, as guaranteed by the sixth amendment. Society is not well protected when an accused is convicted due to inadequate representation and is thereby embittered over our legal process. When a prisoner is released from confinement, he is worth something to himself and society only if he returns with a desire to find his place, make proper adjustments and live a productive and useful life. Until a prisoner's bitterness over an unfair legal process has been overcome, the correctional process will not work. If a poor prisoner leaves the courtroom with hate for a legal system because he rightly believes he has been defended inadequately, the chances for his rehabilitation are meager indeed. Nor is society protected when defendants are released because of a technical error in the legal process. Law enforcement officers and prosecutors strongly prefer that adequate defense be available for persons accused of crime. Chances are lessened for the overruling of convictions on error when adequate defense has been provided. In addition, most prosecutors prefer to enter the courtroom knowing that the conduct of trial will not be interrupted or prolonged by incompetent or unwilling defense counsel. Society and the defendant both are protected by the right to counsel as guaranteed in the sixth amendment. If a defendant is to take advantage of his legal rights, he must have competent counsel; in the Federal system today, such counsel is not guaranteed. The defendant's rights are useless to him if he does not know what they are or how to use them. The wealthy defendant need never fear an inadequate defense. It is now up to Congress to eliminate that fear for the indigent. In these days when our Nation is spending billions in aiding the poor of a multitude of other countries, when we are forced to spend more billions for national defense, I believe we can and must afford the cost to defend the basic rights of the poor here at home. Mr. WHITENER. He himself was an outstanding member of our Supreme Court of North Carolina and prior to that time one of the finest trial judges that we had in our State. Now, Mr. Chairman, I want to say to my colleague, Mr. McCulloch, that the plan in Ohio he has described is apparently the same plan that we use in the State of North Carolina where the presiding judge appoints counsel of the judge's choice, not the defendant's choice, but the judge's choice-where you havd an indigent defendant. At the outset, let me say this. I am somewhat wedded to that system. Perhaps because of my experience with it, I am wedded to it. During the 11 years that I served as prosecuting attorney in North Carolina's most populous district, this was used frequently. In North Carolina the judge has discretion in the compensation that counsel will receive. The judge also has discretion in reimbursing for expenses incurred properly in the preparation and defense of this indigent defendant when making a determination as to the fee to be allowed. Mr. McCULLOCH. Would our colleague yield to a question at this particular time? I am glad to note your comment on the similarity of the law in Ohio and North Carolina. In looking over your bill 3446, the exact CRIMINAL JUSTICE ACT language pertains only to reasonable compensation-I take it from what you have just said, if the committee determines that it should be amended to include the phrase "expenses," or the like, that that would be equal because your law contemplates that, as ours does, you see. Mr. WHITENER. In that connection I think when you use the term "reasonable compensation," that this is a factor which the court would have to consider if the attorney was to be reasonably compensated. If he spent a thousand dollars properly in connection with preparing for the case, and he tried the case for 3 days, it certainly would not be reasonable compensation for the court merely to consider the amount of time that the lawyer spent in the courthouse. So this is the theory under which we have operated in our State. Now, let me point this out in connection with our State, and I am sure it must be true in your State. This attorney compensation is a charge against the county under our procedure. The payment of counsel comes out of the county treasury and not from the State government. In my judicial district we had two of the four or five most wealthy counties in North Carolina, but there are some counties in North Carolina where this became a burden to the counties, because of the low revenues that they had and I have heard judges tell of county commissioners having a meeting and urging the judge to reduce the fee. This problem will not present itself in the Federal system. I just point that out as background. Mr. MEADER. Mr. Chairman. Mr. CELLER. Mr. Meader. Mr. MEADER. Mr. Chairman; as I read your bill, Mr. Whitener, you have no ceiling on the allowance that can be made for compensation to attorneys for indigent defendants. I must say our system in Michigan is quite similar. The North Carolina-Ohio system is similiar to ours in Michigan. Where there is no ceiling that I know of on the amount of compensation, the practice is not to make full compensation, the same as an attorney might charge a client able to pay, but it is rather nominal compensation. I would like to ask the gentleman's views on whether or not the bar which claims itself a profession rather than a trade does not owe an obligation to handle cases without compensation in the same sense that doctors and hospitals sometimes have to take care of charity cases and get no compensation whatsoever. Mr. WHITENER. I am not here to -attack the medical profession. I have not seen doctors come into the courthouse without some arrangement being made for compensation. Mr. MEADER. I am not speaking of testimony in cases. I am speaking of people who are injured, brought into a hospital, where the injured cannot pay his hospital bill or doctor's bill. There is an understanding in the medical profession, as I understand it, that they will not let a man die like a dog or suffer, whether he can pay or not. Canon 12 of the Canons of the Ethics of the Bar expresses my view in a sense. Is there not some obligation on the legal profession to assist those in difficulty, regardless of compensation? If we adopt a principle that the Government is going to give full compensation to lawyers, what effect does that have on the principle I have just alluded to set forth in canon 12? CRIMINAL JUSTICE ACT

Mr. WHITENER. I must say to the gentleman, that this has occurred to me oftentimes-the things that he points out. But let's look at it from another angle. I am sure that if you have ever practiced law in the State-in a State where counsel was appointed without compensation, or with meager compensation, that the results which obtained as far as indigent defendants were concerned were not what most of us would like to see. Now, in my State, when I first commenced practicing law the statute provided that counsel could be paid not more than $25. This State later amended this statute to give the court discretion. Now, when an indigent defendant was required to have counsel under the $25 limit, and I am not being critical of the courts of my State, but I observed that counsel was some boy who just got out of law school. I came out of law school in June, passed the bar in August, represented a defendant who was sentenced to die before the frost fell and was in the Supreme Court before the end of the year- first year of practice. Now, today-I do not mean that he was not adequately represented-it was a very bad case-but on retrial we were able to get the jury to agree with us. But my point is, that today in North Carolina it is, or wa- when I was the district solicitor, almost the unwritten rule with the judges that if they appointed a young fellow just out of law school that they also appointed an experienced trial lawyer in the criminal field in a capital case. This would not have been the practice before the discretionary statute was passed and I know that we do not want our profession socialized and we do not want to make it a trade as the gentleman has called it. But at the same time, we are confronted with a situation where we have no choice but to have counsel for our indigent defendants. The law has been-not changed-but certainly written by the Supreme Court of the United States in such a way that we do not have the same situation that we had in 1937 when I got my law license. And I do not think we have any choice about assignment of counsel for indigent defendants. The question is, I think, how do we go about it? How do we go about it? Now, let me say this. From the outset, over the years, I have been one who has recoiled at the idea of a public defender systeni. But I have made a study of the chairman's bill and I believe that it is a reasonable approach to it, and if you would permit me to sort of go along with some of my ideas and we can discuss, if you do not mind Mr. CELLER. Before you do, I want to tell you my experience when I was a trial lawyer assigned by a county judge- and the indigent defendant was accused of larceny. I knew very little about criminal law and never tried a case before, and we were assigned a table and the district attorney was on one side of the table-1 with my client- my indigent client on the other side of the table and my client, who was an Italian hardly could speak English, said, "Mr. Celler, on the other side of the table there are two men; while the district attorney stands up and speaks the other man thinks. When you stand up nobody thinks. There is nobody with you." ,Mr. WHITENER. In connection with this business of representation of defendants, during my time as prosecutor I saw people who were CRIMINAL JUSTICE ACT able to employ counsel who did not use very good judgment about their counsel. And I know that every man here who has been a prosecutor has had cases, when he, on the side, was coaching his adversary because of his interest in seeing justice done and trying to prevent some unfortunate result. I have had private prosecutors employed by families where I was prosecuting, attorneys who were supposed to be helping us and without them I think we would have had a conviction, but the inexperienced attorney they had employed to help us sometimes ruined our lawsuit. So we are not dealing here with exactitude. \Mr. MEADER. Would the gentleman agree with me that this colloquy has demonstrated that it is impossible for anyone to pass judgment on competent representation, that is a subjective matter, and when we pass to the point of saying that this lawyer was incompetent, inexperienced, and does not give adequate representation, we are engaging in hopeless exercise and futility? Mr. WHITENER. M\r. Meader. The best evidence I can give of that-I occasionally would stop by the State central prison when I was prosecutor and I would look at the register it would seem to me as though half of the prisoners down there came from my judicial district. I had a populous district and a metropolitan district and this concerned me. So I said to the warden one day, "What do they say about me, these prisoners?" You wonder if they all carried an ax for the prosecutor. He said, "You would be surprised. They are critical of the defense attorneys always. They never mention you." So the poor devil that is represented and convicted as a defendant, whatever the ability of his lawyer is concerned, he does not wind up standing'very high with his client if the client goes to the penitentiary. He takes the position that the prosecutor did his duty and his lawyer was too dumb to look after the defendant. But may I proceed with the bill and make some suggestions which have occurred to me? On page 2 on line 6, I would suggest that after the word "representation" we should insert the words, "by counsel" and then in line 9, strike the words, "Representation under each plan shall include counsel and such investigative, expert, and other services necessary to an adequate defense." Now, you will find elsewhere in the language of the bill a provision for the filing of affidavits specifying the time, expenses and so forth incurred in connection with the preparation of the defense of the case. It is my judgment, having lived with criminals as a prosecutor, for some time, that, this language in the bill will result in the hardened criminal who will be familiar with the statute to come in and demand all sorts of extrayagant investigative and expert inquiries because the language is so written into the bill. Now, I think that if a lawyer is representing a defendant, if that lawyer feels that further investigation is needed, that the bill without this language would give to the court authority to provide for that sort of investigation. Mr. CELLER. M\ay I refer you to page 4, line 10 and following, which reads as follows- Mr. WHITENER. I am going to get to that a little later, if you do not mind. CRIMINAL JUSTICE ACT

Mr. CELLER. Apparently that checkmates what you say because the plan must contain provisions for furnishing investigative experts and other services necessary to adequate defense determined by the U.S. commissioner or the court after appropriate inquiry to be furnished. Mr. WHITENER. I am going to suggest something about that, too, when we get to it. Now, that is my main point on that. We get down to the bottom of the page and we talk about the approving of a plan for a district: that the judicial council of the circuit court will be the approving authority. I think this is a good approach, as has been said earlier by the Attorney General. It gets away from the executive department appearing on both sides of the case, so to speak. I would point this out-that I think it should be made abundantly clear that each district would be dealt with by the judicial council as a separate entity. I point that out for this reason: In my Federal judicial circuit we have Maryland, Virginia, West Virginia, North Carolina, and South Carolina. The public defender system may be ideal in Baltimore, Md., the district in which Baltimore is situated. It is my considered judgment that it would not be the best for the western district of North Carolina. Maybe in the middle district or the eastern district it would be. But I think that it ought to be made abundantly clear that the conditions within a particular district should control and not let this judicial council take the easy way out and just say, "For our circuit we are going to have this system." Mr. CELLER. Will the gentleman yield? As the bill is drawn, the circuit could provide for the public defender in Maryland, and assigned counsel or legal aid society services in your State. It would not have to be uniform throughout the circuit. Mr. WHITENER. No question about that. But I just say that it should be as a matter of legislative history made abundantly clear, if the committee agrees with me, that the judicial council in each of the circuits should not take the easy way out and say that this is the plan for our circuit, but they should be enjoined by language in the committee report or otherwise, that they should make a study of the particular district. Now, we get over to page 3 of the bill. On line 8, page 3, and in other places in the bill, you have, In every criminal case in which the defendant appears without counsel, the U.S. commissioner or the court shall advise the defendant that he has the right to be represented by counsel and that counsel will be appointed to represent him if he is financially unable to obtain counsel. I think that is good;, but, you, on page 13 say, the U.S. commissioner or the court, if satisfied after appropriate inquiry that the defendant is financially unable to obtain counsel, shall appoint counsel to represent him. Now, gentlemen, I do not think that the U.S. commissioner ought to be appointing counsel. Mr. Meader has raised this question of maintaining the position of the legal profession. Now, in the city of New York-perhaps your U.S. commissioners are all members of the bar. I do not know about that. But in my area a U.S. commissioner may be a local justice of the peace in the county. He may be a man that runs a blacksmith shop who has a good character and reputation 60 CRIMINAL JUSTICE ACT and that the Federal judges have decided would be all right as a U.S. commissioner, because the judge says, "well, they do not have any business out of there anyway." I just do not think that a layman serving as a U.S. commissioner should have the authority to appoint counsel to represent an indigent defendant. I think that it is very simple for the U.S. commissioner or the other Government people involved in the case-U.S. attorney-to call the Federal district judge and point out the facts. You know, I am sure, that the procedure, at least in my area, is that a commissioner does not issue criminal process until the U.S. attorney's office has approved it. No doubt that office drafted the charge against the defendant, also. So I do not think you are creating any burden to say that assignment of counsel should be done by a judge instead of a commissioner. Now, someone has raised the question here that under the assignment of counsel without a public defender system, that a judge may be inclined to favor certain attorneys. Well, gentlemen, I do not think that is nearly as likely to happen as it would be likely to occur if a U.S. commissioner in a county-in an area-did the assigning. Mr. CRAMER. I think you have made a valuable contribution in this respect, Mr. Whitener. I think the court ought to make a determination as to who the counsel should be and certainly should make the determination as to who is entitled to counsel. It is a factual finding that has to be made with regard to whether a person is "financially unable to obtain counsel." Mr. WHITENER. If you read the last sentence you find it says: The U.S. commissioner or the court shall appoint separate counsel for defendants who have such conflicting interests that they cannot properly be represented by the same counsel, or when good cause is otherwise shown. Mr. CRAMER. So the commissioner is going to decide whether good cause is going to be shown. Mr. WHITENER. I have known U.S. commissioners who were good men, honorable men, but they would not, by reason of lack of training, be able to make this determination. Here is another thing: Frequently this conflict of interest develops after the initial assignment of counsel. I have seen this happen many times where you have codefendants. The court would appoint a lawyer to represent them and after making his investigation the lawyer comes to the judge and says, "Look, I can't represent both of these men because their interests are not the same and we think they need additional counsel." I do not believe that the U.S. commissioner should be left in this subsection of the bill, except in lines 8 and 9 where he has to advise the defendant that he has a right to be represented by counsel and counsel will be appointed to represent him. I do not think that instructions from the U.S. commissioner would be out of line. On the same subject, page 4, the last sentence in that subsection says again, The U.S. commissioner or the court may, in the interests of justice, substitute one appointed counsel for another at any stage of the proceedings. So this U.S. com nissioner, a layman, would say, "I am appointing you to represent the defendant," and for no reason at all, the next day he comes back and calls Mr. Cramer in and says, "You are a fine lawyer, but I decided in my discretion I want M\r. Foley to represent CRIEVNAL JUSTICE ACT 61

this defendant." I just do not think a U.S. commissioner ought to have this authority. Mr. FOLEY. On that point, Mr. Congressman. Since the defendant under case law now is entitled to representation in every stage of a criminal proceeding, what would be the alternative, to postpone the preliminary hearing and apply to the district court judge to determine the indigency question and then appoint counsel? Mr. WHITENER. I can only tell you that in the procedure we have in North Carolina, in the State courts, that anyone bringing this to the attention of a superior court judge, the highest trial court in our State, that that judge then appoints counsel, if he finds that he should, whether this defendant has had a preliminary hearing or not. We do not entrust justices of the peace with the authority to appoint counsel. Mr. FOLEY. In this case here, you have the U.S. commissioner merely postponing the preliminary hearing so that the question of indigency would be determined by the court instead of the commissioner. Mr. WHITENER. That is exactly right. But you must remember this, that generally, in a Federal prosecution, the U.S. attorney's office and the Federal Bureau of Investigation or the other investigating agencies, unlike the State courts in my State where any citizen can prefer a charge, usually know a great deal about that defendant, about his operations, before he is ever served with a process. I do not think that any U.S. attorney's office, or any law enforcement agency of the Federal Government would say that it would present, generally, any burden to have the U.S. district judge make this decision. I think that you are going to get in real serious danger if you let the U.S. commissioner have this broad authority. Mr. FOLEY. You have a practical problem, though. For instance, you take the State of Wyoming, where you have 23 commissioners spread out all over from where the judge sits, because it is a one-judge court in Wyoming. Mr. WHITENER. The real practical problem you have here is whether the defendant is adequately represented. I do not think this system will necessarily say that a Federal appellate court would not send the case back if counsel appointed by the court or the public defender or anyone else does not adequately represent the prisoner. Mr. FOLEY. Suppose you had a panel set up by the judge and submitted to the commissioner and the commissioner had a choice. Mr. WHITENER. He is not looking at the panel, he is looking at the case. We just had one sent back to my home, by the fourth Federal circuit court of appeals on the ground that the defendant was not adequately represented by counsel, even though he had a lawyer-and a good lawyer. Mr. CELLER. May I ask one question? Mr. WHITENER. They looked at the facts in the case. If you let U.S. commissioners do this you are going to run into danger of un- doing what you are trying to do with this bill. Mr. FOLEY. But you have a panel selected by the judge himself, as qualified lawyers. Mr. WHITENER. The bill says the U.S. commissioner. Mr. FOLEY. I mean as a suggestion, as an alternative. If the judge set up a panel for each commissioner to go out there, if Wyoming 21-022---63----5 CRIMINAL JUSTICE ACT with its 23 commissioners and suppose we had 23 panels selected by the district judge, the only judge in the State, and then the commissioner would select maybe 1 name out of 5 or 6. Mr. WHITENER. . do not think you will find the legal profession will ever buy that. Mr. CELLER. Are you in favor or opposed to H.R. 4816? Mr. WHITENER. I would say I was-I would say it was a good bill, generally, but that these things bother me and this is why I left the bill that I introduced to discuss this one. I think in view of the situation that we are in that we must have adequate legislation now to provide for the representation of indigent defendants, and I think that this bill is basically a good bill, but it can be made a better bill, in my judgment, by making some changes. Mr. CRAMER. May I ask a question, Mr. Chairman? Mr. CELLER. Mr. Cramer. Mr. CRAMER. Do I understand that you are abandoning your bill, H.R. 3446, in favor of the chairman's bill, or do you prefer your bill? Mr. WHITENER. Well, my bill does not go far enough because it just says where counsel is assigned. H.R. 4816 takes a step which I think the court's interpretation of the Sixth Amendment requires now that counsel must be assigned to an indigent in all criminal cases unless there is a waiver. Mr. CRAMER. Do you favor setting up a public defender system as the only alternative by district? Mr. WHITENER. Not in my judicial district. This bill may be the very thing for St. Petersburg, Fla., New York city, or Baltimore. I just do not know. Mr. CRAMER. We have a public defender in my county-county public defender. This bill would permit your district to set up a full-time public defender system with full pay, full-time services of investigators-one specific public defender and so many assistants as the court decides. Would you favor that in your district? Mr. WHITENER. If you let me go on with my views on the bill we would have some questions answered which apparently are in the minds of the committee members. Mr. CRAMER. I just want to know whether you favor the public defender concept. Mr. CELLER. The gentleman does not have to answer it. Mr. WHITENER. I will later. Let me point out some of the things. Mr. MCCuLLOCH. Mr. Chairman, may I interrupt the witness to ask if he has had the time to study H.R. 5889 and H.R. 6250. Mr. WHITENER. I have not. But I will say both Mr. Poff and Mr. Moore are learned lawyers. I know that any creature of their minds would be, generally, acceptable to me, but I am not sure about these particular ones. Line 10 to line 20, I think that should be stricken for the reason that I mentioned earlier about investigating, expert and other services, because you will notice where the services authorized-where the district court authorizes, I do not like the U.S. commissioner authorizing those services, and that ought to be changed, shall direct payment of reasonable compensation to the person who rendered them. That seems to be all the language you need to take care of paying for these extra services and would avoid, in my judgment, unreasonable demands by knowledgable hoodlums. I am not talking now about the CRIMINAL JUSTICE ACT 63 man that comes into the criminal court one time in his life. I am talking about the professional criminal. Then it says the claim shall be supported by an affidavit specifying the time expended, services rendered, and expenses incurred on behalf of the defendant, and the. compensation received in the same case from any other source. So you do not need, in my judgment, the language that I have here- tofore objected to. And you will note in the "Private attorneys" section on page 5,. that you have similar language which says that the claim shall be. supported by affidavit setting forth time expended, services rendered,. and expenses incurred, which would be expert witnesses and all ot these other expenses. Now, getting to the Federal public defenders section, pages 5 and 6, I have serious doubt about the wisdom of permitting the Federal public defender setting up full-time or part-time investigators, experts, clerical, and other personnel in connection with this. I think you can build another bureaucracy and that these services can be had without setting up what we might loosely call a counter FBI service in this country. That is what you may wind up with and I would seriously doubt that is advisable. XM'r. 'MfcCULLOCH. Mr. Chairman, I would like to comment there. Of course, that is what is going to happen under this legislation. It has happened under every type of enabling legislation similar to this in a hundred years. And it is almost without limitation and will be in this case. Mr. CELLER. Do you have any proof of that, Mr. McCulloch? Mr. MCCULLOCH. I do not know of any enabling legislation that has been passed since I was in Congress which did not expand into- Mr. CELLER. I mean the characterization given by Mr. Whitener of a counterespionage. Mr. WHITENER. Counter FBI, I said. Mr. McCULLOCH. I would accept the implication. And, Mr. Chairman, since this question about the growth of bureaucracy and the cost of the Central Government which has now about two and a half million employees, I can point to no other example that has greater impact than the Department of Health, Education, and Welfare which was created within the last 10 years. So my state ment is not intended to carry any implications except the implications of fact. Mr. WHITENER. May I say this? Somewhat in line with what you have just said. in making these statements that I am making-- Mr. CELLER. You cannot expect, when you create a bureau, that the bureau will stand still and must disregard the increase in population, increase of trade and commerce, increase in connections with all of the rest of the world. Certainly, bureaus must expand. They cannot help expanding. They expand because of changing conditions and the health, education, and welfare of those changing conditions must expand. 1 think we Members of CongTess have control over that situation We control the purse strings. We can say what money shall be appropriated and to what degree they shall be appropriated for those various agencies. We can curtail them if we wish. Mr. MCCULLOCH. Yes; I certainly give praise to that part of your statement. There seems to be a reluctance to do it, however. When 64 CRIMINAL JUSTICE ACT a bureau is created we expect it to implement law which we pass and that does not necessarily mean that it should expand inordinately. Mr. WHITENER. May I say this-and I know I am holding the committee. My point in mentioning that was not to be critical of anyone, but to say that I do not believe that it is a good idea to set up-have the Federal Government in the Federal courthouse-having one agency trying to represent the Government and the other one fighting the Government, so to speak. I do not think that the Constitution says that any defendant has a right to have the tax- payers provide his evidence. He has certain constitutional rights to present his case and have assistance in presenting it. But I do not know how much further the court is going to require us to go. I do not think they are ever going to say that you have to have a full-time investigative staff set up and expert witnesses. Would this include medical experts, engineers, accountants, nuclear physics experts? How far are you going to go with this term "expert"? Mr. CELLER. Suppose you were assigned to represent an indigent defendant who cannot speak English and you have to get an interpreter. You don't have the money and you want to advance the money yourself to pay for the interpreter. If the law does not permit the expenditure for the hiring of an interpreter, how could you defend that person? Mr. WHITENER. We have had that problem in my State-not in in my particular area, but at the Cherokee Reservation area. As long as I have known anything about the courts-the court had provided interpreters, not only for the defense counsel, but for the presentation of the evidence, and in my experience I have tried-- Mr. CELLER. Supposing it is a language for which there is no interpreter in your State? Mr. WHITENER. I have tried cases where we had deaf mutes as witnesses or defendants and we always-at Government expense- provided interpreters for them. I do not think this is unusual- the Government is doing it now. Mr. CELLEP. Is that not Government expense? Mr. WHITENER. That is so. That is right. But they are not full-time experts-full-time interpreters on the payroll of the Govern- ment. That is my point. Under this provision the public defender may also employ full-time or part-time investigative, expert and clerical and other personnel necessary for the efficient performance of his duty. I do not know how far you go with this word "investigative" and "expert" help. You are talking there about a full-time list of people. But may I conclude by saying this: I think that taking into account the decisions of our courts, our present situation, that we must have legislation of some nature dealing with this problem. It seems to me notwithstanding what I have said with regard to certain details of this legislation, that in its broad outline, H.R. 4816 constitutes about as reasonable a beginning point as we could have in a legislative proposal dealing with this important subject. I commend the chairman and the others who have brought it forth. When I have recommended changes and made suggestions which may be interpreted as evidencing hostility toward the legislation, I would want to clarify the air and say that I was merely trying to be helpful. I have been interested in this subject, and I think that CRIINAL JUSTICE ACT contrary to what one of our colleagues said earlier in talking to the Attorney General, that one of the most attractive features of this legislation to me is the lack of uniformity. Because I do not think that judicial districts in our country are uniform in their makeup and in their nature. While personally, as I said at the outset, I lean toward the idea of the judge appointing counsel from among the bar of his district without a public defender's office and without these other things, at the same time, I realize that when I say that, that this comes from the environment in which I was raised and in which I have practiced law for these years. You gentlemen, such as the chairman of this committee, and Mr. Lindsay, who come from a metropolitan center, must look at it in the light of your experience and what is best there. If you, in your judgment, feel that the public defender system is a necessity for meeting the peculiar problems of a metropolitan district, I do not think that coming from the type of judicial district that I live in that I should say you are absolutely wrong and that my way is the only way. I agree with what the Attorney General said earlier, that if we are going to take the attitude that it is going to be our way or no way, or if any of us on the committee take that attitude, we are not going to have legislation. It seems to me that the members of the committee, and other interested people-judges, lawyers, and laymen- owe a duty to come in and give their views upon the legislation. Whether we agree on every detail or not, perhaps out of this exchange we can come up with legislation which will become the law of the land and will meet this problem which is upon us, of guaranteeing to indigent defendants that they will have adequate representation. Mr. MCCULLOCH. Mr. Chairman, I would like to ask this question: Might I sum up what you have said insofar as I am concerned, by saying that you would not be unhappy if the compromise that was finally brought out by this subcommittee was in general the North Carolina-Ohio plan as set forth in the Moore bill and the Poff bill? -Mr. WHITENER. I will have to say in all honesty, I could support that with considerable enthusiasm. But at the same time I would not want to be understood as saying that if Mr. Lindsay and Mr. Celler and these other men whose experiences have been different from mine have an argument which they can support for a different position, that I could very easily go along with them, too, because I think we must have-we are dealing here with a national problem. Conditions are very diverse and this bill, as it was written, embodies the position of the Ohio and North Carolina provision, so we would not have any complaint about that portion of the bill. It is just a question, it seems to me, as to whether you and I are going to be able to accommodate our thinking to the broader experience of some of our colleagues in different types of districts. I, for one, am perfectly willing to try to accommodate my thinking to what I am satisfied, or what I may later be satisfied with, is to the best interests of the whole country. Mr. CELLER. Thank you very much. Mr. KASTENMEIER. Mr. Chairman. Mr. CELLER. Mr. Kastenmeier. Mr. KASTENMEIER. Mr. Chairman, I just want to compliment our colleague on the helpful statement, especially the item of whether or not Commissioners should be empowered to do what they would do under this bill. I think by raising this question you have raised a CRIMINAL JUSTICE ACT question the committee will have to direct itself to-direct its attention to and just in general, I think your willingness to try to understand and see what other judicial districts' problems might be-I think that is of enormous help to the other members as well. Mr. WHITENER. This is the big problem we have in so many areas of legislation in this country of ours. The greatness and size and its diversity and the various geographical areas present problems to us which very few nations in the world have. I may say to the gentleman, that if this subcommittee reports out this legislation without removing the reference to the U.S. Commis- sioners in those places I have mentioned, without any rancor or bitterness, when we come to the full committee, I will offer those amendments and we will then get the view of the full committee. I think if we all do our best we will come out with satisfactory legislation. Mr. CRAMER. Mr. Chairman. I just wanted to comment-I am not going to take up a lot of time of the committee. There are a lot of questions I would like to ask the gentleman. But the question asked the Attorney General about uniformity was not a plea on my part for uniformity. But that is the plea often used by the Attorney General and others to justify Federal action in certain instances. They appear to be abandoning this approach in this instance and that is what I want to get on the record. Mr. WHITENER. I would not be unhappy with the uniformity if they would take my system. Mr. CRAMER. That is what I am talking about. You might get saddled with the public defender system. Mr. WHITENER. If it is going to be uniform with some system I would prefer my choice of system. If not, I would at best like to see the Ohio-North Carolina plan included. Mr. McCULLOCH. Then the compromise will have your support, I take it. Mr. WHITENER. Yes, a reasonable compromise would. That is right. Mr. CELLER. Thank you very much. We will hear from our colleague, Mr. Poff, of Virginia.

STATEMENT OF HON. RICHARD H. POFF, A MEMBER OF CONGRESS FROM THE STATE OF VIRGINIA

Mr. POFF. Mr. Chairman, members of the committee, I appear to testify in support of the bill I offer, H.R. 6250, as a possible substitute for the public defender bill, H.R. 4816. I shall not undertake to analyze the detailed contents of the public defender bill. As drafted, it is perhaps more reasonable in its mechan- ical approach than the original proposal. I shall attempt only to analyze the philosophical concept involved. Please do not think that I challenge the moral involved. The accused who is deprived by reason of financial incapacity of competent counsel is deprived of total justice (a phrase which I consider more meaningful that Mr. Justice Black's phrase, "equal justice," as used in Griffin v. Illinois), and it is incumbent upon the Congress, and especially upon the members of the Judiciary Committee, to make provision for total justice. The present system, which utilizes the CRIMINAL JUSTICE ACT 67 noncompensated services of court-appointed counsel, is deficient. That system must be improved. However, returning to the question of the philosophical concept, I am not convinced that the public defender approach would achieve an improvement over that system. Indeed, I fear that that approach might create more problems than it would solve. It has always been a cardinal principle of Anglo-Saxon jurisprudence that the prosecutor and the judge shall not be combined. If, in the perfect protection of the rights of the accused, this principle has any validity, then surely there should be no combination among the judge, the prosecutor, and the defender. Undoubtedly, the administration bill intends no merger of the three. Nonetheless, there is a degree of integration among the three-a mutual affinity-which cannot be ignored. Each of the three is a part of the Federal Government. Each draws his salary from the Federal Government. Each is appointed by some official or officials in some branch of the Federal Government. The tenure of each can be terminated by his superiors in the Federal Government. Human nature being what it is, each feels that he owes some allegiance to the Federal Government, an allegiance which, although individual, is common to all three. While it may be argued that the functions and responsibilities of each are different from each of the other two, and while we may assume that each individual in every case will be a man of integrity and conscience, the common identity remains, the human equation obtains, and the danger which that combination en- tails must be acknowledged. The indigent accused who is arrested by the Federal Government, prosecuted by the Federal Government, judged by the Federal Government, and defended by the Federal Government can never be entirely sure that the treatment he receives from the moment of his arrest to the day judgment is pronounced is total justice, particularly if the crime with which he is charged has political overtones. Mr. CELLER. In either case where you have a public defender, you have, in a way, the Government on both sides. Mr. POFF. Respectfully, I disagree. There is no parallel. In the case of the assigned counsel, the first allegiance is to the legal aid society or the local defender organization which he serves and which makes him available to the court for assignment. In the case of the appointed counsel, the first allegiance is to the man's own personal profession. His first allegiance is to his client and to the advance- ment of his own career. On the other hand, the public defender's first allegiance, consciously or unconsciously, may be to the Federal officials who gave him his job. Mr. CELLER. If the public defender acts in any untoward way or leans one way or another the court itself can change him and remove him from office. Mr. POFF. It would depend, of course, upon what plan the judicial council in which that particular district is located had adopted. 'Surely that would be true if the judicial council had selected some combination of the three alternatives, but if that judicial council had selected the local public defender system alone, that would not be possible on a case-by-case basis. Mr. CELLER. If it-if the assigned counsel system is as grand and glorious as you think, I don't think any judicial circuit would select a public defender then, but they should have the choice. 68 CRIMINAL JUSTICE ACT Mr. POFF. I repeat. I respectfully disagree with the chairman. Now, if this criticism of the philosophical concept of the public defender approach is valid, then how can the present system be improved? What alternatives are available? Now, the alternative which I suggest is one which has been used widely and effectively in the courts of most of the States of the Union. That alternative is spelled out in H.R. 6250. That alternative, which is similar in approach to a nmnber of other bills now pending before this subcommittee, one of which was offered by my distinguished colleague, Mr. Moore, adopts much of the language of the administration bill. In essence, my bill authorizes the payment of compensation to attorneys and investigators appointed or assigned by the court to defend an accused who is financially unable to finance his own defense. Specifically, here is what H.R. 6250 does: In any case where the indigent defendant requests counsel (or more accurately, does not waive counsel), the U.S. Commissioner or the court is required to do one of two things, namely, appoint counsel of his own choosing, or assign a counsel who is made available by a bar association, legal aid society, or other local defender organization. I am impressed with the point which the gentleman from North Carolina made and I would recommend that if my bill is considered as a possible substitute, the words "United States Commissioner" should be stricken in all those parts where it authorizes- Mr. CELLER. Where is that? Mr. IPOFF. On page 2, line 5, strike the words, "United States Commissioner". On line 10, strike the words, "United States Com- missioner". On line 1, of page 3, strike the words, "United States Commissioner." On line 23 of page 3, strike the words, "United States Commissioner or". On page 4, line 2, strike the words, "United States Commissioner, or". On line 4, strike the words, 'or the district court in any case in which the United States Commissioner authorizes them". Now, as required in the administration bill, such counsel will represent the accused at every stage of the proceedings from the initial appearance through appeal, and the court will have the power to terminate the appointment or assignment or substitute one counsel for another as the interest of justice may dictate. Again, as provided in the administration bill, upon a claim supported by affidavit, the court can authorize the payment of compensation to the appointed counsel or the organization which has furnished the assigned counsel. Unlike the administration bill, however, H.R. 6250 makes a distinction between the fee paid for court practice and the fee paid for office practice. For the fornier, the court can authorize compensation up to $15 per hour, and for the latter, up to $10 per hour. All other features of the compensation provisions are identical with those of the administration bill. H.R. 6250 also recognizes, as does the administration bill, that total justice for indigent defendants requires the court to make available to the accused investigative, expert, and other nonlegal services necessary to an adequate defense. For such services, the court can authorize payment of "reasonable compensation" based on a claim supported by affidavit. It is, of course, impossible to make any reliable cost comparison between the administration bill and H.R. 6250. In each case, costs CRIMINAL JUSTICE ACT would depend upon the degree of utilization, and the degree of utilization would depend in some measure on the number of defendants who elected to waive counsel. In attempting to make a comparison, we can neutralize one cost factor; under both bills, the cost of nonlegal services would likely be the same. But with respect to other cost factors, a distinct difference is involved. Let us assume that, under the administration bill, half of the 92 judicial districts in the country elected to appoint one public defender and one assistant. The average salary for the defender (based on the U.S. attorney's average) would be $17,000 and for the assistant $9,000, making a total of $26,000 per year. The annual salary cost for the 46 districts, not counting civil service fringe benefits, would be $1,196,000. This estimate makes no allowance for office space, library, office equipment, stationery, supplies, telephone, penalty mail or stenographers. Neither does it take into account the fact that all of the 92 districts, including those which have public defenders, may incur additional expense for compensation of appointed or assigned counsel. It is obvious that, not counting the cost of nonlegal services, the cost of the administration bill, when only partly utilized, would be counted in the millions of dollars. On the other hand, the cost of H.R. 6250, excluding the cost of nonlegal services, would be counted in the thousands. On an annual- Mr. CELLER. What makes you say only in the thousands? Mr. POFF. I am about to come to that point, Mr. Celler. As a matter of fact, we have some figures put in the record this morning where they would be in the main-the various districts-the top cost would be, I think $3,500,000. If the option is in favor of an assigned counsel, legal aid society, in the majority of districts, it wouldn't be anywhere near $3,500,000. It would be far less than that and your cost for assigned counsel would be of consequence too, I should imagine. I was about to suggest, as the Attorney General testified this morning, on an annual average, 10,000 defendants request a court- appointed attorney. Now, if we assume that each attorney would spend 1 hour in his office and 1 hour on each of these cases, the $25 fee would amount to $250,000 a year. Of course, in a complicated felony case, the time expended and the cost involved might be substantially greater than the average, especially if appeals are involved. However, it is equally true that in many cases, if not most cases, less than an hour of courtroom practice and less than $15 in fees may be involved. In any event the office and secretarial expenseincidental to the public defender approach would not be involved in the approach offered by H.R. 6250. Now, Mr. Chairman, I have and would like to offer for inclusion in the record, subject to the chairman's approval, some information bearing upon a point raised earlier in the hearings. I believe you will find from this information that altogether there are some 92 legal aid or local defender organizations supported by State and local funds in the United States and in addition there are about 11 such organizations financed by private funds. The document which I am offering is one compiled by the National Legal Aid and Defender Association and is entitled, "Statistics of Legal Aid Work in the United States and Canada, 1961." Much of the information in this document pertains to civil cases and therefore would be irrelevant to this hearing. But, 70 CRIMINAL JUSTICE ACT in order to understand those parts which are relevant, I think it would be important, if the chairman agrees, to incorporate the entire document in the record. Mr. CELLER. You have the right to put it in the record. Mr. POFF. Mr. Chairman, under these circumstances, and bearing in mind the amendment to my own bill which I suggested, it would be my hope that this subcommittee might consider H.R. 6250 or some other modification thereof as a possible substitute for the bill which is the subject of these hearings.

STATISTICS OF LEGAL AID WORK IN THE UNITED STATES AND CANADA, 1961 On the following pages statistics are presented of the number of new cases handled, the population served, and the gross cost of operation of all known legal aid organizations submitting service reports for 1961. Figures are for the calendar year of 1961, unless another period is listed specifically. Figures do not give the complete picture and cannot be made the sole basis of comparison of legal aid services. The existence of such community resources as small claims courts, domestic relations courts, and wage collection facilities, affect the types of cases handled and the services required of legal aid offices. Local circumstances are responsible also for wide variations in operating costs: offices which operate with only voluntary lawyers (designated by the abbreviation "Vol.") are not comparable to those with salaried legal staffs. Among defnder offices there is variation as to what constitutes a case for the purpose of statistical reporting. Summary of legal aid facilities

Dec. 31, 1961 June 30, 1962

Offices with paid staffs ------141 143 Societies ------93 95 Bar association offices ------22 22 Clinics ------13 13 Public bureaus ------5 5 Departments of social agencies ------8 8 Offices with volunteer staffs ------90 93 Societies (vol.) ------28 28 Bar association offices (vol.) ------61 64 Departments of social agencies (vol.) ------1 1 Volunteer committees ------129 126 Defender organizations ------110 110 Public ------92 92 Private ------11 11 Private-public------7 7

NoTE.-Information from Pderto Rico is included in this summary; the Free Legal Aid Clinic of the Women Lawyers' Association of the Philippines (Manila) is not included. The summary of Canadian facilities is set out below. The volunteer committees and law school clinics included in the above figures are those which provide legal aid service directly to clients. In addition, there are a number of law school clinics which assist established legal aid offices, and an uncertain number of bar association committees engaged in the study or promotion of legal aid work. CRIMINAL JUSTICE ACT 71

Recapitulation, 1961

New cases Gross cost handled of operation

Legal aid organizations in the United States and Puerto Rico civil cases: 153 offices reporting number of cases and gross cost of operation ------340, 006 $3, 303,168 78 offices reporting cases only ------21,048 7 defender offices reporting civil cases (operating cost included in gross cost reported below) ------21,625 Total civil cases ------382,679 3,303,168 Defender organizations criminal cases: 75 offices reporting number of criminal cases and gross cost of operation- 133,819 2,652,396 17 offices reporting cases only ------7,900 1 office reporting costs only ------2,175 Total criminal cases ------141,719 2,654,571 Total civil and criminal cases ------524. 398 5,957,739

Analysis of receipts from community chests and bar associations

Amount Percent of gross cost

153 civil offices reporting coa of operations------$3,303,168 100.00 100 civil offices reporting receiving funds from commtmity chest or fund, including funds of greater New York and Long Island ------1,832,807 55.31 83 offices reporting receiving funds from bar associations or attorneys ------490,398 14.80

Number of cases and gross cost of operations- Comparison 1960 and 1961 totals I

New cases handled Gross cost of operations

Number Percent Amount Percent

Civil: 1960------366,607 -$2,925,796 ------1961 ------382,679 ------3,303,168 ------Increase, 1961 ------16,072 4.4 377,372 12.9 Criminal: 1960------115,188 ------2,052,566 ------1961 ------141,719 ------2,654,571 ------Increase, 1961------26,531 23.0 602,005 29.3 Totals for civil and criminal: 1960 ------481,795 ------4,978,362 ------1961 ------524,398 5,957,729 ------Increase, 1961 ------42,603 8.8 979,377 19.7

1 1960 figures for civil cases based on reports from 227 legal aid offices and 6 defender offices; 1961 figures from 231 legal aid offices and 7 defender offices. 1960 figures for criminal cases based on reports from 70 defender offices; 1961 figures from 93 defender offices. 72 CRIMINAL JUSTICE ACT

CANADA Summary of legal aid facilities 1961 Offices with paid staffs ------.------2 Societies -----...... ------1 Department of social agencies------.------1 Offices with volunteer staffs ------1 Bar association offices (volunteer) ------1 Volunteer committees ------6 Defender organizations - .... ------...... - 2 Private (both offices handle civil and criminal matters and are included in the civil total above) - 2 RECAPITULATION, 1961

New cases Gross cost of handled operation

Civil cases: 2 offices reporting cases and costs _------6,930 $14, 700 4 offices reporting cases only ------2,037 ------

Total civil cases ------8, 967 14, 700 Defender organizations criminal cases: 2 offices reporting cases------2,003 ......

Total civil and criminal cases ------10,970 14,700

ANALYSIS OF RECEIPTS FROM COMMUNITY CHESTS AND BAR ASSOCIATIONS

Amount Percent of gross cost

2 offices reporting host of operations ------$14,700 100.00 N one reporting receiving funds from chests ------...... 1 reporting receiving funds from bar associations or lawyers------4,000 27.21

Civil section

Amount from- Cases Type of per State and city lopnla- organi- New 1,000 Gross Bar tion I zation I cases of cost Chest asso- popu- or ciation lation fund 3 or attorney

ALABAMA

Birmingham (December 1960 to Soc ------995 1.57 $12,516 $12,547 ------November 1961). F lorence ------Vol. Soc ------Mobile (December 1960 to Novem- BA. Off. Vol-- .22 ...... November 1961). M ontgom ery ------BA. Off. Vol ...... -.-. I.....-.I.-I-

ARIZONA Phoenix ------Soc ------1.6151 2.43 14, 905 1 8, 000 $6,900 Tucson ...... BA. Off ------1.527 5.74 13, 403 9,457 3,349 *Window Rock ...... Soo ------. -.-- ---.I.--. -. --.I.- --- . -..I.------.

ARKANSAS

Fort Smith ...... 67 Vol. Soc ...... 12 .18 ------I ------..... Little Rock ------.------243 Soc ------.... I -----....--...... I......

CALIFORNIA

*Alhambra (February 1961 to Decem- BA. Off. Vol-- 107 .54 5,117 664 1,800 ber 1961). Bakersfield ...... Vol. Soc ------379 1.30 1,571 1.464 Fresno ...... Vol. Soc- ---- *Glendale ...... Vol. Com --- - 125 1.05 *Hermosa Beach ...... BA. Off ----- 950 4.75 3,168 1,082 *Long Beach ...... BA. Off ----- 2,301 5.53 14,113 13.261 *Los Angeles ...... Soc ------14,351 3.38 94,630 78,501 1,241 Merced ...... Vol. Con- --- 26 .29 Modesto ...... BA. Off. Vol-- 35 .22 O akland ------Soc ------3,303 3.64 24,647 563,-6,316 *Ontario ...... BA. Off. Vol_ 430 3.44 1,500 1,50O See footnotes at end of table, p. 79 CRIMINAL JUSTICE ACT 73

Civil secdion-Continued

Amount from- Cases Type of per State and city Popula- organi- New 1,000 Gross Bar tion 1 zation 2 cases of cost Chest asso- popu- or ciation lation fund 3 or attorney

CAIFORNIA-COntinued *Palo Alto ------150 BA. Off. Vol. 136 .91 $375 ...... - $375 Pasadena (March 1961 to February 157 Soc ------468 2.98 5,867 $3, 76 2,160 1962). *Pomona ------400 BA. Off. Vol-- 598 1.50 7,279 1,047 2,422 Redwood City ------444 Soc ------343 .77 8,400 2,500 5,900 *Richmond ------72 BA. Off. Vol-- 366 5.08 75 ------100 Riverside .------306 BA. Off. Vol-- 1,094 3.58 5,905 982 3,600 *Sacramento ------550 Soc------3,455 6.28 18,773 15,000 3,200 Salinas ------198 BA. Off. Vol-- 172 .86 668...... Seaside ------*San Bernardino ------125 Vol. Soc ------242 1.94 1,430 ------1,430 S an D ieg o ------1,0 33 So c------2,472 2 .39 ------...... San Francisco (March 1961 to Feb- 740 Soc ------5,357 7.24 59,484 27,615 28,839 ruary 1962 costs). San Jose ------642 BA. Off ...... San Luis Obispo ------81 Vol. Corn ...... San Rafael ------147 Vol. Soe ------501 3.41 $3, 792 1,682 1, 68 Santa Ana ------704 BA. Off ------378 .54 14,411 ------19,178 Santa Barbara (November 1960 to 169 Soc ------98 .58 4,134 ------2,258 October 1961). Santa Cruz ------Watsonville ------84 BA. Off. Vol. 42 .0 10 10 -San ta Mon ica ------83 Soe ------841 10. 13 5,426 ...... Santa Rosa ------147 Vol Soc ------423 2.88 1,910 1,226 515 Stockton (November 1960to October 250 Soc ------1,218 4.87 11,026 2,000 4,412 1961). Vallejo ------135 Soc------396 2.93 1,430 ------1,400 Van Nuys ------732 BA. Off ------226 .31 9,684 ------12,183 Ventura ------199 BA. Off ------1,000 5.02 4,000 ------1,460 -Walnut Creek ------80 BA. Off. Vol ...... Willows ------17 Vol. Corn ...... COLORADO

Boulder, (costs July 1960 to June 74 Clinic ------248 3.35 1,010 ...... 1961). *Colorado Springs ------250 Soc ------1,225 4.90 5,225 5,225 ...... Denver (October 1960 to Septem- 925 Soc ------5,333 5. 77 42,520 41,000 -.---- ber 1961). A rvada 4 ...... Englewood ...... Westminster ...... Pueblo (November 1960 to October 119 Vol Soc ------41 .34 140 140 ------1961). CONNECTICUT

*Bridgeport ------157 Pub. Bur ...... G reenwich ------54 V ol. Corn ...... Hartford ------690 Soc ------1,327 1.92 21,531 19,669 500 New Haven ------r 152 Pub. Bur-._ 2,191 14.41 13,774 ------600 Norwich ------186 BA. Off. Vol-- 35 .19 500 ------250 *Waterbury ------107 Soc ------200 1.87 1,593 1,023 775 DELAWARE

Wilmington ------446 BA. Oil ------750 1.68 11,273 11,273 ------DISTRICT OF COLUMBIA Washington ------Soc ------7, 326 147,962 18,871 12,823 Washington ------764 BA. Off ------3,252 14.63 13,354 ------3,354 Georgetown ------Clinic ------600 i 45, 000 FLORIDA

Bradenton (June 1961 to May 1962).. 69 Vol. Corn ---- 42 - .61 ...... D ayton a B each ...... Holly Hill ------125 VoL Corn10 ...... Fort Lauderdale ------334 Vol. Corn ---- - 4,645 13. 91 ------...... Fort MyersPierce ------3955 VVol. ol. Corn ...... C orn 3.. 91...... Gainesville ------74 Vol. Corn ...... Jacksonville ------455 Vol. See - 1,311 2.88 12,651 12,651 ...... Lakeland ------195 BA. Off. Vol ...... See footnotes at end of table. p. 79. CRIMINAL JUSTICE ACT

Civil section-Continued

Amount from- Cases Type of per State and city Popula- organi- New 1,000 Gross Bar tion I zation 2 cases of cost Chest asso- popu- or elation lation fund 3 or attorney

FLOIDA--continued

Miami---- BA. Off ..... 2,880 3.08 $45,205 *M iaml Beach ------Vol. Corn ----- 135 2.14 25 Q±lando (May to December 1961) .. _. BA. Off. Vol-- 1,879 7.12 2,998 Pensacola ...... BA. Off. Vol.- 406 2.33 262 St. Petersburg (April 1961 to March BA. Off. Vol.- 126 .70 1962). Sarasota ------Vol. Corn ----- Tampa (October 1960 to September Soc ------2,996 7.53 15,880 485 1961-costs). Tallahassee ...... Vol. Corn .... 36 .49 West Palm Beach ...... BA. Off ..... 2,069 9.07 7,295 ------GEORGIA A thens 3 ------BA. Off. Vol-- *Atlanta ...... Soc ------6,724 7.25 45,188 36,599 *A ugusta ------BA. Off. Vol-. 151 1.50 200 200 *Columbus ...... BA. Off. Vol.. 75 .64 M acon ------BA. Off. Vol-. 614 4.35 5,266 5,458 Rome ...... Vol. Corn ---- 1,002 5.33 Savannah ------Vol. Soc ..... 3,510 3,500 HAWAII H onolulu ------500 1 Soc ------1,548 3.10 18, 710 13,546 4,544 IDAHO *Pocatello ------Vol. Coin ----- .531- ]ILLINOIS Aurora ------208 BA. Off. Vol-- Bloomington ------84 Vol. Corn.... Canton ...... 42 Vol. Coin----- 88 .49------Champaign-Urbana (October 1961 132 BA. Off. Vol_. to March 1962).6 Chicago (lab) ...... fDept. S.A. 24,064 4.88 Chicago (J.F. & C.S.) ------5130 Dept. S.A .. 963 339, 368 202,875 4 , 803 Danville (September 1961 to March 96 Vol. Corn ----- 15 .16 1962). Decatur (June 1961 to May 1962) .... 118 Vol. Com ... 1 1.27!0 East St. Louis ...... 263 Vol. Com ..... Eureka ...... 25 Vol. Corn ---- Glen Ellyn (March 1961 to Decem- 313 Soc ------112 .36 i...[313 ber 1961).7 Granite City ------224 Vol. Cor .... Jacksonville ------_ 37 Vol. Corn .... 9,417-:: Joliet ------192 Vol. Cor .... Lincoln ------34 Vol. Corn ----- Peoria ------189 Soc ------981 1,500 P ekin s ------100 BA. Off. Vol._ Pontiac ------40 Vol. Cor .... Quincy ------68 Vol. Corn ----- Rockford ------210 BA. Off. Vol-- 225 1.07 R ock Island ------E ast M oline ------151 Vol. Corn ---- Shelbyville ------23 Vol. Corn. Springfield ------147 Vol. Corn-.. BA. Oif ... 1, 101 Sterling ------60 ------930 16 Vol. Con... Waterloo ------Vol. Cor. 86 Waukegan ------294 Vol. Corn ... .29 Woodstock (April 1901 to December 84 17 .20 1961). INDIANA Evansville ------166 Soc ------533 3.21 10, 096 9,884 Fort Wayne ------232 Soc ------2.67 10, 455 9,556 27 *Gary ------178 Vol. Con... 020 *Hammond ------112 Vol. Con...... IS Indianapolis ------698 Soc ------3, 289 4.71 31,548 22, 62.5 1.,760 South Bend ------239 Soc ------1,013 4.24 13, 660 13,660 . IOWA D es M oines ------266 Soc ------1,384 5.20 12,965 12,729 Waterloo ------122 Dept. S.A ----- 233 1.91 2, 528 See footnotes at end of table, p. 79. CRIfNAL JUSTICE ACT 75

Civil section-Continued

Amount from- Cases Type of per Stateand city Popula- organi- New 1,000 Gross Bar tion I zation 2 cases of cost Chest sso- popu- or ciatlon lation fund - or attorney

KANSAS Kansas City 185 Soc...... 2.39 Topeka- 141 BA. Off. Vol_ 1.42 ------Wichita I 343 Soc ------. 24 ...... KENTUCKY L ouisville ------61 Soc ------10.65 $31, 048 $31, 048 ------LOITSIANA Alexandria ---...... -----...... Vol. Coin------[oI4 i, 054; i I . 0 j 1 ,5 'Baton Rouge (October 1960 to Sep- 4 1 ,5 4 .. . . tember 1961). Bossier City- 58 Vol. Com -.. Covington------39 Vol. Coin -.... *Lake Charles ------152 Vol. Comrn... *New Orleans ------868 Soc ------1,889 2.18 1040,677 39,889 $750 *Rayville ...... 64 Vol. Coin ..-- 15 .23 St. Martinsville ------29 Vol. Coin ... 3 10 *Shreveport ...... 281 Soc ------MAINE

Portland (March to December 1961) 183 BA. Off. Vol-- 235 1.28.------...... Southwest Harbor ------32 Vol. Comrn... 720 22. 50 I ...... MARYLAND *Baltimore ...... 751 Soc ------8,910 5.09 61,654 j 51,031 1 250 MASSACHUSETTS :Boston Soc ------3.43 115,171 53,700 3,368 'Cambridge (March1961 to Feb- C linic ------.14 7,714 ruary 1962). *New Bedford (November 1960 to Soc ------13.94 12,500 12, 500 October 1961). *Springfield (October 1960 to Sep- Soc ------11.21 17,688 15,087 tember 1961). Worcester (October 1960 to Septem- Soc ------1.33 10,981 11,012 ber 1961).

MICHIGAN A nn A rbor ------Vol. Coin Battle Creek I -- Soc ...... ---- Benton Harbor (September 1960 to Vol. Coin ... 60 .40 August 1951). Detroit ...... Soo ...... 17,129 6.42 103, 896 97, 271 F lint: ...... Soo ...... 1, 290 3.45 14,668 14, 636 Grand Rapids ------Soc ...... 1, 395 3.84 21,233 20,400 *H azel Park ------Vol. Comrn... Jackson BA. Off ----- K alam azoo ------Soo ------1,149 6.76 11,265 i055- Lansing Dept. S.A..... 594 2.82 5,000 5,000 Manistee -...... Vol. Corn ---- Midland (June 1961 to May 1962)___ Vol Cons -- 18 .35 M ount Clemens ...... Vol. Con ----- Muskegon Vol. Com ... Pontiac Soc. orn-----. 771 1.12 11,196 5,000 1,500 Port Huron (July 1961 to March Vol. Coin -- 26 .24 1962). Saginaw ...... Vol. Coin ...... - I-I MINNESOTA *Duluth ...... 10 S oc ------3.46 3,100 2 750 Minneapolis------Dept. S.A ---- 3.70 29,322 28, 800 St. Paul 2.28 21,507 21,456 MISSISSIPPI *Jackson------Dept. S.A ---- 2,400 1 .,200- 1, 200 M eridian ------Vol. Com -.... MISSOURI

'K ansas C ity ------Pub. Bur...-I 3,527 'Kansas City (10th and Forest BA. Off. Vol_ 120 7.66 9,437 Clinic) .15 St. Louis -...... Pub. Bur. - 4,098 5.46 17,930 Springfield 1 --.... BA. Off. Vol ------See footnotes at end of table, p. 79. 76$ CRIMINAL JUSTICE ACT

Civil section-Continued

Amount from- Cases Type of per State and city Popula- organi- New 1,00 Gross Bar asso- tion I zationSpopus- 2 cases cost Chestor elation lation fund s or attorney

NEBRASEA L incoln ...... Clinic ------.15 $1,500 1 $750 1 $750 NEVADA L as V egas ------Vol. Soc ------1.02 5,975 6,000 ...... NEW HAMPSHIRE

Manchester (statewide) ------6 0 7 V ol . C o m ...r NEW JERSEY

Asbury Park ...... 334 Soc ...... Atlantic City 161 Soc ------1,292 8.02 ---,8- "-7 55 ...... Bridgeton ------Miliville ------107 1 Vol. Soc ------19 Vineland------Camden ------Soc ------E lizabeth ------Soc ------986 1.96 4,00t8 {...... Hackensack _ BA. Off. Vol-- 263 * 34 Jersey City ------Vol. Soc ------Lam bertville ------Vol. Soc ------M orristown ------Vol. Soc ------1.-i16 2,388 1,760 948. 1,000 ------1,000 Mount Holly (September 1961 to Sec ...... 63 .28 December 1961 cases). Soc ------Newark ...... 5, 536 5.99 12,731 3,600 5,937 N ew ton ------..------..... Vol. Soc ------4 .01 ...... New Brunswick (September 1960 to Vol. Corn ---- 260 .60 ...... August 1961). Paterson ...... Vol. Soc ------Fhillipsburg...... Vol. Soc ------Salem ...... Vol. Soc ------Somerville ------Vol. Soc ------5 .03 Toms River ...... Vol. Soc ------335 3.29 T renton ------.------Vol. Soc ------932 3.50 5,375 6,016 Wildwood ------..------...... Vol. Soc ------

NEW MEXICO

*Albuquerque (October 1960 to Sep- 201 119 5.57 15,243 11,875 105 tember 1961). Soc ------NEW YORK See ...... ------273 1,207 4.42 10,341 9,487 Alb an y ------15 Amsterdam ...... 57 Vol. Com ----- .26 Auburn ------74 Vol. Coin.. Batavia ------54 BA. Off. Vol.- Bath ------.------Corning ------98 Vol. Com-.. Hornell ------Bay Shore ------667 Soc ------1,391 2.09 15,468 1,675 435 213 BA. Off. Vol.. 35 .16 Bingham ton ------Sec ...... Buffalo ------1,065 4,722 4.43 95,974 41,924 Cobleskill ------23 Vol. Com ... Geneseo ------44 Vol. Co m-- -- Hamilton ------56 Vol. Corn 42 .64 3,500 I t h a c a ------66 Clinic ------Jamaica --- ... ..------1, 810 Vol. Corn---- 4,014 2.22 7,000 5, 500 Macedon ------68 Vol. Corn --- Mineola ------1,300 Soc.----- 1.476 1.14 14,066 1,0600 3,124 -Newburgh ------31 Vol. Corn.. New York City (LAS) ------7, 782 Soc ...... 39,863 5.12 421,377 31,166 200,074 -New York City (FLS) ------7, 782 Soc ...... 643 .10 103,823 99,615 Niagara Falls (November 1960 to 150 Soc ------763 5.09 8,821 8,000 October1961). Olean ------80 Vol. Con----- Salamanca ------Plattsburg ------73 Vol. Coin. __ Poughkeepsie ------176 Soc ...... Rochester ------586 Soc ------2, 739 4.67 35,369 33,544 Schenectady ------153 Vol. Com -- Staten Island ------222 Vol. Com -- 184 .83 Syracuse ------423 Soc ------1, 500 3.55 28,386 22, 789 2,688 Utica ------264 Soc ...... 564 2.14 12,404 5,631 1,000 White Plains '4 ------809 BA. Off. Vol.- *Yonkers ------191 Dept. S. A. 226 1.18 Vol. See footnotes at end of tabl, p. 79. CRIMINAL JUSTICE ACT

Civil section-Continued

Amount from-

Type of Casesper ______State and city Popula- organi- New 1,000 Gross Bar tion I zation 2 cases of cost Chest asso- popu- or elation lation fund 3 or attorney

NORTH CAROLINA Asheville ------Vol. Corm. 113 .87 Charlotte (October 1961 to Decem- BA. Off. Vol_ 122 .45 -$-275 ------...-i~ ber 1961).1 Rocky Mount ...... Vol. Com. Vol. Coim-__ .55 Raliegh ------Soc ...... Winston-Salem 6

OHIO See ------A kron ------Soc ...... 1"1,826 3.55 "026,863 $26,087 Canton ...... 1,037 3.05 11,648 10,170 Cincinnati ------8,020 6.63 65, 011 66,452 Cleveland ...... 9,716 3.47 48,731 46,881 Columbus (May 1961 to April 1962)_ 2,721 3.98 "032,674 17,900 Dayton (July 1960 to June 1961) ----- BA. Off. Vol-- 969 1.64 Hamilton ------Soc ------128iii Springfield (May 1961 to April 1962)_ BA. Off. Vol-- ---50b 1.15 150 Toledo ------Soc ...... ----. 2,633 5.76 "D24,078 11,875 Troy ------Vol. Com- -- 9 . 12 Warren ------BA. Off, Vol-- 264 1.26 1,977 1,000 BA. Off. Vol-- 16 .21 Wooster ------10,558 Youngstown ------SOC------642 2.14 10,908

OKLAHOMA Bristow ------Vol. Coin-___ 12 .30 Duncan ...... Vol. Soc------Oklahoma City (November 1960 to See ------1,268 2.63 105,736 9,500 522 1961). October 2,397 Tulsa ------SOc...... 2,032 5,87 11,206 8,610 OREGON Eugene ------*Portland ------726163 BA. Offf.V ol.- 3,9 .29 2,17,653. Salem ------121 Clinic ...... 507 4.19 387 387 ------PENNSYLVANIA

Allentown ------BA. Off. Vol_ 700 3. 07 ...... Altoona ...... Vol. Coin-... Bellefonte...... Vol. Coim-__ C arlisle ------Vol. Corm. Doylestown (May 1961 to March BA. Off. Vol_ 257 . .83 :-600 ------1962). Easton -. .. ..------BA. Off. Vol-- 22 Erie (November 1960 to October Dept. S.A-. 811 1.o093.23 ------4,178 ----4,333------. --- 1961). Gettysburg ------Vol. Corm-__ 7 .13.------Greensburg ...... Vol. Com.-_ 100 .28 ------Harrisburg ------BA. Off ----- Jenkinton ...... Norristown ------BA. Off. Vol-- 163 .32...... ---- Pottstown ------Johnstown ------Vol. Corn- Kittanning ------Vol. Com-.. Lancaster ------BA. Off ----- 57 .21 900 600 Lebanon ------Vol. Corn- 39 .40 Lewistown ------Vol. Com-.. Meadville ------Vol. Corn-... 24 .31 Media ..... BA. Off ------1, 142 2.07 3,416 2, 600 Philadelphia (June 1960 to May 1960 Soc ------15,305 7.94 81,937 57,379 costs). Pittsburgh ------Soc ...... 5,277 3.24 48,069 45,499 Reading ------BA. Off. Vol_ 262 .95 1,350 1,350 Scranton ------Vol. Com.. 321 1.38 Sunbury ------Vol. Corn- 15,521 Wilkes-Barre ------Soc ...... 1. 76 9,996 Williamsport ..... BA. Off. Vol.. 110 1.01 1,903 2,028 West Chester ...... Vol. Com.. York ------BA. Off ...... - 1.05 4,360 4, 300 RHODE ISLAND Newport ...... 8 Vol. Com- .---.-...... *Providence ------859 Sec -- 195-1-8-172. Ii.§6. 15,77 See footnotes at end of table, p. 79. 21-022---68----6 CRIMINAL JUSTICE ACT

Civil section-Continued

Amount from- Cases _ Type of per State and city Popula- organi- New 1,000 Gross Bar lion I zation I cases of cost Chest asso- popu- or ciation lation fund 3 or attorney

SOUTH CAROLINA

C harleston ------216 Soc ------677 3. 13 $7,229 $6,671 C olum bia ------200 Vol. Coin .... 137 .69 .....

SOUTH DAKOTA

Rapid City 58 Vol. Com ----- 92 1.59 -----...... Sioux Falls- 87 V ol. C oin ......

TENNESSEE *Chattanooga...... Knoxville (March 1961 to March 130251 BA.Clinic------.. Off. Vol...... 1.'i21 1962). Memphis...... 627 BA Off -...... Nashville ...... 400 BA. Off. Vol.. 700 1.71======::::

TEXAS :Abilene ...... BA. Off. Vol.- Amarillo ...... Soc ...... Austin...... Clinic...... 454 2.14 10, 500 Beaumont ...... Soc 591 2.40 10,439 10,062 $600 Borger ...... Vol. Corn . Breckenridge ...... Vol. Com ..... Bryan ...... Vol. Corn..... Carrizo Springs ...... Vol. Com ..... Corpus Christi ...... Soc ...... 1,185 .... 1, 4105 6.33 8, 760 Dallas (LAS)------Soc 14,600 1, 325 3,000 11,600 Dallsa (LAC) Clinic ------460 }1.88 { 6,000 *Dallas (LAB) ------Pub. Bur ..... 1, 809 2.66 9, 000 El Paso ...... : Vol. Corn .... Freeport Vol. Corn .... 5 .07 Fort Worth ...... BA. Off ..... 1,336 2.48 8, 619 3, 869 4,614 Galveston ...... Vol. Com . Houston ...... fBA. Off ------Houston, Tex., Southen Uni------t1,5261 1.23 18,431 18,053 versity. 'Clinic Jasper ------Vol. Corn... Vol. Corn .... Kermit ...... Vol. Corn ..... Kingsville ------Vol. Corn... .50 Lamesa ...... Vol. Corn .. Lubbock ...... 05 Midland ------Vol. Soc ... 25 .20 MeAllen ------Vol. Corn... 22 .12 Orange ------Vol. ComCorn... --- P an p a ------Soc...... San Antonio ------Vol. Com --- 3,057 4.45 19, 535 17,135 2,400 Sherman ...... BA. Off. Vol. 360------. 2.00---- 3,110--- Tyler ------Clinic ... ------.- --- Waco -...------Vol. Soc ----- 3,110 Wichita Falls ------

UTAH Soc ...... Salt Lake City ------1,306 3.41 1 15,434 1 15,264

VERMONT BA. Off. Vol. Bennington (November 1961 to 12 April 1962). BA. Off. Vol-. Burlington ...... 48_ 1 -- -I...... VIRGINIA Arlington ...... BA. Of. Vol. *R icbm ond ------Dept. S.A .. 164 3. 408 3,408 Roanoke ...... BA. Off. Vol.. 87 3.,550 WASHINGTON Bellingham ------BA. Off. Vol-- Seattle (July 1960 to June 1961): :::- BA. Off ..... 4.70 2 13,258 Spokane ...... BA. Off. Vol.. 1.24 66 Tacoma ...... BA. Off. Vol_ Wenatchee ------Vol. Corn.... Yakima ------Vol. Corn ..... WEST VIRGINIA *Charleston ...... 277 Soc ...... 508 1.831 7.334 1 5,700 985 Wheeling ...... 6 8 V o l . C o n ...... See footnotes at end of table, p. 79. CRIMINAL JUSTICE ACT 79

Civil section-Continued

Amount from- Cases Type of per State and city Popula- organi- New 1,000 Gross Bar tion I zation 2 cases of cost Chest asso- popu- or ciation lation fund 3 or attorney

WISCONSIN Appleton ------102 Vol. Com ...... Beloit ------1 111 B.Of.Vol- 2 11 ------.--- Janeasville ------114 BA.0....2 . Fond du Lac ------75 Vol. Con --- 35 .47 ------...... Green Bay ------125 Vol. Corn ---- 131 1.05 ...... Jefferson ------50 Vol. Com ...... Kenosha ------101 Vol. Corn. --- 37 .37 ...... La Crosse ------72 Vol. Corn ...... Madison ------222 Clinic ------464 2. 09 $5, 748 $5,398 $100 Manitowac ------75 Vol. Corn ------...... --- Milwaukee ------1,185 Soc ------4,888 4.12 37,139 36,359 711 Neillsville ------32 Vol. Com ...... Oshkosh ------108 BA. Off. Vol ...... Port Washington ------38 Vol. Com ----- 6 .16 ...... Racine ------142 BA. Off. Vol-- 338 2.38 ...... Sheboygan ------86 Vol. Com ----- 27 .31 ...... Stevens Point ------37 Vol. Corn ------...... Waukesha ------158 Vol. Corn ---- 150 .95 ...... Waupaca ------35 Vol. Comrn... 1 .03 ...... Wasau (Marathon County)------89 Vol. Corn.... 24 .27 ...... *Wausau (State com.) (May 1961 to A p r . 19 6 2 ) ------3 , 9 5 2 V o l . C o m - - 4, 2 38 1. 0 7 ...... Wisconsin Rapids ------59 Vol. Corn ------...... PUERTO RICO *Rio Piedras ------589 Clinic ------...... ------*San Juan (July 1960 to Jme 19611.--- 2,350 Soc ------2,487 1.06 10131,661 ------4,400 CANADA *Alberta ------650 Vol. Com - 267 .41 ...... British Columbia (April 1960 to 1,631 Vol. Corn ---- 1,400 .86 ...... March 1961). 'Winnipeg-Manitoba ------500 Vol. Corn 179 .36 ...... M ontreal (Quebec) ------5,192 Soc ...... *Montreal ------1,750 Dept. S.A ----- 525 .30 2,381 ...... 'Nova Scotia (June 1961 to May 93 Vol. Corn. .. 191 2.05 ...... 1962). Ontario (St. Catherines) 17------...-- Vol. Corn ------...... Prince Edward Island ------103 Vol. Corn ------...... ---..... Toronto, Ontario ------6,179 BA. Off. Vol-- 6,405 1.04 1312,319 ------4,000 PHILIPPINE ISLANDS M an il a ------2, 02 2 So c ------......

I Based on the 1960 census and stated in thousands. The population generally given represents the population of the county where the legal aid service is located. If the legal aid service serves an area other than the county, an asterisk appears and the population figure given is for the area actually served. 2 The following abbreviations are used to describe the various types of organizations: Soc.-Society or independent organization. Vol. Soc.-Legal staff of society entirely volunteer. Dept. S.A.-Department of a public or private social agency. Dept. S.A. Vol.-Department of a public or private social agency with an entirely volunteer legal staff. B.A. Off.-A legal aid office operated, but not necessarily financed, by a bar association. B.A. Off. Vol.-A legal aid office operated by a bar association with an entirely volunteer legal staff. Clinic-A law school clinic giving legal aid service directly to clients. Pub. Bur.-A separate legal aid bureau supported by tax funds. Vol. Com.-A volunteer committee of lawyers of a bar association or other group doing legal aid work. 3 Amount from chest or fund includes amounts from funds of Greater New York and Long Island. 4 Denver, Colo.: Branch offices established 1961 in Arvada, Englewood, and Westminster. Cases and costs included in Denver's figures. 5 Athens, Ga.: Established 1961. 6 Champaign-Urbansa, Ill.: Bar association office (vol.) established October 1961. 7 Glen Ellyn, Ill.: Society established 1961. Committee active previously. 8 Pekin, Ill.: Bar association office (vol.) established April 1962; committee active before that date. 9 Wichita, Kans.: Society established December 1961; committee active before that date. 10Including criminal costs. 11Battle Creek, Mich.: Society established January 1962; committee active before that date. 12Kansas City, Mo.: 10th and Forest Legal Aid Clinic, bar association office (vol.) established 1961, serves neighborhood. 13Springfield, Me.: Bar association office (vol.) began operations 1962. 14White Plains, N.Y.: Bar association office (vol.) established May 1962; committee active before that date. is Charlotte N.C.: Bar association office (vol.) established 1961. 16 Winston-Aalem, N.C.: Society established February 1962. IS St. Catharines, Ontario: Serves members of armed forces only. 19Including criminal cases. CRIMINAL JUSTICE ACT

Defender section

Percent of defendants Popula- Type of 2 New represented Gross State, county and city tion I organization criminal in courts cost 4 cases S where a defender is active

CALIFORNIA Thou- sands Eureka (Humboldt County) ------105 Pub ------283 100 Davis (Yolo County) 66 Pub ------El Centro (Imperial County) 72 Pub ------350 $10,688 Independence (July 1960 to June 1961) (Inyo 12 Pub ------102 100 4,500 County). *Long Beach (city) a ------416 Pvt.-Pub ----- 140 ------..---.. 8,000 Los Angeles (county) (July 1960 to June 6,039 Pub ------32,185 () 748,469 1961). *Ls Angeles (city) ------2,479 Pub ------156, 761 72 105,024 Marysville (Yuba County)- 34 Pub ------87 65 6,200 Merced (June 1961 to May 1962) (Merced 90 Pub ------201 6,600 County). Modesto (Stantslaus County) 157 Pub ...... Oakland (July 1960 to June 1961) (Alameda 908 Pub ------I0 I County). Riverside (March 1961 to February 1962) (Riverside County). Pub ...... Indio (Deputy Riverside County) ------714 76 91, 625 Sacramento (Sacramento County) ------Pub ------San Bernardino (July 1961 to June 1962) Pub ------497------42,707 (San Bernardino County). San Francisco (July 1960 to June 1961) (city Pub ------7,199 (1) 152,254 and county). San Rafael (July 1960 to June 1961) (Matin P ub ------300 ------16,500 County). Santa Ana (Orange County) (Costs July Pub ------1,200 ------72,659 1960 to June 1961). Santa Cruz (March 1961 to March 1962) Pub ------232 ------6,000 (Santa Cruz County).' Santa Rosa (Sonoma County) Pub ------240 92 12,500 Stockton (San Joaquin County) ------Pub ------Visalia (Tulare County) ------Pub ------398 ------13,284 Yreka (Siskiyou County) ------Pub ------114 ------Yuba City (Sutter County) ------Pub ------96 ------CONNECTICUT Bridgeport (Fairfield County) ------Pub ------175 ------i3-- 6,600 ------Deep River (Middlesex County) ------Pub 39 43 2,250 Hartford (Hartford County) Pub ------New Haven County: N ew H aven ------Pub ------( 147 W aterbury ------} 71 3,120 ------70 11,266 Norwich (New London County) (May 1961 Pub 140 3,000 to April 1962). Pub ------Rockville (Tolland County) Pub ------74 67 2,400 Watertown (Litcbficd County) Pub ------68 Willimantic (Windham County) ------

DISTRICT OF COLUMBIA

Washington (June 1961 to May 1962) ------764 j Pub ------3,436------92,496

FLORIDA Clearwater (October 1961 to December 1961) Pub ------91 29 7,547 (Pinellas County).' Fort Lauderdale (Broward County) ------Pub ------1,044 7 16,600 Miami (Dade County) ...... Pub ------1,509 ------39, 000 Tampa (October 1961 to December 1961) Pub ------74 50 6,217 (Hillsborough County).' ILLINOIS

Aurora (Kane County) ...... Pub ------Benton (Franklin County) ...... Pub ------Bloomington (McLean County) ------Pub ------40 Canton (Fulton County) ...... Pub ------30 75 3,.500 Carbondale (Jackson County) ------Pub ------50 42 5,000 Champaign-Urbana (Champaign County). Pub ------80 73 6,400 Chicago (Cook County) (December 1960 to Pub ------2,481 52 180,970 November 1961). Danville (Vermilion County) ...... Pub ------Decatur (Macon County) Pub ------168 1 4 7,00 Dixon (Lee County) ------Pub ------601 64 2, 880 See footnotes at end of table, p. 82. CRIMINAL JUSTICE ACT

Defender section-Continued

Percent of defendants Popula- Type of New represented Gross State, county and city tion I organizaton 2 criminal in courts cost 4 cases 3 where a defender is active

ILLINoIS-Continued Thou- sands East St. Louis (St. Clair County) ------263 Pub ------Freeport (Stephenson County)...... 46 Pub ------89 $3, 000 Galesburg (Knox County) ..... 61 Pub ------43 3, 000 Granite City (Madison County) ------225 Pub ------Hinckley (DeKalb County) 52 Pub ------17 3, 000 Jacksonville (Morgan County) ------37 Pub ------44 100 ------192 Pub ------79 Joliet (W ill County) 82 Kankakee (Kankakee County) ------92 Pub ------70 6,400 49 Pub ------14 3,400 Kewanee (Henry County) ...... 46 Marion (Williamson County) ------46 Pub ------25 3,878 Mount Vernon (Jefferson County) ------32 Pub ------15 2,075 Ottawa (LaSalle County) .... 111 Pub ------17 70 Pekin (Tazewell County) ------100 Pub ------37 3,680 Peoria (Peoria County) ------189 Pub ------117 5,000 Pontiac (Livingston County)- 40 Pub ------41 2,880 Quincy (Adams County) ..... 68 Pub ------42 2,858 Rock Falls (Whiteside County) ------60 Pub ------18 04 3,280 Rock Island (August 1961 to December 1961 151 Pub ------31 6,500 cases) (Rock Island County). Springfield (Sangamon County) ------147 Pub ------76 4, 950 Taylorville (Christian County) ------37 Pub ------2,175 Warrenville (December 1960 to November 313 Pub ------1,50 100 4,898 1961) (DuPage County). Waukegan (Lake County) ------294 Pub ------I------I .------

INDIANA

Evansville (Vandorburgh County) ------166 Pub ------Indianapolis (statewide) ------4, 662 Pub ------1,000 20, 000 Indianapolis (Marion County) 698 Pub ------Fort Wayne (Allen County)--. 232 P ub ------120 9,000 Jeffersonville (Clark County) ------63 Pub ------(Lake County)-_. 513 P ub ------450 8,000 Gary 145 South Bend (St. Joseph County) ------239 P ub ------3,114 LOUISIANA New Orleans (Oct. 1960 to Sept. 1961) ------628 Pvt...... (0)

MASSACHUSETTS *Boston (statewide) 11 5,149 P ub ------1,480 79,306 Pittsfield (Berkshire County) 142 Pub ------(12) Springfield (Hampden, Hampshire, Frank- 587 Pub ...... (12) tin). Worcester (Worcester County) ------583 Pub ...... (12) New Bedford (Bristol, Nantucket, Dukes 408 Pub ------(12) Counties). Salem (Essex County) ------569 Plymouth (Barnstable, Plymouth Coun- 319 Pub ------ties). *Cambridge 13...... 108 Pvt ------1,101 ------2,450 MINNESOTA

Minneapolis (Hennepin County) ------843 Pub ------1,400 ...... 22,312 St. Paul (Ramsey County) ------423 Pub ------..------MISSOURI

*St. Louis (Apr. 1960 to Mar. 1963) ------750 Pub ------979 48 j 28,600 NEBRASKA

Omaha (Douglas County) ------343 Pub ------409 1 .------30,160 NEW YORK *Buffalo (city) ------533 Pvt.-Pub - 609 13 $27, 150 New Y ork (city) ------7,782 Pvt .------52,027------244. 473 Rochester (county) (April 1961 to March 586 Pvt.-Pub .... 332 3 7,500 1962). See footnotes at end of table, p. 82. CRIMINAL JUSTICE ACT

Defender section- Continued

Percent of defendants Popula- Type of New represented Gross State, county and city tion I organization 2 criminal in courts Cost 4 cases 3 where a defender is active

OHIO Thou- sand8 Akron (Summit County) ------514 Pvt ----- (1) - (10) *C incinnati (city) ------..-...... 503 Pvt ----- 3,321 17 $3,864 Cleveland (March 1961 to February 1962) 1,648 Pvt.-Pub-..- 458 ...... 42,000 (Cuyahoga County), Columbus (May 1961 to April 1962) (Frank- 683 Pvt.-Pub-.... 858 6 lin County). ('9) Toledo (Lucas County) ------457 Pvt.-Pub ---- 887 OKLAHOMA

Oklahoma City (Oklahoma County) ------440 1 Pub .------41 14,300 T ulsa ------346 Pub ------45 6, 250 PENNSYLVANIA

Allentown (Lehigh County) ------P vt ------14 Doylestown (Bucks County) P ub ------7 7,000 Norristown (Montgomery County) ------Pvt ------10,000 Philadelphia (city) (June 1960 to May 1961) _ P vt ------30 811660 ------Pittsburgh (Allegheny County) P vt 16 31.251(ii) W illiamsport ...... P vt ------31 York (York County) P vt ------33 RHODE ISLAND

Providence (State) (March 1961 to Febru- 859 Pub ...... 200 1 ...... 31,885 ary 1962). TENNESSEE

Memphis (Shelby County) 627 Pub ------1,450 28,000 PUERTO RICO

San Juan (July 1960 to June 1961) ------2,350 Pvt.-Pub ----- (10) CANADA

Toronto, Ontario ...... 6,179 Pvt ...... 1,735 (10) Winnipeg, Manitoba-. 909 Pvt ...... 268 ......

Based on the 1960 census and stated in thousands. The population generally given represents the population of the county where the legal aid service is located. If the legal aid service serves an area other than the county, an asterisk appears and the population figure given is for the area actually served. 2 The following abbreviations are used to describe the various types of organizations: Pub.-A tax-supported public office. Pvt.-A privately supported office. Pvt.-Pub.-A privately operated office supported by public funds or by a combination of public and private funds. 3 The following defender offices reported civil cases for 1961: California: Los Angeles County ------4,255 Los Angeles City ------15,367 Oakland (Alameda County) ------277 Riverside (Riverside County) ------.------6 Sacramento (Sacramento County) ------7 San Rafael (Marin County) ------7 Nebraska: Omaha (Douglas County) ------1,706

Total ------21,625 4 Gross costs of a number of defender programs are included in civil costs reported by the same offices. &Long Beach, Calif.: Legal Aid Foundation now represents in misdemeanor cases in the municipal courts. 0 58 percent of felonies. 7 Figures of cases for Los Angeles office (city) omitted from total as "crhninal cases" defined differently than national standard. 8 60 percent felonies; 80 percent shisdemeanors. 0 Santa Cruz, Calif.; Clearwater and Tampa, Fla.: Public defender offices established 1961. 10Included in civil costs. 11 Massachusetts Defenders Committee completed organization 1961. Statewide organization is in Boston. New Bedford, Pittsfield, Plymouth, Salem, Springfield, and Worcester are branch offices. 12Included in State figure. isCambridge, Mass.: Harvard Voluntary Defenders represented 45 defendants in district court, interviewed 610 clients and prepared memorandurnsregarding 1,056 charges, and prepared research memorandums in 136 matters. 14Included in civil cases. iS 66 percent felonies; 33 percent misdemeanors. CRLMIAL JUSTICE ACT

Mr. CELLER. Thank you very much. Mr. FOLEY. Mr. Poff, in those estimated figures that the Attorney General referred to, he estimates there will be 11 districts for the public defender in his estimate. Mr. POFF. I am sorry that I was unable to be here. Mr. Moore and I were attending our own subcommittee this morning and did not hear the Attorney General's testimony. May I inquire of counsel, did the Attorney General explain the basis on which that estimate was made? Mr. FOLEY. He said this is the way the estimates begin here-I am reading from his memorandum which he submitted for the record- three large districts at a cost of $447,399; two sublarge districts, $157,770; four medium districts $181,300; and two submedium districts $67,960-a total of $854,429. Then as to the other 78, other bases of assigned counsel compensated by a fee-plus-expense ratio, counsel fees would be $942,810, all other costs $342,840. Mr. POFF. Assuming that the basis of that estimate is in any way valid, I suggest to the subcommittee that the estimate applies only with respect to the immediate future. If this legislation becomes a part of the law of the land it will, of course, be possible for the public defender approach to be adopted in each and all of the 92 districts in the United States. Mr. CELLER. In other words, apparently your conclusion that the cost of the assigned counsel would be in the thousands is true, but according to the Attorney General it is $942,810, and that is only in those districts-78 districts of 92. Either system is going to cost money. Mr. POFF. Commenting specifically upon his estimate of the cost of appointed or assigned counsel, I remind the Chair that the administration bill fixes one formula for compensation of an appointed or assigned counsel; namely, $15 per hour expended. The approach which I have suggested would authorize the same dollar yardstick for time expended in court, but only $10 for time expended out of court. That, of course, would make some difference in the estimate. I think it is also fair to say that most of the cases in which counsel have been appointed or assigned in the past have required less than an hour of an attorney's time in court. So, it is quite possible that the total estimate might be substantially less than the estimate which the Attorney General ventured and indeed less than the one I made. Mr. FOLEY. Mr. Poff, at the Judicial Conference of the District of Columbia Circuit there were figures rendered by local attorneys as to the time spent and preparation-time spent in preparation in criminal cases. Also they had another set of figures and their figures were much higher than yours. Much higher. Mr. POFF. I beg your pardon. Did you say this applied to the District Court of the District of Columbia? Mr. FOLEY. U.S. District Court for the District of Columbia, and the court of appeals. Mr. POFF. Of course, the District of Columbia District Court is no fair yardstick for the district courts of the United States. There is perhaps no more congested docket in the entire judicial system than the District Court of the District of Columbia docket. Mr. FOLEY. This is time spent in the preparation of the case and in the trial of the case or in the appeal. That is all they based it on. CRIMINAL JUSTICE ACT

Mr. CRAMER. Mr. Chairman, the best that could be said about the Attorney General's estimate is that it is a guesstimate; isn't it? He is assuming that only 11 districts set up public defenders, but to do that you have to prejudge what all the circuits and district judges are going to recommend. No one can prejudge that, can they? Mr. POFF. No. They could not prejudge it. I think it might also be possible to take some exception to the Attorney General's estimate of the expense of operating the office and we might also anticipate that it would become necessary in the future, if not immediately, for local defenders to employ more than one or two assistant public defenders. I Mr. CRAMER. The way the bill is drafted, in the first place, on page 6, line 4, according to the terminology, I don't know who is going to fix the salary of the public defender or his assistant in that the judge makes the appointment but the judge is not authorized, according to the language, to fix the salary. I think that will have to be corrected. If someone appoints him, that someone ought to have the authority to fix the salary since the only limitation is that the salary shall not exceed what the U.S. district attorney gets and the assistant's salary shall not exceed the highest salary authorized the assistant U.S. attorney. So it can be anything under that. I am wondering who fixes the salary. The bill doesn't state. Mr. CELLER. I think it is the judicial council which fixes the salary. Mr. CRAMER. The judicial council, as I read the bill on page 2, conforms to one of the following: Representation by a full-time or part-time Federal public defender and assistants. There is no indication there that the council-or who has the authority to settle salaries for the defender or the assistants, nor does it indicate who has the authority to decide how many assistants he needs. Does the public defender have the right to make the decision as to how many assistants he has to have? Very clearly it is his right on page 6 to decide whether he needs full-time investigative, clerical, or other personnel necessary to the efficient performance of the duties of his office, with no limitation, with no salary suggested, with no GS- proposed classifications, which is a very unusual method or approach. It is an open door approach which lets the public defender have just as much bureaucracy as he thinks he needs. Mr. POFF. I may be in error, but I believe that the minimum salary paid a U.S. attorney is $15,000 and the maximum $20,000 and the minimum paid an Assistant U.S. attorney is $6,000 and the maximum paid an Assistant U.S. attorney is $15,000. Mr. CELLER. I would say, Mr. Poff, that if Mr. Cramer would vote for my bill I will change the language so as to put a limit, or let the judicial council fix the salary-the salaries-throughout. I am sure those gentlemen are not going to vote the bill so therefore I don't think I can accede to that statement about letting the judicial council at the outset or anybody else fix these fees and we have to, I think, leave it as the bill reads and I think itis clear that the judicial council has to be the overseer throughout here and the judicial council will have to determine what is reasonable and what is unreasonable Mr. CRAMER. I respect the chairman's opinion, of course, but I have not said I am for or against the public defender concept. What I would like to do is, regardless of what we vote out, I would like to feel I have a part in trying to improve that. CRIMINAL JUSTICE ACT

Mr. POFF. Mr. Chairman, I would also like to remind the chairman that we are not nearly so far apart in our approaches as you have indicated. Indeed, the bill which I have drafted is almost identical with the chairman's bill with the one exception of the public defender alternative. Mr. MCCULLOCH. I should like to say that by reason of the feeling of many members of this committee and, I suppose, most, if not all of the Members of Congress, there is a desire that action be taken in this field. But there is no unanimity about the details of action and I am very happy that the gentleman has presented a measure which may be a compromise measure, and I wish to compliment him on the able manner in which he presented the bill. Mr. KASTENMEIR. Mr. Chairman, just one question: I see that our colleague, Mr. Moore, has introduced H.R. 5889, and if you are familiar with it, I wonder if you could describe how it differs from your own bill, H.R. 6250? They are both identical. Mr. POFF. They are not identical. They are different in drafts- manship only. The draft which I introduced treats with the power to appoint or to assign counsel in the alternative from the beginning of the bill and thereby makes unnecessary a repetition of language which would otherwise be necessary if you dealt with those two types of counsel in different sections of the bill. Mr. CELLER. Thank you very much. The final witness for the morning session will be our colleague from West Virginia, Arch A. Moore.

STATEMENT OF HON. ARCH A. MOORE, A MEMBER OF CONGRESS FROM THE STATE OF WEST VIRGINIA

Mr. MOORE. Mr. Chairman and members of the committee, I very much appreciate the opportunity of testifying before the subcommittee with respect to proposed legislation providing counsl for indigent defendants, which is the subject matter of H.R. 4816 and a number of other bills which have been introduced and referred to this subcommittee. At the outset I would like to state that in response to an interest that had been generated over a long period of time, I put together on April 25, my bill, H.R. 5889, which sets up a system of providing such representation. The gentleman from Wisconsin, Mr. Kastenmeier, asked the previous witness, Congressman Poff, what specifically was the difference between his bill and my bill, H.R. 5889, to which the Congressman responded and to which I would like to make a further comment. With respect to H.R. 5889, and Congressman Poff's bill, they absolutely provide the same thing, language for language, comma for comma, period for period, with the one exception-and that is, section D of my bill which provides eligibility of local defender organizations for the appointment as counsel under this section, that the commissioner or court may assign counsel from an association or legal aid society or other legal defenders' organization-this has been taken by Congressman Poff and added to section B of his bill, therefore deleting section D of mine, and his legislation ends up with one less subsection than is in my bill. 86 CRIMINAL JUSTICE ACT

Mr. Chairman, I did not have the privilege of listening in its entirety to the statement of the Attorney General. But I believe it is fair to say that the Attorney General has arrived at a decision that H.R. 4816 is legislation which is compromising in nature, that we have talked for 25 years about doing something about the problem, so therefore we should take this bill, which the chairman of the full committee and the chairman of the subcommittee has introduced. There has been great emphasis made in that statement that the art of compromise should prevail in this field of providing representation for indigent defendants and to me that which is employed in H.R. 4816 is not a compromise but is a conglomeration of suggested methods put together in such a way to temp those who have different theories and opinions as to how this particular enactment should be accomplished. Now, I can never conceive that this committee nor the Congress of the United States is ever going to legislate a system of providing indigent defendants with prime legal counsel to defend them before either the district or our circuit courts, so, therefore, we have to assume that that is not the intent of the bill. Now it has been suggested, and is embodied in the legislation which I have introduced, and which I speak to, that the U.S. Commissioner have the' power to select proper legal counsel in order to insure that the defendant is given adequate counsel during every stage of the proceeding. The gentleman, and my good friend, from North Caro- lina felt that this was perhaps an unwise suggestion. But I believe that by a very simple amendment that the U.S. Commissioner can appoint and can select counsel from a list of competent attorneys furnished by the court which perhaps may come from the bar of that particular district. Now, in reviewing very briefly some of the statements that were made in response to the suggestion that the Commissioner have the power to appoint counsel, I am quick to agree with the observations of the general counsel of the subcommittee that in certain geographical areas of the country that if you are going to carry out to the letter some of the provisions that have been embodied in the decisions of the Supreme Court with respect to adequate and competent counsel of a defendant, you are going to have to provide for this in whatever legislation this subcommittee agrees on, a system whereby the U.S. Commissioner shall have the authority to appoint legal counsel. Now, I am quick to realize that the gentleman who raised this question did so in all sincerity and the observations that he made with respect to the competency of the Commissioner and the type of individual that occupies that position, could well prevail in my State, too. Likewise, I would assume in a number of other States. What I believe is absolutely necessary here, if we are going to carry through what you desire to do in this legislation, we are going to have to provide the U.S. Commissioner with a list of competent attorneys from which he shall select an individual to defend a particular person. Otherwise, I can conceive that on appeal this question, if we do not give this right in the first instance, could be very well raised and be fatal to any trial that may have taken place. I have reviewed very carefully the laws of the States of the gentlemen that are members of this subcommittee and that are members of this full committee, and basically the laws of the respective States CRIMINAL JUSTICE ACT provide for a system of court-appointed counsel to defend the indigent defendant. In each instance there is some slight differentia- tion as to the amount of compensation that the respective States allow within the framework of their State statutes, for defense before a State court. The State of Ohio has a very complete statute in this respect and it is interesting to note that it has carefully-this is the State of Ohio-has carefully set forth that there shall be, and provision is made for, expenses for investigative work, witnesses expert in nature and in detail, in addition to that, there is limitation in the Ohio statute, and in the case of a felony it does not permit the payment of counsel fees in excess of $300. In the State of Michigan, a similar statute is in existence. In North Carolina, a similar statute. The only difference is the amount which is paid for the court-appointed services. In the State of West Virginia, my home State, we have a similar statute-court-appointed counsel is provided. The basic difference from the Ohio statute is that we are not so liberal in the amounts of money that are made available for the payment of court- appointed counsel. Now, the one outstanding Mr. MCCULLOCH. Mr. Chairman, may I interrupt the witness? I would like for you to tell the committee whether the West Virginia Bar Association or any segment thereof, or any public supported organization interested in such matters have found fault with your system of providing the defense counsel for indigent defendants? Mr. MOORE. May I say to the gentleman from Ohio, I have been, like most members of the committee, a trial lawyer and a practicing attorney previous to coming to the Congress, and in direct response to your question, I have had no exceptions taken to the system which we have in operation in the State of West Virginia. Mr. MCCuLLOCH. In your study of State laws, did you have the time to find out how the various States, other than your own State, were functioning under the systems which they respectively had, some of which you have mentioned? Mr. MOORE. The best information that I can come up with in each instance is that. the States have, from time to time, broadened their respective statutes, and improvements have been made along the way. The State statutes that I have studied have adequately provided a sound basis of appointment of defense counsel for indigent defenders in the form of court-appointed counsel. Mr. MCCULLOCH. Is it your opinion that modification of State law in accordance, at least in part, with your H.R. 5889 and Mr. Poff's 6250 could be fitted into the Federal system and insure indigent defendants charged with Federal offenses a proper defense at every state of the proceeding? Mr. MOORE. There is no question in my mind. I think it is a necessary first step. I assume the committee will have outstanding individuals in the legal profession who will come here and speak affirmatively and convincingly in behalf of the public defender system, and I have no quarrel with them. But in response to your question, I believe that this is the necessary first step which should come from us here in the Congress and that if, in any sense of the word, it should prove inadequate in the future, it can be improved on, whether it is on a district-by-district basis or whatever the situation might be, I think we can improve upon it in the future. I think this is a neces- CRIMINAL JUSTICE ACT

sary first step. I think it is compatible with the Federal rules of procedure because you will have the same system, that is if the committee would be of a mind to accept my bill which is H.R. 5889, a system which is the same in all of the 92 jurisdictions-Federal district courts in the United States. It is possible the way the Su- preme Court goes today and rules that you may have a defendant come before the Supreme Court and say, "I have not had an adequate defense because I didn't have the public defender system and they do in the next adjoining district." He would say, "I have the court- appointed system," or that I have a combination of any one of those that is embodied, very respectfully, in the chairman's bill. I can see that defense counsel would have to consider very seriously the prospects of raising that point in attempting to turn a conviction. So I might say-in giving you a long answer to a short question-I believe that what has been suggested by myself and Congressman Poff adequately takes care of the problem today and it is a necessary first step. Mr. MCCULLOCH. And, of course, if it would prove inadequate, it would prove inadequate very quickly and broadminded legislator that you are, you would move just as quickly to provide the necessary amendment to such legislation? Mr. MOORE. Without question. May I say, following up and not wanting to consume too much time, there is one outstanding example in the States in which there is a public defender's system in operation. We have some isolated instances in which on a county-per-county basis the public defender system is used. There is one outstanding example in which the system is utilized and it is in the State of Connecticut. It is not a very complicated system. All that happens is, previous to the meeting of the superior courts which meet in June in the State of Connecticut, they appoint an attorney as the public defender, one who has been at the bar for a period of 5 years, a minimum of 5 years. They provide his salary to be no less than half that which is paid the district attorney in that particular jurisdiction. Now, this system may very well be presented-the Connecticut system may very well be presented to the committee by those who advocate generally the public defender system, but it is interesting to note that Connecticut by and large is really the only State which has the system that is in operation today. It is segmented in other urban areas without question and on a county- by-county and city-by-city basis. Mr. Chairman, I want to emphasize something-that I believe the gentleman from Virginia said. I think that whatever is arrived at or whatever the subcommittee arrives at, that we want to insure that this system that we seek to put in operation is as far removed from the Federal district attorney's office, and the Federal courts as it can possibly be. And I see some danger in the public defender system for that reason. In taking th bill of the chairman, we would give a wide choice to different areas of the country, it would seem to me that we would have a legislative creature which does violence to our Federal rules of procedure, in that we will not know what system exists in what jurisdiction. Now, uniformity was demanded and the Congress responded and the test of unformity was met when we came up with the Federal rules of procedure. Under H.R. 4816, we can have an assortment of ways in which the U.S. courts can provide CRIMINAL JUSTICE ACT 89 counsel for indigent defendants. I think a necessary first step is to provide a system which is utilized by every one of the States to some degree-Connecticut is the only exception-which would be compatible with the system in that State and which would certainly be compatible with the Federal rules of procedure. . I want to go back and emphasize one thing and realizing that the committee in all probability will not give great consideration to my legislation. It has" been suggested by one of the witnesses here that my bill providing $15 an hour and $10 per hour as compensation for services is not adequate counsel fees. Well, my answer is, we can never provide the indigent defendant prime legal defense counsel and that isn't what we desire to do. Mr. MCCULLOCH. Might I interrupt the witness there? Isn't there a duty on the profession to do some public service from time to time at which they do not expect and should not expect compensation at the highest going rate? I mentioned the medical profession for instance? Mr. MOORE. May I say to the gentleman, you have stated my second point in this area, because I believe that the bar does have a responsibility in this area and that if you take H.R. 4816, you are going to absolve the bar of this responsibility. Mr. CELLER. Of course, in my opinion that is the highest hope that can be achieved. The bar has responded to what you deem and Mr. McCulloch deems and which I deem their responsibility. They have come forward and adequately taken care of indigent defendants but were not compensated. That has been the breakdown of our present system. The fact that the attorneys have come forward willingly to assume some of those burdens-I do not think that they will in the future. I have great respect for the bar myself in many years standing. Mr. McCuLLocH. I respectfully disagree with at least some parts of your statement. I think there will be evidence for the record later on which will show the response to be remarkable. I am hopeful to have some testimony from Ohio, at least, which will show a response by competent attorneys when the council calls for it. Mr. CRAMER. If that is not the case, then alternative number 3 in H.R. 4816 has no justification for being in the bill, because under the bill, a legal aid society or local defender organizations could be accepted by the circuit as an 'approach. So I think it is begging the question to say that this is not the proper approach and yet put it in the bill as one of the alternatives, unless the objective of the bill is to force all districts into the public defender system. Mr. CELLER. That isn't the object of the bill at all. I don't agree with the gentleman's conclusion. In fact I disagree with him. Mr. CRAMER. I just want to make the point that the legal aid society approach is one of the alternatives available for choice by the district. That would seem to justify and substantiate the fact that apparently there are many places where the legal aid society approach is working and is good. Mr. MOORE. May I say to the gentleman, that is an absolute established fact, one of the most outstanding examples of this is in the chairman's own city of New York. CRIMINAL JUSTICE ACT

Now, may I say, in winding this up, if the bar which has so miserably failed this test-as you say-my observation being pious in nature- perhaps not nature-but pious in hope, then why have we not had this crescendo of public opinion descend upon us, demanding that something be done? Right today the moving forces in this matter are the various bars and the only thing that these legislative suggestions contain, regardless of whether it is the gentleman from Virginia, the gentleman from New York, the gentleman from North Carolina, the gentleman from West Virginia, is a system of compensation. That's what we take care of, because the Federal law today is void of a basis of providing compensation. To emphasize this need, the Attorney General, on May 13, before the Senate Judiciary Subcommittee on this very matter, made the statement that he wanted to rule out the rich man's defense. Therefore, we are talking about how we can compensate the attorneys to encourage them to give an adequate and complete defense and my bill provides such a system. I provide for all the necessary expenses for investigative work, for the necessary witnesses-expertise or whatever the nature may be, the distance they may have to travel and a uniform system which would be in operation in all of the district courts of the country. Now, I want to wind up by saying this: Whatever you do, don't treat too harshly this suggestion that you delete the U.S. commissioner from reference in whatever bill you consider. I sincerely believe that if you delete that privilege of giving them competent legal counsel from the very beginning of any proceeding, that you are going to have visited upon you a decision .of the Supreme Court that will cause us to have to rewrite this law again and I simply say that, the matter and objection which has been raised to including and giving to the U.S. commissioner the right to appoint defense counsel can be, I believe, adequately protected by an anendment which in the more refined sense of the bill I have introduced, states the U.S. commissioner shall appoint from a list of competent attorneys provided by the district court. Other than that, Mr. Chairman, I want to assure the subcommittee that all of us are unanimously interested in seeing that something be done in this area. I am not saying that I have any pride of authorship in my particular legislation, but I believe characteristic of the way Congress does business and desiring to get this bill written into law, that mine is an honest and able answer to the question which you are so vitally concerned about. Thank you very much. Mr. CELLER. Thank you, sir. We are now at 5 minutes after 1 and we are supposed to recess, but I understand that Mr. Seymour is here and Mr. Seymour would you be very brief if we call on you now? Mr. MCCULLOCH. I want to personally thank our colleague from West Virginia on his very able exposition of the cause which he espouses. Mr. CRAMER. I would like to join in that, both Mr. Moore and Mr. Polf. Mr. CELLER. Unfortunately, Mr. Lindsay had to depart from the room because of another pressing engagement, otherwise he would have most pleasurably introduced you, Mr. Seymour, but we all know you. We respect your opinion and we are very glad to hear from you. I am going to ask you to be very brief. CRRIINAL JUSTICE ACT

STATEMENT OF WHITNEY NORTH SEYMOUR, CHAIRMAN, SPECIAL COMMITTEE ON DEFENSE OF INDIGENT PERSONS ACCUSED OF CRIME, OF THE AMERICAN BAR ASSOCIATION

Mr. SEYMOUR. I have a statement and I would like to file that. I would like to file with it the report of the special committee of the American Bar Association advocating the principles of the bill which is introduced by the chairman. That is H.R. 4816. (The statement and the report referred to are as follows:)

STATEMENT OF WHITNEY NORTH SEYMOUR, CHAIRMAN, SPECIAL COMMITTEE ON DEFENSE OF INDIGENT PERSONS ACCUSED OF CRIME, OF THE AMERICAN BAR ASSOCIATION IN SUPPORT OF LEGISLATION WHICH WOULD PROVIDE ADEQUATE DEFENSE FOR THE CRIMINALLY ACCUSED IN THE FEDE.-ZAL COURTS

My name is Whitney North Seymour. I was President of the American Bar Association from 1960 to 1961. 1 have been a director of the New York Legal Aid Society since about 1940, and was president from 1945 to 1950. I am a director of the National Legal Aid and Defender Association, and have long been interested in the problem of providing counsel fqr indigent people. Shortly after the house of delegates of the American Bar Association, at the instance of President Smith, authorized a new special committee on defense of indigent persons accused of crime, President Smith appointed a representative committee consisting of the following: Jerome S. Weiss, Chicago; Ralph W. Brenner, Philadelphia; Stuart B. Campbell, Wytheville, Va.; Alvin R. Christovich, New Orleans; Clark M. Clifford, Washington, D.C.; John W. Cummiskey, Grand Rapids; Osmer C. Fitts, Brattleboro; Arthur J. Freund, St. Louis; William T. Gossett, Bloomfield Hills, Mich.; Erwin N. Griswold, Cambridge; Erby L. Jenl. ins, Knoxville; Orison S. Marden, New York City; Harold F. McNiece, Brooklyn; Maynard .1. Toll, Los Agneles; Whitney North Seymour, New York City, chairman. This committee contains a number of people who have been deeply interested in legal aid work for many years. The committee immediately embarked upon a study of the problem of providing adequate defense for indigent persons accused of crime in the Federal courts. It prepared and submitted to the house of delegates at its meeting in New Orleans in February 1963 a report with recommendations. These recommendations were unanimously adopted by the house of delegates and this is therefore the official position of the American Bar Association. I should like to file a copy of this report with the committee in connection with this statement and request that it be printed in the record of these proceedings. The recommendations of the committee are as follows: "The American Bar Association recommends prompt action by Congress to insure adequate defense for indigent defendants in criminal cases in the Federal courts, to implement the sixth amendment of the Federal Constitution and the court decisions thereunder. "The American Bar Association 'approves in principle legislative proposals to this end which include the following fundamentals: "(1) Giving the several district courts an option either to- (a) Appoint a public defender with necessary staff; or (b) Designate a voluntary defender, leg4l aid society or other similar agency; or (c) Appoint counsel from the bar; or (d) Utilize some satisfactory combination of the foregoing. "(2) Providing reasonable compensation for those involved in any of the foregoing, including individual assigned counsel, as well as adequate funds for investigation and preparation. "(3) Providing for appointment of counsel at the earliest possible time and insuring availability of counsel through necessary appeals. "(4) Providing for payment of the foregoing out of adequate funds appropriated for the judiciary. "The standing committee on legal aid work and the special committee on defense of indigent persons accused of crime, with such assistance as they may ask, are authorized to present the views of the association on particular legislation within the foregoing principles, and also to comment on details of the proposed legislation which are related to such principles." CRIMINAL JUSTICE ACT

The proposed Criminal Justice Act of 1963 incorporates the principles advocated in these recommendations. We, therefore, strongly favor its adoption. Among the principles which are incorporated, which I shall not discuss in any detail, are provision for investigation with funds for the same, appointment of counsel at the earliest possible time, and providing counsel on appeal. I would like to discuss in some detail the very wise provisions for options to the several district courts as to the methods which they may use to accomplish the objective of the statute. These include the appointment of a public defender, the designation of a voluntary defender or a legal aid society, the appointment of individual counsel from the bar or a combination of these methods. This will give the district courts the opportunity to select the best method to suit the needs of the particular court. In the larger and busier districts, generally speaking, the mere assignment of individual counsel may prove to be inefficient and undesirable. Such districts may have a wide choice among other methods. On the other hand, in the less busy districts, some selection of inoividual counsel may prove to be the most feasible and desirable method. There has been sufficient experience with public defenders in State courts to establish that this is a very satisfactory method of providing counsel and some districts will undoubtedly adopt it. I know of no basis for believing that such public defenders would be influenced to disregard the interests of their clients by the fact that they receive compensation from the Government, or were in constant contact with the prosecuting officials. They are no different from judges in that regard, and judges are entirely able to maintain their independence. One would expect the same responsibility from members of the bar. As one familiar with the work of such organizations as the New York Legal Aid Society, I particularly commend the provision of the bill which enables a district court to designate a legal-aid society to provide defense in the particular court. In New York City, the legal-aid society has been appointed in the southern and eastern districts in hundreds of cases. Its service has been excellent and it has been repeatedly complimented by the courts. The district court in Phila- delphia has had a similar experience with the voluntary defenders there. It is possible that other districts may desire to appoint legal-aid societies and they should be free to do so. One of the great advantages in using the legal-aid society in a busy district like the southern district of New York, is that in addition to counsel regularly employed in the Federal court the legal-aid society can call on other experienced trial counsel usually assigned to the State courts to take up the slack when business in the Federal court is particularly heavy. If a public defender were used in such a district instead of a legal-aid society, it would be necessary to maintain a staff large enough for peakloads and perhaps unnecessarily large for slack times. In view of the dissatisfaction with the assigned counsel system in such districts, this matter could not be adequately handled by merely going to the assigned counsel system when the load was heavy. Since the choice made by the district courts is subject to approval by the judicial council in the circuit, one may be sure that the choice will be careful and deliberate and that there is no danger of abuse. It would seem better to have the decision made within the judicial system rather than to introduce any possible political note by having the appointments made by those not primarily concerned with judicial administration. After all, it is the duty of the court to see that defendants are adequately provided with counsel and the choice the court makes among the several systems may determine whether its judgments will stand on appeal. The matter of providing counsel for indigents in the Federal courts has been under study for many years. - Legislative proposals have been carefully examined. The need for legislation is thoroughly established and has the support of leaders of the bench and bar and leading Members of Congress. I respectfully submit that the time for action is now and that the present proposal embodies the best elements of those which have been considered before. It is clear that the Con- stitution requires assignment of counsel for indigents, that hit-or-miss assignment does not adequately meet the constitutional requirements and is an unfair burden on defendants and the bench and bar; therefore that legislation of the present character is necessary to implement the constitutional requirement. We all take pride in our basic concept of equal justice under law and believe it should not be an empty one. Enactment of the present legislation will emphasize the devotion of our country to that principle. CRLMINAL JUSTICE ACT 93

American Bar Association Special Committee on Defense of Indigent Persons Accused of Crime Jointly With Standing Committee on Legal Aid Work

THE RIGHT OF INDIGENT DEFENDANTS TO COMPETENT COUNSEL IN CRIMINAL CASES IN THE FEDERAL COURTS

RECOMMENDATIONS The American Bar Association recommends prompt action by Congress to insure adequate defense for indigent defendants in criminal cases in the Federal courts, to implement the sixth amendment of the Federal Constitution and the court decisions thereunder. The American Bar Association approves in principle legislative proposals to this end which include the following fundamentals: (1) Giving the several district courts an option either to- (a) Appoint a public defender with necessary staff; or (b) Designate a voluntary defender, legal aid society or other similar agency; or (c) Appoint counsel from the bar; or (d) Utilize some satisfactory combination of the foregoing. (2) Providing reasonable compensation for those involved in any of the foregoing, including individual assigned counsel, as well as adequate funds for investigation and preparation. (3) Providing for appointment of counsel at the earliest possible time and insuring availability of counsel through necessary appeals. (4) Providing for payment of the foregoing out of adequate funds appropriated for the judiciary. The standing committee on legal aid work and the special committee on defense of indigent persons accused of crime, with such assistance as they may ask, are authorized to present the views of the association on particular legislation within the foregoing principles, and also to comment on details of the proposed legislation which are related to such principles.

REPORT Congressional action is urgently needed to balance the scales of justice in criminal trials in the Federal courts and give reality to the indigent defendant's constitutional right to counsel. This right is uaranteed by the sixth amendment of the U.S. Constitution, decisions of the U.S. Supreme Court, and the Federal Rules of Criminal Procedure. The sixth amendment requires: "In all criminal prosecutions, the accused shall enjoy the right * * * to have the assistance of counsel for his defence." The U.S. Supreme Court: "* * * The sixth amendment withholds from Federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel * * *" (Johnson v. Zerbst, 304 U.S. 458, 463 (1938)). The Federal Rules of Criminal Procedure: "If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceedings unless he elects to proceed without counsel or is able to obtain counsel" (rule 44). Leaders in Congress and in the executive branch as well as in the judiciary and at the bar have long recognized that Congress should provide a remedy so that the constitutional guarantee can be honored in all Federal courts. Congress- man Emanuel Celler and Senator Estes Kefauver have advocated measures which at one time passed the Senate. At the last session, Senator Hruska and others pressed for passage of a measure (S. 2900) which resembled the earlier measure and differed in only minor particulars. This, too, passed the Senate. It is our understanding that the President, with the advice of the Attorney General and a distinguished committee appointed by the Attorney General, headed by Prof. Francis A. Allen, of the University of Michigan Law School, will submit a measure which is similar in principle and differs from the Hruska bill in relatively minor respects. In view of the variety of measures which may be submitted and considered by Congress, it seems impractical to ask the house of delegates to act on a particular measure. Instead we have selected what we regard as the principal ingredients of any measure adequate to deal with the problem. These are embodied in the resolution which we have recommended. Each of the measures which may be proposed will undoubtedly have some incidental provisions which will have to be dealt with when the final form of the measure

21-022-63----7 94 CRIMINAL JUSTICE ACT emerges. The House should adopt the basic principles in our recommendations and authorize the two committees to present the association's views on those principles and any incidental and related matters as the matter advances in Congress. THE OUTMODED ASSIGNED COUNSEL SYSTEM At this late stage in the development of our jurisprudence, the general practice in the Federal court is still to assign counsel to indigent defendants on any basis that seems appropriate to the trial judge. Some judges call upon young lawyers,. on those whose practice is not large, or on any lawyer who may be in the courtroom at the time. A few judges consider the entire local bar to be available, and some make it a practice to designate the ablest and most experienced lawyer available, especially in capital cases. One of the most important considerations in the court's choice is the fact that funds are not available to compensate appointed lawyers. Many judges are reluctant to appoint a lawyer who has a thriving practice which he will have to set aside in order to defend an indigent client. This haphazard system has been effective in most capital cases. It has worked. fairly well in other cases in at least some of the less populated areas. But in the large urban centers, where the volume of criminal cases is great, the system has been tragically unfair to many defendants in noncapital cases, and has imposed needless burdens on the courts, and needless hardships on lawyers. . The solution, long overdue, rests squarely with the Congress. Unfair to the defendant The 'offices of prosecuting attorneys are staffed by career men who have a high degree of technical skill. They have at their disposal modern devices for crime detection and extensive facilities for factual investigation. The indigent defendant is in an unfair position unless he also has able and experienced counsel. But competent counsel is not often supplied by the present haphazard system of appointments. A young, inexperienced lawyer cannot balance the scales for the defendant against the modern organization of the prosecuting attorney. Nor- can a skillful, experienced attorney, if his experience is in tax matters, bankruptcy, antitrust law, or in any area other than criminal law. Even if appointed defense counsel is exceptionally well qualified, he usually enters the case too late to balance the scales of justice. All too frequently, when defense counsel is appointed, government counsel is well along in the preparation of its case. By this time, it may be difficult to locate possible witnesses for the defendant, or they may have become unavailable, or have forgotten relevant facts. As one lawyer stated, "It is like running a 100-yard dash, giving the other side- a 50-yard headstart." Quite aside from the need for prompt preparation of the defense, the constitutional rights of the defendant may have been waived or denied during the preliminary proceedings if the advice of counsel was not available. As the Supreme Court pointed out in the leasing case of this kind: "* * * during perhaps the most critical period of the proceedings against these defendants, that is to say from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation, and preparation were vitally important, the defendants did not have the aid of counsel in any real sense * * *" (Powell v. Alabama, 287 U.S. 45, 57 (1932)). binfair to the court The present system imposes on the court responsibilities that belong elsewhere. Many conscientious judges accept the obligation to protect the rights of a defendant who is represented by inept, inexperienced, or indifferent counsel, but this task should not be added to the other exacting responsibilities of the trial judge. Also, often it 'is impossible for the court to make a proper determination of indigency when an unrepresented defendant is arraigned or appears for trial. And frequently it is embarrassing for judges to assign reluctant, uncompensated counsel to cases that may require weeks of preparation and trial, and may involve the probability of defeat and consequent damage to reputation at the bar. Judge Leon T. David, a veteran trial judge in Los Angeles, has described the- situation (45 Minn. L. Rev. 753, 756-7): "The judge ordinarily has no investigatory facilities to verify the indigency of the prisoner. If the defendant cannot post bail and says he has neither money nor friends who will assist him, the judge may have to let the matter rest. But what lawyer will he assign to the case? CRIMINAL JUSTICE ACT

"In my early years of:practice, I have seen the judge scan the courtroom and summon to the indigent's defense the first young lawyer whom he recognized that morning. I have seen another reach for a list of names he kept under the corner of his blotter; the names were those of young lawyers who had requested that they be assigned for he experience. Since a lawyer is bound by tradidon, by canons of ethics, and by law never to reject the cause of the defenseless or oppressed from any consideration personal to himself, it is accepted law that the court may appoint counsel from the ranks. By tradition, however, such appointments fall to the newer members of the bar although the courts have assigned eminent counsel in unusual circumstances." All of this undermines the adversary process which is so deeply rooted in the American system of jurisprudence. Unfair to the lawyer Since funds are not available to compensate appointed lawyers for their services or out-of-pocket expenses, or for investigations of the facts, a lawyer must often make a substantial personal sacrifice in order to discharge his responsibilities conscientiously. Those who do so, represent the noblest tradition of the bar. In practice, however, the burden is spread among relatively few members of the profession. Many of the assignments go to young lawyers, on the questionable theory that this provides good training for the inexperienced junior members of the bar. While they may need the experience, few of them can afford to work without compensation for weeks or even months. In a hearing in 1959 before the House Judiciary Committee, scores of letters and affidavits from young lawyers, appointed to represent indigent defendants in the Federal courts, were introduced in evidence. Their testimony provided convincing evidence that the uncompensated assigned counsel plan is unduly burdensome on the young attorney. Here are some quotations from the record: Case A.-"* * * I devoted somewhere in the area of 550 to 600 hours to this litigation * * * all without compensation and in a large measure without reimbursement for my out-of-pocket disbursements, which ran approximitely $400." Case B.--"* * * This case took 3 full months of my time when I was trying to build up a practice. I had to spend money I had planned on using for a vacation (for family) * * *" Case C."* * * I had spent approximately $100, which was advanced to me by my wife from her bank account (saved from school teaching days) ** 150 hours would be a conservative estimate (of time spent) * * *" Even if the appointments were distributed among all the lawyers practicing criminal law in the Federal courts, the burden would fall upon a comparative few. Unfortunately only a small percentage of the lawyers specialize in criminal law practice. Arthur S. Bell, Jr., chairman of the Los Angeles County Bar Association Federal Courts Criminal Indigent Defense Committee (the most ambitious volunteer plan established by lawyers), reports: "* * * we cannot expect * * * to match the performance of public defenders or paid assigned counsel * * * 'Based upon years of actual experience, (this) association favors the passage of H.R. 2696 (Congressman Celler's bill for a Federal public defender) to fill a critical public need.' The defender principle is sound The defender office is a fried and proven method of providing fairplay for indigent defendants. The first public defender was established in Los Angeles County almost 50 years ago. Today, indigent defendants in the State courts are served by more than 110 defender offices, most of them in the larger cities. The defender offices that reported to NLADA in 1961 handled a total of 141,719 cases. Accordingly, we believe that defenders, public or voluntary, or legal aid societies, should be selected in the more populous districts. Of course, payments for services must be made to such entities or groups. Where this is impractical, appointed counsel should be compensated. The principle of compensation for appointed attorneys is also well established. Forty-seven of the fifty States compensate appointed attorneys in areas where no organized defender office exists. The Judicial Conference of the United States first approved the proposal to establish the public defender system in the Federal courts in 1937, and has since reaffirmed its position 17 times. Specific bills to provide Federal public defenders were endorsed in 1944 by a special committee composed of distinguished Federal judges headed by Judge Augustus Hand. 96 CRIMINAL JUSTICE ACT

The U.S. Department of Justice has supported this principle since 1937: Every Attorney General since then has advocated public defender legislation. These have included Homer S. Cummings, Frank Murphy, Robert H. Jackson, Francis Biddle, J. Howard McGrath, Tom C. Clark, James P. McGranery, Herbert Brownell, Jr., William P. Rogers, and Robert F. Kennedy who, in calling for public defender legislation, said to the house of delegates in 1962: "The time to translate good intentions into law is long overdue. I ask for your help as a group or as individuals in working for its enactment." The American Bar Association has taken an active interest in proposed legislation to improve the method of providing counsel for poor defendants since 1936. In 1939, the public defender principle was approved by the house of delegates. The board of governors endorsed a specific public defender bill in 1958. Emanuel Celler, chairman of the J udiciary Committee of the House of Repre- sentatives, reported to the committee in 1960 that a poll of 545 Federal judges, law school deans, and professors, and ABA members showed that 89 percent favored public defender legislation. Individual leaders of the bar who have supported the principle include: Hon. Earl Warren, Chief Justice of the United States; Hon. Augustus Hand and the late Hon. John J. Parker, U.S. Court of Appeals; President Sylvester C. Smith, Jr., president of the American Bar Association and many of his predecessors; Harrison Tweed, chairman of the American Law Institute; Henry P. Chandler, former Director of the Administrative Office of the United States Courts; James V. Bennett, Director of Federal Prisons; and William T. Gossett, president of the National Legal Aid and Defender Association and former vice president and general counsel of Ford Motor Co. We should remind ourselves of the eloquent summary of the test of civilization by the chief justice of one of our State supreme courts over a generation ago: "Equal and exact justice has been the passionate demand of the human soul since man has wronged his fellowman; it has been the dream of the philosopher, the aim of the lawgiver, the endeavor of the judge, the ultimate test of every government and every civilization." [John B. Winslow, CJ, Supreme Court of Wisconsin, 4 Journal of Criminal Law and Criminology, 650 (1914)]. To deny equal justice to the poor is intolerable in principle. To continue the present system, when such a practical alternative is available, jeopardizes our country's claim to world leadership in the cause of freedom and justice under law. This report is presented jointly by the two committees whose chairmen have signed it. In addition, the position is squarely supported by the National Legal Aid and Defender Association. We are submitting this report also to the council of the section on criminal law and are hopeful that at its meeting in New Orleans before the meeting of the House, its delegate may be authorized to state to the House the council's support for our recommendations. Respectfully submitted. JOHN W. CUMMISKEY, Chairman, Standing Committee on Legal Aid Work. WHITNEY NORTH SEYMOUR, Chairman, Special Committee on Defense of Indigent Persons Accused of Crime. Mr. SEYMOUR. Now, through your courtesy in hearing me out of turn, the symmetry of the American Bar Association presentation is somewhat affected because the natural first witness is President Smith who will be heard after lunch and there are two other witnesses from the American Bar Association. All I want to say is that this bill with its four options is in precise conformity to the unanimous view of the House of Delegates, American Bar Association. That the availability of these four options is such that each district can adopt the option which is best in the light of the experience and tradition of the bar and bench of that district, seems to us a very statesmanlike approach to the problem. We are particularly glad that the legal aid society is included as one possible alternative because as you know in New York City, particularly, it has been a most effective aid both in the State and Federal courts and its continuous use in the Federal courts would certainly be highly desirable. CRIMINAL JUSTICE ACT

Mr. MCCULLOCH Mr. Chairman, at that point may I interrupt the witness? Is there assurance under the bill which you say that you and the association endorse, that you will continue to have the service of that very fine organization at such a minimum cost? Mr. SEYMOUR. Knowing the enthusiasm of the Federal judges in the second circuit who deal with courts where the legal aid society serves the courts, including the chief judge of the circuit, I have no doubt that the plan in those districts would include the continued use of the legal aid society. Mr. M cCULLOCH. Do you have any firm feeling that the public defender system would not sooner or later completely envelope this voluntary charitable activity as such Federal activity has in practically every other field in the United States where there has been parallel activity? Mr. SEYMOUR. I would not expect it to. In New York and Phila. delphia the voluntary system has worked so well I am sure the judges would want to continue it and they are free to do so under this bill. The public defender alternative is one which I think would be adopted in districts where they do not now have a satisfactory system. Mr. MCCULLOCH. Let me interrupt again, please. That is not contrary to the conclusion of the present Attorney General or his predecessor; is it? In testimony before this or other committees, or in written communications, that is not contrary; is it? Mr. SEYMOUR. I do not think it is contrary. The reason he advocates it is because the public defender system might well be adopted and it is a very good system where that is the natural system. Mr. COPENHAVER. Was not New York one of the districts that the Attorney-General indicated would establish a public defender system? Mr. SEYMOUR. I have not studied the list. Mr. MCCULLOCH. That was my understanding and it was also my understanding that that was the testimony that appeared in the hearings before the Subcommittee No. 2 of the I-ouse of Representa- tives on May 6 and May 15, 1959. I can't put my finger on it. Mr. SEYMOUR. The earlier bills did not ordinarily include the alternative of the use of the legal aid society. And one of the great virtues of this bill is that it does include that alternative. And where there was no such alternative one might suppose that the public defender would be adopted. But where there is this alternative I would expect that the legal aid society service would be continued. I am not going to talk about public defender at length because others following me will do it. There are certainly many reasons to believe that where the system suits the needs of a district and the desires of the judges and lawyers of that district, they should be free to adopt that system and the great thing about this bill is that it does not force any system. It leaves people free. It is on that basis that we think that the bill fully conforms to the principles adopted by the American Bar Association. Mr. CRAMER. May I ask a question, Mr. Chairman? At the bottom of page 4 of your statement you discuss the excel- lence of the New York City Legal Aid Society and compliments that have been made by the court. Then you go on to say, if a public defender would be used in such a district, meaning New York, instead 98 CRIMINAL JUSTICE ACT of legal aid societies, it would be necessary to maintain a staff large enough for peakloads and perhaps unnecessarily large for slack time. You further say that one of the great advantages of using legal aid societies in a busy district like the Southern District of New York is that in addition to counsel legally employed in the Federal court, the legal aid society can call on other experienced trial counsel usually assigned to the State courts to take up the slack when business in the Federal courts is particularly heavy. What disturbs me is that I, too, understood that New York was one of the areas where it would be expected that the public defender system would be put into effect because it is absolutely necessary due to the size of the area. Ap- parently you disagree with that? Mr. SEYMOUR. I would think the system would end up in some kind of combination system because you never can meet every possible problem in a great big district by any one system. For example, if you have a multidefendant conspiracy indictment you have got to ave counsel from all kinds of sources to deal with it so you might have to have some assigned counsel anyhow. We do this in New York even with the legal aid society. The purpose of that part of my presentation was to suggest that there were many advantages in the legal aid society in New York and the southern district which I thought would make it preferable to a public defender there and I think that is the way it ought to work out. Mr. CRAMER. If they appoint a public defender in New York City, the effect of it would be to dry up the legal aid system. Mr. SEYMOUR. In the Federal court we handle hundreds of thousands of cases in the course of a few years and they would continue elsewhere. We hope to have it continue in Federal courts. Mr. CRAMER. Your recommendation would be to not have a public defender? Mr. SEYMOUR. In the southern district of New York. Mr. MCCULLOCH. Will the gentleman yield? Referring specifically to the statement made from memory, I now have before me a communication from the Department of Justice under date of May 7, 1963, and on page 3, there is presented the estimated average unit cost in the three largest districts which would have the public defender office-and the footnote carries these districts, California, southern, and northern District of Columbia. That's the basis of the question. Mr. SEYMOUR. I have no quarrel with the estimated costs. Because they know the number of cases. Mr. MCCULLOCH. It was the implications, not the cost of the thing that I was pursuing at that particular moment. Mr. SEYMOUR. I am very hopeful that the judges in the southern district and the eastern district would decide to continue the legal aid system which has been so successful. The great thing is that this bill permits them to do it. Thank you very much. Mr. CELLER. I know Judge Dimock has been very patient and other witnesses have been so patient. We will have to adjourn now until 2:30 and try to terminate this hearing his afternoon. (Whereupon, at 1:15 p.m., the hearing adjourned to reconvene at 2:30 p.m., the same day.) CRIMINAL JUSTICE ACT 99

AFTERNOON SESSION

Mr. CELLER. The committee will come to order. We will resume the testimony of our colleague, Mr. Battin. Mr. Battin.

STATEMENT OF HON. JAMES F. BATTIN, A MEMBER OF CONGRESS, FROM THE STATE OF MONTANA

Mr. BATTIN. Thank you, Mr. Chairman. Mr. Chairman, the omnibus stack of papers I have before me I do not intend to take the committee's time on reading into the record. But when it was first proposed early in 1963 that this Congress might be considering a public defender type bill, I took upon myself the task of writing a letter to the members of the Montana Bar Association, soliciting their opinion as to whether or not a public defender type system or the type system that was explained this morning by Mr. Picotte would be in the best interest, of not only the bar association, but of defense counsel in the State. I wrote, as a matter of fact, 508 letters to the members of the association and I was very pleased to receive back 274 letters which represent 53.74 percent of the members of the association. Of the letters that I received back, 235 or 85.7 percent of the members were opposed to a public defender system, but did favor the equivalent of what we have in Montana in the State court system. There were 6.3 percent of those that responded that favored some other type of system or no system at all. I bring this to the committee's attention for one basic reason. Montana is a far western State. It is not very heavily populated, but we have there what you might call a conglomeration of different potentials of the legal profession. You have the very small town lawyer who might be the only one in the town, and you have the larger bar associations that represent the larger city lawyers. And I think the percentage figures that I have just given would certainly indicate that there is not a great acceptance for a new Federal agency or a new system of the type that is suggested by some of the bills that are presently before the committee. I appreciated listening this morning to the questions presented by you, Mr. Chairman. One that I did not really fully comprehend, I guess, was the one as to whether or not, under the system that is proposed by the bill that I have introduced, as well as other bills, as to whether or not a defendant, perhaps in a racially distressed area, might have the same consideration as any other defendant. As I read your bill, it would appear that if the State in this judicial district did not want a public defender system, but would in fact accept a court-appointed lawyer to defend indigent clients, that you would be faced with the same problem that you yourself raised. I do not think that the appointing of a public defender would change him or put him in any different position than the Federal district ,court judge. Certainly, he is going to live in the area involved. He is going to be subject to the same pressure whether consciously or unconsciously, and I would like to associate myself with the remarks of Mr. Picotte 100 CRIMINAL JUSTICE ACT of Montana in saying that I have a great deal more confidence in the Federal judiciary than to believe they would yield to pressure, and I would further say that evidenced by some of the things that have happened in the Federal district courts of the Southern States justice will be done, and people will have an opportunity to be properly represented. Mr. MCCuLLOCH. At this point I would like to interrupt, Mr. Chairman. Of course, Mr. Battin, would not the U.S. district judge have control of his own obligations and his own oath of office, including the fact that he had a lifetime appointment, where a public defender would have a short time appointment as indicated in one of the bills of 4 years and would perhaps, to be currying the favor of the local political leaders? Mr. BATTIN. I could not add to that statement, Mr. McCulloch. The only thing that I can say is that perhaps the great success of the Federal judicial system is the fact that our judges by and large are very well qualified, and because of their lifetime appointments are not subjected to the pressures that many of those who hold office by popular vote find themselves. I would suggest, too, that in Mr. Picotte's statement, he pointed out that the present system-and the oath that we take when we are admitted to practice before the Federal courts requires us, if appointed, to represent a client. He suggests that the system itself is good-that the only drawback basically is the lack of compensation. I subscribe to that theory, but would carry it one step further, which I am sure this committee has heard before and perhaps has given some consideration to. A lawyer having to spend the time to defend an indigent client does so out of his belief in our system of government, but certainly, he is entitled to some compensation, if that in fact is to be the will and judgment of Congress. If it is not to be such, it might be well to consider as a possibility of using the same basic figures that have been discussed in one or two of the bills -here, a $10 or $15 an hour compensation, to be used as a charitable contribution for tax purposes, which I am sure most lawyers would be happy to do. For it would in effect have some basic differences on the income tax they pay to the State or pay to the Federal Government in their overall yearly operation. I do not like to think, and I am sure the chairman would agree, that the legal profession of this country has in any way let down on its sincere belief that all people, whether they can afford to pay or cannot afford to pay, have not received an opportunity to be represented when they are charged with a crime in our Federal courts in this country. I do not want to belabor my point. I think the figures that I have presented to you are accurate. They are here. They are based on letters that I have received from members of the Montana Bar Association. I think that if other members of this committee and other Members of Congress would also query the lawyers in their districts, they would find the same thing basically is true, and this bill, whether we want to admit it or not, is going to basically affect the lawyers as well as the defendants who are charged in the criminal proceedings in the Federal district courts. CRIMINAL JUSTICE ACT 101

With that, Mr. Chairman, if you have any questions I will be glad to respond. Mr. CELLER. Mr. McCulloch. Mr. MCCULLOCH. I would like to ask my colleague one question. By the word "compensation," you mean to include reasonable and necessary expenses of a person assigned to an indigent defendant, including expert witnesses and the like? Mr. BATTIN. That is true. I have had, and I am sure every member of the committee has had in past years, the pleasure of defending in Federal court, people who have been charged with crimes. Mr. MCCJLLOCH. Have you ever, as a lawyer, after appointment or request by competent legal authority, refused to accept such an assignment? Mr. BATTIN. I never have, and as long as our system prevails I never will refuse to accept such an assignment. I do not care whether you live in Montana or whether you live in New York or Ohio. Your problems are no different. You still have the basic problem of paying your overhead and providing a living for your family. Mr. McCULLOCH. Do you find in assignments in Montana that those counsel who are assigned are at least of average ability in the legal profession? Mr. BATTIN. I would go further. We are very privileged in Mon- tana to have two very fine district court judges, one of whom lives in my hometown and is former president of the American Bar Associa- tion, who, I am sure, if he were here, would testify in support of the chairman's bill. For he feels in Montana, that a public defender system is not necessarily needed, but some method of compensation is needed. He does not go to the newly licensed practicing lawyers; but on the contrary, depending on the gravity of the case, he goes much further and takes the best competent counsel that he can find in the community in order to make sure that the man has fair representation before the court. I am just informed by Mr. Picotte, and I can recall of an instance where both Judge Jameson and Judge Murray. who are the two Federal district court judges, will not let you refuse an appointment to defend an indigent as long as you have a license to practice in the Federal district court in Montana, regardless of who you are or what obligation might be. They feel, and I think rightfully so, that this is an obligation of the legal profession. Mr. CELLER. Thank you very much. Mr. Foley. Mr. FOLEY. Mr. Battin, in view of some of the testimony we heard this morning raising some apprehension about public defenders taking over all your Federal districts, would you care to comment on a possible amendment to the bill limiting public defenders to enumer- ated districts? In other words, permit the greater metropolitan areas to have a public defender if they see fit, but only in those districts. We say the southern district of New York or the southern district of California-they could have a public defender system if they saw fit, and any other district would not have that choice. Mr. BATTIN. My comment, Mr. Foley, would be this: This would be an improvement to the bill, although I am not sure at this point it will. I am not willing to give up the obligation of the individual attorney to see to it under our laws and our system that a man is adequately represented in court. 102 2CRTIINAL JUSTICE ACT

" I think'Mr. Whitener, one of our colleagues in testifying here this. morning, very vividly pointed out that not all U.S. attorneys are good prosecutors and certainly not all public defenders are going to be good defenders, and I am not sure that I would subscribe to a system that. set up a different system of defense in Federal court as a public defender system would. I do say, and you pointed out this morning, Mr. Foley, in talking about Wyoming being a one-judge district-Montana is a two-judge district. The State of Wyoming would fit in the congressional dis-- trict that I represent. So when it comes to talking about area and territory, I have a very vivid knowledge every 2 years of just how big it is. But now, what would happen in Montana? Montana is just one- district. It has two judges and let's say one judge, the senior judge in the district favored the public defender system and the junior judge- in the district did not. What then would the judicial council do or- what recommendation would be made-what recommendation would they be bound by? It might be good for one-half of the district, but not good for the other half. The district that I represent in Congress is about two-thirds of the- State. The other district is a third of the State. Yet, we would be- bound by the same rule of whatever judge who happened to have the senior capacity in that district decided would be in the best interests. of the State of Montana. Mr. FOLEY. Maybe we should have the district judge on the judicial council. Mr., BATTIN. That might not be a bad idea. Mr. CELLER. Thank you very much. Mr. BATTIN. If you have any more questions of Mr. Picotte he is, here and would be happy to testify. Mr. CELLER. The Chair would like to place a communication received from the Legal Aid Society of New York into the record. (The communication referred to follows:)

THE LEGAL AID SOCIETY, New York, N.Y., May 15, 1963. Hon. EMANUEL CELLER, House of Representatives, Washington, D.C. DEAR SIR: As secretary of the Legal Aid Society, I am pleased to enclose for your information a certified copy of resolutions adopted by the board of directorm of the society at its recent meeting on April 24, 1963. We shall appreciate anything that you can do on behalf of the public defender bill of legal aid societies as a possible alternate representative of indigent defendants. Here in New York and at various other areas throughout the country legal aid societies have demonstrated what effective work they can do to aid the courts in assuring indigent defendants the inalienable right to counsel to which they are- entitled. The high quality of the service of legal aid societies is particularly demonstrated in criminal trials involving a substantial number of defendants where the societies- often are able to arrange for counsel for the multiple defendants. Society is, of course, tremendously benefited by legal aid societies, a substantial part of the cost of which is raised by voluntary contributions of lawyers and other members of the public in their respective areas of work. Thus, all in all, it would be tragic if the advantages to the public were not able to be availed of by legal aid societies being included in the public defender bill a& a possible alternative representative of indigent defendants. Sincerely yours, HORACE B. B. ROBINSON, Secretary. Enclosure. CRIMINAL JUSTICE ACT 103

"Resolved, That in order to continue the long historical and fruitful relationship in the southern and eastern districts of New York of the representation by the Legal Aid Society of indigent defendants appearing in the courts in such districts, and in order to continue or permit similar relationships in Federal district courts in other parts of the country, the society respectfully recommends and urges that any public defender bill enacted Dy Congress include legal aid societies as one of the possiole alternative methods of assuring representation of indigent defendants in the courts in addition to the other alternatives of assigned counsel and public defenders; and "Resolved, That the secretary of the society send to the Honorable Kenneth B. Keating and the Honorable Jacob K. Javits, U.S. Senators from the State of New York, and to interested Representatives in Congress, a certified copy of these resolutions." The foregoing resolutions were duly made, seconded, and unanimously adopted by the board of directors of the society at its regular meeting held on April 24, 1963, and remain in full force and effect. [SEAL] HORACE B. B. ROBINSON, Secretary of the Legal Aid Society. Mr. CELLER. Our next witness is one who has been very patient, Judge Dimock. We think he is known all over the country for his erudition and scholarly learning. Very good to have you, Judge.

STATEMENT OF THE HONORABLE EDWARD J. DIMOCK, U.S. DISTRICT JUDGE, SOUTHERN DISTRICT OF NEW YORK Judge DIMocK. Thank you very much. Mr. Chairman and members, I would like to supplement what Mr. Picotte has said. But at the risk of repeating something that you heard from him, and something that perhaps some of you heard from me before, I would like to in advance beg your pardon, if I do that. I heartily support the provisions in the chairman's bill for the compensation of counsel appointed from time to time in criminal cases, especially by the court, as those cases arise. But I still more heartily oppose the provisions in the bill for the appointment and compensation of a permanently employed public defender. My personal view is that that is a bad thing and the mere fact that somebody would be permitted to chose this bad thing doesn't make me approve the bill as long as I do think personally that it is so bad. I think it is bad law and I think that it is bad statesmanship. The best existing solution for the problem of the defense of the indigent, I think, is the one which obtains in the Federal courts in the southern district of New York. It also obtains in Philadelphia, and what has been worked out there is a legal aid society or a voluntary defender system supported by the people. Under that system that functions in New York, we judges every time-we judges, in every single criminal case where the defendant can't afford counsel, we appoint the legal aid society as a matter of course. And the representation that the lawyers for that legal aid society give those defendants is so good that most of the people who falsely claim- most of the people who claim they are poor in order to get the services do it not with the idea of saving money, but with the idea of getting better lawyers. There is one thing that could be improved and that will be done if legislation is adopted for the compensation of counsel in the Federal courts appointed on a case-by-case basis. 104 CRIMINAL JUSTICE ACT

It often happens in criminal cases the codefendants have interests adverse to one another and the legal aid society in New York, with a delicacy that isn't shared by those who advocate the public defender plan, are unwilling to have lawyers with the same paymaster represent ,opposing parties, so the legal aid society will represent only one of them. So that we judges in order to find somebody else unconnected with -the legal aid society to represent the other, have to call upon members ,of the bar to serve without compensation. Now, as has been said before, this morning, that was all right in the old days when every lawyer was competent to defend a criminal case. But the defense in criminal cases has become a specialty. So that instead of spreading these assignments all around the hundreds of lawyers who practice in all parts of our court, we judges, in justice to the defendants, have to call over and over again upon the same members of the little group who are specialists in the trial of criminal cases. While as I have said, I believe the best way of dealing with this problem of the defense of the indigent is through the privately supported legal aid society, it can be dealt with on a case-by-case assignment basis provided provision is made for the compensation of the lawyers. Indeed, in most localities in the Federal courts they are getting along tolerably well on the case-by-case assignment system, even though they are notjpaid. That is such a burden upon the small group who are competent to take these cases, though, that provision ought to be made for payment of the lawyers. The privately supported defense organization is thus excellent, and the case-by-case assignment system, if publically supported, is reasonably good. But as I started out by saying the public defender system seems to me to be just wrong. It is bad law and bad statesmanship. It seems to me it becomes obvious that it is bad law when we reflect that a criminal case is nothing but a lawsuit between two parties, one of whom is the Government and the other is the defendant. If a man doesn't agree with me when I say that a litigant whose lawyer owes his appointment and his livelihood to the litigant's opponent is at a disadvantage, I have no common ground from which I can argue with him. There is no axiomatic proposition from which I can prove my thesis because the thesis itself seems to be axiomatic. If it requires exposition that a litigant is at a disadvantage if his lawyer is appointed and owes his livelihood to his opponent, I can't say anything more. Mr. CELLER. Do you think the public defender would not give his best to defend the indigent litigant? Judge DIMOcK. I am confident that he would not. Mr. CELLER. Give us the reason. Judge DIMOCK. Because of the arguments which are made in support of the public defender system by many of those in high places who support it. I think it was Mr. Picotte this morning- Mr. CELLER. The argument that I heard you make thus far is that they have the same paymaster, that is, the U.S. attorney and public defender would have the same paymaster. But when you have an assigned counsel and he is paid, you also have the same paymaster. CRIMINAL JUSTICE ACT

Judge DIMOCK. Not quite in the same respect, Mr. Chairman. If a man is assigned to a particular case and happens to displease that judge, he probably will never be appointed again. But that makes no difference to him. But a man whose livelihood-the man who owes his livelihood to the appointing power must please that appointing power. It is more than we can expect of human beings to be able to serve two masters and it is more than we can expect of human beings not to have their heart where their treasure is. Mr. CELLER. Of course, Judge, the appointing power has the right to terminate the employment of the public defender for cause, on page 4, lines 1 to 6, emploment to be terminated. On page 6- Such appointment, whether on a full-time or part-time basis, shall be for a term of 4 years unless sooner terminated by the judicial council of the circuit for incompetency, misconduct, or neglect of duty. If he does not represent the indigent defendant properly and competently, under that terminology, incompetence, misconduct, neglect of duty-which are very broad terms-he can be ousted from office. Judge DIMOCK. I think that the defect in the system is less palpable than those questions of incompetency and neglect and that sort of thing. It is a constant pressure of some force outside of the only force which ought to play upon the lawyer who represents a criminal defendant and the rights of his client. Mr. Justice Brennap. of the Supreme Court laid bare the dangers of the public defender system in a speech, I think, that was referred to this morning, but it is put so well that I am going to ask the permission of you gentlemen to read what he said: If a citizen opposes his Government, and the lawyers for both parties are paid by the Government, will the citizen get that fearless and resolute representation by his counsel which history proves is essential to the proper administration of justice? If Government-paid attorneys do this work, receiving their salaries from the Public Treasury, will that, despite its innocence, be the first step, the entering wedge, leading to a subservient bar, with all that such a bar foretells in its threat to individual liberties not alone of lawyers but of everyone? Strange as it seems to me, Mr. Justice Brennan's view is not shared by everyone in high places. Indeed, as you gentlemen well know, for many years- Mr. CELLER. Judge, I have not got the full statement. I do not know what you read that from. We have not got the full context. Was he not talking about legal aid societies there? Judge DIMOCK. It was in a speech, an annual meeting of the New York Legal Aid Society in 1957. He was extolling the legal aid societies as opposed to the public defender system. Mr. MCCuLLOCH. As a matter of fact, in that statement he very fluently laid bare the dangers of a public defender system, did he not? Judge DIniocK. That was the purport of every word I read. Mr. McCULLOCH. That was the reference that I read this morning and which was ordered to be a part of the record by direction of the chairman. Mr. CELLER. What is the date of that statement? Judge DIMOCK. 1957. Mr. CELLEI. I do not know whether we had a bill at that time of the type we are having before us this morning. We did not have a bill before us and I do not know how Justice Brennan would feel now 106 CRIMINAL JUSTICE ACT with reference to the bill that I have offered which gives the various options. The public defender, the legal aid society or a combination of all-all three. I do not know how he would feel about that. So I do not think that that statement could be correctly used in opposition for consideration of our bill. I think it is pretty far afield. Mr. MCCULLOCH. Mr. Chairman, if I may make this comment. I made it abundantly clear this morning when I referred to the statement of Justice Brennan, that it was made in late 1956 or early 1957 and the volume to which I referred carries this date. I had no desire, of course to indicate that this was a statement by Justice Brennan within the day or the week or the month that any public defender bill had been offered in the 88th Congress. Mr. CELLER. I did not mean anything like that, Mr. McCulloch. Judge DIMOcK. And as far as I was concerned, I cited it only as Mr. Justice Brennan's views in 1957 on this general subject. It certainly had no reference to this particular bill. Mr. CRAMER. So the record might be clear, is it not true that H.R. 108 of the 85th Congress had been introduced in 1957 and it contained appointment of public defenders or payment of compensation to counsel appointed in indigent criminal cases in the Federal courts? Mr. CELLER. I am speaking of H.R. 4816. Mr. CRAMER. I thought the chairman's point was that there was no legislation introduced or available on which he could have been commenting. Mr. McCULLocH. Mr. Chairman, if the gentleman will yield, I will be glad to comment on that. There has been legislation offered prior to that time on more than one occasion, as I recall, which did provide for a public defender system. There were no alternate proposals necessarily in that legislation, but as I take it, the witness is now, and as I was this morning, speaking about a public defender system, not particularly about a particular bill, but about the philosophy and political principles involved-not partisan political principles, either. Judge DIMOCK. It would seem strange to me that what I regard as Mr. Justice Brennan's views are not shared by all those in high places, and as you gentlemen well know, I think for a great many years the Chief Justices of the United States and the Attorneys General have advocated before this Congress public-defender bills and I regard it as a great demonstration of the good sense and love of liberty of the common man that that movement has never been successful before this Congress. In judging theeffect of this public defender scheme, we must bear in mind the theory of the Anglo-American system of justice. Ours is an adversary system. And the procedure-it proceeds on the belief that if the Government is represented by a lawyer who does the best he can for the Government, and the defendants are represented by the lawyer who does the best he can for the defendant, the truth will emerge. The court under our system does not act as an investigator as he does in the civil law countries, and ferret out the facts which are favorable to the defense. If the defendant's lawyer doesn't put up a fight for him, nobody else will. Every lawyer, beginning with the days when he first announces his intention to study law, has constantly been the target of the layman's taunting question: "How can an honorable man represent a defendant CRIMINAL JUSTICE ACT

when he knows he is guilty?" And the answer of every lawyer fit to be a member of the profession has been that the weighing of his .client's innocence or guilt is no part of a lawyer's duty; that the lawyer's duty is to see that, no matter how universally despised his 'client may be, he should be accorded every right and protection to which the law entitles him. Under the American system, the defense lawyer appraises the merits -of his client's case and expresses to his client his opinion as to his chances of acquittal or conviction. He perhaps tells him that he is likely to be convicted and that perhaps the sentence will be lighter if he pleads guilty instead of being found guilty by the court and jury after triaL But if the client elects to go to trial, that lawyer, no matter how low may be his estimate of his client's chances, goes into that trial with everything he has, to avoid the finding of guilty by the court and jury, the only tribunal short of God himself with a right to pass upon the guilt of that client. The Supreme Court now holds that representation by counsel is an absolute right in every criminal case and that means the American lawyer's traditional attitude, with an eye single to his client's interests. The client who can afford privately to retain counsel obtains for himself that single-minded representation. But the indigent defendant who has the public defender foisted on him is deprived of that, and the very arguments advanced in support of the public defender scheme demonstrate the truth of that assertion that the public defender's clients are deprived of single-mindedness-single-minded representation. For example, I would like to quote a very few short extracts from the statement which has been referred to, made by the Honorable J. Lee Rankin, then Assistant Attorney General of the United States before a subcommittee of this committee on March 30, 1955. He said: If the accused has no real defense, the public defender will honestly advise him to plead guilty, thus avoiding the expense and time of an unnecessary trial. That can mean only that the public defender, unlike privately compensated counsel will urge his client to plead guilty, even though his client wants to exercise his constitutional right to trial by a jury of his peers. The Assistant Attorney General's statement continues: Since the public defender is concerned solely with achieving justice, he may permit the accused to waive a jury-a decision which would operate to save great ,Government expense for juries as well as their time. That statement contains the clear implication that the public defender, as distinguished from privately compensated counsel, will be guided by some personal conception of justice, rather than his duty to do the most that he can for his client. In the past the American lawyer, in representing accused in criminal ,cases, has sought to obtain justice not by making his own decision as to the truth and acting accordingly, but by putting his whole heart and soul into the part that he plays in the process by which that truth is hammered out. The Assistant Attorney General continued by saying that the public defender "can make a contribution by eliminating technical objections and by refusing to resort to preliminary technical skir- 108 CRIMINAL JUSTICE ACT mishes, such as only make for delay and expense." Can you imagine Daniel Webster saying to his client, "I don't think I'll make that move for you. Some people might think it was technical, and besides, it would cause the Government delay and expense." My final quotation from the Assistant Attorney General's statement is the one that worries me the most. It says: In sum, the public defender system would promote justice, not defeat it. It would be his duty to protect the innocent but not acquit the guilty. It would be his duty to see to it that the guilty were punished but not punished beyond their merit. There you have the public defender scheme laid bare for exactly what it is, another arm of the Government to accomplish the punish- ment of those that it accuses of the commission of crime. Besides this acknowledged fact that it would be the duty of the public defender to see that his client was convicted if he thought that he was guilty, there is a more subtle danger in this scheme. Isn't it obvious that the last function that the people should turn over to the Government is the defense against accusation of crime? Even a prosecution for shooting migratory fowl is a lawsuit between the Government and the accused, and with the public defender representing the citizen, the Government would be employing and paying its opponent's lawyer. Now, in the ordinary case like that, the situation is bad enough. But think of the political case. I have in mind an instance that must be familiar to Congressman McCulloch. When the second-string Com- munists were accused in Cleveland in the Federal court with no provision for compensation of counsel, the Cleveland lawyers got together and made up a purse and hired some of the best men they had to represent those defendants. When they succeeded in getting some acquittals, an Assistant Attorney General of the United States was quoted in the press as saying that the Cleveland lawyers were Com- munist dupes. Now, suppose that that had been a public defender who was expected to represent those unpopular defendants? Where would he have been as a public servant? It is simply something that the .Government ought to keep out of and leave to the lawyers. It is just bad statesmanship of the worst kind. This country was founded as a refuge from tyranny. Can we be sure that no English- speaking person will ever again attempt to use the power of government to take away the liberties of the people? The ultimate in absolute power of a totalitarian government would be its control over the lawyers who ought to be representing those who have been accused as its enemies. If we take one step in that direction, will we not be faithless to the trust handed down to us by by those who built this country, as a bulwark against tyranny? If there ever was a need for us to take this step forward toward the totalitarian state, it no longer exists. Even those who advocate the public defender system admit that the privately compensated defense organization system such as we have in New York and Philadelphia is better. Up to now the excuse advanced for the advocacy of the public defender system elsewhere has been the difficulty in raising the necessary funds outside of those cities. That excuse has been taken away. The Ford Foundation has stepped into the breach and granted the sum of $2,300,000 to the National Legal Aid and Defender Asso- I CRIMINAL JUSTICE ACT ciation for the development of defense organizations. The plan en- visages ultimate local support for the private local organizations, initially financed by this grant. The excuse that we can't get support for the poor's defense anywhere except from the Government has been taken away, and surely there could be no worse time for the Government to pour funds into the defender system, the public defender system than at the very moment when the people are about to spend $2,300,000 on the development of private defense. Now, there were one or two things that were referred to before which I would like very much to touch on briefly. I have tried to present this as a matter of principle. But I can't help not letting go without making myself heard when suggestions are made that the public defender scheme always works perfectly. I made an address before the National Association of District Attorneys and a district attorney came to me afterward-he was in a metropolitan community and said that the public defender in his district had, in the 3 years that he had been in office, demanded a jury trial in only two cases, and that he, the district attorney, regarded the public defender as the the president of an organization for the filling up of prisons. There was some question as to whether the plan had ever been officially criticized, because of the representation of both sides. In the case of Hawk against Hann, decided in 1952, the U.S. District Court for the District of Nebraska released on habeas corpus a defendant who had been convicted of murder in the first degree when represented by a public defender. The court, in reviewing the matter said: Petitioner's animosity toward the public defender was only natural. The public defender was an employee of the State; the State was prosecuting petitioner. Petitioner indicates that he desired different counsel and generally speaking the defendant has a right to be represented by counsel of his own choice. That case is reported at 103 Federal Supplement 138 and quotation was from page 151. Mr. CRAMER. May I ask a question there, Mr. Chairman? Mr. CELLER. Mr. Cramer. Mr. CRAMER. That raises the point that I tried to bring out when the Attorney General was here this morning, and that is, if the alternative were chosen by the judicial council and district court for a public defender, that that would deny the defendant the right to a choice of counsel outside of the public defender. It seems pretty clear on all fours that the defendant should have the absolute right to refuse counsel, at least, does it not? Judge DIMOCK. The ultimate result was that the petitioner succeeded; that is, the court sympathized with him in his refusal to be represented by the public defender and said that he was entitled to his views and was not to be penalized for taking that attitude. With the committee's permission, I would like to file with the committee an address that I made before the New York State Bar Association which documents these views which I have been stating largely in principle and without citation. Mr. CELLER. You have our permission. Judge DIMOCK. Thank you.

21-022---63-8 110 CRIMINAL JUSTICE ACT (The address referred to follows:)

[New York State Bar Bulletin, July 1057]

NO PUBLIC DEFENDER SYSTEM FOR NEW YORK STATE 1 (By Edward 3. Dimock, U.S. District Judge, Southern District of New York) If any one of you has come here with the expectation that he would hear me -deny that there is room for improvement in the representation of indigent criminal defendants in New York he may step to the box office and one-half of the price of admission will be cheerfully refunded. My old friend, Orison Marden, and I don't even disagree on what ought to be done about it. I am sure that he would admit that, if every community would support a legal aid society and find a Florence Kelley to run it, the props would be knocked out from under every argument in favor of the public defender system. I wish you could see what happens in our court when one of the outcast penniless drug addicts who sell a few shots to raise the price of one for themselves is arraigned: He has waited outside the courtroom in a little bullpen with a lot of other abject creatures suffering the deepest misery. He hasn't been spoken to by anybody but officials for the last 12 or 15 hours. Someone calls his name and he is passed from one marshal to another into a great courtroom filled with people who seem to him to be looking at him as if he were just some raw material to be put through a mill. Then the judge asks him if he cats afford a lawyer and, when he say no, assigns the legal aid society. From then on everything is different. A smart friendly young man hears his story. It is probably a prepos- terous one and the legal aid man tells him that no one will believe it and that he is likely to get a more severe sentence if he stands trial and is convicted than if he pleads guilty. But the little man has picked up new courage from his friendly treaiment and insists on trial. That is the end of talk of a plea. From there on it is positively inspiring to see the fight that the legal aid boy puts up for that story in which he has no confidence but which may possibly be true. No one on the jury would ever dream that the lawyer had the slightest doubt as to the innocence of his client. The jury probably will find him guilty, but even so his guilt will have been passed upon by the only tribunal short of God himself with the right to do so. How different things are under the public defender system. There the defendant's innocence or guilt is passed upon by the public defender. That is no delusion of a fanatic; the advocates of the public defender system cite as one of its great virtues the fact that there will be more pleas of guilty. Deputy Attorney General Rogers has said: 2 "If the accused had not real defense, the public defender would be expected honestly to advise him to plead guilty, thus avoiding the expense and time of an unnecessary trial." Judge Lumbard has written: 3 "It would save time and money * * *. After thorough investigation, guilty persons would be encouraged to plead guilty and thus eliminate the necessity for many trials." Yes, "encouraged" was the word he used. "Delays and technicalities would be avoided with the result that * * * the community would be spared the expense of maintaining (defendants) for long periods of time in jail while they await trial." How would you like to be represented by a lawyer who told you "I don't think I'll raise that point for you. Some people might think I was being technical and, besides, the delay involved in raising it would put the State to extra expense"? Judge Lumbard evidently assumes that the public defender will do more "encouraging" of defendants to plead guilty than the court appointed lawyers do at present, for he says that the public defender will eliminate the necessity for many trials. The only reason that I can think of why a public defender would encourage more defendants to plead guilty than uncompensated counsel would be the fact that the public defender would consider the interests of someone other than his client. I am not talking mere ideology in suggesting preoccupation of the public defender with the guilt of his client. On September 23, 1954, the Supreme Court of Illinois, in People v. Morris,4 reversed the conviction in a criminal case

1 Address delivered at summer meeting, NYSBA, Saranac Inn, New York, June 29, 1967. 2 New York Times Sunday magazine, Apr. 21, 1957, p. 26. a New York Times Sunday magazine, Nov. 2, 1947, p. 17. 4 3 Ill. 2d 437, 121 N.E. 2d 810. CRDAEINAL JUSTICE ACT 111

,on the ground of the incompetence of a member of the staff of the public defender. Incompetence is bad enough, but the opinion reveals that it was the usual procedure at that time, and still is for all I know, to give a defendant a questionnaire to complete in prison without outside aid and send in to the public defender's -office as a basis for the preparation of his defense. That questionnaire actually asked the defendant if he was guilty' or not guilty of the crime charged-not "did you plead guilty or not guilty?" but "are you guilty or not guilty?" Can you imagine a worse way of preparing a criminal case than asking a defendant to wr e you a letter telling whether he is guilty or not? None of us knows whether a man is guilty or not until he has been found so by a court or jury and every man who is accused by the State has the right to ,submit that question to a court. For a defense lawyer to pry into the views of the defendant as to his guilt, as was done on the Chicago public defenders' questionnaire, can serve no purpose except to lay a foundation for an excuse to turn in his client. It is a perfect example to me of what happens when the defense lawyer, instead of being intensely partisan for the defendant, begins to feel that he has some obligation to the prosecution. Mr. Ellery Cuff, public defender of Los Angeles County, admits that the public defender will get more pleas of guilty than counsel who do not hold public office attempt to justify it when he says it is only because defendants but he seems to 5 tend to admit more to a defender who has an official relationship with the court. Defendants evidently trust the public defender with these confidences in the belief that he can get a better break for them than counsel who do not hold public -office. Mr. Cuff evidently shares their belief or he would not accept their confidences. Yet it is a denial of equal protection to give the ear of the court to the indigent defendant and deny it to the others. So, if the public defender does get a better break for his clients, the time when all defendants will be represented by public defenders is coming on apace. And that has been stated as one of the arguments in favor of the system. Prof. Newman F. Baker, of Northwestern University School of Law, closed an article in favor of the plan with these words: "The solution of the problem of the 'lawyer criminal' may ultimately be found in the abolition of private defense as far as may be possible constitutionally in much the same way that private prosecution has -given way to public prosecution." 6 The advocates of the public defender system treat this preoccupation with guilt .and this tendency toward the abolition of private defense inherent in the public defender system as mere disadvantages and say that its advantages will outweight them. What are merely disadvantages to them are abominations to me. I believe that we ought to endure anything before submitting to the loss of our liberties involved in surrendering to the state the function of defense against -accusation of crime. No evil could be so great as to justify the adoption of the public defender system for its eradication. Defense of those charged with crime is the last field that we should permit the state to enter. Once the State has -acquired power over the defense of those whom it accused, the power of the state would be absolute indeed. Nothing but the shameful apathy of the American people toward the function of the great organization that he heads would have induced Orison Marden to advocate-even with qualifications-a public defender system for New York State. I can understand his discouragement. With the example of the magnificent work of the Legal Aid Society in New York County before our country why do not its public spirited citizens support a similar undertaking in every city of the land? Don't they realize that the people have at least as great an interest in the defense of the innocent as in the prosecution of the guilty? Can't they see that, if the people don't support the defense of the indigent, the state is going to do it and, if we get the State into prosecuting and defending as well, our liberties are gone? Do you really think that the Smith Act defendants would have got an adequate defense at the hands of a public defender? If I were charged with a political crime and told that the State which charged me with plotting against it would, in its benevolence, furnish me with a lawyer to defend me, I would say "What is -this? Russia?" That is my idea of just exactly what Vishinsky used to tell the defendants when he was such a successful prosecutor in those purge trials in the early days of the Soviet. What public official could withstand the popular pressure for conviction of Smith Act defendants? When the Federal Government got down to the smaller a Remarks on "Operating Policies and Practices in Larger Cities," at the Defender Section of the 34th Annual Legal Aid Conference of the National Legal Aid Association at Denver, Colo., Oct. 10-12,1956. 6"The Public Defender's Work in Cook County," 25 Journal of Criminal Law and Criminology 6, 9. 112 CRIMINAL JUSTICE ACT fry in the Smith Act cases, the Communist war chest was exhausted and counsel had to be furnished to the defendants. The events under that necessity afford some of the most illustrious pages in the history of the American bar. The lawyers in Connecticut and Ohio taxed themselves to pay the ablest counsel obtainable. When they actually got two acquittals in Cleveland, an Assistant Attorney General of the United States was quoted in the press as saying that members of the Cleveland Bar Association were Communist dupes. If that is the way the State regarded independent counsel who were successful in the defense of a Smith Act case, where would a public defender have been if he had had the courage to do a similar job? If funds for the defense of indigent defendants are furnished by the State, the State which pays the piper can call the tune. Ideally, every cent that is expended for the defense of the indigent should come from the people and not from the State. When the defendane is called to the bar the bell tolls for each one of us. It is we the people who are being defended and we the people should pay for our own defense instead of looking to the very State that is prosecuting us, to pay for it. Where the public defender is appointed and paid by the State, we have a man who depends for his regular livelihood upon some appointing power, perhaps the electorate, perhaps the county board of supervisors, perhaps the judge or judges. Ought we to expect of frail humanity that that man will defend his clients un- influenced by thought of his daily bread? Suppose that he has to run for reelection, what will his platform be? The number of acquittals that he has obtained? Will a man's popularity at the polls be enhanced because he has succeeded in so many cases in frustrating the district attorney whom the electorate chose for the purpose of prosecuting and convicting the enemies of society? I think that a public defender would be more likely to be reelected if he ran on a platform of the number of pleas of guilty that he had entered on behalf of his clients. Certainly that is a favorite argument in favor of the system of those who advocate it. Suppose a public defender is appointed by a public body like the board of supervisors. Will they give credit for acquittals any more than the electorate? Suppose he is appointed by a judge or judges. Some judges prefer guilty pleas to trials. Will the judge-appointed public defender be able to stand up for his client's rights before such a judge when his livelihood rests on the judge's pleasure? Even the oft reappointed Thomas R. Robinson, the public defender in New Haven, has just had his appropriation cut down by action of the judges who have annually appointed him. Can a person appointed by any official of the State be a single-minded partisan for the people against the State? All of these questions the proponents of the public defender system attempt to answer by pointing to experience. They say that there are both good and mediocre men in both public and private defense and that there is no evidence that public defenders have done any more harm that private defenders. Our worry is not what harm has been done but what harm can be done. It can happen here. A government with totalitarian tendencies like Huey Long's, would find such a system an instrument ready for its hand. The danger inherent in such a perverted system is reason enought for its rejection. It is an invitation to tyranny. In invoking experience, the proponents of the plan cite the admirable work of Public Defender Robinson in New Haven and Public Defender George Nye in Alameda County, Calif. All that means is that any system will work if administered by archangels. We have no right, though, to stake the liberties of the people upon the correctness of our belief that public defenders will always be archangels. The Founding Fathers were unwilling to stake the liberties of the people upon any judgment that Federal judges would be archangels and so provided in the Constitution that their tenure and compensation would be secure. I don't believe you can trust public defenders any farther than you can trust Federal judges. And bear in mind that a Federal judge only has to be impartial as between his paymaster and the accused; the public defender has to be partisan against his paymaster. Just as the proponents cannot prove the public defender system good by pointing to Mr. Robinson and Mr. Nye, I recognize that I cannot prove the system bad by a few horrible examples, yet, lest you should get the idea that the defects that I have pointed out have no practical consequences, let me give two examples from the decided cases. First I remind you of the .Mforris case, already referred to. There the Illinois Supreme Court set aside a conviction because of the incompetence of a member CRIMINAL JUSTICE ACT 113 of the public defender's staff who had overlooked a statute which gave an accused ihis liberty if he was held in prison 4 months without trial. In Hawk v. Hann,7 decided in 1952, the U.S. District Court for the District of Nebraska released on habeas corpus a defendant who had been convicted of murder in the first degree when represented by a public defender. As some of the facts demonstrating that the petitioner did not have a fair trial, the court noted "the manner in which questionable issues of procedure, evidence, and instructions were allowed to pass unnoticed by both the public defender and the trial judge." In that case the State urged that the petitioner had waived the assistance of counsel by at first refusing to discuss his case with the public defender, but the U.S. court said: "Petitioner's animosity toward the public defender was only natural. The public defender was an employee of the State; the State was prosecuting petitioner. Petitioner indicated that he desired different counsel and generally speaking a defendant has a right to be represented by counsel of his own choice." There the court touched on one of the great defects of the public defender system. Even if the public defender is a partisan for his client, many defendants cannot believe it and it is almost as important that defendants shall believe that they are getting a fair deal as that they actually get a fair deal. The ideal solution of the problem is private support of a legal aid society. If that support cannot be obtained, the next best device is either State supply of adequate compensation and expense money for counsel assigned on a case-by-case basis or State subsidy of a legal aid society. The legal aid society with adequate private support has all of the advantages of the public defender system and none of its abominations. The lawyers who staff it ate under no temptation to do anything except what is best for the client. I cannot imagine a better system of defense of the poor than now exists in the State and Federal courts in New York County. The legal aid society is assigned to represent every indigent defendant as a matter of course. The society has an excellent board of trustees who have awakened the bar and the public to the necessity of private defense of the indigent so that there are ample funds. Posi- tions on its staff are adequately salaried and eagerly sought after. The able young lawyers who are chosen from the many applicants find themselves a match for the old pros from the D.A.'s office after a few months of carrying briefcases for the seniors. In Philadelphia and Boston there are voluntary defender groups which function almost exactly like our legal aid society and with almost as much success. The other permissible plans, State supply of funds for the case-by-case assignment of counsel, and the State subsidy of a private defense organization, have each the drawback that the paymaster is the very party that the lawyers are expected to oppose. Of course the influence of the moneybags is nowhere near as great' as in the public defender system. Under the case-by-case assignment system, a lawyer who has been designated for a particular case may forfeit his chance,for future designations if he displeases the judge but he won't lose his means of livelihood as would a public defender. A subsidized legal aid society may lose its subsidy if it displeases the holder of the purse strings, but its board of trustees will have developed a group of private supporters who will rally round in the emergency quite unlike any group that a public defender might have to back him up in a controversy with the State. The legal aid society in Rochester is excellently representing indigent defendants in the lower criminal courts under subsidy by a county appropriation under section 224(10) of the county law. The same system of the public subsidy of private defense will go into effect in Erie County this fall. Suppose though that one member of the board of supervisors should make a motion that no part of the appropriation should be used for the defense of anyone who availed himself of the protection of the fifth amendment, would any of the rest go on record against him? I think that we need the legal aid societies in order to give the indigent accused the defense to which they are entitled and, to a lesser extent, in order to defeat the menace of the public defender idea. You can thus imagine what a sad paradox it seems to me to have the head of this great national legal aid society himself advocate the turning over of the defense of the indigent accused to the State 7103 F. Supp. 138, 151. 114 CRIMINAL JUSTICE ACT

That might mean that the public defender idea would win by default because our team did not take the field. I do not lose hope, though. The odds have seemed to favor the public defender plan for a long time; yet it has made little progress. The city political machines are all for it because of the jobs it would create. Some of the oldsters like me may remember when Col. Mayer Goldman annually advocated it in this association until, to my regret, the association went on record. in favor of the idea in 1932. The American Bar Association in 1939 approved it for the Federal courts. For years it has been a pet idea of Chief Justices and Attorneys General of the United States. Yet only three States, Connecticut, Colorado, and Rhode Island, have statewide public defender installations. This is true despite the fact that Los Angeles- has had a public defender since 1913. For the last 12 years with only three exceptions, public defender legislation has been introduced and defeated in the legislature of this State. The Judicial Conference of the United States has supported public defender legislation for the Federal courts but a bill with this support languishes in the Committee on the Judiciary of the House of Repre- sentatives at present. The bill has been disapproved by the Committee on Federal Legislation of the New York County Lawyers Association although regarded as an improvement over the bills in the New York Legislature. I rejoice to that, despite the approval of the public defender idea by the Judicial Conference. and by the Chief Justices, Mr. Justice Brennan, at the annual meeting of the New York Legal Aid Society in February of this year, laid bare its dangers.8 The Judicial Council of Massachusetts in its 1956 report considered pending bills for the establishment of the public defender system. It marshaled the arguments against the system and stated that for those reasons it did not recommend the- plan. Instead it drafted and recommended a bill providing for the compensation of appointed counsel and the payment of their expenses.9 Arizona at the last two sessions of its legislature has defeated public defender bills. While on this record the support is impressive, the greater power seems to be in the opposition. Perhaps we are protected by the deep-seated but inarticulate- instinct of the people for liberty. As Emerson said in his Fourth of July Ode: "For He that worketh high and wide Nor pauses in His plan Will take the sun out of the skies Ere freedom out of man." Mr. MCCULLOCH. At the risk of detracting from what I thought was a most excellent statement by Judge Dimock, but by reason of the fact that I am likewise impressed by a statement that I had before me which I cannot claim to have written, I would like to read it into the record immediately following the judge's testimony. It is dangerous to a society's freedom to have both sides in a criminal action. administered by Federal officers. The fear of potential consortion is too great to risk interpretation. We need go no further than read the daily newspapers to comprehend this inherent distrust. State trials in the Soviet Union and in Eastern Europe are staffed on both sides by state-appointed and state- compensated officials. It is common knowledge among lawyers, at least, that for defense one can expect from a system of this nature, particularly in criminal trials bearing political overtones, is less than one could hope for. As various American citizens who have been tried by these courts as to their ratings of defense counsel and I believe the answer will sustain this statement. Of course, there is the political system which creates the legal climate rather than vice versa. But there is little to be gained and much to be lost in creating political institutions such as Federal defenders which contain the seed for a growth that could destroy that which is sought to be protected. 8 The Legal Aid Review vol 55, No. 1, p. 20. 9 Thirty-second Report Judicial Council of Massachusetts for 1956, p. 43. CRIMINAL JUSTICE ACT

(At this point Mr. Celler left the committee hearing room an4 Mr. Rodino assumed the seat of chairman.) Mr. RODINO. Our next witness will be Lawrence Burns of the Ohio State Bar Association.

STATEMENT OF LAWRENCE BURNS, ESQ., PRESIDENT OF THE OHIO STATE BAR ASSOCIATION, COLUMBUS, OHIO

Mr. BURNS. Mr. Chairman, members of the committee: I wish to express my appreciation for the invitation to testify before this committee. The executive committee of the Ohio State Bar Association adopted a resolution on April 19, 1963, approving proposed legislation providing for the adequate defense for those impoverished persons accused of crime and who, because of a lack of financial resources, cannot engage the services of a competent lawyer nor pay the expenses for- necessary investigations in locating and identifying witnesses, providing expert testimony such as psychiatric witnesses or other experts often required when essential to an adequate defense. About a generation ago, a famed Ohioan, Mr. Chief Justice William Howard Taft, observed- We must make it so that the poor man will have as nearly as possible an equal opportunity in litigation, as the rich man, and under present conditions, ashamed as we may be of it, this is not the fact. Judge Learned Hand observed, "Thou shalt not ration justice." In addition to the approximately 14,500 lawyers in Ohio whom I have the privilege of representing, the American Bar and many other bar associations throughout the United States have also adopted resolutions in favor of legislation similar to H.R. 4816. When I prepared this statement I assumed that there was considerable objection to the type of legislation that is being introduced in several bills here. After listening for the last 3 or 4 hours, I am pretty well convinced that most everyone agrees that we do need some type of legislation to protect the indigent person. Indigent persons-the indigent person is a word, however, that is used in disdain anymore. Now, in Ohio, as I said, we have some 14,500 lawyers and about 9,700 or 9,800 of them belong to the Ohio State Bar Association and are paid members and we do not have an integrated bar. I think that this bill adopts most of the recommendations that were contained in a report dated February 25, 1963, which committee was chairmaned by Prof. Francis A. Allen, of the University of Michigan Law School. Now, rather than go into all of the various statements that I have made here, I am going to ask the permission of the committee to file my written report and from then on I am going to have a few comments off the cuff about this matter. Mr. RODINO. You have that permission. 116 CRIMINAL JUSTICE ACT

(The prepared statement referred to is as follows:)

0HIO STATE BAR ASSOCIATION, Columbus, Ohio, May 22, 1963. Hon. EMANUEL CELLER, Chairman, Committee on the Judiciary, Washington, D.C.: To the members of the Judiciary Committee, first let me express my appreciation of the invitation of your chairman to testify before your committee. The executive committee of the Ohio State Bar Association adopted a resolution on April 19, 1963, approving proposed legislation providing for the adequate defense for those impoverished persons accused of crime and who, because of a lack of financial resources, cannot engage the services of a competent lawyer nor pay the expenses for necessary investigations in locating and identifying witnesses, providing expert testimony such as psychiatric witnesses or other experts often required when essential to *an adequate defense. A famed Ohioan, Mr. Chief Justice William Howard Taft, observed "We must make it so that the poor man will have as nearly as possible an equal opportunity in litigation, as the rich man, and under present conditions, ashamed as we may be of it, this is not the fact." Judge Learned Hand observed-"Thou shalt not ration justice." In addition to the approximately 14,500 lawyers in Ohio whom I have the privilege of representing, the American bar and many other bar associations throughout the States have also adopted resolutions in favor of legislation similar to H.R. 4816. A study was conducted by a committee of outstanding judges, law teachers, and general practitioners chairmaned by Prof. Francis A. Allen, of the University of Michigan Law School. Their recommendations are contained in the report entitled "Poverty and the Administration of Federal Criminal Justice" which was submitted to the Honorable Robert F. Kennedy, Attorney General of the United States, on February 25, 1963. H.R. 4816 embodies the recommendation of this special study. In Ohio, under our revised code, provision is made for the appointment of compensated counsel for the accused. We believe this has worked satisfactorily and in many instances because of the devoted work of counsel in defending "indigent persons," miscarriage of justice has been avoided. We also have the public defender system in many of our cities, just to mention a few, Cleveland, Colum- bus, Akron-Cleveland's public defender is partially supported by the United Fund. Statistics show that in cases in the Federal courts where uncompensated counsel has been appointed the percentage of guilty pleas is higher than where the accused is able to employ counsel. The reason for more guilty pleas is quite obvious, a lawyer appointed to defend an indigent is not provided with the necessary staff to conduct investigations, secure expert testimony, nor can he afford to take the time out from his practice .such as James Donovan did in the defense of Colonel Abel. In Cleveland, Ohio, the lawyers appointed to defend accused spies were engaged in trials that lasted for months, the lawyer's office expenses mounted up, family responsibilities continued. The lawyers engaged in providing such defenses are fulfilling the obligation of the United States which is shirking its responsibilities in not providing counsel. Failure to provide counsel is in violation of the sixth amendment to the Constitution ratified in 1791 which provides that "In all criminal prosecutions, the accused shall enjoy the right-to have the assistance of Counsel for his defence." Such failure also violates the right of a fair trial guaranteed accused persons by the due process clause of the 14th amendment to the Constitution. The Supreme Court, in the case of Gideon v. Wainwright, decided March 18, 1963, left no doubt that the right of counsel is fundamental and essential to a fair trial. In 1937 the Judicial Conference of the United States adopted a resolution calling for the appointment of public defenders and since that time the conference its recommendations or adopted similar recommendations. Every Attorney General since 1937 has urged adoption of legislation for the representation of the indigent accused. Notwithstanding the constitutional requirement to provide counsel, on May 6, 1939, the Honorable Warren Olney III summed up the situation in the following statement to the Judicial Conference: CRIMINAL JUSTICE ACT

"We have been attempting to meet the need by asking or requiring private persons in the legal profession to undertake the defense of the indigent and to meet this community responsibility without compensation and, for the most part, at their own personal expense. The unfairness of this to the lawyers involved is altogether evident. But there is good reason for believing that it may have been or at least is very likely to become unfair to the indigent defendant as well." In conclusion, and to summarize, it is my opinion that a plan of adequate compensation for lawyers performing defense services is an indispensable element of Federal legislation providing for a system of adequate representation. Private attorneys appointed by the Court should receive such compensation as may be approved by the Court at a rate not exceeding limits provided for by legislative action and, that such attorney should be reimbursed for the necessary expenses incurred in the performance of his duty, including the use of investigatory services, experts, transcripts, and the like. In the event the Judicial Conference should select the public defender system, the salaries should be determined by the Judicial Conference andishould not exceed that of the U.S. attorney. The options in H.R. 4816, providing for a combination of the public defender, legal aid associations, private attorneys or voluntary defender programs of bar associations, seems to be one method and, upon the enactment of such legislation, the United States will have fulfilled its responsibility to the "poor accused." Respectfully submitted. LAURENCE BURNS.

Mr. BURNS. Thank you, sir. Now, in Ohio, and I can only speak for the State of Ohio, because I am fairly familiar with the problems that we have. I think that the lawyers, rather than to be criticized as I heard this morning, for failure to defend, should be commended for their defense. I think the lawyers have subsidized the defense of the indigent prisoners for about 175 years, since the adoption of the sixth amendment to the Constitu- tion and it seems to me that they have done a real fine job and it is now time for the United States to shoulder its burden rather than the lawyers alone. We know you are familiar with rule 44 of the Federal Rules of Practice, which provides for counsel. However, . believe that the principal question that I have heard raised here as to whether or not we should have private counsel or as to whether we should have the public defender system. We have the public defender system which is partially supported in Cleveland, Ohio, by the United Fund. In other cities like Columbus and Akron, and I don't know how many others are, we do have the various legal aid and legal defender systems. I would say that they have worked very well in Ohio. I cannot say that a person accused of crime has not been adequately represented. I am sure there have been young and inexperienced attorneys appointed to defend. I think, however, that he has the guiding hand of the Lord, in the nature of the judge, who helps guide him in the trial of these cases, and I have been through a number of them and I find that the courts generally are very, very helpful to the younger lawyer when he finds himself in that position. Mr. MCCTLLOCH. Mr. Chairman. I am very glad, of course, to hear Mr. Burns testify since he is the president of the bar association of my home State and is personally acquainted with all the facts as they appear over a good many years. 118 CRIMINAL JUSTICE ACT

May I properly conclude that from what you have said, Mr. Burns, that the system in Ohio used in the State courts has worked reasonably well. Mr. BURNS. I would have to say that that is true, sir. Mr. MCCULLOCH. And as president of the bar association, or as another officer in the bar association down through the years, have you heard much complaint, if any, about counsel assigned and their performance in State criminal cases? Mr. BURNS. I probably in the last-I have been active in bar associations and the executive committee for the last 5 years and I think I have had two letters, one this year, of a prisoner who thought that he was not properly represented and I think most prisoners that are behind bars feel that they are not properly represented. Mr. McCULLOCH. And Ohio now has a population of approximately 10 million people? Mr. BURNS. That is right. Mr. MCCULLOCH. Has it been your experience that trial judges are wont to continually appoint inexperienced lawyers and lawyers lacking in ability of defense of criminals charged under Ohio law? Mr. BURNS. I think our courts are more prone to try to secure the services of experienced counsel. Mr. McCULLOCH. Have you ever served as a defense counsel by assignment? Mr. BURNS. Yes, I have. As a matter of fact, when our own court heard that I was going to testify they asked me if I would defend somebody next week and I have accepted that charge. Mr. McCULLOCH. If adequate compensation, including all reasonable and necessary expenses were made available to counsel assigned in Federal cases, would that in large part, if not entirely, meet the opposition to the conditions which we now find in the Federal courts? Mr. BURNS. I think adequate compensation-however, I am dis- appointed in the amount of the so-called maximum fees that are set forth in the present bills. I am fairly sure there are very few Con- gressmen who makes less than $15 an hour for the number of hours they work and lawyers who have their offices to maintain at $5 an hour, and that is an actual experience of my own office. I am in a small office in a small city and if we don't make quite as much as the plumber does after paying expenses, the compensation is inadequate. I think the amount as set forth in certain of the bills would be inadequate to compensate attorneys who take their time off from their offices. Mr. MCCULLOCH. There are these factors involved in the rates that were suggested in the several bills and I suggested none of them, of course, and that is, that the compensation provided and discussed was not necessarily thought as adequate compensation or as full compensation, but such compensation that a member of the profession who owed so much to it and to his country might not be too badly hurt financially by that compensation. You know, Mr. Burns, we are confronted with the condition down here, that maximum salaries, maximum figures soon become minimum figures. And that fact is particularly troublesome to so many of us. CRIMINAL JUSTICE ACT 119

But that question of the figure per hour or per day is one that can be :adjusted and I am glad to have your comments. Mr. BURNS. The question as to whether the public defender system has been certainly the most discussed problem. I couldn't be in a position to say that a public defender would not aptly perform his job as may have been stated. I think that a lawyer takes his oath .of office-and I have more confidence in the lawyers that they are going to do it whether public defenders or private counsel. However, I do feel that private attorneys certainly will add their share as well as the public defender system. Mr. MCCULLOCH. By the way, Mr. Chairman, I would like to read this self-serving declaration, if I may, that has just been pointed out to me by our very able counsel. I quote from "The Representation of Indigent Criminal Defendants in the Federal District Courts," from the Harvard Law Review of January 1963. Many States have established rates which appear extremely inadequate [justi- fying your statement, Mr. Burns] but a few provide reasonably liberal compen- -sation. An example of the latter group is Ohio, where there is no upper limit for cases of murder and manslaughter in the first or second degree, and where counsel can obtain up to $300 and expenses in cases involving other felonies. I am very glad to have this statement because it is further proof that if we embrace this system which has worked so well in so many States, that these matters can be adjusted in the sound discretion of the judges in the Federal courts. Mr. BURNs. That is provided for in revised code section 2941.55 .and I might add in response, a little further elaboration on the question you asked me-I did have a criminal case-murder in the first -degree that I had been assigned to defend and one of the problems- as was pointed out-the county commissioners in our State sort of control how much they will let the judge pay-I think it is a $500 fee in our county, to defend a first degree murder case, and $300 on lesser felonies. Mr. RODINO. I conclude, Mr. Burns, from your testimony before the committee, that you recognize that most people who have appeared here have indicated that there is a need for some system, and the question is, just what system should we employ. I am happy to hear your statement I would like to ask this question. Is it not an important and vital element of adequate representation the preliminary or investigative or factfinding services that go into the conduct of a trial? Mr. BURNS. I think that is the most important part, really. You cannot adequately defend a person accused unless you have had the -opportunity to investigate the facts, and a man who is incarcerated and cannot post bond, you have a very difficult time of investigating the facts with him because he is always concerned about maybe they have -got the cell bugged, and I am not sure they do bug it, but I have heard it is done-you rarely get the facts from the person accused of the crime-maybe because of his intelligence, maybe because he has no confidence-unless he can come to your office and discuss the matter- and I believe the problem of bail is equally damaging to the administration of justice when high bond is set. 120 CRIM NAL JUSTICE ACT

Mr. RODINO. We heard the Attorney General testify this morning that in a very vital case only recently, and he read from one of the reports, that the defendant was unable to secure the necessary witnesses and necessary factfinding services and there was no money available to do this. Certainly, this is not equal with the proper carriage of justice. Mr. BURNS. It is as equally as important as the appointment of counsel to provide the investigation. Mr. RODINO. Mr. Burns, I would like to read at this time into the record-it was pointed out by the chairman of our committee before he left here, and he thought that these excerpts are noteworthy from the Harvard Law Review of January 1963, "The Representation of Indigent Criminal Defendants in the Federal Courts," and I would like to read these pertinent paragraphs: A feature apparently common to all selection systems is the frequent use of young lawyers with little experience. Although 90 percent of those replying to the questionnaire considered the experience of assigned counsel adequate, almost three-fifths said that the lawyers assigned are usually young and relatively inexperienced. More than three-fourths of those replying indicated that assignments are not confined to attorneys with experience in criminal law, and about two-thirds of the districts represented do not require trial experience of any kind. But most judges do attempt to obtain an experienced trial lawyer for particularly serious or difficult cases. And again, A large majority of the persons interviewed estimated that about 90 percent of the defendants appearing in their district plead guilty. It appears that the percentage of guilty pleas among indigents is higher than among other defendants. On page 596 of' the same Harvard Law Review, under "Overall Evaluation of the Present System," I quote: There are many aspects of the present uncompensated assignment system which would appear to inhibit attainment of the ideal of providing adequate representation for each indigo-nt defendant. A prominent defect is the dependence upon young, inexperienced lawyers for all but the most difficult or serious cases. The typical assigned counsel is little versed in the technicalities of the criminal law or the questioning of accused persons, and has had little if any previous courtroom experience. Another weakness of the present system is that district judges must occasionally expend considerable time and effort to obtain counsel for indigents. In addition, the nuisance of obtaining counsel and the understandable hesitancy to impose too frequently upon lawyers may induce some judges to accept an excessive number of waivers of the right to have counsel appointed. Mr. MCCULLOCII. Mr. Chairman, so that those who desire may make their own evaluation of all the facts which are set forth in the Harvard Law Review, I would like to now read to you from the report of the Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice. It bears the date of February 25, 1963, and I quote from page 25:

QUALITY OF APPOINTED COUNSEL Generalizations as to the competency of lawyers appointed in the more than 90 Federal district courts must inevitably prove fallible. The Committee has collected numerous expressions of opinion on this matter from persons familiar CRIMINAL JUSTICE ACT with the administration of criminal justice in particular Federal districts. As might be expected, there is considerable divergence in the views expressed. As mentioned above, many observers expressed the opinion that assigned counsel often possess ability and dedication superior to that displayed by lawyers sometimes retained by ,defendants possessing limited means. On the basis of its own observations, the Committee believes that such is the fact in a significant number of instances. And from the same report, on page 28, to which I referred this morning, with respect to the number of people who plead guilty when they are represented by counsel assigned, I said I did not believe that there was any real basis for correlation between the statistics. I think the report of the Attorney General's Committee justifies that statement. I quote from page 28 of that report: Any effort at statistical demonstration of the inadequacies of a system of representation must inevitably confront serious difficulties. And it goes on to describe in detail those difficulties. Mr. Chairman, I have already requested that this entire paragraph be put into the record at the proper place this morning and I will not take the time to repeat it. So again, I say, Mr. Chairman, we have the article from the Harvard Law Review, written, as I take it, largley by a student, and we have the quotations from the report of the Attorney General's Committee. Mr. CRAMER. Mr. Chairman. Mr. RODINO. Thank you, Mr. McCulloch. I appreciate your calling our attention to those quotations. I would like to note that the Attorney General testified today, in summarizing the report, stated that after nearly 2 years of study the Committee concluded that our Federal courts are seriously handicapped in administering criminal justice when defendants without funds are involved. Of course, I suppose we will have to leave it to each one to evaluate the quotations and summarization of the Committee's report. Mr. MCCULLOCH. Yes, Mr. Chairman, I have already agreed with that two-line summary of the Attorney General. Mr. CRAMER. Mr. Chairman, may I ask a question? Mr. RODINO. Mr. Cramer. Mr. CRAMER. This question of competency of counesl. To me it stands out throughout this proposed bill-I presume you are familiar with it. Mr. BURNS. I have read the bill, yes, sir. Mr. CRAMER. No place is there any definition of counsel relating to experience and qualification, competency, or anything else, in this bill. Mr. BURNS. As I recall, there was a statement of how a public defender must have 5 years' experience--someplace in some of these bills. It may be it is not in this report. It is recommended. It may not be in this bill. Mr. CRAMER. The bill that is before us by the chairman of the committee, referring to page 3, line 16, "The U.S. Commissioner or the court shall appoint separate counsel- The U.S. Commissioner or the court, if satisfied after appropriate inquiry that the defendant is financially unable to obtain counsel, shall appoint counsel to represent him. 122 CRIMINAL JUSTICE ACT There is no definitive word describing "counsel." There is no such word used as, "shall appoint competent counsel." When it comes to. the appointment of public defenders as appears on page 5, there is no. qualification requirement, even for a permanently 4-year appointed public defender. Do you not think that there seems to be some dis- agreement about, which, if it does exist, that certainly this bill does not cure that situation at all? Mr. BURNS. I would have to agree with the Congressman, those are- facts, but on the other hand, I believe that you must take an examination to practice before the Federal courts-at least I had to take one.. I don't know whether that rule has been changed or not, and I think that the court would not appoint someone who has not taken the examination. I would have to assume that the lawyers are appointed- the ones who are appointed, are competent practitioners, and I think that as far as youth is concerned, I think we are having an upsurge of youth being more capable than perhaps some of us with a few bald spots on the back of our heads, and I think there are some darn good- trial lawyers in the youth who, I hesitate to say, are not competent counsel. Mr. CRAMER. The report in the Harvard Law Review indicates: that there were not enough competent attorneys in criminal la wto,- properly represent the defendants involved. Mr. BURNS. I did not go to Harvard. Mr. CRAMER. I will have to apologize for doing so, I guess. But the- point is, the bill itself offers no qualifications. Mr. BURNS. I agree with you. Mr. CRAMER. Even for a permanent defender. The defender system contains no requirement for qualifications as to practice on criminal matters and practice before the Federal courts. He could never- have had a case in the court and still be appointed. Mr. BURNS. That's right, and I-not that I see that is a real hazard. There are many young lawyers who have the qualities to try a case because of their recent legal training than maybe some of the older practitioners who have been handling wills for 75 years or some such matter instead of practicing law, and I don't belittle the abilities of theM ir.younger lawyers to try cases. CRAMER. I agree with that wholeheartedly. Without a defi-- nition contained in the bill as to qualifications of counsel, the same risk exists as has existed in the past. How does this bill cure that risk? Mr. BURNS. It does not cure the problem of appointing younger- counsel. It does cure the problem of seeing that there is adequate- representation because of the time that counsel may devote to a case for a defendant. Mr. CRAMER. As I understand the purport of your testimony, do you or do you not support the public defender approach as proposed' as an alternative? Mr. BURNS. With certain limitations as to the areas where the private counsel could not act, maybe the public defender, after listening to the testimony today, might, in certain populous areas, be an- answer to the problem. Mr. CRAMER. But you would not like it for Ohio? CRIVIMAL JUSTICE ACT 123

Mr. BURNS. I don't think we would like it in all instances for Ohio. As Judge Paul White stated the other day, the biggest law school in Ohio is Joliet Prison, because the prisoners are allowed to have their own law library and there are no-well, there are more typewriters out there than they can use and we do not have an unauthorized practice problem because these fellows will be out one day. Mr. RODINO. Thank you. Mr. MCCULLOCH. Thank you very much for coming down from Ohio.

REMARKS AND VIEWS OF MR. ROBERT E. BOYD ASSISTANT ATTORNEY GENERAL. OF OHIo Mr. Chairman and gentlemen, in appearing here today I come representing the Honorable William B. Saxbe, attorney general of Ohio. The main purpose of my coming is to request that both of the two bills presented, Senate bill No. 63 and/or Senate bill No. 1057, make definite and certain in specific terms to the end that the courts, the public defenders, the public, and each and every person accused or incarcerated, know that this proposed legislation and the resulting. law does not permit the use of the proposed Federal court public defenders in filing and processing writs of habeas corpus, in trying to free the accused or inmates of mental or criminal institutions. The statistics of the office that I represent show that as of April 8, 1963, there were pending 127 habeas corpus cases, of which 30 were in U.S. courts all the way from U.S. Supreme Court through the circuit court of appeals to the district courts. In the year 1962, this office defended against 680 habeas corpus cases and the- only ones lost were those cases in which the insane criminals recovered sanity and were returned from a mental institution to the Ohio Penitentiary, together with one case where the convicted inmate was found to have been held a short time- beyond his sentence through confusion in his sentences being concurrent. A forecast of 800 cases has been made for 1963. Those familiar with the law and legal terminology, will, on reading the bills, quickly realize that in strictly construing the proposed legislation it does not permit the filing of habeas corpus by public defenders for the reason that their- activities are limited to criminal cases in U.S. courts, and habeas corpus is a civil action for procedural purposes or a quasi-criminal matter as stated in recent decisions, Ex Parte Tom Tong, 108 U.S. 556; 27 L. ed. 826;.2 S. Ct. 871; Smith v.. Bennett, 365 U.S. 708; L. ed. 2d 39; 81 S. Ct. 895. It is a field of nebulous uncertainty that we seek to clarify by a specific statement within the proposed law itself. While it is fully realized that writs of habeas corpus can be filed in the Federal: courts by State-detained prisoners only after the convict or prisoner has exhausted his remedies within the State courts, time has shown that there is a definite pattern in the insane or convicted prisoner actions. In many instances, the writs are filed in the probate court of a given county and upon rejection thereof, the accused follows a step-by-step pattern of filing in the common pleas court, thence, another writ in a court of appeals in Ohio,, and upon rejection in that court, a writ is filed in the Supreme Court of Ohio; and in several instances, the prisoner or accused has repeated the pattern within the short space of time of, say, 1 year. On rejection of the writ of habeas corpus by the highest State court, they then file in the U.S. courts. If. by inadvertance, misunderstanding or otherwise, Federal public- defenders filed or participated in after-the-fact filings of those attempting to invoke the jurisdiction of a Federal court, the workload in this office would be more than doubled in the actions of the accused filing in all of the State courts with an attempt to finally reach a promised land of Federal jurisdiction with a Federal public defender representing and prosecuting their case. The most recent and outstanding case of this type is of a well-known and notorious criminal from the Al Capone era, having been in the Ohio Penitentiary for 29 years, now files a presently pending writ of habeas corpus in U.9. District Court, Southern District of Ohio, Eastern Division. This man was convicted of first degree murder for the killing of two. persons. and possibly being involved in the death of one or two others, and, missed being. 124 CRIMINAL JUSTICE ACT executed in the electric chair by a very small margin. He now alleges that the indictment upon which he was convicted was faulty and not according to law. Rumors reaching this office state that there is $100,000 available for any lawyer who can get this man out of the penitentiary. When added to the fee of $100 a day or $15 per hour that might be payable to a public defender to represent this man, this could cause quite a scramble for position of being appointed as a public defender to assist him. The fees payable under the terms of this bill would make positions rather attractive at either the $100 per day or $15 an hour. It is strongly urged that there be incorporated in the bill a prohibition denying those accused who are able to afford bail, the right to the services of a public defender. The local courts have adopted such a rule and find it quite equitable in that if the individual has money to obtain a bail bondsman, then, and in that event he has friends, relatives or influence enough to afford an attorney. As an attorney with 37 years' of practice with a reasonable percentage of it having been in the field of criminal law, I have never seen an instance where an accused, who at the time of arraignment or prior thereto, requested the appointment of a defense counsel, and was denied the same by an Ohio court. Ohio law in this matter section 2941.50, Revised Code, is as follows: "After a copy of an indictment has been served or opportunity had for receiving it, the accused shall be brought into court, and if he is without and unable to employ counsel, the court shall assign him counsel, not exceeding two, who shall have access to such accused at all reasonable hours. Such counsel shall not be a partner in the practice of law of the attorney having charge of the prosecution. A partner of the attorney having charge of the prosecution shall not be employed by or conduct the defense of a person so prosecuted." Section 2941.51, Revised Code, further states: "Counsel assigned in a case of felony under section 2941.50 of the Revised Code shall be paid for their services by the county, and shall receive therefor: "(A) In a case of murder in the first or second degree, and manslaughter in the first and second degree, such compensation and expenses as the trial court may approve. "(B) In other cases of felony, such compensation as the trial court may approve, not exceeding $300 and expenses as the trial court may approve. "The fees and expenses approved by the court under this section shall be taxed as part of the costs. "The county auditor shall draw his order on the county treasurer for the payment of such counsel in the amount fixed by the court, plus expenses as the court may fix, and certified by the court to the auditor." It will be noted that in the serious cases the court can fix such fees as will compensate for appeal. With the fees payable in the proposed legislation, it may be firmly stated that the same will bring about such spirited defense that it might be ruled that the legal terminology of "champerty" or "maintenance" could be applied to some of the defenses made and duration of trials thereof. It is believed that this committee would be on far more safe grounds if a fixed schedule of fees for different types of crimes were to be made available for the U.S. Commissioners and/or the Federal courts to the end that appointments of defense counsel are made from lists of attorneys who will accept the appointment to defend, based on the predetermined schedule of fees adopted for the original trial and review by the higher courts. The per diem and per hour pay basis proposed will substantially increase the litigation and the requirements of the U.S. district attorneys to augment their criminal staffs to oppose such increased litigation. The potential in costs per case to the U.S. Government is astronomical. It has already been pointed out that the courts of Ohio have adopted a uniform schedule of fees which must be augmented if a long trial is incurred in murder or manslaughter cases. Again stating the position of this office, it is our desire and hope that this honorable committee will see fit to limit public defenders in their activities so that they may not go beyond the final judgment in the cause for which they are appointed, and that public defenders will not be made available in matters of habeas corpus in the U.S. Supreme Court, being a court of original jurisdiction in habeas corpus. Mr. RODINO. Our next witness is the Honorable Sylvester C. Smith, Jr., president of the American Bar Association. Mr. Smith. CRInINAL JUSTICE ACT 125

STATEMENT OF HON. SYLVESTER C. SMITH, JR., PRESIDENT OF THE AMERICAN BAR ASSOCIATION

Mr. SMITH. I have two other representatives of the American Bar Association. I might introduce Mr. John W. Cummiskey, chairman of the standing committee on legal aid work and Mr. James R. Stoner, chairman of the junior bar conference. Mr. RODINO. Mr. Cummiskey and Mr. Stoner, you are both very welcome and I would like to say that I am delighted to welcome my very good friend, Sylvester Smith, who is president of the American Bar Association and a very esteemed citizen of our State of New Jersey and who has a distinguished record at the bar and as a good, American citizen. We welcome you here and we welcome your testimony before this committee. Mr. SMITH. I have a prepared statement which I ask to be put in the record. Mr. RODINO. Your statement will be inserted in the record. (The statement referred to follows:)

STATEMENT BY SYLVESTER C. SMITH, JR., PRESIDENT OF THE AMERICAN BAR ASSOCIATION, IN SUPPORT OF LEGISLATION WHICH WOULD PROVIDE ADEQUATE I)EFENSE FOR THE CRIMINALLY ACCUSED IN THE FEDERAL COURTS

Mr. Chairman and members of the committee, I am the president of the American Bar Association. I speak on behalf of the association in strongly advocating enactment of letjislation which would provide adequate legal representation to all criminal defendants in the Federal courts, regardless of financial resource. The American Bar Association for years, dating back to the 1920's, has fostered and developed the legal aid concept. The association has considered legal aid to the poor and unfortunate as indispensable to the effective administration of justice. From 1921, when the association's committee on legal aid work was made a standing committee, until the present day, the organized bar has been attempting to meet the challenge by providing legal service without compensation to those who cannot afford to pay. Historically, the emphasis on legal aid work has been on the civil side, although even in the earliest days many more criminal cases than generally supposed were handled by legal aid organizations. There were thousands of cases of abandonment, desertion, nonsupport, and illegitimacy. Lack of funds prevented the private legal aid agencies from extending full service to poor persons accused of crime, and this remains true today. In 1936, and again in 1937, the association's committee on legal aid work pointed to the problems existing in the Federal courts and suggested remedial legislation as a proper solution. Then in 1938, the Supreme Court of the United States looked to the language of the sixth amendment of the Constitution and held in Johnson v. Zerbst, 304, U.S. 458, that every defendant in a Federal criminal trial had the right to legal counsel unless he expressly waived that right. The following year, the American Bar Association, by a resolution of its house of delegates, approved in principle the establishment of a system of public defenders in the Federal courts. The defense of those unable to pay was no longer only the responsibility and moral obligation of the bar; it had become the responsibility and obligation of the whole society. By the mandate of the U.S. Constitu- tion, a criminal defendant in Federal court was legally entitled to the right to counsel. Without that right, any judgment against him was void. In 1946, the U.S. Supreme Court promulgated rule 44 of the Federal Rules of Criminal Procedure which states: "If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceedings unless he elects to proceed without counsel or is able to obtain counsel." Nothing, however, was done by the Congress to provide some form of compensation for what was clearly a Federal requirement. 21-022-63- 9 126 CRIMINAL JUSTICE ACT

No provision for compensation was made for even out-of-pocket expenses by the assigned lawyer defending the indigent in the Federal courts; nor were funds provided in any way for investigation or other services rendered in preparation of the defense. The American Bar Association acted again in 1958 when its board of governors approved proposed Federal legislation, specifically, H.R. 108 of the 85th Congress, which authorized appointment of public defenders or the payment of compensation to counsel appointed in indigent criminal cases in the Federal courts This legislation was supported by the association at House of Representatives hearings in 1959. Speaking for the association were leaders of the junior bar conference who spent weeks documenting case histories of unfairness to indigent defendants and their assigned counsel because of lack of funds. Our American way of life was established on the premise that every man Was equal before the law; and it is a necessary corollary that no man, faced with criminal prosecution, shall be denied his legal rights because of lack of funds. Today the goal of the organized bar is that adequate legal assistance be provided to all persons accused of Federal criminal offenses. Lawyers are performing this public duty at this very hour in courtrooms throughout the land. And they shall continue to do so. But without any form of compensation the lawyers assigned by the court simply do not have the resources to meet the challenge of the Government prosecution with its staff and investigative services. As zealous and talented as his unpaid assigned lawyer might be, without investigative services it is unfair to the defendant when the assigned lawyer meets with the well-prepared forces of the Government prosecution. Although the sixth amendment of the Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right * * * to have the assistance of counsel for his defense," it hardly seems possible to comply without adequate financial provision to prepare a defense. Lawyers throughout the country give generously of their time and money to represent indigents in civil and criminal matters. This always will be accepted by the bar as its public responsibility. But, there is no reason why the entire cost of the equal administration of justice should be foisted upon members of the bar. At its February meeting, the association's house of delegates unanimously adopted a resolution approving in principle legislation by the Congress to give the district courts an option to select the most suitable plan to provide effective legal assistance to poor persons accused of Federal criminal offenses. The proposed Criminal Justice Act embodies these principles and the association urges prompt enactment by this Congress. Mr. SMITH. I will summarize. Fundamentally, the goal of the American bar, the organized bar, is that adequate legal assistance be provided to all persons accused of Federal criminal offenses. That is our goal. Now, lawyers this day are appearing in courts throughout the land. In New Jersey where we use the voluntary system counsel are appointed by U.S. district court judges and are serving the courts. In my law department of the Prudential two men are now assigned. They are experienced men. They are not inexperienced. Without any form of compensation the lawyers assigned by the court, simply did not have the resources to meet the challenge of the prosecution. Even though they were zealous in performing their legal duties, without investigative services, when the assigned lawyer is met with all the prepared forces of the Government prosecution, they cannot meet it adequately. This proposed legislation does something to relieve the responsibility which has been assumed by the bar and, unfortunately, in my opinion, it has been performed without full and adequate service to the indigent defender. The proposed legislation provides compensation for the assigned lawyer which is, of course, small and we only partly repay him for the work, but it also provides more importantly compensated investigative services. CRDMNAL JUSTICE ACT 127

I might suggest in that connection, that perhaps the bill might be strengthtened so as to require court approval for those services. - The other features of the proposal that we approve of, in the American bar is the fact that the choice of plan is optional. The legal services rendered by the legal aid and by the bar associations have been extensive. In Los Angeles, for instance, the Los Angeles Bar Association has prepared a panel of men of varying experiences, mostly greater experience than the average, and from that panel the court selects and names and assigns counsel and the bar association at its own- expense has provided a mininum of compensation. That is one of the methods whereby the courts' administration of the law, if enacted, will be helpful. But I want to say to the committee that what we have done and pressed for is to get action, to make realistic through, proper legislation such as is embraced in the bills before this House and in the Senate, so that we will have adequate and effective representation'by counsel of those accused of crime in the Federal courts. That is the goal. The different districts may assume different methods of providing this service and the large metropolitan cities--sometimes they will use the legal aid service and in the eastern district of New York, I think, a district might very well adopt a different system because it is concentrated. In New Jersey, where we have the court sitting in different parts of the State and we have for many years had the assigned counsel system, I think, and our bar would urge the judicial council and the district judges to continue the voluntary system. I hope they are compensated in some small way because if they are compensated, I think you will find many more experienced men who will undertake the defense. I cannot agree, Mr. Chairman, that these young lawyers are not giving proper defense. I have been in court myself; I watched them and I want to say that they are well trained and that many of these men fight harder for their indigent defendants in the State courts and in the Federal courts than some of the older men who are annoyed by the assignment by the court where they haven't any investigative facilities. I want to defend the young lawyer because I know in New Jersey our lawyers are devoted to the profession and I might also say that I have never known and I have asked our district court judges if they had ever had any of the members of the bar decline an assignment and I was told by Judge Meany that except where there was an extreme conflict, lie never had anyone who had rejected the assignment to defend an indigent person charged with crime in the Federal court. I would like to ask, before you ask questions, to have Mr. Cuin- miskey speak, who will speak for the legal aid committee of the American Bar Association. Mr. RODINO. Mr. Cummiskey.

STATEMENT OF JOHN W. CUMMISKEY, CHAIRMAN, STANDING COMMITTEE ON LEGAL AID WORK, AMERICAN BAR ASSOCIATION

Mr. CUMMISKEY. Mr. Chairman, members, I have a prepared statement which I ask to be put in the record. Mr. RODINO. It will be inserted. 128 CRIMNAL JUSTICE ACT (The statement referred to is as follows:)

STATEMENT OF JOHN W. CUMMISKEY, CHAIRMAN, STANDING COMMITTEE ON LEGAL AID WORK, AMERICAN BAR AssocIATiON, IN SUPPORT OF LEGISLATION WHICH WOULD PROVIDE ADEQUATE I)EFENSE FOR THE CRIMINALLY ACCUSED IN THE FEDERAL COURTS My name is John W. Cummiskey. I am a practicing lawyer in Grand Rapids, Mich. I have been interested in the problem of providing counsel for indigent citizens for many years, both in Michigan, as chairman of the legal aid committee of the State bar of Michigan and as president of that organization, and nationally, as a member of, and since 1959, chairman of the ABA standing committee on legal aid work. One of the six major objectives of the American Bar Association is "Promotion and establishment within the legal profession of organized facilities for the furnishing of legal services to all citizens at a cost within their means." The standing committee on legal aid work, established in 1921, is charged with responsibilities in the following areas: (1) Administration of justice as it affects poor persons throughout the country; (2) Remedial measures intended to assist poor persons in the protection of their legal rights; (3) The establishment and efficient maintenance of legal aid organizations; and (4) Cooperation with other agencies, both public and private, interested in these objectives. Since 1940 our committee has been actively advocating organized defender services for the indigent criminal defendant. In 1960 this committee presented, and the house of delegates of the American Bar Association approved, standards for defender systems, as follows: (1) Provide counsel for every indigent person unable to employ counsel who faces the possibility of the deprivation of his liberty or other serious criminal sanction; (2) Afford representation which is experienced, competent, and zealous; (3) Provide the investigatory and other facilities necessary for a complete defense; (4) Come into operation at a sufficiently early stage of the proceedings so as to fully advise and protect the defendant; (5) Assure undivided loyalty by defense counsel to the client; (6) Iclude the taking of appeals and the prosecution of other remedies, before or after conviction, considered by the defending counsel to be in the interest of justice; (7) Maintain in each county in which the volume of criminal cases requiring assignment of counsel is such as to justify the employment of at least one full-time lawyer to handle the work effectively, a defender office, either as a public officer or as a quasi-public or private organization (italic added); (8) Enlist community participation and responsibility and encourage the continuing cooperation of the organized bar. See "Report of the Committee on Legal Aid Work," 85 American Bar Associa- tion Report (1960). Let me invite your attention to these carefully prepared standards and the application of them in the joint report of the special committee and the standing committee to which Mr. Seymour has referred, and also in proposed legislation in several bills before this committee, incorporating what is commonly referred to as the Criminal Justice Act of 1963. Perhaps the single most important feature of these bills is the alternate method approach. Over the years we have developed and have presently existing many varieties of organized systems for defense of the indigent criminal. We urge the use of these existing services whenever possible in order to utilize their experience and eliminate unnecessary duplication and excessive costs. In many circuits local bar associations will be able to represent indigents; in others, existing legal aid services are already established and are competent and ready to implement their existing services; and in some districts, no doubt a formal defender will be established. The development of what we called the mixed public-private system of organized defense emphasizes the value of the alternative approach in this act. I can best explain this by examples. In Cleveland, Ohio, the Legal Aid Society, a com- CRIMINAL JUSTICE ACT 129 munity-supported organization, established a defender branch, supported initially by a foundation grant. This office has been assigned cases by the State courts, for which, under the Ohio system, fees are paid to the attorneys upon approval of the court which may be as much as $2,500 in major cases. Thus, the community supplies the basic service and the public authorities assist it financially by payment of fees. It is still necessary for the local bar associations to supplement the work of the defender office, which is designed to meet minimum caseloads, not maximums. In the District of Columbia, the Congress has established a Public Defender, supported by public funds entirely. It is important to note that this also is a minimum caseload staff. Approximately two-thirds of the cases assigned to that office are tried by private attorneys who presently donate their time, but have the valuable aid of the experienced staff of the Public Defender. In Los Angeles County, the bar association has, on an organized basis, provided volunteers (some 60 or more) for many years, both in State and Federal courts. It is possible that system may be continued with the addition of investigative help and modest compensation to improve the adequacy of service. In Erie County (Buffalo, N.Y.) the bar association has incorporated a defender office which is providing valuable service. May I point out that the U.S. Supreme Court has imposed the same responsibility for providing adequate representation for indigents upon the State courts. Interestingly enough, the States are ahead of the Federal Government in providing compensated counsel-yet the Federal system has been the most vocal about absolute right of counsel. It is time this contradiction was eliminated, and Federal action established which will not only equate language with deeds, but go further and provide leadership for the States in this vital area of human rights. All this points to the very valuable alternatives which will permit a district court, in its judgment, working with the lawyers in the district, to establish that system, as combination of systems, including existing local defenders, whether public, private, or mixed, which will provide maximum flexibility with a minimum amount of cost and duplication of effort, and which will permit maximum cooperation between Federal and State systems and the bar to achieve our mutual objective of adequate defense. The extent of existing organized legal aid and defender services, whether by bar associations, legal aid offices, defender offices, public or private, is considerable. While we do not have complete statistics-and I emphasize the fact that these figures do not include all work performed-I can report that in calendar 1961, existing services handled 524,398 cases, of which 141,719 were criminal matters and 382,679 civil matters. Not to utilize this vast organization of proven competence would be unwise. In summary, then, the most effective system will be, in our judgment, the utilization of existing services, whether legal aid offices or local defender groups, public, private, or mixed, or bar associations. Only where such services do not meet the need should a separate Federal defender system be established. It is vitally important to an adequate defense that the attorney be appointed early; that he be given the use of investigative techniques and personnel; that he be reasonably compensated; and that provision for appeal, where justice dictates, be included. All these matters, together with the flexibility to use existing services, a Federal Defender, or any combination thereof, are provided in the Criminal Justice Act of 1963. We need not decide now which plan is best. That decision rightly rests with the district judge and the judicial council of the circuit. They are best equipped to determine that plan, or combination of plans, which will serve the need efficiently and economically in the interest of justice for the poor. The proposed act allows them to modify or change their program should subsequent experience reveal the need for improvement. Mr. CUMMISKEY. The standing committee on legal aid work since 1921 has been charged with the responsibility for the American Bar Association in the areas of legal service to indigents. In 1960, our committee prepared and sent to the house of delegates standards for defender system which were approved. I have mentioned them in detail. I merely wish to refer to them and suggest that these standards were prepared after some years of study; the joint report of the special committee, of which Mr. Seymour is chairman, and my own

21-022-63-10 130 CRIMINAL JUSTICE ACT committee, and the proposed bills, are very consistent in their approach. Perhaps the most important single feature is the alternate method of approach. Over the years we have developed and we have existing now many varieties of organized systems for defense of the indigent criminal. We believe the use of these existing services wherever possible in order to utilize their experience and eliminate unnecessary duplication and excessive costs is one of the things that should be done. In many of the circuits we are satisfied that local bar associations will continue to represent indigents. In others we already have defender systems, both public, private, or mixed. The development of this mixed system, this public-private approach, . think emphasizes the values of the alternatives which are proposed in the Criminal Justice Act. I have referred to Cleveland, Ohio, as being an example of the mixed public-private system where we do have a private defender's office established originally by a foundation grant which is assigned cases by the State courts; and, as has been said here before, the fee schedule in Ohio which is a little more substantial than many of the other States will permit payment up to the top of $2,500 in murder cases. So there you have the comnmunity supplying the basic service and the public authorities assisting it financially by the payment of fees. It is still necessary in Cleveland, as in most places, for the local bar associations to supplement the work the defender's office does, because all of our existing services are designed to meet minimum caseloads and not maximum and therefore need supplementation by the bar. The same thing has been true in the District of Columbia. , I think you gentlemen know that, two-thirds of the cases handled by the defender's office have been -tried by attorneys offering their services voluntarily. Again, the minimum caseload service, the investigative service and the staff, but the work performed in the main by volunteer attorneys. I have mentioned two or three other situations where the same kind of system, this mixed public-private system, is in existence. The U.S. Supreme Court has imposed on the States the same obligation for providing the same protection in the States as they have in the Federal system, and if f might divert from my statement for a moment, in most of the States they provide for representation in capital cases, major cases, felonies, but they do not provide that service in police misdemeanors. Now we are going to have to change most of our State laws to provide for that very greatly broadened demand for legal service. For example, in Ohio, it is mandatory that an attorney be appointed in felonies but he is only appointed after indictment.. T am sure that this will be changed, because I am sure the Supreme Court will not accept that sort of a system and I merely point that out (not to be critical of Ohio) but because Ohio has been a leader and many of the other States lag behind. Interestingly enough, the States do provide, in most instances, compensation of some sort. It is only in the Federal system today and in a very few of the States that you have absolutely no compensation whatever. We believe it is time that this contradiction of the Fed- eral system, urging the appointment and representation of the indigent, but not providing any sort of compensation, be eliminated so that the language of the decisions can be equated with action, and I wish to point out to you that whatever action this committee and CRIMINAL JUSTICE ACT the Congress take will no doubt point the way to the States in re- vamping their presently existing systems. In 1961, the existing legal-aid services handled 524,398 cases, of which 141,719 were criminal matters, as opposed to the suggestion that approximately 10,000 cases per year in the Federal system would require the appointment ol attorneys. We should utilize this vast existing organization. In summary, the most effective system will be, in our judgment, the utilization of the existing services, whether they are legal-aid services or local defender groups, whether they are State, public, private, or mixed, or bar associations who also have existing services. Only where such services do not meet the need should a separate defender system be established. The other proposals in the bill for early appointment, right to compensation, ability to take appeal are contained in most of the bills and are certainly important. We do not need to decide which plan is best. The virtue of the bills is that they permit the decision to rest with the district judge and the Judicial Confer- ence. They are the ones who are in the best position to determine what plan or combination of plans will serve the needs efficiently and economically and in the interest of justice for the indigents. That concludes my statement, Mr. Chairman. Mr. RODINO. Mr. Cummiskey, right there, ill view of your experience in this area, would you not say, as a matter of experience, that one of the essential elements, and probably one of the most vital elements for preparation of trial is the pretrial work, the investigative work, the factfinding that is so essential' Would you not say, also, that even where there has been assigned counsel, this is a provision that has been lacking? The investigative work has not been provided for? Mr. CUMMISKEY. In most of the States they do not make any allowance for that and I think, as has been said many times here today, and I have listened, unless you get in early before the defendant has been forced to commit himself, much of what you do after that is wasted. And we do need to get in early and have tile ability to investigate. We had a criminal case up in our district where the question went back to a very famous book that has been written on the doctrine of the irresistible impulse as e-cusing murder. Mr. Justice Voelker wrote the book under the pen name of Robert Traver. It was absolutely essential in this recent case that the defense have use of psychiatrists. That was their whole defense. And yet there was no basis on which those psychiatrists could be compensated. It was done by the lawyers and by the friends of the accused who in this instance helped put up some money. This man was not totally indigent but you could have easily the same kind of case where you require the services of a psychiatrist at $150 to $250 a day and ,min.Q you can get him you can't make your defense. Mr. RoDINo. Thank you, Mr. Cumnmiskey. Mr. Stoner? Mr. MCCULLOCH. Just a moment. Mr. RODINO. Mr. McCulloch. Mr. MCuLLOCH. I am very glad to hear your statement, Mr. Cuniniskey, and, of course, at this stage of the proceedings I was particularly glad to see the first sentence and the last full paragraph on page 5 of your statement. Do you have a public defender's 132 CRIMINAL JUSTICE ACT system patterned after or like or similar to the Connecticut system and Michigan system? Mr. CUMMISKEY. We do not. Mr. MCCULLOCH. Do you have a system that is much like Ohio's and North Carolina's and West Virginia's, all of which were testified about today? Mr. CUMMISKEY. Basically, we use the old system of court appointments in major cases. Compensation is determined by the judge with the overseeing by the board of supervisors. It is very inadequate by our own local bar association standards and we hope to be able to improve it, but this is our system basically. Mr. MCCULLOCH. Have you been working to that end with dili- gence and with purpose for many years in the Michigan Legislature? Mr. CUMMISKEY. Yes, sir. But as you know, Michigan, up until several months ago has been running in a pretty high deficit position and while I think we have cut our deficit by 50 percent, any attempts on our part to have improved this situation generally have not been successful. But they have been tried diligently. Mr. MCCTLLOCI. So you will be taking some of your own pre- scriptions, -you hope, soon in Michigan? Mr. CUMMISKEY. I hope so. Mr. MCCULLOCH. Do you live in Detroit? Mr. CUMMISKEY. No, sir; I live in Grand Rapids which is in the western district. Mr. MCCULLOCH. Is your circuit one of those circuits which you now believe should have a public defender system in its basic outlines as set forth in the chairman's bill? Mr. CUMMISKEY. I can state reasonably surely that the western district, which is a very long district that covers the western half of the Lower Penninsula and the entire Upper Penninsula of Michigan- the court sits in Grand Rapids and Marquette, which are approximately 400 miles apart. I am sure we would not utilize the defender system. We would use a combination, which I think is one of the important features, of the existing legal aid services of which we have several in the district, plus, necessarily, in the Upper Peninsula the use of an appointed counsel. Mr. MCCULLOCH. I noted your testimony concerning the Cleveland system about which I am impressed. Would your experience in the northern district of Ohio be sufficient to lead you to a conclusion as to whether or not you think a public defender system would be necessary in the northern district of Ohio? Mr. CUMMISKEY. I would not speak that much about the wishes of the lawyers in the northern district of Ohio. Mr. MCCULLOCH. Are there any other districts or circuits in the United States with which you are familiar by reason of your long ond effective labor in the field, about which you can come to a conclusion? Mr. CUMMISKEY. No, sir; I could not. I do feel this way about it: I think that one of the accepted methods today of handling the problem of representation of the indigent defendant is the use of a public defender. Now, to be sure, our experience has been confined so far, obviously, to the State systems. But we do have 93 existing public State defender offices which have been performing yeoman service. I know of no verified criticism that defendants have been ignored or not properly represented. Nor do I know of any verified criticism of the operation of those offices as being contrary to justice. CRIMINAL JUSTICE ACT 133

Mr. MCCULLOCH. Could I ask you this question at this time- and I apologize for the interruption: Of those 90 or 92 districts, or territories where there are public defender systems, are they by law and by whom are they financed if they are by law, and who selects the defenders? Mr. CUMMISKEY. The 92 public offices-some are county established, most are State established. In those areas I could not speak as to the method in each area of the selection of the defender. I would have to go back to our statistics on that, Mr. Congressman, but you see, one of the proposals of the bill would be that we could utilize, as I understand it, these existing services at the State level, whether they are public or private, in further carrying out the representation of the indigent defendants in the Federal system. It would seem to me that if the use of the State defenders is perfectly all right, that perhaps the option of utilizing the Federal public defender should be one of the existing methods which a district might use. Mr. MCCULLOCH. Pinpointing one judicial jurisdiction-the Cleve- land jurisdiction-is that a county or State defender system or is that purely the authority of the court to name a defender for the person who is not financially able to employ one and does that person come from the legal aid society or from what source does that person come? Mr. CUMMISKEY. Cleveland's system is this: There is a separate branch of the legal aid society which is called the defender branch. It originally got a grant of $100,000 from the Cleveland Foundation on the condition that the records would be kept separate. So this is completely separate financially. Presently in Cleveland we have four full-time attorneys and one part-time attorney plus one full-time investigator. Mr. MCCULLOCH. By whom are they selected? Mr. CUMMISKEY. By the legal aid society, defender branch, the board of directors. Mr. MCCULLOCH. And what is their tenure of office or selection? Mr. CUMMISKEY. They are employed on a salary subject to the pleasure of the board. They are designated as individual lawyers by the judges. They do not designate the society as such. The judge designates the individual lawyers to represent the indigent criminals. Mr. MCCULLOCH. But their tenure of office in Cleveland is in no wise dependent upon any appointment by anyone necessarily in public office, either by election or by appointment? Mr. CUMMISKEY. No, sir. It is entirely- Mr. MCCULLOCH. Do you think that could have some bearing upon the real merit of a public defender system? Mr. CUMMISKEY. It would seem to me, if I understand your question, that you are coming to the directing of the appointment. Is there a difference between an individual who is employed by a legal aid society subject to their direction and control-not subject to the direction or control of any judge? Mr. MCCULLOCH. Let's go one step further-or any executive authority or judicial authority whatsoever that might terminate-or who might not reappoint that person for one reason or another? Mr. CUMMISKEY. I honestly do not believe that that is a major difference and I must say it on this basis-that I think the district judges who after all are hearing the cases, are interested in this CRIMINAL JUSTICE ACT problem and will designate people of competence to perform the work. One reason why in earlier discussions of working out this legislation and the Allen committee report-I know they spent a great deal of time in bringing the establishment and control of the system down to the district level, so that the district judge and judicial conference of the circuit which is composed of the judges and lawyers, would be the ones to decide what that circuit should have. But, while judges are human, I think that in the main, the judge being the selecting officer, subject to approval of the circuit, to me takes c.are of any problem of conflict of interest such as the prosecutor versus the defendant. The judge is not the prosecutor. He is hearing the case. MNr. MCCULLOCH. I understand that. Mr. CUMMISKEY. May I add just one comment? Mr. MCCuLLOCH. I want you to put in the record everything that will lead us to a conclilsion free from prejudice based on the facts of what will be in the best interests of the country. Mr. CUMMIsKEY. I an also a vice president and member of the board of directors of the National Legal Aid Defenders Association. I would like to comment very briefly on the Ford Foundation grant of $2,300,000. This is a highly restricted grant in accordance with the Ford Foundation's investigation of so-called gray areas. While on its face it sounds like a great deal of money, it will be used at the State level in the investigation of the problems of representation of indigent defendants at the State levels. Itwill be utilized to some extent in the establishment of pilot public defender systems similar to the manner in which we were allowed to utilize money in an earlier grant in the establishment of pilot legal aid offices on the civil side where our assistance is requested to assist. It is not designed to take the place of and would not financially take the place of the rather tremendous burden that the States and lawyers in the States must carry in representing indigent criminals. It will be spread over a miunmuin of 5 years and we hope it will further clear up some of the differences of opinion as to the utility of the defender system, public, private, or mixed. Mr. MCCULLOCH. I was particularly glad to have that explanation and the very reason for which you stated the grant was made and the funds are to be used is one of the things that is probably bothering me and my colleagues-and the Ford Foundation grant is in further- ance with those experimentations that we have had in the several States ever since we became a Union; so when some plan was embraced by a State, if it was not in the interest of the public, it did not injure the whole Union. And I am glad to hear that story. I would like to ask Mr. Smith a couple of questions, and I shall be through. I would like to ask Mr. Smith if in New Jersey-! believe that is your home State-there is a law on the books which authorizes the trial judge to appoint counsel for defendants who are unable to provide counsel for themselves? Mr. SMITH. We have a rule of the New Jersey Supreme Court that counsel has to be appointed in cases and we go down to the city magistrate. I was assigned one time-I don't have to serve-but I was assigned to appear before a magistrate. That is required by the supreme court rule. Mr. MCCULLOCH. And is there a basis in court law or statutory law for that sort of action? CRIMINAL JUSTICE ACT 135

Mr. SMITH. Yes. Mr. MCCULLOCH. How long have you had that? Mr. SMITH. We have had that practically ever since I have known anything about the State. We have had the voluntary assigned counsel and in an early case in New Jersey, way back in-I think 1849- they held that that applied to misdemeanors as well as more serious offenses. The only compensation paid in New Jersey is in homicide cases, murder cases. Mr. MCCULLOCH. How does that system work in New Jersey? Mr. SMITH. I think it works very well. In the Federal courts, the lack of investigative means has been a great disadvantage. It has been a great burden and it has annoyed the lawyers because we haven't had any provision for making an investigation of the facts. But [ believe the men have been devoted and have done as well as they could without compensation. In the State level we do not have the investigatory allowance and the New Jersey State bar has advocated that some compensation and some provision be made, either in the legislature to provide investigation or investigatory service for people who are assigned counsel. Mr. MCCULLOCH. If your legislature provided for reasonable compensation as Ohio does, and provided for investigatory expenses, would your problem be largely met in New Jersey? Mr. SMITH. I think it would. I am very frank to say that I think our New Jersey bar and I think our judges like the assigned counsel method. Mr. McCtmLLOCH. I do not mean by\ my question that I think the Ohio law is perfect. ft needs attention and it needs attention soon, as your colleague testified, and I hope the American Bar Association will keep reminding Larry Burnes and the rest of us that we need to do something like that. The 3ial question is this, then: If that kind of selection of counsel works in Ohio and New Jersey and will work better as we update our legislation, is there any reason why that type of legislation would not work well at the national level? At least for the time so that we can test to see how it is working? Mr. SMITH. I see no reason why that isn't a correct answer. I think, however, that there are some districts where the population is very, very greatly concentrated where perhaps in some cases a combination of private counsel and public defender might be there-but it would have to be, in my opinion, a densely populated and very large district of the Federal court. Mr. MCCULLOCH. Without putting words into your mouth, you mean New York, for instance? I say this, warning you that I asked the former president of the Anierican Bar Association in his opinion about New York and the contrary opinion was expressed. Mr. SMITH. I have in mind, for instance, the eastern district in New York, which is Brooklyn, which has a big load. That is one, Congressman Celler's district court area. I also think, for instance, in the city of Chicago where they have a public defender system, that there may be a need there. But Congressman McCulloch, I ,vant to say this: Any district court that did not provide a combination for assigned counsel plus the defender system, would not have an adequate plan. In the first place, the number of people in the defender's office would have to be very great. The indictments in these Federal 136 CRIMINAL JUSTICE ACT

cases frequently include more defendants than there would be people in the public defender's office. Mr. MCCULLOCR. You mean in these large districts or circuits? Mr. SMITH. Yes. And of course there you would have to get outside counsel. There is frequently a conflict of interest which arises- that is provided for in the bill. And, of course, it seems to me that in such a case the combination in any district court that didn't provide for one of the other methods would not be providing adequate defense of the indigent. Mr. MCCULLOCH. But you do not think it is necessary in New Jersey that there be alternatives? Mr. SMITH. I don't think either the members of the court or the members of the bar would desire a public defender system. I think the question is, would it be located in Essex County or Newark or in Camden or would we have assistants all over? It would be very difficult. Mr. CRAMER. I have a couple of questions I would like to ask. The thing that impressed me so far is that every one who has testified has said that the public defender system is all right, but for somebody else, even in southern New York which is one of the cases cited by the Attorney General as one of the critical need areas. It has been testified that it is not needed in southern New York. I would like to have from either Mr. Smith or Mr. Cummiskey some examples where it is needed. The Attorney General did not suggest eastern New York as an example, even in his presentation. Where is it needed? Mr. SMITH. I would suggest perhaps in the Brooklyn area, the eastern district of New York and also perhaps in those areas-Los Angeles where they have a very efficient public defender office in the State system. That might be adaptable there. But there is a very large concentrated population in that area. Mr. RODINo. I conclude from your testimony that although you may recognize there may be some areas where it might not be necessary to substitute such a system, that nonetheless there is an essential need throughout the country? Mr. SMITH. Yes. I think that the public defender system is really still on trial in some areas of the country. In other areas, such as Los Angeles, the State public defender system is very efficient, well run, and it is extremely highly praised by the Los Angeles Bar Association. It depends on what the service is and how it is manned. But I think that the advantage of this bill is not which means is best, it is the objective. We want to make sure we have adequate service. I think Mr. Seymour was right in the southern district of New York- that the legal aid society services which would be there are probably for the time being a substitute in the southern district of New York for the public defender's office there. Mr. CRAMER. The point that I was getting at-let me ask this question: Does the Los Angeles public defender system apply also to the Federal criminal cases? Mr. SMITH. I didn't hear what you said. Mr. CRAMER. Does the Los Angeles public defender system apply to the Federal criminal cases? Mr. SMITH. No. It is county established-Los Angeles County. CRIMIENAL JUSTICE ACT

Mr. CRAMER. They are being handled by legal aid at this point; is that correct? Mr. SMITH. I think so. Mr. CRAMER. Or private appointed counsel? Mr. CUMISKEY. Private appointed counsel. We have a panel of some 60-odd lawyers down there in the Federal courts. Mr. SMITH. The Los Angeles bar has a panel of lawyers that are given to the Federal judges and the Federal judges appoint from that panel and that panel receives compensation from the bar association at the present time and that panel is doing a very good job. A great many men on that panel are experienced counsel. Mr. CRAMER. Then why do they need a public defender? Mr. SMITH. I can't say whether they need them. I think the question there is to be decided by the local people, the district judges sitting there. They can make it a combination under this bill of (1) and the use of the panel of the bar association. Mr. RODINO. And this bill provides for just such a local option. Mr. MCCULLOCH. Will the gentleman yield? As a matter of fact, as I recall, that circuit decided they did not need a public defender. Mr. CRAMER. It appears to me that everyone we have asked about a particular area has said that it is all right, but it is all right for somebody else. In some areas the problem is compensation which, of course, either of the proposals made by Mr. Poff or Mr. Moore would take care of and would keep in effect a court appointed counsel or legal aid society system. So the difficulty I have is putting into perspective the statement of Mr. Cummiskey on the bottom of page 5 where he says, "only where such services do not meet the need should a separate defender system be established"-and I have yet to hear of a place where there is such a need. Mr. CUMMISKEY. I have some correspondence with the chairman of the voluntary committee, Mr. Arthur S. Bell, Jr., in Los Angeles, and they have for some time recommended the passage of a Federal public defender bill. So I am sure that you would find, unless Mr. Bell has changed his mind-and if so he has not advised us of it- that this is one area that they would like to have that option available to them. Mr. CRAMER. Do they want an office of the public defender or do they want compensation for panel attorneys? Mr. CUMMISKEY. They said this: They wanted public defenders or paid assigned counsel. But, based upon years of actual experience, they recommended a Federal public defender. Mr. MCCULLOCH. Will the gentleman from Florida yield to a question? It is possible that we are not talking about the same man or the same organization. Again, I am referring to the report of the Attor- ney General's Committee and on page 50 I find the following, Mr. Cramer: This is under paragraph 9, and I quote: Note especially the "Resolution on Indigent Representation" unanimously adopted by the Judicial Council of the Ninth Circuit: Resolved by the Council of the Circuit Judges for the Ninth Circuit, at a meeting held on December 12, 1962 * * * and then there is a great deal that I am omit- ting, but I am getting to the point that I want to make: 138 CRIMINAL JUSTICE ACT

This council is not committed to any one of the foregoing methods, but is firmly of the opinion, in the light of experience in the ninth circuit, that the prompt provision of a means for compensating counsel for indigent defendants is of the utmost importance to the proper administration of criminal justice in the U.S. courts. We, therefore, urge that the Congress, at the earliest possible moment, adopt legislation which will enable the U.S. courts to assign to the defense of persons accused of crime adequately compensated counsel. And that is the end of that part of the resolution which I think bears on this question. If we are talking about this same territory and the same judicial district-and I find nothing in that language where they say that they favor and urge Congress to provide for an indigent or public defender's system. Mr. RODINO. I would just like to make an observation. We still bave two witnesses here from- Mr. CRAMER. I just have one or two questions. That is the point I was trying to get at. Let me ask you this further question: Do you not believe that in areas such as Los Angeles where you now have a, good system of legal aid or court-appointed attorneys, is that going to be completely de- stroyed if in fact they should decide to go into the Federal public- defender approach? Isn't the willingness of the bar to be a part of this thing and to contribute to this thing which it is doing immeasur- ably something that we want to avoid destroying? Mr. CUMMISKEY. I' don't think so. The only actual experience we have had is in the District of Columbia where the evidence is that two-third of the cases are being tried by private counsel. Mr. CRAMER. That is a mixed situation. I am talking about if they decide that they want a public defender with assistants. Mr. CUMMISKEY. The District of Columbia is not mixed. It is mixed in the sense that we have lawyers contributing time and effort but the Government happens to be paying the whole cost which is the same as the defender. Mr. CRAMER. It is mixed in the sense that you have full-time employees plus voluntary attorneys. Mr. CUMMISKEY. Even in almost every district-as I said in my statement-you will end up with the options being utilized in any plan. Mr. CRAMER. You further go on to say that not to utilize this vast organization of proven competence would be unwise. Then you say that the most effective system will be in our judgment the utilization of existing services-legal aid offices, local defender-How can the local defender activities, limited by statute in some instances, be integrated into the Federal defender concept? Mr. CUMMISKEY. By designating the local defenders to handle the cases. Mr. CRAMER. The statutes in many instances would not permit such a thing. Mr. CUMMISKEY. In some instances, I agree with you, they would not. Mr. CRAMER. That is all. Mr. RODINO. Mr. Stoner. CRIMINAL JUSTICE ACT 139

STATEMENT BY JAMES R. STONER, CHAIRMAN, JUNIOR BAR CONFERENCE OF THE AMERICAN BAR ASSOCIATION

Mr. STONER. Mr. Chairman, members of the committee, I have a prepared statement which I ask be inserted in the record. Mr. RODINO. it will be inserted. (The statement referred to is as follows:)

STATEMENT BY JAMES R. STONER, CHAIRMAN, JUNIOR BAR CONFERENCE OF THE AMERICAN BAR ASSOCIATION, IN SUPPORT OF LEGISLATION WHICH WOULD PROVIDE ADEQUATE DEFENSE FOR THE CRIMINALLY ACCUSED IN THE FEDERAL COURTS Mr. Chairman and members of the committee, I am James R. Stoner, and I am presently serving as chairman of the Junior Bar Conference of the American Bar Association. I practice law in the District of Columbia. All American Bar Association members under 36 years of age are members of the junior bar conference. We presently have a membership of approximately 31,000 lawyers. In many cases the legal representation of poor persons accused of crime is provided by younger members of the bar. Ofttimes judges are reluctant to appoint senior lawyers who are highly pressed for time due to their many professional commitments. The judges often look to the younger and more inexperienced counselors who may, in many respects, be less able to afford time away from their practice than the attorney with years of experience. The road of the young attorney is seldom easy. He is striving to develop his practice and at the same time maintain himself and, in many cases, his wife and newborn children. He is financially unable to advance funds, with no assurance of reimbursement, in order to properly investigate his case. In most cases his assigned client is in jail and, therefore, his job is more difficult. Not only must he interview his client and investigate the facts but he must also spend time traveling to the jail, signing in, waiting while the prison authorities bring his client from the cell block to the visitation room, conducting his interview under adverse conditions, waiting to be released himself from the visitation room after the interview, signing out, and returning to his office. In many cases the attorney must spend more time in handling the defense of an indigent than in handling the defense of the identical charge against a person able to pay. The defense of a criminal is unlike any other employment. When the trial of the case begins the attorney is obligated to devote all of his time to that task. He cannot interrupt it and take care of other professional obligations. Neither can lie arraiige his schedule to suit his other commitments. He must cancel his other activities. The court records are full of cases where assigned counsel have devoted many days, weeks, and even months to the defense of an indigent accused. Since I became chairman of the junior bar conference last August, I have traveled extensively throughout the United States, and I have spoken personally with hundreds of young lawyers. Time after time they have told me of the hardships which they are daily incurring in the defense of those they have been appointed by the courts to defend. These lawyers are not concerned about receiving compensation which would enhance their own economic positions. However, they are concerned about the rights of their indigent clients. They are concerned when they as lawyers simply cannot afford to give their cases the time required for proper defense. They are concerned when, without proper investigation of the facts, they cannot provide their clients with the full protection of the law. The Junior Bar Conference and the American Bar Association arc only seeking- through Federal legislation-that which would allow us as lawyers to prepare adequate defenses and to conduct proper investigations. I know of no situation that distresses a lawyer more than when he is unable to give his client the benefit of the full protection of the law of the land. Hampered by lack of funds, the unpaid appointed counsel often finds himself in this situation, unable to give his client the full protection of the law. This is not just a matter of distress to the appointed lawyer. It is also a matter of fulfilling a requirement of the U.S. Constitution. Mr. Sylvester Smith, the president of the American Bar Association, and his colleagues, Mr. Seymour and Mr. Cummisky, have discussed the constitutional aspect before this committee. They have discussed particular provisions of the 140 CRIMINAL JUSTICE ACT legislation before this subcommittee, and how this legislation would satisfy the requirement of the sixth amendment in providing assistance of counsel. On behalf of the Junior Bar Conference, I concur with their statements, and shall not take the committee's time to discuss further the constitutional mandate, and the provisions in the bills. My predecessors in the Junior Bar Conference appeared during hearings before this subcommittee in 1959 and related case after case of unfairness to indigent defendants and their counsel when no funds were available for preparing the defense. The need for legislation has been clearly documented, and each member of this committee, I am sure, has his own firsthand knowledge of many cases of such unfairness. Therefore, I shall not belabor the issue of the need for the legislation. I offer, however, the facts of one very current case which has come to my attention. On April 19-last month-U.S. District Judge Frank M. Johnson dismissed the prosecution by the Federal Government of a case against Ned Germany, an indigent and illiterate defendant charged with the unlawful selling of non-tax-paid whisky. This case before the U.S. District Court for the Middle District of Alabama, northern division, was dimissed by the district judge because the United States had failed and refused to provide funds to the defendant's appointed counsel for the reasonable and necessary expenses to be incurred in interviewing a material and essential witness. It was necessary for the appointed defense counsel to travel to the scene of the alleged crime and to interview a witness in another community. The defendant could not post a $500 bond and remained incarcerated on the charge. He could not assist in locating or interviewing the witness. When the facts were made known to the court, Judge Johnson issued an order directing the United States, through the U.S. marshal, to reimburse the court appointed counsel for his "expenditures necessarily and reasonably incurred" for traveling, and for subsistence, in interviewing the out-of-town witness and viewing the scene of the crime. No funds were available. When the case was reached for trial the court entered an order dismissing the indictment and releasing the defendant. In the order of dismissal the judge stated that there was no question that the sixth amendment to the Constitution of the United States required that assistance of counsel be more than a mere formal appointment or an empty gesture. Further, that the cases which "* * * require not only the formal appointment of counsel, but the appointment of competent counsel, effective counsel, and counsel that have 'an opportunity' and 'time' to prepare and present their indigent clients' cases, have been recognized time and again by the Supreme Court of the United States and the various circuit courts of appeal." Judge Johnson held that effective legal representation in this case required that the court-appointed counsel have funds made available to him, or have the assurance that he would be reimbursed for funds necessarily expended for the reasonable and necessary expenses incurred. He further held that failure and refusal by the United States to provide such funds constituted a denial of counsel within the meaning of the sixth amendment, and constituted a denial of "assistance of counsel" and a denial of "effective assistance of counsel" within the meaning of the cases which have interpreted the constitutional guarantee. Mr. Chairman, with your permission, I offer the order of dismissal, dated April 19, 1963, and attached as appendix A for incorporation in the record. Young lawyer groups throughout the country have adopted resolutions urging enactment of legislation in this area. The need has been clearly documented. The Junior Bar Conference has recently reaffirmed the position which it has taken for many years in advocating the adoption of legislation to adequately fill the void which presently exists and urges the early enactment of such legislation. Thank you for the privilege of appearing here today. CRIMINAL JUSTICE ACT 141

APPENDIX A

IN THE U.S. DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION Cr. No. 11,515-N

UNITED STATES OF AMERICA v. NED GERMANY (Filed April 19, 1963. R. C. Dobson, clerk) ORDER OF DISMISSAL This is a criminal case wherein the United States through an indictment returned to this court on February 8, 1963, charges Ned Germany with violating the laws of the United States as those laws relate to the unlawful selling of non- taxpaid whiskey in violation of sections 5205(a)(2) and 5604(a) of the Internal Revenue Code. Prior to the time Ned Germany was indicted and shortly after his apprehension, this court, at his request, appointed the Honorable Rufus M. King, attorney at law of Montgomery, Ala., to represent him in this case. This appointment was upon the representation of the said Ned Germany to this court that he was without funds to employ and pay counsel. Shortly thereafter, it was made known to this court that the defendant Germany was illiterate, with no formal education, and that he had not intelligently waived his preliminary hearing. This court upon that showing and without objection on the part of the Govern- ment, ordered one of the U.S. commissioners for this district to conduct a preliminary hearing in this matter. The United States has not controverted the representation that Germany is illiterate and indigent. After the preliminary hearing and on February 16, 1963, the defendant Ger- many, by and through his court-appointed counsel, moved this court to- (1) Order the U.S. Marshal, or other appropriate official, to make payment to the defendant's attorney for expense of travel and subsistence in interviewing the Jones Negro and in interviewing the agent of the United States employing said Jones. (2) Order the U.S. Marshal, or other appropriate official, to make payment to the defendant's attorney for travel and subsistence expenses in viewing the scene of the alleged crime. Upon consideration of said motion of the defendant and the reply of the United States, together with the representation of counsel made orally to the court, this court by written order filed herein on March 1, 1963, found and held that H. L. Jones, Route 1, Dozier, Ala., was an informer in the case now pending in this court against Ned Germany and that Jones was present at certain material and relevant times during the commission of the alleged offense against the laws of the United States by the said Ned Germany. It was conceded by the United States, upon said hearing of the motion of Germany, that H. L. Jones is a matrial witness in the case now pending against Germany. It was also noted in the order of this court that the United States did not at that time contest the representation that Germany was indigent to the point of being unable to pay the reasonable expenses to be necessarily incurred by his court-appointed counsel in making appropriate and necessary investigations in order to properly and adequately defend the said Ned Germany in this case.' This court in its written order of March 1, 1963, determined that Germany was entitled to have his court-appointed counsel furnished the necessary funds to reimburse him "for expenditures necessarily and reasonably incurred" for traveling and for subsistence in interviewing H. L. Jones at Route 1, Dozier, Ala., and "if necessary, the expenses reasonably incurred in taking the deposition of the said H. L. Jones." This case, by order of this court, was set for trial to commence at 9 a.m., Mon- day, April 15, 1963., or as soon thereafter as the business of the court would permit. Subsequent to this court's order of March 1, 1963, directing the United States through the U.S. marshal for this district to reimburse the court-appointed counsel for said defendant for his reasonably necessary expenses for travel and for subsistence incurred as aforesaid, this court has been informed by the U.S. attorney for this district that the U.S. Government has no funds available with which to pay court-appointed counsel representing indigent defendants for the reasonable and necessary expenses for traveling and for subsistence in interviewing material witnesses and in viewing the scene of the alleged crime; specifically, the U.S. I The court records also reflect that Germany-even if he had the ability-cannot assist in locating and/or interviewing the witness since he has remained incarcerated on this charge-unable to post a $500 appearance bond. 142 CRIMINAL JUSTICE ACT

Department of Justice has refused to authorize the U.S. marshal for this district to honor the order of this court made and entered here in on March 1, 1963, wherein2 this court ordered said marshal to pay the court-appointed counsel in this case. There is no question but that the sixth amendment to the Constitution of the United States, in providing that "(i)n all criminal prosecutions, the accused shall * * * have the assistance of counsel for his defense." requires that the assistance of counsel be more than a mere formal appointment or an empty gesture (Powell v. Alabama, 287 U.S. 45; Johnson v. Zerbat, 304 U.S. 458; Avery v. Alabama, 308 U.S. 444). These cases that require not only the formal appointment of counsel, but the appointment of competent counsel, effective counsel, and counsel that have "an opportunity" and "time" to prepare and present their indigent clients' cases, have been recognized time and again by the Supreme Court of the United States and the various circuit courts of appeal. See Johnson v. United States, 352 U.S. 565, and Mitchell v. United States, 259 F. 2d 787, cert. denied, 358 U.S. 850, wherein numerous cases from the various courts of appeal are referred to, construing the question of what constitutes effective assistance of counsel. These cases have not dealt with the specific question now presented to this court. However, a reasonable interpretation of the constitutional requirement that effective counsel must be provided indigent defendants and that said counsel must be provided the "opportunity" to prepare the case implies something more than "time." An essential ingredient to an attorney effectively representing a defendant in a criminal case, when it come to determining whether that attorney has had an "opportunity" to investigate and prepare the case, is funds to pay the necessary and essential expenses of interviewing the material witnesses and in viewing the scene of the alleged crime. Funds in this sense, and within the issues now presented to this court, are not for the purpose of paying anyyportion of what a reson- able attorney's fee would be for the defense of the case. This court believes that, without more, upon a certification of a court-appointed counsel for an indigent defendant to the effect that it is reasonably necessary for him to incur expenses for traveling and for subsistence in viewing the scene of the alleged crime and in interviewing material witnesses, the "effective assistance of counsel" mandate requires that the money for said reasonably necessary travel and subsistence ex- expenses be made available to him by the United States. However, this court believes that rule 15(c) of the Federal Rules of Criminal Procedure bolsters the contention of the defendant, Ned Germany, in this case that his counsel is entitled to reimbursement for the expenses necessarily incurred by him in rendering "the effective" representation as required by the sixth amendment to the Constitution. Rule 15(c) provides: "(c) Defendant's counsel and payment of expenses.-If a defendant is without counsel the court shall advise him of his right and assign counsel to represent him unless the defendant elects to proceed without counsel or is able to obtain counsel. If it appears that a defendant at whose instance a deposition is to be taken cannot bear the expense thereof, the court may direct that the expenses of travel and subsistence of the defendant's attorney for attendance at the examination shall be paid by the Government. In that event the marshal shall make payment accordingly." While it is true that rule 15(c) does not expressly provide for expenses necessarily incurred by counsel in interviewing a witness whose testimony is material and necessary to the issues in the case and who has served as an informer for the United States, and for the expenses necessarily incurred by counsel in viewing the scene of the alleged crime, the difference between taking a deposition (for which the rule provides payment) and the oral interview of a witness (for which the United States says there shall be no payment) is too fine a distinction for this court to draw. In this connection, see 28 U.S.C.A., sec 1915, which provides for the appointment of counsel for indigents, dispenses with the requirement that fees and costs, or security therefor, be prepaid, and, further, provides for the payment of the expenses of a stenographic transcript and the printing of the 2 The records of this court also reflect that the Honorable Warren Oney llI, as Director of the Administra tive Office of the U.S. Courts by letter dated Apr. 12. 1963. to the U.S. Penartnnent of Justice, acknowledged the suggestion or the Deartnment that thQ U.S. caurts consider reinibursing the court-appointed counsel in this case for expenses of transportation and subsistence cinurred incident to the necessary investigation of the defense of Germany, butt, at the same tine, declined to make such reimbursement for the reason that "we have neither the authority nor the antropriate funds to assume responsibility for the travel and subsistence expenses incurred cr to he incurred by the attorney in the subject case * * *." It is interesting to note that he also stated in his letter: "I agreed with Judge Jclinori that the 'effective assistance of counsel' mandate of the Constitution would require that the United States reimburse a court-appointed attorney for expenses incurred in the representation of an indigent * * *'" CRIMINAL JUSTICE ACT 143 record on appeal; all in appropriate cases is to be paid for by the United States. See also 18 U.S.C.A., sec. 3005, which provides for counsel and witnesses in capital cases at the expense of the United States. This court concludes, and now holds, that an effective legal representation in this case requires that the court-appointed counsel have funds made available to him, or have assurance that he will be reimbursed for funds necessarily expended for the reasonable and necessary expenses incurred for travel in interviewing H. L. Jones, Route 1, Dozier, Ala., and in viewing the scene of the alleged crime in Covington County, Ala. This court further concludes, and now holds, that the failure and refusal on the part of the United States to provide said funds and its refusal to reimburse court-appointed defense counsel for the reasonable and necessary expenses incurred in interviewing a material and essential witness constitutes a denial of counsel within the meaning of the sixth amendment to the Constitution of the United States, and constitutes a denial of "assistance of counsel" and a denial of "effective assistance of counsel" within the meaning of the cases above cited which have interpreted this constitutional guarantee. For these reasons, it follows that this indigent defendant, presently incarcerated in the custody of the U.S. marshal for this district, should be released and the indictment presently pending against him in this case-for the defense of which the United States refuses to provide effective assistance of counsel-should be dismissed. In accordance with the foregoing, it is the ORDER, JUDGMENT, and DECREE of this court that the indictment returned to this court on February 8, 1963, charging the defendant, Ned Germany, in one count, with violating sections 5205 (a) (2) and 5604(a) of the Internal Revenue Code, be and the same is hereby dismissed. It is the further ORDER, JUDGMENT, and DECREE of this court that the said Ned Germany be and he is nereby discharged from the custody of the U.S. marshal for this district. day of April 1963. Done, this the 19th FRANK M. JOH-NsON, JR., U.S. District Judge. Mr. STONER. I shall be brief in my remarks. I appear as chairman of the Junior Bar Conference of the American Bar Association, which is made up of members tinder 36 Years of age. We presently have a membership of 31,000 lawyers. Personally, I practice law here alone in the District of Columbia. Since my election I have had the privilege of traveling extensively throughout this country and I have spoken to many young lawyers about this very problem. They have told me time and time again of the hardships which occur daily. You will recall that in 1959 my predecessors in this office appeared before this committee and cited many cases of particular hardship in which young law vers had been assigned by the court to defend indigent criminals. I would be remiss if I did not at that time call to this cominittee's attention again several of those cases which were cited in 1959. In one case, a young attorney in Detroit was assigned to defend a defendant charged with defrauding the Government of $2 million of Government-insured savings and loan funds. In that case that young attorney was involved in the trial for 10 weeks. You will recall the case of the young lawyer from Salem, Oreg. Mr. McCutmLOCH. Mr. Chairman, at the risk of being rude, which I have no intention of, I think the entire subcommittee and all of the committee have long since made up their minds that an attorney assigned by a court to defend a defendant who has not the money to pay for that defense should be compensated and compensated reasonably well. In view of the lack of time and commitments that all of us have later this evening, I would admit that without further proof. M¥r. STONER. That assurance is very reassuring to the young lawyers of the country, I am sure, and I am glad you mnade that statement. 144 CRIMINAL JUSTICE ACT

Mr. MCCULLOCH. I will go one step further: If the young lawyers of this country were assured of compensation in a reasonable amount by the Federal judiciary, which is of a high level generally speaking, then would their problem be materially solved in this field? Mr. STONER. I think it would, Mr. McCulloch. In view of that statement, I will ask that the chairman Mr. RODINO. You would say then that there would be no need for a public defender situation or no need for this type of legislation if we merely provide for adequate compensation in the system presently set up? Mr. STONER. I do not feel capable of answering that question for every part of the country. I think that here in the District of Columbia-I am familiar with the way the Legal Aid Agency has worked and it has effectively solved the acute problems which we had here in the District several years ago. Mr. MCCuLLOCH. Of course my statement attempting to wrap up the feeling of the committee was that there should be reasonable compensation with all of its implications-the necessary money for investigation and expenses and otherwise-and that the trial judges have the right to fix the compensation and the money would be forthcoming pursuant to appropriation by the Congress. Mr. RODINO. Thank you very much. Thank you, Mr. Smith, Mr. Cummiskey, and Mr. Stoner. Mr. Lawrence Speiser, director, Washington office of the American Civil Liberties Union. Mr. Speiser, I don't mean to hurry you up, but we will appreciate your trying to hurry it. Mr. SPEISER. I have a prepared statement. I will not read it. I would like to have it submitted in the record. Mr. RODINO. It will be included. (The statement referred to is as follows:)

STATEMENT OF LAWRENCE SPEISER, DIRECTOR, WASHINGTON OFFICE AMERICAN CIVIL LIBERTIES UNION ON H.R. 4816 AND SIMILAR BILLS The American Civil Liberties Union approves in principle H.R. 4816 which provides for the extension of legal representation to those who are unable to provide it for themselves. We consider such an extension a significant advance toward the realization of the constitutional principle of due process of law. Our system of criminal justice, by employing the adversary system, posits opposing parties of roughly equal strength. If a defendant does not have adequate legal representation, the system produces results which are based on might rather than the wisdom which can come from the struggle of evenly matched advocates. The problem of crime is, in significant part, a problem of poverty. Thousands upon thousands of defendants each year are without means to employ a lawyer for their defense. True, the indigent defendant has a right, rooted in the Con- stitution's 6th amendment, that defense counsel be appointed. The appointment system works poorly, at least when counsel is uncompensated. Some defendants are represented skillfully by dedicated men, but, too often, in the competition between clients who can pay and those who cannot, the defendant without means is slighted. In the appointive system, young, inexperienced men are often pitted against a staff of seasoned prosecutors. If those lawyers who possess great skill in trying criminal cases were to be appointed regularly to serve without pay, the inequity would be obvious. H.R. 4816 meets the needs by providing adequately paid lawyers. The bill, further, permits a multiple approach in creating a system for the defense of poor persons which matches local needs. No single system, universally established, whether it be the use of a public defender, a legal aid society, the appointment of lawyers from a bar association roster will be acceptable in every place in the land. CRIMINAL JUSTICE ACT 145

A safeguard against the continued use of an outmoded plan by any district judge is provided by the bill's provision that the district court shall modify the plan when directed by the judicial council of the circuit. The bill is to be commended because provision is made for the appointment of counsel to represent a defendant who is financially unable to obtain a lawyer. The defendant need not, therefore, be reduced to a pauper's estate before assistance is extended. Many persons are able to pay something and yet are not able to bear the heavy cost of the entire litigation. Another source of strength in H.R. 4816 is that counsel is provided at every stage of the proceeding from preliminary examination through appeal. The demand of the adversary system that opponents be equal in strength is further met by the bill's provision that investigative services and the help of expert witnesses are also to be provided. In certain urban areas therefore, we may expect that investigators for defendants and other specially trained investigative personnel will be permanently furnished under a defense assistance plan. The American Civil Liberties Union is aware of some of the concerns which have been expressed about the establishment of a public defender system. A public defender may become too accustomed to working closely with the prosecution and hence his usefulness as a vigorous advocate may be impaired. Yet we submit that the experiment should be undertaken. It is important here to recall that experience with the public defender in California and elsewhere has been reasonably satisfactory. Indeed Californians are apt to be enthusiastically affirmative in their judgment. After reading a criticism of the public defender system, Dean Robert Kingsley of the University of Southern California Law School wrote on July 22, 1961; "I have know the working of both the city and county public defenders offices in this community for over a quarter of a century. They are civil service positions staffed by efficient and dedicated people, and have always received adequate support both from the board of supervisors and from the community. No one in Los Angeles would doubt for a moment but that a criminal defendant represented by either of these offices within his particular jurisdiction would receive as fine a professional as it was possible to obtain in the State of California." In one respect it is our opinion that such bills as H.R. 3504 (Farbstein, Demo- crat of New York) and H.R. 4156 (Burkhalter, Democrat of California) are better- bills than H.R. 4816. According to section (g) of these bills, a Federal court may assign a public defender to represent a person who is unable to obtain counsel "for any reason other than the fact that such person is indigent." Thus a defendant might receive assistance from Government because he or his cause are among the hated or because he and his race are the victims of bigotry and hence no lawyer will serve them. A provision similar to section (g) is in force in the Family Court of the State of New York. According to section 249 of the Family Court Act, the- court shall appoint a law guardian to represent a minor (often a juvenile delin- quent) if "independent legal representation is not available to the minor by reason of inability to pay other counsel or other circumstances." Just a few comments on some of the other bills: 1. H.R. 3446 (Whitener, Democrat of North Carolina) and H.R. 4461 (Olsen, Democrat, Montana), providing alone for compensation to counsel assigned by the court in criminal cases, just do not come to grips with the scope of the problem.. No assigned counsel system even with compensation is satisfactory to handle the problem of providing counsel for indigents in metropolitan centers. There are just too many cases in which the defendant is indigent to rely on such a hap-. hazard system. Furthermore, no provision for investigation and other services are made. This is simply less than a halfway measure. 2. H.R. 1027 (Bell, Republican, of California) provides for a public defender. system alone. This bill fails to take into account the varying demands of the. different Federal districts. It does not provide the necessary flexibility which is provided by H.R. 4816. Men who are charged with crime must have a lawyer if they are to have a fair trial. A fair trial is the right of the rich, the poor, the popular, and the scorned. It is the duty of Government to establish institutions which secure for all its people the blessings of justice. The momentum presently behind bills to provide lawyers for those unable to pay is evidence of a concern for the improvement of the administration of criminal justice. This is not the time for halfway measures. We urgently request that H.R. 4816 be amended to include authorization for the appointment of lawyers to serve those who cannot procure legal assistance for. reasons other than lack of money. 21-022-63-11 146 CRIMINAL JUSTICE ACT

Mr. SPEISER. I would like to direct my comments to what seems to be the major question before the committee and that is whether a provision for optional public defender systems should be included in any bill which is reported out of this committee. It seems to me there is a general consensus that the need has been established for something better than what we have toady with regard to providing counsel for people who are financially unable to pay. There seems to be a controversy, though, as to whether a public defender system should be permitted at all under any type of system which is adopted for the various jurisdictions. Before coming to Washington 4 vears ago, I practiced law in Cali- fornia. I practiced law in Alameda County and in San Francisco County. I did a good deal of criminal work. I had occasion to view the work of the public defender's office in both San Francisco County and Alameda County. I algo had some contact in Los Angeles. I must confess that I am somewhat puzzled by the opposition to public defender systems. They work in California. Californians who are familiar with the system are apt to be quite enthusiastic about them. They are permitted to be established in each of the counties of the State. I don't know how many of them have public defender systems, but most counties of any size iave established public defender systems. I can see, however, that where you have Federal districts which have little criminal business that a public defender system- would not be necessary and might be a needless expenditure of funds. However, it seems to ine that it should be up to each of the judicial circuits or districts to determine that. But to bar those judicial districts that have the volume of business where a continuity of representation is required from establishing public defender systems would seem to me to be a step backward from the very excellent bill which has been submitted by the attorney general. It is not only a question of compensating counsel that is involved. The Allen Report explored the various ways in which those who are financially unable to bear the cost of their own expense are disadvantaged throughout the criminal law process. It starts at the time a person is first brought before a magistrate, before a U.S. commissioner, and it continues on through the entire process tip through the appellate level. Now, unless the large metropolitan areas, and I agree these areas should be allowed to make this determination themselves, have a system in which counsel is available at the places where they are needed for immediate consultation-and I am talking about, first of all, the preliminary examination or first appearance before the U.S. commissioner-there is going to be a disadvantage that occurs there. The bill does not solve that problem-]. would like to see it do that- but it does not solve the problem of those who do not have counsel at the time of arrest or shortly after arrest They suffer a major disadvantage in their subsequent proceedings through the criminal trial However, it does have a provision so that counsel can be provided at the preliminary examination. Now, I think in the metropolitan centers you are going to find a difficulty in providing counsel in any sort of systematic basis at that early stage unless there is a public defender agency. It may be done by private means, perhaps, but I don't think that you should bar those districts who want to establish public defender systems from utilizing that method if that is what is desired. CRIMINAL JUSTICE ACT

Now, here in the District of Columbia, we have had some recent ,experience with the whole problem. A legal aid agency was established, established with public funds and, I might add, not enough public funds. A type of public-private agency was set up to admin- ister this program. The slack was taken up by appointed counsel, noncompensated appointed counsel. The slack had to be taken up somewhere. It was not provided for under the law nor were sufficient appropriations provided. This does not mean that a fully paid public defender system or perhaps a combination of systems is not needed. We do need something more than what we have right now in the District of Columbia. Now, going on to some of the arguments that are made against the public defender system: Is a public defender who is paid by public funds apt to give less than full representation that he should give to his clients? The experience in California is illuminating. The answer to that question is not only do the public defenders there give as good representation, they give better representation in many cases, compared to that provided by counsel who are privately retained. I need only point to the problem posed by what are known as the "corridor" lawyers-lawyers who hang around the corridors of the courthouses who are trying to pick up clients on a $10-, $15-, $25-basis. Their interest as far as representation is concerned is often determined by what the man can pay. If he can't pay more than $15 or $25, and they know there is not much .chance of getting more than that, you can be sure that in many cases they suggest to the man that he plead guilty. The public defender does not have that pressure on him. For example, the public defenders of Los Angeles, particularly, have been -commended by the State Supreme Court of California on the number of cases they have taken up on appeal. They did not have to take them on appeal but they have. And I think that as far as the vigor of a public defender is concerned, someone paid by public funds, you have the example here in the District of Columbia of Charles Murray, who is the head of the Legal Aid Agency, in one of the Willie Lee Stewart trials in which he risked being held in contempt of court because he was so vigorous in the representation of his client that he felt that the defense should be presented in a certain fashion and the -court said, no; you cannot do it that way. This man was paid by public funds. To suggest that because of that reason he is going to sell out his -client is just not borne out by the experience here in the District or in the State of California. I would hate to see the price paid for getting a Criminal Justice Act, a counsel bill, the elimination of the public defender provision. It seems to me that it sould be left up to the circuits to determine this for themselves. You would have the benefit of experience to see how many of them do utilize the system. As I said, coming from California I must confess I am a little puzzled by what seems to be a regional antagonism toward public defender systems, because it has worked out so well in California in the State courts. I urge you to report out the Attorney General's bill. There is one major part of it with which the ACLU disagrees, but I think that on the whole it is a good bill. It does much to alleviate the problems which were brought out by the Allen report. 148 CRIMINAL JUSTICE ACT

The Attorney General's committee's bill is an excellent bill on the whole with the options that are presented. Thank you. Mr. RODINO. Do you have any question? Mr. MCCULLOCH. I have one question, sir. Mr. Speiser, then you as an individual aid as the spokesman for the American Civil Liberties Union are advocating that this subcommittee and the committee in substance approve H.R. 4816 with all of its philosophical implications? Mr. SPEISER. Yes. I gather from the way you phrased the question, Mr. McCulloch, that you seem to feel there is some inconsistency in our advocacy of this bill and what you feel the position of the American Civil Liberties Union is or should be? Mr. MCCULLOCH. Not necessarily. I would leave that entirely for you to answer. I am not informed about the central concept of the Civil Liberties Union, but I am sure from some of the questions that you heard asked today by some of my colleagues in addition to questions that I asked and in view of the statements of some witnesses, that there are some philosophical considerations here that demand very close inspection and I asked it Only in view of that, knowing so little about your organization and only what I read in the papers. Mr. SPEISER. One of the purposes of our organization is trying further to protect civil liberties, to protect due process of law for everyone, no matter what their station in life and their circumstances. It is evident that due process of law is not being provided equally where the question of what kind of trial a man gets depends on how much money he has. The philosophical question you are raising is whether establishing a public defender system or providing an option for this in any way is going to detract from the protection of the procedural rights of an individual in criminal trials. I might say that there are a number of individuals, I think, within the American Civil Liberties Union-we have no unanimity of opinion-who probably share some of the con-- cern that has been expressed today about the philosophical questions involved in a public defender system. For example, Edward Bennet Williams, who is on the national board of the American Civil Liberties, Union, in his book, "One Man's Freedom," wrote rather vigorously against a public defender system. There is a variety of viewpoints. about this. However, this particular bill was presented to our board and was discussed and they came to the conclusion that they were in favor of the bill. Mr. MCCULLOCH. That answers my question. Mr. SPEISER. My own enthusiasm probably goes beyond that. As I said, I come from California. I practiced law there and I feel my own acquaintanceship with the public defender offices there leads me to believe that the philosophical concerns are not borne out in experience. Mr. CRAMER. You said there is one major phase of the bill with which you disagree? Mr. SPEISER. That's right. That is the elimination of the section that is included in Congressman Farbstein's bill and Congressman Burkhalter's bill which is similar to Senator Hruska's bill which provided for "any person unable to obtaincounsel for any reason other CRIMINAL JUSTICE ACT 149 than indigency as well." We are concerned about the so-called unpopular defendant and this has been discussed before in the so-called Smith Act cases in which defendants were able to pay but were not able to obtain counsel unless counsel were assigned by the court. Mr. CRAMER. Do you think that, then, you would prefer as far as you and your organization is concerned, a public defender approach as compared to compensated counsel approach by the court? Mr. SPEISER. No. Our position is we prefer the bill as it is which give an option to the various circuits and districts. Mr. CRAMER. I thought you indicated that in Los Angeles you thought the public defender system is what should be used. Mr. SPEISER. I wanted to separate what our national board has done which is to back the bill as presented, and I said that I also had some comments which I was expressing on my own to indicate my own experience in California where I felt that the public defender system had worked out excellently in various counties in California. Then I also threw in my own feeling that it seems clear to me that there should be an option because a public defender system is really not needed in rural areas, certainly where there is not a large amount of criminal defense work. Mr. CRAMER. I have yet to discover an area where testimony indicates it is needed. But, you discussed the equality of representation. What position is the defendant put in, assuming you have a public defender and that is his only option as far as choice of counsel is concerned? Doesn't the defendant have a right to choose counsel or turn down certain counsel and ask other counsel to be appointed? What happens to that right when public defenders are involved? Mr. SPEISER. He does not have any more rights at the present time under the appointed counsel system. A defendant who has counsel appointed, if he comes into the judge and wants change of attorney, I think in most cases the judge probably would grant one change of attorney but he certainly would not grant two. Mr. CRAMER. He doesn't have a chance to grant any under the public defender system. Mr. SPElSER. In most cases he is within a public defender's office and in the situation where you have a public defender's office established, I think there are probably going to be more than one individual. I think that it is unlikely that you are going to have the option exercised to establish a public defender's office merely for a single individual as a public defender. I think that the situation is- Mr. CRAMER. It would be one $20,000 a year and maybe a half dozen or a dozen $8,000-a-year men. Does that give him a fair choice? Mr. SPEISER; Perhaps more of a choice than he may even have now under the appointed counsel. He does not have the right to go to the judge and say, "I want Myron Ehrlich or Edward Bennet Williams appointed as my counsel." Mr. CRAMER. But where you have a panel of attorneys subject to being appointed by the judge, if a defendant does not desire Mr. X as suggested by the judge he has a right to ask for somebody else. Mr. SPEISER. The judge does not have to appoint somebody else. I think what has happened in most cases, where the individual has been unhappy with counsel appointed, he usually requested another 150 CRIMINAL JUSTICE ACT attorney to be appointed and the attorney asked to be relieved and" the judge would probably go along with one other appointment, but after that the man is on his own. Mr. CRAMER. So be does have his choice in that instance,. but he might not have an equal choice in the public defender situation. Mr. SPEISER. First of all, there may be a combination of options that are provided for under this and where an individual has the public- defender, it does not seem to me to eliminate his right to go to a judge and ask to have another counsel appointed. I think this can be taken care of. Mr. CRAMER. The bill does not so provide. If No. 2 is the choice of the district and circuit, that is, representation by full- or part-time public defenders and assistants, that's it. Mr. SPEISER. He may have a choice. Mr. CRAMER. The court would not have any authority under the legislation to go beyond that. Mr. SPEISER. He may have a choice among the assistants and it would seem to me that most attorneys don't wish to represent people who don't want them to and if there are a number of assistants within the office, that could be worked out so he would have somebody else who is in the public defender's office. I don't think this is any worse than the present situation and it seems to me it mlay very well be better. Mr. CRAMER. That is all. Mr. RODINO. Thank you very much for the benefit of your views, Mr. Speiser, and this concludes the hearings on public defender bill.. (Whereupon, at 5:10 p.m., the hearings on the public defender bill were concluded.) (The following was supplied for the record:)

STATEMENT IN SUPPORT OF H.R. 1027, A BILL To PROVIDE FOR THE REPRESENTA- TION OF INDIGENT DEFNDANTS IN CRIMINAL CASES IN THE )ISTRICT COURTS OF THE UNITED STATES SUBMITTED BY HON. ALPHONZO BELL, A REPRESENTA- TIVE IN CONGRESS FROM THE STATE OF CALIFORNIA Mr. Chairman and members of this distinguished committee, I appreciate very much the courtesy you have shown in allowing me to appear here today.. Although I appear primarily in support of H.R. 1027, a bill which I introduced, I shall be happy to support any reasonable proposal to provide counsel for indigent defendants which this committee deems worthy of a favorable report. The necessity for some kind of adequate representation scheme for indigent defendants overrides any and all considerations of authorship. As the members of this committee are well aware, the problem of furnishing counsel for the indigent defendant has been before the Congress for a great many years. The increasingly serious nature of the problem is in part evidenced by the fact that every year sees the introduction of more bills on the subject. There is,. I believe, a growing awareness in many quarters-both without and within the legal profession-that the present method of providing a defense for persons of insufficient means falls woefully short of our traditional notions of fairplay. The sixth amendment to the Constitution provides that the accused in a oriminal case shall enjoy the right "to have the assistance of counsel for his defense." Someone, perhaps some disillusioned indigent, has said that this provision is subject to the implied limitation, "if the defendant is rich enough to hire one." The right of every man to be represented by counsel-and this includes indigents- finds further expression in rule 44 of the Federal Rules of Criminal Procedure,. which provides: "If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel." The courts have held this to mean effective and competent counsel. It means, what the words clearly import, representation at every stage of the proceedings- CRIMINAL JUSTICE ACT 151

The promise implicit in the sixth amendment and rule 44, as reinforced by judicial decisions, holds, unfortunately, little meaning to many criminal defendants without means to retain competent counsel. Notwithstanding the crucial signifi- cance of effective legal assistance in criminal cases, we have been content to ask and sometimes require private persons in the legal profession to undertake what is in reality a community responsibility. In Federal district courts, counsel is appointed to represent such cases not only without reimbursement or partial compensation but even without payment for many out-of-pocket expenses in preparing for trial. It is a tribute to the legal profession that it has assumed this task for so many years. The unfairness of this method to the lawyer involved is plainly evident. The unfairness of ad hoc appointments to the indigent is similarly plainly evident. Because no provision is made for compensation of lawyers in indigent cases, the defendant is forced to rely upon a lawyer who will respond to the assignment by the court. This includes, often enough thank heaven, lawyers of skill and experience who perform their duties in conformity with the finest traditions of the profession. But in a great many cases, the duties fall upon younger inexperienced members of the bar who have little, if any, background in criminal cases. For many of these, the indigent case is their initial exposure after a single 3-hour course in law school, to the crininal side of the law. Even when conscientiously performing their duties, it is doubtful that they are able to give the indigent defendant effective legal counsel. I wonder, moreover, '\Ir. Chairman, how many youn attorneys are in a position to take on the expense of what might well be a long and costly trial, extensive pretrial investigation, and the cost of appeal. In the case of more seasoned counsel-particularly attorneys from small offices- an indigent assignment imposes a tremendous burden coming as it ofttimes does in the midst of a crowded work schedule. It is little wonder that in these circumstances, the representation of the indigent accused amounts to little more than pro forma representation. This situation is hardly in keeping with the letter and spirit of the sixth amendment and our clains of equal justice under the law. In order to remedy the obvious inequities of the present situation, I have introduced and urge your support for H.R. 1027. This bill, if enacted, would- First, authorize the district courts, with the approval of the judicial council of the circuit, to appoint a public defender and if the number of cases so requires, one or more assistants. These officers may be full or part time depending upon the work load; Second, give the district courts cliscretionary authority to appoint a legal aid society to provide representation for indigent defendants; Third, provide that whenever a court, in which there is a public defender, is satisfied that a defendant is unable to employ counsel because he is indigent, the court may assign the public defender to act as counsel; Fourth, empower the court to appoint counsel other than the public defender where the interest of any indigent defendant cannot be adequately represented by a public defender; Fifth, require the public defender or other counsel to represent the accused at every stage of the proceedings, including appeals; Sixth, limit the appointment of public defenders and assistants to attorneys who have practiced 5 or more years in the State or locale of the appointing court; Seventh, authorize payment of salaries based upon the service to be performed but in no case to exceed the salary paid a U.S. attorney in the district; Eighth, authorize the district courts, if they consider that the representation of indigent defendants can best be provided for by the appointment of coupsel rather than by the assignment of a full- or part-time public defender, to make such a designation. In districts having one or more cities of 500,000 or more inhabitants the exercise of this authority is subject to the approval of the judicial council of the circuit; Ninth, authorize compensation of $50 a day for appointed counsel. This is a flexible bill, Mr. Chairman. It seeks to advance the interest of justice and correct a long-standing abuse in the administration of our criminal justice. Its ultimate aim is to reinforce the validity of the adversary system by assuring a proper balance between prosecution and defense. 152 CRIMINAL JUSTICE ACT

STATEMENT OF HON. LEONARD FARBSTEIN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEw YORK, IN RE H.R. 3504 Mr. Chairman, I have introduced and now have the privilege of describing H.R. 3504, a bill which would authorize U.S. district courts to appoint public defenders and other counsel to represent indigent defendants in criminal proceedings. As the members of this committee are aware, the present law provides for the appointment of counsel by the court in needy cases, but does not provide for compensation for such legal services. The courts today must shoulder the extra task of choosing and assigning whatever counsel happens to be available; the lawyers must interrupt their professional business to handle the cases to which they are appointed and for which they must assume costs and receive no fees; and the indigent defendants must of necessity accept counsel who make themselves available only to seek the experience they lack, or counsel who accept the task reluctantly out of a regard for charity or ethics and who lack real motivation and incentive for providing the kind of expert and thoroughgoing defense enjoyed by defendants of greater means. This bill would change all that. This bill would make public defense a re- spectable professional institution, dedicated to the proposition that just as men are prosecuted equally by the public prosecutor, so also ought they to be defended equally, in keeping with the spirit of the first eight amendments to the Constitu- tion. This bill would reflect congressional approval of the recent growing movement to strengthen civil rights and to help assure equal justice under law, just as the recent case of Gideon v. Wainwright, holding that all courts in the United States must appoint counsel to represent indigent criminal defendants, reflects the approval and sanction by the Supreme Court of increased protection for criminal defendants and strengthened administration of the criminal law. H.R. 3504 provides that each district court may, with the approval of the judicial council of the circuit, appoint a full- or part-time public defender at each place a term of court is held, and may, when the public defender's workload indicates its necessity, appoint one or more full- or part-time assistant public defenders, provided the judicial council of the circuit approves. The public defender may himself, upon the authority of the court and with the approval of the Director of the Administrative Office of the U.S. Courts, appoint such clerks and investigators as are necessary. This provision provides a flexible system so that each district court may use its discretion in accordance with the kind and number of cases before it. Next the bill provides that when a criminal defendant is charged with a felony or misdemeanor (other than a petty offense), is unable to employ counsel because of his indigence, and has not waived counsel, the district court may either assign his representation to the public defender or may appoint other counsel to represent him. This provision allows for cases of conflict of interest and any other cases where the defendant's interests would not be represented adequately by the public defender. H.R. 3504 further provides that any public defender or counsel appointed shall represent his client at every stage of the proceedings, unless the court finds after appointment that the defendant is able to employ other available counsel, or some other just cause exists why the public defender or counsel should be permitted to withdraw. Pursuant to this and other provisions herein, the district court is given authority to adopt rules governing the conduct of public defenders not inconsistent with the general regulations issued by the Judicial Conference of the United States. Provision is made that the appointment of public defenders shall be subject to senatorial approval and shall be limited to attorneys who have practiced 5 or more years before the bar of a State in which the appointing district court is located. Other terms of appointment provide that the public defenders and assistants shall be appointed for terms of 4 years, shall be paid a salary to be fixed by the Judicial Conference of the United States, and shall be reimbursed the reasonable expenses necessarily incurred in the performance of their duties. An exception to the salary provision states that the pay of a public defender shall not exceed that of the U.S. attorney in that district. The bill further provides that if a district court finds that representation can best be provided for by the appointment of counsel rather than through the appointment of a public defender, the court shall have the power to appoint counsel on a case by case basis; except that in a district having one or more cities of over 500,000 inhabitants such discretion shall not be exercised without approval of the circuit judicial council. CRIMINAL JUSTICE ACT 153

The next provision states that any counsel appointed shall be (1) compensated $100 a day for time spent in preparation of defense and appeal, and (2) reimbursed for necessary and reasonable expenses incurred in representing the defendant, including costs of employing investigators. Another provision deals with the case of the unpopular client. It allows a district court, if it finds a defendant is unable to obtain counsel for any reason other than indigence, to assign the public defender or appoint other counsel. H.R. 3504 also provides that no defender or counsel appointed shall request or receive any payment from his client except on approval of the court. If such approval is granted the public defender, amounts received must be paid to the Administrative Office of the U.S. Courts. If such approval is granted to counsel other than the public defender, the amounts received shall be credited against the sum which the United States would otherwise pay counsel. Finally, the bill provides that the salaries and expenses, including witness fees, of public defenders and assistant public defenders, and compensation and expenses, including witness fees, of appointed counsel, shall be paid out of appropriations made to the judiciary for operation of the public defender system under the supervision of the Director of the Administrative Office of the U.S. Courts. This provision, which shifts responsibility for fees and expenses of witnesses sub- penaed by indigents from the Department of Justice to the U.S. courts, is desirable since it helps centralize in one appropriation all of the costs of the public defender system. Mr. Chairman, this bill is not difficult to understand. It seeks to implement that provision of the sixth amendment which reads: "In all criminal prosecutions, the accused shall enjoy the right tohavethe Assistance of Counselfor his defence." This amendment, like all provisions of the Constitution, ought to be construed liberally in order to effectuate the words and their meaning. Gentlemen, let us constru and effectuate these words of the sixth amendment, remembering that one of the great ends of this Government is, in the words of the preamble to the Constitution, to establish justice. I believe that the bill before you would contribute significantly toward the establishment of justice, and thus it is with confident enthusiasm that I recommend a favorable report on the measure.

STATEMENT OF HON. FRANK HORTON, A REPRESENTATIVE IN CONGREss FROM THE STATE OF NEW YORK, ON H.R. 4816, INDIGENT DEFENDANTS Mr. Chairman, I greatly appreciate this opportunity to comment on H.R. 4816 and urge its favorable consideration. The enactment of this measure will assure the implementation of one our most precious constitutional guarantees. We hold dearly to the principle that before the law, all men are equal. Preserving and reinforcing the constitutional provision contained in the sixth amendment that "the accused shall * * * have the assistance of counsel for his defence" is vital to this principle. In the interest of judicial equity, I feel it is imperative that Congress require the U.S. district courts of this Nation to provide representation for defendants who are financially unable to obtain adequate defense counsel in criminal cases and to require this representation at every stage of the proceedings. I also endorse the other provisions of this proposed legislation which would (1) authorize compensation for services rendered by private defenders and (2) provide for the appointment of Federal public defenders. Beyond my own comments on this bill, Mr. Chairman, I would like to submit for your consideration and the consideration of the members of your committee the pertinent remarks of one of my constituents. He is Vilas M. Swan of Rochester, N.Y. Mr. Swan, a highly respected attorney in my home community, is now com- pleting his 10th year as president of the Rochester Legal Aid Society. He also is serving in his fifth year as chairman of the New York State Bar Association Committee on Legal Aid. The concern of Mr. Swan and the two eminent legal societies which he represents is that there be included among the alternative methods by which such representation shall be secured one that permits "representation by attorneys furnished by a bar association, or a legal aid society, or other local defender organization." It is my understanding, Mr. Chairman, that the instant bill does, in fact, include such a method of counsel selection. This is most gratifying and, in my opinion, notable recognition of the competent and selfless representation which has come from these sources. 154 CRIMINAL JUSTICE ACT

A recent letter I received from Mr. Swan brings to bear some specific examples of the very fine and dedicated services which have been provided for many years by private defender organizations. I would share with you at this time a few excerpts from that letter: "In Rochester for instance our legal aid society for the past 5 years has been able to furnish defender service in the Rochester city court through funds provided by the Monroe County Board of Supervisors. The same is true of the Buffalo Legal Aid Society in Erie County. "A similar method is now being inaugurated in every cgunty of New York State under the new Family Court Act which authorizes the appellate division, as the administrator in each department, to contract with an established legal aid society to provide a law guardian for indigent minors in that court. The Rochester Legal Aid Society is now providing such service under such a contract. "The experience of many years has indicated that legal aid societies can and do furnish competent and dedicated service in the public defender field, and at a known cost." Mr. Swan also has transmitted to me copies of resolutions supporting the passage of such legislation. These resolutions, adopted by the New York State Bar Association and the New York City Legal Aid Society, are submitted here- with. Again, Mr. Chairman, may I thank you and the members of your committee for this opportunity to express these views. As a Member of Congress, I pledge my unqualified backing to this bill at such time as it may be considered by the full House of Representatives. Thank you.

RESOLUTION OF THE NEW YORK STATE BAR ASSOCIATION, UNANIMOUSLY ADOPTED AT SUMMER AlEETING, HOTEl. CONCORD, N.Y., JUNE 12, 1963 Whereas the New York State Bar Association has on previous occasions endorsed legislation to provide counsel for indigent persons accused of crime in the criminal courts of our State: Resolved, That this association acting through its executive committee endorses the proposed Criminal Justice Act of 1963 now pending in Congress to insure representation by counsel of indigent defendants accused of crime in the U.S. district courts; and be it further Resolved, That all local bar associations of our State are urged to give serious consideration to improving the provisions made in their respective jurisdictions for representation by counsel of all persons accused of crime who do not have the neans to retain a private attorney.

STATEMENT BY HON. HERMAN TOLL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA, IN SUPPORT OF H.R. 5881, THE CRIMINAL JUSTICE ACT OF 1963 Mr. Chairman, I ask favorable consideration of H.R. 5881, the Criminal Justice Act of 1963. It provides that each U.S. district court, with the approval of the judicial council of the circuit, shall place in operation a plan that would furnish paid representation for indigent defendants charged with felonies or misdemeanors (other than petty offenses). Each district court must choose from among the following plans: (a) Representation by private counsel; (b) Representation by a full- or part-time Federal public defender and assistants; (c) Representation by counsel furnished by a bar association, or a legal aid society, or other local defender organization; (d) Representation according to a plan containing any combination of the foregoing. These plans include, beside the services of counsel, such investigative, expert, and other services as are necessary to an adequate defense. Also, they must be supplemented by the circuit judicial council with provision for the representation on appeal of defendants who are financially unable to carry an appeal. The procedure for appointment is as follows: when a defendant appears without counsel, the U.S. Commissioner or the court will advise him of his right to counsel and his right to appointed counsel if he is indigent; then, if the defendant CRIMINAL JUSTICE ACT does not waive his right to counsel, the Commissioner or the court, after appropriate inquiry reveals that the defendant is indeed unable to obtainx counsel for financial reasons, will appoint counsel to represent him. Such appointed counsel must represent his client at every stage of the proceedings, in order to help assure adequate representation. But such appointed counsel may be removed if the court finds that the defendant is financially able to carry the cost of his defense. He may be replaced by another appointed counsel, at any stage of the proceedings, as the interests of justice may dictate. Private counsel appointed to represent indigent defendants shall be paid not exceeding $15 an hour for their services, plus expenses reasonably incurred. The same shall be paid to those bar associations, legal aid societies, or other local defender organizations which furnish defense counsel. Federal public defenders, who shall be appointed to 4-year terms by the circuit judicial council after being recommended by the district court, shall be paid a salary which shall not exceed the salary of the U.S. attorney in the same district. Likewise, assistant Federal public defenders employed by the Federal public defender may not be paid a salary in excess of that authorized for an assistant U.S. attorney in the same district, and the salaries of part-time public defenders and part-time assistant public defenders will be adjusted accordingly. Whenever the court is satisfied that money is available for payment from or on behalf of a defendant, he may direct that it be paid to appointed counsel or to any other person authorized to assist in the representation, or to the court for deposit in the U.S. Treasury. Any false statements made by defendants in order to obtain appointed counsel or services, or any false affidavits submitted by counsel or assisting personnel concerning claims for compensation, shall subject the persons making such state- icnts or affidavits to the penalties prescribed by law. \1r. Chairman, these are the proposals and provisions which have behind them the earnest support of the l)epartment of Justice and the President of the United States. As the members of the committee are aware, the Attorney General 2 years ago appointed a committee to study the problem before us today-the problem .of the effect of indigence on the administration of justice in Federal criminal cases. That conmittee was headed bv Prof. Francis A. Allen, formerly of the University of Chicago Law School and now at Michigan. One of the foremost authorities on criminal law and procedure, Professor Allen was the principal architect of the new and notable Illinois Criminal Code and is the author of several law review articles frequently cited by the Supreme Court. After the Allen committee made its report, the executive department drafted and this year asked Congress to enact the bill which became S. 1057. The bill before the committee today, H.R. 5881, is an identical bill. Support for public defender proposals also comes from the judicial branch of the Government. The Judicial converence supported S. 895, passed by the Senate in 1959, and S. 2900, passed by the Senate in 1962. Both were similar to the bill I support. In a decision handed down last March, the Supreme Court itself placed its stamp of approval upon the process of extending the protection and assistance which must be afforded the indigent defendant. For in that case, Gideon v. Wainwright,' 372 U.S. 335, the Court reversed its holding in the 1942 case of Betts v. Brady and held that the 14th amendment requires the State courts to obey that provision of the 6th amendment which has always guaranteed the defendant in Federal court the privilege of assistance of counsel for his defense. The Court held that the 14th amendment's commandment, that no State shall deprive any person of life, liberty, or property without due process of law, includes the fundamental concept that if a defendant is not represented by counsel during his trial because he could not afford to employ one, he has been deprived of due process. Mr. Justice Douglas, in his concurring opinion, implied that the 14th amendment's provision, that no State shall abridge the privileges or immunities of citizens of the United States, probably also applies to the case, with the result that the sixth amaendment's guarantee of right of counsel cannot be abridged by a State, because it is a privilege of the citizens of the United States. I The case was referred to as Gideon v. Cochran until afrer it was argued before the Court. Rule 48, sec. 3 of the rules of the Supreme Court provides: "When a public officer is a party to a proceeding here in his official capacity and during its pendency (lies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substitute party * * *." Gideon held, and now Wainwright apparently holds, the office of "Corrections Director" in the government of the State of Florida. 156 CRIMINAL JUSTICE ACT

Thus, for the first time in our history, the Supreme Court has guaranteed to, every defendant who can't afford defense counsel the right or privilege to have one appointed by the court, to the end that equal justice shall become the practice in every State and Federal court in the Nation. The Court, without dissent, clearly shows that it will not tolerate unequal justice in any of the courts of the- Nation. While the Supreme Court seeks to extend justice to the State and Federal. courts equally, let us follow the liberal spirit of their example in another direction: by providing an effective, standing system of defense that offers justice equally among the poor and well-to-do alike without discrimination. Let us do away with that meager law which provides that the court shall appoint counsel to represent criminal indigents, but is deaf and dumb to the real question of who will pay costs and fees and who will be a defense lawyer for nothing. Let us, as we implement the sixth amendment's mandate, give the Federal courts and the people of this country a law which reflects the wisdom of this Congress, a law which reflects our devotion to the Constitution, a law which makes one important sentence of that document for the first time in our history a complete reality.

DEFENDER ASSOCIATION OF PHILADELPHIA, Philadelphia, Pa., May 6, 1963._ Hon. H'ERVMAN TOLL, Congress of the United States, House of Representatives, Washington, D.C. DEAR HERMAN: Thank you for your letter of May 3. Needless to say, I was delighted to learn of your sponsorship of H.R. 5881.. Ted Voorhees, as you may know, is acting president of the National Legal Aid and Defender Association and as such will appear before a subcommittee of the judiciary of the Senate some time this month. It might be a good idea for you. to sound him out on H.R. 5881. Personally, I have come to the view that this most important bill to provide representation to indigent defendants in Federal court is such an urgent necessity that it serves little purpose to quibble about detail. I am in favor of your bill in. principle and substance. With best wishes, Sincerely, HERMAN I. POLLOCK.

NATIONAL LEGAL AID & DEFENDER ASSOCIATION, Hon. EMANUEL CELLER, Chicago, Ill., June 4, 1963. Chairman, Judiciary Committee, House of Representatives, Washington, D.C. DEAR CONGRESSMAN CELLER: We appreciated the time your committee gave representatives of the American Bar Association to state its views concerning the pending legislation to provide compensated counsel for indigent defendants in the Federal courts. However, as I listened to the various witnesses, I had the feeling that the public defender concept did not have a complete or accurate explanation as would have been the case had I anticipated the rather sharp criticism, directly and by implication, of the public defender principle and practice. Therefore, I am writing this letter, hoping that I may be able to answer some of the questions asked by members of the subcommittee (especially during the late afternoon of May 22, 1963) and supply some information on issues raised by some of the witnesses. Before I comment further, I wish to say that the National Legal Aid & Defender Association (formed in 1911) is an affiliate of the American Bar Association, with its headquarters in the American Bar Center, and composed of members representing all the various organizational forms of legal aid and defender services-public and private. We do not contend that there is any one best method of supplying counsel that should be adopted in all jurisdictions. Specifically, we know one type of service may be desired and work effectively in a particular area and not in another. Further, we know that no one method is 100 percent perfect; that under all conditions each type has certain weaknesses and certain strengths. These have been fully explored in many of our objective studies anc CRIMINAL JUSTICE ACT 157 reports, particularly the book, "Equal Justice for the Accused," published by Doubleday. It is for these reasons that we support your bill that would permit each district to use the plan best suited to meet local needs. After many years of working with defender programs and studying the methods used throughout the country, we have developed some general standards which apply to any service. These broad yardsticks were discussed before your committee and are now a part of the record. In order to give your committee a fuller and, I believe, a more accurate statement concerning the public defender, I have chosen a few of the references made during the hearing. 1. The public defender "experiment".-This system is no longer experimental. It is a half century old. The first State to establish the plan was Oklahoma in 1911, followed by Los Angeles County in 1912. There were defender offices in 88 jurisdictions by 1956. Of the 114 defender services now existing, 93 are "public" offices. The public defender plan is virtually statewide in Connecticut, Rhode Island, California, and Illinois. After a study of this system, the Institute of Judicial Administration ("Public Defenders" p 25, 1956) reported, "Public defender offices originated in a need for representation of the indigent criminal defendant. They have survived because they appear to be performing the task allotted to them in a satisfactory manner " One law school professor who had examined the public defender system on a national scale wrote to the institute, "I was very much struck with the high moral and obvious devotion to duty the public defenders perform, as well as their obvious competence in court" ("Public Defender," note 3, ch V, p 245). In 1959, the Supreme Court of Connecticut had this to say in State v. Reid: "The attack on our public defender system is too obviously lacking in merit to warrant discussion. Its best refutation is the work of the public defenders themselves in the more than 40 years in which the system has been in effect in Connecticut." Also, in People v. Adamson, 34 Cal. 2d 320, the California Supreme Court said: "This court can take judicial notice, too, that it would be difficult to find in California any lawyers more experienced or better qualified in defending criminal cases than the public defender of Los Angeles County and his staff." 2. The government as "paymaster".-This statement was made repeatedly, suggesting that a public defender could not render independent service because he is paid from tax sources. The judges are paid by the Government. So are individual lawyers under the compensated counsel system. The New York Legal Aid Society that operates criminal branches for two Federal district courts-a system that works so efficiently-the one that was highly praised by Judge Dimock, receives much (I believe more than $100,000 annually) of its budget from tax funds. So does the Philadelphia Voluntary Defender-the one that has a national reputation for effectiveness. Of the 114 defender offices in the United States, 102 receive financial assistance from "the Government." I suggest that the safeguards in the method of selecting the public defender are a more important factor than the source of the finances. No one questioned the excellent work being done in the District by the Legal Aid Agency where the Government is the paymaster. 3. No one wants a public defender in his district.-As early as 1937, the Judicial Conference adopted a resolution calling for the appointment of a public defender in those districts in which the amount of criminal litigation justified the presence of such an officer (report of the Judicial Conference, September 1937, pp. 8-9). In 1939 the House of Delegates of the American Bar Association endorsed the public defender principle. In 1960 a poll of Federal judges, law school deans and professors, and ABA members showed that 89 percent favored public defender legislation. ("Federal Legislative Proposals To Supplv .Paid Counsel to Indigent Persons Accused of Crime," p. 705, 45 Minnesota Law Review, 1961.) The following bar associations have recently voted to support public defender legislation in the Federal courts: The State Bar of California New York Bar Association State Bar of Arizona North Carolina Bar Association State Bar Association of Connecticut State Bar Association of North Dakota Indiana Bar Association Ohio State Bar Association Also, more than 20 local bar associations have, within the last few weeks, given their support to the Criminal Justice Act now pending in Congress. Arthur S. Bell, Jr., chairman of the Los Angeles County Bar Association Federal Courts Criminal Defense Committee (1,000 cases handled yearly) reported last 158 CRIMINAL JUSTICE ACT year: "Based upon years of actual experience (this) association favors the passage of H[.R. 2696 to fill a critical need." ("Fair Play in the Federal Courts," National Legal Aid and Defender Association,) In 1961 (September 1) John C. Satterfield of ,Jackson, Miss. (then president of the American Bar Association), wrote to this Judiciary Committee, saying in part, "A public defender, devoting his full time in the heavily populated districts, can be provided; the question of financial eligibility will be easier to screen; better and more complete records can be kept to show that in our courts counsel is available regardless of the defendant's ability to pay. The critical and haphazard conditions now existing under the ad hoc court appointment system can be corrected." 4. Public defenders do not render as competent service as lawyers in private practice.-It is very difficult to obtain data on "competence" of counsel. This is, in the main, a subjective evaluation. However, there is no persuasive evidence that the -public defender is less competent than the avarage lawyer in private practice. The illustrations used to suggest that a public _efender is less competent are very unusual and rare situations. If isolated facts are to be used, one might point out that in 1962 the Cook County public defender obtained 52 percent acquittals in cases tried before the court or jury (see annual report 1962); that in 1961-62 the public defender of Alameda County, Calif., tried 63 jury cases: 36 defendants were found guilty, 10 were acquitted, 13 were guilty of a lesser offense, in four cases the juries disagreed. "Equal Justice for the Accused," a report of a study of the various plans for supplying counsel for indigent defendants, states (p. 73): 'As in the case of the voluntary-defender system, the "law office" approach of a public-defender organization allows experienced, competent, and zealous representation to be afforded the indigent accused. It is clear that there is nothing inherent in a properly constituted public defender system which prevents its providing such representation. I "In most of the jurisdictions examined by this committee, the public defender system has the reputation of giving representation of a quality equal to that of the more qualified private attorneys. * * *" 5. Step toward "police state." -Judge Edward Dimock, a charming, intelligent and highly articulate mai, has expressed the fear that adoption of the public defender system is a step toward the police state. This is an argument he has been using-almost alone among the Federal judiciary-for years. His theories were fully refuted by Gerald W. Getty, public defender of Cook County, and the Honorable C. J. Harrington in an article published in the American Bar- Association Journal ("The Public Defender: A Progressive Step Toward Justice," 42 ABAJ 1139-42, 1956). I do not believe Judge Dimock has ever sat as judge in a case where a public defender was involved, nor ever tried a case with or against a public defender. His objections are theoretical and his, fears are not warranted by the actual experience in jurisdictions having public defenders. The public defender system makes more certain the continuation of the adversary process which must be based upon challenge. There is nothing totalitarian about a government that goes so far as to say 'We will give reality to the doctrine of presumption of innocence by providing the inoigent accused with counsel." In "Equal Justice for the Accused" (p. 45), this comment is made concerning. defender programs: "Moreover, it is ironic that a charge which is sometimes intended to imply the exalting of the State at the expense of the individual should be levied against sytems which grew up because of the recognition of the need for the individual to be protected against the State." Further, we should not lose sight of the many advantages the public defender- system has over the assigned counsel plan, at least for the metropolitan centers: (a) This "law office" approach can provide lawyers who specialize in criminal. law practice. Many of these make a career in the public defender office. This situation can be contrasted with the problem of getting a sufficiently large panel of experts in criminal law practice in large cities where there is a high degree of specialization-with few entering the criminal field. (b) There exists better facilities for screening for eligibility of clients; for the keeping of uniform records; for providing services of an investigator as needed. (c) The public defender is always available for assignments--even at preliminary hearings. (d) The public defender has the same ethical and professional obligations as lawyers appointed on a case-by-case method. Yet he does not have the other inter(st to detract him from his full-time job of representing indigent clients. CRIMINAL JUSTICE ACT 159

As a compromise, if such seems necessary to get agreement upon a bill, I suggest that the public defender plan be limited to nistricts having a population of stated (large) size. Sincerely, JUNIUS L. ALLISON, Executive Director.

NEw YORK STATE BAR ASSOCIATION, Albany, N. Y., June 19, 1963. Re Criminal Justice Act of 1963. Hon. EMANUEL CELLER, House Office Building, Washington, D.C. DEAR CONGRESSMAN: Your attention is respectfully called to the following resolution adopted by our executive committee, June 12, 1963, on behalf of our 12,600 members: "Whereas the New York State Bar Association has on previous occasions endorsed legislation to provide counsel for indigent persons accused of crime in the criminal courts of our State: "Resolve/, That this association, acting through its executive committee, now endorseAkthep nrV frtniinal Justie Akel- of 1962 now-,pandino in Congress to insure rep, e i.t!UL V PoTx'ibel ofdiilfdeAtiefenudvWa 4cmus Lzf crime in the U.S. dis rict~cQ urts. We urge tJ 'bu-gv this 'important legislation vour active consideration and support. Yours very truly, JOHN E. BERRY Executive Director.

THE STATE BAR OF CALIFORNIA, San Francisco, May 20, 1963. Hon. EMANUEL CELLER, Chairman, Committee on the Judiciary, House Office Building, Washington, D.C. DEAR CONGRESSMAN CELLER: It may please you to know that the Board of Governors of the State Bar of California has formally approved H.R. 4816 authored by you. At the board's direction I am advising California Members of the Congress of the board's action and that the board respectfully suggests to each of them that the establishment of a public defender system for the courts of the United States merits his support. We are advising, also, the Attorney General of the United States and representatives of the American Bar Association of the board's action. Very truly yours, JACK A. HAYES, Secretary.

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, Washington, D.C., May 22, 1963. Hon. EMANUEL CELLER, Chairman, Subcommittee No. 5, Committee on the Judiciary, House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN: In connection with hearings held by Subcommittee No. 5 on H.R. 4816, the Criminal Justice Act of 1963, and related bills to provide for legal representation of defendants in Federal courts who are finaDcially unable to obtain legal counsel, I wish to express the support of the American Federation of Labor and Congress of Industrial Organizations for such legislation. In a resolution on civil liberties, the fourth constitutional convention of the AFL-CIO declared: "The security and well-being of America depend on maintaining and expanding our civil liberties, due process of law, and other basic democratic procedures. We must remain eternally vigilant to see that our fundamental liberties are not chipped away but strengthened." In line with this resolution, therefore, we support the goals of H.R. 4816, which directs each U.S. district court to put into operation throughout the district for 160 CRIMINAL JUSTICE ACT defendants who are financially unable to obtain adequate legal representation a plan for such representation, which may include representation by a full-time or part-time Federal public defender and assistants. The right to adequate legal counsel is essential to maintain due process of law and other basic democratic procedures. This right must not be denied to any citizen simply because he lacks funds. Therefore the AFL-CIO supports legislation which will authorize and direct our Federal judicial system to appoint public defenders to protect the rights of those citizens who canot afford adequate legal counsel. I respectfully request that this letter be included in the record of hearings on and related bills. H.R. 4816Sincerely yours, ANDREW J. BIEMILLER, Director, Department of Legislation. 0