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50 Candles for the Criminal Justice Act

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On Tuesday, August 20, the Law Library of Congress and the Federal Bar Association (FBA) Criminal Law Section co-hosted a program called “The Criminal Justice Act at 50 – The Past, Present, and Future of the Right to Counsel in the Federal Courts.” The event marked the beginning of a year-long commemoration of the 50th anniversary of the federal Criminal Justice Act of 1964, which established the right to counsel in federal court under the Constitution’s Sixth Amendment.

The event took place before a large crowd in the Montpelier Room of the James Madison Memorial Building, and was streamed live via C-SPAN.

After introductory remarks by David Mao, Law Librarian of Congress, Geoffrey T. Cheshire, chair of the Federal Bar Association’s Criminal Law Section, welcomed U.S. District Judge Gustavo Gelpi, Jr., president-elect of the Federal Bar Association; James R. Silkenat, president-elect of the American Bar Association; and U.S. District Judge Catherine Blake, chair of the Federal Judicial Conference Committee on Defender Services for introductory remarks on the history and current status of the Criminal Justice Act (CJA).

Judge Gelpi began with an introduction on the history of the right to counsel in federal criminal cases. He pointed out that, although the right to counsel was a constitutional right guaranteed by the Sixth Amendment, in practical terms, it was not accessible for those who lacked sufficient funds to hire adequate counsel until a series of Supreme Court decisions changed the tide.  In 1932, the U.S. Supreme Court, in Powell v. Alabama, 287 U.S. 45, ruled that the failure of a state to provide adequate counsel to poor and illiterate defendants facing the death penalty violated the due process clause and “would be little short of judicial murder.”  Four years later, in Johnson v. Zerbst, 304 U.S. 458 (1938), the Supreme Court held that the failure to provide counsel to an indigent defendant in federal court was a fundamental violation of the rights of an accused.  Justice Hugo Black, writing for the majority, declared that the right to counsel is “necessary to insure fundamental human rights of life and liberty.”

Judge Gelpi continued to explain that, following the Zerbst case, the Federal Conference of the United States and the Attorney General and other knowledgeable experts called for the establishment of a federal defender system, as the best way to provide the right to counsel.  Although many bills were introduced, hearings held, and reports written on the subject, no legislation was passed by Congress during the 1940s and 1950s.  Judge Gelpi spelled out the continuing issue: although the federal courts assigned counsel to defendants in need, these attorneys did not get paid or reimbursed for their work and expenses. As a consequence, defendants did not always receive adequate representation.  It was not until Robert Kennedy appointed a special committee to review the issue after becoming  U.S. Attorney General in 1961 that the problem of indigent defense in federal court proceedings was examined systematically.

Following the special committee’s study and report, President John F. Kennedy, in his State of the Union address on January 14, 1963, asserted that the right to competent counsel must be assured to every man in federal court regardless of his means.  Soon after this address, Senator Roman Hruska (R-NE) introduced legislation in support of the federal public defender system.  Similar legislation was introduced in the House but passed without the federal public defender language.  A conference was called to resolve the differences in the bills.  On August 6, 1964, the conference committee report, which included the federal public defender system language, was submitted to Congress.  Both chambers agreed to the legislation and the bill was signed into law by President Lyndon Johnson on August 20, 1964.

Following Judge Gelpi’s historical perspective of the CJA, ABA President Sikenat, and Judge Blake spoke about the current state of the CJA.  One theme that ran through their remarks was the impact of the sequestration on funding for the federal public defender program.  Mr. Silkenat described the cuts as “. . . imperiling the delivery of effective legal representation for poor people accused of federal crimes.”  Judge Blake predicted that funding cuts would delay and postpone criminal proceedings which would lead to longer stays in expensive pretrial detention facilities for defendants, perhaps to the point of impacting the constitutional right of the defendant to a speedy trial.

Following the distinguished speakers from the bench and bar, a lively panel discussion on the topic of “Striving for a Meaningful Right to Counsel” was moderated by Mr. Cheshire.  The panelists were Norman L. Reimer, Executive Director, National Association of Criminal Defense Lawyers; Thomas Giovanni, Counsel, Brennan Center for Justice at New York University School of Law; David Patton, Executive Director, Federal Defenders of New York, and Cait Clark, Assistant Director for Defender Services, Administrative Office of the United States Courts.

After the program, the crowd remained to browse notable items from the Law Library’s rare book collection, including a legal writ in the hand of Abraham Lincoln from early in his legal career.  Jim Martin, a senior legal research specialist at the Law Library, coordinated the display.


A petition for a writ of process handwritten by Abraham Lincoln from 1839.

We would like to thank all participants in this event as well the American Bar Association, the National Association of Criminal Defense Lawyers, the National Legal Aid and Defender Association, the Brennan Center for Justice, and the Constitution Project for their support.

In addition to viewing the program on C-SPAN, you may catch up with Robert’s tweeting of this program via @LawLibCongress and the hashtag #CJAct.


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